::Freespace::

Gamaliel: An amusing review of a new biography of Warren G. Harding. Intriguing, to say the least! And I enjoyed the line “Truth be told, though, it may be that one of Harding’s most lasting contributions to American political culture is the (deservedly) oft-repeated verdict of William McAdoo on Harding’s stump speeches: ‘an army of pompous phrases moving over the landscape in search of an idea. Sometimes these meandering words actually capture a thought and bear it triumphantly, a prisoner in their midst, until it died of servitude and over work.’” Nothing, though, beats H.L. Mencken’s characterization of “Gamalielese,” reprinted in Marion Elizabeth Rogers, ed., The Impossible H.L. Mencken 407 (1991):

[H]e writes the worst English that I have ever encountered. It reminds me of a string of wet sponges; it reminds me of tattered washing on the line; it reminds me of pale bean soup, of college yells, of dogs barking idiotically through endless nights. It is so bad that a sort of grandeur creeps into it. It drags itself out of the dark abysm (I was about to write abscess!) of pish, and crawls insanely up to the topmost pinnacle of posh. It is rumble and bumble. It is flap and doodle. It is balder and dash.

But I grow lyrical….

Id. at 407-08.

Here is Harding’s inaugural address. As Mencken wrote, “The thing started off with an error in English in its very first sentence—the confusion of pronouns in the one-he combination, so beloved of bad newspaper reporters. It bristled with words misused: Civic for civil, luring for alluring, womanhood for women, referendum for reference, even task for problem. ‘The task to be solved’—what could be worse?” Id. at 410.

Harding’s worst sin, though, remains with us: the word “normalcy.” Mencken later explained:

As a rule, a new word comes in by a process that is mainly accidental. Someone devises it to meet a sudden and maybe transient need—and is amazed a week later to hear other people using it. It was thus, for example, with the late Mr. Harding’s normalcy. The truth is that he did not invent it at all, but simply used it ignorantly, or perhaps I should say inadvertently. The word he was fishing for was normality, but somehow he got hold of the rare mathematical term, normalcy, and so stuck it into his inaugural address. The next day all the intellectual snobs of the country were cackling over it—but by the end of the week it was in common use, and it retains a certain vogue to this day.

Making New Words, reprinted in id.at 482.

Sounds familiar? I swear, by January of 2014, people will be using the term “strategery” with a straight face.

Restaurant recommendations: SW Virginia Law Blog has some D.C. area restaurant recommendations. I still think the best place to eat in D.C. is the USDA Employee Cafeteria. Well, despite some recent unpleasantness. Second is The Oval Room, Clint Bolick’s favorite restaurant. In 2001 I actually flew to Washington, D.C. just to have their chocolate bread pudding. Well, there were some other things I had to do, but that was the most pleasant thing.

Also, in Alexandria, you must not miss Gadsby’s Tavern, the best colonial-theme restaurant ever, thanks to the great food and the breathtaking talent of John Douglas Hall. Like the Oval Room, it’s expensive but worth every dime.

Pathetic, but true: It’s true, it’s true, all of it!

Aww de widdle kitties: Atrios’ cats are cute, but Sarah Hempel’s are cuter.

Criminal defense: Mr. Lammers has, as is common for him, a great post on a week in the life of a criminal defense attorney. My favorite line: “I stand up in rebuttal and point out that ‘maybe’ isn’t the constitutional standard....” (Plus, a little Net Nostalgia.)

Gotta be some changes made: Beginning tomorrow, Freespace will be starting some guest bloggers. Not famous folks—just friends of mine—but I hope you’ll be as hospitable to them as you’ve been to me. No—much more so!

Libertarian Bookworm: This week check out Science And Human Values by J. Bronowski. This is not a very famous book, but it’s a favorite of mine, and I think it has a lot to say about political philosophy.

Bronowski is a hero of mine, about whom I wrote at length in “Rediscovering Jacob Bronowski,” in Liberty, Dec. 2002. His writing is clever, eloquent, insightful, and always thought provoking. Science And Human Values was published first in 1956, and then reissued in 1965 to include a radio script he wrote for a dialogue called “The Abacus And The Rose,” consisting of a conversation between a politician, a scientist, and a professor of literature. Years before C.P. Snow published The Two Cultures, Bronowski was discussing the seeming rift between the literary culture and the scientific culture. But that was not the only point of Science And Human Values. The book was inspired by his visit to Hiroshima and Nagasaki as the head of the British team assessing the impact of the atomic bomb. As he explains,

I had blundered into this desolate landscape as instantly as one might wake among the craters of the moon. The moment of recognition when I realized that I was already in Nagasaki is present to me as I write, as vividly as when I lived it. I see the warm night and the meaningless shapes; I can even remember the tune that was coming from the ship. It was a dance tune which had been popular in 1945, and it was called “Is You Is Or Is You Ain’t Ma Baby…?” The power of science for good and for evil has troubled other minds than ours…. Nothing happened in 1945 except that we changed the scale of our indifference to man; and conscience, in revenge, for an instant became immediate to us…civilization face to face with its own implications. The implications are both the industrial slum which Nagasaki was before it was bombed, and the ashy desolation which the bomb made of the slum. And civilization asks of both ruins, “Is You Is Or Is You Ain’t Ma Baby?”

The book consists of three essays. The first, “The Creative Mind,” asks what science does. It is not a collection of facts, but “a re-creation” of nature; we conquer nature by obeying her, as they say. In “The Habit of Truth,” Bronowski gets deeper into what sort of truth science seeks, and, more interestingly to libertarians, what “influence…this search for truth has had on conduct.” He wraps this up in “The Sense of Human Dignity,” in which he concludes that the habits of science—inquiry, skepticism, dissent, free speech—are the habits necessary to the free society. Here he addresses an ethical view he later called “structuralism,” which holds that “ought” can be derived from “is”:

The positivist holds that only those statements have meaning which can in principle be verified, and found to be so or not so. Statements which contain the word is can be of this kind; statements which contain the word ought cannot. But we now see that, underlying this criterion, there is a social nexus which alone makes verification possible. This nexus is held together by the obligation to tell the truth. Thus it follows that there is a social injunction implied in the positivist and analyst methods. This social axiom is that

We OUGHT to act in such a way that what IS can be verified to be so.

