::Freespace::

One last thing: Go to Yahoo! and type in �Mars,� and you get a �sponsor result� that says

Mars Travel Deals - TripAdvisor Read reviews, articles and recommendations of Mars hotels, resorts and vacation packages. Links to great deals on hotels, vacation packages and flights.
www.tripadvisor.com

Unfortunately, they mean Mars, Pennsylvania.

Bye for now: I�m heading south for Thanksgiving. Got a nine hour drive ahead of me. Whoopee.

What am I thankful for this year? Much. I�ve had an awfully good year. I�m grateful for the lovely Erin, an amazing woman who makes me look forward to every day. I�m grateful for the people of little Placerville, California, who make it such a wonderful place to live. I�m thankful for the men and women who are willing and able to take up arms and defend this nation, in places I would never even want to go on vacation. I�m thankful for great thinkers, like Daniel Dennett or John Locke or James Madison or Friedrich Nietzsche, who have given the world the most precious of all things�new ideas. I�m thankful for groups like the Pacific Legal Foundation and the Institute for Justice, for defending the rights of regular Americans against a government which long ago outgrew its Constitution. I�m grateful for great writers like Mark Twain and John Varley and Joseph Conrad, who have given me so many hours of pleasure and insight. I�m thankful for great bloggers. I�m grateful for my fascinating and helpful friends, and for cats, and for great teachers like Prof. Eastman and Dr. David Whalen and Dr. Ken Calvert (who came as near as anyone to saving my life) and for the great education they gave me. I�m grateful for Christmas lights�objects which have absolutely no use other than to make people happy!�and for the deer that walk shyly through my yard late at night. I�m grateful for Victoria�s Secret and Charlize Theron. I�m grateful for technology like the Internet which allow me to communicate with great minds on an instantaneous basis. I�m grateful for my personal heroes, like Thomas Jefferson, Clint Bolick, Francis Crick, J. Craig Venter, Stephen J. Field, John Milton, Roger Pilon, Frederick Douglass, Virginia Postrel, H.L. Mencken, Janice Brown and Bruce Herschensohn. I�m thankful for Sunday afternoons at the Hangtown Grill, and views of Mars late at night, and The Green Bag, and for the poetry of Theodore Roethke. I�m grateful for the Lochnermobile and the Unabomber Shack and the cute girl who works at the bookstore on Sundays. I�m grateful for capitalism, which makes so much innovation possible, and which provides us with things like Christmas lights�and MRI machines. I�m grateful for atomistic individualism and for personal-autonomy liberalism. I�m especially grateful for my freedom (such as it is)�freedom to speak my mind, and freedom to disbelieve, and freedom to buy and sell what I want, when I want. I�m grateful for Lawrence v. Texas and Zelman v. Simmons-Harris and Craigmiles v. Giles.

There is much more. I�ll try to think of them all this weekend.

See you Sunday.

Good vs. Well: Sarah Hempel has done some research on whether you can �do good.� It�s all about evolution, man.

Fame!: Thanks to Pathetic Earthlings, Greedy Capitalist, Curmudgeonly Clerk, and Vast Right Wing Conspiracy for the links, and to Greg Goelzhauser for the mention.

Is Allah the same God as the Christian God? Strictly speaking, the question is meaningless. They are no more and no less identical than one man�s God is identical to another man�s God. When two people make statements about an object or entity, the way to assess whether what they say is true or not is through experimentation and comparison of results. These things allow us to compare our hypotheses within a common frame of reference�that frame being reason and evidence. But that frame is not useable by those who appeal to faith instead. God is alleged to be immeasurable and beyond our understanding. It is therefore impossible to say whether He is the same from one person to another. As Ayn Rand said,

faith and force are corollaries, and...mysticism will always lead to the rule of brutality. The cause of it is contained in the very nature of mysticism. Reason is the only objective means of communication and of understanding among men; when men deal with one another by means of reason, reality is their objective standard and frame of reference. But when men claim to possess supernatural means of knowledge, no persuasion, communications or understanding are [possible].... Anyone who resorts to the formula: �It�s true because I say so,� will have to reach for a gun, sooner or later.

Ayn Rand, Faith And Force: Destroyers of the Modern World, reprinted in Philosophy: Who Needs It 58, 70 (1982).

