Saturday, April 30, 2005


Lawrence Lessig gave a brilliant presentation at Philadelphia University on Thursday. And it was nice meeting him too (although I didn't get to that dinner).

Although the event was moderately attended, those who did make it were captivated by his presentation, so much so that he spend almost an hour answer questions and the Q&A session had to be cut off with more questions waiting.

For those that don't know his argument, it's this: Whereas in the past Copyright law served to foster creativity, in the modern digital age, the legal structure greatly impedes creativity, or at least the law presents a huge danger of impeding creativity and thus we need legal reform. He made it clear that he doesn't support Piracy and he is not on the side of those who want to get *something* for nothing, just that we need common sense reform of Copyright Law in the digital age that keeps in mind that it's artistic creativity that is the ultimate policy that the law should seek to promote.

If I were to disagree with one aspect of his argument, it's this: Just because Copyright Law as it exists in the digital age doesn't always promote the free exchange of ideas, artistic creativity, (and what Lessig calls "remix"), doesn't necessarily mean that the law will effectively quash or event put a dent in any of these things. There could just be a huge, but unfortunate disconnect between the law on the one hand and practices on the other. In many cases people will still do what they are going to do, create what they will create, regardless. [Lessig recognizes this disconnect. I think where he and I differ is that he sees the current law as truly affecting artistic output, indeed, with the potential to crush it; I'm not so sure.]

See Creative Commons.

Friday, April 29, 2005

A better apology:

Okay, I formally apologize for stating that Herb Titus wants to execute gays and adulterers. I was mistaken as to his status as a "Christian Reconstructionist" and his position on the proper civil punishment for sodomy and adultery.

In terms of his status as a "Christian Reconstructionist" Titus writes to me in an email:

"Had you read what I have written or listened to some of my lectures on audio tape or even what the one man who actually talked to me -- instead of forming your opinions solely on what others have said about my relationship with Dr. Rushdoony and Howard Phillips -- you would have discovered that I am not a "Christian Reconstructionist." See Bruce Barron's 1992 book, Heaven on Earth? at 23-66. But I suspect that you -- like many others -- are so quick to pass judgment on Bible believing Christians that you have committed the error of guilt by association."

In terms of Titus's views on the Bible and Capital punishment Titus wrote:

"I made my position clear - that no civil government -- other than the ancient state of Israel -- had been given any authority by God to impose the death penalty upon any person who had been duly convicted of sodomy, adultery, and other like "holiness" offenses. Additionally, I explained why Old Testament Israel was given such authority by God and why that authority no longer exists in any nation with the coming of Jesus Christ. I explained further how the death penalty authority for the crimes of adultery and sodomy was different from the death penalty authority with respect to conviction for murder which is rooted in the Noahic covenant binding on all nations even today. See Genesis 9:6."

See also the comments made to my last post by Ed Brayton and Jim Babka. As we have noted, Brayton and I think very alike. And before being corrected by Babka, Brayton was under the same misimpression that I was and the initial source of the error was also the same: Titus's termination by Pat Robertson as Dean of Regent's Law School.

Brayton writes:

"You [Babka] and I had a similar conversation about Titus, as did Perry Willis and I a few months ago, because I was under the same impression that Jon was. I had read quite some time ago that his departure from Regent University was because Robertson was trying to distance himself from the reconstructionists, in more than one source. I was quite surprised to find out that you and Perry were friends with him, but both of you told me that his views had been misrepresented and that he was much more libertarian than I might imagine. But prior to that, I would have written something very much like what Jon wrote and had every reason to believe it was justified and true."

And Titus informs me that Robertson and his allies at Regent are not credible sources and the spread of such misinformation by them resulted in lawsuits and confidential settlements.

Thursday, April 28, 2005

Retraction: Herb Titus does NOT want to execute gays & adulterers:

Herb Titus, attorney for Roy Moore, Howard Phillip's former Vice Presidental candidate under the US Taxpayer's party, and former Dean of Pat Robertson's Regent University School of Law, does not want to execute gays & adulterers.

In this post, I wrote:

However, I do see a marked difference between, on the one hand, the hardcore lunatics (who truly do want to "control[] the bodies and behaviors of all Americans to [absolutely] conform to Biblical absolutes") at the extreme end of the spectrum like Howard Phillips and Herb Titus (who would execute gays & adulterers), as well as the softer lunacy of Gary Bauer & James Dobson (who would probably just lock gays up for practicing), and on the other, conservatives Christians like Bush, many of whom are more humble and kind in their positions, or at least, some of their positions.

Titus wrote me in a personal email (and I didn't send him my post, he found it on his own), that I misrepresented his position and that his real position is laid out in his book, "The Bible: Law Book for the Nations" in First Steps to Statesmanship at 50-55 (2001) and this book is available from the American Heritage Party, P.O. Box 241, Leavenworth, Washington 98826.

Now, let me explain why I wrote what I did. From what I have read I was under the impression that Titus was, like Gary North, RJ Rushdoony, and Howard Phillips (with whom Titus ran as a VP Candidate), a "Christian Reconstructionist" and that sect of fundamentalist Christianity believes in the Biblical literal punishments as set out by the Old Testament, which includes stoning to death, among others, homosexuals, adulterers, recalcitrant children, and those who would encourage the community to worship false Gods. I did not intentionally spread a lie about Titus. I had a good faith belief that this was his position. If I am wrong, I stand corrected and apologize.
Sullivan, Zuckert, Hobbes & Locke:

Andrew Sullivan has an outstanding article in the New Republic about the GOP and Fundamentalism.

Dan Drezner takes issue with Sullivan's historical analysis of Hobbes & Locke (quoting Sullivan):

Doubt, in other words, means restraint. And restraint of government is the indispensable foundation of human freedom. The modern liberal European state was founded on such doubt. In the seventeenth century, men like Thomas Hobbes and John Locke looked at the consequences of various faiths battling for control of the moralizing state--and they balked. They saw civil war, religious extremism, torture, burnings at the stake, police states, and the Inquisition. They saw polities like Great Britain's ravaged by sectarian squabbles over what the truth is, how it is discovered, and how to impose it on a society as a whole. And they made a fundamental break with ancient and medieval political thought by insisting that government retreat from such areas--that it leave the definition of the good life to private citizens, to churches uncontaminated by government, or to universities that would seek and discuss competing views of the truth.

Drezner writes, "Well...... I know Sullivan has the Ph.D. in political theory, but I would take issue with his interpretation of Hobbes."

Sullivan's analysis of Hobbes & Locke is exactly as he learned it while getting his Ph.D. under Harvey Mansfield (it's a Straussian interpretation). Here is Allan Bloom from "The Closing of the American Mind":

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

When Bloom refers to "knowledge" he means those "self-evident" Truths upon which we were founded. And one such Truth was that we had unalienable rights of conscience. Because folks differed as to the content of their religious beliefs, respecting the rights of conscience in turn required consigning religion to the realm of "opinion" which government could not touch.

On another note of interest, Drezner also writes:

[Why not discuss Hobbes' big-government social politics, or the importance of faith in Locke's derivation of property rights?--ed. Because I'm trying to keep this post under 5,000 words.]

Regarding the role of "faith in Locke's derivation of property rights" Michael Zuckert, another Straussian, and a very prominent Lockean scholar, would argue that faith played a very little role.

