Sunday, July 31, 2005

Article on Paul Cameron:

Brayton tipped me off to this article about Paul Cameron. It's quite good. He is still disseminating false and misleading information about gays in the form of schlock studies. No reputable peer reviewed journals will publish his work so he finds some penny-ante journals or groups with legitimate sounding names (such as "American College of Pediatricians" and "Psychological Reports") but who in reality are the equivalent of what mail-order degree colleges are to real colleges. And gullible members of the religious right then cite his work as if they have "real ammo" against gays.

It boggles the mind. Cite Kinsey and many religious conservatives will shriek about the problems with his work, but then they will suggest replacing Kinsey's work with the "research" of Paul Cameron and Judith Reisman. As I have said, this reminds me of what Jesus said about being concerned with the mote in your neighbor's eye while ignoring the log in your own!

My favorite part of the article:

Cameron's work is controversial even among conservative groups. For example, the Traditional Values Coalition claims to speak for 43,000 churches. For three years, the coalition has quoted Cameron's studies on its website in an article headlined, "Report Shows Homosexual Foster Parents Apt To Molest Children," and has told its membership to "read and distribute Dr. Cameron's report."

But when The Boston Globe asked the Traditional Values Coalition last week about Cameron, the group responded within minutes by removing all references to Cameron from its website. The group's spokeswoman, Daniella Lopez, said Cameron's research had been "mistakenly" put on the website. She would not say why the group thought it was a mistake to publicize Cameron's research.

Saturday, July 30, 2005


Thanks to Rick Garnett over at Mirror of Justice for the link to my essay post (responding to a post of his) on liberal democracy endorsing the *right* kind of religion.

Thursday, July 28, 2005

What kind of religion ought to support liberal democratic government?

Rick Garnett has a pretty profound post on government endorsing the “proper kind of religion.” His post illustrates two competing schools on religion and government in the Enlightenment thought that founded America. On the one hand we have Madison’s ideal view that government in no way should ever take cognizance of religion, a very high and lofty ideal, one in which Madison, as a public official did not always live up to. On the other hand, we have the view posited by Washington and Adams, arguably a more dominant view than Madison’s, that because religion is important for virtue and keeping the civil order, government can be more involved in promoting religion in general, so long as government endorses “the right kind” of religion.

Here is Garnett:

On the one hand, it seems hard to deny that liberal governments have a strong interest in the content and development of religious traditions and doctrines. (I wrote an article about this interest a few years ago). In fact, it seems to me that liberal governments have an interest in convincing people -- whether they belong to the religion in question or not -- that the religion in question really teaches in accord with liberal values. After all, religion matters to many people, and it shapes the citizens on whose judgment democratic governments purport to rely. It is better, then, that religions inculcate some values, commitments, and loyalties rather than others. As I wrote in my article,"Governments like ours are not and cannot be 'neutral' with respect to religion’s claims and content. [T]he content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of, but also and in many ways seek to assimilate—that is, to transform—religion and religious teaching." On the other hand, there's the longstanding maxim that governments like ours should not -- and perhaps even may not -- take "cognizance" of religion, or "entangle" themselves with religion.

The context of Garnett’s post is the claim that we commonly hear from Western pols like Bush and Blair that Islamo-theocracy (Bin Laden et al.) does not represent, “the real Islam.”

Our founders dealt with a similar “religious problem.” On the one hand many versions of Christianity were quite illiberal and did not believe in tolerating the other sects. But as many of our Founders argued, Christianity, “properly understood” was perfectly compatible, complementary even with our liberal democratic order. And according to Adams, Washington et al., if government should be in the business of taking sides and supporting one religious view over another (but while never denying the basic free exercise rights and equal government privileges to any sect, no matter how illiberal), it should promote this “right kind” of Christianity.

But this is not necessary “good news” for the religious right – the “Christian Nation” crowd – because arguably, their kind of Christianity is not “Christianity, properly understood.” In other words, they may be better off endorsing the Madisonian-Jeffersonian view of complete Separation, or government doing its best to never involve itself with religion in any way.

Interestingly, when the “Christian Nation” crowd offers their “proof quotes,” often they cite an out of context quote by a founder talking up religion in general or Christianity in particular. But as the deeper context reveals, our Founders don’t assert that our public order is based on fundamentalism or revelation, but rather “the right kind” of Christianity – one consistent with and complementary towards the Enlightenment teachings which truly found our public order. For instance, this quote by John Adams (from a letter to Jefferson, dated June 28, 1813) is commonly cited by the “Christian Nation” crowd:

“The general principles upon which the Fathers achieved independence were...the general principles of Christianity….”

But what we don’t see is what Adams goes on to say:

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

In other words, these “general principles of Christianity” are completely consistent with and affirm the teachings of Enlightenment philosophers like Locke, Newton, Hume, Rousseau, and Voltaire.

Anyone interested in what our Founders, particularly Jefferson and Adams, really thought about religion must read Jefferson's and Adams's correspondence with one another. You will see that they did not believe what came from the Calvinist, fundamentalist clerics of the founding era was “Christianity, properly understood.” Don’t get me wrong, they believed that all Christian sects, no matter how illiberal and irrational their teachings, should be guaranteed basic free exercise rights and equal access to government privileges. John Adams's quote (again in correspondence with Jefferson) on the Roman Catholic Church is quite apt:

I do not like the reappearance of the Jesuits.... Shall we not have regular swarms of them here, in as many disguises as only a king of the gipsies can assume, dressed as printers, publishers, writers and schoolmasters? If ever there was a body of men who merited damnation on earth and in Hell, it is this society of Loyola's. Nevertheless, we are compelled by our system of religious toleration to offer them an asylum.

Roman Catholicism, along with Trinitarian Calvinistic Christianity (which was far more dominant in American than Catholicism) were two illiberal forms of Christianity in which our key founders arguably did not think good for society or should receive support from government. In other words, this was not the type of Christianity to which our founders referred when they talked up religion in general or Christianity in particular.

Therefore, I completely disagree with Thomas West when he writes:

First, it is a good rule of historical interpretation to distinguish between the private thoughts of a man and his public works. Jefferson believed a great many things that never found their way into his public life. His private rants against priests, Calvinists, and some of the more obscure doctrines of Christian faith tell us very little about the principles of the founding or even of Jefferson's own public actions.

The “private thoughts” of Jefferson to which West primarily refers are taken mainly from his correspondence with Adams, and some others. Jefferson’s and Adams’s correspondence with one another were not some obscure rants, but rather explications of their ideals which they intended to be absorbed by future generations. They privately wrote things that they could not publicly utter, given the historical context of the times in which they lived. Jefferson was nearly ruined as a public man for his public candor on religion, and Paine was absolutely ruined for his.

And that historical context guaranteed a “public life” that in many ways failed to live up to the philosophical ideals of our founding principles.

Therefore, the “private thoughts” of Jefferson, Adams, et al., arguably shed more light on the “principles of the founding” than their actions in public life. For instance, our Founders, as public officials, preserved the legality of slavery when founding this nation, even though in their private writings and thoughts, they excoriated the institution and knew it violated natural right.

So when Jefferson and Adams railed against Roman Catholicism and Calvinistic Christianity, they were stating, quite frankly, that these sects did not represent “Christianity, properly understood,” that they were not the types of Christianity that provided the good support that government needed from religion.

Jefferson went so far as to state (to Adams) that Calvin’s god was a “false god,” “a daemon of malignant spirit” and that “his religion was Daemonism.” Jefferson even held that, "It would be more pardonable to believe in no god at all, than to blaspheme him by the atrocious attributes of Calvin."Adams similarly wrote to Jefferson that “The Calvinist, the Athanasian divines [Trinitarian Christians]... will say I am no Christian. I say they are no Christians, and there the account is balanced.”

As Mark Lilla wrote in the NYT, the type of Christianity that our Founders endorsed – the one in which they desired to dominate the citizenry’s religious conscience – was one that was far more “sober and rational” than the Calvinistic fundamentalism that was quite influential in the day (as it is today).

