Taking a Stand

Here's the deal, folks: indidivduals, in the name of their religion, do something. If we deny those individuals certain rights that we might grant others, that is intollerance. If we tell those individuals that we disagree with what they did, that's not intollerance, that's merely disagreement.

In this instance, Group A flew some planes into the World Trade Center in the name of Islam. Group B responds to that by non-violently expressing its disagreement against this action and other actions of violent extremism. Group C responds, not to the first act, by Group A, but to the second act, by Group B - saying that it is intollerant, and hateful.

I don't get it. The Church in Flordia is objecting to violent acts carried out by extremist Muslims. They are doing so in a non-violent fashion without breaking any laws and, frankly, in the tradition of many who protest by burning representative things (flags, efegies, etc.) This is not intollerance. They are not saying that Muslim's shouldn't be allowed to build certain places (like the Ground Zero Mosque - for which the CofC did not "denounce"). I thought we all denounced the acts of violent extremists in general and 9/11 specifically?

So why does the CofC (Group C) publicly denounce this legal and non-violent denunciation (oh the irony)? Probably because it's easy. Because everyone is opposed to it. And, because we all claim to be "christian" so it's ok to criticize other christians. I doubt we'd get the same lecture from the CofC leadership of Muslim clerics calling for the killing of Christians. Now that sounds intollerant.

Responding to Budget Woes

A conference minister within the United Church of Christ gave a workshop presentation a couple of weeks ago and left the attendees with, what he called, the “one thing” they could do to ensure healthy and growing congregations. It was for each adult in that congregation to get to know one child or youth in the congregation by name, to know what school they go to, what grade they’re in, what their teacher’s name was, and what they were interested in – and then to talk to that youth each Sunday, calling them by name and asking what is happening in their lives.

The concept is not profound, but I know I don’t know any youth in my congregation that intimately. But his next point struck me even more. Someone responded cynically that, with soccer and baseball and other Sunday sports activities, their youth were rarely around. His response was to recount his own testimony about attending his grandchildren’s t-ball games. He said that, when each child went up to bat, every grown-up there, from her parents, to her coaches, to the other players’ parents, to the parents of the other teams’ kids, called out her name, shouting encouragement and voicing their support for her success. “Perhaps,” he said, “if Church were more like that, it would make a difference.”

I thought about this story as I read President Veazey’s address to the Community of Christ Finance Board regarding the latest woeful budget numbers. What strikes me as concerning is the overarching paradigm of leadership that current mission and work is above reproach such that the status quo is not only important to maintain, but the lack of response by the members is solely a result of their lack of awareness of how good this mission is or a lack of personal responsibility for the success of this mission.

The response of Church leadership to fiscal troubles appears to be almost entirely uni-directional. Diminished funds are a result of a failure in response of the membership and needs to be addressed by an increased response.

I desperately want to believe our people will respond to the vision and case for giving that we will be presenting to them.

I am going to trust the Spirit to bless the church and turn our members’ hearts to increased generosity in support of our worldwide mission.

I also will talk to people who are deeply devoted to this work who need some extra “inspiration” for increasing their generosity to reflect their full capacity.

To the extent World Church or leadership should be engaged, it is for the purpose of helping individuals better respond.

I am asking the Presiding Bishopric and Integrated Communications to reformat the FY 2011 budget you have just approved to communicate clearly the ministries supported by WMMT in contrast to those supported by other income sources.

Be a positive spokesperson for our worldwide ministries and the importance of supporting those ministries through tithing.

Be proactive in your public teaching and preaching ministry to bring positive witness to bear on Disciples Generous Response principles, World Church mission, and the need to support worldwide ministries that are making a real difference in the world.

Let me be clear: I do not mean at all to imply that world ministries specifically, or the Church’s wider mission in general is not laudable or even superior. I know many who work diligently in this area and are rightly committed and proud of this work and I am not meaning here to disparage it in any way.

But couldn’t some of the lack of response to the mission be attributable, in even a small part, to the mission itself? After all if we subscribe to the theology that tithing is a response, rather than merely a responsibility, then it stands to reason that the two sides of the coin should be examined in the face of decline – the response, and the mission to which we are asked to respond.

Imagine parents stop signing their kids up for a particular local t-ball league after years of full membership. To what would you attribute this decline? Do you suppose it’s because people have forgotten how much fun the league was? Have they forgotten how good the league is for their kids? Have parents made other choices, poorer choices even, at the expense of their children? All of these are perhaps possible and certainly, any good strategy for recovery would include a campaign to remind past members and inform new membership.

