Constitutional Betrayals

Over at Stratfor, George Friedman has written an outstanding essay which asks the sensible question: "What Happened to the American Declaration of War?" He makes the point that there has not been a declaration of war passed by Congress since 1941, at the start of World War II -- even though America has since been involved in no less than six wars: Korea, Vietnam, Kuwait-Iraq, Afghanistan, Iraq again, and now Libya.

In words that echo as eerily familiar to those which President Obama is using today, Harry Truman justified his sending of troops into Korea without a declaration of war on these grounds:

When North Korea invaded South Korea, Truman took recourse to the new U.N. Security Council. He wanted international sanction for the war and was able to get it because the Soviet representatives happened to be boycotting the Security Council over other issues at the time.

Truman’s view was that U.N. sanction for the war superseded the requirement for a declaration of war in two ways. First, it was not a war in the strict sense, he argued, but a “police action” under the U.N. Charter. Second, the U.N. Charter constituted a treaty, therefore implicitly binding the United States to go to war if the United Nations so ordered. Whether Congress’ authorization to join the United Nations both obligated the United States to wage war at U.N. behest, obviating the need for declarations of war because Congress had already authorized police actions, is an interesting question. Whatever the answer, Truman set a precedent that wars could be waged without congressional declarations of war and that other actions — from treaties to resolutions to budgetary authorizations — mooted declarations of war.

Lyndon Johnson, meanwhile, feared he could not get a declaration of war, and so he simply went to war without one, using an isolated (and then trumped-up) incident as a pretext:

By the time Vietnam came up, the transition from military assistance to advisers to advisers in combat to U.S. forces at war was so subtle that there was no moment to which you could point that said that we were now in a state of war where previously we weren’t. Rather than ask for a declaration of war, Johnson used an incident in the Tonkin Gulf to get a congressional resolution that he interpreted as being the equivalent of war. The problem here was that it was not clear that had he asked for a formal declaration of war he would have gotten one. Johnson didn’t take that chance.

What Johnson did was use Cold War precedents, from the Korean War, to nuclear warfare, to covert operations to the subtle distinctions of contemporary warfare in order to wage a substantial and extended war based on the Tonkin Gulf resolution — which Congress clearly didn’t see as a declaration of war — instead of asking for a formal declaration. And this represented the breakpoint. In Vietnam, the issue was not some legal or practical justification for not asking for a declaration. Rather, it was a political consideration.

For Friedman, the Vietnam War marked the abandonment by the United States of its constitutional principle that while the President is commander-in-chief of its armed forces, the sovereign people, through an act of their elected representatives, must first authorize him to take the country into war (emphasis added):

Johnson did not know that he could get a declaration; the public might not be prepared to go to war. For this reason, rather than ask for a declaration, he used all the prior precedents to simply go to war without a declaration. In my view, that was the moment the declaration of war as a constitutional imperative collapsed. And in my view, so did the Johnson presidency. In hindsight, he needed a declaration badly, and if he could not get it, Vietnam would have been lost, and so may have been his presidency. Since Vietnam was lost anyway from lack of public consensus, his decision was a mistake. But it set the stage for everything that came after — war by resolution rather than by formal constitutional process.

Formal resolutions of war serve a very important function in our democracy -- they represent a unification of all Americans, through their elected representatives, behind the goals of the war in question. But as Friedman observes, such declarations serve other important objectives, as well:

A declaration of war, I am arguing, is an essential aspect of war fighting particularly for the republic when engaged in frequent wars. It achieves a number of things. First, it holds both Congress and the president equally responsible for the decision, and does so unambiguously. Second, it affirms to the people that their lives have now changed and that they will be bearing burdens. Third, it gives the president the political and moral authority he needs to wage war on their behalf and forces everyone to share in the moral responsibility of war. And finally, by submitting it to a political process, many wars might be avoided. When we look at some of our wars after World War II it is not clear they had to be fought in the national interest, nor is it clear that the presidents would not have been better remembered if they had been restrained. A declaration of war both frees and restrains the president, as it was meant to do.

