Thursday, September 26, 2019

Part I

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The Expansion of Law and the Decline of Politics: On Both Sides of the Atlantic, the Role of the Courts Continues to Grow

Events continued to spin on both sides of the Atlantic with political crises, both in the United States and the United Kingdom. Yesterday in the United States, as promised, President Trump released a transcript of his conversation with the Ukrainian President. In that conversation, the President of the United States very clearly called upon the government of Ukraine to consider, at least to investigate, the involvement of both former Vice President Joe Biden, and his son, Hunter Biden, in what the President insinuated could be at the very least criminal activity.

The Ukrainian President, according to the transcript, said that soon the prosecuting attorney would be his appointee, and would indeed proceed with that investigation. Democrats are charging that there was a form of quid pro quo with funds being held back by the White House from Ukraine that would be necessary defense expenditures in order to bring pressure upon the Ukrainian regime.

But at the same time, President Trump’s defenders said that that’s ridiculous. That in the phone call there was no quid pro quo, there was no, ‘If you do this, I’ll do that.’ Instead, they appeared to be two completely separate issues. Again, you are looking at the fact that all of the predictable political lines of both attack and defense are exactly what we would have expected.

Yesterday, even though the transcript was released — probably in this context, a smart move by the White House, but a dangerous precedent — yesterday, most of the attention was on the transcript and the escalating pressure when it comes to the impeachment inquiry that was announced just a matter of a couple of days ago now by the Speaker of the House, Nancy Pelosi. As I said on The Briefing yesterday, all of the predictable political lines are in place, and it will actually take some time before the political smog begins to clear, then Americans can figure out what’s really going on here.

In Great Britain, the Parliament was reconvened in the aftermath of the United Kingdom Supreme Court decision, a unanimous decision, that came to the conclusion that British Prime Minister, Boris Johnson had acted unlawfully and unconstitutionally in asking the Queen to prorogue the Parliament, that is to hold it out of session, for an extraordinarily long period of time. The length wasn’t really the issue, however, but the timing, because this would have effectively removed Parliament for much decision making when it comes to the Brexit decision.

But one of the things I want us to note is that on both sides of the Atlantic, even though what is being described is often called a political crisis, even a constitutional crisis, there is a great deal of commonality here that comes down to the role of the courts.

That point was made very clear in a headline article by reporters, Mark Landler and Benjamin Mueller, as they wrote, “Britain’s all-consuming debate over Brexit has dragged another of its respected institutions into uncharted territory, as the Supreme court struck down Prime Minister Boris Johnson’s suspension of Parliament, an extraordinary intervention by the judiciary into a political dispute.”

Now, the really interesting thing to note here is that when you have the coverage of this situation in Great Britain that took place just this week, the warning that is so often articulated is that the United Kingdom Supreme Court had better not become like the Supreme Court of the United States. So, what’s really going on there? Well, it has to do with the fact that in the United States in a political vacuum, in the breakdown of Congress’s ability to pass legislation, the reality is that the Supreme Court of the United States has stepped in where otherwise it would have been considered unseemly.

Furthermore, in the United States, the Supreme Court, and the courts in general, have irrigated unto themselves the right to decide contentious moral and social issues, and also particularly issues in which there is a claim of rights, or a conflict of rights. As just about all observers have noted, that decision this week by the United Kingdom Supreme Court was without precedent. There had been no previous instance of the Supreme Court of the United Kingdom involving itself in what was essentially a political question. The justification claimed by the court is that it was required to do so, because of a breakdown in the political process, but that’s very similar in reality, if not in argument, to what we see in the United States with the expanding role, power, and influence of the Supreme Court of the United States.

Now, just consider the fact that every single appointment now to the Supreme Court becomes a battle royale in the larger culture. Why? Well, that wasn’t true so much in the past when the Supreme Court didn’t deal with and certainly didn’t claim the territory of so many of the most contentious questions in the country, but now it does. Americans are increasingly accustomed to seeing judges, even district court judges at the federal level hand down an injunction against the executive branch that basically ties the hands of the President of the United States and the entire administration.

That’s been true for some time now, and it is basically a problem in our constitutional order, but when it comes to the Supreme Court, Americans alive today in the year 2019 are pretty much accustomed to the Supreme Court of the United States deciding that it is the decider on so many the most contentious issues of the day. Just think about abortion, the entire LGBTQ revolution, think about same-sex marriage. The Supreme Court has taken that question out of the hands of the legislature, and frankly, the legislature has proved itself unable to decide those issues. That is not the way our constitutional order was designed to work.

Looking to the developments this week in the United Kingdom, the reporters for the New York Times wrote, “Critics warn that in taking upon itself the right to adjudicate disputes between the government, and Parliament, the court would soon find itself thrust into the same charged highly partisan waters that have politicized decisions of the United States Supreme Court in recent decades.”

