Bad Idea: A Constitutional Convention

A lot of people propose creating a constitutional convention to "fix" the problems in our current Constitution. For some reason, conservatives seem to be big fans, perhaps because they think Republican control of most state legislatures gives them an edge. But anyone familiar with the history of the original document would tell you that this is a really, really bad idea.

The commission of the original Constitutional Convention was to propose amendments to the Articles of Confederation. Although they were not authorized to do so, the Framers decided not to amend it, but to replace it. Could a modern Constitutional Convention do the same thing? Yes.

Technically, the Articles of Confederation could not be amended without the consent of each and every state in the United States. If the Constitution was an amending document, it was illegal. This was well-known at the time. The Constitution itself was produced in strictest secrecy during the Philadelphia convention. When the Congress that had commissioned the work, the Congress of the Articles of Confederation, found out what the Framers had done, they considered censuring the delegates for having both failed to do their job and for violating the law.

Instead, like many legislators today, they decided to punt. Not only was no one prosecuted, the Congress kicked the whole thing back to state conventions.

Now, the Articles of Confederation called for unanimous consent. But that rule was thrown out and replaced by "nine of thirteen." Today, those in favor of a convention argue that 37 states must pass any changes. Well, maybe. But maybe not. If the last Constitutional Convention could throw out the requirement for unanimity, what on earth prevents the next one from throwing out the requirement for 37 out of 50 states? Why not just a bare majority? Or perhaps discard the need for states at all, and go to passage by a certain number of large (as some arbitrary person defines "large") cities? After all, why should the state of Montana (entire population: 1.02 million) have more say then the city of Los Angeles (population 18.55 million)?

The Constitution was a document of bloodless revolution — it overthrew the confederation with a federation, and everyone knew it. That is precisely why the Constitution calls for ratification by only nine of the thirteen states. Why nine? Because the Framers didn't think they could get all thirteen to pass it. Federalist #40 deals with the problem of the legality of "nine vs. unanimous" by simply refusing to discuss the problem at all. The legal problem is acknowledged, then explicitly dismissed with a wave of the hand. In fact, Federalist #40 ends not by an appeal to the legality of the Constitution (which was impossible to support), but by appealing to the idea that the Constitution is good advice! Talk about a hopeless non sequitor.

And remember what Congress did? They kicked it to state conventions. In order to keep state legislatures from adding on their own amendments, the state legislators and their legislatures were entirely cut out of the process. Instead, special state conventions voted on whether or not to approve it.

The first state to ratify was Delaware, on December 7, 1787. On June 21, 1788, New Hampshire became the ninth state to ratify and the Confederation Congress set the new Constitution's operational date as March 4, 1789, but that left four states out in the cold. Virginia and New York ratified it by July of 1788, but the remaining two did not ratify it before it became operational.

The Constitution was essentially imposed on North Carolina, which didn't ratify until November 21, 1789, and on Rhode Island. In fact, the last state, Rhode Island, didn't ratify it until May 29, 1790. By the time Rhode Island finally made it unanimous, the first Congress had already been in session for over a year (convened March 4, 1789, didn't release until March 4, 1791) and George Washington had already been President for over a year. In other words, at least two of the four states named above were forced to go along with a document, the Constitution, that even their own state conventions didn't approve. If this is a model for the interaction between states' rights and federal power, you can see who wins very early on.

If we look at it from the point of view of the Articles of Confederation, by September 13, 1788, eleven states had illegally seceded from the Articles. If North Carolina and Rhode Island would have had the military capacity, they could legally have declared this a rebellion and forced the eleven ratifying states back into the Articles of Confederation in exactly the same way Lincoln forced the Southern States back into the Constitution eighty years later.

Now, with this in mind, consider what the map of state legislatures looks like today:

Does anyone think today's process would run any smoother? Can we afford a couple of years of political anarchy while we try to get everything squared away with a new Constitution? Because anyone who thinks we won't get an entirely new Constitution, along with a whole new set of rights (which may or may not reflect any of our current rights), really isn't paying attention.

What makes you think a new Article V convention would treat the Constitution with any more respect than the the original convention treated the old Articles of Confederation?

We already have a political elite who argue that the Constitution is not a good structure for America nor a good model for new democracies in the 21st century. This same political elite controls the media and a lot of the political processes, they control the colleges and universities from which "expert" advisors will be drawn.

