::Freespace::

Half-point for Kinsella: Stephan Kinsella has a brief article disputing one of my articles on the Civil War (which is tentatively scheduled for the next Liberty). He almost understands my argument correctly. He writes that in my view, �slavery is completely irrelevant� to the question of the Civil War, because �[a]ccording to this theory, even if none of the United States had had slavery in 1861, it would still have been a �mere criminal conspiracy� for the South to secede, without permission from Congress.�

This is correct, and I had hoped that that much was clear. However, Kinsella fails to follow me to the second step of the analysis. In my view, criminal conspiracies are sometimes justified�that is, when they are acts of legitimate revolution. For instance, the framers signing the Declaration of Independence in 1776 were engaged in a criminal conspiracy, too. But in that case the criminal conspiracy was justified because it was an act of revolution.

So we have to go to the second question�given that secession was illegal, was it a legitimate act of revolution? At that step, slavery becomes relevant, because it is what shows that the secession of 1861 was not a legitimate revolution.

I have explained this two-step analysis repeatedly in my articles. In the article to which Kinsella points, I explained it three times. Perhaps eventually it will sink in.

The Fourth: Have you ever actually read this thing through? You�d be surprised how many haven�t. If not, read it today.

Stoppard: Will Baude says it�s Tom Stoppard�s birthday today! I didn�t know! I�m a big fan of Stoppard, as you will know from reading my recent review of Ira Nadel�s new biography of him (which I published in Liberty). My favorite Stoppardism: �All your life, you live so close to truth that it becomes a permanent blur in the corner of your eye. And when something nudges it into outline, it�s like being ambushed by a grotesque.�

Out: My parents will be visiting this weekend, so I will not be posting much. In the meantime, why don�t you read Frederick Douglass� outstanding speech, �What To The Slave Is The Fourth of July?� My favorite line in it is, �interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT.�

July 2: On July 2, 1776, on the motion of Delegate Richard Henry Lee, the Second Continental Congress unanimously resolved that the united colonies were, and of right ought to be, free and independent states; that they were absolved of all allegiance to the British crown; and that all political connection between them and the state of Great Britain was, and ought to be, totally dissolved.

Nouveau flamenco: For the past week, I�ve been obsessing on a new CD I bought, called Nouveau Flamenco, by Ottmar Leibert. Modernized Gypsy acoustic guitar. It�s a style of music to which I was introduced by the beloved E., and this CD is really outstanding. Simultaneously vigorous and relaxing, and extremely beautiful. Go get it and listen to it while driving fast down PCH.

Right to a vacation: Somewhere, a federal judge is missing his curmudgeon. But while the Clerk notes that the right to a vacation is not in our outmoded, obsolete, worn out Constitution�although he suspects that our modern philosophers may yet find it emanating from a penumbra�one should keep in mind that the right to a vacation is, indeed, recognized as an inalienable human right by the United Nations Universal Declaration of Human Rights. (Scroll down to Article 24.) In fact, as I read Article 22, we all have a right to make the government pay for our vacations, too! Yay!

More wolves: Remember what I was saying, about how some people think they have a fundamental right to govern others? Sure enough, this article (which I saw on The Buck Stops Here), proves it. �Morality was the only reason for [Lawrence�s] holding that public morality is irrelevant to the constitutionality of a law,� writes Jon Cohn. �In effect, what the Court held was not that morality has no place in constitutional jurisprudence, but only that public morality is irrelevant. The justices' own morality is decisive.� In other words, the electorate has a fundamental right to regulate our private lives, and when the judges step in and say �No, you have no business telling these men what they may do in their own bedrooms,� Mr. Cohn feels like he is being imposed upon! We have deprived him of something dear to him: his claimed right to run someone else�s life!

Is this not the principle, fantastically called �popular sovereignty,� that that �if one man would tell another how to run his private life, no third man should object�?

Oh, and, what did Lawrence have to do with public morality? Mr. Cohn seems to have forgotten the facts of the case: these men were in a private bedroom. They were emphatically not in public!

Fame!: Thanks to SW Va. Law Blog for the link. Yes, I should have said that my answer was "yes, thank god!" I'm sure you've heard the old joke�why do Baptists disapprove of premarital sex? Cause it leads to dancing.

Is it just me, or is the prohibition on dancing one of the silliest religious taboos ever devised? I mean, many religious taboos--and things like headdresses and beard-cutting and whatnot�are pretty crazy, but dancing?

