Freespace

Freespace year in review

 In May, Freespace moved over here from Blogger, and I must say the improvement isn’t vast. But since then….

Total number of hits: 63575
Average per day: 269.39
Today: 573
This week: 1659

These numbers, which come from Typepad, do not seem at a glance to add up.

As for the rest, I’ll snag this questionnaire from Sarah Hempel:

1.What did you do in 2004 that you’d never done before?
Filed a complaint in federal court.

2. Did you keep your new years’ resolutions, and will you make more for next year?
I don’t think I made any last year. But this year, I’ll probably make some. I won’t divulge them, though, and that way in 2006 I can claim to have kept them.

3. Did anyone close to you give birth?
Andrew’s wife.

4. Did anyone close to you die?
Only my father’s cat.

5. What countries did you visit?
The United States. Oh, and Florida.

6. What would you like to have in 2005 that you lacked in 2004?
More time for my independent writing projects.

7. What date from 2004 will remain etched upon your memory, and why?
September 17, 2004. I took Erin to Newport Beach, where I received a Reagan Medal from the Claremont Institute, and spent the weekend at a luxury resort on the beach.

8. What was your biggest achievement of the year?
The overruling of Poletown. Obviously this wasn’t entirely my achievement, but I like to think that the brief that PLF and the ACLU jointly filed helped persuade the court.

9. What was your biggest failure?
Powers v. Harris, where the Tenth Circuit held that economic protectionism for its own sake is constitutional, and singled out my amicus work for criticism.

10. Did you suffer illness or injury?
No more than usual.

11. What was the best thing you bought?
A 75 cent guitar on eBay.

12. Whose behavior merited celebration?
Erin’s. She is the kindest, most thoughtful, intelligent, and beautiful woman in the world.

13. Whose behavior made you appalled and depressed?
The Tenth Circuit Court of Appeals. And others whom it would be impolitic to mention publicly.

14. Where did most of your money go?
Credit cards

15. What did you get really, really, really excited about?
Taking Erin to Newport Beach.

16. What song will always remind you of 2004?
Probably one of the ones I’ve learned to play on the guitar. Robert Johnson’s “Malted Milk” as performed by Eric Clapton.

17. Compared to this time last year, are you:
i. happier or sadder? A little bit sadder.
ii. thinner or fatter? Fatter. I’ve been slacking.
iii. richer or poorer? Poorer. I just sent a $2000 check to the credit card company.

18. What do you wish you’d done more of?
Reading

19. What do you wish you’d done less of?
Monday morning staff meetings

20. How will you be spending New Year’s?
Probably reading The Chinese In America by Iris Chang (thanks, Erik!)

22. Did you fall in love in 2004?
Every day, I fall in love with Erin once again.

23. How many one-night stands?
None.

24. What was your favorite TV program?
The Simpsons, of course. What else is there?

25. Do you hate anyone now that you didn’t hate this time last year?
Hate is a strong word. There are people who lost a great deal of my respect. See supra, answer to question 13.

26. What was the best book you read?
The Metaphysical Club by Louis Menand

27. What was your greatest musical discovery?
Corey Osborn

28. What did you want and get?
The Simpsons season 5 on DVD.

30. What was your favorite film of this year?
Dangerous Beauty

31. What did you do on your birthday, and how old were you?
I turned 28. My secretary made me a peanut butter cup pie. My folks came up to visit and we went to Tahoe.

32. What one thing would have made your year immeasurably more satisfying?
If people really believed the principles they espouse.

33. How would you describe your personal fashion concept in 2004?
“Well, this looks clean enough.”

34. What kept you sane?
The blues.

35. Which celebrity/public figure did you fancy the most?
Richard Epstein.

36. What political issue stirred you the most?
The war

37. Who[m] did you miss?
Fortunately I get to see most of my friends and family pretty regularly. But when I’m out of town even briefly, I miss Erin.

39. Tell us a valuable life lesson you learned in 2004:
You must cherish your life and your loves while you have them. “[A] formula for the highest affirmation, born of fullness, of overfullness, a Yes-saying without reservation, even to suffering, even to guilt, even to everything that is questionable and strange in existence.”—Nietzsche.

