Saturday, August 16, 2003
Query: A few years ago, it was said to me: �A woman cannot love a man without respecting him. But a man can love a woman without respecting her.� Is this true? Those with interesting answers are invited to share them.
Superduper Big Gulp: Clint Bolick once said to me, �You know, 7-11 just cannot make a cup so big that people won�t buy it.� (Thanks to Sharon for the pointer.)
Brights: You know, it�s very embarrassing when someone you admire says something that, well, you consider un-admirable. Richard Dawkins has an editorial in the current issue of Free Inquiry denouncing the Iraq war (hey, now, be kind to old media). Fine enough�but he ends with a paragraph defending himself against the charge of anti-Americanism. No, he says, he�s just anti-Bush. Why? Because �you didn�t elect him.� Dawkins goes further: there�s �something...wrong� with the Constitution, he says, that it would allow the election of a President who got fewer individual votes than another candidate.
This is upsetting for several reasons. It�s understandable that Dawkins would dislike Bush: you could hardly contrive a President more prone to disturb urban secular humanists. But is it impossible that Bush would pursue rational policies? Dawkins has legitimate arguments against involvement in Iraq (moot though they are) but to tie them with being �anti-Bush� at best weakens his legitimate arguments.
But more importantly, about there being �something wrong� with the Constitution. For there to be something wrong with it, we�d have to compare it to some natural, universal standard. What should that be? Evidently Dawkins thinks it should be �majority rule.� But where does majority rule get its legitimacy? Dawkins seems to assume that it is just inherently legitimate. That, at least, was not Madison�s view: the framers generally believed that there had to be some pre-political agreement on that matter (which they called the �social contract.�) If the people decided on a 2/3 vote requirement, they could�though the framers thought this had its drawbacks, and they used it rarely. But so long as the people agreed on the procedure and that procedure was consistent with natural rights, then there was nothing stopping the people from devising even complicated and obscure election methods. The electoral college, as originally designed, fit within that range of options, and accomplished important goals: removing the election from the hands of the uneducated, for one thing. Balancing out population differences with regional differences, for another. Allowing state legislatures to protect themselves from federal encroachment, for a third. There are reasonable arguments against the electoral college, but there are also solid reasons for it�especially to prevent the country from being ruled by massive urban populations to the exclusion of dispersed rural populations�that is, to (at least to a minor degree) prevent the working classes from being dominated by elites! Since the virtual abolition of discretion on the part of electors, that has been its primary function, and the results of elections have been consistent with the popular vote in the overwhelming majority of presidential elections. Since the ratification of the Twelfth Amendment, John Quincy Adams, Rutherford Hayes, and Bush the Younger are the only elections that have gone opposite to the popular vote. There have been 48 presidential elections, with three �errors,� (if they are errors) which is only about six percent: pretty good for government work. And in Adams� and Hayes� days, electors could still exercise independent judgment, which they allegedly can�t today.
In the end, the answer is, yes, we did elect him, Prof. Dawkins, because our election procedures require votes in the electoral college, and that�s what he got. If you think the electoral college should be abolished, you must make a case against some objective standard, but merely assuming that the majority should always elect the president doesn�t answer that question, because it fails to explain how simple majoritarianism will solve the problems that gave rise to the electoral college�or how those problems are irrelevant.
This is upsetting for several reasons. It�s understandable that Dawkins would dislike Bush: you could hardly contrive a President more prone to disturb urban secular humanists. But is it impossible that Bush would pursue rational policies? Dawkins has legitimate arguments against involvement in Iraq (moot though they are) but to tie them with being �anti-Bush� at best weakens his legitimate arguments.
But more importantly, about there being �something wrong� with the Constitution. For there to be something wrong with it, we�d have to compare it to some natural, universal standard. What should that be? Evidently Dawkins thinks it should be �majority rule.� But where does majority rule get its legitimacy? Dawkins seems to assume that it is just inherently legitimate. That, at least, was not Madison�s view: the framers generally believed that there had to be some pre-political agreement on that matter (which they called the �social contract.�) If the people decided on a 2/3 vote requirement, they could�though the framers thought this had its drawbacks, and they used it rarely. But so long as the people agreed on the procedure and that procedure was consistent with natural rights, then there was nothing stopping the people from devising even complicated and obscure election methods. The electoral college, as originally designed, fit within that range of options, and accomplished important goals: removing the election from the hands of the uneducated, for one thing. Balancing out population differences with regional differences, for another. Allowing state legislatures to protect themselves from federal encroachment, for a third. There are reasonable arguments against the electoral college, but there are also solid reasons for it�especially to prevent the country from being ruled by massive urban populations to the exclusion of dispersed rural populations�that is, to (at least to a minor degree) prevent the working classes from being dominated by elites! Since the virtual abolition of discretion on the part of electors, that has been its primary function, and the results of elections have been consistent with the popular vote in the overwhelming majority of presidential elections. Since the ratification of the Twelfth Amendment, John Quincy Adams, Rutherford Hayes, and Bush the Younger are the only elections that have gone opposite to the popular vote. There have been 48 presidential elections, with three �errors,� (if they are errors) which is only about six percent: pretty good for government work. And in Adams� and Hayes� days, electors could still exercise independent judgment, which they allegedly can�t today.
In the end, the answer is, yes, we did elect him, Prof. Dawkins, because our election procedures require votes in the electoral college, and that�s what he got. If you think the electoral college should be abolished, you must make a case against some objective standard, but merely assuming that the majority should always elect the president doesn�t answer that question, because it fails to explain how simple majoritarianism will solve the problems that gave rise to the electoral college�or how those problems are irrelevant.
Broken window fallacy: An amusing and right-on post about the broken-window fallacy, by Jane Galt. It�s very simple, really: You cannot get rich by breaking your things. But she forgot to link to the great essay that started it all, Frederic Bastiat�s �That Which Is Seen And That Which Is Not Seen.�
Advice for law students: Well, school begins again soon, so here is my little piece of advice: use a commonplace book.
You can get a large blank book at Barnes and Noble or Borders for about $8. I prefer unlined, but you can get them with lines, too. Then, throughout your legal education, write in it things that you find interesting or that you think may be useful in the future. I write in mine interesting quotations from old cases (with cites!) or from other books; whenever I hear of a rule (like, say, the �enrolled bill rule�; what the hell is that?) then I write it in the commonplace book. Most of all, when you study for your finals, write your entire course outline into your commonplace book.
I filled one large journal in three years; it contains my class outlines, my bar review outlines (which I also copied by hand); several �cheat-sheets� that I photocopied and pasted in; long lists of cases about certain subjects; many inspiring or potentially useful quotations; outlines of books that I read on my own (like Norman Cantor�s excellent Imagining The Law); the text of the Constitution�and so on. I�m now on my second volume I organize them by writing in page numbers and remembering, every time I write something in, to also write �see also page ___� for anything else I�ve entered on a related subject.
Now, when I�m writing an article or a brief, I frequently think to myself �I know I have something about this in my commonplace book,� and I can find it without a great deal of work. And sometimes I�ll just flip through the book and come across something that will start me off on a useful (or at least amusing) train of thought.
You can get a large blank book at Barnes and Noble or Borders for about $8. I prefer unlined, but you can get them with lines, too. Then, throughout your legal education, write in it things that you find interesting or that you think may be useful in the future. I write in mine interesting quotations from old cases (with cites!) or from other books; whenever I hear of a rule (like, say, the �enrolled bill rule�; what the hell is that?) then I write it in the commonplace book. Most of all, when you study for your finals, write your entire course outline into your commonplace book.
I filled one large journal in three years; it contains my class outlines, my bar review outlines (which I also copied by hand); several �cheat-sheets� that I photocopied and pasted in; long lists of cases about certain subjects; many inspiring or potentially useful quotations; outlines of books that I read on my own (like Norman Cantor�s excellent Imagining The Law); the text of the Constitution�and so on. I�m now on my second volume I organize them by writing in page numbers and remembering, every time I write something in, to also write �see also page ___� for anything else I�ve entered on a related subject.
Now, when I�m writing an article or a brief, I frequently think to myself �I know I have something about this in my commonplace book,� and I can find it without a great deal of work. And sometimes I�ll just flip through the book and come across something that will start me off on a useful (or at least amusing) train of thought.
Friday, August 15, 2003
Bah: Linked you! Ha! Linked you again! Oh, I linked you a third time! Awww, gonna cry about me linking you? Aw, you fight like a girl. Come on, make me stop linking you! Linked! Linked again! Aww, gonna cry about my winking your widdle web sitey poo?
Moore: A few thoughts on Judge Moore�s lawlessness. First, I�m growing tired of the argument that the Ten Commandments are �displayed in the chamber of the U.S. Supreme Court,� and that therefore it is hypocritical for a federal court to order the removal of Moore�s Ten Commandments display. The U.S. Supreme Court has several depictions of Moses (and you can see them on this slide show on Slate): inside, a long marble bas relief depicting great lawgivers, including Grotius and John Marshall, and also religious lawgivers, including Moses. The Moses figure is holding the tablets which have Hebrew lettering on them. (Also, he is depicted standing next to Hammaurabi and other ancient figures.) Outside, Moses is on the pediment of the building holding two tablets, and you also cannot read any text: it�s obvious they�re the Ten Commandments, but these displays, I think, are quite different from the very sectarian display that Moore has erected in the Alabama courthouse. To analogize them is at least somewhat inaccurate.
Secondly, Moore�s statement that he intends to defy a court order is not only lawlessness of the sort that revives all the ghosts of Alabama�s shameful history, but is worse than that, because it issues from a man who is supposedly the chief judicial officer of the state�a man who is supposed to respect the rule of law above all other things. So this is doubly shameful.
Third, this whole showdown is for something so stupid. It never ceases to amaze me how the pettiest little displays of public religion�which seem to me to violate Matthew 6:1-8, anyway�can rouse such powerful emotions. Will the morality of the state of Alabama really collapse if Judge Moore�s gaudy display is moved out of the courthouse and onto some private plot of land, or into a church, or into Judge Moore�s closet? If so, that�s pretty weak faith.
Fourth, the whole thing reminds me of one of my favorite lines by Justice Stevens, who wrote in Wallace v. Jaffree, 472 U.S. 38, 48 (1985): �Our unanimous affirmance�makes it unnecessary to comment at length on the District Court�s remarkable conclusion that the Federal Constitution imposes no obstacle to Alabama's establishment of a state religion.�
Secondly, Moore�s statement that he intends to defy a court order is not only lawlessness of the sort that revives all the ghosts of Alabama�s shameful history, but is worse than that, because it issues from a man who is supposedly the chief judicial officer of the state�a man who is supposed to respect the rule of law above all other things. So this is doubly shameful.
Third, this whole showdown is for something so stupid. It never ceases to amaze me how the pettiest little displays of public religion�which seem to me to violate Matthew 6:1-8, anyway�can rouse such powerful emotions. Will the morality of the state of Alabama really collapse if Judge Moore�s gaudy display is moved out of the courthouse and onto some private plot of land, or into a church, or into Judge Moore�s closet? If so, that�s pretty weak faith.
