Wednesday, November 30, 2005

The Dark Side:

I'm not entirely convinced that this fundamentalist woman from Trading Spouses is who she appears to be. If you look carefully you may conclude that she is, in reality, John Hagee in drag.
MoJo on the Religious Right:

I can't say I agree with everything they write in this issue (for instance, I don't think it's proper to associate Marvin Olasky with Christian Reconstructionism), but it's certainly interesting to see Mother Jones's critical take on the religious right, to which they devote their entire December issue.

The best part of their issue is the lead article by Susan Jacoby on the secular origins of the US Constitution. She basically summarizes passages in her book Freethinkers: A History of American Secularism, about the secularism of founding era America and its impact on our Constitution. Although her thesis, that the Constitution was revolutionary for the time in leaving God out of it, and in having entirely secular aims, is quite correct, it was originally put forth a few years earlier by two Cornell scholars in their book entitled The Godless Constitution.

Sunday, November 27, 2005

George Washington...LIIEEEEEEEEED!!

The historical record is clear: George Washington was intimately connected with the Freemasons. He even prayed to the Mason's "Great Architect of the Universe." From his December 27, 1792 letter to Massachusetts Masons Grand Lodge, "I sincerely pray that the Great Architect of the Universe may bless you and receive you hereafter into his immortal Temple."

Interestingly these anti-Masonic, Illuminati fearing religious lunatics existed back then as they do today (and probably held more social and legal power then as well). And they pestered George Washington about his involvement with the Freemasons, leading him to lie about it.

When George Washington received a conspiratorial letter from one George Washington Snyder warning him about the Freemasons and their connection with the Illuminati, instead of replying [Clarence Beeks voice]"F*ck Off, Crackpot!"[/Clarence Beeks voice], Washington, ever conciliatory even to the point of lying, wrote:

I have heard much of the nefarious, and dangerous plan, and doctrines of the Illuminati, but never saw the Book until you were pleased to send it to me.9 The same causes which have prevented my acknowledging the receipt of your letter have prevented my reading the Book, hitherto; namely, the multiplicity of matters which pressed upon me before, and the debilitated state in which I was left after, a severe fever had been removed. And which allows me to add little more now, than thanks for your kind wishes and favourable sentiments, except to correct an error you have run into, of my Presiding over the English lodges in this Country. The fact is, I preside over none, nor have I been in one more than once or twice, within the last thirty years. I believe notwithstanding, that none of the Lodges in this Country are contaminated with the principles ascribed to the Society of the Illuminati. With respect I am &c.

But we know that Washington was far more involved with the Masons than "once or twice, within the last thirty years." Washington was a Master Mason who, when he died, was buried with full-Masonic rites.

Saturday, November 26, 2005

Got a New Scanner:

Well, actually someone gave me their old scanner which was better than the one I had. Here is a pic of me from when I was around 10 years old. I think it was taken in Canada.

Update: My Dad writes in the comments that the pic was actually taken in Naples, Florida and that Pelicans aren't indigenous to Nova Scotia.

Friday, November 25, 2005

Jefferson on Washington's Disbelief and Religious Closets:

The following is taken from the notes of Thomas Jefferson on February 1, 1800, and the subject is George Washington's lack of belief in the Christian religion.

Dr. Rush tells me that he had it from Asa Green that when the clergy addressed Genl. Washington on his departure from the govmt, it was observed in their consultation that he had never on any occasion said a word to the public which showed a belief in the Xn religion and they thot they should so pen their address as to force him at length to declare publicly whether he was a Christian or not. They did so. However he observed the old fox was too cunning for them. He answered every article of their address particularly except that, which he passed over without notice. Rush observes he never did say a word on the subject in any of his public papers except in his valedictory letter to the Governors of the states when he resigned his commission in the army, wherein he speaks of the benign influence of the Christian religion.

I know that Gouverneur Morris, who pretended to be in his secrets & believed himself to be so, has often told me that Genl. Washington believed no more of that system than he himself did.

That little passage is very telling and hopefully sheds light on the Christian v. Deist controversy about our Founding. As I've discovered in researching this issue over the past few years, both sides posit myth. The secular side argues, "our founders were almost all Deists" and the other side, "our founders were almost all orthodox Christians." The truth is far more nuanced and lies somewhere in between.

We know from their writings that founders like Jefferson, Adams, and Franklin explicitly rejected the tenets of orthodox Christianity. However, their most anti-clerical and radical rejection of orthodoxy came from their private correspondence. Thomas Paine was very public about his unorthodoxy and was personally ruined for it. Jefferson was almost ruined by the tamer stuff (than what we see in his personal letters) he wrote about religion in Notes on the State of Virginia. And Adams's Federalist clergy supporters in the 1800 election (Jefferson's enemies) apparently were completely unaware of Adams's unorthodox beliefs and would have flipped out if they were privy to the anti-clerical content in the letters he wrote to Jefferson (later in their lives).

Back then one could not get in social or legal trouble for publicly affirming the tenets of orthodox Christianity, but one likely would get in trouble for publicly denying such tenets. We even see from the above passage that, if one was silent as to one's religious beliefs, there was strong social pressure to affirm publicly one's orthodoxy. And that's something neither George Washington nor James Madison did.

In my humble opinion (and apparently in Jefferson's and Morris's), Washington's (and Madison's) silence on their personal religious beliefs points in the direction of their belief in the deistic-unitarian natural religion in which Jefferson, Adams, and Franklin believed.

