Wednesday, March 31, 2004

Rights, God, & Allan Bloom:

The debate that I am partaking in over at Claremont regarding the “under God” in the pledge controversy has raised the issue of rights and God. Religious conservatives have attempted to get mileage out of the notion that the Declaration of Independence states that our “Creator” grants us inalienable rights makes the Declaration and our whole system of rights grounded in Christian theology. Allan Bloom, one of the most well respected conservative political philosophers, in The Closing of the American Mind, teaches differently. (Alan Keyes, who ought to know better because he studied under Bloom and counts him as his most important philosophical mentor, has stated that the Declaration’s invocation of a “Creator” makes it “a bridge between the Bible and the Constitution.”) The Bible nowhere speaks of unalienable political or civil rights; this doctrine has a wholly non-Christian origin. “Rights teachings” were first posited by philosophers who, for the most part, denied the (orthodox) Christian God, and did so to break with the traditional Christian understanding of nature. “Hobbes initiated the notion of rights, and it was given its greatest respectability by Locke." Bloom, The Closing of the American Mind, p. 165.

The "God" that grants us rights is "Nature's God," who, according to the philosophers, was not the God of the Bible, but a Deistic God. Nature's God is as close to a secular version of God as you can get. That's why, if the pledge refers to this secular version of God, the "under God," in there is defensible as ceremonial Deism.

Moreover, the knowledge that we have these rights comes from Man’s Reason, wholly unaided by Biblical Revelation.

From his reflection on the state of nature, Locke drew his formula of Enlightenment, with its particular combination of natural and political science. Its starting point is the untrammeled use of reason...Through unaided reason, man as man, as opposed to the man of this place or time, nation or religion, can know the cause of things, can know nature for himself.

Id, at 163-4.

[Enlightenment] provides the structure for the key term of liberal democracy, the most successful and useful political notion of our world: rights. 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, is an invention of modern philosophy (my italics). Rights...are new in modernity, not a part of the common-sense language of politics or of classical political philosophy.

Id, at p. 165.

This bears repeating: Rights are an invention (or a “discovery” if you will) of modern political philosophy. They are not derived from the Bible or Christianity (at least in a positive sense—as I will show later, Christianity did negatively influence the notion of rights; that is, “rights” were initiated as a reaction to the practices of orthodox Christianity, to weaken the power that religion had over society).

In order to found our regime, Reason had to assert her authority over Revelation.

It had to be, for, in order to have rulers who are reasonable, many of the old rulers had to be replaced, in particular all those whose authority rested upon revelation. The priests were the enemies, for they rejected the claim of reason and based politics and morals on sacred text and ecclesiastical authorities. The philosophers appeared to deny the very existence of God, or at least of the Christian God (my italics). The old order was founded on Christianity, and free use of reason simply could not be permitted within it, since reason accepts no authority above itself and is necessarily subversive... Id, at pp. 257-8.

Still, someone over at Claremont has attempted to put forth some scripture asserting that the Bible is the source of “rights”: "Where the spirit of the lord is there is liberty." - 2Cor 3:17. And in what context was liberty being referred to here? As an unalienable political or civil right? I don’t think so. There is no connection between this Bible passage and the notion of unalienable rights as understood by the initiators of modern politics, Hobbes, Locke, et al.

Once a political theory is formulated, it's always possible to go back and look for things in the Bible to support it. We could do the same thing with Marxism—all of those statements by Jesus condemning the rich, demanding that all one's money be given away to the poor, the communitarian lifestyle that Jesus led, etc. Indeed liberation theology has made a nice admixture of Jesus' and Marx's teachings. So Jesus is the source of Marxism?

If anything, rights teachings emerged as a reaction to the then understanding of orthodox Christianity posited by entities like the Catholic Church and the poster boy of Protestant orthodox Christianity, John Calvin. Let me once again cite what Walter Berns has written regarding Calvin: “For Calvin, liberty of conscience meant just that, and no more than that. If someone gave voice to his conscience, thus being heard or read by others, he might rightly be punished. So it was that, as the effective governor of his city of Geneva, Calvin had one of his anti-Trinitarian critics put to death.” Berns, Making Patriots, p. 42.

Keep in mind that Calvin understood the Bible as well as anyone else.

Christianity may very well be compatible with "rights" teachings in a way that other religions, say Islam, are not. Jesus did effect a separation of things spiritual & temporal and also stated things that would lead us to believe that secular government & Christianity are compatible: "Render unto Caesar..." and when they tried to make him a king, "My Kingdom is not of this Earth…" (But that's it; that's as far as Jesus goes. Separation of Church & State and inalienable rights didn't come until some one thousand seven hundred years later.) Islam does not teach the same. Muhammad was not only leader of Islam but also head of state. Therefore putting Islam through an Enlightenment may be more of a challenge than it was with Christianity.

And the U.S.—a nation comprised of many orthodox Christians—did come to accept and implement non-Christian Enlightenment Dogma. Many such Christians wholly accepted the “Truth” of the Enlightenment and didn’t see it as conflicting with the tenants of Christianity. For instance, John Witherspoon, a founder, a professor and president of Princeton University (then the college of New Jersey), was also a Presbyterian minister and is often referred to as a “Calvinist.” Witherspoon, during his sermons would synthesize Lockean political theory with orthodox Christianity. As Walter Berns notes,

Witherspoon could speak unreservedly of "natural liberty" and "natural rights"; and of the "state of nature" and like Locke…of its "inconveniences," inconveniences that caused men to leave it for the "social state." But in the same lecture he could admonish his listeners and readers to accept "Christ Jesus as he is offered in the gospel," for "except that a man be born again, he cannot see the kingdom of God." In a word, Witherspoon saw no conflict between the new political philosophy and the old religion, which is to say between the principles set down in the Declaration of Independence and what he understood as orthodox Christianity. Id, at p. 42.

Here is how Allan Bloom puts this into perspective: "When bishops, a generation after Hobbes's death, almost naturally spoke the language of the state of nature, contract and rights, it was clear that he defeated the ecclesiastical authorities, who were no longer able to understand themselves as they once had." The Closing of the American Mind, pp. 141-2.

Thus, the big question that is begged is whether “rights teachings” truly are compatible with the demands that orthodox Christianity makes of individuals or of society. Biblical Christianity certainly doesn’t demand the implementation of these politics. Moreover, Enlightenment principles flat out conflict with an understanding of Christianity that seeks to remake the nation, via the organs of the state, into an ideal Christian society.

And the Enlightenment greatly (and rightly in my mind) weakened the power that religion had over society:

Hobbes & Locke, and the American Founders following them, intended to palliate extreme beliefs, particularly religious beliefs...In order to make this arrangement work, there was a conscious, if covert effort to weaken religious belief, partly by assigning—as a result of a great epistemological effort—religion to the realm of opinion as opposed to knowledge. But the right to freedom of religion belonged to the realm of knowledge. Id, at p. 28.

For evidence of Bloom's last passage that I cited one need only look to the Virginia Statute on Religious Freedom and see how religion, i.e. religious beliefs, are almost always referred to as "opinion."

Finally, Bloom believed that the Enlightenment project that Hobbes & Locke initiated was done to break with the traditional Christian understanding of nature, via Aquinas. Here is Bloom on their “state of nature discoveries”:

Man was not provided for at the beginning, and his current state is not a result of his sin, but of nature's miserliness. He is own his own. GOD NEITHER LOOKS OUT FOR HIM NOR PUNISHES HIM (my emphasis). Nature's indifference to justice is a terrible bereavement for man. He must care for himself without the hope that good men have always had: that there is a price to be paid for crime, that the wicked will suffer. But it is also a great liberation—from God's tutelage, from the claims of kings, nobles, and priests, and from guilt or bad conscience. The greatest hopes are dashed, but some of the worst terrors and inner enslavements are dispelled. Id, at p. 163.

I tend to agree with Bloom that the understanding of nature posited by Hobbes, Locke, Jefferson & Madison, et al. did indeed break with the Christian understanding of nature. And a profound break it was indeed!
Clarifying gay marriage & federalism:

Chris Atkins at Semper Reformanda once again takes issue with my assertion that there may be a federal right to gay marriage (I’m glad someone is reading my blog): "I continue to assert that this is an unworkable and ultimately, unconstitutional approach to federal jurisprudence. Why? Because a federal 'right' is in reality an absence of specific power for the federal government to act in a certain area. We have a federal 'right' to free speech because the Constitution does not give power to Congress to regulate speech. We have a federal 'right' to own firearms because the Constitution does not allow Congress to regulate firearms."

Federal rights as an absence of power of the federal government? What about the validity of the federal government, through its courts, protecting rights of individuals against states that may infringe them? What about when a state doesn’t recognize free speech? Is it appropriate to file a lawsuit in federal court for federal First Amendment protection in this circumstance? What about the 14th Amendment? Does this not incorporate the first 8 Amendments of the Bill of Rights Against the states? What about the “Privileges or Immunities Clause” of the 14th Amendment? If there is a federal right to gay marriage, it is to be found there.

