The Supreme Court Rejects the Independent State Legislature Theory of John Eastman and the Claremont Institute

In October, I wrote about the Independent State Legislature Theory that was part of the plot devised by John Eastman and the Claremont Institute to overturn the Constitution for Trump.  Yesterday, the Supreme Court issued its decision in Moore v. Harper rejecting that theory, in a 6 to 3 decision, with the majority of 6 composed of 3 liberals (Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson) and 3 conservatives (John Roberts, Brett Kavanaugh, and Amy Coney Barrett). Roberts wrote the majority opinion.  The one justice who is most under the influence of the Claremont Institute--Clarence Thomas--wrote the dissenting opinion, with the concurrence of Neil Gorsuch and the partial concurrence of Samuel Alito.  The New York Times has a good article on this case.  

This is one of the most important decisions the Court has ever made, because it denies Trump Republicans the opportunity to have state legislatures overturn federal elections, such as the presidential elections in 2020 and 2024.

This also shows that three of the six conservative Republican justices on the Supreme Court are willing to uphold the Constitution against the attacks of the Trump Republicans.  Two of those three are even Trump appointees (Kavanaugh and Barrett).    This adds to the long line of cases in which conservative Republican judges have shown impartial judgment in upholding the rule of law against Trump and the Trump Republicans.

Many observers of the Supreme Court had expected that the six Republican justices would vote in favor of the Independent State Legislature Theory.  But in one of his comments on my previous post, Roger Sweeny predicted that "no more than three justices will say anything nice" about that theory.  And, indeed, there were only three dissenters in this case.

The Independent State Legislature Theory (ISL) is based on an unusual interpretation of two clauses in the Constitution.  Article I, Section 4, clause 1 reads: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."  Article II, Section 1, clause 2 reads: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress."  

Proponents of ISL say that these provisions give the "Legislature" of each State absolute power over Federal elections to Congress and the Presidency, a power that is so absolute that it cannot be limited by anything in state law or even in the state constitution.  Consequently, Republican-controlled state legislatures in 2020 had the power to overturn Biden's popular vote win in their States by appointing Trump electors to the Electoral College.

Another consequence of the ISL is that a state legislature has absolute power to engage in partisan gerrymandering in redistricting its congressional districts free from any limits by state constitutional law.  So, for example, in North Carolina, the Republican-controlled legislature drafted new congressional district maps in 2021 that gave an advantage to the Republican Party in ten seats and to the Democrats in four, even though the electorate tends to be evenly divided between Republicans and Democrats.  Multiple lawsuits were filed against the Republican leaders of the North Carolina legislature claiming that the maps were so partisan gerrymandered as to violate the state constitution.  In Harper v. Hall, the North Carolina Supreme Court held that the maps were indeed unconstitutional.  A special master team of outside experts was assigned to create a new map, which was accepted by a state court.  With this new map, the election in 2022 resulted in a 14-member congressional delegation evenly divided between Republicans and Democrats.

The Republican leaders of the legislature appealed the case to the U.S. Supreme Court, arguing that under the ISL theory, the North Carolina legislature has absolute power over congressional districting that cannot be constrained by the state constitution.  In Moore v. Harper, the Court has now rejected this argument.

This case became complicated when Republican judges took control of the North Carolina Supreme Court in the 2022 elections.  After the elections, Republicans controlled the Court by a 5-to-2 margin.  The North Carolina Republican legislators saw this as giving them a chance to overturn the decision in Harper v. Hall.  But according to North Carolina law, a petition for rehearing must be brought within 15 days of a court's judgment, and that time had long since passed.  To get around this, the Republican legislators argued that while they could not ask the Court to overturn the judgment in the Harper case, they could ask the Court to overturn the reasoning in the Harper case.  They said that the new Republican-controlled Court could rule that the previous Court was wrong in saying that partisan gerrymandering claims were justiciable under the State's Constitution, but this would not negate the force of the Court's order in Harper striking down the 2021 gerrymandered maps.  But then once they got this decision from the North Carolina Supreme Court, they were confident that the conservative majority on the U.S. Supreme Court would later overturn the original Harper judgment, which would restore the 2021 gerrymandered map.

With the new decision from the North Carolina Supreme Court apparently overruling Harper, it appeared that the case before the U.S. Supreme Court was moot, and if so, the U.S. Supreme Court would not have jurisdiction over this case.  But then the North Carolina Republican legislators argued that this was not moot, because they were still asking the Supreme Court to overturn the judgment in the Harper case, which would restore the gerrymandered map and affirm the ISL Theory.  

They persuaded the majority of the Court to accept this--that the Court did have jurisdiction over this case.  But now we can see that the Republican legislators committed a blunder, because those three conservative justices in the majority failed to accept the ISL Theory.  

When it became clear that three conservative justices were leaning towards rejecting the ISL Theory, Thomas, Gorsuch, and Alito argued that the case in Moore v. Harper was moot, and therefore the Court should have refused to render any judgment.  That's the argument of Thomas's dissenting opinion.

This is a stunning defeat for Eastman/Claremont conservative Republicans who were foolishly confident that the conservative majority on the Supreme Court would affirm the ISL Theory.

Patrick Deneen Is a Liberal. Really.

A few years ago, I wrote a long series of posts on Patrick Deneen's Why Liberalism Failed (2018).  Now, I am thinking about his new book--Regime Change: Toward a Postliberal Future--that has just been published.

I have been reading Deneen's writings for many years.  For most of that time, I have been bothered by the feeling that I was missing something.  Only recently, I figured out what I have been missing.  

Dineen is not what he pretends to be.  As indicated by his new book, he claims to be an enemy of liberalism, who is proposing a radical "regime change" that would overthrow the liberal regime and replace it with an illiberal regime.  But if you read him carefully, you will see that while he enjoys posing as an opponent of liberalism, he is being dishonest, because he is actually a liberal.

This explains why he fails to make good arguments against liberalism and for a truly illiberal alternative to liberalism.  His arguments are weak because his heart is not in it.

