Linked:

Thanks to Brett Marston for the link. I've returned the favor!

My 2 ¢ on Reagan:

Reagan, at times, called himself a “libertarian.” No I don’t think we should co-opt him into the philosophy; some of his views and actions were decidedly un-libertarian. Still many libertarians backed Reagan making him the embodiment of Frank Meyer’s idea of fusionism (a conservative philosophy that attempts to gain the support of both libertarians and traditionalists).

To the extent that Reagan furthered libertarian ideas, he deserved praise. He did Yeoman’s work in reforming the tax code and otherwise pushing the economic ideas of the great Milton Friedman. “Reaganomics” stimulated the economy so much that revenues increased as taxes were lowered. However, this “Laffer-Curve” economics led to a “we can eat our cake and have it too,” philosophy. And we can’t. Yes, revenues increased, but not as much as did federal spending. Reagan left government bigger leaving office than when he began, a lot bigger. Still the Reaganites blame that one on the Democrats in Congress.

Reagan talked a good game about all of those federal departments that we could do without, and got rid of none of them. To be fair, all Presidents, whether “liberal Democrat,” or “conservative Republican” leave government bigger after exiting the White House than entering it. But this is no excuse. In fact, to me, it is a Crisis in modern politics. This is why, even though the Libertarian Candidate for office certainly has his “issues,” my conscience demands that I vote for their candidate because he will be the only game in town (unlike Bush or Kerry) who, if elected, would have a fighting chance of leaving the office with a smaller federal government. And what an accomplishment that would be!

Although Reagan did much that libertarians could appreciate, his administration definitely had its non-libertarian side. Men like Ed Meese, Gary Bauer, Alan Keyes, Bill Bennett, and others, represented the administration’s “authoritarian” wing. Under the guidance of these men, the administration furthered Richard Nixon’s “War on Drugs,” and even gave us a “War on Pornography.”

These "authoritarians" also adopted more or less a “gag-rule” on the newly emerging AIDS crisis. One of my favorite moments from the administration was when Surgeon General C. Everett Coop, himself a Protestant fundamentalist, bucked that convention with his candor about AIDS and protecting oneself with condoms. And then to see the hysterical reaction of the Christian right, reacting as if he had betrayed them. Koop will forever have my appreciation for his conduct on that issue.

For me, the bottom line on the administration is that I couldn't endorse it because of its authoritarian elements.

Ughh, Getting Old:

Yes, my B-Day is D-Day. Last year when I turned 30 I told everyone that I would start to age in reverse. So I guess I'm 29 again this year.

Defending the SAT:

Gail Heriot guest-blogging at Volokh defends the SAT. Kudos for her -- that test in general and standardized tests in particular are much in need of defending against their “leveling” critics. She takes on the misleading notion that standardized tests are unfair because they tend to tell us about the socio-economic status background of its takers.

Does that mean that there is no relationship between socio-economic class and SAT scores? Of course not. For whatever combination of nature and nuture, the children of successful, well-educated parents do tend to do better than less-privileged children. But the effect is not as overwhelming as Sacks argues. The notion that only those with Volvos need apply to the Ivy League is nonsense.

Moreover, insofar as the children of successful parents do score more highly, the test is measuring something real and not something that will disappear if the SAT is abolished. Such students, on the whole, don't just tend to get better scores, they tend to do better in college too. Ignoring SAT scores just because the children of high-achievers tend to do well would be like ignoring height in basketball players just because the children of tall people tend to be tall.

In other words, there is a correlation between wealth and doing well on these tests, but there is no causal effect—being rich doesn’t cause one to do well on this test. Those who imply that standardized tests benefit the rich mislead because they either don’t understand, or are blatantly dishonest about why the children of the better off out-perform on standardized tests: High academic preparation and achievement lead to economic success. Adults who are economically well off tended to be better academic achievers and they pass that on through culture and genetics to their offspring. Hence, the children of wealthier parents tend to be more academically prepared than the children of lesser socio-economic backgrounds. That’s why the students who come from wealthier backgrounds who do better on the SATs do better in college too.

The SAT/wealth argument is a red-herring because it takes nothing away from the predictive validity of that test. If the test isn’t a “perfect predictor” (nothing is, by the way), then let’s replace the SAT with something that is an even better predictor. Let the test with the highest predictive validity be the one that is used. The levelers don’t want to do that. They want to replace something that has predictive validity with nothing (if you don’t believe me, Lani Gunier has argued that Law School Applications—especially for the prestigious Ivy League Schools—should be accepted on the basis of a lottery system!).

Standardized tests fly in the face of the modern egalitarian notion of equality of condition. The best and brightest rise to the top and achieve success, make more $, accumulate more wealth than those of lesser talent. Yet standardized tests like the SAT perfectly exemplify classical notions of equality (equally of opportunity, not of condition). That test is equally accessible by all and every one takes the exact same test. Indeed, these tests were created to end an aristocratic-like system that hands down privileges solely on the basis of blood-line and background. Heriot writes that the tests were put into place “to take privilege away from the WASPish families of the Eastern Establishment and put it into the hands of talented young people, regardless of background. And they were pretty successful. More than one Nebraska farm girl or government clerk's son from Newark has beaten out a scion of wealth and privilege for a seat at Harvard or Yale precisely because of the SAT.”

Moreover let me add that there are plenty of stories of Asians immigrating to America literally in boats, not learning the language perfectly (the adult immigrants, that is -- the children tend to learn the language perfectly), but working like crazy in blue collar types of positions, sending their children to crappy public schools, and the children of those Vietnamese or Korean immigrants kick ass on the SATs, get into a school like Berkeley, and end up successful. If that doesn’t fly in the face of aristocratic privilege, then I don’t know what does.

However, the “levelers” won’t hear it. Why? Equality of opportunity for individuals leads to inequality of results for those same individuals and inequality of results for groups of individuals as well.

Arguing America's Foundational Principles with a Paleocon Theocrat:

I am involved in an interesting debate regarding our founding and religion with paleoconservative intellectual Lawrence Auster.

It started by my replying to what I consider to be a very insulting post by Mr. Auster that argues that a homosexual “cannot be a good citizen in the fullest sense.”

I wrote:

I do have a problem w/ the notion that one cannot be a good citizen as a homosexual. And this is because our founding principles have nothing to do with orthodox Christianity. Our nation was founded on Enlightenment principles of Man’s Reason unaided by Biblical Revelation and these principles relegate religion to the private sphere of society. It is authentically American to view religious morality as a private matter.