I once again turn to Randy Barnett’s Restoring the Lost Constitution. Barnett correctly notes that the Privileges or Immunities Clause, not the Due Process Clause, is the proper place for incorporating the Bill of Rights. Now in discussing natural rights, I have remarked that no government—federal, state, or local—may infringe on these rights. And that the 14th Amendment gives the federal government the authority to enforce these rights against the states. The response on the gay marriage issue is that marriage is not a natural right; it is a civil right. That may very well be true. But, as Barnett informs us in Chapter 3, "Natural Rights as Liberty Rights," the term “privileges or immunities” is broader than “natural rights” (that’s why “privileges or immunities” rather than “natural rights” was chosen for the 14th Amendment); it includes all natural rights as well as some non-natural positive rights.

So the question that is begged is, if the right to marry is not a natural right, is it one of those non-natural civil rights that is included in the “privileges or immunities clause,” that no state is allowed to abridge and that the federal government may justly rule over. If the answer is yes, the next question is whether a state’s refusal to allow a gay individual the right to marry the person that he or she loves abridges his or her civil right to marry.

And I think it would be reasonable, in lieu of what the courts have said about marriage, to view it as a civil right. As Andrew Sullivan recently wrote in the New Republic, “when the matter [of marriage] came before the courts, they really had no alternative but to address the matter in a civil rights context. ‘The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,’ wrote Earl Warren in Loving v. Virginia, the landmark miscegenation case in 1967. ‘Marriage is one of the “basic civil rights of man”...’ The right to marry whomever you wish is a fundamental civil right. That is not contestable in the history of this country's jurisprudence. Now you may argue that marriage is definitionally heterosexual and therefore such civil rights only apply to heterosexuals. But you have to make that case--that civil marriage as currently practiced and enforced is inherently heterosexual--before you can dismiss the notion that it is a matter of civil rights.”

(And by the way, Mr. Atkins, the federal courts have ruled that there is a "right to marry" in contexts other than interracial couplings. See Turner v. Safly and Zablocki v. Redhail.)

Mr. Atkins believes that marriage is a matter wholly reserved for state governments to decide: “The extent to which the states and the people sovereignly exercise that power--defining or redefining marriage as they see fit--should have no bearing on the federal justiciability of the marriage issue. It's a power reserved to the states and the people--period. If 49 states allow for ‘gay marriage’, it does not give warrant for the U.S. Supreme Court to step in and override the judgment of the 50th state that still holds to the ‘traditional view’ of marriage.”

Okay I follow this logic. I would add that, conversely, if marriage is either a natural right or a civil right, falling within the reach of the “privileges or immunities clause,” and if gay people have such a right to marry the person whom they love, then the Supreme Court, in theory, has the right to rule and force every state to recognize gay marriage, even if not one has yet to do so. I just don’t think that the Supreme Court should do this for wholly practical, not legal reasons. Waiting until an overwhelming majority of states recognize gay marriages, and then stepping in and ruling is a matter of timing –of “when” and not “if”—as opposed to right.

(Finally, I must point out that my post is full of “ifs”; that is, I have not yet decided whether there indeed is a federal right to gay marriage under the 14th Amendment. )

Tuesday, March 30, 2004

Locke as a heretic Christian:

I have made the assertion that John Locke, (America’s philosopher), rejected the Trinity. And I have been challenged on this assertion on another website. Let me make my case here.

Let me say at the outset that I think, at the very least, that Locke was a non-Trinitarian Christian. My own opinion is that he probably was nothing more than a Deist. And he may very well have been an atheist. Leo Strauss and his (non-Jaffaite) followers believe that Locke was an atheist, as are all true philosophers. (There is an interesting anecdote that I have heard regarding Strauss & this topic. One day someone asked him whether Descartes was a believer. He threw is hands up in the air and exclaimed something along the lines of “dammit, philosophers are paid not to believe in God!”) That God doesn’t exist is one of the supposed “esoteric truths” that philosophers have been passing down through the generations. And the fact that individuals presently are free to assert this and speak their mind on practically any issue is exclusively the result of the Enlightenment that Locke helped to usher in.

The “esoteric teaching” doctrine of the Straussians is highly controversial for obvious reasons. We can hardly see why, in the present age, philosophers have any real need or use for this doctrine. But that’s precisely the point. Today, where we can get away with saying practically anything, philosophers no longer need to speak in “code.” That Socrates was executed for attempting to speak the truth illustrates why philosophers needed to make use of this doctrine in the first place.

And Locke too had to beat around the bush (so to speak) regarding what he really believed. After all, one couldn’t so easily wear one’s atheism, deism, or non-Trinitarianism on one’s sleeve back then. This passage about Calvin from Walter Berns’s excellent book, Making Patriots, illustrates why all this is so: “For Calvin, liberty of conscience meant just that, and no more than that. If someone gave voice to his conscience, thus being heard or read by others, he might rightly be punished. So it was that, as the effective governor of his city of Geneva, Calvin had one of his anti-Trinitarian critics put to death.” p. 42.

Denying the Trinity was just flat out dangerous back then, so I don’t know if I can produce a “smoking-gun” regarding Locke’s anti-Trinitarianism. But let me point out a few things. First, in The Reasonableness of Christianity, Locke seemed to question the doctrine of the Trinity. So much so that leading pro-Trinitarians accused him of anti-Trinitarian heresy: “Among his critics was Bishop Stillingfleet who in his Vindication of the Doctrine of the Trinity attacked” what Locke wrote in The Reasonableness of Christianity, arguing that anti-Trinitarian inferences could be drawn from what Locke wrote.

Second, on scientific as well as religious matters, Locke was greatly influenced by his friend Isaac Newton, who clearly denied the Trinity. “In the early 1690s [Newton] had sent Locke a copy of a manuscript attempting to prove that Trinitarian passages in the Bible were latter-day corruptions of the original text. When Locke made moves to publish it, Newton withdrew in fear that his anti-Trinitarian views would become known.” It was even rumored that Newton and Locke together anonymously authored a pamphlet attacking the Trinity.

Finally, in his later years, Locke became a Unitarian. And Unitarians generally rejected the doctrine of the Trinity. Unitarians were the archetypical “liberal Protestants.” There was a point where liberal Protestantism morphed into Deism. And Unitarianism often served as the place where this would occur. (For instance Jefferson at times called himself a “Christian,” a “Unitarian,” and a “Deist.”) Unitarianism was and continues to be an organization of folks who bucked orthodox Christian convention.

I don’t think that the religious conservatives or orthodox Christians of today are right to claim folks like Locke, Jefferson, or the “liberals” of that day. Most of these Enlightenment influenced individuals were either religious skeptics and/or members of liberal Christian Churches like the Quakers, or Unitarians. I think the present day liberal Protestant Churches (for instance, the folks who appointed Gene Robinson), or the Unitarians and Quakers of today are the true descendents of the “liberals” of the Founding period.

Monday, March 29, 2004

Van Halen Reunites:

I’ve been out of the loop. Today is the first day, I’ve heard of this. Sammy Hagar is back as the front man and Van Halen are going on tour. Van Halen have been without a singer since their attempt to replace Hagar with former Extreme singer Gary Cherone failed.

It makes sense that this would happen eventually. There is just too much $ to be gained by reuniting and touring. And as between David Lee Roth and Sammy Hagar the band made the right choice (Roth would reunite with them in a second).

If you ask most folks which Van Halen era they prefer—the Roth or the Hagar—most choose the Roth era. It is still nonetheless possible to agree with that and believe that Van Halen are better off now with Hagar.

First, Roth is a “class A” jerk, and a wacky one to boot (BTW, anyone catch is guest appearance on the Soprano’s last night? He played himself and sat in on Tony Soprano’s card game). Sammy & the band did have some pretty big issues that resulted in their first break up, but they are much more likely able to get along for the immediate future with Hagar.

Second, Hagar is a much better singer and musician. Hagar clearly has a better voice, better range. And his voice has held up better over the years. Many of you who prefer Roth to Hagar might disagree. However, this is not a matter of “opinion,” but of “technique.” I know not everyone completely understands this, so let me elaborate: You might prefer the sound of Roth’s voice, think it much “cooler” than Hagar’s, but from a purely technical matter, Hagar is a still better singer. For instance, Freddy Mercury technically was a better singer than John Lennon—this is not a matter of debate, its like saying Barry Bonds hit more home runs that Mark McGuire. But you may still prefer the sound of John Lennon’s voice to Mercury’s (as many do). Similarly Eddie Van Halen, from a technical standpoint, is a better guitar player than Eric Clapton, but you may still prefer Clapton’s playing to Van Halen’s.