However, if support is waning for the league wouldn’t it make just good common sense for the league to take a look at its own product for potential problems? Has the t-ball league changed in a way that people didn’t like? Has the league failed to change in ways that made it less competitive relative to alternative sporting activities?

Shouldn’t the Church be asking itself these questions? And perhaps they are – but if they are, shouldn’t they also be communicating this to the members? Because it sure doesn’t sound like it – to the contrary, it sounds like it’s all the members’ fault: they’re not generous enough; they are unaware of the importance of the mission; they need extra “inspiration.”

Moreover, President Veazey is resolute that he will moralistically stick to the mission notwithstanding any contrary opinions of the members.

A nonnegotiable for me is that I will not compromise vision, message, and the Spirit’s clear guidance in the face of threats from individuals that they will withdraw their financial support if they do not agree with church direction or certain decisions.

I’m not saying he should not take this approach in the face of individual threats, but the optics are that Leadership sets the mission and we are to follow. If we elect not to follow, however, President Veazey makes it clear that threats can go both ways.

Another nonnegotiable for me is priesthood support of World Ministries Mission Tithes. Soon, we will put in place an administrative policy that will state clearly that we will not approve the ordinations of people whose understanding of the gospel and ordained ministry does not include awareness and support of the worldwide ministries of the church through tithing.

Again, this is not to say that the Leadership does not have the right mission and the right policies. But this message by President Veazey comes across as arrogant and elitist, and certainly doesn’t inspire me to increase giving.

If the President’s goal is not first and foremost to maintain status quo – then don’t open your budget address congratulating yourself that “[t]his budget decrease was achieved without staff reductions” - because members that aren’t close friends and colleagues with world church staff, probably don’t get passionate about increasing giving so that more church employees can keep their jobs. (Imagine President Obama having a press conference saying he managed certain minimal budget cuts – but “good news!” – they were all from cuts to programs and none of his staff will have to lose their jobs!)

If the President is examining the mission of the Church to see if it can be more meaningful in order to elicit a more meaningful response from members, then don’t dismiss concerns of members with regard to that mission as being “non-negotiable.”

If the President wants tithing to be a response to the ministry of Jesus, rather than admission to the club, then don’t threaten to deny what are supposed to be calls of God due to a failure to pony up in a sufficient manner.

The Community of Christ is not alone in this struggle. All denominational churches are seeing membership and giving decline – and have seen this for decades. But note the following contrasting response from the UCC:

Minister and Team Lead for Financial Development, Donaldson Hill, will provide leadership to a team exploring a broad range of alternate income streams and says that the projected budget shortfall "reflects the redefinition of the role of denominations."

Hill maintains that attitudes in the church and throughout society have shifted in such a way that the funding of ministry and non-profit organizations is changing dramatically. "We need to catch up with and build our organization around this change," says Hill. "That will be our task over the next few years. Going back to old funding models will not work."

The Church needs to implore those who use the services of the Church, who value it’s mission, to understand their responsibilities to support those services and the mission. But I don’t hold out a lot of hope for anyone who looks at the problem of declining interest, declining membership and declining donations as solely the problem of those who don’t feel compelled to give.

Community of Christ National Conference

Does anyone have any further insight on the discussions/decisions regarding national or field conferences? I know there were meetings after World Conference, and that summer 2012 has been penciled in as a potential US Conference date, but have their been further developments?

In the words of Bugsy Siegel: I cannot function efficiently when I am in a state of ignorance.

Thanks for your help.

Section 164: Homosexuality

If you read my blog and don’t read over at Saints Herald or John Hamer’s stuff, then you are short-changing yourself. These professional writers with insider connections offer valuable insight to anyone interested in the inner workings and institutional goings-on at the Community of Christ.

As noted below, the delegates at the 2010 Community of Christ World Conference overwhelmingly (is there any other way?) approved the canonization of new Doctrine and Covenants Section 164. Part of this new Section deals with the on-again off-again issue of re-baptism that was referred to the First Presidency back at the last World Conference. The other thrust was the introduction of regional, national or cultural conferences to address certain questions which are not appropriate to deal with in an international setting due to a variety of reasons.

But wait, you say, I thought the other part was about homosexuality – indeed paving the way for the imminent acceptance of GLBT (if not already opening the door)? Well, you’re not alone and I have no doubt that this was certainly on the mind of the Prophet when he penned these words. Others have assumed that we would now move to call national conferences, particularly in the US and western countries, to address the issue of homosexuality. And indeed we may.

Of course, reasonable people may believe otherwise.

