Recent Claims About Evidence For Mary's Assumption

In an earlier post, I mentioned a debate on her assumption that TurretinFan and Dan Chapa participated in. They've been producing a lot of videos since then addressing the debate and some claims that have been circulating about alleged evidence for an assumption of Mary (what Jacob of Serug wrote on the subject, what modern scholars who specialize in the Assumption have said about the history of belief in Mary's assumption, etc.). There's a lot of valuable material in the videos. You can watch them here.

More Patristic Opposition To The Assumption Of Mary

TurretinFan and Dan Chapa recently debated William Albrecht and Sam Shamoun on Mary's assumption. During the debate, TurretinFan brought up some examples of patristic passages that imply that Mary wasn't assumed and patristic discussions of subjects related to an assumption of Mary in which other relevant figures are mentioned (Enoch, Elijah, etc.), but Mary isn't. He included some examples I haven't brought up before. See here for the text of a passage in Ambrose that refers to how Jesus is the only person who's been permanently resurrected. And see here for the text of a passage in which Caesarius of Arles comments that none of Jesus' followers will ascend to the clouds until the time of Jesus' second coming. For some other examples of individuals before the Reformation who denied Mary's assumption, see here.

Is the shoe on the other foot?

TFan responds:

If I follow Steve's accusation correctly, he's saying that Dr. White is inconsistent because:

1) Dr. White distinguishes between "truly religious" Muslims and "nominal" Muslims; but

2) Dr. White criticizes others for saying that ISIS are "true Muslims," because Dr. White states that there is no coherent standard for true Islam.

I can see why Steve might mistakenly believe that these two things are inconsistent with one another. It might sound like Dr. White is saying "you have to distinguish between true Muslims and others," while simultaneously saying, "there is no way of identifying true Muslims."

Unfortunately, Steve has overlooked an important distinction. There's a distinction between nominalism and sincere belief that is distinguishable from the difference between correct and incorrect belief.

By analogy, we see numerous nominal Christians - Christians who identify themselves as such and maybe go through a lot of the motions, but do so for reasons of cultural or personal convenience rather than because they have any actual conviction of the truth. 

We also see folks who are in heretical sects (like Roman Catholicism, Mormonism, etc.) that call themselves Christian, but which aren't truly Christian. Even within these sects, we have "true believers" and "nominal" members. Yet those who zealously embrace all of Rome's false doctrines are not "true Christians," even though they are not nominal.

When Dr. White rejects the "all Muslims are terrorists" assertion, he could do so on two different grounds:

1) Nominalism vs. True Believers

2) Multiple Competing Sects of Islam

In other words, John Doe in Riyad may be a Muslim simply because that's what everyone around him is, and if he did something different, he'd get himself into trouble. He doesn't really believe all the stuff they say, and there's no way he's ever going to put his life on the line for Islam.

On the other hand, Jane Doe in Jakarta may be a devout Muslims who sincerely believes the tenets of her particular sect. But if her sect is Ahmadiyya, then she's never going to commit an act of terror, because her beliefs are contrary to such acts.

Both John and Jane are counter-examples to the "all Muslims are terrorists" assertion, but for different reasons. These reasons aren't self-contradictory, they are complementary. 

The person who say, "all Muslims are terrorists," has to say both that nominal Muslims aren't really Muslims and also that sects that oppose terrorism aren't really Muslim sects. It's much harder to make a case for the latter point, and that's the point that Dr. White has been primarily addressing.

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It's to his credit that TFan attempts to provide a reasonable response. By way of reply:

i) First of all, I can't overlook a distinction which White failed to make. TFan is drawing a distinction that White never made. Assuming it's a valid distinction, that's something that White should have done to clarify his real position.

ii) Keep in mind that I, for one, have never said "all Muslims are terrorists." Although there are people who say that, exclusive focus on disproving that assertion becomes evasive.  

iii) In reference to Islam, the distinction between correct and incorrect belief is ambiguous. Since Islam is a false religion, there's a sense in which distinctively Muslim beliefs are false by definition. If truth is the standard of correct belief, then all the competing sects of Islam are objectively false or incorrect (in that sense).

v) There is, though, another standard, and that would be whether a belief is correct or incorrect on grounds internal to the belief system. Although the belief system may be false, if you grant the presuppositions of the belief system, then certain beliefs are consistent (=correct) or inconsistent (=incorrect) in relation to that particular frame of reference. 

vi) There is yet another, more relevant consideration. If Muhammad is a role model in Islam, and if the historical Muhammad was a promiscuous, violent man who engaged in military conquest and conversion by the sword, then jihadists are true to Muhammad while liberal Muslims are not. 

vii) In addition, the comparison with Christianity simply draws attention to the equivocal analogy. That's the other fork in the dilemma that White boxed himself into. TFan is of course correct that we can distinguish between orthodox Christians and nominal/cultural Christians. That goes to the distinction between orthodoxy and heresy, as well as orthopraxy and heteropraxy.

Problem is, White has said some Muslims have a right to deny that other Muslims are true Muslims. He used the example of the jihadist who gets drunk and has sex with prostitutes. Problem is, the jihadist can still be "truly religious." Can still be "representational of the worshipping community." 

