Positive Liberty

For kindly responding to my comments on the Constitution’s “No Religious Test” Clause. Here are some excerpts from his post:

History: First, Jon Rowe, who had many valuable comments, asks a basic question: What was Rhode Island’s religious test during the Founding era? Let me quote from Gerard Bradley, whose article I cited in my first post: “Rhode Island, as in many church-state matters, was a special case: the Protestant monopoly there flowed from an exclusion of Catholics and Jews from citizenship, and not, precisely, from political office.” Mr. Rowe also makes a series of broader points, arguing that we should draw some significance for our historical reading from the assertion that a number of key framers were not orthodox Christians. I don’t dispute that assertion, but would say two things. First, those admittedly central individuals are not the only or even the authoritative figures here. In thinking about the historical understanding of the Clause, their views must be counted alongside the views of those whom they sought to convince — the other framers and the ratifiers of the Constitution. I have no algorithm to apply here in weighting their respective views; but my holistic reading of the history surrounding the debate over the Clause suggests to me, at least, that we should not read the Clause too broadly in light of these standout examples, especially in light of the real historical evils the Clause appeared fairly clearly to address. Second, as Mr. Rowe notes, although unorthodox, those key framers, and certainly many other framers, did not think virtue and character were irrelevant to political office; for most framers and ratifiers, religion (however broadly defined) was certainly a vital aspect of one’s character. Continue Reading »

Amusing!

I read all my favorite blogs through Bloglines, which means that all the articles have more or less the same format, font, color, and so forth. Sometimes it’s even difficult to tell who the author is, and that’s when my mind starts playing tricks on me.

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Charles Krauthammer — among the most readable of the remaining hawks — argues today that

Of all the arguments for pulling out of Iraq, the greater importance of Afghanistan is the least serious.

Let’s look at his reasons.

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Did you know that the federal government confiscates a quarter, or even a half, of the entire California raisin crop every year? I explain why over at PLF on Eminent Domain.

In yesterday’s WND Joe Farah failed in an attempt to “fisk” Rep. Pete Stark, D-Calif. for claiming, “Like our nation’s founders, I strongly support the separation of church and state.” Farah responded:

When I hear statements like this, from people who have been around the block a time or two, I have to wonder if the man is knowingly lying in support of his perverted beliefs or whether he is hopelessly ignorant of history.

Let me put it this way: None of America’s founding fathers supported — strongly or not — the notion of separation of church and state. None. Nada. Zip. Zilch. Bupkis.

Such a strong statement. He must really be confident that the historical record supports his side. The rest I’m going to have to handle line by line. Continue Reading »

An echo of one of the most interesting conversations I had last week.

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Tyler Cowen edges still further away from the libertarian camp, as follows:

Life without socks would be… “undignified,” but no one recommends government provision or even sock vouchers. Relative to income, socks are sufficiently cheap. There is some inequality of socks, but it seems that just about everybody — even the poor — “has enough.” We don’t even force people to buy socks for their kids.

Might there come a time when health care and education fall under the same rubric?

Yes, I know that, due to rising labor costs, health care and education might continue to eat up an increasing percentage of national income. But still, can’t “rich enough” people make do? Living in Aspen might cost half your income, but if you’re a multi-millionaire no one weeps for you.

Of course today’s poor aren’t rich enough for us to remove government aid. But when will the splendid era of libertarian freedom be possible? Today’s poor are much richer than the poor fifty years ago, and the poor of the future are likely to be richer yet. Won’t the welfare state, at some point, simply become unnecessary?

Readers, please tell me in the comments when the time will come for dismantling the welfare state.

The time is now, of course.

Today’s poor are rich enough for us to remove government aid. We already did this to a considerable extent with welfare reform in 1996. The result was by nearly all accounts a success, and I see no reason to think that we sit at any privileged point of negative marginal return on shrinking the state.

The socks argument doesn’t hold up too well either. By analogy, life without sufficient healthy food is undignified. Healthy food is also a small and decreasing share of household expenses for the poor. Indeed, overeating is a more important problem for the low-income than hunger. Yet government food aid remains, and it’s skewed heavily toward making sure that the poor eat nutritious meals, even if they don’t particularly feel like it. Why? Because doing otherwise would be undignified.

Dr. Cowen, I do say this with some sarcasm, but please, please, stop enabling the sock bureaucrats.

Meanwhile, if you want to shrink the state, entitlement programs for the poor are small potatoes and probably not worth the effort of dismantling just yet. (Ditto to earmarks; even if they are sleazier, they’re still a drop in the bucket.) The real action should be against entitlement programs for the middle class and above: They’re vastly larger and vastly more dangerous than programs for the poor. Worse, they’re morally indefensible even if we accept the morality of compulsory government aid. Which I still do not.

I know that its authors did not intend this outcome, and I know that in the seventies they strenuously rejected it. But I am inclined to think that the Equal Rights Amendment, now known as the Women’s Equality Amendment, would protect same-sex marriages under the United States Constitution.

For this and for many other reasons, I support it. I find the new name troubling, however: Nothing in the amendment singles out women, and men should clearly be included as well.

