Positive Liberty

In Europe, charters of liberty have been granted by power. America has set the example and France has followed it [emphasis mine], of charters of power granted by liberty. This revolution in the practice of the world, may, with an honest praise, be pronounced the most triumphant epoch of its history, and the most consoling presage of its happiness. We look back, already, with astonishment, at the daring outrages committed by despotism, on the reason and the rights of man; We look forward with joy, to the period, when it shall be despoiled of all its usurpations, and bound for ever in the chains, with which it had loaded its miserable victims.

– James Madison, 1792

Another title to this post could have been Robespierre Creationist!

American Vision produced a comical video attempting to slam atheists Dawkins and Harris with the horrors of atheistic regimes the French Revolution, Nazism, and Communism. One main problem with their notion is that neither Nazism nor the French Revolution were atheistic.

The video singles out Maximilien Robespierre as the poster boy for Enlightenment influenced atheistic slaughter. But Robespierre was not an atheist but a firm believer in God. And, as I pointed out in this much read post, the French Revolution was declared according to a strikingly parallel set of principles/ideals as the American. Continue Reading »

Leitmotif: Frankly, we are running out of organisms with short attention spans to complete the increasingly necessary “the attention span of a/an —-.” Goldfish, rabbits, and puppies are just too focused. – Jim Anderson

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By the way, I meant to congratulate our co-blogger, Ed Brayton, on his new career as a judge on the latest American Idol rip-off, The Next Best Thing. Too bad he had to use a stage name.

In, Parents Involved in Community Schools v. Seattle School District, the Court, with minor qualifications, upholds the “color blind” ideal approach to the 14th Amendment’s Equal Protection Clause. Good for them. Some lefty-liberals criticize such “originalist” approach, while signaling out “color-blind originalists” Scalia and Thomas, noting that, under the original expected application of the EPC’s text, “the ‘race neutral’ interpretation…has no basis whatsoever in originalism.”

Well, not exactly. The original expected application of the EPC’s text permitted some, arguably many forms of racial discrimination against blacks (and logic therefore suggests against whites). However, at the very least, the original meaning of the Clause required equal application of whatever general rules of law happened to be on the books, be they statutes against murder or theft, the legal ability to enter contracts, give evidence, sue or be sued, or even take advantage of substantive legal rules that come from court decisions.

If constitutional law holds that all purposeful government discrimination against blacks violates the EPC (something perhaps not within the original meaning but that all liberals and conservatives and everyone on the Court now agrees on), then the original meaning of the EPC likewise requires such expanded meaning of the text equally protect whites and other races.

In other words, whatever degree of protection “the law” decides to give, the original meaning of the EPC requires it be given equally to all persons without regard to race. When the EPC was originally ratified, “the law” simply granted a lower level of protection. It didn’t grant blacks (or whites) rights against government policies which took race into account; but now “the law” does, at least for blacks, it does. Government must, therefore, protect all races within this general rule against racial discrimination. Otherwise, the way the leftists would have it, we end up with a norm where blacks receive greater constitutional protection under the EPC than whites or other races, which is impossible to square with the original meaning of the EPC’s text.

No one wants to “go back” to the original expected application of the EPC’s text, which arguably permitted racial segregation and without question permitted bans on miscegenation. But given that is out of the realm of possibilities, the “color blind” interpretation of the EPC requiring race neutrality is the next closest thing to an originalist outcome. Such outcome also avoids constitutional double standards on racial grounds which ought to be unacceptable in modern liberal democratic societies.

“I cannot consider any man as a real Christian who uniformly disregards an ordinance so solemnly enjoined by the divine Author of our holy religion, and considered as a channel of divine grace.”

– Dr. James Abercrombie, George Washington’s minister in Philadelphia, commenting on the fact that George Washington systematically refused to take communion in his church. Indeed, from the revolution until his death, the best evidence shows that Washington wasn’t a communicant, either in the Anglican Church or after the Revolution when said church became the Protestant Episcopal Church.

The exact answer is, because Washington never so explained, we really don’t know. That’s the answer Richard Brookhiser gave me when I asked him. However, some answers are more probable than others.

Peter Lillback constructs a “political reason” as to why Washington didn’t commune. The problem is Lillback has to construct two different, wholly unrelated theories to explain this because the first theory — GW didn’t want to commune with the Anglican Church because we were rebelling against Great Britain, whose head of state was also head of Church — doesn’t explain why he didn’t commune in Philadelphia after the Anglican Church became the Protestant Episcopal Church. So he makes up some cockamamie political dispute between Washington and Abercrombie et al., who was quoted above.

More importantly, communion at heart, is not a social or a political act anyway, but theological. Christians don’t commune with their fellow Church members but with Christ.

