Then they came for me. . .

Pastor Martin Niemöller’s famous observations concerning the perils of silence in the face of injustice because “it wouldn’t happen to me” has been frequently overused and sometimes abused. There is no doubt that it contains truth, as do most quotations and  clichés do. I hesitated briefly to paraphrase it, but have reconsidered because it illustrates something that is about to happen here in the good old USA.

With apologies to the pastor: First they came for the bump stocks, I did not own a bump stock or have any use for one; so I did not object. Then they came for the semiautomatic rifles, I did not own one or have any use for one; so I did not object. Then they came for the handguns, I did not own a handgun or have any use for one; so I did not object. Then they came for me, and there was no one left to object.

On Thursday, March 29, 2018, the Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) published a notice of proposed rulemaking. (See Federal Register, Volume 83, No. 61, pp. 13442 – 13457, (available on-line).) The sheer number of pages in the Federal Register, where administrative rules and proposed rules, among other bureaucratic missives are published, should give us pause. But no matter. The 15 pages contain proposed rules changing the classification of the so-called bump stock devices that are alleged to make the semiautomatic rifles fire rapidly, almost to the speed of machine guns. The effect of the classification would be to ban the manufacture, sale, transportation, and even mere possession of these devices.

This notice uses a lot of words explaining the rationale for the reclassification of these devices, which earlier had been considered and rejected by ATF. The mass shooting in Las Vegas, Nevada in October 2017 spurred the anti-gun crowd, and various politicians, to make political points by calling for a ban. Even President Trump, who had been considered a friend of the right to bear arms, joined the fray against bump stocks. The reason seems to be that they are an easy target for politicians because (1) there are not that many of them compared with the total population, and thus might not generate the volume of outrage banning more common items, and (2) politicians doubtless believe having ATF reclassify the devices would spare them having to vote in Congress for such a ban, which might expose them to trouble from those opposed to such control.

Machine guns have been severely restricted for some time. An Act of Congress in 1986 prohibited further manufacture, sale, or even possession of machine guns manufactured subsequent to that date for sale to private persons. That Act did not ban previously manufactured and lawfully possessed machine guns, but required permits and registration.

The current proposed regulation, the benefit of which is problematic, is troubling for reasons beyond the possible use of such a device by some deranged or fanatical person committing mass murder and mayhem. The notice estimates that there are around 500,000 bump stocks in private hands. Considering there may be well over 300 million firearms all told in private hands in the United States, that does not seem like many. In truth it is not, and those who own them might be considered a vulnerable minority. To understand this concern one has to be cognizant of statutory and rule-making procedures.

The only Constitutional method for enacting statutes is for both Houses of Congress to pass them, and the President to approve by signing. Congress often passes laws that are general, and delegates specific applications and definitions to various regulatory agencies. In the case of bump stocks, the statute (18 U.S.C. §922 (o)) bans possession by private individual of machine guns, but excepts lawful possession or transfer of a machine gun that was lawfully possessed before the date of the statute. A bump stock is an accessory, which has the effect of, but not the specific mechanism for, rapidly firing a rifle. Through a strained, and to a large degree sophistic analysis, ATF has proposed to rule that a bump stock when attached to a conventional, semiautomatic rifle, such as an AR 15 has the effect of converting that rifle into the machine gun, and thus fall under the statutory definition of a prohibited device. Whether that is true is not the point of this discussion.

The analysis contained in the notice does address Second Amendment concerns. It concludes, however, that the recent Second Amendment jurisprudence, contained in the Supreme Court’s Heller case, and other cases, permits regulation of arms in the hands of individuals, while prohibiting the outright ban of all types of firearms. That is not challenged here.

What is challenged is that the regulation, which the ATF fully admits, would require present owners of bump stocks to either surrender them to authorities for destruction, without compensation, or to destroy them themselves (again without compensation). In other words, the government would be, by administrative fiat, depriving persons of their property. This involves another Amendment contained in our Bill of Rights. The Fifth Amendment provides, among a number of other important rights, that no person shall be deprived of property without due process of law. It is hard to believe that the founders, in enacting that Amendment, contemplated that an unelected, administrative body of bureaucrats, proposing a regulation that would effectively deprive persons of their property, constitutes due process of law. That is what this proposed regulatory amendment would do. It would, upon adoption, convert citizens who possess bump stocks, the overwhelmingly the majority of whom are otherwise law-abiding and peaceful, into felons. That is, unless they relinquish their property, or destroy it.

