Every two years, the Cooperative Election Survey asks 60,000 Americans a bunch of questions. Over the past four surveys (~240,000 validated Americans), here is how many babies women had in each of several major religions:1

Many Bothans died shrinking those error bars to a reasonable size.2

I could have pulled a similar chart from any number of existing sources. Many people have already asked the question, “How many babies do women in each religion have?” and they have posted their answers right here on the Internet.

Unfortunately, I think all their answers are wrong, because they aren’t asking quite the right question.

You know the saying, “All models are wrong, but some are useful”? I think the basic model we have for surveying religion in the United States is not the most useful way of looking at American religion.

Indifference is Not Religion

The typical American religious pie chart looks like this:

(Note to email readers: over on the webpage, you can interact with this pie chart! Turns out the Datawrapper plugin is open to every Substacker, not just Nate Silver!)

However, the majority of self-identified Catholics in surveys are not “Catholic” in any useful sense. Most “Catholics” in surveys are only Catholics in a cultural sense. It is part of their background, their family story, but makes little actual difference to what they believe or how they live. They pray sometimes, perhaps. Some even consider religion important to them! However, they live primarily as Americans, not as Catholics, practicing the standard Doesn’t-Matterism of 21st century America.

As I wrote just after the 2024 election:

Because cultural Catholics are basically just ordinary Americans who might say the Hail Mary once in a while, and because there are so many of them, when you poll “Catholics” without filtering for specifically religious Catholics, you’re basically just getting a random sample of ordinary Americans. Their polling responses are basically always pretty much exactly the same as polling results for normal Americans, unless you ask them about St. Patrick’s Day or tacos.

(That’s the other thing about Catholics: churchgoing or not, we are disproportionately White—specifically Irish—and Hispanic.)

Whenever someone shows you a chart about Catholics, with no filtering, you’re usually better off cutting out the middleman and just looking up a chart about Hispanics and Scots-Irish instead.

I don’t know whether this is as pronounced in other religions as it is in Catholicism, but every religion has people who identify as part of it without living like it. The great Ryan Burge has single-handedly changed how we think about Evangelicals simply by pointing out how many cultural Evangelicals there are—and how much they (increasingly) differ from devout Evangelicals.

When I see graphs about religion, then, I always want to factor out the people who aren’t actually all that interested in their self-reported religion.

Definitional Problems

Unfortunately, it’s not a simple matter to identify these “Doesn’t-Matterists” or “Indifferentists.”

First, in reality, indifferentism lives on a spectrum, so any line we draw between “indifferent” and “devout” will be arbitrary. No matter what we do, we’re going to count some people as “indifferent” who should count as “devout” and vice versa.

Second, definitions of what makes one “devout” will vary from religion to religion. For example, as a Catholic, I considered defining an “indifferentist” as “someone who believes it is morally acceptable to use artificial birth control,” which is a key fault line between devout Catholics and cultural Catholics. However, that definition would hardly work for Protestantism, where even the devout accepted contraceptives wholesale between 1930 and 1970. Maybe I should define an “indifferent Protestant” as someone who rejects Biblical inerrancy? But then how would I define indifferent Jews? Or, for that matter, how would I then define indifferent Mainline Protestants, since most of the Mainline rejects Biblical inerrancy? And so on. Even if this didn’t thrust me into the doctrinal minefields of a dozen religions I don’t even belong to, defining indifference as a matter of heterodoxy is simply unworkable.

Third, indifference is not quite the same thing as heterodoxy. Lots of Catholics who contracept are very invested in their religion, show up to Mass every week, and are very upset about the Church’s teaching. You could call them heretics, you could call them sinners, but you can’t call them indifferent!

America’s Common Hour

One striking commonality among major American religions is the requirement to go to church every week.

In Catholicism, failure to attend Sunday services without a serious reason is (ordinarily) a mortal sin. Protestantism inherited this rule from Catholicism. While their various denominations have transformed the rule in many different directions, there remains a strong expectation in most of Protestantism that the faithful will attend Sunday services weekly. Jehovah’s Witnesses have no “official” attendance requirement, but anyone not in the pew weekly will get hounded by their elders. Muslims have rigid weekly attendance requirements at mosque. And so on.3 Certainly there is a strong correlation between non-attendance and indifference to doctrine, indifference to prayer, indifference to religious disciplines, and so on.

That, then, is where I have drawn the line. People who attend religious services “once or twice a month” or less are the group I consider “indifferent.”4 Once you account for this, the religious pie chart from before shifts a lot:

Religion Minus Indifferents

Of course, I could make a pie chart showing allllll the different types of religiously indifferent Americans: the indifferent Catholics versus the indifferent Evangelicals versus the indifferent Jews, and so on. In fact, just for you, I’ll do that in this footnote.5

However, in my experience, all else being equal,6 the religiously indifferent from have more in common with one another (religiously speaking) than they do with their self-identified co-religionists. (Their actual religious beliefs tend to all boil down to Moralistic Therapeutic Deism.) So I have opted, on this chart, to put the indifferent from all faiths into their own giant pie slice.

I think this is, for most purposes, a more accurate representation of the true religious currents in the United States. America is mostly divided between the Nones and the Moralistic Therapeutic Deists. (I have not checked their political alignments, but suffice to say I have some suspicions.) There is no moral majority. There is a rather meagre minority, often divided against itself on important questions. No wonder it often feels besieged.

The share of devout Catholics in the U.S. is not one-fifth to one-quarter, as is often reported, but about one-twentieth. Catholicism is a rump religion. Its numbers are inflated by its powerful cultural influence, which lingers, sometimes for generations, after its former adherents have, for all intents and purposes, abandoned Rome. What cultural Catholics do and think does not necessarily indicate what practicing Catholics do and think.

The Protestant Mainline, once the dominant religious and cultural force in America, has for all practical purposes ceased to exist.

Even the Born-Agains don’t look too hot by these numbers, although they are (clearly, by far) the largest and most influential religious group in America, more than double the size of the Catholics.

So this chart—the truer chart, in my opinion—presents a lot of food for thought.

However, today, I only care about fertility by religion.

Fertility by Religion, James-Style

In conclusion, here is the fertility chart from the start of the article, but now with Indifferents factored out:

This… isn’t that different from the original chart, is it? What do you call it when you finally ask the right question, but get the same answer?

It’s worth examining this in a little more detail:

There are two interesting patterns here:

First, religious involvement is associated with fertility. This is well-documented and not a surprise, but it is still satisfying to see the effect holding consistent across religions. Churchgoing Catholics are more fertile than Indifferent Catholics, Born-Agains than Indifferent Born-Agains, and so on. This relationship gets muddy in a few places on the chart, but I think we can chalk that up to small sample sizes causing large margins of error.

Second, religious involvement’s association with fertility, while real, isn’t that strong. When I rendered this chart, I expected to see a chart where all the “devout” religious cohorts were at the top, in order, followed by all the “indifferent” cohorts at the bottom. For example, I expected Indifferent Mormons to be more fertile than Indifferent Catholics, but I expected Churchgoing Catholics to be substantially more fertile than both.

The reality is close to the opposite! Over and over again on this chart, the Churchgoing and Indifferent bands for a religion are found right next to one another. Churchgoing Mormons are more fertile than Indifferent Mormons… but Indifferent Mormons are still more fertile than everyone else. This suggests three theories:

1. Fertility is driven much more strongly by demographics (race, income) and culture (what your neighbors are doing, the messages you receive) than by religious practice or belief.

2. The people I’ve labeled “indifferent” aren’t as indifferent as I thought, and many continue to be believe and practice in limited ways even after abandoning the standard practice of weekly attendance.7

3. The people I’ve labeled “indifferent” really are indifferent—but they didn’t used to be. They were raised devout, had some or all of their babies while devout, and then became indifferent, when it was too late to have an impact on their fertility.

As always, the true reason for this result is probably a mix of those theories, plus several others I haven’t thought of.

That’s all! Mormons have lots of babies, Buddhists don’t, news at 11. This post was merely a stepping stone to another post still in the works.

I’ve shared the code behind this post on my GitHub.8

2

(This long footnote is all just talking about data and process. Pretty boring. Lots of pictures, but I put all my best and truest pictures in the main article.)

I started out by just looking at women in the 2024 Cooperative Election Survey, which got me this chart:

Some of these error bars are fine! There are 1,617 religiously unaffiliated women represented in the Nones bar on this chart, which is plenty to give us a good reliable estimate of how many children non-religious women had, on average.

However, in the entire 60,000 person sample, there were only 22 Muslim women aged 44-55. That makes sense, demographically! Muslims are less than 1% of the population. But the result was a 95% confidence interval that ranged from 1.11 child per Muslim woman all the way up to 3.84 children per Muslim woman. In other words, because this sample was so small, Muslims could quite plausibly be anywhere from the least fertile religion to the most fertile religion. Jehovah’s Witnesses (Observations in sample: just 12) are even worse. Holy error bars, Batman!

I first tried to correct this by widening the sample, counting men and expanding the age range:

The benefit of this approach is that it really does give us a lot more data. There are 38,943 people in this sample, versus just 4,530 in the previous sample. That shrinks the error bars a lot!

The problem is that it sweeps in much, much older data. A 100-year-old Catholic woman who had her last baby in 1961 will now be included in this sample—but Catholic fertility was considerably higher in 1961 compared to today, which means this paints a less accurate picture of religious fertility today.

The expanded sample also sweeps in some younger women who may not have completed childbearing yet, artificially lowering the stats for religions where women tend to have their kids later in life (like the Nones).

The other thing I just don’t like very much here is including men. Men don’t have the babies, they can have babies at all ages, and it’s apparently well-known that they systematically underreport their number of kids to researchers.

A few years back, Ryan Burge, the gold standard in graphs about religion, asked a similar question (with the CES 2020 rather than the CES 2024), but he took a slightly different approach: he looked at 35-45 year-old adults who had children in the household (ignoring adults who had no children, which obviously raised his averages!):

He had some really tight error bars on that, so I looked into it for a while in hopes of replicating his work, and then building off of it.

I did manage to replicate his findings, but not his error bars:

You may be wondering why Burge’s error bars are so much smaller than mine, even without pooling.

I’m wondering that, too! Clearly, I’m not as clever as I thought (yet).

In this particular slice of the CES 2020 (35-45 y.o. adults of either sex), there’s only 45 observations of Muslims (whose weights sum to just 39.9), so there must be some math I don’t know about allowing Burge to be more confident in his averages than I am. Alas, I stopped after Statistics 101 because the intro course was all my major required!

I then tried using the Cumulative CES 2006-2024, even though it would have dragged in a lot of extra data from earlier times that I didn’t really want. However, the Cumulative CES doesn’t even include the fertility variable, so it was useless to me!

Eventually, I discovered that, as long as the underlying data are extremely similar, you can use math (something called inverse-variance weighting) to pool multiple surveys together. At first, this was very cool. However, it had some drawbacks. The main thing inverse-variance weighting does is give extra weight to “stable,” unvarying samples. In one wave, though, there was only one (1!) Orthodox woman in the age range and who attended services regularly. She had three kids. Since there was only 1 woman in that sample, the math said this sample was infinitely stable (because every woman in the sample had 3 children!). So the weighting equation discarded all the other data from other Orthodox women in other waves, gave 100% of the weight to this one woman, and confidently informed me that the average Orthodox woman has exactly three children, with zero need for a confidence interval.

You can see this chart is doing something similar to the Jews. Not quite as bad, but similar problem: one wave randomly got just a few Jews with no kids, which was technically a low-variance sample and therefore ended up with 78% of the weight.

Finally, I learned that you can pool a survey reasonably well by combining their results and rescaling their weights. This isn’t perfect, either, but it appears to avoid the inverse-variance weighting problem. Hopefully I did it right! (You can check it out in the GitHub code at the bottom of the article.)

This article was a crash course in stats, much more than I expected at the outset.

7

I did test for this a little, by trying out a narrower definition of “indifference.” In this chart, you count as churchgoing if you attend at least “a few times a year”. You only count as “indifferent” if you attend “seldom” or “never”:

As you can see, the pattern (mostly) holds. Churchgoing members of a religion clump together in bands with their Indifferent brethren, even when we redefine “indifferent” to count only those fully severed from the regular practice of their faiths. Fertility-wise, Indifferent Catholics are much closer to other Catholics than they are to Indifferent Jews. This continues to surprise me.

Another theory: maybe my definition of indifference was too narrow. Maybe a ton of the weekly pewsitters aren’t really involved in the religion, but are just going for something to do! (Not a very likely theory, but I was exploring the data.) So I tried redefining “indifferent” one more time. This time, anyone who attends weekly or less is considered “indifferent.” Only the extremely devoted people who go to services more than once a week count as Churchgoing here:

The error bars have gone crazy here, because the samples are so so tiny, but the pattern holds! Even the few extremely devoted Catholic women who go to Mass twice a week or more (they’re more devout than I am, that’s for sure!) still have fertility that hovers around the national average. It seems religious practice just doesn’t seem to make that big of a difference in how many babies you have! Demographic and cultural factors dominate!

“Letters to My Daughters” is a series of letters I will send my children, when they are teenagers, about our (Catholic) religion. They are, of necessity, opinionated, and, in light of their audience, paint certain things as I truly see them, but without some of the nuances I would explore if aiming at the general public. Of course, your feedback and advice are welcome, or I wouldn’t be posting it in public.

My dear daughter,

There we are! Now that we’ve escaped the swamps of Mechanical Materialism, I can finally show you some of the Quest, free and clear!

But… where do we start? When I set out on my own Quest, I spent about ten years wandering around, confused. There are so many possible starting points!

• Descartes: “I think; therefore, I am.”

• Thales: “Everything is made of something, except the thing everything is made of.”

• Kiri-kin-tha: “Nothing unreal exists.”

• Hume: “All ideas are derived from impressions.”

• Marx: “I’m bored at work.”

If you choose to undertake the Quest yourself, this period of wandering around is inevitable. It’s also indispensable. Many of these starting points lead to dead ends, and several of them are flat-out wrong, but you learn a great deal from the encounters anyway. (Usually. The only thing I learned from reading Karl Marx is that Karl Marx was an angry baby.) There is no single, exclusively “correct” starting point, either. One true starting point might lead you to truth about ontology, while another might lead you to the truths of ethics. This is the joy of the Quest, should you choose it for yourself.

However, since I am trying to give you a short, directed tour here, I will suggest the starting point I’ve found most useful. It was given to me by your grandparents, and now I pass it on to you. This particular starting point comes from Plato’s greatest student, a Greek scientist-philosopher named Aristotle.

As a scientist, Aristotle loved studying the world around him, so many Aristotelian starting points are observations about the world. That includes our starting point for today:

• Aristotle: “Some things change.”

This seems hard to deny. Lots of things do change! A rock in a river becomes smooth. Once a year, without fail, my face becomes sunburned. (These are both changes of quality.) Every day, you grow a little, and, every time I make hamburgers, they shrink in the frying pan. (Changes of size.) When we start a bonfire in the backyard with newspapers as kindling, we create fire and ash but destroy the paper. (These are changes of substance.) When I toss Sophie or Spider Pillow across the bedroom to you because you’ve forgotten them in some god-forsaken part of the house at first tucks, they are changing velocity (and, consequently, changing position as well).

Aristotle doesn’t assume that everything changes. He never says anything like that. He simply observes that some things change.

Aristotle noticed two things about these sorts of changes. These things are obvious, but Aristotle was the first to put them into words. That made Aristotle kind of a big deal!

(DAD’S PRO TIP: If you want to make bank in philosophy, just be the first person in history to write down something really obvious! You’ll die poor, because it's impossible to make bank in philosophy, but people might name things after you when you’re dead!)

The first thing Aristotle noticed about change was that, in each change, something that possibly could be becomes something that actually is. For example, before the change, my hamburger could be smaller, then it changes, then it actually is smaller. This process of actualization takes time.1 The amount of time varies. If you drop a rough rock in a river, it will take years for the river to make it really smooth. My annual sunburn happens in hours. When I toss your guys across the room, it takes only seconds for them to cross the floor—and only milliseconds for them to stop moving (a second change!) when they hit the bed. Nevertheless, in every change, the world starts with something possible and, after some amount of time, ends with something actual.

The second thing to notice is that each change requires a changer. I have pale Irish skin and poor discipline about reapplying, so I always have the possibility of sunburn, but my (possible) sunburn can’t cause itself. How could it? It doesn’t exist yet! A mere possibility cannot affect the world! Only actual things can affect the world. My possible sunburn is made actual (every single year) by actual ultraviolet radiation, emitted from the actual sun. (This is followed by Sabina telling me I should have put more sunscreen on at the safety break.)

This is true for all our examples. The rock we dropped in the river is made smooth by the (actual) river. The bonfire is lit by an (actual) burning match. Your guys are thrown by the transferred motion of my (actual) arm. The hamburgers are shrunk by (actual) heat, which causes (actual) moisture in the patty to boil off. You got tall enough to ride the roller coasters at Valleyfair because your (actual) bones got longer, because your (actual) bone cells reproduced.

In Book VIII of his Physics, Aristotle works through several logical proofs to make sure that, yes, every single change requires at least one changer. These proofs are good fun, but also… duh!

This leads us to the question where things start to get interesting: since there are all these actual changers going around causing changes, what made the changers actual in the first place?

Logically, there are only two inescapable possibilities. Either a changer became actual because some other changer made it actual… or the changer never became actual, because it was always actual. There is no third option.

It seems like, usually, changers are made actual by some other changer. For example, you got taller because your bone cells started making more bone cells. What made that process actual? Growth hormones, which communicated with the cells to tell them to start making more cells. What made the hormones actual? The (actual) pituitary gland made them, because your (actual) nutritious diet included enough proteins to fuel production, using food grown by the (actual) sun and rain, and so on.2 For all of these changers, they were made actual by another changer. None of these changers was always actual.

However, this chain of changers cannot go backward forever.

Of course, there are some things that can go backward forever, like the list of all negative numbers, or the length of a line that you cut in half over and over again, or you guys when I tell you it’s time to get ready for bed every night.

However, a chain of changers, where each changer depends on the changer before it, isn’t one of those things that can go backward forever. If a chain of changers went backward forever, then there would be nothing to get the whole series started in the first place. It would be like a train with an infinite number of boxcars but no engine. If you saw such a train moving and asked, “What’s pulling the boxcars?” and Sir Topham Hatt said, “Each boxcar pulls the boxcar that’s behind it,” you would correctly reply, “Yes, but what’s pulling the first boxcar?”3 You know full well that there must be a first boxcar, and there must be something pulling it, because otherwise the train wouldn’t be moving at all.

Or, again, it would be like a line of dominoes extending backwards into unknown mists far in the distance. If you see the dominoes tumbling toward and past you, you know right away that, somewhere in that long chain of dominoes—even if the line is infinitely long—something caused one of the dominoes (maybe the first domino, if there is one, or maybe some other domino in the line) to fall over, strike the next domino, and begin the chain reaction. If nothing had made one of the dominoes fall over, then no dominoes would be falling, and you would not have seen the domino chain reaction fall past you.

It’s the same with all the other changes we’ve seen. Every change requires another changer, and, so far, every changer we’ve seen is only explained by yet another changer. Eventually, there has to have been something that started the whole chain going, or the domino line of changes we see in the world around us couldn’t be happening.

We are forced, then, to face the other possible explanation for a changer. As I said, logically, there are only two possibilities: if a changer didn’t become actual because of some other changer making it actual… then it must be the case that the changer never became actual, because it was always actual. There is still no third option. Aristotle realized that every single change we see in the world today can only be explained by something that has always been actual. When we see any change, either it is directly caused by something that has always been actual, or it is caused by some other changer. If it was caused by some other changer, then that changer must either be caused by something that has always been actual, too, and so on until—inevitably, inescapably—we arrive at some changer that has always been actual, an Unchanged Changer. Aristotle proved that at least one Unchanged Changer must have always been actual, as a bedrock logical certainty.

“Always” is a big word. We don’t know whether time had a beginning. Some physicists think yes, others no. If time has no beginning, then any Unchanged Changer must have been actual from all eternity. If time does have a beginning, then time itself has changed, and any Unchanged Changer must have been always actual before (and therefore beyond) time itself. Science and philosophy also cannot say whether the universe has always existed, or whether it has always been changing. (Aristotle thought yes.) We have no information prior to the final 10^-32 seconds of the cosmic inflation period, and it may be in principle impossible to ever find out. All we can say at this point is that, if the cosmos has always existed, any Unchanged Changer was part of it.

Now, you might be thinking, “Oh, that sounds like God. Is that God?” You might even be rolling your eyes—I can perfectly imagine your face from here, years in advance—and saying, “Yes, Dad, I know it’s God, they taught me this in sixth grade ugh you can stop trying to be so sneaky about it.”

True enough. We pay the big bucks for Catholic school so that you are exposed to these ideas early and often. Mrs. Quillan did a great job covering this in sixth-grade theology.4 However, that was the sixth-grade version. When you learned this argument, it ended here, with “…and the Unchanged Changer is God.” You simply have to take shortcuts when teaching sixth-graders philosophy. However, you’re older now, and I’m preparing you for the rest of your life, so we can’t take that shortcut today.

When I was in a ninth grade study hall period in the St. Thomas Academy library, I came across a book of collected readings in philosophy. In that book, I read a lecture by the mathematician Bertrand Russell called, “Why I Am Not A Christian.” Now, you mainly know Bertrand Russell as the inventor of Numberwang, but he was a brilliant and amiable mathematician. He was also an atheist. In his lecture, he talks about the proof I have just given you:

It is maintained that everything we see in this world has a cause, and as you go back in the chain of causes further and further you must come to a First Cause, and to that First Cause you give the name of God. […But!] If everything must have a cause, then God must have a cause. If there can be anything without a cause, it may just as well be the world as God, so that there cannot be any validity in that argument. It is exactly of the same nature as the Hindu’s view, that the world rested upon an elephant and the elephant rested upon a tortoise; and when they said, ‘How about the tortoise?’ the Indian said, ‘Suppose we change the subject.’ The argument is really no better than that.

When I was fourteen and read the whole lecture, these two points hit me hard:

• “If everything has a cause, God must have a cause.” (Thanks in part to this lecture, this objection is broadly known all over the world today as “turtles all the way down.”)

• “If there can be anything without a cause, it may just as well be the world as God.”

These points troubled me, and led me to abandon Aristotle’s unchanged-changer argument for several years. (I took refuge in St. Anselm, Pascal, and Descartes, who were also in that book—although I’m a bit embarrassed about it today—and in C.S. Lewis.) It was not until college that I started taking Aristotle seriously again, and it still took me months of reading to slowly become convinced he was right after all.

I hope, though, that you have already spotted the obvious hole in Russell’s first objection: Russell says that Aristotle’s argument claims that everything has a cause. That’s false! As I pointed out earlier, Aristotle’s argument simply observes that some things change, and those changes have a cause. He never assumes that everything has a cause. For Aristotle, things that don’t change don’t need causes. Russell has completely misstated this argument, to his loss! Unfortunately, I had been careless in studying this argument, so I missed Russell’s error completely. I spent years thinking a valid rebuttal to the Unchanged Changer was, “Oh, yeah? Well, who made the Unchanged Changer? It’s turtles all the way down!” If I’ve spared you that mistake, these letters are worth it for that alone.

The second objection, however, has more force. In fact, against the sixth-grade version, Russell is clearly correct. We have done absolutely nothing to show that the Unchanged Changer is God.

Indeed, Aristotle himself had no idea that the Unchanged Changer was God! Aristotle was a Greek pagan who lived 350 years before Christ. He probably never even heard of our God.5 That’s one of the things I admire so much about Aristotle: he tracked down the truth even without the benefit of revelation, with a mind unbiased by a monotheist upbringing.

Here are some of the many other things the Unchanged Changer could be:

• The universe itself

• Some random chunk of matter—say, one small piece of fairy cake (as used in the Total Perspective Vortex, before Zaphod Beeblebrox ate it)

• The Big Bang itself

• Zeus

• The entire Greek pantheon (Zeus, Hera, Athena, Poseidon, the whole gang)

• The Sun, worshipped as the prime creator power by several religions

• A whole host of immaterial nameless omnipotent Gods outside the universe

• Every single human mind could be its own Unchanged Changer. (Aristotle points out that his predecessor Anaximander taught exactly this.)

In the sixth-grade version, you don’t rule out any of these things. We must.

Continuing to follow Aristotle (and his medieval heir, St. Thomas Aquinas) we will continue this adventure in the next letter.

Unchangingly,
Dad

Here are all installments so far in the Letters to My Daughters / Letters to a Growing Catholic1 series:

• Letter #1: “The Truth and Nothing but the Truth, So Help Me God” — Against doesn’t-matterism. The truth matters a lot. (27 August 2022)

• Letter #2: “Faith is, Firstly, Reasonable” — Faith flows from reason, not in opposition to it. (2 March 2023)

• Letter #3: “The Leap of Faith is Not to Jump” — Faith holds you to reason, even when you don’t want to be held. (22 March 2023)

• Letter #4: “The Quest (and the Rest)” — Not all are called to a lifelong Quest for the Truth, and I will equip you for either calling. (14 June 2024)

• Letter #5: “Who Aren’t I? Why Aren’t I Here?” — We must free our minds from the assumption of mechanical materialism. (9 August 2024)

• Letter #6: “The One Thing It Ain’t Is Turtles All The Way Down” — an argument from motion (April 2026)

• Letter #7: “The Alien Entity” — (June 2026)

However, this year when we spoke, Frakes suggested an interesting theory. Perhaps, he suggested, the cameras were being shorted out by the charisma differential between us.

You see, cameras are perfectly fine filming me, and perfectly fine filming Frakes. However, when his electric charisma is contrasted with my “face for radio,” it sends the cameras on the fritz. (This struck me as logical.) The solution: rather than a traditional interview, which involve long soliloquies that risk building up a high “charge” in the charisma differential, this time we would sit down together and have more free-ranging conversation. That would keep the charisma differentials low and the cameras online.

Like a fool, I agreed.

As I soon learned, Two-Takes Frakes is a lunatic. He cannot hold a discussion thread together for more than a few seconds. His idea of “conversation” is to emit a koan and then stare at me uncomfortably for several seconds waiting for my reaction, before leaping to a new, wholly unrelated, koan, as if I’d never replied at all. During our entire interview, he blinked exactly twice, which was somehow much worse than never blinking at all.

Worse still, the rapid-fire camera movement between him and I seemed only to build up the fatal charisma differentials even faster. Not only am I, once again, invisible on this tape, but the quality of what’s left is visibly degraded!

Oh, well, fool me once, shame on you, fool me twice, shame on me, fool me thrice, you fool me, it can’t get fooled again.

I here attempt to reconstruct some of what I said to Frakes to keep our bizarre “conversation” afloat, and I must say I’ll be actively looking for a better way to spend my April 1 next year. My best to Jonathan on his budding career, but I’m afraid I can’t keep helping him out like this.

On to the interview:

Our hatred for this reptile goes all the way back to the dawn of civilization.

Wait WHAT?! That’s a huge snake! Where did that snake come from? Where were you keeping it when you came in and sat down and I offered you a soda?! Wait, is that a rattlesnake? No, you— no. Out. Get it out. Yes, I’ll hold your Mr. Pibb, it’s fine, just—

Chess is more than a microcosm of war.

The more I play games, the less I think of chess as a microcosm of anything. Chess is, in its own way, quite a beautiful game. From a single, fair, simple, consistent starting position, the application of just a handful of rules (which you can fit on a single page of paper) blossoms into a staggering array of possible, yet delightfully finite, outcomes. However, your opponent has the same access to those possibilities as you do, so the only sure way to outmaneuver him and carry the day is to outthink him. This is a lot of fun.

However, everything that makes chess beautiful also makes it alien to any actual human experience. Take war, for example. War is never fought from a fair position. The sides are never perfectly matched. Even in an even fight, each side will have advantages and disadvantages, which create an asymmetry in every conflict. The rules, such as they are, are often discovered in-flight, are constantly evolving, and (between combat, logistics, strategy, politics, finance, morale, technology, and a thousand other considerations) would fill all the books in the Library of Alexandria while barely scratching the surface. The possibility space of war is not actually infinite, but it’s close enough.

I find myself gravitating today more towards games that open up more possibilities. I don’t doubt that, someday, the LLMs will be just as good at the Star Trek card game as the world’s best players, but there is so much more rich variability in a game like that compared to chess that I suspect Trek’s AlphaGo moment is still a ways off. I am particularly attracted to games (like Trek) that involve building a custom deck beforehand, because so much of the outcome is then determined by choices made long before the first turn begins… much like in a real war!

Cakes are more than just a delicious way to end a meal.

No, cake sucks.

I love sweets. When playing Santa Claus / the Easter Bunny and filling stockings / baskets, I deal myself in for an even share of the loot. When my wife goes in to Regina’s Fine Candies to buy me my birthday present, the woman behind the counter invariably asks if it’s her “usual order.” (My wife does not eat candy.) I bake two Sweet Martha’s Gourmet Chocolate Chunk cookies to eat hot out of the oven almost every night right before bed, a tradition I’ve had now for nearly twenty years.

Cake, however, is a very dull dessert. It’s so fluffy that much of it is just air. It’s less a delectable sugar explosion and more like mildly sweet bread. I like bread a lot, but it’s no dessert. Frosting can help break up the monotony of a slice of cake, but usually it’s heavily concentrated at the top, with perhaps a thin layer in the middle, so you’re either getting a boring mouthful of sweetish bread or you’re getting an intense mouthful of frosting that crowds out everything but the sugar taste. You want a dessert to spread its tastes through every bite, like a well-mixed Cold Stone ice cream or a DQ Blizzard. In that sense, cake just isn’t fit for purpose, even if its tastes were really exciting, which they mostly aren’t.

I have a rather daring theory about this:

I think cake is beloved because of cultural heritage. People long ago had no great desserts (many of our ancestors had the misfortune to be British), so they hit on this pretty mid dessert, lost their minds for it, and passed on that excitement to their kids, who are inculturated into loving cake before they have the critical faculties to realize that cake is pretty boring. Of course, we all like cake and I don’t deny that some of us legitimately love it, but I tend to opt out.

Flourless dessert tortes often solve many of these problems simply by increasing density, so I will go for a torte, but what I actually have as a “birthday cake” at my birthday party every year is a bowl of raw cookie dough dumped on a plate with candles stuck in.

I highly recommend it.

Books can be viewed as food for the mind.

True enough!

Fiction is the queen here. Non-fiction is good and much of it is formative in important ways. Where would I be without Doris Kearns Goodwin’s Team of Rivals or Elie Wiesel’s Night in the back of my head? How does anyone make sense of a classic Call of Duty WWII campaign without having read Stephen Ambrose’s Citizen Soldiers? Nonetheless, fiction can’t give you the full picture of humanity the way a good tale can. On the other hand, reading is in such free-fall at the moment that I’m not really in a position to have that argument. Reading’s not even losing to other storytelling mediums, like television, film, or single-player video games. It’s getting replaced by short-form video and Steal a Brainrot multiplayer slop. I really don’t know what our civilization will look like if those become our common texts instead of Pride & Prejudice and The Lord of the Rings. But whereof one cannot speak, thereof one must be silent, so let’s move on.

In the age of communication, we can always be reached.

In 2026, this is becoming less true every day.

As a culture, we are becoming paranoid to the point of hysteria about our “private” information. As individuals, we are becoming too fragmented to find one another.

I’ll give you a for-instance. A few weeks ago, I found a CD wedged underneath a drawer, where it must have fallen years prior. It clearly belonged to the last person who lived in my house. I knew her name because the CD was lodged next to some eight-year-old medical bills. The CD appeared to have sentimental value to the owner, so I resolved to give it back to her. In the 1990s, this would have been straightforward: knowing her first and last name, I would have looked her up in the White Pages. (She had a rather distinctive name.) The White Pages would have listed her phone number. I would then have called that phone number, told her about the CD, asked her if she wanted it back, and, if so, arranged a pickup.

In 2026, this was impossible. I spent two days trying to track down her contact information through the Internet, looking for mutual friends on various social media networks. Once upon a time, everyone was on Facebook, but Facebook is dying. Lots of people are elsewhere, and lots of people are nowhere. The death of landline telephones has made tracking phone numbers nigh-impossible, even if the White Pages still existed. I wasn’t willing to pay $20 for some online “public records lookup” to send me a list of suspected phone numbers that may or may not prove out. In the end, I got lucky and found a local address linked to one of those “public records lookup” companies, and her niece was a year ahead of my wife in high school, so I was able to do a little Facebook stalking through the niece to confirm the match. The address was an assisted living facility, so my only way to return the CD was to sneak into the building (the doorbell went unanswered), find her room, and hand it to her personally. She was first annoyed that someone was knocking at her door, then surprised, then quite pleased when she realized what I’d done. But boy I would have loved to just phone her and save myself all the trouble!

Even among friends and well-known contacts, I used to just have to track their phone numbers. Now, I have some friends who have landlines and can’t receive texts (although not many), some who have cell phones and only accept texts, some who mostly answer email, some who ignore email and only answer Facebook Messenger, some on Discord, and one exclusively on WhatsApp. If I ever lose his number from WhatsApp, I will probably never speak to him again. I’ve had to start taking notes on my friends, not to remind myself of their numbers and/or screennames, but only to remind myself which messaging service to use to contact them!

Another example: universities used to all have public directories. These directories listed basic information about contacting current students: their names, ages, class years, phone numbers, email addresses, and mailbox numbers. This was such a normal and indeed important part of life that FERPA, the giant federal privacy law governing higher education, has a giant exemption carved into the heart of it allowing “directory information” to be shared with the general public. However, in the last fifteen years or so, not only have universities all but eliminated these directories, but the very idea of allowing people to know that an individual student so much as attends the school has become an affront. (“What if they’re dealing with a stalker?” Well, we can always just take those specific students out of the directory!) Publishing actual student contact information? Beyond the pale. People who had all this info published about themselves a couple decades ago and never gave it a second thought now think you’re inviting murder and mayhem if you confirm a given student’s dorm number without a form signed in triplicate.

I don’t know exactly whom to blame for this. School shooters? Online scammers? Our suffocating culture of safetyism and/or liability avoidance? Perhaps it’s just the 15-minutes-of-fame phenomenon, pushing anonymity shields created for celebrities into the mainstream because any one of us could suddenly find ourselves facing down an Internet cancel mob of thousands.

Whatever the cause, though, in this age of communication, we are actually getting quite weird about anyone daring to actually communicate with us. I don’t think we talk about this enough.

A game of cards reflects life itself.

I… I know. I already said that, didn’t I? When we were talking about chess?

An organized workspace is a must.

This is true. My wife touts her ability to look around a messy counter and just find stuff on it, and she is quite good at it. It took me years to realize, though, that she had no magic powers in this department. If a cabinet got sufficiently crowded or messy, she would lose track of what was in it and put things on the grocery list that we already had, no matter how good her eyes were at picking things out. Eventually, “heap management” as a form of organization always fails!

Don’t listen to people who call it “OCD” or “autistic” if you need to organize a space before you start working in it! This is received wisdom hundreds of generations old, practiced in every professional shop I can think of, and just obviously true. It’s harder to get work done if you don’t organize first. One can go over the top with this (which can become pathological), but this is another area where our culture has gotten weird and prickly about normal human operating parameters.

A dream about driving might be a statement of independence.

But it probably isn’t. Dreams mostly have no meaning and reveal nothing. Freud is mostly bunk, and prophetic dreams are rare.

A true archaeological find is like winning the lottery.

What does this mean?

Does it mean that you can make a lot of money off finding an important primitive humanoid skull in your back yard? I suppose you can, but it requires a certain amount of savvy, a really good find, clear legal rights in your favor (rarer than you might think), and is frowned on by both professionals and Indiana Jones.

Does it mean that a good find significantly increases the sum total of human knowledge and prosperity? Perhaps it does, but lotteries don’t. Each lottery has one huge beneficiary, but that’s paid for out of the prosperity of hundreds or thousands of others. None of them are better off for it. Some of them are addicts, losing their lives to gambling. The state extracts some pittance of the lottery to inefficiently spend on birds or something, but, net-net, lotteries are bad for mankind.

Does it mean, then, that finding a big archeological discovery is going to lead to a ton of paperwork, and probably lawyers? That, I admit, does seem probable.

If someone takes their picture, they steal your soul.

Bad news for Hollywood actors, Frakes!

…but also explains a good deal about Hollywood in general, now that you mention it.

The better you look, the better you feel.

You know, there is something to this. That may be surprising, coming from me, given the intense apathy I expressed toward clothing last year. Yet there does come a point in the day when you’ve been in sweats and a bathrobe for too long. Even though clothes don’t matter to you, a self-image forms, and I don’t like it. The image usually includes stink lines, often unjustly. Then I put on real clothes and do, in fact, feel better. If I put on a suit, better still.

My suit is tailored,1 and that counts for something, too. It fits really nice, better than any other clothing I own. That just feels smart, physically. It may also project a message to everyone else in the area, but the clothing’s physical feel, I think, is doing a lot of the work here.

Hospital rooms can be drab, depressing places.

Can’t argue the point, but putting up one crucifix helps a lot.

The crucifix is a particularly good symbol to bring into a place of suffering. It reminds simultaneously that one is accompanied in that suffering, and that the suffering leads to something better. Losing sight of that leads to despair, I think.

Annnnnnd that’s all I got! I know that’s only half of my conversation with Frakes, but the rest of the tape recording I have appears unsalvageable.

Perhaps I’ll be able to repair it, but I estimate it would take a team of technicians working on it for (at a very rough estimate) somewhere between 364 and 366 days. I know that’s a huge range, but repairs are very tricky to predict.

For now, thanks again to Jonathan Frakes… I guess… for sitting down with me… again. I am being told that we do have a clip Jonathan wants to share tonight from one of his directorial projects, so I’ll leave you with that:

As for me, it’s time to bake a couple cookies!

DE CIV NEXT VOYAGE: I apologize for my three-week silence. I had a very productive February followed by a much quieter March, and I have been feeling guilty about it.

Aside from this annual April Fool’s treat, I have been working hard on the next installment of Letters to My Daughters, which has proved fiendishly difficult. If I do my job well, the final product will look easy-breezy—even shallow—but let me assure you I’ve been rewriting paragraphs over and over again! Speaking about metaphysics precisely, clearly, and concisely, all while staying age-accessible is no easy task!

One way or another, though, I won’t let this drought continue. You readers are too important. Happy April and see you soon.

I talk to a lot of people on the internet, so the law of averages dictates that many of them are idiots.1 This is not their fault and I have spent decades practicing the habits of good conversation, even with idiots: listen closely, argue clearly, claim firmly, question gently, and pursue common ground aggressively.

For example, in the Catholicism forum on Reddit, I recently took the position that, if you have sex with your wife and penetration alone is insufficient to get her off, it is morally praiseworthy to use your mouth to finish her, and I cited 19th-century sources supporting the general principle to argue that it’s a long-established teaching. My view was generally well-received, but it also provoked one specific guy to message me several times a day every day since to inform me that he is praying for God to reprimand me for my blasphemy against the Virgin Mary. I am trying to be firm but kind,2 because that is how you persuade. It’s also how you learn. And it’s how you discuss important disagreements without going to Hell. After all, Christ warns us: “…whosoever shall say, Thou fool!, shall be in danger of hell fire.” (Mt 5:22)

Recently, despite all this, I lost my temper. A guy said something so stupid that I opened with an insult, doubled down by belittling him, got sarcastic, rejected any possibility of common ground, and generally tried to make him feel every inch of how stupid he was being. I knew it was bad and I did it anyway. I, who am understanding toward QAnon and gentle toward people who tell me they would take my kids away from me if they came out as trans, lost my crap.

So what unspeakable obscenity did this guy propose? Was he defending Jeffrey Epstein? Did he propose genocide of humanity for environmental reasons?

No. This man started by arguing that Donald Trump had done a good job preparing the American people for his war with Iran. Foolish, but I stayed my hand. He argued that Donald Trump had done a better job preparing the American people for a war than other recent presidents.3 Madness, but I told myself to be the bigger man.

Then this degenerate implied that the “recent presidents” Trump had outdone included George W. Bush.

And then I went at him.4

How to Start a Legal War

In January 2002, President George W. Bush gave the “axis of evil” State of the Union speech, which briefly enumerated the sins of Saddam Hussein’s Iraqi government:

Iraq continues to flaunt its hostility toward America and to support terror. The Iraqi regime has plotted to develop anthrax, and nerve gas, and nuclear weapons for over a decade. This is a regime that has already used poison gas to murder thousands of its own citizens—leaving the bodies of mothers huddled over their dead children. This is a regime that agreed to international inspections—then kicked out the inspectors. This is a regime that has something to hide from the civilized world.

With this, the Bush White House kicked off its campaign to win public, constitutional, and international support for a policy it had decided was vital to the interests of the United States: war with Iraq.

Over the next year, the White House made Iraq the center of an astonishingly long news cycle. Saddam Hussein was the TIME Magazine cover story on May 13… and again on September 16… and again on March 10. It was a constant feature in the news. Newsweek identified it as the top story of 2002, above even that year’s midterm elections. Heck, the midterms were, in large part, a referendum on the proposed Iraq War anyway!

On the international front, top administration officials made the pilgrimage to the United Nations to make the case, forcefully and repeatedly, that Saddam Hussein had violated multiple U.N. resolutions, including the ceasefire agreement that had suspended the Persian Gulf War. The U.S. sought new rounds of weapon inspections, acknowledgments that the agreements suspending the Gulf War were in breach, and a new U.N. Security Council resolution, Resolution 1441, which promised “serious consequences” if Iraq failed to avail itself of this “final opportunity to comply with its disarmament obligations.” In the U.S.’s view, the broken ceasefire, combined with a new Security Council resolution, would satisfy our obligations to peace under the United Nations Charter Treaty.5

Through a heroic amount of persuading, presenting, and (of course) lobbying, the Bush White House was able to win all three of its wishes. Res. 1441 passed in November 2002, eleven months after the Bush Administration began earnestly making the case for war. A few months later, Sec. of Defense Colin Powell’s presentation to the U.N. on supposed Iraqi weapons of mass destruction were riveting television the world over.

Meanwhile, domestically, the Bush team labored even harder to crack an tougher nut: the U.S. Congress. The House was under narrow but adequate Republican control, but the Democrats held the Senate, 51-49, and the progressive faction was already in the streets protesting the war. The White House launched a well-coordinated media campaign in September, hoping to convince voters and elected officials of the threat posed by Iraq. This outreach campaign was successful to an extent hardly imaginable today. The war resolution passed the Senate 77-23 (even Hillary Clinton voted for it!), and it got 296 votes in the House (the GOP only had 221 seats, 6 of whom voted nay). The Iraq War Resolution became law October 16, 2002, the product of months of hard political lifting.

The Iraq War Resolution was styled as an Authorization for the Use of Military Force (AUMF) Against Iraq. Since the War Powers Resolution, the AUMF has evolved into Congress’s modern way of exercising its constitutional power to “declare war.” Congress can use an AUMF to declare war directly, by authorizing immediate military force against specified enemies, or Congress can, through an AUMF, make a special, ticket-good-for-this-ride-only delegation of war powers to the President, authorizing him to use military force if certain conditions are met. Either approach satisfies the requirements of the War Powers Resolution, and either constitutes “declaring war” for purposes of Congress’s exclusive war-declaring powers under Article I, Section 8.6

Congress took the first, immediate path just after 9/11, when it declared war on al-Qaeda and all its affiliates in perpetuity. For Iraq, though, Congress made the AUMF take the form of an ultimatum: they did not allow the President to launch a war unless the President could certify to Congress that peaceful means had failed and that the war on al-Qaeda would continue full-force. They hoped this ultimatum, backed by Congressional war authorization, would convince Iraq to comply without war. However, if the President certified the conditions were met, the AUMF allowed him to initiate hostilities without further action from Congress.

