Wednesday, August 31, 2005

My Addiction:

I figure if you let yourself have a vice and be addicted to some substance, it might as well be this one.

Sunday, August 28, 2005

Lawrence & Incest:

Jeff Jacoby's recent column argues, using a real life incest prosecution example, that there is no principled way such prosecution could survive Lawrence's holding.

The case Jacoby cites is interesting. It involved consenting adults -- Allen, 45, Pat, 30 -- who didn't meet until Pat was 18. Right there a key rationale for incest laws is missing from this case: Incest is rarely consensual and adult; it invariably involves the abuse of minor children living in the home. It is far harder to make a moral case against incest if this element is missing. But the second legitimate rationale for incest prohibition was indeed present in this case: The couple had four children (and as I'm sure all of us are aware, the argument is incest is bad for the species because inbreeding heightens the chances for biological defects).

Those two reasons, the defects that come with inbreeding and abuse of minor children, are, to my mind, the only legitimate moral and public policy rationales that support the legal incest taboo. They are also both wholly absent from homosexual relations between consenting adults. And that right there should be sufficient for any rational person to distinguish between incest and homosexuality.

Sometimes I get the question something along the lines of..."well what about incest where both elements are missing? What about two sisters who didn't start dating until adulthood? Or a sterile brother and sister?" My response: 1) I think it's icky, definitely not for me; 2) I really don't see good reason for a public norm or legal prohibition against such acts unless weakening the taboo against this more or less harmless incest weakens the taboo against incest generally, and in effect leads to more of the "bad" kind of incest with abuse of children and inbreeding.

Still the couple in question has engendered my libertarian sympathies. I'm not sure in a first best libertarian world how I would deal with them. I certainly don't think they should be sent to prison. But one thing is for sure, Jacoby is wrong on his thesis. I've stated two good reasons why incest is distinguishable from homosexuality.

The case made it to the 7th Circuit and the judges rather wisely held that, in Jacoby's words, "since Lawrence had dealt specifically with homosexual sodomy, it could not be invoked retroactively to overturn a conviction for incest." Jacoby called this a "strained and narrow ground," but those judges were doing exactly what normal judges do. When confronted with an analogy, judges can either read the precedent narrowly and refuse to extend the logic of case A to case B or read the precedent broadly and make that leap down the slope. Ultimately it's the judges who have the discretion.

Which brings me to my final point. There is something very irksome about social cons' seeming insistence that only gays bear the burden of the "slippery slope," homosexuality leading to things that are otherwise entirely unrelated to it. As I've written before, the slope does indeed exist and it's entirely possible, but certainly not inevitable, that the logic of gay rights decisions will be used to support these otherwise unrelated things. But good constitutional decisions that produce good results in which we all agree also can and do lead us down the slope as well.

Therefore, it is necessary to once again turn our attention to miscegenation. The fact is, homosexuality is no more or less logically related to incest than miscegenation is to homosexuality. We can use the same slippery slope argument against miscegenation: Recognize a right to miscegenation today, and you'll have to recognize a right to same-sex marriage tomorrow. And there is a kernel of truth to this argument! Loving, read in a broad sense, does indeed support the case for same-sex marriage. On the other hand, Loving can be read narrowly as applying to the specific case of mixed raced marriages only. Well the same thing can be said of Lawrence! We can apply the logic broadly to justify things like polygamy and incest or read the holding narrowly as applying only to consensual sodomy.

From a conceptual analysis, there are no two ways about it: incest is no more logically related to homosexuality than homosexuality is to interracial couplings. We are dealing with the wrong "race," the wrong "gender," and the wrong "degree of relatedness," each seemingly equidistant conceptually. If we want to argue that homosexuality and incest are both condemned as traditional taboos, then we'd have to logically group miscegenation in there too, which is or was equally a traditional taboo.

If anything, incest and miscegenation are more logically related to one another than either to homosexuality. Some traditional sexual taboos, like sodomy, are taboo because they are non-procreative. Well, neither incest nor miscegenation are inherently non-procreative. Indeed, the taboos against both are set up so these otherwise fertile folks will not procreate with one another! We can group both incest and miscegenation together under the rubric of consanguinity regulation. With incest, the partners are too closely related. With miscegenation, the partners are too distantly related.

And let us not forget, those who believe in a literal interpretation of Genesis believe the entire human race was propagated by brother and sister incest.

Finally, from a constitutional perspective, homosexuality is just as distinguishable from incest as miscegenation is from homosexuality. Some might argue that, unlike Lawrence, the ban on miscegenation as a constitutional matter, is supported by the 14th Amendment because that Amendment clearly had some idea of racial equality in mind in its general intent. Two things. First, the historical record demonstrates that the ratifiers of the 14th Amendment not only were not aware that they were illegalizing miscegenation, but gave assurances that the legality of miscegenation bans would be preserved. Secondly, if one then argues 14th Amendment jurisprudence as a general matter forbids racial classifications, subjecting them to strict scrutiny review (enough to justify striking down the ban on miscegenation), the 14th Amendment also forbids gender classifications as well, albeit subjecting them to a lower level of review (intermediate scrutiny). And if a ban on interracial marriages that applies equally to blacks and whites constitutes "race discrimination," then likewise a ban on same-sex marriage that applies equally to men and women constitutes gender discrimination. The 14th Amendment has no record of heightened scrutiny for consanguinity classifications or number classifications (polygamy). So once again we see that even from the perspective of the 14th Amendment, there is just as far logical distance between miscegenation and homosexuality as there is between homosexuality and incest.

(Hat tip to John Corvino for this excellent article that inspired many of these arguments.)
Doh. I hate it when that happens:

When I wrote about ID logically pointing in the direction of super-advanced natural alien visitors as the "designers" as much as if not more so than the God of the Bible, I thought I was making an original point. Compare what I wrote with Michael Shermer's nearly identical thoughts on the Huffington Post (scroll down to the second half of his post).

Of course I wrote my post before Shermer. But then again, Shermer was just reiterating a point he had argued in 2002.

One more analogy may help make the point. In my January, 2002, Scientific American column, entitled "Shermer's Last Law," I modified Arthur C. Clarke's famous "Third Law" ("Any sufficiently advanced technology is indistinguishable from magic") thusly: Any sufficiently advanced Extra-Terrestrial Intelligence is indistinguishable from God. God is typically described by Western religions as omniscient and omnipotent. Since we fall far from the mark on these traits, how could we possibly distinguish a God who has them absolutely, from an ETI who, relative to us, has them in copious amounts? Thus, we would be unable to distinguish between absolute and relative omniscience and omnipotence. And if God is only relatively more knowing and powerful than us, then by definition God would be an ETI!

Therefore, when Intelligent Design Theorists use science to go in search of their God, what they will find (if they find anything) is an alien being capable of engineering DNA, cells, complex organisms, planets, stars, galaxies, and even universes. If we can engineer genes, clone mammals, and manipulate stem cells with science and technologies developed in only the last half century, think of what an ETI could do with, say, 10,000 years of such science and technology. For an ETI a million years more advanced than us, engineering the creation of planets and stars will be doable. And if universes are created out of collapsing black holes, which some cosmologists think is highly likely, it is not inconceivable that a sufficiently advanced ETI could create universes at will.

