John Roberts' Paper Trail

An article in the New York Times on John Roberts' "paper trail" is reassuring, though not for the Times, I suppose:

John G. Roberts, a young lawyer in the Justice Department in 1981 and 1982 and on the White House counsel's staff from 1982 to 1986, held positions too junior for him to set policy in those days. But his internal memorandums, some of which have become public in recent days, reveal a philosophy every bit as conservative as that of the policy makers on the front lines of the Reagan revolution and give more definition to his image than was apparent in the first days after President Bush picked him to be an associate justice of the Supreme Court.

On almost every issue he dealt with where there were basically two sides, one more conservative than the other, the documents from the National Archives and the Ronald Reagan Presidential Library show that Judge Roberts, now of the United States Court of Appeals for the District of Columbia Circuit, advocated the more conservative course. Sometimes, he took positions even more conservative than those of his prominent superiors.

He favored less government enforcement of civil rights laws rather than more. He criticized court decisions that required a thick wall between church and state. He took the side of prosecutors over criminal defendants. He maintained that the role of the courts should be limited and the president's powers enhanced.

Consider Mr. Roberts's stands on some of the hottest political issues of the 1980's as revealed in the newly public documents:

Busing: In 1985, when he was an assistant White House counsel, Mr. Roberts took issue with Mr. Olson, an assistant attorney general at the time, on whether Congress could enact a law that outlawed busing to achieve school desegregation. Mr. Olson, who was one of the nation's most widely known conservative lawyers on constitutional matters, was arguing that Congress's hands were tied because the Supreme Court had ruled that busing was constitutionally required in some circumstances.

Mr. Roberts wrote in a memorandum to the White House counsel, Fred F. Fielding, that Mr. Olson had misinterpreted the law. He said evidence showed that by producing white flight, busing promoted segregation. "It strikes me as more than passing strange for us to tell Congress it cannot pass a law preventing courts from ordering busing when our own Justice Department invariably urges this policy on the courts," he wrote.

Sex discrimination: Mr. Roberts also challenged Mr. Reynolds, who was assistant attorney general for civil rights and another prominent conservative who outranked him. In 1981, he urged Attorney General William French Smith to reject Mr. Reynolds's position that the department should intervene on behalf of female prisoners who were discriminated against in a job-training program. If male and female prisoners had to be treated equally, Mr. Roberts argued, "the end result in this time of state prison budgets may be no programs for anyone."

Judicial restraint: Mr. Roberts consistently argued that courts should be stripped of authority over busing, school prayer and other matters. In a letter in November 1981 to Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit, in New York, for whom he had clerked and whom he considered a mentor, Mr. Roberts wrote that he and his colleagues in the administration were determined to "halt unwarranted interference" by the courts in the activities of Congress and the executive branch.

Presidential war powers: In 1983, Arthur J. Goldberg, the former Supreme Court justice, wrote a letter to the White House questioning President Reagan's constitutional authority to send troops to Grenada without a declaration of war. Mr. Roberts replied with a ringing endorsement of the president's power. "This has been recognized at least since the time President Jefferson sent the Marines to the shores of Tripoli," he wrote. "While there is no clear line separating what the president may do on his own and what requires a formal declaration of war, the Grenada mission seems to be clearly acceptable as an exercise of executive authority, particularly when it is recalled that neither the Korean nor Vietnamese conflicts were declared wars."

Affirmative action: Mr. Roberts held that affirmative action programs were bound to fail because they required "the recruiting of inadequately prepared candidates." "Under our view of the law," he wrote in 1981, "it is not enough to say that blacks and women have been historically discriminated against as groups and are therefore entitled to special preferences."

Immigration: Mr. Roberts took strong issue with a Supreme Court decision striking down a Texas law that had allowed school districts to deny enrollment to children who were in the country illegally. The court had overreached its authority, he wrote, and the Justice Department had made a mistake by not entering the case on the state's side.

Church-state: Mr. Roberts was sharply critical of the Supreme Court decision outlawing prayer in public schools, and he said the court had exceeded its authority when it allowed any citizens to challenge the transfer of public property to a parochial school.

It's going to be devilishly hard for the Democrats to convince the American people that these positions put Judge Roberts out of the American mainstream, although of course that won't stop them from trying. All in all, Roberts sounds like a man of eminent good sense and an excellent choice for the Supreme Court. Even Ann Coulter should be pleased.

