Positive Liberty

Brayton tipped me off to this article about Paul Cameron. It’s quite good. He is still disseminating false and misleading information about gays in the form of schlock studies. No reputable peer reviewed journals will publish his work so he finds some penny-ante journals or groups with legitimate sounding names (such as “American College of Pediatricians” and “Psychological Reports”) but who in reality are the equivalent of what mail-order degree colleges are to real colleges. And gullible members of the religious right then cite his work as if they have “real ammo” against gays.

It boggles the mind. Cite Kinsey and many religious conservatives will shriek about the problems with his work, but then they will suggest replacing Kinsey’s work with the “research” of Paul Cameron and Judith Reisman. As I have said, this reminds me of what Jesus said about being concerned with the mote in your neighbor’s eye while ignoring the log in your own!

My favorite part of the article:

Cameron’s work is controversial even among conservative groups. For example, the Traditional Values Coalition claims to speak for 43,000 churches. For three years, the coalition has quoted Cameron’s studies on its website in an article headlined, “Report Shows Homosexual Foster Parents Apt To Molest Children,” and has told its membership to “read and distribute Dr. Cameron’s report.”

But when The Boston Globe asked the Traditional Values Coalition last week about Cameron, the group responded within minutes by removing all references to Cameron from its website. The group’s spokeswoman, Daniella Lopez, said Cameron’s research had been “mistakenly” put on the website. She would not say why the group thought it was a mistake to publicize Cameron’s research.

Brian Radzinsky at Stalinist Orange comments on my post about the term “right of privacy” by saying that “Rights are sets of permissions, not permissions in and of themselves. They encompasses states of nature that lead to definitions of actions that spring from those states.” I’m not really sure I understand this. I think it is extremely important to distinguish rights from permissions. Permission implies that your freedom to act is granted by an authority which may revoke that freedom at any time for its own reasons. This is precisely the opposite of a right, which is a freedom that originates in your self, and which you may exercise for any reason or for no reason at all.

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As far as I am concerned, the most beautiful piece of music ever written is the Etude in D-sharp minor, Opus 8 Number 12, by Alexander Scriabin (1872-1915). Scriabin’s early works for piano are more exquisite than anything Chopin, Rachmaninov, or Tchaikovsky ever wrote. If you’ve never heard of Scriabin, here’s some biographical information, and if you’ve never listened to his works, I recommend the Complete Etudes by Chitose Okashiro. (I have Scriabin etudes by perhaps a dozen different performers, and best of all—even better than Horowitz—is Okashiro.) I also very strongly recommend the first volume of his Preludes, available in a very cheap and very good edition on the Naxos label.

Scriabin, like Rachmaninov, was an uneven composer, who wrote some astonishingly bad music. In his later career, he began writing atonal, modern crap, as he slid into megalomania and insanity. But his early work reaches the greatest heights of artistic expression that the romantic movement ever produced. This is the music of pure ecstasy; it soars effortlessly to the sun. Even in quiet, peaceful moments, there is the untroubled elegance of perfection. I do not know the words to describe how beautiful this music is. Scriabin’s Etudes and Preludes are simply genius itself.

(The works are major feats for performers as well. Not long ago, I bought the sheet music of the etudes for a friend who plays the piano professionally. He went away with it and a few minutes later came back with wide eyes. “Do you see this symbol?” he said. “Yeah,” I replied (I don’t know how to read music). “Only very cruel composers put this symbol in their music!” he said. Listen to the Etude in C-sharp minor Op. 42 No. 5 and you’ll hear how one must be practically an acrobat to perform it. Okashiro flies through it like second nature.)

I have never liked the phrase “right to privacy.” It is redundant. All rights are a right to privacy.

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Given the interpretation of the Ninth Amendment that the PL bloggers all seem to endorse, it follows either that a right to privacy is directly a part of the Ninth’s unenumerated rights–or else that we do not have a right to privacy at all. Post-classical liberals make a vulgar error when they found this right on the “emanations and penumbras” that emerge from various sections of the Bill of Rights. Accordingly, Griswold and Roe were rightly decided as to their outcomes, but wrong in their legal reasoning.

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Feddie at Southern Appeal says that in his view, the Ninth Amendment “protects the widely accepted individual rights existing at the time of ratification, but not enumerated in the Constitution. This does not mean that the amendment incorporates all of the common law in existence in 1791; it merely incorporates aspects of the common law (e.g., the right of parents to raise their children as they see fit).”

