The Election of 1912 and the Debate over Antitrust Policy

Since the initial initial passage of the Sherman Act in 1890, the antitrust laws have been the subject of great debate among lawyers, economists, and judges. Little interest, however, has been shown by the popular media in this debate over the years.  Stories tend to focus only on particular cases, rather than on broader issues of policy. This was not the case, however, during the presidential election of 1912, when the candidates presented different approaches regarding how the antitrust law should be enforced, and whether new legislation was required.

There were four major candidates for president in 1912. William Howard Taft, the incumbent president, was the Republican nominee. Theodore Roosevelt, the former president, became the candidate of the newly-formed Progressive (“Bull Moose”) Party, after he was denied the Republican nomination in what appeared to be a rigged convention. Woodrow Wilson, who had served as governor of New Jersey and as president of Princeton University, won the nomination of the Democrats. Eugene Debs, the firebrand labor leader, was once again the nominee of the Socialist Party.

Wilson was elected president, winning 43 percent of the popular vote, and carrying 40 states. He won, at least in part, because Taft and Roosevelt split the traditional Republican vote. The incumbent Taft won 23 percent of the popular vote, but carried only two states. Roosevelt won six states, and 27 percent of the vote. Debs accounted for most of the remaining seven percent.

In the campaign, the four major candidates presented four different views on antitrust.


Roosevelt distinguished between “good” and “bad” trusts, and did not believe that all large corporations should be broken up. He explained that “The corporations against which we had proceeded had sinned, not merely by being big (which we did not regard as in itself a sin), but by being guilty of unfair practices toward their competitors, and by procuring advantages from the railways.” He directed his animus against what he called “malefactors of great wealth,” writing that “When I took the presidency, it was a common and bitter saying that a big man, a rich man, could not be put in jail. We put many big and rich men in jail.”

Roosevelt believed that the antitrust laws were ineffective to restrain corporate abuses. As such, he argued for “thoroughgoing administrative control by the government,” which would exercise “a steady expert control” over corporations because large corporations required “close and jealous supervision.” He therefore supported the establishment of a commission “covering the whole field of interstate business, exclusive of transportation.”

Despite his reservations about the efficacy of the then-existing antitrust laws, the Roosevelt Administration filed numerous antitrust lawsuits. The most notable was the Northern Securities case, in which the Supreme Court found, by a five-to-four vote, that the formation of a holding company combining several railroads into one integrated operation in 17 states was an illegal combination because the holding company stock “was acquired and held to be used in suppressing competition between those companies. It came into existence only for that purpose.”


William Howard Taft was a lawyer strongly committed to the rule of law. He had served as a judge on the Sixth Circuit Court of Appeals, and would go on after his presidency to become Chief Justice of United States. He was the only person to serve as both president and chief justice, and was a strong defender of the judiciary, which Roosevelt had attacked in his campaign as “the agents of reaction.”

Taft believed that the dictates of the law should be clear and certain. He stated that American business should be assured “of that measure of stability and certainty in respect to those things that may be done and those that are prohibited which is essential to the life and growth of all business.”

In the area of antitrust law, Taft believed in strong enforcement of the existing law. In fact, his administration filed approximately twice the number of antitrust prosecutions in four years than Roosevelt did in seven. He felt that the trusts stifled competition by allowing “the aggregation of wealth in plants so great the owners of it were able, by cunningly devised means, to stifle compensation, to control prices of goods and shove them up above what the costs of production would justify.”

While he agreed with Roosevelt that the size of a corporation was not determinative — that “big” was not necessarily “bad” — he disagreed that the law could lawfully distinguish between “good” and “bad” trusts. As such, his administration filed an antitrust lawsuit against United States Steel, a mammoth corporation which Roosevelt had determined to be a “good” trust.

Taft was originally opposed to the concept of interpreting the Sherman Act under a so-called “rule of reason” approach, since the statutory language did not support such an interpretation. Nevertheless, after the Supreme Court chose to follow that approach in the Standard Oil case, he declared that while the court “did not take exactly the line of distinction I have drawn,… it certainly approximates it.”


Wilson believed in a legislative solution to the trusts problem. He sought to restructure competition by imposing rules of engagement, calling for “The destruction of monopoly not by regulation, but by the enactment of specific legislation.” These were enacted after Wilson’s election as the Clayton Act and the Federal Trade Commission Act. The Clayton act prohibited certain practices thought to be anticompetitive, including price discrimination, mergers that substantially lessened competition, interlocking directorates, and tying arrangements, under which one product was only sold in combination with another, less desirable, one. The Federal Trade Commission was empowered to seek out other, unspecified “unfair methods of competition,” and was empowered to issue cease-and-desist orders.

These legislative approaches reflected the Progressive Era system of imposing structure and order everywhere, with the government serving as a watchmaker deity over society.


The Socialist Party candidate, Eugene Debs, took the most radical approach of all the candidates. He sought no less than “mastery and control of industry.” He favored the approach taken in the Populist Party Platform of the 1890s, which called for nationalization of key industries, including transportation, communications, and banking.

