Sandefur on Cover of California Lawyer:

Sandefur is on the cover of California Lawyer Magazine. Impressive. I'm grateful to have such a distinguished co-blogger.

Benedict the pro-gay Straussian?:

From Andrew Sullivan:

At the same time, I have to say I'm struck by the references in the document. It's pretty stunning to me that Benedict should cite Plato's Symposium for his definition of eros. This sentence is mind-blowing:

"That love between man and woman which is neither planned nor willed, but somehow imposes itself upon human beings, was called eros by the ancient Greeks."

Er, not exactly. For the Greeks, eros meant a kind of longing. Plato saw it as bound up in the search for truth, as well as for beauty. But also - critically - it describes same-sex love as well as opposite-sex love. The Symposium, the source of Benedict's description of eros, treats same-sex love interchangeably with opposite-sex love, and the myth cited by Aristophanes even places same-sex erotic love on a higher plane than mere heterosexuality. (I'm even hoping to use the passage in my own marriage service, and began my anthology on gay marriage by citing it.) Benedict must know this. He's a deeply learned man. Why rest his own treatment on sources that clearly embrace gay love? Beats me. He even cites Virgil's Eclogues, a deeply homoerotic work. Part of me thinks that Benedict's anti-gay posture is just orthodoxy, made more reactionary by the social revolution of our time. And then I wonder if he doesn't have an esoteric meaning as well. Nothing in this encyclical couldn't apply to same-sex eros; his bigoted Instruction has helped expose the fact that the Church is a deeply homosexual institution, and in the West, at least, there's no real attempt (so far) to purge gay seminarians and priests. Maybe the Instruction's unpersuasive and naked bigotry is esoterically designed to advance the argument that gay people are obviously not "objectively disordered" in such a way to render them unfit for the priesthood. Is Benedict quietly showing the validity of same-sex eros and equal dignity of same-sex eros, even while publicly denouncing it? Or have I read too much Leo Strauss? Probably the latter.

Speaking of the Straussians, see this excellent article by Robert Kagan entitled, I Am Not a Straussian. My favorite part:

As best I can recall, their biggest point of contention was whether Plato was just kidding in The Republic. Bloom said he was just kidding. I later learned that this idea--that the greatest thinkers in history never mean what they say and are always kidding--is a core principle of Straussianism. My friend, the late Al Bernstein, also taught history at Cornell. He used to tell the story about how one day some students of his, coming directly from one of Bloom's classes, reported that Bloom insisted Plato did not mean what he said in The Republic. To which Bernstein replied: "Ah, Professor Bloom wants you to think that's what he believes. What he really believes is that Plato did mean what he said."

Sandefur on Bork, Bowers v. Hardwick's Dissent and Self-Ownership:

I was rereading part of Sandefur's classic article from the Harvard Journal of Law and Public Policy and noticed how footnote 203 posits a sentiment similar to that of my recent post on Justices Blackmun and Stevens, pro-sodomite Lockeans:

[FN203]. Douglas B. Rasmussen, Why Individual Rights?, in INDIVIDUAL RIGHTS RECONSIDERED: ARE THE TRUTHS OF THE U.S. DECLARATION OF INDEPENDENCE LASTING?, supra note 123, at 113, 119-26. The notion of self-directed personal flourishing that Rasmussen describes was most consistently asserted by Justice Blackmun:

We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual's life. "[T]he concept of privacy embodies the 'moral fact that a person belongs to himself and not others nor to society as a whole."' Bowers v. Hardwick, 478 U.S. 186, 204 (1986) (Blackmun, J., dissenting) (alteration in original) (citation omitted). Cf. Lawrence, 123 S. Ct. at 2478 ("[A]dults may choose to enter upon [a sexual] relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.... The liberty protected by the Constitution allows homosexual persons the right to make this choice."). It is not by accident that Robert Bork centers his legal theory on an attack on this passage from Justice Blackmun's Bowers dissent: "That view of the individual and his obligations can hardly be taken seriously," he writes. BORK, supra note 4, at 121. "In [the conservative originalist] view of morality and responsibility, no husband or wife, no father or mother, should act on the principle that a 'person belongs to himself and not to others.' No citizen should take the view that no part of him belongs to 'society as a whole."' Id. at 121-22. A comparison to Bork's view is found in a letter from Thomas Jefferson to James Monroe:

If we are made in some degree for others, yet in a greater we are made for ourselves. It were contrary to feeling & indeed ridiculous to suppose that a man had less right in himself than one of his neighbors or indeed all of them put together. This would be slavery & not ... liberty .... Nothing could so completely divest us of that liberty as the establishment of the opinion that the state had a perpetual right to [its] members. This to men of certain ways of thinking would be to annihilate the blessing of existence ....Letter from Thomas Jefferson to James Monroe (May 20, 1782), in THOMAS JEFFERSON: WRITINGS, supra note 14, at 777, 779.

Another Moronic, Bigoted Article from...:

You guest it, WorldNutDaily. Written by David N. Bass, "a 20-year-old Christian homeschool graduate," the article reads like a textbook at how certain "pro-family" groups use false, unreliable, or misleading statistics to bash gays under the rubric of "science" and "health."

I don't have the interest in picking the entire thing a part (I'm sure other bloggers like Ed Brayton or Exgaywatch will), so I'm simply going to focus on his statistic point number 5, in which he writes:

Life span -- A 1997 study published in the International Journal of Epidemiology found that even under "the most liberal assumptions, gay and bisexual men in this urban center are now experiencing a life expectancy similar to that experienced by all men in Canada in the year 1871." The same study estimated that homosexual behavior reduces the lifespan of males by eight to 20 years. Comparatively, the CDC has found that male and female smokers lose an average of 13.2 to 14.5 years of life, respectively.

