Natural Rights -- What is Surrendered, What is Retained?

I've been reading a number of different modern and classical thinkers on the Hobbsean/Lockean natural rights theory which undergirds the Declaration of Independence and our Founding. Many modern thinkers on both the left and the right simply don't take the theory seriously. They believe it to be just fictional rhetoric and itself riddled with internal contradictions. Even among those thinkers who do presently defend the theory, there is much disagreement on how the theory should be understood. And even during the founding era, there were variants on how to properly understand and apply the theory.

As the theory goes, men have certain "natural rights" in a state of nature (before civil government has been instituted). "Imperfections" in the state of nature (the fact that there is no police power with a monopoly on legal force to effectively enforce our natural rights) lead men to form civil society where they give up some of their natural rights -- that is trade their natural rights for civil rights -- to gain the security that only government can provide.

As John Jay put it in Federalist 2, "Nothing is more certain that the indispensable necessity of government; and it is equally undeniable that whenever and however it is instituted, the people must cede to it some of their natural rights, in order to vest it with requisite power."

The central question to be grappled with is: What is given up and what is retained? More socially conservative folks who defend liberal democracy (Walter Berns) tend to argue that we give up more to government and retain less. Indeed, it's only by virtue of trading our natural rights for civil rights, which can then be diminished by government, that makes liberal democracy defensible for someone like Berns, who writes in Making Patriots:

[T]he Founders generally knew, and...emphatically say in Federalist 2...when instituting a government, the people are expected to surrender "some of their natural rights, in order to vest [the government] with requisite powers." But [Justices] Holmes and Black are unmindful of this. Unlike Madison and the other authors of the First Amendment, they treat the constitutional right of freedom of speech as if it were a natural right, the right men possessed in the state of nature; there, as autonomous individuals, men might speak (and do) as they please without regard to political consequences because, there being no political community, nothing said (or done) could have political consequences. But, as the Founders made clear, that ceased to be the case when men entered civil society and formed a political community. pp. 136-7.

Moreover, in a letter to Commentary defending government censorship, he wrote, "One of the blessings of government is that it can, by due process of law, regulate what we say and print."

But even Berns recognizes that we don't surrender all of our natural rights to government, that we retain some.

It is, of course, true that he is required to surrender his natural rights when leaving the state of nature -- except of course, the few unalienable ones, the surrender of which would contradict the very purpose of the flight from nature -- but in exchange, as it were, he gains the security that only government can provide. For example, the Constitution makes it clear that he cannot be deprived of life, liberty, and property without "due process of law." Making Patriots, p. 19.

In reading Berns's writings, the only "right" which I've seen him identify as "unalienable" and hence one that government cannot regulate is that of conscience. Of course, in reading Madison's Memorial and Remonstrance, we see conscience clearly identified as an unalienable right.

But there is a problem, it seems to me, with Berns's analysis: "Liberty" (and "The Pursuit of Happiness" and "Life") itself, in its broad and general sense, is identified as an "unalienable right" in the Declaration of Independence. This, I think, is a reason why thinkers on the left and right don't take the Declaration seriously. For instance, as Robert Bork writes in Slouching Towards Gomorrah:

When they had won their independence and got down to the actual business of governing a nation, the Founders were not so lyrical [as they were in the Declaration]. The "unalienable Rights" of the Declaration turned out, of course, frequently to be alienable. The Fifth Amendment to the Constitution, for example, explicitly assumes that a criminal may be punished by depriving him of life or liberty, which certainly tends to interfere with his pursuit of happiness. p. 57.

It's not just right-wingers like Bork, however. Legal positivism is also deeply ingrained in leftist jurisprudence as well. For instance as Alan Dershowitz writes in America Declares Independence (his thoughtful book on the Declaration):

The rights stated in the Declaration, however, are so abstract as to be nearly meaningless. If Jefferson could indeed assert them as self-evident, it was only because they are stated in so broad a manner that their controversial application to any particular problem of policy is obscured by the fog of generality. Everyone can agree on the importance of rights to life, liberty, and the pursuit of happiness, but only because agreement about such sweeping terms amounts to almost no binding agreement at all.

For example, the abstract right to life is uncontroversial, but when reduced to its particulars, it provokes the most divisive disputes. This right has been cited by opponents of abortion, capital punishment, assisted suicide, war, deadly force, animal rights, and other hot-button issues. It also has been cited by proponents of abortion (the mother's right to life), capital punishment (the rights of future victims), gun control, just war, deadly force, and medical research on animals. The right to life has become an emotional cliche equally available to all sides on every life and death issue. p. 95.

Even back during the Founding there was disagreement on whether and how we bring our natural rights with us from the state of nature when forming civil society. For instance, as Philip Hamburger writes in Separation of Church and State:

Jefferson also changed the context of ideas in matters not involving religious liberty. For example, he asserted that individuals do not give up any natural right when entering into society. See Philip A. Hamburger, "Natural Rights, Natural Law, and American Constitutions," Yale Law Journal, 102: 907, 958 (1993). Although other writers adopted similar ideas, Jefferson's formulation was unusually dramatic. p. 146, footnote 5.

Let me wrap this up with an attempt at doctrinal coherence on natural rights. On the one hand we have Jefferson et al. (the more libertarian view) arguing that men retain their natural rights -- or at least, most of them -- even in civil society. And we also have Walter Berns's which is that we trade most of our natural rights for civil rights, save for the few "unalienable natural rights." Everyone I think agrees that we give up some natural rights and we retain some natural rights when entering into civil society. But if liberty itself is one of those "unalienable rights" which we retain when we enter civil society, then obviously we retain, contrary to Berns's assertion "very few" natural rights, many rights, indeed so many rights that they are unenumerable, hence the need to group them under the broad rubrics of "liberty" and "pursuit of happiness."

Another paradox: Liberty on the one hand is an unalienable right. But when entering civil society, we have to give up *some* liberty, don't we? Yes. Here is how I would resolve the paradox: Because men are by nature free and equal, and because men carry with them into civil society their unalienable natural rights, of which liberty itself, in its general and broad sense, is one, men only surrender to government that which is necessary to better protect their unalienable rights. Therefore, government by right generally has no legitimate power to involve itself in most concerns, certainly not ordinary "moral" concerns and certainly not to enforce a detailed, Thomistic understanding of the natural law.

The best scholarly work defending this theory of natural rights is of course Randy Barnett's Restoring the Lost Constitution. In it he argues, that when government acts, we must adopt a presumption of liberty, and the burden is on government itself to justify its actions and demonstrate that it is furthering the protection of our rights, which is why government exists in the first place.

Racer X and Rock Virtuosity:

I had no idea that Racer X had reunited. They are, if you don't know, a hair metal band from the 80s LA scene, who also happen to have some of the greatest technical rock players. Some of their stuff is cool; some of it was incredibly bad. Guitarist Paul Gilbert originally quit the band and joined Mr. Big who had a few hits back in the day (another band comprised of phenomenal players, but wrote a lot of lame, pop-oriented tunes).