Jefferson’s and Adams's understanding of Christianity was a far more benevolent version than what we see coming from today’s fundies. When Jefferson spoke of an America “enlightened by a benign religion, professed, indeed, and practiced in various forms, yet all of them including honesty, truth, temperance, gratitude, and the love of man; acknowledging and adoring an overruling Providence," he certainly was not referring to the Calvinistic fundamentalist versions of Christianity which he and Adams personally loathed, but rather those attributes of Christianity that complemented the Enlightenment values in which he believed. Jefferson’s ideal version of Christianity was theologically Unitarian, denied the doctrine of eternal damnation, and held man’s reason – as opposed to Biblical revelation – to be the ultimate arbiter of what is Truth. Moreover, Jefferson’s and Adams's ideal Christianity had no qualms about rejecting traditional, orthodox Christian doctrines, or cutting out entire parts of the Bible which did not comport with notions of “reason” or otherwise represented “defective” or “doubtful” accounts of history.

Is this the kind of Christianity which the religious right endorses? I don’t think so. If we can properly call Jefferson’s and Adams's personal beliefs “Christian,” then they are closer to the “Cafeteria Christianity” of today that uses reason and contemporary notions of morality – as opposed to literal accounts recorded in the Bible – to decide the ultimate nature of morality and Truth.

So – to tie things back to Garnett’s original point – are religious conservatives better off with Adams's notion of an accommodation between liberal government and the right kind of religion or Madison’s notion of government that may not, of right, take cognizance of religion? Arguably, they are better off with Madison’s version of strict separation. If government is in the business of deciding what is the proper kind of religion that liberal government should endorse, in many circumstances government will endorse a version of Christianity that contradicts the tenets of Christian fundamentalism. If as Garnett notes, “liberal governments have an interest in convincing people -- whether they belong to the religion in question or not -- that the religion in question really teaches in accord with liberal values…” then perhaps government has an interest in endorsing that Christianity, properly understood, teaches that homosexuality is not a sin, and that God made gay people as gays and wants Christian churches to marry them. After all, some Christian Churches really do teach this. And doesn’t this represent the cutting edge of contemporary “liberal values?”

If the religious right fully understood the implications of Adams's notion of government endorsing “the right kind” of Christianity, they’d probably jump on board with the ALCU in calling for a complete “Separation of Church and State.”
There he goes again....

Here is a new article by D. James Kennedy, featured by of course WorldNutDaily, on our Christian Nation founding.

Kennedy is promoting his special on the matter that airs this weekend on The Coral Ridge Hour, and in August, nationally on different "secular" stations.

Note that Kennedy goes far beyond the mere (legitimate) argument that modern court Establishment Clause cases or the ACLU's ideal vision of Separation of Church & State are not consistent with original intent. Rather Kennedy argues that America was founded to be a "Christian Nation" in a public/governmental sense (the exact opposite of what the Treaty of Tripoli states), and that the principles that found our public order -- those in the Constitution and the Declaration of Independence -- are taken straight from the Bible. Anyone familiar with the real history of our Founding knows this to be utter nonsense.

I've dealt with Kennedy and his nonsense on my blog here, here, here and here. And look for an essay refuting his weekend special next week on this blog.

Wednesday, July 27, 2005

Kinsey: Who is the Real Fraud?

Check out this post by our own Ed Brayton about Judith Reisman and her latest hair-brained idea.

Reisman, if you do not know, is probably the most vocal critic of Alfred Kinsey. It's a mantra among many religious conservatives that Kinsey's studies are flawed, if not complete junk. I'm completely open minded to fair criticisms of Kinsey (for instance, I don't think that a full 10% of society are gay; though I'm not sure if Kinsey claimed that either).

But when you look at most (nearly all?) criticisms of Kinsey from social and religious conservatives, they inevitably seem to rely on Reisman's work as a primary source. The problem is that her work is inherently incredible. She's a complete wacko and a crank. Whatever the problems with Kinsey's work, I guarantee you the problems with her work are far worse. Criticizing Kinsey by relying on Reisman's reminds me of what Jesus said about being concerned with the mote in your neighbor's eye while ignoring the log in your own.

So how bad is Reisman's work? Check out this link that Aaron left in the comments section at Dispatches.

Tuesday, July 26, 2005

Change, Courts & Legislatures

Earlier on my site I noted a theory by Mark Tushnet, a lefty-law professor at Georgetown University (and Eve's Dad), where he seems to side with Bork, Graglia and the hard right, arguing that judicial review should be abolished and questions of ultimate constitutionality should be left with legislatures. But, ironically, he argues that this move would be good for the progressive left's political interests.

Tushnet's stance flies in the face of the commonly accepted wisdom of the hard right that it is the courts who are the agents of the Left's policies, and of cultural change.

Another distinguished lefty-law professor, Columbia's Jeremy Waldron, more or less supports Tushnet's point of view. He notes that in many other Western nations (most?) such controversial policy issues -- the cultural issues and the more liberal stance that Western nations have taken towards them in modern history -- have been decided by legislatures.

The British legalized abortion, prostitution, and homosexuality and abolished capital punishment, all by legislation, all without the assistance of the judiciary -- or sometimes over its expressed opposition -- in the 1960s.

I think what we need to keep in mind is, despite our differences on which we tend to overly focus, America is a Western nation and Western nations are all specifically different forms of the generic liberal democracy. It's not the courts that have come in hand-in-hand with the ACLU and foisted some subversive cultural agenda on America. Rather the cultural changes that have occurred in America in recent modernity -- things like abortion, homosexuality, sexual permissiveness, the end of racial privileges, gender equality -- are really just part and parcel of a larger pattern that we see running throughout all Western nations generally.

And in many of these nations, the legislatures (what the social cons love to refer to as "the will of the people") have gladly been the final arbiters in favor of such change. There is a myth among such members of the right that if we abolished judicial review and left everything up to the legislatures, we could take America back to the days of Leave it to Beaver. I don't think so.

Culturally and geographically, which nation is closest to the US? Why Canada. And gay marriage is coming to Canada, nationally. How did that happen? Well, it wasn't through a court decision. Now don't get me wrong. I have no problem with courts, through judicial review, striking down acts of legislatures in order to protect minority liberty and equality interests. I'm simply writing this to refute what I see as the ridiculous notion that the courts are to blame for delivering to us a culturally liberal social policy.

Monday, July 25, 2005

Scalia & Monotheism:

I'm glad Sandefur brought up Scalia's dissent in McCreary v. ACLU. I think Scalia was actually onto something but ultimately missed, getting it only half-right. Scalia looked to the acknowledgments of a generic, undefined Deity that our early Founder/Presidents made in their public statements and concluded (wrongly) that they were drawing a lowest common denominator between Judaism, Islam, and Christianity, all of which as Abrahamic religions believe that God revealed the Ten Commandments to Moses.

This is wrong for a number of reasons, primarily because back then Jews and Muslims (and Catholics) were, for the most part, put into the same box with Hindoos, Pagans and Infidels. Some of our Founders -- the most important ones -- wanted to grant rights of conscience universally to all. Others probably wanted such rights to belong only to the Protestant sects.

What those Founder-Presidents of whom Scalia referenced were actually doing was drawing a lowest common denominator between orthodox Christianity (which was probably dominant among the population) and the Deistic-unitarian philosophy in which each of them -- Washington, Adams, Jefferson, and Madison -- believed.

Therefore they spoke of an undefined generic, monotheistic, rights-granting Deity. He could be the trinitarian God of the Bible or the very unorthodox, non-miracle performing unitarian God in which they believed. But if we had to form a LCD God out of that, we wouldn't conclude that He was the God who revealed the Ten Commandments to Moses because that was something of which these Deistic-unitarian Founders were highly skeptical.

I made a similar post in more detail, here.

Sunday, July 24, 2005

Major Update:

Ed Brayton, Timothy Sandefur, Jason Kuznicki, and I have agreed to do a group blog. Jason's Positive Liberty is going to be transformed into our group blog. I think the name will remain the same (I'm not entirely sure yet). I plan on continuing to post here; but I haven't yet decided whether to turn this into more of a personal blog or to cross-post everything.

I am happy for this opportunity to be formally associated with such distinguished fellows. And I am sure, because of our consolidated effort, my ideas will be disseminated to a far wider audience.

Anyway, check it out.

Saturday, July 23, 2005

Ozzy v. McCartney:

Why has Ozzy Osbourne, in the long run, produced consistently better material than Paul McCartney? This question is especially ironic given that McCartney is a better musician and has a creative genius that Ozzy could never approach. Also, Ozzy counts Paul as a seminal influence. Well, it's precisely because Ozzy is not the creative talent that McCartney is that Osbourne has produced better material.