And is it unreasonable to at least be skeptical? President McMurray made many believe that he was on the cusp of opening the church to GLBT when he asked us to live on the boundaries during his 2002 address to the World Conference and organized the Committee on Homosexuality and the Church with the express mission “to provide overview and guidance to the church-wide dialogue process regarding homosexuality in the church and make recommendations to the First Presidency regarding future policy or guidelines.”

Many felt that affirmation was imminent. But after walking back on policy in the face of the Community, Common Consent and the Issue of Homosexuality published after the World Church Leadership Council after their fall 2002 meeting, resolutions again flooded into Headquarters for World Conference 2004. If the WCLC wanted a decision by common consent – well by golly they were going to get it. A decision would be made – and in just a couple short years!

Of course, the litany of resolutions brought before the 2004 World Conference never received a vote either. The First Presidency deviated from parliamentary procedure to bring their own last-minute resolution calling for the referral of all homosexuality-related questions. Like D&C 164, this passed and the resolutions were swept off the board. Of course, there was great confidence and trust in President McMurray and the continued work of David Brock and the Committee on Homosexuality and the Church. Moreover, we had instituted listening circles, to begin healthy dialogue.

Surely by the 2006 World Conference, we would have an outline of new policies, or a pathway to achieve them.

But as happens from time to time (and of which we constantly run the risk if we delay) – a funny thing happened on the way to World Conference 2006. President McMurray resigned and a special conference was held to select Stephen M. Veazey as his successor. No legislation was considered at the 2005 Conference and the next was pushed from 2006 to 2007.

Tick tock. Tick tock.

At the 2007 World Conference, the topic that dominated the last two regular conferences was not in sight. No resolutions addressed the issue that had been hopefully referred to the First Presidency. The Committee on Homosexuality and the Church gave its report where it revealed the tremendous failure of its efforts to promote dialogue on the subject and elected to decline its mandate to make policy recommendations. The Committee was disbanded after conference, and no similar committee was ever instituted to examine policy or the issues surrounding GLBT in the Community of Christ.

Of course, this all changed when, in spring 2009, Community of Christ priesthood presided over the marriage of two same-sex couples in Iowa after the secular legal right was acknowledged by the Iowa supreme court.

So once again, the eyes of the GLBT world turned to Independence and a lot of some 20 resolutions were presented to the Conference addressing (once and for all!) the issue of homosexuality. What happened next is a matter of some interpretation.

Some feel that leadership, through Section 164 set the stage to finally accept homosexuals; doing so in a practical, if not dramatic fashion. Did those individuals feel the same way after 2002 with the President’s commitment and the institution of the Committee? After 2004 with listening circles and a First Presidency mandate to develop new policies? I’d be interested to know.

But I don’t think it’s unreasonable for one to question whether a conservative (institutionally if not ideologically) leadership struggling to maintain status quo during a time of economic and theological upheaval, may have just found a way to once again put off a difficult and potentially divisive decision for another day – upsetting some, but outraging no one. Might there be another problem as leaders attempt to “create and interpret Church policy” or implement local or national conference? Sure. But I’m sure the First Presidency, as Scarlett O’Hara put it – is happy to think about that tomorrow, after all, tomorrow, is another day.

Whether that day is one of openness and acceptance of all God’s children, remains to be seen.

Section 164: Conditions of Membership

Yesterday, the Community of Christ World Conference overwhelmingly adopted President Stephen Veazey’s Words of Counsel as new Section 164 of the Doctrine and Covenants. There was much good in the Document, but from a substantive policy standpoint, it really contains two points: first, on conditions of membership and communion (paragraphs 2, 3, and 4) and second, regarding human sexuality, morals and relationships (paragraphs 5, 6, and 7).

This post will refer to the first issue, on conditions of membership and communion.

While undoubtedly this new Section 164 will grease the skids for membership growth in certain parts of the world, what I consider truly historic are its theological implications. Few could argue the Church has been moving away from the notion of the Community of Christ as “the one true Church” – especially over the last 50 years or so. Like many issues, some feel this move has been too slow and tentative, while others have actively resisted or outright denied its occurrence.

This is understandable. The Church was founded on the notion that we were The One True Church in the Latter Days. This concept is very appealing to many. Imagine – out of the billions of people in the world, YOU have fortunately stumbled upon the ONLY group through which one can attain salvation!

But this is a poor, and dangerous theology. The idea of having a unique and exclusive line to heaven has lead to many tragic events throughout history – from the Crusades, to the Inquisition, to the Holocaust. The idea is completely counter to the other major pillars of the Church, such as Worth of Persons, Sacredness of Creation and All Are Called.

