Toward a Locke-Burke Theory of Conservative Libertarian Secessionist Government

 

The father of Anglo-conservative thought Edmund Burke famously criticized John Locke for his belief in universal human rights. It was not that Burke believed in tyranny. On the contrary, Burke believed that liberty was best protected within a particular tradition. As such he believed that Englishmen had rights that came not from nature but from the particular development of English institutions. This served as the foundation for one of his major objections to the French Revolution. The French had good reason to object to the government of Louis XVI in 1789. Following the model of the English Glorious Revolution of 1688, what the French should have done was turn to French history, recognizing that French monarchial absolutism was really an invention of the seventeenth century, and reformed French political institutions to bring them back in line with French tradition. What the French did instead was claim to be acting in the name of the universal principles of liberty, equality, and fraternity, things that only existed in their philosophy books. Because universal rights are imaginary constructs in people's heads, the French, unwittingly, unleashed chaos among themselves. Now everyone was licensed to engage in violence in the name of protecting their rights as they understood them. This led to the Reign of Terror and ultimately to the dictatorship of Napoleon.  

As a product of the American conservative tradition, I have been raised with the paradox that my political tradition is John Locke as mediated through the American Revolution. This means that I have the right to overthrow my government if it violates my right to life, liberty, and the pursuit of happiness. This doctrine is kept in check from turning into the French Revolution by a "Burkean" reverence for the Constitution. One thinks of the example of Sen. Barry Goldwater, whose conservatism did not mean going back to the Hanoverian dynasty but the Constitution. This marriage between Locke and Burke, while it has its tensions, is far more workable than it might first appear. For me, this is possible because I am also a libertarian, who believes that government is inherently illegitimate.      

I confess to being agnostic about the nature of rights and their origins, but I am an ethical individualist. My starting point for ethics is that of individuals and not groups. It is individuals who negotiate social contracts where we agree not to do bad things to other people in return for those people not doing bad things against us. This is simply an empirical fact. Every child on a playground learns fairly quickly that other children will hurt them if they pick a fight. As such, it is best not to go around picking fights. That being said, there are going to be bullies who will attack you no matter what so, therefore, you have no choice but to fight back.  

Following this logic, I have the right to shoot the person who comes to my door to collect taxes. I never agreed to pay taxes. As such, the tax person is a bullying thief, who should be resisted. It is here that my inner Burke, recognizing how truly monstrous such a conclusion is, applies the breaks. One, while it might be my right to fight a rebellion rather than pay taxes, it is hardly in my self-interest to do so. I have no desire to declare to a bombed-out civilization that I was in the right. (Admittedly, part of me would take great pleasure in doing this, but the sane part of me would honestly be horrified at the thought.) Second, I assume that the tax person is actually a decent fellow at heart. They probably do not want to initiate violence. They did not create our political system. They are simply doing their best with the system that they are given. It is hardly obvious to me that they are wrong so I should give them the benefit of the doubt in assuming that they at least doing what they think is right. As such, while I am not saying that it is ok to be a tax collector, I am willing to grant them absolution for their actions. 

This leads to the conclusion that, while, in theory, I may have the right to rebel against any government that is not of my choosing, essentially all governments that have ever existed, I accept that this right is trumped by any government founded upon conservative principles. By this, I mean the notion that there are institutions that have evolved among humans even though they are likely not of human design. These institutions facilitate human flourishing even if they are incredibly flawed. As such, one does not have the right to tear these institutions down, causing great harm to the public, simply in the name of abstract principles. If a traditional hereditary monarch were to come to my door and ask me to pay taxes as my ancestors paid to their ancestors, I would bend a knee and pay. How much more so, if I were to be asked by a president acting to honestly hold up the Constitution, such as an alternative universe Barry Goldwater?

It is here that not only does my Burke make me a conservative, but so does my Locke. While my Burke forces me to quiet my Locke in obedience to a conservative government, it is that quiet but still essential Locke inside of me that allows me to resist revolutionary or progressive governments. By this, I mean governments that gain their authority from the belief that their leaders have the right to refashion society based on their preferred theory that they learned about from a philosophy book. Such a person has no absolution for their actions. They believe that their actions are not merely making the best of an imperfect situation but are achieving justice. As such they must be held accountable for every act of violence they cause to be committed. If revolutionary progressives are going to force their version of justice on me, I have the right to strike back by insisting upon my justice, which declares them to be thieves or even murderers and grants me the right to secede and create my own government.   

It should be noted that Burke himself supported the American Revolution. As Yuval Levine argues, this was not because Burke believed in life, liberty, and the pursuit of happiness as universally valid principles. For Burke, it was Parliament that had violated traditional norms by trying to directly tax the colonies. As such, the colonists were the ones trying to defend their traditional rights as Englishmen as best they could. In essence, while most people today focus on the first part of the Declaration of Independence and ignore the rest, Burke ignored the first part but accepted the rest.      

Brute Textualism For a Diverse Society

 

In any society, there is going to be a trade-off between the physical text of the law and the unwritten assumptions that we bring to the text about what purpose it serves. In theory, it makes sense to privilege the unwritten text as that will bring your legal system closer to the set of values you wish to endorse. The catch is that this can only work in a society where everyone shares the same unwritten constitution and a moral vision for what they want their legal system to accomplish. In a country where this is not the case, the only practical option is brute textual legalism. 

The reason for this is that we have every reason to assume that people have no intention of living under the authority of an unwritten constitution whose moral values they oppose and are likely, if pushed into an extreme enough situation, to reject the authority of the Federal Government, plunging the entire country into Hobbesian civil war. For example, imagine if the Supreme Court were to decide tomorrow that, in place of a right to privacy, the underlying assumption of the Constitution was white supremacy. Keep in mind that Taney made precisely this argument in Dredd Scott. In this reading of the Constitution, man is assumed to mean white men with blacks being given no legal protection. The Court then rules that slavery should never have been abolished and the modern descendants of slave owners should be able to reclaim the descendants of their ancestor's slaves as their rightful property. I would hope that my readers would support taking up arms to kill police officers who agree to round up African Americans even if this will plunge the country into civil war. 

From this perspective, being on the Supreme Court is a lot like being on a nuclear bomb squad. If the justices make a big enough mistake, they risk blowing up the entire country. In 1973, the Burger Court, in its hubris, put the entire country in danger by enshrining the sexual revolution constitution. This forced religious conservatives into choosing between living under a set of laws directly opposed to their values or taking up arms against the government. Conservatives worked for nearly fifty years within the system to overturn Roe. It very well may have been this belief that they could win legally that kept them from turning to violence. Over the years, we have seen individual actors assassinating abortion providers. How many conservatives out there secretly supported these murders at least in principle? If the liberals on the Court had gotten their way in Dobbs and crushed any conservative hope for victory, who knows what conservatives might have done out of desperation? 

Of course, Alito and the other conservatives on the Court are also now taking a risk in overturning Roe. It is possible that leftists will mount an insurrection of their own. We know of one person being arrested for trying to kill Kavanaugh after leading members of the Democratic party pretty much point-blank called for someone to kill a justice to save Roe. It is frightening to consider how close this country came to civil war because of one person. What do you think would have happened if the attempt on Kavanaugh had succeeded? Do you believe that conservatives would have simply accepted this "tragic misfortunate" action of a single "deranged" individual, not the work of the Democratic Party, and now, after coming so close they were not going to be able to overturn Roe?   

This framework helps us understand the value of brute textualism. In a world in which one faction might turn around and try to murder the other half if they think the other half is trying to force their values upon them, the only sane solution is for justices to rule in such a way that it becomes difficult for their opponents to accuse them of simply engaging in sophistry to justify whatever policies they prefer. This can be done through textual style originalism. This allows judges to tell their critics: you may not like the ruling but your argument is not with me it is with the Constitution. Come back to me when you have passed an amendment to the Constitution and I will support you. 

A useful thought experiment is to ask whether a justice's legal philosophy will ever force them to uphold the constitutionality of laws they oppose or overturn laws they actually support. If the answer is no then their philosophy can be dismissed as ad hoc justifications to force their values on you. They have betrayed the Constitution, giving you a plausible moral justification to ignore their ruling or to kill the judge even at the risk of igniting a civil war. 

