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"That is something, but it is not enough. The Americans who served, suffered and died in Iraq--"

"---changed the world and won a great and a difficult victory. No account of their service, no commemoration of the dead that ignores or conceals this vital truth is enough."

Walter Russell Mead, via Michael Totten, on the victory in Iraq. Read the whole thing, and discuss. There is a bit of pro-war and pro-Bush bias in here, but the essential truth he lays out is solid--that despite the prophecies, predictions, and rigid declarations of a great many war critics, it's safe to say that victory, for all intents and purposes, has been achieved.

"It should not be surprising that the two dissents have sharply different views on how to read the statute"—

"That is the sort of thing that can happen when statutory analysis is so untethered from the text." A stinging remark from the Chief's opinion in Chamber v. Whiting.

Barnes v. Indiana

I've written two posts about the Indiana Supreme Court's decision in Barnes v. Indiana, a case involving remedies for violations of Fourth Amendment rights, here and here. This will be the last for a while, I promise; it's just to say that I have posted a paper on SSRN (a heavily-annotated version of a letter to the editor, actually) discussing the case and outlining the context that the majority failed to discuss.

From our Mars desk


This really was painful to watch.

Geez-a-whiz, there really is no way to clean that up. I can't imagine what he must've been thinking afterwards.

Pawlenty's argument is simple:

"It's simply a terrible mistake to reduce a nominee to their small acts of meanness, real or imagined."

"Because we are all of us mean."

Dahlia Lithwick, on the full-scale hypocrisy on display in the filbuster of Goodwin Liu.

That isn't a defense of ever-more-toxic personal attacks. It's a defense of the proposition that the measure of one's entire judicial temperament cannot be reduced to a single gotcha footnote in an article, or a single provocative sentence in a speech. Those are only "extraordinary circumstances" in the life of someone who has spent their whole public life sitting in a cave watching cartoons. And if that seems like a radical idea, I would remind you that it's precisely the proposition that the Gang of 14 ostensibly agreed to back in 2005.

Read the whole thing.

The novelty factor in Barnes

Some of the responses to Barnes v. Indiana—my previous post is here—implies a belief that the case's elimination of the common law "right to resist" is novel. It isn't.

In 1997, the Supreme Court of Washington junked the right to resist, save for "resist[ing] an attempt to inflict injury on him or her during the course of an arrest" after a lengthy and persuasive examiniation of the right's history that mirrors the more cursorary treatment of the INSC. Washington v. Valentine, 132 Wash.2d 1, 21, 935 P.2d 1294, 1304 (1997); see also id., 935 P.2d, at 1298 n.6 (noting that between 1957 and 1978, Iowa, California, and Florida abolished the right to resist, either by statute or common law).

The same year, prompted by Valentine, Andrew Wright surveyed the jurisdictions which had then abolished the right to resist:

The following states have enacted statutes eliminating the right: Ark. Code Ann. § 5-54-103 (Michie 1993); Colo. Rev. Stat. Ann. § 18-8-103 (West 1986); Conn. Gen. Stat. Ann. § 53a-23 (West 1994); Del. Code Ann. tit. 11, § 464(d) (1995); Fla. Stat. Ann. § 776.051 (West 1992); Haw. Rev. Stat. Ann. § 710-1026 (Michie 1993); 720 Ill. Comp. Stat. Ann. 5/7-7 (West 1993); Iowa Code § 804.12 (1997); Kan. Stat. Ann. § 21-3217 (1995); Ky. Rev. Stat. Ann. § 520.090 (Michie 1990); Mont. Code Ann. § 45-3-108 (1997); Neb. Rev. Stat. Ann. § 28-1409(3) (Michie 1995); N.H. Rev. Stat. Ann. § 594:5 (1986); N.Y. Penal Law § 35.27 (McKinney 1998); N.D. Cent. Code § 12.1-05-03 (1997); Or. Rev. Stat. § 161.260 (1995); 18 Pa. Cons. Stat. Ann. § 505(b)(1)(i) (West 1983); R.I. Gen. Laws § 12-7-10 (1994); S.D. Codified Laws § 22-11-5 (Michie 1988); Tex. Penal Code Ann. § 38.03 (West 1994). Judicial decisions in the following states have also eliminated the right: Miller v. State, 462 P.2d 421, 427 (Alaska 1969); State v. Hatton, 568 P.2d 1040, 1046 (Ariz. 1977); Evans v. City of Bakersfield, 27 Cal. Rptr. 2d 406, 409 (Ct. App. 1994); State v. Richardson, 511 P.2d 263, 268 (Idaho 1973); Casselman v. State, 472 N.E.2d 1310, 1317 (Ind. Ct. App. 1985); State v. Austin, 381 A.2d 652, 654-55 (Me. 1978); Commonwealth v. Moreira, 447 N.E.2d 1224, 1227 (Mass. 1983); State v. Wick, 331 N.W.2d 769, 771 (Minn. 1983); State v. Nunes, 546 S.W.2d 759, 762 (Mo. Ct. App. 1977); State v. Koonce, 214 A.2d at 433; State v. Doe, 583 P.2d 464, 467 (N.M. 1978); City of Columbus v. Fraley, 324 N.E.2d 735, 740 (Ohio 1975); State v. Gardiner, 814 P.2d 568, 576 (Utah 1991); State v. Peters, 450 A.2d 332, 335 (Vt. 1982); State v. Valentine, 935 P.2d 1294, 1304 (Wash. 1997); Roberts v. State, 711 P.2d 1131, 1134 (Wyo. 1985).

