Laurence Tribe, long-time professor of Constitutional law at Harvard University, may be the weightiest voice in favor of a "living Constitution"—at least the weightiest voice in the public eye. He has also written an entire book in defense of abortion. It is therefore instructive to see the quality of reasoning that he brings to bear on partial-birth abortion.
http://www.now.org/issues/abortion/dxanalysis.html
1. "This memorandum addresses the constitutionality of…a proposed federal statute that would criminalize a certain abortion procedure whether or not the fetus is viable, and without making any exception for the health of the mother."
Make a careful note of the underlying assumption. The assumption is that Congress is subservient to the courts. It is up to the courts to determine whether an act of Congress is constitutional or not.
This assumption governs the entire discussion. No supporting argument is offered for this assumption.
Now the reason that Dr. Tribe offers no argument in defense of this assumption is that it represents the current status quo. So he can safely take it for granted.
But it is important to keep in mind that this assumption is by no means unquestionable. It is striking that those who are so fond of invoking Jefferson on church/state separation fall strangely silent regarding his views on judicial review:
"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches."
—Thomas Jefferson to W. H. Torrance, 1815. ME 14:303
"But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force."
—Thomas Jefferson to William Johnson, 1823. ME 15:451
"But, you may ask, if the two departments [i.e., federal and state] should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best."
—Thomas Jefferson to John Cartwright, 1824. ME 16:47
"The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."
—Thomas Jefferson to Abigail Adams, 1804. ME 11:51
"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."
—Thomas Jefferson to William C. Jarvis, 1820. ME 15:277
"In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."
—Thomas Jefferson to Spencer Roane, 1819. ME 15:212
"This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt."
—Thomas Jefferson to Edward Livingston, 1825. ME 16:114
"My construction of the Constitution is . . . that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal."
—Thomas Jefferson to Spencer Roane, 1819. ME 15:214
For more on this subject, cf. L. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford 2004).
Anyone conversant with the current state of the debate will instantly recognize that Jefferson is raising the very same objections to judicial activism that are entertained today.
Indeed, The Constitution Restoration Act of 2004, presently making its way through Congress, would limit the jurisdiction of Federal courts in certain cases and promote federalism, under the power vested in Congress by article III, section 1 of the Constitution.
2. Consider what Tribe's hermeneutical legerdemain has brought us to. He says, in all seriousness, "that fetal viability is the constitutionally significant event, ad the bill's barely-concealed attempt to apply an altogether different standard is flatly inconsistent with the Liberty Clause of the Fifth and Fourteenth Amendments as construed by the Supreme Court in Casey."
Now is that just beautiful? We really need to pause a while lest this get by us too fast. We need to take in the full force of what has just been said. He is telling the reader that the Fifth and Fourteenth Amendments address the question of fetal viability.
Let us, for just a moment, remind ourselves of what these Amendments actually say:
Amendment V
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
"Fetal viability"? Hmm. Do you see anything in the Fifth Amendment about "fetal viability"? Okay, let's give the Fourteenth Amendment a try.
Amendment XIV
Do you find anything about "fetal viability under section 1?
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
No, nothing there. What about section 2?
"Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state."
No, nothing there, either. Okay, it must be hidden away somewhere in section 3.
"Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."
Gee, did I miss something? What about 4-5?
"Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void."
"Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
It's not just that there is no express reference to the right of an abortion, much less fetal viability, in the Bill of Rights. There is no implication to that effect.
There is nothing wrong with going beyond the ipsissima verba of the Constitution in the sense of either inferring a general principle from a special case, or inferring a special application from a general principle.
But that is not what is going on with Dr. Tribe. There is nothing in either the explicit or implicit propositions of the Constitution, much less the intent of the framers or the intent of the states that ratified the document, to purport a right of abortion in the text.
What you have, instead, is something like this: once upon a time there were states that banned birth-control devices. The Supreme Court didn't like those laws. So it cast about for a way to strike them down. It did this by first inferring a right of privacy in the Constitution. From this it then inferred a right to contraception. Once upon a time there were states that banned abortion. The Supreme Court didn’t like those laws, so it inferred the right to an abortion from the right to contraception. The next step is to infer all the possible undercutters or overriders to the right to an abortion—such as fetal viability, the life and health of the mother, &c.
