Linked and more on bisexuality:

Blogcritics linked to my too-long post on *real* bisexuality (relatively rare) v. having *some* degree of bisexuality (in my opinion, more common than most are aware) and featured a real cool pic of David Bowie, whom I use to illustrate my overall point.

In that very long post, I don't know why I didn't mention the Kinsey scale. But I will now.

For those who don't know. A Kinsey "6" is exclusively gay, a "0" is exclusively straight, a "3," a perfect bi. We tend to think of all gays as "6s," all straights as "0s" and all bis as "3s." What many people don't realize that is that there are a lot of self-defining "gays" who are 4s and 5s, and many self-defining straights who are 1s and 2s. There are also 5s who can and do, on occasion, have sex with women and who call themselves "bi" to appear more "normal," but given that a 5 cannot flourish in any other relationship than a homosexual one, a 5 is essentially "gay." And I'd argue a "4" is gay too.

Similarly given that 1s and 2s cannot flourish, in the long run, in anything other than a heterosexual relationship, 1s and 2s are best understood not as "bis" but rather as "straights" who have experimented with, or who otherwise have the ability to enjoy homosexual acts. And you know what: that's how they, by in large, understand themselves (some of them, unfortunately, are confused or ashamed and disturbed by their experiences).

Being in the "gay and bisexual" community has an "identity" and, unfortunately, a "stigma" associated with that identity. Why would anyone who is fully attracted to the opposite sex, but only less than fully attracted to the same sex choose to "come out" and join the community and receive the stigma of being "bi"? Sure, with millions of people in the nation and billions in the world, a minute % of these people will join the gay or bi community, probably for political or ideological reasons. I think Kurt Cobain, at one point in his life, decided to label himself as "bisexual," yet didn't have much of a history of same-sex relations. Yet, like a lot of normal males (not that Kurt was "normal"), he might have experimented with and enjoyed same-sex behavior in his past. But surely men didn't "do it for him" as women did.

Two other relevant points:

1) There are probably a lot more 1s and 2s than most folks are aware of. First, as I've said, 1s and 2s, by in large, identify as "straight." And Second, when it comes to surveys, they -- especially males -- are likely to lie and never admit to their homosexual experiences.

I call this the "masturbation" effect. Males, who are past the age of puberty, and still in their virile years, when they aren't getting regular sex, masturbate universally. Yet, if you take an opinion pole asking "do you masturbate?" a huge % of those who do (which is practically everyone) won't admit to it. Now for a "straight" guy to admit to a homosexual act is going to be even harder than to admit to masturbation.

And part of the problem is if you admit to having same-sex experiences and actually enjoying them, many will automatically label you as "gay" or "bi"...even though for 1s and 2s to attempt to engage exclusively in same-sex relations, will lead to as much misery and feeling "trapped" as a gay man in a marriage with a female. By the by, I think that many gay men who marry and perform sexually with women are probably 4s or 5s. Most 6s can never bring themselves to sleep with a women. Just as most 0s could never bring themselves to have a voluntary homosexual experience.

2) Justin Katz, with whom I've discussed this theory, I think rightly observes that the more tolerant this society becomes, 1s and 2s, as a group, will have a greater number of homosexual experiences and do so more openly. The stigma against homosexuality may very well lead many 1s and 2s to have fewer, perhaps far fewer, same-sex relations.

Some gay scholars have pointed out that before "gay" was an identity, back when homosexuality "didn't dare speak its name," more homosexual acts occurred between "straights" and "gays." A "straight" guy, who was primarily attracted to women, could turn to gay sex for occasional release, and not have his identity as a "straight" guy threatened. As homosexuality has become more of an identity in more tolerant times, any voluntary homosexual act raises the inference of a "gay or bi" identity. And that's something that many 1s and 2s just don't want.

If I were to estimate what % of society were 1s and 2s in potential, if not in practice, I'd say, probably somewhere between 25-40%. Now for many, this may be only *potential,* that is they never act upon it. Or, they may have had a few same-sex experiences for a very brief time in their life, like during teenage or college years, but no more (and of course they admit these experiences to few if any people).

As I've written before, I think the gay or bi community is about 3% of the population. But these are folks with an orientation that is from 3-6 on the Kinsey scale. If we were to add in all of the 1s and 2s, because they are *some* type of bisexuals, then arguably we are dealing with 1/3 of the population.

But back to Katz's point: In the long run, a 1 or a 2 cannot flourish in any other relationship but a heterosexual one. There is no risk of them "going gay" from their experimentation, so I don't think his future premonition of more people openly experimenting with homosexuality is necessarily a bad one.

In Ancient Greece, where homosexual acts were almost universally practiced by male members of the citizen class, virtually all of them went off to marry children and sire families, and there is no evidence that real, constitutive homosexuals were any more prevalent in that society than they are here. The same is true of Sambia, Islam, prisons, navy boats, all-boys schools, or every other culture or sub-culture where homosexual experimentation is done far more commonly and openly (in Islam, and elsewhere, it's common, but obviously not open) than in general.

Lingering Effects of Communism:

In Germany.

Bizarre Book on George Washington's Faith:

This book on George Washington, publicized by Townhall.com, looks to be one of the more bizarre revisionist books to come out about him in a long time. Certain members of the Christian Right, most notoriously D. James Kennedy, falsely posit the notion that Washington was a fundamentalist Christian, when in reality he was a nominal Christian and a deist-unitarian who was intimately involved with the Freemasons.

I doubt even Kennedy, who thinks the Catholic Church teaches a false doctrine, could bring himself to endorse this book:

Did you know that a heavenly visitor visited George Washington during the darkest days of Valley Forge?

In Faith of Our Founding Father, Catholic author Janice T. Connell drops this bombshell, differentiating her biography of Washington from any other. While the otherworldly being never identified herself to the Father of our Country, Connell surmises that she was likely the Virgin Mary, and compares the apparition to other Marian sightings throughout history.

....

However, the mysterious visitor's predictions seem to lend credibility to the tale. The first prediction, that "three great perils will come upon the Republic," seems to point to the American Revolution (in progress as the encounter took place), the Civil War (which ended shortly before the publication of the story in 1880), and the current War on Terror.

The lady warned that "the most fearful is the third, but the whole world united shall not prevail" against America, and noted that evildoers would come from three other continents. Obviously, Islamic terrorists were not seen in the 1700s and 1800s as presenting a challenge more "fearful" than the horrors experienced in the Revolutionary and Civil Wars.

The first review on Amazon.com is that of Publisher's Weekly. And they get it exactly right:

According to most historians, Washington's religious beliefs were private, pragmatic, and-like those of many of his compatriots-deistic. He spoke often of providence but rarely of Jesus Christ, infrequently attended religious services and did not take communion. On his deathbed, he summoned no clergy. Connell does not argue with these assessments; indeed, she seems entirely unaware of them. Her George Washington is a devout, prayerful saint of unimpeachable moral virtue, called by God to establish freedom, patriotism and private enterprise. She devotes more than 20 pages to reproducing the Rules of Civility, maxims from 16th-century French Jesuits that the 13-year-old Washington copied as a school exercise. Another 20 pages are given to "Daily Sacrifice," a collection of prayers Washington is alleged to have copied or written at age 20. (Connell does not mention that these are not included in his official papers because scholars doubt their authenticity.) With previous bestsellers such as Meetings with Mary and Angel Power, it is not surprising that Connell gives credence to a story that began circulating some 60 years after Washington's death about a Marian apparition and prophetic vision at Valley Forge, or that she tells the popular but unlikely story about a Catholic priest coming to Washington's deathbed. When she is not rehashing pious legends, the author recounts familiar stories (many of which are not faith-related); inexplicably reproduces the entire Declaration of Independence, which Washington neither wrote nor signed; and loquaciously emotes about her hero, whom she calls "America's mystical icon of heroic grace."

Copyright 2003 Reed Business Information, Inc.

Most of the other reviews gave it one star. Why would Townhall push such obvious twaddle?

My Connection with the Schiavos:

I don't have anything to say about this sad situation. I'll just report that I do have a bit of a connection with the Schiavos. Okay it's a strained one: Terry and Michael met, apparently, when they were both students at Bucks County Community College, one of the colleges where I teach.

Michael grew up in Levittown, PA (the other Levittown -- the same houses), where I went to highschool and one of the towns bordering Yardley, where I grew up and now live.

I didn't know that:

Apparently my blog is worth $6,838.41. And it's available to trade!

