Saturday, October 25, 2003
Cold War: More Cold War reminiscence, at Pathetic Earthings.
Fire update: Fifty homes have been destroyed, and a new fire has started, near the Cal. State San Bernardino campus. The Santa Ana winds are blowing, so this fire has the potential of getting far worse. For those of you in other areas of the country, try to imagine a region shaped like an upside-down Y. That�s the figure made by the conjunction of the 15 and 215 freeways, which merge into the 15 on its way to Las Vegas. Where they merge is the Cajon Pass, which is the pass through the San Bernardino Mountains up to the Upper Desert of California. The Santa Ana winds are caused by the difference in the air temperature between the upper and lower deserts, and they blow very strong down that path�I�ve seen 70 mph winds. They come down that pass and hit the city of Rialto, which is between Fontana and Rancho Cucamonga on the west (that would be the bottom left of the upside-down Y, or the 15 Freeway) and San Bernardino on the east (the bottom right of that Y, which you reach by the 215). When they start, they blow for perhaps three or four days. They started yesterday, and are expected to reach 50 mph by tonight. They blow down the 15, which means that the winds are pushing the flames directly toward Cucamonga�which is almost entirely made up of large regions of tract homes. All residential.
This new fire is farther up on the upside-down Y, and a bit to the right. The winds there are a little less predictable, and my mother tells me that they are now pushing the fires north, toward the mountains. At the top of the mountains is Lake Arrowhead. Now, the reason this is a problem is that this year, the San Bernardino forests had a big problem with a tree beetle that has killed thousands of trees on the side of that mountain, leaving them extremely volatile fuel. If the flames hit those trees, the entire mountainside could go up, and the city of Lake Arrowhead will be destroyed. That new fire is the one near the Cal. State campus. The winds will not likely die down for two days or so. If the firemen can�t stop the flames in Cucamonga now, and the flames in San Bernardino soon, this could be an extremely disastrous fire.
This new fire is farther up on the upside-down Y, and a bit to the right. The winds there are a little less predictable, and my mother tells me that they are now pushing the fires north, toward the mountains. At the top of the mountains is Lake Arrowhead. Now, the reason this is a problem is that this year, the San Bernardino forests had a big problem with a tree beetle that has killed thousands of trees on the side of that mountain, leaving them extremely volatile fuel. If the flames hit those trees, the entire mountainside could go up, and the city of Lake Arrowhead will be destroyed. That new fire is the one near the Cal. State campus. The winds will not likely die down for two days or so. If the firemen can�t stop the flames in Cucamonga now, and the flames in San Bernardino soon, this could be an extremely disastrous fire.
Shopping: You know, a hundred bucks on groceries is a lot, especially for a single guy. But I felt it was my civic duty.
Oh, and big tragedy in Placerville. Our Taco Bell burned down last night.
Oh, and big tragedy in Placerville. Our Taco Bell burned down last night.
Trade barriers: So, Sandefur, you ask, if you�re damning corporations for their participation in communist atrocities, do you favor trade restrictions with China, or keeping the embargo against Cuba? Or do you think we ought to drop them?
I honestly cannot make up my mind. Many libertarians argue that trade helped to bring down the Soviet Union. And in fact, every time I meet with a refugee from communism, I ask them this question, and to a man, every one has said yes, we ought to trade with communist nations. One of these refugees, a college professor, told me �Yes, it was the availability of fax machines and VCRs and telephones that helped bring down the Soviet Union.� And certainly if the Marshall Plan helped prevent Western Europe from falling to the communists, trade with communist nations ought to help bring down those governments too, right? Others point out that when communist nations are isolated they tend to abuse their people worse than when they get new goods. Also, they point out that trade restrictions accomplish little, because the rulers continue to skim off the top, so that the only people who suffer from trade restrictions are the poorest and most oppressed. Finally, others point out that embargoes are often beneficial for communist dictators, who use the resulting economic stagnation for propaganda purposes. �The embargo,� Father Robert Sirico of the Catholic libertarian Acton Institute told me a few years ago, �is Fidel Castro�s single greatest propaganda tool. There are no capitalists in Cuba. But he can continue to blame his failures on capitalists by saying it�s the embargo.�
On the other hand, this doesn�t seem to make sense. As Herschensohn often says, if economic weakness is what destroyed the Soviet Union, why would economic health destroy the Chinese communist regime? Freedom of trade with a slave state may loosen certain economic restrictions, but it accomplishes less in the way of religious freedom or freedom of speech. China still has effective control over the freedom of communication. One would have looked askance at a man in 1860 who said �I am an abolitionist, and I think we ought to buy as much cotton from southern plantations as possible, because the increased wealth to the slaveowners will trickle down to the slaves, and improve their station in life.� Yet that�s exactly the argument made by those who advocate trade with dictatorships. If we trade with oppressive regimes, how are we not responsible for the continued oppression? Especially when that trade creates a situation where American companies are selling goods made by actual slave labor? It�s very hard to see the normalization of trade relations with China, so shortly after the Tienanmen Square Massacre, as anything less than callousness, or even a reward. As far as propaganda is concerned, I assume that Castro will find a way to turn anything or nothing into a propaganda tool. And although all the refugees from communism to whom I have spoken have advocated more trade�I�ve not spoken to Cuban refugees, who seem to support the embargo quite strongly. Nor should the ineffectiveness of the embargo count strongly against it, since we all know that we don�t enforce that embargo very strongly.
I would really appreciate anyone else�s insight on this question. What is the most effective way of fighting communism? Trade or embargo? It appears to me that the arguments balance out.
I honestly cannot make up my mind. Many libertarians argue that trade helped to bring down the Soviet Union. And in fact, every time I meet with a refugee from communism, I ask them this question, and to a man, every one has said yes, we ought to trade with communist nations. One of these refugees, a college professor, told me �Yes, it was the availability of fax machines and VCRs and telephones that helped bring down the Soviet Union.� And certainly if the Marshall Plan helped prevent Western Europe from falling to the communists, trade with communist nations ought to help bring down those governments too, right? Others point out that when communist nations are isolated they tend to abuse their people worse than when they get new goods. Also, they point out that trade restrictions accomplish little, because the rulers continue to skim off the top, so that the only people who suffer from trade restrictions are the poorest and most oppressed. Finally, others point out that embargoes are often beneficial for communist dictators, who use the resulting economic stagnation for propaganda purposes. �The embargo,� Father Robert Sirico of the Catholic libertarian Acton Institute told me a few years ago, �is Fidel Castro�s single greatest propaganda tool. There are no capitalists in Cuba. But he can continue to blame his failures on capitalists by saying it�s the embargo.�
On the other hand, this doesn�t seem to make sense. As Herschensohn often says, if economic weakness is what destroyed the Soviet Union, why would economic health destroy the Chinese communist regime? Freedom of trade with a slave state may loosen certain economic restrictions, but it accomplishes less in the way of religious freedom or freedom of speech. China still has effective control over the freedom of communication. One would have looked askance at a man in 1860 who said �I am an abolitionist, and I think we ought to buy as much cotton from southern plantations as possible, because the increased wealth to the slaveowners will trickle down to the slaves, and improve their station in life.� Yet that�s exactly the argument made by those who advocate trade with dictatorships. If we trade with oppressive regimes, how are we not responsible for the continued oppression? Especially when that trade creates a situation where American companies are selling goods made by actual slave labor? It�s very hard to see the normalization of trade relations with China, so shortly after the Tienanmen Square Massacre, as anything less than callousness, or even a reward. As far as propaganda is concerned, I assume that Castro will find a way to turn anything or nothing into a propaganda tool. And although all the refugees from communism to whom I have spoken have advocated more trade�I�ve not spoken to Cuban refugees, who seem to support the embargo quite strongly. Nor should the ineffectiveness of the embargo count strongly against it, since we all know that we don�t enforce that embargo very strongly.
I would really appreciate anyone else�s insight on this question. What is the most effective way of fighting communism? Trade or embargo? It appears to me that the arguments balance out.
Cold War: I�m glad to see I�m not the only one remembering Cold War anniversaries.
The Cold War: I�m watching the CNN documentary series The Cold War, which I bought on ebay a few days ago. It�s really excellent, and you should get a copy and watch it.
I�m struck right off by the guilt that American businesses have for the perpetuation of communism. We defenders of capitalism so often view the whole thing as business on one hand versus communism on the other�just as the communists themselves did. But the reality is that �multinational corporations� have a great deal of Russian blood on their hands. As the narration puts it in the CNN documentary, American businesses were happy to send representatives to the USSR to run giant make-work projects for Stalin�because when the projects were over, the businessmen could go back home to America.
