Liturgical fretting for hypocrites

Posted on 2012-04-22 by Gilbert

I just left mass early.  It was a children's mass and I hadn't expected that.

Now I like children, and I like mass, and I approve of children's masses. But I can't bring myself to like them.  The way I feel it's supposed to be, mass is somewhat meditative and meditative is one thing the average adorable kid sure isn't.

So I tend to avoid the children's masses. Last week was, of course, first communion, so I went to evening mass instead. But this week they have a thanksgiving mass and that caught me by surprise.

The funny thing is, obsessing about the form of the liturgy is one of the things I really dislike about Catholicism in practice. We have people who think the ordinary form is a Freemason plot to destroy the Church and people who think the extraordinary form is a fascist plot to bring back the dark ages.  And people on both sides of the for all/for many question thinking this is ever so important.  And I stand aside with the smug feeling of an agnostic looking down on both sides. Because really, ritualistic details are not what the mass is about. For the first few centuries there were no missals and the priests just improvised.  Then we went for some standardization because we are creatures of habit and that's fine. But moving those details to the center really misses the point of mass. Which, for Christ's sake, is Christ. Literally. Right there on the altar.

So you might see the irony of me in mass dismayed that it was done different from what I had expected. I saw it too.  Also, I felt a bit guilty, like I was one of the insufferable grumps complaining about kids crying in church.  So at first I wanted to stay.  Then a few minutes later I decided that evening mass looked a lot more appealing than abstract principles.

On the way home I was thinking about what this says about me. God willing, I might one day be a dad. In which case children's masses would be kind of an obligation. Would I resent that? Well maybe, because I am sometimes resentful without good reason. But in the end I don't think it would be a mayor problem. Children's mass would be a very different experience if I classified it as cute kid stuff rather than solemn meditative stuff.  It is actually the context switch that is uncomfortable.

And that actually does accord with my particular weirdness. I'm a natural born reactionary: I don't like change.  When I needed new bedsheets a while ago I spent hours (unsuccessfully) searching the Internet for ones identical to the old ones.  And I don't like people changing their look either, even if it's an improvement.  Surprising change is particularly bad.

While I'm an extreme example, I think other people share this instinct to some extent.  There is a reason we got missals eventually. And maybe this explains a lot of liturgical fretting.  People are creatures of habit and that isn't bad anymore than liking some foods over others is bad.

It has a downside though, in corroding community. Traditional and modern mass communities do dislike each other and that shouldn't be so. And while it is more than that, mass is also a community thing which makes it somewhat strange for me to just leave it.  So we  should try to look out for that.

Perhaps I should start by attending a children's mass on purpose.  The context switch will be much more bearable if I know it a week in advance.

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Today in history

Posted on 2012-03-21 by Gilbert

75 years ago today, on March 21, 1937, the papal encyclical Mit brennender Sorge (with burning concern) was read in all Catholic churches of Germany.

It had been prepared and copied in secret, for doing that openly  already a totalitarian state at that time. The content was an explanation of the incompatibility between National Socialist ideology and Christianity. The Vatican has both the German original and an English translation online. Money quotes:

Whoever exalts race, or the people, or the State, or a particular form of State, or the depositories of power, or any other fundamental value of the human community - however necessary and honorable be their function in worldly things - whoever raises these notions above their standard value and divinizes them to an idolatrous level, distorts and perverts an order of the world planned and created by God; he is far from the true faith in God and from the concept of life which that faith upholds.

[...]

The peak of the revelation as reached in the Gospel of Christ is final and permanent. It knows no retouches by human hand; it admits no substitutes or arbitrary alternatives such as certain leaders pretend to draw from the so-called myth of race and blood. Since Christ, the Lord's Anointed, finished the task of Redemption, and by breaking up the reign of sin deserved for us the grace of being the children God, since that day no other name under heaven has been given to men, whereby we must be saved (Acts iv. 12). No man, were every science, power and worldly strength incarnated in him, can lay any other foundation but that which is laid: which is Christ Jesus (1 Cor. iii 11). Should any man dare, in sacrilegious disregard of the essential differences between God and His creature, between the God-man and the children of man, to place a mortal, were he the greatest of all times, by the side of, or over, or against, Christ, he would deserve to be called prophet of nothingness, to whom the terrifying words of Scripture would be applicable: "He that dwelleth in heaven shall laugh at them" (Psalms ii. 3).

