Freespace

Said the pot to the kettle…

Wait, wait. So the guys at the Volokh Conspiracy (the best blog on line) are narcissists who preen themselves before the blogospheric mirror…but KipEsquire is doing what, exactly? There’s no vanity in what he does?

Blogs are inherently an exercise in vanity. They are as Walt Whitman described:

I celebrate myself,
And what I assume you shall assume,
For every atom belonging to me as good belongs to you.

I loafe and invite my soul….

There’s nothing in the world wrong with that, but accusing a self-publisher of vanity is pretty much the silliest thing you can do—especially when you’re a self-publisher, too (and when most of the guys at VC have also written for legitimate publishers…).

Defining liberty

In a comment to my Crime And Federalism post about the Ninth Amendment—in which I argued that my own concept of liberty includes the right to choose suicide, but that the concept of liberty in the Declaration of Independence probably does not—David Giacalone writes that I “always write as if the definition of the word ‘liberty’ is clear as a bell,” and that I “disagree with the position of Brandeis history professor, David Hackett Fischer, on the various and varied meanings of ‘liberty’ and ‘freedom.’” He then demonstrates what “the meaning of ‘liberty’ for drafters and signers of the Declaration of Independence” was, by quoting a dictionary from fifty years after the signing of the Declaration. The first definition is “Freedom from restraint, in a general sense, and applicable to the body, or to the will or mind.”

Now, I’m not sure how this is relevant to what I said—especially since my point in my post was that my view of liberty differs in some important respects from the Lockean concept of liberty represented by the Declaration—or how Giacalone “know[s]” that I would disagree with Prof. Fischer. I’ve read very little of Fischer, and have mentioned him and his ideas not at all, so far as I can remember. Nor can I account for Giacalone’s tone, except that it’s probably related to his temper tantrum the other day.

Obviously “liberty” is a word that can have several meanings—many words are like this. But this mustn’t become an excuse for using words to mean the opposite of what they really mean. Abraham Lincoln warned us of this when he said that

We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatible things, called by the same name…. The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty…. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty.

Those who believe that “liberty” means the right of some people to deprive other people of freedom, are perverting that word, or using it irresponsibly. Consider, for instance, a hypothetical defender of anti-trust law, who believes that he has the right to prohibit a competitor from making consensual contracts, simply so that he can keep his prices up. Or a hypothetical defender of the welfare state, who believes that he has the right to deprive other people of their earnings, so that he can engage in the “liberty” of living off of that other person’s labor. This is the wolf’s definition of freedom.

We can get a good sense of what liberty means in the Declaration by consulting its foundations. John Locke tells us that liberty means

to be free from restraint and violence from others…and is not…‘a liberty for every man to do what he lists.’ For who could be free, when every other man’s humour might domineer over him? But a liberty to dispose and order freely as he lists his person, actions, possessions, and his whole property within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.

Thomas Jefferson writes 

If we are made in some degree for others, yet in a greater are we made for ourselves. It were contrary to feeling & indeed ridiculous to suppose that a man had less right in himself than one of his neighbors or indeed all of them put together. This would be slavery & not that liberty which the bill of rights has made inviolable and for the preservation of which our government has been charged. Nothing could so completely divest us of that liberty as the establishment of the opinion that the state has a perpetual right to the services of all it’s members. This to men of certain ways of thinking would be to annihilate the blessing of existence; to contradict the giver of life who gave it for happiness & not for wretchedness; and certainly to such it were better that they had never been born.

These definitions, of course, are consistent with the definition of liberty as “Freedom from restraint, in a general sense, and applicable to the body, or to the will or mind.” That is, so far as I can tell, precisely how I use the term. What I do not do—and I can only conclude that this is what sticks for Mr. Giacalone—is use the term to rationalize the deprivation of some people’s liberty so as to accomplish alleged social benefits for others—or to allow some men to do as they please with the product of other men’s labor. I don’t believe in the wolf’s definition of liberty. It is for this reason that I oppose the Regulatory Welfare State that Mr. Giacalone seems to cherish.

