::Freespace::

Okay, now I really am leaving: But here is the Libertarian Bookworm.

Bell on copyright: Prof. Tom Bell, who I mentioned talked me out of the notion that copyright was a natural right based on creation, makes some points on the subject at Legal Theory Blog.

Art and sex: Continuing the recent thread on whether there are any good artistic depictions of loving sex, a Mr. Richard Feder, of Fort Lee, New Jersey, writes,

I think it is nearly too private to capture sex in art. One has to watch Liv Tyler’s performance losing her virginity in Stealing Beauty. But already, that’s a problem: I don’t think the concept of a fully realized, emotionally satisfying sexual relationship should be dramatized by one’s first time. Steve Hanks does good a job of projecting what might be pre or post sex imagery, but it’s hard to draw the line with him: he borders on something erotic as to feel inappropriate peering in at it, even if you admire and relate to the feeling.

But if actual scenes of sex are the wrong way to dramatize an integrated romantic love, which implies and celebrates the sexual component of such a love, there are other ways to capture the idea. That is in fact what I had in mind when I first contemplated the question and after seeing the followup messages, I realize that I could not have been thinking of actual sex depicted in art. What I was thinking of was a depiction of a loving, sexual relationship that is dramatized by implication as healthy, domestic, and emotionally integrated. One artist I thought of who does this well in sculpture is Michael Wilkinson—although he’s a little bit too “classical” feeling for me and some of the figures appear nearly tortured by their depth of love, which ruins those pieces for me. I like Frederick Hart, too, but he’s too Christian and that tortured-feeling overwhelms much of his pieces with women and couples. Where he departs from too ethereal a subject, however, he is about the best there is. The joy and comfort of his Celebration is something higher than just romance. If you see any of the sculpture for which his wife is a model (including the center woman figure in Ex Nihilo) you have no doubt that Hart himself had a fully realized capacity for romantic love. Unfortunately, so many of the other examples I thought of in the visual arts are to one degree or another touched by Christianity. There are so many beautiful paintings and sculptures that express a sexualized love that includes a touch of guilt or, worse, a touch of “disbelief,” which I attribute to idealism infecting the artist’s concept of love and sex.

Very well put, Mr. Feder, and I agree—except that I haven’t seen Stealing Beauty. I don’t care much for Wilkinson; I prefer to get my Frederick Hart from Hart himself. And much as I deeply love Steve Hanks, even I’m less enthusiastic about his nudes. While we’re mentioning artistic depictions of love, check out Sandra Shaw’s Love. But obviously it isn’t sex, either.

Update: Chris Geidner makes some related points at En Banc.

The Chinese laws: You know, years ago, there were people here in California who really hated the Chinese. There still are, but it was worse then. They did all sorts of nasty things to the Chinese. They passed one law that required anyone arrested to have his head shaved. They said this was a health measure to combat lice, but everyone knew what it really was. It was an attempt to punish the Chinese by cutting off their long braided queues, that they prized. One victim of this law sued. Supreme Court Justice Stephen J. Field, my hero, struck down the law as unconstitutional: “The ordinance was intended only for the Chinese in San Francisco,” wrote Field. “[I]n order to enforce the payment of a fine imposed upon him, it is necessary that torture should be superadded to imprisonment.... Probably the bastinado, or the knout, or the thumbscrew, or the rack, would accomplish the same end; and no doubt the Chinaman would prefer either of these modes of torture to that which entails upon him disgrace among his countrymen and carries with it the constant dread of misfortune and suffering after death. It is not creditable to the humanity and civilization of our people, much less to their Christianity, that an ordinance of this character was possible.” Ho Ah Kow v. Nunan, 12 F.Cas. 252, 255 (C.C.D. Ca. 1879). Not long afterwards, Field struck down a law limiting the issuance of licenses for laundries. In re Quong Woo, 13 F. 229 (C.C.D. Ca. 1882). And he was in the majority in Yick Wo v. Hopkins, 118 U.S. 356 (1872). He was lambasted in the California press for his defense of the Chinese. See Paul Kens, Stephen J. Field: Shaping Liberty from The Gold Rush to The Gilded Age 206-210 (1997). The San Francisco Examiner, for instance, complained that Field was using the law “to save the queue of the vilest coolie wretch who pollutes the land and disgraces our civilization.” Quoted in id. at 206.

So here’s my question. Why were the complaints of the populists against Field’s decisions in these cases wrong, while the complaints of the populists against the Massachusetts Supreme Court’s opinion in Goodridge right? Why is vox populi bad in those cases, and not in this case? Those who persecuted the Chinese hated Field because he was countermanding the will of the people. The same is said by those who attack the Massachusetts Supreme Court today. What’s the difference? If the courts ought to defer to legislatures, where does that deference end? If you single out any point—any point at all—then you are trusting the judges, as I said below, to stick to that point. And you also have to explain what the difference is (as a matter of principle) between homosexuals and the Chinese. If you don’t single out any point, then you have to say that the Chinese persecution cases were wrong, and, I think, that there is really no point of having a court at all.

Quite a substitute: Justice Thomas at the alma mater.

Kill all the lawyers?: What Owen Courreges thinks is damning about Prof. Barnett’s argument is really just the basic problem of the judiciary itself. Owen argues that courts might “instead...rule based upon their own ideas of what would best allow for human flourishing.” In other words, judges might not do what Barnett thinks—they might do totally crazy, off-the-wall things. Well, yeah, but...they might do just about anything.

Like other conservative arguments about “judicial tyranny,” this is really just an argument against having courts at all. Exactly the same statement might be made about, say, forensic evidence. Well, we ought not let the court decide who murdered the victim, says some alternate-universe Owen, because there’s no guarantee that the judges will abide by things like evidence and facts and logic; they could very well rule based on their own ideas of who ought to be found guilty. There’s no restraint! You’re giving power over the life and death of criminal defendants to unelected courts! What if you get a bunch of Foucaultian judges who don’t care about bullet trajectories and fingerprinting? There’s no reason to believe that the court will abide by the particular ideology that holds that bullet trajectories and fingerprinting are relevant issues to a court of law....

What I’m getting at is, even if you think that issues like human flourishing and morality are entirely subjective, at some point you simply have got to let the courts do their work. Barnett is saying, let the court do the work that the Constitution obviously gives to the court—that is, to prevent states from violating the privileges or immunities of citizens, and to use the usual philosophical and scholarly methods of interpreting such terms. If you refuse to trust the court at all because someday a court might be stalked by admirers of German philosophy, then why have a court system at all? This question is particularly important here because the very purpose of having an unelected, life-tenured federal judiciary is precisely so that they will not be influenced by popular passions. We gave them independence for a reason. We ought not then to complain when they act independently.

I’m not saying courts are always right, although I doubt they’re wrong as often as legislatures are. What I’d like to know is what the advocates of judicial restraint—those who are always so much more trusting of the mobs of idiots in our legislatures—see as the proper role of a judge, if it isn’t to interpret the law. And if it is to interpret the law, then you are going to have to let the courts do that, even though some day, judges might be appointed to the bench who have read Nietzsche! That’s the risk that you run in government. What Madison said of the legislatures, in his speech on the federal judiciary, is equally applicable to the courts:

I have observed that gentlemen suppose that the general legislature will do every thing mischievous they possibly can, and that they will omit to do every thing good which they are authorized to do. If this were a reasonable supposition, their objections would be good. I consider it reasonable to conclude that they will as readily do their duty as deviate from it; nor do I go on the grounds mentioned by gentlemen on the other side—that we are to place unlimited confidence in them, and expect nothing but the most exalted integrity and sublime virtue. But I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks, no form of government, can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men; so that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.

Out of town: Since I’m going out of town, I’ve posted the Libertarian Bookworm early this week.

Update: Well, looks like I won’t be leaving tonight after all....