Now, these same folks used to cite Paul Cameron's phony "43" figure until they got too much egg on their face, and realized they had to look somewhere else. So now they cite the IJE "8-20" figure. The problem with the IJE study is that while the researchers (unlike Cameron) may have been credible and while the number may have had some kind of original validity, it is no longer valid and citing as if it were is akin to lying.

The IJE figure was derived from one study, never replicated, taken from one Canadian urban enclave (so it probably never had a representative sample of gays, but rather disproportionately drew from sub-culture oriented urban gays). More importantly, the study was done during the worst of the AIDS crisis, just before the newer, groundbreaking meds were introduced. And those meds greatly impacted and reduced mortality rates within the gay community. In 2006, whatever validity the statistic originally may have had, it has not been valid for many years and the authors of the study attest to this. They wrote in 2001:

In our paper, we demonstrated that in a major Canadian centre, life expectancy at age 20 years for gay and bisexual men is 8 to 21 years less than for all men. If the same pattern of mortality continued, we estimated that nearly half of gay and bisexual men currently aged 20 years would not reach their 65th birthday. Under even the most liberal assumptions, gay and bisexual men in this urban centre were experiencing a life expectancy similar to that experienced by men in Canada in the year 1871. In contrast, if we were to repeat this analysis today the life expectancy of gay and bisexual men would be greatly improved. Deaths from HIV infection have declined dramatically in this population since 1996. As we have previously reported there has been a threefold decrease in mortality in Vancouver as well as in other parts of British Columbia.4

Folks like Mr. Bass claim that they don't hate homosexuals, they are just following their religion, etc. etc. and certainly I'm willing to give their devout religious convictions the benefit of the doubt. However, when they willfully lie or manipulate statistics to bash gays, I have a hard time believing that these people aren't professional haters.

Justices Blackmun and Stevens, pro-sodomite Lockeans:

In my last post on understanding John Locke, I noted Harvey Mansfield who described the tension between the more traditional notion that individuals belong to God and Locke's radically innovative insight that individuals own themselves. As Mansfield wrote, "The difference between belonging to God and belonging to yourself is not a small one."

Mansfield and other East Coast Straussians charge Locke, or at least his ideas, with ushering in a radically modern age (the Enlightenment) which broke with the traditional view of nature and public policy.

Whether Locke intended or foresaw that things would go down as they did, is impossible to know. However, there certainly is a kernel of Truth in the Straussians' notion that Locke launched the modern idea of liberty which gave men the freedom to live in radically different ways which previously they did not have. Robert Bork pejoratively terms such a notion, "radical individualism." Locke's ideas logically lead us to such "radical individualism." And Bork would probably agree given that he holds the Declaration of Independence responsible for radical individualism, and John Locke, of course, is the key philosopher behind the Declaration.

Take the dissent in Bowers v. Hardwick, the case Lawrence v. Texas overruled. Justice Blackmun, citing an earlier Justice Stevens opinion (who also dissented with Blackmun in Bowers), held "the concept of privacy embodies the `moral fact that a person belongs to himself and not others nor to society as a whole.'" Bork of course, in Slouching towards Gomorrah, disagreed with this "moral fact." Now, proving that any "moral facts" exist as a matter of 2+2=4 is not an easy task. Often, we have to start with certain asserted premises. And in determining America's governing public principles, the Declaration of Independence is a good place to begin. Well, John Locke, whose ideas are behind the Declaration of Independence, is also the author of the "'moral fact' that a person belongs to himself." No wonder why Judge Bork hates the Declaration of Independence and the Enlightenment!

A couple of things can be said in response. Most importantly that Locke, in his personal position, was anti-sodomy. As Thomas West notes in this article:

"Adultery, incest, and sodomy" are viewed, says Locke, as "sins, which, I suppose, have their principal aggravation from this, that they cross the main intention of nature, which willeth the increase of mankind, and the continuation of the species in the highest perfection" (1.59).

But, given the prejudices ingrained in context of the times, simply looking at Locke's personal position on particular matters is not dispositive in determining which direction Locke's principles ought to logically guide us (or if they are, then Locke's opinions are meaningless and useless to current policy debates). In other words -- and here is the most difficult and controversial part of the analysis -- we have to distinguish between time bound prejudices and timeless principles. Unalienable rights to liberty and equality, self-ownership...those are Locke's timeless principles. How to properly apply those principles is another matter entirely.

So why can't we just take Locke's principles and personal positions together, exactly as he argued for, frozen in Locke's time? Doing such turns Locke into a useless philosopher. Showing Locke is on your side in this regard would be about as valuable as proving that King George III is one your side. First, let's take religious liberty. Locke, although not the first to argue for religious toleration, is without question the most important philosopher to America's notion of religious liberty: Locke formulated the notion that men have unalienable free and equal rights of conscience. Madison and Jefferson could not have argued for religious liberty as they did had there been no John Locke. But Locke, in his personal position, didn't believe in extending tolerance to, among others, atheists or Catholics! However, when Jefferson and Madison took Locke's ideas, they expanded them in the spirit of Locke, to apply universally. After all if "all men" have unalienable rights of conscience, why shouldn't Catholics or atheists possess such rights equally? Are they not human? As such, "Lockeans" Jefferson and Madison asserted that religious rights extended to "the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination."

