Saturday, February 25, 2006

Some Thoughts on the Natural Law:

This piece on Princeton's Robbie George inspired some thoughts on the natural law. The natural law is what man can know from his reason unassisted by revelation or other sorts of unargued dogma. The natural law is Capital T Truth, something non-negotiable, and True regardless of how many people do or don't believe in it. For instance, even if 99% of the population denied 2+2 = 4, they'd still be wrong.

Natural law is often associated with a religious point of view -- doctrinaire Catholicism, because the Church's teachings have embraced the natural law through Aquinas.

But Aquinas didn't "invent" this concept -- the Pagan philosopher Aristotle did. And Reason itself is not beholden to any Church's doctrine; rather it's supposed to be the other way around. As Allan Bloom wrote in The Closing of the American Mind, "Aristotle...was used as an authority almost on a level with the Church Fathers and was assimilated to them. This was, of course, an abuse of Aristotle, who thought that authority is the contrary of philosophy....The essence of philosophy is the abandonment of all authority in favor of individual human reason." pp. 252-3.

And indeed, Reason has as often been used to question rather than support traditional religious doctrines. The Enlightenment was one big natural law project in that it posited Man's Reason as the ultimate discerner of Truth. That doesn't mean Church doctrine or Revelation were, according to natural law, untrue. But rather, they had to be Reasonable in order to be True. So it was under the auspices of the natural law, not only was America Founded, but so too was the French Revolution conducted. And there we saw that Reason turned out to be not too friendly to the Catholic Church.

Now, in researching the philosophical origins of the Founding, I've dismissed the "Christian Nation" thesis entirely. The Declaration of Independence and the Constitution simply did not come from the Bible. The Founders were very clear that whatever Truth may be found in the Bible, it was not the guidebook from which our government was constructed. However, I do take natural law claims to the Founding seriously, because the United States's government was founded under the rubrics of "Reason" and "Nature."

As John Adams put it in "A Defence of the Constitutions of Government of the United States of America" [1787-1788]

"The United States of America have exhibited, perhaps, the first example of governments erected on the simple principles of nature; and if men are now sufficiently enlightened to disabuse themselves of artifice, imposture, hypocrisy, and superstition, they will consider this event as an era in their history. Although the detail of the formation of the American governments is at present little known or regarded either in Europe or in America, it may hereafter become an object of curiosity. It will never be pretended that any persons employed in that service had interviews with the gods, or were in any degree under the influence of Heaven, more than those at work upon ships or houses, or laboring in merchandise or agriculture; it will forever be acknowledged that these governments were contrived merely by the use of reason and the senses.

". . . Thirteen governments [of the original states] thus founded on the natural authority of the people alone, without a pretence of miracle or mystery, and which are destined to spread over the northern part of that whole quarter of the globe, are a great point gained in favor of the rights of mankind."

Political science, according to the Founders, was a form of natural science. The Declaration of Independence was a self-evident Truth as much as 2+2=4. The Founders no doubt due to the influence of Isaac Newton viewed "Nation Building" as part of the same system of "mechanical and mathematical foundations [that] served [the] grounding post for their scientific reasoning," in Jim Walker's words. (Gary North makes a similar point in this article.)

But how relevant is natural law to us today? After Carl Becker (who once famously said "to ask whether the natural rights philosophy of the Declaration of Independence is true or false, is essentially a meaningless question") it is assumed by many, perhaps most that the Founders were "wrong" in believing that the natural law of the Declaration was "True" like the principles of natural science and in refusing to distinguish between the two. As Charles Murray recently put it, the doctrine of natural rights "is not a falsifiable hypothesis."

Murray is right, I think, that the Declaration can't be proven like 2+2=4; but this doesn't mean the Declaration is not part of some larger metaphysical Truth. Whether the Declaration is ultimately True in an empirical and/or metaphysical sense is a question I leave open.

Another critique of natural law is, even if it is True, because people disagree over its content, the Declaration of Independence has no proper place whatsoever informing constitutional law. This is Justice Scalia's critique. He stated, (as a Catholic) he believes in the natural law. He just doesn't believe that nine lawyers on the Supreme Court are the final arbiters of what the natural law says.

While I disagree with Scalia on the natural law and its relationship to constitutional law (and I think so too would the Framers), he certainly is correct that people disagree over the contents of the natural law. For instance, the above article quotes Robbie George as believing:

"[T]he genitals of men and women are reproductive organs all of the time--even during periods of sterility," he writes. To curb sexual practices he views as immoral, including oral sex and masturbation (which he calls "bad" sex), George supports state laws banning sodomy, adultery and fornication.

This certainly looks nothing like the natural law in which I might believe.

Another interesting question: How relevant is a Thomistic view of the natural law to the Declaration of Independence? Robbie George, Hadley Arkes, and the Claremont Institute are notable for conflating the two theories. But in fairness, they would assert that the natural law is what the natural law is: The Declaration of Independence is part of it; so too are Aristotle and Thomas Aquinas.

Moreover, they seem to argue that 1) government has the right to enforce the natural law (even in its Thomistic sense) and 2) public policies which contradict (their understanding) of the natural law weaken America's natural law Foundation by contradicting the Declaration of Independence.

So for instance, Harry Jaffa might argue: 1) the Declaration of Independence derives from the natural law; 2) slavery violates the natural law and the Declaration; 3) sodomy violates the natural law; 4) moral approval of sodomy destroys our ability to make moral judgments under the natural law such that, "If then sodomy is not unnatural...then nothing is unnatural, and nothing (including the persecution of sodomites) is wrong." Jaffa would probably go so far as to assert: "Moral approval of homosexuality destroys the Declaration of Independence."

Claremont disproportionately focuses on the "sodomy" part of the natural law, but not so much on masturbation, oral sex, and contraception, and for good reason. Since much of the public holds an unfavorable view of homosexuality, Claremont's argument might resonate with them. However, should the Thomists argue something along the lines of "if we accept a teenager masturbating as natural, then the Declaration of Independence unravels and we can't even say, as a matter of moral certainly, slavery and genocide are wrong," most of the public would laugh this off as a self-evident absurdity.

Some other complicating factors for those who would conflate Thomism with the Declaration:

1) The Founders virtually never invoked Thomas Aquinas (at least in a positive sense). This is probably because Aquinas is indissolubly connected with the Catholic Church. And because of said Church's poor record on religious toleration, our Founders, if you've read what they've said about the Roman Church, were practically anti-Catholic bigots.

Still the Founders did invoke Locke and other philosophers who inherited a Anglican natural law tradition from Richard Hooker, which ultimately traces back to Aquinas and Aristotle.

2) Even the Thomists disagree on some issues. For instance, Jaffa has tried to give himself an "out" and argued that contraception between married couples is not unnatural (if you have time to read the entire link from which this passage was taken, you will see how far off his rocker Jaffa is on these sexual issues).

Chan writes that "contraception would be just as immoral as homosexuality since it frustrates the natural purpose of sex." I believe this view to be mistaken, although it is one easy to make, because it is how the Catholic Church has interpreted the natural law. According to Aristotle -- the fons et origo of all natural law teaching -- all the moral virtues must be exercised according to the dictates of prudence....Mr. Chan attributes to me the absurd opinion that "the most important thing about man's nature is his ability to perpetuate the species." Other species may fulfill their natural destiny by generation alone, but mankind seeks his end in and by the soul no less than by the body. One's duty to one's progeny only begins with the circumstances of birth. It is the nurture and, above all, the education of the young, that parents must undertake when they bring children into the world. If the resources available to the parents are such that they have to choose between failing in their duty to many, or fulfilling their duty to a few, choosing the latter course may indeed be prudent.

So here we begin to see how in using the same natural law premises, we come to different outcomes. Jaffa and the Church differ on whether contraception can be "natural." However....

3) Just as natural law arguments can be made on behalf of contraception, so too can they be made on behalf of homosexuality. Natural law is after all premised on an observation of nature and homosexuality clearly exists within both animal and human nature. When one observes a minority in nature that deviates from a general trend, one can either anathematize it as "unnatural" or simply view it as a natural variation, part of biological diversity. (See Andrew Sullivan's Virtually Normal, pp. 46-8).

Dr. David Mazel, though he doesn't believe in the natural law, engaged in a thought experiment on my blog, where he made a pretty convincing natural law case on behalf of homosexuality. An excerpt:

But again, wait. If there is not one common Human, but rather two forms of humans, why not more? Who's to say that we should not in fact be speaking, not of Man and Woman, but of Heterosexual Man and Heterosexual Woman, in order to distinguish them from those other forms, Gay Man and Lesbian?

