Saturday, August 23, 2003
I have a dream, too: Today is the anniversary of the famous March on Washington, where Dr. King gave his wonderful �I Have A Dream� speech. A few thoughts:
First, the March on Washington was a spectacular success story of careful planning. It was very hard for King and his coworkers to pull off (whose names, unfortunately, are less well known�people like Bayard Rustin, a gay communist who arranged security and supplies). The nonviolent movement in general was difficult to arrange, because tensions were so high that violence could erupt at any moment. (Remember, the speech came after the assassination of Medgar Evers, the Freedom Rides, King�s jailing in Birmingham, and the riots at Ole Miss.)
Second, the speech was actually given extemporaneously. King had spoken on the �I Have A Dream� theme a few times before at earlier events, but it was not written down. According to Taylor Branch, in his outstanding Parting The Waters: America In The King Years, King was giving a not-so-great speech when he decided to heat up the audience by reverting to the �I Have A Dream� message.
Finally, there will no doubt be a lot of talk today about what needs to be done to realize Dr. King�s dream. Much of this talk will focus on increasing government interference in people�s lives: increasing the power of government racial preferences, for instance.
But what is truly needed is economic freedom and respect for private property. I�ve written about economic freedom before, but let�s take a look at eminent domain.
Black Americans have routinely been on the business end of condemnations. Remember in the 1970s, when they had �urban renewal,� which some called �negro removal�? Well, �some say it�s different now, but look: it�s just the same.�
Take the city of Boynton Beach, Florida, for example, which has announced its intention to use eminent domain in a large section of the city for �redevelopment� (the present-day version of �urban renewal�). Here�s the city�s redevelopment plan (large PDF file). It includes massive condemnations and redistribution of property so that private developers can come in and remake large portions of the city. But check out the minutes of the city council meeting on April 29, 2003, where Quintus Greene, director of the city redevelopment agency, explains to the city council �Why We Are Doing This�:
�Mr. Greene distributed two handouts titled, �Selected Economic Comparison� and �Principal Taxpayers.� Mr. Greene said these two handouts explain why we are doing this.� Ah, so let�s take a look at what the economic comparison says.
�Boynton Beach has a population of 62,847 compared to 61,627 in Delray Beach. These two cities are almost identical in population. However, when comparing median household incomes, Boynton Beach ranks lower at $39,845 than Delray at $43,371. Boynton Beach ranks higher in median household income than West Palm Beach at $36,774.�
Wait a second, you might say. I thought �redevelopment� just meant getting rid of slums and nuisances�to ensure that cities were relatively safe and clean. What does the median income of the city have to do with it? Ah, but Mr. Greene goes on:
�The purpose of this redevelopment,� continues Mr. Greene, �is to compensate for the loss of one of the City�s major taxpayers. Our property tax values are meager compared to other cities and this redevelopment is our attempt to enhance property values within this City. Our choices are to expand our tax base, raise property taxes or reduce services to our citizens.... In Boynton Beach, there is a significant amount of property that pays little or no taxes. Given that reality, we must do other things to compensate for that loss of tax dollars.�
In other words, we need to steal the homes of poor people so that we can move in richer people! Greene is saying that if you throw the poor folk out of your city, your city�s median income will go up. Well�yeah!
Consider the recent Nissan case in Mississippi, in which Prof. Eastman and I wrote an amicus brief. As I write in my Southwestern Law Review article,
�Mississippi Major Economic Impact Authority v. Andrew Archie, provides a stark but typical example of the use of eminent domain to serve private purposes. In the largest redevelopment project in Mississippi history, the state transferred 1300 acres of state-owned land to the Nissan corporation to induce Nissan into opening an automobile assembly plant. When Nissan dawdled, the state sought to condemn twenty-three more acres, which belonged to a group of homeowners. State Development Authority Executive Director James Burns, Jr. admitted in the New York Times that the property was not actually a part of the project: �It�s not that Nissan is going to leave if we don't get that land. What�s important is the message it would send to other companies if we are unable to do what we said we would do. If you make a promise to a company like Nissan, you have to be able to follow through.� The Special Court of Eminent Domain reluctantly held in favor of the state, noting that under prevailing legal theory, any public benefit, including prospective employment at the Nissan plant, satisfied the public use requirement. Although the State Supreme Court granted review, the state dropped the proceedings before the Court ruled, and the property owners were allowed to keep their homes.
�Archie demonstrates some of the common themes of today's eminent domain cases: landowners, often poor minorities, who are unable to muster the lobbying muscle which a large firm like Nissan or Costco have at their disposal, are almost wholly at the mercy of redevelopment agencies which see themselves as the legitimate organs of land development. While many scholars have noted the injustice caused by the broad reading of �public use,� courts have only rarely put real teeth in the review by enforcing the public use clause as a substantive limit on government power. So long as the law permits private redistributions of wealth on the grounds of allegedly public gains, these injustices will continue.� Timothy Sandefur, A Natural Rights Perspective on Eminent Domain in California: A Rationale for Meaningful Judicial Scrutiny of �Public Use,� 32 Sw. U. L. Rev. 569, 598-99 (2003).
This is the consequence of the courts� evisceration of the �public use� limitation on eminent domain. In an older day, government had no power to take property from one person and give it to another simply on the grounds that the new users would �use it better.� See, e.g., Wilkinson v. Leland, 27 U.S. (2 Pet.) 627, 658 (1829). But since that time, the public use clause has been so relaxed as to be practically nonexistent. See Berman v. Parker, 348 U.S. 26 (1954). Government now routinely takes property from some people to give it to others, in order to throw poor people out of the city. The power to take people�s property has got to be returned to the limits in the written Constitution. That is one vital�and, unfortunately, often overlooked�way to fulfill Dr. King�s dream.
First, the March on Washington was a spectacular success story of careful planning. It was very hard for King and his coworkers to pull off (whose names, unfortunately, are less well known�people like Bayard Rustin, a gay communist who arranged security and supplies). The nonviolent movement in general was difficult to arrange, because tensions were so high that violence could erupt at any moment. (Remember, the speech came after the assassination of Medgar Evers, the Freedom Rides, King�s jailing in Birmingham, and the riots at Ole Miss.)
Second, the speech was actually given extemporaneously. King had spoken on the �I Have A Dream� theme a few times before at earlier events, but it was not written down. According to Taylor Branch, in his outstanding Parting The Waters: America In The King Years, King was giving a not-so-great speech when he decided to heat up the audience by reverting to the �I Have A Dream� message.
Finally, there will no doubt be a lot of talk today about what needs to be done to realize Dr. King�s dream. Much of this talk will focus on increasing government interference in people�s lives: increasing the power of government racial preferences, for instance.
But what is truly needed is economic freedom and respect for private property. I�ve written about economic freedom before, but let�s take a look at eminent domain.
Black Americans have routinely been on the business end of condemnations. Remember in the 1970s, when they had �urban renewal,� which some called �negro removal�? Well, �some say it�s different now, but look: it�s just the same.�
Take the city of Boynton Beach, Florida, for example, which has announced its intention to use eminent domain in a large section of the city for �redevelopment� (the present-day version of �urban renewal�). Here�s the city�s redevelopment plan (large PDF file). It includes massive condemnations and redistribution of property so that private developers can come in and remake large portions of the city. But check out the minutes of the city council meeting on April 29, 2003, where Quintus Greene, director of the city redevelopment agency, explains to the city council �Why We Are Doing This�:
�Mr. Greene distributed two handouts titled, �Selected Economic Comparison� and �Principal Taxpayers.� Mr. Greene said these two handouts explain why we are doing this.� Ah, so let�s take a look at what the economic comparison says.