I think the reason why many folks prefer the “Roth” era than the “Hagar” has less to do with Roth and more to do with the band at that time. They were younger, had more creative energy, chemistry, and wrote better, cooler songs with Roth. And I think it was the rest of the band who supplied the creativity, the talent and basically carried Roth. I’m pretty sure that the band wrote all of the vocal melodies for Roth, but didn’t need to do so for Hagar (as I said, Hagar is just a better musician).

Roth I think is dependent on other folks, other musicians for the creative material that he performs. This isn’t so rare; Frank Sinatra never wrote any of his songs. Roth, initially after leaving Van Halen had two great solo albums that sounded more like “classic” Van Halen than the stuff Van Halen were doing with Hagar. But Roth also had a spectacular back-up band to carry him along, consisting of guitarist extraordinaire Steve Vai (who can play circles around Eddie Van Halen) and bassist Billy Sheehan. As it was with Van Halen, it was they, not Roth who supplied the creativity, the energy, and the music.

But after those two albums, Vai and Sheehan left, and Roth’s career basically went into the toilet. He just couldn’t pump out the good songs anymore, and his voice took a turn for the worse. At the same time, Van Halen were consistently producing better material with Hagar. In the end, Van Halen ended up as a success without Roth and he failed without them.

Saturday, March 27, 2004

The Pledge:

Regarding the Pledge case that the Supreme Court just heard, I think the only plausible ground that can be made that “under God” is perfectly consistent with the Establishment Clause is that the reference reflects “ceremonial deism,” which is, for all practical purposes, a secular reference to God. "Nature’s God," referred to in the Declaration was an example of ceremonial deism, as was the invocation of “Almighty God,” in the Virginia Statute for Religious Freedom. Our public institutions are secular; this is what it means to live in a (small l) liberal state. Therefore, if I believed that “under God,” was an affirmation of our Christian heritage, I’d argue that it should be scrapped.
Jonathan Rauch’s new article on gay marriage & federalism:

Jonathan Rauch’s new article in the Atlantic Monthly convinces me that the federalist approach to gay marriage is the right one. In an ideal world, it would be nice if gay marriage were recognized in every state. And adopting the federalist approach will not prevent that from occurring; on the contrary, it will help to bring gay marriage in every state…eventually. The best way to get from point A (where gay marriage exists in no state) to point B (where gay marriage is recognized in every state) is to do it gradually, step-by-step, where we allow states voluntarily, on their own accord, to implement gay marriage. I’m not going to argue this point any further, I’ll leave that to Rauch (who does it better than I ever could). I will add that I have written that if gay marriage is a right that belongs to all gays in all states, and if it is a right that the Federal courts may justly rule over, there is a right “time” for the Supreme Court to come in and establish this right—after the overwhelming majority of the states have voluntarily, on their own accord, adopted gay marriage.

I do want to point out my favorite passage in Rauch’s article:

And notice how the terms of the discussion have shifted. Now the anticipated problem is not sudden, catastrophic social harm but subtle, slow damage. Well, there might be subtle and slow social benefits, too. But more important, there would be one large and immediate benefit: the benefit for gay people of being able to get married. If we are going to exclude a segment of the population from arguably the most important of all civic institutions, we need to be certain that the group's participation would cause severe disruptions. If we are going to put the burden on gay people to prove that same-sex marriage would never cause even any minor difficulty, then we are assuming that any cost to heterosexuals, however small, outweighs every benefit to homosexuals, however large. That gay people's welfare counts should, of course, be obvious and inarguable; but to some it is not.

That last line speaks for itself. Indeed Mr. Rauch, indeed.

Wednesday, March 24, 2004

Original Meaning of the Establishment Clause

Mr. Sandefur over at Freespace has an excellent remark commenting on the original meaning of the Establishment Clause. He was reacting to a post by blogger Unlearned Hand who is putting forth the notion that since the Establishment Clause only applied to the federal government, it was intended to preserve and encourage the ability of the states to establish their own religions and intermingle Church & State in a variety of other ways, (or not).

In fact the Framers, or at least Madison & Jefferson, wanted Church & State separated at the state level (in all states) as well as at the federal level. Yet, they couldn’t achieve this. Tim writes, “as with slavery, religious establishment was an issue that the framers did not have the political power to face head on at the federal level.” This analogy is spot on. “Attempting to abolish religious establishments by federal law—which, by the way, Madison did attempt—would simply have been an impossible task, and the framers of the Bill of Rights instead settled for a federal hands-off approach, with the liberals hoping that at some future time, the states would abolish religious establishments on their own.”

I wrote about this topic as a guest blogger on Freespace here, here, and here.

Unlearned Hand has an excerpt from the Mass. Constitution taken from the time of the Founding, that demonstrates that they clearly demolished the line between Church & State:

[T]o promote their happiness and to secure the good order and preservation of their government, the people of this Commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several Towns, parishes, precincts and other bodies politic, or religious societies, to make suitable provision, at their own Expense, for the institution of Public worship of God, and for the support and maintenance of public protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.

It is important to note that the religion clauses of the First Amendment are derived from the natural right of liberty of conscience. These are rights that no government, federal, state, or local may properly infringe. If you want to take a gander at what, according to Madison & Jefferson, state governments must do in order to secure the equal rights of conscience, check out Virginia’s Statute for Religious Freedom penned by Jefferson and pushed through by Madison. Yes, what Mass. had in its constitution was permitted under our original Constitutional order. Yet to Madison & Jefferson, what Mass. did violated the rights of conscience of its citizens and was as much a violation of natural rights as was slavery, which was also permitted at the time.

Tuesday, March 23, 2004

Exchange Reply:

My friend Roger has written a very thoughtful reply to our exchange on religion and the Founding…

Hi Jon,

Thank you for taking time from your busy life to write to me. I have David McCullough's splendid biography of John Adams, which I confess to not yet having completed (my failing eyesight makes this very difficult), but I've read enough to know that Adams was regarded as "The Colossus of Liberty" by his peers at the Continental Congresses. He was by all accounts one tough cookie who always put principle before persons. McCullough's admiration for him and his wife Abigail seems boundless. Jefferson may have despised the Alienation and Sedition Acts, but I doubt very much if he ever fully despised Adams the man.

Thanks for the Claremont Institute reference. I shall look into it.

My own faith is a stubborn thing that has served me well, so I am disinclined ever to desert it, but you ought to know that I hold the, perhaps eccentric, view that anyone who practices decency and engages in ethical conduct is a de facto Christian from what I have seen, that would include you. The many hypocrites and fools who loudly profess faith in Jesus Christ and use this as a justification to revile and persecute those who are not exactly like them are anything-but Christians, as I believe Jesus meant us to be. “C.” [that fundamentalist interlocutor of ours] of course, cannot allow herself to hold this view, but she is NOT mean-spirited, just terribly concerned about the state of the world being an open invitation to disaster. I suppose my friendship with her may seem almost disloyal to you, but I am fond of C. and firmly believe we should all be in the business of trying to bridge gaps and promote every conceivable reason for loving and enjoying one another, instead of always trying to be "right" at someone else's expense.

Impossible, I'm sure, but worth a try, nevertheless.

I'd like to look into any specific references you might know on Adams and other "believing" Founders v. Jefferson and Madison on religion and the nascent constitution. I would still insist that if the pure Hobbseans had known what Islam and other bizarre African and Oriental religions had really stood for I doubt if they would have offered them carte blanche to do their damnedest.

There is a tendency among skeptics and pure rationalists to dismiss religious "superstitions" as quaint, harmless relics of a dying way of life. I don't believe this is so, since the ideas and ideals on which we choose to pin our hopes have such profound ability to influence events and even foment radical changes in the course of history. It is wise to be very careful of "ideas;" they are after all the root of all activity and invention.

Bad ideas are certain to promote destructive activity, but even good ideas when twisted to suit the purposes of deceitful demagogues can be used to evil ends.

There is nothing new about this observation which has been in play for several hundred years before the birth of Christ.

"Democracies are most commonly corrupted by the insolence of demagogues."

Aristotle (382- 322 B. C. )

And Jefferson, himself, had this to say along these same lines:

"In every government on earth is some trace of human weakness, some germ of corruption and degeneracy, which cunning will cultivate, and improve. Every government degenerates when trusted to the rulers of the people alone. The people themselves are its only safe depositories. And to render even them safe their minds must be improved to a certain degree."

Thomas Jefferson (1743-1826)

The last sentence surely indicates the need for a populace to be properly-educated and fully informed, if it is to be relied upon to make good decisions on it own behalf, which is why I have always favored the use of literacy tests and proven knowledge of basic history and current events as a prerequisite for being given the privilege of voting. Terribly undemocratic, to be sure, but as I never tire of saying, the United States is NOT and was never intended to be a democracy. It is a Republic, which prescribes rule by a presumably educated elite chosen by the people to represent them. The Founders had a healthy fear of being governed by "the mere whim of the populace" as Alexander Hamilton put it a view with which I see no reason to quarrel.