Libertarian Bookworm: Since February 14 is the day he celebrated as his birthday, I recommend you pick up a good book about my hero, Frederick Douglass. Unfortunately, there isn’t a single, really good book about Douglass, except for his own autobiographies—Narrative of the Life of Frederick Douglass, An American Slave (1845), My Bondage And My Freedom (1855), and The Life & Times of Frederick Douglass (1884)—and these don’t contain a lot of his best writing.

Born some time in 1818 (like most slaves, he never did know exactly when), Douglass (whose original name was Bailey) was raised on a rural Maryland plantation, before being sent to Baltimore with a relative of his master, named Hugh Auld. When his master died, Douglass became the property of the Auld family, who, frustrated at Douglass’ intransigence, sent him to the notorious “slave-breaker” Edward Covey, in 1834.

Over the next six months, Douglass was worked and whipped in extremis, in an attempt to break his will. The result was just the opposite. Pushed to his last, Douglass turned on Covey and “held him so firmly by the throat that his blood followed my nails.” After a two-hour fight Convey retreated, and never whipped him again, and Douglass forever repeated the lesson he had learned: “he is whipped oftenest who is whipped easiest.” After leaving Covey, Douglass conceived a plan to escape, but was discovered. The usual punishment for such an act was to be “sold down the river,” into the deep south, which slaves rightly regarded as a fate worse than death. But Douglass escaped this fate; his master proposed to hire him out to work caulking the hulls of ships, which work would earn him the money to buy his freedom. But after an argument with Auld, Douglass once again decided to escape, and this time succeeded, reaching New York on September 4, 1838. He got a job, and he later recalled how it felt when he got paid for the first time:

I was not long in accomplishing the job, when the dear lady put into my hand two silver half dollars. To understand the emotion which swelled my heart as I clasped this money, realizing that I had no master who could take it from me—that it was mine—that my hands were my own, and could earn more of the precious coin—one must have been in some sense himself a slave.

Douglass had been reading for several years by this time; Auld’s wife Sophia had taught him to read the Bible, and he had gone from it to the Columbian Orator, a popular collection used to teach rhetoric, and which included several eloquent assaults on slavery. After his escape, Douglass gradually started attending abolitionist meetings in Massachusetts, and at one of these meetings, met William Lloyd Garrison. Garrison helped set Douglass up as an anti-slavery orator and writer, and he wrote the foreword to the Narrative.

Eventually, Douglass broke with Garrison over Garrison’s argument that the Constitution was evil, and that the north ought to secede from the south. Douglass also rejected Garrison’s pacifism and abstinence from politics, (and was even implicated in John Brown’s raid on Harper’s Ferry.)

When the Civil War broke out, Douglass worked untiringly to make it clear that the war was one for liberation, not merely for union. He met with Lincoln, and eventually persuaded him to allow black soldiers to fight in the ranks with whites, and to be paid equally. After the war—in which two of his sons participated as soldiers—Douglass wrote and argued for the passage of the Civil Rights Act, and the Fourteenth and Fifteenth Amendments.

Shortly after the passage of the Fifteenth Amendment, the work of Reconstruction was not over. The Congress passed the Civil Rights Act of 1871, which went much farther than the first, by prohibiting racial discrimination by private parties such as theaters and taverns. In the Civil Rights Cases, the Supreme Court struck down the act, holding that the Fourteenth Amendment only allowed Congress to regulate state action, not private action. Douglass denounced the decision in one of his greatest speeches.

In the years that followed, Douglass was selected Marshal for the District of Columbia, a largely ceremonial position, but one of which he was extremely proud. He was chosen ambassador to Haiti, but despite hard work, found himself frustrated by government agents who refused to take him seriously.

Douglass refused to retire, upon his return to America. He discovered that the plight of the former slaves was even worse under the new sharecropping system that had developed since the war, and in a sensational speech, he denounced emancipation as a “fraud on the world!” He publicized the lynching crisis of the late 19th century, spoke out in defense of the rights of freedmen to own firearms (he said that “the liberties of the American people were dependent on the ballot box, the jury box, and the cartridge box....”) and he chastised the federal government for failing to protect the former slaves in the wake of the Slaughter House Cases, Cruikshank, and the Civil Rights Cases. “Men talk of the Negro problem,” he said. “There is no Negro problem. The problem is whether the American people have honesty enough, loyalty enough, honor enough, patriotism enough to live up to their own Constitution.”

Douglass died in 1895, a year before Plessy v. Ferguson.

Of the currently available biographies of Douglass, the best is probably Benjamin Quarles, Frederick Douglass (New York: Da Capo, 1997) (1948). More recent is William McFeely, Frederick Douglass (1992). Unfortunately, McFeely’s analysis is at times strangely psychoanalytical, rising to absurdity when McFeely interprets Douglass’ famous struggle with the slave-breaker Covey as a homoerotic encounter—something which surely would have startled, if not infuriated, Douglass himself. Moreover, McFeely’s Marxist perspective leads him to questionable conclusions and unfair characterizations of Douglass’ thought. It marks a sharp contrast with Henry B. Mayer’s biography of William Lloyd Garrison, All on Fire (2000). Although Mayer views his subject from a leftist perspective as well, he acknowledges that Garrison did not share that opinion, and moves on.

Douglass’ speeches are available in a single volume collection edited by Philip Foner and Yuval Taylor. Unfortunately, the book does not contain the original italics and emphases, contains spelling errors on practically every page, and, being edited by the notorious socialist Foner, leaves out interesting writings such as Douglass’ denunciation of labor unions.

The only book I know of which actually studies Douglass’ political philosophy is The Mind of Frederick Douglass by Waldo Martin. Unfortunately, Martin’s critiques of Douglass refuse to take seriously Douglass’ defense of the free market; and makes him out to be an accomodationist, in the Booker T. Washington mold. This is both inaccurate and anachronistic. Indeed, it’s offensive. In one startling passage, Martin writes that Douglass urged blacks to “bec[o]me like whites.” On the contrary, Douglass never in his life did any such thing. In fact, he was mortified by the tendency of blacks to do so—for instance, when he noted that “[o]ur women powder their faces and buy the hair of the white race to make themselves more acceptable or less objectionable to the white race.” What Douglass did urge was a program of literacy, hard work, responsibility, personal integrity, self-improvement, dignity, respect for others, and pride in one’s accomplishments. If Martin regards these qualities as “white,” that is more revealing of Martin’s outlook than that of Douglass, who all his life took seriously the proposition that “all men are created equal.” “I have aimed to assure [black Americans],” he wrote,

that knowledge can be obtained under difficulties; that poverty may give place to competency; that obscurity is not an absolute bar to distinction, and that a way is open to welfare and happiness to all who will resolutely and wisely pursue that way; that neither slavery, stripes, imprisonment, or proscription need extinguish self-respect, crush manly ambition, or paralyze effort; that no power outside himself can prevent a man from sustaining an honorable character and a useful relation to his day and generation; that neither institutions nor friends can make a race to stand unless it has strength in its own legs; that there is no power in the world which can be relied upon to help the weak against the strong—the simple against the wise; that races, like individuals, must stand or fall by their own merits; that all the prayers of Christendom cannot stop the force of a single bullet, divest arsenic of its poison, or suspend any law of nature.

The Library of America has a very pretty collection of Douglass’ autobiographies, and it contains a few of his speeches (which Douglass published as appendices to My Bondage And My Freedom and the Life & Times), but they are not the complete speeches. For instance, this volume contains only about half of Douglass’ greatest speech, “What To The Slave Is The Fourth of July?” You can, however, read the whole thing here.

If you’re new to Douglass, then, I recommend starting with the Narrative. It’s short, and very readable. Then get the Foner and Taylor collection and try to overlook its flaws.

Previous Libertarian Bookworm entries are here.

Repent!: You know, Dr. Masugi said it would be this way. He told us that “legitimating” gay marriage would render heterosexual marriages “meaningless,” and was “the equivalent of destroying constitutional government.” And you laughed at him. But now it’s happened. That’s right. Barbie and Ken are breaking up.

You see? A prophet is without honor in his own country.

