Wow this is Cool:

See and listen to Julian Sanchez and Matt Yglesias chat it up.

Gouverneur Morris as "The Wolf":

Watching Richard Brookhiser interviewed on After Words this weekend left me wanting to read his book on Gouverneur Morris.

Brookhiser described Morris as being like "The Wolf" (Harvey Keitel's character) from Pulp Fiction: If you were in a bind, he was the man to call. As Brookhiser put it in this interview: "If you were broke, or in jail, or had lost the dearest person in your life, and you needed money, help, or consolation, the first Founder you would call would be Morris." Yet, Brookhiser joked, if you had him over for dinner you'd never seat him next to your wife or your daughter. Morris seemed to be an avid womanizer and fornicator.

And yes, like the other key Founders, Morris was a theistic rationalist.

The Religion on John Quincy Adams:

I've been doing some digging there too. I had known that JQA had started off, like his father, a Unitarian Congregationalist and thought that he had converted to Calvinism sometime in his early adult life. Indeed, one reason why I know of JQA's drift towards Calvinism is because father and son discussed religion in their correspondence and previously I reproduced a passage from a letter where the elder Adams discusses his Unitarianism and his son's Calvinism:

We Unitarians, one of whom I have had the Honour to be, for more than sixty Years, do not indulge our Malignity in profane Cursing and Swearing, against you Calvinists; one of whom I know not how long you have been. You and I, once saw Calvin and Arius, on the Plafond of the Cathedral of St. John the Second in Spain roasting in the Flames of Hell. We Unitarians do not delight in thinking that Plato and Cicero, Tacitus Quintilian Plyny and even Diderot, are sweltering under the scalding drops of divine Vengeance, for all Eternity.

John Adams to John Quincy Adams, March 28, 1816, Adams Papers (microfilm), reel 430, Library of Congress.

However, in doing further research it appears that John Quincy Adams's conversion wasn't complete, but that he vacillated between Unitarianism and Calvinism throughout the rest of his life. Or at least, that's the story that I get from these two links.

Happy Memorial Day:

Let me give a shout out to those who have ever fought and served in the US military, especially those who are doing so today or those who have made the ultimate sacrifice.

For a song that reflects the spirit of the holiday, here is Kansas's Icarus II -- This song is about (and written from the perspective of) the life of a WWII fighter pilot. Written (and copyrighted) by Kerry Livgren. From their 2000 release, Somewhere to Elsewhere. (You can hear the entire Icarus I -- one of the best Kansas songs -- on this really cool site about the Space Shuttle Challenger.)

Icarus II

In the darkness I rise, long before
the dawn
I was dreaming of home and the life I
led
I can hear the sound, of the engines
roar
And I crave the embrace of my
empty bed
Where I'm safe (there I'm safe)

But the call is clear, and the task is
set
And my enemies wait in the dark sky
Do they fear the same fear,
do they dream like us
Do they long for the day when it's
over
And they're safe

We are cruising above the horizon
Neve knowing if we will return
In a moment we'll loose the
destruction
And we'll justify all that we burn

Here the air is cold, but my thoughts
are clear
And so I'm wondering why I must be
here
For the evil that can come,
from the heart of a man
Must be answered in kind 'til it
disappears
And we're safe

Now we're cruising above the horizon
Neve knowing if we will return
In a moment we'll rain down
destruction
And we'll justify all that we burn

Here they come

Dodging all the tracers, sky is full of
lead
I can see the pilots' faces
Safety in our numbers, eagles
overhead
We are in the sight of aces

Flak, bursting all around
Friends, going down in flames

Now we're hit, it's happened
This is what I feared
Something's telling me my time has
come
Though it should be panic, I can feel
a peace
Strangely, now I know my purpose...

Hey boys! Hey, get out while you
can
I'll try to take us home

I'm going home...

Council of Nicea and Theological Unitarianism:

Okay, I know that the DaVinci Code makes a lot of ahistorical claims, but one area where the DVC may be getting a bad rap is in its assertion about early disputes among Christians regarding whether Jesus was God, or something less than God. Some are absolutely outraged that the DVC asserts early Christians disputed the doctrine of Jesus Godhood.

In reality, my research tells me that at least some early Christians thought Jesus something less than God, that there was a pretty serious split on the issue. And the Council of Nicea officially "settled" the matter by deciding on the doctrine of the Trinity, and not permitting dissent.

I've neither read the book nor seen the movie, but plan on doing the latter. If the DVC argues that no one before the Council of Nicea believed Jesus to be God or that the doctrine was "made up" at that point, then they are wrong, or at least overstating the historical facts (is that what they argue?).

But for a long time in Christendom, especially during the Founding, theological Unitarianism has had a rich dissident history.

Indeed, anyone who follows my research on the Founding and Religion knows that our key Whig Founding Fathers were theological Unitarians, as were Newton and likely Locke, Milton and some others.

Because many of these Unitarians existed at a time when the rights of conscience were not recognized, these dissidents had to be "secret" about their belief in the doctrine. Publicly denying the Trinity could get one executed for heresy, which is exactly what happened to Michael Servetus, whom John Calvin, then governor of Geneva, ordered burned at the stake for his Unitarianism.

I'm researching the background of the vote on the Council of Nicea. Critics of the DVC say that while the book argues the vote was close, in reality, the vote was overwhelming in favor of the Trinity. As I've pointed out before, John Adams appeared to believe the vote was close as well, and joked about it in the following manner:

"The Trinity was carried in a general council by one vote against a quaternity; the Virgin Mary lost an equality with the Father, Son, and Spirit only by a single suffrage."

John Adams to Benjamin Rush, June 12, 1812.

In reading up on John Adams's religion, the following claim made by David L. Holmes, Professor of Religious Studies at the College of William and Mary, in The Faiths of the Founding Fathers, surprised me:

Unitarians asserted that they had restored the original Christian belief that Jesus was in some way commissioned or sent by God but that he remained subordinate to him.

At one point in early Christianity, the majority of Christians did not believe in the doctrine of the Trinity. Citing such passages as Proverbs 8:22 ("The Lord created me at the beginning of his work, the first of his acts of long ago"), Colossians 1:15 ("[Jesus] is the image of the invisible God, the firstborn of all creation"), and John 14:28 (where Jesus says, "If you love me, you would rejoice that I am going to the Father, because the Father is greater than I"), they believed that God was a unipersonality to whom Jesus was subordinate. pp 73-4.

What surprised me was his assertion that at one point in early Christianity, the majority of Christians didn't believe in the Trinity. Is that right?

Still Feeling Sorry for Randall Terry's Son:

This is sad:

Randall said it was hard to decide how to treat his son’s homosexuality once he passed the stage of struggle and publicly celebrated it.

“I have to be honest with him,” said Randall. “Would you tell a drug addict, ‘I accept you. This is your choice, this is your life and I will stand by you’? The average death age of a male homosexual is 42 years old because of disease, because of suicide, because of alcoholism, because of drugs, because of violence. It’s just not a good world. It’s a self-abusive, self-destructive sexual addiction.”

The only problem is that it isn't true. The "42" statistic derives from phony "studies" done by gay hating crank Paul Cameron. And such "studies" were debunked about a decade ago.

What a loon.

Dembski on the Founders & Design:

Ed Brayton sent me this post of William Dembski's for my thoughts. In it Dembski criticizes Judge Jones's invoking the Founders as Enlightenment rationalists in this modern battle that pits science v. religion.

This quotation by Judge Jones, given at Dickinson College's (his alma mater) commencement address, is what Dembski disagrees with.

"The founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry...."

