Wednesday, October 21, 2020

Part I

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A Threatening Judgment from the Left: If You Don’t Get with the Progressivist Revolution—Wait for It—You’re on the Wrong Side of History

Getting on the right side of history, that has become a meme, a trope, it’s become just an artifact of our conversation and moral argument, to the extent that it is so overused, it is surprising that it would show up as a headline now in 2020 in the New York Times. But it did just in recent days, indeed, it’s the entire headline, “Choosing The Right Side Of History.” And it’s by columnist Nicholas Kristof, of the New York Times. Now, Kristof is on the liberal side of the political spectrum. He’s been there for a long time, he’s extremely intelligent, he was a Rhodes scholar. He’s also someone who sees himself and those who are allied with him, on the right side of history.

And on many issues, undoubtedly, he is. He is when it comes to caring for the poor across the world, he is for caring about children and others who are in need. He is on the right side of history, because he’s on the right side of morality in his fight against human sex trafficking and other ills. But when it comes to so many of the other issues, you might say, even the more basic issues of knowing what is right and what is wrong, well at that point, Nicholas Kristof is basically just depending upon his own understanding of moral reality.

Thankfully, given what we as Christians understand as common grace, that means that many people actually end up on the right side, morally speaking, of issues, even as on other issues they end up on the wrong side. Our attempt is to try to think through all of these issues biblically, in order to be on the right side, consistently, to be in the right. But being on the right side of history, well, that’s a threatening judgment. Because it really means that what we’re concerned about is how future generations will remember us. Getting on the right side of history isn’t even tied to the real judgments that will be made by real people in the real future.

It’s being made right now by people who are warning, especially conservatives and Christians in the United States, that you’re on the wrong side of history, if you are going to stand for traditional understandings of gender and human sexuality. We’re being told that we’re not only on the wrong side of history, let’s note, we’re being told we’re on the wrong side of the present. So, surprised as on the one hand I am, that this outworn expression has found its way into a very contemporary headline in the New York Times, the article itself does tell us that the headline is exactly the argument. Kristof begins writing, “Amy Coney Barrett has been following recent precedent in her confirmation hearing before the Senate, pretending that she has never had an interesting thought in her life.”

He writes, and here he’s referring to judge Amy Coney Barrett’s confirmation hearings before the Supreme Court, “But for all the obfuscation, which nominees of Democratic presidents have engaged in as well, there is no hiding the essential truths that Barrett: A) is very bright; and B) would solidify a conservative Supreme Court majority whose judicial philosophy has been on the wrong side of many of the great issues of my lifetime.” Well, there we get the right side wrong side pretty clearly set up for us. The right side, according to Nicholas Kristof, is the side of the progressivist interpretation, the liberal vision of an evolving constitution, the wrong side is originalism, it is textual conservatism, it is limiting oneself to the actual words and texts of the constitution, and it is, don’t miss this, being on the wrong side on issues of tremendous liberal investment, including feminism and abortion, and the LGBTQ plus revolution.

The right side and the wrong side are fairly easy for us to understand. And Nicholas Kristof says regardless of her intelligence, the fact is that judge Amy Coney Barrett, if she does become the ninth justice of the United States Supreme Court, she will be on the wrong side of these issues that have been so important to him throughout his lifetime. What he calls, “The great issues of my lifetime.” He then goes on to say, “We sometimes distinguish between liberal judges and conservative judges, perhaps,” he says, “the divide instead is between forward-thinking judges, and backward-thinking judges.”

Now he’s onto something there. Maybe that is the divide, but maybe that’s the point that conservatives have been trying to make for the last 50 years or so. Judges are supposed to be, when it comes to the interpretation of text and statutes, backward looking. What else could they do? We’re talking about judges and justices being asked to judge on the constitutionality of issues, their legality going all the way back to the constitution that was ratified in the late 18th century, and then of course, the laws that have subsequently been adopted by Congress and signed into law.

We’re talking about the laws and the constitution of the United States. And remember, we’re the people who say we are a government of laws, not of men. But, and here we see a very honest distinction of worldview, a very honest disagreement. Nicholas Kristof says judges should be forward-thinking, and by that he means, or forward-looking, they need to be thinking about what kind of constitutional law, what kind of laws we need going to the future.