American corporations share a great deal of guilt for the spread and survival of communism in the Twentieth Century. And to this very day, it continues. Look at China. I�d be pleased to see that the reports of China�s liberalization are true, and people I trust are convinced they are true. But China is still a blood-soaked totalitarian dictatorship, and American companies are doing businesses with them because they can undersell other companies by employing Chinese slave labor. As Bruce Herschensohn writes in Passport, �Businessmen [in Hong Kong] were eager to meet and impress their new masters, the representatives of the People�s Republic of China. Their eagerness was part of their religion, because their religion was a wallet. They all had fat ones, and they wanted to increase their fatness. Good wallets made by Bally and Gold Pfeil and Kenneth Cole.�
Yes, the leftists are right that international corporations are guilty of terrible, terrible sins. Only those sins aren�t what the leftists say. The real sins are the fact that corporations have propped up communist governments, participating in trade with them on the pretext of international �understanding,� and thus profited off of slave labor. While the left screams about �sweatshops,��which is to say, voluntary employment contracts which benefit the poor in other nations�they don�t complain about the fact that the tools that communist nations use in oppressing their people (who do not have the choice of refusing to work in those factories) are made and financed by corporations in the United States. And they don�t talk about the fact that the best way to stop such abuses is by separating government and economics through a genuinely free market.
Take eminent domain, for instance. As I recently wrote, �[w]hen the Olympic games came to Atlanta in 1996, thousands of people lost their homes and businesses through eminent domain�. [O]nly a few years later, China was condemned by some human rights groups for doing exactly the same thing to attract the Olympics to Beijing.� Timothy Sandefur, A Natural Rights Perspective on Eminent Domain�, 32 Sw U. L. Rev. 569, 670-71 (2003). Corporations like Costco and Pfizer and Nissan and Jeep are using government to steal property from poor people for their own private profit on the pretext that doing so helps the economy. But that�s nothing less than fascism, and the proper solution is a regime of strict adherence to private property rights. As one of the delegates to the California Constitutional Convention of 1849 put it,
And then, when it is time that the corporations ought to play rough, they don�t! The worst enemies of capitalism are so often the corporations, which are willing to, as Lenin was fond of saying, sell collectivists the rope to hang their very selves. Just look at Nike selling out on the Kasky case. The principle of free speech, after all, wouldn�t make them as much money. Or McDonald�s, settling the case with the fat man who couldn�t stop eating McDonald�s! These businessmen ought to be ashamed, if only they were capable of shame. They are as guilty as the frauds who sue them. They are capitulating to an enemy to whom they could mount a resistance, but they refuse. As Ayn Rand was fond of saying, if freedom is ever destroyed, the fault will not lie so much with the enemies of freedom as with its alleged friends, who did not lift a finger to save it.
I�m struck right off by the guilt that American businesses have for the perpetuation of communism. We defenders of capitalism so often view the whole thing as business on one hand versus communism on the other�just as the communists themselves did. But the reality is that �multinational corporations� have a great deal of Russian blood on their hands. As the narration puts it in the CNN documentary, American businesses were happy to send representatives to the USSR to run giant make-work projects for Stalin�because when the projects were over, the businessmen could go back home to America.
American corporations share a great deal of guilt for the spread and survival of communism in the Twentieth Century. And to this very day, it continues. Look at China. I�d be pleased to see that the reports of China�s liberalization are true, and people I trust are convinced they are true. But China is still a blood-soaked totalitarian dictatorship, and American companies are doing businesses with them because they can undersell other companies by employing Chinese slave labor. As Bruce Herschensohn writes in Passport, �Businessmen [in Hong Kong] were eager to meet and impress their new masters, the representatives of the People�s Republic of China. Their eagerness was part of their religion, because their religion was a wallet. They all had fat ones, and they wanted to increase their fatness. Good wallets made by Bally and Gold Pfeil and Kenneth Cole.�
Yes, the leftists are right that international corporations are guilty of terrible, terrible sins. Only those sins aren�t what the leftists say. The real sins are the fact that corporations have propped up communist governments, participating in trade with them on the pretext of international �understanding,� and thus profited off of slave labor. While the left screams about �sweatshops,��which is to say, voluntary employment contracts which benefit the poor in other nations�they don�t complain about the fact that the tools that communist nations use in oppressing their people (who do not have the choice of refusing to work in those factories) are made and financed by corporations in the United States. And they don�t talk about the fact that the best way to stop such abuses is by separating government and economics through a genuinely free market.
Take eminent domain, for instance. As I recently wrote, �[w]hen the Olympic games came to Atlanta in 1996, thousands of people lost their homes and businesses through eminent domain�. [O]nly a few years later, China was condemned by some human rights groups for doing exactly the same thing to attract the Olympics to Beijing.� Timothy Sandefur, A Natural Rights Perspective on Eminent Domain�, 32 Sw U. L. Rev. 569, 670-71 (2003). Corporations like Costco and Pfizer and Nissan and Jeep are using government to steal property from poor people for their own private profit on the pretext that doing so helps the economy. But that�s nothing less than fascism, and the proper solution is a regime of strict adherence to private property rights. As one of the delegates to the California Constitutional Convention of 1849 put it,
Corporations as they were originally known to the Roman law, had several beneficial properties. One was the power of succession, by which the property of the corporation does not become subdivided into the hands of the heirs, but remains subject to the rules of the corporation. Another was, to sue and be sued in their corporate capacity, instead of being regarded as a partnership merely of individuals. These were the useful properties of these corporations as known to the Roman law. The institution as it was known when adopted by the common law, had engrafted upon it this doctrine: that to establish a corporation was the great prerogative of the crown; and it followed soon with the numerous other prerogatives of the crown, that it was claimed by the crown; and certain great privileges and immunities were given to these corporations. This is the evil which we have followed so nearly in our own country, and of which we have such grievous cause to complain. I propose now to deny the Legislature the power of creating them for the purposes which we do not desire, and to give it the privilege of creating them for all useful purposes. The Legislature should not be permitted to grant exclusive privileges to these corporations; they are then not only harmless, but they are useful.J. Ross Browne, Report of The Debates of The Convention of California, on The Formation of The State Constitution, In September And October, 1849 at 124-25 (1850).
And then, when it is time that the corporations ought to play rough, they don�t! The worst enemies of capitalism are so often the corporations, which are willing to, as Lenin was fond of saying, sell collectivists the rope to hang their very selves. Just look at Nike selling out on the Kasky case. The principle of free speech, after all, wouldn�t make them as much money. Or McDonald�s, settling the case with the fat man who couldn�t stop eating McDonald�s! These businessmen ought to be ashamed, if only they were capable of shame. They are as guilty as the frauds who sue them. They are capitulating to an enemy to whom they could mount a resistance, but they refuse. As Ayn Rand was fond of saying, if freedom is ever destroyed, the fault will not lie so much with the enemies of freedom as with its alleged friends, who did not lift a finger to save it.
Friday, October 24, 2003
Killing the golden goose: If you didn�t think Bus. & Prof. Code � 17200 (the overly-broad Unfair Competition Law by which lawyers get rich by extorting businesses throughout the state) was bad enough for the economy, just you wait.
From the Doc: Yeah, just like that scene in Life of Brian!
Update: Oops, his permalinks are not working.... Never mind!
Update: Oops, his permalinks are not working.... Never mind!
Ted Rall: Is an example of a political cartoonist with whose views I usually do not agree, but whom I find very talented and amusing. Here�s a good example of that.
Why I love Sarah Hempel: I mean, other than her quoting me at the top of her page.... �I had just purchased studio insurance earlier that afternoon and told Farmer Jim that I, too, had liability insurance. We imagined a model, stark naked, falling down and having to somehow explain the situation to the paramedic. We laughed like crazy and then I bought some potatoes.�
Words of wisdom: �The United States government has so much money and power that its slightest intervention to do good has the unfortunate effect of changing the entire context in which people act.� Finley v. National Endowment for the Arts, 100 F.3d 671, 690 (9th Cir. 1996) (Kleinfeld, J., dissenting).
Fire: My friend Erin L., back in southern California, lives right in the path of this Fontana fire, in an area called �Hunter�s Ridge,� which is being evacuated at this moment. I called, but got no answer on her cel-phone. If anyone has any details, please let me know. My mother, who works at a school in Rialto, about 15 minutes away, reports that the ashes are falling so thickly that the children are kicking them up like snowbanks.
Update: Erin just wrote: �Just got home ... house is fine, but had to evacuate for the morning and afternoon ... missed the house by about 50 yards, but all is well.� Much relief.
Update: Erin just wrote: �Just got home ... house is fine, but had to evacuate for the morning and afternoon ... missed the house by about 50 yards, but all is well.� Much relief.
Nonsense!: En Banc is trying to start something by listing the twenty best movies of the last twenty years and leaves Ghostbusters off the list. Ghostbusters is the ultimate 80s movie. Think about it. What�s the message of Ghostbusters? Entrepreneurial capitalism will overcome the Apocalypse itself! Now that is the 1980s. And what other movie has the EPA as the bad guy? I love that flick!