Bronowski argues that the subculture of scientists is a model for the rest of society to live by. Science is “not a mechanism but a human progress, and not a set of findings but a search for them.” This means that the scientific society “must be a democracy. It be kept alive and grow only by a constant tension between dissent and respect; between independence from the views of others, and tolerance for them.” The values of science are the foundations of freedom.

First, of course, comes independence, in observation and thence in thought…. A man must see, do and think things for himself, in the face of those who are sure that they have already been over all that ground. In science, there is no substitute for independence…. Dissent is the native activity of the scientist…if that is cut off, what is left will not be a scientist. And I doubt whether it will be a man. For dissent is also native in any society which is still growing. Has there ever been a society which has died of dissent? Several have died of conformity in our lifetime.

It isn’t just the freedom of investigation and inquiry, but the personal habits of skepticism, dissent, and experimentation, that are necessary to freedom: you cannot have a free society made up of Puritans, or of people who lack curiosity, or who accept the statements of authority without question. Bronowski therefore stands in direct opposition to those who argue that politics must be based on inculcating habits of obedience and selflessness, or teaching people a “noble lie.” Rather, any society worth preserving, or that can live, rather than stagnate, must be based on a constant search for the truth and willingness to question even the fundamental faiths of the regime. “Men have asked for freedom, justice and respect precisely as the scientific spirit has spread among them.”

Bronowski is thus what Virginia Postrel calls a “dynamist.” He is not interested in finding the “glue” that will hold a nation together, but in finding the lubricant that will keep a society moving, searching, discovering, and progressing. Although Nagasaki and Hiroshima were worldwide tragedies—and a tragedy to Bronowski personally—the scientists who gave the secret of the atomic bomb to the allies did the right thing: science must be opposed to the collectivism and totalitarianism that the Axis would have imposed on western civilization. “Science has nothing to be ashamed of even in the ruins of Nagasaki,” he concludes. “The shame is theirs who appeal to other values than the imaginative values which science has evolved.” In his most famous book, The Ascent of Man, Bronowski discussed this subject in the chapter “The Principle of Toleration”:

It is said that science will dehumanize people and turn them into numbers. That is false, tragically false. Look for yourself. This is the concentration camp and crematorium at Auschwitz. This is where people were turned into numbers. And it was not done by gas. It was done by arrogance. It was done by dogma. It was done by ignorance. When people believe that they have absolute knowledge, with not test in reality, this is how they behave. This is what men do when they aspire to the knowledge of gods. Science is a very human form of knowledge. We are always at the brink of the known, we always feel forward for what is to be hoped. Every judgment in science stands on the edge of error, and is personal. Science is a tribute to what we can know although we are fallible.

Check out Science And Human Values, a brief (118 pages) and eloquent defense of the freedom of the mind.

Mars: You’re all dying to know what I think of the trip to Mars, aren’t you? I love space exploration. I think it’s not just immensely cool because of big machines that make lots of noise, but it’s also representative of the greatest elements of human nature. And I think we ought to go to Mars and we ought to have a permanent settlement on the moon. But no, it should not be done by government.

There may have been a time—and that’s me being charitable—when government oversight of space exploration was warranted as a national-defense measure. That’s no longer true. It’s time to free the market for space. Imagine President Bush giving the following speech:

My fellow Americans,

The recent success of our Spirit spacecraft on Mars has lifted our eyes to the stars once more, after we had closed them in pain on February 1, 2003. But while we will always miss and always admire those who were lost on Columbia, we do their memory the greatest honor by pledging that we will not give up on our destiny to reach out into space.

Humanity has accomplished great things—things unimaginable in previous eras. And the United States has been at the forefront of many of the great accomplishments of science and technology not because we are naturally superior—we aren’t—but because ours is a land of freedom, where the great potential that resides in every human being can be realized without fear and without oppression. Here people can freely discuss ideas, try out their innovations, enjoy the fruits of their success—and learn from their mistakes.

Freedom should be the watch-word as we reach toward Mars. In an older day, Americans traveled to the moon on the basis of government programs which forced hardworking taxpayers to give up their earnings in taxes. But this is a new generation, and it is time to try a new way. Our pioneers don’t need the interference of bureaucrats. They need us to help them by getting out of their way, and cheering them on. That is why I am proposing the following program for America’s New Generation in Space:

First, I am proposing a major overhaul of NASA. Rather than employing yet more boards and commissions, my newly appointed NASA Administrator Rick Tumlinson will oversee the divestiture of NASA, in the form of outright grants to private space programs that prove a dedication to safety, innovation, and cleanliness. These grants will be administered by my new Assistant Director for NASA Divestiture, Ed Hudgins. There will be no new taxpayer dollars directed toward NASA; instead, over the next ten years, that agency will close down, and hand over its resources, and its great task, to American entrepreneurs.

Second, we will ease legal restrictions on space exploration. The first steps on this front have already been taken, but my administration will ensure that setting up a space-travel program is no more difficult or burdensome than setting up any other kind of private transportation company. We must end the government monopoly on space.

Third, I ask Congress to pass a New Homestead Act: legislation which extends recognition of private property rights throughout the solar system to explorers who work on and improve it. This may require reassessing treaties made by older generations of Americans. But people who work hard and produce a space exploration vehicle should be allowed to own the land they find—even if it is on another world.

My predecessor in office told us once that “the era of big government is over.” If anything should make us think of the future—of new eras that our children and their children will be fortunate enough to see—it is the exploration of space. Let’s try a new way. I look forward to seeing what free Americans, unhampered by government interference, can do as we move into a new frontier.

Hmm: Is Julian Sanchez reading my blog?

