Claremont’s Bizarre Analogy:

Sandefur has an excellent refutation of Thomas Krannawitter’s bizarre analogy between homosexuality and slavery. Claremont is at its most bizarre when discussing homosexuality in particular and generally at its weakest (in terms of making coherent arguments, consistent with the enlightenment liberalism in which they purport to operate) when it discusses social issues in general.

Let me make an observation regarding argumentation and using extreme examples like slavery, something I’ve noticed while debating various issues over the past few years: When we bring up examples and comparisions, we may be doing it in two different ways: 1) we may be making an equivalence between the two things that we are discussing; or 2) we may simply be trying to demonstrate that we can’t rely on principle X to support policy Y, because principle X can be used to support the unsupportable policy Z. And often what it is that we are criticizing—policy Y—is in no way equivalent to the unsupportable example—policy Z. For instance, let’s say that the majority of people support “gun control” (our policy Y). That "the majority of the people support it" is our principle X. We could argue, well, a majority of the population supported slavery (our unsupportable policy Z). That’s a fair point.

We are not drawing an equivalence between slavery and gun control, rather, we are simply saying, that the majority supports Y cannot justify Y as a moral or desirable policy because the REASON we are offering in support of Y could also support slavery. It's the REASON of "the majority supports it" that we are truly criticizing, not necessarily the underlying policy.

Or take tradition. Slavery has been vetted not just by longstanding tradition in this culture, but practically all cultures around the world. What should that tell us? Tradition, even universal cross cultural tradition, in and of itself cannot justify anything (which is NOT to say that tradition has no value in and of itself, just that it cannot justify anything). So the proponents of same-sex marriage are often confronted with the argument: Cross-cultural tradition has always found marriage to be male and female (but because the practice of polygamy is so widespread, cross cultural tradition has NOT always defined it as one man/ one woman). So it’s a fair argument for proponents of same-sex marriage to note, “slavery was once justified by tradition, therefore the tradition of barring same-sex marriage does not justify that bar.” Again, this is NOT to make an equivalence between the bar on same-sex marriage and the practice slavery, but rather to point out that because tradition vetted slavery, tradition in and of itself cannot be used to justify a position against or in favor of Y, no matter what Y is.

Now even in lieu of what I’ve just written, when confronted with such an extreme example as slavery, it strikes many of us as if an equivalence were being made anyway, even though that's not what was intended. Try using such an example in your next argument and I'll bet over one-half of your respondents will take umbrage acting as though you have made an equivalence between slavery and Y, even when that was clearly not intended.

Now back to Claremont: The problem there is that they clearly DO make an equivalence between slavery and homosexuality. That’s what’s so bizarre about Krannawitter’s and ultimately Harry V. Jaffa’s argument that homosexuality is immoral. Here is Jaffa on this point:

What Mohr says here about morality being independent of opinion is common ground between us. He and I agree that "slavery would be wrong even if nearly everyone liked it." What he fails to see is that homosexuality is equally wrong [my italics]— no matter how many say they like it. Slavery is against nature, because it treats human beings like subhuman chattel. Sodomy is against nature, since it treats men as if they were women.

Later I will have more to say on Jaffa’s erroneous naturalistic conclusions—but right off the bat, any view that sees homosexuality as morally equivalent to the practice of slavery should strike us all as self-evidently absurd.

Bestiality and Sexual Biology:

Now let me tackle this issue of including “Bestiality” in the parade of horribles that gay marriage might lead to.

More from Justin Katz’s response:

As Jon had already relied upon in a response to Ben, we still consider the difference between humans and beasts "profound," so — without intermediary steps — the leap from interracial to interspecies is too long to be plausible. However, to include homosexuals in the same category as heterosexuals, one must argue that the totality of gay sex is no different from the totality of heterosexual sex. I find the necessary level of equivalence for this comparison to be laughable, but those who would make it must illustrate why one form of non-heterosexual-vaginal sex is significantly different from another — not only in theory, but in the terms in which homosexuality is actually being "normalized" (e.g., with reference to "choice," "consent," and "privacy").

At the outset, we should all be able to recognize that there is a natural distinction between Man & Beast (as well as between Man & God, if God exists).  And there is also a natural distinction between Male & Female.  But contrary to the claims of Harry Jaffa (in fact, it is the central flaw in his natural law argument against homosexuality), the distinction between Man & Beast is far more profound than the distinction between Male & Female (expect a much longer post on this on my blog in the future). 

We think nothing about slaughtering and enslaving animals, eating them, wearing them on our bodies—but never dare do this to humans.  That tells us something about the profundity about the distinction between Man & Beast.  Yet, when the law or even private action makes a distinctions between men and women, the Civil Rights Act of 1964 and the 14th Amendment’s prohibition on gender discrimination automatically raises suspicion at such distinctions.

That’s not to say that gender distinctions are the same as racial distinctions.  Because there are real differences between men & women, the law allows for such distinctions.  For instance, we allow for segregated gender bathrooms, but not race.  Constitutional law holds that gender distinctions get “intermediate scrutiny” while race gets “strict.”  Gender can be a Bona Fide Occupational Qualification (thus a permissible basis for job discrimination), while race is never a legal BFOQ.  But these are considered “exceptions to the rule.” 

Regarding, man v. beast, there is no rule that we are dealing with equivalents in any.   There is no way from a legal perspective we could “slip” from same-sex marriages to human-animal ones.  Marriage is a contract and animals never have had the ability to contract in this nation.  Neither do they file tax returns.  As John Corvino says in this article (quoting a friend) “Marry your toaster if you like, but please don't try to file a joint tax return with it.”  Ditto for animals. 

I understand Justin’s objections that there is a distinction between hetero and homo sex—clearly that heteros can procreate and homos can’t means something.  But what it does not mean is that we should “group” homo and bestial sex together.  In other words, even though there is some logical distance between hetero procreative sex and homo sex, there is far more distance between homo sex and bestial sex, and profoundly so.  I think in an earlier post I used a fruit analogy.  There is logical distance between an orange and a lemon—but a far greater distance between the both of them on the one hand and “crabgrass” on the other.  In other words if we have three relationships:  a normal hetero, homo, and bestial, and we needed to ask which should be grouped together, the obvious choice in my eyes would be to group the hetero & homo together, just as I would group the orange & lemon together.   

Finally I find Justin’s Catholic/Thomistic view of sex to be highly problematic.  I don’t like the way it reduces human beings to biology, procreative biology at that.  What makes us human is our minds (our souls if you will), not our biology.  Even though there are biological differences between homo and hetero sex, in the non-biological way that relationships occur, there is so much of an equivalence between the two (and even regarding the physical ways in which we have sex, there is far more common ground between homos and heteros than what sets us apart).  I only think of Plato’s metaphor of human beings having complementary set of genitals and being split in half, longing for our other half.  But in some cases, both genitals were male. 

But let’s stick with the biological for now.  Justin writes: “but those who would [argue for the legitimacy of homosexual relations] must illustrate why one form of non-heterosexual-vaginal sex is significantly different from another.” 

Okay let’s make a list of them:  we would have not only homosexual and bestial sex, but also heterosexual oral and anal sex, mutual masturbation, solo masturbation, and arguably any other *things* that heteros do with one another that doesn’t involve, “penis-vagina” sex.  And what is so special about this form of sex anyway?  Only one thing I can think of—that it’s “procreative.”  Turn off the procreative button and penis/vagina just become erroneous zones—just like breast, buttocks, anus, mouths, lips, tongues—practically the whole rest of the human body.  So I’d argue that we’d have to throw in heterosexual contraceptive sex on my side as well.  And as Andrew Sullivan (after Mark Jordan) has noted in his article “We are all Sodomites Now” all of these things have been termed “sodomy” by the Catholic Church.  Do you really want to make the case that activities so normalized as heterosexual oral sex and contraceptive sex are equivalent to bestiality because all separate sex from its procreative teleology?

Gay Marriage, Justin Katz, & Slippery Slopes:

Let me respond to Justin Katz’s post that was a response directed at me.

Jon Rowe writes:

[Polygamy, incest, bestiality,] & Homosexuality each wholly distinguishable phenomenon. The only thing they have in common is being frowned on by tradition. But equally has interracial couplings. Thus, homosexuality is no MORE logically related to these things than are interracial couplings. The bottom line of my point is examine each on a case by case basis.

There are various ways to argue against this point, but most relevant to the discussion, I'd say, is that there's an extra step required for same-sex marriage to follow interracial sex and marriage. To allow such activities for couples of differing race, all that was required was to assert that there was no significant difference between the races. Self evidently, therefore, there is no significant difference between the type of sex or the form of marriage indicated.