Update: In a tangentially related vein, Prof. Barnett has a conversation going about the plusses and minuses of Star Treks. I�m a Star Trek fan from way back, and I�ve always preferred the original series. To me, the whole sense of the original series was that you had all this high technology, this fantastic warp drive and transporter and phasers and so on, but when push came to shove, the Enterprise crew had to rely on their humanity to solve their problems. The message of TNG was that you had this giant ship with over a thousand people on it, but when push came to shove, they had to rely on their technology to solve their problems. Borrr-inggg.
Update: In a tangentially related vein, Prof. Barnett has a conversation going about the plusses and minuses of Star Treks. I�m a Star Trek fan from way back, and I�ve always preferred the original series. To me, the whole sense of the original series was that you had all this high technology, this fantastic warp drive and transporter and phasers and so on, but when push came to shove, the Enterprise crew had to rely on their humanity to solve their problems. The message of TNG was that you had this giant ship with over a thousand people on it, but when push came to shove, they had to rely on their technology to solve their problems. Borrr-inggg.
Bork v. Scalia?: Legal Theory Blog reports that Justice Scalia was attacking liberal jurisprudence the other day. Apparently Justice Scalia complained that �[m]ost of today�s experts on the Constitution think...[a]ll that the person interpreting or applying that document has to do is to read up on the latest academic understanding of liberal political theory and interpolate these constitutional understandings into the constitutional text.� But just yesterday, Judge Bork said that the proper way to interpret the Constitution was to learn �empirically� about the effects of constitutional assumptions, and then �choose between what the Framers wrote,� and the consequences of such empirical observation. In other words, we are supposed to read up on the latest academic understanding of certain issues�such as whether �equality could be achieved with segregation� or not�and then interpolate this new understanding into the constitutional text.
Jesus!: The actor playing Christ in Mel Gibson�s The Passion has been struck by lightning. Again!
Po-mo dead?: This article makes the obvious, but too-rarely heard point that �postmodernists have drawn unwarranted conclusions about a general epistemological crisis from, for example, Heisenberg�s Uncertainty Principle.� Right on! But there is something really tragic about the fact that saying �[t]here is (as most of us thought all along) a pre-existing external reality about which it is the job of science to tell us,� and �that science can no longer be considered as just another myth or story� could be considered radical reform. But it�s at least a positive start.
Thursday, October 23, 2003
CCCP: I found this utterly chilling book at an antique store here in Sacramento a few months ago. It�s The History of The Communist Party of The Soviet Union, published in 1939 by the Central Committee of the CPSU, and distributed by International Publishers, New York. Here�s a taste:
�The trials brought to light the fact that the Trotsky-Bukharin fiends, in obedience to the wishes of their masters�the espionage services of foreign states�had set out to destroy the Party and the Soviet states�had set out to destroy the Party and the Soviet state, to undermine the defensive power of the country, to assist foreign military intervention, to prepare the way for the defeat of the Red Army.... These Whiteguard pigmies, whose strength was no more than that of a gnat, apparently flattered themselves that they were the masters of the country.... These Whiteguard insects forgot that the real masters of the Soviet country were the Soviet people, and that the Rykovs, Bukharins, Zinovievs, and Kamenevs were only temporary employees of the state, which could at any moment sweep them out from its offices as so much useless rubbish. These contemptible lackeys of the fascists forgot that the Soviet people had only to move a finger, and not a trace of them would be left.
�The Soviet court sentenced the Bukharin-Trotsky fiends to be shot.
�The People�s Commissariat of Internal Affairs carried out the sentence.
�The Soviet people approved the annihilation of the Bukharin-Trotsky gang and passed on to next business....�
Id. at 347-48.
Never forget!
�The trials brought to light the fact that the Trotsky-Bukharin fiends, in obedience to the wishes of their masters�the espionage services of foreign states�had set out to destroy the Party and the Soviet states�had set out to destroy the Party and the Soviet state, to undermine the defensive power of the country, to assist foreign military intervention, to prepare the way for the defeat of the Red Army.... These Whiteguard pigmies, whose strength was no more than that of a gnat, apparently flattered themselves that they were the masters of the country.... These Whiteguard insects forgot that the real masters of the Soviet country were the Soviet people, and that the Rykovs, Bukharins, Zinovievs, and Kamenevs were only temporary employees of the state, which could at any moment sweep them out from its offices as so much useless rubbish. These contemptible lackeys of the fascists forgot that the Soviet people had only to move a finger, and not a trace of them would be left.
�The Soviet court sentenced the Bukharin-Trotsky fiends to be shot.
�The People�s Commissariat of Internal Affairs carried out the sentence.
�The Soviet people approved the annihilation of the Bukharin-Trotsky gang and passed on to next business....�
Id. at 347-48.
Never forget!
The Bork Pretzel: Cass Sunstein, I think, once said that people will accept any constitutional theory at all so long as it holds that Brown v. Board of Education was rightly decided. So Bork has to twist around to find some way to do it. So he says in this interview (which I also saw on Southern Appeal),
The framers of the Fourteenth Amendment knew that they had segregated public schools...so that they wrote a requirement of equality in, assuming that separate but equal was equal.... We then know over a period of 50 or so years that it�s never equal. You know that empirically. You keep litigating cases about segregated college and segregated high schools, segregated drinking fountains, on and on.... Finally you realize that there�s never going to be equality under segregation. At that point, you have to choose between what the Framers wrote, which was equal protection of the laws and what they assumed that equality could be achieved with segregation.... I think it�s proper to choose what they wrote and the basic principle of equality rather than their assumption that segregation was consistent with equality.(Emphasis added) Um. Great! I certainly agree with that. But here�s the question: why does that not apply to state discrimination against homosexuals?
Hewitt and Boykin: I�m not one to hand out praise lightly to Prof. Hewitt, and I often disagree with his causes. But I think he�s been doing genuine journalism on this Boykin story. If this guy really went out there and said we should all go wage war on non-Christians, that would be deplorable. But nobody knows that the General really said, and it�s beginning to look more and more like his comments were nothing more than �expressions of a deeply-felt faith delivered to audiences of fellow believers��something that it is entirely appropriate for an American, including a military man, to do. Indeed, it�s supposed to be among our most cherished freedoms. Examples are certainly not far to seek.
From George Washington:
I�m not convinced there�s some vast atheist conspiracy to war against all Christians, but I do think there�s a tendency, especially strong in the media, to interpret expressions of religious belief in the worst possible light.
From George Washington:
A contemplation of the compleat attainment (at a period earlier than could have been expected) of the object for which we contended against so formidable a power cannot but inspire us with astonishment and gratitude. The disadvantageous circumstances on our part, under which the war was undertaken, can never be forgotten. The singular interpositions of Providence in our feeble condition were such, as could scarcely escape the attention of the most unobserving; while the unparalleled perseverence of the Armies of the U States, through almost every possible suffering and discouragement for the space of eight long years, was little short of a standing miracle.Oh no! Washington�s calling for jihad!
I�m not convinced there�s some vast atheist conspiracy to war against all Christians, but I do think there�s a tendency, especially strong in the media, to interpret expressions of religious belief in the worst possible light.
17200: Is there a chance for fixing California�s disastrous Unfair Competition Law (Bus. & Prof. Code � 17200)? We can hope, but I�m not holding my breath.
Madison: A nice brief reflection on James Madison from Roger Clegg (which I saw on Southern Appeal). I�m a proud member of the Friends of Montpelier, and would encourage you all to join and to visit Madison�s home. In the past few years, the progress of restoration has been really outstanding.
Religious conservatives: My friend Erik Peterson has an excellent response to the question I posed him yesterday. It is time for the so-called Christian conservatives to admit that they are not Christian conservatives, but members of a particular religious viewpoint that excludes large groups of religious believers, including such Christian sects as Mormons, Quakers, and Unitarians.
Arkes: Prof. Solum cites Prof. Arkes� column here, and says �I have absolutely no idea what Arkes is talking about.� I�m feel I should come to Arkes� defense, because I admire Arkes, and strongly endorse his book The Return of George Sutherland, which I think is the best book on law that I�ve ever read. But I think Arkes goes so wrong in some places�including in this article!
Arkes is arguing that the abandonment of religious morality�in which Arkes emphatically believes�has led to government being nothing more than a power-struggle without principles. Without natural law, the legal system has nothing to which it can appeal to demonstrate its own rightfulness�law is whatever the stronger power says. And Arkes is right that many professors (and Supreme Court Justices) today think it is woefully unsophisticated to think there could be such a thing as a connection between morality and law. And they argue that their position is more rational because morality isn�t rational, and is just based on emotion or collective whim; they �insist that there are no �foundations� for moral judgment� to be found in nature. And if that is the case, Arkes believes, there is no reason that those possessed of political power ought not to use that power for their own gain. Going that far, I agree entirely with Arkes. The problem is, he does not understand any difference between natural law and religion. I should have a response to some of Arkes� arguments in my forthcoming Harvard Journal of Law & Public Policy article.
