Positive Liberty

I figure if you let yourself have a vice and be addicted to some substance, it might as well be this one.

The California State Senate Judiciary Committee has given a negative report to SCA 15, the proposed amendment to the State Constitution to forbid the abuse of eminent domain. It held onto SCA 12, a meaningless measure designed to fool people into thinking eminent domain abuse is being fought, for further consideration. It approved SB 1162/AB 1026, a bill which would impose a two-year moratorium only on condemnations of “owner-occupied residential property,” and require bureaucrats to write a report about eminent domain, and then let them go right back to doing the same thing, hoping people forget about the issue.

Clapton’s new album Back Home has a more even feeling than Reptile, which had two good songs and a lot of crap.
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An important message from the Castle Coalition:

Tomorrow, August 30, the California Judiciary Committee will vote on Senate Constitutional Amendment 15 (SCA 15), the Homeowner and Property Protection Act. If it becomes law—through a vote by the legislature and a vote by the general public—this amendment will protect all home and business owners throughout the state from the abuse of eminent domain for private commercial development. It is crucial that the Committee approve the amendment so that the full legislature and the people will have a chance to enact it. If you are interested in the plight of California home and small business owners, it’s vitally important that you contact the members of the Judiciary Committee today and urge them to approve SCA 15.

SCA 15 requires that property taken by eminent domain be owned and occupied by the government entity taking it. It continues to allow condemnations for public utilities and railroads but otherwise flatly prohibits eminent domain for the benefit of private parties. This is the best legislation in the entire country to address the problem of eminent domain abuse that has been introduced since the Kelo decision. If enacted, it will not only protect Californians, but will also serve as an important reform model in other states. There is competing “moratorium” legislation that is being touted by some as a significant reform, but that bill only protects owner-occupied residences, and thus leaves thousands of people vulnerable to eminent domain abuse. Churches, small business owners and tenants, including families who are long-term residents of apartments and other rental homes, will find no protection under the moratorium bill. There are also other proposed constitutional amendments that the committee may consider, but these leave the door wide open to eminent domain abuse.

Please contact the members of the Judiciary Committee as soon as you can and tell them that you support SCA 15 and that it, not the “moratorium” bill or other watered-down constitutional amendments, is the way to accomplish real reform of eminent domain laws in California. SCA 15 has a strong chance of being passed in a vote by the general public; it should not die in committee.

The contact information for the Committee members is here.

Joseph Dunn, Chair: 916-651-4034
Bill Morrow, Vice-Chair: 916-651-4038
Dick Ackerman: 916-651-4033
Gilbert Cedillo: 916-651-4022
Martha Ecutia: 916-651-4030
Liz Figueroa: 916-651-4010
Sheila Kuehl: 916-651-4023

The text of the amendment is available here.

If you are in Sacramento, the meeting is open to the public and we’d urge you to attend it as well—and be sure to wear any t-shirts or stickers opposing eminent domain abuse. It will be in Room 4203 of the State Capitol Building.

Call today and have your voice heard. We thank you for your help.

Best wishes,
Steven Anderson
Castle Coalition Coordinator

Several people sent me the Jack Balkin article about living constitutionalism, and asked my thoughts. The problem with this debate, I think, is the large population of straw men and red herrings that can confuse any person trying to see this thing straight.

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My article on eminent domain in California has been quoted in a law review article in the Pacific Rim Law And Policy Journal, the subject of which is land reform in China. The passage reads:

The ideological dilemma plaguing China today is that enforcing property rights of the type recognized in the United States in effect provides for “natural restitution” of land. In other words, wholesale adoption of the U.S. system would force China to recognize more than just use rights, but also rights in the land itself. In turn, this would require the governing regime to collapse and streamline the “bundle of rights,” and pave the way for individuals to request return of property nationalized by the State. Such a path toward privatization of land would call into question the very Marxist roots underlying Chinese society and Party legitimacy.

A shift in reform efforts, to focus on the core of the Party’s mandate—service in the interest of the people—would not undermine the rights movement. To the contrary, rights are significant precisely because they allow individuals to participate and associate in the deliberative process. Under a republican theory, which formed the basis of the American Revolution and Lockean liberalism:

[T]he power to take property for public use rests, not on the government’s right to exact support from subjects without their consent, but instead on the rights of all the people in the society. The majority may rightfully do only what the people can rightfully do unanimously.