The Bush White House recognized that both the U.N. and Congress had given one last chance for Iraq to comply with its ceasefire obligations, and the White House honored that insistence. The AUMF passed in October, the U.N. resolution in November. The U.S. then spent four months pressuring Iraq to comply, repeating its clear message on Iraq throughout that time, both for Iraq’s benefit and the American People’s. President Bush finally issued Saddam Hussein a globally broadcast ultimatum on March 17: leave within 48 hours, or we will attack. He did not. We launched a limited first strike 49.5 hours later,7 with the true opening attack (the “shock and awe” bombing of Baghdad’s military and leadership targets) arriving 45 minutes after that. By the time the bombs fell, Bush had already secretly transmitted to Congress his certification that peaceful means had failed, and his public notice under the War Powers Resolution was on their desks the next day.

We don’t like to remember this because of how the war went later, but, just before and just after the first bombs fell, the Iraq War was extremely popular:

Would you favor or oppose invading Iraq with U.S. ground troops in an attempt to remove Saddam Hussein from power?

• Favor: 64%

• Oppose: 33%

• No Opinion: 3%

-Gallup, March 14-15, 2003

***

Do you think the United States action in Iraq is morally justified, or not?

• Yes, is: 73%

• No, is not: 24%

• No opinion: 3%

-Gallup, March 29-30, 2003

This popularity had been built up over the course of a long, difficult year of presenting the case for war to a wide range of audiences, using the whole of the White House. The reason the Iraq War Resolution passed Congress was because elected officials had been, first, convinced by the arguments and, second, buoyed by the war’s popularity.

Now, the Iraq War was a mistake.

To be sure, great good came from it: Iraq has enjoyed more than 20 years of freedom. Although the cost in blood and treasure (for all concerned) was far higher than we expected, the government we built for them remains intact, and continues to govern. It has federalism, a parliament, and separation of powers. It has regular competitive elections. It has problems up the wazoo, but it no longer has Uday and Qusay Hussein’s rape-torture chambers for pretty women who catch the dictator’s eye. Saddam Hussein was responsible for the deaths of many thousands of innocents, and that regime has been replaced by a better one. (Not a great one. Don’t move to Iraq. But better.)

Nevertheless, the war was a mistake. The U.S. went in to topple the dictator, yes. Even in 2002, I considered that sufficient reason to attack. He’d gassed his own people! However, for most Americans, nation-building was a side project. Our main reason for invading was to dismantle Iraq’s weapons of mass destruction. That was the centerpiece of our argument for the war. When we got there, though, we found very few WMD, and the ones we did find mostly predated the first Gulf War. It gradually became clear that Saddam Hussein had actually been forced to abandon his WMD program in the 1990s, but had kept up noncompliance with the U.N. as a bluff, because he wanted his enemies in Iran and Israel to think he did still have WMD.

Unfortunately for Saddam, his bluff worked.

As the war turned sour, many people turned to the theory that Bush had lied about the intelligence and manufactured a WMD threat out of whole cloth, but every country and every intelligence service at the time agreed that Iraq did have WMD.8 That’s what Resolution 1441 said! In 1998, years before Bush even came on the scene, President Clinton had bombed Iraq for exactly the same reason.9 As I recall it, the only person who seemed to really think Iraq might not have WMD was Hans Blix, and I never thought too much of Hans Blix:

Iraq goes to show that you can have a legal war, based on a reasonable assessment of the available facts, supported by a just cause, with large-scale public buy-in… and the war can still be a horrible mistake.

This should make us even more skeptical of illegal wars, especially the ones that are missing some of those key ingredients.

How to Start an Illegal War

I’m told that, “You can actually just do things.” Apparently, this means you can just start bombing a sovereign foreign country one day, out of nowhere,10 without talking to Congress, without talking to the U.N., without making a case for war to the voters. Indeed, you can start a war by yourself, even though you campaigned on not starting wars, including this exact war.

Surely I must tell the voters something, you might think. To satisfy this residuum of conscience, you might find yourself posting a quick address to the White House website after you start the war, then cold calling reporters at random for the next week to give them a quote here or there, as a treat.

Sorry, did I say the White House website? Here in reality, the post-attack video actually went up on Truth Social, an obscure social media network used only by the White House’s sycophants.11

The end. War launched.

The Overlooked Just War Criterion

I frequently turn to Catholic thought on moral questions, not just because I am Catholic, but because the Catholic Church has done an awful lot of thinking about most moral questions, and has therefore gotten pretty good at it.

However, in the matter of Just War Theory, the Catholic Church has been so generally persuasive that the Catholic view (whether advertised as such or not) is a very common starting point for everyone talking about whether a war is justified or not. One way or another, most of its core ideas have found their way into international law. (In particular, Christianity has globalized the once-radical idea that wars of aggression are not a legitimate tool of statecraft, but a crime against humanity.)

The Church lays out the just war criteria in its catechism at paragraph 2309:

The strict conditions for legitimate defense by military force require rigorous consideration. The gravity of such a decision makes it subject to rigorous conditions of moral legitimacy. At one and the same time:

- the damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain;

- all other means of putting an end to it must have been shown to be impractical or ineffective;

- there must be serious prospects of success;

- the use of arms must not produce evils and disorders graver than the evil to be eliminated. The power of modern means of destruction weighs very heavily in evaluating this condition.

These are often summarized as: war must be necessary, a last resort, not futile, and proportionate.

However, evaluating these factors can be extremely difficult. Two good men may come to very different conclusions about one or more of them.

In Iraq, for example, many of us believed (as I did) that we would be greeted as liberators, that all human beings yearned for liberal democratic freedom, and that reconstruction would therefore be a quick and relatively painless affair. We were greeted as liberators, but not by everyone, and that minority made reconstruction painful indeed, and never entirely successful. Moreover, the Iraqi people did not, in fact, yearn for liberalism in the same way that we meant it.

Those who wisely foresaw a long, expensive reconstruction period in Iraq raised serious objections to the proportionality of the war, fearing that we might replace the great evil of Saddam Hussein with the even greater evils of endless, bloody civil wars. Those of us who had bet heavy on a quick, easy victory thought those people were being ridiculous; of course the Iraq War would do a lot more good than evil! I still think the war ultimately cashed out as doing more good than harm, but it’s a much closer call than I ever expected in 2002, and we must, at the very least, admit that the critics had some very good points.

Because the just war criteria are almost always disputable, the Church has one more criterion, which is often forgotten, because it appears at the very bottom of the paragraph, and not in a bullet-point list: competent authority.

The evaluation of these conditions for moral legitimacy belongs to the prudential judgment of those who have responsibility for the common good.

A wise and just nation creates power structures that make evaluating the just-war criteria a serious and difficult endeavor. A foolish nation places all that power in one set of hands, leaving the just war criteria to him alone. Either way, though, the power to evaluate the just war criteria belongs to the competent authority exclusively.

When someone without competent authority launches a war, then, the war is unjust, because the highly prudential calculus of just war has not been appropriately evaluated. For example, there have been several moments in our recent history where it was at least arguably justifiable for the U.S. to attack Syria.12 However, if the governor of Kansas had quietly activated his state national guard, sent them overseas, unilaterally declared war on Syria, and sent his troops in to fight Bashar al-Assad and al-Qaeda, yes, it would be a farce. But it would also be a crime against peace. Under international law, it is probably a war crime. Under Catholic doctrine, it is a mortal sin. The Kansas-Syria war might very well be necessary in the just-war sense (at least for the defense of innocent Syrian civilians), a last resort, successful, and proportionate. However, the governor of Kansas simply lacks authority to lead America, or even Kansas, into war. He has not been entrusted with that piece of the common good. He is not entitled to impose his judgment on the American people. He would not be a liberator, but an usurper.13

The Wise Federal Design

When the Founding Fathers wrote the Constitution, they deliberately fragmented “responsibility for the common good” among several different branches of government. Each branch was responsible for its own pieces. Most responsibility was reserved “to the States respectively, or to the People.”

The conduct of war was assigned to the President, who was therefore declared “commander-in-chief of the armed forces” in Article II. The Founders did not believe war could be micromanaged by committee. Their own experience with the Continental Congress during the Revolution showed them that they needed a decisive leader to command U.S. military missions. Once war is declared, the President may be supervised by Congress,14 but it’s the President who eventually calls the shots.

On the other hand, the authority to decide about declaring war, the Founders gave exclusively15 to Congress:

The Congress shall have Power… To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

—Article I, Section 8

This is the authority to “evaluate the conditions of moral legitimacy for war” spoken of by the Just War Theory. The President does not have it. Congress does.

The Founders did this in part simply to separate powers. The Founders separated powers because no one person or entity could be trusted with full power. During debate at the Constitutional Convention over this provision, Elbridge Gerry famously remarked that he “never expected to hear in a republic a motion to empower the Executive alone to make war.” As James Wilson argued at Pennsylvania’s ratifying convention:

Th[e] [Constitution’s] system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our national interest can draw us into a war.

In part, though, they separated this specific power from the Executive because the Executive is uniquely dangerous in this regard. As Madison wrote to Jefferson in 1798:

The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legislative.

He goes on in that letter to complain about the possibility that a president could, by hook and crook, abuse his power to drag Congress into a position where it has no politically viable choice but to acquiesce to the President’s war of choice, writing, “it is evident that the people [would be] cheated out of the best ingredients in their Government, the safeguards of peace which is the greatest of their blessings.”

A third benefit of the Founders’ assignment of the war-starting power to Congress is that it forced the nation into a discussion. President Bush very probably wanted to go to war with Iraq immediately by April 2002. He could not. He needed Congress on his side. He couldn’t just start a war on his own, then claim Congress was on his side when it inevitably failed to pass a War Powers Resolution ending the war. That would invert the Constitutional order, by allowing one man to start a war and a minority of Congress to continue it.16

That meant Bush had to talk to Congress. He had to talk to it a lot. It wasn’t enough to talk to Congress, either. Congress is a permanent prisoner of the election cycle, largely unable to do really unpopular things, so Bush had to talk to the voters, too.

As a result, America spent a full year talking, as a nation, about the just war criteria as applied to Iraq. We had raging national debates, including on the floor of Congress, about whether the cause was just, about its proportionality, about alternatives. Every point of the just war theory was litigated in endless detail at water coolers and dinner tables across the country. We spent months arguing whether a new war would be self-defensive enforcement of the terms of the Persian Gulf cease-fire (good), or a new preemptive war of aggression (bad). Bush was forced to pursue several alternatives that he probably didn’t really want to pursue, but political reality didn’t give him a choice. Only after those alternatives were exhausted could he launch the attack. When he did finally launch the attack, he had the great majority of the nation behind him.

That’s what happens when Congress has the power to declare war.

Now Donald Trump is showing us what happens when Congress, by negligence, loses that power. As Abe Lincoln wrote to his friend William Herndon in 1848:

Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object– This, our convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us[.]

Alas.17

The Constitution is Not Amended by Disuse

I say this kind of thing a lot, and one common response is a dejected sigh. “You’re right, James, of course this war is unconstitutional, on paper. But that paper is long dead. Presidents have been flagrantly usurping Congress’s war power for decades. Get real. Trump’s just the latest in a long line.”

First, I think this is much too cynical about the recent past. George W. Bush launched multiple wars, all of them legally, backed by authorizations from Congress that he had sought and received. George H.W. Bush, in launching the Persian Gulf War, sought and received an AUMF and the U.N.’s full blessing.

Even deviations from the war power have generally come cloaked in thick legal arguments, because even aggressive presidents mostly knew they had to have some fig leaf to justify an attack without Congress’s say-so. For example, I was just a baby when George Bush invaded Panama, so I’m not prepared to parse out the legal arguments, but Bush did try to justify his attack under both self-defense and extradition rules. (Panama declared war on the U.S. just five days before our invasion, and U.S. troops had been killed as a result.)

Since I started paying attention to politics in 2000, I don’t think I saw a President truly, obviously, flagrantly try to steal Congress’s war power until 2011. That was the year President Obama started a clearly unconstitutional war with Libya. (It was unconstitutional for all the same reasons18 as Trump’s Iran War. Many of the Iran War’s loudest critics on my wall get really uncomfortably quiet after I say that, and remind them that he should have been impeached, too.) Illegal wars are getting more common, but they aren’t super-common, they’ve usually been quite rare, and we should not simply shrug our shoulders and give up on a provision of the Constitution that was working fine just two decades ago.

Even if the critics were right, though, that wouldn’t change anything. You should be furious that Mr. Trump has stolen the war power. He has robbed you of your birthright as an American citizen: peace, until Congress says otherwise. Whether it’s the first time you’ve been robbed or the twelfth, it’s still robbery! Subsequent robberies should make you more resistant, not less. Even if your city declares it will no longer enforce anti-robbery laws (which sounds like a joke but was as far as I can tell the actual policy of San Francisco for several years), robbery is still against the law, robbing people is unjust, and you should oppose the robbers. The best time to start impeaching and convicting Presidents for starting illegal wars was when they started, but the second-best time is tomorrow.

The Constitution is the supreme law of our land. Its provisions cannot be repealed by desuetude. Nor can they be rewritten by imperial presidents. The text of the Constitution remains the text, no matter what others say.

If the President wants more war powers, fine. If you, as a voter, think the Constitution’s separation of war powers no longer makes sense in our modern, hyper-connected world, fine. There’s a simple way to change the current settlement, proposed by the Founders and used twenty-seven times since: just amend the Constitution.

However, since that, too, involves talking to the American people, it’s not something these “realists” are inclined to try. They are more likely to scoff at you for suggesting that the modes of a Republic ought to be respected.

This is good evidence you should never, ever grant them the power they seek.

Bomb Bomb Bomb Bomb Bomb Iran

I’m not using this whole “follow the Constitution” thing as a stalking-horse for secret pinko anti-war sympathies. I am exactly the kind of person whose support the Trump Administration would have counted on in the public debate, if they had bothered to have a public debate.

I am, at heart, one of the last unreconstructed neoconservatives. When foreign people suffer under evil oppressors, I think it's good for the United States to use its vast military power to liberate the people and topple the oppressor. War is horrifying beyond all reason. But so is a tyrannical police state that slaughters tens of thousands of its own citizens for protesting the government. War is sometimes the lesser evil, and it is praiseworthy to exercise that terrible power on behalf of the suffering victims of tyrants.

The Iraq War did not change my mind about this. The Iraq War merely humbled me. My vocal support for the Iraq War—and, worse, my curt dismissal of all the critics—was one of the three greatest mistakes of my political life. Iraq taught me (at great cost) that it is very hard and expensive to liberate a people, and that a liberation gone wrong could easily be worse than leaving the evil oppressor in place. I have become much more reluctant to intervene, much more skeptical of U.S. intelligence reports. I now realize that, even though some are sure to cheer and greet us as liberators, a few people cheering on the street is not a nationally representative opinion poll. Someone pointed out to me recently that, if the E.U. invaded the U.S. today to topple Mr. Trump, there would be celebrations in the street from about 20% of us… while the other 80% would be furious.

I recognize now that, in Iraq, we asked thousands of Americans, who had signed up to defend America, to die for a people not their own, which isn’t fair to them. (Nor was the cost in gold fair to the American taxpayer.) I also see now how the Iraq War, and the calamitous failure of the Bush Administration to deliver what it had sold, deformed America’s domestic politics, leading us straight into the collapse of social trust and high polarization of the Obama-Trump Era. The cost of Iraq was far higher than I ever imagined.

Nevertheless, at bottom, I want the world to be free, and I think military force can, sometimes, be the least bad means of achieving it.19

Aside from being a brutal dictatorship that slaughters its own civilians by the hundreds (perhaps the tens of thousands), Iran really has been trying to build WMD for decades. A nuclear Islamic Republic would first dominate the region, then become a threat to the whole world, the center of a perverted Ummah backed by nuclear fire and mullahs happy to flirt with an apocalypse for the sake of their God.

As a result, if you’d asked me at almost any point in the last twenty years, “Should the United States go to war with Iran?” my answer would be somewhere between a non-committal shrug and a reluctant, “Maybe we should just get it over with.” (This made me one of the most pro-war American voters, especially around 2008-2010.) I’ve little doubt the cause would be just; it’s just the other just war criteria that have always hamstrung me. Even now, though, I remain cautiously hopeful that the results of this war (though illegal, therefore evil) could lead to a great deal of good. Imagine a Middle East free of Hezbollah and Hamas, free of the regional tensions between Iran and Israel, with a whole new nation’s worth of men and (especially) women free from the oppression of sharia law. If all goes perfectly well, an Iran war could be the dawn of peace in the Middle East. Iraq humbled me far too much to expect that, but I still hope.

Much as I would have preferred a negotiated settlement that actually disarmed Iran (and, ideally, freed its long-suffering people), that was never really on the table, because Iran had no interest in such a settlement. I laughed at Obama’s JCPOA agreement with Iran, along with the rest of the Right, because it could never achieve what it set out to do. It probably was, as the Obama Admin argued, the best deal possible, but the best deal possible wasn’t good enough. Much as we might try to delay it (and I was all for delaying it), I didn’t see an alternative, in the long run, to eventually attacking Iran.

This would mean children killed by U.S. bombs. No matter how careful we are about it, no matter how just our cause, moms and dads in the war are going to come out of the rubble of a strike and find the broken body of their dead three-year-old, skull shattered, brain splashed across the ground, where he was playing with his toys a few minutes ago. It will be an accident, but the kid is still dead.

I just believed that, at some point, we would find ourselves in a position where attacking Iran would save more children than it killed. (The mullahs kill lots of people in their own country, and they are the puppeteers behind Hamas, Hezbollah, and a whole bunch of other child-killers around the Middle East.) Sometimes dropping bombs, even knowing that some will hit civilians, is the lesser evil.

But we’d better make damn sure of that before we open the bomb-bay doors.

The U.S. has a constitutional process designed to help make sure that we do, in fact, make damn sure. We did not follow it. We are not following it. We are not going to follow it. This war is illegal, and therefore unjust. All those who believe the United States is ruled by its Constitution, not by a King, have both a moral and a practical duty to oppose the U.S. war on Iran.

19

Look, I made an omake for today’s article:

The new Lyceum Movement (which is now operating in Des Moines, Duluth, St. Paul, Kalamazoo, and Itasca County, MN) is an attempt to recapture some of the spirit of the nineteenth-century American lyceums. This old social movement brought together communities to hear great ideas from great figures like Mark Twain and Abe Lincoln—and then to discuss those ideas among themselves.

I’m no Mark Twain, but I have nevertheless been asked to participate in a panel discussion / conversation at the St. Paul Lyceum this Thursday (two days from now).1

More Info / Tickets

Our topic is Civility & Peace:

Recent episodes of political violence have left many wondering what kind of civic life we are entering. As distrust rises and Americans grow more distant from one another, what are the prospects for civility and peace? What holds a society together when disagreement deepens? And what happens when those bonds begin to fray?

I’m not sure when the Lyceum picked this topic, but, in the wake of local ICE operations and two killings, not to mention the assassination of House Speaker Melissa Hortman last year, these questions are very timely (perhaps even a little sensitive) here in the Twin Cities.

The Lyceum will meet at the Yoerg Brewing Company in Regular Saint Paul. I’ve been told to expect 15-30 people.

Doors open at 5:30 to get drinks and make friends, panel from 6:00-7:00, table discussion from 7:00-8:00. Tickets are $10, but, with every paid admission, you can bring one friend for free. (This is a not-so-subtle way of encouraging friendship and community.)

The discussion will be moderated by Evan Beacom, organizer of the St. Paul Lyceum (and—I learned as a result of this—a thorough reader of De Civ). I will be up alongside the estimable philosopher and writer Dr. Rachel Lu, associate editor at Law & Liberty. (She’s also appeared in Worthy Reads at least twice, and she is terrific.)

For more information and to purchase advance tickets, see the EventBrite page:

More Info / Tickets

I am excited about this. I am also pretty nervous! I have never been invited to do anything like this before. It’s an honor to be thought of as any kind of respectable thinker. At the same time, I’ve always considered myself a poor extemporaneous speaker, and I have what they used to call “a real face for blogging”:

So, if you come, there’s a real chance you’ll be paying $10 to watch me humiliate myself!2 However, Dr. Lu alone is worth the price of admission and will carry the night if I fall apart under the bright lights. I’m trying to find time tomorrow to re-read some things and put together a few notes on index cards, so I don’t just spend my whole time up there stammering.

If you, too, want to pregame, you might enjoy reading Lu’s excellent “The Terrible Smallness of Public Killers,” and my own “One Reason to Punch Nazis (and Two Reasons Not To).”

At some point, I’m very likely to find some excuse to pull out my old schtick about “the two causes of civil war are partisan hatred and legitimacy crisis,” a theme I explored at length in “Review of Ross Douthat’s Review(s) of Civil War” and, of course, that one time I wrote a novella that accidentally predicted January 6.

I hope one or two of you are able to make it! I will be staying for the post-panel conversations and perhaps even a few minutes beyond the end of the schedule, so it would be lovely to meet anyone out there in Readerland who’s in the area and able to make it into Saint Paul on a weeknight.

“Walking Duluth,” by Chris Arnade:

When I asked him his backstory (born and raised in Duluth, worked at the hospital) and if he thought of moving, he looked at me like I was a crazy person, asking a crazy question. Move? What do you mean? Why? The weather? You mean to someplace where I couldn’t go out on the ice and catch fish? Where I couldn’t go hunting in the afternoon? Where I couldn’t have dinner with my parents at night? Where I couldn’t hang with my buddies at Roscoe’s?

Place still matters to Americans, and few places place as hard as Duluth does.

For nearly ten years now, I’ve enjoyed Chris Arnade’s travelogues from far-flung places. He strikes me as having a talent for finding the soul of a place. Place is a vanishing thing in this hyperconnected world, but Arnade susses it out everywhere he goes. Of course, since I’ve never been to most of those places, I didn’t have any way to validate what he wrote.

But, this time, he came to my backyard to write about my people.1

I love this piece for lots of reasons, though, and only most of them are parochial.

I think a place matters a great deal. I’m not sure I can articulate why, except to refer you to my favorite work of G.K. Chesterton’s: his pre-conversion novel The Napoleon of Notting Hill. In this peculiar, remarkable book, Chesterton frankly admits that to care intensely about one particular patch of streets and dirt—to elevate one dreary London suburb above every other London suburb—just because it happens to be yours… is utterly absurd. Then he turns around and insists that it is sacred anyway:

“Only feeling, sire,” answered the Provost. “I was born, like other men, in a spot of the earth which I loved because I had played boys’ games there, and fallen in love, and talked with my friends through nights that were nights of the gods. And I feel the riddle. These little gardens where we told our loves. These streets where we brought out our dead. Why should they be commonplace? Why should they be absurd? Why should it be grotesque to say that a pillar-box is poetic when for a year I could not see a red pillar-box against the yellow evening in a certain street without being wracked with something of which God keeps the secret, but which is stronger than sorrow or joy? Why should any one be able to raise a laugh by saying ‘the Cause of Notting Hill’?—Notting Hill where thousands of immortal spirits blaze with alternate hope and fear.”

So long as the loons cry out over the frozen lakes, so long as men say “you bet” while shoveling their neighbors sidewalks, there is a part of me always ready to man the battlements at Fort Snelling, tho’ it be ringed about by all the armies of Wisconsin, and die for Minnesota. This seems good and healthy and normal to me.

It seems that many Minnesotans feel something like this, somewhere inside them. Contrary to popular belief, we are not a nation of movers, racing all over the country to find the best opportunities. That’s the impression we sometimes get from the media. It’s part of our national story, and it’s very typical of the rich and powerful. Nevertheless, according to the Census, two-thirds of Americans currently reside in the state where they were born. In Minnesota, that figure rises to just shy of three-quarters. An overwhelming majority of Americans live less than an hour from their mothers; a solid third of Americans live within 30 miles of all their adult children and parents. We are a rooted people! The human species puts down roots!

Of course, a lot of this is about wealth. The rich and powerful leave their homes, in part, because they have enough money or social capital to do so. For the rest of us, much of our wealth is in our homelands: the plumber who’s a friend of the family who will do you a favor if you promise to return it later on. The old friends who pitch in to help you move when you get out of the apartment. The parents willing to contribute enough free child care to make your two-income household actually make economic sense. This is all literal monetary GDP-style wealth. Many of us couldn’t financially afford to live apart from our roots, even if someone paid all the costs of moving across the country.

On the other hand, many of us don’t want to move anyway. Our places are thick with the intangibles that make life actually worth living. My evenings with my parents eating free food are economically rational, sure… but also something I look forward to every week, because my parents are delightful. I wouldn’t give up Thursday night burgers for a million bucks.2 Nor would I give up sledding days, or the autumn leaves, or the frantic rush to enjoy summer while it lasts, even if it meant I never had to rev up my snowblower again.

You feel all this in Arnade’s piece. It is a good piece. Go enjoy a few minutes in Duluth.

When you are finished, perhaps you may also enjoy Rep. Proctor Knott (D-KY)’s famous 1871 ode to Duluth. Knott was being sarcastic (see also: these background details), but Minnesotans, with the passive-aggressive cheerfulness for which we are justly famous, refused to recognize the sarcasm, and have celebrated the speech ever since:

Duluth! The word fell upon my ear with peculiar and indescribable charm, like the gentle murmur of a low fountain stealing forth in the midst of roses, or the soft, sweet accents of an angel’s whisper in the bright, joyous dream of sleeping innocence. Duluth! ‘Twas the name for which my soul had panted for years, as the hart panteth for the water-brooks.

Of course, given ICE activity in my actual neighborhood over the past few weeks, I can’t help reading all this back to myself and turning my thoughts to the immigrant. Given how much most normal people value their place, how much must it hurt to leave that place, especially for an entirely new country? My great-great-grandmother left one of the most beautiful counties in Ireland in 1873 for Ellis Island. She never saw Ireland again. She did that for us. It cost her dearly. This is why exile was once the worst penalty that a criminal could face, short of execution. We may reasonably assume, then, that, whatever their legality, most immigrants do not come to America lightly. For the same reason, deportation is an awful punishment—even though generally lawful and often necessary—which we should inflict only with great sobriety and sorrow, especially on those who have been here long enough to put down roots.

Similarly, our civil war is going to hurt. Indeed, it’s already hurting. I know people who have left their Minnesota homeland simply so they can live in a red state. I know people who have moved to Minnesota from that same red state simply so they could live in a blue state. We all know others like this. Given the tribes’ sharply divergent visions of the Good, I think political relocation is an entirely defensible choice. But the cost is sharp, the fact they are willing to pay it to be with their own tribe is alarming, and it’s only going to get worse as polarization deepens toward violence. My nightmare is finding myself at the final battle for Minnesota after all… but as part of the invading army.

A Recording of “Raissa” from Invisible Cities, by Lydia Laurenson:

Raissa

In Raissa, life is not happy. People wring their hands as they walk in the streets, curse the crying children, lean on the railings over the river and press their fists to their temples. In the morning you wake from one bad dream and another begins. At the workbenches where, every moment, you hit your finger with a hammer or prick it with a needle, or over the columns of figures all awry in the ledgers of merchants and bankers, or at the rows of empty glasses on the zinc counters of the wineshops, the bent heads at least conceal the general grim gaze. Inside the houses it is worse, and you do not have to enter to learn this: in the summer the windows resound with quarrels and broken dishes.

And yet, in Raissa, at every moment there is a child in a window who laughs seeing a dog that has jumped on a shed to bite into a piece of polenta dropped by a stonemason who has shouted from the top of the scaffolding, “Darling, let me dip into it,” to a young serving-maid who holds up a dish of ragout under the pergola, happy to serve it to the umbrella-maker who is celebrating a successful transaction, a white lace parasol bought to display at the races by a great lady in love with an officer who has smiled at her taking the last jump, happy man, and still happier his horse, flying over the obstacles, seeing a francolin flying in the sky, happy bird freed from its cage by a painter happy at having painted it feather by feather, speckled with red and yellow in the illumination of that page in the volume where the philosopher says: “Also in Raissa, city of sadness, there runs an invisible thread that binds one living being to another for a moment, then unravels, then is stretched again between moving points as it draws new and rapid patterns so that at every second the unhappy city contains a happy city unaware of its own existence.”

It seems like every smart, cool person read Invisible Cities years before I ever even heard of it.3 I remain very grateful to the friend of mine who gave it to me as a Christmas present.

It’s a very strange book. It isn’t a story. It’s a series of short prose-poems, like the one above about Raissa (which I have reprinted in its entirety). Each prose-poem describes a different city. Every city described is completely imaginary, often outright fantastical. Yet every city has something special that is at once unique and universal.

I limited myself to reading one city per night, so as to enjoy them each to the full. The book is not long, only 55 cities in total, none longer than a few pages. Laurenson’s page has several of them, which gives you a nice taste of the book. (The recording itself is better on speakers than headphones.)

“A Partial Explanation of Zoomer Girl Derangement,” by Zinnia:

Girlhood ends when the world looks at you. One day, you wake up and you’re a sex object. This is terrifying. Men want you and they are bigger than you and stronger than you. They do not see you, they just like what they see. Hungry eyes: how do you keep rabid animals at bay? But if you are of a certain disposition, you may feel a certain kind of thrill, walking into a room and having all eyes on you. Men may be bigger and stronger, but you are smarter. If you bat your eyes at the man from across the bar, he’ll buy you a drink; if you cry when the police officer pulls you over, he’ll let you off easy.

As you come of age, you must confront a paradox: your greatest source of power, your desirability, is your greatest source of vulnerability. Girls react to this paradox in various ways: some girls retreat into themselves, despising the male gaze; others embrace it, perhaps out of insecurity, perhaps out of ambition. Whatever the case may be, as you come of age, you come to terms with it. You accept your desirability, but you do not let it define you; you pursue other things, hobbies, interests, passions. You do not resent the male gaze, but you do not hunger for it either. This is the healthiest way to come to terms with your newfound status as “sex-object.”

Unlike the author of this article, I have never been a Zoomer girl. I welcome Zoomers and/or girls to tell me if this article is right. As a Millennial boy, however, this one rings true. Girls start out as just a somewhat confounding species of people, and then, gradually, you find that a cute girl’s laugh makes you weak in the knees, and a well-endowed girl teaches you that hypnosis isn’t just something they made up for Saturday morning cartoons.

This is terrifying. For a man, adolescence begins when he finds himself carried away by a powerful beast, galloping faster than he previously imagined possible, completely out of control. It ends when he bridles that beast. (Some never do.) However, at least we’re riding the beast! Women are stuck standing in front of it! That must be terrifying!

I like this piece because it goes through several seemingly unconnected disorders common to modern women and, with admirable economy, suggests that they are all simply disordered responses to awareness of the male gaze. Of course, the truth is rarely so monocausal. Reality is much too complicated. However, there are a lot of weird things going on in male-female relations right now, and it would be a lot less weird if they were all at least connected by some common explanation.

Curiously, the author wrote this piece to launch her Substack almost two years ago. It went moderately viral, successful far beyond anything I’ve ever published… and then she never published anything again. Tweets a lot, though, so I guess she’s okay—or, at least, as okay as anyone who tweets a lot ever is.

“My Childhood Friend, Renee Good,” by Jane Clark Scharl:

Here’s what I remember about Renee: she was gentle and thoughtful, very much so. She was, even as a teenager, a remarkably careful listener. Even during high school – years when many of us turn inward and become self-obsessed – Renee persisted in looking out for others. She had beautiful light-blue eyes, and the rare ability to look directly into another’s eyes while they spoke.

She had a beautiful voice, too, both singing and speaking. Her speaking voice was a little husky, but when she sang, it was clear and sweet. I have a distinct memory of standing in our newly completed youth group room one Sunday evening – it must have been winter because it was dark outside – singing praise and worship songs. We were Presbyterian, so we weren’t particularly good at singing praise and worship, but I remember Renee’s voice coming through, confident and lovely, carrying the rest of us.

This article is a simple enough plea to remember the human. It breaks no new theoretical ground. It will not change your mind about Policy or Justice or any other capital-p Principles. But the world is not fundamentally about capital-p Principles, any more than the world is fundamentally about capital-p Physics. The world is about us. All the capital-I Intangibles exist for us.

I belong to the camp that tends to view4 Good’s killing as tragic, caused by stupid decisions on all sides, but (despite that) legally justified and morally acceptable. However, even for those of us who think there was no crime in her killing—perhaps especially for us—it is important to look at her life and remember that she was a person, infinitely loved and terribly, terribly necessary.

Here arrives the paywall. In the rest of this installment, subscribers get to read about “Luigism,” my surprising-to-me hesitation about free speech, some opposition to the word “priors,” the debt ceiling and the looming fiscal crises, and the squalidity (that’s a word, right?) of American cities. All this plus the three5 videos of the month! Not bad for $4.17 a month!

Read more

The information environment in the Twin Cities is completely cracked, and has been for weeks. You can’t trust anything the federal government says, you can’t trust anything the protesters say, and you can’t trust anything local officials say. They’re all lying, constantly, and it takes days to sort out the truth about anything.

My local Target has faced two sit-in protests over a racist incident at a different Target that never actually happened. The Department of Homeland Security officially published a verifiably false set of claims about a man the Border Patrol had just gunned down in the street, in a transparent attempt to libel him for political gain. A woman who took her kids to a declared riot (and thereby got them tear-gassed and hospitalized) spent a week pretending she’d been trapped in the riot by accident before Internet weirdos proved she was lying.1 (By then, she’d raked in a handsome take on GoFundMe.)

As I wrote a few weeks ago:

I keep talking about the possibility of some future civil war, but the truth is that civil war is a spectrum, and we are already on it. We’ve been in a low-grade civil war since at least 2020. The two rival tribes that occupy the United States are vast, rich, well-organized, and well-armed. Both of them are doing everything in their power to get you to pick a side—their side. When this war gets hot, they are going to need you to kill the people on the other side, and they are trying to prepare you for that. The tribes can’t let killings like Babbitt’s or Good’s be mere tragic exercises in stupidity; they must be made into martyrdoms or domestic terrorism. If the truth gets in the way of that, the truth will have to go. What looks like truth-telling becomes recruitment.

All three incidents I just described (and more besides) happened after I wrote those words. I can write about the lies for hours. Indeed, in correspondence with local friends and acquaintances, trying to sort out true from false, I’ve done just that.

However, lies are not the only way tribes spread propaganda. On the contrary, lies are one of the weaker tools in their toolbox. Of course, the tribes have many ways to keep their followers from learning the truth. Even if they learn the truth, tribesmen have a strong bias against accepting the truth, because it would create cognitive dissonance.2 If it were not so, the tribes could not use lies at all! However, on the rare occasion that a lie is exposed, it can do major damage to a tribesman’s faith in the tribe. Both tribes greatly prefer to use the truth, where available. It’s much easier to convince people you’re right when you are, in fact, right.

However, truth is often complicated. Tribal narratives can rarely afford complexity.

So here’s a question for you: Is ICE mostly arresting criminals?

(Prior to reading anything I have to say about it, what do you think is the correct answer to this question?)

While Americans are pretty divided on whether to deport all illegal immigrants, there is an overwhelming consensus that criminal illegal immigrants should be swiftly shown the door.3 Mr. Trump spent much of his campaign talking up the threat of specifically criminal aliens and promising to focus his attention, first and foremost, on the criminals. So this question matters a lot, politically: is ICE living up to that commitment to mostly arrest criminals?

One true answer to this question is No. The vast majority of illegal immigrants arrested in the last twelve months are not criminals. In fact, in Trump’s first year, only 36% of those arrested were criminals. This is perfectly true.

Another true answer is Yes. The vast majority of illegal immigrants arrested in the last twelve months are criminals. In fact, in Trump’s first year, fully 66% of those arrested were criminals. This is also perfectly true.

How can these contradictory claims both be true?

About a third of the people arrested in Trump’s first year had pending criminal charges, but had not yet been convicted. If you count them as criminals, then the 66% figure is correct and the vast majority of arrestees are criminals. If you don’t, then the 36% figure is correct and the vast majority aren’t.

One can imagine a series of quick retorts between the tribes about which statistic is more appropriate:

BLUE: People with pending charges aren’t criminals! They’re innocent until proven guilty!

RED: In federal criminal court, 91% of those charged are convicted, and many of the remainder are definitely criminals but get off on technicalities.

BLUE: And a lot of those who plead guilty are railroaded by our corrupt plea-bargaining system.

RED: Even if you just look at cases that went to trial—which are likely to include many of the best cases for defendants—the government still wins convictions 82% of the time.

BLUE: That’s federal. State conviction rates are lower.

RED: Probably, but probably not much lower, and good luck finding the data to back up an intuition. The truth is that the overwhelming majority of people with pending criminal charges are going to end up convicted, an even larger share of them are guilty, and you know it.

BLUE: I don’t know anything until due process is done, and neither do you.

RED: These are persons unlawfully present in the United States. The process due them, by law, is verification of their status followed by deportation. The end.

BLUE: So you don’t care that, by your own admission, your “66% criminal” stat is almost certainly an exaggeration?

RED: At most, a slight exaggeration—a lot less than the wild under-exaggeration you commit by treating every kiddie diddler arrested on clear evidence as a perfect innocent until the State spends God-knows-what convicting them. It’s absolutely true that a majority of those arrested are criminals!

BLUE: Hold on, what “clear evidence”? You hyperlinked a specific story there, the case of Daniel Alejandro Torrealba Mendez, and I happen to know there’s no public arrest record or evidentiary court filings in that case!

RED: …Yet.

BLUE: So when you said clear evidence, you were making it up?

RED: I’ll tell you what. I’ll bet you $1,000, right now, that, whenever the evidence in that case does come out, your own mother will agree he did it.

BLUE: I don’t gamble, especially not with the justice system.

RED: Sure. You’d rather gamble with public safety, which is why Gregori Arias is dead.

BLUE: This isn’t fair. You’ve had four hyperlinks and I’ve had none. The author’s stacking the deck.

JAMES: Please don’t drag me into this! I’m trying to find a good link for you on the plea-bargaining point, but I haven’t looked at plea-bargain abuse in years. Will my Official Authorial Endorsement make up for it?4 I’ll also let you take an extra turn, Blue.

BLUE: Fine. What most Americans are really interested in when they ask about “criminal illegal aliens” is serious crimes—violent crimes. You know, the “Worst of the Worst” (which ICE had to plump up with people Minnesota had already imprisoned), not graffiti and shoplifting. But only a small fraction of ICE arrests—7% over most of last year!—were of violent criminals!5 Moreover, that fraction is falling as ICE has to cast larger and larger nets to make its quotas! Your argument is already unjustified, but it could fall apart completely in six months!

RED: I’m not going to discuss future hypotheticals while you’re moving the goalposts here and now. We started out agreeing that criminal aliens were the category of interest, not some bespoke artisanal subset of criminal aliens that happens to interest you. The same report shows that the most common non-violent conviction was for DUI, which is a serious offense in my book! So’s “non-violent” identity theft. So’s “non-violent” distribution of child pornography. These are not good guys you’re defending!

BLUE: You cannot know that! You can point out this or that bad case but you cannot make systematic claims about all cases, especially in this degraded information environment, without independent jury review! In America, we don’t call people “criminals” until convicted by a jury of their peers!

RED: Our beloved author waited four days after George Floyd’s killing to start calling it a “murder.” He switched terminology on the basis of Hennepin County’s criminal charge—not a conviction, which took another year. Your Blue tribe criticized him for not calling it a murder quickly enough. English has the phrase “convicted criminal,” distinct from “criminal,” because we know there are criminals who haven’t been convicted.

BLUE: Maybe our beloved author called Floyd’s death a “murder” as soon as it was charged, but I don’t think he actually called Chauvin a “murderer” until conviction.

JAMES: Guys, please, stop bringing me into this. Blue could be right, but I honestly don’t remember. In fact, I think we’ve got about all we can from you two, so I’m going to call it there.

RED & BLUE: Spineless chicken!

What seems like a very simple yes-or-no question—Is ICE mostly deporting criminals?—turns out to be a fairly thorny one, with boundaries that can be reasonably contested to reach opposite conclusions. Both tribes accurately claim that the truth is on their side.

More importantly, both tribes truly believe the truth is on their side.6

Most dangerously, many tribesmen aren’t even aware of the argument from the other side, and believe that the other side is flagrantly lying. (Their fellow tribesmen aren’t inclined to correct that impression.)

As a result, we have two very different pictures of U.S. deportations: one version where most people getting swept up and kicked out are criminals who pose a threat to public safety, and another where most people getting swept up and kicked out are peaceable family men who happened to be in the wrong place at the wrong time. Neither is a lie. Both have considerable truth to them.

I’m supposed to have a conclusion here to help you apply these principles broadly in your life, but this is a “Quick Hit”7 and I’m on day three of a head cold, so, I guess, just try to remember that, even when you do perform the hard work of sifting through the avalanche of lies to acquire a few true facts, your lens isn’t necessarily unequivocally the only true lens through which to view them.

This is hard. I’m going to go lie down.8

6

Of course, they always believe that:

Every pro-lifer eventually hears an argument that goes something like this:

You say that fetuses are human beings with rights, but, like, half of them die before they’re born! If abortion is murder, then your God is history’s greatest murderer!

There are several good responses to this argument:

• “For virtually all of human history, something like half of people born died before puberty. Are you saying we should legalize abortion up to the thirty-ninth trimester… or do you think fourth-graders finally earned a right to life because we invented antibiotics?”

• “Just wait until you hear about the death rate for adults—100%!”

• “Why are you bringing up God? All I said was that it should be illegal to commit a premeditated killing of a baby. Keep your creepy religion out of politics, zealot!”

These are all perfectly cromulent replies. Most of them expose the non sequitur: there is no logical connection between a population’s natural death rate and its right not to be killed intentionally. This forces your interlocutor to admit that the miscarriage rate is not the real reason he opposes fetal rights. The focus shifts back where it always needs to be: the human right to live1 and the fetus’s humanity.2

And yet.

Remember, No Rosaries

The atheist pro-lifer will have no trouble with all this death. People die. Babies die. Lots of ‘em. So what? We humans are beacons of light in a cold, senseless universe. We are here to offer one another a little warmth and kindness while the dark closes in around us. We shouldn’t kill our babies for the same reason we shouldn’t kill any other human. “An ye harm none, do what ye will,” say the Wiccans. “No violence may be employed against a nonaggressor,” agree the libertarians. “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others,” add the utilitarians. To the atheist pro-lifer, the fact that death is always closing in on all of us is a scandal and a horror, not an excuse.

When pro-lifers are discussing abortion with others, I think we should all play atheists. Abortion is not wrong because God said so; abortion is wrong because it’s murder. We didn’t learn that life begins at conception from the Bible. We learned it from modern embryology, barely a hundred fifty years ago.3 There is even a credible argument that the Bible points away from fetal rights. If that argument is correct, then the Bible is wrong, simple as that.4

Pro-lifers in secular countries should never allow themselves to be sidetracked into religious discussion, because the existence of God is a superfluous hypothesis in the pro-life argument. The pro-choicers are the ones trying to make it a religious argument by talking about “personhood” (or, as it used to be called, “ensoulment”). We’re sticking to facts taught in ninth-grade biology texts.

And yet.

Free to Choose

For the pro-lifer who believes in God, the pro-choice argument from fetal death rate does reveal a problem. It’s just not a problem with the pro-life position. It’s a problem with God.

Let us suppose that the purpose of a human life is to know, love, and serve God. He asks us to believe in Him, hope in Him, even worship Him. In short, God puts us on Earth so we can choose Him.5

It is obvious that newborns, without exception, are absolutely incapable of free choice. The capacity develops over time, and it isn’t quick. Babies gradually figure out how to select their preference from a range of options (for example, by gobbling the carrot-flavored baby mush while hurling the peas-flavored baby mush across the room), which is a kind of choice, except not really. It’s the kind of choice animals can make: a simple reflexive response to positive or negative stimuli.

Deliberate choice, which seems to be unique to humans, can’t develop until babies learn to deliberate, which is a function of language. Most babies start to develop symbolic language at approximately age 1. Before that milestone, it seems fair to say that they are absolutely incapable of choosing God (or anything else). Before that milestone, it even seems fair to say that infants have not yet come fully into their humanity. They certainly can’t sin. Calling a baby an evildoer is like accusing a walrus of plagiarism.