The logic of Occam’s Razor therefore suggests that GW didn’t commune because he didn’t believe in what the act represents — the atonement. Continue Reading »

A good deal of The Open Society and Its Enemies consists, problematically, of close readings from fragmentary ancient texts. For example, Karl Popper declares — a little too confidently for my taste — that Heraclitus “was the first conscious enemy of the open society.”

Now, within the framework of Popper’s argument, I think I can actually see this: Heraclitus observed that all things change, that nothing is constant, and that even polarities — opposites like strong and weak, hot and cold, and good and evil — had their intermediate states, through which all things seemed to be shifting. Only the judgment of the moment prevails, and that, only for a moment. The law of change is inexorable, and human designs are futile.

Heraclitus, then, would rob us of our ability to understand or shape the world around us in any respect at all. Political quietism is only the least of the implications here, and Popper finds not only quietism (Heraclitus declined his own birthright as part of the ruling family of Ephesus), but also contempt for democracy and equality: “This hostility towards democracy breaks through everywhere in the fragments,” Popper notes.

To which I’d say: Hold it right there. The fragments? That’s right, all that we have of Heraclitus now comes to us from secondary sources. Indeed, so little is known of him that he is nicknamed “the Obscure,” and what little is left of his writing is thin gruel indeed:

Though the logos is common, the many live as if they had a wisdom of their own.

Every beast is driven to pasture with a blow.

How can one hide from that which never sets?

For it is death to souls to become water, and death to water to become earth. But water comes from earth; and from water, soul.

The path of writing is crooked and straight.

In other words, I’ve read better fortune cookies than this. Not often, but I have. “Pigs delight in the mire more than in clean water,” he is supposed to have said; one modern commenter opines that only the second through fifth words are authentic. My personal favorite — Souls smell in Hades — admits of two readings, but what Heraclitus means — the grammarians assure us — is that souls retain their ability to distinguish odors.

Pity, I know.

There survive only a few dozen passages like this, and nothing more. It seems that Heraclitus — who is reputed to have written an entire book — may not be getting a fair hearing. It’s as though we set out to critique Marx, but, living in some horrific post-apocalyptic age, we were totally ignorant of what he actually wrote, and all we had were the following fragments:

All great world-historic facts and personages appear, so to speak, twice… the first time as tragedy, the second time as farce.

If I negate powdered wigs, I am still left with unpowdered wigs.

All that is solid melts into air…

You would be right to find a tinge of the pre-Socratic to these phrases, but it’s not because Marx declined to explain himself or because he only wrote riddles. No, Marx was very clear about what he believed. But if you select the most memorable and figurative passages from any writer, while neglecting all of that writer’s analytic content, then — of course — everything will seem “obscure.”

In the case of Heraclitus, the selection was clearly performed for us by Diogenes and the other ancient redactors, each of whom may or may not have understood what Heraclitus actually meant. (Some almost certainly did, but, beyond a certain point, I think it’s safe to say that the rest did not.)

(In the case of Hegel, whom Popper takes on in the second volume of The Open Society and Its Enemies, everything is already obscure to begin with, and the full text needs no redaction to reach pre-Socratic opacity. No, I admit I have never been able to find the sense in Hegel’s writings. But, given what Popper has done with Heraclitus, I have high hopes of finding a sense in Hegel’s writings, and therefore to seem smarter than I actually am. I’m still dreading having to read The Phenomenology of Spirit, though.)

God is hardly mentioned at all in Madison’s notes on the debates that took place during the Constitutional Convention. And this shouldn’t surprise us given that the Constitution is a “Godless” document. Ben Franklin at one point called for prayer. But his proposal was ignored as they did not pray.

The following is from Madison’s notes, one of the few times that they discuss God and the Constitutional Convention.

“Reason tells us we are but men: and we are not to expect any particular interference of Heaven in our favor.”

Though, at other times Madison expressed belief in a warm-personal God — though, more of a benevolent unitarian deity, as opposed to the God of Scripture. That is why Madison, like the other key Founders ought to be understood as a “theistic rationalist” as opposed to a “Christian” or a “Deist.”

I haven’t finished reading Daniel Farber’s Retained by The People, the new book on the Ninth Amendment, but I did skip ahead to read the one paragraph in which he discusses Randy Barnett. Since by any rational calculation, Barnett is the most important contemporary Ninth Amendment scholar, it’s a little disturbing to see that Farber mentions him only so briefly, but even more troubling is what I consider the obvious wrongness of Farber’s response to Barnett. This single paragraph occurs in an appendix called “misunderstanding the framers,” and in it Farber writes,

The libertarian view espoused by writers like Randy Barnett is that the Ninth Amendment creates a general presumption in favor of liberty, rather than requiring the identification of specific protected rights. In pursuing this analysis, Barnett has done important work in sifting the historical record. His analysis is partly right, where all the other conservative analyses [sic] are wrong, in stressing the connection between the Ninth Amendment and individual rights. But his analysis then makes the mistake of confusing right, which come in discrete packages, and liberty, which is a vaguer concept of unrestricted action. The Amendment clearly speaks in terms of rights rather than some undifferentiated concept of liberty.

