Stanford University – dwkcommentaries

The Need To End Minority Rule in U.S.

Harvard professors of government, Steven Levitsky and Daniel Ziblatt, make a convincing case that the structure of the U.S. government has permitted minority rule in the U.S. and they propose ways to change that structure to reduce the enabling of such minority rule.[1] We will examine their arguments about structure and reform. Then a couple of other ways to change one part of that structure—the Electoral College–will be proposed by this blog followed by looking at another critique of the current U.S. government structure provided by Larry Diamond of the Hoover Institute at Stanford University.

Existing Structure Enabling Minority Rule

“Democracy is supposed to be a game of numbers: The party with the most votes wins. In our political system, however, the majority does not govern. Constitutional design and recent political geographic trends — where Democrats and Republicans live — have unintentionally conspired to produce what is effectively becoming minority rule.”

“Our Constitution was designed to favor small (or low-population) states. Small states were given representation equal to that of big states in the Senate and an advantage in the Electoral College, as we are seeing in this year’s presidential election. What began as a minor small-state advantage evolved, over time, into a vast overrepresentation of rural states. For most of our history, this rural bias did not tilt the partisan playing field much because both major parties maintained huge urban and rural wings.”

“Today, however, American parties are starkly divided along urban-rural lines: Democrats are concentrated in big metropolitan centers, whereas Republicans are increasingly based in sparsely populated territories. This gives the Republicans an advantage in the Electoral College, the Senate and — because the president selects Supreme Court nominees and the Senate approves them — the Supreme Court.”

Moreover, “recent U.S. election results fly in the face of majority rule. Republicans have won the popular vote for president only once in the last 20 years and yet have controlled the presidency for 12 of those 20 years. Democrats easily won more overall votes for the U.S. Senate in 2016 and 2018, and yet the Republicans hold 53 of 100 seats. The 45 Democratic and two independent senators who caucus with them represent more people than the 53 Republicans.”

“This is minority rule.”

“The problem is exacerbated by Republican efforts to dampen turnout among younger, lower-income and minority voters. Republican state governments have purged voter rolls and closed polling places on college campuses and in predominantly African-American neighborhoods, and since 2010, a dozen Republican-led states have passed laws making it more difficult to register or vote.”

Levitsky & Ziblatt’s Proposed Reforms

Eliminate the electoral college by constitutional amendment. This is not easy. Under Article V of the Constitution, the Congress shall propose amendments “whenever two-thirds of both Houses shall deem it necessary [Senate (2/3 x 50 = 33.3) and House (2/3 x 435 = 290). Or under Article V, the Congress shall call a Convention for proposing amendments “whenever . . . two-thirds of the Legislatures of the . . .States [currently 2/3 x 50 = 33.3] apply for such a convention). I agree.

Eliminate the filibuster, which has meant that “meaningful legislation now effectively requires 60 votes, which amounts to a permanent minority veto.”[2 ] This would require a Senate vote to change its rules. Under the current Senate Rules, I believe that would require a vote of at least 60 senators, but whenever a new congress convenes as it will do in January 2021, I believe it may do so by majority vote. (Please advise by comments to this post if these beliefs about Senate Rules are wrong.).) I agree.

Offer statehood to Puerto Rico and the District of Colombia, “which would provide full and equal representation to nearly four million Americans who are currently disenfranchised.” I agree.

Defend and expand “the right to vote. “HR-1 and HR-4, a package of reforms approved by the House of Representatives in 2019 but blocked by the Senate, is a good start. HR-1 would establish nationwide automatic and same-day registration, expand early and absentee voting, prohibit flawed purges that remove eligible voters from the rolls, require independent redistricting commissions to draw congressional maps, and restore voting rights to convicted felons who have served their time. HR-4 would fully restore the 1965 Voting Rights Act, which was gutted by the Supreme Court’s Shelby County vs. Holder ruling in 2013.” I agree.

Other Suggestions Regarding the Electoral College

There are at least two other methods of changing the anti-democratic nature of the current Electoral College that, at least in part, would not require constitutional amendment.

First. Peter Diamond, professor emeritus at M.I.T. and a 2010 Nobel laureate in economics, has suggested a constitutional amendment that would require each state to divide its electoral vote between the two leading candidates within the state in accordance with the popular vote. For example, a state with an even split in the popular vote and 10 electoral votes would allocate 5 such votes to each candidate.[3] Yes, such a change would require such an amendment since it would require all states to do it this way.

Or each state independently could decide to do just that, without a constitutional amendment, since Article II, Section 1 of the Constitution provides, “Each State shall appoint, in such Manner as the Legislature thereof may direct,” the Electors to which it is entitled. (Emphasis added.) It, however, seems unlikely that all 50 states independently would decide to do this as a matter of each state’s laws.

Another way of changing the anti-democratic nature of the Electoral College is approval by additional states of the existing National Popular Vote Interstate Compact, which requires signatory states to award all their electoral votes to whichever presidential candidate wins the overall popular vote in the 50 states and the District of Columbia once the Compact is signed by states with at least 270 electoral college votes. As of October 2020 this compact had been adopted by 15 states and the District of Columbia, which have a total of 196 electoral college votes although one of the states (Colorado) has suspended its approval of the Compact.[4]

This proposal raises a number of legal issues. Some legal observers believe states have plenary power to appoint electors as prescribed by the Compact; others believe that the Compact will require congressional consent under the Constitution’s Compact Clause or that the presidential election process cannot be altered except by a constitutional amendment.

Another Challenging Critique of U.S. Government

Another challenging and surprising critique of the current governmental problems in the U.S. has been provided by Larry Diamond, a senior fellow at the Hoover Institution and at Stanford University’s Freeman Spogli Institute for International Studies.[5]

According to Mr. Diamond, “Today, we are far closer to a breakdown than most democracy experts, myself included, would have dared anticipate just a few years ago. Even if we are spared the worst, it is long past time to renew the mechanisms of our democracy, learn from other democracies around the world and again make our republic a shining city on a hill.”

Moreover, “The very age of American democracy is part of the problem. The United States was the first country to become a democracy, emerging over a vast, dispersed and diverse set of colonies that feared the prospect of the ‘tyranny of the majority.’ Hence, our constitutional system lacks some immunities against an electoral debacle that are common in newer democracies.”

Today, he asserts, “The American [election] system is a mishmash of state and local authorities. Most are staffed by dedicated professionals, but state legislatures and elected secretaries of state can introduce partisanship, casting doubt on its impartiality. No other advanced democracy falls so short of contemporary democratic standards of fairness, neutrality and rationality in its system of administering national elections.”

In contrast, “even though Mexico is a federal system like the United States, it has a strong, politically independent National Electoral Institute that administers its federal elections. The Election Commission of India has even more far-reaching and constitutionally protected authority to administer elections across that enormous country. Elections thus remain a crucial pillar of Indian democracy, even as the country’s populist prime minister, Narendra Modi, assaults press freedom, civil society and the rule of law. Other newer democracies, from South Africa to Taiwan, have strong national systems of election administration staffed and led by nonpartisan professionals.”

In addition, “more recent democratic countries have adopted constitutional provisions to strengthen checks and balances. Like many newer democracies, Latvia has established a strong independent anti-corruption bureau, which has investigative, preventive and educational functions and a substantial budget and staff. It even oversees political and campaign finance. South Africa has the independent Office of the Public Protector to perform a similar role.”

In contrast, the U.S. “has no comparable standing authority to investigate national-level corruption, and Congress largely investigates and punishes itself.”

On another issue, newer democracies have taken “measures to depoliticize the constitutional court. No other democracy gives life tenure to such a powerful position as constitutional court justice. They either face term limits (12 years in Germany and South Africa; eight in Taiwan) or age limits (70 years in Australia, Israel and South Korea; 75 in Canada), or both. Germany depoliticizes nominations to its constitutional court by requiring broad parliamentary consensus. In other democracies, a broader committee nominates Supreme Court justices. In Israel this involves not just the executive branch but the parliament, some of the existing justices and the bar association.”

In contrast, the U.S. “lacks national checks on executive corruption and national guarantees of electoral integrity that have become routine in other democracies around the world. And nominations to our Supreme Court have become far more politicized than in many peer democracies.”

Conclusion

A proposal for changing the undemocratic structure of the U.S. Senate will be discussed in a future post.

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[1] Levitsky & Ziblatt, End Minority Rule, N.Y. Times (Oct. 23, 2020). Levitsky and Ziblatt also are co-authors of How Democracies Die, which was reviewed in the New York Times: Szalai, Will Democracy Survive Trump? Two New Books Aren’t So Sure, N.Y. Times Book Review (Jan 10, 2018).

[2] This blog has published posts that discuss the history of the filibuster rule, including modest reforms of the rule in 2013, and recent unsuccessful litigation challenging the constitutionality of the filibuster.

[3] Diamond, Letter to the Editor: Let States Split the Electoral College Votes, N.Y. Times (Oct. 29, 2020).

[4] National Popular Vote, Inc., National Popular Vote!; National Popular Vote Interstate Compact, Wikipedia.

[5] Diamond, I’m a Democracy Expert. I Never Thought We’d Be So Close to a Breakdown, N.Y. Times (Nov. 1, 2020). Diamond is the author, most recently, of “Ill Winds: Saving Democracy From Russian Rage, Chinese Ambition, and American Complacency,“ Penguin Random House, 2019, 2020).

Pandemic Journal (# 33): More Thoughts on the New Normal

Victor Davis Hanson, the Martin and Lile Anderson Senior Fellow at the Hoover Institution at Stanford University and an avowed Trump supporter, [1] has commented on whether changes we already are seeing in the U.S. reaction to the COVVID-19 Pandemic will be part of the new normal after we hopefully survive that pandemic. First, we will look at Hanson’s commentary, and then examine a Minneapolis perspective.

Hanson’s Commentary[2]

Initially Hanson notes, “Rents, home prices and office occupancy rates in major cities, especially on the two coasts, are dropping fast. Techies and young professionals have discovered that they can work from home without paying sky-high housing costs in order to be close to the office.”

Moreover, “Those more fortunate wonder why they should get bogged down with commutes and urban traffic — or navigate city sidewalks amid homelessness, crime, racial tensions and urban unrest — when they can make as much money while staying distant in quieter landscapes. Some react by moving to quieter, low-tax states such as Idaho, Tennessee or Utah. Others flee New York City or the Bay Area/Silicon Valley corridor to upstate New York or California’s Central Valley. Who would have ever believed that housing prices in picturesque San Francisco would be falling while housing prices in pedestrian Sacramento and Fresno are soaring?”

