Still an Americanist Rag

I have to confess that I have never cared for Joseph Bottum. His writing when he was at First Things regularly struck me as overly ambivalent. In fact, I stopped frequenting First Things' websites because it became difficult to discern what the publication was actually doing.

Now Bottum is out at First Things (something I hadn't even known, see supra). And he's appeared instead in the editorial pages at the flagship of Americanist rags, Commonweal. What has Bottum come to tell us? "That [t]here is no coherent jurisprudential argument against [same-sex 'marriage']."

Well, that's a surprise to a lot of people who have gone to lengths to articulate a long list of such arguments, I'm sure. Perhaps Bottum means "there is no winning jurisprudential argument against same-sex 'marriage.'" But that's a very different statement. Lots of losing arguments are coherent, and a fair number of losing arguments are right.

Bottum goes on to insist that American Catholics "should accept state recognition of same-sex marriage simply because they are Americans." Yes, Mr. Bottum is here to tell us that being an American dictates what you should believe, fiddlesticks to popes, bishops, and the CDF. Down with popery indeed. Leo XIII is dead, after all.

If Bottum's essay isn't craven Americanist nonsense, nothing is. 

I would say one should go read it, but I provide the link mainly in hopes of creating unfavorable google results. Unless one is interested in the sentimental details of Mr. Bottum's friendships, his thoughts on the USCCB's bad public-relations skills, his poor opinion of John Finnis, or his belief that what really matters is that lots of people like the Catholic Church, the essay is not worth the time.

Do not think that I came to send peace upon earth: I came not to send peace, but the sword.

should accept state recognition of same-sex marriage simply because they are Americans - See more at: http://www.commonwealmagazine.org/things-we-share#sthash.nnC3Zenm.dpuf

should accept state recognition of same-sex marriage simply because they are Americans - See more at: http://www.commonwealmagazine.org/things-we-share#sthash.nnC3Zenm.dpuf

There is no coherent jurisprudential argument against it—no principled legal view that can resist it - See more at: http://www.commonwealmagazine.org/things-we-share#sthash.nnC3Zenm.dpuf

There is no coherent jurisprudential argument against it—no principled legal view that can resist it - See more at: http://www.commonwealmagazine.org/things-we-share#sthash.nnC3Zenm.dpuf

There is no coherent jurisprudential argument against it—no principled legal view that can resist it - See more at: http://www.commonwealmagazine.org/things-we-share#sthash.nnC3Zenm.dpuf

There is no coherent jurisprudential argument against it—no principled legal view that can resist it - See more at: http://www.commonwealmagazine.org/things-we-share#sthash.nnC3Zenm.dpuf

Intiative Proponent Standing

One of the biggest consequences of the Hollingsworth opinion is that it provides a road map to short-circuiting initiative measures. All the state executive need do is decline to defend the measure in federal court, and the challenger will win by default. That poses a substantial challenge to those who regard the initiative as a valuable bulwark against government officials beholden to interests other than the public's.

I think the answer to those inquiries is on page 14 and 15 of the Hollingsworth opinion: if you want proponents to be able to defend initiative measures in federal lawsuits despite the governor's preference to the contrary, you need a statute deputizing the proponent for that purpose, akin to the statutes authorizing private attorneys general in qui tam actions, complete with some modicum of control and a fee-indemnification provision.

Look at what the Court says:

We recognized [in Arizonans for Official English] that a legislator authorized by state law to represent the State’s interest may satisfy standing requirements . . ., but noted that the Arizona committee and its members were “not elected representatives, and we [we]re aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” 

 [The California Supreme] Court never described petitioners as “agents of the people,” or of anyone else. . . . All that the California Supreme Court decision stands for is that, so far as California is concerned, petitioners may argue in defense of Proposition 8. This “does not mean that the proponents become de factopublic officials”; the authority they enjoy is “simply the authority to participate as parties in a court action and toassert legal arguments in defense of the state’s interest in the validity of the initiative measure.” That interest is by definition a generalized one, and it is precisely because proponents assert such interest that they lack standing under our precedents.