Let me briefly state how I understand Zuckert on Locke. Of course, Locke tied rights to God (as those who would point to the importance of "religious faith" in Locke's theories would note) but Locke first and foremost argued that "reason" and not "faith" had to justify all Truth, or at least all "public Truth." Indeed, the notion that rights come from God was not something one takes on faith, but must be vetted by reason. And Locke argued that in order for Christian teachings to be acceptable, they had to be justified by reason. But he also argued the Christian religion (or at least, his understanding of it), by in large, could in fact be justified this way, hence his book, "The Reasonableness of Christianity."

Zuckert would argue that those who would take from context all of Locke's references to Christianity and the Bible in his political arguments miss a big point: Locke didn't believe that Revelation was the ultimate guide to Truth; Locke was a Humanist who elevated Reason over Revelation and held Revelation to be true only insofar as it was Reasonable.

Wednesday, April 27, 2005

Sullivan on the Religious Right & the GOP:

I might surprise some folks by noting that I think Sullivan goes a bit to far in his rhetoric:

My position was that the national security differences between Bush and Kerry were not so great as to risk the domestic Kulturkampf that the religious right would unleash if Bush were to win. Others believed I was "hysterical" and concentrating too much on the gay issue. I think events since the election have buttressed my case. Gays could see this more clearly because we were so often the convenient target for the far right in the first term (although they have even more ambitious plans to curtail gay freedom in the second). But the religious right's agenda is far more ambitious than merely stripping gays of civil rights or even minimal privacy. It's about controlling the bodies and behaviors of all Americans to more faithfully conform to Biblical absolutes. Hence Schiavo; hence the need to purge the judiciary of any opposition; hence the abolition of a threatened judicial filibuster; hence the political alliance with the new papacy; hence "Justice Sunday." These people are no longer merely one Republican faction. They control the GOP. We are now seeing that more clearly, while the war - understandably - obscured that a little. With Iraq less in the headlines, the domestic agenda of the new big government sectarian GOP is far clearer. My "hysteria" may eventually be seen as clarity - even to anti-anti-religious right contortionists like Mickey Kaus.

I'm socially libertarian and a see myself as a secularist as well. So I obviously don't like the religious right's unquestionable influence on that party (and I don't like the "big government" spending of the GOP as well; that's why I vote Libertarian). However, I do see a marked difference between, on the one hand, the hardcore lunatics (who truly do want to "control[] the bodies and behaviors of all Americans to [absolutely] conform to Biblical absolutes") at the extreme end of the spectrum like Howard Phillips and Herb Titus (who would execute gays & adulterers), as well as the softer lunacy of Gary Bauer & James Dobson (who would probably just lock gays up for practicing), and on the other, conservatives Christians like Bush, many of whom are more humble and kind in their positions, or at least, some of their positions.

For instance, the religious right has disapproved much of Bush's "softer" policy on gays. And this is perfectly illustrated by those secret tapes where one such lunatic reverend demanded that Bush never hire gays for government positions and thought Bush agreed to this, whereas Bush said (paraphrasing), "no, I said I won't fire gays."

Still, I agree that the religious right holds much influence over the GOP and that influence is malign.

Monday, April 25, 2005

Sandefur on Barnett:

This is really cool.

Update: See Ed Brayton's comments on the matter.
Linked but didn't know it:

Apparently, a reader tells me that I was featured on's BlogHeaven, but I'm no longer there. I didn't know. I check technorati regularly to see who links me, but I guess that one didn't pick up.

Thanks for the link when you had me!

Update: I'm back in. By making a new post, it automatically put me back in. So I must be in their "cycle." Thanks.

Update II: I'm out! Apparently they wanted that "other" Jonathan Rowe. LOL. This isn't the first time someone confused me for him.

Sunday, April 24, 2005

Brayton in the Washington Times:

Congrats to Ed Brayton for being mentioned in the Washington Times.
Stressful Week:

I won't be doing much blogging this week. I have a very important job-interview on Wednesday.

And then Thursday, not as important as Wednesday, but definitely something interesting. Lawrence Lessig, Stanford Law Professor, one of the leading experts in the Law & Technology field, and blogger, is going to speak at Philadelphia University, one of the colleges where I teach. My boss, the Director of the Instructional Design & Technology program in the School of Design and Media, was tapped to put on the event.

After the event, as is customary, we plan on going out to dinner with Lessig. And I will be one of about 10 people, including my boss and his boss (the head of the School of Design and Media) and Lessig, at the dinner.

Here is the kicker: the one course I teach for Phila U is called "Legal Issues Impacting the Educator," and is taught mainly to public school teachers seeking IT certification or a Masters Degree. It deals mainly with Law and Technology with a primary focus on Copyright issues. This is exactly Lessig's field. And I'm the only lawyer-professor in the program. Chances are, the only two lawyers/law professors at that dinner will be me and Lessig (a gnat and a giant). Gulp!

Saturday, April 23, 2005


An interesting discussion broke out on this comment thread on the Evangelical Outpost (as usual). In particular, Patrick makes an observation about homosexuality and complementarily that really "gets it"; his is a far deeper understanding of nature and the human condition than those who would just point to biological differences between men & women, note that gays can't procreate, and then conclude that homosexuality violates the norm of heterosexual "complementarily" or nature in any meaningful way. As Andrew Sullivan has pointed out, not only does homosexuality not violate the dominant norm of heterosexuality, it in fact, "resonates with it."

Joe Carter: "While we shouldn't attempt to reduce it to it's component parts, we also cannot ignore the physical dimensions of sex, especially sexual differentiation. Men and woman are different in both their physical and emotional makeup. Evangelicals believe that these gender differences are complementary and designed by God to lead to fulfillment and happiness within the union."

As a gay man, I agree with the above. Where we differ is that I don't think many Christians understand and accept the true nature of male and female Complementarity. Men and Women are different, but they are also the same. The concept of the one-flesh union as described is not the whole story, not even for heterosexuals.

It is indeed about the union of the man and the woman. But humans are more complex, and frankly more beautiful than this and it should be taken into consideration.

What I'm getting at is that it's not just the union of the man in the woman, it is also the union of the woman in the man. Or as Peter Gabriel says, it's in the Blood of Eden.

Every human being on the planet, no matter what gender, has inherently both male and female components within them to varying degrees. This is true physically, psychologically, emotionally, and many believe spiritually.

It's an essential part of the make-up of our humanity that should not be dismissed or overlooked when discussing what a marriage is and isn't.

When the "one-flesh" union or marriage takes place, it's actually a double-joining. It's more than just the single joining of a man to a woman. What also takes place is that the part which is female within the man joins with that which is male within the woman.

This double-joining is the bridge between the sexes. It's the phoneline through which men and women are able to communicate with each other and understand each other. Without it the joining between sexes would be in battle, not marriage. And sometimes it still is.

This is the essence of true Complementarity. That's how it works. Christianity seems at some point to have turned it's back on this fundamental truth. I suspect it's more because of the cultural prejudices toward women that were in the societies that Christianity sprang from than it does with Christianity itself. Women were not respected. So the part in men that is female also came to be despised. And the reverse for women.

But Complementarity is still a biological fact. And because of the variety and complexity of the human species it expresses itself in many different ways. The chromosome "Super-male" or female. Mammary glands in men, and penile tissue in women. The physically female blank slate of the fetus. The rush of hormones in different quantities and and at different times that run the development of gender in that fetus. Biologically, Adam comes from Eve's rib. There are also the other variances, including hermaphrodites who in truth are really a third gender, androgyny, and of course transgendered individuals and yes, gay and lesbian people.

