Dec 2, 2017

Oliver Wendell Holmes and Natural Law

Every year when December rolls around it is time to teach the Lochner decision in my Constitutional Law class. This is inevitably the last major case I teach before the Christmas break, and it probably the case I enjoy teaching the most. The facts as presented are wonderful, and the fact that the sound reasoning of the Supreme Court is so passionately attacked today makes it great for classroom discussion.

Every year a different aspect of the case stands out, largely depending on what I happen to be reading in the months before I teach. This time, I am struck by how very difficult it is to sustain Oliver Wendell Holmes’ theory supporting his dissent. It seems to come across as a view that every statute should be upheld, unless Holmes’ whim suggests otherwise.

Holmes’ pragmatism suggests that law should remain steady out of deference to the tradition that has developed through the centuries, yet change to adapt to new insights. This is a theory that can justify any result. If the judge’s desired result is the same as what judges have long held, that is because the common law has disclosed long-held fundamental principles. But if the judge’s whims are contrary to the historic view, the judge just needs to acknowledge the evolution of the common law since experience, not logic is the means of developing the law.

The highly individualized approach taken by Holmes violates the primary value of his legal positivism—it renders the work of judges unpredictable. For example, in Schenk v. US, Holmes spoke for a unanimous Court in holding that the Espionage Act was properly applied in upholding the conviction of an anti-war agitator.  Several months later, Holmes was the lone dissenter in Abrams v. US, which was also addressed whether an anti-war agitator’s conviction under the Espionage Act was Constitutional. Holmes’ dissented, being the only justice not to apply the analysis that persuaded the rest of the court that the cases were materially indistinguishable. So much for predictability in the law.

The only distinction between Schenk and Abrams that justifies a different result is the effectiveness of the message due to its temporal proximity to harm. (Schenk is the shouting-fire-in-a-crowded-theater case.) While I think Holmes’ reasoning was sound, it was not predictable that he would develop that particular distinction as the critical factor in deciding the case.  Ultimately, it was because Holmes alone determined that this distinction mattered at this time that he was the only one who flipped in less than six months. That is no more than a convoluted way to justify one’s own whim.

The problem for Holmes is that he believes so passionately in the natural law, and yet denies that he does so. Like so many embittered against Christianity, in part because of the horrors he experienced in the Civil War, he had an aversion to committed moralists, all while being a highly committed moralist himself.

Holmes’ dissent in Lochner demonstrates Holmes’ moral commitment:

I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us.

This is a natural law critique of the majority opinion. While the “traditions of our people” approach may sound like it diminished the moral foundation of his opinion, there is no reason to defer to those who have gone before unless there is a transcendent value in those traditions.  That value is either based on a moral framework, or the whims of a judge. Thus, a protestor can protest in defiance of a prohibitory statute, but a baker can’t work more than ten hours—no matter how desirous—in defiance of another statute.

This may work most of the time.  The moral law and the Holmes’ whim probably line up more often than not, given the intelligence, experience and decency of Holmes. But when it falls apart, it does so grandly. Thus, in Buck v. Bell, one of the reasons why the Holmes is persuaded that sterilizing a mentally ill patient who has committed no crime is a good thing for the state to do, is that it will help free up space for more mental patients. Here is where moralizing helps.

What stood out to me more than anything with this year’s review of Lochner is how much Holmes is guilty of the formalism of which he complained in “The Common Law.” Holmes is obtuse in his refusal to think of the law which prohibits a willing employee to work more than ten hours is based on anything other than a health issue, just because the authors of the statute said so. Holmes justifies the law on the grounds that “A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work.” That is, if one can find a justification that aligns with the stated purpose, that is sufficient in this instance. Even more, if it opens the door for regulation of hours, all the better. This is worse than formalism. It is formalism with an agenda. While Holmes mocks the social Darwinism of the majority, he subtly discloses that his views on labor policy are just as agenda-driven.

The truth behind the Lochner facts were that powerful union forces sought to force out of business ethnic minorities who refused to unionize. It was economic bullying through calling in the power of the majority. Health had nothing to do with it, and the protection of laborers was not the motive for Holmes’ defense of an economic policy that abandoned protection of the disenfranchised. By ignoring this highly visible dynamic behind the manipulation of the politically weak, Holmes was a formalist of the highest order.

As a plumb line for guiding judges, natural law does have its limitations. The primary limitation is that it does not always mandate concrete answers to the narrow issues that come before the court.  However, where acknowledgment of natural law is lacking, judges get seduced away by the desire to treat every case as if it were a matter of personal values. This leads to horrors such as Buck v. Bell where the specifics of the case—a desire to end a family’s multi-generational mental health problems—blinded the Court to the overarching natural law value of protecting human life.  Because natural law is deeply imbedded in our consciousness, it will surface in everyone’s thoughts, given the right amount of detachment from personal biases. Thus, while the outcome of Buck v. Bell in the moment seemed compelling to eight justices at the time it was decided, within a decade it was universally recognized as a wrong, and in fact morally bankrupt, decision.  We can hope that with the passage of time, Lochner might be viewed the same way. 