Now, being a fictitious entity, one could, I suppose, ask whether one man�s God is the same as another�s in the same way that one could ask whether one man�s Obi Wan Kenobi is the same as another�s. That, however, requires a close attention to the texts and a strict observance of the details�precisely what ecumenicalism refuses to do.

Communism Law School: This is hilarious. (Thanks to Paul for the pointer). I love the part about �if you want to be a prosecutor or a corporate attorney, don�t waste our time applying.� Yeah, cause the prosecutors don�t protect The People, just Da Man. And corporations, they�re not owned by people; they�re owned by�um�positronic robots from beyond the moon?

Semantics: This post at Hit & Run reminds me of a long, long conversation I had with a Catholic friend over gay marriage. I finally got him to say that he thought it would be okay if gay people had contractual, monogamous relationships with each other that set out issues of inheritance and health-care, and that were recognized by the state�.but just don�t call it marriage! Afterward, I mentioned it to another Catholic friend. �Tim,� he said, �this is religion. It�s all about semantics!�

Freud: The human being is a strange kind of scorpion that stings with its mind. It goes through three stages of development, frequently, though not always, corresponding with its chronological age. During the first, or �id� stage, the human being stings in every direction, not realizing that it is stinging; indeed, the human being finds such a thing inconceivable. But as it progresses toward the second, or �ego� stage, it realizes that these stings hurt others. It therefore begins to use its stinging skill for various reasons; it is wholly appetitive at first, but learns increasingly sophisticated ways of using its stinging ability to acquire what it wants. Soon it is able to manipulate others in extremely clever ways which sometimes it refuses to admit even to itself. The final stage, which some human beings never reach, is the �superego� stage, during which the human gains control over its �ego�-era appetites. At this point the human is strong, but self-disciplined. It can use its powers, but does not have to. It is self-assured, speaks softly and carries a big stick. This process of growth is what Nietzsche calls �overcoming.� By �stinging,� I mean any number of acts, from crying in the crib to invoking the rank of one�s education over that of another, to a man�s skill in seduction. In any of these cases and more, the �superego� stage is the stage at which we call a man a �gentleman.�

More on takings with Marston: Prof. Marston has a brief reply to my thoughts on takings. He�s right that I could point to a lot of quotes from cases before Wynehamer which demonstrate that Prof. Marston is incorrect in thinking that Wynehamer departed from �previous understandings of the social context of property rights.� (See, e.g., Van Horne�s Lessee v. Dorrance.) In fact, my recent article, A Natural Rights Perspective on Eminent Domain in California was mostly a collection of such quotes. (Wynehamer was unusual in that the sale of liquor was often considered an exeption to the general rule of economic freedom.)

Prof. Marston is heading home for Thanksgiving, as am I. I�ll be leaving tomorrow immediately after work, and plan to be back by Sunday, so I�ll save a more detailed response till after.

Ecumenicalism: I like this post by Stuart Buck. It makes lots of people feel real good to say that we all worship the same God. But that notion requires us to jettison a great deal of what makes one religion different from another. Some folks are satisfied with that sort of theology. Christ would not have been.

Dismalization: Greg Goelzhauser refers to the Abner Mikva forword on public choice theory. He�s right�it�s a hoot�if you find it amusing to see people who have no idea what they�re talking about flailing away irrationally at an idea simply because they find it unpalatable. Mikva�s argument consists of this: why�that�s just so cynical! As I wrote in Liberty in May, �Put aside the suggestion that perhaps what�s wrong with our country is precisely that our politicians make their decisions on the basis of emotional stimuli, instead of logic, reason, or science. What�s more interesting is that Mikva does not directly attack the economic methodology or the validity of the conclusions. His point is that the very idea of describing legislative behavior from the perspective of public choice theory is itself invalid, because it overlooks some human essence. It�s wrong because it�s demeaning.�

Subsidize it and you get more: Alaska is paying kids to show up for school.

Thanksgiving stuff: Check this out�this is a political cartoon by the great Thomas Nast, originally published in 1869, in which Nast imaginines what Thanksgiving Dinner might look like someday. Notice the reference to the 15th Amendment just above Pres. Grant�s portrait. I think it�s very cool that many people�s Thanksgiving Dinners do look like this nowadays. The nation obviously has a long way to go, still, but it�s pleasant to note the progress we�ve made since the day when a picture like this was considered shocking and radical.