Christian marriage assumes a standard of absolute male and female that does not exist in the reality of our species. And a thousand "defense of marriage" laws are not going to change that fact.

So a gay or lesbian union is in fact not the same as that of a heterosexual union. But it is still the union of the man in the woman and the woman in the man. It's in a different, but completely natural, configuration and proportion than that of opposite-sex couples. It's merely a different expression of Complementarity. And it also deserves respect, because it is the design of the Creator, and it's a beautiful thing.

The sheer elegance and genius of the way in which God created the male and female principles men and women to work with each other, in all it's permutations should be acknowledged, celebrated, and respected but above all else, understood.

Patrick correctly notes that the standard of "absolute" gender roles that Christian conservatives seem to posit is an erroneous view of nature, in my opinion, as erroneous as the view of the "social constructionists" who argue that "gender" is a social construct. Also short-sighted is the notion that the "differences" between men and women equal a perfect fit between the two of them. Patrick notes that absolute gender differences would seem to make marriage as much of a "battle," as a union. And that some marriages in fact look like this. Indeed, it was an Evangelical Christian (yes ironic) who noted that "Woman are from Venus, Men are from Mars," seeming to indicate that differences between the genders are as likely to make men and women appear to be a "clumsy matchup" as a "perfect fit."

Thursday, April 21, 2005

F*ckin' Ponderous Man:

If you've never heard this rant by Casey Kasem, then you are in for a treat. One of the funniest things you'll ever hear in your life.

Wednesday, April 20, 2005


Here's an email a friend sent me after reading my past posts on the Iraq War. He sent me this article to read. And I responded that I pretty much agreed with this post by Andrew Sullivan but that our history would be the ultimate judge of our presence in Iraq.

Many initial supporters of the invasion of Iraq got cold feet when the going got tough. I didn't! It took us 7 years to democratize Japan and Germany and I would expect that it will take that long or even much longer to do the same to Iraq. Some thing cannot be hurried. Whenever President Bush is asked how long we will stay there, he replies correctly "As long as it takes." One can never give out enemies a timetable that they can use against us.

My unswerving support of the present administrations foreign policy is based primarily on their willingness to use force and endure casualties and secondly on my perception of their level of resolve to stick to their program though thick and thin until victory is achieved.

One of Douglas MacArthur's most famous quotes is "There is no substitute for victory".

If you have not yet read his biography, AMERICA'S CAESAR, BY William Manchester, I suggest you do so. It would be a highly useful investment of your time.

For many years I attended informal briefings on international affairs with an retired army intelligence officer who defined history as "A group of lies agreed upon."

I don't think he was far from correct.

Tuesday, April 19, 2005

Sin City:

I saw Sin City over the weekend and I endorse the movie. I give it a B+; I also give the comic a B+. Comic-book legend Frank Miller is the Creator behind Sin City. And the reason why I give both the comic and the movie a B+ is because the movie perfectly adapts the comic. (Although Sin City is a good comic; it's not Miller at his best. For that, you'd have to see The Dark Knight Returns, Batman Year One, Daredevil, or Martha Washington Goes to War). For those who aren't familiar with the comic, how they adapted the comic is what's truly special about this movie. And when I say special, I mean, this has never been done before. And it's about freakin' time that they did this.

They literally shot the movie right from the comic book. No scripts, no adaptation, no changing nothin'. Line by line, and panel by panel (a "panel" is each separately drawn picture on a comic page; a typical page might have between 5-6, some with more, some with less, some pages are one entire panel called a "splash page") what's in the comic is what's in the movie. And there were no actual sets. All the background was created by computers.

Too many great comic ideas have been ruined in the process of "adapting" the comics to film. Now that we have the computer technology, the way to make a blockbuster comic movie is take the best of what's out there in the comic book world and shoot right from the friggin' comic and don't change a damn thing. Now that the trend has been set, let's hope that it is followed.

If Watchmen is to be made into a movie, let's pray that they make it (or the "series"; they'd have to do at least three) this way.

Update: See David Swindle's review of Sin City here.
Gays & Child Sexual Abuse:

Julian Sanchez has a good post debunking the canard that "gays" are disproportionately responsible for child sexual abuse, that is unfortunately posited by the religious right. (And that such groups would spread such a blood-libel makes it hard for me to believe that they really do not hate homosexuals. I realize that having a sincere religious conviction against homosexual behavior does not a hater make. And many of these folks genuinely do not hate homosexuals. But the problem is, many of them do.)

Most surveys of instances of child molestation have found that male molesters of male children are typically not "homosexual" in any conventional sense (i.e. pursuing relationships with adult males). And that's important because the proportion of instances of child molestation that involve male-male contact is much higher than the proportion of gay men in the population. Those two facts are used by conservatives to claim that gay men are more likely than other men to molest children; the reason they're wrong about that is precisely because, in fact, the overwhelming majority of male molesters of male children are not "gay" in the colloquial sense.

The survey result is probably the result of men whose primary sexual attraction is to young boys (though they may be heterosexual or, more likely, totally asexual, in their relationships with adults) concluding that they must, therefore, be "gay" (since it is, after all, *boys* they're attracted to--the conservative argument). But psychologists and social scientists tend to regard pedophilia as, in a sense, a separate orientation of its own. If someone's primary sexual activity is screwing goats, you don't ask whether the goats are male or female to determine whether the person is "straight" or "gay".

This is true. For someone who is a true pedophile, it's the age of the victim which is the focus of their separate orientation. Sometimes pedophiles have a preference for little boys or little girls. Often they indiscriminately want children, regardless of gender. For instance, "reformed" pedophile Jake Goldenflame, was a married self-identified hetero man, apparently with no attraction to adult men, and *some* attraction to adult women, and was a typical true pedophile. He molested his own daughter and boys too.

Calling him gay or "bisexual" and lumping him in with the gay or bi community, because he molested little boys, is downright disingenuous.

So any study that purports to demonstrate that "gays" have a higher incidence of molestations by categorizing true pedophiles -- no attraction to adult men who molest little boys -- as "gay" is garbage. And that's what the religious right does when they claim, "gays are 3% of the population but make up 1/3 of all molestations...."

A few other important notes. Many of these studies also conflate pedophilia and ephebophilia, which likely have two completely different origins. Ephebophilia is sex with an underaged but post-pubescent teen. (And note, that in most cases I think it's wrong for precisely the same reason pedophilia is wrong: both activities harm the underaged actor involved.) There appears to be no separate "ephebophile" orientation, but rather this stems from a general heterosexual or homosexual orientation (although some with an ordinary heterosexual or homosexual orientation may have preference for underaged, but biologically adult, actors -- just as some have a preference for blonds v. brunette or short v. tall women, or a race preference, etc.).

And because ephebophilia is more "natural," it's also far more common than true pedophilia. True pedophiles, like Jake Goldenflame, are extremely rare from a statistical point of view. Whereas gays are somewhere between 2-5% of the population, pedophiles are probably a fraction of a one percent. But when we mix ephebophilia with pedophilia, then "pedophilia" seems much more common.

So a man lusting after a 15-year-old male or female, one who is clearly well into puberty (not all 15-year-olds are) most likely has a general homosexual or heterosexual orientation. And I'd be open to evidence that gays or straights are more likely to be involved in this behavior than the other.