The movement from THE true church to A true church has been slow. But I think it would be difficult going forward to argue that we have not arrived. Paragraph 2a of the new Section 164 leaves little wiggle room:

2 a. Instruction given previously about baptism was proper to ensure the rise and cohesiveness of the church during its early development and in following years. However, as a growing number have come to understand, the redemptive action of God in Christ—while uniquely and authoritatively expressed through the church—is not confined solely to the church.

This is a major historical step and, in some ways, was likely made easier by the controversy over the second substantive point of the Words of Counsel regarding human sexuality. I’m sure some feel that this acknowledgment that the Community of Christ is one church among many, struggling to follow that still-small voice to attain enlightenment, will cause a rift. But I don’t think so.

Those who continue to believe the Church is alone in its authority and truth will not see any outward policy changes resulting from this new theological position and that will make it less painful, and less easy to convince members to leave their comfortable pews. For those who have long waited for the Church to clarify its position on this matter, it will embolden them in new ways.

This is an important and historical step, to becoming A true church and to becoming a community of Christ.

UPDATE: My prior post below has a 15/04/10 update.

UPDATED: “Mr. Chairman, I appeal from the decision of the chair.”

As I’ve discussed, the biggest problem with the Community of Christ First Presidency’s proposed legislation to have regional/national/cultural conferences to consider issues “not appropriate” for discussion at World Conference, is the lack of any checks and balances (common consent). The Prophet (in consultation) would determine which legislation he/she feels would be better off not considered, and then the Prophet would have the unilateral ability to call (or not call) regional conferences to considered the issues (not the legislation) as proscribed, again, unilaterally, by the Prophet.

On April 7, the Presidency revealed its proposed policies on conditions for membership and re-baptism. These policies were initially promised by the end of March and the timing is more than just inconvenient. Most delegates have left their jurisdictions for World Conference and are unable to confer with their local groups on the ramifications.


More troubling than this delay, however, is the Prophet’s stance on the proposed legislation (20 items) relating to homosexuality. He has said that, if the Words of Counsel are approved, he will, at an appropriate time, make a determination as to whether this legislation should be ruled out of order. To wait until Conference or even after approval of the Words of Counsel, is highly irresponsible and borderline conniving.

As opposed to the issue of Conditions for Membership, the Words of Counsel’s guidance on the issue of homosexuality is extremely vague. It speaks generally about being sensitive to different cultures and against making global decisions of morality, but there is very little (none) actual specific guidance. Nonetheless, in his questions and answers related to the topic, President Veazey has made clear that he will review, and potentially call out of order, legislation that he perceives will be in contravention of this Counsel.

But how the President plans on interpreting the Counsel to rule items out of order is extremely critical to determine whether the Counsel should be sustained. The bigger issue, however, is the problem with parliamentary procedure.

You see, in the April 7 Q&A the Presidency addressed the question of the erosion of common consent by saying:

If the Presidency rules legislation out of order based on the principle that deciding a specific policy for the whole church will likely cause harm in some nations, the World Conference has the option of appealing to see if that decision reflects the will of the delegates.

So the Presidency is placing the future of common consent – the doctrinal equivalence of a democratic institution – upon the will of individual conference delegates to (a) understand nuanced parliamentary procedure, (b) use this procedure to challenge the Prophet to his face and (c) convince a majority of the other tourists/delegates to join in challenging the chair based on this parliamentary procedure.

Having attended many World Conferences and being well aware of the delegates’ general understanding of parliamentary procedure and willingness to challenge the Prophet, I submit this is not a very fair maneuver on the part of the Presidency.
But if this is what President Veazey wants to do, then he should certainly give some advance notice of his intent to invoke the new Words of Counsel to rule items out of order. Why? Because of the nature of appealing orders of the chair.

Roberts Rules of Order states:

An appeal may be made from any decision of the chair (except when another appeal is pending), but it can be made only at the time the ruling is made. It is in order while another member has the floor. If any debate or business has intervened it is too late to appeal.”

So once the ruling has been made, a delegate must immediately appeal, before any other business intervenes. Without advance notice of what the chair is likely to rule, a delegate will have to immediately recognize an ruling has been made, immediately determine whether this ruling is appropriate, immediately find someone willing to second the appeal, immediately fill out his/her legislative card with the number 16 (appeal), immediately jump to his/her feet to get to the cue and immediately formulate a cogent argument to voice to the face of the Prophet that he screwed up. A daunting task indeed, and one that the President should be sympathetic to.

