Big time link:

I must thank Andrew Sullivan for the big-time link on the Shepard case.

I got more email on that than anything I've posted before. Here are some excerpts:

You seem to know a great deal about what was going through McKinney's mind. "Uncontrollable rage"? How about "uncontrolled"? How do you know that McKinney "just lost it"? Maybe he thought "I'd better kill this guy so he won't testify against me." As for "preexisting anger problems," don't we all have them?...

Interesting post. But must express some puzzlement at your conclusion that Laird opinion was astonishing. Shackling a defendant in front of a jury---okay, I'm not a criminal lawyer and I don't know what the standard is, but still---is a pretty clear indication that the judge and bailiff think the guy's guilty. Process is important, yada yada yada....

Hate crime laws are not going away and therefore need to be applied fairly. Getting to the bottom of every story is essential to this fairness. But please, this framing of the meth-head story is beginning to sound like the Dan White Twinky defense....

McKinney probably got excited about the thought of sex with Mathew and wasn't trying to kill Mathew as much as kill the thought inside himself. It wasn't a hate crime because Mathew was coming on to him and he was revolted by the idea as much as it was a hate crime against a part of himself by sacrificing another person....

I missed 20/20's show. However, one thing I wanted to ask about your commentary regards the targeting of Shepard. My recollection is that he was a pretty tiny guy -- 105 to 110 pounds. Could that have been a factor if the intent was to overwhelm someone during a robbery? I know you can't literally answer that, but was any reference made to his size on 20/20?...

Great point about Anthony Milano, but I think the rest of your take is slightly off base. The Shepard murder is actually quite consistent with the patters established in ones that came before and after....

I'm female. I've never had the freedom to go home instantly with whomever I meet. Not because it was socially frowned upon, but because I knew that there was a not so remote possibility that I was going home with a psycho and could get knifed. I still wish I'd had the freedom from rational fear that would have allowed me to go with the cute guy in Hawaii who stood up in his sports car in the middle of the traffic jam and asked me to go out with him as I walked down the street. But I was 18, alone and female. Maybe if we'd both had groups of friends. Young girls get propositioned constantly. Most of the time you don't want the guy, but....

Here is a longer excerpt:

I do not understand how you can feel singling out an individual based on their race, sexual orientation, etc, and murdering them is the same as murdering a random person. Yes, the end result is the same; however, the points leading up to it are not. The person who knowingly selects a homosexual and kills them due to their own homophobia should have their circumstance labeled as a hate crime. This is good for America too! It educates the general public! It teaches them hate doesn’t pay. There is a larger picture here and I think you, Jonathan, are missing it.

Also, hate crime bills allow for Federal investigations into possible hate crimes. Punishments don’t change but investigative help on the federal level does change. Considering many hate crimes happen in rural areas where the local police themselves are homophobic, don’t you think it necessary for hate crime legislation?

If we followed your line of thinking when it comes to hate crimes, then we would also not differentiate between rape and child molesting. What are your thoughts on that?

Jonathan, I appreciate your opinions and your willingness to share them. On this issue, however, I feel you are ill advised or simply trying to raise awareness of yourself by diverting a popular consensus in the gay community. Hate Crime Legislation is not a special right for gays or other races; it is a necessary piece of legislation to cut down the number of crimes that are motivated out of hate.

Medical Marijuana Case:

Of course, like all of the other libertarian bloggers, I think Randy Barnett is a saint for his work, fighting on behalf of medical marijuana. Let me try to make a few points on the future Court decision, that perhaps not yet have been raised by others.

We all know that the liberals who may be amenable to the social policy of letting sick patients smoke marijuana (Souter, Stevens, Ginsburg, and Breyer) do not, based on their past dissents in Lopez and Morrison, support the rationale that underlies Barnett's argument—that Congress exceeded its commerce power (they believe Congress has virtually unlimited Commerce Power).

Also, the social cons—Rehnquist, Scalia, and Thomas—who support the more limited reading of the commerce clause, may balk when using this theory to support an illegal drug.

Has anyone mentioned the fact that this issue may be different for Rehnquist, now that he is going through the excruciating cancer treatments, that he may be far more sympathetic to those who wish to use anything they can, anything they think has the remotest chance of working, to treat those horrific symptoms?

I predict Thomas will vote to strike down the law. He is a consistent, principled, jurist. And based on his dissent in Lopez, he believes in a super-stripped down version of the Commerce Clause; there is no way Thomas believes that Congress has within its commerce power, the power to prevent individuals from using or cultivating marijuana in non-commercial circumstances.

Kennedy, who has strong libertarian tendencies, may surprise us with a very anti-libertarian position; I have heard him, in the past, speak on the drug issue and he sounded like an anti-drug reactionary (sounded like he bought—hook, line and sinker—into anti-drug hysteria).

Finally, imagine—a strong possibility, I think—a Court opinion striking down the law as unconstitutional, but with a plurality opinion that leaves no majority constitutional rationale for the decisions. For instance, a minority of the conservatives—say Rehnquist, Thomas, and O’Connor—striking down the law based on Congress’s lack of Commerce Power, joined by a few of the liberals who find some other basis for why the law is unconstitutional (privacy?).

More than meets the eye:

Well it looks like there might be more than meets the eye to the Mathew Shepard case. This shouldn’t surprise us; life, more often than not, is complicated. A recent special on 20/20 casts doubt on whether Shepard was murdered solely, or even primarily, because he was gay. The two murderers now explicitly deny it. I don’t believe them entirely. But it’s possible that the murder primarily was a drug induced robbery, with some very important incidental homophobic hostility contributing to the savageness of the attack.

So what did the 20/20 special argue?

1) that the two perps planned on robbing someone that night;
a) they picked Shepard as their target;
b) they targeted Shepard, not because he was gay, but because they thought Shepard had money as a result of being a drug dealer;

2) that Shepard, like at least one of the two perps, had a crystal meth problem;

3) that the crystal meth addicted perp knew Shepard from the local drug scene;

4) that the perps planned to induce Shepard into the robbery with the idea of a trade of sex for meth;

5) once Shepard initiated sexual contact, the beating and the robbing began;

6) in the process of beating/robbing Shepard, Aaron McKinney, flew into an uncontrollable rage, not necessarily because Shepard was gay, but because he had preexisting anger problems, combined with the fact that he was strung out on crystal meth, combined with the excitement of the circumstance. McKinney just lost it and beat Shepard to death. To prove that it was a meth induced raged, and not homophobia, it was noted that on the way home, McKinney encountered another group of thugs, vandalizing neighborhood property, and McKinney accosted and severely beat one of them (with the butt of his pistol, the same way he beat Shepard). McKinney struck the thug so hard that he fractured his skull. Another thug then struck McKinney with a baseball bat. The police then became aware of the ruckus, and discovered the evidence that lead to the discovery of Shepard.

So how did the whole “hate-crime” story emerge? Well it was more than the fact that Shepard was gay and the perps were straight. It was an odd series of events, the strange sort of “coincidences” that make for interesting fiction—stories, TV plots, movies, etc. One of the perp’s girlfriends supposedly made up the story about them wanting to “teach a gay guy a lesson, not to hit on straights,” because she (mistakenly) thought that this might help him! That it would engender sympathy! She now changes her story and says she made the whole thing up. Then, in attempting to come forth with a defense, one of the attorneys constructed the “gay panic” defense—again because he thought it would be helpful, that it was the best he could do. In other words, unaware of what would become a national event, it was thought that a gay-bashing brought on by the victim’s advances would make the perps more sympathetic than a planned robbery that lead to a murder.

Something else was brought up—the fact that McKinney, the main aggressor, may have experimented with homosexual behavior himself. He was labeled a “bisexual” and the inference that was drawn was that he couldn’t be homophobic if he himself was bi.

A couple of things need to be said about this. I’ve blogged about this misunderstanding before. McKinney denied having homosexual experiences (what would you expect); but even if it were true, that does not earn him the label of “bisexual” anymore than for a gay guy who performs sexually with a woman (many can) earns him the label, “bisexual.” A bisexual is someone who has roughly a full-and-even attraction to both sexes, or at least something close it. They are relatively rare. And there is no evidence that McKinney fits that definition. If rather we are talking about a person who is predominantly heterosexually oriented, who can flourish only, in the long run, heterosexually, but nonetheless is able to enjoy (to *some* extent) homosexual behavior and/or has experimented with it, then 1) we are talking about a huge percentage of the population (and the flipside is also true of homosexually oriented people)—I’d argue at least 1/3, perhaps, over 50%; and 2) as we know, such a huge percentage of the population does not consider itself “bisexual,” nor should it (even if it has *some* degree of bisexuality).

Moreover, there are plenty of rough-heterosexually oriented thugs, in prisons, in the Arab world, in the Latin American world, who have had homosexual experiences, but are gay bashers nonetheless. So the whole bisexuality angle, I think, proved a whole ‘lot of nothing.