Mr. Auster replied (this is an abridged version—go to his post to see the unedited one):

This is Mr. Rowe’s radically secular view of the way he would _like_ our government to be. But it is not in fact the accepted view of the American founding…So Mr. Rowe is falsely presenting his own view of the founding as though it were the general consensus. For him to believe that his own view is the agreed-upon consensus, he would have to be ignorant of everything that conservatives and Christians and even moderate liberals have been saying about the American government for the last 200 years, starting with George Washington’s first inaugural address….
But just to give one quote from Washington’s first inaugural, which, though Mr. Rowe professes to tell us the real meaning of the American founding, he has evidently never read:

”[I]n these honorable qualifications [i.e. the character of the members of Congress] I behold the surest pledges that … the foundations of our national policy will be laid in the pure and immutable principles of private morality.… I dwell on this prospect with every satisfaction which an ardent love for my country can inspire, since there is no truth more thoroughly established than that there exists in the economy and course of nature an indissoluble union between [private] virtue and [public] happiness; between duty and advantage; … since we ought to be no less persuaded that the propitious smiles of Heaven can never be expected on a nation that disregards the eternal rules of order and right which Heaven itself has ordained … “

That last phrase is the clearest expression of the idea of an intrinsic, transcendent, divine morality that it is man’s duty to follow. Washington began our national government with the unqualified assertion that its political well-being depended on obedience to objective moral truth, a moral truth, which, in the actual American context, not in Mr. Rowe’s fantasy secular America, is closely tied with Protestant Christianity.

To which I replied:

I have a number of problems with Mr. Auster’s analysis. I don’t get from reading Washington’s address that he was declaring that promoting traditional Christian morality is a matter of public policy concern. If Mr. Auster studied the philosophical underpinnings of the Founding (the writings of Enlightenment philosophers, most notably Locke), he would see that religion, under the new order, is a matter of “opinion” and not “Truth” as it was under the old—hence its status in the private sphere of society.

As Allan Bloom writes in The Closing of the American Mind:

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

One only needs to read VA Statute on Religious Freedom—which Jefferson penned and Madison fought tooth and nail to pass—where religion is exclusively referred to as “opinion” to see this point of view in action.

When Washington speaks to the connection between “happiness” & “virtue,” he seems to be giving advice on how best to achieve what one has the inalienable right to pursue. There can never be a right to “happiness” because this is, for some folks, unattainable. Washington seems to be saying that the happy life is the virtuous life. Let us assume that “virtue” is synonymous with traditional Christian morality (and this is a BIG assumption). Washington did believe that religion & morality go hand in hand and our founders did generally believe a religious citizenry to be superior to an irreligious one. But none of this changes the fact that our Founders separated Church & State and saw “religion” as purely a matter of “opinion” which government had no business touching. If religion is a matter of opinion, if the state has no business interfering with the “consciences” of private citizens, then the state has no business promoting or “touching” this kind of “virtue” in any way.

But the founders were free to give their opinions on how society ought to conduct its private affairs, but they are ultimately, private, not public concerns. This may be why in the Declaration we see the phrase “the right to ‘pursue’ happiness,” which seems to imply the right to get it wrong, to fail, to not live ones life in a way that will not lead to a happy life. Hence, Washington’s advice on how to get it right—even though the state has no business mandating the “virtuous” or the “happy” life for the citizenry.

Therefore, I disagree that Washington posited the idea that men had a public duty to follow “an intrinsic, transcendent, divine morality…objective moral truth [that is, for the most part, the same thing as] Protestant Christianity.” Our founders did indeed appeal to objective transcendent Truths in founding this nation—but they were not “religious” Truths. They could not be, because religion was “discovered” to be a matter of “opinion.”

Instead America was Founded on Enlightenment principles of Man’s Reason, unaided by Biblical Revelation. Even the notion of “Nature’s God,” written in the Declaration is a secular concept because it refers to God only insofar as He is understandable by Man’s Reason alone. These principles are the “Truths” upon which our public institutions are based. And, contrary to the claims of the cultural relativists, they are universal principles applicable to all people, everywhere. If Mr. Auster reads Washington’s words carefully, he will see that Washington uses terms and phrases like “Nature,” “Providence,” “Almighty Being, who rules over the universe, who presides in the councils of nations,” and even “Heaven,” but Washington rarely if ever uses explicitly Christian language when discussing “public” issues. As James Thomas Flexner writes, regarding this very inaugural address, “that he was not just striking a popular attitude as a politician is revealed by the absence of the usual Christian terms: he did not mention Christ or even use the word ‘God.’”

This is because there is no historical evidence that Washington was a Christian, other than in the most nominal sense. His words point more towards a Deist-Unitarian philosophy. As Paul F. Boller writes, “... if to believe in the divinity and resurrection of Christ and his atonement for the sins of man and to participate in the sacrament of the Lord's Supper are requisites for the Christian faith, then Washington, on the evidence which we have examined, can hardly be considered a Christian, except in the most nominal sense.” George Washington & Religion, Dallas: Southern Methodist University Press, 1963, p. 90.

Perhaps if Mr. Auster could base his case for the “public” promotion of a virtuous society on secular notions of “Nature” and “Reason,” then a stronger argument could be made—consistent with our founding principles—that the promotion of “virtue” is a matter of “public concern.” (This is the view of the followers of Leo Strauss). Ultimately, I don’t think that a strong case can be made here because the Enlightenment philosophy that founds our nation stresses “rights” over “duties” anyway (at least the term “rights” and not “duties” or “virtue” is what made it into the founding documents). And in order to find concepts of “nature” that support the public promotion of virtue we must go back to the pre-foundational (pre-Hobbsean-Lockean) Christian natural law of Aquinas, or to that of the Ancient Greeks (Aristotelian—Aquinas understanding of nature). And this is NOT the understanding of natural law that founds our nation.

Randall Terry Responds (or Founders, Philosophers, and the Trinity):

Randall Terry responded to my post. Here is his email in full:

Your read of history is political.

Almost all of the signers were Trinitarians (except Ben Franklin). Almost all were from an Anglican (Reformed Catholic) background.

To say that the God they were referring to was not the God of the Old and New Testament is a laughable, absurd fantasy...one that could only be constructed in recent times.

The most frequently quoted book in revolutionary literature was Deuteronomy.

The Phrase "the laws of Nature and Natures God" I.e., [sic] revealed Law and Natural Law, shows where they were at. Natural Law is a long and old body of thought from Catholic Philosohpers [sic] (and protestant as well) that speaks of the law written on all mens [sic] hearts...by the Judeo Christian God...the only God.

I have another piece coming out soon, called "CLoning [sic] Thomas Jefferson, and ignoring Dean Addell"

Look for it, you may learn something. You could also get the book, "Defending the Declaration" by Gary Amos. It is a very scholorly [sic] look at the Declaration from the eyes and writings of those who lived then...not now.

Thanks, and Christ's peace be with you,

Randall

I won’t reply here to every point he made because most what I disagree with in this reply is already answered in my original post. I will take aim at just a few of his many errors.