So we must assume that all legislation regarding homosexuality will be ruled out of order by the chair, anytime after the Words of Counsel are approved. This is not wild speculation either. The current schedule offers time before legislative session to consider all of the proposed resolutions in specifically designated dialogue sessions – all of the resolutions, that is, other than those 20 that relate to homosexuality.

When considering an argument against an out-of-order ruling, you must understand the basis for the ruling. You can’t argue the merits of the underlying motion, but the merits of the President’s decision. This decision is said to be based on the following:

Is this legislation in order according to our parliamentary rules? (BTC: this should be already cleared by the Mission Center prior to enacting the legislation, so there should be no problems here)

Does this legislation propose action contrary to the clear direction of the counsel? (BTC: not sure what this means. Again, its hard to imagine any homosexuality issue being in “contrary to the clear direction of the counsel” when nothing in the counsel was very clear on this issue)

Does this legislation ask the World Conference to decide for the whole church what likely would be harmful in parts of the church if it is adopted as an official World Church position? (BTC: the key here is “official World Church position.” If a particular resolution is not asking the World Church to take a “position” then it’s hard to see it being called out of order on this ground.)

Does this legislation propose action that would best be considered by a national or field (multinational) conference? (BTC: “best” is very subjective, but “action” is not. Does the legislation provide for the church to take action?)

I’ll give one example:

G-1, submitted by the Canada East Mission and the Arizona USA Mission, does not include the word “homosexual” “GLBT” or the like. It asks to amend WCRs 1182 and 272. This is not out of order on parliamentary grounds. It proposes no action in clear contravention of the Words of Counsel. It does not require the Church to take any position, let alone one that may be harmful. And it absolutely must be decided at World Conference, because regional conferences will have no standing to amend World Conference action.

If this resolution is deemed out of order, the Chair will effectively be saying that these two WCRs may never be amended. In addition, the Chair would be saying that his ability to consider resolutions extends beyond the words of the resolution, but to the perceived meaning, effect, and potential debate topics related thereto.

So look at the resolutions. Think like the First Presidency. And prepare arguments defending their debate and consideration. And remember, an appeal does not have to be recognized by the chair – meaning you don’t have to go to the cue and wait for your name to be called.

So fill out your card (No. 16). Find your second. But if you feel you won’t get recognized in time, just stand up, clear your throat and yell in an authoritative tone:

“Mr. Chairman, I appeal from the decision of the chair.”

15/04/10 - It's over. 21 resolutions actively worked on for more than a year in more than a half dozen mission centers from Africa, to Canada, to Latin America - have been wiped off the board in a matter of minutes. If the subject is addressed at a later date, it will be at the will and in the manner proscribed by the First Presidency.

Institutional Authority and Presidential Power

The First Presidency has always had tremendous power to shape policy and procedures in the Community of Christ. From direct power, to the indirect power of the bully pulpit, to the power of the Chair (I remember in 2004? when the chair recognized Larry Tyree to "discuss" the potential effect of proposed legislation requiring that ALL publications of the church be prepared in English, French and Spanish; no time limit, no rule of alternates - just a complete ignoring of Roberts Rules) to the power of lack-of-accountability (ie. no independent review of action; for example, in the previous example, the resolution passed; however, does anyone think it is followed? hint - it isn't).

However, World Conference was at least a time when the issues of the people could be heard and the First Presidency was required, at a minimum, to allow discussion and to be put on the spot to address these issues. Based on interpretation of the currently proposed Words of Counsel, the First Presidency is proposing legislation to eliminate this potentially uncomfortable situation. By amending the By-Laws to implement regional/national conferences to address issues deemed "inappropriate" for World Conference action, the First Presidency is keeping for itself the ability to determine what issues are addressed, when, and by whom.

Currently, World Conferences must be held on a timely basis (every 3 years). While leadership can decide on the theme and focus, individual mission centers can bring legislation for consideration so long as it does not conflict with the By-Laws of the Church. While the First Presidency could use and has used its authority to call certain items out of order, the parameters for doing so have traditionally been pretty narrow and the ruling occurs upon consideration of the resolution (after discussion groups and often, debate). However, the proposed modifications would greatly expand the ability, and subjectivity of the First Presidency to extinguish resolutions/issues, before they arise.