The same is not true for homosexual couples. In their case, it is patently absurd to argue that there is no significant difference between the sexes (although some try to argue just that). The equivalence that must be added to the mix is between the types of sex. And therein lies the step too far.

But here is the problem for Justin’s “Slippery Slope” side: He has just moved from, “slippery slope to P, I, & B” to “how homosexual marriages will affect society based on the differences between hetero and homo sex.” These are two distinct issues. Leave aside bestiality for a moment. Say we have a marriage between one man and more than one woman that has only heterosexual sex (common for of polygamy), or a marriage between a brother and a sister…as long as procreative vaginal sex is involved in both circumstances, we could also say that “there is no significant difference between the type of sex.” Regarding “form of marriage,” a brother and sister marriage also does not violate the one man/one woman paradigm. Under the same slippery slope logic, we could argue, “recognize interracial marriage today, and you’ll have incestuous ones tomorrow.”

The point about the slippery slope is that it is a logical fallacy—that is we can always ask, “if we apply the same rule to another circumstance, how do we draw the line here and not there?” with every single policy, even the good ones that we all support. But the line has to be drawn somewhere—that’s why I argue, “examine each on a case by case basis.”

For instance, let’s say that a federal court recognizes same-sex marriage and explicitly relies on the Loving case as authority. Back when Loving was decided, the anti-miscegenationists raised the same slippery slope fears. Once a federal court uses Loving to support same-sex marriage, the racists could say, “HA, we were right! Interracial marriages led us down a slippery slope to same sex marriage.”

The point that Eugene Volokh makes is that even though the slippery slope is a logical fallacy, it is alive and well in a legal system that relies on reasoning through analogy and past precedent. But the point still remains that every good policy that we all support can—via the slippery slope mechanism—be taken to support policies that we do not desire.

So how do we stop the slippery slope in the courts? By limiting the case to the facts involved, or reading the rules in a more narrow sense. How do we limit the Loving decision? By only applying it to racial discriminatory cases. How would we limit a same-sex marriage ruling? By only applying it to gender discriminatory cases. And when we get involved in the “specifics” of each circumstance, we find that there are entirely different reasons for and against each of these cases. And it’s in those distinctions where social/legal policy can find their reasons for not extending the logic of one circumstance to another.

Cella’s “Locke Box”:

Writer/blogger Paul Cella—a social conservative with whom I often find myself disagreeing—has written a very interesting article about the political philosophy which founds this nation and the problem with ascertaining what those philosophers really meant and were attempting to accomplish.  His interests in these matters clearly dovetail with mine:

But aside from these technical problems, there is the still the nagging question of what a given theorist is trying to say. There is the question of his object and intent, which for many great theorists would remain controversial even if we possessed a perfect authoritative manuscript of the text.

That’s true.  Different phrases have more than one meaning and are subject to more than one interpretation; writers often would contradict themselves—so if we need to extract a coherent, consistent theory from say, Locke, we will need to interpret passages that could contradict one another in ways so they don’t.  And often there is more than one choice of interpretations. 

Moreover, we must keep in mind the context of the time.  Free Speech/Free Exercise of Religion didn’t exist at the time that many philosophers wrote.  Thus, controversial ideas could get Western philosophers killed just as easily as Salmon Rushdie received a Fatwa from the Ayatollah.  As Walter Berns writes about Locke in Taking the Constitution Seriously, “Locke himself was a victim of the day’s pervasive religious intolerance and, to escape it and to reduce the risk of his ending up on the gallows, he too fled to the continent.”  p. 159.  In other words, there is sound reason to believe that, for entirely practical reasons, Western philosophers at that time, would “beat around the bush,” or write certain messages in “code” as the Straussians argue.  (And there is also reason to believe that Strauss himself, for different reasons, also wrote in esoteric texts.  For instance, Strauss never himself came out as an atheist/nihilist; in fact he explicitly denied he was.  But anyone save Harry Jaffa or his followers who knew Strauss intimately will tell you that he was).

Here is Cella on Locke:

Another example: Did John Locke really assent to the doctrine of Natural Law, which he seems to do when he acknowledges his debt to Richard Hooker and takes swipes at Hobbes? Or was this mere "window-dressing," implicitly and resoundingly refuted by the force of his teaching? Does Locke represent a point of continuity with the ancients and mediaevals, or a break with them? This is still a matter of dispute.

Closer to home, there is the question of why The Federalist, the most magnificent document of American political philosophy, has so often been denigrated as "propaganda" by historians. Why have so many gone to such lengths to brand it for history not political philosophy at all but mere polemic?

Or, again, there is the question of whether Locke was as pivotal an influence on the American Founders as schoolchildren have been led to believe; whether the Founders were primarily Lockeans -- a question which throws us back, now with greater consequence, to the question of Locke's posture toward the philosophical tradition of the West.

If they were indeed Lockeans, and Locke was indeed a profound innovator, even a revolutionary, then America was indeed the vanguard of political modernity. But if they were not Lockeans, if the bulk of the founders in fact rejected the emerging Lockean innovations and instead drew from an earlier philosophical tradition, then America was a vanguard of reinvigorated premodernity. The consequences of a definitive answer to this question, it should be clear, are about as far-reaching as one can imagine.

Personally, I think our founders were Lockeans and that Locke did intend to break with the classical/Biblical view of politics.  America truly is “the vanguard of political modernity” as Cella terms it.  But it must be noted that “modern” in this sense means Enlightenment.  To say that our founders were “modern liberals” is to say that they were “Enlightenment liberals."  If our founders were “modern liberals,” then today’s leftist liberals would be termed “postmodern” liberals.  If we refer to today’s leftist liberals as “modern liberals” then our founders are to be termed “classical liberals.”  I know this is confusing.  But this is the language that Leo Strauss and his followers speak in. 

Linked:

Thanks to Electric Commentary for the permalink. Love the Caddyshack motif (check it out and you'll understand). And check out this funny post on Texas's "Christian Nation" platform plank.

More on Same Sex Marriage and the Slippery Slope Fallacy:

The following is based on another post that I made on the same thread on Justin Katz’s blog.

I continued responding to another poster's contention that bestiality follows homosexuality. In particular, he wrote:

[I]f a man inserts his member into a rectum for sexual pleasure: 1) if the rectum belongs to a goat, then the act is horrible and should be a crime, but 2) if the rectum belongs to a man, then the act is not a crime, and is instead an act of love so special and profound that we must consider it essentially indistinguishable from the act that produces new human life.

A man’s anus is as related to a male goat’s as a female’s vagina is related to a female goat’s.  In other words, we just as logically slide down the slope from “male human anus to goat anus” as we do from “female human vagina to goat vagina.”

Here’s an excellent on point quote from Dr. John Corvino (read the whole article if interested, it deals with ALL of these issues): 

The bestiality analogy is the most irksome of the three, since it reveals that the traditionalists are either woefully dishonest or woefully dense. To compare a homosexual encounter — even a so-called “casual” one — with humping a sheep is to ignore the distinctively human capacities that sexual relationships can (and usually do) engage. As such, it is to reduce sex to its purely physical components — precisely the reduction that traditionalists are fond of accusing us of.

I’ve said it before and I’ll say it again, the only thing that ties homosexual sex with polygamy, incest, and bestiality is being frowned on by tradition.  Well if that’s our guide, then we also have to logically include interracial couplings as well as heterosexual oral and anal sex, contraception, masturbation, and fornication.  I should point out that tradition once justified slavery.  There is nothing wrong with sticking with tradition when in doubt—society, therefore doesn’t constantly have to reinvent the wheel.  But tradition, in and of itself proves nothing.  If tradition can justify a crime against humanity like slavery, then it can justify anything. 

Another point demonstrating how logically far apart all of these things are from homosexuality and from one another:  Roy Moore—yes that religious nut—is against FMA (good for him—at least we agree on this).  One reason that he gave was if marriage is constitutionally defined as one man and one woman, then it could still be a father/daughter, mother/son, brother/sister. 

That incest or bestiality can be either homosexual or heterosexual shows that incest by itself is no more logically related to homosexuality than it is to heterosexuality. 

When asked to distinguish between interracial couplings and homosexual ones (in terms of being qualified for “marriages,”) a common response would be an interracial couple doesn’t violate the one man one woman definition of marriage—well neither does a brother/sister marriage.  Thus, you could just as easily argue, “recognize interracial marriages today, you’ll have incestuous ones tomorrow.”  Well what could possibly connect the two?  Bingo—both have been frowned upon by traditional values, just like with homosexuality. 