First, the claim that “[a]lmost all of the signers [of the Declaration of Independence] were Trinitarians (except Ben Franklin).” Many men signed the Declaration and I certainly don’t know the religious orientation of all of them, but the most important person behind the Declaration—its author Thomas Jefferson—not only did not believe in the concept of the Trinity, but referred to it as “insane.” The other men on the drafting committee included John Adams, Benjamin Franklin, Roger Sherman, and Robert. R. Livingston. Our second President, John Adams, was a Unitarian. Unitarianism’s defining feature is that it rejects the Trinity. And of course, Ben Franklin’s deism is well known (and acknowledged by Terry). Alan Dershowitz writes, “The religious views of Sherman and Livingston are less well known, though it seems likely that the former was a traditional Christian, while the latter was closer to Jefferson and had expressed religious views that have been characterized as ‘daring to the point of impiety.’” America Declares Independence, at 70.

One point I often hear apologists for the “Christian nation” idea make (after M.E. Bradford) is that there were only a handful of avowed deists at the time of the founding, the rest professed some type of orthodox Christianity. This is a distortion because, while the overwhelming majority of the founders may have been Christian in *some* sense, a great deal of our most important “Christian” founders were anything but the Jerry Falwell, et al. “born-again” fundamentalist types. Let us not forget, men like Bill Clinton and Howard Dean also are “Christians” in some sense.

And rejecting the doctrine of the Trinity is a good way to measure who is or is not an “orthodox” Christian (most born-again types that I know tell me that if you reject the Trinity, you are not a real Christian).

Let’s see how our first four presidents stack up relating to their views on the Trinity. Both Adams and Jefferson, our 2nd & 3rd respectively, clearly rejected the Trinity.

George Washington’s exact religious views are, in my opinion, not fully settled. One reason why this is so, is because he tended to be very silent about them. His silence is telling: Most “born-again” evangelizers are anything but silent about their religion (just look at how Terry ended his email to me -- any evidence of George Washington ending his letters with things like "Christ's peace be with you"?) Silence, in these matters, is more of a tell-tale feature of someone who either has something to hide, or something that he doesn’t want to wear on his sleeve. And many deists back in the day could not wear their “deism” or any kind of “non-orthodoxy” on their sleeves back then—especially the politicians. Jefferson was positively vilified by the forces of “religious correctness” for his non-orthodoxy. He was called, among other things, a “French infidel” and a “howling atheist.” A prominent reverend campaigning against Jefferson’s presidency stated that if Jefferson were elected, it would “destroy religion, introduce immorality, and loosen the bonds of society.” It thus becomes understandable why if Washington were a deist, as a man of great prudence, he would be silent about it.

So was Washington a deist? One of America’s most distinguished historians of religion, Edwin Gaustad, labeled Washington “a cool deist.” Washington, like many of the “Christian” founders, was well versed in Enlightenment teachings and commonly used Enlightenment terminology in his words. Washington, like Ben Franklin and other deists, characteristically referred to God as the “Grand Architect of the Universe,” and in other ways that could lead one to conclude that he was a deist. See Kramnick & Moore’s, The Godless Constitution, p. 101. In the New York Times, Kenneth Davis writes that, although George Washington attended religious services in the Episcopalian Church, he often left church before Holy Communion which is something that orthodox Anglicans did not do. Davis also thinks that Washington was a deist. I have not yet seen the evidence sufficient to unequivocally categorize him as a deist. But the evidence of his Trinitarianism is sorely lacking.

James Madison, our fourth President, may have been the first one to believe in the Trinity. His religious views appeared to be more conventional than say, Jefferson’s. But Madison was, like Jefferson, a strict adherent to the doctrines of secular government and separating Church & State, believing that the “purities” of both should never be mixed with one another. Now Madison didn’t always live up to this ideal as President. But when, for reasons of expediency, Madison could not keep with his ideals, he realized that this was a failure. For instance, under intense political pressure during the War of 1812, Madison, “recommended, rather than decreed, that religious denominations and societies ‘so disposed’ appeal to God for assistance in the war. There was no suggestion that failure to comply involved any public penalty.” The Godless Constitution, at 106. But Madison later regretted this decision. “In 1832, at the age of eighty-one, Madison conceded that it might not be easy to keep clear the line between religious and civil authority; he himself had problems with his war proclamation, he noted. All the more reason, then, he advised future generations, to take the strictest reading of the separation of church and state, 'an entire abstinence of the government from interference in any way whatever.'" Id.

Madison believed the way he did because he—like Jefferson and others—was a strict disciple of the Enlightenment liberals, particularly Locke—who gave us the “theoretical” or “epistemological” understanding as to why religion belonged in the realm of the “private” or “opinion” as opposed to the realm of “public” or “truth.” Locke and the other Enlightenment philosophers denied the Trinity (this shouldn’t surprise us—the philosophers believed first and foremost that Truth is ascertainable by Man’s Reason, whatever doesn’t comport with Reason cannot be the Truth, and the religious doctrines were true only insofar as they were reasonable. The Trinity was a doctrine that the philosophers had a big problem with on the grounds that it was not reasonable. Hence, Jefferson’s categorizing it as “insane.”) But the teachings of the Enlightenment philosophers were so appealing that even orthodox (Trinitarian) Christians eventually came to accept the Truth of their teachings, even going so far as incorporating Hobbsean—Lockean theory into their sermons.

For instance, John Witherspoon, a founder and former President of Princeton University, is often referred to as a “Calvinist” because he was a Presbyterian minister (and Calvin was the founder of Presbyterianism). He certainly believed in the Trinity. Witherspoon nonetheless was a Lockean. As Walter Berns writes, “Witherspoon could speak unreservedly of ‘natural liberty’ and ‘natural rights’; and of the ‘state of nature’ and like Locke…of its ‘inconveniences,’ inconveniences that caused men to leave it for the ‘social state.’ But in the same lecture he could admonish his listeners and readers to accept ‘Christ Jesus as he is offered in the gospel,’ for ‘except that a man be born again, he cannot see the kingdom of God.’ In a word, Witherspoon saw no conflict between the new political philosophy and the old religion, which is to say between the principles set down in the Declaration of Independence and what he understood as orthodox Christianity.” Making Patriots, p. 42. But Berns writes elsewhere that Locke’s state of nature teaching is wholly alien to the Bible. Thus, Enlightenment theory is not a Biblical ideology. At best, it’s perhaps (or not) compatible with orthodox Christianity. But it’s certainly not compatible with an understanding of orthodox Christianity that seeks to use the state to enforce the tenants of orthodox Christianity.

In sum, if our first President even to believe in the doctrine of the Trinity (and I'm still not fully sure that Madison did -- men imbibed in Elightenment theory as Madison was were likely to be highly skeptical of this doctrine) was a militant advocate of the separation of Church & State, this tells us that America was not founded by a bunch of Pat Robertsons and Jerry Falwells. I could write more. I want to talk about Roger Williams and the rationale put forth by orthodox Protestants for secular government. But that will have to come later. I’ve written enough already.