Understanding this helps to demonstrate the main flaw in the late M.E. Bradford's categorization method where he notes that only three of the signers of the Constitution were "Deists," the rest professed orthodox Christianity. This is so misleading that it becomes factually false. Bradford simply looked at those founders who were open "Deists" and had no connection with any Christian Church and put them in the Deist box. All of the other Founders were in some way connected to a Christian Church. Bradford's "Deists" were Hugh Williamson of North Carolina, James Wilson and Benjamin Franklin of Pennsylvania. So men like Washington, Madison, and Morris, because they were in some way affiliated with "Christian" Churches, were "orthodox Christians." Were Jefferson a signer of the Constitution, he too would have been put in Bradford's "orthodox Christian" box.

There is simply no credible historical evidence that "Christians" like Washington, Madison, Morris, and many other signers of the Constitution had personal religious beliefs that differed in any meaningful way from Jefferson's and Franklin's. In short, Bradford's analysis fails to deal with the fact that many Founders whom he categorizes as "orthodox Christians," were exactly like Jefferson: They only nominally belonged to their Churches, privately rejected the tenets of orthodox Christianity, and otherwise possessed unorthodox beliefs. They were, "in the closet," so to speak, about their unorthodoxy.

Not intending to make an analogy to homosexuality, but whenever there is social and/or legal pressure against X, those who are involved with X tend to "be in the closet." Washington and Madison, and to a lesser extent, Adams, were closet heretics. Jefferson was less so but not as "out" as some people think he was. Thomas Paine was totally "out" and had his public reputation ruined for his candor.

And these founders didn't approve of the way in which the forces of "religious correctness" could exert such power. They looked forward to the day where not only could people wear their religious unorthodoxy on their sleeve but when their unorthodox heretical beliefs would transform the Christian religion itself. As Jefferson wrote in 1822, "I trust that there is not a young man now living in the United States who will not die a Unitarian."

While Jefferson was wrong in the speed in which unorthodoxy would replace orthodoxy, there certainly was a kernel of reality to his prediction. Think about how many orthodox religions have now incorporated unorthodox beliefs. Think about how many Christian Churches now have openly gay ministers and would perform same-sex weddings. Even in Jefferson's time, think about how the Puritan Congregational Churches of Massachusetts became Unitarian Congregations.

We have those Founders to thank for such changes.

Thursday, November 24, 2005

Happy Thanksgiving:

Check out this article by Jeff Jacoby on our Puritan origins. Jacoby's article features the history of blue laws in Massachusetts and illustrates, in many ways, how deeply flawed and tyrannical the Puritan's system was and how it represented the antithesis of the ideals of liberty and equality on which we were founded in 1776.

Ah, yes, the blue laws -- those rules and regulations imposed by New England's 17th-century Puritan theocrats to govern moral conduct and ensure proper observance of the Sabbath. The product of an era when "witches" were hanged, blue laws dictated what people could wear, forbade travel on Sunday, and made it an offense to miss church. The Puritans "carried their efforts to control private activities in the Massachusetts Bay Colony to extremes unknown elsewhere," notes the Family Encyclopedia of American History. For example, church doors were bolted during Sunday services to prevent restless congregants from leaving early.

It is hard to imagine how these laws could have survived the ratification of the Bill of Rights. But survive they did, some of them for centuries. In Massachusetts, Chapter 136 long barred most commercial activity on Sundays and legal holidays. Not even Cotton Mather would have been able to make sense of the anachronistic crazy quilt of definitions and loopholes that the law turned into over time. The same statute that barred shops and businesses from operating on "common days of rest" also listed dozens of exceptions to the rule, including the sale of nitrogen, the operation of garden centers and public bathhouses, and the transportation of ice, bees, or Irish moss. Supermarkets weren't allowed to sell groceries, but convenience stores were. Buying a painting at an art gallery was OK. Buying paint at Home Depot was forbidden.

In 1994 Massachusetts voters finally made it lawful for all stores to open on Sunday and the summer holidays -- Memorial Day, Labor Day, and the Fourth of July. But the old restrictions, as illogical as ever, still apply on Thanksgiving and Christmas.

Monday, November 21, 2005

Man this guy can shred:

I first became aware of guitarist Michael Angelo when I saw his video around 1990 for the band Nitro. They were a virtuositic metal band who made some pretty bad (and by that I mean "not good") music.

I like some of his current stuff I've seen on his website. Check out his video for Hands Without Shadows.

The singer in Nitro -- Jim Gillette -- is also a virtuoso, known for his "mind-blowing 6-octave voice and ability to shatter glass at will." In the meantime, Gillette has beefed up to 260, taken up Gracie jujitsu (although I don't think he fights in mixed-martial arts like the UFC or Pride) and married Lita Ford with whom he has two children.

The things that you can find out about by doing a google search!

Thanks to Eric at Classical Values (also check out Eric's post on the bridge that I drive home from work every day) and Dave at Juxtaposition Virus for the links.

Friday, November 18, 2005

Newdow, Equality, & Establishment:

Michael Newdow is at it again, this time trying to get "In God we Trust" off our currency. I have seen him talk about this on a few TV shows and he explicitly makes appeals to equality and Founding principles, asserting they are on his side. And he is half-right.

He makes an analogy, quite apt, to segregation. When asked on FOX News, "How could you compare the two?," he replied "How can you not compare the two?" He argues that "In God we Trust" is even worse than race segregation because with Jim Crow, at least there was a pretense of equality as long as things were kept separate. With "In God We Trust," atheists are categorically treated like second-class citizens with no pretense of their consciences being equal.