Arkes is arguing that the abandonment of religious morality�in which Arkes emphatically believes�has led to government being nothing more than a power-struggle without principles. Without natural law, the legal system has nothing to which it can appeal to demonstrate its own rightfulness�law is whatever the stronger power says. And Arkes is right that many professors (and Supreme Court Justices) today think it is woefully unsophisticated to think there could be such a thing as a connection between morality and law. And they argue that their position is more rational because morality isn�t rational, and is just based on emotion or collective whim; they �insist that there are no �foundations� for moral judgment� to be found in nature. And if that is the case, Arkes believes, there is no reason that those possessed of political power ought not to use that power for their own gain. Going that far, I agree entirely with Arkes. The problem is, he does not understand any difference between natural law and religion. I should have a response to some of Arkes� arguments in my forthcoming Harvard Journal of Law & Public Policy article.
Wednesday, October 22, 2003
My favorite bumper sticker: �Small minds discuss people, medium minds discuss events, large minds discuss ideas.�
The last battle of the Civil War: Well, Liberty is still holding off on publishing my latest Civil War article, but Stephan Kinsella has a post here about it, so here we go yet again.
First, Kinsella writes, �I emailed Sandefur to give him a chance to correct my understanding of his views, but he has not done so.� Well, he emailed me at 9am, when I was on my way to work. I got home at 7, took my walk at 8, and was on the phone with my girlfriend till just now, so forgive my lateness.
Second, Kinsella writes �According to his theory, whether or not the Southern States had slavery, their act of revolution was not justified. Suppose all the Southern states had abolished slavery and then seceded anyway. Sandefur would maintain that the secession is criminal, unconstitutional, and not justified�because it is not in response to a long train of acts of despotism, tyranny, or abuse by the Union.� To this I must once again repeat, yes, that was my argument all along. I am sorry if this was unclear. I�ve tried to make it as clear as I possibly can:
Unilateral secession is unconstitutional and illegal. The President of the United States is charged with the Constitutional duty to see that the laws are faithfully executed. If people resist him at point of arms�that is to say, if they initiate force�he has the Constitutional authority to use arms to enforce the law, even if that means killing people. The police sometimes have to kill a gunman in order to enforce the law. (Kinsella would describe this by saying that the policeman is �endors[ing] all this killing.�) On the other hand, if a person is being oppressed, he has the right to shoot his oppressors, and the cops ought not to stop him. Similarly, a state might secede if it was defending freedom against oppression. That would be an act of revolution. That was not going on in 1861, however, because the states were seceding, not to protect liberty, but to protect slavery. In the cop hypo, the question is, Was the gunman violating the law, or was he engaged in a legitimate act of self-defense? Likewise, in the Civil War, were the law-breakers of the South acting in self defense or not? The �legalistic� issue is the same: is the illegal act nevertheless a justified act of revolution? On that rests all the difference.
Third, Kinsella writes that I �get[ ] righteous and saying that millions of deaths is justified to stop the horrible scourge of slavery�.� Let�s be clear. I responded to a letter to the editor which asked whether it was worth 600,000 deaths to end slavery. The answer, I said, and I still say, is yes. It would have been worth it at a million times that cost. If this is �getting righteous,� well, make the most of it. I would think it was far more embarrassing to �get righteous� by saying that abolishing slavery was not worth �all this killing.�
Finally, Kinsella finds it puzzling that one could find the Revolution of 1776 legitimate, but not the Confederate secession. The answer is that it fits the analysis I have explained. The Revolution was an act of revolution because it was a response to an initiation of force�that is, it was a defiance of the Parliament�s claim to bind the colonies in all cases whatsoever�the same claim, of course, that was made by the slave power towards the slaves. The Declaration of Independence makes clear the grounds on which revolution is justified�that when a long train of abuses has evinced a design to reduce a people under absolute despotism, it is their right and their duty to throw off such government. On these grounds, yes, absolutely the slaves would have had the legitimate right to rise up and slay their masters at any time. (Oh! I�m endorsing �all this killing� again!) If Kinsella wants to say that the American revolutionaries were hypocrites for continuing to hold slaves while issuing the Declaration, well, I�ll certainly concede that mundane point.
I will try one more time to be as clear as I possibly can, so that I might not be accused of attempting to avoid anything which I have repeatedly tried to make clear: unilateral secession is unconstitutional and illegal. The President has the Constitutional duty to see that the laws are faithfully executed, and if people resist the execution of the law at point of arms, the President has the lawful duty to use arms to put down that rebellion. This is true regardless of whether slavery is involved or not. Secession might, however, be a legitimate act of revolution, if it were done to preserve freedom against oppression, as was the case in the American Revolution. That, however, was not the case in the Civil War, because the south seceded, not to preserve freedom, but to perpetuate the enslavement of millions of innocents. To the question raised by a letter to the editor in response to one of my articles, I believe it is absolutely worth 600,000 deaths to have freed the slaves, and I believe it would be worth it at ten million times that price. (Joseph Sobran has conceded this point, and has even exceeded my estimate by saying, in print, that he believes it was worth billions of lives to free even a single slave.)
I expect this to be my last word on the subject. I have made my point repeatedly clear, and all that I get back from the other side is accusations that I love seeing people killed, and that I�m just a puppet of Harry Jaffa, and so on and so forth. They�ve proposed no serious analytical answer to the arguments I�ve mustered, and all they do is insist that libertarianism means that if a state wishes to oppress its own people without interference from Washington, it has the sovereign right to do so.
P.S.: Oh, and DiLorenzo says that I am �merely repeating what Harry Jaffa taught [me] when [I] was a Lincoln Fellow at Claremont.� Of course, I wrote all my Civil War articles before receiving the Lincoln Fellowship, but we all know that Prof. DiLorenzo has had problems keeping dates straight.
First, Kinsella writes, �I emailed Sandefur to give him a chance to correct my understanding of his views, but he has not done so.� Well, he emailed me at 9am, when I was on my way to work. I got home at 7, took my walk at 8, and was on the phone with my girlfriend till just now, so forgive my lateness.
Second, Kinsella writes �According to his theory, whether or not the Southern States had slavery, their act of revolution was not justified. Suppose all the Southern states had abolished slavery and then seceded anyway. Sandefur would maintain that the secession is criminal, unconstitutional, and not justified�because it is not in response to a long train of acts of despotism, tyranny, or abuse by the Union.� To this I must once again repeat, yes, that was my argument all along. I am sorry if this was unclear. I�ve tried to make it as clear as I possibly can:
Unilateral secession is unconstitutional and illegal. The President of the United States is charged with the Constitutional duty to see that the laws are faithfully executed. If people resist him at point of arms�that is to say, if they initiate force�he has the Constitutional authority to use arms to enforce the law, even if that means killing people. The police sometimes have to kill a gunman in order to enforce the law. (Kinsella would describe this by saying that the policeman is �endors[ing] all this killing.�) On the other hand, if a person is being oppressed, he has the right to shoot his oppressors, and the cops ought not to stop him. Similarly, a state might secede if it was defending freedom against oppression. That would be an act of revolution. That was not going on in 1861, however, because the states were seceding, not to protect liberty, but to protect slavery. In the cop hypo, the question is, Was the gunman violating the law, or was he engaged in a legitimate act of self-defense? Likewise, in the Civil War, were the law-breakers of the South acting in self defense or not? The �legalistic� issue is the same: is the illegal act nevertheless a justified act of revolution? On that rests all the difference.
Third, Kinsella writes that I �get[ ] righteous and saying that millions of deaths is justified to stop the horrible scourge of slavery�.� Let�s be clear. I responded to a letter to the editor which asked whether it was worth 600,000 deaths to end slavery. The answer, I said, and I still say, is yes. It would have been worth it at a million times that cost. If this is �getting righteous,� well, make the most of it. I would think it was far more embarrassing to �get righteous� by saying that abolishing slavery was not worth �all this killing.�
Finally, Kinsella finds it puzzling that one could find the Revolution of 1776 legitimate, but not the Confederate secession. The answer is that it fits the analysis I have explained. The Revolution was an act of revolution because it was a response to an initiation of force�that is, it was a defiance of the Parliament�s claim to bind the colonies in all cases whatsoever�the same claim, of course, that was made by the slave power towards the slaves. The Declaration of Independence makes clear the grounds on which revolution is justified�that when a long train of abuses has evinced a design to reduce a people under absolute despotism, it is their right and their duty to throw off such government. On these grounds, yes, absolutely the slaves would have had the legitimate right to rise up and slay their masters at any time. (Oh! I�m endorsing �all this killing� again!) If Kinsella wants to say that the American revolutionaries were hypocrites for continuing to hold slaves while issuing the Declaration, well, I�ll certainly concede that mundane point.