If you read him carefully, you will see that there are many points in his book where the reader would expect him to defend some radically illiberal practices and principles that would destroy the liberal social order, but then he refuses to do that.  The only explanation for this is that his profession of belief in illiberalism is insincere, because he is a secret liberal.

For example, consider what Dineen says about the legal enforcement of religious belief and practice, which is crucial for any illiberal regime that must reject the liberal principles of religious liberty and toleration.  I will point to three illustrations--his account of Thomas Aquinas's "common-good conservatism," his defense of John Winthrop's Puritan governance in the Massachusetts Bay Colony, and what he says about the Lockean liberalism of the U. S. Constitution as it bears on the legal status of religion.

THOMAS AQUINAS ON THE LEGAL ENFORCEMENT OF CHRISTIAN ORTHODOXY

Deneen repeatedly identifies Thomas Aquinas as one of the major proponents of the "common-good conservatism" that Dineen professes to be the best illiberal alternative to liberalism (x, xiii, xv, 46, 48, 96, 125, 131-33, 165).  Any reader who knows something about what Aquinas recommended for the legal enforcement of Christianity would expect Dineen to endorse this as important for his illiberal conservatism.  Remarkably, however, far from endorsing this teaching, Dineen passes over it in silence.

For example, to the question of "Should heretics be tolerated?" Aquinas's answer was no (ST, II-II, q. 11, a. 3).  He explained: heretics "by their sins indeed deserved to be both separated from the church by excommunication and excluded from the world by death.  For it is a more serious crime to corrupt the faith, which gives life to the soul, than to counterfeit money, which supports earthly life.  And so if secular rulers justly put counterfeiters and other felons immediately to death, much more could heretics be both excommunicated and justly killed immediately upon conviction of heresy."  

Thus, Aquinas supported the Inquisition in its mission of investigating and killing heretics.  In 1233, Pope Gregory IX had given the Dominicans the supreme authority over the Inquisition.  Aquinas was himself a Dominican.

This is part of the illiberal conservatism of people like Joseph de Maistre (1753-1821), who argued that all stable government requires belief in its absolute divine authority as enforced by the persecution of heretics who deny Christian orthodoxy.  De Maistre defended the violent persecution of heretics by the Spanish Inquisition as necessary to protect Spain from the heresy of Protestantism.

Now, this is a truly illiberal alternative to the liberal doctrines of religious liberty and toleration.  But Dineen says nothing about this.  He says nothing about Aquinas's justification for killing heretics, and he does not even mention de Maistre, who was the true founder of illiberal conservatism.

Today, the most prominent proponents of illiberal Thomistic political thought are the Catholic Integralists, who see Aquinas as expressing the social order of the medieval Christian Kingdom--particularly, the "Most Christian Kingdom" of St. Louis IX in France--in which there was no separation of Church and State, but an integrated fusion of secular and sacred order (Jones 2017).  Remarkably, Dineen says nothing about whether he agrees with the Integralists, although he does defend "postliberal integration" against "liberal separation" (187-237).

As far as I can see, the only good explanation for Dineen's evasiveness is that he cannot bring himself to openly endorse such radically illiberal principles as the fusion of Church and State because he is really a liberal, who believes in religious liberty and toleration.

THE AMERICAN PURITAN FOUNDING:  JOHN WINTHROP VERSUS ROGER WILLIAMS

John Winthrop was an English Puritan lawyer and one of the leading founders of the Massachusetts Bay Colony in 1630.  Deneen points to Winthrop and particularly his "Model of Christian Charity" sermon on the need for the Puritans to be "one body" in their organic wholeness as a community.   Deneen presents this as an expression of that common-good conservatism of the American Puritans that constituted the other American Founding--the illiberal Christian founding--that provides an alternative to the Lockean liberal Founding expressed in the Declaration of Independence and the Constitution of 1787 (193-198).

Dineen's readers might then expect that he would explain and defend the illiberal legal principles for enforcing Christian orthodoxy that prevailed in the Massachusetts Bay Colony.  His readers might also expect that he would defend the illiberal Puritanism of Winthrop and others against the criticisms of liberal Puritans led by Roger Williams.  But, again, Dineen is silent about all of this.  He says nothing about the illiberal jurisprudence of the Massachusetts Bay Colony.  And he does not even mention Roger Williams.

The "Laws and Liberties of Massachusetts" (1647) is a codification of laws for Massachusetts that functioned as a constitution for the colony.  Much of it comes from the theocratic regime of the Mosaic laws in the Old Testament (particularly, the books of Exodus, Leviticus, and Deuteronomy).  For example, the section on capital crimes includes the following (Lutz [ed.] 1998, 102):

"If any man after legal conviction shall HAVE OR WORSHIP any other God, but the LORD GOD: he shall be put to death.  Exod. 22. 20.  Deut. 13.6, 10.  Deut. 17. 2. 6."

"2. If any man or woman be a WITCH, that is, hath or consulteth with a familiar spirit, they shall be put to death.  Exod. 22. 18.  Levit. 20. 27.  Deut. 18.10. 11."

"3. If any person within this Jurisdiction whether Christian or Paan shall willingly and willingly presume to BLASPHEME the holy Name of God, Father, Son or Holy-Ghost, with direct, expresse, presumptuous, or highhanded blasphemy, either by wilfull or obstinate denying the true god, or his Creation, or Governments of the world: or shall curse God in like manner, or reproach the holy religion of god as if it were but a politick device to keep ignorant men in awe; or shal utter any other kinde of Blasphemy of the like nature and degree they shall be put to death.  Levit. 24.15.16.

. . .

"8. If any man LYETH WITH MAN-KINDE as he lieth with a woman, both of them have committed abomination, they both shal surely be put to death: unles the one partie were forced (or be under fourteen years of age in which case he shall be seveerly punished) Levit. 20. 13."

"9. If any person commit ADULTERIE with a married or espoused wife; the Adulterer and Adulteresse shall surely be put to death.  Lev. 20. 19. and 18. 20. Deu. 22. 23. 27."