Art: You know when you can tell that an art form is dead? When the artists stop being �great� and start being �important.�

Choice of words: So I�m reading Crescat Scientia�s comments on sodomy laws and government regulation of marriage, and then I come across Amanda Butler�s post that begins �when the guy from the computer department is fixing your computer at work, it�s not a bad idea to ask him why he's wearing spurs...it could lead to an offer of �hey, do you want to come out to my stable to ride some time?� I rode for the first time in nearly five years last night.�

It took me a while to realize she wasn�t talking in euphemisms.

Fame!: Thanks to Crescat Scientia and Southern Appeal for the links.

Thomas and Douglass (Part 4): Black thinkers are routinely classified into one of two parties typified by Booker T. Washington or W.E.B. DuBois. Thomas, for instance, is usually viewed as belonging in the Washington camp. But such classification in fact is too crude to work here. Douglass, for instance, fits neatly into neither category. Although, like Washington (who wrote the first biography of Douglass), Douglass argued for self-reliance and against separatism or �race pride,� he also (like DuBois) believed in political activism. Once, late in life, Douglass was visited by a young man who asked him what he should do with his life. �Agitate, agitate, agitate!� was Douglass� reply. Like Douglass, Thomas actually defies classification into either the �accomodationist� Washington school, or the collectivist DuBois school.

Yet, commenting on Douglass� belief in self-reliance and rejection of government intervention, Waldo Martin (supra at 134), makes the startling comment that Douglass expected blacks to �bec[o]me like whites.� On the contrary, Douglass never in his life did any such thing. In fact, he was mortified when he saw blacks trying to do so�for instance, when he noted that �[o]ur women powder their faces and buy the hair of the white race to make themselves more acceptable or less objectionable to the white race.� What Douglass did urge was a program of literacy, hard work, responsibility, personal integrity, self-improvement, dignity, respect for others, and pride in one�s accomplishments. If Martin regards these qualities as �white,� that is more revealing of Martin�s outlook than that of Douglass, who all his life took seriously the proposition that �all men are created equal.� See further Frederick Douglass, The Life & Times of Frederick Douglass, reprinted in Douglass: Writings 913 (H. L. Gates ed 1994) (�I have aimed to assure [black Americans] that knowledge can be obtained under difficulties; that poverty may give place to competency; that obscurity is not an absolute bar to distinction, and that a way is open to welfare and happiness to all who will resolutely and wisely pursue that way; that neither slavery, stripes, imprisonment, or proscription need extinguish self-respect, crush manly ambition, or paralyze effort; that no power outside himself can prevent a man from sustaining an honorable character and a useful relation to his day and generation; that neither institutions nor friends can make a race to stand unless it has strength in its own legs; that there is no power in the world which can be relied upon to help the weak against the strong�the simple against the wise; that races, like individuals, must stand or fall by their own merits; that all the prayers of Christendom cannot stop the force of a single bullet, divest arsenic of its poison, or suspend any law of nature.�).

So Thomas� use of Douglass is quite consistent with Douglass� actual views.

Update: Oops. In the process of shifting from my draft article to a blog post, I, too linked to the wrong speech in the original post to part 1. I have fixed it now.

Thomas and Douglass (Part 1): (The following is adapted from my excrutiatingly-difficult-to-complete paper on the Constitutional Thought of Frederick Douglass.) The Curmudgeonly Clerk (if you�re curious, here�s a photo of him) invites my comment on Justice Thomas� quotation of Frederick Douglass, in response to an article accusing Thomas of intellectual dishonesty for quoting Douglass.

First, I�m afraid the Clerk is quoting the wrong speech. Douglass reused several of his speeches, so the one that the Clerk quotes is similar to the one that Justice Thomas quoted, but the one Justice Thomas quoted was delivered to the Massachusetts Anti-Slavery Society in 1865, and you can read it online at the Library of Congress� Frederick Douglass page. (By the way, I�m extremely disappointed in the LoC�s Douglass page, which is terribly indexed. Here�s hoping they get that fixed.)