Therein lies the problem.

Ranks Upon Choirs Upon Legions

For most of human history, infant mortality was very high. In the Roman Empire—one of the most advanced civilizations of the pre-modern world—more than one in three children died in the first year of their lives. Those children never got to know, love, or serve God. Sure, after Rome converted to Christianity, many of these infants were baptized. According to Christian beliefs, baptism creates a new and stronger relationship between the infant and his Creator. However, this relationship, if it exists, is neither consciously experienced nor chosen by the infant. If the purpose of human life is to choose God, or to freely enter some sort of relationship with Him, before God calls you home, then God seems to have pulled the ripcord too early on these kids.

This isn’t just a handful of outliers, either. Ancient infant mortality overall is impossible to compute, since we don’t have census records from the Pharaoh,6 but we are certain it was extraordinarily high7 compared to today. In many societies, something approaching half of all children were dead less than twelve months after their births.

That is only the beginning of our troubles.

Even without the violence of abortion, approximately 10-20% of known pregnancies end all by themselves, in death by miscarriage. That’s an underestimate of the death toll, because many pregnancies are never known. It takes time after implanting in the uterine wall for a baby to make himself known to a pregnancy test. One careful study of hCG and clinical pregnancies credibly estimated that, even excluding abortions, about one-third of children die between implantation and birth. This estimate implies that only about half of these miscarriages are known. Half the time, a child dies without mom and dad even realizing he was ever there.

But wait! There’s more!

Human life doesn’t start at implantation in the uterine wall. It starts at conception, when sperm and egg kamikaze into one another to create an entirely new organism out of their ruins. The days after conception but before implantation are extremely dangerous for the new child. They are also almost totally invisible to medical science, since we currently lack the ability to detect these very early pregnancies.

Estimates of the pre-implantation death rate have therefore been all over the place. One oft-cited note in The Lancet in 1971 did some back-of-the-envelope math and concluded that about half of all humans conceived die in the tube before implantation.8 That figure is probably a little high. That careful study I already mentioned? They re-examined The Lancet note and concluded that, in fact, pre-implantation deaths are probably closer to 10%-40%. So that’s alright, then! Instead of half of all humans dying before the reach the uterine lining, the true number is probably closer to a quarter of our species. Bully!

If we add this all together, we find an unsettling picture of human existence.

In the pre-modern world, about two-thirds of all human beings concieved died before they could say “love you dada.” In the modern world, we’ve accomplished the single greatest medical miracle in the history of the planet: we’ve cut that number down from two-thirds to about… half.

This is a staggering amount of infant death. Those of us who survived, who learned to talk and write and build and love and start the cycle over again, think of ourselves as the human norm. This is perfectly natural. After all, virtually everyone we’ve ever met also survived and learned to talk and write and build and love!

Statistically, though… we are not the norm. Most humans never made it past their first birthdays. If you die at Age 10, it’s considered a horrific tragedy, a life full of promise cut short before it could flower into fullness, and this is true… but it is also true that, if you’ve made it to Age 10, you’ve already experienced vastly more, known vastly more, loved vastly more, than the vast majority of human beings who ever existed. The moral choices of ten-year-olds may seem petty from your perspective,9 but they are orders of magnitude more sophisticated than the moral choices of the median human being, who died as a baby (or maybe a late-term fetus).

Thanks to modern demographics and embryology, we finally know what previous generations could not: we are surrounded by ghosts. They aren’t even the ghosts of our ancestors. We have a cultural framework for the ancestors. We can cope with them. We are instead surrounded by the ghosts of our siblings and our cousins and our nieces and our nephews. Of our own children, both known and unknown. And they outnumber us.

Again, none of this is a problem for our secular friend. For him, this simply confirms that Darwin is cruel. One of humanity’s gifts is to push back against nature’s cruelty, but the humanist recognizes that defeating death is a slow, nearly impossible task, with vast casualties expected along the way. Certainly nothing about the fetal death rate justifies denying their humanity.

But, since these children are human, the theist must ask… where is their God?

If it is true that God created us to know Him, to love Him, and to serve him in this world—if it is true that He gave us this time on Earth to choose Him—if it is true, as many Christians claim, that baptism by water is the ordinary means of salvation… how can we reconcile that with the fact that God created a world where most people never get the chance in this life to know or love or serve or choose at all?

How can we call baptism by water a salvific necessity when so few will ever be capable of receiving it? We could convert the entire world to Christianity and we still wouldn’t be able to baptize half the human race! The massa innocens dies in utero, beyond the reach of the baptismal font! Did Christ not come to give everyone a path to salvation?

Stories

Peter Van Inwagen is one of the most interesting philosophers around. For example, he is a Christian materialist, a combination I’ve never heard before or since. Van Inwagen once made an argument about evil that stuck with me:

You can’t actually philosophically show why evil exists—or, at least, doing so seems very, very hard. Even the Bible tells us very little. Job asks God why life is so much like hanging upside down with your head in a bucket of hyena offal, and God says (I’m paraphrasing), “You can’t understand until you can see outside the bucket.” All we can do, Van Inwagen argues, is tell stories about why God might allow evil to exist. These stories must be consistent with the existence of God and the sufferings of the world. They could be true “for all anyone knows,” but we have insufficient data to prove any specific answer correct in any specific case.10 All theodicy boils down, van Inwagen suggests, to a creative writing exercise.

In that spirit…

Getting a Sense of Perspective

As we’ve seen, humans who get to live “ordinary” human lives on Earth—who are born, grow up, and die—are the exception, not the rule. This casts the urgency of our vocations into sharp relief. We aren’t walking around working a day job and watching Netflix because that’s just how it happens. It usually doesn’t! We are here, on Earth, right now, because God Himself willed us, specifically, to be here, right now. We know our mission here in the Church Militant is special and essential because one-half to two-thirds of our brothers-in-arms weren’t even deployed. We are a skeleton crew who has been asked to run the world and keep humanity going at no better than half-strength.

So how dare we flag in our determination to accomplish that mission? Why do we worry so much about fame, wealth, or the fate of nations? Politics are of literally no consequence to most of the human race. Moreover, how dare we fail to be awed by the fractal frost on the window in the morning, or bowled over by the joy of a night in popping popcorn and watching a mid-tier action story like Revenge of the Sith with the fam? Most human beings never get the chance at popcorn, or frost, or stories.

Ordinary Isn’t Typical

The other half may not get popcorn, but I think we can be confident that whatever the massa innocens11 does get is pretty good. I do not think God would create a whole race of immortal beings, call them “very good,” and then condemn the majority of that race, though perfectly innocent of individual sin, to a bad destiny that they cannot possibly avoid. I suppose I can imagine such a God, but it is not the God we find in the Judeo-Christian Scriptures. That guy can be harsh, but he is constantly throwing out lifelines.

Indeed, if it is the case that Christ came to offer salvation to all, then it simply cannot also be the case that visible membership in the Christian Church through baptism is the typical means of salvation. Given high fetal mortality, these claims are incompatible.

I agree with the common statement that baptism is the ordinary means of salvation, but “ordinary,” in this case, must be taken in the same sense as when we say that Congressional Budget Act of 1974 defines the ordinary means for federal appropriations: the CBA is the standard procedure, against which all exceptions are defined… but it hasn’t actually been followed in nearly thirty years.12 You have to know the CBA to understand the real process, but the real process is dominated by the exceptions and quite often bears little actual resemblance to the CBA.

Likewise, accepting (or rejecting) Christ’s invitation to baptism by water is the ordinary means of determining one’s eternal destiny. However, if Christ is not a liar,13 reality must be dominated by the exceptions. Exactly what those exceptions are and how they work is a matter of extensive speculation… but, given conflicting arguments and divine silence on this question, what this speculation amounts to is just more stories.14

Personally, I suspect that infants who die are gifted with the grace to overcome original sin and make a free choice, like we are. This grace comes through the “living water” that springs from the side of Christ at His death, just as it does for us. However, like the angels in the moment of their creation, I suspect the choice of the infant is instantaneous, is made with complete understanding of the options, and has eternal consequences. (Thus, it is wise to pray for them in that eternal moment.)

Of course, if half of all humans are being exiled from their home country by being hurled off a mile-high cliff, it is reassuring to learn that there is a safety net and a boat to a new land at the bottom of the cliff, but it does not answer the more urgent question: why are they being hurled off a cliff in the first place?

The Contemplative Pyramid, Inverted

We, the living, are necessary. Humans are an embodied, animal species. God Himself cannot change that without destroying what makes us human. Therefore, if none of us were in the world, there would be no more adults, no more massa innocens, no more humans at all.

Yet, here in the living world, we find that some of the best and happiest of us are among those who deliberately withdraw from the world, into celibacy or even into the contemplative life. People like Mother Teresa, St Francis of Assisi, and St. Benedict, did great good in the world (St. Benedict arguably saved Europe). However, they did that as an afterthought, because their hearts were fixed firmly on finding and resting in God.

In the Catholic tradition, at least, there is no doubt that (all else being equal) the contemplative life is simply superior to the active life. The most important person on Earth today—the one who has accomplished more good for more people than any other single human—is probably some anonymous Carmelite nun, living in complete silence, never to be known in the world, but moving mountains with her prayers.

Actives are necessary, of course, or there wouldn’t be babies, or civilization, or any food for the contemplatives to eat. However, the contemplative has found a pearl of greater price, and so pays out her life drawing closer to Him. The contemplatives are an example to us all. Their sufferings are great, because they sacrifice so much, but the joy they sometimes obtain is our clearest preview of Heaven.

The relationship between “contemplatives” and “actives” is sometimes visualized as a pyramid: a tiny pinnacle of pure contemplatives supported by a huge base of pure actives.15 For each individual Catholic living in a cloister devoted entirely to prayer, there’s something like ten thousand Catholics outside the cloister. I don’t know what the figures are in other Christian denominations, to say nothing of other religions, but I imagine the ratio is pretty steep everywhere.

However, what if we’ve got it backwards?

If God created the human race and made it very good, and if the contemplative life spent seeking God is the best life, then would it not make sense for God to call the majority of humanity to that high destiny? Furthermore, if one is called to contemplate the Lord, would it not be easier to do so if one were already with him in Heaven right away? An efficient way of to accomplish this would be killing the majority of humans before they learn to walk.

Of course, God would need some people to survive infancy and live out the active life, because otherwise the human race would cease to exist. He would also probably need to send a few contemplatives to Earth to teach us actives what life is all about. This would be very hard for those contemplatives. Life on Earth is hard and sad, and God is veiled from this world, so the contemplative who wants to see Him must work very hard at it. Perhaps God only inflicts this fate on those necessary to His plan, and keeps everyone else—the majority of humanity—close to His bosom, awaiting the Last Day and the renewal of all things.

Perhaps half the human race isn’t being hurled off a cliff after all. Perhaps half the human race is jumping for a chance to return to their true home country. Perhaps they are being called there for important work: supporting we few, the living, through prayer.

Perhaps it is not we actives carrying a handful of contemplatives on our back.

Perhaps a great invisible host of contemplatives is carrying us.

All just a story, of course—but a story consistent with what we know, true “for all anyone knows.”

The Road More Traveled

Of course, none of this would make abortion okay. Quite the contrary: if the relatively small number of humans sent into this suffering world were only sent here because each of them is somehow vital to the fate of humanity, then tearing some of those small humans limb from limb (or poisoning them, or suffocating them, or starving them) turns out to be not just barbaric, but self-destructive. We’re killing our own reinforcements!

Abortion is, by a wide margin, the leading cause of death in the United States, beating out heart disease and cancer by a healthy margin. If you combined every single mass shooting in the United States in the past sixty years, and added up all the casualties (adults and children combined), the total dead would be less than one day of U.S. abortion deaths. I know people who nominally oppose abortion (“I’m personally opposed, but it’s not the government’s place to decide for someone else”) who look at me like I’m an insane evildoer when I suggest that perhaps it’s a bad idea for the government to mandate car seats so much longer than it did thirty or forty years ago. (Car seat laws, estimating generously, save ~400 children per year. Abortion kills approximately two thousand times more children.) It is shocking to contemplate the magnitude of the crime we have inflicted upon ourselves. Most don’t. From observation, it seems to me that many can’t.

However, looked at from a wider perspective, abortion does not change the human reality all that much. In the U.S., we currently abort about one-fifth of all known pregnancies.16 This raises the mortality rate for human beings under the age of one from around half to around two-thirds—which is where it has been for most of human history anyway. (Of course, in the long run, the death rate remains 100% for us all.)

I take some comfort in the thought that, when a child is ripped violently from his mother’s womb, he does not journey to the afterlife alone. He finds himself on a road surrounded by friends, clapping and leaping and shouting hallelujahs, processing ahead in a host larger than the living human race.

Let it be far from the hearts of the faithful that all the little children, of whom so great a multitude die every day, should perish without the merciful God, who wishes no one to perish, having provided them also with some means of salvation.

—Pope Innocent III, late 120117

---

NEXT VOYAGE: Today’s piece was planned for January 22, as my annual commemoration of Roe v. Wade, but it was delayed because I underestimated the complexity of my thesis. I still plan to publish a Worthy Reads post ASAP, but, obviously, with an article that took a week too long to write, I’m a bit backed up at the moment.

She was my age, or just about. I keep thinking about that.

What a woman my age was doing there in the middle of a Wednesday morning, in the January colds, I still don’t understand. I guess, when you feel that the nation is doing something Really Bad, you take PTO, put on a warm coat, and make your voice heard. I guess that’s America. I guess good for her.

I’ve seen the ugly events that followed from so many camera angles now I get dizzy. By now, we all have.

The moral interpretation of what happened is an exercise in Shiri’s Scissor:

However, these facts, at least, seem to be generally agreed upon:

Agents of the federal government were attempting to execute the law of the land as they understood it.

This young woman had come to believe, quite strongly, that the government’s actions were not only unjust, but illegitimate. She was immersed in a fever-pitch world of friends, social media, and news sources that reinforced her views.

So she came out to protest the government’s actions. Given her beliefs, we must agree, this was a reasonable response!

At some point, however, she made a further decision. Instead of merely protesting, she began to actively interfere with the government, hoping to prevent the actions she opposed. This is, of course, illegal. However, as a country, we only rarely actually prosecute interference with law enforcement. At worst, it’ll get you arrested for a few hours or a night. (Then you can come out the next day with huge social standing in your friend group.) Besides, she was a white woman. In the absence of some aggravating act of violence, this poor young woman probably expected lenience. I’m not sure that expectation was unreasonable. Many others had recently gotten away with worse, and she knew that.

She didn’t count on the larger environment. She didn’t realize that the law enforcement officials she was confronting were overtaxed and undertrained. She didn’t understand how ill-prepared they were to deal with the resistance from her and her allies. She had a lot of allies. They had already harassed the agents. They were on edge, twitchy, aggravated, and probably more than a little scared. The rhetoric of the past few days had been hideously ugly, often violent. The LEOs knew there were people present who wanted them dead, and knew they might not have much time to react if a lethal threat presented itself.

In the end, she started committing her little crime, but federal law enforcement officers told her to stop, to freeze right where she was. Alas, she did not! Was she panicked? Was she angry? Did she even understand the commands, in the adrenaline and terror of the moment of confrontation? We can never ask her. One of those officers, in particular, probably shouldn’t have been on the scene at all that day. It wasn’t that he was evil or criminal; he just had some things in his past that meant he might not make very good split-second decisions in this sort of context.

He pulled his weapon.

He fired.

She died.

Was she armed? It depends on whom you ask, and how you define “armed.” Law enforcement had some reasonable basis for thinking she posed a deadly threat to them, but it’s arguable whether that basis was sufficient to justify firing on her. In a sense, that doesn’t matter: it is ambiguous enough that her supporters have taken to saying that the feds “murdered” an “unarmed woman.” They warned (and are still warning) the country that “you could be next” if you just happen to find yourself “in the wrong place at the wrong time.”

Of course, this omits that “the wrong place at the wrong time” here means committing a (non-violent) crime in the middle of a tense protest against armed agents carrying out the law, which is not actually a place or time in which I regularly find myself. The killing and the subsequent rhetoric has, nevertheless, radicalized many people on her side. When skeptics point out that she was in the middle of a crime, refusing lawful orders from federal agents, the response comes quickly: “Illegal protest doesn’t warrant the death penalty.”

Donald Trump, naturally, almost immediately logged on to post some nonsense that was seemingly calculated to pour gasoline on an already raging fire. Abraham Lincoln did everything he possibly could to avert the Civil War, short of surrender. Donald Trump, on the other hand, seems to do everything he can to hasten it. I don’t think that’s his plan; I think that’s just his id. I don’t think that makes it better.

Anyway, none of these post-mortem reactions change the fact that she is dead. She was a nice woman, caught up in a revolutionary movement. In my view, the revolutionaries’ ideas were mostly (though not entirely) false, but that’s beside the point. She didn’t want to hurt anyone; she just wanted to be heard, and to protect her country from the oppression of the federal government. However we ultimately assign the blame, I think we can all agree that her death was needless, and sad, and a terrible loss for her friends, her family, and the country. Through the mercy of God, may Ashli Babbitt rest in peace, amen.

Ms. Babbitt was on my mind this week because Tuesday was the fifth anniversary of the Capitol insurrection on January 6, 2021. She was, of course, the sole fatality of that riot, and the anniversary of her killing inspired a fresh round of discussion about her.

It was startling, then, when, the very next day, something strikingly similar happened to another young woman, one Renee Good, right here in the Twin Cities.

There were differences. Babbitt had a small knife, Good a large car. The exact positions and timings are different, as the details always are. Still, the overarching similarities are striking. You could almost read this whole post up until the part where I said Ms. Babbitt’s name and think I was talking about Ms. Good!

It is therefore striking how perfectly the national narratives seem to have reversed for this killing. For the most part, the people who declared Ashli Babbitt a patriot martyr are quite convinced that the ICE agent who unloaded half a clip into Renee Good’s skull is a heroic exemplar of law and order. For the most part, the people who think Good’s “murder” proves that our government is “fascist” spent 2021 (at least as I remember it) sniggering into their sleeves about what an idiot Babbitt had been to have placed herself at the front of a riot in the first place. In both cases, two people watching exactly the same footage routinely seem to see very different things—then they see opposite things when they look at the footage from the other case.1

We all know why.

Babbitt was right-wing, Good left-wing. Babbitt’s insurrectionary political theory, courtesy of QAnon, was that the Congressional certification of the 2020 election was illegitimate. Good’s insurrectionary political theory, courtesy of BlueAnon, was that the White House’s strict enforcement of Congress’s immigration law was illegitimate. Both theories were ludicrous, but supported by partisan factions in our society. It’s almost as difficult to say “Biden won the 2020 election” (he did) in a Republican precinct caucus these days as it is to say “ICE is doing a mostly-reasonable job enforcing the clear law of the land” (it is) in a Democratic precinct caucus.

About a decade ago, five law professors ran an interesting psychological experiment. They showed 202 representative American adults—the sort of people who might end up in your jury pool—a 4-minute video of a large, tense, but ultimately peaceful protest. The law profs split their sample into two groups. They told Group A that it was film of a pro-life protest, at an abortion clinic, against abortion. They told Group B that it was film of a pro-LGBT protest at a military recruitment center, against the military’s then-current “Don’t Ask, Don’t Tell” policy. Then they asked the viewers in each group (as though they were a jury) whether the protesters had “interfered with, obstructed, intimidated, or threatened,” anyone trying to enter or exit the abortion clinic / recruitment center.

Surprise surprise: in Group A, thinking that the protesters were pro-life, the right-wingers strongly defended the protesters and the left-wingers said they were guilty of obstruction. In Group B, thinking the protesters were pro-LGBT, the left-wingers suddenly defended the protesters while the right-wingers accused them.2 That was in the early 2010s, before the age of Trump and all the bipartisan madness that has followed.

Watching the tapes of Renee Good’s death today, then, it’s hardly shocking that the two Americas are seeing two different realities. Indeed, one of the really head-turning things about it is that quite a few Americans have noticed that the other side’s reactions to Good’s and Babbitt’s deaths are hypocritical… but, somehow, they have continued not noticing their own, parallel hypocrisy!

There is only so much we can do about this. America is fraying, we all know this, and many of the forces pulling us apart are not under our control. Some of them can’t be controlled. I remain pessimistic about America’s survival. The categorical rejection of the legitimacy of both U.S. immigration law and federal immigration agents, by one of our two major tribes, represents a legitimacy crisis, which could ultimately lead to civil war.3 (For that matter, so was the other tribe’s categorical rejection of the 2020 election results.) You can’t just decide one day to embrace legitimacy, because legitimacy crises—the really dangerous ones, anyway—occur precisely in the gaps where legitimacy is not crystal-clear and is open to some interpretation. You’re going to interpret these crises through the lens of motivated cognition. That’s a guarantee. All you can do is be aware of your bias and try to correct for it.

This suggests a useful exercise in the wake of Renee Good’s death.

Try to think back to the day of the Capitol insurrection and the death of Ashli Babbitt. When she died, how did you feel about that? Not just in your brain, but in your guts?

Do you feel similarly now?

If not, why not?

Is it just because one of them was in your tribe and the other wasn’t? If it is, that’s okay. It’s human, inescapably so. We do not control our emotions. What we control is how we reason about them, and thus how we act on them. But we can’t reason about them until we acknowledge them.

If you have other reasons for feeling differently about the two killings, are those reasons real, or did your brain—deep-fried in a partisan stew lo these many years (perhaps without your even realizing it)—present them to you in a desperate attempt to stave off cognitive dissonance?

What did you think ought to happen to Babbitt’s killer? How close is that to what you think ought to happen to Renee Good’s killer?

I don’t think there’s a single, clear, right answer to What Should Happen When 30-Something Unarmed-ish Protesters Who Aren’t Quite Violent But Are Maybe Threatening And Are Definitely Breaking The Law Refuse Reasonable Police Orders And Are Then Shot Dead By Said Police.

You might take the view that law enforcement is, in general, much too quick to fire and that, in general, the law should hold them more accountable. This seems to be the view of Justin Amash, the ex-Republican libertarian:

This is a rational take, even though I disagree with it. More importantly, it is the standard Amash consistently follows, regardless of the partisan valence.

Another rational but opposed take is Andy McCarthy’s. For McCarthy, someone who creates a reasonably serious threat to a federal officer, even by carelessness, is engaged in an actionable assault against that officer, and the officer may therefore defend himself. That is McCarthy’s view4 of Good’s death. It was also his view of Babbitt’s death, which he said was “justified.”

There are differences between Babbitt’s case and Good’s case, of course, which may justify some shades of difference between how you treat them. You might, for example, think Good’s shooter is guilty of third-degree murder, but that Babbitt’s shooter is guilty of only manslaughter. Or, on the other banana, you might think that Good’s shooter should get a medal, while Babbitt’s shooter should receive only a hearty handshake and a pat on the back.

What I think you can’t believe is that one of the shooters was a hero who deserves a medal and the other a murderer who deserves life in prison. What I think you can’t justify is being furious and terrified by the one while shrugging off the other as “FAFO.”5 I’ll hear out your argument, but I’m pretty skeptical.

As for me?

Renee Good is freshly dead. Her family is in mourning. She had a child, a six-year-old, whom she had just dropped off at school before going off to protest ICE. I will not speak a word against her here, because it is profoundly immoral to speak ill of the dead when the family is still planning the funeral. This was true of Charlie Kirk and it is even more true of Renee Good, who was not a public figure.

However, Ashli Babbitt has been dead long enough that I think it is okay to tell you what I thought when I heard about her death: I thought it was sad, but largely self-inflicted.

Babbitt had allowed herself to be seduced by a false, conspiratorial narrative about alleged evils in the federal government (some of which had some basis in fact, most of which did not). She was engaged in an insurrection—an attempt to prevent, by force, the execution of one or more laws of the United States for primarily political reasons. She was not herself violent, but the man with the gun didn’t know that. Even though she was caught mid-crime, she failed to obey very reasonable police instructions. Perhaps this was not out of defiance, but just because she didn’t hear, or because she panicked and reacted poorly, or because she thought the officers behind her had told her something different. Unfortunately, accompanied by a mob of other insurrectionists, which had created a very tense, precarious situation charged with fear, she had helped eliminate all margin for error. When the trigger was pulled, I think it might well have been an error; there probably were lesser actions the officer could have taken to stop Babbitt without killing her. Yet I don’t think the shooter was to blame for her death. I don’t know about giving him a promotion, but I certainly wouldn’t have charged him with a crime.

People who break the law, create confrontations with law enforcement, and then refuse to be stopped by non-violent means should have no expectation of surviving what comes next. You may have the legal right to survive, but, in my harsh view, you have forfeited the moral right. You’ll usually survive anyway (which is good!) but, sometimes, you will die. Do not put yourself in this position unless you are prepared to die.6 Ashli Babbitt should still be alive, but the most important reason she isn’t is, unfortunately, Ashli Babbitt.

However, I could be wrong! Even if my principles are correct, and my judgment of Babbitt is fair, the facts in Renee Good’s case are not yet in, no matter how many cell phone videos give you the illusion of complete information. My purpose today is not to tell you what to think about these killings; my purpose is only to help you figure out how to think about the killings.

That is no easy task these days. Your mind is not fighting against merely personal cognitive biases, which are bad enough. Your mind is fighting against principalities and powers.

I keep talking about the possibility of some future civil war, but the truth is that civil war is a spectrum, and we are already on it. We’ve been in a low-grade civil war since at least 2020. The two rival tribes that occupy the United States are vast, rich, well-organized, and well-armed. Both of them are doing everything in their power to get you to pick a side—their side. When this war gets hot, they are going to need you to kill the people on the other side, and they are trying to prepare you for that. The tribes can’t let killings like Babbitt’s or Good’s be mere tragic exercises in stupidity; they must be made into martyrdoms or domestic terrorism. If the truth gets in the way of that, the truth will have to go. What looks like truth-telling becomes recruitment.

Partisan politics is always a little like this, but even partisans (in ordinary time) are restrained from indulging their worst impulses by a shared concern for the good of the country. That’s gone. The concern is gone because the country is gone. Legally, America clings to life, but, imaginatively, America is already over. The vibe is 1852, and I’m wondering where our Bloody Kansas might pop up.

So we are alone. It’s our measly little brains against trillion-dollar decentralized propaganda machines whose input is clever half-truths and whose output is hatred. We’re all listening to Tokyo Rose, and some of us even pay a subscription. De Civ tries not to be part of those machines, but I’m immersed in the same mind control soup as you are, so all I can do is try and hope. To keep your brain intact right now is no small victory, and even the most successful of us have gone at least a little crazy.

Unfortunately, having an intact brain could mean you’re first against the wall when the Revolution does come. Sorry about that.

Now we have a new pope, so, on the off chance Pope Leo XIV is browsing De Civ looking for ideas, this ongoing series says what I’d do If They’d Made Me Pope.

Straddling the border between Catholicism’s immutable, divine doctrines and its messy, fluctuating human governance, we find the disciplines, which are a little bit of both.

Catholic disciplines strike close to the heart of Catholic life, in a way that (for example) the formal process for investigating a possible saint doesn’t. As such, many (all?) of the disciplines are grounded in Scripture or very ancient practice. The details have evolved over time through a complex interplay of local customs, universal customs, codified rubrics, and actual canon law.

However, the disciplines form much of the warp and woof of daily Catholic life. Even though they can change, actually changing them feels like a revolution.

For example, everyone in the world knows that Catholics don’t eat meat on Fridays in Lent. This is so well-known that there’s a common story that McDonald’s introduced the Filet-o-Fish sandwich during Lent so that they could continue to sell sandwiches to Catholics during those six weeks.

The story is mostly true. Lou Groen, a Catholic in a 90% Catholic neighborhood, owned a Cleveland McDonald’s and was getting destroyed on Fridays. “Everyone was going down the street on Fridays to Frisch’s restaurant that sold a fish sandwich,” his granddaughter explained. Fridays averaged a measly $75 in sales. Groen talked Ray Kroc into allowing fish onto the menu, which saved his business and created a nationally successful sandwich.

Only Groen didn’t do this in Lent. He was losing his shirt in Winter 1961; he introduced the Filet-o-Fish on February 13, 1962. Lent that year didn’t start until March 8. So why is Groen making bank on fish sandwiches in January?

At the time, the discipline of the Church was that Catholics must abstain from meat on all Fridays of the year, which had been the discipline of the Church from time immemorial. In the early 1960s, the Vatican allowed national churches to vary the rule, so, in 1966, the U.S. National Council of Catholic Bishops (like many other national bishops’ councils) passed legislation that allowed Catholics to do an alternate form of penance on Fridays outside Lent, so (of course) the whole discipline immediately collapsed. Nobody did alternate forms of penance. They just stopped treating Fridays special. In law, the discipline remains. In custom, most Catholics only abstain from meat on Fridays in Lent, and the transition has been so complete that very few people even remember that the practice used to be quite different.

This is both an illustration of what Catholic disciplines are, and a cautionary tale about changing them. Canon law and its obscure legal processes can be changed (relatively) easily. All you have to do is tell the canon lawyers and local bishops what the new law is and make sure they follow it. The disciplines, however, are more of a living thing. To be effective, they must be received by the whole Catholic people. This is hard. They should not change lightly. They cannot change easily. The pope’s legal power to change them is unlimited; his practical power anything but.

How’s that for an intro to a pair of articles about how the pope should change a bunch of Catholic disciplines?1

Restore a Eucharistic Fast

Catholics love our bodies. We love the flesh. God created it all good. However, we are keenly aware that the pleasures of the flesh, though good in themselves, are so loud that they can make it impossible to hear the still, silent voice of God. Jesus Himself fasted frequently, and exhorted His followers to fast prayerfully. The flesh must learn its place.

One place where this is particularly obvious is the Eucharist. Since Christianity’s earliest days, worshippers have fasted from human food and drink for a period of time before receiving the Living Bread in Holy Communion. This gives the recipient time and space to cultivate an appropriately receptive spirit.

Unfortunately, today’s Eucharistic “fast” is a joke. Canon law currently requires a fast from food and drink2 for only one hour before communion. Not before Mass; before communion, which typically occurs 40-50 minutes into Mass. What this boils down to, then, is a “don’t eat during Mass” rule, with a small “no snacks in the car on the ride over” proviso. It is worthless. My grandparents (who were the furthest thing from fanatics) refused to believe that the Church would impose such a ridiculous rule, and, as far as I know, they went to their graves maintaining a fast of one hour before Mass, which was what they assumed the rule must actually be. Meanwhile, other Catholics today often have no idea the rule even exists, or ever existed!

Throughout the second millennium, the Eucharistic fast began at midnight and ran until the Eucharist was consumed. This is confirmed both by Thomas Aquinas and the Council of Trent. Earlier norms varied. (For example, some jurisdictions began the fast at sunset on the previous day.) However, all traditions agreed that the Eucharist ought to be the first thing a Christian consumed on the day of reception.

This worked well for the time, since people were mostly asleep in the middle of the night and Mass began in the morning, so it was effectively a fast of perhaps three to six hours. In the modern era, as I understand it, the dire pastoral constraints imposed by World War II pressured the Church to enable Masses at different times of the day. Once enabled, I guess it was hard to put the genie back in the bottle. However, the midnight-to-Eucharist fast is much more difficult if Eucharist is at 6:00 p.m. instead of 6:00 a.m.! The Church sought an accommodation to enable evening Mass without making the fast onerous.

In 1953, Pope Pius XII offered a “concession,” which mitigated the fasting requirement to just three hours for those attending evening Mass. In 1957 (perhaps finding such selective discipline unworkable), Pius extended the concession universally, but he nevertheless “strongly exhort[ed]” everyone to continue observing the ancient midnight fast. He further insisted:

All those who will make use of these concessions must compensate for the good received by becoming shining examples of a Christian life and principally with works of penance and charity. [sic]

LOL. ROFL, even. My understanding is that everyone used the concession, and nobody felt particularly obligated to become a shining example of Christian life. Sometimes I read things from popes that make me wonder whether they’ve ever actually met a Catholic.

In 1964, shortly after the Second Vatican Council, Pope St. Paul VI shortened Pius’s plausible three hours to today’s single useless hour. To this day, I wonder whether Paul thought he was imposing the requirement my grandparents thought he was imposing (fast for an hour before Mass), but what he signed reduced the Eucharistic fast to an hour before communion, effectively abrogating a universal spiritual practice dating back to before Augustine, and quite possibly all the way to the Apostles.

The argument at the time was that barriers to the Eucharist needed to be torn down, but, if that was true, then surely we have gone too far in the opposite direction. The Church feared a world in which the overscrupulous received only rarely (sometimes as little as once per year!), but we now live in a world where the underscrupulous receive weekly, very often in a state of serious sin, “eating and drinking judgment upon themselves,” as Scripture says. Confessors today must remind penitents that this, too, is a serious sin. Many never hear them, because loads of people in the weekly communion line haven’t been to confession in years (which is also a sin!). The Eucharist should never be fenced off from the faithful, to whom Christ gave it as His greatest gift, but maybe a nice little gate? If nothing else, the midnight Eucharistic fast provided a good excuse to teenage boys who wanked the night before and needed a parent-safe excuse for avoiding the communion line. The one-hour fast is useless for this, requiring the teen in question to perform comical imbecility about ten seconds before getting in the car.3

I do genuinely love and make great use of evening and night Masses, which have thrived thanks to these concessions. One of my favorite Masses in college was the “Last Chance Mass” at the local minor seminary, which was a beautiful little Mass, always packed to the gills, offered at 9:30 p.m.! I am also aware of the danger of imposing disciplines too enthusiastically on a flock that has grown used to their absence. Nevertheless, the Eucharistic fast was good for the flock and good for the Church. We effectively do not have one.

As a result of their decentralized ecclesiology, the modern Eastern Orthodox have a stubborn adherence to received traditions, with minimal accommodations to modernity. In the fasting department, this has served them very well. Current E.O. practice in general is a midnight fast before morning Eucharist and a six-hour fast before any evening Eucharist (but, of course, Orthodoxy’s decentralized ecclesiology admits considerable local variation). Since Catholicism already tried having different rules for morning and evening Masses (and, apparently, it didn’t work), Pope Me would simply impose a universal six-hour fast. For people who sleep until 6:00 a.m. and Mass in the morning, this is functionally the same as a midnight-onward fast, but it makes evening Mass possible.

This would undoubtedly take many years to sink back in. Eighty years in abeyance will make any discipline strange and foreign-feeling, no matter how many thousands of years of life it had before that. Still, we’d get it into the examinations of conscience, we’d have priests preach about it, we’d probably have to sigh write a document explaining it to the world (something my papacy would steadfastly avoid in general). Slowly but surely, this valuable and venerable spiritual practice would return to the West.

Restore Meat-Free Fridays Year-Round

All that stuff I just said, but for the Friday fast.

As I explained in the intro, it is already technically the rule that, on Fridays, Catholics are to either abstain from meat or perform “alternate forms of penance.” The alternate forms of penance did not take root, but everyone abandoned meat abstinence anyway, so, in most of the Catholic world, the rule is now all but forgotten.

I would abolish the alternate form of penance.4 The entire Church would return to meatless Fridays. Kids at school would stop looking at my kid weird when she says she can’t have sausage pizza because it’s Friday. My kids would stop thinking it’s some kind of weird Heaney-family tradition rather than the still-binding universal law of the Church.

This would, again, take time. The U.K. Catholic Church restored meatless Fridays in 2011. A 2021 survey of Catholics in England and Wales showed that, ten years later, about 26% of self-identified Catholics in the U.K. were actually following the new abstinence rule5 and about 41% of U.K. Catholics had at least changed their diets because of the rule.

This is actually pretty good! When surveying Catholics, you must remember that the majority of the surveyed population is not religiously Catholic, but only culturally Catholic, with marginal attachment to the Church. Religious Catholics attend Mass weekly. (Failure to do so is a grave sin.) In the U.K., only 41% of self-identified “Catholics” actually attend Mass at least monthly, and only 31% attend at least weekly.

If we make the reasonable assumption that the overwhelming majority of Catholics who are following the meat-free Friday rule are also weekly Mass-goers, then this survey data shows that a majority of weekly Mass-goers are following the new abstinence rules, only ten years into their implementation!6 Give it another generation or two, and everyone will have forgotten the anomalous years where Catholics ate meat on Friday outside of Lent.

Strengthen the Lenten Fast

All that stuff I just said, but for Lent.

Catholics currently abstain from meat on Fridays in Lent. (In Lent, no alternate form of penance is permitted.) On Ash Wednesday, we are also required to refrain from eating between meals, and to cut back from three regular-sized meals to one regular-sized meal and two small meals. In practice… those two “small meals” typically look pretty regular to me.

Compare this to Eastern Orthodox fasting, which is much closer to the historical norms of the Church. On every weekday in Lent, the Orthodox abstain from both meat and dairy. (Many add oil, fish, wine, and shellfish, at least during Holy Week.) On every weekday in Lent, they eliminate breakfast and reduce the size of lunch and dinner. Of course, the Orthodox place great emphasis on individual spiritual direction. Every source I have seen insists that their fasting rules are ideals for those capable of attaining them, not universally binding laws as in Catholicism. Still and all, they’re beating us on Lenten dietary fasting like Keith Moon on the drums.

On the other hand, communal dietary fasting is not the only kind of fasting there is. Catholics also “give something up for Lent,” such as desserts or video games. This is universally seen as an ordinary Catholic discipline. Nearly all Catholics do it, even those only marginally attached to the Church.

This is surprising for two reasons. First: as far as I can tell, the practice of “giving something up for Lent” in this individual way did not exist before 1900. Here’s a Google Ngram:

This practice appears to have arisen in direct response to the Church loosening its dietary laws. That’s the second reason it’s surprising! In the early twentieth century, the Church repealed a lot of official penitential disciplines, while encouraging Catholics to either voluntarily keep the practice or develop “alternate forms of penance.” We saw this already with meatless Fridays and the Eucharistic fast. This always failed. Catholics simply abandoned the discipline altogether.

Except here. For whatever reason, when Lenten fasting was rolled back, Catholics did, apparently, adopt alternate forms of penance en masse. I would love to read a paper on why this was received so differently.

The private forms of penance we practice are not perfect. Many Catholics, operating without real guidance from their pastors, try to give up sins or vicious habits for Lent, like “pornography” or “doomscrolling.” You aren’t supposed to give up bad habits for Lent. You are a Christian. You are supposed to give up bad habits all year round! The point of fasting is to give up good stuff. As Pope, I would gently clarify this.

Nevertheless, the private forms of penance are a good, healthy discipline. If the pope were to bring back six-days-a-week fasting and abstinence out of the blue, there is a real risk that he would fatally disrupt the modern private practice while failing to actually restore the ancient practice. When it comes to the disciplines, the pope must be humble about what he can practically accomplish. Yet the Orthodox show us that we really could be doing more, as a Church, to prepare our hearts for the Lord in Lent.

So, if I were pope, I would make a prudent, fairly modest change: restore fasting (in addition to meat abstinence) to all Lenten Fridays. If that went well, then, ten years later, I might add Wednesdays and/or dairy abstinence and/or abstinence from sex.7

When We Feast, We Feast!

A very wise priest8 once said, “Ah, Catholics! When we feast, WE FEAST! When we fast… we cheat!”

Why shouldn’t we? We are an Easter people! Christ has defeated the grave! His resurrection and the joy that comes with it is always sprouting up unexpectedly, even in seasons of penance.

For example, all fasting is suspended on holy days. What counts as a holy day, you ask? There are 16 solemnities on the calendar (not all of them include an obligation to attend Mass)… plus every Sunday on the calendar is a holy day, so throw in another 52. If you are giving things up on a Sunday in Lent, stop. Go feast. The GIRM demands it.9 That’s why Catholic Lent has 46 days in it: 40 days of fasting, like Christ in the desert, plus 6 Sundays of feasting. This dates back at least as far as Pope St. Gregory the Great.

(The Orthodox do it even harder. For all their rigorous fasting, they suspend it on both Saturdays and Sundays—following the Canons of the Council in Trullo aka the Apostolic Canons—which means they make Lent even longer to get a full 40-day fast in.)

Here’s another, less known “cheat”: on the Catholic calendar, days are measured midnight-to-midnight… except Sundays and solemnities. These holy days begin at the evening of the preceding day. Hence the Liturgy of the Hours for Sundays always has Evening Prayer I (for Saturday night) and Evening Prayer II (for Sunday night). This is also why vigil Masses in the evening on “Saturday” fulfill the Sunday obligation, but Masses on Saturday morning (for example, typical wedding Masses) do not. Liturgically speaking, it’s already Sunday! So quit fasting! There are few things better than pouring yourself a tall glass of chocolate milk with some Oreos after dinner on a Saturday night in Lent.

In recent years, I have learned that my view is controversial. Some learned commenters argue that there is a distinction between a Catholic liturgical day and a Catholic legal day. The liturgical day, they agree, runs sunset-to-following-midnight, but penances and fasting (they argue) are tied to the legal day and therefore run midnight-to-midnight.10 This strikes me as unnecessarily complicated and spiritually baseless. It seems absurd that I could celebrate the Feast of St. Joseph in the evening because it is liturgically his solemnity, but then be barred from actually feasting St. Joseph because it is legally not his solemnity for six more hours.

Fortunately, the premise of this series is that I’m the pope. Pope James is officially clarifying this one in favor of the “cheaters,” hands down.

One more change I would make in the spirit of feasting: under current law, Friday fasts are suspended during the octave of Christmas and the octave of Easter. To further emphasize the joy of the Church, Pope Celestine VI (me) would suspend Friday fasting for the entire season between Christmas and Epiphany and between Easter and Ascension Thursday. The Incarnation and the Resurrection are the most important events in human history, and our joy over them should not be interrupted. When we feast, we feast!

Ascension Thursday on Ascension Thursday

The Feast of the Ascension is a high holy day. All Catholics are obligated to attend Mass. It falls on the fortieth day after Easter. Traditionally, there’s a whole octave of celebration after it—eight days!

However, in many countries where Ascension is not a public holiday (including the U.S.), the feast is transferred to Sunday. I don’t mind if, say, Immaculate Conception occasionally gets transferred or abrogated, but, come on, Ascension is on a Thursday every year. It always gets transferred to Sunday.

That’s just silly. This is a major feast. The Risen Christ rose up into Heaven and we’ve been waiting for Him ever since. Go to Mass. Permission to fiddle with Ascension Thursday is revoked.

Plus, if Ascension Thursday is on Thursday and it’s celebrated as an octave, with no fasting in the octave… that’s not one, but two extra Meat Fridays! When we feast, we feast; when we fast…

Well, you know the rest.

NEXT VOYAGE:11 more disciplinary changes, focusing on the liturgy and priestly formation, including my pitch for married priests. (Hear me out!) In other work, I think I’m due for a Worthy Reads and I’m torn between writing about moral immigration principles, my pessimism about mass killings like the Annunciation massacre, and a (final?) follow-up on my lengthy obsession with net neutrality.

For the rest of this series, see:

7

One should be very careful about adding any penitential abstinence from sex. The days on which faithful Catholic couples can have sex is already, in many cases, very limited. Couples using Church-approved fertility awareness methods to space their children are already prevented from having sex for about half of every month. (More, if anyone involved has qualms about sex during the bloody days.) Catholics with irregular cycles or who are nursing may have far less opportunity. This is in addition to the usual practical barriers to having sex: they’re exhausted from taking care of their existing children, he has a headache, she has a cold. Some couples have military deployments to contend with, or debilitating illnesses, other large obstacles to regular conjugal life.

