::Freespace::

Religion and our Founding—Buttressing the 1st Amendment with the 9th and 14th: In discussing Religion and the Constitution on this site, I have mainly focused on the Establishment Clause. Before my week blogging here is over, let me express some thoughts on the Free Exercise Clause as well. (Note—In order to interpret the Free Exercise Clause, I must also include the Establishment Clause as part of the analysis—so mind you, I am not confusing these two as some do. As I have thought through these issues, I conclude that the clauses’ meanings are inseparable—that the proper interpretation of one invariably affects the meaning of the other. This is because both ultimately are derived from the natural right of liberty of conscience. And both clauses needed to be included in our Constitution in order to secure this right.)

Some social conservatives have claimed that the Free Exercise Clause was intended to grant religious liberty to Christians only. And that the two religion clauses ought to be put together in the following manner: The Establishment Clause prohibited the federal government from establishing one dominant Christian sect, or passing laws that gave preference to one sect over another. And the Free Exercise Clause guaranteed that all Christian sects would be able to practice their religion on an equal footing. Further, if we were to look at how some states treated Catholics under their laws, we might rightly conclude that our Founders intended that only Protestants have these precious rights.

At least one very important present day public figure has more or less endorsed this historical view: Chief Justice Rehnquist. In his dissent in Wallace v. Jaffree, 472 U.S. 38 (1985), Rehnquist cites, among others, former Justice Story to support this proposition: "The real object of the [First] [A]mendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government.” pp. 104-105.

As Story’s comments indicate, there certainly were some back then that desired the religion clauses to operate exactly in this manner. However, two very important Founders—Madison and Jefferson—clearly desired differently. We can see their views on the proper role of government and religion in Virginia’s Bill for Establishing Religious Freedom, which Jefferson penned and Madison fought to pass.

Although the language of the Bill does claim that our right to religious freedom ultimately was given by “Almighty God,” two words were purposefully left out of that bill: “Jesus Christ.” And here is Jefferson explaining why: “Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word ‘Jesus Christ,’ so that it should read, ‘a departure from the plan of Jesus Christ, the holy author of our religion;’ the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination.”

The Everson case essentially (and properly in my opinion) imputes the meaning of that Virginia Statute into the First Amendment. Rehnquist argues in his aforementioned dissent that Madison’s and Jefferson’s vision expressed in that Statute was not dominant among the Framers. Further, Madison, as the architect of the Bill of Rights ought to be viewed differently than the one who zealously fought to secure Jefferson’s Bill because he “was James Madison speaking as an advocate of sensible legislative compromise, not as an advocate of incorporating the Virginia Statute of Religious Liberty into the United States Constitution.” Id. at 98.

Madison did indeed attempt to put broader, clearer language into the First Amendment— but that was voted down. Moreover, he wanted an Amendment that would essentially make Virginia’s view binding on state governments as well—but that too was voted down. Eventually the Framers came to settle on the very brief language of the First Amendment. Were these legislative compromises? Perhaps. But if they were, let us not forget what was being compromised: The Virginia Statute states that it secures the “natural rights of mankind,” and to grant less protection or to allow a greater intermingling of Church & State, “will be an infringement of natural right.” Therefore, if the First Amendment represented a “legislative compromise,” to Madison, it essentially represented a failure to fully secure rights that all governments are obligated to secure. Protestants had their rights secured by that Amendment, but Catholics, Jews, Gentiles, Muslims, Hindus, and others did not.

(Rehnquist’s view also perfectly illustrates what I have written about regarding social conservatives—Bork, Berns, et al.—who desire to use Constitutional formalism not to fully secure natural rights, but often to act as a check on them.)

But non-Christians are, by nature, entitled to the equal rights of conscience. Would it not be reasonable then, when possible, to construe the Constitution in a way that fully recognizes equal natural rights?

Perhaps the solution to this Constitutional dilemma can be found in the 9th and 14th Amendments. As Randy Barnett has argued, these two Amendments serve as textual grounds for incorporating natural rights and demanding that federal and state governments fully recognize them. Madison was initially against the Bill of Rights altogether because he feared an imperfect enumeration would give government a green light to only narrowly recognize what is written on the list, and free reign to violate all the rest. So Madison added the 9th as a failsafe. The First Amendment as construed by Story and Rehnquist certainly represents an imperfect enumeration of the equal rights of liberty of conscience. Perhaps the 9th Amendment—and, when dealing with the states, the Privileges and Immunities of the 14th—can pick up the slack that a too narrow reading of the First Amendment would leave. In other words, if the equal rights of conscience for non-Christians were not fully secured by the Framers’ intention regarding the First, they are nonetheless fully secured as “natural rights of mankind,” under the 9th and the 14th.

As I Walked Out One Evening
By W.H. Auden

As I walked out one evening,
Walking down Bristol Street,
The crowds upon the pavement
Were fields of harvest wheat.

And down by the brimming river
I heard a lover sing
Under an arch of the railway:
“Love has no ending.

“I’ll love you, dear, I’ll love you
Till China and Africa meet,
And the river jumps over the mountain
And the salmon sing in the street,

“I’ll love you till the ocean
Is folded and hung up to dry
And the seven stars go squawking
Like geese about the sky.

“The years shall run like rabbits,
For in my arms I hold
The Flower of the Ages,
And the first love of the world.”

But all the clocks in the city
Began to whirr and chime:
“O let not Time deceive you,
You cannot conquer Time.

“In the burrows of the Nightmare
Where Justice naked is,
Time watches from the shadow
And coughs when you would kiss.

“In headaches and in worry
Vaguely life leaks away,
And Time will have his fancy
To-morrow or to-day.

“Into many a green valley
Drifts the appalling snow;
Time breaks the threaded dances
And the diver’s brilliant bow.

“O plunge your hands in water,
Plunge them in up to the wrist;
Stare, stare in the basin
And wonder what you’ve missed.

“The glacier knocks in the cupboard,
The desert sighs in the bed,
And the crack in the tea-cup opens
A lane to the land of the dead.

“Where the beggars raffle the banknotes
And the Giant is enchanting to Jack,
And the Lily-white Boy is a Roarer,
And Jill goes down on her back.

“O look, look in the mirror,
O look in your distress:
Life remains a blessing
Although you cannot bless.

“O stand, stand at the window
As the tears scald and start;
You shall love your crooked neighbour
With your crooked heart.”

It was late, late in the evening,
The lovers they were gone;
The clocks had ceased their chiming,
And the deep river ran on.

Out of town: My friend Jason is visiting and we’ll be going out of town for the weekend, so I’ll be leaving Jonathan Rowe in charge.

Well put: From Wonkette:

civil unions...[are] supposedly a compromise, but we’re having trouble seeing what the anti-gay marriage folks got out of the deal. It’s not like they also outlawed white dresses and bad cover bands. Are they going to stand outside Unitarian churches with signs? “You’re not really married! Nah-nah-nah-nah!” Or, “We saved divorce for the people who really need it”?

DNA lineages: Beth Plocharczyk asks an interesting question about DNA testing. The answer, as Signifying Nothing says, is that there must be a clearly-established descendant against whom the bones can be tested. This means that the modern descendant’s lineage must be absolutely clear, though. (Oh, I should probably note that Plocharczyk appears to know this. I’m just writing this cause I like to show off that I know the answer too.)

Remember your basic genetics: men have an X and a Y chromosome, the X from mom, the Y from dad; women have two Xs, one from each parent. The Y chromosome is transferred mostly unchanged from father to son to grandson and so forth. The Jefferson-Hemings test to which Signifying Nothing refers was an attempt to match up Jefferson’s Y chromosome with those of Sally Hemings’ living descendants through an unbroken line of males, because the Y would go from Jefferson to his son to his son to his son and so forth. This could be easily done by comparing a known-for-certain Jefferson male descendant, who came through an unbroken line of males to the present day, with the guy who’s suspected of being a Jefferson descendant. If they match, then that means they share a common male ancestor.

The problem in Jefferson’s case is that he had no known male children who survived to adulthood. There are men today who believe they are descended from an unbroken line of males from one of Sally Hemings’ sons, but how do you prove it’s Thomas Jefferson’s Y chromosome? You can’t. The best the scientists could do was to get a Y chromosome from a person known-for-certain to be a male-line descendant of Jefferson’s uncle, Field Jefferson. Field Jefferson and Thomas Jefferson had the same Y chromosome because they were both descended from Jefferson’s grandfather: grandpa (whose name was also Thomas Jefferson) passed the Y to his sons Field and Peter Jefferson; Peter passed it on to his sons Thomas and Randolph; Thomas passed it on to Sally Hemings’ sons—if indeed he is the father of her sons. If this goes on from son to son to the modern day, the Y chromosomes of modern male descendants ought to match up. But if Randolph was the father of her sons, then that would also result in the modern white descendants of Field and the modern Sally Hemings descendants sharing a Y chromosome.

