Monday, May 31, 2004

Randall Terry Responds (or Founders, Philosophers, and the Trinity):

Randall Terry responded to my post. Here is his email in full:

Your read of history is political.

Almost all of the signers were Trinitarians (except Ben Franklin). Almost all were from an Anglican (Reformed Catholic) background.

To say that the God they were referring to was not the God of the Old and New Testament is a laughable, absurd that could only be constructed in recent times.

The most frequently quoted book in revolutionary literature was Deuteronomy.

The Phrase "the laws of Nature and Natures God" I.e., [sic] revealed Law and Natural Law, shows where they were at. Natural Law is a long and old body of thought from Catholic Philosohpers [sic] (and protestant as well) that speaks of the law written on all mens [sic] the Judeo Christian God...the only God.

I have another piece coming out soon, called "CLoning [sic] Thomas Jefferson, and ignoring Dean Addell"

Look for it, you may learn something. You could also get the book, "Defending the Declaration" by Gary Amos. It is a very scholorly [sic] look at the Declaration from the eyes and writings of those who lived then...not now.

Thanks, and Christ's peace be with you,


I won’t reply here to every point he made because most what I disagree with in this reply is already answered in my original post. I will take aim at just a few of his many errors.

First, the claim that “[a]lmost all of the signers [of the Declaration of Independence] were Trinitarians (except Ben Franklin).” Many men signed the Declaration and I certainly don’t know the religious orientation of all of them, but the most important person behind the Declaration—its author Thomas Jefferson—not only did not believe in the concept of the Trinity, but referred to it as “insane.” The other men on the drafting committee included John Adams, Benjamin Franklin, Roger Sherman, and Robert. R. Livingston. Our second President, John Adams, was a Unitarian. Unitarianism’s defining feature is that it rejects the Trinity. And of course, Ben Franklin’s deism is well known (and acknowledged by Terry). Alan Dershowitz writes, “The religious views of Sherman and Livingston are less well known, though it seems likely that the former was a traditional Christian, while the latter was closer to Jefferson and had expressed religious views that have been characterized as ‘daring to the point of impiety.’” America Declares Independence, at 70.

One point I often hear apologists for the “Christian nation” idea make (after M.E. Bradford) is that there were only a handful of avowed deists at the time of the founding, the rest professed some type of orthodox Christianity. This is a distortion because, while the overwhelming majority of the founders may have been Christian in *some* sense, a great deal of our most important “Christian” founders were anything but the Jerry Falwell, et al. “born-again” fundamentalist types. Let us not forget, men like Bill Clinton and Howard Dean also are “Christians” in some sense.

And rejecting the doctrine of the Trinity is a good way to measure who is or is not an “orthodox” Christian (most born-again types that I know tell me that if you reject the Trinity, you are not a real Christian).

Let’s see how our first four presidents stack up relating to their views on the Trinity. Both Adams and Jefferson, our 2nd & 3rd respectively, clearly rejected the Trinity.

George Washington’s exact religious views are, in my opinion, not fully settled. One reason why this is so, is because he tended to be very silent about them. His silence is telling: Most “born-again” evangelizers are anything but silent about their religion (just look at how Terry ended his email to me -- any evidence of George Washington ending his letters with things like "Christ's peace be with you"?) Silence, in these matters, is more of a tell-tale feature of someone who either has something to hide, or something that he doesn’t want to wear on his sleeve. And many deists back in the day could not wear their “deism” or any kind of “non-orthodoxy” on their sleeves back then—especially the politicians. Jefferson was positively vilified by the forces of “religious correctness” for his non-orthodoxy. He was called, among other things, a “French infidel” and a “howling atheist.” A prominent reverend campaigning against Jefferson’s presidency stated that if Jefferson were elected, it would “destroy religion, introduce immorality, and loosen the bonds of society.” It thus becomes understandable why if Washington were a deist, as a man of great prudence, he would be silent about it.

So was Washington a deist? One of America’s most distinguished historians of religion, Edwin Gaustad, labeled Washington “a cool deist.” Washington, like many of the “Christian” founders, was well versed in Enlightenment teachings and commonly used Enlightenment terminology in his words. Washington, like Ben Franklin and other deists, characteristically referred to God as the “Grand Architect of the Universe,” and in other ways that could lead one to conclude that he was a deist. See Kramnick & Moore’s, The Godless Constitution, p. 101. In the New York Times, Kenneth Davis writes that, although George Washington attended religious services in the Episcopalian Church, he often left church before Holy Communion which is something that orthodox Anglicans did not do. Davis also thinks that Washington was a deist. I have not yet seen the evidence sufficient to unequivocally categorize him as a deist. But the evidence of his Trinitarianism is sorely lacking.

James Madison, our fourth President, may have been the first one to believe in the Trinity. His religious views appeared to be more conventional than say, Jefferson’s. But Madison was, like Jefferson, a strict adherent to the doctrines of secular government and separating Church & State, believing that the “purities” of both should never be mixed with one another. Now Madison didn’t always live up to this ideal as President. But when, for reasons of expediency, Madison could not keep with his ideals, he realized that this was a failure. For instance, under intense political pressure during the War of 1812, Madison, “recommended, rather than decreed, that religious denominations and societies ‘so disposed’ appeal to God for assistance in the war. There was no suggestion that failure to comply involved any public penalty.” The Godless Constitution, at 106. But Madison later regretted this decision. “In 1832, at the age of eighty-one, Madison conceded that it might not be easy to keep clear the line between religious and civil authority; he himself had problems with his war proclamation, he noted. All the more reason, then, he advised future generations, to take the strictest reading of the separation of church and state, 'an entire abstinence of the government from interference in any way whatever.'" Id.

Madison believed the way he did because he—like Jefferson and others—was a strict disciple of the Enlightenment liberals, particularly Locke—who gave us the “theoretical” or “epistemological” understanding as to why religion belonged in the realm of the “private” or “opinion” as opposed to the realm of “public” or “truth.” Locke and the other Enlightenment philosophers denied the Trinity (this shouldn’t surprise us—the philosophers believed first and foremost that Truth is ascertainable by Man’s Reason, whatever doesn’t comport with Reason cannot be the Truth, and the religious doctrines were true only insofar as they were reasonable. The Trinity was a doctrine that the philosophers had a big problem with on the grounds that it was not reasonable. Hence, Jefferson’s categorizing it as “insane.”) But the teachings of the Enlightenment philosophers were so appealing that even orthodox (Trinitarian) Christians eventually came to accept the Truth of their teachings, even going so far as incorporating Hobbsean—Lockean theory into their sermons.

For instance, John Witherspoon, a founder and former President of Princeton University, is often referred to as a “Calvinist” because he was a Presbyterian minister (and Calvin was the founder of Presbyterianism). He certainly believed in the Trinity. Witherspoon nonetheless was a Lockean. As Walter Berns writes, “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.” Making Patriots, p. 42. But Berns writes elsewhere that Locke’s state of nature teaching is wholly alien to the Bible. Thus, Enlightenment theory is not a Biblical ideology. At best, it’s perhaps (or not) compatible with orthodox Christianity. But it’s certainly not compatible with an understanding of orthodox Christianity that seeks to use the state to enforce the tenants of orthodox Christianity.

In sum, if our first President even to believe in the doctrine of the Trinity (and I'm still not fully sure that Madison did -- men imbibed in Elightenment theory as Madison was were likely to be highly skeptical of this doctrine) was a militant advocate of the separation of Church & State, this tells us that America was not founded by a bunch of Pat Robertsons and Jerry Falwells. I could write more. I want to talk about Roger Williams and the rationale put forth by orthodox Protestants for secular government. But that will have to come later. I’ve written enough already.

Friday, May 28, 2004

An honest theocrat:

No, Randall Terry is not the honest theocrat to whom I refer. In fact he is typical among the religious right who misunderstand the philosophy behind the Declaration of Independence, hence America’s founding. In this article where Terry continues to discuss the problem that he has with his homosexual son, Terry invokes the Declaration to argue that Biblical Christianity alone serves as the basis for not only private morality but also the “rights” that pubic policy must recognize:

But if there is a God who makes the rules, then He has imposed His morals on all of us, and we are obliged to obey and defend those ethics in the public square.

The Declaration of Independence declares that our rights come from God. It also declares that Laws come from God, and that God is the Supreme Judge of the Universe. We do not get to pick our rights, nor the laws that govern our behavior, nor the standards by which judgments are to be made by us and the Almighty concerning the behavior of men and nations.

Rights, Laws, and Judgments come from our Maker – not us, not the state. It can never be a "right" to have a homosexual marriage, any more than it can be a "right" to murder our offspring, because God did not give us those rights, and they violate the rules He made.