He can be sincere. Surely his willingness to die for the cause of Islam is a mark of sincerity, however misguided. That's the antithesis of someone who "doesn't really believe all the stuff they say, and there's no way he's ever going to put his life on the line for Islam."

Likewise, White has admitted that jihadists can rightly justify their position from authoritative texts in Islam. So his jihadist ideology is "correct."

At best, White could try to say that the personal morality of the jihadist (getting drunk, having sex with prostitutes) is a violation of Muslim ethics. But that cuts against the grain of White's claim that there are varieties of sharia, differing interpretations, that it all depends on what traditions a Muslim privileges and his interpretive filter. So it's hard to see anyway to salvage White's argument. 

In his latest Dividing Line presentation, he kept using the metaphor of the shoe on the other foot, i.e. what if the situation was reversed, what if the Muslim traded places with the Christian accuser?

Problem is, Muslims and Christians don't wear the same pair of shoes. You can't put a size 7 shoe on a size 11 foot. White keeps attempting an analogy that's vitiated by the disanalogy between Christianity and Islam. The comparison is further nullified by his denial that there's such a thing as true Islam, in contrast to the distinction between orthodoxy and heresy in Christianity. 

But I do appreciate TFan's civil, intelligent response–in contrast to White's intemperate, abusive response. 

Judicial hegemony

I'll comment on this post:

http://turretinfan.blogspot.com/2015/09/distinguishing-reality-from-fantasy.html

Departmentalism is a pipe dream. It's not the way America actually works. In practice, in America, the Supreme Court has a final say. 

Several problems with a that objection:

i) As I already noted, TFan careens between opposing principles. His initial post appealed to the English common law tradition. He said the founding fathers accepted the principle that judicial precedent can have the force of law.

a) Now that appeal is problematic on its own grounds, for as I pointed out, having a written constitution represents a significant modification of the common law tradition. A written constitution restricts judicial discretion compared to common law jurisprudence.

b) But in addition, TFan's argument is an appeal to what he takes to be the original vision of the founding fathers. They (allegedly) intended judicial precedent to be the rule of law. 

But then he reverses himself by appealing to the modern status quo as determinative. All that matters is not what the founders intended, but how the current system works. If so, then he's withdrawn his initial argument, and replaced it with another argument that appeals to a principle diametrically opposed to the initial argument.

In other words, Whelan's position is a minority position that reflects the way he thinks the system should be not the way the system actually is.

i) Unfortunately for him, TFan's objection is self-refuting. TFan isn't simply describing the status quo. Rather, he's treating the status quo as normative. For instance, he says:

They are free to think the Court decided wrongly. However, even if they disagree with the ruling, they have to obey the ruling until it is overturned. 

One doesn't have to agree with the Court, but one does have to obey the Court.

Notice the implication: we are supposed to comply with the status quo–because it's the status quo. He's not merely describing how things are, but saying we (whether private citizens, or the president, or Congress) ought to defer to the status quo. He confers normative force to the status quo. After all, if he doesn't think that's the case, then why not challenge the status quo?

ii) In addition, TFan's attempted critique of Whelan is vitiated by equivocation. Whelan is exegeting Marbury v. Madison. Whelan is discussing the original scope of that ruling. What did Marshall mean? 

By contrast, TFan appeals to how the Supreme Court has been behaving at later stages of American history. But that changes the subject from what Whelan is talking about. 

As I read it, Marbury isn't asserting that the judiciary has the authority to dictate to Congress or the Executive; rather, it's claiming that Congress and the Executive lacks the authority to dictate to the judiciary. It's an argument for judicial independence. But that doesn't entail that the other two branches of gov't are subordinate to the judiciary. Rather, we have three independent power centers. Each one is authoritative within its proper sphere of governance.

Of course, they are meant to work together. The system falls apart if they fail to cooperate. But that doesn't mean one branch has the right to impose itself on the other two branches by threatening to go on strike unless it always gets its way. 

iii) Furthermore, even if Marbury taught judicial supremacy, why should anyone take that claim seriously? When the Supreme Court makes a self-serving claim, that hardly makes the claim true. The appeal is viciously circular. The Supreme Court must have the authority it claims for its claim to be authoritative. Unless it had that authority in the first place, its claim to authority...lacks authority. 

It's like Catholic apologists who quote early bishops of Rome on Roman primacy. Well, we'd expect bishops of Rome to magnify their authority. 

The fact that the Supreme Court makes self-aggrandizing statements hardly proves it to be what it claims to be. The authority of the judiciary is something to be determined by the Constitution, founding fathers, and ratification debates. 

iv) Then there's TFan's persistent failure to distinguish between judicial review and judicial supremacy. The question at issue is not whether the judiciary has the authority to disregard laws it considers unconstitutional, but whether the other two branches of gov't are subordinate to judicial rulings. 

What would be the point of having a judiciary that no one had to obey? The idea that the Supreme Court's decisions on constitutional matters are just advisory is just nuts.

i) What's funny about this objection is TFan's blindspot to the obvious counterexample:

What's the point of having elective branches of gov't if no judge has to disobey them? The idea that the executive and legislative interpretations of the Constitution are just advisory is just nuts. 

