Roe Falls: Time for a New Constitutional Convention

Today, abortion. Tomorrow marriage equality and contraception.

Today the U.S. Supreme Court overturned Roe v Wade, the 1973 decision that established a constitutional right to abortion. This was expected, given the recent leaking of the Alito draft opinion.

The Alito opinion purports to determine the validity of the most fundamental rights of American citizens not by any contemporary legal or moral principles, but rather by turning the clock backwards by two or more centuries to see what the Founding Fathers meant by the words they used in the Constitution. In practice, this amounts to an exercise in historical fiction by the six conservative justices as they attribute their own policy preferences to their favorite Founding Fathers.

At any rate, the high court’s Dobbs decision should not be viewed as some sort of sudden or unforeseeable event. Dobbs is neither an earthquake, tornado, nor any other kind of surprise, even before the Alito opinion leak. Not at all. Dobbs is the result of the basic structure of the United States Constitution.

Contrary to what the GOP politicians spout, the Constitution wasn’t written by a benevolent deity. It was written by a group of white men, many of whom were slave-owners. Indeed, slavery and concessions made to the slave states to induce them to sign on to the Constitution (e.g., the Three-Fifths Compromise) comprise the ultimate foundation of the U.S. Constitution. Chief among those concessions, and a leading cause of today’s Dobbs decision, is the Electoral College.

The GOP’s smart move was to recognize the Electoral College for what it really is: the single greatest gerrymandering device in all of American law. The Electoral College means that there really is no such thing as a national presidential election. Rather, the Electoral College means that competing candidates for the U.S. presidency run for governor in each of the fifty states, and if one wins enough states to obtain a majority of the Electors, he or she wins regardless of the popular vote.

The popular vote for president is still important, but not on a national basis. It’s important only on a state-by-state basis, that is, within each individual state. That accounts for the GOP’s long game on voting rights, because for most of the states, if they can flip a state by as little as one vote they get all that state’s electors. Just look back to Karl Rove’s efforts to fire a bunch of U.S. attorneys who said they had more important things to do than going after voter fraud. Moscow Mitch McConnell then piled on to make sure that Obama didn’t get to appoint Merrick Garland, while Trump got to appoint three far right conservatives. McConnell violated some “traditions” of the U.S. Senate, but what he did was neither unconstitutional nor illegal.

The take-away here is that the GOP has had a long game of using the Constitution as it exists to enforce their minority rule, and Dobbs is just the latest evidence of that. Marriage equality and even the right of Americans to obtain and use contraceptives are next on the 6-3 Supreme Court chopping block. That’s no exaggeration. Clarence Thomas has expressly said he wants to eliminate those rights.

What’s required goes far beyond just getting out the vote this coming November. The GOP has been working, and will continue to work, on sabotaging Americans’ voting rights. If that includes the federal seizure of state voting machines because Italian satellites were allegedly switching votes from Trump to Biden, so be it. Trump sent the U.S. Gov’t. off on a wild goose chase to investigate that, and as yesterday’s January 6 Committee hearing showed, only two or three sane officials in the Justice Department stood between the United States and a constitutional crisis.

No, what’s needed is a new Constitutional Convention so that we can scrap what is essentially a constitution designed to embrace slavery and advantage slave states and bring it into the 21st century. I, for one, am rather tired of listening to right wingers tell us what a group of 18th century slaveholders and slavery enablers might have been thinking.

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Putin, Ukraine’s Psychopathic Ex-Boyfriend

“What’s that you said?”

Putin might set a new trend in commercial office decorating: conference tables that begin at Chicago’s lakefront and end somewhere in DuPage County.

That’s an exaggeration of course, but so are claims that Putin’s insane. He’s neither insane nor irrational. For example, Putin knows what he’s doing is wrong. If that were not the case, then he would have no need to create false flag stories about British “crisis actors” staging fake Russian atrocities for the western media, and so on.

But Putin’s sanity and rationality are no guaranty that he’s going to win his war in Ukraine in any sense that we as Americans would understand. His military operations in Ukraine have failed very badly in any number of respects, and Russia doesn’t have the conventional military capacity to completely overrun Ukraine, install its own puppet leader in the old Soviet style, and hold the country.

Putin is a psychopath as opposed to just a typical insane or irrational person. A psychopath can plan things, understand his environment, and act so as to achieve his objectives. A psychopath knows right from wrong, but it makes no difference to him. He feels neither remorse nor regret about anything he’s done. Slaughtering civilians and children, bombing hospitals, whatever he deems necessary he’ll do, and he sees himself as above any conventional sense of morality. Killing someone is no more important to him than deciding whether he’ll have cereal or scrambled eggs for breakfast.