An honest theocrat:

No, Randall Terry is not the honest theocrat to whom I refer. In fact he is typical among the religious right who misunderstand the philosophy behind the Declaration of Independence, hence America’s founding. In this article where Terry continues to discuss the problem that he has with his homosexual son, Terry invokes the Declaration to argue that Biblical Christianity alone serves as the basis for not only private morality but also the “rights” that pubic policy must recognize:

But if there is a God who makes the rules, then He has imposed His morals on all of us, and we are obliged to obey and defend those ethics in the public square.

The Declaration of Independence declares that our rights come from God. It also declares that Laws come from God, and that God is the Supreme Judge of the Universe. We do not get to pick our rights, nor the laws that govern our behavior, nor the standards by which judgments are to be made by us and the Almighty concerning the behavior of men and nations.

Rights, Laws, and Judgments come from our Maker – not us, not the state. It can never be a "right" to have a homosexual marriage, any more than it can be a "right" to murder our offspring, because God did not give us those rights, and they violate the rules He made.

What Terry doesn’t understand is that the “Creator” who grants us rights under the Declaration, as Walter Berns writes, “is ‘Nature’s God,’ not…the God of the Bible, whom today 43 percent of Americans…claim regularly to worship on the Sabbath. Nature’s God issues no commands, no one can fall from his grace, and, therefore, no one has reason to pray to him asking for his forgiveness; he makes no promises. On the contrary, he endowed us with ‘certain unalienable Rights,’ then left us alone, and with the knowledge, or at least the confidence, that he will never interfere in our affairs.” Berns, Making Patriots, page 32.

I understand how religious conservatives, or anyone who has not carefully studied the philosophy behind the Declaration, conclude that the “Creator” mentioned in the Declaration is the God of the Bible. It makes it far easier for orthodox Christian to accept the very un-(orthodox) Christian “rights-oriented” philosophy of our founding if they believe that the Biblical God in fact grants us rights. But this belief is “wrong as a matter of doctrine—where does the Bible speak of unalienable natural rights…?” Id. at p. 42. Ultimately, this misunderstanding may have been key in selling the notion of unalienable rights to a (soon to be) nation (technically we were a bunch of colonies) where orthodox Christians comprised a fairly significant portion of the population and where institutional religious forces held a great deal of power.

Terry, based on his fairly strong knowledge of the history of religious thought, nonetheless makes an error (a very interesting one) when he writes:

I contend that we must speak of the Almighty in the tones and the language of America's founders. Read the Declaration of Independence again. When they discussed God and Truth in reference to public policy, they sounded very catholic (universal) in their references to God, not like fundamentalists quoting chapter and verse from the Bible.

If Terry were familiar with many of the things that the founders had to say about Catholicism he would realize that the last thing they wished to do while writing the Declaration was sound like Catholics. But here is why Terry makes this error: Catholics have their “natural law” tradition, via Aquinas, where rules of morality are "discovered" using man’s Reason alone. Man as man, looking to nature, through reason alone, discovers not only what is, but what ought to be. Aquinas of course was simply incorporating the teachings of Aristotle (some say it was a “misincorporation” or a “bastardization” of Aristotle) into the Church's teachings. And ultimately, Aquinas concluded that the natural law justified all of the Catholic Church’s dogma.

Our founders—or I should say that the Enlightenment liberals whom our founders followed—also turned to “nature” or to “Man’s Reason unaided by Biblical Revelation” to come forth with the principles of natural and political right which our nation is founded on. And the intellectual ancestry behind our founding philosophy, like the Catholic Church’s natural law teachings, ultimately traces back to Ancient Greece for its origins. The two, as Randy Barnett puts it, “shar[e] a common intellectual ancestry and methodology….” The "methodology" that Enlightenment natural right and Catholic natural law share is that both theories are organized under the rubrics of “nature” and “reason.” Thus, it can be very easy to conflate these two very different philosophies, using these two terms. (This is something that the Claremont Institute specialized in.)

But what was unique about Enlightenment philosophy, especially Locke’s (whose ideas Jefferson lifted in writing the Declaration), was that it intended to break with both the Christian and classical understandings of nature (with their emphasis on “public virtue,” on “duties” as opposed to “rights”). As scholars Isaac Kramnick and R. Laurence Moore write, “Two thousand years of thinking about politics in the West is overturned in Locke’s writings, as the liberal state repudiates the classical and Christian vision of politics.” The Godless Constitution, p. 73

Finally we get to our honest theocrat. Thomas Fleming of Chronicles Magazine is not only an orthodox Christian, but is a conservative of the most extreme nature: a neo-confederate paleo-conservative. As such, I disagree with him on many, many policy issues. But he understands America’s founding in a way that the Christian Right revisionists who argue that our founding and its documents are based on “Biblical Christianity” do not. Sometimes we get refreshing honesty from those folks who are so extreme they are willing to buck any kind of convention, even in their own circles.

Regarding America’s “Christian” founding, Fleming writes:

It is a pretty fiction, and one that I would like to believe. The American founding is a complex story, and there were many Christians among the leaders in the seceding states. However, neither the leaders of the Revolution nor the principal authors of the Constitution were, for the most part, devout and orthodox Christians. Most of them were, like their counterparts in 18th-century England, deists and Unitarians. Washington and Jefferson were nominal Anglicans; Adams, a Unitarian Congregationalist; Franklin, a hedonist and mocker; Tom Paine, an open atheist. They had all been inducted into freemasonry, which, even in its most benign form, is incompatible with orthodox Christianity.

Moreover, Fleming (like Robert Bork) realizes that the Declaration of Independence does not reflect an orthodox Christian worldview and it would be wise for such Christians to downplay this document’s historical significance:

If Dred Scott is a slender reed for conservatives to rely on, the Declaration of Independence is a morass. Whatever Mr. Jefferson and his colleagues thought they were doing (other than restating Enlightenment platitudes that have nothing to do with Christianity), they were not writing the fundamental law of a nation that did not yet exist. If they had been intending to establish Christianity at the center of the American system, they would have used Christian language instead of such deistic phrases as “Nature’s god.” Although some conservatives have made valiant efforts to give the Declaration a harmless reading, Harry Jaffa and other leftists have ensured that the Declaration is read today as a revolutionary manifesto for natural rights that transcend the pettifogging restrictions of the Constitution and the Tenth Amendment, guaranteeing the rights of the states.

Thank you, Mr. Fleming. More honesty among religious conservatives like this is welcome.

Volokh evidences the existence of “merit”:

Eugene Volokh actually statistically demonstrates that, in all likelihood, students who get better grades on law school essay exams (or at least his exams) actually write better exams. In other words, he demonstrates that there likely is a great deal of objectivity when it comes to grading law school essay exams.

When I was in law school, students, and even many professors, argued that the grading process was “subjective,” meaning that grades in law school really didn’t mean much of anything other than whether the professor was in a good mood on the day that he or she graded your exam (and what does it say about the professors that they would argue that their own grades don’t mean much?).

All of this, of course, was a big attack on the notion of meritocracy. Not everyone graduates with honors, and yes, some folks have to graduate at the bottom of the class. Moreover, (and also very important as to why meritocracy is attacked) grades aren’t “statistically” proportioned among all “groups”; some “groups,” as a whole, get better grades, on average, than others.