These are the people that got Obama elected.
Twice.
What makes you think we could stop them at a convention?

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Why do you need my referral?
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If you prefer, just sign yourself up on your own.

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Thus endeth the plug.

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Nullification: An American Tradition

There are people who get upset because juries have the ability, nay the right, to refuse to convict someone of the violation of a law if that jury decides the law is stupid. This fact drives prosecutors crazy. Judges insist it isn't legal, although in practice, there is very little they can do about it. It is called "jury nullification" and any jury in the United States can do it.

John Adams didn’t mince words about the jury’s purpose in 1771 when he said “it is not only [a juror’s] right, but his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

Similarly, states can not only refuse to enforce federal laws, states can even pass laws that directly contradict or overturn federal law. The feds can yammer all they want, but unless they want to send in troops, the feds can't do much to prevent it. This is also "nullification". It is in complete accordance with the Constitution via the Bill of Rights, Tenth Amendment. As even SCOTUS justices admit, there is absolutely nothing in any of the above ideas which violates the principles laid down by the Founding Fathers.

"The approach is on sound legal footing, with notable Supreme Court opinions backing the view that the federal government cannot require a state to expend manpower or resources in the enforcement of a federal act. The 1997 case, Printz v. US serves as the cornerstone. In it, Justice Scalia held:

'The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.' "

We have been doing this for 200 years. Whenever there is a law people don't like, they just don't enforce it (the legal term is "desuetude"). Thus, even though someone technically SHOULD be arrested, no one actually DOES get arrested when a woman wears pants in Tuscon. 

Look, we don't actually live in a nation of laws. That ended forty years ago, when we started killing babies and selling their parts. Anymore, we just pretend. Any citizen, any jury member, any state, can do whatever s/he/it likes, and apart from starting a civil war, no one can do anything about it.

So, when people tell us we have to follow an immoral federal law, we can laugh in their faces. Screw the Feds. They stopped working for us a long, long time ago.

How Excommunication Works

Question: How does excommunication work?

Based on the words of Christ Who said what is bound on earth is bound in heaven and what is loosed on earth is loosed in heaven in regards to the "keys" of the Church:

If you are validly excommunicated (note that sometimes an excommunication is invalid, e.g., St. Joan of Arc) and you do not have the censure lifted or at least form the intent to reform or muster the requisite contrition for the delict, and die while in the state of excommunication, then, you do, in fact, show up to the particular judgment, excommunicated. In this sense, the Church does have jurisdiction, at least as far as Christ will uphold the adjudication.

I was recently told by an expert in canon law that the Church does not have jurisdiction in the next life. He said this in reference to my assertion that an excommunication would necessarily follower the sinner in the next life if not rectified.

Answer: 
The theologian is obviously Lutheran, because the idea that the Church does not have jurisdiction in the next life constituted the central error in Martin Luther's 95 Theses.

That having been said, excommunication is a juridical ruling about participation in the temporal life of the Church (i.e., the individual is barred from participation in most sacraments). Now, certainly, this lack of access to sacramental grace may also redound to eternal life, but God also might, in his infinite knowledge and mercy, take into account aspects of the situation which the Church, in her finite knowledge, is unable to consider.

Thus, excommunication is not a guarantee that the person excommunicated is absolutely cut off from heaven. Excommunication is objectively something to be avoided, but subjectively we cannot be sure the excommunicated person is in hell - only God and the individual who has died has absolute surety of how that person's eternal existence will be spent.

Excommunication means that, from an external viewpoint, the Church judges that the individual has distanced himself from God so effectively that he may well be damning himself to hell.

But the Church's judgement is not a judgement of the actual state of the individual's soul. It is merely a judgement about all that the Church knows about the person's public disposition. It is a judgement about the external, public factors. There may well be internal aspects of which the Church knows nothing, and the Church's judgement does not presume to include those aspects.

Further Question:
But what if the application of the penalty was subjectively in play, that is, total and utter culpability? What do we make of the Lord's words that what is bound on earth is bound in heaven? If the Lord discounts the censure in the next life, then would we not deduce that the Church's power to excommunicate expires at the death of the subject who labors under the penalty?

Deeper Answer:
Not at all.

The Church absolutely has power over the next life. That's what the doctrine of indulgences is all about. It's just that She chooses not to exercise it to condemn anyone to hell, for even God Himself does not condemn sinners, rather, the sinners condemn themselves.