What you missed over the weekend: The Libertarian Bookworm; is marriage a �mere� contract? And some tentative thoughts on Iraq.

War of 1812: This looks like a cool article. I love War of 1812 stuff. Check out the great book Dawn�s Early Light by Walter Lord for an informative and thrilling history of the climactic years of the war. And then answer the question for yourself: was Independence Day just a retelling of the War of 1812?

Guns: They say that if liberals read the Second Amendment the way they read the other Amendments, we�d all be forced to own guns. Well, Gueda Springs, Kansas has made gun ownership legally mandatory. I think that�s as indefensible as banning gun ownership.

What�s in a name?: Did you know the word �Realtor� is trademarked? The National Association of Realtors won�t let you call yourself a Realtor if you aren�t a member�. At least, for now.

Marriage as contract: Dr. Masugi writes that we must �reject[ ] the liberals� notion that marriage is a contract.� Since when is that a liberal notion? William Blackstone wrote in the 1760s that

[o]ur law considers marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to the matrimonial law: the temporal courts not having jurisdiction to consider unlawful marriage as a sin, but merely as a civil inconvenience. The punishment therefore, on annulling, of incestuous or other unscriptural marriages, is the province of the spiritual courts... [T]he law treats it as it does all other contracts: allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract, in the proper forms and solemnities required by law.

(Vol. II ch. 15)

The United States Supreme Court referred to marriage as a contract as early as Emory v. Grenough, 3 U.S. (3 Dall.) 369, 373 (1797). And check out Frank v. Denham�s Adm�r, 1824 WL 1445, *1 (Ky.App. 1824) or Emery v. Neighbour, 1824 WL 1568, *7 (N.J. 1824) or Elizabeth Burtis v. John Burtis, Hopk. Ch. 557, 2 N.Y. Ch. Ann. 522 (N.Y.Ch. 1825).

I wrote about this nonsensical assumption that marriage-as-contract somehow denigrates from the importance of marriage in Liberty a few months ago. It does not cheapen marriage in the slightest�or elevate it�to regard it as a contract. Contracts for all sorts of things can be extremely important and have important social consequences and have moral effects: contracts for doctor�s services, for instance, or contracts by which you pay the parson to preside over your wedding, or contracts by which you pay a soldier to fight for your freedom.

What Dr. Masugi and others are really after is not so much a repudiation of marriage-as-contract; they want us to adopt toward it the same attitude that the Munn v. Illinois Court adopted toward private economic contracts: that is, whenever a contract is �affected with a public interest,� it ought to be subject to state regulation.

As one court put it recently, �That the contracts affected the public interest was, of course, the talisman that enabled the State to exercise its police power to regulate a privately owned business, including its prices, without violating the due-process clause of the Fourteenth Amendment�. The talisman was exchanged for another in 1934�whether the regulation was found to be arbitrary, discriminatory, or demonstrably irrelevant to a public policy the legislature was free to adopt.� Brushy Creek Mun. Utility Dist. v. Texas Water Com�n, 887 S.W.2d 68, 74 and id. n. 5 (Tex.App.-Austin 1994). This is why Dr. Masugi�s view should be regarded with alarm: it has the potential to lead to a future in which the marriage contract is as heavily regulated as economic contracts are today.

Update: Chris Geidner puts it well: �Marriage is not innately sacred and certainly not so because the state says so, it is because individually we make it so....�

More on Hart and Islam: At Curmudgeonly Clerk. Best line: �it is difficult to believe this denial, particularly given that the strip is otherwise senseless and unfunny. But, as I said, B.C. generally is senseless and unfunny, so there is some ambiguity on this point.� Good point!

Fall: It�s 37° outside at 10am. And it�s about 10° in my bathroom. I love this town!

Libertarian Bookworm: This week, check out The Constitution of Liberty by Friedrich Hayek. This is one of the real classics of libertarian thought, and it is almost encyclopedic in its analysis. So I can only comment on a handful of the subjects Hayek addresses.

