So why bring it up? Well, given the chance to finally note a real constitutional defect in a Democratic plan, rather than just screeching about nullification, the far right flubbed it. From RedState:

The two bills that the House is now contemplating directly contradict each other. [. . . .] I think the constitututional principle being violated here is known as the “nondelegation doctrine.” By saying two contradictory things at the same time, the House would be delegating its power to the Senate and the White House, allowing the latter to pick which meaning they like best.

Congress could use the same approach to allow a line-item veto, by passing a thousand budgets instead of one, and letting the President pick whichever one he likes best.  And that would also violate the nondelegation doctrine.

Really? The nondelegation doctrine? You’re doing it wrong! The nondelegation doctrine is a real constitutional issue, but (1) it’s been substantially dead for about seventy years, and (2) that’s not how it works, were it to work at all. Let’s examine.

Simply put, nondelegation prevents the legislature from writing itself out of the separation of powers equation. In a constitutional democracy, the legislature will, necessarily, bear the political risk for new initiatives. Representatives thus have a real interest in punting any given issue down the field, to, say, a politically insulated administrative agency.

In fact, that’s how we run a lot of our government, and it’s fine, so long as the legislature delegates discretion to act within the bounds of an intelligible principle of Congress’ own formulation. “Regulate trade in the best interests of the American people,” for example, is not an intelligible principle; it’s a complete derogation of one of the legislature’s Article I, § 8 powers. See A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935). On the other hand, “draft sentencing guidelines for federal criminal cases, within the following bounds,” is an intelligible principle. See Mistretta v. U.S., 488 U.S. 361 (1989).

Thus, it’s literally nonsensical to talk of the House over-delegating to the Senate, or vice versa, because a delegation that does not result in transmitting power between branches of government is no delegation at all. And, to the extent that “delegation” occurs between the legislative chambers, it’s called “cooperative drafting,” or, “politics when you don’t have a filibuster.” Delegating power to the executive is the type of thing we worry about; but passing a few bills, and handing them to the President to sign one, results in the derogation of only that specific power normally surrendered in the lawmaking process. Or, put another way, it’s not an over-delegation because it supplies the ultimate intelligible principle: a full legislative framework.

As a function of the need for a fully functional administrative state, something acknowledged by both the Supreme Court and academicians, the nondelegation doctrine is also substantially dead, in that wider and wider swaths of power have been delegated away every year since 1935. The danger is both that the doctrine has weakened, and that the effects of delegation are cumulative: even if no one act will ever over-delegate, the legislature can, instead, die by a thousand progressively widening papercuts.

The one place the courts actually use the nondelegation doctrine today, as one of my professors used to say, is when they invalidate criminal statutes for “overbreadth” or “vagueness.” The theory is that a vague criminal statute doesn’t just fail to give notice to potential lawbreakers; it also gives law enforcement, a subsidiary of the executive, too much discretion. Criminalizing “obscenity,” with no further descriptor, would effectively let local police write their own law. Clever, no? God, I wish I could say I’d come up with that.

Yes, the RedState post was just an excuse to talk for a while about nondelegation. But seriously, how cool is nondelegation?

It should be noted first that neither the Fourteenth Amendment nor any Act of Congress purports to impose an affirmative duty on a State to begin to operate or to continue to operate swimming pools. Furthermore, this is not a case where whites are permitted to use public facilities while blacks are denied access. It is not a case where a city is maintaining different sets of facilities for blacks and whites and forcing the races to remain separate in recreational or educational activities.

Palmer v. Thompson, 403 U.S. 217 (1971).

In some situations, the Court has taken to looking fairly closely at the real equities involved in discrimination cases — therefore, when states ban interracial marriage, although the ban applies “equally” across races, the message of racial inferiority is distinct, palpable, and the presence of a “formal” equality can’t mask the obvious substantive inequality.

The Palmer strategy — break the toy, rather than share it — succeeds because it exploits gaps in the court’s vigilance to meet that goal. After all, it’s a lot more controversial to enforce an affirmative act than it is to order the end of one. It also shows the depths to which people will go, and the harm they’ll willingly inflict on themselves, to maintain their prejudices. Given the strategy’s efficacy, and its truly stunning capacity to offend, we shouldn’t be surprised to see it resurface in a new context. But it’s still disappointing:

The American Civil Liberties Union filed a lawsuit today against a Mississippi High School that has canceled prom rather than let a lesbian high school student attend the prom with her girlfriend and wear a tuxedo to the event. In papers filed with the U.S. District Court for the Northern District of Mississippi, the ACLU asks the court to reinstate the prom for all students at the school and charges Itawamba County School District officials are violating Constance McMillen’s First Amendment right to freedom of expression.