James Grant, a senior lecturer in law at King’s College London said, “It’s absolutely stunning.” He went on to say “It,” meaning the Supreme Court, “has developed long, established common law principles in a new direction.” That’s an understated British way of saying, “This represents something of a revolution right before our eyes.”

Here we have another potential link between what’s happening in the United Kingdom and now in the United States, but there’s also more to the story here in Britain, because the court that decided this issue just this week was only established in 2009. It is not the Supreme Court of England, it is the Supreme Court of Great Britain, which includes Scotland, and Northern Ireland, and Wales, and it has not been tested in such a way when it comes to Britain’s constitutional order. Remember, it is an unwritten constitution. It is not yet clear if this means a precedent in which the Supreme Court of the United Kingdom is going to be now ardently politicized, but it does raise huge constitutional issues here.

Who’s actually in charge? Is the Prime Minister in charge? Is the Parliament in charge? Is the Queen in charge, or is the Supreme Court of the United Kingdom in charge? Those are huge questions, and this week is certainly an unsettled time in Great Britain. The worldview issues that are implicated in this are massive. How exactly is the will of the people to be exercised? Without a clear separation of powers like we have in the United States, how do you know how the Parliament is to act, how the Monarch is to act, and how the Supreme Court is to act, and especially with this court being so new in Britain’s long democratic order, how is this authority to be understood now?

Jonathan Sumption, a former member of that court, now Lord Sumption wrote a recent book just released entitled Trials of the State: Law and the Decline of Politics. Lord Sumption points to the fact that as politics has receded, law has grown massively in influence, and Lord Sumption, though a student of the law, and a former jurist points out that can’t be healthy, and he points to the Supreme Court of the United States as an example of the problem, and yet he goes to an American as an authority he will cite on the nature of the problem.

That authority is none other than President Abraham Lincoln, who in his first inaugural address delivered in 1861 warned of the usurpation of politics by the Supreme Court. President Lincoln said, “The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that imminent tribunal.”

On both sides of the Atlantic, there is the danger that an imminent tribunal speaking supposedly in the name of the people can effectively gather unto itself unchecked political power. The fact that this danger is now found on both sides of the Atlantic is yet another sign of our times, and as the subhead to Lord Sumption’s book indicates, it represents the vast expansion of law, and the decline of politics, and in this context, that is certainly not healthy.

Part II

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Globalism vs. Patriotism: The Necessity of Patriotism in a Global World

But of course, right here in the United Kingdom, it is a very hot political dynamic, and an unfolding story in this crisis. The deadline is the October 31 date for a hard exit if there is no agreement for Britain to depart from the European Union. Just yesterday, walking in front of the palace of Westminster as Parliament was reconvening, and awaiting to hear from the Prime Minister, I walked right into a protest with the two rivals sides loudly voicing their opinions and flying their flags.

On one side, the Brexit argument. On the other side, a globalist argument supporting the Union. It was very interesting that each simply communicated the point by the flag that they were waving — the flag of the European community in some hands, the Union Jack, the historic flag of Great Britain on the other hand. And that same dynamic played out in New York City this week as the President of the United States, Donald Trump addressed different bodies of the United Nations related to the fact that the general assembly is back in session.

As the Daily Telegraph of London reported from New York, “Donald Trump has said, ‘The future does not belong to globalists,’ as he told world leaders gathered at the United Nations to embrace patriotism, and put their own interests first.” The London newspaper cited the American President as saying to the United Nations, “If you want peace, love your nation. Wise leaders always put the good of their own people and their own country first. The future does not belong to globalists, the future belongs to patriots.”

Now, that’s a very interesting argument. We need to look a little closer what the President was saying, how the United Nations was hearing what the President said, and how this discussion has unfolded, and now will unfold. The President juxtaposed patriotism and globalism. He carefully did not use the term “nationalism,” one of the most loaded terms of the 20th century, but the term “nationalism” is not a term that can be long avoided.

The President was invoking patriotism, which means by its very rooted love of nation, and he says that love of nation should drive a nation first, and only after that should there be a concern for how that would be translated into a global application or into foreign affairs or the concerns of other nations. Now, here’s something just interesting from a Christian worldview, that might sound shockingly nationalistic. It might sound as if the President was saying, “My nation is the only nation that matters.” But actually, he was articulating what every single nation actually believes as judged by how it acts, especially over time.

That is not to say that nations never act in a way that comes at their own expense in the immediate term or is an evidence of self-sacrifice or of moral concern. Obviously, nations just like individuals do that, but the big and most interesting question is, “Why do they do that?”, whether it’s an individual or collective like a nation. The question is, “Why does an individual or why does a nation act as it acts, behave as it behaves, and decide as it decides?” The bottom line is, every individual in every nation will in the end do what the individual or the nation believes is in its own interest.