Here is what I see as the significance of the musicians in Racer X: Jazz and classical music always had it shares of virtuosos. You pretty much have to be a virtuoso to make it in classical music*; jazz is almost as demanding a form of music, but does have its share of non-virtuosos. Rock on the other hand, was more of a relatively new form of music and has very simple, humble origins (hence the term "garage rock"). Rock has always had its great players. But for years, it had relatively few people who mastered the instrument in a technical sense, in the same way that say, Horowitz mastered the Piano or John Coltrane mastered the sax. Rock was more the domain of (and still is in a sense) "raw creative" talents.

Eventually rock musicians started playing their instruments better. While guys like Hendrix and Clapton weren't virtuosos in the sense that Segovia was, they still impressed the "garage" rock musicians with what they could do technically and set higher technical (as well as artistic) standards. Eventually someone like Stevie Ray Vaughn came around and could play everything Hendrix could, note-for-note and then some. No one in Hendrix's day could do that.

The first real virtuosos to play rock music were of course, the 70s fusion musicians like John McLaughlin, Al Dimeola, Allan Holdsworth, and Steve Morse. Even when Eddie Van Halen and Randy Rhodes hit the scene, although they set new technical standards for what was being done in hard-rock/heavy metal at that time, they still weren't playing on the same level as McLaughlin, et al. (but were getting close).

And the race was on to "out-do" Van Halen and Rhodes. When Yngwie Malmsteen hit the scene, he blew many people away with his right handed picking technique and the way in which he incorporated *some* classical music influence (Malmsteen and like players tend to overstate their knowledge of and the degree to which their music really does reflect classical influences. The melodies of Bach, for instance, are far too elegant than what ordinarily "fits" with rock. The augmented 2nd interval in the harmonic minor scale -- something very characteristic to Yngwie's style -- is rarely if ever heard in baroque melodies. Yngwie's style has a more "gypsy" quality that is more characteristic of some late romantic music. But, by reading his interviews, I'm not sure if Yngwie is aware of this).

Anyway, Yngwie set a new standard, which of course had to be out-done. By the time we got to Paul Gilbert and Racer X, rock musicians (well, Gilbert in particular) had reached the level of technical virtuosity on par with John McLaughlin, Al Dimeola, etc. If you don't believe me, listen to Paul Gilbert's solo on a cover of While My Guitar Gently Weeps.

Indeed, there has been a nice little convergence of styles, a "fusion" if you will, of 70s oriented fusion ala Mahavishnu and Dimeola, instrumental rock ala Van Halen, Vai, and Satriani, and 70s oriented Progressive rock ala Yes, ELP, Kansas, and Genesis. John Petrucci of Dream Theater comes to mind as the guitarist (and band) that typifies this style.

Check out Paul Gilbert on "Y.R.O." which stands for "Yngwie Rip Off." Gilbert incorporates part of Paganini's "Perpetual Motion" into the tune and you can hear the entire excerpt of the Paganini section in the clip.

*When I use the term "classical" I'm referring to "concert" music that encompasses the pre-Baroque to the post-modern era, not just the "classical" era of Beethoven and Mozart, etc.

Federal Government and Equality:

Over at Volokh, David Bernstein notes that the 14th Amendment with its Equal Protection Clause only applies to the states. Therefore, how could the Supreme Court rule, as it did in Bolling v. Sharpe, that the federal government is likewise constrained in its ability to discriminate (segregate schools)? Supposedly, the Due Process Clause of the 5th Amendment "reverse incorporates" the Equal Protection Clause against the federal government.

Sorry, I don't buy it. I also don't buy the notion of "Substantive Due Process." The Due Process Clauses of both Amendments are "procedural" clauses.

However, substantive norms of both liberty and equality are central to both the original founding and the 14th Amendment. Those substantive norms are properly contained in the Privileges or Immunities Clause of the 14th. The Equal Protection Clause too is a procedural clause, directed mainly against the executive branch of state governments demanding equal protection of whatever general laws happen to be on the books.

So does the P or I Clause then "reverse incorporate" against the federal government? No, the Declaration of Independence holds that all men are by nature equal. Equality as with liberty is a natural right. And Randy Barnett has aptly demonstrated (although with little discussion on the substantive right to equality) that the 9th Amendment guarantees our natural rights against the federal government.

The substantive norm of equality that constrains the federal government properly belongs in the 9th, not the 14th or 5th Amendments. Now, I've concluded this by my own logic and if I did read some more distinguished scholar originally putting forth this idea, I don't remember. But someone has got to have made this case before me? Anyone know?

My Old School:

Given that I graduated from a music school with a very strong jazz foundation, this may surprise some people: Jazz in its pure form really doesn't appeal to me.

When I was taking classical guitar lessons in my late teens, and planning on attending Berklee, I thought I might be a jazz guitarist and even bought a hollow body Gibson guitar. It never happened though (I've since sold that guitar). My music is more rock/blues based -- that's the dominant form (I also play classical guitar). Other styles like jazz and country, I enjoy when they are mixed in with rock in a "fusion" of styles (with of course, rock or blues being the dominant element). For country-fusion, I like Southern Rock, like Lynyrd Skynyrd and the Outlaws, Neil Young and Bob Dylan's country tinged music, etc. For jazz-fusion, I like Steely Dan and Sting, and much of the 70s fusion music like Jan Hammer and Mahavishnu Orchestra, Al Dimeola, etc. For rock, jazz, and country, there is (my favorite) the Dixie Dregs.

There were many at Berklee who similarly weren't jazz based (any many of them complained about the jazz foundation that we were given in our music theory class; although that stuff was really valuable -- lots of great ideas that can be mixed in with rock or pop). See, when Berklee first opened, it was established as both a jazz school and a contemporary "popular" music school, because jazz was the contemporary popular music of that age. The conservatories wouldn't think studying jazz; it wasn't thought of as a serious form of music. When Miles Davis studied at Julliard, he used to blow off his classes (which were strictly classically based) and learn Dizzie Gillespie's music in the practice halls, which wasn't part of the curriculum back then at Julliard.

But today, the conservatories have, by in large, embraced jazz as a serious form of music, although classical music is still dominant (which it should be). Rock, blues or country, as far as I know, still aren't on the curriculum at most conservatories.

But Berklee had it all. There was a "jazz" school, and a "rock" school there. I fell into the latter category. There was even a small classical (conservatory like) school at Berklee as well. You see, in order to give out baccalaureate degrees in music, accreditation bodies required that students take certain number of credits in classical harmony and counterpoint, and conducting. So Berklee hired a few conservatory like Professors. That in turn led to a composition department and later a really cool film-scoring degree.

Berklee has a lot of famous alum. Most, it seem, never graduated; they just attended for a few semesters and then moved on. One of my dorm room hang out buddies, Matt Rubano, is now in a band called Taking Back Sunday. And an acquaintance from across the hall on the 5th Floor John Blackwell has been Prince's drummer for some time.

Finally, that pic is me graduating. And that's James Taylor, our graduation speaker, giving me my diploma.