"They possessed a great confidence in an individual's ability to understand the world and its most fundamental laws through the exercise of his or her reason...."

"This core set of beliefs led the founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state."

To which Dembski responds:

"Who among our nation's founding fathers believed that the essence of religion is an Enlightenment rationalism that eschews design? None of them. Even Jefferson would be on the ID side in the current debate (inalienable rights conferred on us by a creator is not the language of the French philosophes)."

Let me make a few points. First Dembski doesn't contradict a thing that the judge said. Everything Jones said is spot on accurate. And the judge did not (correct me if I am wrong) say that "our nation's founding fathers believed that the essence of religion is an Enlightenment rationalism that eschews design." But rather, the judge pointed out that our nation's Founding Fathers were Enlightenment rationalists who believed that the Truth, even religious Truth, was to be found primarily "through free, rational inquiry."

Yet, our rationalist Founders were theistic rationalists who, as we all know, lived before Darwin. We could argue that as men of science and reason, had they been alive today, they would have been Darwinists. This is what Alan Dershowitz argues in his book on the Declaration of Independence:

[Jefferson] thought that the biblical story of creation was an ignorant human contrivance, and although he lived before Darwin, he corresponded extensively with scientists about fossils, extinction, and other issues of paleontology. His beliefs were based on the findings of science, not the revelations in the Bible. He surely would have favored the teaching of scientific evolution, not biblical creationism. But what about "scientific" creationism that purports to rely not on biblical accounts but rather on the findings of science? Here we can be less certain. In one respect, Jefferson can be characterized as a nonbiblical scientific creationist. He believed that the God of Nature created human beings (as well as the rules of human and physical nature). This belief was based on his understanding of science. The difference between Jefferson and most contemporary religious creationists is that Jefferson was willing to be proved wrong by science, whereas most of today's creationists generally use -- misuse -- science to confirm what they already "know" to be true, because the Bible says so. If Jefferson was convinced, as the deeply religious Professor Stephen Carter is, that creationism is "bad science," he would reject it, as Carter does. But in Jefferson's day, proof of God's creation "by design" seemed like good science, and Jefferson accepted it. I doubt that he would accept it today.

America Declares Independence, pp. 79-80.

Because our Founders lived before Darwin, ultimately, whatever contemporary position they would have held is speculation and their legacy thus can be taken only so far in this battle. I'm not sure if Dembski's point was that the Founders were "Christians" who put their Biblically based religious beliefs before what Man can know from Reason and Science, or if they simply believed in creation by design. If it's the former, I can easily offer scads quotations refuting Dembski. But one from John Adams will do. From his 1813 letter to Jefferson:

We can never be so certain of any prophecy, or the fulfillment of any prophecy, or of any miracle, or the design of any miracle, as we are from the revelation of nature, that is, nature's God, that two and two are equal to four. Miracles or prophecies might frighten us out of our wits, might scare us to death, might induce us to lie, to say that we believe that two and two make five, but we should not believe it; we should know the contrary.

Had you and I been forty days with Moses on Mount Sinai, and admitted to behold the divine glory, and there been told that one was three and three one, we might not have had the courage to deny it, but we could not have believed it. The thunders and the lightnings and the earthquakes and the transcendent splendors and glories might have overwhelmed us with terror and amazement, but we could not have believed the doctrine.

The specific context of the letter is Adams is denying the Trinity to Jefferson (they were discussing the repeal of a British law that made it a crime to publicly deny the Trinity). The general reasoning behind the denial is that, according to Adams, human rationality, not Biblical Revelation, is the ultimate standard for learning and evaluating Truth. Adams's sentiment was certainly dominant among our key Whig Founding Fathers.

Where Dembski is totally wrong is where he tries to draw some wedge between Jefferson and the Declaration of Independence and the French philosophes. The Declaration of Independence, Virginia Declaration of Rights, Virginia Statute on Religious Freedom and other American Revolutionary era "Natural Rights" documents were translated into French and helped spark their revolution. Indeed, Jefferson was in France laying the groundwork for the French Revolution by helping to write their Declaration of the Rights of Man.

And indeed, the two documents (and hence the two revolutions) make parallel (but not identical) ideological assertions and both appeal to a generic, undefined, rights granting God. So if the American Declaration of Independence, and hence our Revolution was "Biblical," then so too was the French.

But again, all of this occurred before Darwin; and the French philosophes, like the American Founders, believed in a "Creator" who created us by design. See Joe Carter's post Voltaire's Bastards: Why "Neo-Creationists" are the Heirs of the Enlightenment which takes note of this. (And the obvious retort to Carter's thesis is that noting Founding era thinkers did not endorse Darwin is like noting they did not endorse Einstein.)

If Germany can have David Hasselhoff:

Why can't the Arab world have him.

Judicial Negation v. Legislation:

Thanks to Randy Barnett, now of Georgetown Law, for linking to my post on judicial nullification v. judicial supremacy.

A lively debate has ensued in the comments section. And Barnett has a great follow-up post which defends the doctrine of judicial review on originalist grounds.

Particularly, he notes the importance and legitimacy of using the device as often as needed. Andrew Hyman of ConfirmThem.com quoted Hamilton as standing for the proposition that judicial review should be used sparingly, that courts should defer to Congress's understanding of the Constitution, and step in and strike down legislative statutes only when there is an "irreconcilable variance" between what Congress is doing and what the Constitution commands.

To which Barnett responds:

One way of framing the issue of judicial deference is to ask: "deference to what?" Many mean "deference to the policy judgment of the legislature." With that proposition few disagree. But what the debate is also about is deference to the constitutional judgment of Congress that a particular act is within its powers. When Congress was exercising "legislative restraint" by considering itself bound by limited and enumerated powers, its judgment on this question may have merited the deference showed to it by Hamilton, Jefferson, and others as well. But when Congress has abandoned any sense of constitutional limits, then there would seem to be no real judgment of constitutionality to which to defer. In this, Congress has been aided and abetted by the post-New Deal Supreme Court and by law professors who would take judicial power even farther than the New Deal justices actually did.

It's a Great Riff if You Can Learn It:

Jeff Beck's Cause We've Ended as Lovers. I used to be able to play the whole song note for note. Perhaps I should go back and learn it.

I learned a great deal about blues/rock phrasing from that song, perhaps more from that one song than any other source.

Ephebophilia and Evolving Morality:

Some people distinguish between pedophilia -- the attraction to and/or behavior with prepubescent children, and ephebophilia -- which involves post-pubescent but underaged actors. Personally, I'm of the mind that both activities are wrong for the same reason: They harm, or have the potential to greatly harm, the underaged actor involved. And that the younger the actor, the wronger it gets (and vice versa) and that our laws and social mores should reflect this.

On a related note, check out this interesting article by John Derbyshire, no social liberal, which contradicts the current moral sentiment of the National Review and Weekly Standard crowd in which Derb hangs. He seems to argue that ephebophilia (unlike pedophilia) is deeply rooted in human nature, that it is as natural and normal as natural and normal can be for adults to lust after post pubescent but underaged teens.

When a woman gets past her mid twenties, in fact, her probability of being raped drops off like a continental shelf. If you histogram the figures, you get a peak around ages 12-14… which is precisely the age Lolita was at the time of her affair with Humbert Humbert. As Razib noted, my own “15-20” estimate was slightly off. An upper limit of 24 would be more reasonable. The lower limit really doesn’t bear thinking about. (I have a 13-year-old daughter.)