In a world where all relevant parties share a common set of values, it makes sense to allow a more flexible approach to law. For example, I am going to approach Jewish Law with a specific set of values. In my Judaism, rabbis should not agree to perform same-sex weddings but still insist that it is a sin to lift a finger to initiate harm against homosexuals or even to mock those who struggle with this issue. I recognize that, with this statement, I have likely antagonized Jews on both the left and right and both can plausibly argue that my position is not based merely on Jewish texts but on my personal values. That is ok; such people are free to form their own version of Judaism. I am not trying to force my values on anyone. 

The United States has over three hundred million people living within its borders. Most of them have little in common with each other either culturally or in moral values. It makes about as much sense to have people from Mississippi and Los Angeles in the same country and subject to the same Constitution as to have either of these groups joined to the residents of Islamabad. As such, I think the only practical solution would be to divide the United States or implement such vigorous federalism that the Supreme Court has little opportunity to interfere with States or enforce much of any personal unwritten constitution. 

The next best solution would be textualist originalism enforced with full brutality. This will lead to many horrific conclusions. Ideally, both the left and the right in this American marriage will be left incredibly unhappy. Whenever a textualist decision leads to results that you find obscene, console yourself with the understanding that you are making a compromise with the other side so that they will not feel the need to deliver the first strike in a civil war by massacring your side in the streets. 

The Unwritten Constitution: Why Roe Matters

 

I was at my wife's grandmother's place in New York when I saw a news flash on my phone that Roe vs. Wade had been overturned. Even as I had been expecting this result ever since the opinion leak, this still came as a shock to me. Throughout my life, Roe was one of those facts about American political life. Yes, Republicans dreamed of getting rid of Roe, but there was no way it could actually happen. As someone who has moved around a fair bit along the choice vs. life spectrum over the course of my lifetime, I have long found the passions aroused by abortion to be mysterious. Consider the no longer hypothetical situation we are in now with the end of Roe, what has actually changed about abortion law in America now that the Supreme Court has overturned Roe? In truth, almost nothing. Here in California, abortion is as legal as it ever was. For those women living in states that are now banning abortion, what has changed for them is that they might have to spend a few hours on a Greyhound bus. Getting rid of Roe is not going to stop anyone from having an abortion so why did liberals and conservatives spend nearly fifty years fighting over Roe?

The key to understanding the importance of Roe lies in thinking of it in terms of an "unwritten constitution." No one ever interprets a text without a set of assumptions that serve as interpretive lenses for how to read the text. Conservatives are certainly correct in pointing out that, unlike the right to guns which the Court just protected, the Constitution never says anything about a right to abortion. That being said, this does not necessarily mean that it should be easier to buy a gun than to get an abortion. It all depends on what sort of unwritten constitution you believe in. If one does not approach the Second Amendment with the assumption that gun ownership is essential to citizenship in a free society then the right to bear arms becomes nothing more than a quaint text that should not be allowed to get in the way of public safety. From there it is easy to say that the Second Amendment only refers to members of militias carrying Eighteenth-century-style muskets. 

On the flip side, if you assume that the purpose of the Constitution is to allow people to pursue their own happiness in defiance of established sexual mores, then it does not matter if the Constitution never actually says this, this is what the Constitution really is. (Note that the Constitution says nothing about a right to pursue happiness. That is in the Declaration of Independence.) 

As strange as it may sound, it is the unwritten constitution that carries the greater authority. You can argue with a written text and attempt to limit it in all sorts of creative ways. The unwritten constitution is meant to be so thoroughly embedded in the thinking of society that it should be impossible for members to think in any other way. In fact, what is not written can serve as bait to draw out the heretic into revealing that they do not share the fundamental assumptions of the rest of society. For example, do you believe that the First Amendment establishes a "Separation Between Church and State?" If you said yes, you are factually incorrect. The Constitution says no such thing. As with the pursuit of happiness, that was Thomas Jefferson, who was not even part of the Constitutional Convention. If you are of a liberal disposition, this fact should not matter. On the contrary, the conservative who points this out has simply demonstrated that fail to appreciate the "soul" of the Constitution, i.e., they do not accept the unwritten liberal constitution. 

The battle over Roe was never really about abortion but the unwritten sexual revolution constitution that, following in the footsteps of Griswold, it furthered. In essence, the Court was saying that it was an essential right for young women pursuing college and a career to be able to have pre-marital sex without having to worry that, if something were to go wrong, they might have to choose between marrying the father or becoming single mothers. If you are committed to building a society where there is no stigma attached to women pursuing careers and having pre-marital sex then it is going to be necessary to remove the stigma attached to abortion by not just making it legal but enshrining it as a constitutional right in a similar sense as being able to stand outside the White House waving signs.  

When I last visited DC, I made a point of taking my son to see the wide variety of people protesting. It did not matter that I personally disagreed with many of these people. I accept that all of them, even the "smelly weirdos," were doing something positive. It is essential for me that we live in a country where it should be thought of as perfectly normal and uncontroversial to stand outside the White House and say bad things about the president. Note that if you were to tell me that none of this is in the Constitution, which only says that people can assemble to seek redress but not to insult politicians, you would be correct but you would also be demonstrating that there is a larger "soul" to the Constitution that you do not comprehend. 

Being able to publicly say bad things about elected officials (as opposed to strongly implying that you would not be particularly bothered if they were murdered) is part of my unwritten constitution. The idea that the secular state must be backed by a broadly religious society with strong families and a conservative sexual morality is also part of my unwritten constitution. By contrast, the sexual revolution is not part of my unwritten constitution.        

An easy way to see the role of the sexual revolution constitution in Griswold and then Roe is to consider what should be an obvious question. If people have the right to make decisions with their own bodies and in consultation with their own doctors, why is there no constitutional right for drug use or to sell their organs? To accuse people on the left of hypocrisy is, in a sense, to miss the point. There is no deep narrative entrenched within the mainstream left where drug use and organ selling become essential to who people are and to take their place as citizens. By contrast, birth control and abortion have this larger narrative that is more important than any technical legal arguments, which only serve to justify the sexual revolution constitution after the fact. 

Similarly, one can point to the claim of protecting women's rights. The Constitution does not offer special protection for women. The sexual revolution constitution, by contrast, does. In the narrative of the sexual revolution, women are a group oppressed by traditional sexual mores. In order for the Constitution to remain legitimate, it must be read in terms of the sexual revolution. Anyone who argues that the Constitution has no category of women's rights may be factually correct but they have also demonstrated that they are not embedded within the assumptions of the sexual revolution. 

It should be noted that it is possible to want abortion to be legal to a large degree without wanting it to be a constitutional right. I would consider myself to be within this camp. There are lots of things that I want to be legal but not to be expressed directly as constitutional rights. For example, I want adultery to be legal and oppose any attempt by the government to punish infidelity. Similarly, I want marijuana and even heroin to be legal. That being said, I do not wish for them to be declared constitutional rights. To do so would be to accept an unwritten constitution where extra-marital sex and drug use are accepted as positive actions in the same sense as peaceful protesting. 

I am fine with the Supreme Court saying that the federal government has no authority over what people do with their bodies as long as they are not causing physical harm to others. The right of people to pursue their own good in their own way as long as they are not causing physical harm to others is part of my unwritten constitution. This will lead to the de facto legalization of adultery and drug use. Once this has been accomplished, we can discuss whether this constitutional right to bodily autonomy includes abortion or whether fetuses, in some sense, count as living beings with a right to not be murdered.      

Certainly, in the short run, I do not expect the number of abortions nationally to drop. The importance of the Dobbs decision is that it takes away the moral high ground from the left. They no longer have the grounds to claim that abortion is a constitutional right. That being said, I do not expect leftists to back down and soften their rhetoric. On the contrary, we should expect an all-out attack on conservatives for daring to not accept the constitution of the sexual revolution and upon the legitimacy of the Supreme Court for acknowledging that there can be another framework for reading constitutional law. With the overturning of Roe, the stakes have been raised over the sexual revolution constitution. Either we must accept that a group of Gileadists has conspired to take over the Supreme Court and destroy the Constitution in order to enslave women into marriage and motherhood or that the Supreme Court was taken over in the mid-20th century by leftists who rewrote the Constitution in order to enshrine the sexual revolution and that this unwritten constitution has now been rejected. Either way, I expect that there will be little room to make the practical good-faith compromises that might create a workable legal framework for abortion

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Emes Ve-Emunah and the Horrors of a Libertarian Society

Baruch Pelta just sent me a recent post by Emes Ve-Emunah on the issue of gay marriage. It is a pretty good piece attempting to balance a principled opposition to gay marriage with an honest caring for individual homosexuals. Then at the end he drops this bit of wisdom.