Fourth, the whole thing reminds me of one of my favorite lines by Justice Stevens, who wrote in Wallace v. Jaffree, 472 U.S. 38, 48 (1985): �Our unanimous affirmance�makes it unnecessary to comment at length on the District Court�s remarkable conclusion that the Federal Constitution imposes no obstacle to Alabama's establishment of a state religion.�
Correction: Bill Simon did not lose because he was �blitzed� by a Davis �smear campaign.� He lost because he didn't campaign. He didn�t do a damn thing! Local talk show hosts were doing all his campaigning for him while Simon was locked in the bathroom for the whole campaign season! If he had bothered to be for his own candidacy, he probably would have won!
Pleasant discovery: I was pleased to discover The Book of Abigail And John, a single-volume collection of (a small portion of) the correspondence between John and Abigail Adams. I�ve been wanting such a volume for a long time, but did not know one had been republished in 2002. Their correspondence is immensely charming and their relationship very readable. And I don�t know about other guys, but I want a girl just like the girl that married dear old John. Abigail Adams may have been the perfect woman�charming, intelligent, honorable, absolutely independent-minded, well-read, hard-working, pretty (at least, according to John) and unafraid.
�Exploitation?�: Doing some research on the right to earn a living in California law, I came across this case: Galyon v. Municipal Court of San Bernardino, 229 Cal.App.2d 667 (1964), in which the court struck down an 1870s-vintange law which prohibited �exhibiting the deformities of another, or his own deformities, for hire.� Id. at 668. The facts:
�Defendant is the father of identical twin boys who, upon birth, were found to be joined at the end of the breast by a cartilage down through the abdomen. This condition gives rise to a common description that they were Siamese twins. At the time of the alleged offense, defendant was exhibiting his sons at the National Orange Show in the County of San Bernardino. The nine-year-old twins were housed in a furnished mobile trailer which had a large window on the side through which the paying public could see and observe the twins. When viewed by the public the twins were fully clothed at all times. An admission fee was charged for the exhibition. At the time of observation by the public, defendant distributed a pamphlet which contained information as to personal data and pictures of the twins. At the same time defendant verbally gave information as to the birth, lives, personalities and living habits of the twins. Defendant derives his sole income from the exhibiting of his nine-year-old sons to the public.� Id. (emphasis added).
Now, before anyone says anything about exploitation, remember that the infant incubator was invented as part of a Coney Island attraction, because the carnies wanted to exhibit premature babies. Anyway, can you imagine if such a law were on the books in California now? Reality TV would be a misdemeanor!
�Defendant is the father of identical twin boys who, upon birth, were found to be joined at the end of the breast by a cartilage down through the abdomen. This condition gives rise to a common description that they were Siamese twins. At the time of the alleged offense, defendant was exhibiting his sons at the National Orange Show in the County of San Bernardino. The nine-year-old twins were housed in a furnished mobile trailer which had a large window on the side through which the paying public could see and observe the twins. When viewed by the public the twins were fully clothed at all times. An admission fee was charged for the exhibition. At the time of observation by the public, defendant distributed a pamphlet which contained information as to personal data and pictures of the twins. At the same time defendant verbally gave information as to the birth, lives, personalities and living habits of the twins. Defendant derives his sole income from the exhibiting of his nine-year-old sons to the public.� Id. (emphasis added).
Now, before anyone says anything about exploitation, remember that the infant incubator was invented as part of a Coney Island attraction, because the carnies wanted to exhibit premature babies. Anyway, can you imagine if such a law were on the books in California now? Reality TV would be a misdemeanor!
Economics: I�m surprised that this really good article about economics appears on the Claremont Institute�s website. Dwight Lee defends economics against the charge that it is �cold and inhuman�:
�While economists see proper incentives as necessary for achieving virtuous objectives, many people think that resorting to incentives implies somehow abandoning, or even despising, virtue. Accomplishing good things by improving people is more emotionally satisfying than the economic approach of �bribing� people to do good. This makes it easy to dismiss economics as crass and corrupt, especially when economists, as they often do, aggressively dismiss attempts to improve people as a waste of time.
�True, the notion that better outcomes are best achieved by better people easily leads to the highly dubious (and typically racist) conclusion that developed societies are populated by better people. And those who consider themselves socially concerned and informed would never accept this conclusion if stated directly. But it seems to be difficult for them to admit that the economists� emphasis on better incentives, instead of better people, serves as a barrier to racist conclusions.�
In other words, one of the primary accusations leveled against economics is that it treats people like �atomistic individuals� and ignores their �deeper personalities� and so on. It �dehumanizes people� and �turns them into numbers.� Who makes this charge? Conservatives! They certainly make this charge against science in general�in particular, genetic science, although they don�t limit it to that. So either they don�t see that Lee�s criticizing them, or they are to be applauded for their willingness to publish a piece critical of their own views. As for Lee�s argument�he�s absolutely right. One of the reasons that economics has liberated us from racist thinking (or at least, liberated some people from it) is precisely because it does �treat people as atomistic individuals� rather than deciding that their differences are, say, racial. Rather than dismissing the economic failure of some nations is based on their ethnic heritage, economics says that, given the same incentives, we would do the same�in other words, all men are created equal! As Virginia Postrel points out, when Homer Plessy got on that train in 1896, he wanted to be treated like an �atomistic individual,� and he wanted the train company to treat him like a number!
�While economists see proper incentives as necessary for achieving virtuous objectives, many people think that resorting to incentives implies somehow abandoning, or even despising, virtue. Accomplishing good things by improving people is more emotionally satisfying than the economic approach of �bribing� people to do good. This makes it easy to dismiss economics as crass and corrupt, especially when economists, as they often do, aggressively dismiss attempts to improve people as a waste of time.
�True, the notion that better outcomes are best achieved by better people easily leads to the highly dubious (and typically racist) conclusion that developed societies are populated by better people. And those who consider themselves socially concerned and informed would never accept this conclusion if stated directly. But it seems to be difficult for them to admit that the economists� emphasis on better incentives, instead of better people, serves as a barrier to racist conclusions.�
In other words, one of the primary accusations leveled against economics is that it treats people like �atomistic individuals� and ignores their �deeper personalities� and so on. It �dehumanizes people� and �turns them into numbers.� Who makes this charge? Conservatives! They certainly make this charge against science in general�in particular, genetic science, although they don�t limit it to that. So either they don�t see that Lee�s criticizing them, or they are to be applauded for their willingness to publish a piece critical of their own views. As for Lee�s argument�he�s absolutely right. One of the reasons that economics has liberated us from racist thinking (or at least, liberated some people from it) is precisely because it does �treat people as atomistic individuals� rather than deciding that their differences are, say, racial. Rather than dismissing the economic failure of some nations is based on their ethnic heritage, economics says that, given the same incentives, we would do the same�in other words, all men are created equal! As Virginia Postrel points out, when Homer Plessy got on that train in 1896, he wanted to be treated like an �atomistic individual,� and he wanted the train company to treat him like a number!
Thursday, August 14, 2003
Truth: A friend passes along a sad, but true, quote. �Eventually it comes to you: the thing that makes you exceptional, if you are at all, is inevitably that which must also make you lonely.� �Lorraine Hansberry. (Evidently, this is from her To Be Young, Gifted, And Black, but it�s true of everyone, I think.)
Picard?: Oh, how embarrassing. Apparently I am Jean-Luc Picard. Which science fiction character are you?
An accomplished diplomat who can virtually do no wrong, you sometimes know it is best to rely on the council of others while holding the reins.
There are some words which I have known since I was a schoolboy. �With the first link, the chain is forged. The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably.� These words were uttered by Judge Aaron Satie�as a wisdom, and warning. The first time any man's freedom is trodden on, we're all damaged.
But I think I�m more like Salacious Crumb.
An accomplished diplomat who can virtually do no wrong, you sometimes know it is best to rely on the council of others while holding the reins.
There are some words which I have known since I was a schoolboy. �With the first link, the chain is forged. The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably.� These words were uttered by Judge Aaron Satie�as a wisdom, and warning. The first time any man's freedom is trodden on, we're all damaged.
But I think I�m more like Salacious Crumb.
Thomas Jefferson, International Man of Mystery: Nicholas Antongiavanni has a complaint about Ken Burns� Thomas Jefferson documentary, that �How many times, from how many different people, in how many different ways, can Jefferson be described as an �enigma�....� Antongiavanni�s complaint is more general, but I, too, am tired of the �Jefferson is a complete mystery� line. As I wrote in my review of E.M. Halliday�s excellent book on Jefferson,
�The great tradition in Jefferson biography is to call him an enigma, to say that his character is impervious to comprehension. Henry Adams, a severe critic of Jefferson, and great-great-grandson of a severer one, started this when he said that �A few broad strokes of the brush would paint the portraits of all the early Presidents�but Jefferson could be painted only touch by touch, with a fine pencil, and the perfection of the likeness depended upon the shifting and uncertain flicker of its semi-transparent shadows.�
�Modern historians say the same thing. Merrill Peterson, the grand old man of Jeffersonia today, says that at the end of his studies, he still doesn�t understand Jefferson, and Joseph Ellis, whose recent book was titled Thomas Jefferson: American Sphynx, makes it the theme of his scholarship that Jefferson is as impossible to understand as the Mona Lisa or the motivations of Hamlet. One is tempted to ask Ellis what he was doing all those years when he was supposed to be researching his book. But that wouldn�t be entirely fair, because at a certain level, Jefferson is indeed a mystery�just as all human beings are essentially mysteries. Only the shallowest souls can be easily described or comprehended, and perhaps not even they can be. When we think we truly understand any person, it is really only proof that we don�t know as much as we think. Friedrich Nietzsche wrote:
��The grossest errors in judging a person are made by his parents; this is a fact, but how is one to explain it? Do the parents have too much experience of the child and can they no longer compose it into a unity? We notice that travelers in a strange land grasp correctly the common, distinctive traits of a people only in the first period of their stay; the more they get to know a people, the more they forget how to see what is typical and distinctive about it. As soon as they see up close, they stop being farsighted�. Men tend to stop thinking about things that are closest to them.�
�How true this must be of Jefferson�s biographers, who have such a wealth of historical material at their disposal! Jefferson wrote some 15,000 letters in his lifetime, kept commonplace books, farm books, account books, and scrapbooks. He was in the public eye for over 50 years, from his first elective office in 1769 to his death in 1826. As a compulsive record keeper, he memorialized nearly every breath he took. I have at my disposal far more personal details about his life than I do about my own grandfather�s. Confronted with such a thorough and detailed history of any man�s life, we should be surprised if he didn�t appear complex or paradoxical, particularly if he be as brilliant, as polymathic, as deeply romantic as Thomas Jefferson. One thinks of Walt Whitman�s line, �Do I contradict myself? Very well, then, I contradict myself. (I am large; I contain multitudes.)� Jefferson did too. He led a long, varied, often deeply tragic life. No man is �easily understood,� and certainly not this man.� Timothy Sandefur, Jefferson Misunderstood, Liberty, June 2001
�The great tradition in Jefferson biography is to call him an enigma, to say that his character is impervious to comprehension. Henry Adams, a severe critic of Jefferson, and great-great-grandson of a severer one, started this when he said that �A few broad strokes of the brush would paint the portraits of all the early Presidents�but Jefferson could be painted only touch by touch, with a fine pencil, and the perfection of the likeness depended upon the shifting and uncertain flicker of its semi-transparent shadows.�
�Modern historians say the same thing. Merrill Peterson, the grand old man of Jeffersonia today, says that at the end of his studies, he still doesn�t understand Jefferson, and Joseph Ellis, whose recent book was titled Thomas Jefferson: American Sphynx, makes it the theme of his scholarship that Jefferson is as impossible to understand as the Mona Lisa or the motivations of Hamlet. One is tempted to ask Ellis what he was doing all those years when he was supposed to be researching his book. But that wouldn�t be entirely fair, because at a certain level, Jefferson is indeed a mystery�just as all human beings are essentially mysteries. Only the shallowest souls can be easily described or comprehended, and perhaps not even they can be. When we think we truly understand any person, it is really only proof that we don�t know as much as we think. Friedrich Nietzsche wrote:
��The grossest errors in judging a person are made by his parents; this is a fact, but how is one to explain it? Do the parents have too much experience of the child and can they no longer compose it into a unity? We notice that travelers in a strange land grasp correctly the common, distinctive traits of a people only in the first period of their stay; the more they get to know a people, the more they forget how to see what is typical and distinctive about it. As soon as they see up close, they stop being farsighted�. Men tend to stop thinking about things that are closest to them.�
�How true this must be of Jefferson�s biographers, who have such a wealth of historical material at their disposal! Jefferson wrote some 15,000 letters in his lifetime, kept commonplace books, farm books, account books, and scrapbooks. He was in the public eye for over 50 years, from his first elective office in 1769 to his death in 1826. As a compulsive record keeper, he memorialized nearly every breath he took. I have at my disposal far more personal details about his life than I do about my own grandfather�s. Confronted with such a thorough and detailed history of any man�s life, we should be surprised if he didn�t appear complex or paradoxical, particularly if he be as brilliant, as polymathic, as deeply romantic as Thomas Jefferson. One thinks of Walt Whitman�s line, �Do I contradict myself? Very well, then, I contradict myself. (I am large; I contain multitudes.)� Jefferson did too. He led a long, varied, often deeply tragic life. No man is �easily understood,� and certainly not this man.� Timothy Sandefur, Jefferson Misunderstood, Liberty, June 2001
Veblen: Virginia Postrel�s mention of Thorstein Veblen reminds me of a mildly amusing recent encounter: on the main campus of Chapman University, where I went to law school, is a bust of Milton Friedman, which was unveiled while I was a student there. I attended the ceremony, and met Dr. Friedman, and also met the sculptress, whose last name was Veblen. When I was leaving, I saw her alone in a hallway, and couldn�t resist: �Are you related to Thorstein Veblen, by any chance?� �Why yes,� she said. �He was my uncle.� �Does Dr. Friedman know this?� I said. �Oh, yes,� she said. �He teased me a little about it�� So�just an amusing coincidence.