In short, Putin is the geopolitical version of the psychopathic, jilted ex-boyfriend who stalks his ex and won’t stop stalking her until he either gets her back or kills her.

His revanchist idea about dragging Ukraine back into Russia isn’t new. Pan-Slavism as a political ideology goes all the way back to the post-Napoleonic period, and one of its components is the common Eastern Orthodox faith. Americans have a hard time grasping things like pan-ideologies because in this country they’re usually doctrines of the political fringe (see, e.g., Proud Boys). However, neither Pan-Slavism nor any affinity for co-religionists has ever been able to completely extinguish the nationalism of the various individual states that comprise the Slavic world. Sure, Slavs of different nationalities fought under the Austrian flag in the 19th century, but that was because other factors were at work. To Slavs within the Austro-Hungarian Empire, domination by Hungarians (Magyars) would have been worse than domination by the Hapsburgs. In June 1914, Slavic nationalism and its desire to throw off the Austrian chains lit the match that led to World War I. Russia mobilized to protect its fellow Slavs in Serbia from the combined Austro-Hungarian and German Empires.

And just like the Serbians jilted Franz Josef, the Ukrainians have jilted Vladimir Putin. To Putin, Ukraine is the girl who used to be his. Ukraine used to admire Vladimir’s pecs when he went horseback riding with no shirt on. Then she started flirting with westerners. Next she held a wild street party where everybody wore orange. She threw Vlad’s good buddy Viktor Yanukovich out of her house, and for the last eight years he’s had to live in Vlad’s basement. Vladimir’s FSB even showed him a photo of Ukraine hugging NATO, and things might have gone further if he hadn’t stormed into Crimea.

So, like the obsessed, psychopathic ex who just can’t quit his old girlfriend, Putin will pursue her, no matter what. Putin is what you’d get if you turned Jodi Arias into Russia and Travis Alexander into Ukraine. Obsessed ex Jodi Arias killed Travis Alexander rather than let him leave their relationship, and in the same way Putin would sooner destroy Ukraine brick by brick than allow it to fall in love with the West and be a democracy. Like Jodi Arias and other obsessed, psychopathic ex’s, Putin’s bottom line is that if he can’t have Ukraine, then nobody can have Ukraine. That’s why Putin will keep firing missiles and artillery into Ukrainian cities. He knows at some level that he’ll never hold Ukraine in his arms again, but he can sure as hell make the country unlivable. That’s his way of killing his unattainable ex-girlfriend.

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Putin Will Get Boer-ed in Ukraine

Maybe this Ukraine thing wasn’t a good idea after all…

Last week Putin began his blitzkrieg invasion of Ukraine. His war machine is using rockets and artillery against the much smaller, but more highly motivated, Ukrainian military.

In anticipation of economic sanctions, Putin built a war chest of USD630 Billion. That sounds like a lot of money, but wars have a funny way of outlasting the money available to pay for them. With the ruble no longer accepted anywhere in the west, and with Russia cut off from every advanced funds transfer system, he may not be able to use that money. But even if he could use it, would USD630 Billion be enough to make a difference for Putin?

For some historical context to answer to that question we can turn on the Wayback Machine and revisit an earlier conquest of a hostile little puppy state by a Great Empire with an overwhelming military machine: the Anglo-Boer War of 1899 to 1902 in South Africa.

In 1899, Great Britain was the preeminent economic and military power of the world. London had not yet ceded to New York the title of world financial center. The United States and Germany had been catching up to Great Britain both economically and militarily, and in the latter sphere Kaiser Wilhelm II was determined to challenge England for naval supremacy. But England was still heads above the rest, and when European nations considered important policy choices they gave a great deal of weight to how Whitehall might react to the change.

From a geographical perspective, Russia today sees Ukraine, part of its “near abroad,” as a territory that it must dominate, if not control. In 1899, South Africa held an importance for Great Britain similar to that of today’s Ukraine for Russia. South Africa was key to maintaining a reliable and defensible sea route between England and India. Cape Town was the re-coaling station for steamships on that route. And although by 1899 the Suez Canal had already been open for about thirty years, England could not rely on it: it was owned and operated by France. If, in a conflict, France were adverse to England (which had happened a few times in the past), access to India through the Suez Canal would be lost.

Natural resources ran a close second to global strategy concerns. Within the fifteen years preceding the outbreak of the Anglo-Boer War, gold had been discovered in the Transvaal, and diamonds in Witwatersrand, making South Africa one of the richest spots on the planet. South Africa had become the leading source of gold in the world. The world was on the gold standard then, and because London was the center of world finance, England had a keen interest in the volume of gold in circulation and held in government reserves. Too little gold would unduly constrain commercial and industrial access to capital, while too much would risk metallurgical inflation. Europe had endured that type of inflation back when Spain was its most powerful country. The massive quantities of gold and silver that Spain imported from its possessions in central and south America caused more than a few monetary problems.