Now the problem with this whole line of reasoning is that it has no basis in fact. And even if it did have a bit of factual anchorage to begin with, it weighs anchor as soon as it begins to draw inferences of inferences of inferences.
What you have is a fictive legal construct. The process of reasoning is much like a literary tradition, say the Star Trek franchise. Gene Roddenberry created a storybook world with certain customs and characters and scientific laws.
Someone who writes within the Star Trek tradition as a fixed frame of reference, moving forward or backward in time. Although Capt. Kirk had no mother or father in the series, yet the character would have to have a mother and father, so you could give him and father and mother, and create a backstory out of that.
All we're doing here is to toy with the incidental implications of abstract ideas. Even if the ideas had a hook in reality, they soon take on a life of their own through mutual association.
And this is fine as long as you don't forget that what we have here is the natural play of the imagination. But to reify this free-floating, deductive chain as though it bore any sort of correspondence to what is right or wrong or true or false with the world, when it is—at most—at several removes from the real world, by some six degrees of separation, is—at very best—delusional, and—at worst—sheer flimflam dudded up in judicial robes. "
The house that Jack built" makes for a good bedtime story, but bad jurisprudence. For the law deals with real people—flesh-and-blood victims and victimizers.
We need to take a few steps back and slap our face with cold water. Words mean what they meant—which is to say, what the author meant them to mean. And words do not define reality. They have no objective, n-ordered entailments for the world at large. Rather, words and ideas have referential power only insofar as they are true to the world they represent. The world confers whatever constantive force they enjoy, not vice versa.
You cannot make a meal from a recipe alone. The recipe does not create its own ingredients. To cook up a new set of rights from the Bill of Rights by toying with merely possible consequences and unintended associations or is to substitute a paper steak for the real thing.
And if that were not bad enough, much of what passes for judicial review doesn't even rise to the level of a merely possible implication, but is only consistent with the imported premise. In what sense does the "Liberty Clause" implicate the right to an abortion? Is the reasoning that if you ban abortion, you deprive a mother of the freedom to choose an abortion? That tautology is, of course, true, but by the same token, if you criminalize bank robbery, then that infringes on the freedom of bank robbers.
And if we're going to apply such loose logic, what about depriving the baby of life? Remember the wording of the "Liberty Clause": nor shall any state deprive any person of life, liberty, or property, without due process of law." If an abortionist can apply "liberty" to the case of the mother, why can an anti-abortionist not apply "life" to the case of the child? Pretty selective prooftexting.
3. Tribe begins by faulting the bill for failing to make provision for the life and health of the mother. But he then glosses the "health" of the mother to cover "all factors—physical, emotional, psychological, familial, and the woman's age." In other words, there are no restrictions on abortion, for the definition of a woman's "health" can be extended and attenuated to any degree necessary to necessitate any abortion whatsoever. Abortion anytime, anywhere, for any reason.
This especially exposes the insincerity of his saying that Congress has no business to butt in given the "ability of the States to enact laws of their own dealing with precisely the same subject matter," for by his lights, the judiciary is superior to the legislative branch, either at the state or federal level; and that, what is more, the legislative branch has absolutely no discretion in this area for the Supreme Court has settled the matter once and for all time.
4. Tribe takes exception to the wording of the bill. He dubs this "a peculiar bit of alchemy" because "the terms ‘fetus' and ‘infant' are interchangeable," which he characterizes as a "novel definition of 'infant.'"
Well, according to the Oxford English dictionary, an infant is "a child during the earliest period of life (or still unborn)." And according to the 1611 (KJV) rendering of Job 3:16, an infant who never saw the light of day is in synonymous parallelism with a stillborn child. So it looks like Tribe is working with a novel definition of novelty.
Actually, a more egregious specimen of semantic alchemy occurs when Tribe repeated treats "woman" and "mother" as interchangeable. But these two words have different meanings and connotations. Every mother is a woman, but every woman is not a mother.
The distinction is not inconsequential. It is easier to depersonalize the abortion debate if you talk about women in general in relation to an anonymous fetus, for a woman qua woman has no relationship to any particular fetus. By contrast, a mother has a very special relationship to the child in her womb.