Libertarianism pate: The Curmudgeonly Clerk asks, “is our view of animals so dim that they can be said to enjoy no rights?” Well, if he’s asking about natural rights libertarianism, the answer is, that’s correct. Animals do not have rights, because they do not have reasoning minds. (A colorable argument might be made that some animals have a degree of reason and ought to have rights. I would be amenable to such an argument if facts were forthcoming.)

The Clerk adds, “[i]s libertarianism’s view of governmental authority so cramped that a legislative finding of unnecessary cruelty to animals cannot constitute a valid basis of legislation?” That’s a good question. I suspect the answer is yes. (Thought I’d avoid the use of the pejorative “cramped” until it’s shown that this is necessarily a bad thing.) But many libertarians, including myself, think that government can provide certain public goods, legitimately. Animal cruelty laws may be public goods, as opposed to protections for individual rights. Although the legitimacy of such laws is questionable—and, I argued some months ago, would probably require compensation under the takings clause, strange as that sounds—they’re not necessarily rejected by libertarian theory.

Incidentally, note that, as a libertarian, I immediately resist the temptation to say that because I am bothered by the mistreatment of animals—which I certainly am—that it is therefore legitimate to ban it by law.

Claremont: I’ve been picking so much on the Claremont guys lately that I feel I should say something nice about them. The reason I attack them is that I think they’re the best conservative thinktank there is, and probably the best thinktank in California period. Despite my strong disagreements with some of his writings, I think Harry Jaffa’s work is excellent and important, and he has the rare distinction of having actually changed my mind on one of my major beliefs—a favor I hope to return someday. Edward Erler’s work on the Fourteenth Amendment is first rate. Thomas West’s book Vindicating The Founders, and many of his other writings, are really superb. Ken Masugi’s book The Supreme Court And American Constitutionalism is a great read, full of real insight. The Claremont Review of Books is routinely filled with solid thinking and great writing. And of course, there’s John Eastman, a superb litigator and a fine constitutional scholar. The thing I most appreciate about the Claremont folks is that they are seriously dedicated to blending theory and practice—to making ideas really matter. The writings of Locke and Jefferson and Tocqueville aren’t just nice-sounding rhetorical quotes to them, but are of real import to policy here and now because they say things that are always and everywhere true. That’s a view I certainly share. I criticize them as much as I do because I respect them very much. (You see how rarely I bother to criticize other groups, like the American Constitution Society, for instance.) As Nietzsche says, “he repays a teacher badly who remains only a student; and will you not pluck at my wreath?”

Gay marriage: Here is a couple—an 83 year-old woman and a 79-year-old woman. They have been together for 51 years. They exchanged wedding vows this morning in San Francisco. Now, under California law, this is probably not a legal marriage. And this is what we are supposed to fear. This is the horror that is gay marriage. This is the apocalyptic rumbling that signals the collapse of civilization. Ken Masugi would have us believe that “legitimating” this relationship “is the equivalent of destroying constitutional government”; that it “renders” your heterosexual marriages “meaningless”; that it is causing a “crisis” over crisis, “what it means to be...a human being.” Two little old ladies who have been together for half a century, who love each other, and have already demonstrated their commitment to each other’s happiness, who have never harmed another person in their lives—these are the people we are supposed to fear and loathe and deny the right to marry.

Update: Radley Balko beat me to it.

Morality versus justice: I was very impressed by Jonathan Wilde’s post at Catallarchy, following up on my debate with the Curmudgeonly Clerk and others regarding the degree to which morality influences libertarianism. In my latest post I argued that there is a difference between forcing people to do what we think is a moral thing to do—which libertarianism eschews—and preventing people from harming others—on which libertarianism is based. Wilde calls this distinction the difference between morality and justice. While I think the two cannot be wholly separated, I think that’s a very useful way of putting things.

Lincoln’s birthday: It’s Lincoln’s birthday, today. Of course, the paleoconservatives (including those who mistakenly believe they’re libertarians) hate Lincoln, and think the south had the right to secede and whatnot. So in honor of the day, why not check out my explanations of why they’re wrong.

I believe each individual is naturally entitled to do as he pleases with himself and the fruit of his labor, so far as it in no wise interferes with any other man’s rights.... We have besides these men—descended by blood from our ancestors—among us perhaps half our people who are not descendants at all of these men, they are men who have come from Europe—German, Irish, French and Scandinavian—men that have come from Europe themselves, or whose ancestors have come hither and settled here, finding themselves our equals in all things. If they look back through this history to trace their connection with [the American Revolution] by blood, they find they have none, they cannot carry themselves back into that glorious epoch and make themselves feel that they are part of us, but when they look through that old Declaration of Independence they find that those old men say that “We hold these truths to be self-evident, that all men are created equal,” and then they feel that that moral sentiment taught in that day evidences their relation to those men, that it is the father of all moral principle in them, and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh of the men who wrote that Declaration, (loud and long continued applause) and so they are. That is the electric cord in that Declaration that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world….

[T]his argument of [Stephen Douglas] is the same old serpent that says you work and I eat, you toil and I will enjoy the fruits of it. Turn it whatever way you will—whether it come from the mouth of a King, an excuse for enslaving the people of his country, or from the mouth of men of one race as a reason for enslaving the men of another race, it is all the same old serpent, and I hold if that course of argumentation that is made for the purpose of convincing the public mind that we should not care about this, should be granted, it does not stop with the negro. I should like to know if taking this old Declaration of Independence, which declares that all men are equal upon principle and making exceptions to it where will it stop. If one man says it does not mean a negro, why not another say it does not mean some other man? If that declaration is not the truth, let us get the Statute book, in which we find it and tear it out! Who is so bold as to do it! [Voices—”me” “no one,” &c.] If it is not true let us tear it out! [cries of “no, no,”] let us stick to it then, [cheers] let us stand firmly by it then….

I say in relation to the principle that all men are created equal, let it be as nearly reached as we can. If we cannot give freedom to every creature, let us do nothing that will impose slavery upon any other creature. [Applause.] Let us then turn this government back into the channel in which the framers of the Constitution originally placed it. Let us stand firmly by each other...let us discard all this quibbling about this man and the other man—this race and that race and the other race being inferior, and therefore they must be placed in an inferior position.... Let us discard all these things, and unite as one people throughout this land, until we shall once more stand up declaring that all men are created equal.

Debate at Chicago, July 10, 1858 in 2 Collected Works of Abraham Lincoln 484, 493 et seq. (R. Basler ed. 1953).

Speaking of France...: I find this an extremely effective protest tactic. I think libertarians need to use it, too. I can see it now; Atlantic City tries to condemn some little old lady’s house to give to Donald Trump, and there’s me, Eugene Volokh, and Will Baude out there in our undies waving protest signs....

Hm. Maybe not.

This weekend: I’ll be going out of town this weekend; I’ll be speaking at Chapman Law School at lunchtime on Monday, about how to get a job in public interest law. So blogging will probably be light.

Fun opinions: Prof. Vu pointed out an amusing court case below. I posted on some other amusing cases here, here, here, and here.

Fame!: Thanks to The Countertop Chronicles for the permalink.

They probably won’t have kids: This story just goes to show you that the French don’t think that procreation is the purpose of marriage. Then again, I doubt that what the French think will be persuasive to many Americans, least of all the ones who believe that procreation is the main goal of marriage.

Charity, the libertarian movement’s best friend: A friend of mine tells me he has just become a little bit more libertarian. His organization agreed to work with a charity to help renovate the house of a disabled, low-income couple. The way my friend describes it, the house was in a middle-class neighborhood and the couple were “low-income” only because the couple were retired and living on a pension. Furthermore, the husband’s disability was that he hobbled somewhat and needed the help of a cane to get around. The wife’s disability seemed to be that she was unable throw away anything, and other than this, seemed perfectly healthy. For the better part of day, my friend and another 30 or so volunteers “excavated” (i.e., threw away piles of junk strewn about the house while the wife exclaimed that said items were precious mementoes; one such precious “memento” consisted of a pile of expired grocery coupons). After throwing away all the junk, the volunteers cleaned the house, which apparently had not been vacuumed in many, many years (one volunteer noted a hairball the size of a basketball and rat droppings all over the carpet). They finished the day by repainting the inside and outside of the house. The couple’s participation was limited to watching the volunteers and at one point, the wife wandered off to talk to the neighbors and the husband was found asleep on a chair in the backyard. At the end of the day, the wife did not thank the volunteers, although to be fair, the husband did. For days now, my friend, who describes himself as a “big-government Democrat,” has been fuming about how people should take personal responsibility for their lives and their actions. I’ve already sent a check to this particular charity . . .