The ultimate libertarian ideal is to make no value judgment at all placed on any behavior that is private and among consenting adults. As long as you do not hurt or force yourslef on others – who cares what goes on in the bedroom? Sex between siblings – if they agree - why not? Mother-son, father–daughter? …as long as they are adults and agree, why stop them? Do we as a nation really want to go down that path? Without the bible what possible objection could one have?

Do we want to go down this path? Why not? If people wish to not live under biblical principles and violate every sexual taboo in Leviticus why should it be my problem that I should risk my life and liberty threatining them with government sanctioned coercion, inviting them to retaliate in kind? I accept the Constitution, not the Bible, as the basis for our legal system. So yes I have no possible objection. (See Religious Choices.)

Fox Attacks Libertarianism

A major part of my political evolution these past few years has been a realization that, even as I still accept much of the conservative critique of the modern liberal establishment, I did not fit into the dominant model of conservatism as displayed on Fox news and right wing talk radio. This is not to say that I do not feel a strong affinity for John Stossel and Judge Andrew Napolitano, who both have shows on Fox. For then there are attack pieces like the following written by Kevin McCullough and posted on Fox. McCullough sees evidence of libertarians being "disrespectful" to the Republican party by "hijacking" the CPAC poll, leading to libertarian Ron Paul victory with Gary Johnson, also with strong libertarian credentials, coming in third. According to McCullough:

It has been the inclusion of the libertarian aspects of the past two years that has thrown the message of conservatism askew in a widely disproportional way.


It is the libertarian in attendance that produced the free pornographic calendar passed out to attendees in 2010. It is the libertarians in attendance who openly promote the inclusion of groups like GOProud, largely as an attempt to silence groups who would speak in strong support of traditional moral values. It is the libertarian in attendance who slandered President George Bush, by claiming his appreciation for the Constitution was best summed up as a "damn piece of paper." It is the libertarian in attendance that proclaimed the war to prevent terrorists from regathering strength and coming after our homeland as "illegal." And it is the libertarian in attendance that eschewed, booed, cajoled and screamed "war criminal" to Vice President Dick Cheney, a man who served his country with commitment and still attempts to help the world understand the threat of the radical Islamic element devising plans to eliminate us and our allies.

McCullough concludes by saying:

Libertarians and Conservatives are as different as Libertarians and Liberals. The truth is libertarians are the worst form of political affiliation in the nation. Combining the desire of economic greed, with the amoral desire to promote any behavior regardless of its cost to our culture is a stark departure from the intent of the Founding Fathers.


So what does it mean to be a libertarian? I am not sure about handing out pornographic calenders, but welcoming gays, questioning Bush's commitment to the Constitution, believing that throwing around the word "terrorism" is not a legal blank check and finding Dick Cheney to be an all round worthy target of ridicule seem like good places to begin. So if Fox conservatives decide that I am not a "good conservative," whose "greed" for money leads me to not use government to protect Christian culture I guess I can live with that.  

In Support of Public Schools Teaching Intelligent Design and Other Nonsense III

Baruch Pelta, in his second post, gets nasty, accusing me of putting up a "destabilizing lie meant to pull emotional strings." Yes, I have the nerve to compare his mode of dealing with opponents to that of Haredim in that, while intellectually he may understand that people disagree with him, at a psychological level he fails to internalize this. This gets him stuck on the fact that he is "objectively" correct. (Note that I did not accuse him of being a Nazi, which is what I would have done if I were trying to simply score polemical points.) One should not think ill of Baruch; this is a problem that afflicts most people. Being a true liberal, one who respects all beliefs and refuses to use any physically coercive measures, even against those he disagrees with, to force people to go against those beliefs, requires years of disciplined critical thinking. It is something I still strive to work on in myself.

 A useful exercise is to think in terms of x and y instead of actual ideas. X and y are both ideas held by people living in society. In order to get x and y supporters to not force their beliefs on the other, they need to be promised that the other side, in turn, will not try to force their beliefs on them. Now x might be evolution and y creationism, but that is irrelevant in face of the more abstract x and y social contract model we agree to serve. Thinking in abstract terms allows you to get around the psychological hang-ups we all have about the beliefs that seem to us to be obviously true.

Working as an intellectual historian also helps. For example, I have been spending much of my time these few months trying to understand Sabbatianism. It is not my place to judge those who believed that Sabbatai Sevi was the Messiah. If it seems absurd to me then I have to work all the harder as seeing Sabbatai as they might have and put myself in a frame of mind in which accepting Sabbatai as the Messiah can become reasonable. This is done by immersing oneself in the words of Sabbatians themselves and their worldview.

In terms of actual arguments, Baruch challenges my larger definition of religion, pointing out that the Constitution specifically refers to religion and not to ideas in general. Fair enough, but I would point out that, in the eighteenth century, the only examples of large-scale organized ideological groups, the kind that might have the power to overthrow the government in hopes of being able to force their beliefs on others, were religions. Keep in mind that the main "religious" concern of the Founding Fathers was to not have Catholics and Protestants repeating Europe's religion wars of the sixteenth and seventeenth centuries on American soil. I assume that they would have adjusted their terms if they were writing only several decades later and saw the Communist Party. At the end of the day, it does not make sense to have one set of rules for the Catholic Church and another for the Communist Party. Baruch, are you suggesting that the beliefs of Communists are outside of the first amendment? Richard Dawkins, of all people, has essentially made my argument that religion should not be treated any differently from any other belief. I agree with Dawkins that being a Quaker should not offer you special conscientious objector status not available to people who are pacifists on simple intellectual grounds.
 

In Support of Public Schools Teaching Intelligent Design and Other Nonsense II

Baruch Pelta has responded to my earlier post. I think it is important to note that he is unwilling to openly come out and support the legitimacy of public schools; essentially he is "agnostic" in regards to this issue. He does raise two arguments. One, allowing the teaching of creationism and intelligent design would violate the separation of Church and State. Two, it is possible to make a distinction between religion and other ideas as demonstrated by the fact that we have a separation of Church and State. Finally, Baruch asks that I define what I mean by "liberty."

If we are going to have public schools, I do not object to these schools teaching children, as a historical fact, that Jesus is their Savior as long as this directive does not come from the government itself and no public funds are specifically earmarked for this purpose. The reason for this is rooted in how, as a libertarian, I understand the role of government. Government only has a legitimate interest in protecting people from direct physical harm. A teacher, even one working in a government funded school, standing up and trying to convince students to accept Jesus causes no physical harm. Therefore it is of no interest to the government. (If the teacher were to hand out bonus points to those who accepted Jesus then that would be a different matter.) The fact that non-Christian students might be uncomfortable in such a situation and feel left out is irrelevant. This is what it means to live in a free society. You open yourself up to every manner of non-physical torment and you must learn to live with that and accept that the government cannot in any way be used to help you in this matter.

As to the issue of Church and State, it is important to keep in mind that it is not a legitimate legal concept, but a letter from Thomas Jefferson wrongfully brought into play in the twentieth century. Regardless of that matter, I understand the Constitution's establishment clause to apply to all ideas. Outside of a belief in the legitimacy of the legal system itself, the government has no businesses declaring any idea to be true or false. This goes for Jesus dying for the sins of the world, evolution and the Holocaust. I am even willing to go so far as to argue against tolerance education. The government may tell white supremacists that they need to follow the law and not murder blacks and Jews, but the government has no business telling these people that they should support a multicultural society as something positive.