Off to see Randy:

Going to see Randy Barnett speak at Robbie George's James Madison Program in American Ideals and Institutions at Princeton University (and next Friday's event on Locke also looks pretty tempting -- but I teach from 11:00am-1:00pm. Princeton is about 35 minutes away from where I live. But I've just got to see this part of the symposium: 1:45 pm - 3:15 pm: God and Equality in Locke, Jeremy Waldron, Columbia Law School, Michael Zuckert, University of Notre Dame. My class at Bucks County Community College lets out at 12:50; so I'll probably be driving straight from Newtown to Princeton, about 30 minutes).

Although I vehemently disagree with George on many social issues (after all, he did help to author the FMA), he is doing a great job with his program and deserves the $250,000 grant recently awarded to him.

But in fairness, see Andrew Sullivan's comments on some of George's positions. I agree with Sullivan. And Randy Barnett.

Update: The event was excellent as expected. Got Barnett to autograph my book. That was nice.

He's back:

Just want to let it be known that I am glad to see that Galois is back and I fervently endorse his blog!!!

Does Kurtz really believe this?

There are a lot of really stupid, fuzzy-headed ideas being floated around in academia, and Stanley Kurtz defends the validity of a one such "deconstructionist" argument, in attempting to prove the larger point that "if we allow for gay marriage, then we must, according to the same principles, allow for polygamy."

Perhaps there are convincing arguments to be made on behalf of polygamy (for instance, in my opinion the strongest is "if it's truly consensual, and truly adult, -- something that polygamy rarely is in the real world -- government has no business in regulating such voluntary arrangements) but you will find no convincing case here from Kurtz and his left-wing foil, Elizabeth F. Emens.

The reason why their case is so weak is because it attempts to make an equivalence between the "polygamous" orientation and the "homosexual" orientation. But in reality polygamy is not, nor is there any reason to believe that it will be primarily practiced by those who have a special "polygamous" orientation, as there is good reason to believe that almost all gay marriages will be composed of real homosexuals.

More deeply, Emens lays out a sophisticated case for treating polyamory not just as a practice, but as a disposition, broadly analogous to the disposition toward homosexuality. That, in turn, allows her to call a whole raft of laws into question — from marriage laws to partnership laws, to zoning laws, to custody laws. All these laws, says Emens, place unfair burdens on those with a "poly" disposition.

Polyamorists have long treated their inclination toward multi-partner sex as analogous to homosexuality. Polyamorists intentionally use phrases like "in the closet" and "coming out" to link their cause with the fight for gay marriage. What's new here is that a scholar has built this analogy to homosexuality into a systematic and sophisticated case.

Kurtz assumes that the existence of real homosexuals -- that is folks who truly cannot flourish or find their "better half" in anyone other than the same sex -- is an important part in the case for gay marriage. Well in order to make an equivalence between the case for gay marriage and for polygamy, he also has to find "real polygamists" as well, that is folks who cannot flourish in any other relationship than a bigamous one.

But aren't at least some people at one end of the sexual continuum intensely homosexual? Yes, says Emens, but the very same thing is true of polyamory. According to Emens, whether for biological or cultural reasons, some folks simply cannot live happily unless they are allowed multiple, simultaneous sexual partners. And for these people, our current system of marriage and family laws is every bit as unjust as it is for homosexuals. A person with an intensely polyamorous disposition simply cannot be happy, says Emens, outside of a polyamorous family setting. For these people, argues Emens, our social hostility to polyamory imposes a vast range of unjust legal burdens.

Just because someone argues that "these people exist and cannot be happy unless they live under such an arrangement" doesn't necessarily make it true. But even if they do exist, the cross-cultural history of the practice of polygamy tells us that they aren't the ones who are primarily motivated into the practice.

Experience with polygamy tells us that it's what we think of as "normal" men (well, the more dominant ones in any particular society) who are primarily attracted to the institution. And given that polygamy has been very very widely practiced, there is a lot of data to go by. Wherever practiced:

1) polygamy is almost (with some rare exceptions) always one man and many women and not the reverse;

2) the men who successfully practice it tend to be the "Alpha Males" in their culture -- however that culture defines Alpha Males. In our evolutionary state, it was the biggest, the physically strongest, and the most aggressive males. In present day America, arguably Bill Gates and Donald Trump are our "Alpha Males" (what would you expect in a nation that was founded as a "commercial republic"?);

3) the polygamists hoard the women to the exclusion of the lesser men, leaving large number of men without marriageable mates (and young unpartnered men often present serious problems for society);

4) and probably most important for this discussion, there is no "special polygamous orientation" that leads to the practice. Men as an entire group have this orientation -- it stems from the desire of a male to spread his seed farther and wider than lesser males. Richard Posner (mentioned in Kurtz's article) in Sex & Reason estimates that in our evolutionary state only 50% of the males actually mated, and they did so with the entire crop of fertile females.

These Alpha Males don't share; they hoard the women. And these men, in a civilized egalitarian society do by in large have the ability to flourish in monogamous relationships. Marriage isn't perfect. Many men, because of their nature will cheat (women cheat too, but that's usually because the men aren't fulfilling their emotional, as opposed to sexual needs). And many leave their wives as they get older for younger, more attractive women. But having a norm against polygamy prevents us from having Genghis Khans in our society (just look at how far and wide that uber-Alpha-Male spread his genes).

Steve Sailer is a conservative "realist" on gender issues. So maybe Kurtz will read this article which is consistent with everything I have written.

In it, Sailer writes:

In reality, however, polygamy victimizes men. You never hear about it because few men want to claim this particular kind of victimhood: that of the sexual rejectee....But who's missing from this picture? Isn't there somebody else affected? This reporter, like all I've seen since him, forgot the existence of the people who were most definitely damaged by polygamy: namely, the 149 guys who didn't get a wife at all because Mr. Marriage-Minded had married 150. I have been looking in vain for 20 years for an article about polygamy that mentioned that for one man to take a second wife means, in the normal course of things, that another man will get no wife at all.

Elsewhere I have written (after Jonathan Rauch):

Note that the grounds for prohibiting polygamy seem entirely different than the ones for prohibiting same-sex marriage. But the two are related in this sense: We outlaw polygamy for precisely the same policy reason why we would demand the recognition of gay marriage: the meaningful chance for any individual to marry a person they love. The gay man, like the single-unlucky male in a polygamous society cannot marry any person he loves.

Now some may respond, "but what if there is some small but significant % of the population -- say 3%, just like gays -- who truly do have a polygamous orientation?" I would reply, how would you guarantee that only they are the ones who take advantage of such an arrangement?* Human nature and cross cultural analysis of polygamy as practiced reveals that the majority of those who would take advantage of polygamy are men who have an otherwise normal orientation, desiring to spread their seed farther and wider than the rest.

Finally, this passage of Kurtz's reflects the views of someone living on another planet:

Another one of Emens's case studies is an example of Mormon polygamy that was written up in Redbook. This case is important because Emens uses it to develop a feminist argument for Mormon polygamy. According to Emens, classic one man/multi-woman polygamy is the perfect solution to the problems of the modern career woman. In classic monogamous marriages, women have no choice but to make painful compromises between love, work, and motherhood. But in a family with one husband and nine wives, eight of the wives can work full time, while the ninth stays home and does paid care for everyone else's children. Here Emens puts forward an argument against those who claim that Mormon-style polygamy oppresses women. (And don't miss the discussions of group sex in a couple of Emens's case studies.)

What woman, who are possessive and monogamous by nature, wants to share her husband with 10 other women? Moreover, as this post notes (written by someone who has seen it firsthand), in those Mormon communities where this is the norm, the women do not want this, they are coerced into polygamy as minors and then trapped there, and large numbers of men are in essence exiled from the community because they have no mates. How one could possibly hold this up as the "egalitarian" version of polygamy defies credulity.


*Anticipating someone asking me: How would you guarantee that only homosexuals take advantage of homosexual marriage? I cannot see anything other than a minuscule number of heterosexuals choosing to enter into "gay-marriage," and for some very strange reasons on their behalf. The point of this post is that a significant number of what we think of as "normal" heterosexual men -- indeed far more than those who have a real "polygamous" orientation, if such exists -- are likely opt for polygamy, which inevitably results in "lesser" men without mates.

Because you demanded it:

I've been getting a lot of requests to open up a "comments" section, so I did.

Previously I did not for three reasons:

1) An embarrassingly low number of comments;

2) Too many comments and too little time to respond;

3) The comment spammers. Now I'm not offended by mainstream pornography, and I'd be loathed to use organs of the state to punish anything other than child-pornography, but some of those porn comment spammers feature really bizarre stuff. Not that I've checked, but you need only look at the names of the titles that they leave. I think blogger might have a defense against comment spammers. Not sure.

Inconveniences in the "state of nature":

No I wasn't joking when I wrote this, but I'm surprised at the reaction.