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Russell Roberts at Cafe Hayek points out an absurd example of the commodification of communism. If, like me, you find such things troublesome, you might consider contributing to the Victims of Communism Memorial Foundation, which is trying to build a Washington, D.C. monument to the victims of the most gruesome ideology in history.

A long time ago, there was the Walkman.

The Walkman had its heyday when I was far too young to buy one of these miraculous devices. My parents informed me that it would surely cause deafness, and besides, it’s illegal to copy music. Continue Reading »

Rick Garnett has a pretty profound post on government endorsing the “proper kind of religion.” His post illustrates two competing schools on religion and government in the Enlightenment thought that founded America. On the one hand we have Madison’s ideal view that government in no way should ever take cognizance of religion, a very high and lofty ideal, one in which Madison, as a public official did not always live up to. On the other hand, we have the view posited by Washington and Adams, arguably a more dominant view than Madison’s, that because religion is important for virtue and keeping the civil order, government can be more involved in promoting religion in general, so long as government endorses “the right kind” of religion. Continue Reading »

My review article, Freedom And The Burden of Proof, in the current issue of the Independent Review, is now available on SSRN.

Check out this all-too-typical example of how government treats business in the Golden State. Is it any wonder that we are in such a fix? (Thanks to Debbie for the pointer.)

Here is a new article by D. James Kennedy, featured by of course WorldNutDaily, on our Christian Nation founding.

Kennedy is promoting his special on the matter that airs this weekend on The Coral Ridge Hour, and in August, nationally on different “secular” stations.

Note that Kennedy goes far beyond the mere (legitimate) argument that modern court Establishment Clause cases or the ACLU’s ideal vision of Separation of Church & State are not consistent with original intent. Rather Kennedy argues that America was founded to be a “Christian Nation” in a public/governmental sense (the exact opposite of what the Treaty of Tripoli states), and that the principles that found our public order — those in the Constitution and the Declaration of Independence — are taken straight from the Bible. Anyone familiar with the real history of our Founding knows this to be utter nonsense.

I’ve dealt with Kennedy and his nonsense on my blog here, here, here and here. And look for an essay refuting his weekend special next week on this blog.

I am truly flabbergasted by a decision I just read out of the District Court in Hawaii. Not by the outcome, which is obviously correct, but by the cajones it requires to make the argument that the plaintiffs made.

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Radley Balko has a Fox News opinion piece out today that should inform our discussions of the Ninth Amendment. His topic is jury nullification, a subject with which all Americans should be more familiar:

Now that the Supreme Court ruled that federal prosecutors can continue to arrest medical marijuana patients, and given the Drug Enforcement Administration’s continued prosecution of pain patients and the doctors who treat them, we’re likely to see more outrages like those perpetrated against Ed Rosenthal [convicted of growing marijuana--which he did only at the behest of the Oakland, California city government] and Richard Paey [convicted of reselling prescription opiates, despite the complete and acknowledged lack of evidence that he ever did so; the law in question declared individuals summarily guilty of resale if they possessed more than a given quantity of the substance].

A common question I get from people disturbed by these kinds of cases is, “What can we do?” Well, here’s one thing the average citizen can do: Serve when you’re called to jury duty, and while there, refuse to enforce unjust laws. If a defendant is guilty of harming someone else, certainly, throw the book at him. But if he’s guilty of violating a bad law, or if you feel the law has been unjustly applied to him, by all means, come back with “not guilty,” no matter what the judge, the prosecutor, or the evidence says.

If you find a law unjust, you are under no obligation, whether moral or otherwise, to convict. Just to be safe, I would read up on the landmark court cases establishing nullification. Some of them–the trial of John Peter Zenger in particular–are among the most important episodes in American law. Erowid (which will get further discussion in a forthcoming post) has an excellent collection of links about nullification, and–as koomis blogging hasn’t really caught on–these materials form today’s required reading.

Some time ago I blogged about the homebrewing of traditional Asian alcoholic beverages. Back then I noted that sake and its relatives were by no means the only game in town. There was also koomis, about which I now have some intriguing new information. Continue Reading »

Dean Esmay has a post here with a political philosophy question coming out of my favorite TV series, Battlestar Galactica. (Thanks to the Unofficial Battlestar Blog for the pointer). Here are my thoughts on the legitimacy of arresting President Roslin.