Well, they ran the experiment, and sure enough, in one case they matched: a son of a son...of Field had the same Y chromosome as the son of the son...of whoever was the father of one of Sally Hemings’ sons, assuming that all the birth certificates are correct. Technically this proves only that the current descendant of Sally Hemings is a descendant of a man who is descended from Thomas Jefferson’s grandfather through an unbroken male line—and even that is only proven assuming that the modern descendants of Sally Hemings are indeed the results of an unbroken line of sons; slaves did not get birth certificates. The test is therefore not, by itself, conclusive. But it did prove that Thomas Jefferson’s nephews, the Carr brothers, who had long been suspected, are certainly not related to the modern Hemings descendants, because they were the sons of Jefferson’s sister and his good friend Dabney Carr. Dabney Carr did not have a Jefferson Y chromosome—he had a Carr Y chromosome. So they’re out. That means the modern Sally Hemings descendant could be descended from Thomas Jefferson’s brother Randolph, or from Thomas, or from one of Field’s sons. It’s possible. We know next to nothing about Randolph’s life. But that all sounds like special pleading to me. That’s why I believe Jefferson probably was the father of at least one of Sally Hemings’ sons. But one might reasonably differ, certainly. (Interestingly enough, one of the modern descendants got a negative result. He was descended from Thomas Woodson, Sally’s first son, who was conceived in France. This man continues to claim descent from Jefferson, however.)

You can also do tests to determine female descent, through mitochondrial DNA, which is transferred only from mothers, but the snazzy thing about Y chromosome testing is that you don’t have to worry about getting the wrong X chromosome for your sample.

Anyway, this is a long way of getting to this answer: the test would have to compare the remains alleged to be Columbus’ with a modern person (or the remains of a person) known-for-certain to be a descendant of Christopher Columbus. And that would be very hard to establish, I would imagine. At the very least, it would be impossible to escape some real degree of uncertainty.

You can DNA test for paternity by yourself, too, if you like.

Are Gays a Threat to Civilization?: Gay Marriage might come to a town near where I grew up: “The gay-friendly borough of New Hope, Pa., a picturesque town on the Delaware River that has long attracted artists, antiquers, and tourists, wants Bucks County officials to issue marriage licenses to same-sex couples.”

Yes, New Hope is a very gay-friendly town. It’s also a beautiful town. It’s about 15 minutes north, up the Delaware River, from the town Yardley, PA, where I grew up. Everyday, especially on the weekends, you’ll see young college kids, families and their children, lots of educated and urbane yuppies, as well as punks, bikers and artists walking the streets, eating at the restaurants, hanging out and shopping. And the real estate prices are outrageously high. It probably is a bit like San Francisco or Berkeley.

Some social conservatives claim that gays represent a threat to civilization. I find this claim odd because the towns and cities where gays tend to congregate are some of the most civilized—or at least the most livable, (and expensive) places in the nation. I have seen anti-gay conservatives, as well as some gay friendly folks, trot out statistics demonstrating that gays have disproportionate levels of wealth, income, and education. Anti-gay conservatives usually disseminate these in order to demonstrate why gays aren’t an oppressed minority, why they don’t need civil rights status, etc. But isn’t there perhaps another way to interpret these figures? That gays, like Jews and Asians, are “model minorities” who are thriving in the free market. I don’t know whether these figures are accurate. There is much junk science about gays from both the left (the 10% of the population figure—it’s more like 3%) and the right (hyperpromiscuity, phony lifespan figures, made up diseases like “gay bowel syndrome”) that one hardly knows what to believe.

There are certain cities (or parts of them) in this country populated by various subcultures where it really does seem as if civilization has broken down, where poverty and crime are rampant, businesses are gone, people don’t work and depend on the government for support (and as an optimist, I see that things have gotten better since we reformed welfare, started locking up more criminals, and reduced the teen birth rate). But go to any geographic area where gays disproportionately congregate and you will see the antithesis of this. You will see towns where culture and business thrive—some of the most in demand and expensive real estate locations. Think about any town that you are aware of where gays congregate and see if you can find an exception: New Hope, PA, San Francisco, CA, Dupont Circle, DC, the Village in NY, Provincetown, MA, Key West and Miami South Beach, Fla.—Do we see a pattern here?

Force v. non-force: I was going to respond to Prof. Volokh’s “forcing religion” post, but Jonathan Wilde said just what I was gonna.

Fame!: Thanks to Overlawyered and Modulator for the links.

A Republican I could vote for: Now here’s one Republican I would vote for. Even though I do have my differences with his particular version of libertarianism, Ron Paul is still better than anyone else serving in Congress.

We just need to read the first very brief paragraph of his article to let us know why I say this:

“We will soon debate the ‘Broadcast Indecency Act of 2004’ on the House Floor. This atrocious piece of legislation should be defeated. It cannot improve the moral behavior of U.S. citizens, but it can do irreparable harm to our cherished right to freedom of speech.”

Everson was consonant with our original principles: Following up on my last post regarding social conservatives and the separation of Church and State, many religious conservatives claim that the case of Everson v. Board of Ed., 330 U.S. 1 (1947), incorrectly applied the Establishment Clause to the states—that the words “Congress shall make no law…” means Congress only, and that nothing has ever been written that should lead us to think that the First Amendment was ever intended to constrain state and local governments. I have posted that Randy Barnett makes a convincing case that the Framers of the 14th Amendment did indeed intend to incorporate the first eight Amendments of the Bill of Rights and apply them against the states. Therefore, there is textual authority (positive law) to support Everson’s application of the Establishment Clause against the states.

Still, many social conservatives disagree with my account of the 14th Amendment. Leaving aside the debate of whether incorporation was truly intended, let’s step back for a minute and examine the policy behind incorporation and ask how it squares with the abstract philosophical principles of natural and political right that this nation was founded on. Barnett posits that the “privileges and immunities” referred to in the 14th Amendment are these very same foundational natural and political rights. Barnett’s view simply calls for a broader, more universal application of these principles; Bork et al. call for a narrower, more restrictive application.

The Everson decision dealt with a vital natural right, liberty of conscience, which arguably was the one natural right that our founders thought to be the most important, the most unalienable. Everson (finally) helped to secure this right against state governments. Even if “technically” the Borkians are correct, that the First Amendment only constrains Congress, etc., the end result of allowing states to intermingle Church and State essentially allows states to subvert the most important of all of the natural rights.

As I wrote about earlier on this site, there is a group of social conservatives including Bork and many of the followers of Leo Strauss who advance a particular method of constitutionalism that seeks to divorce the Constitution from Natural Rights, and to use this constitutional methodology to turn away from and even subvert the original principles of natural rights that founded this nation. Their disagreement with incorporation in general and the Everson decision in particular illustrates this.

Just look at what Walter Berns (a Straussian—one of thinkers that I refer to above) has written regarding Everson: “Previously, everyone having anything to do with the subject understood that the prohibitions of the First Amendment did not apply to the states, and that to change this would require a constitutional amendment. This was Madison’s view. During the debates in the First Congress on the amendments that became the Bill of Rights, he proposed an additional amendment—he thought it the ‘most valuable amendment’ in the list—forbidding the states to ‘violate the equal rights of conscience.’ After being adopted in the House of Representations (where Madison served), the proposal went down to defeat in the Senate…But what Madison could not do in 1789…a divided Supreme Court…effectively did in the 1940s. Making Patriots, pp. 73—74.

This passage is so telling. The Supreme Court’s decision was—from a standpoint of Berns’s narrow positivistic constitutionalism—technically wrong. But what was the end result of that decision? It fulfilled Madison’s wishes and finally fully secured the most vital natural right, the most important of our original principles, against state violations!

More on gas: Every year I get the same damn emails about how we should boycott the gas stations because of the high prices. Thank you Prof. Volokh for pointing out how dumb that is. (More here.)

Milton and separation: Mr. Rowe’s comments on separation of church and state brings to mind my favorite advocate of separation—the greatest Christian poet, John Milton. In several books he argued against those who “join[ ] religion with civil prudence.” Joining religion and government has caused “nothing but troubles, persecutions, commotions…the inward decay of true religion among ourselves, and the utter overthrow at last by a common enemy.”

If then we count it so ignorant and irreligious in the papist, to think himself discharged in God’s account, believing only as the church believes, how much greater condemnation will it be to the protestant his condemner, to think himself justified, believing only as the state believes? With good cause, therefore, it is in the general consent of all sound protestant writers, that neither traditions, councils, nor canons. of any visible church, much less edicts of any magistrate or civil session, but the Scripture only, can be the final judge or rule in matters of religion, and that only in the conscience of every Christian to himself.

Elsewhere, he urged Cromwell to

leave the church to its own government, and relieve yourself and the other public functionaries from a charge so onerous, and so incompatible with your functions; and will no longer suffer two powers, so different as the civil and the ecclesiastical, to commit fornication together, and by their mutual and delusive aids in appearance to strengthen, but in reality to weaken and finally to subvert, each other; if you shall remove all power of persecution out of the church, (but persecution will never cease, so long as men are bribed to preach the gospel by a mercenary salary, which is forcibly extorted rather than gratuitously bestowed, which serves only to poison religion, and to strangle truth,) you will then effectually have cast those money-changers out of the temple, who do not merely truckle with doves, but with the dove itself, with the Spirit of the Most High.