So let’s distinguish interracial marriages from incestuous ones.  The 14th Amendment clearly prohibits race based classifications; it doesn’t prohibit “family” based classifications as such.  Well the 14th Amendment, as currently understood, also prohibits gender based classifications—under a lower, but still heightened basis of scrutiny.  And the ban on same-sex marriages clearly is a gender based classification. Numbers (polygamy) and consanguinity (incest) still receive a “rational basis” (the lowest level of scrutiny) review.

And if you are worried about bestial marriages—don’t.  Animals do not and never have had the recognized ability to contract with humans.  You could no more make a marriage contract with your dog than you could contract with your dog to stop pooping on the kitchen floor.

Gay Marriage and Gender Discrimination:

The question posed on this thread on Justin Katz's blog and elsewhere is "if we recognize gay marriage, then where is the next stopping point down the slipperly slope?" Or "how do we recognize gay marriage under a certain set of principles, but not polygamy?"

I can tell you the exact stopping point from a legal perspective: gender based classifications receive heightened scrutiny while numbers based classifications do not.

When asked to distinguish between interracial couplings & same sex couplings, a common answer offered by anti-gay folks -- and a good one -- is the 14th Amendment. The 14th Amendment's equal protection and other clauses clearly prohibit race based classifications. The legal test that is used is "strict scrutiny" and invariably, laws subject to strict scrutiny fail.

Under present jurisprudence, gender based categories are also "suspect classifications" but are subject to "intermediate" (as opposed to "strict") scrutiny (in the real world: the law may or may not be struck).

When categories receive no suspect classifications, they get a rational basis review, (which means that the laws almost always get upheld). Number based discrimination get rational basis review.

Thus, there is just as much logical legal distance between prohibitions on race (misceg.) & gender (homo) discriminatory marriages on the one hand and gender (homo) and number (polyg.) on the other.

Some may argue that it's "sexual orientation" (gays) not gender (men or women per se), that is really being discriminated against. In a way I suppose, this is correct. But "sexual orientation discrimination" *technically* receives no heightened scrutiny (even though Romer and Lawrence would seem to indicate that it does). It is better established that gender based classifications receive intermediate scrutiny and the ban on same-sex marriage is clearly a gender based classification.

Thus, if a court wants to recognize gay marriage AND wants to prevent further slide down the slope to polygamy, it would be best for them to analyze the case under the rubric of "gender discrimination." And this is exactly what the state court in Hawaii did when they issued their landmark decision striking down the ban on gay marriage there.

Some posts on gay marriage:

I made a few posts on this thread on gay marriage at Justin Katz’s blog. The following two posts are based on remarks I made over there.

First, I responded to another poster who made this remark (not directed to me—but it could have been):

I think the reason we go around in circles is because I assume that marriage is intrinsically [sic] about children, while you don't. I think that SSM will offically [sic] sever the connection between marriage and procreation, but you think such a connection either never existed or has been severed already. I don't see any way for us to get around this question - it is so obvious to me that the two are tightly linked that I don't even know how to explain it to you. In fact, I think that those who deny the link, even when they are of good will (i.e. they aren't denying it because of their prior committment [sic] o [sic] SSM, as in Andrew Sullivan's case), are being remarkably obtuse.

Interesting. Marriage historically has been in a perpetual state of flux. "Bearing and raising Children" certainly remains a central purpose. "Property exchanges and the connecting of two families" USED to be a purpose in this culture; it no longer is, but remains so in other cultures. Commitment & caring for your better half, solemnizing romantic love certainly seems to be an important part of marriage as well.

It's not that procreation has NOTHING to DO with marriage; procreation and child rearing are indeed vital things that marital law ought to be concerned with. But it's not the be-all, end-all of marriage. As a matter of fact, there are certain marriages that violate the "procreative purpose" as much as gay marriages would that are already permitted (without a whole lot of hullabaloo).

There are some hetero couples who have no desire to have children and do everything they can to prevent this. One response is: “Well they may change their minds.” Or maybe they won't. What if they don't? But nonetheless live a long & happy life together? Are you going to tell me that they have not been "married" in the same sense as a couple who bore a dozen children?

Or what about the infertile? The Catholic Church has a clever response: Miracles happen. But you know what, there is such a thing as "natural" as opposed to "accidental" infertility. Let's talk first about those who are "accidentally" infertile: Men or women of child rearing age who cannot bear children are biological errors. Yes, maybe a “miracle” will happen. Or maybe it won't. What about an infertile couple who never manages to have children even though they hoped for the miracle? I think this is Pat Buchanan's circumstance. Is his marriage of any less value, any less legitimate because it bore no children?

Now "natural" infertility: All women go through menopause (should they live long enough). It's part of nature's plan that a 60+ year old women not have children.

Speaking of such, my 60 something year old Aunt is getting married again: her 4th. No miracle of child birth will happen there: Her future marriage will have as much chance of bearing children as a gay marriage. It seems as though THIS type of marriage violates the "procreation" model as much as a gay marriage would. So why do we permit them?

I think this goes to show that some marriages that do not produce children or have NO chance of producing children can peacefully coexist with marriages that DO bear children without adversely affecting them. Or will someone make the argument that post-menopausal marriages DO adversely affect the institution of marriage by severing the link between marriage and procreation?

Cathy Young on the “Christian Nation” Myth:

Over at Reason, Cathy Young is a thinker after my own heart. She discusses the Texas Republican Party’s error in asserting that the United States is a “Christian Nation” (or as she elaborates, what they mean when they state the US is a “Christian Nation” is erroneous). Young also references episodes of both The O’Reilly Factor and Hannity & Colmes that dealt with this exact issue. I saw both and immediately had the same reaction that Young so eloquently puts into words. As you see, she analyzes this in the exact way that I or Ed Brayton would:

On Hannity & Colmes, [guest host] Gallagher asserted that the plank was a simple statement of a numerical fact. "If a neighborhood had 82 percent of the population that was Italian or a town had 82 percent of the population that was Polish, we'd call those communities Italian or Polish towns. So why do liberals have such a knee-jerk reaction when anybody dares to suggest that with 82 percent of the population being Christian—we are, in fact, a Christian nation?"

Well, for one, if a town council passed a resolution affirming that it was an Italian or Polish town, there'd be a strong reaction, too. Such a resolution would be perceived as a clear statement that members of other ethnic groups are not welcome.

If we're going by the numbers, why not have a party platform asserting that the United States is "a white nation"? After all, 77 percent of Americans are white.

As for the plank's historical aspects, few would dispute that Christianity has played a central role in American history and culture. But the foundation of the American political system rests at least in equal measure on the secular philosophy of the Enlightenment.

On Hannity & Colmes, the Rev. Jerry Falwell, the prominent evangelical leader, asserted that it is precisely because America is a Christian nation that Jewish, Muslim, Hindu, or atheist Americans enjoy the freedom they do. That statement, however, reeks of ignorance: Plenty of Christian nations have had a sad record of religious intolerance and persecution. America's religious freedom is the product of a unique blend of Judeo-Christian and Enlightenment values; as Susan Jacoby documents in her recent book, Freethinkers: A History of American Secularism, tension between these two strands of our culture has persisted throughout our history.

An Anti-Family Amendment Fails:

Let’s be straight: The now failed FMA was fundamentally an anti-family amendment—one that insulted all gay families as well as every straight family containing an actual gay family member. Even straight families with no gay family members should likewise be insulted by the notion that gay couples getting married threaten their families in any way.

And be sure to check out this op-ed by libertarian god Richard Epstein. Up until now (the article is only a few days old) this op-ed was only available via the Wall Street Journal’s pay site. I’m glad it’s accessible on this free site as well. Epstein tackles the question of whether gay-marriage threatens hetero-marriage:

When President Bush, for example, talks about the need to "protect" the sanctity of marriage, his plea is a giant non sequitur because he does not explain what, precisely, he is protecting marriage against. No proponent of gay marriage wants to ban traditional marriage, or to burden couples who want to marry with endless tests, taxes and delays. All gay-marriage advocates want to do is to enjoy the same rights of association that are held by other people. Let the state argue that gay marriages are a health risk, and the answer is that anything that encourages monogamy has the opposite effect. Any principled burden of justification for the ban is not met.