Without the preventative of a constitutional requirement to declare war, the President is free to do as he is doing now: placing our armed forces in harm's way to serve the objectives of other groups and interests -- be they NATO, the UN, or just some of our allies. And, says Friedman, to do so represents a confusion, or confounding, of the national interest with the role of America as an empire -- as part of a more global hegemony (emphasis added):

. . . What is most important is that the republic not be overwhelmed in the course of pursuing imperial goals. The declaration of war is precisely the point at which imperial interests can overwhelm republican prerogatives.

There are enormous complexities here. Nuclear war has not been abolished. The United States has treaty obligations to the United Nations and other countries. Covert operations are essential, as is military assistance, both of which can lead to war. I am not making the argument that constant accommodation to reality does not have to be made. I am making the argument that the suspension of Section 8 of Article I as if it is possible to amend the Constitution with a wink and nod represents a mortal threat to the republic. If this can be done, what can’t be done?

That is the real point of concern: "amending the Constitution with a wink and a nod." If the Constitution can be ignored by consensus, or by indifference, then we are no longer a nation under law, but under men (generically speaking, of course).

ECUSA is also an organization of men (generically, again), under a Constitution. Lately, however, its Presiding Bishop, and both General Convention and the House of Bishops under her leadership, have ignored the Constitution in the interest of advancing specific social and legal objectives. For example, General Convention 2009 saw fit to recognize and seat the deputations from four former dioceses, without the necessity of their following the Constitution and organizing themselves properly into new dioceses as required by Article V. This served the purpose of being able to claim in court that they were already dioceses, because they had never left the Church. (Even though the Constitution does not say so, the current leadership argues in court that a diocese can never leave the Church, because it needs all the diocesan property and assets -- as well as the threat of lawsuits against other dioceses -- in order to survive.)

Or again, General Convention, the House of Bishops and its presiding officer have enacted a new disciplinary section (Title IV) of the Canons, which without any constitutional authority whatsoever transforms the Presiding Bishop into a full metropolitan, with episcopal authority over every other bishop. This transformation defies 222 years of historical tradition and precedent, but it was done "with a wink and a nod", after just fifteen minutes of debate.

The weakness of Constitutions is that if no one insists that they be followed, they have no mechanism of self-enforcement. Disobeying a Constitution sets a very bad precedent, but as with Korea or the Gulf of Tonkin, a bad precedent still becomes a precedent. It is expedient for President Obama to subjugate our national interests to those of France, Britain and NATO (to say nothing of the UN). And it is expedient for Bishop Jefferts Schori to subjugate the independence of dioceses to her metropolitical will.

The cost to be paid for giving in to expediency, however, is never reckoned until it is too late. America becomes a tool of global interests, and ECUSA becomes a tool of the Zeitgeist, the contemporary culture. Notice that the former, in doing so, loses all meaning as a republic. And the latter, in doing so, loses all meaning as a church.

Two Great Lenten Posts

Lent is a season for reflection -- and repentance. Two excellent recent posts in the blogosphere bring out this character of Lent especially, and I commend them to your attention.

Over at his blog Culture Watch, Bill Muhlenberg has written Why the Book of Revelation Would Be Banned Today, and he is right. A sample to whet the appetite:

Here we have a book which is guilty of every thought crime imaginable today: it is sexist, chauvinistic, militaristic, judgemental, intolerant, bigoted, and exclusivist. It is totally politically incorrect, and in today’s wimpy spiritual climate, it is theologically incorrect as well.

Consider the many ways in which it offends our modern sensibilities. It is clearly a male-dominated book, with patriarchal and chauvinistic themes and images running throughout. . .
. . .
And consider all the times repentance is mentioned in this book. If we just look at the seven churches we find Jesus calling them to repent time and time again. And what about verses like Rev. 9:20-21? “The rest of mankind who were not killed by these plagues still did not repent of the work of their hands; they did not stop worshiping demons, and idols of gold, silver, bronze, stone and wood – idols that cannot see or hear or walk. Nor did they repent of their murders, their magic arts, their sexual immorality or their thefts.”