As to the definition of liberty and how it might apply to children; I understand liberty as the ability to pursue your own good in your own way as long as you do not cause direct physical harm to others. As J. S. Mill pointed out, this concept does not apply to children as they are deemed as lacking the mental capacity to engage in the give and take of ideas. Children are placed under the control of guardians who therefore also take up the liberty that the child would have exercised if it were an adult. The only limit on this is that the guardian cannot cause direct physical harm to the child. That would bring the attention of the government which would have the right to step in and remove the child and place it in an environment where it would be less likely to suffer direct physical harm. (Think of the libertarian government as a deadly trip-wire alarm system. As long as no one is being physically harmed, the government is silent to the extent that you should not even realize that it is there. The moment that someone steps on the wire and causes direct physical harm to someone else, all of a sudden the government springs into existence and takes out the offender, with physical violence if necessary.) Part of the social contract we sign is that we allow people to come to harm through their ideas. This includes their children, whom they have the right to raise according to these ideas. If someone thinks that sweatshops or even brothels are good places for a child to receive an education then so be it.

This might sound funny coming from an Asperger, but I see Baruch as suffering from a lack of a theory of mind. (See Neurotypical Mental and Emotional Handicaps.) This goes back to our original discussion about parents raising their children. At a physiological level, Baruch simply does not get that there are other people out there who believe differently from him and are equally convinced of their beliefs as he is. Baruch thinks that it is so obvious that he is right that if he repeats his arguments or has the government step in and support him as being right, those other people will eventually come to their senses; Christians, Haredim, and white supremacists will suddenly realize that they are superstitious intolerant bigots, apologize to Baruch for being such naughty children and go home. Of course when those people follow this same line of thinking and try to use government to support their ideas against Baruch then that is them being intolerant and trying to impose their values. In the real world there are true and false beliefs (gravity being a good example) and those beliefs have consequences. In the politics of a free society there is no true and false. There are just people's opinions and a system designed so that these differing opinions do not turn into people killing each other over them.

On a final note, let me give a shout out to Baruch Spinoza, a fellow opponent of public schools, who has joined in on the debate.

De-Citizenship Trials in Practice: Tolerating Fred Phelps

Vox Populi, a regular commentator on this blog, has just started a blog of his own where I have been going back and forth with him on the issue of tolerating Muslims. As I have argued here in the past, in addition to the usual restrictions on free speech such as the inability to "shout fire," incite to violence or be a public nuisance, one is also limited by inability to make statements, or even to hold beliefs, that challenge the legitimacy of the system. This disqualifies the beliefs of most extremists, whether from the left or the right, secular or religious, Christian, Muslim or Jewish. Such people would be outside the protection of the First Amendment and could be targeted by the government. In fact, it may be necessary for the government to not allow such people the protection of the First Amendment.

To be clear, this does not limit normative disagreement, even very strong disagreement. I am allowed to believe that President Barack Obama's health care plan and stimulus package are mistakes that will bring disaster to this country and even cost lives. I can believe that both Christianity and Islam are not "True" religions and do not help their believers "get right" with God. I can believe these things as long as I accept that both Obama and my Christian and Muslims neighbors are basically decent people and patriotic citizens, who came by their mistaken beliefs honestly. This allows me to accept Obama as my legitimate president, as called for by the Constitution, and Christians and Muslims as fellow citizens.

What I would like to discuss here are the practical matters involved. How would we, in practice, go about stripping such people of their citizenship and avoid turning this into a tool of legitimate free speech suppression. Take the example of Fred Phelps, the minister of the infamous Westboro Baptist Church. Phelps believes that "God hates fags" and that American tolerance of homosexuality has caused the death of our soldiers in Iraq. To make his point, he and his followers have even taken to picketing the funerals of American soldiers.




To put this in context, this is the sort of anti-gay hate speech that even Ann Coulter denounces.

I do not care if Phelps is "intolerant" or engaging in "hate" speech. What is of concern is the fact that Phelps not only does not agree with American policy but no longer accepts the legitimacy of the United State government. For example, the Hebrew prophets, whom I presume Phelps looks to as his models, could denounce the individual sins of the people of Israel without ever questioning that they were people of God. In fact, it was precisely because they were the people of God that the children of Israel had need of being rebuked. Elijah may have denounced King Ahab as an idolater and murder, whom God would punish, but he never challenged the fact that Ahab was a legitimate king. Phelps makes no such distinction. His world is one in which his small group is righteous and everyone else is wicked beyond redemption.

I see nothing objectionable with having the government sue Phelps, drag him into court and put to him some very simple questions: considering what he believes about the United States, does he consider himself an American citizen bound by American law, and if so how does he justify, not the belief in the iniquity of the United States, but his part in it as an American citizen? This exercise would be worth it just to make Phelps squirm, trying to answer these questions with a straight face. He would not have to convince any judge or jury to sympathize with his world view or even agree with how he rectifies this dilemma. All we are asking him to do is to convince a judge or jury that he believes his own answers and that, in his own mind, he is not trying to put one over them, secretly laughing at their gullibility. Failure to do this would result in his being stripped of his citizenship. He would still be allowed to live in this country; he would not be put in jail or even fined. All this would mean is that he would lose his ability to vote, access to government services and the ability to take part in public discourse.

It is important to understand that we would not be coming after Phelps for any of his beliefs per se. Our only objection to him is his breach of contract. In civil law, if one signed a contract only to find out that the other person did not believe himself bound by this contract, one would be justified in suing for breach of contract and demand to be released by the court from this contract. In this case, it would be irrelevant that the contract has yet to actually be broken. It is enough that the contract was not entered in good faith. Government is a contract signed between government and citizens. Before we can begin to talk about the parties fulfilling their parts of the contract (like the government protecting the free speech of citizens) all parties need to be acting in good faith and accept the legitimacy of the contract. If one of the parties, say Citizen Fred Phelps, is not acting in good faith then the contract is off. I am not about to lift a finger to protect his First Amendment rights unless I am convinced that he is willing to do the same for me. The Constitution is not a suicide pact.

The course of action I am outlying is not one of "I will only tolerate tolerant people." Such notions of tolerance are meaningless and can be dismissed as cover only people one agrees with as all beliefs imply some form of intolerance. I would be perfectly willing to accept Phelps as a citizen despite him being an "intolerant" person who believes in making homosexuality a crime. He can even believe that we are a sinful nation for tolerating homosexuality and that God is going to punish us as long as he believed that the United States had the "right" to make laws tolerating homosexuality and the United States government was still rightfully his government. To convince me that he holds this I would have to see him saying things like "Oh Lord! As Isaiah said: 'Behold I am a man of unclean lips dwelling amongst a people of unclean lips.' This is a nation of homosexuality tolerating sinners, but I pray that you forgive them for they have come to these sins in good faith seeking to follow a just Constitution. These are my people and as Moses prayed that if the burden of their sin is too heavy 'remove me from your book' and let me be punished with them." Phelps would still be a bigot, but I could still accept him as a fellow citizen. Whatever else he might believe, I would know that he was on my side as an American.

Can Pacifists Be Citizens? A Jewish Solution

As previously noted, I view government as a devil's bargain. I accept the existence of an institution with the power to engage in violence and whose main purpose is violence. This applies to fighting wars and even the punishing of criminals. Government authority means nothing if, at the end of the day, they are unable to physically harm those who defy them. The main reason why I endorse government violence is that I see it as the alternative to private vendettas. I am not about to accept a world in which "every man does what is right in his own eyes." I can fathom turning the other cheek precisely because there is a police officer out there who can strike the person for me. Thus my purpose is not to engage in violence, but to do whatever I can to limit it. Openly acknowledging the necessity of violence puts me in much the same situation as Machiavelli, begging to be misunderstood as endorsing tyranny. I would argue that, on the contrary, my willingness to acknowledge the Machiavellian reality of government allows me to be a true defender of liberty and limit government violence. I recognize what kind of deal I am making and have clear boundaries. This is different from the person who pretends to deal with government and not make compromises with liberty. Such a person has no protection when faced with the real moral dilemmas of a tyrannical government.

 It is the common practice in times of war to grant draft exemptions to pacifists and "consciousness objectors." I fail to see the reason for this and fully agree with Richard Dawkins on the absurdity of giving people special protection simply because of "religion." By agreeing to be a citizen you accept the legitimacy of the government to fight wars and agree to help it do so. Since pacifists cannot agree to this, they cannot be citizens in any meaningful way. This is not a violation of anyone's religious liberties. Religious liberty only exists when you pay the door fee of becoming part of the system by accepting its validity. If you cannot pay that price then you are not part of the conversation.