I lied: I promised I was done with secession, but Southern Appeal has taken a brief whack at it again, so here’s the reply. “[L]et me offer this hypothetical situation to those who think Lincoln did the right thing in opposing the South,” says Patrick Carver. “Suppose the citizens of the San Francisco Bay area, tired of living in the same country as Bible reading, gun toting, NASCAR watching redneck homophobes, wish to secede from the US in order to form a liberal utopian republic. Would you use open force to prevent them for seceding or allow them to peacefully leave the Union?”

This interpretation of the Civil War—as being nothing more than a group of people who decided not to be part of a government anymore—is a common mischaracterization. The Southern states did not merely decide that they were “tired of living in the same country.” What they did was a violation of Constitutional law, and then a recourse to violence to back up that lawbreaking. While violent lawbreaking may be justified when it is an act of self-defense, that is not what the Confederacy was about: it was not about self government, it was about governing others without their consent.

The question of secession must be divided into two issues. First, is secession legal under the Constitution? If the answer is yes, that’s the end of the analysis: the Union was wrong, end of story. If, however, the answer is no, then there’s a second question: was the Confederacy engaged in a legitimate act of revolution? If the answer to that is yes, then, again, the Union was wrong.

Secession is not constitutional, for several reasons which I’ve gone into at length elsewhere. Suffice it here to say that the Constitution creates a government of the whole people of the United States for certain purposes, and that without the agreement of the whole people—through a law, or through an amendment to the Constitution—a state has no right to leave. States are not parties to the Constitution at all; it is not a treaty between sovereign states. The state can no more absolve citizens of their federal citizenship than your electric company can absolve you of your telephone bill. (There are other reasons as well, which, again, I’ve discussed elsewhere.) Since it’s illegal, and since it is the President’s duty to see that the law is faithfully executed, it was Lincoln’s job to enforce the Constitution at point of arms if necessary.

Okay, so now the next question: was the Confederacy engaged in an act of revolution? People have the right to break the law and use violence in doing so, if they are engaged in a legitimate act of revolution. But there are standards here; otherwise every lawbreaker would be able to say that he was just seceding. You’d say “Mr. Capone, you shouldn’t rob banks; you’re under arrest.” And he’d say “No, I just no longer want to obey your bank-robbery law, I’m engaged in an act of rebellion and you are wrong to stop me.” So what legitimizes an act of revolution? The answer is self-defense. As the Declaration of Independence makes clear, the people have the right “to throw off such government” only if it “becomes destructive of these ends,” of life, liberty, and the pursuit of happiness. But the Confederacy had not suffered “a long train of abuses, pursuing invariably the same object, evinc[ing] a design to reduce them under absolute despotism.” Instead, the purpose of their secession was to create a nation in which—to quote the Confederate Constitution—“No...law denying or impairing the right of property in negro slaves shall be passed” (Art. I Sec. IX cl. 4). The Confederacy was not fighting for self government, but for the right to keep slaves and spread slavery without the interference of Washington, D.C. That is not an act of self-defense, and thus the Confederacy was not engaged in a legitimate act of revolution, but in a large-scale act of crime.

Now, it is certainly true, as Steve Dillard would be quick to point out, that most Confederate soldiers did not own slaves, and fought for their homes and their states, not for slavery. He would probably add that many of these men were brave, perhaps even heroic men who faced unimaginable struggles and acquitted themselves with honor. I agree; my own ancestor, Foster Axon Bonnet, who was captured at the battle of Corinth, Mississippi, would no doubt agree as well. But this is irrelevant to the Constitutional question. It is certainly equally true that most of the German soldiers who fought against us in World War II were not themselves murderers of Jews, and that they fought for their families and homes and that they acquitted themselves with bravery as well. That does not change the fact that the regime for which they fought was an illegitimate one that, like the Confederacy, was intellectually indistinguishable from a gang of robbers, rapists, and murderers.

Is it constitutional for a state to leave the union? Yes—and San Francisco may leave the union, too, if they wish—but not unilaterally. The law requires them to get the agreement of the whole people of the United States (through their representatives) to do so. And when people break the law—whether in a bank-robbery gang or in political form as a “state,”—it is the duty of the President to put down such lawbreaking, even if that means using force and killing people. Not pleasant, no. But y’all shot first.

Bierce: Thanks to the Curmudgeonly Clerk, I now know that Ambrose Bierce’s great Devil’s Dictionary is online. I hadn’t even thought about this classic being online. Bierce was so great—like Twain, he could pack a ton of idealism and bitterness into a single line; for example, my favorite entry in the Dictionary:

RED-SKIN, n. A North American Indian, whose skin is not red—at least not on the outside.

Government immunity: Why should government be immune from negligence cases, like in DeShaney v. Winnebago, 489 U.S. 189 (1989)? The reasons for having negligence law is to recompense those who have been harmed, and to deter future negligent conduct. But the arguments for keeping government agents free from liability are generally, things like, people running government need to be free to make decisions without fear of being sued—that immunity “preserves the unhampered exercise of discretion and limits the amount of time the government must spend responding to lawsuits.” Erwin Chemerinsky, Federal Jurisdiction 590 (3d ed. 1999). But if these are compelling arguments, why don’t they also apply to, say, the Mattel Corporation? Why shouldn’t they be immune from suit if one of their toys explodes in a child’s hands? After all, Mattel’s directors need to have unhampered discretion and shouldn’t have to spend their time responding to lawsuits, right? What’s so different about the government? If government undertakes non-police tasks, especially—when it’s running a business or a public park—why should it be immune? The arguments in favor of immunity are equally applicable to attack all tort law.

Chemerinsky points to another argument: “Justice Holmes said that claiming a right to sue the government is ‘like shaking one’s fist at the sky, when the sky furnishes the energy that enables one to raise the fist.’ From this viewpoint, rights do not exist independent of positive law.” Id. at 591 (quoting Kawananakoa v. Polybank, 205 U.S. 349, 353 (1907)). That, I think, is the answer—and I think it proves me right. Government immunities are directly contrary to the Declaration of Independence—which I consider as part of our Constitutional law.