The great American jurist Oliver Wendell Holmes, Jr., who served on the Massachusetts Supreme Judicial Court for 20 years, and then on the United States Supreme Court for another 30, wrote in one of his books that “the life of the law has not been logic.” Holmes goes on to explain that the “felt necessities of the time” — which obviously may be arbitrary— have more to do with making the rules by which we are governed. Thus, it probably will be possible that a regulation, that in this case, has the effect of taking people’s property away notwithstanding the Fifth Amendment to the Constitution, can be held Constitutional. But the question another Supreme Court Justice, Earl Warren, was known to ask: lawful or not, is it right?

The notice of the regulation made a detailed analysis of the cost of the regulation, including enforcement, and what economists call negative externalities. The ATF, however concludes that the economic impact on individuals who own or who manufacture and sell bump stocks is minimal. Whether that is true or not — the $100 or so that one spent to purchase a bump stock may not be minimal to an overpaid Washington bureaucrat — depriving a private person of any of their property, without due process, is not minimal. If the government can take away a little bit, they sure can take a lot.

This is a Republican/Democrat or left/right issue, but a question of the individual freedom which is the basic raison d’être for the existence of the United States of America. If possession of any lawfully acquired property can be retroactively banned and made felonious, at a minimum it should be accomplished by a majority of our elected representatives in Congress; not by bureaucrats. Even the criminalization of possession of illegal drugs, not to mention machine guns, was made retroactive. Many who believe that public safety requires the banning of bump stocks say Congress is to beholden to the gun lobby — that is, the National Rifle Association (NRA) and its allies — and consequently no meaningful legislation will ever be passed. Even if that is true, so what? If the people speaking through their elected representatives do not want it then it should not happen regardless of the supposed benefit.

I urge everyone, regardless of your political persuasion, to oppose this proposed regulation. This can be done by Internet, fax, or mail, by following the instructions below. If you do, please be logical, civil, and respectful. Vitriol and invective are counterproductive.

You may submit comments, identified by docket number ATF 2017R-22, by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the directions for submitting comments.

• Fax: (202) 648-9741.

• Mail: Vivian Chu, Mailstop 6N-518, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Ave. NE, Washington DC 20226. ATTN: 2017R-22.

Instructions: All submissions received must include the agency name and docket number for this notice of proposed rulemaking. All properly completed comments received will be posted without change to the Federal eRulemaking portal, http://www.regulations.gov, including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Participation” section of the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Vivian Chu, Office of Regulatory Affairs, Enforcement Programs Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, U.S. Department of Justice, 99 New York Ave. NE, Washington DC 20226; telephone: (202) 648-7070.

For a complete text of the Notice in the Federal Register, you may search online: Bump-Stock-Type Devices, 83 FR 13442-01.

The Good, Bad, & Ugly

The Good, the Bad, and the Ugly released some 50 years ago is one of the best Western movies ever made. It was the finale of a trilogy directed by Italy’s Sergio Leone, hence the appellation “Spaghetti Western.” These films, one can safely say, made Clint Eastwood’s subsequent career.

This essay is not a movie review or even a dissection of the plot, characters, or supposed “message” of the director or screen writers. For this writing, the title is intriguing.

Goodness, evil, and ugliness, have existed in all civilizations and cultures, and at all eras. The proportion of the elements of this trioka, however, have varied, sometimes within civilizations and at different places and times. Even Thomas Hobbes’s state of nature, where life was poor, solitary, nasty, brutish, and short, had beauty, and at least some savages were noble.

More to the point, the 18th Century Enlightenment that followed the pessimism of Hobbes, and whose principles the United States of America was founded upon, though overwhelmingly good, had its bad and ugly moments. It put into practice the notion that all individuals are created equal; that is, no one is born into a class or status, and that they have unalienable rights. It also produced the French Revolution’s Reign of Terror. The 18th Century was the time of the first industrial revolution, economic development, and scientific achievement. It was also a century of war, punctuated by brief period of peace. Charles Dickens summed it up: the best of times and the worst of times.

Today many from various positions on the political spectrum are lamenting the state of American society. There are certainly many problems to be concerned with, as there always have been. Most of these are not amenable to overnight solutions or actions using the coercive power of government. They are rather imbued within the culture as it has evolved.

The recent murders of seventeen high school students and teachers in Florida has brought about the usual hand wringing and pontificating. The principal issues touted by the media were mental illness and gun control (or lack thereof). Wall Street Journal columnist Peggy Noonan takes a broader view.

A way to look at the question is: What has happened the past 40 years or so to produce a society so ill at ease with itself, so prone to violence?