To me, the “new light” shed on the incident doesn’t mean much because I never invested much in the whole “hate-crimes” theory. If someone intentionally savagely beats another individual to death, then they deserve death or at least life in prison, regardless of the underlying motive for the crime—racism, homophobia, robbery, a snide remark, etc. And as I said in the beginning of the post, life, more often than not, is complicated. Sometimes, it’s just not so easy to figure out exactly “why” a particular event goes down; often there are more than one motivating factors. I don’t doubt that Shepard’s homosexuality was such a factor, but it might not have been the primary factor. So what? He was brutally murdered, and they did it. That’s all we need to know.

I’m sure I’ll have more to say on this in the future. Shepard’s murder was simply an anecdote and anecdotes, in a country of 280 million people, in and of themselves, prove nothing. Sometimes the rarest, strangest, tragic events occur and we don’t bat an eye because we know weird, tragic, shit happens. The reason why we would nationally publicize a single incident is because the incident represents a “larger” truth, or something that can be demonstrated statistically, not just anecdotally. In this circumstance, Shepard’s murder symbolized the brutal gay bashing that has been and is a reality for some gays in this nation. If it turns out that Shepard’s murder wasn’t really gay bashing after all, that doesn’t change the reality of the gay bashings that have and do occur. It just means that Shepard’s was a flawed anecdote.

Ironically, there have been many gay-bashing murders that do fit the “Mathew Shepard” narrative better than, what now seems, Shepard’s true story may not. For instance, in Bucks County, in 1987, a twenty-something year old gay man named Anthony Milano met up with two heterosexual thugs in a local bar. He went home with them, thinking they were “interested” in him. Instead, he was brutally murdered, his throat cut ear-to-ear and his body burned up in his car. There was no robbery angle (although one of the perps supposedly was on drugs when it happened, not that that matters). He was murdered solely because he was gay. And, unlike the case with Shepard, the two killers received the death penalty. But, astonishingly, a federal judge overturned the conviction of one of the perps. And that decision is now being appealed.

Everyone knows the name “Mathew Shepard,” but how many know “Anthony Milano” (just do a google search with ether name and see how many sites come up)? That’s the real tragedy.

Is that really his name?

Since I don’t watch them, I have a pretty abysmal knowledge of sports. Yet, over Thanksgiving break, since I was with my family, I had the pleasure of watching the football game.

I was taken aback that some coach, a very masculine African-American guy, actually has as his first name, “Lovie.” Bwhaa-haa-haa! Everyone knows that “Lovie” is the name of a rich-aristocratic-Rockefeller-Republican old white woman.

God I hope he doesn’t read this, or else I’ll might have the shame of being beaten up by a guy named “Lovie.” Hmmm. I remember back a while there was this football player named, “Jim Everett,” and he was taunted by some reporter who would refer to him as “Chris Everett.” And he was even called “Chris” to his face during a sit down interview with the reporter, leading to this very funny, memorable event.

The next time this coach named “Lovie” is interviewed, someone ought to just “accidentally” refer to him as “Lovie Howell.” I know if I were interviewing him, I’d be highly tempted to do so.

Giving Thanks:

This Thanksgiving I’d like to take the opportunity to thank those that I haven’t yet for blogrolling my site. Off the top of my head thanks to Dust in the Light and Kip Esquire for adding me to their blogroll.

My list of links got deleted when I changed templates a few months back. I’ll soon be “reconstructing” the list, when I have time. And I will add any blog that blogrolls me.

Also, thanks to those who read my recent article (an excerpt of which, you can read here) and provided me with critical feedback—and that’s because I just found out that the article tentatively, was accepted for publication. And not only that, I’m actually getting paid (what I consider to be a decent amount of $) for it. More on the identity of where the article will be published once all this starts to crystallize.

And finally, thanks to the magazine who agreed to publish my article.

Non-Christians & the Right to Worship:

Note, the following is an excerpt of a piece that I have completed and am submitting for publication at various places. If anyone wants to read the entire piece and provide me critical feedback (or just because you are interested) I will gladly send it to you in a Word attachment. Also, if anyone has any advice for where to submit, I'd gladly listen.

Freedom to Worship, the Ten Commandments, and Public Law

When our nation was founded as a liberal democracy, political necessity demanded that the majority of Americans, many of whom were orthodox Christians, accept that God grants men natural rights. And one reasonably could (and did) make the case that Christianity, properly understood, was compatible with liberal rights theory. Certainly, Roger Williams’s understanding of Christianity could accept that the Christian God grants men an unalienable right to “worship other gods or even no god at all.” So, it should come as no surprise that dissident Protestants and Enlightenment rationalists acted together to disestablish religion and guarantee religious liberty in this nation.

However, the notion that civil governments are properly “founded” as “Christian” in a public sense, conflicts with the doctrine of a God who grants non-Christians religious rights. Many American colonies, notably Winthrop’s Puritan Massachusetts, were founded as “Christian States,” incorporating Biblical law, in its practical entirety, into the civil law. Indeed, David Barton, a prominent religious conservative scholar, in an affidavit submitted to a United States District Court, supporting the public display of the Ten Commandments, proudly proffered examples of such colonial civil ordinances based on the First Commandment and other parts of the Bible that prescribed the death penalty for openly worshipping “any other god but the Lord God.”

In his document, Barton asserts that “the Ten Commandments…dramatically impacted American law and culture with a force similar only to that of the Declaration of Independence, the Constitution, and the Bill of Rights.” Curiously he notes

“[C]ritics often point to the Rhode Island Colony under Roger Williams and its lack of civil laws on the first four commandments to ‘prove’ that American society was traditionally governed without the first ‘tablet.’ However, they fail to mention that the Rhode Island Colony was the only one of the thirteen colonies that did not have civil laws derived from the first four divine laws -the so-called first ‘tablet.’ Significantly, every other early American colony incorporated the entire Decalogue into its own civil code of laws.”

Barton apparently doesn’t recognize the glaring inconsistency in embracing the Declaration of Independence and believing that the Ten Commandments are rightly incorporated into the civil law. For instance, Jefferson, the author of the Declaration, held that “nature’s God” grants men the right to worship no God or twenty Gods. Yet, the “jealous” Biblical God, in His first commandment expressly forbids the worship of false gods. Elsewhere in the Old Testament, God commands that those who urge others to worship “false gods” be stoned to death.

If God grants us the right to worship no God or twenty Gods, then the first four commandments, as well as many other parts of Scripture, can have nothing to do with our public laws. Moreover, if Jefferson’s nature’s God and the Biblical God are one and the same, then God grants men an unalienable right to do what He expressly forbids in the Bible. And if this notion is applied to other areas of social life, for instance, extra-marital affairs, homosexual relations, or pre-marital sex, it could radically redefine how religious conservatives view what ought to be acceptable social policy.

Clarifying My Last Post on Public Reason, the Law, and Morality:

Brock Sides writes in reaction to my last post:

As a former philosophy PhD student, I'd like to point out that the "is-ought gap" is not a distinctly "post-modern" thesis. It originates with David Hume, in the Treatise on Human Nature, Book III, part 1,section 1:

"In every system of morality, which I have hitherto met with, I have always remark'd, that the author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, 'tis necessary that it shou'd be observ'd and explain'd; and at the same time that a reason should be given; for what seems altogether inconceivable, how this new relation can be a deduction from others,which are entirely different from it."

And the term "naturalistic fallacy" was coined by G.E. Moore, who wasnot post-modern by any stretch of the term.

As to the opposing thesis, that the is/ought gap can be at least partially bridged: whereas Rawls would be the most famous 20th century exponent of that view, I think Kant deserves some credit for originating the project.

So if anything, we should see this disagreement not as one between the Enlightenment and the Postmoderns, but as between two giants of the Enlightentment, Hume and Kant.

So I then asked him whether Enlightenment thinkers who posited the is/ought gap and the naturalistic fallacy lead the way to Nietzsche and his throwing out the possibility of any type of objective morality (whether from Reason—Nature on the one hand or Biblical Revelation on the other) altogether. And he replied:

I'm not qualified to say anything about Nietzche's influences (I specialized in early modern and 20th century analytic)….

I can add that the post-modern innovation was not so much taking note of the is-ought gap and denying objective morality, but in taking that Enlightenment thesis about ethics and turning it onto epistemology and science.

Also, I'll note that moral subjectivism (or even moral skepticism)does not follow from the is-ought gap. Bridging the is-ought gap would defeat ethical subjectivism/skepticism, but the is-ought gap is logically compatible with ethical objectivism and ethical knowledge. (See G.E. Moore for the most notable, and clear, proponent of both theses.)