�Boynton Beach has a population of 62,847 compared to 61,627 in Delray Beach. These two cities are almost identical in population. However, when comparing median household incomes, Boynton Beach ranks lower at $39,845 than Delray at $43,371. Boynton Beach ranks higher in median household income than West Palm Beach at $36,774.�
Wait a second, you might say. I thought �redevelopment� just meant getting rid of slums and nuisances�to ensure that cities were relatively safe and clean. What does the median income of the city have to do with it? Ah, but Mr. Greene goes on:
�The purpose of this redevelopment,� continues Mr. Greene, �is to compensate for the loss of one of the City�s major taxpayers. Our property tax values are meager compared to other cities and this redevelopment is our attempt to enhance property values within this City. Our choices are to expand our tax base, raise property taxes or reduce services to our citizens.... In Boynton Beach, there is a significant amount of property that pays little or no taxes. Given that reality, we must do other things to compensate for that loss of tax dollars.�
In other words, we need to steal the homes of poor people so that we can move in richer people! Greene is saying that if you throw the poor folk out of your city, your city�s median income will go up. Well�yeah!
Consider the recent Nissan case in Mississippi, in which Prof. Eastman and I wrote an amicus brief. As I write in my Southwestern Law Review article,
�Mississippi Major Economic Impact Authority v. Andrew Archie, provides a stark but typical example of the use of eminent domain to serve private purposes. In the largest redevelopment project in Mississippi history, the state transferred 1300 acres of state-owned land to the Nissan corporation to induce Nissan into opening an automobile assembly plant. When Nissan dawdled, the state sought to condemn twenty-three more acres, which belonged to a group of homeowners. State Development Authority Executive Director James Burns, Jr. admitted in the New York Times that the property was not actually a part of the project: �It�s not that Nissan is going to leave if we don't get that land. What�s important is the message it would send to other companies if we are unable to do what we said we would do. If you make a promise to a company like Nissan, you have to be able to follow through.� The Special Court of Eminent Domain reluctantly held in favor of the state, noting that under prevailing legal theory, any public benefit, including prospective employment at the Nissan plant, satisfied the public use requirement. Although the State Supreme Court granted review, the state dropped the proceedings before the Court ruled, and the property owners were allowed to keep their homes.
�Archie demonstrates some of the common themes of today's eminent domain cases: landowners, often poor minorities, who are unable to muster the lobbying muscle which a large firm like Nissan or Costco have at their disposal, are almost wholly at the mercy of redevelopment agencies which see themselves as the legitimate organs of land development. While many scholars have noted the injustice caused by the broad reading of �public use,� courts have only rarely put real teeth in the review by enforcing the public use clause as a substantive limit on government power. So long as the law permits private redistributions of wealth on the grounds of allegedly public gains, these injustices will continue.� Timothy Sandefur, A Natural Rights Perspective on Eminent Domain in California: A Rationale for Meaningful Judicial Scrutiny of �Public Use,� 32 Sw. U. L. Rev. 569, 598-99 (2003).
This is the consequence of the courts� evisceration of the �public use� limitation on eminent domain. In an older day, government had no power to take property from one person and give it to another simply on the grounds that the new users would �use it better.� See, e.g., Wilkinson v. Leland, 27 U.S. (2 Pet.) 627, 658 (1829). But since that time, the public use clause has been so relaxed as to be practically nonexistent. See Berman v. Parker, 348 U.S. 26 (1954). Government now routinely takes property from some people to give it to others, in order to throw poor people out of the city. The power to take people�s property has got to be returned to the limits in the written Constitution. That is one vital�and, unfortunately, often overlooked�way to fulfill Dr. King�s dream.
Somewhere�: We had a storm here this week, and on Thursday, on the way home, there was a beautiful rainbow, stretching lazily out of the cloud and drifting down to end�at Folsom Prison! It clearly ended at the prison.
I�ve been trying to decide what this means. I guess criminal sentencing really is too lenient.
I�ve been trying to decide what this means. I guess criminal sentencing really is too lenient.
GWTW: Kay at Southern Appeal is a big fan of Gone With The Wind. Me too. I suppose that�s not something a Real Man would say, but it is a great movie. And that line about war, not a garden party�I think about that every time the news comes on, I think.
Of course, we bloggers are just mules in horses harnesses, and we ain�t foolin� nobody.
Of course, we bloggers are just mules in horses harnesses, and we ain�t foolin� nobody.
Friday, August 22, 2003
My favorite person: So I�ve been reading David McCullough�s John Adams...finally. Everyone else on earth has read it except me, I think. Anyway, although it is very well written, and although I do admire Adams (though not as much as I admire his son), all the book is doing is making me think of the man I admire most in all history, Thomas Jefferson.
I�m a hero-worshipper, I really am. Thomas Jefferson is my hero. Among my favorite descriptions of Jefferson is Robert Hughes� comment that �reading him, you can feel his intellectual curiosity on your face like sunburn.� (A paraphrase�I don�t have that book here.) How true! A man of passionate intelligence, profound emotion, brilliant insight, and deep flaws. Absolutely, gloriously, human. Not a genius, but so very nearly so that there is not an element of his life that is not fascinating to me. In McCullough�s book (so far), he comes off as the most absurd popinjay (to use a great eighteenth century word), that I barely recognize the man. McCullough writes, �That Jefferson had vowed, as he told his family, to �keep what I feel to myself,� only made him a more interesting and sympathetic figure�� but if there was one thing Thomas Jefferson never did (at least, in his letters), it was to keep what he felt to himself! A far more realistic assessment of Jefferson is (another of my favorites) that of James Madison: �Excuses must be made for a habit in Mr. Jefferson, as in others of great genius, of expressing in round terms, impressions of the moment.� (Another paraphrase)
Jefferson was a deeply emotional man, capable of the darkest and most terrifying grief. He struggled out of that grief by a process he later described to his daughter: �The secret to happiness is to keep oneself always occupied. The idle alone are the only wretched.� (Another paraphrase). Jefferson�s breadth of interests was the product of his profound emotional side. For every bit that he was the scientist, he was equally the romantic. What other man would write a 15,000 word love letter with his left hand (having broken his right) to a woman who had just left for another country? (Incidentally, that reminds me: McCullough claims Jefferson broke his wrist during the Revolution, just after the invasion of Banastre Tarleton. I�ve never heard that claim before, and McCollough gives no cite for it. Also, McCullough quotes Jefferson�s famous letter to Madison in which he describes Adams� character, and he carries over the italics, which gives a slightly misleading impression: these passages were encoded, not emphasized.
I�ve studied Jefferson�s life for thirteen years, now, and he only grows more fascinating to me. Those interested in learning more should consult my favorite biography, Alf Mapp�s two volumes (Thomas Jefferson: A Strange Case of Mistaken Identity and Thomas Jefferson: Passionate Pilgrim) and, of course, the man�s own writings, which are fascinating and easily readable. Get The Portable Thomas Jefferson and read some of his letters. More Jefferson recommendations here.
I�m a hero-worshipper, I really am. Thomas Jefferson is my hero. Among my favorite descriptions of Jefferson is Robert Hughes� comment that �reading him, you can feel his intellectual curiosity on your face like sunburn.� (A paraphrase�I don�t have that book here.) How true! A man of passionate intelligence, profound emotion, brilliant insight, and deep flaws. Absolutely, gloriously, human. Not a genius, but so very nearly so that there is not an element of his life that is not fascinating to me. In McCullough�s book (so far), he comes off as the most absurd popinjay (to use a great eighteenth century word), that I barely recognize the man. McCullough writes, �That Jefferson had vowed, as he told his family, to �keep what I feel to myself,� only made him a more interesting and sympathetic figure�� but if there was one thing Thomas Jefferson never did (at least, in his letters), it was to keep what he felt to himself! A far more realistic assessment of Jefferson is (another of my favorites) that of James Madison: �Excuses must be made for a habit in Mr. Jefferson, as in others of great genius, of expressing in round terms, impressions of the moment.� (Another paraphrase)
Jefferson was a deeply emotional man, capable of the darkest and most terrifying grief. He struggled out of that grief by a process he later described to his daughter: �The secret to happiness is to keep oneself always occupied. The idle alone are the only wretched.� (Another paraphrase). Jefferson�s breadth of interests was the product of his profound emotional side. For every bit that he was the scientist, he was equally the romantic. What other man would write a 15,000 word love letter with his left hand (having broken his right) to a woman who had just left for another country? (Incidentally, that reminds me: McCullough claims Jefferson broke his wrist during the Revolution, just after the invasion of Banastre Tarleton. I�ve never heard that claim before, and McCollough gives no cite for it. Also, McCullough quotes Jefferson�s famous letter to Madison in which he describes Adams� character, and he carries over the italics, which gives a slightly misleading impression: these passages were encoded, not emphasized.