We know. We all say it privately, but it’s so obvious it’s hardly worth saying. We have been swept by social, technological and cultural revolution. The family blew up—divorce, unwed childbearing. Fatherless sons. Fatherless daughters, too. Poor children with no one to love them. The internet flourished. Porn proliferated. Drugs, legal and illegal. Violent videogames, in which nameless people are eliminated and spattered all over the screen. (The Columbine shooters loved and might have been addicted to “Doom.”) The abortion regime settled in, with its fierce, endless yet somehow casual talk about the right to end a life. An increasingly violent entertainment culture—low, hypersexualized, full of anomie and weirdness, allergic to meaning and depth. The old longing for integration gave way to a culture of accusation—you are a supremacist, a misogynist, you are guilty of privilege and defined by your color and class, we don’t let your sort speak here.

So much change, so much of it un-gentle. Throughout, was anyone looking to children and what they need? That wasn’t really a salient aim or feature of all the revolutions, was it? The adults were seeing to what they believed were their rights. Kids were a side thought.

There is nothing new here. Profound change is often violent. Consider that, in less that 200 years, we have come from where it was necessary for persons to be physically present to contemporaneously communicate with one another, to where we can instantly communicate with anyone anywhere. Passions abate with time. The wonder in this country in the past five decades or so, is why there hasn’t been more violence than there was and is.

Part of the reason may be because the American founders were looking out for their children. “For us and our posterity” is a continuing theme throughout the writings of the founders, even those who had no children of their own. The ideals of the Declaration of Independence and the measured and limited structure of government established by the Constitution have provided Americans with the freedom to innovate and improve life in ways not dreamed of. Though there have been false starts, hiccups, and altercations, the nation has made it through every crisis and emerged stronger. There is no reason it cannot do it again.

Today, March 24, many are participating in marches, rallies, and demonstrations calling for more firearms restrictions in the wake of the Florida school murders. That is their right and it is an example of the rights ensconced in the First Amendment to peaceably assemble and petition the government for redress of grievances, even though they have it wrong. As the title character in the classic film Shane put it: “A gun is a tool, Marian, no better or no worse than any other tool: an axe, a shovel or anything. A gun is as good or as bad as the man using it.” Last month a bad man shot and killed many high school students while a presumably good man with a gun did nothing. Last week, a good man with a gun, in a similar situation, killed the bad man before the bad could kill more than one. Between the two incidents, scores if not hundreds were killed using many different tools: from guns to knives to axes to automobiles. It’s not the tool; it’s the person.

So what do we do? Nothing? As uncomfortable as it sounds, probably so— at least at a collective level. In Shane, the character Marian’s retort was “We’d all be much better off if there wasn’t a single gun left in this valley… .” Perhaps so, if there were not predators already in the valley, or there was a way to keep them out. For the valley that is our nation, or for that matter, the globe, it’s impossible. On the other hand, individually we can teach our children, our posterity, pay attention to their curiosity and fears. Give them a moral compass, whether through faith, reason, tradition or some combination of these. Returning to where this essay began, as another of Clint Eastwood’s characters aptly observed, we have got to know our limitations.

//

Privies and Paroxysms

President Trump’s recent alleged statements about immigration from “[outdoor latrine] countries” caused quite a few paroxysms among his opponents, and dismay among some of his supporters.

Even telling like it is has limits. If there is such a country, however, Haiti certainly fits the description. that is not to say the people there are no count good-for-nothing. They have suffered under one corrupt dictator after another who have kept that nation in a shambles as a vehicle for their personal profit.

As far as the alleged comment about immigration from Norway, that sounds like a rhetorical question. People usually do not emigrate for countries with stable governments, rule of law, personal freedom, and the resulting prosperity. Norway certainly fits that description.

Why are some countries so different? Historians, anthropologists, sociologists, and related professionals have been trying to answer that question for a long time. And I won’t try to here, other than to note that Professors Ian Morris and Jared Diamond, in unrelated recent works, have some interesting ideas that may be on to something.

People emigrate for economic, political, religious, and other reasons, one of them is being on the lam. Many Americans hold some nostalgic affection for places whence their ancestors came (even if they’ve never been there). Most are probably glad those immigrants left. In the 1880s and 1890s, Russia probably qualified as an outhouse if one were Jewish. Millions of Jews got the hell out of Russia and came to America. They weren’t tired and poor wretched refuse, they were just tired of being poor, and didn’t want to be murdered by the periodic pogroms that occurred there. The later experience of the Soviet Union certainly made many of those emigrants’ descendants glad they did. Likewise, economists Walter Williams and Thomas Sowell both have acknowledged that they are better off that their ancestors were brought to America from Africa, even as slaves.

Donald Trump can be rude, crude, and often uses bad grammar (as anyone who tweets does). What he says often offends some leaders (often self-appointed) of various interest groups, but he is not a racist. No one has said he negatively characterized those who want to come here, but just the countries, many of which doubtless qualify for his epithet. The larger question is how many immigrants from those places can we absorb here?

