The Long View: 2008-06-16 The Irony of Victory; The Two Swords; Habeas Corpus


John J. Reilly mentions Pope St. Gelasius I here in reference to the Two Swords of Luke 22:38. This is a minor and somewhat obscure reference in the Gospels, and is accordingly a somewhat minor element of John’s political philosophy:

No doubt the doctrine in question is not worth much, but one wonders how a poet could dismiss such an important metaphor. The analogy of the two swords runs right through Western history. When US senators debate whether public funds should be available to faith-based organizations, that is still the pope and the emperor arguing about who has the authority to invest the bishops of Germany. Unlike in other civilizations, church and state in the West are always distinguished, even in those periods when they closely supported each other. Even when the ecclesiastical power seems to have wholly lapsed, it is natural for academics and artists to claim the privileges and influence traditionally granted to priests.

However, I do think it is an important enough element to pay attention to:

More important, though, is the fact that government, in American political culture, is a divine institution (or, if you prefer, an institution with a transcendent basis), which is by no means the same as saying it is implicitly theocratic. The author uncritically accepts the urban legend that the early modern Social Contract theorists invented the separation of church and state. The language of the Declaration of Independence about the relationship of the transcendent to the political is not quite what Hobbes says, but it is very near to what Aquinas says about the autonomy of the political. As the principle of the Two Swords, this distinction between religion and politics is one of the insistences of Western civilization.

The Irony of Victory; The Two Swords; Habeas Corpus

Fans of the old Art Rock band Genesis may recall these lines from Supper’s Ready:

The order
for rejoicing
and dancing
has come from our warlord

In rather the same spirit, perhaps, the Times of London yesterday favored us with this headline: Get Osama Bin Laden before I leave office, orders George W Bush:

A Pentagon source said US forces were rolling up Al-Qaeda’s network in Pakistan in the hope of pushing Bin Laden towards the Afghan border, where the US military and bombers with guided missiles were lying in wait. “They are prepping for a major battle,” he said.

The main operations in Pakistan are being undertaken by Delta, the US army special operations unit, and the British SBS.

This information occasions several reflections, one of which is that I am glad my nephew did not get into special forces. From a broader perspective, however, there is this:

Suppose this operation succeeds, and the campaigns in both south-central Asia and Iraq come to a satisfactory conclusions before the November elections. Doesn’t that pretty much eliminate the best argument that John McCain can make for voting for him?

* * *

Meanwhile, over at Asia Times, That Spengler is doing the Dance of the Two Swords:

Never before did a pope descend to the Vatican gardens to greet a national leader as Benedict did for Bush, returning the unprecedented deference that the president showed in meeting the pope's plane at Andrews Air Force Base in April. More than mutual courtesy is at work here; the two men evince a natural affinity and mutual sympathy... Despite his position on Iraq, Benedict's critics within the church regard him as a civilizational warrior as dangerous as the US president... Islam is in danger for the first time since its founding. The evangelical Christianity to which George W Bush adheres and the emerging Asian church are competitors with whom it never had to reckon in the past.

The column is usefully provocative for several reasons, not least of which is the suggestion that the Muslim populations now in Europe may be important in the long run as springboards for the evangelization of their homelands. Spengler sounds hopeful.

* * *

Lest in the waning days of the Bush Administration we think too highly of its competence, let us not forget Boumediene v. Bush, the decision the Supreme Court handed down last week in which the Court found that the prisoners at Guantanamo have habeas corpus rights.

It’s not a ridiculous opinion, or a ridiculous result. In its analysis of the history of the writ of habeas corpus, for instance, the Court had to consider whether Guantanamo in the 21st century was more like India in the 18th, where the writ ran, or more like Hanover, where it didn’t. Such an exercise must warm the heart of every history buff. More practically, the Court did not neglect to preserve and extend its own prerogative. I quote here the Syllabus, the Court’s own summary of its opinion:

Although the United States has maintained complete and uninterrupted control of Guantanamo for over 100 years, the Government’s view is that the Constitution has no effect there, at least as to noncitizens, because the United States disclaimed formal sovereignty in its 1903 lease with Cuba. The Nation’s basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, govern, and dispose of territory, not to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say “what the law is.”

The Court’s obsession with maintaining the widest possible theory of judicial review will, of course, eventually be the cause of the Court’s downfall. In this case, though, the Court cannot be accused of overreaching. The ridiculous thing about the opinion is that the Administration forced the Court to issue it. There was very little precedent for the Court’s decision. That was so because prior administrations had had the sense not to structure their treatment of foreign prisoners in a way that would require the Court to define the powers of the Commander-in-Chief.

I can only repeat: there are some things about the Constitution that mankind was not meant to know. The mark of folly in an Administration is asking the Supreme Court what they are.

Copyright © 2008 by John J. Reilly

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