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Apropos of today's Google logo

My favorite art critic, Robert Hughes:

"He didn't make his own stuff of course. No doubt Koons couldn't carve his name on a tree.... If cheap cookie jars could become treasures in the 1980s, then how much more the work of the very egregious Jeff Koons, a former bond trader whose ambitions took him right through kitsch and out the other side into a vulgarity so syrupy, gross and numbing that collectors felt challenged by it."

From the Commonplace Book

“Accuracy and diligence are much more necessary to a lawyer, than great comprehension of mind, or brilliancy of talent.  His business is to refine, define, and split hairs, to look into authorities, and compare cases.  A man can never gallop over the fields of law on Pegasus, nor fly across them on the wing of oratory.  If he would stand on terra firma he must descend; if he would be a great lawyer, he must first consent to be only a great drudge.”—Daniel Webster

Toleration and the FLDS

The Fundamentalist Mormon church is an organized crime syndicate which covers up its extortionate, oppressive, and/or coercive behavior by an appeal to religious freedom. Many of them are certainly sincere in that appeal. That does not change the fact that they are an organization whose activities involve the violation of the law and the violation of individual rights—not simply an “unusual way of life.” It is true, of course, that the mafia, the FLDS, and everyone else, have constitutional rights that must be respected, and that the state must not intrude on their privacy without having good evidence. But it would be a real shame if the FLDS were to be regarded in the public mind as just a quaint, harmless sect composed of consenting individuals who just choose a different lifestyle. That is not what they are: the FLDS systematically brainwashes and exploits innocent children, leading not only to oppression but to kidnapping, rape, and the corruption of public officials. Appeals to pluralism, diversity, or tolerance, are therefore largely misplaced. Those doctrines, like the Free Exercise Clause itself, are basically prudential or prophylactic concepts designed to prevent the state from enforcing rights-violating doctrines on individuals: that is, they exist in case the government falls into the hands of those who would violate our liberty. But they apply with far less force—or possibly none at all—to instances in which the state is protecting or defending individual rights against aggression. In short, the state ought to be restrained in its treatment of the FLDS only so as not to set a precedent which would allow the state to interfere with legitimate parental acts or the individual choices of adults.

I think we all agree on this when we think about it, but our tradition of religious tolerance is so strong that we can easily be seduced into thinking that if the FLDS wants to rape, abuse, neglect, oppress, or brainwash girls, that’s just a different way of seeing things, and that it’s their right and we shouldn’t say anything about it. The FLDS can appeal to religious freedom doctrines not because of the inherent value of their views, or of religious diversity itself, but only to forestall setting a precedent which would permit abuses of legitimate differences of opinion in other cases.

Tim Lee is right to be worried about the vagueness of the concept of “brainwashing.” But I think that in the case of the FLDS, the brainwashing is so extreme that it is worth pursuing such a case anyway. This isn’t a borderline case where parents are teaching “kooky but basically harmless forms of eccentricity”; nor does the mere difficulty of drawing lines in hard cases mean that lines don’t exist. Take, for example, the idea of “undue influence” in contract law. It’s hard to define, and its vagueness has led to many abuses by the state. But it has been described as “overcoming the will without convincing the judgment,” and that description is at least good enough to be used in extreme cases. (Note that this definition, whatever its vices, at least has an objective value packed into it: that convincing the judgment is the ideal, and the standard by which derivations are to be measured.) The children of the FLDS certainly have their will overcome without their judgment being convinced, and that seems good enough to justify, as an ethical/political matter, state intervention. As I said at the outset, however, it may not be enough to justify it as a legal matter.

More at PL & KH.

The Obama-Wright flap continued

Sen. Obama’s comments on Jeremiah Wright today were excellent. They were exactly the words that needed to be said, and they seemed sincere. Let’s assume that they were. Why did he not say them before?

Evidently because he knew that doing so would spark a conflict with Mr. Wright which would “distract” the media and the public entirely from the campaign itself. Wright is so fervent about his obscene, pseudo-intellectual fanaticism, that to criticize his views almost certainly invites a response from Wright which the media will eat up. And that can only hurt Obama more, as the weeks go by and he is repeatedly asked about the latest inanity to fall from Mr. Wright’s mouth.

That’s unfortunate for Obama, perhaps—but who is to blame for it? Obama himself, who for decades has chosen to embrace Mr. Wright. He did so for one of two reasons: either (a) because he considers Mr. Wright’s views respectable—which if true is disturbing, but which Sen. Obama claims is not the case—or (b) because he was cynically attempting to obtain credentials from a constituency that does respect those views. While the former situation makes us question Sen. Obama’s judgment, the latter must make us question his leadership, for what self-respecting political leader of a free nation would sit in a room listening to a man say the things Wright says, without getting up and walking out?

In the 1970s, a handful of European governments observed a memorial of the Katyn Forest Massacre, carried out by Soviet soldiers and covered up by the USSR ever afterwards. But the United States sent a representative. When Taiwan was expelled from the United Nations, in violation of the U.N. Charter, Taiwan’s representatives walked out of the hall, and America’s representative stood up and went with them. Can we expect an Obama Administration to show that kind of moral leadership if Sen. Obama has for so long maintained close connections with a man with such clownish and disgusting opinions?