Perhaps the essence of Gay Man is different from that of Heterosexual Man, and the essence of Lesbian different from that of Heterosexual Woman, just as the essence of Man differs from that of Woman. If so--and Feser has given us absolutely no reason why it might not be so--then it stands to reason that Gay Man and Lesbian--as well as those naughty organs, Gay Penis and Lesbian Clitoris--have been designed by their Creator toward rather different ends than Heterosexual Man and Heterosexual Woman. Who can say? Perhaps Feser can read the Mind of God, or perhaps the Pope can, but I cannot, and anyway I'm trying to proceed on the basis of reason rather than revelation.

If Gay Man and Lesbian are Forms of their own, then natural law tells us that the moral thing for gays and lesbians to do is to strive to realize their essence qua Gays and Lesbians. The immoral thing for them to do would be to frustrate that realization. BTW, that applies to straights as well--including, I will assume, Feser. It is immoral for Feser or anyone else to deliberately frustrate the ability of gays and lesbians to realize their essence as Gays and Lesbians. (Read the entire thing here.)

4) Not only did the Founders rarely if ever invoke Aquinas, they also rarely discussed issues of "natural sexuality." Rather, they spent most of their time explicating Hobbes's/Locke's "state of nature" teachings on government; though they did discuss how natural rights related to issues like slavery and religion. On slavery, the case was clear: Slavery violated the natural law, and in a sense, the Declaration spelled the eventual end of that inhumane institution, even as the Constitution preserved slavery's legality.

On religion, according to the most philosophically minded Founders, the Trinity violated the natural law. The Trinity was simply an irrational and unreasonable doctrine. As Abigail Adams put it in her May 4, 1816 letter to John Quincy Adams, "There is not any reasoning which can convince me, contrary to my senses, that three is one and one three." Remember, that the majority of people at the time may have thought otherwise is irrelevant to natural law issues. 2+2 = 4 irrespective of whether the population at large accepts it or not. And just as we could say that the Declaration of Independence spelled the eventual end for the institution of slavery, so too did Jefferson believe that the Declaration spelled the end for the institution of Trinitarian Christianity when he declared, in 1822, "I trust that there is not a young man now living in the US who will not die an Unitarian."

Now, of course, one can make a natural law argument in favor of the Trinity. The point of stressing these differences is to note that because we differ on the finer details of the natural law, it is not possible for government to justly enforce the natural law simpliciter. This is what Jefferson believed when he wrote, in Notes on the State of Virginia that "The legitimate powers of government extend to such acts only as are injurious to others."

Indeed, I would assert that our natural rights republic is structured such that we have the right to do what arguably violates the natural law. Whether the Trinity is unnatural or not is irrelevant given that the rights of conscience are unalienable; thus people have the absolute right to believe and proselytize for any religion, no matter how orthodox, unorthodox, irrational or bizarre. Jaffa et al., support the right to privacy and the Griswold holding, meaning that individuals have a natural right to do what arguably violates the natural law (use contraception).

Moreover, the natural law generally doesn't need a government to enforce it; rather it enforces itself. Government is only needed to protect individuals' natural rights. Indeed, the Declaration of Independence holds that men have an unalienable right to liberty in its broad and general sense. The Declaration seems to dictate that most of man's decisions, even if they end up violating the natural law, be left in the private sphere of society, that man, in his "pursuit of happiness," is guaranteed the right to figure out for himself what life best leads to human flourishing, even if he ultimately gets it wrong.
Wouldn't it be ironic...?

If the gay porn being used by the military in their interrogation happened to be these same movies.

Thursday, February 23, 2006

It's Official:

Stop the Presses...straight white conservative Christian males are officially a "protected category" under our civil rights laws and possess all of the "special rights" appurtenant thereto.

Seriously though, this fact illustrates the wisdom of Richard Posner in Sex and Reason which I cited earlier:

[G]iven Title VII and cognate laws, is there any reason to exclude homosexuals from a protected category that already includes not only racial, religious, and ethnic groups but also women, the physically and mentally handicapped, all workers aged 40 and older, and in some cases, even young healthy male WASPS? Is there less, or less harmful, or less irrational discrimination against homosexuals than against the members of any of these other groups? The answer is no.

This should also put the rest the canard the religious right puts forth that sexual orientation codes give homosexuals "special rights" that they don't have, when, it's clear that religious conservatives have such "special rights" and are willing to exercise them.

Civil rights statutes can be a complicated matter. And I think the religious right, when originally putting forth the "special rights" canard, seized on such complication and general confusion that ordinary people have regarding the finer details of the law in general, antidiscrimination codes in particular. Indeed, Colorado amended its constitution based on such a misunderstanding. The following are some complicating factors of antidiscrimination codes:

1) Some radical leftists really do think that civil rights statutes ought to be interpreted to protect only minority categories and thus give them special rights. For instance, Mary Francis Berry once said: "Civil rights laws were not passed to protect the rights of white men and do not apply to them."

2) Some affirmative action programs have passed constitutional muster (but many have been struck down) and such programs do seem to give greater rights under these statutes to some groups and not others;

3) When a member of the "less dominant" group (I shouldn't say "minority" because women are a statistical majority) suffers an adverse employment decision, it seems as though they can more easily advance a claim of "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 more likely to be 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. It's really just a matter of perception that does most likely seep into the way these laws are applied in practice. (And personally I'd like to see the same "smoking gun" evidence required to advance any claim of discrimination.)

But nonetheless:

1) Antidiscrimination codes are written in such a way that the text of the statutes do not grant special rights to minority groups but rather protect certain categories which universally apply to all people. So, take for instance, "race, gender, sexual orientation, and religion." These categories apply to everyone; hence white male straight Christians, like the fellow cited above, have their "race, gender, sexual orientation, and religion" protected under such requisite codes. If sexual orientation is not a protected category in a particular jurisdiction, then such a person could be fired merely for being straight. So ironically, the "heterosexual" orientation of the majority gets protection under a so called "gay rights" ordinance.

2) Contrary to Mary Francis Berry's wishes, the courts have held that antidiscrimination codes do apply to such majority groups. That is, if a code says you may not discriminate against "race or gender" (as opposed to the code saying you may not discriminate against "blacks or women") then under the concept of "equal protection of the laws" the "white" race and "male" gender are, at least in theory, equally protected.

This should help us to understand just how despicable Amendment Two in Colorado was, regardless of whether the Romer decision was correctly decided. That Amendment, passed under a campaign influenced by the blatant lies of Paul Cameron, and the misleading "special rights" rhetoric, did not simply repeal "sexual orientation" codes that existed in the state. If the Amendment were written that way, the Supreme Court would have had a harder time striking it down. Rather, the Amendment singled out those with a "Homosexual, Lesbian, or Bisexual Orientation" even as the sexual orientation codes in question were written in a "sexual orientation blind" manner.

Finally, and most ironically, it's not clear that Amendment Two repealed the sexual orientation codes at all in the state of Colorado, but rather withdrew homosexuals, lesbians, and bisexuals from their protection. As we've seen, sexual orientation codes, like the others are written in a neutral manner, and so-called majority groups do in theory receive protection under such laws. Thus, the laws would have remained on the books and heterosexuals would still have been able to sue under them were they discriminated against because of their sexual orientation.

I know this seems like an absurd result, but it is still logically and factually accurate, given the way antidiscrimination codes theoretically work. That the drafters of Amendment Two probably didn't even realize this absurd but logical result of their act shows that they probably really believed their specious claim that sexual orientation codes merely give "special rights" to homosexuals, lesbians and bisexuals that the other citizens do not have.

Tuesday, February 21, 2006

Sexual Orientation Purity:

Jennifer Roback Morse's new article struggles with how to properly interpret and understand some of the same-sex survey data. She attempts to "deconstruct" the "sexual orientation" category. She writes:

"[H]omosexuality is not a well-defined phenomenon. It is a complex combination of behavior, attraction and self-identification. For instance, the definitive University of Chicago study by Edward Laumann and colleagues, showed that only a minuscule less than one percent of the population have had exclusively same sex partners since puberty."