There is an interesting observable pattern among many great songwriters: They only have so many good songs in them and at some point dry up and start putting out bad or mediocre material. This is arguably more of a rule than an exception. And the exceptions are few; Elton John may be one. Neil Young too. Perhaps Bob Dylan, but given that Dylan's voice has deteriorated so badly I really can't judge whether some of his recent material is good or not because I don't have much of an interest in listening to it. McCartney however is typical of the many figures of a bygone era whose greatest material is long past. Think about how great the second half of Abbey Road was, how great it would be if Paul could churn out an Abbey Road every four years or so.

Ozzy Osbourne on the other hand, I don't think ever wrote an entire song by himself. And there are many songs in which he didn't write at all but still received a co-writer credit. He has, to his credit, legitimately co-written many good songs, but needs to collaborate with better musicians who can fully develop his ideas. And if an artist -- especially a big name -- always relies on other talented songwriters for his material, then he can pretty much assure not running out of good material. You do need an ear for good songs and Ozzy has that.

I think Frank Sinatra too primarily relied on others for his material. I distinctly remember Simon from American Idol talking about this phenomenon on Bill O'Reilly. They didn't mention Ozzy, but rather Sinatra; I thought to myself this describes Ozzy to a "T."

All in all, Ozzy has produced good music, sometimes great, over the long run. While not a great singer in a technical sense, you don't need to be a great singer to rock, just have a cool sounding voice, be able to carry a tune (no one wants to listen to someone who can't hit the right notes) and be able to put a lot of emotion into it. And Ozzy can do that. More importantly, Ozzy has always surrounded himself with great musicians and great writers. First with Black Sabbath where Tony Iommi (guitar) and Geezer Butler (bass) were the primary songwriters. And then with many greats in his solo career.

Right off the bat after being kicked out of Black Sabbath, Ozzy assembled a studio team of phenomenal musicians and writers for his first two solo albums (metal classics). The late great Randy Rhodes on guitar, Lee Kerslake on drums, Bob Daisley on bass, and Don Airey on keys. And yes, Rhodes, Daisley, Airey, and Kerslake were responsible for writing most of that material.

Now he plays with Zakk Wylde on guitar, another phenom on guitar. Ozzy and Sharon really do have a talent for picking the right people to prop Ozzy up and that's probably why he's been so successful in his solo career.

Some interesting occurrences over the years: His relationship with Daisley, Kerslake and Airey didn't last long. They were Class A musicians and felt short shrifted in terms of their contributions and Ozzy taking the credit. They split acrimoniously and Daisley and Kerslake sued Ozzy for unpaid royalties.

So when it came time to remastering those two classic albums, Ozzy had Kerslake's and Daisley's drum and bass tracks removed and replayed and rerecorded by his current musicians. This was a shitty thing to do. He essentially ruined the CDs and screwed Daisley and Kerslake who, creatively, were every bit as important to those albums as he. It also prompted a class action lawsuit. (See Daisley talking about it, part 5).

Currently Bob Daisley, Lee Kerslake and Don Airey are playing in a band, Living Loud, with guitar great (my favorite) Steve Morse, and Austrian singer Jimmy Barnes, of whom I've never heard until now, but apparently is pretty big in Australia.

I'd like to get their DVD and CD but they are only available through Australia and payable in Australian dollars. I think I'll wait till Jan 06, which is the expected release date of their stuff in America on EMI/Capital.

Many of the tunes they do are straight from those two Ozzy CDs, and this is understandable given how much Airey, Daisley and Kerslake contributed to the writing of those songs. For me, I can't wait to hear Steve Morse's interpretation of those Randy Rhodes guitar parts.

The Living Loud website has some brief audio and video clips.

Friday, July 22, 2005

The Evil of Islamofascism:

It can be summed up in this story and pic. We really need to put Islam through an Enlightenment, whether it be done by force or persuasion.

Thursday, July 21, 2005

Taking the Constitution away from the Courts:

My Dad once observed that the extreme left and the extreme right sometimes go so far to the extreme that they meet and agree on a number of points. This notion, posited by Mark Tushnet, law professor at Georgetown University, and who is pretty far to the left, may be one such example. Like Robert Bork, he's for abolishing judicial review -- Taking the Constitution Away from the Courts as he puts it -- and leaving ultimate questions of constitutionality up to the legislatures.

Of course I think this is a terrible idea...but, as Tushnet demonstrates, there are good reasons why "Progressives" might support such an idea. Many progressive gains (arguably more of the economic gains, than the cultural ones) have been made by the legislatures.

The democratic belief in the people's judgment is confirmed by the important legislative achievements of modern democracy. One T-shirt sold after the 2004 election listed what the Democratic Party has accomplished: "Equal Pay. Equal Rights. 40 Hour Work Week. Social Security. Medicare. Clean Water. Clean Air. Safe Food. Freedom of Speech. Voting Rights." All but the last two were achieved primarily through legislation, and some-the social welfare achievements of the modern state-had little connection to the Supreme Court, except when it obstructed them.

Also, if the Court becomes more in sync with the original meaning of the Commerce Clause and the Constitution's doctrine of enumerated powers, many of these progressive gains are ripe to be struck down by an active albeit originalist Court.
Ha, I love it:

This post from Positive Liberty.

Wednesday, July 20, 2005

The Perfect Souter:

Giving my obligatory 2 cents on the John Roberts matter, I think he may turn out to be for Bush II what Bush I hoped Souter to be. Roberts not only has perfect credentials for the position, but he is also a "stealth candidate" in that he, as far as we know, has never spoken in his own voice on any controversial constitutional issues. Thus, he hasn't produced any rope with which the other side can use to hang him.

After he is confirmed, I have the feeling that he will be a pretty solid conservative on the bench; certainly I think he will be anti-Roe v. Wade (his wife was Executive VP of this group).

BTW: I'm more concerned with the Griswold line of privacy/liberty cases in general than Roe in particular. Abortion deals with the moral question of whether and when a fetus is a human being with civil rights, and obviously government has a legitimate interest in protecting the life of innocent human beings.

Lawrence and Griswold, on the other hand, deal with what consenting adults do behind closed doors. And that certainly is none of government's business and proscribing such is not a legitimate function of government.

I give an exercise to my Business Law students every semester on Roe and Casey and I can attest that many ordinary, average folks don't understand these cases; they think that if Roe were overruled, automatically all abortions would be illegal. No, it just means that states would decide the issue and certainly many states would indeed illegalize abortion (Alabama, and a few other southern and Midwestern states). But many states, particularly in the Northeast, would retain the legality of abortion. If someone from one of the illegal states were really desperate for an abortion, all they'd have to do is travel to one of the many states, like NJ, Mass, Conn., where abortion would remain legal.

Finally, I'm not saying that I'm in favor of overturning Roe or Casey; I'm just noting that if Roe were overturned, it wouldn't mean the end of all abortions in the US and that in many states, probably most, abortion would remain legal.
Holy Trinity Case and Ten Years:

An anonymous commenter did some research and made this point regarding D. James Kennedy's assertion that the Supreme Court spent ten years researching the Holy Trinity decision to come to the conclusion that "America is a Christian Nation."

If the Supreme Court spent 10 years researching this issue, it wasn't in connection with this case. The first paragraph of the court's opinion states that Holy Trinty and Walpole entered into the contract in Sept. 1887. The Supreme Court issued its opinion on Feb. 29, 1892. Thus, less than 5 years passed from the time of the contract until the court issued this opinion.

In the last sentence of the first paragraph, the court cites the decision of the Circuit Court (36 Fed. Rep. 303) that was appealed to the Supreme Court. The Circuit Court's opinion was issued on March 21, 1888. The appeal to the Supreme Court would have been filed after that date, so the Supreme Court's decision was issued slightly less than 4 years later.

Finally, according to the opinion of the Circuit Court, the statute in question was enacted on Feb. 26, 1885, only 7 years before to the Supreme Court's decision.

If somebody spent 10 years of meticulous research on this question, it wasn't the Supreme Court.

Yes, and also keep in mind that the "America is a Christian Nation" utterance by Justice Brewer was simply dicta, not the issue in the case which the Court decided. It doesn't really make sense that the Court researches for ten years to make a rhetorical point in its dicta. So I guess Kennedy, like David Barton whom he often cites, is full of it.

Tuesday, July 19, 2005


Thanks to Julian Sanchez of Reason's Hit and Run for linking to my post on The Question and the Justice League Unlimited TV series.

Also check out Dan Quattrone's post from Doing Things With Words on the same issue.