Shifting the focus of reform to incorporate a stronger theory of agency into eminent domain jurisprudence would reaffirm the relevance of the “whole people,” while at the same time allowing the Party to effectively recapture legitimacy and quell the social unrest stirred by recent public land scandals. What this new theory requires is a strengthening of land administration to distinguish between government acting in the public interest, to carry out its police powers, versus government acting in self-interest, to profit from back-door transactions. Only where the government is genuinely acting in the public interest should it enjoy the powers and immunities inherent in its sovereignty.

Pamela N. Phan, Enriching The Land or The Political Elite? Lessons From China on Democratization of The Urban Renewal Process, 14 Pac. Rim L. & Pol’y J. 607, 648-49 (2005).

Needless to say, this is absurd. The “whole people” has no legitimate authority to “administrate” land—a euphemism for taking land away from people who have earned it and giving it to people who do not, or for forbidding people to use their land in the ways they wish. More importantly, rights are not “significant” because they “allow” people to “participate in the…process [of telling other people what to do with their lives].” They are significant because they allow people not to “participate” in any process. You don’t need rights to agree. You do need rights if you want to disagree. It is not conformity, but non-conformity that makes rights so precious.

In the view of the American Revolution and of Lockean liberalism, one does not have any fundamental right to “participate” in any “process” of government—quite the opposite. One gains that participatory authority only by permission: that is, by the consent of the governed. Because all men are created equal, no person has any inherent right to govern another person, but must ask that other person for permission. Thus, there is no such thing as “inherent sovereignty” in the view of Lockean liberalism—all sovereignty is derivative from the equal rights of the people who make up that society. So to participate in the “process” is not a right—but to be free from the wrongful acts of government (no matter how “participatory” that government is)—is a right. And that is the right that the Chinese government squarely and enthusiastically violates every day of its existence.

The reports from New Orleans are chilling to say the least, and I’m sure I speak for everyone at Positive Liberty when I say to our readers in the New Orleans area, What the hell are you doing reading a blog? Go get in a shelter or something!

I went through a hurricane once, sort of. I and my parents were traveling south toward Vicksburg, Mississippi in 1995 when (of all names) Hurricane Erin began threatening New Orleans. We knew that no hurricane had ever hit the city, and there was a great likelihood it would veer north and hit some other place, but at sunset we had to decide whether to continue on, and we decided not to. Directly east from Vicksburg, halfway through the state is Meridian, Mississippi, a lovely little town, and we headed that way through rain the like of which I’ve never seen. It was like a firehose spraying on the windshield, and the wind buffeted the car in a way frightening even to someone from Rialto, California (birthplace of the Santa Anas). When we finally found what I think was the last hotel room in Meridian, we turned on the TV only to hear the weather channel person say that the hurricane had swerved north from New Orleans and was headed directly for Meridian. Fortunately for us, it broke up right over our heads and we experienced no significant damage—just gorgeous sunsets for the rest of the week. Now, by that time it was no longer even technically a hurricane, so I can only imagine what the weather must be like in New Orleans right now. News pictures certainly don’t capture it.

Over the last few years, a bizarre situation has been going on here in Michigan. In 2003, a philanthropist named Robert Thompson offered to spend $200 million to build 15 charter schools in the city of Detroit, each serving 500 students, with a guarantee that each one would graduate at least 90% of its students. That plan required approval of the state legislature and in late 2003 they had reached a deal to pass a bill that allowed this to happen, but the Detroit teacher’s union called a one-day strike and marched on the state capitol to protest this plan. As a result, the Detroit mayor and Governor Granholm both pulled their support of the bill and it collapsed.

Detroit public schools are among the worst imaginable. Jack McHugh of the Mackinac Center for Public Policy gives some of the shocking facts, quoting the Standard and Poor’s School Evaluation Service report on Detroit schools:
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Jeff Jacoby’s recent column argues, using a real life incest prosecution example, that there is no principled way such prosecution could survive Lawrence’s holding.

