Positive Liberty

As I’m sure everyone knows by now, President Bush has nominated Samuel Alito to replace Harriet Miers and will send his name to the Senate for confirmation to take Sandra Day O’Connor’s seat on the Supreme Court. It’s an interesting pick to me, as I would have put him about 3rd or 4th on the list of others with similar credentials. The pick was determined by the criteria Bush chose to use. If he was going to try again for a woman, there was one short list; if he was going to try and name the first hispanic to the court, there was a different short list. And if he was going to just pick from the top names, I would have ranked that short list roughly like this: McConnell, Luttig, Alito, Wilkinson. All have fairly similar resumes (though McConnell has a much stronger record as a legal scholar than the others, which is why I rank him at the top) and all are solidly conservative.

Alito has written some very interesting religion law opinions, which I haven’t had the chance to go through in their entirety yet. The most prominent is probably FOP v. Newark, in which Alito wrote the unanimous opinion for the court, ruling that the Newark police department could not forbid Muslim officers from having beards even though the policy against beards was generally applicable and not aimed at any particular religion. That suit was brought by the ACLU and the Becket Fund. Very strong free exercise case.
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Kuznicki’s got a point about jazz. It’s been so over-intellectualized that much of the fun is taken out of it for most people. I don’t mean that we shouldn’t ask questions about art or seek a deeper understanding of music, including jazz. The problem isn’t ideas, the problem is intellectuals. They’ve screwed up a lot in this world, and jazz along with it. Just try reading John Szwed’s biography of Miles Davis. It’s a good enough biography on the whole, but Szwed can’t resist getting into the technicalities of Davis’ music in ways that are just so much babble to most people.

Anyway, I indeed got a note from a reader in response to my original post about autumnal music, saying “FYI, two corrections: ‘Fall’ was composed by the great Wayne Shorter, not Miles, as were most of the group’s repertoire from this period. Also, it’s not modal, as it has quite complex chord changes.” Well, I knew the former; not the latter. Indeed, much of the music from the Miles Smiles, Nefertiti, Sorcerer days was by Shorter, including my favorite Miles Davis tune of all (probably): “Footprints,” on Miles Smiles. And Shorter plays very well on these albums. But I’m not the biggest saxophone fan, for one thing, and for another, I was deeply unimpressed by the Shorter album everyone was raving about recently, Alegria. It had some nice moments, but they were often crippled by bizarre, unpleasant moments that were just musically meaningless to me—which probably makes me an uncultured boob. In fact, my favorite parts of Alegria were the piano parts.

The Sacramento Bee’s Dan Walters gets it exactly right when discussing the Public Policy Institute of California’s new study which questions other studies suggesting California is hostile to business:

[T]he relocation of jobs from California to other states is only one piece of the puzzle. There are no measures of jobs not created by employers, much less measures of why they may not be created. Thus, no one really knows whether, for instance, boosting the minimum wage would have a substantial negative effect, as business opponents contend. Nor is there any definitive research on what factors may positively influence job-creating investment.

Or, to paraphrase Bobby Kennedy, a good economist must not just look at what is, and ask why, but look at what might be, and ask why not? Californians are so extremely wealthy that they are willing and able to pay to live in hyperregulated environments like San Francisco and Santa Monica—where prices on everything from homes to consumer goods are needlessly driven up to serve the agendas of the demagogues whom it delighteth the economically illiterate to honor. But what could we have, and what could we be, if it weren’t for the stifling interference of the government?

I’ve been reading a number of different modern and classical thinkers on the Hobbsean/Lockean natural rights theory which undergirds the Declaration of Independence and our Founding. Many modern thinkers on both the left and the right simply don’t take the theory seriously. They believe it to be just fictional rhetoric and itself riddled with internal contradictions. Even among those thinkers who do presently defend the theory, there is much disagreement on how the theory should be understood. And even during the founding era, there were variants on how to properly understand and apply the theory.