The passage, which appears on p. 39 of the pamphlet, reads�

In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested toward us. What I ask for the Negro is not benevolence, not pity, not sympathy, but simply justice�. Everybody has asked the question...�What shall we do with the Negro?� I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are ripe early and disposed to fall, let them fall! I am not for tying or fastening them on the tree in any way, except by nature�s plan, and if they will not stay there, let them fall. And if the Negro cannot stand on his own two legs, let him fall also! All I ask is, give him a chance to stand on his own legs! Let him alone! If you see him on his way to school, let him alone�don�t disturb him! If you see him going into a workshop, just let him alone�your interference is doing him a positive injury. Let him fall if he cannot stand alone. If the Negro cannot live by the line of eternal justice�the fault will not be yours; it will be His who made the Negro, and established that line for his government. Let him live or die by that. If you will only untie his hands, and give him a chance, I think he will live.

This was an echo of a speech he had given at least as early as 1862, when he wrote in Frederick Douglass� Paper, �[i]t is said, what will you do with [the freed slaves]? They can�t take care of themselves; they would all come to the North; they would not work; they would become a burden upon the State, and a blot upon society.... What shall be done with them? Our answer is, do nothing with them; mind your business, and let them mind theirs. Your doing with them is their greatest misfortune. They have been undone by your doings, and all they now ask, and really have need of at your hands, is just to let them alone. They suffer by every interference, and succeed best by being let alone.... As colored men, we ask only to be allowed to do with ourselves, subject only to the same great laws for the welfare of human society which apply to other men.... Let us stand upon our own legs, work with our own hands, and eat bread in the sweat of our own brows.�

Thomas and Douglass (Part 2): Wickham�s complaint seems to be that Douglass� argument cannot apply because, after all, the schools were once segregated, so blacks were not �let alone.� In Wickham�s view, racial preferences in admissions are necessary to redress the imbalance created by segregation. There are two problems with this. First, as the Clerk points out, the whole point of Grutter is that �diversity� itself is now a �compelling state interest,� not only to redress the bad effects of segregation. Racial admissions can undertaken either to fix the effects of segregation�and thus will be limited�or they can be undertaken to ensure �diversity.� Grutter takes the latter view, not the former, so Wickham has the wrong case.

Secondly, Douglass regularly rejected proposals for using redistributionary methods to redress the hardships of former slaves. Think about that�people who had actually been slaves, and Douglass was saying �leave [them] alone.� For instance, some Radical Republicans, including Charles Sumner, wanted to redistribute land from former slave owners to their former slaves. Douglass actually opposed this. See Waldo Martin, The Mind of Frederick Douglass 69 (1985); David Herbert Donald, Charles Sumner And The Rights of Man 298-299 (1970). Although Douglass endorsed the Freedmen�s Bureau Bill, he generally opposed government intervention or redistribution. He believed that such intervention posed a hidden threat to former slaves.

First was what is referred to as the �public choice problem.� If government were given the authority to redistribute property to the unpopular minority that was the freed slaves, that power would almost certainly be captured by the majority�resentful white racists�who would use it to take what little property the freed slaves might have accumulated. Douglass had voiced this concern before the war, in a letter to Gerrit Smith, in which he warned that if the government could act beyond the letter of the Constitution, it would become �a lawless mob, acting without any other or higher authority than its own convictions or impulses as to what is right or wrong.... There is no limit, or safety, or certainty.�

Schemes for wealth redistribution would be unlikely to find sympathy in a man whose primary reason for escaping slavery was his frustration at having his wages taken from him:

�I contracted for it, worked for it, collected it; it was paid to me, and it was rightfully my own; and yet upon every returning Saturday night, this money�my own hard earnings, every cent of it�was demanded of me and taken from me by Master Hugh. He did not earn it; he had no hand in earning it; why, then, should he have it? I owed him nothing. He had given me no schooling, and I had received from him only my food and raiment; and for these my services were supposed to pay form the first. The right to take my earnings was the right of the robber. He had the power to compel me to give him the fruits of my labor, and this power was his only right in the case.�

In fact, Douglass was right to be concerned about the public choice problem. As Prof. Bernstein�s articles have explained, (check out this one, for instance) in the wake of Reconstruction, government frequently used (and continues to use) allegedly beneficent intervention to exclude racial minorities from gainful occupations and the use of their property.

Thomas and Douglass (Part 3): Second, government aid to blacks would increase resentment by whites and other minorities, which would worsen the situation of the former slaves, even if government itself did not take their property. He exhorted his listeners to avoid �race pride.� After all, �what is the thing we are fighting against...but American race pride; an assumption of superiority upon the ground of race and color? Do we not know that every argument we make, and every pretension we set up in favor of race pride is giving the enemy a stick to break our own heads?� Douglass had encountered powerful racism in trade unions in his early days as a caulker.