“Worries about COVID-19 in high-density cities, and unreliable city services add to the unhappiness. Residents want less dependence on mass transit and elevator living. Constant human contact is seen more as risky than desirous.” In addition, “gun sales are at record highs. When some cities take steps to defund police and some soften bail laws, citizens quietly go to the local gun store and stock up on ammunition. Many of the people who have never before owned firearms are no longer clamoring for gun control. A ‘man’s home’ is now becoming his armed castle.”

“As a general rule, any business or activity that does not bother, judge or lecture Americans and instead allows them to work or relax in peace is preferred. That may explain why Zoom and Skype use is soaring while TV ratings for the woke NBA and NFL are down.”

“Why are Amazon and Walmart booming while smaller businesses are going broke? Largely because home delivery better serves those who are barricaded at home, terrified both of the virus and government reaction to it. Family businesses [on the other hand] are not vertically integrated. They have few cash reserves and no special insider exemptions from government officials. How ironic that in our quest to become safe and in control of our own destinies, we empower the anonymity of huge conglomerates and erode the viability of reliable, service-friendly, mom-and-pop stores.”

“For the first time in their careers, many teachers and professors are careful not to go off-topic and rant to their high school and college students. Their video streams are not only seen by captive classroom audiences but occasionally peeked in on by the parents and taxpayers who pay their salaries.”

“This is the first autumn in memory that a huge percentage of college students are staying home. And no one is sure of the ensuing consequences. Will students revolt over borrowing money simply to watch lectures on their basement computers? Will they be less likely to vote in November when they are isolated at home, rather than congregating on campus near polling places and subject to constant peer pressures to vote — and to do so in predictable ways?”

“With college revenues dropping, will ambitious promises to hire more diversity administrators, build more self-segregated racial theme houses and increase campus social services be seen as just more costly overhead that shorts classroom teaching?”

“During the pandemic, government has become more intrusive and yet seemingly more impotent and incompetent. Pick a month and some government official issues yet more contradictory orders on mask wearing, social distancing and lockdowns — all to be soon reversed. Taxes stayed high and yet urban services got worse. Increasingly, American city dwellers don’t always count on the power going on when they flip the switch, or the bus or train always showing up, or the police always answering 911 calls.”

Hanson concludes, “We still do not know the full consequences of these radical changes in American life, especially whether they will continue after the COVID-19 virus abates and quarantines end. The cultural currents are often contradictory. They defy easy political analysis and seem at times counterintuitive.”

“But there is one historical constant. When institutions and politicians cannot accommodate radically changed circumstances, people will no longer value institutions and politicians. In their place, citizens will seek to ensure their own livelihoods, leisure and safety in ways that are more reliable and affordable — with their circumstances in their own hands rather than in those of distant others.”

“And their adjustments won’t always be calm or polite.”

Comments

I agree with Hanson that “We still do not know the full consequences of these radical changes in American life, especially whether they will continue after the COVID-19 virus abates and quarantines end.”

Here is a perspective on this issue from downtown Minneapolis, which is seeing positive developments despite current difficulties. First, the business news. Then, a look at residential real estate.

Local Business Developments[3]

Our local newspaper, the StarTribune, reports, “Creating that feeling of safety is job one for Minnesota employers hoping to woo back thousands of virus-leery staffers after months of working from home. It’s been slow going. To date only one in 10 workers in Minneapolis and St. Paul office towers have returned to the office hub. Most businesses expect more to follow sometime next year.”

One of the major downtown employers, Target Corporation’s headquarters, is essentially closed with virtually all of its personnel working remotely and currently not scheduled to return to their offices until next June.

Another downtown employer is the headquarters for Delta Dental of Minnesota, one of the largest providers of dental benefits in the Upper Midwest, serving more than 8,800 Minnesota- and North Dakota-based purchasing groups and 4.1 million members. It recently completed a remodeling of its Minneapolis offices: installation of an automated temperature and face-scanning station that reminds . . . [everyone] to ‘wear a mask,’ . . . portable air filters, . . . automatic doors that open with the wave of an ID badge or hand, and . . . 180 workstations encased in 6-foot-tall plexiglass.” Now there are only three employees working on one of its floors.” https://www.deltadentalmn.org/about-us

“Commercial tenants inside [downtown Minneapolis] office venues such as the IDS Center, City Center, . . . Capella Tower and the SPS Tower. . .— each home to more than 2,000 workers — are laboring to keep people distanced from one another in elevators, cubicles and conference rooms and adopting motion sensors and software so workers can keep germs to themselves and stagger their attendance.”

When the pandemic hit earlier this year, Buhl Investors, was in the process of “converting a former 1883 railroad warehouse and soap factory” in the downtown (renamed Switch House). To respond to enhanced concerns over virus transmission it installed a ”needlepoint bipolar ionization system,” which produces “electrically charges ions in the air that cling to viruses, allergens, mold and other particles, rendering them inert.”

The 10-story Nordic building, also downtown, installed a different Covid-19 inspired technology. This will allow the Chicago-based technology consulting firm, West Monroe, to move its 120 Minneapolis employees into its 42,000 square-feet second and third floor offices with 40 phone and meeting rooms.

Other positive news for downtown Minneapolis are the recent announcements by Deluxe Corp., which has expanded its business to include more than its initial check-printing, has decided to move its headquarters to downtown Minneapolis and by Principal Financial’s decision to lease 45,500 square feet of space in a downtown tower.

The most significant and flashy downtown development is the completion of the construction of the $125 million project for the headquarters of Thrivent Corporation, a nonprofit financial services organization (formerly known as Lutheran Brotherhood) with more than $16 billion in assets under management. With 264,000 square feet of open work spaces in a “new, airy , eight-story glass-and-stone building,” it features open work-spaces, sprawling breakrooms, credit union, library, chapel, art gallery (with works from the 13^th century to the modern day), coffee shop, gym and underground parking. I look forward to walking around this new building.

John Breitinger of Cushman & Wakefield’s Minneapolis Real Estate Development Advisory practice is in charge of selling Thrivent’s new building with a 20-year leaseback as a means for Thrivent to recoup its investment in constructing this new building and redeploying the capital to grow and serve more clients. According to Breitinger, “Downtown Minneapolis is still seen as a safe bet by institutional real estate investors, given the diversity of our [institutions] and the quality of our workforce.”

These “efforts suggest that reports of the death of the American office may be premature. Many businesses ‘had this notion that we can do [remote work] forever,’ said Jim Montez, Minnesota leasing vice president at Transwestern. ‘But increasingly, what I’m hearing from business leaders is ‘We can’t do that forever because I am losing the bond that I have with my team. I am losing the culture [and] the brand identity of my enterprise. To maintain that, we need our people back together.’ ”

Local Residential Real Estate Developments[4]

Jim Buchta of the StarTribune, starts, “As in many U.S. metro areas, the suburbs of the Twin Cities have enjoyed surging interest from home buyers as the global pandemic has upended how and where people work. Amid rising crime and lingering unease following spring riots, many suburban buyers have relocated from the urban core of Minneapolis and St. Paul, where the number of homes for sale has swelled.”

But “this doesn’t mean a new urban exodus is underway. Also on the rise in both of those cities: home sales, driven in part by record low mortgage rates that have enticed entry level buyers despite a grim economy. ‘If there is an exodus’ of buyers exiting urban neighborhoods, says sales agent Pat Paulson, ‘there’s an inflow as well.’

“In Minneapolis, there’s been an 11% increase in listings through the first nine months of this year, buoyed in part by a recent rise in condos for sale. Pending sales, or signed purchase agreements, are also up 3% . . . . In the suburbs, where listings are off 2%, pending sales have increased 7%. In both areas, houses are selling at a record clip and median prices are at an all-time high.”

Conclusion

As a Minneapolis downtown citizen and resident. I hope that these positive developments will continue.

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[1] Victor Davis Hanson, Hoover Institution; Victor Davis Hanson Private Papers, Hoover Institution.

[2] Hanson, Will changes to American life after pandemic become permanent, Washington Times (Oct. 21, 2020); Hanson, Let’s count the ways 2020 will change our lives, StarTribune (Oct. 26, 2020).

[3] DePass, Workers return warily to the office, as employers embrace slew of safety measures, StarTribune (Oct. 24, 2020); DePass, All Thrivent’s new Minneapolis headquarters needs now is employees, StarTribune (Oct. 26, 2020); Kennedy, Deluxe moving its headquarters from Shoreview to downtown Minneapolis, StarTribune (Sept. 14, 2020); DePass, Safety issues just add to uncertainty facing Minneapolis commercial real estate, StarTribune (Oct. 4, 2020).

[4] Buchta, Minneapolis, St. Paul housing exodus more myth than reality, StarTribune (Oct. 24, 2020).

Questioning Originalists and Textualists’ Interpretations of the U.S. Constitution

According to the Associated Press, “Originalism is a term coined in the 1980s to describe a judicial philosophy focusing on the text of the Constitution and the Founding Fathers’ intentions in resolving legal disputes.” [1]

This was a subject of the testimony of Judge Amy Coney Barrett at her recent Senate hearing about the confirmation of her appointment to the U.S. Supreme Court. She “expounded at length on the tenets of textualism and originalism, approaches made popular by Justice Scalia that privilege plain reading of legal texts and seek to minimize a judge’s own interpretations of statute or the Constitution.” Originalism, she said, “means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it [in 1787-88]. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my policy views into it.”[2]

Although I did not follow that hearing in detail and although I am not a scholar of that philosophy, several commentaries have suggested important qualifications to such a philosophy. Here is a summary of two of those commentaries.

Professor Jack Rakove[3]

One of those commentaries was by Jack Rakove, the William Robertson Coe professor of history and American studies and a professor of political science emeritus at Stanford University and the author of “Original Meanings: Politics and Ideas in the Making of the Constitution,” which received the 1997 Pulitzer Prize in history.

Rakove starts his recent commentary by noting, “debates about originalism and how to perform it have been roiling the legal academy for several decades. Scores and scores of scholarly articles on the subject pour in annually from university law reviews; another baker’s dozen books also address it. And there is no simple way to say how we know what the phrases of the Constitution originally meant.” (Emphasis added.)

Moreover, Rakove says, “The framers never worried about its future judicial interpretation, nor would they have thought of themselves as ‘originalists.’”

For historians, “How can we determine what the Constitution truly meant except by examining why its clauses were proposed and how they were supported or criticized? The Constitution and its amendments were products of political debates; reconstructing those debates is how one would decipher its ‘original meaning.’” (Emphasis added.)

Lawyers and presumably judges, on the other hand, “assume the words the framers used had settled meanings and that a conscientious reader — an informed public official, a learned jurist or just a responsible citizen — can understand those meanings without knowing anything about the debates that produced the text.”