Attacking pretty much any notion of meritocracy is just part & parcel of what it means to be a politically correct bleeding heart EGALITARIAN law student or professor.

I myself am skeptical of these attacks on meritocracy. I tend to believe that the students who get the better grades on the exams actually wrote better exams (not that they were necessarily smarter) and, if you wrote enough good exams such that you attained a good GPA, then you are probably a better student and likewise probably (for good reason, I italicized that term both times that I wrote it) would make a better lawyer than someone with a lower average.

Now, one problem with these generalizations is that while I think the generalizations are accurate, they nonetheless are generalizations—meaning that they tell you, more or less, what is likely, rather than what—to an absolute moral certainty—will be. But absent a crystal ball, we will never know what will be.

In other words, it’s entirely possible—and I’m sure there are many anecdotes that can be given to me that illustrate this—that someone who graduates law school at the bottom of his class, doesn’t serve on a journal or do anything to distinguish himself, fails the bar one or more times—may turn out to be a spectacular attorney. And likewise it’s entirely possible that someone who graduates at the top of her class, makes Law Review, passes the Bar exam on the first try, may turn out to be a total disaster in the real world. But this doesn’t mean that such merit criteria are meaningless. Such criteria are useful insofar as they help to PREDICT (that’s the magic word) who the more competent lawyer will be. And unless we get a perfect “one” as a correlation between our evaluative merit criteria and success on the job (which never happens—that’s our crystal ball standard), there are always going to be exceptions to the rule.

But we err when we conclude that the existence of the exception, or of many exceptions, destroys the rule. In other words, if I were to make the claim that grades, honors status, Law Review, etc. do mean something, I will likely get the egalitarian response, “well I knew X, and she was Ms. Perfect student and turned out to be a disaster,” or “Y failed the bar twice and then she became a superstar….” That these exceptions exist do not prove absence of predictive validity regarding evaluative “merit” criteria. Such critics of merit criteria like Lani Guiner would have to demonstrate that there is a “zero” correlation between traditional merit criteria and success as an attorney.

Let me close with an actual example from my law-school. When I attended Temple University's School of Law, we had a sub-par Bar passage rate as compared to other colleges of similar reputation (we no longer do—and on an interesting side note, as law school admissions have gotten more competitive since I graduated in 1999, Temple’s average LSAT admit score raised—and our bar passage rate increased with our increase in LSATs—thus a correlation between LSAT scores and Bar passage rates for our school exists). So the Dean, in his concern, studied the issue. He found that those graduating in the top third of the class had roughly a 90% passage rate (which is very good), and there was a significant drop for the middle third, and the bottom third of the class had an extremely poor passage rate. In other words, there was a correlation between GPA and passing the bar. But it wasn’t a perfect correlation—it’s possible to point to an example of that 10% in our top third who FAILED the bar and there were many folks in the bottom third who passed the bar as well. But these exceptions don’t disprove the accuracy of the generalization, “the students who do better in law school tend to be better bar testers as well.”

Added new pic:

If anyone has not recently checked, I have added a new pic. The old one was a little dated (it was sorta a half-joke -- didn't really accurately project my image). This one was taken last year.

Uh...Wasn't this settled in 1865?

And there's now way in Hell that you are going to get South Carolina. Still, it would be very tempting to make a deal where we could get rid of Alabama...very tempting indeed.

Finding Common Ground with Cal Thomas:

I find some common ground with Cal Thomas here. He argues that the gay marriage debate is over and the pro-gay marriage side has won:

"Pro family" groups have given it their best shot, but this debate is over. They would do better to spend their energy and resources building up their side of the cultural divide and demonstrating how their own precepts are supposed to work. Divorce remains a great threat to family stability, and there are far more heterosexuals divorcing and cohabiting than homosexuals wishing to "marry." If conservative religious people wish to exert maximum influence on culture, they will redirect their attention to repairing their own cracked foundation. An improved heterosexual family structure will do more for those families and the greater good than attempts to halt the inevitable. A topical solution does not cure a skin disease whose source is far deeper.

True. Divorce, adultery, and especially out of wedlock births by young single parents who are not able to support the children they have, are far greater threats to the stability of society than gay marriage—or anything done by homosexuals—ever could be.

This isn’t the first time I have found common ground with religious conservatives—and for all of the time I spend criticizing the “religious right” on this website, I’d like to find common ground, workable solutions to these divisive culture war battles. And such ground usually boils down to one word: libertarianism. The libertarian solution seeks to maximize the private, minimize the public, and protect freedom of association & property rights, and otherwise apply public rules in a “neutral” way where no one group gets any favorable treatment vis-à-vis any other. No double standards—a rule on race must apply equally to blacks & whites alike. Similarly, “Christian fundamentalists” as a social group should be treated no better or no worse than “gays.” Unfortunately, the pervasiveness of anti-discrimination laws in private, and the un-likelihood of their repeal any time soon, makes the implementation of this ideal unrealistic in the immediate future.

But regarding religion, politics, & society, as long as religious conservatives have the right to practice their religion, establish their communities, and exclude whomever they want from their churches (in other words, I’d like to see these religious groups be given absolute protection, but in the private sphere of life) and as long as gays, and other folks who have a different worldview are accorded the same rights under a neutral set of rules that favors no one particular group, then I think we could peacefully coexist in the same nation.

And Cal Thomas previously had written that it’s a good idea for orthodox Christians to get out of politics, (perfectly consistent with Jesus’ statement “my kingdom is not of this Earth”) and attempt to affect society by living their lives in a moral way, and by providing good examples of healthy vibrant communities. And I am all with him there.

The problem to my libertarian solution, however, is two-fold. First, the state has so much power and is so large, that various “groups” (or “factions” as our founders put it), just can't seem to help but vie for “state power” to enforce their interests against everyone else. And many of these “factions” are associated with the Left—“racial” and "ethnic" groups, “feminists,” the “disabled,” and many others, including of course, “gay” groups. And this “enforcing your interests to the detriment of the freedom of others not in your group” is done through the use of anti-discrimination laws, and various other organs of the state.

Eugene Volokh gives a prime example of this where under a Seattle anti-discrimination ordinance, a small business owner—a printer—was sued for refusing to print invitations to a gay wedding. Now many on the Right would use this as an example of how “sexual orientation” discrimination laws threaten freedom. But ALL anti-discrimination categories that apply in the private sector have the capacity to operate like this.

The second problem is that the religious right doesn’t want to accept the libertarian compromise. Like the other “factions” (mainly associated with the Left, but the Right has its factions as well), the religious right wants in on the game; they want to use the organs of the state to force their worldview down the throats of society—if it’s good for the goose, it’s good for the gander. And their argument goes something like this: “America was founded so that we could force our worldview on society—not so leftists could force their worldview on us.” But that simply is not true. As I, and many others, have pointed out, this nation (at least our public institutions) was founded as a “secular,” not a “Christian,” entity.