Laugh out loud funny: I found this opinion a couple of years ago and it's been posted on other blogs, but I just love it and want to make others learn about it. I tell my students to read this opinion when they feel that they can’t take any more of law school. It should be enjoyable to non-lawyers, as well, although lawyers will get a particular kick since they will discern a “slight” difference between the average opinion and this one. By the way, this opinion is real and was actually published.

More on art and sex: Responding to Mr. Feder’s comments below, a Mr. Richard Feder, of Fort Lee, New Jersey, writes,

Could people feel comfortable observing something that is so intensely personal, and certainly not meant for an audience? I remember a movie sex scene that just involved the actors, no ‘wakka wakka’ music and the like. It was a little uncomfortable to watch, I felt like I was intruding. Perhaps we feel okay watching the contrived sex scenes because we know it’s not real? I think it would be worse to film an actual love scene with depth and soul and then package it for the multiplex. Or maybe movies don’t involve actual love scenes because, unless you’re one of the people involved, it would look boring? I’m sure it’s easier to show hormonal urges than it is to emote deeper passion. So we get movies with furtive coupling and people hanging from the chandeliers because it’s easier to ‘act’ those kinds of scenes? Just some thoughts.

Well, Mr. Feder, I think it would be extraordinarily difficult to act such a scene convincingly. (Which reminds me of a story by my favorite author, John Varley—“Blue Champagne,” a science fiction story published in the book of the same title, in which the main character attempts to record the emotion of loving sex.) For one thing, when two people are in love, the physical aspects are less important; but of course, film cannot capture what goes on in a person’s head; not even narration can compensate for the fact that movies can only show surfaces.

But were such a scene filmed convincingly, I think it would feel like intruding; as I said, it would be like bringing the thing into the room with you, instead of having it comfortably framed by corny music and porn-style “dialogue.” As Ayn Rand puts it, sex “is an act that forces [a person] to stand naked in spirit as well as in body,” which is a degree of intimacy that would take immense courage and talent to portray in either sculpture or film.

Literature, however—that can transport you into the mind of the character, and I think that’s why the few examples of artistic depictions of loving sex that I could think of are all literary. My very favorite is John Milton’s depiction of the prelapsarian love in Paradise Lost. The passage is my very favorite literary description of love; kind of funny, since people tend to think of Milton as a Puritan. It’s a little long, but since it’s Valentine’s Weekend, I’ll share it here. Adam is explaining to the archangel Raphael how he felt when Eve was created. He describes God taking the rib from his side:

The Rib he formd and fashond with his hands;
Under his forming hands a Creature grew,
Manlike, but different sex, so lovly faire,
That what seemd fair in all the World, seemd now
Mean, or in her summ’d up, in her containd
And in her looks, which from that time infus’d
Sweetness into my heart, unfelt before,
And into all things from her Aire inspir’d
The spirit of love and amorous delight.
Shee disappeerd, and left me dark, I wak’d
To find her, or for ever to deplore
Her loss, and other pleasures all abjure:
When out of hope, behold her, not farr off,
Such as I saw her in my dream, adornd
With what all Earth or Heaven could bestow
To make her amiable: On she came,
Led by her Heav’nly Maker, though unseen,
And guided by his voice, nor uninformd
Of nuptial Sanctitie and marriage Rites:
Grace was in all her steps, Heav’n in her Eye,
In every gesture dignitie and love….
[T]hough divinely brought,
Yet Innocence and Virgin Modestie,
Her vertue and the conscience of her worth,
That would be woo’d, and not unsought be won,
Not obvious, not obtrusive, but retir’d,
The more desirable, or to say all,
Nature her self, though pure of sinful thought,
Wrought in her so, that seeing me, she turn’d;
I follow’d her, she what was Honour knew,
And with obsequious Majestie approv’d
My pleaded reason. To the Nuptial Bowre
I led her blushing like the Morn: all Heav’n,
And happie Constellations on that houre
Shed thir selectest influence; the Earth
Gave sign of gratulation, and each Hill;
Joyous the Birds; fresh Gales and gentle Aires
Whisper’d it to the Woods, and from thir wings
Flung Rose, flung Odours from the spicie Shrub,
Disporting, till the amorous Bird of Night
Sung Spousal, and bid haste the Eevning Starr
On his Hill top, to light the bridal Lamp….
[W]hen I approach
Her loveliness, so absolute she seems
And in her self compleat, so well to know
Her own, that what she wills to do or say,
Seems wisest, vertuousest, discreetest, best;
All higher knowledge in her presence falls
Degraded, Wisdom in discourse with her
Looses discount’nanc’t, and like folly shewes;
Authority and Reason on her waite,
As one intended first, not after made
Occasionally; and to consummate all,
Greatness of mind and nobleness thir seat
Build in her loveliest, and create an awe
About her, as a guard Angelic plac’t.

You know, Mr. Feder, I felt that way about a woman once. Life is never the same after that.

Update: Of course, even Milton doesn’t actually describe the sex. Beautiful as this passage is, even Milton draws the curtain. Perhaps loving sex, like music, simply cannot be translated into any other language. Is sex a form of art? I suspect so.

More Claremont marriage absurdity: The hysteria gets worse. Not only is gay marriage like slavery and the Civil War, but it indicates a “crisis...involving what it means to be an American and therefore what it means to be a human being.” The sky isn’t just falling. It’s plummeting, dammit! It’s hurtling toward us and we’re all going to be squashed out of our humanity!

Anyway, two things:

First, Dr. Masugi writes asks whether “the Declaration of Independence’s requirement that legitimate govt. secure certain natural rights” includes marriage “among” the “other” natural rights the document mentions. The problem is, marriage is not a natural right. No government license is a natural right. It is a civil right, and not just because Massachusetts law defines it as such (Goodridge v. Department of Public Health, 440 Mass. 309, 325-26 (2003)). It is a civil right because you have no right to a marriage in a state of nature. You have the right to private, adult, consensual sexual activity, but marriage, like voting, is something conferred by political society as a means of protecting natural rights and ensuring the proper order of society; it is a state benefit, and hence a civil right.

What’s funny about this fact is that this actually helps the conservative argument. If marriage is a natural right, the answer is no, there is absolutely no legitimate grounds for denying that to homosexuals, just as there are no legitimate grounds for denying any other natural right, like life, liberty, or property to homosexuals. If, however, it is a civil right, then the argument is easier for conservatives, because civil rights can be denied to people on much broader grounds; we can deny felons and minors the right to vote—we can condition citizenship (the ultimate civil right) on certain grounds. As long as these grounds satisfy the equal protection clause (which is, of course, the whole question), that’s okay. But you never have the right to deny a natural right to anyone. There is no natural right, however, to have the government recognize your marriage, any more than there is a natural right to vote for candidates.

What to say about Dr. Masugi’s histrionic claims that recognizing gay marriage “violate[s] a person’s natural right to marriage (by rendering it meaningless, equivalent to a same-sex relationship)” and that “[l]egitimating such relationships as ‘marriage’ is the equivalent of destroying constitutional government”? All I can say is, if this is the ear-splitting tone the conservatives want to reach in this debate, then our side has practically won already. Give us a reason, guys. Don’t give us over-the-top, unsubstantiated claims about the collapse of civilization.