Or take slavery: Even though, as I understand, Locke in some way criticized the institution, Locke ultimately was pro-slavery (at least with regard to non-Englishmen) which he described as "nothing else but the state of war continued between a lawful conqueror and a captive." Back then slavery was, as it had always been, a cross-cultural institution, practiced nearly universally and deeply ingrained into societal institutions. Indeed, Locke held shares in a trans-Atlantic slave trade business.

Locke may have held a personal pro-slavery position, but it is also true that his principle -- "Every man has a property in his own person; nobody has any right but to himself; the labor of his body, and the work of his hands are properly his" -- is one of the most powerful anti-slavery principles ever articulated and surely helped to end that inhumane institution.

In short, if the personal positions of the great philosophers are dispositive and we may not abstract timeless principles from their context and prejudices of the times, such philosophers can do nothing for us in the present. This method gives us a pro-slavery Locke who wouldn't even extend religious rights to Catholics. We may as well invoke Ghengis Kahn as on our side.

If, on the other hand, we may abstract general principles from their context and apply them in ways in which the formulators may not have anticipated, we surely get an anti-slavery Locke, but his "'moral fact' that a person belongs to himself" may also justify such things as the verdict in Lawrence v. Texas.

Great Stuff from Sandefur:

My coblogger over at Positive Liberty, Timothy Sandefur, was nice enough to send me a copy of Akhil Amar's new book on the Constitution. He's already read it and begun blogging about it. See his first post.

Also, anti-Lincoln scholar Thomas DiLorenzo takes a swipe at Sandefur in this article. See Sandefur's devastating rebuttal.

Finally, if you didn't know, Sandefur's absolutely classic article from the Harvard Journal of Law and Public Policy on the Declaration of Independence and liberal originalism is available for download. A must read!

Understanding Locke:

Here is a great article by Harvey C. Mansfield on understanding America's philosopher, John Locke, and the relationship between his ideas and our Founding. Locke is extremely easy to take out of context; so, to understand his ideas, it's important to think hard about what he wrote, his contradictions, how to perhaps resolve those contradictions, and the context of the times in which he wrote.

Depending upon one's interpretation, Locke was either a Christian who grounded his arguments for liberty and equality in religious terms, or a secular philosopher who wanted to transgress revealed Christianity. Mansfield endorses the Straussian account of Locke as a "modern" philosopher, which is closer to the latter view. He especially focuses on the problem of reconciling liberty and virtue, specifically Christian virtue. The paradox is this: The Bible tells men how to live. If we only have the liberty to do what the Bible approves, that's not a meaninful understanding of the concept. And keep in mind, Locke helped bring us out of a time when Church and State were one, and when it was viewed as entirely proper to write the Bible and Church doctrine wholesale into the civil law. Mansfield writes:

For Locke, then, the harmonizing of liberty and virtue begins from the harmonizing of liberty and religion. In the face of the apparent fact that the Christian religion tells men how to live, he must show, if he can, that it actually permits them to live in freedom. How does he proceed?

Locke gives two descriptions of the character of men in their fundamental relation to liberty. He says that they are the “workmanship” of God, that men are “his [God’s] property” and so belong to God; but he also says that “every man has a property in his own person.”1 These appear to be directly contrary because the “workmanship argument” (as it is called by Locke’s interpreters) would make man a slave of God2 whereas the idea of property in one’s own person sets him free to do with himself what he wishes. Thus Locke says, in accordance with the former, that men have no right to commit suicide (“everyone is bound . . . not to quit his Station wilfully”3). But in accordance with the latter, though saying nothing directly about a right of suicide, he pronounces that in the state of nature, man is “absolute lord of his own person and possessions.”4 Yet Locke does not make a point of the contradiction between these two descriptions. It is rather as if he had forgotten what he said earlier or perhaps lost his train of thought. Yet Locke does not seem to be a woolly-minded fellow, and his reputation shows that both his friends and his enemies take him seriously. His political thought typically contains contradictions, of which this one is perhaps the most important, but he leaves the reader to do the work of establishing the contradictions and working out their implications. In this case and in other cases, Locke does not leave the contradiction as flat as I have reported it; he teases readers with possible routes by which it might be harmonized.5 But most of all, Locke lets readers do their own harmonizing by allowing them to combine two things they want to believe. Almost all of Locke’s readers would want to believe in the truth of Scripture, and many of them would like to think, or might be persuaded to think, that their belief is compatible with, or even entails, the notion of liberty that Locke sets forth.

The difference between belonging to God and belonging to yourself is not a small one....

Strauss argued that Locke was imbibed in Hobbes and essentially needed to sell Hobbes's ideas to a Christian audience. Locke argued contra Filmer, the leading defender of Divine Right of Kings, who explictly grounded his argument in orthodox Christian terms. Strauss correctly notes that Hobbes's and Locke's "state of nature" theory, which is absolutely fundamental to the philosophy of the Founding, is "wholly alien to the Bible."

Tying this to the deist/unitarian-orthodox Christian debate on the Founders' personal religious views, I've seen it argued that even those Founders like Franklin, Jefferson, and Paine, who clearly weren't orthodox Christians (and who were essential to the Revolution) made Biblical allusions and arguments that were consistent with Christianity. Perhaps they did; after all, they needed to get the institutional forces of Christianity on board against the British. But the converse is also true. There are Founders whom we would place in the "orthodox Christian" box like Patrick Henry, John Witherspoon, and others, who, in their arguments, spoke in the language of state of nature/social contract and rights -- in other words, Christians who made Hobbsean/Lockean, Enlightenment arguments.