Oct 9, 2017

Opening at Concordia University School of Law

Concordia University School of Law, located in Boise, Idaho, invites applications for a Director of Academic Success position beginning in the 2017-18 academic year. This is a full-time position that may be a contract faculty or staff position, depending upon the qualifications of the candidate.  Under the direction of the Associate Dean for Academics, the Director of the Academic Success Program will have lead responsibility for maximizing student learning and performance in law school courses and on the bar exam by instructing students on learning techniques, identifying external resources for student academic success, collaborating with faculty on instruction, and assessing the success of educational programs.  In addition, this position will have responsibility for teaching courses targeted at students who would benefit from support in legal analysis; supporting students seeking assistance in learning; and for developing and implementing a strategy for bar exam passage.  The Director is also responsible for administering the Admission by Performance Program, the law school’s conditional admission program for prospective 1L students.  The position requires interaction with prospective students, students, staff, faculty, and administrators on a daily basis. Our goal is to recruit a dynamic, bright, and highly motivated individual who is interested in making significant contributions to our law school and its students.  Experience in academic support and bar exam support is preferred, and teaching experience is desirable.  As a Lutheran institution of higher education, we seek candidates who will support our mission and promote Lutheran values.   

Special Instructions to Applicants: Questions about the position can be directed to the Chair of the Committee.  Applicants should submit a current Curriculum Vitae, a statement of faith, and a letter of interest to

Please also provide the names and email addresses of three individuals prepared to speak to your professional qualifications for this position. Please note: these references will not be contacted immediately, but may be contacted at an appropriate later point in the review process. Additional materials related to teaching excellence and samples of scholarly publications may be emailed to the Victoria Haneman, Chair of the Committee, at  Review of applications will begin immediately and continued until the position is filled. Concordia University reserves the right to give preference in employment based upon religion in order to further the Lutheran objectives of the University and the Lutheran Church-Missouri Synod.

Jul 24, 2017

Christianity Today Betrays its Heritage in Addressing Public Policy

For the past several years, Christianity Today has advanced the idea of “Beautiful Orthodoxy” in its pages. The magazine’s role in advancing a Beautiful Orthodoxy is described as one that “strengthens the church by richly communicating the breadth of the true, the good and the beautiful gospel.” In practice, as described on CT’s website, this involves avoiding truth-telling that is shrill, and falsehood that is winsome.   To some extent, this message is not far removed from the values presented in the very first issue of Christianity Today in October 1956, where editor-in-chief Carl F.H. Henry described the good and the true as “durables” which were the underpinnings of political freedom.

As applied in 2017, however, Christianity Today has drifted towards defining the beautiful as that which conforms to a center left political perspective, and those who disagree are the worst sort of ugly--they are racists. This is best illustrated by the editorial “Loving All Types of Sojourners” in the June 2017 issue of Christianity Today, by Mark Galli. Galli is the editor-in-chief of CT, as was Carl Henry in 1956. The approaches to a winsome orthodoxy by both are remarkably different from each other.  How the world has changed in 61 years. In 1956, it would have been inconceivable to think that someday Evangelicals would be described as racist for disagreeing with the editorial position of CT’s editor.

Galli’s editorial argues at its core that church-going Evangelicals, “steeped in the Bible” should find President Trump’s refugee policy “repulsive.” Typical of the rhetoric of his argument, are comments like “You would think these people [non-church-attending Evangelicals] would try to make at least some allowances for illegal immigrants” and “Who is teaching them these unmerciful attitudes?” Of course, lest Galli be hoisted on his own petard by looking a little too unmerciful himself, he back peddles slightly.  “We cannot lump all unchurched Evangelicals into the same basket, as they tend to do when they think about Muslims and Mexicans.” In short, by generously excusing a few of them, Galli does not stoop to the level of the poor non-CT-reading Evangelicals who voted for Trump because they are stewing in hatred for Muslims and Mexicans. A Beautiful Orthodoxy indeed.

Galli points out that “social and political scientists in survey after survey have tried to unravel the mystery of the 80 percent of white Evangelicals who voted for him.” Let the scientists stop their surveys. We can clear this up with two simple explanations:

1. Given two less than ideal candidates for president, those Evangelicals who voted for Trump did so because they believed he might be closer to their views than any alternate candidate.  That is an approach to voting embraced by many voters, left or right, throughout American history. Galli may despair of Evangelicals who rely solely on the abortion issue in voting for president, but does that really make them what Galli describes as “racists and xenophobes” who have confounded our best social and political scientists?