However, given that up until very recently, heterosexual ephebophilia has been normalized throughout the history of Western Civilization (as long as it took place within the context of a marriage), given that for instance, without much of a fuss, Jerry Lee Lewis and Loretta Lynn (and countless non-celebrities) were both involved in ephebophile marriages where one party was an adult male, the other a 13-year-old girl, in the South in the 50s (the hey-dey of social conservatism), you aren't going to convince me that gays are more likely to be ephebophiles than straights.

Monday, April 18, 2005

Hart on Fundamentalists:

Andrew Sullivan links to a piece by Jeffrey Hart, who is regarded as one of the most distinguished conservatives in academia, on fundamentalists' malign influence on the Bush Administration.

(For an example of Hart's influence on intellectual conservatives, see this National Review book review of Dinesh D'Souza's "Letters to a Young Conservative.")

Read the whole article. Here is my favorite part:

Other Bush-inspired policies with severe implications for public health began to form a list as long as your arm. In fact, despite their potentiality for real harm, they possess a comical sort of zaniness. As reported in The Washington Post, they include:

Information about safe sex was removed from the Centers for Disease Control Web site.

The scandal that the FDA's Center for Drug Evaluation and Research prohibited over-the-counter sale of a "morning after" contraceptive as encouraging promiscuity and thus spreading disease -- clearly outside the mandate of the FDA. The New England Journal of Medicine described this as a political decision, which of course it was.

The fact that the Bush administration has devoted millions to faith-based organizations promoting abstinence, but in doing so telling flagrant lies: that condoms fail to prevent HIV 31 percent of the time during heterosexual intercourse (3 percent is accurate); that abortion leads to sterility (elective abortion does not); that touching a person's genitals can cause pregnancy; that HIV can be spread through sweat and tears; that a 43-day-old fetus is a "thinking person"; and that half of gay teenagers have AIDS. Some grants for faith-based programs stipulate that condoms be discussed only in connection with their failure.

You would think that such Halloween science would be impossible in federally funded programs. Isn't bearing false witness prohibited by the Ten Commandments? But, as we see, Evangelicals make up their own scripture. And this is the Bush administration.

Then there was that book the federal bookstore at the Grand Canyon was obliged to carry, maintaining that the Grand Canyon was caused by Noah's Flood. Geology shows that the canyon took millions of years to form by erosion. No problem. Geology is wrong.

The saints, they are marchin' in. H.L. Mencken, where are you when we need you? But some of that represents the comic side of the Bush administration. No one should be laughing about its stem-cell policy. Welcome to Evangelical Land. Today, it's us.

Look, I know the left has its own share of loonies (and great intellectuals like Thomas Sowell have spent much time debunking the "Halloween science" of the left). And alas those looney-leftists like Ward Churchill are more likely to get an academic job than looney rightists.

But the looney right does exist and they posit not only Halloween science but also Halloween history, which I've spend much time on this blog this past year debunking. And unfortunately they have the ear of the Bush administration.

Sunday, April 17, 2005

Now the attack from the Left:

I've highlighted on this blog the attack on the independence of the judiciary from the (loony) right. Now the left is having its turn (it's Jeff Rosen, so I won't categorize him as "loony"; but this piece is loony).

Just looking at the pictures -- especially Richard A. Epstein's unrecognizable and contorted grimace -- of the conservative-libertarian intellectuals that the article attacks, tells you all you need to know about the fairness of the article. Although the photographer did a good job translating how they are portrayed in the written word to the photos: as a bunch of scheming capitalist robber-barons from a silent 1920s movie.

Saturday, April 16, 2005

David Swindle:

Thanks to David Swindle for the nice comments.

He originally mentioned a blog-post of mine about Alan Keyes in this article of his.
It's fun being Sisyphus:

Ah, David Barton's & William Federer's shoddy historical research...the gift that keeps on giving.

This time the culprit is Devvy Kidd, and this is probably the most laughable, error-ridden article I've yet seen.

In it she claims in no uncertain terms, "Anyone who has done the historical homework knows that America is a Christian nation founded upon Christianity and Christianity alone." And that those who would invoke "the separation of Church & State" "have absolutely no historical understanding of the subject matter whatsoever."

And then she proceeds to argue her case with all of those text-book phony David Barton quotes. But that's not the worst of her errors. This is:

She discusses Jefferson's letter to the Danbury Baptists, where Jefferson famously says: "The First Amendment has erected a wall of separation between church and state...." And then Kidd goes on:

However, the court chose to ignore the remainder of Jefferson's comment which continues: "but that wall is a one-directional wall. It keeps the government from running the church but makes sure that Christian principles will always stay in government."

LOL. She actually links to Jefferson's freakin' letter. Did she bother to read the damn thing? EARTH TO DEVVY: JEFFERSON DOESN'T SAY THESE WORDS!!!! STOP PUTTING WORDS IN JEFFERSON'S MOUTH THAT HE DIDN'T SAY. Next time you quote from a founder as distinguished as Jefferson and link to a very brief letter of his, please take the time to read it so you can confirm whether you quote him accurately.

The damage has been done:

At least one other columnist has cited Ms. Kidd's phony Jefferson quote. 18-Year-old columnist Christian Hartsock, uses the same mistaken quote here.

Then Kidd's article continues to cite the most notoriously debunked David Barton quotes:

When Patrick Henry was writing on the Stamp Act back in 1765, he proudly and loudly proclaimed:

"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 this very reason, people of other faiths have been afforded asylum, prosperity and freedom of worship here."

Patrick Henry didn't say this. I've debunked it here. Anyone aware of Patrick Henry's militant antifederalism would know that describing the United States as a "great nation" would make him want to puke. Back then, few if any Founders spoke of the United States as a "great nation," but rather in a plural sense (i.e, "the United States are" as opposed to "the United States is") as a collection of united free and independent colonies. It wasn't until after the civil war that the question was settled that we were one "great nation." Patrick Henry as a militant anti-federalist never spoke of the United States in anything other than a plural sense and 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."

But it gets worse, Kidd has Henry stating this in 1765, 11 years before we declared our independence!!! What "great nation" could Henry have been referring to? Great Britain? Back then we were still a bunch of British Colonies.

Then Kidd cites this phony quote attributed to John Q. Adams:

July 4, 1821, John Quincy Adams, Sixth President of these united States of America:

"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. From the day of the Declaration, they (the American people) were bound by the laws of God, which they all, and by the laws of The Gospel, which they nearly all, acknowledge as the rules of their conduct."

And finally she quotes this phony statement that Madison never uttered:

James Madison, Fourth President of these united States of America and the man who wrote the U.S. Constitution:

"We have staked the whole future of American civilization, not upon the power of government, far from it. We have staked the future of all our political institutions upon the capacity of mankind for self government; upon the capacity of each and all of us to govern ourselves, to control ourselves, to sustain ourselves according to the Ten Commandments."

And wrapping things up she writes:

In any event, I rest my case. American was not founded on any other religion except the Christian religion, at least I have never found a single historical document to support such a position.

No single historical document? Uh, maybe you'd want to check out the Treaty of Tripoly, ratified by the US in 1797 when John Adams was President, which states:

[T]he government of the United States of America is not in any sense founded on the Christian Religion.

And in terms of not being founded on "any other [non-Christian] religion"...of course. The United States was not founded on any religion, but rather on certain "self-evident Truths" that can be ascertained by man's reason alone.

Good Lord Ms. Kidd, please do some elementary historical research next time you undertake to make such bold historical claims.