The above approach by lawyers and judges, however, ignores the fact “that the founding era was a period of intense conceptual change. Some of the key words and terms in our constitutional vocabulary were subject to pounding controversy and reconsideration. One has to engage these debates to understand how Americans were thinking about these issues at the time. For today’s originalists, that complexity is part of the problem. The records of history are often messy, not neat; speakers argue past each other or engage in rhetorical excess; their fears are dated, their expectations of worst consequences exaggerated.”

“Rather than accept these aspects of the historical record, today’s originalists prefer to regard the Constitution as a purely legal text, subject to ordinary rules of construction. Yet the linguistic sources they rely on will not provide the answers they seek. [For example, there “is no adequate dictionary definition of ‘the executive power’ that Article II vests in the president. [For another example, understanding] what the ‘establishment of religion’ invoked in the First Amendment meant to its framers requires examining the complex ways in which the states had supported the existing denominations of a very Protestant America. As Thomas Jefferson explained in his ‘Notes on the State of Virginia,’ the very word ‘constitution’ had multiple meanings that were still evolving precisely because Americans were trying to figure out how to make written constitutions — their greatest innovation — the supreme law of the land.”

Rakove says the “best-known example of ‘public meaning’ originalism, Justice Antonin Scalia’s opinion in the major Second Amendment case D.C. v. Heller, is . . . a travesty of historical unreason. Here, the court narrowly held that an individual right of self-defense within one’s domicile was constitutionally protected. Far from being a decision logically derived from the original intentions behind the Second Amendment, Scalia’s opinion in Heller is, ironically, a great tribute to the idea of a ‘living Constitution,’ one whose meaning evolves over time — in this case, recognizing how attached Americans had become to the use of firearms.”

Indeed, although there were “a handful of references [alluding to] an individual right to arms” in the debates surrounding the Second Amendment, “that was manifestly not the issue in dispute. The debate was about the militia, a state-governed institution whose future status was problematic because the Constitution gave Congress broad authority to oversee its ‘organizing, arming, and disciplining.’ No one then would have read the amendment to constrain the ‘internal police’ powers of the states, meaning their broad authority to secure public health and safety.”

As a result, “the practice [of originalism] does not provide the constraints on judicial rulings that its advocates claim.”

Rakove’s earlier and somewhat longer article on this same subject in the Fordham Law Review concludes with the following comment: In “the realm of politics and constitutionalism more generally, events continued to prove disruptive of linguistic stability. Critical terms, like constitution or executive power or establishment of religion or sovereignty, came under sustained pressure, not least because of the inventiveness of American revolutionary politics [in the late 18^th century]. Anyone who thinks he [or she] can establish conditions of linguistic fixation without taking that turbulent set of events into account is pursuing a fool’s errand.” (Emphasis added.) [4]

Jamelle Bouie[5]

The other recent commentary came from Jamelle Bouie, a New York Times columnist and a political analyst for CBS News, who cites the above criticism of originalism by Rakove and by “Jonathan Gienapp, a historian of the early American republic at Stanford, [who] charges originalists with building a framework ‘such that no amount of historical empiricism can ever challenge it,’ in which neither ‘the Framers’ thoughts or agendas or the broader political, social, or intellectual contexts of the late eighteenth century’ have any bearing on the so-called original public meaning of the Constitution.”

More importantly, Bouie contends that the Civil War “shattered the constitutional order” and that the “Americans who drafted, fought for and ratified the Thirteenth, Fourteenth and Fifteenth Amendments did nothing less than rewrite the Constitution with an eye toward a more free and equal country.” As historian Eric Foner contends, these amendments were a “second founding” establishing a “biracial democracy” as opposed to the “white republic” established by the original Constitution.[6] Indeed, Bouie says, the 13^th amendment in addition to banning slavery provided, “Congress shall have the power to enforce this article by appropriate legislation” or [in the words of the Chicago Tribune at the time] seemingly limitless authority to “prevent actions by states, localities, businesses, and private individuals that sought to maintain or restore slavery.” Similarly, the 14^th and 15^th amendments expanded federal power to defend individual and voting rights.

“To take the Second Founding seriously is to reject a vision that binds us to the Constitution as it was in 1787. It is also to embrace a broader vision of the ‘framing’ of American democracy, one that looks to the reconstruction of the country after its near-destruction [in the Civil War] as much as to its birth and founding.”

Conclusion

I solicit comments identifying any questening of Judge Barrett on these issues and her responses.

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[1] Assoc. Press, A.P. Explains: Originalism: Barrett’s legal philosophy, Wash. Post (Oct. 13, 2020)

[2] Fandos, Barrett, Declining to Detail Legal Views, Says She will Not Be ‘a Pawn’ of Trump, N.Y. Times (Oct. 13, 2020).

[3] Rakove. The framers of the Constitution didn’t worry about ‘originalism,’ Wash. Post (Oct. 16, 2020).

[4] Rakove, Tone Deaf to the Past: More Qualms About Public Meaning Originalism, 84 Fordham L. Rev. 969 (2015). Presumably even more grounds for skepticism about originalism can be found in Rakove’s book on the subject: Original Meanings: Politics and Ideas in the Making of the Constitution,”

[5] Bouie, Which Constitution Is Amy Coney Barrett Talking About?, N.Y. Times (Oct. 16, 2020)

[6] Foner, The Second Founding: How the Civil War and Reconstructrion Remade the Constitution (W.W. Norton & Co. 2019); Caplan: What Reconstruction-Era Laws Can Teach Our Democracy, N.Y. Times Book Review (Sept. 18, 2019)(review of Roner book).

U.S. Commission on Unalienable Rights’ Report

On July 7, 2019, the U.S. State Department launched its Commission on Unalienable Rights to conduct ”an informed review of the role of human rights in American foreign policy.” This study was to focus on “human rights grounded in our nation’s founding principles and the principles of the 1948 [United Nations] Universal Declaration of Human Rights.” The next day Secretary of State Michael Pompeo announced that the group’s chair would be Mary Ann Glendon, the Learned Hand Professor of Law at Harvard Law School, an expert on human rights, comparative law and political theory and former U.S. Ambassador to the Holy See, who would be aided by nine other eminent members.[1]

Over the next year the Commission held six public meetings with these ten distinguished speakers: (1) Michael W. McConnell, a Stanford University law professor and former federal appellate judge; (2) Wilfred M. McClay, a humanities professor at the University of Tennessee; (3) Cass Sunstein, a professor at Harvard Law School; (4) Orlando Patterson, a Professor of Sociology at Harvard University; (5) Michael Abramowitz, the director of the Committee on Conscience at the U.S. Holocaust Memorial Museum; (6) Miles Yu, a Chinese-American and principal China policy and planning advisor to Secretary Pompeo; (7) Kenneth Roth, Executive Director of Human Rights Watch; (8) Diane Orentlicher, Professor of International Law at American University; (9) Martha Minow, Harvard Law School professor and expert in human rights and advocacy for members of racial and religious minorities and for women, children, and persons with disabilities; and (10) Thor Halverssen, a Venezuelan-Norwegian businessman and human rights activist.[2]

On July 16, 2020, the Commission issued its 60-page report, which is subject to public comment through July 30 and which will be reviewed in this post. [3] Subsequent posts will examine Secretary Pompeo’s personal endorsement of that report and his conversation about the report with Chair Glendon as well as reactions from others outside the Commission.

The Report: Unalienable and Positive Rights

“The 17th century British subjects who settled, and built thriving communities along, the eastern seaboard of what they regarded as a new world brought with them a variety of traditions. . . . Among the traditions that formed the American spirit, three stand out. Protestant Christianity, widely practiced by the citizenry at the time, was infused with the beautiful Biblical teachings that every human being is imbued with dignity and bears responsibilities toward fellow human beings, because each is made in the image of God. The civic republican ideal, rooted in classical Rome, stressed that freedom and equality under law depend on an ethical citizenry that embraces the obligations of self-government. And classical liberalism put at the front and center of politics the moral premise that human beings are by nature free and equal, which strengthened the political conviction that legitimate government derives from the consent of the governed.”

Each of these “distinctive traditions that nourished the American spirit contributed to the core conviction that government’s primary responsibility was to secure unalienable rights — that is, rights inherent in all persons. The Declaration of Independence proclaims this core conviction:” ‘that all men are created equal, that they are endowed by their Creator, with certain unalienable rights, that among there are Life, :liberty, and the pursuit of happiness.”

“To say that a right, as the founders understood it, is unalienable is to signify that it is inseparable from our humanity, and thereby to distinguish it from other sorts of rights. The most fundamental distinction is between unalienable rights — sometimes referred to as natural rights in the founding era and today commonly called human rights — and positive rights. Unalienable rights are universal and nontransferable. They are pre-political in the sense that they are not created by persons or society but rather set standards for politics. They owe their existence not to the determinations of authorities or to the practices of different traditions but to the fundamental features of our humanity. . . . {S]uch rights are essential to the dignity and capacity for freedom that are woven into human nature.”

“In contrast, positive rights are created by, and can only exist in, civil society. Positive rights owe their existence to custom, tradition, and to positive law, which is the law created by human beings. Because custom, tradition, and positive law vary from country to country, so too do positive rights. In the same country, positive rights may evolve over centuries, may be legislated at a distinct moment, and may be revised or repealed.”

“To say that positive rights are not universal, however, is not to deny their importance, and to say that they are distinct from unalienable rights is not to deny that the two can be closely connected in political affairs. Unalienable rights provide a standard by which positive rights and positive law can be judged, while positive rights and positive law make the promise of unalienable rights concrete by giving expression to and instantiating unalienable rights.”

All of the above, in this blogger’s judgment, is eminently reasonable.

The Report: The Foremost Unalienable Rights

The Report, however, in this blogger’s opinion, is on shakier ground when it goes on to say, “Foremost among the unalienable rights that government is established to secure, from the founders’ point of view, are property rights and religious liberty. A political society that destroys the possibility of either loses its legitimacy.”

“For the founders,” the Report goes on to say, “property refers not only to physical goods and the fruit of one’s labor but also encompasses life, liberty, and the pursuit of happiness. They assumed, following philosopher John Locke, that the protection of property rights benefits all by increasing the incentive for producing goods and delivering services desired by others.’

‘The benefits of property rights, though, are not only pecuniary. Protection of property rights is also central to the effective exercise of positive rights and to the pursuit of happiness in family, community, and worship. Without the ability to maintain control over one’s labor, goods, land, home, and other material possessions, one can neither enjoy individual rights nor can society build a common life. Moreover, the choices we make about what and how to produce, exchange, distribute, and consume can be tightly bound up with the kinds of human beings we wish to become. Not least, the right of private property sustains a sphere generally off limits to government, a sphere in which individuals, their families, and the communities they form can pursue happiness in peace and prosperity.”