The skeptics might hope — for whatever reason — that the WEA does not lead to same-sex marriage. Yet consider the reasoning found in Deane v. Conway, Maryland’s same-sex marriage decision, which now under review. It used some nearly identical constitutional language to strike down Maryland’s gender-specific marriage law.

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I’ve noticed a blog (no links to them!) artificially boosting its own Technorati ratings: Somehow, each individual post is categorized as a “new” blog linking back to… itself! All the new posts are linked to all the old ones, while old posts are retrofitted to link to the new ones. Everything is linked, again and again, to aggregators like Digg and Reddit, complete with even more links to itself.

The payoff? Instant cyber-credibility. Until you look closer. (Warning: Google says that his page contains malware; I wouldn’t go to the actual blogger’s site if I were you.)

The externality? Well, Technorati is slowly growing unusable for anyone who gets targeted by this scammer. I don’t actually care what my popularity numbers are, so I’m not interested in artificially inflating them. I do, however, want to see legitimate conversations that my writing may have prompted elsewhere, and this information is getting lost in the noise. It’s not a huge problem just yet, but it could easily become one.

Technorati gods, are you paying attention? I somehow doubt that this is what you had in mind for your service. And is there some way I can clear this annoyance out of my WordPress dashboard? He links to Positive Liberty with every single freakin’ post, and every one of them counts as a “new” blog linking to us, even if he never actually discusses anything that Positive Liberty may be talking about at the time.

I’ve been very delinquent in my Battlestar Galactica blogging of late. Part of this was because this season was in many ways a real let-down, and in more than one instance we saw the series’ attempts to make interesting statements collapse into banality and poorly thought-out themes, not unlike the awful season 2 episode “Black Market” that I blogged about here or the slightly better sequence in which Roslin incredibly prohibits abortion as a population management measure.

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I got a call from Jim Babka of Downsize DC the other day and he mentioned the announcement of the American Freedom Agenda by a group of prominent conservatives. It’s an interesting group: Bruce Fein, former DOJ official under Reagan and prominent legal scholar; David Keene of the American Conservative Union; Bob Barr, former Georgia Congressman; and Richard Viguerie, who may not be a well known name but is probably the man most responsible for the election of Ronald Reagan and the formation of the modern conservative movement.

What makes it all the more interesting is the position they are taking: they are pushing a raft of reforms that would push back Bush’s “unitary executive” agenda and restore checks and balances to government. They are taking a strong stand against a wide range of Bush policies – the warrantless wiretapping program, the use of presidential signing statements as de facto vetoes, extraordinary rendition, the use of torture, the military commissions act, and much more. They are asking 2008 presidential candidates to sign the Freedom Pledge, the text of which I will paste below the fold:
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Paul Horwitz, an Article VI — “no religious test” — scholar, has his first post on Volokh today.

Particularly, I’m interested in why the Founders chose to ban such tests federally, and not at the state level. One reason why the original Constitution didn’t ban such tests at the state level is because, as with slavery, even if many or most of the Framers wanted to do this, the states probably wouldn’t have ratified the Constitution if it meant abolishing their religious tests which most states at that time had.

Here is how Horwitz in today’s post deals with what the Framers were concerned with in the context of state v. federal religious tests: Continue Reading »

This forthcoming law review article by University of Texas professor Tara Smith cites my post responding to Justice Scalia’s First Things article.

This is PL’s third law review citation; the first was Brandon R. Johnson, “Emerging Awareness” After The Emergence of Roberts: Reasonable Societal Reliance in Substantive Due Process Inquiry, 71 Brook. L. Rev. 1587, 1629 (2006), which cited this post by Kuznicki, and the second was Mary Katherine Hackney, Is This Apple for Teacher An Apple from Eve? Reanalyzing The Intelligent Design Debate from A Curricular Perspective, 85 N.C. L. Rev. 349, 376 n. 167 (2006), which cited this post by me.

The Cato Institute’s got a podcast with me today about the Robbins v. Wilkie case. More on the case over at the PLF on Eminent Domain blog.

I want to take a moment to plug one of my very favorite pianists, Chitose Okashiro, to whose transcription of Tchaikovsky’s Pathetique Symphony I’m listening right now. A real virtuoso, Okashiro has produced what I think are the finest recordings of Scriabin’s piano pieces ever. Her Complete Etudes is particularly fine. She has a perfect touch for the drama of romanticism, both in the booming, rapturous pieces and the soft, gentle moments. Along with the Pathetique and the Scriabin Etudes, she’s also produced piano transcriptions of Richard Wagner—including “Ride of the Valkyries,” which takes a little getting used to—and Mahler’s Titan symphony. (I’ve always liked Titan; my motto is, if you’re going to have unfashionable musical tastes, you might as well go whole hog. I like John Philip Sousa, too.)

Anyway, another particularly fine recording is this CD of Schumann’s Symphonic Etudes, which also has a little Chopin and Mozart and Scriabin. And check out the little-known alternate take of Scriabin’s Etude in D sharp minor (Op. 8 no. 12), on this CD, where she performs a piano transcription of Scraibin’s Poem of Ecstasy. I’ve never been a fan of the Poem of Ecstasy, but the Etude in D is my Very Favorite Piece of Music of All Time, so the alternate version is of particular interest. It’s nowhere near as good, but it’s still nice to see how Scriabin was thinking.