Second, as if to prove just how out of the realms of reasonable discussion Dr. Masugi is, he concludes that the answer to this problem is to bully the courts into obeying the will of the people through New Deal-style tactics: “The offending members of the Court need to be removed from their shelter and deference they are customarily granted. The hitherto unconstitutional New Deal suddenly became constitutional under such pressures—without a single change of personnel. An aggressive Congress got its attention.” In other words, we ought to pack the court! We ought to intimidate the judges them into doing what we say, rather than explaining and debating! And this from supposed defenders of the rule of law! I think Masugi’s statement is proof of the fact that their side simply has no reasonable argument. All they can do is bully their way; to try to get the courts to simply ignore the constitution, as the other side did in 1937.

I am reminded of the debate over evolution between Bishop Wilberforce and Thomas Huxley, when Wilberforce demanded to know whether Huxley was descended from an ape on his mother’s side or his father’s side. Huxley said to a man sitting next to him, “God has delivered him into my hands.” He rose and replied that he would rather be descended from the noble ape than from a man who introduces ridicule and silliness into a serious scientific proceeding. I would prefer to be governed by all the gay men in the world, busy doing all sorts of obscene sinfulness, than by a man who shrieks that recognizing the right of homosexuals to marry will nullify heterosexual marriages, destroy constitutional government, and violate the Declaration of Independence—or who suggests that the “remedy” for this apocalyptic forecast is to bully the Court into obeying the majority, “Switch In Time” style! Dr. Masugi ought to be seriously ashamed of himself.

I hereby declare myself the winner of this debate.

Fame!: Thanks to Prof. Volokh for the link. Incidentally, he is certainly correct that “self-righteousness...isn’t going to be terribly persuasive to those Americans on the other side, or to those who are in the middle,” and that just calling people bigots is pretty useless as a debate tactic. But, again, I think he’s wrong that bigotry is to be defined by the subjective feelings of those who are alleged to be bigots. Volokh writes that “Bush doesn’t think of himself as a bigot; he knows that most of his countrymen agree with him, and don’t think that a heterosexual-marriage-only policy is bigoted; it’s highly unlikely that he’ll think he’s on the wrong side of history.” But this does not distinguish Bush from any of those whom we would uncontroversially call bigots. Probably the same things could have been said of those who defended the anti-miscegenation laws struck down in Loving v. Virginia. A bigot, I think, is a person who has disgust for people not on their personal merits, but because of some characteristic which is beyond their control, and who rejects arguments for sympathy unthinkingly. This last is the most important, since there can be non-bigoted reasons for rejecting sympathy. A bigot is necessarily a dogmatist. He refuses to think beyond a particular signpost, on principle. And that is rightly applied to people who believe that marriage can only be between a man and a woman because God, or our ancestors, said so. (Like that great bumpersticker: “God said it, I believe it, that settles it.” The very definition of bigotry!) Sure, Bush may not himself be a bigot, but only defending bigots for political reasons, or for good policy reasons that he just hasn’t yet disclosed. But drawing the line at the word “sacred” and refusing to go any farther, sure sounds bigoted to me.

But, again, it really doesn’t advance the argument or make much difference to the other side.

The olden days: I’ve lately been looking over my collection of antique books. Among them is William Cobbett’s Advice to Young Men and (Incidentally) to Young Women, in the Middle and Higher Ranks of Life—a collection of letters of advice “to a young man,” “to a lover,” “to a father,” and so on. It was published in the 1830s, and apparently was quite popular. Here’s a passage from his advice on how to choose a wife:

SOBRIETY: By sobriety I do not mean merely an absence of drinking to the state of intoxication; for if that be hateful in a man, what must it be in a woman! There is a Latin proverb, which says, that wine, that is to say, intoxication, brings forth truth. Whatever it may do in this way, in men, in women it is sure, unless prevented by age, or by salutary ugliness, to produce a moderate, and a very moderate, portion of chastity. There was never a drunken woman, a woman who loved strong drink, who was chaste, if the opportunity of being the contrary presented itself to her. There are cases where health requires wine...but...young unmarried women can seldom stand in need of these stimulants; and, at any rate, only in cases of well known, definite ailments. Wine! ”Only a glass or two of wine at dinner or so”! As soon as have married a girl whom I thought liable to be persuaded to drink, habitually, ”Only a glass or two of wine at dinner or so;” as soon as have married such a girl, I would have taken a strumpet from the streets. And it has not required age to give me this way of thinking: it has always been rooted in my mind from the moment I began to think the girls prettier than posts. There are few things so disgusting as a guzzling woman. A gormandizing one is bad enough; but, one who tips off the liquor with an appetite, and exclaims ”good! good!” by a smack of her lips, is fit for nothing but a brothel.... But, by the word SOBRIETY in a young woman, I mean a great deal more.... I mean sobriety of conduct. The word sober, and its derivatives, do not confine themselves to matters of drink: they express steadiness, seriousness, carefulness, scrupulous propriety of conduct.... [I]f I could not have found a young woman (and I am sure I never should have married an old one) who I was not sure possessed all the qualities expressed by the word sobriety, I should have remained a bachelor to the end of [my] life....

Id. at §§. 91-92.

Please Mr. Censor, protect us from ourselves: FCC Chairman Michael Powell recently testified to federal legislators that the Janet Jackson incident at the Superbowl Half-Time show was a “new low in prime-time television.” Apparently, Mr. Powell doesn’t watch much prime-time television. He and the public are outraged by Janet Jackson’s exposed breast because of the effect seeing it might have had on television’s younger viewers. It’s interesting that no one has complained about the fact that television today teaches kids that it’s a good idea to marry someone without ever seeing them; that it’s a good idea to put yourself into situations where you will be tempted to cheat on your significant other; that looks are everything; that how you dress is everything; that it’s fun to eat insects; that it’s fun to live with strange people; that you can become famous by harshly criticizing people; that you can become rich by betraying other people; that no matter how ignorant or lazy you are, you can live the good life by marrying a rich old guy and waiting until he dies; that no matter how ignorant or lazy you are, you can live the good life if you look pretty (and are a mediocre singer); that no matter how ignorant or lazy you are, you can live the good life if your parents are rich; and that no matter how ignorant or lazy you are, you can live the good life if you’re a washed up celebrity or related to one. No need to worry, however. The television channel that teaches kids everywhere what they need to know, aka MTV, has a television show entitled “Fraternity Life.” I’m sure lots of valuable life lessons can be gleaned from this show. Of course, the point isn't that I or anyone else is culturally superior (I'm clearly not, given my knowledge of the above television shows). Everyone has his or her own ideas of what content "hurts" children. The real problem comes when we try to get the government to enforce our views on censorship.

Star registry: This isn’t a huge deal, and I’m sure that your average blogger already understands this, but I am increasingly bothered by these ads for the “name a star after someone” thing. The commercials give the impression that somehow you can create the official name for a star—a name by which astronomers will refer to the star in the future—which isn’t true. Astronomers use standard international catalogues like the Messier catalogue.* But the “Star Registry” folks create the impression that your name will be used in the future, by saying that your name—for which you pay $54 “plus shipping and handling”—will be “registered with the U.S. Copyright Office.” By that they mean they put all the names in a book and go down and have the book copyrighted. That’s it. Any one of us can make our own star catalogue, and name every star in the sky for free, if we want, and go have our catalogues copyrighted, and they will have exactly the same effect on posterity. Now, if you just want the sentiment of naming a star after someone, that’s fine, but surely there are better returns on the sentiment-investment than to pay fifty-four dollars for absolutely nothing. If you want to give money for something sentimental that will really matter, donate to City of Hope, for godsake!—(or to Freespace’s two official charities, Montpelier and the National Center for Science Education.)

*-Hence the M in things like M38 and whatnot.

Exploiters and the exploited: Jonathan Wilde patiently responds to a stupid charge about capitalism.

I love Australians!: “Oh this little old thing? I only wear it when I don’t care what I look like.”

Nanna nanna nanna nanna: Getting back to the heart of Batman.