Now, it’s hard to know how much Jefferson and Madison were influenced by Milton. They don’t mention him except once in their entire correspondence, and that’s just a reference to a book Jefferson sent to Madison. Bernard Bailyn believes Milton was influential to the founders, and John Adams mentions him several times in his own readings, but I know of no direct discussion of Milton’s political views in Jefferson’s writings. Still, there are some suggestions that Jefferson read Milton—in Notes on Virginia, for instance, he says “Reason and experiment have been indulged, and error has fled before them. It is error alone which needs the support of government. Truth can stand by itself.” this sure sounds like Milton’s famous line from Areopagitica, “though all the windes of doctrin were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licencing and prohibiting to misdoubt her strength. Let her and Falshood grapple; who ever knew Truth put to the wors, in a free and open encounter[?]” And we know that Jefferson often quoted writers without credit—he read so much they just got stuck in his brain. (For instance, his famous reference to slavery as “having a wolf by the ears” is a quote from Terence; his saying that “the earth belongs to the living” is a quote from Lucretius; his statement that “the mass of mankind were not born with saddles upon their backs” is from Algernon Sidney.) And we know he quoted from Milton’s divorce tracts at length during one divorce case he handled as a lawyer. So perhaps Jefferson was paraphrasing the greatest Christian poet, and a great libertarian, John Milton, when he referred to the wall of separation between church and state.

Anal grammar corrections: You know what checkout sign bugs me? “Ten Items Or Less.” No, no, no, no, no! It is “Ten Items or Fewer.” It’s less of a single entity, fewer of discrete entities. I made a sarcastic comment about this to a friend of mine at a Wal-Mart once, and the cashier intoned, “We’ll have that fixed right away, sir.”

But I think she was being sarcastic.

Oh, and you know what, Andrew? I believe in the tenants of the Catholic Church, too.

Libertarians & the GOP: Yes many libertarians vote Republican. Prof. Marston reminds me why I don't.

Yay!: My Edward Coke writings came in the mail today. Exciting reading awaits! (I am such a nerd.)

Natural Rights and Religion: One claim that I often hear the religious right make against the concept of the separation of Church and State is that the Establishment Clause was passed simply to forbid the federal government from establishing one dominant national sect, while preserving and encouraging the ability of the states to establish their own (Christian) churches with differing denominations, and to promote religion in other ways. This claim is misleading at best, outright false at worse.

Let me reiterate some of my comments that I made regarding the Founders and state violations of natural rights, because they are relevant to this post as well: Just because the federal government didn’t have the recognized power to prevent the states from doing X, doesn’t mean that the Founders approved of—or thought it was a good thing—that the states did X. The Bill of Rights secures many vital natural rights of mankind (as well as some constitutionally created non-natural positive rights). Natural rights are rights that no government, federal, state, or local may properly infringe. Yet, the federal government originally did not give itself the power to enforce the Bill of Rights against the states. If a state therefore didn’t recognize one or more natural rights of its citizens, we can conclude that the Founders disapproved of such actions, that such actions were in fact anathema to the principles that this nation was founded on, even if the federal government couldn’t stop what was going on.

The father of the Bill of Rights, Madison (and Jefferson and others), thought liberty of conscience in particular to be one of the most important—if not the most important—natural right of mankind (which he/they learned from Locke). Madison felt so strongly about this that he fought for an additional amendment to the Bill of Rights forbidding the states to “violate the equal rights of conscience.” Yet, this measure failed to pass.

Madison believed that “a perfect separation between ecclesiastical and civil matters” was required in order to fully secure the right of liberty of conscience. Without doing so, history had taught us that religious persecution was all but inevitable. Catholics had used the state to persecute Protestants in Catholic nations. And Protestants did the same to Catholics and to one another in Protestant nations. (This is to say nothing about how the non-Christian sects were treated!)

If you want to take a look at exactly what Madison and Jefferson thought must be done in order secure the natural right of liberty of conscience, check out the Virginia Statute on Religious Freedom, which Jefferson penned and Madison fought tooth and nail for its passage.

That statute disestablished the Anglican Church, forbade religious tests for public office, and granted at least as great a degree of religious freedom as did the US Constitution’s religion clauses (I don’t want to say that the statute granted “greater” protection because the exact meaning of those very short religion clauses in the Constitution is up for debate. I personally believe that our religion clauses were modeled after this document, and that the specific provisions in this statute should be regarded as interpretive authority for the meaning of the First Amendment).

And in fact, the statute did much more than that. The entire statute is worth reading, but let me highlight some important passages. It states “that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical;” and “that no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.”

Notice how the word “opinion” is often used to describe any religious belief. I stress this because it evidences that—far from being founded of “Biblical Christianity” as Roy Moore claims—our country was founded on a Lockean system that solved the religious/political problem that long plagued Western nations by consigning religion, and thereby confining it, to the private sphere. In order to do this, “religious beliefs” were taken from the realm of “Truth” and consigned to the realm of “Opinion.” The net effect of this was to significantly (and rightly, in my opinion) restrict the power that “religion” had on society. As Allan Bloom describes the American Founding and religion, “there was a conscious, if covert, effort to weaken religious belief, partly by assigning—as a result of a great epistemological effort—religion to the realm of opinion as opposed to knowledge. But the right to freedom of religion belonged to the realm of knowledge.” The Closing of the American Mind, p.28. The right to religious freedom is “knowledge” because it is a natural right that belongs to all men at all times and places, regardless of whether governments recognize it or not. And this “knowledge” is ascertainable by Man’s Reason alone, unaided by Biblical Revelation.

And Jefferson’s Statute is clear that these rights belong to more than just the citizens of Virginia. It states “that the rights hereby asserted are of the natural rights of mankind….” The wording of the statute also illustrates my above point—that even though the federal government might not have had the jurisdictional power to secure the natural rights of man against the states, they certainly didn’t approve of the states violating their citizens’ natural rights. In fact the Virginia Statute recognizes that it had no power to restrain future Virginia Assemblies from repealing the Statute, but it sternly warned them not to do so. And here is why: “if any act shall be hereafter passed to repeal the present [Virginia Statute] or to narrow its operations, such act will be an infringement of natural right.”

So what about all of those other states that didn’t deal with religion in way that Virginia did? What about those states that had established churches, imposed religious tests for office, used funds to directly aid religion? We can we conclude that the Founders (or at least Jefferson and Madison) thought about these actions? The answer is clear: that they violated the natural rights of the citizens of those states, and were thus dissonant with the principles of the American Founding.

Scalia’s speech: On top of Ed Brayton’s comments on Scalia’s speech, I would add that it is really unfortunate that a Supreme Court Justice would express himself in such hysterically exaggerated terms as “It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution.” I think the Court has allowed out legislatures to diverge from the text of the Constitution in many, many ways, and to an extreme degree—but it has not literally liberated itself entirely from the text, and I would expect a calmer, more rational expression from a Supreme Court Justice. Justice Scalia can slaughter sacred cows with the best of them, particularly in his dissents, but to express himself in these terms is to fall into demagoguery. A great many of the Court’s opinions are unanimous, and most of them do not even involve constitutional interpretation. And even when it is wrong, the Court has certainly not liberated itself entirely from the text of the Constitution with some minor exceptions; it always issues an opinion that at least makes some plausible constitutional argument. (One prime “exception” that comes to mind is 11th Amendment sovereign immunity, which has absolutely no textual basis whatsoever, and yet Justice Scalia has been in the majority on those cases!)

Scalia’s demagogic expressions continue when he says that in Lawrence the Court recognized a “constitutional right to homosexual sodomy, something else that had been criminal for 200 years.” First, as a matter of fact, the Court went through a lengthy analysis of whether, indeed, it had been criminal for 200 years, and it at least found reasons to question that assertion; reasons which Scalia did not adequately refute in his dissent. Second, as a matter of law, the Court did not recognize a right to homosexual sodomy in Lawrence. That characterization is irresponsible, misleading, and unworthy of a Justice of the United States Supreme Court. What the Court found was that the Due Process Clause prohibits the states from regulating private, adult, consensual sexual activity that harms no unconsenting third parties, and that there is no rational reason not to apply this rule to homosexuals as well as to heterosexuals. One might dispute that legal conclusion, but one cannot reasonably dispute the fact that that is the conclusion the Court reached. Setting up a straw man as Scalia does is really inappropriate; we’ve come to expect it from the hysterical conservatives, but from a Justice of the United States Supreme Court? We ought to get a more serious, calm, and rational analysis from one of the nine leaders of the legal profession in the Western World.

It’s a gas: Good post at Countertop Chronicles about the uses and importance of oil. It’s true—we tend only to think of oil as fuel, and overlook the other many uses to which we put it.

Campaign themes: A particularly pathetic earthling lent me a CD of presidential campaign songs from Washington to Clinton. It’s very amusing, but also a very interesting catalogue of antique memes. The Madison campaign song, for instance, emphasizes the importance of union:

Now have the foes of freedom sought
Our happy union to divide,
For which our heroes bravely fought,
For which our patriots bravely died,
But vain their efforts all have proved,
The temple still unshaken stands,
Nor by the power of faction moved
Nor leveled by rebellion’s hands,
Huzzah for Madison, huzzah, for union and America,
Huzzah for Madison, huzzah, for union and America….
While Jefferson to shade retires
And Madison like morn appears
Fresh confidence and hope inspires
And light again the nation cheers….