That’s really important, because even though that sounds like a very cold calculation, that’s actually how it works, and when it comes to say, a self-sacrificial action or an action of generosity or an action of moral concern, that comes from the fact that the individual or the nation has factored that into the moral calculus, even the political or economic calculus, that is a part of that decision making.

Now, for a Christian looking at a Christian individual’s moral responsibility in making decisions, we are to love our neighbor. We are to make decisions for the good of many, and especially to reflect that in how we live and how we act. But we essentially do that because we believe it’s right, and acting in terms of consistency with our own moral principles, we act like ourselves.

President Trump was stating the matter in summary form, and there are many, especially when it comes to this sort of squishy left who are going to complain that the President didn’t state the matter rightly, but he did state the matter truthfully. And even as you have a call for collective action or you have a call for generosity or you have a call for moral concern for others, it needs to be stated in terms of the fact that this is about ourselves doing what we do because we are who we are.

Another matter of just political realism is that the people in a country, and this becomes especially crucial if we believe that the consent of the governed is necessary for good government, eventually the governed will make very clear to the governors that they expect for their own national priorities, national security, and national good to be considered in this calculus, actually considered first.

The more contemporary, cosmopolitan worldview, here referred to as globalism suggests that our moral responsibility starts first with the biggest possible picture, if not the entire cosmos, then at least the entire planet, but that’s not actually true. It’s not workable, and from a Christian worldview perspective, we can’t possibly hope to help others if we make ourselves insecure.

We can’t do something for others unless we are in a position to do it. There is a very dangerous form of patriotism that can fall into fascism, but the modern cosmopolitan worldview is unable to sustain any form of patriotism, able to hold a society together in order for a society to do good both at home, or abroad.

Another moral lesson of history, by the way, is that if a nation and its leaders does not inculcate a healthy patriotism, then it will be replaced not by a lack of patriotism, but by an unhealthy patriotism.

Part III

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Where Do Rights Come From? President Trump Addresses Religious Freedom at United Nations Meeting

But President Trump at the United Nations this week did something else historic. He made very clear the determination of his administration and this nation to affirm religious liberty all around the world. As USA Today reported in a front page article, “Describing the USA as a country founded on religious tenets, President Donald Trump urged other nations Monday to join him in trying to end ‘religious persecution.’” By the way. For some reason, USA Today put the words ‘religious persecution’ in quotation marks.

They quoted the President as saying, “The United States is founded on the principle that our rights do not come from government, they come from God.” That’s actually an extremely important argument, and one that isn’t often made at the United Nations, but should be, and I’m very thankful that this week it was.

This is one of the great dividing lines in worldview conflict today, even though many people do not see it. The modern secular worldview is absolutely determined to make claims for human rights, and to claim a concept of human dignity, but it can’t explain how either those rights or that dignity would be grounded. If the human being is just a cosmological accident, that how can you use language about inherit rights or inherit dignity?

Where does that dignity come from? Who is the grantor of those rights? How do those rights even exist, and how are they to be understood and protected? In reality, this is the great secular predicament, and it’s a predicament that is becoming very apparent all over the world. You have a regime of human rights that doesn’t have any explanation for how human beings exist, denying a creator, and making very clear that human beings are just materialist accidents, there is no real argument for how those rights are to be grounded.

The only argument that seems to be available is that government grants those rights, but that is an extremely dangerous argument. If government can grant the rights, government can un-grant them. The President made that point in a statement in which he said that the United States is founded on the principle that rights do not come from the government, they come from God, and of course that’s the language of the Declaration of Independence of the United States that states explicitly that all persons are endowed by their Creator with certain unalienable rights.

The United States is still unpacking all that that requires of this nation in respect for human rights and human dignity, but the reality is it establishes a base platform acknowledging the fact that those rights do not come from the government, that instead it is the government that must respect and protect those rights that are given by God.

In the address given at the United Nations, the President of the United States was addressing a very mixed group when it comes to worldview, but the predominating direction of that worldview is in a very secular direction, which turns out also to be a very dangerous direction. In the course of the President’s comments, he declared a $25 million fund to back religious freedom efforts around the world, and he also launched a coalition of businesses that was declared to be committed to religious freedom.

The President went on to say, “Today, I ask all nations to join us in this urgent moral duty.” William Inboden, professor at the University of Texas at Austin and a veteran of the George W. Bush administration, an official responsible for working on issues of religious freedom, said that President Trump may be the most visible and active President on this issue of any recent President since Ronald Reagan.

Interestingly, there were critics of the President. One was cited in the article. That was Ned Price, a spokesman for the National Security Council under President Barack Obama, who described the President’s words at the United Nations as, “A play for the evangelical crowd in the United States.”

