Speaking of legislation without representation: here go the Prophets again. Now the death penalty for juviniles is unconstitutional because it violates the Eight Amendment to the Constitution (which is applicable to the States by virtue of the 14th Amend., you will recall). Here are a few gems from the prophecy in Roper v. Simmons (i.e., Justice Kennedy, for the majority):

"...30 States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach."

So the state tally, is 30 states opposed to the juvinile death penalty, 20 states in favor. Wow. Interesting statistic, if true (Scalia answers this in his dissent). This is irrelevant. Constitutionality ought not be decided by the laws of the states, especially when you consider that those very laws can be struck down by the Prophets, at their whim.

"A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18"

Irrelevant. The touchstone of constutionality is the constitution, at least according to Justice Frankfurter--once upon a time. If the touchstone of constitutionality is the laws of a majority of the states, then why does the court now assert that a future change in this consensus is unconstitutional? For that is what the court does: Even if we stipulate that the court is correct, that a consensus does exist, the court now says that it would be unconstitutional for these same states to change their minds, to change this putative consensus. So they were free to form this putative consensus; but now they must pass a constitutional amendment in order to change their minds. Clearly, the Prophets think we're stupid. (Besides, are we to believe that if a majority of the states provided for juvinile death penalty that the Prophets would be upholding the constitutionality of such laws? If so, then what of the constitution? If a majority of the states decided, figuratively speaking, to jump off a cliff, would the rest be constitutionally required to follow suit? Apparently so!!!)

"Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, "[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions".... The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.... The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means "their irresponsible conduct is not as morally reprehensible as that of an adult."

Here, according to the court itself, is the behavior that that these immature, underdeveloped, vulnerable, and not completely well formed teenagers did: "At the age of 17, when he was still a junior in high school, Christopher Simmons, the respondent here, committed murder. About nine months later, after he had turned 18, he was tried and sentenced to death. There is little doubt that Simmons was the instigator of the crime. Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan, discussing it for the most part with two friends, Charles Benjamin and John Tessmer, then aged 15 and 16 respectively. Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could "get away with it" because they were minors.

The three met at about 2 a.m. on the night of the murder, but Tessmer left before the other two set out. (The State later charged Tessmer with conspiracy, but dropped the charge in exchange for his testimony against Simmons.) Simmons and Benjamin entered the home of the victim, Shirley Crook, after reaching through an open window and unlocking the back door. Simmons turned on a hallway light. Awakened, Mrs. Crook called out, "Who's there?" In response Simmons entered Mrs. Crook's bedroom, where he recognized her from a previous car accident involving them both. Simmons later admitted this confirmed his resolve to murder her.

Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below."

"The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character"

No one is punished for having "irretrievably depraved character". One is punished for committing a crime.

"Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty."

Here we go again: If the rest of the world decided to jump off a cliff, must the United States follow along? If the actions of other nations are instructive for us, then whose actions were instructive for all those other nations whose actions are instructive for us?

"Respondent and his amici have submitted, and petitioner does not contest, that only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice. Brief for Respondent 49-50. In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty."

Forget the cliff. If the United States were alone as the only country in the world that fails to convert to Islam, would the United States be obligated to consider the rest of the world's embrace of Islam as somehow "instructive"? I haven't gone to law school, so of course I am an idiot, but when I took Logic in college this sort of reasoning, called ad populem was logically fallacious. That the rest of the world is foolish ought not to be our problem!

Justices Stevens and Ginsburg, concurring
"If the meaning of [the 8th Amendment] had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today."

Even so, setting the age is a matter for state legislatures to decide. Also: we are not talking here of 7-year-old; we are talking about a 17-year-old.

Justice O'Connor, dissenting:

"[B]ecause '[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man,' the Amendment 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society'" (quoting from Trop v. Dulles, 356 U. S. 86, 100-101 [1958] [plurality opinion]).

First it is not quite philosophically sound to talk about "the basic concept" being "the dignity of man." There are different conceptions of the dignity of man. It is not very clear which one of them is basic to the Eighth Amendment. This is the problem when lawyers try to do philosophy from the bench. My own conception of the so-called dignity of man would not exclude the execution of a seventeen year old; in fact, my conception would require it, in the name of the dignity of the victim. Second, "the evolving standards of decency" are best reflected in legislative acts, not judicial decisions. If the role of judges is to apply the law, or to say what the law is--and if the laws we live under are to be enacted by the people through their legislatures, or Congress--then these "evolving standards of decency" are best reflected in the laws passed by those legislatures, or Congress, and not the courts.

"Granting the premise 'that adolescents are generally less blameworthy than adults who commit similar crimes...it does not necessarily follow that all 15-year-olds are incapable of the moral culpability that would justify the imposition of capital punishment'"

All right, she's quoting her own (concurring) opinion in Thompson v. Oklahoma, 487 U. S. 815 (1988), but she makes a good, philosophically sound point, I think.

"[T]he Court adduces no evidence whatsoever in support of its sweeping conclusion...that it is only in "rare" cases, if ever, that 17-year-old murderers are sufficiently mature and act with sufficient depravity to warrant the death penalty. The fact that juveniles are generally less culpable for their misconduct than adults does not necessarily mean that a 17-year-old murderer cannot be sufficiently culpable to merit the death penalty. At most, the Court's argument suggests that the average 17-year-old murderer is not as culpable as the average adult murderer. But an especially depraved juvenile offender may nevertheless be just as culpable as many adult offenders considered bad enough to deserve the death penalty."

Good point! But this sort of logic is probably lost on the liberals on the court.

"[A] legislature may reasonably conclude that at least some 17-year-olds can act with sufficient moral culpability, and can be sufficiently deterred by the threat of execution, that capital punishment may be warranted in an appropriate case."

Could Christopher Simmons have acted with "sufficient moral culpability"? Here, you be the judge (so to speak):

"Christopher Simmons' murder of Shirley Crook was premeditated, wanton, and cruel in the extreme. Well before he committed this crime, Simmons declared that he wanted to kill someone. On several occasions, he discussed with two friends (ages 15 and 16) his plan to burglarize a house and to murder the victim by tying the victim up and pushing him from a bridge. Simmons said they could 'get away with it' because they were minors. In accord with this plan, Simmons and his 15-year-old accomplice broke into Mrs. Crook's home in the middle of the night, forced her from her bed, bound her, and drove her to a state park. There, they walked her to a railroad trestle spanning a river, 'hog-tied' her with electrical cable, bound her face completely with duct tape, and pushed her, still alive, from the trestle. She drowned in the water below. One can scarcely imagine the terror that this woman must have suffered throughout the ordeal leading to her death. Whatever can be said about the comparative moral culpability of 17-year-olds as a general matter, Simmons' actions unquestionably reflect 'a consciousness materially more "depraved" than that of' ... the average murderer' [quoting Godfrey v. Georgia, 446 U. S. 420, 433 (1980)]. And Simmons' prediction that he could murder with impunity because he had not yet turned 18--though inaccurate--suggests that he did take into account the perceived risk of punishment in deciding whether to commit the crime. Based on this evidence, the sentencing jury certainly had reasonable grounds for concluding that, despite Simmons' youth, he 'ha[d] sufficient psychological maturity' when he committed this horrific murder, and 'at the same time demonstrate[d] sufficient depravity, to merit a sentence of death'" (emphases mine).

"Chronological age is not an unfailing measure of psychological development, and common experience suggests that many 17-year-olds are more mature than the average young 'adult.' In short, the class of offenders exempted from capital punishment by today's decision is too broad and too diverse to warrant a categorical prohibition. Indeed, the age-based line drawn by the Court is indefensibly arbitrary--it quite likely will protect a number of offenders who are mature enough to deserve the death penalty and may well leave vulnerable many who are not."

Good point, philosophically speaking. The court here assumes that the members of one class (i.e., those who are younger than 18 years) are also members of another class (i.e., those who are not able to act with "sufficient moral culpability"). The court does not explain how membership in the first class is automatic membership in the second. All we need, to serve as a counter-example, is one person, under the age of 17, to demonstrate moral maturity. O'Connor is right to point out the fallacious logic which the majority embraces.

"I disagree with Justice Scalia's contention...that foreign and international law have no place in our Eighth Amendment jurisprudence. Over the course of nearly half a century, the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency."

It hardly stands to reason, even if true, that the fact that one has always, or even only frequently, done something means that one is required, or even justified in continuing the practice. This may especially be so, if there is argument being made that the practice is improper. O'Connor's silly position is: We've been doing this for t amount of time, therefore we should continue doing this. This is why I rarely appreciate her logic: it is much like the sun on a partly cloudy day, visible only for the briefest of moments.

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It would be nice to post some gems in the Scalia dissent(joined by The Chief Justice and Justice Thomas). But the whole thing, including many of the footnotes, is a gem.