Capital punishment for adulterers, homosexuals, witches, blasphemers, and those who refuse to worship God in the right way.  Kill them all.  Christians killing Christians for worshiping Christ in the wrong way. That's what a truly illiberal legal system looks like.  

So, when Dineen praises the Massachusetts Bay Colony as a model for the illiberal Puritan regime in America, his readers would expect him to praise these laws of Massachusetts and recommend them for his new illiberal regime for America.  Surprisingly, he is totally silent about them.  And his readers must wonder what his silence means.

His readers must also wonder why he is silent about the debate between John Winthrop and Roger Williams over the Mosaic theocracy that was established in Massachusetts.

A few months after Winthrop planted the Massachusetts Bay Colony in 1630, Williams, a Puritan clergyman, brought his family from England to the colony.  He was welcomed by Winthrop as a "godly minister."  Williams and Winthrop largely agreed in their Calvinist theology.  But while Winthrop and the other leaders of the colony believed that the government must be an Old Testament theocracy that coercively enforces the true Christian religion by punishing pagans, apostates, heretics, and atheists, Williams believed that the New Testament taught that there must be a separation of church and state that protects "soul liberty"--the freedom of conscience that is the right of all individuals.  Williams was the first person to use the term "wall of separation."  And while Winthrop and the others believed that the authority of the Massachusetts government was ordained by God, Williams believed that earthly government was based on the free consent of the people without any divine authority.  Government was to serve "civil interests" rather than "spiritual interests."  This showed the split between the illiberal Puritanism of Winthrop and the liberal Puritanism of Williams (Barry 2012).

Previously, I have written about why I think Williams was right in showing the Biblical basis for liberal Christianity, particularly as rooted in the New Testament in opposition to the Mosaic theocracy of the Old Testament.

In 1635, Williams was banished from the Massachusetts Bay Colony.  He fled south to Narragansett Bay, where he bought some land from the Narragansett Indians and established a settlement that he called Providence, which later became the colony and state of Rhode Island.

In 1637, Williams and a dozen or so families drafted a political compact for Providence that they all signed.  They agreed that each of the men would have an equal vote in its governance.  Remarkably, there was no mention of God--unlike all the other founding documents of every other English settlement--and the new government was said to serve the "public good . . . only in civil things" (Lutz, 162).  So this was the first government in the New World to be based on the separation of Church and State and the "soul liberty" of all individuals.

In 1644, Williams published his masterpiece--The Bloudy Tenent, of Persecution, for cause of Conscience, Discussed, in A Conference betweene Truth and Peace.  This 400-page book was one of the most comprehensive treatises about the freedom of religion ever written, and it became one of the classics of liberal political thought.  It exercised a pervasive influence on later writings defending religious liberty, such as John Locke's Letter on Toleration (1689).

It is surprising, therefore, that in identifying Winthrop as the illiberal Puritan founder of American political thought, Deneen says nothing about Williams and about this founding debate between illiberal and liberal Puritanism.  Deneen's readers must wonder why he did not want to defend the illiberal theocracy of Winthrop against the arguments of Williams for liberal Christianity.

Deneen cannot say anything about this debate between Winthrop and Williams, because if he did, he would have to recognize the contradiction between the liberal voluntarism of the Reformed Protestant covenantal community espoused by Williams and Winthrop's call for organic wholeness.  Central to Puritan theology is the idea of covenants--between God and man and between men in society--that rest on free choice.  As Perry Miller observed (in The New England Mind): "The individual voluntarily promised to obey civil and scriptural laws, for the seventeenth-century Puritans believed that meaningful obedience could only grow out of voluntary consent, never out of coercion."  Thus, Winthrop's attempt to form his followers into one body ran against the voluntarist grain of Puritanism that was expressed by Williams.  Deneen does not want to explicitly take a side in this debate, because if he did, he would have to admit that he is on the side of liberal voluntarism.

"NO RELIGIOUS TEST" IN THE CONSTITUTION

Deneen's readers must also wonder why, in taking the side of the Antifederalists in their criticisms of the Constitution of 1787, Deneen says nothing about those Antifederalists who attacked the "no religious test" clause of the Constitution as a denial of America's identity as a "Christian nation" (Deneen 2023, 95, 123, 168-73).

Article 6, section 3, of the Constitution stipulates that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."  Previously, I have written about the importance of this clause in establishing the liberal principles of religious liberty and toleration for the United States.

Before the adoption of the Constitution, most of the states had a religious test requiring that the officers of government be Protestant Christians, and thus excluding Jews, Catholics, Muslims, and atheists.  In some cases, even dissenting Protestants were excluded.  With the passage of Thomas Jefferson's Statute on Religious Freedom in Virginia in 1786, Virginia became the first state to protect religious liberty.

But then, in the decades after the adoption of the Constitution, all of the states dropped religious tests for office and those other provision of their constitutions that established state churches and punished those outside the established church.

In the Ratification Debates, some of the Antifederalists objected to the "no religious test" clause.  For example, at the North Carolina convention, David Caldwell objected to this as "an invitation for Jews, and Pagans of every kind, to come among us," and he worried that "this might endanger the character of the United States" (Bailyn 1993, 2:908).

If Deneen is rejecting the liberal principles of the Constitution, why doesn't he argue against the "no religious test" clause and argue for illiberal religious tests that would exclude non-Protestants from public office?  Does this suggest that he does not want to openly deny the liberal principle of religious liberty because he is actually a secret liberal who rejects the illiberal theocracy of a politically enforced religion?  Certainly, as a Catholic, Deneen would want to defend religious liberty for Catholics in a predominantly Protestant America.

So Dineen must be a liberal.

SIX FAILING ARGUMENTS

If Dineen really is a liberal, that would explain why his attempts at arguing against liberalism fail.  I see at least six failures.

He fails to provide accurate interpretations of liberal political theory.

He fails to exercise any critical judgment in reading his favorite authors who criticize liberalism.

He fails to consider empirical evidence for liberalism's success.

He fails to provide a coherent argument against liberalism.