Where We Are Now:

Today the rule of reason approach continues generally to be the polestar in antitrust litigation. Initially, after the Standard Oil decision, the courts differentiated between restraints that were judged under the rule of reason, and others that were deemed to be so pernicious as to be labeled “per se” violations of the Sherman Act. These per se violations included price-fixing and division of territories between competitors. In the era after World War II until the mid-1970s, the Supreme Court broadened this per se approach, following a populist consumer impact model that resulted in protecting small competitors and consumer interests rather than competition itself. That model was largely abandoned starting with the 1977 opinion in Continental T.V. Inc. v. GTE Sylvania, Inc., in favor of an expanded rule-of-reason inquiry using economic analysis in place of a consumer impact model. This reflected the influence of the Chicago school of economics, supported on the Supreme Court by Justices Lewis Powell, a former president of the American Bar Association, and John Paul Stevens, a former antitrust lawyer from Chicago. Today, most restraints are judged under a rule-of-reason approach that asks whether a restraint promotes or suppresses competition. The Supreme Court has explained that this rule-of-reason approach requires a court to decide “whether the questioned practice imposes an unreasonable restraint on competition, taking account a variety of factors, including specific information about the relevant business, its condition before and after the restraint was imposed, and the restraint’s history, nature, and effect.” Nevertheless, some per se rules still apply, especially in the areas of price fixing and territorial allocations.

By permitting businesses to justify many types of restraints, and by elevating economic analysis over populist ideals of preserving small producers and competitors, this approach continues a history tracing back to the Marshall Court of the Supreme Court’s protection of business against overregulation, a history which has been interrupted only briefly in the later New Deal years. Nevertheless, particularly with the emergence of giant corporations such as Amazon and Google swallowing up other businesses in different areas of the economy, and healthcare companies acquiring or being acquired by businesses in related areas of the economy, there are several voices seeking to cut back on a purely economic analysis, and calling for greater regulation of these large corporations, together with some calling for expanding the reach of the antitrust laws. In some ways, therefore, the ghost of Theodore Roosevelt rises again, in his call for a commission which would regulate virtually all large corporations operating in interstate commerce.

For Further Reading:

I discuss the Election of 1912 and the approaches taken by Roosevelt, Taft, Wilson, and Debs on antitrust issues in more detail in Chapter 4 of my book, Politics and American Business: The Growth of Industrial America, 1860-1960 (2016). In addition, the Supreme Court cases from this and later time periods are analyzed in my book, Shaping America: The Supreme Court and American Society (2009), at 93-100.

Case Citations:

Northern Securities Co. v. United States, 193 U.S. 197 (1904).

Standard Oil Co. v. United States, 221 U.S. 1 (1911).

United States v. United States Steel Corp., 251 U.S. 417 (1920).

Continental T.V. Inc. v. GTE Sylvania, Inc., 433 U.S. 36 (1977).

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Beyond Evidence: The Many Contributions of John Henry Wigmore

John Henry Wigmore (1863-1943) was a giant of American law. While most think of him only as the author of his massive treatise, Law of Evidence (1st ed. 1904-05), his impressive career touched on many other areas. His life is the subject of an excellent book by Andrew Porwancher, John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law (University of Missouri Press, 2016), on which I have heavily relied in this post.

Wigmore’s Life and Achievements

Born in San Francisco in the middle of the American Civil War, Wigmore went East and graduated first from Harvard College and then from Harvard Law School, where he  was one of the founders of the Harvard Law Review.

After a brief period of private practice in Boston, Wigmore spent three years in Japan as the first professor of American law at Keio University, where he began a lifelong interest in comparative law. He also played shortstop on what was the first baseball team in Toyko.

Wigmore returned to the United States in 1893, assuming a position as a faculty member of the Northwestern University School of Law. He became Dean of that institution in 1901, and served in that position until 1929. In his early years at Northwestern, he was recognized as a leading national expert on the law  of torts. During his tenure as dean, he also modernized the curriculum, raised money to construct a new law school building, and expanded the international law holdings of the law library. Although he retired from the faculty in 1934, he continued teaching as the emeritus dean.

Wigmore also served in the U.S. Army during World War I, performing special assignments and working for the provost marshall general and the judge advocate general. One such assignment involved a survey of the country’s need for manpower. He left the Army with the rank of Colonel.

Wigmore was a prolific author. In addition to three editions of his evidence treatise, he wrote 46 books, was the editor on 38 others, and contributed to nine books on Japanese law. He continued his interest in comparative law throughout his life, and was named to be the first chairman of the American Bar Association Section on International and Comparative law. Wigmore either spoke or could read in twelve languages, including Arabic and Japanese.

Wigmore was also active in other aspects of the work of the American Bar Association, and assisted in the founding of the Section on Legal Education. He ultimately was honored by the award of the ABA medal for a lifetime of service to the legal profession in 1932.

Wigmore was often consulted by those in high positions. For example, he served as a adviser to President Franklin Roosevelt on air travel law.

He died in 1943 in a tragic automobile accident when the taxicab he was in collided with a car. He was then 80 years old, and still a prolific contributor to many fields of the law.

Wigmore on Evidence

Wigmore’s massive Law of Evidence is well known even today, some 114 years after its original publication. It is still cited, and relied upon popularly as “Wigmore on Evidence,” and is considered a foundational text of American law. Citations to it abound in judicial opinions, scholarly articles, and numerous other legal publications. Advertisements for the first edition pointed out that the 4,000 page, four volume treatise “cites more than 40,000 cases and contains over 9,000 Statutes, parts of Statutes, and Code Sections.” By the  time of the third and last edition, the treatise had expanded to ten volumes with 85,000 citations. The Harvard Law Review opined that it was more than a restatement of existing law, because “It has created law.” This was because Wigmore commented on many of the cases he cited, and made suggestions for reform.