“The importance that the founders attached to private property only compounds the affront to unalienable rights involved at America’s founding in treating fellow human beings as property. It also explains why many abolitionists thought that owning property was a necessary element of emancipation: only by becoming property-owning citizens could former slaves exercise economic independence and so fully enjoy their unalienable rights.”

“Religious liberty enjoys similar primacy in the American political tradition — as an unalienable right, an enduring limit on state power, and a protector of seedbeds of civic virtues. In 1785, James Madison gave classic expression to its centrality in founding-era thinking in his ‘Memorial and Remonstrance Against Religious Assessments.’ Quoting the Virginia Declaration of Rights’ definition of religion, Madison wrote, ‘we hold it for a fundamental and undeniable truth, ‘that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.’ Freedom of conscience in matters of religion is unalienable “because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men.’”

The Report: The Universal Declaration of Human Rights (UDHR)[4]

The report endorsed the statement of Eleanor Roosevelt, a U.S. citizen and Chair of the commission that drafted the UDHR, when the U.N. General Assembly in 1948 was considering the adoption of this instrument: “[I]t is of primary importance, that we keep clearly in mind the basic character of the document. It is not a treaty; it is not an international agreement. It is not and does not purport to be a statement of law or of legal obligation. It is a Declaration of basic principles of human rights and freedoms, to serve as a common standard of achievement for all peoples of all nations” (emphasis added).

Moreover, the UDHR has ”overarching principles and structural dimensions” connected to the U.S. founding and foreign policy.

First, the UDHR “gave voice to the conscience of global humanity for the first time in history.”

Second, the UDHR “includes only those [rights] that were capable of attaining a near-universal consensus among the diverse nations represented at the UN . . . [and] were expressed in open-ended terms in order to achieve consensus and garner widespread support.”

Third, the UDHR “was written and understood as an integrated set of interlocking principles.”

Fourth, the UDHR “affirms that human dignity, freedom, equality, and community are indissolubly linked.” It makes “clear that human dignity is inherent: it pertains to human beings solely because they are human beings . . . and provides a moral standards for evaluating positive law.” Thus, “the idea of human dignity at the heart of the [UDHR}converges with the idea of ‘unalienable rights’ in the American political tradition.”

Fifth, the UDHR has the “capacity to accommodate a broadly diverse set of political, economic, cultural, religious, and legal traditions” and “can be concretely realized in different political systems . . . [allowing] significant latitude in their interpretation and application.”

The Report: Future U.S. Foreign Policy and Human Rights

“U.S. Needs To Vigorously Champion Human Rights in Foreign Policy”

The U.S., “ by virtue of the principles deeply inscribed in its constitutional system and its international commitments, must champion vigorously the vision that it and nearly every other nation pledged to support when they approved the[UDHR].. It is by fidelity to what is best in the nation that the United States can respond most effectively to the manifold demands of the moment. Each of the major traditions that merged in America’s founding — Biblical faith, civic republicanism, and the modern tradition of freedom — nourished the nation’s core convictions that government is properly rooted in the consent of the governed and that its first purpose is to secure the rights that all human beings share. These core convictions, and the traditions that nourish them, are a source of inspiration and strength. It is no exaggeration to say that, with people around the world counting on America to champion fundamental rights, this country’s energetic dedication to that task will have no small influence on the future of freedom.”

“The Power of Example Is Enormous”

The U.S. should serve “as an example of a rights-respecting society where citizens live together under law amid the nation’s great religious, ethnic, and cultural heterogeneity.” The U.S. also needs “to recognize the gap between our principles and the imperfections of our politics and can demonstrate, as we ask of others, tangible efforts at improvements.”

“Human Rights Are Universal and Indivisible”

The U.S. needs to criticize when rights in UDHR “are radically subordinated in the name of development or other social and economic objectives.”

“Universality and Indivisibility of Human Rights Does Not Mean Uniformity in Bringing Them to Life”

The UDHR contemplates “some variation in emphasis, interpretation, and mode of implementation.”

“A Degree of Pluralism in Respecting Human Rights Does Not Imply Cultural Relativism”

“The scope for diversity in bringing human rights to life is circumscribed by the duty to ‘promote and protect all human rights and fundamental freedoms,’ and by the . . . [requirement] that all rights must be exercised with due respect for the rights of others and that its rights may be subject to “such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”

“Nation-States Have Some Leeway To Base Their Human Rights Policy on Their Own Distinctive National Traditions”

Yet such policies must be “consistent with the overarching conviction affirmed in Article I of the UDHR that ‘All human beings are born free and equal in dignity and rights.’”

“Certain Distinctions Among [Human Rights] Are Inherent in the [UDHR] . . .,as Well as in the Positive Law of Human Rights”

“U.S. foreign policy can and should consider which rights most accord with national principles and interests at any given time. Such judgments must take into consideration both the distinctive American contributions to the human rights project and also prudential judgments about current conditions, threats, and opportunities.”

However, “some international norms, like the prohibition on genocide, are so universal that they are recognized as norms of jus cogens — that is, principles of international law that no state can legitimately set aside. The application of certain human rights demands a high degree of uniformity of practice among nations, as in the prohibition of torture, while others allow for considerable variation in emphases.”

“Freedom, Democracy, and Human Rights Are Indissolubly Linked”

This “invites a [U.S.] commitment to the promotion of individual freedom and democratic processes and institutions as central to the U.S. human rights agenda. By the same token, it counsels considerable deference to the decisions of democratic majorities in other countries, recognizing that self-governance may lead them to set their own distinctive priorities. The U.S. promotion of fundamental rights should always be sensitive to the outcomes of ordinary democratic politics and the legitimate exercise of national sovereignty, and wary of rights claims that seek to bypass democratic institutions and processes.”

“Social and Economic Rights Are Essential to a Comprehensive [U.S.] Foreign Policy”

The U.S. was a major supporter of the indivisibility principle as well as the aspiration for “better standards of life in larger freedom” . . . in the UN Charter and the [UDHR] Preamble.” For the U.S., implementation of these rights were “left up to each nation.” A “minimum standard of living is essential to the effective exercise of civil and political rights.”

“New Claims of Rights Must Be Carefully Considered”

“The effort to shut down legitimate debate by recasting contestable policy preferences as fixed and unquestionable human rights imperatives promotes intolerance, impedes reconciliation, devalues core rights, and denies rights in the name of rights. In sum, the [U.S.] should be open to, but cautious in, endorsing new claims of human rights.”

“National Sovereignty Is Vital to Securing Human Rights”

The U.S. “should resist attempts at creating new rights through means that bypass democratic institutions and procedures, or that are inconsistent with the understandings on the basis of which the [U.S.] entered into international agreements. {The U.S. also] should respect the independence and sovereignty of nation-states to make their own moral and political decisions that affirm universal human rights within the limits set forth in the UDHR.”

“The Seedbeds of Human Rights Must Be Cultivated”

“Respect for human rights must be cultivated, and the promotion of basic rights is only one element in building the kind of societies that promote human flourishing in all its dimensions. . . . The collective effort since 1948 to translate the UDHR’s broad principles of human rights into binding legal commitments through a network of treaties has achieved laudable results.”

As Eleanor Roosevelt said on the tenth anniversary of the UDHR, “Protection of human rights is a never-ending struggle, one that involves a nation’s sense of its own principles and purpose. . . . The surest protection of human freedom and dignity comes from the constitutions of free and democratic states undergirded by a tolerant, rights-respecting culture. As in the case of the United States’ distinctive rights tradition, the maintenance of the international human rights project will require attention to the ‘small places’ where the spirit of liberty is rooted, nurtured, and cultivated.”

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[1] See U.S. Commission on Unalienable Rights Is Launched, dwkcommentaries.com (July 8, 2019); State Dep’t, Charter for the Commission on Unalienable Rights; State Dep’t, Commission on Unalienable Rights, Member Bios. See also List of Posts to dwkcommentaries—-Topical: U.S. Commission on Unalienable Rights.

[2] State Dep’t, Policy Planning Staff, Commission on Unalienable Rights; State Dep’t, Public Submissions to the Commission [on Unalienable Rights].

[3] State Dep’t, Draft Report of the Commission on Unalienable Rights (July 16, 2020).

[4] The Commission Chair, Mary Ann Glendon, is a noted authority on the UDHR. See Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House 2001). See also Human Rights Commentaries by Mary Ann Glendon, Chair of Commission on Unalienable Rights, dwkcommentaries.com (Nov. 2, 2019).

Pandemic Journal (#18): Colorado’s Successful Voting by Mail

A previous Pandemic Journal (# 10) and seven comments thereto discussed the turmoil over Wisconsin’s April primary election and yet its successful implementation of voting by mail so long as such votes were postmarked on or before the actual date of the election.[1]

Another state, Colorado, has had a successful system for voting by mail since 2013, as documented by a recent academic study.[2]

The study’s overall conclusion: “A huge expansion of mail voting is one way to ensure that participating in democracy won’t undermine public health.” The authors continue, “The idea of ‘all-mail voting’ is straightforward: Every registered voter gets sent a ballot via mail to their home address, then after making their choices, voters mail it back; and those who want to still travel to vote in person can do so. In the midst of this pandemic, it’s an adjustment that every state legislature should try to make.”

“Our new research, published yesterday, shows that elections with all-mail voting increase turnout among everyone, especially groups that tend to vote less frequently. Those results merit permanent, wide-scale shifts. Currently, registered voters automatically get a ballot by mail in five states: Oregon, Washington, Utah, Colorado and Hawaii. A few other states have all-mail voting in small jurisdictions, and California has been gradually rolling it out.”

“Our findings show, however, that low-turnout groups are the very groups that stand to benefit most from all-mail voting. Focusing on Colorado’s recent switch to vote-by-mail in 2013 and using the voter file — a comprehensive record of who turns out in American elections — we find that turnout goes up among everyone, especially the historically disenfranchised: young people, voters of color, less-educated people and blue-collar workers.”

In fact, “all-mail voting has a tremendously large effect, boosting overall voting rates in Colorado by more than 9 percentage points.” Moreover, “ youth turnout increases by 16 percentage points. Blue-collar workers see a 10 percentage-point jump in turnout. People without a high school diploma are 9.6 percentage points more likely to vote. And voters of color benefit immensely: Our research finds a 13 percentage-point turnout boost for African-Americans, a 10 percentage-point boost for Latino voters and an 11 percentage-point increase for Asian-Americans.”

In addition, with such voting, “Households with less than $10,000 in wealth see a 10 percentage-point turnout boost from all-mail voting, while the effect for those with $250,000 or more in wealth is about half that size.”