Monday, March 22, 2004

Exchange on Religion and our Founding:

Here is a letter that I received from a friend named Roger (real first name, not disclosing his last name to protect his anonymity). My response follows:

Hi Jon,

You have told us something of Jefferson, whom I knew to hold the Church in some disdain, but you have said little yet about John Adams, who remained a devout Christian all his life. Is there a handy record of any public arguments Adams must have had with Jefferson and others on this issue? Was Adams ignored, hooted down, or did he come actually to agree with Jefferson's point of view in the end?

Here is Adams expressing some of his ideas for celebrating Independence Day before it became known as "The Fourth of July:"

"The second day of July, 1776 will be the most memorable epoch in the history of America. I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival. It ought to be commemorated as the day of deliverance by solemn acts of devotion to God, Almighty. It ought to be solemnized with pomp and parade, with shows, games, sports, bells, bonfires and illuminations from one end of this continent to the other, from this time forward forevermore. You will think me transported with enthusiasm, but I am not. I am well aware of the toil and blood and treasure it cost us to maintain this Declaration [of Independence] and support and defend these States. Yet through all the gloom I can see the rays of ravishing light and glory. I can see that the end is worth all the means; and that posterity will triumph in that day's transaction, even tho [sic] we should rue it, which I trust in God we shall not."

- John Adams (1735 - 1826)

Adams was an equally important influence in our founding as Jefferson, though not as popular or well known.

I received your Jefferson quotation about the need to include ALL religions in our Bill of Rights, but earnestly believe he and the other founders could not possibly have known what they were talking about when they gave Mohammedanism and other bizarre occult creeds constitutional protection, because the essence of Islam, as we have learned to our sorrow, is diametrically opposed to the very principles the founders sought to establish, while Christianity is not.

I too reject the modern fundamentalist brand of "Christianity" embraced by our friend C. [an interlocutor of ours], but I probably disagree with you in that I firmly believe in the concept of "Social Christianity" (my term) which recognizes that even those atheists and other avowed skeptics and non-believers brought up in a predominantly Christian society do in the main develop what-I-would--have-to-call a Christian Conscience as if by osmosis. Without the subtle-but-ever-present influence of Christianity we would soon lapse into barbarism.

And, if Moses did not receive the Ten Commandments directly from the mouth of God, as stated in Scripture, he surely got them from searching the depths of his own soul and by using good old-fashioned Common Sense. The Decalogue surely IS the basis for English Common Law and subsequently our own system of Jurisprudence. The Decalogue is eminently humane and based on Common Sense.

Fundamentalism is virulently anti-intellectual, as we know, and Christianity as largely practiced in Mediaeval and Renaissance Europe had developed into just another cruelly corrupt system of wielding power over the masses, which is what all long-established practices tend to do once they become powerful. The questions we need to ask, however, is what do we really mean when we use the term "God" before we decide to reject Him? Few ever bother to think that through.

In my admittedly eccentric view, "God" is a catch-all term we use to identify certain primary motivating forces without which life, as we know it, would be impossible. But, this does not meant that "God" is a mere invention of the human intellect, because whenever one goes back far enough and digs deeply enough, one can never get past the question of how the elements came to be formed in the first place, and why was human life imbued with consciousness, imagination, humor, a capacity for developing a conscience and an insatiable desire for knowledge and greater understanding?

Whatever else one can say, the fact remains that WE DID NOT CREATE OURSELVES, nor did we create the world in which we live. That leads me always to one inescapable conclusion: There is an Intelligent Force at work which is greater by far than the human mind. Just looking at the beauty, perfect symmetry and infinite variety of a random sampling of hexagonal snowflakes under a microscope is enough to tell me that.

Facts are great as far as they go, but it is our need and ability to interpret facts and to discover their origins and reason for being that makes us special and significant.

Good night, my friend.

All the best,


My response:

I'd have to do some research regarding Jefferson's communications with Adams. I know they did communicate—write letters, etc.—throughout their lives. And I also know that Jefferson came to despise what Adams did during his presidency where Adams supported Alien & Sedition laws that Jefferson thought to be grossly unconstitutional.

As to whether our legal order was initially intended to protect the religious liberty of non-Christian religions, Jefferson & Madison, and others who were disciples of Locke, thought it necessary to protect non-Christian sects because (all) "religion," we now learned, was a matter of "opinion," as opposed to "knowledge," (what it used to be under the old order). And this in turned required a "separation of Church & State" that consigned "religion" to the private sphere of life.

Now, some/many founders probably didn't hold to this view and wanted the rights of religious liberty & conscience applied to Christians only (perhaps only to Protestants). Similarly many back in the day took it for granted that the "Creator" in the Declaration was the God of the Bible. Yet, the Bible is NOT the source of "rights" theory. And the originators of "rights theory"—Hobbes, Locke, et al.—clearly denied the Christian God.

I know this can get complicated. Michael Novak criticizes this view that I posit (he's actually criticizing what Walter Berns has written, and I get much of my argument from Berns), that the Founders were doing something, "disguised" by implementing Locke's view while trying not to seem like Heretics. Allan Bloom has written that our Founders followed Locke, et al., but he hinted that some of them might not have completely understood what they were doing. Jefferson, Madison, and others certainly understood. But some, the ones who were devout orthodox Christians, might not have.

The Founders, who by in large accepted the philosophers’ state of nature teachings and acting consistent with them (for instance, securing the “consent of the governed”), did have to “sell” Locke’s teachings to a public constituted by many orthodox Christians. And obviously, the Founders were successful. They sold to a Christian public ideas that clearly were non-Christian (in their origin). Enlightenment theory was so convincing that orthodox Christian ministers incorporated such teachings into their sermons. The following passage from Berns's Making Patriots about John Witherspoon—a founder and a Presbyterian minister often referred to as a “Calvinist,” who was the President and professor at Princeton University (then the College of NJ) and taught many of our founders including Madison—is telling:

“Witherspoon could speak unreservedly of ‘natural liberty’ and ‘natural rights’; and of the ‘state of nature’ and like Locke…of its ‘inconveniences,’ inconveniences that caused men to leave it for the ‘social state.’ But in the same lecture he could admonish his listeners and readers to accept ‘Christ Jesus as he is offered in the gospel,’ for ‘except that a man be born again, he cannot see the kingdom of God.’ In a word, Witherspoon saw no conflict between the new political philosophy and the old religion, which is to say between the principles set down in the Declaration of Independence and what he understood as orthodox Christianity.” p. 42.

This in turn brings to mind something that Allan Bloom wrote in The Closing of the American Mind: “When bishops, a generation after Hobbes’s death, almost naturally spoke in the language of the state of nature, contract and rights, it was clear that he had defeated the ecclesiastical authorities, who were no longer able to understand themselves as they once had.” p. 141.

There are some today who attempt to act as a bridge between Enlightenment Era "rights" teachings and orthodox Christianity claiming that "Reason & Revelation" largely agree on matters and that Christianity properly understood is perfectly consistent with, even demands, a Lockean order.

Locke did say, as does the Declaration repeating him, that rights ultimately come from God. And this is one thing that orthodox Christians use to attempt to connect their theology with our Constitutional order. The problem with this is Locke's doctrines are nowhere to be found in the Bible, and Locke appealed to Reason, unaided by Revelation in order to “discover” these principles.

If Christianity properly understood means informing religious beliefs by Reason unaided by Biblical Revelation and perhaps even taking passages of the Bible with a grain of salt in order to incorporate new teachings, then I'd say that yes, Christianity is compatible with our Enlightenment order (this sounds similar to your version of Christianity). But if Christianity properly understood means a literal interpretation of the Bible, and that's all you need for all of the answers, (C.'s kind of faith), then I'd say that this form of the faith has little or NO connection with our Founding order.

I think the bottom line is this: Our founders implemented a Lockean order. Many of our founders were devout Christians and intended "rights" to be granted to Christians, perhaps Protestants only. And they probably took it for granted, without any real religious doctrinal support, that the "Creator" was the Biblical God. But the philosophers they followed denied the Christian God and did intend to go further and consign religion to the private sphere and grant rights to all religions, giving Christianity the same legal status as "Hinduism." (At least this was the ideal, even if that ideal couldn't reasonably be implemented at that time). And some of the founders—Madison, Jefferson, Mason, perhaps they were a MINORITY* of founders—knew exactly what they were doing. So to whom do we give proper interpretive authority? The philosophers who formulated the ideas that our Founders implemented and the framers of our founding documents who best understood them. Or the other framers (perhaps they were a majority*) who wanted to implement a "half-digested" version of rights theory that applies them only to White Christian Protestant Propertied Males.

* I don’t mean to endorse the notion that Madison's & Jefferson’s views weren’t dominant. I am merely raising that possibility.