Drug censorship: Ted Galen Carpenter points out that “some advocates of drug prohibition regard the ‘war’ on drugs as more than a metaphor. Pervasive intolerance is also all too typical of a wartime mindset in which opponents are seen, not merely as people who hold a different point of view, but as traitors to a noble cause.” Reminds me of the Petition Crisis of the 1830s—to protect slavery, Congress prohibited people from even petitioning Congress for its abolition. Preserving a giant humbug requires drawing the line of intolerance farther and farther out: just as slavery required eroding the First Amendment, and the rights of due process and habeas corpus, so the Drug War has meant cutting back the Fourth Amendment, allowing cops to arrest for the most minor infractions, to break down your door with practically no warning, and to be excused for murdering innocent citizens. And it means curtailing First Amendment freedoms—as well as other freedoms. Remember in Washington, D.C. in 1998, when voters overwhelmingly approved a measure to legalize marijuana for medical purposes? Representative Bob Barr was able to prohibit the government from even counting the votes in that election. As one writer put it, “137,523 votes were nullified by the Congress of the United States.”

The ultimate betrayal: Good post at Cox & Forkum about the Afghan constitution.

“You are a son of a bitch, Kingsfield!”: Wow, Scipio had one bastard of a professor. My professors were all extraordinarily nice. My torts prof. later explained that they were all afraid of getting sued for intentional infliction of emotional distress.

Sept. 11 Memorial: Sarah Hempel seems to approve of the proposal for reflecting pools. I still think the best monument would be to rebuild the towers bolt-for-bolt and pane-for-pane.

Fame!: Thanks to texasbestgrok for the link. An Objectivist scholar has already written on the connections between biological evolution and Objectivist ethics: check out Harry Binswanger’s The Biological Basis of Teleological Concepts. Also, take a look at Larry Arnhart’s outstanding Darwinian Natural Right. (More info here.) I’m especially pleased with Arnhart’s work; he’s not an Objectivist, but he takes Hayek’s advice seriously to “actively tak[e] part in the elaboration of the consequences of new discoveries do we learn whether or not they fit into our world picture and, if so, how.”

“Private” regulation: I’ve long been bothered by “private” neighborhood groups (like homeowner’s associations and the like) exercising the power to regulate behavior and property use in neighborhoods. Evidently this problem is especially bad in Washington, D.C., where groups are keeping the bar and club scene from operating—and here’s a great article on an attempt to fix that problem. One good quote: “You don’t have legal standing in licensing matters unless you're an opponent of it. And that’s one of the inequities of the system. These small, anti-nightlife citizen groups can be composed of as few as three people. And they’re able to dictate things like operating hours of a restaurant or club. In fact, it’s now become common not to receive your full statutory operating hours. Hamburger Mary’s is a perfect example. After negotiating for a long time with the Logan Circle Community Association and the ANC, they were allowed to open, but only under limited operating hours.”

Blue laws: Interesting little article about a Massachusetts town considering abandoning its no-sales-of-liquor-on-Sunday law. What I found amusing was one businessman’s reason for opposing the law: “‘We’d have to open on Sundays because of the competition. We don’t have a choice,’ he said.” As they say, Baptists and bootleggers—and lazy businessmen who don’t want to compete fairly.

God as governor: Here we go again: we need religion, not because it’s true, but because it is good for society. This is a common theme among Claremont writers. I, for one, would be deeply offended at it, were I a Christian. “We won’t discuss whether Christianity (or our particular version of Christianity, which excludes Mormons, Quakers, and many others), is true; we’ll just point out how useful it is for social reasons.” Funny—I happen to be reading The Screwtape Letters, on the recommendations of my friend Matt and my former Professor, Hugh Hewitt. The other day I came across Screwtape’s advice to Wormwood:

Let [the human] begin by treating the Patriotism or the Pacifism as part of his religion. Then let him, under the influence of partisan spirit, come to regard it as the most important part. Then quietly and gradually nurse him on to the stage at which the religion becomes merely part of the “Cause,” in which Christianity is valued chiefly because of the excellent argument sit can produce in favour of the British war effort or of pacifism. The attitude which you want to guard against is that in which temporal affairs are treated primarily as material for obedience. Once you have made the World an end, and faith a means, you have almost won your man.... Provided that meetings, pamphlets, policies, movements, causes, and crusades, matter more to him than prayers and sacraments and charity, he is ours—and the more “religious” (on those terms), the more securely ours.

C.S. Lewis, The Screwtape Letters 35 (New York: MacMillan 1961).

Overlawyering: I tend to agree with Walter Olson and Ted Frank that we’re over-lawyered, and not with Curmudgeonly Clerk and others who think we aren’t. But a bunch of folks linked to this story about a guy wanting to sue the cable company for making him fat...but I didn’t see anyone mention the last line of the story: “Wisconsin Circuit Court records show no civil lawsuit papers filed in Dumouchel’s name.” Can you spell hoax?

Ahab: Check this out: the real Captain Ahab?

Um...what did he just say?:

[T]he article of faith on which Jackson bases his appeal is the feminist one that only what actually happens should be relevant to questions of sexual crime and punishment. Thus a woman can lead a man up to the point of penetration, only then say ‘no’ and subsequently prosecute him for rape if he is a moment late in heeding her instruction.... Pre-feminist common sense suggested that a woman who comes alone to a man’s hotel room late at night has already consented to sex with him, but on the all-or-nothing principle so dear to ideologues everywhere, feminist orthodoxy insists that the adoption of this rough-and-ready but extremely useful guide would be tantamount to saying that a woman who has slept with other men not her husband, or even who dresses provocatively has already consented to sex. And the feminist interpretation of the law is now almost uncontested in the courts. No means no—even though no one else hears it, even though everyone knows that it may mean yes—because feminists want to reserve to women the right and freedom to be indiscrete [sic].”

Yeah, he really did say that.... (emphases added).