Public Reason, the Law, and Morality (grappling with postmodernism):

Eugene Volokh has two interesting posts where he takes on the notion that public policy cannot be based solely on appeals to religious dogma. As one of his readers put it, “that it's illegitimate . . . to justify one's decisions about how society should be run based on assumptions one cannot defend reasonably…." In other words, Volokh disagrees with the assumption that “Reason” must justify public laws and since claims based solely on Biblical Revelation flunk the “public reason test,” they are thus illegitimate public policy grounds. Ironically, in attacking this claim, there is nary a mention of John Rawls, who most famously posited the notion that Volokh argues against.

Volokh’s defense of religious dogma is, also ironically, steeped in a postmodern philosophy. It is ironic because most people associate postmodernism with the Left. But Nietzsche, the originator of postmodernism, was a right-winger. And today, the (East Coast) Straussians are atheists imbibed in Nietzsche who likewise defend (but more zealously than Volokh) fundamentalists’ appeal to Revelation as public Truth in which they (the Straussians) do not believe. (So Volokh sounds a little bit like an East Coast Straussian here). Also, Robert Bork and Chief Justice Rehnquist both have made similar postmodern arguments in defense of the Constitutionality of Law derived from values based solely on religious dogma.

So what is this postmodern argument? It holds that reason cannot establish morality, or in Volokh’s words, “important judgments about what the law ought to be ultimately rest on some unprovable moral assumptions.” Postmodernism also, of course, denies the Truth of Biblical Revelation. So we are ultimately left with no grounds for morality in general and no “provable moral assumptions” upon which to build public orders, in particular.

This postmodern epiphany has also been described as “the is/ought gap” or the “naturalistic fallacy.” Regarding the later term, “nature” and “reason” are connected: In Harry Jaffa’s words, “the only ground in unassisted human reason for [making moral judgments] is the ground of nature, not in the sense of what ‘is,’ but in the sense of what ‘ought’ to be.” But the postmodernist counters that, every “ought” ultimately derives from an “is,” or that you must always start with a moral premise to arrive at a moral conclusion.

So postmodernism aims it target squarely at notions of “reason” and "nature," hence, natural law and natural rights, the notion that there are self-evident Truths grounded in nature. But the postmodernist also denies Revelation. But we’ve seen atheistic postmodernists (the Straussians) embrace religious conservatives and their claims to Public Truth based solely on Biblical Revelation. And conversely, some religious fundamentalists have allied themselves with postmodernism because both share a common enemy: Unaided Reason.

Religious fundamentalists, tired of having their claims to public Truth based solely on Revelations denied as lacking “public reason,” have an incentive to argue that reason, by itself, can justify no moral claim upon which we ought to base our public policy. If that is true, then, why are their moral claims any less legitimate than any other claims to “public Truth”? But what about the is/ought gap? Their answer would be that “the Bible” fills the is/ought gap. (In the Olson article that I linked to above, he quotes one such traditionalist thinker admitting that “the two camps still ‘disagree on whether God exists,’ but figured that little problem can be worked out after the rationalists are driven from the field”).

And to add even more irony to the mix: As I’ve noted before, many very conservative dogmatic Catholic thinkers embrace the Rawlsian theory that Volokh argues against. I’m thinking of men like John Finnis, Robert George, Gerard Bradley, and Richard John Neuhaus. As William Galston writes reflecting on Neuhaus’s book, The Naked Public Square:

[T]he issue of public reason has been intensely debated, largely under the influence of John Rawls. When I returned to Neuhaus's work, I was surprised to discover that his account of public reason bears more than a passing resemblance to Rawls's. Neuhaus criticizes the religious new right for "making public claims on the basis of private truths" (36; emphasis in the original). The integrity of politics, he says, requires us to resist all such proposals. Public decisions, he insists, must be made through arguments that are "public in character." He continues: "A public argument is transsubjective. It is not derived from sources of revelation or disposition that are essentially private and arbitrary" (36). Accordingly, those who want to bring religiously based values into the public square "have an obligation to 'translate' those values into terms that are as accessible as possible to those who do not share the same religious grounding" (125).

Catholics like Neuhaus feel comfortable with the “public reason” test because Catholics have their rich natural law tradition, which is itself based on unaided reason, or universal principles, that man as man, can know for himself. Of course, this is what the Enlightenment was all about as well. And both the Enlightenment and Catholic natural law have their antecedents in Aristotle who developed the concepts of “reason” and “nature” in the first place.

And much of Catholic Dogma, indeed, much of the Church’s socially conservative positions on abortion, contraceptives, homosexuality, is “justified” by the natural law, or on principles of reason that are universally accessible to man as man.

However, not everyone accepts the “Catholic” or “Thomistic” view of natural reason. The Enlightenment, in many ways, represented a radical break with the Thomistic understanding of nature. The Catholic Church and the followers of Thomas Aquinas (who, like Harry Jaffa, are not all Catholic) may have one understanding of “reason” that demands abortion be outlawed, that homosexual and contraception are “unnatural” and hence wrong…but other thinkers, for instance, Voltaire, or Ayn Rand and her followers, or Daniel Dennett, appealing to the same principles of universal reason, may come to radically different conclusions on these matters.

So there seems to be a modern (Enlightenment) and traditionalist (Thomistic) split on what reason tells us regarding many different contentious public issues.

This split is exemplified by the briefs filed, in the Lawrence v. Texas case, by the Family Research Council (written by natural lawyers Bradley and George) on the one hand and the Institute for Justice (written by natural lawyer Randy Barnett), on the other. They took opposing sides on whether governments ought to be allowed to outlaw wholly consensual private sodomy. But both sides based their cases on the same (originalist) grounds: certain self-evident Truths, grounded in nature (the natural law case against sodomy, on the one hand, and the natural rights limitation on government interference with wholly consensual private acts, on the other); but their understanding of those same principles demanded differing outcomes.

What was the United States founded on?

One big blow against both the fundamentalist/postmodernist side is that this nation was not founded appeals to Biblical Revelation or denial of any objective moral or public Truth, but rather on “Reason” or, as the Declaration of Independence puts it, “the laws of nature and nature’s God.” Not everyone understands what this phrase means. Many on the religious right misinterpret this as the Biblical God and His revealed law. John Adams put it differently:

The United States of America have exhibited, perhaps, the first example of governments erected on the simple principles of nature.... [In] the formation of the American governments ... it will never be pretended that any persons employed in that service had interviews with the gods, or were in any degree under the influence of heaven.... These governments were contrived merely by the use of reason and the senses.

John Adams, A Defense of the Constitutions of Government of the United States of America, 1788

In fact, the notion that public policy needs to be justified by public reason did not originate with Rawls, but (if I interpret him correctly) John Locke (or perhaps an earlier philosopher? Aquinas?). And Locke, arguably, influenced the founding more so than any other philosopher (that's why he is commonly referred to as “America’s philosopher”). Locke argued that Truth is knowable by reason and that revelation is only true insofar as it is reasonable. But Locke also claimed to be a Christian, and Christianity to be “reasonable.” Hence, there was no problem. But many of his earliest followers, using his formula of untrammeled reason, found the Bible, in its entirety, to be anything but reasonable. One thinks of Jefferson and his cutting out wholesale parts of the Bible that didn’t comport with Reason.

Of course, there is always the question of what the founders meant when they appealed to “Reason” or “the laws of nature” in formulating our governments. The Thomists argue that Reason and Revelation largely agree on most matters; thus the natural law will complement the policy agenda of religious conservatives who based their claims upon Revelation. But did our founders—men like Jefferson, who used Reason to reject much Christian dogma, and in fact, savaged it with terms like “insane,” [the Trinity] “dung” [the Gospels] and “Daemonism” [Calvinism]—men who, if you’ve read some of their quotes on the Roman Church, were practically anti-Catholic bigots—intend to appeal to a Thomistic view of “the laws of nature” in founding our nation, or to a more modern Enlightenment understanding of nature? That’s the million dollar question.

Moreover, the postmoderns can counter that this dispute between traditionalists and modern natural lawists is meaningless; our founders may have appealed to universal principles of natural law and natural rights; but in doing so they appealed to something that didn’t exist. So let’s accept that and move on.

My own position is that I am predisposed towards the Modern Enlightenment view of Nature. But I’m not sure if I can use reason to “bridge” the is/ought gap. So if I am going to start with a moral premise in order to arrive at a moral conclusion regarding where we derive our public policy, the unquestioned premise that I start with is this:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….

The myth of the racist death penalty:

Orin Kerr gives the goods on death penalty stats for 2003. Only 65 people were executed (and keep in mind that roughly 20,000 homicides are committed each year). Of those executed,

-- 41 were white
-- 20 were black
-- 3 were Hispanic (all white)
-- 1 American Indian
* Of those executed in 2003, all 65 were men

Now, perpetrators of the "death penatly is racist" myth might note, blacks are 13% of the population but around 30% of those executed; therefore, a black is more likely to be executed than a white. Well, by that logic, the death penalty is extremely sexist (extremely anti-male); men are slightly less that 50% of the population, but 100% of those executed. But of course, men are the ones who are committing the overwhelming majority of capital crimes....