One complaint that I often hear from the religious right is how “hate-crimes” statutes—which they mean, only those that include the category of “sexual orientation”—threaten their freedom of speech, that by simply “criticizing” homosexuality based on their Biblical beliefs, they could be prosecuted under such statutes. And they point to the example of Dr. James Dobson being thrown off the air on certain stations in Canada under their “human rights laws.”

But then these same religious conservatives jumped with glee as the Bush administration started to use the “axe” of the FCC to go after Howard Stern and other forms of public broadcast which they find “offensive.” Fine, let’s let the FCC issue $500,000 fines against Stern and chase him off the air. And then when a leftist administration comes into power and that “newly sharpened” FCC axe, complete with the half-million dollar fines, starts to go after religious conservative broadcasters for “hate-speech,” don’t expect me to shed a tear.

Let’s keep one thing in mind: James Dobson wasn’t the only person who got in trouble under Canadian broadcasting rules. The exact same Canadian statute under which Dobson was punished was also used to punish, yes, Howard Stern. Stern, no racist in my opinion, sometimes makes off-color racial jokes (as he does about EVERY other social group—he’s truly an equal opportunity offender). The same Canadian statute that prohibited “offensive” broadcasts on the basis of “sexual orientation” also prohibited such broadcasts along many other categories, including “racial & ethnic” groups, which categories Stern got in trouble on.

When I talk to religious conservatives about the libertarian compromise, I usually frame the hypothetical question this way: If you were guaranteed the absolute right to practice your religion, speak your mind on any issue, say anything you want publicly about homosexuality and never fear prosecution, or any type of state enforced persecution—in other words, “to be (absolutely) left alone”—but in order to get this protection, these same rights must also be granted to hard core pornographers, would you take this deal? And I usually get a look or a response like I’m the Devil.

Update on Interviews & Pat Buchanan -- anti-American values:

Interviews: Two down, one to go. I feel confident. But then again, these positions are uber-competitive.

And here, Pat Buchanan lets it be known that he has more in common, culturally, with those Islamofascist, than he does with modern America.

He writes:

But even John Kerry does not agree with George Bush on the morality of homosexual unions and stem-cell research. On such issues, conservative Americans have more in common with devout Muslims than with liberal Democrats.

Very telling. The reason why we are fighting this war is to defeat terrorism and to spread "democratic values" in the middle east (and the big question that I haven't fully resolved myself is whether those values, even though they are universally applicable, can be, or should be, spread at the point of a gun).

When Buchanan writes, "devout Muslims," I presume he means those Muslim men who would sequester their women, force them to wear burkahs, execute homosexuals, and put a "Fatwa" on the head of Salmon Rushdie (the Islamofascists).

Those "democratic values" that we are fighting to spread -- values implied in America's founding -- are, in many ways, antithetical to the religious right's worldview, just as they are to the worldview of the Islamofascists. Kudos to Buchanan for recognizing this.

Historic day for equality:

I am glad that this day has come so young in my life. And coincidentally on the 50th anniversary of Brown v. Board of Edu. Now I realize that these two circumstance are distinguishable from one another in many meaningful ways. But they do have one obvious thing in common: Equality. Tremendous victories for equality.

Light Blogging over the next two weeks:

Why? I have three, count 'em three, interviews for full-time teaching positions (simply getting an interview in this field can be a challenge) scheduled over the next two weeks (one in Connecticut, one in Massachusetts, and one in New Jersey).

Randy Barnett is Wrong this time!

Wow I’m shocked. I thought I agreed with every word he ever wrote. He writes that, while the Free Exercise Clause of the First Amendment does secure a natural liberty right, he doesn’t think that the Establishment Clause, as originally understood, did so:

In contrast, the Establishment Clause of the First Amendment describes neither a natural liberty right or "immunity," nor a positive individual right or "privilege" of citizens. It is simply a limitation on the power of Congress simpliciter. Therefore, the plain and original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment has no relevance to the state establishment of religion. State endorsements of religions are not unconstitutional (although I reserve judgment on the propriety of using a general tax to subsidize religion without any opt-out).

I am open to being convinced that I am wrong about this. Indeed, given my commitment to the separation of church and state, I would WELCOME being convinced that I am wrong….This is not, after all, a liberty issue. A religious establishment tells no one what they must do or must not do (unlike "blue laws," for instance, that do). To obtain the legally enforceable separation of church and state at the state level that I strongly desire would require a constitutional amendment.

Wrong Mr. Barnett, the Establishment Clause, every bit as much as the Free Exercise Clause, describes a “natural right” or immunity—that of “conscience.” Separation of Church & State is mandated in order to respect the natural rights of conscience for all of the citizenry. Liberty of conscience was arguably the most important—the most inalienable if you will—right that our framers were concerned with. And both the Free Exercise Clause AND the Establishment Clause were necessarily included in the Constitution to secure this right.

Under our original constitutional scheme, only the federal government was restrained from violating natural rights (or at least, the federal government didn’t have the jurisdiction to enforce natural rights against the states, rather it was hoped that the states, on their own accord, would respect natural rights).

Madison, in fact, desired that the federal government enforce certain natural rights against state governments—particularly he favored that states be forbidden from violating the “equal rights of conscience.” Here is the language that Madison originally proposed for the First Amendment:

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.

However, we need to know what it meant that, “no state shall violate the equal rights of conscience....” Jefferson and Madison, first and foremost, believed that a state having an officially established church violated the natural rights of the citizenry. Madison specifically stated that the rights of conscience could not be secured unless there was a “perfect separation between ecclesiastical and civil matters.” And of course, Jefferson had his famous, “wall of separation...,” phrase.

But if we want to see in detail an example of a state that, voluntarily on its own accord, respected the natural rights of conscience, and what that meant, we must turn to Virginia—specifically to the Virginia Statute on Religious Freedom, penned by Jefferson and pushed through by Madison.

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.”

Now, Randy Barnett has claimed that these norms of “disestablishment” are NOT natural liberty rights. (And yes, I realize that this statute can be confusing because it mixes the norms of "disestablishment" with those of "free exercise." But this just proves my point that these two clauses are inseparable and both together secure the natural rights of conscience). The statute contradicts his claim: “[W]e are free to declare, and do declare, 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.”

Finally, let me quote Walter Berns—if there ever were an “anti-libertarian/social conservative,” Berns is one—on this issue. Berns disagrees with the Everson decision—the decision that first recognized the Establishment Clause as binding on the states—but he does so for very different reasons than Barnett:

Previously, everyone having anything to do with the subject understood that the prohibitions of the First Amendment did not apply to the states, and that to change this would require a constitutional amendment. This was Madison’s view. During the debates in the First Congress on the amendments that became the Bill of Rights, he proposed an additional amendment—he thought it the "most valuable amendment" in the list—forbidding the states to "violate the equal rights of conscience." After being adopted in the House of Representations (where Madison served), the proposal went down to defeat in the Senate…But what Madison could not do in 1789…a divided Supreme Court…effectively did in the 1940s.

