Saturday, October 08, 2005

"From the Mailbag" Dept.
(On the Harriet Miers Nomination)

The following email was received this morning from a friend responding to my postings on the Miers nomination -particularly the one from yesterday. His words will be in orange font.

Hi Shawn,

I wonder if Bush is a little more clever than meets the eye. Could this be a rope a dope sales job? I mean could the conservatives be faking that they do not like Bush appointee so as to make the democrats feel like she is not conservative enough? I know I might be stretching it here, but I just wonder.... Your thoughts about my thought on this?

I think this is another example of Bush taking for granted the base who elected him. A lot of people put up with a lot of crap from him because of a few issues: the economy, the war, and the Supreme Court nominations. The first is doing just fine. The second is a mixed bag at the moment but the base could deal with that if the third issue was a place where Bush showed he would deliver. Instead, he serves up an unknown and says "trust me." Even if she is a conservative and everything Bush says she is, the problem with her is that this nomination will not bring the debate on the role and limits of the Supreme Court into the public arena where it belongs.{1}

Remember the debacle over Bork where Kennedy was the replacement candidate??? The conservative movement of those who favour constructionists on the court (rather than whores or termites) lost a key seat there when the constructionist Bork received a screwjob by The Evil Party and his replacement Kennedy proved to be a court whore. For those who find my usage of terms to be either shocking or offensive, too bad because what is needed here is to paint with unmistakable colours what we are dealing with amongst the court justices and judicial philosophy. To quote something I wrote in June of 2003 the day after the Michigan court decision asserting a "constitutional right" to affirmative action:

As far as I am personally concerned, there are three justices on the court who understand the Constitution. The other six are roughly divided in half with three who think the Constitution is a plaything for reshaping as they see fit, and three who are politicians. To clarify further, consider the following statement from President Reagan.

Our former president...noted once "politics is supposed to be the second oldest profession. I have come to realize that it bears a very close resemblance to the first." Hence the division of the court between those who preserve the Constitution, those who undermine the Constitution (the "court termites"), and those who sell out to whichever constituency has the most for them (the "court whores.") [Excerpt from Rerum Novarum (circa June 24, 2003)]

We had a court whore resign and a court constructionist die. Bush replaced the constructionist with what from all appearances is a solid originalist thus holding serve on the court. The replacement for O'Conner is a chance to secure the Kennedy seat which was denied to Bork in 1987. In other words, there is a chance to secure the court from the activist elements and move one step closer to a constructionist majority which is what we need.

--I do not care whether or not Miers is pro-life.

--I do not care whether or not she is a religious evangelical.

I am not dismissing entirely those positions themselves, only the mentality that accompanies many promoters of them when dealing with the complex vicissitudes involved in situations such as this. Basically, when we make this a debate over issues instead of judicial philosophies we are in heap big trouble. But making these things single issue has been to the detriment of achieving a constructionist (or originalist as some call it) core of justices devoted not to inventing law but interpreting law.

I have noted it before on many occasions{2} and I reiterate it anew here: boneheaded approaches to key cultural issues have been the bane of many well-meaning but politically myopic people. And that applies even more so to key moments in time such as the one upon us now. If religious and prolife people piss away this opportunity, we will have to go through another decade or so of activist crap and I am sick of it. Ginsburg (a court termite) is rumoured to be next to step down and Stevens (court termite) is 86 years old...we know he will not be on the court much longer. If Bush goes with an unknown this time, who will be his next appointment, Alberto Gonzales??? No, a serious rebuff is needed here so that this crucial moment in time is not wasted. And as the means this is to be achieved by must be in conformity with Constitutional principles; ergo it bears reviewing what recourse can be had here on the matter from that source.

As readers of this weblog know, I am opposed to the idea of judicial filibustering since it has no place in the Constitution whatsoever nor has it ever been done for that reason. However, there is an advise and consent rule and we need to remember what that was established for by the Framers. To quote from an earlier installment of the long-running Framers Know Best series at this humble weblog:

[L]et us consider what the framers themselves thought about the advise and consent function of the Senate with judicial nominees. In the words of Alexander Hamilton:

In the act of nomination, [the President's] judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration. [Alexander Hamilton: From Federalist #76 -The Appointing Power of the Executive (circa April 1, 1788)]

That more than adequately sets forth the view of one of the great champions of the Constitution. As far as this writer can discern, the closest thing James Madison (the other well-noted champion of the Constitution) had to placing restrictions on judicial nominations was to allow for a two-thirds majority to disqualify a judicial nominee. Surely anyone with a normal intact functioning brain can see that this is a position which is 180 degrees removed from the idea of supporting a filibuster on judicial nominees. (So that a minority can prevent a floor vote on judicial nominees.) Indeed, Madison argued at the Constitutional Convention that the President should have the sole power of appointment but (of course) he settled on a limited role of the Senate for advise and consent. Let us summarize in brief what that limited role was before concluding this installment of the framers know best series.

Essentially, the primary reason the advise and consent rule was made was to prevent conflicts of interest in the president's nominations particularly political patronage and nepotism.[...] The framers saw that giving the Senate a broader authority than this in the process would infringe on the authority of the executive branch and create the kind of imbalance in government that the framers strove to avoid at every turn. But indeed that is what the Democrats have sought to do in their little charade of judicial filibustering -all the while trying to cloak their noxious activities in the incense of a mythical "longstanding tradition." Hopefully this post demonstrates in reasonably brief fashion why that dog will not hunt. [Excerpt from Rerum Novarum (circa May 24, 2005)]

In other words, while there is no provision in proper Constitutional thought for judicial filibustering, at the same time, the purpose of the advise and consent provision is to put a check on cronyism. And anyone who does not see cronyism in this appointment has blinders on: it cannot be more obvious and thus, I favour a proper use of advise and consent procedures to root it out.

In light of those two factors -the failure to advance the fight over judicial restraint and original intent and the obvious cronyism involved with this nomination- it matters not if Bush is being a little more clever than meets the eye is involved with a rope a dope sales job or if some conservatives are or are not faking that they do not like Bush appointee so as to make the democrats feel like she is not conservative enough though with the latter I do not think it is applicable.

What we are seeing is those who put faith in this man on a foundational issue in the culture wars and no evidence whatsoever that he even gets the magnitude of this moment in time. Throw into it obvious cronyism and the reaction that is to be taken seriously{3} is a bunch of loyalists responding angrily at being kicked in the teeth yet again as if this president is taking his base for granted.{4} That is the bottom line really, not whether or not this woman is a stealth conservative or not{5} and we have no credibility opposing the cronyism in The Evil Party if we do not show consistency and oppose it in The Stupid Party -and with the latter that means the nomination of President Bush's lawyer as a justice on the Supreme Court.

[Update: I was told via email that I appeared to have gotten more extreme on this issue within one day of the previous posting on this subject. As I said in a posting from today, I do not see how anything I have said above is either incongruent or not present in the previous postings except the difference in tonality. To say that I am as definitive as I can be on this candidate without being definitive would be an accurate assessment. Essentially, I what came out in the thread above is a seething lividness that well-qualified and sound judicial thinkers such as Janice Rogers Brown are not being considered for this nomination. Furthermore, if Bush lacks the backbone for a fight that is his problem and it will not (and is not) sitting with the base who has supported him through a lot of unsavoury situations and positions specifically for the opportunity to redirect in a constitutional direction the high court. Nominate someone such as Ms. Brown Mr. President and dare the Democrats to Bork a black single mother. Much as they did with Condoleeza Rice, they will show themselves to be the true racists since Brown is eminently qualified to sit on the court: far more so than some of those empty robes posing as sitting justices now. -ISM 10/10/05 6:37pm]


{1} Unless there is opposition to her from within the base that influences senators in Bush's party to either grill her hard or oppose her nomination.

{2} To note a few such postings as they pertain to one of the common single-issue voting blocks:

On the Pro-Life Issue and the Myopic Vision of Many Pro-Life Advocates --A Rerum Novarum Recapitulation Thread (circa September 08, 2004)

{3} With those who are opposed to her because Bush appointed her, that is not an opposition to concern oneself with. But those who are opposed to her on the basis of (i) charges of cronyism, (ii) because she is so unknown, or (iii) because she will avoid a necessary fight on the role of the Supreme Court in the public square: those are not people to take lightly. [Excerpt from Rerum Novarum (circa October 7, 2005)]

{4} Do not get me started on the litany of failures of this president...I have documented them in recent years and do not have the time (nor the patience) to do it again here.