The ideals of the Founding contained in the Declaration of Independence, the Constitution, and the 14th Amendment are generally speaking, Liberty and Equality. Religious rights stem from our unalienable rights of conscience, which apply equally to all religious creeds no matter how orthodox or unorthodox.

And while we can argue whether its proper to extend liberty and equality to certain specific matters with which the founders were unconcerned, for instance, sexual orientation, we cannot argue over religion: Liberty and equality of conscience are at the heart of our founding principles of natural law and natural rights.

[Note: See some of Clayton Cramer's recent posts where he cites some founding era state constitutions which may conflict with my assertion that "our unalienable rights of conscience...apply equally to all religious creeds no matter how orthodox or unorthodox." There is no question that the natural rights theory which undergirds our founding protects all religions, and that our most philosophically minded founders like Jefferson, Madison, Washington, and others, believed this way too. Apparently, not all of the states would go so far. However, as Cramer notes, many of those states believed in protecting Protestants only -- sometimes going so far as to impose Protestant religious tests for public office -- and we wouldn't dream of imputing this as a constitutional standard today. How would Jews, Catholics, and Mormons feel if we determined that the First Amendment didn't protect their religious rights? And those provisions of those state constitutions sharply contrast with the federal Constitution's Article VI, which by its very text prohibits all religious tests for public office, and was understood by those who ratified it (prompting some folks to vote against the Constitution) to apply equally to all Christian sects and "Jews, Mahometans, pagans." The proper way to interpret this contrast is not that the Federal government gave its stamp of approval to such state religious tests, even though they were constitutionally permitted, but that the federal Constitution's Article VI helped to fully secure the rights of conscience at the federal level, while leaving the states free to violate the rights of conscience with such illiberal religious tests.]

Sometimes technical constitutional matters can confute the proper analysis. For instance, it's possible to argue convincingly that the Establishment Clause simply refers to a national sect or "Establishment" of religion, e.g., the Anglican Church, or the Catholic Church. But even if we conclude this, the inquiry doesn't stop there; we still have other doctrines which may be relevant. For instance, the federal government could not violate liberty or equality of conscience because it is (or at least it was) one of limited, enumerated powers and was never granted any power over the rights of conscience. Such an understanding would render the Bill or Rights superfluous. And indeed, some key framers argued exactly that: We don't need a Bill of Rights because of the doctrine of limited, enumerated powers. And once those specific rights are enumerated, government may then get the wrong idea that it can abridge whatever has not been put on the list. Hence, Madison et al. gave us a Ninth Amendment.

While seeing Philip Hamburger, author of Separation of Church and State (which argues against that constitutional doctrine), speak at Princeton, he noted that "the Establishment Clause is not an Equal Protection Clause," to which university provost Christopher Eisengruber, in his rejoinder, cleverly replied, "yes, but the Equal Protection Clause is an Equal Protection Clause."

Thus, much of what the Supreme Court has the Establishment Clause doing -- perhaps improperly -- under the doctrine of Separation of Church and State, would be better done under the Equal Protection Clause or under the recognition that individuals have a constitutional right to equality of conscience, that, just as with race, government must treat the religions or lack-thereof, equally. This is what Akhil Amar argues for. See my past post, where I reproduce an argument from his book on the Bill of Rights and the 14th Amendment:

Perhaps the greatest elaboration came from Thomas Cooley's influential 1868 treatise. Under prevailing state constitutions, wrote Cooley, states generally could not enact "[a]ny law respecting an establishment of religion....There is not religious liberty where any one sect is favored by the State....It is not toleration which is established in our system, but religious equality." Even a noncoercive establishment, Cooley 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

Madison too desired to impute the principle of equality of conscience into our constitutional framework. His first draft of the First Amendment (voted down) said exactly this. And his Memorial and Remonstrates argues that equality of conscience is an unalienable natural right. Further, in his Detached Memoranda, Madison argued that Congressional Chaplains were unconstitutional, at least, in part because they violated such religious equality, where he stated, "The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles."

However, Newdow, I think has a larger problem. Clayton Cramer argues that the notion of constitutional "neutrality between religion and irreligion" is improper. I would argue, as would Newdow, that the notion that the irreligious citizen's conscience is entitled to "Equal Protection" under our Constitution is without question grounded in natural rights originalism, that Jefferson and Madison certainly recognized such rights. However, we run into a problem when we see at bottom, Jefferson, Madison and other Founders needed some sort of ultimate trump for natural rights in order for liberal democracy to refute divine right of Kings and divine right of ecclesiastical authorities to rule. And what is the ultimate trump? Why God himself (upon which the old order we were revolting against also explicitly relied). Hence the notion of a generic Nature's God as the guarantor of all of our rights. I don't think that an atheist's "equal rights of conscience" should be able to trump the source to which Madison, Jefferson et al., tied rights.

Let me attempt to propose a compromise for atheists such as Newdow on the "under God" issue, perhaps a way in which they could view invoking God as consistent with their equal rights of conscience. As long as we are referring to a generic God, we should read God as a metaphor for non-negotiability of rights. What is good about liberal democracy is that individuals have liberty and equality rights which are antecedent to majority rule, that they preexist civil government and that civil governments gain their legitimacy by securing such rights. I'm not sure if I can "prove" this as a mathematical truth, but as long as we liberal democrats believe and defend such a notion, that we would tie such rights to God, whether God exists or not, demonstrates our commitment to such abstract principles.