Wednesday, August 13, 2003
Private versus public: Ampersand�s comment that �the problem with libertarians� (emphasis mine) is that they would permit private associations to do what they would never allow government to do doesn�t seem so shocking to me. (Saw it on Crescat Sententia.) Three points:
First, it�s true that some na�ve libertarians believe in a solid line between public and private which in many cases is really untenable. My favorite example is covenants not to compete, and the problem of monopoly. As Mark Twain shows in Life on the Mississippi, it is entirely possible to create a monopoly through interlocking private contracts in restraint of trade. This is why the common law, as far back as the Stuart age, held that contracts in restraint of trade were illegal�because they violated the subject�s right to earn a living, as well as depriving society of goods and services. The simple mantra that �only government can create a monopoly� is thus not quite right. I think that libertarians who have really thought about this issue would say that an absolutely pure distinction between public and private is not really tenable. One other example: privatization. Libertarians are generally for it. Yet privatizing government services often creates monopolies. Private corporations built things like railroads, for instance, or lighthouses�and yet they did so only after government gave them a subsidy in the form of allowing them to exercise the power of eminent domain. Is that preferable to having government just come in and do the whole thing? (Coase doesn�t discuss this in his famous lighthouses essay, nor does this article in Cato Journal mention that eminent domain power constituted a form of subsidy to private infrastructure corporations in the 19th century.)
Second, of course we generally would allow private groups to do all sorts of things government can�t do. For instance, we think private people should be able to go to the church of their choice. Government, on the other hand, has no business choosing one church over another. Private groups can choose to be gay, or to patronize one store rather than another, or to endorse the Dodgers over the Mariners. Why? Because private people have the right to do with their own stuff what they want, in general. But if government goes and spends money to support a church, then it�s taking my money away from me and giving it to someone else. We think that�s unfair. Private people have the right to make their own choices with their own stuff. But government doesn�t have any stuff�it can only take stuff from you and me. So it should have to treat us equally, and only when we consent to it. (Now, that�s only the moral objection we have to government. We also think government tends to be far less efficient than private organizations for many reasons.)
So if you join, say, a Harley club, and your club requires you to wear leathers all the time and grow a scraggly beard, that�s fine. But if you buy a house and the government comes in and says �You must do this or that, and you can�t do this or that,� then we think that�s bad, because it�s taking your property away from you (or your successors in interest) without your consent.
Private homeowners associations bother me a lot. I think they�re often little more than packs of petty thugs and busybodies, who stride that line between private contract and government decree. But they�re generally preferable to government because they�re generally more amenable to control by the people who live there, and because, as Will Baude pointed out, you have a greater degree of choice�you can choose (a bit) whether to live there or not. I personally find these answers less than satisfying, but they�re better than just having the government come in and throw you around.
Now, that being said, obviously there are some much more profound differences in our views if you�re going to talk about �freedom from the threat of hunger and poverty,� or �[f]reedom from having a political process dominated entirely by the wealthy,� or �[f]reedom from discrimination.� We don�t believe there is a �freedom from hunger� because what that really means is, a right of one person to make another person give him food. That�s not freedom�that�s slavery. We certainly do believe that there is a freedom from having politics dominated by the wealthy�but we believe that that freedom is best secured through, well, freedom! We think that if the government starts telling people what they can do in their campaigns, that power will fall into the hands of the wealthy, since they can afford to bribe legislators. (Government power routinely falls into the hands of the wealthy. That�s the public choice problem, and that is why libertarians think government should stay away!) The problem with discrimination is a bit more complicated. Some libertarians think government shouldn�t interfere in this, again, because they think that power will fall into abuse�and they think the market will punish discrimination better, anyway. Personally, I think the Thirteenth Amendment does permit the government to create a certain very limited degree of legal prohibitions on private discrimination, and that this degree is consistent with libertarianism.
In any case, I think Ampersand is at least being very superficial in describing libertarianism. We�or, at least, many of us�do understand the danger inherent in things like homeowner�s associations, and we do see that the line between state action and private action is not always a clear one. But we believe in maximizing individual liberty. If individuals exercise that liberty by creating and running, say, corporations, then we think that�s fine and dandy.
(Anyway, even if Ampersand�s criticism was right, it�s hardly the problem with libertarians, is it? I thought we were all sexual deviants who only wanted to use drugs all the time and hated babies and old people.)
First, it�s true that some na�ve libertarians believe in a solid line between public and private which in many cases is really untenable. My favorite example is covenants not to compete, and the problem of monopoly. As Mark Twain shows in Life on the Mississippi, it is entirely possible to create a monopoly through interlocking private contracts in restraint of trade. This is why the common law, as far back as the Stuart age, held that contracts in restraint of trade were illegal�because they violated the subject�s right to earn a living, as well as depriving society of goods and services. The simple mantra that �only government can create a monopoly� is thus not quite right. I think that libertarians who have really thought about this issue would say that an absolutely pure distinction between public and private is not really tenable. One other example: privatization. Libertarians are generally for it. Yet privatizing government services often creates monopolies. Private corporations built things like railroads, for instance, or lighthouses�and yet they did so only after government gave them a subsidy in the form of allowing them to exercise the power of eminent domain. Is that preferable to having government just come in and do the whole thing? (Coase doesn�t discuss this in his famous lighthouses essay, nor does this article in Cato Journal mention that eminent domain power constituted a form of subsidy to private infrastructure corporations in the 19th century.)
Second, of course we generally would allow private groups to do all sorts of things government can�t do. For instance, we think private people should be able to go to the church of their choice. Government, on the other hand, has no business choosing one church over another. Private groups can choose to be gay, or to patronize one store rather than another, or to endorse the Dodgers over the Mariners. Why? Because private people have the right to do with their own stuff what they want, in general. But if government goes and spends money to support a church, then it�s taking my money away from me and giving it to someone else. We think that�s unfair. Private people have the right to make their own choices with their own stuff. But government doesn�t have any stuff�it can only take stuff from you and me. So it should have to treat us equally, and only when we consent to it. (Now, that�s only the moral objection we have to government. We also think government tends to be far less efficient than private organizations for many reasons.)
So if you join, say, a Harley club, and your club requires you to wear leathers all the time and grow a scraggly beard, that�s fine. But if you buy a house and the government comes in and says �You must do this or that, and you can�t do this or that,� then we think that�s bad, because it�s taking your property away from you (or your successors in interest) without your consent.
Private homeowners associations bother me a lot. I think they�re often little more than packs of petty thugs and busybodies, who stride that line between private contract and government decree. But they�re generally preferable to government because they�re generally more amenable to control by the people who live there, and because, as Will Baude pointed out, you have a greater degree of choice�you can choose (a bit) whether to live there or not. I personally find these answers less than satisfying, but they�re better than just having the government come in and throw you around.
Now, that being said, obviously there are some much more profound differences in our views if you�re going to talk about �freedom from the threat of hunger and poverty,� or �[f]reedom from having a political process dominated entirely by the wealthy,� or �[f]reedom from discrimination.� We don�t believe there is a �freedom from hunger� because what that really means is, a right of one person to make another person give him food. That�s not freedom�that�s slavery. We certainly do believe that there is a freedom from having politics dominated by the wealthy�but we believe that that freedom is best secured through, well, freedom! We think that if the government starts telling people what they can do in their campaigns, that power will fall into the hands of the wealthy, since they can afford to bribe legislators. (Government power routinely falls into the hands of the wealthy. That�s the public choice problem, and that is why libertarians think government should stay away!) The problem with discrimination is a bit more complicated. Some libertarians think government shouldn�t interfere in this, again, because they think that power will fall into abuse�and they think the market will punish discrimination better, anyway. Personally, I think the Thirteenth Amendment does permit the government to create a certain very limited degree of legal prohibitions on private discrimination, and that this degree is consistent with libertarianism.
In any case, I think Ampersand is at least being very superficial in describing libertarianism. We�or, at least, many of us�do understand the danger inherent in things like homeowner�s associations, and we do see that the line between state action and private action is not always a clear one. But we believe in maximizing individual liberty. If individuals exercise that liberty by creating and running, say, corporations, then we think that�s fine and dandy.
(Anyway, even if Ampersand�s criticism was right, it�s hardly the problem with libertarians, is it? I thought we were all sexual deviants who only wanted to use drugs all the time and hated babies and old people.)
Accreditation and the First Amendment: Christianity Today reports about a case decided a few weeks ago by a Texas Court of Appeals which touches on the subject of my student note from law school: the interaction of college accreditation with religious freedom. It’s an important issue because it presents a difficult conflict between religious freedom and several “legitimate public interests,” including consumer protection.
The case is HEB Ministries, Inc. v. Texas Higher Educ. Coordinating Bd., __ S.W.3d __, 2003 WL 21705230 (Tex.App.-Austin, Jul 24, 2003), and you can read it online here.