The John Quincy Adams song is especially weird,

Little know ye who’s comin’
Little know ye who’s comin’
Little know ye who’s comin’
If John Quincy not be comin’.
Fire’s coming, swords’re comin’,
pistols guns and knives are comin’
Famine’s comin, Mammon’s comin’
If John Quincy not be comin’.

Wonder what John Quincy—who could have taught Niles Crane a thing or two about priggishness—thought of that verb conjugation. At least, I can imagine updating it for Clinton. (Tee hee!) Then there’s this, for James Buchanan:

We’ll turn our back on Frémont,
For his principles endorse
A wooly headed platform upon a wooly horse
But let our hearts for union beat
The north and south be one,
They’ve worked together manfully,
Together they’ll work on.
Come all ye Democrats, hear the people say,
Buchanan and John Breckenridge will surely win the day.

By “wooly headed,” this song does not mean “stupid,” but rather, “anti-slavery”; the term refers to the hair of black people. The vocabulary of antique politics can get a little confusing sometimes: the James Polk song (“Ha, ha, such a nominee / Jimmy Polk of Tennessee”) refers to “loco-focos,” for instance, which was early 19th century slang for the Democratic Party; apparently it was a term for matches, and the Democrats, you see, were “barn burners.” Some day, historians will find it equally difficult to figure out the differences between the Republican and Democrat parties. Some of us are already that advanced.

Finally, the campaign song against Andrew Johnson is particularly abusive:

Just before election Andy,
We are thinking most of you
While we get our ballots handy,
Just be sure they’re not for you
No dear Andy, you’ll not get them
But you will get what you deserve,
Yes, you’ll get your leave of absence
As you swing around the curve.
You have swung around the circle,
That you ought to swing, tis true,
Oh, you tried to veto Congress,
But I guess they’ll veto you.

Every year we hear how abusive presidential campaigns are—the most recent one is, Kerry’s financée (ha!) has been handing out buttons that accuse Bush of being evil and stupid. But back in the day the campaign music actually advocated the execution of the sitting president! Some of these, I suspect, were just written by newspaper editors somewhere, and never really sung by anyone. But others probably were relatively popular; some have pretty catchy tunes. How quaint everything seems in retrospect.

States’ rights: I’ve not yet received my copy of Barnett’s book, but one of Mr. Rowe’s comments brought some things to mind. He notes how conservatives “claim something like, ‘the Founders only wanted the Federal government to be restricted from touching these areas (the Bill of Rights, for instance), but they perfectly approved of state governments restricting these rights.’ No they didn’t.” That’s right, and one of the best short discussions of this is in Clint Bolick’s book Grassroots Tyranny, which begins with a reiteration of the fact that the framers created a federal system in order to protect individual freedom, not to protect the states. Indeed, Madison’s explanation in Federalist 10 that large republics are safer is based on Madison’s view that local government was less resistant to the mischiefs of faction. The near worship among conservatives for the virtues of local government entirely ignores this point—a point that many Madison scholars consider his greatest theoretical accomplishment! And Madison makes a similar point in Federalist 45, when he responds to those who criticized the proposed constitution on the grounds that it would harm local governments:

is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States? Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form…? [A]s far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.

And Madison was very consistent on this point. Rowe says that “the Founders in no way approved of the states infringing their citizens natural rights. They just didn’t yet have the ability to prevent the states from doing this.” Madison actually tried hard to get a provision inserted into the Constitution that would allow the federal government to veto state laws, particularly laws which infringed on such rights as free speech. The lack of this provision in the final document he considered to be practically fatal to the Constitution.

Chapter Three in Barnett’s Book: I have already read part of Restoring the Lost Constitution and Chapter 3—“Natural Rights as Liberty Rights,” is my favorite section so far. Let me point out of few things that Barnett has successfully argued in this chapter alone.

One, the Founders believed in natural rights—rights that no government, federal, state or local may properly infringe. This is important so bear with me if I get a little redundant. If the Founders concluded that a particular right qualified as a natural right—for instance, free speech, liberty of conscience, and many, many others—they didn’t believe that any government, including state or local ones, could legitimately infringe them. This helps to answer those conservatives who claim something like, “the Founders only wanted the Federal government to be restricted from touching these areas (the Bill of Rights, for instance), but they perfectly approved of state governments restricting these rights.” No they didn’t. While it is true that before the balance of power between the states and the federal government underwent a major shift with the Civil War and subsequent passage of the 13th and 14th Amendments, the federal government didn’t have the recognized power to enforce the natural rights of the people against states, the Founders in no way approved of the states infringing their citizens' natural rights. They just didn’t yet have the ability to prevent the states from doing this. Rather, it was hoped that the states, on their own, would voluntarily respect their citizens' natural rights, even if they didn’t always do so.

Two, that not only are many of these natural rights unenumerated, but they are literally unenumerable. Barnett quotes many Founders to prove this point, including James Wilson, a member of the Constitutional Convention, who puts it this way: “a complete enumeration of rights appertaining to the people as men and citizens….Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing.” p. 56. This sets the stage for Barnett’s later claim that the Constitution has what’s called a general presumption of liberty, that whenever the government infringes upon any liberty, it must justify its actions by demonstrating that it is acting pursuant to a recognized legitimate government function, and these are few in number.

Three, one of the most powerful arguments against a Bill of Rights at the time of the American Founding was that the Founders were fearful that someone might interpret its inclusion exactly as Robert Bork does: that once a list is enumerated, those are the only rights that the people have against the state, all others are “surrendered to the government.” Another great quote by Wilson: “In all societies, there are many powers and rights, which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, everything that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government; and the rights of the people would be rendered incomplete.” p. 56. Barnett also quotes future Supreme Court Justice James Iredell: “Let any one make what collection or enumeration of rights as he pleases, I will immediately mention twenty or thirty more rights not contained in it.” p. 57.

Four, that—again contra Robert Bork—neither the 9th Amendment, nor the privileges and immunities clause of the 14th Amendment are either “dead letters” or “essentially incomprehensible, thus void”—that the Framers intended both of these provisions to be used to secure unenumerated “natural rights” or “liberty rights.” To guard against the very reasonable fear mentioned above, Madison proposed the 9th Amendment. “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but I conceive, that it may be guarded against.” pp. 59-60. The 9th Amendment did this by attempting to secure the many other “rights retained by the people,” not included in the Bill of Rights, which were too numerous to list.

The 14th Amendment secures these natural rights through its privileges and immunities clause. The reason why the Framers of that Amendment didn’t use the term “natural rights” and instead used the term “privileges and immunities” is because the latter is a broader term. Privileges and immunities include not only all natural rights, but also positive rights as well.

Five, the 14th Amendment was indeed intended to incorporate the Bill of Rights against State Governments. Conservatives are wrong to claim that this Amendment was not intended to incorporate the Bill of Rights at all. And liberals are wrong to only recognize a “partial incorporation.” The proper way to interpret the Bill of Rights is as incorporating all of the first eight Amendments, 2nd Amendment included. Barnett quotes Senator Jacob Howard, a Republican and former attorney general of Michigan: “To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution.” p. 65.

Sad news at Cato: Funny how news stories seem unreal until you see the people affected.

Flag burning: Congratulations to Steve Dillard, who is trying hard to prolong his string of agreeing with me by posting a very good repudiation of attempts to constitutionally prohibit freedom of expression. Of course, Dillard knows that the more he agrees with me, the more he’s right.

Louis Khan: Tyler Cohen mentioned the architect Louis Khan. Khan designed the Salk Institute in La Jolla, California, where Jacob Bronowski worked for the last decade of his life. Bronowski’s widow told me the awful story of Khan’s death—he had a heart attack at New York’s Grand Central Station, and nobody came to his aid. Instead, his body lay, unidentified, for several days in the station. When authorities finally picked him up, they found that someone had stolen his wallet.

More on activism: I actually disagree with Jack Balkin’s explanation for why people tend to throw around the term “judicial activism.” The real reason is that in the 1930s, our courts turned so sharply away from the actual meaning of the Constitution that it created what Bruce Ackerman has called a virtual constitutional amendment. Yet it was, indeed, virtual—not real. That means that anyone who holds fidelity to the Constitution will be considered an “activist” by those leftists who have been brought up on the New Deal jurisprudence, while those who hold to the New Deal jurisprudence will be called “activists” by those who bear fidelity to the Constitution. It’s as simple as that.

My earlier comments on “judicial activism” are here, here, and of course here.