Private takings

Michael Rappaport writes, in answer to Orin Kerr’s question about private takings, “why did the Framers not write the Clause more explicitly to prohibit private use takings…? [I]t was regarded as unnecessary. No one thought that a taking for private use was legitimate.” Yes, and we know that because they said that “[n]o person shall be...deprived of...property, without due process of law.”

Properly understood, the Due Process Clause is a prohibition on private takings. The Fifth Amendment says, property shall not be taken for private use (the Due Process Clause) and if it’s taken for a public use, we’ll pay just compensation (the Takings Clause).

Arkes’ shortcomings

Amber Taylor makes excellent points about Hadley Arkes’ conservatism. Arkes is so strange. He can write something absolutely brilliant, like his The Return of George Sutherland—one of my favorite law books of all time, despite its shortcomings—and then come out and say the most absurd, ill-informed, unsophisticated, stereotypical, sloppy, fallacious things, that seem to capture all the worst things about conservatism in general. Arkes is a witty, intelligent, insightful, independent thinker. But sometimes and in some things absolutely out of his senses. (Little Ben Franklin quote there.)

Home of the Bravehearts

Are you a man? Do you wear a kilt? Do your friends make fun of you for it? Then Kiltmen.com is here to help fight Trouser Tyranny.

God is Who?

Okay, I know it’s a waste of mental energy to blog a response to a preacher on the radio whose name I don’t even know, but I can’t help it—just like I can’t help listening to the Preacher Radio (whatever it’s called) here in Sacramento sometimes. It’s more entertaining than all this crap about Chris Webber.

So yesterday on the way home, I heard this preacher on the radio saying that God is love, and therefore that you can read passages in the Bible and replace the word “love” with “God” and vice versa. He then proceeded to demonstrate this with the following famous passage from Paul’s first epistle to the Corinthians (NIV):

Love is patient, love is kind. It does not envy, it does not boast, it is not proud. It is not rude, it is not selfseeking, it is not easily angered, it keeps no record of wrongs. Love does not delight in evil but rejoices with the truth. It always protects, always trusts, always hopes, always perseveres. Love never fails….

He then proceeded to replace “love” with “God,” and produced a string of seemingly profound—but utterly nonsensical—phrases.

“God is patient, God is kind.”

Now, that doesn’t exactly seem to capture the personality of the Old Testament God, Whose wrath was so great that He wiped out the Egyptian army with the waters of the Red Sea, or Whose laws in Exodus include somewhat stringent punishments (“Ye shall not afflict any widow, or fatherless child. If thou afflict them in any wise…my wrath shall wax hot, and I will kill you with the sword; and your wives shall be widows, and your children fatherless.” (Ex. 22:22-24) ) or Whose anger in chapter 25 of the Book of Jeremiah is so great that he “will call for a sword upon all the inhabitants of the earth,” and “shall roar from on high,” and Who calls for a war whereby “the slain of the LORD shall be at that day from one end of the earth even unto the other end of the earth: they shall not be lamented, neither gathered, nor buried; they shall be dung upon the ground,” or Who was so disgusted at human sin that He flooded the earth and destroyed not only all but a tiny number of human beings, but every innocent animal as well. How kind was God to Job, for crying out loud?

Nor does this sound much like the New Testament God Who allegedly hates gays, or Who “will come in a day when [we] looketh not for him…[a]nd that servant, which knew his lord’s will, and prepared not himself, neither did according to his will, shall be beaten with many stripes,” (Luke 12:46-47) or Who says “mine enemies, which would not that I should reign over them, bring hither, and slay them before me.” (Luke 19:27). So far as I know the Judaeo-Christian world-view, God is indeed sometimes patient and sometimes kind, but is also often quite impatient, and unkind, and curses people “with a consumption, and with a fever, and with an inflammation, and with an extreme burning, and with the sword, and with blasting, and with mildew; and they shall pursue thee until thou perish.” (Deut. 28:22)

“[God] does not envy, [God] does not boast, [God] is not proud.”