What Terry doesn’t understand is that the “Creator” who grants us rights under the Declaration, as Walter Berns writes, “is ‘Nature’s God,’ not…the God of the Bible, 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.” Berns, Making Patriots, page 32.

I understand how religious conservatives, or anyone who has not carefully studied the philosophy behind the Declaration, conclude that the “Creator” mentioned in the Declaration is the God of the Bible. It makes it far easier for orthodox Christian to accept the very un-(orthodox) Christian “rights-oriented” philosophy of our founding if they believe that the Biblical God in fact grants us rights. But this belief is “wrong as a matter of doctrine—where does the Bible speak of unalienable natural rights…?” Id. at p. 42. Ultimately, this misunderstanding may have been key in selling the notion of unalienable rights to a (soon to be) nation (technically we were a bunch of colonies) where orthodox Christians comprised a fairly significant portion of the population and where institutional religious forces held a great deal of power.

Terry, based on his fairly strong knowledge of the history of religious thought, nonetheless makes an error (a very interesting one) when he writes:

I contend that we must speak of the Almighty in the tones and the language of America's founders. Read the Declaration of Independence again. When they discussed God and Truth in reference to public policy, they sounded very catholic (universal) in their references to God, not like fundamentalists quoting chapter and verse from the Bible.

If Terry were familiar with many of the things that the founders had to say about Catholicism he would realize that the last thing they wished to do while writing the Declaration was sound like Catholics. But here is why Terry makes this error: Catholics have their “natural law” tradition, via Aquinas, where rules of morality are "discovered" using man’s Reason alone. Man as man, looking to nature, through reason alone, discovers not only what is, but what ought to be. Aquinas of course was simply incorporating the teachings of Aristotle (some say it was a “misincorporation” or a “bastardization” of Aristotle) into the Church's teachings. And ultimately, Aquinas concluded that the natural law justified all of the Catholic Church’s dogma.

Our founders—or I should say that the Enlightenment liberals whom our founders followed—also turned to “nature” or to “Man’s Reason unaided by Biblical Revelation” to come forth with the principles of natural and political right which our nation is founded on. And the intellectual ancestry behind our founding philosophy, like the Catholic Church’s natural law teachings, ultimately traces back to Ancient Greece for its origins. The two, as Randy Barnett puts it, “shar[e] a common intellectual ancestry and methodology….” The "methodology" that Enlightenment natural right and Catholic natural law share is that both theories are organized under the rubrics of “nature” and “reason.” Thus, it can be very easy to conflate these two very different philosophies, using these two terms. (This is something that the Claremont Institute specialized in.)

But what was unique about Enlightenment philosophy, especially Locke’s (whose ideas Jefferson lifted in writing the Declaration), was that it intended to break with both the Christian and classical understandings of nature (with their emphasis on “public virtue,” on “duties” as opposed to “rights”). As scholars Isaac Kramnick and R. Laurence Moore write, “Two thousand years of thinking about politics in the West is overturned in Locke’s writings, as the liberal state repudiates the classical and Christian vision of politics.” The Godless Constitution, p. 73

Finally we get to our honest theocrat. Thomas Fleming of Chronicles Magazine is not only an orthodox Christian, but is a conservative of the most extreme nature: a neo-confederate paleo-conservative. As such, I disagree with him on many, many policy issues. But he understands America’s founding in a way that the Christian Right revisionists who argue that our founding and its documents are based on “Biblical Christianity” do not. Sometimes we get refreshing honesty from those folks who are so extreme they are willing to buck any kind of convention, even in their own circles.

Regarding America’s “Christian” founding, Fleming writes:

It is a pretty fiction, and one that I would like to believe. The American founding is a complex story, and there were many Christians among the leaders in the seceding states. However, neither the leaders of the Revolution nor the principal authors of the Constitution were, for the most part, devout and orthodox Christians. Most of them were, like their counterparts in 18th-century England, deists and Unitarians. Washington and Jefferson were nominal Anglicans; Adams, a Unitarian Congregationalist; Franklin, a hedonist and mocker; Tom Paine, an open atheist. They had all been inducted into freemasonry, which, even in its most benign form, is incompatible with orthodox Christianity.

Moreover, Fleming (like Robert Bork) realizes that the Declaration of Independence does not reflect an orthodox Christian worldview and it would be wise for such Christians to downplay this document’s historical significance:

If Dred Scott is a slender reed for conservatives to rely on, the Declaration of Independence is a morass. Whatever Mr. Jefferson and his colleagues thought they were doing (other than restating Enlightenment platitudes that have nothing to do with Christianity), they were not writing the fundamental law of a nation that did not yet exist. If they had been intending to establish Christianity at the center of the American system, they would have used Christian language instead of such deistic phrases as “Nature’s god.” Although some conservatives have made valiant efforts to give the Declaration a harmless reading, Harry Jaffa and other leftists have ensured that the Declaration is read today as a revolutionary manifesto for natural rights that transcend the pettifogging restrictions of the Constitution and the Tenth Amendment, guaranteeing the rights of the states.

Thank you, Mr. Fleming. More honesty among religious conservatives like this is welcome.

Thursday, May 27, 2004

Volokh evidences the existence of “merit”:

Eugene Volokh actually statistically demonstrates that, in all likelihood, students who get better grades on law school essay exams (or at least his exams) actually write better exams. In other words, he demonstrates that there likely is a great deal of objectivity when it comes to grading law school essay exams.

When I was in law school, students, and even many professors, argued that the grading process was “subjective,” meaning that grades in law school really didn’t mean much of anything other than whether the professor was in a good mood on the day that he or she graded your exam (and what does it say about the professors that they would argue that their own grades don’t mean much?).

All of this, of course, was a big attack on the notion of meritocracy. Not everyone graduates with honors, and yes, some folks have to graduate at the bottom of the class. Moreover, (and also very important as to why meritocracy is attacked) grades aren’t “statistically” proportioned among all “groups”; some “groups,” as a whole, get better grades, on average, than others.

Attacking pretty much any notion of meritocracy is just part & parcel of what it means to be a politically correct bleeding heart EGALITARIAN law student or professor.

I myself am skeptical of these attacks on meritocracy. I tend to believe that the students who get the better grades on the exams actually wrote better exams (not that they were necessarily smarter) and, if you wrote enough good exams such that you attained a good GPA, then you are probably a better student and likewise probably (for good reason, I italicized that term both times that I wrote it) would make a better lawyer than someone with a lower average.

Now, one problem with these generalizations is that while I think the generalizations are accurate, they nonetheless are generalizations—meaning that they tell you, more or less, what is likely, rather than what—to an absolute moral certainty—will be. But absent a crystal ball, we will never know what will be.

In other words, it’s entirely possible—and I’m sure there are many anecdotes that can be given to me that illustrate this—that someone who graduates law school at the bottom of his class, doesn’t serve on a journal or do anything to distinguish himself, fails the bar one or more times—may turn out to be a spectacular attorney. And likewise it’s entirely possible that someone who graduates at the top of her class, makes Law Review, passes the Bar exam on the first try, may turn out to be a total disaster in the real world. But this doesn’t mean that such merit criteria are meaningless. Such criteria are useful insofar as they help to PREDICT (that’s the magic word) who the more competent lawyer will be. And unless we get a perfect “one” as a correlation between our evaluative merit criteria and success on the job (which never happens—that’s our crystal ball standard), there are always going to be exceptions to the rule.

But we err when we conclude that the existence of the exception, or of many exceptions, destroys the rule. In other words, if I were to make the claim that grades, honors status, Law Review, etc. do mean something, I will likely get the egalitarian response, “well I knew X, and she was Ms. Perfect student and turned out to be a disaster,” or “Y failed the bar twice and then she became a superstar….” That these exceptions exist do not prove absence of predictive validity regarding evaluative “merit” criteria. Such critics of merit criteria like Lani Guiner would have to demonstrate that there is a “zero” correlation between traditional merit criteria and success as an attorney.

Let me close with an actual example from my law-school. When I attended Temple University's School of Law, we had a sub-par Bar passage rate as compared to other colleges of similar reputation (we no longer do—and on an interesting side note, as law school admissions have gotten more competitive since I graduated in 1999, Temple’s average LSAT admit score raised—and our bar passage rate increased with our increase in LSATs—thus a correlation between LSAT scores and Bar passage rates for our school exists). So the Dean, in his concern, studied the issue. He found that those graduating in the top third of the class had roughly a 90% passage rate (which is very good), and there was a significant drop for the middle third, and the bottom third of the class had an extremely poor passage rate. In other words, there was a correlation between GPA and passing the bar. But it wasn’t a perfect correlation—it’s possible to point to an example of that 10% in our top third who FAILED the bar and there were many folks in the bottom third who passed the bar as well. But these exceptions don’t disprove the accuracy of the generalization, “the students who do better in law school tend to be better bar testers as well.”