PS

As the Supreme Council of Prophets hears oral argument on the Ten Commandments, one has to wonder how many nations either establish or "endorse" a religion. If a majority of nations do so, I bet we can expect the Prophets to ignore this. Oh, yes: this establishment, or "endorsement" of religion by other nations is one of the issues which Scalia points out in his Roper dissent.

On 23 February 2005, The Council of Supreme Prophets (a.k.a., The United States Supreme Court) in Johnson v. California et al, (posted here) decided that "[t]he California Department of Corrections' (CDC) unwritten policy of racially segregating prisoners in double cells for up to 60 days each time they enter a new correctional facility" is unconstitutional because it violates inmates' Fourteenth Amendment right to equal protection.

Now, California has--I'm sorry, had--an unwritten policy of racially segregating prisoners in double cells for up to 60 days each time they enter a new correctional facility. Has overtones of the segregation of the past century, doesn't it? But this policy was based on the rationale that it prevents violence caused by racial gangs. Golly gee. If you're having problems with race-centered gang violence in your prison system, and you want to assess a new prisoner with respect to his race-gang potential, maybe having him bunk with a member of his own race could be a good idea. You'd think. But no. As has happened so many times before, The Council of Supreme Prophets, translating for us poor distracted masses the will of the "living, breathing document", have decided that what the people who actually work in prisons think could be plain common sense does not pass what the Prophets, in their divinely given supreme wisdom, call "strict scrutiny" and does not serve a "compelling state interest."

(Now, of course, neither "strict scrutiny" nor "compelling state interest" appear in the constitution. But don't you worry your simple little head about that, mortal. The constitution, recall, is a living, breathing document, and use of these two terms has a great deal of case law behind it.)

What we are dealing with here is that tired notion that the Fourteenth Amendment wraps up the Bill of Rights in a beautiful little bundle of joy wrapped in swaddling cloths, and applies it against the states. This is what I think is the second leg upon which judicial tyranny stands (the other one being the notion of judicial review). This notion also has a great deal of case law behind it.

But early 14th Amendment jurisprudence did not see it this way:

Take the Slaughterhouse cases (1873). On March 8th, 1869, the State of Louisiana passed a statute called "An act to protect the health of the city of New Orleans, to locate the stock landings and slaughterhouses, and to incorporate the Crescent City Livestock Landing aud Slaughter-House Company." Like most things politicians do it sounds great. What the act did, in fact was to create a monopoly. The act (1) forbade "[t]he landing or slaughtering of animals whose flesh is intended for food within the city of New Orleans and other parishes and boundaries named and defined, or the keeping or establishing any slaughterhouses or abattoirs within those limits except by the corporation" created by the act ("suitable penalties" were also enacted for violations of this prohibition); (2) designated the incorporators, gave the name to the corporation, and conferred on it the usual corporate powers; (3) authorized the incorporated company "to establish and erect...one or more stockyards, stock landings, and slaughterhouses," including "one grand slaughterhouse of sufficient capacity for slaughtering five hundred animals per day;" (4) granted this single company "the sole and exclusive privilege of conducting and carrying on the livestock landing and slaughterhouse business" in the parishes of Orleans, Jefferson, and St. Bernard; (5) stipulated "that all such animals shall be landed at the stock landings and slaughtered at the slaughterhouses of the company, and nowhere else; (6) enacted penalties violations of this statute; (7) fixed prices "for the maximum charges of the company for each steamboat and for each animal landed;" (8) required "the closing up of all other stock landings and slaughterhouses...in the parishes of Orleans, Jefferson, and St. Bernard, and [made] it the duty of the company to permit any person to slaughter animals in their slaughterhouses under a heavy penalty for each refusal;" (9) fixed "a limit to the charges to be made by the company for each animal so slaughtered in their building, and...provide[d] for an inspection of all animals intended to be so slaughtered by an officer appointed by the governor of the State for that purpose."

Now, if you were in the animal slaughtering business, what would you think of this law? Why, you would accuse the governor and the Republican-dominated legislature of having ties to Big Slaughterhouse. Then you would argue that the law creates a monopoly and confers "odious and exclusive privileges" on a small number of persons at the expense of the larger community of New Orleans. And, as if that were not bad enough, you would argue, it deprives a large and law abiding class of citizens (i.e., all of the butchers in the city) of the right to exercise their trade. They are no longer free to engage in the business for which they have been trained and on which they rely to support their families. In short, you would argue that you, being a butcher, are being deprived of either life, liberty, or property without due process of law, as guaranteed to you by the 14th Amendment of the United States Constitution. And you would take the case all the way to the Supreme Court if necessary.

Well, that's what a whole herd of butchers did in the parishes of Orleans, Jefferson, and St. Bernard, in the State of Louisiana. But the Court did not buy their argument.

First, the Court held that the legislative act in question was consistent with the police powers of a state government:

It is not, and cannot be successfully controverted that it is both the right and the duty of the legislative body -- the supreme power of the State or municipality -- to prescribe and determine the localities where the business of slaughtering for a great city may be conducted. To do this effectively, it is indispensable that all persons who slaughter animals for food shall do it in those places and nowhere else.

The statute under consideration defines these localities and forbids slaughtering in any other. It does not, as has been asserted, prevent the butcher from doing his own slaughtering. On the contrary, the Slaughter-House Company is required, under a heavy penalty, to permit any person who wishes to do so to slaughter in their houses, and they are bound to make ample provision for the convenience of all the slaughtering for the entire city. The butcher then is still permitted to slaughter, to prepare, and to sell his own meats; but he is required to slaughter at a specified place, and to pay a reasonable compensation for the use of the accommodations furnished him at that place.

The wisdom of the monopoly granted by the legislature may be open to question, but it is difficult to see a justification for the assertion that the butchers are deprived of the right to labor in their occupation, or the people of their daily service in preparing food, or how this statute, with the duties and guards imposed upon the company, can be said to destroy the business of the butcher, or seriously interfere with its pursuit.

The power here exercised by the legislature of Louisiana is, in its essential nature, one which has been, up to the present period in the constitutional history of this country, always conceded to belong to the States, however it may now be questioned in some of its details.

Unwholesome trades, slaughterhouses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may all, says Chancellor Kent, be interdicted by law, in the midst of dense masses of population, on the general and rational principle that every person ought so to use his property as not to injure his neighbors, and that private interests must be made subservient to the general interests of the community. (Slaughterhouse cases, at p. 61-2.)

In short, the legislation was a traditionally legitimate exercise of state power.

Second, on the question of whether the "privileges and immunities" clause incorporated and applied against the states the entire Bill of Rights, the Court had a rather lengthy discussion, but I qoute what I believe to be the relevant part of that discussion:

Its [i.e., the "privileges and immunities" clause] sole purpose was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.

It would be the vainest show of learning to attempt to prove by citations of authority that, up to the adoption of the recent amendments, no claim or pretence was set up that those rights depended on the Federal government for their existence or protection beyond the very few express limitations which the Federal Constitution imposed upon the States -- such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But, with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

All this and more must follow if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever, in its discretion, any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them. (Slaughterhouse cases, at pp. 77-8, empases mine.)

After reading an opinion like that, one might be tempted to sigh and long for the good old days. But let's just remember that those good old days included states depriving black Americans their newly won civil rights. Still, the Court knew and acknowledged what the law was.

I believe that Judge Bork, in The Tempting of America, wrote that although this notion of the 14th Amendment incorporating the Bill of Rights is in error, we'll have to live with it because undoing it would require as much in the way of judical activism as its creation. Besides, I think some others have said, it has become a settled legal principle. But, if this settled legal principle is a means by which judicial tyranny is exercised, is this not just to say that we shall have to live with a certain amount of judicial tyranny? I think it is. (Besides, at one time Dred Scott, an opinion so long and tedious it would be not worth reading except for its historical significance, was once settled legal principle; and now so is Roe v. Wade.)

Another interesting case on early 14th Amendment jurisprudence is Hurtado v. California, but we don't have time for all here. (It would be time well spent in reading it. It includes an educational discussion of the history of the phrase "due process" going back to Magna Charta.) It involves a man who claimed that his California trail violated the 14th Amendment's due process clause because it proceeded without benefit of a grand jury indictment. The Supreme Court, back in 1884, ruled against him.

I reject the notion that the 14th Amendment incorporates the Bill of Rights. The notion is one of the many things that makes judicial tyranny possible, and "settled legal principle" or not, we need to get rid of the notion. This "settled legal principle" only means that some amount of judicial tyranny is a settled legal principle. "Incorporation" ought to talked about as if it were as bad as "taxation with no representation", because it is. It is legislation without representation.