Resisting Unlawful Arrest, 46 Drake L. Rev. 383, 388 n.6. Since then, more have followed suit. Without meaning to be comprehensive, here are just a few low-hanging fruit from a Westlaw search:

  • In 2003, the Supreme Court of Connecticut preserved the right to resist, but squeezed it all-but out of existence: "the common-law privilege to challenge an unlawful entry into one's home still exists to the extent that a person's conduct does not rise to the level of a crime." Connecticut v. Brocuglio, 264 Conn. 778, 794, 826 A.2d 145, 155 (Conn. 2003). But the court noted how limited the scope of the surviving rule is: Connecticut has a statute that makes it a crime to "interfer[e] with an officer … [by] obstruct[ing], resist[ing], hinder[ing] or endanger[ing] any peace officer, special policeman[,] … or firefighter in the performance of [their] duties." C.G.S.A. § 53a-167a. Similarly, while the Supreme Court of Virginia declined to eliminate the rule in Commonwealth v. Hill, 264 Va. 541, 570 S.E. 2d 805 (2002), it restricted it to true arrests, refusing to extend it to detentions (i.e. Terry stops).
  • In 2004, Michigan "adopt[ed] the modern rule that a person may not use force to resist an arrest made by one he knows or has reason to know is performing his duties regardless of whether the arrest is illegal under the circumstances of the occasion." People v. Ventura, 262 Mich.App. 370, 377, 686 N.W.2d 751, 751 (Mich.App.,2004.) (rev. denied 471 Mich. 927); see also id., 686 N.W.2d, at 751 (“Courts and legislatures in other jurisdictions have found the right to resist an unlawful arrest to be outmoded in our contemporary society” (quoting People v. Wess, 235 Mich.App. 241, 245, 597 N.W.2d 215 (1999)).
  • In 2006, the Supreme Court of New Jersey noted that the state had abolished the right by statute as least as long ago as the 1960s: "By the express terms of the statute, a person has no right to resist arrest by flight or any other means, even if the arrest constitutes an unreasonable seizure under the constitution." New Jersey v. Crawley, 187 N.J. 440, 453, 901 A.2d 924, 931 (N.J. 2006). Even before the statute, however, the common law right to resist was done in Jersey. The Crawley court quoted State v. Koonce, 89 N.J.Super. 169, 184, 214 A.2d 428 (App.Div. 1965): "[It is] the law of this State that a private citizen may not use force to resist arrest by one he knows or has good reason to believe is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances obtaining.” Ibid. The court added, in a passage that amply justifies Barnes' holding: "This State's pre-Code common law rule forbidding resistance to an arrest when police officers act in good faith and under color of their authority furthered the important public policy of discouraging self-help. The policy recognized that in a society governed by laws our courts are the proper forum for challenges to the misuse of official power and for the vindication 932 of rights." Id., 214 A.2d, at 453-54.

Post facto:
Barnes v. Indiana

"I don't know if he's guilty, and it would be imprudent not to consider the conspiracy theories in a case..."

"...involving someone who until this week was the single biggest political threat to the sitting president of France, but the only decent way you can arrive at "nothing in the world can justify" Strauss-Kahn's treatment is if you oppose all perp walks equally. Short of that, it's just special pleading for a powerful dick. And another reminder that BHL is 10 times the national embarrassment to France than Jerry Lewis or even Johnny Hallyday ever was."