Jefferson on Deism, His Definition May Surprise You:

Everyone who has read my work knows that I've long pondered the Founders & Deism issue. My research has led to some surprises. One issue I'm still grappling with is whether it is proper to categorize someone as a "Deist" even if he believed in an interventionist God. In this day and age, we've come to associate Deism with the belief in a cold, distant, non-Intervening Providence. Yet, surprisingly, many of the men we associate with Deism, notably Jefferson and Franklin, spoke of a warm intervening Providence.

On one thread, I remember explaining to someone that many of the men who understood themselves to be Deists believed in an intervening God. For instance Ben Franklin, as far as I know, never referred to himself as anything other than a Deist in his adult life, also remarked

I have lived, Sir, a long time, and the longer I live, the more convincing I see of this truth: that God governs in the affairs of man. And if a sparrow cannot fall to the ground without His notice, is it probable that an empire can rise without his Aid?

But Franklin still understood himself to be a Deist (I think). One commenter on the thread where I noted this replied that since Deism by definition posits a non-Intervening God, Franklin et al., must have been confused as to what they really were.

But that's only if today's present dictionary definition of Deism matches how the "Deist" founders understood themselves. It could very well be that Deism became to mean utter rejection of all Revelation and belief in a strict non-interventionist God some time after the Founding, as a later progression in the Enlightenment.

But anyway, here is Thomas Jefferson's definition of Deism in an 1803 letter to Dr. Benjamin Rush:

II. JEWS. 1. Their system was Deism; that is, the belief of one only God. (my emphasis) But their ideas of him & of his attributes were degrading & injurious.

....

1. [Jesus] corrected the Deism of the Jews, confirming them in their belief of one only God, (my emphasis) and giving them juster notions of his attributes and government.

So according to Jefferson, Deism simply means belief in only one God, which indeed seems to be an early, commonly accepted definition of Deism. Similarly (small u) unitarianism simply means disbelief in the Trinity. The Capital U Unitarians were a sect of the Congregational Church (to which John Adams belonged).

And the terms "Deist" and "unitarian" seemed to be used interchangeably to describe those, like our key framers, who believed in one God but wanted to understand Him on rational grounds and hence broke with many of the traditional Christian orthodoxies. And these terms "Deist," and "unitarian" were not, according to founders like Jefferson and Adams, mutually exclusive with "Christian." Indeed according to such founders (following Joseph Priestly) Christianity had been corrupted through dogma, and that corruption was not only represented in clerical dogma but also in the Bible itself whose entire history was "defective and doubtful" in Jefferson's words and contained "errors and amendments" in Adams's (thus it was not inerrant).

These corruptions included doctrines like the Trinity, the Virgin Birth, predestination, eternal damnation, many of the miracles in the Bible which seemed to defy reason and science, and many others.

Christianity, free from such corruptions, would be in complete congruence with the Deistic and unitarian teachings to which our key founders adhered.

Russell Kirk's definition of Deism, in The Roots of the American Order, seems pretty on the mark, for the Founding, except for the passage which I've it italicized:

Deism was neither a Christian schism nor a systematic philosophy, but rather a way of looking at the human condition; the men called Deists differed among themselves on many points....Deism was an outgrowth of seventeenth- and eighteenth-century scientific speculation. The Deists professed belief in a single Supreme Being, but rejected a large part of Christian doctrine. Follow Nature, said the Deists (as the Stoics had said before them), not Revelation: all things must be tested by private rational judgment. The Deists relied especially upon mathematical approaches to reality, influenced in this by the thought of Sir Isaac Newton. For the Christian, the object of life was to know God and enjoy Him forever; for the Deist, the object of life was private happiness. For the Deists, the Supreme Being indeed was the creator of the universe, but He did not interfere with the functioning of His creation. [my emphasis] The Deists denied that Old and New Testaments were divinely inspired; they doubted the reality of miracles; they held that Jesus of Nazareth was not the Redeemer, but a grand moral teacher merely. Thoroughly rationalistic, the Deists discarded all elements of mystery in religion, trying to reduce Christian teaching to a few simple truths. They, and the Unitarians who arose about the same time, declared that man was good by nature, not corrupt; they hoped to liberate mankind from superstition and fear.

Save for the part on the Creator not interfering with the functioning of His creation, Kirk's definition is pretty close to the "Deism" of the Founding. It would be more accurate to say that Deists like Jefferson, Adams, and Franklin (and probably Madison and Washington) didn't believe in the Miracles and other behaviors attributed to God found in Revelation which contradicted the laws of Science and Reason. Therefore when God did intervene, He did so while acting consistent with the laws of Science. He did not for instance, walk on water, part the Red Sea, or turn Lot's wife into salt. This explains why the Deists, like Jefferson and Adams could shirk at some of the Miracles and Prophesies recorded in the Bible which seemed so far fetched, but still believe in a God who intervened in the affairs of men. Essentially they believed in a God who did play dice with the universe.

What I'm looking for is founding era writings which understands "Deism" as active belief in a non-interventionist God. Also, I know little of the thoughts of Thomas Paine and Ethan Allen, both of whom embraced the term "Deist." Did they argue for this?

Finally, see this excellent article by Gregg Frazer who argues for a new term to describe the beliefs of Jefferson, Adams, Franklin, Madison, Washington, and others: Theistic Rationalists.

Iraqi Constitution and Islam:

There is good and bad news about the Iraq Constitution (which looks likely to pass), religion, and democracy.

First, the obvious bad news: The Iraqi Constitution explicitly does what our Founders refused to do with Christianity—found Islam as the official religion of the nation, make it a source of legislation, and actually give the tenets of Islam constitutional status.

Article 2:

First: Islam is the official religion of the State and it is a fundamental source of legislation:

A. No law that contradicts the established provisions of Islam may be established.

Our Constitution on the other hand says nothing about God or Christianity (except in the most nominal sense like the customary way of stating the date), which is why it was dubbed by two Cornell scholars as "The Godless Constitution" and opposed by some religious fundamentalist in the founding era for refusing to invoke God, Christianity, or the Bible and covenant with Him (as did many of the colonial charters of an earlier, less-Enlightened era). Moreover, Article VI and the First Amendment of the US Constitution are magnificent statements of religious liberty and neutrality. I suppose we couldn't expect Iraq to copy our Constitution verbatim.

Article 2 in Iraq's Constitution sounds like it imposes a Sharia like system, which brings to mind all of those brutally frightening and oppressive rules in the Koran...but not so fast. Right after Article 2(A), we see:

B. No law that contradicts the principles of democracy may be established.

C. No law that contradicts the rights and basic freedoms stipulated in this constitution may be established.

Further we see in Article 2:

Second: This Constitution guarantees the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice such as Christians, Yazedis, and Mandi Sabeans.

And Article 7 says:

First: No entity or program, under any name, may adopt racism, terrorism, the calling of others infidels, ethnic cleansing, or incite, facilitate, glorify, promote, or justify thereto, especially the Saddamist Baath in Iraq and its symbols, regardless of the name that it adopts. This may not be part of the political pluralism in Iraq. This will be organized by law.

And in SECTION TWO: RIGHTS AND LIBERTIES, we see:

FIRST: Civil and Political Rights

Article 14:

Iraqis are equal before the law without discrimination based on gender, race, ethnicity, origin, color, religion, creed, belief or opinion, or economic and social status.