When you take all this and start adding extra days where the Church forbids sex just because of the liturgical season, the burden gets heavy much faster than you’d expect, as the sex-abstinence days consume some of the sometimes very limited opportunities good Catholic couples have for intimacy. There’s a notorious flowchart from Prof. James Brundage’s Law, Sex, and Christian Society in Medieval Europe that makes this point rather emphatically, even though it is significantly exaggerated:

This is exaggerated because it takes the most extreme position ever suggested by a penitential, with absolutely no nuance, and suggests that it is the actual teaching of the medieval Church, or the practical reality on the ground for medieval peasants. Neither is the case. For example, the Church has occasionally discouraged, but never forbidden, sex on a feast day. Far from instructing couples “not to enjoy it,” the Church long taught that couples have, to some extent, a moral obligation to earnestly pursue and obtain orgasm for both husband and wife. I present a more balanced view of the Church’s traditional sexual teachings in my translation of Bishop Kenrick’s De Usu Conjugii.

That said, I’m sure medieval penitential guides can be found which teach every single one of these things, so it’s not that Brundage was wrong, just that this flowchart, standing alone, lacks context. (Heck, for all I know, Brundage included all that context in the actual book, but the chart has become independently famous and is nearly always presented as a guide to the actual sex rules for medieval peasants.)

Anyway, I digress. My point was that one must be cautious about adding sex-abstinence days to the Church’s official fasting calendar.

However, at the same time, sex is the perfect thing to fast from. It is hugely good, and it is hugely distracting from the higher things of the Lord. Adding six sex-free days to the Church calendar would probably do quite a bit more good than harm… but adding forty or fifty almost certainly wouldn’t.

Q: Is ICE abducting people?

No. Immigration and Customs Enforcement is a federal law enforcement agency. It was established in 2003, but its predecessors date back to the Immigration Act of 1891. Every Congress has voted to fund ICE, every year, since its creation.

As a law enforcement agency, ICE has the authority to detain and arrest people for legitimate law enforcement purposes, if consistent with the Fourth Amendment.

Q: Whom can ICE try to remove from the United States?

If ICE has probable cause showing that a person is not legally present in the United States, it may initiate removal proceedings against that individual.1

Q: That’s it?

That’s it. It does not matter if someone illegally present in the United States never committed a single crime (even speeding) or if he murdered a hooker. It does not matter if he has been overstaying his visa and paying taxes peacefully for 27 years or snuck over the border last week. It does not matter if he is a family man or an identity thief (or both). It does not matter if he was brought here at age 4 and has faithfully attended every check-in, or if he was applying for a green card and on the verge of getting one.

ICE generally makes the worst people its highest priority, but that doesn’t mean it ignores everyone else. Indeed, generally speaking, when ICE chases down a convicted rapist illegally in the United States, it finds a number of other people in the process—often people whose only crime is entering the country illegally.

Q: Wait, is entering the country illegally a crime? I thought it was just a civil offense, like a traffic ticket.

Illegal entry into the United States is a federal offense under 8 USC 1325, carrying a maximum prison sentence of up to six months on the first offense (higher on subsequent offenses). That makes it a Class B misdemeanor (18 USC 3559), which means it is alternatively punishable by a fine of up to $5,000 plus an additional civil penalty of up to $250. That’s quite a bit more than my worst traffic ticket.

ICE frequently declines to prosecute suspects under this statute, because it is a criminal charge that requires a jury trial, proof beyond a reasonable doubt, and all the bells and whistles. It’s much easier (and cheaper) to just send them home. Basically, ICE is willing to pretend a foreigner ended up in America by some elaborate and hilarious mistake (“Whoopsie! Musta takin’ a wrong turn at Albuquerque!”), because ICE thinks it’s better to just send people home instead of punishing them plus sending them home.

That last part seems to be where people get the idea that it’s all just a civil offense. ICE frequently shuts its eyes to the criminal offense because it’s too much of a bother. Illegal entry is a civil offense only as an act of mercy.

Even then, the U.S. prosecutes this crime tens of thousands of times every year.

(That said, worth noting: overstaying a visa is not a crime. However, ICE can still remove anyone who overstays a visa from the country.)

Q: How can ICE be so heartless?

ICE didn’t get a vote. We did.

What I just described are the immigration laws of the United States. Our Congressmen wrote and passed them. We, the People voted for those Congressmen. ICE merely carries out our will under the Constitution. That’s what it means to have a rule of law in a democratic republic.

Many Congressmen have made many attempts to change these laws in order to create exceptions in sympathetic cases. President George W. Bush tried this.2 Sen. Marco Rubio tried it. President Barack Obama tried it repeatedly, and became so frustrated with Congress's refusal that he created an illegal program to override federal immigration law, a desecration of democracy that led directly to President Trump's alarming ability to also urinate over whatever Congress tells him to do.

Every time a party tries to liberalize American immigration law, it is punished severely at the ballot box. Bush’s legacy was Obama. Obama’s legacy was Trump. Even within the Democratic Party, Joe Biden defeated many immigration reformists in the 2020 primary, in part, by trying to be basically normal on immigration… then lost the 2024 election pretty specifically by not being normal on immigration. The American people have consistently and repeatedly expressed their strong view that people have to come into our country “the right way” in order to be allowed to stay in it.3

If you don't like that, I understand! I am the great-great-grandson of an immigrant, the superb Kate Durkin. She was considered very undesirable (because Irish), but she was admitted anyway because, in the 19th century, the United States had open borders. Anyone who wanted to come here could come here! I am here because of that generous policy!4

However, if you don't like these laws, your beef is not with ICE, but with clear and durable bipartisan majorities of the American people. I am not writing this article because I think U.S. immigration law strikes the correct balance between protection and generosity. I may write about that separately, but I am writing this, today, because I’m seeing so many nuclear-overheated takes treating ICE as some kind of lawless rogue secret police re-invented by the second Trump Administration to commit mass racisms, including from people who ought to know better.

Perhaps, now that immigration law is finally being enforced, it will become less popular, and this will all change at the next election. Until then, however, ICE is carrying out the Constitutional mandate. The White House must “take care that all the laws be faithfully executed.”

The scandal is not that this White House is following that oath at last; the scandal is that so many previous White Houses aggressively undermined it; the scandal is also that this White House so frequently undermines the rule of law in other contexts. We should damn the White House for that hypocrisy, but not for finally deigning to enforce the law. You cannot object to the Trump Administration on rule-of-law grounds5 and broadly oppose ICE enforcing the rule of law.

What ICE is doing right now is what every American president swears to do, in a solemn oath made before the entire country and before God.

There are many people who do not acknowledge this. (Many of them are on Reddit and mad at me.) This faction insists on characterizing ICE arrests as “kidnappings” and hype every justified use of force as a crime against humanity. These people reliably have no interest in the due process violations they allege. They think the immigration law the American people have created is fundamentally unjust and want it cancelled immediately, but they know that position is very unpopular, so they grasp whatever thin reed they can find and start hammering ICE with it. When you show all the holes in their evidence, they don’t acknowledge it, they don’t update their opinions, they just move on to a new argument. When they run out of arguments, they call you names and say, “Imagine thinking [very normal thing] is normal.”6

I mention these people because they are very, very loud right now, a lot of people are listening to them, and you should not listen to them, because they are actively trying to deceive you.

Q: Wow. Oof. Alright. What happens once someone is in removal proceedings?

In a removal proceeding, the individual is brought, “without unnecessary delay,” before a federal official called an “immigration judge” (not a real judge) whose job is to hear ICE’s evidence, the suspect’s defense, and issue a ruling. ICE can arrest and initiate removal proceedings with relatively little evidence (probable cause), but, by this hearing stage, ICE must show proof (clear and convincing evidence) that the individual is not legally present in the United States.

If this federal official agrees with ICE, he issues an order of removal. The suspect may appeal this decision until it gets to a real judge, and can potentially go all the way to the Supreme Court. Once appeals are exhausted, the order becomes final and ICE may return the individual to his nation of citizenship, or to another nation that agrees to take him.

Q: Are people in removal proceedings allowed to live normal lives while they await a verdict?

ICE has the option to detain someone in removal proceedings, or to release them on bond or parole to lead normal lives. In most cases, this is purely at the White House’s discretion (8 USC 1226), and Congress explicitly gave ICE the power to revoke bond or parole, at any time, for any reason.7

For much of ICE’s history, it has been pretty generous about granting bond. In the absence of aggravating circumstances, ICE has ordinarily granted bond to anyone who isn’t a flight risk or a danger to the community. However, several things changed in recent decades, which rendered that system non-functional:

FIRST: the number of people unlawfully present in the United States exploded, overwhelming the system. According to Brianna Nofil’s very anti-enforcement book, The Migrant’s Jail, immigration detention rose by a factor of ten between the Immigration & Naturalization Act’s passage in 1952 and the early 2020s. (It doubled again in 2025 alone.) Over the same seven decades, the U.S. population only doubled once. Removal proceedings that once might have taken weeks can now take years to move from initial arrest to actual deportation.8

It’s one thing for someone unlawfully present to “build a life here” for a few months. It’s quite another for him to spend a decade, marrying, having children, and the like. When his final order of removal inevitably arrives, it’s going to do a great deal more damage to a whole lot more people.

SECOND: our limited capacity for processing immigration cases depends on many people caught unlawfully in the United States not fighting it. Instead, they can voluntarily get on a plane and go home. After all, that’s the honorable thing to do. You get caught breaking the law, you ought to admit you broke the law, stop breaking the law, and be grateful you aren’t being prosecuted as a criminal.

However, the possibility of being able to stay in the United States indefinitely seems to have created a different calculus, at least for many people. A large share of people illegally present, who know they are illegally present, now decide to fight their cases in court. This is expensive, but it keeps them in the U.S.A. for years at a time. This makes the already-long backlog even longer, creating even stronger incentives to fight cases and delay removal—a vicious cycle.

THIRD: The U.S. has generous asylum laws (which is good!) that promise individualized review to each person applying for asylum here. This is a slow, expensive process. It was designed to help relatively small numbers of people escape political and religious persecution, like the Jews fleeing Hitler (whom we turned away at the border under our old laws). Today, however, advocates for those accused of unlawful presence have learned that making an asylum claim, even a very weak one, can extend the process for years. Meanwhile, the claimant would get released into the U.S. mainland to start a life here in the Land of the Free until his distant court date. Asylum requests were under 100,000/year during the early 2000s. They surged to about 350,000/year in 2016, then skyrocketed when President Biden was elected and instituted more generous asylum rules. In 2023, there were well over a million new applicants for asylum (across some 800,000 separate claims). The system was not capable of handling this flood of claims, so everything slowed down more… and anyone who could get into the country now could stay even longer, even if they knew they had no right to be here, even if they got caught.

FOURTH: Someone caught by ICE who then voluntarily agrees to leave the country (without forcing ICE to go through the full legal process) is usually barred from re-entering the country for ten years. This creates a strong perverse incentive: if someone is caught and fights their case, they can continue to live in the U.S. and pursue alternative means of legal immigration in the meantime. If they agree to leave, they not only lose whatever life they’ve built here; they are also cut off from any hope of restoring it for at least a decade! Our legal immigration system is extremely slow, so sending these people to the back of the line may keep them out of the U.S. until they are elderly. You might say, fair enough, they broke the law—but, obviously, that risk pressures a lot of people into fighting their cases who might otherwise have given in and gone home voluntarily.

Much of what is crushing the immigration system, then, stems from the strong incentives we created for people not legally present to stay here and continue living their lives while fighting their (often hopeless) cases in immigration court for years and years. One of the striking things about the Kilmar Abrego Garcia case was its protracted timeline: he entered the country illegally in 2012, he received a final order of deportation in 2019,9 and then… nothing happened until 2025! He just kept living his life! This seems to happen a lot in our immigration system.

When you know you’re legally in the wrong, fighting it is an abuse of the system, but you can understand why people do it anyway.

In this context, ICE has made the obvious move: it has changed its policies to make abusing the system less attractive.

This began under the late Biden Administration, when President Biden curtailed asylum claims and made it harder for asylum seekers to enter the U.S. while their cases were pending. It continued under Mr. Trump. ICE is now largely putting people in immigration detention to await their hearing dates instead of allowing them out on bail. It is routinely revoking existing bail and parole. This preserves the due process rights of every single person accused of illegal presence in the U.S., while making it much less tempting to abuse that system. Abuse no longer gets you years of freedom in the U.S. mainland; it only gets you a cell in a detention facility while you await your court date.

I think pretty much everyone will agree this is unfortunate. There are a lot of sympathetic immigrants, even those with no legitimate legal claim, and it is kind to be generous with them. If this new approach works, and people without a legal right to be here stop flooding the system with doomed cases, we can hope that ICE will, in the future, find itself in a position where it can return to its prior approach.

…Or the American people will sour on detention altogether, elect new leaders with new policies, and end most immigration detention. However, the consequences of that choice are obvious. Indeed, we already saw the consequences during the Biden Administration! The American people probably have to decide whether they prefer immigration detention or very large waves of illegal immigration. While alternatives are available,10 few are politically plausible.

Q: But I know people who are stuck in immigration detention even though they had legal status?

In every single case I have encountered where someone made this claim, the detained person did not actually have “legal status” (i.e. the right to be in the country).11 They were instead enrolled in a bail or parole program, such as Alternatives to Detention (AtD) or Deferred Action for Childhood Arrivals (DACA), which was either revoked or which provided no shield against immigration detention and removal in the first place. In some cases, they even had a final order of removal already, but the Biden Administration had placed them in AtD anyway, because President Biden simply didn’t want to remove them, even though the law demanded it.

Maybe the person you know is an exception! Maybe your neighbor really had some legal shield against ICE’s discretionary detention power and ICE ignored it! I don’t know. I don’t know you or your neighbor or the facts of his case. All I can say is that I haven’t seen that yet.

Q: Can ICE arrest anyone else?

Congress has granted ICE broad authority to arrest people, including citizens, if ICE has probable cause to believe they have committed other crimes, especially crimes committed in the presence of ICE officers. (8 USC 1357(5))

This is not an unusual power. Many law enforcement agencies can arrest someone, even without a warrant, especially when that person commits a crime in their presence. Of course, they still have to make a probable-cause showing to a judge within a couple of days, at most. This creates a ton of drama in police procedurals: “I know you think he’ll kill again, Higgins, but if you can’t convince a judge he’s the murderer in the next sixteen hours, the chief says we have to cut him loose!”

When ICE arrests a person for a non-immigration crime, those rules apply. They must have probable cause at the arrest. They must show that cause to a judge to continue holding that person for more than a very short while. They must find another law enforcement agency willing to deal with it and turn the person over to them, because ICE is only equipped to prosecute immigration violations. The accused must be convicted by a jury of her peers with proof beyond a reasonable doubt in order to be punished.

Federal law declares, “Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with” any federal agent in the performance of his duties has committed a crime, with a prison sentence of up to a year. This means ICE agents can arrest someone they believe, on probable cause, is impeding or intimidating their officers on the job.

On the other hand, if ICE can’t find another agency willing to take on the case, or if the evidence isn’t clear-cut and proved beyond a reasonable doubt, or if they just have too much else going on that day… ICE will often find itself in the position of releasing people they just arrested, even when it is fairly clear that those people committed federal crimes. ProPublica collects 130 such cases, but, in typically dishonest ProPublica fashion, breathlessly reports the fact as a scandal proving some sort of malfeasance by ICE, rather than a lot of mostly-guilty people getting off the hook because evidence was inadequate.

Q: Aren’t people in ICE custody routinely “disappeared”?

No. Like most (not all) law enforcement agencies in the modern era, ICE has a detainee registry and an online portal where you can search for them. They have a website listing their locations and describing visiting hours, lawyer hours, and ways to send gifts to detainees.

Also, of course, unlike most prisoners, people detained for immigration violations usually have the option to leave, in fairly short order, by accepting voluntary departure to their home country.

Like any real-world detainee tracking system, ICE’s detention records have hiccups and oversights. For example, Florida’s “Alligator Alcatraz” was a state system, not integrated with the federal system, and so detainee tracking there was, by all accounts, horrendous. However, as in any real-world detainee tracking system, these problems appear to be the exception, not the rule.12

Moreover, I suspect conditions in immigration detention are little better than conditions in U.S. prisons. It has been related to me by people I trust that the condition of U.S. prisons is miserable and unfair. This is a legitimate concern, to say the least.

However, to be “disappeared” is to be pulled into a gulag archipelago and/or summarily executed with no opportunity to make your case to a judge or jury, no access to legal representation, and no real contact with the outside world, with friends and families deliberately kept in the dark about your whereabouts for an extended period of time. (You certainly can’t just leave!) ICE arrests do not remotely resemble that.

(However, see below for a discussion of the White House’s invocation of the Alien Enemies Act, which did resemble that.)

Q: But sometimes ICE takes people in unmarked vans wearing unmarked uniforms!

For what it’s worth, I don’t think this is a good policy. Eventually, someone getting arrested for an immigration violation is going to legitimately believe she is being abducted by a cartel, she is going to be armed, she is going to pull out a gun, and people are going to end up dead. If this happens (and, if the unmarked-everything policy continues, I’m confident it will), those deaths will be entirely ICE’s fault, not the person they were trying to arrest.

However, this is not a “disappearance.” People arrested in this way show up on the detention tracker in 48 hours like always. There’s rarely any genuine ambiguity about who is doing the arresting or why. Plainclothes detectives have been doing this for years.

On top of that, it seems to be pretty rare. Every ICE interaction I’ve seen in the Twin Cities involved officers with ICE/ERO/Police clearly labeled on their obvious police vests, back and front. Perhaps ICE reached the same conclusion I did, and stopped doing the stupid “unmarked” thing?

Q: Is ICE grabbing people off the street just because they look Black or Hispanic?

It certainly doesn’t look like it.

In July 2025,13 during street arrests and similar activities, ICE arrested some 4,494 persons who had no criminal record and no final order of deportation. If ICE were just arresting people who looked different, this is the statistic that would show it. The vast majority of Black people (96%) and Hispanic people (79%) in this country are citizens, so, if a government dragnet arrests a bunch of Hispanic people just for their skin color, we would expect about four out of five of them to turn out to be U.S. citizens. The ratio would be even higher in this dataset, because we’re already excluding people with final orders of deportation.

Of the 4,494 immigration suspects arrested in July, 209 have been released (<5%). 30 won their cases and received some form of formal relief. The others were released without much detail, but it seems safe to assume that ICE realized that they were likely to win relief in some form and pre-emptively granted it themselves. Zero—I repeat, zero—of those arrested were U.S. citizens.

I don’t doubt that there are racists in ICE ranks. There are racists everywhere, and it doesn’t take a genius to see why racists might disproportionately flock to join the ranks of Immigration and Customs Enforcement. Nevertheless, ICE policy appears to be constraining them, at least as far as arrests go.14

ICE’s policy, which it recently defended in the Supreme Court (more on that below), is that no one can be lawfully taken into custody, or even questioned, on the basis of skin color. Skin color (or ethnicity) is never a sufficient basis for probable cause, or even reasonable suspicion.

Q: But I read a Cato Institute study that said 1 in 5 ICE arrests are random completely innocent Latinos on the street!

That is certainly how that study’s findings have been communicated, and I am quite confident that the Cato Institute intended their findings to be miscommunicated in precisely that way. They knew what they were doing.

However, you now know enough about federal immigration law to see the sleight of hand in their headline. What they actually wrote was, “One in Five ICE Arrests Are Latinos on the Streets with No Criminal Past or Removal Order.” See it?

That’s right: many people with no criminal convictions or a final order of removal still lack a legal right to be in this country, and the law therefore instructs ICE to apprehend them and remove them from this country. They are not citizens. They are not even innocent. Aside from those brought here as children, they chose to enter this country unlawfully. As we saw above, ICE is finding them pretty reliably, with few false positives.15

Q: Whom can ICE question?

As federal law enforcement officials, ICE agents have the power to detain individuals briefly for questioning if they have reasonable suspicion that that person has violated U.S. immigration law, or is involved with a violation of U.S. immigration law by another person. These brief detainments typically last just a few minutes, but may last a little longer. During questioning, ICE may not conduct a search without consent (unless the answers give them probable cause). This is similar to a police officer’s authority to pull you over and ask you questions and frisk you if you are driving a vehicle in an area where an armed criminal recently fled in a car of similar color. This is not a violation of your constitutional rights, even if the officer is completely mistaken about the color.

These short detentions are sometimes referred to as “Terry stops,” named for a 1964 Supreme Court case that established their legality. In that case, an Ohio police officer saw three men walking back and forth in strange patterns in front of a store. He thought they were casing the joint, so he stopped them, frisked them, found several illegal weapons, and arrested them.

To dispel all doubt about ICE’s authority in these matters, Congress has explicitly granted ICE the authority to “interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States.” This belief must be grounded in some reasonable, articulable facts (more than a hunch), but almost necessarily falls far short of proof, or even hard evidence.

However, “the dude looked Hispanic” is not enough to justify questioning someone. Race alone is never sufficient to meet even the low bar of reasonable suspicion.

Q: Hang on, didn’t the Supreme Court just say ICE could question people based on skin color?

Again: that’s how the case Noem v. Vasquez Perdomo was reported, because our media’s strategy for reporting Supreme Court cases is (and always has been) to read only the lead opinion by a progressive justice and then report everything in that opinion it as absolute fact. However, that’s not what the case held. Some legal history:

In the 1975 case United States v. Brignoni-Ponce, a Border Patrol agent in Southern California pulled over a car for suspected illegal immigration and searched the vehicle. Both passengers had indeed entered the country illegally (and were arrested), and the driver was arrested for knowingly transporting such persons. However, there was a problem: the agents had pulled the car over in the first place solely because the people in it looked Mexican. The Border Patrol admitted this. It was pure racial profiling.

The Supreme Court ruled 9-0 that this was an unreasonable search which violated the Fourth Amendment, because pulling someone over requires at least a “reasonable suspicion” grounded in “articulable facts.” The unanimous court explained that race can only legitimately be one factor in establishing reasonable suspicion. For example, if a car filled with people who appear to be from Mexico, of a make and model typically used to transport people over the border, is spotted late at night, near the border, that is enough to establish reasonable suspicion. However, race cannot ever, by itself, establish reasonable suspicion. In the words of the majority (which was 8-1, Douglas dissenting, on this point):

The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens.

This year, in the Noem case, ICE was questioning people (not arresting them) based on a combination of the following four factors:

1. the types of job they worked (people unlawfully present disproportionately work in certain kinds of jobs)

2. presence at particular locations (people unlawfully present are disproportionately found at certain places, like car washes and construction sites)

3. language and accent (people unlawfully present disproportionately speak languages other than English, or speak English with a heavy accent)

4. apparent race or ethnicity.

ICE policy was and is that some of these things in combination can form the basis for reasonable suspicion to make a Terry stop and ask a few questions. (In particular, race by itself could never justify questioning.) This policy appears to fit squarely within the four corners of Brignoni-Ponce, a fifty-year old precedent. An L.A. district judge, however, ruled16 that it did not. She ruled that ICE could not use any of the four factors, by themselves or in combination, to establish reasonable suspicion.17 Frimpong’s order didn’t just defy Brignoni by telling ICE they couldn’t consider race at all; it went further than that, and forbade ICE from even considering other, more important factors, like employment and location. Her order would have effectively shut down ICE raids.

Is ending ICE raids good policy? Perhaps. Would it be good politics for the GOP? Looks that way.18 Is it what the Fourth Amendment requires? Not according to Brignoni-Ponce, a fifty-year-old precedent. This Court rarely overturns precedents, and regularly goes out of its way to avoid doing so, so it was certainly not going to blow up this one on the emergency docket. Unsurprisingly, then, the Supreme Court majority ruled that ICE could continue using the four factors, while clearly affirming, “To be clear, apparent ethnicity alone cannot furnish reasonable suspicion”.19

Somehow, this nuanced approach to approaching suspicious-seeming individuals for brief questioning (the Supreme Court repeatedly emphasized that it must be “brief”) got transmuted in much of the press and social media into, “The Supreme Court just agreed with Trump grabbing Hispanics off the street and throwing them into a gulag just because of their skin color!” This isn’t true, and the fear it creates certainly doesn’t help Hispanic-Americans.

Q: Why doesn’t ICE show its warrants to concerned citizens or answer their questions about an arrest?

Generally speaking, because it violates the suspect’s right to privacy. The Privacy Act of 1974 prevents ICE from disclosing personally identifiable information to third parties, including the information that appears on an administrative warrant. There are exceptions and discretionary loopholes, but the last thing ICE wants is to lose an arrest because one of its agents inadvertently violated the suspect’s privacy rights in response to a question from a random bystander with no involvement in the matter, so it doesn’t.

Moreover, these questions and demands are usually being raised by protestors whose interest in the answer is insincere (it’s not like they’ll stop protesting even once you prove the arrest is 100% legal), so answering them is unhelpful. Almost the only thing it can do is delay and/or compromise ICE’s ability to perform its mission.

Q: What if ICE breaks these rules?

As the Supreme Court confirmed once again in Noem, anyone whose Fourth Amendment rights are violated by ICE (through wrongful arrest, excessive force, etc.) may sue the government for compensation. The Federal Torts Claims Act is available for this purpose.20

I’m not fool enough to think that every ICE agent has done everything right, and I sincerely hope anyone victimized is able to win the compensation they are owed. No law enforcement agency is ever perfect, which is precisely why we have these liability laws in the first place, both to make victims whole and to discipline any agencies tempted to go rogue.

Q: Doesn’t ICE, unlike all other law enforcement, wear masks, like secret police?

Hm.

Police forces at all levels routinely wear masks to obscure their identities (or to provide armor). They seem to do this particularly when entering situations where it might be dangerous to themselves or their families to be identified. For example, when agents go up against powerful drug cartels who can plausibly threaten their children, they seem more likely to be masked.

I think it might be a good idea to pass a statute that requires all agents to be unmasked, or at least to wear identification numbers prominently. I agree with the concern that masked law enforcement is less accountable law enforcement.

On the other hand, ICE agents in 2025 are facing organized resistance that reminds one of the “massive resistance” campaign in the South against the Civil Rights movement. There are popular phone apps dedicated to tracking ICE’s movements. There are constant attempts to “doxx” ICE agents, specifically so the Internet mob can target them and their families.

Who would agree to be an ICE agent if you knew it meant protesters would follow your kids home from school chanting that they should be deported (or worse)? Charlie Kirk was murdered just a few months ago! I’m not happy ICE agents are masked, but I certainly understand why, in this climate, ICE considers it necessary to ensure the laws passed by We, the People are not subject to a heckler’s veto (or an assassin’s veto).

Q: You say people get all these protections, but what about when the White House invoked the Alien Enemies Act?

This was genuinely really bad.

For those who missed it, earlier this year, the White House attempted to activate the Alien Enemies Act, alleging that it permitted removal from the country without any due process due to an ongoing “invasion” by alleged gang members who entered illegally. This is not what the Constitution or the AEA means by “invasion.” (Remember that the early United States had open borders, so the Framers had no concept resembling modern “illegal immigration.”)

Many of those removed under the AEA were shipped to El Salvador, where the local dictator, President Bukele, put them in CECOT, a notorious so-called “torture prison,” at our government’s request, again without any due process. The government then claimed that, since they were no longer in the country or under our jurisdiction, there was nothing any judge could do about it, nyah-nyah. One of those thus sent to CECOT was the now-famous Kilmar Abrego Garcia (although he was not removed under the Alien Enemies Act).

I wrote scathingly about both the Abrego Garcia case and the AEA case in April. Information that has subsequently emerged about conditions at CECOT… well, let’s just say it’s not beating the “torture prison” allegations. This was a shameful chapter in American immigration history and a permanent stain on an already soiled Trump Administration.

However, the Administration has climbed down from the AEA in intervening months. The court system swiftly (for courts) put the kibosh on Alien Enemies Act removals. The Administration has accepted this and returned to normal legal removal processes. Abrego Garcia’s case did continue and he is currently free in the U.S., although the Trump Administration continues to pursue what seem like obviously retaliatory criminal charges against him for the crime of showing them up. (Again, this is utterly contemptible, especially since it comes from the Oval Office rather than from on-the-ground ICE agents.) Under political pressure over this lawless episode, the White House arranged a “prisoner exchange” between El Salvador and Venezuela that got hundreds of detainees out of CECOT. Of people removed from the United States, there appear to be only a handful remaining in the El Salvador prison system (just one in CECOT)—all of them native Salvadorans who remain imprisoned, apparently, on Bukele’s orders, not the United States’. (This obviously sucks for them, but they are citizens of El Salvador, subject to El Salvadoran law.)

It is right and just to bitterly criticize the Administration about this affair. It was clear that, as the saying goes, “the cruelty was the point”—not the law. I hope a bunch of the victims find a way to sue the United States and win cash money. It is also understandable and rational that, after such an egregious breach of the law, many people will default to never trusting the Administration or its faithfulness to the law ever again. Fair enough.

However, this whole affair involved a couple hundred cases resolved (in the main) almost six months ago. When ICE arrests your parish sacristan or your soccer coach, he’s not being sent to a foreign torture prison without due process. Donald Trump would love to be a dictator (one of many reasons I’ve never voted for him), but he isn’t.

Q: What about Sue Tincher, the 55-year-old U.S. citizen held for hours just for asking questions?

Sue Tincher was not arrested for “asking questions.”

Tincher is a devoted opponent of ICE. She received an early-morning phone alert that ICE was coming for some of her neighbors (who, apparently, are not legally present in the United States). She got outside and confronted the officers as they attempted to conduct this lawful detention. Tincher asked officers whether they were ICE officers. (Their vests were clearly labeled.) Because she was too close to the action, ICE ordered her to back away. Tincher refused, apparently firmly and repeatedly. (I have no idea where Matt Little got the “seconds later” line. It’s in none of the media reports. Given that it’s Matt Little, I suspect he just made it up.)

Tincher, refusing lawful and necessary orders from law enforcement in a deliberate attempt to oppose and impede their operations, was duly arrested—an inherently forceful affair, and never a pleasant experience. She spent the whole walk to the car crying “help! help!,” apparently asking her neighbors to attack the ICE agents and free her by force. Fortunately, it was perfectly obvious that she was being arrested (not abducted), and both ICE and Tincher’s neighbors knew better than to take seriously the cries of a privileged White woman performatively getting herself arrested.

It took much of the day for Tincher’s husband to figure out where, precisely, she was being held. ICE, like many law enforcement systems, has some delay between arresting someone, booking them, and getting their location into the electronic system. A few hours later, she was released without charges.

The Department of Homeland Security claimed, in a statement, “Susan Tincher was arrested after she assaulted a federal agent, tried to break through a security perimeter set up for public safety, ignored lawful commands, and became violent.” I have no particular reason to believe that she became violent, but her violation of a cordon and refusal of lawful commands was sufficient to justify her arrest. As we have seen, ICE is empowered to arrest citizens (on probable cause) for impeding ICE operations. Tincher is fortunate she isn’t being prosecuted.

Q: What about “Mubashir,” the anonymous Somali-American citizen tackled by ICE for no reason and detained while insisting he was a citizen?

Mr. Mubashir was not detained “for no reason at all,” as Minneapolis Mayor Jacob Frey claims in this video. It was not “in clear violation of law and the Constitution of the United States,” as he goes on to claim. It does not show that “American citizens may be in the crosshairs,” as he further claims. These claims are vandalism, and Mayor Frey—not the ICE agents in the tapes—should be ashamed of himself.

Mr. Mubashir saw ICE agents when he left a local restaurant. They were questioning someone nearby whom they suspected was in the country illegally. Upon seeing the ICE agents (who were, once again, in clearly marked gear), Mr. Mubashir turned and ran. (Hence the agent shouting, “Why were you running?” in the first video.)

Under every “reasonable suspicion” standard in the history of the world, “man sees cops and books it” establishes reasonable suspicion. The ICE agents duly decided to question Mr. Mubashir, so they gave chase. They caught him. It appears to be under dispute whether and to what extent Mr. Mubashir resisted arrest between his capture and ICE’s car. At this point, Mr. Mubashir began loudly insisting that he was an American citizen. By this point, however, a hostile, threatening crowd had surrounded the two ICE agents on the scene, and they decided (reasonably, in my view) remove themselves and their suspect to a safe location to check his ID. When they arrived at ICE’s local facility, they duly checked his ID, verified his citizenship, and immediately released him. Mr. Mubashir requested a ride back to where he had been (six miles away).

ICE declined. That’s the part of this story where I think it would have been good for ICE to do other than it did. Beyond the fact that it would have been courteous of them to give him a ride, I can see Mr. Mubashir arguing, plausibly it seems to me, that, although his detention for questioning was obviously legal under the reasonable suspicion standard, ICE taking him six miles from his location and refusing to return him constituted an arrest, which requires probable cause, which ICE does not appear to have had.

You may be wondering why Mr. Mubashir ran, since he was a citizen, had done nothing wrong, and had nothing to fear from ICE. That means you have not spent enough time in anti-ICE groups online, where anti-ICE activists routinely circulate messages advising citizens to “disrupt” ICE by pretending to be illegally present, drawing ICE’s attention, and pulling them away from whatever it was they were doing… then playing the victim card as hard as possible when ICE pursues. Mr. Mubashir followed the playbook perfectly. No word on whether the person ICE was originally questioning got away, but it seems like a good bet that he did. I suspect, but obviously cannot prove (and, of course, I could be wrong!), that Mr. Mubashir has just gotten away with deliberate interference with federal agents—and even gotten a platform out of it, thanks to a willfully gullible media eager to join the fantasy that ICE is the Gestapo as long as it hurts Trump.

Q: And the pregnant woman they dragged through the snow?

See, you’re still falling for the frame these people want you to use. Who told you she’s pregnant?

Should you trust those people? Could ICE have reasonably believed or confirmed the claim, in that moment, while actively being attacked by the same angry mob that was claiming a pregnancy? You should put a real big asterisk next to “pregnant” until she has been named and her pregnancy reputably confirmed. You will know your critical reading glasses are on when you don’t need me to tell you that.

Anyway, ICE was attempting to make an arrest. They used the minimal necessary force to bring it about, despite the threatening, violent atmosphere the mob had created. That is what the law allows and requires. If that woman is pregnant, she apparently cared more about making a spectacle than protecting her baby. All she needed to do was go quietly, as anyone (guilty or innocent) should do when arrested by law enforcement.

Of course, the baby himself is completely innocent, and that does pose a dilemma for the agents here. They are responsible for arresting the woman. They also cannot set a precedent where every woman becomes instantly un-arrestable as soon as someone in an onlooking mob shouts “she’s pregnant!” Yet they are also responsible for the safety of the baby! There’s no winning here. Personally, if I thought the claims of her pregnancy were at all credible in the moment, I would have erred on the side of the baby. However, without seeing her more clearly, I don’t know how to assess that. It was an awful situation created by, first, the woman herself and, second, by the mob, but that doesn’t absolve ICE if there is a baby and the baby is harmed.

Q: Can’t you see that this isn’t about the rule of law for this Administration? Aren’t you Catholic? Can’t you read the statement of your own bishops and stop law-washing a campaign of scapegoating that revels in its own cruelty?

This is a really good question, because—unlike most of the pointed questions we’ve looked at today—this one is coming from a true premise: it isn’t about the rule of law for this Administration. The White House is scapegoating people not lawfully present here, and it relishes the opportunity to be needlessly cruel.

The Alien Enemies Act fiasco, discussed above, was hardly the most egregious example. There were trump’s comments on Somalians: “[Minnesota is] a hellhole right now. The Somalians should be out of here. They’ve destroyed our country. And all they do is complain, complain, complain.”21 There was the terrorization of Rümeysa Öztürk, who was sold to us as a Hamas supporter to legally justify her removal, but who turned out to just be a standard anti-Zionist dope.

The one that really, really stuck in my mind, though, was the “deportation ASMR” video. It made the least practical difference, but that somehow made it worse; the White House was just openly celebrating the suffering of people on what’s probably worst day of their lives, for no other reason than hate. Some were hardened criminals, some were just family men with no legal right to be here, but none deserved that cruel relish. The people in this White House are bad.22

My view, then, is not that the White House is doing good stuff with the ICE deployment to the Twin Cities and that we should be delighted about it. My view is simply that it’s Not-That-Bad™:

The rules of this game are simple: President Trump implements a bad policy, makes a bad decision, or says a bad thing, which is worthy of condemnation. The Cathedral reacts by describing that policy, decision, or quote in apocalyptic terms, becomes hysterical, and then questions not the wisdom of the policy but its very legitimacy–its legality, its authority, and its membership in the set of things that may be reasonably discussed by reasonable people. In most cases, this overreaction is (in my opinion as a hardcore Rule-of-Law guy) more dangerous to the American system of government than the actual bad things Trump is doing. So then I need to stand up and say, “Hey, guys, it’s Not That Bad,” explain why it’s Not That Bad, and then remember to still mention somewhere that it’s still bad.

I wrote that in early 2017. It’s nearly 2026. Please, please can we stop playing this game.

We might follow the U.S. bishops’ example. I think the bishops’ statement is very good:

We are disturbed when we see among our people a climate of fear and anxiety around questions of profiling and immigration enforcement. We are saddened by the state of contemporary debate and the vilification of immigrants. We are concerned about the conditions in detention centers and the lack of access to pastoral care. We lament that some immigrants in the United States have arbitrarily lost their legal status. We are troubled by threats against the sanctity of houses of worship and the special nature of hospitals and schools. We are grieved when we meet parents who fear being detained when taking their children to school and when we try to console family members who have already been separated from their loved ones.

The bishops are right to remind us of the inherent dignity of every immigrant, even those who enter illegally, and the necessity of treating them with kindness and discretion, indeed to honor their suffering, even when we are removing them. The other matters of concern they raise are all very reasonable concerns, some urgent. I think they are right, too, that American law does not currently strike the correct balance on immigration, and they are therefore right to continue lobbying Congress for reform.

However, try to imagine a different presidential administration. Imagine someone with the public persona of, say, Mitt Romney or Barack Obama,23 who is genuinely devoted to his Oath of Office and the rule of law. What would this kinder, gentler, law-abiding administration do?

Well, it would enforce our immigration laws, since Congress passed them and the President swears to “take care that the laws be faithfully executed.” It would deploy ICE agents to cities around the country to pursue the most dangerous people illegally present in the country… and, in the process, it would sweep up many, many more, and put them all in removal proceedings. It would send agents to locations where people illegally present are known to congregate, and ask them questions. Those agents would pursue people who ran from them, and arrest people who interfered with them. They would use no more than necessary force, but that would still be plenty of force, especially if chanting mobs pursued them everywhere they went. There would be headlocks, people would be forced to the ground, pepper would be sprayed. This hypothetical administration would not honor or extend unlawful arrangements made by previous administrations, like Deferred Action for Childhood Arrivals (DACA) or President Biden’s abuse of the detention parole power. In the wake of recent spikes in unlawful entries, they would hire a lot more ICE agents and a lot more immigration judges, while building or renting more detention facilities.

In other words, take the most decent President, give him the job of enforcing our immigration laws) to the best of his capabilities, and what you’d end up with… looks darn similar to what’s going on in the Twin Cities today.

This ICE deployment has stirred up full-on non-cooperation from both city governments, false cries of illegality and constitutional breach, mob tactics against legitimate federal law enforcement agents, and constant online comparisons to Nazis. Violence against ICE in some other cities appears to me to be straightforward insurrection. All this comes in response to ICE simply enforcing the law We, the People gave them, by the rulebook We, the People wrote for them.

I think this mostly comes from a place of good intentions, from sympathy with people in a very precarious position. The fact that those people ended up in that position because they broke the law should not erase our sympathy for them, and should actually give us occasion to consider whether we cannot be more generous with our mercy. The good intentions behind this movement make a stark contrast to “deportation ASMR.”

Nevertheless, their lawlessness (often wrapped, falsely, in the name of the law) poses a threat to our Constitution and the American system of government. It poses as a counter to Trump’s lawlessness, but it is a mirror.

Q: Don’t you get it? You can’t stand over here nitpicking the good guys when the whole country is on fire. You have to pick a side.

A:

Q: Bootlicker.

Scheduling Notes: It would be surprising if I wrote much between now and New Year’s. Other responsibilities require my attention at this time of year, and the fact that my short pieces keep turning into long ones has only made me fall further behind. Therefore, Merry Christmas!

It’s too easy to call “Rollicking!: A Winter Carnival Musical” an incoherent mess.

It is, of course. Rollicking! is nonsense, the most bizarre thing I’ve ever seen on stage.

Not the worst thing, mind you. Not even close. Let’s list the wins: the cast is both passionate and talented. I attended on “understudies” night, with three on-stage subs and a music sub, so I don’t know who they usually have playing Vulcanus Rex, but Joshua Row1 was a standout. He brought just the right amount of camp to a role that’s been camp since the fin de siècle. The bleach gnomes2 were charming, particularly Elena Glass’s Gned. I chuckled often throughout the performance. The cast’s energy was unflagging and confident, particularly leads Roland Hawkins II and Erin Nicole Farsté, which is all the more impressive when you consider the material. They made a cast of nine feel like a cast of twenty. The lighting was superlative and the puppetry delightful. The costumes were all the funnier for being historically accurate. The pop-up trivia facts were interesting.

Crucially, this musical’s music was catchy, and sometimes more than catchy. Besides, Minnesotans have a well-known weakness for songs about their homeland, which is why we are all fans of The Hold Steady. Kudos to composer Keith Hovis and music director Isabella Dawis.3 I looked for the cast recording album online afterward, not entirely sure whether I wanted it for myself or as a top white elephant gift.4 Alas, the Rollicking! soundtrack is not available for streaming or purchase. (Yet?)

In fact, I spent much of the play clinging desperately to the songs like flotsam after a shipwreck, because everything that happens surrounding the songs is insane.5 Everyone’s talking around that, even though it is the central fact of the show. There have been at least five reviews of this play. Four cheerily insist that everything was basically fine. One, the St. Paul Pioneer Press, admits to serious problems, but isn’t honest about what they are.

I’m here to tell you what they won’t. Rollicking! shows that the dumbest forces in our culture are not dissolving (as is sometimes reported), but only retreating back to their incubators, ready to ride forth again when the cultural moment is right. It also offers a cautionary tale for any writer, because all of us have, in one form or another, faced the temptations to which Rollicking! succumbs.

Some background: the Winter Carnival is a 140-year-old tradition of Saint Paul, Minnesota. If you’re not from the Twin Cities, you should understand that the Carnival runs deep here. Every schoolchild knows how King Boreas, lord of Winter, establishes his throne in the ice palace of St. Paul every winter and declares a festival of skating, sledding, ice sculpting, parades, and treasure hunting… only to be driven out ten days later by Vulcanus Rex (god of fire) and his Vulcan Krewe, who melt the palace in order to villainously usher in the spring. Even those of us who rarely attend the festivities have seen the Carnival royalty, or been “attacked” by sniggering Vulcans all in red, who brand their “V” symbol on the cheeks of their victims. (There’s an expanded mythos involving King Boreas’s four sons, the princes of the winds, as well as Boreas’s beautiful queen, Aurora, not to mention the flighty scoundrel Klondike Kate… but I have a word limit.6)

Of course, the reality is that the Winter Carnival has always been a civic venture, put together by local businesses and St. Paul’s government to draw in tourists, make some money, and, most importantly, show up Minneapolis. The practical reality of the thing has always been just tawdry enough to add to, rather than detract from, the Carnival’s charm.

Finding a play in this messy, evolving, ancient tradition was always going to be a challenge. I don’t know where I’d begin, personally, to find the human story that can carry an audience through the full sweep of the Carnival’s history. However, it’s easy enough to see where this playwright,7 in this play, went wrong.

Writing fiction is not like writing non-fiction. Non-fiction (usually) starts from a thesis, which naturally unfolds into an explanation of how you got to the thesis, which naturally expands with evidence, and maybe you tell some jokes along the way. By the time you finish expounding, you find that you’ve written a blog post, a magazine article, a really long blog post, or a book. It just happens. The whole outline is there in germ from the moment you grasp the thesis, and just has to be explained to your readers. Non-fiction is easy. (It’s why I write so much of it.) It’s like setting sail with a compass and a clear sky. Even if there are choppy waters, even if you have to change course, even if some of the sailwork is a bit touchy, you always know where you’re going.