Tuesday, May 25, 2004

Added new pic:

If anyone has not recently checked, I have added a new pic. The old one was a little dated (it was sorta a half-joke -- didn't really accurately project my image). This one was taken last year.
Uh...Wasn't this settled in 1865?

And there's now way in Hell that you are going to get South Carolina. Still, it would be very tempting to make a deal where we could get rid of Alabama...very tempting indeed.

Friday, May 21, 2004

Finding Common Ground with Cal Thomas:

I find some common ground with Cal Thomas here. He argues that the gay marriage debate is over and the pro-gay marriage side has won:

"Pro family" groups have given it their best shot, but this debate is over. They would do better to spend their energy and resources building up their side of the cultural divide and demonstrating how their own precepts are supposed to work. Divorce remains a great threat to family stability, and there are far more heterosexuals divorcing and cohabiting than homosexuals wishing to "marry." If conservative religious people wish to exert maximum influence on culture, they will redirect their attention to repairing their own cracked foundation. An improved heterosexual family structure will do more for those families and the greater good than attempts to halt the inevitable. A topical solution does not cure a skin disease whose source is far deeper.

True. Divorce, adultery, and especially out of wedlock births by young single parents who are not able to support the children they have, are far greater threats to the stability of society than gay marriage—or anything done by homosexuals—ever could be.

This isn’t the first time I have found common ground with religious conservatives—and for all of the time I spend criticizing the “religious right” on this website, I’d like to find common ground, workable solutions to these divisive culture war battles. And such ground usually boils down to one word: libertarianism. The libertarian solution seeks to maximize the private, minimize the public, and protect freedom of association & property rights, and otherwise apply public rules in a “neutral” way where no one group gets any favorable treatment vis-à-vis any other. No double standards—a rule on race must apply equally to blacks & whites alike. Similarly, “Christian fundamentalists” as a social group should be treated no better or no worse than “gays.” Unfortunately, the pervasiveness of anti-discrimination laws in private, and the un-likelihood of their repeal any time soon, makes the implementation of this ideal unrealistic in the immediate future.

But regarding religion, politics, & society, as long as religious conservatives have the right to practice their religion, establish their communities, and exclude whomever they want from their churches (in other words, I’d like to see these religious groups be given absolute protection, but in the private sphere of life) and as long as gays, and other folks who have a different worldview are accorded the same rights under a neutral set of rules that favors no one particular group, then I think we could peacefully coexist in the same nation.

And Cal Thomas previously had written that it’s a good idea for orthodox Christians to get out of politics, (perfectly consistent with Jesus’ statement “my kingdom is not of this Earth”) and attempt to affect society by living their lives in a moral way, and by providing good examples of healthy vibrant communities. And I am all with him there.

The problem to my libertarian solution, however, is two-fold. First, the state has so much power and is so large, that various “groups” (or “factions” as our founders put it), just can't seem to help but vie for “state power” to enforce their interests against everyone else. And many of these “factions” are associated with the Left—“racial” and "ethnic" groups, “feminists,” the “disabled,” and many others, including of course, “gay” groups. And this “enforcing your interests to the detriment of the freedom of others not in your group” is done through the use of anti-discrimination laws, and various other organs of the state.

Eugene Volokh gives a prime example of this where under a Seattle anti-discrimination ordinance, a small business owner—a printer—was sued for refusing to print invitations to a gay wedding. Now many on the Right would use this as an example of how “sexual orientation” discrimination laws threaten freedom. But ALL anti-discrimination categories that apply in the private sector have the capacity to operate like this.

The second problem is that the religious right doesn’t want to accept the libertarian compromise. Like the other “factions” (mainly associated with the Left, but the Right has its factions as well), the religious right wants in on the game; they want to use the organs of the state to force their worldview down the throats of society—if it’s good for the goose, it’s good for the gander. And their argument goes something like this: “America was founded so that we could force our worldview on society—not so leftists could force their worldview on us.” But that simply is not true. As I, and many others, have pointed out, this nation (at least our public institutions) was founded as a “secular,” not a “Christian,” entity.

One complaint that I often hear from the religious right is how “hate-crimes” statutes—which they mean, only those that include the category of “sexual orientation”—threaten their freedom of speech, that by simply “criticizing” homosexuality based on their Biblical beliefs, they could be prosecuted under such statutes. And they point to the example of Dr. James Dobson being thrown off the air on certain stations in Canada under their “human rights laws.”

But then these same religious conservatives jumped with glee as the Bush administration started to use the “axe” of the FCC to go after Howard Stern and other forms of public broadcast which they find “offensive.” Fine, let’s let the FCC issue $500,000 fines against Stern and chase him off the air. And then when a leftist administration comes into power and that “newly sharpened” FCC axe, complete with the half-million dollar fines, starts to go after religious conservative broadcasters for “hate-speech,” don’t expect me to shed a tear.

Let’s keep one thing in mind: James Dobson wasn’t the only person who got in trouble under Canadian broadcasting rules. The exact same Canadian statute under which Dobson was punished was also used to punish, yes, Howard Stern. Stern, no racist in my opinion, sometimes makes off-color racial jokes (as he does about EVERY other social group—he’s truly an equal opportunity offender). The same Canadian statute that prohibited “offensive” broadcasts on the basis of “sexual orientation” also prohibited such broadcasts along many other categories, including “racial & ethnic” groups, which categories Stern got in trouble on.

When I talk to religious conservatives about the libertarian compromise, I usually frame the hypothetical question this way: If you were guaranteed the absolute right to practice your religion, speak your mind on any issue, say anything you want publicly about homosexuality and never fear prosecution, or any type of state enforced persecution—in other words, “to be (absolutely) left alone”—but in order to get this protection, these same rights must also be granted to hard core pornographers, would you take this deal? And I usually get a look or a response like I’m the Devil.

Wednesday, May 19, 2004

Update on Interviews & Pat Buchanan -- anti-American values:

Interviews: Two down, one to go. I feel confident. But then again, these positions are uber-competitive.

And here, Pat Buchanan lets it be known that he has more in common, culturally, with those Islamofascist, than he does with modern America.

He writes:

But even John Kerry does not agree with George Bush on the morality of homosexual unions and stem-cell research. On such issues, conservative Americans have more in common with devout Muslims than with liberal Democrats.

Very telling. The reason why we are fighting this war is to defeat terrorism and to spread "democratic values" in the middle east (and the big question that I haven't fully resolved myself is whether those values, even though they are universally applicable, can be, or should be, spread at the point of a gun).

When Buchanan writes, "devout Muslims," I presume he means those Muslim men who would sequester their women, force them to wear burkahs, execute homosexuals, and put a "Fatwa" on the head of Salmon Rushdie (the Islamofascists).

Those "democratic values" that we are fighting to spread -- values implied in America's founding -- are, in many ways, antithetical to the religious right's worldview, just as they are to the worldview of the Islamofascists. Kudos to Buchanan for recognizing this.

Monday, May 17, 2004

Historic day for equality:

I am glad that this day has come so young in my life. And coincidentally on the 50th anniversary of Brown v. Board of Edu. Now I realize that these two circumstance are distinguishable from one another in many meaningful ways. But they do have one obvious thing in common: Equality. Tremendous victories for equality.

Sunday, May 16, 2004

Light Blogging over the next two weeks:

Why? I have three, count 'em three, interviews for full-time teaching positions (simply getting an interview in this field can be a challenge) scheduled over the next two weeks (one in Connecticut, one in Massachusetts, and one in New Jersey).

Thursday, May 13, 2004

Randy Barnett is Wrong this time!

Wow I’m shocked. I thought I agreed with every word he ever wrote. He writes that, while the Free Exercise Clause of the First Amendment does secure a natural liberty right, he doesn’t think that the Establishment Clause, as originally understood, did so:

In contrast, the Establishment Clause of the First Amendment describes neither a natural liberty right or "immunity," nor a positive individual right or "privilege" of citizens. It is simply a limitation on the power of Congress simpliciter. Therefore, the plain and original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment has no relevance to the state establishment of religion. State endorsements of religions are not unconstitutional (although I reserve judgment on the propriety of using a general tax to subsidize religion without any opt-out).