I�ve studied Jefferson�s life for thirteen years, now, and he only grows more fascinating to me. Those interested in learning more should consult my favorite biography, Alf Mapp�s two volumes (Thomas Jefferson: A Strange Case of Mistaken Identity and Thomas Jefferson: Passionate Pilgrim) and, of course, the man�s own writings, which are fascinating and easily readable. Get The Portable Thomas Jefferson and read some of his letters. More Jefferson recommendations here.
Yes: All my blog posts are first drafts, written as I think of them. I turn to a source only when I want my quotes to be accurate, and I edit when I find a spelling error or link error, but otherwise I write while I�m thinking. This is why I sometimes rant. Also, if readers think I go off half-cocked sometimes, this is why. What I lose in calm and dispassionate analysis, I gain in spontaneous combustibility.
More on Moore: Law Muse thinks I�m being melodramatic. Certainly wouldn�t be the first time...although it�s hard to devise a clear distinction between one person�s �melodramatic� and another person�s �really pissed off.�
As for conspiracy theories, that�s not what I meant�I meant that, in his vigorous crusade against the Sixth Chapter of Matthew, Chief Justice Moore is trying to shove a religious monument into our faces, and he has carefully picked and chosen what facts to present in order to make it appear that he�s just waving a flag. I heard another example of this on the radio today, when Paul Harvey came on. (Why, why do I listen to that man?) �In God We Trust in on our currency,� he said, �and the President takes an oath that includes �so help me God.� Yet Chief Justice Moore has been ordered to remove the Ten Commandments from the courthouse. What commandment, exactly, do these people have a problem with?�
Well, the answer to that, Mr. Harvey, is the First Commandment. �I am the Lord Thy God,� it says. What part of that statement is secular? What part of that statement is legal? Or political? Or any business of the state? As for the currency�that was not added until almost a century after the writing of the First Amendment, and then in the heat of America�s worst war. And the oath? The Constitution specifically prohibits the government from requiring a President to say �so help me god� as part of his oath. (My article on Article VI is here.)
But there is one thing on which Law Muse is quite mistaken: I very much believe that there is �law higher than that of the State,� and I�ve engaged in lengthy debates defending that proposition, just recently. What I don�t believe is that that law is dictated by some supernatural Being. It is the result of nature. Now, I have the right to that belief, but I have no right to back up that belief by wrapping it in the shroud of government authority. (�If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.� West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943)).
The irony is that it is Moore and his supporters who are violating the higher law�and I don�t just mean by the fact that Moore violated the eighth commandment when he took his oath of office. The higher law says that there are some things that no majority may ever do to us under any circumstances. As Madison explained, �Whatever be the hypothesis of the origin of the lex majoris parties, it is evident that it operates as a plenary substitute for the will of the majority of the society, for the will of the whole society; and that the sovereignty of the society as vested in & exercisable by the majority, may do anything that could be rightfully done by the unanimous concurrence of the members; the reserved rights of individuals (of conscience for example) in becoming parties to the original compact being beyond the legitimate reach of sovereignty, whenever vested or however viewed.� (last emphasis added)
Jefferson agreed: �our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.� By dragging religion within the boundaries of politics, and by telling us that the fact that his religion is in the majority gives him the right to do this thing�it is Moore who has violated the law of nature, and is attempting now to dictate to us our religious practices. �Subject opinion to coercion,� continues Jefferson, and �whom will you make your inquisitors? Fallible men; men governed by bad passions, by private as well as public reasons. And why subject it to coercion? To produce uniformity. But is uniformity of opinion desireable? No more than of face and stature. Introduce the bed of Procrustes then, and as there is danger that the large men may beat the small, make us all of a size, by lopping the former and stretching the latter.� Moore makes himself Procrustes. Well, fine. �Verily I say unto you, he has his reward.� He may make himself Procrustes, but he can never make himself a judge.
I take it also as a law of nature that no man may be a judge in his own cause. Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798). Moore�s defiance of the court order therefore also violates the higher law. Compare Walker v. City of Birmingham, 388 U.S. 307, 320-21 (1967): �in the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion. This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners� impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.�
Finally, one reader comments, �I think you�re being too absolutist. Reread your last paragraph, containing your ringing and eloquent statement that �there is no harsher condemnation for any judge than to say: �this man knowingly broke the law.�� It sounds good. But have you ever seen the film Judgment at Nuremberg? You ought to�at least Spencer Tracy�s peroration. Then think again about what you said. Legally: are you saying Spencer Tracy�s character was flat wrong in what he said? And morally: what if C.J. Moore believes to the bottom of his heart that if he acted any differently he would be no better than the craven justice played by Burt Lancaster whom Tracy�s judge condemned?�
Actually, I have never seen Judgment At Nuremburg, although I�m of course familiar with the case. But I should clarify that, no, I do not mean to absolutely condemn lawbreaking in every case. There are circumstances in which a person may legitimately violate the law: that is, when a long train of abuses evinces a design to reduce the people under absolute despotism; then it is the right and the duty of the people to throw off that government. That, obviously, is not the case with Justice Moore, who is in fact acting against liberty, rather than for it.
But wait (someone might say). Isn�t the government stopping us from exercising our religious freedom, since it�s prohibiting the display of the Ten Commandments? Absolutely not, and that�s the whole point. Chief Justice [sic] Moore is free to display the Ten Commandments all he wants to. He may put them anywhere he likes. The State of Alabama, however, is not free to do that. And so long as Moore is acting as an official of the State of Alabama, and so long as the Capitol Building is a state building, he may not use his authority to place the government�s imprimatur on a religious statement of any kind. That, at least, is the command of the First Amendment. And it does not deprive him of any legitimate freedom. He is free to do what he wants with his own property, as are you all. So long as that is true, rebellion against the laws is crime, and not a legitimate revolution.
As for conspiracy theories, that�s not what I meant�I meant that, in his vigorous crusade against the Sixth Chapter of Matthew, Chief Justice Moore is trying to shove a religious monument into our faces, and he has carefully picked and chosen what facts to present in order to make it appear that he�s just waving a flag. I heard another example of this on the radio today, when Paul Harvey came on. (Why, why do I listen to that man?) �In God We Trust in on our currency,� he said, �and the President takes an oath that includes �so help me God.� Yet Chief Justice Moore has been ordered to remove the Ten Commandments from the courthouse. What commandment, exactly, do these people have a problem with?�
Well, the answer to that, Mr. Harvey, is the First Commandment. �I am the Lord Thy God,� it says. What part of that statement is secular? What part of that statement is legal? Or political? Or any business of the state? As for the currency�that was not added until almost a century after the writing of the First Amendment, and then in the heat of America�s worst war. And the oath? The Constitution specifically prohibits the government from requiring a President to say �so help me god� as part of his oath. (My article on Article VI is here.)
But there is one thing on which Law Muse is quite mistaken: I very much believe that there is �law higher than that of the State,� and I�ve engaged in lengthy debates defending that proposition, just recently. What I don�t believe is that that law is dictated by some supernatural Being. It is the result of nature. Now, I have the right to that belief, but I have no right to back up that belief by wrapping it in the shroud of government authority. (�If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.� West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943)).
The irony is that it is Moore and his supporters who are violating the higher law�and I don�t just mean by the fact that Moore violated the eighth commandment when he took his oath of office. The higher law says that there are some things that no majority may ever do to us under any circumstances. As Madison explained, �Whatever be the hypothesis of the origin of the lex majoris parties, it is evident that it operates as a plenary substitute for the will of the majority of the society, for the will of the whole society; and that the sovereignty of the society as vested in & exercisable by the majority, may do anything that could be rightfully done by the unanimous concurrence of the members; the reserved rights of individuals (of conscience for example) in becoming parties to the original compact being beyond the legitimate reach of sovereignty, whenever vested or however viewed.� (last emphasis added)
Jefferson agreed: �our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.� By dragging religion within the boundaries of politics, and by telling us that the fact that his religion is in the majority gives him the right to do this thing�it is Moore who has violated the law of nature, and is attempting now to dictate to us our religious practices. �Subject opinion to coercion,� continues Jefferson, and �whom will you make your inquisitors? Fallible men; men governed by bad passions, by private as well as public reasons. And why subject it to coercion? To produce uniformity. But is uniformity of opinion desireable? No more than of face and stature. Introduce the bed of Procrustes then, and as there is danger that the large men may beat the small, make us all of a size, by lopping the former and stretching the latter.� Moore makes himself Procrustes. Well, fine. �Verily I say unto you, he has his reward.� He may make himself Procrustes, but he can never make himself a judge.