Article 15:

Every individual has the right to enjoy life, security and liberty. Deprivation or restriction of these rights is prohibited except in accordance with the law and based on a decision issued by a competent judicial authority.

Article 16:

Equal opportunities are guaranteed for all Iraqis. The state guarantees the taking of the necessary measures to achieve such equal opportunities.

Article 17:

First: Every individual shall have the right to personal privacy, so long it does not contradict the rights of others and public morals.

...

Article 40:

Each individual has freedom of thought, conscience and belief.

Article 41:

First: The followers of all religions and sects are free in the:

A. Practice of religious rites, including the Husseini ceremonies (Shiite religious ceremonies)

B. Management of the endowments, its affairs and its religious institutions. The law shall regulate this.

Second: The state guarantees freedom of worship and the protection of the places of worship.

And the document also provides for an independent judiciary as well as many of the other natural and positive rights that liberal democracies guarantee.

What to make of all this? On the one hand, Islam seems say, or at least it is interpret by many orthodox believers as saying that there is no gender equality, no right to worship outside of Islam, no protection for minority rights in a pluralistic society. However, this Constitution explicitly says that both Islam is a source of law and may not be contradicted and that non-Islamists have freedom to worship and of conscience, and generally that there are liberty and equality rights (including gender) antecedent to majority rule.

One way to analyze this is that the Constitution simply invokes a number of different contradictory principles, which judges and legislators will have to later work out.

And there are some who view America's founding in the exact same way. For instance, see this article by Robert Locke.

He believes that the ideals that found America are contradictory and that we should embrace those contradictions as the unique essence of America's Founding.

The problem of contradiction is even worse in the Constitution, which is a curious mixture of Greco-Roman ideas, Christian ideas, Lockean natural-right ideas, plus a few other odds and ends from Montesquieu and other sources. Now a propositionist can claim that America is founded on these multiple propositions, but even all these ideals taken together as ideals, do not found the nation. It is only their synthesis in the Constitution, in which they are combined in a certain way, modified and compromised to fit, and gifted with institutional arrangements to embody them, that founds the nation. The separate strands of idealism, in abstracto, are not a constitution, and found nothing. Therefore even if there is a national proposition, which I deny, it can only be the Constitution as a whole, not any set of ideas abstracted from it. It follows that what the Constitution actually says, with all its compromises and deviations from ideological purity, should be our ideal, which implies a strict-constructionist approach to its judicial interpretation. There is a reason why office-holders swear an oath of loyalty to the Constitution, not to the ideals of the Declaration.

My point here is that the Constitution means what it says, not what some ideals abstracted from it say. The Constitution, with its various compromises and its playing off of various ideals against each other, quite wisely limits the degree to which it embraces these ideals. It establishes some democracy, but not absolute democracy. It invokes Divine providence, but does not establish a church or even specify which variety of Theism it takes as its inspiration. It allows autonomy within a federal system, but not total autonomy. It allows the Federal government to enact laws for the general welfare, but reserves powers not given it to the states or the people. To argue that the essence of the Constitution lies in "the ideals of the Constitution, not its compromises," as Straussian scholar Henry [sic] Jaffa has done, is precisely the opposite of the truth. The compromises are of the essence of the thing, and these compromises deliberately and ruthlessly subvert attempts to abstract "propositions" out of it. The founders were perfectly well aware of the trouble abstract ideology can cause: in the 18th century, it produced the French Revolution; in the 20th, judicial activism.

Robert Locke would further agree that just as the tenets of traditional Islam seem to be in great tension or even contradict liberal democracy, so too could we say the same thing about Christianity and our Founding liberal democratic principles.

Furthermore, the ideas expressed in the Declaration are contradictory. For example, Lockean natural right, the source of unalienable rights, is founded upon John Locke’s social contract theory. But the Declaration says that men are endowed with these rights by God, not by the social contract. [Rowe: Robert Locke is mistaken here. It was Hobbes, who originally formulated the theory of "rights" and the social contract, who said that such rights come from the social contract. John Locke indeed did say that rights come from God. However, Robert Locke correctly notes:] This is a puzzling assertion in light of the fact that God was worshipped for 4,000 years without anyone noticing that He had endowed man with unalienable political rights. The Bible does not mention social contracts (of Locke’s variety) or democracy. When it does discuss governments, like King David’s Israel or the Roman Empire, it not only does not say that they derive their just powers from the consent of the governed, but frequently intimates quite otherwise.

Robert Locke's writings on this matter are Straussian influenced and this is a pretty standard East Coast Straussian observation. For instance, as Walter Berns writes in Making Patriots.

[U]nlike Jefferson, Madison, and others, the majority of ordinary Americans at the time were probably of the same persuasion [as John Witherspoon], taking it for granted that nature's God, who endowed them with unalienable rights, including liberty of conscience, was the providential God of the Bible. However wrong as a matter of doctrine -- where does the Bible speak of unalienable or natural rights, or of the liberty to worship or not to worship as one pleases? -- this made good political sense in America. pp. 42-3.

Now, another way to interpret the Iraqi Constitution is that it does not contradict Islam because, quite frankly, all religious texts say many different things (which may on the surface appear to contradict one another) and are thus open to interpretation. Through interpretation of religious texts (as with constitutional interpretation) we attempt to formulate coherent doctrine. And just as it was possible to reconcile Christianity with liberal democracy by "re-thinking" through certain doctrines, it's also possible to reconcile Islam with liberal democracy as well.

So when the Iraqi Constitution states, "Islam is the official religion of the State and it is a fundamental source of legislation...No law that contradicts the established provisions of Islam may be established," doctrinally, it is not referring to the Islam that uses the organs of the state to punish heretics and Infidels, makes woman wear burkas and the like, but rather a kindler, gentler version of Islam.

This brings to mind one of my better posts where I discuss a post by Rick Garnett on two competing schools of Enlightenment philosophy on religion and government, both of which undergird our Founding. On the one hand is the notion that because the rights of conscience are absolutely unalienable, because government by right cannot intrude itself into matters of religious opinion, government must never "take cognizance" of religion, to assure that it never violates such sacred rights. On the other hand, as Garnett notes:

[I]t seems hard to deny that liberal governments have a strong interest in the content and development of religious traditions and doctrines....In fact, it seems to me that liberal governments have an interest in convincing people — whether they belong to the religion in question or not — that the religion in question really teaches in accord with liberal values....It is better, then, that religions inculcate some values, commitments, and loyalties rather than others. As I wrote in my article, “Governments like ours are not and cannot be ‘neutral’ with respect to religion’s claims and content. [T]he content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of, but also and in many ways seek to assimilate—that is, to transform—religion and religious teaching.”

The Iraqi Constitution seems to embrace this latter philosophy; it does take cognizance of Islam; it doesn't separate Chuch and State; but it does nonetheless assert that individuals have liberty and equality rights, and that non-Islamic religions have freedom to worship as they choose. In order to argue for doctrinal coherence in the Iraqi Constitution, their (and our) government has taken an interest in the "content and development" of the Islamic traditions and doctrines. The government has taken cognizance of Islam and it is, at least in part, up to them -- public officials -- to argue that Islam, properly understood, is indeed a religion of peace that guarantees liberty and equality rights to among others, women, non-Islamic religions, and racial and ethnic minorities.