Bogey-whatever: Prof. Marston writes “I don't have an opinion on ‘categorical rules’ versus balancing tests; much depends on the content of the rules and on who is applying them. [Sandefur’s] proposed categorical rule doesn’t help clarify things very much (‘a categorical rule of compensation for every taking of property for a public use’), since it's just a restatement of the Takings Clause itself. This is a testimony to [Sandefur’s] belief that he is advancing the one true account of the Takings Clause, which is fine, but it’s not much help for those of us who suspect that there is a lot lurking underneath the word ‘taking’ when they read it on [Sandefur’s] blog.” Yes, indeed, I am merely restating the takings clause, because I believe the Constitution ought to be obeyed, rather than dodged. Seeking to dodge it means we must rely on the personality of the judges, as Prof. Barnett says: “Any method of interpretation that is flexible enough to allow judges to reach their favored result even when it conflicts with the text will lead to the downward spiral concerning judicial appointments.” The “Progressive” political philosophy Prof. Marston embraces—for which avoiding the Constitution’s text is so very vital—can admit no cure for the mischiefs of faction, and can propose no principled limit to the reach of government. Thus “the character of the citizen body…is virtually all-important for the achievement of the good polity. Throughout his political writings, [Prof. Marston] deliberately minimizes the importance of institutional and constitutional arrangements. He thereby places almost full dependence for the achievement of the good, democratic regime upon the existence of an educated, enlightened, public-spirited and active citizenry.” Robert Horwitz, John Dewey, in L. Strauss & J. Cropsey eds., History of Political Philosophy 865-66 (3d ed.1987).

As for what “lurks” in my definition of takings, I’ve explained this at length in my debate with Prof. Marston some months ago. Any taking of property to provide a public good requires compensation under the takings clause, while the protection of life, liberty and property by the state is a police power act which requires no compensation.

Skill and talent: Mr. Rowe’s comments about Stevie Ray Vaughan bring to mind the notion of “flow” described by Csikszentmihalyi, and touched on by Polanyi and others. Simply put, skilled people really find themselves at a loss to describe how they do what they do. They don’t think through ahead of time and then go step by step—they somehow just get into the flow of things and it seems to come out of them naturally, without conscious intention. Eric Clapton, for instance, has said that the music seemed to “flow” out of Vaughan, and that Vaughan never seemed to be lost in any piece that he played. I think we find this in many other arts as well. Ancient poets like Homer thought they were inspired by muses—the term “inspire” meaning “breathed into.” Even I have sometimes come across something I wrote a while ago, and when I read it, I cannot remember ever having actually written those things—I’m pleased with how they came out, but I don’t recall ever having considered the phraseology that way. It is this “flow” phenomenon that many people interpret as supernatural—as some sort of possession; Socrates himself claimed to be spoken to by a supernatural presence he called his δαιμον, which the Christian world rendered into “demon.”

What is the real cause? Hell if I know, but in chapter 8 (and elsewhere in) Consciousness Explained, Dennett approaches an answer. His argument is too long—and too well expressed—for me to do it justice here, but he uses the production of speech as his example for his argument that we are misled by imaging that the brain has some central Mean-er which creates a sentence and then utters it. We simply don’t speak that way. We speak while thinking—our brains contain several simultaneous operations, not all of them visible to one another, which allow us to compose and utter our speech at the same time. I type while thinking of what to say; back in the 19th century, some great newspapermen, like William Lloyd Garrison, used to be able to write on the composing stick. This ability of the brain’s multiple simultaneous processes to operate in synch with one another enables people to do what we appropriately called graceful performances. The answer to the mystery of “inspiration” isn’t mysticism, but rather the fact that the Personality is not the only thing going on in the brain. As Dennett concludes,

In biology we have learned to resist the temptation to explain design in organisms by positing a single great Intelligence that does all the work. In psychology we have learned to resist the temptation to explain seeing by saying it was just as if there were an internal screen-watcher, for the internal screen-watcher does all the work…. We must build up the same resistance to the temptation to explain action as arising from the imperatives of an internal action-orderer who does too much of the specification work. As usual, the way to discharge an explanation that is too big for our theory is to replace it with an ultimately mechanical fabric of semi-independent semi-intelligences acting in concert.

Id. at 251. In short, both Rowe and I are right—there’s no single entity in the mind which, through practice, simply becomes capable of performing like Stevie Ray Vaughan. On the other hand, it isn’t a mystical attribute. It’s the simple, everyday, non-mystical miracle of the human mind.

If you haven’t read Consciousness Explained, you really must do so.

Fame!: Thanks to Prof. Bernstein for the mention. As I mentioned before, I really like Letwin’s article a lot, and would be happy to furnish free copies for anyone who would like one. Just ask.

Practicing v. Playing: There is a difference between these two concepts. I don’t deny that Vaughan played his guitar for more hours in a day than most of us can imagine (yes, I’ve heard the story—which I don’t believe by the way—that he would play so much that a fingertip once got torn off. And he picked up his torn off tip, put it back in place, and continued to play). Playing just take time. Practicing takes time and regimentation. I don’t think he really had to struggle to learn this stuff—it just came naturally. For those of us where music doesn’t come so easy, there is a methodological way to learn and develop the skill—and, through hard work, one can develop a high degree of skill in music even if not naturally gifted. It’s just much harder for folks who don’t have the natural talent to do this. Because “rock” music has no official “method of learning,” people trying to learn rock who don’t have some sort of natural talent tend not to acquire much musical skill (most rock players tend to be “ear” players and “ear” learners).

But Jazz and especially classical music do have a regimented method of learning these disciplines. And that regimentation—these learning principles and techniques—can be borrowed and applied to learning “rock” music as well. This is what my undergraduate Alma Matter, Berklee College of Music, specializes in doing.

Blacks, Gays, & Civil Rights: I just saw an anti-gay black reverend on the O'Reilly Factor decry the civil rights comparison that gays, as a minority group, make with blacks. Civil rights can be one very complicated issue, so let me try to be brief with the few points that I make.

Although I support gay rights, (but from a libertarian point of view), I would caution gays from trying to claim that their struggle, as well as the homosexual condition, is identical to the black struggle and the condition of “race” (or at least if you do make such a comparison, know how to finesse the issue). The reverend was offended that considering all that blacks have gone through—from slavery, to lynchings, to Jim Crow, etc.—that gays would make such a comparison. And he’s correct in one respect—gays haven’t been through this.

His point, however, ultimately is an impotent one. Yes “race” can meaningfully distinguish itself with “sexual orientation.” However, because of the wholly unique history of race in this nation as well as in the world, race can meaningfully distinguish itself from any “condition” or “group” that tries to make an analogy with it. And here’s the rub: We don’t live in a world where race and only race is recognized as the one true “civil rights” category and along comes “sexual orientation” asking for civil rights recognition on the grounds that it is virtually identical to race. Rather we live in a world where not only “race” and racially similar categories like “color” and “ethnic origin,” receive such protection at the federal level, but so also do “gender,” “religion,” “age,” “disability,” and “pregnancy.” Most of these conditions are as disanalogous (if not more so) with “race,” as is “sexual orientation.” And “sexual orientation” can advance a history of persecution that far exceeds most of the categories already on the list (perhaps second to only “race”).

The relevant question then is, given the what’s already on the list, is there a good and compelling reason for keeping “sexual orientation” off the list? Richard Posner, in Sex and Reason, puts it this way: “[G]iven Title VII and cognate laws, is there a reason to exclude homosexuals from a protected category that already includes not only racial, religious, and ethnic groups but also women, the physically and mentally handicapped, all workers aged 40 and older, and in some cases, even young healthy male WASPs? Is there less, or less harmful, or less irrational discrimination against homosexuals than against the members of any of these other groups? The answer is no.” p. 323.

Of course, as a libertarian, I am not a big fan of anti-discrimination laws existing in private markets in the first place. I do categorically favor government being constrained by such laws. But if we must have such laws in the private sector, for reasons of equity and fairness, I think sexual orientation should be on the list.

And what really complicates this issue is that the reverend’s comments were made in the context of the gay marriage question. And it is possible for one to believe that “sexual orientation” ought to receive official civil rights protection and still be against gay marriage in principle. Many in fact do take this position.

Fame!: I’m gratified to welcome Pieces of Flair to the blogroll. It’s a blog by two of my college classmates, Meredith Kapushion and Matthew Hisrich, and it’s a source of constant amusement. Where do they find this stuff?

Talent versus skill: I tend to shy away from using the word “talent” when describing someone’s extraordinary abilities. I did call Stevie Ray Vaughan “talented,” but only with some reservation, and were I to write that blog post I would say “skilled” instead. What I don’t like about calling someone talented is that it tends to perpetuate the notion that a person is not himself responsible for his abilities. Of course, the mystics like this—any time someone is good at something, they say he has an ability endowed on him by God, for which he cannot take credit (and any time he’s bad at something, it’s his own damn fault). Stevie Ray Vaughan certainly did not come out of his mother’s womb with his fingers ready to play—he practiced and worked at it till he smoked like a sumbitch. He began practicing on the guitar when he was seven years old, copying musicians he admired, and learning from his brother Jimmie. His big break came in 1982—when he was 28 years old. That means 21 years of constant work; practice; playing in bars; following his heroes like Albert King around and hoping for a chance to play with them. If SRV’s ability was given to him by God, God sure made him work for it. And were it God-given, I wouldn’t have nearly the respect for him that I do. (I should perhaps add that Vaughan was a deeply religious man who did believe that his talent was God-given, and he would not have endorsed my atheism in the slightest.)

Lamenting the Iraqi Constitution:

Tim,

Regarding your comments on the Iraqi constitution, I agree, this is terribly unfortunate. And let’s keep one thing in mind: Iraq (and I believe Afghanistan too) has done something in its newly founding document that this nation never did with Christianity in ours. Those claiming that Christianity is the legal foundation for this nation are perpetrating a fraud, as neither words—“Christian” or “Jesus”—or any variation thereof are mentioned in either the Declaration or the Constitution. Yet if Islamo-fascists manage to get into power in Iraq and thunder that, “this nation is founded on Islam!” they will have Iraq’s founding document to back them up.