Now if only we could get her to do the Scriabin preludes….

I’m at home today, not feeling too well. I’ve taken the opportunity to install a new template. I may tinker with it. After a nap. Comments on the new design are welcome, otherwise consider this an open thread.

From his letter to Rev. James Smith, December 8, 1822:

No historical fact is better established, than that the doctrine of one God, pure and uncompounded, was that of the early ages of Christianity; and was among the efficacious doctrines which gave it triumph over the polytheism of the ancients, sickened with the absurdities of their own theology. Nor was the unity of the Supreme Being ousted from the Christian creed by the force of reason, but by the sword of civil government, wielded at the will of the fanatic Athanasius. The hocus-pocus phantasm of a God like another Cerberus, with one body and three heads, had its birth and growth in the blood of thousands and thousands of martyrs….In fact, the Athanasian paradox that one is three, and three but one, is so incomprehensible to the human mind, that no candid man can say he has any idea of it, and how can he believe what presents no idea? He who thinks he does, only deceives himself. He proves, also, that man, once surrendering his reason, has no remaining guard against absurdities the most monstrous, and like a ship without a rudder, is the sport of every wind. With such persons, gullibility which they call faith, takes the helm from the hand of reason, and the mind becomes a wreck.

The entire thing is worth a read.

“It Makes No Difference” by The Band, sung by the late Rick Danko. I’m glad I got to see him about a decade ago with The Band before he passed away. It was at Trenton’s Waterfront Park, which is about ten minutes away from where I live. They were joined by none other than Stephen Segal who played a number of songs with them (I’m serious).

Article VI’s “no religious test” clause of the US Constitution is much neglected with a dearth of scholarship on its proper meaning. Arguably this clause was a revolutionary (for its time) statement of religious neutrality. Why is this clause so ignored?

Prof. Paul Horwitz, from Southwestern Law School will be blogging this coming week on Volokh. And Eugene already posted Horwitz’s main article on the subject.

Horwitz argues for a very strict reading of this clause. When I first read his paper, it struck me as a politically conservative reading of Article VI. However, as with the Free Exercise Clause, narrow or broad readings cut both ways politically. EMPLOYMENT DIV., ORE. DEPT. OF HUMAN RES. v. SMITH seemed on its surface a narrow “conservative” reading of the Free Exercise Clause; indeed it was written by Justice Scalia. However, many religious conservatives vehemently disagree with Justice Scalia’s decision in the Smith case. While some secular liberals like Marci Hamilton enthusiastically support it.

In doing research on this issue I found this article by Manuel Miranda, a conservative, arguing contra Horwitz, for a broad reading of Article VI. Horwitz’s interpretation is much closer to Cathy Young’s or E.J Dionne’s in the article.

In Monday’s Boston Globe, columnist Cathy Young, also a contributing editor of the libertarian Reason magazine, concludes: “A candidate’s or nominee’s ideology should be fair game whether it’s religious or secular in nature, whether it’s rooted in conservative Catholicism or liberal feminism.”

More interesting is how Ms. Young gets to this conclusion. While applauding John F. Kennedy’s milestone election as the first Catholic president, Ms. Young recites Article VI, but she conflates the religious test clause with the provision that officeholders “shall be bound by oath or affirmation, to support this Constitution.” She interprets this to mean that “an officeholder could not be required to take an oath or perform a religious ritual affirming his allegiance to a particular religion or denomination, or even a general belief in God.”

[...]

In Wednesday’s Washington Post (“Why It’s Right to Ask About Roberts’s Faith”), columnist E.J. Dionne asks: “Is it wrong to question Judge John Roberts on how his Catholic faith might affect his decisions as a Supreme Court justice? Or is it wrong not to? . . . Why is it wrong to ask him to share his reflections with the public?” It would be helpful, Mr. Dionne concludes, “if Roberts gave an account of how (and whether) his religious convictions would affect his decisions as a justice.”

[...]

Journalists believe that the religious test clause guards against simple discrimination against Catholics or Jews or any other particular denominations. It does not. It prohibits a probe of what the potential officeholder believes derived of his religious convictions. [my emphasis] It is not about what he lists on a questionnaire under religion, as if it were like race or sex. That is why the liberal press has mocked the concern raised by conservatives that the abortion litmus test and other lines of inquiry are a constitutionally prohibited religious test.

In other words, according to Horwitz, Article VI really does mean only that “an officeholder could not be required to take an oath or perform a religious ritual affirming his allegiance to a particular religion or denomination, or even a general belief in God.” And if a liberal Congress wants to probe into Justice Roberts’ religious beliefs and vote him down because he, as a conservative Catholic, may be so influenced on the Court, Art. VI provides no constitutional barrier to their so doing.

Yet, such a reading cuts both ways. If a liberal President appointed an insufficiently religious Supreme Court nominee, a religiously conservative Senate could so inquire and refuse to confirm the nominee on that basis.