As Allan Bloom put it in The Closing of the American Mind:

When Bishops, a generation after Hobbes’s death, almost naturally spoke the language of the state of nature, contract and rights, it was clear that he had defeated the ecclesiastical authorities, who were no longer able to understand themselves as they once had. pp. 141-2.

Child Sexual Abuse and Harm:

Clayton Cramer is pickin' on me in two posts for my earlier post calling him "hysterical" about the possibility that the underaged may have sex with legal adults (and that such hysteria is dangerous because it could lead to witch hunts).

In one of the posts, he notes a study that demonstrates victims of childhood sexual abuse are significantly likelier to suffer severe mental disorders. I agree entirely. Pedophilia is wrong because it harms children, period.

My initial post noted that such hysteria was problematic partly because it seems to cloud our ability to draw rational lines in statutory rape cases. I agree that because age, by its very nature, is in a constant state of flux, we have to draw the line somewhere and wherever we do will seem arbitrary to *some* extent. But, regarding the case I noted, which involved a 17-year-old young man and a 33-year-old woman in an entirely consensual relationship, there is simply no way that this case, as a factual matter, qualifies as "child-sexual abuse."

Still, Cramer writes:

But reverse the sexes--and make this case involving a 33 year old male youth counselor who ends up having sex with a 17 year old female who had been referred to him. I think most people would recognize that there's something disturbingly exploitive about taking advantage of what is probably a troubled kid for sex.

I agree that this case involved a "counselor" makes it more disturbing; but I don't think that fact had anything to do with the criminal issue. I don't agree that most people would find a 17-year-old female/33 year-old-male too disturbing. Not meaning to invoke a "reductio-ad-Seinfeldium," but remember Jerry Seinfeld "dated" Shoshana Lonstein when she was 17. It's frightening to think that if they traveled to Oregon, Seinfeld would have been a "child rapist."

And isn't there something mildly Orwellian about the notion of statutory rape transforming someone who has consensual sex with a post-pubescent but underaged young adult into a "child rapist"? (We cannot enact 2+2 = 5 into law.) The word "child rape" connotes unspeakable evil. Yet, what occurred in the above mentioned case simply was not.

Update: Clayton Cramer responds with a post "amazed and amused" by my reductio-ad-Seinfeldium argument, and, correct me if I am wrong, seems to think that the Jerry Seinfeld dating a 17-year-old tid bit took place, not in real life, but in an episode of the show. No, in real life, Jerry Seinfeld, in his late 30s, dated Lonstein when she was 17. And unless they were "waiting" until she turned 18 (I presumed they weren't), the "real" Jerry Seinfeld would have been "Jerry Seinfeld: child rapist," had they traveled to Oregon.

Yes, it was a bit creepy. But no, I wouldn't call it "child rape" in a factual sense. One of the funnier moments of that whole controversy, see this parody (scroll all the way down) that Howard Stern did on Janis Ian's classic song At Seventeen. Ian actually came onto his show and (reluctantly) performed the song in a duet with Stern with them trading verses. Seinfeld used to be a regular guest on Stern's show...until that song.

Linked:

Thanks to Karen for the link and be sure to check out her new blog Peripetia.

Thoughts on Blackstone, Religion and the Founding:

I agree with what both Brayton and Sandefur have written on Blackstone, religion and the civil law. I'd like to point out how this dispute illustrates how Reason (Athens) and Revelation (Jerusalem) have played a central role in virtually all aspects of Western Society (especially politics), but how ultimately, the public foundation of the United States rests on the sovereignty of Man's Reason and consigns the Truth of Revelation to the realm of private conscience.

The common law is based on the natural law. And natural law is synonymous with what is discoverable by man through Reason. Natural law is an extremely ancient concept. It traces back to Aristotle (so it has Pagan roots) and was adopted into Christendom by Aquinas (and Christian roots). The Anglican Church (I do believe) inherited the natural law from its Catholic roots. And these Christians generally used the natural law to support Church teachings. This pre-Enlightenment natural law existed at a time when Church and State were one, and as Sandefur pointed out, it shouldn't surprise us that religious freedom was not part of the common law of England (or the then understanding of the natural law).

Blackstone understood that the natural law was a type of organic law that trumped all human positive law. It was, in theory, "binding over all the globe, in all countries, and at all times; no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original." This theory was helpful to judges, especially when deciding novel cases with no underlying statute. They could operate under the assumption that they were not "making the law," but rather, "discovering" through the use of their Reason what was already there.

But Blackstone then discusses how man's Reason was corrupt and Revelation could be used to guide reason in discovering what the natural law held. Hence Roy Moore could write (in the case Brayton discusses): "Natural law is the law of nature and of nature's God as understood by men through reason, but aided by direct revelation found in the Holy Scriptures". And it was on this basis then that Christianity could be incorporated into the common law.

This represents more of an "old-school" (Thomist) pre-Lockean, pre-Jeffersonian-Madisonian understanding of the natural law where the concept was used by ecclesiastical Authorities to support Church doctrine and power. But America was founded on a more modern understanding of nature and reason. And by "modern" I mean that "reason" had "discovered" certain errors in the older version of the "natural law" and hence corrected them, or otherwise incorporated "new" discoveries. The "old" (Thomist) version of the natural law justified such things as slavery and burning heretics at the stake and knew nothing of the concept that men existed in a "state of nature" and possessed unalienable natural rights.