Check this documentary out:

If anyone has HBO I strongly recommend this documentary—Capturing the Friedmans—if for no other reason than it’s one of the most bizarre things I've ever seen. The father is clearly a pedophile in his orientation and possessed a few pieces of child pornography; yet, despite this, he and his son almost certainly get railroaded by false allegations of child abuse and go to jail for it. While all of this was going down, one of the sons captured every moment on home camera. This middle-class family from Long Island is just too strange to describe in words. You’ll have to watch it. The mother of the family is possibly the single most annoying and poisonous character—real life or fiction—that I’ve ever witnessed. The allegations against Mr. Friedman resulted from the fact that he taught kids computer classes in an “after school” program that were held at his house. This was Mr. Friedman’s 2nd job—his first was that of a public school teacher. His reason for a second job was so he could throw himself into his work and get away from his wife. At first, you want to believe that he taught those classes so he could prey on the children—but then when you witness his “screaming banshee” wife, you completely understand why he would find any way he could to avoid her. And the kids are almost as annoying as she (diarrhea of the mouth, cheesiest sense of humor, and…well, you’ll just have to see). Mr. Friedman is the least annoying character simply because he’s very soft-spoken and isn’t always running his mouth.

Some thoughts on jurisprudence: the third way is the right way.

Sometimes it seems as though jurisprudential philosophy breaks down along the same dual lines as everything else in modern politics: Democrats v. Republicans; liberals v. conservatives, left v. right, etc.

I realize that this observation is a bit crude as there are many nuanced views of constitutional interpretation beyond this duality; but bear with me as I stick with this binary categorization. I would classify the two competing jurisprudential philosophies as, on the left—the “living document” v. the right’s—“original intent.”

The living document view holds that constitutional principles are essentially opinions and since opinions change with the times, constitutional jurisprudence should similarly “evolve,” or the document should “live.” All constitutional rules can change from time to time. To these liberals, the document is so “alive” that judges are free to read out various parts of the text—like the 2nd Amendment—or otherwise twist the meaning of the text so that certain words have nothing to do with their common sense dictionary meaning, i.e., the concept of “interstate commerce” can mean anything even if wholly unrelated to interstate commerce.

The conservative “original intent” jurisprudence also believes that constitutional principles are essentially a matter of opinion, but that these opinions don’t change with the times. Rather what must guide judicial decision making is a “snap-shot” of dominant 18th Century opinion regarding how each Constitution provision was expected to apply. Now getting such a “snap shot” can be quite a complex and challenging endeavor. We might think that this “snap shot” is written into the text of the document, but we would be wrong as much of the Constitution’s text—indeed some of the most fundamental principles—are written in broad generalities. And when we do our best to examine the historical record to figure out the “dominant” opinion of the day, we will find (1) there were many competing views among the framers, often impossible to tell which was dominant (2) sometimes individual framers seemed to contradict themselves in their opinions, (3) sometimes a framer’s public opinions were belied by his public actions (do we looked to what he said or how he behaved?), and (4) that “the states’” understanding of a particular constitutional text might differ with “the framers’” understanding. And for many of the most contentious constitutional issues, some combination of all four of these problems are present (and others as well).

Another problem—one that I personally have—with trying to get a “snapshot” of the dominant understanding of particular constitutional text is that this pays homage to the “opinions” of long dead men who were subject to some pretty serious prejudices that our society has moved beyond. They didn't just get it wrong; sometimes they got it horribly wrong. Blacks, women, non-propertied white males, and in many circumstances, non-Protestants had little or no say in the “collective opinion” that we are attempting to ascertain. Moreover these are folks who practiced slavery, used to fight duels with one another as a means of settling personal disputes, who used to tar and feather as a means of punishment, who used to execute all felons as criminal punishment, not just those who took the lives of others. Why give such deference to folks who dealt in such prejudices?

(With all due respect to Justice Scalia, even he recognizes this problem with original intent and holds that changes in tradition can trump the original understanding of the framers, as long as the changes don't conflict with the text in any way. But such changes, according to his philosophy, must be "deeply rooted in this Nation's history and tradition." That’s why during the Lawrence v. Texas oral arguments you could literally hear him “thinking to himself” about tradition & sodomy laws: As he questioned the lawyers, you heard him wrestling with the fact that many states had scrapped their sodomy laws thus giving the appearance of a tradition of getting rid of sodomy laws. Scalia’s conclusion? This particular tradition has not been long enough; the changes were too recent to mean anything to him.

There are many problems with Scalia’s jurisprudence. One is that, in our liberal democracy, focusing so much on tradition gives every bit of deference to the “democracy” part—meaning mob rule—and little or none to the “liberal” part—meaning rights of the minority that are antecedent to majority rule. This philosophy does recognize that there are certain rights of minorities, not subject to majority whim—but only such rights as were understood by the people at the time the Constitutional text was written. Any expansion of such rights has to be done by democratic action, or, if by judicial recognition, only if long, hard, and deep tradition—again reflecting the collective dominant “opinion”—exists to justify such move. To this jurisprudence, “minority rights” are something that courts should recognize as sparingly as possible. The ultimate problem with this point of view is that Constitutional principles/rights effectively boil down to whatever the majority thinks is appropriate).

There is a “third way” jurisprudence that properly rejects the aforementioned two. This view is sometimes called “liberal originalism,” and Randy Barnett’s “original meaning originalism” seems to be a variant of this view. The central problem with both the "living document" and "original intent" methods is that each views Constitutional principles as “opinion” and "opinions" are essentially subjective. In a previous post I wrote about my belief that Constitutional principles were "objective, ascertainable, and timeless.” Original intent conservatives might argue that they believe the same thing. But what their interpretive method actually does is try to objectively ascertain opinions that are at heart subjective, and then freeze them in time—so we have an objective guide that won’t change with the whim of the judges. But those “unchangeable” principles still at heart reflect some subjective opinion—whether it be the collective understanding of folks from the 18th or 19th Centuries or some present day tradition that is so deeply engrained in our culture that we can all recognize it.

The third way—liberal originalism—views the constitutional principles themselves as reflecting objective rational truths, existing independent of human opinion or expectations about how certain constitutional principles ought to apply. And it is these principles of natural rights and proper ends of government that ought to be our primary if not our sole guide when we interpret the Constitution. The problem with relying on subjective expectations of 18th Century framers or God forbid, looking to how they behaved, is that our framers were full of inconsistencies and sometimes—not always, but sometimes—misapplied their own ideals. Relying exclusively on their subjective understanding of these principles means that we have to rely on their errors as well. Errors as blatant as 2+2 = 5 thus become enshrined in our constitutional jurisprudence.

Take “all men are created equal,” for instance. If we were to attempt to ascertain dominant 18th Century opinion, we might rightly conclude that they meant “only white men.” And if “all men are created equal” is only a matter of opinion, then there would be no way of arguing with that. However, if equality is an axiomatic truth…if we truly are equally endowed with respect to certain fundament rights…and if blacks are human, then blacks are equally endowed with such rights regardless of how dominant the view might have been that “all men are created equal” doesn’t apply to blacks—because that view was, as a matter of fact—erroneous.

Or let’s take religious rights. Some believe that when our framers used the word “religion” in the Constitution, that they meant only Christianity—some going so far as holding Protestant sects only. And if we look at how the framers and the states behaved at the time—they indeed often acted as though only Protestants were worthy of such rights! But the interpretive problems that I mentioned above are apparent here: Jefferson and Madison clearly believed that all religions—Hindus, Muslims, Jews, Infidels—possessed these rights. But others, like Justice Joseph Story, argued that Constitutional rights were only intended to apply to Christians. The text of the Constitution doesn’t give us the answer. It uses the generic term “religion”—it doesn’t differentiate between Christian & non-Christian religions. And if such clauses were intended to protect only Christianity, this could have been written into the text because many state constitutions did protect only the Christian religion and we know this because their texts explicitly held so. Yet, the majority of those states who themselves protected “Christianity only” ratified the First Amendment that generically protected “religion.” There is no clear answer that is ascertained here by looking to “dominant” opinion.

Instead, what we should be inquiring about is why religion deserves protection in the first place. The answer is, because, as a matter of fact, individuals possess inalienable rights of conscience. As Madison wrote in his Memorial and Remonstrance, “[A]ll men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an ‘equal title to the free exercise of Religion according to the dictates of Conscience.’” Now this was not just Madison’s “opinion” but a timeless fact that is as true as the principles of Euclidean Geometry. It should be this objective truth that guides us when interpreting the religion clauses, not whose “opinion” was dominant.

Why, because even if the majority of folks believed as Joseph Story did, that only Christians possessed such rights of conscience, if that belief conflicts in any way with the ABOVE TRUTH stated in Madison’s Remonstrance, then such opinion—even if it were dominant—must give way to rational principles ascertained by Man’s Reason. So is there anything in Madison’s statement that could lead us to believe only Christians have the right to conscience? I can't find anything. The phrase, on its face, seems to generally apply to everyone regardless of whether they are Christian. Therefore those positing Story’s view would have to explain why, if what Madison said was true, only Christians possess these rights. And they are going to have do better than, “this is the way it was understood.” Because just because the majority believed 2+2=5 doesn’t mean that we are to be guided by such errors in our Constitutional jurisprudence.