He fails to see how the American Founding established a true "mixed regime."

And he fails to provide any attractive illiberal alternative to liberal social order.

I will examine these failures in my future posts.

REFERENCES

Bailyn, Bernard, ed.  1993.  The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification.  2 vols.  New York: Library of America.

Barry, John M.  2012.  Roger Williams and The Creation of the American Soul: Church, State, and the Birth of Liberty.  New York: Viking.

Deneen, Patrick.  2018.  Why Liberalism Failed.  New Haven, CN: Yale University Press.

Deneen, Patrick.  2023.  Regime Change: Toward a Postliberal Future. New York: Sentinel.

Jones, Andrew Willard.  2017.  Before Church and State: A Study of Social Order in the Sacramental Kingdom of St. Louis IX. Steubenville, Ohio: Emmaus Academic.

Lutz, Donald S., ed.  1998.  Colonial Origins of the American Constitution: A Documentary History.  Indianapolis: Liberty Fund.

Williams, Roger.  1963.  The Bloudy Tenent of Persecution.  ln The Complete Writings of Roger Williams, vol. 3 of 7.  New York: Russell and Russell.

Biden Should Pardon Trump

 Yes, as I suggested in my previous post, I really do believe that following the example of Gerald Ford in pardoning Richard Nixon, Joe Biden should pardon Donald Trump for the crimes charged in Jack Smith's indictment.

I was pleased to see an opinion piece this morning in the Washington Post by Marc Thiessen and Danielle Pletka agreeing with me.

Of course, as I indicated, it might appear that Biden pardoning Trump would violate the Lockean rule of law by exempting Trump from the criminal law as it applies to everyone else.  But Locke recognized that sometimes the law must be set aside when the public good demands it.  And in this case, there is a good argument for saying that taking this case to court, with a prolonged trial, is not good for the country, just as was the case for the prospect of trying Nixon for his crimes.

Many Americans believe the prosecution of Trump for the crime of illegally holding classified documents is a purely partisan use of the legal system--a "weaponization" of the Department of Justice--by which Biden and the Democrats attack Trump as the likely Republican nominee to run against Biden in 2024.  If Biden were to pardon Trump, this would deflate that "weaponization" argument, and even Trump's most ardent supporters would be forced to take seriously the devastating evidence in the indictment that Trump really is a criminal.

This would also weaken any public support for a future Republican president "weaponizing" the Department of Justice against the Democrats as retaliation.  In fact, Trump in his first speech after his arraignment threatened to do just this if he is elected in 2024, saying that he would "get Biden" if he is elected again.  And Jeffrey Clark, who Trump had hoped to make his Attorney General, has argued that the Constitution establishes a "unitary executive" that controls the whole executive branch of government, so the U.S. Justice Department is not independent of the President.  Biden pardoning Trump would make this claim much less persuasive than it might be after a trial of Trump by the Department of Justice.

Moreover, as Thiessen and Pletka point out, there is the serious possibility that any trial of Trump could lead to his acquittal if even one juror refuses to convict.  And it that were to happen, Trump and his supporters could say that proves that the prosecution was an unjustified partisan attack, which would promote Trump's campaign for the Republican nomination for President and perhaps even winning a second term.

By contrast, if Biden were to pardon Trump, Trump would lose this rhetorical advantage.  Moreover, Trump would not escape punishment for his crimes.  Just as Nixon was punished by being forced to resign the presidency, Trump would be punished by Jack Smith's report of his investigation showing the evidence against Trump and by Trump's loss of public support for his reelection.

Finally, Biden's pardon would show the same level of statesmanship shown by Ford when he pardoned Nixon in saying that avoiding a deeply divisive criminal trial of a former president served the public good of the country.

Trump's Indictment by Jack Smith Challenges the Lockean Rule of Law

Recently, I was at the Gerald R. Ford Presidential Museum in Grand Rapids.  On display was Ford's Presidential Proclamation 4311, issued on September 8, 1974, granting a full and unconditional pardon to Richard Nixon.  Here's the text as displayed in the Ford Museum:

Richard Nixon became the thirty-seventh President of the United States on January 20, 1969 and was reelected in 1972 for a second term by the electors of forty-nine of the fifty states. His term in office continued until his resignation on August 9, 1974.

Pursuant to resolutions of the House of Representatives, its Committee on the Judiciary conducted an inquiry and investigation on the impeachment of the President extending over more than eight months. The hearings of the Committee and its deliberations, which received wide national publicity over television, radio, and in printed media, resulted in votes adverse to Richard Nixon on recommended Articles of Impeachment.

As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States. Whether or not he shall be so prosecuted depends on findings of the appropriate grand jury and on the discretion of the authorized prosecutor. Should an indictment ensue, the accused shall then be entitled to a fair trial by an impartial jury, as guaranteed to every individual by the Constitution.

It is believed that a trial of Richard Nixon, if it became necessary, could not fairly begin until a year or more has elapsed. In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.

Now, Therefore, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.

In Witness Whereof, I have hereunto set my hand this eighth day of September, in the year of our Lord nineteen hundred and seventy-four, and of the Independence of the United States of America the one hundred and ninety-ninth.

At the time, many people criticized Ford for this.  The unpopularity of this pardon was probably one of the reasons that Ford lost the presidential election in 1976 to Jimmy Carter.  

Some people said that in pardoning Nixon, Ford contradicted what he had said in his Inaugural Address, after Nixon's resignation allowed Vice President Ford to become President.  Ford had declared: "My fellow Americans, our long national nightmare is over.  Our Constitution works.  Our great republic is a government of laws and not of men.  Here, the people rule."  Thus, Ford appealed to a recurrent Lockean theme in American political thought: to protect the liberties of the people from the tyranny of arbitrary, absolute power, governmental activity must conform to the rule of law applied impartially and equally to all people.  As Locke said in the Second Treatise, the laws must "not be varied in particular Cases, but to have one Rule for Rich and Poor, for the Favorite at Court, and the Country Man at Plough" (sec. 142).  