If the theocrats want to believe that its their Biblical God who grants such rights, let them. Our Founders like Washington, Adams, Jefferson, Madison, and Franklin never identified the rights granting God as the God of the Bible. And the Bible never states that God grants unalienable rights. One could view the rights granting God as a lowest common denominator God of monotheism, as did Justice Scalia in his dissent in McCreary. This doesn't fly with some evangelicals, (see Joe Carter's post where he notes that Jews, Muslims, unitarians, and Trinitarians do not worship the same God). And even though such Founders did draw an LCD "Nature's God," such a God was a very low LCD. We can't even say that invoking such a God supports displaying the Ten Commandments (as Scalia erroneously argued) because those Founders didn't believe that Nature's God revealed the Ten Commandments to Moses.

I guess what I'm arguing for is a "ceremonial theism" exception to the equal religious rights of atheists and polytheists rule.

Thursday, November 17, 2005

Drury on the Straussians and the Proper Metaphor for the Nihlisitic "Truth":

Shadia Drury is a Strauss expert and a leftist "debunker" of the Straussians. While she knows quite a bit about them, her assertions, unfortunately are tainted with bias and thus leave me with the impression of "spin."

This interview of hers is interesting, informative, but also deserves some perspective. First, I can't at all agree with the following assertion of hers:

The ancient philosophers whom Strauss most cherished believed that the unwashed masses were not fit for either truth or liberty, and that giving them these sublime treasures would be like throwing pearls before swine. In contrast to modern political thinkers, the ancients denied that there is any natural right to liberty.

The Truth, according to Strauss and his East Coast followers is nihilism, and everything about them is that such a Truth is the furthest thing from a "pearl." Drury herself contradicts her assertion when she states:

There are indeed three types of men [according to the Straussians]: the wise, the gentlemen, and the vulgar. The wise are the lovers of the harsh, unadulterated truth. They are capable of looking into the abyss without fear and trembling. They recognise neither God nor moral imperatives.

The Truth is not a Pearl, but rather is, or at least often is, harsh and something that most ordinary persons cannot handle unadulterated, because it can be so unpleasant. The wise philosopher receives intense pleasure from discovering the Truth even if what he discovers is horrifying.

The underlying point of Allan Bloom's The Closing of the American Mind was that nihilism had trickled down to the masses, but it wasn't real nihilism, it was nihilism without the abyss or nihilism American style. It had all the fun of relativity of the Truth and freedom from objective traditional morality, but none of the horrific implications.

Bloom simply wanted people to understand the implications of nihilism, i.e., the abyss. And if they were "capable of looking into the abyss without fear and trembling" as Drury puts it, then they could be true philosophers. But Bloom's point was that the overwhelming majority of people -- even the overwhemling majority of his brilliant Ivy League students -- couldn't do this. So Bloom's exercise was to force his students and others to confront certain reductios of nihilism. And he discovered almost none of them were honest enough or willing to accept the logical conclusions of nihilism. For instance, Bloom writes:

If I pose the routine questions designed to confute them and make them think, such as, "If you had been a British administrator in India, would you have let the natives under your governance burn the widow at the funeral of a man who had died?," they either remain silent or reply that the British should never have been there in the first place. p. 26.

In other words true cultural relativism means that the natives get to burn the widow, and the British objecting is simply imposing our Western values which are no more objectively true or false, good or evil, on the non-Western nation.

Or here Bloom uses the writer Celine to serve as a nihilism reductio:

The one writer who does not appeal at all to Americans -- who offers nothing for our Marxist, Freudian, feminist, deconstructionist, or structuralist circles to mangle, who provides no poses, sentimentalities or bromides that appeal to our young -- is Louis-Ferdinand Celine, who best expresses how life looks to a man facing up to what we believe or don't believe. He is a far more talented artist and penetrating observer than the much more popular Mann or Camus. Robinson, the hero he admires in Journey to the End of the Night, is an utterly selfish liar, cheat, murderer for pay. Why does Ferdinand admire him? Partly for his honesty, but mostly because he allows himself to be shot and killed by his girlfriend rather than tell her he loves her. He believes in something, which Ferdinand is unable to do. American students are repelled, horrified by this novel, and turn away from it in disgust. If it could be force-fed to them, it might motivate them to reconsider, to regard it as urgent to think through their premises, to make their implicit nihilism explicit and examine it seriously. p. 239.

More importantly the Straussians genuinely believed that keeping nihilism confined to the wise few was better for society, in a sort of utilitarian sense (though they weren't utilitarians). It was, I sincerely believe, out of genuine concern for society. This is important: While they believe that Nietzsche and Heidegger were correct as to the ultimate nihilistic nature of reality, such a "Truth" could not be used to found political orders. And indeed, such a Truth gaining wider public acceptance made Weimar Germany more receptive to Nazism. The following passage of Closing (written unfortunately in very abstruse prose -- no doubt, purposefully abstruse) is perhaps the most profound passage in the book, and gives the proper metaphor for the Truth. The Truth is not like a pearl, but rather like a dangerous fire, and philosophers must be the keepers of this secret flame:

I shall not comment on the Nazi period of the now de-Nazified Heidegger, other than to remark that the ever more open recognition that he was the most interesting thinker of our century, formerly chastely displaced in admiration for his various proxies, gives evidence that we are playing with fire. p. 154

On the same page, Bloom writes: "Once one plunges into the abyss, there is no assurance whatsoever that equality, democracy, or socialism will be found on the other side. At the very best, self-determination is indeterminate."