2. The fact that the cause Galli supports involves admittedly “illegal” activity may mean more to some Evangelicals than it does to Galli. These individuals may align their prioritization between lawfulness and concern for immigrants differently. It is possible that balancing the difficult conflict between these two values, compassion and law-keeping, may be ordered differently by sensible people for sound reasons The advocates of law-keeping do not need Galli’s pity and condescension..

The latter issue is the one that is likely of most interest to readers of this blog. What shows how far Christianity Today has come from its early days is the simplistic argument that if you do not show compassion by a willingness to breaking a law, then you must be racist.

Balancing the values of law-keeping as taught in Romans 13:1-6 against violating immigration law can be a big challenge. I say it can be because these values need not necessarily be found in conflict. Immigration law can be changed. Critics from across the political spectrum find current immigration law to be out of date and inadequate. Elected officials gain little personally by addressing the issue, so we remain constrained by laws designed to address the immigration issues of the mid-twentieth century. Of course, it does not take many dedicated voters to make an issue a high priority for Congress. To the extent that Galli were to harness the forces of Evangelicalism behind this cause, it could make a difference. The power would be even greater if Galli mobilized all kinds of Evangelicals he describes—the churchgoers, the racists and the xenophobes.

The biggest question not answered by Galli is how to determine when illegal activity should be actively engaged in by the church. As it happens, a great deal has been written on this topic over the centuries. These sources could have been cited. In fact, Carl Henry alone has written enough on this topic to fill pages of the current issue of Christianity Today. Were this issue to have been addressed in CT a la 1956, the theology of civil disobedience would have been the foundation of the article. In fact, at the time of Christianity Today’s first issue, Evangelicalism was working through a political issue that was just as complex as those faced today—how to address Communism without adopting an excessively nationalistic fusing of patriotism with faith.

There is a reason why advocates of open borders tend not to build their case on a theology of civil disobedience. There is too great a risk that once the principles of morally permissible civil disobedience have been established, one of two undesired results will likely happen. Either a conclusion will be drawn that complicity in aiding unlawful entry into the United States does not rise to the level of legitimate and morally defensible law-breaking, or it will set the bar so low that greater law-breaking will be justified than conscience will permit. If the immigrant can flout the law because our nation is profoundly more prosperous than its neighbors, then must the Christian concede the moral goodness of breaking and entering into the property of the rich to satisfy the needs of the poor?

It turns out to be very difficult to move from generalities to specifics when discussing the theology of public policy.  Personal experience and individualism become a larger part of the discussion the more specific the application of public policy concepts to real problems becomes. The godly landlord is going to have a different idea of the most just system of landlord/tenant law than the godly tenant will. Wisdom comes from distinguishing the point at which we should press our argument further, from the point where we should desist from claiming a universal principle and allow for individual difference within the bounds of goodness.

Presumably, all Evangelicals would agree that there is a point at which civil disobedience is appropriate or even mandated. Wisdom suggests that finding that point is a difficult challenge. However, as a church, we are stronger if we engage in further discussion in the hope of seeking understanding in this challenging area rather than opportunities for name-calling.  Certainly, Galli’s editorial accomplishes little but allowing him to self-identify as “we who do not succumb to the sin of racism.”

The Trump presidency is proving to be divisive for Evangelicalism. But this is nothing new. There has been probably no greater time of difficulty for public Evangelicalism than in the middle 1970’s after Richard Nixon had been embraced by Evangelicals who perceived Nixon as one of their own. Nixon was a law and order president, and seemed so much aligned with Evangelical values that his downfall was viewed as a personal betrayal. If there was one lesson learned from this, it was that the actions of leaders must be critiqued as acts, not as tools for characterizing the leaders. The need for this was eloquently stated by Senator Mark O. Hatfield in the pages of Christianity Today in June 1973 as President Nixon’s reputation was beginning to slide. Hatfield himself would later illustrate the insights of his article in his own career. His commitment as an Evangelical Christian was never in doubt. However, over his long career he himself was subject to ethics investigations best understood by reading his 1973 article in Christianity Today.

Mark Galli’s editorial is a significant event, primarily because it is written with an imperial tone by the editor-in-chief of Christianity Today. The magazine stood for a very long time as the leading voice of Evangelical messages that thoughtfully applied careful biblical analysis of contemporary issue, accessible to pastors and thoughtful laity.

The article in the same issue as Galli’s editorial on the age of innocence is a rare reminder of what Christianity Today once offered: a thoughtful, well-founded discussion of various viewpoints on a topic on which there is reasonable dissension.

But the change in Christianity Today generally is a watershed event. CT was founded in part to raise the intellectual voice of a movement that had been dismissed as being “pre-critical,” to quote a description from its first issue. The Galli editorial illustrates a decline into a post-analytical tirade that mirrors the lack of thoughtfulness CT was founded to cure.