Our Founders, the American Whigs that they were, were keen on these "new discoveries" of man's reason which had the effect of pulling the rug from underneath the divine rule of kings and ecclesiastical authorities. As Allan Bloom wrote in The Closing of the American Mind:

From his reflection on the state of nature, Locke drew the formula of Enlightenment, with its particular combination of natural and political science. Its starting point is the untrammeled use of reason....Freedom for man consists in ordering his life according to what he can see for himself through his most distinctive faculty, liberated from the force of tyrants and the authority of lies, i.e., myths. Through unaided reason, man as man, as opposed to the man of this place or time, nation or religion, can know the cause of things, can know nature for himself. p. 163-4.

....

It had to be, for in order to have rulers who are reasonable, many of the old rulers had to be replaced, in particular those whose authority rested upon revelation. The priests were the enemies, for they rejected the claim of reason and based politics and morals on sacred text and ecclesiastical authorities. p. 257-8

As Sandefur and Brayton pointed out, the writings of the American Founders are replete with natural law references which contradict Blackstone's views on religion and government. Religion, to our Founders, was an unalienable natural right -- a right that was equally possessed, in Jefferson's words, by "the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination," and that men had the unalienable right to worship not just the God of the Bible as he saw fit, but also, again in Jefferson's words, "twenty gods, or no god." Because every man's religion, no matter how unorthodox, is an unalienable right which government must respect, religion is wholly within the realm of man's private conscience or opinion. It logically follows then that Madison and Jefferson would call for a "separation of Church and State" to ensure that such rights are not violated. And the notion that Christianity is part of the common law (hence something judges could enforce) completely contradicts these new natural law discoveries. Hence Jefferson's assertion "that Christianity neither is, nor ever was a part of the common law."

Such a notion was an "error" that "reason" had discovered and corrected, just as Newton's science replaced earlier errors and how Einstein's discoveries replaced some of the things Newton believed.

Now, one could assert that nonetheless, the Lockean-Jeffersonian-Madisonian "updated" version of the natural law is still largely consistent with and complementary towards Biblical Revelation -- that such an understanding, for instance, improved orthodox Christians' ability to "understand" the religious toleration that exists within the pages of the Bible (this is the position that West Coast Straussians, Michael Novak, and some orthodox Protestants would endorse). The East Coast Straussian would argue that, no, Reason and Revelation are not quite so compatible. And many of the "discoveries" of Locke, Jefferson, et al. entirely contradicted the traditional classical/Christian understanding of nature. Leo Strauss held that Locke and Hobbes's "State of Nature" theory was wholly alien to the Bible. And indeed, the notion that men have an unalienable right to worship no God or Twenty God means that men have an unalienable right to break the First Commandment!

Just how compatible the "natural law/natural rights" theory of the Declaration of Independence is with traditional orthodox Christianity, cannot be resolved in this post as it is a subject of great controversy. It is interesting to note that the "natural law/natural rights" theory which founds our government does have a theology that goes with it (see this article by Thomas West). We might even call this a "public theology" or a "civic religion." It should be stressed that this public theology is not orthodox Christianity, rather, it is a natural (meaning discoverable by reason) theology. It holds that there is a Creator, Nature's God, that He grants men unalienable rights, that He created men free and equal, and may intervene when we don't respect each other's natural rights. It could be argued that this theology is, in some ways, consistent with traditional Christianity, but it is not orthodox Christianity. When Jefferson, Adams, Franklin and others explicated the finer details of their theology, it completely contracted orthodox Christianity. Reason discovered that God was unitarian not Trinitarian in nature, that He doesn't send men to Hell for eternity, that good works get one into Heaven, that Pagan religions contain the same Truth as Christianity and are also a valid way to God, that the Bible contains errors and amendments, and that God did not intervene in man's affairs in ways inconsistent with the laws of nature and science.

I point this out because there is an attempt by "Christian Nation" folks to connect our public principles in our public founding documents to orthodox Christianity, as though they "own" it, and, at best, make others who don't operate in such a tradition seem as "outsiders" or worse, argue that they ought not have equal constitutional rights. Justice Scalia endorsed the former view, and argued that while the Abrahamic religions (Judaism, Christianity, and Islam), have full and equal constitutional rights, "[w]ith respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists."

Scalia especially focused on the religious views of the first four Presidents as well as founding documents which invoked God. But those Founders and those documents speak in the language of "natural theology." And such a theology, as we have seen, is not consistent with orthodox Christianity in its finer details. Yet, orthodox Christians were not offended by our Founders supplications to God. But the Founders also never contradicted their unorthodox theology when they made such supplications. (This is why George Washington, though he spoke of a warm Providence, almost never publicly mentioned the words "Jesus Christ." It was as if that name was taboo to Washington's lips). So these Founders, when they invoked God, drew a Lowest Common Denominator between their unorthodox natural theology and the orthodox Christianity to which many common folks and ecclesiastical authorities in positions of social power adhered. This was our "civic religion." But it was a very low LCD: There is a God; He grants us unalienable rights; He is concerned about human beings and will intervene, especially if we don't respect the unalienable rights of others and nothing more. None of the above four Presidents ever more specifically defined the attributes of God when publicly acknowledging Him.

In other words, it is not Revealed religion, which is now consigned to the private sphere of society (the realm of "individual conscience" or "opinion") that founds our public order. It is the natural theology, but only invoked in a very vague and simple sense, otherwise, the consciences of orthodox Trinitarians would be "disregarded."

Being Ruled by My Students:

Interesting column by Michael Barone on the humble background of Judge Alito.

In his opening statement to the Judiciary Committee, Judge Samuel Alito told the senators where he comes from. First, Hamilton Township, N.J., the modest-income suburb of Trenton, where he grew up....Then Alito described Princeton, "a full 12 miles down the road," where he attended college....