Wednesday, November 16, 2005

Rankin Responds:

The Reverend John C. Rankin responded to my post where I accuse him of engaging in "the fundamentalist fallacy." It's an interesting response. Read it here. I've reproduced my rejoinder. He basically denies making the fallacy which I've accused him of and seems to endorse libertarianism as a public policy. Good for him. As I said in the original post, I'm more than willing to make a political compromise with those who don't share my worldview so long as libertarianism is that compromise.

Mr. Rankin: I have no problem with much of what you say; we both seem to define ourselves as natural rights libertarians.

I couldn’t agree more with the following position that you take:

“I want to see everyone’s religious, political and economic liberty maximized. Everyone has the unalienable rights of life, liberty and property, and hence the cognate power for the pursuit of happiness. And in this context, that applies equally as always, regardless of one’s religious or sexual identity.”

What might be useful for you is to appreciate the distinction between natural rights (or “unalienable” natural rights to be more precise), and civil rights.

Unalienable natural rights are non-negotiable and exist prior to civil society and civil society’s entire reason for being is to guarantee those rights. Civil rights are entirely government granted, positive rights. A good government is one that, in the form of its positive civil rights and structure, effectively secures those natural rights, and, in its official government actions, does not otherwise violate such natural rights.

In other words, government, as a baseline, must guarantee the unalienable equal natural rights to life, liberty, property, conscience, and a few other basic things. After that, government may do what it wishes, pursuant to majority rule, so long as those “additional” things in no way violate individuals’ unalienable natural rights.

And government grants, in form of positive rights, plenty of things which aren’t natural rights. For instance, I’d be hard pressed to accept that we have a natural right to healthcare, a social security check, or a public school education. But government *may* (and the key word is *may*) grant such things, so long as in doing so it violates no one else's unalienable rights. (Perhaps these things do violate natural rights. But that’s a topic for another discussion.)

Seen in this way, same-sex marriage — like opposite sex marriage — could simply be a government granted positive right. And you would have the burden of demonstrating how government granting such violates anyone’s unalienable natural rights.

[Update: Let me anticipate a potential "hair-splitting" question. If gay marriage is a non-natural positive right, then wouldn't it therefore be illegitimate for a court to grant this in contravention to majority rule? Not necessarily, the 14th Amendment holds state governments may not deny citizens "privileges or immunities." While the term "immunities" refers to natural rights, the term "privileges" refers to some entirely government created non-natural rights, which are also antecedent to majority rule.]

If marriage itself is an unalienable “natural right,” as opposed to a positive civil right or privilege, then arguably government would have to respect same-sex marriage so that it respects every gay citizen's unalienable right to marry the person whom he or she loves.

Again, the rights of conscience are a good analogy. The rights of conscience are an unalienable natural right. Government must, then grant full and equal rights to not only Christians, but also those who worship and proselytize for false Gods, something that the God of the Bible not only forbids, but also prescribes the death penalty for in the Old Testament.

Sunday, November 13, 2005

Serious Question on Philosophers and Atheism:

In the comments to my post on philosophers and atheism, Matthew Anderson asks:

"Now, since Nietzsche, it does seem as if all prominent, post-Nietzschean philosophers are atheists."


Are you not including the American philosophical tradition in this statement? I'm curious what you mean by "prominent, post-Nietzchean philosophers": do by "post-Nietzchean" you mean 'respondants to Nietzche?'

My answer:

See the chapter in The Closing of the American Mind entitled "From Socrates' Apology to Heiddeger's Rektoratsrede."

Heiddeger was *the* post-Nietzschean philosopher. And after N&H, according to Bloom, nihilism – the notion that there is no God, natural law and natural rights are fictions, and truth is relative – simply became accepted dogma in the philosophic academy.

Strauss called this a *crisis* in philosophy for the West, because it was a *Truth* that had been too exposed to the masses. And even though the masses weren't atheists, such atheistic philosophers got the masses to accept their relativistic and nihilistic tenets.

Now, yes there are post-Nietzsche, Thomistic philosophers who continue on to the present day. Likewise, with philosophers in the "American philosophical tradition," who like the Thomists posit Aristotelian notions of self-evident Truths that Man can discover from Reason.

Strauss and Bloom supported their defense of "Reason" and "self-evident Truths" and their desire to publicly reconcile Reason and Revelation and demonstrate that philosophy points to the existence of a Creator.

Privately, they believed Nietzsche had demolished their arguments. Just email someone like Brian Leiter and ask him his opinion about philosophy being able to "prove" the existence of God and whether we can also "prove" that the Declaration of Independence is as True as the principles of Euclidean geometry.

Strauss and Bloom also thought most of the atheist/nihilist postmodern philosophers (again, Leiter is a good example) weren't *serious* either, but for different reasons—thinkers like Sarte and Foucault. That's because they didn't fully grapple with the implications of the abyss.

Nihilism without the abyss—Nihilism American Style—is just a joke according to Bloom.

Saturday, November 12, 2005


To Karen over at Dark Bilious Vapors for her kind comments.
Eric Johnson on NPR:

Check out guitarist Eric Johnson's interview and spectacular playing on Scott Simon's Weekend Edition.

Friday, November 11, 2005

Do Atheists Really Exist?

Saul Bellow, who was Jewish but possessed no orthodox set of religious beliefs, didn't think so.

