St. Augustine, Conlaw Scholar

This, posted to the Conlawprof's service by yours truly:

***

It's not everyday that we mere mortals find ourselves in the same post 
with a genuine saint, but why pass up the chance?

One of our esteemed colleagues was kind enough to note this delicious 
article by Stanley Fish in the New York Times on Jan. 08, 2009 and 
pass it along, I hope for posting here.  Thank you very much, Mae 
Kuykendall, for a very good catch, indeed!

We had been discussing here the need to Sort the Conlaw Wheat from the 
Conlaw Chaff, not getting Led Down the Garden Path by the proverbial 
Red Herring, nor Being Taken in by any Window Dressing, of which I'd 
alleged there was a plenitude in the row over the appointment of Mr. 
Burris to the Senate by the now impeached but as yet untried Gov. 
Blagojevich of Illinois.  The taint over the alleged attempt to sell 
the senatorial office recently vacated by Pres. Elect Obama to a very 
high bidder was originally thought by some to so de-legitimize the 
appointment of Mr. Burris that it shouldn't be allowed to stand.  The 
innocent Mr. Burris has cogently argued that he didn't offer to buy 
the office as he didn't have any money, so he's clean, which seems 
like an interesting defense against taint to me.

At any rate, this sort of fiasco has arisen before and greater minds 
than mine have wrestled with it.  We've already noted Chief Justice 
Marshall in Fletcher v. Peck in around 1810 if memory serves, 
involving the Georgia legislature and some state land that got sold to 
some self-interested individuals not excluding the legislators.  The 
question was whether their dirty dealing could stand.  It did.  The 
remedy was to vote the rascals out or run them out, but not to undo 
the dirty deal.  And now it seems that St. Augustine, among the 
sharpest of thinkers I've heard, wrestled with the taint issue himself 
and came up with his own good reasons for allowing official acts to 
stand despite the taint of the official actor, even if he is a priest; 
especially if he's a priest.

It seems the earlier problem with the official acts of priests was 
that the priests turned to be not much more morally pure than the 
erstwhile Georgia legislators of Marshall's day and who knows, perhaps 
even Gov. B. himself.  We can't place souls in jeopardy over that, can 
we?  We can't, said St. A.

Here's the column from the Times that was so kindly forwarded by Prof. 
Kuykendall:

***

Stanley Fish - Think Again
January 8, 2009, 10:00 pm

Roland Burris and St. Augustine

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.

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