Behind such sad numbers, and in the works of literary geniuses like Vladimir Nabokov, does the reality of human nature lie. It is all too much for our prim, sissified, feminized, swooning, emoting, mealy mouthed, litigation-whipped, “diversity”-terrorized, race-and-“gender”-panicked society. We shudder and turn away, or write an angry email. The America of 1958, with all its shortcomings, was saltier, wiser, closer to the flesh and the bone and the wet earth, less fearful of itself. (It was also, according to at least one scholarly study, happier.)

One of the first media sensations ever to impinge upon my consciousness was the visit to Britain by rock star Jerry Lee Lewis in May 1958, four months before Lolita’s American debut. This was supposed to be a concert tour, but 22-year-old Jerry had brought his wife Myra along, and the British press got wind of the fact that Myra was only 13. This wasn’t an unusual thing in the south of that time; Jerry himself had first been wed at 15 (when he already had a drinking problem). Myra was his third wife, and also his second cousin once removed. Back then country people grew up fast and close to their kin. Neither Jerry nor Myra could understand what the fuss was about. He: “I plumb married the girl, didn’t I?” She: “Back home you can marry at 10, if you can find a husband.” (This was not true, even in the south, though Myra likely believed it. She also, according to the British press, believed in Santa Claus.) It didn’t help that Jerry’s new record was titled High School Confidential.

How long ago it seems! Nowadays our kids are financially dependent on us into their mid-twenties, and can’t afford to leave home till they are 35. Marriage at 13? Good grief! And so, while Lolita met with a fair share of disapproval in 1958, and was denounced from many pulpits, I believe its reception would have been much more hostile if it appeared now.

On the issues of history and morality. My own understanding of the facts are (and please correct me if I am wrong), throughout most cultures including the West, and up until recently, no distinction was made between ephebophilia and pedophilia. Cultures followed the line nature draws between adult and child, which is puberty. After puberty, you are an adult ready for sex (provided it takes place within whatever social arrangements the society deems necessary for sex to occur, i.e., a marriage). The Jewish Bar and Bat Mitzvahs clearly remind us of this.

Yet, in our evolutionary state and for most of recorded history, people tended to die much younger and enter their vocational life much earlier. Back then, you really could be a young adult in your early teens and middle aged by your twenties.

Now people are living longer and longer; we don't graduate high school until we are 18 and most of us don't really start our adult lives, with all of its inherent responsibilities, until we are in our twenties.

Those are the historical facts; now onto the moral issues. Some argue that there are absolute transcendent moral facts, applicable to all times, everywhere (morality doesn't evolve). Others argue that morality is entirely determined by history (morality evolves). And there are variations in between. To crudely characterize these moral views in political terms, the transcendent moral order theory is more associated with social conservatism; morality is historically determined, more with social liberalism. Although, the reverse can be true; there are social conservatives who do believe that morality is entirely historically determined and thus evolves (many are Burkean traditionalists who want it to evolve as slowly as possible). And there are social liberals who believe their morality -- gay rights, equal treatment of women, etc. -- is objectively true, and applicable to all times, everywhere. (I know leftist who make the theoretical case for this are probably rare; but certainly many social liberals act as though their morality is part of a transcendent moral order. And they love to judge past illiberal Western times by these present day moral standards.)

Social conservatives who believe in a transcendent moral order may complain that present conventional morality, especially sexual morality, seems to be evolving in the socially liberal direction and these changes have been, by in large, malign. Indeed, previously things like fornication, missing the Sabbath, homosexuality, contraception, miscegenation all violated conventional morality, (which was supposed to be based on transcendent moral truths); but now they don't.

What's interesting about ephebophilia is that, even though generally sexual morality, over the past 50 years or so (especially since the sexual revolution) has evolved in a more socially liberal direction, with ephebophlia, sexual morality is evolving in a more socially conservative direction.

Again, correct me if I am wrong, but there is a marked upward drift in age of consent laws, which demonstrates that having consensual sex with underaged but post-pubescent teens is becoming less acceptable in our present, post-60s modern times. Anti-ephebophilia is truly novel and hence a "chic" notion.

And I personally support this change. As mentioned in the facts above, we are in a historically unique period of time where people are living and we are delaying childhood for much longer periods. Plus, recent studies I think have confirmed that brains continue to mature well after teen years and on into early twenties such that an adolescent seems to be a strange product of nature: fully biologically adult and yet still mentally and emotionally "kids."

As I've mentioned before, even though I don't approve of adults having sex with anyone under 18, I find it quite disturbing, Orwellian even, that we would call a consensual sex act between an adult and a post-pubescent mid or late teen "child rape" (which term connotes horrible evil). In a factual sense, this is not child rape; regardless of what "statutory rape" laws say, you cannot enact 2+2 = 5 into law. If we rather called adult/underaged teen sex, "improper sexual conduct with a minor," I think we would more soberly react to the crimes, and not become hysterical about it when we think it may be occuring.

The Founders Respond:

I've been questioning our Founders on their religious beliefs and they've responded. (Richard Brookhiser, I think, is responding.) I'm not going to keep this up for much longer. I don't want to be a troll on Mr. Brookhiser's site. I have way too much respect for him to do that.

Did George Washington say "So help me God?"

This article, sent by a reader, raises some doubts. The article also doubts that Washington kissed the Bible. If Washington did kiss the Bible it was because such is a Freemasonic ritual and goes towards demonstrating Washington's intimate relationship with that group.

I'd have to do more research before I come to a definite opinion on the matter.

Most "evidence" demonstrating Washington's Christian orthodoxy is simply myth. The closest there comes to an honest case for Washington's Christianity is Michael and Jana Novak's book. But even there, all the Novaks really conclusively prove is that Washington wasn't a strict Deist in the sense of believing in a cold, non-interventionist God as opposed to a warm, intervening Providence (hence Edwin Gaustad's describing Washington as a "Warm Deist"). But Jefferson, Franklin, and the other so called "Deists" likewise invoked a warm intervening Providence. So the Novaks offer no convincing proof that Washington's religious creed differed on the basics in any meaningful way from Jefferson's or Franklin's.

Webcam:

I just got a Logitech webcam, mainly to experiment with in the online courses that I teach. It would be nice to do some blog-webcasts, but I don't think blogger or wordpress are capable of supporting that, or if they are, only at a premium. Any ideas?

Anyway, here is a pic I snapped with the webcam.

Corvino on the Pope and Natural Law:

Check out this article by John Corvino finding the fatal flaw in the Catholic natural law theory on the morality of sex.

Instead, the Church's main arguments against homosexuality have been rooted in "natural law," and specifically the premise that sex must be open to procreation. Thus, all deliberately non-procreative sex is sin.

Consider for a moment the implications of this premise. Contraception is an obvious no-no, given the Church's position. So is masturbation. These facts are enough to make hypocrites of many Catholics who condemn homosexuality "because the Church says it's wrong."

Also, forbidden, though far less often discussed, is orgasmic non-coital sex between married heterosexual partners, such as oral sex, masturbation of one's spouse, or anal sex. (Such acts are permitted as foreplay, but never on their own.) Official Catholic doctrine permits no exceptions here. Imagine the case of a man injured in such a way that he can no longer pursue coital sex, but still enjoys performing oral sex on his wife for the intimacy it achieves between them. It would seem permissible (perhaps even selfless and admirable) for him to engage in such sex, but the Church says no.

Thus far, at least the Church is consistent in its views. (Stubborn, perhaps--even foolish--but consistent.) But there's one implication of the "openness to procreation" premise that the Church refuses to acknowledge. If sex must be open to procreation, then it should be wrong for sterile (or postmenopausal) heterosexual married partners to have sex. Imagine a woman whose ovaries and uterus have been removed for medical reasons. Clearly, her sexual acts will never be "open to the transmission of life" in any morally meaningful way. But the Church declines to condemn such acts.