Russia now claims that ethnic Russians are being mistreated by Ukraine’s government, which Russia views as illegitimate. By 1899, the Boers had declared the Transvaal and the Orange Free State to be independent republics not subject to rule from London. The many Englishmen extracting wealth from South Africa’s mines in these new Boer republics were second-class citizens, without voting and other civil rights.

Today Russia worries about the consequences of having a successful fledgling democracy like Ukraine on its doorstep because it might give Russian citizens the idea that democracy might be worth a try. Similarly, in 1899 Britain viewed the newly declared Boer republics as an affront to its sovereignty over South Africa, and it worried about the effect such new little breakaway states might have on its subjects in other British colonies around the world. Would they start breaking away too? This was an early domino theory.

Just like Putin’s propaganda about the benevolent nature of rule from Moscow, the British in 1899 thought that British rule was a divine gift to all the empire’s subjects, even if some of those subjects were trying to persuade the Brits to leave by shooting at them.

Russia looks down on the people of Ukraine in the same way that Great Britain looked down at the Boers. Both Russia and England thought they’d have a splendid little war, that it would be over quickly, and that they would easily squelch these little republics.

But every present-day Ukrainian, like every Boer back then, was armed to the teeth and ready to fight. Sure, the Boers were not a regular army with chains of command and discipline in the ranks, etc. But, like Ukrainians today, that strategic weakness becomes a tactical strength when the irregular force is highly motivated and fighting against an outside invader on its home turf. The Boers would attack some organized British column moving through the countryside, and then melt back into the wilderness. The Ukrainians have already ambushed some Russian motor convoys. The Russians will also have to fight Ukrainians in urban environments, which is a nightmare for an attacking force. Think Stalingrad.

So how does all this tie in to Putin’s USD630 Billion war chest?

Well, in October 1899, the government of Prime Minister Robert Cecil, Lord Salisbury, calculated that England’s fine little war against the Boers could be “put through” for 10 million British pounds.

By the time peace was finally negotiated in May 1902, the British government had spent more than 217 million British pounds on its war against the Boers. That was enough to bring down the government of Lord Salisbury, which was replaced by that of Arthur Balfour. To get an idea of how much money that was at the time, it represented 12% of the entire gross national product of the United Kingdom – then the world’s leading economy – for the preceding year.

Were we to apply that same percentage to the 2020 GDP of the United States, today’s leading economy, that would be 12% of USD20.94 Trillion, or about USD2.51 Trillion. That would be not quite twice Russia’s entire GDP of USD1.483 Trillion. So Tsar Vladimir could well find himself a bit short on funds as his Ukraine war drags on, and that’s without any consideration of what happens when no other country in the world accepts your currency.

If Putin had read up on the Anglo-Boer War, there’s no way to know whether he would have changed his mind about invading Ukraine. But at least he would have learned that it was possible, and even likely, that Russia would get Boer-ed.

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Daily Beast: Quarantine Beard Has Got to Go

Last week we ran a post about lock-down beards. Alaina Demopoulos at The Daily Beast has a somewhat different take on the issue, and is well worth a read. Says Demopoulos: “With our new face-mask reality, it’s nearly impossible to pull one off.” You can read her article here.

 

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The Original Lock-Down Beard

For many guys, the current coronavirus lock-down has provided an opportunity to see how they look with a beard. For some it’s an experiment; for others, a protest. But there is a historical precedent for lock-down beards of which we should take note: namely, Pope Clement VII. Here’s a shot of him before he grew his lock-down whiskers:

_{Clement VII, a/k/a Giulio de Medici (1478-1534, and Pope, 1523-34), before growing his lock-down beard.}

Born into the Medici clan, his early life had some rough spots. His father, Giuliano de Medici, was assassinated by the Pazzi conspirators right in the Cathedral of Florence (a/k/a Il Duomo) in the same year that his son, the future Clement VII, was born. They stabbed Giuliano nineteen times and then finished him off with a sword-blow to the head. The proverb “politics ain’t bean bag” may have originated around this time.

Back in Clement VII’s time, the pope was a secular as well as a religious leader, and the Vatican was the capital of certain lands and city-states in Italy now referred to as the Papal States. Back then it was called the Republic of St. Peter. This dual religious/temporal jurisdiction had long troubled reformers, including Martin Luther. 