Why is TFan unable to see the nuttiness of his alternative? If it all comes down to to judicial hegemony, then the people's elected representatives are merely figureheads. 

ii) In addition, the way he frames the argument is very slack:

Who said "no one" has to obey the judiciary? Private citizens are in a different position than, say, governors. Keep in mind that even at the state level, there is such a thing as states rights (9th-10th amendments). 

In addition, both private citizens and state officials are in a different position than the US president or members of Congress.  

Why is it "nutty" to say the judiciary lacks the authority to command the people's elected representatives? 

vi) Finally, there's TFan's circular appeal to the status quo. But that's just a tautology. How does the status quo obligate anyone to maintain the status quo?  The status quo is simply how things currently operate. But that's no reason to think the status quo cannot or should not change. The way things are as of now is descriptive, not prescriptive. 

Back to the founders

I'm going to respond to a round of comments by TFan:

"And see my point two about the need to concede the point of my original article if you want to debate judicial supremacy."

You mean your unqualified claim that judicial precedent is law? Why should I have to concede that to deny judicial supremacy? You seem to equate denial of judicial supremacy with civil disobedience, according to which judicial precedent is ipso facto law, so that rejecting judicial supremacy's equivalent to breaking the law. But since that equation is the very issue in dispute, I hardly need to concede your premise to deny your conclusion. Rather, I deny your premise.

"That's simply not true. Even if judicial precedent can be overruled other ways, it's still law. You need to start thinking more clearly about this."

You constantly resort to a simplistic formulation of the issue. It is "the law" for whom or what? The litigants? Lower courts? The law of the land? A law that's binding on the executive and legislative branches? Not according to departmentalism. 

You said "it takes a Constitutional amendment in the US" to "overrule the courts." That presumes judicial supremacy. But according to departmentalism, judicial precedent is not ipso facto binding on the other two branches of gov't. 

"The English system wasn't a purely common law arrangement, so your argument fails."

I didn't claim that the English system was a purely common law arrangement. In fact I've discussed how it combines elements of common law and fundamental law. 

I'm simply answering you on your own terms. In principle, a written constitution restricts judicial freedom. Judges have less discretion under that system than a common law system (or system combining common law with natural law). 

"I don't need to prove judicial supremacy to prove that judicial precedent is law. You seem to have trouble distinguishing those points."

Which misses the point. "Is law" for whom? That's the problem with your unqualified formulation. If, say, the executive refuses to enforce a particular judicial ruling, then the general public needn't abide by that ruling. It can't be "the law of the land" if it is not in force. If the executive or legislative branch hasn't obliged them to comply, it lacks the force of law. 

"Practically anyone who knows anything about the American legal system recognizes that for the last two centuries, judicial supremacy has been the status quo. That two centuries is old enough to encompass the founding fathers, like Madison of Marbury vs. Madison."

i) I believe that's the second time in our exchange that you've appealed to Marbury as if that's a deal breaker for my position. From what I can tell, you haven't bothered to read (or absorb) the supporting material I've adduced regarding departmentalism, for if you had, you'd realize that departmentalism, is consistent with judicial review, but opposes judicial supremacy.

It's self-refuting for you to accuse me of ignorance regarding the alleged implications of Marbury when, before you left that comment, I already did a post engaging that very claim:

http://triablogue.blogspot.com/2015/09/departmentalism.html

Likewise, I engaged the same claim 3 days before in this post:

http://triablogue.blogspot.com/2015/09/judicial-authority.html

Where I quote Constitutional scholar Michael S. Paulsen. 

Likewise, on the first week of the month, I linked to no fewer than four discussions of that very issue:

http://triablogue.blogspot.com/2015/09/not-law-of-land.html

If anything, you're the one who seems to be uninformed. I've presented fairly copious counterevidence to your position on judicial supremacy, which includes direct engagement with Marbury, and you haven't produced any evidence to the contrary. All you do is to name-drop Marbury v. Madison and take your interpretation for granted. That's your prerogative, but it's not a refutation. Not even rational persuasion. 

The constitutional scholars I've cited explain how Marbury is consistent with departmentalism. How that's not a recipe for judicial supremacy. You might disagree with their interpretation, but thus far you don't even show any familiarity with the other side of the argument. 

ii) In addition, if you were attentive to the historical evidence I've cited, you'd be aware of the fact that departmentalism goes right back to the founding fathers. From what I've read, both Jefferson and Madison were departmentalists. 

According to departmentalism, each branch of gov't has the duty and authority to interpret the Constitution. Likewise, one branch's interpretation is not ipso facto binding on another branch. 

From the legal scholars I've read, you have Marbury backwards. It's not asserting the authority of judicial Constitutional interpretations to compel the executive and legislative branches, but denying the authority of executive and legislative Constitutional interpretations to compel the judiciary. 

The founding fathers were concerned with autocratic gov't. Concerned with any one branch becoming autocratic. Concerned with mobocracy. They devised a system to split the difference, so that no one power center would have enough power to deprive the other power centers of their power. 

In addition to the role of the elective branches, there's direct democracy. Departmentalism is one traditional theory opposed to judicial supremacy. But as I noted in a response to you, Constitutional scholar Larry Kramer has made a historical case for Constitutional populism. According to him, that's another traditional theory opposed to judicial supremacy. 

"Steve Hays has raised the question of the legitimacy of what he terms Judicial Supremacy…So, let's briefly consider the question of so-called Judicial Supremacy."