There were many influences on Wigmore’s work on the law of evidence, beginning with his years in Japan. Andrew Porwancher points out that Wigmore appreciated and incorporated the Japanese “advocacy of judicial discretion” in his treatise. Porwancher quotes Wigmore as stating: “The chief characteristic of Japanese justice as distinguished from our own may be said to be this tendency to consider all the circumstances of individual cases, to confine the relaxation of principles to judicial discretion, to balance the benefits and disadvantages of a given course, not for all time in a fixed rule, but anew in each instance.”

Porwancher contends that Wigmore’s views also paint him as a Progressive/Pragmatist of the early twentieth century, with mentors such as Justice Oliver Wendell Holmes and Harvard Law Professor James Bradley Thayer further and more directly influencing his writings. Indeed, he dedicated the first edition of his treatise to Thayer, whom he described as “the great master.” These American thinkers sought to modernize American law, including the law of evidence, and Wigmore followed their lead, going well beyond them in the field of evidence law.

Wigmore’s treatise reflected several key propositions, most of which can be traced back to early Japanese practices, as well as to similar American Progressive ideas:

First, because of his distrust of the biases of juries, his discussion was limited to evidence offered in jury trials.

Second, and related, he endorsed broad judicial discretion in application of any law of evidence.

Third, he felt that there were no universal rules, but that evidence must be judged on a case-by-case analysis which focused upon the particular conditions presented in the specific case. In this regard, he embraced Holmes’ dictum that “General propositions do not decide concrete cases.” Rules of evidence, in Wigmore’s view, were only flexible guidelines, not Procrustean limitations. He followed a practical approach, not a logical one.

Fourth, he examined the historical record to divine the reasoning underlying specific approaches to evidence, evaluating whether the circumstances then existing justified continuing the approach of the founding era to a changed, modernized society.

Fifth, he often cited literary sources and the Bible in support of his approaches to evidence. Shakespeare and Dickens were two he often cited, and the Bible provided other examples, including Susanna’s trial by the elders, where Daniel argued for interviewing her accusers separately, demonstrating their inconsistent stories, thus exonerating her. (Daniel 13:51-62)


In devoting his life’s work to many varied topics, including not only evidence, but also torts, the history of Japanese law, comparative law, international law, and legal education, Wigmore deserves high recognition as a giant of the American Legal System. His contributions in each of these fields were significant, and few others have approached his productivity.

Additional Reference:

Richard D. Friedman, “Wigmore, John Henry,” in The Yale Biographical Dictionary of American Law (Yale University Press, 2009) (ed., Roger K. Newman)






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Saint John Roberts: Law Student, Priest, Martyr

One of the Forty Saints of England and Wales canonized in 1970 by Pope Paul VI bore the same name as the current Chief Justice of the United States. This earlier John Roberts was a Welshman, born and raised as a Protestant. He studied first at Oxford, but left without a degree to enroll at the Inns of Court to pursue a career in law. While subsequently traveling in Europe, he converted to Catholicism through the influence of one of his traveling companions.

Roberts took his new faith seriously, entering the college in Douai, the study hall of the English martyrs, which enrolled 160 of its seminarians in the scroll of martyred Catholic priests and lay persons executed under the reign of Queen Elizabeth I.

Once again, as had been the case at Oxford, Roberts left Douai before graduation to pursue a vocation with the Benedictine Order. He went to Santiago de Compostela in Spain to complete his studies, and was ordained a priest. After his profession, he left for England at the end of 1602. For the next eight years, Roberts was engaged in a cycle of serving English Catholics, being caught, arrested, sent to prison, or banished to the continent. In all, Roberts was exiled from England four times. After his third banishment, he returned to Douai, where he started a Benedictine house, which later became the Monastery of  St. Gregory in Douai.

After returning to England in 1607, Roberts was caught yet once again, and imprisoned. Keeping his lucky streak alive he escaped, but was recaptured. He was able to avoid execution only through the efforts of the French ambassador, and was banished from England once again.

When he again returned to England he was recaptured, and tried and convicted of the capital crime of ministering as a Catholic priest in England. As with many of the other Catholic martyrs of England and Wales, he was hung drawn and quartered. His execution on December 10, 1610, occurred almost eight years to the day that he first reentered England as a Benedictine Catholic priest. His body was sent to St. Gregory’s Monastery in Douai for burial. He was 35 when he died.

Roberts’ fascinating story has several important lessons. Here are two of them: First, we see the importance of personal witness and friendship in evangelization efforts, for his conversion to the Catholic Faith was a direct result of the example of his unnamed Catholic traveling companion with whom he toured Europe after his time at the Inns of Court. Second, Roberts’ life of service as a priest and his resulting gruesome martyrdom provides another example of the strong faith and fruitful service of Catholic converts.