See today’s column by Mary Anastasia O’Grady, who specializes in writing about Latin American issues. At https://www.wsj.com/articles/the-truth-in-trumps-vulgarity-1517175367

References: Ian Morris, Why the West Rules, For Now; Jared Diamond, Guns, Germs, and Steel.

Also, a while back, I thought I would try to improve on Emma Lazarus’ “The New Colossus” verse on the Statue of Liberty, and invited my brother Steve to give it a shot. I invite others to do so.

Lazarus version:

“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

My version:

“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “I welcome your stalwart, intrepid,
Tired of being poor and yearning to breathe free,
Scorned by kings for wanting more.
Send these, the ill-used and fed-up home to me,
I lift my lamp beside the golden door!”

Steve’s version:

Sentiment, the sweetly stuff of saps,
Requires that tears be shed for victim’d good
Yet nursing those whose souls have given up
Renders Liberty’s message misconstrued.
Charity is not the strength we claim in patrimony.
A torch, a book: no open purse.
Opportunity, no promise of success:

Give me your tired – who rested will bring forth
Energy to light my beacon torch.
Give me your poor – who they themselves will make
Rich through enterprise, recorded in my book
Agreed among us all to common good.
Ye huddling masses, give each other strength!
The air is fresh and clear: breathe it for yourself!
Wretched refuse? Prove you are not.
Homeless, build a home
Here, keep what is yours:
Nothing is Caesar’s, Nothing is God’s.
Helpless, stay away.

Two Birthdays

“Treason doth never prosper: what’s the reason?
Why, if it prosper, none dare call it treason.”

If John Harrington’s 17th-century aphorism is valid, the converse may also be correct. When political change — often called treason by those in power — does not prosper, all are free to call it treason.

January 15 is Martin Luther King, Jr.’s birthday. This year it falls on the Monday designated to observe it. Recognizing King’s accomplishments with a holiday is certainly appropriate and I do not mean to diminish its importance or even add another view. There are thousands who will acknowledge him this day, No question that King was a hero.

Little known outside the few states that recognize it, Robert E. Lee’s birthday, January 19 falls on the Friday of that week, and, in some places, it is observed on the same day as King’s. Lee, unlike King, has achieved pariah status in the national media (and with some in the professoriat) only after it was recently discovered— nearly a century and a half after his death —he could be used to advance a wedge issue in our national conversation. Many cities and other places have removed or propose removing statues of Lee and other Confederates, and changed names of streets, schools, and other locations. Here in Dallas, an equestrian statue of Lee was removed from its eponymous park— at great expense to the taxpayers— by a process that would have pleased Orwell’s Big Brother, Chicago’s late mayors Daley (père et fils), or (perhaps risking a modicum of overstatement) Chairman Mao.

One rhetorical device popular among some is denouncing Lee as a traitor. Treason, of course, historically has been regarded as the most odious offense. Dante, for example, opined that traitors were condemned to the lowest circle of hell, where Judas Iscariot and Marcus Brutus suffer for eternity. Treason was punished in Medieval and early modern Europe by the offender being hanged, drawn and quartered or broken on the wheel, if male, or burning at the stake, if female.

What actually constitutes treason has always been problematic. Historically, it was attempting, or even wishing, to kill one’s sovereign, almost always a monarch. At a time when sovereigns were considered God’s lieutenants on earth, such an act would be tantamount to deicide.

The common law put treason into two categories, petit treason, generally adultery (if committed by the wife); and high treason, committed against the monarch, the state. High treason could extend so far as to merely wish ill on the king, or even what we would consider legitimate dissent in this country. Indeed, accusations of treason were used to silence dissenters and reformers well into the modern era.

The Founders who drafted our Constitution were mindful of this abuse, and in Article III limited treason against the United States to “levying war against them, or in adhering to their Enemies, giving them Aid and Comfort.” This clause does not define treason, but limits it to those acts. It leaves out an essential element of treason. As noted in Blackstone’s Commentaries and other authorities, the offender must have allegiance to the offended entity. Treason against any one of the several states is similarly limited by their constitutions and laws.

So, was Robert E. Lee guilty of treason; a traitor?

Neither Lee, nor any other Confederate leader, soldier, or citizen of a secessionist state was ever tried for treason. Jefferson Davis was indicted on that charge, but the case was ultimately dismissed. The Supreme Court has never ruled one way or the other in that case, or any other Civil War case.

But could they have been so charged and convicted under the Constitution and law?

That is unlikely. From the beginning and to this day, Americans, other than resident aliens, are citizens of two sovereigns: the United States and the state in which they reside. Until the 14th amendment was ratified, it was not clear which came first. Was a citizen of the United States thus because he was a citizen of a state, or vice versa?