I take it also as a law of nature that no man may be a judge in his own cause. Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798). Moore�s defiance of the court order therefore also violates the higher law. Compare Walker v. City of Birmingham, 388 U.S. 307, 320-21 (1967): �in the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion. This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners� impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.�
Finally, one reader comments, �I think you�re being too absolutist. Reread your last paragraph, containing your ringing and eloquent statement that �there is no harsher condemnation for any judge than to say: �this man knowingly broke the law.�� It sounds good. But have you ever seen the film Judgment at Nuremberg? You ought to�at least Spencer Tracy�s peroration. Then think again about what you said. Legally: are you saying Spencer Tracy�s character was flat wrong in what he said? And morally: what if C.J. Moore believes to the bottom of his heart that if he acted any differently he would be no better than the craven justice played by Burt Lancaster whom Tracy�s judge condemned?�
Actually, I have never seen Judgment At Nuremburg, although I�m of course familiar with the case. But I should clarify that, no, I do not mean to absolutely condemn lawbreaking in every case. There are circumstances in which a person may legitimately violate the law: that is, when a long train of abuses evinces a design to reduce the people under absolute despotism; then it is the right and the duty of the people to throw off that government. That, obviously, is not the case with Justice Moore, who is in fact acting against liberty, rather than for it.
But wait (someone might say). Isn�t the government stopping us from exercising our religious freedom, since it�s prohibiting the display of the Ten Commandments? Absolutely not, and that�s the whole point. Chief Justice [sic] Moore is free to display the Ten Commandments all he wants to. He may put them anywhere he likes. The State of Alabama, however, is not free to do that. And so long as Moore is acting as an official of the State of Alabama, and so long as the Capitol Building is a state building, he may not use his authority to place the government�s imprimatur on a religious statement of any kind. That, at least, is the command of the First Amendment. And it does not deprive him of any legitimate freedom. He is free to do what he wants with his own property, as are you all. So long as that is true, rebellion against the laws is crime, and not a legitimate revolution.
Fame!: Holy cow... Well, thanks everybody, for your links to my comments about Chief Justice Moore. Cooped Up, War Liberal, (who was kind enough to call my comments �reasoned,� when they were really more of a rant), Leaning Towards the Dark Side, Schadenfreude, Temperantia R3, Camassia, and The Mad Prophet Blog (which also added me to the blogroll, so I have reciprocated. By the way, unlike many bloggers, I actually do make it a point to regularly read all the blogs on my blogroll.)
Also, random thoughts, and annika linked me. random thoughts is even more evil than this blog, if you can believe that.
And Annika also didn�t like Gods And Generals. Now, my position on the Civil War is well-known�I�m one of the only libertarians there is who�s willing to say that the North was right, and that the south was a hellish tyranny that deserved obliteration. But I didn�t object to the syrupy sweet view of the south portrayed in the one hour of the movie that I watched, because there was a southern view of that war�and, I�m sad to say, there still is a southern view of that war�and it deserves to be confronted forthrightly and honorably. The great virtue of Greek literature was that it was as honest and sympathetic in potraying the �bad guys� as it was in portraying the �good guys,� so that one of the most moving passages of the Iliad is when Hector is putting on his armor to battle the Greek hero Achilles. If the Civil War is America�s Iliad, then we owe it to�well, to my ancestors, who fought for the CSA�to portray that side sympathetically and honestly. But I would have liked a little more honesty. The last scene I watched before turning it off portrayed a black man named Jim eagerly taking the job of cook for Stonewall Jackson�s army. Now, there were slaves who fought for the south, and white southerners who were kind to them. I raised my eyebrows at Jackson referring to Jim as �Mr. �� but I suppose that�s not impossible. But the scene brought to mind the protests over Gone With The Wind when it first came out�that the movie (which I love, by the way) has seen to it that the only thing surviving of the antebellum south is what was never real to begin with: all the gilding, and none of the guilt!
Also, random thoughts, and annika linked me. random thoughts is even more evil than this blog, if you can believe that.
And Annika also didn�t like Gods And Generals. Now, my position on the Civil War is well-known�I�m one of the only libertarians there is who�s willing to say that the North was right, and that the south was a hellish tyranny that deserved obliteration. But I didn�t object to the syrupy sweet view of the south portrayed in the one hour of the movie that I watched, because there was a southern view of that war�and, I�m sad to say, there still is a southern view of that war�and it deserves to be confronted forthrightly and honorably. The great virtue of Greek literature was that it was as honest and sympathetic in potraying the �bad guys� as it was in portraying the �good guys,� so that one of the most moving passages of the Iliad is when Hector is putting on his armor to battle the Greek hero Achilles. If the Civil War is America�s Iliad, then we owe it to�well, to my ancestors, who fought for the CSA�to portray that side sympathetically and honestly. But I would have liked a little more honesty. The last scene I watched before turning it off portrayed a black man named Jim eagerly taking the job of cook for Stonewall Jackson�s army. Now, there were slaves who fought for the south, and white southerners who were kind to them. I raised my eyebrows at Jackson referring to Jim as �Mr. �� but I suppose that�s not impossible. But the scene brought to mind the protests over Gone With The Wind when it first came out�that the movie (which I love, by the way) has seen to it that the only thing surviving of the antebellum south is what was never real to begin with: all the gilding, and none of the guilt!
Thursday, August 21, 2003
Speaking of absolutely right: I thought this critique of Sec. Powell was right on. The State Department has done one of the worst conceivable things to American politics: it has essentially taken diplomacy out of the hands of the President. That may be a slight exaggeration, but in essence, the bureaucrats at Foggy Bottom know they can just sit and wait for a new President whose views comport more with their own�that is, a Democrat.
Ain�t nobody�s business if you do: Heidi Fleiss is absolutely right. (Saw it on Hit & Run.)
Oh puh-leeze: Annika is way sexier than those other bloggers. But this poll cannot be considered scientific, since Virginia Postrel beats �em all. She�s certainly the prettiest libertarian there ever was.
Course, that ain�t sayin� much.
Course, that ain�t sayin� much.
More names: For my collection of fun judge names, Prof. Tung Yin points out Judge Proctor Hug and Judge Ferdinand F. Fernandez. Excellent! Also, I remembered Judge Deady, who served at the trial court level in the case which later gave rise to In re Neagle.
I give up: Well, I�ve finally got around to watching Gods And Generals. I find it�how to put this?...excruciatingly terrible. Wow, is that a bad movie! I don�t mean all the talk about God or the fact that it�s from the southern point of view�in fact, I liked those. What I mean is, the dialogue is so weird. I suppose it�s taken from the letters and writings of actual soldiers for authenticity�s sake, but the result is that the conversations are just a trading of noble insights and clever witticisms�absolutely unrealistic. That might work, though�if the acting were any good. But the acting is painfully, laughably bad. I mean that literally�here I am watching it alone and I�m laughing out loud at the conversation between a man and his wife as he says he�s going off to war. This movie is like looking at a bunch of statues, with actors hiding behind them, reading their letters. That sort of thing is much more entertaining when Ken Burns does it.
Man, is it bad. I mean�.it is really, really bad. Really bad.
Man, is it bad. I mean�.it is really, really bad. Really bad.
Evil or good?: Following a link found on Curmudgeonly Clerk, I checked out the evilness ratio of Freespace, and found that
Freespace is 36% evil, 64% good. Ha! In your face!