That's from Matt Welch, and the powerful d**ck is Dominique Strauss-Kahn. The national embarrassment is Bernard Henri-Levy.*

*Thanks to Rich Horton in the comments for correcting that.

HT: Althouse

Barnes v. Indiana and the overreaction to it

Every so often, a case unites right and left against the courts. Think of Kelo v. New London, for example. The court's holding that government can use eminent domain to transfer private property to another private entity it judges will use it more productively outraged both conservatives (who like private property) and liberals (who instantly realized that the case opened the door for rich corporations to bribe municipalities to pull land out from under the houses of the poor). But I would not have called Barnes v. Indiana as a case likely to join that pantheon.

Decided earlier this week by the Indiana Supreme Court,* the unremarkable holding of Barnes is that if the police violate your rights by executing an illegal entry into your property, your remedy is at law (presumably suppression under Miranda if the entry leads to a prosecution and a § 1983 suit if not, see, e.g., Hopkins v. Bonvicino, 573 F.3d 752 (9th Cir. 2009)) rather than to physically resist the intrusion. In various fora, however, friends, acquaintences, and media outlets on right and left alike are fuming about the decision and saying all manner of nasty things about it—perhaps the very silliest being this article, which implies the decision overrules Magna Carta.

What the critics all seem to miss is that Barnes isn't about rights but remedies. As Justice Rucker's dissent notes (although sharp-eyed readers will note that he quotes Payton v. New York's syllabus—not the case itself, as his citation erroneously claims), the core of the Fourth Amendment is the maxim that a man's home is his castle, inviolable by the police without a warrant. But that's a red herring. The question here isn't whether the entry was illegal, it's what do you do when the police violate your rights?

Justice Rucker and the critics make an enormous, unwarranted, irrational, and frankly dangerous leap: If the Fourth Amendment forbids "all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life," Payton, 445 U.S., at 585 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)), they assume that it must also incorporate the so-called common law "right to resist" (see Bad Elk v. United States, 177 U.S. 529, 534-35 (1900)). We'll return to that point in a moment, but first, let's take a moment to realize just how abberational this claim is. Reasonable minds can—and the justices did—differ over whether suppression is appropriate in cases like Payton, Arizona v. Evans, and Herring v. United States, where police conducted searches that were in fact illegal. But no one thinks that Mssrs. Payton, Evans, and Herring should have physically resisted the officers. Reasonable minds can differ over whether Mr. Lyons should have been able to sue Los Angeles, but no one thinks he would have been justified to start shooting. Reasonable minds can differ over whether the police should be able to enter a house where one physically present resident says they can but another objects (in a horribly mistaken decision, Georgia v. Randolph, the court said no), but no one suggests that Mr. Randolph should have been allowed to take a swing at the cops with the nearest blunt instrument. There is simply no other area of Fourth Amendment law, or any American law at all, where vigilantism is thought the appropriate remedy. Why would this be an exception?

That's what puzzles me about the case's critics. The more reasonable among them (Justice Dickson, for instance) call for a narrower rule, as if the court was swinging a mighty battleaxe with scant concern for innocent bystanders. But it isn't. At risk of repetition—but we have to be clear about this—Barnes holds that your remedy for illegal entry is the same as your remedy for any other illegal search or entry.

As the court observes (in some ways echoing the U.S. Supreme Court's observations in Hudson v. Michigan about improved police professionalism), the reasons for the rule have evaporated with advances in modern police technology:

[A] right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. E.g., Warner, [The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942)] (citing the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the right to resist); State v. Hobson, 577 N.W. 2d 825, 835–36 (Wis. 1998) (citing the following modern developments: (1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies).

No one will deny that a night in the cells is an unpleasent experience, but let's remember what on the other side of the balance: The physical safety of our police officers. As the court notes, "allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest...." That problem becomes particularly acute if we discard a fiction that I indulged above: I've referred several times to "illegal entries" and "illegal searches", but how do we know that a search or entry is illegal? Who gets to decide whether an entry was illegal—and when? Suppose we hold that residents have a right to resist illegal entries; the upshot must be that the resident gets to decide whether the entry is illegal, and will do so in the heat of the moment, because how else could he decide whether to resist? And what the critics fail to realize is that every motion to suppress on Fourth Amendment grounds is a claim that the search or entry was illegal, which means that almost every defendant in those cases could notionally have returned fire under the critics' proposed rule. Proponents of such a rule are going to tell us that Barnes is insane?