On a side note, while flipping through the channels, I sometimes catch the 700 Club to see what good old Pat has to say. And I have heard Robertson discuss this issue on more than one occasion. He has categorically demanded that the constitutional government that America is helping to establish in Iraq be secular, one that separates Church and State. I only wish that he would be so enthusiastic about secular government in America as well. Perhaps the reasons why it’s a good idea for Iraq’s government to be secular in principle are the same ones that explain why our Founders established a secular American government.

Obviously, Christians won’t be able to worship freely in Iraq if there is no such separation. And before our Founders separated Church and State, non-dominant sects (for the most part) could not worship freely in the West.

Contemporary Islam’s problems can be boiled down to one statement: They haven’t yet been through an Enlightenment. One of the cardinal principles of the Enlightenment (especially Locke’s teachings) is the separation of Church and State, a doctrine based on the natural right of liberty of conscience.

It’s time that Islam joined the modern era. And I don’t know if this new Iraqi constitution is helping that particular nation to do so.

Barnett’s book just came in: Just picked it up from Barnes & Noble. I’ll definitely have more to say on this book.

Rowe’s Thoughts on SRV and other Blues Guitarists:

Tim,

SRV is one of my favorites too. Personally, as a guitar player myself, guys like that…well, it’s just depressing that I wasn’t lucky enough to be born with talent like that. I mean, SRV came out of his mother’s womb with his fingers ready to play. Me, I had struggle and practice, practice, practice (and got tendonitis, as a result) for every lick that I learned.

Jeff Beck is one of my favorites too (a great blues guitarist—although he goes way beyond traditional blues into jazz-fusion inspired instrumental rock and other styles. His playing, however, remains at heart, blues based). I wish I could have seen the tour that Beck and Vaughan did together. I consider it a major personal accomplishment that I learned to play every note of Beck’s ‘Cause We’ve Ended as Lovers, from his classic album Blow by Blow.

I’ll give notable mention to another one of my favorite white blues guitarists: Gary Moore. His album, Still Got the Blues, is a true blues guitar classic. If you are a fan of the genre and haven’t heard of him, check it out.

Quote of the day: “I regret to say that we of the FBI are powerless to act in cases of oral-genital intimacy, unless it has in some way obstructed interstate commerce.”—J. Edgar Hoover. (Sorry, no cite.)

What’s that?: I’m reading Daniel Dennett, edited by Andrew Brook and Don Ross. It’s a collection of essays about Dennett’s thought and influence, which I was eager to read because I admire Dennett so much. The back cover says that the book “will not presuppose that readers are already intimately familiar with the details of each philosopher’s work. They will thus combine exposition and critical analysis in a manner that will appeal both to students of philosophy and to professionals as well as to students across the humanities and social sciences.” Well, I’m sorry to say it’s not nearly so accessible as that suggests. I’ve had to re-read several paragraphs several times to understand them—which differs greatly from Dennett, who writes very clearly and is very easily understood.

Anyway, I thought this passage was interesting:

It may be true that the brain cannot employ general learning mechanisms at the SPCP [sub-personal cognitive psychological] level of analysis…. However, if this is true, it does not imply that semantics specifiable only at the IS [intentional system] level could not be derived from relational patterns embedding subpersonal cognitive mechanisms in environments, including cultural environments. Consider the following example. In conversations with my mechanic, I can use the word “carburetor” to both convey and receive plenty of useful information, despite the fact that I’m almost completely ignorant about how engines work and have no idea where the carburetor is or what it does. There are minimal requirements on my being able to do anything with the concept of a carburetor, but they’re mostly negative: I could do nothing at all with the idea if I thought that carburetors were vegetables, or demons. Now, to ask a standard philosopher’s question: Do I have the concept of “carburetor” or not? Clearly, I’m missing a great deal of the concept, but I don’t have nothing; I really would be practically worse off if I thought that carburetors were demons. Notice, however, that this “something” I have is almost all “stored” in cultural information external to data-structures that could be recovered at the level of a subpersonal model of my information-processing abilities. I live in a culture that has the concept, and I know that I do, and I can exploit this fact to achieve reference to whatever, as far as I can tell, inhabits the relevant black box. If everyone who knows what carburetors are and what they’re for perished in a deadly plague among the automotively competent, the concept would die with them, leaving only my empty word as its vestigal trace. At that point, I and others like me really would have nothing in the carburetor-concept department, beyond a bit of lexical arcane historically related to it, despite the fact that, by hypothesis, nothing has changed in our individual cognitive capacities. I do not think that this variety of semantic parasitism on culturally stored competence is an unusual or deviant case; it is an instance of the standard one. This is one of the reasons why necessary-and-sufficient condition conditions are hard to produce and to make counterexample-proof, even of concepts whose conditions are fluently grasped in practice, and why Socrates, who insisted that all knowledge requires such definitions, can tie all of his interlocutors in knots.

Don Ross, Dennettian Behavioral Explanations And The Roles of The Social Sciences, in id. at 151-52.

The “Purity” Test: I scored 96. But the test is bunk. It presumes that in order to be real libertarian, you must be an anarchocapitalist. This is nonsense. You can be a libertarian even if, like me, you have a very strong distaste for anarchocapitalism. The fundamental principle of libertarianism is that the individual owns himself. This means that society, qua society, has no rights that valid against individuals. If you believe that, you’re a libertarian. The rest is prudence.

Iraqi constitution: The Iraqi constitution is not a cause of rejoicing. It is going to prove a disaster in practice and an embarrassment to America. Here’s the text, and you can see why.

Islam is the official religion of the State and is to be considered a source of legislation. No law that contradicts the universally agreed tenets of Islam, the principles of democracy, or the rights cited in Chapter Two of this Law may be enacted during the transitional period. This Law respects the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice.

(Article 7A).

The individual has the right to security, education, health care, and social security. The Iraqi State and its governmental units, including the federal government, the regions, governorates, municipalities, and local administrations, within the limits of their resources and with due regard to other vital needs, shall strive to provide prosperity and employment opportunities to the people.

(Article 14). You cannot have a free society without a separation of church and state. I had hoped we had learned that centuries ago—although our conservatives strive to make us forget it. And you certainly cannot have a free society when the state “strives” to “provide prosperity” by stealing from some people and giving to others. This is a very sad day in the history of America. We have witnessed the birth of a socialist theocracy, and politely called it freedom.

The public interest law choice: Thanks to Machine in the Ghost for the kind words. Public interest law is not for everyone. As my father is fond of pointing out, I found the only area of law you can possibly go into and make no money. I make decent money—a little over $50,000 a year, which is pretty good for an attorney with about a year’s experience. But that does not permit high living, especially when you take out the $350 per month student loan payments. I rent my home, drive a Saturn, and eat frozen TV dinners. I would not want to try to raise a child on my salary.

But that does not mean that you cannot do public interest law. Many firms have pro bono programs whereby you can devote time to causes you believe in. Unfortunately, a lot of these programs are not open to this side of the political spectrum—a good friend of mine was recently told she would not be allowed to take on a case for the Boy Scouts, for instance—and many pro bono programs only allow attorneys to work for non-profits, which means you can’t defend small businesses, which is my passion. Still, you can always work on a case on the side. And firms like the Pacific Legal Foundation and the Institute for Justice frequently need local counsel to help out on cases (and if you’re interested, do drop me an email so I can put your name in my directory).

And of course, if you decide “to sell out and make the big bucks,” that’s great! Us non-profit types need rich donors to keep us in business! You can contribute here.*

Oh, and, as an Objectivist, I certainly do not consider it “selling out” to “make big bucks.” It is damn hard to make big bucks, even in the law. If you work hard enough to earn big bucks, then by god, you deserve those bucks, and you should be deeply proud of them.

*-Let me again reiterate that this is not a PLF blog, but my personal weblog, and is not endorsed or run by the Foundation.

Blogroll rule: If your blog sits idle for a month, I de-list you.

Contemplation of greatness: I picked up The Essential Stevie Ray Vaughan on the way home, as well as the DVD of the Austin City Limits concerts, which I had seen but never owned. His performance of “Tightrope” on the DVD is my very favorite of his recordings, actually. A lot better than the studio recording, which sounds quite thin in comparison. I’ve always thought he was much better in concert than in studio. What an amazing talent; how awful that he was taken from us so early.

The Essential collection is very good—contains all the best songs, including the best of his several versions of “The Sky Is Crying” of which I’m aware. But why aren’t there more live albums available? Live Alive deserves its reputation as a disappointing record. The Carnegie Hall concert is good, but not as good as the Austin City Limits performances—but they aren’t available on CD, so far as I know. The In Session recording with Albert King is really incredible. But those are the only three complete SRV live albums I know of. Otherwise you have to gather them in collections like Essential, or like the boxed set. Or am I missing something?