On the other hand, I picked a random paragraph of my forthcoming Harvard Journal of Law & Public Policy article, and it was 77% evil, 23% good. This seems rather consistent�a random selection of my recent Southwestern Law Review article was 75% evil, 25% good, and my Chapman Law Review article was 78% evil, 22% good. So I am pretty consistently 3/4ths evil: not bad for a libertarian atheist blues fan, I suspect.
But take heart! My legal work is much kinder: a passage from a brief currently in draft was actually 93% good!
(This explains why I have so much more fun writing law review articles.)
Freespace is 36% evil, 64% good. Ha! In your face!
On the other hand, I picked a random paragraph of my forthcoming Harvard Journal of Law & Public Policy article, and it was 77% evil, 23% good. This seems rather consistent�a random selection of my recent Southwestern Law Review article was 75% evil, 25% good, and my Chapman Law Review article was 78% evil, 22% good. So I am pretty consistently 3/4ths evil: not bad for a libertarian atheist blues fan, I suspect.
But take heart! My legal work is much kinder: a passage from a brief currently in draft was actually 93% good!
(This explains why I have so much more fun writing law review articles.)
No, no!: Well, the conservatives were all outraged about Lawrence because they said it would lead to the collapse of civilized life for people to be free to make their own decisions about sex in the privacy of their own homes. That was ludicrous...and yet, you know they�ll be trumpeting this story, won�t they? I�ll try to nip it in the bud: Lawrence is easily distinguishable from a situation involving minors. The whole point of distinguishing between minors and adults is that minors are deemed (though wrongly in some cases, by necessity) to be incapable of making mature decisions. This holds for a variety of behavior, and as a child grows up, these limitations fall away gradually until he is deemed to be an adult, and thus capable of making decisions for himself. A child does not have a right of privacy, because, as Locke explains, a child does not own himself: he belongs to his parents in trust for himself. A teenager might have some intermediate right of privacy. An adult has a right to privacy. So I don�t want to hear (what I know I will hear) conservatives running around saying that this sort of argument is necessarily the result of Lawrence. (Oh, and I saw it at the Obscure Store.)
Fame!: Thanks to How Appealing for the link.
More great judge names: Will Baude and the Curmudgeonly Clerk (by private correspondence) were surprised I overlooked Judge Wisdom, the penultimate judge name. Baude also mentions Judge Godbold, which is also pretty good, but as the Clerk noted, the best so far has to be the Texas Judge whose last name is Justice. A way must be found to get this jurist on the Supreme Court, simply so that we can have a Justice Justice.
Of course, there is also Learned Hand (what was his momma thinking?!)
Any other great judge names?
Of course, there is also Learned Hand (what was his momma thinking?!)
Any other great judge names?
Wednesday, August 20, 2003
Fame!: Thanks to Crescat Sententia and The Curmudgeonly Clerk for the links. The Curmudgeonly Clerk mentions Judge Friendly, which reminds me of my collection of great judge names. There�s Judge Mudd, who I think was in the news not too long ago. And Judge Sonenshine, and I think there�s a Judge Law�. Anyone have any other good ones?
J�accuse: I think it�s a serious thing to criticize a judge, particularly the chief justice of a state. Nevertheless, I must say that Chief Justice Moore�s decision to disobey a federal court order is absolutely abhorrent. There might be some exceedingly rare circumstances in which it would be acceptable (on some level other than legal), for a layman to violate a court order because he believed it to be unconstitutional. But it is totally unacceptable for a judge, let alone the chief judicial officer of a state, to defy the rule of law simply because he believes�and wrongly, I should add�that the court is wrong. �[C]onstitutional principles cannot be allowed to yield simply because of disagreement with them.� Brown v. Board of Ed. (�Brown II�), 349 U.S. 294, 300 (1955).
Chief Justice Moore has taken care, in designing his monument, to quote the founders� use of the word �God,� while making no distinction, of course, between deeply devout men like Samuel Adams, and practical atheists like James Madison.
(Note, for instance, that he does not quote Madison�s comments on the constitutionality of a chaplainship in Congress: �Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?
�In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion.... The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles. The tenets of the chaplains elected shut the door of worship agst the members whose creeds & consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics & Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain? To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers, or that the major sects have a right to govern the minor....
�Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex or to class it cum �maculis quas aut incuria fudit, aut humana parum cavit natura.��)
Moore ignores such things because he is trying to defend the (false) claim that America was founded as a Christian nation. (One might have quoted the Treaty with Tripoli, negotiated by the Washington administration and signed by John Adams, which clearly proclaimed as the law of the land that �the Government of the United States of America is not, in any sense, founded on the Christian religion.�) But Chief Justice Moore ignores such things because he is trying to remind us all that our rights do not come from the state, but from God. Of course, readers of this blog well know that I am deeply sympathetic to that claim, being profoundly opposed to the modern, positivist view that rights are what the state says they are. But I am also an atheist�a member of the most despised minority in the history of humanity. (Even the Jews persecuted us. You have to be pretty low on the totem pole to be picked on by Jews!) And this monument is nothing more than a cleverly devised method of making people like me feel unwelcome in the state courthouse.
Not long ago, a religious conservative friend asked me, �Does it make you feel excluded for there to be a ten commandments monument in the courthouse?� I answered, �Yes, it certainly does.� His response was to laugh at me. Now, I do not believe that the Constitution necessarily prohibits people (or the state) from making me feel excluded. But that is what it feels like. Imagine if the Chief Justice of your state were to erect a monument in the courthouse that said, in big bold Germanic lettering, �Is it possible that this old man does not know that God is dead?��Nietzsche. Certainly you would feel excluded. Is there a difference between these two? The only difference I can think of is that most people in Alabama are Christians. But is this not �to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers�?
I�ve said that a feeling of exclusion alone is not enough to violate the establishment clause, and I do believe that. I think, for instance, that Santa Fe v. Doe was wrongly decided. But Chief Justice Moore was not going for a mere feeling of exclusion. His monument has an exclusive and explicit purpose: to proclaim to the world that Christianity is embedded in the political foundation of American constitutions. As a historical matter it is certainly true that most Americans have been Christians, and as a result, politicians have routinely invoked Christian imagery and statements in their speeches and public pronouncements�moreso, actually, as time went on. At the beginning, however, it was clear that, in the words of Justice Story, the Constitution was �designed to cut off every pretence of an alliance between the Church and the State in the administration of the National Government.� Joseph Story, A Familiar Exposition of the Constitution of the United States 307 (Conservative Book Club, 1986) (1840). Chief Justice Moore is not satisfied to move his monument into some church, or onto some private property. No, his statement is very clear: if you are not a Christian, you cannot be a good and loyal believer in America�s founding principles.
If Chief Justice Moore can erect this monument, can not a Catholic Chief Justice erect a monument to the Virgin Mary? Or a Buddhist a monument to the Buddha? Perhaps you say yes, but Chief Justice Moore does not. As the Federal District Court (which Moore is defying) has noted,
�the Chief Justice has written that, �By leaving religion [seemingly] undefined, the [Supreme] Court has opened the door to the erroneous assumption that, under the Establishment Clause, religion could include Buddhism, Hinduism, Taoism, and whatever might occupy in man�s life a place parallel to that filled by God.... In such a case, God and religion are no longer distinguished in meaning, permitting the First Amendment to be used to exclude the very object it was meant to protect, namely the sovereignty of God over civil government.� In short, his definition of religion would permit the First Amendment to do what he believes it was intended to do: �to protect ... the sovereignty of God over civil government,� and sovereignty of the Judeo-Christian God only.� Glassroth v. Moore, 229 F.Supp.2d 1290, 1312-13 (M.D. Ala. 2002) (quoting Roy S. Moore, Religion in the Public Square, 29 Cumb. L.Rev. 347, 352, 356-57 (1998/1999)). In short, Chief Justice Moore�s message is simply to tell those who do not believe in his religion that they are not equally welcome in the state house of justice.