Abjuring our native victuals: Plainsman says, in a bizarre post which finds that the Decline of the West has left traces on his dinner plate, “When, in a given art, secular modernity goes out of control in search of novelty, sooner or later it snaps the tether that ties the work to the basic norm—embodied man.” I love this statement, because as I see it, it reaches to the fundamental difference between liberals, including libertarians, and conservatives. Confronted with a statement like that—and it doesn’t just apply to art, but to any activity—the conservative says “Therefore, we should prohibit the search for novelty.” The liberal says “Therefore, we should subsidize such novelty with money stolen from those who are not engaged in such experiments.” The libertarian says “Let them experiment if they wish—only such experimentation can find the answers for the challenges we face; but those who prefer to stay ‘tied’ to the ‘basic norm’ ought to be free to make that choice as well.”

Oh, the phrase “abjured his native victuals” is from Patrick Henry, who claimed that Thomas Jefferson had become so “Frenchified” that he had done just that.

Mine!: This really bothers me.

Another dead blog: Sorry to see Rule of Reason go. I enjoyed it. (Hmm…“charges made by others that would damage the organization…” Sounds like another schism at the Judean People’s Front or something.)

Valentines: The only good thing about this week.

Art and sex: In answer to my question about where there are any good artistic depictions of genuinely loving sex, a Mr. Richard Feder, of Fort Lee, New Jersey, writes, “I don’t have an example for you, but I should think about it further because I’d like to. I think the reason there are not more such depictions may in part be because it is so rare, but also because by and large the concept is scorned by those attracted to the arts and feared by the public.

“Today it seems everyone believes that:

“1) romantic love is a sham, which is believed by the legatees of Marx (they still think it’s bourgeois, even if the term now sounds archaic) as well as both the Christians and the subjectivists for their respective reasons,

“2) you’ve betrayed yourself and have no interest in seeing a moral, sexual depiction of a romantic love that’s integrated mind and body. ‘He takes a dressed up lie and calls it his wife.’ (Thus Spake Zarathustra). It probably makes evenings watching TV more palatable if you don't have to be reminded that you’re a fool and undermined the most unique and important capacity for fulfillment you have.”

Well, Mr. Feder, this is probably true of many people, but not most, I think. Probably the reason there are so few depictions of loving sex is that stories are usually about conflict, and troubles that people overcome, and danger. So a movie about adultery, or forbidden love, or such things, is just easier to devise than a story that features happiness. But I think you’ve got something about fear: it hits too close to home for people. You know how the Parisian art world was scandalized by Madame X’s fallen strap—even though she was featured on the same wall with countless nudes by Bouguereau and the rest? Or how Manet’s Olympia was such a shocker, even though nude Venuses have always been around? It’s because it’s easier to take these things when they’re placed in a frame than when they’re set next to you in the room. It’s enticing to watch a sex scene in a movie. But when it’s love, and the sort of love that, deep down, is what you most want in life—could people really bear to see it?

Definition of bigotry: I disagree with Prof. Volokh. He says that a federal no-gay-marriage amendment would not represent bigotry because “Bush and other anti-gay-marriage forces presumably see their opposition to gay marriage as quite well-founded and morally proper….” But surely the definition of bigotry can’t depend on the subjective notions of the alleged bigot himself! Those who defended Virginia’s anti-miscegenation laws in the 1960s surely also “saw their opposition to interracial marriage as quite well-founded and morally proper,” but we can hardly deny that their reasons were properly describable as bigotry. It’s true that the word is an epithet that people tend to throw at anyone who disagrees with the speaker, but this definition says “obstinate and unreasoning attachment of one’s own belief and opinions, with narrow-minded intolerance of beliefs opposed to them.” If the conservatives who oppose gay marriage do so on the basis of dogmatic (i.e., “unreasoning”) arguments, and refuse to answer the explanations given in the Goodridge case (which, as I’ve shown, at least some of them do), then surely that’s bigotry, if anything is. Otherwise, the word would be meaningless.

I don’t mean that all opponents of gay marriage—or the President himself—are necessarily bigots. But at least some of them are, and at least some of those “see their opposition to gay marriage as quite well-founded and morally proper,” because all bigots do.

Kitcher: Here’s an interview with Philip Kitcher. His book on creationism (Abusing Science) was fantastic. His book on the philosophical implications of genetic research (The Lives to Come) was terrible, and plays right into the hands of everything the conservatives (wrongly) say about genetic research. Anyway, thought you might find it interesting.

Fame!: My article in the Detroit Free Press.

Which party?: Looks like Dan Burton is becoming a Republican. I don’t like it, so let’s ban it.

No union with pirates!: You know, this kind of nonsense—which I found via the aptly named Libertarian Jackass—really pisses me off, as of course it would, and it proves once again just how harmful the paleocons at the Mises Institute are to the libertarian movement. Prof. Murphy agrees, of course, with the Institute for Justice’s position that licensing florists in Louisiana is oppressive and stupid, but he then attacks IJ because real libertarians should not “fil[e] a lawsuit within the very same government apparatus that is so grossly hypocritical in other areas.” At the same time, Murphy argues exactly the opposite position—if IJ “really believe[s]…that, ‘One of our most basic freedoms as American citizens is the right to earn an honest living free from arbitrary or excessive government regulations’…the[y] should be filing lawsuits on behalf of all those who work or own a business.” IJ, you see, is “wasting millions of dollars defending would-be florists, African hairbraiders, taxicab drivers, etc.” What, precisely they should be doing with those dollars instead, Murphy does not say. Perhaps preparing a violent revolution or something.

Murphy is not a lawyer, and obviously knows absolutely nothing about how the law works. Had he lived in 1872, I can see him saying “Oh, who cares about butchers in Louisiana? We should be focusing on the real problems!” But aside from his ignorance, it irritates the living hell out of me to see academic critics, hiding in their safe little Michigan colleges, shouting at the few people who actually have the courage and ability to actually strike a blow for freedom. So IJ put JoAnne Cornwell back to work as a hairbraider. Even if that were all that they did, that would be enough. Even if Craigmiles v. Giles meant nothing more than to put Nathaniel Craigmiles back to work selling coffins, it would be more than a bunch of moral-purist economics professors have ever done for freedom. Yeah, yeah, teaching the youth, the leaders of tomorrow, blah blah blah. A pale answer.

One might reply by explaining the power that a legal precedent has; that Craigmiles is the first case in seventy years to use the Fourteenth Amendment to protect the right to earn a living, and that the decades-long process of building such precedent may truly change the way every American lives his life. But even precedent won’t answer Murphy, because his other evidence of IJ’s insidious influence is the fact that they won Zelman! You see, even though IJ has always acknowledged that school vouchers are not a panacea, and that they indeed bring serious problems, but that they are an improvement over the current system—no, instead, to keep ourselves morally clean, what we ought to do is hold out for the total abolition of public education. But, of course, not to fight for that through “piecemeal lawsuits.” No, I guess what we should do is teach economics classes and write internet screeds about how poor children have no right to a state-provided education. Then Murphy would have his moral purity, while the children in the inner city sit and wait—wait for the big revolution that will magically end public education at a single stroke, and set them free. But we all know that if they do wait—they wait forever.

In the 1850s, my hero, Frederick Douglass, split with his friend, the abolitionist William Lloyd Garrison. Garrison had denounced the Constitution as a “pact with hell,” because of its compromises with slavery. He burned a copy of the Constitution at a July 4th party, and demanded that the north should secede from the south, to cleanse itself of the sin of slavery. Although Douglass had initially agreed with this, he later changed his mind. “If a man were on board of a pirate ship,” Douglass argued, “and in company with others had robbed and plundered, his whole duty would not be performed simply by taking out the longboat and singing out ‘No union with pirates.’ His duty would be to restore the stolen property.” Anti-Constitution abolitionists were putting their personal moral purity above the eradication of slavery. The movement “started to free the slave. It ends by leaving the slave to free himself.” The Garrisonians, he said, “pil[e] up, between the slave and his freedom, the huge work of the abolition of the Government, as an indispensable condition to emancipation.” Murphy is demanding precisely the same sort of worthless moral purity. Nothing short of total revolution—not even “piecemeal” steps toward total revolution—will suffice. It’s just selling out.