The Liberal Church

Christianity has many attractions, but one of them surely is that it offers people sustenance that they can find nowhere else in the culture. It offers, among other unique goods, transcendence, a solid ground for morality, and a solid set of morals to go with it. It is because so many liberal churches have abandoned these benefits and embraced the moral thinking fashionable in the larger culture that their pews are being emptied. People, particularly the young, see no reason to commit to a church that offers them on Sunday morning nothing that the world doesn't offer during the rest of the week.

This is the theme of a new book titled Exodus: Why Americans are Fleeing Liberal Churches for Conservative Christianity, by journalist and author Dave Shiflett. Shiflett interviewed Southern Seminary President R. Albert Mohler Jr. and Southern Baptist Ethics & Religious Liberty Commission President Richard Land for the book and devotes a lot of Exodus to their thoughts. An article by Jeff Robinson for BP News discusses Shiflett's work. Robinson writes:

Liberal Christianity's rejection of the inspiration, inerrancy and authority of the Bible is to blame for its demise, Land said, adding that is the reason the mainline denominations are losing members and conservative churches are drawing them in.

"... Once you embrace liberal Christianity, you cut loose from your anchor," Land said. "And you keep drifting. Liberal Christianity had totally abandoned biblical authority by the late 1950s. They said they had 'moved beyond' Scripture."

Mohler says the mainline downgrade is perhaps seen most clearly in its views of sexuality.

"[Liberal churches] make no demands, including demands on sexual behavior," Mohler said. "Why should, for example, a sixteen-year-old boy and girl bother to go to a liberal church? What does this church have to offer that's any different from what they get from the culture? The church tells them that if they want, they can have sex. They already know that. That's what society tells them. The church needs to tell them that they can't have sex, and has to explain why.

"The mainline denominations have decided that the most basic human drive, sex, can be permanently separated from the most basic human institution, marriage. There is no room for Christianity in that equation."

There's more about the book at the link, but the main theme presses upon me as I prepare to travel to Orlando in August to participate in the Church-wide assembly of the Evangelical Lutheran Church in America (ELCA). Among the resolutions which will be taken up and voted upon are whether the Church should bless same sex unions and whether it should ordain homosexual men and lesbian women to the ministry.

Affirmative votes on either of these resolutions would be, in my view, a calamity for the ELCA. It may be true for all I know that Lutheran theologians are divided on how to properly interpret the Scriptural passages bearing upon the issue of homosexuality. Even so, it would be extremely reckless, in the absence of a strong theological consensus, to overturn 500 years of Lutheran scholarship and 2000 years of Christian tradition simply to conform church praxis to a contemporary social fashion.

Moreover, should the voting members assembled in Orlando see fit to approve these resolutions, what basis would future assemblies have for refusing to bless or ordain those who live in loving and committed relationships with more than one other person? Why should those people be excluded from the church's grace? On what grounds could the church withhold its blessing from heterosexuals living together in deeply committed but unmarried relationships or sharing in loving but adulterous relationships? Once the church decides that the sex of the two people in a relationship no longer matters then it has no justification left for saying that anything else about the relationship matters either. It will have cast itself adrift with no compass, no rudder, but plenty of sail to be pushed about by whatever wind of prevailing taste happens to be blowing through the culture.

What does such a church offer to people that the wider culture doesn't? Why should anyone bother to commit themselves to it? Certainly not to find spiritual anchorage and moral refuge from the gales of relativism sweeping through modern society. The Church which abandons its theological and moral moorings loses its distinctiveness, and it's only a matter of time before it finds itself wondering where its parishioners have all gone.

Howard Unhinged

Whatever you may think about Howard Dean you have to admit that he's good for laughs. Consider this CNS News article on Mr. Dean's recent speech to the College Democrats of America:

[Dean] said the president was partly responsible for a recent Supreme Court decision involving eminent domain [The Kelo decision].

"The president and his right-wing Supreme Court think it is 'okay' to have the government take your house if they feel like putting a hotel where your house is," Dean said, not mentioning that until he nominated John Roberts to the Supreme Court this week, Bush had not appointed anyone to the high court.

Dean's reference to the "right-wing" court was...erroneous. The four justices who dissented in the Kelo vs. New London case included the three most conservative members of the court - Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas. Justice Sandra Day O'Connor was the fourth dissenter.