Chief Justice Moore is also dishonoring the people of good will in his own state who might believe that the Ten Commandments can be constitutionally displayed in a court�people like Attorney General Bill Pryor, who, as this letter shows, has acquitted himself as an honorable and professional man of the law�much in contrast with Chief Justice Moore�in a case which certainly puts him in a tough spot. Chief Justice Moore's actions harmful those decent Christians in Alabama who take their religion and their Constitution seriously, because this petty rebellion will simply foster the national perception of Alabama Christians as �some guy driving a tricked-up RV pasted with anti-abortion, anti-gay, anti-federal government slogans...[and] flying what looks to be some sort of religious flag and an upside-down US flag atop his war wagon.�
In the end, there are two things that condemn Chief Justice Moore even beyond the fact that he has betrayed the dignity of his office and the reputation of his state; two things worse than that he has dishonored the memory of James Madison and of others who fought for religious freedom; two things worse than the fact that he has sought to prescribe what shall be orthodox in religion, and to use the color of state law to make those who disagree with him feel that they are not a legitimate part of the nation, and not entitled to the freedom he claims to defend. No, worse than that is that Chief Justice Moore has betrayed his oath before God Himself. To take his position as Chief Justice, Roy Moore swore, on January 15, 2001, that he would support and defend the Constitution of the United States and of the state of Alabama. Now, he intends to purposely violate that oath and to place himself at variance with the law and the duly constituted authority of the federal courts. Perhaps he imagines, in the very zenith of arrogance, that he is taking as bold a step as an older generation of Alabamans, who also defied the Constitution of the United States, for an even more reprehensible motive. But Chief Justice Moore�s rebellion is petty and tin-plated, disgraceful even to the memory of those misguided, but honorable warriors. In short, Chief Justice Moore has lied to his state, lied to his country, and lied to his God.
Above even this, there is one thing that, to my mind, is even worse. It may be put simply: there is no harsher condemnation for any judge than to say: �this man knowingly broke the law.� Chief Justice Moore may puff himself up with pretensions of principle, but he is not principled. He is a lawbreaker; a criminal. He has intentionally violated our nation�s most fundamental law, and betrayed the oath he took before his God. And that, I feel, is worthy of the profoundest contempt.
Chief Justice Moore has taken care, in designing his monument, to quote the founders� use of the word �God,� while making no distinction, of course, between deeply devout men like Samuel Adams, and practical atheists like James Madison.
(Note, for instance, that he does not quote Madison�s comments on the constitutionality of a chaplainship in Congress: �Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?
�In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion.... The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles. The tenets of the chaplains elected shut the door of worship agst the members whose creeds & consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics & Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain? To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers, or that the major sects have a right to govern the minor....
�Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex or to class it cum �maculis quas aut incuria fudit, aut humana parum cavit natura.��)
Moore ignores such things because he is trying to defend the (false) claim that America was founded as a Christian nation. (One might have quoted the Treaty with Tripoli, negotiated by the Washington administration and signed by John Adams, which clearly proclaimed as the law of the land that �the Government of the United States of America is not, in any sense, founded on the Christian religion.�) But Chief Justice Moore ignores such things because he is trying to remind us all that our rights do not come from the state, but from God. Of course, readers of this blog well know that I am deeply sympathetic to that claim, being profoundly opposed to the modern, positivist view that rights are what the state says they are. But I am also an atheist�a member of the most despised minority in the history of humanity. (Even the Jews persecuted us. You have to be pretty low on the totem pole to be picked on by Jews!) And this monument is nothing more than a cleverly devised method of making people like me feel unwelcome in the state courthouse.
Not long ago, a religious conservative friend asked me, �Does it make you feel excluded for there to be a ten commandments monument in the courthouse?� I answered, �Yes, it certainly does.� His response was to laugh at me. Now, I do not believe that the Constitution necessarily prohibits people (or the state) from making me feel excluded. But that is what it feels like. Imagine if the Chief Justice of your state were to erect a monument in the courthouse that said, in big bold Germanic lettering, �Is it possible that this old man does not know that God is dead?��Nietzsche. Certainly you would feel excluded. Is there a difference between these two? The only difference I can think of is that most people in Alabama are Christians. But is this not �to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers�?
I�ve said that a feeling of exclusion alone is not enough to violate the establishment clause, and I do believe that. I think, for instance, that Santa Fe v. Doe was wrongly decided. But Chief Justice Moore was not going for a mere feeling of exclusion. His monument has an exclusive and explicit purpose: to proclaim to the world that Christianity is embedded in the political foundation of American constitutions. As a historical matter it is certainly true that most Americans have been Christians, and as a result, politicians have routinely invoked Christian imagery and statements in their speeches and public pronouncements�moreso, actually, as time went on. At the beginning, however, it was clear that, in the words of Justice Story, the Constitution was �designed to cut off every pretence of an alliance between the Church and the State in the administration of the National Government.� Joseph Story, A Familiar Exposition of the Constitution of the United States 307 (Conservative Book Club, 1986) (1840). Chief Justice Moore is not satisfied to move his monument into some church, or onto some private property. No, his statement is very clear: if you are not a Christian, you cannot be a good and loyal believer in America�s founding principles.
If Chief Justice Moore can erect this monument, can not a Catholic Chief Justice erect a monument to the Virgin Mary? Or a Buddhist a monument to the Buddha? Perhaps you say yes, but Chief Justice Moore does not. As the Federal District Court (which Moore is defying) has noted,
�the Chief Justice has written that, �By leaving religion [seemingly] undefined, the [Supreme] Court has opened the door to the erroneous assumption that, under the Establishment Clause, religion could include Buddhism, Hinduism, Taoism, and whatever might occupy in man�s life a place parallel to that filled by God.... In such a case, God and religion are no longer distinguished in meaning, permitting the First Amendment to be used to exclude the very object it was meant to protect, namely the sovereignty of God over civil government.� In short, his definition of religion would permit the First Amendment to do what he believes it was intended to do: �to protect ... the sovereignty of God over civil government,� and sovereignty of the Judeo-Christian God only.� Glassroth v. Moore, 229 F.Supp.2d 1290, 1312-13 (M.D. Ala. 2002) (quoting Roy S. Moore, Religion in the Public Square, 29 Cumb. L.Rev. 347, 352, 356-57 (1998/1999)). In short, Chief Justice Moore�s message is simply to tell those who do not believe in his religion that they are not equally welcome in the state house of justice.
Chief Justice Moore is also dishonoring the people of good will in his own state who might believe that the Ten Commandments can be constitutionally displayed in a court�people like Attorney General Bill Pryor, who, as this letter shows, has acquitted himself as an honorable and professional man of the law�much in contrast with Chief Justice Moore�in a case which certainly puts him in a tough spot. Chief Justice Moore's actions harmful those decent Christians in Alabama who take their religion and their Constitution seriously, because this petty rebellion will simply foster the national perception of Alabama Christians as �some guy driving a tricked-up RV pasted with anti-abortion, anti-gay, anti-federal government slogans...[and] flying what looks to be some sort of religious flag and an upside-down US flag atop his war wagon.�
In the end, there are two things that condemn Chief Justice Moore even beyond the fact that he has betrayed the dignity of his office and the reputation of his state; two things worse than that he has dishonored the memory of James Madison and of others who fought for religious freedom; two things worse than the fact that he has sought to prescribe what shall be orthodox in religion, and to use the color of state law to make those who disagree with him feel that they are not a legitimate part of the nation, and not entitled to the freedom he claims to defend. No, worse than that is that Chief Justice Moore has betrayed his oath before God Himself. To take his position as Chief Justice, Roy Moore swore, on January 15, 2001, that he would support and defend the Constitution of the United States and of the state of Alabama. Now, he intends to purposely violate that oath and to place himself at variance with the law and the duly constituted authority of the federal courts. Perhaps he imagines, in the very zenith of arrogance, that he is taking as bold a step as an older generation of Alabamans, who also defied the Constitution of the United States, for an even more reprehensible motive. But Chief Justice Moore�s rebellion is petty and tin-plated, disgraceful even to the memory of those misguided, but honorable warriors. In short, Chief Justice Moore has lied to his state, lied to his country, and lied to his God.