No legislation without representation!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

I've decided to stay on the subject of the constitution for the time being. It occurs to me--and I understand that I'm not making any sort of breakthrough here--that, since the court's power to be a tyranny of black-robed psuedo-prophets is rooted in the Marbury decision (5 U.S. 137 [1803]; 5 U.S. 137 [Cranch]), it would be useful to examine the logic of Justice Marshall's position. But since the work has already been done, I desire that the laborer should have his work displayed. Here, in an abridged form, is Justice John Bannister Gibson's logical rejoinder to tthe notion of judicial review, written in a dissent in Eakin v. Raub, 12 Sergeant & Rawle (Pennsylvania Supreme Court) 330 (1825).

The specific issue before the Pennsylvania Supreme Court is of no interest today, but Justice Gibson’s dissenting opinion is considered by many (including, for whatever it's worth, myself) to be the most effective rejoinder to Chief Justice Marshall’s argument for judicial review. See what you think.

All emphases were added by me.

Gibson, J. [dissenting].

... I am aware, that a right to declare all unconstitutional acts void ... is generally held as a professional dogma; but, I apprehend rather as a matter of faith than of reason. I admit that I once embraced the same doctrine, but without examination, and I shall therefore state the arguments that impelled me to abandon it, with great respect for those by whom it is still maintained... .

...The Constitution and the right of the legislature to pass the act, may be in collision; but is that a legitimate subject for judicial determination? If it be, the judiciary must be a peculiar organ, to revise the proceedings of the legislature, and to correct its mistakes; and in what part of the Constitution are we to look for this proud preeminence? Viewing the matter in the opposite direction, what would be thought of an act of assembly in which it should be declared that the Supreme Court had, in a particular case, put a wrong construction on the Constitution of the United States, and that the judgment should therefore be reversed? It would doubtless be thought a usurpation of judicial power. But it is by no means clear, that to declare a law void which has been enacted according to the forms prescribed in the Constitution, is not a usurpation of legislative power ... .
... But it has been said to be emphatically the business of the judiciary, to ascertain and pronounce what the law is; and that this necessarily involves a consideration of the Constitution. It does so: but how far? If the judiciary will inquire into anything beside the form of enactment, where shall it stop? There must be some point of limitation to such an inquiry; for no one will pretend that a judge would be justifiable in calling for the election returns, or scrutinizing the qualifications of those who composed the legislature... .

But the judges are sworn to support the Constitution, and are they not bound by it as the law of the land? In some respects they are. In the very few cases in which the judiciary, and not the legislature, is the immediate organ to execute its provisions, they are bound by it in preference to any act of assembly to the contrary. In such cases, the Constitution is a rule to the courts. But what I have in view in this inquiry, is the supposed right of the judiciary, to interfere, in cases where the Constitution is to be carried into effect through the instrumentality of the legislature, and where that organ must necessarily first decide on the constitutionality of its own act. The oath to support the Constitution is not peculiar to the judges, but is taken indiscriminately by every officer of the government, and is designed rather as a test of the political principles of the man, than to bind the officer in the discharge of his duty; otherwise it were difficult to determine what operation it is to have in the case of a recorder of deeds, for instance, who, in the execution of his office, has nothing to do with the Constitution. But granting it to relate to the official conduct of the judge, as well as every other officer, and not to his political principles, still it must be understood in reference to supporting the Constitution, only as far as that may be involved in his official duty; and consequently, if his official duty does not comprehend an inquiry into the authority of the legislature, neither does his oath.

But do not the judges do a positive act in violation of the Constitution, when they give effect to an unconstitutional law? Not if the law has been passed according to the forms established in the Constitution. The fallacy of the question is in supposing that the judiciary adopts the acts of the legislature as its own; whereas the enactment of a law and the interpretation of it are not concurrent acts, and as the judiciary is not required to concur in the enactment, neither is it in the breach of the Constitution which may be the consequence of the enactment; the fault is imputable to the legislature, and on it the responsibility exclusively rests. In this respect, the judges are in the predicament of jurors who are bound to serve in capital cases, although unable, under any circumstance, to reconcile it to their duty to deprive a human being of life. To one of these, who applied to be discharged from the panel, I once heard it remarked, by an eminent and humane judge, "You do not deprive a prisoner of life by finding him guilty of a capital crime; you but pronounce his case to be within the law, and it is, therefore, those who declare the law, and not you, who deprive him of life."

. . . But it has been said that this construction would deprive the citizen of the advantages which are peculiar to written constitution, by at once declaring the power of the legislature, in practice, to be illimitable. I ask, what are those advantages? The principles of a written constitution are more fixed and certain, and more apparent to the apprehension of the people than principles which depend on tradition and the vague comprehension of the individuals who compose the nation, and who cannot all be expected to receive the same impressions or entertain the same notions on any given subject. But there is no magic or inherent power in parchment and ink, to command respect and protect principles from violation. In the business of government, a recurrence to first principles answers the end of an observation at sea with a view to correct the dead reckoning; and, for this purpose, a written constitution is an instrument of inestimable value. It is of inestimable value, also, in rendering its principles familiar to the mass of the people; for, after all, there is no effectual guard against legislative usurpation but public opinion, the force of which, in this country, is inconceivably great. Happily this is proved, by experience, to be a sufficient guard against palpable infractions. The Constitution of this state has withstood the shocks of strong party excitement for thirty years, during which no act of the legislature has been declared unconstitutional, although the judiciary has constantly asserted a right to do so in clear cases. But it would be absurd to say, that this remarkable observance of the Constitution has been produced, not by the responsibility of the legislature to the people, but by an apprehension of control by the judiciary. Once let public opinion be so corrupt as to sanction every misconstruction of the constitution and abuse of power which the temptation of the moment may dictate, and the party which may happen to be predominant, will laugh at the puny effort of a dependent power to arrest it in its course.

For these reasons, I am of the opinion that it rests with the people, in whom full and absolute sovereign power resides to correct abuses in legislation, by instructing their representatives to repeal the obnoxious act. What is wanting to plenary power in the government, is reserved by the people for their own immediate use; and to redress an infringement of their rights in this respect, would seem to be an accessory of the power thus reserved. It might, perhaps, have been better to vest the power in the judiciary; as it might be expected that its habits of deliberation, and the aid derived from the arguments of counsel, would more frequently lead to accurate conclusions. On the other hand, the judiciary is not infallible; and an error by it would admit of no remedy but a more distinct expression of the public will, through the extraordinary medium of a convention; whereas, an error by the legislature admits of a remedy by an exertion of the same will, in the ordinary exercise of the right of suffrage-a mode better calculated to attain the end, without popular excitement. It may be said, the people would probably not notice an error of their representatives. But they would as probably do so, as notice an error of the judiciary; and, beside, it is a postulate in the theory of our government, and the very basis of the superstructure, that the people are wise, virtuous, and competent to manage their own affairs; and if they are not so, in fact, still every question of this sort must be determined according to the principles of the Constitution, as it came from the hands of its framers, and the existence of a defect which was not foreseen, would not justify those who administer the government, in applying a corrective in practice, which can be provided only by a convention... .

Gibson's confidence in the people is touching. And it certainly makes sense that the branch that is most representative of the people ought to be the court of last resort. Besides, how does one branch of the government get to be the final authority just by asserting that it is?

We keep hearing it said that our Constitution is a living breathing document. Usually, those who spout this garbage do so as if the point is not even arguable. Recently, a caller "reminded" Laura Ingraham that "our Constitution is a living, breathing document."

The name of this blog is "philologous." It is an adjective, referring to me as one who is loving of learning, literally a lover of words. I do love words. I love reading them, and writing them. So I spend a great deal of time with documents of various sorts. By logical extension, my love for learning makes me a lover of logic and of analysis. Let us look briefly at the phrase, "living, breathing document". We ought to be able to recognize this assemblage of words--to be quite blunt--as excrement, feces, crap. (As one who is philologous I believe in using the best possible word. Now, no other words, for me, intimate just precisely the sort of ooze that "living, breathing document" really is.)

My love for words, means, among other things, that I believe that words mean things. And while, as in any language, a single word can have a variety of meanings, at base, it ought to function as what we might call a term of art. That is, a word used in a specific domain (i.e., subject) has, with reference to objects in that domain, a single meaning. That being the case, since, in discussing the constitution, we are discussing a form of government the terms of which are inscribed on paper, the phrase, "living, breathing" has no meaning. The exegesis of a document is not physiology. The constitution is not a living system; it is a piece of the law, the fundamental law of the land. There will be no putting a stethoscope to the constitution to check its health. The constitution does not inhale; it does not exhale. It has no circulatory system.