Why the apparent inconsistency? Catholic natural law theorists answer that such acts can still be of "the reproductive kind." But it is difficult to make sense of this claim, except as a lame attempt to deny unpalatable conclusions that clearly follow from the Church's position. If a sexual act cannot result in procreation and the couple knows it, then how is the act "of the reproductive kind"?

Instead of starting with the presumption, as the Church does, that all sex is bad and must be justified by being procreative, we should instead presume all sexual acts between consenting adults are morally neutral or good and then come forth with practical reasons why the acts are either wrong or otherwise not acceptable. This isn't to say, "anything goes." To the contrary, many sexual acts between consenting adults are morally wrong or otherwise should be socially stigmatized. For instance, if the couple is not on birth control and are not "fit" to bring a child into the world, such a sex act ought not be socially accepted. Just like unprotected homosexual sex between untested parties.

In many ways, the Catholic position on sex is downright immoral and irresponsible. Even married couples can only handle so many children at once. Couples ought not bring more children into a family than they can responsibly handle. There are some couples, those on the right end of the fertility Bell Curve, who will literally have over a dozen children in a lifetime marriage. And for most couples, excluding the Bill Gates and Donald Trumps who could not only support all the children but hire as many nannies as needed to assist the wife, that's just a bad, irresponsible life-plan to say the least.

Too Funny:

Pat looks like he fits right in, eh?

But...:

Unlike Roy Moore, Judge Ulrich, to his credit, sided with the lesbian mother.

This is kind of strange. My last post featured Robert Ulrich, Chief Justice, Missouri Court Of Appeals, Western District, who seemed to be a Roy Moore in training.

So I decided to google his name and research his record and I found that he ruled over a child custody decision case which had facts nearly identical to one Roy Moore ruled over. Moore infamously wrote a concurring opinion in a child custody decision where the mother turned out to be a lesbian and Moore argued for a rule presumptively granting parental rights to the non-homosexual parent. He called homosexuality "abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature's God upon which this Nation and our laws are predicated," and further

"The State carries the power of the sword, that is, the power to prohibit conduct with physical penalties, such as confinement and even execution. It must use that power to prevent the subversion of children toward this lifestyle, to not encourage a criminal lifestyle."

As it turns out, Missouri had one of those "presumptively, the gay parent doesn't get the kids" rule, and Judge Ulrich wrote the decision overturning that precedent. He wrote "such an irrefutable presumption where a parent's homosexual conduct is, alone, determinative, is inherently inconsistent with the best interests of the child standard, which requires consideration of all factors relevant to the child's welfare."

Founders Blog:

Check out Richard Brookhiser's Blog on the Founding Fathers. I've already posed a question to John Adams.

One of the Worst Christian Nation Articles Yet:

No, not this article by Michelle Goldberg, which features a pretty accurate report on that element of the religious right which she deems "Christian Nationalism" (whom Andrew Sullivan would call "Christianists"). But rather this article by a Roy Moore in training, yes, a Judge -- Robert Ulrich, Chief Justice, Missouri Court Of Appeals, Western District. Ulrich's article relies on, you got it, David Barton's phony quotations, and otherwise distorts history by offering real quotations of our Founding Fathers badly taken out of context. [Note: There is no copyright date on Ulrich's article. I think it might be a few years old. But it features claims that are still being made by Christian Nationalists.]

Goldberg's article paints a scary picture of fundamentalists intent on "dominion." As I've noted before, the reason I spend much time debunking the revisionist history of Christian Nationalists is not because I am some Separation of Church and State absolutist like Michael Newdow, but rather to show these Christianists, like those featured in Goldberg's article, that they are mistaken if they believe they are reclaiming something they once owned.

History has shown (and with Islam especially still today shows) that religious passions in human nature can be dangerous, especially if the religionists believe they are fighting some kind of holy war for something that God decreed belongs to them.

Showing Christian Nationalists their historical errors, that indeed, they are operating contrary to the ideals of our Founding Fathers, I hope will palliate their passions in the culture war.

So let's examine some of the errors in the good judge's article. First, the judge reproduces David Barton's phony quotations which were never uttered by our Founding Fathers:

1) Patrick Henry:

It cannot be emphasized too strongly or too often that this great nation was founded, not by religionists, but by Christians, not on religions, but on the Gospel of Jesus Christ! For this very reason peoples of other faiths have been afforded asylum, prosperity, and freedom of worship here.

2) Thomas Jefferson:

The reason that Christianity is the best friend of government is because Christianity is the only religion that changes the heart.

3) George Washington:

It is impossible to rightly govern the world without God and the Bible.

4) James Madison:

The future and success of America is not in this Constitution but in the laws of God upon which this Constitution is founded.

5) Ben Franklin:

He who shall introduce into the public affairs the principles of a primitive Christianity, will change the face of the world.

In those cases where the judge quoted the Founders accurately, the quotations are grossly taken out of context.

For instance, John Adams's letter to Jefferson on June 28, 1813, where he said, "The general principles on which the Fathers achieved independence, were . . . the general principles of Christianity." Let's look at Adams's statement in context. Adams goes on to say:

Now I will avow, that I then believed, and now believe, that those general Principles of Christianity, are as eternal and immutable, as the Existence and Attributes of God; and that those Principles of Liberty, are as unalterable as human Nature and our terrestrial, mundane System. I could therefore safely say, consistently with all my then and present Information, that I believed they would never make Discoveries in contradiction to these general Principles. In favour of these general Principles in Phylosophy, Religion and Government, I could fill Sheets of quotations from Frederick of Prussia, from Hume, Gibbon, Bolingbroke, Reausseau and Voltaire, as well as Neuton and Locke: not to mention thousands of Divines and Philosophers of inferiour Fame.

Finding general principles of Christianity in Rousseau and Voltaire? Adams clearly means something different than what the Christian Nationalists would like his phrase to mean. Similarly, when Jefferson claimed to be "a disciple of the doctrines of Jesus" (something else the judge quoted), he did so in the context of denying the Trinity and the other central tenets of orthodox Christianity.

The article also refers to the misleading Lutz study which purports to show that our Founding Fathers quoted the Bible more than any other source. (When in reality, neither of the two founding documents -- the Declaration of Independence or the Constitution quote the Bible. And, nor do the Federalist Papers which explicate in detail the philosophy behind the Constitution and our Founding. If the Bible was so important to our Founding theory of government, we would expect to see it referenced in those sources, but we don't.)

Further, Ulrich refers to the Supreme Court's Holy Trinity case, which in its dicta declares that the US is a "Christian Nation." (In a future post, I'll explain where Justice Scalia absolutely savages the case. As I've explained before, the holding of Holy Trinity had nothing to do with whether America was founded as a "Christian Nation." That was not the issue the Court was charged with resolving, but was just an aside in the decision's dicta. According to Justice Scalia, the Court clearly was wrong in its holding as well and was a textbook case of poor jurisprudence.)

All of this wouldn't be surprising if it weren't coming from someone who is a judge who are supposed to possess rudimentary scholarly abilities; but then again Roy Moore was the Chief Judge of a state Supreme Court. I guess this is the price we pay for allowing some states to elect their judges.

John Adams Quotation of the Week:

On the Virgin Mary and the Trinity:

If I understand the Doctrine, it is, that if God the first second or third or all three together are united with or in a Man, the whole Animal becomes a God and his Mother is the Mother of God.

It grieves me: it shocks me to write in this stile upon a subject the most adorable that any finite Intelligence can contemplate or embrace: but if ever Mankind are to be superior to the Brutes, sacerdotal Impostures must be exposed.