“In Colorado, a traditional swing state, ballots are mailed to all registered voters, who can then choose to mail back their completed ballot or drop it in one of many secure collection boxes. (Denver alone has about 30 throughout the city.) Or voters take it to a county vote center, staffed with personnel, to cast their ballot in person. Vote centers are open during an early voting period as well as on Election Day.”

In addition, Colorado “also allows for same-day registration. This ensures that people who miss the state’s registration deadline for mail voting can still register and vote in person. (Colorado also proactively updates voter addresses using the United States Postal Service’s National Change of Address database and, as of 2017, provides automatic voter registration throughout the state.)”

Finally, the authors state, “fraud is exceptionally rare, hard to commit without getting caught and nearly impossible to do on the scale necessary to affect election results. And because mail voting leaves behind a paper trail — which election officials can audit to verify that votes were counted as cast — it may actually be even more secure than in-person voting.”

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[1] See these entries on dwkcommentaries.com: Pandemic Journal (# 10): Wisconsin Primary Election (April 10, 2020); Comment: More Criticism of Republican Strategy of Limiting Voting (April 12, 2020); Comment: More Comments on Wisconsin Election (April 13, 2020); Comment: Surprising Results in Wisconsin Election (April 14, 2020); Comment: George F. Will’s Opinion on Voting by Mail (VBM) (April 15, 2020); Comment: Emerging Battles Over Changing State Election Laws (April 15, 2020); Comment: New York Times Editorial on Wisconsin Election (April 20, 2020); Comment: Thousands of Wisconsin Ballots Counted After Election Day (May 3, 2020).

[2] Hill, Grumbach, Bonica & Jefferson, We Should Never Have to Vote in Person Again, N.Y. Times (May 4, 2020) The authors are Charlotte Hill, a doctoral candidate at the University of California, Berkeley; Jacob Grumbach, a professor of political science at the University of Washington; and Adam Bonica and Hakeem Jefferson, both professors of political science at Stanford. Some of these points also were voiced by former Colorado Governor John Hickenlooper (now a candidate for U.S. Senate). (Hickenlooper, We’ve been voting at home for six years in Colorado. It’s time to do it nationally, Wash. Post (April 8, 2020).)

U.S. Commission on Unalienable Rights Is Launched

On July 8, 2019, the U.S. State Department launched its Commission on Unalienable Rights.[1]

Secretary of State Pompeo’s Remarks

At the launch Secretary of State Michael Pompeo said “the Trump administration has embarked on a foreign policy that takes seriously the founders’ ideas of individual liberty and constitutional government. Those principles have long played a prominent role in our country’s foreign policy, and rightly so. But as that great admirer of the American experiment Alex de Tocqueville noted, democracies have a tendency to lose sight of the big picture in the hurly-burly of everyday affairs. Every once in a while, we need to step back and reflect seriously on where we are, where we’ve been, and whether we’re headed in the right direction, and that’s why I’m pleased to announce today the formation of a Commission on Unalienable Rights.”

The Commission will focus on “human rights grounded in our nation’s founding principles and the principles of the 1948 Universal Declaration of Human Rights. An American commitment to uphold human rights played a major role in transforming the moral landscape of the international relations after World War II, something all Americans can rightly be proud of. Under the leadership of Eleanor Roosevelt, the 1948 Universal Declaration on Human Rights ended forever the notion that nations could abuse their citizens without attracting notice or repercussions.” (Emphasis added.)

“With the indispensable support of President Ronald Reagan, a human rights revolution toppled the totalitarian regimes of the former Soviet Union. Today the language of human rights has become the common vernacular for discussions of human freedom and dignity all around the world, and these are truly great achievements.”

“But we should never lose sight of the warnings of Vaclav Havel, a hero of the late-20th-century human rights movement, that words like ‘rights’ can be used for good or evil; ‘they can be rays of light in a realm of darkness … [but] they can also be lethal arrows.’ And as Rabbi Jonathan Sacks has observed, the evils of any time and place will be justified in whatever is the dominant discourse of that time and of that place. We must, therefore, be vigilant that human rights discourse not be corrupted or hijacked or used for dubious or malignant purposes.”

“It’s a sad commentary on our times that more than 70 years after the Universal Declaration of Human Rights, gross violations continue throughout the world, sometimes even in the name of human rights. International institutions designed and built to protect human rights have drifted from their original mission. As human rights claims have proliferated, some claims have come into tension with one another, provoking questions and clashes about which rights are entitled to gain respect. Nation-states and international institutions remain confused about their respective responsibilities concerning human rights.” (Emphasis added.)

“With that as background and with all of this in mind, the time is right for an informed review of the role of human rights in American foreign policy.” (Emphasis added,)

The Secretary hopes that the Commission “will revisit the most basic of questions: What does it mean to say or claim that something is, in fact, a human right? How do we know or how do we determine whether that claim that this or that is a human right, is it true, and therefore, ought it to be honored? How can there be human rights, rights we possess not as privileges we are granted or even earn, but simply by virtue of our humanity belong to us? Is it, in fact, true, as our Declaration of Independence asserts, that as human beings, we – all of us, every member of our human family – are endowed by our creator with certain unalienable rights? (Emphasis added.)

To put it another way, “the commission’s charge is to point the way toward that more perfect fidelity to our nation’s founding principles. . . .” (Emphasis added.)

Secretary Pompeo’s Prior Wall Street Journal Article[2]

The day before the Department’s launching of the Commission. Secretary Pompeo published an article about the Commission in the Wall Street Journal, in which he made the following comments beyond what he said at the official launch.

“America’s Founders defined unalienable rights as including ‘life, liberty, and the pursuit of happiness.’ They designed the Constitution to protect individual dignity and freedom. A moral foreign policy should be grounded in this conception of human rights.”

“Yet after the Cold War ended, many human-rights advocates turned their energy to new categories of rights. These rights often sound noble and just. But when politicians and bureaucrats create new rights, they blur the distinction between unalienable rights and ad hoc rights granted by governments. Unalienable rights are by nature universal. Not everything good, or everything granted by a government, can be a universal right. Loose talk of ‘rights’ unmoors us from the principles of liberal democracy.” (Emphasis added.)

He hopes “that its work will generate a serious debate about human rights that extends across party lines and national borders.” It “will address basic questions: What are our fundamental freedoms? Why do we have them? Who or what grants these rights? How do we know if a claim of human rights is true? What happens when rights conflict? Should certain categories of rights be inextricably ‘linked’ to other rights?”

“The human-rights cause once united people from disparate nations and cultures in the effort to secure fundamental freedoms and fight evils like Nazism, communism and apartheid. We have lost that focus today. Rights claims are often aimed more at rewarding interest groups and dividing humanity into subgroups.” (Emphasis added.)

“Oppressive regimes like Iran and Cuba have taken advantage of this cacophonous call for ‘rights,’ even pretending to be avatars of freedom. No one believed the Soviet call for collective economic and civil rights was really about freedom. But after the Cold War ended, many human-rights advocates adopted the same approach, appealing to contrived rights for political advantage.” (Emphases added.)

“The commission’s work could also help reorient international institutions specifically tasked to protect human rights, like the United Nations, back to their original missions. Many have embraced and even accelerated the proliferation of rights claims—and all but abandoned serious efforts to protect fundamental freedoms.” (Emphasis added.)

“Human-rights advocacy has lost its bearings and become more of an industry than a moral compass. And ‘rights talk’ has become a constant element of our domestic political discourse, without any serious effort to distinguish what rights mean and where they come from.” (Emphasis added.)

Announcement of Commission’s Chair

On July 8, the Secretary announced that the Chair of the Commission will be Mary Ann Glendon, the Learned Hand Professor of Law at Harvard Law School, an expert on human rights, comparative law and political theory and former U.S. Ambassador to the Holy See, among many honors.

Professor Glendon acknowledged this appointment with the following remarks:

“Secretary, I am deeply grateful for the honor of chairing this new commission, and I wanted to thank you especially for giving a priority to human rights at this moment when basic human rights are being misunderstood by many, manipulated by many, and ignored by the world’s worst human rights violators. At the same time, I understand that the mission that you have set us is a challenging one. You’ve asked us to work at the level of principle, not policy, and you’ve asked us to take our bearings from the distinctive rights tradition of the United States of America, a tradition that is grounded in the institutions without which rights would not be possible: constitutional government and the rule of law. I want to assure you, Mr. Secretary, that we will do our very best to carry out your marching orders and to do so in a way that will assist you in your difficult task of transmuting principle into policy.”

Announcement of Nine Other Commission Members

The Secretary also announced the appointment of the following nine additional members of the Commission. (The Commission’s Charter calls for 15 members so there may be an additional five members to be named later.)[3]

Russell Berman. He is the Walter A. Haas Professor in the Humanities at Stanford University, a Senior Fellow at the Hoover Institution and co-chair of its Working Group on Islamism and the International Order. Recently he has written about the reemergence of anti-Semitism and China’s “programmatic efforts to suppress the ethnic identity of the Uighur people” of Islamic faith.

Peter Berkowitz. He is the Ted and Dianne Taube Senior Fellow at the Hoover Institution and a member of its Military History/Contemporary Conflict Working Group and a member of the State Department’s Policy Planning Staff. He “studies and writes about, among other things, constitutional government, conservatism and progressivism in the United States, liberal education, national security and law, and Middle East politics.”

Paolo Carozza. He is Professor of Law and Political Science at the University of Notre Dame and Director of its Kellogg Institute for International Studies an interdisciplinary, university-wide body “focusing on the themes of democracy and human development.” His expertise is in the areas of comparative constitutional law, human rights, law and development and international law. From 2006 through 2010 he was a member of the Inter-American Commission on Human Rights, the principle international body for protecting human rights in the Western Hemisphere, and he also has served the Holy See in various capacities.

Hamza Yusuf Hanson. He is an American Islamic scholar, proponent of classical Islamic sciences and founder of Zaytuna College, a Muslim liberal arts college in Berkeley, California. According to The New Yorker Magazine, he is “perhaps the most influential Islamic scholar in the Western world.” He was born in the U.S. as Mark Hanson and grew up a practicing Greek Orthodox Christian, but at age 19 he read the Qur-an and converted to Islam.

Jacqueline C. Rivers. She is Lecturer on Sociology at Harvard University. She holds B.A. and Ph. D degrees with honors from Radcliffe College and Harvard and has served as Doctoral Fellow in the Multidisciplinary Program in Inequality and Social Policy of the Harvard’s J. F. Kennedy School of Government and a Graduate Research Fellow of the National Science Foundation. Rivers, an African-American, also is the Executive Director of the Seymour Institute on Black Church and Policy Studies, which seeks to create and promote a philosophical, political and theological framework for a pro-poor, pro-life, pro-family movement within the ecumenical Black Church both domestically and internationally.