She also attempts to hold sexual orientation to an unreasonable "civil rights" standard, arguing that in order to "qualify" as a legitimate "protected category" sexual orientation must make some type of near perfect analogy to race. She writes:

Now what does this have to do with the gay rights legal strategists? Sexual orientation as a fixed trait is central to their argument to have "sexual minorities" designated as "protected classes." The argument builds on an analogy with race. If a person is born gay, then the argument for decriminalizing same-sex behavior, legalizing same-sex marriage and making homosexual persons members of a protected class falls neatly into place by a straightforward analogy with laws protecting racial minorities.

As I've pointed out before, sexual orientation need not make such a near perfect analogy because we don't live in a world where race and only race is a protected category. As Richard Posner put it in Sex and Reason:

[G]iven Title VII and cognate laws, is there any reason to exclude homosexuals from a protected category that already includes not only racial, religious, and ethnic groups but also women, the physically and mentally handicapped, all workers aged 40 and older, and in some cases, even young healthy male WASPS? Is there less, or less harmful, or less irrational discrimination against homosexuals than against the members of any of these other groups? The answer is no.

Sex and Reason, p. 323

In a constitutional sense, "race" and "religion" are bookend protected categories. Race is entirely unchosen and a matter of birth; religion is entirely chosen and mutable. "Sexual Orientation" is somewhere in between.

I think that Morse properly identifies a "gray area" regarding sexual orientation that many folks do not entirely understand (and I will admit, even for folks who have thought about this quite a bit, there is still some mystery).

However, such "gray area" ought not be used to "deconstruct" this category. In fact, using gray areas to "deconstruct" certain "categories," is hallmark of the radical left-wing "social constructionists," who attempt to deconstruct not only "sexual orientation" but also categories like "race" and "gender."

And indeed, many categories which clearly do "exist," -- for instance, race -- are likewise subject to the same gray areas (or the traits exist on a continuum). Does any racial purity exist? Even the whitest of whites and the blackest of blacks probably have some related ancestors along the way. Dinesh D'Souza once wrote "And the presence of intermediate shades does not eliminate the possibility of valid racial classifications any more than the existence of twilight eliminates the division between day and night." The same is applicable to sexual orientation.

Bigots tended to look for racial purity. But ironically doing so increases the numbers of those in the "black or mixed race" box. If we add not just African Americans, but Hispanics with any amount of black blood, all Arabs and Southern Europeans to the "black or mixed race" box, then that box gets much larger than 12%. Similarly if we look for heterosexual purity, we might be surprised to find the "gay or bi" box to be not 3%, but around 1/3 of the population.

If anything I think the survey data vindicate some of Kinsey's findings about sexual orientation existing on a continuum.

Yes, there are many "gays" who have some kind of "incidental" heterosexuality. But there are also many straights who have some kind of incidental homosexuality. Many people would probably be shocked by the high number of self-identified and well-adjusted "straights" who have had homosexual behaviors in their past (and if you are such a straight person reading this post, you are more common than you think). I think Kinsey once estimated that 1/3 of men had a homosexual orgasm. That number is probably right.

Self-indentified gays or bis (3-6 on the Kinsey scale) are probably no more that 3-4% of the population. But if we then add all straights with incidental bisexuality (1-6 on the Kinsey scale, or perhaps .1 -6), we may be dealing with about 1/3 of the population, most of whom identify and understand themselves as "straight" (the exact number is one of those "mysteries" to which I alluded above). That still would leave a strong majority -- 2/3 -- with a more or less "pure" heterosexual orientation.

The best analogy in terms of understanding how sexual orientation clearly exists as an identifiable trait, is to handedness. (See this article by Chandler Burr). Keeping in mind that because every phenomenon is unique, all analogies are imperfect (that's why we call them analogies, not duplicates). For instance, considering all we do with our "other" hand, everyone is ambidextrous to *some* extent. And I don't think that everyone is likewise bisexual to some extent. But we realize that while our behavior is entirely a matter of choice, left-handedness and right-handedness are built in, unchosen, identifiable traits. And indeed, ambidextrousness likewise exists along a continuum. For a variety of reasons, I might choose to write with my left-hand. One thinks of switch hitters in baseball who we don't understand to be "ambidextrous"; nor do we see that the ability to "switch-hit" renders handedness a choice or something that can (or should) be changed.

All of the youthful experimentation to which Morse refers in her article is akin to right handed batters switch-hitting. Or righties experimenting with trying to write with their left hand. And when a righty writes with his left hand, sooner or later he realizes that he doesn't do so very well. The same can be said of heterosexuals experimenting with homosexual behavior and homosexuals experimenting with heterosexual behavior.

Monday, February 20, 2006

Boaz on Washington:

Before this President's Day is over (in 40 minutes), let me direct you to David Boaz's brilliant article on George Washington. The article deserves praise because it articulates what was great about Washington's character without attempting to deify him or falsify history.
This Blog Mentioned in The Bay Area Reporter:

Many thanks to University of Minnesota Law Professor and now contributor to the Volokh Conspiracy, Dale Carpenter for mentioning this blog in his Out Right column.

He writes:

Here are a few of the Web sites and blogs by gay writers who dissent in important ways from the tactics and goals of the gay left and its organizations. Not all of these writers can easily be categorized as either conservative or libertarian. All are committed to equality for gay Americans.

And I'm number 8 in his top 8:

(8) Jon Rowe ( Rowe is a libertarian college professor with a law degree. His blog covers everything from constitutional theory to sex to religion, all the things one shouldn't talk about in polite company. It is intelligent, refined, and measured – qualities badly lacking in much of the blogosphere.

Update: Carpenter's article has been reproduced at Independent Gay Forum, a great website.
Blogging Survey:

I received a personal email which seemed sincere from PhD student in the Department of Communication at the State University of New York at Buffalo, about a survey he is conducting. If you are a blogger and interesting in helping out with the research, click on this link.
Happy Presidents Day:

On this President's Day, Michael & Jana Novak have more to say on their book about George Washington's God, which I'm looking forward to reading. Off the bat, I see one factual point which I'd like to dispute. It's a theme that we will see coming up again, not just from Novak, but from others as well.

Q: Was Washington a Deist, or not?

A Washington's names for God sometimes sounded deist, but the actions his prayers asked God to perform belong to the biblical God, not the god of the philosophers. Washington believed that God favored the cause of liberty, and should be beseeched to "interpose" his actions on behalf of the Americans- and he often called for public thanksgiving for the many ways in which Americans "experienced" God's hand in events. He believed God could inspire thoughts and courage in human hearts, and give men fortitude to persevere in extreme difficulties. He held that praying for favors imposed duties on him who prayed.

Washington's reflections on the workings of Providence were deep, and hardened by the crucible of experience. On these matters, he was a Christian, not a deist.


There is, though, a dividing line between Deist and Christian. Strict Deists cannot accept that God intervenes in history on one side or the other. Their God is more remote and impersonal than that. By contrast, Washington acted as though God can intervene. In this spirit Washington and his men implored God's aid, often experienced it, and thanked Him for it again and again. He acted as a Christian, not a Deist.

I disagree with the notion that Washington's God was "the biblical God, not the god of the philosophers." The warm-intervening attributes of God which Novak describes was consistent with "the god of the philosophers." One thinks of both Jefferson and Franklin as the most philosophically minded Founders and the God whom they invoked was, like Washington's, a warm-intervening Providence. Whatever we choose to call such a belief system, the notion of a warm-intervening Providence is consistent with the attributes of the God in whom many of the Enlightenment philosophers believed.

See also, my original reaction to Novak's thesis.

Friday, February 17, 2006

Christian Influences on the Law:

Sandefur pointed me to this article from Claremont entitled, The Christian Origins of the Law. Now, obviously as someone who believes that law and government are, properly, in principle, secular entities, I have a few comments.

First, what we know as "the law" is the product of thousands of years of evolving doctrine in the West. And because for much of that time, Church and State were thought of as one, obviously Christianity will have had some meaningful influence on the law. For instance, the article notes:

Melanchthon's method of analysis, set by the categories of the second table of the Decalogue, derived the basic topics of our contemporary law school curriculum, constitutional law, family law, criminal law, property law, etc. Berman does a great service to English readers in introducing the work of other important legal innovators, such as Johann Schwarzenberg in the field of criminal law, and Johann Apel and Konrad Lagus in the areas of civil, economic, and social law.

Let's unpack this: Why the "second table of the Decalogue"? Well, it's because that's the table that contains essentially secular cross-cultural norms! As Christopher Hitchens notes in this article:

There has never yet been any society, Confucian or Buddhist or Islamic, where the legal codes did not frown upon murder and theft. These offenses were certainly crimes in the Pharaonic Egypt from which the children of Israel had, if the story is to be believed, just escaped....