Judicial “activism”: Dispatches from the Culture Wars has an outstanding post on the subject. But I received a note from a Mr. Richard Feder, of Fort Lee, New Jersey, who contests my earlier post about how conservatives view the judiciary. He proposes different scenarios:

Joe: I want the government to provide a free service to me.

Richard: You’re an illegal alien. I don’t want my taxes to pay for your services. I’m going to stop you from forcing me to pay for you.

Judge Bill: Richard, I’m sorry but you don’t have the right to treat an illegal alien differently from a legal citizen. Your government must forcibly take your money to provide services to illegal aliens.

Richard: Aaargh! Unelected judges defying the will of the majority and forcing us to do something we don’t want to do

But you see what’s wrong with that. The Constitution really does prohibit the state from denying to any person within its jurisdiction the equal protection of the laws. Judge Bill is not only doing his job correctly in this scenario, but he is actually obeying the will of the majority, as expressed in their Constitution. Hamilton explains that the Constitution expresses the will of the people, while the statute law only expresses the will of the legislature, and in some cases (such as Mr. Feder’s example) those two will conflict. The Constitution cannot, he writes,

enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.... A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.... [W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.

The judiciary is not only protecting the Constitution against majoritarian passions, but is enforcing the real will of the people.

Mr. Feder continues with another example:

Joe: I want to build a retirement cottage on land I have owned for 20 years.

Federal agency: We’re going to liberalize rules so people have more choice over what they can do on their own property.

Environmentalist: I think forest lands should be left undeveloped. I’m going to find a judge to force you to adopt strict regulations which will prevent people from building in forests even if it is their own land.

Judge Bill: Feds, you must adopt rules which protect the forest from development.

Joe: Aaargh! Unelected judges taking away my freedom to use my own land!

Now, I am certainly against such regulations, but in this case, is it really Judge Bill who is at fault? Or is there a federal statute which requires the agency to adopt such regulations? Very often it is the latter. While I think people should be allowed to develop their land, the authority which stops people from doing this is not judicial overreaching, but rather legislative overreaching which is being enforced by non-“activist” judges. Perhaps the judge should declare such legislation unconstitutional, but he cannot raise that issue sua sponte, and if he did, he would be condemned for—for what? That’s right, class, for “judicial activism.”

Finally, Mr. Feder has another example:

Joe: My Congressman is proposing some legislation which would restrict my rights. I’m going to buy an ad to let my neighbors know what’s going on.

Congress: We don’t want ads saying negative things about us. We’re going to right a law preventing people from mentioning our names in ads during election season.

Joe: That’s an unconstitutional abridgment of my freedom of speech.

Judge: You are wrong, Joe. The state has a “compelling state interest” in restricting your freedom regardless of what the 1st amendment says.

Joe: Aaargh! Judges ignoring the clear meaning of the Constitution and taking away my freedom!

But this example actually backs up my argument, because what’s blameworthy about the judge’s action in this case is that he is not being “activist” enough. He is deferring to the legislative determination that it’s okay to restrict the freedom of speech. What he ought to do is protect Joe’s rights—and the actual will of the people, as expressed in the First Amendment—by not declaring that law unconstitutional. (Joe has raised the issue, so you don’t have a jurisdictional problem here.) What we need here is more “activism,” not less.

Mr. Feder concludes that

There are at least four kinds of results from judicial review:
1) preventing the majority from restricting individual freedom. (I haven’t seen much of this.)
2) forcing the majority to provide services to a minority. (I’ve seen lots of this.)
3) forcing the executive branch to issue regulations which restrict individual freedom. (I’ve seen lots of this.)
4) allowing the government to further restrict individual freedom. (I’ve seen lots of this.)

But I have never seen the judiciary actually force the majority to provide benefits to the minority. In cases involving public school or welfare payments, the courts have always said that these benefits can be refused entirely if the majority chooses—but it is not allowed to restrict wealth redistribution in an unfair manner, or to eliminate it suddenly and without warning. In fact, the Court has resolutely refused to recognize a federally-mandated right to an education, or anything like that. In some state cases, the courts have found a constitutional right to a state-created education, but this has always been on the basis of explicit constitutional language creating such a right. Of course there is always the danger that the court will find a right to welfare, but I know of no case that has ever done so. If I am wrong, please provide me with a counterexample. But so far as I know, the courts have never actually required the state to give anyone benefits, absent legislation to that effect. They have merely held that if the state does insist on giving benefits (and even conservatives advocate redistribution of wealthy by the state), it must do so equally.

Look. The simple fact is—as Roger Pilon points out so well on p. xv of this document—that “activism” is a meaningless word. What we need is neither “activism” nor “deference,” but fidelity to the American Constitution. That means that judges protect our liberty when that is Constitutionally mandated—and yes, that means “second guessing” the legislature on some occasions—and protecting the legislature’s authority to make decisions when that power is properly exercised—which will mean deference on other occasions. But to say that the judicial authority is fundamentally improper is ignorant and dangerous.

Banning door to door sales: Why? Because “small business owners in the city...feel their businesses are being hurt by [them].” Well, that’s brilliant. Let’s ban shopping malls and the Internet, too, and we can really protect the “small business owners.”

Congratulations to the city on obeying the Constitution.

Fame!: Former Freespace guest blogger Chris Atkins has started his own blog, with a suitably snooty-sounding Latin name, at Semper Reformanda.

Incidentally: You know, it’s kind of strange to call me “pro-development,” since I think if people want to let their land sit idle, that's just fine with me. If people want to purchase land and leave it alone as an environmental preserve, more power to them. A person who's truly “pro-development” would be in favor of using eminent domain for “economic redevelopment,” something I’m quite passionately against. So I think I’m more accurately described as pro-property rights.

Eric Clapton: Has a new album coming out this month—and a blues album, too! Plus, he’s got a 3-day festival coming up in Dallas; the lineup sounds so good it’s probably worth flying to Dallas for.

What you missed over the weekend: Libertarian Bookworm focused on The Two Cultures by C.P. Snow. Also, a clarification on religion and the law; more on those who want to abolish judicial review; this week’s guest blogger was introduced; and he had some choice comments on originalism.

More on gay marriage: Dispatches from The Culture Wars (an outstanding blog, by the way) has a pretty satisfactory refutation of this post attacking gay marriage. The reason I think that post noteworthy is that it really captures the real arguments against gay marriage: first, legally-recognized gay marriage “advances [what the author of the post believes is a] prima facie falsehood that they are equal,” and heterosexuals will be “compelled to see the two as equivalent.” By “they” and “the two,” the author means heterosexual marriages and homosexual marriages, and not—or at least, not explicitly—heterosexuals and homosexuals themselves. (After all, the author has been “the epitome of kindness around too many gays….”)

How does legally recognizing a private contractual arrangement “advance” the proposition that such arrangements are “equal”? How does it “compel” anyone to see such arrangements as “equal” to any other arrangements? I hate and detest the Costco corporation. I seriously consider it akin to the mafia; it is an institution which uses legalized plunder to enrich itself by stealing the most precious possessions of Americans everywhere, and I have repeatedly urged people to boycott it. Yet it is a legal corporation. So am I required to accept it as “equal” to other companies? Of course not. The legality of its corporate existence is nothing more than a formality which entitles it to certain legal benefits (limited liability and so forth), and is totally irrelevant to its moral worth.

What about the legality of publications we disagree with, or even despise? I think it is really disgusting that people would still openly advocate communism. It’s morally contemptible. Yet people have the legal right to do so. Does the legality of the publication of communist propaganda by the Daily Worker or whatnot prove that I must accept it as “equal” to the publications of libertarians whom I consider morally praiseworthy? Am I compelled to see the two as equivalent? Of course not. The legality of these publications has nothing to do with whether they are respectable.

What about the scorn people tend to have toward rich old guys marrying gorgeous dimwitted 19 year olds? When we see such things, we tend to make scornful and sarcastic remarks about the characters of the two people involved. Hollywood marriages that last for a few days—we snicker and grumble about such things. When my former girlfriend Denise Richards left me to marry Charlie Sheen, I had only contempt for them. Yet these are legally valid marriages. We are not “compelled” to see these marriages—or any other marriage—as valuable.

Society is not a thing to be shaped into a sculpture of our moral vision. Cf. 1 Karl Popper, The Open Society And Its Enemies 166 (5th ed. 1966). It is an endless and constantly evolving series of interactions between individuals based on their preferences and their rights. Nor should we confuse the state with society. See Thomas Paine, Common Sense 1 (1776). The state has a simple, peculiar reason for existing: the security of individual rights. It does not exist to shape society into a pleasant, comfortable, child-safe, freshens-your-breath and whitens-your-smile institution. Using the state to enforce your moral vision—be it through stealing the property of your neighbors, or censoring their private interactions—is a fundamental abuse of power. Yet because people have come to think of the state as a way to make society conform to their moral vision, they tend to see the legalization of new forms of living as a personal threat to their own private moral purity. This is why we hear the argument that we must never legalize X, because that would confer moral legitimacy on X.