Personally, I think one of the great inventions of Western society is the science that allows us to transcend nature. Up until recently virtually every couple knew what it was like to lose a child shortly after childbirth; now that's the exception, not the rule.

Isn't getting a bug, a germ and dying part of the natural process?

From talking to many women, childbirth itself is not too fun an experience; but it's simply part of reality. So if you want kids, you deal with it.

I look forward to the day when babies are born in artificial wombs because that's going to save the women of this world so much pain.

Social conservative Marty McKeever responded: "Please tell me you're joking." Then a socially liberal commenter concurred with Marty.

The first analogy that comes to mind is breast-feeding. Baby formula -- a scientific invention -- allows many women to escape what they would otherwise regard as a major inconvenience.

But there is a pretty big distinction between breast-feeding and child-birth: Child-birth is a much, much greater inconvenience.

Another commenter wrote:

What has changed is the power and efficiency with which we can manipulate nature. Which carries with it a correspondingly important responsibility to make prudent choices about which technologies to pursue, and how to use them once we have them (see, nuclear weapons). Your flippant attitude that effectively says, "hey, if we can do it, let's try it!" is the height of irresponsibility.

Yes we should try it. *Try* being the operative word. No one is preventing women from breast-feeding; nor should they. There could be major advantages for parents to grow their babies in artificial wombs. We wouldn't allow for it unless we knew the process to be safe. And in all likelihood, science will bring us to a point where artificial wombs are much safer for both the mother and the baby than natural childbirth.

And no one should force those parents who want to do it the "natural" way to use artificial wombs. Although one day, natural childbirth might be regarded as a much riskier thing to do. Women are still dying from complications in childbirth you know.

Of course there are consequences for human nature of which we should be aware.* But the Leon Kass-Francis Fukuyama, "just say no" attitude prevents us from fully realizing the benefits of technological progress.

I think Russell Kirk so perfectly exemplified this point of view that he was almost a parody of it. Wes McDonald, Kirk's biographer, stated that the three modern inventions that Kirk thought had the most pernicious effect on human society were 1) the automobile, 2) the telephone, and 3) the computer.

Kirk didn't even own a refrigerator for God's sake. The man literally wanted us to live as they did on Little House on the Prairie. Or maybe even that era was too technologically advanced for Kirk.

*To bring back a point Fukuyama makes; one of the effects on human nature from artificial childbirth may be a great reduction, perhaps the elimination of the homosexual orientation. Fukuyama and John Derbyshire, although not speaking in the context of artificial wombs, have noted that if homosexuality has biological origins and one day we figure out such biology, we will likewise be able to "cure" it by altering our human physiology. And if people are truly "born gay," then this cure will likely be given before the gay fetus is born. Fukuyama, it should be noted, unlike Derbyshire laments this possibility.

Some pretty credible science speculates that male homosexuality is caused (or a genetic predisposition is triggered) by a hormone imbalance, in-utero. All fetuses are default female. And an XY fetus is literally turned into a male or "masculinized" by being bombarded with hormones, in-utero. And this process is very delicate and hence prone to biological error. Homosexuality may be caused by such an error. If we grow babies in artificial wombs, science will certainly make sure that this hormonal process will occur without such "glitches" that are more likely to occur naturally.

The Problem with Ben Bateman's Reasoning:

On Dust in the Light, Ben Bateman writes:

See, this is all agonizingly clear for me because I'm a lawyer by trade. I write legal documents for a living. Legal documents are not tea leaves. They are not the entrails of sacrificed animals. They are expressions of somebody's intent. The reason that you create legal documents is to make your meaning clear and unambiguous. We sign written leases so that landlords won't have to argue with tenants about how much rent is due. That's the whole point! That's what it's all about! You write things down so that people won't come up later with nonsensical claims about what it is that you meant to say.

And earlier Ben wrote:

How Consitutional Law Could Me Save $992 a Month

For example, suppose that my office lease says that I must pay my landlord "$1000 per month." After studying the mental processes of eminent liberal jurists, maybe some month I should try paying only eight dollars. My landlord might object, of course. I'll be ready with brilliant legal insights gleaned from the majorities of Goodridge, Roper, and other recent cases.

"You may think that I have to pay you a thousand dollars every month," I'll explain to the landlord. "But you're just interpreting the lease at its surface level. We should consider how times have changed. We should consider the rent that other tenants pay in other buildings. And most importantly, we should consider alternate understandings of these words."

"For example," I'll go on, "you assume that '$1000' means a thousand dollars. But that's just one restrictive, decimo-centric way of reading it. I prefer to interpret it in a more modern binary mindset, where the number '1000' would be expressed in the old decimal system as '8'. So here's my check for eight dollars."

My landlord might sputter for a while and issue all sorts of threats and profanities. But his most interesting response would be to point out that he believed that '1000' meant a thousand, and had he known that it meant something else he wouldn't have signed the lease. "Too bad," I'll respond sympathetically while suppressing the triumphant sneer that half the US Sup Ct must struggle with daily. "You really should have chosen your words more carefully."

Is that how we should read constitutions, ResIpsa? The people vote on the words, and then the judges twist the words to mean something that the people obviously never intended?

The problem with Ben's reasoning is that legal documents are written with such specificity that often there is no wiggle room; because if you give wiggle room, someone will try to wiggle. And if they are successful, then the next time the document is drafted, it will be even more specific.

That's why his $1,000 example is so terribly flawed. No reasonable person could argue over the meaning of $1,000, just as no reasonable person could argue over the meaning of the Constitution that "[N]either shall any Person be eligible to that [the Executive] Office who shall not have attained to the Age of thirty five Years...."

The problem is that the phrases over which we argue are all written in broad generalities, and the Framers left behind no "book" of specific intent that tells us exactly how the norm is to be applied vis-a-vis every single thinkable specific factual scenario.

In European "civil code" nations, they attempt to do this with their legal codes and the result is hundreds of thousands of pages in civil codes. In common law nations like America our laws tend to be more general and we expect Courts to fill in the many of the specific gaps, with the result being hundreds of thousands of pages of appellate case law.

For instance I teach copyright law. There is an exception written into this democratically enacted federal copyright statute known as the "fair use" exception. In short, you can use someone else's copyrighted work as long as it qualifies as a "fair use." So what exactly does the statute say?

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work...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 a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the 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.

That's it. So answer me these questions: If I own a VCR, and I copy television shows, keeping in mind TV shows are copyrighted material and "copying" is one of the rights of copyright holders, is that a fair use (Supreme Court said yes). Or what if I want to copy an article from Time Magazine and distribute it to my students (the first time is most likely a fair use, but if you distribute the same article the next semester, it may not be. A court has never ruled, but copyright guidelines tell you to ask permission after the first time). Or what if I want to take excerpts from some books and turn them into a course-packet for my students (it depends, but in most circumstances, you'd have to secure permission and pay royalties, according to two federal court decisions, not the Supreme Court). Or what if I am a corporation like Texaco and I do scientific research. Can I just subscribe to one copy of each journal I want and let my scientists photocopy that one copy among themselves? (A federal court said no, each scientist had to buy their own copy of the same journal).

What's the point of all of this? We have a very general statute, and yet many specific-fact questions arise under that statute? Who fills in the gaps? Courts do (sometimes administrative agencies help them out. But even there many "originalists" question the constitutionality of such agencies). This is not to say that the courts just "make things up." No, the fair use test, even though it is written in a very broad manner, points us in certain directions with its four part test. But it hardly answers any specific questions. A lawyer drafting a contract wouldn't dare leave such gaps by writing in such general terms. She'd be sued for malpractice.

That Constitutions tend to be such relatively short documents, with many provisions written in broad generalities, like "cruel and unusual punishment," or "the freedom of speech," or "privileges or immunities" signifies a specific intent on the part of the Framers to construct a document with "built in flexibility" whose meaning could change over time.

Back to the $1,000 example. Here's a more reasonable one: Let's say a landowner rents out a huge parcel of land to a community for 200 years. The landowner is to charge the community a "reasonable" amount from year-to-year.

So 125 years later, what's a "reasonable" amount? That's what Constitutional interpretation is like.

Letter:

Reader Joe writes:

I generally enjoy your blog very much, and I hate to detract from the
important points you're making in the historical context post, but in the interest of accuracy, I want to point out that this:

"But slavery's immorality was only established or 'discovered' fairly recently in historical terms, before the Founding. From time immemorial till shortly before the Founding, slavery's moral legitimacy went unquestioned. So while our Founders knew it to be wrong, they had inherited an institution and had not yet found a way to end it. Even though many of them did want to end it and other Western nations (but no non-Western nations) were in the process of ending slavery in that relative time period (late 18th Century, but mostly early to mid 19th Century)."

really doesn't bear close examination. The moral legitimacy of slavery was questioned long, long before the Founders. As far back as the 5th century, Saint Patrick soundly condemned the institution, and it was legally abolished in Sweden in 1335 (although that law had its limits, in nature and in enforcement).