40. Quote a song lyric that sums up your year:
“If it takes my whole life
I won’t break, I won’t bend
It will all be worth it
Worth it in the end
Cause I can only tell you what I know
That I need you in my life
When the stars have all gone out
You’ll still be burning so bright”
—Sarah McLachlan, Answer

Scalia and Breyer on foreign law

Kenneth Anderson has asked me to pass along the following notice: On Thursday, Jan 13, 4-5:30 pm at American University law school in DC, Justices Scalia and Breyer will hold a conversation on the topic of “The Relevance of Foreign Law for American Constitutional Adjudication.” For more information contact secle@wcl.american.edu.  The event will also be livestreamed on the web; details available beginning Jan 10 at www.wcl.american.edu.

Thoughts on the "Christian Nation" Battle:

In this culture war, when one side thunders, "we are a Christian nation" (or Judeo-Christian) and the other side roars back, "no we are not," the two sides seem to shout past one another, perhaps meaning different things, or, I think, many don't even understand what they mean when they spout such platitudes. Let me give some brief thoughts on how we are and are not a Christian Nation.

The United States is:

1) Demographically: Overwhelmingly predominately Christian (just like we are overwhelmingly predominately white);

2) Culturally: A mixture of both Christian and Pagan. Western Civilization has two sources a) Jerusalem (our religious or Christian source) and b) Athens (our secular or Pagan source). Christianity may have become dominant, but the Pagan or Profane never was completely wiped out. I agree with Camile Paglia that Western Culture is and always has been every bit as much Pagan as Christian. From Aquinas's coopting the teachings of the Pagan philosopher Aristotle (and let me thank those members of the medieval Catholic Church for preserving Greco-Roman philosophy), to the Renaissance, to the Enlightenment, to the Romantic period, the Secular/Pagan is every bit as important to Western culture as is the Christian.

3) Publicly: Our government is secular-or neutral on matters of religion. Race is the best analogy. Even though we are overwhelmingly a white nation, our public institutions ideally are colorblind. This sentiment in regard to religion is best summed up by the Treaty of Tripoli which states that "the Government of the United States of America is not in any sense founded on the Christian religion."

The statement in that treaty is, I think, a statement of historical fact. That document is often invoked in this "Christian Nation" battle and I've heard it said that 1) the phrase in question never made it to the final document, 2) treaties are federal law on the same level as Congressional legislation, therefore it's the law that we are not founded on the Christian religion. On the other hand that the treaty expired after a couple of years, therefore it's no longer law; 3) that the US made a desperate overture to Muslim pirates (the terrorists back in the day)....

None of this really matters; if you examine our two founding documents, -- the Declaration of Independence and the US Constitution -- it's clear that the government of the United States of America is not in any sense founded on the Christian religion. If it were, these documents would have said so. The Declaration and/or the Constitution would have invoked Christ or the Trinity, or would have cited Biblical passages; they didn't. The Declaration invokes a "Nature's God" (show me in the Bible where God is referred to as "Nature's God") and the Constitution leaves God out of the document entirely.

Now, as I mentioned, Christianity was and is a big part of our culture, therefore a document coming out of a Christian culture inevitably will be sprinkled with language that denotes this (yet, because our culture is equally Pagan, there will be Pagan language in there well).

And those who would argue that our Constitution mentions the Christian God show their desperation by clamoring onto the most minimal Christian references to be found there. For instance, in replying to the charge that the Constitution mentions not God, Thomas Krannawitter argues

In fact, the Constitution explicitly mentions God in Article VII, which dates the Constitution "in the year of our Lord one thousand seven hundred and eighty seven."

The fact that someone cites the customary way of stating the date in Christian cultures as "proof" of God in the Constitution goes to show how little that side has to offer. Western nations have, until recently, used the letters "AD" after the date. What do you think those letters mean?

When the constitution mentions "Sunday" will these folks argue that we were founded on Sun worship or "Thursday," the worship of Thor the Thunder God?

Note the fact that civil governments are in no sense properly founded on Judeo-Christianity doesn't mean that all references to religion need to be stripped from the public square or otherwise cleansed from our culture.

