Friday, January 09, 2009

What Would St. Augustine Do About Roland Burris???

Jeff Haynes/Reuters
Roland W. Burris talked to reporters at news conference at Midway Airport in Chicago on Monday before leaving for Washington.

Roland Burris & St. Augustine

Stanley Fish - Think Again of The NY Times
January 8, 2009, 10:00 pm

The arguments against seating Roland Burris as the junior senator from Illinois come down to one word: “tainted.” It is not Mr. Burris who is said to be tainted. It is, rather, the man who appointed him, Gov. Rod Blagojevich, who has been caught on tape saying many sleazy, self-serving and despicable things.

It is not clear, however, that Mr. Blagojevich has actually done anything that merits either his conviction or impeachment. On that question, time will tell. And suppose that in the long run the governor is cleared of all charges, and suppose that in the short run Mr. Burris is denied a seat and someone else is appointed in his place. What then? Is the second appointee now dismissed because his or her appointment was “tainted” (he or she reached office as the result of an injustice)? Does the state start all over again and hold a new election?

Questions like these highlight the difficulties and conundrums that arise once the lawfulness of an official action is made to depend on the purity of the person who performs it. If the rectitude of the office-holder is crucial, how far back does one go in an effort to validate it? College? High school? Grade school? Sand box?

If an act can be declared null and void by a demonstration that those who signed off on it are unworthy, do all official acts rest on a foundation of sand? Can apparently settled decisions be undone in a second when evidence of venality is uncovered? Does your daughter lose her place in a college because the admissions officer who let her in turns out to be an embezzler? Do DWI convictions get reversed when the judge is revealed to be a drunkard? Is your marriage invalidated because the clerk or cleric who performed it cheated on his wife or stole from the poor box?

This last question is not new. It was debated in the 4th and 5th centuries in the context of what is known as the Donatist controversy. This debate was about the status of churchmen who had cooperated with the emperor Diocletian during the period when he was actively persecuting Christians. The Donatists argued that those who had betrayed their faith under pressure and then returned to the fold when the persecutions were over had lost the authority to perform their priestly offices, including the offices of administering the sacraments and making ecclesiastical appointments. In their view, priestly authority was a function of personal virtue, and when a new bishop was consecrated by someone they considered tainted, they rejected him and consecrated another.

In opposition, St. Augustine (rejecting the position that the church should be made up only of saints) contended that priestly authority derived from the institution of the Church and ultimately from its head, Jesus Christ. Whatever infirmities a man may have (and as fallen creatures, Augustine observes, we all have them) are submerged in the office he holds. It is the office that speaks, appoints and consecrates. Its legitimacy does not vary with personal qualities of the imperfect human being who is the temporary custodian of a power that at once exceeds and transforms him.

The context need not be a religious one for the same issue to arise. In the late 16th century the leasing of certain lands was challenged because Edward VI, who had made the lease, had not been of legal age at the time. In response, the crown’s lawyers invoked and clarified the doctrine of the king’s two bodies: “The king has in him two bodies, a body natural and a body politic.” His body natural is “subject to all infirmities that come by nature,” but his body politic does not have a bodily and imperfect form; rather it consists of “policy and government” that has been “constituted for the direction of the people.”

Directing the people is his job, and he has not only the right but the duty to do it no matter what kind of person he happens to be. Therefore the body politic – the king’s official power – “cannot be invalidated or frustrated by any disability in his natural body.”

In the next century, Thomas Hobbes was even more succinct when he declared (in his Leviathan) that the king is not obeyed because he is wise and good; he is obeyed because he is king.

Of course, President-elect Obama, majority leader Harry Reid and the members of the Illinois legislature are under no obligation to defer to the judgments of Hobbes, the crown’s lawyers or St. Augustine when thinking about the problem posed by Blagojevich’s appointment of Roland Burris. But they might well want to ponder the reasons that led those worthies to the position they took.

Virtue is a fine thing and it would be better if those who govern us instantiated it. But virtue is, for most human beings, an occasional achievement – sometimes you are, sometimes you aren’t – and, moreover, there is no public test, no test everyone would agree to, for determining its presence.

The legitimacy of an appointment can be either a procedural or a moral matter. If it is a procedural matter, authority is conferred by the right credentials, and that’s that. If it is a moral matter – only the good can be truly authoritative (this was John Milton’s position) – authority is always precarious, and the structures of government and law are always in danger of being dissolved.

The (perhaps paradoxical) truth is that while governing has or should have a moral purpose — to safeguard and advance the health and prosperity of the polity — it is not a moral practice. That is, one engages in it not by applying moral principles but by applying legal principles. Senator Reid and his colleagues in the Democratic party seem finally to have figured that out, which is why, in the absence of any more bombshell revelations, Roland Burris will be seated as the junior senator from Illinois.

About Stanley Fish

Stanley FishStanley Fish is the Davidson-Kahn Distinguished University Professor and a professor of law at Florida International University, in Miami, and dean emeritus of the College of Liberal Arts and Sciences at the University of Illinois at Chicago. He has also taught at the University of California at Berkeley, Johns Hopkins and Duke University. He is the author of 10 books. His new book on higher education, "Save the World On Your Own Time," has just been published.

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