Update: Brayton's on it here and here.

Thursday, April 14, 2005

Rights and Constitutional Construction:

Ed's got a really great post on constitutional interpretation. Like Brayton, I think most charges of judicial activism are bunk, so much so that the word has become practically ruined by demagogues. However, that doesn't mean that the Supreme Court doesn't get it wrong, by any objective measure. They certainly do in many cases. Call it judicial activism, call it what you will, the Supreme Court has often gotten it wrong (and this was one of the key points in Randy Barnett's book, Restoring the Lost Constitution, that Brayton discusses).

For instance, the Slaughterhouse cases got it wrong. Justice Bork in asserting that the "privileges or immunities clause" was an "inkblot" and hence could be cut out of the Constitution got it wrong.

Any decision that tries to read things out of the text of the Constitution is wrong. The problem for conservatives who argue "activism" is that many decisions in which they would disagree are in no way inconsistent with the text of the Constitution.

For instance, the Constitution clearly has a textual free speech norm. And the text of the Constitution doesn't distinguish between "pornographic" videos on the one hand and videos of lunatic-wing-nuts distorting the philosophical origins of the Constitution on the other. They are both moving pictures with words and sounds. And if moving pictures with words and sounds qualify as "speech," then they are both "speech," which the Constitution's text explicitly protects.

Regarding the textual authority for Lawrence, it's the "privileges or immunities" clause of the 14th Amendment which clearly contains a substantive right to "liberty." Indeed, the Declaration of Independence states that governments are instituted among men to secure our unalienable right to liberty.

In terms of the Constitution not specifying a "right" to "sodomy" the Constitution neither specifies a "right" to interracial marriage (Loving). You will no more find that in the text of the Constitution, than you will a "right" to sodomy.

Now it could be argued Loving involves "race" discrimination and that's clearly outlawed by the Constitution. Not necessarily: Where does the 14th Amendment use the word "race"? (You can see how this, "read the Constitution so narrowly" so that if a word doesn't appear, then there can be no a deeply flawed method of argument).

In confronting particular constitutional questions, we must abstract general principles from the text and the historical meaning of the Constitution, and then apply the specific set of facts to whichever particular general norm is in question.* One could seriously argue that even though the word "race" isn't mentioned in the Constitution, looking at the context in which the 14th Amendment was ratified, it clearly intended to guarantee some sort of race equality. Okay. I'll concede that. But couldn't we also concede that looking at the context in which the Declaration, the Constitution, and the 14th Amendment were passed that our framers likewise intended to guarantee a substantive norm of liberty?

The likely retort; "yes -- there is a substantive norm of liberty -- but to a point." But the exact argument could be made with respect to the 14th Amendment and race: "yes, there is a substantive norm of racial equality, found within the 14th Amendment, but to a point."

So why should that "point" on liberty be drawn so as not to include "sodomy"? Brayton gives a good and fair summary of the argument:

[A]t the time of the ratification of the Constitution, laws against homosexual sodomy were widespread in the states and were part of a very longstanding tradition of such prohibitions in Western law. Neither the founding fathers nor the citizens who ratified the Constitution that they wrote would conceive of the sphere of individual rights that they sought to protect as including a right to homosexual sodomy. Therefore, for a court to "discover" such a right in a document that they wrote and ratified is to substitute their own ideological preferences for the clear meaning of the Constitution when viewed in historical context.

But guess what, the same argument can be made in the race context. First Brown, and then Loving. Arguably when the 14th Amendment was ratified, it was not intended to be so encompassing as to outlaw segregated schools. In other words, the Framers did not know that they making segregation illegal. Now "originalists" differ on this issue. Some originalists, like Lino Graglia and Raul Berger, concede that Brown was wrongly decided precisely because the ratifiers didn't intend it to outlaw segregation. Others like Bork make a case (Bork's case is rather weak, Posner demolishes it here) that Brown was consistent with original intent. So does Michael McConnell (I've not read his case).

But whereas we can argue over Brown, we cannot argue over Loving. The 14th Amendment was ratified upon the explicit, overt guarantees and reliance that this Amendment would not outlaw interracial marriages. Not only did they not know that they were outlawing interracial marriages, they specifically relied upon the fact that the legality of miscegenation bans would be preserved.

Thus, if that's your standard, there is no way to distinguish between the Lawrence decision and the Loving decision. Saying that a specific right to "sodomy" isn't found in the text of the Constitution won't do it, because neither is a specific right to "interracial marriage" found in the text. Simply invoking the word "race" won't do it either, because we can just as easily invoke the word "liberty."

* i.e., Apply the specific fact of interracial bans to the general norm of race-equality which we extract from the "equal protection" or the "privileges or immunities" clause of the 14th Amendment. Technically, this process is known as constitutional construction, as opposed to interpretation.
Saul Bellow, RIP:

Saul Bellow recently died. I'm not much into novelists; the only book I've ever read of his was his last, Ravelstein -- and that was only because it was about Allan Bloom, whose work on political philosophy I have read and greatly enjoyed even as I disagree with some of it.

Ravelstein should be read after reading Bloom's The Closing of the American Mind.

That's because Bloom, as a Straussian, either writes in code or otherwise beats around the bush regarding what he really believes. For instance, in Closing, Bloom makes a big deal over how post-modern Nietzschean philosophy had seeped down all the way to the masses in America, who didn't fully understand it. And that we were living in an age where relativism, both cultural and moral, was such a strong public virtue that everyone knew, elementary, that (captial T) Truth was relative.

And this was not good, for a variety of reasons. The public needed to believe in Truth and Good and Evil.

And Bloom in Closing adopts a veneer of a 1950's style social conservative; like all of the other Straussians, he/they were publicly social conservative philosophers who supported religious conservatives and their public policy positions.

But in Closing, Bloom hints that he's really not sure that religious conservatives possess the Truth, even though they have the right to assert that they do. In fact, towards the end of the book, he sort of lets it be known that he is a non-believer, in not so many words.

Ravelstein's usefulness is that we hear Bloom speaking in "private" and we observe his private life. And thus, what he was "beating around the bush" in Closing, becomes more apparent. Bloom states categorically that he is an atheist because "no true philosopher can believe in God." Moreover, he is an unapologetically promiscuous homosexual.

The Truth that Bloom hinted at in Closing was this: For all of his hemming and hawing about How Nietzsche Conquered America, Bloom was an atheist-nihilist philosopher who believed that Nietzsche and Heidegger were correct as to the ultimate nature of reality.

Now, much has been written distorting his and his fellow Straussians' belief in this regard. For instance, while it's true that Bloom thought that this ultimate Truth was not fit for mass consumption, it was not because, as Shadia Drury argues, that giving the masses the Truth was like giving "pearls" to the "swine."

The Truth, according to Bloom and Strauss, was hardly a "pearl" but rather a horrific reality. Moreover, if the masses understood the implications of nihilism -- which they didn't because what they got was a watered-down, happy and ultimately false, "nihilism without the abyss" -- they would reject it. The philosopher can accept the horrific Truth of nihilism, because the philosopher loves discovering the Truth, even if that Truth is not a lovable one.

Moreover, Heidegger's ultimate support for the Nazi's demonstrated that you cannot found a political order or Nietzschean nihilism, that following the abyss will just as likely give you Nazi Germany as it will liberal democracy.

Bloom likened the Truth of nihilism to "playing with fire."

Ultimately, according to Bloom, that's why nihilistic-relativism was so dangerous and why only philosophers should be in possession of that Truth.