Take the Hudson case just mentioned, for example. The state would ultimately concede that Hudson's rights were violated, but the knock-and-announce rule is incredibly subtle, riddled with situation-specific trapdoors and ambiguity—"How many seconds’ wait are too few?" Three to five seconds is too little, as Michigan conceded, and fifteen to twenty is sufficient, see United States v. Banks, 540 U.S. 31 (2003), so, how about ten, cf. United States v. Southerland, 466 F.3d 1083 (D.C. Cir. 2006)? After the dust settled and all the facts could be reviewed, it was decided that Hudson's rights had been violated. In the heat of the moment, however, the police made a snap judgment that the entry was legal; could Hudson—well-versed as I'm sure he was in the common law and fully familiar with Banks—have made a snap judgment that the entry was illegal? And if so, did Hudson have a right to resist that entry? (He certainly had the means: "A loaded gun was lodged between the cushion and armrest of the chair in which he was sitting." How about the defendant in Kentucky v. King; was that entry legal? Did he have a right to resist? The mere fact that the Supreme Court of the United States has to decide whether such searches and entries are legal strongly argues (as Barnes puts it) that it's "unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment."

Lastly, I reserved a point earlier that we must come back to, if briefly. No one disputes that there was a shallow-rooted common law right to resist, and American courts up to and including the U.S. Supreme Court have said so, at least as recently as a century ago. (It is questionable, however, whether that right, properly-understood, is applicable in cases like this; cf. Bad Elk, supra, 177 U.S. at 535; Matthew Lippman, Contemporary Criminal Law 252 et seq. (2d ed. 2010).) But the common law develops, and the Supreme Court of Indiana assuredly has the authority to modify the common law of Indiana. Indeed, the development isn't even novel, see John Ferdico et al, Criminal Procedure 336 (10th ed. 2009) ("While some states continue to use the common law rule allowing resistance to an illegal arrest, an increasing number of states have … reject[ed] the … rule (emphasis added)). Thus, the dissenters need something else: They must contend that the common law right is incorporated into the Fourth Amendment, placing it (theoretically—we opened with Kelo) beyond the reach of the courts to change. That's sound as a general proposition; cf. Wilkinson v. Arkansas, holding that the Fourth Amendment incorporates the common law knock-and-announce rule. But is the right to resist so incorporated? Who says? The dissent simply asserts it, with neither citation nor argument. Surely more probing analysis—indeed, any analysis—is required.

The hostile reaction of ACLU types to Barnes is par for the course; it's a Fourth Amendment decision that isn't explicitly pro-defendant. In days gone by, however, conservatives were law and order types who bemoaned the Warren Court's revolution in criminal process and supported robust police authority to tackle crime. We weren't sissies about the exclusionary rule; we recognized that the Fourth Amendment's ambition of protecting the innocent from overrreaching government can't be accomplished without incidentally protecting the guilty from criminal law, but hoped to limit the overspill. What has happened? Why are some conservatives alarmed by this case?

I'll admit that I think the explanation is simple. Could it be no more than the tenor of the times, so ready to perveive lurking tyranny in every shadow? I posted this week about S.697, in part because I was so astonished to see the almost hysterical overreaction to it in some quarters: "Unconstitutional!" "Tyrannical!" "Obama Ceasar!" Are we now so paranoid about the Obama administration—granted, that most aspirational of Presidents—that some folks don't see this as a case about drug dealers, abusers, and drunken idiots opening fire on the police, but themselves, heroically resisting marauding federal Sardaukar invading our homes? That seems uncharitable, but I can't imagine anything else that would justify Barnes' critics advocating, in effect, a wild west "shoot first" rule. We shouldn't put our police in greater danger every day simply because some folks fantasize that any day now, the day black helicopters will descend to take our guns and impose tyranny.