“Only a fool ever wrote, but for money”: Little Samuel Johnson quote there. Anyway, check out two good writing for money opportunities for legal types. First there’s the Pacific Legal Foundation’s own writing competition, which has a very nice $5000 first prize plus sizeable other prizes (and my respect for the winner). Then there’s the Friends of America’s Past announcement that they’ll pay for articles on the legal issues surrounding NAGPRA and similar legislation. Essay competition and publication-for-money was a very handy way of helping out with my own law school bills.

Well put: “Foul language is like saffron, vermouth, or sea salt: A light and fearless touch adds flavor and edge that can be gotten in no other way, though a heavy hand is oppressive.”

Calm down!: You know, it is bad enough that everyone is accusing everyone else of being Adolf Hitler. Now Thomas Hibbs says “But [Thomas] DiLorenzo seems less interested in rehabilitating [John Wilkes] Booth than in denigrating Lincoln.” Seems? God knows I’m no fan of DiLorenzo’s work, but even I think it’s unfair to characterize him as “interested in rehabilitating” an assassin. One can (wrongly) hate Lincoln without thinking Booth was a good guy.

Reductio ad absurdam: But real. And I admit, I don’t think it’s an easy case. If two people clearly in control of their faculties want to do something that offends others, I don’t think the offense justifies the others in stopping the two consenting adults. So saieth an ancient maxim of the common law, volenti non fit injuria. But...this is so totally bizarre! Perhaps this behavior is so absurd that it is per se evidence of insanity, which vitiates the consent, and therefore allows us to stop them from doing the thing. But that is a very dangerous line to draw, because then along comes the Helpful Leftist who says “Yes, and taking a job for less than minimum wage is equally absurd and the state should be able to stop you...” and then the Helpful Rightie comes along and says “Yes, and believing that God absolutely prohibits you from participating in a war is equally absurd....” So no, I don’t know the answer. So I have to fall back on my default position, which is, that people should be allowed to do things even if they are yucky.

Censorship!: Except not really. This story says that a group of geologists are demanding that the National Park Service remove a creationist book from its bookstores. The creationists, of course, are reveling in the opportunity to portray themselves as victims of persecution. But what steps have been taken to censor these courageous visionaries who think the earth is ten thousand years old and that modern science is a conspiracy of Satan to lure children away from the word of God? “[T]he presidents of seven science organizations, who jointly signed a December 16, 2003 letter to the park’s superintendent [and another letter from the American Institute of Biological Sciences] urging him to remove the book. Apparently in an effort to placate some outraged Grand Canyon employees, the book has been moved from the natural sciences section to the inspirational reading section of park bookstores.” How is that censorship? Isn’t that exactly what we want scientific advisory organizations to do?

First of all, we must strip the creationists of the pretense that they are doing science. If I were to write a book declaring that the Grand Canyon was carved by aliens last Tuesday under the supervision of Elvis Presley, that book would have no more legitimate claim to scientific respectability than this book, and no right to be placed in the “Geology” section of a bookstore. And I do hope that if someone did publish such a book, that the presidents of America’s non-governmental scientific organizations would sign letters urging bookstore presidents not to call it “fact.”

More information at the National Center for Science Education. In the meantime, I loved the line: “Creationism is not the answer to evolution; ignorance is.” Hear, hear! Intelligent Republicans—and they do exist—ought to be extremely angry at the fact that this article is put on a GOP website as if good Republicans are creationists. The prominence of creationists in the conservative movement harms that movement. As Friedrich Hayek wrote forty years ago,

I have little patience with those who oppose, for instance, the theory of evolution or what are called ‘mechanistic’ explanations of the phenomena of life simply because of certain moral consequences which at first seem to follow from these theories, and still less with those who regard it as irreverent or impious to ask certain questions at all. By refusing to face the facts, the conservative only weakens his own position. Frequently the conclusions which rationalist presumption draws from new scientific insights do not at all follow from them. But only by actively taking part in the elaboration of the consequences of new discoveries do we learn whether or not they fit into our world picture and, if so, how. Should our moral beliefs really prove to be dependent on factual assumptions shown to be incorrect, it would be hardly moral to defend them by refusing to acknowledge facts.

Constitution of Liberty 405 (1960). Yet many conservatives continue to insist that such facts are bad for society, and that we ought to preserve religious traditions, not because they are true, but only because they are good for society!

Job: All this talk of Howard Dean’s citation to the Book of Job puts me in mood for some of the Bible’s most beautiful poetry. Job is a terrible book with a terrible moral, but the words! Check out the description of the horse (39:19-25):

hast thou clothed his neck with thunder? Canst thou make him afraid as a grasshopper? the glory of his nostrils is terrible. He paweth in the valley, and rejoiceth in his strength: he goeth on to meet the armed men. He mocketh at fear, and is not affrighted; neither turneth he back from the sword. The quiver rattleth against him, the glittering spear and the shield. He swalloweth the ground with fierceness and rage: neither believeth he that it is the sound of the trumpet. He saith among the trumpets, Ha, ha; and he smelleth the battle afar off, the thunder of the captains, and the shouting.

If that doesn’t capture the essence of a horse, I don’t know what does.

Bravo!: This month’s Nike Courage In Capitalism Award—named in honor of those brave businessmen who stood for principle in the Kasky case—goes to McDonald’s, for caving in to the nanny state’s cheerleaders.

Fame!: Thanks to Stephen Dillard at Southern Appeal for the very kind words. Those interested in my articles on the constitutional issues involved in the Civil War are invited to check out: “Liberty and Union, Now and Forever,” Why Secession Was Wrong (pdf), Freedom And The Wolves, Why Joseph Sobran Is Wrong about The Civil War, and Law And Libertarianism: A Reply to Stephen Kinsella. And I’ve blogged about it here, here, here, here, and here, and probably elsewhere, before finally having enough of the subject.

Tort reform: I liked this Walter Williams article, but...um, it’s David Bernstein, not Richard. Richard’s the “presidential historian.”

Cartoon: Heh, heh, he...hey, wait a second. I work in public interest law. So that doesn’t even leave the money.

Columbia tribute: Nice idea.