Fiction is a different animal. If you start from a thesis in fiction, you’re either going to write bad, preachy fiction, or you’re going to write Larry Niven’s Ringworld, which is worse.8 Every fiction starts with a billion billion possible directions, a vast teeming universe of ideas (some good, the vast majority bad). Russell T. Davies called this zone “The Maybe.” The writer has to somehow whittle the finite but overwhelming possibilities of The Maybe down to one singular choice. This is very hard, may take hours or days, and may end with the writer forced to tear up whatever progress he has heretofore made and start fresh. In the end, though, what makes him a writer is that he forces his way through The Maybe.

The writer has now written… the first line. Unfortunately, this line has opened up a billion billion new (and very different) possibilities, which must now be whittled, again, down to one. If he repeats the feat a thousand times, he has a script.9 It gets a little bit easier as he progresses, as the story takes shape. Eventually, each line is only one out of a million million possibilities, rather than a billion billion—but most of them are still crap.10

Writing fiction, then, is not like setting sail. It is more like falling naked into a fast-moving river in a wide ravine, half-drowning, and trying to find your way to one of the few parcels of accessible shoreline, dimly seen in the distance. The writer has some control, but often finds himself at the mercy of the story’s current. You can try to plan a few moves ahead, predict what choices will lead to better options later, but you can’t force it, or the current will pull you under and dash you against the cliff face. It is therefore imperative that the writer enter the river with, yes, strong muscles, but, more importantly, an open mind. That doesn’t guarantee the river will carry you to a good story, but, in fiction, all you can ask for is a fighting chance.11

That’s why it isn’t fair to call Rollicking! a mere mess. That gives the impression that it was just bad luck, or, at worst, unhoned craftsmanship. Stories fall victim to that all the time.

Rollicking!, however, was deliberate. Rollicking! chose to fight the logic of its own story at every turn, because its author did not have an open mind. She had a checklist.

Read more

The Story So Far…

In Part I: “A Senate, If You Can Keep It,” I identified the Senate’s purpose as a “control rod” regulating the untempered power of democracy in the House, gifted with distinct virtues thanks the very different character of its electorate (state legislators). I then traced the Senate’s collapse into the pathetic shell of a deliberative body it is today.1

Today, I’m going to try and fix that collapse.2 To that end, I offer not one amendment… but two!

Amendment XXXIII

Section 1. The Senate of the United States shall be composed of one Senator from each State.

Section 2. In the first twelve months after this article becomes part of this Constitution, each state shall, under such rules as Congress shall prescribe, be simultaneously deprived of one of its senate seats, as randomly as possible, while preserving the equality of the three classes of the Senate. To fill the state’s remaining seat for the remainder of the current term, the state shall hold a senate election as prescribed by this Constitution, except that the only eligible nominees shall be the U.S. Senators from that state as of this article’s ratification.

Over the centuries of glorious expansion in our Republic, the deliberative, tight-knit Senate that the Founders envisioned has grown from 26 seats to 100. That’s just too large a body for tight-knit deliberation.

It is vastly larger than any state senate. (The largest state senate, Minnesota’s, has 67 members. The smallest, Alaska’s, has 20. The average state senate has 39 seats.3 The 100 members of our modern federal Senate, by contrast, almost outnumber the 105 members of the Founding-era House, which they understood to be a huge, rowdy body! To aid the Senate in its mission, we should shrink it.4

This has to be done very carefully, because the Constitution guarantees every state equal suffrage in the Senate. This cannot be altered, even by a constitutional amendment, not even for one day, without unanimous consent from the states. Amendments are hard enough to pass without seeking unanimous consent, so we will maintain equal suffrage while reducing that suffrage from two per state to one per state. As with other complex amendments, some of the implementation details are left to Congress.5

Amendment XXXIV

Section 1. The members of the United States Senate shall be chosen, in each state, by the least numerous branch of the state legislature thereof, being composed of at least ten members, and whose concurrence is necessary for any act of the state legislature to become law.

Section 2. Within thirty calendar days of an imminent or actual vacancy in the state’s Senate seat, the electoral house shall convene to elect a replacement. Upon a motion and a second nominating an eligible candidate, the body shall immediately vote by secret ballot whether to elect that candidate or not. If two-thirds of members present concur, the nominee is elected. If not, the nominee may not be re-nominated for this vacancy under this section, and the mover and seconder may not move or second another motion for this vacancy under this section. If there are no further nominations, or if no U.S. Senator is elected in this way within two calendar days, the body shall proceed to a contingent election under Section Three.

Section 3. In a contingent Senate election, the electoral house shall nominate U.S. Senate candidates by secret ballot, each member’s ballot bearing the name of one eligible person, or the words, “I decline to nominate.” These ballots shall be tabulated in the presence of the entire house. Each eligible person nominated by at least one-tenth of those present shall be a candidate.

Then, the body shall immediately vote by secret, ranked ballot. Any ballot that does not rank all candidates shall be invalid. Each ballot may separately veto up to one candidate. A ballot with more than one veto shall be valid, but all its vetoes shall be deemed void.

Any candidate receiving a total number of vetoes greater than or equal to the number of valid ballots cast divided by seven-tenths the number of candidates shall be deemed eliminated.

Of remaining candidates, if one candidate defeats all others head-to-head, that candidate shall be elected.

Otherwise, the smallest set of candidates shall be identified, such that each candidate in the set defeats every candidate outside the set head-to-head. The candidate with the fewest highest-ranked votes who is not in that set shall be eliminated. If there is now a single candidate who defeats all others head-to-head, that candidate shall be elected. Otherwise, candidates shall be eliminated in this way until a candidate is elected, eliminating candidates in the set only if all other candidates have already been eliminated. Exact ties shall be broken by lot.

Section 4. Any pledge, vow, oath, or any other commitment by a Senate elector regarding his votes to nominate or elect a U.S. Senator shall be null, void, and utterly without force from the moment it is made (excepting her oath to this Constitution and her state’s Constitution), and no Senate elector may be compelled to make any such commitment. Any instruction, advice, or requirement laid upon an elector regarding same, outside the provisions of this Constitution, shall be likewise null and void.

Section 5. The seventeenth article of amendment to the Constitution of the United States is hereby repealed. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.6

The Senate was supposed to be composed of wise and skilled lawmakers, each with “due acquaintance with the objects and principles of legislation.”7 They were to be elected from state legislatures, to reflect the interests of those states (not the People directly) in the corridors of federal power. This different constituency would give them different virtues (and different vices) than the House of Representatives, one more layer in the Founders’ subtle system of check and balance. Senators were expected to be results of a state consensus, because the Founders did not anticipate political parties. Indeed, they mortally feared political parties, and pinned many of their hopes on the notion that the nation would instead be governed by many loose and fluid coalitions led by wise men who would never place the interests of their temporary “faction” above the permanent interests of their nation, their state, or their branch.

The Founders plans were spoilt, because organized political parties formed anyway (as they must).

First, the parties put a stop to that whole “state consensus” business. Senators were soon elected, in effect, by their party caucuses, with the usual results:

Gradually, as partisanship took root at every level of the nation, the wider political party organizations supplanted the party legislative caucuses.

The People, realizing that the state’s positions in the Senate would swing wildly from election to election based on which party controlled the majority in the state legislature, began to vote for state legislative candidates, not for their positions on the issues nor their merits as legislators nor for their good character, but for the letter next to their name. Their analysis was not wrong, but their tactics changed the character of state legislative elections into proxy votes for the federal Senate. Senate deadlocks began to occur more frequently,8 as increasingly national parties became less willing to compromise.

The parties realized they could win more elections with honey than vinegar, so they stopped paying so much attention to qualifications like “acquaintance with the objects and principles of legislation,” and started looking for charismatic public speakers who’d play well for the party on the stump… or, in other words, demagogues.

State legislators, frustrated that they often no longer mattered in their own elections, tried desperately to separate themselves. They persuaded their parties to institute “primary elections,” where the party’s supporters chose the party’s Senate candidate directly. A rapidly growing collection of states even passed laws holding statewide “advisory elections” and pledging their legislatures to elect the winner to the U.S. Senate. Maybe then the People would start caring about state issues in state elections!9

The Seventeenth Amendment made popular election for U.S. Senate the law throughout the country. This destroyed the Senate as an institution, and we live in the still-smoldering wreckage (which occasionally implodes down into hitherto-unknown subbasements), but the Seventeenth was only the final surrender to a system that was, by 1912, already in free-falling collapse.

This amendment proposal restores the Founders’ design, while accounting for the existence of organized political parties (and populist pressure from outside). Let’s examine its provisions one by one.

Section 1: Back to the States

First and foremost, this proposal returns U.S. Senate elections from the ballot box to the state legislature.

However, a number of problems arose from the Constitution’s original charge that senators must be elected by a double majority: both houses of the state legislature, simultaneously. It was hard to get two houses to agree on a candidate if the two houses were controlled by opposite parties. As a matter of fact, it is hard to get two legislative houses to agree on anything, which led many states to elect U.S. Senators in joint sessions of both houses, blurring the Constitution’s original intent. However, joint conventions of state house and senate are still harder to manage than single-house proceedings. There’s a lot more egos to stroke and much more complicated lines of negotiation.

Even the floor rules are messier! Rules for joint sessions aren’t as clearly defined, nobody knows them as well as the rules of their home house, and there’s far fewer precedents fleshing them out. There are lots of people out there eager to exploit ambiguities in the floor rules,10 so “less robust rules” is a serious drawback.

Thus, this proposal simplifies: it assigns election of U.S. Senators, not to both houses of the state legislature, but to the state senate alone. (It seemed appropriate.)

Of course, the proposal can’t just say, “state senate,” because not every state has a senate. Nebraska has a unicameral legislature. All states with a bicameral legislature currently call their upper house “the senate,” but they don’t have to. New Jersey calls its lower house the “General Assembly,” not the more common “House of Representatives,” so, in the future, a state could rename their state senate something else, like “Sheev Palpatine”:

So the amendment includes some general language about the “least numerous branch of the state legislature” that captures all state senates and the Unicameral.11

However, we can’t just return senator election to the legislatures, or even to the state senates, and call it a day. After all, that’s the system that was in place until 1912… and that system was already broken! We still must address the problems of proxy election and popular, partisan control over the nominees.

Section 2: Require a Consensus Senator

[Text]12

The next section of the proposal gives the state senate two days to freely elect someone (with just a little extra language to prevent state senates from stalling). However, to win at this stage, the candidate must win a two-thirds supermajority.

This supermajority requirement has two benefits.

First, in any state that is even slightly purple,13 it will be impossible to achieve a two-thirds supermajority without at least some votes from the minority party. This gives the minority party leverage to force a candidate who is broadly acceptable to all parties. That pushes the elected senator away from the majority party’s ideological center and toward the state’s ideological center.14 So this requirement directly addresses one of the shortcomings of the current Senate.

Second, the supermajority requirement helps break down party discipline, enabling the greater independent judgment we’re seeking for our state legislators. It gives leverage to the minority, and even to factions of the majority—leverage which can be used to pry majority members apart from their party bosses. “Of course I wanted to vote for our party’s wonderful nominee,” they can say, lying, “but that darned minority party wouldn’t accept him, so we had to find a compromise.” If that compromise happens to be someone everyone in the state senate recognized as a better candidate all along, so much the better.

The secret ballot further erodes party discipline by allowing legislators to vote their conscience without being caught and punished for it. We want state senators, in this case, to exercise independent judgment based on personal experience and relationships, rather than towing the line or fearing backlash from constituents who have been enraged by something they saw about the race on social media. The secret ballot gives them that freedom of judgment.

Once party discipline breaks down, so does the mechanism that changed state legislative elections into proxy elections for the federal Senate. Once there’s no longer a clear relationship between a state senator’s party and the final outcome of the federal Senate race, voters have fewer incentives to vote a party line just to win a senate seat.

Finally, this requirement is more likely to lead to stability in state policy (and, ultimately, federal policy) over time. If, in a given state, Republicans enjoy a thin majority over the Democrats, the only road to a two-thirds majority probably goes through a moderate Republican. When the Democrats take back that narrow majority, their only road to a two-thirds majority likely goes through a moderate Democrat… or perhaps even the same moderate Republican, who will, by this point, have certain seniority privileges, certain allies, and certain experience navigating the federal Senate, that could benefit the entire state. (Of course, the moderate Republican or Democrat would have to be pretty darned moderate to carry off this balancing act over multiple terms.)

Now, I’m a partisan at heart. I hate moderates. However, my flavor of partisan maximalism belongs in the House of Representatives. A large part of the Senate’s purpose is to counteract sentiments like mine. Let no one touch my bloody-minded, red-meat partisan attack dogs in the House, but our design for the Senate must set this aside, or partisan excesses will poison the whole system. Indeed, they already (very obviously) have!

Section 3: Contingent Election

Alas, sometimes, an electoral body cannot reach a consensus for a long time. Indeed, under the Founders’ system, it could take divided state governments months, or even years, to elect a senator, and that was with only a simple majority required (albeit in both houses). Because this amendment imposes a two-thirds requirement, it is much more likely to cause deadlock.

Rather than allow the minority to stall out the majority indefinitely,15 the proposal forces everyone to a contingent election after two days. This process is unpleasant for everyone. Rather than an agreed-upon candidate, there’s a lot of finicky details to ensure that, essentially, nobody who reaches this stage gets their first choice, or perhaps even their second choice. This, in itself, is a strong incentive for the two sides to get together and make a deal before it comes to this point. I expect that it will rarely come to this point, so much of what you are about to read would be irrelevant in most elections. Nevertheless, sometimes, it will come to this point, and we had better be prepared.

The Nominations Phase

[Text]16

In this contingent election, nominations are open to any qualified resident of the state, but each state senator can nominate only one candidate,17 and each candidate needs the support of one-tenth of the body to reach the next stage. In effect, this places a hard cap on the total number of nominations: no matter how large the body, you will never have more than 10 nominees.18

Naturally, the political parties, as well as caucuses within each political party, will coordinate their nominations to ensure certain candidates are nominated. If either party held some sort of public primary election, they will almost certainly make sure to nominate whoever won that election—and these primary winners will, as usual, reflect ideological extremes, not the state’s median. Factions within each party may also choose to nominate. However, both parties have strong incentives to nominate as many candidates as they possibly can. This is because of the veto, which we’ll get to in a moment.

Once the nominees are announced,19 the body votes by secret, ranked ballot.20 However, any voting system that allows open nominations followed by ranked-choice vote can be effectively manipulated by a bare majority to force their preferred outcome. In other words, if we immediately counted votes at this point, the majority could manipulate either the ballots or (more cleverly) the list of nominees to effectively guarantee victory to the winner of their party primary.21

The Vetoes Phase

[Text]22

That is why this system incorporates vetoes. Nominations are open, but the minority party (and other small coalitions) can act together to narrow the list back down, eliminating primary winners, unacceptable candidates, or candidates nominated solely to manipulate the ballot-counting. Of course, the majority party can do this, too!23 As each side eliminates unacceptable candidates, they leave behind acceptable ones, forming the basis to force the compromise they failed to make in Section Two. Overall, we’ll usually expect around two-thirds of the nominees to be eliminated at this stage. Here’s how that works:

Alongside their ranked choices, each state senator’s ballot includes up to one veto. These are tallied immediately. If any candidate receives a certain number of vetoes, that candidate is eliminated from all remaining rounds of counting.

The veto threshold varies based on the size of the house and the number of nominees: “the number of valid ballots cast divided by seven-tenths the number of candidates”. For example, in a 39-person state senate with 9 nominees, the veto threshold is 7.24 If that same senate puts up only 3 nominees, however, the veto threshold nearly triples, to 19.

This veto threshold ensures that any sizable25 minority party will have the power to veto at least one majority-party nominee, but that the majority party will not be able to veto all the minority-party nominees. This leaves the majority in the driver’s seat, but gives the minority real leverage. The minority can offer a serious compromise candidate as a carrot… and veto any clear majority favorite as the stick.26

The minority party will, in general, nominate as many candidates as it can, because more nominations lead to a lower veto threshold, which, in turn, gives the minority more leverage against the majority. The majority party has a good incentive to do the same thing, since, if it nominates only one or two people (in order to keep the veto threshold high), the minority stands a real chance of eliminating all the majority-party candidates. (Again, the veto mechanism allows well-coordinated voters to eliminate around two-thirds of the nominees.27) Any party foolish enough to hold a primary of some sort and choose an official “standard-bearer” will be disappointed when that standard-bearer inevitably gets vetoed.

If parties are nominating broadly and voting more or less sincerely, we will at this point find that extreme candidates in all parties have been knocked out by the veto, leaving only plausible compromise candidates in the field. If parties are nominating strategically and vetoing tactically (they will), we expect… more or less the same thing. Neither party can put forward an official “standard-bearer” without the other party’s consent. A too-greedy majority party could arrange things to ensure that its last candidate standing is an extremist, but that merely opens the majority to a tough vote between that extremist and the sensible moderate nominated by the minority.28

The Condorcet Phase

[Text]29

Once the vetoes are settled and (roughly) two-thirds of the candidates are eliminated, we proceed at last to counting the votes.30 This final phase is, in many ways, the least important. The most crucial choices are made in the nomination and veto phases.

To count the votes, we simply check whether there’s a Condorcet winner: if there is one candidate who would beat every other candidate in a head-to-head matchup, she wins. This method tends to elect more moderate candidates acceptable to all, especially if voters are sincere. For example, if Robbie Right-Wing, Millie Moderate, and Larry Lefty run in a chamber with 45% right-wingers, 20% moderates, and 35% left-wingers, Millie should win: she beats Larry 65%-35% and she beats Robbie 55%-45%. A Condorcet count ensures that she does.

Of course, party discipline and tactical voting can subvert this moderation tendency pretty badly, so we aren’t counting on it. On the other hand, we have given legislators the secret ballot and we’ve prohibited bullet ballots. This allows partisans to evade party discipline more or less undetectably. That strengthens the consensus-seeking heart of Condorcet voting.

In the very unlikely event that there is more than one Condorcet winner (ties happen!), we break it using Benham’s method. Benham’s method eliminates the least-popular candidates,31 one by one, and recounts after each elimination until there is a winner. In a previous article, I wrote much more about Condorcet winners and Benham’s method, so if you want more, check there.

Summing Up the Contingent Election

Overall, this method of election works very well when all voters are acting sincerely (with parties exercising little or no control), but it still works pretty well when both parties have strong control.32 Where the system tends to fall short is when one party (whether the minority or the majority) has more control over its caucus than the other. (I’ve put some example elections in this footnote for your perusal, all of which assume highly coordinated parties.33) The system therefore encourages participants to build cross-party trust and mutually disarm.

Indeed, if parties are powerful, Section Three elections force them both to work very hard, under heavy restrictions, only to leave them, in the end, with probably the same U.S Senator they would have had if they’d just made a deal during Section Two. This gives all sides an incentive to just make that deal during Section Two and save themselves the trouble! That’s why I anticipate that, while this contingent election system is robust (and needs to be), it will rarely actually be invoked, because parties will re-learn how to make deals. In the long run, that, too, is likely to bring forth a better breed of U.S. Senator.

Section 4: No Binding

[Text]34

This section of the proposal does relatively little real work. The power of the parties over U.S. Senate election is mostly broken by the secret ballot, the prohibition of bullet ballots, and the two-thirds requirement in Section Two.

However, parties will certainly keep trying to exercise formal control over their state senators anyway, principally by extracting pledges and oaths from them. The few honest men still in politics may consider pledges and oaths morally binding, even though they are not legally binding. This could give parties undue leverage over those honest politicians… or force those last few honest men out of politics! Neither is desirable, so Section Four simply removes the power of political parties (or states) to extract commitments that are binding legally or morally.

While other provisions erode the parties’ informal powers over the U.S. Senate election, this provision demolishes their less important formal powers.

Section 5: Boilerplate

[Text]35

When you repeal an amendment, it is important to do so explicitly. We do not, after all, want there to be any argument that Governors or voters retain the power to fill midterm vacancies by appointment. It is equally important to clarify the limits of the new amendment; here, I borrow language from the Seventeenth Amendment that clarifies that nobody elected by the people will be thrown out of office or subjected to legislative election before the end of their regular term.36

Alternatives Worth Considering

At any actual Article V convention of the states, many proposals will be debated. I think my shrink-the-Senate proposal is simple and speaks for itself. However, when it comes to replacing the Seventeenth Amendment, there are a lot of ideas on the market. Obviously, I think mine’s the best. However, other delegates might disagree, and it may become clear that my proposal is non-viable. At that point, my supporters must consider alternatives. Some of them are worth considering!

Others are not. The main thing you need to watch out for is: will this proposal actually return power over the election of senators to the state legislature? Or does the proposal simply claim to return that power to legislatures, while actually turning state legislative elections into proxy races for U.S. Senate, or giving the governor effective control over nominations? Or, alternatively, does the proposal ratify the destruction of the Senate’s deliberative character (perhaps by massively expanding it), or otherwise encourage Senators to behave badly?

Here are some possibilities that, in my opinion, stand a real chance at succeeding, and are worth supporting if my proposal is non-viable:

Make Mine a Conclave

Conclaves are great. You can shatter all kinds of electoral coalitions if you lock everybody involved in a building by themselves, turn off their phones, take away the cameras, and refuse to let them come out until they reach an honest two-thirds consensus. I’ve told you the conclave (not the Holy Spirit) is the great strength of the Catholic Church’s papal electoral system and I’ve told you (even earlier) that we should elect the president by a conclave of the governors, so why not elect the Senate the same way, given my priorities of a consensus candidate, a wise statesman, chosen without undue influence from political parties?

I avoided this because I think the difficulty of securing so many senate elections is high, and any security failures create a risk of deadlock, and deadlocks were one of the main things that killed the original Senate election system in the first place, so this seemed politically and logistically infeasible. However, in principle, I don’t have a problem with it, and would support it if that’s where the convention was heading. I particularly liked this suggestion from Andres Riofrio:

Hmm… if [the contingent election] is meant to be a painful threat and backstop to avoid deadlocks, couldn’t we keep the regular election at first, and use the threat of a secluded conclave (where they’re not allowed to leave until they choose) as the backstop?

This way (it seems) most of the costs of the conclave process are avoided because state senators would much rather come to a compromise while they’re still free and home, especially since they’ll be forced to make the exact same kind of compromise eventually, but behind gates and potentially far from home.

This is a good idea. I like it. By using the conclave only as a backstop (just like the contingent election in my proposal), it greatly reduces my worries about it.

Stick ‘Em In A Hat

In a previous piece, I said, “I have a deep and abiding fondness for election by sortition. Injecting an element of randomness into elections probably does not reduce candidate quality, but probably does reduce candidate ambition.” This led Mathematicae to suggest that we just replace Section Three with random selection. If, after two days, the state senate can’t come to a two-thirds agreement, then, instead of holding a complicated contingent election like I proposed, we could just put every person who was nominated and received some reasonable number of votes (say, 30%) into a hat and choose the winner by lot.

I don’t love this, because it is very “swingy.” It sets a minority party up, in particular, to reject all compromise in order to roll the dice on maybe getting one of its favored candidates through. How does the majority respond? Naturally, by putting up someone extreme and unpalatable of their own, as a sort of threat, in order to force the minority to bargain honestly. (Because, in this system, each legislator can only support one nominee, the majority will always have more nominees and more names in the hat.) I am okay with this system because I think this threat will probably, usually, work!

But if it doesn’t, you’re liable to end up with U.S. senators even less representative of their states’ ideology than we have today. Across the country, on average, this will cancel out, as a lucky left-wing extremist who drew the short straw will be countered by a lucky right-wing extremist who drew the short straw. Yet you could see a right-leaning purple state like Ohio suddenly represented by a Bernie Sanders type, or Minnesota suddenly represented by a Ted Cruz type. That’s a risk I’d prefer to avoid, especially because I think the People would rebel if it happened often. Nevertheless, I think this system would, on the whole, almost certainly still be a great improvement on the current system and on the original Seventeenth Amendment, so I would support it if I couldn’t get my proposal across the finish line.

Blunt-Force Trauma to the Nominees List

In my proposal, if the consensus election fails, the fallback contingent election selects the winner by ranked-choice voting. However, I have written that, for elections with few voters, “any voting system that allows open nominations followed by ranked-choice vote can be effectively manipulated by a bare majority to force their preferred outcome.” In my proposal, I addressed this problem by following open nominations with a veto round, allowing the minority (and majority) to tactically narrow the list.

There are, however, other ways to narrow the list. You could use an algorithm, like DW-NOMINATE, to automatically throw out candidates who do not hew pretty close to the state’s median voter. I proposed exactly that in a previous attempt at this proposal. There are lots of problems with this approach, but, if the delegates liked DW-NOMINATE, or found some better answer to the problem, it’d be worth considering.

Tuning the Veto

There are several methods that are virtually equivalent to mine, but with a different veto threshold. Various techniques to find the “least hated” member of the body (like this one, proposed by Gilbert) boil down to this method, except for allowing (indeed, requiring) way more vetoes. This is fine and worth considering as an alternative, even though I don’t love some of the expected consequences.

On the other hand, I’m wary of methods that try to allow fewer vetoes than this method. If the minority doesn’t have adequate veto power, the majority will begin to find ways to reliably wrestle its preferred candidate into office, and the Senate will break down in many of the same ways as it did the last time we tried this.

Tuning the Details

Maybe the delegates like the whole proposal, except for the part about using Benham’s Method as a tiebreak. Maybe they’d rather use Hare elimination, or just jump straight to drawing lots like we usually do when there’s a tie. Fine by me! (It would certainly allow us to delete a lot of words in Section Three!) Maybe delegates would rather see the U.S. Senate elected by state houses, instead of by state senates—or even go all the way back to election by joint session, for some reason. Okay!

I wrote the best amendment I could, but you can’t get married to implementation details in a constitutional convention, as long as your broad objectives are being met. There are lots of details that could be changed here without compromising the objectives. (There are also lots of details that cannot. The trick is knowing the difference!)

A Senate for a Polarized Century

Today, we have a broken Senate. It was designed to protect states from the encroachment of the federal government, and to provide a counterpoint / containment system for the populist demagoguery that was sure to dominate the House. It has instead become amplifiers for both. Many people have come to believe the Senate is redundant and ought to be abolished. If the choice is between the Senate as it exists today and no Senate at all… I hate to admit that those people are right.

However, that isn’t the choice we face. Leaving aside the fact that small states can (and will) prevent the Senate’s abolition unto eternity, we could also try to fix the Senate.

These amendments are an attempt to do so. The first proposal shrinks the Senate so that it can be a more focused, deliberative, even intimate body. The second proposal changes the Senate electorate back to a small group of well-informed legislators (rather than a mass mob swayed by feelings and campaign ads), insulates those legislators against partisan pressures, presses them toward consensus candidates who reflect the state’s median voter, and provides insurance against deadlocks.

You wanted to get money out of politics? “Campaign finance reform” and overturning Citizens United doesn’t work (and would be a bad idea even if it did). The way you get money out of politics is by making money less necessary for politics, and the way you do that is smaller, more tight-knit electorates. In the Senate, that means transferring power to a smaller elected body. In the House, it means much smaller districts. There was a lot less money in Senate politics before the Seventeenth Amendment, and we can do it again.

These amendments’ ultimate aim is to not simply to change the Senate’s structure, but to renew the Senate’s culture. Unfortunately, since culture is the result of human choices, I cannot prove this will succeed the way you prove a theorem. All we can do is create structures that create the right incentives, and hope that those incentives lead to more humans making more good choices a lot more of the time.

As the saying goes, though, “Show me the incentive and I’ll show you the outcome.” I think this proposal creates the right incentives, in a manageable package that voters can understand. There are other options, too.

We cannot abolish the Senate. We cannot neuter the Senate. The small states will never allow it. However, we can fix the Senate. We should choose to try.

Next Voyages: When Some Constitutional Amendments (eventually) returns, I expect to take a pause to discuss why I am doing this, since constitutional amendments seem so impossible right now. After that, my inclination is to move on next to Article V, aka the reason constitutional amendments seem so impossible right now. However, it will likely be a minute. I feel a Catholic spasm coming on.

I always intended to write those cute annual “state of the blog” posts. They’re kinda inside-baseball to many readers, but I think sharing information is really valuable to other writers, especially other writers on Substack. It’s like an office team that shares salary information before negotiating raises with management: it’s a little uncomfortable for everyone, but it also strengthens everyone during the actual negotiation.

Somehow, though, I never got around to actually writing a “state of the blog”…until now! This Thanksgiving weekend is De Civ’s fourth anniversary on Substack, and, since we passed a subscription milestone yesterday, it’s as good a time as any to pop open the hood and show you, the readers, what I see when I wake up to De Civitate every morning.

The Wordpress Era

De Civitate launched on 30 January 2012 on Wordpress. I was fresh out of college, not yet engaged to my now-wife. My goal, as I now remember it, was twofold:

1. I had a lot of commentary bursting out of me, and I wanted to have an outlet for it other than Facebook. Even in 2012, we all knew Facebook was bad. I wrote things to be read, and I wanted it read by more than a handful of friends. I also wanted to stop poisoning my apolitical friends’ feeds with my political nonsense.

2. I wanted my new blog to earn $1,200 over four years. I wanted this for personal validation, because I believed a writer is not a writer if he isn’t being paid for his words. I had just purchased an $1,200 gaming PC, and I assumed I would want to replace it in a few years, and I thought this was a realistic revenue target using Google Ad Services and some tasteful banner placements. Of course, I was young and rich. I earned $54,000/year1 and had no dependents, so I was planning to buy the new computer in four years regardless of how my blog performed.

My first post was a statement of principles. It took itself much too seriously,2 but I don’t hate rereading it, either. I published 311 articles over the next decade, many of them quite short, for a total of 485,169 words—approximately the same length as David Foster Wallace’s Infinite Jest. The vast majority of my audience was still Facebook friends. A few found their way to De Civ organically, but there was no way to know how many. (Perhaps two dozen?) Of course, a big thanks to the O.G. De Civvers who’ve followed me since Wordpress!

Wordpress was a hacker’s paradise, but, over time, it became an obstacle to writing. It had no built-in comments system, and adding a comment system (without giving free rein to spambots) turned out to be a part-time job I didn’t have time to do. Offloading to Disqus worked sort of okay for a little while, then a software update broke it completely, and we spent the last year on Wordpress with no functioning comment system. This was miserable. Even when I can’t find the time to respond to every comment, I read all of them, and treasure the fact that someone read something I wrote and took the time to reply to it. Now I had no comments at all.

Meanwhile, my customizations to the Wordpress template started to show their age, Wordpress couldn’t really handle subscriptions or an email list, and I didn’t have time to deal with any of it. Google ad revenue remained stubbornly at $0. Technically, I earned $50.56 over a decade, largely on the strength of my two viral articles, but Google raised its payout threshold every time I got close to it, so I never saw a dime. When Wordpress’s default editor got dramatically worse, forcing me to add a new “block” to a page every time I wanted to add a paragraph (and forget about captioned images), it pushed me over the edge. I will always love Wordpress (it’s free and open source!), but I couldn’t live with it anymore.

Then I found out that Substack had a footnote tool,3 and my fate was sealed.

The Substack Era

On December 1, 2021, I announced that De Civitate had moved to Substack. I set my sights downward this time. Instead of $1,200 in four years, I aimed for $1,200 in ten years... but I still didn’t really expect to get there. I was just going to use my goal as a measuring stick in Playing PredictIt. Ten years blogging had taught me to expect neither audience nor money.

So what a pleasant surprise this has actually been:

We hit 400 total subscribers on Thanksgiving morning, a milestone by any measure!

We’ve had some terrific comment threads here, beyond the dreams of my Wordpress. “Take-ing on the New Administration,” from this spring, wins the prize, with 58 comments, but I’ve really enjoyed getting to know the regulars across many posts. This alone made the move worthwhile.

Fueled by the knowledge that several people are actually reading what I’m writing (and some of them are even paying me for it!), I’ve been writing a whole lot more, too!

I’ve posted 168 new articles to De Civ in the last four years, and I have not spared the keyboard: they added up to 982,219 words. That is roughly the same length as all seven Harry Potter books combined. (Yes, even Order of the Phoenix.) It’s also twice as many words as I wrote on Wordpress… and I wrote ‘em in less than half the time!

It was easy to find the motivation to type so much, because I reached my original financial goal on the second day of this Substack:

This is an incredible chart.4 It ticked over $2k this weekend,5 which is what got me to take a close look at it for the first time in months.6

Every time I see that “Gross annualized revenue” number go up, I feel an immediate, urgent need to drop whatever I’m doing and write something for the good people of the paylist. My writing output has quadrupled since the move to Substack, even as my actual free time has shrunk an awful lot. I think that’s entirely thanks to the good people of the paylist, and the obligation I feel toward each of them. Give them some love when you get the chance.

Of course, it’s been a long time since I was young and rich. None of this money has gone to my gaming rig.7 In fact, my rig is the same machine I bought way back in 2011 (although it has ship-of-Theseused its way into continuing value). Instead of buying coolers and mobos, De Civ’s Substack revenues mostly go to groceries and parochial school tuition, though it also helps a lot with my family’s annual trip to our favorite Minnesota cabin resort. We are all very grateful for that.

The other reason this chart is incredible is because it shows the loyalty and generosity of the De Civitate readership. Most Substacks that “go paid” expect to “convert” 2-4% of their subscribers to the paylist. This is a well-known figure in wide circulation, and I have frequently confirmed it by anecdote. Yet fully 10% of De Civitate’s readers pay for it?! I’ve never heard of this, except in tiny blogs read only by the writer’s family. You are a nifty bunch of people. You are, in fact, so nifty that your niftiness is statistically anomalous.

What Does the Future Hold?

Will I still be here in ten years? I hope so. The rise of LLMs is already sandblasting this field. People at the New York Times and whatnot are still honestly asking one another, “In a few years, are people going to be willing to read articles written by an LLM?” but, gurl, there’s a healthy number of Substacks much larger than mine that are already written largely or entirely by AI. I’m not going to do that. If the only way to keep my blog from falling into irrelevance and extinction is handing the keys to ChatGPT, guess I’ll die.

I’m not against LLMs in general. I use them often. LLMs translate documents for me, both for publication at De Civ and casually. They scan documentation for me. They solve trivial to moderate code problems for me… which, yes, does make me nervous about my day job as a programmer! LLMs perform complicated web searches for me (better than Google!), and an LLM recommended the last roast beef cut I purchased (to accolades from my tongue). Their environmental impact is wildly exaggerated. For De Civ, I sometimes use LLMs for proofreading8 and for image generation (always with credit). Also, because LLMs are, fundamentally, conventional-wisdom generators, sometimes I run ideas by an LLM to find out what the conventional wisdom would say about them. (LLM necessary because Ezra Klein no longer accepts my calls.)

But the actual thinking and writing? If I outsource that to an LLM, what am I doing here? What would be the point of me? If I ever go there, cut out the middleman! Unsub from De Civ, put that money toward a GPT+ subscription, feed it my entire corpus, and instruct it to write a post in my voice once every twelve hours for the rest of your life. Fortunately, my voice is so far distinctive enough (and obscure enough) that the robots’ attempts at replicating it are boring and shopworn.9 If I ever do use an LLM to generate text in a post, I’ll mark it clearly… and I’d better have a good reason for it!

So, will De Civ survive what is coming? Maybe, maybe not. But, as Captain Picard once said:

Assuming no AI singularity/extinction event, though, I’ll probably still be here. I’m pessimistic about the future of the United States, but, even if things go very fast and the country falls apart by 2035, the Internet will almost certainly survive. So, therefore, will this blog. It will probably always be a part-time endeavor, even if it gets large enough to replace my day job,10 because I have noticed lately that part-time opinion writers who transition to full-timers tend to undergo audience capture and completely lose their minds. Many such cases.

I admit that I’ve been a little bit bothered by Substack’s direction over the past few years. They’ve really been re-gearing toward being another social media company, rather than supporting my newsletter. They’ve also cut a lot of human support. (When I started out, you could just file a bug report and get a response in a few days! Impossible now.) However, the people jumping ship for Beehiiv and whatnot are invariably the most annoying people alive, and the new services don’t seem to be actually better than Substack at anything, so I don’t see a switch anywhere on the horizon. My biggest long-term worry is that Substack could collapse or become censorious, like so many other web hosting businesses. However, if that day ever comes, I’ve got copies of all my posts (and all your email addresses) and can easily migrate back to Wordpress. I also wonder whether the current Substack pricing model is sustainable. It may be that, in a few years, we’ll all be trying to find other Substack writers to “bundle up” with (in order to deliver lower subscription costs to readers), and I’m not sure I’m up to that brave new world, should it ever come.

All in all, though, I am very happy with how things are going here, far happier than I expected to be four years ago, and so I intend to continue more or less as I have been: some politics, some Catholicism, some pro-liferism,11 some miscellaneous other stuff, and, when a legal case catches me in just the right way (happens about once a year), a pathological fixation on it to the exclusion of all else.

I hope you’re happy with the state of this blogletter (I’d like to hear about it if you’re not!), but I’m having a blast, and a critical mass of you seem to be having a great time, too. Party on!

De Civ Next Voyage: My next—hopefully last :)—article on amending the Constitution to fix the Senate is already written and queued for next week. I'm not counting this navel-gazing post toward my word count quota!

“Officers at Common Law,” by Nathaniel Donahue:

The Framers of the federal Constitution said almost nothing about how subordinate officers would be held accountable. This Article provides one overlooked explanation for this longstanding puzzle. The Constitution was enacted against a well-defined jurisprudence that has largely fallen from view: a law of officers. When using the term “Officer” and its framework of “Duties,” the Constitution invoked a distinctive method of regulating state power, in which officers were personally responsible—and liable—for discharging duties defined by law. The Framers and Ratifiers of the Constitution expected that these common-law rules would fill the gap left by the document’s silence.

This Article weaves together the strands of statutory and common law that constituted and regulated the early American officer. This system of legal organization, drawn from longstanding English and colonial practice, empowered officers to create a decentralized governing apparatus that blurred the line between public and private. Its regime of harsh personal liability and individual empowerment impeded efforts to construct a top-down hierarchy by empowering and encouraging officers to resist orders from their superiors. As Americans developed a bureaucratic state over the nineteenth- and twentieth centuries, judges and lawmakers replaced this officer-based paradigm of governance with a system of administrative law that was more conducive to the modern state.

It’s been way too long since I posted a law paper in Worthy Reads, and this is a good one to break the fast.

In its own right, this article held my attention. Perhaps I have been “officer-pilled”! During the insurrection court cases, I became deeply invested in the original meaning of “officer of the United States,” and maybe I’m the only one who got stuck on it.

I don’t think that’s it, though. One of my favorite little books to pull off the virtual shelf and read for a few minutes1 is David Friedman’s Legal Systems Very Different From Our Own, which wonderfully highlights how many different ways there are to structure judicial power outside the Anglo-American tradition. All legal systems share certain things in common, but different design choices and different social capacities can lead into unrecognizable territory.

Donahue’s “Officers at Common Law” paints a picture of a legal regime very unlike our own… except, this legal system is our legal system! It’s in the Anglo-American tradition! It’s less than two hundred years old! It’s like he’s woken up and discovered Tartaria!

Did you know that, once upon a time, in many states, if the Surveyor of Highways didn’t plow the snow from your road on time as the law required, you could sue him for damages? That state employees sometimes had to post bond upon assuming their duties, a deposit in case they broke the law and their boss was held personally liable? Did you know that George Washington believed that he was powerless to fire deputies of the Postmaster General, even if he thought they were bad at their jobs, because only the Postmaster General himself had authority over them?

It was a different world! The article takes a long time to get rolling, but, eventually, fleshes out how that world worked. I thought it was neat.

It is also interesting, of course, because, the leading theory of executive-branch authority among constitutional conservatives today is the unitary executive theory, which holds that the Constitution vests executive power in the President exclusively, and so the President has an inherent right to direct the actions of every member of the executive branch. This theory—which, cards on the table, I have believed in for a long while—has been a key part of many lawsuits involving Mr. Trump’s attempts to reshape the White House by firing people (including people at the Fed). If this paper is right, then unitary executive theory is wrong, at least for originalist-textualists like me. It may still be the case that the President has an inherent removal power, and that Humphrey’s Executor is therefore still wrong, but this paper attempts to put the torch to the notion that the chief executive had exclusive, comprehensive executive power (and puts the removal thesis under serious strain).

Now, I don’t change my whole view on the basis of a single paper’s presentation of historical evidence that may, for all I know, be hotly contested. I don’t think Seth Barrett Tillman has written anything about this, but I’m pretty interested in what he might say. You should certainly regard papers released the same term as major Supreme Court cases dealing with the same subject with some initial suspicion. But, honestly, even if the whole thing were fiction (which seems very unlikely), it would still be a fun read, just for the picture it paints of a very different way of thinking about government officials.

Frankly, wouldn’t it be great to be able to sue Mayor Melvin Carter of the City of Saint Paul—not the city, but Mayor Melvin personally—for his abject failure to plow the roads in a timely fashion? Doesn’t modern administrative law, and the administrative state it supports, kind of, well… suck? Even for those of us (including me) who think Town of Castle Rock v. Gonzales was correctly decided under the law, don’t we all pretty much agree that the outcome stinks for the poor dead kids? All these questions are opened anew by this paper. I commend it.

“Using ChatGPT is not bad for the environment - a cheat sheet,” by Andy Masley:

When you add all these, the full CO2 emissions caused by a ChatGPT prompt comes out to 0.28 g CO2. For context, this is the same amount of CO2 emitted by:

• Streaming a video for 35 seconds

• Uploading 9 photos to social media

• Driving a sedan at a consistent speed for 4 feet

• Running a space heater for 0.7 seconds

• Printing a fifth of a page of a physical book

• Using a laptop for 1 minute. If you’re reading this on a laptop and spend 20 minutes reading the full post, you will have used as much energy as 20 ChatGPT prompts. ChatGPT could write this blog post using less energy than you use to read it!

This is the gist of it. The balance of the article runs through rebuttals. (For example, “What about water use?”) Indeed, it seemed to me, by the end that there was no rational environmental case against AI at all (YMMV), unless:

1. you are the sort of strong environmentalist who doesn’t own a car or a television because it’s bad for the environment, or

2. you are opposing one specific data center in your specific backyard because of site-specific environmental issues. Of course, in this case, your beef isn’t really with AI, but with America’s immense appetite for data of all kinds (of which AI represents only a modest fraction), and specifically with how that appetite is manifesting vis-à-vis your backyard. Still, this objection is legit. I’ll allow it.

Given that the environmental case against AI doesn’t exist (or, if it does exist, it must be very esoteric), it is interesting that so many people repeat this criticism, and it bears wondering why people do that.

You want my theory? (I hope so. You’re subscribed to my newsletter. Only a very small number of you were judicially sentenced to subscribe to De Civ as part of a plea bargain.) I think people get hung up on the environmental arguments against AI for the same reason that they get hung up on continuity arguments against certain movies and TV shows.

Take Star Trek Picard. (Please!) I’m not going to get deep into media criticism here, but Star Trek Picard is a disastrous car wreck of a television show at every level. Each season is uniquely and distinctly the worst thing Star Trek has ever done.2 At its highest highs, Picard is not nearly as entertaining, as engaging, or as humane as the first season of Farscape, a forgettable, no-budget show the SciFi Channel used as filler in the early aughts3. Picard’s seasonal arcs are the kind of writing you’d expect to read on the back of a breakfast cereal, its episode-to-episode execution wildly inconsistent and unhelpful, its original characters obnoxious, and its “legacy” characters bear no resemblance to their originals (which rather misses the point of including them). Character arcs meander and rarely make any sense, then get pruned and replaced with new character arcs that do the same thing. There is almost nothing satisfying about watching Star Trek Picard, and almost infinite problems to complain about.