And petitioners are plainly not agents of the State—“formal” or otherwise. [Petitioners claimed below that i]t was their “unique legal status” as officialproponents---not an agency relationship with the people of California---that [provided them with standing].

More to the point, the most basic features of an agency relationship are missing here. Agency requires more than mere authorization to assert a particular interest. . . .

If the relationship between two persons is one of agency . . . , the agent owes a fiduciary obligation to the principal.” But petitioners owe nothing of the sort to the people of California.

Finally, the California Supreme Court stated that “[t]he question of who should bear responsibility for any attorney fee award . . . is entirely distinct from the question” before it. But it is hornbook law that “a principal has a duty to indemnify the agent against expenses and other losses incurred by the agent . . ." If the issue of fees is entirely distinct from the authority question, then authority cannot be based on agency.

Hollingsworth v. Perry, __ U.S. __, No. 12–144, slip op. at 14--16 (2013) (citations omitted).

Ouroboros

The ouroboros is the image from ancient mythology of a snake consuming its own tail. I note it here because I can never remember the word.

Fr. Longnecker on the Immigration Act of 1924

Fr. Longnecker, the South Carolina priest and convert from evangelicalism who writes the Standing on My Head blog (which apparently has been absorbed by the internet amoeba of vapid religious prose, patheos.com), has not technically voiced his support for the Johnson-Reed Act. But he doesn't particularly care for your grubby, knuckle-dragging, Romish ancestors with their bad genes and undemocratic racial dispositions.

The comment boxes at the Internet Amoeba of Vapid Religious Prose are onerously regulated by software I dislike, so I'll make a note on Fr. Longnecker's point here. To wit:

Fiddlesticks. Catholics in every age have abjured the Faith because the prince of this world tempted them to do so through his assorted allurements, of which wealth, social acceptance, and worldly interests are but notable examples. They did so in unprecedented numbers in the West during the twentieth century because their priests, bishops, and school teachers stopped telling them to do otherwise. The role that the relationship between their culture and the Faith played was merely that they continued (and in some cases still continue) to call themselves "Catholic" long after they ceased to be such in any but the strictest canonical sense.

These people who Fr. Longnecker thinks were so misguided---these Poles, Irishmen, Slovaks, Czechs, Italians, and Irishmen---were the faithful. There never was any Catholicism other than the Catholicism that they, and their confreres in other societies, lived out within the milieu of their cultural experience. Of course the faith shaped their culture and became a part of it: the cultural expression of the faith, in immigrant communities in the U.S. and back in Europe, was the residue of a civilization that had been transformed by the Church. This is precisely what the Faith's role vis-a-vis the world is supposed to be: if the Church is something to which we belong on days other than Sunday, it must play a seminal role in defining our other activities, our meals, our celebrations, and our mourning.

The decay of cultural Catholicism proceeded along with the decay of Catholicism in the United States and the West generally. The demise of those communities was a feature of the self-immolation of American Catholicism. But they were not the cause of the disaster, nor even the differentia of the occurrence. They were merely victims, along with the rest, of worldliness and foolishness.

The sweeping criticism of the way in which an entire civilization lived the Faith is absurd. It is beyond absurd when contrasted unfavorably with the supposed virtue of assorted bands of Dutch heretics. And coming from a WASP convert, who lives in a part of the country (one, mind you, of which I am quite fond) that has about as many yak farms as old ethnic Catholic enclaves, it resembles nothing so much as mere chatter from the peanut gallery. Fr. Longnecker has gained wide respect for his often insightful commentary. But his foray into internecine warfare on a topic on which he appears poorly equipped to comment---and in which his rhapsodic praise of his heretic ancestors raises all manner of questions---is lamentable.

For another critique, may I recommend The Bellarmine Forum.

Inconceivable

There is some confusion about whether this subsection begins, “A corporation shall have power to indemnify ...” or “A corporation may indemnify ...”. As originally enacted, § 145(a) contained the phrase “shall have power”. 56 Del. Laws 50, § 1 at 170 (1967). According to the annotations in the Delaware Code Annotated (and confirmed by a review of the legislative records since 1967), § 145(a) has never been amended. See 8 Del.Code Ann. tit. 8, § 145(a) (1991 & 1995 Supp.).