Meir Soloveichik. He is an American Orthodox rabbi with a Ph.D. degree in religion from Princeton University. He has written extensively about Jewish thought and life, the relationship between Judaism and Christianity and the limits of interfaith dialogue. In 2012 he gave the opening invocation at the Republican National Convention.

Katrina Lantos Swett. She is the former chair of the U.S. Commission on International Religious Freedom and now the President of the Lantos Foundation for Human Rights, which is named in honor of her father, a Holocaust survivor and former Democratic Congressman. She is married to Richard Swett, former Ambassador to Denmark and former Congressman, and she converted to his faith, The Church of Jesus Christ of Latter-day Saints. She has been an unsuccessful Democratic candidate for the U.S. House of Representatives and Senate.

Christopher Tollefsen. He is the University of South Carolina’s College of Arts and Sciences Distinguished Philosophy Professor with specialization in moral philosophy, natural law ethics, practical ethics and bioethics. He has written many articles for “Public Discourse,” the journal of the Witherspoon Institute, which seeks to promote public understanding of the moral foundations of free societies. He also is a co-author of Embryo: A Defense of Human Life and the editor of John Paul II’s Contribution to Catholic Bioethics.

David Tse-Chien Pan. He is Professor of German at University of California, Irvine. His research has focused on the problem of aesthetic experience as a mediator of human history in order to understand how history develops through a process of recollection and interpretation that depends on judgment and takes the reception of works of art as its model.

Reactions

Secretary Pompeo’s Wall Street Journal article for the first time really sets forth what has been speculated as the Commission’s true mission: redefinition and narrowing of international human rights.

A senior State Department official, in a report by CBS News, made the same point, perhaps more diplomatically, when he said the Commission will act like a “study group, examining the concept of universal human rights, where those rights come from and the difference between inherent rights and those prescribed by governments. . . . Unalienable rights are granted to everyone, everywhere, at all times. It doesn’t matter if you’re straight or gay, or a man or a woman, or black, white, brown or purple.’”

However, this official said, topics like abortion and gay marriage will not be part of the panel’s agenda. ‘Women’s rights or gay rights or healthcare rights, those are domestic issues.’ At some point gay marriage might be considered one of those, but this is an issue that’s being worked out on a nation-state level.’”

The importance of this Commission from the Trump Administration’s standpoint is underscored by the impressive resumes of its Chairperson and its initial other members. Therefore, advocates for the existing body of international human rights law need to prepare to combat this onslaught.

Amnesty International USA immediately said there was no reason for such a review given the decades-old protections in place and that the use of the word “unalienable” might be a code word to narrow human rights to the Founders’ notions of the late 18^th century. Similar thoughts were expressed by the American Civil Liberties Union: “taxpayer resources would be better spent assessing the administration’s failure to meet basic human rights obligations, rather than redefining those rights.”

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[1] State Dep’t, Secretary of State Michael R. Pompeo Remarks to the Press (July 8, 2019); Sullivan & Wong, State Department Creates Advisory Panel on Human Rights, N.Y. Times (July 8, 2019); Reuters, Pompeo Launches Panel to Review Human Rights in U.S. Foreign Policy, N.Y. Times (July 8, 2019)(notes Trump Administration’s U.N. actions against sexual and reproductive health measures); Assoc. Press, Trump Administration Reviews Human Rights’ Role in US Policy, N.Y. Times (July 8, 2019). Previous posts to this blog have discussed this Commission: Is Trump Administration Attempting To Redefine International Human Rights? (June 15, 2019); Other Reactions to State Department’s Commission on Unalienable Rights (June 17, 2019); More Thoughts on Commission on Unalienable Rights (June 18, 2019); U.S. Commission on Unalienable Rights: Developments (July 4, 2019).

[2] Pompeo, Unalienable Human Rights and U.S. foreign Policy, W.S.J. (July 7, 2019).

[3] Another source listed two possible additional members of the Commission: Kiron Skinner and F. Cartwright Weiland. Skinner is the Director of Policy Planning at the State Department and a former Research Fellow at Stanford University’s Hoover Institution and a professor at Carnegie Mellon University. Weiland is a current or former chief speechwriter for Senator John Cornyn and Republican Whip (Rep., TX) and/or Policy Analyst at Texas Conservative Coalition Research Institute. (Ruffini, Mike Pompeo unveils new “Unalienable Rights” commission amid concerns over progressive rollbacks, CBS News (July 8, 2019).)

Other Reactions to U.S. Ordering Removal of 15 Cuban Diplomats

On October 3, the U.S. ordered the removal of 15 Cuban diplomats from the U.S. as discussed in a prior post while other posts looked at recent developments on these issues and on Cuba’s reaction to that U.S. decision and order. This post will discuss reactions from others.

Opposition to Expulsion of Cuban Diplomats[1]

The harshest criticism of this decision along with others recently taken by the Trump Administration has been leveled by Harold Trinkunas, the deputy director of the Center for International Security and Cooperation at the Freeman Spogli Institute for International Studies at Stanford University and a nonresident senior fellow at the Brookings Institution, and Richard Feinberg, professor at the School of Global Policy and Strategy at the University of California San Diego and a nonresident senior fellow at the Brookings Institution.They say the following:

“This White House and its pro-embargo allies in Congress have opportunistically seized on these mysterious illnesses affecting U.S. diplomats to overturn the pro-normalization policies of a previous administration, using bureaucratic obstruction and reckless language when they cannot make the case for policy change on the merits alone.”
By taking these precipitous actions, Trinkunas and Feinberg argue, “this White House is doing exactly what our adversaries in the region seek to provoke. Overt U.S. hostility [towards Cuba] empowers anti-American hardliners in the Cuban regime opposed to stronger bilateral relations between the two countries. In addition, [the announced American travel restrictions and warning hurts] the privately-operated [and progressive] segments of the Cuban tourism sector, and . . . [thereby weakens] the emerging Cuban middle class.”
Furthermore, they say, “a breakdown in U.S.-Cuban relations allows Russia, China, Iran and Venezuela to deepen their influence in Cuba and the broader Caribbean Basin. By pushing Cuba away, the U.S. is pushing it towards other actors whose interests are not aligned with our own.
“Our partners in Latin America welcomed the change in U.S. policy towards Cuba in 2014 as a sign that the Cold War had finally ended in the Western Hemisphere. The [Trump] administration’s retreat from the opening towards Cuba alarms our friends in the Americas and calls into question the enduring value of U.S. commitments . . . . This pattern of reckless animus towards diplomacy comes at a cost to the international reputation of the U.S. with no apparent gain for our interests abroad.”
“U.S. hostility [also] risks damaging the coming transition to a new Cuban government after President Raul Castro steps down in early 2018 by strengthening the hand of anti-American hardliners who oppose further economic opening on the island.”
“It damages Cuban-Americans and their families by impeding travel and the flow of funding associated with their visits, and those of other American visitors, which have allowed the Cuban private sector to gain traction. It also damages U.S. relations with our partners in the region, who have long criticized what they see as senseless hostility between the U.S. and Cuba. And finally, the Trump administration’s approach serves to widen the door to U.S. geopolitical adversaries, such as Russia and Venezuela, to advance their interests in Cuba and in the region.”
“Many of our professional diplomats, both those stationed in Havana and those at the State Department, oppose the dramatic downsizing of the U.S. and Cuban missions. While all are concerned for the safety of U.S. personnel, the health incidents seem to be in sharp decline. The U.S. diplomats in Havana are proud of the gains in advancing U.S. interests in Cuba, and they wish to continue to protect and promote them.”

EngageCuba, the leading bipartisan coalition promoting U.S.-Cuba normalization and reconciliation, said, “”The diplomats and their families suffering from unexplained health issues deserve answers. If the U.S. government is serious about solving this mystery, they shouldn’t make it more difficult to cooperate with the Cuban government during this critical time of the investigation. This decision appears to be purely political, driven by the desire of a handful of individuals in Congress to halt progress between our two countries. Expelling Cuban diplomats will not solve this mystery; it will not improve the safety of U.S. personnel, but it will make it harder for hundreds of thousands of Cuban-Americans to visit their families on the island. We hope that the driving forces behind this decision are comfortable with their Cuban-American constituents being unable to visit their loved ones.”

This EngageCuba statement followed the one it issued about the reduction of staffing of the U.S. Embassy in Havana. It said, “”The safety and security of all diplomatic personnel in Cuba, and anywhere in the world, is the first priority of our country. Whoever is behind these serious and inexcusable attacks on American diplomats must be apprehended and brought to justice. We must be careful that our response does not play into the hands of the perpetrators of these attacks, who are clearly seeking to disrupt the process of normalizing relations between our two countries. This could set a dangerous precedent that could be used by our enemies around the world.

EngageCUBA continued, “It is puzzling that the Trump Administration would use this delicate time in the investigation to advise Americans against traveling to Cuba, given the fact that none of these attacks have been directed at American travelers. We are also concerned for the Cuban people, who will be impacted by this decision. Halting the visa process in Cuba and discouraging Americans from traveling to Cuba will divide families and harm Cuba’s burgeoning private sector, civil society groups and efforts to improve human rights on the island.”

In conclusion, said EngageCUBA, “the U.S. and Cuba must redouble efforts to solve this mystery as quickly as possible in order to keep our embassy personnel safe and continue to move forward with strengthening relations between our two countries.”

A New York Times’ editorial similarly observed, “until there is concrete evidence about the source of the attacks, the Trump administration is wrong to expel Cuban diplomats from Washington. . . . Secretary of State Rex Tillerson’s explanation that Cuba should be punished for failing to protect American diplomats presumes that Cuba was at least aware of the attacks, which the [U.S.] has neither demonstrated nor claimed. “Furthermore, “Until something more is known, punishing Havana serves only to further undermine the sensible opening to Cuba begun under Barack Obama. President Trump has made no secret of his disdain for the détente — in June his government ordered restrictions on contacts with Cuba that have slowed the flow of visitors to the island, and last week the State Department warned Americans not to travel there, though there is no evidence that tourists are in danger. The sonic attacks on Americans are too serious to be used for cynical political ends.”

Geoff Thale, director of programs at the Washington Office on Latin America, a human rights advocacy group, said: “The United States is using the confusion and uncertainty surrounding these events as justification to take a big step backwards in U.S.-Cuban relations. This doesn’t serve our national interests, or our diplomacy, and it most certainly doesn’t do anything to help advance human rights or a more open political climate in Cuba. This is an unfortunate decision that ought to be reversed.”