It is also striking how the abortionist will attempt to personalize the plight of the woman while endeavoring, in equal measure, to depersonalize her baby by the use of clinical terminology like "the fetus." Consider the tonal difference between "mother and child" as over against "woman and fetus."
5. Like every other abortionist, Tribe regularly resorts to euphemisms. He tries to cast this as a debate over "reproductive freedom" or "reproductive destiny."
Really now, is anyone denying the right of a woman to have a baby? Of course not!
Moreover, who is denying a woman the right not to have a baby? No one that I'm aware of.
Rather, the woman has already exercised her freedom of choice in consenting to engage in sexual reproduction. And guess what. When a woman engages in sexual reproduction, she sometimes gets pregnant!
So what Tribe is really saying is that a woman cannot be trusted with the consequences of her chosen lifestyle. How is this really any different from the old fashioned view that a woman could not enter into a binding contract without the approval of her husband or father or brother?
6. Dr. Tribe has a disconcerting habit of oscillating between moralistic and legalistic arguments. But these are not on a par. Legalistic arguments are based on precedent and the principle of stare decisis, as when he cites Roe, Doe, Danforth, Thornburgh, and Casey.
But moralistic arguments are independent of common law, as when he talks about "experimenting" with the life and health of the mother or "trading" her welfare for the welfare of the child. This way of speaking suggests that something ought to be law because it is morally incumbent, and not incumbent because it is a matter of law and law alone.
It is ethically unseemly, to say the least, to make the fate of the unborn child turn on merely legalistic maneuvers, erected on one false or question-begging premise upon another.
Tribe finds it morally arbitrary to make the right of the unborn baby hinge on its physical location. Of course, a prolifer would regard the child as sacrosanct at every stage of gestation. But, beyond that, it is no less arbitrary to say that a child might have a right to life in 1972, but have no right to life in 1973.
Just as artificial is the criterion of fetal viability. It should be unnecessary to point out that a pre-term baby is not supposed to be viable outside the womb. That is what the womb is for. How long can Mr. Tribe survive without food, water, warmth, or oxygen?
In the same vein, Tribe talks about the "undue burden" placed on a mother's wellbeing. This is a very unnatural way of characterizing a natural condition. One might as well say that having to walk on both feet places an undue burden on a biped.
Tribe talks about abortion as "an obviously tragic procedure that everyone wishes were never necessary." But this is a straw man argue. Most legal abortions are not medically necessary. A tragic choice is a moral dilemma that is forced upon one.
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Thursday, July 29, 2004
Tuesday, July 27, 2004
The plastic pearl of great price
Ask a Mormon missionary how anyone can know that Mormonism is true, and he'll refer you to the following statement:
"And when ye shall receive these things, I would exhort you that ye would ask God, the Eternal Father, in the name of Christ, if these things are not true; and if ye shall ask with a sincere heart, with real intent, having faith in Christ, he will manifest the truth of it unto you, by the power of the Holy Ghost" (Moroni 10:4).
This calls for a number of comments:
i) A Christian is only at liberty to pray a Christian prayer—a Trinitarian prayer. Any other prayer is idolatrous. Although this prayer is formally Christian, inasmuch as it makes use of traditional terminology, Mormon theology defines the persons very differently than does the Bible.
ii) This prayer is question-begging. To what "God" would we be praying? Only the true God could truthfully answer this prayer, so unless we know in advance that this prayer is addressed to the true God, it assumes what it needs to prove.
iii) Not everything is open to prayer. I don't have the right to ask God if it's okay for me to have an affair with another man's wife. Praying over the matter does not confer any moral warrant on adultery. The Bible does not authorize prayer as a short-cut to verify what I believe or justify what I do.
There is, however, a deeper objection to this appeal. For the Mormon missionary is giving a different answer to verify Mormonism that Joseph Smith himself has given. Now, if Joseph Smith is indeed a true prophet of God who restored the lost Gospel, it only seems fair to judge Mormonism by its founder's own methodology. So let us measure Mr. Smith by his own yardstick.
This can be found in a little work entitled "Extracts from the History of Joseph Smith, the Prophet." I have a copy of this, bound with The Book of Mormon, Doctrine & Covenants, and The Pearl of Great Price, published by the LDS (1978).