{5} This is another area that annoys me but that is a subject for another time perhaps.

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Friday, October 07, 2005

More on the Miers Appointment:

This is to be read as an extension of what was blogged the other day on the matter at hand.

To start with, there is more from the blogosphere to report on the subject at hand.

--Todd Zywicki from The Volokh Conspiracy opines about something I have been pondering in private about: whether any of the proposed Republican presidential hopefuls for 2008 will seize the day on the controversy of this issue and publicly oppose this nomination.{1}

--Orin Kerr from The Volokh Conspiracy deals with the assertion that this is a matter of beltway elitism in opposing the nomination. Orin is right, this is not a beltway creation but involves disturbances across the political spectrum. With those who are opposed to her because Bush appointed her, that is not an opposition to concern oneself with. But those who are opposed to her on the basis of (i) charges of cronyism, (ii) because she is so unknown, or (iii) because she will avoid a necessary fight on the role of the Supreme Court in the public square: those are not people to take lightly.

--Beth over at the Vast Right Wing Conspiracy BLOG appears to concur with the view that much of the opposition to the Miers nomination is from "right wing activists" and that they are no more correct in their opposition than the senate activists who will oppose the nomination of an obvious conservative judge to the court.

--Christopher Blosser at the Ratzinger Fan Club has a roundup of views on this issue -though he seems to have missed Our previous posting on the matter...minor issue really since nothing definite had been said by Us on the matter up to that point. Chris also appears to be mulling this over before pronouncing on the matter which is not an unwise thing to do.

--Captain Ed of Captain's Quarters points out in more than one place the dangerous precedent to be set with making the evangelicalism of Ms. Miers a reason for supporting or opposing her.

--Bryan Preston of The JunkYard BLOG appears to be taking his time on reaching a definite position on this matter which is prudent on his part.

And with more news from the gang at Southern Appeal:

--JoelL reveals that the Miers nomination may be in trouble from Republicans in the Senate.

--Michael has posted some stuff from Quin Hillyer (whomever that is) who has said that this nomination is the death knell for his presidency

--Hunter Baker has taken issue with the "B+" assessment of this nomination that Hugh Hewitt noted a couple days ago.

--Feddie seems to have recovered somewhat from his initial reactions and has listed some questions he believes need to be posed to Ms. Miers at the hearings.

--QD has been critical of the elitism that permeates some of the opposition to the Miers nomination.

--Rice is not feeling any better about this nomination after a day and a half to mull it over.

And finally, in a very recent addition to the subject:

--Non-SA member Kevin Tierney seems in his recent musings to concur with the views of the aforementioned Quin Hillyer (via SA's Michael) that this is a disaster for the Bush presidency. He also concurs with Bryan Preston that President Bush's appeal to trust has been shattered by a series of sitautions leading up to this pick and therefore the President is on very thin ice to make such an appeal to those who have made up his base of supporters up to the present time.

After days of positing the views of others on this issue, reiterating some additional views from the same people (and posting some new ones above), and mulling over the various threads germane to the subject in question, the readers are probably wondering where their host stands on this issue. My position is still undergoing development; however, I will note where it is at the present with the disclaimer that it is not definite yet. Nonetheless, in summary form, here are the threads of what I have arrived at thus far...

---I agree with Orin Kerr and Todd Zywicki of The Volokh Conspiracy on some things -Orin as I noted above and Todd on the idea that a Republican hopeful in 2008 could make a name for themselves if they work to get this nomination rejected in favour of a known constructionist.

---I agree with Captain Ed of Captain's Quarters that any attempt to support Miers because of religious beliefs will backfire on such supporters with a vengeance and set back the attempt to properly reshape the court until either the next resigning justice or the next Republican president (whichever comes first).

---The musings of Bryan Preston of The JunkYard BLOG which I noted approvingly of in the previous posting are ones that I still concur with. Furthermore, Bryan's noting that President Bush seems amazingly tonedeaf to the squandering of trust which conservatives placed in him is something I concur with...Greg Mockeridge may recall me mentioning this to him by phone two nights ago. Furthermore, Bryan summarizes well what Greg and I concurred on in our phone conversation:

The Coalition of the Illin' can be as angry at President Bush as they please over this nomination, and there's certainly some grounds for it. But they should direct some of their ire and public commentary at the Senate Republicans. This debacle was born in the Senate, under the Republicans' watch. We have a majority in name only.

Those who have thought that my concerns about the 2006 election were bordering on the absurd should stop to reconsider them in light of what we are seeing in the handling of this whole Miers situation thus far.

---I noted in the previous posting on this topic that I agreed with QD's original thoughts on the matter and I still do. There is a problem with this nominatiom from the standpoint of giving any indication that this will move the court from its activist rulings in recent decades back towards a proper approach to the Constitution. Just because Miers may be positionally correct, there is no evidence to suggest that she will have a paradigm shifting effect on the court in the coming years if she is confirmed by the Senate.

---I also concur with QD that she will need to be grilled by Republican senators not just the Democrats. Furthermore, QD once again captures a key part of my outlook on this issue in his recent posting noted above.

---In the previous posting on this topic, I noted that I agreed with William's second and third points from his initial thoughts on the matter and I still do view them as significant keys for this entire equation. To note them here, they are as follows:

Because Miers is a stealth candidate, we cannot yet judge this pick. Perhaps she is in agreement with Karen Williams and Mike Luttig on issues of interpretation and the role of the judiciary. We just don't know. Much like Roberts, we will have to depend on those who know the nominee personally to gave us some insight. I would prefer to read a nominee's books, articles, and opinions to learn for myself, but this is apparently the way the game is now played.

Lack of judicial experience does not concern me. Partners in major law firms have a more challenging job than most federal judges. This experience in private practice and how the legal world really works, in my opinion, is an asset.

---I must admit that I disagree with Beth on the double standard here as I hinted at with my audioposting on physician assisted suicide, the Supreme Court, and original intent. However, I do agree with her that for many on the so-called "right" there is an activist element that needs to be watched carefully. I am however not an activist insofar as I am not promoting anything with this nomination that is to my own advantage over that of other people. That is the hallmark of an "activist" generally speaking and it does not in any way affect my approach to these issues nor that of many who have problems to varying degrees with this nomination.{2}

---I do not completely agree with Feddie and Rice but then again, I am not a Republican party loyalist (or even a Republican). If I still was a Republican, I would probably view things as they do though admittedly. They have been soldiers in the trench, loyal Republicans who feel betrayed by this; ergo their reactions of anger initially are in my view justified ones.

---I agree with Kevin Tierney that this is a major dropping of the ball for President Bush for many of the reasons he specifies (particularly those which mirror what Bryan Preston had to say on the matter). There is a serious trust deficiency here and President Bush has kicked the teeth of his base in one too many times to come back again and say "trust me" this light, Kevin's parallel to the battered housewife is quite apropo.

---I have to agree with JoelL that if this nomination is in trouble that is a good thing.

In summary, my view is not definite yet (I am willing to give the candidate the benefit of the doubt until we know what she will say at the hearings). Feddie is right that we need to ask specific questions and make this a referendum of sorts on the judicial philosophy of the Supreme Court in the coming years. This would have been easier with a known commodity but at the very least, if it appears Miers will be confirmed, then somehow this kind of confrontation needs to be manufactured out of her nomination hearings. Ask her some clarifying questions about overall philosophy and not how she would rule on a particular case. We can start with the questions offered by Feddie and probably compile quite a list...then there is the bugging of key Republican senators to ask these questions in the hearings.

There cannot help but be in the back of my mind a long-held lament as I conclude this posting and it is this: my kingdom for a viable third party. And no, I do not mean in the traditional sense but instead in the kind of reconstituted sense I have outlined on this very weblog before. But that is something for the longterm and will not help in the immediate future; however, those stinging over the latest teeth kicking they received by President Bush would do well to give that proposal some careful consideration over the coming months and years.


{1} I am not saying oppose it because they should or should not but solely from the perspective of this being a hotpoint issue over which much mileage can be gained politically.

{2} I am not saying Beth's view on this is without merit: heck, we all know certain Republicans sorts who approach the court with their own pet issues to promote. I simply do not think most of those disappointed in this nomination fit that criteria.