No, of course litigation will not save the world. Brown v. Board of Education did not end racism, or even segregation. Racism is still around, and segregation was ended only by decades of activism, by courts, by legislatures, by average people, by great leaders like Martin Luther King. I’m sure even some economics professor did something to help end segregation somewhere. But without Brown—without heroes like Thurgood Marshall—where would we be today? And what real work for liberty was done by people (and there were some!) who sat back and shouted at Marshall, “Well, you shouldn’t focus only schools, you know. You should focus on bus stations and restaurants and everything else, all at once, and you shouldn’t do it piecemeal. So I’m not going to help you.” I say, don’t let the perfect be the enemy of the good.

Transcripts: Prof. Volokh’s post about the dangers of transcripts reminds me of this interview with Eric Clapton, in which Clapton repeatedly seems to refer to the great blues musician “John Mayo.” Of course, for those without Mr. Clapton’s English accent, that’s John Mayall.

The Big Picture: Greetings all! Now that Tim Sandefur has foolishly allowed me to post my thoughts here, let me start with one of my favorite rants -- against fixating on technical legal arguments to an extent that one fails to ask whether the end result makes sense. A recent episode provides a good example – it was reported that schools in Nashville would no longer post honor rolls or other indicators of academic achievement. One argument -- that honor rolls stigmatize students not singled out for recognition -- is obviously ridiculous. The other contention -- that certain state privacy laws prohibited the release of academic information without permission -- is, at first glance, compelling. Of course, the result is silly. Even the Nashville schools are aware that that position does not pass the laugh test, but have bowed to extreme legalism by sending out permission forms for parents to sign prior to posting students’ names on the honor roll. Of course, this won’t solve the problem because it’s just a matter of time before someone realizes that by not posting a student’s name on the honor roll, the school is also revealing academic information about that student. What will the school do then? Send permission slips home to ask for the parents’ consent not to post their child’s name on the honor roll? What if the parents refuse to consent?

It might seem strange that a law professor should argue against focusing on legal details, but once you’ve read hundreds of final examination answers the conclusions of which are bereft of any common sense, you’ll understand why this is my pet peeve. I’m not advocating that students, or anyone else for that matter, let their intuitions about what is “right” decide their opinions; only that they review their analysis if the conclusions of their analysis and their intuitions are not consistent. The Nashville schools could learn a little something about that.

California’s Political System Can Work . . . Sometimes: On an unrelated note, there are some situations in which California’s much-maligned initiative process makes sense. California’s Business & Professions Code Section 17200, aka California’s Unfair Competition Law (“UCL”) was the subject of much bad press last year. Nonetheless, no major changes have been in the law for over two decades, even this is not the first time abuse of the law has received bad press. The reason is that trial lawyers have the California legislature in their pockets on this one – they had the clout to kill reform bills authored by moderate Democrats like California Assemblyman Lou Correa and even put forward their own reform bills which expanded rather than narrowed the scope of the UCL. Now the none-too-subtly-named Coalition Against Shakedown Lawsuits has started a petition drive that would put several reforms of the UCL on the ballot for voters to decide upon. I think the initiative process in California has been much abused and has lead instances of bad governance, but this is one situation in which shows why it was instituted in the first place.

Lovely Sarah: Man. Look at those eyes.

What you missed over the weekend: Libertarian Bookworm featured my favorite biography of Thomas Jefferson. Plus, two posts on libertarianism’s interaction with morality; another response to Tom Kranawitter’s posts on gay marriage; debate techniques of Eugene Volokh and Ben Franklin; and a music recommendation.

Never give up?: Remarkable story, thanks to annika.

Sex and art: Saw this article on Arts And Letters Daily, and it makes a good point:

If contemporary folklore is to be believed, what most of us seek more than anything is a regular, passionate sexual relationship with one person whom we love in a number of other ways: Eros and Agape happily unified for convenience and, it would seem, everlasting contentment. Yet art deals with this unexceptional desire in a diffident, almost contemptuous way. In cinema, for example, I struggle to think of more than one instance in which sex between a married couple is depicted with true eroticism, that being the love-making scene between Donald Sutherland and Julie Christie in Nicolas Roeg’s Don’t Look Now…. Otherwise, it is all basic instincts and fatal attractions, knickerless leg crossings and boiled rabbits.…. Helmut Newton…and his like [have] ambushed the artistic depiction of sexuality. We are surrounded by images of dirty and dangerous sex, more often than not to sell us complementary consumer items, but sometimes just to sell us the idea of dirty and dangerous sex. Well, that's fine and dandy, but then so is the other type.

Where are the artistic depictions of loving, emotionally satisfying sex? Is it just too intense an emotion to depict in art? Rodin’s Kiss is pretty close. I welcome other examples.

More on Marriage: Tom Krannawitter says that the debate over same-sex marriage “is similar” to the pre-Civil War crisis over slavery, because “the basic precepts of morality [are being] denied by many Americans.” Yet, despite his promise to do so, Krannawitter has not provided us with those precepts, or at least, has not defended his assertion of those precepts (i.e., that the sine qua non of marriage is procreation) against the answers that were given by the Massachusetts Supreme Judicial Court.

What I wonder is, if “the basic moral foundations of marriage and family [are] denied, scorned, and ridiculed by our intellectual and political classes, no less than our popular culture,” then why do homosexuals want to get married so badly? It’s not cheap to take a case to the State Supreme Court. It’s not easy to stand up in the face of overwhelming ridicule, to be condemned by the President of the United States, and likened to defenders of slavery, and whatnot. Yet we’re to believe that the reason homosexuals put up with this, and want to marry, is because they “deny, scorn, and ridicule” the institution of marriage? What sense does this make? As the Goodridge Court itself said,

Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries. But it does not disturb the fundamental value of marriage in our society.

Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished. They do not attack the binary nature of marriage, the consanguinity provisions, or any of the other gate-keeping provisions of the marriage licensing law. Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race. If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage’s solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.

Goodridge v. Department of Public Health, 440 Mass. 309, 337 (2003).

Indeed, if anyone is undermining the institution of marriage, it is those who think that it is not about love, but that it exists solely to breed new children for the state; Pharisees, who do not believe that marriage, as John Milton said, is about “apt and cheerfull conversation,” designed “to comfort and refresh him against the evil of solitary life...[with] the purpose of generation...but a secondary end in dignity, though not in necessity.... [A] meet and happy conversation is the chiefest and the noblest end of mariage: for we find here no expression so necessarily implying carnall knowledge, as this prevention of lonelines to the mind and spirit of man.... [It is] the solitarines of man, which God had namely and principally orderd to prevent by mariage....” Krannawitter doesn’t think marriage is about meet and happy conversation, or that it is about (in the Massachusetts Supreme Judicial Court’s description) “[t]he exclusive commitment of two individuals to each other...love and mutual support...an abundance of legal, financial, and social benefits...[and] weighty legal, financial, and social obligations.” Goodridge, 440 Mass. at 312. Instead, Krannawitter believes that marriage exists so that the state can regulate the family and ensure that the next generation meets with his approval. Moreover, he thinks that marriage needs to be “saved” from people who think that if two men love one another and wish to pledge their lives to one another, they ought to be able to marry.

And who’s damaging the sanctity of marriage?

Recommendation: I’ve been listening all weekend to the soundtrack to Master And Commander, a movie I really liked. The soundtrack is extremely enjoyable, particularly the Bach cello piece performed by Yo-Yo Ma, and “La Musica Notturna Delle Strade Di Madrid, Op. 30, No. 6, ” by Luigi Boccherini, a piece I’d never heard before. I am not much of a fan of violin music, but I really love this, and strongly recommend it.