Smith begins by explaining his perplexity over doctrinal diversity. "Some were contending for the Methodist faith, some for the Presbyterian, and some for the Baptist" (2:5).
"So great were the confusion and strife among the different denominations, that it was impossible for a person young as I was, and so unacquainted with men and things, to come to any certain conclusion who was right and who was wrong" (2:8).
"Who of all these parties are right; or, are they all wrong together?" (2:10).
"Unless I could get more wisdom than I then had, I would never know; for the teachers of religion of the different sects understood the same passages of scripture so differently as to destroy all confidence in settling the question by an appeal to the Bible" (2:12).
Now, this reaction is perfectly understandable, but it calls for a few comments:
i) By his own admission, Smith was confused because he was young and ignorant. But the solution to that is not private revelation, but education.
ii) Doctrinal diversity is nothing new. In 1C Judaism you had Pharisees and Sadducees, Hillelites and Shamaites, Zealots, Essenes, and Philonic Platonists, to name a few.
Yet that doesn't prevent Jesus and the Apostles from adjudicating a question by direct appeal to Scripture. They did this all the time in debate with various Jewish groups and schools of that. Some interpretations make more sense than others. It's as simple as that. You study both sides of a debate and decide for yourself which side makes the best case for its position. Which side has the better of the argument? Not all reasons are equally good.
iii) Who said that we have to be equally certain about everything? After all, everything is not equally important. There are degrees of certainty and doubt.
iv) Moreover, the Mormonism has had its own history of internal strife. After Joseph Smith was killed in a shootout, there was a fight over succession, resulting in a split between those who followed his son and those who followed Brigham Young. Then you have a number of breakaway polygamist sects. And you also have a liberal/conservative divide within LDS ranks. So there are plenty of splitter-groups that all lay claim to be true to Mormonism.
Joseph Smith then appeals to Jas 1:5 to break out of this hermeneutical circle (2:11). But there are two things wrong with this appeal:
i) If, according to Smith, questions cannot be settled by direct appeal to Scripture, due to the diversity of interpretations, then how can Smith appeal to Jas 1:5 to justify his own action?
Why is it valid for him to appeal to Scripture, but invalid for the Baptist or Methodist or Presbyterian to do the same? What warrant does Mr. Smith have for such a double standard?
ii) If you read the way in which James describes the nature of wisdom, he is not talking about private revelation, but sanctified common sense (Jas 3:13,17).
He then tells us about an angelic apparition, during which all the Christian denominations were condemned as "corrupt" and "abominable" (2:19). But why should the reader believe that Mr. Smith was ever privy to this apparition? Why take his word for it? He had no witnesses. And it is not as though he was a man of sterling character. Rather, he had a reputation as a dabbler in the occult—in particular, a crystal-gazer. This is exactly what we'd expect of a religious charlatan.
But, assuming, for the sake of argument, the apparition was genuine, why assume that it was divine rather than diabolical? The Devil appeared to Adam and Eve. The Devil appeared to Jesus. Zechariah had visions of the Devil, as did John the Revelator.
Moving ahead, Mr. Smith records a later angelic apparition, in which he is informed, with respect to Joel 2:28, "that this was not yet fulfilled, but was soon to be." But according to Acts 2, this prophecy was fulfilled on the day of Pentecost.
Finally, Mr. Smith describes his "translation" of the Book of Abraham from the original Egyptian:
"I went to the city of New York, and presented the characters, which had been translated, with the translation thereof, to Prof. Charles Anthon, a gentleman celebrated for his literary attainments. Professor Anthon stated that the translation was correct, more so than any he had before seen translated from the Egyptian…He gave me a certificate, certifying to the people of Palmyra that they were true characters, and that the translation of such of them as had been translated was also correct" (2:64).
Let us be crystal clear on what this claim amounts to: (i) Smith made an "accurate" translation of the Book of Abraham from the original Egyptian text; (ii) Smith had this translation verified by Prof. Anthon, the orientalist at Columbia University.