Post facto:
The novelty factor in Barnes
Barnes v. Indiana

*As will become apparent, my analysis is not limited to the facts of Barnes, but I should recite them anyway. Our two descriptions of the facts come from the Supreme Court's opinion (linked above) and that of the Court of Appeals (available here); I shall attempt to synthesize.
On November 18, 2007, the 9/11 dispatcher received a 9/11 call. A woman explained that her husband was throwing things around the apartment but that he had not struck her. A dispatch went out as domestic violence in progress. Officer Reed was the first to respond to the dispatch and to arrive on the scene, where he found Barnes leaving the apartment carrying a duffel bag. Reed explained that he was responding to a 9/11 call; Barnes, agitated and yelling, told Reed that his services wouldn't be needed. When Barnes continued to harrang Reed, the latter warned that an arrest for disorderly conduct was in the offing, prompting Barnes to threaten a fight.
At this point, the wife, Mary, walked out of the apartment. (Remember, the cops are responding to a domestic abuse in progress dispatch; this is their first time seeing her. For all they knew, she was dead inside.) Your imagination will fill in doubtless colorful dialogue for what the court blandly describes as follows: "Mary walked out of the apartment carrying another duffel bag. She threw the bag down on the ground, telling Barnes to take the rest of his things." She stalked back into the apartment followed by Barnes, Reed, and Officer Henry, who had since arrived. At the threshold, Barnes blocked the officers, saying that they could not enter the apartment, and despite Reed's explanation that they needed to come in to investigate the 911 call, continued to deny them entry.
While this was happening, the officers could hear Mary telling Barnes "Don?t do this" and "just let them in." At this point, Reed attempted to walk past Barnes to enter the apartment, leading Barnes to initiate a physical altercation: he shoved Reed against the wall and a tussle ensued until Reed and Henry had subdued Barnes.

I Ask Again: What's the Plan?

Before President Obama was even sworn in, I asked What's the Plan? That is, what is the American policy plan if a foreign relative of President Obama, such as his grandmother in Kenya, were to be kidnapped. An attack on "Granny Sarah," made because she is a relative of our President, is an attack on the United States, even though she is herself a foreign citizen, and we cannot afford to let it go unanswered, but answering it presents a number of difficult problems, some of which are due to the unique family background of President Obama.

Unfortunately, this threat is now much less hypothetical than it was in December 2008. ABC reports: "Barack Obama's Grandmother Threatened by Al Qaeda." Al-Shabaab, the Samlia-based branch of al Qaeda, has threatened to kill the President's Granny Sarah. Kenyan authorities have added security around her house, but I'm sure they are rather less effective than, say, the U.S. Secret Service.

God forbid, but if the terrorists do succeed in attacking Granny Sarah, what will the Obama Administration do? Retaliation by America is perfectly legitimate; she was targeted solely because of her ties to the American president. But any number of Americans will also wonder, aloud, why we should risk American lives or American interests to retaliate because some third-world thugs in Africa killed an old African woman who has never even been to America. And some critics of the President will paint him, were he to act in response to such an attack, as selfish and placing his family connections above his duties to the country.

I don't have any solid, easy, obvious answers, but I do know this question isn't simply rhetorical. This is a real threat, which will have real consequences to long-term American foreign policy, however it turns out. Somebody in a position of authority needs to be doing some serious thinking about this.

S.679 and the appointment of inferior officers

There is something of an online fuss underway about S.679, a bill which would waive Senate confirmation for a number of Presidential appointments. The Heritage Foundation has a relatively sober analysis here, but it was Terresa Monroe-Hamilton who really lit a fire under the issue with this post. We are told that the bill appoints Caesar; it does not. We are told that the President’s hand “is quickly forming into a dictatorial fist that is about to smash our Constitution”; it is not. I conclude that with three exceptions and five borderline cases (out of more than a hundred positions affected), the bill does not raise constitutional difficulties.

Unfortunately, it inevitably takes far less time and effort to fling mud than to clean it up, so you should settle in for what will be a lengthy and tedious post.

Modernism in politics

David Cameron says: "Politics shouldn’t be some mind-bending exercise. It’s about what you feel in your gut—about the values you hold dear and the beliefs you instinctively have. And I just feel it, in my gut, that AV is wrong." He is wrong to a certain extent; politics naturally includes a rational, logical, empirical element. Nevertheless, he is also right to a great extent—indeed, he is expressing a venerable Burkeian principle—and because he will be pilloried for the remark, I will say a few words in defense of recognizing the limits of pure reason.

To set the stage, I must first paint a metaphor. The best way to envision tradition, it seems to me, is as a mighty river, the aggregation of countless individual drops contributed over time. The thing about tradition is that it's always apparent when someone (or one generation) meddles too much; tradition certainly doesn't preclude development and decision, but legitimate development is always organic and incremental, and when one person or generation takes it upon themselves to change too much, there are telltale signs. The river starts to look like a canal. The novus ordo Mass, for example, has the feeling of an anabrach: same water, but somehow more restricted, somehow out of the mainstream, somehow artificial.