Since IDers say they make no claim on who or what the intelligent designer might be, I contend that if they continue to try to reconcile their religion with science the end result can only be the discovery of an extra-terrestrial intelligence and the naturalization of their deity.

What probably happened was I saw Shermer on TV a number of years ago, on CSPAN or something along those lines. I listened to his point and pondered it and then forgot about it. Then, years later, pondering ID, a clever theory comes to me, thinking it to be original, when in reality it had been sitting in my subconscious all these years.

Or I could have "independently" come to these conclusions on my own. It's amazing sometimes how like-minded folks can "think along the same track" or along similar tracks and get from point A to point B, using more of less the same argument, coincidentally.

And as Will Wilkinson points out, Shermer's idea is really just "an updated version of Philo's objections in Hume's Dialogues."

I think this also relates to the IP debates that Sandefur and Kuznicki have had. I know as a musician and a tune-writer, coming up with original material can be very hard. You search your mind for original ideas, you come up with something thinking it all your own, and then, alas, realize that what you thought was yours came from somewhere else (subconscious and inadvertent "rip off"). This is something that songwriters do all the time. George Harrison got sued for it (his "My Sweet Lord" subconsciously ripped off "He's So Fine").

I've learned that if this occurs, it's best to realize exactly where your idea comes from, and then, if you want to hold onto your creation, tweak the idea to make it enough "your own" and distinguishable from where it came. Someone famous, I think it was Stravinsky said, "good artists borrow, great artists steal." And what he meant by that was, if you "borrow" something, it doesn't belong to you; you have to eventually give it back. But if you "steal," you make it your own. The great artists are talented enough that they can take an idea from someone else and make it seem as though it were original to them.

Friday, August 26, 2005

Licensing Parents:

I never understood why statists (non-libertarians), on both the left (those who support the "nanny" state) and the right (the social cons who support the "granny" state) don't call for and demand the licensing of parents.

If I understand the rationale for licensure of various things -- drivers license, gun license, professional licenses -- it goes something like this: There are certain thing which can greatly affect the safety and well being of the public. They take special care and demand very high levels of responsibility. As such, if we didn't license drivers, for instance, the roads would be less safe and the public would be in danger...if we didn't license medical doctors, medical care would be less safe and the public would be in danger...and on and on.

But still (and as Sandefur can attest) many areas of life where vital public health and safety concerns aren't on the line require licensure. You want to work in a hair and nail salon, you need a license. You want to get that deck built on the back of your house, you need a license.

But for those "important" licenses like driving and medical surgery, I think the key word is "responsibility." There are certain acts which inherently require responsibility and licensure is a way in which the public or the government can require that you meet certain minimum standards. Okay. So what then is the one thing in life that most any ordinary person can do, that without question or possibility of debate, requires more responsibility than any other thing? The decision to have and raise a child.

So why then don't we license that? One question would be, how would we do so? Simple: Require every female resident of childbearing age to have Norplant implanted, which doesn't get removed until she and her spouse get a license. What would the requirements of the license be? For this, I would turn to William Galston, a moderate lefty-Democrat who worked for Bill Clinton (James Q. Wilson citing Galston):

[Y]ou need only do three things in this country to avoid poverty—finish high school, marry before having a child, and marry after the age of 20. Only 8 percent of the families who do this are poor; 79 percent of those who fail to do this are poor.

Or we could adopt some variation thereof: For instance, only married couples who can demonstrate they are economically able to support the baby would get the license. If they are under 20 or didn't finish high school, they could have one. And it's not just poverty that is avoided by this. Educational failure and violent crime also accompany out of wedlock teen births.

Obviously, as a libertarian I don't support this. But I do believe that it's hard if not impossible to justify our system of government mandated licenses for the so many areas of life which clearly involve less responsibility than the decision to beget a child.

Wednesday, August 24, 2005

Bisexuality & Choice:

Eugene Volokh's controversy (which I earlier discussed) relied greatly on the fact that bisexuals have ability to choose which gender to have sex with and enjoy it. I think Volokh properly assumes that those who are exclusively homosexual (a Kinsey "6") and exclusively heterosexual (a Kinsey "0") really have no meaningful choice in the path which they ought to take when pursuing romantic and sexual gratification. There are "gay" and "straight" folks who are so exclusive in their respective orientations that the thought of having sexual relations with that gender to which they aren't attracted is unthinkable no matter what the circumstances.
Volokh's latest controversy:

I don't think Eugene Volokh is an anti-gay bigot.

From almost everything I've read from him on this issue, he strikes me as the very opposite. A series of recent posts of his on gays, conversion to homosexuality, and risks of gay sex has ruffled more than a few feathers. You can check out the list here:

Those Who Sincerely Wonder Whether My Posts Are Motivated By Anti-Gay Animus
Sssh! We're Not Supposed To Be Talking About
Dangerousness of Male Homosexual Activity:
One More Final Post on Sexual Conversion:
Gays and Lesbians and Golf:
One Last Thought on Conversion and Sexual Orientation:
Why Wouldn't Gays and Lesbians Want the Bisexually Oriented to Experiment with Homosexual Behavior?
Response to Eugene's Post on Gay "Conversion":
Gays and Lesbians Trying to Convert Others to Homosexual Behavior:

If Volokh is guilty of anything, it's exercising a very poor choice of words. What Volokh describes as "conversion" to homosexuality has an entirely different meaning than the sense in which the bigots use that term. Julian Sanchez has one of the most sensible posts on the matter.

Eugene points out that if someone has a pre-existing same-sex attraction, gay friends or acquaintances may try to get them to act on those impulses if they haven't before. OK, obviously that happens. Except Eugene unhelpfully refers to this as "conversion to homosexual behavior" and considers it a counterexample to the idea that "homosexual conversion" is a myth. Well, first, the that that's not the myth. The relevant "myth" people are talking about is the idea that gays are going to try to mysteriously implant homosexual impulses in your dear sweet 12-year-old. And that's a sufficiently pernicious myth that Eugene's way of talking is signally unhelpful, insofar as anyone might read it as giving credence to that notion.

Monday, August 22, 2005

Bob Moog, RIP:

Bob Moog was not only the inventor of the synthesizer, but of the "Moog synthesizer" which had a classic, unmistakable sound. He died.

Those first synths were "monophonic" which means they could only play one note at a time. But the sounds that came out of them were so fat, you only needed to hear one note. Like computers, keyboards have come along way since then. But for most of the time since the mid-60s when the first Moogs were introduced, the "progress" of digital keyboards was debatable. They could do all sorts of things, but couldn't replicate the fat ballsy sounds of early analog synths. We are just now getting to the point where digital synths sound as good as the old analogs. And I'm sure that some purists would argue that they still don't and probably never will.

Some classic artists like Rick Wakeman and Keith Emerson still use their monophonic moogs (as one of many synths in their keyboard racks). Emerson is notable in that he possessed and still possesses one of the first line of "modular" Moogs. As far as I know there were only a relatively small number of them ever made, and they were hugely expensive, and big and cumbersome in size (and again, could only play one note at a time). Emerson had one, so did the Beatles, so did The Who and Wendy Carlos. Wendy Carlos, by the way, did some of the most brilliant early multitracking with her monophonic synth, of Bach's music, Switched on Bach.