Thus, Joseph Smith is staking his own veracity on the confirmation and corrobortion of Prof. Anthon. This is the evidence he is giving the reader to credit his prophetic claims. But when Prof. Anthon got wind of this appeal, he wrote a debunking the appeal in toto:
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http://www.utlm.org/onlineresources/anthonletter.htm
New York, Feb. 17, 1834
Dear Sir –
I received this morning your favor of the 9th instant, and lose no time in making a reply. The whole story about my having pronounced the Mormonite inscription to be "reformed Egyptian hieroglyphics" is perfectly false. Some years ago, a plain, and apparently simple-hearted farmer, called upon me with a note from Dr. Mitchell of our city, now deceased, requesting me to decypher, if possible, a paper, which the farmer would hand me, and which Dr. M. confessed he had been unable to understand. Upon examining the paper in question, I soon came to the conclusion that it was all a trick, perhaps a hoax. When I asked the person, who brought it, how he obtained the writing, he gave me, as far as I can now recollect, the following account: A "gold book," consisting of a number of plates of gold, fastened together in the shape of a book by wires of the same metal, had been dug up in the northern part of the state of New York, and along with the book an enormous pair of "gold spectacles"! These spectacles were so large, that, if a person attempted to look through them, his two eyes would have to be turned towards one of the glasses merely, the spectacles in question being altogether too large for the breadth of the human face. Whoever examined the plates through the spectacles, was enabled not only to read them, but fully to understand their meaning. All this knowledge, however, was confined at that time to a young man, who had the trunk containing the book and spectacles in his sole possession. This young man was placed behind a curtain, in the garret of a farm house, and, being thus concealed from view, put on the spectacles occasionally, or rather, looked through one of the glasses, decyphered the characters in the book, and, having committed some of them to paper, handed copies from behind the curtain, to those who stood on the outside. Not a word, however, was said about the plates having been decyphered "by the gift of God." Every thing, in this way, was effected by the large pair of spectacles. The farmer added, that he had been requested to contribute a sum of money towards the publication of the "golden book," the contents of which would, as he had been assured, produce an entire change in the world and save it from ruin. So urgent had been these solicitations, that he intended selling his farm and handing over the amount received to those who wished to publish the plates. As a last precautionary step, however, he had resolved to come to New York, and obtain the opinion of the learned about the meaning of the paper which he brought with him, and which had been given him as a part of the contents of the book, although no translation had been furnished at the time by the young man with the spectacles. On hearing this odd story, I changed my opinion about the paper, and, instead of viewing it any longer as a hoax upon the learned, I began to regard it as part of a scheme to cheat the farmer of his money, and I communicated my suspicions to him, warning him to beware of rogues. He requested an opinion from me in writing, which of course I declined giving, and he then took his leave carrying the paper with him. This paper was in fact a singular scrawl. It consisted of all kinds of crooked characters disposed in columns, and had evidently been prepared by some person who had before him at the time a book containing various alphabets. Greek and Hebrew letters, crosses and flourishes, Roman letters inverted or placed sideways, were arranged in perpendicular columns, and the whole ended in a rude delineation of a circle divided into various compartments, decked with various strange marks, and evidently copied after the Mexican Calendar given by Humboldt, but copied in such a way as not to betray the source whence it was derived. I am thus particular as to the contents of the paper, inasmuch as I have frequently conversed with my friends on the subject, since the Mormonite excitement began, and well remember that the paper contained any thing else but "Egyptian Hieroglyphics." Some time after, the same farmer paid me a second visit. He brought with him the golden book in print, and offered it to me for sale. I declined purchasing. He then asked permission to leave the book with me for examination. I declined receiving it, although his manner was strangely urgent. I adverted once more to the roguery which had been in my opinion practised upon him, and asked him what had become of the gold plates. He informed me that they were in a trunk with the large pair of spectacles. I advised him to go to a magistrate and have the trunk examined. He said the "curse of God" would come upon him should he do this. On my pressing him, however, to pursue the course which I had recommended, he told me that he would open the trunk, if I would take the "curse of God" upon myself. I replied that I would do so with the greatest willingness, and would incur every risk of that nature, provided I could only extricate him from the grasp of rogues. He then left me.
I have thus given you a full statement of all that I know respecting the origin of Mormonism, and must beg you, as a personal favor, to publish this letter immediately, should you find my name mentioned again by these wretched fanatics.