I recently traveled through both Hamilton Township and Princeton. The contrast between the million-dollar-plus homes and fancy shops of Princeton and the modest-to-downright-depressing neighborhoods and strip malls of Hamilton Township was stunning. So, too, are the voting figures. Princeton voted 76 percent for John Kerry in 2004. Hamilton Township voted 49.3 percent for George W. Bush and 49.8 percent for Kerry.

....

[T]o paraphrase William F. Buckley, I think we're better off seeking guidance from the first 100 names in the Hamilton Township phone book than from a random sample of the Princeton faculty. It's comforting that Judge Alito evidently thinks so, too.

Quick note, my mother long was a teacher and then guidance counselor in the public school system which Alito graduated. In fact, she is close friends with Alito's first grade teacher (who knew then he was something special). I teach at the area community college and many of my students are from Hamilton Township. Being ruled by my students. Now that's a scary thought.

As Someone with a Fast Bladder:

I agree with this lawmaker. Public urination, if done respectably either 1) shouldn't be a crime, or 2) at the very least subject to a necessity defense.

I could get uromisitisis poisoning for God's sake.

This is Ridiculous:

This woman may be guilty of abuse of authority and indeed should be removed from her position as a counselor, but "sexually abusing a 17-year-old male"? Come on.

I've pointed out before, contrary to the notion of "pedophilia chic," the modern trend in this post-60s sexually liberated era is not to lower the age of consent, but to raise it. And to some extent this was a good move. Many jurisdictions traditionally allowed for post-pubescent 12 or 13 year-olds to have sex with adults, and that's too young in my opinion (even if that's around the time when nature makes us biologically fertile and hence biological adults).

There are some forces in the blogsphere who are hysterical about the notion that society might allow the underaged to have sex with legal adults. But what about the reverse -- that society will be hysterical about the possibility and start to engage in witch hunts -- and lose its ability to rationally draw lines as seems to have been done in the above case?

I've noted that in the criminal justice system, if a defendant is charged and gets to the trial stage, they are almost certainly guilty. Yet, I also noted there are "pockets of deviation" where incompetent government and overzealous prosecutors do railroad innocent folks. And unfortunately our underaged "children" (I put that in quotes because the above case involves a 17-year-old "child") and sex -- especially if relying upon repressed memories or the testimony of children coached by adults -- is one of those areas that has been prone to such hysteria.

Brayton's and Rowe's Sysiphusian Task:

Brayton has more here. David Barton's phony quotes get refuted again and again, but just keep on coming back.

I've had some valid criticism that refuting David Barton and his "Christian Nation" argument is to knock down a straw man. After all, one can make powerful arguments against the modern notion of Separation of Church and State, and Supreme Court Establishment Clause cases without endorsing Barton's "Christian Nation" twaddle.

But then I remind myself that a lot of people, perhaps millions, believe in Barton's nonsense. And that, I think, validates what Brayton and I do.

Update: Oy Vey! This guy is getting ripped apart in the comments section. (I wrote the comment on Adams and the Trinity.) I bet he's sorry he wrote this article.

Congrats to Ed Brayton:

On his new blog and check out his interview on DailyKos where he plugs our group blog Positive Liberty.

Derbyshire/Malkin/Cramer Award:

This blog doesn't have a "Derbyshire Award," now I understand to be a "Malkin Award." Perhaps we should have our own "Cramer Award." And the first winner would be, of course, Clayton Cramer. In his final comment on a thread devoted to his ACLU Derangement Syndrome, he writes:

I'm done with this bunch. Every time I start to kid myself that liberals are fundamentally decent people with a different perspective, I run into a bunch like this, and I realize, no, you are fundamentally evil people, making excuses to defend child molestation.

LOL.

Are the Founding Fathers Responsible for "The Living Constitution"?

If the "Living Constitution" means decisions where general principles put forth in the Constitution lead to results which the ratifers might not have expected (for instance, gender equality decisions, protecting pornography under the free speech clause, Lawrence v. Texas) then, arguably yes.

See this classic article by Thomas West on Allan Bloom, where Bloom asserts in The Closing of the American Mind:

This is a regime founded by philosophers and their students. . . . Our story is the majestic and triumphant march of the principles of freedom and equality, giving meaning to all that we have done or are doing. There are almost no accidents; everything that happens among us is a consequence of one or both of our principles. . . . [T]he problem of nature [is] always present but always repressed in the reconstruction of man demanded by freedom and equality. (97)

America was founded on liberty and equality. And many of the modern moral changes in society, according to Bloom, directly relate to evolving notions of liberty and equality. In other words, court decisions and other policy changes, although not what the ratifers of the Constitution "expected," logically grow from the general principles the Founders put forth. Even Robert Bork has observed this: "Equality and liberty are of course, what America said it was about from the beginning." Slouching Towards Gomorrah, p. 56. He further notes that the sixties (which he LOATHES) represented, in some respect, "an expansion of certain American (and Western) ideals" and that this "deserves to be stressed because if modern developments are in the American grain, if they grow from our roots, as there is reason to believe they do, they will be much harder to reverse than it is comfortable to think." Id.

So arguably, insofar as this approach pays homage to both the text and the ideals that underlie the Constitution, it is a form of originalism (perhaps, we could call it original meaning idealism). Justice Souter's opinion in Lee v. Weisman, explicitly grounded the ideas of Jefferson and Madison, is a textbook example of such an approach. Money quote:

"[T]hose practices prove, at best, that the Framers simply did not share a common understanding of the Establishment Clause, and, at worst, that they, like other politicians, could raise constitutional ideals one day and turn their backs on them the next."