Rick Wakeman used and still uses the "Minimoog" which is smaller and more practical than the modular Moog (more tour friendly) and sounds almost as good. Jan Hammer arguably one of the greatest (if not the greatest) keyboard improvisers, did some mind-blowing work with the Minimoog.

I remember a friend on mine, in music college, bought a beat up used ARP synth (which used related analog technology) for less than 200 bucks. It was small and could only play one note at a time but sounded a Hell of a lot better than the digital synths that cost thousands of bucks.

The analog Moogs were a classic sound of 70s progressive rock and to a lesser extent 70s fusion, two styles I greatly enjoy listening to. Here is a video recording of a performance of one of the best written progressive rock songs that features the Minimoog, Journey from Mariabronn, by Kansas. This was a very early recording and the keyboards are slightly out of tune, which I understand was one of the drawbacks with analog synths.

Sunday, August 21, 2005

Were most Historical Scientists Christian Fundamentalists?

Over at the Evangelical Outpost a fundamentalist creationist left the following comment:

The good doctor seems to forget that it was born again, Bible believing, creationists who established the founations [sic] of modern science. Why? Because they were free thinkers, inspired by the Bible and unshackled by the dogma of their day. These include:

Lister, Pasteur, Newton, Boyle, Cuvier, Babbage, Lord Raleigh, Newton, Maxwell, Faraday, Fleming, Kelvin, Fabre, Faraday, Stokes, Herschel, Boyle, Mendel, Aggisiz, Simpson, Leonardo da Vinci, Maury, Pascal, Ramsay, Rayleigh, Ray, Reimann, Brewster, Woodward, Virchow, Kepler, Joule, Maxwell, Steno, Linnaeus, Kelvin, Davy, Cuiver.

These were so called "heroes of the faith," each of whom made major scientific discoveries that changed the world for the better. No. All science does not "disagree with the Bible," only the false and utterly pseudo science of evolution.

I've heard D. James Kennedy make a similar claim. It illustrates how misleading many religious right fundamentalists can be. The notion that all of these thinkers were "born again, Bible believing, creationists" is absurd. Now, they may have all be theists in some sense, but they weren't "born-again" Biblical fundamentalists. I don't know the details about many of the thinkers on this list, but I do know of a few.

For instance, Leonardo da Vinci was homosexual; he even had a boy-toy, nicknamed "Salai" which means "offspring of Satan." Does that fit the mold of a "born again, Bible believing, creationist"?

In fact, to categorize any artist or scientist from the Renaissance era as a Biblical fundamentalist is absurd given that Renaissance literally means "rebirth" and the "rebirth" being referred to was that of Pagan Greco-Roman culture.

However one wants to reconcile what the Bible says with the findings of modern science (which this commenter attempts to do), it was the Pagan Ancient Greeks who invented or discovered science and Christendom (the Catholic Church) to its credit, and through thinkers such as Aquinas, incorporated these Pagan Ancient Greek discoveries.

To categorize Newton also as a "born again, Bible believing, creationist" is equally ridiculous. Newton was an anti-Trinitarian who helped to usher in an age (the Enlightenment) which elevated Man's Reason over Biblical Revelation, and saw fit to throw out traditional Christian orthodoxies (like the Trinity) that didn't comport with notions of Man's Reason. He may have been a theist, but he was also an occultist and an alchemist.

Update: Sandefur emailed me with this link which sheds more light on that list.

Saturday, August 20, 2005

Who are the Intelligent Designers?

Richard Posner's brief mention of ID in an otherwise unrelated post caused some stir over at Southern Appeal. Posner characterized ID as "nothing more than thinly veiled biblical inerrancy."

From what I understand on this issue (and I've learned a lot about it through my fellow cohorts here) the ID theorists are all over the place. There really are, on one side of the pro-ID spectrum, cranks who want to teach in the science classrooms that the Bible is inerrant science, that the Earth was created in six literal days and is only a few thousand years old...and, on the other side of the same pro-ID fence, folks who accept that the Earth is billions of years old and that lifeforms share common decent, but posit, as a scientific matter, that life must have had some sort of intelligent origin.

My comment or question to pro-IDers, especially those who claim they do not desire to teach religion or the Bible in the science classroom, how specific ought we be in identifying the attributes of the designer? In fact, would it be appropriate to speak of "the designer" in a singular sense at all? It seems to me that, even if we accept evidence of Intelligent Design, there is no good reason to speak of the Intelligence in a singular sense, that it is just as likely that there are "Intelligent Designers" as opposed to one "Intelligent Designer."

In these debates, I've heard the pro-IDers often speak of life in a mechanistic sense, often describing life as complicatedly designed machines. They argue things like, upon observing a 747 Airplane, someone unfamiliar with it wouldn't conclude that it happened by accident (a tornado through a junkyard). I've heard them say that ID scientists have discovered such things like viruses operate on sophisticated levels of nanotechnology and have built in motors, rotors, and crankshafts.

But few if any of these things which the IDers use as comparisons -- 747s, nanotechnology, machines -- have a "singular" designer. Most pieces of "design" machinery have multiple inventors/designers.

In other words, if there is evidence of ID, who is to say that we weren't "designed" by a group of designers as opposed to a singular designer. Now, I don't believe that aliens came to Earth billions of years ago and "created" humans. But, as a scientific matter, ID cannot prove a Biblical God as a more likely designer than the aliens.

In fact, if anything the reverse is true because the aliens can offer an entirely naturalistic explanation. First, it's entirely likely that intelligent life does exist elsewhere in the universe. Entirely rational, empirically minded thinkers like Carl Sagan believe this. Given the vastness of the universe -- billions of stars in billions of galaxies -- if life occurred here, even if highly improbable that life will occur anywhere, it's also likely that life occurred elsewhere (we just shouldn't expect to see life in every star system; maybe one in every say 500 million or so star systems).

The reason why most skeptically minded folks don't believe that we've been visited by aliens is because there is no credible evidence for it. And that intelligent life does exist outside Earth but never visited Earth makes rational sense as well. Our closest star is around 3 and half light-years away. Given the improbability of life -- especially intelligent life -- occurring in any given solar system, chances are the closet planet with life is hundreds of thousands if not millions of light years away. And if the speed of light is a cosmic speed limit...we could see why we haven't had any intelligent visitors. Still, there may be a way around the speed of light.

There is just no evidence that we've been visited...unless of course we accept that we've been intelligently designed. That right there could be seen as evidence of visitation from extra-planetary intelligent life. Let's do a thought experiment. Given the incredible advancements in technology made in the post-Enlightenment age, and the way in which information ever increases, let's imagine what it will be like if these advances continue ad infinitum. Imagine say a few thousand (or tens or hundreds of thousands of) years go by. And also let's imagine that scientists attempt to create artificial and synthetic lifeforms from things like nanotechnology and design these incredibly lifelike machines that really do have motors, rotors, engines and levers. Let's further imagine scientists ever attempting to make these synthetic machine life-forms closer and closer to real lifeforms to the point where they are given the ability to self replicate. Let's say that scientist get these created lifeform like machines to be so close to actual lifeforms that the distinction between these synthetic machines and real life from nature entirely disappears.