The tradition of abolitionism and moral objections to slavery was already of long standing, well-known, eloquent and public, at the time of the Founders. It's probably more ahistorical to ignore that tradition than it is to accuse the Founders of racism.

The post as a whole is too strong to let it get slippery on that point, and it's a point that tends to bug me--I've heard Columbus defended with a similar "he didn't know any better" argument, and that one, too, completely ignores the fact that many of his own contemporaries (Las Casas, notably), certainly did know better, and said so, loudly.

Sorry to nitpick, and I do recognize that your main point in that paragraph (and the post) was that the Founders were primarily and generally on the *right* side (or the "left" side?) of the slavery question (and other questions), even though they didn't completely outlaw the institution.

Anyhow...Keep up the good work!

I haven't had time to check up on his exact historical points, but will try to do so in the future. Any other readers have thoughts on the history of slavery in the West and the Founding?

Perfectly Put:

In the comments section for this post on In the Agora, Jason Kuznicki responds in a way too perfect to let sit there to a poster who argues that "The Bibe is the best guide that any society can have to establish law." So let's prominently feature the comment here.

Sirc,

It seems you're way out of your depth when you talk about the seventeenth and eighteenth centuries too. In fact, you don't even know your Bible.

The tradition of individual rights from which we now benefit is a creation--at the earliest--of the English Civil War, in which the major religious authorities generally preferred one form of despotism or another (though they did fight viciously to determine which kind it would be).

During that era, only a small minority of freethinkers gave newer, more liberal (!) interpretations to the Bible, allowing it to be read in the fashion that most people now do. The American founders drew heavily on this liberal religious tradition--but biblical exegesis has not always been this way. While the American founders were influenced by the Bible, it is a gross historical error to conclude that Biblical times enjoyed the same freedoms that the founders sought to enact.

For example, the quote on the liberty bell falls laughably short of establishing a system of government. It did no such thing in the Bible. Liberty in that context meant freedom from slavery--for some people. (The institution of slavery continued, however. And at no point did this verse grant individual rights of the type that we mean today.

To prove my point, consider the Bible itself.

Where within it can we find the principle of freedom of expression? You may find a sound bite here or there that seems a little bit like it, but the laws against blasphemy were rather strict during the entire span of the Bible's history--as Jesus Christ himself discovered.

How about freedom of religion? There's not even a trace to be found. Those who practice other religions are to be killed or made slaves, but preferably the first, so that they don't contaminate the chosen people.

Where, in this freedom-loving book, do we find the right to a trial by jury? Or freedom from unreasonable search? Or the right to bear arms? Where is there the idea of representative democracy? How about the idea that the people are sovereign?

What about abolition of slavery? The slavery practiced in the Bible may not have been so bad as most, but clearly slavery flourished throughout the Old and New Testaments (Paul even recommends that Christian slaves remain as slaves rather than rising up--a verse that the South later used to support chattel slavery in America).

How about women's rights? Women are systematically excluded from leadership roles in both testaments. They are treated as more unclean, as less objectively valuable than men, and as outright property in several instances. Perhaps a religion may do this if it likes--but a civil government may not.

There is only one place in the Bible where an explicit system of government is established, and this is the bloodthirsty theocracy found in the books of Deuteronomy, Leviticus, Kings, and Chronicles. (Judges is an interesting anomaly, though it's very vague about what sort of government actually existed.)

But I suppose so long as it says--in one single place--"Proclaim liberty throughout the land," that you may give whatever meaning you wish to this verse, strip it of all historical context, declare victory, and use the rest of your comment to repeat the tired old put-downs you heard on FreeRepublic.

Fine with me. It only demonstrates your near-perfect ignorance--even of the Bible that you claim to love. A more thoughtful Christian would concede that we've learned about freedom slowly, over time, and that most of our civil liberties can't be found in the Bible, a book whose main benefit lies within the soul of the believer--not as a manual for government. Even mainstream conservative Churches have come to this understanding (witness the Catholics, for one, who were understandably hostile toward democracy when the French Revolution came, but who have lately stood up to communism quite admirably and defended the cause of human freedom).

But your way is typical, I suppose, of an entire generation of politically-involved people in the United States, who have been raised to view Ann Coulter as the best of the right and Ted Rall as the best of the left. All it takes is a single sound bite to convince such people that their preferred beliefs were right all along; sustained, thoughtful analysis escapes them, and for them all nuance is a sign of pure weakness. For people like these, that a belief be steadfast is far more important than that it be well-considered or well-argued. And, although I do not say it lightly, this is the intellectual origin of fascism.

Politics now becomes an exercise in shouting and making up mean names (for which you can arguably find justifications in the Bible, provided that you go by the letter of the book, although it does seem rather contrary to the spirit). I will have none of it.

I may not be a Christian, but I am certainly a better Christian than this. Goodbye, Sirc. I no longer consider your deranged ravings to be worth my time.

Not my favorite rock band:

Styx. But I have to admit, I enjoyed the show that Dennis Deyoung (former lead singer) gave for PBS. He's such a geeky-middle-aged, white haired "Dad" looking kind of guy. But he's a fine musician and his voice sounded as good as it did when he was in his prime. Too many rockers -- because they tend to have little or no formal vocal training and because of years of touring and straining their voices -- don't sound the same as they get into their 40s and beyond. Some can get quite hoarse.

Groups like Boston, Toto, Journey, Styx: Bands that the critics panned (I think the style is referred to as "Album Oriented Rock" or maybe "Arena Rock") but they were composed of fine musicians -- literally some of the finest -- who wrote good songs (although not all of their stuff has been good -- of course I'd admit to that), and performed with a lot of passion (something that I think the singers on American Idol lack).

I don't include "Kansas" in that group, even though many people lump them into that genre. No, they are properly categorized as progressive rock with bands like Rush, Yes, Emerson, Lake and Palmer, and Genesis. Plus Steve Walsh in his prime was one of the greatest rock singers, bar none. From unique tone, to vocal chops, to passion and feel, he had it all. He's lost some of it, but still sounds pretty good. (And he's not a bad keyboardist either.)

Steve Hackett, former Genesis guitarist, once said that Steve Walsh possessed the "perfect, white rock voice."

Anyway, the highlight of the Deyoung concert was "Come Sail Away."

How the Hate America Lefties Made Larry Hate America:

There are some members of the social right who hate America as much as certain radical leftists and radical Muslims hate America.

From paleo-con Lawrence Auster:

There's a movement afoot by "transgendered" people to require that public restrooms be unisex, or "gender neutral," in order that transgendered people and transvestites will not feel out of place or endangered, as they say they now feel when using either a men's room or a women's room. The unisex restroom movement started of course in the elite colleges, but now it is spreading out to the whole society.

Radio host Bob Grant, in his depressed moments, says he's ready for an asteroid to come and destroy the earth. Can one disagree with him? And how, seeing how depraved our society is becoming, can we be shocked at Moslems wanting to kill us?

Maybe that last thought provides the key to the leftist agenda. Leftists want to make us so hateful to ourselves that we will no longer want to live or defend ourselves from our enemies. To put it another way, the left hates America. But they're aware that not everyone shares their hate for America. So, to complete their devilish project, they set about making America so hateful that everyone will hate her.

So Auster's pretty much admitting that he hates America, but blaming his hatred on leftists. Nice.

Gay Marriage and Gender Discrimination:

Once upon a time in Western Culture and America, women were seen to have no fit role in government, weren't allowed to vote, and were expected to stay home and raise children. A man's place was in the workplace as the sole provider of the family and the woman clearly had a subordinate role in society and the family; a wife was for all practical purposes the property of the husband. In Family Law in law school we learned that at Common Law, Blackstone's definition of marriage was that "husband and wife were one person and that the husband was that person."

Oh how have times changed. The notion of female equality is a Western invention. And it stems from the natural rights doctrine of equality. "All men are created equal," was once understood as meaning only white, Protestant men. But that understanding soon expanded to include all humans regardless of race, religion and gender.

Eugene Volokh notes how gay marriage is increasingly being argued for under the rubric of gender discrimination. If race and gender were perfect analogies then indeed, a ban on gay marriage would be gender discriminatory just as a ban on interracial marriage is racially discriminatory.

Clearly gender differences aren't perfectly analogous to racial ones (but then again, nothing is perfectly analogous to anything else. If two things were, then we would be dealing with duplicates. All analogies involve "apples to oranges" comparisons. We need to avoid comparing apples to typewriters).