Yours respectfully, CHAS. ANTHON.
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On these grounds alone, Joseph Smith is a false prophet by his own chosen standard of reference. He is the one who volunteered this evidence in substantiation of his prophetic claims. If, therefore, Prof. Anthon expressly contravened that very claim, then the evidence is falsified by Mr. Smith's stated rules of evidence. This is, all by itself, sufficient to prove him an outright fraud.
But even that is not the end of the story. For since that time, a number of Egyptologists, have had occasion to compare the Book of Abraham against facsimiles of the Egyptian original. As Gleason Archer, who is, himself, a student of the language, has expressed the state of scholarly opinion, "Their finding was that not a single word of Joseph Smith's alleged translation bore any resemblance to the contents of this document," A Survey of Old Testament Introduction (Moody 1994), 555. Cf. C. Larson, By His Own Hand Upon Papyrus: A New Look at the Joseph Smith Papyri (Grand Rapids 1992).
So Joseph Smith has been weighed in a scale of his own choosing, and found to be sadly and wholly wanting. He has furnished both the evidence and the rules of evidence for his own indictment and conviction. It remains for us to pass sentence.
"And when ye shall receive these things, I would exhort you that ye would ask God, the Eternal Father, in the name of Christ, if these things are not true; and if ye shall ask with a sincere heart, with real intent, having faith in Christ, he will manifest the truth of it unto you, by the power of the Holy Ghost" (Moroni 10:4).
This calls for a number of comments:
i) A Christian is only at liberty to pray a Christian prayer—a Trinitarian prayer. Any other prayer is idolatrous. Although this prayer is formally Christian, inasmuch as it makes use of traditional terminology, Mormon theology defines the persons very differently than does the Bible.
ii) This prayer is question-begging. To what "God" would we be praying? Only the true God could truthfully answer this prayer, so unless we know in advance that this prayer is addressed to the true God, it assumes what it needs to prove.
iii) Not everything is open to prayer. I don't have the right to ask God if it's okay for me to have an affair with another man's wife. Praying over the matter does not confer any moral warrant on adultery. The Bible does not authorize prayer as a short-cut to verify what I believe or justify what I do.
There is, however, a deeper objection to this appeal. For the Mormon missionary is giving a different answer to verify Mormonism that Joseph Smith himself has given. Now, if Joseph Smith is indeed a true prophet of God who restored the lost Gospel, it only seems fair to judge Mormonism by its founder's own methodology. So let us measure Mr. Smith by his own yardstick.
This can be found in a little work entitled "Extracts from the History of Joseph Smith, the Prophet." I have a copy of this, bound with The Book of Mormon, Doctrine & Covenants, and The Pearl of Great Price, published by the LDS (1978).
Smith begins by explaining his perplexity over doctrinal diversity. "Some were contending for the Methodist faith, some for the Presbyterian, and some for the Baptist" (2:5).
"So great were the confusion and strife among the different denominations, that it was impossible for a person young as I was, and so unacquainted with men and things, to come to any certain conclusion who was right and who was wrong" (2:8).
"Who of all these parties are right; or, are they all wrong together?" (2:10).
"Unless I could get more wisdom than I then had, I would never know; for the teachers of religion of the different sects understood the same passages of scripture so differently as to destroy all confidence in settling the question by an appeal to the Bible" (2:12).
Now, this reaction is perfectly understandable, but it calls for a few comments:
i) By his own admission, Smith was confused because he was young and ignorant. But the solution to that is not private revelation, but education.
ii) Doctrinal diversity is nothing new. In 1C Judaism you had Pharisees and Sadducees, Hillelites and Shamaites, Zealots, Essenes, and Philonic Platonists, to name a few.
Yet that doesn't prevent Jesus and the Apostles from adjudicating a question by direct appeal to Scripture. They did this all the time in debate with various Jewish groups and schools of that. Some interpretations make more sense than others. It's as simple as that. You study both sides of a debate and decide for yourself which side makes the best case for its position. Which side has the better of the argument? Not all reasons are equally good.
iii) Who said that we have to be equally certain about everything? After all, everything is not equally important. There are degrees of certainty and doubt.
iv) Moreover, the Mormonism has had its own history of internal strife. After Joseph Smith was killed in a shootout, there was a fight over succession, resulting in a split between those who followed his son and those who followed Brigham Young. Then you have a number of breakaway polygamist sects. And you also have a liberal/conservative divide within LDS ranks. So there are plenty of splitter-groups that all lay claim to be true to Mormonism.