Third, Douglass believed that free market policies were the best means for helping the poor. Government intervention in the economy was generally exercised for the benefit of the politically powerful, while nonintervention, though not necessarily helping the lower classes, nevertheless offered them the only real opportunity at advancement. One example Douglass frequently cited was England�s repeal of the �Corn Laws� in 1846. These laws were tariffs on grain imported into Britain, and their repeal was the result of a long and a heated political battle by a coalition of politicians and economists who argued that free trade would provide cheaper grain, and that the tariff benefitted farmers and landlords at the expense of consumers. Today, many commentators maintain that the reduction of international trade barriers is bad economic policy which results in harming the lower classes. But at the time, the repeal, which reduced the price of grain in England, was seen as a victory primarily for the lower classes, who no longer had to pay falsely inflated prices to the aristocracy who had passed the tariff in the first place. Free trade aided the poor and prevented wealthy, politically powerful elites from essentially taxing the poor for their own aggrandizement.

Fourth, government intervention was an insult to the dignity of blacks themselves; a badge of inferiority. �The black man is said to be unfortunate. He is so. But I affirm that the broadest and bitterest of the black man�s misfortunes is the fact that he is everywhere regarded and treated as an exception to the principles and maxims which apply to other men.... Necessity is said to be the plea of tyrants.[] The alleged inferiority of the oppressed is also the plea of tyrants.... Under its paralyzing touch all manly aspirations and self-reliance die out and the smitten race comes almost to assent to the justice of their own degradation.�

�We are not only confronted by open foes, but we are assailed in the guise of sympathy and friendship and presented as objects of pity,� he said. But �it is this gigantic representation [that the former slaves could not succeed without government help] to which I object, I deny that the Negro is correctly represented by it. The statement of it is a prejudice to the Negro cause. It denotes the presence of the death dealing shadow of an ancient curse.� Douglass believed that individual achievement and self-reliance alone could create self-respect--the vital quality which slavery had sought to obliterate. Government paternalism would necessarily undermine that self-respect, and thus keep blacks in a second-class status. �No People that has solely depended upon foreign aid, or rather, upon the efforts of those, in any way identified with the oppressor...ever stood forth in the attitude of freedom.�

Bushrod Washington: Greg Goelzhauser mentions one of my favorite judges, Supreme Court Justice Bushrod Washington, nephew of President Washington, who was appointed to the Supreme Court in 1799 by President Adams. Bushrod wrote the seminal case Corfield v. Coryell, which explains the term �privileges and immunities� in Art. IV of the Constitution. The term�traceable back through common law, as Justice Thomas did in his Saenz v. Roe dissent�referred to the natural rights of all mankind; �those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.�

These principles, continued Washington, in a passage that seems na�ve in retrospect, �would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental�.�

Corfield was repeatedly discussed by the Congress that drafted the privileges or immunities clause of the Fourteenth Amendment, which was later nullified by the Slaughter House Cases.

Washington also wrote a case called Banks v. Greenleaf, 2 F.Cas. 756 (C.C.D. Va. 1799) one of the first Full Faith and Credit Clause cases. There�s a sentence in Greenleaf which is one of those chilling hints at things to come. �I am clearly of opinion that the general [federal] government derives its existence and power from the people, and not from the states, yet each state government derives its powers from the people of that particular state.� Id. at 759. There, in that one sentence, are the seeds of the Civil War.

Strange, isn�t it? Seems like such an obscure thing, this question over whether federal sovereignty derives from the people or the states�and yet it ended up with hundreds of thousands dead on battlefields across our nation. And when he wrote that phrase, he could hardly have foreseen.

We never know (especially in the law) how the smallest thing will grow, and grow, until it has overrun you without your realizing it, and then you look back and wonder, where did it all first go wrong? And that reminds me of a poem by Yeats, called �Leda And The Swan�:

A sudden blow: the great wings beating still
Above the staggering girl, her thighs caressed
By the dark webs, her nape caught in his bill,
He holds her helpless breast upon his breast.

How can those terrified vague fingers push
The feathered glory from her loosening thighs?
And how can body, laid in that white rush,
But feel the strange heart beating where it lies?

A shudder in the loins engenders there
The broken wall, the burning roof and tower
And Agamemnon dead.
Being so caught up,
So mastered by the brute blood of the air,
Did she put on his knowledge with his power
Before the indifferent beak could let her drop?

Fame!: Forgive the lateness of my acknowledgements, but my thanks to SW Virginia law blog for the links (here and here).