Above even this, there is one thing that, to my mind, is even worse. It may be put simply: there is no harsher condemnation for any judge than to say: �this man knowingly broke the law.� Chief Justice Moore may puff himself up with pretensions of principle, but he is not principled. He is a lawbreaker; a criminal. He has intentionally violated our nation�s most fundamental law, and betrayed the oath he took before his God. And that, I feel, is worthy of the profoundest contempt.
Bork�s Book: Wait a second. Does Robert Bork really have a book coming out called �Coercing Virtue�? Robert Bork? He�s...against �coercing virtue�? This man has written that �Moral outrage is a sufficient ground for prohibitory legislation.� Robert Bork, The Tempting of America 124 (1990). From the context it is quite clear that he means any moral outrage, even where nobody is actually harmed by the behavior in question.
Of course, what Bork is mad about is the courts �coercing� the legislature by stopping them from illegalizing certain activities. In his view, the majority has the absolute right to control your life, unless the Constitution (made and alterable by the majority) explicitly states otherwise. There�s no right to privacy in the Constitution, he says, and therefore there is no right to privacy, and the legislature faces no such obstacle when it attempts to regulate, for example, private, adult, consensual sexual activity. So when the court steps in and says, �No, Mr. Bork, people have the right to run their lives without your interference,� he feels like he�s being imposed upon, because he believes government has a fundamental right to run your life! Bork believes that �in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.� Id. at 139. In other words, politics is solely and entirely an excercise in physical force.
This view he absurdly calls �Madisonian�! Id. Of course, the real James Madison would have had nothing whatsoever to do with the idea that Mr. Bork has a fundamental right to regulate the conduct of another person. In the view of the real James Madison, majorities had to justify their exercise of political power over individuals whenever they claimed the right to exercise such power. And that meant, they had to point to some grant of authority to the majority by the people. And that meant a presumption of liberty. �In Europe,� wrote Madison, �charters of liberty have been granted by power. America has set the example...of charters of power granted by liberty.� But to Bork, you only have that freedom which �society� chooses to give you. Why? Because freedom is nothing more than a gift from government. You belong to the society as a whole, which can decide what to do with you. See Bork, supra, at 121-122 (�No citizen should take the view that no part of him belongs to �society as a whole.��).
Lest you think I exaggerate, check out the introduction. Bork cares not a whit for freedom and individual rights: to him such concepts are practically meaningless. Instead, he is concerned about the �continuing usurpation by courts of the authority lodged in democratic government....� This, he says, is practically a �coup d�etat�! One might think, on encountering the use of such terms, that he was complaining about the state interfering in our lives, depriving us of our rights to life, liberty, and the pursuit of happiness. But no! Bork is complaining about government being deprived of its (alleged) right to make decisions about how you and I might live. He is not complaining about your rights being violated, but about the prerogatives of state legislatures being taken away.
Robert Bork believes in what Abraham Lincoln called �the �gur-reat pur-rinciple� that �if one man would enslave another, no third man should object,� fantastically called �Popular Sovereignty....��
He is, in the end, condemning the very concepts of judicial review and the rule of law, and advocating instead nothing short of the absolute tyranny of the majority. The tyranny of the majority, must I remind you, is nothing different than the tyranny of monarchy: only spread wider. But our founders believed that �an elective despotism was not the government we fought for.�
As John Locke said of Filmer, so we can say of Bork,
�Slavery is so vile and miserable an Estate of Man, and so directly opposite to the generous Temper and Courage of our Nation; that �tis hardly to be conveived that an [American], much less a Gentleman, should plead for�t.... [But] His system lies in a little compass, �tis no more but this,
�That all Government is absolute Monarchy.
�And the Ground he builds on, is this,
�That no Man is Born free.�
John Locke, First Treatise of Civil Government, reprinted in Two Treatises of Civil Government 175-176 (P. Laslett rev. ed. 1963)
Of course, what Bork is mad about is the courts �coercing� the legislature by stopping them from illegalizing certain activities. In his view, the majority has the absolute right to control your life, unless the Constitution (made and alterable by the majority) explicitly states otherwise. There�s no right to privacy in the Constitution, he says, and therefore there is no right to privacy, and the legislature faces no such obstacle when it attempts to regulate, for example, private, adult, consensual sexual activity. So when the court steps in and says, �No, Mr. Bork, people have the right to run their lives without your interference,� he feels like he�s being imposed upon, because he believes government has a fundamental right to run your life! Bork believes that �in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.� Id. at 139. In other words, politics is solely and entirely an excercise in physical force.
This view he absurdly calls �Madisonian�! Id. Of course, the real James Madison would have had nothing whatsoever to do with the idea that Mr. Bork has a fundamental right to regulate the conduct of another person. In the view of the real James Madison, majorities had to justify their exercise of political power over individuals whenever they claimed the right to exercise such power. And that meant, they had to point to some grant of authority to the majority by the people. And that meant a presumption of liberty. �In Europe,� wrote Madison, �charters of liberty have been granted by power. America has set the example...of charters of power granted by liberty.� But to Bork, you only have that freedom which �society� chooses to give you. Why? Because freedom is nothing more than a gift from government. You belong to the society as a whole, which can decide what to do with you. See Bork, supra, at 121-122 (�No citizen should take the view that no part of him belongs to �society as a whole.��).
Lest you think I exaggerate, check out the introduction. Bork cares not a whit for freedom and individual rights: to him such concepts are practically meaningless. Instead, he is concerned about the �continuing usurpation by courts of the authority lodged in democratic government....� This, he says, is practically a �coup d�etat�! One might think, on encountering the use of such terms, that he was complaining about the state interfering in our lives, depriving us of our rights to life, liberty, and the pursuit of happiness. But no! Bork is complaining about government being deprived of its (alleged) right to make decisions about how you and I might live. He is not complaining about your rights being violated, but about the prerogatives of state legislatures being taken away.
Robert Bork believes in what Abraham Lincoln called �the �gur-reat pur-rinciple� that �if one man would enslave another, no third man should object,� fantastically called �Popular Sovereignty....��
He is, in the end, condemning the very concepts of judicial review and the rule of law, and advocating instead nothing short of the absolute tyranny of the majority. The tyranny of the majority, must I remind you, is nothing different than the tyranny of monarchy: only spread wider. But our founders believed that �an elective despotism was not the government we fought for.�
As John Locke said of Filmer, so we can say of Bork,
�Slavery is so vile and miserable an Estate of Man, and so directly opposite to the generous Temper and Courage of our Nation; that �tis hardly to be conveived that an [American], much less a Gentleman, should plead for�t.... [But] His system lies in a little compass, �tis no more but this,
�That all Government is absolute Monarchy.
�And the Ground he builds on, is this,
�That no Man is Born free.�
John Locke, First Treatise of Civil Government, reprinted in Two Treatises of Civil Government 175-176 (P. Laslett rev. ed. 1963)
Social Security Act: The Curmudgeonly Clerk (wait a sec, wasn�t Bartleby a �curmudgeonly clerk�?) has some choice words for the Social Security Act. My favorite is from Schweiker v. Gray Panthers, 453 U.S. 34, 44 (1981):
�The Social Security Act is among the most intricate ever drafted by Congress. Its Byzantine construction, as Judge Friendly has observed, makes the Act �almost unintelligible to the uninitiated.� Friedman v. Berger, 547 F.2d 724, 727, n. 7 (2d Cir. 1976), cert. denied, 430 U.S. 984, 97 S.Ct. 1681, 52 L.Ed.2d 378 (1977). [FN14]
FN14. The District Court in the same case described the Medicaid statute as �an aggravated assault on the English language, resistant to attempts to understand it.� 409 F.Supp. 1225, 1226 (SDNY 1976).�
What would Madison think?:
�It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?�
�The Social Security Act is among the most intricate ever drafted by Congress. Its Byzantine construction, as Judge Friendly has observed, makes the Act �almost unintelligible to the uninitiated.� Friedman v. Berger, 547 F.2d 724, 727, n. 7 (2d Cir. 1976), cert. denied, 430 U.S. 984, 97 S.Ct. 1681, 52 L.Ed.2d 378 (1977). [FN14]
FN14. The District Court in the same case described the Medicaid statute as �an aggravated assault on the English language, resistant to attempts to understand it.� 409 F.Supp. 1225, 1226 (SDNY 1976).�
What would Madison think?:
�It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?�
Tuesday, August 19, 2003
Hey Tim, where are you?: H.L. Mencken once gave a speech to editorial writers, late in his career. His advice was to eliminate the editorial page of newspapers. His reason was that a paper should only publish an editorial when it had something to say, so establishing a daily editorial page meant that the paper would find itself forced to fill that page with something, and would therefore be obliged to publish worthless pieces every now and then. His advice was, if you don�t have anything substantive to say, don�t say anything. Hence my blog silence today.