The first inquiry is whether Robert E Lee levied war against the United States. The Constitution and the enabling statute used the plural form. If the seceding state remained in the union, as President Lincoln maintained, then the Confederate armies only waged war against some of the states. That appears to be one of the reasons Southerners referred to the “War Between the States”rather than the Civil War. It would be absurd to maintain that the Confederates levied war against their seceding states. So the war was against not all, but only the states remaining in, not those attempting to leave the Union.

The seceding states did actually leave the Union, which is what the reconstruction Congress held when it readmitted each of the former Confederate states during Reconstruction. The Confederacy was given the status of a belligerent under international law, although never recognized de jure or de facto. One of the belligerents was attempting to be independent of the other, analogous to War of Independence waged against Great Britain fourscore and several years before.

Regarding the element of allegiance, prior to ratification of the Constitution the several states were wholly sovereign. To be a citizen one had to be the citizen of a particular state. Did the Constitution change that? Until the 14th Amendment was ratified, it does not appear that it did. The Dred Scott case in 1857 held that a slave was not a citizen. While that decision may be morally repugnant by our contemporary standards, it was legally and Constitutionally sound at the time. Congress recognized the decision was so when it proposed the Amendment.

When Robert E. Lee commanded armies constituted under the Confederacy, of which his home state of Virginia was part, he was a citizen of Virginia. If Virginia left the Union he was no longer citizen of the United States. He owed allegiance to Virginia and the Confederacy his state was part of. Thus, Lee could not be a traitor to the United States of which Virginia was no longer a member. Many historians and other commentators have maintained that whether a state could secede was settled in the negative by the Union victory. Even if it was, it was ex post facto and never ensconced in positive law either by an appellate court decision, statute, or Constitutional Amendment. This controversy remains purely metaphysical.

Lee, and the other Confederate leaders were formally acknowledged by Congress to have lost their United States citizenship upon secession, and had to apply for its restoration under laws passed during Reconstruction. Lee did so apply, but he died before his application could be acted upon. Lee’s citizenship was finally, posthumously, restored in 1975 by a Congressional Joint Resolution during President Gerald Ford’s administration.

What about Lee’s oath of office as an officer in the United States Army? I recall one of the Yeoman Warders serving as a guide to the Tower of London remarked to me that George Washington was a traitor because he had been an officer in the British Army prior to the Revolutionary War. Lee, like Washington, had resigned his commission prior to taking their commands. Did resignation release him from his oath? This question may not be answerable by any legal authority. Common sense, however, suggests that resignation of an office or other position means one is no longer obligated to perform the duties under that office. Logically Lee was released from that oath.

Robert E Lee did not commit treason. The cause he served as a Confederate leader was, on a number of levels, a flawed one. But he, like many others at the time, both North, South, and West, believed his higher duty was to Virginia and its allied states. He served honorably, and, at the end, he knew that Virginia and the Confederacy had lost and acknowledged that fact. He resisted any exhortation to continue the war as a guerrilla. He became a civilian and spent the last five years of his life seeking reconciliation between the sections. Lee’s final words to his soldiers at the end of the war were “furl the flag, boys.”

Over the next 100 years, many did not, but we can take comfort that most by now have done so. For that, we can credit, among others, Martin Luther King, Jr.

Sources and Authorities:

Case of Davis, 7 F. Cas. 63, No. 3621A (Circuit Court D. Va. 1867)

Cramer v. U.S., 325 U.S. 1 (1945)

U.S. v. Cathcart, 25 F. Cas. 344, (Circuit Court D. Ohio) (1864)

Cynthia Nicolett, “Did Secession Really Die at Appomattox?: the Strange

Case of U.S. v. Jefferson Davis,” 41 University of Toledo Law Review 587 (2010)

Ian Mitchell, “The Trial of Jefferson Davis and the Treason Controversy,” 39 Northern Kentucky Law Review 757 (2012)

Willard Hurst, “Treason in the United States,” 58 Harvard Law Review 806 (1945)

IV Blackstone’s Commentaries, Ch.6

18 U.S. C. § 2381

Jay Winik, April 1865, (Harper Collins 2001)

 

 

Happy Holidays? Nah!

Beginning with Thanksgiving this year, there has been a plethora of parties and parades in anticipation of Christmas. Many, if not most, of them have been officially designated by the rather sterile “holiday” appellation. Nevertheless, it remains the reason for these events is the festivities traditionally surrounding the anticipation and celebration of Christmas Day.