The Nazi government reacted like totalitarian governments typically do:  It ensured the press didn't mention the encyclical.  Then it closed Catholic institutions of education, seized the printing shops that had participated in copying the encyclical and staged show-trials against Catholic clergy for sexual immorality.

But most of this was just an acceleration of what they already had been doing. Basically they kept it quiet and intensified their program of marginalizing the Church.  And it worked. Annexing Austria and the Sudetenland a year later, Hitler rose to new hights of popularity.  Everyone knows what happened after that. Any internal opposition remained limited to historical footnotes. Germany no longer was the kind of country where speaking out has political effects.

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Someone is wasting my money

Posted on 2012-03-18 by Gilbert

Within minutes of posting this, it was accessed by two IP's that had never been here before. One is registered to the Commission of the European Communities, the other to the  Council of the European Union. Both were using dated versions of Firefox and both returned to the same page about 3/4 of an hour later.

The first two visits where shortly past 1:30 am on a Sunday.

I think there might be some money saving potential at the European institutions.

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Constitution blogging day wrapup

Posted on 2012-03-18 by Gilbert

This ends my day of blogging on the German constitution. Technically, the day ended two hours ago, but I didn't finish in time.  I didn't cover everything worth covering. For example, a lot could be said about proportional representation, international law, national defense, conscription, and emergency provisions. But for today I'm done and you'll have to do without my sublime insights on those questions.

The Federal Convention I took as occasion of this special blogging day will meet at noon, 10 hours after this post goes online. Frankly, I won't be following it. I do have a lot of respect for the office of the president, but the Federal Convention is boring.  There will be no debate and the result is already public knowledge.

To recapitulate I told you about the Basic Law being a provisional arrangement turned permanent, how I dislike the parliamentary system but like its seperation between the heads of state and government, how i would tweak the presidential election process, about the peculiar German halfheartedness about federalism,  about the abolition of capital punishment being an upside and the lack of direct democracy being a downside of the Basic Law, of my paranoia about judicial review and eternity clauses, and of some problems ahead with European integration.

That's it, I hope you liked it.

 

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Delegation and Europe

Posted on 2012-03-18 by Gilbert

Germany is traditionally big on European integration. And indeed European integration has gone much further than anyone would have expected, say, 30 years ago. In fact it has gone much further than most Europeans realize.

Right now I won't explain the political system of the European Union in any detail. But the system is generally regarded to have a lot less democratic legitimacy than the member states have.  On the first try of pushing through the last iteration of the EU  treaty it was called the constitution treaty. When it failed referenda in Ireland and France that name was shelved and we got basically the same thing with a new name. But that name gave rise to a symptomatic joke:

The American Constitution has 4 pages and begins "We, the people of the United States..."

The European Constitution has 4000 pages and begins "His majesty, the king of the Belgians..."

In theory, this is not a problem, because the constituent countries remain fully sovereign and the Union only exercises narrow delegated powers. But those powers turn out not to be that narrow in practice.  The power to regulate the common marked, for example, is interpreted about as broadly as the American interstate commerce clause, i.e. it includes basically anything even vaguely related to any economic activity. So lots of new laws and particularly the most important ones nowadays come from Brussels rather than from Berlin.

So how much power can we delegate to Brussels without undermining popular sovereignty? In Germany the Federal Constitutional Court reserves the right to decide on that question. This power is particularly delicate, because, as you may remember, the principle of popular sovereignty is protected by the eternity clause. When the court let the last iteration of the treaty pass, the official reasons could basicall be summarized as "This is barely constitutional, because, if interpreted with proper restraint, it is the very limit of powers Germany can delegate to the Union."  They were slightly more subtle, but that was the basic message.