The bottom line is blacks commit roughly half of all capital crimes in this nation but also constitute significantly less than half (less than 30% this particular year) of those executed, in any given year. Therefore, a white person who commits a capital crime is more likely to be executed than a black who commits a capital crime.

In order to twist “racism” out of the death penalty, it was argued in law school that the killer of a black victim is less likely to receive the death penalty than a killer of a white. This is true, but I hardly see how this merits the conclusion of racism (they argue that it sends the message that a white victim has more value than a black). However, it’s precisely because a killer of a white victim is more likely to receive the death penalty than a killer of a black, that a white perpetrator of a capital crime is more likely to be executed than a black (given that crimes, including captial crimes, tend to be intra-racial).

This is a classic damned-if-you-do-damned-if-you-don’t scenario. Could you imagine if murderers of black victims were more likely to receive a death sentence than murders of whites. Since black victims tend to be murdered by black perps and white victims tend to be murdered by white perps, then the inevitable result would be a black perpetrator of a capital crime would more likely receive the death sentence than a white perpetrator of such a crime. So what message would we derive from such a scenario? That black victims are more valuable than white victims? No. That the death penalty is racist because a black who commits a capital crime is more likely to be executed than a white who commits a capital crime.

My sense of humor:

My best friend (David Klecker of Baton Rogue, LA) is my best friend primarily because of our shared sense of humor. We met in our senior year of high school and it’s been one big laugh fest for the both of us since then. My sense of humor is kind of odd—at once both intellectual and sophomoric. I can’t tell you how many things just make be burst out loud laughing that many people wouldn’t find remotely funny.

So I’m going to give my readers a test to see if any share a similar sense of humor. I’ve watched quite a few episodes of the Brady Bunch, and during my childhood and adolescence was a big fan (my best friend & I even met Barry Williams when he came and spoke at Penn State, Altoona, where Dave was attending). So years ago, I bought Barry Williams’s book Growing up Brady, and there was quite a bit written about the Brady’s Patriarch, Robert Reed (he was still alive and in the closet when the book was written). Reed, in fact, wrote the Foreward to the book.

Reed comes off as a very intelligent, intellectual, neurotic, old-fashion conservative. He was a Shakespearean actor, educated at Northwestern University and transferred to the Royal Academy of Dramatic Arts in London. The Brady Bunch Book describes him as “a self-proclaimed conservative (his idea of marriage in 1963 was ‘to have a little wife to make that 5:00 A.M. coffee, do the dishes, and wash my laundry’)….”

As we all know, he turned out to be gay…a gay conservative.

Anyway what amuses me most about Reed was the fact that he was driven nuts by the Brady Bunch scripts and his having to act under such scripts. Instead of just enjoying his money and rolling his eyes (like 99% of the other actors in his circumstance would do), he decided to fight producer Sherwood Schwartz tooth and nail over this silly show. And he would write these long memos, these long polemics, very well written, complete with references to Shakespeare…. These memos read like he was fighting over something of utmost import, like the “nature” of the “political and social good.” These memos almost read as if they were written by Allan Bloom (another gay conservative).

Anyway, his memos amuse me beyond belief. So, I found this goldmine of a memo online, and I am reproducing it to see if any of you find it as funny as I.

Robert Reed's Orignal Memo Regarding Episode 116

To Sherwood Schwartz et al.

Notes: Robert Reed

There is a fundamental difference in theatre between:

1.Melodrama
2.Drama
3.Comedy
4.Farce
5.Slapstick
6.Satire &
7.Fantasy

They require not only a difference in terms of construction, but also in presentation and, most explicitly, styles of acting. Their dramatis peronsae are noninterchangable. For example, Hamlet, archtypical of the dramatic character, could not be written into Midsummer Night's Dream and still retain his identity. Ophelia could not play a scene with Titania; Richard II could not be found in Twelfth Night. In other words, a character indigenous to one style of the theatre cannot function in any of the other styles. Obviously, the precept holds true for any period. Andy Hardy could not suddenly appear in Citizen Kane, or even closer in style, Andy Hardy could not appear in a Laurel and Hardy film. Andy Hardy is a "comedic" character, Laurel and Hardy are of the purest slapstick. The boundaries are rigid, and within the confines of one theatric piece the style must remain constant.

Why? It is a long since proven theorem in the theatre that an audience will adjust its suspension of belief to the degree that the opening of the presentation leads them. When a curtain rises on two French maids in a farce set discussing the peccadilloes of their master, the audience is now set for an evening of theatre in a certain style, and are prepared to accept having excluded certain levels of reality. And that is the price difference in the styles of theatre, both for the actor and the writer--the degree of reality inherent. Pure drama and comedy are closest to core realism, slapstick and fantasy the farthest removed. It is also part of that theorem that one cannot change styles midstream. How often do we read damning critical reviews of, let's say, a drama in which a character has "hammed" or in stricter terms become melodramatic. How often have we criticized the "mumble and scratch" approach to Shakespearean melodrama, because ultra-realism is out of place when another style is required. And yet, any of these attacks could draw plaudits when played in the appropriate genre.

Television falls under exactly the same principle. What the networks in their oversimplification call "sitcoms" actually are quite diverse styles except where bastardized by careless writing or performing. For instance:

M*A*S*H....comedy
The Paul Lynde Show....Farce
Beverly Hillbillies.....Slapstick
Batman......Satire
I dream of Jeannie....Fantasy

And the same rules hold just as true. Imagine a scene in M*A*S*H in which Arthur Hill appears playing his "Owen Marshall" role, or Archie Bunker suddenly landing on "Gilligan's Island" , or Dom Deluise and his mother in " Mannix." Of course, any of these actors could play in any of the series in different roles predicated on the appropriate style of acting. But the maxim implicit in all this is: when the first-act curtain rises on a comedy, the second act curtain has to rise on the same thing, with the actors playing in commensurate styles.

If it isn't already clear, not only does the audience accept a certain level of belief, but so must the actor in order to function at all. His consciousness opens like an iris to allow the proper amount of reality into his acting subtext. And all of the actors in the same piece must deal with the same level, or the audience will not know to whom to adjust and will often empathize with the character with the most credibility--total reality eliciting the most complete empathic response. Example: We are in the operating room in M*A*S*H, with the usual pan shot across a myriad of operating tables filled with surgical teams at work. The leads are sweating away at their work, and at the same time engaged in banter with the head nurse. Suddenly, the doors fly open and Batman appears! Now the scene cannot go on. The M*A*S*H characters, dealing with their own level of quasi-comic reality, having subtext pertinent to the scene, cannot accept as real in their own terms this other character. Oh yes, they could make fast adjustments. He is a deranged member of some battle-fatigued platoon and somehow came upon a Batman suit. But the Batman character cannot then play his intended character true to his own series. Even if it were possible to mix both styles, it would have to be dealt with by the characters, not just abruptly accepted. Meanwhile, the audience will stick with that level of reality to which they have been introduced, and unless the added character quickly adjusts, will reject him.

The most generic problem to date in “The Brady Bunch” has been this almost constant scripted inner transposition of styles.

1. A pie-throwing sequence tacked unceremoniously onto the end of a weak script.
2. The youngest daughter in a matter of a few unexplained hours managing to look and dance like Shirley Temple.
3. The middle boy happening to run into a look-alike in the halls of his school, with so exact a resemblance he fools his parents [Rowe: what that’s never happened to you?].

And the list goes on.

Once again, we are infused with the slapstick. The oldest boy’s hair turns bright orange in a twinkling of the writer’s eye, having been doused with a non-FDA-approved hair tonic. (Why any boy of Bobby’s age, or any age, would be investing in something as outmoded and unidentifiable as “hair tonic” remains to be explained. As any kid on the show could tell the writer, the old hair-tonic routine is right out of “Our Gang.” Let’s face it, we’re long since past the “little dab’ll do ya” era.)

Without belaboring the inequities of the script, which are varied and numerous, the major point to all this is: Once an actor has geared himself to play a given style with its prescribed level of belief, he cannot react to or accept within the same confines of the piece, a different style.

When the kid’s hair turns red, it is Batman in the operating room.

I can’t play it.

Off to see Kansas:

I'm going to see Kansas tonight at the Keswick theater in Glenside, PA. They are, hands down, the greatest progressive rock band...er, well at least the greatest American progressive rock band. This is the fifth time I've seen them. I try to see them every time they come around to my area and when I'm free.

Not every progressive rock fan shares my enthusiasm about Kansas. 1/3 of them aren't even aware that Kansas play progressive rock (because they are best known for their 2-monster hits, Carry on Wayward Son, and Dust in the Wind, although solid commercial rock songs, are not exactly representative of the genre that they play in. But ironically, those songs made them all of their $ and continue to sustain them to this day). 1/3 of progressive rock fans that I speak with are aware that, yes, Kansas play progressive rock, but consider them to be more of a "second-rate" prog. rock band, certainly not in the same league as Genesis, Yes, ELP, and King Crimson (the British originators of the genre). And finally 1/3 of the progressive rock fans I encounter share my enthusiasm for Kansas.