The period beginning with Thanksgiving and extending through New Year’s Day, or for some, Twelfth Night, is often referred to generically as the holiday season. Christmas, its centerpiece, has its origin in the celebration of the birth of Jesus Christ, and thus gave the season its name. During this time, however, there occur the Jewish celebration of Hanukkah, which is not a major feast for Jews; and Kwanzaa, which is a recent innovation, ostensibly a sub-Saharan African tradition. Greek, Russian, and other Orthodox Christian denominations actually celebrate Christmas on January 7.

Now I have no trouble with honoring other traditions during this period, but the focus and the real reason there are such celebrations is Christmas, the commemoration of the birth of arguably the most influential man in history. The politically correct crowd seems to believe that terming the season and the parties and the parades as “Christmas” excludes and dishonors the other traditions. Erecting Christmas scenes such as the Nativity in public places is feared as endorsement of a particular religion by government. This notion is poppycock.

Christmas began as the celebration of the birth of Jesus Christ sometime in the early Christian era. No one knows for sure the day, or even the time of year when the Nativity actually occurred. Around the winter solstice in December is as good a time as any. Christianity took root primarily in Europe. The Western Hemisphere, Australia, and New Zealand after the 16th century became essentially a greater Europe. The European traditions, including those important to celebration of the Christian religion traveled with the European, primarily British, French, and Spanish settlers. Thus, the dominant culture in those areas included Christian practices and traditions. If it were not of this origin, it is doubtful there would be a “holiday” season as significant as it is.

Christmas has evolved into being as much a secular holiday as a religious one. Gift giving, trees, poinsettas, lights, holly berries, egg nog, and so forth are as much a part of the time as church services, creches, and Advent wreathes. Carols are the great crossover between the religious and secular. The great oratorios of Handel and Bach, as well as their less ambitious pieces, are enjoyed by the devout and irreligious alike.

This past week there was an op-ed in the Dallas Morning News titled “This atheist loves Christmas, so stop the war on my favorite holiday.” In that column, Zachary Moore says “because I love Christmas so much … Squabbling over the public square diminishes my enjoyment of the season.” He goes on to propose that “Christmas [should] henceforth be treated as a secular holiday open to the interpretation and enjoyment of all. Christians are welcome to revel in its theological implications, while atheists and others may pick and choose whatever resonates with their own particular values. The Christmas tree in the square will be a malleable and inclusive symbol, able to support the weight of Magi, Menorah and Muhammad, as well as any other marginalized culture that would appreciate a little bit of fun in the darkness of winter (including we joyless atheists),” his parenthetical being a welcome tongue-in-cheek.

So, like this sensible unbeliever, let us all cut out the nonsense, politically correct or not. Christmas should not be a political or culture-war football, but for all a joyous time of some respite from the slings and arrows of daily life, whatever their religious or political persuasion.

Merry Christmas, Joyeux Noel, Feliz Navidad to all, and to all good tidings.

Luther’s 95 at 500

October 31 has been known on the Christian calendar for centuries as All Hallows’ Eve, contracted to”Hallowe’en” for most of us. “Hallows” is archaic English for saints, all of whom are celebrated on November 1 of each year. The theme of composer Modest Mussorgsky’s “Night on Bald Mountain,” famously animated in Disney’s Fantasia, portrays it as the night when Satan and his minions have a final romp before the saints take over at dawn. (Mussorgsky actually composed the piece for St. John’s Eve, June 21, not All Hallows Eve, but it has become associated with Hallowe’en.)

Legend has it as the day Martin Luther posted his “Disputation on the Power and Efficacy of Indulgences,” known popularly as his” 95 Theses,” on the Wittenberg Castle church door in 1517. The day and the act popularly marks the beginning of the Reformation, the downstream effects of which shaped the modern world.

Not all of the accounts of Luther’s publication of his Disputation are based on precise facts. Posting of debate notices by theology and philosophy scholars was not unusual at the time; it was not an act of defiance when first posted. Debate on the nature of indulgences and other challenges to Catholic Church doctrine had occurred before among theologians – John Wycliffe and William Tindale in England and Jan Hus in Bohemia among them. The 95 Theses were probably not personally nailed to the church door by Luther. More likely, the church sexton pasted them in a prominent place as was the custom. And probably not on Hallowe’en. But, when legend becomes fact, print the legend.

Luther’s posting of his Disputation, whichever day it was, nevertheless is as good as any marker for the beginning of the Reformation. As it turned out, Luther’s role in the movement became crucial, but there are arguments that the Reformation would have occurred anyway.

Historians have posited a number of theories as to the causes of historical change and evolution. Scottish historian Thomas Carlyle opined that history is but the biographies of great men — the Great Man Theory. Russian writer Leo Tolstoy maintained the opposite: popular mass movements transform societies. Both theories have their followers and critics among able minds, which suggests that the best answer is some synthesis.