Sunday, March 21, 2004

New Add, Old Pic:

In case anyone is curious as to what I look like, I just added a permalink to a pic of mine (you need a Yahoo account). I’ll probably be adding a different one soon. You see this pic, cool as it is, really doesn’t represent the “image” that I portray (I don’t exactly look like an attorney/prof. in it). So why did I include it? Because I like it. It was taken when I was in my mid 20s and visiting my best friend who was an undergrad at Penn State Altoona. My next pic will be more current.

Update: As it turns out, you don't need a Yahoo account to view the pic.

Saturday, March 20, 2004

Libertarian broad:

I’ll soon be adding a permalink to Illana Mercer. Her Rothbard inspired version of libertarianism (complete with the Lincoln bashing) isn’t quite my cup of tea—but any libertarian who is an avowed fan of the progressive rock group Dream Theater and can rattle off shred guitar players deserves a link in my book.

Here’s Peter Brimelow reviewing Illana Mercer’s new book, Broad Sides, where she discusses her interest in rock guitar virtuosity and laments that they don’t have the popular appeal of say, Brittany Spears (Brimelow quoting Mercer): “[T]he true finger-blistering, almighty Fender-benders [this seems to be something to do with guitar playing (yes Mr. Brimelow, Fender is a guitar company)] remain in the musical closet… Tony MacAlpine, Yngwie Malmsteen, Eric Johnson, Vinnie Moore, Steve Morse and, of course, Sean Mercer. Recordings of their furious licks will be missing from the stores and the airwaves so long as consumers are willing to pay for stuff that sounds as if it was produced after three lessons with a bad tutor.”

Thanks to Julian Sanchez for the mention of Posner on Spawn. The title to his post, "Law and Demonomics" is just priceless.

Also thanks to Jacob Levy over at Volokh for linking to Julian's post and directing the readers to "follow the links," one of which leads to me.

Thursday, March 18, 2004

Comic books and copyright law:

These are two subjects that greatly interest me—I’ve been collecting comic books since the age of 12, and I teach copyright issues in several of my college courses. Two important figures in the industry, Todd McFarlane and Neil Gaiman have been squabbling over the legal ownership of some comic book characters created for the “Spawn” series. (Remember the movie? I’m trying to forget it). I just read the decision, Gaiman v. McFarlane, written by the mighty Judge Posner, in which Gaiman won. As someone on another website has remarked, “It's worth the read just to hear Judge Posner tell us the legend of Spawn.”

Some background is in order. Comic book characters, like the Disney and Warner Brother Cartoon characters, are copyrightable. Most well known comic book characters come from just two companies: Marvel—who owns heroes like Spiderman, the Hulk, the X-Men, the Fantastic Four, etc., and DC— who have Superman, Batman, Wonder Woman, Green Lantern, etc. And those two companies make sure that when a character is created for them, they own it outright. This has led to some major resentment among the talent who create the characters, only to have to relinquish all of their rights to them (sometimes the talent are well-compensated, yet there are many horror stories—for instance, the two fellows who created Superman and hardly saw dime one. But that’s a whole ‘nother story entirely).

Spawn comes from neither of these two companies, but rather from Todd McFarlane’s “creator-centered” Image, which emerged because creators were feeling exploited by big business. Here is a description of the fundamental principles behind this company that McFarlane began with several other talent who were “hot” at that time: “Image would never own a creator's property, and Image would never interfere creatively or financially with any of the creators whose work it published. Even today, all the partners agree that Image was always more about freedom than about money.”

Yet, there can be major drawbacks with this new way of doing things. For instance, what if Superman were created by one party and Lois Lane by another, each creator owning the characters outright? What if Lois’s creator wants to leave the company and take Lois with him? The solution seems to be to have each creator be responsible for creating his or her entire comic book universe. And this has generally worked. (For a good example of this and a good read as well, check out Kurt Busiek’s Astro City).

(There is another side note that is the subject of another story: Many of these "creator-own" independent books—even those done by top industry talent—failed to work out without the backing of Marvel or DC. Consequently many of those creators have gone back to work for the two big guns, or have sold their independent creations to Marvel or DC!)

However, even when creators assume responsibility and control over their creations, as this case indicates, unanticipated ownership problems can still emerge. In Gaiman v. McFarlane, Neil Gaiman was hired as guest writer for Todd McFarlane’s Spawn. McFarlane is a writer, artist, and a creator. He created Spawn, a best seller. But McFarlane is more talented as an artist than a writer. So, in trying to better his product, he would hire various top-tier writers to script issues of Spawn that McFarlane would draw. In just one issue, Gaiman had helped McFarlane introduce into the “Spawn Universe” three pivotal characters—“Medieval Spawn,” “Angela”, and “Count Cogliostro.” And the 7th Circuit just declared that Gaiman co-owns the copyright in those three characters and is owed an accounting for all subsequent uses of those characters, most in books that Gaiman had nothing to do with.

You see, in keeping in line with Image’s creator-friendly policy, there was no official intellectual property policy. But, you may ask, if Image hired Gaiman to write one of its already existing books, wouldn’t the company, or McFarlane, automatically own all of its content? No. Under copyright law, there is a doctrine known as work for hire. Under this doctrine, a company who hires an author to do creative work for it automatically owns the work if (1) the author is an employee doing the work within the scope of employment, or if not, (2) there is an explicit written agreement that the work is a “work for hire.” Here Gaiman was not “an employee” of Image; rather he did his work as an independent contractor. Thus, there needed to be an explicit written agreement that the work was a “work for hire.” And there was no such agreement. So Gaiman who helped create and introduce those three characters, co-owns them. All of this could have been avoided if McFarlane had a copyright policy more like Marvel’s or DC’s or at least some policy that could anticipate these types of issues which, looking back in hindsight, seem inevitable that they would occur.

Wednesday, March 17, 2004

Superboy: Offspring to Homosexual Parents, Superman & Lex Luthor:

It’s no joke. Superman and Lex Luthor have had a baby together and his name is Superboy. This is what DC Comics has actually done with the Superboy character.

What a perfect illustration of cutting edge bioethical issues. (And although I am not a big follower of this debate, from what I have read and from my philosophical leanings, I come down more on the side of Ronald Bailey than that of Francis Fukuyama or Leon Kass.) Genetic engineering may do for gay equality what civil rights laws and gay marriage couldn’t even do: truly make homosexual couples the equivalent to heterosexual ones. Even if gays receive full and equal legal rights, marriage and all, nature still has given gays one handicap that the law can’t do anything about—the inability of same sex couples to make a baby together. But science—in its ever-successful ability to enable us to rise above the limitations that nature places on us—may soon allow gays to overcome this natural hurdle. Take a fertilized egg, strip it of its genetic material, insert 50% of the genetic material from one same-sex parent and 50% from the other, and viola, two men or two women can have their own baby together.

And this is very similar to how Lex and Clark have had theirs, Superboy. Before I get to the main point, let me fill you in on some background details. Originally, Superboy and Superman were one and the same. Clark Kent, as a young teen, had become Superboy and then eventually grew up into Superman. Then in the mid-80s DC Comics—through its miniseries “Crisis on Infinite Earths”—had rewritten much of its history. In 1986, following Crisis, Superman had his history revamped by creator John Byrne, and much had changed. Now Superman never was Superboy. Lex Luthor (pre-Crisis) went from being a mad scientist who lost his hair in a lab accident (that he blamed on Superboy) to (post-Crisis) a ruthless businessman (who began shaving his head after suffering from gasp, male pattern baldness), and who now happens to be President of the United States in the DC Universe. And many other interesting changes were made as well.

In the 1990s, DC decided to kill off Superman, but of course, he really didn’t die. But when we thought Supes was dead, a bunch of scientists—part of the Cadmus Project of Star Labs—set out to preserve the Man of Steel’s legacy by cloning him. The cloning was at first unsuccessfully so what the scientists did was take DNA from a human donor and splice 50% of Superman's DNA in with it. And the experiment worked. Superboy was born and was artificially aged from an infant to 15 years old in a matter of days. It has just been revealed in the Teen Titans series that the human donor was none other than Lex Luthor. So Superboy’s DNA is derived 50% from Superman's, 50% from Lex Luthor's.

With his fathers being archenemies, all I can say is talk about a dysfunctional family!
Ban on Gay Marriages can be seen as even more cruel and unfair than the ban on Interracial Marriages:

The traditionalist right claims that race and sexuality are different in that race involves a wholly unchosen and unchangeable characteristic whereas sexuality involves at least some sort of behavior and choice. There is some truth in this; an honest perspective would hold that one’s sexual orientation is unchosen and unchangeable (similar to the way race is), but how one ACTS on that orientation does put us in the realm of choice. Someone who is homosexually oriented can always do his best to refrain from any such activity and struggle with living a celibate lifestyle (or God forbid, get married and attempt a heterosexual lifestyle—but any honest person should realize that this is simply a recipe for disaster).