In much the same way, few if any courts in any recorded society have approved the idea of perjury, so the idea that witnesses should tell the truth can scarcely have required a divine spark in order to take root.

Now, I was unaware that in Europe in the middle ages, a serious attempt at legal distinction between the first and second tables of the Decalogue was made (I'm willing to look at the evidence; but off the bat, I'm highly dubious). I have studied in meticulous detail the evolution of Church and State law in American and English law. And from my knowledge, before Roger Williams made his utterly novel arguments about the need to separate Church and State and recognize religious liberty, Church and State were thought of as one and no distinction was made between the different tables of the Decalogue in terms of what in "the Christian religion" should also exist in the civil law.

As David Barton (unintentionally) comically writes in this brief submitted in one of the Ten Commandments cases:

In an effort to substantiate this position historically, critics often point to the Rhode Island Colony under Roger Williams and its lack of civil laws on the first four commandments to "prove" that American society was traditionally governed without the first "tablet." However, they fail to mention that the Rhode Island Colony was the only one of the thirteen colonies that did not have civil laws derived from the first four divine laws -the so-called first "tablet." Significantly, every other early American colony incorporated the entire Decalogue into its own civil code of laws.

Now, I realize that Barton is neither a credible nor a professional historian and thus could be wrong, as he often is in his factual assertions. But from what I've independently verified, Roger Williams's Rhode Island was the first colony which believed government should be secular in its essential functions and that it was thus not a good idea to attempt to write the Christian religion into the civil law. As Williams himself put it: "All civil states with their officers of justice, in their respective constitutions and administrations, are . . . essentially civil, and therefore not judges, governors, or defenders of the Spiritual, or Christian, State and worship. . . ." So it makes sense that he would be the first to make such a distinction between the two tables of the Decalogue.

[Listen to this excellent lecture by Martha Nussbaum on Roger Williams.]

The Claremont article asserts the influence of Puritan and Calvinist theory on the law:

Here, too, a breakdown in the settlement of the Peace of Augsburg, and its parallel developments in the rest of Europe, led to a new period of crisis, culminating in the Puritan-led "English Revolution."

If the contribution of the Lutheran reforms was an emphasis on positivism, on the territorial Christian prince as law-giver, Calvinist-inspired reforms gave the impetus to a robust sense of the historical development of law. Here, "the Calvinist doctrine that history is wholly within the Providence of God" underlay a conception of England's history and institutions as "the heritage on which their constitutional law was founded and which gave guidance for its future development." While in some sense the features of a distinctive English philosophy of law predated this period, with the 17th-century transformation, the historical common-law tradition came into focus, crystallized, and sprang to life, giving rise to the works of the great common-law jurists Coke, Selden, and Hale. Here, too, Calvinist covenant theology spilled over to shape the transforming, innovative initiatives of a rich and vibrant voluntary associational life, leading to communitarian joint-stock enterprises, reform of private and public finance, charity schools and poor relief, to name only some of the most significant legal contributions of the period.

But what was distinctive about the American Puritans and Calvin was that they drew no distinction between Church and State, between the secular and the sacred. Roger Williams's rejection of the "Christian Commonwealth," and his belief that government should be, in principle, secular got him banished from Massachusetts.

Further, let's look at some of those Puritan laws and see what it means to incorporate the entire Decalogue into civil law. As Barton's brief notes, incorporating the First Command in Puritan Massachusetts required the following: "If any man after legal conviction shall have or worship any other god but the Lord God, he shall be put to death. Deut. 13.6, 10, Deut. 17.2, 6, Ex. 22.20."

In this sense, "the Christian Religion" has been almost entirely and rightly purged from the law. Indeed, our liberal democratic Founding, with its unalienable rights of conscience, required such a purge.

Here is Walter Berns on Calvin's Geneva arguing that on Church and State matters, Calvin's "Christian Commonwealth" was the polar opposite of what the Declaration of Independence required:

For Calvin, liberty of conscience meant just that, and no more than that. If someone gave voice to his conscience, thus being heard or read by others, he might rightly be punished. So it was that, as the effective governor of his city of Geneva, Calvin had one of his anti-Trinitarian critics [Servetus] put to death. Berns, Making Patriots, p. 42.

Berns eloquently writes on how recognizing the unalienable rights of conscience, which rights by nature belong equally to the believer and heretic alike, required a dramatic realignment on Church/State matters in liberal states.

Liberty of conscience was widely accepted at the time of the Founding, but this did not prevent some jurists and legislators from insisting, at least for a while (and given our principles it could be only for a while), that Christianity was part of the law, meaning the common law. So it had been in England, and so, it was assumed by some (but not by Jefferson), it would continue to be in America. 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 England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall remain in force, until they 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

In other words, liberty (and I should note "equality" too) of conscience for the believer and heretic alike required a purge of the sacred aspects of the Christian religion from the law, leaving behind the secular. And we are better off for it.

Wednesday, February 15, 2006

You've Already Lost the Argument with the American People, Mr. K:

Thomas Krannawitter, reacting to Willie Nelson's gay cowboy song writes:

Any argument that seeks to defend traditional marriage and the natural family must argument. It must begin by defining certain principles and then draw logical and necessary conclusions from those principles. But can these arguments be persuasive, however tightly-reasoned they might be, if the American people no longer believe in moral principles?

Those who seek to redefine marriage are perhaps most successful in the court of public opinion when they avoid argumentation altogether. They need only hold up a photograph of two women or two men holding hands (they are probably shrewd enough not to present an image of three men, but that is a different though related problem), and then ask why these decent citizens ought not have the full privileges and rights of marriage enjoyed by all married heterosexual couples. This is no argument, but it can be quite successful in shaping opinion.

It's funny that Krannawitter accuses the pro-gay side of being most successful when they "avoid argumentation" because the historic case against homosexuality rests largely on such "non-argument" grounds. Let's see: There is an unquestioned appeal to religious texts or traditions, Leviticus, et al. -- that's not an argument. There is also the (previously) unquestioned tradition of morally stigmatizing homosexuality -- that's not an argument either. And certainly Krannawitter knows that not just the legal and moral prohibitions on interracial relations, but slavery itself was vetted by traditional morality.

Now, there is indeed an "argument" against homosexuality. And certainly Claremont has been prominently making that argument (hence to link to Harry V. Jaffa making it). But in examining Claremont's argument -- when they "defin[e] certain principles and then draw logical and necessary conclusions from those principles" -- we see that they've already lost the American public. Their argument rests on the premise that natural differences between the sexes demonstrate procreation as the teleology of the sex act. See Ed Feser's piece (and my reaction) for an articulate variation of Claremont's argument. When we "then draw logical and necessary conclusions from those principles" we see that not only is homosexuality "wrong" because it's "unnatural" but so to is, in Feser's words, "ejaculating into a Kleenex, or a condom, or into any bodily orifice other than a vagina." So there you go, a married Christian couple having contracepted sex, any heterosexual couple having oral sex, or any male teenager masturbating is as unnatural and "wrong" as homosexuality according to Krannawitter's argument.

Now, Claremont/Feser may be morally right (I don't think they are), but they've lost the American people with their argument long ago (I don't think I need to cite the stats on contraception, oral sex, and masturbation among the American public, do I?).

Also, there are some variations of the natural law argument that focus more on the man/women natural distinction than on procreation per se (Jaffa has attempted to leave himself such an "out" -- see this post of mine focusing on the failure of Jaffa's man/woman natural distinction argument). For instance, once I debated someone who claimed that oral sex and contraception could be viewed as natural under the aegis of the "pair-bond." But, in doing so, he (sneakily) attempted to shift the focus from "procreation" to "pair-bonding." And guess what, homosexuals can "pair-bond" just as effectively as heterosexuals. Thus, in making the natural law argument, all roads lead to procreation. This is why, in the comments section of Feser's post, reacting to Francis Beckwith's pondering the possibility that married contracepted sex is "natural," Right Reason site editor Max Goss asserts that such an argument "would justify sodomy" and therefore, could not be countenanced. Good for Goss and Feser for having the intellectual honestly to take their position and consistently defend it, even if it's been deemed a loser with the American public.

Tuesday, February 14, 2006

Scott Bullock Interview

Scott Bullock, the attorney who argued the case of Kelo v. New London has an interview in The New Individualist.
Dead Ant, Dead Ant...