John Adams to Francis van der Kemp, October 23, 1816, Adams Papers (microfilm), reel 122, Library of Congress.

It's interesting that Jefferson and Adams did not believe that the Trinity is a harmless irrationality, but a corrupting and dangerous irrationality. They were militant anti-Trinitarians.

Alan Wolfe on the Founding and Religion:

Alan Wolfe of Boston College briefly reviews three books on the Founding and religion for the New York Times. One of which he recommends, David L. Holmes's "Faiths of the Founding Fathers," I have already recommended. This book notes, as I long have, that the key Founding Fathers were not orthodox Trinitarian Christians, but rather somewhere between Deism and Unitarianism.

Another book Wolfe reviews, Jon Meacham's "American Gospel," I leafed through at Borders (and was about to buy it). Wolfe gives it a more lukewarm review. Based on what I read in it, I was impressed by how it accurately captured the rational middle ground in the debate and well understood the concept of the "civil religion." The secular left is wrong if they try to assert that our Founders intended no public expression of religion or otherwise worked from atheistic premises in Founding our civil order. The religious right is wrong when they declare that we are a "Christian Nation" or that the God who founds this nation's public institutions is necessarily the Biblical God. No, our public order rests on generic monotheism, where God's attributes are purposefully left vague, so as to be inclusive as possible of the variety of different faiths. The notion of a "Nature's God" could be some orthodox Biblical deity, or some radically heterodox Enlightenment Creator, and is actually an amorphous lowest common denominator between the two. As this article notes, "Even Wiccans might feel kinship with Jefferson's 'Nature's God.'" Previously, I've argued that even atheists should feel kinship with the notion of "Nature's God," if they take such as a metaphor for the ultimate non-negotiability of natural rights.

Finally, Wolfe reviews Peter R. Henriques's book on George Washington, "Realistic Visionary," which includes a chapter that accurately captures Washington's religious faith. Wolfe quotes from Henriques's book: "[I]f one defines 'Christian' as the evangelicals do . . . George Washington cannot be properly referred to as a Christian." Yes, based on my meticulous research of Washington's faith, if one lays out all of the evidence, pro and con, one is led to believe that Washington held to the same Enlightenment influenced "theistic rationalism" of Ben Franklin, Thomas Jefferson, James Madison, John Adams, and the other key Whig Founders. There is some mystery as to what Washington believed given that Washington kept his exact religious creed safely guarded. Which, given the context of the time -- orthodox Christianity had far more social and legal power over society; one was expected socially, to affirm the tenets of orthodox Christianity -- hiding in a religious closet (as Washington and Madison did) itself is strong evidence of possessing heterodox religious beliefs.

Also, Wolfe's article has other interesting things to say. Read it!

Who are the Real Christians?

There is an interesting back and forth going on between Ramesh Ponnuru and Andrew Sullivan. Both men define themselves as "Christians." Sullivan is a gay, cafeteria Catholic. Ponnuru is a doctrinaire Catholic. Sullivan takes on the theocrats/Christianists. Ponnuru falls into the Catholic theocon camp. I want to comment on one point of Ponnuru's criticism of Sullivan. Ramesh writes:

Note also that Sullivan has recently taken to asserting that these "Christianists" are not "real" Christians, or religious believers. (See, for example, here.) I have never said, and would never say, anything similar about Sullivan. I would say that he is a Christian who is seriously misguided about some things. I would also say that he is a voice for intolerance in our public life; and one who deludes himself that he is the opposite.

It seems that Sullivan is turning the rhetoric of Christianists against them, giving them a taste of their own medicine. Ponnuru, as an orthodox believer, is, I suppose, being conciliatory in not challenging Sullivan's status as a Christian. But many many orthodox believers/fundamentalists would absolutely challenge Sullivan's calling himself a "Christian," with a big, "no you aren't." They, the fundamentalist orthodox believers who think the Bible is the absolute word of God, are the real Christians and the others aren't. It's Truth in black and white. Perhaps Ponnuru is conciliatory because he is a Catholic in predominately Protestant nation and until recently and even today (see Bob Jones University) some Protestant Christianists refuse to recognize Catholics as "real Christians."

What most people don't realize is that Sullivan's rhetorical tactic exactly parallels John Adams's. Yes, a similar issue (who is a "real Christian"?) was debated during the Founding. No, homosexuality, abortion, etc., were not the subject of debate; rather other issues of orthodoxy were -- things like religious liberty, the divinity of Jesus, eternal damnation, miracles and prophesies in Scripture which seemed to contradict the laws of nature and science. Both Jefferson and Adams called themselves "Christians," but took personal theological positions which bucked the prevailing orthodoxy of the day. Both Jefferson and Adams were theological Unitarians, disbelieved in Eternal Damnation, disbelieved the inerrancy of Scripture, etc. In short, they believed things which would cause the Christianists of the day (the Trinitarian-orthodox Christians) to say: "You aren't real Christians; you are infidels." (Interestingly, Jefferson's and Adams's most vehement criticisms of orthodox Christianity were taken from their private correspondence. The Founding-era Christianists already started questioning Jefferson's orthodoxy and calling him an infidel for some of the things he wrote in Notes on the State of Virginia which were far tamer than what we see in his letters. Adams's Federalist clergy supporters, in his election against Jefferson, would probably have flipped out had they known Adams's theological views were every bit as radical as Jefferson's.)

So how did Adams respond to the notion that he wasn't a "real Christian"? In a letter to Jefferson, discussing these very issues of orthodoxy, Adams wrote: "The Calvinist, the Athanasian divines ... will say I am no Christian. I say they are no Christians, and there the account is balanced."

Note, Calvinist Christians and Roman Catholics were probably the two groups of orthodox believers whom Jefferson and Adams most criticized. They were not "real Christians." Both of those religions also had terrible track records on religious liberty/persecution issues. And religious liberty was one of the most important concerns to Jefferson, Adams, and most of the other key Founders. A big effort was made by many during the Founding era to reconcile Christianity with religious liberty and toleration. Locke was revered because he did so; Calvin and the Roman Catholic Clerics were reviled because they did not.

So, right off the bat, if your understanding of Christianity didn't embrace religious liberty, you weren't a "real Christian," according to Jefferson and Adams. In today's day and age, basic issues of religious liberty are settled in the West (though not in Islam). Sullivan et al. are trying to use a similar rhetorical flourish on broader issues of tolerance: Real Christians are not intolerant firebrand fundamentalists, but rather kind-hearted tolerant folks who, in Sullivan's words, "have no problem living next to an atheist or a gay couple or a single mother or people whose views on the meaning of life are utterly alien to them--and respecting their neighbors' choices. That doesn't threaten their faith. Sometimes the contrast helps them understand their own faith better."

Many today use a similar rhetorical ploy on Islam. Islam, properly understood, is a religion of peace (or so they say). And Bin Laden et al. pervert what at its heart is a noble creed. We are projecting our desires onto Christianity and Islam, calling "real Christians" or "real Islam" that which we desire it to be (that which is most compatible with modern liberal cosmopolitan societies). A few months ago, writing in the New York times, Mark Lilla nailed it when he wrote that our Enlightenment imbibed Founders "made two wagers. The first was that religious sects, if they were guaranteed liberty, would grow attached to liberal democracy and obey its norms. The second was that entering the public square would liberalize them doctrinally, that they would become less credulous and dogmatic, more sober and rational."