Progressive rock is characterized by a greater level of musicianship, long and often considered "self-indulgent" song forms (suite form), and odd time signatures. Kansas certainly has all that. Some prog. rock players aren't just good musicians, but virtuosos that could give the greatest classical musicians a run for their money. Indeed, Keith Emerson (man, I'm itching to see him again. I saw ELP in '91) of Emerson, Lake, and Palmer and Rick Wakeman of Yes, are both classically trained virtuosos. Kansas doesn't play at quite that level. They have a saying about their musicianship: "Nobody's a virtuoso; but nobody's a slouch."

There are 3 distinct things about Kansas that make them special, in my mind.

1. Steve Walsh's voice: One of the greatest of all times. I can't quite describe it in words. Genesis guitarist Steve Hackett once said that Walsh possessed the "perfect, white rock voice." The bad news is that Walsh's voice doesn't sound like it did in the '70's and probably never will (the early to mid-90's were a low point for Walsh's voice; he sounded God-awful on Live at the Whiskey). The silver-lining is that, even though his voice doesn't sound quite like it used to, it is now sounding better than it has in years. Getting off drugs & alcohol, and living a life-style that includes running regularly some 20 miles at a time (literally) I guess has helped to whip his voice back into shape and keep him fit & trim for a guy in his early 50s.

2. Kerry Livgren's writing: Livgren is the genius composer behind Kansas. He's since become a born-again Christian and a minister, but still writes for the band (and plays on their records). But he doesn't tour with them. Why? He doesn't have to. He wrote their two smash hits. And if you know about the quirks of the music business and copyright law, the writers of hit songs get the brunt of the royalties from the hits (that means in bands, not all of the $ is split equally). In addition to writing their two-hits, he also has composed most of their hard-core progressive rock tunes as well. Songs like Journey from Mariabronn, Song for America, and The Pinnacle, and No One Together are some of the greatest progressive rock tunes ever penned.

3. The playing & the musical arrangements: With Guitars, keyboards, violin, bass, & drums, odd-time signatures, "suite-form" songs, Kansas do not sound like a typical rock band. "Symphonic" is term, commonly used to describe the heavy, classical music-inspired sound that many progressive rock bands, like Yes, emit. I think a more accurate term, at least in Kansas's case, would be "electric chamber music." Their tunes are very "line-oriented" and are carefully arranged more like chamber music, as opposed to "you play this chord for this many beats."

[Note: Steve Morse, virtuoso guitarist for the fusion band, the Dixie Dregs, coined the term "electric chamber music," and in fact, writes in that style. Morse also briefly played in Kansas in the '80s. Although the Dixie Dregs are more of a virtuostic band than Kansas, there are similarities in their styles, particularly in the "line-oriented" way of composing and arranging the music, and in the guitar/keys/violin/bass/drums instrumentation. Unfortunately, when Morse was with Kansas in the '80s, the record companies pressed hard for commercial hits, and they thus adopted a more commercial "album-oriented" sound (for instance, they ditched the violin!). And those two albums, although not bad, were not what they could have been.]

Kansas's first five studio albums are a must for any serious progressive rock fan. Although they have other good stuff (as well as some bad stuff), that was the band's peak period:

Kansas
Song for America
Masque
Leftoverture
Point of Know Return

[Update: It rocked, of course. Walsh's voice was a little rough. But everything else was great. Best part of the show: they played Magnum Opus, in the words of Rush, one of the coolest progressive rock songs ever done.]

More on the Founding Principles of the "Ends of Government":

Sandefur comments on my recent post and sheds light on the rhetorical origins of the Declaration. In particular, he takes aim at my last post when I noted:

Our framers were greatly influenced by the writings of English-Scottish philosophers. And that rhetorical style had its own quirks, one of which was that things would often be categorized into threes: “life, liberty, and property” or “life, liberty, and the pursuit of happiness.” Not, “life, liberty, property, and the pursuit of happiness.” Having four things listed instead of three simply didn’t flow right to the ears. But, I will say that perhaps the fact that property was explicitly left out was a mistake in drafting of the Declaration….

And he replies:

No! Oh, lord no. The Declaration was written very shortly after the Virginia Declaration of Rights, which was of course read by Jefferson while he was attending Congress in Pennsylvania. That document begins

all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

We see here no “rhetorical three.” Rather, it’s a more thorough philosophical explanation of the connection between liberty and property. When a person exercises his liberty by entering into a contract, say, for labor, he obtains in exchange for that, property—his wages. He puts those wages to use in providing for food, shelter, and amusements. That is, property is the mechanism by which we turn liberty into happiness and safety.

Very nicely put. When I was thinking about quoting something on the natural rights theory that describes “the ends of government” but also demonstrates the centrality that property played in that theory, I thought of Bloom’s quote in The Closing of the American Mind that I reproduced for discussion. Rather, I should have looked to the Virginia Declaration of Rights, written the George Mason, and quoted that document. Or I could have quoted what Sandefur quotes from James Madison:

Madison would later explain that the term “property” included this right to earn a living:

He has an equal property in the free use of his faculties and free choice of the objects on which to employ them…. Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses…. That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.

The phrase “the pursuit of happiness,” therefore, is intended more generally to refer to the right of, among other things, gainful pursuits. Property, of course, is included in that, but the fact that the word “property” doesn’t appear is hardly an oversight. Indeed, it is intended to be more inclusive, in order to encompass the most precious right that man possesses—the right to earn a living as he chooses. Jefferson was just better able to condense into a single phrase what Mason took a long time to say. For a more thorough explanation of the connection between the right to pursue happiness and the right to earn a living, consult Justice Field’s dissent in The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873), or chapter 2 of Thomas West’s Vindicating the Founders.

Veterans Day:

Of course, I couldn't let this day go by without thanking those serving today and all those who have ever served. You are better men than me. Thanks guys!

Modern philosophy and the “ends of government”:

The following is an email from reader Dave Hauser, a student at Kenyon College in Gambier, Ohio, which has a strong Straussian tradition and several professors who studied under Allan Bloom. He is responding to my last post where I discussed a passage from Bloom’s The Closing of the American Mind, where Bloom speaks of the proper ends of government. Justin Katz thinks that Bloom wrongly implies that life and liberty are subordinate to property (you can find the passage in my last post, linked above). Here is the email:

I just wanted to add something to your Declaration debate. I think Bloom described property first, in the statement posted earlier, in order to follow the line of thinking covered by John Locke in the 2nd Treatise. Locke (and Bloom) certainly do not hold material property over human life and liberty, but used it to justify a man's control over his own life. I think the main reason why property is stressed is Locke's complex argument for Hobbesian natural rights had to be protected from charges of atheism from people at the time. Hobbes was ostracized by society for preaching a doctrine that is extremely divergent from Christian beliefs and his message was never openly accepted in good circles. Locke understood this and had to work his expanded rights doctrine into English society by using cunning rhetorical devices in order for it to be accepted by the general public. He begins his Treatise by following "the judicious" Richard Hooker in saying that man is God's property before making the Hobbesian turn away from classical Catholic rights theory and stating that man is his own property and he cares for his own life and liberty above all else. I think Bloom is trying to emphasize the important role that property played in the Locke's radical treatise and the respectability it gained in conservative circles for justifying property through God and, later, nature.

Just throwing my two-cents in. I think you are dead on with Bloom's stress on the lowering of ambitions in the commercial republic. Keep up the good work.

Discussion on the Declaration & Public Policy on Dust in the Light:

Somehow a discussion thread that I participated in on this thread on Justin Katz’s Dust in the Light turned towards the Declaration of Independence and the proper ends of government (okay—I admit, I turned the discussion that way). To which, Justin responded with this post (in which he linked to my blog, thanks Justin) which raises some interesting questions. Note, when I invoked the Declaration of Independence, I also prefaced my invocation with an explanation of the natural rights theory which I think the Declaration reflects. And in doing so, I quoted Allan Bloom’s The Closing of the American Mind (because Bloom’s quote eloquently captures the idea). Anyway here is the quote from Bloom’s book re: the proper ends of government:

Government exists to protect the product of men's labor, their property, and therewith life and liberty. The notion that man possesses inalienable natural rights, that they belong to him as an individual prior, both in time and in sanctity, to any civil society, and that civil societies exist for and acquire their legitimacy from ensuring those rights….p. 165

(Note: In reading the book, Bloom, like the other Eastern Straussians doesn’t wholly embrace this creed like, say Harry Jaffa does. Rather the Eastern Straussians think of it as a sort of “half-truth.” But certainly a better place to rest our public institutions than nihilistic relativism.)

Here are a few of Justin’s questions on the topic:

1. The question remains: what does it mean to ensure a right to life, liberty, and the pursuit of happiness? The Declaration, itself, demurs, stating simply that the people can lay their government's "foundation on such principles" as seem most promising "to them." So, again, who decides what policies are "most likely to effect [citizens'] Safety and Happiness" for the better?