In other words, this government has taken a strong stake in attempting to put Islam through the Enlightenment that it greatly needs. Let's hope they can do it.

Which Branch of Government Threatens our Freedom the Most?

Joe Sobran has a good article, originally written in 1998, but as relevant today as then, dealing with legislative tyranny. I know Sobran can be a bit of a bigoted crackpot at times (more on that later), but he makes sense here (maybe it's because he is praising the late Henry Hazlitt, a libertarian). From his article:

My Take on the Much Talked About Sex Survey:

Let me finally say something about the much talked about recent sex survey done by the The National Center for Health Statistics. I think it in some way confirms the controversial theories about which I have blogged:

1) that Kinsey was right asserting that sexuality (like race, height, intelligence, and to some extent, handedness) exists on a continuum and 2) that the size of the "gay or bi box" on the one hand and the "normal" box on the other depends on how we measure these categories. Some highlights:

Same-sex activity

Three percent of males 15-44 years of age have had oral or anal sex with another male in the last 12 months (1.8 million). Four percent of females had a sexual experience with another female in the last 12 months (tables A and B).

The proportion who had same-sex contact in their lifetimes was 6 percent for males and (using a different question) 11 percent for females (figure 5).

About 1 percent of men and 3 percent of women 15-44 years of age have had both male and female sexual partners in the last 12 months (table B).

Sexual orientation

In response to a question that asked, "Do you think of yourself as heterosexual, homosexual, bisexual, or something else?" 90 percent of men 18-44 years of age responded that they think of themselves as heterosexual, 2.3 percent of men answered homosexual, 1.8 percent bisexual, 3.9 percent "something else," and 1.8 percent did not answer the question (figure 8). Percents for women were similar. These findings are similar to data collected in 1992 by Laumann et al.

Sexual attraction

Survey participants were asked if they were sexually attracted to males, to females, or to both. Among men 18-44 years of age, 92 percent said they were attracted "only to females," and 3.9 percent, "mostly" to females. Among women, 86 percent said they were attracted only to males, and 10 percent, "mostly" to males. The percentage attracted "mostly to males" was 3 percent in a survey conducted in 1992, compared with 10 percent in the 2002 NSFG.

Okay so what do we have here? It seems that roughly 3-4% of the population evinces and understands itself as having an exclusively or predominantly homosexual orientation. These are the folks who are on the 3-6 end of Kinsey's scale and (importantly) the folks who are *the* gay community, those who are part of the gay or bi "social group," -- those who frequent the gay bars, buy the gay magazines, visit or live in the gayborhoods, and otherwise have a "gay or bi" consciousness. 2.3% define themselves as homosexual. 1.8% define themselves as "bisexual." Together 4% of the populace understands itself as "gay or bi."

But wait, does that mean that the other 96% has an exclusive or "pure" heterosexual orientation? No, in fact, the data show that less than 90% of the population seems to have a "pure" heterosexual orientation. 8% of males and a full 14% of females admit to having at least *some* sort of attraction or full attraction to the same sex. And 11% of females admit to having same sex behavior in their lives. 3.9 percent of males refused to define themselves as hetero, homo or bi, but rather as "something else," and 1.8 percent did not answer the question.

Let me hazard a guess: Those 3.9% and 1.8% respectively are predominantly heterosexual, incidentally homosexual. In other words, that 5.7% of the population are Kinsey 1s and 2s. They live most of their lives as heterosexuals and more or less feel comfortable with their heterosexual identity and in the past would have probably refused to admit to any kind of same-sex activity or feelings (and as I will note later, because of the antihomosexual social stigma that still exists, no doubt many who claim to be exclusively hetero are still misleading). Perhaps now they are being honest enough to not claim exclusive heterosexuality yet also feel that they don't belong in the "gay or bi" box because they aren't part of the gay or bi social group.

1s and 2s, as a group, seem to be somewhat larger than the gay community of 3-6s. They aren't as "visible" as the gay community of 3-6s because 1) 1s and 2s are fully attracted to the opposite sex in ways they cannot be to the same-sex; 2) in the long run they can only flourish heterosexually (in terms of finding a monogamous soul mate); so 3) they, for most of their lives, live normal heterosexual lifestyles; leading to the conclusion that 4) they are closer to heterosexuals than homosexuals. And they are diffusely spread out in the "normal" community.

So if we understand the "gay or bi" box to be the gay social group of 3-6s, it seems that this group comprises about 4% of the population. If, on the other hand, we take a more "pure" approach and define the gay or bi community to include 1-6s, then at minimum 10% of the population is "gay or bi" (even though most of these "bis" live normal hetero lifestyles for most of their lives).

Personally, I believe that we are underestimating the % of 1s and 2s because of the still existent stigma against homosexuality. I have called this effect, "the masturbation effect." Men of virile years who don't have partners with which to have sex for release (and many who do have partners) masturbate universally. Yet, ask about this in such surveys and a significant % will not be up front. The social stigma against homosexuality, especially male homosexuality, is stronger than the social stigma against masturbation. Thus a male who is for the most part heterosexual in his orientation and is comfortable with his "straight" identity, living a "straight" lifestyle, but who nonetheless has had and has the ability to enjoy homosexual sex, is subject to "the masturbation effect" when it comes to answering surveys on homosexuality. My own guesstimate would be that the 1-6 end of the Kinsey scale probably has between 20% and 1/3 of any given population, most of whom are 1s and 2s.

The "Christian Nation" crowd and Natural Rights:

In a post entitled Is Evangelism the Last Refuge of Natural Rights? Richard Reeb writes:

The other reason is that, given the rootlessness of modern liberalism (and its close ideological companion, modern conservatism), which has abandoned its roots in the natural rights political philosophy of America's greatest statesmen (the Founders, Marshall, Webster, Clay, Lincoln), about the only Americans who regularly speak the language of the Declaration of Independence are those on the Religious Right (including traditional Roman Catholics, Protestants, Jews), and especially evangelicals. The right-to-life movement has pointed its supporters back to the most fundamental and God-given right and thus to "the laws of nature and of nature's God." That's the "judicial philosophy" most needed on the Supreme Court, and indeed in all of American politics, government and journalism. Bush believes he has a known quantity in Harriet Miers and that's why he selected her and is sticking with her. This may be the defining event that the early conservative critics were looking for. It might even be a blessing in disguise that's not very well disguised.

This needs a really big caveat, so I'll do it.

The folks on the religious right who get closest to our natural law/natural rights foundation are Catholic thinkers who understand Thomism and its Aristotelian foundations in nature and reason, in universal knowledge -- self-evident Truths -- that man can know as man (and I'd argue, after Strauss, that they fail to appreciate the distinction between modern natural right [Natural Rights] and traditional natural right [Natural Law]). On the other hand, many fundamentalist Protestants, especially those who claim that America is a "Christian Nation" are utterly confused about what it means that rights are granted by "the laws of nature and of nature's God." They think that phrase is shorthand for the triune God of the Bible grants us rights and that the laws of Nature's God refer to inerrant Scripture.