If such a thing occurs, then we will have "created" and "designed" life. And all of this goes down without a supernatural explanation. Now, let's assume that we humans were Intelligently Designed. And let's also say that scientists end up "creating" life out of machines, as I laid out, wouldn't it then be more logical to accept the natural explanation -- that just as we, tangible natural lifeforms, created life, other more advanced, more intelligent natural tangible lifeforms created us? As opposed to some supernatural magical creation.

I know that much of what I've written is speculation and unprovable (that our mechanical and engineering technology will advance to the point where we can, in essence, create life) but so too is the notion that some supernatural monotheistic being created us. And in my hypothetical, there was no one designer, there was a group of designers -- us.

So back to the initial question, if we should teach ID in the public schools and whatnot, when referring to the Intelligent Designers, should it be mandatory that the designer NOT be spoken of as a singular entity but rather as equally possible singular or plural entities?

Friday, August 19, 2005

Slipping and liberalism:

Eugene Volokh requested in a post:

[E]xamples where (1) the opponents of some proposed law, constitutional amendment, or judicial decision argued "this action will be interpreted in this particular bad way" or "this action will set a precedent that will be used to reach this particular bad result," (2) the supporters assured the public that no, of course this won't happen, and (3) some time down the line -- preferably no more than 50 years, just to avoid especially hard questions of causation -- the foretold result did take place, despite the supporters' reassurances. (It doesn't matter whether you like the ultimate result or not; and it also doesn't matter whether you think the assurances were sincere or not.)

This is all in line with Volokh's research demonstrating that, in a legal system built on reasoning by analogy and citing precedents, the slippery slope is alive and well. (Although one criticism I might offer is -- if one looks at "the bigger picture" and sees the United States as one of many "Western" nations, what appears to be a slippery slope via judicial mechanism may be an illusion; as I've noted before, most Western European nations have been going through these exact social, cultural, and economic changes with, in many instances, the court system playing little if any role in bringing them about. So there is slippery slope in the West; I think, however, blaming the courts and the common law system for it may be shortsighted.)

There are many interesting comments on Volokh's post. However, they seem disproportionately to focus on sexual orientation issues. Therefore, I left the following comment.

I think one could argue that Loving v. Virginia sent us down the slippery slope that is leading to gay marriage (To make it clear: I support both the right of interracial marriage AND same-sex marriage).

The rhetoric condemning both interracial and same-sex marriages on grounds of "naturalness," "tradition," and "religion" are uncanny in their similarities.

And certainly, gay rights advocates use Loving as justification for same-sex marriage. Therefore if a court or public policy argument successfully uses Loving as part of the justification for same-sex marriage, we will have "slipped" from interracial marriage to same-sex marriage.

I stressed the interracial marriage point for a reason. Most traditionalist conservatives have come to accept and embrace both the Brown and Loving decisions (at least publicly). Yet, they also argue against same-sex marriage and much of the line of privacy cases, often on slippery slope grounds alone. For instance, Rick Santorum: "the court cannot say there is a right to homosexual conduct..." not because homosexual conduct is bad per se (although he does believe it bad per se) but because we won't be able to then say "no" to these other "bad" things completely unrelated to homosexuality. Or the classic, if we recognize a "right" to same-sex marriage, then we must also recognize a "right" to polygamy.

I'll be fair to the social cons; as Volokh demonstrates, we are on a slope and certainly recognizing a "right" to same-sex marriage (or to even same-sex conduct) supports expanding general liberty and equality rights to other unrelated areas. BUT(!) it's also equally true that the previous expansion of liberty and equality rights -- expansions with which we all now agree were proper like Brown, Loving, and Griswold (that last decision, probably more controversial among the social cons than Loving and Brown) -- led us to "slip" into decisions like Lawrence and Goodridge.

So for instance, it's certainly possible that a "right" to same-sex marriage could "slip" into a "right" to polygamy. But is it fair to then say "no" to same-sex marriage on the basis that it may help to justify an otherwise completely unrelated practice? If the answer is yes, then it seems to me that we could have also said NO to the Lovings on the ground that such a decision could "slip" into same-sex marriage.

It's certainly true that, when one makes an analogy between interracial and same-sex marriage we could draw meaningful social and constitutional distinctions. But it's also equally true that we can draw just as meaningful distinctions between same-sex marriage and polygamy.

This is what we do when we reason by analogy: to make an analogy is to compare apples to oranges. Comparing apples to apples is to compare duplicates. Whenever a court is confronted with extending the reasoning of case "a" to case "b" (or should I say case "a" to "o"), they always have at least two choices: Accept that the similarities between the two are more meaningful than the distinctions and expand the logic or the "right" to the new circumstance; or accept that the distinctions between the two are more meaningful and refuse to expand the "right."

For instance, Volokh's quote from Griswold:

[T]he Court's holding today ... in no way interferes with a State's proper regulation of sexual promiscuity or misconduct. As my Brother Harlan so well stated in [an earlier case in which he argued for a right of married couples to use contraceptives], "Adultery, homosexuality and the like are sexual intimacies which the State forbids ... but the intimacy of husband and wife is necessarily an essential and accepted feature of the in-stitution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality ... or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy."

Or from Griswold's oral arguments (hat tip):

THE COURT: Would your argument concerning these things you've been talking about relating to privacy, invalidate all laws that punish people for bringing about abortions?

MR. EMERSON: No, I think it would not cover the abortion laws Or the sterilization laws, Your Honor. Those--that conduct does not occur in the privacy of the home.

THE COURT: There is some privacy, as a rule, and the individual doesn't generally want it made known.

MR. EMERSON: Well, that aspect of it is true, Your Honor. But those are offenses which do not involve the type of enforcement apparatus as to what goes on in the home that this--

THE COURT: Part of it goes on in the home, undoubtedly.

MR. EMERSON: Part of it does, Your Honor. But the conduct that is being prohibited in the abortion cases [t]akes place outside of the home, normally. There is no violation of the sanctity of the home.

But we know that Griswold did "slip" into these results. But it didn't have to. It's entirely possible that a "right" to same-sex marriage will slip into a "right" to polygamy. Or not. Just as it's entirely possible for a "right" to interracial marriage to "slip" into a right to same-sex marriage...or not. But the slippery slope precautionary principle, if consistently followed, would have left governments free to forbid contraception between married couples and interracial marriages.

Finally, in terms of how long we've been "slipping," arguably we've been "slipping" since 1776. Most of the "slipping" that has been occurring is the ever expansion of liberty and equality rights to new areas. Liberalism, as encapsulated by the Declaration of Independence, is the twin principles of liberty and equality. Note, I agree with Robert Bork and Allan Bloom that the Declaration of Independence and classical liberalism logically demand many of the modern socially liberal results. From Thomas West quoting Allan Bloom's The Closing of the American Mind:

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

When we were first founded on our broad Enlightenment ideals of liberty and equality, there was a historical consensus that these "rights" only belonged to white, propertied, Protestant males. Some of the more visionary thinkers (our key founders: Washington, Adams, Jefferson, Madison, and Franklin) desired rights to have a broader application, to apply to blacks and all (even the unorthodox) religions. But even these Founders were, in many ways, greatly affected by the historical consensus. It's doubtful that any of them desired the full integration of blacks into regular (white) society or, God forbid, giving women the right to vote or letting them outside of the home.