I don't know why you act as if that's my idiosyncratic terminology. In Cooper v. Aaron (1958), the Supreme Court used that terminology to characterize its own claims. This, again, makes me wonder how conversant you are with the details of the debate. 

"In practice, i.e. the way things are, the Supreme Court's interpretation wins. That's the way it has been, almost without interruption since the time of the founders. There are some rare situations that have challenged that status quo, such as when around 1832, President Jackson supposedly said "John Marshall has made his decision; now let him enforce it!"

It wasn't just Jackson alone, acting unilaterally. Rather, Jackson and Congress were united in their opposition to the Court: two branches against one. Then there's the celebrated case of Lincoln treating the Dred Scott ruling as a dead letter. 

(BTW, I don't countenance the Indian Removal act. But I'm not discussing the issue on the merits. I'm just discussing procedural issues.)

"It seems to be much less compelling that the President or Congress could simply disregard a Supreme Court decision because they don't think it was justified, even if they don't think it would violate the Constitution. After all, what if the Court did that? In other words, what if the Court didn't say laws were unconstitutional, but simply refused to treat as valid laws it didn't think were justified? That would seemingly potentially cause chaos."

i) Yet that's precisely what the Court did in Marbury, even though TFan hangs his argument on that peg. 

ii) In addition, TFan raises a pragmatic objection to departmentalism, but he ducks the question of whether it was the intent of the founding fathers to make the judiciary the final arbiter of what the Constitution means. 

BTW, I'm not suggesting the founders had a monolithic view of the judiciary. But from what I've read, there was certainly no monolithic support for judicial supremacy. 

iii) As I discussed in another post, when the executive and/or legislative branches disregard judicial opinion, that has a potentially destabilizing effect. But the system only works so long as men of good will, in all three branches, play by the same rules. No system is self-correcting. Any accountability system can be corrupted. A system of checks and balances only works provided taht all the parties abide by the same rulebook. 

If one branch egregiously abuses it's authority, then that becomes a game of chicken: who blinks first? Within the system, you may end up with a stalemate. In that event, the citizenry is the final fallback. You have to go outside the system. 

"Steve's argument here is wrong. What Steve should say is that if the Supreme Court were consistently given an incontrovertible prerogative, they could avoid impeachment and ignore Constitutional amendments. But the current American system does not give them that level of incontrovertible prerogative."

I'm responding to TFan on his own grounds. If he says the judiciary is the absolute arbiter of what the Constitution means, then that grants the judiciary an incontrovertible prerogative to "interpret" out of existence any challenge to its hegemony. It can reinterpret an impeachment clause or reinterpret a new amendment to remove any check on its unbridled authority. TFan's position is self-contradictory. 

Finally, jurisprudence isn't static. A lot depends on what law students are taught. That can change from one generation to the next. If they are indoctrinated in judicial supremacy, many will unthinking accept that framework. But if that's challenged on historical grounds, opinion can shift back to an earlier (e.g. pre-Cooper v. Aaron) understanding.

Changing horses

One difficulty I have with TFan's statements on Obergefell is that he's ending up in a different place than where he started. This is where he initially staked his ground:

Actually, the founders accepted the idea of judicial precedent as law. They all had as their framework the English "common law" system, in which judicial precedent was treated as law. The Constitution doesn't oppose this framework. In the historical context in which the Constitution was written, it was assumed that judicial precedent would be treated as law.

That's an appeal to the past. To the relevance of historical interpretation. To the pertinence of what the founders intended.

But in his latest statement he says:

Once again, there is a sort of academic argument to be made that the final determination of constitutionality should lie in the Executive or Legislative branches, but in practice that's not where the American system is today. 

Today, even when the Supreme Court makes bad Constitutional decisions, its decisions stand as law until either they are overruled by subsequent Supreme Court decisions or the U.S. Constitution is amended. That's how the system is, whether or not that's how the system should be. I leave the should be question to the academics and the rich.

That appeal nullifies past understanding. What the founders had in mind is beside the point. That's just "academic." All that's germane is how things stand as of now.

From what I can discern, TFan switched arguments in midstream. Indeed, reversed his argument. His initial argument was based on the origins of the Republic in a common law tradition which English colonists inherited from the Mother country.

But according to his latest argument, that appeal is mooted by the current status quo. All that matters is how the system works at present, and not whether that's at odds with the intentions of the founders, as well as the states that ratified the Constitution.

"Bad law is law"

I'll briefly comment on this:

http://turretinfan.blogspot.com/2015/09/bad-law-is-still-law.html

Unfortunately, TFan's analysis is persistently reductionistic. He never gets beyond the threadbare claim that a judicial ruling can have the force of law. That's a very simplistic view of the issue. 

He fails to distinguish between judicial review and judicial supremacy. He invokes Marbury v. Madison, as if I haven't taken that into account.

He neglects to engage the historical arguments presented by legal scholars I've cited, viz. Robert George, Ed Whelan, Michael Paulsen, Paul Moreno, Robert Lowry Clinton (and, most recently, Larry Kramer).

He's stuck on one controlling idea, which fails to do justice to a historically informed understanding of what our system of gov't amounts to.  