Or at least, this is his position in Ravelstein, the novel about Allan Bloom, but with the names changed.

He was responding to Ravelstein's (Bloom's) militant private atheism (although he was a public supporter of religion); Bloom made it clear that "no true philosopher could believe in God." Now, there are a few things to say about this. First, this is part of the "esoteric" teachings about which Straussians believe philosophers should not be up front. Although Bloom doesn't come right out and embrace this in The Closing of the American Mind, he pretty much admits, more toward the end of the book (if you read that far) that this is what he believes. Strauss, on the other hand, never as far as I know publicly admitted to being an atheist and even, as Robert Light informed me, made some public denials about it.

Strauss's textual teaching was that Reason and Revelation could not refute one another (that they sort of came to an impasse) and that material science could not disprove the existence of God. However, privately, I've heard from reputable second and third hand sources, he was as much of a militant atheist as Bloom. The Straussians, after Strauss himself, and revealed in Bellow's book, had no problem with "spilling the beans" to those in their inner circle. And Bloom was one of Strauss's closest philosophical confidants. So when we hear Allan Bloom say, "no true philosopher can believe in God," we are likewise hearing Leo Strauss say this. (Keep in mind, Bellow in Ravelstein names Leo Strauss, "Davarr" which is Hebrew for "Word.") I've also heard, again from secondary sources that Strauss could be heard saying things like "philosophers are paid not to believe in God."

Now, since Nietzsche, it does seem as if all prominent, post-Nietzschean philosophers are atheists. There is just something about the philosophic mindset where it goes with the territory. It's almost a dogma to them. What is interesting about the Straussians is that they believe that many pre-Nietzschean philosophers were secret atheists and that this was an esoteric Truth that one had to "read between the lines" to understand. So for instance, thinkers like Hobbes, Locke, Newton, Voltaire, all of whom professed to believe in some sort of God, were really atheists. I'm not sure if I can buy into this. What's true about all of these thinkers is that they either rejected the Christian God or if they claimed to believe in Him, they rejected traditional orthodox dogmas about God's attributes, like the Trinity. This is what Bloom meant when he wrote in Closing, "The philosophers appeared to deny the very existence of God, or at least of the Christian God."

Also, keep in mind, speaking one's true mind in those days could get one killed. Lest we be reminded that Calvin, as governor of Geneva had Servetus put to death for publicly denying the Trinity.

The Straussians argue that Nietzsche thought these Enlightenment philosophers, by putting reason and empiricism at the center of the political stage, had "killed God"...and that this was a catastrophe for man. But men, according to Nietzsche, need God. So new gods must be created by men (as all gods are).

In any event, Bellow seems to reject the notion that anyone really disbelieves in God and the afterlife. He writes,

[Bloom/Ravelstein] had, however, asked me what I imagined death would be like -- and when I said that the pictures would stop he reflected seriously on my answer, came to a full stop, and considered what I might mean by this. No one can give up on the pictures -- the pictures might, yes they might continue. I wonder if anyone believes that the grave is all there is. No one can give up on the pictures. The pictures must and will continue. If Ravelstein the atheist-materialist had implicitly told me that he would see me sooner or later, he meant that he did not accept the grave to be the end. Nobody can and nobody does accept this. We just talk tough.

Well, I guess they both now know.

Wednesday, November 09, 2005

What is it about this Bob Dylan Song?...

...My Back Pages, which makes guitar virtuosos want to cover it. On the new Eric Johnson album, Bloom (I don't have it yet, but I soon will), Johnson covers it (see video).

And previously, Carl Verheyen, another favorite of mine, covered it on his album Garage Sale. Verheyen's version is truer to Dylan's original. Johnson's version, while cool, turns it into a real uptempo piece, which the original wasn't.

Sunday, November 06, 2005

Fundamentalists and Natural Rights, Redux:

Check out this article written by Dr. John Corvino on the notion that the God of the Bible grants unalienable rights, and its corresponding implications. In it, he writes about his experience debating Rev. John Rankin of the Theological Education Institute of Hartford, Connecticut, who engages in, what should be termed "the fundamentalist fallacy" concerning natural rights.

The fallacy goes something like this: 1. The Declaration of Independence holds that God grants unalienable rights. 2. God has written in the Bible what behavior is proper. 3. If God forbids a particular behavior in the Bible, then we cannot have a "right" to it.

Corvino effectively demolishes the fallacy. And I should note, Dr. Corvino and I are on a private listserv and I was one of a few people who advised Corvino on his forthcoming debate with Rankin.

It's people like Rankin who are why I originally wrote my post on this subject responding to one of Richard Reeb's posts. In fact, I've been in private email correspondence with Reeb. So I'll reproduce my latest email to him, which is on point:

Mr. Reeb:

I simply desire that fundamentalist Christians who profess to believe in natural rights begin with a starting point that whether the God of the Bible commands or forbids X, has nothing to do with whether that behavior is a natural right, unalienable or otherwise. For instance, there are certain behaviors which the God of the Bible forbids -- the murder of innocents, to which we indeed have no natural right. And other behaviors which the same God forbids -- the worship of false Gods, to which we indeed do have an unalienable right.

So just because the God of the Bible forbids, for instance, homosexual behavior, has nothing to do with whether we have a natural right to engage in such behavior.

If Evangelicals conceded to my above syllogism, I'd have no problem with their invocation of natural rights.

[Reeb:] "I take it that the utilitarian ethic is your lodestar, and therefore anything that consenting adults agree to is permissible. That would include not only sodomy but sadism and masochism, as long as the parties agree."