Texas regulates the use of the terms “degree,” and “seminary,” among others. Only schools which are either accredited by a state-recognized accreditation agency, or which are certified by the Higher Education Coordinating Board, are allowed to call themselves (for instance) “seminaries,” or to issue “degrees.” A school may call itself, say, an academy, and issue, say, certificates of completion, and escape regulation, but it can’t issue a “bachelor’s degree” without meeting the requirements either of a recognized accreditation agency or the Board. Now, usually these requirements are pretty neutral: for instance, some accreditation agencies require that the school have a certain percentage of its graduates placed in jobs within a certain amount of time, or require basic safety and cleanliness of the school facilities. Other accreditation agencies, including the Transnational Association of Christian Colleges and Schools, which was the subject of my note, have very specific doctrinal requirements—if the school doesn’t teach the literal truth of Genesis, the school cannot be accredited by TRACS. (My student note is Dinosaur TRACS: The Approaching Conflict Between Establishment Clause Jurisprudence And College Accreditation Procedures, 7 Nexus J. Op. 79 (2002)).
Texas justifies these regulations on the ground that the consumer has a legitimate right to expect that someone with a “bachelor’s degree” has a certain minimum amount of training in certain fields—rather than just buying a fraudulent degree from some Diploma Mill. But HEB Ministries, which runs the Tyndale Theological Seminary and Biblical Institute, argues that this regulation infringes on its First Amendment rights. First, they argued that the regulation violated the Establishment Clause by entangling government with religion. Second, they argued that it violated the Free Exercise Clause by requiring the school to submit to government oversight of its educational program, and by prohibiting them from calling their school a “seminary.” Third, they argued that the regulations violated their Free Speech rights by prohibiting them from using these terms.
The appellate court rejected all of these arguments. The Establishment Clause was not violated, it said, because “Section 61.304 does not authorize state regulation of the content of Tyndale’s educational programs...[or] ‘enter into areas of core religious freedom and autonomy, interfering with and even overruling...internal religious decisions.’” Further, since the law permits a school which is denied state approval for religiously-discriminatory reasons to appeal that decision, said the court, the law “expressly accommodate[s] postsecondary institutions unable to meet the certification or accreditation requirements due to their religious policies. The statutory oversight plan expressly avoids entanglement with the religious policies of such institutions.”
Second, the Court rejected the Free Exercise challenge because the law is a “facially neutral” law of general applicability under Employment Div. v. Smith, so that its incidental effect on a religious practice is not sufficient for striking it down under the Establishment Clause.
Here, however, the court indulged in a bit weaker analysis. HEB argued that the prohibition on the use of the term “seminary” was not facially neutral because it is a synonym for a religious institution, and therefore religious schools were being singled out. The court held otherwise because “‘seminary’ is not an exclusively religious term, nor does the term refer solely to the religious practice of training individuals for the ministry.” The court admitted that “[t]he parties do not identify any current secular seminaries existing in Texas nor are we are aware of any,’ but “decline[d] to infer that by adding the academic term ‘seminary’ to section 61.313, the legislature was targeting religious seminaries.”
Finally, the court rejected the Free Speech argument. Since the speech in question was commercial speech, the court held that the regulation was sufficiently narrowly tailored to advance a substantial government interest. The analysis here was not very deep. Of course, I don’t believe that the concept of “commercial speech” can withstand deep analysis at all, but of the weak definitions of “commercial speech” that have been offered, I’m not certain that “seminary” or “bachelor’s degree” qualify. They do not propose a commercial transaction, for one thing.
The decision doesn’t seem totally crazy, but if I may indulge a slippery slope argument for a while, allow me to reiterate that this is a dangerous issue. One requirement in the Texas code is “that at least twenty-five percent of the course hours offered be drawn from social sciences, natural sciences, mathematics, fine arts, and the humanities.” Now, if they can dictate the curriculum, why can they not set more specific requirements to the curriculum? As I pointed out in my note, some years ago, there was a controversy over one accreditation agency (not in Texas) wanting to add a requirement of “diversity” among the faculty as a condition for accreditation. The idea was shot down, but it’s not hard to imagine—especially since the Federal Government’s recognition of TRACS—accreditation agencies setting more stringent requirements for accreditation. That would not be a problem, except that government decisions, including funding personal scholarships, are based on those accreditation decisions, and the government acts when it recognizes an accreditor. In the HEB case, the state is itself accrediting schools in some cases. Now, on one hand, it seems reasonable to require someone who has a bachelor’s degree to have, say, a few hours of education in the humanities. If it’s fraud to sell white paint labeled as “milk,” it’s also fraud to sell a bachelor’s degree to someone who doesn’t have the training that is generally understood to come with a bachelor’s degree. But on the other, if the government is setting the standards for what qualifies as a bachelor’s degree—much less, a seminary—then it will, to at least some minor level, become a censor on the determinations of private educators—which, in the case of Bible colleges, means of religious groups.
Think about it: many groups want to teach people things that are not true, and want to call that an education. Many of our top colleges teach students quack economic theories, and award degrees based on those theories. Other groups, like the Institute for Creation Research, teach students quack geophysical theories, and award degrees based on those. Various naturopath schools give out unaccredited degrees in herbal remedies and other quack medicines. It would be nice to protect consumers from all of these quacks—except that many people also think that laissez-faire capitalism and other doctrines in which I believe are quackery. That’s exactly why we have the First Amendment—so that we can’t enforce those views on each other, but must settle them through substantive argument. As long as people have the freedom of expression, and freedom of religion, they have the right to believe, and to teach, untruths. (Sorry, Prof. Dennett, but on this point, you’re wrong.) That, at least, is what the First Amendment says. Can we draw a principled distinction, then, which allows a group to teach an untruth and call it a bachelor’s degree on one hand, and on the other, requires them to teach twenty-five percent of the time in the humanities? I don’t think so. This is at least a hard problem, and at most, an unsolvable one.
The case is HEB Ministries, Inc. v. Texas Higher Educ. Coordinating Bd., __ S.W.3d __, 2003 WL 21705230 (Tex.App.-Austin, Jul 24, 2003), and you can read it online here.
Texas regulates the use of the terms “degree,” and “seminary,” among others. Only schools which are either accredited by a state-recognized accreditation agency, or which are certified by the Higher Education Coordinating Board, are allowed to call themselves (for instance) “seminaries,” or to issue “degrees.” A school may call itself, say, an academy, and issue, say, certificates of completion, and escape regulation, but it can’t issue a “bachelor’s degree” without meeting the requirements either of a recognized accreditation agency or the Board. Now, usually these requirements are pretty neutral: for instance, some accreditation agencies require that the school have a certain percentage of its graduates placed in jobs within a certain amount of time, or require basic safety and cleanliness of the school facilities. Other accreditation agencies, including the Transnational Association of Christian Colleges and Schools, which was the subject of my note, have very specific doctrinal requirements—if the school doesn’t teach the literal truth of Genesis, the school cannot be accredited by TRACS. (My student note is Dinosaur TRACS: The Approaching Conflict Between Establishment Clause Jurisprudence And College Accreditation Procedures, 7 Nexus J. Op. 79 (2002)).
Texas justifies these regulations on the ground that the consumer has a legitimate right to expect that someone with a “bachelor’s degree” has a certain minimum amount of training in certain fields—rather than just buying a fraudulent degree from some Diploma Mill. But HEB Ministries, which runs the Tyndale Theological Seminary and Biblical Institute, argues that this regulation infringes on its First Amendment rights. First, they argued that the regulation violated the Establishment Clause by entangling government with religion. Second, they argued that it violated the Free Exercise Clause by requiring the school to submit to government oversight of its educational program, and by prohibiting them from calling their school a “seminary.” Third, they argued that the regulations violated their Free Speech rights by prohibiting them from using these terms.
The appellate court rejected all of these arguments. The Establishment Clause was not violated, it said, because “Section 61.304 does not authorize state regulation of the content of Tyndale’s educational programs...[or] ‘enter into areas of core religious freedom and autonomy, interfering with and even overruling...internal religious decisions.’” Further, since the law permits a school which is denied state approval for religiously-discriminatory reasons to appeal that decision, said the court, the law “expressly accommodate[s] postsecondary institutions unable to meet the certification or accreditation requirements due to their religious policies. The statutory oversight plan expressly avoids entanglement with the religious policies of such institutions.”
Second, the Court rejected the Free Exercise challenge because the law is a “facially neutral” law of general applicability under Employment Div. v. Smith, so that its incidental effect on a religious practice is not sufficient for striking it down under the Establishment Clause.
Here, however, the court indulged in a bit weaker analysis. HEB argued that the prohibition on the use of the term “seminary” was not facially neutral because it is a synonym for a religious institution, and therefore religious schools were being singled out. The court held otherwise because “‘seminary’ is not an exclusively religious term, nor does the term refer solely to the religious practice of training individuals for the ministry.” The court admitted that “[t]he parties do not identify any current secular seminaries existing in Texas nor are we are aware of any,’ but “decline[d] to infer that by adding the academic term ‘seminary’ to section 61.313, the legislature was targeting religious seminaries.”
Finally, the court rejected the Free Speech argument. Since the speech in question was commercial speech, the court held that the regulation was sufficiently narrowly tailored to advance a substantial government interest. The analysis here was not very deep. Of course, I don’t believe that the concept of “commercial speech” can withstand deep analysis at all, but of the weak definitions of “commercial speech” that have been offered, I’m not certain that “seminary” or “bachelor’s degree” qualify. They do not propose a commercial transaction, for one thing.
The decision doesn’t seem totally crazy, but if I may indulge a slippery slope argument for a while, allow me to reiterate that this is a dangerous issue. One requirement in the Texas code is “that at least twenty-five percent of the course hours offered be drawn from social sciences, natural sciences, mathematics, fine arts, and the humanities.” Now, if they can dictate the curriculum, why can they not set more specific requirements to the curriculum? As I pointed out in my note, some years ago, there was a controversy over one accreditation agency (not in Texas) wanting to add a requirement of “diversity” among the faculty as a condition for accreditation. The idea was shot down, but it’s not hard to imagine—especially since the Federal Government’s recognition of TRACS—accreditation agencies setting more stringent requirements for accreditation. That would not be a problem, except that government decisions, including funding personal scholarships, are based on those accreditation decisions, and the government acts when it recognizes an accreditor. In the HEB case, the state is itself accrediting schools in some cases. Now, on one hand, it seems reasonable to require someone who has a bachelor’s degree to have, say, a few hours of education in the humanities. If it’s fraud to sell white paint labeled as “milk,” it’s also fraud to sell a bachelor’s degree to someone who doesn’t have the training that is generally understood to come with a bachelor’s degree. But on the other, if the government is setting the standards for what qualifies as a bachelor’s degree—much less, a seminary—then it will, to at least some minor level, become a censor on the determinations of private educators—which, in the case of Bible colleges, means of religious groups.
Think about it: many groups want to teach people things that are not true, and want to call that an education. Many of our top colleges teach students quack economic theories, and award degrees based on those theories. Other groups, like the Institute for Creation Research, teach students quack geophysical theories, and award degrees based on those. Various naturopath schools give out unaccredited degrees in herbal remedies and other quack medicines. It would be nice to protect consumers from all of these quacks—except that many people also think that laissez-faire capitalism and other doctrines in which I believe are quackery. That’s exactly why we have the First Amendment—so that we can’t enforce those views on each other, but must settle them through substantive argument. As long as people have the freedom of expression, and freedom of religion, they have the right to believe, and to teach, untruths. (Sorry, Prof. Dennett, but on this point, you’re wrong.) That, at least, is what the First Amendment says. Can we draw a principled distinction, then, which allows a group to teach an untruth and call it a bachelor’s degree on one hand, and on the other, requires them to teach twenty-five percent of the time in the humanities? I don’t think so. This is at least a hard problem, and at most, an unsolvable one.