Making Patriots, pp. 73—74.

Berns rejects Everson's application of the Establishment Clause to the states because he rejects the doctrine of incorporation and he specifically rejects the notion that the Federal government generally has the power to enforce natural rights against the states, (unless of course, there is very specific textual positive law authority for doing so—for instance, Berns would argue that the 13th, 14th, & 15th Amendments do give the Federal government the power to make sure states respect the equal natural rights of blacks—but in that specific circumstance only). But Berns is stating that if the federal government did have the power to enforce the “equal rights of conscience” against the states, then Everson would have been correctly decided.

More on Sandefur on Jeffersonian Ideals:

Sandefur has some excellent posts responding to Southern Appeal’s Owen Courreges’ attacks on his originalist defense of Lawrence. He rightly notes that those who cite Jefferson’s participation in rewriting the Virginia criminal code as “debunking” the notion that Jeffersonian principles could have lead to the outcome in the Lawrence case are not putting that statute into the appropriate context that is needed.

There are strong grounds to believe that when Jefferson referenced “sodomy” he was not referring to two adults having completely consensual relations in private—that “sodomy” likely meant non-consensual behavior generally, and non-consensual behavior with underaged boys particularly.

I too have written before that the overall context of Jefferson’s bill —that he notes “sodomy” to be equally unnatural to “bestiality," but then decriminalizes the latter and groups “sodomy” with rape—suggests that in proscribing "sodomy," he did not have in mind “sending armed agents of the state into peoples’ bedrooms to drag their loved ones from their arms.”

But even still, Jefferson was one who believed that as future generations acquire more knowledge, their opinions would change and become more enlightened, and that “laws and institutions” must change with evolving circumstances to “keep pace with the times.” Specifically, the notion that homosexuality is more similar or analogous to bestiality than it is to heterosexuality is an obvious error in reason. And if Jefferson were alive today and had the chance to observe folks in long term committed same sex relations, I’m sure he would agree every bit as much as he would agree that Albert Einstein’s science corrected the errors of Newton's.

And it’s also important to keep in mind while Jefferson did integrate some of his “reforms” into this bill (making it closer to his ideal preferences) that statute by no means represented an “ideal Jeffersonian criminal code,” but rather was, as Sandefur has written, “a revision of a preexisting legal code, and which was written in order to pass a legislature full of men who were not exactly in line with him intellectually.” Jefferson did tell us that his Virginia Statute for Religious Freedom represented his ideal thoughts on how religion and government should be situated with one another—he thought that Statute to be among his greatest accomplishments, on par with his drafting of the Declaration of Independence. There is no evidence that he thought his participation in rewriting the criminal code—a statute which punishes “witchcraft, conjuration, enchantment, or sorcery, or…pretended prophecies…by dunking and whipping, at the discretion of a jury, not exceeding fifteen stripes”—to be as important a feat in his life as his drafting of the Virginia Statute for Religious Freedom or the Declaration of Independence. Undoubtedly, he didn’t.

Yes, Virginia, Evil does exist:

Those sick f*cks.

Sigh:

Since I was teaching last night, I had to miss Yes, who played in Philadelphia. Oh well, I'm sure they'll come around again. Three years ago I was teaching when Yes and Kansas, who were touring together, played in Philadelphia. I've since seen Kansas a number of times, but not yet Yes. I hope I am free when Rush comes to town.

Fisking Clayton Cramer (or why this nation was not founded on Christianity):

Yes, well, Mr. Cramer rather has his hands full being repeatedly Fisked in the blogsphere—but, let me point out that Ed Brayton has replied to Cramer’s post, where he attacks me and Brayton for daring to claim that the United States was founded on secular principles, and that many of the quotes by our founding fathers demonstrating otherwise are simply false. And Brayton gives Cramer the Fisking that he deserves. Cramer trotted out various state constitutions, all written before the US Constitution was ratified, and all of them basically establishing some form of Christianity as the official religion of the state, requiring religious tests for public office, etc., or otherwise integrating Church & State in a myriad of ways.

Brayton explains why all of this does not prove that the United States was originally conceived of as a “Christian Nation,” meaning one whose public institutions and principles, are “founded on Biblical Christianity,” or one that otherwise was “publicly” (government) as opposed to “privately” (culture) Christian:

Something obviously changed between 1777, when the Continental Congress finished writing the Articles of Confederation, and 1787, when they wrote the Constitution. What was it? Well for one thing, a powerful movement for disestablishment of state churches had begun, fueled largely by events in Virginia in 1785-1786. The Act for Establishing Religious Freedom, written by Jefferson and pushed through by Madison while Jefferson was serving as our ambassador to France, was an enormous victory for the forces of church/state separation, and Madison's powerful defense of disestablishment and separation, his Memorial and Remonstrance, was widely distributed among the several states thereafter. The first amendment's religion clauses, which established the principle of separation at the federal level, were modeled directly on the ideas found in that bill. With the passage of the Bill of Rights, the movement to disestablishment grew stronger, and by 1833, all of the original 13 states had done away with their official religious establishments, though some vestiges of that earlier era can still be found in unenforced and unenforcible language in some constitutions.

For some reason, Cramer seems to want to freeze frame a time period before the passage of the US constitution, which was an enormous sea change in the relationship of state and church in a thousand ways, and pretend that documents from that time show the conception of the constitution more accurately than the constitution itself. And remember, the advocates of establishment greeted the constitution with howls of opposition, calling it a godless document that would bring down the wrath of God upon us all. Clearly, this was a major change from the conceptions of government found in earlier documents, not only around the world but within the states themselves as well.

Let me point out that every single state constitution that Cramer refers to as requiring declarations of belief in the Christian religion to hold public office, or otherwise integrating Church & State in various ways, violated—according to the views of Jefferson, Madison and others—the inalienable right of “liberty of conscience,” as much as slavery violated the equal rights of black persons. When we declared our Independence in 1776 by appealing to “inalienable rights” of life, liberty, & the pursuit of happiness, the right to “conscience” was arguably the most important specific right contained within the general inalienable right to liberty that our framers were concerned with. Those state constitutions that Cramer refers to were as anathema to our founding principles as was slavery. Those state constitutions, in many ways, represented the “old” traditions of the West, as did slavery, serfdom, & divine rule of Kings. The principles espoused in the Declaration, in many ways, represented a radical break with tradition. And as with slavery and those other things that I mentioned, those state establishments of religion had to go. It was a matter of when, not if. And, as Brayton points out, within a relatively short period of time (1833), they all did.

Owen misunderstood (or misrepresented) what I wrote:

Owen from Southern Appeal has responded to my original thoughts on this 9th/14th Amendment controversy. He begins on a note of agreement:

The Constitution does indeed contain timeless ideals, but they are timeless because they are specific concepts that can be adapted to changing circumstances. Thus new forms of weaponry don't necessarily change the meaning of the Second Amendment, and nor do innovations in communication chance how we view the protections guaranteed by the First Amendment. However, the basic concepts themselves remain intact. Otherwise, they would devolve into incoherency.