But then didn't Ford violate this principle of equality under the law by pardoning Nixon so that he would not be "liable to possible indictment and trial for offenses against the United States"?  Of course, Ford was right that the Constitution gave him the "Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment" (Article II, Section 2).  Here the Constitution seemed to recognize that the Lockean rule of law had to be set aside in particular cases by the exercise of the Lockean prerogative power "to act according to discretion, for the public good, without the prescription of the Law, and sometimes even against it" (Second Treatise, sec. 160).  In Ford's case, he judged that "the prospects of bringing to trial a former President of the United States" would cause "prolonged and divisive debate," and that avoiding this by exercising the prerogative power in pardoning Nixon was for the public good.

In reading Proclamation 4311, it's good to see Ford's signature at the bottom, because this emphasizes that this pardon is a purely personal judgment of the President.

Following the example of Ford, should President Joe Biden pardon Donald Trump, and thus set aside the recent indictment of Trump by Special Prosecutor Jack Smith?  Should Biden do this because bringing to trial a former President of the United States will cause "prolonged and divisive debate" over the fairness of this trial that will not be for the public good?  The debate today will be even more divisive than it would have been in 1974, because unlike the case with Nixon, many Republicans today are saying that any criminal prosecution of the former President will be a purely partisan act by the Democrats and thus an abuse of power.  Or will it be good for the country to see, for the first time in American history, a former President on trial for federal criminal offenses, because this will vindicate the Lockean principle that no one is above the law?

Special Prosecutor Jack Smith filed his indictment of Trump--United States of America v. Donald J. Trump and Waltine Nauta--on Thursday, July 8, in the United States District Court for the Southern District of Florida.  Trump is charged with 37 counts.  31 counts against Trump are for "willful retention of national defense information" (in violation of the Espionage Act, Title 18, USC, Section 793[e]).  5 counts are against both Trump and his aide Waltine Nauta for "conspiracy to obstruct justice," "withholding a document or record," "corruptly concealing a document or record," "concealing a document in a federal investigation," and a "scheme to conceal."  The last 2 counts are against Trump and Nauta for "false statements and representations."  

In its "General Allegations," the Indictment gives a narrative of how Trump put at risk the national security of the United States by possessing classified documents (classified as either TOP SECRET, SECRET, or CONFIDENTIAL) after he had ceased to be president and thus no longer had legal access to these documents.

After he left the White House, he took many boxes of classified documents to his Mar-a-Largo Club in Palm Beach, Florida.  He stored these boxes in various locations at the Mar-a-Largo Club--on the stage of a ballroom, a bathroom, a shower, an office space, his bedroom, and a storage room.  The Indictment includes photographs of these boxes stacked up in these locations.  In many cases, these boxes were stored within easy reach of the thousands of visitors who milled about the Club.

                  Boxes of Documents at Mar-a-Largo Club Stacked on the Stage of a Ballroom

Trump also transported some of these documents to his Trump National Golf Club in Bedminster, New Jersey.  In July of 2021, Trump had an audio-recorded meeting at the Bedminster Club with four people, none of whom possessed a security clearance, and he showed them a "plan of attack" against some country that had been prepared for him by the Department of Defense.  He told these individuals that "this is secret information."  

Then there was this exchange (16):

TRUMP:  See as president I could have declassified it.

STAFFER:  Yeah.  [Laughter]

TRUMP:  Now I can't, you know, but this is still a secret.

STAFFER:  Yeah.  [Laughter]  Now we have a problem.

TRUMP:  Isn't that interesting?

This is perhaps the most stunning piece of evidence in the indictment.  In public, Trump has said that all the documents he had had been declassified.  But here he admits that his documents were still classified-"this is still a secret."

Beginning in May of 2021, the National Archives and Records Administration began demanding that he turn over his presidential records.  Beginning in the next month, they repeatedly warned Trump that if he did not comply, the matter would be turned over to the Department of Justice.  On January 17, 2022, Trump provided only15 boxes of documents to the National Archives, although it was known that many more boxes were being withheld.  On June 3, in response to a grand jury subpoena demanding the production of all classified documents, Trump's attorney provided to the FBI 38 more classified documents.  During this time, Trump told his lawyers that he didn't want to give up his classified documents and that they should be hidden from the FBI.  Trump told Nauta to move his boxes so that they could not be found.  On June 3, the Trump attorneys signed a certification that all of the classified documents had been given up, which was a false statement.

In July of 2022, the FBI and a grand jury obtained and reviewed surveillance video from the Mar-a-Lago Club showing Nauta moving boxes of documents to hide them.  On August 8, the FBI executed a search warrant authorizing them to search for and seize all documents with classification markings in Mar-a-Largo.  They found 102 classified documents.  17 were marked TOP SECRET.  54 were SECRET.  And 31 were CONFIDENTIAL. 

The Indictment quotes from the series of Executive Orders that establish the criteria for classified information.  Information is to be classified as TOP SECRET "if the unauthorized disclosure of that information reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority was able to identify or describe" (5).  

The Indictment provides a sample list of 31 documents marked TOP SECRET or SECRET with descriptions of the documents that include "concerning military capabilities of a foreign country," "concerning nuclear capabilities of a foreign country," and "concerning nuclear weaponry of the United States" (28-33).

The Indictment also quotes from Trump's public statements about the importance of protecting classified information from illegal release.  On August 18, 2016, during his first presidential campaign, Trump stated, "In my administration, I'm going to enforce all laws concerning the protection of classified information.  No one will be above the law."  On July 26, 2018, Trump issued a public statement announcing his decision to revoke former CIA Director John Brennan's security clearance.  He said that "I have a unique, constitutional responsibility to protect the Nation's classified information, including by controlling access to it."  He referred to Brennan's "erratic conduct and behavior" as showing that he should not have a security clearance.

The debate over whether Trump should be put on trial for the criminal offenses charged in this indictment will be between two opposing views.  Many people will say that putting Trump on trial will vindicate the rule of law by showing that no one--not even a former president--should be above the law.  These people will emphasize the strength of the case against Trump laid out in the indictment.