Yet, comparing “sexuality” with “race” is NOT the same as comparing same-sex couplings with interracial couplings. There is a subtle but meaningful difference. Just as sexuality involves some element of choice, so too do interracial couplings. When two people of mixed races are involved in a relationship or a marriage, this involves choice and behavior. After all individuals can always choose to pursue sexual and romantic relationships with members of their own race only. And every time the sexual act between individuals of different races is done, a choice is being made.

Seen in this respect, interracial couplings involve far more of a choice than same-sex ones. Sure some individuals, by no fault of their own, may find themselves in love with members of a different race. Or, many may have some sort of predilection or preference for members of a different race. But there are very few, if any, who have an exclusive “extra-racial sexual orientation,” that is, being capable of finding their better half ONLY in members of a different race.

When anti-gay marriage activists respond to the pro-gay claim that homosexuals are being denied the right to marry, it is claimed that gays, like everybody else, have the equal right to marry members of the opposite sex. The same argument was made regarding interracial couplings: You have every right to marry members of your own race. And this prohibition applies equally to whites as it does to blacks. No one group has greater rights than the other.

Yet, it was clearly cruel and unfair to deny two individuals who love and want to commit to one another, the right to marry simply because they are of mixed races. And keeping in mind the exclusiveness of a homosexual orientation that really has no counterpart in those who might prefer interracial couplings, we can see how it is even more cruel and unfair to deny marriage to same-sex couples: At least a person who has been in love with a member of a different race has a fighting chance of finding someone in his or her own race to fall in love with and build a life together. Yet a homosexual person has no chance of being able to forge a meaningful marriage with a member of the opposite sex. This is why Andrew Sullivan and Jonathan Rauch argue that gays want the right to marry someone in a meaningful sense. Because right now, gays don’t have the right to marry anyone in a meaningful sense. The ban on interracial marriages never impacted whole groups of individuals in such a broad and sweeping way.
An Interesting Law Review Article:

Lawrence Solum over at Legal Theory has an abstract on what looks like a very interesting law review article comparing the traditional prohibition on interracial relationships with the one on gay relationships:

Understanding the sexualization of interracial relationships in the past illuminates the attitudes prevalent today towards same-sex couples and the continued opposition to same-sex marriage. This Article compares heterosexual mixed-race and same-sex unions (including both mixed-race and mono-race couples) in the context of history, both legal and cultural. The history of opposition to interracial marriage in this country is replete with sexual undertones. Mixed-race couples were viewed as sexually perverse, and the ban on marriage and sexual relationships in the States served to run these human connections underground, making them secret, closeted and sinful liaisons. In the courts, arguments were made to oppose the abolition of mixed-race sexuality and marriage that are similar to arguments currently brought forth to prevent same-sex marriage. In particular, opponents of mixed-race marriage - like current opponents of same-sex marriage - were concerned with biblical creed, natural law, and with the raising of future generations of Americans. This article also examines the real-life similarities between couples whose marriages break race taboos and couples whose marriages break gender taboos. Even recently, when mixed-race marriage has been legal for over three decades, many mixed-race couples encounter problems that should persuade skeptics that the analogy between same-sex love and mixed-race love is not just a glib legal argument. The sexualization of mixed-race couples served the same end it does for gay couples today, including making the deprivation of marriage rights seem fair. Due to sexual stereotyping, the "privilege" that allows only some couples to marry does not have to be understood as a "structured advantage;" instead it is seen as "deserved and fair."

Tuesday, March 16, 2004

More on Gay and Interracial Marriages:

At Freespace, Tim has an excellent post on gay marriage and interracial couplings that is in line with what I’ve been writing on this issue.

He references a National Review Online article that warns us that the Supreme Court could find a right to gay marriage under the Equal Protection and Due Process Clauses of the 14th Amendment and use Loving v. Virginia as precedent. Gay marriage advocates argue that one case does follow the other. Traditionalists argue the opposite, stating we can limit Loving and distinguish between the two issues. Using legal reasoning, it’s possible to go either way.

But there’s another way of looking at it. If the Court does extend Loving to gay marriage—Loving led us down a slippery slope to gay marriage. If this happens, will conservatives who buy and large support Loving, blame that decision, or blame the Court for wrongfully using it to justify gay marriage? In other words, if the Supreme Court does recognize gay marriage and subsequently uses that decision to justify a right to polygamous marriage, blaming the gay marriage decision for polygamy is no different than blaming Loving for the gay marriage decision. If gay marriage is recognized, it does not follow that we must recognize polygamy any more than recognizing interracial marriages demands that we recognize gay ones. Courts, exercising legal reasoning, can limit their decisions. The focus today is on gay marriage. Yesterday it was on interracial couplings. And tomorrow, it may very well be on polygamy. We’ll cross the polygamy bridge when we come to it.
Gay Marriage and Slippery Slopes Again:

This time it’s from professional blowhard—Catholic League President Bill Donohue:

“But neither offers a principled reason why – if two men can marry – we can't allow Fred to marry Fido. Nor can they make a principled argument against allowing Tom, Dick and Harry to marry. After all, if it's discriminatory not to allow Tom to marry Dick, why isn't it a matter of discrimination to stop Tom and Dick from adding Harry to their marriage? Why should poor Harry be excluded?”

"If love is the sole basis for marriage, then what gives society the right to deny a marriage license to Fred and Fido? Or, for that matter, to Sam and Sally, a brother-sister couple who – like in the movie 'The Dreamers' – love each other in a way most people find unnatural? Surely it is irrational to forbid incest! After all, we once made it illegal for whites to marry blacks, didn't we? So isn't it the same to deny Fred and Fido; Tom, Dick and Harry; and Sam and Sally? Wouldn't it be intolerant to say no to this happy trio of lovers? Isn't this what makes America great – equal rights for those who commit bestiality, polygamy, sodomy and incest?"

Like I’ve said before, this argument begs the question as to why bestiality, polygamy, and incest logically follow from homosexuality any more than they logically follow from interracial couplings. Whenever the analogy between homosexual & interracial couplings is made, anti-gay advocates state that we are talking about two different things, apples & oranges. Yes, we can distinguish between homosexual and interracial relationships. But so can we equally distinguish between homosexual couplings and polygamous, bestial, and incestuous ones. And the only thing that logically connects P.I.B. with homosexuality—being frowned on by tradition—also connects them with interracial couplings. (I learned this argument from John Corvino.)

Just think about Donahue’s comments regarding brother & sister love. Yes many people find incest, like homosexuality to be “unnatural” (whatever that means). But people equally thought interracial couplings to be “unnatural.” Unnatural from a religions perspective: “If God wanted the races to intermingle, He wouldn’t have created them separately”; unnatural from an evolutionary perspective: “The races evolved separately”; and unnatural from a social perspective: “If we observe behavior, it seems only ‘natural’ that folks prefer to couple with their own kind, their own race.” One can argue that interracial couplings fit the male/female marriage paradigm in a way that same sex couplings to not. But so do heterosexual incest couples. They don’t deny the one-man/one-woman order. And in fact, if one believes in the Biblical story of creation, the whole human race was propagated by brother/sister incest.

My point here is ONLY to show that whenever we extend rights, we can always make slippery slope arguments, asking, “who next do we extend rights to?” and “where do we draw the line.” And those same arguments were equally applicable when we extended the right to marry to interracial couples.

The proper way to defend interracial couplings from the slippery slope argument is point out that we can limit the decision's effect by making distinctions between it and anything else that might come later. And we can do the same thing while defending gay marriage from the slippery slope charge.

Monday, March 15, 2004

Ideals and Practicalities:

Chris from Semper Reformanda suggests that my post on natural rights and states rights begs more questions than it answers:

I would love to see him elaborate on this. Is he suggesting that the Supreme Court can override state decisions on "natural rights" if there are enough states that take a certain view? Was the deciding factor in Lawrence, for example, the fact that only 13 states had anti-sodomy laws? Is the Supreme Court to rule by situational ethics...with the number of state laws (or international laws) on a certain view being the determining factor of the ethic du jour?

And I would ask Jonathan: if this country is not being torn apart right now over a number of social issues (abortion and homosexuality, chiefly), just exactly how do you define "tear this country apart"?

The “torn apart,” is just a figure of speech. I simply meant that it’s better for nations not to engage in divisive culture war battles, or if, because justice ought to be done, we have to, not to fan the flames.

As to when it’s appropriate for the federal government to leave the securing of natural rights to the states v. stepping in and issuing a decision that binds all state governments, let me do my best to answer this, and I’m sorry if I don’t have a definite answer. Ideals—even those grounded in natural rights—sometimes have to be compromised with. This nation was founded on compromises with natural rights ideals. But it’s the ideals and not the compromises that ought to guide us. There are ideals and there are practicalities. And sometimes it’s just not practical to implement an ideal; justice sometimes has to wait.

If our Founding taught us anything, it was that ideals cannot be implemented into existence within the blink of an eye. One can make the argument that slavery was illegal & unconstitutional at the time of the Founding, but this ideal certainly couldn’t have been implemented in 1776 or 1789. And if the French Revolution—a revolution that was founded on the very same principles of liberty and equality as the American—taught us anything, it's that it sometimes can be dangerous to attempt to fully implement ideals overnight.