What being founded on "the laws of Nature and Nature's God" really means is that Man's Reason, not Biblical Revelation, is ultimately what is sovereign when it comes to those Truths that will rule us publicly (as opposed to the Truths that rule our private consciences). Even Nature's God, doctrinally, is not the Biblical God (although He could be) but rather in words of Claremont's own Thomas West (ironically, in a speech he gave to such Protestant Fundamentalists), "God insofar as we can discern his existence through our reason unassisted by faith."

Reason may "discover" that God's attributes perfectly parallel what is taught in Scripture and by the orthodox Churches. Or Reason may discover, as it did for Jefferson, Adams, and most other of our key Founders, all sorts of things about God that contradict the tenets of fundamentalist Christianity, like that He is unitarian, not Trinitarian in nature, that He doesn't send men to Hell for eternity, that He doesn't perform miracles that contradict the laws of Science like walking on water and parting the Red Sea. Hell, Reason couldn't even confirm for Jefferson and Adams that God revealed the Ten Commandments to Moses!

And indeed, the fact that God grants us "unalienable rights" is nowhere to be found in Scripture, but rather was a "Truth" that was discovered by one man's Reason, John Locke's, around the time of the Enlightenment. As Dr. David Mazel put it responding to one of my posts on this very matter:

One way to make sense of that claim is to say, Yes, America is a Christian nation, but only to the extent that American Christianity has remade itself in the image of the Enlightenment political philosophy of Hobbes and Locke. But to the extent that it has thus remade itself, it is no longer what once passed for Christianity. To survive and eventually flourish under the new intellectual regime, it had to become the incoherent potpourri so familiar to us today--the religion that on the one hand, and only when convenient, speaks the language of natural rights, and on the other hand speaks the language of the Bible.

This is especially so given that the most unalienable of rights granted by Nature's God permits men to do what the God of the Bible expressly forbids in his First Command and elsewhere: worship false Gods or no God at all.

Natural Rights in Oregon:

Hat tip to Clayton Cramer for mentioning this case involving the Oregon Constitution. In reading Oregon's Constitution, you see that it is explicitly grounded in natural rights (the US Constitution, I would argue, is also a natural rights document, but it's not as explicit in explicating its natural rights grounding).

The first section of Oregon's Bill of Rights states:

Natural rights inherent in people. We declare that all men, when they form a social compact are equal in right: that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper.—

This is Locke 101. And taking a tip from Jefferson's natural rights document, the Virginia Statute on Religious Liberty:

Section 2. Freedom of worship. All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.—

Section 3. Freedom of religious opinion. No law shall in any case whatever control the free exercise, and enjoyment of religeous [sic] opinions, or interfere with the rights of conscience.—

Section 4. No religious qualification for office. No religious test shall be required as a qualification for any office of trust or profit.—

Section 5. No money to be appropriated for religion. No money shall be drawn from the Treasury for the benefit of any religeous [sic], or theological institution, nor shall any money be appropriated for the payment of any religeous [sic] services in either house of the Legislative Assembly.—

Section 6. No religious test for witnesses or jurors. No person shall be rendered incompetent as a witness, or juror in consequence of his opinions on matters of religeon [sic]; nor be questioned in any Court of Justice touching his religeous [sic] belief to affect the weight of his testimony.—

Section 7. Manner of administering oath or affirmation. The mode of administering an oath, or affirmation shall be such as may be most consistent with, and binding upon the conscience of the person to whom such oath or affirmation may be administered.—

The decision of the case also engages in delightful (and ultimately proper in its outcome) natural rights analysis that demonstrates, in the context of free speech, the differences between the more conservative "Blackstonian" notion of English common law rights and the American Lockean natural rights approach (we were founded on the latter, not the former).

Interestingly, the foregoing view of the right of free speech was contrary, in many respects, to the philosophy that had animated the American Revolution. Many of the leading lights of the American revolutionary period were greatly influenced by the "natural rights" philosophy that was advanced in the works of John Locke and that later was popularized, and fused with the republican political tradition, by John Trenchard and Thomas Gordon under the nom de plume "Cato." See generally Levy, The Emergence of a Free Press at 109-14 (describing Cato's Letters and noting that the letters were revered, quoted, and recommended by the likes of John Adams, Thomas Jefferson, Benjamin Franklin, Josiah Quincy, and John Dickinson). On the issue of freedom of speech, Cato wrote:

"Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech; Which is the Right of every Man, as far as by it does not hurt and controul the Right of another; and this is the only Check which it ought to suffer, the only Bounds which it ought to know."

"Of Freedom of Speech", No 15, Feb 4, 1720, in John Trenchard and Thomas Gordon, I Cato's Letters: Essays on Liberty, Civil and Religious 96 (reprint ed. 1971)

To the more libertarian adherents of the natural rights philosophy, freedom of speech was an "inalienable" natural right -- that is, it was not part of the package of natural rights that individuals ceded to the community in order to obtain the protections and benefits of civil society. Rather, it was a right that the individual always retained, as he or she would in a state of nature. Even for natural rights adherents, however, the right was not absolute. According to the natural rights theory, inalienable rights, such as freedom of conscience and speech, were bounded, as they were in the state of nature, by the equally fundamental rights of other individuals. If the state had any authority at all to act in these protected areas, it was to enforce the fundamental rights of other individuals, not to protect society as a whole from undesirable "tendencies" or to promote the majority's idea of the greater good. That is decidedly different from the Blackstonian notion of "abuse", (12) which extended to everything that Parliament had identified as contrary to the public good (a notion that included purely social values like order, morality, and religion).

The Court, applying foundational natural rights principles, ultimately found that the free speech clause of Oregon's constitution, stating, "No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right," protects live sex shows.

In fact, the words are so clear and sweeping that we think that we would not be keeping faith with the framers who wrote them if we were to qualify or water them down, unless the historical record demonstrated clearly that the framers meant something other than what they said. As our recitation of the historical circumstances shows, we have found no such demonstration. Thus, it appears to us to be beyond reasonable dispute that the protection extends to the kinds of expression that a majority of citizens in many communities would dislike -- profanity, blasphemy, pornography -- and even to physical acts, such as nude dancing or other explicit sexual conduct, that have an expressive component. Thus, we have little trouble in concluding that the people who framed and adopted Article I, section 8, as part of the original Oregon Constitution intended to prohibit broadly any laws directed at restraining verbal or nonverbal expression of ideas of any kind.

And Cramer is of course, wrong in his analysis. Cramer asks: "So where is the evidence that the 'natural rights' crowd believed that freedom of expression included live sex shows?"

Notice how Cramer frames the issue at the narrowest, most specific level of abstraction: We have to get into the minds of the Framers and see whether they specially realized that they were legalizing, at the constitutional level, "live sex shows" or other sexually related forms of expression. As I've blogged about before, this is "original expectation" originalism and is not consistently defended by originalists in general or by Cramer in particular. At best, Cramer could argue that original expectation originalism is one legitimate modality of constitutional interpretation competing with other legitimate modalities, like the one supported by the Court's majority. But no, Cramer assumes, with no sound basis whatsoever, that his theory is legitimate, while the majority's is not.