As a loyal, and often disappointed, fan of Steve Martin, I went to see Pink Panther last night. Awful. Lousy. Sgt. Bilko bad. Mixed Nuts bad. Like watching a friend become an alcoholic. In fact, I was disappointed that it wasn't worse, because then I could at least have had the joy of complaining about it in hyperbolic agony, as I do with true masterpieces of putridity like Armageddon or Tin Men. This was just plain, old-fashioned, forgettable-quality, not-funny bad.

Monday, February 13, 2006

Fish and Relativism:

Pomo poster boy Stanley Fish has generated some controversy in the blogsphere for his article on the Islam Cartoons. Andrew Sullivan focuses in on Fish's radical relativism: "For post-modernists, liberalism is just another ideology. It has no superior claim to our allegiance than, say, Islamism or scientology or Raelian metaphysics."

And here Julian Sanchez notes how Fish's relativistic rejection of liberalism doesn't necessarily lead to the happy go lucky multicultural, "can't we all just get along?" results, and has right-wing overtones.

What's more interesting here, though, is that while Fish is typically pegged as hailing from the left, his screed is in many ways a perfect fit for the likes of Little Green Footballs. As Princeton's Kwame Anthony Appiah has astutely pointed out, a hard relativist position in which there's no common language in which to proffer cross-cultural criticism doesn't yield some kind of fuzzy "whatever's right for you" tolerance, but rather forces the conclusion that members of different cultures have nothing to learn from each other--and that conflicts of value can't ultimately be resolved by reason, but only by force.

But of course, Allan Bloom noted this before Appiah. Indeed, this insight (how post-modern relativism ultimately traces back to Nietzsche and the implications of this) is one of the central values of The Closing of the American Mind. The author of post-modern relativism is Nietzsche. And Nietzsche, although he has been adopted (or "coopted") by the Left (hence the chapter "The Nietzscheanization of the Left or Vice Versa") was a hard core, inegalitarian, elitist right-wing philosopher. So it shouldn't surprise us if post-modernism doesn't always (or perhaps ever) seem to fit properly with leftist, egalitarian tolerance.

As Bloom wrote in Closing:

Nietzsche was a cultural relativist, and he saw what that means -- war, great cruelty rather than compassion. War is the fundamental phenomenon on which peace can sometimes be forced, but always in the most precarious way. Liberal democracies do not fight wars with one another because they see the same human nature and the same rights applicable everywhere and to everyone. Cultures fight wars with one another. They must do so because values can only be asserted or posited by overcoming others, not by reasoning with them. p. 202
Western Europe’s Fabulous Success With Socialism!

Two Swedish researchers, Frederik Bergstrom and Robert Gidehag, note in a monograph published last year that “40 percent of Swedish households would rank as low-income households in the U.S.” In many European countries, the percentage would be even greater.

More here (c/o newsalert).

Glad nobody put one of these on.
One of Us?

I, too, am a little confused by Randy Barnett’s critique of what he calls the “underlying principles” approach to constitutional interpretation. In his Taft Lecture, Barnett says that many people, deterred from originalism by the various criticisms made of that approach, appeal instead to what they believe are the “underlying principles” of the Constitution, and then apply those. This, he says, allows people to find ways around the sometimes troubling implications of a strict originalism. People adopting the underlying principles approach “point to particular cases we today all accept as sacred, Brown v. Board of Education, is perhaps the most canonical...[and thenm claim] that because the original meaning of the text cannot deliver this result, it must be rejected as morally inferior.” Then such people claim that their underlying principles approach will yield such results.

What’s interesting is that this sounds like a critique of the liberal originalism approach advanced by, among others, Scott Gerber. Gerber argues that the Constitution must be interpreted through the lens of the Declaration of Independence—that the Declaration gives us the underlying principles of political philosophy which ought to guide our reading of the Constitution.

But is that what Barnett is saying? Perhaps not. He says, for example, that the underlying principles approach that he’s targeting is one which appeals to principles which “are not themselves in writing,” which, of course, the Declaration certainly is. And Barnett hints that he thinks that a proper originalism might yield the result of Brown: "Very often a proper version of original meaning originalism offers support for results that present doctrine has a difficult time justifying." He doesn’t actually say that his originalism would have eradicated segregation, but that seems to be what he’s hinting. The reason that’s important is that liberal originalism certainly would yield the result (though not the reasoning) of Brown, as Justice Thomas’ dissents in various affirmative action cases shows. And Barnett’s fondness for the anti-slavery constitutional theory of Lysander Spooner suggests an affinity with liberal originalism. Liberal originalism is really just the good old fashioned anti-slavery constitutionalism of Spooner, Frederick Douglass, and Gerrit Smith.

Moreover, Barnett’s laudable fascination with the Ninth Amendment strongly suggests that he, too, must be guided by liberal originalism. He complains that Scalia’s version of originalism (which we call “conservative originalism”) would knock over the Ninth Amendment because it’s not rule-like, but refers to abstractions like “other rights.” The liberal originalist says that to understand a phrase like that, you must consult the Declaration, which refers to the “inalienable rights” among which are life, liberty, and the pursuit of happiness. How are we to understand such words as “rights” or “liberty” which are used in the Constitution if not by reference to the Declaration? Barnett is very eager to use contemporary textual sources as evidence for understanding the objective meaning of terms at the time of their enactment; he consults newspapers and dictionaries. Why not, then, the Declaration of Independence, which certainly was well understood by the founding generation? Obviously it will not solve every definitional problem, any more than a dictionary will. But it is a textual source, and more. It is the great guidepost by which we can navigate when doing some of the bigger work of constitutional reading. When we are trying to understand just what the “privileges or immunities of citizens of the United States” are, the Declaration comes in awful handy. More handy, I would say, than the Pennsylvania Gazette, or whatever it is.

So is Barnett assuming that liberal originalism and his “original meaning originalism” are identical, and aiming his critique at other kinds of “underlying principles” approaches? Perhaps, although I don’t know that Barnett has ever made a public statement one way or the other about Gerber’s arguments. And even if so, he must explain what it is that makes his critique not apply to liberal originalism. Is Barnett just criticizing the un-written versions, like Bruce Ackerman’s revolting argument that the New Deal “amended” the Constitution? If so, it would be nice to see him say it.
Saddam’s Innocent Till Proven Guilty

This article about Hussein’s trial, written by an Ayn Rand Institute person, makes a strange claim: “A trial that presumes Hussein’s innocence can achieve nothing but a travesty of justice.” Now, if the article were just about the fact that the trial has become a farce, I would agree. If the claim were that the Islamic world needs profound philosophical reform before it can even lay a legitimate claim to the opportunity to provide objective, real justice in a trial format, I would agree, also.

But the claim that no trial may presume Hussein’s innocence is different. The presumption of innocence is not a matter of political preference or judicial expediency; it’s an epistemological necessity that can’t be escaped. It arises from the rule of “onus probandi,” that the person who makes the positive claim must also provide the reasons supporting that claim. And that rule rests on the fact that it is simply impossible to prove a negative: a person cannot logically disprove the infinite number of hypothetical claims that might support a claim. For example, one simply cannot prove that Columbian drug lords, or space aliens, or space alien drug lords, did not murder Nicole Brown Simpson. But one can prove that there is no reasonable doubt that O.J. Simpson did murder her.

So, yes, a rational trial of Saddam Hussein would presume his innocence. I think that presumption would be very, very easy to overcome, but it cannot be dispensed with.

Sunday, February 12, 2006

Thank Goodness for The Inauthentic

In The Substance of Style, Virginia Postrel argues that the term “authentic” is often just meaningless snobbery, a word used by people who oppose the dynamism of an open society. Music or artistic styles are often called “inauthentic” precisely when they are innovative or when they incorporate different styles together to make something new, or when they’re just user-friendly, accessible versions of something that the snobbery class would prefer to keep obscure.

This came to mind yesterday as I attended the Chinese New Year parade in San Francisco. This parade was anything but an “authentic” Chinese New Year parade. There were dragons and firecrackers and beautiful girls in gorgeous silk dresses, of course, but there were also western-style military marching bands—even a gay marching band—and teenagers doing 50s-style dancing to Elvis Presley’s “You Ain’t Nothin’ But A Hound Dog” (since it’s the Year of the Dog). One float featured stars of the San Francisco Chinese Opera, and another was done up to look like a Hummer with something painted on it—don’t know what. The children’s bands were made up of the whole spectrum of ethnic groups, all in Chinese costumes, and banners displayed the names of many of the parade’s sponsors—Ford, Wells Fargo, and several Northern California casinos.