I will try one more time to be as clear as I possibly can, so that I might not be accused of attempting to avoid anything which I have repeatedly tried to make clear: unilateral secession is unconstitutional and illegal. The President has the Constitutional duty to see that the laws are faithfully executed, and if people resist the execution of the law at point of arms, the President has the lawful duty to use arms to put down that rebellion. This is true regardless of whether slavery is involved or not. Secession might, however, be a legitimate act of revolution, if it were done to preserve freedom against oppression, as was the case in the American Revolution. That, however, was not the case in the Civil War, because the south seceded, not to preserve freedom, but to perpetuate the enslavement of millions of innocents. To the question raised by a letter to the editor in response to one of my articles, I believe it is absolutely worth 600,000 deaths to have freed the slaves, and I believe it would be worth it at ten million times that price. (Joseph Sobran has conceded this point, and has even exceeded my estimate by saying, in print, that he believes it was worth billions of lives to free even a single slave.)
I expect this to be my last word on the subject. I have made my point repeatedly clear, and all that I get back from the other side is accusations that I love seeing people killed, and that I�m just a puppet of Harry Jaffa, and so on and so forth. They�ve proposed no serious analytical answer to the arguments I�ve mustered, and all they do is insist that libertarianism means that if a state wishes to oppress its own people without interference from Washington, it has the sovereign right to do so.
P.S.: Oh, and DiLorenzo says that I am �merely repeating what Harry Jaffa taught [me] when [I] was a Lincoln Fellow at Claremont.� Of course, I wrote all my Civil War articles before receiving the Lincoln Fellowship, but we all know that Prof. DiLorenzo has had problems keeping dates straight.
Today in Cold War history: Today is the anniversary of John F. Kennedy�s address to the nation on the Cuban Missile Crisis.
I finished Bruce Herschensohn�s excellent new novel, Passport last night. I hope you�ll pick up a copy soon. It has really got me interested in reviewing the history of the Cold War, only the last of which I was alive to witness. Herschensohn wants to remind us especially of the courage with which Kennedy pledged to �pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty.� I think our generation must make that same pledge.
Indeed, I would suggest that our generation�s three greatest challenges are the following (in no order): 1) To end the Drug War, a massive failure which has cost untold numbers of innocent lives, increased poverty and suffering in America�s inner cities and third world nations, and done absolutely no good in preventing people from something they have the right to do in the first place; 2) Ending communist domination of Asia, beginning with the 1/5th of the human species who linger now in slavery in China, and North Korea, and Vietnam; and 3) Re-establishing the fundamental constitutional rights to property and economic liberty. Obviously I�m biased on this last one, but I think it�s right. The victims of the insolence of office and the law�s delay are the poor and the minorities, who have no avenue out of the inner city, because those avenues are cut off by licensing laws, minimum wage laws, union protectionism, and all sorts of regulations that deter entrepreneurialism and the growth of business in the inner cities�all to keep the established businesses (or the established unions) happy.
I finished Bruce Herschensohn�s excellent new novel, Passport last night. I hope you�ll pick up a copy soon. It has really got me interested in reviewing the history of the Cold War, only the last of which I was alive to witness. Herschensohn wants to remind us especially of the courage with which Kennedy pledged to �pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty.� I think our generation must make that same pledge.
Indeed, I would suggest that our generation�s three greatest challenges are the following (in no order): 1) To end the Drug War, a massive failure which has cost untold numbers of innocent lives, increased poverty and suffering in America�s inner cities and third world nations, and done absolutely no good in preventing people from something they have the right to do in the first place; 2) Ending communist domination of Asia, beginning with the 1/5th of the human species who linger now in slavery in China, and North Korea, and Vietnam; and 3) Re-establishing the fundamental constitutional rights to property and economic liberty. Obviously I�m biased on this last one, but I think it�s right. The victims of the insolence of office and the law�s delay are the poor and the minorities, who have no avenue out of the inner city, because those avenues are cut off by licensing laws, minimum wage laws, union protectionism, and all sorts of regulations that deter entrepreneurialism and the growth of business in the inner cities�all to keep the established businesses (or the established unions) happy.
Christian conservatives: I have repeatedly made the argument that Christian conservatives portray themselves as nothing more than ecumenical defenders of Decent Godfearing Folks, when in reality they are papering over serious theological differences between, for instance, Mormons and Catholics. Here�s a great example. Thomas Krannawitter certainly has a right to disagree with the suggestion that Christianity is inherently pacifistic, but who is he to say that that argument is just a sham? He writes that pacifists are �promot[ing] such a teaching disguised as Christianity.� Yet Christian pacifism is centuries old�at least as old as the Quakers. Yes, George Washington and others criticized the Quakers for their refusal to take up arms. But he never questioned the inherent validity of their belief as a political matter. Indeed, he would have recognized that it is not for those in the political realm to start throwing around charges like �Well, that�s not real Christianity.� Conservatives who want more religion in politics are arguing for a world in which political dialogue would become infected with charges like that. Indeed, Krannawitter uses the repugnant phrase �the traditional American view of Christian theology�! The suggestion that there could even be such a thing as an American view of theology ought to be especially disturbing to discrete and insular minority religions such as the LDS church. What do you say, Erik? I say these conservatives must stop portraying themselves as ecumenical defenders of simple decency. Are Quakers or Mormons allowed to call themselves Christians in a conservative world?
Fame!: Thanks to En Banc and The Right Coast for the permalinks. Freespace grows by leaps and bounds. For those who are new, feel free to linger, light up a few, and read about me, and keep in mind that Freespace is entirely a personal weblog and does not reflect the opinions of the staff, management, or supporters of the Pacific Legal Foundation.
Nathaniel Heatwole: That�s the guy who planted the boxcutters and things on the plane to demonstrate that the airplane security procedures are inadequate. It reminded me of the following Richard Feynman story. Feynman was, as you�ll recall, working at Los Alamos on the atomic bomb project during World War II. Later he recalled,
�One day I discovered that the workmen who lived further out and wanted to come in were too lazy to go around through the gate, and so they had cut themselves a hole in the fence. So I went out the gate, went over to the hole, and came in, went out again, and so on, until the sergeant at the gate began to wonder what was happening. How come this guy is always going out and never coming in? And of course, his natural reaction was to call the lieutenant and try to put me in jail for doing this. I explained that there was a hole.�
Richard Feynman, Surely You�re Joking, Mr. Feynman! 101 (Bantam, 1991) (1985) (emphasis added).
�One day I discovered that the workmen who lived further out and wanted to come in were too lazy to go around through the gate, and so they had cut themselves a hole in the fence. So I went out the gate, went over to the hole, and came in, went out again, and so on, until the sergeant at the gate began to wonder what was happening. How come this guy is always going out and never coming in? And of course, his natural reaction was to call the lieutenant and try to put me in jail for doing this. I explained that there was a hole.�
Richard Feynman, Surely You�re Joking, Mr. Feynman! 101 (Bantam, 1991) (1985) (emphasis added).
SAT: American rule of education number one: if the kids are failing the test, change the test. I mean, what career would a kid ever go into that might require reasoning by analogy?
St. Theresa: I love Christopher Hitchens!
Eve: That reminds me. My favorite artistic theme is portrayals of Eve and of the garden of Eden. My favorite so far is this sculpture by Sandra Shaw, although I�m also fond of this painting by Paul Jackson. Do you know of a good artistic portrayal of Eve? If so, please email me and send it along. I would love to offer a collection of them.
Fame: Thanks to Eden�s Apple for the link�and good luck on the novel. As always, I�ve returned the favor of the permalink.
Conservatives: Ah, yes, marijuana bad, tobacco good.
You know, after the Rush Limbaugh thing, you�d think conservatives would hesitate to devise clever philosophical rationalizations for their drug use.
You know, after the Rush Limbaugh thing, you�d think conservatives would hesitate to devise clever philosophical rationalizations for their drug use.
How romantic: Ah, how sweet. You go out at night and there above the flowers is the breadth of the starry sky, and over your head, sparkling as it passes, is a communist spy satellite!
Satan: Wendy McElroy is absolutely right about the devil. I think one of the great disservices that we do is the idea that evil is a thing that can be separated, regarded from a distance, understood in itself, and rejected. In fact, evil creeps up like old age, infinitely subtle, and always easy.