Recent proposed Words of Counsel indicate that certain issues "should be addressed by the World Conference" and others "are best resolved nationally or in other ways." This is interpreted by the First Presidency to permit them to decide, unilaterally, which resolutions are properly addressed by the World Conference. In his discussion regarding current proposed legislation, President Veazey said:

"At an appropriate time, the Presidency will share a statement about the status of each piece of legislation that could be affected by approval of the counsel. The Presidency will use the following questions to evaluate the legislation:

- Is this legislation in order according to our parliamentary rules?
- Does this legislation propose action contrary to the clear direction of the counsel?
- Does this legislation ask the World Conference to decide for the whole church what likely would be harmful in parts of the church if it is adopted as an official World Church position?
- Does this legislation propose action that would best be considered by a national or field (multinational) conference?"

Obviously, these points are much broader than the current gateway (does the legislation conflict with the By-Laws and rules) and provide much more latitude for the First Presidency to determine the nature of "harm" or to insert their own notion of what is "best" considered locally. To limit this subjectivity I submit that at a minimum, it should be a standing committee, rather than the FP itself that makes these determinations and a specific analysis be presented as to why a particular piece of legislation is being overruled.

Another obvious problem is timing. Currently, legislation must be submitted 120 days prior to World Conference. If, as will happen this conference, the consideration of the viability of resolutions is done after the deadline, there is no opportunity to correct, amend or modify the resolution into compliance. I think it would be appropriate to require a decision as to a particular piece of legislation within an allotted time, a period for challenge and hearing on the issue, and the opportunity to present an alternative resolution.

Finally, the pretext is that that these issues while not addressed at World Conference will be addressed at local conferences, either regional or national. However, according to the proposed By-Law changes, the ability to call these local conferences rest solely with the apostles and the First Presidency, with the FP holding a veto right. Moreover, there is no procedure for individuals or groups (such as Mission Centers) to offer legislation at these conferences, with the agenda being set exclusively by the apostles, with approval of the First Presidency. As such, while members may feel comforted that their legislation, while deemed not appropriate for World discussion, may be addressed at the local level, this is not necessarily the case and certainly, it is unlikely that their legislation will be taken up, even at the local level, in the form approved by the Mission Center.

The goal seem laudable. World Conference should be for World issues. Local issues should be addressed at the local level. However, the structure proposed by the First Presidency, has the effect of giving tremendous subjective power at the top to determine which issues are addressed at all levels and in what manner. This is not consistent with the notion of common consent. I have every reason to believe that the First Presidency will exercise this new power, if indeed they attain it, with fairness and objectivity. However, for leaders to be given credibility they must not only exercise power judiciously, they must avoid the appearance of impropriety. The risk of the proposed changes to the By-Laws don't mean that the First Presidency will now run the Church by fiat, but that every decision they make will be tainted with the knowledge that they could.

And this could be even worse than their actually doing so.

George Will Doesn't Like Health Care

My critique of George Will’s latest column.

That rock in the health-care road? It's called the Constitution.
By George F. Will
Thursday, January 14, 2010; A19

Although Democrats think their health-care legislation faces smooth sailing to implementation, there is a rock dead ahead -- a constitutional challenge to the legislation's core. Democrats who assume it is constitutional to make it mandatory for Americans to purchase health insurance should answer some questions:

BTC: If anyone “assumes” it is constitutional, Democrat or Republicrat, then they are likely not versed enough in constitutional law to be able to respond to complex constitutional questions of law and instead rely on those trained in such areas who advise Congress. It seems Will is taking his layman’s approach to law and appealing to those who would prefer to do likewise, rather than taking the advice and counsel of experts. Will takes this same stance when going against experts in the field of science.

Would it be constitutional for the government to legislate compulsory calisthenics for all Americans?

BTC: I don’t assume health care legislation is constitutional, I believe that it is based on analysis and consensus opinion, but I’ll try to take a stab anyway. I’d say yes, such a law would likely be constitutional (if unpopular and difficult to enforce).

If not, why not?

BTC: Oh, umm, if not, then likely it means a court would determine that the law were either procedurally flawed (too broad, wrongly passed, etc.) or, from a substantive perspective, did not reasonably relate to a legitimate government purpose, or is somehow outside the scope of Congress’ authority.

If it would be, in what sense does the nation still have constitutional, meaning limited, government?

BTC: This keeps coming up throughout Will’s op-ed; either agree with him that this one thing is unconstitutional, or it means that the entire constitution might as well be thrown out. So if Congress can constitutionally require calisthenics, then govt is no longer limited? The President wouldn’t have term limits, or be prohibited from passing laws? Would the military be allowed to take over? No more representative government or elections? The constitution limits the government in many many many many ways. Even if I were to concede that Will is right on the constitutionality of health insurance mandates, why would that mean that we no longer have a limited government?