Reason(s): Chris Lawrence adds two comments on libertarianism: 1) “societal acceptance” is something that is relatively independent of legality, and 2) Reason was a far better arbiter of libertarian thought under Virginia Postrel’s editorship. First, I agree a thousand times over that Reason was better with her at the helm. (I don’t know about “arbiter of libertarian thought”; Reason doesn’t hold itself out as such. Liberty comes closer that, actually.)

I used to read Reason cover to cover every issue. Now, I glance at an article every other month. Reason is certainly the finest libertarian magazine, but the field is so small that that isn’t saying much. And I know that since it adopted it hideous new layout, the subscription lists have gone way up, but I consider that irrelevant: Reason is a shadow of its former self; only Ron Bailey’s articles come anywhere near the old standard.

On the first point, it’s true that a thing’s social acceptance is not tied to its legality, but they are probably complimentary to differing degrees based on the thing’s other qualities. In other words, some things would tend to be accepted socially much more quickly if they were legalized (say, marijuana) than others (say, arson). Some things are entirely socially acceptable even though they are illegal (a father allowing his 20-year-old son to have a beer, for instance). Other things are socially unacceptable though they are legal (alcoholism, or, in many communities, adultery).

But this is really neither here nor there with regard to the Clerk’s point. He’s saying that a libertarian’s moral views will influence his politics. There are two ways this can be interpreted. Either he’s saying that politics is inherently bound to morals, so that libertarianism is a moral philosophy because it defends the individual’s moral right to his freedom; or he’s saying that everyone has a weak spot where he’s willing to enforce his personal tastes through the state. I’ve replied that the first proposition is trivial (except that there are some libertarians who, I think, misunderstand what libertarianism is all about, and who really think that it entails agnosticism even toward oppression); and that the second proposition is simply not true. Even if it were true, it would only prove that particular libertarians are hypocrites.

Incidentally, I discussed some of this some months ago in my post “What Is Libertarianism?” Also, check out Tom G. Palmer, The Case of the Missing Premise: or, The Axiom That Wasn’t Categorical.

Clerk and libertarianism: The Clerk’s argument about libertarianism, I fear, just keeps getting worse. His argument is that libertarianism is incoherent because 1) all political theories inherently include attempts to force morality on other people, 2) libertarianism claims not to include such an attempt, 3) But Stephen Bainbridge who isn’t a libertarian, admits that he wants to force morality on other people, and Timothy Sandefur hates quack doctors, which proves that even libertarians are trying to force their moral views on others, 4) Therefore libertarianism is incoherent, Q.E.D.

His response to the fact that Prof. Bainbridge is not a libertarian, is that, well, nobody is a libertarian—“People may tend toward liberal inclinations, conservative instincts, or libertarian leanings, but almost none are ideologues”—but what exactly this means, or how, if true, it helps his analysis escapes me completely. If he denies that there are any libertarians, or any consistent (i.e., “ideological”) libertarians, how can he criticize libertarianism? This is like saying “Christianity is ridiculous because there are sinners.” Or rather, it’s like saying “the claim that critiques of Christianity are valid solely when they pertain to the beliefs of bona fide Christians strikes me as being problematic.” Please! If you’re going to criticize the philosophy, you must either attack the books or the people. Otherwise, yes, you’re attacking a straw man.

The Clerk says he’s not attacking a straw man because “the personal morality of libertarians, as opposed to libertarian principles, is bound to play some role in libertarian thought. The only real question is the extent that personal moral assessments (i.e., what Bainbridge labeled ‘the yuck factor’) shape and define libertarianism.”

Now this is a good solid claim that we can attack full force, and fortunately for us, it is wrong, so the attack is easy. Libertarianism—which is as coherent and internally consistent as any political doctrine is—is principally about resisting the temptation to do just that. Where conservatism puts a political premium on ensuring a stable and orderly society, and liberalism puts a political premium on enforced charity, libertarianism puts a premium on the capacity to separate our personal choices from law. One thing that probably all libertarians believe is that sins are not crimes. That statement represents our conviction that while personal preferences will shape and define our personal behavior, they ought not to permit us to shape and define other people’s personal behavior. I find homosexuality, alcoholism, and Yanni quite distasteful. I do not, however, believe that these views should play any role in my treatment of other people—although they emphatically should play a role in my personal actions and in my attempts to persuade other people. I detest quacks. But I must limit my attacks on them to my attempts to persuade people not to go to them. If even Richard Nixon has got soul, so even quacks have a right to be free. Libertarianism considers my defense of their freedom as virtuous.

Now, I say virtuous; the Clerk might say, “Aha! Then you are indeed putting morality into libertarian thought. You are saying that it is morally wrong to force people to do things against their will.” On that, the answer is yes. Can this be what the Clerk means when he says we all put morality into our politics? Maybe so. But that indicates a deeper confusion, I think. For one thing, there is a big difference between seeing it as the state’s job to interfere with behavior, and seeing it as the state’s job to prevent people from interfering with each other.

Whence comes the Clerk’s confusion? Well, unfortunately, he is right that there are some libertarians who believe that morality is a pretend game*—who refuse to take a moral position on things, or who believe that morality is just a bunch of talking, or “preferences.” I find these people highly embarrassing, and I have repeatedly attempted to distance myself from them, because their subjectivism would make them prone to the Clerk’s criticism. Libertarians of this stripe end up saying that if one man wishes to enslave another, no third man may be heard to object. I do indeed place a moral premium on individual liberty, and I believe that the state ought to enforce that value. But I hope this isn’t what the Clerk means by “enforcing morality,” because that would overlook the distinction between preventing interference and actually interfering; and this would mean overlooking the distinction between morality and politics. For libertarians, politics only becomes involved in there is harm to a nonconsenting other person. We believe that it is both immoral and a political matter when a person harms another.

That the Clerk would consider it a “discovery that moral disgust plays any role in shaping libertarian beliefs” simply proves that the Clerk knows too little about libertarianism, or has been reading the sorts of libertarians about whom I complain. Yes, politics without morality is indeed incoherent. But libertarianism—despite the misunderstandings of some who call themselves libertarians—is not morally neutral. It simply holds that each person has the moral right to own himself and the moral right to make choices about his personal behavior without the interference of others. There are those—Ludwig von Mises comes to mind—who “swear that what sets [libertarians] apart from conservatives and liberals is their absolute moral neutrality in matters of public policy.” These people are, however, in error, and our best scholars, from Virginia Postrel to Tom Palmer to Richard Epstein to Ayn Rand to John Locke to Thomas Jefferson to John Milton to Frederic Bastiat to Friedrich Hayek have said so (well…Hayek is a little wishy-washy on this one).

Libertarianism has been seriously harmed by those who believe that they have evolved beyond the need for morality, and that politics can only drive, but not navigate. In fact, libertarians have nothing to fear from moral philosophy, and cannot survive without seriously addressing moral philosophy. Those libertarians who have done so, whom I have named, have made consistent, coherent arguments about the moral rightness of liberty. In a nutshell, we have explained that it is immoral for a person to use the state to enforce his view of what people ought to do; that it is moral only for him to use the state to defend his own moral right to freedom. Self-defense is therefore the only morally right use of the state. That creates a moral distinction between sins and crimes, with the state concerned only with the latter. This, in turn, has unfortunately misled some, including some calling themselves libertarians, into believing that the free state is morally agnostic in all cases, or, worse, that the citizen of a free state ought himself to be morally agnostic. These are serious errors, the second even more serious than the first. Fortunately, these errors have been repeatedly corrected by libertarians themselves. I urge the Clerk to read these libertarians—especially to prefer them to those who admit that they are not libertarians!—before criticizing libertarianism in the future.

Incidentally, I find it oddly amusing how, as an Objectivist, I am alternatively called either a censorious, overly moralistic meanie, or a dionysiac crazy who just wants to have sex with dogs.

*-The phrase “pretend game” I get from Harry Browne, who told National Review in 1996 that morality was a “pretend game.” I challenged him about this at a Question and Answer session at my college a few months later, and he claimed to have been misquoted.