The court's liberal coalition of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer combined with Justice Anthony Kennedy to form the majority opinion, allowing the city of New London, Conn., to use eminent domain to seize private properties for commercial development.

"We think that eminent domain does not belong in the private sector. It is for public use only," Dean said.

Evidently, Mr. Dean has an unhappy relationship with the facts, but we shouldn't quibble. It's just like conservatives, after all, to throw cold water on a good speech by insisting that its claims be factually correct. Why let facts stand in the way of a rousing stem-winder? So what if Mr. Dean has no idea what he's talking about? So what if he's the guy who claimed to be the head of the "reality-based" party? Do you think anyone in his audience cared? Truth is so twentieth century.

After lambasting the Republicans for their lack of moral values and praising Democrats for their moral virtue in pushing for a strong public education system, balancing the budget, and, he implies, winking at illegal immigration, he shouted that he is "sick of being divided."

It's not clear what he meant by this, but he was apparently referring to the gap between what he says and what is objectively the case. Or maybe he suffers from multiple personality disorder. At any rate, it's telling that he didn't list honesty in his peculiar catalogue of Democrats' moral values.

The Iraqi Constitution

Omar at Iraq the Model has a partial translation of a draft of the Iraqi constitution. Omar finds a couple of provisions so objectionable that he would vote to reject the whole thing rather than accept them. The proposed draft (words in parentheses are still being debated) states that:

The (Islamic, federal) republic of Iraq is a sovereign, independent country and the governing system is a democratic, republican, federal one.

Omar protests: "The Islamic republic of Iraq!? NO WAY."

The most repugnant clause for Omar, however, is this:

Islam is the official religion of the state and it is the main source of legislation and it is not allowed to make laws that contradict the fundamental teachings of Islam and its rules (the ones agreed upon by all Muslims) and this constitution shall preserve the Islamic identity of the majority of the Iraqi people (with its Shea't majority and its Sunni component) and respect the rights of all other religions.

Omar comments that: "This is the deadliest point if approved; Islam or any religion cannot and must not be the main source of legislation."

On the one hand, Omar is right that Islam should not be the basis for Iraqi law because Islam has a very attenuated view of human rights. On the other hand, it would be very difficult to construct a system of laws which is not ultimately grounded in something more objective than a popular consensus.

Both Iraq and its Western supporters (like me) are in a bind here. Most Westerners would argue that the best model for Iraqi law is one which, like our own, places a premium on human rights. But our obligation to respect human rights derives from our Christian heritage, specifically the belief of the Founders that we are created in the image of a God who loves and values us. Because of this, and only because of this, we have worth, dignity, and the right not to be harmed. No man, as John Locke said, has the right to harm what belongs to, and is loved by, God. Take away creation by a transcendent creator, and all we are is an ephemeral glob of carbon and water whose only "rights" are whatever the whim of the authorities induces them to grant us.

Christianity enjoins us to extend to even those who spurn God, the "infidels", tolerance and love in accordance with Jesus' teaching on this very subject (see Mat.13:24-30; Lk.6:27-37). Muslims might be able to reconcile human dignity with the principles of the Koran, but it's hard to see how they could find a basis for tolerance, forgiveness and love of one's enemies in Koranic tradition. Unfortunately, it's even harder to imagine Muslims embracing a Christian rationale for their constitutional provisions.

And yet, the fear is that unless they do, they will ultimately slip back into the same human rights morass that Muslims have been mired in for 1300 years. I once asked a moderate Imam at a local mosque this question: If you could wave a magic wand and convert a majority of Americans to Islam so that you had the political power to write laws, amend the constitution, etc. what would become of the Bill of Rights, specifically the first amendment? He talked around the question, by way of a response, but he never answered it. I had the feeling that he didn't want to because he knew that the freedoms contained in the first amendment were antithetical to Islam.

One wonders how long human and minority rights would be protected by a constitution that is officially based upon Sharia (Islamic) law.

FOOTNOTE: We've been hearing the last few days that the Iraqi constitution allows anyone to become an Iraqi citizen except Israelis. I saw no mention of this in the portion of the constitution translated by Omar, but maybe I missed it. If it is in there, it would be a reprehensible act of bigotry which all Iraqis should repudiate.