Roland Burris and St. Augustine (Stanley Fish / NYT)

[struggle4progress]

January 8, 2009, 10:00 pm

... 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” ...

http://fish.blogs.nytimes.com/2009/01/08/roland-burris-and-st-augustine/?ref=opinion

[DemBones DemBones]

1. Fish begins with a false premise:

"Can apparently settled decisions be undone in a second when evidence of venality is uncovered?"

The venality of the governor of Illinois was uncovered before the appointment of Burris was a settled decision.

St. Augustine would have seen this in a flash and told Fish he was really reaching to try to equate Blagovich's situation to what Augustine said about priestly authority.

[muriel_volestrangler]

2. A question: if everyone had refused to be appointed by Blagojevich

how long would the wait have been until someone else became the governor, and an appointment could be made? Would it be when he had been convicted in his impeachment (when Burris was apointed, impeachment hadn't been started, so Burris wouldn't have known if that would ever happen); or would it have been after his trial was finished - possibly a year or more from now, knowing the speed of the courts?

If Burris could reasonably say "if I don't accept the appointment, then they'll be no junior senator for a year or more", does that mean he can say "you'll just have to assume B. is innocent, as the law system says anyway, and agree with my appointment" ?

[DemBones DemBones]

3. I'm not offering an opinion on what should be done

in this case, merely pointing out that Fish proceeded from a false premise and roped in St. Augustine under false premises.

[muriel_volestrangler]

4. But we don't know yet there was venality in the appointment of Burris

and that's part of Fish's point - can you say that any wrongdoing in someone's life, at any time, taints all their subsequent decisions? Blog. isn't yet convicted of anything. If you say "we must wait until he's convicted" then the appointment could be delayed a long time. If someone else is appointed by someone else, and then Blog. gets off, then that person will have been improperly appointed.

So the question of "can we undo decisions when venality is found" does arise, I think.

[Jim__]

5. I disagree.

Fish's main point is:

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.

In this case, authority is conferred by the right credentials. Blagojevich has the right credentials. If people don't like Blagojevich still having the ability to make the appointment, then they should amend their procedures so that in the future, another governor in this position would not be credentialed.