Obviously, if we want to continue with the treaties' official goal of an "ever closer union" there are problems ahead. So what should we do about it?

Pessimistic as I am, I think there is a possibility of the problem being moot.  There is a real chance of the present financial crisis doing European integration in. If that happens, we might end up with a slightly tuned up free trade agreement and the limits of delegation might be a question of counter-factual history.

But what if the European process survives? In that case I think it's the Union that must change. I'm uncomfortable with the Federal Constitutional Court making that kind of final judgments, but they have a point.  The present process of European leaders piecementally  removing fields of politics from the countries' constitutional processes and transfering them to a far less democratic bureaucracy can't legitimately be taken to its logical end.

Pretty soon we will have to give up on the ambivalence on where the Union is headed. If we want it to be a supranational cooperation it already has about as much power as is possible in that mode of existence. In that case we should declare victory on the project of a united Europe and realize the integration process is finished. If, on the other hand, we want it to be a federation, then that federation needs a real constitution of its own, deriving its authority from a European people yet to be founded. In that case we need an agreement on the relation between individual and national equality. I think the obvious solution is American style bicameralism. And then the new Federation needs institutions of its own, elected by the new people and independent of the national institutions.

The obvious problem is that the countries don't agree on where the Union is headed and definitely not on who would have how much representation in which organs of a federation if there  should be one. So our politicians prefer waffling on.  But that can't work much longer.

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No direct democracy

Posted on 2012-03-17 by Gilbert

One standard criticism of the Basic Law is that it doesn't allow the people to ever vote on federal laws directly. This is a point I fully agree with. As I said in my last post, a simple majority at the polls should be sufficient to amend the constitution. But beyond that, we should also have the possibility of initiative statutes and referenda against acts of the Bundestag. Just let the sovereign be sovereign.

The reason the framers didn't include any instruments of direct democracy was their feeling that democracy had gone too far under the Weimar constitution thus creating the instability that allowed for Hitler's rise to power.  This story isn't entirely false, but in so far as it's true it's a story of the parliamentary system being unable to sustain the permanent majority it relies on. Hitler rose through the democratic institutions the frames retained, not through those they abolished.

The other standard argument against direct democracy is that the polloi might use it to bring back the constitutionally abolished death penalty. I find it hard to take that argument serious.  As an empirical matter, there is no popular majority for the death penalty. If the worry is about some sudden rage, perhaps because of a spectacular crime, that could easily be avoided by allowing the Bundestag to delay the vote for a few months. And if the people really wanted to bring it back they could do so through the present process, surely someone would be willing to pander for their votes.

So this issue is pretty one-sided to me: direct democracy is the way to go and the real reason we don't do it is that the political class would loose power it shouldn't have in the first place.

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Eternal articles and judical review

Posted on 2012-03-17 by Gilbert

One of the most famous features of the Basic Law is its eternity clause in article 79 (official translation, emphasis mine):

Article 79
(1) This Basic Law may be amended only by a law expressly amending or supplementing its text. In the case of an international treaty regarding a peace settlement, the preparation of a peace settlement, or the phasing out of an occupation regime, or designed to promote the defence of the Federal Republic, it shall be sufficient, for the purpose of making clear that the provisions of this Basic Law do not preclude the conclusion and entry into force of the treaty, to add language to the Basic Law that merely makes this clarification.
(2) Any such law shall be carried by two thirds of the Members of the Bundestag and two thirds of the votes of the Bundesrat.
(3) Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.

Länder is the German word for states. Article 1 declares human dignity inviolable and introduces the fundamental rights, clarifying that they are actual law rather than declarations of intent. Article declares The Federal Republic of Germany a "democratic and social federal state" and protects popular sovereignty, the separation of powers, and the rule of law. It also contains a right to resistance against people trying to overthrow the constitutional order, but since that is a later amendment it is disputed whether that right is covered by the eternity clause.