In fact, the majority already effectively answered why Oregon's constitution as ratified and the natural rights principles of our founding are not consistent with a bar on sexually related expression. First, the text of the constitution makes no distinction between sexually related materials and other materials but instead protects "the right to speak, write, or print freely on any subject whatever." Second, as the majority demonstrated the natural rights view on free speech rejects the Blackstonian prior restraints view and believes, in the words of Cato, that Freedom of Speech "is the Right of every Man, as far as by it does not hurt and controul the Right of another; and this is the only Check which it ought to suffer, the only Bounds which it ought to know." In other words, you may only be punished for your speech if in interferes with the tangible rights of other individuals (which would cover things like fraudulent or defamatory words).

Cramer could only reply, as does the dissent, that there is no evidence that "the commentators believed, or would have believed that the protections of free speech, such as Article I, section 8, would extend to conduct such as public masturbation and sexual intercourse." But that's *not* the relevant question; or there is no sound reason that this *is* or *ought* to be the only relevant line of inquiry as opposed to this one: Are laws which outlaw sexual expression consistent with the norm, which those natural rights commentators posited, that we have absolute right to unlimited speech which may be curtailed only when the individual rights of others are put in jeopardy? Common sense and logic tell us that we have a majority inconsistency here, a compromise with a high and lofty ideal. That such laws which barred sexually related speech existed and continued to exist after Oregon's free speech provision was passed only demonstrates that these framers (like our original framers) tolerated practices which were inconsistent with constitutional principles.

Slavery is the most obvious of such inconsistencies. The owning of slaves is clearly inconsistent with the natural rights ideal that all men are created equal. Yet, whether we have a founding that gets us out of slavery or keeps us in slavery depends entirely on which jurisprudential approach we endorse. Indeed Justice Thomas has said that he endorses natural law precisely because it gets us an anti-slavery originalist result. "Original expectation" originalism (Were these founders specifically aware that they were illegalizing practice X when they endorse norm Y? Then look at practice in order to answer the question) on the other hand, preserves the constitutional legitimacy of slavery before the Civil War Amendments.

The point that I would try to stress to thinkers like Clarence Thomas and the Claremont Institute (social conservatives who endorse the natural rights approach) is that such abstract ideology does indeed get us "out" of slavery in 1776 and 1787 respectively, but, as this case demonstrates, it also gets us "in" to other areas and results inconsistent with their socially conservative personal philosophy.

John Adams -- Unitarian Universalist, Seeker of the Truth:

I cannot more strongly recommend reading the entire correspondence between John Adams and Thomas Jefferson. There you will learn what both of these men really thought on religion. And surprisingly, Adams and Jefferson were almost entirely agreed on the basics and only argued over the finer details of religion. (As I've said before, it's likely that Washington, Franklin, Madison and other key Founders believed the same).

These Founders were fascinated by the theories of their friend, English Unitarian Joseph Priestly (also the discoverer of oxygen). Priestly argued that Christianity had been corrupted (He wrote a book entitled History of the Corruptions of Christianity). And the "corruptions" to which he referred were the central tenets of both Catholic Dogma and orthodox Trinitarian Protestant Christianity (most notably the Trinity and the Athanasian Creed).

Adams was more of a critic of Priestly than was Jefferson; but not because Adams disagreed with Priestly's rejection of orthodox Christianity (Adams clearly rejected those doctrines as well). Rather, Adams nitpicks on a lot if the finer details of Priestly's beliefs (which could be quite strange). Adams agreed with Priestly that Christianity had been corrupted. Not just the dogmas and doctrines, but also the Bible itself. This is important to note: it's very easy to quote Adams out of context in order to try to claim him as an orthodox Christian. Adams did say things in his writings that are easily misconstrued. For instance, in his letter to Jefferson dated December 25, 1813, "I have examined all, as well as my narrow Sphere, my streightened means and my busy Life would allow me; and the result is, that the Bible is the best book in the World." Now there, he does sound like an orthodox Christian. But one must read the entire letter in context. And then we see it reveals something entirely different.

He is discussing Priestly's work and prefaces his statement to Jefferson by noting that Man's Reason is the Ultimate discerner of the Truth and that it takes precedence over Revelation; indeed it makes Revelation entirely unnecessary:

Priestly ought to have done impartial justice to Phylosophy and Phylosophers, Phylosophy which is the result of Reason, is the first, the original Revelation of The Creator to his Creature, Man. When this Revelation is clear and certain, by Intuition or necessary Induction, no subsequent Revelation supported by Prophecies or Miracles can supercede it.

Adams further believed that the Truth is to be found in all religions (hence, he was a universalist). And that all religions, like Christianity, were universally corrupted by dogma. As badly corrupted as Christianity was, it had still been less corrupted than all of the other religions. Adams resolutely used the word "Christian" and "Christianity" in a positive sense. However, Adams, like Jefferson and Priestly, wants to claim the word "Christian" away from the orthodox clerics and use it to describe his very unorthodox, Enlightenment-influenced, rationalist, Unitarian-universalist personal set of beliefs.

When Adams "finds" the Truth in other religions that parallel teachings found in Christianity, he goes so far as to call these Eastern Pagan religions "Christian." To Adams, one was a true Christian if one was Christlike, even if one had nothing to do with the Christian tradition. Were he alive, I'm convinced that Adams would have called Ghandi, "Christian." (And keep in mind Calvin and the Popes were not "true Christians"). Here (in the same letter) is Adams describing Hinduism and noting how it contains the same basic teachings as Christianity:

Where is to be found Theology more orthodox or Phylosophy more profound than in the Introduction to the Shast[r]a [a Hindu Treatise]? “God is one, creator of all, Universal Sphere, without beginning, without End. God Governs all the Creation by a General Providence, resulting from his eternal designs. --- Search not the Essence and the nature of the Eternal, who is one; Your research will be vain and presumptuous. It is enough that, day by day, and night by night, You adore his Power, his Wisdom and his Goodness, in his Works."

Here is Adams, in his letter to Jefferson dated Oct. 4, 1813, finding "Christianity" in Pagan Greek philosophy:

θέμίς was the Goddess of honesty, Justice, Decency, and right; the Wife of Jove, another name for Juno. She presided over all oracles, deliberations and Counsells. She commanded all Mortals to pray to Jupiter, for all lawful Benefits and Blessings.

Now, is not this, (so far forth) the Essence of Christian devotion? Is not this Christian Piety? Is it not an Acknonowledgement [sic] of the existence of a Supream Being? of his universal Providence? of a righteous Administration of the Government of the Universe? And what can Jews, Christians, or Mahometans do more?

[...]

Moses says, Genesis. I. 27. ["]God created man in his own image." What then is the difference between Cleanthes and Moses? Are not the Being and Attributes of the Supream Being: The Resemblance, the Image the Shadow of God in the Intelligence, and the moral qualities of Man, and the Lawfulness and duty of Prayer, as clear[l]y asserted by Cleanthes as by Moses? And did not the Chaldeans, the Egyptians the Persians the Indians, the Chinese, believe all this, as well as the Jews and Greeks?...I believe Cleanthes to be as good a Christian as Priestley.