Supporters of the mandate say Congress can impose the legislation under the enumerated power to regulate interstate commerce. Since the New Deal, courts have made this power capacious enough to include regulating intrastate activity that "substantially affects" interstate commerce. Hence Congress could constitutionally ban racial discrimination in "public accommodations" -- restaurants, motels, etc. -- as an impediment to interstate commercial activity.

BTC: Makes sense to me. But do only “supporters of the mandate” say this? No one who opposes the mandate believes that the mandate is constitutional? The is obviously Will’s misleading construct – his argument is sooooo right, that the only way it can be disagreed with, is due to partiality.

Opponents of the mandate say: Unless the commerce clause is infinitely elastic -- in which case, Congress can do anything -- it does not authorize Congress to forbid the inactivity of not making a commercial transaction, of not purchasing a product (health insurance) from a private provider.

BTC: Here’s that argument again – if Congress can require people to purchase health insurance (like they do car insurance) then it would mean they could do ANYTHING. This is not a rational argument. If Will has a rational constitutional argument, he is yet to make it.

"Congress can regulate commercial activities in which people choose to engage, but cannot require that they engage in those commercial activities." So says Sen. Orrin Hatch, who also notes that if Congress can mandate particular purchases to help the economy, there was no need for Cash for Clunkers: Congress could have ordered people to buy cars (with subsidies, if necessary). Why not the Anti-Couch Potato Act to Make Calisthenics Mandatory and to Impose a $50 Excise Tax on Cheeseburgers Because Unhealthy Lifestyles Affect Interstate Commerce?

BTC: I’m not even sure what the arguments are here. Setting aside the “rational relationship test” that all legislation must pass, I suspect that requiring people to buy automobiles would probably be constitutional under the Interstate Commerce Clause. Of course, the “need” for Cash for Clunkers was to inject government money into the system, and just forcing someone to buy automobiles would not have done that, or helped the economy – so saying that there was “no need” for Cash for Clunkers makes no sense. The sole purpose of Cash for Clunkers wasn’t to make people buy cars.But yes, I suspect if that had been the purpose, it would satisfy the Interstate Commerce Clause.

I’ve already talked about calisthenics, but the excise tax on cheeseburgers is the oddest example. The federal government currently taxes gasoline – why wouldn’t they be allowed to tax cheeseburgers? Will keeps throwing out arguments as if they are obvious, which obviates the need for him to explain what his argument is. Unfortunately, because of this, I don’t get it.

Many liberals, says Hatch, spent eight years insisting that "the Constitution sets definite and objective limits that the president must obey."

BTC: True – but we are talking about Congress’ power, not the President’s. Is Hatch suggesting that only liberals think there are limits on the president’s powers? Besides, “liberals” aren’t now saying Congress doesn’t have to live within its constitutional limits; “liberals” are saying that the individual mandate doesn’t stray from these limits.

There are, however, no constitutional controls on Congress if there are no limits on its power to declare all its preferences "necessary and proper" for the regulation of commerce.

BTC: Again, no one is saying that there are no limits on what Congress can deem necessary and proper. All that Congress is saying is that THIS particular legislation is necessary and proper. If Will wants to make an argument as to why it isn’t, I’d be happy to listen, but all he’s doing here is making snide comparisons. Here’s an example, once, Congress tried to pass a law restricting handguns in schools. This was overturned by the Supreme Court because, contrary to Congress’ claim, the Supreme Court didn’t think this had anything to do with interstate commerce. Will is arguing that, if the court were to affirm that health insurance did have something to do with interstate commerce, then the guns-in-schools legislation would not have been overturned. Tell me why that makes any sense.

Stuart Taylor, a judicious analyst of legal matters, says (in the National Journal) that the Supreme Court probably would uphold the constitutionality of the mandate, for two reasons: Because uninsured people create substantial economic effects by seeking free care from emergency rooms. And because the mandate is, in Congress's judgment, "necessary and proper" for financing health-care reform.

BTC: Hang on – Stuart Taylor is staunchly opposed to the health insurance mandate. But he thinks that the mandate is constitutional? At the beginning of this piece, Will said it was “supporters” of the legislation that thought it was constitutional and that it was “opponents” of the legislation that thought it was not. But the person he quotes as saying it is constitutional, is an opponent. Moreover, in the referenced article, Taylor also points this out:

So, why are most experts (and this columnist) so sure that the justices would uphold the mandate? And why do even Washington lawyers David Rivkin and Lee Casey -- the most prolific and among the most cogent critics of the mandate's constitutionality -- stop short of predicting that the Court would strike it down?