Now, that was not an “authentic” Chinese parade. But it sure as hell was an authentic San Francisco parade. It embodied all that made and still makes San Francisco so great: the astonishing variety and intermixture of cultures, all given life by capitalism. It was very firmly rooted in the tradition of Gold Rush San Francisco, with its diversity, its exuberance, and its proud display of gaudy finery. These are the values of the dynamic society; the parade spoke of freedom in a way that was very, very authentic. Yet that is just the sort of authenticity that escapes the intellectuals’ notice.
John Adams, Militant Unitarian:

I just got this great little book of quotations on the Founders and Religion by James H. Hutson (which I may be reviewing for a pretty distinguished publication -- more on that later).

This book is very fair & balanced. And the quotes are all accurate.

Anyway, I found some interesting quotes from John Adams on the Trinity, more evidence that he and Jefferson were absolutely like-minded on the basic religious tenets. In fact, this quote sounds like one of Jefferson's. From his March 28, 1816 letter to his son John Quincy Adams:

An incarnate God!!! An eternal, self-existent, omnipresent omniscient Author of this stupendous Universe, suffering on a Cross!!! My Soul starts with horror, at the Idea, and it has stupified the Christian World. It has been the Source of almost all of the Corruptions of Christianity.

One reason why I focus so much on the Trinity/Unitarian fact is that this seems to be one of the key indicators of the heterodox theology in which our key Founders believed. In other words, usually, it's not just that one issue that separates the religious convictions of these key Founders from orthodox Trinitarian Christianity, but a whole slew of others as well. Indeed orthodox, conventional Christianity had many "Corruptions," of which the Trinity was but one, probably the most important. Adams argues that the Trinity was the "source" of the corruptions; it was the one belief which led to many other false teachings, like eternal damnation, salvation through grace, etc.

There certainly is much nuance to the Founders' beliefs as well (often, we don't fit so easily into little boxes). Many of the Founders who appear to be orthodox Christians -- certainly more orthodox than Jefferson, Adams, and Franklin -- nonetheless hedge on some of the more unappealing tenets of orthodox Christianity. For instance, John Jay appears to be an orthodox Christian. Yet, he hedges on the Trinity. He writes in his February 18, 1822 letter to Samuel Miller: "For proof of [the Trinity] I searched the Scriptures diligently -- but without Success. I therefore consider this Position of being at least of questionable Orthodoxy."

Benjamin Rush likewise appears to be an orthodox Christian. Yet he denies eternal damnation. He writes in "Travels through Life," his autobiography:

At Dr. Finley's School, I was more fully instructed in these principles by means of the Westminster Catechism. I retained them but without any affection for them 'till abut the year of 1780. I then read for the first time Fletcher's controversy with the Calvinists in favor of the Universality of the atonement. This prepared my mind to admit the doctrine of Universal salvation, which was then preached in our city by the Revd. Mr. Winchester. It embraced and reconciled my ancient calvinistical, and newly adopted Armenian principles. From that time I have never doubted upon the subject of the salvation of all men. My conviction of the truth of this doctrine was derived from reading the works of Stonehouse, Seigvolk, White,Chauncey, and Winchester, and afterwards from an attentive perusal of the Scriptures. I always admitted with each of these authors future punishment, and of long, long duration.

John Adams writes, in his letter to Francis van der Kemp, July 13, 1815:

"I believe too in a future state of rewards and punishments too; but not eternal."

All of this once again confirms what is written in this article by Gregg Frazer that the key Founders "believed in a personal after-life in which the wicked will be temporarily punished and the good experience happiness forever."

There is also much in the book that anti-secularists will find useful as well. Check out Hutson's book!

Saturday, February 11, 2006

The Importance of "Consent":

The Penn Symposium on Unemurated Rights

1. Randy Barnett on Theories of Legitimacy:

It was nice to see Randy Barnett invoke the Declaration of Independence in his presentation. The Declaration is important because it, as a Founding document, raises the two bookend theories of legitimacy in liberal democracy (which were a point of controversy at the symposium). The very term "liberal democracy" itself perfectly describes these bookends: "Democracy" simply means majority rule and voting or consent of a majority; the "liberal" qualifier means certain rights are antecedent to majority rule.

Barnett's argument is that government legitimacy in what it does (the substantive rules it enacts) derives more so from securing rights of individuals than simply "consent" in the form of either majority vote of those living today, or the consent of the long dead voting populace who ratified the constitutional system under which we live.

This approach sharply contrasts with the "democratic theory" approach of someone like Justice Scalia who argues that majority vote is what by in large confers legitimacy, and even when minorities possess rights that majorities cannot abridge, it is only because some democratic majority, in its benevolence, decided to grant such minority rights.

Barnett would argue that a majority vote to do anything -- criminalize sodomy or voluntary drug use, enact a program redistributing wealth from A to B, or any of the thousands of things that legislatures vote into law -- simply doesn't confer legitimacy. What confers legitimacy is when government secures rights. Barnett is right. To use some reductio ad absurdums, some of the most illiberal rules and regimes can be and have been vetted by majority rule. The holocaust received majority support, as did many illiberal revolutions, like in Iran. Slavery certainly was supported by democratic majorities.

In his book, Barnett goes into far more detail than I will get into here demolishing such theories of consent and majority vote confers legitimacy.

Barnett's approach, I would argue, is more consistent with the Declaration of Independence (which should be a lens through which the Constitution is interpreted), than the "democratic theory" form of originalism, which views consent of majorities as the ultimate conferrer of legitimacy.

I also want to focus on the question, "well then, how exactly is consent important, especially if consent of the governed is invoked in the Declaration?"

The Declaration of Independence, in the following very short phrase, invokes both the "consent" and "individual rights" theories of legitimacy: "[T]o secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed;..." Now, here we see the Declaration clearly states that the "ends" or "legitimate powers" of government is not simply to do the bidding of the majority but rather to secure various unalienable rights, of which liberty, in its broad and general sense, is one.

"Consent" Legitimates Government as an Institution:

It's the government institution itself that derive legitimacy from the consent of the governed. That is, the constitutional system under which we live, and those in charge with administering it must be vetted by majority rule. In order to create a constitutional system, a majority did indeed have to establish it. It would not have been legitimate if, for instance, a cohort during revolutionary times seized power and unilaterally imposed without consent, a natural rights libertarian utopia. Similarly, all states had to voluntarily join the union. If, for example, we demanded that slavery be abolished as a prerequisite for joining the union, then there would have been no union. That we allowed slave states to join the union did indeed create a "Crisis of the House Divided" because slavery was quintessential in the way it violated the unalienable rights for which governments are instituted among men. But we still needed the consent of the slave states, and the people therein, in order to have them be legitimately part of the union.

Similarly today, those in power are legitimately there because of the consent of the governed. If I were king of the universe, I might unilaterally appoint Randy Barnett President of the United States (get that veto pen ready!), but that would not be legitimate in a liberal democracy. It would be more legitimate rather, to have Clinton or Bush as Presidents, but also have them constrained as to what they may legitimately do. Similarly, we need legislators to pass necessary and proper laws which fall within the purview of legitimate government powers. If the President or the King just unilaterally appointed his buddies as legislators for life, that would not be legitimate. If we are dissatisfied with the way our legislators are behaving, we can vote them out. But it does not necessarily follow that they can or should therefore do what the majority of folks who voted them in wants them to do. Were that the case, 51% of the poorer end of the bell curve in the population could vote in legislatures and demand that they seize all of the wealth of the richer 49% and redistribute it. But they can't because property is an unalienable individual right.

Get it?
I’m Sorry, What Did He Just Say?

Are the words to Bon Jovi’s “Who Says You Cant Go Home” really

I was running away from the only thing I've ever known
Like a blind dog without a bone
I was a gypsy lost in the twilight zone
I hijacked a rainbow and crashed into a pot of gold....

Am I the only person who thinks this is wildly inappropriate? (Don't worry, I won't be burning down any embassies.)

Friday, February 10, 2006


I attended this symposium (I got there at 12:30, because I had office hours until my 11:30) at Penn Law on “The Future of Unenumerated Rights.” I got to see, among others, Lawrence Solum and Randy Barnett present.

It was a great symposium (and I'm continually amazed that these things aren't more crowded -- like standing room only as they should be). I'll do a substantive post on the matter over the weekend.