As I said above, although Adams revered the Bible, he clearly thought that it had been corrupted and was thus errant. It's just the Bible, as a book of Revelation, contained more of his "little Phylosophy" than any other book from other Worldly religions, all of which at once (like the Bible) contained the "Truth" but were also "corrupted" by dogma.

So, according to Adams, what the philosophically minded man should do, using his Reason as the ultimate guide, was look to all of the World's religions and philosophies and separate the wheat from the chaff or, as Jefferson put it (while describing the way he reads the Bible), try to find the "diamonds" of Truth in the "dunghill" of religious dogma.

And in fact, just as Jefferson cut out entire passages of the Bible which could not be confirmed by Reason and were thus "corrupt," Adams (approving of Jefferson's work) had his own idea to do the same. Adams stated in his letter dated Nov. 14, 1813, "I admire your Employment, in selecting the Philosophy and Divinity of Jesus and seperating it from all intermixtures. If I had Eyes and Nerves, I would go through both Testaments and mark all that I understand."

Adams in that letter doubts that the Ten Commandments were the right version. He asks Jefferson:

Among all your researches in Hebrew History and Controversy have you ever met a book, the design of which is to prove that the ten Commandments, as We have them in our Catechisms and hung up in our Churches, were not the Ten Commandments written by the Finger of God upon tables, delivered to Moses on mount Sinai and broken by him in a passion with Aaron for his golden calf, nor those afterwards engraved by him on Tables of Stone; but a very different Sett of Commandments?

There is such a book by J.W. Goethens Schristen. Berlin 1775-1779. I wish to see this Book.

Adams then goes on to recite from Exodus what he thinks may be the true Ten Commandments. He then notes:

When and where originated our Ten Commandments? The Tables and The Ark were lost. Authentic copies, in few, if any hands; the ten Precepts could not be observed, and were little remembered.

If the Book of Deuteronomy was compiled, during of after the Babilonian Captivity, from Traditions, the Error or Amendment might come in there.

Adams was convinced that the Bible, like all religious books, contained "errors and amendments" which had corrupted it. And that there was a conspiracy of those in clerical and political power throughout the ages to keep the ultimate entire "Truth" secret. As commonly presented, the different religions of the world contained "Problems, Conjectures, and paradoxes"; but if these destroyed secret teachings were uncovered (and in the future he had hopes that such Truth would be uncovered), questions would be answered and "corruptions" exposed.

From the same letter:

The Daemon of Hierarchical despotism has been at Work, both with the Mishna and Gemara. In 1238 a French Jew, made a discovery to the Pope (Gregory 9th) of the heresies of the Talmud. The Pope sent 35 Articles of Error, to the Archbishops of France, requiring them to seize the books of the Jews, and burn all that contained any Errors. He wrote in the same terms to the Kings of France, England Arragon, Castile Leon, Navarre and Portugal. In consequence of this Order 20 Carloads of Hebrew Books were burnt in France: and how many times 20 Cartloads were destroyed in the other Kingdoms? The Talmud of Babylon and that of Jerusalem were composed from 120 to 500 Years after the destruction of Jerusalem. If Lightfoot derived Light from what escaped from Gregorys fury in explaining many passages in the New Testament by comparing the Expressions of the Mishna, with those of the Apostles and Evangelists, how may proofs of the Corruptions of Christianity might We find in the Passages burnt?

Finally, Adams thought that the library at Alexandria held the answers to many of these questions and was destroyed precisely to keep the knowledge secret. From his October 4, 1813 letter:

On the other hand how do We know how much Moses Samuel Joshua David Solomon and Esdrass, Daniel Ezekiel, Isiah and Jeremiah learned in Babilon Egypt and Persia? The destruction of the Library at Alexandria, is all the Answer We can obtain to these Questions. I believe that Jews Grecians Romans and Christians all conspired, or connived At that Savage Catastrophy.

Religious and philosophical questions fascinated John Adams. And he was a man on a relentless search for the Truth. We can admire and learn from his desire to know. Thank you Mr. Adams.

Justice Smails:

It's too bad that Ted Knight didn't live long enough to play the part he was born to play...we'll, he sort of played it once (brilliantly) in Caddyshack. In this post by Jim Lindgren entitled Earl Warren Burger Is Miers' Favorite Justice?, Lindgren recalls some personal meetings with Burger. He notes "Burger had an impressive white mane, but struck me as sort of a Ted Baxter character (from the Mary Tyler Moore show)"; but then when he described Burger's personality, it was far more Judge Smails (Caddyshack) than Ted Baxter. Smails had all of Baxter's arrogant creepiness, but to the tenth power. When I read Lindren's account of Burger, I could hear Ted Knight's voice in my head saying all these things and starting cracking up:

He looked like a Supreme Court Justice sent from central casting, but when he opened his mouth, he came off (to me) as crude and vain....

Yet on that day in the mid-1980s, Burger spoke at length about an African American woman on the Court staff who had filed a claim of race discrimination against him (or perhaps it was against the Court administration). Burger did not try to conceal his glee that she lost. Why he would even bring it up for discussion was beyond me (it was very odd), and he repeatedly and pointedly called her a "Negro" when that term had become much less commonly used in educated society (though it was sometimes still used in Court opinions).

Second, Burger went on for over a half hour about how embarrassing it was when Justices went to parties in Washington (especially embassy parties) and they did not have chauffeurs, how he was trying to get drivers for Justices, and how much he enjoyed the royal treatment he received when he visited other countries. With great pride, he detailed the lavish welcome that he had received when he visited Canada.

Third, when an Australian judge or professor (also visiting at Virginia) mentioned to Burger that one of the leading judges in Australia would be coming to Washington and asked Burger whether he was scheduled to meet the Australian jurist, Burger replied that he couldn't meet every judge who came to Washington from minor countries. I wasn't the only one who was stunned by this statement.

I could just imagine at one of those cocktail parties a young man lamenting in a private chit chat, how he dreamed of going to law school, but that it was likely not in the cards -- and Burger snapping back, "well, the world needs ditch-diggers too you know."

Stupid Celebrities:

If you were a celebrity in this day and age, why would you ever make a private sex tape?

Know the law: One thing I teach in my Business Law classes, celebrities, by law, have greatly diminished legal privacy rights (not referring to Constitutional privacy rights that one has against government, the Griswold line of cases, but rather common law tort privacy rights that allow one private party to sue another for various "invasion of privacy" causes of action). If this happened to ordinary folks we could successfully sue the pants off the purveyors and perhaps get an injunction.

I think though, a celebrities' best argument would be copyright law. BRITNEY et al., perhaps could argue that they own the copyright to these tapes and thus could control their dissemination.

My Take on Miers:

You know, I never, for the life of me, thought that I had a chance of becoming a Supreme Court Justice (or even any seat on the federal bench). But now, my hopes are up. If you notice a change in my writing style -- that I start kissing Bush's butt more (btw: did I ever tell you that I think he's the most intelligent man in the world?) -- it may be because I'm throwing my hat into the ring of contention for the next open seat. Mr. President, you have my email address.