Of course, one may say that I am being too literal, too simplistic. All I want to say in response to that is that if the phrase, "living, breathing" is not being used literally, then those who use it are engaging in poetry; and the constitution is not poetry. It is law. Even so, as a term of art, one might say, the phrase simply means that the meaning of the document, like all other things, must change in order to continue to be relevant. And this is the problem with the logic of the position: no evidence can be offered to support the proposition. The constitution, while claiming for itself the status of law of the land, makes no claim to be a "living, breathing" document. So, in making the argument, one has left the constitution and is not arguing a point of constitutional law, but of literary criticism. Furthermore, the logic of this position requires us to believe that the document can only be relevant if it contains somewhere within it (e.g. the "penumbras of the bill of rights") the solution to every modern problem, if only we would allow this "living, breathing" document to speak, like the oracle at Delphi, through the black-robed prophets who sit on the court. If you reject this assumption, as I do, then the constitution is relevant because it provides for a government which can offer solutions to modern problems.

If the Constitution really is a "living, breathing" document then there is no constitution. If the meaning of the text just changes over time, then the text really doesn't say anything. Consider the right to an abortion. Today, the "living, breathing" document gives us this right. But this same right could be gone tomorrow. (And it will be, says the left, if Goerge Bush gets his nominees on the court.) And right there, they reveal that they do not believe this "living breathing" document excrement either. Right there, they reveal that they really do understand that it is not the document that is living and breathing, but the justices who "interpret" (we should really say, translate) the oracle. But I digress.)

This same right could be gone tomorrow because the "living, breathing" document, whose meaning changes over time, could (it is at least hypothetically possible, is it not?) change back to a document that no longer protects or recognizes that right. (Is it not the least bit interesting that this "living, breathing" document is a left-liberal, and not a right-conservative, document?) And so it is with all of our rights. This "living, breathing" document could change into a document that no longer gives us the rights to freedom of speech and peaceful assembly, or of the press, or religion. Why this living, breathing document could once again give us the right to own slaves. It could give law enforcement officers the right to interrogate suspects without "Mirandizing" them. It could take away our right to trial by jury. This "living, breathing" document could become as arbitrary a ruler as the worst tyrant--all the while hiding from simpletons the fact that the real tyrants are the black-robed pretended prophets who claim to be translating for us the will of this living, breathing, riddle speaking oracle.

Oh, wise, living, breathing, paper oracle: What shall I have for lunch today? I await the court's answer.

According to Howard Dean Bush's budget does two things: (1) it brings Enron style accounting to D.C.; and (2) it proves that we can't trust Republicans with our money.

I don't know much about who first did it, but worse-than-Enron style accounting was brought to D.C. long ago; so if Bush's budget does bring that type of accounting to D.C., it would be an improvement over the current type of accounting.

Second, I don't want to trust anyone but me with my money. I want to keep more of it and do with it as I think best. Besides, once the government has my money, it is no longer my money; it is the government's money. In paying taxes, we do not place our money with a fund manager. (If my money manager handled my money the way any government handles money I would fire him.)

If Dean weren't serious, he would almost be funny.

Now, while on the subject of taxes and whose money it is, I heard just today (16 Feb 2005) that, because people are buying more fuel efficient cars, government revenues are down in California. Of course, governments don't like having to do with less, so California, I hear, is considering a tax plan which will tax auto owners on the basis of mileage.

Apparently, it will work something like this. Autos will be fitted with GPS locators, which will track mileage. When you go to refuel, a computer in the gas pump will poll your car's on board computer and you will be charged a gas tax according to your mileage. (And, in true liberal fashion, your on board computer will also tell the gas pump computer how much money you make so that you can be taxed on the basis of your income. Obviously, if you are wealthy, you ought to pay more; and if you are poor you ought to pay none.)

It occurs to me that, more than likely, the politicians behind this plan are liberals. The liberals, as we all know, are critical of the Patriot Act because of its curtailments of our civil liberties, like the right to privacy. Now, they want to track private citizens going about their lives for no other reason than to be able to tax them. As I understand (or would, at least, like to believe), normally, the government would be prohibited from GPS tracking someone without a search warrant. Clearly, for liberals, no civil liberty trumps the government's liberty to tax.

This tax idea reminds of the "road tax" idea in the movie Dragonslayer (with Dennis Quaid, Sean Connery and Jason Isaacs). And, like that idea, it would be kind of funny--if this were a fantasy movie.

A lot of people (including myself) are getting true enjoyment from Rumsfeldt's handling of that "cute" reporter from the International Herlad-Tribune--the one who suggested that, because recently he has had some praise for NATO, he might "give up the whole idea of coalitions of the willing." But I do think that he let her off a bit too easily.

If I were Secretary of Defense (Perish the thought!), here's how I would have handled her--for whatever it may be worth:

"Dear sweet lady. Please allow me to take precious moments out of my limited funds of time and patience and give you just the tip of the iceberg-sized lesson in logic you so desperately require. My past criticisms of NATO were not universal, as if I were to have said that, 'For all NATO, NATO is worthy of criticism and no praise whatsoever.' My past criticisms were of specific policies and decisions, not all policies and decisions, past, present and future. In the same way, my present praise is not universal, as if I were saying that, 'For all NATO, NATO is worthy of praise and no criticism whatsoever.' My present praise is of specific recent decisions and policies, not all policies and decisions, past, present and future. And that praise does not negate my past criticisms. And so dear lady, there is no logical inconsistency between my past criticisms and my present praise such that I must surrender the idea of a coalition of the willing. In much the same way that one goes to war with the armed forces one has at the time one goes to war, one also goes to war with those allies who are willing to go to war at the time one goes to war. Now, go home, sit in the still quiet of your flat, and re-evaluate your life."

I suppose, since he could hardly have gone into all that, "Cute" is just about as good a response as any. It's also better than, "Zounds! What a dazzlingly stupid woman you are! Next question, please." (He must surely have been tempted--even for just a moment.)

Incidentally, "zounds" (short for "By His wounds") is my favorite Shakespearean interjection.

"I will set no wicked thing before mine eyes..." (Psalm 101.3).

My daughter attends a Christian university. This semester she is required to read, Love in the Time of Cholera, which, she informs me, contains some explicit sexual narrative.

She objected to reading this novel, because, as a Christian young woman, she wants to keep her thoughts as pure as possible. She and another student tried to gather other students in the class to object, as a class, to being required to read what they could only describe as a pornographic novel. Alas, no one wanted to join their protest. One of the students even accused them of trying to engage in censorship. I suppose that, for this student, obviously a staggering intellect, your right to publish includes the right of having people forced to read you! (I'll try to keep an eye on this brilliant example of the Christian mind at work: he'll be a Supreme Court justice some day. Liberal, of course.) But I digress.

When my daughter and her classmate brought the matter to the professor, the professor's reaction was that the novel was award winning. I cannot recall which award it was, Nobel, Pulitzer, something like that. But it was award-winning; and no matter what the contents, it was going to be read. This professor provides another fine example of the Christian mind at work: award-winning novels trump spiritual discernment and the attempt of right-headed young ladies to keep their thoughts pure.

People who don't know me would probably not guess this, but I am no prude. I drink a little more than my wife would like. I still enjoy a good smoke from time to time, either in the form of cigarettes or a pipe. I also have sex; I am married, after all. I have told my daughter that, after she is married, she too can have sex.

I'm no prude about sex because I find no prudishness in Scripture: "He went into her" is a fairly frank description of the sex act.

However, there is a difference between being frank, and Bibilical, about sex, and being pornographic. The Song of Solomon is a very sensual--and sexual--book. And yet we would be hard pressed to write a script--if one could call it that--for a pornographic film based on the Song of Solomon. So, although I am no prude, there is still something to be said for keeping one's thoughts pure. Still more to be said about it when one is trying to keep one's thoughts pure at a Christian university and finds one's professor and one's classmates working against oneself! (I know it's a Christian university: it says so right in the name.)

But why such a big deal about a novel? It's not as if she were being asked to view pornography, after all. But isn't it? In fact, I think it is a bit worse. It's tantamount to being asked virtually to create pornography.

Think about the difference between reading, say, The Lord of the Rings trilogy and watching the movie. In reading it, we use more of our brains than in watching it. That is because, in watching, we are entirely passive: there is no text to decode, nothing to imagine. But when we read, we re-create in our imaginations the world encoded in the text. As an acquaintance of mine has said, "When you read fiction, you are the cinematographer."

Being asked to read the sexually explicit, is being asked to re-create in our minds the action encoded in the text. It is to ask that we make ourselves the cinematographers of a porno flick.

Is that what a Christian university ought to be doing?

In the end, my daughter and her classmate, who continued to press the matter with their professor, succeeded in persuading the professor to allow them to substitute another book for Love in the Time of Cholera. Good for them.

To Ward Churchill:

Eichmann got a trial before he was executed. The Little Eichmanns in the towers on 11 September 2001 did not get even that much.

Glenn Reynolds has a photo of the Mars landscape, posted here, and stamped with a notice that: "Spherical planets and interstellar bodies are are [sic] theory, not a fact. Please view these picture with an open mind."