The citizenship question really goes far beyond military service. If pacifists were consistent in their beliefs they would become "conscientious objectors" from jury duty and voting. By serving on a jury the government is asking you to accept their legal authority to punish people even with physical force. The government is also asking you to honestly declare whether you think a person is guilty beyond a reasonable doubt. Maximum security prisons are directly connected to the threat of physical violence; prisoners who do not comply face being beaten and if they try to escape they may be killed. How can a pacifist ever convict someone of a violent crime? I would add that since we can assume that any violent criminal was brought in by police licensed to engage in physical violence, such violence was either used or implicitly threatened. Thus a pacifist would have to automatically throw out any case rather than be an active participant in this system of government violence. If you let a person go who you believe beyond a reasonable doubt is guilty because you object to prison conditions and police tactics you are not keeping your end of the bargain you struck with the government.

When you vote for your congressional representative, you are voting for someone licensed by the Constitution to vote to declare war. The President is the Constitutional Commander in Chief with the power to lead the United States military in battle. Participating in an election means declaring the moral validity of the Congress to declare war and the President to wage it as put down in the Constitution. Since the Constitution is a war validating document, no pacifist can ever accept the legitimacy of the Constitution without making a hypocrite of himself.


Rather than forcefully expelling or killing pacifists, I would suggest a solution from Jewish history. Up until the end of the eighteenth century, Jews even when tolerated and allowed to live in peace, were not accepted as citizens. In each city Jews lived under the authority of their own kehilla system, operating as its own semi-autonomous government. It was the kehilla that negotiated with the Christian authorities for Jews to be allowed to live in the city and practice their own religion. These negations usually involved monetary payment, call it taxes or bribery. "In the pre-modern world, there was no such thing as rights. There were privileges that you paid for." Jews were also subject to blasphemy laws which barred them from making statement offensive to Christianity. This was not due to "intolerance," simply a matter of Jews, by definition, not being able to accept the legitimacy of a Christian State, whose claim to authority rested on Christian theological claims.

Pacifists should be allowed to live in peace within this country; not because of any right to religious liberty (they lost that right the moment they rejected the government, which gives allows for religious liberty to exist), but because they are non-threatening producers, whose presence benefits society at large. Pacifists should not actually be citizens. They should not have the right to vote, they should not serve on juries but should pay an extra head tax to cover their lack of military service. They would also have no free speech protection and be barred from making any statements deemed "subversive." Since they are outside the political system they have no reason to involve themselves in it or even speak about it. Every American would have the right to put themselves down as a pacifist and pay the consequences. (Children of pacifists should have the option of going to court and rejecting the beliefs of their parents and immediately take the test and oath of citizenship without having to wait five years.) Those who do not and instead decide to enjoy the full benefits of citizenship, lose all claim to ever being "conscientious objectors."

My Constitutional Right to Run for the Senate (Despite the Fact that I am Only 27 Years Old)

(Hat tip to Religion in America.)

 Recently retired Justice David Souter recently spoke at Harvard and attacked the originalist (or fair reading as he calls it) interpretation of the Constitution, which assumes that the Constitution has hard and fast meaning and it is simply the job of judges to apply these "simple" truths. Souter believes in a "living" Constitution, that the Constitution is open to reinterpretation by judges in light of current society. Souter's main argument against fair readers is that the Constitution contradicts itself so one must therefore make a value judgment and choose one part over the other. Now there are certain things that Souter believes that a fair reading can be used for.


If one of today's 21-year-old college graduates claimed a place on the ballot for one of the United States Senate seats open this year, the claim could be disposed of simply by showing the person's age, quoting the constitutional provision that a senator must be at least 30 years old, and interpreting that requirement to forbid access to the ballot to someone who could not qualify to serve if elected.  No one would be apt to respond that lawmaking was going on, or object that the age requirement did not say anything about ballot access.


I find this statement to be naïve beyond credulity. This clause in the Constitution does not require any serious creativity to get around. I have the Fourteenth Amendment:


No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


The Constitution contradicts itself. On the one hand the Constitution itself, denies me as a twenty-seven year old equal protection under law by not allowing me to run for the Senate (as well as the office of Vice-President or President), but the Fourteenth Amendment insists on equal access. If the Fourteenth Amendment means a Constitutional right for gay marriage then it certainly must also eliminate such ageist discrimination as putting age minimum's on running for public office. Age minimums serve no other purpose but to deny that I am equal to any thirty year old. From here the matter is simple. The Fourteenth Amendment repeals all age minimums, even those explicitly placed into the Constitution.  

The only way the Constitution has any meaning is if it is read from an originalist perspective. Judges act in place of those who wrote the Constitution and its amendments, much the same way that trustees of an estate follow the desires of the deceased as expressed in a will. The Fourteenth Amendment does not eliminate age minimums for the same reason that it does not mean that gay marriage is a Constitutional right; the Radical Republicans of 1868 gave no indication that this was their intention and one would be hard pressed to say with a straight face that they would have supported such an interpretation if asked. Anything else and the Constitution simply means whatever you want it to mean and thus ceases to exist.

Stanley Fish, Arizona and the Depoliticized Classroom

Dr. Stanley Fish has an interesting post on one particular element of the new Arizona anti-illegal immigration efforts, Arizona the Gift that Keeps on Giving. Arizona now wishes to ban ethnic studies classes in public schools, which are designed to promote "race consciousness." One of the things that I admire about Fish is his willingness to stand up for a depoliticized academia and he is on form in this piece as he attacks the pedagogical theories of Paulo Freire and the Mexican American Studies Department of the Tucson Unified School District for using them as the basis for their Social Justice Education Project. Fish, though, turns around and attacks the new law for proposing "that public school pupils should be taught to treat and value each other as individuals and not be taught to resent or hate other races or other classes of people."

As readers of this blog know, I am an opponent of any attempt from either the left or the right to politicize education. When I teach history, I teach the historical method of thinking and use it to consider the who, what, when, where, and why of history; I do not teach moral or political values. I see this as part of the bargain we strike together to allow us to have the sort of free society in which one can receive the sort of meaningful education that might down the road turn someone to the right or left. My objection to someone like Freire has little to do with what I might think about the existence of hegemonic cultures and thought structures and their malicious influence. My problem is that Freire not only attacks proponents of these hegemonic cultures, who we have to assume are real people and not just theoretical constructs but delegitimizes them as well. If these proponents of hegemonic cultures are as dark and as dangerous as Freire claims, then there can be no meaningful discourse with them. Any time you take discussion off the table you have put guns on the table. In essence, the pedagogy of Freire is a call for the disenfranchisement, political slavery, and even murder of ideological opponents like me, all while being hypocritical enough to deny this fact and having the gall to ask people like me to financially support my own destruction.

While I support widening the circle of people whom, while I may disagree with them I still view as legitimate, as much as possible, there are going to be people who fall outside this circle, who believe things that not only go against the free society but make it impossible for them to take part in it and still have a free society in any meaningful sense. This leads to a situation where the free society must insist, as the price of admission, on the acceptance of certain beliefs. This is no different than the situation of rational skepticism, which allows you to question everything else, but the premises underlying itself. This is the price of belief you pay in order to be a skeptic. As a Jew, I am not capable of ever debating whether or not I am a member of an Elders of Zion organization. I ask that you accept on faith that I am a good American citizen and give me the benefit of the doubt and in return I agree to give you the benefit of the doubt. Since American society has decided to accept people like me into its bosom, it has had no choice but to expel white supremacists from its midst and banish them to places like rural Idaho. This would even apply to the government. I could not be an equal part of an American politics in which white supremacists are also allowed to take part in a meaningful way. As such, having me in the system means that we are forced to use all means, Constitutional and extra-Constitutional to make sure white supremacists are not. Nothing personal against white supremacists, but our views are so mutually exclusive that we have no choice, in essence, but to kill each other.