Yes, Jefferson and Adams desired that Christianity liberalize doctrinally, and become more sober and rational. The problem, though, is that some of our, and some of Jefferson's and Adams's, prescriptions for "doctrinal liberalization" strike at the heart of what some people consider their faith to be. Religious liberty is one thing for Christianity. Jefferson and Adams positively desired that Christianity would come to reject the notion that Jesus was God.

In today's world, the hard questions include, is Islam really compatible with the notion of religious liberty and a pluralistic society? I hope to God it is, but I'm not confident. Is traditional orthodox Christianity compatible with gay equality (social acceptance of and state recognition of gay relationships)? Again I hope to find some understanding where fundamentalists can accept gay equality, but parts of the Bible, and longstanding tradition in those circles clearly condemn homosexual relationships.

But, in any event, issues like "who is a real Christian?" and what kind of religion works best in liberal societies, are not new and have a special connection to our Founding.

Is This Right?

Andrew Sullivan links to a demographic study on different racial/ethnic groups in America. Sullivan seems to be reading the pie charts correctly, but I'm almost certain they are mistaken. Though I haven't researched this in detail, I am almost certain that the "Black" and "Asian" figures for population younger than five have been transposed.

Texas Freedom Network on David Barton:

Check out this site which links to a pdf file by the Texas Freedom Network discussing 1) just how much of a huckster and intellectual fraud David Barton is, and 2) sadly his malign influence on the GOP in general and the Texas GOP in particular. (As the article notes, Barton has served as the vice chairman of the Texas Republican Party since 1997.)

See Chapter 4: David Barton: Amateur Historian, Professional Propagandist.

When reviewing Barton's work, however, it is hard to avoid the conclusion that he is a pseudointellectual fraud whose twisted interpretations of history are little more than propaganda that often dances on the edge between fact and fiction. In the first place, information about Barton's academic career is a bit fuzzy. His biography on the WallBuilders Web site (as of February 2006) notes that he holds a Bachelor of Arts (the field is not specified) from Oral Roberts University and an Honorary Doctorate of Letters from Pensacola Christian College. Apparently, an earlier version of the biography noted that Barton's degree was in religious education and that he taught math and science after college.44 Nowhere does he note any formal academic training in historical research....

One problem is Barton's tendency to invent causal links where actual research shows none. Barton claims, for example, that the mandate to write his first book, America: To Pray Or Not To Pray? (1988) came directly from God. God, he says, asked him to research a connection between the removal of state-mandated prayer in public schools by the U.S. Supreme Court in 1962 and 1963 and the drop in SAT scores.47 Claiming to find such a cause-effect relationship, Barton proceeded to blame decades of social problems on an overactive judiciary. "We could correlate that when the court made certain decisions on values, we would see subsequent corresponding changes in societal indicators," Barton wrote in an article for a Christian Coalition newsletter. "Like when you took the Ten Commandments out, violent crime went up." 48 That astonishing leap of logic finds no support outside social conservative circles.

The article then goes on to discuss Barton's phony quotations (which Ed Brayton and I have discussed many times on our blogs) from our Founding Fathers which attempt to demonstrate that America was founded to be a "Christian Nation."

Finally, the article also discusses (something which many of us were previously unaware) Barton's blatant distorting of black/civil rights history for political purposes. One can understand why conservative Christian Republicans may want to reach out to blacks who vote disproportionately Democratic, but yet who tend to be more religious and have more of a socially conservative worldview than other social groups. However, Barton goes about doing so in his typically dishonest, huckster way.

Even Barton’s grasp of more recent history is suspect. At a time when the Republican Party is seeking to attract more African-American voters, Barton frequently writes or speaks about the role of the Republican and Democratic parties during the civil rights struggle. He regularly paints the Democratic Party as the party of slavery and segregation and notes the Republican Party’s early opposition to slavery and support of voting and civil rights for African Americans. Some historians might argue that Barton’s storyline has kernels of truth – as far as it goes.

But Barton’s story is simplistic and misleading. In a 2003 WallBuilder report entitled “A History of Black Voting Rights,” Barton notes that Strom Thurmond, a notoriously segregationist U.S. senator from South Carolina, switched from the Democratic to the Republican Party after a “change of heart on civil rights” in 1964.54 That’s nonsense. Thurmond was among the first of legions of southern white conservatives who began leaving the Democratic Party in the mid-1960s. Most switched their support to the GOP as Democrats finally began to overcome southern Congressional opposition to civil rights legislation. Indeed, Barton neglects to include any discussion of successful efforts by the Republican presidential campaigns of Barry Goldwater (1964) and Richard Nixon (1968) to court southern whites anxious about integration and the civil rights movement.

Moreover, Barton’s attempts to woo African-American voters are ironic in light of his past associations with white supremacist groups. In 1991 Barton spoke at two events sponsored by groups that have been tied to the racist “Christian Identity” movement. Christian Identity doctrine espouses white supremacy and is virulently anti-Semitic and anti-gay. The leader of Scriptures for America, a Colorado group that hosted Barton, has even called for executing homosexuals. Barton later claimed that he had not known when he was invited to speak that the two groups were “part of a Nazi movement.” 55

How anyone can take Barton seriously is beyond me. As I've noted before, when I refute his nonsense, I feel like I am knocking down a strawman. Yet, millions of people take this strawman seriously and believe his twaddle. And that is a shame.

What Slavery in Massachusetts can Teach us about Constitutional Abstraction:

Someone named Connell just left this comment on a post from a few months ago on the abolition of slavery in Massachusetts and whether to credit the democratic process or an activist court for the outcome.

Jonathan:

Unfortunately that website is incorrect. Massachusetts' state constitution, passed in 1780, declared that all men are "born free and equal". This lead Quork (actually Quaku) Walker to sue his master Nathaniel Jennison for his freedom in 1781. The Massachusetts State Supreme Court declared him free in 1783, based on the wording of the three year old state constitution. (The website incorrectly indicates that he won his freedom first and then Mass. passed its constitution. It was just the opposite.)

A great reference is Hon. Peter W. Agnes, Jr., "The Quork Walker Cases and the Abolition of Slavery in Massachusetts: A Reflection of Popular Sentiment or an Expression of Constitutional Law?" vol 36 Boston Bar Journal No. 2 (March/April, 1992)

Basically, yes the Mass. court did abolish slavery without a democratic vote, however much of the courtroom debate acknowledged that "popular sentiment" in Massachusetts had clearly sided on abolishing slavery and that weighed heavily in favor of Mr. Walker. So it's not that clearly a case of "judicial activism" sidestepping democratic process. Either way makes no difference to me - they did the right thing in the long run and that's what is important.

Connell (a radical Homo)
Santa Cruz

One interesting thing I find (from what I know) of the facts in the case is that they illustrate how abstracting from more general constitutional (or philosophical) principles can lead to results, entirely consistent with (and arguably demanded by) those principles, but not necessarily anticipated or expected by the Framers of those principles, and indeed, flat out inconsistent with longstanding tradition and practice.

Notice that provision in Massachusetts's constitution doesn't say, "Slavery shall be abolished in Massachusetts," like the Federal Constitution's 13th Amendment, but rather that all men are "born free and equal," which is exactly what the Declaration of Independence (and the Enlightenment philosophy which founds this nation) declares.

If longstanding practice and tradition, especially tradition that continues well after the texts in question have been framed and ratified, are dispositive, then the interpretation of the original meaning of the text changes. Indeed, it's been argued by some that the Declaration's assertion that "All men are created equal" really meant, because, if you look at practice it had to mean, all propertied white Protestant Males, when a broader, more generous reading of the text could mean all human beings, whatever gender, whatever race, and whatever religion.