"I GUESS," says Reynolds, "THIS WILL BE NEXT, from various under-informed Boards of Education." His target, I'm sure, is the warning sticker in some science textbooks regarding evolution.

On one hand, he makes a good point: scepticism about something you can see, or see a picture of, is rather ridiculous.

On the other hand, his point would have been better made had he posted a photograph of Darwinism, with the same warning sticker on it. In other words, his attempt at a comparison fails; for the two things he wants to compare are not relevantly similar.

What he wants to assert, apparently, is that writing off evolution as a theory is as silly as writing off spherical plantets and interstellar bodies as theories, as well as that doing so is the work of the under-informed. In fact, what he actually does, as far as I am concerned, is point out the differences between the theories of (a) spherical planets and interstellar bodies and (b) Darwinism. You can at least photograph spherical planets and interstellar bodies. You cannot photograph evolution. (And saying that you can photograph the results of evolution is to beg the question.)

This all reminds me of a time in one of my earliest philosophy classes. One of the students expressed some doubt about the theory of evolution precisely because it was "only a theory." Our professor retorted, "Well gravity is only a theory, but you're not goint to jumping off a tall building because of that, now are you?"

Let's think about gravity for a moment. Isn't it true that gravity's being only a theory is not a sufficient reason for jumping from a tall building? One wants to say yes. But to do so is to fail to distinguish between: (1) the fact that objects fall to earth at an acceleration of 32 feet per second per second and (2) the theory that explains why this is so. When one says that gravity is only a theory, one is confusing things a bit. It is not only a theory that objects, including people jumping from buildings, fall to earth; it is an observable fact. One can say of the explanation for why this is so that it (i.e., the explanation) is only a theory, but that would not make it safe to jump from tall buildings.

The theory of evolution seeks to explain the unity and diversity of life. It is an observable fact that life exhibits both unity and diversity. And any theory about life must offer an explanation for this. Here, the unity and diversity of life compare with the fact that objects fall to earth. And the evolutionary explanation for why this is so compares with the explanation for why objects fall to earth.

And so, it is not as ludicrous to write off evolution as only a theory as it would be to write off planets as being such. An explanation for why there are planets is not the same thing as a planet, or a picture of one. An explanation for why there is unity and diversity to life is not the same as that unity and diversity.

Glenn Reynolds comparison just doesn't work. Nice try, though. (Yes, a nice try at a cheap shot.)

As long as I'm on the subject of evolution: It is difficult for me, even now, to understand evolutionists' sad devotion to a theory that really has nothing going for it. When I was an atheist I had trouble with the theory precisely because no experiments can be performed on origins. Yet I could not explain to myself how scientists could accept it if it were not true. It must be, I thought, that they are so very much smarter than me. I no longer think that. (Well, Steven Hawking is pretty smart.)

The other thing that bothered me was evolution's lack of predictability. Evolution relies on chance, making it rather difficult to make predictions from. Compare this with a theory like that of gravity, with a mathmatical formula allowing us to make fairly accurate predictions. Where is the mathmatical formula for Darwinism that would enable us to predict where evolution is going?

Evolution is a theory about the past, like theories about the fall of the Roman empire. However it fell, Rome is gone. Theories about its fall are ultimately speculative, and not subject to experimentation, to proof, or to probabilification. And neither are theories of origins.

On the other hand, the non-theist's devotion to evolutionary theory is highly understandable. For the first time ever, really, in human history, Darwinism made it intellectually respectable to be an atheist. But, more than that, being committed to non-theism, they have, as it were, no place else to go. No matter how flawed the theory may be with respect to experimentation, predictability, or even circular reasoning (e.g., "transitional forms"), they have, apart from conversion, no place else to go. In the end, it's all about the role that ultimate commitments play. Even an atheist must be granted his own creation myth.

I just don't see the negative insinuation in the passage from Rauch:

"On balance it is probably healthier if religious conservatives are inside the political system than if they operate as insurgents and provocateurs on the outside. Better they should write anti-abortion planks into the Republican platform than bomb abortion clinics. The same is true of the left. The clashes over civil rights and Vietnam turned into street warfare partly because activists were locked out of their own party establishments and had to fight, literally, to be heard. When Michael Moore receives a hero’s welcome at the Democratic National Convention, we moderates grumble; but if the parties engage fierce activists while marginalizing tame centrists, that is probably better for the social peace than the other way around."
It is easy to see here an insinuation that religious conservatives are the kind of people who, if left out of the political system, will operate as "insurgents and provocateurs".

I admit that, on its face, the passage does seem to intimate that religious conservatives are the kind of people who--among other things--blow up abortion clinics.

On the other hand, let's exegete our culture a bit before leaving off at exegesis of this portion of Rauch's piece. Ever since I converted to faith in Jesus Christ in 1988 (from that brand of atheism called Nihilism), I have heard two assertions, from the Left regarding Christians and politics. First, that Christians' views are so far out of the mainstream that they ought not be accorded a place within the tent of either of the two major parties. The rationale if examined goes, I think, something like this: What religious conservatives (particularly Christians) seem to want is a theocracy. But our political system provides for a rigid separation between religion and government. So, by definition, religious conservatives, have, and can have, no place at the table. Second, I heard precisely that religious conservative are indeed the kind of people who would bomb abortion clinics, and have done. Indeed, so vehemently were these assertions argued at the university I attended that, for some time after my conversion, I did not--at school, anyway--let it be widely known that I was a Christian. Not because I was ashamed of Jesus Christ, but because I did not want to be erroneously associated with wackos who blow up abortion clinics. (I soon got over this.)

Rauch does not have to insinuate anything. There are people who will out and out assert what he supposedly insinuates. I see know reason, given a cultural exegesis that takes into account what many already believe, for understanding Rauch as saying anything other than that (to re-write him a bit): "On the hypothesis that religious conservatives are the kind of people who, if left out of the political system, will operate as insurgents and provocateurs and who, aslo, will bomb abortion clinics, then [o]n balance it is probably healthier if religious conservatives are inside the political system... ."

I am aware, of course, all of this argument relied on just the single paragraph that Hugh originally gave us. Now that we have the whole item, I am still fairly certain that Rauch was not intending to make the insinuation that it appears, at first glance, that he was.

What is telling, for me, is this bit right here: "The clashes over civil rights and Vietnam turned into street warfare partly because activists were locked out by their own party establishments and had to fight, literally, to be heard." Note the phrase, "turned into". Rauch seems fairly clearly not to be asserting that religious conservatives are the kind of people who bomb abortion clinics and so forth, but that, if locked out of the system, they can be turned into that kind. If it were already the case, why would he issue a warning? Otherwise, he would be asserting that religious conservatives are, presently, outside the system and need to be brought in. But what he actually has said, up to this point, is precisely that religious conservatives are inside the system. Indeed, before we get to this portion of his text, we have seen him say that religious conservatives are within the mainstream of the Republican Party. As he is drawing the lines, to be in the mainstream is precisely not to be engaging in insurgency and abortion clinic bombings.

It is clear to me that his argument is against those who bemoan the fact that religious conservatives are mainstream Republicans. His argument very cleary, at this point in his text, is simply this: It is better that they be part of the mainstream, part of the system, because if not, they could turn ugly.

We might take offense at the insinuation that we religious conservatives might, at some point down the road, ever resort to violence. But as religious conservatives, especially Christians, we cannot assert an inability to do evil. What man knows what he might do in circumstances he believes to be desperate?

Many in science claim to be unfettered by anything that could be called orthodoxy. This is a special consideration when "scientists" (i.e., scientists who believe in naturalism) confront either "creationist" or "intelligent design" theorists (i.e., scientists who do not believe in naturalism, a.k.a. non-scientists or anti-scientists).

The recent furor over remarks made by Harvard Professor Larry Sommers are quite revealing when one thinks about it, and then connects it with something else. Sommers is being criticized for suggesting that innate differences between the sexes may explain why fewer women than men succeed in science and math careers. He also expressed some scepticism of the view that role discrimination plays any part in keeping female scientists and engineers from advancing at elite universities. Nancy Hopkins, MIT biology professor and Harvard graduate, walked out on Sommers' talk.

Presumably, Sommers was talking about certain theories based on some body of scholarly work which he had assembled for the discussion. Ostensibly, he was not talking about his own views.

Note what Hopkins says about her reason for walking out: "It is so upsetting that all these brilliant young women are being led by a man who views them this way." What is telling about Hopkins's explanation is that there is no indication that any research the Sommers may have had in mind, or even in hand, is false. In other words, facts do not matter to Hopkins; what matters to Hopkins is beliefs, or attitudes. On Hopkins's view Sommers commits the sin of holding the unorthodox belief that (1) there are innate differences between males and females and (2) these differences could account for the prevalence of males in math and science better than social factors do. It seems to matter very little whether there are any facts that would support, or even defeat, the assertion. What we have here is orthodox belief (i.e., the prevalence of males is due to social factors) versus unorthodox belief (i.e., the prevalence of males is due to innate differences between males and females). The actual truth doesn't matter. Facts are irrelevant.