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Edmund Campion: Priest, Martyr, Historian, Poet, Playwright, Professor

When Pope Paul VI canonized the Forty Martyrs of England and Wales in 1970, one name stood out. That was Edmund Campion, who was an historian, a poet, a playwright, a professor, a priest, a renowned homilist, and a martyr.

Campion was a brilliant orator as a student and teacher at Oxford. Queen Elizabeth observed him in debate when Campion was 26 years old. She was impressed, and marked him as a future leader in the Church of England. Campion became Proctor at Oxford and took Anglican Orders as a deacon, having been raised as a Protestant. He then began to study the Fathers of the Church, and was increasingly drawn to the Catholic Faith.

Campion was invited to come to Ireland to start a college which years later became Trinity College in Dublin. While in Ireland he wrote a history of the country, which is his only surviving work of any length, because his well-regarded and -attended sermons were not recorded. After Elizabeth was excommunicated by Pope Pius V in 1570, and anti-Catholic persecution intensified, he left Ireland for England, and then went to France.

In France, Campion studied at the Catholic Douai College, which later generated the English Douai Bible. Douai prepared mainly English seminarians for the priesthood, and 160 of its graduates were ultimately executed in England for preaching the Catholic Faith. In his biography of Campion, Evelyn Waugh observed that “Martyrdom was in the air at Douai.” Campion was appointed Professor of Rhetoric at Douai, but left after graduation, traveling by foot to Rome to study to become a Jesuit.

Campion was assigned to Prague in his Jesuit formation, and taught several subjects, including rhetoric and philosophy, at the new Jesuit College in that city, which was mainly Protestant at that time. He was ordained a priest in 1578 and remained in education in Prague until 1580. While in that city, he wrote a tragedy based on the life of the Jewish King Saul. After the play’s initial performance, it was encored at the request of the Emperor.

Campion went next to England, traveling for months across Europe on his way, meeting with many influential Catholics, including Cardinal Charles Borromeo, with whom he spent eight days in Milan, Italy. He was sent to England at a time of increasing persecution of Catholics, and published two notable pamphlets. “Campion’s Brag” defended the Catholic religion, while his “Ten Reasons” summarized the failings of all Protestant religions, from Luther, to Calvin, to Zwingly, and to the Church of England. These pamphlets received wide distribution, but were quickly destroyed by English authorities, such that only four copies of the first edition of “Ten Reasons” are still extant.

During his one plus years in England, Campion traveled house to house, saying Masses for Catholic families or their servants, and hearing confessions at night. His sermons were celebrated for their remarkable clarity and insight, and all who heard of his presence flocked to hear him preach. He was ultimately betrayed, found, and arrested after saying Mass at a large gathering. He was paraded to the Tower of London bound on horseback, and was initially imprisoned for four days in a cell too low to permit him to stand erect and too narrow to allow him to lie flat.

Campion was taken before Queen Elizabeth and questioned at length regarding his activities and plans, but was not found to be guilty of any crimes against England or its monarch at that time. He was offered a preference and advancements in the English church if he entered the Protestant ministry. When he refused, he was sent to the Tower of London for four months, and was tortured three times on the rack. Because of his prominence with Catholics and his stellar reputation in defending the Faith, English authorities defamed him by spreading untrue rumors that he had converted to the Church of England, or had committed suicide after confessing to crimes against the state. Despite his weakened state, Campion was transported without prior notice to four separate “Conferences” where Church of England prelates and other Anglican experts forced him to answer thorny theological questions without benefit of preparation or access to books, even including a Bible.

Campion was then tried with several others on trumped-up charges of conspiracy to murder Elizabeth and support a Catholic invasion of England. The defendants were not permitted defense counsel, and Campion acted in their stead to plead their defense. The court record indicates a spirited defense launched by Campion, who debated the prosecutor and pointed out the absence of any evidence to support the spurious charges. Despite Campion’s valiant efforts, all of the defendants were convicted and sentenced to be hung, drawn, and quartered for treason. In his final speech, Campion observed that “In condemning us you condemn all your own ancestors– all the ancient priests, bishops and kings– all that was once the glory of England, the island of saints, and the most devoted child of the See of Peter… God lives; posterity will live; their judgment is not so liable to corruption as that of those who are now going to sentence us to death.”

The sentences of execution imposed on Campion and on his fellow Catholic priests Ralph Sherwin and Alexander Briant were carried out after a grizzly procession to the site of execution at Tyburn on December 1, 1581. Campion was then 41 years old. Witnessing the execution in the front row was Sir Henry Walpole, a lawyer, who was splashed with Campion’s blood. After witnessing these executions, Walpole became a Jesuit priest, and was himself hung, drawn, and quartered 13 years later. He is another one of the Forty Martyrs of England and Wales canonized in 1970.





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Harvey Weinstein, Hollywood, and Christianity

The sexual abuse and exploitation of women actresses by Harvey Weinstein and by many other men in Hollywood has released a outpouring of similar stories targeting other women in both Hollywood and in other, different venues, including academia and corporate America. Stories of such abuse and exploitation are added daily to the #metoo Twitter account and in the daily print and electronic media. Yet these same victims and their media supporters also target Christianity and its values as hateful or illogical, focussing particularly, but not exclusively, on Catholic teachings regarding abortion and homosexuality. In these efforts to demonize Christian religious values, they echo their victimizer Weinstein, who is known for his production of movies attacking and/or ridiculing Christian actors and values. One need only bring to mind Weinstein movies such as Priest, The Butcher Boy, Dogma, Sin City, and Philomena, among others.