I’m not sure if anyone “decides” the "meaning." Isn’t that like asking, who “decides” what it means that 2+2 = what? In order for the principles of the Declaration to have objective meaning (like an equation), there are a great deal of questions that will be “answered” already outside of subjective decision making. Whomever it is that gets to answer that question should be bound by the objective principle.

2. Who has the final say? Jon suggests that judges do, but his conclusion presumes that the legislative and executive branches are being objectively negligent.

Now that’s a different question. We are not asking what the answer to 2+2 =, but rather who gets to answer the question. I would argue that all three branches of government do. (Note: I made a similar, but more detailed, argument here). I’m all for legislatures and executives securing natural rights. Jefferson’s VA Statute on Religious Freedom is an excellent example of natural rights secured by a state legislature. But if the legislature fails to act, and if that question should find itself in front of a court, I have no problem with a court effectively answering the question, -- and finalizing the answer either nationally, or for a particular state -- so long as they do so consistent with the text of the Constitution and the proper “ends” of government, as understood by the Declaration. And if the question is one that involves equality or liberty of the individual, then such question, probably has a proper basis being before the Court.

Then again, there is always the question of whether it’s a good practical idea for the Court to step in and answer that question when society isn’t ready for it. Look, a court may be able to make a good theoretical argument about why such a national policy based on a particular Constitutional text (probably the 14th Amendment) and its underlying policy (liberty or equality), should be implemented. Take Brown v. Board of Edu., and Loving v. VA., for instance. These cases were decided in 1954 and 1967, respectively. Yet, they were based on the 14th Amendment which was ratified in 1868. Many conservatives have come to accept that both of these cases were consistent with the proper understanding of the 14th Amendment. Well, if that’s the case, then theoretically, either of these cases and their respective outcomes could have been decided in 1869. But perhaps, it wouldn’t have been a good idea for the Court to have stepped in, at that moment, and effected that change at that time, because perhaps the country wasn’t ready for such drastic social changes then. (We, as a nation, getting over the civil war, and engaging in Reconstruction, already had enough on our plate to deal with).

My mind isn’t entirely made up regarding whether it would ever be proper for the Supremes to rule gay marriage a national right based on the presently existing Constitution. But one thing is for sure, if they do, it shouldn’t be until the country is more ready for it, like for instance, when a majority of the states have already recognized gay marriage. How many sodomy laws were on the books when Lawrence was decided? 13. How many anti-miscegenation laws were on the books when Loving was decided? 16. It would thus be appropriate for the Court to step in and resolve the gay marriage issue, on a national level, when around ALL but that number of states have already recognized it.

Orin Kerr’s quote from Jack Balkin is spot on re: court’s properly resolving social issues, on a national level:

Judges are sort of like place kickers in football. Most place kickers are pretty bad at making an open-field tackle to stop a speedy running back returning a kickoff. But place kickers can help pile on after the other players have tackled or slowed down a runner. That is sometimes how I imagine courts and their relationship to social change: They see the running back lying on the ground, groaning under the weight of a huge pile of linebackers. The judges say to themselves, "It's time for us to do some justice!" and they throw themselves on the pile.

Justin also questioned whether Bloom’s quote accurately reflected the theory that underpins the Declaration:

Note that Bloom sublimates life and liberty to another right that isn't even in the Declaration: property. Perhaps we have succeeded in finding an essential difference of belief of the sides in this debate; I'm surely not alone in believing that — far from being subordinate to property — life, liberty, and especially happiness don't ultimately require it.

Look, I’m willing to say that life, liberty, and property all ought to be given equal weight. I think Bloom’s point was that the United States was founded as a commercial republic. And that the focus of government was shifted from the classical (Greco-Roman) and Biblical “higher” notions of virtue and the soul, and put squarely on commerce (this was necessary because man has a passion in self-preservation, and a commercial republic was the one that best, in fact, the only one, that enabled man effectively, to meet such needs). My point wasn’t to demonstrate that property was superior to life & liberty, but merely that it was one of the top founding concerns, indeed concerns in which governments are instituted among man to secure. If I had to list them all, I would list 5: life, liberty, property, pursuit of happiness, and equality.

This is really a topic for another discussion but it can be demonstrated by reference to founding documents like the Federalist papers, the writings of James Madison, and the writings of the philosophers who most greatly influenced our framers, Locke for instance, that “property” is one of those “unalienable” rights implicit within the Declaration and that government must to secure. Why was property explicitly left out I’m not exactly sure, but a law professor of mine gave an odd but probably accurate explanation: Our framers were greatly influenced by the writings of English-Scottish philosophers. And that rhetorical style had its own quirks, one of which was that things would often be categorized into threes: “life, liberty, and property” or “life, liberty, and the pursuit of happiness.” Not, “life, liberty, property, and the pursuit of happiness.” Having four things listed instead of three simply didn’t flow right to the ears.

But, I will say that perhaps the fact that property was explicitly left out was a mistake in drafting of the Declaration; indeed, I had a radical leftist Con law professor who argued that because property was left out, such a right wasn’t as important as say, equality. And I would caution any conservative against arguing that property is not a vital concern that governments must secure. Indeed, there exists some tension between “equality” on the one hand, and “property” on the other. In the modern era, we argue as to what the proper understanding of “equality” is: “equality of opportunity” (the “classical” free market understanding) or “equality of result” (the Marxist-egalitarian one). The only way to get “equality of result” as a proper understanding of equality is to wholesale throw out “property” as an unalienable right that government ought to secure.

Two more good articles:

This article by John R. MacArthur deals with the traditions of Roger William’s Protestantism & the Enlightenment v. John Winthrop’s Protestantism and specifically relates it to today’s political/theological debate (just like the article I referenced in this blogpost). Thanks to Justin Katz for the link to the article. Here is the good part:

We liberals sometimes forget that the United States has two sets of Founding Fathers: the Puritans of Massachusetts (inspired largely by the 16th Century French refugee to Switzerland John Calvin) and those remarkable avatars of the American Enlightenment: Jefferson, Madison, Franklin and Paine (inspired by, among others, the 18th Century French refugee to Switzerland Voltaire).

From their "City upon a Hill," the ferocious ministers of Boston and Salem, liberated from religious intolerance in England, sought to impose their own version of Protestant intolerance on everyone living in the Massachusetts Bay Colony -- to such a degree that one of our greatest religious dissidents, Roger Williams, fled south, to found the colony of Rhode Island.

Faced with the radical proposition put forward after the Revolution by Jefferson and Madison -- that of a prohibition against any religious "test" for public officials and trustees -- the mullahs of Massachusett let loose a fusillade of rage. Susan Jacoby, in her book, cites one especially rabid fulmination against the Constitution's Article VI during the ratification debate at the Massachusetts convention: If the chief executive was to be free to take office without swearing allegiance to God, said the orator, "a Turk, a Jew, a Roman Catholic, and, what is worse than all, a Universalist may be president of the United States."

In New York, the Rev. John M. Mason declared that another radical innovation -- the explicit omission of God from the new Constitution -- would have dire consequences: "We will have every reason to tremble, lest the Governor of the Universe, who will not be treated with indignity by a people more than by individuals, overturn from its foundations the fabric we have been rearing, and crush us to atoms in the wreck."

Against this extreme Presbyterianism (in fact, an oversimplification of Calvin's thoughts about church and state) were ranged the humor and common sense of Jefferson: "It does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg."

But behind the bon mot lay an intellect and determination made of steel. As Mark Crispin Miller, in his book, observes, "it was to keep the people's freedom thus preserved from the oppressive troops of any faith -- and thereby keep religious liberty itself alive -- that Jefferson and his associates deliberately conceived our godless Constitution."

Later, during his presidency, Jefferson found the words that still galvanize the freethinkers among us. Disturbed by Protestant ministers who sought to subvert the First Amendment and establish an official American religion, this "anti-Christ," "French infidel" and "howling atheist" wrote: "I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man."

More pertinent still -- in light of Bush's crusade against fundamentalist Islam -- is the Treaty of Tripoli, of 1796. Signed by George Washington, this text, better than any other, delineates the secular principles cherished by the political elite of the time:

"As the government of the United States of America is not in any sense founded on the Christian Religion -- as it has in itself no character of enmity against the laws, religion or tranquility of [Muslims] -- and as the said States never entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries."

The treaty didn't immediately end the fighting with Islamic Libya, but the sentiments reverberate down to our day. Do you hear, Osama bin Laden.

And here is this article entitled, “The Day the Enlightenment Went Out,” by Garry Wills.

Which raises the question: Can a people that believes more fervently in the Virgin Birth than in evolution still be called an Enlightened nation?