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I’m on the ReligionLaw listserv moderated by Eugene Volokh, an email list of dozens of law profs around the country with the discussion focused on areas where religion and law intersect. Yesterday a discussion kind of veered off that subject and into the 9th amendment and libertarian legal theory, until Prof. Volokh herded us all back onto the ranch. But I think the way the discussion went before it stopped is indicative of a real split between libertarian and conservative thinking. The discussion was primarily between myself, Rick Duncan (a Nebraska law professor) and Sam Ventola (a Denver attorney). It began with the two of them saying that one can be a libertarian and a social conservative at the same time, which I didn’t bother to dispute simply because such terms can be used in so many different ways. I jumped in after Duncan said that he was a libertarian because, “I strongly support the liberties (including the economic liberties) expressly contained in the written Constitution.” And Ventola said:

Anybody, not just a libertarian, can contend that the government should support certain liberties, but admit that these liberties are not necessarily protected by the Constitution. So, such a person (if he or she is a strict constructionist) would support Constitutiional decisions which protect rights actually located in the Constitution, and support legislation to protect other liberties.

As a libertarian myself, I disagree strongly with this and consider it to be the antithesis of an originalist or “strict constructionist” argument. We must remember several things here. First, that the entire purpose of the bill of rights was to protect liberty from democracy – to insure that no majority, no matter how large, could violate the rights of individuals. Second, that there was a raging debate over whether such a bill of rights was a good idea because, many of the founders argued, if you enumerate a list of specific rights, future governments will presume that anything not specifically enumerated is fair game for the government – i.e. the majority – to regulate or prohibit or do with as they will. All of the founders, as near as any historian can tell, agreed that this would be a bad thing because all of them agreed that no list of rights could possibly be exhaustive. Madison came up with the 9th amendment as a means of avoiding this negative outcome. On that much, we should all be able to agree…
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Ampersand of Alas, A Blog has a roundup on the harsh conditions that Iraqi women are now facing. Among other things, women who have never worn the veil in their lives are now being forced to do so; the fundamentalists punish failure with mutilation or death. As I have written before,

What all of this shows is the terrible mistake of fighting for democracy in the first place: Would that we had fought instead for individual rights, for freedom of conscience, and for women’s autonomy, all of which are far more important than the democratic choice of which intolerant thugs get to run a certain hostile country.

But given the overwhelming support for various forms of thuggery among the Iraqi electorate, we’ve got no choice but to define success downward, until whatever we end up with can in some fashion be called a success. Americans always like to succeed, and when success gets really hard, they change the rules of the game.

Yes, it’s a war, and yes, bad things will happen to everyone in a war, including women. But I have little enthusiasm for a war that brings democracy without protection for individual rights. The true measure of success in Iraq won’t be whether we have crushed the insurgency; it will be whether we do something more than trade one tyranny for another.

Check out this post by our own Ed Brayton about Judith Reisman and her latest hair-brained idea.

Reisman, if you do not know, is probably the most vocal critic of Alfred Kinsey. It’s a mantra among many religious conservatives that Kinsey’s studies are flawed, if not complete junk. I’m completely open minded to fair criticisms of Kinsey (for instance, I don’t think that a full 10% of society are gay; though I’m not sure if Kinsey claimed that either).

But when you look at most (nearly all?) criticisms of Kinsey from social and religious conservatives, they inevitably seem to rely on Reisman’s work as a primary source. The problem is that her work is inherently incredible. She’s a complete wacko and a crank. Whatever the problems with Kinsey’s work, I guarantee you the problems with her work are far worse. Criticizing Kinsey by relying on Reisman’s work…it reminds me of what Jesus said about being concerned with the mote in your neighbor’s eye while ignoring the log in your own.

So how bad is Reisman’s work? Check out this link that Aaron left in the comments section at Dispatches.

Below, Kuznicki asks whether we would be willing to allow someone to kill us quickly and painlessly, in exchange for having an exact duplicate (including our memories) created and given ten million dollars.

This is quite reminiscent of two short stories by my favorite writer, John Varley. In his “The Phantom of Kansas”—recently reprinted in his new collection, The John Varley Reader—the main character is having his memories recorded to be stored away in case of an accident, whereupon a cloned body will be implanted with the memories up to that point. He goes to sleep during the operation—and the next scene is him waking up to be informed that he is a copy. In “Overdrawn At The Memory Bank,” (also in the Reader) the same technology is used to put a the main character’s mind into an animal, as a vacation, but then his body gets lost.

I won’t ruin the stories by saying what happens. As I’ve said, Varley is my very favorite writer. Buy the Reader today.

(Varley has a new novel, Mammoth, just out, but I will probably review it at a later date, so I won’t talk about it just now.)

Oh and my answer to the question? I might do it. Heck, I do something very similar every second of every day, as do we all.