I am open to being convinced that I am wrong about this. Indeed, given my commitment to the separation of church and state, I would WELCOME being convinced that I am wrong….This is not, after all, a liberty issue. A religious establishment tells no one what they must do or must not do (unlike "blue laws," for instance, that do). To obtain the legally enforceable separation of church and state at the state level that I strongly desire would require a constitutional amendment.

Wrong Mr. Barnett, the Establishment Clause, every bit as much as the Free Exercise Clause, describes a “natural right” or immunity—that of “conscience.” Separation of Church & State is mandated in order to respect the natural rights of conscience for all of the citizenry. Liberty of conscience was arguably the most important—the most inalienable if you will—right that our framers were concerned with. And both the Free Exercise Clause AND the Establishment Clause were necessarily included in the Constitution to secure this right.

Under our original constitutional scheme, only the federal government was restrained from violating natural rights (or at least, the federal government didn’t have the jurisdiction to enforce natural rights against the states, rather it was hoped that the states, on their own accord, would respect natural rights).

Madison, in fact, desired that the federal government enforce certain natural rights against state governments—particularly he favored that states be forbidden from violating the “equal rights of conscience.” Here is the language that Madison originally proposed for the First Amendment:

The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext infringed. No state shall violate the equal rights of conscience or the freedom of the press, or the trial by jury in criminal cases.

But this language was voted down because other framers considered it to be an overreach of federal power.

However, we need to know what it meant that, “no state shall violate the equal rights of conscience....” Jefferson and Madison, first and foremost, believed that a state having an officially established church violated the natural rights of the citizenry. Madison specifically stated that the rights of conscience could not be secured unless there was a “perfect separation between ecclesiastical and civil matters.” And of course, Jefferson had his famous, “wall of separation...,” phrase.

But if we want to see in detail an example of a state that, voluntarily on its own accord, respected the natural rights of conscience, and what that meant, we must turn to Virginia—specifically to the Virginia Statute on Religious Freedom, penned by Jefferson and pushed through by Madison.

On the question of government aid to religion, that statute states “that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor….”

Regarding government endorsement of a particular religious point of view, the statute states, “that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own….”

Finally the statute says, “Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish enlarge, or affect their civil capacities.”

Now, Randy Barnett has claimed that these norms of “disestablishment” are NOT natural liberty rights. (And yes, I realize that this statute can be confusing because it mixes the norms of "disestablishment" with those of "free exercise." But this just proves my point that these two clauses are inseparable and both together secure the natural rights of conscience). The statute contradicts his claim: “[W]e are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act shall be an infringement of natural right.”

Finally, let me quote Walter Berns—if there ever were an “anti-libertarian/social conservative,” Berns is one—on this issue. Berns disagrees with the Everson decision—the decision that first recognized the Establishment Clause as binding on the states—but he does so for very different reasons than Barnett:

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.

Berns rejects Everson's application of the Establishment Clause to the states because he rejects the doctrine of incorporation and he specifically rejects the notion that the Federal government generally has the power to enforce natural rights against the states, (unless of course, there is very specific textual positive law authority for doing so—for instance, Berns would argue that the 13th, 14th, & 15th Amendments do give the Federal government the power to make sure states respect the equal natural rights of blacks—but in that specific circumstance only). But Berns is stating that if the federal government did have the power to enforce the “equal rights of conscience” against the states, then Everson would have been correctly decided.

Wednesday, May 12, 2004

More on Sandefur on Jeffersonian Ideals:

Sandefur has some excellent posts responding to Southern Appeal’s Owen Courreges’ attacks on his originalist defense of Lawrence. He rightly notes that those who cite Jefferson’s participation in rewriting the Virginia criminal code as “debunking” the notion that Jeffersonian principles could have lead to the outcome in the Lawrence case are not putting that statute into the appropriate context that is needed.

There are strong grounds to believe that when Jefferson referenced “sodomy” he was not referring to two adults having completely consensual relations in private—that “sodomy” likely meant non-consensual behavior generally, and non-consensual behavior with underaged boys particularly.

I too have written before that the overall context of Jefferson’s bill —that he notes “sodomy” to be equally unnatural to “bestiality," but then decriminalizes the latter and groups “sodomy” with rape—suggests that in proscribing "sodomy," he did not have in mind “sending armed agents of the state into peoples’ bedrooms to drag their loved ones from their arms.”

But even still, Jefferson was one who believed that as future generations acquire more knowledge, their opinions would change and become more enlightened, and that “laws and institutions” must change with evolving circumstances to “keep pace with the times.” Specifically, the notion that homosexuality is more similar or analogous to bestiality than it is to heterosexuality is an obvious error in reason. And if Jefferson were alive today and had the chance to observe folks in long term committed same sex relations, I’m sure he would agree every bit as much as he would agree that Albert Einstein’s science corrected the errors of Newton's.

And it’s also important to keep in mind while Jefferson did integrate some of his “reforms” into this bill (making it closer to his ideal preferences) that statute by no means represented an “ideal Jeffersonian criminal code,” but rather was, as Sandefur has written, “a revision of a preexisting legal code, and which was written in order to pass a legislature full of men who were not exactly in line with him intellectually.” Jefferson did tell us that his Virginia Statute for Religious Freedom represented his ideal thoughts on how religion and government should be situated with one another—he thought that Statute to be among his greatest accomplishments, on par with his drafting of the Declaration of Independence. There is no evidence that he thought his participation in rewriting the criminal code—a statute which punishes “witchcraft, conjuration, enchantment, or sorcery, or…pretended prophecies…by dunking and whipping, at the discretion of a jury, not exceeding fifteen stripes”—to be as important a feat in his life as his drafting of the Virginia Statute for Religious Freedom or the Declaration of Independence. Undoubtedly, he didn’t.

Tuesday, May 11, 2004

Yes, Virginia, Evil does exist:

Those sick f*cks.

Since I was teaching last night, I had to miss Yes, who played in Philadelphia. Oh well, I'm sure they'll come around again. Three years ago I was teaching when Yes and Kansas, who were touring together, played in Philadelphia. I've since seen Kansas a number of times, but not yet Yes. I hope I am free when Rush comes to town.

Monday, May 10, 2004

Fisking Clayton Cramer (or why this nation was not founded on Christianity):

Yes, well, Mr. Cramer rather has his hands full being repeatedly Fisked in the blogsphere—but, let me point out that Ed Brayton has replied to Cramer’s post, where he attacks me and Brayton for daring to claim that the United States was founded on secular principles, and that many of the quotes by our founding fathers demonstrating otherwise are simply false. And Brayton gives Cramer the Fisking that he deserves. Cramer trotted out various state constitutions, all written before the US Constitution was ratified, and all of them basically establishing some form of Christianity as the official religion of the state, requiring religious tests for public office, etc., or otherwise integrating Church & State in a myriad of ways.

Brayton explains why all of this does not prove that the United States was originally conceived of as a “Christian Nation,” meaning one whose public institutions and principles, are “founded on Biblical Christianity,” or one that otherwise was “publicly” (government) as opposed to “privately” (culture) Christian:

Something obviously changed between 1777, when the Continental Congress finished writing the Articles of Confederation, and 1787, when they wrote the Constitution. What was it? Well for one thing, a powerful movement for disestablishment of state churches had begun, fueled largely by events in Virginia in 1785-1786. The Act for Establishing Religious Freedom, written by Jefferson and pushed through by Madison while Jefferson was serving as our ambassador to France, was an enormous victory for the forces of church/state separation, and Madison's powerful defense of disestablishment and separation, his Memorial and Remonstrance, was widely distributed among the several states thereafter. The first amendment's religion clauses, which established the principle of separation at the federal level, were modeled directly on the ideas found in that bill. With the passage of the Bill of Rights, the movement to disestablishment grew stronger, and by 1833, all of the original 13 states had done away with their official religious establishments, though some vestiges of that earlier era can still be found in unenforced and unenforcible language in some constitutions.

For some reason, Cramer seems to want to freeze frame a time period before the passage of the US constitution, which was an enormous sea change in the relationship of state and church in a thousand ways, and pretend that documents from that time show the conception of the constitution more accurately than the constitution itself. And remember, the advocates of establishment greeted the constitution with howls of opposition, calling it a godless document that would bring down the wrath of God upon us all. Clearly, this was a major change from the conceptions of government found in earlier documents, not only around the world but within the states themselves as well.