When the conference ended I briefly said hi to Barnett and Solum and the three of us found ourselves trying to find the exit to the Penn Law building because they had lock the front entrance (and I was running to get to my car before the meter monsters). Fun.
My Favorite Planet

I just finished Dava Sobel’s The Planets, which is a cute little book for light reading. Sobel writes for the crowd that wants a little literary feeling, but nothing too heavy: she exploits alliterative phrasing and little devices, including writing one chapter as a first-person account as ALH84001, the famous Marian meteorite.

The literary swamped the scientific, though, in her chapter on Jupiter, and I found this distressing because it’s my favorite planet. Sobel’s theme in this chapter is astrology: she tells the horoscopes of Galileo the astronomer as well as Galileo the spacecraft, all of which is cute and so forth, but never does she stop and say clearly that astrology is idiotic crap to which nobody should give a second’s worth of serious attention. I don’t imagine that Sobel really believes in astrology, but from this chapter you wouldn’t know it, and I fear that foolish people will find here the sort of thing that they long for: vindication of their superstition.

Jupiter is so much more interesting than that, though. It’s more than ten times the diameter of Earth, yet it rotates completely in only ten hours. Parts of it, that is—because some of its cloud bands spin one way and other cloud bands spin the opposite way, which is partly responsible for the tremendous storms we can see. Yet the storms never waver out of their latitudes, always remaining in the same predictable place, for centuries, in the case of the Great Red Spot. Jupiter’s core is metallic hydrogen, a super-compressed variety of the element that can’t be produced on Earth for more than an instant. The tremendous speed of this metallic core generates an enormous magnetosphere—a magnetic envelope surrounding the planet that, if you could see it, would be as large in our sky as the Sun is. This magnetic field is so strong that space probes are physically shaken by it when they enter it. Worse, it is tearing Jupiter’s moon Io apart, atom by atom, creating a huge torus of dust that’s been stripped off of the moon—which contains the only known active volcanoes other than Earth’s. The electricity generated by Io’s flight through the magnetosphere is beyond belief: 400,000 volts. Meanwhile, the tremendous pressure on Jupiter, and its exotic materials, make for some of the most fascinating weather patterns ever seen, incluing gigantic lightning bolts far beyond anything Earth knows. Earth itself was even dwarfed by the explosions of comet Shoemaker-Levy 9; each of its impacts on Jupiter were the size of several Earths. How can someone not love this planet? And, probably the best of all, when Galileo dropped a probe into the atmosphere, the information it relayed to us before its eventual destruction demolished almost every previously held theory about the planet’s nature.

How can someone not love this amazing planet?

Thursday, February 09, 2006

The Bible and Morality:

I want to thank Sandefur especially for the link to this very interesting site by Larry Arnhart. This post in particular raises some very important points.

Proving moral truths can be a very complicated matter; so it would be wise to be very skeptical of anyone who claims to have "easy answers" in this regard. One claim that is often bandied about is that the Bible -- meaning taken as a literal, inerrant whole -- contains those answers. Not so. On some of the most elementary issues of morality, the Bible, read in this respect, falters. As Arnhart writes:

Holloway repeatedly asserts that religion supports some very specific moral positions--such as condemning slavery. But he never cites any specific religious texts to show how they necessarily support the moral positions that he favors. The case of slavery and "universalism" illustrates the problem. He assumes that religion necessitates a "universal" morality that would deny the morality of slavery. But many religious traditions have allowed slavery, and the Bible never condemns slavery or calls for its abolition. On the contrary, in the American debate over slavery, Christian defenders of slavery were able to cite specific biblical passages in both the Old Testament and the New Testament supporting slavery. Opponents of slavery had to argue that general doctrines such as the creation of human beings in God's image implicitly denied the justice of slavery. But they could never cite any specific passage of the Bible for their position. Here's a clear case of where the moral teaching of the Bible depends on our coming to it with a prior moral understanding that we then read into the Bible.

Moreover, the "universalism" of the Bible is in doubt. I don't see a universal morality in the Old Testament. Moses ordering the slaughter of the innocent Mideanite women and children, for example, manifests a xenophobia that runs through much of the Old Testament.

Now, of course, the New Testament does seem more inclined to a universal humanitarianism. But the Book of Revelation teaches that at the end of history the saints will destroy the Antichrist and the unbelievers in bloody battle. The bloodiness of this vision has been dramatized throughout the history of Christianity. (See, for example, Tim LaHaye's popular LEFT BEHIND novels.)

Holloway speaks of the moral universalism required for opposing Nazism. Is there any evidence that those who rescued Jews in World War II were all moved by religious belief? My impression is that religious belief was not decisive for the rescuers. And, of course, there is a continuing controversy over whether the Christian churches in Europe did enough to oppose Hitler. The German Lutheran Church was inclined to interpret the 13th Chapter of Romans as dictating obedience to the authorities. Martin Luther himself was brutal in his expression of anti-Semitism. How would Holloway explain cases like this? Would he say that the true doctrines of biblical religion always require universal love, and therefore any behavior by a biblical believer that violates universal love is based on a misinterpretation of biblical doctrine?

Tuesday, February 07, 2006

Tom Bell on Sovereign Immunity

Some important and interesting comments on sovereign immunity at Agoraphilia. The best thing is that Prof. Bell asks the right question: what makes governmental immunity different than immunity for private actors? In a society based on the principle that "all men are created equal," the concept of immunity for governmental actors must rest on some principled distinction between harms caused by businesses and harms caused by governments. And I have never encountered a good distinction. In Owen v. City of Independence, 445 U.S. 622 (1980), the Supreme Court recognized that economic incentives were good reason for cities to have to pay for violating individual rights. “The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens’ constitutional rights,” wrote Justice Brennan. Since “it is the public at large which enjoys the benefits of the government’s activities, and it is the public at large which is ultimately responsible for its administration…it is fairer to allocate any resulting financial loss to the inevitable costs of government borne by all the taxpayers, than to allow its impact to be felt solely by those whose rights…have been violated.” Quite so. If it's sauce for private companies, it should be sauce for government as well.
Superbowl Standards

I don't get it. Sexy girls washing windows (fully clothed) is not allowed, but brutal physical violence against women? Yeah, they'll air that.
Ancient Greek Ship Discovery

This is very cool. A sunken Greek ship loaded with cargo. “The wreck is ‘like a buried UPS truck,’ said David Mindell of the Massachusetts Institute of Technology.”
New London’s Latest Plan for Susette Kelo’s Land

The latest proposal: “Under a plan presented to the City Council Monday night, four people whose homes were seized for a private development would be allowed to stay. The city would own their properties and the residents would have to pay the city to live there.” It’s strange to use the word “compromise” in this case. Usually, a compromise is reached between people who each want different things and they reach a bargain where they each get something they’re satisfied with. Here, one side wants to just be left alone in her house, and the other side wants to seize it with the force of the state. Not exactly what you’d call a business deal. But, as Lincoln said,

We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatable things, called by the same name—liberty.

(HT: Nexus)

(Cross posted at the still-ailing PL.)
Elijah Lovejoy, 2006

I have little patience for the excuse offered on many blogs that the Danish Mohammed cartoons are offensive to Muslims, or that they, in the words of PZ Myers, “perpetuat[e] stereotypes of Muslims as bomb-throwing terrorists.” Somehow, the word stereotype doesn’t seem to have the same impact here. Three embassies attacked, four people killed, protestors in the streets with signs saying "Exterminate those who slander Islam," "Freedom go to Hell" and worse…. And the sensitivity crowd insists that Westerners were in the wrong for publishing cartoons of Mohammed. The fact is that the freedom to publish religiously offensive drawings and writings is absolutely imperative to civilization and progress, not merely out of a totemic respect for a freedom of speech bequeathed to us from our ancestors, but because dogma is a great force for evil in the world, whether that dogma be Christian or Muslim. What the Muslim world—and the West—needs is secular values, and that is being overshadowed by the calls for sensitivity that, among some, originate from a dark hostility to Western civilization, and among others, arise from nothing more than simple, understandable, fear.