The case Jacoby cites is interesting. It involved consenting adults — Allen, 45, Pat, 30 — who didn’t meet until Pat was 18. Right there a key rationale for incest laws is missing from this case: Incest is rarely consensual and adult; it invariably involves the abuse of minor children living in the home. It is far harder to make a moral case against incest if this element is missing. But the second legitimate rationale for incest prohibition was indeed present in this case: The couple had four children (and as I’m sure all of us are aware, the argument is incest is bad for the species because inbreeding heightens the chances for biological defects). Continue Reading »

Daniel Dennett, a man I consider one of the half dozen or so most brilliant thinkers on the planet, has an op-ed piece in today’s New York Times about “intelligent design” called Show Me The Science. He makes essentially the same argument I have been making on my blog for nearly 2 years now:

The focus on intelligent design has, paradoxically, obscured something else: genuine scientific controversies about evolution that abound. In just about every field there are challenges to one established theory or another. The legitimate way to stir up such a storm is to come up with an alternative theory that makes a prediction that is crisply denied by the reigning theory – but that turns out to be true, or that explains something that has been baffling defenders of the status quo, or that unifies two distant theories at the cost of some element of the currently accepted view.

To date, the proponents of intelligent design have not produced anything like that. No experiments with results that challenge any mainstream biological understanding. No observations from the fossil record or genomics or biogeography or comparative anatomy that undermine standard evolutionary thinking.

Instead, the proponents of intelligent design use a ploy that works something like this. First you misuse or misdescribe some scientist’s work. Then you get an angry rebuttal. Then, instead of dealing forthrightly with the charges leveled, you cite the rebuttal as evidence that there is a “controversy” to teach.

Note that the trick is content-free. You can use it on any topic. “Smith’s work in geology supports my argument that the earth is flat,” you say, misrepresenting Smith’s work. When Smith responds with a denunciation of your misuse of her work, you respond, saying something like: “See what a controversy we have here? Professor Smith and I are locked in a titanic scientific debate. We should teach the controversy in the classrooms.” And here is the delicious part: you can often exploit the very technicality of the issues to your own advantage, counting on most of us to miss the point in all the difficult details.

William Dembski, one of the most vocal supporters of intelligent design, notes that he provoked Thomas Schneider, a biologist, into a response that Dr. Dembski characterizes as “some hair-splitting that could only look ridiculous to outsider observers.” What looks to scientists – and is – a knockout objection by Dr. Schneider is portrayed to most everyone else as ridiculous hair-splitting.

In short, no science. Indeed, no intelligent design hypothesis has even been ventured as a rival explanation of any biological phenomenon. This might seem surprising to people who think that intelligent design competes directly with the hypothesis of non-intelligent design by natural selection. But saying, as intelligent design proponents do, “You haven’t explained everything yet,” is not a competing hypothesis. Evolutionary biology certainly hasn’t explained everything that perplexes biologists. But intelligent design hasn’t yet tried to explain anything.

To formulate a competing hypothesis, you have to get down in the trenches and offer details that have testable implications. So far, intelligent design proponents have conveniently sidestepped that requirement, claiming that they have no specifics in mind about who or what the intelligent designer might be.

As usual, Dennett is on the mark. The essay is well worth reading in its entirety.

This afternoon I will disassemble the desk from which I have blogged for the last year and a half.

Following this post, I will be offline for an unknown amount of time while I move into the new place. I have a longish post on Dennett that’s nearly ready to go, but it will have to wait for my return. Likewise to personal e-mails, administrative PL updates, and the like. My apologies in advance if you try to contact me during this time.

When I wrote about ID logically pointing in the direction of super-advanced natural alien visitors as the “designers” as much as if not more so than the God of the Bible, I thought I was making an original point. Compare what I wrote with Michael Shermer’s nearly identical thoughts on the Huffington Post (scroll down to the second half of his post).

Of course I wrote my post before Shermer. But then again, Shermer was just reiterating a point he had argued in 2002. Continue Reading »

I just finished Eric Foner’s Short History of Reconstruction, which at only 260 pages is aptly named. I was interested in the analogy between the Reconstruction period and what’s going on in Iraq right now—an analogy I think pretty strong. In both periods, a reforming zeal dissipated into a desire to “bring the troops home,” while many argued that the local, formerly oppressed population was simply incapable of self-government. Meanwhile, bands of dispossessed thugs, seeking to restore the former “way of life” used brutal acts of terrorism to disrupt the attempt at reform.