Dynes on Boswell:

Let me turn your attention to Wayne Dynes's blog (another site which I will permalink once I reboot my template). Dynes's blog should get more attention by the blogsphere than it does, as there is a treasure trove of historical information to be found in there.

Dynes is the editor of The Encyclopedia of Homosexuality and a retired professor of art history at Hunter College, City University of New York. He is also well known for criticizing the work of the late historian John Boswell of Yale. Back when the progay side was cheering Boswell's argument for a progay reading of the Bible, Dynes was one of the few prominent scholarly voices on the progay side (Boswell, of course, had lots of antigay critics) cautioning against Bowsell's revisionist view of Christianity and homosexuality.

And Wayne has new post on the matter. Check it out.

Though I haven't read Boswell's book, I am aware of its arguments. My own thoughts are, first, Boswell is right on the tale of Sodom and Gomorrah. From a plain text, literal reading of the tale, homosexuality is only a peripheral issue. The main crime of the people of those towns was that they attempted to brutally gang rape strangers. True, God had decided to destroy the town before that particular act. But that incident with the two angels was descriptive of the kind of evil people that inhabited those towns: The kind of brutally inhospitable people who would gang rape strangers. Thus, the tale, on its face, appears to have nothing to do with voluntarily chosen and consensual homosexual acts. Yet, Leviticus still clearly condemns homosexual acts. Likewise so does Paul in the New Testament.

My own reply is, especially with Leviticus, so what? The Bible, especially the Old Testament, says a lot very strange things. So unless one believes that the book is the inerrant word of God, which I don't (and even most self-described Christians, I'd imagine, don't believe that), Leviticus and other passages of the Bible can simply be written off as part of the, to use Thomas Jefferson's word, "dunghill" of nonsensical dogma contained in almost all holy books. The antigay passages of the Bible certainly are not part of the, again to use Jefferson's term, "diamonds" of Truth and Wisdom that are scattered all over the Bible.

Judicial Nullification v. Judicial Supremacy...or, Sowell doesn't get it:

And, in some respect, neither does Justice Thomas. What is it? That it's legislatures who are the prime threat to liberty; it's legislatures, NOT THE COURTS, who are most out of control branch of government and need to be reigned in.

Let me say off the bat, I have tremendous respect for both Thomas Sowell and Clarence Thomas. Regarding Sowell, a friend on a listserv once remarked that he is at his best when doing scholarly work, (and indeed, Sowell has produced a number of must read works of scholarship), but as an op-ed columnist, he comes off as an old curmudgeon with scores to settle. I agree. But his columns are still worth reading.

As regards Justice Thomas, some people who read my blogs think I'm a leftist, but if I were to match up my constitutional philosophy with those on the Supreme Court, I'd say, I'm somewhere between Justice Thomas and Justice Kennedy.

On to the topic of this discussion, Thomas Sowell has an article on a new book out about Justice Thomas.

Part of Thomas's appeal, argues Sowell, is that he resists "judicial activism" or "legislating from the bench." Sowell then goes on to describe what is wrong with legislating from the bench.

When legislators change a law, that change is announced, so that everyone knows what is and is not illegal from now on. But when judges change the law by reinterpreting it, based on the "evolving standards" of a "living constitution," nobody knows that they have violated the law until after the fact, when it is too late.

Retrospective laws are expressly forbidden by the constitution. But the "evolving standards" of a "living constitution" amount to retrospective laws by another name.

In one case, Justice Thomas said that if "I were a member of the Texas legislature," he would have voted against the law that the U.S. Supreme Court was examining. But, as a member of that court, his duty was to vote on the constitutionality of the law, whether he agreed with it or not -- and he voted that the law was constitutional.

The problem with Sowell's analysis is that much of what is called "judicial activism" looks nothing like what he's just described. In particular his assertion that "[w]hen legislators change a law, that change is announced, so that everyone knows what is and is not illegal from now on." This is one of the most laughable statements I think I've seen in a long time, shocking to see it come from the mouth of someone as intelligent as Sowell and a man with libertarian bona fides to boot. Just go to Jim Babka's and Perry Willis's Downsize DC (I promise when I reboot my template to give them a permalink) to see what a joke it is to assert that "everyone knows" what the content of the legislative law is.

Much of what is termed "judicial activism" is simply the Court exercising its judicial review power to nullify a piece of legislation, usually a piece of legislation which impinges on liberty. Is that really "legislating"? In my eyes, judicial review is the very opposite of legislating. Legislatures, by their very nature, pass laws. Nullification is negating, or taking away, legislation. It's reverse legislating.

Regarding that Texas law to which Sowell refers, it was the sodomy law in Lawrence. A problem with the "if I were a member of the Texas legislature, I would have voted against the law," sentiment is that, by the very nature of the legislative process, it's quite easy to add a plethora of new (and mostly useless) laws every year to the record, but almost impossible to repeal old ones.

Finally, regarding the "nobody knows that they have violated the law until after the fact" assertion, Sowell's argument doesn't fit well to circumstances where courts exercise their judicial nullification power. Again, legislating, in my mind, is passing a command and control like rule which binds the people like "you can't drive over 55 mph." If, for instance, you were driving 60 in a 65mph zone and some court, after the fact, found you guilty of breaking the 55mph speed limit, then Sowell's argument would make sense.

Let's actually see what goes on with judicial nullification, using Lawrence as an example. A court says, perhaps after the fact, "sorry government, you can't do that." Government may respond, "well that's unfair, we were relying on our ability to make laws which forbid the sexual conduct of consenting adults behind closed doors, and now, after the fact you say we can't do this?" To which I respond with a big "BOO HOO." That's not the kind of reliance -- the reliance of majoritarian mob-rule to use the legislative process to tyrannize other segments of the population -- about which we should be concerned. Certainly not in a nation where liberty in its broad and general sense is an unalienable right that individuals possess prior to majority rule. This is why our Founders refused to enumerate the rights of man; because the rights of man are so numerous that they are unenumerable.

To quote James Wilson, a member of the Constitutional Convention: "[A] complete enumeration of rights appertaining to the people as men and citizens....Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing." Supreme Court Justice James Iredell put it this way: "Let any one make what collection or enumeration of rights as he pleases, I will immediately mention twenty or thirty more rights not contained in it."

I must note, though, that courts aren't entirely innocent. They have, in the past, legislated from the bench. But when they do this, they are doing more than simply exercising judicial review and striking down a piece of legislation. This relates to the distinction between judicial review on the one hand and judicial supremacy on the other. Judicial supremacy is when the court exercises a command and control power, ordering other branches to government, or the people, to affirmative enact a particular policy or otherwise behave in a particular way. Cass Sunstein, as I understand, desires courts to behave in this manner by constitutionalizing the New Deal.

There may be some kind of relation between the principle of equality and Judicial Supremacy (whereas there clearly is a relation between judicial nullification and liberty). Although I find Equality to be a laudable and foundational ideal (along with Liberty, a twin pillar of classical liberalism), keep in mind that egalitarianism or "leveling" can result (because it has resulted) in tyranny. Therefore, Liberty must come before Equality and Property rights must also be part of the liberal ideal.

In dealing with issues of constitutional equality, courts have often jumped from judicial nullification (which is almost always a good thing), to judicial supremacy (where the court exercises a command and control quasi legislative power). I think this is what the great liberal historian Gordon Wood refers to in Justice's Scalia's book, A Matter of Interpretation, commenting on Justice Scalia's jurisprudential thesis, when he writes:

"[M]odern judges have come to exercise a degree of authority over our lives that is unparalleled among modern Western nations. During the past generation judges have taken to running school systems and prisons. For a decade or more one federal judge even took upon himself to monitor all faculty appointments at my university -- for the sake of justice, of course." p. 49.