Yet God repeatedly tells us “I the LORD thy God am a jealous God” (Ex. 20:5), and “thou shalt worship no other god: for the LORD, whose name is Jealous, is a jealous God” (Ex. 34:14) And boastful? In Job, God spends page after page telling the battered remnants of His favorite servant how awesome He is: “Then the LORD…said…Where wast thou when I laid the foundations of the earth? declare, if thou hast understanding.” If God isn’t proud, then the word proud has no meaning (and that is, of course, fine, since He’s supposed to be God, and has all the reason in the universe to be proud. But we can’t deny that He is).

“[God] does not delight in evil but rejoices with the truth”? But God makes a deal with the devil to test Job’s faith by wrecking his life, and He hardens Pharaoh’s heart against doing right with the Jews, so that He will have a pretext for bringing plague after plague on the Egyptians. “[God] always protects, always trusts, always hopes, always perseveres”? But the Bible is littered with fields of slain enemies of the Lord—whole tribes lying slaughtered on the pages of the Holy Book, with their spears and chariots in a thousand ancient fragments. Did he protect the victims of the Christmas tsunami? (This is not the same as asking why He caused the tsunami. Whether He caused it for good reason or not, He obviously did not protect people from it.) Always trusts? But He is also always watching us, like some extremely serious Santa Claus, ready to bring misery into our lives for our impertinence, and forecasting pain for our own (alleged) good. Always perseveres? Only in the sense that He is immortal. And what about “[God] keeps no record of wrongs”? It seems pretty obvious how that one doesn’t work.

I know there are Christian explanations for the difference between the wrathful Old Testament Monster and the supposedly gentler New Testament Lamb, but the New Testament is every bit as full of fury as the Old: “Think not that I am come to send peace on earth: I came not to send peace, but a sword.” (Matt. 10:34) And anyway, my point is not to say that God is a Big Meanie. He is, but He has the right to be if He wants. (And if you question His right to be, like Job did, you’ll be in trouble.) My point is that I respect a good fundamentalist fire-and-brimstone, repent or go to Hell kind of preacher—and so does God: “thou art neither cold nor hot: I would thou wert cold or hot. So then because thou art lukewarm, and neither cold nor hot, I will spue thee out of my mouth.” (Rev. 3:16) But the “gentle Jesus, meek and mild” sort of theology so popular in America today—what I call Marshmallow Christianity, typified by a sign I saw at a book show not long ago: “How to go to Heaven without going to church”—is just ridiculous. Defining God as love is  utterly trivial when true, and utterly untrue where it matters.

Update: Slithery D, sharp as usual, notes "the Orwellian dishonesty” of a God Who says "love me and worship me or be damned for eternity.” Orwellian is exactly the right word for it—the power dynamic is just right. In Animal Farm, Napoleon tells the animals that Snowball is a giant, powerful monster who is responsible for all the evil that happens, and that the only safety from his evil clutches is for them to serve Napoleon. In 1984, Big Brother tells the people, you must do as I say, or Goldstein will get you. The message from the church is the same—spook the people with terrifying ghost stories, and then teach them that safety is to be found in obedience.

More public use stuff

I have updated my Bibliography on the Public Use Clause.

More on socialized medicine

My mother writes

I can’t believe what that little girl and her family went through. What they have been deprived of. Sheesh! And your notes about why socialized medicine could cause something like this, you didn’t mention how hard it is to: A. get an appointment for a second opinion, or B. get that second doctor to go against the first doctor’s diagnosis.