In the 1520’s Charles V, a Hapsburg, had ascended to the Spanish throne and was also Holy Roman Emperor. He took the Holy Roman Empire business more seriously than his predecessors and wanted to unite Europe under his control. Charles’s growing power, together with the wealth flowing into his coffers from the New World, caused Clement VII to fear that the Emperor would try to dominate not only the Republic of St. Peter and the rest of Italy, but also the Church itself — not that Clement VII was looking for more problems to solve. The Holy See still hadn’t figured out exactly how to handle the Martin Luther problem. But Clement saw the Hapsburgs, who had forces to the north in Austria and to the west in Spain, as a bigger danger than an Augustinian monk in Wittenberg. Clement, in his temporal capacity, allied himself with France, then under Francis I, an enemy of Charles V. They called themselves the League of Cognac. The next time you’re at your favorite watering hole you can tell the bartender that cognac was a military alliance before it became a brandy.

War began.  

First there was bad news for Pope Clement and the League of Cognac. The forces of Charles V, Holy Roman Emperor, defeated the French forces near Pavia, in Italy. Then there was bad news for the Holy Roman Emperor: after winning that battle, he found that he didn’t have any money to pay his soldiers, so they threatened to mutiny. At first this looked like good news for Clement, but it became bad news when the Emperor agreed to march on Rome. Why? Because there was a lot of valuable, portable stuff in Rome that his soldiers could take as payment. Back then, pillaging conquered territory was an accepted technique for balancing the defense budget.

More than 30,000 Holy Roman Imperial troops, including some 14,000 from German principalities, started to march south to Rome. They got there at the beginning of May 1527. And when they got there, they unleashed the Renaissance version of shock and awe.

Depiction of the Sack of Rome, 1527

With only about 5,000 militia (citizen-soldiers with questionable training and even more questionable armaments) and around 200 Papal Swiss Guards, Rome was not well-defended. The Imperial forces breached the city’s walls on the first day and overran Rome’s militia. The Vatican’s Swiss Guard, though vastly outnumbered, put up one of the most memorable last stands in military history, holding off the Hapsburg troops so that Clement VII and his entourage could make their escape through a secret passageway to the Castel Sant’Angelo. Ironically, much of the Swiss Guard’s battle with Hapsburg troops took place in the Vatican’s Teutonic Cemetery. The passageway, known as the Passato di Borgo, is still there, though it’s no longer secret.

Vatican Swiss Guards, present day (do NOT make fun of their uniforms)

Churches, monasteries, palaces, shops and homes were looted and burned. The Vatican Library, with manuscripts and scrolls going back to the days of the ancient Romans, averted destruction only because one of the Imperial commanders, Philibert of Orange, decided to use it as his headquarters. Thus did many of the most important early writings of Western Civilization escape destruction by a hair’s breadth.

And speaking of hair’s breadths, this is when Clement VII started to grow his lock-down beard. As much as Charles V wanted to make war on the League of Cognac, he didn’t set out to conquer Rome, and as much as he disliked Clement VII, any king would think twice before ridding himself of a high-ranking priest, no matter how meddlesome. But locking down a pope is far short of killing him, and Charles V kept Clement VII prisoner in the Castel Sant’Angelo for the better part of a year. During his imprisonment Clement VII grew a full beard as a sign of mourning for the sack of Rome:

Pope Clement VII with lock-down beard.

Clement’s beard may not seem like a big deal, but one has to see it in context. Canon law required priests to be clean-shaven. Then again, Pope Julius II, the “warrior pope,” had worn a beard for nine months in 1511-12 as a similar sign of mourning for the loss of Bologna, one of the papal cities. Unlike Julius II, though, Clement VII kept his beard until his death in 1534. Clement VII never knew it, but he started a papal fashion trend in facial hair. His immediate successor, Paul III, and another two dozen popes down to Innocent XII, who died in 1700, all wore beards.

The 1527 sack of Rome is mostly forgotten now, but its consequences were immense. The largest overall consequence was a power shift away from Rome and towards the Emperor Charles V. The Emperor was able to impose his will on the Holy See. The most famous consequence of this was Clement VII’s refusal, at Charles V’s direction, to annul the marriage of King Henry VIII of England to Catherine of Aragon so that Henry could marry Ann Boleyn. Catherine’s nephew was none other than Charles V himself, and he was not about to let his aunt be so humiliated. The English Reformation followed. 

Charles V also imposed on the Church a greater degree of orthodoxy than had been the case under Clement VII. Recall that the Church was still processing its reaction to Martin Luther. The Hapsburg domination changed all that. The Counter-reformation began in earnest, and under Charles V the influence of the Holy Inquisition became pervasive throughout Catholic Europe.

Well, somebody might have been expecting it.

Any chance that Luther and his followers might be brought back within the Church was extinguished, and the division between Catholics and Protestants in Europe became permanent.

So as you admire your lock-down beard in the mirror, remember that these things have some interesting and significant historical precedents. 

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Trump’s Push to Reopen the Economy and the War on Christmas

A Parliamentary soldier breaks up a Christmas celebration, ca. 1645.