More on Asian property rights: On the theme of eminent domain abuse in China, colleague Jim passes along this story from the San Francisco Chronicle a few years back:

Yanni Concerts Prompt Suicide Threats

Five farmers in India are threatening to commit suicide because of a series of forthcoming concerts by Yanni, but it’s not because they don’t like the composer’s New Age Music.

The farmers say their crops were destroyed to build a stage for the shows. They are threatening to immolate themselves at the site Thursday, the day of Yanni’s first performance, unless the government pays adequate compensation.

This follows protests from conservationists who say the government is ignoring the potential damage from the concerts to the nearby Taj Mahal in Agra.

Organizers of the concerts say they are making efforts to ensure that the performances will not damage the 17th century monument.

San Francisco Chronicle, March 18, 1997, at B3

Upcoming Federalist Society events in Orange County:

January 13 (5:30 pm) Professor Viet Dinh will speak on “Responding to Terror: The USA Patriot Act and Other Issues.” The event is at the Hyatt Regency in Irvine.

January 19 (6pm), Manuel Klausner will speak on “Battling Bias: Governmental Race-Based and Race-Neutral Approaches and the Role of the Market.” This event is at Chapman University School of Law.

January 29: Robert Levy of the Cato Institute will speak on the subject: “Does the Second Amendment Secure an Individual's Right to Bear Arms?” I’ll post the time and location as soon as they’re announced.

Also, on January 29, at noon, I will speak at Chapman on the subject of getting a job in public interest law.

Finally, don’t forget the January 30 Chapman Law Review symposium on consumer protection law. Dr. Levy will also be speaking at this event.

Fame!: Thanks to Behind The Top 500 for the permalink.

2003 Survey Thingie: From Musings from the Doc.

1. What did you do in 2003 that you’d never done before?
Blogged
Published a law review article
Had a brief make a difference in a Supreme Court case
Went hay shopping

2. Did you keep your new years’ resolutions, and will you make more for next
year?
I don’t even remember what last year’s were. I don’t know if I’ll make more next year, but I did try again this year.

3. Did anyone close to you give birth?
A few friends, but no relatives.

4. Did anyone close to you die?
Yes, Grandma Cross, as mentioned on the blog.

5. What countries did you visit?
The District of Columbia. (Ahem. This is just a small joke.)

6. What would you like to have in 2004 that you lacked in 2003?
An Instalanche.

7. What date from 2003 will remain etched upon your memory, and why?
February 6, 2003.

8. What was your biggest achievement of the year?
Justice Thomas’ reliance on my brief in his Grutter dissent.

9. What was your biggest failure?
Losing Grutter.

10. Did you suffer illness or injury?
Nothing serious. But I did get the flu briefly and tried NyQuil. Why didn’t anyone tell me it was licorice flavored? God was that awful!

11. What was the best thing you bought?
My Thomas Jefferson clock

12. Whose behavior merited celebration?
John Eastman’s outstanding litigation in Guinn.

13. Whose behavior made you appalled and depressed?
Kenny Guinn’s!

14. Where did most of your money go?
De lan’lawd.

15. What did you get really, really, really excited about?
John Varley’s new novel.

16. What song will always remind you of 2003?
“Footprints” by the Miles Davis Quintet.

17. Compared to this time last year, are you:
i. happier or sadder? Much happier
ii. thinner or fatter? Fatter
iii. richer or poorer? Same

18. What do you wish you’d done more of?
Reading

19. What do you wish you’d done less of?
Blogging

20. How did you spend your holiday?
Christmas: At home with the family. New Year’s: sitting around wishing it would go away.

21. Who did you spend the most time on the phone with?
Erin.

22. Did you fall in love in 2003?
Yes, with the amazing Erin.

23. How many one-night stands?
None.

24. What was your favorite TV program?
Don’t watch TV anymore.

25. Do you hate anyone now that you didn’t hate this time last year?
Yes

26. What was the best book you read?
Consciousness Explained by Daniel Dennett

27. What was your greatest musical discovery?
Chet Baker

28. What did you want and get?
Erin

29. What did you want and not get?
A campeachy chair

30. What was your favorite film of this year?
I only saw three, and I didn’t like them: the latest Lord of the Rings movie, Peter Pan, and Terminator 3.

31. What did you do on your birthday, and how old were you?
I didn’t do anything special, but Erin gave me some wonderful presents. I’m 28.

32. What one thing would have made your year immeasurably more satisfying?
Oh, the eradication of some folks.

33. How would you describe your personal fashion concept in 2003?
I’d sum it up as: “You can buy clothing on ebay?”

34. What kept you sane?
The Volokh Conspiracy

35. Which celebrity/public figure did you fancy the most?
Oh, Charlize. Some day we will be together at last!

36. What political issue stirred you the most?
I think Guinn v. Legislature of Nevada counts.

37. Who did you miss?
That should be whom did you miss. Elizabeth.

38. Who was the best new person you met?
Andrew Lloyd, definitely.

39. Tell us a valuable life lesson you learned in 2003:
Don’t trust women. But I knew that already.

40. Quote a song lyric that sums up your year:
“Saw the people standing, a thousand years in chains;
Somebody says it’s different now, but look, it’s just the same.” (Creedence Clearwater Revival, “Wrote A Song for Everyone”).

Eminent domain in China: An article in the Economist (which you have to pay to read) addresses the use of eminent domain in China. The Chinese government, you see, actually takes people’s homes and businesses from them, and tears them down to give the property to commercial redevelopers. Can you imagine? But it’s not sitting well with many Chinese folks:

The extent of public anger over the brutality and unfairness involved in China’s urban makeover is starting to alarm the leadership.... The number of protests triggered by urban redevelopment has risen fast in recent years. According to the official China Economic Times, 8,516 petitions were delivered to the central government in 2001 complaining about forced relocation. The figure increased to 3, 513 last year and already stood at 11,641 for the first eight months of this year. Frenzied investment in construction...is fuelling the greed of developers and of officials who take bribes in return for development rights.

The protests have become more potent recently. On August 22nd, a man set fire to himself in the eastern city of Nanjing after his house was destroyed to make way for a new business district. On September 15th, a man did the same in Tienanmen Square, and another tried on September 25th in Beijing.