Christ came into the world to save it, not to condemn it. The Church, as the Bride of Christ, imitates Her Spouse by using Her power (which comes from Christ) to do Christ's work - to save the world, not to condemn it.

Christ is Judge, but has not yet returned as Judge, so it is not the Church's role to negatively judge anyone's soul. Yet.

Guns in the Constitution

A lot of people don't like the Second Amendment to the Constitution. They argue that if the Second Amendment really means what it says, private citizens should be able to own tanks. That is clearly absurd.

Except it isn't.

Most people, even many pro-gun people, don't realize the Constitution does say precisely that. Keep in mind that George Washington used artillery that was loaned to the Revolutionary Army by private citizens in the colonies. Many towns had artillery clubs, wherein the members maintained pieces of artillery. Plantations bought cannons in order to protect their property from Indian attack. Ship owners bought muskets and cannon to protect their ships from pirates. Many of these private citizens loaned their pieces to Washington under the proviso that they would be returned when the war was over - which they were, insofar as was possible.

George Washington was our first President. When we think "George Washington," we think "government", but that's not correct. The American Revolution and its Washington-led army was really just a bunch of armed citizens. These citizens were running around with the deadliest weapons produced at the time, weapons they purchased themselves, and all of these private citizens were shooting at government employees. That's the American Revolution.

That's the mind-set one has to have to read the Constitution correctly.  We have to remember: from the Founding Fathers' perspective, armed citizens shooting at government employees was fine.

And, we should also notice that private ownership of weapons is not just a 2nd Amendment right - it is also in the body of the Constitution.

Article 1, Section 8: [The Congress shall have the power] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

A "Letter of Marque" was a contract between a private citizen and the government that authorized private ship owners to use their ships to capture shipping from the enemy. A Letter of Marque allowed a private ship to act as a warship. Without the Letter of Marque, the ship owner would just be a pirate. With the Letter of Marque, he (and his ship) became a mercenary for whatever government he contracted with.

But the Letter of Marque did not equip the ship - that was done at the owner's expense. Most ships at the time carried some kind of defensive cannon and musketry for protection against pirates and mercenaries. The ships were already armed. The Letter of Marque simply protected the ship in case of capture, assuring the captain and crew that they couldn't be hung as pirates. As for terms, the letter would primarily describe how the profit from successfully capturing an enemy ship was to be split between the government and the contracting ship owner. The Letter of Marque was really just a government rental agreement for the use of a privately-owned warship.

Why would the US Constitution do this? Because the Founding Fathers wanted the central government so weak that the governement couldn't even keep a standing army or navy. The Continental Army and Navy were both disbanded as soon as the Revolutionary War ended. Thus, the Constitution was ratified in 1789, but the Department of the Navy was not created until 1798, in order to combat Muslim Barbary pirates. For the first decade, the Congress expected they wouldn't need a standing Navy. Letters of Marque, government rentals of private warships (at least 2200 private warships were issued such letters), were supposed to take care of that need. Indeed, as late as July, 1815, Thomas Jefferson issued a Letter of Marque to the Grand Turk, authorizing the Grand Turk to operate against the Barbary Pirates on America's behalf. Although the United States government gave up issuing Letters by 1856, it continued to honor the Letters of Marque issued by the Confederacy during the Civil War.

But, in order for the Letter of Marque to even be listed as a possibility in the Constitution, the Constitution has to assume that private citizens had already bought and were already using the most powerful weaponry then available: fully-equipped warships. Put bluntly, Article I of the Constitution shows that the Founders originally intended to rent military power from private citizens. A similar agreement today might have a civilian purchase a tank, F-16 or nuke, and then rent the use of these weapons out to the US government. The Second Amendment has to be read within the context of the full Constitution and the full intent of the Founding Fathers. Once it is, there is no question about every citizen's rights.

Mary Did You Know???

Some Catholics are concerned about the blog post of a Jesuit priest which lambastes a Protestant Marian song because it supposedly contains heresy concerning the Immaculate Conception. 

While the song has the merits of prompting its hearers to reflect on Mary beholding her Divine Son, lines from the very first stanza actually bring Christmas to a screeching halt. Here are the problematic lyrics: 

“Did you know that your Baby Boy has come to make you new? This Child that you delivered will soon deliver you.” 