Remember the alleged War on Christmas that Fox News pounds every year in order to pour gasoline on the flames of the Culture Wars? For about two decades Bill O’Reilly, formerly one of the chief strategists of the victimhood racket that is Fox’s War on Christmas, used this non-existent war to sell the two products that his viewers simply couldn’t get enough of: grievance and rage.

What does the War on Christmas have to do with the present push to reopen the U.S. economy?

For that, we go back once again to the period of the English Civil Wars (plural), which, believe it or not, is a nearly inexhaustible source of information for understanding the United States in the 21st century.

Christmas in seventeenth-century England would be very recognizable to contemporary Americans. Churches, homes and other buildings were decorated with holly and ivy. Religious services on Christmas Day were well-attended. Gifts were exchanged with family and friends. If you were in one of the well-off social classes, you’d give Christmas boxes with little gifts and sweets to your servants, your tradesmen and maybe even the poor. Just as in Dickens’ A Christmas Carol, the holiday dinner was a great feast, with bumpers of brown ale, roast beef, ‘plum-pottage’ and minced pies. One of the favorites was a block of Stilton cheese submerged in that brown ale, and, if reports are believed, this dish gave off an aroma as pungent as that of an un-emptied chamber pot at mid-morning. People danced, sang, played card games and went to see plays and mummer parades. These plays were hardly morality tales. The biggest difference, of course, was that their Christmas celebrations went on for twelve days, which is where we get that repetitive partridge and pear tree carol that’s still with us today. (Maybe the idea was to take a swig of ale for each of the twelve days and see if you were still upright at the end of the song.)

None of this sat well with the Puritans running the Commonwealth. To them, the celebration of Christmas was nothing more than “a popish festival with no Biblical justification,” an excuse for “wasteful and immoral behaviour…with the [t]rappings of popery and rags of the beast.”

So in 1644 the Puritan-led Parliament banned the celebration of Christmas and, by law, replaced it with a day of fasting and prayerful contemplation. Soldiers patrolled the streets of London breaking up any parties and seizing any food they suspected was for a Christmas meal.

What’s important for today’s coronavirus crisis is that the Puritans ordered all shops and markets to stay open throughout the 25th of December and the eleven other days of Christmas. This was a signal failure of the Commonwealth. The shops and businesses didn’t re-open, and the citizenry didn’t leave their homes to patronize England’s commercial establishments. More importantly, the Puritans created an undying ill will against them for trying to take Christmas away from the English people. The Puritans’ Old Testament sentiments undoubtedly contributed to H.L. Mencken’s definition: “Puritanism: The haunting fear that someone, somewhere, may be happy.”

There’s a lesson here for Trump, who thinks that, following his abject failure to prepare for and meet the Covid-19 crisis, he can reopen the economy by fiat. When a government attempts something beyond its reach, most likely it will not just fail, but will produce a result directly opposite to that which it wants to achieve.

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Precedent for Adjourning Congress?

King Charles I of England/ Studio of Van Dyck

Trump now claims that he has the power to adjourn Congress so that he can make appointments without the advice and consent of the Senate.

Have we seen this movie before?

Charles I of England fought with Parliament over whether the latter would impose taxes he thought necessary. Charles dissolved Parliament, solely on his own authority, three times, the last of which was in 1629. The period of his reign from 1629 through 1640, when he had little choice but to summon what became known as the Long Parliament, is often called Charles’ period of personal rule.

Regarding Trump’s claim of power to adjourn Congress, it’s worthwhile noting that in 1641 the Long Parliament pressured Charles into signing something called An Act Against Dissolving Parliament Without Its Consent. Not surprisingly, this law provided that Parliament could not be dissolved without its own consent.

Our own Founding Fathers knew by heart all of the events from Charles’ ascension to the English throne, through the Protectorate, and into 1660, the year of the Restoration. The English Civil Wars (plural) were constantly before them when they were drafting the United States Constitution. In fact, some of them had ancestors who were either Roundheads or Cavaliers. One shouldn’t be surprised at how closely the office of President of the United States parallels that of the Lord Protector, Oliver Cromwell.

Given this background, you can bet that the Constitutional terms under which Congress can be adjourned without its own consent are narrow and quite specific.

Trump doesn’t take advice, and he hardly knows American history, much less English. He’d undoubtedly like the term “personal rule.” But before he continues to assert his right to adjourn Congress on his word alone, he’d do well to learn a little more about Charles I — he didn’t end up ahead of the game.