But I thought Jesus wasn’t into repentance. All my Christianity-lite and emergent church buddies insist that Jesus hardly ever spoke about repentance. Jesus does not make any heavy demands – he welcomes us all with wide-open arms.

And they also told me that we can forget everything else and just concentrate on the love of God. This is the supreme attribute, as I have been told so often. All other attributes are really just secondary to his love. . .

The love of God is hardly mentioned in the book. . . .

As Fr Kendall Harmon would say, read the whole thing. And then complete your Lenten studies by using the remaining weeks to re-read the Book of Revelation.

My second highly recommended Lenten post recounts a true story about the late Pope John Paul II, of blessed (soon to be sainted) memory. It comes from a Catholic blog, Laudem Gloriae, whose author (unlike yours truly -- that's why I admire her blog so much) is always pithy and to the point. (I owe my introduction to her to another of my favorite bloggers, Mrs. P.)

Here is the beginning of this marvelous Lenten story -- you will have to visit Christine's blog ("The Beggar and the Pope") to finish it:

A priest from the Archdiocese of New York was visiting Rome. As he was walking into a church to pray, he noticed a beggar sitting at the front door—not an unusual sight in Rome. But something about this particular beggar bothered him. He didn’t figure it out until he began to pray: he suddenly realized that he knew the man from his days in the seminary.

He immediately went back outside and said to him, "Excuse me, do I know you?" Sure enough, the beggar had been in the seminary with him many years earlier. He had been ordained a priest, but had [in his words] "crashed and burned" in his vocation.

The priest from New York was understandably shaken up when he left the beggar a few minutes later.

That afternoon he was at the Vatican, and had the opportunity to meet the pope and speak with him. He said to him, "Please, Holy Father, pray for this particular man. I went to seminary with him, and he’s now a beggar on the streets of Rome. Please pray for him, because he’s lost."

The Holy Father instructed the priest to go back to the beggar. . . .

Read the rest of the story here, and enjoy a reflective Lent, full of repentance and spiritual improvement.

The Soft Tyranny of Low Expectations

ECUSA's House of Bishops is gathered for its annual spring meeting at the Kanuga center near Hendersonville, in North Carolina. The spring meetings have in the past been characterized by an atmosphere of retreat and contemplation, with a goal of increasing the ability of the group to work together -- while separated from the turmoil of Church politics (what an oxymoron!). As one participant expresses it:

I remember the first Spring meeting we had there after the melt-down General Convention in Phoenix when Ed Browning decided we needed to meet more regularly as bishops, to work on our common life, and to find venues in which to pray and talk and relate to one another, free from the highly-charged “political” atmosphere of General Convention or even the traditional Fall meetings of the House.

I think these meetings have served us well and one doesn’t [hear] the “d” word –”dysfunctional” — thrown around quite so much any more describing the House of Bishops. These Spring meetings used to have more of a ‘retreat’ atmosphere which I always appreciated. I think some of that has gone by the wayside over the years, but the conference/retreat center setting of Kanuga still lends itself to a different feeling for the meeting.

Given the collegial atmosphere and expectations, therefore, it comes as a bit of a shock to learn that the leadership of ECUSA has arranged a slightly different agenda for the 2011 spring meeting of the House of Bishops. That agenda includes an indoctrination of the attendees into what President Ronald Reagan once memorably called "the soft tyranny of low expectations" (and which George W. Bush changed into "the soft bigotry of low expectations"). Again, we have this eyewitness account (I have added the bold emphasis):

After a challenging address by the PB to “show up” in the various challenging venues of today’s world, we had a report from a committee on changes in governance of The Episcopal Church, concerns about the new Title IV Canon revisions (clergy discipline), a report from the committee on same gender blessings, and from a group looking at devising a process for the “reconciliation or dissolution of a pastoral relationship between a bishop and a diocese!”