Because I recognize this sort of bargain we make with each other. I have no objection for the government to come in and openly insist on certain ground rules in order to take part in the system. Particularly, everyone has to accept the authority of the government, obey the law, and respect the legitimacy, as opposed to liking or agreeing with them, of all other signers of this pact. In a multi-racial United States, one has to be willing to accept, at least ex post facto, that people of all races can be legitimate American citizens. This is all of course superfluous since I oppose government-funded education in the first place. I would, though, support similar language in a bill targeting who can run for public office. Yes, it would be an ideological test, but one, in essence no different than swearing to uphold the Constitution.

The Place of the Personal in Law

With the recent Supreme Court nomination of Elena Kagan (See David Brooks for his very classy takedown of her unwillingness to go on the record with any controversial opinions.) we can expect another round of public debate over whether justices should rule simply according to the law or with the desire to see social justice on the ground. President Obama assumedly has nominated someone who shares his vision of judges having the proper "heart" and liberal values to rule in accordance with a "living Constitution." Needless to say I view such sentiments as a betrayal of law. Law can and must only deal with universal principles for it to mean anything. The submission to abstract laws is justice; the submission to the personal opinions of others is tyranny and sic semper tyrannis. This is not because I see the legal system simply as a set of rigid principles; on the contrary I see a lot of room for personal judgment, just not at the level of the Supreme Court. I would propose a sliding scale to law; the higher you are and the more power you have to make laws the more you are restricted in your ability to apply personal judgment. On the flip side those at the bottom of the legal system, who are not in a position to make laws, have full power to apply their judgment as to how the law is carried out.

The policeman on the street does not make laws. It is simply his job to enforce them and cite or arrest those who violate the law. As a libertarian, I personally am opposed to all drug laws. Rational adults should be allowed to put any substance they wish into their bodies. If I were to serve as a policeman I would have no control over the fact that marijuana is illegal to various extents throughout the country. That being said, I am not obligated to arrest every person I catch in possession of the substance. A neighborhood with me on patrol would have fewer drug arrests and more lectures to kids about not using drugs. The law recognizes the existence of my personal judgment and expects me not to willfully destroy the lives of teenagers for making just one mistake and taking a puff of a joint. I do not have to take down the local drug dealer knowing full well that he will be replaced by someone who sells to kids and laces his material with potentially poisonous substances.

When we move up the legal system to the DA and the local judge, we are in a similar position. These people do not make laws nor do they have control over who is arrested. They are left, though, to consider as to what extent they will throw the book at those in the dock. What kind of plea bargains and sentences will they offer? They may have the power to put minors behind bars for possession, but that does not mean that they should. At the top of this part of the system, governors and the President may not make laws either, but they have the power to grant pardons. If I were the Governor or the President I would declare an open house on all those arrested on drug charges and offer pardons.

As a member of Congress or a senator I would have the power to make laws. It would be my job, as entrusted to me by my constituents, to enact laws according to my personal opinion as I think best for the country. I would do my utmost to end the war on drugs and legalize them. That being said, my very office would bar me from having any control over how any of these laws are put into practice. I would have to make the best laws I know and trust others to use their best personal judgment in carrying them out.

The top of the legal system is the Supreme Court. They have the unchecked power to declare laws to be unconstitutional and there is no higher authority to appeal to. This greatest of all powers must place the greatest of all limitations. Not only do justices have no control over how laws are carried out, they should not even have the right to use their personal judgments. Their very power stems from the fact that they are perceived as ciphers for the principles contained in the Constitution. If were to go on the Supreme Court, I would lose the ability to fight against the drug war. There is nothing in the Constitution that says that the government cannot do foolish things like ban adults from engaging in actions that do not cause direct physical harm to others. Actually, since liberal justices were kind enough to invent a right to privacy, I would be free to apply this law across the board, including drugs, but that is a side issue.

Crimes of De-Citizenship

As I am sure you are all aware, a Pakistani-born American, Faisal Shahzad, has been arrested for his part in the Time Square bomb plot. An intriguing debate has arisen within conservative circles over the fact that Shahzad was read his Miranda rights. Glenn Beck, of all people, came out in defense of making sure that this Islamic terrorist received his full constitutional rights as an American citizen. Far be it from me to stand to the right of Glenn Beck on an issue, but please bear with me. First off there is my general objection to Miranda rights in that they are the creation of an activist Supreme Court and should be overturned. Nowhere in the Constitution does it say or imply that the authorities need to inform people of their rights. It is the responsibility of each citizen to have a basic understanding of their own rights. (If Congress wishes to make such a law as to insist that police inform suspects of their rights I would be all for it.) Moving beyond that, I reject the assumption that Shahzad is an American citizen with constitutionally protected legal rights. I would argue that the very nature of his crime strips him of his citizenship and the legal rights that go with it.

I take it as a given that non-uniformed combatants, such as spies, saboteurs, and terrorists, do not have legal rights. Because of this, I reject all legal objections to torture. The United States not only has the right to put Al Qaida combatants in Guantanamo without trial it would also have the right to chop their fingers off one by one, gouge their eyes out, hang them by piano wire, and put it all on Youtube. These combatants would be in the Dred Scott situation, without the legal standing to sue the American government in the first place. Not that I think torture is, for the most part, a good idea or that I would wish for torture to be used. The maintenance of limits to war and the bare shred of human rights relies on the willingness to draw a distinction between civilian and military and to respect a certain code of behavior even in the treatment of the enemy. If there are no consequences to violating the laws of war then there is no reason to keep them. Thus not only can one disregard the human rights of those who do not respect them, one must disregard them. There is no moral difference between those who would piously offer rights to those who do not respect them and those who do not believe in them in the first place. Rights can only apply to those who believe in them and respect them in return.

Citizens obviously have rights that protect them. These rights apply even to criminals, from jay-walkers to sadistic murderers. If someone rapes and murders a child, he is still an American citizen and has rights. He cannot be tortured and has the right to a fair trial in front of a jury of his peers. Even if we apply the death penalty, up until the moment the State executes him, he is an American citizen and has the right to a humane death. The reason for this is that throughout this entire process this person has not acted to reject the authority of the State. Whatever sick desires he felt he must give into, he never challenged the right of the State to judge him. Shahzad did not just help park a vehicle full of explosives with the intention that it explode and cause major casualties for which we might wish to convict him of manslaughter, he plotted with a foreign entity to work to undermine this government. By making war against this government he committed treason and rejected the legitimacy of the government. Thus he surrendered his citizenship and all the privileges that come with it. The military has the practice of stripping soldiers of their rank when they commit certain crimes; I see no reason why civilians cannot be similarly stripped of citizenship. It turns out that that Senator Joseph Lieberman is actually sponsoring a bill to strip anyone involved with foreign terrorists of their citizenship. I would of course go so far as to say that as a traitor, a non-citizen, and an out-of-uniform combatant Shahzad would have no more legal rights and could be tortured and executed at will without a formal trial.

How would this work in practice? Obviously, there needs to be some sort of check in place to stop the government from simply accusing citizens of being terrorists and ignoring the Constitution. My suggestion would be the following. Once the charge of terrorism went out against our Time Square bomber it immediately became a military operation. Once the authorities had their man they should only have had to offer the opportunity for civil rights groups to come to Shahzad's defense in the equivalent of a preliminary hearing. In the civilian world if a case gets past the preliminary hearing to a full trial the assumption is that the person is guilty. Because he is a citizen, though, he has the right to be presumed innocent until guilt is proven beyond all reasonable doubt. Such rights can be dispensed with for people outside the claims of citizenship of this or any other established state.

Understand this. If I believe that you, my neighbor, have rejected the contract of citizenship and are plotting against me, I can only be expected to reject my contract of citizenship as it applies to you and I will be trying to kill you as the only means left to be able to live in peace. This does not have to be beyond a reasonable doubt; I only have to think it is likely and stop trusting you for this contract to break down.