Hayek was a student of the great libertarian economist Ludwig von Mises, and Hayek won the Nobel Prize for economics in 1974. Constitution of Liberty, however, is not about economics�it�s about the importance of freedom, and its ramifications. Picking up on the arguments of John Stuart Mill, Hayek argues that freedom is vital to creativity, which itself is vital to the survival and success of society. �The benefits I derive from freedom,� writes Hayek, �are thus largely the result of the uses of freedom by others, and mostly of those uses of freedom that I could never avail myself of.� Moreover, those benefits are impossible to assess in advance. On a theme that Karl Popper and later Virginia Postrel would pick up, Hayek describes the free society as an open-ended, unpredictable process: �[O]nly the totalitarians appear clearly to know how they want to achieve [their] result[s], while the free world ahs only its past achievements to show, being by its very nature unable to offer a detailed �plan� for further growth.�

Hayek therefore writes that a free society �allow[s] for gradual and experimental change� in society. �The existence of individuals and groups simultaneously observing partially different rules provides the opportunity for the selection of the more effective ones.� Social order will arise from this experimentation. This is the �spontaneous order� for which Hayek is famous.

I have some problems with this, myself. First, spontaneous order will always arise as Hayek describes, but we can�t adopt as a principle that we should avoid action so long as the spontaneous order is still developing. Sooner or later, we have to act, and that action requires that we accept the status quo as the order. At any point in history, you can say �Well, we should not write thus-and-such into law, because that would stifle creativity and experimental change!�

Second, while it�s true that groups of people should be free to devise their own rules and live according to them, it�s also important that these groups accept this metaprinciple. You can�t have a group that says �Our distinguishing idea is that people should all abide by our rules!��that�s the �paradox of toleration� that Popper writes about. From this I derive the view that the open society must consist of open sub-societies, all the way down to the individual, who does not accept traditions simply because they are traditions, but demands reasons. Indeed, Will Durant defined a barbarian as a man who is content to live without freedom and believe without reasons. Similarly, you cannot make a free society on Hayek�s basis of cultural experimentation unless the people in that society believe in the metaprinciple of cultural experimentation�that is, unless they believe that people have the right to run such experiments. Yet on the same page as the above-quoted view, Hayek writes that people must �submi[t] to undesigned rules and conventions whose significance we largely do not understand,� and �rever[e] the traditional�.� That strikes me as a contradiction. You cannot have a free society made up of Puritans.

Hayek says several other things that are contradictions. In his chapter on social security, for instance, he argues that the Welfare State is entirely justified. (Anthony de Jasay attacks him for this so thoroughly in Justice And Its Surroundings that I�ll just refer the curious there.) And when it comes to describing the indispensable foundations of a free society, Hayek seems to trip on the same issue of �revering the traditional.� A free society, he says, is based on 1) predictability of the law; 2) equality before the law; and 3) the generality of all laws (so that there are no �special laws�). But Hayek seems to recognize that even these are not quite enough, and he hints at (but never explores fully) the need for �a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal�. In a democracy this means that [the rule of law] will not prevail unless it forms part of a moral tradition of the community, a common ideal shared and unquestioningly accepted by the majority.�

The principle for which Hayek seeks is, of course, the moral principle enunciated in the Declaration of Independence. Nor need it be accepted unquestioningly; the framers themselves wrote that a free society actually required a frequent recurrence to fundamental principles. But it is true that even the three (admittedly vital) principles Hayek describes aren�t enough�you need a society which reveres freedom as a metaprinciple, so that the society will not turn into a bunch of walled communities each practicing opposing principles, and losing any respect for each other. And Hayek recognizes this, because later in the book he writes that �[t]o live and work successfully with others requires�an intellectual commitment to a type of order in which, even on issues which to one are fundamental, others are allowed to pursue different ends.�

I think the contradictions in The Constitution of Liberty seriously weaken Hayek�s argument. In fact, they led Ayn Rand to call Hayek �our most pernicious enemy�! Nevertheless, his perspective on everything from the abuse of eminent domain to the provision of public education are indispensable, and sometimes eloquent. One point on which Hayek is particularly good is his criticism of what he calls �rationalism�: namely, the desire on the part of some to eradicate any rule for which a good reason cannot be given. This is something libertarians are especially prone to. (We get it, in part, from our French Revolutionary ancestors!) But as Hayek, who was a lawyer, explains, rules are often created for a particular reason, which then goes away�but it is not necessarily worth it to eliminate the rule. The question shouldn�t be whether the rule is worth it, but whether it is worth our time to erase that rule. Social conventions like, say, opening doors for ladies, have outlived their original reasons. But there�s no reason to stop doing it. Redesigning society from the ground up on the basis of today�s reasons would be an impossible job with all sorts of unforeseen consequences, as Hayek explains.