Man, I miss Virginia.

Okay, here�s a question for you, SWVa�does Lawrence mean that the laws banning dancing, which I hear are still on the books of some quaint Virginia towns�are unconstitutional? (Answer: Yes, thank God!)

Licensing: It�s illegal to hire an unlicensed tour guide in Washington, D.C. Several other cities also require licenses. You know, to protect public health and safety.

Columbia: How sad.

Art news: The lovely and talented Sarah Hempel has begun to update her website, at last, and has posted some photos of her newest works�sculptures on the theme of the Annunciation.

The tyrant�s plea: Dr. Craig writes, �The whole idea of limited government assumes that human beings can and should govern themselves. Liberty, understood as self-government, assumes the virtue of moderation, i.e., the voluntary restraint of the passions, in its citizens. On the other hand, the right to privacy assumes that liberty (or the right to privacy) is licentiousness (or self-indulgence), i.e., the right of the individual to unrestrained self-expression.�

But isn�t this just the same old sham? Whenever a person wants to restrict some freedom, he says �I�m not taking away your freedom. I�m just saying you have to be responsible. Sure, you have freedom of speech, but you have to be responsible, by which I mean, you must not criticize me. Sure, you have a right to property, but you have to be responsible, by which I mean, you must use your property in the way I want you to. Sure, you have a right to work for a wage, but you have to be responsible, and submit to my taking your paycheck. Sure, you have the right to have sex, but you must be responsible, by which I mean, you must have sex in the way that I prescribe�.� Enemies of freedom have always claimed that freedom is anarchy, and then they say that they�re not for tyranny, just for responsibility and restraint. When the newspaper editors of Hong Kong show �moderation� and the �virtue� of �voluntary self-restraint� by not criticizing the government of China, we call that self-censorship. And when the government sends armed agents into your bedroom, and commands you on pain of prosecution to practice the virtue of �voluntary self-restraint,� then the definition of voluntary has lost all meaning indeed!

Dr. Craig is trying to hide the fact that the Texas sodomy law had nothing whatsoever to do with voluntary restraint�it had to do with the state restraining people. More specifically, with the state dragging people from the beds of their loved ones, when they were harming nobody. Just who is failing to practice moderation, here, Dr. Craig? Is it the gay man who, in the privacy of his own bedroom engages in consensual sex with another adult�or is it the professor who claims that the state has the right to break down our doors and command our bedroom activities, and then calls that claim voluntary restraint?!

I�ll tell you, homosexuality may be repugnant, it may be unhealthy, it may even, for all I know, violate the law of nature. But I think we all ought to be far, far more scared of people who claim the right to break down our doors in the middle of the night and drag our loved ones from our arms, than of all the gay men on the Earth. I have never had a gay man assert his right to tell me what I may do in my own bed. I have never had a gay man break down my door and steal away the most precious person in my life. I have never had a gay man threaten me and terrify me with the force of the state behind him because I failed to conform to his notion of social decency. So just who is the monster in this scenario?

Oh, just one more thing: In the midst of his bizarre 8000 word rant, Mr. Lang mentions something the Claremont guys often bring up in support of their claim that the framers believed the state could regulate private, adult, consensual sexual activity. (A historical claim, by the way, which I actually do not dispute�I believe that, as with slavery, the framers embraced principles incompatible with their contemporaneous practices.)

Anyway, the claim is, Thomas Jefferson, in revising the legal code of Virginia in 1776, prescribed castration as a punishment for �buggery,� and that this proves that he believed the state could prohibit private, adult, consensual sexual activity.

This, however, ignores three important things. First, Jefferson was actually decreasing the punishment for sodomy. Jefferson tried hard to decrease the number of capital crimes. (But his Bill for Apportioning Crimes And Punishments was not passed by the legislature.) Second, Jefferson�s draft also made other things illegal, such as �[a]ll attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, enchantment, or sorcery, or by pretended prophecies,� which was punished �by dunking and whipping, at the discretion of a jury, not exceeding fifteen stripes.� Not exactly an ideal model for a free society�s criminal code. (But keep in mind, Jefferson was revising the criminal code, not writing it wholesale.)