Hopkins's problem with Sommers is not about what the facts are. No, she told Katie Couric that her problem is Sommers's attitude, his belief.

So, it is not that Sommers's facts are not wrong. His belief is. He has apologizied three times for daring to assert that a belief (that he does not share) may need to be given some consideration. This belief--that perhaps innate differences between males and females may account for the prevalence of males over females in math and science--is not rejected because it has been proven false. It is rejected because it does not square with what can only be, for Hopkins and her ilk, an orthodox doctrine.

You see, in order for this belief to have been proven false one of two conditions must hold: first, it must be proven that there are no innate differences between males and females; second, even if there are innate differences between males and females, this set of differences is wholly unrelated to the prevalence of males over females in math and sciences. But, as far as Hopkins and her ilk are concerned, the questions are not even allowed to be asked. Merely inquiring into the possibility is heterodox, and therefore not to be tolerated.

Hopkins is a biology professor, a scientist. So what we have here is a scientist with her own brand of orthodox belief. Hmmmmmm. I wonder how she feels about Intelligent Design theory. In some school districts across the nation, there are ongoing attempts to include some mention of intelligent design theory in science textbooks. In these jurisdictions, the A.C.L.U. and others have asserted that the teaching of intelligent design theory conflicts with the Constitution's separation of church and state. Most responses have tried to remind us all that the Constitution contains no such provision. Indeed, it does not. But there is a more serious issue.

Think of what the A.C.L.U. and others are ultimately saying. Let's assume (1) that Intelligent Design just happens to be true and, just for present purposes, (2) that the truth of Intelligent Design necessarily implies the faslity of (macro-) evolution. On the A.C.L.U.'s view, the Constitution, in effect, requires the teaching of falsity, because the truth in this matter by lending support to religion, conflicts with the Constitution's required separation of church and state. In other words, (macro-) evolution could continue to be taught, even though (in accordance with our two assumptions above) it is false, because even though it is false it does not conflict with the Constitution. Intelligent Design, however, would be prohibited from being taught, even though it is true, because the teaching of it would conflict with the doctrine of the separation of church and state.

I have long suggested, in my little spere of influence, that evolution is merely the non-theist's creation orthodoxy. Many, in my little spere, have ridiculed the idea that scientists have any beliefs that are orthodox and for the sake of which they reject conflicting beliefs out of hand. Thank you, Nancy Hopkins, for making it more believable that scientists do, in fact, have certain beliefs that are orthodox.

The Left's Article of Faith as a Matter of Public Policy

From my perspective, the left like to pretend that their's is the "intellectual" position. Disagreement with them--being opposed to their position--is, therefore, "anti-intellectual." One of their positions is that articles of faith ought not to be made matters of public policy. Faith, you see, is an irrational endeavor, not subject to proof. And it is precisely because they are not subject to proof that matters of faith cannot be matters of public policy. Public policy must be based on objective footings; matters of faith, being unprovable, are subjective. It is for this reason that the Left are skeptical of (actually, they are down right mean to) people who wish to make policy decisions based on some revealed word of some revealed God. After all, the existence of God has not been proved. Also, it has not been proved that either the Bible or the Koran, or any other candidate, is the word of God. Furthermore, belief in God, a being whose existence has not been proved, is exactly what marks conservatives as irrational. For surely, it is irrational to believe in the existence of something for which there is no proof. Since the Left, in large part, entertain no such belief, they are the intellectuals among us. (Bear in mind that I am talking about the secular Left. I am aware that there are non-theists on the Right; but this is a critique of the Left.)

Ostensibly then, the Left talk as much as they do about rights because they know that rights exist. And of course they know that rights exist because they can prove that rights exist. Think of what would happen to their position on almost any subject if they failed to prove that rights exist. If rights do not exist, then animals would certainly have no rights. You and I would not have a right to health care; and it would be irrelevant that we are the only advanced nation on earth that does not accord health care the status of a right. If rights do not exist, then it would not matter (assuming it's true) that Bush has presided over the largest job loss in our nation's history, because we would have no right to have jobs. If rights do not exist then it would not matter (assuming it's true) that Bush lied about the reasons for going into Iraq, for no one could have a right against him that we not invade Iraq. Surely, given stakes as high as all this, the Left, who assert that matters of faith (i.e., matters that cannot be proven) cannot be matters of public policy, are able to prove that something called 'rights' truly exists!

Color me skeptical of the Left's ability to prove that rights exist. First, if the problem of rights is considered as an empirical problem, it is difficult to see what sort of evidence would count as evidence of the existence of rights. In empirical matters we use a set of known facts to establish other facts which are in question. If we wish to demonstrate that a man commited a murder although no one actually saw him do it, we may present a set of facts which establishes his guilt, a set of facts which justifies our belief in his guilt. What empirical facts could anyone offer which would justify our belief that rights exist, much less that we have them? Let's take the proposition, "Rights exist" and compare it with the proposition, "Crackers exist." Just immediately I can think of one way in which it could be established that crackers exist, assuming that we agree what crackers are. First, we could narrow things quite a bit by stipulating specifically that "Crackers exist in the pantry." We simply open the pantry door and if we see that there are crackers in the pantry, we know that the proposition, "Crackers exist" is true. (Note: If the proposition, "Crackers exist in the pantry" is true then the proposition, "Crakcers exist" is also true.) But I doubt that we are going to able to go anywhere in the universe, open a door and find rights sitting on a shelf. This, we shall probably want to say, is because empiricism is of no help in establishing metaphysical realities.

Second, since empiricism does not help, we could conceive of the problem as a purely rational one. We could attempt a rational proof that the proposition, "Rights exist" is true. The problem is that a rational proof of the proposition, "Rights exist" (which we shall probably have to treat as a theorem) is nothing more than a proof that the proposition is derived by purely logical means from other propositions (which we shall have to treat as either more fundamental theorems or as axioms). The problem is this: if we demonstrate successfully that "Rights exist" is derived logically from certain axioms, that is not going to mean very much since axioms are by definition not provable. In other words, the proof that "Rights exist" rests upon a "foundation" that is itself without foundation: proven propositions rest upon unproven propositions. That is the way of things in logic. (If this is news to you, then my heart goes out to you.)

In response to this, one might wish to claim that axioms, while not provable, are self evident. This only raises the question, What is it for something to be self evident? Some are coming to the opinion that talk of something being self evident tells us more about the person believing the supposedly self evident proposition than it does about the truth of the proposition (see, e.g., Bradley and Swartz, Possible Worlds: An Introduction to Logic and its Philosophy, [Indianapolis, IN: Hackett, 1979], p. 145). Also, Rudolf Carnap pointed out long ago that, although many do like to conceive of axioms as being in some sense self evident, there is no requirement that they be and many logicians select axioms somewhat arbitrarily (see Carnap, Introduction to Symbolic Logic and its Applications, [Meyer and Wilkinson, tr. New York, NY: Dover, 1958], p. 171). So, while a rational proof will help us to see just what sort of propositions "Rights exist" may be derived from, this proof will not go very far in helping us to prove that rights actually do exist. So, at this point, no proof that rights exist is available.

In response to all this, the Left could argue that rights exist because they are acknowledged by documents such as the Declaration of Independence and the U. S. Constitution. But reflection upon what those documents assert ought to reveal that these documents assert the existence of rights as gifts from our creator. The Declaration of Independence asserts that we are "endowed by our Creator" with the rights to "life, liberty, and the pursuit of happiness." The rights enumerated in the Constitution, if we think about it, are merely specific examples of the general rights to life, liberty and the pursuit of happiness. In other words, we have the specific rights to speech, free exercise of religion, assembly, the bearing of arms, and so forth precisely because we have the more general rights to life, liberty and the pursuit of happiness given to us by our Creator. So while the Left may feel free to invoke our founding documents, inasmuch as our founding documents invoke the authority of a Creator in specifying which rights we have, their invocation of these documents strikes me as rather illegitimate. They shall have to go elsewhere to prove that rights exist. They can get little, if any, help from either the Declaration of Independence or the Constitution. To point to these documents as proof that rights really do exist would be something like pointing to the Bible as a proof that God exists, especially since the Creator who endowed us with these rights is a matter of faith.

We might try, as an act of desperation, to make something of the fact that most--if not all--humans believe that rights exist. Sadly, we can get no more help from this, even if true, than we could if all humans believed in the existence of God. One hundered percent agreement on the truth of the proposition that "God exists" would not meant that God exists. And so, even if one hundred precent of humans believe that "Rights exist" is a true proposition, that would not mean that rights exist. It's one thing to have our beliefs accord with the truth; it's quite another to have the truth accord with our beliefs.