Western Culture is a unique admixture of Christianity and Paganism. As I've written before in the context of examining the Christian and Pagan elements of Christmas,

And what makes the West special is this unique combination, this tension between Athens and Jerusalem. The orthodox and the Pagan agree on some matters, vehemently disagree on others, borrow from one another and create separately and together. Indeed, this tension enabled the West to be the greatest creative force there ever was.

Another classic example is the LA County flag that features both a Christian Cross and a Pagan goddess of Justice. Or the friezes at the Supreme Court, which feature a public display of Moses and the Ten Commandments, surrounded by historical Pagan lawgivers. As this article notes,

[Moses] is given equal prominence with lawgivers from a variety of religious backgrounds, including Islam, Confucianism, sun worship, and both Egyptian and Greco-Roman paganism. While Moses is shown holding the tables of the Ten Commandments, Muhammad is shown holding the Quran, the primary source of Islamic law, and the first pharaoh, Menes, is shown holding the ankh, an Egyptian mythological symbol representing eternal life. Other figures are shown holding secular legal documents. England's 12th-century King John is shown holding the Magna Carta, which he signed, while the Dutch legal scholar and statesman Hugo Grotius is shown holding his 1625 book, Concerning the Law of War and Peace, one of the first books on international law.

If you don't believe me, check it out for yourself.

Sometimes I get the impression that the ACLU-type secularists want to strip all religious references from the Public Square. Note, the ACLU is often terribly distorted by the right-wing as wanting to stamp religion out from society altogether, like the Soviets. This is a terrible slander. The ACLU zealously defends the right to worship, but in private.

But as the case with the ACLU attempting to remove the cross from the LA County Seal reveals, some secularists of that mindset seem to want to strip anything religious from anything connected with government.

It would be better if secularists demand a public policy that accepts that civil governments are not properly founded on any religion (Christianity or any other) and government as such must remain neutral between the religions, and between religion and non-religion, but leave alone those religious references in the public square that 1) are made by private parties pursuant to a generally applicable neutral program or rule, and/or 2) reflect that Christianity (like Paganism) is an important part of the history and Culture of Western nations.

Restoring the wall

Robert Bork, darling of conservative lawyers, says American culture is such a cancer that he “almost began to want to put the [Berlin] wall back up.” Ha! Oh, what wit!

If you’re surprised by such a revolting statement, you haven’t been paying attention. Bork, like many conservatives I’ve blogged about, agrees with our enemies in this war: and his hostility to individualism and liberty is all too typical of the conservative movement.

Update: Some excellent points from Ed Brayton.

Update 2: Welcome Southern Appeal readers. I reply to Mr. Dillard here.

Kwanzaa

This is a must read.

Update: Aaron McGruder appears to agree.

Cahill versus Manchester

Sarah Hempel asks what I thought of A World Lit Only By Fire. I consider it one of the finest books I’ve ever read, particularly the final chapter, which I’ve re-read several times. Manchester was a great writer, and his depiction of the dark ages is the farthest thing from romanticizing.

Responding to one author’s “pietistic...admiration for the medieval churches, the pageantry of the age, its romance, it’s ‘spiritual passion,’ and above all, its interpretation of ‘Christ’s Gospel,’” Manchester writes “[n]o matter how hard I shake my kaleidoscope, I cannot see what he saw.” He goes on to demolish the “bogus aura of romance” that surrounds the dark ages—a period of time in which

nothing of real consequence had either improved or declined. Except for the introduction of waterwheels in the 800s and windmills in the late 1100s, there had been no inventions of significance. No startling new ideas had appeared, no new territories outside Europe had been explored. Everything was as it had been for as long as the oldest European could remember.... During the 1,436 years since the death of Saint Peter the Apostle, 211 popes had succeeded him, all chosen by God and all infallible. The Church was indivisible, the afterlife a certainty; all knowledge was already known. And nothing would ever change.... Shackled in ignorance, disciplined by fear, and sheathed in superstition, they trudged into the sixteenth century in the clumsy, hunched, pigeon-toed gait of rickets victims, their vacant faces, pocked by smallpox, turned blindly toward the future they thought they knew—gullible, pitiful innocents....