What makes the attacks on Christianity by victimized Hollywood actresses and their fellow sufferers illogical is the exalted status Christianity affords to women, forbidding not only adultery, but also any sexual relations outside of marriage, and discouraging or forbidding divorce. Moreover, Christ recognized the equal status of women and had many women followers at a time when women were considered a man’s property who could be divorced at will. Mary, the Mother of God; Mary Magdalen; and Mary, the mother of James, represent just a few of those women who followed Christ. And in the Acts of the Apostles and the Letters of Saint Paul we meet others, including Dorcas (known as Tabitha), Lydia, Phoebe, Lois, and Eunice, and several others named in the Letter to the Romans, 16:1-16.

Roman “civilization” further demeaned women, with rampant extra marital promiscuity and unfaithfulness which the Catholic Church condemned. The Roman leaders responded by characterizing Christianity as a religion for women. In light of this history, even Edward Gibbon, a fierce opponent of Christianity, was required to admit that “The dignity of marriage was restored by the Christians.”

Christianity both exalts and protects women. It  has done so consistently from its beginnings. It is now time for the #metoo victims to embrace its teachings.



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Francis de Sales: Lawyer, Reformer, Saint

Francis de Sales (1567-1622) was one of the leading figures in the Catholic Reformation. In his book, True Reformers: Saints of the Catholic Reformation, on which I have drawn extensively for this post, Jerome Williams characterizes de Sales as “an accomplished and well-rounded Christian humanist scholar,… an intrepid and tireless missionary,…an indefatigable reforming bishop,…a spiritual director and mystical teacher,…founder of a religious order,…and[a pioneer in] a spirituality explicitly aimed at the laity.”

de Sales was the oldest of thirteen children in a well-to-do family. He studied the humanities with the Jesuits in Paris, attaining a master of arts degree. He then went to University of Padua from which he graduated in four years with a doctorate in both civil and canon law. He was prepared for a life in the law, and was so impressive at his examination with the bar examiners that he was offered the office of senator in the Duchy of Savoy. Although his father had built an estate for him, fully equipped with a law library, de Sales chose instead to become a priest. He was ordained in 1593 at the age of 26, and became a priest of the Diocese of Geneva.

Geneva was then heavily Calvinist, and had left the Duchy of Savoy to join the Swiss Confederation. John Calvin outlawed Catholic worship in the region, which had a population of about 50,000, and the historic Catholic population dwindled from many thousands to a few hundred. In 1594, however, Savoy regained part of the region. Francis was sent there to bring the people back to their Catholic faith.

de Sales understood that a major problem which had led to the success of Calvinism in the region was the corruption of the clergy. He spent six months preaching in the region, but with little success. He then turned to writing, which would become perhaps his strongest talent. Indeed, he is today commemorated by the Catholic Church as the Patron Saint of writers.

Appointed Provost of Geneva, de Sales turned his efforts to preparing short publications on Catholic doctrine, “in defense of the Faith of the Church.” He went door-to-door slipping these publications under people’s doors, as well as leaving them in churches and city squares. His friendly and non-confrontational  manner, combined with these publications, resulted in a successful evangelization, through which many fallen-away Catholics returned to the Faith.

Seven years after these efforts, de Sales was named Bishop of Geneva. He made pastoral visits all over the diocese, and instituted the Forty Hours devotion as part of his efforts directed toward the ordinary lay Catholic. He was a popular spiritual director, but extended these individual efforts, again by his writing, with publications aimed at repudiating the notion that only the clergy could become spiritually proficient. As Williams has pointed out, these works were designed “to fuel the aspirations to holiness among those who were not called to consecrated religious life.”

de Sales’ most popular work of this type was the Introduction to the Devout Life, which is still widely circulated today. In this book, de Sales demonstrates a healthy moderation in his recommendations. He counsels that “A continual and moderate sobriety is preferable to violent abstinences, practiced occasionally and mingled with great self-indulgence.” (Part 3, Chapter 19), and he warns that “We must not fret over our own imperfections. Reason requires that we should be sorry when we commit any fault, yet we must refrain from being overcome by anger or developing scruples. These two things keep a raging storm going on in our heart, instead of the peace that Christ gives, and no one can take from us, except Jesus or ourselves.” (Part 3, Chapter 8).

He also wrote a Treatise on the Love of God, another very accessible work which employs hundreds of references to common life with which the laity would be familiar. Indeed, references to animals, birds, bees, fruits, and plant life are common in this work, and are employed to strengthen the doctrinal point being addressed by use of metaphor. For example, de Sales writes that “A falcon with its hood removed will spot its prey and begin to fly in pursuit….In the same way faith removes our hood of ignorance and we can see what is beyond our reach.” (Chapter 2).

Francis had many notable followers, the most prominent of whom was Jane de Chantal, with whom he founded the  Visitation Sisters in 1610. Once again, this congregation aimed at the Catholic laity, enlisting people who did not wish to become members of a contemplative order, but who wished to help the sick and poor in their own homes.

de Sales died in 1622 at the age of 55. He was canonized a saint in 1665, and proclaimed a Doctor of the Church in 1877.

de Sales teaches today’s would-be evangelizers two critical lessons. First, clear and concise written works are enormously helpful in teaching the Faith and effecting conversions. Second, a pleasant personality which treats the prospective convert with respect and love is more effective than fire and brimstone preaching. Thomas Merton and Bishop Fulton Sheen did both of these in the twentieth century; Bishop Robert Barron does so today. May their tribe increase!