This is not a question of what it "should" be in some utopian sense, but what it was designed to be according to the Founding Fathers. I've been arguing for the latter, not the former. 

Finally, his latest response is already dated, because he ignores my reply to a comment he left on my blog. As I demonstrated, his position becomes a reductio ad absurdum. His post is at least one step behind the actual state of the argument at this juncture. 

Judicial absolutism

Turretinfan:

The question addressed by my post was whether Obergefell is law, not whether it is good. It is bad.

My post didn't frame the issue in terms of whether or not Oberfefell was good or bad. 

On its face, the decision is an interpretation of the Constitution. It purports to apply the Constitution to the case of so-called same-sex marriage.

Which is just a ruse. Kennedy appeals to the 14th amendment equal protection clause to divine a Constitutional right to homosexual marriage. That, however, is a legal travesty. As one source points out:

The Thirteenth Amendment abolished slavery throughout the United States. See U.S. Const. amend. XIII. In response to the Thirteenth Amendment, various states enacted "black codes" that were intended to limit the civil rights of the newly free slaves. In 1868 the Fourteenth Amendment countered these "black codes" by stating that no state "shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States... [or] deprive any person of life, liberty, or property without due process of law, [or] deny to any person within its jurisdiction the equal protection of the laws." See U.S. Const. amend. XIV. 

https://www.law.cornell.edu/wex/civil_rights

i) So that concerns racial equality, not homosexual equality. The 19C Congress which passed the 14th amendment, and the 19C states which ratified the 14th amendment, had no intention of making homosexual marriage a Constitutional right. 

Obergefell is not an interpretation of the Constitution. Rather, it reassigns the 14th amendment to a referent (homosexual marriage) which the legislators and ratifying states never contemplated. The 14 amendment cannot mean that or refer to that. 

ii) Furthermore, it's not just that they couldn't foresee that issue. Rather, the 19C Congress which passed the 14th amendment, and the 19C states which ratified the 14th amendment, would undoubtedly be opposed to homosexual marriage, had that been proposed for their consideration. Consider the prevalence of anti-sodomy laws back then. Indeed, until they were struck in 2003. 

So that's not a logical extension of a general principle. That "interpretation" of the 14 amendment isn't evolutionary, but revolutionary.

Obergefell is an exercise in judicial make-believe. Pretending there's Constitutional authorization for homosexual marriage. 

The constitution unequivocally gives the judiciary the authority to apply the Constitution to cases: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution" (Article 3, Section 2).

You keep ducking the issue of judicial supremacy. The question at issue was never whether the judiciary has the authority to interpret the Constitution, but whether the judiciary has ultimate authority to interpret the Constitution. Does the Constitution say that? No. Did the Founding Fathers grant the judiciary the final say on what the Constitution means? Not from what I've read. 

Moreover, your appeal piggybacks on the false premise that Obergefell is an interpretation of the Constitution, when, in fact, that's a transparent ploy. 

Even assuming that the minority opinion of the Court was an objectively better interpretation…

This isn't merely a question of better or worse interpretations. Rather, the majority didn't even attempt to offer a good faith interpretation of the Constitution. That's a game of pretend. What they did is begin with their social agenda, then foist a patently anachronistic import onto the 14 amendment. Their judicial opinion lacks any legitimacy in this case.

So it becomes an issue, not of Constitutional authority, but judicial authority. Not what the Constitution warrants, but what the Court warrants–in spite of the Constition. Does the judiciary have unlimited authority? 

On its face, Obergefell is a judicial interpretation of the Constitution.

i) It's not the duty of executive or legislative magistrates to be party to a judicial charade. They should not be coconspirators in that duplicitous exercise. 

ii) How is your position regarding the judicial "interpretations" of law any different than the Catholic position regarding magisterial "interpretations" of Scripture? Stipulating that the Constitution means something doesn't make it so, anymore than stipulating that the Bible means something doesn't make it so.

iii) Finally, your argument is self-defeating. In your post you say:

Within the law, we can remove Supreme Court justices for bad behavior and install those who will overturn bad precedent. Alternatively, we can amend the Constitution to overcome bad judicial precedent regarding the Constitution.

But since you refuse to challenge judicial supremacy, your appeal to impeachment or the amendment process is preemptively derailed by the very institution you presume to rein in, given the incontrovertible prerogative you ascribe to it. If the Constitution only means whatever judges say it means (a la Chief Justice Hughes), then they can "interpret" the Constitution to immunize judges from impeachment or forbid the abridgment of their authority. 

They can "interpret" the Constitution to mean the US president is the English monarch, Congress is Parliament, and Anglicanism is the state religion. 

They can interpret the Constitution to mean judges have the authority to appoint their own successors. They can interpret the Constitution to mean the Chief Justice is Command-in-Chief (rather than the president).

ii) Isn't the very purpose underlying the Bill of Rights to curtail the scope of gov't? What's the point of having a written Constitution in the first place if judges have unrestricted freedom to substitute their own values? As Jefferson said: 

Our peculiar security is the possession of a written Constitution. Let us not make it a blank paper by construction. 

To which Felix Frankfurter added: 

The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.

Judicial authority

I'm going to comment on this post:

http://turretinfan.blogspot.com/2015/09/obergefell-is-law.html

I don't know with whom TFan is shadowboxing. Perhaps it is, in part, Facebook friends. I'd just say that my own position is more qualified than what he's attacking in his post. 