This is why often, it is hard to properly determine what is foundational to America. Often the results depend entirely on whether we "freeze" the Founders in their historical context and examine the comprises they made with broad ideals of liberty and equality, or rather if we examine those broad ideals as ends unto themselves. By "freezing" our founders in historical context, social conservatives can demonstrate that our Founders didn't believing in "rights" for pornography, homosexuality or anything else to do with our modern looser sexual mores. But then again, those founders also practiced slavery, denied women the right to vote, kept them in the home, etc. etc. Liberty and equality as ideal ends in themselves got blacks out of slavery, gave women the right to vote and into the workplace, disestablished all churches and formally granted religious rights to Jews and other non-Christians; but this perspective also militates in favor of modern socially liberal results, because this is the liberal, enlightened tradition of expanding liberty and equality rights.

So ultimately, I think we don't have reason to "fear" the slope because "the slope" in question, really means more liberty, more equality, and a broader more consistent application of these rights. If anything, we have reason to fear refusing to expand liberty and equality rights, because more often than not that is refusing to do justice (see Loving, Brown, Griswold, etc.). Most of the "slippage" on the slope, I would argue (certainly with key reservations -- the topic of another post) has led to desirable results that a consensus of society eventually accepts.

Tuesday, August 16, 2005

Paul Cameron's lies strike again:

Exposing David Barton's phony quotes on our founders and Paul Cameron's phony statistics on gays are truly Sisyphusian tasks. This time the culprit is Rod Parsley who, in an article dated August 9, 2005, is reported as having said:

According to God's Word, the homosexual lifestyle is not only sinful, Parsley asserts, but also deadly. He points to the first chapter of Romans, for instance, in which scripture refers to women abandoning natural relations for unnatural ones and men committing "indecent acts with other men," resulting in their "receiving in themselves the due penalty for their perversion" (Rom. 1:27, NIV).

"Even if you take Romans 1 out of the picture," the author of Silent No More notes, "I'm against homosexual marriage and I'm against the homosexual lifestyle because the average life expectancy of a homosexual and lesbian in the United States is 42 and 45, versus 75 and 79. These people are fighting for a lifestyle that is robbing them of half of their life expectancy."

This of course, is a lie, and has been long debunked over and over again (just do a google on Paul Cameron).

I think one of the reasons why some seemingly reasonable people fell for the statistic around ten years ago is because there was a time -- before the newer medications -- when many gay men did die young of AIDS. However, that Cameron reports lesbians, whose sexual practices are not a very effective transmitter of AIDS (less effective than regular heterosexual coitus) have a life expectancy of "45" should have raised some red flags.

Though many good articles debunk Cameron, Walter Olson's is by far my favorite.

Money quote:

Against this, Cameron and his supporters argue that, according to their survey of obits, even if they don't have AIDS, homosexual males tend to die by their mid-40s (and lesbians by their late 40s). Some downright peculiar results followed from this inference. One is that -- contrary to the opinion of virtually everyone else in the world -- AIDS in fact hasn't reduced gay males' life expectancy by that much -- a few years, at most. Moreover, the obits also recorded lots of violent and accidental deaths. From this Cameron and company concluded not that newsworthy deaths tend to get into newspapers, but that gays must experience shockingly high rates of violent death. With a perfectly straight face they report, for example, that lesbians are at least 300 times more likely to die in car crashes than females of similar ages in general.

Monday, August 15, 2005

Silly pic:

Why did I pay 5 dollars at the mall for this?

Sunday, August 14, 2005

Boston Globe and Sexual Orientation:

An outstanding and very long article on sexual orientation from the Boston Globe. It comprehensively covers all of the prevailing theories on the table about what causes homosexuality or bisexuality.

Most experts who have studied the issue conclude that 1) there is a strong biological component, 2) whatever the causes, the orientation is fixed at a very young age (before five), 3) the orientation is thus, not a choice, but rather a fixed part of one's being.

The identical twins aspect is fascinating. On the one hand, we know sexual orientation is not genetic like eye-color or hair-color because those traits are more are less controlled by a single gene (I'm not a biologist, so feel free to correct me) and are thus possessed identically by both twins. Yet, if one twin is gay, the other identical twin may not necessarily be so. The concordance rate is 50%, which suggests a strong genetic component, but also something else.

The traditional developmental theory, still posited by such groups as NARTH has long been discredited. Supporters of this theory, such as James Dobson, jump on the identical twin discrepancy to attempt to demonstrate that homosexuality is not genetic (i.e., if it were there would be 100% concordance rates like eye-color or hair-color). But as the article demonstrates, when you examine one identical twin who is gay and the other who is straight, there is no apparent evidence of such developmental differences as being the cause of the sexual orientation difference. In fact, not only are the genes the same, but so too is the developmental environment.

The article examines two identical twin boys, right now the age of seven, where one is typical masculine boy, and the other exhibits signs of gender non-conformity, which is a very high predictor for homosexuality (in other words, there is roughly a 75% chance that the boy who likes to play with dolls will turn out to be gay).

As identical twins, Patrick and Thomas began as genetic clones. From the moment they came out of their mother's womb, their environment was about as close to identical as possible - being fed, changed, and plopped into their car seats the same way, having similar relationships with the same nurturing father and mother. Yet before either boy could talk, one showed highly feminine traits while the other appeared to be "all boy," as the moms at the playgrounds say with apologetic shrugs.

"That my sons were different the second they were born, there is no question about it," says the twins' mother.

So what happened between their identical genetic starting point and their births? They spent nine months in utero. In the hunt for what causes people to be gay or straight, that's now the most interesting and potentially enlightening frontier.

In other words, we have two identical genetic entities, and simply by the roll of the dice, one turns out gay, one straight. It's likely that something in utero turned on the "switch" for one, but not the other.

Thursday, August 11, 2005

Anti-discrimination laws and "Special Rights":

Poor John Roberts. At first, I was amused by the social cons having reservations about Roberts and his pro-bono work on Romer v. Evans. Now I'm starting to be saddened by the anti-gay vitriol.

Paul Cella's post on the matter quotes Scalia's dissent from Romer and brings to mind what these laws are all about. One common mantra from the anti-gay forces is that these laws are "special rights" for homosexuals. One problem that I have with the rhetoric against such statutes is the utter double standards employed in criticizing sexual orientation codes. If they really do constitute "special rights" for homosexuals, then every other category protected in anti-discrimination codes likewise grants "special rights" to the minority, or even majority groups protected. "Race"? Special rights for blacks. "Gender"? Special rights for women. "Age"? Special rights for the elderly.

At least Justice Scalia, in his dissent, seemed to indicate that there is nothing "special" about granting such "special rights" to particular groups: "The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status to people who are homosexuals; they can be favored for many reasons -- for example, because they are senior citizens or members of racial minorities."

But this still begs the question whether any of these anti-discrimination codes, regardless of which categories they protect, be it race, religion, gender, or sexual orientation, give "special rights" to any of these groups. Arguably they do not. Well...yes and no.

In theory, the way that just about every anti-discrimination code is written, special rights are not granted to any minority group. Rather they protect everyone equally. Huh? Yes. Read the codes. They way they are drafted, they say such things as, "it is illegal to discriminate on the basis of race, gender, religion, sexual orientation, etc." They do not say, "it is illegal to discriminate on the basis of being black, women, gay" or otherwise specify that the minority groups get "special" rights to the exclusion of the majorities. In other words, white is a race just as black is a race, male is a gender as female is a gender and heterosexual is a sexual orientation as homosexual or bisexual are sexual orientations. And there are cases in every category establishing that the so called "majority" (whether it's white, male, or straight) are protected categories under such statutes.