(p. 209). I’ve “sic”ed Farber because, of course, libertarianism is not a variety of conservatism, Barnett is not a conservative, and his view of the Ninth Amendment has literally nothing to do with conservatism—this would be why conservatives reject Barnett’s view of the Ninth Amendment. It is a libertarian view, and libertarian is a variety of liberal.

How many other things are wrong with this paragraph? Well, first of all, the text of the Ninth Amendment does not refer to “discrete packages” of rights. It refers to “others retained by the people.” The term “others” is undifferentiated! It echoes the Declaration’s reference to “among these [rights]”—that is, this text exists specifically to point out the fact that the act of differentiating some rights and setting them aside as discrete packages must not be construed to deny the existence of an undifferentiated (and insusceptible of differentiation) mass of other rights that together make up the concept of liberty. The Ninth Amendment would be self contradictory if it were interpreted in a way that required that all the rights to which it refers be “discrete packages.”

Farber’s error here is not unlike the error committed by Bork and others, who assume that rights must be identified and specified before they can be accepted as constitutionally recognized entities. The Amendment exists precisely to block such a theory: it exists because liberty is made up of an infinite number of undifferentiated rights, and to cut some out from the herd might lead some people, like Bork and Farber, to assume that only those which have been cut out deserve respect.

What’s more, I think Farber misunderstands Barnett’s argument. Barnett does not argue that we are never required to identify or specify our rights ever. The presumption of liberty is just that—a presumption, which simply requires those who would dictate action to us (or proscribe our actions) to justify their doing so on some public basis. If government meets this burden, then the person has the opportunity to identify more specifically the ways in which government is violating specific, identifiable rights. The presumption simply says that if the government is going to act, it is up to the government to justify that decision—just as the burden must always be on the party asserting the positive claim.

Farber also makes another serious, and all-too-common, error in the paragraph that follows. He writes, “[i]t bears remembering that the Ninth Amendment was the product of Madison’s mind. At that point, Madison was still the pro-federal government author of the Federalist Papers, not the advocate of limited government and state’s rights that he later became in reaction to Hamilton’s programs.” Thus Farber buys into the long-refuted myth of the Two Madisons. This is exceedingly frustrating to an admirer of Madison such as myself. In reality, Madison was one of the most consistent and thoughtful political thinkers that ever lived; the myth of the Two Madisons was concocted by Irving Brant, whose biography of Madison painted him as a hypocrite in order to support the New Deal of which Brant was a particularly hysterical admirer. It’s been thoroughly refuted by Lance Banning, Gary Rosen, Ralph Ketcham and others, and it should not get a respectable hearing any longer. The silly consequences of the Myth are obvious if one sees that Farber here is claiming that the Ninth Amendment is somehow “pro-federal government.” This can be true only in the limited sense that “the people” to whom the Amendment refers is “the people of the United States.” But even there, it is patently obvious that the Amendment protects “rights” against federal intrusion in at least some sense.

I still have high hopes for this book but these passages are already quite disappointing.

The biggest thing I glean from the Cheney series in the WaPo is how early and decisively, Cheney and Rumsfeld decided that this war would be won by torture. No war ever has, but they knew better. More to the point: this issue was never seriously debated in an open and honest fashion in the White House. It was simply done - and done in a way that circumvented the law, the other responsible parties in the administration, and the constitution, under a philosophy that there are no constraints on executive power in wartime. Wartime, it’s important to remember, is now permanent. The powers that Cheney has seized apply permanently and to anyone in the United States. There is no oversight and no law - just raw executive power. It is what America was founded to resist. And it is a sign of American decline that the American people have simply accepted the end of their most basic liberty with a shrug of indifference. — Andrew Sullivan, today.

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Just in case you’re getting too depressed about the Supreme Court’s rulings on Monday, I should note that they did get one right in FEC v Wisconsin Right to Life (full ruling here). It was another 5-4 ruling with the same breakdown - Alito, Roberts, Scalia, Thomas and Kennedy in the majority, Souter, Stevens, Breyer and Ginsburg in dissent. But on this one the conservative majority got it right. The ruling strikes down a provision of the McCain-Feingold law that bans all advocacy groups from airing commercials about issues within 2 months of an election. This is an absurd law and a clear violation of the first amendment. I’m disappointed that it was only 5-4, it should be a 9-0 no-brainer ruling. And I have the same reaction to the liberal minority here that I had to the liberal majority in Kelo: I do not understand who anyone who considers themselves a liberal can justify such a ruling. How can a liberal make case that for two months of the year, no advocacy organization can try and convince their fellow citizens to agree with them by airing commercials advocating their position (just as I wondered how on earth the liberal justices could justify upholding the right of big corporations to take property, primarily from lower income people, and use it for their own profit in Kelo). I have a hard time imagining ideas less liberal than those.