In the 1830s, a similar incident rang the bell in the United States about where our freedoms were headed if we did not confront the barbaric practice of slavery. Elijah Lovejoy was moved to publish vigorous attacks on slavery after seeing a slave burned to death at the stake. His writings were, no doubt, offensive to southerners, who cherished their culture as much as the violent protestors of the Islamic world. Those southerners acted, lynching Lovejoy and throwing his press into the river. Doubtless many then, as today, secretly thought Lovejoy deserved his fate, for being so “insensitive” to the southern way of life, which, they thought, was neither better nor worse than any other way of life; that age had its cultural relativists too. But Lovejoy, whose death made him a martyr for the cause of freedom, knew better:

See the danger, and the natural and inevitable result to which the first step here will lead. To-day a public meeting declares that you shall not discuss the subject of Slavery, in any of its bearings, civil or religious. Right or wrong, the press must be silent. To-morrow, another meeting decides that it is against the peace of society, that the principles of Popery shall be discussed, and the edict goes forth to muzzle the press. The next day, it is in a similar manner, declared that not a word must be said against distilleries, dram shops, or drunkenness. And so on to the end of the chapter. The truth is, my fellow-citizens, if you give ground a single inch, there is no stopping place. I deem it, therefore, my duty to take my stand upon the Constitution. Here is firm ground—I feel it to be such. And I do most respectfully, yet decidedly, declare to you my fixed determination to maintain this ground. We have slaves, it is true, but I am not one.

Monday, February 06, 2006

When the Hell Did I say This?

Clayton Cramer writes:

My wife and I were watching TV the other night, and MSNBC ran a report about a sting operation to catch men who are trolling online for children for sex. Now, gay activists/law professors like Jonathan Rowe are going to start whining again about how "intergenerational sex" isn't really that bad a thing. Too bad.

I do believe that the dispute Cramer and I had was over whether it was "reasonable" to prosecute an adult who has consensual sex with a 17-year-old as a "child rapist." That's hardly "intergenerational sex."

To tell you the truth, I wouldn't even have a problem with outlawing (with reasonable punishments) any adult having consensual sex with any underaged person (that is under the age of 18), but just don't call it "child rape," because that's not what it is in a factual sense.
Muslim Protestants

The title of this blog entry echoes something that you hear pretty often—that the Islamic world is in need of a Reformation, and badly. But that’s not quite right. As Daniel Benjamin and Steven Simon point out in The Age of Sacred Terror, groups like Al-Quaeda and its affiliated entities are Muslim Protestants. Sixteenth century Christian Protestantism was a violent, theocratic, iconoclastic movement that sought to purge a corrupt Christendom of pagan and secular influences. The destruction of churches and idols and the adoption of a brutal code of religiously-based law were among the top priorities of early Protestants, just as much a they are among the Islamist radicals today. What is Iran if not a nuclear age version of Calvin’s Geneva? Baldilocks might be right that “Islam is in the same stage of development that Christianity was in when proponents of the latter religion were burning so-called witches and other ‘infidels’ at the stake,” but remember that there were more witch-burnings during the Reformation than during the Renaissance or Dark Ages periods, and Protestants burned at least an equal number of witches.

What the Muslim world needs is not a Reformation but an Enlightenment. The separation of church and state, the concept of individual rights and limited government, open markets, international peace, respect for women, tolerance for learning and diversity—all of these are not Protestant values but Enlightenment values. They were as much the result of humanistic Protestants in Britain as of humanistic Catholics in France, and they have much, much more of Athens than of Jersusalem about them. So, if it’s going to happen at all, in the words of the great moral philosopher George Harrison, it’s gonna take time. A whole lot of precious time. It’s gonna tame patience and time. To do it, to do it, to do it, to do it, to do it, to do it right, child.

Sunday, February 05, 2006

The Wages of Nagging

This article is amazing. Here’s what happened: President Bush, acting on a decade of intelligence from a many reliable sources, as well as the claims of Saddam Hussein himself, invades Iraq and deposes Hussein. Then “anti-war” Americans spend more than a year denouncing him for this decision and ridiculing him for acting on the best available intelligence, because we didn’t find any WMDs in Iraq. Their goal is to restore the pre-Sept. 11th principle that we should never engage in preemptive attack, but should wait until we are struck first.

The natural consequence of all of their protests is, of course, to make future presidents far less likely to act on the same kind of intel when it comes to another confrontation, because such a future president will, of course, think to himself “Well, Bush acted on intel like this and look what happened to him! So I better wait a little longer.” Such an incentive is just what we don’t want to have in the post-Sept. 11th world. Nevertheless, the “anti-war” side continues to set us up for that day when a Kerry or a Clinton Administration hesitates to act out; they insist that we should delay, delay, delay in any future case.

And now they complain that America lacks the necessary credibility to confront Iran! Well, whose fault is that? Is it the fault of a president who, again, decided that we should confront threats before they explode in our faces, or is it the fault of those who have protested and written and screamed and hollered in efforts to restore the pre-September 11th mentality? Astounding!
Darwinian Conservatism

I was delighted to find that Larry Arnhart, author of the very important books Darwinian Conservatism and Darwinian Natural Right, has a blog!
Some Excellent Columns on The War

Positive Liberty has been tented for termites, and I appreciate Jonathan Rowe letting me crash on his couch.

I thought I’d post two excellent columns on the war that deserve to be read in their entirety. First, Mark Steyn:

One day, years from now, as archaeologists sift through the ruins of an ancient civilization for clues to its downfall, they’ll marvel at how easy it all was. You don’t need to fly jets into skyscrapers and kill thousands of people…. [I]f you frame the issue in terms of multicultural “sensitivity,” the wimp state will bend over backward to give you everything you want…. Thus, Jack Straw, the British foreign secretary, hailed the “sensitivity” of Fleet Street in not reprinting the offending cartoons.

No doubt he’s similarly impressed by the “sensitivity” of Anne Owers, Her Majesty’s Chief Inspector of Prisons, for prohibiting the flying of the English national flag in English prisons on the grounds that it shows the cross of St. George, which was used by the Crusaders and thus is offensive to Muslims. And no doubt he’s impressed by the “sensitivity” of Burger King, which withdrew its ice cream cones from its British menus because Rashad Akhtar of High Wycombe complained that the creamy swirl shown on the lid looked like the word “Allah” in Arabic script…..

And doubtless the British foreign secretary also appreciates the “sensitivity” of the owner of France-Soir, who fired his editor for republishing the Danish cartoons. And the “sensitivity” of the Dutch film director Albert Ter Heerdt, who canceled the sequel to his hit multicultural comedy “Shouf Shouf Habibi!” on the grounds that “I don’t want a knife in my chest”—which is what happened to the last Dutch film director to make a movie about Islam: Theo van Gogh, on whose “right to dissent” all those Hollywood blowhards are strangely silent. Perhaps they’re just being “sensitive,” too….

Very few societies are genuinely multicultural. Most are bicultural: On the one hand, there are folks who are black, white, gay, straight, pre-op transsexual, Catholic, Protestant, Buddhist, worshippers of global-warming doom-mongers, and they rub along as best they can. And on the other hand are folks who do not accept the give-and-take, the rough-and-tumble of a “diverse” “tolerant” society, and, when one gently raises the matter of their intolerance, they threaten to kill you, which makes the question somewhat moot.

Second, and even better, Ibn Warriq:

Are we in the west going to cave into pressure from societies with a medieval mindset, or are we going to defend our most precious freedom -- freedom of expression, a freedom for which thousands of people sacrificed their lives?

A democracy cannot survive long without freedom of expression, the freedom to argue, to dissent, even to insult and offend. It is a freedom sorely lacking in the Islamic world, and without it Islam will remain unassailed in its dogmatic, fanatical, medieval fortress; ossified, totalitarian and intolerant. Without this fundamental freedom, Islam will continue to stifle thought, human rights, individuality; originality and truth.

Unless, we show some solidarity, unashamed, noisy, public solidarity with the Danish cartoonists, then the forces that are trying to impose on the Free West a totalitarian ideology will have won; the Islamization of Europe will have begun in earnest. Do not apologize.

This raises another more general problem: the inability of the West to defend itself intellectually and culturally. Be proud, do not apologize.
The New Blasphemy Laws:

I don't know if any intellectual has made the analogy quite this way, but, it seems to me that 1) "harassing speech"/hostile work environment causes of action and 2) hate crimes statutes, which apply to not merely conduct, but speech (I know the latter are common in other countries, even Canada, not the US; but the former do exist under US law) are our modern day blasphemy laws.

The recent controversy over the Danish cartoons and the idea that any legal action could or should be brought against the artist and publisher brings this to mind.

I distinctly remember watching the 700 Club some years ago where Pat Robertson remarked that Christians should be able to sue for harassment under workplace anti-discrimination statutes when their fellow workers use Jesus' name as a swear word. Given the hostile work environment theories recognized by our courts, he well could have a case.

But instead of fighting the excesses of PC...well, if you can't beat 'em, join 'em.

As Pete Townsend said, "Meet the new boss, same as the old boss."