Here's is the problem for you, Mr. Reeb: It seems that we do indeed have a "right" to engage in sadomasochism, as long as the parties agree and the behavior is done in private. As far as I am aware, there are no, nor have there ever been any laws on the books in this nation against sadomasochism -- as long as it takes place under those terms (consenting adults, done in private). If a husband and wife, as part of their sex play, want to bring out the whips and chains, that's their business, and the law has never said otherwise.

See these two posts where Eugene Volokh (whom I understand has some affiliation with Claremont) and I rip to shreds Lester Kinsolving of WorldNutDaily, for claiming that if we recognize gay marriage, then we will have to recognize "S & M" marriages, without realizing that "S & M" marriages are already perfectly legal as long as it's a one man/one woman marriage!

Likewise with the natural law. Griswold held that married couples have a constitutional right to use contraception. Now, some very serious natural lawyers believe that this violates the natural law. I think even Harry Jaffa and Claremont have supported the right to maritial privacy under these terms (although, not the reasoning in Griswold). So there you have it: we have a natural constitutional right to privacy, to do what arguably violates the natural law.

This isn't to say that the morality that derives from the natural law or the Bible isn't important to society. But our natural rights regime dictates that most of these decisions be left in the private sphere of society, that individuals, in their "pursuit" of happiness, be guaranteed the right to figure these things out for themselves.

Best wishes,

Jonathan Rowe

Always nice to get a link from Andrew Sullivan. And wow, he said, "and if you aren't familiar with his blog, you should be". I think I'll integrate that into my template.

Saturday, November 05, 2005

Carpenter, Marriage and Definitions:

It looks like Dale Carpenter is wrapping up a fine job he did defending gay marriage over at the Volokh Conspiracy. Thank you Dale for your Yeoman's work.

Let me respond to one thing I see coming up often by gay marriages opponents. They assert marriage by definition is one man/one woman. Calling two men married is like calling a desk a chair. If we so "undefine" marriage as two men or two women, then all the other groups can similarly undefine marriage.

Two quick responses. One, if it's just a "name" we are fighting about, that seems to lend itself to a fair compromise. If two men or two women aren't "marriage," then fine, let's not call it marriage; let's call it something else. Let's call it "garriage," or "domestic partnerships," or "civil unions"; just make sure that such gay unions receive every single right -- federal, state and local -- that opposite sex marriages do.

Second, many of the things that exist "down the slope" by definition, clearly are "marriages" (or at least no one before previously argued they weren't "marriages") but we, for good reason, have decided not to permit them.

For instance, one commenter at Volokh wrote:

Once we remove the procreate roots of marriage from the definition of marriage, marriage becomes anything any individual within society wants it to be....A mother can say that since she loves her son, she should be allowed to marry her son.

But a mother and son can already procreate! And indeed, a mother/son marriage in no way violates the one man/one woman exclusive model for which these people argue! A mother and son union, if legal, would be, by definition "marriage," but we do not, for good reason, allow them. (Also keep in mind, if "marriage" can be traced to the Garden of Eden, and if, as some orthodox Christians believe, God created only two people who then propagated the entire human race, then logic tells us that the entire human race was likewise propagated by incestuous brother/sister marriages).

Similarly, if an adult man were to "marry" a nine year old girl, that too would be, by definition, a "marriage." Such marriages did exist in traditional Western history, and still do in many other cultures, and no one argued that they weren't by definition marriage. We simply have decided, again for good reason, not to recognize such marriages.

Finally, plural marriages are indeed by definition marriage. Such marriages predate Western culture and have roots that extend as far and deep, if not deeper, than one man/one woman marriages. And for all that history, no one as far as I know argued that such marriages weren't, by definition, "marriage." Again, we have decided for good reason, not to recognize such marriages.

The only two things left which arguably, by their very nature aren't "marriages" are to animals and inanimate objects. And we simply should not take seriously the argument that gay marriage will take us off the "human" slope.

As John Corvino argues,

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

And Corvino notes: "As my acquaintance Josh Goldfoot put it, 'Marry your toaster if you like, but please don't try to file a joint tax return with it.'"

Let's do a little thought experiment: Observe a relationship between 1) a man and a woman, 2) a man and a man, and 3) a man and a toaster, and then, through "natural classification," group together or make an analogy and ask, "Which two are closer to the other?" No rational individual who knows of any gay couple would group the man/man relationship with the man/toaster relationship as opposed to the man/woman relationship. It's really that simple.

Gay marriage may or may not lead us down the slope toward state acceptance of incestuous or plural marriages, but it's not because gay marriage "undefines" marriage and in doing so forces the state to recognize other "undefined" marriages.

Wednesday, November 02, 2005

Scalia and Democractic Theory:

I can't let a point that Justice Scalia makes in an otherwise very good article in First Things to go unchallenged. Scalia notes that the substantive common law -- those bodies including "the law of crimes, of torts, of agency, of contracts, of property, of family and inheritance" were entirely judge made. Or to put it in today's parlance, of judges "legislating from the bench."

This is one reason why I can't take the claim that "we don't want judges legislating from the bench, substituting their will for 'the people's' as expressed through the legislators" very seriously. See this article by Erwin Chemerinsky and Catherine Fisk where they note:

But every lawyer knows that judges make law—it's their job. In fact, law students learn in the first semester that almost all tort law (governing accidental injuries), contract law and property law are made by judges. Legislatures did not create these rules; judges did, and they continue to do so when they revise the rules over time.