Congrats to Sandefur:

For getting a book review published in the Claremont Review of Books. Very prestigious journal. Just look at some of the other names also writing in that issue! Very impressive.

Linked:

Thanks to Eve Tushnet for linking to my post on Watchmen’s Rorschach.

You might find this interesting:

I told Clayton Cramer in an email that I believed that the Constitution’s text was sacrosanct and that it and the Declaration of Independence contained principles that were “objective, ascertainable, and timeless.” Although I didn’t so elaborate, I believe those principles are generally rights to life, liberty, equality, the pursuit of happiness, and property. Some of the notable particular principles/rights—I can’t list all of them because they are literally unenumerable—include “conscience,” “speech,” and “contract.”

He replied:

Objective, ascertainable, timeless principles--why, if you weren't an atheist, you would be sounding downright Christian! This is the core conflict going on in our society right now, between a Platonic notion of universals, and an Aristolean view that is skeptical.

My reply back illustrates my own philosophy and how I think it dovetails with the philosophy of the founding:

I’m not an atheist—rather I’m somewhere between Deism & Agnosticism. I believe in objective truth and operate in the tradition of the Enlightenment—or the tradition of objective notions of Reason—which has its origins in Ancient Greece, had its heyday in the Enlightenment and is exemplified in the modern era by folks like Ayn Rand. I know she was an atheist. And most of our founders weren’t (I don’t think any were avowed atheists). But the belief primacy of Man’s Reason over Biblical Revelation, I would argue, was dominant among the most influential framers. They believed in God and were heavily influence by the Deistic-Unitarian philosophy which holds that the existence of God is ascertainable by Man’s Reason, that He created us with unalienable rights (this is not a Christian doctrine—even though many Christian’s adopted this idea). Susan Jacoby in her book Freethinkers, A History of American Secularism describes how God & Reason co-exist according to Enlightenment founding principles:

What did distinguish the most important revolutionary leaders was a particularly adaptable combination of political and religious beliefs, constantly subject to revision in an era when modern views of nature, science, and man’s place in the universe were beginning to take shape. These views included skepticism vis-à-vis the more rigid authoritarian religious sects of their day; the conviction, rooted in Enlightenment philosophy, that if God exists, he created human rationality as the supreme instrument for understanding and mastering the natural world; and the assignment of faith to the sphere of individual conscience rather than public duty. The logical extension of such beliefs was a civil government based not on the laws of God, as promulgated by self-appointed earthly spokesman, but on the rights of man. p. 14.

Now many in the day believed that orthodox Christianity was perfectly “Reasonable” and thus there was no conflict (which is what Locke argued in “The Reasonableness of Christianity). Others like Jefferson—and even Adams—scrapped much of such faith because it was “unreasonable,” (i.e. the Trinity). It appears based on Adams’s writings that even though he was quite conservative, that he put his faith in Reason over Revelation. Here is a letter of his to Jefferson in 1813 commenting on Britain’s repeal of a statute that made it a crime to deny the existence of the Holy Trinity:

We can never be so certain of any Prophecy, or the fulfillment of any Prophecy; or any miracle, or the design of any miracle as We are, from the revelation of nature i.e. natures God that two and two are equal to four. Miracles or Prophecies might frighten Us out of our Witts; might scare us to death; might include Us to lie, to say that we believe that 2 and 2 makes 5. But We should not believe it. We should know the contrary. Id at 13.

Now this Enlightenment philosophy holds religion to be a matter of “opinion” which government has no business touching or ruling over. But the principles of natural law/rights—principles ascertainable from Man’s Reason, unaided by Biblical Revelation—are within the realm of “knowledge,” not “opinion.” And these principles are what founds the public institutions of our nation—not the Bible.

I don’t follow the ACLU’s interpretation of “separation of Church & State.” I support vouchers and have no problem with public proclamations of a generic non-denominational God. And I realize that not every founder was so Gung-Ho imbibed in the Enlightenment. I think it would make for an interesting law-review article—maybe I’ll try to write it one day—that examines the Enlightenment, i.e. Madisonian, Jeffersonian vision of separation of Church & State and how it differs from both the ACLU’s version and the conservative version that holds that “disestablishment” means no government established sect only, whether state or federal.

[Update] Timothy Sandefur and Ed Brayton have commented on this post. Thanks for the link guys!

Cramer misses on Separation of Church & State:

Clayton Cramer has a post where he suggests that “it is high time that ‘separation of church and state’ be given a proper (and secular) burial.” He goes into much historical detail. Yet his analysis is clearly flawed because he leaves much out.

He begins by noting that the phrase “separation of church and state” is not found in the Constitution. I don’t think anyone ever claimed that it is in the text. But that doesn’t matter: The relevant question is, how does the Constitution deal with the proper relationship between government and religion? The answer is both religion clauses of the First Amendment and Article VI have the effect of “separating Church and State”; at least, this was what was intended by our Framers at the federal level.

Cramer correctly notes that the phrase “separation of Church and State” was found in a letter that Jefferson wrote to the Danbury Baptists. But he implies that this is the only time such phrase was ever used by our Framers to describe government’s proper relation to religion. That is incorrect. This phrase or very similar ones were used often by our Framers to describe religion’s stance in a liberal state. For instance, James Madison, who had more to do with writing the First Amendment than Jefferson, once famously said “Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Gov will both exist in greater purity, the less they are mixed together;” [James Madison, Letter to Edward Livingston, July 10, 1822, The Writings of James Madison, Gaillard Hunt].

(This link has other quotes from Madison where he uses the exact or very similar phrase, “separation of Church & State.”)

Cramer then, in great detail, notes many (the majority) states deeply integrated religion and government at the time of the framing of the Constitution. I agree that the religion clauses of the Constitution, as originally written, only applied to the Federal government. Moreover, I agree that “even Jefferson recognized that the First Amendment was a limitation only on the federal government.”

But the analysis doesn’t end there. There is virtually no discussion of the 14th Amendment or natural rights in Cramer’s post. Cramer recognizes that Jefferson thought the states ought to separate Church & State (well at least disestablish their Churches). The reason why Jefferson thought this was because he (and Madison and others) believed separation of government and religion necessary in order to secure natural rights—rights that all governments, federal, state, local, (and international) are supposed to respect. These rights are, according to the Declaration of Independence, the “ends” of government—not just the federal government, but government in general. As originally understood, the US Constitution was implemented to secure the natural rights of the citizenry, but (for the most part) only against federal violations of them. It was hoped that states, on their own, would respect the natural rights in most areas. Slavery is the perfect example. That practice clearly violated the natural rights found in the Declaration. Many of our framers, like Jefferson—even thought he/they were slaveholders—hoped to see the natural rights of slaves eventually secured. But they did not envision the eventual outcome of the Civil War. Rather, because the Federal government had no recognized power to stop slavery, states could practice it, but it was hoped that the states would eventually abolish the institution because natural rights demanded that they so do. The bottom line is this: Just because the power of states to do X was preserved doesn’t mean that the framers approved of X or that X is consistent with our founding principles.

And with the passage of the 14th Amendment, the balance of power between the states and the federal government underwent a major shift. Now, with the "privileges or immunities" clause of the 14th, the federal government had the power to make the states respect the natural rights of their citizens. Indeed, Everson, the case that first applied the Establishment Clause to states could only do so because of the incorporation of such rights through the 14th Amendment (but through the wrong clause).

The question then becomes was the Establishment Clause properly incorporated? This can get quite complicated. If one doesn’t believe in the doctrine of incorporation, then the answer is no. Even if one does, there are still some prominent scholars—Randy Barnett, Akhil Amar, and others—who believe that while the Free Exercise Clause and the Ban on Religious Tests are properly incorporated, that the Establishment Clause is not. Why? Because “rights”—both natural and positive—are what is incorporated. Unless a particular provision of the Bill of Rights can be tied to a right, then it ought not be incorporated.

The rights that the religion clauses relate to are the rights of conscience—equality and liberty of conscience—rights that our framers absolutely were first and foremost concerned with. This quote by Jefferson perfectly encapsulates such concern: "But our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to God."

So the question of incorporation turns on whether a state with an establishment, a “Christian republic” if you will, can effectively enforce the equal rights of conscience. Personally, I don’t think that such a republic run by the likes of Roy Moore could do so. And neither did Jefferson and Madison. Both thought that only a state that separates Church & States could effectively guarantee such rights.