So while Will says it is supporters that think the bill is constitutional (implying that their opinion is based on their ideology) his referenced expert reveals that “most experts” even skeptics, believe it is constitutional.

This is just disingenuous on the part of Will. Of course, if he’d started his op-ed saying “most experts and even opponents believe the mandate passes constitutional tests, but I don’t” he may have had to make stronger arguments to support his minority, lay opinion. And, he may have struggled to convince his editor to allow him to use the headline that constitutionality was some “rock in the road” for health care.

But if any activity, or inactivity, can be declared to have economic consequences, then anything can be regulated -- or required.

BTC: Do you really think so? Yawwwwn.

Furthermore, judicial review -- and the Constitution itself -- is largely nullified by a doctrine of virtually unlimited judicial deference to Congress's estimates of what is "necessary and proper" for the regulation of commerce.

BTC: Again – the constitution certainly does far more than restrict the scope of Congress’ legislative authority. Does Will really think that this will open the floodgates back to segregation? Will Congress now be able to infringe on free speech? Sure, hyperbole has its place, but this is ridiculous.

If Congress does something beyond its constitutional powers, that something does not become constitutional merely by Congress saying it is necessary for this or that.

BTC: Agreed. But Congress isn’t saying it is necessary “for this or that” it’s saying its necessary for the regulation of interstate commerce. It almost seems that Will is making an argument that health care and health care insurance is not related to interstate commerce. If that’s what he’s arguing, he’s not doing a very good job of it. If he’s arguing that it is related, but that there is some other reason why this legislation should be deemed unconstitutional, I’m sure not seeing it.

Taylor also says that the alternative to upholding the mandate is for the court to strike down a president's "signature initiative -- something that no court has done in more than 70 years, for good reason." The reason is a general duty to respect government decisions arrived at democratically. Which brings us to what conservatives must believe in order to believe that the Supreme Court should declare the insurance mandate unconstitutional.

Judicial review -- let us be candid: judicial supervision of democracy -- troubles people who believe, mistakenly, that the Constitution's primary purpose is simply to provide the institutional architecture for democracy. Such people believe that having government by popular sovereignty is generally much more important than what government does; hence, courts should be broadly deferential to preferences expressed democratically. This is the doctrine of those conservatives who deplore, often with more vigor than precision, "judicial activism."

BTC: I’ll be honest. I don’t understand what he’s saying in these paragraphs. It looks like he’s opposing the position that courts should bow to majority rule. Not sure why that’s relevant, but let’s read on.

More truly conservative conservatives take their bearings from the proposition that government's primary purpose is not to organize the fulfillment of majority preferences but to protect preexisting rights of the individual -- basically, liberty. These conservatives favor judicial activism understood as unflinching performance of the courts' role in that protection.

That role includes disapproving congressional encroachments on liberty that are not exercises of enumerated powers. This obligatory engagement with the Constitution's text and logic supersedes any obligation to be deferential toward the actions of government merely because they reflect popular sovereignty.

BTC: He said he was going to tell us what conservatives would have to believe one of these things to also believe the mandate to be unconstitutional. He doesn’t say which, but I assume the latter? I think he’s arguing now not as to whether the mandate IS constitutional, but whether it SHOULD be constitutional. For that, he’s giving his opinion as to what he thinks the constitution should say and stand for. I suppose that’s fine. But it doesn’t really go to whether the mandate is constitutional, which is what I thought we were discussing.

The latter kind of conservatives are more truly conservative than the former kind because they have stronger principles for resisting the conscription of individuals, at a cost of diminished liberty, into government's collective projects. So a constitutional challenge to the mandate serves two purposes: It defies a pernicious idea and clarifies conservatism.

BTC: AAAhhh – so he’s not concerned as to whether the mandate is constitutional. He doesn’t even think it is unconstitutional. But he thinks it should be challenged because it is a bad idea and because it clarifies what conservatives feel the constitution should be about. I think spending time and money challenging every law that one considers a “bad idea” on its constitutionality is a waste of time and money.

But if the mandate is such a “pernicious idea” then why not write an op ed as to why it’s a pernicious idea, and not write an op ed about why its unconstitutional – even when experts, and the author, agree that it’s probably not?

Bottom line is Will thinks this is a bad bill. Rather than substantively discussing what's bad about it, he wants to say it's unconstitutional. When all the experts he consults say it likely is unconstiutional, he argues that it should be, notwithstanding the law. But instead of even saying that, he writes his opinion as if it is likely unconsitutional ("rock in the road") and that only those who are in favor of it ("supporters say") believe it is constitutional.

To me, that undermines one's argument.