This is a vastly different thing than simply striking down a law in the name of liberty and doing nothing else.

Finally, for a good explanation on the distinction between judicial nullification and judicial supremacy, see Randy Barnett's Restoring the Lost Constitution, pp. 143-7.

Republican Checks in Liberal Democracies:

See D. Stephen Heersink's comment he left on my last post which deals with republican institutions in our liberal democracy, the United States.

Interesting observations as usual. The country is wrestling with many of these ideas, and obviously not coming to the same conclusions.

Yes, the U.S. is a democratic republic for precisely the reasons given. Plato in his Republic identifies democracy as the second-worst form of government after tyrany for the reason of mob rule.

But our republican institutions were finalized by the democratic process. The Constitution, after all, had to be ratified by the States. Whether the ratification came by plebicite or by legislative approval, clearly each State had to approve the final document that established the republican form of governance.

Only a lawyer would see the three levels of government as hierarchical. I suggest that they be viewed synergistically. Each has a "veto" over the other. For example, the Congress can impeach the Justices, so who really has the final word?

You cite Kelo, certainly the most incredulously decided case before the Court. The reason it took so many by surprise is that the Court did not take the Constitution as final or the Justices as final arbiters. In fact, Stevens made the point that he thought the legislature(s) should have the final say, which is why he voted as he did. But the Constitution does not allow for legislatures to trump the Constitution, so how could that have been Stevens' reasoning? If the Court is the final arbiter of consitutionality, why in this case did it defer to the legislature(s)? The amendment does not give legislatures that power, and the Court defering to that institution "closest to the people" abdicated its responsibility to affirm what the words actually state. That's what makes Kelo so incredible!

Ultimately, the democratic motif must prevail, even if it is hand-tied by republican institutions to avoid mob rule. People already feel their vote does not matter, but if they felt they could not change things, they would resort to violence and revolution, rather than the ballot box. Now, no longer secure that the Constitution is the final say (i.e., Kelo), people are genuinely anxious that our system of balances is truly failing. Each of the Justices who voted for Kelo should at least have been impeached. Congress should have insisted that the Court, of all the branches of government, enforce what the Constitution clearly states. And the Constitution, not legislatures, are supposed to be the final say on eminent domain.

People have come to appreciate divided government for the same reasons the Founders appreciated the three branches. I strongly suspect the House to change parties at midterm elections, precisely because people are fed up with Republican rule. The people's instincts are clearly in the right place, as we are careening way off course under Republican rule.

Still, people's confidence in their form of governance could not be lower. The Referendum process, the most democratic of all our institutions, has been thwarted by the Courts more often than not. And the Courts' justifications are often without constitutional reasons. They are not arbitrating Constitutions, but arbitrating policy. Californians have just about had it, because so many referenda have been dismissed by its Courts. The Rose Bird Court may not be the only one to be ejected.

Californians can, and have, nullified justices; Congress can, but rarely, has impeached justices. When Courts can't arbitrate the obvious, and if the people did not have recourse, either through nullification or impeachment, the system would break. That either recourse is available speaks against your hierarchical claim, and that the people ultimately decide. We certainly have put up obstacles to mob rule, but the valves are there in case they are needed, so that the final arbiter is not the Court, but the people.

Breyer at Princeton:

On Sunday, my Dad and I saw Justice Stephen Breyer speak with Robbie George at Princeton University at an event sponsored by George's James Madison Program (two other University groups co-sponsored the event).

The event was great. Breyer was there to discuss his new book, Active Liberty. We sat over to the side in the front row, right in front of former Attorney General Nicholas Katzenbach, who had in an earlier era hired Breyer to work in the federal government (so every time Breyer made eye contact with his old boss, he had to look through me).

On the substance of his speech, Breyer noted that the Constitution ultimately establishes a "democracy," such that the concept of "democracy" is the lens through which the document should be interpreted and understood. Now, some on the political right (tending to be on the cranky right) note that the US is not a democracy, but rather a republic, and that the term "democracy" isn't even mentioned in the Constitution. Akhil Amar in his book on the Constitution debunks this as a canard. The US is a democracy and the Declaration of Independence and the Constitution establish us as so. We are, however, a particular type of democracy. We are a representative, as opposed to direct, democracy. And we are a liberal democracy (meaning individuals hold rights that are prior to majority rule). The word democracy, in this broad sense, simply means elections and voting. The United States is a democratic constitutional republic.

Many conservatives like Justice Scalia and Robert George wisely shy away from the notion that the concept of "democracy" was antithetical to our Founding Fathers because they likely see how such a notion could support so called "judicial activism." Scalia et al. after all, are notable for endorsing a theory of judicial restraint, where unless a particular specific right is found within the text of the Constitution (or deeply embedded in our traditions), democratic legislatures, ultimately expressing the will of the people through duly elected representatives, should decide nearly all political matters, including issues of substantive rights and limits of government action.

(WorldnetDailey are typical of those on the cranky right who would at once decry that the US is not a democracy because democracy means mob rule, the word democracy is not found within the Constitution, but then simultaneously criticize "activist judges" for striking down legislation because such action doesn't respect the democratic will of the people. I don't think those folks are savvy enough to realize their contradiction of sentiment.)

But all of this brings to mind my major critic of Breyer's theory, which is also my major critic of Scalia's theory (which also identifies a kernel of Truth in the cranky right's notion that "we are not a democracy, but a republic"): Both Scalia and Breyer give the concept of "democracy," and respect for the actions of legislatures, far too much accord. Legislatures, and not courts or even the executive, are the greatest threat to liberty. Our founders did realize this; they did fear mob rule. So when it came time to establishing our "democracy," they built in republican checks. Because, God knows, "democracy" needs checks, or else we would have mob rule. One of those checks is that laws are passed by representatives, not by the people themselves (and those representatives, tending to be more elite than the people, may not always do the people's bidding). Another check is that individual rights are antecedent to majority rule (the "liberal" qualifier, in "liberal democracy").

Giving a court of nine the final say over individual rights also, I think, better safeguards such rights. This is something that Breyer also mentioned. But it is not consistent with "democratic" theory, which sees democracy as an end in itself as opposed to a means to an end (protecting individual rights).

Breyer mentioned Justice Jackson's famous saying, "We are not final because we are infallible, but we are infallible only because we are final," which means that someone has to have the last word, and for a variety of reasons it makes sense that it's the Court. Note: This doesn't mean other branches of government don't have a say; they just don't get the last word. Congress has a say over interpreting the Constitution: They are supposed to know their constitutional limits and refrain from passing unconstitutional laws. Likewise, the executive has the option of vetoing any law with which he disagrees on policy grounds; but by taking an oath to uphold the Constitution, the executive is duty bound to veto laws which he thinks are unconstitutional. Finally, if such a law makes it to stage three, the courts get to exercise judicial review. If the legislatures had the final say, we'd never get to stage three. The more stages a particular piece of legislation must go through, testing it for constitutionality, the better to safeguard against the all too common error of unconstitutional legislative actions. If legislatures have the final say, then what's to stop them from enacting unconstitutional laws? The biggest problem, crisis indeed, of modern government is judicial restraint, as exemplified by the Kelo case. Kelo involved a court letting stand a tyrannical and unconstitutional action of a legislature when it should have actively struck it down.

Those who decry "judicial activism" and think that we are being ruled by courts because judges like to strike down laws while "discovering" new rights can't see the forest for the trees. It's the legislatures stupid, who pose the greatest threat to liberty.