And here is where we get to the most serious flaw in Cramer’s analysis. He claims that in Everson, the Supreme Court relied only on Jefferson’s letter to the Danbury Baptists, which, according to Cramer,

had only addressed the question of whether states should give legal preference to one church, and [the Court misinterpreted this letter by arguing] that the First Amendment should be understood as meaning no law could aid any religion—a position that Jefferson did not take in that letter…. While both Jefferson and Madison (principal author of the Bill of Rights) had certainly played a role in disestablishing the Anglican Church in Virginia, the rest of the First Congress—who also voted on the First Amendment—did not share Jefferson and Madison’s views on disestablishing churches at the state level. There is also no evidence that Jefferson and Madison would have agreed with this claim that "no law could aid any religion"—and the actions of both Jefferson and Madison Administrations, as we have previously seen, suggest otherwise.

The problem is both Jefferson and Madison indeed argued that “no law could aid any religion.” Cramer claims that the Everson decision did not give any authority for its claim that the First Amendment required this:

Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. [Everson v. Board Of Education Of Ewing Tp., 330 U.S. 1, 16, 17 (1947).]

But the fact of the matter is, the Court relied on extensive historical evidence beyond Jefferson’s letter to the Danbury Baptists in coming to this conclusion. In fact that passage perfectly sums up both Jefferson’s Virginia Statute on Religion Freedom and Madison’s Memorial and Remonstrance, which are the main documents, in addition to Jefferson’s letter to the Baptists, that the Court relied upon in coming to its conclusion. What is special about both of these documents is that they detail Jefferson’s and Madison’s ideal on how religion and government should be situated against one another. And the VA Statute (which Madison fought tooth and nail to pass) makes it clear that this is not just what is appropriate for VA, “that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act shall be an infringement of natural right.”

Now, the statute doesn’t use the words, “separation of Church and State.” But that’s what the statute clearly does. It goes well beyond just disestablishing the Anglican Church in VA. On the question of government aid to religion, that statute states “that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor….”

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

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

It’s important to note that when drafting the US Constitution and the Bill of Rights, the Framers could have followed the model of any one of those states that clearly integrated Church & State. They could have required that one must be a believer in the Christian Religion in order to serve in public office, that the Federal government has the power to “promote religion, or Christianity” (keep in mind that the Federal government is one of explicitly limited enumerated powers—if the power is not on the list, then the Federal government doesn’t have it), etc., etc. No, they completely left any mention of “God” out of the Constitution, they didn’t empower religion, and when they did speak of religion, they did so only in the negative sense. In other words, they seemed to follow the VA model of disestablishment, not the model of the other states.

And the fact that our framers used the word “religion” generically and not “Christianity” in particular does have meaning. Cramer cites Chief Justice Story’s claim that “The real object of the [First] amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.” [Joseph Story, Commentaries on the Constitution of the United States… (Boston: Hilliard, Gray And Company, 1833), §§ 1865, 1871. So why didn’t they use the term “Christianity” then? Jefferson explains the significance of the absence of Christian language in the VA Statute:

Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word "Jesus Christ," so that it should read, "a departure from the plan of Jesus Christ, the holy author of our religion;" the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination.

Indeed, there was much furor that the provision of the Constitution stating that “no religious tests shall ever be required as a Qualification to any Office or public Trust under the United States” amounted to, in the words of a North Carolina minister, “an invitation for Jews and pagans of every kind to come among us.” “At the Massachusetts convention, one speaker warned that unless the chief executive was require to take a religious oath, “a Turk, a Jew, a Roman Catholic, and what is worse than all, a Universalist, may be President of the United States.” See Susan Jacoby, Freethinkers, a History of Revolutionary Secularism, at pp. 25-27. If the framers wanted the term “religion” to mean only “Protestant Christianity” this could have been written into the Constitution, but it wasn’t. And folks who wanted only Protestant Christianity to be protected knew what that meant.

Now we can quibble with Jefferson’s and Madison’s views on religion as expressed in their respective VA documents. We can ask does forcing someone to pay tax $ to religion really violate a right on the grounds that government can’t force us to pay with opinions that we disagree with? (Government seems to do quite a bit of that these days). But to say that the Everson court only relied of Jefferson’s letter to the Danbury Baptists while ignoring their extensive reliance on the VA Statute and the Memorial & Remonstrance is just flat out wrong.

My own personal opinion is that separation of Church & State—a secular government that takes no stance on religion—is necessary to support the equal rights of conscience for all religions. It also comports with the Enlightenment notion that religion is a matter of “opinion” (the VA Statute refers to religion exclusively as "opinion") that government has no jurisdiction over (Madison's Mem/Rem states that "Religion be not within the cognizance of Civil Government"). Yet, the ends of government as described in the Declaration are a matter of "knowledge," not "opinion"—that is these principles are not negotiable. Madison & Jefferson also seemed to believe this too. In fact, Madison originally wanted the federal government to guarantee these rights against the states. His first draft of the First Amendment read:

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

But this language was voted down because other framers considered it to be an overreach of federal power. So the compromise was this: Church & State would be separated at the federal level, and the states would be free to handle it their own way—with the hope that they would follow the federal model of separation, which is what many of them did. There was a wave of disestablishment that followed the passage of the Bill of Rights. But the bottom line is that the rights of conscience are natural rights. And if we believe that states must respect natural rights and the federal government has the power to enforce such rights, then separation of church & state is proper if necessary to secure the rights of conscience.

One last thing, Cramer points to examples of how the Jefferson and the Madison Presidencies ignored the separation of Church & State by using the Federal government's facilities to hold Christian Church services. This does not refute separation of Church & State as an originalist ideal because our framers were perfectly capable of raising an ideal one day, and then violating it the next. The question begged is whether that conduct truly was consistent with what Madison and Jefferson wrote in their VA documents, with the natural rights of conscience, and thus a proper understanding of the Constitution's religion clauses.

The greatest existentialist hero:

In modern storytelling, the greatest existentialist hero isn’t Travis Bickle or Holden Caulfield, but Walter Kovacs, aka the crime-fighting superhero Rorschach from Alan Moore’s Magnum Opus comic book, Watchmen.

I first read Watchmen when it came out in 1986, when I was 13. Don’t be fooled, this book is an “adult comic book” with very sophisticated themes of science, philosophy, and politics as well as graphic sex and violence. I understood much of the book when I first read it, and enjoyed it a great deal. But I clearly didn’t get all of it. Over the years I’ve re-read it a few times, picking it up every few years. And each time I do so, I understand more and more of the things that previously went over my head. Last time I read it, I was in my early 20s, and now at the age of 31, I’m reading it again. I’ve learned a great deal about political science and philosophy since then and I suppose I’m presently reading it—and subsequently discussing it in this post—through the lens of my own particular interests and understanding of such.

Watchmen was written by eccentric and brilliant comic book author Alan Moore. The theme of the book is “what if superheroes really existed” in a real world with real people? Under “real world logic,” things wouldn’t go down as read in the comics. Eventually, the government outlawed being a costumed hero, unless of course, they worked exclusively for the government. We won the Vietnam War with the help of a man with Superman level powers. And Nixon used another “hero” to murder Woodward & Bernstein…then 22nd Amendment was repealed—and Nixon is still President in 1986.

Moore’s politics—anarchist left—show throughout the book. Yet Moore (like Frank Miller, the other “bigwig” of adult comic books, whose political themes are very similar to Moore’s) also seems to sympathize with the “anarchist-right.” And this is clearly the politics of Rorschach: somewhere between Ayn Rand and the John Birch Society. As Julian Sanchez correctly notes, Rorschach “ultimately comes off as the hero possessed of the greatest moral strength and integrity.” And the villain “is full of Good Intentions, and ever so sorry that he has to kill a few (million) people in pursuit of the Common Good.”

When costumed crime fighting became illegal in the 1970s, all of the superheroes caved in and quit save Rorschach who responded by dropping off the corpse of a multiple rapist at police headquarters with a note that read, “NEVER!”

So how did Rorschach come to be? Let me summarize Chapter VI, entitled “The Abyss Gazes Also.” He was the abused bastard child of a prostitute (so you know he has “issues” from the start) and was incited to become a crime fighter after reading about Kitty Genovese’s murder in front of a crowd of on-lookers who refused to lift a finger. He took a special fabric that contained “viscous fluids between two layers of latex, heat and pressure sensitive” that resulted in black and white moving and changing shapes and fashioned it into a mask (so the mask would appear like an ever moving Rorschach blot test). He donned that mask in 1964, but didn’t truly “become” Rorschach until 1975 while investing the kidnapping of a 6-year-old girl. He arrives at the suspect’s residence to find two German Shepherds fighting over the girl's bones. In that moment he snaps and brutally butchers the two dogs while lying in wait for the return of the suspect. He ambushes the murderer with the dog’s bloody corpses and then handcuffs the man to a stove in his basement. Rorschach then pours kerosene around the room, lights it and walks away.