Monday, July 18, 2005

Holy Trinity Decision:

Another favorite of Jim Kennedy and the "Christian Nation" crowd is the 1892 Holy Trinity decision in which Justice Brewer declared "this is a Christian nation." The first way in which Kennedy misrepresents this case (he's done so in a number of his sermons and will likely do so again in his forthcoming special) is that he acts as though whether America is a "Christian Nation" was the matter in legal dispute in that case; it wasn't.

This link provides a good summary of the specific issues involved:

The facts of Holy Trinity concerned the application of an Act of Congress titled "An act to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States, its Territories and the District of Columbia." Holy Trinity Church, a church located in the city of New York, contracted with a minister in England to perform services as rector and pastor at its church. At issue in the case was whether or not the church's action violated the Act which prohibited "any person, company, partnership, or corporation ... to assist or encourage the importation or migration of any alien ... under contract or agreement ... to perform labor or service of any kind in the United States."

The holding of Holy Trinity was based on an interpretation of the purpose of the Act. The Court concluded that the purpose of the Act was to prohibit the importation of foreign unskilled persons to perform manual labor and manual services. A christian minister, the Court reasoned, is a "toiler of the brain," not a manual laborer; Holy Trinity Church, therefore, was found not to have violated the Act when it secured a contract for the holy man's employment.

That, and not "America is a Christian Nation" is the holding of the case. The "Christian Nation" quote was just dicta.

And keep in mind that Supreme Court dicta is just that; it isn't the immutable Truth. If it were then we'd also have to say that Justice Kennedy's (no relation to D. James I presume) dicta in Lawrence is also the Gospel Truth.

More importantly, I'd like to get to the bottom of D. James Kennedy's assertion that the Court spent ten years researching the case. From what we know about the case already, Kennedy is misleading the public: Kennedy asserts that the court spent ten years of meticulous research, going over document by document, in order to conclude that "America is a Christian Nation." But that can't be true because even if they did spend ten years pouring over documents, as we've already learned, whether America was founded as a Christian Nation wasn't at issue in the case; they would actually have been spending all of that time in order to answer "whether or not the church's action violated the Act which prohibited 'any person, company, partnership, or corporation ... to assist or encourage the importation or migration of any alien ... under contract or agreement ... to perform labor or service of any kind in the United States.'"

But even still I strongly doubt that they spent ten years on the matter. It smells a like a phony David Barton fact. Or if they did, there likely is some context behind all of this that hasn't been divulged. Can any of my readers shed light on this?

Sunday, July 17, 2005

Luthor is Luthor:

Justice League Unlimited on the Cartoon Network just keeps getting better. I think the main reason is that they get writers from the comic book industry who, for the most part, stay true to the original characters and attempt to integrate what's best about the comics into the series.

Alan Moore and Frank Miller changed the landscape of comics by injecting some postmodern realism into the mix. For instance, if there really were heroes who were that powerful, do you think everything would be just hunky-dory between them and the governments, especially the superpowers like the US?

And that is one of the themes that they've been playing upon this season. They've also been using many other of the DC Universe's characters. They've made especially good use of the "Charlton" heroes, (those characters which were created by Charlton Comics, were subsequently bought by DC and integrated into the DC Universe).

Steve Ditko, a Randite, created two characters -- The Question and Mr. A -- as Rand inspired superhereos (arguably, these two are the same character, just variations on a theme).

Alan Moore, when he did his groundbreaking Watchmen actually had the Charlton characters in mind. But DC (who published both Watchmen and owns the Charlton characters) wouldn't let him use the characters because they were then integrating them into regular DC continuity after the Crisis on Infinite Earths. So he changed them; Captain Atom became Dr. Manhattan; Blue Beetle became Nightowl, and The Question/Mr. A became Rorschach.

Rorschach was still portrayed as having far-right (near anarchist) politics; but Moore made him into more of a John-Birch type crackpot than a Randite. Recently Frank Miller featured The Question prominently in his sequel to The Dark Knight Returns (not as good as the first, but still worth the read) at his Rand-quoting finest.

Anyway Justice League Unlimited is doing a great job of presenting a Miller/Moore inspired Question. He quotes Ayn Rand, and is also a right-wing conspiracy buff. From their episode "Question Authority," The Question actually gives the "A is A" speech to Lex Luthor.

The Question: Everything that exists has a specific nature. Each entity exists as something in particular and has characteristics that are part of what it is. A is A, and no matter what reality he calls home, Luthor is Luthor.

Great stuff.

Saturday, July 16, 2005

Leiter outs Burton:

I obviously respect Brian Leiter's intelligence, academic accomplishments and prestigious place that he holds in the law & philosophy interdisciplinary field. As an academic myself, I'm clearly not in his league, and doubt I ever will be. That said, I don't too much care for the rhetorical style he uses on his blog and think, in the long run, it will hurt him by making him look like "the bad guy." (Unless he's trying to become the Ann Coulter [Leiter's fellow Michigan law alum] of the left-blogsphere).

Well something interesting has occurred with another alum of Leiter's: Steve Burton, a former friend and fellow student with Leiter in University of Michigan's PhD in philosophy program. Burton blogs at Right Reason, a conservative blog with a socially conservative bent.

You may remember when I linked to a piece by Ed Feser, one of their contributors, where he defended a Thomistic understanding of natural sex. Feser argued that natural sex is "procreative sex." Francis Beckwith, another RR contributor wondered if contracepted sex between married couples could be understood as "natural," to which Max Goss, editor of the site, responded, "no," because, "It would justify sodomy."

Anyway Burton wrote a post attacking Leiter's blogsphere conduct, Burton trying to give Leiter a taste of his own medicine by using an especially harsh and insulting tone. Leiter responded in the comments section by "outing" his former friend. And an interesting dialogue continued from there.

For my comments section: Was Leiter's outing justified?

Friday, July 15, 2005

More nonsense from Coral Ridge:

Another example of an article of theirs that distorts America's History.

This time their foil is Isaac Kramnick's and R. Laurence Moore's, The Godless Constitution, which by the way is an outstanding book written by two scholars from Cornell University who also happen to be two of the most distinguished scholars of founding era political philosophy.

The article starts off by noting the obvious fact that early colonial settlers were religious folk who explicitly founded colonial orders on the Christian religion. As on of their "scholars" puts it: "The colonists 'didn't come over with John Locke in hand,' said Lutz. 'They came over with the Bible in hand.'" Duh. That's because Locke wasn't born until 1632, years after the early colonial settlements.

And that speaks to the "newness" of the case of America's founding (the novus ordo seclorum). The political science upon which we were founded is oft-referred to as "the new science of man" (a term Michael McConnell used when I saw him speak at Princeton University). The central ideas upon which we were founded had not even been formulated when the colonies were first settled. It's true that the colonial settlers covenanted with the Christian God while founding their colonies; they also covenanted with the King of England under the doctrine of Divine Right of Kings! -- a doctrine explicitly refuted by the Declaration of Independence, America's true birth certificate.

What was unique about America's national founding by the Declaration of Independence and the Constitution is the way in which it clearly differed from the colonial foundings of the earlier era, which were theocratic "Biblical" foundings. Whereas the colonies explicitly covenanted with the Christian God (along with the "Christian King") in their charters, there was no such thing in the US Constitution or the Declaration of Independence. Whereas the colonies mandated religious tests, most of them requiring belief in Protestant Trinitarian Christianity (in which our key founders disbelieved) in order to hold public office, Art. VI of the US Constitution declares, "but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

What about the political principles upon which we were founded? From where did they derive? The articles states:

Dr. Donald S. Lutz, a professor of political philosophy at the University of Houston, conducted a massive groundbreaking study in which he examined some 15,000 documents written during America's founding era. He and his research associate, Dr. Charles Hyneman, found that a third of the quotations in these documents were from the Bible. 'Deuteronomy is cited more than John Locke or anyone else,' said Lutz, who is featured on the upcoming Coral Ridge Hour special, One Nation Under God, which airs July 30 and 31.

If our founding public principles -- those found in the Declaration and the Constitution -- truly did come from the Bible, one would think that these two documents would reference such verses and chapters of scripture. In the earlier colonial era, many of the colonies (Massachusetts being the most notable case) incorporated much of the Bible in their civil codes and explicitly cited verses and chapters of scripture. But there are no such references in the Declaration or the Constitution.