Some dear friends have been going around claiming that Obergefell(fn1) isn't the law of the land. These dear friends are wrong. 

But the Constitution vests all legislative authority in the Congress! 

Yes all federal legislative authority is Congressional, but legislation isn't the only kind of law. There are also laws that come from the executive branch (e.g. regulations) and laws that come from the judicial branch (e.g. judicial precedent). There are even treaties, which the President enters into with the consent of the Senate.

That's a legitimate distinction. However:

i) As he admits, treaties only have the force of law if they are ratified by the legislative branch. So that's not a real counterexample.

ii) Whether executive agency regulations should have the force of law is hardly indisputable. To my knowledge, that's not something the Founding Fathers envisioned. You've had a profusion of executive agencies during the 20C. Some were created by Congress, some were created directly by Presidential fiat. We should oppose the autocratic nature of these executive agencies. It subverts the Constitutional system of checks and balances. 

iii) Words have connotations as well as denotations. There's a reason proponents of homosexual marriage call Obergefell "the law of the land" rather than "a judicial opinion." The former sounds far more impressive than the latter. Even if these are synonymous, they have very different connotations. 

iv) Likewise, it's not just the meaning of the noun, but the meaning of the adjective, which modifies the noun, that's significant. You can speak of Constitutional law, statutory law, and common law. They may all be "law," but the adjective qualifies the nature of the "law" in question.

But the Founders never intended for judicial precedent to be law! 

Actually, the founders accepted the idea of judicial precedent as law. They all had as their framework the English "common law" system, in which judicial precedent was treated as law. The Constitution doesn't oppose this framework. In the historical context in which the Constitution was written, it was assumed that judicial precedent would be treated as law.

But that camouflages the real issue. What is the basis of judicial precedent? What's the standard of comparison? It's supposed to be judicial interpretations of Constitutional law or statutory law (or treaties). So it's not an independent lawmaking body. Rather, the judicial interpretation is dependent on preexisting laws, supplied by the legislative branch of the Constitution itself. 

There is, moreover, a fundamental difference between a good faith interpretation of a legal text, and using a legal text as a pretext to invent a new Constitutional right that has no basis in the wording, logic, or intent of the text. 

But this is Legislating from the Bench! 

What you really mean is, you don't agree with the justices' decision. You think they were wrong to conclude as they did. That doesn't make this legislation from the bench. It's just judicial precedent.

That's just a cheap shot. 

But Kentucky's law is different 

When Federal law and Kentucky state law come into conflict, Federal law wins (US Constitution, Article VI).

i) That's true up to a point. However, that depends on overlapping jurisdiction. Under our system of Federalism, the jurisdiction of the Federal gov't is not unlimited.

ii) Moreover, state marriage bans did not conflict with any Federal law. There was no Federal statute mandating the right of homosexuals to marry. 

iii) I also notice that TFan skirts the issue of whether judicial review includes the right of the Federal judiciary to strike down acts of Congress. 

But Article VI doesn't mention judicial precedent! 

Even if that mattered, it mentions the US Constitution and - according to Obergefell - the US Constitution conflicts with some state laws.

But that begs the very question at issue. This isn't about the Constitution, but about judicial supremacy. So that's a bait-n-switch. How much authority does the judiciary have under our Constitutional system of gov't? 

A consistent motif of the book is the recurrent myth of “judicial supremacy” in constitutional interpretation — a view that most textbook accounts (and law school casebook accounts) wrongly ascribe to the framing generation and to Marbury v. Madison. The power of constitutional interpretation, we observe at various points in the book, is not exclusively vested in the courts, with all other branches and officers of government bound to accept, unthinkingly and reflexively, whatever the courts decide. Rather, the power of constitutional interpretation is a divided, shared power incident to the functions of each of the branches of the national government — and to instruments of state governments, and of juries, as well — with none of these actors literally bound by the views of any of the others. 

This is not an especially shocking position. “Departmentalism” in constitutional interpretation is familiar to legal scholars. (We never use that term in the book; we insist on avoiding legal and academic jargon wherever possible.) We go further than most, however, in explaining its implications across a range of situations. 

For example, we offer a brief theoretical and practical defense of the propriety of executive and congressional non-acquiescence in judicial precedent that, in the independent judgment of these other actors, conflicts with the Constitution.  We explain and defend Congress’s prohibition of slavery in national territories notwithstanding the contrary decision in Dred Scott and Lincoln’s non-enforcement of Chief Justice Taney’s constitutional judgment and order in Ex parte Merryman. Further, we take seriously (at least as an original matter) the idea that Congress might legitimately use the impeachment power to remove executive and judicial officers for their perceived flagrant departures from the Constitution.  We also discuss seriously the theoretical arguments of Madison, Jefferson, and Calhoun for the propriety of state “interposition” and “nullification” of federal actions on constitutional grounds — and also discuss the limitations of and errors in their approaches.  And we also embrace the propriety of independent jury interpretation of the Constitution. 