Finally, in a footnote, Jefferson added an interesting comment to the proscription on �buggery.� He wrote that according to Coke, ��Buggery is the Genus, of which Sodomy and Bestiality, are the species�. Sodomy is with mankind�.� [Coke] says, �it appears by the ancient authorities of the law that this was felony.� Yet [a statute from the reign of Henry VIII] declares it felony, as if supposed not to be so.� In other words, Jefferson expresses some doubt as to whether sodomy was a felony (meaning, punishable by death). He the writes, �Bestiality can never make any progress; it cannot therefore be injurious to society in any great degree, which is the true measure of criminality in foro civili, and will ever be properly and severely punished, by universal derision. It may, therefore, be omitted. It was anciently punished with death, as it has been latterly�.�

Although he does not mention homosexuality in this last passage, it does reveal that for Jefferson, sexual acts could only be prohibited if they were �injurious to society in [a] great degree,� not simply on the grounds that such acts violated a law of nature. Acts which did not injure society were sufficiently punished �by universal derision,� not by criminal sanction. I think this reveals that, for his time, Jefferson was remarkably liberal with regard to sexual crimes, or at least, more liberal than some conservatives would admit. In any case, it�s exceedingly dangerous to draw one�s conclusions about Jefferson�s views on these matters from this bill, which was a revision of a preexisting legal code, and which was written in order to pass a legislature full of men who were not exactly in line with him intellectually. The fact that he omitted bestiality from the criminal code would not be taken as implying that he endorsed that practice�so why would the fact that his code punished �buggery� be taken as proof that he thought that should be punished?

Winding Up: As I�ve indicated on the Claremont site, I�m tired of talking about Lawrence now, so I will bring this to a close with some brief thoughts.

First, I hold that it is a sacred and undeniable right of all adult human beings to make love to any consenting adult human being without interference by the state, so long as they harm no unconsenting third party. It ought to be horrifying that anyone, in the United States of America, in 2003, would make the barbaric assertion that the state may break down a man�s door and drag his loved one from his arms in the middle of the night on the grounds of �public morality�!

The fallacy in the argument put forth by the natural-rights(-but-not-for-homosexuals) argument is the assumption that the state may legitimately punish any and all violations of the law of nature. It may not. The state may legitimately punish only the violations of the rights of the individuals who comprise the state. We might put this in the language of the law by saying that the fact that an action violates the law of nature does not establish that the state has standing to enforce that law. The law of nature, in fact, is already enforced by nature herself. It is a law of nature that man, as a rational animal, will not be happy if he indulges in excess and follows his whims; since the good life is the activity of the soul in conformity with reason, the person who fails to act this way will not flourish. Thus nature will punish the man who drinks too much, or parties all night and sleeps all day, with hangovers or depression. As Dostoyevsky so memorably illustrated, the law of nature will punish other violations, too, such as murder. W.H. Auden brilliantly explained this in his poem, �The Hidden Law�:

The Hidden Law does not deny
Our laws of probability,
But takes the atom and the star
And human beings as they are,
And answers nothing when we lie....

The state, on the other hand, does not exist to punish all violations of the law of nature. Rather, it exists to punish violations of the rights of people. It may not punish a man for overindulging in chocolate�nature will punish him by making him fat; but the state has no business in the matter, because it does not harm anyone else. The state may, however, punish murder, or rape, or robbery, because these things harm third parties without their consent. That, in itself, does violate the law of nature, but it is the harm that allows the state to intervene, because the legitimate powers of government extend only to such acts as are injurious to others.

It has not been proven that homosexual activity violates the law of nature, but this is not my central point; indeed, were it to be established, I would continue to make my argument, because I say that human beings have the right to violate the laws of nature (if the law of nature is conceived of in terms of biological imperatives), so long as no unconsenting third party is harmed. I violated the law of nature just minutes ago, when I got in my car and drove 20 minutes to a nearby bookstore. How unnatural! I took gasoline�a substance not produced in nature�and put it into an engine (entirely artificial), detonated it with a series of sparks to create explosions to push pistons to turn cranks to propel me down the highway at more than a mile per minute! Nothing in mother nature�s design has called for such an absurdity! And a dangerous absurdity at that, for hundreds of thousands of people are killed every year doing just that!

This, you say, is not really a violation of the laws of nature? Because the term �nature� does not mean mere biological tendency? Or because it is natural for human beings to invent and create, and thereby to turn natural tendencies to our own purposes? Or because the law of nature cannot be defined by biological imperatives? Then why is homosexuality �unnatural�?