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The Statute of Provisors under Edward III

Edward III of England (1322-1377)

Most Americans derive what little they know of the Middle Ages from HBO miniseries. Even ardent Wikipedia fans erroneously believe that England only broke with the Church of Rome when Pope Clement VII refused to grant Henry VIII an annulment of his marriage to Catherine of Aragon so that he could marry Anne Boleyn and try again for a male heir. We should not blame ourselves too harshly for this lack of knowledge since Hollywood has spent the last seventy years warping historical reality, and of no era is this more true than the medieval one. One can begin to correct these distortions by keeping in mind that the Age of Chivalry was not the Age of Dentistry. That’s why nobody was smiling in those old paintings.

Contrary to conventional wisdom, Henry VIII was a late-comer to the Break-with-Rome game. Tensions between England and the Papacy had been brewing for centuries, and one of the first big ruptures was known as the Statute of Provisors, which was enacted in 1351 during the reign of Edward III (1322-1377). That’s almost two hundred years before Anne Boleyn’s first date with Henry VIII. The Statute of Provisors dealt with the Pope’s power of disposition of benefices in England.

What, you may well ask, is a benefice? It’s not a misspelling on a form letter from your health insurer. Rather, a benefice was a high (and high-paying) position in the Church such as bishop, abbot or cardinal. The Statute of Provisors dealt with the thorny issue of whether the pope or the English king had the right to appoint prelates in England. To our modern ears all that may sound like choreography for angels on pinheads, but back then it was a matter of the greatest importance.

William the Conqueror recognized the importance of the Church to consolidating his newly-acquired hold on England. He compelled all the cathedral cities in England, as well as in those parts of France he controlled, to elect his nominees as bishops. This process, in which the king “invested” his appointee with a bishop’s ring and staff, was called “investiture,” and it gave the bishops a badge of both spiritual and temporal authority. Bishoprics had been handled this way across Europe for centuries.

Then, in 1075, Pope Gregory VII up-ended all that. He prohibited laymen from electing bishops (“lay investiture”). He held that the Church was both independent of the state and above it, and that no temporal ruler could confer ecclesiastical authority. Gregory VII’s edict gave rise to what later became known as the Investiture Controversy. But things didn’t quite go as Gregory VII had planned.

On the Continent, in response to the edict, Henry IV, the Holy Roman Emperor and Rex Germanorum (King of the Germans), declared that Gregory VII was no longer pope. In return, Gregory VII excommunicated Henry IV. Excommunication was a big deal back then, much bigger than canceling a State of the Union Address. When the Pope excommunicated a king, it meant that all that king’s vassals were released from their feudal oaths of loyalty to him, and that anybody could invade that ruler’s domains without committing a sin.

But Henry IV beat him to the punch and invaded Italy, forcing Gregory VII to flee Rome. Then, in a supreme act of lay investiture, Henry IV proclaimed his appointee, Clement III, pope.

In England the Investiture Controversy was much less sanguinary, in large part because a very smart bishop, Anselm, of ontological argument fame, designed a compromise that avoided war and fleeing pontiffs. Taking Anselm’s advice, Henry I, King of England and second son of William the Conqueror, resigned his claim to invest bishops with ring and staff, which were the symbols of spiritual authority, but required that all bishops had to be elected in the presence of the king. Anselm’s settlement was eventually put in effect throughout Europe by the Concordat of Worms in 1122.

Control over high Church posts meant better control over your kingdom. Prior to the Reformation, the Church in Western Europe was universal in both name and reality: it had a monopoly on all knowledge and learning, and it had the only organized and regimented bureaucracy that was common across Europe. It had all sorts of internal frictions and contradictions, of course, but at its root it was one organization led by one man. To the extent that any coherent body of law existed in Europe after Rome fell, it was the canon law of the Church of Rome. In an age when the common law in England was still in a preadolescent stage, canon law was a sophisticated and mature product of centuries of work by scholars. It would take centuries for English lawyers to develop the common law we now take for granted.

Bishops controlled the administration and interpretation of the canon law, which did not depend on the king. They believed, and taught their faithful flocks to believe, that the canon law was superior to what little civil law existed. Ecclesiastical courts were to be found at every bishop’s seat (the cathedra), and these courts tried much more than just errors of faith. Because spirituality informed nearly every phase of life, the ecclesiastical courts had an undefined jurisdiction capable of almost unlimited extension, much to the chagrin of feudal and seignorial courts. Marriage, inheritance, theft and usury were all justiciable before the bishop’s seat.

Bishops also handled contract disputes: in an age where most people could neither read nor write, and, long before the doctrine of consideration was even thought of, agreements were customarily confirmed with the sanction of an oath made before witnesses. Breach of an agreement meant a breach of faith, which was a crime in the eyes of the Church. Even down to the present day “good faith” is part of contract law, and bits and pieces of medieval canon law have survived under the heading of equity.