China Daily, an official newspaper, noted that according to the law, the government cannot take away residents’ land use rights except for public welfare projects. In practice, local officials often sell land use rights without consulting the occupants of buildings on the land. Developers, with official connivance, sometimes intimidate occupants into accepting meagre compensation. The residents may get newer housing, but often far from their work.

....Shanghai has been relocating people at a rate of about 80,000 a year since 2000 and plans to move another 400,000 by 2007 (the city wants a new look for the 2010 World Fair).

In September, 152 lawyers in Shanghai formed a group to give legal aid to those being moved out. But other, unnamed lawyers have been quoted as saying that without laws clarifying the rights of the uprooted, talk of protecting their interests is “idle.”

Glad such things don’t happen in America.

Grammar cop: “It was, quite literally, an eventful year....” Ouch.

Finally: The principal who allowed gun-wielding cops to conduct a brutal drug raid of a Goose Creek, South Carolina high school, has resigned. But Jesse Jackson is right: “He cannot be a scapegoat, however. He is just one actor in this scheme that humiliated and violated the children.”

Links: In honor of his thoughtful posts on rent control, I have added Atrios (an intelligent and consistent liberal) to my blogroll.

Other jurisdictions: Prof. Marston has a lot of interesting posts on the supreme courts of other nations, including the new one in Afghanistan.

Reading: Just finished Akhil Reed Amar’s book The Bill of Rights. It’s really outstanding. The thesis, simply put, is that “we must ponder the ways in which the Reconstruction experience refracted the Founders’ words, and perhaps deepened and extended their meaning.” Id. at 268. Amar argues that, for the most part, the first ten amendments referred primarily to the rights of “the people” rather than of persons, and was concerned at least as much with structure as with the substantive protection of individual liberty. Here, Amar builds on the work of recent historians who have emphasized the so-called “classical republican” model of the American Revolution. Obviously I’m not persuaded by that school of historians, so I’m skeptical of some of Amar’s view in that regard—but his arguments are well thought out, and, at least in some respects, convincing. His interpretation of the Fourth Amendment, for instance, I found original, thorough, and satisfying, even though it proposes a reading of the Amendment quite a bit out of step with modern interpretations. Anyway, assuming arguendo that Amar is right that the bill of rights emphasized collective rights more than individual rights—and assuming arguendo that such a dichotomy is even logically possible—Amar argues that the Reconstruction experience that set the context for the Fourteenth Amendment changes a lot of this. The right to keep and bear arms, which, Amar argues, was originally a right of “the people” as a whole, was transformed by the Fourteenth Amendment into an individual right. Although, again, I think he emphasizes the “collective right” and “classical republican” school a little too much, I found his arguments quite persuasive and at the very least, scholarly and enlightening. One of the best books on the Constitution I’ve ever read, in fact.

More fan mail!: I’m delighted to report that my correspondent has written again. After receiving his first note I asked if he’d let me post his real name, but when I got no reply, I assumed he was ignoring me. I apologize for that; here’s his most recent note:

“Dear Mr Sandefur,

“You caught me out. My real name is R Feder. You saw through me so quickly. Thanks for your imbecilic response to my e-mail on your website. Of course, if most of the world think it’s OK to redistribute wealth via tax, but you say it’s just like robbery then it must be robbery. Do you understand the difference between objective and subjective concepts? Money is an invented concept. If everybody suddenly decided that money didn’t mean anything it wouldn’t (subjective significance). If everybody suddenly decided the laws of gravity didn’t exist they’d be in deep trouble. So your notion of robbery is subjective. Check out Robin Hood. Has it ever occurred to you that you might be wrong about anything?

“So you would rather America be hated by people in favour of equality than liked. Nice position. As you said I’m an idiot on your site here is a reciprocal description of my impressions of you—you are an intellectual snob with tendencies towards being a fascist.

“I have to say I came across your ‘blog’ totally by accident when searching for information about the computer game Freespace. This is one of the best space simulations of all time and it is American. So it proves that some good things come from America occasionally. Give it a try—you might like it. So who won the baseball ‘World Series’ this year. Hope it was an American team—but then it always is right? So when was the last time America won the Football (Association football as in played by the feet) World Cup. I know you aren’t a sports fan (figures) but check that one out.

“Your link to Noam Chomsky hate propaganda is laughable but also disturbing. He is one of the world’s great academics with a level of insight which you can only dream about. I reckon you have some real deficiencies in knowledge. There is a subject called Sociology believe it or not. Perhaps you would do well to study it and some social history too—or was that made up? You seem to exist in a dream world (like most Americans) Stop watching Stallone movies and thinking you can do intellectually what he does physically ie [sic] bullying the opposition into submission.

“It seems you can’t take criticism without responding like an angry teenager so have another go. Are you a member of any fascist groups by the way?

“I guess I just have to wait now for you to ‘sue my ass off’ for daring to question a lawyer in the greatest nation in the world.

“One crucial point which seems to be relevant to your site is that the monetary system on which capitalism is based is a constructed sytem [sic]. Simply saying it’s great and quoting loads of others who say it’s great is pathetic. Humans are no more compelled to use the free market system than any other system of economic governance. Money is simply a convenient invention for helping people live together. Placing your faith in any human invention is a dangerous thing. You are much better off trusting the laws of physics (see Albert Einstein). Do you really care about money? My guess is you don’t. If we were on a burning ship together would you try to rescue me or your million dollar filled briefcase? Measure yourself by concepts like your humanity and your compassion for other human beings stuck in this mystery of life. These arguments were all gone over and won by Charles Dickens over a hundred years ago. Don’t put a hate link for him now!

“R Feder (sometimes known as Martyn Neale)

“P.S You can use both my names on your site. And please avoid using sic in this letter as it is another of your devices for assuming intellectual superiority. Saying the e-mail was hilarious was seriously puerile—who the hell do you think you are? Let’s not forget that William Shakespeare wrote in Henry VI, ‘We must first kill all the lawyers.’ [sic] The law truly is an ass.”