Joseph Smith then appeals to Jas 1:5 to break out of this hermeneutical circle (2:11). But there are two things wrong with this appeal:
i) If, according to Smith, questions cannot be settled by direct appeal to Scripture, due to the diversity of interpretations, then how can Smith appeal to Jas 1:5 to justify his own action?
Why is it valid for him to appeal to Scripture, but invalid for the Baptist or Methodist or Presbyterian to do the same? What warrant does Mr. Smith have for such a double standard?
ii) If you read the way in which James describes the nature of wisdom, he is not talking about private revelation, but sanctified common sense (Jas 3:13,17).
He then tells us about an angelic apparition, during which all the Christian denominations were condemned as "corrupt" and "abominable" (2:19). But why should the reader believe that Mr. Smith was ever privy to this apparition? Why take his word for it? He had no witnesses. And it is not as though he was a man of sterling character. Rather, he had a reputation as a dabbler in the occult—in particular, a crystal-gazer. This is exactly what we'd expect of a religious charlatan.
But, assuming, for the sake of argument, the apparition was genuine, why assume that it was divine rather than diabolical? The Devil appeared to Adam and Eve. The Devil appeared to Jesus. Zechariah had visions of the Devil, as did John the Revelator.
Moving ahead, Mr. Smith records a later angelic apparition, in which he is informed, with respect to Joel 2:28, "that this was not yet fulfilled, but was soon to be." But according to Acts 2, this prophecy was fulfilled on the day of Pentecost.
Finally, Mr. Smith describes his "translation" of the Book of Abraham from the original Egyptian:
"I went to the city of New York, and presented the characters, which had been translated, with the translation thereof, to Prof. Charles Anthon, a gentleman celebrated for his literary attainments. Professor Anthon stated that the translation was correct, more so than any he had before seen translated from the Egyptian…He gave me a certificate, certifying to the people of Palmyra that they were true characters, and that the translation of such of them as had been translated was also correct" (2:64).
Let us be crystal clear on what this claim amounts to: (i) Smith made an "accurate" translation of the Book of Abraham from the original Egyptian text; (ii) Smith had this translation verified by Prof. Anthon, the orientalist at Columbia University.
Thus, Joseph Smith is staking his own veracity on the confirmation and corrobortion of Prof. Anthon. This is the evidence he is giving the reader to credit his prophetic claims. But when Prof. Anthon got wind of this appeal, he wrote a debunking the appeal in toto:
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http://www.utlm.org/onlineresources/anthonletter.htm
New York, Feb. 17, 1834
Dear Sir –
I received this morning your favor of the 9th instant, and lose no time in making a reply. The whole story about my having pronounced the Mormonite inscription to be "reformed Egyptian hieroglyphics" is perfectly false. Some years ago, a plain, and apparently simple-hearted farmer, called upon me with a note from Dr. Mitchell of our city, now deceased, requesting me to decypher, if possible, a paper, which the farmer would hand me, and which Dr. M. confessed he had been unable to understand. Upon examining the paper in question, I soon came to the conclusion that it was all a trick, perhaps a hoax. When I asked the person, who brought it, how he obtained the writing, he gave me, as far as I can now recollect, the following account: A "gold book," consisting of a number of plates of gold, fastened together in the shape of a book by wires of the same metal, had been dug up in the northern part of the state of New York, and along with the book an enormous pair of "gold spectacles"! These spectacles were so large, that, if a person attempted to look through them, his two eyes would have to be turned towards one of the glasses merely, the spectacles in question being altogether too large for the breadth of the human face. Whoever examined the plates through the spectacles, was enabled not only to read them, but fully to understand their meaning. All this knowledge, however, was confined at that time to a young man, who had the trunk containing the book and spectacles in his sole possession. This young man was placed behind a curtain, in the garret of a farm house, and, being thus concealed from view, put on the spectacles occasionally, or rather, looked through one of the glasses, decyphered the characters in the book, and, having committed some of them to paper, handed copies from behind the curtain, to those who stood on the outside. Not a word, however, was said about the plates having been decyphered "by the gift of God." Every thing, in this way, was effected by the large pair of spectacles. The