More importantly, how can secularists excuse either (a) or (b)? How can secular liberals, who believe that religious fanaticism is a threat to our ways of life, or that elected officials should not curry favor with scary religious fanatics, approve of Sen. Obama having either (a) accepted Wright’s views as respectable elements of political debate, or (b) having tried to appease those who do believe these things?

Playing God in Yellowstone still doesn't work

Disturbing CNN story on problems with the bison population in Yellowstone. The story claims that the park overstocked on bison, leading to disease and trespassing problems; they then tried to cure the problem by culling the herd, which of course upset the activists, who may have pressured the government to shut down the culling program, at least temporarily. (It isn't clear from the story if that's the case, or if the government was already going to halt the slaughter.) Whatever the case is, maintaining artifical "balance" in the dynamic ecology of Yellowstone park is simply not something any human being, or bureaucracy, can do.

Volokh on FLDS

Prof. Volokh has some very astute observations on the FLDS raid. Volokh really is fair to a fault. The only thing I would add is that we don't just suspect that the FLDS violates the rights of girls. We know for a fact that it does, routinely, as a matter of lifestyle. The FLDS is bad news, and should be watched very, very closely. But that doesn't change the need for strong evidence when the state acts. Texas authorities may have acted without sufficient evidence (and they may not have subsequently found sufficient evidence) to intercede in this case. If anything this shows the danger of half-prepared efforts. It does not mean that the FLDS is the innocent victim of government aggression; it means that Texas officials need to be sure they have the legally required quantum of evidence to prosecute. Giving the devil his due process, is what that's called.

Incidentally, some time ago I wrote in defense of consensual adult polygamy, and argued that I believe not only that it  ought to be legal, but that cases finding that it isn't protected by the Free Exercise Clause are wrong and should be overruled.

Bush's and Gore's homes

A copy of this email was recently sent me. Very amusing.

Speaking of pinup girls

See if you can figure out who this beauty is.

That's right, it's Julie London, best known as Nurse McCall on the greatest TV show of all time, Emergency!

c/o

Compulsory curriculum standards and the First Amendment

I’ve been having a very interesting exchange with a noted First Amendment scholar about the degree to which the amendment does or does not bar the state from requiring children to be taught things. The question boils down to this: may the state require that children be taught certain substantive things (evolution/sex-ed/disputed historical events—what have you) in private schools? Or does the Constitution put limits on the state’s power to do so?

Kerry Howley on the FLDS

Kerry Howley writes,

[I]n what meaningful way is the authoritarian hierarchy of the FLDS not a government in itself? Yes, this is an issue of pluralism and freedom of religion and the autonomy of nonconformist groups, but surely it’s an issue of pluralism in conflict with other liberal values.

The question most relevant to the children’s autonomy is the possibility of exit, which in turn depends on the extent of their isolation and the quality of their education. How real is the choice to stay within this community as children approach adulthood? Carolyn Jessop reports that as a child, she was taught to be terrified of outsiders. The discarded boys seem to have a very tough time of it, which suggests that the adolescents have limited skills for coping with the outside world. According to people at Child Protective Services, the children in their care are significantly less mature than non-FLDS children of equivalent ages. And some of them will be married off at 16, perhaps bearing a few kids before gaining the emotional capacity to question this particular way of life. Jessop didn’t think she had a choice in marrying Merril and bearing his children–her sister had tried to escape and had been dragged back–and she didn’t acquire the courage to leave until she was a mother of eight. Walking away must take incredible courage of the kind few in the compound is interested in fostering.

Tough, important, good questions, and I don’t have the answers. I will say, I’m not entirely sure this is a reason for saying that our “conception of the rights of children is far too constrained,” but I do think this whole case points to a shortcoming in some of libertarian theory (a shortcoming, I hasten to add, that no other political theory has done any better at; children screw up every political theory, libertarianism less so than some). But the Hayekian conception of the open society as groups of people obeying their own social mores so that we can all learn which mores work is impoverished if it does not come along with some overarching conception of the human good—some guiding principle which can act to protect the innocent victims of insular, rights-violating communities like the FLDS. Hayek always seemed to me wishy-washy on this subject—he oscillates between concern that they are the product of “constructivist rationalism” on one hand, and on the other hoping that they will evolve from within the system.... He never really had an adequate answer to this.

But the point is that cultural relativism just ain’t gonna cut it—whether it be the attitude of “don’t care” whether girls are being raped in distant desert communes, or “don’t care” whether slavery be voted up or voted down. Without some universal standard, the competing-societies theory is a recipe for disaster, not for the open, or good, or even decent society. Note Howley’s comment, “The question most relevant to the children’s autonomy is the possibility of exit”—exactly. And the possibility of exit is a universal conception that must apply if the Hayekian world of walled-off communities is to produce anything good.