Reconstruction failed in the south for many reasons, of course, not the least of which were the Johnson Administration’s outright sabotage, and the Grant Administration’s indifference. By the time self-rule was restored to southern states, Reconstruction had already been more or less abandoned by the federal government, which alone was capable of putting down the southern insurgency. There were surprising gains, of course, including even black senators and governors in southern states. But these were almost entirely given up in the years after 1875, as fundamentalist, traditionalist, terrorist rule was restored. What’s sadder is that what gains were made in Reconstruction were due to advantages lacking in Iraq: a common religion, a common language, a common national heritage. Immediate withdrawal of American troops from Iraq, even given a good constitution (which I think unlikely) would be a far greater disaster for Iraqis even than the withdrawal of federal troops from southern states.

I also recently finished 1776 by David McCullough. I’ve never been a great fan of his writing—I thought John Adams was superficial in places, and lacking in objectivity. 1776, I was sorry to discover, focuses almost exclusively on military history, a subject that interests me little. I think the most interesting events of 1776 occurred in Philadelphia and Williamsburg (not to mention, Scotland). The tribulations of Washington and his army are, of course, much worth remembering, but to spend almost no time on the Declaration of Independence, and absolutely no time on the Virginia Declaration of Rights or any of the intellectual accomplishments of that year is pretty disappointing. Still, I found the description of the battle of Brooklyn Heights particularly well written—suspenseful and intriguing. And I enjoyed McCullough’s speculation that Nathan Hale was part of a covert plan to burn New York—something I’d not heard before. Still, if you’re looking for a good, readable, informative book on the American Revolution, you’re much better served reading Langguth’s Patriots, one of the best books I’ve ever read.

Some interesting thoughts at Hat Full of Hollow.

Here is a translation (in pdf) of Iraq’s on-again off-again draft constitution. Given recent developments, I am fairly sure it is a couple of days out of date, but it is apparently the best we have to go on.

According to the Associated Press, there is evidently at least one significant lacuna in the BBC translation; the AP version of the document begins with the following words

In the name of God, the Compassionate, the Merciful

“Verily we have honored the children of Adam” (Quran 17:70)

which the BBC version does not include.

Comments are welcome; more analysis to follow.

Do be sure to check out Positive Liberty’s sidebar, which features the reading material of some of the smartest classical liberals on the web. As for myself, I am nearly finished with Daniel C. Dennett’s Freedom Evolves, and a post about some aspects of the book will be arriving in the next couple of days.

I spoke yesterday at Chapman Law School, ostensibly about Lochner, but actually about all sorts of issues involving natural rights theory and the law. Of course many people were interested in how natural law relates to the issues of gay marriage or even homosexuality in general. Two people in the audience in particular made the argument that homosexuality is not natural, because it doesn’t result in procreation, and because “the parts don’t go together.” Since these things aren’t natural, one cannot therefore have a natural right to engage in homosexual behavior (let alone get married to a person of the same sex).

The problem with this argument is an equivocation over the word “natural.” When we talk about “natural” rights we aren’t referring to biological nature. That should be obvious. If we were, we would be committing what Daniel Dennett calls the “nudist fallacy”: people are born naked, therefore it is “unnatural” for them to wear clothing. This doesn’t follow, as Dennett points out, because there is nothing more natural for human beings than to wear clothing. It is a supremely natural thing for us. It occurs in every culture of which we are aware, and it is rather silly that we do things like draw naked human beings on a plaque intended for aliens to find, because virtually no human being that an alien is likely to encounter looks like that. Clothing is as natural for us as are the shelters of a hermit crab. It is human nature for us to take biology and turn it to our own purposes—to eat, not for nourishment, but for celebration or for worship; to run, not for escape, but for exercise or competition; to have sex, not for procreation, but to express love. To kiss for…well, biological nature has no justification for kissing at all. But these things are natural for human beings in the relevant sense, and it is in this sense that we use the word “natural” in the phrase “natural rights”: that is, man’s nature as a rational being, and the things that flow from his rationality. The nature of our humanity—something which is not in our DNA, but in our minds. I expand on this more in my article, Liberal Originalism, 27 Harv. J.L. & Pub. Pol’y 489, 522-32 (2004).