Tom Emmer (Rep., MN), the Chair of the Congressional Cuba Working Group, stated, “The Administration’s decision last week to withdraw all non-essential personnel from our embassy in Havana was concerning but understandable to ensure the safety of our foreign service staff on the island. Unfortunately, yesterday’s actions do not seem to advance our efforts of identifying a cause or culprit behind these ‘sonic attacks.’ Instead of sending us back down a path of isolation, we must foster open lines of communication as we continue the investigation to determine who must be held responsible for these attacks on Americans. We cannot lose sight of the fact that an improved and sustained relationship with Cuba brings us one step closer to ensuring the stability and security of the entire Western Hemisphere.”

Senator Ben Cardin (Dem., MD), the Ranking Member on the Senate Foreign Relations Committee, more guardedly said, “Although . . . [the] decision to expel Cuban diplomats brings parity between U.S. and Cuban embassy personnel levels, I am concerned that it may also stoke diplomatic tensions and complicate our ability to conduct a thorough investigation of these attacks. The U.S. should not take actions that could undermine our bilateral relations with Cuba and U.S. policies aimed at advancing our strategic national interests in the hemisphere.”

Although the most recent Cuba Travel Warning from the State Department strongly discouraged Americans from traveling to Cuba, “several cruise lines operating ships in and around Cuba have released statements pushing back on the warning, noting that no tourists have been harmed in these incidents.” Moreover, “several cruise companies had already announced significant expansion of their Cuba operations before the warning was issued.”

Approval of Expulsion of Cuban Diplomats[2]

This latest U.S. announcement is what was recommended by a Wall Street Journal editorial and by U.S. Senator Marco Rubio, who immediately tweeted that this was “the right decision.” His subsequent press release Rubio stated, “I commend the US State Department for expelling a number of Cuban operatives from the US. No one should be fooled by the Castro regime’s claim it knows nothing about how these harmful attacks are occurring or who perpetrated them. I have called on the State Department to conduct an independent investigation and submit a comprehensive report to Congress. . . . All nations have an obligation to ensure the protection of diplomatic representatives in their countries. Cuba is failing miserably and proving how misguided and dangerous the Obama Administration’s decisions were.”[7] He added, ““At this time, the U.S. embassy in Havana should be downgraded to an interests section and we should be prepared to consider additional measures against the Castro regime if these attacks continue.”

This news should also be welcomed by the Washington Post, whose recent editorial continued this newspaper’s hard line about U.S.-Cuba relations by refusing to believe Cuba’s denial of knowledge about the cause and perpetrator of the “attacks” on U.S. diplomats in Havana. It asserts “recent events suggest that the unpleasant reality of Fidel Castro’s dictatorship remains in place” and that “For decades, the Cuban state security apparatus has kept a watchful eye on everything that moves on the island, and informants lurk on every block. It begs disbelief that Cuba does not know what is going on. Unfortunately, this kind of deception and denial is all too familiar behavior.” Therefore, if “Cuba sincerely wants better relations with the United States, it could start by revealing who did this, and hold them to account.”[8]

This suspicion of Cuban involvement in the attacks received some corroboration by the Associated Press, which reports that six unnamed sources say that “many of the first reported cases [of attacks] involved intelligence workers posted to the U.S. embassy.” Moreover, of “the 21 confirmed cases, American spies suffered some of the most acute damage, including brain injury and hearing loss that has not healed.” U.S. investigators, according to the AP, have identified “three ‘zones,’ or geographic clusters of attacks, [which] cover the homes where U.S. diplomats live and several hotels where attacks occurred, including the historic Hotel Capri.” Both the State Department and the CIA declined to comment to the AP. This report undoubtedly will fuel efforts to overturn normalization of relations between the two countries.[9]

Conclusion

I agree with Trinkunas and Feinberg, the recent decisions about Cuba by the Trump Administration do exactly what our adversaries in the region seek to provoke: empower anti-American hardliners in the Cuban regime opposed to stronger bilateral relations between the two countries; damage Cuba’s upcoming transition to a new government after Raúl Castro leaves the presidency early next year; and hurt and weaken the privately-operated and progressive segments of the Cuban tourism sector. In addition, those decisions weaken U.S. relations with most other governments in Latin America while damaging many Cuban and Cuban-American families seeking to maintain and increase their ties. Those decisions also allow Russia, China, Iran and Venezuela, all of which are hostile to the U.S., to deepen their influence in Cuba and the broader Caribbean Basin.

I must also note my surprise that at the two recent State Department press briefings no journalist followed up on the previously mentioned Associated Press report that the initial U.S. diplomats who reported medical problems were U.S. intelligence agents to ask whether that report was valid and other related questions.

All who support the continuation of U.S.-Cuba normalization and reconciliation should oppose these moves by the Trump Administration.

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[1] Trinkunas & Feinberg, Reckless hostility toward Cuba damages America’s interests, The Hill (Oct. 5, 2017); EngageCuba, Statement on U.S. Expulsion of Cuban Diplomats in Washington (Oct. 3, 2017); Engage Cuba, Statement on U.S. Cuts to Havana Embassy & Travel Alert (Sept. 29, 2017); Editorial, Cuba and the Mystery of the Sonic Weapon, N.Y. Times (Oct. 5, 2017) (this editorial also noted that the reported medical problems “are real and serious” and that “Cuba’s repressive government must be the prime suspect”); WOLA, U.S. Plan to Expel Two-thirds of Cuban Embassy Needlessly Sets Back U.S.-Cuba Relations (Oct. 3, 2017); Emmer Statement on Administration’s Decision to Remove Cuban Diplomats from Washington, D.C. (Oct. 4, 2017); Cardin Questions Expulsion of Cuban Diplomats amidst Attacks on U.S. Personnel in Cuba (Oct. 3, 2017); Morello, U.S. will expel 15 Cuban diplomats, escalating tensions over mystery illnesses, Wash. Post (Oct. 3, 2017); Gomez, U.S. orders 15 Cuban diplomats to leave; Cuba blames Washington for deteriorating relations, Miami Herald (Oct. 3, 2017); Glusac, Despite Travel Warning, Cruises to Cuba Continue, N.Y. Times (Oct. 5, 2017).

[2] Rubio Press Release, Rubio commends State Department’s Expulsion of Cuban Operatives (Oct. 3, 2017); Editorial, Cuba plays dumb in attacks on American diplomats, Wash. Post (Sept. 30, 2017); Assoc. Press, APNewsBreak: Attacks in Havana Hit US Spy Network in Cuba, N.Y. Times (Oct. 2, 2017).

Christian Wiman’s “Gazing Into the Abyss”

In 2006 at age 40 Christian Wiman conducted a retrospective examination of his life in his essay, Gazing Into the Abyss, American Scholar (Summer 2007).[1]

This post examines that essay and other writings by Wiman, now a 48-year-old writer and Lecturer in Religion and Literature at Yale University’s Institute of Sacred Music.[2]

Gazing Into the Abyss

He grew up in a “very religious household” of his Southern Baptist parents in West Texas who held “the poisonous notion that you had to renounce love of the earth in order to receive the love of God.”

In his late teens (while a student at Washington & Lee University) Wiman rebelled against his religious upbringing and stopped attending any church. This rebellion lasted for more than 20 years or until he was in his late 30’s.

After graduating from college, he began a career as a poet. Indeed, poetry became “the central purpose of his life” for almost 20 years, or until he was 36 years old. Looking back on that period, Wiman can see “how thoroughly the forms and language of Christianity have shaped my imagination“ and “how deep and persistent my existential anxiety” was. Although he rejects the notion that poetry does or should replace religion, Wiman admits that “poetry is how religious feeling has survived in me.” Indeed, the one constant he now sees in his own poetry is God or “His absence.” (In a subsequent interview he said, “my refusal to admit [God’s] presence—underlies all of my earlier work.”)

Then three “shattering” events occurred in his life: one, of “necessity;” the second, of “glory;” and the third, of “tragedy.”

In 2002, at age 36 he encountered the event of necessity or despair. He stopped writing poetry. This was a conscious decision because he told himself at the time that he had “exhausted one way of writing.” Now he believes the “deeper truth” is that he was exhausted. The connection he had felt between word and world “went dead.”

Nearly simultaneously, however, his “career in poetry began to flourish” as he “moved into a good teaching job,” which he left in 2003[3] to become the Editor of the Poetry journal (which he held for the next 10 years); and found a publisher for his previous work. However, “there wasn’t a scrap of excitement in any of this for me. It felt like I was watching a movie of my life rather than living it, an old silent movie, no color, no sound, no one in the audience but me.”

In about 2003, he encountered the event of “glory,” meeting a woman and falling in love with her. He recalls “color slowly aching into things, the world coming brilliantly, abradingly [erodingly?] alive.” He continues, “I was completely consumed” and “for the first time in my life, [I felt] like I was being fully possessed by being itself.” He now had “a joy that was at once so overflowing that it enlarged existence, and yet so rooted in actual things that, again for the first time, that’s what I began to feel, rootedness.”

This glorious state of love prompted a longing for divinity. Wiman and his lover started to pray –“jokingly” and “awkwardly” at first and then “with intensifying seriousness and deliberation”—by naming each thing they were thankful for and praising “the thing we could not name.” On Sundays they half-jokingly entertained the idea of going to church, and on “the morning after we got engaged, in fact, we paused for a long time outside a church on Michigan Avenue” (4^th Presbyterian Church on North Michigan Avenue in Chicago?), but did not enter due to his resistance.

In any event, in 2004 when he was 38 years old, the two of them were married.

In 2005, on his 39^th birthday, the third event—the one of “tragedy”—occurred. He was diagnosed with an “incurable cancer in my blood.” Christian and his wife “sat on the couch and cried, . . . mourning the death of the life we had imagined with each other.”

Over the next year, they found themselves going to church and discovering “where and who we were meant to be.” He also remembers the walks they took after church and the “moments of silent, and what felt like sacred, attentiveness . . . to: an iron sky and the lake [Lake Michigan] so calm it seemed thickened; the El blasting past with its sparks and brief, lost faces; the broad leaves and white blooms of a catalpa on our street, Grace Street, and under the tree a seethe [constant agitation] of something that was just barely still a bird, quick with life beyond its own.” This was “a love of the earth and existence so overflowing that it implied, or included, or even demanded, God. Love did not deliver me from the earth, but into it.” (These experiences also constituted a thorough rejection of his childhood religious belief that one had “to renounce love of the earth in order to receive the love of God.”)

By “some miracle I do not find this experience is crushed or even lessened by the knowledge that, in all likelihood, I will be leaving the earth sooner than I had thought. Quite the contrary, I find life thriving in me, . . . for what extreme grief has given me is the very thing it seemed at first to obliterate: a sense of life beyond the moment, a sense of hope.” This is a hope for “a ghost of wholeness that our inborn sense of brokenness creates and sustains, some ultimate love that our truest temporal ones goad us toward. This I do believe in, and by this I live, in what the apostle Paul called “hope toward God.” [4]

“To find life authentic only in the apprehension of death, is to pitch your tent at the edge of an abyss,” and according to Friedrich Nietzsche, “when you gaze long into the abyss, the abyss also gazes into you.”