Nevertheless, the Delaware Code Annotated, a private compilation by the Michie Company of all Delaware legislative acts, at some point began using the phrase “may” in place of “shall have power”. See 8 Del.Code Ann. tit. 8, § 145(a) (1974). We have not been able to explain this non-legislative change in statutory language. The Delaware Corporation Law Annotated, published by the Corporation Trust Company, continues to use the phrase “shall have power”. Del. Corp. L. Ann. § 145(a) (20th ed. Corp.Trust.Co.1991).

One treatise uses the phrase “shall have power”, see Ernest L. Folk, III, et al., Folk on the Delaware General Corporation Law at 145:1 (3d ed.1994), while another uses “may”. See 5 R. Franklin Balotti & Jesse A. Finkelstein, The Delaware Law of Corporations and Business Organizations at 100 (1990 & 1993 Supp.) (“Balotti & Finkelstein”). The parties to this appeal perpetuate the confusion: their joint appendix contains a version of § 145(a) that says “shall have power”, but one of the briefs quotes a version that says “may”.

When there is a conflict between an original enactment of the Delaware Legislature and the codification of the law, the original enactment controls. Elliott v. Blue Cross & Blue Shield, 407 A.2d 524, 528 (Del.1979); Kimmey v. Farmers Bank, 373 A.2d 569, 570 (Del.1977). We therefore employ the Legislature's version of § 145(a), which says “shall have power”.

Waltuch v. Conticommodity Servs., Inc., 88 F.3d 87, 90 n.6 (2d Cir. 1996) (discussing what 8 Del.Code § 145(a) actually says).

"Bargain and Sell"

One invariably sees the phrase "A bargains and sells to B" in deeds. Equally invariably, nobody handling such a deed can explain why the deed says "bargain and sell." Because they do not understand the words, having never bothered to learn the nature, purpose, or origin of their presence, people simply assume they are superfluous. It is fashionable in many circles to deride such phrasings as merely an abundance of surplusage.

Au contraire. The Georgia Supreme Court explains:

Blackstone says of the deed of bargain and sale, that it “is a kind of real contract, whereby the bargainor, for some pecuniary consideration, bargains and sells, that is, contracts to convey, the land to the bargainee, and becomes by such a bargain, a trustee for, or seized to the use of, the bargainee: and then the statute of uses completes the purchase; or, as it hath been well expressed, the bargain first vests the use, and then the statute vests the possession.” (2 Black. Com. 338.) So, Cruise says; “The proper and technical words of this conveyance, are, “bargain and sell;” but any other words that would have been sufficient to raise a use upon a valuable consideration, before the statute, are now sufficient to constitute a good bargain and sale.”

Dudley’s Lessee v. Bradshaw, 29 Ga. 17, 22–23 (1859). 

Thus, the contract for the sale of land was the bargain, which created (as it still does) an equitable title in the purchasor. The sale was the legal result, created by the Statute of Uses (27 Hen. VIII c. 10), that followed, of the legal title vesting in the purchasor as a result of the bargain. So the words are not surplusage: they describe the conveyance of two different rights, distinguishing a deed from a trust instrument. Once again, our ancestors prove that they were more intelligent than we like to believe.

 

The Vatican Press Office Must Be Abolished

The embarrassing and confusing spectacle of Fr. Frederico Lombardi, S.J., tottering out and issuing bizarre statements about the nature of Church teaching and Canon Law simply must come to an end. What purpose is served by manufacturing mountains of vacuous papers stamped by a Vatican office? Surely the answer is "none whatsoever."

The two Vatican Councils speak at substantial length, if not with astonishing pellucidity, on the various forms in which the Church's Magisterium acts. "Press conferences by Jesuits" are not on the list. The Church has laws. She has liturgical texts. She has papal decrees, encyclicals, dogmatic constitutions, and various concilar documents. She does not need press releases. Publish a schedule of Mass and confession times, a number to call to schedule a baptism, and be done with it. If someone wants to know what the Church says on further matters, let him look to where the Church has already spoken. All the present state of affairs does is make bad situations worse.