Wednesday, September 18, 2013
Excudent alii spirantia mollius aera,
(credo equidem), vivos ducent de marmore voltus;
orabunt causas melius, caelique meatus
describent radio et surgentia sidera dicent:
tu regere imperio populous, Romane, memento
(hae tibi erunt artes) pacique imponere morem,
parcere subiectis et debellare superbos.
When I was a kid, these lines were an ending of sorts. We read them in 11th grade Latin, at year's end,
and they represented the culmination of the first half of the Aeneid. True, several of us continued on to read Books 7-12 in our senior year, but the second half is something of a long walk down the hill (and I always had a soft spot for Turnus and couldn't get too excited about his defeat). It's this section of Book VI (lines 847-853)--in which the ghost of father Anchises discloses to Aeneas what the special arts and excellences of the Roman are to be--that was the peak moment. It was satisfying to us not only as an explanation for all of the trouble that the hero of the story seemed to be taking and enduring but also as an inspiring affirmation of political virtue and the excellence of civic governance writ large: to impose the habit of peace, to spare (or, one might say, to tolerate) the subjugated, and to tame the proud!
It is really quite unnecessary to study "politics" as a discrete subject in high school, or even in college, since the study of abstract political ideologies is often simply a truncated version of the study of the political tradition and heritage of a particular society. And if you want to learn about the "political theory" of an empire that continued to think itself deeply committed to its republican past, you can find it all in Vergil. Other people, he says, might make pretty arts and crafts, but this is what you want from your politics.
These lines came back to me as I read some of the Preface of Book I of the City of God, in which
Augustine notes the obstacles that he faces in laying out the aim of the work.
For I am aware what ability is requisite to persuade the proud how great is the virtue of humility, which raises us, not by a quite human arrogance, but by a divine grace, above all earthly dignities that totter on this shifting scene. For the King and Founder of this city of which we speak, has in Scripture uttered to His people a dictum of the divine law in these words: "God resisteth the proud but giveth grace unto the humble." But this, which is God's prerogative, the inflated ambition of a proud spirit also affects, and dearly loves that this be numbered among its attributes, to "Show pity to the humbled soul,/ And crush the sons of pride." And therefore, as the plan of this work we have undertaken requires, and as the occasion offers, we must speak also of the earthly city, which, though it be mistress of the nations, is itself ruled by its lust of rule.
Book I is, in fact, loaded with Vergil; Vergil's poetry itself illustrates the excellence of the City of Man. Later in Book I, it is almost as if Augustine is speaking to the hundreds upon hundreds of generations of young Latin students to come: "There is Vergil, who is read by boys, in order that this great poet, this most famous and approved of all poets, may impregnate their virgin minds, and may not readily be forgotten by them," after which he proceeds to engage in some close textual reading of and interlocution with Vergil. All of this, of course, is meant to counter the claims of those who argued that the Romans got what was coming to them by abandoning the Roman gods and embracing Christ (those that embraced him, that is). And as for "parcere subiectis," Augustine argues that, in fact, the Romans did no such thing. To the contrary: "[A]mong so many and great cities which they have stormed, taken, and overthrown for the extension of their dominion, let us be told what temples they were accustomed to exempt, so that whoever took refuge in them was free." I.6. In this book, then, Augustine punctures the Vergilian rhetoric of the Augustan age extremely effectively--"[a]ll the spoiling, then, which Rome was exposed to in the recent calamity--all the slaughter, plundering, burning, and misery--was the result of the [Roman] custom of war." I.7. What was novel, and what showed itself in the comparatively gentle behavior of the barbarians, was truly to spare the subjugated who (whether godly or not, whether deserving--by man's lights--or not) sought sanctuary in the Christian "temples."
The eminent Augustine scholar R.A. Markus puts it this way in his magisterial volume, Saeculum: History and Society in the Theology of St. Augustine:
In Augustine's mature view the radical vice of Greek philosophy as of Roman political ideology was the belief in the possibility...of perfection through the polis or the civitas. 'God resists the proud, but to the humble He giveth grace': the scriptural sentence quoted at the opening of the City of God was to Augustine's mind the most fundamental comment on classical pretensions to human self-determination, as expressed in Vergil's line, quoted in dramatic juxtaposition, on the historic mission of Rome....Here is Augustine's final answer to the illusion of a teleiosis through rational and human means; and it is the more poignant for being a repudiation of a heritage which, as we have seen, had some power over his mind in his youth. (84)
And not only over Augustine's mind! The political program, and the power, of Rome is beguiling and attractive indeed. It holds enduring appeal to young people--as it did for me and my friends in high school, and as it still does. There are, I suppose, several reasons that one reads Vergil rather than Augustine in high school (to the extent that either is read at all in high school). But one of them, perhaps the most important, is that the excellence of the City of Man is so easy and approachable (as texts millennia old go), while the excellence of the City of God is so distant and so difficult. The excellence of humility is so much harder to appreciate and embrace than the excellence of dominion--especially, it seems to me, for the young. The excellence of the City of God holds little of the immediate and prepossessing appeal of the splendors of Rome.
But perhaps a little Augustine in the relatively early educational years, as a counterpoint to Vergil, might cast politics in a mellower light for the rising generations.