Now here’s the problem: it is Congress, it is the president who are assigned the responsibility in that sense, to be forward-looking. It is Congress that adopts legislation, it’s a president that signs legislation into law. Legislation is, by definition, forward-looking. Just think about it, laws don’t refer to the past, they refer to the future.

As a matter of fact, our constitutional order prohibits ex post facto laws. That is to say, Congress can’t act to render something you’ve already done as illegal, when it wasn’t illegal when you did it. That’s an important part of constitutional law. And by the way, that means it is the law that looks forward. But the judges are to look backward to the law, and the constitution. But you understand, we’re talking here about very clear difference of opinion. Nicholas Kristof is saying, the progressive side is interested in what will be the result of a judicial decision, or a Supreme court decision, not whether or not the judges are actually ruling correctly according to the constitution and the law. Two different visions of the court, two different understandings of a judge’s role, two different, radically different ways of understanding how judges are to rule and decide.

Later in the article, Kristof actually refers to Antonin Scalia that would be judge Barrett’s mentor as being backward thinking. He refers to three backward thinking justices, who were opposed to issues such as same sex marriage. He goes on to say that conservatives are also, using his words, on the wrong side of history when it comes to healthcare issues. I’m not even going to debate that issue, I’m just going to point to the fact that he makes the distinction between what he calls backward-thinking justices and forward-thinking justices.

He then ends his column with a shout out to voters, saying this, “At the polls, which side of history will you stand on?” Very interesting question. Once again, we see the threat, and it’s not coming from the right, it’s coming from the left. If you don’t get what the progressivist revolution, you’re on the wrong side of history. You’re backward-thinking, not forward-thinking.

Part II

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What Is the Common Good and Who Gets to Decide What That Is? Understanding the Argument

Next we need to look at a similar argument, and this one comes from The Guardian, the liberal newspaper in London, but the author is Robert Reich, former United States Secretary of Labor, during the administration of President Bill Clinton. Reich is himself an economist, he’s a very interesting figure. It is he who largely gave attention to the emergence of a knowledge economy, and what he called symbolic analysts. That is, people whose jobs will not be moving stuff or making stuff, but rather working with symbols or ideas, symbolic analysts. But it’s also true that he was on the left wing of the Clinton administration, and he’s on the left wing now, and he’s making that point in a left wing newspaper, so no surprise there.

But the article’s headline is this, “Trump and Barrett’s threat to abortion and LGBTQ rights is simply un-American.” Well, that’s an interesting argument. What does un-American mean? Reich is arguing that much of the controversy over judge Barrett’s nomination to the Supreme Court has to do with frontline controversies over cultural and moral issues, such as abortion and same-sex marriage. But of course, there are other issues as well, and much as Nicholas Kristof lamented the fact that Judge Barrett would be backward thinking rather than forward thinking in Kristof’s phrase. You also have the condemnation now coming from Robert Reich, who is saying that what you have when you come to Judge Barrett, is a denial of the underlying issue of the common good.

He says, “The underlying issue is the common good. What we owe one another as members of the same society.” Now, wait just a minute. Is this where we are as conservatives? Are we denying the common good, what we owe one another as members of the same society? No, of course we’re not. We are arguing that there’s a more fundamental issue. That what we owe one another, is exactly the dignity and respect accorded to every single citizen, by the fact that we are a government of laws, not of men, that we are a constitutional order. We honor the constitution, because we believe that’s the way, politically speaking, that we can best honor the common good.

What Robert Reich is arguing for here are judges who put themselves in the position of deciding individually, what the common good is, and regardless of what the constitution says, and regardless of what the laws say, deciding that they are going to determine what is the common good, and how they should rule in order to serve their own vision of the common good. But notice something else. What you have here is a sign that many on the left have come to the conclusion that their understanding is the common good. If you oppose their arguments and you oppose their positions, if you oppose their ideal of absolute personal autonomy, if you oppose the idea that someone born biologically male can be female, if you oppose any of their agenda, in the large print or the small print, then you are not only on the wrong side of history, you are against the common good.

I think it’s really important that at any given time, we understand how the world around us, sees us. It’s not just about how we see the world, it’s about how the world sees us and how we see the world in a more informed way, when we know how many in the world do see us. It’s a very important frame of reference question.