I think from a philosophical perspective the natural equality of women does indeed cut against anti-homosexual arguments, especially those anti-homosexual arguments done under the rubric of "natural law" (And remember, not all theories of "natural law" are the same. For instance, one would have to strive mightily to connect Aquinas's-the Catholic Church's notion that masturbation is "unnatural" with the "laws of nature and nature's God" theory that underlies the Declaration of Independence).

For instance, the natural differences between (the so-called "complementarity" of ) the genders has oft-been used to attempt to prove something against homosexuality. As Harry Jaffa once said, "Of all the distinctions in nature from which morality can be inferred, nothing is more profound than the distinction between male and female, which runs not only for human nature but through all nature." Jaffa thinks gender differences are as profound (or profounder) as the natural distinction between man and beast on the one hand and man and God on the other. As I demonstrated in this post, this indisputably is a logical error. There may very well be some profundity to natural gender differences, but as a matter of biological and natural fact, they are not nearly as profound as the differences between man and beast or man and God.

Whatever their natural or biological differences, from a legal and social perspective, gender distinctions in the modern era are associated with a high degree of arbitrariness. Racial differences are properly viewed as wholly arbitrary. Species distinctions are properly (in my, but not Pete Singer's, opinion) viewed as wholly non-arbitrary to the point where we may legally slaughter, enslave, and eat animals (but doing so to humans is viewed as genocide, slavery, and cannibalism). Gender distinctions are viewed as presumptively arbitrary and are thus much closer to racial distinctions than to man-beast distinctions.

If Jaffa is right, then something is drastically wrong with how we view gender in this society. And the problem is not just with radical feminists and Leftists, it's with things accepted by mainstream thought: Women being accepted in the workplace, being allowed to vote, hold public office; these are part of this "new" understanding of gender as something that is properly viewed legally and socially arbitrary. Are those people who would argue for "traditional" gender roles willing to argue for the way things used to be when gender distinctions were socially and legally more profound: denying women the right to vote, to work outside of the home, to maintain an equal place in the family with the husband...? Would they argue for the repeal of 1) the 19th Amendment, 2) the category of "gender" in all civil rights related legislation, and 3) Supreme Court decisions holding that government "gender distinctions" must receive "intermediate" scrutiny? If gender differences were as profound from a natural, biological, social and legal perspective, they would. Or else they would argue for some other drastic changes along these lines.

DBV BlogMeme:

1) You're stuck inside Fahrenheit 451, which book do you want to be?

Justice League of America/ Avengers Series. (Well, four books, but it is collected in one fancy book here).

2) Have you ever had a crush on a fictional character?

Yes

3) The last book you bought is:

The Bill of Rights, by Akhil Amar

4) The last book you read:

Justice League of America, Classified, #4

5) What are you currently reading?

1) The Bill of Rights, by Amar; 2) Novus Ordo Seculorum, by Forrest McDonald; 3) The Kree-Skrull War -- by Roy Thomas and Neal Adams.

6) Five Books you would take to deserted island:

1) War and Peace, by Tolstoy, 2) Ulysses, by Joyce 3) Paradise Lost, Milton [those three, which I've never read, just to give me something to do for the rest of the time] 4) This book, (and if I also get to take my guitar) 5) Ozzy Osbourne/Randy Rhoads Tribute sheet music book, so I can finally learn all of Randy's guitar licks.

6) Who are you going to pass this stick to (3 persons) and why?

Is this like a chain letter-pyramid scheme? I'll pass it to Timothy Sandefur, Ed Brayton, and Jason Kuznicki because they are my blog-buddies. Who knows if they will participate.

Historical Context & the Founding:

I think we need to keep historical context in mind when trying to better understand political and moral issues.

The phenomenon of historicism -- judging people and places not through present or timeless moral standards, but rather in strict historical isolation of that particular place and time in question -- sometimes confuses more than it enlightens. And plucking from historical context to argue for or against a particular agenda often results in a distortion or abuse of history.

The Left and the Right engage in both historicism and out of context citations of historical matters when it fits their respective agendas.

Take the Founding, for instance. Social conservatives often isolate the beliefs and practices -- the "original intent," if you will -- of the People in the late 18th Century in order to win arguments over the proper interpretation of the Constitution, or to otherwise shed light on what exactly it is that Founds America.

If you look at the role that religion played in American public life, what the Founders permitted in practice was a far cry from the ideal "Separation of Church & State" that the ACLU desires.

Moreover, they were a lot tougher on crime -- the common law penalty for all Felonies generally was execution, and the punishments were meted out within days. Prisons were a novel invention around the time of the Founding. Franklin enthusiastically supported them. Before prisons, you were either executed or if not a felony, then fined, whipped, or put into the stockades.

And the Founders certainly didn't tolerate public indecency as we would understand it -- Jerry Springers and Howard Sterns (although privately, many were probably kinky -- perhaps Jefferson and Paine, most definitely Franklin). "Sodomy" was universally a felony (although "homosexuals" as a constitutive class of people were unknown).

Okay, score some points for the social cons there.

But then again, plucking from historical context and comparing then to now, we might rightly conclude that our Founders tolerated monstrous evil far worse than we do today, that their participation in grossly inhumane institutions -- slavery being the worst, but other things as well, like dueling, tarring & feathering, and other forms of barbaric punishments, treating women as property of their husbands -- made them such morally flawed individuals that we can't seriously use them as any kind of moral guidepost against which we would judge our present day actions. George Washington was a man who exhibited more public dignity than Jerry Springer. True, Springer terribly exploits members of the Black Underclass. But at least he never owned blacks as slaves and George Washington did.

Aha, and there is where social conservatives start to make historically relativistic arguments (even though historicism is something generally associated with the Left): Don't judge the Founders according to our present moral standards.

And I agree with these conservatives on this point: I don't agree with "debunking" the founding as racist, sexist, classist, slavery evil. We do have to put things in context. Slavery was an institution that was universally, Cross-Culturally Practiced, for as long as time could record. It is the second oldest institution, right behind the family. Slavery was an unquestioned natural fact of life. You can't blame people for doing wrong if they didn't know what they were doing was wrong.

Now is it true that the founders didn't know slavery was wrong? No, many knew it to be wrong. But slavery's immorality was only established or "discovered" fairly recently in historical terms, before the Founding. From time immemorial till shortly before the Founding, slavery's moral legitimacy went unquestioned. So while our Founders knew it to be wrong, they had inherited an institution and had not yet found a way to end it. Even though many of them did want to end it and other Western nations (but no non-Western nations) were in the process of ending slavery in that relative time period (late 18th Century, but mostly early to mid 19th Century).

So we founded a nation that at once permitted slavery but nonetheless rested our public principles on a "natural rights" foundation that denied the moral legitimacy of the practice: "All men are created equal." Our natural rights understanding led to restrictions on slavery (even where it was permitted), the abolishing of the slave trade, and eventually a bloody-civil war that put an end to legal slavery in Western Civilization once and for all.

So if rather than plucking from context, we look at where the Founders were coming from and in which direction they were moving, our Founders practically looked like progressive liberals, for their time (at least, a great deal of them did).

But here's the problem for social conservatives: The Founders -- especially those idealist, philosophically-minded (natural rights) ones -- practically looked like progressive liberals on a whole host of other issues as well, viewed in historical context. Take Religion -- plucked from context, and looking at what the Founders permitted (as I understand, even Jefferson and Madison used public Federal grounds for Church Ceremonies) it appears that most Founders would disagree with the ACLU's application of their principles. Yet, put into historical context...the same natural rights principles that put an end to slavery also resulted in the greatest disempowerment of religion from government (or "Separation of Church and State") that the Western World has ever seen.

Under the Old order, the Churches were the State and vice versa. Religious orthodoxy was enforced through public law. And it's true that while our Constitution of 1789 permitted states to retain their Establishments, just as it permitted states to practice slavery, by 1833 the last state Establishment was ended in Massachusetts. That was 32 years before slavery was ended, and we didn't need a civil war to fully disestablish religion in America, Thank God.

The same Natural Rights ideals that put an end to slavery also demanded that the religion of "the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination" be put on an equal legal footing with one another (and obviously, having a legal establishment of religion and living up to that ideal was impossible). Now that was a truly radically progressive sentiment for the time. And in some ways, even for today. But it represented the Madisonian-Jeffersonian natural rights ideal. In short, it represented the Declaration of Independence, properly understood.