This might seem like giving aid and comfort to conservatives, but Hayek follows it up with an outstanding criticism of conservatism, in an afterword entitled �Why I Am Not A Conservative. Those who (much to my frustration) continue to think that libertarians are a variety of conservative very much need to read that essay. In particular, I recommend reading Hayek in conjunction with Popper and Postrel. Their writings on what Postrel calls �dynamism� are really essential to understanding libertarian society�a society which admits that it does not know exactly where it is going, which acknowledges that its strongest resource is the creativity of its people, and which takes every pain to ensure that people are able to muster that creativity and turn it toward improving their lives and pursuing happiness.

Get The Constitution of Liberty at Laissez-Faire Books.

Iraq: Light of Reason has a pretty thoughtful, though long and impassioned, post about the Iraq war. I�ve avoided taking a position on that issue on this blog because I think there are thoughtful and reasonable arguments on both sides�and therefore I can only go with presumptions. I presume in favor of deposing dictators, and I presume in favor of deferring to those who work in the military and intelligence communities surrounding the President, so all I can go on is trust that the President knows what he�s doing. I can�t tell you how frightening it is for a libertarian to trust a President. But I can�t think that I know better than he how to fight this or any war.

Anyway, Mr. Silber writes

I revere and deeply love the United States in terms of its original founding principles. But if the United States is becoming a country dominated by those who�believe we have the right to impose our values by military force on any other country of our choosing, even when that country does not represent any kind of serious threat to us, that we may freely disregard the lessons and importance of history and culture, and that we may do all this utterly unmindful of the dreadful costs imposed on those other countries and on ourselves, and that, after we have done all this, we may then lecture the people who live in those countries as to the proper attitude and deference they ought to show us�if that is truly the kind of country we are becoming�which would represent a profound tragedy of genuinely historic proportions, and a complete abandonment of every important principle on which this country was founded�then I would hate America, too.

Fair enough, but two things: First, it doesn�t seem like that is what�s really going on. I can�t recall the President or any of his supporters �disregarding� either the lessons of history or the �dreadful costs� of this war. Indeed, to disregard the dreadful costs�the dead soldiers, primarily�is so inhuman, I cannot think that either side in the debate over the war really �disregards� it. To imagine that President Bush or his supporters �disregard� the deaths of these soldiers is like when people tell me that, if I oppose the Regulatory Welfare State, I obviously don�t care about poor people. Nonsense! I think we are all equally pained by the deaths of these soldiers, and it�s very arrogant to assume otherwise. It�s just that some people believe that this is worth such horrible costs, and some people don�t.

Secondly, let us keep this absolutely clear: freedom is not imposed. Tyranny is imposed. Slavery is imposed. Dictatorship is imposed. Freeing a nation from such things is not an imposition. If pirates are looting a ship, it is not an imposition to the passengers to chase the pirates away. It would not be an imposition on Cuba to depose Castro. It was not an imposition to overthrow royal rule in America in the 18th century. To chase off a murdering dictator like Saddam Hussein is not �imposing our values by military force.� Nor would it be �imposing our values� if we tell the Iraqis that they must not commit �honor killings,� and must not stone women to death for looking you in the eye. Now, if we go in and tell people that they have to set their tax rates and thus-and-such, and that they must adopt this-and-that as their national flag, or that they must all convert to Christianity�that would certainly be imposing our values by military force. But freedom and slavery are not matters of taste or whim. And the superiority of freedom over slavery is not subjective. That�s why the aforementioned �self-evident truths� are, indeed, truths.

I should add that I don�t understand Mr. Silber to be saying the opposite�I think he�s just not being very clear in his writing. But there are those who think that freedom is, indeed, nothing but a �western value� that we ought not to �force� on other people. I think that�s very dangerous�indeed, it is a subjectivism that is fundamentally opposed to �every important principle on which this country was founded.� As George Anastaplo once said, the Constitution is unambiguous on the matter of whether liberty is a blessing!