This metaphor also suggests the great threat of liberalism, by which we really mean modernism-rationalism: They don't like the river; they don't like being on the water, they don't like where the water came from, they don't like where the water's been, and they don't accept the notion that the river ought to exist (still less carry anyone, least of all them)—so they try to divert it here and there, but ultimately their goal is to dam it up completely and walk. As Oakshott observed in Rationalism in Politics,"[t]o the Rationalist"—which is really no more than another name for the modernist—"nothing is of value merely because it exists (and certainly not because it has existed for many generations), familiarity has no worth, and nothing is to be left standing for want of scrutiny." Thus, such men spend much of their lives assuming that it is for them to judge tradition, and accordingly seek to hale "the social, political, legal and institutional inheritance of his society before the tribunal of his intellect; and the rest is rational administration, 'reason' exercising an uncontrolled jurisdiction over the circumstances of the case." (Edmund Burke would similarly lament "the total contempt which prevails [in jacobin France] ... and may come to prevail with us, of all ancient institutions when set in opposition to a present sense of convenience or to the bent of a present inclination.")

With these observations in mind, let us now turn back to Mr. Cameron's remark. Cameron is effectively warning that pure reason will not suffice to decide every question. In fact, it's often the case that we hesitate or leap forward based on what, if we are honest, are instinctive or emotional concerns that we can't quite articulate on an intellectual level; "what we call rational grounds for our beliefs[] are often extremely irrational attempts to justify our instincts." 3 Thomas Huxley, Life & Letters 94 (2007). The conceit of the modernist-rationalist complex is to dismiss all such concerns, but the well-formed conservative mind jumps immediately to Burke, who addressed precisely this point in his Reflections on the Revolution in France:

"[I]n this enlightened age I am bold enough to confess that we are generally men of untaught feelings, that, instead of casting away all our old prejudices, we cherish them to a very considerable degree…; and the longer they have lasted and the more generally they have prevailed, the more we cherish them. We are afraid to put men to live and trade each on his own private stock of reason, because we suspect that this stock in each man is small, and that the individuals would do better to avail themselves of the general bank and capital of nations and of ages. Many of our men of speculation, instead of exploding general prejudices, employ their sagacity to discover the latent wisdom which prevails in them. If they find what they seek, and they seldom fail, they think it more wise to continue the prejudice, with the reason involved, than to cast away the coat of prejudice and to leave nothing but the naked reason; because prejudice, with its reason, has a motive to give action to that reason, and an affection which will give it permanence. Prejudice is of ready application in the emergency; it previously engages the mind in a steady course of wisdom and virtue and does not leave the man hesitating in the moment of decision skeptical, puzzled, and unresolved. Prejudice renders a man's virtue his habit, and not a series of unconnected acts. Through just prejudice, his duty becomes a part of his nature."

Burke urges—and Cameron appears to accept—that our trust must be in the river, not in the innate capacity of individual drops of water. We are not accustomed to hearing a rousing defense of "prejudice" because the word has taken on a pejorative cast, but Burke situates it in the instinctive hesitation to get out of the river of tradition. It is in this context that we should understand John Gall's (I think) deeply conservative warnings about systems. It is in this context that we should understand Potter Stewart's "I know it when I see it" test. And it is in this context that we should understand G.K. Chesterton's often misunderstood proposal that tradition be seen as “democracy extended through time.” Orthodoxy 84-85 (1909). We may not always be able to articulate why something is wrong, because of the limitations of individual wisdom or learning, but, soaked through with the traditions of Christendom generally and Anglo-American civilization particularly, we intuitively know a problem when we see it. When we get out of the river, we know it from the wind chill.

Of course, such concerns are dismissed by the modernists and rationalists (who, like the so-called "legal realists," cleverly sought to adopt names as barricades: Who could be against rationality?), so brilliantly skewered by Pius X in Pascendi Dominici Gregis and Oakshott in Rationalism in Politics. As the latter observes, the modernist-rationalist "is at once sceptical and optimistic: sceptical, because there is no opinion, no habit, no belief, nothing so firmly rooted or so widely held that he hesitates to question it and to judge it by what he calls his 'reason'; optimistic, because the Rationalist never doubts the power of his 'reason (when properly applied) to determine the worth of a thing, the truth of an opinion or the propriety of an action." These conceits have become so widespread today that it is easy to lose sight of the fact that they are just that, and that they must be resisted.