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For only the second time in this weblog's history, I have deleted the text of a post from the archives and replaced it with something else. Go HERE for the details if you are interested.


Miscellaneous Musings on Dialogue

this is an audio post - click to play

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Thursday, October 06, 2005

"McShawnglin Group" Dept.
(On Stephen Hand and Certain Statements He Needs to Account For)

[Prefatory Note: This post was first drafted back on September 25, 2005. Since that time, one of the sources which was heavily utilized has become defunct. After a few minutes of doing word searches, it was determined that most of the stuff from the defunct source was available at other sources; ergo, some last minute amending of the text in purple font in spots is intended to deal with this circumstance. -ISM]

The purpose of this thread is to deal in a reasonably economical fashion with several frequently enunciated statements by Mr. Stephen Hand and point to past corrections of those statements which he has continued to ignore. His words will be in red2 font where quoted. For the sake of clarifying the points from the surrounding commentary, I will put in bold type (regular font) the actual questions asked of Mr. Hand in this posting. Hopefully that will prevent him from failing to respond to them but let us move onto the issues to be covered in this posting now.

Issue 1 - Magisterial vs. Non-Magisterial:

This one will be a bit longer than the others because it is a common root error in Mr. Hand's approach to controverted issues and I want to make sure the distinctions are crystal clear for the readers.

JPII and Benedict have both pronounced on this. [Stephen Hand (circa September 23-24, 2005)]

As the above text was subsequently deleted, I will supply for the readers another link from which a duplicate of the statement above can be viewed.

Mr. Hand is referring to Just war and the Iraq conflict issues above. To remind readers who may have forgotten, one of the criticisms of Mr. Hand by Greg Mockeridge was that he was claiming magisterial status for the pope's statements on the war. Greg demonstrated this by quoting in his guest editorial the following words of Mr. Hand where he is critical of Fr. Pavone for taking a different stance on the war than Mr. Hand did:

Mr. Hand’s lack of good sense and charity towards those who support the war in Iraq is best expressed in his vicious (and I believe, sickening) attack on Fr. Frank Pavone:

Fr. Pavone (Finally!) Reveals His Americanist Point of Departure

...and Catholicism for him practically becomes in consequence a subset to an American religion, to manifest destiny summed up in "I pledge allegiance...My country right or wrong..."

Hear the good man sadly declare himself wiser than the Holy Father as he plays fast and loose with the Pope's clear teaching and intent in another matter of life and death ...

Trust George W ...but not the Pope and Cardinal Ratzinger. It would appear Fr. Pavone was asleep, or turning his face aside, while the Holy Father spoke so clearly about the illegitmacy of this "preemptive" war, and that he cares more for some babies than others. Those below do not qualify...Very sad indeed.

What is "very sad indeed" about all this is how far Mr. Hand is willing to go (and who he is willing to malign in the process) in order to put a Catholic window dressing on his pseudo-pacifistic drivel. By saying Fr. Pavone “cares more for some babies than others” he is casting aspersions on the genuineness of Fr. Pavone’s pro-life commitment. Such insinuation on the part of Mr. Hand does not escape the charge of libel in this writer’s view. [Excerpt from Greg Mockeridge's Rerum Novarum Guest Editorial (circa April 29, 2005)]

The same criticism was echoed by your humble servant in a commentary on Greg's guest editorial in these words:

Now this writer tries as much as possible to make these sorts of arguments on the basis of issues and not personalities. Unfortunately, the situation before us has degenerated so badly that it has to be made personal. Stephen Hand is essentially claiming that someone of the outlook of your humble servant is not as "authentically Catholic" as he is. This kind of shameless "more Catholic than thou" approach is beneath the integrity of a man with Stephen's gifts. This writer for one will not stand for it any longer -particularly since Stephen has chosen to build his arguments with emotional appeals and rhetorical flourishes which so often are (in the words of Shakespeare) "so much sound and fury signifying nothing" substantively speaking. [Excerpt from Rerum Novarum (circa April 29, 2005)]

In order that the above criticism as I have worded it is properly understood, it is necessary to highlight what is required of Catholics with regards to assent to various statements made by a pope. The proper disposition of Catholics towards Church teaching was outlined by the Second Vatican Council in its Dogmatic Constitution Lumen Gentium in section 25. Here are the pertinent words:

[R]eligious submission of mind and will must be shown in a special way to the authentic magisterium of the Roman Pontiff, even when he is not speaking ex cathedra; that is, it must be shown in such a way that his supreme magisterium is acknowledged with reverence, the judgments made by him are sincerely adhered to, according to his manifest mind and will. His mind and will in the matter may be known either from the character of the documents, from his frequent repetition of the same doctrine, or from his manner of speaking. [Second Vatican Ecumenical Council: Dogmatic Constitution Lumen Gentium §25 (circa November 21, 1964]

This is why Greg raised the issue of Mr. Hand's treatment of the pope's comments on the war as if they were magisterial and also why I referred to Mr. Hand essentially claiming that someone of the outlook of [Greg and myself] is not as "authentically Catholic" as he is. Certainly prior to that point, Mr. Hand had a past replete with making references to the war utterances as the pope's "teaching". He has shown since that time no discernable distinctions on this matter except when he is called to the carpet for it. It seems to me that Mr. Hand wants to have it both ways here: to place that kind of perception on the subject to try and hoodwink whatever readers he has left and then to claim that he is not confusing the issues at all when his disingenuous tactics are pointed out publicly by other people.

In light of what is noted above viz. the assent owed to magisterial teachings of the pope, the criticism Greg and I levied can be seen for what it was: a call to Mr. Hand to either stop treating those statements which were not magisterial as if they were{1} or prove beyond a reasonable doubt that Greg and I are wrong as to the precise status of those statements. And though Mr. Hand has claimed that Greg and I misrepresented him on these matters, it was pointed out by both of us that he has frequently talked out of both sides of his mouth on these issues. Or to quote my three part thread from July 1-2, 2005 where this point was touched upon in a footnote (via a private email sent to your host by Greg Mockeridge about a month earlier):

You have to read Stephen's so-called truce statements with a bit more than just a cursory glance. In the article...refers [to], Stephen says that it "never occurred to [them] that to suggest that those who support this war are less Catholic than we who oppose it." Then a few lines later he drops this [bit]:

"We confess our fear that too many Catholics are more influenced by the judgements of media personalities and news channels than the prudential wisdom and ordinary magisterium of the popes and the Church " [Greg Mockeridge: Excerpt from a privately circulated email circa May 31, 2005 about a TCR statement (circa May 29, 2005)]

Apparently Mr. Hand believes that we are incapable of seeing through this kind of Orwellian doublethink. But then again, those of us who actually know our history are not so rash as to place trust in the diplomatic positions of the Holy See as Mr. Hand so naively does. This would not be a problem (of course) if Mr. Hand did not try to give the impression that his naivete was somehow more commendable than the more historically informed views of several of us who disagree with him. [Excerpt from Rerum Novarum (circa July 1, 2005)]

Again, references to the "ordinary magisterium" are references to positions which require assent of Catholics. Since it has been made clear by the competent authorities that there is no doctrine on the point in question, Mr. Hand has been asked to cease his disingenuous use of words and phrases which would give to the pope's comments on the war a weight they do not have. Magisterial teachings require assent but those comments were not magisterial. And for that reason, they can be assessed as any other non-magisterial comments are and the arguments used to come to those conclusions can be analyzed on their own merits and rejected or accepted on that basis.

For this reason, Greg's recent question to Mr. Hand is deserving of an answer by him.{2} And Mr. Hand will be in a serious credibility quagmire if he answers yes to that question since he would (by giving such an answer) verify precisely what Greg and I were critical of in the first place. And (of course) if he answers no, then he has to be held accountable for his disingenuous use of terminology which contradicts his stated position.{3} Either way, he cannot win but an answer is required on this point from him one way or the other if Mr. Hand is to be presumed to have any crediblity whatsoever in commenting on this issue.

On the issue of making proper distinctions between magisterial and non-magisterial matters (a key flaw in Mr. Hand's ideological slaw), I refer back to some of the exchanges from May of 2005 since they will show that this pattern was continued by Mr. Hand despite the attempts of Greg and this writer to point these problems out to him.