Self-fisking emails! I love it!

Update: A Pathetic Earthling informs me that America and England reached the same level in the latest World Cup. I wouldn’t know, I was busy watching the Stallone marathon and ordering my servants about.

Cronyism: This just in: God endorses George Bush. (Thanks to Don for the pointer).

What you missed over the weekend: Libetarian Bookworm recommends Capitalism: The Unknown Ideal by Ayn Rand. Also, I get some hilarious fan mail; thoughts on the rule of law; and the latest antitrust absurdity.

Fame!: Go by and check out my little booth at the Carnival of Capitalists.

Faith as emotion: Dave’s Mormon Inquiry has a good post on modern theology: “If it feels good, believe it. That’s the short form of the popular Mormon testimony model…. The longer form of the Mormon testimony model might go like this: ‘If it feels good, believe it, if it’s what we told you to believe. If anything else feels good, don’t believe it. If what we told you to believe doesn’t feel good, then there's something wrong with you.’” If I were a meanie, I’d point out that this is not unique to Mormonism, but is endemic to religion generally. But I won’t be a meanie. Instead, I’ll believe in God because…well, I just feel there is a God, deep in my bones. And wouldn’t it be awful if there weren’t One?

Rule of Law: Prof. Solum has a nice brief explanation of the term “rule of law.” A few thoughts. First, check out the works of Hernando de Soto, in particular The Mystery of Capital, for an excellent illustration of the importance of the “rule of law.” Capital formation and investment will only take place where the rule of law is regular and predictable. This is one reason that inner cities do not prosper: when gang activity is severe, businessmen aren’t going to go in and invest to build new businesses and what not. And the same is true on an international level, as I’ve mentioned before. I mean, would you want to invest in an enterprise if you ran a serious risk of having your money “nationalized” by a foreign country? No, you want to be sure that the money you invest is likely to at least be returned to you, or, better, be returned to you with profit. International investment—the very thing the left calls “colonialism” and “exploitation”—are the path to national prosperity for the rest of the world, and even for places in America. Heck, one reason for California’s economic woes is the fact that badly written laws like Cal. Bus. & Prof. Code §17200, and courts’ use of “public policy” concepts, are imposing unpredictable economic burdens on California businesses, and thereby deterring investment and economic growth.

Second, Solum writes that “[t]he predictability and certainty of the law creates a sphere of autonomy within which individuals can act without fear of government interference.” That’s right; in a freer society you know beforehand what you cannot do, which allows you to make plans, and thereby invest. See further Friedrich Hayek, The Constitution of Liberty ch. 11-14 (1960). Prof. Solum cites Rawls’ rules for the rule of law; I prefer Hayek’s, which are similar, but, I think, more precise: 1) government must never coerce an individual except in the enforcement of a known rule; 2) the laws are known and certain; 3) the law should apply equally to all, meaning that those inside any group singled out acknowledge the legitimacy of the distinction as well as those outside it; 4) the doctrine of separation of powers must be observed; rules must not be made with particular cases in mind, nor must particular cases be decided in the light of anything but the general rule; 5) the private citizen and his property must not be treated as an object of administration by the government or a means to be used for its purposes. Of course, knowing the rules beforehand doesn’t help much if the rule says “You may not do anything without the government’s permission,” but even that is preferable to saying “Maybe you can do something or maybe not, we’re not going to tell you.” Remember the Twilight Zone episode “It’s A Good Life”? What makes it perhaps the creepiest episode ever is not that “the monster” has absolute power—but that you have no way of knowing when he’s going to use it.

Incidentally, it’s been said that the goal of classical political philosophy (or at least of Plato’s) was to put power into the hands of the best men. See Leo Strauss, Plato, in History of Political Philosophy (L. Strauss & J. Cropsey eds 48 (1963). It’s also been said that modern political philosophy sought to make political life possible by “lowering its goals.” That’s often said as a pejorative, but our founders were quite proud of replacing the “rule of the best men” with the rule of law; as Madison put it, “It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm.” See also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (“The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”). The rule of law is a corollary of equality, therefore, because it is based on recognizing the fact that government is run by people no different than we are—people who, given political power, are going to use it for their own ends. Solving the “agency problem” means running government on the basis of rules, rather than on personal trust in the “best ruler.”

Finally, an integral part of the rule of law is stare decisis, as explained in Justice McComb’s dissent in Holt v. College of Osteopathic Physicians and Surgeons, 61 Cal.2d 750 (1964).

Earthquakes and modernity: I was pleased at this article, which comes close to making an observation that I thought I was alone in making—the difference between the Paso Robles earthquake and the Bam earthquake reflect the real world consequences of seeing the world through the eyes of reason, science, and modernity on one hand, and tradition, faith, and superstition on the other. “[A]fter a quarter of a century, Iran is still being ruled by a useless, incompetent semi-theocracy, which is fatalistic, complacent, unresponsive and often brutal. And such a system does not deliver to its citizens one fraction of what the Great Satan, for all its manifest faults, manages to guarantee to ordinary Americans.” But Sandefur, you say, are you saying that government regulation of buildings is a good thing? In this case, yeah, probably. Perhaps a really libertarian society would regulate building safety by case-by-case tort law, but that seems much less efficient and much more expensive than a simple, basic building code (so long as the application of that code is carefully scrutinized by courts to ensure that it isn’t used unfairly).

Oh, and I found that article on Butterflies & Wheels, an excellent skepto-blog maintained by some of our English friends (sorry about the nyah-nyah thing, guys). I’m adding it to the permalinks, cause it’s so good.

International relations: On behalf of the United States I would like to say the following to the entire European community. Nyah-nyah nuh nyah-nyah!

Publishing: A cute article on the stranger magazine stories of the past year. My favorite: “Redbook published a cover photo of actress Julia Roberts that USA Today revealed to be a composite created by sticking the head of a year-old photo of Roberts atop the body from a four-year-old photo. The cover line read: ‘The Real Julia.’”