Yet, when fans actually go to complain about Picard, they talk surprisingly rarely about (say) Q’s nonsensical plan in Season 2, or its hamfisted rewriting of Jean-Luc Picard to fit The Trauma Plot. Instead, they complain about Picard’s sins against the broader Star Trek continuity:

I don’t mean to pick on YouTube’s MajorGrin here; I enjoy his work. This is just a very odd critique to make. They’re not wrong, and continuity is very important (because of its role in verisimilitude and, ultimately, sub-creation), but these kinds of continuity errors are endemic to all large television universes, including Star Trek. I owned this book as a child:

It was 407 pages long. The social contract between writers and audiences is that writers agree to do their best to maintain a consistent continuity, and the audience agrees to forgive and (more importantly) forget the occasional screw-up. When the show is good, they do! When the show is bad, they don’t.

I don’t think most people are well-equipped for literary criticism. It is not easy to articulate exactly why it’s so stupid and awful to, say, turn the beloved learning-to-be-human character from a previous series into a revenge-driven mass murderer with a chip on her shoulder about humanity’s racism. However, it is very, very easy to point out how Series VII, Season 1, Episode 2 contained a line that contradicted a throwaway line in Series II, Season 3, Episode 10.

I think that, when people dislike something, they may not be able to understand or articulate why they disliked it. When that happens, they will resort to the strongest argument they do understand. In the case of television and movies, that’s very often continuity.

In the case of LLMs, it’s environmental impact. It’s a bad argument—in fact, a much worse argument than continuity—but it’s easy to understand, and it’s powerful (because people feel strongly about protecting the environment), so that’s what they go with. They likely have deeper fears about job losses, the displacement of humans from artistic creation (hitherto the most uniquely human activity), the destruction of human relationships, and the construction of Paul Kingsnorth’s Machine. These fears are strongly felt but hard to articulate, very debatable, and (in our technophilic era) can make one sound like a Troglodyte kook calling for Butlerian Jihad. So they say, “ChatGPT is destroying the planet,” instead. Even though it isn’t.

“An Inside View of Hoity-Toity East Coast Boarding Schools,” by Nephew Jonathan:

There are, of course, two ways of balancing your books: you can cut expenses or you can increase revenue.

Scenario: it’s 2009; $French_teacher at $School has trouble getting $Student to learn the days of the week in order. They do flashcards. He asks her to recite them in English.

She can’t.

$Student’s parents were paying full freight for her, and it was 2009 so the endowment had just taken a once-in-a-lifetime beating. In 2005 or 2018 $Student gets rejected; in 2009 she gets admitted.

This doesn’t necessarily put a huge dent in the school’s reputation unless it becomes a pattern (particularly in a scenario like the Great Recession when everybody is in the same boat). Unfortunately at $School it did. $School now costs over $60K a year and doesn’t offer AP classes. A more diplomatic way of putting it (this is a boarding school, we’re learning to be diplomatic) is that $School ended up in a different market niche.

I know nothing of boarding schools, and this article was just a fascinating explanation of them. What is their purpose? How do they work? Why do they work? This is just a good read about them. It has nothing to do with anything at a larger cultural level. It’s just an anthropological dive into a different culture.

Anyone who has ever attended or, better yet, worked at an American private college will recognize not just the conclusions he draws about admins, but even some of the specific character archetypes. I sure know that my college was kept afloat, in part, by rich Saudi kids paying full freight (and freezing their butts off in the Minnesota winter) while the rest of us got various tuition subsidies.

“The Goon Squad,” by Daniel Kolitz:

So where were the gooners? A few seconds’ research revealed their home base: Discord, a social messaging platform not unlike Slack, offering a multiverse of chat-room servers accessible by invitation. If Instagram was where millennials went to post infographics about racial disparities in income and policing, Discord was where zoomers went to swap the screeds of lesser-known school shooters. Or to talk about gaming. Or whatever zoomers did. This was supposedly where the online youth were headed: away from their parents’ social platforms into private, self-policed spaces, little islands of affinity. I joined the first relevant server I could find: the GoonVerse, which had more than fifty thousand members. I examined the rules, which were at once surprisingly woke (no hate speech, no misgendering) and strict enough regarding the posting of child pornography as to suggest a serious and recurrent problem. Before entering, I was prompted to choose my “roles.” Age, region, and gender I could make sense of, but things grew confusing from there. Did I want to be “pinged for tournaments”? Was I a “hentai wankbattler,” or merely a “regular wankbattler”? These questions I answered at random, and then I entered the “stream room.”

Picture this: you work for a masturbation factory in hell. You log on to your scheduled workplace Zoom call.

From one perspective (the ordinary, pedestrian perspective), this is an interesting anthropological deep dive into people who have simply taken a virtue—masturbation—to excess. All things in moderation, people! This is, no doubt, the mindset of the Harper’s audience who first gawked at it.

Of course, I think most people my age are already familiar with the gooners in broad strokes (sorry!), so this story isn’t shocking to us like it is to the article’s original audience. (I assume the average Harper’s reader is 71 years old and has only ever viewed pornography in magazines or DVDs.)4 Even so, the full horrors are still good for a little concerned gawking. It’s like that TV show Hoarders. Everyone knew what they were going to see, but they watched anyway for the cringe. This story is that, but for masturbation freaks. The more people see this, the more they will support laws that put pornography behind an age gate, and that’s good. (These laws are already quite popular.)

On the other hand, from another perspective (mine), this is an anthropological deep dive into the throbbing mass (sorry!) at the center of our culture, because masturbation is the arch-vice of our society.

First, we endorsed masturbation. This happened over the course of the early twentieth century, culminating in the Sexual Revolution. It happened for understandable reasons. It was an overdue backlash against the insane medical hysteria over masturbation that had seized Europe with the publication of Onania and Tissot’s L’Onanisme in the early eighteenth century. This public panic lasted into the late nineteenth century, when Sylvester Graham invented his eponymous Graham cracker to help fight masturbation, and one of Graham’s disciples, John Kellogg (of Kellogg’s Corn Flakes fame) endorsed mass male circumcision in order to “cure” masturbation. Eventually, the world (correctly) realized that masturbation will not actually kill you… then swung the pendulum far in the other direction, on equally worthless medical “evidence,” to the point of positively encouraging it. (No, masturbation is not going to stop you from getting prostate cancer. Sorry. You’ve been lied to.) By the year 2000, we had a firm grip (sorry) on our old “prejudices” and were now firmly pro-masturbation.

This was survivable.

Then, as Kolitz puts it, “in the span of about five years earlier this century, virtually every child in the developed world was granted instant, unrestricted access not merely to hardcore pornography but to some of the most extreme examples of it ever produced in human history.” Much of the productive capacity of the human species—probably more than ever in history—is now devoted to the production and consumption of base sexual fantasy. Dark Satanic mills worth billions of dollars feed women into a machine that churns out #content in order to keep men in a docile, glazed stupor, consumed by sexual fantasy which they know isn’t fulfilling, which they know only fuels their own despair, and yet unable to look away. They’d look just like stunned sheep if it weren’t for the fist in their laps.5

This vice has, of course, many terrible effects directly. The immediate human wreckage is ubiquitous, but this article shows it at such a grotesque extreme that even those inured to it might be able to see it.6 What it does to the dating market is alarming at a macro level and terribly sad at the micro level, and this hardly scratches the surface of its direct effects.

However, our society’s acceptance of PornMasturbationOrgasm—nay, glorification of it—seeps into everything else, too, indirectly. What I particularly like about this article is that it glimpses this reality. Just one facet of it (social media), but he sees it. I’ve also written about how masturbation is the fundamental idiom of current popular film. Who are we to tell them to stop? If pursuing pure animal pleasure, unconnected from growth or goodness, is a worthy (or even acceptable) human aim, then why should our art, or our rhetoric, or anything else aspire to anything more? Your friends on Facebook who relentlessly ragepost memes about incipient socialism, or Trump’s coming coup, are just doing it for the dopamine hit. They’re masturbating. Those of us who seek out only the news media we like and agree with, letting it fill our souls with whatever emotion feels good: masturbating.

…I couldn’t ask for a better segue to Heather Cox Richardson and (sigh) Tucker Carlson:

Read more

Well, I did promise!

I have a long-running series called Some Constitutional Amendments, wherein I try to save the country by proposing modest, politically-neutral, structural reforms to the U.S. Constitution. These “realistic” amendments are designed to fix defects in the Constitution in “conspicuously non-partisan ways,” because partisan amendments are impossible in our polarized era.

In June, I wrote a short, opinionated history of the collapse of the U.S. Senate. Intended as a moderating counterpoint to the populist House of Representatives (like boron control rods in a nuclear reactor), the Senate decayed into a second, dumber House. This, I argued, was due to oversights in the Constitution, particularly its failure to foresee organized political parties.

In July, I wrote up my proposal to fix the Senate. The article had several interesting features:

• It was the longest article I’ve written for Some Constitutional Amendments.

• It was the most complicated idea I’ve had for Some Constitutional Amendments.

• It was the least popular thing I’ve written for Some Constitutional Amendments.

This last was not even a close call. The article had 35 comments, and I do not think a single one said, “Yes, great idea, let’s do it!” You were all wonderfully good sports about it, of course (as the De Civitate readership always is), and you said lots of very kind things. Nonetheless, you largely thought that, while I had many interesting and provocative ideas, I had clearly taken a left turn off an embankment to firey doom about halfway through. A representative example:

TARB: Unfortunately, I feel like this one has gone afar of the idea of “propos[ing] realistic amendments to the Constitution”. Granted, constitutional amendments are so difficult that I’m not sure much of anything can be considered realistic, but prior ones were the sort I could see having some kind of actual possibility, even if I thought some were questionable.

Fair enough, dear readers! If even you, the sort of wonks who read long articles about constitutional amendments, think my proposal is too weird and confusing to work, then it is a foregone conclusion that the voting public will, too. The amendment, at least as I proposed it, is a dead letter.

However, I promised to reply to all your comments in a future article… and I still think that’s important, because, as problematic as my proposal obviously was, I think it’s well worth thinking through all your objections so that we can find a better approach.

Also, it’s well worth arguing with all your objections for petty vindication!

A forewarning: because a lot of the comments on my proposal were pretty technical, this article is going to be pretty inside-baseball. It’s also quite long, because I promised to reply to ALL the comments. If you bounce off of it, I won’t blame you a bit.

A Quick Recap

You will recall that I had three substantive objectives for the revitalized Senate. From most important to least:

• The Senate should be composed of wise, accomplished statesmen, elected by their state governments. They should not be elected by the People, either directly or (worse) indirectly, through partisan political endorsements and (gulp) political party primaries, which are engines of extremism and madness, not wisdom or statesmanship.

• The Senate should be small enough to deliberate effectively.

• Each senator should be ideologically close to her state’s median voter. This would lead to a more moderate Senate, which would be more capable of playing the roles the Founders assigned it: moderating the populism of the House, and achieving consensus in cases that require detached, sober judgment (like treaties and impeachment trials1).

I also had one prudential objective:

• Senate elections must avoid deadlocks, because voters, who loathe deadlocks (which temporarily deprive them of representation in the Senate), passed the Seventeenth Amendment in the first place in order to end deadlocks. Although we still have some deadlocks in the form of post-election lawsuits, the amendment largely worked, and voters are unlikely to accept the return of deadlocks.

I won’t fully restate my reasons for these objectives, since this post is going to be long enough anyway, but I explained more in “A Senate, If You Can Keep It.” These objectives, taken together, led me to my solution. I’ll put the full text of my amendment proposal in this footnote,2 in case you want to remind yourself of all the gory details, but I’ll summarize:

Amendment XXXIII

1. The U.S. Senate has only one senator per state, chosen by state senates.

2. State senates have two calendar days to elect a candidate by a two-thirds supermajority.

3. If the state senate fails to elect by the deadline, a contingency election kicks in, forcing a quick (but moderate) resolution:

   1. All experienced state senators are ranked by an algorithm called DW-NOMINATE, which reliably detects partisanship. The 10% of state senators in the middle (who are presumably closest to the state’s median voter) are nominated.

   2. The state senate votes on these nominees by ranked-choice ballot.

   3. If exactly one nominee beats every other, he is elected senator.

   4. In rare cases, there will be no single winner. (This is akin to someone winning a plurality but not a majority in a popular election, but much rarer.) If that happens, the nominee with the least votes is eliminated from all ballots and votes are recounted. Repeat until there is a single winner.

4. The House of Representatives can amend Section 3 (the contingent election procedure) by a three-quarters supermajority.

5. Pledges, vows, endorsements, instructions, and advice given to a state senator are null and void. State senators cannot be bound, in law or conscience, to vote for any specific candidate. Sorry, political parties!

6. [This section handles the details of the transition from two senators per state to one senator per state. It is very boring and no one commented on it.]

7. Someone who violates this amendment can be sued in a federal court and forced to comply with it.

Now, let’s see what you made of it!

Fundamental Objections

Several of you good people suggested that my original, substantive objectives are just wrong, or at least misguided, and suggested jettisoning one or more of them in favor of the others:

: This is not going to sound good to American ears, but if you really want a representative body full of moderates (relative to the population as a whole, so not necessarily moderates in the sense that politics currently has it), make voting mandatory.

This would seem to tend to push a body toward moderation, at least in a certain sense. However, my aim was a deliberative body composed of wise statesmen. As I’ve often argued in this series, mass popular election tends toward demagogues. Mandatory mass popular election forces on us an even less-informed, less-engaged electorate than the current one, which means it tends even more toward demagogues. Moderate demagogues? Sure, maybe!3 But you won’t build a talented Senate with virtues and vices distinct from the House; even if it works perfectly, you’ll just end up with a second House, still malapportioned, if perhaps rather blander.

There’s a case to be made that my whole vision for American government is based on overvaluing federalism, checks and balances, and the Constitutional design, while undervaluing democracy, adequate representation, and the Westminster design. (Daniel often makes that case, and makes it very well!) However, for me, electing wise, talented people to the Senate on the honest recommendation of their legislative peers is the most important objective. It does not make sense for me to sacrifice it in order to secure the lesser objective of moderation.

However, if you have different priorities than I, Daniel is well worth listening to!

TARB: I wonder if perhaps [party-driven proportional representation] could work as a substitute for the job of how state legislatures previously chose the Senators. Because when it comes to proportional representation, the candidates are not chosen by the public, but by the parties. Political parties may not necessarily be as “in the know” about passing legislation as an actual legislator, but they obviously have incentive to get their policies enforced and would do at least some kind of vetting for who they pick.

Now, I haven’t lived in a country with proportional representation so I’m not sure how it works out in practice in terms of choosing candidates. It certainly nixes any idea of people who go somewhat against their party, like a Joe Manchin or a Suzan Collins, because obviously a party is going to be choosing reliable party stalwarts.

This approach would certainly change the composition of the Senate! Just not in ways that align with my goals—nor, I think, in healthy ways. This approach gives up entirely on senators being near their state’s ideological median in order to hand candidate-selection power to party bosses.

Now, I do think that there are merits to having party bosses in smoke-filled rooms select candidates; they do a better job than dreadful mass primaries. However, they will still be selecting candidates to win a general election, which means they will be putting forward candidates endowed with “talents for low intrigue, and the little arts of popularity,” in the words of Federalist 68. Using a party-driven system of proportional representation means, moreover, that the individual identities of these candidates will be subsumed under the identity of the party leader, who is (inevitably, unavoidably) a demagogue, whether of the Boris Johnson “empty suit” persuasion or the Jeremy Corbyn “oh dear God no” variety. This is the system we are trying to break.

I’m afraid it gets worse. Shifting to a system of national proportional representation would break the connection between states and the federal Senate that we were trying to recover. Remember when I noted, “It is probably not a coincidence that, shortly after the state legislatures lost their ability to police the boundaries of federal power (in order to protect their own), the size, scope, power, and prestige of the federal government exploded.” I think that was bad!

It would also, for the first time in American history, force an election to be fully federalized, since a system where the national popular vote tally actually matters would be too tempting a target for officials in red and blue states to resist. It’s one thing when California’s poor voter ID controls allow illegal immigrants to have a say in who represents California in the Senate. It’s quite another thing when California’s poor voter ID controls give California’s non-citizens a say in who represents Alabama in the Senate! Today, America survives because so many of our perennial election disputes can’t possibly make a difference to the final outcome. Federalism gives us an “ice cube tray” approach, so one state can bungle an election without dragging the other forty-nine down with it. National proportional representation, however, would make every dispute, everywhere, potentially outcome-changing. I therefore tend to think that the fastest road to civil war runs through federal elections.

However, shifting instead to a system of state-based proportional representation in the Senate would require a radical increase in the number of senators (Daniel suggests some 600 members), which would run counter to my objective of establishing a smaller Senate, where every Senator knows every other, and thus becomes more capable of genuine deliberation.

Finally, this model would not work in the current American party system. In order to manage list-based proportional representation, without it immediately collapsing into the same populist horror show that we have today, you must have a certain kind of political party. As Daniel noted in another comment, that kind of political party is illegal in the United States. It has been outright illegal since the Progressive Era, and has never had much purchase in our political traditions.4 Amending the Senate to allow this would thus require smashing and rebuilding the entire American party system. As admittedly ambitious as I was in my proposal, this strikes me as too much for one amendment to take on, especially as a side effect.

This goes some length to explaining why I mostly ignored other legislatures around the world, as Tarb also suggested:

TARB: But what really strikes me as odd about this one is how much theorycrafting there is. Various other countries have bicameral legislatures with an upper house and lower house. Why not look at any of them for inspiration to see if perhaps they might have alternate ways that, if not necessarily what one would want for the US itself, at least be something to springboard ideas off of? I didn’t really see much of that in the article. There’s dozens of other countries that have a bicameral legislature, so looking at them to see how they elect the upper house for comparison seems like it could be ripe for ideas.

I was attempting to restore something the Founding Fathers had attempted but failed to establish: a truly deliberative federal Senate, with the aristocratic virtues of the House of Lords (back when the English aristocracy was a serious and powerful force), but with members chosen by republican institutions for their merits, not by monarchs for their blood.

Most modern democracies around the world are not children of this tradition. They find their roots in the ideology of the Progressive Era around the turn of the last century: the best way to ensure the People are heard is to ensure as few mediating barriers between the People and policy as possible. Those that weren’t actually born into this milieu have been badly eroded by it. As a result, democratic-republican systems around the world today are (in my view) dangerously similar to one another, vulnerable (like the global population of cloned bananas) to the same ailments. It is therefore unsurprising that the crisis of democracy is global.

To my knowledge,5 no one in the past century or so has even attempted what the Founders and I aimed at, so I just didn’t think it was valuable to look to their examples. If that sounds contemptuous of other countries, it shouldn’t. After all, the example I did look to, America’s example, was an example of failure.

“Shovel-Ready FORTRAN Jobs”

There were lots of comments that the proposal was too complicated. For example:

: You left out a key benefit of your proposal: it would create new shovel-ready jobs for Fortran programmers! (DW-NOMINATE is written in Fortran.)

As you acknowledge, this proposal is extremely complicated. Unfortunately, the proposal is so complicated that I worry it would diminish the Senate’s legitimacy. The People may not directly elect their Senators, but they must at least understand the process by which they are elected!

The objection is obviously correct. One of my evergreen goals for Some Constitutional Amendments is simplicity: easy to understand, easy to defend, easy to implement, easy to double-check afterward. This feature is needed to build political support for a proposal, to defend the proposal when it (inevitably) faces organized attack, and to sustain the amendment over generations. Simplicity also happens to be an important feature of blog posts, as we see here!:

TARB: This one, though, I read through the article and I’m honestly still confused by the concept. That’s not a great sign. Granted, I’ll admit I did a bunch of skimming of the later parts

Oh, dear, a blog post where a reader starts skimming is not a blog post that is doing its job as a piece of writing (at least, not with that reader).

As I had to acknowledge in the original piece, I abandoned simplicity because I felt I had no better choice. I could not find a way to achieve my other objectives without sacrificing simplicity. I thought that simplicity was the least costly thing to sacrifice. As we will shortly see, some of you thought differently. Fair enough! Trade-offs are hard, and reasonable people disagree about them! That’s why it’s so important to minimize the number of trade-offs in one’s proposals, and my proposal fell short of that.

One minor thing before I move on, though: I actually don’t think “the People need to understand the process by which their senators are elected”! The People mostly do not understand almost anything about how government works. It is only thanks to the recent electoral college crises (in 2000, 2016, and 2020) that our generation understands the electoral college. The pundit-watching class (a narrow slice of Americans) was vaguely aware of it and mentioned it every few years if polls looked tight. Someone on CNN would explain it to you on election night as they watched the state returns come in. However, even today, if you ask someone for whom they voted for President in 2020, they’re going to say Joe Biden or Donald Trump, not Melvin Aanerud or Janet Beihoffer—even though they did, in fact, cast their vote for either Melvin or Janet, not Joe or Donald. Almost nobody understands the 12th Amendment contingent election in the event of an electoral college tie; ask around to see who understands the unit rule.

The People don’t care how it works, as long as (1) it does, in fact work, and (2) they don’t have to be the ones worrying about it.

Unfortunately, during an amendment proposal process, the People do have to worry about it. If my proposal somehow came before the states for ratification, I would recommend explaining it to voters like this:

This amendment forces two-thirds of the state senate to agree on a consensus candidate for Senate. If they can’t agree in two days, it forces them to use a complicated, annoying procedure to elect a moderate instead. They’ll usually agree on someone before it comes to that, because it would be way too annoying otherwise.

This isn’t ideal. The ideal would be to have an actually simple amendment proposal. I just think that getting stuck with a complex proposal is not, in itself, necessarily fatal for voters.

Deadlocks Don’t Matter?

Several of you recoiled so much at the complexity of the proposal that you decided that the less-costly tradeoff would be to sacrifice the proposal’s anti-deadlock provisions:

: The more I think about this, the more it makes sense to just let the single Senate seat from a given state go vacant, if the state senators deadlock. There will be enough states that are able to elect Senators (due to one-party domination if nothing else) that the “purple” states will have a powerful incentive not to be left out, and come to a consensus to elect someone.

CHRISTOPHER M. RUSSO: The epicycles of the proposal stem from contingent elections as a method to break deadlocks. Why care about deadlocks? Previously, you mention that some Senate seats would remain open for months (sometimes years) because state senators could not agree on a candidate.

So what? If the Senate has a quorum to conduct its business, then let a state deprive itself of representation until it get its act together. Ultimately, if the state senators are unwilling to compromise, then they face accountability from voters whom (it seems) do not like deadlocks.

One of the major causes of the Seventeenth Amendment was senate deadlocks, which could leave a state’s U.S. Senate seat empty for months or years. Voters got really upset about this, and passed the Seventeenth Amendment partly to end deadlocks, which (unlike other goals of the Seventeenth Amendment) mostly worked. My proposal therefore insisted on avoiding them.

However, Christopher M. Russo is exactly right that all the epicycles in my proposal stem from that. If I had been willing to accept the possibility of a deadlock, my proposal would have been ever-so-simple:

1. Each state gets one senator.

2. Each senator is elected by a two-thirds majority of the state senate.

3. The end. Celebrate with a root beer.

I think the mistake here is assuming that partisans are primarily loyal to their states rather than to their parties. As we have recently seen in the escalating gerrymander wars, especially in Texas and California, in polarized eras, both partisan legislators and their partisan voter base are perfectly happy, even eager, to do obvious violence to their state’s political system in order to advance the power of their national political parties.

These partisans have very little interest in ensuring that their state has representation in the federal Senate. Their concern is ensuring that their party has maximum advantage there. This gives minority-party legislators in purple states very strong incentives to deliberately and permanently deadlock their senate races, if at all possible. After all, if they cooperate and make a deal, the best they can hope for is to elect a moderate member of the opposite party, who will oppose the minority party in Washington more than half the time. If they refuse all cooperation, however, they can keep the state’s seat in Washington empty forever. Their voters will reward them for this behavior, while punishing them if they dare cooperate.

As a result, if we adopted this rule, I expect that, under most circumstances, only states where a single party has a legislative super-majority would be able to elect a U.S. Senator. Technically, sure, the purple-state voters ought to hold obstructionists accountable, putting a stop to all this, so, when they don’t, they’re technically getting what they deserve.6 However, we’re going to find ourselves with 10+ states more or less permanently lacking representation in the U.S. Senate. It’s hard to see that as a win for republican institutions and federalism.

You could soften the blow by abandoning my super-majority requirement to elect, returning to a simple majority (or double-majority in both houses)… but then you’re back to parties electing their favored candidates without consulting the minority, which means nominations by party primary, state legislative races becoming proxy elections, Senate candidates going on the stump, and all the other stuff we hoped to contain.

Suppress Deadlocks with Proper Conclaves

This brings us to an interesting suggestion:

CHRISTOPHER M. RUSSO: Let me assume, arguendo, that deadlocks are a problem that must be fixed. You discuss the merits of a conclave-like system, but you distrust individual state governments to enforce secrecy. Yet, Congress can regulate the election of senators (Art. I, Sec. 4). Congress could set forth regulations requiring a conclave-like system. Congress could also impose stiff penalties for states who fail to abide by the regulations, such as rejecting their senator-elects.

While Congress cannot regulate the place of choosing senators, I can imagine such regulation including safe harbor provision for states who conduct their conclaves in DC with federal oversight and assistance. E.g., Capitol Hill police stationed outside the conclave to prevent unauthorized access. The feds do a good job of keeping things secret when they want to!

This could work! I just think it would be difficult to enforce consistently throughout the nation. For electing the POTUS, I proposed a single conclave of 50 governors, once every 4 years. Using it for Senate elections, by contrast, would require holding 16 conclaves every 2 years. Each separate conclave would need to isolate around 40 state senators (for a total of around 650), not just from the world, but from one another’s conclaves. Each will need on-site living and dining facilities, fairly intense (and incorruptible) security (both to protect the members and to keep them from communicating with the outside world), and a meeting hall.

This is definitely doable, and, if it were done well, I think it would succeed at solving the deadlocks problem. Deadlocks seem unlikely in a world where state senators are effectively imprisoned until they reach an agreement. Even the most partisan diehards won’t be willing to leave a seat empty for two years if it means missing their lives back home. There’s a reason papal conclaves never last more than a week anymore, and part of that reason is much more rigorous isolation of the electors. If an Article V convention seemed receptive to Senatorial conclaves instead of my proposal, I’d happily support it, and it would be a great improvement on our current system.

However, going this route strikes me as one or two orders of magnitude harder than having a single conclave for president every four years. That makes me nervous, especially in light of the American people’s past reaction to deadlocks, and sent me looking for a method that could guarantee a decisive, timely result.

A Win’s A Win

Now we get into the comments where readers argued with specific sections of the proposal. Before we dive into the criticisms, though, I’ll note a win.

I argued that we should reduce the number of U.S. Senators from two per state to one per state. I provided some details on how to accomplish that transition. I wrote that this was “low-hanging fruit,” and that “we should do it even if nothing else in this article sticks.”

As far as I could tell, you all pretty much agreed. The only objection came from Daniel, in the course of his more fundamental argument for proportional representation (which requires more senators). Assuming we aren’t adopting proportional representation, then, it seems that a “make the Senate smaller” amendment, as a standalone, might be well-received, at least by De Civ readers!

Along the same lines, I did see your many notes that the proposal was “ingenious” and “well-thought” and “well worth the wait,” and I very much appreciated them. Obviously, an article about “responding to comments” is going to inevitably focus on the negative aspects of your comments, but you’re a lovely readership, kind even as you rake me over the coals, and I’m grateful for you.

Can’t Trust Them Judges

Section 7 of my proposal made the entire amendment subject to the jurisdiction of federal courts, which raised some eyebrows:

: Expect partisan courts. Was that ballot really secret?

Oh, for sure the courts will be partisan. Judges usually try not to be partisan political actors, but, of course, they can’t help it.

However, consider the alternatives! There seem to be three other bodies capable of adjudicating disputes over this amendment: the state senate itself (which is presumably the one doing the shenanigans that sent the case to court in the first place), the U.S. Senate (which, today, ignores the law in favor of partisan interests), and bad actors from the governor’s office (their names are Steve Simon).

Compared to those three options, the courts seem best.

On the other hand, our goal here is to make the U.S. Senate much less partisan. If we succeed at this, maybe the Senate would be the better venue for hearing disputes.

: Section 7 will be the first time the word “justiciable” appears in the Constitution. I don’t like the concept, and I don’t want to implicitly approve it by leaving the implication some things aren’t justiciable. And besides, this threatens Article 1 Section 5 Paragraph 1 where “each House shall be the Judge of the Elections, Returns and Qualifications of its own Members” - so I’d rather just restate that clause with the desired changes. So, what do you imagine justiciability looking like here?

There’s no need to imply that some things aren’t justiciable, because some things definitely aren’t! The political question doctrine and its cousins exclude a large but ill-defined zone of the Constitution from judicial review. Some of this is good, like the fact that the courts cannot review the verdict of an impeachment trial. Some of this is bad, like the fact that, according to the Supreme Court, the courts cannot review at least some constitutional qualifications for high office. Wrangling over this doctrine consumes about the first third of every legal battle involving any legislature. I, for one, am fed up with it.

I thought that, for this amendment, it was safer to ensure access to judicial review. I wasn’t sure I had thought of all the ways it might be needed, so I thought it best to just lay down blanket permission, even (yes) at the expense of the “Elections, Returns, and Qualifications” clause, which would not apply to anything arising out of this amendment. As I proceed through the other comments, I’ll note a few places where justiciability might be a nice feature!

Simpler Election Methods?

Three years ago, in “Death to Gerrymanders”, I wrote, “You simply can’t write a five-page algorithm into a federal constitutional amendment.” Then, in July, I wrote an algorithm into a federal constitutional amendment: DW-NOMINATE. This was a mess, but it enabled the simplest method I could find that reliably elected senators close to their state’s median voter.

Several of you suggested that I could accomplish the same goals with much less awkward methods!

: Why not just start using Single Transferable Vote with a 2/3rds threshold, instead of going straight to complex algorithms that most people can’t check on their own?

Well, great minds must think alike, because this was the very first thing I tried.

Unfortunately, it is a mathematical property of single transferable vote that you can’t (meaningfully) apply a two-thirds threshold to it. If you try, the winner is always the same as the simple majority winner. After all, consider how STV works: you eliminate the least-popular candidate and recount the votes without ‘em, repeating the process until someone has enough first-choice votes to pass the victory threshold.

However, once someone has a simple majority of first-choice votes, they can’t be eliminated. There is no combination of rankings and ballots and head-to-head matchups that could ever cause them to be the “least popular candidate.” They will simply continue accumulating votes while other candidates are eliminated, until they inevitably reach two-thirds, even if it takes a hundred rounds and requires the last-choice votes of a third of the voters.

In a disciplined state legislature with tactical voting, the result is that the partisan candidate nominated by the majority caucus (probably at the behest of primary voters) will always defeat the candidate from the state’s ideological center. The method provides no protection against popular influence or partisanship. It reduces to a simple internal party caucus with unnecessary extra steps.

Every system I looked at had these problems. I spent, literally, entire days looking them over, not getting any writing done at all, trying to find one that could be adapted to fit the needs of a U.S. Senate election. Bucklin voting gave me hope for a while, but its cloning problem ended up ruling it out. (In a Bucklin vote, the side that nominates more candidates can engineer a win. It can generally use tactical voting to ensure that its preferred candidate wins, as well. This reduced to a simple internal majority-party caucus with extra steps.)

At least for now, there’s simply no alternative: if you want anyone other than the majority party’s ideological choice to be viable, and especially if you want some degree of compromise between different factions, you must eliminate the majority party’s preference prior to final voting. There is no known voting mechanism that can do this for you. If you don’t do this, then your Senate will fail the same way the Founders’ Senate did: political parties, mass primaries, extremist candidates, and state elections becoming proxies for federal ones.

My blunt-force method of doing that was to apply DW-NOMINATE, which makes the majority party’s preferred candidate ineligible (unless the majority party, anticipating this, chose a centrist, which is fine).

GILBERT: Note that the least controversial hated will usually not be a Condorcet winner, because a Condorcet winner still can have a fairly large minority who hates him. But electing the least hated member is actually fairly easy: Use your favorite method of proportional representation (which should be STV but here it doesn’t matter much) to elect an exclusion panel that has one less member than your state senate. The person not elected to the exclusion panel is your winner. In a two-party system, effectively the majority gets to exclude all of the minority, and the minority gets to exclude a lot of majority members in order of hate. If the majority is comfortably large, they also get to exclude some of their own.

When I read this comment for the first time, I got a sparkle in my eye. It was a sparkle I knew too well, from having already pinned my hopes on forty-seven other elegant-sounding solutions to the problem back in June (only to be disappointed each time), but that didn’t stop me from hoping. Gilbert’s idea makes sense! It’s beautiful! It’s simple! It’s so easy!

It doesn’t work.

Here’s how you kill it: the majority party selects a candidate (probably someone who won a popular primary election of some sort). The majority party then instructs its members to place that candidate last on their ballots. If all majority party members follow the instruction, they are guaranteed to win. If there are defections, they still win as long as they still have a majority of the body following the instruction. If they don’t have a large enough majority to spare the defectors, they probably still win anyway, unless the opposition has an equally coordinated campaign for an alternate that has managed to efficiently pick up all the defectors.

So this method reduces to a simple internal party caucus with extra steps. The center is, as usual, squeezed out.

I’m sorry. I loved this idea.7 I really wanted it to work. Even after it didn’t work, it gave me an idea that sent me to the lab for two three days with that same sparkle in my eye (greatly delaying the publication of this article!). Alas, at the moment, it’s looking like my idea might just reduce to Bucklin all over again.

ALEXANDER MACKAY: This might be a crude solution, but what if we simply make it so that, after a certain number of rounds of voting, if the legislature can’t agree on a candidate, they must all resign, and are ineligible from ever holding any political office ever again? That would almost certainly outweigh any pressure from party bosses.

The difficulty I see with this is that it allows an intransigent minority with nothing to destroy a majority at its whim. If this were the constitutional rule, and I were, say, the Georgia Democratic Party, I’d recruit a bunch of randos from in and around Atlanta to run for state senate. They would win, by and large, because the great majority of state senate seats are very safe seats, especially in these polarized times. Holding one-third of the Georgia Senate in my grasp, I would tell the GOP three-fifths majority, “Agree to elect Stacey Abrams. My senators will vote for no one else. If you refuse, we will destroy all your political careers.” What sane, ambitious local pol would ever agree to run for state senate under those conditions? You may ask, “Would any politician in the United States ever willingly take an action that would bar him from re-election?” Ask the 2023 GOP members of the Oregon House! (Now imagine if they could have taken the rest of the Oregon House down with them!)

Granted, that’s an extreme example. However, members in a persistent minority, who have no real hopes of ever moving to statewide office (because their state is the wrong color), have much less to lose than those in the majority. That’s always going to be a factor in negotiations. I do (desperately) want to give the minority party some leverage in these elections, where the original Constitution gave them none at all. However, I think this gives the minority rather too much leverage.

ANTHONY: If no nominee is elected within two calendar days, all nominees who received a majority of approval votes shall be listed in order of age. If the list is at least three nominees, the nominee with the median age is selected. If the are are an even number of nominees, the older (or younger?) of the two median nominees shall be selected. If fewer than three nominees received a majority of approval votes, the list shall be all members of the voting body who are eligible to serve in the Senate.

I have a deep and abiding fondness for election by sortition. Injecting an element of randomness into elections probably does not reduce candidate quality, but probably does reduce candidate ambition. Too, I’ve always agreed way down in my bones with the old Buckley aphorism: “I would rather be governed by the first 2,000 people in the telephone directory than by the Harvard University faculty,” which is basically what you’d expect from a lottery system. I have puzzled for a long time whether the solution to our Seventeenth Amendment problem might involve some added element of randomness.

However, this is not the way. The reason is the same as all the others: it allows a coordinated majority party to control the outcome with no tug from the minority. Here’s how:

Suppose you are the leader of the majority in the state senate. Your primary voters have instructed you to support a specific candidate, so you duly put him up for nomination. Your party gets him a majority (obviously) but can’t get him to two-thirds without support from the minority. No matter! You instruct your caucus to vote no on all other nominees brought forth by anyone, especially the minority party. A few are tempted to defect, but not enough. Two calendar days expire with no one reaching the two-thirds threshold, so we go to your method of choosing between candidates who secured a majority. There was only one. He wins.

Suppose somehow you do somehow find yourself with another person on the list of people who got a majority. Maybe there was a communications snafus, or maybe your party started out negotiating in good faith. Is your preferred nominee at risk? Not at all! All you have to do is find someone—anyone!—in the state who is older/younger than your favored nominee (as appropriate) and, before two calendar days expires, nominate him. You instruct a bare majority of your caucus to support him, assuring them that this is simply a strategic move to ensure the victory of the guy you all really want. They have every reason to believe you can deliver (because you can), so they do as you say. Your preferred candidate is now the median guy by age again. The minority party tries to counter with a nominee of their own to keep the randomness alive, but you block them.

Even if they could get a nominee through, there’s a rule of only one nominee per pair of senators, and there’s more senators in the majority than the minority, so you will always get the last word here.

So this method reduces to a simple internal party caucus with extra steps.

DANIEL PAREJA: I said this before in the context of electing Popes, but just elect Senators in the way Venice elected its doge [as of the year 1269]. Yes, many state legislatures are too small to use the full procedure, so instead specify the election of a representative assembly in a manner consistent with the method of election of the most populous branch of the state legislature and no smaller than it, and no smaller than, say, two hundred members.

I love this, too. The doge election method is fantastic. If you don’t know it, here is a summary:

1. The Great Council of Venice (300-400 people) meets to elect the doge.

2. Thirty members of the Council (“The Thirty”)8 were chosen by lot.

3. Nine of the Thirty (“The First Nine”) were chosen by lot.

4. The First Nine chose forty men by vote, requiring seven out of nine to agree to each candidate before electing them to the Forty.

5. Of the Forty, twelve were chosen by lot.

6. The Twelve elected twenty-five, requiring nine approvals out of twelve.

7. Of the Twenty-Five, nine were chosen by lot (“The Second Nine”).

8. The Second Nine elected forty-five men, requiring seven approvals of nine.

9. Of the Forty-Five, eleven were chosen by lot.

10. The Eleven elected forty-one men, requiring nine approvals of eleven.

11. The Forty-One, finally, elected the Doge… requiring twenty-five approvals of forty-one, just for one last supermajority requirement.

Wasn’t I just saying our election methods should include a little more randomness? This system appears to have worked rather well. It stood from 1268 until Venice fell to Napoleon in 1797, which is a hell of a lot longer than the electoral college worked!

However. This method existed in a republic with a very different electoral system feeding the Great Council and no strong political parties (as far as I know), which appears to have introduced so many layers to the process as a protection against bribery,9 which is not a huge concern in American elections today.10 Would it work here?

My (somewhat naive) guess is that, in any legislature that’s inclined to deadlock over a supermajority requirement, this procedure would usually deadlock just as badly… at every stage where it applies a supermajority requirement. Maybe not? Maybe certain subgroups of legislators are able to forge consensus where the full body wasn’t capable of doing that? However, it’s hard for me to imagine exactly how that would happen, and, if it did happen, it would be dictated by the luck of the draw in the reduction-by-lot rounds. To avoid deadlock, it would need to happen a lot.

The reduction-by-lot rounds already seem dangerous to me, because they run the risk of (randomly) handing one of our two political parties just enough seats on the Nines, the Twelve, or the Eleven to push through their nominees with no input from the majority. If that happened, the party that lucked into control would be able to dictate the rest of the process with trivial effort. After all, if there’s 7 Democrats on the Second Nine, then it doesn’t matter if the Republicans hold 65% of the chamber. The Democrats can appoint all Democrats to the Forty-Five, so the Eleven is all Democrats, who then easily agree on the Forty-One, who then elect whatever radical they want with no possibility of opposition from the Republicans.

If that happens, the method reduces to a simple internal party caucus with extra steps (but with the minority caucus randomly winning sometimes). If it doesn’t happen, it seems to me what it’s most likely to do is turn a single deadlock into an extended series of deadlocks.

KRENN: [O]ne of the easier filters would just be to ban people who have experience with first-past-the-post elections from being senators.

…If the problem is that Senators have too many of the vices and virtues caused by running for popular democratic elections, then step one is to ensure that success at running in a popular democratic election can’t ever contribute to becoming a senator.

Likewise, if the problem is that Senators weren’t independent enough and were becoming party creatures... limiting their opportunity to get used to being party creatures by holding other offices controlled by party-run elections is also potentially helpful.

…And while we’re at at it:

Rule 2: No person who has served in the Federal Judiciary may ever again run for, or hold office in, or otherwise be employed by, any part of the federal executive or legislative branches. But prior service in those branches is not disqualifying from being a member of the federal judiciary.

…Rule 2 is about preventing conflicts of interest. Post-civil war, I believe there was a Supreme Court chief justice who made same really strange rulings, because he thought it would best position him for a future presidential run. And senators make strange votes or take strange positions all the time because they think it will better position them for runs as presidents, or to be a senior cabinet member for the next president from their party. I would prefer to remove that temptation by simply stating that once you’re a senator, you can’t ever go back to being a member of the executive branch.

Krenn’s comment goes on to explain in some detail how, exactly, one would accomplish this.

I understand the impulse, but I don’t think this would play out the way one would hope. Political parties routinely identify and run non-politician candidates for high office, from the Traditional Buckets of Populism:11

• Businessman who argues his experience in real-world business competition means he’ll do better than a career politician at the job of… legislating (Bernie Moreno, Eric Hovde, Donald Trump, Kelly Loeffler)

• Retired soldier who points to his honorable service record and obvious patriotism, as if these are sufficient qualifications to be the expert legislator a U.S. Senator needs to be (Mikie Sherrill when she ran for House, Tammy Duckworth when she ran for House, J.D. Vance, Tim Sheehey)

  • Folksy retired soldier who can posture as an independent (Dan Osborn, Graham Platner)

• Celebrities (Dr. Oz, Arnold Schwarzenegger, Mark Kelly, Donald Trump again, Jesse Ventura)

These groups of people pretty consistently turn out to be, not just demagogues, but the worst demagogues of all. Having absolutely no idea what is involved in running a government, they make wild promises on the trail and (often) turn into the worst kinds of attention-seeking fundraising grift-trains once they make it into office.

They are also brought forward by their political parties because political parties have no shortage of people of this sort. Political parties are huge, jam-packed with activists who have spent many years in service. Some of them have stellar records and the low talents of the campaign stump. A few end up in the Senate.

Again, I understand the impulse, but I don’t think this would play out in a way that advances our objectives.

Now, it’s perfectly possible that it would advance other objectives! I am intrigued by the idea of making some high offices automatically fatal to a political career as a means of countering conflicts of interest. That might be a separate proposal worth considering. However, I think that’s beyond the scope of today’s article, which is strictly about fixing the U.S. Senate.

Goodharting DW-NOMINATE

We used to have Campbell’s Law, the law of teaching to the test: “The more any quantitative social indicator is used for social decision-making, the more subject it will be to corruption pressures and the more apt it will be to distort and corrupt the social processes it is intended to monitor.”

Then the Internet discovered Goodhart’s Law: “When a measure becomes a target, it ceases to be a good measure.”

And, like, dang, that is a much better way of putting it.

I put DW-NOMINATE at the heart of the rarely-used “fallback election” in my proposal because I think it is fairly robust against “Goodharting” (that is, the exploitation of a politically inert or neutral system the moment it becomes politically advantageous). Many of you disagreed!

Quite a lot, actually!

GILBERT: The amendment has a hard-coded assumption that recorded votes by name and roll-call votes are the same thing. I don’t know if this is currently true as a matter of American ritual but it is certainly gameable. Just hold votes likely to produce the desired statistics by roll-call and others by electronic device, signed ballot, division, or whatever.

In American parliamentary law, any vote where the yeas and nays of each member are recorded is a roll call vote. Every electronic device used for recording votes is universally known as an “electronic roll call system.” Signed ballots are so rare that Mason’s Manual 2010 doesn’t even mention them, instead assuming that ballots are, by definition, secret. A recent edition of Robert’s mentions them, but treats them as functionally equivalent to a roll call. You could change the names of these things, maybe rename your electronic voting system to “electronic voting system that is used instead of a roll call, which is a very different thing,” but this would not change the original public meaning of the amendment as-proposed, and therefore would not get around the amendment.