Western European Christianity at Luther’s time was ripe for reform. The Christian church and secular powers, since the conversion of the Roman Emperor Constantine, through Medieval period, and into the early Modern period, had never been separate. The schism between the Eastern Orthodox and the Western Catholics in the Eleventh Century, though ostensibly precipitated by an arcane theological disagreement, was essentially a political move. The Eastern Patriarchs considered the Pope in Rome to be perhaps the first among equal bishops, but not the absolute the authority. The Western Church believed otherwise – the Pope was the supreme authority as the Vicar of Christ. Kings and sovereigns of other appellations were his and God’s lieutenants. Popes and secular powers, in a symbiotic, occasionally contentious, relationship maintained that authority for the half millennium before Luther.

The principle under which the Church and state maintained absolute power was the promulgation of incontestable dogma that bolstered their authority. The touchstone was the authority of the past; that is, Scripture, as interpreted by the Popes and church councils, and tradition. The ancient writings of Aristotle and that of early and Medieval scholars, particularly Thomas Aquinas, formed a canon of authority that settled all philosophical and theological arguments. Deviation was heresy. Heresy was a capital crime and mortal sin, punishable by being burned alive, the first taste of eternal hellfire.

The methodologies of Aristotle and Aquinas were brilliant, and sound, as far as they went. To this day, their logical forms are used to frame issues and make arguments, and can be persuasive. But many of the observations, particularly those of the physical world, and other sources, which formed the premises of their logic, were flawed, and led to flawed conclusions – the garbage in, garbage out paradigm. Those conclusions, whether they had anything to do with spiritual well-being, nevertheless became doctrine and thus not contestable. The Church, and secular authorities, believed that denying any part of the doctrine or challenging its validity would bring the entire canon into question.

The major source of authority for the Church was scripture. But what did the Bible really say? Before Luther’s time, all copies of the Bible were written in Latin. While Latin was the lingua franca of Europe, few could read it. Indeed, only scholars and some churchmen could read. Common folk and even parish priests generally were illiterate. Many country priests recited the Latin Mass by rote with as much understanding of what they were saying as that of a parrot. Even kings and nobles mostly were illiterate. They relied on the Church officials and scholars to inform them what the Bible taught. Leaders could interpret, or even make up biblical tenets to suit themselves, and probably did.

Martin Luther’s scholarly research convinced him that the ability of the Pope to grant indulgences – the remission of punishment for sin in this world or the next – had no basis in scripture, and was otherwise suspect. The notion that indulgences gave leave to one to commit future sin seemed outrageous, although that was not the Church’s official position. This issue was precipitated by the efforts of one Johann Tetzel, a Dominican monk enlisted by Albrecht, Archbishop of Mainz to raise money to defray the cost of a donation he made for his appointment by the Pope Leo X. At the time, the Pope was in the process of rebuilding Saint Peter’s Basilica in Rome in a high Renaissance, that is to say expensive, style, and needed money. Tetzel claimed authority to grant indulgences on behalf of the Church to donors in proportion to their donation ostensibly for that purpose. Evidently he was a charismatic speaker and a persuasive salesman. Disturbed by Tetzel’s Barnumesque sales tactics, and the idea that an indulgence could be sold for money, Luther posted his invitation to debate Tetzel on multiple issues concerning indulgences. Such an invitation to a disputation in prior times would probably been purely local, and news of it would have been confined to a few scholars who would have received handwritten copies.

Until the second half of the 15th Century, books and multiple copies of any writings were rare. The was no way to make copies except than by hand writing. Books like the Bible were mostly copied by monks in monasteries. Few churches actually had Bibles, and those that did kept them under lock and key, often chained to a lectern. The printing press using moveable type invented by Johann Gutenberg in the middle of the 15th Century had the potential to change all that, and ultimately did.

By 1517, the printing press had been in use for around 60 years. Luther’s 95 Theses were printed and disseminated throughout Germany and even reached Rome. A number of the issues raised by Luther were read as challenging the authority of the Pope and Church. The effect was to create distress in the academic community and led the Catholic hierarchy to fear a challenge to Papal authority. One thing led to another and the Reformation, a wholesale schism among Christians, occurred.

Regardless of one’s religious beliefs and allegiance, or lack thereof, today, Luther’s act and the corollaries to it should be recognized as the elevation of the individual’s freedom of conscience, which meant free inquiry into ideas, and the ensuing Enlightenment and scientific revolution. Its immediate effect was a political upheaval and bloody conflict throughout Western Europe for the following two centuries — entrenched establishments do not go gently. But Luther and his subsequent refusal to recant his beliefs set in motion the progression to the present day world, where unskilled laborers and even homeless persons have an exponentially better life in this world than Medieval kings did in the world into which Martin Luther was born.