I’d love to see gay marriage recognized in every state. And I’m sure pro-life advocates would love to see abortion outlawed in every state. Natural rights arguments can be made on behalf of both claims. But at what price would it be worth to see this happen overnight? I certainly don’t think gay marriage is worth fighting a literal civil war over. What about abortion? Would it be worth a literal civil war, one where thousands of Americans killed one another if the end result was that abortion could be outlawed everywhere? A literal civil war is just an extreme—the worst possible outcome—that I used to illustrate a point. If we accept this premise, then we can also accept that it can be appropriate to compromise with certain ideals if we are doing so to avoid some kind of lesser [than a real civil war] harm that would result from moving too fast with justice.
Register these Hands as Deadly Weapons:

In the Business Law or Legal Environment courses that I teach we usually do a chapter on Criminal Law and the issue of self-defense and deadly v. non-deadly force comes up. This question is always raised every semester: whether martial artists or professional boxers ever need to register their hands as deadly weapons. I soon found out that this is an urban legend. Now Eugene Volokh has uncovered one place where it’s true:

“Jon Roland has uncovered that the ‘Karate experts must register their hands and feet as deadly weapons’ line -- which I had assumed was generally a joke, but if taken seriously has been debunked as an urban legend -- is actually true in at least one place: Guam."

Read the urban legend link. Everywhere else except Guam this need not be done. So don’t be afraid to go for that black belt on account that you will have to register your hands—you won’t.

There is a kernel of truth to the urban myth—and here it is: Whether one has been trained in the fighting arts may have *some* bearing—some legal consequences—on the outcome of a particular case. It’s certainly possible to be killed or greatly harmed by fists or feet alone; so the question raised is whether these may ever qualify as “deadly force.” But even then the general rule is that one must be using an external object to qualify as deadly force.

Sunday, March 14, 2004

States' rights and natural rights:

(Originally Posted on Freespace)

Regarding my comments on Everson, a reader writes, “Freedom of religion should be left to the states, not the federal government, for the same reasons that abortion should be left to the states. Rather than having a majority rule the entire country on [divisive] issues, such as school prayer, you should have the states experimenting with finding a correct balance. The market forces will eventually demonstrate which state policy is correct, and allow for dual successful models where appropriate. It is entirely rational to see Western states adopting very Newdow-like policies and the Bible-belt sticking to school prayer.”

Although I think there is tremendous merit to states' rights solutions, the problem here is that the religion clauses are essentially derived from the natural right of liberty of conscience. States ultimately don't have proper final authority over our natural rights. But that doesn’t mean that states shouldn’t have the first crack at righting wrongs. The states’ rights model is often useful in helping to secure natural rights because sometimes its just not feasible to secure these rights at the national level, better to let the states do their best to secure them, and then have the national government step in when the time is right. Slavery is a good example—it certainly wasn't feasible to secure those natural rights at the time of the founding (the slave states wouldn’t have ratified the Constitution if this were demanded) and it ultimately took a civil war to do it. I think Lawrence v. Texas was properly decided—but at the time it was, only 13 states had sodomy laws. Ditto with Loving v. Virginia—only 16 states had laws against interracial marriage at the time that case came down. There may very well be a natural right to gay marriage (or not). But the US Supreme Court ought not to impose gay marriage any time in the near future—it would tear this country apart. Leave it up to the states, and maybe when say 35 of them voluntarily recognize gay marriage, then have the Feds step in and secure the right in all states.
Slippery Slopes and Gay Marriage:

(Originally posted on Freespace)

The slippery slope is one argument that has been used against gay marriage in particular and homosexuality in general. The argument goes something like this: If we don’t morally condemn homosexuality, or if we permit gay marriages, how can we not do the same with polygamy, bestiality, incest, etc. Dr. John Corvino, one of my favorite moral philosophers, tackles this argument in his article, First Gays, Then Polygamists. His essential point is this: Homosexuality is not logically related to any of the other things any more than heterosexuality is. Heterosexuality, homosexuality, incest, bestiality, polygamy, pedophilia, etc. are all different phenomena. What makes homosexuality any more logically closer to these other things than it is to heterosexuality?

There is only one plausible answer: They have all been condemned by tradition. But guess what, so have interracial relationships. In other words, the only thing that logically connects homosexuality with pedophilia, polygamy, incest, etc., also connects it to interracial relationships. Tradition may be a good place to start when establishing social norms, but ultimately tradition cannot (or maybe I should say can) justify anything. Let us not forget that slavery, and many other horrible things—things that have risen to the level of crimes against humanity—have been justified by cross-cultural tradition.

This is where the relevance to the marriage issue comes into play. Just as some argue that homosexual marriage will send us on a slippery slope to polygamous, etc., ones, so too can we argue—and in fact it was argued—that interracial marriages sent us on a slippery slope homosexuality, polygamy, incest, etc.

If the Supreme Court did rule in favor of gay marriage and in doing so, cited Loving v. Virginia as precedent, the anti-miscegenationists could say, “see, we were right all along”; the Supreme Court, on a downward slippery slope, used its interracial marriage decision to justify homosexuality marriage. Anti-gay marriage advocates, who, by in large support Loving, claim that Loving need not support gay marriage because interracial relationships are distinguishable from homosexual ones. Well they certainly are. But homosexual relationships are equally distinguishable from polygamous, incestuous, etc. relationships.

Richard Posner, Judge of the 7th Circuit, and a thinker whom I greatly respect, does buy into the slippery slope argument. In his article Wedding Bell Blues, Posner takes on Evan Gerstmann, a pro-gay marriage advocate who pushes for a Federal Court solution. Gerstmann posits a federal fundamental right to marry and cites cases including Turner v. Safly, [where] the Court in 1987 ruled that a prison inmate could not be denied the right to marry,” and Zablocki v. Redhail, a case in 1978 that invalidated a law prohibiting a person who was under court order to support minor children to marry without the court's permission.” Gerstmann argues that these cases make supportive analogies to homosexual marriage—but homosexual marriages, once recognize, do not require support for polygamy, etc. Posner disagrees:

When Gerstmann describes the right to marry as fundamental, he means that any person who wants a marriage license has a strong presumptive right to it regardless of how the person defines marriage. He might be a man who wanted to marry his sister (both being sterile), or a very mature twelve-year-old boy (say, a freshman at MIT) who wanted to marry his twelve-year-old girlfriend (say, a freshman at Harvard), or a married man who wanted additional wives so that they might help out his current wife around the house, or a busy professional woman who wanted two husbands, the better to take care of the house and the kids, or a homosexual male who wanted three male spouses.

Posner further describes Gerstmann’s intellectual game: "Find a precedent…and analogize it to the present case…and limit the scope of your rule by rejecting further analogies on however arbitrary a ground, so that the right of a prison inmate to marry is deemed analogous to a right of homosexual marriage but not to a right of polygamous marriage…."

But what about the two aforementioned cases? Do they, by themselves, not also lead us down the same slippery slope? Posner distinguishes them from homosexual marriages: “The Court in Turner was not expanding the basic right to marry as defined by marriage law and custom. It was not as if marriage laws forbade prisoners to marry. The question was whether a prisoner could be denied the same right…enjoyed by non-prisoners.”

And what then, if the state had traditional marriage laws and customs that denied prisoners the right to marry, and to change it would be to “expand the definition of marriage?” Should the analysis have been different? In the entire article, there is nary a mention of the Loving case. Perhaps Posner did not include it for good reason: Loving did indeed, “expand[] the basic right to marry as defined by marriage law and custom.” Posner may be correct that homosexual marriages could lead us on a slippery slope to other things, but he does not tell us that Loving could be taking us down that same slope as well.

But he does tell us how courts, once they expand rights, prevent further slide down the slope. Posner explains why gay marriage is not the next logical step on a slope we are already on: "For one thing, there is nothing sacrosanct about precedent, especially in the Supreme Court. In Lawrence, the Court overruled a precedent that was not merely analogous to the case at hand, as Turner and Zablocki might be thought analogous to a case involving homosexual marriage, but identical to it." In other words, being able to make an analogy won’t win you the case. The Supreme Court has the power to break with duplicates for God’s sake! But if the polygamous try to analogize with homosexuals, we can likewise say, courts don’t have to recognize analogies.

Posner continues, “For another, it would be child's play, as a matter of legal casuistry, to limit [Turner and Zablocki] to conventional, monogamous, non-incestuous, heterosexual marriage.” But what about interracial marriages? Can we limit them in the same manner? Previously, conventional marriages were limited to 1) monogamous, 2) non-incestuous, 3) non-miscegenationist, 4) heterosexual relationships (and if we put our minds to it, we can come up with more elements as well). And now, we’ve expanded this definition by eliminating element number three. If we can take this step and go no further because courts can break with precedents, limit past decisions by distinguishing between analogies, then so too can we eliminate element number four and not go further, because, once established, courts can break with their gay marriage precedent and such marriages are as distinguishable from polygamous ones as interracial marriages are from homosexual ones.