When my Dad developed the beginnings of cancer, he was treated at the VA hospital, the closest thing to socialized medicine we have here. They diagnosed first that the tumor in his groin was a complication of an infection in a corn on his toe. They finally removed the tumor...only after it got so large that it was interfering with his walking. Then they diagnosed him with TB, and put him on medicine for that. TB medicine is horrible, it makes everything taste metallic. That’s when Dad stopped eating. They kept him on that for a year, until another test finally showed he didn't have TB. Meanwhile, he had developed difficulty urinating, and another tumor, this time on his stomach. He showed it to the doctor at the VA, and was put off with, “We’ll get to that later.”

About this time, my mother insisted that he see a private doctor. Dad called his cardiologist and begged him to see him. The doctor agreed, even though it was out of his specialty. He looked at everything, and immediately sent him to a urologist, who after one test, diagnosed bladder cancer.

We went to the VA, and my mother asked for all of his records. They refused. We went back the next day, and I had dressed in a nice suit, hose, heels, the whole nine yards. I walked up to the counter and said, “I need the records on Eugene Henderson, please.” They gave them to me, without question, we left and took him to City of Hope.

I have always blamed the VA hospital, in part, for Dad’s death. After weakening him for a year on TB medicine, leaving the cancer untreated, they left him in very poor shape to be treated at a real hospital. City of Hope did a fine job. They kept him alive for three more years, but there was really nothing they could do. If it had been diagnosed properly in time for his bladder to be removed, he might be here today.

Incorporating disestablishment

Jonathan Rowe comments  on my discussion about incorporating the Establishment Clause through the Fourteenth Amendment. He says that I “make a little bit too much of the notion that the Establishment Clause was intended to be a federalism only provision.”

Rowe is exactly right that the Fourteenth Amendment is a lens, not a window. The meanings of the Bill of Rights provisions that are incorporated by the Fourteenth Amendment are  changed by the Fourteenth Amendment, in the following way: the Fourteenth Amendment incorporates against the states the Bill of Rights 1868, not the Bill of Rights 1792. And by 1868, the Establishment Clause (as Rowe’s quotation from Cooley demonstrates) had come to be seen as a protection of individual rights, rather than, or in addition to, a federalism principle.

But in order for that to work, the Establishment Clause has to protect something that the Free Exercise Clause doesn’t already protect. I explained why at Panda’s Thumb—the Fourteenth Amendment (a lens, remember), only protects individual rights, not particular municipal arrangements. So if the Establishment Clause only creates a municipal arrangement, then a violation of that Clause would not “abridge the privileges or immunities of citizens of the United States,” or “deprive” any person of “life, liberty or property without due process of law.”

Rowe finds an extra principle in the Establishment Clause: “equality of conscience.” This “substantive norm of equality” is something that the Free Exercise Clause does not necessarily protect. States are therefore required not only to leave people alone to practice their faiths, but are forbidden from favoring one faith over another.

I love this. I think this is swell. Nifty, even. To make the case stronger, we need more evidence—from the Fourteenth Amendment’s drafting era, not from the 18th century—showing that this concept of equality was, indeed, part of the concept of disestablishment in the 1860s. Of course, Rowe notes that the complication in his argument is that equality is already protected under the Equal Protection Clause. But that may not be a fatal flaw. The Equal Protection Clause requires government to extend to every person within its jurisdiction the equal protection of the laws. But a principle of equality-among-faiths, aka a “substantive norm of equality,” may be different than the equal protection of the laws as extended to individuals. Suppose government gives a million bucks out of the treasury directly to the collection plate of the local fundamentalist Baptist church. My equal protection rights might not be violated by such a thing—since I’m not harmed; I’m just failing to receive a benefit. See Locke v. Davey. But my right to a “substantive norm of equality” may be violated.

Great argument. A little fuzzy, with some complications (for instance, Madison’s original draft of the First Amendment is actually evidence against Rowe’s interpretation, since it was not ratified, and therefore shows that the framers actually rejected the equality language), but it’s going somewhere. I should add that I’ve long been really skeptical of Rowe’s attempts to incorporate Establishment, but I think he’s really got something here.

Thoughts on suicide

At Crime And Federalism.