Sarah Palin Is an Evita Peron Lipstick Fascist, Republicans Hate America and How Dare They Call us Names

Frank Schaeffer is a religious Christian and a member of the Greek Orthodox Church. As he often likes to point out, he is the son of the late Francis Schaeffer and helped create the modern religious right during the 1970s and early 1980s, before turning on the movement. He is a strong supporter of President Barack Obama and a vocal critic of Republicans, the religious right, Tea Baggers and Libertarians. He calls Sarah Palin "our home grown very own Evita Perón" and "the new face of Lipstick Fascism." The Republican Party is castigated for being "the enemy of America" and "an insurrection against law, living and love." According to Schaeffer, Jesus hates American Christians for their "war against the poor who have no health care" and for how they have treated "the downtrodden gays scorned and mocked by society." I am not here to criticize Frank Schaeffer's politics. I have no great love for the Republican Party, the religious right, or for Sarah Palin. For my own part, I fail to see how Libertarians fit into all of this and wish he would leave us alone. I see Sarah Palin as an inexperienced and naïve small-time politician, who ended up, by circumstance, way over her head as governor of Alaska and then really over her head as a vice-presidential candidate. I certainly have no desire to see her in the White House in the near future.


I do believe that it is important to be open and honest about our political beliefs and that means being willing to pay the full consequences for what one believes. Unlike the parlor trick that politicians play when they talk about being for things (whether it is motherhood, apple pie, family values, or a strong America), intellectual honesty requires the recognition that everything comes at the expense of something else. This is most obvious in terms of finances (every dollar spent on health care is a dollar not being spent fighting the war in Iraq), but this also goes for ideology. Schaeffer expresses his horror that Christian opponents of Obama would wear t-shirts sporting Psalms 109:8: "May his days be few; may another take his office" as a "prayer" for Obama. The next verse is "May his children be fatherless and his wife a widow." Schaeffer is certainly justified when he wonders whether this is code for a call to assassination. My only request from Schaeffer is that he willingly turn the sniper scope upon his own words.


What would it mean for us to take his very words about Palin and Republicans seriously? Forgive my Asperger syndrome, which causes me to read things very literally and matter of factly. Take the example of Sarah Palin; let us assume that Schaeffer is right and that she is a fascist and the tip of the iceberg of a vast conspiracy being hatched by Rupert Murdoch and Franklin Graham to take over the United States, subvert the democratic process, and install a fascist theocracy. (In essence, of having the bad manners of plotting to take over the world and not allowing Jews like me to be in on it.) If this is the case then clearly we have an emergency situation where the Constitution is under threat and extra-constitutional measures become acceptable for its long-term salvation. I would give the examples of Phineas in the book of Numbers, of Mathias in Maccabees and Jack Bauer in the television show 24. (We can debate the relative sacredness of each of these examples.) Frank Schaeffer! I am calling you because I have Sarah Palin in the crosshairs of my sniper rifle and I wish to know whether I should pull the trigger or not. Can you give me a principled reason not to take the shot? By principled, I mean to exclude all arguments from pragmatism. It means nothing if you tell me not to do it simply because I might get caught, this might embarrass the movement, or that Palin can be defeated by less drastic measures. These arguments would rightfully be dismissed as dodging the real issue at hand, the morality and even the necessity of assassinating Sarah Palin in order to save American democracy. Either Frank Schaeffer is calling for the elimination of Sarah Palin or he is just mouthing off and defaming a politician above and beyond what she actually deserves.

This goes further. What can all those on the right, acting in good faith, assume about Frank Schaeffer and his president? Since Schaeffer has given a hit order against their leadership while lacking the intellectual honesty to openly admit to what he has done, it would seem an act of necessary self-defense to come after Schaeffer, his people, and his president. Both sides can, in the hope of defending our constitutional process, abandon peaceful democratic elections and turn to civil war; just as long as we keep things civilized.

Just as Schaeffer is willing to implicitly approve of violence in the name of condemning violence from the other side, he brings in his own form of religious totalitarianism in the name of defeating the Christian right. As a libertarian, I believe in the importance of charity, to make sure that everyone has their basic needs, such as food and healthcare, taken care of. I believe that these things are handled best through private charity and not the government. Does this make me a bad "Christian?" (Besides for the fact that I am Jewish) Would someone with my political views be welcome into Frank Schaeffer's church? How is his willingness to turn health care into a religious issue not simply another type bringing religion into politics?

When I first found Schaeffer he seemed to me to be an interesting voice that could move beyond the traditional political lines. Since then he has clearly fallen to the temptations of the internet and the extremist rhetoric it encourages. The democratic process requires moderation and a willingness to give those in the opposition the benefit of the doubt. You cannot view the opposition as something satanic and still claim to work with them in a democratic system. Either you are lying or you lack the moral spine necessary to defend democracy in its time of crisis.

Historical Progress and Reasonable Men

Miss S. raises some issues with one of my arguments from my presentation on Orson Scott Card's Speaker for the Dead. I argue that history should be taught with a decidedly unpolemical stance, even when dealing with societies and institutions that most people today would find morally abhorrent such as slavery or open patriarchy. History should be presented from the perspective of those who lived then. We need to ask ourselves what was going through their heads when they did these things and what they would say in their own defense. The moment one takes a judgmental stance and starts to cluck about people in the past not being open minded or tolerant than one is no longer doing history. Miss S. asks:

 Reading your post I can't help but feel as if your method of justification for the behaviors of people from the past fails to own up to the great potential that men possess. I'll explain why in a bit, but this is surprising because you seem to view those people and those societies in/from the past in high regard; higher regard than I (a non-historian) does. By our modern definition (and maybe even a historical one) "great" men were not those who compromised too often. If anything they were incredibly stubborn and rarely achieved any accolades for their behavior while they were alive.

You present slavery as an example of a social situation where bad moral actions (even for that society, at that time) could be reasoned away by the short-sightedness of the society and their reluctance to compromise their economic foundation. Perhaps I am interpreting this entirely wrong, but why should it be encouraged for the students to empathize with such a mindset and not be critical of it? There were plenty of other individuals from that same time period who were quite critical of the institution of slavery (I don't think anyone is debating that). What you have is a situation where sociology mixes with history and you have an example as to how gross acts of immorality can exist and the society at large puts up with it. Like how the Romans watched people being mauled to death by beasts in the Coliseum for sport. Like how our society today retains very little modesty in regards to sex.

In politics, yes you routinely make "deals with the Devil"; but also, if you notice, when you look throughout history, some of the great societal changes came about because either leaders or a group did not compromise -- and took the "all but nothing" stance. Believe it or not, this is not an outright criticism of your efforts. In fact if I were your student, I would find the exercise to be an interesting one. I would just wonder how you could explain away the impetus of ideas that were uncompromising and self-serving; yet impacted history greatly. Your approach would justify the actions of American slaveholders; but not that of the American (Union) government.

George Bernard Shaw once said: "The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore, all progress depends on the unreasonable man." I think Miss S. would agree with Shaw as would most people. I cannot disprove this claim, but would point out that it is based on a flawed human perception of history. One of the common traps that people fall into, when dealing with history, is narrative thinking. When studying historical events we look for stories to tell, ones that have all the qualities of the fictional stories we manufacture out of our own imaginations simply for entertainment. A good story that will hold onto the attention of listeners and readers is going to have a unified story, with a clear beginning, middle, and end, a limited number of characters, clear heroes and villains, something important at stake, like saving the world, with a climax in which everything will stand or fall based on one person making a single decision in just one moment. Since we like these sorts of stories, we will purposely try to construct historical narratives along these lines. The problem with narrative thinking is that there is no particular reason to assume that events in the physical world really do operate like this. So we fall into the trap of a self-selecting bias; we see what we want to see even if it is a product of nothing more than our imaginations.

Does history advance because of a few brave heroes who do things that others think are impossible, defy the odds, and save the world? We wish to think this so we construct heroic narratives where society progresses through conflicts in which the good guys win in the end. A more accurate view of history would be that society evolves as part of a continuous process. The mechanism for this change is not clear cut conflict, but the compromises that different factions reach as part of their ongoing dialogue. Why did the Civil Rights movement succeed? Because blacks defeated their enemies with their marching or because mainstream America became convinced that giving blacks equal rights strengthened Middle America by bringing in moderate peaceful blacks and expelling segregationist whites? Middle America made a deal with black America and we are still working out the details. The same thing goes for the gay rights movement. Their success, ironically enough, has been due to their ability to adapt themselves to mainstream culture by seeking mainstream marriage than trying to actually change mainstream culture. For all the talk about extra-marital sex among American youth, the standard is still mainstream marriage. Groups outside of the mainstream make their deals with mainstream America and both sides win in the end.