As the theory goes, men have certain “natural rights” in a state of nature (before civil government has been instituted). “Imperfections” in the state of nature (the fact that there is no police power with a monopoly on legal force to effectively enforce our natural rights) lead men to form civil society where they give up some of their natural rights — that is trade their natural rights for civil rights — to gain the security that only government can provide. Continue Reading »

Two longtime blog neighbors, Josh Claybourn and Paul Musgrave, have replied to my post on nurturing as the purpose of marriage. I’ve also gotten a stimulating reply from Pseudo-Polymath’s Mark Olson.

First, I find it gratifying that my original post does seem to have shifted the terms of the debate, at least for the small circle of people who have replied so far. Rights-talk, romance-talk, and baby-talk (if you’ll pardon the expressions) all fall short in explaining the institution as most people seem to understand it today. All three replies clearly appreciate this, even if none are quite ready to sign onto the nurturing model wholeheartedly.

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I’ve updated the sidebar to reflect some of our recent posts about music. One favorite of mine lately is Terence Blanchard’s Flow, which has become something like my personal soundtrack this fall.

I must be getting old. I’ve reached the jazz stage.

Honestly, I’m terrified of recommending anything about jazz. I’m worried that some jazz expert will post a question about some hopelessly arcane technical aspect of the music, about which I know absolutely nothing. I’ll then be revealed for the gigantic phony that I am.

Or maybe he’ll just look at my recommendations and say, “Oh, I see,” with a condescension that practically drips off the screen. Then I’ll have to go back to listening to Aerosmith like I did in high school and forget all about trying to like grown-up music.

I’ve also added a link to James Herrick’s The Making of the New Spirituality: The Eclipse of the Western Religious Tradition, which I am finding an intensely frustrating but very revealing book. I hope to have a review up in the next few days.

Fascinating if so!

(No, not that Homer.)

Update: Broken link fixed, I hope (third or fourth time I’ve tried….)

I had no idea that Racer X had reunited. They are, if you don’t know, a hair metal band from the 80s LA scene, who also happen to have some of the greatest technical rock players. Some of their stuff is cool; some of it was incredibly bad. Guitarist Paul Gilbert originally quit the band and joined Mr. Big who had a few hits back in the day (another band comprised of phenomenal players, but wrote a lot of lame, pop-oriented tunes).

Here is what I see as the significance of the musicians in Racer X: Jazz and classical music always had it shares of virtuosos. You pretty much have to be a virtuoso to make it in classical music*; jazz is almost as demanding a form of music, but does have its share of non-virtuosos. Rock on the other hand, was more of a relatively new form of music and has very simple, humble origins (hence the term “garage rock”). Continue Reading »

Over at Volokh, David Bernstein notes that the 14th Amendment with its Equal Protection Clause only applies to the states. Therefore, how could the Supreme Court rule, as it did in Bolling v. Sharpe, that the federal government is likewise constrained in its ability to discriminate (segregate schools)? Supposedly, the Due Process Clause of the 5th Amendment “reverse incorporates” the Equal Protection Clause against the federal government.

Sorry, I don’t buy it. I also don’t buy the notion of “Substantive Due Process.” The Due Process Clauses of both Amendments are “procedural” clauses.

However, substantive norms of both liberty and equality are central to both the original founding and the 14th Amendment. Those substantive norms are properly contained in the Privileges or Immunities Clause of the 14th. The Equal Protection Clause too is a procedural clause, directed mainly against the executive branch of state governments demanding equal protection of whatever general laws happen to be on the books.

So does the P or I Clause then “reverse incorporate” against the federal government? No, the Declaration of Independence holds that all men are by nature equal. Equality as with liberty is a natural right. And Randy Barnett has aptly demonstrated (although with little discussion on the substantive right to equality) that the 9th Amendment guarantees our natural rights against the federal government.

The substantive norm of equality that constrains the federal government properly belongs in the 9th, not the 14th or 5th Amendments. Now, I’ve concluded this by my own logic and if I did read some more distinguished scholar originally putting forth this idea, I don’t remember. But someone has got to have made this case before me? Anyone know?