As Souter notes, James Madison engaged in exactly such reasoning. The same Congress that helped to give us the First Amendment also put in Congressional Chaplains. There was never a lawsuit, during the Founding era, to get rid of such Chaplains. And they remain today. Yet on the question of their ultimate constitutionality, Madison wrote:

Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?

In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation.

The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles: The tenets of the chaplains elected [by the majority] shut the door of worship agst the members whose creeds & consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics & Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain? To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers. or that the major sects have a right to govern the minor.

Social conservatives, like Bork, can react in a number of different ways. One way is to try to "freeze" liberty and equality circa the understanding in 1789 (or when each relevant provision of the Constitution was ratified). But that begs the question as to whether this is the only proper way to interpret the Constitution (Bork certainly acts as though it is; Madison didn't seem to think so). The text of the document doesn't tell us how to interpret the document. And indeed, many of the so called "activist" decisions (the free speech cases are textbook examples) are entirely supported by the broad and general wording of certain provisions in the text.

Jack Balkin has termed Bork's "Original Intent" as "Original Expectation Originalism." In other words, it asks did the framers and ratifiers specifically expect (with a specific awareness) the text outlawed the specific government practice in question. Did the Framers and ratifiers of the First Amendment know they were outlawing Congressional Chaplains? And then they look at practice as almost dispositive.

This method has the effect of reading the individual rights in the Constitution in almost the narrowest sense possible (so it produces outcomes with which social conservatives agree).

One of the biggest problems with original expectation originalism (both leftists and conservative Harry V. Jaffa have pointed this out), is it is quite frankly impossible for this approach to take the moral high ground. The Constitution of 1789, according to this approach, is a pro-slavery document. The only way to make the original Constitution an anti-slavery document is to abstract ideals from it and read it through the lens of the Declaration of Independence (which is what Justice Thomas says he does). Robert Locke has an article that is noteworthy because it represents a social conservative being quite frank about what the original Constitution stood for when read through the lens, not of its ideals, but rather its compromises with those ideals:

Crucial facts about what America was founded on are deliberately hushed up by both liberals and conservatives and admitted only by the non-respectable Left and the non-respectable Right. Namely, that this country was founded upon conquest, slavery, sexism, and class rule. The Constitution, as originally written, holds that our ownership of this land by conquest is just, that Indians are savages, that blacks may be enslaved, that women have no fit role in government, and that the (little-remembered) restriction of suffrage to men of property by state governments is valid.

If this is what "Original Intent" means, then I and I hope most other folks, don't want any part of it. Thankfully, our Founders gave us their ideals which allow us to rise above their illiberal and indefensible compromises.

Finally, let me state that I don't necessarily fault our Founders as "evil" for allowing such compromises. Many of the practices -- slavery being the classic example -- were so deeply ingrained into our traditions and institutions that they would be practically impossible in 1789 to uproot, or at least to uproot without causing our society to go into convulsions like the French did.

Five weird Things about Me:

Okay. Karen tagged me with this one.

1. When I was little I wanted to be a bodybuilder/professional wrestler when I grew up. I planned on being about 6'6". When my parents told me I didn't have those genes, I insisted I could add about 4 or so inches of height by building up my shoulders (I showed them pictures of bodybuilders with huge shoulders which gave the illusion of added height).

While I haven't reached the height goal, I'd say my body is looking pretty good.

2. I once got three red cards in one semester in 11th grade. My parents found out about 5-years later.

3. I once had a mullet (picture forthcoming).

4. I have somewhere between 3-5,000 comic books, all of which I keep enclosed in plastic bags.

5. I developed a strange affinity for the Brady Bunch as a teen; I used to insist that Robert Reed was the greatest-actor-ever (better than Brando and Olivier) and met Barry Williams when he spoke at my best friend's college.

Crime control v. Government control:

These two cases illustrate why I support the death penalty in principle (although I have some obvious problems with the way the system is structured). As a matter of moral desert, these perps deserve death and probably far worse than what the 8th Amendment protects them against.

I have no problem with government coming down hard with its iron fist against those who commit violent crimes against person or property. I don't pretend, however, that government all of a sudden becomes "competent" when it is dealing in legitimate matters, like punishing violent criminals, or otherwise protecting our liberty and property rights.

Sometimes I question the whole adversarial system altogether (not all nations have it; some have "inquisitorial" systems where the lawyers work together to search for the truth). By the time someone stands for trial, odds indicate that they are not just likely to be factually guilty, but almost certainly factually guilty of the crime in which they charged. But still, even if it's 2-3% who are innocent, those 2-3% matter. And when the death penalty is finally given, that's a mistake that cannot be undone. Currently government (I can say this almost as an absolute) never executes innocent people because the current system of seemingly infinite "i" doting and "t" crossing makes it impossible to do so. If, for instance, we were to ensure that those convicted of capital crimes are executed within say 2-years of conviction, then that would pretty much guarantee some wrongful executions, after say the first 1000 or so people were executed. I'm not sure if that would be worth it. And I'm not sure if it's worth it now to take 20-30 years, with endless appeals, to execute someone.

Also, even though, on average, innocent people rarely stand trial for crimes, there are plenty of pockets of deviations from the norm, where prosecutors are overzealous or government is just plain incompetent in getting the wrong person. That does temper my desire to come down as hard on violent criminals than what I think they deserve.

How do you Know when you are Dealing with a Paranoid Antigay Crank?

When they cite Marshall Kirk and Hunter Madsen's After the Ball as some sort of "Holy Grail" blueprint for the "homosexual agenda."