What�s in a name?: Bravery takes many forms.
Aesthetics: Waste blog has a great follow-up on the earlier post about aesthetics. Best line: �it is precisely unrealized potential that is alluring.�
Tuesday, August 12, 2003
Jazz: Last week I bought the new Wayne Shorter album Algeria, which I�m told won all the big jazz awards this year. It�s okay�not fusion, which I expected. It�s much more reminiscent of, say, Nefertiti. This is the first I�ve heard Shorter on his own, though, so I shouldn�t make any general judgments. Still, my favorite Shorter composition is �Footprints� on Miles Smiles. I also purchased Wynton Marsalis, Marsalis Standard Time Vol. 1 It�s also pretty good�I particularly like the first track, �Caravan.� But neither of these CDs really ranks top on my list.
More on big-tent Christian conservatism: A Mormon reader replied to my comments with the following:
�I am extremely dubious of any organization that wants me to enter as a Mormon. They can appeal to me as a conservative, they can appeal to me as a Constitutional Literalist�but the second they start appealing to my religion, warning bells go off in my brain. There was an offshoot of the early Mormon church which recently joined a larger coalition of Christian groups�subsequently, they had to start using crosses on their buildings�the cross being a symbol Mormons have largely considered a rather ironic symbol for Christianity, and have avoided�they had to adopt the Nicene Creed�which is in direct opposition to Joseph Smith�s own account of having seen the Father and the Son side by side�and they had to reject the Book of Mormon as scripture. It�s part of why the mainstream Mormon church stands ready to disassociate itself from the Boy Scouts at any moment�the second any of its affiliations start to dictate how they have to operate, the affiliation will be severed.
�Same goes for me. It�s part of what makes me uncomfortable about the Republican party�they tend to wrap themselves up in the flag, wave their crosses, and take another bite of apple pie when threatened, exactly the way the Democrats will hug a homeless man, wave their keys to their electric cars, and pat a member of minority affectionately on the head when threatened. It�s a way of maintaining loyalty while avoiding substance. I hate that crap.�
I�ll just add that if any group has reason to be wary of the union between church and state, it�s the Church of Latter Day Saints, no?
�I am extremely dubious of any organization that wants me to enter as a Mormon. They can appeal to me as a conservative, they can appeal to me as a Constitutional Literalist�but the second they start appealing to my religion, warning bells go off in my brain. There was an offshoot of the early Mormon church which recently joined a larger coalition of Christian groups�subsequently, they had to start using crosses on their buildings�the cross being a symbol Mormons have largely considered a rather ironic symbol for Christianity, and have avoided�they had to adopt the Nicene Creed�which is in direct opposition to Joseph Smith�s own account of having seen the Father and the Son side by side�and they had to reject the Book of Mormon as scripture. It�s part of why the mainstream Mormon church stands ready to disassociate itself from the Boy Scouts at any moment�the second any of its affiliations start to dictate how they have to operate, the affiliation will be severed.
�Same goes for me. It�s part of what makes me uncomfortable about the Republican party�they tend to wrap themselves up in the flag, wave their crosses, and take another bite of apple pie when threatened, exactly the way the Democrats will hug a homeless man, wave their keys to their electric cars, and pat a member of minority affectionately on the head when threatened. It�s a way of maintaining loyalty while avoiding substance. I hate that crap.�
I�ll just add that if any group has reason to be wary of the union between church and state, it�s the Church of Latter Day Saints, no?
The gay bishop: Of course conservatives are not very pleased with the Episcopal Church�s election of a gay man to be a bishop, but this is revealing another example of something I�ve mentioned before: religious conservatism, which tries hard to portray itself as a big tent coalition of �just religious� folks, or �just Christian� folks, is built on ignoring genuine and extremely important religious differences between those who are in that tent.
Mormons continue to vote, by and large, for the Republican party, even while that party becomes more and more Catholic�seemingly ignorant of the profound conflict between those two. (And just recently, Feddie over at Southern Appeal said he was considering converting to Catholicism because the Pope denounced homosexuality as a sin! Now...I would think that one should convert to Catholicism only on a pretty convincing showing�either through theology or through a direct revelation�that Marianism and the saints and the trinity and transubstantiation and whatnot were all true, and that Protestantism was really heresy. Feddie�s converting based on a political and cultural dispute, rather than a genuine revelation from God? Does this not bother any Christians out there?*)
Anyway, scratch the surface of the apparent unity of �god-fearing conservatives� and you find a profound contempt for certain religious doctrines. Now, that�s fine with me, but it shouldn�t be fine with those who sincerely hold those religious doctrines. The contempt with which the editors of National Review Online dismiss, for instance, Unitarians, (not to mention simply ignoring the existence of liberal Quakers or even Mormons, in large part) or with which Mark Steyn dismisses the Episcopalians ought to raise some serious questions. Steyn certainly has a right to say that Episcopalianism has a �gay fetish,� and is �peculiar� and is �dying��he has a right to any other ad hominem attack he wishes to levy, and he also has a right to disagree with their theology. What I find troublesome is what appears to be Steyn�s dismissal of the possibility that Episcopalians can have a sincere theological justification for their views regarding homosexuality. Instead, Steyn believes that they are making �a painful attempt to square the awkward Biblical strictures on homosexuality with Bishop Robinson�s vigorous sex life.� Again, as a theological matter, it�s perfectly fine for him to think that�but it�s important, I think, for religious conservatives to see that this is a theological argument: and those of you who contribute to the allegedly nondeminational conservative religious alliance should keep in mind that Steyn, or others among your allies, are just as likely to dismiss your theology as a �painful attempt� the next time around. You Mormons for instance�the Catholics who are coming to dominate the Republican party will be quite eager to dismiss the Book of Mormon as a �painful attempt.�
Normally, these sorts of theological arguments are not a big deal to those of us who think you�re all crazy. But when you�re talking about a political coalition, things get more dangerous. There are many people, for instance, who argue that the government does have the right to endorse �religion in general,� just not any particular faith. Some even argue that the government has the right to endorse Christianity, just not any particular sect. The problem is, what is �religion in general�? Is the trinity �religion in general�? What about the eucharist? What about the Book of Mormon? Are these Christianity �in general,� or are they only a doctrines of a particular sect? Those who dismiss the concept of separation of church and state�or who reject Everson v. Bd. of Ed.�with a contemptuous wave of the hand, insisting that �the phrase separation of church and state doesn�t appear in the constitution� are ignoring serious religious differences�and expressing contempt for those who sincerely believe in these doctrines. Or are there no people who seriously believe that the Episcopal church�s actions are consistent with the will of God? Why is it that I would be called a bigot for contemptuously rejecting certain Catholic doctrines, like the notion of praying for a saint to intercede on my behalf with God�a notion which, by the way, I do consider to be profoundly heretical�and yet it�s okay for Steyn to dismiss the notion that anyone could seriously believe that a man can be gay and a bishop?
*--Update: �not being altogether serious�? About something like that? (And is he saying that the Episcopal Church does not believe �that Jesus Christ is the risen Savior and that all who believe in Him (and accept Him as Lord and Savior) shall not perish but have everlasting life�?) Anyway, I have no problem with Feddie�s condemnation of homosexuality on Christian grounds; in fact, I think he�s right as a matter of Biblical interpretation. My point is�the Catholic church also thinks that the Bible condemns Mormonism, and yet many Mormons and Catholics believe the government should promote �religion in general,� ignoring the fact that eventually, that coalition�s going to break up, and if, by that time, the government has come to promote �religion in general,� then these sorts of Biblical interpretations will take on a far more obvious relevance.
Another Update: Reader Jon Rowe points out that he made a similar point in a series of posts here.
Mormons continue to vote, by and large, for the Republican party, even while that party becomes more and more Catholic�seemingly ignorant of the profound conflict between those two. (And just recently, Feddie over at Southern Appeal said he was considering converting to Catholicism because the Pope denounced homosexuality as a sin! Now...I would think that one should convert to Catholicism only on a pretty convincing showing�either through theology or through a direct revelation�that Marianism and the saints and the trinity and transubstantiation and whatnot were all true, and that Protestantism was really heresy. Feddie�s converting based on a political and cultural dispute, rather than a genuine revelation from God? Does this not bother any Christians out there?*)
Anyway, scratch the surface of the apparent unity of �god-fearing conservatives� and you find a profound contempt for certain religious doctrines. Now, that�s fine with me, but it shouldn�t be fine with those who sincerely hold those religious doctrines. The contempt with which the editors of National Review Online dismiss, for instance, Unitarians, (not to mention simply ignoring the existence of liberal Quakers or even Mormons, in large part) or with which Mark Steyn dismisses the Episcopalians ought to raise some serious questions. Steyn certainly has a right to say that Episcopalianism has a �gay fetish,� and is �peculiar� and is �dying��he has a right to any other ad hominem attack he wishes to levy, and he also has a right to disagree with their theology. What I find troublesome is what appears to be Steyn�s dismissal of the possibility that Episcopalians can have a sincere theological justification for their views regarding homosexuality. Instead, Steyn believes that they are making �a painful attempt to square the awkward Biblical strictures on homosexuality with Bishop Robinson�s vigorous sex life.� Again, as a theological matter, it�s perfectly fine for him to think that�but it�s important, I think, for religious conservatives to see that this is a theological argument: and those of you who contribute to the allegedly nondeminational conservative religious alliance should keep in mind that Steyn, or others among your allies, are just as likely to dismiss your theology as a �painful attempt� the next time around. You Mormons for instance�the Catholics who are coming to dominate the Republican party will be quite eager to dismiss the Book of Mormon as a �painful attempt.�
Normally, these sorts of theological arguments are not a big deal to those of us who think you�re all crazy. But when you�re talking about a political coalition, things get more dangerous. There are many people, for instance, who argue that the government does have the right to endorse �religion in general,� just not any particular faith. Some even argue that the government has the right to endorse Christianity, just not any particular sect. The problem is, what is �religion in general�? Is the trinity �religion in general�? What about the eucharist? What about the Book of Mormon? Are these Christianity �in general,� or are they only a doctrines of a particular sect? Those who dismiss the concept of separation of church and state�or who reject Everson v. Bd. of Ed.�with a contemptuous wave of the hand, insisting that �the phrase separation of church and state doesn�t appear in the constitution� are ignoring serious religious differences�and expressing contempt for those who sincerely believe in these doctrines. Or are there no people who seriously believe that the Episcopal church�s actions are consistent with the will of God? Why is it that I would be called a bigot for contemptuously rejecting certain Catholic doctrines, like the notion of praying for a saint to intercede on my behalf with God�a notion which, by the way, I do consider to be profoundly heretical�and yet it�s okay for Steyn to dismiss the notion that anyone could seriously believe that a man can be gay and a bishop?
*--Update: �not being altogether serious�? About something like that? (And is he saying that the Episcopal Church does not believe �that Jesus Christ is the risen Savior and that all who believe in Him (and accept Him as Lord and Savior) shall not perish but have everlasting life�?) Anyway, I have no problem with Feddie�s condemnation of homosexuality on Christian grounds; in fact, I think he�s right as a matter of Biblical interpretation. My point is�the Catholic church also thinks that the Bible condemns Mormonism, and yet many Mormons and Catholics believe the government should promote �religion in general,� ignoring the fact that eventually, that coalition�s going to break up, and if, by that time, the government has come to promote �religion in general,� then these sorts of Biblical interpretations will take on a far more obvious relevance.