In Morse v Frederick, the now-famous “Bong hits for Jesus” case, the Supreme Court, by a 5-4 ruling, came down with just about the worst free speech ruling issued during my lifetime (see full text here). I expected a very narrow ruling in favor of the school. Unfortunately, the court issued a very broad ruling in favor of school authority to censor any speech they see fit, not because it causes any disruption, as the standard in Tinker required, but because it disagrees with a message the school thinks is important. This is a very dangerous precedent.

Leaving aside the question of whether the event was school sponsored or not (a very close call and I’ve no problem with the court saying it is), it is the breadth of the ruling that surprises me. Essentially the court says “drugs are bad and therefore the school can punish any student who makes any statement that might be construed as encouraging drug use.” Here is the holding:
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As I’ve already noted, the Supreme Court has ruled in Hein v Freedom From Religion Coalition (full text here), a case involving the question of taxpayer standing: does a taxpayer have legal standing to challenge expenditures that they believe exceed the Federal government’s constitutional authority? It also cuts to the much deeper question of the coherency of standing doctrine itself, which is an absolute mess and makes very little sense.

The decision was a plurality. Alito and Roberts on the controlling opinion with Scalia and Thomas filing their own concurrence and Kennedy filing another. Souter, Breyer, Ginsburg and Stevens were in dissent. Yes, that lineup should begin to look very familiar to you soon; it’s going to be a very common breakdown of rulings with the court as currently configured. I gave a background on the issues of the case here and you may want to review that first in order to understand the rest of this post.
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On page 106 of The Open Society and Its Enemies, Karl Popper quotes Plato and discusses as follows:

‘The part exists for the sake of the whole, but the whole does not exist for the sake of the part… You are created for the sake of the whole and not for the sake of you.’ This quotation not only illustrates holism and collectivism, but also conveys its strong emotional appeal of which Plato was conscious… The appeal is to various feelings, e.g. the longing to belong to a group or a tribe; and one factor in it is the moral appeal for altruism and against selfishness, or egoism. Plato suggests that if you cannot sacrifice your interests for the sake of the whole, then you are selfish.

And, on a related note:

It may therefore be worth while to mention some further reasons why guileless people have persuaded themselves of the humaneness of Plato’s intentions. One is that when preparing the ground for his collectivist doctrines, Plato usually begins by quoting a maxim or proverb (which seems to be of Pythagorean origin): ‘Friends have in common all things they possess.’

Now Popper stops well short of condemning altruism, but I don’t.
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Today was a very disappointing day at the Supreme Court, which has proved itself once again breathtakingly insensitive to the Constitution’s principles of individual liberty. First up, there’s the Wilkie v. Robbins, a property rights case that may prove worse than Kelo v. New London. I have a brief write up explaining why at PLF on Eminent Domain.

Then there’s the Establishment Clause case—the Court found that taxpayers lack standing to challenge important federal programs diverting tax dollars to funding religious institutions. I explain that one over at Panda’s Thumb.

And then there’s the awful free speech case, which Ed Brayton will soon be blogging about, I’m sure. Stay tuned.

A quick google search reveals that Milton, Newton, and Locke (all of whom most of my readers have probably heard) and Samuel Clarke (many readers may not have heard of him, but he, like the other three greatly influenced our Founding Fathers) were “Arians.” That is, though they may have called themselves “Christians,” they believed Christ was created by and hence subordinate to God the Father. To Arians, Christ may have been some type of Divine Being, but he was not fully God.

Question: According to the standards set by orthodox Christianity, these men were “heretics.” Do you think that they may still be called “Christians,” or are they not Christians, but something else? For instance, most orthodox Christians say Mormons are not Christians (even though they call themselves “Christian”); rather, they are “Mormons.”

Should we likewise say, don’t refer Locke, Milton, Newton, and Clarke as “Christians,” call them “Arians.” If orthodox Christians were consistent, they would say yes.

But what about those of us who don’t consider ourselves “Christian”? Outsiders to “Christianity” have no “theological dog in the fight” regarding how narrowly or broadly “Christianity” is defined. However, the overwhelming majority of Christian Nationalists are also devout Trinitarians, who would likely argue, because of their beliefs, Mormons aren’t Christians, even if they call themselves Christian.

To be honest, I do have motive in showing that the key Founding Fathers and their philosophical heroes likewise were not Christians as orthodox/evangelical/Catholic Christians define that term. As I’ve noted before, debunking the “Christian Nation” myth is useful for social libertarians because if Christian Nationalists realized they never “owned” America’s Heritage as they’ve been mistaught, such helps to take away their zeal or the winds out of their sail, as they’d be trying to “reclaim” something they never owned.