These thoughts occur to me because of this silly article about humans being on display at a zoo in London. Notice the picture, in which two women are apparently grooming another man and woman, while “clad in bathing suits and pinned-on fig leaves.” The reason this is so silly is that if the point of a (good) zoo enclosure is to capture as best you can the feeling of the animal’s natural habitat: you put the polar bears in a fake arctic surrounding, and the tigers in a fake savannah. But the natural habitat for humans, and the natural appearance of humans, is not sitting around in a zoo in fig leaves. We don’t wear fig leaves: it’s not our nature. Our nature is to produce culture, and the things attendant upon it. A true zoo enclosure of humans should feature something like a farm or an office or a factory or a living room. That’s natural for us.

I never understood why statists (non-libertarians), on both the left (those who support the “nanny” state) and the right (the social cons who support the “granny” state) don’t call for and demand the licensing of parents.

If I understand the rationale for licensure of various things — drivers license, gun license, professional licenses — it goes something like this: There are certain thing which can greatly affect the safety and well being of the public. They take special care and demand very high levels of responsibility. As such, if we didn’t license drivers, for instance, the roads would be less safe and the public would be in danger…if we didn’t license medical doctors, medical care would be less safe and the public would be in danger…and on and on.

But still (and as Sandefur can attest) many areas of life where vital public health and safety concerns aren’t on the line require licensure. You want to work in a hair and nail salon, you need a license. You want to get that deck built on the back of your house, you need a license.

But for those “important” licenses like driving and medical surgery, I think the key word is “responsibility.” There are certain acts which inherently require responsibility and licensure is a way in which the public or the government can require that you meet certain minimum standards. Okay. So what then is the one thing in life that most any ordinary person can do, that without question or possibility of debate, requires more responsibility than any other thing? The decision to have and raise a child.

So why then don’t we license that? One question would be, how would we do so? Simple: Require every female resident of childbearing age to have Norplant implanted, which doesn’t get removed until she and her spouse get a license. What would the requirements of the license be? For this, I would turn to William Galston, a moderate lefty-Democrat who worked for Bill Clinton (James Q. Wilson citing Galston):

[Y]ou need only do three things in this country to avoid poverty—finish high school, marry before having a child, and marry after the age of 20. Only 8 percent of the families who do this are poor; 79 percent of those who fail to do this are poor.

Or we could adopt some variation thereof: For instance, only married couples who can demonstrate they are economically able to support the baby would get the license. If they are under 20 or didn’t finish high school, they could have one. And it’s not just poverty that is avoided by this. Educational failure and violent crime also accompany out of wedlock teen births.

Obviously, as a libertarian I don’t support this. But I do believe that it’s hard if not impossible to justify our system of government mandated licenses for the so many areas of life which clearly involve less responsibility than the decision to beget a child.

I’m not much of a Michael Moore fan, but I thought his movie Bowling for Columbine had some interesting and thought provoking segments in it. Yes, a lot of it was just pointless grandstanding, like taking the ammunition back to K-mart and his interview with Charlton Heston. But I thought the movie hit on something very important when discussing how the media’s coverage of violent crime had gone up some 500% (I forget the exact figure) while actual violent crime had gone down significantly over the last two decades. With that in mind, take a look at this USA Today article about sex crimes against children. Every major case of this sort, from Polly Klass to Jessica Lunsford gets saturation-level media coverage, to the point where we are absolutely bombarded with it on every single TV station, every talk radio show, every newspaper. But that doesn’t square with the reality:

Government figures show the rate of sexual assaults against adolescents ages 12 to 17 plunged 79% from 1993 through 2003, and the number of substantiated sex-abuse cases involving kids of all ages fell 39% in the same time period. Finkelhor, who has analyzed the data, sees multiple reasons for the decline: Greater incarceration of offenders, more therapy and use of psychiatric drugs, economic improvement in the 1990s and heightened public concern.

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Ali Sami’s hands were flying around his photocopying machine like a short order cook’s. With customers waiting in his small Baghdad copy shop he was not about to pause for anything, especially not a question about Iraq’s new draft constitution.

“What constitution are you talking about?” Mr. Sami, a Shiite, said sardonically. “We are fed up with this thing! We would prefer to solve our problems first, such as electricity, water and security. How come they gathered to approve the constitution while Iraqis are slaughtered?”

How indeed. But this sort of thinking is the simple, fair-sounding enemy of both Iraq’s security and of any free constitution it may eventually have. Ali Sami is presumably a decent person; these days, the brutes in Iraq aren’t wasting their time running copy shops. But to think that electricity, water, and security must come “first”–that is, before respect for individual rights, or before the rule of law–is a devastating mistake.

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