They suggest, absurdly, that we don't know the difference between dogma and the prudential judgements of the Popes. [Stephen Hand (circa May 7, 2005) as quoted at Rerum Novarum (circa May 9, 2005)]

I checked and those comments can be found in other threads in the blogosphere -some of which were posted by Mr. Hand; ergo I note this here for the record.

In the same posting above, I dealt with this assertion in the following words:

At that point [in my commentary from April 29th -ISM], there is a footnote that includes the following text after examining an actual example of Stephen's distinction-blurring approach to the issues in question:

That Stephen does not make these kinds of simple distinctions is troublesome. In the opinion of the present writer, he can do it (as he has in the past) but he simply does not want to when the subjects involved are peculiar to his particular agenda.

So much for the idea that either Greg or this present writer claimed that Stephen could not make the necessary distinctions. [Excerpt from Rerum Novarum (circa May 9, 2005)]

And to demonstrate once again Mr. Hand's duplicity of speech, here is another citation from the aforementioned thread:

They just don't understand that these distinctions are besides the point where the Popes' teachings on this war, on our creeping totalitarianism and imperialism, and the death penalty (revenge killing) are concerned.

Again, (i) there has been no magisterial teaching on the Iraq war and (ii) Stephen has misrepresented the actual teaching of Evangelium Vitae on the death penalty.[...] That is sufficient to confute the above statement. Nonetheless, Stephen's criticism of us for supposedly misrepresenting him when he continues to refer to the popes's statements on the war as "the popes' teaching" -implying that those statements are a part of the papal magisterium- show themselves to be groundless assertions on his part. [Excerpt from Rerum Novarum (circa May 9, 2005)]

As I am tired of this kind of double-speak, I am hereby publicly requesting Mr. Hand to clarify once and for all if the pope's position on the war constitutes Church teaching or not. If they do, then they require religious submission whereas if they do not, they do not. And since the magisterium has clarified this matter, Mr. Hand needs to make it clear that he accepts these clarifications with the proper disposition of mind and cease and desist from his public misrepresentations on these issues. And on the matter of magisterial weight, I want to close with some comments I made in my first response to Mr. Hand's evasion of what Greg and I noted on April 29, 2005:

In Greg's editorial, he noted that Stephen had not provided any magisterial citations to defend his obvious position that anyone not embracing the pope's presumed view on the war was somehow "less orthodox" than people such as Stephen. (Greg's position was one that I concurred with in my commentary.) Stephen responded to this with more non-magisterial texts which (of course) only solidifies the veracity of Greg's observations in the editorial. [Excerpt from Rerum Novarum (circa May 4, 2005)]

The readers can also find Mr. Hand's above bits at the source linked to above where he posted them. I made this challenge back in May, I reiterate it anew here: Mr. Hand is called to produce those magisterial texts (to support his usage of authoritative language and also to support his reference to the war issue as "grave") or cease his public antics which cannot avoid creating the misperception that there is Catholic teaching on the war in Iraq when there is not. Essentially, produce the texts or zip it. Mr. Hand is also called to deal with the doctrinal clarifications of the present pope on these matters when he was chief theologian for the previous pope.{4} Otherwise, he has no credibility whatsoever in attempting to discuss these issues.

Issue 2 - Recourse to Statistics Which Have Been Either Debunked or (At a Minimum) Have Been Challenged As To Their Veracity:

Moving from the issue of the binding nature of the pope's war utterances to the use of statistics, we have the following very recent comments from Mr. Hand on the death toll of civilians in Iraq:

"Those figures do not take into account the death toll arising from indirect causes of the war and occupation, such as crime and infrastructure breakdowns. According to one study published last October by the British medical journal The Lancet, Iraq had suffered nearly 100,000 "excess deaths" between March 2003 and September 2004. [Stephen Hand (circa September 22-24, 2005)]

Also worth noting here is that Mr. Hand is repeating statistics already dealt with by Chris Blosser who brought up Mr. Hand's continued recourse to those statistics contemporary to the time he uttered them on the thread above. In doing so, Christopher referred to material he had written over three months previously in which those figures were debunked as to their accuracy. To quote from his justwar BLOG on these issues:

100,000? 50,000? 37,000? 12,000? -- When the question of casualties is raised a number of statistics are bandied about. One blogger I've encountered is known for his persistent citation of "100,000" casualties. When he used the statistic in one of our many discussions I took him to task, inquiring where he obtained it (he neglected to respond).

The "100,000" of course comes from a controversial study by the British medical journal The Lancet, regarding which one need only point to the many criticisms of its methodology -- see "100,000 Dead - Or 8,000?", by Fred Kaplan. (Slate. Oct. 29, 2004), along with a thorough and sustained analysis by the blogging collective ChicagoBoyz. In fact, not even the Iraq Body Count (no friend of the Bush administration) will touch a statistic that high -- a website which in itself is notably flawed in its own gathering of numbers. The blogger in question has since taken to citing statistics in the range of 50-100,000 -- which leads me to believe he has taken no time to investigate the validity of the source. [Chris Blosser: From the Catholic Just War BLOG (circa June 17, 2005)]

For this reason, an important clarification on this point is necessary if there is to be even the remotest possibility of dialogue. Essentially, Mr. Hand needs to explain (i) why he continues to parrot discredited statistics as he does and (ii) why anyone should take him seriously as a credible commentator on these issues in light of his continual parrotting of said discredited statistics. That would suffice to deal with this issue for the time being.

Issue 3 - Use of Divisive Epithets by Mr. Hand to Distinguish Various Catholics Contrary to Explicit Magisterial Teachings Proscribing This Conduct:

To begin pointing out the problems in this area, I will posit some bits from Mr. Hand's blog which (since he does not archive) may not be visible for viewing in the not-too-distant future.{5} Nonetheless, these next entries will not be dated since I have no idea when they were posted.{6} Nonetheless...

Do You Know What Catholic Peace Fellowship Was Doing This Week?

Fasting for the suffering in Darfur. What were the Catholic warbloggers doing? If what you see at their blogs is typical, then tilting at intellectual and theological opponents with what they think are clever sentences, searching for anecdotes to justify what JPII and Benedict called an unjustifiable war, and forgetting (with respect to terrorism in Iraq) that the chicken --war-- came before the eggs in Iraq. Theology is more than cleverness.

This reminds me of a parable of Jesus:

God, I thank thee, that I am not as other men [are], extortioners, unjust, adulterers, or even as this publican. I fast twice in the week, I give tithes of all that I possess. And the publican, standing afar off, would not lift up so much as [his] eyes unto heaven, but smote upon his breast, saying, God be merciful to me a sinner. I tell you, this man went down to his house justified [rather] than the other: every one that exalteth himself shall be abased; and he that humbleth himself shall be exalted. [Luke xviii,11-12; 14]

As what is noted above suffices to deal with the first tidbit, let us move onto some others...

The War Bloggers Are All Over Paul Krugman...

The war bloggers retort...

Then the warbloggers retort with more...[Stephen Hand (circa September 2005)]

Pathological Warmongers Breathe Death Threats Against Peacemakers

That's right. And don't underestimate the lethal nature of their hate (need it be said that war and hate are evil twins?): [Stephen Hand (circa September 2005)]

There is a (sometimes nasty, I'm afraid ) fight for the heart of American Catholicism going on and this bloody imperial war in Iraq has focused it sharply. It is the war revolving around the Consistent, Ethic of Life, (do read this if you have not) which, alas, the neoconservative (largely GOP politically) groupies mostly abhor and which we adhere to with all our hearts. For every article we at TCR have on the war, we have always had several on spiritual and other matters because the latter is the foundation, the ground, of the former. We Consistent Ethic people are already certainly marginalized by the neoconservatives who are seeking vainly to change the Church into a quasi-calvinist-americanist thing politically. [Stephen Hand (circa September 2005)]

Since I only visited Mr. Hand's weblog today, I cannot put a precise or even a probable date on the above statements. The only ones I have a probable date for are these:

Proposal to Debate Warbloggers

One on one, at their chosen time and venue. Any one of the following, as the invitation extends to each person individually. Christopher Blosser, "Evangelist" David Armstrong, Shawn McElhinney, or Greg Mockeridge...[Stephen Hand (circa September 19, 2005)]

The War Bloggers Favorite Prooftext...[Stephen Hand (circa September 24, 2005)]

I will deal in detail with this article in the next issue to be raised. In the meantime, let us continue with recent comments by Mr. Hand.