Tuesday, September 17, 2013
Today, September 17, is Constitution Day. I think that the Constitution is worth celebrating, but I also worry that this "holiday" feeds into a problematic understanding of the Constitution as sacred. The Constitution is our fundamental law, but it is positive law; it is not sacred. Yet the idea that the Constitution is sacred is taken seriously enough that the Casey plurality, for example, concludes its opinion using quasi-theological "covenant" terminology:
Our Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession. Each generation must learn anew that the Constitution's written terms embody ideas and aspirations that must survive more ages than one. We accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of all of our precedents. We invoke it once again to define the freedom guaranteed by the Constitution's own promise, the promise of liberty.
The idea of the Constitution as a covenant is not inherently problematic, but it is when used to prop up the authority of a Supreme Court that serves as what Steven Smith has described as an anti-Magisterium. Smith's description of the "aggressively Catholic and radically Protestant" self-understanding of the Supreme Court is worth pondering this Constitution Day. Near the conclusion of his paper, The Supreme Court as (Anti)Magisterium, he writes:
We might say, then, that the Casey Joint Opinion was both aggressively Catholic and radically Protestant in its presentation of itself, the nation-church, and the constitutional orthodoxy. The opinion contemplates a nation that is institutionally Catholic--in which one institutional body (namely, the Supreme Court) has ultimate authority to say what is orthodox and what is not. Indeed, the fact that some citizens have been so obstreperous--so faithless, really--as to question that authority, or at least to question the correctness of the Court's past pronouncements, is cited as an additional reason for the Court to stand firm in maintaining what it has previously said, lest its monopoly on the orthodoxy-declaring prerogative come to seem vulnerable, and lest those who have trusted in the Court should have their tender faith betrayed. But the substantive content of the orthodoxy declared by the Court holds that on the most central questions, nobody--nobody in government, at least--gets to tell us what is orthodox; like it or not, we each must figure that out for ourselves.
Smith goes on to question whether it is really possible to separate "ecclesiology and substantive doctrine" in this way. He asserts that "[i]nsofar as we are skeptical about the separation, the Catholic-Protestant conflation of Casey will seem not a hybrid but rather a mongrel--a monster, perhaps. And the Court's attempt to seize the role of (anti-)magisterium will seem destined to promote not legitimacy and unity but rather confusion, resentment, and the very fragmentation that a magisterium is supposed to avoid."
Following up on Tom's post about the Democrats for Life brief and Michael's post about the McConnell/Inazu/CLS et al. brief, see here for another amici curiae brief in support of petitioners in McCullen v. Coakley. This one is filed on behalf of several First Amendment scholars: Eugene Volokh, Rick Garnett, Michael Stokes Paulsen, Timothy Zick, William E. Lee, Alan Chen, and Ronald J. Krotoszynski, Jr. The brief highlights the depth and breadth of academic criticism of Hill v. Colorado. The brief's signatories have different views on the Supreme Court's abortion jurisprudence but agree on the importance of the First Amendment principles at stake in the case. Special thanks to Matthew Fitzgerald of McGuireWoods for taking the pen and for serving as counsel of record.
The table of contents for the brief provides a sense of the arguments:
I. EVEN STRONG SUPPORTERS OF ABORTION RIGHTS
FAVORED FREE SPEECH IN HILL v. COLORADO................... 6
A. Hill’s content-neutrality holding disagreed with the ACLU
and drew immediate criticism from leading liberal scholars.............................. 8
B. Hill’s focus on protecting the unwilling listener was also widely
doubted and criticized............................ 12
II. THE LOGIC OF HILL OPENED THE DOOR TO
THE MORE RESTRICTIVE MASSACHUSETTS LAW HERE ................... 14
A. In the wake of Hill, scholars predicted trouble such as this
ahead. ..................................................... 14
B. The courts have slid directly down
Hill to McCullen..................................... 15
CONCLUSION ........................................................ 21
The great saint, Jesuit cardinal, and doctor of the Church Robert Bellarmine died on this date in 1621. This gives me another opportunity to commend the work of the terrifically talented Stefania Tutino, including her book on Bellarmine's political theory, Empire of Souls: Robert Bellarmine and the Christian Commonwealth (Oxford, 2010), and her edited collection of primary sources from Liberty Fund. Here's a bit from Stefania's conclusion to the chapter on Bellarmine and the "potestas indirecta":
Bellarmine followed the neo-Thomist doctrine of differentiating sharply between the natural power of the sovereign and the supernatural power of the pope, and indeed he grounded his view of the pope's empire of souls precisely on the unique, incommensurable, and supreme character of the pope's spiritual authority over both the Church and the Christian temporal commonwealths. This move, however, did not remove the seed of constitutionalism when it came to secular government, or, better, it weakened the authority of the sovereign with respect to the authority of the pope while at the same time granting to the temporal authority an autonomous space with respect to the authority of the Christian Church....
What this paradox highlights, I argue, is just how relevant Bellarmine's theory was in the political discourse of early modern Europe, precisely because it was engineered to safeguard and preserve the pope's spiritual primacy against both the Protestants and the authority of early modern monarchies. The significance of this issue transcends the question of the constitutionalist elements embedded in Bellarmine's and other neo-Thomists' doctrine: in a sense, in fact, precisely because Bellarmine's potestas indirecta was meant to oppose the supernatural and supernational empire of souls of the pope to the national and "natural" jurisdiction of the king, it became a fundamental springboard to rethink the secular arguments and foundations of constitutionalism and absolutism. 209-10.