So how can a statute which equally protects whites with blacks, men with women, and heterosexuals with homosexuals and bisexuals, be considered granting "special rights" to any minority group? Rather the codes equally protect all. We all have a race, gender and sexual orientation; we are all protected equally....well, that is the way that I, as a libertarian, (and some moderates and conservatives as well) desire the statutes to operate in the real world. (In a first best world, as a libertarian, I think only the government should be forbidden from discriminating on the basis of these categories. However, if we have to have anti-discrimination laws in the private sector, sexual orientation should be a protected category and all of these categories should protect the so called majority groups equally with the minority groups).

In practice, the minority groups probably do receive special protection, and that is unfortunate. First off, some leftist civil rights theorist support such blatant double standards. As Mary Francis Berry once said, "Civil rights laws were not passed to protect the rights of white men and do not apply to them." In other words, "race" does mean only "black" or at the very least "not white," "gender" means "female" and so on and so forth. Few if any courts endorse this interpretation. And if they do, Supreme Court precedent interpreting these statutes does not. However, the Supreme Court has allowed for affirmative action programs which do give special rights to minorities to the exclusion of the majorities.

And then there is the problem of presumption. Even if in theory, these laws are supposed to protect all groups equally, when a member of the "less dominant" groups (I shouldn't say "minority" because women are a statistical majority) suffers an adverse employment decision, they can more easily claim "discrimination" than a member of a "majority" group. In other words, someone who happens to be black, female or gay gets fired, "I was fired because I was black, female, or gay." Well maybe, or maybe it was because of incompetence. But someone who happens to be white, male or straight gets fired, such people are presumed fired for legitimate reason unless it was clear -- like smoking gun evidence -- that his race, gender, or sexual orientation was used as a reason for the firing.

At least, this is how I observe these laws operating in the real world. Feel free to challenge me on this.

But to tie things back to Romer. One of the things that was most offensive about Amendment 2 was the way it singled out and targeted gays and bisexuals. That, by itself, I think was the legitimate grounds for the Romer verdict. As I noted above, these sexual orientation codes DO NOT single homosexuals and bisexuals for special protection; rather they generically protect the category of "sexual orientation," which, in theory, protects everyone's sexual orientation equally. Yet, Amendment 2 itself stated,

No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.

It went far beyond it needed to. If Amendment 2 simply said, "sexual orientation" shall not be a protected category, I think it would have been much harder to hold it unconstitutional, because at the very least, you could argue that heterosexuals are getting their "special rights" taken away right with homosexuals and bisexuals.

I think a good thought experiment to see whether you really believe Amendment 2 to be constitutional is replace, "homosexual, lesbian, or bisexual" with other categories. Imagine, No Protected Status for "Blacks, Hispanics, or Asians." Originalist could argue that the 14th Amendment clearly was concerned with race discrimination. But how about,

No Protected Status for the status of being Female. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby the Female Gender shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.

Arguably the 14th Amendment was as unconcerned with protecting "gender" as with "sexual orientation." Gender didn't even receive 14th Amendment protection until the 1970s. It seems to me that an Original Intent conservative would have no grounds for objecting to such a statute that not only removes the category of "gender" from receiving special protection, but singles Females out specifically.

Wednesday, August 10, 2005

Mick Jagger & The Neocons:

Mick Jagger & The Rolling Stones have a new tune out -- "Sweet Neocon" -- slamming Condi Rice.

They should stick to writing about what they know -- doing a lot of drugs, boffing supermodels, being super-rich and all that.

It could be though, that Mick Jagger has an especial loathing for the "neocons" after the intense criticisms that the intellectual godfather of many neocons, Allan Bloom, levied against Jagger.

I posted in more detail about this passage on Jagger, whom Bloom regarded as the epitome of everything wrong with rock culture, from The Closing of the American Mind.
This strong stimulant, which Nietzsche called Nihiline, was for a very long time, epitomized in a single figure, Mick Jagger. A shrewd, middle-class boy, he played the possessed lower class demon and teen-aged satyr up until he was forty, with one eye on the mobs of children of both sexes whom he stimulated to a sensual frenzy and the other eye winking at the unerotic, commercially motivated adults who handled the money. In his act he was male and female, heterosexual and homosexual; unencumbered by modesty, he could enter everyone's dreams, promising to do everything with everyone; and, above all, he legitimated drugs, which were the real thrill that parents and policemen conspired to deny his youthful audience.* He was beyond the law, moral and political, and thumbed his nose at it. Along with all this, there were nasty little appeals to the suppressed inclinations toward sexism, racism and violence, indulgence in which is not now publicly respectable. Nevertheless, he managed not to appear to contradict the rock ideal of a universal classless society founded on love, with the distinction between brotherly and bodily blurred. He was the hero and the model for countless young persons in universities, as well as elsewhere. I discovered that students who boasted of having no heroes secretly had a passion to be like Mick Jagger, to live his life, have his fame. They were ashamed to admit this in a university, although I am not certain that the reason has anything to do with a higher standard of taste. IT is probably that they are not supposed to have heroes. Rock music itself and talking about it with infinite seriousness are perfectly respectable. It has proved to be the ultimate leveler of intellectual snobbism. But it is not respectable to think of it as providing weak and ordinary persons with a fashionable behavior, the imitation of which will make others esteem them and boost their own self-esteem. Unaware and unwillingly, however, Mick Jagger played the role in their lives that Napoleon played in the lives of ordinary young Frenchmen throughout the nineteenth century. Everyone else was so boring and unable to charm youthful passions. Jagger caught on.

You can read more here.

Tuesday, August 09, 2005

Lost in the scroll:

One of the major drawbacks of blogs is the "scroll" format in which our posts are presented. We bloggers put a lot of thought into many of these posts, people read or skim them, enjoy the posts briefly and then the posts get lost in our archives and probably forgotten.

So what I have decided to do is on those days when I don't have anything new to post (and expect a fair number of those days when the Fall semester starts in a few weeks), to dig up what I think is a good, informative, essay type post in my archives.

Here is an excerpt from one such post on Walter Berns and his understanding of the Fourteenth Amendment; specifically, Berns attempts to clarify the proper meaning behind each clause.

Equal Protection restrains state executives:

[T]he equal protection clause…when read literally, says nothing to the state legislatures, but it says something of real importance to the state executives. They are now forbidden to “deny to [i.e., withhold from] any person within [their] jurisdiction the equal protection of the laws.” Governors and sheriffs and the rest were now, for the first time, under a national constitutional obligation to provide the protection of the laws to any person within the jurisdiction of their states or counties, whether resident or visitor, citizen or alien, black or white, adult or child, male or female. p. 212.