However, it is possible to conceive of legislatures trying to use wordplay to avoid the clear dictate of the amendment. This may call for slightly more refined language, but, more to the point, this is one place where it would be useful to have judicial oversight over any majority parties tempted to vandalize centuries of parliamentary law in order to win.

MASTRICHT: DW-Nominate can be rigged. At the end of a session, just spend many votes on utterly trivial matters. Have the one faction vote but in lockstep, but without informing the other side how they will vote. Have the desired nominee vote to the contrary. If any partisans of one’s own side are defecting, one can probe by telling them the opposite, and cut them out—one only needs the buy-in of a majority to keep forcing votes. The body of votes added by this process will, on average, make the desired candidate seem more opposed to the majority party than *any* member of the opposition.

This is all well and good until you remember that, first, roll call votes are typically taken by electronic roll call system, so everyone can see who’s voting and how—and change their votes accordingly. Second, roll call votes taken “manually” proceed in alphabetical order, revealing the votes of one faction to the other during the vote—and, before the result is announced, a member can generally change his vote. As Robert’s Rules puts it:

Changing One’s Vote. Except when the vote has been taken by ballot (or some other method that provides secrecy), a member has a right to change his vote up to the time the result is announced but afterward can make the change only by the unanimous consent of the assembly requested and granted, without debate, immediately following the chair’s announcement of the result of the vote.12

So you could certainly call a roll call vote on a trivial matter, but the minority party will get to decide whether or not to allow you to manipulate DW-NOMINATE scores with the outcome.

It is possible to imagine state senate majorities cramming contrary rules down the throats of their minority parties so that majority-party voters have inherent advantages over minority-party voters, but this would no longer be a roll call vote in the parliamentary sense. (This is not the first time anyone has ever tried to exploit voting procedures! Parliamentary law is pretty robust on this stuff!) Again, a good place for courts to have some oversight, so that centuries of parliamentary law, rather than the vandalizing majority, can get the last word.

Related:

KRENN: The party in control of the house decrees that there will be three votes a day, on whether to break for breakfast, lunch, and dinner. 40% of the controlling party is ordered to either abstain or vote against the break. Bam, the ‘designated moderates’, who aren’t really moderates, just increased their moderation score by voting with the opposition three times a day every session. If the opposition catches on, and starts to vote against breaks, then you simply order the sergeant-at-arms to chain them to their desks and not give them any food until they vote in favor of breaking for food, so the ‘moderate’ can vote with them.

If majority parties had the power to arbitrarily chain legislators to their desks—legislators from one party, no less!—until they voted a certain specific way, don’t you think they would have used it before 2025? The Nazis and the Italian Fascists did this sort of thing on occasional key votes, but it was a harbinger of the imminent end of democracy.

Again, though, it would be good for this to be justiciable, so legislators could be assured of courts vindicating them if the majority tries to chain them to their desks, rather than there being any risk of it being treated as “a political question.”

GILBERT: I don’t know how easy it is for isolated members to force votes in the various legislatures, but if it isn’t hard it probably can be made so. If roll-calls just happen very rarely, new members can be kept disqualified for a long time.

It is generally very easy, and very hard to make hard. As Mason’s Manual explains:

Sec. 536. Voting by Ballot. #1: Voting by ballot is rarely, if ever, used in legislative bodies, because the members vote in a representative capacity and their constituents are entitled to know how their representatives vote. In order to ensure that right, constitutions usually require that all bills be passed by roll call and that the vote be recorded in the journal, and also that a small number can require a roll call on any question and have the vote recorded in the journal.

If you can get the voters to sign off on a change to the state constitution, though, there could be a problem. Unfortunately, that’s somewhat plausible in a world where California Proposition 50 just passed (as gerrymander retaliation), but still strikes me, at least, as unlikely to win majority support.

KRENN: There are also many shenanigans available by, say, controlling who gets to close the vote, when. Maybe minority-party legislators have to cast their vote and stick with it, but majority-party legislators can switch their votes en masse at the last second, and then the vote-counter closes the vote right afterwards.

Generally speaking, voting continues until all members have cast votes, or until a majority votes to close voting… but votes can still be changed. I really don’t think you could get away with having significantly different voting rights for minority and majority members. Past a certain point, that becomes not just a parliamentary rules issue but a federal issue under the “republican form of government” clause. I think that point arrives pretty quick, which is why there’s so little precedent for it in American political history, even before/during/after the Civil War.

That being said, parliamentary bodies do cheat on vote closures at times. I’ve seen them do it. They get away with it under current law largely because it makes only a procedural difference, not a substantive one. Another place where it would be good to be able to have a court say, “Now hang on, I’ve read your rulebook, and what you just did isn’t in it.”

GILBERT: In the edge-case of perfect party-discipline DW-NOMINATE will collapse the spectrum to two points and the ranking will become undefined. With not-quite-but-near perfect party discipline it will be much easier to game or near random.

Collapse requires not just perfect party unanimity, but perfect party attendance. No deaths, no resignations, no vacation days, no excused absences, no car breakdowns. It also requires cooperation from the minority party. Good luck with it!

If you could pull it off, though, the median legislator would not be undefined. You’d still line up all their DW-NOMINATE scores on a line and find the value of the one in the middle. It would be the DW-NOMINATE score of the majority party. Under my proposal, you would then nominate the entire majority and have a ranked-choice ballot among them. This stupid failure state would allow the majority to elect whoever it wanted from among them, but again, it requires minority cooperation, so I’m not worried about it.

GILBERT: If the presiding officer of the state senate doesn’t like the expected section 2 winner, he can force section 3 by not waiting for nominations and just recessing the section 2 session immediately after opening it.

This isn’t about DW-NOMINATE, but, since it’s of a piece with several other concerns, I’ll mention it here:

The presiding officer of a body is not generally empowered to adjourn or recess the body by himself. The motion to recess is a privileged motion, passed on a second and a majority vote (usually a voice vote or unanimous consent, since motions to recess are rarely controversial). If he tries to (falsely) rule that there are “no further nominations” in order to hasten Section Three, that’s a ruling of the presiding officer, which is appealable to the body. (Again, I speak in generalities, since I can’t speak to the specifics of the rules in every state.)

Now, if the entire majority wants to terminate Section Two to hasten a Section Three election by voting a recess, I suppose that’s fine, but it’s not obvious why they would want to. It is impossible for anyone to win in Section Two without the agreement of a majority of the body anyway (indeed, a super-majority), so, in general, the majority has nothing to worry about by letting Section Two play out. Moreover, moving from a Section Two election to Section Three election has high costs. It tightly restricts the nominees to a small set, and greatly raises the probability that someone will be elected without the support of a majority of the majority. Strategically, it is better to play out Section Two and hope for a win there before the system forces you into the unpleasant and unpredictable Section Three.

Indeed, the threat of Section Three is a big part of what I think would make this system work! Section Three is unpleasant and railroaded! Parties and members will want to avoid it… and that’s what will get them to the negotiating table to compromise.

DANIEL: Next: If you want to make your specification of DW-NOMINATE more proof against chicanery, you can say something like “as defined on such-and-such date”. (More on this later in this comment.)

This is a good idea. I might even add, “in such-and-such source document.” I hesitated, because it’s more words in a wordy proposal, but, hey, in for a penny…

GILBERT: Even if you ban [roll-call order manipulation], it is still easy for both parties to make a pact to statistically demoderate their respective moderates.

Hey, if you can somehow convince the minority party to allow you to manipulate DW-NOMINATE to ensure your preferred nominee becomes the next senator from your state… and the minority party agrees, and its members go along with it… then haven’t you just achieved exactly the cross-party consensus we were trying to force you to elect all along? Either you just elected a centrist, or you gave the minority party commensurate concessions to elect an ideologue.

I’m fine with this. Cross-party pact away.

(I do not expect this to actually work, except in legislatures where a two-thirds consensus candidate is already achievable.)

Unwilling Senators

EVAN TRIANGLE: In your proposal, if nobody gets chosen by Section 2 consensus, Section 3 says the Senator must be one of several specific members of the nominating state legislature. I’m dubious about what this will do to the legislature. Worse, I can easily imagine a specific legislator who’s somehow unable to move to DC (whether due to medical issues, family issues, or any number of other things) who messes up the political calculus of balloting. Perhaps the legislators in question could have the option of nominating someone else (by secret ballot so it’s unknown who’s nominating them), rather than themselves be automatically nominated? Or, simpler, decline the nomination and have the next-closest-scoring legislator be drafted?

KRENN: What if none of the ‘moderate’ ‘state senators’ actually WANT to be federal senators? Moving their family to DC sounds like a lot of work. Maybe they would prefer to just stay home. Or maybe they were bribed to say that.

There is an ancient American tradition, which goes like this:

You’re not supposed to want to be elected. It’s supposed to be a heavy burden that is laid upon you reluctantly, which you decline over and over again, but finally, when your fellows show just how much they need you, then, at last, you make your decision. Will you bear this burden for the country? If so, you accept. If no, you decline and the convention is back to square one. Now, we’ve become so used to the degenerate mores of a declining democracy that it seems somehow wrong to elect someone who has the good sense not to want the job! If such politicians still exist, that’s exactly whom I’d hope to elect!

Of course, it is possible that someone might refuse election.

In my proposal, the resolution mechanism is straightforward but costly. Having been elected, the senate vacancy is filled. The new U.S. Senator can now resign his seat, creating a new vacancy. The entire process begins again, going all the way back to Section Two.

I don’t think it would be wise to allow nominated median senators to nominate substitutes, as Evan suggests, since this would naturally create great pressure on them to nominate (who else?) the party’s preferred pick. The secret nomination Evan suggests would not help alleviate the pressure, since, if the party’s preferred pick were not nominated, party bosses would know that their entire slate of nominees is to blame. The option to decline the nomination would simply focus incredible pressure on each majority-party senator to decline until the party’s choice was selected.

However, it’s a fair point that a senator may, sometimes, have burdens he truly can’t set aside to serve in Washington for a few years, and that his fellow senators may elect him anyway. In that case, it seems to me that it would be fine for him, after his election, to refuse the office, and then have it pass to the second-place winner instead (and so on), rather than restarting the entire process from square one. I think it worthwhile to revise the proposal to include something along these lines.

However, if everyone on the nominees list refuses? That’s probably three or four people. (It’s at least two.) If three consecutive politicians elected to the U.S. Senate refuse to serve as U.S. Senators, then you probably do have some kind of bribery problem. The last thing you can do at that point is give the bribers what they want (other nomination options). You’ve got to restart the process at Section Two. Sorry, deadlocks are terrible, but if your state deliberately deadlocks itself like this, intentionally overcoming all the safeguards through corruption and whatnot, then, I’m sorry, you earned it. Figure it out.

Sneaky State Senate Shenanigans

My proposal consigned U.S. Senate elections to the state senates, not the legislatures as a whole. There were a number of reasons for this. One of them was because it helped prevent all the parliamentary shenanigans y’all just tried out! State senates have pretty well-developed rules of order and precedents. Joint legislative sessions, as a general rule, do not.

However, because Nebraska has a unicameral legislature, I didn’t say, “…chosen by the state senate.” I said, “…chosen by the least numerous branch of the legislature thereof.” This gave you guys some Ideas!

CHRISTOPHER M. RUSSO: A highly-partisan state could pass a constitutional amendment creating a third legislative chamber with two members, each elected every six years by popular vote in a statewide election. This third chamber serves no legislative function. It is merely a proxy election for the state’s U.S. Senator.

GILBERT: I don’t think the states are required to make consent of all branches of the legislature necessary for legislation. Certainly various kinds of overridable upper-house vetos are common internationally. So a state constitution could just make the governor into a single-member and therefore least numerous branch of the legislature with the same veto power he now has outside of it. Or even have a “house of the senate majority leader”.

MASTRICHT: So, the relevant body is whatever branch of the legislature has the least members. We can easily convert this back into a statewide senatorial scheme by erecting a new chamber with a single representative. This would allow, effectively, for popular election (but done 2+ years in advance), or, I suppose one could have rig a scheme where, while nominally popular, in practice this chamber will usually filled by appointments from the governor.

Some of this makes me go, “Man, this is why we need the courts to be able to justice this thing.”

I don’t think the executive branch can lawfully be construed as part of the legislative branch, especially if it doesn’t do anything. I don’t think an inert chamber with no legislative function lawfully qualifies as a branch of the legislature. A court could just say so.13

After all, we already have a similar clause in the Constitution:

…Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

To my knowledge, nobody has even tried making a gigantic third state “legislative” house with no powers and restricted suffrage qualifications simply to game this requirement. Could they? I like to think not!

However, I could be wrong. The text itself doesn’t explicitly prohibit it, and maybe the only reason people spent centuries not doing this is because there was no partisan advantage in doing so.

Moreover, Gilbert suggested adding a third house of the legislature with some legislative powers. These would be very weak powers, along the lines of the House of Lords… but it would be enough to qualify the chamber as a legislature. That would suffice for the third house to perform its true purpose: handing control over the U.S. Senate election to a single political party. This is best avoided.

I hesitate to be too prescriptive about the structure of state legislative houses in a constitutional amendment proposal, but I think you guys are right that the amendment ought to define a branch of the legislature as an elected chamber with at least ten members whose consent is necessary to the passage of any law. Does that sound reasonable? It certainly seems rather harder to game.

A sidebar on language.

CHRISTOPHER M. RUSSO: (Nitpick: In Section 1, I would write “least numerous chamber” not “least numerous branch.”)

Me, too, but the Constitution says “branch.”

When the Founders used it in Article I, Section 2, I said to myself, “Okay, that’s just Founding-era obsolete vocabulary.” Alas, then they did it again in 1912 with the Seventeenth Amendment, which also uses the “most numerous branch” construction.

I still agree that “chamber” is better, and we should use it if we’re writing non-constitutional text, but, if the Constitution has used the same construction twice, I’m going to stick with it, for fear that changing that one word will have some horrible legal consequence I haven’t thought of.

Some Nitty and Some Gritty on the Voting

My proposal says that, if there are no eligible nominees in the state senate, then the election is suspended and the state can’t have a U.S. Senator until it finds some.

EVAN TRIANGLE: I don’t like suspending the Senatorial election when no eligible candidates present themselves under Section 3. I can see how it might be good to completely prevent party bosses from manipulating things thusly - but I think it’d be impractical for them to make all longserving state legislators resign! So I’d replace that with something like the three legislators nearest to qualifying.

The reason I took this (admittedly brutal) approach was because I couldn’t imagine a circumstance where there would be no eligible candidates except if party bosses had (somehow) manipulated all long-serving state senators out of the body. Having done so, they deserve to be punished with a lack of representation until they fix it.

After all, when in American history has there been a state senate without one single thirty-year old citizen who has served at least two years in the body?14

(…That’s not a rhetorical question. I feel like you, Evan Triangle, might actually know this.)

If I’ve overlooked some reasonably plausible scenario where a state senate might have no qualified nominees for legitimate reasons, I’ll recant. For now, though, I’m inclined to keep the restriction in, because the only situations where it becomes a problem seem to be situations where it ought to become a problem.

MASTRICHT: As to a voting system, definitionally, a majority will always be able to push through a Condorcet winner. If you want to force moderation, you do not want an electoral system that always elects Condorcet winners. As is, this drops the threshold for guaranteed partisan victory from 2/3 to a 50.01% bloc.

Once the state senate has deadlocked, and you have decided (as I did) that it must immediately resolve the deadlock, you have to pick a voting system that guarantees deadlock resolution, which leaves you with, basically, two choices:

• First-past-the-post, which allows someone to win with as little as, say, 39% of the vote, or

• Some majority-winner system like Condorcet, which at least requires someone to win 50%+.

Of course, Mastricht is absolutely correct that a Condorcet system cannot give the minority even the slightest bit of leverage. There just isn’t a viable voting system for a small, well-coordinated, highly tactical electorate that requires a two-thirds support threshold. It’s majority rule or plurality rule or deadlock.

That is why DW-NOMINATE is in the proposal to filter nominees. Given these constraints, restricting the list of nominees is vastly more important than the details of the final voting. DW-NOMINATE ensures that all the final candidates are (relatively) moderate.

I frankly assume that, in most cases, the majority party will then identify the most conservative / most progressive nominee and then vote en masse for him, guaranteeing a first-round Condorcet victory. But they’ll still be irritated, because the “most conservative / most progressive” nominee isn’t very conservative/progressive at all, since the nominees were all forced to be the most moderate members of the chamber.

That’s the best idea I had without accepting deadlock.

Section 4: Special Fast-Track Process to Amend this Amendment

: 1) I would add a topic or substantial similarity limitation in section 4, just in case

GILBERT: There is no topical limitation on section 3, so section 4 is effectively an unlimited power to amend the constitution.

Oops!

Yes, this was an oversight.

To say the least.

EVAN TRIANGLE: I absolutely do not want the House to be able to immediately change the Senatorial election method. At least, follow the Parliament Act of 1911 and make the House pass the same proposal twice over two years (which in our case will mean a general election intervenes).

Perhaps I should never have gone down this road of allowing a special amendment process in the first place. I did it, of course, because this thing is very complex (too complex) and I didn’t think it could be bulletproofed until it had been tried out. This betrays my lack of confidence that my proposal would really work right out of the gate.

Assuming arguendo that there ought to be a fast-track amendment process, I think it has to be the House that is given this power. It can’t be the Senate! It’s bad enough that the current House and Senate, fearing for their own power, refuse to propose gerrymandering amendments or expand-the-house amendments or anything else that might structurally reform them. We can hardly give control over the Senate election process to the Senate. Moreover, seventy-five percent of the House is a huge threshold, so this power couldn’t be invoked casually.

All that said, I’m fine with the suggestion of forcing them to pass it twice, with an election intervening. Forget the Parliament Act 1911; Nevada already does this with amendments to their state constitution, so it’s thoroughly American and strikes me as quite sensible.

Section 5: Voiding Pledges, Vows, and Oaths

GILBERT: As far as I understand it, unconstitutional and federally preempted laws in the US are unenforceable but stay on the books (and maybe become enforceable later if the higher law changes). Section 5 would create a unique exception by potentially making a provision of a state constitution not just unenforceable but actually void. In German legal terms, you have reinvented Geltungsvorrang (validity precedence) while previously American law only [k]new Anwendungsvorrang (application precedence).

I answer in two ways.

At a practical level:

Naturally, once an amendment like this picks up momentum, these provisions tend to work their way out state constitutions anyway. Indeed, this has already largely happened, because pretty much all state-law provisions binding or “instructing” legislators to elect certain U.S. Senators vanished either just after the Seventeenth Amendment was ratified, or in the century since. As far as I know, then, this difficulty is purely theoretical as applied to the Senate.

(Note, however, that there is an identical section in De Civitate’s proposed presidential election amendment. That very much does stomp all over a bunch of existing state laws binding the electoral college, so it’s still worth considering this at a higher level.)

At a theoretical level:

We proposed an amendment banning slavery while several state constitutions still explicitly protected it.15 The suffrage amendments (extending the right to vote to women and The Youth) did not, I suppose, directly contradict state clauses defining electors as being older than twenty-one, but they certainly created, shall we say, some constitutional tension! Texas had a provision in its constitution after 1879 regulating alcohol and expressly requiring that prohibition be decided by local elections, not by any higher authority. The Prohibition amendment obviously stomped on that.

It worked out, so I’m sure this will, too.16

MASTRICHT: After the fact punishments seem entirely permissible by parties here. What is to stop them from allocating funding for reelection as they wish? Of course, the ballots being secret makes this harder to do.

Your last sentence hits the nail on the head.

Section Five, on its own, doesn’t break the power of the parties. Not even close. There are endless informal and indirect mechanisms that the parties can use to pressure, reward, and (if necessary) retaliate against rebels. Section Five does only two things:

• It breaks all their mechanisms of formal control, plus all future mechanisms of formal control they might try to develop under the new rules.

• No less important, it declares even informal mechanisms of control to be morally illegitimate. This can only be a norm, because there is no mechanism for enforcing it as a law, but norms are important. They shape how people understand the Constitution, and what forms of manipulation are and are not kosher.

However, the actual defenses against informal party mechanisms of control lie elsewhere. The secret ballot is the first and most important. The requirement that every ballot rank every candidate is another. The two-thirds requirement in Section Two gives cover to party members who are already open to moderation and compromise but don’t have an excuse to do it. Finally, the harsh nomination restrictions in Section Three force lawmakers to choose between a handful of disfavored candidates neither party would ever select as a first choice. All of this makes it orders of magnitude harder for a party to identify rebels, or to reliably tell the difference between ideological dissent and smart tactics. Those incentives are much more important than Section 5.

Section 5 is still a good (and probably necessary) component, but it’s not doing nearly as much work as it appears on first reading.

: Why not just make it illegal for party organizations to endorse Senatorial candidates? You could even have a broad, vague legal understanding of what exactly is a ‘party organization’ established through caselaw, to disincentivize attempting to work around the prohibition. Something like, “Any private organization that runs, nominates, or endorses candidate for election to public office may not endorse, nominate or otherwise select a candidate for any election to the United States Senate”. …By making it difficult for external organizations to express a universal preference, you make it easier for state senators to make their own decisions without having to fear directly defying powerful outside forces.

This is a much more straightforward approach. If it could be carried out successfully, it wouldn’t eliminate many of the epicycles from this proposal. I’m not surprised it came to your mind, because it was also the first thing that came to mind when I considered the problem.

However, it has serious drawbacks.

First, it repeals some core parts of the First Amendment. The primary purpose of political parties (guaranteed by the freedom of association) is to endorse and support candidates (guaranteed by the freedom of speech). Nor is this some ancillary thing, like banning middle schoolers from saying “six-seven” in public schools. This is what the Supreme Court calls “core political speech,” the very speech that the First Amendment was designed to protect. Of course, we are writing a constitutional amendment here! We are allowed to repeal the First Amendment! However, I think that’s a very dangerous hole to poke in one of our most important dams. I think doing so would be wildly unpopular. I also think it would be polarizing along partisan lines, because limiting the First Amendment (especially with respect to political parties and campaign finance) is a major Democratic issue, and resisting those restrictions has become a core Republican issue. Once an amendment proposal picks up a partisan valence, it’s dead.

Second, even setting all that aside, I don’t think this approach is enforceable. Parties will always find ways of communicating, “vote for that guy” to their supporters, even if they never come right out and say it. Again, that’s their whole purpose! What this change would do is hand the party currently in control of the White House an immense cudgel for the most brutal lawfare this country has ever seen. Under either the Democrats or the Republicans, the Department of Justice would use this provision to ruthlessly persecute even a whisper of approbation for a candidate by the opposite party, while allowing their own party to openly hold primaries.

As much as I would like to simply and straightforwardly prevent political parties from collectively endorsing U.S. Senate candidates, there are some things that the law cannot accomplish, no matter how much is sacrificed along the way. This seems to be one of them.

Merem rejoins:

This isn’t that major a new step in American law, either: we already do this in the tax code, where certain non-profits are banned from endorsing candidates. That would give you an existing body of law to build on.

These restrictions don’t really work. Non-profits are all still allowed to do “issue advocacy,” and to factually state where particular candidates stand on those issues. They are able to effectively get around the Johnson Amendment pretty much trivially with this, and there’s very little the government can do about that without threatening the First Amendment.17 We all know which candidates are endorsed by the Protestant megachurch up the street, festooned in American flags like a knothead temple. We all know which candidates are endorsed by the Black Evangelical church down the road where the Democratic candidates are all welcomed like heroes (but some are more heroes than others). We all know which candidates the local university is hoping to aid with its get-out-the-vote drives.

One of the things that keeps the Johnson Amendment from turning into a political weapon or suppressing core political speech is that the Johnson Amendment is so easily circumvented. A real, robust attempt to suppress core political speech by core political speakers would, I think, likely backfire.

Quibbles & Corrections

MASTRICHT: Kyrsten* Sinema

Oops. Corrected.

Even in this age of ridiculous spellings of “Kristin” (to say nothing of “Caitlin”), my mind simply could not accept that she put her “y” there, of all places.

: I have a minor quibble to make about the phrasing of Section 3: “Each member qualified for the U.S. Senate who has served in the body for at least two full years (even if non-contiguous) and who has cast at least one hundred roll-call votes shall be eligible for nomination.” -- I would argue that the plainest reading of this would indicate that we are looking for people who were already in the US Senate, unless I am failing legalese...

That’s fair. The antecedent is ambiguous. I’ll have to take it to the workshop. (Chuck offers a suggestion, “State body,” but I think the whole sentence should probably be laid out differently.)

CHUCK C: Also, after writing that, I am curious if you are restricting this to current members of the State’s body?

My intention is to include only current members, yes. I think the text does that, but maybe it needs clearing up.

MASTRICHT: While we’re here, I’ll note that I did check whether any states had equally sized senate/house, as that would cause problems. There are not, currently.

Substack does gifs now, right?

I mean, lucky escape for me, but Mastricht is right, and Jeff Winger’s face is pretty much the one I made when I read it. That’s a problem the text will need to account for in some way.

If there’s a tie for the largest state legislative chamber, I’m inclined to just require random selection at each U.S. Senate vacancy. Simple, no obvious partisan advantage, and it’s only moderately weird that the two bodies could switch off choosing senators.

EVAN TRIANGLE: As a nitpick, Section 3 doesn’t mention the redistribution of votes after a nominee is eliminated.

Does this need to be mentioned? I think of “redistributing votes” as a convenient way of explaining how ranked-choice methods work to people who don’t know about them, not something ranked-choice methods actually do. If a candidate is eliminated, you just recount all the ballots, skipping that candidate. Votes don’t actually move around.18 Another equally cromulent way of describing it would be “erasing” the eliminated candidate from every ballot and recounting, but, of course, nobody actually pulls out a giant eraser and rubs the name off. The ballot remains the ballot and the votes remain distributed exactly the way they were cast. Eliminated candidates are simply omitted during counting.

Am I weird for thinking this way? Does text need to spell out elimination and redistribution?

Populism Adapts

I close with this summative comment from Daniel Pareja.

DANIEL PAREJA: I think a common theme of some of the other comments made is this: this amendment assumes that political actors will continue to abide by the current conventions, but the optimal partisan political outcomes are achieved by changing the conventions, and thus the conventions will change. The only way to avoid this is for voters to be willing, en masse, to punish politicians who try to game the system, which is dubious on multiple grounds.

This is, in effect, the same problem faced by the people who want to use the current electoral system for President to bootstrap a nationwide popular vote via an interstate compact: political actors who dislike that can simply start playing by different rules. (For instance, state legislatures might remember that they can just directly appoint electors for President, and not bother to have any sort of statewide vote on the matter.)

I hope I have now shown that I really did put some thought into the question of how partisans will react to the new rules, and I tried hard to write adaptations for those adaptations into the rules. It is true, of course, that, like water seeking its level, partisans will always seek an edge, and it is also true that the only impenetrable backstop against them is a virtuous, free people. In the end, it always comes back to John Adams: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

However, I think that, just as a virtuous people reinforces and defends the structures of government against the vandals, so, too, does a well-structured government reinforce and defend the virtues of the People. If ever the People are called upon to punish politicians en masse for structural violations, then the structures have already failed and are in need of reform. Yes, the responsibility to punish offending politicians belongs to the People, but, if existing electoral structures create incentives for the politicians to violate them, the People are going to be asked to do this over and over again. That isn’t sustainable. The structures themselves need to hold the politicians in check.

This is why (for example) it is a good thing that the King of England still holds a royal veto (at least in theory). Though he may never use it, and could not do so without doing immense political damage to his nation’s political order, the very threat of it keeps Parliament from going too far.

I don’t think the American system is working very well at the moment. At a large scale, I mean, just look at the last presidential election, Cackles versus The Thug.19 At a small scale, the Senate was designed to serve as one of the containment structures I’m talking about. Forget the cooling saucer; I keep going back to that image of boron control rods in a nuclear reactor. But it isn’t. The Senate is broken. Acknowledging that parties will always adapt, we should still fix the Senate, and try to give parties incentives that line up with what the Senate is intended to be… or fence them out when we can’t.

We may get it wrong, or, after a few decades, the parties may find new adaptations. Then we try again. That’s why our Constitution has an amendments process. It’s worth doing this, not just out of some OCD desire to make the Senate work “correctly,” but for the health of our elections and the salus populi.

What Now?

Speaking of trying again…

Although I have just spent rather a lot of words explaining and defending it, my proposed Senate amendment remains DoA. I am going to have to give it another shot.

Some Constitutional Amendments has now spent five months on the Senate. If you have read all three parts in full, then I congratulate you: those three articles contained more words than The Lion, The Witch, and the Wardrobe.20

However, I think the Senate is worth it. It is one of the crown jewels of our Constitution, and it has become a sewer. I can’t walk away from it. There’s got to be a way to allow legislators to pick their Senator, insulated from popular and political pressures, to give all factions some voice and some stake in the selection, to help the Senate become deliberative again, and to do it all without bringing back deadlocks… or the crushing complexity of an algorithm-based contingent election, which alienated so many of you.

Your comments were invaluable, even when I didn’t agree with them. You have given me lots to think about. I see options for the Senate now that I didn’t see in July. No doubt, your further comments on this article (if I didn’t completely wear you out by its length!) will shed further light on the problem. I’ll try and deal with everything in my next—and hopefully final—post on the Senate.

Once more unto the breach, my friends.

The worst thing about Ron Reed’s play, Tolkien, is its title.

You hear that title, you see that poster, you think that it’s just another biopic, like the film of the same name that came out a few years ago. You’re going to go in there, find out about Tolkien’s sad childhood, meet a lot of on-the-nose characters who (it is implied) inspired the character of Nienna1 or whatever, and finally see him begin to sketch the beginnings of the legendarium on a sickbed in France, but not until after he endures The Horrors of War (TM). And it won’t even star Colm Meaney as Tolkien’s priestly father figure!

As a result, reader, I did not actually want to see Tolkien when it came to Open Window Theatre in March 2025. However, I had just finished reading The Lord of the Rings to my daughter (who was also mid-Narnia), she was excited for it… and I had free tickets. So I dadded up and took her.

I’m glad I did, because Tolkien turned out to be the favorite out of all the stories I’ve encountered this year. (Second place probably goes to The Outer Wilds.2)

Open Window’s staging is very good, as usual. As someone who’s seen a bit of Tolkien singing, Shad Cooper sold me immediately on his Don Tolkien. I am sure then-executive director Jeremy Stanbary must have been tempted by the role. Stanbary is always a pleasant presence on stage. Yet I think he was wise to defer in this case, because Cooper was crackerjack.

As someone who has not listened to any C.S. Lewis, I always imagined him as the elderly uncle in The Lion, the Witch, and the Wardrobe. I was therefore startled by the youthful energy of Caleb Cabiness in the part… but, of course, how else could Lewis possibly be? The man must have been young, even when he was old. I quickly fell under Cabiness’s spell, as I imagine many of Lewis’s students did.

I particularly enjoyed Ian Hardy as Warnie Lewis, C.S.’s brother. The play has pushed Major Warnie into a comic relief role—occasionally even pulling him into scenes in which he could not possibly have participated just so he can drop a rapid-fire bon mot or six—and, what can I say? Hardy made me laugh. The production struck me as unusually spare for Open Window, but nevertheless effective. When the script is good, Open Window never fails to rise to the occasion.3 They give good value for your dollar, on par with other small local theatre companies.

The play is not a biopic. It is not even about Tolkien, as such. It is the story of J.R.R. Tolkien’s friendship with C.S. Lewis between 1926 and 1949. Everything in the play4 is there to show that friendship either building up or breaking down. When their literary works are mentioned, it is only insofar as it services that story.

The building-up of their friendship is the story Western Christians have been enamored with for decades: the great Lewis and Tolkien, reading their books to one another over drinks, conspiring to protect the Western canon in the Oxford syllabus, telling jokes in obscure dead languages, all years before either was famous! Tolkien captured Lewis’s imagination so thoroughly that Lewis found not only friendship, but God! Lewis, in return, convinced Tolkien to give the world hobbits, instead of keeping them locked up in his desk drawer! We love that! Why wouldn’t we?

But it is the latter story—the collapse of the friendship—where Tolkien finds its true north.5

Playwright Ron Reed knows his subject is not the man, but the friendship. Open Window notes in the playbill that Reed offered an alternative title for this play: Tollers & Jack: The Story of a Friendship. This is a much better title, if a touch on the nose.

I assume Open Window went with Tolkien anyway for marketing reasons. Open Window is an explicitly Catholic professional theatre, with a Catholic donor base and largely Catholic advertisers. It’s probably easy to sell their specific audience on any play that has the One Ring on the poster (even if the One Ring is never actually discussed in the play). By contrast, Tollers & Jack would make people think they’re going to see some kind of Jeeves & Wooster spinoff starring Jack the Ripper. Worse, “The Story of a Friendship” sounds like the tagline of an Equestria Girls movie.

Open Window is very consistent in how it titles these things. Their play about St. Nicholas is called Nicholas. Their play about Joan of Arc? Joan of Arc. St. Pier Giorgio Frassati? FRASSATI.6 It is therefore unsurprising that they chose the title Tolkien.7 I find this approach refreshingly direct.

Tollers and Jack is still a better title.8

I knew the story in broad strokes, as most do: I knew Tolkien and Lewis were very close at Oxford and that they were the core of the literary circle known today as The Inklings. I knew that Tolkien disliked Narnia, while Lewis thought the songs of the elves could be a bore. I knew Tolkien was the model for Dr. Ransom in Lewis’s Out of the Silent Planet and Perelandra, and I knew that the abrupt tonal shift in the final book, That Hideous Strength, of which Tolkien did not approve, was due to the influence of Charles Williams. I knew that Tolkien believed C.S. Lewis would have become a Catholic, but for Lewis’s deep Ulster prejudice against all things “Romish.”9

However, I have always averted my eyes from the details of the catastrophe. As far as I can make it out, most have. Even Humphrey Carpenter’s acclaimed biography, The Inklings, tries to explain the decay in their friendship with two paragraphs on page 256, then rushes on to Joy Davidman and Till We Have Faces, his eyes sliding away from the pain.

Ron Reed looked it straight-on, discovered everything that was discoverable about it, and wrote a play from what he found. I know this, because there were several passages in Tolkien that I thought were a little ridiculous, a little overwritten, or a little too on-the-nose. I then looked up what had actually happened. Infallibly, it turned out Reed had told the solemn truth, usually with near-verbatim quotes.

No play can tell the historically true story of the end of a friendship. There are too many different views from the participants. Blame is cast, memories warp with time. Far too much of it happens in the hidden recesses of the heart, where a man’s choices might not be clear even to himself. For example, can we entirely trust Tolkien’s claim, in the 1960s, after Lewis’s death, that Charles Williams had come between him and Lewis? Probably not—at least, not if we also trust Tolkien’s statements about Williams in the 1940s and 1950s. Much is unknowable.

The cold biographical facts are all here, of course: Lewis’s enthusiasm for Charles Williams, whose writing Tolkien disdained. Tolkien’s enthusiasm for Roy Campbell, whom Lewis disdained for his politics—and, in Tolkien’s eyes, for his Catholicism. Lewis’s great popularity as a lecturer on Christianity, which Tolkien (who had brought Lewis into Christianity) saw as rather vulgar, prideful, and not sufficiently respectful of Mystery. (Tolkien’s assessment may have been tinged by jealousy; he was not yet famous.) Reed’s script brings new and welcome emphasis to Tolkien’s immense personal strain and exhaustion, especially during the War, which led doctors to beg him to take a term off. (He didn’t.)10

Yet these are only strains. Strains exist in every long-lived relationship, because people change. Strains do not destroy friendships. Choices do. A responsible biography can’t quite show you those choices. A play must.

What is best in Tolkien, though, is not what it says about the end of this friendship, but what it says about the end of every friendship. Most of us have never experienced these particular strains, because we have never been famous Christian writers at Oxford around World War II… but we’ve all lost friends, and we’ve all seen the choices that lead there. Which of your dead friendships does this remind you of?

TOLKIEN: [Charles Williams’s] worked his magic on you, I’d say.

LEWIS: You make it sound like a schoolgirl crush.

TOLKIEN: You wouldn’t be the first. He gives a talk on chastity of all things, and every pretty young thing in Oxford lines up to meet him!

LEWIS: Perhaps at least some of them are drawn to that inner goodness.

TOLKIEN: Perhaps some of them can read. […]

Pause

LEWIS: Listen, I’ve dropped by to see what you’re up to. Williams asked me to drop off the Pain manuscript for the Press to look at. Probably get lunch at the Eastgate. Care to join us?

TOLKIEN: I wouldn’t want to disrupt things.

LEWIS: You’d hardly be.

TOLKIEN: I’ve work to do.

LEWIS: Alright.

Beat

TOLKIEN: Look, Jack. You know what’s overdue? A good old-fashioned late-nighter. That’s how I’ll get unstuck – give you the whole picture, Middle Earth-wise, see if you can break the logjam. Or even just sipping sherry and poking the fire, the two of us. […]

LEWIS: Wish I could. Fact is, I’m short on time as well, particularly with this BBC business hauling me up to London. Tuesday lunches, and Thursday night Inklings, that’s about all the time I can spare.

TOLKIEN: Yes, well, of course.

LEWIS: Come summer, eh?

TOLKIEN: Come summer.

This scene comes very early in the erosion of the friendship, and, considered in itself, there’s nothing really wrong with it. However, it contains within it all the choices that will, in the end, tear them apart. Tolkien criticizes Lewis’s friend. He makes it personal.11 To an earnest defense, Tolkien concedes nothing, but responds with sarcasm, the acid of relationship. Lewis (generously) extends an invitation anyway, which Tolkien begs off. Tolkien makes a counter-invitation, excluding Williams—but Lewis, by now quite irritated, now begs off himself.

Every deep friendship has days like this, of course, and any friendship worth its salt will survive it.12 What friendship cannot survive is a barrage of days like this.

Tolkien and Lewis are both gentlemen. What’s more, they really do dearly love one another. As the play progresses, they put their disagreements behind them, over and over. They extend a hundred little olive branches to one another, each humbling himself a little each time, for the good of the friendship.

Yet each confrontation leaves a wound. Before the wound is fully healed, there’s another, and another. The deepening scars make everything more charged. By the final days, comments they might once have received as light teasing, they now hear as sharp personal attacks.

By the final days, they are right.

The penultimate scene finally pushed me to tears. It pushed me to tears again later that night, when I did my research and discovered that it really did end this way:

Read more

I’ve complained about “Banned” Books Week many times already, most recently in 2023:

The plain fact is that librarians, both school and public, have limited resources, so they use their substantial powers of intelligence and discretion to pursue donations and purchases that actually serve their readers — in other words, they massively discriminate, ignoring 99.99% of all books that have ever been published in favor of the 0.01% of books which, in their opinions as library professionals, serve the goals of the public or school library where they work.

If they did this with their own private money, there is nothing the public could do if it decided that, sometimes, the librarians picked the wrong books. But, of course, public and school libraries don’t rely exclusively on private funding; they rely, in very large part, on the income we give them through taxation. In a normal, healthy, functioning democracy, our involvement in keeping libraries alive would give us some say in what libraries do with the money we give them. “Banned Books Week” is largely designed to lock us out of the process, so that librarians can continue to discriminate against and in favor of whatever books suit their judgement, without taking ours into consideration.

Nevertheless, it persisted.

It is 2025 and, alas, the ALA and its alphabet coalition have once again announced that this week is “Banned Books Week.”

I have decided, then, to join the fun. The graphic at the top of this post includes nine books that have been banned1 from bookshelves, publishers, classrooms, or contests in the United States—yet, very mysteriously, the professional Banned Books Crusaders have had nothing to say about them.2 This despite the fact that the bans some of these books faced negatively impacted availability and sales, far, far more than anything “Moms for Liberty” would be able to manage in its wildest dreams—with far greater long-lasting chilling effects on the freedom to share ideas.

Let’s be fair, though. Perhaps the ALA simply isn’t aware of these book bans! Maybe if you suggest to your local librarian that she put a copy of Irreversible Damage next to that well-worn copy of The Hate U Give they keep pretending has been banned, she’ll happily take you up on it. (If she does, recommend her for a raise to your city council, because she’s a Real One!)

But if you want the ALA itself to say anything about Irreversible Damage, well… don’t hold your breath. You know and I know and they know and everyone knows that, at the national level, Banned Books Week has never been about book bans.

So go ahead and share this graphic with the world—if that feels fun to you. (It felt fun to me, which is why I wrote the article.)

The end! The rest of this post is sources, with a very brief conclusion and a few honorable mentions at the way bottom.

Sources for the Graphic

When Harry Became Sally, by Ryan T. Anderson

Banned by Amazon for four years. Ban summarily reversed in early 2025, likely due to the re-election of Donald Trump. The ban and its direct impact discussed by the author at First Things: “When Amazon Erased My Book”.

Harry Potter, by J.K. Rowling

In fairness, JKR still mints money for everyone, so only a few extremists still take her off the shelves. Nevertheless, if every momentary, unsuccessful parental challenge for sexual content in the text merits an inclusion on the ALA’s banned books list, surely it matters if a famous bookstore bans an author for her real-world political views. That’s exactly what The Booksmith did this year, per National Review: “California Bookstore Pulls J.K. Rowling’s Books from Shelves over Author’s Defense of Sex-Based Women’s Rights”.

Seems like it also matters if a museum of popular culture erases the creator of the biggest literary pop culture phenomenon of the current century, like Stalin erasing Trotsky from photographs, for those same political views. Yet here we are, The Art newspaper reports: “J.K. Rowling removed from museum’s Harry Potter displays over transphobic views.”

James and the Giant Peach, by Roald Dahl

In puritanical Victorian England, they used to take great classics and delete all the naughty words and adult content. This was called “bowdlerization,” named after Thomas Bowdler, whose edition of The Family Shakespeare deleted all the sexual innuendos. Thus, for example, in Romeo and Juliet, Mercutio’s dirty remark:

Mercutio. ‘Tis no less, I tell you, for the bawdy hand of the dial is now upon the prick of noon.

Nurse. Out upon you! What a man are you?!

Becomes:

Mercutio. ‘Tis no less, I tell you, for the hand of the dial is now upon the point of noon.

The Nurse’s rebuke is omitted altogether.3

Everyone agrees this Victorian form of censorship was terrible. It corrupted the actual great works of our history. It injured rich (and sometimes earthy) characterizations of complex characters. It sucked the marrow out of powerful language. It created continuity errors at times. It could even ruin the meter!4 One of the great advances of the twentieth century was the extinction of bowdlerization in literature.

Or so we thought. Roald Dahl’s books were all bowdlerized in 2023. This despite Dahl’s impassioned insistence during his life that not “a single comma in one of my books” could be changed without his personal authorization.

If you want an unexpurgated version of James and the Giant Peach, you have no option to buy it new. You have to either buy a specially-marked boxed set of all his works, or go to a used books store and hope for the best—or pirate the book. You do not have a legal right to pirate unbowdlerized Roald Dahl books, but you do have a moral right.5 But I talk about copyright in the item on Dr. Seuss, so I’ll leave it there for now. For now: censorship is back, it is far more pervasive and restricting than any so-called “book ban” from a library, and the ALA has nothing to say about it—even as it has spilled hundreds of pages of ink protesting censorship of obscene images marketed to young teenagers.

Theft of Fire, by Devon Eriksen

This one wasn’t actually pulled off the shelves… since, as a self-published book, it really wasn’t on the shelves to begin with. However, the full story here was egregious enough to make the list: as a birthday surprise, the author’s wife secretly entered his book into a self-published novel competition.

Winning a competition like that can be a big deal for a self-published novel. Working outside the world of established publishers with mega-marketing budgets and big retail deals, a huge crop of self-published books dies unprofitable every year, not because they are bad, but because nobody is paying attention.6 Theft of Fire was doing well in the competition.