Even John Adams, thought to be more socially conservative than Jefferson and Madison, was deeply suspicious of Calvinistic-organized Christianity. You'd have to look at his private correspondence in order to learn this. But that's only because the Churches -- even though History was not on their side -- still possessed a great deal of at least social, if not legal influence. Adams as a Unitarian disbelieved in the Trinity. Yet he didn't go around publicly bashing that doctrine because he could find himself in a whole heap of Trouble were he to do so. Thomas Paine did publicly take shots at Religious Sacred Cows and paid a great price for it, dying a pauper. Even in the one letter to Thomas Jefferson where Adams lets Jefferson know why he disbelieved in the Trinity, the context of that letter was that it was 1813 and Britain had just decriminalized their law making it a crime to publicly deny the Trinity! That alone should tell us much about the theocratic point in time they were coming out of and in which direction our Founders were moving.

How to properly understand the Founding does indeed depend on how we look at it and in what context. But if we look at the Founding, idealistically and in which direction History was progressing, social conservatives are bound to be disappointed (just as social liberals are bound to be disappointed by the practices and understanding of public morality common at the time of the Founding).

Harry Jaffa famously said that America ought to be understood according to its ideals, not its compromises with its ideals. Jaffa is a social conservative and not every social conservative -- wisely enough (for their agenda) -- endorses Jaffa's sentiment. Robert Locke hits the nail on the head as to why they ought not do so.

To argue that the essence of the Constitution lies in "the ideals of the Constitution, not its compromises," as Straussian scholar Henry [sic] Jaffa has done, is precisely the opposite of the truth. The compromises are of the essence of the thing, and these compromises deliberately and ruthlessly subvert attempts to abstract "propositions" out of it. The founders were perfectly well aware of the trouble abstract ideology can cause: in the 18th century, it produced the French Revolution; in the 20th, judicial activism.

But in this article Locke also freely admits, even embraces the "Truth" that many social conservatives shy away from:

Crucial facts about what America was founded on are deliberately hushed up by both liberals and conservatives and admitted only by the non-respectable Left and the non-respectable Right. Namely, that this country was founded upon conquest, slavery, sexism, and class rule. The Constitution, as originally written, holds that our ownership of this land by conquest is just, that Indians are savages, that blacks may be enslaved, that women have no fit role in government, and that the (little-remembered) restriction of suffrage to men of property by state governments is valid.

Francis Fukuyama probably fits somewhere between Locke and Jaffa:

Now, by the French Revolution, we don't mean just the limited historical event; what we mean is the emergence of what we understand as modern liberal democracy because in the French Revolution, ultimately what it was about was a revolution in favor of the principles of liberty and equality. Now you could substitute the American Revolution for that because, I think in that kind of ideological sense, those two revolutions were equivalent. I mean, they were both revolutions to create what I earlier defined as a liberal democracy as a political system based on popular sovereignty with guarantees of individual rights.

In other words, ideals of liberty and equality abstracted from the Founding can get us out of slavery, giving us an anti-slavery Founding; but these ideals just as easily could give us the French Revolution and the so-called Judicial Activism of the modern era.

Hey, Religion can be Fun:

How 'bout a Fresca?

From Danny Noonan of Bushwood. Link to a fun fundamentalist comic. He also links to Mike Seaver's website. And let me say that I've watched some of "The Way of the Master" show on TBN. What a hoot! I loved their episode where they attempted to "debunk" evolution.

Noonan notes how Seaver (I refuse to call him anything else and were I to meet him face-to-face would refer to him as "Mike") has lost his mind. From what I know his mind was lost through most of Growing Pains . He got his on screen love interest fired because she had posed in Playboy (hurt his good Christian "image" to play along side her) and refused to do plotlines that didn't have Mike Seaver setting a good "moral" example.

That infuriated the producers because the show as originally conceived had Mike Seaver being sort of a screw up. The last straw was when he got on the phone to some big-wigs at ABC and accused them of being "pornographers." The show was canned and his career hasn't been the same since!

Jaffa v. Graglia & Bork:

For those who have time, you may want to check out this interesting past debate from National Review that is accessible online. It has some really enlightening and amusing moments.

It all started when Harry Jaffa, in his book, Original Intent and the Framers of the Constitution: A Disputed Question, trashed Robert Bork's and William Rehnquist's jurisprudence as "phony originalism."

So Bork responded in a review of Jaffa's book in National Review:

Written in dyspeptic prose, Original Intent and the Framers of the Constitution is one of the least coherent, least consequential, and most disingenuous pieces of constitutional theorizing on record: incoherent because Mr. Jaffa offers conclusions that cannot possibly be tortured out of constitutional text, history, or structure; inconsequential because, so far as is apparent, his argument has application only to one pre-Civil War case; disingenuous because he misrepresents not only that case but the Constitution itself. This may sound unduly harsh. I have tried to show that it is only duly harsh.

Later, National Review gave Jaffa equal time to respond, where he wrote:

The natural-rights theory enables us to distinguish the principles of the Constitution from the compromises of the Constitution. In Original Intent and the Framers of the Constitution I have tried to show how understanding this distinction in Dred Scott unravels many of the mysteries surrounding the equal-protection clause of the Fourteenth Amendment today. Judge Bork, as a legal positivist, is no more able than Calhoun to distinguish the Constitution's principles from its compromises. Judge Bork tries to draw Lincoln's conclusion--plenary congressional power over property rights in the territories--from Calhoun's premises. But such plenary power can be inferred only from the doctrine of natural rights. Calhoun, and Taney, reached their conclusions only by severing the doctrine of states' rights--and hence of constitutional power--from its original foundation in natural rights. Judge Bork has done the same.

O.K., Judge, the ball is in your court ! Harry V. Jaffa

To which Bork replied:

Not really. After Professor Jaffa's latest effort, the ball has disappeared over the fence and is lying in the weeds, far from any court. Rarely has historical learning been deployed to so little effect. I am pleased Professor Jaffa has quoted my assessment of his book as "incoherent, inconsequential, and disingenuous." It cannot be said too often.

....It is time to bring this bootless discussion to a close. In doing so, I would remind Professor Jaffa that the first discussant to resort to the ad hominem, which is his standard style of argument, has no standing to complain if he is treated severely in return.

Shortly thereafter, Jaffa goes round II v. Lino Graglia. Graglia begins:

HARRY Jaffa has long engaged in a campaign of vilification against Robert Bork and William Rehnquist, a campaign I consider both sad and shabby. It is sad because he is attacking people who are on my and, he says, his side on the basic issue of constitutional law -- the issue of the proper role of the Supreme Court in our system of government. One must expect attacks on Bork and Rehnquist from Ronald Dworkin, Bruce Ackerman, and Larry Tribe, and one can derive satisfaction from refuting them. But Jaffa is a hard-core political conservative; he was an advisor to Senator Barry Goldwater at a time when the name Goldwater was a liberal epithet. Indeed, he claims to be responsible for the famous slogan about extremism in defense of liberty being no vice, a stroke of genius that surely cost Goldwater whatever slim chance he ever had of winning the election. More important for present purposes, he is also, he tells us, a staunch foe of the judicial activism that has served to make the Supreme Court the enacting arm of the ACLU's political agenda.

If Jaffa is opposed to judicial activism, why does he devote his time and energy to reviling its two most prominent and effective opponents in the past half-century -- excepting possibly only Learned Hand and the newer arrivals, Justices Scalia and Thomas? How is the public interest served by that? And reviled them he has. His campaign against them has been shabby because he has attacked them not as a friendly critic or a disinterested scholar but personally, bitterly, and arrogantly. He has written that Bork "no doubt in his own mind . . . has taken on something of the status of a martyred saint of conservatism," a statement for which he has not the slightest basis.

Graglia hones in on what his (and Bork's) real problem with natural law is:

The last thing an opponent of judicial activism should want, I would think, is to authorize a Brennan, Douglas, or Blackmun to determine the content of "certain unalienable rights." Of course, the Justices have already undertaken to do this on their own, discovering such new "fundamental" constitutional rights as a right of "privacy," which somehow includes a right to an abortion.

THAT incorporating the Declaration and therefore "natural law" into the Constitution is a formula for judicial activism seems so clear to me that I have trouble understanding how it can be less than clear to anyone else.

Jaffa responds:

While I may agree with what Bork or Rehnquist says (or decides) concerning particular cases, I do not believe that legal positivism, grounded in moral relativism and philosophical nihilism, can effectively counteract that very same legal positivism when it appears in the form of liberal judicial activism. Alienation from the genuine principles of the American Founding, whether by those calling themselves conservatives or by those calling themselves liberals, can undermine fatally, not only constitutional law, but the loyalty and conviction of the citizens themselves, upon which everything else depends.

It should be noted that Justice Thomas has endorsed Jaffa's, not Bork's or Graglia's version of originalism.