So some principles are simply not subject to amendment. Most legal scholars think this would apply even if we got a new constitution under article 146.

I understand the idea behind this guarantee. The framers remembered freedom abolishing itself in 1933 and this never should be an option again. But this ignores that laws don't apply themselves. In practice this guarantee must be interpreted and that gives the Federal Constitutional Court judicial review of constitutional amendments. I don't think this is much of a protection against a new Machtergreifung. A majority sufficient to amend the constitution is also sufficient to stack the court. But in normal times it gives the Federal Constitutional Court a tool for striking down even constitutional amendments. Now most Germans don't worry about judicial usurpation, but I do. The idea that a council invested with significant political power would become apolitical just by being called a court is absurd.  And in fact the framers would be very surprised about some principles the court found in their work during the past 50 years. The words "Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed.", for example, "mean" that the state must run "independent" television channels but not newspapers.

Some judicial review is worthwhile. Without it the political process would just ignore all fundamental rights.  But we should never forget that it is effectively the rule of people just as fallible as  those in the legislature.  And if evil laws are unavoidable, as they are, then I prefer evil laws coming out of the democratic process. On balance I feel judicial review is worthwhile if the people can amend the constitution by a simple majority in a referendum, thus overriding those judicial excesses they actually care about.  The German requirement of a 2/3 majority in the Bundestag and the Bundesrat is already making it too hard for my taste.  And as hard as it is to amend the American federal constitution, Americans have no reason to be surprised their constitution was effectively replaced by case law only symbolically related to its text.  The German eternity clause is the far end of that continuum. So far it has never been applied, but if the court ever gets into that habit it will be the end of the values it was meant to protect, leaving us with a council ruling without any way of overriding it through the democratic process. So the eternity clause is a very bad idea.

While we're talking about judicial review, the Basic Law introduced a useful procedural rule copied by most later constitutions:

 

Article 100
(1) If a court concludes that a law on whose validity its decision depends is unconstitutional, the proceedings shall be stayed, and a decision shall be obtained from the Land court with jurisdiction over constitutional disputes where the constitution of a Land is held to be violated, or from the Federal Constitutional Court where this Basic Law is held to be violated. This provision shall also apply where the Basic Law is held to be violated by Land law and where a Land law is held to be incompatible with a federal law.
(2) If, in the course of litigation, doubt exists whether a rule of international law is an integral part of federal law and whether it directly creates rights and duties for the individual (Article 25), the court shall obtain a decision from the Federal Constitutional Court.
(3) If the constitutional court of a Land, in interpreting this Basic Law, proposes to deviate from a decision of the Federal Constitutional Court or of the constitutional court of another Land, it shall obtain a decision from the Federal Constitutional Court.

"Land" is  German for what I translated as "state". So basically every constitution is interpreted by only one court and any other court thinking a law unconstitutional must refer it to the court interpreting the constitution. In hindsight that rule is a no-brainer. If every court can strike down laws, those decisions will be appealed to the highest court anyway. The only thing lost by sending such matters up directly is the ability of individual judges nobody ever heard of going berserk.

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Half-hearted federalism

Posted on 2012-03-17 by Gilbert

As the name might imply, the Federal Republic of Germany has constituent states.

Federalism, of course, has many advantages. It keeps decisions closer to the people, allows laboratories for experimentation, etc. In theory most Germans agree with this, but when it comes to practical examples most of us get squeamish. Almost everything seems too important to be arranged in 16 different ways.

This leads to the states having much less legislative competences than the states of other federal countries. The Basic law reserves some questions (such as national defense) to the federation and some (such as schooling) to the states exclusively. But most questions are matters of concurrent legislation. This is basically what Americans know as the only kind of federal competence: Both the federation and the states can legislate, but where they conflict federal law prevails. In practice, the federation has exercised almost all concurrent powers. For example, almost all of civil and criminal law is federalized.

The most important legislative powers reserved to the states are on schooling and culture. But even there most Germans are weary of legal "patchwork". So the states organize into compacts to make their systems similar.