Update: Haste and imprecision led me to express myself much too strongly in the above. Of course the morality and the legality of a thing are not wholly irrelevant to each other. But things may be legal and immoral—habitual drunkenness, for example. This is immoral, but it is not an injustice, because no third person has a right to keep someone from being a habitual drunk. The state is only properly concerned with questions of justice—acts that affect non-consenting third persons. So does the legal recognition of gay marriage constitute an injustice? The conservative argument is yes, because it somehow inflates the meaning of marriage and thus drives down the value of existing heterosexual marriages. This is much too attenuated, however, to constitute the sort of injury that the law can properly recognize. This is the point I was trying to make above—the legal validity of gay marriage does not harm others any more than the legal validity of offensive publications or the corporate existence of organizations that one detests.

“Cloning”: If you haven’t read Elizabeth Blackburn’s Washington Post article explaining how she was fired from Leon Kass’ “bioethics commission,” you should read it now. Best part:

Leon Kass has suggested that society should make decisions based on what he calls the “wisdom of repugnance.” I think this is an unreliable kind of wisdom. Repugnance should serve not as a basis for any decision, but rather as a signal for honest, critical examination of what inspired it. In some instances, repugnance may indeed hint at moral qualms that will withstand the rigors of analytical questioning. But it may also simply reflect habit or custom.

I am convinced that enlightened societies can only make good policy when that policy is based on the broadest possible information and on reasoned, open discussion. Narrowness of views on a federal commission is not conducive to the nation getting the best possible advice. My experience with the debate on embryonic stem cell research, however, suggests to me that a hardening and narrowing of views is exactly what is happening on the President’s Council on Bioethics.

Or, as Daniel Dennett once put it, we need less gasping, and more thinking.

Body parts black market: The head of the UCLA cadaver research program has been arrested on suspicion of selling body parts for medical research.

Fame!: Thanks to Rogue Slayer Law Student Movie Fan for the permalink.

Eek! Second guessing!: When Prof. Marston says “second guess,” what he means is that the court is (horror of horrors) preserving its role as a protector of individual rights against overreaching legislatures. This hysterical nonsense about “Lochner-style judicial activism” is—just as with the conservatives who keep spooking us with the same bogeyman—simply special pleading by people who want the legislature to be above the law. Marston wants legislatures to be above the law when it comes to telling people what they may and may not do with property that is supposedly theirs. The conservatives want the legislature to be above the law when it comes to telling people what they may and may not do with other consenting adults in the privacy of their bedrooms. But in the end, it’s the same thing—both sides think they have a fundamental right to tell other people how to live their lives, and they feel they have had their rights violated whenever a court has the audacity to say no.

As for inquiry into the purposes of government action, this is textually required in at least some cases, since the takings clause limits the government’s authority to take property to public uses only. But if Prof. Marston wants the court to ignore the purposes of government action, and replace that with a categorical rule of compensation for every taking of property for a public use, well, that would certainly be an improvement over what we’ve got now. See Palazollo v. Rhode Island, 533 U.S. 606, 637 n.* (2001) (Scalia, J., concurring) (“It is wrong for the government to take property, even for public use, without tendering just compensation.”). What we have now is a regime in which the government can take your property without paying for it at all, for a category of purposes—and then, in every court decision, that category is made wider and wider, by saying that such takings aren’t really takings. The inquiry into the “purposes” of government action in regulatory takings law thus actually aids the state far, far more than it does the property “owner.” If we were to embrace a serious takings analysis which really sought to compensate people for the property the government steals from them, we would adopt a single, categorical rule. See further Pumpelly v. Green Bay & Mississippi Canal Co., 80 U.S. 166, 177-80 (1871) and cases cited therein. Defenders of just compensation, such as Prof. Epstein, have long argued for such categorical, comprehensible rules, but the “Progressives” (that is to say, defenders of the legislature’s plenary power to steal property from titular owners for any number of projects that it deems to be sufficiently “public”) have denounced such attempts. See further Richard Epstein, Reflections on the Tahoe Case, in 2001-2002 Cato Supreme Court Review.

Anyway, what is the purpose of having a judiciary, if not to “second guess” the legislature? If “second guessing” is so bad, why not just simply abolish the judiciary entirely? Let’s do it. Let’s seriously adopt judicial deference as our governing standard. Whatever the legislature does is okay, end of story. How bout it?

My favorite libertarian rock song: Well, I don’t know if it’s rock, really, but it’s pop. Anyway, I think Billy Joel’s “My Life” should replace the “Star Spangled Banner” as our national anthem.

Libertarianism Rock:

Over at the Volokh Conspiracy, Juan Non-Volokh discusses libertarianism in rock lyrics:

“Of course, no discussion of libertarian-leaning bands could be complete without mention of Rush. The Canadian power trio, about to embark on its 30thanniversary tour, is arguably the most prominent libertarian band of all time. Rush dedicated an album, 2112, to 'the genius of Ayn Rand.' and penned such liberty-themed anthems as 'Freewill,' and this week’s Sunday Song Lyric, 'The Trees.' When I was younger, and into such music, I was struck by the song’s explicitly anti-egalitarian message.

There is trouble with the trees,
For the maples want more sunlight
And the oaks ignore their pleas.

The trouble with the maples,
(And they're quite convinced they're right)
They say the oaks are just too lofty
And they grab up all the light.
But the oaks can't help their feelings
If they like the way they're made.
And they wonder why the maples
Can't be happy in their shade.

There is trouble in the forest,
And the creatures all have fled,
As the maples scream ‘Oppression!’
And the oaks just shake their heads.

So the maples formed a union
And demanded equal rights.
'The oaks are just too greedy;
We will make them give us light.'
Now there's no more oak oppression,
For they passed a noble law,
And the trees are all kept equal
By hatchet, axe, and saw."

I am a big fan of the Progressive Rock genre. This includes not only Rush, but also bands like Yes, Genesis, Emerson, Lake, and Palmer, and King Crimson. I am glad to see that Rush is back on tour. I just saw my favorite progressive rock band Kansas at the Patriots Theater at the War Memorial in Trenton, New Jersey. I hope to see both Yes and Rush this year.

Here is Neal Peart’s (Rush’s drummer, and Rand-inspired lyricist) classic line on love from the song Ghost of a Chance:

I don't believe in destiny
Or the guiding hand of fate
I don't believe in forever
Or love as a mystical state
I don't believe in the stars or the planets
Or angels watching from above
But I believe there's a ghost of a chance we can find someone to love
And make it last...

Clarifications: A few days ago I asked a conservative correspondent if he thought that special exemptions from general laws, extended to people on religious grounds, violated the Establishment Clause. He replied “No. The Everson line of jurisprudence is a horrendous misinterpretation of the original meaning of the Establishment Clause. It, along with Smith, has rendered the Free Exercise Clause virtually meaningless.” Now, aside from the hyperbole, there is a major problem with this answer. Can you spot it?

Two hints: first, the reference to Everson v. Board of Ed., 330 U.S. 1 (1947), and second, the reference to Employment Div. v. Smith, 494 U.S. 872 (1990). Neither of these cases are relevant to the question I asked.

Everson is an Establishment Clause case, but it says that special benefits conferred to people on the basis of religion violate the Clause—it does not speak at all about exemptions from general laws extended to people on the basis of religion. This is the difference between giving a person $10 because he’s Catholic (a special benefit) and taxing everyone in the state except for this one guy because he’s Catholic (an exemption from a general law). In Everson, the Supreme Court held that the state could, consistent with the Establishment Clause, “spend[ ] taxraised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools…. [The First] Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them…. [Funding for school buses] does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.” 330 U.S. at 17-18. Although in dicta the Court said that direct aid to religious institutions would probably violate the Establishment Clause, it said nothing about whether the Establishment Clause allows the state to give some people a pass with regard to general laws simply because of their religious views.

Even less relevant to my question is Smith. That case was not an Establishment Clause case at all. There, the Court said that special exemptions from general laws are not required by the Free Exercise Clause. That case does not say anything at all about whether the state is allowed to exempt religious folks from the laws that apply to everyone else; it simply says that the state is not required to do so.

I wouldn’t mention this except that this sort of confusion and mixing of categories seems so common among the religious conservative folks. (Not long ago, another conservative friend complained to me that Locke v. Davey was another example of the evils of the Lemon test!) These folks seem so eager to portray themselves as the sweet, innocent victims of a cabal of atheist federal judges that they lump every case they don’t like together in one big mass, and fail to make the sorts of distinctions that a) would aid serious analysis and b) would reveal that there really is no such cabal.

Now, why is it that when I asked about the Establishment Clause, my correspondent replied with references to the Free Exercise Clause? I think it suggests a fundamental problem in the religious conservative outlook, as I’ve mentioned before. Libertarians say that people must leave each other alone, and that’s it—they have only “negative” rights: the right not to be interfered with: they may exercise their religion as long as they leave me alone, and they should expect no special favors from me, in their exercise of their right. But conservatives, no less than liberals, look toward “positive” rights—they want the right to things. In this case, my conservative correspondent believes that his Free Exercise rights are violated by not being given special favors on account of religion. If there’s a law against peyote, and his religion says he should be allowed to smoke peyote, then the Free Exercise Clause demands that he receive a special dispensation. (That’s Smith.) And if he doesn’t receive this special favor, then he’s being oppressed. Those of us on the other side see such special dispensations as at least tending toward an Establishment of religion. And hence the common misconception that the two clauses are in tension.