America, the first real democracy in history, was a product of Enlightenment values - critical intelligence, tolerance, respect for evidence, a regard for the secular sciences. Though the founders differed on many things, they shared these values of what was then modernity. They addressed "a candid world," as they wrote in the Declaration of Independence, out of "a decent respect for the opinions of mankind." Respect for evidence seems not to pertain any more, when a poll taken just before the elections showed that 75 percent of Mr. Bush's supporters believe Iraq either worked closely with Al Qaeda or was directly involved in the attacks of 9/11.

The secular states of modern Europe do not understand the fundamentalism of the American electorate. It is not what they had experienced from this country in the past. In fact, we now resemble those nations less than we do our putative enemies.

Where else do we find fundamentalist zeal, a rage at secularity, religious intolerance, fear of and hatred for modernity? Not in France or Britain or Germany or Italy or Spain. We find it in the Muslim world, in Al Qaeda, in Saddam Hussein's Sunni loyalists. Americans wonder that the rest of the world thinks us so dangerous, so single-minded, so impervious to international appeals. They fear jihad, no matter whose zeal is being expressed.

It is often observed that enemies come to resemble each other. We torture the torturers, we call our God better than theirs - as one American general put it, in words that the president has not repudiated.

Of course, I don’t agree with a fair amount much of what is written in these articles (their comments implicate that Enlightenment favors the left-Democrats -- I'd rather see a consensus of acceptance of these universal norms: "we are all liberal democrats now!"). But it is nice to see two Lefties invoking the Enlightenment and Reason, as opposed to Post-Modern, Deconstructionist Relativism.

Specter for Chief Justice, or maybe Hatch:

With all of the conservatives fulminating over Arlen Specter, wouldn’t it be poetic justice if Bush appointed him as Chief Justice to the Supreme Court as Charles Schumer suggests? He’d have no problem getting confirmed; but the anti-Roe folks would go nuts. That alone would prevent Bush from nominating Specter. Some time ago, I heard that Orin Hatch might be a contender for Chief Justice (at least, it’s a job he’d like to have). A Hatch nomination would go over better than a Specter. Again, the Senate would have no problem confirming Hatch, and he’d probably satisfy most (but not all) of the social conservatives as well. And I agree that Alberto Gonzalez is also confirmable.

So that’s three fairly solid conservatives (but not quite as extreme as say a Bork or a Scalia) that I have identified that could be confirmed to the Supreme Court:

1. Michael McConnell
2. Orin Hatch
3. Alberto Gonzalez

Re: Sandefur’s suggestion that Bush nominate Justice Ginsburg as Chief Justice—I’d have no problem with it, but symbolically, this will drive the social cons nuts. Nominating Justice Kennedy—the author of Lawrence v. Texas, but still far more conservative than Ginsburg—as Chief Justice would cause a big enough fuss among social conservatives.

Nailing Roy Moore while giving a History lesson:

I came across this article while doing research for publishing ideas. I can’t tell you how many times I try to come forth with a novel idea only to find an article on the Internet, written much better than I ever could, that captures the exact idea that I would want to put across. This article certainly qualifies.

In it, the real tradition in which Roy Moore operates is exposed:

Moore’s appeal to biblical law – and his vision of a Christian America – is the latest chapter of an old story in U.S. history. It’s an argument about America’s identity that dates all the way back to the Puritans of Massachusetts Bay Colony.

Listen closely, and Roy Moore sounds much like John Winthrop, the first governor of the Puritan colony….

Although the ACLU wasn’t around in 1630, Winthrop’s biblical commonwealth didn’t go unchallenged. The first dissenter was a young Puritan minister named Roger Williams – later founder of Rhode Island and co-founder of the first Baptist church in America. And he based his dissent on an entirely different reading of Scripture….

Not surprisingly, Williams’ challenge to civil authority in matters of faith led to his banishment from Massachusetts in 1635….

Massachusetts’ loss was America’s gain. Roger Williams left the Bay Colony to found Rhode Island, where he was determined to build what he described as a “wall of separation” to protect the “Garden of the Church” from the “Wilderness of the World.” Only in such a society, he believed, would each person be free to follow his or her own convictions in matters of faith without interference from the state. Rhode Island, promised Williams, would become “a haven for the cause of conscience.”

Williams’ vision of a society that protects freedom of conscience (what he called “soul liberty”) for people of all faiths or none was in direct opposition to the vision of a holy commonwealth proclaimed by Winthrop on the Arabella. Winthrop’s vision required that all citizens in the society conform to God’s law as interpreted and enforced by the state. Williams, on the other hand, asserted that it was against God’s law for any state to invoke divine authority or otherwise confuse the civil with the spiritual.

"All civil states with their officers of justice in their respective constitutions and administrations," wrote Williams, “are proved essentially civil, and therefore not judges, governors, or defenders of the spiritual or Christian state and worship.”

Two visions of America: A Christian nation as defined by Justice Moore and his supporters – or a “haven for the cause of conscience” as guaranteed by the First Amendment.

The choice is ours.

Click on the article to read what’s in between the ellipses.

Bush & the Supreme Court:

Bush will get to pick, I predict, at least 3 new Justices over the next four years. Rehnquist certainly will be one of the vacancies. Stevens, at age 84, most likely will be another. And it’s also likely that at least one (or more) of the other seven will go as well. Although the Court will likely shift rightward, it’s highly unlikely that Bush will get to pick three new Justice Scalias. First, even with 54 votes in the Senate, the Democrats can still filibuster the nomination which requires 60 votes to break. Second, even if the filibuster is scrapped (in this particular circumstance), which it might be (declared unconstitutional by a court?), there are enough moderate to liberal Republicans in the Senate who would refuse to pack the court with right-wing ideologues...unless of course, in two years, after the next election, conservative Republicans gain even more ground in the Senate.

Arlen Specter is the poster boy for the liberal-moderate Republican, and he also is likely to be the chair of the Senate’s judiciary committee. And he’s already given Bush a warning not to try to pack the Court with extremists.

My predictions on a man who will be nominated and confirmed to the Supreme Court (especially if it looks like an ugly battle will ensue): 10th Circuit Judge, Michael McConnell. He is a fairly solid conservative, but enough of a free thinker and a brilliant and accomplished scholar that he commands respect from all over the ideological spectrum.

Just check out this list of law professors who supported his nomination to the 10th Circuit; it’s full of right-wing conservatives, libertarians and left-wing liberals. He’s one guy who can come to Bush’s rescue in the event that it looks like a war will erupt over an open slot on the Court.

From John Hart Ely, Akhil Amar, Cass Sunstein, and Paul Finkelman, to Randy Barnett, Richard Epstein, David Bernstein, and Eugene Volokh, to Lino Graglia, Douglas Kmiec, Robert George, and Charles Fried…If he already has been confirmed to the 10th Circuit and can get that kind of coalition of minds behind him, I’d say he’s a sure bet—for a solid conservative—to get confirmed to the Court (but one of the few, perhaps the only real conservative I can think of, who I'd put my money on).

Update: My Dad writes:

Hey Jon,

It’s only me, but I wanted to say that John Hart Ely died recently (after his endorsement of McConnell, but you may want to note that if you use him in a prospective context). Also, as for the filibuster—it is here to stay. I believe that no court—especially the Supreme Court—would interfere with the internal rules of the Senate, which is what the filibuster is, because it would be a “political question” that the courts would never touch. The Senate could, in theory, change their internal rules and abolish the filibuster—but don’t court on it because it has become so much a part of the Senate system that neither out of power Democrats or overreaching in power Republicans would dare to abolish this ingrained institutional policy. Further, cloture (cuts off unlimited) is the existing remedy (60 votes) and it has been used successfully (in actuality or by mere threat) on a number of occasions. The 1964 Civil Rights Act was finally a reality due to the ability of non-Southern Democrats and a handful of liberal Republican Senators getting together to cut off unlimited debate with 60 or more votes. But, a constitutional challenge is not a realistic issue. Keep on blogging.

Dad

Rights: A doctrinal misunderstanding that has been politically useful for religious conservatives:

Liberal democracy is a “rights based” system of government. The United States, the first true and most prominent of the liberal democracies, was given birth to by the Declaration of Independence which states that the purpose of (all) government is to secure the “rights” of its citizens.

Understanding that is elementary. Understanding where rights come from and what rights are to be secured is rather a bit more confusing and given to doctrinal misunderstanding. Nowhere is this doctrinal confusion more apparent than in the sentiments of the religious right, especially when they claim that “rights” come from their Biblical God and try to determine from there, which rights are properly recognized.