“I was not wrong all those years to believe that suffering is at the very center of our existence, and that there can be no untranquilized life that does not fully confront this fact. The mistake lay in thinking grief the means of confrontation, rather than love.” Our “intuitions” of grace, eternity and a love that does not end “come only through the earth, and the earth we know only in passing, and only by passing.” Faith, therefore, “is not a state of mind but an action in the world, a movement toward the world.”

Here Wiman draws upon a favorite metaphor of Simone Weil: two prisoners are in adjacent solitary confinement cells and communicate using taps and scratches on the wall between them. Weil says, and Wiman concurs, this is like the wall that separates us from God. Wiman concludes his essay, “the wall on which I make my taps and scratches is . . . this whole prodigal and all too perishable world in which I find myself, very much alive, and not at all alone.” Now he constantly is “trying to get as close to this wall as possible . . . [and] listening with all I am.”

Subsequent Writing

In the “Preface” to his latest book– My Bright Abyss: Meditation of a Modern Believer (2013) [5]—Wiman referred to readers’ reaction to the “Abyss” essay.[6] He said this reaction made him realize there was “an enormous contingent of thoughtful people . . . who are frustrated with the language and forms of contemporary American religion . . . [but] feel the burn of being that drives us out of ourselves, that insistent, persistent gravity of the ghost called God.”

This realization prompted him to write essays or meditations “to figure out my own mind. I knew that I believed, but I was not at all clear on what I believed. So I set out to answer that question, though I have come to realize that the real question—the real difficulty– is how, not what. How do you answer that burn of being? What might it mean for your life—and for your death—to acknowledge that insistent, persistent ghost?”

Kathleen Norris, another contemporary author of religious/spirituality books, says that My Bright Abyss “reveals what it can mean to experience St. Benedict’s admonition to keep death daily before your eyes.” She adds, “With both honesty and humility, Wiman looks deep into his doubts, his suspicion of religious claims and his inadequacy at prayer. He seeks ‘a poetics of belief, a language capacious enough to include a mystery that, ultimately, defeats it, and sufficiently intimate and inclusive to serve not only as individual expression but as communal need.’”

My Bright Abyss is now on my iPad to be read.

Conclusion

Wiman’s essay reminds us all of the importance of periodically examining your own life. For him this task is assisted by the discipline of writing. I share this belief, and some of my blog posts attempt to do this although without the felicitous vocabulary and style of Wiman.

Like Wiman, I grew up in a religious home although not as fundamentalist as his. Like him, I abandoned religious belief and practice during my college years, and my time in the spiritual desert, like his, lasted for about 20 years. During this period, my “central purpose” was lawyering, which in some ways was similar to his focus on poetry. My reclamation of a religious and spiritual life, however, was not precipitated by “shattering” events like Wiman, but rather by an inner emptiness and a sense that the secular world did not have all the answers to life’s problems.

I share Wiman’s belief that the language and forms of much of contemporary American religion leave much to be desired, but I have found a church–Minneapolis’ Westminster Presbyterian Church–that, in my opinion, speaks to the world as it is and has become my spiritual home as I have shared in posts to this blog.

Moreover, Westminster recently was host to a national conference of the “NEXT Church” movement that seeks “to foster relationships among God’s people:sparking imaginations;connecting congregations; offering a distinctively Presbyterian witness to Jesus Christ.” To that end,“Trusting in God’s sovereignty and grace, NEXT Church will engage the church that is becoming by cultivating vital connections, celebrating emerging leadership and innovation, and working with congregations and leaders to form and reform faith communities.”

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[1] I first learned about Wiman and the “Abyss” essay at the June 8, 2014, “Virtues and Values” adult education class at Minneapolis’ Westminster Presbyterian Church.

[2] My review of Wiman’s essay also draws upon the following: Wikipedia, Christian Wiman; Yale Univ. Institute of Sacred Music, Christian Wiman; Bill Moyers, Poet Christian Wiman on Faith , Love, and Cancer (Feb. 23, 2012); Jeter, Exclusive: Christian Wiman Discusses Faith as He Leaves World’s Top Poetry Magazine, Christianity Today (Jan.-Feb. 2013); Yezzi, Cries and Whispers, W.S.J. (April 19, 2013), ; Krista Tippett, Christian Wiman—A Call to Doubt and Faith, and remembering God (May 23, 2013) (includes audio of Wiman reading some of his poems); Kathleen Norris, Faith Healing, N.Y. Times (May 24, 2013); PBS, Christian Wiman Interview (Oct. 25, 2013), ; Stimpson, Review of Christian Wiman’s ‘My Bright Abyss: Meditation of a Modern Believer, Huff. Post (Mar. 24, 2014); Domestico, Being Prepared for Joy: An Interview with Christian Wiman, Commonweal (April16, 2014).

[3] Wiman has been a Visiting Professor of English at Northwestern University, which I suspect is the teaching position he references in the essay; the Jones Lecturer at Stanford University; and Visiting Scholar at Lynchburg College, all before assuming his current position at Yale’s Institute of Sacred Music.

[4] Presumably this a reference to 1 Timothy 4:10: “For to this end we toil and struggle, because we have our hope set on the living God, who is the Savior of all people, especially of those who believe.”

[5] His other recent books are Hard Night (2005); Ambition and Survival: Becoming a Poet (2007); and “Every Riven Thing” (2010). This Fall “Once in the West,” a poetry collection, will be published.

[6] The “Abyss” essay was retitled as “Love Bade Me Welcome” and published in his book, Ambition and Survival: Becoming a Poet.

Judging on the U.S. Court of Appeals for the D.C. Circuit

The U.S. Court of Appeals for the District of Columbia Circuit, the second most important court in the U.S., is once again back in the news.

The immediate issue is the need for the U.S. Senate to confirm President Obama’s appointment of Srikanth “Sri” Srinivasan to one of the four vacancies on this Court.[1]

Srinivasan has a blue-chip resume. Currently he is the Principal Deputy Solicitor General of the U.S. and has argued 20 cases before the U.S. Supreme Court. He previously clerked for the Reagan-appointed Supreme Court Justice Sandra Day O’Connor. He also served with distinction in the Justice Department for both Presidents George W. Bush and Barack Obama and with the Washington, D.C. office of the eminent law firm of O’Melveny & Myers. A native of India, Srinivasan grew up in Kansas and earned a bachelor’s degree in 1989 from Stanford University and a J.D./M.B.A. degree in 1995 from its Law School and Graduate School of Business.

On April 10th Srinivasan had an uneventful 90-minute hearing before the Senate Judiciary Committee. His nomination is strongly supported by the Obama Administration and by noted conservative and liberal lawyers and academics.

The next step is for the Committee to vote on whether to send this nomination to the Senate floor for a vote. At least one of the eight Republican members of the Committee, Orrin Hatch, said he was impressed and would support such a motion. Assuming all 10 Democratic Committee members support such a motion, then it should be approved by a vote of at least 11 to 7. Then the whole Senate would vote on the nomination unless there was a filibuster of same.[2]

Perhaps the partisan wrangling over appointments to this Court is overwrought.

Evidence for a less partisan view of this Court is found in its April 5th Presentation Ceremony of the Portrait of D.C. Circuit Senior Judge David B. Sentelle, who was appointed to the Court in 1987 by Republican President Ronald Reagan. For remarks of appreciation from his own Court, Judge Sentelle chose Circuit Judge David S. Tatel, who was appointed by Democratic President Bill Clinton in 1994.[3]

Judge Tatel commented on the apparent oddity of his speaking for Judge Sentelle. Tatel said, “those who believe that judges’ decisions are driven by ideology may wonder why Dave [Sentelle] asked me to speak. After all, you would be hard pressed to find two judges with more different backgrounds, different worldviews, different beliefs, and, indeed, different shoes than we two Davids. But those who focus on these differences do not understand what it means to be a federal judge, do not understand this Court’s long tradition of collegiality, and surely do not understand Dave Sentelle.” Tatel continued, “when Judge Sentelle and I sit together, we very rarely disagree.” In “the nineteen years we’ve served together, we have disagreed less than 3% of the time.”

The answer to why there had been so little disagreement, according to Judge Tatel, was “Judge Sentelle’s decisions are driven not by personal preferences, but by a conscientious application of the principles and texts that bind us. Uncommonly peppered with the hallmarks of restrained decision-making, his opinions are full of phrases like, ‘If the intent of Congress is clear, that is the end of the matter’; ‘Courts must accord substantial deference to Congress’s findings’; ‘We are bound by the decisions of the Supreme Court’; ‘One three judge panel has no authority to overrule another’; ‘We owe agency fact-finding great deference’; ‘Issues not raised on appeal are deemed waived’; and ‘Absent jurisdiction we are powerless to act.’ For Judge Sentelle, “the tenets of judicial restraint are not mere slogans to be invoked when convenient; they are the building blocks of all that we do here.”

Judge Tatel also complimented Judge Sentelle’s judicial opinions. According to Tatel, Judge Sentelle “crafts opinions that treat every one of his colleagues, as well as every citizen who appears before us, with respect and a true generosity of spirit. Flipping through his opinions, including his dissents, you’ll find no sarcasm, no belittling remarks, no callous dismissals. This is, after all, a United States Court, and Judge Sentelle’s opinions are a credit to the dignity of this institution. In his five years as our Chief Judge, Dave has protected our proudly nurtured tradition of collegiality.”

In conclusion, Judge Tatel said, Judge Sentelle is “a man who has the greatest respect for the office he holds and an abiding dedication to a life of service and the rule of law.”

[1] President Obama’s only other eminently qualified nominee to the court, Caitlin J. Halligan, was named in 2010 to fill the vacancy created by the elevation of John G. Roberts Jr. to the Supreme Court. In March of this year Republicans for a second time mounted a filibuster that prevented the Senate from voting on Ms. Halligan, and President Obama granted her request to withdraw her nomination saying, “This unjustified filibuster obstructed the majority of Senators from expressing their support. I am confident that with Caitlin’s impressive qualifications and reputation, she would have served with distinction.” Her nomination was supported by the New York Times and Washington Post .

[2] If the Srinivasan nomination is filibustered , then Senate Majority Leader Harry Reid has threatened to modify the Senate Rules to bar such filibusters on at least judicial nominees. I frequently have voiced my strong disapproval of the filibuster rule and practice.

[3] Judge Tatel is a University of Chicago Law School classmate and friend of mine, and I have written a post about his opinion for the D.C. Circuit in the Voting Rights Act case now pending in the U.S. Supreme Court.