But on the other side, many people will accept Trump's argument that he is obviously innocent of any crime, and that the charges against him are really a partisan attempt of the Democrats to promote the reelection of Biden by eliminating Trump as the best Republican opponent.  These people will ignore the evidence presented in the indictment.  Indeed, over the past few days, those coming to Trump's defense have been largely silent about the specific evidence in the indictment.

Those arguing that this indictment shows the "weaponization" of the Department of Justice to serve partisan political ends will point to the fact that Biden has not been indicted for his mishandling of classified documents.

Those on the other side will point out that in January of this year, the Attorney General appointed Robert K. Hur as a special counsel to investigate how classified documents ended up in President Biden's private office and home.  They will also point out that Biden's lawyers turned over these documents as soon as they found them, in contrast to Trump's attempt to hide his classified documents and lie about what he was doing.

The litigation of Trump's case could become complicated because the chief clerk of court for the Southern District of Florida has assigned this case to Judge Aileen M. Cannon.  Judge Cannon is a Trump appointee who intervened in September of last year to order that the Justice Department could not review the documents that the FBI had seized in its search of Mar-a-Lago, and that a "special master" should take over the review of the documents.  This was widely seen as a brazen attempt by a biased judge loyal to Trump to delay the legal proceedings against him.  

The Justice Department appealed Judge Cannon's ruling to the United States Court of Appeal for the Eleventh Circuit in Atlanta.  On December 1, 2022, a three-judge panel from this court overruled Judge Cannon with a scathing opinion saying that Judge Cannon had no jurisdiction to intervene in this case, and that she was illegally trying to "carve out an unprecedented exception in our law for former presidents" that would deny the equal application of the rule of law (3, 20-21).  Remarkably, all three of the judges on this panel were Republican appointees, and two of them were Trump appointees.

This confirms my argument that Trump has often been defeated in his plot to overthrow American constitutionalism by judges that he himself appointed.  This supports the rule of law by showing that even if some of Trump's politically appointed judges (like Judge Cannon) will pervert the legal process to protect Trump, many of these judges will show impartial judgment in ruling against him.

If Judge Cannon again takes control of the case against Trump, she could rule in favor of the delaying tactics that Trump has used throughout his life.  Eventually, if a Republican is elected president in 2024, the new president (perhaps Trump himself) could pardon Trump or order the Department of Justice to drop the case against Trump.  

That could be a devastating blow to the Lockean rule of law in America.

Recently, as I have reread Smith's indictment, I have wondered why the indictment provides no explanation for Trump's motive in holding these secret documents.  For almost two years, the National Archives, the Department of Justice, and even his own lawyers told Trump that he must return the documents or face criminal prosecution.  He stubbornly refused.  He told his lawyers: "They're mine!"  Why?

The answer might be what I have described as his Grandiose Narcissism Personality Disorder.  Holding those classified documents and showing them to people around him make him feel important--as if to say, look at these top secret documents that I have, don't you how special I am?

Does the Evolution of Species by Hybridization Refute Biblical Creationism?

                                                          

                                                          The Golden Snub-Nosed Monkey

                                              

                                               The Black and White Snub-Nosed Monkey

                                                        The Gray Snub-Nosed Monkey

The latest issue of the journal Science has a special section on "Primate Genomes" that includes an article reporting genomic evidence that the gray snub-nosed monkey evolved through the hybridization of the golden snub-nosed monkey and an ancestor of the black and white snub-nosed monkey.  The evidence for this is the genetic mosaic of parental ancestries that show a major contribution from the golden snub-nosed monkey and a minor contribution from the black and white snub-nosed monkey.  This can be seen in the mosaic coat coloration for the gray snub-nosed monkey that shows a mixture of yellow hair from the golden snub-nosed monkey and black hair from the black and white snub-nosed monkey (Hong Wu et al., "Hybrid Origin of a Primate, the Gray Snub-Nosed Monkey," Science 380 [June 3, 2023]: 926).  These three species of snub-noted monkeys are found in the wild in southern China and the northern regions of Myanmar and Vietnam.

Although at first glance this report might not seem very interesting, showing the evolution of primate species by hybridization has deep scientific and perhaps even theological implications for how we understand the origin of species.

I have written previously about the debate over evolution by hybridization.  For a long time, the traditional belief of Biblical creationists was that the Creator had originally created all species of plants and animals to be eternally separate and fixed, and consequently God had specially endowed hybrids with sterility so that they could not reproduce and produce a new species.  But then in The Origin of Species, Darwin argued that some hybrids were fertile.  

Over the past 150 years, most biologists have recognized the evolution of new plant species by hybridization, but they generally assumed that this was uncommon for plants and impossible for animals.  In recent years, however, the evidence for the evolution of animal species through hybridization has grown--including the observation by Peter and Rosemary Grant of hybrid speciation in the finches of the Galapagos.  There is also increasing evidence that Homo sapiens may have interbred with Neandertal and other hominid species.

This would seem to refute the Biblical creationist doctrine of all species being created by God as eternally separated.  But then, as I have indicated in some previous posts, some Biblical creation scientists have argued that this is based on a misinterpretation of the Bible's story of creation in Genesis.  God created the "kinds" of plants and animals to be separate, but not the "species."  If "kinds" is understood to correspond to "families" in modern taxonomy, then we can say that God originally created all the "families" with the potential for evolving into different species by natural selection.

We could then say that since all the species of snub-nosed monkeys belong to the same family--Cercopithecoidea--God originally created that family of monkeys with all the genetic potential for evolving into separate species by natural selection and hybridization.

But recently, some of those who write for "Answers in Genesis" have warned that this is apostasy, because it concedes too much to evolutionary science and strays from the clear literal meaning of the Biblical teaching about creation.

There are at least two obvious problems here.  First, it shows that the Biblical Revelation is so obscure that Christians cannot reach agreement about its meaning--particularly, as it bears upon the creation-evolution debate.