David Kupelian wrote a new book for WorldNutDaily where "After the Ball" features prominently in "The Marketing of Evil." The only problem is, After the Ball is practically an urban myth. Yes, it was a real book. But no, the way in which the book is portrayed is simply not accurate. Just do a google search on After the Ball and see what comes up. Pro-gay sites? Gays talking about how wonderful a book it is because they can use it to advance their agenda? No. Why? Because the overwhelming majority of "gay activists" have never read and probably never even heard of the book.

So what does pop up on the google search? All antigay conspiracy mongering.

A few years ago, Steve Miller nailed it:

I vaguely remember this book from my years as a GLAAD committee chair in New York (before being pushed out for raising objections to the group's unctuous political correctness). I recall that "After the Ball" did make a good case for a mainstream gay rights movement that focused on placing the normality of our lives before the American public -- and using professional PR strategies to accomplish this. But the book didn't generate much buzz among the lefty lesbigay activists at the helm of "the movement" and certainly was never adopted as any kind of a blueprint. Today it's all but forgotten. To suggest that this book is and has been driving a "gay agenda" is bizarre to say the least. How gullible are these people?

[Update: I expanded on this post over at Positive Liberty.]

OKLAHOMA violates Lawrence:

Based on the facts as I see reported, this guy's arrest clearly violates the Lawrence decision. Two thoughts: 1) It couldn't have happened to a nicer hypocrite, and 2) I can't wait to see if this guy relies on Lawrence in his defense.

George Washington's Character:

I confess although I read parts of Forrest McDonald's Novus Ordo Seclorum, I didn't read it cover to cover. So on this Christmas break, I decided to read some parts of it I missed and I found a really interesting passage on George Washington's character.

[Keep in mind that McDonald is hardly a PC-historian -- so you can't accuse him of PC-revisionism.]

It is obvious why Washington was trusted, however; the more elusive question is how a man could become so utterly trustworthy. Admittedly, he was far from being an ordinary man, but he was a long way from being a saint. As a soldier he had been capable of blundering, rashness, and poor judgment. He was addicted to gambling, apparently indulged in a good dealing of wenching, was avid in the pursuit of wealth, and was a "most horrid swearer and blasphemer." He was vain, pompous, pretentious, and hot-tempered in the extreme; and though he was normally a perfect gentleman in his public behavior, he could be a perfect alley cat in his private behavior. Even in public his conduct was not always free of blemish. During the war he had been willing to hang an innocent British prisoner, Capt. Charles Asgill, in retaliation against the unauthorized behavior of some hooligan New York Loyalists; and Washington was not sufficiently magnanimous to grant the request of the unfortunate Maj. John Andre to be shot as a soldier rather than to be hanged as a spy. And yet a whole nation could entrust him with its liberty and, indeed, its fate, in revolutionary circumstances which almost invariably breed Caesars and Cromwells, and could know that it was safe to do so.

pp. 192-3.

On a similar note, every year D. James Kennedy recycles his sermon attempting to demonstrate Washington was a born-again evangelical Christian (last year's parts one and two). It's almost comical to listen. Almost everything Kennedy says is either not on point, unsubstantiated, or downright false. I know it seems as though Kennedy, clownish as are many televangelists, is an easy straw man to knock down; but millions of people believe his nonsense.

There is an angry tone to Kennedy's sermon on Washington as well. He cites this long "rant" from some crank professor on the iconoclastic tendency of modern historians (to shatter myths) and accuses all of those who don't advance his "Washington was a born-again Christian" thesis of being PC-revisionists, which is absurd. No credible historian regardless of ideological leanings, endorses Kennedy's assertion that Washington was a born-again evangelical Christian. At best, they will argue that Washington's exact religious beliefs are indeterminate.

D. James Kennedy is the Parson Mason Weems of the modern era. Weems, if you don't know, was responsible for almost every half-truth and myth about Washington (like the "I can't tell a lie" Cherry Tree myth).

If I could put on my armchair psychologist hat and try to answer why Kennedy and others are so desperate to prove that Washington, and other framers (and Lincoln as well!) were "born-again" evangelical Christians....After all, one could argue convincingly against the doctrine of the Separation of Church and State, the ACLU's interpretation of the Constitution and Supreme Court caselaw without attaching oneself to the notion that our Founders were pious Christians who attempted to establish a "Christian nation."

See Kennedy believes that "America" is something special, "that shining city on a hill" and that it was God's Providence that helped America become so great and powerful. Now, if Kennedy's fundamentalist God really did take a role in making America what it is, doesn't it logically follow that God would choose fundamentalists (or as Kennedy would put it "Godly men") in taking a key role? Hence the need to demonstrate that so many key American historical figures were "Christians" like Kennedy.

But the historical facts don't match up so nicely with Kennedy's desires. What's ironic is how many key historical figures, though they may have believed in some kind of Providence or otherwise were connected to some Christian Church, did not possess orthodox beliefs. For instance, looking at the Wiki list of early Presidents and religion (Wiki is not always accurate; but in this case, it is), the first six presidents and Abraham Lincoln have either "Deist" or "Unitarian" next to their name.

Is God trying to give us a message, through these men, as to the "right" religion to follow?

Libertarian Prog-Rock Lovin' Prof:

There is more than one! After seeing my post on my favorite things on Positive Liberty, economics professor at St. Lawrence University, Steven Horwitz wrote me in an email and directed me to some of his writings on Rush, a band of phenomenal talent, whose lyrics are inspired by Ayn Rand.

Check them out.