Id. at 26-27.

It is this age that our modern Christian conservatives look to for inspiration when they denounce the “alienation” caused by nasty modern technology and individualism. Anyone who has read the Russell Kirks, the Richard Weavers, the Robert Nisbets, or listened to lectures by the David Whalens and Robert Edens of the world knows that I am right. Thank god for writers like Manchester, who are willing to call point out how bogus that romance really is.

Highlights of CLE:

1) The burger and drinks that I bought at the Hotel Bar;

2) Bumping into an old friend from law school, also there to get his credits, whom I haven't seen in years...;

3) The fact that one of the presenters let us out at early and gave us a longer break so I could catch up with my friend over drinks at the bar.

But as to the substance of the three courses that I took, the most interesting subject matter was the employment discrimination seminar. However, the instructor was "so-so" in terms of his grasp of the subject matter and presentation.  Especially when it came to the First Amendment and Hostile Work Environment theory.

I found him to be especially insensitive to the notion that the hostile work environment theory might conflict with the free speech norm. He gave a few examples, for instance, of openly racist and sexist speech and expression in the workplace. He assumed arguendo that employers had an affirmative duty under present law to quash such speech if it occurred, or else be subject to a hostile work environment, Title VII claim. He rightly noted that private employers had every right to dictate what speech they would tolerate in their workplace -- but scoffed at the notion that private employers could permit openly racist or sexist speech and have a First Amendment defense against a hostile work environment claim if they chose not to forbid such speech or expression in the workplace.

He really needs to read this classic article by Eugene Volokh before he puts on another one of these seminars.

More on moral mass subjectivism

Remember that Judge Posner said that “morality is simply dominant public opinion.” Prof. Solum at Legal Theory Blog says that this is an “extraordinary statement.” I wish it were. In fact, it’s quite ordinary in today’s academic circles, where the idea seems to be generally accepted that whatever the majority does is right. It’s certainly common among conservatives, as Harry Jaffa has repeatedly (and brilliantly, I think) illustrated. And it’s certainly ordinary among lawyers, under the influence of Oliver Wendell Holmes.

Prof. Solum responds to Posner’s statement by saying that the term “morality” should be understood in two senses—in a sense roughly corresponding to courtesy (“the norms of a particular culture”) and in a deeper sense, “the realm of judgments about what is good and evil, right and wrong.” Prof. Solum argues that it is only in the former, and not in the latter sense that Posner’s statement is true. But his argument partakes of the Nazi example—and as we’ve seen, Judge Posner is willing to defend the Nazis in the second sense of morality: there is no sense, he says, in which we can say that the Holocaust was “evil” or “wrong.” It was just something for which our culture has distaste.

Among the reasons why Posner is wrong is that the boundaries of “particular culture[s]” are not sharp ones. As Richard Epstein argues in Skepticism And Freedom, suppose that a person inside a “particular culture” disagrees with another person within that “particular culture” about a moral proposition—a German Aryan in 1930 who doesn’t think they should kill the Jews. How does he speak to his fellow German Aryans? In what terms? His argument almost certainly will partake of some sort of human absolutes (“Es ist unrecht, die Juden zu toeten”) rather than just references to intra-cultural deduction. And if a German Aryan can say “it’s wrong to kill the Jews,”  why can’t an Austrian? Is that within the “particular culture” or not? If not, then can you only discuss morality with those who are in your state? Your neighborhood? Your block? Your house? At some point, we are each our own individual cultures.

And if an Austrian can say it, why can’t an American of German extraction make exactly the same substantive argument? And if an American of German extraction, why not an American of non-German extraction? The argument that morality is defined by a “particular culture” falls apart among other reasons because (a) the tools which a “particular culture” would use to create morality (if that’s what it actually did) are available to all persons—and those tools are the same tools which a natural law morality employs; and (b) because the definition of a “particular culture” is so vague that the argument is incoherent.

(Thanks to Eric Anderson for the German.)

Very nice

IJ has a pretty new website.

A machine that goes of itself

By eating flies.