Wow! For the new bishops: welcome to your new role!

"Welcome to your new role," indeed. Bishop Epting (now retired, but attending in lieu of Bishop Scarfe of Iowa, who is on a sabbatical) may not realize how close he has come to hitting the nail on the head. While the number of new bishops in the House of Bishops not politically significant, and is at best a dozen or so among a total of about 130, it is essential that the new bishops be, in the words of Oscar Hammerstein, "carefully taught".

And what better subject for the "teachers" than the newly created metropolitan authority of the Presiding Bishop herself? She begins the process with an exhortation to the assembled bishops to "show up in the various challenging venues of today's world" (how postmodern can we make this?). Having thereby subtly established her authority to issue pastoral directives to her colleagues, she hands the real task of instruction over to those who were the architects of the changes to Title IV of the national Canons -- the members of the (Second) Title IV Task Force. The constitutionality of their changes has been called into serious question, both on this blog and on others deeply concerned with Episcopal Church polity. It is a bit disconcerting, but nevertheless entirely within the character of the current administration, to have the assembled bishops hear only from members of the Title IV Task Force, who continue to maintain -- in the face of all historical and logical evidence -- that they are right and every other canon law expert is just wrong.

Enter "the soft tyranny of low expectations": the new bishops, having never known what it means to be an independent diocesan with no superior, will not miss their freedom. And they will be ushered into the new Era of Jefferts Schori, when the slightest challenge they might offer to the Primate's authority can trigger an immediate suspension from office. Talk about being kept in line -- they will never summon the gumption to test the strength of the velvet nooses around their necks!

There will be some exceptions, notably the Bishop of South Carolina, who kowtows only to Christ, and not to any mere mortal. Any such show of independence may well serve as the initial test of the Presiding Bishop's authority; but she may also be cautious at first, and choose to establish precedent with a spineless specimen who she knows will not fight back. When the House of Squishops backs her up, she will know that it is time to make her move.

And then the "soft tyranny of low expectations" will meet "Don't Tread on Me." We are in for some interesting days.

[UPDATE 04/03/2011: The picture continues to be filled in by more reports. It turns out that "Doubting Thomas" and I (see the previous update, below) were talking about two completely separate events. In addition to the "Short Course" presented for those who will be involved in disciplinary proceedings under the new Title IV, which took place during the two days before the official start of the HoB meeting, there was also a special committee of bishops appointed by the Presiding Bishop to look into the controversy surrounding the adoption of the new Title IV. As far as I am able to tell, this special committee, or "task force" (hence the confusion with the "Title IV Education Task Force" and the "Title IV Task Force II"), met with the members of the Title IV Task Force II (both episcopal and lay), who had drafted the changes, and with Messrs. Runyan and McCall, and then made a report to the House of Bishops which thus included a summary of the reasons why Bishops Lawrence and MacPherson believed the changes to have gone beyond the constitutional powers of General Convention. This "report", and the brief discussion which followed it, took place at the opening Friday session of the House of Bishops, but was not reported in the official summary. Nevertheless, it now appears to be what Bishop Epting was writing about, while the two other reports mentioned below obviously had to do with the pre-conference Short Course, since they were dated earlier and referred to a two-day session.

Although the special HoB "task force" thus was separate from the members of the Title IV Education Task Force who had presented at the Short Course, its membership nonetheless included Bishop Robert L. Fitzpatrick of Hawaii, who served on the Title IV Task Force II. And it is still of consequence to note that despite the report, the House of Bishops took no action to request the convening of a Special General Convention to deal with the coming constitutional crisis over the implementation of the new Title IV starting next July 1. It is for that reason that I find today's Gospel reading (John 9:1-41) so apt.]