UFCW: The union�s continuing war on Wal-Mart appears to have succeeded in Oakland. You aren�t paying enough for groceries, and the government is going make sure you pay more. Whew! The UFCW knows they can�t compete fairly, you see. So they have to just try to get Wal-Mart outlawed. Cities in Nevada and New Mexico have passed similar ordinances.
Darwin fish: Check out the other fishies available. I�m especially fond of the fish �n� chips.
Tuesday, October 21, 2003
Certain alienable rights: Sasha Volokh writes that �[a]s a moral matter, suicide is one of the most basic rights, because a right is no right at all if it can�t be waived; a non-waivable right to life is a duty or a burden, not a right.� Now, I agree that the right to life can be waived. But I think it�s important to note that not only is that a radical statement, but it�s not even a statement that is necessarily a part of libertarianism.
John Locke, whom I consider the greatest libertarian of all time, did not actually argue that the individual owns himself. More accurately, the individual owns himself in a sort of life estate, granted by God. This, Locke argues, is why the individual has no right to sell himself into slavery�because technically speaking, individuals do not have absolute power over themselves. This is why Locke and his followers classify life as an �inalienable� right. It is a right which you cannot give away. Now, Volokh says that �a non-waivable right to life is a duty or a burden, not a right,� and I think there�s a good argument to be made for that, but note that if that is true�if the individual does own himself entirely, then he has the right to sell himself into slavery, or to join a social compact of absolute monarchy, which was the point that Locke was trying to argue against. Locke writes, �For a man, not having the power of his own life, cannot by compact or his own consent enslave himself to any one, nor put himself under the absolute, arbitrary power of another to take away his life when he pleases.� (emphasis added). America�s founders agreed, writing, for instance, that
Being an atheist libertarian, I have a far more difficult go of it. I believe in inalienable rights, for instance, to liberty, on the grounds that it would be self-contradictory to give sell oneself into slavery. (Who would receive the proceeds? The master, since the slave has no right valid against the master. Thus the contract would be void for no consideration.) But I agree that the individual owns himself outright, and ought to be able to do self-destructive things, including commit suicide. But we no longer have the easy answer for the question �What if the people choose to adopt a totalitarian government?� that the framers themselves had. If the people do own their lives entirely, on what grounds can we say that a Nazi or Bolshevik Constitution is illegitimate?�assuming we don�t just cave in to the positivists and say that all constitutions are equally legitimate, that is. We can say �They aren�t legitimate because the children of the current generation haven�t consented to the violation of liberty that takes place under such constitutions.� But that answer doesn�t satisfy me, because that�s an objection to tacit consent in general, not to the principles being consented to, and I�m not as willing to give up tacit consent as many other libertarians. So what alternative are we left with?
On the other hand, if we follow Locke and say that the individual has no right to consent to self-destructive behaviors, then we are headed toward a far less libertarian world. Many conservatives love making the argument that whatever behaviors they find distasteful (smoking marijuana, private adult consensual homosexual sex, &c.) are self-destructive and thus beyond the reach of consent, while equally self-destructive behaviors they find acceptable (smoking tobacco, private adult consensual adultery, &c.) are within the bounds of consent. Self-destruction must be part of self-ownership. But then what if an entire nation decides to commit suicide by adopting Nazism or fascism?
John Locke, whom I consider the greatest libertarian of all time, did not actually argue that the individual owns himself. More accurately, the individual owns himself in a sort of life estate, granted by God. This, Locke argues, is why the individual has no right to sell himself into slavery�because technically speaking, individuals do not have absolute power over themselves. This is why Locke and his followers classify life as an �inalienable� right. It is a right which you cannot give away. Now, Volokh says that �a non-waivable right to life is a duty or a burden, not a right,� and I think there�s a good argument to be made for that, but note that if that is true�if the individual does own himself entirely, then he has the right to sell himself into slavery, or to join a social compact of absolute monarchy, which was the point that Locke was trying to argue against. Locke writes, �For a man, not having the power of his own life, cannot by compact or his own consent enslave himself to any one, nor put himself under the absolute, arbitrary power of another to take away his life when he pleases.� (emphasis added). America�s founders agreed, writing, for instance, that
�it is the greatest absurdity to suppose it in the power of one or any number of men at the entering into society, to renounce their essential natural rights, or the means of preserving those rights when the great end of civil government from the very nature of its institution is for the support, protection and defence of those very rights: the principal of which as is before observed, are life liberty and property. If men through fear, fraud or mistake, should in [explicit] terms renounce and give up any essential natural right, the eternal law of reason and the great end of society, would absolutely vacate such renunciation; the right to freedom being the gift of God Almighty, it is not in the power of Man to alienate this gift, and voluntarily become a slave��This served as the answer for the tory argument that the English Constitution was a voluntary agreement whereby the people chose to give government absolute power over our lives.
Being an atheist libertarian, I have a far more difficult go of it. I believe in inalienable rights, for instance, to liberty, on the grounds that it would be self-contradictory to give sell oneself into slavery. (Who would receive the proceeds? The master, since the slave has no right valid against the master. Thus the contract would be void for no consideration.) But I agree that the individual owns himself outright, and ought to be able to do self-destructive things, including commit suicide. But we no longer have the easy answer for the question �What if the people choose to adopt a totalitarian government?� that the framers themselves had. If the people do own their lives entirely, on what grounds can we say that a Nazi or Bolshevik Constitution is illegitimate?�assuming we don�t just cave in to the positivists and say that all constitutions are equally legitimate, that is. We can say �They aren�t legitimate because the children of the current generation haven�t consented to the violation of liberty that takes place under such constitutions.� But that answer doesn�t satisfy me, because that�s an objection to tacit consent in general, not to the principles being consented to, and I�m not as willing to give up tacit consent as many other libertarians. So what alternative are we left with?
On the other hand, if we follow Locke and say that the individual has no right to consent to self-destructive behaviors, then we are headed toward a far less libertarian world. Many conservatives love making the argument that whatever behaviors they find distasteful (smoking marijuana, private adult consensual homosexual sex, &c.) are self-destructive and thus beyond the reach of consent, while equally self-destructive behaviors they find acceptable (smoking tobacco, private adult consensual adultery, &c.) are within the bounds of consent. Self-destruction must be part of self-ownership. But then what if an entire nation decides to commit suicide by adopting Nazism or fascism?
Ugh: I tried one of these deep-fried Twinkies at the California State Fair this year. They�re not awful, they�re just so incredibly sweet. They�re a bit like what the Greeks called loukoumades, except without the tang of cinnamon. A little goes a long way.
Eminent domain: My former boss, Dana Berliner, and my current colleague, Jim Burling, are quoted in this excellent article on eminent domain.
New blog: I�m delighted to see that my dear friend Sarah Hempel, the sculptress whose work I have often promoted in the past, has decided to set up her own weblog.
Ha!: You know how delightful it is that, for once, Blogger is working correctly, while the rest of y�all are down?
Can they do that?: Here�s a story that ought to really raise some eyebrows. A judge in a South Carolina town has summoned almost 250 people to court because they signed petitions to pass new city ordinances. �Since the complaint was filed last month, town council members have voted not to charge residents the attorney costs associated with seeking a judge�s ruling. The complaint initially included language seeking �the costs of this action� as a matter of legal routine but the town never really wanted to be repaid�.� Well, isn�t that sweet of them? Eventually they might get around to reading the First Amendment.
Overcriminalization: A few days ago I mentioned Paul Rosenzweig�s overcriminalization project. Tyler Cowen has more on this at the Volokh Conspiracy today.
Monday, October 20, 2003
Those who write on bathroom walls: This reminds me of when I was in D.C. in the summer of 2000. Several of us IJ clerks went out to a bar after work, and when I went into the men�s room, I found myself surrounded by the most bathroom graffiti I have ever seen in any bathroom in my life. And unusual graffiti. One person had written �Reagan was an idiot!� and someone else had scratched it out and written ��defeated communism!� And another person had written out four of the opening lines of The Odyssey in the original Greek! That was a highly educated clientele in that bar!
Marxism and strikes: An excellent post on the grocery strike, from Prof. Wonnell.
Regulatory delays: My specialty in law is entrepreneurialism and the legal barriers that entrepreneurs face. Walter in Denver has a good, brief post on the obstacles that wine export businesses face. (Saw this on the Carnival of the Capitalists). As Walter notes, many states make it illegal to import wine from other states unless you have a special license. These states often claim that these restrictions are to protect children�but how many teenagers, eager to get smashed, are going to order a bottle of merlot from Napa Valley and wait six weeks for delivery? Anyway, direct shippers can check identification upon delivery.