Let me point out that every single state constitution that Cramer refers to as requiring declarations of belief in the Christian religion to hold public office, or otherwise integrating Church & State in various ways, violated—according to the views of Jefferson, Madison and others—the inalienable right of “liberty of conscience,” as much as slavery violated the equal rights of black persons. When we declared our Independence in 1776 by appealing to “inalienable rights” of life, liberty, & the pursuit of happiness, the right to “conscience” was arguably the most important specific right contained within the general inalienable right to liberty that our framers were concerned with. Those state constitutions that Cramer refers to were as anathema to our founding principles as was slavery. Those state constitutions, in many ways, represented the “old” traditions of the West, as did slavery, serfdom, & divine rule of Kings. The principles espoused in the Declaration, in many ways, represented a radical break with tradition. And as with slavery and those other things that I mentioned, those state establishments of religion had to go. It was a matter of when, not if. And, as Brayton points out, within a relatively short period of time (1833), they all did.

Saturday, May 08, 2004

Owen misunderstood (or misrepresented) what I wrote:

Owen from Southern Appeal has responded to my original thoughts on this 9th/14th Amendment controversy. He begins on a note of agreement:

The Constitution does indeed contain timeless ideals, but they are timeless because they are specific concepts that can be adapted to changing circumstances. Thus new forms of weaponry don't necessarily change the meaning of the Second Amendment, and nor do innovations in communication chance how we view the protections guaranteed by the First Amendment. However, the basic concepts themselves remain intact. Otherwise, they would devolve into incoherency.

Jon seems to recognize this, but then his argument degenerates into something which justifies the "living document interpretation" (a fact which he vigorously denies):

I think I can anticipate Clayton Cramer's response: The Framers may not have known of the existence of condoms, DVDs, machine-guns or the broadcast media, but they did know that "sodomy" existed. Therefore "sodomy" is not an "unforeseen circumstance" that could not have been dealt with. But what of changes in attitudes, values, knowledge, or the "rethinking" through certain "ideals" in way different, but perhaps broader and more consistent, than the framers' original contemplations?

Owen then writes, “Yes, what if we 'rethought' the notion of habeas corpus? Or of free speech? Why, we can abolish the entire Bill of Rights if we want to!?”

Now let’s read what I wrote very carefully: When I wrote, “rethink through certain ‘ideals’ in a way different…” I immediately followed it, with “but perhaps broader and consistent than the framers' original contemplations.” Maybe I needed to choose my words more carefully. If I am the source of the confusion, then I apologize. When I used the term “different,” I meant applying the SAME rule (free speech, equality, free exercise of religion, for examples) in a way that the framers might not have conceived of at the time. I didn’t mean throwing out the rule, or coming up with a new rule—I favor not only following the rules that the framers came forth with, but expanding their application, making them more universally apply today, than they did at the time these rules were enacted. For instance, when the framers wrote “all men are created equal,” perhaps they meant only males. I would take the same principle: “equality” and apply it to females as well. That is, if we logically think through why the framers concluded that all males are created equal and apply their rules and their logic, we might also rightly conclude that all females are created equal and that females are equal to males in their possession of rights as well.

To give another example, when the framers wrote the word, “religion,” some of them only meant “Protestant sects,” others—Jefferson & Madison—for instance, meant all religions. I side with Jefferson & Madison’s universal application of our religion clauses.

Thus the conclusion that Owen draws from my post, that my logic warrants, “throwing out the Bill of Rights entirely,” is precisely the opposite of what I argue for. My logic takes the Bill of Rights and seeks to broaden its application in ways that perhaps the Framers did not “subjectively” contemplate. But they did, I think, objectively realize that future generations would do this. In fact, they gave future generations a green light to rethink the applicability of these ideals by writing them in such broad and general language.

Let me go on record as stating that I believe that every single word in the Declaration and the Constitution is controlling law. I believe in the integrity of the constitutional text and do not believe that we may properly throw out one word. When we start cutting out pieces of the Constitution—that, to me, makes it into a “living document.” And that’s exactly what the leftists have done with the 2nd Amendment and it’s exactly what Judge Bork has done with the 9th and the Privileges or Immunities Clause of the 14th.

Owen writes further:

You see the problem. Jonathan tries to draw a connection between "unforseen circumstances," such as technolgical innovations, and changes in popular moral philosophy. However, technological innovations are matters of fact. We have television, radio, and the internet, and we didn't have them before. Accordingly, they have to be integrated into the First Amendment with a mind for the ideal it represents. Similarly, we have to consider that the word "arms" in the Second Amendment wasn't accounting for devices of global destruction, and so the hydrogen bomb probably shouldn't be owned by a militaman in Utah. And that's still consistent with the Second Amendment.

However, if we were to decided, today, that free speech wasn't really as good a thing as the founders thought it was, we would have one of two choices: 1) pass a constitutional amendment overriding the First Amendment, or 2) accept the fact that that the founders disagreed, and that the Constitution is still legally-binding. We shouldn't, however, have the option of ignoring the First Amendment simply because our ideals have changed, or our interpretations of basic concepts have changed. If that weren't the case, then we'd no longer have a Constitution at all.

Now that Owen understands my position, he realizes that I never argued that we could ignore or throw out one letter of the Constitution. I agree with him completely that as long as the First Amendment is on the books we MUST have “freedom of speech,” ditto with the Second. However, I believe, and I think Owen does too, that “freedom of speech” can be applied in a way different—and by that I mean broader, more universal—than many or most of the framers of that document perhaps intended, or planned that it apply at that time.

Speaking of Freedom of Speech—I wonder what Owen thinks of how this Amendment should be interpreted. Using the same “original intent” logic that he and Cramer use, we may rightly conclude that the founders intended (at least for their time) a much narrower application of that wonderful ideal than we have today. And no, I’m not just referring to hard core pornography. I had a professor in law school who had a conservative jurisprudence similar to (although not exactly) Owen’s, & Clayton’s (and I cherish the experience in his class—we desperately needed the ideological diversity). He would argue, if you want to determine how the framers thought these rules should be understood, look at what they did. Look at the actions they took when those rules were enacted. Look at how they behaved. That is, if the Framers ratify X, but they immediately do Y, then we should conclude that Y is compatible with rule X. The same framers who gave us the First Amendment’s free speech clause also gave us the Alien and Sedition Acts. That ACT allows for the criminal prosecution of POLITICAL speech. Therefore, my professor concluded this act must have been constitutional—consistent with the free speech clause. So what was the First Amendment norm that he derived? Free Speech means that government cannot enact prior restraints on speech. Government can punish anything they want after the fact. If you don't like it, vote them out.

I wonder if Owen thinks this to be the “proper” understanding of the First Amendment's free speech clause, or if he, like me, favors a broader and more universal application of this timeless ideal.

I love these conservatives: The Constitution and the Declaration are both written in such magnificent language, lauding wonderful ideals in a very broad way. But then when we look at historical practice—look at how the Framers, in practice, dealt with things like “religion,” “equality,” “free speech,” “liberty,” “the pursuit of happiness,”—these conservatives reply the Framers' subjective intentions suggest that they really didn’t mean it, or that they really didn’t mean much—they meant these broadly enunciated rules to apply only to a wee number of circumstances. And you know something, I’ve seen leftists—I’m thinking the “critical legal theorists”—come to these exact same conclusions. But they do so to nauseate lawyers away from the concept of “original intent,” ala Bork and Scalia. "Yeah the framers intended equality to apply only to white, Protestant, propertied males," these leftists will claim (my same conservative professor informed us that both the Establishment and Free Exercise clauses were intended to apply only to Protestant sects—and he was a Catholic!). "Free speech only meant prior restraints." The basic message that my constitutional law professor (not the conservative; the guy who was my general con law professor is a leader in the critical legal studies field) gave to us regarding "original intent" was “What a bunch of assholes the Framers were!”

I consider myself a Madisonian, Jeffersonian originalist. These men posited wonderful ideals even if they always didn’t consistently apply, or live up to them. If I am guilty of anything, it’s wanting Madisonian & Jeffersonian ideals to apply to more folks and more scenarios than perhaps these men originally (subjectively) contemplated would be done in their own time.

Sandefur weighs in:

And he does so while stressing the "originalism" of our claim more so than I have been doing. Perhaps I should too. I don’t want the fact that I make a big deal out of how parts of the Constitution are written in such broad and general terms, capability of “flexibly” fitting different times, or different generations to take away from the notion that government has no business proscribing wholly consensual sodomy is entirely consistent with government exactly as our framers envisioned it in 1776 or 1789. Well, over at Freespace, Sandefur does a better job of explaining how the general principles, conceived by our Framers and properly understood, do not countenance government proscription of wholly consensual sodomy:

Government is instituted to “secure these rights,” among which are the rights to life, liberty, and the pursuit of happiness. It does not exist to ensure that people, in the privacy of their bedrooms, are doing only things that Clayton Cramer approves of. Moreover, if it does the latter, then it is violating the rights that government is created to secure. The Declaration itself complains about “officers…harass[ing] our people,” and “arbitrary government,” and specifically repudiates Mr. Cramer’s belief that legislatures are “invested with power to legislate for us in all cases whatsoever.”