The assertion that sex exists solely for procreation, and thus that sex which does not result in procreation is unnatural, and may be prohibited by law, reduces man to his biological urges�an ironic thing for conservatives to do, no? It ignores that man has a reasoning mind. Sex thus becomes a drive, not an instrument of self-expression. Yet it is the unique characteristic of human sexuality that we alone can have sex to express love, rather than merely to procreate. Mr. Kohne makes the ipse dixit argument that �the �Natural� pupose [sic] for sex is to procreate. Period. And in order to procreate it takes a male and a female. Now, if one were to be so stupid as to suggest that the right for people to engage in homosexual sex is a �Natural� right, and therefore Consitutionally [sic] protected, I would have to say that they wasted alot [sic] of money in Law school. Homosexual sex is, by definition, un-natural, and therefore, not a �Natural Right.��

It�s a fortunate thing that I wasted federal taxpayer money, and not my own, on law school, but alas, the result has left me too stupid to comprehend Mr. Kohne�s �logic.� It would seem to me that by his logic, George and Martha Washington (an infertile couple) were violating the law of nature every time they were together as man and wife. It would seem that kissing or hugging is a violation of the law of nature, since these things do not perpetuate the species. It would seem that postmenopausal wives could be dragged from their husbands� beds by government agents, under Mr. Kohne�s argument, because they cannot perpetuate the species, and are thus violating the law of nature. And why should rape be illegal? Is it not the �natural� procreative drive of males?

The argument that sex exists merely for procreation not only gets the concept of �nature� wrong, but it ignores the very core of human nature: that we, alone among the animals, can use sex not to procreate, but to express our love for one another. Is that not a good thing? Is it not a wonderful thing? Is it not a blessed thing? Not in Mr. Kohne�s world. In his world, we are merely animals, reproducing in obedience to our biological destiny. How astonishing to find this argument put forth by conservatives�the very ones who denounce secular humanists for �reducing man to mere atoms� and �ignoring the higher things� and whatnot!

For now, this is my last word on the subject. In my forthcoming article, �Liberal Originalism: A Past For The Future,� I expand on some of these themes a bit more. Until then, on to more challenging opponents.

Prof. Cole: A moving note indeed from Prof. Marcus Cole, on the Volokh Conspiracy. I met Prof. Cole at the IJ seminar in 2000, and was deeply impressed by his teaching ability. In less than a half hour he had explained the major points of law and economics to us in terms none of us will soon forget. He�s a really outstanding scholar�and a genuine son of liberty.

One little personal detail I find interesting about Prof. Cole. Over drinks at the seminar, I noticed and commented on his unusual wedding ring, which is peaked, like a sergeant�s upper stripes. He mentioned that he and his wife had these rings specially made, designed off of the rings worn by a tribe in Africa from which he is descended. Lover of history and tradition that I am, I thought that very cool.

Who�s Arbitrary (Part 2): Is not the distinction between a man and a beast precisely that we do not live for the sake of the herd? Is it not the difference between man and the ant that we have the fundamental right not to sacrifice ourselves for the benefit of the anthill? As Thomas Jefferson said, �If we are made in some degree for others, yet in a greater we are made for ourselves. It were contrary to feeling & indeed ridiculous to suppose that a man had less right in himself than one of his neighbors or indeed all of them put together. This would be slavery & not...liberty.... Nothing could so completely divest us of that liberty as the establishment of the opinion that the state had a perpetual right to the services of all it�s [sic] members. This to men of certain ways of thinking would be to annihilate the blessing of existence....�

It is those who claim the right to rule over us as though we were not free individuals�as though we were not adult humans capable of making our own choices�even wrong choices, and suffering the consequences if we do�it is those who claim that they, the rulers, are somehow above the moral fallibility of the rest of us, and who assert the right to rule over other people�s choices, who are treating us like animals. Whether it be Bill Clinton, saying that we �might not spend [our own money] right,� or Mr. Funk and Mr. Lang, saying we might not make the �right� private sexual choices with other consenting adults in the privacy of our own bedrooms�they are the ones who arrogate to themselves the role of shepherd and insist upon us being the sheep.