Part III

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Intellectual Honesty Lost—Do the Words of a Text Actually Endure?

But there’s more to it than this too. And going back to originalism, I was particularly intrigued by some letters to the editor that appeared just recently, in fact, many of these in Monday’s edition of the New York Times, in response to the conversation that came about during the hearings of Amy Coney Barrett, as Justice of the Supreme Court.

So for instance, you had one man, his name is Eliot Brenowitz of Seattle. He wrote, “As final arbiters of how the constitution applies to modern life, Supreme Court justices must have the intellectual flexibility to adopt the Jeffersonian view of it as a continually evolving document. A narrow minded adherence to its 18th century text,” writes Mr. Brenowitz, “should be disqualifying in itself for Judge Barrett, or for any 21st century nominee, regardless of their views on other issues.” And he goes back, remember he mentioned Thomas Jefferson, listen to an earlier section of his letter. “Originalists present themselves as conservatives, but in truth, they are radical reactionaries. The founders understood,” he writes, “that no document they wrote could anticipate all changes in the future, and provided the amendment process to update the constitution as needed. Thomas Jefferson wrote in 1816, ‘Let us provide in our constitution for its revision at stated periods.”

Was Thomas Jefferson right? Well, in that sense, he was. The constitution includes in itself, the mechanism for its amendment. Then what’s the problem? What you have here, is Mr. Brenowitz arguing not that the constitution should be amended, that actually the point that he appeared to be making, that was Thomas Jefferson’s point, but rather the judges should amend it on their own. Now that is intellectual slight of hand, it’s actually intellectual dishonesty, and rare is it to find such a classic example in the economy of a very short letter to the editor.

What you have here is the statement that yes, Thomas Jefferson and others believed that the constitution should include within itself the mechanism for its amendment. But what follows is not what would be the intellectually honest argument, I’d oppose it, but it would be intellectually honest to say, “What we need is a new amendment to the constitution, enshrining a right to abortion.” No, that would be honest. But instead he says that judges who do not believe that on their own they should amend the constitution, they should be disqualified from sitting on the nation’s highest court.

Another man, this one Roliff Purrington, identified as a lawyer in Houston, says, “The constitution, laws and regulations are composed of words. Words are of elastic definition. Judges will always interpret words, and unavoidably be influenced by their personal thoughts and feelings in doing so.” Well, yes. Words are not absolutely determinative, you can argue over the definition of a word, but guess what? Words are not endlessly elastic, otherwise we don’t know what anything means. I confronted this decades ago, when it came to post-modern academics, who said, “I have the right to interpret the statement of faith, according to however I want to interpret it, because the words aren’t determinant, they can mean whatever I say they mean.” But there was an incongruity there, because when it came to their employment contract, they had a very different understanding of how words work.

If words are so elastic as lawyer Purrington says, how does he expect anyone actually to know anything about what he means to say, in using words to write a letter to the editor at the New York Times? Once again, I don’t think he actually means what he writes. He’s just expressing dissatisfaction, that someone else intends to be held by the words of the constitution.

Another letter in Monday’s print edition of the New York Times, this one by Ardesheer Talati, also of New York, writes this: “Imagine going to your doctor and being told you can’t have this antibiotic or that treatment, because it wasn’t mentioned in the medical texts in 1787. Yet,” He says, “That is essentially what people are saying when they insist that any new candidate for the Supreme Court must be an originalist.” He then continues, “In which other profession do we rely on texts written centuries ago, regardless of how groundbreaking or well-intentioned they were at the time, as the definitive source? Terms like originalists,” he says, “are often code for ‘the way things were.’ But I for one, certainly would not want to go back to 1787.”

What an interesting letter to the editor. Which one of us, who among us would want to go to a doctor operating out of a medical text of 1787? Limited in its knowledge of even how the body works, and completely ignorant of modern antibiotics, modern surgery, modern anesthesia. Yes, I do not want the medicine, I certainly don’t want the dentistry of 1787. But that’s an absolutely illegitimate argument. A judge’s role when it comes to the constitution, is not the same thing as a physician’s role when it comes to diagnosing medical issues, and treating medical problems, these are entirely different intellectual activities. The responsibility assigned to the doctor is to treat the patient, and to hope for the patient’s healing and to work towards that. The responsibility given to judges is to rule according to the law.