I have no idea about Mr. Lutz's study; it's smells to me like a David Barton/ Paul Cameron schlock concoction, or at the very least it reaches a schlock conclusion. If one wanted ascertain the meaning of the Declaration and Constitution, the first place to look is the text of those documents. Not seeing any references to Christianity or the Bible in there, the next most logical place to look would be the Federalist Papers. So where the Declaration and the Constitution are relatively brief documents -- perhaps they didn't have the space to explain exactly where the principles originate -- the Federalist Papers are quite voluminous; they do explain in great detail from where our foundational principles come and cite sources. And if "political discourse was permeated with Biblical references" as Lutz argues, certainly, we'd see all of those citations to Deuteronomy in there. But guess what? They aren't in there either. They don't cite the Bible at all, but rather Enlightenment philosophers like John Locke, Baron de Montesquieu, Cicero. But supposedly, according to Kennedy, et al. we were founded (in a public/governmental sense) on "The Bible" not "The Enlightenment."

No one should deny the cultural influence of the Christian religion and the Bible on this nation. Even today, in our "secular" culture, many of the phrases used in our language derive in some way, back to the Bible. I would imagine that it was even more so back in the founding era. One can also imagine looking back to some of the documents and papers of the founding era and "finding" language that ultimately traces back to the Bible. And then drawing the unwarranted conclusion that our principles of political philosophy derive from the Bible. We see these same folks doing the exact same thing with the phrase "In the Year of Our Lord" in the Constitution (which was the customary way of stating the date back then, and to a large extent still is). That nominal, customary, religious reference in the Constitution magically transforms it into an entire document that was taken right out of the pages of the Bible. As Gary North says in his ebook, which despite its flaws, is closer to the Truth about our founding than what comes from the likes of Kennedy and Barton, "If this is the sole judicial basis of the Christian American national civil covenant, then the case for America as a Christian civil order rests on a very weak reed." Yes, a very weak reed indeed.
Sean Kinsell:

Thanks to Sean Kinsell and his discussion of my post on Japan and Relativism.

He knows more about Japan than I do. So it's nice to see his further elaborations and perspective.

Thursday, July 14, 2005

It's time once again for....:

Why I love the Internet:

On AOL, not only can you watch the entire Live 8 Concert (who'd want to do that?) you can also selectively watch any of the artists' entire performances. That's good for me given that I liked only about 1 out of every 20 performers.

Some notable performances that you didn't see on MTV or VHI, Neil Young gives a masterful performance -- first time I have heard his beautiful song, "When God Made Me."

Also Deep Purple rocked. Purple were never one of my favorites; although I always recognized them as a solid, innovative band with great performers. Their line-up constantly changed over the years. And even now, two key members are no longer in the band: guitarist Ritchie Blackmore (gone for a while) and keyboardist Jon Lord (only recently left). However, they have been replaced by even better musicians. On keys, Don Airey, and on guitar, the mighty Steve Morse, arguably the greatest living instrumental rock guitarist.

And of course, you can watch the entire Pink Floyd set uninterrupted by commercials.

Wednesday, July 13, 2005

Dr. Daniel Dreisbach & Coral Ridge:

Rev. D. James Kennedy has an amusing weekly broadcast where he mixes religion and right-wing politics and otherwise distorts America's History while positing the "Christian Nation" myth. He, like David Barton (one of his favorite guys) is an easy strawman to knock down.

As I wrote before, he is producing a special on our "Christian Nation" heritage that he intends for a national broadcast on mainstream stations (and look for me to refute it).

During that special, Kennedy will feature such schlock historians as David Barton and Gary Demar. But he will also feature some credible scholars who sympathize with his point of view (although I have a hard time believing that such credible scholars, that any credible scholars for that matter, think that the Declaration and the Constitution were taken right from the pages of the Bible, as Kennedy will argue). One such figure whom Kennedy will feature and whose arguments have to be taken seriously is Dr. Daniel Dreisbach. Philip Hamburger in his book on Separation of Church and State heavily relies on Dreisbach's work.

But just because Dreisbach is a good scholar who makes legitimate points doesn't mean he can't be answered. To hear some of Dreisbach on Coral Ridge, check out this, this, and this.

First, I think Dreisbach misrepresents Jefferson. Dreisbach claims that Jefferson's "Wall of Separation" was intended by Jefferson as a federalism provision, a wall between what the "federal" government could do on religious matters (very little), and what the states could do (much more). For instance, Jefferson refused to issue a Thanksgiving Proclaimation as President. Dreisbach asserts that Jefferson believed, while it was not appropriate for the federal government to engage in prayer proclamations, it would be appropriate for state and local governments to do so.

Dreisbach bases his claim in part on "the text and the context" of Jefferson's letter to the Danbury Baptists, where the phrase "Separation of Church and State" is found. Here are two drafts of his letter: The final one as sent and the original draft. Jefferson doesn't seem to be talking about federalism (at least I can't see it from the drafts), but rather natural right -- certain immutable principles that universally apply to all governments.

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

The text of the letter in no way indicates that Jefferson thought, on the one hand, it inappropriate for the federal government to do X on matters of religion, but perfectly appropriate for state and local governments to do X on the other. Rather it recognizes that there are certain "natural rights," certain "legitimate powers of government" and that by "declar[ing] that [the federal] legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State," it is assured that the unalienable rights of conscience will be respected at the federal level.

Dreisbach bases his "federalist" conclusions in part because Jefferson acted in ways as an elected official in VA that both belied the strict separation ideal and that indicates that states, as a matter of right, could do things in matters of religion that the federal government could not. For instance, as an elected official in VA, Jefferson did issue official prayer proclamations as he refused to do when President.

He notes as "absurd" Souter's conclusion in Lee v. Weisman that

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

But Souter is exactly right. First off, Souter has none other than James Madison, the architect of the Constitution, who makes the exact same point. In his Detached Memoranda, Madison asserts that the practice of appointment of Chaplains to be "a palpable violation of equal rights, as well as of Constitutional principles." Madison, as President, issued a prayer proclamation in 1812, but later seemed to regret doing so, or at the very least believed he was under a constitutional obligation "to make the Proclamations absolutely indiscriminate, and merely recommendatory; or rather mere designations of a day, on which all who thought proper might unite in consecrating it to religious purposes, according to their own faith & forms...."

In order to fully understand Jefferson's and Madison's views on the proper relationship between government and religion, we must first understand that these men believed in natural right ideals -- certain principles that all governments, federal, state, local and international -- must, in theory, respect. But these ideals are high and lofty. And often they would be, in practice, not met. Slavery is the classic example. Slavery violated the natural rights of blacks as articulated by the Declaration; but the legality of slavery was preserved by the original Constitution. Was our founding pro-slavery or anti-slavery? It all depends on whether we were founded on our ideals or on our compromises with those ideals. If historical "practice" must inform our constitutional principles to the point where such practice is dispositive, then it's clear we were founded on slavery -- Jefferson and other founders owned slaves! And if we had a "pro-slavery" founding then, as Harry Jaffa aptly notes, it's nigh well impossible for originalists to claim the moral highground.

It may be a stretch (or not) for natural right libertarians to try to assert that such a theory, as understood by our framers, can be applied to justify sexual and personal liberties like homosexuality and drug use, which specific issues were not addressed by such theory (and yes, I know Jefferson wrote a VA criminal code criminalizing sodomy); but Jefferson and Madison addressed the issue of religion and natural right in great detail.

The kernel of truth in Dreisbach's "federalist" argument is that Jefferson believed that while states as a matter of right, may not be able to do X, he didn't believe that the federal government had the recognized power to prevent them from doing X. Under Jeffersonian principles of federalism, the federal government would address federal violations of natural right, the states would address state and local government violations. And he believed that state governments would be more effective in doing so than the federal government.

But as the Civil War demonstrated, Jefferson was wrong in this regard and we now have the Fourteenth Amendment. The real questions, it seems to me, that need to be grappled with are: If it is accepted that "religious rights" are properly incorporated against the state governments by the Privileges or Immunities clause, where the federal government now does have jurisdiction over state violations of natural rights, how would Jefferson and Madison desire these natural right ideals to apply against all governments in the United States? And secondly, is the "separation" that Jefferson and Madison both described really necessary to protect individual "rights" from real violations? For instance, Madison held that the appointment of Chaplains violates "Equal rights." Is that logically correct? Does it really violate anyone's rights to appoint chaplains? Or Jefferson wrote in his VA Statute on Religious Freedom (a self-described document of natural right), "that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical...." In other words, Jefferson argued that it violated natural right for government to aid religion with tax money. But is that logically correct? If government money going to religion violates natural right because it funds "the propagation of opinions which [some taxpayer] disbelieves," how many other government programs propagate opinions in which some taxpayer disbelieves?