In other words, this is “procedural” not substantive equality. The clause has nothing to do with whether a particular law that draws distinctions between classes of citizens is constitutional or not, but rather demands that law enforcement give the full protection of generic laws to all citizens. For instance, if a law forbids murder, theft, or assault, then law enforcement must protect blacks fully under those laws as they would whites (and this wasn’t being done in the Jim Crow South—if a white assaulted a black [or a white for that matter who violated the “color line” by doing business with blacks], local yahoos would subject these folks to violence and local law enforcement would ignore, or otherwise not adequately handle, the matter. Indeed, often the local law enforcement and the criminal yahoos were the same people!).

Due Process of law was directed at the judicial system, demanding a fair and impartial process:

Berns believes substantive due process to be an oxymoron.

Read literally, the due process clause…imposes restrictions not on state legislatures or on the kind of laws they may enact but on state courts.[] It forbids those courts “to deprive any person of life, liberty, or property, without due process of law”; which is to say, when imposing punishments or penalties on any person, the state courts are now under a national constitutional obligation to follow the accepted processes of law. Ibid.

Here he is on some of the earliest substantive due process cases:

Louisiana had enacted a statute forbidding the purchase of insurance from out-of-state companies and had sought to recover a sum of $3,000 from a New Orleans cotton merchant who had insured a shipment with a New York company. Whatever might be said against the purpose or substance of the statute, Louisiana had not violated legal process by adopting or enforcing it. The Supreme Court nevertheless declared it to be a violation of due process. It said the liberty protected by the clause included the liberty to enter into contracts and then proceeded to say, in effect, that the states were forbidden to deprive any person of this liberty no matter what process, due or undue, it followed. Again, to refer to two later cases, there is nothing in the language of the clause enabling judges to distinguish between miners and bakers, or, more precisely, between a law limiting the hours of employment of miners and a law limiting the hours of employment of bakers. The Supreme Court, nevertheless, upheld the miners law and struck down the bakers law, and it did so for reasons having nothing whatever to do with the process of law. p. 213.

Again, during the worst of Jim Crow, the court processes involving blacks were anything but “fair and impartial.”

Privileges or Immunities Clause—finally we get to our “substantive rights” (that would prevent state legislatures [or constitutions] from having laws that conflict with such rights):

Now here is where Berns, to his credit, distinguishes himself from Bork, et al., who holds the “privileges or immunities clause” to be an “inkblot,” thus a “meaningless” provision of the Constitution. Berns believes that this clause was one of the most important and meaningful provisions of the Fourteenth Amendment. Moreover, he calls the Slaughterhouse decision that nullified the clause, “ridiculous.”

According to Berns, this clause clearly was intended to be the source of substantive “equality” and other rights. But here’s Berns’s rub: The Supreme Court, by itself, was not granted the power to “find” or “define” those rights—that’s Congress’s job. And Congress clearly didn’t do its job: “Nor did Congress make a serious effort to exercise the other major power granted it by the Fourteenth Amendment, that of enumerating the privileges or immunities belonging to national citizenship.” p. 210.

So as it turns out Brown v. Board of Education did indeed involve an issue that the federal government could properly have jurisdiction over (the federal government did indeed have the power to outlaw such segregation, as Berns thinks ought to have been done). However, in the absence of specific Congressional action, the Court had no power to stop segregation:

Specifically, if New York may, by law or constitutional provision, declare that one of the privileges of New York citizenship is to sue in its courts, would it not seem an appropriate exercise of the power granted in section 5 of the Fourteenth Amendment for Congress, by law and in the course of time, to declare that one of the privileges of national citizenship is to attend a nonsegregated public school? (A privilege that may not be abridged by “any law” of any state?) p. 211.

But the right to “equality,” both substantive and procedural, is part of the organic law that founds this nation. That “all men are created equal” necessarily implies that government doesn’t have the right to treat blacks in a subservient manner to whites. Berns’s position on Brown is a clear example of how paying fidelity to the procedures of Constitutionalism not only does not fully secure our natural rights, but often acts as a “check” against them. A constitutional technicality means that blacks don’t get their “equal” right to attend a public school secured. Likewise, if Congress did nothing to state that an individual has a “privilege” to marry someone outside of his race, Berns would certainly hold that a state may forbid this.

Except for the notion that the Court, on its own, has no right to enforce our “privileges or immunities,” I find Berns’s analysis sound, far sounder than Bork’s, et al.

Monday, August 08, 2005

Sunday, August 07, 2005

"Founding" Iraq:

Allan Bloom once said, "[The Chinese] have Deng Xiaoping to deconstruct their Statute of Liberty. We owe them something better." (Giants and Dwarfs, p. 31) He was referring to the rejection of Enlightenment based notions of rationalism and bourgeois liberalism in favor of postmodern "deconstructionism." In particular, our dominant schools were giving advice to Chinese students that when it came to their educational reforms they should look not to thinkers like "John Locke, the philosopher of liberalism," but rather thinkers like Frantz Fanon, a disciple of Sarte.

I think this is relevant to Iraq in that we owe the people of Iraq something better than an illiberal form of government which they may very well get. What has worked so well in the West is liberal democracy -- the notion of unalienable individual rights, that men are by nature, born free and equal and that no government may by right contradict this Truth.

Where the deconstructionists may have a kernel of Truth is that liberal democracy makes quite a lofty claim -- that it is Truth, accessible to man as man through his Reason, universally applicable everywhere to everyone -- and this claim of Truth, in reality, may be hard if not impossible to substantiate.

This is a question with which Bloom and Strauss grappled. And they concluded that even if, at bottom, Nietzsche was right (and I think they thought he was) that God doesn't exist, that the natural law is a fiction, and that rights aren't grounded in nature, this is not a "solid" place to found a political order (Heidegger's support of Nazi Germany aptly demonstrated this).

We need some sort of solid foundation upon which to build a political order -- not postmodern relativism, not any kind of revealed religion be it Islam, Christianity, or whatever, but a "rights" oriented democracy, if for no other reason than the positive results yielded by this two hundred and some year Enlightenment experiment.

I disagree with Sandefur, however, that it is the job of America to stay in Iraq and make sure we see such a liberal form of government bear fruition, in its fullest form. Rather, I think, what we need to do is what our Founders did. We need to set Iraq up with a formal constitutional structure, one that, in its ideals, is a rights oriented liberal democracy, but also accept realistic compromises with those ideals. In other words, plant the seeds of liberal democracy, of freedom and equality, that will over time grow and transform Iraq in our direction. And we need to get out after planting those seeds.

Let us not forget, the forces of religious orthodoxy had a far greater hold over society during the founding era and Church & State were far more integrated. Yet, the Enlightenment ideals upon which we were founded -- that all men have unalienable free and equal rights of conscience, that such rights belong not only to orthodox Christians, but men who in Jefferson's words, worshipped no God or twenty Gods -- were flatly incompatible with many of the common practices of the day: State Established Churches, all religious tests, violations of the free exercise of and denial of equal government privileges to any religion (Christian or non-Christian), etc.

We could have attempted to remake society all at once, like the French did in their revolution (which was done in the name of the same Enlightenment principles of "liberty & equality," "rights of man," etc.); but we saw where that led.

Instead we allowed for such compromises with our ideals; but at the same time, changes, consistent with our ideals, would occur gradually over time. And over time the US did transform. Slavery, state established Churches, denial of formal religious rights to any religion (orthodox or not), were done away with precisely because of our Founding ideals. We also got formal civil and voting rights for blacks and women, greater "lifestyle" freedoms, etc., again because of our Founders putting liberty, equality and "rights" at the center of political concerns; even though imposing these outcomes all at once in 1789 would have been impossible and some of those outcomes, such as women getting the right to vote, blacks being fully integrated into civil society with whites, the freedom to view pornography or to engage in sodomy, unthinkable.