Francis de Sales, Introduction To A Devout Life (adapted by Sister Halcon J. Fisk) (Catholic Book Publishing C0rp., 2013).

Francis de Sales, Treatise on the Love of God. Excerpts are contained in Three Ways of Loving God (Paraclete Press, 2014), at 87-145.

Jerome Williams, True Reformers: Saints of the Catholic Reformation (Augustine Institute, 2017)

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Are Europe’s Leaders the New Gnostics?

The Gnostic heresy has had a long life, reappearing throughout the ages in many forms. The early Church experienced the original Gnostics, St. Augustine spent many years following the Manichaeans, the Dominicans fought the Cathars, and the 20th century experienced Father Divine, Jim Jones and the People’s Temple, and Heaven’s Gate. While each of these movements differed in some respects, they all shared elements of Gnosticism.

The Gnostic heresy in its fullest form posits two deities, a good god and a bad god. The good god is found in the spirit, while the bad god rules the body. To attain salvation, the gnostic must escape the body, even to the extent of committing suicide. Sex is to be avoided, and procreation is seen as a serious failure, condemning a new life to the whims of the body and to the rule of the bad god.

While the European leaders are not pure gnostics, many of them do share one striking similarity with that heresy: they are childless. These childless leaders include the heads of Germany, France, Britain, Italy,  Scotland, Holland, and Luxembourg, as well as the head of the European Commission.

The gnostic choice not to reproduce has important consequences, particularly when that choice is made by leaders of a country. A German philosopher, Rudiger Safranski, has observed of the European leaders that “for the childless, thinking in terms of the generations to come loses relevance. Therefore, they behave more and more as if they were the last and see themselves as standing at the end of the chain.”

Such a view has important real world consequences. As European society becomes more and more childless, the future is handed over to those who choose to have children. Germany provides a stark example. It now has the lowest child birth rate of any country in the world, recently overtaking Japan for that dubious honor. Following their leader’s example, 30% of German women are childless, with university graduates in that country nearing a 40% childless rate.

This mortgages Germany’s future to the Moslem immigrants who have come into the country and have chosen to have children. It also threatens the already declining practice of Christianity in that country and in most of Europe. Indeed, it is estimated that 25% of all European women will remain childless.

The choice to remain childless also encourages acting without regard to future generations in order to maximize current pleasures. Unlike the pure Gnosticism of the past, this new Gnosticism in Europe encourages nontraditional sexual relationships, including same-sex marriage and support for transgenderism. It also supports a banning of any presence of religion in the public square, and a more generalized demonization of traditional religion and those who practice it.

Hilaire Belloc once said that “Europe is the Faith and Faith is Europe.” That observation has become increasingly archaic.




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The Erosion of Tradition

Tradition is very much under attack today throughout the West, often being characterized as “the dead hand of the past.” This misguided view ignores centuries of learning. In his famous book, Orthodoxy, for example, G.K. Chesterton called tradition “the democracy of the dead,” contending that it was obvious that “tradition is only democracy extended through time.” Similarly, in his poem, “A Prayer for My Daughter,” the Pulitzer Prize winning Irish poet, William Butler Yeats asked “How but in custom and in ceremony/Are innocence and beauty born?”

Christianity has been an important part of the Western tradition, with Hilaire Belloc memorably observing that “Europe is the Faith, and the Faith is Europe.” Today in Europe, however, the Christian Faith is progressively being marginalized. The European Union has repeatedly declined to acknowledge the Christian herritage underlying European civilization, and it has increasingly called for the removal of Christian images from the public square. In one recent example, Slovenia was ordered to remove halos and crosses from a commemorative coin featuring the images of Saints Cyril and Methodius, the Apostles to the Slavs. One archbishop commenting on this order complained that “There is a movement in the European Union that wants total religious neutrality and can’t accept our Christian traditions.”

Even in the United States, Christianity is under heavy pressure, particularly as it relates to recognition of same-sex marriage and transgenderism. Christian believers who have refused to accommodate the dictates of same-sex customers where they conflict with the believers’ faith have been sued, fined, and have even suffered a revocation of their business licenses or privileges, sometimes even being required to undergo retraining aimed at changing their religious beliefs or practices.

These American efforts to marginalize Christianity have been assisted in many ways by corporations and sports teams which boycott states which oppose accommodations inconsistent with religious beliefs to same-sex marriage or transgender individuals. The print and electronic media have supported these and other efforts to penalize religious believers who do not adhere to the media’s editorial beliefs and agendas.

On yet another front, American universities have increasingly dropped their introductory American history courses altogether, as well as often limiting courses which are being offered on the American Revolution or the Constitution to history majors or to graduate students. Whether or not they are designed to do so, such efforts leave their students generally ignorant of American customs and traditions, particularly as they relate to the free exercise of religion guaranteed by the First Amendment.