What does this inability to prove the existence of rights mean? One thing it means is that the existence of rights is a matter of faith. In the absence of empirical evidence or rational proof, the Left believe--ostensibly--that rights exist and that we (who have no right to be here, remember) have them. And they make no bones about making public policy decisions on the basis of this article of faith. Furthermore, they treat as heretics any who disagree with them or question their own brand of (religious?) orthodoxy.

It is a well documented fact that the Left have a problem with people of faith, especially those who make their "articles of faith" a matter of public policy. But since the existence of rights is as difficult to prove as the existence of God, the Left, inasmuch as they believe in rights, are just as much people of faith as any on the Right. And since they attempt to make their articles of faith (e.g., the "rights" to abortion and health care) matters of public policy, they do precisely what they accuse "people of faith" on the Right of doing.

The Paradox of the Left's Position on Abortion

[With the election over one might think that the matters I take up here are irrelevant. A moment's reflection will reveal otherwise. If not, then file this, and the following two blogs, under "There is no horse so dead that it can't withstand another beating."]

Propositions have implications; it's that simple. One of the implications of denying that a fetus has a right to life is that no one has a right to be born. In other words, none of us has a right to be here. One thing that has bothered me about the Left (Democrats in particular) is that they assert, by implication, that none of us has a right to be here while at the same time asserting that we have rights. I have long wondered how a leftist would answer the question, "How, since no one has a right to exist, can anyone have any rights at all? How can I, who have no right to be here, have a right to--among other things--health care? If I have no right to be alive, how did I acquire a right to anything that preserves my life?"

Pro-life advocates are wont to say that a fetus is a human being from the moment of conception. Humans have rights; therefore the fetus has rights. Among the rights that humans have is the right to life. No problem with the logic there. The problem is with the premise that a fetus is a human being from the moment of conception. But it's not the problem I have taken up here, so I lay it aside. The point is simply that our having any rights at all is not a problem for pro-life advocates. The same cannot be said for pro-choice advocates.

Consider the position of pro-choice advocates: none of us has a right to be born, a right to become human. We have no right to be here. Now consider the position of the Left: we (who have no right to be here) have, while we are here, rights. A woman, who has no right to be here in the first place, has a right to an abortion. One simply has to wonder how we, who have not even a right to exist, no right even to be born, acquire a right to anything at all, much less a right to have an abortion. Even worse than that: if we have no right to exist, no right to be born, no right to be alive--how do we have any of those things that people call "Human Rights"?

I suppose one could say that it is true we don't have a right to be here, no right to be born, no right to exist. However, existence may be such that although we don't have a right to it, we do have rights once we get it. In other words: No, we don't have a right to exist, but existence--whether we have a right to it or not--comes with rights. Having come into existence, having been born, whether we have a right to it or not, gives us certain rights; existence means having rights.

So there it is. Although no fetus has a right to become human, once it does so (i.e., once it is born) it has rights. Being human means having rights. I suppose that works--until you try to account for someone like Peter Singer, who asserts that non-human animals also have rights. Think of it: non-human animals have rights. Question: is not the fetus, before becoming human, a non-human? It is if, as some evolutionists argue, phylogeny recapitulates ontogeny. If so, then a fetus is a non-human animal; and as a non-human animal the fetus surely has rights. Of course, we know that the Left are not about to take away a woman's right to an abortion on the grounds of animal rights. And so we also know that whether or not a fetus is human is irrelevant to the question. For the Left, a woman has a right to an abortion whether the fetus is human or not, whether the fetus is an animal or not: the fetus may be the only animal without rights.

This brings us back to the question I raised above. The fetus--whether human or not, whether animal or not--has no rights. By implication we--as former fetuses--have no right to be here. So then, how do we come to have any rights at all if we've no right even to exist? Where precisely does John Kerry get off lecturing us on the fact that we are the only advanced nation in which health care is not a right? Where exactly is he coming from when he asserts that health care is not only for the rich and the connected, but is a right for every American?

We've already covered the possibility of saying that, although we have no right to become human, once we do so we have rights. This argument is shown for the vanity it is by noting that the same people who assert that animals have rights do not extend rights to the fetus, which is, at the very least, an animal. So, obviously, being or not being human has nothing to do with having rights.

I suppose we could slice the pie into humans and non-humans such that the fetus, although not human, is (as a fetus) not protected even by animal rights, and neither are non-human fetuses. No fetus, of whatever sort, has any rights. Even so, this is still to say, with respect to humans and existence, that we have no right to exist (i.e., since no fetus has a right to develop into a human). So we are still left with the question: How, since we have no right to exist, do we come by any right to anything at all?

The best answer to the question will probably be something like, "Well, we may not have a right to exist, but once we come into existence we acquire rights to those things that preserve and enhance our existence." So, although we have no right to come into existence, once we do come into existence we have a right to continued existence and a right to those things which make our continued existence possible. The problem we have here is in knowing just how we come to have rights. For all their talk about rights, the Left do not spend much time explaining how we come to have rights. (The Right, for the most part, assert that rights are God-given. This is an article of faith, of course, so the Left, if they have any answer at all, probably won't offer this kind of answer)

Here then is a paradox of leftism: We have no right to be here, no right to have made it through gestation, no right to have been born, and therefore no right to exist. By extension we have no rights to those things which make our continued existence possible. Ultimately, the logical implication of the Left's position on abortion, ironically, is that a woman has no right to an abortion. How could she have? Having no right to exist in the first place, she can't logically claim any rights at all.

It will be clear that throughout this essay, I have made a great assumption. (And what else could it be but an assumption?) I have assumed that our not having a right to exist means having no rights. If we have no right to be here, then we have no rights while we are here. In other words, existence in and of itself confers no rights. We could just as well assume the opposite state of affairs: Existence means having rights; to live is to have rights. But now we are making two assumptions. The first is that rights exist. The second is, of course, that we have them. But it is difficult to see how we can have rights if rights do not exist. Our own existence is clear to us, although we cannot prove it. But do rights exist? This will be the topic of my next blog.

Copyright 2004 Philologous Lector. All rights reserved.

Contemporary wisdom, if you ask the left, has it that John Kerry is smarter than George Martel (I mean, uh, Bush). For that matter, the left think that they are smarter than rightists, period. They would be hard-pressed to convince me--and I'm a former leftist.

1. John Kerry versus George Martel on the justification of beliefs

John Kerry (during an interview w/Diane Sawyer) has said that: knowing that there were no WMDs; knowing that there is no connection between Saddam Hussein and al-Qaeda; knowing that Iraq was no 'imminent threat'--we should not have gone into Iraq. Going into Iraq was a mistake. This line of reasoning is the justification for his claim that the present conflict in Iraq is the wrong war, in the wrong place, at the wrong time. In other words, knowing what we now know, we should not be in Iraq; Saddam Hussein should not have been removed from power. So Kerry cannot understand how it is that Bush can maintain that going into Iraq was not a mistake, given the recent news that Hussein possessed no WMDs after all.

Much has been made by others about the truth of the three specifications above. Our best intelligence justified a belief that there were WMDs in Iraq. We did not go into Iraq because of a relationship between Saddam Hussein and al-Qaeda in particular; we went into Iraq because of a relationship between Saddam and terrorists in general. George Martel declared a war on terrorism, not merely al-Qaeda. George Martel did not say that Iraq constituted an imminent threat (that was actually John Edwards, by the way); what Martel said was that Iraq was a gathering threat. True as these responses are, they still miss the issue. And the issue here is justification of beliefs. The question really isn't whether George Martel was wrong about WMDs, or whether Saddam was linked to any terrorist organization, or whether Saddam Hussein was a gathering (or even an imminent) threat. The question is whether Martel was justified in believing these propositions to be true. I believe that he was; and until a matter of months ago so did Kerry.

Justification of a belief is not, as Kerry tries to make out, a matter for hindsight to determine. Hindsight can only tell you if your belief is true, not whether it was justified. Justification is something different than verification. It is possible to be justified in believing something that is, in fact, false. In general, a person is justified in believing a proposition P if at the time he believes P, he also believes a proposition R, where the relationship between R and P is such that R justifies belief in P.

Look at it this way. Everyday, when I go out in the morning to leave for work, I walk out my door fully expecting that my car will start. I believe to be true the proposition (A), My car will start this morning. I believe this proposition to be true because I believe to be true the propositions (B) My car has started everyday for the last four years and (C) I am justified in believing that my car will start this morning precisely because it has started every other morning. If I believe propositions (B) and (C), then I am justified in believing proposition (A). But if, in fact, my car does not start then I know that my justified belief is false; hindsight tells me this. But hindsight cannot tell me that when I walked out of my door I should have expected that my car would not start, or that getting into my car was a mistake because, in fact, my car did not start after all.