The second problem is that this debate casts doubt on the Biblical teaching that human beings were set apart from and above all other animals by being created in the "image of God," which suggests that the emergence of the human soul must be a miracle that cannot arise by natural evolution.  If we agree that the Biblical "kinds" are not "species" but rather "families" in modern taxonomy.  Then we would have to say that while God created the Great Apes as a family of primates, the human species evolved within that family by natural selection from primate ancestors.

The Great Apes are a taxonomic family (Homididae) that includes eight living species in four genera: Pongo (the Bornean, Sumatran, and Tapanuli orangutans), Gorilla (eastern and western gorillas), Pan (chimpanzees and bonobos), and Homo (of which only modern Homo sapiens has survived to the present) (Yong Shao et al., "Phylogenomic Analyses Provide Insights into Primate Evolution," Science 380 [June 2, 2023]: 913-924).

Should we say then that all of these Great Ape species were created by God in His image, because there is no special creation to separate human beings from other Great Apes?  This has become a contentious issue for creation scientists.

The Second Coming of Christ in 2060? Isaac Newton and the Obscurity of Biblical Eschatology

On February 22, 2003, the London Daily Telegraph published a front-page story entitled "Newton Set 2060 for End of the World."  It was reported that a Canadian academic, Stephen Snobelen, had studied the thousands of pages of Isaac Newton's unpublished papers on the Bible held by a library in Jerusalem, and Snobelen had discovered that Newton had read the biblical books of Daniel and Revelation as prophesizing the end of the world--or at least the Second Coming of Christ--in the year 2060.  This story created an international sensation as newspapers and television news organizations around the world reported that Newton had decoded from the Bible when the world would end--and it was only 57 years away.  

Snobelen has written a report on this incident as showing how surprised people were to discover that Newton the great modern scientist--perhaps even the founder of modern science--was also an apocalyptic reader of the Bible.  Snobelen has also explained the global interest in this story as aroused by its coming in the spring of 2003, when the United States and its allies were preparing to invade Iraq, which is the country that includes the area that was once ancient Babylon, which is prominent in Biblical Prophecy (the "Whore of Babylon").  Some people wondered whether the world was headed to the final battle--Armageddon. 

For me, this shows how Newton was one of the first of a long line of modern scientists who have been Biblical religious believers, who have seen their scientific study of the Book of Nature and their religious study of the Book of Scripture as two ways to study the One Truth of God as the Author of both books.  This includes Christian scientists such as Francis Collins, Deborah Haarsma, Owen Gingerich, and John Polkinghorne.  (I have written previously about this "two books" tradition.)   But Newton's reading of the Bible also shows the failure of Biblical Revelation to convey a message that is authoritative, clear, and reliable--particularly, in its eschatology.  And this renders the "two books" conception of truth implausible. 

Newton's theological writings that were never published in his lifetime were only recently made easily accessible through the online "Newton Project" website.  Of this massive material--over four million words--only Newton's Observations upon the Prophecies of Daniel and the Apocalypse of St. John had been published in 1733, five years after Newton's death in 1727.  As Robert Iliffe (the first General Editor of the "Newton Project" at Oxford University) has explained, Newton kept these theological writings secret during his lifetime because they show that he was a Christian heretic in denying the orthodox Christian doctrine of the Trinity:  he believed that while Jesus was divine, he was not God.  He thus took the side of Arius against Athanasius in denying the Athanasian Creed that the three persons of the Trinity--Father, Son, and Holy Spirit--are "the same substance" (homoousion), and that no one who denies this can win eternal salvation.  Since the Church of England embraced the Athanasian Creed, Newton could not have publicly denied it without persecution.  He could not have had a professional career at Cambridge University, the Mint, or the Royal Society.  Iliffe has elaborated his account of Newton's secret religious life in Priest of Nature: The Religious Worlds of Isaac Newton (Oxford University Press, 2017).

The importance of the Athanasian doctrine of the Trinity for orthodox Christianity is celebrated today--June 4, 2023--in all of the Western liturgical churches as Trinity Sunday, which is the Sunday following Pentecost and eight weeks after Easter Sunday.  This is one of the few days in the Christian liturgical calendar devoted to a doctrine.

Newton's scorn for the doctrine of the Trinity was crucial for his interpretation of Biblical eschatological prophecy in the books of Daniel and Revelation.  Newton believed that the true religion of the early Christians was not trinitarian because while they worshipped Jesus as the Messiah, they saw Jesus as subordinate to God, and God alone was to be worshipped as the supreme God.  But then when the Catholic Church adopted the Athanasian doctrine of the Trinity and imposed this false doctrine on all Christians, this began the apostasy of the Trinitarian Church that is identified in Biblical prophecy as "Babylon."  The time of the reign of Babylon is identified in the Bible as 1260 days (Daniel 12:11, Revelation 11:3, 12:6, 13:5).  But since Newton interprets this symbolically as one day equaling one year, then Babylon's reign will last 1260 years.  After the fall of Babylon and the battle of Armageddon, Christ will return to Earth to restore the true Christian Church and reign with the saints on Earth for a thousand years (the Millenium) (Revelation 20:1-6).  After that, will come the final Resurrection and Judgment of all humanity, with eternal bliss for the saved and eternal suffering for the condemned.

Consequently, once Newton has identified the first year of the Babylonian apostasy of the Church, determining the date of the Second Coming of Christ is a simple matter of arithmetic--adding 1260 years.  Newton decided on 800 A.D. as the beginning of the apostate Church, because that was the year Charlemagne was crowned emperor of Rome in the west by Pope Leo III in Rome, which established the supremacy of the corrupt Trinitarian Church.  Newton could then see that 2060 would be the date for Christ returning to Earth to establish his thousand-year reign.

The date 2060 appears twice in Newton's unpublished writings.  At the "Newton Project," you can find these two passages in the online "religious writings" at the "Miscellaneous Drafts and Fragments on Prophecy" (number 75), in the "Fragments on the Rise of the Papacy and Revelation" (number 32, 7.3g), and the "Miscellaneous Historical and Apocalyptic Jottings on Various Scraps of Paper" (number 40, 7.3o).  These passages are also quoted by Stephen Snobelen in his "Statement on the Date 2060."