So Mr. Cameron is right to accept—and to be honest—about the limits of pure reason. It is not an invalid answer to say that we instinctively feel, in ways and for reasons that we cannot quite articulate, that something is outside of our tradition and for that reason should be rejected.

Post facto:
MP: Altar bells and keeping faith with tradition (Nov. 10, 2011)


We need a new Cecelian movement

Compare and contrast:

Versus, for example, this dreck. (I refuse to embed it.) In the late Nineteenth and early Twentieth Century, the Cecelian movement "strove to acquaint Church musicians with the laws of the Church on sacred music," and to "present[] acceptable Church music to the organists and choirmasters, in order that they would perform music in accordance with Church legislation," emphasizing sacrality of style in opposition to the invasion of popular secular styles into the liturgy.* Their example seems timely. Of course, the job of the original Cecelians was relatively easy: There was a stockpile of readily-available material that needed nothing more than a dusting off. But that treasury, great as it remains, fits poorly into the novus ordo framework. If there is to be a new Cecelian movement—I submit that there should be, and that the new translation provides a perfect opportunity—it has three broad challenges:

  • It must not only identify existing music, but ways in which that music can be fitted into the ordinary form (e.g. substituting the Gradual for the responsorial psalm, cf. GIRM 61, and choral music for the offertory and communion hymns, see GIRM 48, 74, and 87).
  • It must create new music for the novus ordo texts cast in traditional forms while also satisfy the desire for communal singing (cf. SC 118).
  • And it must assist in building the infrastructure and incentives for performance (e.g. getting music into the hands of choirs, and helping to ensure choirs are there to sing it).

These are by no means easy tasks, but they can be done; the Cecelians had much success in driving out the worst excesses of vulgar music, although one might question how much of the self-generated material had lasting impact.

(Via the Chant Cafe.)

* Edward Schaeffer, Catholic Music Through the Ages 111-12 (2008) (quoting Robert Hayburn, Papal Legislation on Sacred Music 115, 122, 126 (1979)).

BREAKING: White House To Announce That Osama Bin Laden Has Been Killed

More to follow...


Story is here, BTW.

Let me just add that President Obama's speech hit all the right tones, and was as solid as ever.

"Bloomberg has the Mr. Moderation act, but underneath it, perhaps he's out of his mind. "


There aren't enough words to describe how insane this is, but what does everybody think?

How it ought to be done

A few years back, Mike Oldfield seemingly demonstrated that he has no clue what made Tubular Bells so transcendentally wonderful by remaking it "the way he always wanted it to sound" (I'm paraphrasing). Unless he always wanted it to sound like dated techno nonsense, I think it was just a cynical ploy to open people's wallets, although we can't rule out the possibility that he's just dim (the corollary to Althouse's Law—"to be a great artist is necessarily to be a conservative"—is that, since few artists self-identify as conservatives, most artists are stupid). At any rate, at least one arranger, conductor, and orchestra get it:


The birth certificate

Obama's so-called "long form birth certificate" is released; per posts and comments passim, I share FreemanHunt's assesment from the comments of the post just linked:

Hardly anyone believed that something was amiss until the issue went on and on and on, and Obama wouldn't put it to rest. I think he wagered that it was good politically to get some of his opponents wrapped up in a nonsense issue. Once the doubts about his birthplace seeped into the mainstream, it was not good politically anymore, and so the certificate has been released.

Added: I love the Telegraph's headline: Obama hits back at 'birthers' and releases birth certificate. The birthers demanded that Obama release his long form birth certificate; he did. I suppose that in much the same way, General Lee could be said to have "hit back" at the Union at Appomattox.

Leon Panetta In As New SecDef; Petraeus in as New CIA Head

I just wanted to discuss the choice of Leon Panetta as the new Secretary of Defense, and...wait, hold on a second. What? Obama has released his long-form birth certificate? Really? OK, then, never mind.

Here is the full image, by the way.

ALSO: In other news, the President really has in fact made some key changes in his national securty team, as Leon Panetta will be the new Secretary of Defense, and Gen. Petraeus will take his job as CIA chief. Speaking of national security issues, the birther-Trump nonsense may be a circus, but it's not the only one, as the United Nations Human Rights Council slides further and further into a disgraceful sideshow.

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