So what's Scalia's response to this?:

But democracy has overtaken all that. Modern governments, or modern governments in the West at least, are thought to derive their authority from the consent of the governed, and the laws they prescribe are enacted by the people's representatives. Such a system is quite incompatible with the making (or the "finding") of law by judges—and most especially by unelected judges. Even in state courts, it is a rare case that does not involve interpretation of an enacted text. And federal courts have, since the decision of Erie R.R. v. Tomkins in 1939, completely abjured common-law powers except in a few limited fields such as admiralty; they do not pretend to have the power either to "find" or to "make" a law unevidenced by enacted text or (in cases coming within their diversity jurisdiction) by the text of state judicial decisions.

Scalia further complains about judges today inappropriately exercising powers as common law judges once did:

I have said that the contradictions do not exist in a system of enacted law properly applied, because there are means of converting democratically enacted law (or democratically ratified constitutional provisions) into a sort of common law prescribable by judges. We have done this with the federal Constitution. One such means is simply reading text to say what it does not say -- so that the assurance that no person shall be deprived of life, liberty, or property without due process of law becomes an assurance that fundamental liberties shall not be eliminated; of course, it is the judges who get to decide, in common-law fashion, what liberties are fundamental.

Another means consists of asserting that a text does not retain the meaning it had when it was adopted but, rather, changes meaning to conform with current practices, or current attitudes, or (as the Supreme Court has explicitly said with regard to the Eighth Amendment's proscription of cruel and unusual punishment) whatever a majority of the justices thinks best.

First, Scalia makes no convincing case that there is anything proper about elected legislators making rules that bind us, as opposed to judges. If you ask me, those common law judges came up with a much better set of rules than those that come from modern legislators. And while government administrations in power do indeed derive their legitimacy from "the consent of the governed," "the consent of the governed," in and of itself, cannot confer legal or moral legitimacy on substantive rules. Were that true, 51% of the less well off would be able to confiscate the wealth of the richer 49%. Or even worse, a majority could legislatively enact a genocidal holocaust into law, and hey, that's just "the will of the people as expressed though the legislative process."

It's further ironic that it's more often the right-wing who points out that technically we are not a "Democracy" but rather a Constitutional Republic. And as such, there are republican checks on the democratic process. Pure democracy is just mob rule and we don't want that. One of those checks is an independent judiciary that has the power to strike down laws. Another check is the fact that "the people" have little rule-making power themselves, as they would in direct democracy, but rather have to elect legislators who make rules.

Further, legislators themselves in particular, and government in general, expect courts to "legislate from the bench." It makes legislators' jobs much easier because they can write codes that tend to be more general and let courts "fill in the gaps," consistent with the general principles expressed in the statutes when specific cases and controversies arise.

It's true what Scalia says, that courts don't make the law from nothing as they did in the common law era, that they usually have an enacted text from which to start. But often that enacted text is very little (almost nothing).

Consider the 4-part fair use text, something written into the federal copyright statute, which was itself judge created in the common law:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

Now you tell me based on what you have read whether when I copy an article from Time Magazine and distribute it to my class, it's a fair use? Or how about when you tape record your favorite TV show? Or what about the VCR as a piece of technology itself? Or what about Napster/Grokster like technologies?

You can't derive any of those specific answers from the text, but someone has to tell us whether this is a fair use or not. Courts do. And when they do, they make law and create substantive legal norms from the bench.

We could do the same analysis with many other pieces of legislation, for instance, the Sherman Act, ("Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal") and the FTC Act ("Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful") are likewise notoriously vague. If you are a business and want to know what specific conduct is illegal under these pieces of legislation you'll have to look to more than just the text of the statutes but also the substantive norms created by courts in interpreting these statutes.

Now, legislators can put a stop such judicial rule making by creating such mind-numbingly detailed statutes that try to anticipate every specific case and controversy, and write them into the codes, that judges' hands are literally tied -- the answer has already been anticipated and written for them. And some European "civil code" (as opposed to "common law") nations do that. If we really thought there was something terribly wrong with judges rule making from the bench, we'd alter our system to look more like such European countries whose systems evolved without the common law.

Indeed, it's a characteristic feature of nations with a common law tradition, like the US, for judges to "fill the gaps" with more specific substantive rules when interpreting statutes or constitutions with many provisions written at a very broad level of generality.

I agree with Scalia that it's a bad idea for judges to misuse the text of the Constitution and create norms from an improper place, for instance the Due Process Clause of the Fourteenth Amendment. But much of which Scalia complains with "Substantive Due Process" could be done properly under other clauses, for instance, the "Privileges or Immunities Clause."

Finally, as far as clauses "chang[ing] meaning to conform with current practices, or current attitudes," I'll defer to the eminent Richard Posner:

Many provisions of the Constitution, however, are drafted in general terms. This creates flexibility in the face of unforeseen changes, but it also creates the possibility of alternative interpretations, and this possibility is an embarrassment for a theory of judicial legitimacy that denies that judges have any right to exercise discretion.


Even the decision to read the Constitution narrowly, and thereby to "restrain" judicial interpretation, is not a decision that can be read directly from the text. The Constitution does not say, "Read me broadly" or "Read me narrowly."*

And the Constitution certainly doesn't codify Justice Scalia's theory of jurisprudence.

*Richard Posner, Overcoming Law, pp. 233-4. In Chapter 8, hilariously entitled, "What Am I? A Potted Plant?"