See also my past post My Understanding of the Straussians;

and this post by John Coleman;

and this article by (Bloom and Bellow's former student) John Podhoretz.

Wednesday, April 13, 2005

Captain Toke:

Randy Barnett mentions the great DC Circuit Judge Douglas Ginsburg who was nominated for the Supreme Court, but was then pressured "to withdraw his name when it was disclosed by Nina Totenberg...that he had smoked marijuana in the presence of law students when he was a professor at Harvard Law School."

Note: I don't know much about Ginsburg, but based on what Barnett writes, I'm sure he's the kind of judge I'd greatly respect and be happy to have on the Supreme Court.

But on a lighter note, growing up, I knew Ginsburg as "Captain Toke," mainly because of a really funny, absolutely classic, Saturday Night Live sketch, done around the time of the incident, where John Lovitz played Ginsburg. The episode was entitled, "The Rolling Paper Chase." Dressed as a hippie, he introduces himself to his Harvard Law class, "Hi, I'm Professor Douglas Ginsburg... But you can call me... Captain Toke." His office hours don't begin until midnight. And when his students come to see him, he coaxes them into smoking pot with him before he discusses the law. Then, the "natural law" becomes all the clearer under that marijuana buzz. One student, after smoking up with him, asks, "So what you're saying is that the Constitution was always there...and that Madison just...found it?" Captain Toke slowly nods in an authoritative way influenced by his marijuana stupor. Heavy, really heavy stuff.

What's funny about SNL, and also The Simpsons (when they're both good; I think The Simpsons are consistently better than SNL; even though both have had their share of bad moments) is the way that they get sophisticated writers who can write at different "levels" with jokes that may go over the heads of one audience but immediately followed up by, or put in the context of something that others will find amusing. For instance, growing up (I think I was about 15 when the skit, which I still have on tape from its original broadcast, aired) I've showed that clip to numerous friends who had no freakin' clue who Douglas Ginsburg was; in fact, they thought he was a fictional character created just for that sketch. But they found the sketch hilarious nonetheless.

I think the old Warner Bros. Bugs Bunny cartoons were some of the first shows to write at different "levels," entertaining to both a young (children) audience, but also full of references and "inside jokes" -- jazz and classical music (once they had a Wagnerian opera), movie stars, political figures, etc. -- to entertain the parents watching the cartoons with their children.

Monday, April 11, 2005

Stop Activist Judges Update:

The blogsphere has taken note of the radically revisionist, extremist conference put on by, which featured a number of former and present Congressmen and Judges as well as mainstream religious rights figures. And they picked up on a few things that I missed.

The Washington Post has a great article, mentioned by Andrew Sullivan, noting (what I missed) that one presenter, Edwin Vieira, argued that Kennedy should be impeached because his jurisprudence "upholds Marxist, Leninist, satanic principles drawn from foreign law." He then quoted Stalin and insinuated that Justice Kennedy would be better off dead. Salon goes into this in detail.

"Here again I draw on the wisdom of Stalin. We're talking about the greatest political figure of the 20th century … He had a slogan, and it worked very well for him whenever he ran into difficulty. 'No man, no problem.'"

The audience laughed, and Vieira repeated it. "'No man, no problem.' This is not a structural problem we have. This is a problem of personnel."

....[T]he full Stalin quote is this: "Death solves all problems: no man, no problem."...

Was Vieira calling for assassination? I'm not sure. The conference's rhetoric, though, certainly suggested that judges deserve to reap the horrors they have ostensibly sown. The affair finished with a rousing speech by recent Republican senatorial candidate Alan Keyes, who drew enthusiastic applause when he said, "I believe that in our country today the judiciary is the focus of evil."

Then Reason, linking to Is that Legal, wonders whether this qualifies as incitement to murder a federal official, which, in turn would require an investigation of Mr. Vieira (who would, of course, then play the victim card).

The Salon article also, in a harsh (but I'd argue duly harsh) way lays into the conference for its utterly revisionist history of our "Christian Founding" (and when the presenters say "Christian" they attach a very specific, i.e., Biblical Fundamentalist, meaning to that term).

They believe in a revisionist history, taught in Christian schools and spread through Christian media, which claims biblical law as the source of the Constitution. Thus any ruling that contradicts their theology seems to them to be de facto unconstitutional, and its enforcement tyrannical....

"Our Founding Fathers," [one of the conference presenters] said, "they were going to take the word of God, and God has given us in the Bible his word, and they said this book will always be true, and if there is ever a close call in policy, in leadership, in law, in society, if there's ever a question, we want to look to the source of absolute truth. That's why the Ten Commandments are so important. They were the original source of American law."

That version of history is taught at Christian schools like Jerry Falwell's Liberty University, Gibbs' alma mater. It is also a virtual fairy tale. The Constitution contains not a single mention of God, Christianity or the Bible. As the historians Isaac Kramnick and R. Laurence Moore wrote in their book "The Godless Constitution," such secularism wasn't lost on an earlier generation of Christian conservatives, who decried America's founding document as a sin against God.

They quote the Rev. Timothy Dwight, president of Yale College, who said in 1812, "The nation has offended Providence. We formed our Constitution without any acknowledgement of God; without any recognition of His mercies to us, as a people, of His government or even of His existence. The [Constitutional] Convention, by which it was formed, never asked even once, His direction, or His blessings, upon their labours. Thus we commenced our national existence under the present system, without God."

If the Judeo-Christian Council for Constitutional Restoration has its way, the present system will soon be coming to an end.

Saturday, April 09, 2005

Sandefur fisks Cella:


Friday, April 08, 2005

StopActivistJudges on CSPAN:

Ed Feser, in responding to my piece that I sent him, writes in an email that he didn't mean to defend "mere appeals to Leviticus and the like (and I know of no one at all influential who defends policy by such appeals anyway)."

Well I guess it all depends on what "influential" means. Or perhaps I should ask, "influential to whom?" The academy absolutely scoffs at such notions. But it seems to me that these elite secularists are exactly whom Feser criticizes for their religious intolerance.

CSPAN yesterday featured for a number of hours, a conference put on by, which featured Alan Keyes, Phyllis Schlafly, Tony Perkins, Mike Farris, Howard Phillips, Bill Dannemeyer, Morton Blackwell, Bill Federer, Rick Scarborough, Don Feder, Kay Daly, Janet Folger, Jan LaRue, Tim Lee and Patrick Reilly. Tom Delay was supposed to speak but got called away to Rome; so instead he sent in a videotaped remark.

I would call this conference "mainstream religious right." And this conference featured a number of Christian Reconstructionist types who absolutely held to the notion that it is perfectly legitimate, indeed required by our Constitution, that Revelation alone be written into public policy. Previously on CSPAN, I've seen Phillips, obviously informed by the Old Testament, refer to "sodomy" and "incest" as prototypical "capital crimes."

These are the folks to whom I refer when I speak of those who want to write Leviticus into public policy. I don't know if I would call them "influential." But they certainly are influential in the religious right. And the religious right is, in turn, influential in the Republican Party (Indeed, they claim to be its base).

Some of their critiques of judicial activism were valid; it's doubtful that our Framers would have anticipated the way in which their norms and principles are applied by today's courts. And courts today totally ignore rights (the 2nd Amendment, economic liberties, property rights) which certainly concerned our framers. But then again, our framers weren't "futurists" who told us exactly how the Constitution should be understood two-hundred and some years later.