Now, those lines make sense if Mary is another sinner just like us, who needs to be delivered from sin. You see, if Mary is a sinner who like us needs a savior, then the lyricist’s play on the word “deliver” (sense 1: “deliver” = “give birth”; sense 2: “deliver” = “liberate from sin”) is both clever and theologically sound. But if Mary is a sinner in need of a savior, then she cannot be the worthy vessel in whom the All-Holy God takes on human nature as the Word-Made-Flesh. In other words the lyrics depend upon the dogma of the Immaculate Conception being false. If Mary needs a Savior, then she cannot be the vessel of the Incarnation.

God bless the priest, but he apparently doesn't know the theology behind the Immaculate Conception. Specifically, he seems to be completely unaware of Duns Scotus' completely acceptable argument supporting the IC, an argument which employs precisely the logic the priest attacks in order to explain the event.

Duns Scotus pushed this obstruction from the path by showing that instead of being excluded from the redemption of the Savior, Mary obtained the greatest of redemptions through the mystery of her preservation from all sin. This, explained Scotus, was a more perfect redemption and attributes to Christ a more exalted role as Redeemer, because redeeming grace, which preserves from original sin, is greater than that which purifies from sin already incurred. 

Consequently, Christ was Mary's Redeemer more perfectly by preservative redemption in shielding her from original sin through anticipating and foreseeing the merits of his passion and death. (emphasis added) This preredemption indicates a much greater grace and more perfect salvation.

But, isn't there something wrong with saying "This child that you delivered will soon deliver you"? No, not really. After all, the Cross exists both in time and in eternity. The Cross saves everyone, including Mary. From the temporal (in-time) standpoint, at the moment of the birth, Christ had not yet died on the Cross, so we can say "will soon deliver you." From the viewpoint of the Cross, which is eternal, it would also be equally accurate to say "has delivered you." But, since it is a Christmas hymn, there is no reason to balk at the future tense.

In fact, as Scotus and many others have pointed out, the sanctification of the Cross was anticipated for John the Baptist in a very similar (although not identical) way:

Hence the axiom of Pseudo-Anselmus (Eadmer) developed by Duns Scotus, Decuit, potuit, ergo fecit, it was becoming that the Mother of the Redeemer should have been free from the power of sin and Satan from the first moment of her existence (decuit); God could give her this privilege (potuit), therefore He gave it to her (ergo fecit). Again it is remarked that a peculiar privilege was granted to the prophet Jeremias and to St. John the Baptist. They were sanctified in their mother's womb, because by their preaching they had a special share in the work of preparing the way for Christ.

Indeed, if the good priest wishes to take issue with a Marian hymn that endorses heresy, he could do a much better job by attacking an Anglican hymn from 1914 which is considered a modern classic of Mariology, sung in Catholic parishes across the nation: Sing of Mary.

"Sing of Mary, pure and lowly,
Virgin Mother undefiled.
Sing of God's own Son Most Holy
Who became her little child
Fairest child of fairest mother
God the Son who came to Earth
Word made flesh, our very brother
Takes our nature by His conception."

Oh wow - that doesn't rhyme.

Guess we'll make it "takes our nature by His birth" even though that's completely erroneous and actually promotes the Nestorian heresy, the idea that the Divine Nature united Himself to a pre-existing human person.

As we can now see, the lyrics to Mary Did You Know are actually much more defensible than, say, those in Sing of Mary. So why is the priest so upset about the first, but absolutely silent on the second? Well, first, he doesn't really know the theology behind the IC very well. Second, the song under discussion is popular and written by a Protestant and everyone knows it is written by a Protestant, so it MUST be declared bad, while the second is written by a Protestant, but Catholics have long since forgotten that, and it isn't part of popular culture, and we have used it at Mass for a century, so ... it's fine.

At least, those are the only reasons I can come up with.
Personally, I think we should be thanking any Protestant who writes a Marian hymn, even if that hymn were as theologically unsound as Sing of Mary. After all, they need something to sing while they are engaged in Catholic idol worship around statues of the Nativity.

Lessons from the Planned Parenthood Shooting

Seen on the web:

"What I've learned seeing the recent flood of left wing posts about the planned parenthood shooting:

• Suddenly religion and ideology are directly to blame for terrorism rather than climate change.
• Motives matter.
• No attempt to rationalize or begin a dialogue about "root causes", including what PP might have done to provoke the shooter.
• Once again, it was inspired by a video.
• The same people who've spent months, if not years, inciting violence against police nationwide are now really, really upset that an officer has been killed."      

-Anonymous