Now, just looking at the President’s speech in its historical context, could there be the possibility that the President knew that this speech will give encouragement to evangelical Christians? Yes, of course, that’s undoubtedly true, but consider the fact that the President was speaking to the United Nations about an international context, and the President was making very clear he was defending and the United States was calling upon other nations to defend religious liberty for all peoples anywhere, whatever their beliefs, wherever they are found on planet earth.

It is one of the saddest commentaries of our time that there are those who will criticize the leadership of the United States of America for speaking up for what was long and rightly identified as America’s first liberty. If America does not stand for religious liberty, then what in the world do we now stand for?

Part IV

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French Parliament Debates IVF Technology for Those Outside Heterosexual Marriage: Why the Presence of a Father Is So Important in the Life of a Child

But next, we shift to France, where there is a very important issue of controversy this week, as Harry Agnew of the Financial Times reports, “The French Parliament yesterday began debating a controversial bioethics law that would open fertility treatments to women outside heterosexual marriage.” As the Financial Times explains, “The extension of in vitro fertilization to all women was one of the campaign promises of President Emmanuel Macron, and would mark the first big social reform of his five year term. The legislation would allow homosexuals, and single women to have free access to fertility treatments such as IVF, under France’s National Health Insurance.”

Now, we often hear, and perhaps accurately about a culture war in the United States as if the United States is the only place such a cultural conflict is being played out. That’s clearly not so, and here you have one in France just this week, and it’s big. Its implications are massive. Just consider the fact that right now, before these reforms that are now proposed could take shape, right now, IVF and sperm donation and other forms of this kind of reproductive technology are only available to heterosexual couples who have been diagnosed with infertility and that requires some effort to have a baby that turns out to be unsuccessful, and thus the National Health Insurance there in France will pay for the reproductive technologies.

But note, the issue here was that the development of these particular technologies was to deal with the challenge of infertility, but infertility implies that the normal state is fertility, but fertility is only a normal state for a man, and a woman. Thus, what you’re looking at here is the fact that once again, we are seeing technology and a debate over technology turn out to be a debate over the most basic and fundamental questions of life, including “How in the world babies are to be made?”, and “What in the world is a family?”

That shows up in the debate in France. For example, as the Guardian of London pointed out, those who have been demanding this revision to French law have done so in the name of a diversity of families. France’s Health Minister who serves in the Macron government said, “It’s about reflecting France as it is today, and all French people in their great diversity. Same sex parents and single parents exist today. That’s a fact, and it will be hypocritical not to see them and not to recognize them in law.”

One member of the French Parliament said, “We need to accept the idea that you could have several different family models, a sort of multicultural family.” But that statement reflects something like what a Malcolm Muggeridge or a C. S. Lewis in the 20th century would have referred to as the great liberal dream, a dream of eclipsing biology, a dream of eclipsing marriage, of eclipsing family, and instead developing a new multicultural reality that celebrates diversity above all and then calling it a family.

A couple of things to think about here include the fact that France is an overwhelmingly secular nation in its political elites, but not entirely when it comes to the people of the nation, and that’s especially true in the French countryside. There is huge religious opposition to both same sex marriage, and to the extension of availability of these reproductive technologies.

There is enormous resistance to the idea of this diversity of families and this multicultural model of families that some of the French government are now contending for. Let me go back to the fact that in France right now, these technologies are only available if infertility has been demonstrated where fertility should be expected, but fertility can’t be expected with two women who are partnered together, and fertility can’t be expected even when you have a single woman. There is another agent, another party that will have to be involved.

That takes us to the truly stunning development in France, The National Academy of Medicine of France said over the weekend that, “The deliberate conception of a child deprived of a father constitutes a major anthropological break, which is not without risks for the psychological development, and the blossoming of the child.”

You heard that right. The National Academy of Medicine of France, yes, of France, used the language so clear as to say, “The deliberate conception of a child,” notice the next language, “deprived of a father.” That’s the big issue here. It’s not just a diversity of families as if that makes sense, it is the fact that the agent which you will be missing or who will be missing from this entire equation is the father.

The father is missing from a lesbian couple. The father is missing from a single woman who might obtain pregnancy by means of these technologies. And the French National Academy of Medicine looks to the child importantly, and says that a child deprived of a father constitutes, notice this language, “a major anthropological break.”

What does that mean? A major break with what it means to be human. That’s what anthropology is about, it’s the study of what it means to be human. In astoundingly clear moral language, The French National Academy of Medicine says that the development of what these politicians call for in France as this multicultural family celebrating a diversity of family forms, including those without a father, is a major anthropological break, which they also warned is not without risks for the psychological development and the blossoming of the child.

The Macron government just might get what it wants, because after all, it is in power in France, but at least there is the opportunity for the French people to have their voice and the prophetic voice of France’s National Academy of Medicine. These days, we have to be thankful for common sense, and the articulation of truth wherever and however it is found.