In short, the Declaration and the political philosophy behind it make clear that a just law is a law which protects the people’s natural rights: which “shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.”

Without some proof that the state has the right to “protect” us from people having sex in the privacy of their own bedrooms, then, the state cannot lay claim to that power under the fundamental charter of our government—the Declaration—or under the Tenth Amendment, which only recognizes the powers which the Declaration conferred.

These principles are timeless; they are just as true today as they were in 1776. Jefferson and other founders desired a proper and consistent application of them. But there is the ideal world...and then there is the real world, which, often is far from ideal. And the world as it existed in 1776 or 1789 was far from the ideal one in which our Founders envisioned. Simply pointing out that people at that time countenanced sodomy laws does not mean that they are consistent with the ideals—with the original principles—that founded this nation, when as Sandefur points out, these laws appear to so greatly conflict with world where people have inalienable rights to “liberty” and “to pursue happiness,” as long as they don’t “pick the pockets” or “break the legs” of non-consenting parties.

I personally view the Lawrence decision as a broader, more consistent application of Jeffersonian ideals. This quote by Sandefur is spot on:

[B]ut it is also important to note that even if it was universal historical practice for American governments to illegalize private, adult, consensual sexual activity, that does not prove that this power is just. People ignore inconsistencies all the time, especially when these inconsistencies only harm unpopular minorities, such as slaves in the 19th century, or homosexuals today.

Clayton Cramer responded to my post on the 9th Amendment:

You can read it here.

First he quibbles with my observation that the “sodomy question” is specifically unanswered by the text of our constitution:

It's the same text that gives the states authority to outlaw murder, obscenity, price-gouging (for intrastate commerce), diploma mills, and thousands of other acts that the the states prohibit, and for which there is no specific authorization. Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

When I said the question is “specifically unanswered” by the Constitution, I was talking in very literal terms. That is, the Constitution specifically tells us that the President must be 35. But the word “sodomy” is not mentioned in that same sense; if it were, we wouldn’t be having this debate. Therefore, this question must be answered by applying a controlling general provision of the Constitution to this specific circumstance. Cramer argues that such provision is the 10th Amendment’s power of the states to outlaw various type of conduct. But it’s entirely possible that another general provision of the Constitution—the 14th Amendment’s Privileges or Immunities Clause—actually prevents the states from enacting sodomy laws. But neither clause specifically mentions the word “sodomy” (or “abortion” or “contraception,” etc.).

Cramer writes further:

Note that Amendment X doesn't say "rights...are reserved to the States respectively, or to the people." You might then be able to argue that the right to sodomy (or any of dozens of other actions) is "reserved... to the people." It says "power"--a power of the people to pass laws, directly, or through their representatives, sitting as state governments. Clear enough?

Cramer shows where his loyalties lie—not to “rights” of individuals, but rather to the “power” of legislative majorities to pass laws that bind minorities. But our framers demonstrated far more concern for individual rights than Cramer et al. Specifically they believed in natural rights that no government—federal, state or local—may properly infringe. And Barnett argues convincingly that the 9th Amendment’s unenumerated rights referred to such natural rights. Now I know it can be argued that the 9th Amendment binds only the federal government, and otherwise had nothing to do with limitations on state government power. But we can leave this aside. The 14th Amendment’s Privileges or Immunities clause refers to these same natural rights and this Amendment clearly DOES bind state and local governments.

These natural rights are not just enumerated, they are so vast that they are literally unenumerable. Barnett’s book has scads of quotes from founders demonstrating this.

James Wilson, a member of the Constitutional Convention, put it this way: “a complete enumeration of rights appertaining to the people as men and citizens….Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing.” p. 56.

Supreme Court Justice James Iredell stated: “Let any one make what collection or enumeration of rights as he pleases, I will immediately mention twenty or thirty more rights not contained in it.” p. 57.

There are many, many others. This sets the stage for Barnett’s later claim that the Constitution has what’s called a general presumption of liberty, that whenever the government infringes upon any liberty, it must justify its actions by demonstrating that it is acting pursuant to a recognized legitimate government function, and these are few in number, (and that most of these so called "morals legislation" don't cut it).

Next, Cramer argues that the “core meaning” of the Tenth Amendment at the time of its Framing again controls on this issue:

But what is the "core meaning" that the Tenth Amendment had at the time? The federal government has certain limited powers (which have been stretched beyond all recognition since); the state governments have all other powers not otherwise restricted by either the U.S. Constitution, or the state's constitution. The people are, within these constraints, sovereign. They are free to pass all sorts of laws as they see fit. In many cases, they have passed laws of unsurpassed brilliance and unsurpassed stupidity.

But the 14th Amendment’s Privileges or Immunities Clause did intend to restrain the states from violating those same unenumerable natural rights that the 9th Amendment refers to. This trumps the 10th Amendment claim that states are “are free to pass all sorts of laws as they see fit.”

We now start to get into my claim, that many of these “general” provisions of the Constitution, although they do have an original meaning that must be adhered to as a general guide, were intended to be “flexible,” to change with not only increases in technology, but also changes in attidutes:

Changes of attitudes? If there has been this great change of attitude to which Mr. Rowe refers, then the sodomy laws would all have been repealed. Some states did so; Texas had not, neither had Idaho. What Mr. Rowe really means is that judges have rethought the merit of these laws, and imposed their view onto the people of every state, with no basis in law but blind power grabbing.

Well all but 13 states did repeal their sodomy laws. I’d say that’s a pretty big change in attitude. And no, judges did not impose their view on the “people” of every state. Judges guaranteed the people of every state the liberty to have oral and anal sex within the privacy of their own homes. Bear in mind that 9 of those 13 states had sodomy laws that applied to heterosexuals as well. And since statistics show that some 90% of sexually active heterosexuals have oral sex (yes—this constitutes “sodomy” in those states where such laws apply to heterosexuals), this decision liberated the masses of folks in those 9 states that had such laws on the books. Most of them probably didn’t even know it.

In terms of "the basis in law," it's the natural right to liberty—one of the “immunities” of the 14th Amendment.

And as Randy Barnett has recently blogged concerning whether judges are “imposing their view onto the people,” acting as a super-legislature: “[I]t is simply a mistake, but an all-too-common one, to equate legislative power over the citizenry with judicial power over legislatures….This error results from unrealistically equating a majority of a legislature with the people themselves, an error the framers of the constitution were careful to avoid. A principal object of the Constitution was to protect the people from legislative majorities, indeed from popular majorities, when motivated by passion or of interest adverse to the rights of their fellow citizens (paraphrasing Madison in Federalist 10). Judicial nullification was thought to be one check among others. The only concern expressed during framing and ratification debates about this check is that it would be too weak, as indeed it has been.”

Next, concerning whether the framers really gave much thought to “sodomy” Cramer actually digs up an email I sent to him from February 24th about Jefferson and sodomy laws! (I have to admit, I am impressed that he saved this). The context of this letter is that Jefferson penned a criminal statute for VA where he deals with many issues, among them, buggery & sodomy. I explained that under the common law, “sodomy & bestiality” were considered “unnatural equals,” that is, they were both different “species” of the same “genus,” “buggery.”

But Jefferson decriminalizes bestiality, but doesn’t do the same with sodomy. From Jefferson:

"Bestiality can never make any progress; it cannot therefore be injurious to society in any great degree, which is the true measure of criminality in foro civili, and will ever be properly and severely punished, by universal derision. It may, therefore, be omitted. It was anciently punished with death, as it has been latterly."

Keep in mind that Animals don’t have “natural rights,” that is, it’s perfectly okay to enslave & slaughter animals (but not humans). Thus, having sex with an animal does not violate its rights; violating an animals (non-existent) rights cannot serve as the grounds for proscribing bestiality in a “natural rights” society. From my email:

But [Jefferson] doesn't do the same [decriminalize] with sodomy, instead he groups sodomy with rape. Now what on Earth would justify decriminalizing bestiality and not sodomy, even though he cited them as equals, as different "species" of the same "genus"? The only answer that I can think of is that sodomy can sometimes be done to violate the rights of non-consenting parties, and the same thing cannot ever be said of bestiality. Indeed, in the history of prosecuting sodomy laws, they were more often than not invoked to prosecute non-consensual sodomic acts. That would justify a connection between sodomy and rape.