The other aspect of federalism is an institutional separation between the states and the federation, and we don't much care for that one either. For example, the income tax is fixed by federal law but collected by the states, with each sovereign getting half of the revenue. If I think the state tax office overcharged me, I can sue in a state court, but the looser can appeal to a federal one. Similarly, almost all crimes are created by federal law, but investigated by state police and prosecuted by state prosecutors in state courts. But if it's important enough, final appeal lies to a federal court. There are lots of exceptions, but the default pattern is that the states execute federal law.

The final aspect of federalism is the states' participation in federal government. In Germany this happen through the Bundesrat (Federal Council). The Bundesrat is almost totally dissimilar to the American Senate. It is composed of delegates of the state governments, that is of the executive departments. The states' votes are roughly staggered by population, but not quite proportional. States can't split their votes.

When it comes to competences, by default the Bundesrat has a veto the Bundestag (parliament) can override by simple majority. Since the government has a permanent majority in the Bundestag, that is just a formality. There are, however, very important exceptions needing  active consent of the Bundesrat.  The precise rules are very complicated, but the main grounds necessitating the Bundesrat's consent are amending the constitution, changing anything about taxes of which the states get (part of) the revenue, imposing financial burdens on the states, and prescribing the organization of the states' administrative bodies.  If the states and the federation were as separate as their American counterparts these would be very rare exceptions indeed. But remember, in Germany the states mostly execute federal law, bearing the financial burden thereof. And often the federation will want to prescribe something about the organization of the agencies that will end up executing the law. So in practice, most important laws need the consent of the Bundesrat. Sometimes it's possible to separate the controversial part from the part needing consent and pass them separately. But often it isn't.

In practice, the state governments vote by party line. This is seen as one of their most important functions. To a large extent the states' general elections are seen as indirect elections of the Bundesrat delegation. And most of the time the majority of the Bundesrat is opposed to the majority of the Bundestag. While we can't get it between the legislative and the executive department, we do like installing divided government between Bundestag and Bundesrat. So more often than not, the need for consent of the Bundesrat reduces to the need for consent of the opposition.

I think my title sums it up: This is a fairly half-hearted federalism. Germans really don't identify with their home state anywhere as closely as Americans do with theirs. But if that's what we want, I wonder why bother with state parliaments that have very little power.

If it was up to me, I would try some disentanglement. The federal government should have to reimburse the states for anything it mandates them to do. That way federal law no longer could impose financial burdens  on the states and one main reason for consent of the Bundesrat would disappear. On joint taxes, the states should be able to fix their own rates as a percentage of whatever the federation mandates for itself. That way the states could compete on taxes and service levels. In compensation the Bundesrat should loose its veto over the rest of the tax rules. The Bundesrat, which thus would loose most of its absolute veto power, should get a one-year suspensive veto on everything, like the British house of Lords. Also it should be changed to delegations of the states' legislatures, which should be elected by proportional representation and be allowed to split their votes. Finally, some areas of concurrent legislation should be returned to the states. Land titles, for example, are by definition local and thus should be regulated locally.

In reality, of course, it isn't up to me.

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"Capital punishment is abolished."

Posted on 2012-03-17 by Gilbert

Those are the simple words of article 102 of the Basic Law.

Nowadays most developed countries have abolished capital punishment and many have done so constitutionally. But in 1949 constitutional abolition was still unusual. We Germans tend to over-idealize this decision, thinking it a reaction to Nazi atrocities.  In fact it was at least partially meant to save the neck of war criminals. Still, it is a civilizational achievement to be proud of.

Capital punishment may be necessary in third world countries where long term imprisonment is not an option. And at earlier points of our history it might have been necessary for the same reason.  But in a modern industrialized nation there is no excuse for still imposing it.

The one downside I see in this achievement is how it moves the Overton window. With death totally off the table the debate moved on tho lifetime imprisonment. After pardons became standard the Federal Constitutional Court ordered a formalized review scheme. Nowadays the average length of a "life sentence" is just under 20 years.