These laws are really just passed to protect native wine-shippers from having to compete fairly, because, as we all know, you can get very rich by making it illegal to shop somewhere else. And these laws are unconstitutional. As the Supreme Court has explained, the Constitution allows states to prevent children from getting alcohol, or to otherwise promote temperance. But it does not allow states to simply protect their favorites from competition. Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 276 (1984). Yet they continue to do it; in fact, in Florida it is a felony to import wine from another state. That meant that, after the last Superbowl, when Gov. Gray Davis and Gov. Jeb Bush made a bet, Davis was unable to pay up on his bet, because he had promise to send Governor Bush a bottle of Napa wine�and it turned out to be illegal.
These laws are really just passed to protect native wine-shippers from having to compete fairly, because, as we all know, you can get very rich by making it illegal to shop somewhere else. And these laws are unconstitutional. As the Supreme Court has explained, the Constitution allows states to prevent children from getting alcohol, or to otherwise promote temperance. But it does not allow states to simply protect their favorites from competition. Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 276 (1984). Yet they continue to do it; in fact, in Florida it is a felony to import wine from another state. That meant that, after the last Superbowl, when Gov. Gray Davis and Gov. Jeb Bush made a bet, Davis was unable to pay up on his bet, because he had promise to send Governor Bush a bottle of Napa wine�and it turned out to be illegal.
Epicurus: This article, which I saw on Political Theory Daily Review, is a brief discussion of Epicurus and his materialism. Unfortunately, Dr. Sellars� portrayal of Epicurus barely resembles the philosopher whom I very much admire.
�[Epicurus�] materialist ethics,� writes Sellars, �is clearly opposed to the selfish and competitive frame of mind that champions personal success over a wider more social outlook.� Understood in the proper context, that is correct, but it would be far more accurate to say that for Epicurus, material success, in the form of aggregating wealth and luxury, tends to degrade one�s happiness, and to lead one into pursuits that detract from true joy. Just yesterday I quoted Thomas Jefferson�s comments on sexual mores in France, when he contrasted �pursuits which nourish and invigorate all our bad passions, and which offer only moments of ecstasy, amidst days and months of restlessness and torment� with �the tranquil, permanent felicity with which domestic society in America blesses most of its inhabitants; leaving them to follow steadily those pursuits which health and reason approve, and rendering truly delicious the intervals of those pursuits.� It is not that Jefferson (who described himself accurately as an Epicurean) was saying that Epicurean ethics was �clearly opposed� to self-gratification�it�s that absorbing oneself in instant gratification of one�s unreasoned desires�what Ayn Rand called �whim-worship��is ultimately self-destructive. Writes Epicurus, �[t]he soul neither rids itself of confusion nor gains a joy worthy of the name through the possession of supreme wealth, nor by the honor and admiration bestowed by crowds, nor through any of the other things sought by unlimited desire.� (Vatican Saying LXXXI.)
Like Aristotle, Epicurus believed that true happiness consisted of the activity of the soul in conformity with reason. This is, accurately speaking, quite selfish�but it requires us to understand ourselves, and the needs of our psychological well-being. The greedy man fails to do this, and thus he is miserable amidst his piles of money.
Sellars continues that �Epicurus� ethics (as concerned with his own well-being and happiness) is also moral, in that it takes into account the well-being of others.� Well, yes, but that is not what makes it moral. Epicurus tells us that it is right to be concerned with the well-being of others insofar as this makes us happy ourselves. It is not an ethic, however, of self-sacrifice. We benefit by alleviating suffering, but the joy of giving to others is the consequence, and not the cause, of a healthy psyche; again, like Aristotle, Epicurus believes that a healthy concern for others is the manifestation of an overfulness of spirit, not a course to pursue in order to justify oneself. Sellars� phrase betrays the fact that he presumes that only �tak[ing] into account the well-being of others� can possibly be �moral.� But Epicurus, like Rand and Aristotle, proceeds from the premise that the proper beneficiary of one�s moral actions is primarily oneself. (See, e.g., Vatican Saying LXXI: �Evaluate each of your desires by this question: �What will happen to me if that which this desire seeks is attained, and what if it is not?��)
�[Epicurean ethics] does not propose a series of objective moral values to which one must submit oneself,� writes Sellars, �but it does propose a personal ethic that has attractive moral consequences.� But it is simply not true that Epicurus proposes no objective moral values. Once again like Aristotle, Epicurus teaches us that there are laws of moral behavior such that abiding by them will make one happy, and breaking them will make one unhappy. �It is impossible to live a pleasant life,� writes Epicurus, �without living wisely and honorably and justly, and it is impossible to live wisely and honorably and justly without living pleasantly. Whenever any one of these is lacking, when, for instance, the man is not able to live wisely, though he lives honorably and justly, it is impossible for him to live a pleasant life.� (Principal Doctrine V.)
For a much better explanation of Epicurean philosophy, consult his brief Letter to Men�ceus.
�[Epicurus�] materialist ethics,� writes Sellars, �is clearly opposed to the selfish and competitive frame of mind that champions personal success over a wider more social outlook.� Understood in the proper context, that is correct, but it would be far more accurate to say that for Epicurus, material success, in the form of aggregating wealth and luxury, tends to degrade one�s happiness, and to lead one into pursuits that detract from true joy. Just yesterday I quoted Thomas Jefferson�s comments on sexual mores in France, when he contrasted �pursuits which nourish and invigorate all our bad passions, and which offer only moments of ecstasy, amidst days and months of restlessness and torment� with �the tranquil, permanent felicity with which domestic society in America blesses most of its inhabitants; leaving them to follow steadily those pursuits which health and reason approve, and rendering truly delicious the intervals of those pursuits.� It is not that Jefferson (who described himself accurately as an Epicurean) was saying that Epicurean ethics was �clearly opposed� to self-gratification�it�s that absorbing oneself in instant gratification of one�s unreasoned desires�what Ayn Rand called �whim-worship��is ultimately self-destructive. Writes Epicurus, �[t]he soul neither rids itself of confusion nor gains a joy worthy of the name through the possession of supreme wealth, nor by the honor and admiration bestowed by crowds, nor through any of the other things sought by unlimited desire.� (Vatican Saying LXXXI.)
Like Aristotle, Epicurus believed that true happiness consisted of the activity of the soul in conformity with reason. This is, accurately speaking, quite selfish�but it requires us to understand ourselves, and the needs of our psychological well-being. The greedy man fails to do this, and thus he is miserable amidst his piles of money.
Sellars continues that �Epicurus� ethics (as concerned with his own well-being and happiness) is also moral, in that it takes into account the well-being of others.� Well, yes, but that is not what makes it moral. Epicurus tells us that it is right to be concerned with the well-being of others insofar as this makes us happy ourselves. It is not an ethic, however, of self-sacrifice. We benefit by alleviating suffering, but the joy of giving to others is the consequence, and not the cause, of a healthy psyche; again, like Aristotle, Epicurus believes that a healthy concern for others is the manifestation of an overfulness of spirit, not a course to pursue in order to justify oneself. Sellars� phrase betrays the fact that he presumes that only �tak[ing] into account the well-being of others� can possibly be �moral.� But Epicurus, like Rand and Aristotle, proceeds from the premise that the proper beneficiary of one�s moral actions is primarily oneself. (See, e.g., Vatican Saying LXXI: �Evaluate each of your desires by this question: �What will happen to me if that which this desire seeks is attained, and what if it is not?��)
�[Epicurean ethics] does not propose a series of objective moral values to which one must submit oneself,� writes Sellars, �but it does propose a personal ethic that has attractive moral consequences.� But it is simply not true that Epicurus proposes no objective moral values. Once again like Aristotle, Epicurus teaches us that there are laws of moral behavior such that abiding by them will make one happy, and breaking them will make one unhappy. �It is impossible to live a pleasant life,� writes Epicurus, �without living wisely and honorably and justly, and it is impossible to live wisely and honorably and justly without living pleasantly. Whenever any one of these is lacking, when, for instance, the man is not able to live wisely, though he lives honorably and justly, it is impossible for him to live a pleasant life.� (Principal Doctrine V.)
For a much better explanation of Epicurean philosophy, consult his brief Letter to Men�ceus.
Sunday, October 19, 2003
Well, annika: Don�t feel too bad. I once just�well, didn�t get my mother a Mother�s Day present. Why? No reason. Just didn�t.
She has never really mentioned it. But I have come to feel so bad about it�well, let�s put it this way. Those Simon & Garfunkel tickets are not cheap.
She has never really mentioned it. But I have come to feel so bad about it�well, let�s put it this way. Those Simon & Garfunkel tickets are not cheap.
Oh, and�: Don�t forget to check out my article on the constitutionality of plea bargaining in the current Regulation magazine.
Small-town fame!: A few weeks ago, the El Dorado County Times And Review caught my eye at a coffee shop here in Placerville. It�s one of those free handout papers that carries local stories plus a few ads for antique stores. The stories are often about Gold Rush history, so I thought it might be fun to write up a quick biographical article about my hero Supreme Court Justice Stephen J. Field, and send it to them. Sure enough, part one of the article appears in the current issue, and part two will appear in November. If you�re in the Sacramento area, pick up a copy.