But those at this conference also perpetuated a Constitutional "ideal" that was every bit as revisionist and fraudulent, if not more so than what they were attacking. In their fantasy world, our Constitution was taken right out of the pages of the Bible. References to Christianity in the Constitution that are so nominal as the customary way of stating the date (In the Year of our Lord) transform that document into one where Jesus is seen as central (even though the document is otherwise "Godless" and speaks of religion in a prohibitory or negative sense only).

They did the same rewrite with the Declaration. At one point Herb Titus, former Dean of Pat Robertson's Regent University Law School, explained exactly why the God of the Declaration is the Biblical one, by citing verses and chapters of Scripture. It would have helped his case if Jefferson, the Declaration's drafter (and his committee) referred to the Declaration's God as Jehovah and cited those same verses and chapters of Scripture; but of course, he didn't.

They criticize Leftists for reading things into our founding documents that aren't supported by their texts or original understanding. But that's exactly what they did. Neither the Constitution nor the Declaration claim to be "Christian" documents and they cite no verses and chapters of Scripture to indicate otherwise.

One thing that I've learned in my long study of the Founding is the centrality that Man's Reason played in the public/political sphere, hence our Enlightenment Founding. Our founding was a more conservative Enlightenment project than say, the French Revolution. But it was an Enlightenment Founding, nonetheless.

To understand this, it would help to familiarize oneself with the proper understanding of the term "nature." "Nature" was referred to in many key founding documents and writings: "Natural Rights", "the laws of Nature and Nature's God," etc. To demonstrate this point, let me cite someone who is thought of as one of the foremost (if not the foremost) conservative historians of America's Founding, Forrest McDonald. In the preface to Novus Ordo Seclorum, McDonald explains that some oft-used terms of that era had a different understanding as they do today. Regarding "nature," he writes, "natural had many of its present meanings, but it also meant discoverable by reason as opposed to revealed by God...." p. xi.

It would follow then that "Nature's God" is God, not as He is Revealed in the Hebrew Scriptures, but as His attributes can be understood by Man's Reason. The two concepts may be one and the same...or not (for instance, to Jefferson, Adams, and Franklin, and arguably Washington, Madison and many other key founders, "Nature" revealed God to be unitarian, not Trinitarian). So while God does have a place in the political theory that founds this nation, Man's Reason remains the ultimate arbiter of Public Truth. Truth as it is Revealed by Scripture is inherently private or a matter of "opinion." And such private opinion is absolutely protected under the public norms of freedom and equality of conscience. But private, Revealed Truth is not on what we based our public order.

Thursday, April 07, 2005

Off to see the Dixie Dregs:

Off to see Steve Morse and the Dixie Dregs. Music doesn't get much better than this.

Update: Morse never disappoints. He opened for himself too; how cool is that? The Dixie Dregs are his 5-piece (guitar, bass, drums, keys and violin); they headlined. The Steve Morse Band -- his three piece: guitar, bass, and drums -- opened.

Both the SMB and Dixie Dregs have the same guitarist and bassist: Morse, and Dave LaRue, respectively. But each have different drummers. The Dixie Dregs long time drummer is Rod Morgenstein, who alas, you may remember him from the 1980s pop-metal band Winger (I'm sure he did that for the $$$). He also now teaches at Berklee where he attended (and so did Dave LaRue). He wasn't teaching when I was there though.

At the end of the show SMB drummer Van Romaine came on stage and did a dual drum solo with Morgenstein. And then they closed with both on drums.

The Dixie Dregs originally had a different bass player, Andy West, who is now a computer programmer and a different violinist, Allen Sloan, MD, now an Anesthesiologist. Morse even quit the music business twice, once to become a farmer, and the second, a commercial pilot for TWA (tells you something about the music business).

When I saw them a few years ago, "old" bassist Andy West played with them throughout the entire night. Literally, for 1/2 the songs there were two bassist playing double lines, sometimes breaking off into octaves and harmonies. For the other half of the set, West played guitar and doubled either Steve or Dave.

Finally, one of the highlights of the show is the fact that the man who replaced Allen Sloan, MD on violin is none other than Jerry Goodman, the former violinist for the Mahavishnu Orchestra (one of the Dregs's main influences). Even though Morse is the star of the band, simply seeing Jerry Goodman play, by itself makes a Dregs show worth going to.

Check out one of their songs. Technically they are an instrumental rock/fusion band, a "fusion" of rock, jazz, blues, country and classical. Morse calls this style "electric chamber music."

Wednesday, April 06, 2005

Secularist Straw Man:

[Note: TCS politely rejected this submission. If any publishers want to print this, please contact me -- although I'm not expecting any.]

Ed Feser, in an article advocating the mixture of religion and politics, takes on a secularist straw man, while he accuses secularists of directing their arguments against a religious straw man. Feser's "secularist box" includes not only those who advocate bestiality, necrophilia, and infanticide, but also such venerable figures as Lenin, Stalin, Mao, and Pol Pot. My secularist box, on the other hand, includes James Madison, Thomas Jefferson and evangelical Christians like Roger Williams, the founder of the Baptists, which group up until recently ardently supported the Separation of Church and State in America.

Instead of arguing over the exact proper interpretation of the First and Fourteenth Amendments to the US Constitution (for instance, Feser “readily concede[s] that the Constitution forbids the establishment of any particular denomination as the official religion of the United States,” but nothing more. Madison, the architect of Constitution, by contrast, went so far as to declare the appointment of Congressional Chaplains to be a “palpable violation of equal rights, as well as of Constitutional principles…”), let me focus on the main thesis of Feser's article. He writes:

So why do [secularists] demand that religion and politics be separated not just in the constitutional sense that no one ought to be forced to belong to a particular denomination or to accept a particular creed, but also in the stronger sense that religious considerations, however well supported by rational arguments, ought to get no hearing in the public square and have no influence on public policy?

Feser’s secularist is a straw man: No one, as far as I know, wants to abolish religious convictions from the public square, as long as they are in fact "well supported by rational arguments," and alas, often, they aren't. In other words, one has to do better than "it's written in the Bible, therefore, it should be law," or "the Catholic Church says it, therefore it's got to be law" to justify one’s religious convictions as legitimate grounds for public policy.

And there is plenty written in the Bible and part and parcel of the dogmas of various religions that even the most ardent atheistic secularists support as acceptable public policy. For instance, as far as I know, the Bible says and the Catholic Church holds that we shouldn't murder innocents or steal—public norms that are universally supported by secularists and everyone else. Liberal secular humanists defend the Golden Rule as well. No one wants a legal system where a rule that is endorsed by the Bible cannot exist in our public laws.

Feser in fact, desires that religious conservatives do more than simply appeal to religious dogma or cite Scripture when they make public policy arguments. And he invokes thinkers -- including Catholics from the past (Thomas Aquinas) and present (Robert P. George) and metaphysical philosophers like Plato, Aristotle, Augustine, Duns Scotus, Descartes, Leibniz, Locke, and Newton -- who made rational arguments that coincided with their religious or metaphysical beliefs. Feser states that:

Thomas Aquinas, for example, would have found [the notion that religious beliefs are groundless to be] unrecognizable, committed as he was to the proposition that the foundational truths of religion could be demonstrated through reason alone.