In setting forth the Constitution’s familiar separation and division of powers among independent branches, we note “the checking power of the courts — and the checks on the courts’ exercise of that power.” We emphasize the independence of the judiciary but pair it with the independence of the other branches:

The independence of the judiciary operates as a formidable check on the actions of the other two branches.  But Congress and the President have checks on this check, too.  Congress largely controls the courts’ jurisdiction — their authority to hear and decide cases.  And if the courts’ decisions conflict with the Constitution itself, Congress and the President possess the power to disregard them (and have done so on certain occasions, as we will see in later chapters).  After all, Congress and the President are bound by oath to support and defend the Constitution, and must resist unconstitutional actions by the courts, and by each other, just as the courts are bound to resist violations of the Constitution by Congress and the President. 

The courts have power to decide cases — and thus check Congress and the President — but little practical power to enforce their decisions, and none to command the other two branches.  As Alexander Hamilton wrote in The Federalist No. 78, the judicial branch “may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”  Indeed, if the courts could command the other two branches, that would violate Madison’s (and Montesquieu’s) rule that the accumulation of all power in one set of hands is “the very definition of tyranny.”  Traditionally, however, Congress and the President have deferred to the constitutional judgments of the Supreme Court — with only a few notable exceptions — even in cases of extraordinary errors risking great harm to the nation.  The courts’ very weakness thus has become a source of their strength. 

Chapter Three (“Powers”) describes the respective powers of the three branches of the national government, including the nature of “the judicial Power” of the courts. With respect to the courts, we maintain (conventionally) that the independence of the judiciary, combined with the status of the Constitution as supreme law, entirely justifies the idea of constitutional judicial review of legislative and executive acts.  However, we suggest (less conventionally, but historically correctly) that the power of judicial review cannot be taken to imply supremacy of the judiciary over the other branches in constitutional interpretation, but only independence of those branches in the performance of its judicial duties:

The power of independent judgment as to the meaning and application of the law is especially significant under the US constitutional regime precisely because the Constitution itself is designated as the supreme law of the land.  Courts interpret and apply the law as part of their regular function of deciding cases, and the Constitution is part of “the law” — indeed, the supreme law — that courts are to apply.  Thus, the courts — with the Supreme Court at the top of the hierarchy — possess an independent power to interpret and apply the Constitution, as a consequence of their customary power to interpret and apply the law in cases before them. 

This does not make the Supreme Court supreme over the other branches — recall Madison’s statement in The Federalist No. 49 concerning the Constitution’s separation of powers:  “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”  But it does mean that the framers envisioned the judicial power of constitutional interpretation as a meaningful check on the other branches. 

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/19/the-myth-of-judicial-supremacy/

Doctrine of the Lesser Magistrate! 

Suffice to say that this doctrine is one that relates to rebellion by the lesser magistrate against the greater magistrate. When or whether such rebellion may be Scripturally warranted is a different topic, but the point is that we are no longer talking about whether Obergefell is law, but whether the lesser magistrate is going to obey that law or rebel against that law. In principle, there are times when lesser magistrates ought to rebel against the law, but it is still rebellion against the law. Those who rebel against the de facto authorities, including an unjust greater magistrate, should fully expect to reap the consequences of death, imprisonment, loss of property, and so on. 

That's confused. TFan is repeating the same mistake made by Brad Littlejohn. Their objection fails to distinguish between a general principle and a particular application thereof. Revolution is a limiting case of the principle. Protestant theologians (e.g. Calvin, Knox, Rutherford) developed a theology of revolution. This was codified and secularized by John Locke. 

Magisterial resistance, up to and including revolution, is just a special and (logically) extreme application of a larger principle, which is civil resistance to tyranny in general. So we have an a fortiori argument (a maiore ad minus). If the greater exercise (revolution) is justifiable, then lesser forms of civil resistance are justifiable.   

The TurretinFan/Albrecht Debate On Intercession Of The Saints

TurretinFan recently debated William Albrecht on the subject of the intercession of the saints. Albrecht claimed that none of the church fathers opposed praying to the deceased. He said that he didn't know of anybody who opposed the practice before John Calvin, though he later added the qualifier that Vigilantius opposed it in the fourth century. He cited a passage from Hippolytus, popularized by Ludwig Ott, to argue that Hippolytus supported the practice of praying to the dead. He also claimed that Origen supported it, among many others.

Actually, the evidence suggests that prayer to the dead wasn't practiced by believers in the Biblical era, is sometimes contradicted by the Biblical authors, and was rejected in the earliest generations of patristic Christianity. You can find a collection of many of my posts on these issues here. And here's a listing of our posts under the Prayer label. (Keep clicking "Older Posts" at the bottom right of the screen to see more.)

In some posts on Hippolytus here and here, I explain that he seems to oppose praying to the dead rather than supporting it. I don't know if Albrecht read more of Hippolytus' commentary on Daniel than the one passage he cited. He may have just been repeating what he saw in Ludwig Ott. But Tom Schmidt recently published the first full English translation of Hippolytus' commentary, and I've read the entirety of it. If you read the passage Ott cites in context, it doesn't support the conclusion Ott and Albrecht have used it for. Similarly, the evidence suggests that Origen opposed prayer to the dead rather than supporting it. Celsus, a second-century opponent of Christianity Origen wrote against, suggests that Christians reject prayer to deceased humans, angels, or any other beings other than God, and Origen suggests the same in response. See here and here, among other posts I've written about Celsus and Origen's comments on these issues.