Lon Mabon, Constitution Party candidate for Senate in Oregon and gay hating bigot (he’s the dude that was behind all of Oregon’s failed anti-gay propositions), illustrates his “understanding” of what “rights” are proper:

Let's refocus on homosexuality and look at it from God's perspective. If we are honest, it is impossible to view homosexuality and come away with any other opinion than the truth that homosexuality is sin. God's Spirit, through the Apostle, says this about homosexuality:
"For this reason God gave them up to vile passions. For even their women exchanged the natural use for what is against nature. (27) Likewise also the men, leaving the natural use of the woman, burned in their lust for one another, men with men committing what is shameful, and receiving in themselves the penalty of their error which was due. (28) And even as they did not like to retain God in their knowledge, God gave them over to a debased mind, to do those things which are not fitting;" NKJV, Romans 1:26-28

From God's moral point of view, the lusting of one man after another man or the lusting of one woman after another woman are passions of dishonor. These passions, these particular lusts, dishonor the moral quality of the human soul because they defy the "the natural use" and they are at the heart of the matter an act "against nature"-- as the Scripture says. Keep in mind that this is the same Nature that is referenced in the Declaration of Independence in the famous phrase "the Laws of Nature and Nature's God". Therefore, because the God who wrote these scriptures is also Nature's God, when you act against nature you are doing so because you are acting against God. Homosexuality, the lust and the act, stands in open defiance challenging the very moral purpose and design of nature and Nature's God.

If I can sum up Mabon’s argument it would be as follows. And let me point out, I am using Mabon’s sentiment as an anecdote for the general mindset of the religious right. This isn’t just what he believes. This is what they believe. For instance, I heard WorldNetDaily’s Joseph Farah, on his radio show make the same argument as to why George Bush was wrong to come out in favor of civil unions: To paraphrase him—“Rights come from God—God calls this an abomination! How can Bush, as a believer, support this?” I have also witnessed D. James Kennedy, Roy Moore, and Randall Terry make this exact same argument:

1) Rights come from God, 2) God has laid out what is and is not proper in the Bible, 3) If the Bible forbids something, and if rights come from God, then what is Biblically improper cannot be a “right.”

This sentiment, of course, has absolutely nothing to do with a proper understanding of the political philosophy of the Declaration. Let me clear up the confusion:

1) The Rights that Government Grants in its Positive Law—Political and Civil Rights—don’t come from God:

According to our founding philosophy, political and civil rights do not come from God; they come entirely from government. Our natural “unalienable” rights come from God. A good political system is one that secures, in the form of political and civil rights, those God-given natural rights. (Note: some of my new readers may be atheists or agnostics, or may, for whatever reason, object to the notion that rights come from God. My purpose is not to demonstrate that rights in actuality, come from God—who may or may not exist—but rather to examine the religious right’s claim, in lieu of the Lockean—Jeffersonian—Madisonian natural rights theory that founds this nation. And such a theory did hold that natural rights come from our “Creator.”)

2) Government is Free to grant “Positive Rights” that are not God-Given Natural Rights:

This distinction is not trivial. After government secures our God-given natural rights, such a government would be free to grant even greater political and civil rights that have nothing to do with natural rights, as long as those other non-natural rights, do not interfere with the natural rights that governments are obligated to recognize.

For instance, look at everything that government grants that goes above and beyond certain basic equal rights of citizenship and basic rights of liberty that government is obligated to protect: The right to a Social Security Check, to Medicare, to a public education, to a minimum wage, to a government pension….? What do these things have to do with something that God mandated in the Bible, or certain “self-evident rights” grounded in nature? Nothing. They are political rights that government is free to grant or not to grant unless it could be argued that granting such non-natural political rights interferes with the natural rights of the citizens, under which case, government could not do such (which, some or all of these things, indeed may do).

So even if Civil Unions for Gays, for example, did not qualify as a God-given natural right, they still may nonetheless qualify as a wholly government granted positive right—which government would be free to or not to recognize, provided that, government granting civil unions doesn’t wrongly interfere with the inherent natural rights of the citizens.

3) Nature’s God in the Declaration of Independence is not readily identifiable as the God of the Bible.

This is perhaps the weakest aspect of Mabon’s/the religious right's claim. Here’s the big issue that they have not been able to honestly confront: That God grants us unalienable natural rights is a doctrine that is nowhere to be found within the Bible. Such a “Truth” was “discovered” using wholly unassisted reason. So when exactly was this notion of “rights” “discovered” or “invented” (whichever you believe)? As Allan Bloom writes, “Hobbes initiated the notion of rights, and it was given its greatest respectability by Locke." Bloom, The Closing of the American Mind, p. 165.

More importantly, it is doubtful that the most important expositors of the “God grants us rights” theory were referring to the Biblical God, but rather a deistic, unorthodox, God of Nature (after all, they referred to him as “nature’s God,” not in orthodox, Judeo-Christian terms). So when Lon Mabon writes, “Therefore, because the God who wrote these scriptures is also Nature's God,” he is making a huge leap and arguably, a mistake in doctrine. Walter Berns, a social conservative whose scholarly credentials are beyond reproach, writes this nature’s God:

[T]he God invoked [in the Declaration of Independence] is “Nature’s God,” not, or arguably not, the God of the Bible, not the God whom, today, 43 percent of Americans…claim regularly to worship on the Sabbath. Nature’s God issues no commands, no one can fall from his grace, and, therefore, no one has reason to pray to him asking for his forgiveness; he makes no promises. On the contrary, he endowed us with “certain unalienable Rights,” then left us alone, and with the knowledge, or at least the confidence, that he will never interfere in our affairs. Moreover, he is not a jealous God; he allows us—in fact, he endows us with the right—to worship other gods or even no god at all. This right can best be secured—Jefferson, Madison, and the others insisted it could only be secured—under secular auspices, under a government that takes no stand on faith.

Berns, Making Patriots, p. 32.

This is a pretty unorthodox understanding of God, no? So when Howard Dean argued that his understanding of God was that He created homosexuals as homosexuals and accepts them for who they are, the religious right could argue that such an understanding of God is not Biblical (orthodox); but arguably neither is “nature’s God” as understood by the Declaration’s author, and by other very prominent founders. As I have written before, at least four out of the five men on the drafting committee of the Declaration of Independence rejected the notion of the Trinity, which is a paramount feature of orthodox Christianity.

Now, there were plenty of orthodox Christians around at the time of the founding, most of whom probably, like the evangelicals of today, supported the Declaration of Independence. And they, in supporting the Declaration, probably didn’t think they were paying obeisance to some non-Biblical God. As Berns writes:

[U]nlike Jefferson, Madison, and others, the majority of ordinary Americans at the time…probably…[took] it for granted that nature’s God, who endowed them with unalienable rights, including liberty of conscience, was the providential God of the Bible. However wrong as a matter of doctrine—where does the Bible speak of unalienable or natural rights, or of the liberty to worship or not to worship as one pleases?—this made good political sense in America.

Berns, Making Patriots, pp. 42-43.

As this passage implies, the potential doctrinal conflict between the duty demanding Biblical God and the arguably non-Biblical, rights granting “nature’s God” cannot be ignored. Berns’s point on “liberty of conscience” is paramount to understanding the dilemma of orthodox Christians who would argue that their God grants rights. Our natural and constitutional religious rights derive from the rights of conscience, which, according to Madison and Jefferson, are the most vital, the most radically unalienable rights. In Madison’s words, all men retain an "equal title to the free exercise of Religion according to the dictates of Conscience." Jefferson held that the God given rights of conscience extend to men who worship no God or twenty Gods, which is one of the sources of Berns’s claim that nature’s God “endows us with the right—to worship other gods or even no god at all.”

Yet, is this the God of the Bible who grants us the rights to worship no God or twenty Gods? The “Jealous” Biblical God seems to directly contradict this right—he expressly forbids the worshipping of false gods—in the First Commandment, the most basics of all basics. Elsewhere in the Old Testament, God commands that those who would proselytize others to worship “false Gods” are to be stoned to death.

I suppose that some on the religious right, aware of this potential inconsistency, will simply deny that non-Christian worshippers have any Constitutional religious rights (a fairly extreme position, even for the religious right—but Christian Reconstructionists, like Gary North, being truly consistent, would, in his first best Biblical world, have non-Christian worshippers executed for public proselytizing). However, it has become increasingly common for fundamentalists to claim that the reason why non-Christians have a right to worship in this nation is because this is a Christian nation, because their Christian God gives non-Christians the right not to worship Him. For instance, as Cathy Young reports, “On Hannity & Colmes, the Rev. Jerry Falwell, the prominent evangelical leader, asserted that it is precisely because America is a Christian nation that Jewish, Muslim, Hindu, or atheist Americans enjoy the freedom they do.” I have heard Roy Moore ditto that sentiment. But then, both of these men will turn around and claim that the Ten Commandments are unalterable moral law, of which all other law is subservient. Indeed, religious right scholars have proudly proclaimed that the entire Ten Commandments were part & parcel of the civil law of all but one of the colonies of this nation (not realizing that such practice contradicted the unalienable rights of conscience implicit within the Declaration, which was written many years after our puritanical colonial systems were established).

I haven’t seen anyone on the religious right even attempt to confront this contradiction. And if we accept that God grants rights to do things which He expressly forbids in the Bible, like worship false gods, then I suppose we could also accept that God grants gays the right to pursue their relationships.