Bring the whole Ratzinger (say what?) fan club. I will tape it and podcast it. You'll be surprised how gentle I am, even as I dismantle the neoconservative worldview and arguments for this war. [Stephen Hand (circa September 24, 2005)]

The above tidbit was not duplicated at Mr. Hand's blog so it was deleted with the above link. Nonetheless, he did say it and readers can judge the reliability of the above citation by what they can verify of his other statements which (as of this posting) can be verified at the links provided above.

Nonetheless, what is noted above should suffice to give an idea of Mr. Hand's approach on these matters is. (It is certainly far more than what he has been willing to do on his end over the months.) Moving from that issue to a few points raised in my original response to Mr. Hand's response to Greg's editorial and my commentary on it:

It is also interesting that Stephen likes to reference sources like The Houston Catholic Worker which uses phrases such as "Neuhaus and the neo-conservative crowd at First Things" while ignoring what Pope Benedict XVI's predecessor said about these kinds of labels. This is something that I linked to in my commentary but here is the text in full:

As regards matters in which without harm to faith or discipline -in the absence of any authoritative intervention of the Apostolic See- there is room for divergent opinions, it is clearly the right of everyone to express and defend his own opinion. But in such discussions no expressions should be used which might constitute serious breaches of charity; let each one freely defend his own opinion, but let it be done with due moderation, so that no one should consider himself entitled to affix on those who merely do not agree with his ideas the stigma of disloyalty to faith or to discipline. [Pope Benedict XV: Encyclical Letter Ad Beatissimi §23 (circa 1914)]

Now once again, Cardinal Ratzinger made it clear in his capacity as CDF prefect that the subjects of application of the death penalty and application of just war criteria were areas where there was no authoritative judgment from the Holy See: something else that Greg and I noted in our respective pieces which was conveniently passed over by TCR. Again, apparently, "Roma locuta est" is yet again selectively applied by Stephen and his allies...

And with regards to labels such as "neo-conservative" being applied to Catholics such as Fr. Neuhaus and Michael Novak, I remind the readers of the paragraph following the above one from Pope Benedict XV in his first encyclical:

It is, moreover, Our will that Catholics should abstain from certain appellations which have recently been brought into use to distinguish one group of Catholics from another. They are to be avoided not only as "profane novelties of words," out of harmony with both truth and justice, but also because they give rise to great trouble and confusion among Catholics. Such is the nature of Catholicism that it does not admit of more or less, but must be held as a whole or as a whole rejected: "This is the Catholic faith, which unless a man believe faithfully and firmly; he cannot be saved" (Athanas. Creed). There is no need of adding any qualifying terms to the profession of Catholicism: it is quite enough for each one to proclaim "Christian is my name and Catholic my surname," only let him endeavour to be in reality what he calls himself. [Pope Benedict XV: Encyclical Letter Ad Beatissimi §24 (circa 1914)]

Readers who wonder why I almost always refer to people who refer to themselves by particular appellations as "so-called", "self-styled", or "pseudo" with the appellations themselves put into quotation marks now have their reasons. This is another area where Stephen and his allies fail to heed the teaching of the Popes, so again it bears noting that "Roma locuta est" is selectively applied by Stephen and his allies. [Excerpt from Rerum Novarum (circa May 4, 2005)]

This is in some respects a reiteration of the point that Mr. Hand does not make the proper distinctions on these issues but it is important nonetheless since he continues to falsely assert that he does make said distinctions. Mr. Hand has yet to answer for the obvious inconsistencies Greg and I pointed out in this area so until he does, let it be recognized that he lacks either the ability or the will to discuss these issues and make the proper distinctions for (presumably) ideological reasons. And for those who are paying attention, these are the exact same assertions I made in my commentary on Greg's editorial back on April 29, 2005: nothing has changed thus far and my observations since that time remain intact, stable, and valid. Hopefully, with this more "soundbyte" approach to certain questions, Mr. Hand will provide us all with some answers.

Furthermore, Mr. Hand also has to explain why he continues for ideological reasons to flout the teachings of Pope Benedict XV on the use of derisive labels as he does: teachings I might add which have actual magisterial support unlike the issues Mr. Hand tries to pass of at least by implication as possessing this degree of authority. And if Mr. Hand disagrees with my assertions here, I refer the readers back to issue 1 and the subject which has been the root and matrix of this entire dispute since Greg and I raised the issues in late April of 2005.

Issue 4 - Confusion on the Issue of Just War, Whose Authority The Criteria is Ascertained, Whose Authority a Just War is Levied, Etc. by Mr. Hand:

Then there is the issue of just war. Among Mr. Hand's most recent utterings on the matter include this little chestnut.

But if killing is done against the popes counsel about the legitimacy of the war, then it is truly problematic morally. Unless one has made Americanism his civil religion. [Stephen Hand (circa September 23, 2005)]

And this one:

I'll take the "convincing... conscience enlightened by faith" of JPII, and Ratzinger's ratifying it as such, any day over the pronouncements of American civil religion. [Stephen Hand (circa September 23, 2005)]

Once again, this thread was deleted since I first drafted this text; ergo the above comments cannot be linked to. See my previous statements on how to approach such unverifiable comments as the ones listed above (not to mention my comments in darkblue which are posted next).

It is clear by the context of that statement that he is referring to President George Bush for those who were wondering. I responded to the above assertion with the following words:

Is this the same Cardinal Ratzinger who admitted in the same Zenit article often prooftexted by those opposed to the military option in the middle east that political questions were not within his competence???

Nonetheless, I do find it interesting that Mr. Hand would ground his position on a fundamental argumentation fallacy of accepting the opinions and conclusions of an authority rather than the actual arguments advanced.{1} Obviously, if this was a matter of doctrine, such an approach would be required for a faithful Catholic but in the absence of such a status, there is no reason whatsoever to suspend one's will and intellect on these matters. So what we have is Mr. Hand calling for something that the popes themselves do not call for. Readers can take from this situation whatever they like but it sure appears suspect (to put it nicely).

Furthermore, since the authority recognized by the CCC to levy war is the secular authority, it is to this authority where the judgment is levied, not that of the pope. This is easily demonstrated with Catholic sources -indeed I have done so many times already. And as the authority which weighs the assessments for the above critieria is not the pope but the sovereign, that means the executive, president, or prime minister if you will in a republic such as America.

For this reason, Mr. Hand's assertions above reveal that he is willing to go against even the boundaries of Catholic just war critieria to advance his agenda. It is one thing to disagree with the president on the matter (and actually posit reasons for this for consideration of others) but it is another to distort the Catholic just war criteria to do it. Cardinal Ratzinger rightly recognized that political issues are not within his competence. And he is undoubtedly aware that the authority for assessing whether the critiera is met for just war is the sovereign of a nation under whose authority the war is levied (if it is).

That is not to say that there remains no role for the church in the matter of course. (A key role for the magisterium is aiding in the formation of conscience.) However, a whole phalanx of factors are involved in the latter formation and at the end of the day the magisterium is as incompetent on political matters as the sovereigns of the world are on theological and moral ones. Each has their own particular competence as the church has always recognized and does to this day. Unfortunately, some who seek to advance particular agendas are interested in blurring these distinctions for some reason or another. [I. Shawn McElhinney (circa September 24, 2005)]

The footnote above was to two threads at Rerum Novarum where I discussed this very argumentation fallacy before -including once in the context of Mr. Hand's own errors. Here they are for the sake of completion:

"Argumentation Fallacy" Dept. (circa August 27, 2004)

On Proper and Improper Approaches to Argumentation (circa May 14, 2005)

My point with the above response was (in part) to point out a confusion on the part of Mr. Hand with regards to where the authority for ascertaining the criteria for just war and levying said war resided. Another reason was to point out the fallacious form of argumentum ad vericundiam which he sought to utilize for his position. With regards to the former point, Mr. Hand has the following to say on the matter:

This is clearly subject to moral principles which Just War theory (though increasingly obsolete in a nuclear world as Benedict and JPII suggested) attempts to serve (but, you see, the ground has shifted under it, which is precisely Ratzinger's point in saying it likely doesn't apply except as a principle of criticism against modern warfare as it was for the Council and JPII)...

If the civil authority is the sole and final word in declaring war then the Church had no right to pester Hitler, or even Saddam marching on Kuwait or any other vicious aggressor in history. Hitler would have appreciated such court theologians. But JPII and Benedict have both pronounced on this and the answer is sufficient for a "conscience enlightened by faith". [Stephen Hand (circa September 24, 2005)]

Fortunately, the above comments are still viewable at Mr. Hand's blog...see this link for details.