And that’s just the legal side. The Church controlled all communications. It was the internet of its day. If one king wanted to send a message to another, it had to be heard by a priest in the local tongue, translated into Latin, carried overland, and then translated from Latin into the language of the receiving kingdom. (And we thought the old telephone modems were slow.)

The Church was an indispensable tool of the throne’s political messaging as well. In an era without mass communication and a population that was mostly illiterate, bishops told the lowly parish priests what to preach to their flocks every Sunday.

The positions of cardinal, bishop and abbott were important not only because of their legal roles, but also because they were lucrative. Bishops and abbots were often among the largest landowners in an era when land was the predominant form of wealth.

By the mid-14th century, at the height of Edward III’s reign, the old Concordat of Worms was no longer working very well for England. There had been some developments on the ground that impelled a response.

First, Edward III had to deal with the Avignon papacy. For about sixty years popes had resided not in Rome, but in Avignon, France. This wasn’t good for England. The Avignon popes were subject to undue influence, if not outright control, by the French king. Since England and France were in the middle of the Hundred Years War, this did not sit well with Edward III.

The Avignon popes also liked to flex their theological muscle to show that they were still popes, even though they weren’t in Rome, and controlling foreign benefices was an important muscle to flex. A “provisor” was a nominee to an English benefice who had been named by a “provision” from the pope. So Edward III was faced with a situation in which his enemy, France, had substantial control over law, spirituality, communications, and wealth in his kingdom.

This must have really irritated Edward III because, militarily, he was in a strong position. In 1346 he’d won a major victory over the French at Crecy, in northern France, and he had put the Pas de Calais firmly under English control.

As if things weren’t complicated enough already, the Black Death had arrived in England in June 1348. By the summer of the following year it had killed anywhere from 40% to 60% of England’s population. Since the Black Death did not distinguish peasant from prelate, a large number of English benefices became vacant, and the pope in Avignon was busy “provising” their replacements. The upshot was that by 1351 almost all the benefices in England were in the hands of foreigners appointed by a pope under the French thumb.

Edward III’s Statute of Provisors found this situation was “to the damage and destruction of the whole realm.” The statute imposed a penalty on any person attempting to disturb the “canonical order” by asserting any rights of a papal provisor to any bishopric in England. The provisor, together with his advocates and his retinue, were to be arrested and brought before the king’s court to answer for their offense. If found guilty, they would be imprisoned until they renounced any papal provision and found someone to stand surety that they would not re-offend.

All this may seem rather distant, but on reflection some parallels with Brexit become apparent.

 

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Of Democrats, Donatists and the Perils of Zero Tolerance

St. Augustine arguing with the Donatists

Virginia. Northam. Fairfax. You could almost be forgiven for expecting the phone to ring with the caller asking if you’d consider becoming the next Governor of Virginia. As The Clash put it back in the 80’s,

Should I stay or should I go?
If I go there will be trouble
And if I stay it will be double

The Democrats have chosen the path of zero tolerance, while the Republicans, led by an orange-hued exemplar of inhumanity and fraud, have occupied the territory of anything goes. Sadly for the country, both sides view any hint of moderation as going too far.

Zero tolerance sounds great and looks good on paper, but actual cases raise some tough issues. Humans, by nature, are imperfect, and their actions are often wrongful or just plain wrong. The controversies currently roiling the Democratic Party in Virginia have been triggered by the sexist, racist or even potentially criminal personal histories of certain incumbent Democratic politicians. Some scandals are just too big to tolerate. But how do we judge that?

A policy of zero tolerance can easily lead to absurd results because, by definition, it discards any notion of different degrees of culpability. Democrats would do well to remember that not all larceny is grand. The Republicans should be careful not to start laughing too hard or too soon because there are sure to be similar or worse stories that will become their own “damn spots” in the 2020 election cycle.

The Democrats are not the only organization to have dealt with this issue. If we could borrow Mr. Peabody’s Wayback Machine and set the dial to the the fourth century A.D., we’d see an uncanny similarity between the behavior of the Democrats today and the Donatists of that long-gone era.

What’s a Donatist? It’s not a person who likes or makes doughnuts.

Diocletian, the Emperor of Rome from about 284 A.D. to 305 A.D., was intent on restoring the Roman Empire to the glories of the second century A.D. Yes, even the ancients were afflicted with nostalgia. Not unlike some conservative politicians of the present day, Diocletian believed that the root cause of the reverses that had been suffered by the Empire were due to the loss of the traditional virtues of the Roman citizen: Roman men should serve the state in the military ranks, if not in the government; spouses should remain faithful to each other; and children should respect their parents and feed and house them in their old age. Most worrisome, however, was the perceived decline in the worship of, and sacrifice to, traditional Roman gods.