I know these aren't easy questions and I'm still trying to think through them myself. I'm still working on Hamburger's book and Dreisbach's book entitled, Thomas Jefferson and the Wall of Separation Between Church and State, is on my reading list.

Monday, July 11, 2005

Japanese Racism and Relativism:

My Korean-American sister-in-law, her family, and I'd imagine many other Koreans still bear serious resentment towards Japan over their past conduct persecuting many other Asian peoples. Japanese racism/ethnocentrism/ethnic chauvinism was a big part of why Japan was so bad in the past. Japan is a very interesting place. They are, in some ways, one of the most civilized places on the planet (in terms of crime rates, literacy, poverty, and education) and a reliable democratic ally. It's hard to imagine that sixty-some years ago they were not only allies with the Nazis but engaged in conduct that rivaled the Nazis in its barbarity.

Yet even today, overt racism is far more respectable there than it is in America or the West. Allan Bloom, in Giants and Dwarfs, commented on this in the context of warning about the dangers of value and cultural relativism and the hesitance to "judge" other cultures by our standards. He stated in a speech given at Harvard:

When we arrive in Japan we shall see a thriving nation. Its success clearly has something to do with its society, which asks much of itself and gets it (Rowe: keep in mind this speech was given in 1988 before Japan's long recession, when they were dominating us economically and when it seemed to many that they would continue to do so for the long-term future). It is a real community; its members have roots. Japanese society is often compared to a family. These characteristics are in tune with much of current liberal thought in America....

But the family is exclusive. For in it there is an iron wall separating insiders from outsiders, and its members feel contrary sentiments toward the two. So it is in Japanese society, which is intransigently homogeneous, barring the diversity which is the great pride of the United States today. To put it brutally, the Japanese seem to be racists. They consider themselves superior; they firmly resist immigration; they exclude even Koreans who have lived for generations among them. They have difficulty restraining cabinet officers from explaining that America's failing economy is due to blacks.

Should we open ourselves up to this new culture? Sympathize with its tastes? Should we aim for restrictiveness rather than diversity? Should we experiment with a more effective racism? All these things could be understood as part of our interest in keeping up with the Japanese economic miracle. Or they could, in a tonier vein, help us in our search for community and roots. We recoil in horror at even having such thoughts. But how can we legitimate our horror? It is only the result of our acculturation....If there are no transcultural values, our reaction is ethnocentric. And the one thing we know absolutely is that enthocentrism is bad. So we have painted ourselves into a corner. pp. 21-22.

I think there are two levels of relativism of which we need to be aware: One level, the inner level (value relativism), it seems to me has or may have some Truth to it; the other, the outer level (cultural relativism), needs to be forthrightly rejected.

Regarding the inner level, we have the fact/value gap: it may well be impossible to "prove" as a matter of mathematical certainty any moral truths (although I'm certainly open minded about the possibility). And as such, as a matter of Truth, it may be improvable that our way of life is better than any other, say an indigenous way of life where people still live in the stone age, without reading, writing, arithmetic, air-conditioning, medical treatments for diseases, where large sectors of the populace tend to die before 40 or 50, where they haven't even invented the wheel! Even the most elementary moral truths such as the immorality of slavery and genocide may be improvable as a matter of mathematical certainty.

But if we accept arguendo, as we all do, that it's better not to harm innocents, it's better for children or any sector of the populace not to go to bed hungry, it's better to treat diseases and live on till old age, it's better for the populace to be well-educated, to live in comfort with things like air-conditioning, etc., then we indeed can judge other cultures according to such standards and all cultures are not relative in these respects; some cultures are superior to others in their living up to these ideals, in their fostering productive scientific and material output, and in their general and specific ways of life.

The fact that this nation and the West believe in individual rights, in freedom and equality naturally gives rise to a diverse, pluralistic, cosmopolitan society where individuals and social groups are given much leeway to pursue happiness openly and publicly as they see fit. And this, in and of itself, is good.

However, we should see no paradox in asserting that this way of life -- the way of life that enables the existence of tolerance, diversity and pluralism to begin with -- is superior to the ways of those illiberal cultures, like the Islamofascists. And we should hope that as much of the rest of the world as possible embraces these values which have done so much good for us.
Blue laws not blue?

I've been doing some research to keep current on a Business Law course that I am teaching. Apparently blue laws weren't originally written on blue paper as many of us thought they were (at least no credible historical evidence supports this).

Also puzzling to latter-day Americans was the term "blue laws" itself. Why were these regulations called "blue laws"? With no obvious explanation at hand, we invented a satisfying one: these types of laws had originally been printed on blue paper or bound in books with blue covers.

Not so. No one has turned up seventeenth-century sheets of blue paper or blue-bound books containing these laws, nor has anyone found any seventeenth-century references to these regulations as "blue laws." The earliest recorded use of the term didn't appear until well over a century later, when the Reverend Samuel Peters' 1781 book, General History of Connecticut, described onerous colonial laws in the following manner:

Blue Laws; i.e. bloody Laws; for they were all sanctified with whipping, cutting off the ears, burning the tongue, and death.

(A variant of this tale posits a self-referential origin for the term by claiming that Peters' book itself was printed on blue paper!)

Although Peters maintained that early colonists did refer to these laws as "blue laws," he did not claim that the name was taken from the paper they were printed on, nor is there any evidence of an earlier usage of the term than his own. Since parts of Peters' book (such as his list of forty-five putative "blue laws") have since been found unreliable, it's possible he may simply have invented the term "blue laws" himself. If not, the term most likely derived from an eighteenth-century usage of the word "blue" as a disparaging reference to something perceived as "rigidly moral" (a "bluenose," for example, is one who advocates a rigorous moral code), not from the color of the material on which the laws themselves were printed.

Sunday, July 10, 2005

No wonder why Bork hates the Declaration:

(Hat Tip: Kip Esquire)

Bork's latest from Opinion Journal:

Contrast Tocqueville with Justices Harry Blackmun and Anthony Kennedy. Justice Blackmun wanted to create a constitutional right to homosexual sodomy because of the asserted " 'moral fact' that a person belongs to himself and not others nor to society as a whole." Justice Kennedy, writing for six justices, did invent that right, declaring that "at the heart of [constitutional] liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Neither of these vaporings has the remotest basis in the actual Constitution, and neither has any definable meaning other than that a common morality may not be sustained by law if a majority of justices prefer that each individual follow his own desires.

We can debate whether Blackmun's and Kennedy's dicta "has the remotest basis in the actual Constitution," but it seems unquestionable that their sentiments are in accord with the plain meaning of the text of the Declaration of Independence which states that individuals have an unalienable right to liberty and to purse happiness.

Bork, to his credit, is honest enough to realize this (although he doesn't mention it in his article). See Chapter 3 in Slouching Towards Gomorrah where Bork states that these principles in the Declaration are “hardly useful, indeed may be pernicious, if taken, as they commonly are, as a guide to action, governmental or private.” They are also as Bork notes, "what America said it was about from the beginning.”

Saturday, July 09, 2005

Halford on Fresh Air (or Heavy Metal is no longer homophobic):

Check out this great interview with Rob Halford of Judas Priest on Terry Gross's Fresh Air.

Halford discusses what it's like to be an openly gay heavy metal god. Metal is one of the many different forms of rock which I enjoy (like all forms of rock -- when it's good, which often it's not). Growing up in the 80's and 90's and having friends in the "heavy metal" crowd, I can attest that it was quite homophobic. I'm not sure if it is anymore. Not only are Judas Priest one of the most important metal acts, but they also are "Ozzfest" regulars, and Halford has even stepped in and as the frontman for Black Sabbath -- the most important metal band -- on two occasions: once in the early 90's while he was still in the closet, but also last year at Ozzfest in Philadelphia (which alas, I missed).

Both the fans and the metal artists, as far as I know, embrace or otherwise accept and tolerate Halford as an openly gay frontman of one of metal's most important bands.

Even though he didn't come out until the late 90's, Halford's homosexuality was one of the worst kept secrets in metal history. Part of that reason is that Halford's appearance fits a gay stereotype. Actually he fits two stereotypes.

Anyone familiar with metal knows that there is a Biker subculture attached to it, exemplified by the Hell's Angels and other lesser known biker groups. There is also a leather/biker subculture within the gay community. And those two archetypes -- the "metal/biker" and "gay/leather" -- converged in one man: Rob Halford (see pics).