But there’s another problem here. We don’t legislate, and we don’t judicially review medical textbooks, but we do, the law. Because that’s what the law is, and that’s how the law works. And furthermore, it is intellectually dishonest to say that we are saddled with a constitution from the late 18th century. We aren’t saddled with it, it was ratified and it has been continually honored. It has been also amended numerous times. We’re talking about a document to which we are not bound by some kind of autocratic force, we’re talking about the document that establishes the order and the rules by which our experiment in liberty depends.

But I hope you were listening carefully to one very important part of Mr. Taladi’s letter. And it has to do with a question that he raises, and it turns out that for us, without respect to either medicine or law, this turns out to be a matter of utmost importance. Listen to what he wrote, “In what other profession do we rely on texts written centuries ago, regardless of how groundbreaking or well-intentioned they were at the time, as the definitive source?” Let’s just shorten the sentence, in what other profession do we rely on texts written centuries ago? Well, let’s just think about that. I can think of one immediately, it would be called the Christian ministry. It would be called the preaching of the word of God. It would be called Christian theology.

Now, there’s just a lot for us to ponder here, but at least on the one hand, it seems that Mr. Taladi writing this article, can’t imagine that there actually would be a profession, a calling, there would be a group of people assigned a task in the 21st century, that actually would require reliance on texts written centuries ago. But of course the Christian ministry, the Christian preacher, the Christian theologian, the faithful Christian with the word of God in hand, is not saddled with the scripture, but rather is honored by God, in the grace and mercy of God, and that he has spoken to us, and has given to us his word.

Oh, and this is not a new issue. It’s not like it is just modern people who are concerned with whether or not words endure. When it comes to the Bible’s testimony about God’s word, in the Old Testament, we have repeated references to the fact that God’s word is settled in the Psalms. We have repeated references to the fact that the word of God will never pass away. Indeed, we have the classic Old Testament reminder that the flower fades, the grass withers, but the word of God will endure forever, which is also repeated in the New Testament, and in the very context in which Jesus Christ himself is saying that not one jot or tittle of the scripture, of the law and prophets will pass away, until all has been fulfilled. The word of God endures forever.

But at this point, I hope we’ll think devotionally about this for a moment, in terms of our love of God for giving us his word, our love for the word of God, because it is God’s word, the holy scriptures, the Bible. I hope that devotionally, this will help us to understand why the preaching of the word of God is the central act of Christian worship, and why our growth and faithfulness and discipleship is dependent upon the ministry of the word to us. Not only in preaching, but our own reading of the scripture and why we are dependent upon the holy spirit for opening our eyes to see, our ears to hear the word of God, and to do that work of sanctification within us, by the power of the word. I hope that this helps to remind us of the centrality of the role of the preacher in the local church, or the teacher of the word of God. And I hope it reminds us of what we expect when the preacher gets up to preach, and the teacher begins to teach.

What we expect is that he is going to do exactly what this writer to the New York Times in the year 2020 thinks is unthinkable, and that is going back to a text written long, long centuries ago, and saying in this text, we find the truth. But when we’re talking about the US constitution, let’s be clear. We’re not talking about an enduring, infallible, verbally inspired document. Not at all, no sane person would make those claims, and that includes those who framed, and established, and ratified the constitution. They saw it as a human effort to try to achieve human, common good, by ordered liberty and constitutional means.

And they didn’t believe that the constitution was going to stand forever exactly as it was in 1789, they offered the mechanism for it to be amended. But they never said to judges, “Why don’t you decide what you think this should say, and what you think this should mean centuries ahead?” But that wouldn’t be constitutionalism in the service of the common good, that would be the undermining of constitutionalism, and instead would leave only judges to tell us what is right, and what is true, and what is lawful.

Part IV

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Who Was the Biggest Loser in the Amy Coney Barrett’s Confirmation Hearings? Probably Sen. Diane Feinstein, the Ranking Democratic Member of the Judiciary Committee

But finally, today for The Briefing, let’s ask the question, who was the big loser in the Amy Coney Barrett confirmation hearings before the Senate judiciary committee? When it comes to the left, they’re going to argue that the big loser is going to be the American people, because they don’t like the idea of an Amy Coney Barrett on the Supreme Court. But also when it comes to the left, when you think about the biggest political loser, it is likely to be the ranking Democrat on the Senate judiciary committee, California Senator Dianne Feinstein. Because the left was extremely disappointed in the lead Democrat’s role in the confirmation hearings, and their fury is now tangible and visible.