Another Update: Reader Jon Rowe points out that he made a similar point in a series of posts here.
God strikes gay radio station with lightning: Yes, that�s what it says. So�is God a superseding intervening Cause, or a joint Tortfeasor?
More on poetry: Mr. Wolfson has an excellent post critiquing my comments on formlessness in poetry. We agree that at least some measure of formal order is required for a work of art to be something other than noise, but�and I suppose this is just the question that has preoccupied artists of all types forever�just what constraints are too confining, or not confining enough, has always been the point of contention.
I have to confess that Wolfson�s right when he says �Isn�t saying �Whitman developed his own constraints,� or something like that, just a way of acknowledging that Whitman sort of breaks your theory, but that you like him anyway?� Or at least, I�m not sure how to rebut that. Whitman�s poetry is not formless�he chose his words for sound in a way that does find a rhythm and keeps the reader�s eyes moving along the page, but which is also sensible, and accomplishes the substantive point he sought to make. (Which was mostly �I�m a really great guy, and this is a really great country.�) Wolfson points to �the Exquisite Sonnet Project, one sonnet from which begins
I wish I had a popsicle as sweet
As kisses from impulsive androgynes
With tentacles the hue of fresh-tossed wheat
Extending gently, tracing tender lines.�
I would have pointed to �Jabberwocky,� which (says Alice) fills the reader�s mind with ideas, only we don�t know what they are. In any case, these poems make perfect formal sense without expressing a content, or at least, not a content sensible to the reader. Are they just esoteric, or are they totally senseless? If the latter, do they have value? I would say yes, but only in the way that the sketches of an artist have value�as a celebration of artifact, rather than being, in itself, a work of art: these demonstrate the writer�s deftness with the language without making any real artistic statement (except insofar as that deftness itself might be a statement, but I find that usually rather boring). In any case, I agree with Jacob Bronowski that a poem must have content to survive as art--he argues specifically that a poem must draw a likeness between two different things which points up to some constant between those things. To paraphrase Pope, �True [art] is nature to advantage dress�d, / What oft was thought but ne�er so well express�d.�
Perhaps artistic forms serve as a prop for real creativity, rather than a spur to genuine creativity, as I argued in my earlier post. When Milton dropped rhyme, for instance, that forced him to be twice as good in his word choice if he was to make the poem at all enjoyable. And free verse poetry is extremely easy to write badly�and very, very hard to write well.
In any case, I think the analogy to jazz is a very instructive one. If done well, modern jazz, which defies many of the old formal rules of music making, can be really great�like Miles Smiles, for instance. But it�s extremely hard to do it well. More formal jazz, like Dixieland, on the other hand, can be very soothing, but after a while it all starts to sound the same. What makes us enjoy one piece of music over another remains almost entirely a mystery�although it�s not actually a matter solely of personal taste�and thus what one finds liberating in poetry, or noise in poetry, is also largely mysterious, I suppose. I tend toward what one might call a classical view�that art discovers its limits through experimentation. Most new works of art are therefore failures; they don�t �work� for whatever reason it is that makes a piece of art work or not work. This is not because society is conditioned in a manner incompatible with the new work (although sometimes that might be the case), but because just as with a science of materials, we find structures, rather than simply conjuring them. Nevertheless, drawing a line between form and content is really impossible; certainly poets of old would have thought it a violation of form to use a word that made no sense.
Here�s Bronowski: �[L]iberty is not a passport to chaos. When men break one restraint they do not, as its defenders always fear, enter a limitless tohubohu of free verse and free love. The new art, the new science, is not absolutely open; it has its own necessities, and its first task is to find them. Often the new art is so solemn about this, that, like Le Corbusier�s designs, it begins by looking more puritan than the manner which it exploded�. [S]cruples and boundaries there always are, to every gain in intellectual freedom. There is nothing contradictory in this, and it does not make discovery pointless. On the contrary, the physical ease which modern science has added to our daily lives proves over again the lesson of Leonardo: that the more precisely we learn the limits which nature has set, the greater our confidence and with it our liberty of action within them. Freedom is not a denial of nature (as medieval magic thought) but her exploration�. What I have been putting to you is the central issue of our age. We all hanker for beauty expressed as freedom of choice, because freedom (this is the crux of my aesthetic) is an emotional need as real as the physical need for rest, comfort, and gadgets. We all fear and feel the contradiction of a uniform society and a threatening world. The tension is old as man, and gives his thought its spring, its creative invention, in art and science together.
�But now our generation has begun to make a dangerous distinction: it has separated these two modes of original thought, and identified art with freedom and science with its inevitable limitations. This identification is false, as I have shown in architecture. It is unhealthy for the artist, because it makes him narrow and the public taste narrow�but, alas, a century apart. It is bad for the scientist, whom it makes dictatorial, irresponsible, and philistine. And it is a disaster for mankind.� Jacob Bronowski, Architecture As A Science And Architecture As An Art, in The Visionary Eye 45, 50-55 (P. Ariotti, & R. Bronowski eds. 1978)
I have to confess that Wolfson�s right when he says �Isn�t saying �Whitman developed his own constraints,� or something like that, just a way of acknowledging that Whitman sort of breaks your theory, but that you like him anyway?� Or at least, I�m not sure how to rebut that. Whitman�s poetry is not formless�he chose his words for sound in a way that does find a rhythm and keeps the reader�s eyes moving along the page, but which is also sensible, and accomplishes the substantive point he sought to make. (Which was mostly �I�m a really great guy, and this is a really great country.�) Wolfson points to �the Exquisite Sonnet Project, one sonnet from which begins
I wish I had a popsicle as sweet
As kisses from impulsive androgynes
With tentacles the hue of fresh-tossed wheat
Extending gently, tracing tender lines.�
I would have pointed to �Jabberwocky,� which (says Alice) fills the reader�s mind with ideas, only we don�t know what they are. In any case, these poems make perfect formal sense without expressing a content, or at least, not a content sensible to the reader. Are they just esoteric, or are they totally senseless? If the latter, do they have value? I would say yes, but only in the way that the sketches of an artist have value�as a celebration of artifact, rather than being, in itself, a work of art: these demonstrate the writer�s deftness with the language without making any real artistic statement (except insofar as that deftness itself might be a statement, but I find that usually rather boring). In any case, I agree with Jacob Bronowski that a poem must have content to survive as art--he argues specifically that a poem must draw a likeness between two different things which points up to some constant between those things. To paraphrase Pope, �True [art] is nature to advantage dress�d, / What oft was thought but ne�er so well express�d.�
Perhaps artistic forms serve as a prop for real creativity, rather than a spur to genuine creativity, as I argued in my earlier post. When Milton dropped rhyme, for instance, that forced him to be twice as good in his word choice if he was to make the poem at all enjoyable. And free verse poetry is extremely easy to write badly�and very, very hard to write well.
In any case, I think the analogy to jazz is a very instructive one. If done well, modern jazz, which defies many of the old formal rules of music making, can be really great�like Miles Smiles, for instance. But it�s extremely hard to do it well. More formal jazz, like Dixieland, on the other hand, can be very soothing, but after a while it all starts to sound the same. What makes us enjoy one piece of music over another remains almost entirely a mystery�although it�s not actually a matter solely of personal taste�and thus what one finds liberating in poetry, or noise in poetry, is also largely mysterious, I suppose. I tend toward what one might call a classical view�that art discovers its limits through experimentation. Most new works of art are therefore failures; they don�t �work� for whatever reason it is that makes a piece of art work or not work. This is not because society is conditioned in a manner incompatible with the new work (although sometimes that might be the case), but because just as with a science of materials, we find structures, rather than simply conjuring them. Nevertheless, drawing a line between form and content is really impossible; certainly poets of old would have thought it a violation of form to use a word that made no sense.
Here�s Bronowski: �[L]iberty is not a passport to chaos. When men break one restraint they do not, as its defenders always fear, enter a limitless tohubohu of free verse and free love. The new art, the new science, is not absolutely open; it has its own necessities, and its first task is to find them. Often the new art is so solemn about this, that, like Le Corbusier�s designs, it begins by looking more puritan than the manner which it exploded�. [S]cruples and boundaries there always are, to every gain in intellectual freedom. There is nothing contradictory in this, and it does not make discovery pointless. On the contrary, the physical ease which modern science has added to our daily lives proves over again the lesson of Leonardo: that the more precisely we learn the limits which nature has set, the greater our confidence and with it our liberty of action within them. Freedom is not a denial of nature (as medieval magic thought) but her exploration�. What I have been putting to you is the central issue of our age. We all hanker for beauty expressed as freedom of choice, because freedom (this is the crux of my aesthetic) is an emotional need as real as the physical need for rest, comfort, and gadgets. We all fear and feel the contradiction of a uniform society and a threatening world. The tension is old as man, and gives his thought its spring, its creative invention, in art and science together.
�But now our generation has begun to make a dangerous distinction: it has separated these two modes of original thought, and identified art with freedom and science with its inevitable limitations. This identification is false, as I have shown in architecture. It is unhealthy for the artist, because it makes him narrow and the public taste narrow�but, alas, a century apart. It is bad for the scientist, whom it makes dictatorial, irresponsible, and philistine. And it is a disaster for mankind.� Jacob Bronowski, Architecture As A Science And Architecture As An Art, in The Visionary Eye 45, 50-55 (P. Ariotti, & R. Bronowski eds. 1978)
ID: Brian Leiter has a good post about biology textbooks in Texas being turned into sermons at the behest of state officials. (Thanks to Greg Goelzhauser). He suggests contacting Holt, Rinehart and Winston, but you should also check out the National Center for Science Education, one of two nonprofit foundations to which I regularly and proudly contribute. NCSE fights to preserve scientific integrity against nonsense like this which masquerades as science.
Monday, August 11, 2003
Encyclopedia: From the first edition of the Encyclopedia Britannica, published in 1771: �CALLIFORNIA [sic]: A large country of the Weft Indies, lying between 116 and 138 W. long. and between 23 and 46 N. lat. It is uncertain whether it be a peninfula or an ifland.� (Vol. 2, p. 10).
He�s felt it: Ah, Will Baude has felt the tingle. When I was in college, Clint Bolick gave a speech about the Institute for Justice�s work�probably the same speech Baude heard. I decided then and there to go to law school, and work for that man. And I did it�after my first year, I clerked there (although, not being a Koch fellow, I paid for it all myself, and actually learned stuff instead of partying). So I said, �Well, here I am, I don�t have to go back for my second and third years of law school now, right?� But he said no�darn. Would have saved me a lot of money�.
Anyway, Mr. Bolick is one of the finest people I have ever known, and my true idol. If you have ever heard him give that talk, you know what I mean, and you know how proud I am to be working on the economic liberties project at the Pacific Legal Foundation, as one of IJ�s allies in protecting the rights of all Americans to earn a living and to keep the fruits of their labor secure from the arbitrary control of government.
Anyway, Mr. Bolick is one of the finest people I have ever known, and my true idol. If you have ever heard him give that talk, you know what I mean, and you know how proud I am to be working on the economic liberties project at the Pacific Legal Foundation, as one of IJ�s allies in protecting the rights of all Americans to earn a living and to keep the fruits of their labor secure from the arbitrary control of government.