To which Cramer responds:

So it appears that Jefferson did spend some time thinking about this--and proposed to keep the sodomy laws. Actually, Jefferson being something of a liberal, proposed to reduce the penalty for sodomy to castration. To the extent that sodomy prosecutions were associated with non-consensual sodomy, it was because few people committed consensual sodomy in public places--it was, after all, a capital crime in most states at the time.

I think my above paragraph answers this. Is there a sane person living today who can argue that homosexual relations are worse than bestiality? If we were to compare three behaviors, 1) heterosexuality, 2) homosexuality, and 3) bestiality, is there a person on Earth who possesses an ounce of logic who wouldn’t conclude that homosexual relationships are more analogous to heterosexual ones than to bestial ones? My point was that if Jefferson, applying the same natural rights principles that led him to decriminalize bestiality, were to properly apply them to wholly consensual sodomy, he would decriminalize this as well. That he didn’t so makes me conclude that sodomy laws had utility and “fit” his natural rights ideals by being used against non-consensual sodomic practices. If Jefferson would not conclude that wholly consensual sodomy should be decriminalized, but bestiality should, then I’d argue that he would be misapplying his principles & ideals.

Moreover, that Statute that Jefferson drafted, although he did mix his ideals into it, is by no means a perfectly ideal Jeffersonian criminal code in a first best Jeffersonian world. It was in fact, as Timothy Sandefur notes, “a revision of a preexisting legal code, and which was written in order to pass a legislature full of men who were not exactly in line with him intellectually.”

For instance, this is how Jefferson deals with some “supernatural issues” in the code: “All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, enchantment, or sorcery, or by pretended prophecies,” is punished “by dunking and whipping, at the discretion of a jury, not exceeding fifteen stripes.”

Anyone with a strong knowledge of Jefferson’s personal beliefs knows that he regarded such supernatural beliefs as illogical and absurd.

Jefferson was not someone who believed that “Truth” was historically determined; he believed in universal principles of Truth applicable everywhere to every time based on man’s use of his reason. But he also realized that as time goes on, our opinions would change, and that we would, through gathering more knowledge and rethinking our ideals, come to conclusions that radically differed from those the people had in 1789, just as the “knowledge” of liberal democracy radically differed with the “erroneous” conclusions of those who posited “divine rule of kings.”

From Jefferson:

[L]aws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.

Okay, enough for now. I'll have to handle issues relating to Brown v. Bd. of Edu. later when I have more time.

So what are we left with? The Founders did believe in unenumerable natural rights that bind both the federal government through the 9th and the states through the 14th. They were so vast that they rightly give rise to a “presumption of liberty,” that is, anytime a government wishes to pass a law it must be justified as a “legitimate government function.” Cramer et al. might be willing to go this far (or might not)—but they would probably argue that whatever is a “natural right” must have been understood to be one, at the time the relevant constitutional texts were enacted. I see no evidence that the framers intended to “lock us in,” to their 1789 or 1868 mindset regarding how they, back then, might have derived such a “specific answer” from a general clause (and it didn't seem, based on my Jefferson quote, that he desired this). One reason why the constitution has lasted so long and not become obsolete is because they used broad language such as “make no law abridging the freedom of speech.” If the founders intended to provide specific answers to all of these questions, they would have written them into the text (and in some cases, they did). Instead they intended later generations to figure these things out, as is appropriate for the people living at that time.

Friday, May 07, 2004

Barnett Right -- Cramer, Bainbridge, Courreges Wrong!

The debate regarding the proper meaning of the 9th and 14th Amendments has once again erupted in the blogsphere. Personally, I side with Randy Barnett. Barnett’s critics this time are Clayton Cramer, Steven Bainbridge, and Owen Courreges. Barnett has already effectively answered their claims in his book.

Barnett and other bloggers have already responded in a number of posts. I want to answer to one specific, but powerful, criticism that Barnett’s adversaries put forth. Cramer, et al., use Barnett’s defense of the recent Lawrence decision on originalist grounds, to criticize his overall approach. Their argument goes something like this: At the time the Constitution was written, “sodomy” was outlawed in most places. If you asked the Framers of these relevant Constitutional texts, specifically, “do you think that what you are ratifying grants the ‘right’ to practice sodomy,” almost all of them would reply, “no.” But since that question was never asked of the Framers (and since they didn’t supply this specific answer in the text); we must adduce the answer. And how did we so do? By looking to what the framers did, seeing what laws were (un-controversially) on the books, etc., at that time. Since all of the states had (uncontested) “sodomy” laws on their books, and since the framers generally at that time (subjectively) did not conclude that the adoption of the 9th or 14th Amendments would interfere with the existence of such laws, we rightly conclude that the 9th or 14th Amendments should not in any way prevent states from criminalizing this conduct on constitutional grounds.

The problem with this line of reasoning is that it is itself, “non-original.” That is, the framers themselves did not intend future generations to interpret the Constitution in this manner. There are indeed certain provisions of the Constitution that are “specifically timeless”—that is, because the answer is easily found within the Constitution’s text, the document, as originally written, must be interpreted in this or that specific manner on a particular question as long as that clause or provision in question has not been amended. For instance the Constitution states, “neither shall any Person be eligible to that Office [the Presidency] who shall not have attained to the Age of thirty five Years….” In other words, you must be at minimum 35—not 34, not 36—years of age, in order to be President. Specific question, specifically answered.

However, not all of the Constitution was written in such precise terms. The founders knew that they couldn't nor shouldn’t answer all of the specific Constitutional questions that might later present themselves, so they intentionally used “vague” (although not “vacuous”) language, to serve as a general guide, as they intentionally left specific questions to be answered by future generations. As Barnett writes:

Indeed, terms and phrases are often chosen by legal drafters precisely because they are less rather than more precise than other available formulations. Drafters who, perhaps for political reasons, wish to avoid appearing to endorse a controversial result in a particular situation may use a phrase whose meaning is sufficiently “fuzzy at the edges” that it is unclear whether or not it would reach that result.

Restoring the Lost Constitution, p. 118.

In other words, when constitutional texts are written with such a level of generality, we rightly conclude that the proper answers to specific questions relating to these texts do not turn on how the Framers at that time would most likely have subjectively answered, but rather on how the society at the present time the case and controversy is presented should answer consistent with the original “core meaning” of the rather general phrase. This doesn’t make the Constitution a “living document” whose general rules change with a historical whim—but it does make the constitution into a “flexible” document that supplies unchangeable general norms that are nonetheless capable of “fitting” specific future circumstances where changes in culture, knowledge, and/or other circumstances, have occurred. As Barnett writes: “Because its language is deliberately vague in places, the Constitution can be applied to far more situations and changed circumstances than had every provision been expressed with rule-like precision.”

None of Barnett’s critics can point to a particular text in the Constitution (as we could regarding the suitable age for the Presidency), that specifically tells us that states could outlaw “sodomy.” This question simply is specifically unanswered by our constitution. And when we don’t have a precise answer, the proper way to interpret the Constitution is by an objective inquiry into the “core meaning” that the general text had at the time, and the subsequent adoption of a more specific bright line rule that is “consistent with the original meaning,” but not necessarily “deducible from it.” The fact that the US Constitution on its face does not answer the "sodomy" question leaves a “gap” in the Constitution. Proper jurisprudence must fill the gap between the “abstract or general principles of the kind found in the Constitution and the rules of law that are needed to put these principles into action. This does not mean, however, that the choice of rules is unguided by these abstract or general principles.”

Richard Posner, although not quite an avowed “originalist” like Barnett, responds similarly that the founders did not intend the Constitution to be interpreted in the way that Bork, et al., desire:

When a constitutional convention, a legislature, or a court promulgates a rule of law, it necessarily does so without the full knowledge of the circumstances in which the rule might be invoked in the future. When the unforeseen circumstance arises—it might be the advent of the motor vehicle or of electronic surveillance, or a change in attitudes towards religion, race, or sexual propriety—a court asked to apply the rule must decide, in light of information not available to the promulgators of the rule, what the rule should mean in the new setting. Overcoming Law, at p. 231.

I think I can anticipate Clayton Cramer’s response: The Framers may not have known of the existence of condoms, DVDs, machine-guns or the broadcast media, but they did know that “sodomy” existed. Therefore “sodomy” is not an “unforeseen circumstance” that could not have been dealt with. But what of changes in attitudes, values, knowledge, or the “rethinking” through certain “ideals” in way different, but perhaps broader and more consistent, than the framers' original contemplations? (For instance, is there any evidence that any framer really spent much time deliberating the legitimacy of “sodomy” laws? Maybe if some of the framers, Jefferson & Madison for instance, truly thought through their ideals—one of which was that government may only proscribe such behavior that is “injurious to others,” that picks the pockets or breaks the legs of non-consenting parities—that they would rightly conclude that government has no business proscribing wholly consensual “sodomy.”)