This is a clear confusion of what I noted (of course) and a caricaturing of my position. However, before I can point that out, something that was noted in the first issue point needs to be reiterated and it is this: Mr. Hand is once again muddying the waters viz. the distinction between magisterial and non-magisterial statements. Furthermore, whenever Mr. Hand refers to the "conscience enlightened by faith" tidbit, the readers need to remember this phrase in proper context:

Eminence, a topical question that in a certain sense is inherent to the Catechism: Does the Anglo-American war against Iraq fit the canons of a "just war"?

Cardinal Ratzinger: The Pope expressed his thought with great clarity, not only as his individual thought but as the thought of a man who is knowledgeable in the highest functions of the Catholic Church. Of course, he did not impose this position as doctrine of the Church but as the appeal of a conscience enlightened by faith.

The Holy Father's judgment is also convincing from the rational point of view: There were not sufficient reasons to unleash a war against Iraq. To say nothing of the fact that, given the new weapons that make possible destructions that go beyond the combatant groups, today we should be asking ourselves if it is still licit to admit the very existence of a "just war." [Excerpt from Cardinal Ratzinger on the Abridged Version of Catechism Compendium Expected Out in 2 Years via Zenit (circa May 2, 2003)]

Mr. Hand obviously presumes that the position articulated by the pope is the only one that can be arrived at by "a conscience enlightened by faith". Cardinal Ratzinger certainly did not say this nor was it even implied. Therefore, to read into his words what he did not say is manifestly uncharitable to say the least. Mr. Hand needs to explain why he reads into the words of Cardinal Ratzinger sentiments not expressed by him since to do this with an eye towards marginalizing others violates the traditional canons of Catholic charity to no small degree.

As far as the idea that the Holy Father's view is convincing from the rational point of view I happen to strongly disagree for reasons I have outlined in no small degree of detail as have some others. Indeed, the rational point of view on this is quite weak when all the relevant factors are accounted for...and I not only see no evidence that Cardinal Ratzinger did this but indeed see clues that he did not do this. That is not a problem of course for those of us who recognize (as the cardinal himself did) that geopolitical issues are not within his competence. But (of course) for those who hang on Cardinal Ratzinger (now Pope Benedict XVI) these expectations are going to find their presumptions crushed under a weight it cannot be expected to bear.

This is why unless Pope Benedict XVI takes this matter beyond where Pope John Paul II and makes this a part of his magisterium{7} my position on this is not going to change an iota. I have seen nothing resembling an intelligent and well-reasoned argument in opposition to what I have written. Indeed, I have almost dispaired of the paucity of such arguments in the various media outlets and have considered for some time the possibility of positing some viable arguments against the war for those opposed to it to take and run with. Whether that actually happens or not remains to be seen but before this digresses further, let us get back to outlining how Mr. Hand has demonstrated obvious of what I stated on just war (along with yet more caricaturing of my position). In responding to his statements, I noted the following in brief:

The civil authority is the one who is to assess whether the just war criteria is met and any pretense of a just war involves a decision from the competent sovereign. That does not mean that the Church does not have a role in the equation -indeed I explained this to a non-Catholic who was very critical of the pope's position at the outset of the war. But I noticed you attempt to posit an artificial dichotomy into the mix and imply that I said it when I did not. Who is really doing the obfuscating Stephen???

Again, the link to the above comments is defunct now.

And while more could be noted than that,{8} I will limit myself to what is noted above for now and move on to point out that this was one of the points that Greg and I made in our original threads back in April of 2005. To quote from a clarification I made viz. my commentary on Greg's editorial from May 4, 2005:

Greg went over the teaching on just war criteria (and which parties make the determination if they have been met) from the Catechism of the Catholic Church. Stephen has shown in the past couple of years that he either has not read those passages or that he misunderstands them. As far as the actual statements made on the subject of "Ultramontanism", I challenge anyone to find me referring to Ultramontaines in the manner Stephen refers to above. My comments were carefully crafted and based on no lack of familiarity with the nineteenth century controversies in question. What I *actually said* was this:

Stephen Hand and his allies unfortunately have an eerily similar view with regards to the pope's statements on their pet issues: elevating his offhand comments to the status of magisterial (and hence binding) doctrine.

And not only has Stephen failed to interact with that point but indeed his entire response is one giant affirmation of precisely what I was saying in the commentary!!! [Excerpt from Rerum Novarum (circa May 4, 2005)]

Once again, it was (and is) evident that Mr. Hand has failed to interact with the arguments advanced by Greg, Chris, DaveArmstrong, and this writer. He is still making the same errors and incautious language that we pointed out months ago and which he was indignant at us for doing. This is only a sampling of some of the points where Mr. Hand has misstepped and not infrequently. More could be noted but in the interest of getting some actual answers from Mr. Hand this time (rather than the saimo saimo run around), those are all I will touch on at the present time.

On this matter, I will simply ask Mr. Hand to explain to us in light of what I have noted in this posting from Catholic sources{9} how his manifested views on just war (viz. who is the competent authority to assess the evidences and ultimately levy such a war) are at all congruent with the totality of the Catholic just war tradition.

This is not a short posting and the specific questions are spread throughout the text. Therefore, to summarize briefly the questions Mr. Hand should endeavour to answer, they are as follows:

--Viz. Issue 1, there are several points which need a response from Mr. Hand. They can all be summarized in Greg's recent question to Mr. Hand {10}. However, for the sake of greater exactness, I want to note the others which pertain to the latter. They are (i) a public request from me for Mr. Hand to clarify once and for all if Pope John Paul II's position on the war -which seems to be mirrored by his successor Pope Benedict XVI- constitutes Church teaching or not and (ii) should he answer in the negative on the matter, Mr. Hand needs to make it clear that he accepts the position on the matter that the Church does with the proper disposition of mind and in the future reflect this realization accordingly in his writings and statements on the subject in question.

If Mr. Hand responds to my request in the affirmative, he is called upon to produce the magisterial texts to support to support his usage of authoritative language and also to support his reference to the war issue as "grave" and justify this usage in light of the doctrinal clarifications of the present pope on these matters when he was chief theologian for the previous pope.

---Viz. Issue 2, Mr. Hand needs to explain (i) why he continues to parrot discredited statistics as he does and (ii) why anyone should take him seriously as a credible commentator on these issues in light of his continual parrotting of said discredited statistics.

---Viz. Issue 3, Mr. Hand also has to explain why he continues for ideological reasons to flout the teachings of Pope Benedict XV on the use of derisive labels as he does.

---Viz. Issue 4, Mr. Hand needs to explain why he reads into the words of Cardinal Ratzinger (on Pope John Paul II's view being one "of conscience enlightened by faith") sentiments not expressed by him. Furthermore, it would be nice if Mr. Hand could explain to us in light of what I have noted in this posting from Catholic sources{11} how his manifested views on just war (viz. who is the competent authority to assess the evidences and ultimately levy such a war) are at all congruent with the totality of the Catholic just war tradition.

While more could be noted, I think this suffices. One of the roles of dialogue is clarification and I have not been hesitant to clarify my positions over the years when others have questioned me on them. Mr. Hand mentioned having a debate but in truth, a dialogue is potentially far more productive than a debate. Mr. Hand has claimed I and others have misrepresented him on various issues. I have chosen these four issues to request from him further clarifications. In the interest of facilitating dialogue on these issues in accordance with the minds of the recent (and present) pope,{12} I humbly request of Mr. Hand clarifications on the points noted above.


{1} Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia. [CDF Prefect Cardinal Joseph Ratzinger: Communique to the USCCB on Worthiness to Receive Communion (circa 2004)]

In light of Mr. Hand's frequent reference to those who take the opposing positions on the war to his as holding to "grave" positions -and the Church's view that those guilty of grave (read: mortal) sins not being worthy to receive communion, Mr. Hand should be ashamed of himself for equating the two when quite clearly Pope Benedict XVI (in his previous role as doctrinal prefect of the CDF under Pope John Paul II) does not view things that way. Mr. Hand needs to cease and desist from this kind of dividing (Gk. schisma) language express himself in accordance with the mind of the magisterium on these matters.