Conrad: I just finished Freya of the Seven Isles, a novelette by Joseph Conrad, of whom I am an unwavering fanatic. Freya did not disappoint, and was almost classic Conrad; the powerful, romantic story, the compelling characters, the tragic ending: the only thing missing was the surging prose style so obvious in works like Heart of Darkness or The Nigger of The Narcissus. That�s because Freya came much later in his career; it was published in 1912, 13 years after Heart of Darkness, and at a time when Conrad was producing works with much stronger plots, such as Under Western Eyes.
That�s not to say that Freya lacks Conrad�s expert use of language�. �Jasper, his elbow in the main rigging, and his head leaning against his hand, thought of Freya. Everything in the world reminded him of her. The beauty of the loved woman exists in the beauties of nature. The swelling outlines of the hills, the curves of a coast, the free sinuosities of a river are less suave than the harmonious lines of her body, and when she moves, gliding lightly, the grace of her progress suggests the power of occult forces which rule the fascinating the aspects of the visible world.� Jeffrey Meyers calls Freya Conrad�s best love story, and I think that�s right, but I must agree with the character of Nelson (or Nielsen), that Freya did not really love Jasper. Read it for yourself and make up your mind. And as you do, ask yourself�as my ninth grade English teacher, Mr. McCafferty would have said�why does Freya suffer from anemia? Why not some other disease? Anyway, I know Freya did not love Jasper, because I knew Freya, once. Of course, that was not her name, and she did not live in the Seven Isles, but I knew her nonetheless. (She�s on her fifth fianc�, now�.)
Which reminds me of a bizarre conversation I had today with a lady friend:
Me: �So, are you going to marry D.?��D being the man she�s dated for several years now.
She: (in a non-committal, sing-song tone) �I don�t know�.�
Me: �No?�
She: �I think I just adore him too much.�
If that makes any sense to you, you�re probably Freya.
That�s not to say that Freya lacks Conrad�s expert use of language�. �Jasper, his elbow in the main rigging, and his head leaning against his hand, thought of Freya. Everything in the world reminded him of her. The beauty of the loved woman exists in the beauties of nature. The swelling outlines of the hills, the curves of a coast, the free sinuosities of a river are less suave than the harmonious lines of her body, and when she moves, gliding lightly, the grace of her progress suggests the power of occult forces which rule the fascinating the aspects of the visible world.� Jeffrey Meyers calls Freya Conrad�s best love story, and I think that�s right, but I must agree with the character of Nelson (or Nielsen), that Freya did not really love Jasper. Read it for yourself and make up your mind. And as you do, ask yourself�as my ninth grade English teacher, Mr. McCafferty would have said�why does Freya suffer from anemia? Why not some other disease? Anyway, I know Freya did not love Jasper, because I knew Freya, once. Of course, that was not her name, and she did not live in the Seven Isles, but I knew her nonetheless. (She�s on her fifth fianc�, now�.)
Which reminds me of a bizarre conversation I had today with a lady friend:
Me: �So, are you going to marry D.?��D being the man she�s dated for several years now.
She: (in a non-committal, sing-song tone) �I don�t know�.�
Me: �No?�
She: �I think I just adore him too much.�
If that makes any sense to you, you�re probably Freya.
Sandefur in Italian!: I've been quoted, in translation, in a paper here published by the International Centre for Economic Research�Carlo Littieri, La questione del monopolio tra Stato e mercato un'indagine su Bruno Leoini. (See p. 26, n. 58)
Hm...: I think it has happened. I am now the only Californian not running for governor.
Pledge requirement: Public school teachers in Fort Collins, Colorado (site, as you�ll recall, of Dan�s Bake Sale), are now required to lead students in the Pledge of Allegiance. (Saw it on How Appealing.) According to the article, �Teachers and students who object on religious grounds will be exempt�.� That suggests that the law would survive West Virginia Board of Education v. Barnette, and perhaps Newdow v. U.S. Congress. But could it survive Santa Fe v. Doe, with its �psycho-coercion� theory? (Which, as I�ve probably mentioned, I consider a total crock?)
Sunday, August 10, 2003
Geek test: I took the Geek Test to which I was pointed by Annika�s blog. (I think I�m falling in love with that girl�). I scored �23.07692% - Geek� which is far, far better than I expected to do. Fortunately the test did not require me to mention the time I met Leonard Nimoy while I was standing there in my Starfleet Uniform. (Hey! I was in high school! Stop laughing!)
Natural law: Southern Appeal pointed to Robert George�s recent commencement address at my alma mater. Although as an atheist, I do not believe the natural order of the universe was created by a conscious Personality, and although I believe there is a legitimate natural-rights defense of abortion rights, I still agree almost entirely with George�s eloquent words. I would merely add�were I to be so presumptuous�that while obeying one�s passions and whims without reason is indeed a type of slavery, we must never arrogate to ourselves the assumption that we know the natural law and all of its implications a priori. Just as with the natural laws of gravity or of inflation, we must make experiments, measurements, and assessments�we must allow people to discover the natural law and its implications in their lives for themselves. Natural law does not permit us to prescribe to people all the boundaries of their lives, and say to them �you must do as I say, because this is the natural law.� That, after all, is precisely what the defenders of slavery said. Rather, we must discover the natural law. And the inalienable right of all human beings to discover that law�and even, in many cases, to suffer from the violation of that law�is the very definition of freedom. And, because all people have this right, this means that people are free to discover the natural law, and even to violate it to their own suffering, so long as they leave others free to do so as well.
As John Milton, the greatest of all Christian libertarians, wrote, �How great a virtue is temperance, how much of moment through the whole life of man? yet God committs the managing so great a trust, without particular Law or prescription, wholly to the demeanour of every grown man�. For those actions which enter into a man, rather then issue out of him, [that is, for acts which do not harm unconsenting third parties] and therefore defile not, God uses not to captivat under a perpetuall childhood of prescription, but trusts [man] with the gift of reason to be his own chooser�. Though ye take from a covetous man all his treasure, he has yet one jewell left, ye cannot bereave him of his covetousnesse. Banish all objects of lust, shut up all youth into the severest discipline that can be exercis�d in any hermitage, ye cannot make them chaste, that came not thither so: such great care and wisdom is requir�d to the right managing of this point. Suppose we could expell sin by this means; look how much we thus expell of sin, so much we expell of vertue: for the matter of them both is the same; remove that, and ye remove them both alike. This justifies the high providence of God, who though he command us temperance, justice, continence, yet powrs out before us ev�n to a profusenes all desirable things, and gives us minds that can wander beyond all limit and satiety.�
As John Milton, the greatest of all Christian libertarians, wrote, �How great a virtue is temperance, how much of moment through the whole life of man? yet God committs the managing so great a trust, without particular Law or prescription, wholly to the demeanour of every grown man�. For those actions which enter into a man, rather then issue out of him, [that is, for acts which do not harm unconsenting third parties] and therefore defile not, God uses not to captivat under a perpetuall childhood of prescription, but trusts [man] with the gift of reason to be his own chooser�. Though ye take from a covetous man all his treasure, he has yet one jewell left, ye cannot bereave him of his covetousnesse. Banish all objects of lust, shut up all youth into the severest discipline that can be exercis�d in any hermitage, ye cannot make them chaste, that came not thither so: such great care and wisdom is requir�d to the right managing of this point. Suppose we could expell sin by this means; look how much we thus expell of sin, so much we expell of vertue: for the matter of them both is the same; remove that, and ye remove them both alike. This justifies the high providence of God, who though he command us temperance, justice, continence, yet powrs out before us ev�n to a profusenes all desirable things, and gives us minds that can wander beyond all limit and satiety.�
Now I gotta one for-a you: (That�s a little Duck Soup quote for you there.) This one is apparently an actual case working its way up the California legal ladder at this moment, but I can�t vouch for my memory of all the facts, so just regard this as a hypothetical. (Thanks to Karl for this one.)
A guy goes to a health club and signs a waiver absolving the club of liability for injuries sustained on the premises. But he knows that the staff at the health club is trained in CPR. One day, as he�s doing exercises, he has a heart attack and collapses. A nearby patron of the health club happens to be an off-duty paramedic, and he rushes over to aid the victim�whereupon employees of the health club jump up and hold back the paramedic, preventing him from coming to the aid of the victim, while on-duty paramedics are on their way. The employees do not administer CPR, because they�re busy holding back the off-duty paramedic. The on-duty paramedics arrive, take the victim (still alive) to the hospital�and the man dies in the emergency room.
Now, let�s stipulate that the victim would have survived had the off-duty paramedic been able to help him.
It�s obvious that the health-club employees are liable for negligence because they run the shop, they�re trained in CPR, and failed to come to his aid. I suspect this may overcome the waiver of liability that the victim signed, but I don�t really know. Let�s just assume that the waiver is no good for some reason. Here�s the question: are the employees liable for holding back the off-duty paramedic? And are they morally culpable? And does it make a difference (and if so what) whether the employees knew he was an off-duty paramedic? (I don�t know if they knew or not.)
What do you say, Mr. Baude? Mr. Wolfson? Prof. Solum? Anyone? Write your answers legibly in a bluebook and email them to me at Tmsandefur@aol.com.
A guy goes to a health club and signs a waiver absolving the club of liability for injuries sustained on the premises. But he knows that the staff at the health club is trained in CPR. One day, as he�s doing exercises, he has a heart attack and collapses. A nearby patron of the health club happens to be an off-duty paramedic, and he rushes over to aid the victim�whereupon employees of the health club jump up and hold back the paramedic, preventing him from coming to the aid of the victim, while on-duty paramedics are on their way. The employees do not administer CPR, because they�re busy holding back the off-duty paramedic. The on-duty paramedics arrive, take the victim (still alive) to the hospital�and the man dies in the emergency room.
Now, let�s stipulate that the victim would have survived had the off-duty paramedic been able to help him.
It�s obvious that the health-club employees are liable for negligence because they run the shop, they�re trained in CPR, and failed to come to his aid. I suspect this may overcome the waiver of liability that the victim signed, but I don�t really know. Let�s just assume that the waiver is no good for some reason. Here�s the question: are the employees liable for holding back the off-duty paramedic? And are they morally culpable? And does it make a difference (and if so what) whether the employees knew he was an off-duty paramedic? (I don�t know if they knew or not.)
What do you say, Mr. Baude? Mr. Wolfson? Prof. Solum? Anyone? Write your answers legibly in a bluebook and email them to me at Tmsandefur@aol.com.
Sabotage Cont�d: I looked through one of my old tort books, and found the case of Dillon v. Twin State G. & E. Co., 163 A. 111 (N.H. 1932), in which a boy on a bridge tripped and fell, and as he plummeted to the ground, he reached out for something to grab�and grabbed a powerline which electrocuted him. Now, the electric company was not responsible for the boy falling, but was held negligent for not somehow keeping the powerlines out of reach. The court noted that if the boy had not grabbed the wires, he would still have died from the fall, and held that this was relevant not only to the amount of damages but also to the question of liability in the first place:
�The circumstances of the decedent�s death give rise to an unusual issue of its cause. In leaning over from the girder and losing his balance he was entitled to no protection from the defendant to keep from falling. Its only liability was in exposing him to the danger of charged wires. If but for the current in the wires he would have fallen down on the floor of the bridge or into the river, he would without doubt have been either killed or seriously injured. Although he died from electrocution, yet, if by reason of his preceding loss of balance he was bound to fall except for the intervention of the current, he either did not have long to live or was to be maimed. In such an outcome of his loss of balance, the defendant deprived him, not of a life of normal expectancy, but of one too short to be given pecuniary allowance, in one alternative, and not of normal, but of limited, earning capacity, in the other.