Finally, the approach that Cramer, et al. take is untenably because it leads to ghastly results. As Posner notes:

No constitutional theory which implies that Brown v. Board of Education was decided incorrectly will receive a fair hearing nowadays, though on consistent applications of [Bork’s, Cramer’s type of] originalism it was decided incorrectly. Yet on its face the equal protection clause guarantees not legal equality but merely equal protection of whatever laws there may happen to be, and its background was the refusal of law enforcement authorities in southern states to project the freedmen against the private violence of the Ku Klux Klan.” Id. at p. 247.

We can pose the same subjective question regarding the specific permissibility of “segregated public schools” in the “minds” of those who ratified the 14th Amendment and come forth with this conclusion: Segregated public schools (as well as other types of segregated public instititutions) were prevalent and uncontroversial at the time the 14th Amendment was ratified. There is no evidence that the framers who ratified the 14th Amendment believed that it would mandate the end of segregated schools. If the 14th Amendment properly outlawed segregated public schools then Brown, like Lawrence, outlawed something “that the ratifiers had no idea of outlawing.” Id., citing, Bork, The Tempting of America, at p. 214.

Yet, Barnett’s original jurisprudence—one that looks primarily to see if the specific question has been answered by the text in question (and in Brown, like Lawrence, the answer is no), but then concerns itself with a general application of the principles contained within the constitutional text, “consistent with the original meaning”—does allows for an originalist defense of Brown (and Lawrence).

Bork flinched on this issue and couldn’t bring himself to publicly state that Brown v. Board of Education was improperly decided even though he laid the groundwork for this inevitable conclusion (and Posner takes him to task for it).

Other originalists—Lino Graglia, Raul Berger, Joe Sobran, and others—to their credit in courageously applying a similar original jurisprudence have held that Brown was wrongly decided. I wonder how Bainbridge, Cramer, Courreges, et al. feel about this case?
False Quotes from our Founders on Religion:

First, I want to thank Ed Brayton for the link under his “interesting people,” section of his blog. Brayton has an excellent post elsewhere on his site entitled Answering a "Christian Nation" E-mail, where he deals with those theocratic revisionists who seek to destroy the line between Church & State and who otherwise absurdly claim that our public institutions are founded on Biblical principles.

I’ve debated this subject quite a bit on different Internet sites. And when I do, the theocrats repeatedly cite the same certain “side quotes” (as opposed to the text of Founding documents, or the Federalist papers) to prove their case. Many prominent religious conservative figures have heavily relied on these same quotes in their writings to prove the same point. Yet as I’ve discovered, (with the help of Brayton and others) many of these quotes are simply false.

Most of these false quotes can be traded back to one man: David Barton, who penned a book entitled, “The Myth of Separation,” that is riddled with factual errors and outright falsehoods. (This is not the first time that the religious right has wholeheartedly embraced “research” that ends being exposed as totally fraudulent. Regarding social science on homosexuality—this reminds me of how fundamentalists embraced the dubious work of one Paul Cameron. The history of the use of this man’s fraudulent work boggles the mind. After Cameron’s work is repeatedly exposed as total horseshit, some conservative thinker or group cites Cameron’s figures only to have their heads handed to them on a plate. I won’t go into too much detail on this now—it could be the subject of another [very long] post; follow my links if you are interested. Recently, the Heritage foundation included some Cameron’s figures on a database on homosexualityonly to be properly rebuked by Andrew Sullivan and others—and they ate crow & took them down. Previously, Bill Bennett publicly cited the Cameron lie that median gay lifespan is 43, only to be rebuked by, again, Andrew Sullivan et al., and Bennett too ate crow and retracted his support for this figure.)

Here are some of the false quotes that are thrown in my face:

On July 4, 1821, President Adams said, "The highest glory of the American Revolution was this: It connected in one indissoluble bond the principles of civil government with the principles of Christianity."

And here is how Brayton deals with it:

This is another textbook example of what happens when quotes are simply passed along and repeated without anyone bothering to check the original source to see if it's accurate. This is why, in scholarly documents, footnotes are used to provide specific documentation of the source of a quote. Let's follow the trail backwards and see where it leads. The quote is used by David Barton, who is nearly always the modern source of false quotations from the founding fathers. We'll see an example of another one below. Barton did not get it from the original documents, he got it from another book of quotations by William Federer called America's God and Country: An Encyclopedia of Quotations. So Federer got it from the original, right? Wrong. Federer's footnote is to a book by John Wingate Thornton from 1860. The Thornton book is full of quotations and footnotes locating the source of those quotes. But these words, attributed to John Quincy Adams, are not in fact a quote at all. The words belonged to Thornton. The words are not in quotation marks and there is no footnote giving a source. And no one has ever located an original source from Adams that contain those words, of even a similar sentiment to it. The quote, to be blunt, is a fake. Adams never said it. But this is an excellent example of what passes for historical scholarship among the Christian Nation proponents - the truth doesn't matter so long as something can be made to appear as supporting their position.

This time it’s James Madison who is falsely attributed as saying this:

"We have staked the whole future of all our political constitutions upon the capacity of each of ourselves to govern ourselves according to the moral principles of the Ten Commandments."

And Bratyon’s response:

Another excellent example of the shoddy scholarship of David Barton and his ilk and another quote that simply does not exist. The quote appears in Barton's book, The Myth of Separation, but the footnotes are not to any document written by Madison at all. He cites two other sources, neither of which quotes any document from Madison either. No one has ever located the quote in any of the literally tens of thousands of pages of original documents from or about Madison. The historian Robert Alley, a Madison scholar, has done an exhaustive search and finds nothing even close to this quote from Madison himself. It is entirely inconsistent with everything else that Madison has to say on the subject. After several years of being hammered for his use of such quotations, Barton finally wrote an article admitting that there were a large number of quotes that have never been confirmed that he uses.

Brayton also informs us that there is no evidence that George Washington ever said this: "It is impossible to rightly govern the world without God and the Bible."

Now that I’ve praised Brayton’s work, let me offer one criticism: He missed one big whopper—also put forth by Barton. (And up until recently I too thought that this founder said the following quote): It’s by Patrick Henry:

"It cannot be emphasized too strongly or too often that this great Nation was founded not by religionists, but by Christians; not on religions, but on the Gospel of Jesus Christ. For that reason alone, people of other faiths have been afforded freedom of worship here."

There is no evidence, outside of David Barton, that Patrick Henry ever uttered these words. And this in fact is one of those quotes that Barton mentioned in his article that he admitted had never been confirmed (if anyone knows where I can access online this mea culpa article written by Barton, please let me know).

One the one hand, I first believed the quote because Patrick Henry did indeed try to integrate Church & State in VA—but lost the battle to do so there much to the hard work of Madison, Jefferson, and others. But even keeping this in mind, upon further examination, given what we know Henry's militant anti-federalist views, he could not possibly have uttered these words.

Patrick Henry would never have used the words “this great nation,” in that context. First, the date given for this quote is 1776 (I have seen others state 1778—but let’s just say, it was shortly after the we declared our independence but well before the US Constitution was adopted), we technically were not yet a “nation.” Now I realize, there are some thinkers—most notably Lincoln—who theorize that we were one nation at that time, that the Union actually preceded the existence of the states. And indeed some founding fathers—Madison, for instance, who saw no problem with the Federal government enforcing natural rights against the states—might have been sympathetic to this view. But this was by no means a unanimous view of the Founders. And if any of the founders would have held to this view, it would have been the strong federalists, like Madison. The anti-federalists— especially the militant ones like Henry—simply did not believe during 1776, that the united States was a “great nation,” but rather that we were a collection of “Free and Independent States.” Back then the united (and this word was purposefully not capitalized in the Declaration) States (this word was) was referred to in the plural sense. At least every single reference I have ever seen Henry make to the United States, he spoke in the plural sense.

Patrick Henry, in fact, voted against the US Constitution because he thought that it gave the federal government too much power. Particularly, he objected to the phrase, "we the people of the United States," (he preferred "We, the states") because this implied one "great consolidated government," which Henry regarded as "pernicious, impolitic, and dangerous." Henry made it clear that he preferred "a confederation" with "the States" as "agents of this compact."

In short, there is no way that Henry, as a militant anti-federalist and loather of the idea of one great centralized American nation, would have referred to the United States, shortly after we Declared Independence, as “this great nation.” It absolutely defies credulity.