However, the author had conservative politics,7 and sometimes tweeted about them. The competition he was in found out about this, created a code of conduct ex nihilo mid-competition, then banned the book from the competition for Eriksen’s alleged violations of the code the following day, without ever citing any specific violations, and despite the fact that Eriksen (who did not know he was in the competition!) had never agreed to any code of conduct.

Does this sort of thing ever happen to progressives? Honest question. Progressive privilege is a huge thing where I live, but I live in a blue area, so it’s expected that I would see a lot of progressive censoriousness toward conservatives, and indeed I have shaped my online life, my chosen creative pursuits, and much of my expression around the risk of cancellation.8 So maybe it does happen, somewhere! Either way, cancellation of authors for mainstream political opinions9 should certainly concern the champions of “Banned Books.”

“The Artificial N*****”, by Flannery O’Connor

(Ha ha, no, even in an article complaining about censoriousness, I’m not dumb enough to write that title out.)

For this one, there’s actually no mystery why the Professional Banned Books Crusaders haven’t complained about it: this short story was removed from classrooms pre-emptively. Thus, there is no paper trail for the crusaders to point to. I therefore can’t blame them for their silence!

In fact, to their credit, I think the crusaders probably would raise the hue and cry if there was a parental challenge against “The Artificial [N-Word].” They’ve acquitted themselves well in defending The Adventures of Huckleberry Finn against similar attacks10 (even if they are sometimes pretty mealy-mouthed about it).

Nevertheless, this short story, and others like it, continue to be severely censored, and everyone knows it. We need hardly list the many instances of stories being removed from school curricula because the story features a White person using the Deplorable Word. Teachers have gotten the message! I’ve talked to professors in the real world who teach Flannery O’Connor and ask why they aren’t assigning O’Connor’s favorite story, “The Artificial [N-Word].” They just laugh and laugh… There’s even a movie about what a bad idea it would be to teach this story!

So, unlike the rest of the poster, this item is not a callout of the ALA. They can’t be expected to defend stories that haven’t been formally challenged. It’s simply a victim of censorship that is worth reading and sharing!

Irreversible Damage, by Abigail Shrier

Abigail Shrier’s Irreversible Damage: The Transgender Craze Seducing Our Daughters is the exact kind of work the freedom to read was established to protect. Agree or disagree with her conclusions (or even her methodology), Shrier’s book offers sincere, researched, widely-shared views on a crucial matter of public policy and health. This goes to the heart of freedom of discussion, which breathes life into the whole liberal order.

Naturally, then, her book’s publication was met by a hysterical censorship campaign in which:

• independent booksellers and Target11 pulled her book off the shelves;

• the American Bookseller Association penned a groveling apology for daring to checks notes ship this recently published and popular book to, uh, checks notes again people who sell books??;

• a top lawyer at the gorram American Civil Liberties Union called for the book to be banned;12

• Kirkus Reviews refused to perform its standard review (as did every other major review outlet); and

• Amazon employees launched a campaign to have the book removed from their bookstore, which controls roughly 40% of all U.S. print book sales (way more of the e-book market). They failed, but the campaign likely contributed to Amazon’s still-damaging decision to deny ad placement for the book.

Agree or disagree with the book, this was full-blown McCarthyite censorship.

Dangerous by Milo Yiannopolous

To be fair, Milo’s book was cancelled for what, in my view, was a perfectly legitimate reason: he, a public figure acting in a public capacity related to his employment, knowing that it would reflect on both his employer and on his publisher, chose to say that he thought that the age of consent was “not this black and white thing” and “older men can help younger boys discover who they are.”

In fairness to Milo, he had already revealed elsewhere that he had been sexually abused by a priest as a young teenager, although he himself insisted at the time that it was not sexual abuse.

In fairness to his publisher, what the actual hell, Milo? That’s pedophilia. What, we repeat, the hell?

I’ve never been against all cancellations. I don’t think anyone is. It always comes down to a rubric involving the badness of the offense, how mainstream the viewpoint is, the sincerity of the apology, the public-ness and power of the speaker, and how closely connected the offense was with the public figure’s official duties. Bill Clinton should have been cancelled for abusing his intern and Donald Trump should have been cancelled for “grab them by the pussy,” but that random electric company worker who lost his job for making the “okay” sign to a driver (it was not a white power symbol) should not have been cancelled. There is a spectrum betwixt.13

However, Banned Books Week admits no such nuance. Banned Books Week thinks no authorial conduct should ever infringe on the “freedom to read,” and has often defended Allen Ginsberg (author of “Howl”) who was an actual honest-to-God member of NAMBLA and (unlike Milo) held these views loudly and proudly as a member of the literati for decades. (Milo recanted.) So, if you’re gonna “read banned books,” you might as well find a copy of Milo’s Dangerous!

The Adventures of Ook and Gluk, by the Captain Underpants guy:

I’ll let Wikipedia tell the tale here:

On March 25, 2021, Dav Pilkey stated on his YouTube channel that he and Scholastic had removed the book from print in response to a Change.org petition of 289 signatures by Korean-American Billy Kim, accusing the book of stereotyping harmful to Asians, specifically singling out the “[Chinese] kung fu master [Master Wong] wearing what’s purported to be a traditional-style Tang coat”, for using “stereotypical Chinese proverbs”, and for having “a storyline that has the kung fu master rescued by the non-Asian [biracial] protagonists using their kung fu skills.”

According to the video, all money that Pilkey and his wife have made from the book would be donated to “charities that provide free books, art supplies, and theater for children in underserved communities; organizations that promote diversity in children’s books and publishing; and organizations designed to stop Asian hatred.”

The decision to pull the novel from publication was criticised by Singaporean Melissa Chen of The New York Post and Reason editor-in-chief Katherine Mangu-Ward. Chen praised “Wong [a]s a prime example of a positive portrayal of an Asian character in literature, [coming] across as endearing and full of wisdom”, and refuted Kim’s derision of the novel’s Chinese proverbs as stereotypical. Mangu-Ward called attention to previous campaigns to remove Pilkey’s Captain Underpants books from publication, calling Kung-Fu Cavemen “charming, not racist”, and cited “Pilkey’s whole gag [as] the censorial impulse [being] ridiculous and kids instinctively know[ing] it should be mocked.” She called for its republication amongst a list of books banned in America in August 2022. Following the novel’s removal from the market, Bleeding Cool reported that physical copies of the novel were now selling for $160 on eBay.14

This was a hit kids book, but then it was banned. It wasn’t banned from library shelves, but a book can’t be taken off library shelves if it is never printed, therefore never put on the shelf in the first place! There are zero copies of this book in my library system (Dakota County), or in any of the other library systems I have ever lived in (Ramsey & Hennepin County). There are three copies in Washington County, and, if you live in the seven counties of the Twin Cities, population ~3 million, those are your three copies.

For comparison, Dakota County has five copies of the sexually graphic “memoir-manifesto” All Boys Aren’t Blue, plus two audiobook copies, all shelved under “Teen.”15 Blue is the headline book of Banned Books Week this year.

The Adventures of Ook and Gluk is not mentioned. As far as I can tell, Banned Books Week has never mentioned Ook and Gluk.

And To Think That I Saw It On Mulberry Street, by Dr. Seuss

I wrote about the publisher’s book ban (followed quickly by eBay’s book ban) in 2021, so I won’t repeat myself here:

(I mostly talked about copyright law, which enables book bans by keeping books out of the public domain.)

I will only add that I thought it was almost endearing when I discovered that the NAACP had put out a press release openly calling for “censorship” of this book, with “censorship” right there in the title! Well, they got what they wanted, yet I never saw this book on a Banned Books Week display.

Read Banned Books.

Many people want to “Read Banned Books” because they believe all book bans are being caused by powerful forces of censorship that want to keep important ideas out of the readers’ hands, simply because those ideas might threaten those in power.16

Is that you? If so, how much more threatening must these books be to the powerful? They’re so banned that even the people who professionally tell you to “Read Banned Books” don’t tell you about these banned books!

So you should probably put them on top of your list! And maybe share this graphic!

Honorable Mentions

I would have liked to include these on the graphic, but there was only room for nine, and some of these didn’t have available cover art.

Orson Scott Card’s Superman book, which was banned so hard it wasn’t even written, because comic book publishers chose to punish Card for holding a then-popular opinion on a then-hotly contested social issue.

Johnny the Walrus, by Matt Walsh, by logic that is no more loopy than the ALA’s.

Blood Heir, by Amélie Wen Zhao, though her cancellation had a happy ending relatively quickly

“I Sexually Identify as an Attack Helicopter,” by Isabel Fall (#ownvoices), though her cancellation didn’t

The Goosebumps series and the James Bond novels, both of which were also bowdlerized in 2023, just like Roald Dahl.

A Birthday Cake for George Washington, by Ramin Ganeshram, but its cover is the wrong shape for my graphic.

De Civitate Next Voyages: I need to do some paywalled content in the next week or so, and I think I have a Short Reviews in me. In theory, the week after that should be an If They’d Made Me Pope. Then I think I’ll finally be all out of excuses to put off Revising the Seventeenth Amendment, Part III. (I also have a half-written comment reply; you know who you are and I’m still sorry for the delay, but it’s hard to steal time between posts.)

Question 1: Given the rules of conciliar infallibility and the facts of the Council of Constance, ought the central definition of Haec sancta synodus be understood by Catholics as an infallible doctrine to be held with divine and Catholic faith? Why or why not?

I’ll start by telling you the rules, as best I can, then you be the judge.

The Catholic Church teaches that ecumenical councils1 have authority to teach infallibly.2 Catholics believe that this power to “teach as one with authority” (Mk 1:22) is a gift of the Holy Spirit, given to the Church at Pentecost, in fulfillment of Christ’s promise to St. Peter that “the gates of Hell will not prevail” against His Church. This power was soon displayed by the Council of Jerusalem in Acts 15, wherein an ecumenical council (consisting of the Apostles) infallibly resolved a serious doctrinal dispute. This infallibility ensures that the Church Christ founded hands down the true Faith, which Christ taught to his Apostles, from generation to generation, without addition, subtraction, or corruption. (At least, not indelible corruption.)

Maybe Catholics are right about this, maybe not, but they are Catholics, so they’ve developed rules about it.3 I have no formal training in this area, and I have struggled to get a handle on all this, but, as best I can work out, these are the rules:

1. A council can teach infallibly only on matters of universal faith and morals.4 It can issue disciplinary decrees, it can meditate on Scripture, it can condemn specific gangs of pirates or even anathematize named individual heretics, but all these judgments are merely human. Although they are usually correct, they are inherently fallible and subject to future revision. The Holy Spirit’s absolute protection against error applies only to judgments on universal faith and morals.

2. A council teaches infallibly only if it is “manifestly evident” that it is doing so.5 Random utterances deep in the compiled acta of a council are not infallible. The council must be clearly exercising its Apostolic authority to collectively address the Christian world with a formal conclusion. There are no “magic words” for this,6 although there are certain words (like “declare,” “define,” and “anathema”) which the Church has frequently used in the infallible-teaching context.

3. Only the infallible definition itself is infallible. Prefatory, explanatory, hortatory, and apologetic matter before, after, or even within the definition is fallible.7 For instance, a council could decree: “If X is true, then Y is true. According to the Scriptures (Acts 9:20), X is certainly true. Therefore, we declare, decree, and define that Y is true.” This guarantees that Y is true. However, this definition does not include X, and the council could be misinterpreting Acts 9:20, so X might still be false!

4. Finally, the body must be an ecumenical council, not a mere advisory synod, national council, or similar meeting. Those lesser bodies can (and do) teach errors, sometimes serious ones, sometimes emphatically. A council is ecumenical if:

   1. all Catholic bishops of the world are both welcome to attend and have a duty to attend (unless legitimately impeded, for example by ill health) and

   2. its decisions, once published, receive the consent of the Pope. The proper convoking and presiding officer at an ecumenical council is also the Pope.8 Once clearly given, papal consent is irrevocable, for the council’s definitions are, at that point, irreformable. However, papal approbation cannot turn a non-ecumenical council into an ecumenical council.9

This is still an oversimplification of a complicated set of rules of construction, but I think it’s enough to be getting on with, and we have a long way to go.

Unsettled Question #1: Papal Convocation and Presidency

While all agree that the pope is the proper convoker of ecumenical councils, is it necessary, or does papal ratification after the council cure any defects in its convocation?

If papal convocation is necessary, this commits Catholics to some hotly contested historical claims about the Council of Nicaea. The emperor, not the pope, convoked that council. Catholics (including St. Robert Bellarmine, patron saint of figuring out which councils are ecumenical) often contend that the emperor convoked Nicaea only at the pope’s request, so it still counts. However, there is no documentary evidence that this request actually happened, and considerable dispute over it. Does this count? Evidence on the ground is even thinner at Constantinople I, which was largely an Eastern council with no papal participation. Does this count?10 At Constantinople II, the pope issued a formal decree convoking the council with the emperor, but later (unsuccessfully) tried to have the decree withdrawn, so that the council was opened and held without his consent. Does this count?

Likewise, while all agree that the pope should be offered the presidency of any ecumenical council, is this strictly necessary for a council to be ecumenical?

The pope has often sent legates to preside on his behalf, and everyone agrees this counts. It is historically contested, though, whether papal representatives held the presidency at Nicaea, or were even offered it. If they weren’t, does it count? (If not, then are Catholics committed, as a matter of faith, to the historically questionable claim that the president, Ossius, was a papal representative?)

The pope certainly did not send legates to Constantinople I, but he probably could have if he’d tried. Does this count? At Constantinople II, the pope refused to send legates because he opposed the council, but the council repeatedly offered him the presidency anyway. Does this count?

The mainstream Catholic opinion is, “Yeah, probably.”

Another reasonable Catholic opinion is, “Don’t worry about it! Papal convocation and presidency are proper to an ecumenical council, but only papal ratification is necessary.” This avoids many headaches. However, it is only an opinion. The question remains open.

This will be on the exam.

Unsettled Question #2: Papal Ratification

Everyone (in Catholicism) agrees that the pope must ratify a council for it to be valid.

Sometimes, this is clear as a bell. As its very last act before dissolving, the Council of Trent issued a decree on December 4, 1563, asking for papal confirmation of its acts. The papal legates, Cardinals Morone and Simonetta (who had properly presided over the council), traveled back to Rome and shared the deets with the papal court. Then, on January 26, 1564, they formally approached Pope Pius IV in official audience to petition him to ratify the council, and he did, verbally:

Acceding to the petition made to us, by the Legates aforesaid, in the name of the oecumenical Council of Trent, touching the confirmation thereof, We, with apostolic authority, and with the advice and assent of our venerable brethren the cardinals, having previously had a mature deliberation with them, do confirm all and singular the things which have been decreed and defined in the said Council, as well under Paul III., and Julius III., of happy memory, as during the time of our pontificate; and we command that the same be received and inviolably observed by all the faithful of Christ; In the name of the Father, and of the Son, and of the Holy Ghost. Amen.

The same day, he issued a written papal bull confirming the acts of the council. God smile on Pope Pius IV, of blessed memory, for performing the ideal ratification, to which all papal ratifications should aspire.

This is not, however, the common reality.

After some councils, we simply have no documentation of an immediate papal reaction at all. Did Pope Sylvester ratify the acts of Nicaea? Obviously. Whether they presided or not, Sylvester did have papal representatives at Nicaea, they signed the acts, and we know that Rome immediately embraced and implemented all that Nicaea had taught and decreed. But, if there was a papal decree confirming Nicaea, it does not survive.

Then there was the Second Council of Constantinople. We have a lengthy ratifying document from that one, Pro Damnatione trium capitulorum,11 but it was obtained under duress. Does this count? (Yes, say Catholics.)

After the Council of Chalcedon, Pope Leo confirmed its doctrinal decrees, but famously rejected Canon 28 (a disciplinary decree regarding the preeminence of different patriarchs). Does that count? Certainly Catholics affirm that Chalcedon is an ecumenical council, but does the pope have the power to single out specific decrees in a council he recognizes as ecumenical and veto them? Can he do so on decrees touching faith and morals, or only disciplinary decrees?12 Can he veto parts of a council by mere implication? (That last question will very much be on the exam.)

Is there any kind of time limit on all this? The First Council of the Vatican was on summer break in 1870 when the Franco-Prussian War broke out and Rome was conquered by the King of Italy. The pope prorogued the council until conditions improved, but they never did. The First Vatican Council remained in suspended animation for 90 years, until Pope John XXIII finally closed the council in order to clear the decks for his forthcoming Second Council of the Vatican. Did he ratify Vatican I in the process? I honestly don’t know. I can’t find any specific document where he formally closes and ratifies it.13 Does that count?

Of course, each and every individual act of the First Vatican Council was ratified by the pope at the time, since he was directly presiding over the council. Does that count? The whole Catholic world sure acted like it did, so I’m going to presume “yes,” but this plainly widens our definition of “papal ratification”. Until now, we have only considered popes ratifying entire councils after the council is finished. This opens the possibility of popes ratifying parts of councils during the council. This could get messy. Pope Eugene IV first recognized the Council of Basel as ecumenical, then repudiated it when it taught the conciliarist heresy. Does that count?

Lumen Gentium, the currently-supreme text on this matter, says, simply:

A council is never ecumenical unless it is confirmed or at least accepted as such by the successor of Peter; and it is prerogative of the Roman Pontiff to convoke these councils, to preside over them and to confirm them.

This vague text leaves these questions open—apparently deliberately.14

Unsettled Question #3: Textual Meaning

How should we understand the text of an infallible definition, especially when we have already said that any surrounding explanatory text is fallible? Language always requires some interpretation, and legal instruments are so notoriously open to interpretation that most countries have an entire third branch of government (the judiciary) dedicated to interpreting them.

The Church itself provides some infallible guidance here, in 1870’s Dei Filius (section 4, item 3):

If anyone says that, as science progresses, at times a sense is to be given to dogmas proposed by the Church different from the one that the Church has understood and understands, let him be anathema.

Anathemas tell us what Catholics can’t believe, so I always have to invert them to tell me what Catholics must believe. This one inverts nicely:

Even as science progresses, dogmas proposed by the Church are always to be given the same sense that the Church has understood and understands.

This is one of many reasons I always look slightly askance at people who say that originalism was invented ex nihilo in 1971, or that it “only exists” in America. The Catholic Church made originalism dogma a century before Bork penned “Neutral Principles and Some First Amendment Problems”! Catholics are to interpret infallible definitions according to their original meaning!

However, this still leaves open all the usual questions that face originalists, starting with the most basic question: which original meaning?

1. The meaning intended by the original writers?

2. The meaning understood by the original ratifiers? or,

3. The meaning the words objectively held, according to the language of the day, as understood by contemporary experts in relevant fields (a.k.a. the original public meaning)?15

Cards on the table: I’m an original-public-meaning originalist in American law, not just because I think the Constitution compels this reading, but because I think it’s the only sane way to read laws in a republic.16 Non-originalism is an implicit abandonment of the principle that laws have a fixed meaning determined by legislators. Original-intent originalism runs into all sorts of difficulties that I don’t think are resolvable, at least not easily. This leaves original-public-meaning originalism.

I find some support for this in Dei Filius, which demands that we understand dogmas according to “the same sense that the Church has understood.“ Not the council’s sense, not the Pope’s, but the Church’s sense—the original public.

On the other hand, Catholic tradition has held for centuries that, at least in some cases,17 “the law must be expounded not according to its wording but according to the intent of the lawgiver and the general principles of natural justice,” which goes back to at least Aquinas: “We should take account of the motive of the lawgiver, rather than of his very words.”18 This at least suggests that we should look to original intention.19

However, when we are dealing specifically with infallible definitions proclaimed as dogma by the Roman Catholic Church, we have to ask a further question: who is the original writer, whose intentions we might examine? The intentions of the bishop or clerk or subcommittee that drafted it? The council’s overall?

But isn’t it the case that infallible definitions are guaranteed free of falsehood, not by their authors, but by the Holy Spirit? Should we then interpret these dogmas according to the intention of the Holy Spirit? How could we discern this intention, other than from the original public meaning of the text He gave us?20 So perhaps, in the special case of infallible definitions, there really is no difference between original intentions and original public meaning.

I have my leanings, I’m not shy about that, but you already know there aren’t official answers to these questions.

Those are the rules. Here are the facts.

The Council of Constance

The Council of Constance convened to resolve the apex crisis of the medieval Church: the Great Western Schism. It started when a group of French cardinals contended that the election of the pope, Urban VI, had been invalid, so they elected (anti?)pope Clement VII. Rome and France maintained then separate papacies for decades, until the West got fed up and many bishops convened a council. The Council of Pisa deposed both the French and Roman popes and elected a new (anti?)pope. However, Rome and France consistently rejected Pisa’s authority, so this actually made things worse. Now there were three papacies running in parallel, all claiming to be the true bishop of Rome!

The Catholic Church has pretty much always rejected the French line as a bunch of antipopes. However, both the Roman and Pisan lines have had their defenders over the centuries. The Church’s current position is that the Roman popes were the single true lineage and the Pisans were all antipopes, and I personally think this is correct, but there’s been no official, final pronouncement on this. (This will be on the exam.)

The Pisan Pope, John XXIII, with the support of Emperor Sigismund, summoned a general council of bishops to Constance. Many bishops throughout Catholic Christendom attended, and the council began 5 November 1414.21 This council, a general council convoked by a pope, believed itself to be an ecumenical council.

In Session Two, John XXIII publicly promised to abdicate if the council asked him to do so. A couple weeks later, John fled Constance and refused the Council’s commands to return, because he realized they might.

In Session Five, the council issued perhaps the most controversial single conciliar document in the history of Christendom, Haec sancta synodus. In relevant part, Haec sancta reads:

In the name of the Holy and indivisible Trinity; of the Father, Son, and Holy Ghost. Amen. This Holy Synod of Constance, forming a general council for the extirpation of the present schism and the union and reformation, in head and members, of the Church of God, legitimately assembled in the Holy Ghost, to the praise of Omnipotent God, in order that it may the more easily, safely, effectively and freely bring about the union and reformation of the church of God, hereby determines, decrees, ordains and declares what follows:

It first declares that this same council, legitimately assembled in the Holy Ghost, forming a general council and representing the Catholic Church militant, has its power immediately from Christ, and every one, whatever his state or position, even if it be the Papal dignity itself, is bound to obey it in all those things which pertain to the faith and the healing of the said schism, and to the general reformation of the Church of God, in head and members.

Next, it declares that any one, whatever his condition, station or rank, even if it be the Papal, who shall contumaciously refuse to obey the mandates, decrees, ordinances or instructions which have been, or shall be issued by this holy council, or by any other general council, legitimately summoned, which concern, or in any way relate to the above mentioned objects, shall, unless he repudiate his conduct, be subject to an appropriate penance and be suitably punished, having recourse, if necessary, to the other resources of the law.22

In other words, the Council of Constance declared that even the Pope was subject to the authority of an ecumenical council.

This claim spawned a decades-long debate over a doctrine that came to be known as conciliarism, which (in its full-fledged form) asserted that councils, separately from the pope, were the supreme authority in the Catholic Church, even if expressly rejected by the pope. This doctrine was eventually condemned as a heresy.23 It is certain that some of the bishops who composed Haec sancta intended to assert full-fledged conciliarism; it is possible that a majority did. Catholic historians commonly regard Haec sancta as an “openly heretical” decree endorsing full-fledged conciliarism.

In Session 8, the council condemned 45 errors attributed to John Wyclif.

In Session 12, the council declared (anti?)pope John XXIII deposed from the papacy because of his refusal to return to Constance after fleeing.

In Session 14, the council was re-convoked under the authority of the Roman Pope, Gregory XII, who had sent legates to the council. Gregory formally refused to recognize any of the previous sessions, since they had been undertaken under John XXIII’s authority, and Gregory maintained that John was an antipope. Gregory therefore required that the council be freshly convoked. Gregory’s legates were authorized to tender Gregory’s abdication from the papacy. The council promptly accepted his abdication.

In Session 15, the council condemned 58 more errors attributed to John Wycliff, then 30 errors attributed to Jan Hus.

In Sessions 23 through 37, the council repeatedly summoned the French Pope (Benedict XIII), then, when he refused, finally declared him deposed from his questionable papacy.

Some more stuff happened, but it wasn’t very important.24 PapalEncyclicals.net has a useful, albeit opinionated, summary.

In Session 41, the council spun off a papal conclave, which took three days to elect Pope Martin V. Pope Martin hailed from the powerful Colonna family, which had sided with the Pisan Popes. Indeed, Pope Martin had attended the false Council of Pisa, helped elect the first Pisan Pope, and was a loyal supporter of current Pisan Pope John XXIII. He even fled Constance with John after Session Two, before returning later on. The Roman Pope, Gregory XII, had excommunicated Martin for supporting John. (Martin did not recognize the excommunication, because he saw Gregory as an antipope.) At the time of Martin’s election, the excommunication was evidently still in force! Now, though, he became the undisputed pope, and personally presided over the remainder of the council.25

Finally, in Session 45, the council wrapped up. With the council’s consent, Pope Martin dissolved the body and sent everyone home. During the closure, the Duke of Lithuania submitted a petition requesting the pope’s explicit condemnation of a minor character named Johannes Falkenberg, even though the council had declined to issue such a condemnation. Pope Martin replied by affirming:

That all and each of the things determined, concluded, and decreed in the matter of faith by the present holy general Council of Constance, in a conciliar manner, he wished to hold and inviolably to observe, and never in any way to contravene. And these very things, thus done in conciliar manner, he approves and ratifies, and not otherwise, nor in any other way.

I have published a complete, novel Latin transcription and translation of Session 45 (using Mansi’s edition26) in a companion article, since, to the best of my knowledge, the session is not otherwise available in English. (Fun fact: this article was originally just supposed to be a preface to that translation, but it got too long.)

Soon after the Council of Constance dissolved, Pope Martin issued the papal bull Inter cunctas, which reiterated (and condemned) the 45 errors of Wycliff from Session Eight and the 30 errors of Hus from Session Fifteen.27 He specified a creed that repentant Wycliffites and Hussites must agree to in order to be readmitted to communion. That (lengthy) creed included these items:

Likewise, whether he believes, holds, and declares that every general council, including that of Constance, represents the universal Church.

Likewise, whether he believes that what the sacred Council of Constance, which represents the Catholic Church, has approved and does approve in favor of the faith and for the salvation of souls [in favorem fidei et salutem animarum] must be approved and maintained by all the faithful of Christ, and that what [the council] has condemned and does condemn to be contrary to faith and good morals, this must be believed and proclaimed by the same as considered worthy of condemnation.28

More than twenty years later, in 1439, the rump Council of Basel (which considered itself ecumenical, but wasn’t) declared that Haec sancta synodus meant a sitting pope had no power to dissolve or transfer an ongoing ecumenical council without its consent:

1. That the authority of a general council representing the universal Church is superior to the pope and to any other, as declared by the general Council of Constance and by this Basel assembly, is a truth of Catholic faith.

2. That it is a truth of Catholic faith that a pope cannot in any way, by his own authority, dissolve, transfer, or prorogue to another time or place a general council legitimately assembled and representing the universal Church, without its consent, when it has been convoked for matters already declared above or for any of them.

3. That anyone who stubbornly denies these truths is to be judged a heretic.

Then, since Pope Eugene IV had ordered the council moved from Basel to Ferrara, they declared him a heretic deposed from the papacy.

Pope Eugene responded furiously, and excommunicated all concerned:

They also twisted the sense of the Council of Constance into a perverse and impious interpretation, thereby laying the foundation for their schismatic doctrine. …O miserable and degenerate sons! O depraved and adulterous generation (Matt. 12:39)! What could be more cruel, more detestable, more horrible, more insane than this impiety? …Their aforementioned propositions—as perversely understood by them, against the genuine sense of Scripture, the Fathers, and of the Council of Constance itself—together with that pretended sentence of deprivation, we condemn, reprove, and declare to be condemned and reprobated.

I’ve included the full translation of this document (Moyses vir Dei) in the companion article, too.

Seven years after that, Pope Eugene provided the third and final notable attempted ratification of the Council of Constance, when, in 1446, he accepted the whole of the Council, with the following qualification: “…without, however, prejudice to the right, dignity, and preeminence of the Apostolic See.”29

Your Exam Question

The central definition of Haec sancta synodus (already printed above) reads:

[T]his same council, legitimately assembled in the Holy Ghost, forming a general council and representing the Catholic Church militant, has its power immediately from Christ, and every one, whatever his state or position, even if it be the Papal dignity itself, is bound to obey it in all those things which pertain to the faith

Given the rules of conciliar infallibility and the facts of the Council of Constance, ought the central definition of Haec sancta synodus be understood by Catholics as an infallible doctrine to be held with divine and Catholic faith? Why or why not?

The proctor has handed out your blue books.

You have 45 minutes. Your time starts now.

Cheatin’ Time

What kind of freak prof hands out a 3,000-word exam with 20+ footnotes? That’s sick. I can’t be expected to write this all by myself. It’s only the sixth day of class, and he spent the whole third day talking about his fetish or something. I’ll just take a quick glance over my shoulder at what the seminarian behind me is writing…

A: No, for lack of Convocation and/or Presidency

Haec sancta synodus’s definition is not infallible, because it was not the act of a valid ecumenical council.

Haec sancta was passed during the fourth session, but, as of the fourth session, the body had been convoked only under the authority of Antipope John XXIII, who had no authority to convoke an ecumenical council. Only the true Pope, Gregory XII, had the authority to do this, and he did not do so until the fourteenth session. Everything that happened at Constance prior to the fourteenth session (which was really the first true session of Constance) was a mere ultra vires pre-conciliar assembly of bishops.

Moreover, even if we allow that John XXIII might have been a true pope, he fled the council after the second session and did not return after it was reconvened. That meant there was no pope presiding, and no pope was being offered the presidency. (All popes were being asked to resign.)

Haec sancta was therefore issued without authority, notwithstanding Pope Martin V’s later ratification of the council, because—as I will argue in this essay—papal ratification alone is insufficient to validate a council. A valid pope must also convoke the council, directly or (in the case of some of the early councils) indirectly, by making a request of the emperor, or, in the alternative, a pope must at least be offered the presidency.

Defending that thesis sounds like quite the history project. What about the cute girl on my left? What’s she saying?

B: No, for lack of Ratification

No, Haec sancta synodus contains nothing that is infallible, because this act of the council was excluded from all the council’s ratifications.

In the last session of Constance, Pope Martin, presiding, ingeniously avoided ratifying Haec sancta by rejecting everything “not done in conciliar manner,” a subtle wording that implicitly excluded Haec sancta. Since the Council had not been properly convoked at the time Haec sanctra was passed, it clearly was not passed “in a conciliar manner.” (Nor were the 45 errors of John Wycliff.)

Indeed, Pope Martin’s wording was so brilliantly subtle none of the delegates appear to have noticed that Pope Martin had cleverly excised one of the most prominent documents of the Council from its final product—all the more clever of him, since he was responding off the cuff to the ambassadors of Poland on an unrelated question about John Falkenberg!

Pope Martin sneakily rescued that condemnation of Wycliff later on when he republished them, in his own name, in Inter cunctas. Wycliff was condemned on the pope’s infallible ex cathedra authority, not the council’s.

While it is true that Pope Martin also appeared to ratify Constance in Inter cunctas, the trained eye will notice that he only ratified the portions of Constance which worked “in favor of the faith and for the salvation of souls,” which should not include Haec sancta. Indeed, given the context, this “ratification” should only be understood to include the Council’s condemnations of Wycliffe and Hus.

In the balance of my essay, I will explain why we should set aside the fact that Pope Martin was a loyalist of the Pisan papacy (therefore had no personal doubts about the validity of Antipope John XXIII’s convocation), the fact that he never once raised any recorded complaint against Haec sancta during his life, and the fact that not a single other living soul at the time appears to have understood any of Pope Martin’s acts as repudiating Haec sancta. I will show that either the Holy Spirit gave Martin a sudden, dramatic, and extremely secret conversion to the pro-Roman faction upon his election, leading him to an anachronisitic legal theory about the validity of the early sessions; or that original-public-meaning originalism means it doesn’t matter what Martin intended, as long as the Holy Spirit guided his hand so that the words he actually wrote clearly exclude Haec sancta from ratification. (Which they definitely do.) I will finally explain why I am holding the papal ratification of Constance to such a high standard of textual precision, even though this standard is not normally applied to any other council’s ratification.

I know that girl is smart as a whip, way smarter than I am, but… I dunno, she sounds more like she’s trying to convince herself than the professor. How about the slick-looking French dude on my left?

C: No, for lack of Spain

Nothing at the Council of Constance was ecumenical until the thirty-fifth session, because all prior sessions were conducted without the adherence of the august Catholic nation known as Spain. (Spain refused to recognize the council for some time, due to largely political reasons.) Maybe Pope Martin later ratified some or all of those sessions, maybe he didn’t, but, without Spain there, does it even matter?

In this essay, I will explain why the participation of Spain was necessary for the validity of the Council of Constance, even though Spanish representation has never been considered necessary for any other ecumenical council, before or since—and, indeed, even though quite a few councils featured no Spaniards!

Ooooo…kay? (Was I wrong about that guy being French?)

Um, let’s just try someone else. How about that German guy?

D: No, for lack of Pope

The Great Western Schism was such a disaster that there was actually no pope capable of convoking or consenting to an ecumenical council, and so no ecumenical council was possible at the time. Everything the Council of Constance did was wheel-spinning until it entered into conclave and filled the vacancy in the papal office (or, at least, supplied its new holder with enough legible authority to convoke a council). The Council of Constance was therefore only an ecumenical council in its final three sessions. Pope Martin’s ratifications obviously apply only to those final three sessions, since not even a pope can elevate a non-ecumenical council to an ecumenical one if it lacks the basic ingredients.

Anything that “Constance” did that binds Catholics today infallibly, then, was actually done by Pope Martin after the fact, when he re-published many of the decrees of Constance under his own ex cathedra papal authority. Haec sancta synodus was not one of the decrees he republished, therefore it was never properly promulgated by an authority capable of teaching infallibly.

The rest of my essay will explain why neither Pisan Pope John XXIII nor Roman Pope Gregory XII were valid popes capable of convoking or consenting to an ecumenical council, and why post-conciliar ratification does not cure this defect.

Huh. The rest of that is in actual German. I wonder what his full argument is! Maybe it’s good!

Maybe if I just stand up and pretend to stretch for a second, I can see what that smart guy is writing four seats over. What’s his name? Walt? I like his hat.

E: No, Because Disciplinary

It is an ancient principle of state that governments are automatically supplied with whatever power is necessary to ensure their own survival. This is surely no less true in the government of God, the Church, than in any other.

Haec sancta was a response to an extreme emergency, a Western Schism that threatened to rip the Church apart with no visible path to restoration. The council fathers did not intend to decree themselves superior to the pope forever and always, and the language they used did not do that. After all, the council fathers were pro-papal! They were there to restore the papacy! Rather, the council fathers intended to decree themselves superior to dubious claimants to the papacy in the teeth of the greatest legitimacy crisis in history. Rather than formulating revolutionary new dogma, the council fathers were simply establishing their authority to review papal legitimacy, so that they could then establish a process (something a well-regarded Catholic blog, De Civitate, routinely requests even today!).

Haec sancta synodus is merely a disciplinary decree, no different from Frequens or any of the many other disciplinary decrees of ecumenical councils that are passed and later repealed. It is not “manifestly evident” that it exercises an Apostolic or infallible character, it is on a matter of ecclesiastical government unconnected to faith or morals, and, being so narrowly focused on the immediate crisis it was addressing, it is anything but universal. Its strongly-worded opening must be read in light of its (obviously merely disciplinary) second half.30

In my essay today, I will explain how to reconcile the sweeping, formulaic, definitive-sounding language of Haec sancta itself with the more restricted reading I have just suggested. I will further explain why this decree on ecclesiastical governance is not a matter of “faith and morals,” while other decrees on ecclesiastical governance (like Vatican I’s Pastor Aeternus) are a matter of faith and morals (and therefore infallible).

What about the smug, contrarian kid? He’s always wrong, but gets good grades anyway. We’ll just pass his desk briefly on the way to a “bathroom break” and take a peek…

F: Yes

Haec sancta synodus meets all the criteria for an infallible definition of an ecumenical council. It is a clear, definitive, conclusive exercise of the teaching authority of a council on a matter of faith and morals. To deny the infallible force of Haec sancta based on its language alone would likely require one to deny the infallibility of a great many other accepted definitions, such as the famous Tome of Leo.

The council that passed Haec sancta was one of the largest and most diverse gatherings of Catholic prelates of the period. Flowery but empty qualifications notwithstanding, legitimate popes ratified it not less than three times afterward, curing all possible defects regarding the council’s convocation and presidency. It means what it says: the teachings and decrees of an ecumenical council are binding on everyone, even the pope.

We could stop here, as Hans Küng did, and say that this simply means full-fledged conciliarism is true, that councils can contradict the pope, that all recent attempts to refute it (for example, Vatican I’s teachings on papal co-supremacy) have been heretical, that the Catholic Church is therefore quite possibly a false and contradictory Church, that the pope is a mere inferior officer of the Church, and that the Old Catholics are probably right. (Unsurprisingly, Hans Küng was condemned for heresy.)

However, this assumes much about what the infallible proposition defined by Haec sancta actually entails. After all, an infallible definition contains only what it contains, and nothing else. Although Haec sancta requires a pope to obey an ecumenical council, it does not change the fact that an ecumenical council is elevated to that status only by the consent of the pope, through his ratification of the council’s acts. A fair reading of Haec sancta in this light leads to this uncontroversial conclusion: the pope must obey the teachings and decrees of an ecumenical council which he himself agrees to obey.

The Council of Constance proceeded exactly as though this understanding were correct. The true pope, Gregory XII, voluntarily submitted himself to the council, offered his voluntary abdication, and voluntarily abided by the council’s decision when they took him up on it.31 Although Haec sancta was later hijacked by full-fledged conciliarists at Basel, Pope Eugene IV was quite correct in Moyes vir Dei, when he condemned the conciliarists as having “twisted the sense of the Council of Constance” into a “perverse underst[anding], against the genuine sense of… the Council of Constance.” Pope Eugene correctly insisted that Haec sancta did not set councils against popes, but only against (as Haec sancta put it) pretenders to the “papal dignity.”

There is simply nothing in Haec sancta, then, that challenges papal supremacy. Rather, Haec sancta teaches us something important and infallible about the supreme and universal jurisdiction of councils (especially in times of extreme papal crisis). The desperation of Catholic scholars to refute Haec sancta over the centuries was born partly of insecurity, prior to Lumen Gentium, about how popes could share supremacy with ecumenical councils, and partly of an ultra-ultramontanist conception of the Church that has since been deflated (by, among other things, Lumen Gentium).

The rest of my essay will be devoted to showing why the full-fledged conciliarist intentions of some of the council fathers at Constance (perhaps a majority) may be set aside as irrelevant. In the process, I will defend original-public-meaning originalism for interpreting Church definitions, showing why our sole concern with Haec sancta must be the text, the whole text, and nothing but the text.

Oh no, I spent so much time cheating I forgot to start writing an answer of my own, and now time’s almost up and—

Pencils Down! Answers, Please!

All of the answers sketched above are reasonably common answers to “Does Haec Sancta Define Infallibly?”

• A: No, for lack of Convocation and/or Presidency: This is a prominent traditionalist view. It is championed by, I am given to understand, Joseph Gill, among others, and it seems to be at least a background assumption of many other answers.

• B: No, for lack of Ratification: The idea that Pope Martin was some kind of superspy diplomat who cleverly avoided ratifying Haec sancta (while using language that sure made it sound like he was ratifying Haec sancta) is, in my view, the least convincing on this list. Imagine my embarrassment upon discovering that it is probably the most mainstream Catholic view, at least in the English-speaking world, defended rather enthusiastically by Warren H. Carroll and, evidently, Fr. Philip Hughes. Perhaps there is more to this view than I give it credit for.

• C: No, for lack of Spain: The 1913 Catholic Encyclopedia attributes this view to Fr. Louis Salembier. I am sure that, in reality, his actual argument sounds less stupid than I have made it out to be for laughs. However, if that’s so, I can’t even begin to guess at what his actual argument might be.

• D: No, for lack of Pope: I understand this to be the view of Karl Joseph von Hefele, based again on the Catholic Encyclopedia. However, when I went to read the actual work of this eminent Church historian, I could only find it in the original German (in a very pretty font) and bailed.

• E: No, Because Disciplinary: The view that Haec sancta simply wasn’t even an attempt at an infallible definition has gained enormous strength in the past thirty years, thanks to the work of its champion, Cardinal Walter Brandmüller. You may think of +Brandmüller as a prominent conservative, one of the five “dubia cardinals” and a public critic of Pope Francis. However, the principal concern of his life has been the academic history of ecumenical councils, specifically the Council of Constance. His two-volume history of the council, whose first volume was published in the early 1990s, was considered a major breakthrough, masterfully drawing together numerous new textual sources unearthed in the past century—many of them discovered by +Brandmüller himself. Unfortunately, this work, too, is entirely in German, so I could only paraphrase what I was able to glean from second-hand references and short book reviews. I suspect his full argument has more force than I realize.

• F: Yes, Haec sancta’s Definition is Infallible: There are two flavors of this view (which is why that answer was so long).

  • F1: Yes, and Catholicism is Therefore Built on Lies: The view that Haec sancta is infallible and contradicts other Church teaching is taken by many prominent non-Catholics, for obvious reasons: it would be difficult to remain Catholic while believing in a self-contradictory Church, and it’s a relatively easy argument to make if you’re an apologist for another religion who wants to disprove Catholicism.

  • F2: Yes, but There’s No Conflict There So Please Be Chill: The view that Haec sancta is infallible and does not contradict other Church teaching is known to the world (Fr. Patrick J. Burns, S.J., mentions it approvingly in a 1974 article32), but I am aware of no especially prominent defenders. However, for what little it is worth against so many eminent scholars, this is also my view of Haec sancta. I think Haec sancta’s definition is infallible, but that, correctly understood, it poses no threat to the rest of the edifice of Catholic teaching.

Some of these positions may strengthen or weaken over time as the ever-receding frontier of scholarship presses forward. We’ve seen that in just the past thirty years, with Cardinal Brandmüller’s revival of Option E! Someday, dogmatic theologians and Church historians may even arrive at a settled consensus. There is certainly nothing resembling a consensus today. The mainstream Catholic view is that Haec sancta’s definition is fallible (indeed, that it is false!), but, as we’ve seen, the reasoning for this view is completely fractured. As far as I can tell, no single explanation of Haec sancta has anything like majority support.

However, it is likely that we will be able to definitively rule out at least some of these answers over the next several centuries. This will be accomplished the way the Catholic Church usually clarifies more of its own unwritten constitution: through constitutional crisis, disaster, and slow recovery.

Nonetheless, I deem it unlikely that we will ever get an absolutely definitive answer from the Church about the specific legal reasons why Haec sancta synodus’s definition is or is not infallible. The Church often reflects upon, and further expounds upon, the contents of her teachings. (She has indeed been magnificently clear since Constance that full-fledged conciliarism is definitely false and, indeed, heretical.) But the Church rarely offers definitive, retrospective judgments of specific documents that happen to contain her teachings.

Which means this exam question is probably going to be a pretty good one until the Second Coming.

Then we can finally ask the proctor.

UPDATE 2 October: Turns out, Hans Küng was not excommunicated, as I originally wrote. He was investigated for heresy and eventually stripped of his license to teach Catholic theology because of it, which led to a widespread belief that he had been excommunicated, but he accepted the process, thereby avoiding the ultimate sanction. My mistake! I have changed “excommunicated” to “condemned for heresy.”

UPDATE 4 October: In the comments, has very kindly applied his German and translated some key passages of Hefele, as well as providing a summary of some of +Brandmüller’s early work! I strongly recommend his comments for this additional source material: Translations of Hefele, and Summary of +Brandmüller.