[UPDATE 04/02/2011: Over at StandFirm, commenter "Doubting Thomas" challenges the accuracy of the above account, having learned from his "source" at the HoB meeting that the presentation to the assembled bishops included the concerns of Bishop Lawrence and his counsel, C. Alan Runyan, and was not as one-sided as portrayed.

I stand ready to correct any misstatements above; I always respond to corrections. In this case, however, while I do not doubt that Bishops Lawrence, MacPherson and perhaps others raised their doubts about the constitutionality of the Title IV changes during the discussion at the Kanuga Conference Center, I continue to have my doubts about the balance of the presentation.

First of all, readers should note that the coverage of the Title IV discussions was pretty much nil in the blogosphere; apart from Bishop Epting's blog, which I quoted above, there is only this post by Bishop Lane, and this brief Tweet by Bishop Prior. The daily official summaries from the House of Bishops contain no mention of the discussions. And now, after some further research, I find out the reason why this is so.

It turns out that the sessions dealing with the Title IV changes were not part of the regularly scheduled House of Bishops meeting; they took place in the form of a pre-meeting "Short Course" put on by the College of Bishops for any diocesan bishops, their canons to the ordinary, and their intake officers who wanted to arrive two days early. Here is a link to a description of, and application to attend, the two-day "Short Course" -- note that a $450 tuition fee was charged. And please note who are the "Facilitators" for it (second and third bold emphasis added):

Facilitators
Representatives from the Nathan Network, Chancellors Network, Church Pension Group, the Title IV Education Task Force as well as noted psychologists and psychiatrists will be present.

The "Chancellors Network" is the shorthand name of the group consisting of those church attorneys who are the chancellors of the various Episcopal dioceses. Among their members are Duncan A. Bayne and Diane E. Sammons, both of whom served on the Title IV Task Force II on Disciplinary Policies and Procedures, which proposed the final Title IV revisions to GC 2009. Here is a link to a program of the 2010 meeting of the Chancellors Network, which shows on the third page that Mr. Bayne and Ms. Sammons gave a presentation about the Title IV changes to that meeting. Both Mr. Bayne and Ms. Sammons serve on the second group whose name I bolded above, the "Title IV Education Task Force". As I say, I stand ready always to correct what I report here, but I would certainly be surprised if neither Mr. Bayne nor Ms. Sammons (nor Bishop Dorsey Henderson, for that matter -- another member of the latter group) was among the "Facilitators" of the Short Course at Kanuga.

The reason for my belief is what the only available program for the event lists as "resources" for attendees, available on the Web. It includes the paper, of which Mr. Bayne is a co-author, on the constitutionality of the Title IV revisions posted here, and whose flaws I dissected in this post, in this one, and in this. It also references the criticisms of the Title IV changes authored by Mark McCall and C. Alan Runyan posted here and here, but not their latest and most thorough rebuttal, posted here. Finally, it references a brief exchange concerning an argument in favor of the Presiding Bishop's authority, to which Messrs. McCall and Runyon responded (this exchange must constitute the "discussions" to which Doubting Thomas's source referred).

To date, there has been no counter-response to these criticisms from the Title IV Education Task Force, even though I have an open invitation to Mr. Bayne to explain just how the shift to a metropolitan Presiding Bishop could be made via a revision to the Canons, instead of first amending the Constitution, in light of the history of all the previous attempts to do so as detailed in the posts linked above.

Therefore, while I would be happy to learn from any actual participant that there was a free and open discussion of the criticisms of the changes articulated here and by Messrs. McCall and Runyan, to date I have seen nothing that requires me to change the account I first gave above. If Chancellor Runyan or Mark McCall was actually afforded an opportunity to address the group, then I will happily make that correction; but it sounds as though the facilitators came entirely from the pro-Title IV side.

And please note the most important fact of all: there was no official action taken at the House of Bishops meeting itself concerning Title IV. The pre-meeting training was just that -- an indoctrination for all bishops, especially new ones, into the implementation of Title IV. No action is contemplated between now and July 1 to prevent or delay that implementation.]