I understand the humanitarian instinct behind that development.  We must avoid turning criminal punishment into vengeance. But I still think it is misguided. The deterrent effect of real lifetime imprisonment is pretty much an empirical fact, though it probably wasn't as certain at the time of the constitutional judgment. Also, I don't think we know how to resocialize everybody.  In the case of sexual murders we now talk of resocialization if the risk of recidivism is reduced as far as it is reducible. But that is still a far cry from reducing it to the risk of normal people committing that kind of crime. Not locking some people up for their lifetime has too high a cost in innocent life and I don't think the rights of murderers can justify that.  The laudable effort not to treat criminals as objects ends up treating innocents as objects expendable in the course of our humanitarian efforts. I don't think that leaves us with much of a standing to criticize Americans still executing people.  Also, I fear an eventual backslash bringing capital punishment back.

But still having done away with capital punishment is among the greatest achievements of the Basic Law.

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How to choose a head of state

Posted on 2012-03-17 by Gilbert

In my last post I approved of the German constitution's design choice to have an apolitical head of state.

Once that design choice is made the question is how to choose that head of state. The obvious first idea is popular election. Some other parliamentary republics do it that way and it is a frequent reform proposal for Germany. Personally, although I want popular elections of the chancellor, I'm not that fond of a popularly elected president. Since he is supposed to be above politics there is nothing to campaign on. Candidates might try character assassination, but that doesn't really comport with the dignity they should project after their election. So at best we would end up with campaigns devoid of any real content.  A cynic might say that's not so different from any other electoral campaign, but in this case it would be so by design.

The other extreme is not having elections at all and just making the office hereditary. That's of course how a parliamentary monarchy works. It's hard not to admire the stringency of that solution. A person can't be more removed from democratic party politics than a king.  But I don't like that solution either. Equality is at the philosophical core of democracy and the head of state is highly symbolic. Making headship of the state a constitutional privilege of a family would basically mean the commonwealth would be denying itself. Also, royal families carry historical baggage that can seriously hinder their integrating function.  The British monarchy, for example, is not all that successful in channeling the loyalty of Catholics.

That essentially leaves us with having the president elected by an other constitutional organ. In Germany that organ is the Federal Convention (Bundesversammlung). Consisting of the members of the Bundestag and an equal number of members elected by the state parliaments, it is only convened for electing presidents. The state delegates are often celebrities reliable enough to vote for their parties candidate but not actively involved in professional politics. There is no debate.  The result has of course been fixed in backroom deals weeks earlier.  For example, the 15. federal convention meeting tomorrow will elect Joachim Gauck on the first ballot. In case you read German, I had a guest post on the genesis of that constitutional arrangement on a German blog when the last president was elected two years ago.

I don't object to choosing the president by backroom deals. In fact, considering the person holding the office doesn't matter that much but must seem visibly distant from political conflicts the moment they are elected, this most quiet method of selection is highly desirable.  And having that deal followed by a highly formal election ceremony is probably good for such an intensely symbolical office.

What I do dislike about this system is the low majority requirement. On the first two ballots a candidate needs a majority to be elected. If the first two ballots are unsuccessful,  a plurality suffices on the third one. Mostly this means a partisan backroom deal is sufficient. I would like to raise that to 2/3, so as to necessitate  involvement of minority parties. By making it a matter requiring  fairly broad agreement, I would hope to avoid some of the undignified partisan maneuvering that precedes most Federal Conventions.

Of course if the election required a super-majority there would need to be a plan for situations where it isn't achieved. And that plan would have to be sufficiently deterrent to avoid triggering it on purpose. I'll admit some attraction to the medieval solution of starving  the convention until they agree, but that probably would go too far. Perhaps a miselection could simply trigger a new convention.  I gather that is how modern-day American mistrials by jury are dealt with. Or maybe the delegates could face a monetary fine for reaching later ballots with lower majority requirements.

Practically speaking, it's of course moot, because nobody is interested in following my constitutional advice.

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