Anyway Priest has some great metal tunes. And their latest release, Angel of Retribution has some kick-ass tunes (Click and then launch Metal God Jukebox to hear "Judas is Rising," the first tune off of their newest release).

Friday, July 08, 2005

EO on Comic Books:

Great post from a guest on Evangelical Outpost, on comic books.

Thursday, July 07, 2005

Brilliant post:

At Positive Liberty.

My favorite passage:

The terrorists' choice of targets, though, reveals not a strength but a curious weakness. In seeking to end the West, they have attacked what they consider to be the heart of the urbane, commercial, cosmopolitan, and individualist culture they despise. Their attacks on the Pentagon, the World Trade Center, and the public transportation systems of major cities all reflect this tendency: Strike at the center, and everything else will fall. They have a special wrath for financial districts, for here they hope to hit the mainsprings of the West. Once these mainsprings have been destroyed, the rest of the machine will cease to function.

In particular, it is interesting to note Osama bin Laden's fascination with the World Trade Center, which his organization sought to destroy on at least one occasion prior to September 11. It is as if he believed that by striking at the center of western business, the West itself would be dealt a fatal blow.

It did hurt. But in a very real sense, there never was a "world trade center," and as such, it could not be destroyed. Trade does not have a center. The genius of the market, and of the West, is to be decentralized, to exist without any necessary order or hierarchy, to have a billion brains but not a single head.

Terrorism won't bring down an organization like that. It can't. This organization, this spontaneous order, is unique to free societies. It cannot be killed by a well-timed physical blow at some carefully chosen point. Raised on authoritarian propaganda, the terrorists do not understand this.
Many links, one post:

Thanks to Upword for linking to me more times in one post than I think anyone else ever has.

A Supreme Court Justice's view of the Establishment and Free Exercise clauses should be well-grounded in the historical understanding of the Constitution's authors that the church and the state must remain separated for the benefit of both the church and the state. Historical misrepresentations about alleged Christian foundations of our nation, such as those espoused in the benighted neo-antidisestablishmentarian dissent of Justice Scalia in McCreary, should be an outright disqualification for the job. However, a Justice should be sensible enough to realize that there needn't be an absolute firewall between church and state in cases where the government can implement legitimate policy in a way that is neutral among religious beliefs (or lack of them), such as school vouchers, some of which may go to religious schools.

Wednesday, July 06, 2005

Christian Nation Propaganda:

D. James Kennedy has a one-hour special in the works, on our "Christian Nation" founding, set for broadcast at the end of the month. What's special about this program (he's done this with a few other subjects) is that he is buying airtime for a national broadcast on mainstream stations. In other words he's trying to take this program beyond his usual broadcast "turf" and bombard the mainstream airwaves with this message.

I'm familiar with the arguments that he makes and they full of historical errors, falsehoods, and misrepresentations. I'll watch the broadcast very carefully. If any Internet (or regular) publication wants me to write a critical review of the episode for them, contact me. Otherwise look to this blog for my debunking of his nonsense.

Let me demonstrate some of the distortions that we see in the teaser.

The program examines the intent and purpose of our nation's founding documents, the life and faith of George Washington, whether the Founders were deists or Christians, and the high price the Founders paid to establish our nation....

One of the experts on the program is Dr. James H. Hutson, head of the Manuscript Division at the Library of Congress in Washington, D.C. While George Washington is often labeled a deist, Hutson said America's first president regularly attended Christian worship services and church vestry meetings. "We have records of his attendance at vestry meetings," Hutson said.

One Nation Under God also talks with Mary Thompson, a research specialist at Mount Vernon, who has carefully investigated Washington's supposed deism. "What I found very early on," she says, "was that this was a man who believed that God took an active part in the founding of the United States, a man who believed that God took an active interest in people's lives, and that the way a person behaved in reference to God could, [and] would influence how God related to him. And that's not the belief of a deist."

Right off the bat, Kennedy establishes two boxes, "Christians" and "Deists." And by "Chrisitans," he means orthodox-fundamentalists like himself and by "Deists," only those who believe in a remote watchmaker God. The problem with these boxes is that many key Founders fit within neither box; many of them, like Washington, Jefferson and Adams could be in some sense categorized as both "Christian" and "Deist." The two terms aren't mutually exclusive. Many of the men we understand to be Deists, again with Jefferson as the quintessential example, were members of mainstream Christian Churches. And just about all of the prominent Founders, including the "Deists" like Jefferson and Franklin, invoked an interventionist God.

So maybe Washington, Jefferson, and Franklin weren't "pure" Deists. So what? What does that make them? Not fundamentalists like Kennedy and his ilk.

There is not a thing about Washington's religious beliefs that couldn't also be said about Jefferson's in terms of the "Christian proof" that we will see offered (at least the credible evidence). Jefferson, like Washington, was an Anglican/Episcopalian. Jefferson, like Washington, was in fact a Vestryman in the Church. And Jefferson, like Washington, "believed that God took an active part in the founding of the United States...that God took an active interest in people's lives, and that the way a person behaved in reference to God could, [and] would influence how God related to him."

So what didn't Jefferson believe?

The immaculate conception of Jesus, his deification, the creation of the world by him, his miraculous powers, his resurrection and visible ascension, his corporeal presence in the Eucharist, the Trinity; original sin, atonement, regeneration, election, orders of Hierarchy....

In other words, the fundamental tenets of orthodox Christianity. And not a shred of credible historical evidence shows that Washington accepted any of these either.

Tuesday, July 05, 2005


Rehnquist retires. And the Bush - Senate war ensues. The two empty seats get tied up in the battle...for all of next year's term. We would still have an odd number of Justices and seven Justices, it seems to me, could do the job just as effectively as nine.

However, now the liberal wing of the Court -- Stevens, Souter, Ginsburg and Breyer -- would have a four member majority, with Kennedy, Thomas, and Scalia as the conservative minority. For an entire term.
NYT on Bisexuality:

This is interesting, similar to what I have written. The article questions the existence of (real) bisexuality in men.

The study, by a team of psychologists in Chicago and Toronto, lends support to those who have long been skeptical that bisexuality is a distinct and stable sexual orientation.

People who claim bisexuality, according to these critics, are usually homosexual, but are ambivalent about their homosexuality or simply closeted. "You're either gay, straight or lying," as some gay men have put it.

In the new study, a team of psychologists directly measured genital arousal patterns in response to images of men and women. The psychologists found that men who identified themselves as bisexual were in fact exclusively aroused by either one sex or the other, usually by other men.

The study is the largest of several small reports suggesting that the estimated 1.7 percent of men who identify themselves as bisexual show physical attraction patterns that differ substantially from their professed desires.

From what I understand, the article is correct insofar as we understand "bisexuals" to be those who are fully and evenly attracted to both sex. For the male gender, they are so rare as to be perhaps nonexistent. Yet, other studies, cross-cultural evidence, and I'm sure many personal anecdotes of which we are all aware, demonstrate the existence of many men, both on the "gay" side and "straight" side, having relations with both sexes.

If simply having "relations" with both sexes -- being able to perform and enjoy it -- makes one a "bisexual," then male bisexuals, far from being non-existent or extremely rare, are rather extremely common. You see we are dealing with different understandings of "bisexuality" here.

The article claims that most people who label themselves as "bi" are really one or the other, but mainly "gay." (The article doesn't mention this:) There are men who are predominantly homosexual, who are active with both sexes, and label themselves "bi." There are also men who are predominantly heterosexual who are active with both sexes; but they most likely label themselves "straight."

Like it or not, a social stigma still comes with the gay or bi label, and most people are loathe to put that label on themselves unless they honestly feel a need to come out and join the gay or bi community. So why would a guy who is predominately homosexual label himself "bi"? Perhaps to appear at least "half-normal." But a guy who is predominantly heterosexual with some marginal bisexual tendencies wouldn't ordinarily want the "stigma" of a "bi" label. Guys don't like having their manhood questioned, which like it or not, a "gay or bi" label does.

There are some exceptions...those predominately hetero guys, who would, for political reasons, embrace the bisexual label. Kurt Cobain comes to mind.

One unexplored implication of the article: It stated that many of those who label themselves as "bi" show little if any attraction to one of the genders, suggesting a disconnect between what they are and how they label themselves; but it didn't ask whether their behavior was somewhat consistent with how they labeled themselves. In other words, do these predominantly homosexually oriented men sleep with both sexes (even if they are a lot more active with men), as their label suggests?