The First Amendment gloss gives the ACLU a plausible chance for success here. But not much of one. Disgusting, but some fights we’ll only win with time.

Apparently, contemporaneously with us, Texas was having its own debate, which, to my dismay, resulted in a paradigmatic example of the noxious type of revisionism. There the school board, packed with paleo-conservatives who lost their elections for just that but seem determined to make the most of their lame duck status, made the following changes to the state’s social studies curriculum:

(•) The board rejected a proposed standard requiring students to “examine the reasons the Founding Fathers protected religious freedom in America by barring government from promoting or disfavoring any particular religion over all others.” That means the board opposes teaching students about the most fundamental constitutional protection for religious freedom in America.

(•) Even as board members continued to demand that students learn about “American exceptionalism,” the board stripped Thomas Jefferson from a world history standard about the influence of Enlightenment thinkers on political revolutions from the 1700s to today. In Jefferson’s place, the board’s religious conservatives succeeded in inserting Thomas Aquinas and John Calvin. They also removed the reference to “Enlightenment ideas” in the standard, requiring that students should simply learn about the influence of the “writings” of various thinkers (including Calvin and Aquinas).

These changes, among other shockers omitted from this post because I just can’t spare the outrage, amount to an utter rejection of one of the basic definitions of who were are as a people — we are free, not just from foreign tyrants and government overreach, but from the requirement that we think or worship a certain way. A candid look at the history of the founding generation reveals several inconvenient truths for modern fundamentalist Christians — among them, the fact that several presidents of that era, beginning with the third, considered public prayer too much of an establishment of religion to risk in the nascent republic:

Congress thus inhibited from acts respecting religion, and the Executive authorised only to execute their acts, I have refrained from presenting even occasional performances of devotion presented indeed legally where an Executive is the legal head of a national church, but subject here, as religious exercises only to the voluntary regulations and discipline of each respective sect [N.B. omitted from final draft. - Ed.].

And that several of the Constitution’s framers, most notably Jefferson and Franklin, were Enlightenment men through and through, who regarded the supernatural component of religion as utterly secondary to, or even detrimental to, its moral power. Wrote Jefferson:

[T]he greatest of all the reformers of the depraved religion of his own country, was Jesus of Nazareth. Abstracting what is really his from the rubbish in which it is buried, easily distinguished by its lustre from the dross of his biographers, and as separable from that as the diamond from the dunghill, we have the outlines of a system of the most sublime morality which has ever fallen from the lips of man [. . . .] The establishment of the innocent and genuine character of this benevolent moralist, and the rescuing it from the imputation of imposture, which has resulted from artificial systems, [FN1] invented by ultra-Christian sects, unauthorized by a single word ever uttered by him, is a most desirable object, and one to which Priestley has successfully devoted his labors and learning. It would in time, it is to be hoped, effect a quiet euthanasia of the heresies of bigotry and fanaticism which have so long triumphed over human reason, and so generally and deeply afflicted man kind; but this work is to be begun by winnowing the grain from the chaff of the historians of his life.

[FN1:] e.g. The immaculate conception of Jesus, his deification, the creation of the world by him, his miraculous powers, his resurrection and visible ascension, his corporeal presence in the Eucharist, the Trinity; original sin, atonement, re generation, election, orders of Hierarchy, &c. T. J.

Ouch. Search through the rest of his letters for the name “Jesus” for some more zingers. Jefferson has some especially choice words for John Calvin. Interesting, then, which one Texas school children will hear the most about.

It’s wrong to say that America was built exclusively by deists and atheists, but wronger still to teach that America was built to be a Christian Nation as modern culture warriors mean the term, complete with public prayer, and invocation of the deity to justify prejudice against fellow citizens. We may fairly conclude that America was built to be a nation where Christian Morality would be felt, but not heard as such; but to support or counter that argument, or even recognize this country’s place in world history, students need a fair understanding of the Enlightenment, and an awareness of the voices of all of the founding generation, not just those whose lives, or cherrypicked versions thereof, best support Phyllis Schlafly’s latest book.

Apparently, the Christian right is happy to embrace “American exceptionalism” — but only so far as it jives with their latent theocratic impulse. And they’ll happily defend us all against “brainwashing” by public officials, but only when the speaker isn’t, ah, “like” them.

[We] recognize that these limitations might impede the investigation of a terrorist offense in some circumstances. It is conceivable that, in some hypothetical situation, despite the array of powers described above, the government might be unable to detain a dangerous terrorist or to interrogate him or her effectively. But this is an inherent consequence of the limitation of Executive power. No doubt many other steps could be taken that would increase our security, and could enable us to prevent terrorist attacks that might otherwise occur. But our Nation has always been prepared to accept some risk as the price of guaranteeing that the Executive does not have arbitrary power to imprison citizens.