In a thread here you'll find a lengthy comments section in which I address Hermas, Athenagoras, and many other patristic sources. You can use the Ctrl F feature on your keyboard to find the material you're interested in. For example, if you search for "Vigilantius", you'll find my comments on how he wasn't alone in opposing prayers to the dead in the fourth century. Other church leaders and laymen held the same view.

In our index post on prayer, you'll also find links to posts in which we address the Biblical evidence. On the issue of deceased believers being spiritually alive, which supposedly exempts them from Biblical passages about not trying to contact the dead, see here. For example, go to the comments section of that thread, and read my posts at 4:55 A.M. and 4:59 A.M. on 6/4/10. On Revelation 5:8, which was cited by Albrecht, see here. See here concerning catacomb inscriptions. Albrecht made much of the fact that deceased believers in heaven are sometimes portrayed as being aware of events on earth. On that subject, see here. The same post expands on a good point TurretinFan made during the debate, that prayer to the dead is absent in scripture across so many passages and so many contexts addressing so many timeframes.

Doomsday machine

These are some comments I made at Facebook discussions. 

There's always a problem when a policy is quoted to defend the policy. If the rationality of the policy (e.g. no anonymous comments) is, itself, the very thing in dispute, then defending the policy to quote the policy is circular. Moreover, there's a problem when we absolutize our little manmade rules, as if we're suddenly handcuffed by the rules we make. Once we make them, we're bound to follow them without exception. But the handcuffs are imaginary.

There can be value in having a general policy, like "Don't drive on the wrong side of the road."

If, however, a hurricane is heading your way, it makes sense for authorities to suspend the policy and open all lanes to outbound traffic.

Even if it's a good general policy to forbid anonymous comments to weed out irresponsible commenters who hide behind anonymity to take potshots, TFan is a known quantity. It's unintelligent to treat all anonymous (or pseudonymous) commenters alike when, in fact, they are known to be unalike.

Moral and rational discrimination requires discretion. Treating everyone alike without regard to the fact that individuals are unalike is morally and intellectually lazy. Why punish smart people for the misdeeds of dumb people?

Some people allow themselves to be trapped inside their made-up rules. The rule becomes a doomsday machine. It has an on-switch, but no off-switch. Once the doomsday machine goes online, you can't shut if off. You're now at the mercy of the machine you made. 

The rule becomes the master. The rule tells the rulemaker what he's allowed to do or not to do. I don't understand people who permit themselves to be dictated to by their made-up rules. Rules that aren't moral imperatives. Rules that outlive their usefulness. 

Sins of omission

TFan has offered a partial response on the divorce thread. However, I must express my extreme disappointment that he’s apparently shorted me by 996 responses. I’ve contracted a collection agency to recover the missing responses he still owes me. I’ll be billing him for the expenses.

As if that wasn’t bad enough, I notice another glaring omission. He failed to respond to footnote #713, subsection C, Excursus J, in Appendix G of my surrejoinder to my rejoinder to his 10/18/2012 2:50 PM comment. 

The Most Interesting Man In The World

The anonymous "TurretinFan"—yes, the guy who refuses to face those he (or she) constantly accuses of biblical and/or moral crimes.

http://peterlumpkins.typepad.com/peter_lumpkins/2010/07/peter-lumpkins-is-unregenerate-says-turretinfan-by-peter-lumpkins.html

This allegation naturally piqued my curiosity, so I put my private investigators on the elusive trail of Turretinfan. As it turns out, TurretinFan has indeed shown his face on many occasions:

http://www.youtube.com/watch?v=L-4zfsy6rsM

One-man magisterium

http://turretinfan.blogspot.com/2012/05/magisterium-of-rome-vs-magisterium-of.html

"Beating up on homosexuals"

Yes, male homosexuality is set forth as being a capital crime, like a number of family relations crimes. In terms of the sentence given it, it is more heinous in God's sight than certain kinds of incest and period violation. But for those of you who like to beat up on homosexuals, note that it is not the most heinous. The most heinous is taking both a woman and her mother. There, the punishment is not just death, but death by fire.

http://turretinfan.blogspot.com/2012/05/why-im-against-150-mile-fence.html

I’m unclear on why TFan has cast the issue in punitive terms. Who-all is he referring to?

In the contemporary culture wars, social conservatives don’t ordinarily propose legal punishments for homosexuals or homosexual conduct. Rather, they oppose treating homosexuality as morally equivalent to heterosexuality. They oppose homosexual marriage and homosexual ordination. They oppose forcing homosexual membership onto private organizations like the Boy Scouts–because that violates the Constitutional right of free association. They oppose homosexuals in the military. They oppose hate-speech laws against Christian ethics. They oppose homosexual propaganda in the public school curriculum. They oppose affirmative action for homosexuals. They oppose efforts to strip away conscience clauses for religious organizations.

None of this involves taking punitive measures against homosexuality. There’s a difference between criminalizing an activity, decriminalizing an activity, and elevating said activity to a civil right.

The actual state of the debate is two steps removed from prosecuting homosexuals. 

TurretinFan's high school yearbook photo

Name that Nancy boy!

Are long-haired men effeminate? They always say a picture is worth a thousand words.