One might argue that interracial marriages don’t fundamentally change marriage because element number four is more central to the institution than element number three. But the heterosexual component can also be present in element number two. Why can’t we argue that recognizing interracial marriages sent us down the slope that could lead us to incestuous relationships as long as they involved one man and one woman, who happened to be adults, etc.?

In the article, Posner doesn't argue against gay marriage per se, he is more interesting in tackling the claim that past precedent establishing a right to marry demands a present court decision in favor of gay marriage. He recognizes that there may be benefits to allowing gay marriages or civil unions (the latter is a policy that he actually supports), and—in line with his “pragmatist” judicial philosophy—wants us to focus on the consequences—pro and con—from allowing such marriages. But along the way he tells how courts could stop from falling down the slippery slope. And this helps to allay some of the slipperly slope fears that Posner tried to instill in his article.

Whether it was his intention or not, Posner’s article actually supports the notion that instead of worrying about slippery slopes, let each case get its fair hearing. In the Loving case, critics could have asked, "what happens when an adult brother and sister come asking for their marriage rights...?" And the Court could have answered, “we’ll cross that bridge when we come to it.” We can respond the same way once we recognize gay marriage and are asked about the polygamists.

Saturday, March 13, 2004

Religion and our Founding—Buttressing the 1st Amendment with the 9th and 14th:

(Originally posted on Freespace)

In discussing Religion and the Constitution on this site, I have mainly focused on the Establishment Clause. Before my week blogging here is over, let me express some thoughts on the Free Exercise Clause as well. (Note—In order to interpret the Free Exercise Clause, I must also include the Establishment Clause as part of the analysis—so mind you, I am not confusing these two as some do. As I have thought through these issues, I conclude that the clauses’ meanings are inseparable—that the proper interpretation of one invariably affects the meaning of the other. This is because both ultimately are derived from the natural right of liberty of conscience. And both clauses needed to be included in our Constitution in order to secure this right.)

Some social conservatives have claimed that the Free Exercise Clause was intended to grant religious liberty to Christians only. And that the two religion clauses ought to be put together in the following manner: The Establishment Clause prohibited the federal government from establishing one dominant Christian sect, or passing laws that gave preference to one sect over another. And the Free Exercise Clause guaranteed that all Christian sects would be able to practice their religion on an equal footing. Further, if we were to look at how some states treated Catholics under their laws, we might rightly conclude that our Founders intended that only Protestants have these precious rights.

At least one very important present day public figure has more or less endorsed this historical view: Chief Justice Rehnquist. In his dissent in Wallace v. Jaffree, 472 U.S. 38 (1985), Rehnquist cites, among others, former Justice Story to support this proposition: "The real object of the [First] [A]mendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government.” pp. 104-105.

As Story’s comments indicate, there certainly were some back then that desired the religion clauses to operate exactly in this manner. However, two very important Founders—Madison and Jefferson—clearly desired differently. We can see their views on the proper role of government and religion in Virginia’s Bill for Establishing Religious Freedom, which Jefferson penned and Madison fought to pass.

Although the language of the Bill does claim that our right to religious freedom ultimately was given by “Almighty God,” two words were purposefully left out of that bill: “Jesus Christ.” And here is Jefferson explaining why: “Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word ‘Jesus Christ,’ so that it should read, ‘a departure from the plan of Jesus Christ, the holy author of our religion;’ the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination.”

The Everson case essentially (and properly in my opinion) imputes the meaning of that Virginia Statute into the First Amendment. Rehnquist argues in his aforementioned dissent that Madison’s and Jefferson’s vision expressed in that Statute was not dominant among the Framers. Further, Madison, as the architect of the Bill of Rights ought to be viewed differently than the one who zealously fought to secure Jefferson’s Bill because he “was James Madison speaking as an advocate of sensible legislative compromise, not as an advocate of incorporating the Virginia Statute of Religious Liberty into the United States Constitution.” Id. at 98.

Madison did indeed attempt to put broader, clearer language into the First Amendment— but that was voted down. Moreover, he wanted an Amendment that would essentially make Virginia’s view binding on state governments as well—but that too was voted down. Eventually the Framers came to settle on the very brief language of the First Amendment. Were these legislative compromises? Perhaps. But if they were, let us not forget what was being compromised: The Virginia Statute states that it secures the “natural rights of mankind,” and to grant less protection or to allow a greater intermingling of Church & State, “will be an infringement of natural right.” Therefore, if the First Amendment represented a “legislative compromise,” to Madison, it essentially represented a failure to fully secure rights that all governments are obligated to secure. Protestants had their rights secured by that Amendment, but Catholics, Jews, Gentiles, Muslims, Hindus, and others did not.

(Rehnquist’s view also perfectly illustrates what I have written about regarding social conservatives—Bork, Berns, et al.—who desire to use Constitutional formalism not to fully secure natural rights, but often to act as a check on them.)

But non-Christians are, by nature, entitled to the equal rights of conscience. Would it not be reasonable then, when possible, to construe the Constitution in a way that fully recognizes equal natural rights?

Perhaps the solution to this Constitutional dilemma can be found in the 9th and 14th Amendments. As Randy Barnett has argued, these two Amendments serve as textual grounds for incorporating natural rights and demanding that federal and state governments fully recognize them. Madison was initially against the Bill of Rights altogether because he feared an imperfect enumeration would give government a green light to only narrowly recognize what is written on the list, and free reign to violate all the rest. So Madison added the 9th as a failsafe. The First Amendment as construed by Story and Rehnquist certainly represents an imperfect enumeration of the equal rights of liberty of conscience. Perhaps the 9th Amendment—and, when dealing with the states, the Privileges and Immunities of the 14th—can pick up the slack that a too narrow reading of the First Amendment would leave. In other words, if the equal rights of conscience for non-Christians were not fully secured by the Framers’ intention regarding the First, they are nonetheless fully secured as “natural rights of mankind,” under the 9th and the 14th.
Everson was consonant with our original principles:

(Originally published on Freespace)

Following up on my last post regarding social conservatives and the separation of Church and State, many religious conservatives claim that the case of Everson v. Board of Ed., 330 U.S. 1 (1947), incorrectly applied the Establishment Clause to the states—that the words “Congress shall make no law…” means Congress only, and that nothing has ever been written that should lead us to think that the First Amendment was ever intended to constrain state and local governments. I have posted that Randy Barnett makes a convincing case that the Framers of the 14th Amendment did indeed intend to incorporate the first eight Amendments of the Bill of Rights and apply them against the states. Therefore, there is textual authority (positive law) to support Everson’s application of the Establishment Clause against the states.

Still, many social conservatives disagree with my account of the 14th Amendment. Leaving aside the debate of whether incorporation was truly intended, let’s step back for a minute and examine the policy behind incorporation and ask how it squares with the abstract philosophical principles of natural and political right that this nation was founded on. Barnett posits that the “privileges and immunities” referred to in the 14th Amendment are these very same foundational natural and political rights. Barnett’s view simply calls for a broader, more universal application of these principles; Bork et al. call for a narrower, more restrictive application.

The Everson decision dealt with a vital natural right, liberty of conscience, which arguably was the one natural right that our founders thought to be the most important, the most unalienable. Everson (finally) helped to secure this right against state governments. Even if “technically” the Borkians are correct, that the First Amendment only constrains Congress, etc., the end result of allowing states to intermingle Church and State essentially allows states to subvert the most important of all of the natural rights.

As I wrote about earlier on this site, there is a group of social conservatives including Bork and many of the followers of Leo Strauss who advance a particular method of constitutionalism that seeks to divorce the Constitution from Natural Rights, and to use this constitutional methodology to turn away from and even subvert the original principles of natural rights that founded this nation. Their disagreement with incorporation in general and the Everson decision in particular illustrates this.

Just look at what Walter Berns (a Straussian—one of thinkers that I refer to above) has written regarding Everson: “Previously, everyone having anything to do with the subject understood that the prohibitions of the First Amendment did not apply to the states, and that to change this would require a constitutional amendment. This was Madison’s view. During the debates in the First Congress on the amendments that became the Bill of Rights, he proposed an additional amendment—he thought it the ‘most valuable amendment’ in the list—forbidding the states to ‘violate the equal rights of conscience.’ After being adopted in the House of Representations (where Madison served), the proposal went down to defeat in the Senate…But what Madison could not do in 1789…a divided Supreme Court…effectively did in the 1940s. Making Patriots, pp. 73—74.

This passage is so telling. The Supreme Court’s decision was—from a standpoint of Berns’s narrow positivistic constitutionalism—technically wrong. But what was the end result of that decision? It fulfilled Madison’s wishes and finally fully secured the most vital natural right, the most important of our original principles, against state violations!