Again, this is something about the "male" gender -- certainly not all of us, but a good deal of men: Some guys, it seems, can (forgive me for getting a little vulgar) "get it up" for anything, even inanimate objects. These might be men who are at the tail end of the bell curve (or maybe a good part of the right half) in terms of testosterone levels and the need for sexual release.

For such a guy, even if homosexual, he could perform heterosexually, and conversely, if heterosexual, could perform homosexually. This raises the question whether those men engaging in "situational" homosexuality or "situational" heterosexuality (which I'd estimate at least 1/3 of the gay or straight population can do) are really attracted in any meaningful way to what they are having sex with, or if it's just the ability to get it up for any object and perform that is in play.

Monday, July 04, 2005

Thinking about the Declaration:

On this Independence Day, let us think about the Declaration of Independence and take it seriously. By that I mean, ask, is the Declaration a mere statement of political rhetoric used to justify one nation breaking away from another, or is it a statement of Truth? Was our nation founded in 1787 or in 1776? Is the Declaration of Independence the organic law of the United States? And if so, what does that mean in terms of this nation's Foundational underpinnings?

One of the best articles I've come across posted today on the Declaration is this one by Michael Berliner. If the Declaration is the Foundational Truth of America, then it is clear what America was founded on: Man's Reason. From the article:

To the Founding Fathers, there was no authority higher than the individual mind, not King George, not God, not society. Reason, wrote Ethan Allen, is "the only oracle of man," and Thomas Jefferson advised us to "fix reason firmly in her seat and call to her tribunal every fact, every opinion. Question with boldness even the existence of a God." That is the meaning of independence: trust in your own judgment, in reason; do not sacrifice your mind to the state, the church, the race, the nation, or your neighbors.

The implications of this are numerous: The post-modern Left, which after Nietzsche (who ironically was part of the Right), has thrown out Reason completely, leading to the positivistic conclusion that the Declaration "is not law" because natural law doesn't exist. The "Christian Nation" right denies that we were founded on Reason, but rather erroneously (and laughably) argues that Declaration and the Constitution were taken right out of the pages of the Bible.

Some on the social right (the East Coast Straussians) realize that the Declaration is, as Robert Bork puts it, "an Enlightenment document" (and "Jefferson was a man of the Enlightenment") and for this reason they admonish their fellow social conservatives to be less fervent in their embrace of the Declaration; the Declaration, they argue, at best contains, "half-Truths."

And there are others on the "social right" who recognize the Declaration as a document of Man's Reason and the Enlightenment, but argue that Reason and Revelation, properly understood, are by-in-large compatible and complimentary. In other words, religious conservatives should in no way feel threatened by Man's Reason as a Foundational element of America.

However, something has to rule -- and the American Founding, properly understood, elevates Man's Reason over Revelation and consigns Revealed Religion to the private sphere. Many religious conservatives simply won't accept that our government was Founded on Man's Reason and that, not Revelation, is what rules us publicly.

Claremont attempts to be conciliatory between Reason and Revelation, and sometimes, I think erroneously tries to elevate "Revelation" to a higher status than where it properly belongs (which is subservient to Reason).

For instance, in this great debate between Claremont's John Eastman and Dr. Paul Finkleman, Eastman asserts:

The notion that Jefferson believed that "moral truths" are "created by the will of the people" is really preposterous, and flatly inconsistent with Jefferson's claim that such truths are "self-evident"—knowable both by human reason (by which we access the "Laws of Nature") and revealed religion ("Nature's God").

No! Both "the Laws of Nature" and "Nature's God" are appeals to Man's Reason. The Declaration doesn't invoke Revelation at all (if it did, where are the Chapters and Verses of Scripture?). The term "Nature" has many different meanings and thus may confuse. During the Founding, when "Nature" was invoked in a political sense, it meant, according to Forrest McDonald, -- arguably the leading Historian on such terminology matters, and a political conservative -- "discoverable by reason as opposed to revealed by God." As such, "Nature's God" is, according to Claremont's own Thomas West, "God insofar as we can discern his existence through our reason unassisted by faith."

Saturday, July 02, 2005

Michael McConnell, Classical Secularist?

Now that O'Connor is retiring, the War begins. In terms of replacing her with a more conservative jurist, I think McConnell is the only one who could survive. Otherwise, the President will have to choose someone with more socially liberal or libertarian tendencies, for instance, Judge Posner.

In any event, part of McConnell's appeal is that, though he may be a solid conservative, he holds very interesting opinions, especially on religious matters, that often buck the standard conservative line, and defends these opinions with brilliant scholarship.

My readers know that I describe myself as a "libertarian" and a "secularist." However, just as a libertarian is a "liberal" in a "classical" and not a "modern-leftist" sense, I also consider myself to be a "classical secularist" -- that is I endorse the secularist ideals as posited by Jefferson and Madison. This system holds that government in principle ought to remain neutral between the different religions (all religions, the orthodox and unorthodox ones) and between religion and irreligion. In order for these norms to trigger a constitutional issue, however, some kind of tangible "right" must be involved -- a free exercise right, or some other kind of "privilege or immunity" which must be given on an equal basis. So for instance, if government in its mere words seems to endorse one religion over another, that might or might not be a federal constitutional issue (see my discussion of Amar below). But, in any event, some kind of actual individual right must be involved in order for government's action to be declared unconstitutional.

And if government connects itself with religion in some way, while managing to still uphold the principles of liberty, equality, and neutrality between the religions and between religion and irreligion, then such a Church/State nexus would be perfectly constitutional. Vouchers are the classic example: As long as they are available on a generally applicable basis -- they can be used for Catholic Schools, Jewish Schools, Scientologist Schools, Secular Schools, Prep Schools, etc. -- they are perfectly constitutional even if they have the incidental effect of aiding a lot of Catholic Schools, which they, no doubt, will.

So the "Wall of Separation" might not be the proper constitutional "metaphor" for understanding constitutional rights. But interestingly, much of what is done under the Establishment Clause, still could be vindicated under rubric of "equal protection" or "equal rights of citizenship," or as I have written before, a "substantive norm of equality" that is derived from our unalienable natural right to equality of conscience.

From the post where I quote Akhil Amar's outstanding book on the Bill of Rights:

Even a noncoercive establishment, [Thomas] Cooley [one of the Fourteenth Amendment's framers] suggested, violated principles of religious liberty and religious equality -- violated norms of equal rights and privileges. And once we see this, it turns out that the question -- should we incorporate the establishment clause? -- may not matter all that much, because even if we did not, principles of religious liberty and equality could be vindicated via the free-exercise clause (whose text, history, and logic make it a paradigmatic case for incorporation) and the equal protection clause (which frowns on state laws that unjustifiably single out some folks for special privileges and relegate others to second-class status). Surely Alabama could not adopt a state motto proclaiming itself "the White Supremacy State"; such a motto would offend basic principles of equal citizenship and equal protection. And so a law that proclaimed Utah a Mormon state should be suspect whether we call this a violation of establishment principles, free-exercise principles, equal-protection principles, equal-citizenship principles, or religious-liberty principles. Once we remember that we are not incorporating clauses mechanically but reconstructing rights, we reach the unsurprising conclusion that our basic touchstones should be the animating Fourteenth Amendment ideals of liberty and equality.

pp. 253-4

So now to McConnell and arguably his "classical secularism." Here is Jeff Rosen on his record:

More than anyone else in the country, McConnell is responsible for persuading the Supreme Court to abandon the rigid church-state separationism that prevailed during the 1970s, arguing instead that the state should be neutral toward religion. As a result, he supports school vouchers, but, unlike Justices Scalia, Thomas, and Rehnquist, he argued that graduation prayers in public schools were unconstitutional even before the Court struck them down in 1992.

And here is one of Phylis Schlafly's sons on McConnell, likening him to the next David Souter:

At first blush, that view may seem attractive to the Religious Right. But McConnell's legal philosophy is actually hostile to government expressions of faith, such as invocations at graduation or perhaps, eventually, the Pledge of Allegiance.

In 1992, McConnell declared as "wrong" the conservative view "that the government should have broader latitude to give voice to the religious sentiments of the community." McConnell's libertarian view gives one person the power to censor hundreds, in order for that one person to be free from hearing a prayer that he does not like.

Here is a quote of McConnell's on School Prayer:

"[O]fficially sponsored and led prayer in public school classrooms would be impossible to maintain today in a way that would be either spiritually valuable or noncoercive. . . .

"I do not believe that officially sponsored, vocal classroom prayer can be administered without effectively coercing those in the minority. And that should not be permitted. . . ."