Is there any sanctity to the private home in their scheme? Is there any meaning to private property? Is there any value to the individual�s freedom to make even his own private choices with another individual? No�they insist that the choice is either anarchy or obedience, with no alternative of freedom�that people must be told whom they can sleep with, lest the sky fall and crush us all. As Algernon Sidney put it, �our author confines the subject�s choice to acting or suffering, that is, doing what is commanded, or lying down to have his throat cut, or to see his family and country made desolate. This he calls giving to Caesar that which is Caesar�s; whereas he ought to have considered that the question is not whether that which is Caesar�s should be rendered to him, for that is to be done to all men; but who is Caesar, and what doth of right belong to him, which he no way indicates to us: so that the question remains entire, as if he had never mentioned it, unless we do in a compendious way take his word for the whole.�

I say there is a difference between man and beast. That difference is that we are reasoning beings, with both the power and the right to make our own decisions, without being subject to the arbitrary will of another. I say that like the sheep in Abraham Lincoln�s speech, we have the right to do with ourselves and our bodies and our souls what we choose, even if those choices do not please Mr. Lang or Mr. Funk. I say no man has a right to run another man�s life, or to make another man�s sins into crimes. And I say that is the very definition of freedom.

Who�s arbitrary? (Part 1): [I posted this on Claremont�s site already, and thought I�d post it here, too, but Blogger�s infuriating new word limit requires me to split this into two posts�.] Who has ever claimed that the distinction between male and female is purely arbitrary? Gays certainly do not make that claim; they obviously distinguish between male and female, since they choose to sleep with men because they are men, rather than with women! The question is not whether the distinction between men and women is arbitrary or natural or whatever�the question is whether that distinction is sufficient ground for the state to regulate the private, adult, consensual activity of men with other men or women with other women, or men with women. The question is, by what chain of reasoning does it follow that the distinction between men and women entitles the government to control our private choices? I submit that the chains of reasoning so far proffered are, in fact, nothing more than arbitrary assertions�force without right�despite their high-sounding filigrees.

Further, by what process of reasoning does it follow that denying the distinction between male and female would lead to denying the value of human life? This is truly a ludicrous statement if ever there were one. Because we deny that the state may deprive people of the liberty to engage privately in consensual sexual activity with other adults who also consent, we therefore believe that human life has no value? Quite the opposite, certainly! Those who assert that they have the right to tell us how to run our lives, on the basis of their own views of what sexual conduct is �proper,� or on the basis of asserted, but unproven, claims of �unnaturalness��those, in fine, who assert that the alleged, attenuated social costs of private behavior is sufficient predicate for the criminalization of such behavior�that is the very definition of arbitrary power, which, in the end, denies the value of human life.

Those who claim that �harm to society� is alone sufficient reason to run our private lives�they are the ones who end up regulating every aspect of our lives, and who send armed agents of the state into the private bedrooms of adult Americans. Who is it that denies the value of life? It is they who say that the individual does not belong to himself, but belongs to others, or to society as a whole.

Mr. Funk, attempting to cover the brutality of his political code with fine-sounding phrases, writes, �if the human family can properly consent to its own annihilation, what difference does it make if the�extermination is accomplished by the use of force?� Of course, that is precisely the question that I have been raising. If the people have the right to vote on whether I may do X, or Y, or Z, with another consenting adult in my private bedroom�if, that is, the human family can properly consent to the deprivation of one of its own most precious freedoms�then what difference does it make if the extermination is accomplished by the use of force? Mr. Funk has made my point exactly! He and Mr. Lang demand the right to control the private lives of other people because they find those other people�s choices distasteful, or consider them somehow harmful to society in general. What, then, stops him from telling me what I may eat, what I may earn, what I may say, what I may read, what I may think, what I may listen to, what I may smoke or dream or drink or build�. If Mr. Funk and Mr. Lang�s belief that behavior X is �unnatural,� and �harms society� in some indirect manner is enough to justify using the police to break down our bedroom doors, then what value does any liberty retain? Is this not the left�s own argument? That for a person to agree to an employment contract at $5 per hour drives down the wages of all workers and therefore harms society�thus we must have a minimum wage; that for a person to build a house on Lake Tahoe increases the pollution of the groundwater which harms Lake Tahoe which harms society as a whole�therefore the state will prohibit you from building anything on your land. In other nations it has gotten even worse; for you to complain about the government undermines the people�s revolutionary spirit, and thus you must be censored; for you to own your own property harms the proletariat, therefore you must be nationalized�. All of these claims�and the claims of conservatives who believe the state may illegalize private, adult, consensual sexual activity�share in common the presumption that some (alleged) harm to society is sufficient to deprive you of your rights. But is it not the very purpose of rights that we may exercise them even when all of society is against us? If we may be deprived of our rights simply because Mr. Funk and Mr. Lang believe that our exercise of those rights harms society in some indistinct manner, then they are not rights, but privileges, and we have not liberty, but permission.