The strong protections afforded to free exercise of religion by that amendment have also been questioned by many academics and law professors, as well as by media editorial writers. They argue, contrary to the plain language of the Constitution, that free exercise is limited to what takes place within a designated religious structure as worship, and must be prohibited outside those four walls.

Conservatives and others who believe in the value of tradition must speak up, as the hour is already growing very late, and perhaps too late for Europe. Adherents to tradition must take to social media, publish books, write articles, and pressure corporations, sports teams, and universities to preserve and teach tradition and to protect religious believers in the practice of their religions. Silence here is suicidal and, as the law teaches, implies consent to the present, unhappy situation.


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Masterpiece Cakeshop: Crafting a Minimalist Decision

The Masterpiece Cakeshop case presents issues of free speech and free exercise of religion which are important, controversial, and divisive. Almost any decision on these issues will result in a public and academic outcry by whichever side fails to prevail. The court should therefore consider crafting a narrow opinion which will garner the greatest number of justices who will join it.

The Roberts Court has a significant history of avoiding these problems by delivering carefully limited decisions. To take just one example, in Northwest Austin Municipal Utility District v. Holder (2009), a decision on the constitutionality of one part of the Voting Rights Act of 1965, the court interpreted the preclearance provision at issue not to apply to the entity challenging the constitutionality of the Act, thereby inviting Congress to legislate a new coverage formula. More recently, in Trump v. International Refugee Assistance Project (2017), the court granted a stay of injunctions issued by lower courts against the Trump Administration’s Executive Order on immigration without addressing the anti-Muslim bias claims which lay at the heart of the lower court decisions, and without deciding whether the Trump Administration had made a showing of likelihood of success on the merits. Given the fact that the Executive Order at issue may expire before the court hears the case on the merits, this approach avoided deciding a controversial issue regarding executive power in the context of a claim of religious discrimination.

A final recent example is the court’s decision in Trinity Lutheran  Church v. Comer (2017), where it ruled that Missouri could not discriminate against a church, because of its status as a religious institution, by disqualifying it from participating in a scrap tire program to resurface playgrounds. The court majority carefully avoided deciding, or even discussing, claims that the authority relied upon to disqualify the church was a so-called “Blaine Amendment,” which four members of the court had previously held was the product of religious bias against Roman Catholics.

The court should adopt a similar approach in Masterpiece Cakeshop. Here are some steps to do so.

  1. Limit any decision to the compelled speech issue. The briefs in the case raise First Amendment issues under both the free speech and free exercise of religion clauses. Free exercise claims have often resulted in sharply divided courts, with strongly worded dissents. In these cases, it has often been difficult to get a fifth vote in support of an opinion of a court. By contrast, the free speech decisions of the Roberts Court have been nearly unanimous.
  2. Find that the “cake artist” is engaged in speech.  Jack Phillips, the owner of Masterpiece Cakeshop, has a good case here. His appellate attorneys rely upon the following facts, among others: Mr. Phillips’ shop has a logo displaying an artistic palate with a paintbrush and whisk; it displays a drawing of the owner sketching himself inside the shop; Phillips uses artistic skills in creating cakes; he designs each wedding cake individually with meetings with the couples; and he markets himself as a “cake artist.” In addition, he utilizes artistic talents such as sketching; he designs ornamental features; and he decorates his cakes using painting, airbrushing, and sculpting techniques. Since courts have previously recognized such persons as tattooists as artists, characterizing Phillips as such should command a majority of the court.
  3. Limit the artist holding. The court should rely heavily upon the facts just enumerated regarding Mr. Phillips. It should not, for example, attempt to define just exactly who would qualify as an artist under the Free Speech Clause, nor volunteer any opinion on off-the-shelf merchandise. This was the approach followed in the Hobby Lobby case (Burwell v. Hobby Lobby (2014), where the court limited its holding to closely held corporate entities, and did not express any opinion regarding publicly held corporations.
  4. Do not contest Phillips’ beliefs.  In ruling against Philips, the Colorado courts rejected his contention that designing a cake for a same-sex wedding would suggest his support of such unions. Those courts adopted a “reasonable observer” approach, contending that such a hypothetical observer (in Colorado? in other states?) would not see making a cake as endorsing the marriage, and that Phillips therefore was not being compelled to speak in favor of same-sex marriage. This runs contrary to the approach taken by the court in its RFRA decisions. In both Burwell v. Hobby Lobby, and Holt v. Hobbs (2015), the court emphasized the need to look at the particular claimant before the court, and held that the protections of the statute were “not limited to beliefs which are shared by all of the members of a religious sect.” While RFRA cases are not constitutional decisions, there is no compelling basis to use a different standard in free speech cases.
  5. Compare the harms to those presented in free speech cases.  To the extent that Masterpiece Cakeshop is decided on free speech grounds, a strong case can be made that the dignitary and psychic harms caused to the same-sex couple by Phillip’s refusal to design a cake for their wedding are no greater than those found not to be protected against governmental action in other cases. To take just one example, the recent decision in Matal v. Tam (2017) found it unconstitutional to deny trademark registration to the name, “The Slants,” even though the Patent and Trademark Office had explicitly found that “there is…a substantial composite of persons who find the term in the applied-for mark offensive.” This was because it was associated with a negative view of Asian-Americans, as other terms are used to disparage those of African, Italian, and Irish ancestry.
  6. Let the free exercise claims develop further in the lower courts.  The issues raised by the free exercise claims in Masterpiece Cakeshop and several other cases involving such art forms as photography, as well as those involving non-artistic claims, are controversial and divisive. As such, the court should steer away from making a premature adjudication before the issues are developed further in the lower courts. Failure to do so would expose the court to the criticism that it foreclosed and froze additional consideration of these important issues which might work to reach an acceptable compromise. This is the same criticism often leveled at the court for its decisions finding a constitutional right to abortion (Roe v. Wade (1973)), and to same-sex marriage (Obergefell v. Hodges (2015).)