Iraq should be founded on certain ideals: Ideals of religious equality, gender equality, democracy and rights. But obviously, we shouldn't try to remake Iraq overnight. Instead let the changes occur more gradually. Set up an independent judiciary with the power (hopefully) to strike down legislation inconsistent with the Constitution. And also, like our Founders, make those ideals purposefully brief, vague and flexible. This will allow for the imposition of more specific norms relating to those general ideals at later times when the nation is ready for them.

Finally, the "religious" question. It's very important, if Islam is to be considered a source of legislation at all, it be given a lower level of priority against the natural liberal democratic rights of liberty and equality, just as Christianity was during our Founding.

Neither the Constitution nor the Declaration of Independence state that Christianity is a source of legislation. And, contrary to the claims of the religious right revisionists, the principles contained therein are products of modern Enlightenment philosophy. But such principles, however, are compatible with certain forms of Christianity. Christianity's claim to law during our Founding was, at best, a source of legislation for the common law. Now, this was a contentious claim; Jefferson vehemently rejected it and remonstrated greatly against such a notion calling it a judicial "usurpation." But even if Christianity is part of the common law, there is no question where the common law is in its level of priority as a "source of law": The common law occupies one of the lowest rungs on the latter. The common law can be changed or amended by a state statute. And the common law certainly gets trumped by the various provisions of the state and federal constitutions and the organic law of the US (The Declaration and its natural law/natural rights theory).

As Walter Berns wrote in Making Patriots,

But there is no disagreement about the place of the common law. Indeed one of the first things done by the states after independence was to declare (here in the words of the New Jersey constitution of 1776) that "the common law of [has] been heretofore practiced in this Colony, shall remain in force, until [it] shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter [or constitution]."

But if the "rights and privileges" contained in the various state charters or constitutions included the right of liberty of conscience, and if, in turn, this right required, in Madison's words, "a perfect separation between ecclesiastical and civil matters," what did it mean to say that Christianity was part of the common law? Very little, as it turned out; and it turned out as it had to turn out. p. 33

This is important. Christianity, of course, posits certain norms which are entirely consistent with civil legislation, and therefore are perfectly acceptable sources for the law -- for instance, "thou shalt not murder," "thou shalt not steal...." But other norms, for instance, "thou shalt have no Gods before me" would be repugnant to liberty of conscience if put into the civil law and are thus entirely inappropriate for civil legislation.

Islam too could be an acceptable source for civil legislation in Iraq as long as it's understood that the theory of natural rights ultimately trumps and controls regarding which parts of Islam are appropriate for civil legislation and which parts are properly consigned to the private sphere.

Saturday, August 06, 2005


I wonder if she'll take half! This story brings back fond memories of Eddie Murphy's outstanding Raw (his sequel to the even better Delirious).

Murphy spent a great deal of time in Raw, in the mid-80s, explaining why he, in his mid-20s, didn't plan on marrying any time soon. In fact, he was about to get married, but it fell through; so you can tell this heavily weighed on his mind.

One of the main reasons was that, absent a prenup and often even with one, family law typically awards the other spouse 1/2 of everything the couple made together in their marriage. He used Johnny Carson's recent divorce as his foil. Obviously Carson's wife didn't make half of their fortune; but he had to give her tens if not hundreds of millions anyway (I think 50 million was the figure).

But, a few years later, Murphy got married anyway to a strikingly beautiful (and very tall) woman. But now, it appears that is all over.

(Oh yeah, in the meantime, it was revealed that Murphy, who ridiculed gays in his act, apparently had a fetish for transvestites, and probably cheated on his wife with them.)

Murphy made tons of dough before he got married. And even though he has made a lot of (mostly) bombs since his marriage, he has still made quite a bit in that time period, I'm sure.

Now if she really gets 1/2 of everything he made since he married her...Ha! Poetic justice and his premonition comes true.

Thursday, August 04, 2005

US is not a covenant nation:

Tonight on Pax and August 6 on TBS, D. James Kennedy's "Christian Nation" special re-airs. I saw it over the weekend. I don't know if I am going to post a detailed review because much of what it told was not new to me and I already answered most of the special's claims here, here, here and here.

One claim that I found especially dubious in lieu of the evidence is that the US is a nation that covenanted with the God of the Bible during the Founding of 1776 and 1787. Donald Lutz, a professor of political philosophy at the University of Houston, whose claim to fame is some study purporting to show that 15,000 documents written during America's founding era quote the Bible, specifically Deuteronomy, more than any other source, made this claim as well on the special. It's true, as noted, that colonial charters of the earlier generation, probably all of them save Rhode Island, did in fact covenant with the Trinitarian God of the Bible. And let us not forget they also imposed religious tests requiring such beliefs for holding public office.

But the distinctive feature of our national Founding is the fact that no such covenanting occurred. Search the documents -- whereas you can point to specific language of covenants in the earlier colonial charters, such covenantial language is entirely absent from the Declaration and the Constitution. And the Constitution, in Article VI, explicitly forbids any kind of religious test for holding public office. This is the thesis of Gary North's Ebook, which despite its shortcomings, is closer to the Truth about whether we were founded as a "Christian Nation" in a public or civil sense than Kennedy's special.

The Constitution is entirely Godless. And even though the Declaration invokes [Nature's] God, His role in political philosophy is clear: God grants natural rights and governments are instituted among men to secure such unalienable rights. The government, however, is a social contract between the government and the people, and receives its ultimate legitimacy from the consent of the governed, not from God. Both the Declaration and the Constitution make this clear.

We were founded on Hobbsean/Lockean social contract/state of nature political philosophy. At best, one could say that such a theory is compatible with Christianity, as Locke argued.

But even though the Constitution and the Declaration do not explicitly covenant with the God of the Bible as the colonial charters from the earlier generations do, the special just ignores reality and claims that our Founding did covenant with the God of the Bible. It boggles the mind. Black is white; up is down.

Monday, August 01, 2005

Read this article with a grain of salt:

This piece was written by a Christian conservative who was the former student of an openly gay professor. It obviously tells one side of the story only; but if what's written in it is true, the gay professor acted entirely inappropriate in regard to discussing his personal life and sexual issues in general.

If we simply switched things around so the professor said and did the exact same things, but was a heterosexual talking about heterosexual sex, he would be fired for sexual harassment. This professor did in fact allegedly speak of graphic heterosexual sex as well; so he could be in trouble on those grounds even without the switcheroo.

There are plenty of bigoted, anti-gay responses in the comments section at FPM (what do you expect?). The overwhelming majority of gay professors, I guarantee, do not act like this in class. This story better illustrates the fact that colleges more likely tolerate discriminatory treatment against folks with un-PC views and that students in college are more likely to have PC views shoved down their throats than un-PC views. Also that you can get away with "offending" certain less preferred groups like conservative Christians or white males...but say even seemingly minor things against the "sacred" groups and official or unofficial (shunning, name calling) penalties will follow.

The opening line is a classic. And it's quite an amusing read.