�If it were found that he would have thus fallen with death probably resulting, the defendant would not be liable, unless for conscious suffering found to have been sustained from the shock. In that situation his life or earning capacity had no value. To constitute actionable negligence there must be damage, and damage is limited to those elements the statute prescribes.
�If it should be found that but for the current he would have fallen with serious injury, then the loss of life or earning capacity resulting from the electrocution would be measured by its value in such injured condition. Evidence that he would be crippled would be taken into account in the same manner as though he had already been crippled. His probable future but for the current thus bears on liability as well as damages.� Id. at 114-15.
Note that this is the opposite argument that I made earlier, in my brief hypothetical about the bus accident. (Not to mention, it supports Baude�s defense of Raymond.) Here, the court is saying that the electric company could use the inevitability of the boy�s death from the fall as an argument that they should not be liable at all for the injury caused by the electrocution. Now, I find this argument unpersuasive, for the simple reason that �[i]n the long run we are all dead.� Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 356 (2002) (Thomas & Scalia, JJ., dissenting) (quoting John Maynard Keynes, Monetary Reform 88 (1924)). I could die today in a fiery car wreck, but that should not cut of liability for the negligence of, say, the manufacturers of my coffee maker if it should suddenly burst into flames as my morning coffee is brewing. This goes to forseeability because, to the manufacturers of the coffee maker, my sudden death is equally foreseeable to my continuing alive; but it also goes to duty because the manufacturers shouldn�t be allowed to make faulty coffee makers on the excuse that everybody�s gotta die anyway, so they may as well die from our faulty coffee makers. In the same way, the duty to treat people reasonably should not be excused by the possibility of the death of the victim, no matter how imminent.* So Raymond should not be able to go about shooting people who are about to get hit by a bus and then excuse himself on the grounds that the bus was gonna hit them anyway. So I don�t think the electric company�or the person with the sleeping pills�should be able to say �I should not be liable, because the victim was going to die anyhow.� (This is only speaking to the question of liability. I do agree that the court ought to take imminent likelihood of death into consideration as to the question of damages resulting from that liability, because tort law should compensate for what is actually lost, and if the boy�s going to plunge to his death in a few minutes, his life is worth less than a person who is probably going to survive for a long time.)
Baude�s most recent hypothetical is, I think, easier than the earlier ones, because it is just replacing joint intentional tortfeasors with one intentional tortfeasor and one negligent tortfeasor. He writes,
�suppose things go on as before. Our star tennis player needs his medicine, and player one sneaks in and replaces them with cyanide. Player two sneaks in and simply takes the cyanide pills away. Our star tennis player, robbed of his medicine, gets quite sick, but is not dead yet. Who is morally responsible for his illness? If he dies, who is morally responsible for his death? How do these answers change depending on player two�s motivations? Now, after all, he can argue �no matter what I thought I was doing, what I was actually doing was taking poison away from the star player. So I clearly did a good thing, whether I meant to or not.��
First the legal analysis. The first poisoner has attempted murder, and can be convicted of a crime. But his tort liability is cut off by the unforeseeable, intervening act of player two, whom I�ve called Raymond. Now, Raymond�s act is negligent no matter what his motivation. By taking away a medicine bottle from the locker of a tennis player�and I presume the bottle is labeled �medicine,� but that is not necessary to establish liability�he has acted unreasonably. He owes a duty to act reasonably, which is clearly breached by removing a bottle of medicine from someone�s locker, where it is pretty obvious that such a thing involves a risk of harm to the tennis player. Even if Raymond knew the pills were cyanide, and he was trying heroically to save the tennis player from being poisoned, he did so unreasonably�just like throwing an anchor chain to a drowning man. And if he didn�t know they were poison, he�s still at least negligent.
Raymond might is also liable for an intentional tort, of trespass to chattels, but here his motivations might become relevant: if he was trying hamfistedly to protect the tennis player from a poisoning, he could use that as a defense to the tort, and maybe the court would let him off. But that�s an affirmative defense, which means Raymond must admit that he did do the thing.
As to moral culpability, I think it depends completely on Raymond�s subjective intentions. If he intended to take away medicine to harm the tennis player, not knowing the pills were cyanide, he is still trying to harm the tennis player, in a potentially deadly manner. If he was trying to save the tennis player from poison, in an admittedly clumsy fashion, then I think we would be right to regard that as a poor attempt at an admirable action. When I was a young boy, I once took apart my father�s 100 year old pocketwatch, because I had read about how Thomas Edison had once fixed a pocketwatch when he was a young boy. I, not being an Edison, managed merely to destroy the pocketwatch�of which my father was not quite so proud as Edison�s father had been of Edison�s achievement. But was I morally blameworthy? Sort of, but not as much as if I had gone in and stomped on the thing in a fit of spite�or if I had been three times as old as I was�because the level of understanding, which changes with circumstances, does determine, to some degree, the moral blameworthiness of an action. If Raymond is just dumb, and thinks he�ll save someone�s life by taking out the poisoned pills and not telling anyone, then he�s liable as a legal matter for negligence�even though his act may have been noble.
*--I see the implications of this statement for the question of assisted-suicide laws. I generally favor the legality of suicide for terminally ill patients, and I am unable at this moment to reconcile these two principles.
�The circumstances of the decedent�s death give rise to an unusual issue of its cause. In leaning over from the girder and losing his balance he was entitled to no protection from the defendant to keep from falling. Its only liability was in exposing him to the danger of charged wires. If but for the current in the wires he would have fallen down on the floor of the bridge or into the river, he would without doubt have been either killed or seriously injured. Although he died from electrocution, yet, if by reason of his preceding loss of balance he was bound to fall except for the intervention of the current, he either did not have long to live or was to be maimed. In such an outcome of his loss of balance, the defendant deprived him, not of a life of normal expectancy, but of one too short to be given pecuniary allowance, in one alternative, and not of normal, but of limited, earning capacity, in the other.
�If it were found that he would have thus fallen with death probably resulting, the defendant would not be liable, unless for conscious suffering found to have been sustained from the shock. In that situation his life or earning capacity had no value. To constitute actionable negligence there must be damage, and damage is limited to those elements the statute prescribes.
�If it should be found that but for the current he would have fallen with serious injury, then the loss of life or earning capacity resulting from the electrocution would be measured by its value in such injured condition. Evidence that he would be crippled would be taken into account in the same manner as though he had already been crippled. His probable future but for the current thus bears on liability as well as damages.� Id. at 114-15.
Note that this is the opposite argument that I made earlier, in my brief hypothetical about the bus accident. (Not to mention, it supports Baude�s defense of Raymond.) Here, the court is saying that the electric company could use the inevitability of the boy�s death from the fall as an argument that they should not be liable at all for the injury caused by the electrocution. Now, I find this argument unpersuasive, for the simple reason that �[i]n the long run we are all dead.� Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 356 (2002) (Thomas & Scalia, JJ., dissenting) (quoting John Maynard Keynes, Monetary Reform 88 (1924)). I could die today in a fiery car wreck, but that should not cut of liability for the negligence of, say, the manufacturers of my coffee maker if it should suddenly burst into flames as my morning coffee is brewing. This goes to forseeability because, to the manufacturers of the coffee maker, my sudden death is equally foreseeable to my continuing alive; but it also goes to duty because the manufacturers shouldn�t be allowed to make faulty coffee makers on the excuse that everybody�s gotta die anyway, so they may as well die from our faulty coffee makers. In the same way, the duty to treat people reasonably should not be excused by the possibility of the death of the victim, no matter how imminent.* So Raymond should not be able to go about shooting people who are about to get hit by a bus and then excuse himself on the grounds that the bus was gonna hit them anyway. So I don�t think the electric company�or the person with the sleeping pills�should be able to say �I should not be liable, because the victim was going to die anyhow.� (This is only speaking to the question of liability. I do agree that the court ought to take imminent likelihood of death into consideration as to the question of damages resulting from that liability, because tort law should compensate for what is actually lost, and if the boy�s going to plunge to his death in a few minutes, his life is worth less than a person who is probably going to survive for a long time.)
Baude�s most recent hypothetical is, I think, easier than the earlier ones, because it is just replacing joint intentional tortfeasors with one intentional tortfeasor and one negligent tortfeasor. He writes,
�suppose things go on as before. Our star tennis player needs his medicine, and player one sneaks in and replaces them with cyanide. Player two sneaks in and simply takes the cyanide pills away. Our star tennis player, robbed of his medicine, gets quite sick, but is not dead yet. Who is morally responsible for his illness? If he dies, who is morally responsible for his death? How do these answers change depending on player two�s motivations? Now, after all, he can argue �no matter what I thought I was doing, what I was actually doing was taking poison away from the star player. So I clearly did a good thing, whether I meant to or not.��
First the legal analysis. The first poisoner has attempted murder, and can be convicted of a crime. But his tort liability is cut off by the unforeseeable, intervening act of player two, whom I�ve called Raymond. Now, Raymond�s act is negligent no matter what his motivation. By taking away a medicine bottle from the locker of a tennis player�and I presume the bottle is labeled �medicine,� but that is not necessary to establish liability�he has acted unreasonably. He owes a duty to act reasonably, which is clearly breached by removing a bottle of medicine from someone�s locker, where it is pretty obvious that such a thing involves a risk of harm to the tennis player. Even if Raymond knew the pills were cyanide, and he was trying heroically to save the tennis player from being poisoned, he did so unreasonably�just like throwing an anchor chain to a drowning man. And if he didn�t know they were poison, he�s still at least negligent.
Raymond might is also liable for an intentional tort, of trespass to chattels, but here his motivations might become relevant: if he was trying hamfistedly to protect the tennis player from a poisoning, he could use that as a defense to the tort, and maybe the court would let him off. But that�s an affirmative defense, which means Raymond must admit that he did do the thing.
As to moral culpability, I think it depends completely on Raymond�s subjective intentions. If he intended to take away medicine to harm the tennis player, not knowing the pills were cyanide, he is still trying to harm the tennis player, in a potentially deadly manner. If he was trying to save the tennis player from poison, in an admittedly clumsy fashion, then I think we would be right to regard that as a poor attempt at an admirable action. When I was a young boy, I once took apart my father�s 100 year old pocketwatch, because I had read about how Thomas Edison had once fixed a pocketwatch when he was a young boy. I, not being an Edison, managed merely to destroy the pocketwatch�of which my father was not quite so proud as Edison�s father had been of Edison�s achievement. But was I morally blameworthy? Sort of, but not as much as if I had gone in and stomped on the thing in a fit of spite�or if I had been three times as old as I was�because the level of understanding, which changes with circumstances, does determine, to some degree, the moral blameworthiness of an action. If Raymond is just dumb, and thinks he�ll save someone�s life by taking out the poisoned pills and not telling anyone, then he�s liable as a legal matter for negligence�even though his act may have been noble.
*--I see the implications of this statement for the question of assisted-suicide laws. I generally favor the legality of suicide for terminally ill patients, and I am unable at this moment to reconcile these two principles.