More to come.

Sources: Barbara W. Tuchman, The March of Folly, (1984)

Eric Metaxas, Martin Luther (2017)

Donald Wilcox, In Search of God and Self, (1985)

See also:

Josep P. Orta, “Luther’s Legacy” National Geographic History, (Sept.- Oct. 2017)

Joseph Loconte, “How Martin Luther Advanced Freedom” Wall Street Journal (Oct. 27, 2017, p. A13)

“When the legend becomes fact, print the ledged.” – from The Man Who Shot Liberty Valance, John Ford film (1962)

Saint Crispin’s Day — Lasting Inspriation

William Shakespeare’s version of King Henry V’s speech at Agincourt on the eve of St. Crispin’s Day, October 25, 1415, is worth repeating. Though fictional, it has been recognized as one of the most stirring calls to action and resolution in history.

Shakespeare wrote most of his drama during the latter half of Queen Elizabeth’s reign. Henry V was written around 1598. In 1588, King Felipe II of Spain sent his Armada, a huge fleet of 130 ships carrying then state of the art naval artillery and thousands of troops, to invade England and depose Elizabeth. The Queen went in person to her soldiers, assembled at Tilbury near the Thames estuary, to declare her solidarity with them. Part of her address to the troops was:  “Let tyrants fear, I have always so behaved myself, that under God I have placed my chiefest strength and safeguard in the loyal hearts and goodwill of my subjects; and, therefore, I am come amongst you as you see at this time, not for my recreation and disport, but being resolved, in the midst and heat of battle, to live or die amongst you all – to lay down for my God, and for my kingdoms, and for my people, my honour and my blood even in the dust. I know I have the body of a weak and feeble woman; but I have the heart and stomach of a king – and of a King of England too, and think foul scorn that Parma or Spain, or any prince of Europe, should dare to invade the borders of my realm; to which, rather than any dishonour should grow by me, I myself will take up arms – I myself will be your general, judge, and rewarder of every one of your virtues in the field.”

Compare with Henry’s speech:

That he which hath no stomach to this fight,
Let him depart; his passport shall be made,
And crowns for convoy put into his purse;
We would not die in that man’s company
That fears his fellowship to die with us.
This day is call’d the feast of Crispian.
He that outlives this day, and comes safe home,
Will stand a tip-toe when this day is nam’d,
And rouse him at the name of Crispian.
He that shall see this day, and live old age,
Will yearly on the vigil feast his neighbours,
And say “To-morrow is Saint Crispian.”
Then will he strip his sleeve and show his scars,
And say “These wounds I had on Crispin’s day.”
Old men forget; yet all shall be forgot,
But he’ll remember, with advantages,
What feats he did that day. Then shall our names,
Familiar in his mouth as household words—
Harry the King, Bedford and Exeter,
Warwick and Talbot, Salisbury and Gloucester—
Be in their flowing cups freshly rememb’red.
This story shall the good man teach his son;
And Crispin Crispian shall ne’er go by,
From this day to the ending of the world,
But we in it shall be rememberèd-
We few, we happy few, we band of brothers;
For he to-day that sheds his blood with me
Shall be my brother; be he ne’er so vile,
This day shall gentle his condition;
And gentlemen in England now a-bed
Shall think themselves accurs’d they were not here,
And hold their manhoods cheap whiles any speaks
That fought with us upon Saint Crispin’s day.

This speech marks a turning point in the play. Henry has completed the transformation from Prince Hal, an adolescent drinking buddy of the dissolute Falstaff, into a true king. “I am not the thing I was” he proclaimed, banishing Falstaff from his presence. That their king is willing to fight and possibly die alongside his men inspires them to wind the battle. The speech and the image of Henry delivering it have become a lasting symbol of leadership and resolve.

The words of this speech have continued to be used to inspire heroism and patriotism. The chorus of the song “Hail Columbia” was written for the inauguration of President George Washington following the American Revolutionary War: Firm, united let us be, / Rallying round our liberty, / As a band of brothers joined, / Peace and safety we shall find. Later, the phrase “band of brothers” was used in a popular Civil War song, “The Bonnie Blue Flag,” and even during the Napoleonic Wars, British hero Admiral Lord Nelson is quoted as saying, “I had the happiness to command a band of brothers.”

Winston Churchill is reputed to have asked British filmmakers to produce a movie version of Henry V to encourage the British public during World War II.

Anyway, let us strive to outlive this day and come safe home.

Sources: https://web.archive.org/web/20131203133234/http://www.folger.edu/template.cfm?cid=4373

Damrosh, David, et al. The Longman Anthology of British Literature, Volume 1B: The Early Modern Period. Third ed. New York: Pearson Longman, 2006