The Washington Post offered a headline article, Abortion Rights Group Calls For Ouster of Senator Feinstein From Top Democratic Post On Judiciary Committee. The article’s by Seung Min Kim there at The Washington Post, and he tells us that the head of NARAL Pro-Choice America has now fueled a liberal backlash against Senator Feinstein, “Who during the Trump presidency has been a target of critics, who say she has been far too passive in battling the administration, especially when it comes to its judicial nominees.”

The Washington post offered a headline article just days ago. The headline, “Abortion Rights Group Calls For Ouster of Senator Feinstein From Top Democratic Post On Judiciary Committee.” And in this case, Seung Min Kim of The Washington Post tells us that, for example, the head of NARAL Pro-Choice America is now calling for Feinstein’s removal, and fueling a liberal backlash. Now there’s a political background to this. When you’re looking at Senator Dianne Feinstein, by the way, she has had a 100% ranking by abortion rights group. We’re not talking about anyone who could by any extent, be considered pro-life or conservative.

Furthermore, at age 87, she is now the oldest member of the Senate. And it’s interesting that many on the left are now saying she is past her date, she needs to be out of the Senate, she certainly needs to be well out of the way if Democrats should gain the majority in the Senate. Because right now, if the Democrats did regain the majority, Senator Dianne Feinstein would not only be the ranking member of the judiciary committee, she would be the chairwoman of the judiciary committee.

At the conclusion of the Barrett hearings just a few days ago, Senator Feinstein, as the ranking member, thanked the chairman of the committee, South Carolina Republican Senator Lindsey Graham, for how he had led the proceedings. Now, of course, everyone knew going in, as Senator Lindsey Graham had said, exactly what’s going to happen. He said it’s not really about persuasion, he said all the Democrats are going to vote against Judge Barrett, all the Republicans are going to vote for Judge Barrett, but nonetheless, it’s not just a formality. The hearings were important.

At the conclusion, in a comment that was picked up by a microphone, not intended for the public, Senator Feinstein said to Chairman Graham, “This has been one of the best Senate hearings I have participated in. Thank you for your fairness, and opportunity of going back and forth. It leaves one with a lot of hopes.” Well, Senator Feinstein, the Democratic party is not about wanting a lot of hopes when it comes to decorum in the United States Senate, it wanted a scalp. And the Democrats on the judiciary committee did not produce a scalp, when it comes to Judge Barrett’s nomination to the court.

By the end of last week, there were numerous people inside the Democratic party, not just in a group like NARAL Pro-Choice America, calling for Feinstein’s ouster, or at least the party to find some way to change its leadership process, so that someone else on the Democratic side could become chairman of the committee, or even if they don’t regain control of the Senate could be the ranking member, rather than Senator Feinstein.

But the Democratic party’s got problems there. These issues are essentially set by seniority, and if Senator Feinstein is not the top Democrat on the judiciary committee, there would be two other rather senior Democrats who would be good possibilities. One of them is Senator Patrick J. Leahy, Democrat of Vermont. But the issue is this, you can’t be the chairman of two Senate committees at one time, and he’s currently the ranking member of the Senate Appropriations Committee, and that’s about money. No Senator is likely to give up the committee that deals with money, in order to trade it for the committee that deals with judges. Money wins.

And when it comes to another senior Democrat, that could be Senator Richard J. Durbin of Illinois. He is technically next in line after Feinstein, but he is also serving as the whip of the democratic caucus in the Senate. He is an officer among Democrats, and it is unlikely that he could hold that post in the Senate leadership, and continue as the chairman of a committee. So, where will the Democrats turn? Well, that eventually will be for them to decide, after the voters decide if the Democrats are in the majority or the minority position. That’s another reminder that that really will matter.

One final thought before I close. When you think about this controversy about Senator Feinstein, given her comments to Senator Graham, it is a very bad sign for our republic that a simple statement of mutual respect, amongst two senators who have served together for decades, is now understood not as a basic matter of human dignity and respect, but rather as political and moral treason. The Senate can’t operate that way, but then think about it, neither can your neighborhood.