farmer added, that he had been requested to contribute a sum of money towards the publication of the "golden book," the contents of which would, as he had been assured, produce an entire change in the world and save it from ruin. So urgent had been these solicitations, that he intended selling his farm and handing over the amount received to those who wished to publish the plates. As a last precautionary step, however, he had resolved to come to New York, and obtain the opinion of the learned about the meaning of the paper which he brought with him, and which had been given him as a part of the contents of the book, although no translation had been furnished at the time by the young man with the spectacles. On hearing this odd story, I changed my opinion about the paper, and, instead of viewing it any longer as a hoax upon the learned, I began to regard it as part of a scheme to cheat the farmer of his money, and I communicated my suspicions to him, warning him to beware of rogues. He requested an opinion from me in writing, which of course I declined giving, and he then took his leave carrying the paper with him. This paper was in fact a singular scrawl. It consisted of all kinds of crooked characters disposed in columns, and had evidently been prepared by some person who had before him at the time a book containing various alphabets. Greek and Hebrew letters, crosses and flourishes, Roman letters inverted or placed sideways, were arranged in perpendicular columns, and the whole ended in a rude delineation of a circle divided into various compartments, decked with various strange marks, and evidently copied after the Mexican Calendar given by Humboldt, but copied in such a way as not to betray the source whence it was derived. I am thus particular as to the contents of the paper, inasmuch as I have frequently conversed with my friends on the subject, since the Mormonite excitement began, and well remember that the paper contained any thing else but "Egyptian Hieroglyphics." Some time after, the same farmer paid me a second visit. He brought with him the golden book in print, and offered it to me for sale. I declined purchasing. He then asked permission to leave the book with me for examination. I declined receiving it, although his manner was strangely urgent. I adverted once more to the roguery which had been in my opinion practised upon him, and asked him what had become of the gold plates. He informed me that they were in a trunk with the large pair of spectacles. I advised him to go to a magistrate and have the trunk examined. He said the "curse of God" would come upon him should he do this. On my pressing him, however, to pursue the course which I had recommended, he told me that he would open the trunk, if I would take the "curse of God" upon myself. I replied that I would do so with the greatest willingness, and would incur every risk of that nature, provided I could only extricate him from the grasp of rogues. He then left me.
I have thus given you a full statement of all that I know respecting the origin of Mormonism, and must beg you, as a personal favor, to publish this letter immediately, should you find my name mentioned again by these wretched fanatics.
Yours respectfully, CHAS. ANTHON.
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On these grounds alone, Joseph Smith is a false prophet by his own chosen standard of reference. He is the one who volunteered this evidence in substantiation of his prophetic claims. If, therefore, Prof. Anthon expressly contravened that very claim, then the evidence is falsified by Mr. Smith's stated rules of evidence. This is, all by itself, sufficient to prove him an outright fraud.
But even that is not the end of the story. For since that time, a number of Egyptologists, have had occasion to compare the Book of Abraham against facsimiles of the Egyptian original. As Gleason Archer, who is, himself, a student of the language, has expressed the state of scholarly opinion, "Their finding was that not a single word of Joseph Smith's alleged translation bore any resemblance to the contents of this document," A Survey of Old Testament Introduction (Moody 1994), 555. Cf. C. Larson, By His Own Hand Upon Papyrus: A New Look at the Joseph Smith Papyri (Grand Rapids 1992).
So Joseph Smith has been weighed in a scale of his own choosing, and found to be sadly and wholly wanting. He has furnished both the evidence and the rules of evidence for his own indictment and conviction. It remains for us to pass sentence.
Monday, July 26, 2004
Original intent
One of the key debates between liberal and conservative is over original intent v. a "living Constitution." Robert Bork and Antonin Scalia are the leading proponents of original intent. Here's a (rather illiterate) transcript of a speech by Scalia on the subject.
http://www.manhattan-institute.org/html/wl1997.htm
http://www.manhattan-institute.org/html/wl1997.htm