Jon seems to recognize this, but then his argument degenerates into something which justifies the "living document interpretation" (a fact which he vigorously denies):

I think I can anticipate Clayton Cramer's response: The Framers may not have known of the existence of condoms, DVDs, machine-guns or the broadcast media, but they did know that "sodomy" existed. Therefore "sodomy" is not an "unforeseen circumstance" that could not have been dealt with. But what of changes in attitudes, values, knowledge, or the "rethinking" through certain "ideals" in way different, but perhaps broader and more consistent, than the framers' original contemplations?

Owen then writes, “Yes, what if we 'rethought' the notion of habeas corpus? Or of free speech? Why, we can abolish the entire Bill of Rights if we want to!?”

Now let’s read what I wrote very carefully: When I wrote, “rethink through certain ‘ideals’ in a way different…” I immediately followed it, with “but perhaps broader and consistent than the framers' original contemplations.” Maybe I needed to choose my words more carefully. If I am the source of the confusion, then I apologize. When I used the term “different,” I meant applying the SAME rule (free speech, equality, free exercise of religion, for examples) in a way that the framers might not have conceived of at the time. I didn’t mean throwing out the rule, or coming up with a new rule—I favor not only following the rules that the framers came forth with, but expanding their application, making them more universally apply today, than they did at the time these rules were enacted. For instance, when the framers wrote “all men are created equal,” perhaps they meant only males. I would take the same principle: “equality” and apply it to females as well. That is, if we logically think through why the framers concluded that all males are created equal and apply their rules and their logic, we might also rightly conclude that all females are created equal and that females are equal to males in their possession of rights as well.

To give another example, when the framers wrote the word, “religion,” some of them only meant “Protestant sects,” others—Jefferson & Madison—for instance, meant all religions. I side with Jefferson & Madison’s universal application of our religion clauses.

Thus the conclusion that Owen draws from my post, that my logic warrants, “throwing out the Bill of Rights entirely,” is precisely the opposite of what I argue for. My logic takes the Bill of Rights and seeks to broaden its application in ways that perhaps the Framers did not “subjectively” contemplate. But they did, I think, objectively realize that future generations would do this. In fact, they gave future generations a green light to rethink the applicability of these ideals by writing them in such broad and general language.

Let me go on record as stating that I believe that every single word in the Declaration and the Constitution is controlling law. I believe in the integrity of the constitutional text and do not believe that we may properly throw out one word. When we start cutting out pieces of the Constitution—that, to me, makes it into a “living document.” And that’s exactly what the leftists have done with the 2nd Amendment and it’s exactly what Judge Bork has done with the 9th and the Privileges or Immunities Clause of the 14th.

Owen writes further:

You see the problem. Jonathan tries to draw a connection between "unforseen circumstances," such as technolgical innovations, and changes in popular moral philosophy. However, technological innovations are matters of fact. We have television, radio, and the internet, and we didn't have them before. Accordingly, they have to be integrated into the First Amendment with a mind for the ideal it represents. Similarly, we have to consider that the word "arms" in the Second Amendment wasn't accounting for devices of global destruction, and so the hydrogen bomb probably shouldn't be owned by a militaman in Utah. And that's still consistent with the Second Amendment.

However, if we were to decided, today, that free speech wasn't really as good a thing as the founders thought it was, we would have one of two choices: 1) pass a constitutional amendment overriding the First Amendment, or 2) accept the fact that that the founders disagreed, and that the Constitution is still legally-binding. We shouldn't, however, have the option of ignoring the First Amendment simply because our ideals have changed, or our interpretations of basic concepts have changed. If that weren't the case, then we'd no longer have a Constitution at all.

Now that Owen understands my position, he realizes that I never argued that we could ignore or throw out one letter of the Constitution. I agree with him completely that as long as the First Amendment is on the books we MUST have “freedom of speech,” ditto with the Second. However, I believe, and I think Owen does too, that “freedom of speech” can be applied in a way different—and by that I mean broader, more universal—than many or most of the framers of that document perhaps intended, or planned that it apply at that time.

Speaking of Freedom of Speech—I wonder what Owen thinks of how this Amendment should be interpreted. Using the same “original intent” logic that he and Cramer use, we may rightly conclude that the founders intended (at least for their time) a much narrower application of that wonderful ideal than we have today. And no, I’m not just referring to hard core pornography. I had a professor in law school who had a conservative jurisprudence similar to (although not exactly) Owen’s, & Clayton’s (and I cherish the experience in his class—we desperately needed the ideological diversity). He would argue, if you want to determine how the framers thought these rules should be understood, look at what they did. Look at the actions they took when those rules were enacted. Look at how they behaved. That is, if the Framers ratify X, but they immediately do Y, then we should conclude that Y is compatible with rule X. The same framers who gave us the First Amendment’s free speech clause also gave us the Alien and Sedition Acts. That ACT allows for the criminal prosecution of POLITICAL speech. Therefore, my professor concluded this act must have been constitutional—consistent with the free speech clause. So what was the First Amendment norm that he derived? Free Speech means that government cannot enact prior restraints on speech. Government can punish anything they want after the fact. If you don't like it, vote them out.

I wonder if Owen thinks this to be the “proper” understanding of the First Amendment's free speech clause, or if he, like me, favors a broader and more universal application of this timeless ideal.

I love these conservatives: The Constitution and the Declaration are both written in such magnificent language, lauding wonderful ideals in a very broad way. But then when we look at historical practice—look at how the Framers, in practice, dealt with things like “religion,” “equality,” “free speech,” “liberty,” “the pursuit of happiness,”—these conservatives reply the Framers' subjective intentions suggest that they really didn’t mean it, or that they really didn’t mean much—they meant these broadly enunciated rules to apply only to a wee number of circumstances. And you know something, I’ve seen leftists—I’m thinking the “critical legal theorists”—come to these exact same conclusions. But they do so to nauseate lawyers away from the concept of “original intent,” ala Bork and Scalia. "Yeah the framers intended equality to apply only to white, Protestant, propertied males," these leftists will claim (my same conservative professor informed us that both the Establishment and Free Exercise clauses were intended to apply only to Protestant sects—and he was a Catholic!). "Free speech only meant prior restraints." The basic message that my constitutional law professor (not the conservative; the guy who was my general con law professor is a leader in the critical legal studies field) gave to us regarding "original intent" was “What a bunch of assholes the Framers were!”

I consider myself a Madisonian, Jeffersonian originalist. These men posited wonderful ideals even if they always didn’t consistently apply, or live up to them. If I am guilty of anything, it’s wanting Madisonian & Jeffersonian ideals to apply to more folks and more scenarios than perhaps these men originally (subjectively) contemplated would be done in their own time.