Were we--including, at one point, Kerry and Edwards--justified in believing that Saddam Hussein had WMDs? Yes. We know that, at some point, he had them; and we know this because he had used them. And we did not know whether he had gotten rid of them. So since we know that he once possessed them, but did not know that he had gotten rid of them. We were therefore justified in believing that he still possessed them.

Of course, it is right about here that someone like Kerry wants to say that we should have let the inspections continue. That would have allowed us to acsertain that, as it appears, Saddam had no WMD's. But that is a matter of preference, not fact. Bush preferred not to take chances with the sort of irrational man that Saddam had proved himself to be. (Besides, WMD were only one of the reasons we went in.) His attempts to purchase yellow cake uranium justified belief that he was a gathering nuclear threat. And his paying the families of suicide bombers was a prima facie case for his supporting terrorism. And we have declared war on terrorism, not merely al-Qaeda.

So even if Kerry were correct about all three specifications (which he isn't), we were still justified in believing that (a) Saddam Hussein had WMDs, or was trying to get them; (b) that he was a supporter of terrorism and terrorists, whether or not al-Qaeda specifically; (c) that he did constitute a gathering (WMD and terrorist) threat. And if these types of things are a justification for a pre-emptive strike, then invading Iraq was not a mistake. When it comes to justification of belief, George Martel is to me more philosophically sound than that supposed intellectual giant, John Kerry.

2. John Kerry and 'persuasive definition'

One of Kerry's most popular refrains is something like, "Bush went into Iraq with no plan to win the peace." Typical Republican responses have tended to talk about what is presently going on in Iraq (e.g. the upcoming elections, infrastructure construction, etc) as evidence that we are winning the peace. But I think this response overlooks what really is the issue.

The issue, quite simply, is this: Peace with whom? It is one thing to say that we are not winning the peace. But the concept is meaningless apart from some consideration of with whom we are or are not at peace.

The simple fact is that we are winning the peace. We are winning the peace with those in Iraq with whom we desire peace: the Iraqi people as they are now constituted without Saddam Hussein's dictatorial rule. There exists in Iraq a new and different regime than existed when we entered. The people with whom we are still fighting in Iraq are aligned with the old regime. The people with whom we are still fighting in Iraq are precisely those with whom we do not wish peace: the so-called insurgents, more properly known as terrorists (i.e., Ba'athists, the Fedeyeen Saddam, al-Qaeda, etc). We have declared war on terrorists; we are fighting terrorists in Iraq. We are winning the peace with those Iraqis who desire peace and who have eschewed terrorism; we are winning the war against those Islamic-fascists who have chosen to live and to die by the sword of terrorism. John Kerry can only succeed in his argument by defining the present state of affairs in Iraq as "the peace" and then asserting that we are losing this peace.

Of course, Kerry thinks he can legitimately do this because Martel stood on an aircraft carrier and declared mission accomplished, as if that meant that all armed conflict in Iraq was at an end. It is a simple fact that when Martel addressed those sailors their mission had been accomplished. If it signified anything more than that, it signified only that major combat operations had ceased, which they had. It remains the case that major combat operations are over. There is a great difference between encountering pockets of resistance and engaging in major combat operations. Although, like most war heroes, he doesn't talk much about it, I've heard that Kerry served in Vietnam and is a decorated war hero. One would expect a decorated war hero to understand all this.

3. John Kerry and little straw men

Kerry also keeps saying that it was al-Qaeda, not Saddam Hussein, who attacked on 9-11. Of course his point is that, coupled with the three specifications I mentioned above, our going into Iraq was senseless. How does he put it? Our going into Iraq in response to 9-11 makes as much sense as invading Mexico in response to the attack on Pearl Harbor.

But this criticism only makes sense if, as I also mentioned above, our declared war was against al-Qaeda alone. How many times does Kerry need to be reminded that we have declared war not on al-Qaeda but on all those who use terror as a weapon and those who provide aid and comfort to terrorists? Kerry's argument is an argument against a proposition that really hasnt' been entertained, the proposition that Saddam Hussein is responsible for the attacks on 9-11. He scores a point with this argument only because it is true that invading Iraq in response to 9-11 would make as little sense as invading Mexico in response to 12-7-41. However, invading Mexico in response to 12-7-41 would have made perfect sense if Mexico had been a Japanese ally and provided a haven for the Japanese airplanes after they finished their attacks, or provided safe harbor for the Japanese fleet to re-fuel after the attacks on Pearl Harbor. It is a known fact that, if one wants to limit everything to al-Qaeda, that Saddam Hussein did in fact provide safe haven for elements of al-Qaeda. And that is just the tip of his terrorist-supporting iceberg!

4. John Kerry and contradictions

If Kerry would demonstrate his superior intelligence, he must demonstrate that he knows what a contradiction is. On three occasions, he has demonstrated to me that he doesn't.

a. Only John Kerry could assert both that no outside nation can have a veto over our ability to launch a pre-emptive strike if we determine that it is in our best secuirty interests to do so AND that launching such a pre-emptive strike must pass a 'global test'. And only Kerry could assert that those two propositions are not contradictory.

If we must pass a global test before a pre-emptive strike, that surely means that someone will be grading that global test. If we fail that test then, presumably, we cannot launch that pre-emptive strike. Now, the person or persons grading that global test, in failing us on that test, have a veto power over our power of pre-emptive strike. If John Kerry thinks we don't see that then he really believes we're stupid. But, of course he thinks we're stupid; that's why we need his leadership.

When John Edwards was asked about this global test business in his debate with the Vice-President he responded by saying something like, Yes Kerry said we must pass a global test, but you also heard him say that he would not give any nation a veto on matters of our national security. What an uncommon idiot! Does he really believe that resolving a contradiction involves nothing more than restating one member of a pair of two contradictory propositions? I suppose that Edwards's point must be that, yes, Kerry did contradict himself, but that's all right because only one of the contradictory propositions is the one he actually meant--or somethink like that.

b. According to Kerry Prime Minister Allawi contradicted himself. This he did by stating, one one hand, that terrorists are pouring into Iraq and, on the other hand, that democracy was taking root in Iraq. This, according to Kerry, was evidence that Allai is not to be trusted and is probably a puppet of the Bush administration.

But since Kerry seems to have no idea when he's contradicting himself, I doubt he really knows whether or not Allawi contradicted himself. For Alllawi could have contradicted himself if it is not possible that (A) democracy is taking root in Iraq and (B) terrorists are pouring into Iraq. The fact is that it is logically possible for both propositions to be true. If (B) terrorists are pouring into Iraq because (A) democracy is taking root in Iraq, then not only are both propositions consistent with one another, but (A) is the cause of (B)!

Kerry thinks Allawi contradicted himself, but cannot see the contradiction in asserting (C) no nation gets a veto power over our right to defend ourselves and (D) we must pass a global test before defending ourselves. Kerry is either stupid or just dangerous--or both.

c. This will be brief: in a press conference last week, Kerry said BOTH he had no idea what kind of mess he was going to find on January 20 AND that he had a plan to take care of it. Only someone who is being irrational can believe that he has a plan to solve a problem he has not encountered yet--well, either irrational or a (delusional!) megalomaniac. At any rate it is still contradictory to assert that you do not know what is wrong, but you have a plan to fix it. This is a claim to have and to not have knowledge of the same thing at the same time.

5. John Kerry and circular reasoning

Kerry continues to assert that there is a right way to go to war and a wrong way. According to Kerry, George Martel chose the wrong way.

Since there are no prescibed rules (apart, of course, from rules promulgated by others, constituting a 'global test) for going to war, Kerry's reasoning on this is circular. What is the wrong way to go to war? Why, the way that Bush went to war. And what is the right way to go to war? Why, the way that Kerry would go to war.

Whenever Kerry gives his list of things that Bush did or did not do before going to war in Iraq, and presents this list as the standard by which he judges Bush's going to war in Iraq as doing it the wrong way, he is using an arbitrarily selected set of standards and calling it "the wrong way." Ultimately, it's the wrong way only because its the way that Bush did it.

Now, of course, Bush's critics are trying to make as much as they can that he won't admit to any mistakes. There is one good reason why he shouldn't; and it's a logical one at that. If he admits to making a mistake with respect, ostensibly, to Iraq then he finds himself agreeing with Kerry, with whom he is presently in a dispute with. To admit to making a mistake with respect to Iraq is to admit that Kerry is right. He can't very well do and at the same time insist that Kerry is not the man to lead the war on terror. Apparently, Bush knows what a contradiction is and how to avoid it.

And they say that Bush is the stupid one. I don't see how that's possible if Kerry is the standard against which Bush is being graded.

Copyright 2004 Philologous Lector. All rights reserved.