It is very easy to admire someone like John Brown who made a martyr of himself trying to free slaves. But what did John Brown accomplish; he got a lot of people killed in Kansas and most famously at Harper's Ferry. In the end, he freed no one. On the other hand take Abraham Lincoln, who is often drafted in the cause of American hero. Unlike the Lincoln of popular myth, though, the real Lincoln was very much the political pragmatist. In 1860 he did not run on a platform of getting rid of slavery, just to not allow slavery into the territories. How many slaves did the Great Emancipator free? Zero. The Emancipation Proclamation only freed slaves in territories not currently controlled by the Union. That being said it set the stage for the thirteenth and fourteenth amendments by binding the American government to the ending of slavery. It was not the moderates who were being short-sighted. In a sense, it was people like John Brown who were the real short-sighted ones.

We wish to find that hero who took on the forces of darkness and forever changed the world for the better. We want it so badly that we will write him into history, running over any inconvenient facts in the process. When writing fantasy we could leave our Saurons and our Lord Voldemorts as being motivated just by evil. I do not understand evil as a motive. The closest I can come is the pursuit of good ends through means that are so evil that they cancel out the good at the end. For example, there is trying to save the world by becoming a dark lord tyrant and nuking most of it. In fantasy, one has the luxury of not having to seriously consider the "villains" and can just tell the story from the perspective of the "good guys." As a historian, though, I also have to be willing to consider "Sauron" and "Voldemort." Since it is precisely such people who represent the greatest difficulty, understanding them becomes the task that dominates my work as a historian.

An Explanation of My Beliefs in Regards to the Constitution

In a comment to my last post, I was asked some questions in regards to constructionist and activist judges. I would like to take the opportunity to respond.

“What is the difference between a "constructionist" and "activist" judge? Who are some examples of each on the Supreme and Circuit courts?”

A constructionist judge believes that his job, as a judge, is to explain the Constitution. (Either in its literal meaning or based on how it was originally understood by those who wrote the relevant clauses.) An activist judge believes that the Constitution is a “living” document that must be interpreted in light of present morality or even based on International law. The activist view, in essence, is a license for judges to rule however they want; they become legislators more powerful even than Congress.

I think Scalia is a fine constructionist judge, committed to ruling based on constructionist principles. This does not mean that I agree with every decision he has ever made. I am sure if I were on the court I might make many different decisions, but it is only reasonable that people of good faith will have honest differences. Stephen Breyer is an activist judge; he has gone on the record supporting the use of foreign legal precedent in court rulings.

Barack Obama, in Audacity of Hope, talks about this issue and expresses his support for Breyer’s approach. I am sure Obama means well, but I see this approach as a sitting threat to a free society.

“Also, what are some cases which serve as examples of "reinterpreting" the Constitution to "create" a "civil right?”

The classic examples of activist rulings are Griswold vs. Connecticut, which established a constitutional right to use birth control based on a mythical right to privacy, which the court made up just for this occasion, and Roe vs. Wade, which established a right to abortion. Not that I want it to be illegal to use birth control or to have an abortion. If someone were to propose amending the Constitution in order to create a right to privacy I would support it. That being said, none of these things are in the Constitution and the people who wrote the relevant amendments did not intend to cover such rights. The whole concept of a right to privacy is hypocrisy anyway. Why does the right to privacy not allow me to grow marijuana in my own basement and smoke it there? Why can’t I make a private decision with my own doctor to sell my kidneys?

More recently the Supreme Courts of Massachusetts and California have ruled that homosexuals have a “civil right” to get married. Personally, I don’t have a problem with gay marriage. It seems perfectly reasonable for the government to revise its marriage laws to cover the changed circumstances in our society. But these courts, by inventing this new civil right, have declared that all those who do not actively support gay marriage are bigots, carriers of a type of belief that the government is allowed to actively fight against even with the believer's own money. Thus they have trampled the rights not of homosexuals but of all opponents of homosexuality.

“How extensive is this problem of judicial interpretation? Is it serious enough to be a deterministic factor in weighing your vote for the Presidency?”

At the end of the day, the practical differences between the parties are not that great. Both parties are pro-capitalism. Neither party is about to try to take down Wall St. On the other hand, both parties support some form of government-funded health care and government schools. No matter who is in power, billions will be spent on social welfare programs. For all the conservative talk about taxes, all of these things require money and people are going to get taxed to pay for these things. (There may even be a tax hike.) This may upset many radical Liberals but the United States military is going to consume a large chunk of government spending. The day when schools will have all the funds they need and the air force has to have a bake sale in order to buy bombs is not going to come anytime soon. I am not saying that any of this is good or bad, but the way our government is set up, with its two-party system politics, one is forced to keep pretty much to the center. The biggest difference between the parties is what sort of judges they will put in.

We are in the middle of a continued assault by radical Liberals/secularists to enforce their values on other people. This assault has been spearheaded by activist judges. For all the talk about Christian Fundamentalists trying to take over the country and threaten our liberties, for me the real threat comes from secularists. Their agenda goes way beyond creating a secular atmosphere and applying psychological pressure on people to conform to their views. They wish to take direct action that will physically force people to surrender their own personal beliefs.

My Optimistic Scenario for the Next Four Years

So the election has come and gone and as expected John McCain lost and Barack Obama won. I supported McCain and continue to have serious reservations about Obama, both in terms of the American economy and in terms of Israel. The Democrats now control the presidency and have greatly strengthened their hold over Congress and the Senate. The radical left is triumphant and no doubt they will push their advantage for all it is worth. That being said I am willing to be cautiously optimistic. For one thing, despite my disagreements with Obama, I respect the man; he has always struck me as a highly intelligent individual who, despite his personal liberalism, honestly desires to reach out and cut across the traditional ideological lines. Here is my optimistic scenario for the coming four years.

I do not believe that Obama is going to turn tail and run neither in the War in Iraq, specifically, or in the War on Terror, in general. Obama has nothing to lose and everything to gain from pursuing an aggressive foreign policy in the Middle East. If he fails it will be blamed on the Bush administration and if he succeeds he will be able to take the credit for himself. I suspect that the Left in this country and the European Union will be far more willing to support an aggressive foreign policy now that it is no longer the Bush administration taking the lead. Obama may, in fact, be better suited than George W. Bush to pursue an aggressive foreign policy because he will not be caught up in the us versus them in the liberal establishment trap; Obama will have no need because the establishment will be on his side. Just as it took Richard Nixon to go to China so to it might very well require an Obama to fight the War on Terror.

Personally, my number one reason for supporting Republicans is in order to make sure that strict constructionist judges are appointed and to stop Liberals from appointing activist judges who will reinterpret the Constitution to give Liberals everything they fail to get through the democratic process and call it a "civil right." The two best things President Bush did in his eight years in office was to appoint John Roberts and Samuel Alito to the Supreme Court. Obama defiantly will try to appoint activist judges. I do not think he will be able to too much damage. The only justice who is likely to step down over the next four years is John Paul Stevens, one of the courts most liberal members. We can assume that, one way or another, we will still have our four conservative judges (Scalia, Thomas, Roberts, Alito) and one judge (Kennedy) who usually can be relied upon.

Hopefully, Obama can be relied upon to do something stupid that will not do too much damage but will help bring about a Republican comeback in 2010 and even allow them to take back the White House in 2012. I am thinking along the lines of him going back on his campaign pledge not to raise the taxes on anyone making less than $250,000 a year. I am really keen for him to fulfill his campaign promises to sign the Freedom of Choice Act, which will enshrine Roe vs. Wade into Federal law, and support equal pay laws for women. These things should be enough to alienate the American center over the next few years, particularly as their anger toward Republicans cools.

Meanwhile, the Republicans can take the opportunity of this well-deserved defeat to take stock of their situation. This defeat may serve as a badly needed intervention to save them from themselves and maybe get them back to things like small government. I think there is little chance that the Republicans could ever have changed on their own without some disaster of Obama proportions. Of all the disasters that may have struck the Republican Party, I could imagine worse than an Obama presidency.

Hopefully over the next few years we can put together a Republican Party that we can be proud of.