The Death Penalty Case and Originalism:

The recent Supreme Court case holding executions of those under the age of 18 to be "Cruel and Unusual Punishment" has sparked a round of blogsphere debates on "originalism" and proper jurisprudence. Especially interesting is this debate between Feddie of Southern Appeal and Publius of Law and Politics.

My jurisprudence is probably somewhere between the two of theirs. Feddie endorses "originalism" or "original intent"; Publius calls himself a "non-original Textualist." I consider myself to be both an originalist and a textualist. Yet, I also believe that because certain parts of our Constitution were deliberately written in broad generalities, our Founders purposefully built flexibility into the document and intended it to be interpreted through the lens of law and life as understood by the present generations facing the particular case in controversy in question. I know my position generally isn't associated with "originalism," but I don't see any evidence that our founders desired us to impute 18th Century sociology, complete with all of its prejudices, when applying a broad and general provision of the Constitution to a specific present day, factual circumstance. I call myself an "originalist" because, for reasons I will explain, I think our Founders did not specifically intend us to be "time-bound" by 18th Century historical context.

Let me anticipate a few of Feddie's responses. Let me quote what he has written responding to similar points:

1) If the men who wrote and ratified the Constitution did so...with the understanding that the fundamental meaning of the document's text would evolve over time, then why all the fuss? Why spend all of that precious time debating the meaning of the words to be used in the Constitution if the framers' understanding of those words made no real difference?

A few things. First of all: many of us are not arguing that the words "made no real difference." If someone does argue this -- for instance, I can imagine some deconstructionist, Foucault-inspired critical legal theorist believing that words mean nothing and make no real difference -- I would vehemently dissent. In fact, the words of the Constitution do have objective and timeless meanings that do not change with the time. Publius makes a similar point, that, as "textualists," we all should agree that every word of the Constitution means something. And any interpretation that seeks to "cut out" parts of the Constitution on the grounds that "words have no meaning" so we can do what we want, ipso facto is a bad result. (And BTW: Robert Bork himself has tried to cut out parts of the Constitution -- the 9th Amendment and the "privileges or immunities clause" of the 14th -- on the grounds that they are meaningless "inkblots.")

The Founders made certain parts of the Constitution so specific that no reasonable person could argue over its meaning: "[N]either shall any Person be eligible to that [the Executive] Office who shall not have attained to the Age of thirty five Years...." But they also left some parts deliberately broad and general: "nor cruel and unusual punishment inflicted." And other provisions somewhere in between. It's those broad and general phrases like "cruel and unusual punishment" over which we argue. So why would the Founders intend the meaning to be open to change over time if they spent so much time tweaking the exact language? Very easy answer: The Founders intended the Constitution to last for a long time and thank goodness, it has. It the Founders wrote a Constitution with every jot and tiddle as specifically ascertainable in its meaning as the "35-year-old" executive provision, the document would fast become obsolescent.

Indeed, the brilliance of our Founders was in choosing the exact language of the Constitution, making certain parts very specific, certain parts general and flexible in meaning, and finding the right balance between the general and the specific that has made this document the longest lasting Constitution in the world! Our Founders didn't want us constantly Amending the document either; that's why they made it so cumbersome to do so. By deliberately building flexibility into parts of the Constitution, they ingeniously ensured us a document that wouldn't be thrown out because it became outmoded.

I think our founders knew that certain principles -- liberty, equality, property, commerce, conscience -- were indeed, "timeless," "objective," and hence "unalienable." But if they attempted to tell generations hundreds of years later how liberty, equality and conscience, etc., must be understood in their time...I think our Founders wisely realized that they didn't possess the information to "best" answer these specific questions. Hence, they left it up to future generations to answer them by writing such provisions of the Constitution in broad generalities.

Another problem of Feddie's is that many decisions with which he would disagree are supported by the Constitution's text. Not only are they supported by the Constitution's text, but as I will demonstrate, Feddie's version of "originalism" actually is oft-used to subvert the text of the Constitution -- making us so-called, "activists" more consistent textualists than the so called "original-intent" folks, ala Bork.

For instance, Feddie writes:

[N]o matter what the Supremes say the founders clearly did not believe that pornography (or the like) was First Amendment "speech." That's not even a close call.

Well let's look at what the text of the First Amendment says: "Congress shall make no law...abridging the freedom of speech." Assuming arguendo that we are not debating which governments, i.e., "Congress" or state and local, are bound to this norm, let us ask textually what exactly the rule is saying? How about: "government can't censor." Can't censor what? "Speech." What is speech and why isn't pornography speech? Is it because speech is words and pornography is pictures? So government can censor any pictures, including political cartoons and moving pictures like Fox News? No I think Feddie would agree that speech includes both words and pictures. So if speech = words and pictures. And if pornography = words and pictures. And if the First Amendment is telling us that government can't government can't censor words and pictures, then the First Amendment seems to be saying that government can't censor pornography. Simple logic, right?

Now when Feddie says that pornography is not "First Amendment speech," I wonder where he derives such an answer because it's certainly not found within the text of the Constitution. When asked whether government can censor pornographic speech, I consistently follow the text of the Constitution and say no, whereas Feddie argues that the text of the Constitution doesn't mean what it says it means, that yes, in reality, even though the text seems to say, "government can't censor," government, in reality, can censor. Huh?

Occam's Razor Fails Again:

It's funny. When I wrote my first post on this topic, I immediately thought of this possibility, but for some reason didn't include it.

As it turns out, it looks like Matt Hale & Company had nothing to do with the murder of the family of Judge Lefkow.

Discussion on Gay Marriage & Polygamy:

I'm glad my post on gay marriage and polygamy generated so much discussion among Timothy Sandefur, Ed Brayton, Jason Kuznicki, and Kip Esquire (also known as the top four bloggers of the world...well, the best four bloggers who regularly read my blog!)

I don't have time to address all the issues, but I must say that I'm a little taken aback by Ed Brayton's dismissive attitude towards my rationale; he doesn't even examine my underlying premise. But it's a premise that needs to be examined.

Throughout human history, polygamy has been very common and everywhere tried yields the same results: One man, many women marriages and large numbers of single males with no marriageable mates.

Now there are two responses that could be made in reaction to this historical reality: One, the liberty right of consenting adults to enter into whatever marital arrangements they choose, as long as they are truly consensual and adult, trumps whatever risk there might be of men hoarding women to the exclusion of lesser men. Liberty of contract is good in and of itself and tampering with it only makes things worse. An analogy: We know that respecting liberty of contract and property rights also leads to small percentages of individuals owning disproportionate amounts of wealth; but that's okay, because it's better than any alternatives. Equality trumping liberty makes things worse: see the past horrors of communism and failures of Marxism.

Fair enough. I anticipated this in my original post when I wrote,

I don't argue that ultimately we, as a society, must outlaw polygamy. It could be that competing principles, for instance the freedom and right of consenting adult individuals to enter into contractual relationships, ultimately trumps the arguments against polygamy.

The second response is that polygamy as it historically has existed (where the Alpha males horde the women to the exclusion of the lesser males) is neither consensual nor adult. To take the traditional Mormon example to which Kuznicki linked, "Anyone who has grown up around polygamist groups recognizes certain dynamics of that culture: notably that women are fully subordinate to men, and the idea of equality between the sexes is laughable."

So what if we allowed for polygamy only where it were truly consensual and adult? How many women, whom we know to be monogamous and possessive by nature, would truly want to share their men with other women in a marriage? In this world, polygamy would probably exist only in the margins of society and wouldn't otherwise upset the norm: the overwhelming number of marriages would be one man, one women with a small sprinkling of gay and polygamous marriages existing in the margins.

Perhaps. But, as with gay marriage, this "new polygamy" has never been tried; it is as novel as gay marriage. We should all agree we don't want "normal, historical" polygamy, because everywhere it existed or exists leaves large numbers of single men without mates to marry and doesn't respect the true desires of women.

Question: What if, because of overwhelming drives in human nature, the new polygamy, put into practice in a system that does its best to ensure that it is consensual and adult, looks a lot like the "old polygamy"? What if, in this world, the Donald Trumps and Bill Gates of the world end up with hundreds of wives to the exclusion of "lesser" men? Would this still be okay?

Play it again Gary:

Here is an old post of mine, to which I refer new readers.

If you have the time or interest I recommend at least skimming, (I doubt you'll have time to get through the whole thing) this e-book by Gary North, the subject of my above post.

North is a Christian Reconstructionist who would, in an ideal world, like to see Biblical Law in its entirety made into the civil law, complete with all of the Old Testament punishments. Strangely enough, he associates with libertarians and they, with him.