The Masterpiece Cakeshop case will be an important first step in resolving the contentious and divisive issues posed by a conflict between constitutional protections accorded by the First Amendment and statutory prohibitions against same-sex discrimination. In taking that first step, the court should tread lightly.


Yet another path to a minimalist decision, and one which might possibly secure a fifth vote for the cake designer, would be to rely upon an equal protection argument. The case record indicates that the Colorado Civil Rights Commission in three other cases found no discrimination where other cake makers refused to create custom cakes for Christians who wished to use the cakes to criticize same-sex marriage and relationships. Such an equal protection approach mirrors that taken by Justice O’Connor in her concurring opinion in Lawrence v. Texas (2003). There, Justice O’Connor voted to strike down criminal penalties for engaging in sodomy because the Texas law at issue only criminalized sodomy between same-sex partners.

See also Attorney General Sessions, Federal Law Protections for Religious Liberty, page 3, item 7 (October 6, 2017) (“Government may not target religious individuals or entities through discriminatory enforcement of neutral, general applicable laws.”)

SECOND UPDATE (12/5/17):

At the oral argument held today, there were some hints that, if the cake designer wins, he will do so somewhat on the minimalist lines suggested above.

First, Justice Alito specifically raised the disparate treatment issue pointed out in the Update above, where the Colorado Commission found it not to be discrimination where customers who requested cakes that expressed opposition to same-sex marriage were declined service. (Oral Argument Transcript at 58-59)

Second, Justice Kennedy, who is clearly the swing vote, employed some very strong language to accuse the Colorado Commission of hostility to religion. He stated that “tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs. And — because accommodation is, quite possible, we assume there were other shops that — other good bakery shops that were available.” ( Tr. at 62) He also focused on a remark by one of the commission members, who stated that “freedom of religion used to justify discrimination is a despicable piece of rhetoric.” (Tr. at 51) Justice Gorsuch additionally pointed out that a second commissioner,  on a commission of seven individuals, stated that “if someone has an issue with the laws impacting his personal belief system, he has to look at compromising that belief system.” (Tr. at 55)

Edward Mannino is a lawyer and historian. He is the author of Shaping America: The Supreme Court and American Society (University of South Carolina Press, 2009) and The Roberts Court and Terrorism; A Citizen’s Guide (Kindle Ebook, 2016).

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“Men Without Chests”: A Tragic Consequence of Opioid Addiction

Opioid addiction has become a major health epidemic in the United States, and the issue has emerged as an important political one. It surfaced quite early in the 2016 presidential campaign, when Donald Trump made some strong comments on the devastating impact opioid addiction had on New Hampshire, the state which conducted the earliest presidential primary.

In the lead article in the Autumn 2017 issue of The American Scholar, David Brown, who is both a physician and a journalist, supplies alarming statistics on just how serious a societal problem opioid addiction has become. He concludes that this epidemic has created a “new underclass, mostly white,” which “is stymied by economic obsolescence, a sense of victimhood, and an exaggerated view of its own physical damage.” This new underclass is particularly represented in white males aged 25 to 54.

In support of his argument, Brown cites a presentation made to the Federal Reserve Bank of Boston by Alan Krueger, a Princeton economist, in 2016. Krueger concluded that of the males in this age group, “about 12 percent… are not even looking for work: 43 percent of those in prime age describe their health as fair or poor, 44 percent take painkilling drugs on any given day, and 40 percent say that pain prevents them from taking a job for which they qualify.” This age group is the nucleus of our workforce but, in Brown’s words, “Today, millions of these men are living passive, depressed, bored, and isolated lives. For many, chronic pain is how they announce their status to the world.” They have become, in G.K. Chesterton’s memorable phrase, “men without chests.” They spend 30 percent of their time alone, and many of these men are on long term disability. Brown reports that “only one in 25 disabled workers receives benefits because of an actual injury, while three times as many attribute their disability to a mood disorder, such as depression.”

In Brown’s analysis, much of the opioid epidemic can be traced to physicians too easily satisfying a patient’s insistence upon receiving opioid medications, and renewing them regularly when any need for them has long since passed. This permits chronic pain to become “an identity as much as…a sensation.” In what will undoubtedly become a politically unpopular conclusion, Brown states that “depression and anxiety about unpleasant sensations (‘catastrophizing’) make pain worse. Acceptance of pain, on the other hand, makes it more tolerable.” In addition, “The road from prescription narcotics to heroin addiction is now wide and well-traveled. Doctors need to do everything they can to keep their patients off it. The first step is to say no.”

These statistics validate Chesterton’s observation that “We make men without chests and expect from them virtue and enterprise.” The Abolition of Man (1943).


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