The Dark Night of Silence


It’s just a formality, really. Very easy to do. Easier than walking.

These are the quiet solicitations of the Inquisitor, a character in Martin Scorsese’s new drama Silence. The Inquisitor, played by Issey Ogata, is in charge of persecuting Christians in 17th century Japan. Japan’s Edict of Expulsion of 1614 attempted to eradicate Christianity from its islands. The Inquisitor tortures and kills Christians, but also cajoles with cold ruthlessness. Presenting believers with a plaque with either Jesus or Mary on it, he places it on the ground and tells them: step on it to renounce your faith. It’s a very simple motion, he says. Just one step. Nothing to it.

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Art of the Doge?

Doge And Lion Venice

A few years ago, my beloved wife finally persuaded me to accompany her on a trip to Italy. It proved to be so sublime that tears come to my eyes whenever I reminisce about the history, culture, art, scenery, cuisine, wine, and very mood I experienced there. Italy was like a hint of heaven or a pilgrimage to the cradle of our civilization.

Perhaps what amazed me most was how eerily familiar I found one place in particular: the Most Serene Republic of Venice. For in the distant mirror of that medieval commercial republic I discerned unmistakable reflections of the values, institutions, and civil religion of modern Americans. From its founding in the 8th century to its abolition (by wicked Napoleon) a thousand years later, the Venetian Republic was officially Catholic. But its real religion was a prosperity gospel under the patronage of St. Mark, the Winged Lion who blessed the fleets and commerce of the maritime empire and sustained its power and wealth.

The cathedral of San Marco, font of spiritual authority, and the palace of the doge, font of civilian authority, are literally joined at the hip in Venice. The republic was governed by its business elites through an elaborate array of councils, but at the top stood the doge, who was elected for life. He served as high priest of the civil religion and established the template or operational code of Venetian administration, trade, diplomacy, and war.

Did Americans choose a sort of a doge in 2016?

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The Foreign Emoluments Clause II: Inferences from the Interpretive Rules

In my previous post concerning the Foreign Emoluments Clause, I provided evidence from Rob Natelson that the term emolument had narrower and broader meanings.  The narrower meanings would cover money and benefits from an office, whereas the broader meanings might cover any benefit or advantage whatsoever.   In terms of whether the Clause would cover arms-length transactions with Donald Trump, only the broader meaning would cover those transactions. To resolve the ambiguity, an originalist – especially one who follows the original methods approach – would employ the original legal interpretive rules to see if they could answer the question. The Clause provides: No Title…

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Free-for-All in France

View of Paris from the Eiffel Tower

The French presidential election is almost upon us. The first round will take place in mid-April and the second in early May. Usually, such campaigns unfold in a way that is more or less predictable. Not this year.

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Preventing Minority Rule by the Administrative State

Jon Huntsman and Joseph Lieberman have written an interesting piece arguing against rule by narrow majorities. They believe rule by the 51 percent leads to polarization, instability, and oppression of minorities. I generally agree, and Mike Rappaport and I have devoted a substantial portion of our careers arguing that supermajority rule requiring consensus for government action, particularly at the federal level, is often better than narrow majority rule.

But even worse than enactment of coercive regulation by a bare majority is that by a minority. And the modern American administrative state encourages minority rule. The basic reason is that the President is likely to represent more the median voter of his party rather than the median voter of the nation. His nomination was secured by satisfying these voters. To be sure, his election and reelection depends on assembling a broader coalition but citizens appear to vote at the national election more on the state of the economy and a few very high visibility policies than a President’s overall administrative record.

As a result, an administration’s regulatory agenda will often represent the preferences of only a minority of the nation. Sadly, administrative law gives the President and his appointees substantial discretion to follow such preferences. Broad delegations allow for the choice of a wide range of policy points, including those on the more extreme ends of the spectrum.

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The Remnant

For most American Christians, Christmas has come and gone. True, some sticklers will keep their trees up until Epiphany, but, for most of us, the routine of daily life has resumed. For most Mideast Christians, though, the holiday is just beginning. Armenian Apostolic Christians will celebrate Christmas, according to ancient custom, on January 6. In Egypt, Coptic Christians, the largest Christian communion in the Mideast, numbering perhaps 12 million, will celebrate on January 7, as will Orthodox Christians in Bethlehem itself. (Mideast Catholics celebrated on December 25, along with their Western counterparts). The traditional processions are scheduled for Manger Square.

For Christians, Christmas is a joyous time. But, for most Mideast Christians this year, the holiday is an uneasy one.

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Introducing Mark Movsesian as January Guest Blogger

I am excited to announce that Mark Movsesian will be guest blogging at Law and Liberty for the month of January on religious freedom and migration issues facing the Middle East, among other topics. Some of our readers will recall Mark's earlier account of the Armenian genocide. In addition to being the Frederick A. Whitney Professor and Director of the Center for Law and Religion at St. John’s University Law School, he is co-director of the Tradition Project, a new research initiative that explores the continuing relevance of tradition in law, politics, and culture. He writes in law and religion, contracts and international and comparative law; his…

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Tolerance and Its Limits

Judges talk before rendering the verdict in the hate speech case against populist Dutch MP Geert Wilders of the Party for Freedom    Netherlands.  (SANDERKONING/AFP/Getty Images)

When I asked my young patients what their best qualities were, they would almost invariably reply: “I am tolerant and non-judgmental.”

“If you don’t judge people,” I would ask, “how can you be tolerant?”

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The Unjustly Neglected Roger Sherman: A Conversation with Mark David Hall

shermanThis edition of Liberty Law Talk is a discussion with Mark David Hall about American framer Roger Sherman who was the only framer to sign the Articles of Association, the Declaration of Independence, the Articles of Confederation, and the Constitution. At the Constitutional Convention, he spoke more than all but three delegates and helped forge the Connecticut Compromise. Yet his writings remain relatively obscure. To help rectify this is Liberty Fund's new volume entitled Collected Works of Roger Sherman, edited by Hall.

The Foreign Emoluments Clause I: Some Evidence of Historical Usage

The Foreign Emoluments Clause has received some attention recently in connection with President-Elect Donald Trump’s decision to maintain some of his business assets.  One question that arises is whether Trump’s businesses might conflict with the Clause if they engage in arms-length commercial transaction with a foreign government. One reason to believe the Clause would not cover President-Elect Trump is Seth Tillman’s argument that the Clause does not extend to the President.  But let’s put that to the side and examine whether the benefits from an arms-length transaction would constitute an emolument. The Clause provides: No Title of Nobility shall be granted by the…

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