{2} Yes or no, [Stephen]. Are you saying that JPII's opposition to U.S.-led invasion of Iraq is binding on the Catholic conscience? [Greg Mockeridge (circa September 24, 2005)]

{3} Though if he publicly apologized to Greg, Chris, Dave, myself, and others for (i) his sloppy usage of terminology and (ii) his continual harranging of us all the past few months since our original criticisms were made of the aforesaid sloppiness of prose. And of course, (iii) he would have to do so in a manner at least as prominently as his sloppy terminology was often utilized the past couple of years.

As for us, we would have to accept that at least out of charity if (i) he was truly repentent, (ii) if that apology remained on his site in a prominent place, and (iii) if he made it unmistakably clear after that point by future statements that he was serious in his repentence on the matter.

This would be the only way for Mr. Hand to avoid the Scylla-Charybdis conundrum that he will find himself in on the issue in question viz. giving the yes or no answer that Greg has rightfully requested of him to give.

{4} See footnote one.

{5} There is also the issue of him deleting stuff prior to it moving off of his page too of course.

{6} I visited TCR today on September 25, 2005 for the first time since May in order to gather excerpts for covering this issue.

As was noted earlier, this post was drafted on September 25, 2005; ergo the correction above.

{7} I outlined my reasons for taking the view that I do on the war in late January-early February 2003. The finished product can be read here:

Why Those Who Hold Out For Peaceful Solutions With Iraq Are Wrong (circa February 9, 2003)

In order to not confuse readers on the matter, I felt obligated to weigh in on this matter later on that month in the following words:

For those who read my war position as outlined HERE and wonder how I square it with the pope's stated position against war with Iraq, the following blog will explain it in reasonable detail I hope. To heavily paraphrase Newman on the subject of obedience to the Pope (in this case viz the war issue):

I do not speak as if I had any difficulty in recognizing and condemning the war the Pope speaks about, if the Pope did himself bid me; but he has not as yet done so, and he cannot delegate his Magisterium to another. I wish with St. Jerome to "speak with the Successor of the Fisherman and the Disciple of the Cross." I assent to that which the Pope propounds in faith and morals, but it must be he speaking officially, personally, and immediately, and not any one else, who has a hold over me. The speeches are not official acts, because they are not in any way indicated to be such.

If, indeed, the Pope should ever make a condemnation of this war directly his own, as a part of his Magisterium, then of course I should bow to it and accept it. I should take that condemnation to be of dogmatic authority, because I believe him appointed by his Divine Master to determine in the detail of faith and morals what is true and what is false - what policies are binding and which are loosed by the keys. But such an act of his he would formally authenticate; he would speak in his own name, by Apostolic Letter, Encyclical, or Apostolic Exhortation. Or, if he wished to speak less authoritatively, he would speak through a Sacred Congregation ratifying such judgment as his.

Because he has done none of these things, it cannot be said that he has made his injunctions against the war a part of his Magisterium. Therefore, as much as I do not like to do it, I do not follow him on this because he has not made it clear that he expects me to and because my conscience will not allow me to. [Excerpt from Rerum Novarum (circa February 14, 2003)]

There are many more shades to my outlook on these matters that cannot be done justice in a brief footnote -including a few additional statements made after the war which require assessing to get a better view of my approach to these issues. However, for the sake of not being overlong, I will not note them here though I may follow this posting up in the future with an addendum if this is judged as practical to do (particularly if Mr. Hand actually evinces an interest in genuine dialogue on these issues and not a shouting match).

{8} To outline properly how to properly apply the term "just war" and which authority is responsible for ascertaining and levying such a war, the following bits from a recent post thread should help in clarifying these matters for those of good faith:

[The person in question] seems to have a confusion about these matters since (i) double effect is not required to be sustained by just war criteria since the act in conforming to its intrinsic principles already meets that standard and (ii) a seeming unawareness of what a proper appeal to just war theory actually is. On the latter, I will now briefly touch on so that readers do not think I am merely asserting something without proof...

[I]n medieval times, the term “just war” applied to the authority for levying the war, rather than to the substance of the cause or the complaint. If levied on the authority of an independent prince, the war was considered just, since there was no higher authority to judge the cause, and battle settled the issue. [Encyclopedia Brittanica Fifteenth Edition: Excerpt from War, the Theory and Conduct of Macropaedia Volume XXIX, pg. 643 (c. 1985)]

[The person in question] by trying to apply it to the substance of the cause or the complaint rather than to the authority for levying the war thus misappropriates the principle in no small detail. And lest [they] object to me quoting a non-Catholic source above on the matter, I will now quote from my copy of the Catholic Encyclopaedic Dictionary on the subject of war:

War. War is waged justly if it be initiated by public authority for a sufficiently grave and just reason. Soldiers enlisted before the outbreak of war can take its justness for granted unless the contrary is apparent; after the outbreak, those who join the army must first be morally certain of its justness. In a just war all means are licit which necessary and suitable for carrying the war to a successful end, provided that they are not contrary to natural or international law; e.g. the killing of any man under arms or of spies but not of non-combatants, the laying of ambushes, the destruction, but not the poisoning, of wells, are lawful acts of war. For a war to be just the motive must be the vindication of a certain right, of proportionate importance, which has been certainly violated, or a just intervention to defend the rights of others, and then only when other means of redress have failed. [Catholic Encyclopaedic Dictionary Tenth Edition: Donald Attwater - General Editor pg. 553 (c. 1941)]

The only "public authority" that can initiate a war is a legitimate government; ergo Mr. Hand's constant appeal to the popes on this matter is a refusal on his part to consider where the legitimate authority for this action resides. It does not reside in the pope though the pope can (of course) give his views on the matter. However, strictly speaking, though the pope has competence to set forth moral and ethical principles on the matter to be heeded, he has no competence to assess the relevant data and make the determination on the matter.

{9} See footnote eight.

{10} See footnote two.

{11} See footnote eight.

{12} To quote a brief except on an often overlooked aspect of dialogue from my commentary on its intricacies (all reference numbers are from points of Ecclesiam Suam which I am summarizing briefly in the paragraph below):

Because of the spiritual nature of this relationship between God and man, it is difficult to express this dialogue adequately in words (§71). However, the mystery involved must be examined closely since the Church's role is to foster a similar relationship to the extent that this is possible with the human race (§71). And as God is the initiator of the dialogue of salvation with man -having loved us before all ages- we who are called to bring the Gospel to all nations likewise must seek the dialogue with others without being asked on no other motive than that of love for the other for their own sake (§72-73). And because the love that should involve the dialogue must be grounded in charity, it cannot be based on either the merits of others or potential "gain." For this reason it must not be arbitrarily limited or be sought for our own advantage (§74). [I. Shawn McElhinney: Excerpt from On the Intricacies of Dialogue - A Commentary (c. 2003)]

I have nothing to personally gain from this attempt to dialogue with Stephen. Nonetheless, that does not mean we should fail to try since we are commanded to both by the injunctions of the Gospel as well as by the teaching of Pope Paul VI noted above: and one which his successors have recognized and confirmed in their own right either explicitly (as in John Paul II) or implicitly in their actions as pope (as in John Paul I and thus far Benedict XVI).

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A Minor Rerum Novarum Update:

[This is a continuation of the minor update posted a couple of days ago.-ISM]

Christopher Blosser deserves credit for sending me (at my request) formatting for dealing with the archives and previous postings. As this weblog has grown and more archives were added to the side margin, it ended up taking two pages of side margin scroll (length-wise) to posit over 156 separate weeks. With the new archive scroll feature, I will no longer have to manually update the archives anymore and the side margin was reduced in unnecessary clutter significantly.

Though I hope to shrink the fontage of the postings in the "previous postings" feature soon (for additional space-saving), for the time being, that feature (which lists in the side margin the ten most recent postings) will have to read as it does.{1} Fortunately, I figured out how to space them so that they did not run together as they did when I tested the feature on my private developmental weblog (which today mainly serves as a duplicate template for this weblog.

Anyway, it is to be hoped that the adjustments made in recent days will make it easier for people to navigate the side margin of this weblog as it removed the unnecessary clutter that once existed in the old archive formatting. (Along with about ten articles from the side margin which either became defunct or were no longer applicable for the present circumstances which the previous minor update dealt with.)

All things to the contrary notwithstanding.