He then describes what he felt as he watched the burn. And here is where Moore perfectly encapsulates the Nietzschean heart of this hero:

Stood in firelight, sweltering. Bloodstain on chest like map of violent new continent. Felt cleansed. Felt dark planet turn under my feet and knew what cats know that makes them scream like babies in night. Looked at sky through smoke heavy with human fat and God was not there. The cold, suffocating dark goes on forever and we are alone. Live our lives, lacking anything better to do. Devise reason later. Born from oblivion; bear children, hell-bound as ourselves, go into oblivion. There is nothing else. Existence is random. Has no pattern save what we imagine after staring at it for too long. No meaning save what we choose to impose. This rudderless world is not shaped by vague metaphysical forces. It is not God who kills the children. Not fate that butchers them or destiny that feeds them to the dogs. It’s us. Only us. Streets stank of fire. The void breathed hard on my heart, turning its illusions to ice, shattering them. Was reborn then, free to scrawl own design on this morally blank world. Was Rorschach.

Now Rorschach tells this story to a prison psychiatrist while being psychoanalyzed—in fact while being given a Rorschach blot test. At the heart of this hero is “the abyss.” The psychiatrist is staring into a living version of the abyss and feels great discomfort because “he stares back,” never seeming to blink.

That this Nietzschean hero chooses the theme of “Rorschach”—the famous test used during psychoanalysis—had profound meaning for me, after learning from Allan Bloom’s The Closing of the American Mind, that psychiatry and psychoanalysis are rooted in Nietzschean philosophy. The intellectual lineage of modern psychiatry, psychology (and philosophy) from Woody Allen to David Riesman to Hanna Arendt to Eric Fromm to Freud…all trace back to Heidegger and to Nietzsche. Bloom despised these professions because they were pivotal in Nietzschean philosophy's ultimate “conquest of America.” But this was not because Bloom despised Nietzsche. In fact, Bloom, like his mentor Leo Strauss, was at heart, a Nietzschean nihilist. He despised how contemporary leftist philosophers had remade Nietzsche—the most anti-egalitarian philosopher—into a left-wing egalitarian and spoon fed nihilistic teachings, clearly not fit for mass consumption, to the public.

But to make nihilism consumable by the masses, it had to be distorted, or else the public wouldn’t swallow it. So Nietzschean philosophy had been turned into a tool to make people feel good about themselves! And it was psychiatrists and psychologists who were the main culprits in turning Nietzschean philosophy into such “therapy”; Bloom called it Nihilism American Style (the original title of his book)—which is “Nihilism with a happy ending,” or “Nihilism without the Abyss.” But the central insight of nihilism is the abyss—which does the very opposite of making us feel good about ourselves! How absurd that this is what nihilism has come to be!

In Watchmen, the prison psychiatrist, who has a “cheerful disposition,” who is “good with people” tries to use psychoanalysis and “therapy” to “treat” Rorschach, because, “no problem is beyond the grasp of a good psychoanalyst.” But after his sessions with Rorschach are over, it’s the psychiatrist who becomes depressed. Here is the doctor’s reaction to Rorschach’s above excerpted speech after coming home and reflecting on it:

I sat on the bed. I looked at the Rorschach blot. I tried to pretend it looked like a spreading tree, shadows pooled beneath it, but it didn’t. It looked more like a dead cat I once found, the fat, glistening grubs writhing blinding, squirming over each other, frantically tunneling away from the light. But even that is avoiding the real horror. The horror is this: in the end it is simply a picture of empty meaningless blackness. We are alone. There is nothing else.

Then the book ends with a quote by Friedrich Wilhelm Nietzsche—the only time Nietzsche’s name is formally cited: “Battle not with monsters, lest ye become a monster, and if you gaze into the abyss, the abyss gazes also into you.”

I’m sure Bloom never read Watchmen—he was such a cultural snob, he would never have taken comic books as serious literature. But if he did, he certainly would have smiled after finishing this chapter. The doctor’s and patient’s roles were reversed. The patient made the doctor truly appreciate what was at the heart of the nihilistic philosophy that undergirds psychoanalysis and its tools like the Rorschach blot test. The doctor, for the first time in his life, had truly stared into the abyss—and flinched.

Better than the last 3 Batman movies:

Jonah Goldberg links to Batman: Dead End—a 15 minute Batman plus (you’ll have to view it to see what is meant by the “plus”) mini-movie made by an independent film producer for a relatively small amount of $. In that short period of time, the producer manages to outdo the last three Batman movies combined (the 2nd Batman movie wasn’t bad—but wasn’t as good as the first. The last 2 were god-awful).

More on International Law & Iraq:

Donald from Crescat responds to my post on an Iraqi tribunal trying Saddam Hussein. To answer his question, “Did these norms indeed exist at the time of Iraq's invasion of Kuwait?” Yes, absolutely and unequivocally what Saddam did in invading Kuwait violated then existing and presently existing norms of international law. The contentious question is whether an Iraqi tribunal has the authority to try Saddam for something that unquestionably violated international law. This is a tough question to answer because this is not necessarily a question of international law but of domestic Iraqi law. Thus, one really must be familiar with the nuts and bolts of Iraqi domestic law to give a sure answer (I'm not).

Reiterating what I wrote before, we can break this down into two questions. One is, at the time of the attack, would Iraqi law allow for the trying of a leader who violated international law in the misuse of the military? Even if the answer is no—I don’t think that this should bar a present court from trying Hussein because that system is 1) no longer in place, and 2) was an utterly corrupt and despotic regime. The second question would be, under present Iraqi law—under the new regime—is there authority for trying a leader for misusing the military in a way that violated international law?

To make an analogy to the Nuremburg trials, what if a domestic German tribunal—now under democratic occupation—got the first crack at the Nazis immediately after the War? Well they couldn’t argue that what Hitler did violated German law as it existed at the time, because the Holocaust was legal under Nazi Germany law. Would a reconstituted Germany, with a new set of “democratic” laws nonetheless have the authority to try the Nazis for violating International Law in its misuse of the German military?

The interesting thing about the actual Nuremberg trials was that they truly did raise an expost facto issue that Saddam’s trial doesn’t. Saddam’s unprovoked armed attack of Kuwait clearly violated international law—violated the UN Charter to which Iraq was a signatory, and such unprovoked attacks also have been long recognized to violate customary international law. As far as I know, Germany, at the time of the Holocaust had no treaty obligation promising not to commit genocide within its borders, or occupied territory. And when questioned as to why they did what they did—the Nazi response was of course, “we were just following the law, just following orders.”

So the theory was, the Nazis violated Crimes Against Humanity—which fall into the class of norms that are so fundamental that they are applicable everywhere and that no nation or individual, etc. may violate regardless of what the prevailing positive law says. And the legal basis for Crimes Against Humanity is Natural Law/Customary International law. Natural law is of course, ascertainable by Man’s Reason. Yes, it was Reason alone that provided the basis for at least some of what was prosecuted in the Nuremberg trials. What was controversial at the time of the prosecution was that even though we could, through the exercise of our reason, determine that genocide was a crime against humanity, at the time of Nuremberg, it had not been long recognized as such—the rule had not yet fully crystallized in the minds of the international community. Nuremberg was the first time the International community formally recognized that Genocide violated customary international law. Subsequent to Nuremberg, precedent exists. And also many widely ratified anti-genocide treaties have since emerged. But the prosecution of the Nazis, at least for some of their offenses, occurred before the positive law emerged for such offenses (and the prosecutors were mindful of this potential expost facto defense and attempt to tie as much Nazi conduct into existing positive law that prohibited War Crimes—which are distinguishable from Crimes Against Humanity, even though there is a big overlap).

On a different note—I’m not sure if this assertion by Donald is correct:

Do we want to encourage the Iraqi government to create precedent for its new nation by which the judiciary is able to second-guess decisions of an executive through the imposition of criminal sanctions? We'd never stand for such principles in our country; why impose them on nation struggling to bring about a constitutional order?

Okay, let’s put America in Iraq’s then position. Let’s say a Rogue US President gets into power and invades Canada for no good reason and then does horrible things to the innocent Canadian population. After this President is Impeached, I’d say that yes, our courts could try him for such conduct that violates international law. Congress has the Constitutional power to “to define…Offenses against the Law of Nations.” And—again, now we venture away from International Law and into domestic “separation of powers law,”—impeachment is not the only remedy that we have against Rogue Presidents. Case in point, after Nixon resigned, there was talk of prosecuting him for crimes that he committed as he acted in his capacity as President—then Ford pardoned him.