Fine, so when religious conservatives make public policy arguments, they should prove their case through reason alone -- make a universal argument, accessible to man as man. They should not simply cite Leviticus and tell us it ought to be law. The Puritans, by the way, did this. They tried to write much of the Bible—explicitly referencing verses and chapters of Scripture—into their colonial civil codes. And the disastrous results were blasphemy, heresy, and idolatry laws, cited approvingly by certain members of today’s religious right, that merited the death penalty for openly worshipping "any other god but the Lord God."

Feser simply doesn’t adequately address that the Protestant fundamentalist wing of the "religious right" (the main wing) often argues, while citing revisionist history full of false quotes from our founders, that Biblical Revelation unassisted by Man’s Reason is a wholly appropriate basis for public policy. D. James Kennedy, Roy Moore, and David Barton, alas, are not Thomas Aquinas. And most of the historical philosophers that Feser cites, especially Locke and Aquinas, argued vociferously against appeals to Biblical Revelation or ecclesiastical authority alone as legitimate bases for public policy. Locke held that revelation and the positions of the various Churches were sufficient grounds for public policy only to the extent that such beliefs could be confirmed by Man’s Reason.

Seen in this way, thinkers like Aquinas, Locke and our Founders were the forerunners to John Rawls, insofar as they demanded that when religious convictions be made into public policy, that reason justify such sentiments. Catholic thinkers, with their natural law tradition, tend to accept this theory of "public reason" more so than Protestant fundamentalists when they make religious arguments for political positions. (Ironic in that we are a nation in which Protestantism, not Catholicism, was dominant during the Founding).

At the conference on Religion and Public Life put on by Robbie George's James Madison Program at Princeton University (which I attended), University of Maryland’s William Galston reflecting on Richard John Neuhaus's book, The Naked Public Square, noted the similarities between the positions of Father Neuhaus and John Rawls:

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

Now, Feser alluded in his piece that so long as the likes of Father Neuhaus and Professor George can justify fundamentalists’ support for writing certain Scriptural norms into law by “translating” those values into rationalistic arguments, the original arguments based on appeals to Revelation alone are de facto valid.

[S]ome liberals might object that it is one thing for religious intellectuals to weigh in on matters of public policy, but quite another for redneck Bible thumpers to do so….If a policy can be supported with serious arguments made by serious thinkers, what does it matter whether someone who is uneducated also supports it for less sophisticated reasons?

My response is that public policy appeals to Scripture alone should be summarily dismissed as invalid until someone like Robert George defends the policy via an argument based on natural reason; that’s when liberal society will engage such arguments put forth by religious conservatives.

Arguments based on scripture alone are unanswerable. We simply believe them or we don’t. As Andrew Sullivan put it, “If someone insists that God tells him that the sky is red, and makes no other statement to support the claim, it’s hard to have a very fruitful dialogue with him.”

Even Locke recognized that at least some of Scripture could not be justified by natural reason; you simply accepted or rejected it on groundless faith.

Unlike the case with bald Scriptural based assertions, we can analyze arguments based on natural reason for their the rational soundness. For instance, when the likes of Robert George and Gerard Bradley defend traditional sexual morality in this manner, we see that their view of nature sees not only homosexuality as “unnatural” and hence wrong, but also contraception between married couples and even masturbation. Most people reject (properly in my opinion) the notion that the natural teleology (in an “ought” sense) of sex is procreation, which would make immoral not only homosexuality, but also behaviors practiced, without controversy, by the vast majority of the population. But ultimately, that’s where the arguments ought to take place—within the domain of reason and rationality.

This is all we Enlightenment-influenced secularists are asking for—that religious arguments be independently justified by "public reason," because, in the public sphere, Man's Reason takes precedence over Biblical Revelation and the claims of ecclesiastical authorities. That’s the way our Founders -- who, in forming this nation looked not to the Bible or ecclesiastical authority but rather to certain “self-evident Truths” grounded in natural reason -- desired it to be.

Tuesday, April 05, 2005

What a Scumbag: Les Kinsolving:

Lester Kinsolving of WND:

With the unlikelihood that much of the Sodomy Lobby will follow Larry Kramer's poignant call, it is now time for mass hospital prison-camp quarantines for all those like this anonymous AIDS case, who has infected hundreds of other men.

Note: He's referring to the crystal meth addicted NY man who may have a "rare strain of HIV that is highly resistant to virtually all anti-retroviral drugs." This man may also have had unprotected sex with hundreds of men. But having unprotected sex with does not equate with "has infected hundreds of other men."

Saturday, April 02, 2005

Welcome Back:

It's really nice to see Sandefur back and blogging!

Update: And check out Kip Esquire's new blog.

Friday, April 01, 2005

Kameny on Feser:

I've worked on a brief retort to Ed Feser's article promoting the mixture of religion and politics and slamming "secularists." I've got at least one place I am going to pitch it (I think you can guess). And if it isn't taken, I'll post it as a moderately long blogpost.

Anyway, I'm on a private listserv with the great Dr. Frank Kameny, a legend in gay-rights activism and I shared my piece for criticism/comment, with links to Feser's piece. Here is Kameny's reaction, which he gave me permission to post here:

1. Throughout his discussion, Feser equates "religion" with what might be termed Judeo-Christian religion or biblical religion, as if there is no other. It is like their use of "faith", which always leads me to ask: Which faith and faith in what? Their definitions are narrowly limited, and render ensuing discussions meaningless from a larger perspective.

They assume an omnipotent, omniscient, benevolent god, and then get into endless insoluble philosophical problems with the existence of evil. If you are going to assume a god at all, it is perhaps not totally unreasonable to consider it (not he) to be omniscient and omnipotent, but benevolence is a rarely-questioned excessive leap. If we simply assume that god is malevolent, the "problem" of evil is solved on the spot.

2. All religion is irrational without demonstrable evidentiary basis in fact. They engage endlessly in what I call "philosophical dithering". "This must be so because we dither it to be so"; no proof or evidence. The claim that there MUST be a "First Cause" is just that. There is no proof or evidence. The universe itself is obviously its own first cause. It is infinite in time; the "big bang" was a catastrophic change of state but not a beginning. Postulating a supernatural first cause merely defers the explanation by one step and renders it beyond rational description, like the "Intelligent Designer"which does the same. The claim that there is something outside the material is some more "dithering", devoid of any valid, credible, persuasive evidence or proof.

3. The reliance upon the natural as justification for the moral and permissible is fallacious. We do almost nothing naturally from the moment that we are born and our umbilical cord is unnaturally cut with an unnatural knife unnaturally fabricated from unnatural metal unnaturally refined from natural ores, through eating unnaturally cooked food, living in unnatural houses while clothed in unnatural clothes made of unnaturally utilized natural fibers, until we die and are unnaturally buried in unnatural coffins instead of being naturally tossed into the fields naturally to decay. In fact, in this part of the country, the very fields themselves are unnatural, being created from natural forests by unnatural agriculture -- plants do not naturally grow all of one kind, evenly spaced in nice straight rows.

Have you ever thought how unnatural it is for adult humans to consume milk naturally intended to feed baby cows? -- unnatural twice over! Of course that one bites back for those with natural lactose intolerance.

Being unnatural is the unique and special hallmark of being human.

So lets get off this natural law kick. Let's have more and better unnaturalness; we'll be better and happier humans for it.

4. Finally, I find it amusing to note that first in his list of "horribles" is bestiality, a harmless idiosyncrasy and foible of a few people. As long as the animal doesn't mind -- and it rarely does -- there is no reason for anyone else to mind.