Saturday, March 01, 2003

Some choice tidbits from Tertullian:

From The Treatise on the Soul, III:

"Would to God that no 'heresies had been ever necessary...' we should then be never required to try our strength in contests about the soul with philosophers, those patriarchs of heretics, as they may be fairly called. The apostle (paul) so far back as his own time, foresaw, indeed, that philosophy would do violent injury to the truth. This admonition about false philosophy he was induced to offer after he had been at Athens, had become acquainted with that loquacious city, and had there had a taste of its huckstering wiseacres (?) and talkers. ... The fault, I suppose, of the divine doctrine lies in its springing from Judah rather than from Greece. Christ made a mistake, too, in sending forth fishermen to preach rather than Sophists."

From The Treatise on the Soul, IX, in which he attempts to prove the soul has a material body in the image of the corporeal body:

"We have now amongst us a sister whose lot it has been to be favoured with sundry gifts of revelation, which she experiences in the Spirit by ecstatic vision amidst the sacred rites of the Lord's day in the church: she converses with angels, and sometimes even with the Lord; she both sees and hears mysterious communications (...) After the people are dismissed at the conclusion of the sacred services, she is in the regular habit of reporting to us whatever things she may have seen in vision (for all her communications are examined with the most scrupulous care, in order that their truth may be probed). 'Amongst other things,' says she, 'there has been shown to me a soul in bodily shape, and a spirit has been in the habit of appearing to me; not, however, a void and empty illusion, but such as would offer itself tobe even grasped by the hand, soft and transparent and of an etherial colour, and in form resembling that of a human being in every respect.'"

Interesting that this spirit being would offer its hand, don't you think?

Tertullian has a very cool emphasis on the connection between body and soul, and argues against the hair shirt mentality in chapter XL:

"The emotions of sin, indeed, when not resulting in effects, are usually imputed to the soul: 'Whosoever looketh on a woman to lust after, hath already in his heart committed adultery with her.' But what has the flesh alone, without the soul, ever done in operations of virtue, righteousness, endurance, or chastity? What absurdity, however, it is to attribute sin and crime to that substance to which you do not assign any good actions or character of its own!"

Lay down your philosophies, gentlemen, it's all about bodies.

Materially yours,

Thursday, February 27, 2003

A NEW ELDER: We have a new blogger. The Clerk has said that he is interested in posting stuff from time to time. He is a Yalie but an apparently nice person anyway. He does law and philosophy sorts of things, basically the kind of stuff that I would like to do if I were brighter than I am. Blog away eldren!
MEANING?: Under the Utah Constitution, "[t]here shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions." The interesting part of this is the Domination and Interference Clauses. What might they mean? In 1926, the Utah Supreme Court heard a case -- Ewing v. Harries, 250 P. 1049 (Utah 1926) -- in which a losing candidate for sheriff challenged the election of his opponent on the grounds that he won because of Heber J. Grant's endorsement. The court declined to grant any relief. The opinion is a bit unclear on the precise ground for its holding. (The plaintiff may have lost because of the somewhat esoteric issue of the proper equity jursidction of district courts.) However, the court does suggest that the Domination Clause does nothing more than restate prohibitions of the federal Establishment Clause, and that in any case it cannot be construed to place limits on the speech or franchise of citizens. (Note: a concurrence in the case suggests that the analysis of the Domination Clause is dicta).

As a textual matter, the Ewing court clearly seems to have it wrong. On its face the Establishment Clause is a prohibition on the passage of certain sorts of laws by the legislature. Even under a more expansive reading, the Establishment Clause only reaches state action. The Domination Clause, however, seems to be more like the Thirteenth Amendment to the federal constitution in that it reaches, on its face, non-state action. It prohibits certain activities by churches. As a historical matter the Ewing court has also got to be wrong. Nothing could be clearer from the context of the 1896 Constitutional Convention and the massive legal battles leading up to it, than the fact that the Domination Clause was aimed at the power of the Mormon Church in the state. I don't see any interpretive reason why the clause should not be read as placing affirmative limits on the activities of the church.

Of course, such a reading of the Domination Clause would arguably be unconstitutional under the Supreme Court's current readings of the federal constitution's Equal Protection, Free Exercise, and Establishment Clauses. Under Employment Division v. Smith and its progeny, laws targeting particular religious groups are presumptively unconstitutional. Under the much maligned Lemon test the Domination Clause would seem to present the risk of impermissible entanglement in the church's internal affairs. Under Evans v. Romer the Domination Clause probably fails Equal Protection analysis in that it explicitly declares that a particular group may not lobby on an equal footing for special benefits with other groups much like the anti-homosexual affirmative action referendum at issue in Romer. To the extent that the Domination Clause properly read requires some restrictions on the speech of Mormon leaders or of the Mormon church, it also probably runs afoul of the federal Constitution's Free Speech Clause.

One might try to rescue the Domination Clause with some sort of Ashwander analysis, ie ambigious statutes should be read so as to not violate the federal constitution. (Admittedly, this is not a statute, but I don't see why state constitutions shouldn't be subject to Ashwander style analysis). I have two problems with this. First, I don't much like constitutional avoidance canons since they serve to create semi-constitutional penumbras and generally increase the level of ambiguity in constitutional law, which in my view is already plenty ambigiuos thank you. Second, even if we engage in Ashwander analysis, I don't think that it should be used to rewrite the plain meaning of particular provisions. Courts, in my view, ought to just bite the bullet and declare the statute unconstitutional. (Note also: William Eskridge has demonstrated that as a political matter, reinterpretation rather than simply invalidating is likely to result in outcomes that could not command a legislative majority ex ante).

In short, I think that the Domination Clause should be read as prohibiting certain kinds of political activities by Mormons and the Church. I also think that it should be held unconstitutional.

Tuesday, February 25, 2003

McMURRIN AND THE LITERARY CRITIC: Interestingly, in The Theological Foundations of the Mormon Religion, Sterling McMurrin (an often over-rated thinker in my humble opinion) makes a point similar to the one made by the Literary Critic below. McMurrin argues that Mormon theology's rejection of transcendence in discussions of God make it into a species of secular humanism. I don't have the precise quote, but I can find it. Interestingly, a similar argument was made by an evangelical philosopher a while back. I can't remember the guy's name, but he wrote an article entitled "Are Mormons Theists?" that appeared (I believe) in the Journal of Religious Studies.

POST SCRIPT: My comment on McMurrin above is not meant as a jab at the Literary Critic but rather at some of the hagiagraphy that Signature Books and Sunstone has produced about McMurrin and his philosophical insight. For a good example check out L. Jackson Newell's introduction to the Signature edition of Theological Foundations. That is if you can gag all the way through it...