Fame!: Wow, my sincere thanks to my favorite blog, the Volokh Conspiracy, which has added Freespace to its blogroll! And don�t forget Prof. Bernstein�s upcoming talk at my alma mater, Chapman University Law School.
�They make a desolation and call it peace�: Here�s a little clip from Bruce Herschensohn�s excellent novel, Passport. Pick up a copy now!
��Peace is not surrender.� The senator was shaking his head with a smile.
��That depends on whether you hold peace higher than liberty or liberty higher than peace.� Anne was passionate. She was prepared to take him on. �President Lincoln could have had peace and spared the states the agony of war and the death of over one half million Americans on the battlefield. He could have done that by removing the Union�s troops from Fort Sumter and allowing the secession of South Carolina and allowing the other states that sought confederation to become independent of the Union. There would be two nations. One free, one slave. And there would have been peace.
��In the second decade of this century, France and Great Britain and the United States could have avoided World War I by refusing to pick up arms. Andt here would have been peace.
��President Roosevelt could have brought about peace for the United States by standing before that joint session of Congress on Monday, December the 8th of 1941 to request of the Congress, not a declaration of war to return fire for fire, but, instead, a declaration of accommodation. And there would have been peace.
��Surrender, senator, brings about peace, and neutrality brings about peace�the peace of the palace for those in authority, the peace of subjugation for the many who are timid, and the peace of the prison cell for the rest. But there is peace.
��Peace without liberty is surrender.��
��Peace is not surrender.� The senator was shaking his head with a smile.
��That depends on whether you hold peace higher than liberty or liberty higher than peace.� Anne was passionate. She was prepared to take him on. �President Lincoln could have had peace and spared the states the agony of war and the death of over one half million Americans on the battlefield. He could have done that by removing the Union�s troops from Fort Sumter and allowing the secession of South Carolina and allowing the other states that sought confederation to become independent of the Union. There would be two nations. One free, one slave. And there would have been peace.
��In the second decade of this century, France and Great Britain and the United States could have avoided World War I by refusing to pick up arms. Andt here would have been peace.
��President Roosevelt could have brought about peace for the United States by standing before that joint session of Congress on Monday, December the 8th of 1941 to request of the Congress, not a declaration of war to return fire for fire, but, instead, a declaration of accommodation. And there would have been peace.
��Surrender, senator, brings about peace, and neutrality brings about peace�the peace of the palace for those in authority, the peace of subjugation for the many who are timid, and the peace of the prison cell for the rest. But there is peace.
��Peace without liberty is surrender.��
Veils of Willful Ignorance: Prof. Solum�s Legal Theory Lexicon contains an introduction to the Rawlsian concept of the �Veil of ignorance.� Prof. Solum hits on my primary objection to the �veil�: it is another example of how �asking the question in this way is designed to elicit a certain outcome.� As Anthony de Jasay points out, the veil is just a device to disguise from us the fact that Rawls is seeking a way to slice �the cake that nobody baked��a way to justify redistribution, by pretending that nobody created the items that are being redistributed, and therefore, that nobody has any prior just claim to those things. Rawls is at least consistent enough to go all the way and say that you don�t even have a just claim to your own skills and talents.
In Justice And Its Surroundings, Jasay explains that there are essentially two concepts of justice: �to each his own� and �to each according to [some criterion of desert].� The latter concept has a variety of insoluble shortcomings, as Jasay demonstrates. The �veil of ignorance� is an attempt to hide those shortcomings�indeed, it is a veil designed to keep us ignorant of the claims of prior desert. One might as well imagine a robber, hiding in his den with his stolen goods, when suddenly the police break in with a warrant. �No, no,� says the robber. �Let us put up a veil of ignorance. Suppose you didn�t know whether you�d end up being a cop, or a robber like me. Let us put aside such irrelevant factors and imagine we just suddenly arrived in this cave together and found these things just lying here. What would be the just distribution under my Robber Veil of Ignorance?�
As Solum notes, �Rawls�s basic intuition was that the state of nature allowed morally irrelevant factors�e.g. the strategic advantages of the strong and cunning�to determine the content of the social contract.� But note what Rawls considers irrelevant�your talents, your ambition, your skills, your beauty�and, most of all, the fact that these things are yours.
The assumption that these things are irrelevant is itself an assumption about justice: it is the assumption that what you have attained is not really yours because you didn�t work for it. (It�s important to keep in mind that Rawls does not limit his veil solely to traits with which one is born, but includes traits like �wealth and income,� which are directly related to one�s morally relevant actions. But the Veil would be just as reprehensible a theory if only limited to inborn traits).
In my recent eminent domain article, I quoted a passage from the California Constitutional Convention of 1878, in which a delegate parodied the doctrine that Rawls, a century later, takes seriously:
Isn�t that really what Rawls is asking for? Let us ignore the fact that these people own themselves and thus own their talents and their skill. Let us ignore the question of whether they deserve to benefit from the talents and hard work that are there own. Let us blind ourselves to these things on purpose and then distribute the wealth we see around us as though it were manna from heaven. And then let us assume that people will go on producing this wealth and go on living as they did before knowing that at any time another Rawlsian political prophet might come along and decide it�s time for another redistribution.
It�s all the same old serpent.
Update: More on the Veil here.
In Justice And Its Surroundings, Jasay explains that there are essentially two concepts of justice: �to each his own� and �to each according to [some criterion of desert].� The latter concept has a variety of insoluble shortcomings, as Jasay demonstrates. The �veil of ignorance� is an attempt to hide those shortcomings�indeed, it is a veil designed to keep us ignorant of the claims of prior desert. One might as well imagine a robber, hiding in his den with his stolen goods, when suddenly the police break in with a warrant. �No, no,� says the robber. �Let us put up a veil of ignorance. Suppose you didn�t know whether you�d end up being a cop, or a robber like me. Let us put aside such irrelevant factors and imagine we just suddenly arrived in this cave together and found these things just lying here. What would be the just distribution under my Robber Veil of Ignorance?�
As Solum notes, �Rawls�s basic intuition was that the state of nature allowed morally irrelevant factors�e.g. the strategic advantages of the strong and cunning�to determine the content of the social contract.� But note what Rawls considers irrelevant�your talents, your ambition, your skills, your beauty�and, most of all, the fact that these things are yours.
The assumption that these things are irrelevant is itself an assumption about justice: it is the assumption that what you have attained is not really yours because you didn�t work for it. (It�s important to keep in mind that Rawls does not limit his veil solely to traits with which one is born, but includes traits like �wealth and income,� which are directly related to one�s morally relevant actions. But the Veil would be just as reprehensible a theory if only limited to inborn traits).
In my recent eminent domain article, I quoted a passage from the California Constitutional Convention of 1878, in which a delegate parodied the doctrine that Rawls, a century later, takes seriously:
[T]he theory of this Convention is this: that nothing shall be counted to the credit of pioneer enterprise; that if I happen to come here, leaving the comforts of an Eastern home, and making up my mind to go into the business of mining, and find a mine before you come, which pays me well, when you come you say, give me a portion of your mine; or you will say, let us confiscate a portion of the proceeds to the public, so that we will be getting a portion of it. If a man puts his energy and money into building gas works and lighting a city, with the consent of everybody and it turns out that these gas works are paying pretty well, this Convention says take away the profits, or confiscate them. The same way with a railroad. Now, when we come to land�they say this is outrageous confiscation�. What right have they to so much land? The gentleman from Tehama says he bought it. What difference does that make? What business has he to get that many acres of land? What does it matter how a man got it? I would like to have some of this land myself. [Laughter.] I see that other men have been smarter than I have, and they have got more than I have; there are lots of men worse off than I am. I would like to know what business a man has to have more than six hundred and forty acres of land? If a man cannot live on that, he ought to die. [Laughter.] We don�t want a man to have a right to buy this land. It don�t matter about buying it. That don�t make any difference. If they had a legal right, what difference does that make? We are strong, and we have a right to say what they shall do with it. We want to say that we have a right to go and take it�.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, 638 (2003) (quoting E.B. Willis & P.K. Stockton, Debates And Proceedings at The Constitutional Convention of California 1878-1879 at 1145 (1880)).
Isn�t that really what Rawls is asking for? Let us ignore the fact that these people own themselves and thus own their talents and their skill. Let us ignore the question of whether they deserve to benefit from the talents and hard work that are there own. Let us blind ourselves to these things on purpose and then distribute the wealth we see around us as though it were manna from heaven. And then let us assume that people will go on producing this wealth and go on living as they did before knowing that at any time another Rawlsian political prophet might come along and decide it�s time for another redistribution.
It�s all the same old serpent.
Update: More on the Veil here.