It’s astounding to me that nobody has called McDonald’s on what seems to me a virulently racist radio commercial they’ve been running for months now. You’ve probably heard it—it’s promoting their latest sweepstakes, Monopoly 2005. Two characters speaking in stereotypical “black talk” engage in a dialogue. One tells the other that the great thing about winning a million dollars is that you get to go to special places, where there are “special rooms with special million dolla people,” and the other says “is theh a…thirty three dolla and sixty five cent room?” or something to that effect. It’s audio blackface: a modern minstrel show in which the humor is derived entirely from the speech patterns and ignorant poverty of the characters. I would have thought this kind of humor was unacceptable today. But there’s no complaining to be heard.

Update: So is racist caricature objective or subjective? Pseudo-polymath writes, “the racial insult be recognized and fielded by the insulted party. It doesn’t do for me (or other pundits) to be outraged ‘on the behalf’ of some imagined slight.” But you know, I’m not sure that’s right. Surely every non-racist white person has experienced the following scenario: in a conversation about the miserable state of the world today, some white person with whom you are only slightly acquainted thinks he sees an opportunity to vent, and launches out with “Well, you know, it’s all cause of them [insert derogatory term for minority here].” At that moment, what are you supposed to do? Smile and laugh and go along with it on the grounds that, since no member of that minority is around to hear it, this racist tree falling in the woods makes no sound?

I don’t think so. I think racism is racism, and deserves to be criticized by anybody. I think the McDonald’s spot is straight out of the days of Amos ‘n’ Andy, and is deplorable. Obviously at least some black people are not offended by it, but does that make it right? There were black people who were not offended—or professed not to be offended—by derogatory racial stereotype-based humor since it was started. But such humor is demeaning to the producers and the listeners, regardless of their race.

Now, maybe I’m overreacting to the McDonald’s ad. I actually have a fairly high tolerance for offensive humor, and I think most of the time when people complain about such humor, they’re overreacting, so maybe I’m doing it this time myself. Sometimes it’s hard to discern the line between acceptable cultural references and deplorable racial stereotypes. But I don’t think that line excludes non-members from recognizing demeaning media portrayals for what they are.

Here I argue that the reason for marriage is neither solely to produce children, nor to seek romantic fulfillment, nor merely to contract with the government for rights or benefits. I propose another model, arguing that it explains the institution of marriage much better than the common reasons given for it in the same-sex marriage debate.

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This is exactly why I think Brian Leiter is such an enormously overrated intellectual. He’s written some interesting and useful things, and when he’s bashing people who deserved to be bashed, there’s a little pleasure in that. But very often, Leiter is more interested in finding clever ways of calling people stupid than in actually presenting useful, or even true, statements. For a man who makes such hay condemning conservatives for allegedly being ruthlessly ignorant, statements like this ought to be particularly embarrassing. This time it’s: “the ‘conservatives’ of each prior era in America in the last century were, without an exception I can recall, on the morally reprehensible side of every major social and economic issue.”

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My speech at Texas Tech Law School was the standard speech I give about Kelo v. New London—explaining how it fits in the development of political philosophy over the past few centuries. At the end of my speech, Professor Dennis Olson gave a 15 minute response, which, because I went a bit over, meant that there was no time at all for questions from the audience. Very disappointing. So I promised to answer any questions that might be posted in the comments at Sonya’s Gotta Scream, a blog run by the head of Texas Tech’s Federalist Society.

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So far I’ve only received a couple suggestions for fall music in addition to the ones I posted. Brayton suggested James Taylor, who certainly does qualify. (There’s a line in “The Walking Man” about “the frost is on the pumpkin” which is really marvelous poetry; a perfectly economic illustration of fall). And reader Mandy recommended “Richard Strauss’ ‘September’ from Vier letzte Lieder (Four Last Songs), for voice and orchestra. Best recording: Renee Flemming or Elisabeth Schwarzkopf. Text and translation.” I’ve never heard it. I like Strauss, although I’ve never been a fan of German through-composed songs (despite Mandy’s best efforts, I must say!)

What other songs evoke autumn for people out there?

I forgot to link to part 2 of Tom Bell’s post about his debate with Adam Mossoff. Glen Whitman also has a post responding to Prof. Bell, and, I assume, another forthcoming.