North's book is interesting because he operates in the tradition of, (and hence reminds us of) that branch of Trinitarian Christianity that opposed the Constitution because of what they saw as its Godlessness and Secularism.

Many on the religious right have tried to co-opt the Constitution as a "Biblical" document -- very strange in that the document not only doesn't mention God, but only speaks about religion in a negative or prohibitory sense.

Many of the state constitutions on the other hand, explicitly made covenants with the Trinitarian Christian God. The federal constitution, by contrast, prohibits all religious tests for public office. Prominent fundamentalist back in the day recognized this and thundered that we would face God's wrath for passing such a "Godless" document which failed to invoke the Almighty.

North argues that the Constitution was a product of the Newtonian-unitarianism philosophy and attempted to and ultimately succeeded in overthrowing the state system of Trinitarian covenants, which explicitly required religious tests excluding all non-Trinitarian Christians. The US Constitution would have been an orthodox Christian document, according to North, if instead of prohibiting religious tests, it too covenanted with the Trinitarian-Christian God and imposed such a religious test for public office.

Here is the dedication of North's book:

This book is dedicated to the members, living and dead, of the Reformed Presbyterian Church of North America (Covenanters), who for over two hundred years have smelled a rat in Philadelphia.

LOL. Funny. As I note in my original post, although he makes some good points and yokes impressive scholarship, he ultimately comes off as an anti-Masonic crackpot.

North's thesis importantly stresses that often there is a disconnect between what the intellectual elites and the common masses believe. While Trinitarian orthodox Christianity no doubt was the common sentiment among the populace, our Founders disproportionately believed in a deistic-unitarian philosophy (and most deist-unitarians were members of Christian Churches).

For instance -- take Washington, Adams, Jefferson, Madison, and Franklin. Now these are just five men; they aren't the entire "Founders." But these were some pretty damn important founders: They comprise the first 4 presidents, the drafter of the Declaration of Independence, a majority of the drafting board of the Declaration (Jefferson, Adams, and Franklin), and the architect of the Constitution (Madison). All of these men certainly followed the deistic-unitarian philosophy (also called theistic rationalism) to which I refer.

North's point was that our founders secretly and unbeknownst to the general population helped to put a plan into motion -- a Newtonian Enlightenment plan -- that radically broke with the Trinitarian Christian ethos of the day. More reputable scholars have in fact, made similar points. I'm thinking of the Straussians, many of whom, North quotes to make his point -- that America was founded as the "vanguard of modernity." For instance, Michael Zuckert, one of the most distinguished scholars of Locke argues, after Leo Strauss, that [quoting Thomas West discussing Zuckert]:

the Founders were..."victims of bait-and-switch marketing." Zuckert means that the Founders were dupes of a radically modern project in which Locke, along with Machiavelli, Bacon, Hobbes, and others, succeeded in overthrowing the classical understanding of man as a being whose perfection and happiness can only be found in moral and intellectual virtue.

Similarly, Thomas West in reviewing Allan Bloom's The Closing of the American Mind notes:

As for politics, says Bloom, America was founded on modern principles of liberty and equality that we got from Hobbes and Locke. Liberty turned out to mean freedom from all self-restraint, and equality turned out to mean the destruction of all differences of rank and even of nature. Our Founders may have acted, or have pretended to act, "with a firm reliance on divine providence" (Declaration of Independence) but their natural-rights philosophy, says Bloom, came from the atheists Hobbes and Locke. (Bloom hedges on whether the Founders were self-conscious atheists or merely the dupes of clever and lying philosophers.)

North argues that the founders knew what they were doing, and that it was the Christian population who were the dupes.

Personally, I don't think anyone was duped. Many dissident evangelical Christians signed onto the natural rights regime of freedom and equality because they knew that it benefited them, protected them against their majoritarian persecutors. True, they did not appreciate how the principles of liberty and equality would grow or evolve into the 21st Century. But it's doubtful that any ordinary folks were thinking that far into the future back then.

Polygamy operating in the real world:

Thanks to Jason at Positive Liberty for the generous discussion of my post on polygamy and same-sex marriage. It's important that those who support same-sex marriage understand how to counter the notion that there is no way to distinguish between allowing for one and not the other on anything other than arbitrary grounds. The money quote from my original post:

We outlaw polygamy for precisely the same policy reason why we would demand the recognition of gay marriage: the meaningful chance for any individual to marry a person they love. The gay man, like the single-unlucky male in a polygamous society cannot marry any person he loves.

Then Jason cites a passage from a blogger with real world experience in a polygamous environment where he informs us that polygamy, as practiced, is hardly consensual or adult (and thus doesn't fall into the rubric of "let consenting adults do what they wish").

Correction:

It appears that I, and a whole lot of other people were wrong. This most likely was not a hate crime. Occam's Razor sometimes doesn't work.

There you go again....

WorldNutDaily has a news article entitled, Study Finds Disproportionate Abuse by "Gays", and when I clicked on it to read further, I found out that the study was conducted by...(drumroll), yes one Paul Cameron. Cameron is a gay-hating fraud who has been expelled from numerous professional associations for his shoddy work.

He's been pushing this 1/3 of abuse of children is by "gays" canard for years. He's a complete fraud and a phony. It figures that WND, who are shucking a book that argues that the Pyramids in Egypt were built by the half-human-half-demon Nephilim, would push Cameron's fraudulence.

Seamus Farrow:

I saw some interesting news reports on Mia Farrow and Woody Allen's only biological child, Seamus Farrow (okay, I admit, it was on ET Tonight). Lucky for him, he inherited the best of both parents' attributes. He's got his father's brains (not that Ms. Farrow is unintelligent, but Woody Allen is a genius and Seamus graduated highschool at 11, college at 15, and entered Yale Law School at 16; he's now 17) and his mother's face. And when I say he's got his mother's face, I mean, he's really got his mother's face.

He also seems to have inherited his mother's moral sensibilities as well (or let us hope that he has).

The Ten Commandments and the Public Law:

I just found another article -- this one written by Marci Hamilton -- that devastatingly refutes the absurd notion that the Ten Commandments are *the* foundational source of American law.

Didn't know that:

One of the attorney's for Liberty Counsel, Erik Stanley, was in my Religious Rights Constitutional Law class. I never really got to know him, but he seemed like a nice enough guy.

We are on different sides on these cultural issues -- but I sensed that we both seemed to be more than a little annoyed by the rigid PC intellectual conformity at Temple Law.

That class was taught by Stephen Mikochik, a devout Catholic and one of the few conservatives at Temple Law. The other conservatives (of which I am aware) are Jan Ting, (my Immigration Law Professor) now a media personality, and a self proclaimed "moderate" and David Post (of the Volokh Conspiracy, and one of the nation's Cyberlaw experts -- also happened to be my Intellectual Property professor) who is libertarian.

As far as I remember, the rest of the full timers were hard-Lefties.

Just a little anecdote re: how bad -- one sided -- University atmospheres can be. Professor Mikochik is blind. One smart-ass student in that class used to hold conversations across the room, via signs written on paper, with a friend. One day he held up a sign, which the whole class saw, that said F--- Jesus. Stanley was in the room. And if I remember right he was the President of the Christian law students association back then. My friend Chris, a devout Catholic, was in the room and saw it (he said he wanted to strangle the student). And of course our professor, who couldn't see it, was a devout Catholic.

The school was so PC that you couldn't even *think* of uttering something that would offend one of the sacred groups. But doing that, apparently was okay.

The Death Penalty:

Even though I haven't yet read this opinion, I predict that given that the US is the only Western Nation that still allows for [or allowed for] executions of people who committed crimes as minors, the opinion will cite such foreign law and this will drive the right-wingers nuts.

Personally, if a near adult commits a capital crime, and if capital punishment is legit, I don't see why not. Given that it takes about 20-years to execute someone, it's not like we are executing them when they are minors.

My only reservation about the DP is putting an innocent to death, which, as far as I know, has never happened in the modern era (at least there's no proof of it). And the reason why it's never happened is because we execute so damn few people and go through an infinite process of i dotting and t crossing that it's practically impossible for an innocent to be put to death. But that in turn transforms the death penalty into this expensive, arbitrary process where 20,000 homicides occur every year but less than 100 executions.

But when we have a "no-doubt" case, for instance, the BTK serial killer who admitted to doing the murders, I see no reason to oppose the execution and I look forward to the day that he gets it.

Update: My Dad writes:

"I'm not so sure that no innocent individuals have been executed. It seems that there was a very questionable execution in VA, and perhaps others."

And

"No death penalty for the BTK killer as it was not reinstated in Kansas until after all of the killings occurred. Also, I do believe that Kennedy cited foreign sources in his opinion and Scalia was his ornery self with his dissent."