When the newspapers in 2003 reported that Newton had predicted the "end of the world" coming in 2060, they were mistaken.  The Second Coming of Christ will not be the end of the world strictly speaking, but it will be a transformation of the world under the rule of Christ.  What we might consider the end of the world comes after the Millenium, with the judgment of the dead, and anyone whose name is not in the Book of Life is thrown into an eternally burning lake of fire, while the saved enter the New Jerusalem of Heaven that is a new Eden of perfection (Revelation 20:11-22:5).

Although Newton is meticulously careful in his interpretation of this Biblical teaching, he cannot overcome the fundamental problem for all interpreters of the Bible--its obscurity.  Like all Protestant Christians, Newton assumes the doctrine of the clarity or perspicuity of the Bible.  The Bible is assumed to be clear enough so that any Christian, relying on the Holy Spirit for guidance, can determine the true meaning of the Bible, or at least what is necessary for salvation.  All individual Christians can act as their own priests in interpreting the Bible for themselves.  And yet Catholics recognize the falsity of this doctrine of Biblical perspicuity, because they see that the Bible is obscure, and that's why Catholics rely on their Church's clergy--exercising the teaching function of the Church (the Magisteria)--to maintain the traditional interpretations of the Bible by the Church.  This Catholic doctrine has been well developed by Casey Chalk in The Obscurity of Scripture: Disputing "Sola Scriptura" and the Protestant Notion of Biblical Perspicuity (Steubenville, Ohio: Emmaus Road Publishing, 2023).

Newton implicitly recognized this problem--that the Bible is not clear but obscure--when he admitted  that he was not completely confident about his date of 2060 for the Second Coming, and he saw the need "to put a stop to the rash conjectures of fanciful men who are frequently predicting the time of the end, and by doing so bring the sacred prophesies into discredit as often as their predictions fail."  Newton knew that there had been hundreds of prophetic predictions based on readings of Daniel and Revelation that had failed to come true.  In the Middle Ages, many people predicted the final Antichrist would come in the years 1000, 1184, 1186, 1229, 1345, and 1385.  In Renaissance Florence, Girolamo Savonarola, a Dominican monk, became so popular through his public lectures on the book of Revelation, in which he preached that Florence would become the New Jerusalem, that the people appointed him to become their ruler in 1494.  But then, in 1498, he lost the support of the people, and he was hanged and burned in the public square of Florence. Thomas Muntzer took part in the Peasant's Revolt of 1524 with this expectation that this would bring the Last Judgment.  But after 6,000 peasants were killed, he was captured and executed.  The early Baptist leader Thomas Helwys, persecuted by King James I, believed that he and his followers were experiencing the "great tribulation" predicted in Revelation.

After Newton's death, failed prophecies of the "end times" based on Revelation have continued for 300 years right up to the present.  Most recently, Hal Lindsey's book The Late Great Planet Earth, first published in 1970, told elaborate stories of how the Biblical prophecies of the Second Coming of Christ and the end of the world would be soon fulfilled.  By the end of the 1990s, twenty-eight million copies of Lindsey's book had been sold.

Beginning in 1995, Timothy LaHaye and Jerry Jenkins wrote a series of Left Behind novels based on the idea of "rapture"--that before the Antichrist became the despotic ruler of the world, all the true Christians would be "raptured" (taken up) into Heaven so that they would not suffer the age of tribulation predicted by Daniel and Revelation.  When LaHaye died in 2016, eighty million copies of his novels had been sold.  There had also been a series of popular movies based on his novels.

Beginning in 1992, prophecy scholar Harold Camping began predicting that the rapture would occur on September 6, 1994.  When it didn't happen, he moved the date to September 29, and then to October 11.  Eventually, he gave up on 1994, and confidently set the date at May 21, 2011.  When that day passed, he identified October 21 as the day.  Finally, on October 22, he quit and admitted that he had been wrong.  Many of the people who had believed his predictions sold all their property and left their homes to prepare to be raptured on the designated day. 

One good history of many of these prophecies based on the book of Revelation is Jonathan Kirsch's A History of the End of the World (HarperSanFrancisco, 2006).

Notice how all these prophets have differed from Newton.  They all predicted that the end was coming soon--during their lifetimes.  But Newton thought his predictions would not be fulfilled for a long time after his death--maybe 330 years in the future.  Once again, this indicates the obscurity of the Bible, which means that the Holy Spirit has failed to clearly convey the truth of Revelation.

The book of Revelation repeatedly declares that the prophecies in that book "must shortly come to pass" (1:1, 3; 3:11; 22:7, 12, 20).  Jesus' last words in the Bible are "I am coming soon" (22: 20).  

Here Revelation in the New Testament explicitly differs from Daniel in the Old Testament.  In Daniel (8:26), the angel says to "seal up the vision, for it concerns the distant future."  But in Revelation, the angel says: "Do not seal up the words of the prophecy of this scroll, because the time is near" (22:10).

Newton offered no explanation as to why he rejected this expectation of the first Christians that Jesus' Second Coming would occur in their own lifetimes.  But then, of course, he had to do this if he was going to avoid interpreting the Bible's prophecies as falsified by their failure to be fulfilled.

There are other ways to interpret the book of Revelation so that its prophecies are not falsified by subsequent history.  For example, Augustine interpreted the thousand-year reign of Christ and the saints as having already begun with Christ's first coming, because from the first coming of Christ, he could be understood as ruling over a spiritual kingdom--the City of God on Earth--that could later become the City of God in Heaven.  This has been adopted by the Catholic Church as its favored interpretation of Revelation.

But still, the fact that Christians cannot come to any agreement on this shows the failure of the Bible as Revelation.  Either there has been no Revelation, or the Holy Spirit has failed to convey that message of Revelation clearly to all believers.

We must conclude that the Book of Scripture is too obscure to be understood by human beings--perhaps as obscure as the Book of Nature that can only be partially and fallibly understood.