Per Politico, and ABC, we learn that this statement is apparently controversial.

Why? We attribute to Benjamin Franklin a near infinite number of variations on the same theme: “those who would give up a little liberty, to gain a little security, deserve neither, and will lose both.” While security and liberty need not always be in perfect tension, or a zero-sum relationship, expansion of liberty does usually attend the loss of some security, or at least the loss certainty. Whether that’s a bargain we want to strike is not a question we’re empowered to resolve: it was decided for us, in the affirmative, long ago.

And, remember, in the 2001-2008 debate over habeas corpus, Holder’s side won. Have we really fallen so far that we’re willing to not only mortgage the writ of habeas corpus, but question why we ever thought we’d do otherwise?

We’re both wrong. Well, we, liberals are actually right, but our simple case doesn’t present the whole story. Alito’s outburst was a breach of decorum, sure, but one he was privileged to make if we were wrong in the first place. So let’s get to that question.

Chief Justice Roberts, again speaking yesterday, regards it as impolitic for Obama to even address the Court in his speech. That surely overstates the case.  It would be wrong for Obama to attack individual Justices, or at least tacky, but the Supreme Court is a coordinate and equal branch of government, with a significant but not absolute role in the making of substantive law. The President can properly build an agenda, and Congress can properly legislate, to abrogate Supreme Court decisions or limit their effects. The Court is not a proxy for the Constitution; as the years since Roe should have proved, a constitutional holding is the beginning, not the end, of a dialogue about the document’s meaning. Presidents are entitled to input on that question, especially when that input is phrased not as an attack on the Court’s legal reasoning, but as clear concern for the holding’s effects. This, in fact, is exactly the path Obama charted:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. (Applause.) I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. (Applause.) They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.

Roberts’ counterargument must rest on the theory that the Supreme Court is an utterly neutral body, immune and oblivious to politics, and simply engaged in a dialectic on the Platonic meaning of The Constitution, of which they are the sole arbiters.

This is a polite fiction that we occasionally tolerate, but in which we’ve never truly believed. Since the birth of the strong Supreme Court, it has been a political body. Marbury v. Madison emerged from an acknowledged political staredown between the Court and newly-elected President Jefferson, and it was the Court, not Jefferson, that performed Kruschev’s miracle: it blinked, while appearing not to. Since then, men we call heroes have taken it upon themselves to question the Court, and wound up on the right side of history for it. Lincoln campaigned against Scott v. Sanford and secured its reversal by war; Roosevelt came the closest to true impropriety by threatening the Court not with legislative reversal, but with irrelevance through dilution.

And, lest we forget, the modern conservative movement was built on attacking judicial power. Virulently. First for Brown, then for Roe (see, e.g., right), then for the principle of their existence (“activist judges!”). Conservatives can’t — or shouldn’t be allowed to — have it both ways, raising the Court’s mystique and grandeur as a defense only when it suits them.

Roberts is right to the extent that it’s better for our political culture if politicians do treat the Court’s reasoning as inviolate, even as they freely question their policy. After all, policy is not their core competency. But that’s not a commandment Obama broke, especially considering the profound policy implications, and blatant policy motivations, behind the Roberts Court’s entire campaign finance jurisprudence.* If Roberts is troubled by controversy, well, to paraphrase his most famous dicta to date, the easiest way to avoid being criticized for questionable decisions is to stop issuing questionable decisions.

* = As a favorite professor of mine says, there are two ways to read FEC v. Wisconsin Right to Life — either Roberts knows something we don’t, and doesn’t say it, or he’s making things up.

Click to enlarge. You don't want to miss a thing.

It’s all there. The nasty, senseless anti-elitism (“Young pinkies from Columbia and Harvard”); obligatory reference to Stalin, at the time history’s most recent monster (it would be Hitler, but he wasn’t around yet); the pathos-laced reverence for constitutional restraints that had already been dead for 35 years (“Junk the Constitution and declare a dictatorship”); and the notion that every dollar spent improving our country somehow brings us one step closer to socialism and monarchy. Truly, all it’s missing is a tea partier standing athwart the carriage, decked out in Revolutionary War garb, waving a Gadsden Flag or “Where’s the Birth Certificate?” sign, and shouting,  “I JUST LOVE MY COUNTRY.”