Oh, but you might go check out the Sept/Oct issue of Liberty, which arrived in the mail today, and which contains my article on the Guinn v. Nevada Legislature case as well as my review of Bernard Bailyn�s To Begin The World Anew.
Oh, but you might go check out the Sept/Oct issue of Liberty, which arrived in the mail today, and which contains my article on the Guinn v. Nevada Legislature case as well as my review of Bernard Bailyn�s To Begin The World Anew.
Monday, August 18, 2003
Lead me!: Thanks to No Left Turns, I have found my next governor. Brooke Adams. Wow. Totally hot and she believes in liberty?! She can govern me any time.
Dickensian: Ever wonder why socialism became popular in England at the beginning of the Twentieth Century? Check this out, from a really excellent article by Andrew Morriss:
�...nineteenth-century trade unions in Britain actively bargained for an equivalent contractual rule, the �minute contract,� which lasted a minute and automatically renewed itself, to avoid a system of criminal penalties for employees who breached employment contracts by quitting. [FN7] To an inmate of a British jail serving six months hard labor for daring to leave his employer before the expiration of his contract, the employment-at-will rule would have been a significant improvement.�
[FN7]: ...The dominant feature of employment law in Britain between 1823 and 1875 was the extensive involvement of the state in enforcing employment contracts. The state gave employment contracts special treatment under several statutes. The most important of these statutes was 4 Geo. 4, 34, passed in 1823 (and extended to additional employees by 10 Geo. 4, 23).� Three important features of this statute were unique to Britain: (1) criminal enforcement of employment contracts was available against employees but not employers; (2) enforcement was through summary procedures conducted by local magistrates without juries; and (3) appeals were both formally limited and generally recognized as futile.... More than 100,000 employees were convicted of violating the Master and Servant Acts between 1860 and 1875, the only years for which there are data.�
Andrew P. Morriss, Bad Data, Bad Economics, And Bad Policy: Time to Fire Wrongful Discharge Law, 74 Tex. L. Rev. 1901, 1902 (1996)
�...nineteenth-century trade unions in Britain actively bargained for an equivalent contractual rule, the �minute contract,� which lasted a minute and automatically renewed itself, to avoid a system of criminal penalties for employees who breached employment contracts by quitting. [FN7] To an inmate of a British jail serving six months hard labor for daring to leave his employer before the expiration of his contract, the employment-at-will rule would have been a significant improvement.�
[FN7]: ...The dominant feature of employment law in Britain between 1823 and 1875 was the extensive involvement of the state in enforcing employment contracts. The state gave employment contracts special treatment under several statutes. The most important of these statutes was 4 Geo. 4, 34, passed in 1823 (and extended to additional employees by 10 Geo. 4, 23).� Three important features of this statute were unique to Britain: (1) criminal enforcement of employment contracts was available against employees but not employers; (2) enforcement was through summary procedures conducted by local magistrates without juries; and (3) appeals were both formally limited and generally recognized as futile.... More than 100,000 employees were convicted of violating the Master and Servant Acts between 1860 and 1875, the only years for which there are data.�
Andrew P. Morriss, Bad Data, Bad Economics, And Bad Policy: Time to Fire Wrongful Discharge Law, 74 Tex. L. Rev. 1901, 1902 (1996)
Forthcoming article: I signed the contract today to publish my article Liberal Originalism: A Past for The Future in the forthcoming Harvard Journal of Law & Public Policy. The article is a review of Scott D. Gerber's recent book Declaration of Independence: Origins And Impact.
Sunday, August 17, 2003
��In solitude
What happiness, who can enjoy alone,
Or all enjoying, what contentment find?...
Among unequals what societie
Can sort, what harmonie or true delight?
Which must be mutual, in proportion due
Giv�n and receiv�d; but in disparitie
The one intense, the other still remiss
Cannot well suite with either, but soon prove
Tedious alike: Of fellowship I speak
Such as I seek, fit to participate
All rational delight, wherein the brute
Cannot be human consort; they rejoyce
Each with thir kinde, Lion with Lioness;
So fitly them in pairs thou hast combin�d;
Much less can Bird with Beast, or Fish with Fowle
So well converse, nor with the Ox the Ape;
Wors then can Man with Beast, and least of all.
...[in God]
Is no deficience found; not so is Man,
But in degree, the cause of his desire
By conversation with his like to help,
Or solace his defects...
In unitie defective, which requires
Collateral love, and deerest amitie.�
�John Milton, Paradise Lost
What happiness, who can enjoy alone,
Or all enjoying, what contentment find?...
Among unequals what societie
Can sort, what harmonie or true delight?
Which must be mutual, in proportion due
Giv�n and receiv�d; but in disparitie
The one intense, the other still remiss
Cannot well suite with either, but soon prove
Tedious alike: Of fellowship I speak
Such as I seek, fit to participate
All rational delight, wherein the brute
Cannot be human consort; they rejoyce
Each with thir kinde, Lion with Lioness;
So fitly them in pairs thou hast combin�d;
Much less can Bird with Beast, or Fish with Fowle
So well converse, nor with the Ox the Ape;
Wors then can Man with Beast, and least of all.
...[in God]
Is no deficience found; not so is Man,
But in degree, the cause of his desire
By conversation with his like to help,
Or solace his defects...
In unitie defective, which requires
Collateral love, and deerest amitie.�
�John Milton, Paradise Lost
Minesweeper: I�m not much good at math, but I looked up some formulae and plugged through some factorals to find out how many arrangements of forty mines there can be in a 256 tile Minesweeper game (that would be the intermediate level). If I do my math correctly, there are 9.980 x 10413 possible initial arrangements of mines. (That�s 40! / 40!(256!� 40)! for those who�d like to double check).
That would be about a 1 with 412 zeroes after it. Now, according to this website, �Nowadays, the total number of particles in the universe has been variously estimated at numbers from 1072 up to 1087. The total number of atoms in your body is about 1028. If the universe were packed solid with neutrons, there would still be only 10128 particles�.� So there are truly a Vastly large number of possible Minesweeper outlays, so that every time you play a Minesweeper game, the chances are that it is absolutely unique, and that that game of Minesweeper will most likely never appear again in the history of the universe.
This is old hat to mathematics types, but possibly news to M., who claims to be the world�s greatest Minesweeper player, with a score of 36 seconds on Intermediate level. (Ever wonder what federal judicial clerks do with their time? Now you know.) I�ve checked, and sure enough, 36 appears on her top score list, although I can�t believe that possible. (Oh, and if you think I�m spending too much time calculating Minesweeper possibilities, I�m still nowhere as nerdy as this guy.)
That would be about a 1 with 412 zeroes after it. Now, according to this website, �Nowadays, the total number of particles in the universe has been variously estimated at numbers from 1072 up to 1087. The total number of atoms in your body is about 1028. If the universe were packed solid with neutrons, there would still be only 10128 particles�.� So there are truly a Vastly large number of possible Minesweeper outlays, so that every time you play a Minesweeper game, the chances are that it is absolutely unique, and that that game of Minesweeper will most likely never appear again in the history of the universe.
This is old hat to mathematics types, but possibly news to M., who claims to be the world�s greatest Minesweeper player, with a score of 36 seconds on Intermediate level. (Ever wonder what federal judicial clerks do with their time? Now you know.) I�ve checked, and sure enough, 36 appears on her top score list, although I can�t believe that possible. (Oh, and if you think I�m spending too much time calculating Minesweeper possibilities, I�m still nowhere as nerdy as this guy.)