Sound familiar? It’s not known whether Diocletion had any MRGA (Make Rome Great Again) togas printed and distributed to his followers, but it wouldn’t be surprising.

Diocletian believed that one of the big causes of the decline in worship of traditional Roman deities was this Christianity business that got started in Judea. He needed to get rid of the Christianity cult, and he started the last great persecution of Christians in the Roman Empire. New edicts were issued. Christians could not sue in Roman courts; they could be sued, but could not defend themselves. Freed slaves who had become Christians were re-enslaved. Christians who refused to obey could be burned alive, or be fed to the lions in the local amphitheater for entertainment of the masses. (No ESPN then.) Most important for our purposes, though, Christians were required, on pain of death, to hand over all of their sacred books and scriptures for destruction.

Lions expressing dietary preferences.

Early Christian theology was far from uniform. In some areas Christians threw themselves into the flames rather than surrender their written scriptures, while in others, handing a few written texts over to a Roman magistrate was no big deal. Those who surrendered the scriptures were called traditors, from the Latin trado, tradere, meaning to hand over or deliver. The modern English term traitor is derived from traditor.

In North Africa, the Diocletian Persecution gave rise to Donatism. The Donatists held that true believers should have nothing whatsoever to do with any traditor bishop or priest. As is often the case with any religious principle, it quickly expanded far beyond its original scope and became a zero tolerance dogma: any sacrament administered by polluted hands was itself polluted and ineffective. For the Donatists, a priest or bishop living in sin was incapable of administering sacraments. Donatists denied the spiritual powers of clerics of whose morals they disapproved. Given the highly questionable condition of ecclesiastical morals in the later Roman Empire, non-Donatist prelates saw that this doctrine could destroy the entire structure of the priesthood. The flock ought not to sit in judgment on the pastor. Like any zero tolerance policy, in practice it meant that its enforcers would rather split the party than split the difference, as the saying goes.

On the Republican side of the aisle, zero tolerance takes a different form and means that compromise is outlawed. For Republicans, compromise means a capitulation, a betrayal of their cause, whether it’s a wall or tax cuts or anything else.

The Donatist doctrines never took root in the Christianity of continental Europe, though they continued in North Africa for another four centuries without any real resolution. Whether you were a heretic or not depended on whether your side was in the majority or the minority in your area. The controversy only went away when the Islamic wave swept westward from Arabia across the North African region.

And the rest is history….

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Taxing Capital

Sen. Elizabeth Warren (D-MA)

Senator Elizabeth Warren (D-Massachusetts) has suggested a wealth tax of 2 percent on assets above $50 million, and 3 percent on assets of more than $1 billion. She estimates that such a tax, which would by its nature be limited to the very rich, could generate $2.75 trillion in revenue over a decade. To paraphrase the late Everett Dirksen, a trillion here, a trillion there, and pretty soon you’re talking real money.

Starbucks billionaire Howard Schultz and former NYC mayor billionaire Michael Bloomberg have, of course, slammed Warren’s proposal as a gateway drug to Venezuela-Maduro style socialism. Continued critiques from Schultz, Bloomberg and the billionaire class will probably do more to garner support for Warren’s proposal than she herself could do with a thousand townhall meetings.

Schultz and Bloomberg apparently have forgotten that while they have ascended to levels of wealth that would make Croesus look like a homeless person, hundreds of millions of Americans (and Britons, and Europeans, etc.) have been undeniably left behind by the Great Prosperity of globalization and financialization of the economy. Wealth taxes have been proposed before, though not in the U.S.

Towards the end of the First World War, Great Britain considered imposing a wealth tax. Throughout the war, Great Britain not only had to equip and supply its own forces, it also had to advance funds to its allies France, Russia and Italy since none of them had enough cash to purchase necessary war matériel. By 1917, the cost of the war, including subsidies to allies, had put unprecedented strain on Britain’s national budget.

During the first three years of the war, taxation rates in Great Britain had increased significantly, and the levels of income to which the tax was applied were lowered. In consequence, many segments of the population that had never before paid income taxes were moved onto the tax rolls. This was accompanied by some erosion of civilian support for the war. In Parliament, Labor members argued that the working classes were bearing a disproportionate share of the war’s cost. Coal miners in South Wales even staged a tax strike in 1917. Labor proposed a tax on capital to ease the deficit, but the Tory constituencies opposed additional taxation generally, and a levy on capital in particular.

Ultimately, the British Treasury rejected any capital levy over concerns that it would cause a slump in asset prices because asset holders would try to raise capital by sales of those assets. That would depress capital markets and, most worrisome of all, possibly reduce the United States’ confidence in the soundness of Britain’s economy.

Of course today, despite nearly two decades of continuous foreign wars, the U.S. is not in the position Great Britain occupied in 1917.

 

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