The e-mail closes with a grim foreboding, in obligatory blue font:

Those who do not remember the past are doomed to repeat it. Santayana

Apparently, the lesson we’re to take is that the same fears adhere with equal force today. But that’s not the conclusion I draw. This comic is from 1934; seventy-six years and one massive New Deal later, we’re no closer to socialism, Communism, or tyranny, and the Constitution is doing quite fine, thank-you-very-much. Might we instead take the cue that red-baiting back then was about as based in fact as red-baiting is today, which is to say, not at all?

That makes it fairly hard to say what I’m about to say. Yesterday, the Supreme Court elected to hear oral arguments in Snyder v. Phelps (yes, that Phelps), which presents the case of whether Fred Phelps’ outrageously offensive picketing of soldiers’ funerals (“God Hates Fags”; “God Hates Soldiers”; “Thank God for IEDs”) can, of its own force, constitute intentional infliction of emotional distress, or an invasion of privacy. The district court found in the affirmative; the Fourth Circuit reversed.

The circuit court is probably right.

There’re a lot of reasons why, and they’re better treated elsewhere. Basically, the First Amendment is a fierce creature that makes no apology for sacrificing quality in favor of quantity of dialogue. Sometimes that’s a good idea, even if it breaks down in the context of modern media, but combined with this country’s almost insurmountably high standard for privacy torts (libel/slander/invasion of privacy), and a general presumption against intentional infliction of emotional distress claims, the family of Lance Corporal Matthew Snyder are set to lose on the law what they’d win under any moral rubric. Their son died in service of his country; at the least, he deserves from us a respectful service. But this is the price the First Amendment exacts.

Interestingly, in another context, there’s ample room for the opposite conclusion. It’s not immediately clear that a law or a district court injunction restricting political activity at a cemetery, while it’s being used for a memorial service, would be invalid for unduly burdening the right to free speech. The case for our side is stronger if it’s a public cemetery, but it works in the private context too. In Grayned v. City of Rockford, 408 U.S. 104 (1972), the Supreme Court upheld regulations limiting noise near schools, on the theory that the noise affects the government’s interest in the related building; similarly, “reasonable time, place, and manner” restrictions on picketing in front of residences are constitutional to protect the inhabitant’s privacy and interest in having a home. See Frisby v. Shultz, 487 U.S. 474 (1988).

Not surprisingly, this comes up a lot in the context of abortion protesters, because those types are about one step removed from Fred Phelps as it stands. Truly, there’s a commonality between them — preying on the emotionally vulnerable with viscerally offensive images to express disapproval of a decision they have no interest in — that can’t be ignored. Anyways, the Supreme Court has repeatedly approved of “buffer zones” around individual women, and around the premises of family planning clinics, where otherwise protected speech acts are forbidden.  See Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997) and Hill v. Colorado, 530 U.S. 703 (2000). The key is that where private speech, even political speech, crosses the line to personal abuse, the legislatures and the federal courts ought not be powerless to protect the blameless citizens, by law or by injunction.

This leads inexorably to the horrifying conclusion that Lance Corporal Snyder’s family should’ve had the presence of mind to file for an injunction against Phelps… before grieving for their fallen son.

That’s a goddamn tragedy. I don’t care what your politics are — the conclusion would be the same if the culprits were antiwar protesters, or anything else for that matter — at the point where a family can’t say goodbye to their son in private, something has gone wrong in this country. Someone should write a bill, and I dare the Supreme Court to strike it down. *

* = Obligatory Star Wars reference removed…

Part and parcel of Judaism’s resistance to explorations in the realm of faerie, he goes on, is a discomfort with the semi-dualism that’s necessary to classic fantasy — the idea of a Devil figure, in other words, who seems capable of actually conquering the mortal world (be it Narnia or Middle-Earth, Fionavar or Osten Ard) and binding it permanently in darkness. As Weingrad notes, correctly I think: “Christianity offers a far more developed tradition of evil as a supernatural, external, autonomous force than does Judaism, whose Satan (or Samael or Lilith or Ashmedai) are limited in their power and usually rather obedient to God’s wishes.” Tolkien’s Sauron makes sense in a Christian universe; he makes less sense in a Jewish one.

He won’t say it outright in this article, but there’s an implied pejorative. Wiengrad, the literary critic to whom Douthat eludes, identifies the lack of dualism in Judaism as a point of interest. For Douthat, though, we can properly imagine that he considers this a failing. For Douthat, religion is supposed to be simple. That’s its virtue. Recall his critique of what he (wrongly) perceived as pantheism “Avatar”:

Traditional theism has to wrestle with the problem of evil: if God is good, why does he allow suffering and death? But Nature is suffering and death. Its harmonies require violence. Its “circle of life” is really a cycle of mortality. And the human societies that hew closest to the natural order aren’t the shining Edens of James Cameron’s fond imaginings. They’re places where existence tends to be nasty, brutish and short.