July 4th:

I'll defer to Roger Pilon for this year’s July 4th message. Also, check out this excellent issue of Time magazine of which I have bought the hard copy (I almost never do).

Jealous:

Randy Barnett is an extremely lucky person to have a job as Law Professor in the city of Boston (well actually, he, if anyone, deserves it). In this post, he blogs about summer in Boston. I spent two summers there in college—in 94 and 95—and it’s exactly as he describes it (you pay for it in the brutally cold winters though). The only negative thing about my college experiences there is that I wasn’t employed in a “side job” as a student, so I had less disposable income—that shut out much of the “Boston” experience (like all of those fancy restaurants on Newbury Street) where you have to have a little extra $ in order to enjoy it.

Separated at Birth?

Are Jeopardy uber-champ Ken Jennings and Eugene Volokh long lost twin brothers? They look alike. Jennings is a software engineer which is what Volokh was previous to his legal and academic career. And Jennings is doing exactly how I’d imagine Volokh would do were he to become a contestant.

International Law and War:

Well since I do have an advanced law degree in International Law, I might as well try answer this question raised by Donald at Crescat that Sandefur references relating to whether what Saddam did when he attacked Kuwait really violated any international law. Donald writes (Sandefur's ellipses):

at the time of the invasion of Kuwait, Saddam was in lawful control of the military...[and] no law existed at that time barring the use of the armed forces in any action that Saddam would have deemed necessary…. But does anyone seriously believe that in the late 1980s or early 1990s a law existed prohibiting violation of the “laws of nations?”

Yes, both natural and positive law existed at the time that made Iraq’s (Saddam’s) actions illegal.

As to the positive law that Iraq (Hussein) violated by attacking Kuwait, Article 2, section 4 of the United Nation’s Charter states that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state….” Nations who joined the UN did so by agreeing to the treaty obligations of the UN Charter. Iraq was a member of the UN at the time of the attack.

Now positive international law is basically treaty law—you acquire the international obligation by agreeing to the treaty. If you don’t want the obligation, then don’t agree to the treaty.

There is also a natural law basis for prohibiting these actions. In international law parlance, we use the term “customary international law” to refer to laws that all nations must respect, regardless of whether they agreed to the treaty. Customary international law is of course derived from natural law—laws that bind everyone everywhere. Of course, customary/natural law is a very contentious subject. Very strict “positivists” (often conservatives) want to deny that it exists, or otherwise want to limit it existence as narrowly as possible (for instance Robert Bork recognizes the existence of customary international law—or rather I should say he recognized that our federal courts have the ability to apply such law—but wants it frozen in time as to exactly what our framers thought of such law when the constitution was written. Then, only a few things were recognized to violate international custom—like piracy on the high seas).

But it is well established that an unprovoked armed attack violates customary international law. That is, even if an international state is not a member of the UN or agreed in a treaty that they would refrain from armed attacks, they are prohibited from doing so nonetheless.

Note: I realize that Donald's critique seems to focus on the ability of an Iraqi, as opposed to an international tribunal, to try Hussein. In order to thread this needle, the court will have to find a way to justify its jurisdiction to hear cases that violate "the law of nations."

I'd have to look further into Iraq's constitution and other laws as they existed at that time in order to see if they at that time of the attack had jurisdiction to hear such cases. But then again, what Hussein did clearly violated international law as it existed at that time. Why shouldn't this Iraqi court be able to apply international law? That is, there is nothing special about international law that demands that a cohort of nations acting under the auspices of the "International Community" have the exclusive right to hear such cases. Even if the authority of these Iraqi courts to hear cases that violate the law of nations is newly granted, that is, it didn't exist under domestic Iraqi law at the time of the attack, I don't think it would qualify as an expost facto law, because the norms themselves, and hence Iraq's violation of them, clearly existed at the time of Iraq's action.

Is there really a difference between this Iraqi tribunal, that exists under a newly created system, and a newly created "ad hoc" tribunal run under the auspices of the international community (which is how it was done in Yugoslavia & Rwanda)?

Two Cheers for the West:

Dinesh D’souza has an article that summarizes what he has written about extensively elsewhere regarding what makes the West great. The international socialists, unfortunately, have been spreading a myth that the West has become rich, only to the extent that it has victimized non-Western nations…as if there were “pre-existing wealth” located all over the world that the West has collected to the exclusion of everybody else. D’souza is one of the best at smashing this erroneous point of view. He argues that if anything, colonialism tremendously benefited non-Western nations by putting them in contact with Western ideas, which would bring them closer to freedom and prosperity:

Did the West enrich itself at the expense of minorities and the Third World through its distinctive crimes of slavery and colonialism? This thesis is hard to sustain, because there is nothing distinctively Western about slavery or colonialism. The West had its empires, but so did the Persians, the Mongols, the Chinese, and the Turks. Some Western empires like Britain and France grew rich, while others like Spain and Portugal remained poor. And if colonialism is a universal institution, so is slavery. Slavery has existed in every known civilization, from China to India to Africa to pre-Columbian America.

What is uniquely Western is not slavery but the movement to abolish slavery. Of course in every society, slaves have strongly resisted being slaves. Runaways and slave revolts occurred frequently in all slave cultures. But never in history, outside the West, did a movement arise of potential slave-owners to oppose slavery in principle. Only in the West, and specifically in America, did hundreds of thousands of people expend a good deal of treasure and ultimately a great deal of blood to bring freedom to African Americans—a group that was not in a position to secure freedom for itself.

After defeating George Foreman for the heavyweight title in Zaire, Muhammad Ali returned to the United States where he was asked by a reporter, “Champ, what did you think of Africa?” Ali replied, “Thank God my grand-daddy got on that boat!” Ali’s point was that although the institution of slavery was oppressive for the slaves, paradoxically it benefited their descendants because slavery was the transmission belt that brought African Americans into the orbit of Western freedom. The same is true of colonialism: against the intentions of the European powers, who came mainly to conquer and rule, colonialism proved to be the mechanism by which Western ideas like democracy, self-determination, and unalienable human rights came to the peoples of Asia, Africa, and South America.

Elsewhere D’souza has written that we can’t claim that exposure to Western ideas has been 100% positive—that there were indeed some pernicious ideas (at least one big one) that have Western origins that did take off in many non-Western nations, most notably Marxism.

On the other hand, I think of Hong Kong, who now long for the days of British colonialism. Even without democracy, Hong Kong implemented a laissez faire economic system which enabled it to transform from a lesser developed nation to a rich industrialized one within a shockingly short period of time. And they did so while existing on land with virtually no natural resources—just one big rock.

From what I remember about Hong Kong’s history, it was as if Britain had one long lease (around one hundred years?) that recently expired, and they had to give it back to China. China hasn’t yet destroyed Hong Kong’s free market system. Indeed, China seems to be embracing free markets in the homeland. But they rule with a far heavier hand than Britain ever did (or at least than Britain did in the modern era).

John Podhoretz is a friggin idiot:

Put me with Jonah Goldberg and Jacob Levy. And yes I do still “preserve comic books from the [1980s, 1990s, and 2000s] in little clear plastic bags.” And no the guy that sells me my comics doesn’t “resemble Jabba the Hut — if Jabba the Hut wore a t-shirt with a Metallica logo on it.” Rather he looks like a cross between Stanley Kubrick and yes, Comic Book Guy from the Simpsons (There is so much truth in that character).

But seriously, Podhoretz is dead wrong that comic books aren’t a serious art form—or at least, I'd argue, some of them are (He’s as wrong as those who claim the same thing about rock & roll. BTW, Podhoretz was mentored by Allan Bloom who certainly would claim both). Comic books are part of pop culture and like most pop culture—sit-coms, movies, pop music, etc.—there is a lot of “crap” out there. But there is also “the good stuff” as well (and of course there is more “crap” than “good stuff,” but I’d argue than comic books contain a higher % of “the good stuff” than likewise %s in rock music, sit-coms. I’d put comic books on par with movies in this respect).

When the history of the Western canon is revised in the next two-hundred years, expect Alan Moore’s The Watchmen and Frank Miller’s the Dark Knight—and if I had a vote, Kurt Busiek’s Astro City—to make the list.

And some of the art—again, “the good stuff”—is damn fine art, worthy of being shown in art galleries around the world (and sometimes is). Some notables (favorites of mine) include Neal Adams, John Buscema, George Perez, Phil Jimenez and Alex Ross.