{1} [Update: Chris fixed the type size problem by tweaking my template a bit...thanks Chris -ISM 10/06/05 1:45pm]


Wednesday, October 05, 2005

On Physician Assisted Suicide, the Supreme Court, and Original Intent

this is an audio post - click to play

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Tuesday, October 04, 2005

Points to Ponder:
(On the Constitutional View of All Minority Groups)

Although the natural rights inherent in our regime are perfectly adequate to the solution of this problem [of diversity of cultures, traditions, religions, and races], provided that outsiders adhere to them (i.e., they become insiders by adhering to them), this did not satisfy the thinkers who influenced our educators, for the right to vote and other political rights did not automatically produce social acceptance...

For the Founders, minorities are in general bad things, mostly identical to factions, selfish groups who have no concern as such for the common good. Unlike older political thinkers, they entertained no hopes of suppressing factions and educating a united or homogenous citizenry. Instead, they constructed an elaborate machinery to contain factions in such a way that they would cancel one another out and allow for the pursuit of the common good. The good is still the guiding consideration in their thought, although it is arrived at, less directly than in classical political thought, by tolerating faction. The Founders wished to achieve a national majority concerning the fundamental rights and then prevent the majority from using its power to overturn those fundamental rights. In twentieth-century social science, however, the common good disappears and along with it the negative view of minorities.

The very idea of majority—now understood to be selfish interest—is done away with in order to protect the minorities. This breaks the delicate balance between majority and minority in Constitutional thought. In such a perspective, where there is no common good, minorities are no longer problematic, and the protection of them emerges as the central function of government. Where this leads is apparent…[g]roups or individuals who really care, as opposed to those with lukewarm feelings, deserve special attention or special rights for their “intensity” or “commitment,” the new political validation which replaces reason. The Founding Fathers wished to defang fanaticism...

[T]he Constitution does not promise respect for blacks, whites, yellows, Catholics, Protestants, or Jews. It guarantees the protection of the rights of individual human beings. This has not proved to be enough, however, to what is perhaps by now a majority of Americans. [Allan Bloom: From The Closing of the American Mind pg. 30; 31-32; 33-34 (c. 1987)]

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"Tales From the Crypt Mailbag" Dept.
(On the Selection of Harriet Miers for the Supreme Court)

My interlocuter's words will be in black font.

I originally was very wary about John Roberts, but he seemed to handle himself quite well, and he eased my fears when I watched the confirmation hearings. But Miers seems even worse. From the looks of things, she was pre-approved by the Democrats in the Senate.

Dingy Harry spoke well of John Roberts too...and voted against him.

If true that's a dangerous precedent setter of the advise and consent clause, and it gives the libs what they wanted, the right to choose Bush's nominees. So even if she turns out to be good, this could be a bad future precedent.

From the standpoint of not having a debate on judicial precedent, I can agree with that. The debate is needed and it must be in the public forum. Unfortunately, with a nominee like this, I do not see that happening whereas with Jance Rogers Brown it would.

The blatant croneyism also unsettles me a bit. As a president you want to appoint people who will not buck your general worldview, but this president seems to be the worst abuser of the spoils system since Jackson. Of all people I agree with Bill Kristol here, that "Bush flinched"


I do not know enough about her yet to say much. However, I have done some reading of the blogosphere of those whom I like to review for legal issues...meaning the collective at The Volokh Conspiracy and (particularly) the gang over at Southern Appeal. The general sense is that most conservatives are going either nuts or into bouts of depression but that may be because they are hungry for a fight on judicial interpretation (much as we are) and do not see one with this pick. In surveying the gang at SA:

---Feddie initially said he was done with the Republicans over this issue but may have cooled down some since his first posting on the matter.

---Hunter Baker takes a similar approach and points out some additional factors as does Patrick Carver.

---William has some interesting points in his initial thoughts which are worth reflecting particularly the second and third ones he raises.

---Rice says a lot of what I am sure a lot of Republicans are feeling over this one...thank God I am not a Republican because I would be pretty depressed over this one if I had any faith in Bush. And when loyalists like Rice --who claims to have "dedicated thousands and thousands of hours to electing Republicans at all levels" takes this view, it does not look good for base concern about 2006.{1}

---JoelL is very disappointed as well.

---QD expresses a lot of what I am feeling at the moment -though these are initial feelings and I may change them before I blog on the subject with any substantive analysis of my own.

On the other hand:

---Justin has cautioned against too much extremist overreaction and has also noted some glimmers of hope that Miers' may be what we hope from a candidate.

---Verity notes that Leonard Leo supports her for several reasons including these:

As a leader of the bar, Harriet Miers was a fearless and very strong proponent of conservative legal views. She led a campaign to have the American Bar Association end its practice of supporting abortion-on-demand and taxpayer-funded abortions.

In her work respecting the War on Terror and the threats posed to our country by misuse of foreign and international law, Ms. Miers has applied the Constitution as the Framers wrote it.

She was National Co-Chairman of Lawyers for Bush-Cheney in 2000 and helped manage the Bush v. Gore litigation effort.

She has shown a commitment to advancing the rule of law through her participation in activities of the Federalist Society, the American Tort Reform Association, and other legal organizations.

---As Rice notes in addition to his previous thoughts on the matter, there are conservative persons and groups arguing for her at this stage -some of whom are IMHO fairly reliable.

---Captain Ed from Captain's Quarters is not taking a position one way or the other that I can tell: which is in my opinion wise at this point.

Basically, I am going to take a few days or so before blogging much on the matter. I want to digest a lot of what is noted above as well as Bryan Preston's recent bits at the JYB which also bear consideration{2} and not only because he and Miers are native Texans.

I have a lot to look over before writing on this matter with any detail but in brief: I think this is sink or swim time and if Miers gets confirmed and does not pan in the short run, I predict a Democratic sweep of both houses in 2006. So my initial assessments are not favourable to this pick{3} but I do not know enough about her yet.

One thing I have learned is that she has spent some time working in DC so the concern about her going into DC to be corrupted by the beltway mentality does not seem significant to me. But it is too early...let the others take the arrows of extremities one way or the other first so that when we write on the matter, we benefit from being on surer ground than many of those who are commenting at this early a stage. Remember the McElhinney Media Dictum and apply it to this situation as with any other. Then of course there is the issue of being "newsbreakers" or being "substantial commentators on issues" and with that in mind, I remind you of this weblog posting from over two years ago:

For my part, being ahead of the curve in my commentary on issues is a delicacy kinda like a pre-Castro Montecristo or a bottle of Chateau '61 - though not that rare of course...But anyway, this is a delicacy my friends, an exception to our normal protocol.

That is correct gentle readers, you read just what you thought you did. While many blogs may claim to be the next "Woodward and Bernstein", We at Rerum Novarum are not among them. For you see, We prefer to generally let others take the bounding steps forward to be skewered by arrows - for reasons explained HERE. Essentially this normative policy means that we can sit back, watch others drop with arrows sticking out of every orifice, and solemnly intone a "there are Indians that way" proclamation.[...]

The benefits are (i) there is greater longevity (ii) it allows for better overall musings (iii) we seldom err in our predictions and (iv) I cannot think of a fourth or subsequent advantage offhand but I may update this post later on and add more of them at that time :) [Excerpt from Rerum Novarum (circa August 28, 2003)]

Hence, as is my modus opperandi, I will wait a while before writing on this subject with any detail -after the more excitable elements pro and con of this choice have had a chance to cool down and get over the initial reactions over the pick.

For a continuation of this subject matter, see the thread located HERE.


{1} XXXX may remember our phone conversation on this -an outline of which I blogged back in June.

{2} Bryan Preston's initial reaction was one of disappointment -as one who similarly had that as an initial reaction, I can sympathize. The whole "she gave to Democrats" thing is absurd as anyone who knows Texas politics knows (see my DeLay posting where I touch on this viz. Ronnie Earle) so do not read too much into that -though many Republicans unfortunately will.

Bryan's followup analysis is even better and I recommend it as well -simply speaking, I could not have done better in summarizing the various threads on this nomination and the irritating features of Bush as well as Bryan does in that posting.

And of course a reminder of Democrats who became Republicans does not hurt at this stage either and Bryan provides it.

{3} Furthermore, Bush is again not taking the proper strategery on these issues...too much poker tactic and not enough chess as I see it. I could handle it with Roberts because we at least knew something about him whereas with Miers we know nothing and that is somewhat unsettling to put it mildly.

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