Religion exists, in part, precisely because humans aren’t at home amid these cruel rhythms. We stand half inside the natural world and half outside it. We’re beasts with self-consciousness, predators with ethics, mortal creatures who yearn for immortality.

This is an agonized position, and if there’s no escape upward — or no God to take on flesh and come among us, as the Christmas story has it — a deeply tragic one.

Pantheism offers a different sort of solution: a downward exit, an abandonment of our tragic self-consciousness, a re-merger with the natural world our ancestors half-escaped millennia ago.

But except as dust and ashes, Nature cannot take us back.

His conception of theology has no room for gnosis, or anything like it. Why would it have room for anything short of Manichean dualism?

But religious dualism has its pitfalls. It makes the world simple, and it makes for good storytelling, but there’s an inherent attraction to take it literally, and let it bleed over into the secular. The temptation is visible in modern politics, and it’s dangerous. You can see this in conservative politicians who treat their faith seriously: the Soviet Union is an “evil empire,” identified countries constitute an “axis of evil,” public figures are either “socialists” or “patriots,” etcetera. When it makes the crossover from mythology, dualism must be a shorthand expression of, not a substitute for, a full fledged moral calculus, or it forecloses thought, and elides the nuances that actually make up policy.

Douthat stumbles on the point of dualism’s primitive nature, sort of, when tracing its history through Christianity to paganism. The notion that there must be an absolute evil to balance an absolute good is a hallmark and a vestige of polytheism, one that’s preserved in modern Christianity in the character of the largely-invented Satan. Except in apocrypha, Judaism rejected the polytheistic graft, and we may be better off if we could do the same, or confine it to the silver screen. Dualism makes for good poetry, but when taken seriously, it also makes for high body counts.

In a political environment where the key question about healthcare reform is whether the President is a “socialist,” a primetime attempt to get back to the real fight, against abusive insurance regulations, is well taken.

But Human Events, a fairly mainstream conservative outlet (how sad is that?), sent around this e-mail to subscribers yesterday:

No, I do not know who signed me up for Human Events updates. And that’s not the point. The point is that the motivations for and the outcome of the Civil War are somehow now controversial, in a mainstream conservative paper. It gets worse, too. The e-mail goes on to offer a few revelations. DID YOU KNOW:

• That secession was legal
• That the Emancipation Proclamation did not free a single slave
• That leading Northern generals — like McLellan and Sherman — hated abolitionists
• That bombing people “back to the Stone Age” got its start with the Federal siege of Vicksburg
• That Stonewall Jackson founded a Sunday school for slaves where he taught them how to read
• That General James Longstreet fought the Battle of Sharpsburg in his carpet slippers
• That if the South had won, we might be able to enjoy holidays in the sunny Southern state of Cuba

These are all pretty bad, and pretty wrong. There’s a good reason you didn’t know about #1: because it’s not true. Although we can query whether Justice Chase had a conflict of interest, he was right to conclude, after the fact in Texas v. White, that secession was an illegal act utterly hostile to the values and the theory of the Constitution. And whether the Emancipation Proclamation was conceived as a military or a moral act is an interesting debate, but doesn’t alter, as this author seems to think, the conclusion that it was the Right Thing To Do. But unequivocally the worst has to be number four, which deserves its own highlight. The author finds it significant that:

Stonewall Jackson founded a Sunday school for slaves where he taught them how to read

Why would this fact be significant? Why does the author think I should care? Why does he care? Presumably, because it rehabilitates Stonewall Jackson as a partially moral man. But it really doesn’t. It shows that General Jackson was, at best, a benevolent slaver who believed in the “White Man’s Burden.” Partially benevolent slavery is still slavery. It’s still premised on the idea of black inferiority, and it still holds out human beings as property. Accordingly, it’s still grievously immoral, and the absence of physical cruelty doesn’t change that, or make it better. The cruelty we so often see in slavery is wrong, to be sure, but it’s a wrong that’s separate from and not necessary for the sin of slavery. By trying to argue otherwise, our author, a valued contributor to Human Events, seems to suggest that we should see where Stonewall Jackson was coming from. And that’s truly terrifying.

Bottom line: Human Events doesn’t understand the Civil War, a turning point in American history, a “constitutional moment” that improved the daily lives of every American, black or white, in a thousand different ways. They don’t care. Not about that, and not about the fact that half a million American soldiers died to secure those benefits. For them, it’s more worthwhile to tell your readers that, if the South had won the Civil War, maybe we wouldn’t have a country anymore, but hey. We’d always have Cuba.