There are no voices left quite like what Christianity Today has abandoned. There remain academic journals at the seminaries, and Evangelical denominations still provide vehicles for reflective thought. However, the leading journals that speak to pastors and laity are more broadly ecumenical. They may accept the views of Evangelicals, but they are not edited by them.  Those publications are excellent, but the lack of a widely disseminated Evangelical voice on these matters is a huge loss. It would be difficult to imagine, for example, First Things publishing an article like the age of innocence article that CT just published.

The Beautiful Orthodoxy ideal is a noble one. But it is not an easy one. Truth may be comparatively easy to identify, although claiming one’s opinion as truth is itself an untruth. Goodness and beauty are not always visceral and impulsive. For example, history suggests that freedom of speech is good. However, inherent in defending free speech is the act of defending at times that which is bad, false and ugly. How can that be good? Experience has suggested that we gain insight into the good, the true and the beautiful by seeking to have a very light hand of regulation on its opposite.

Mark Galli may have identified an issue that should be a priority for the “people steeped in the Bible” to address seriously. But certainly, the aspect of this that should be made a central focus is how to align immigration law with Christian compassion. The lowest priority should be reducing the views of those with whom we disagree to nasty caricature and name-calling.

Nov 21, 2016

The Equity of the Mosaic Law of Slavery and the People's Rights Against Tyranny

Ex 21:26 "If a man hits a manservant or maidservant in the eye and destroys it, he must let the servant go free to compensate for the eye. 27 And if he knocks out the tooth of a manservant or maidservant, he must let the servant go free to compensate for the tooth.
Reformed thinkers have always looked to God's law to learn general equity, principles of right that apply always and everywhere. As Paul showed, the general equity of a law is not limited only to the immediate subject of a precept of the Law. Thus, he shows in 1 Cor 9:9-10 that a law providing for the care of oxen may also teach us today a general equity for people, particularly their right to enjoy a share of the produce of their labor: 
For it is written in the Law of Moses: 'Do not muzzle an ox while it is treading out the grain.' Is it about oxen that God is concerned?" Surely he says this for us, doesn't he? Yes, this was written for us, because when the plowman plows and the thresher threshes, they ought to do so in the hope of sharing in the harvest. 11 If we have sown spiritual seed among you, is it too much if we reap a material harvest from you?
Though I understand that the immediate subject of a Mosaic precept and the ultimate reach of its equity might be far apart, I had never considered how the equity of the Mosaic law of slavery might be applied in other areas. 

Samuel Rutherford, however, in his Lex Rex, Q. 4, offers an interesting perspective on the general equity of the Mosaic laws regulating the treatment of slaves in the context of the limitations on government and the obligation of lesser magistrates to vindicate the people from the tyranny of their superiors. Alongside considerations of the duties of children to parents and freedmen to their patrons, he asks whether the obligations of subjects to their rulers could be greater than that of servants to their master? 

In the light of precepts like those set forth in Exodus 21:26-27, he argues that if even a bond servant has the right to freedom after receiving a substantial injury from his master, then a people -- even if we were to think of them as the slaves of their rulers -- should also be relieved of their obligations to their rulers if they are substantially injured by tyranny. Of course, he argues the relative status of a subject in relation to a ruler is higher than that of a slave to a master. Therefore, he concludes that the servant's right to freedom after substantial injury belongs more strongly to a free people injured by its rulers.

Rutherford finds the same equity exemplified in Roman law:
... there was a proviso in Roman law that a slave whom his master did not tend in illness should be regarded as free. And what is even more important, a slave is by a provision of the written law free to accuse his master of high treason. But who is more liable to this accusation than the tyrant who openly subverts all rights divine as well as human? But, you will rejoin, before whom shall he be accused? I answer, either before those who since they possessed the authority to elect him, also possess the authority to judge him, or before those who are the chief defenders of the supreme power and from whom there is no appeal.
Similarly, although under Roman law, freedmen owe every respect to their patrons, so much so that in ordinary law they can institute only civil actions against them, yet for special reasons, that is if they have suffered some terrible injustice at the hands of their patron or have caught him in adultery with their wives, they can in virtue of the civil law lay a capital charge against him.
My purpose with these arguments is not to tighten the conscience (of men) by means of the civil laws or the pronouncements of philosophers as if by most reliable rules, but only to show as clearly as may be how unjust is the opinion of those who would leave men no means at all by which they may avail to break the onset of imminent or openly aggressive tyranny, however cruel and unjust the matter might be.
 Rutherford's argument suggests a broader rule. Principles of justice concerning those of the lowest status set forth general lower limits on the rights of all. The formal end of slavery does not mean that the precepts of the Mosaic law do not continue to illuminate universal rights. Rather, God uses discussions in the Mosaic law of examples pertaining to those with the least legal status, e.g., oxen and slaves, to underscore the minimum rights pertaining to all.