The recent decision by San Francisco Superior Court Judge Richard A. Kramer, that California's ban on same-sex marriage is unconstitutional, seems to smack of judicial activism. (Kramer Opionion, at http://www.sftc.org/Docs/marriage.pdf.) Actually, it is a good example of what can happen when people advance legislation which is based on morality, while at the same time avoiding a discussion of morality.

Many are complaining that in finding no rational basis for the ban, Kramer advances his own subjective view. (E.g., Dennis Prager (3rd hour), The Dennis Prager Show, 15 March 2005.) But this isn't exactly what happened. What happened was that Kramer applied what is known as the "rational basis test", one of two tests for determining whether the equal protection requirement is violated. (The other is "strict scrutiny." Kramer applies both tests.) In applying that test (which we'll get to in a moment), Judge Kramer found that the law (i.e., California Family Code section 300, which states that a marriage is a union of a man and a woman, and section 308.5, which states that only a marriage between a man and a woman is valid) is unconstitutional. The law is unconstitutional because it violates the "equal protection and privacy provisions of the California Constitution." And it violates this protection because it fails both "rational basis" and "strict scrutiny."

Kramer begins his analysis by recognizing that "most legislation creates classifications for one purpose or another, and then differentiates upon the classifications." (Opinion, 3.) (This is an important consideration, since the law in question has to do with the classifying of parties who may and who may not marry, especially on the basis of gender.) Kramer further recognizes that this power "emanates from the police power under the United States Constitution...." But this power must be "reconciled with the equal protect clause, which provides that no person shall be denied equal protection under the law."

Reconciliation of police power with equal protection is "manifested in two tests that depend on the nature of the classification created by the legislation." (Opinion, 4.) The first test concerns legislation which creates classifications but does not "implicate fundamental rights." Here, the legislative act is presumed to be valid "as long as there exists a rational relationship between the disparity of treatment and some legitimate government purpose." And the burden is on the one who challenges the legislation. This is the "rational basis test." And this is the test Kramer asserts that the Family Code fails. The second test, "strict scrutiny," involves legislation which does implicate fundamental human rights or which create "suspect" classifications. On this test, the burden is upon the state, not the challenger, to demontrate both that a compelling state interest justifies the law and that the classifications created by the law are necessary. (Opinion, 5.)

It was disputed which of these tests ought to apply, but in the end it didn't matter. After stating that the strict scrutiny test applied to the case, Kramer said that Family Code sections 300 and 305.8 failed both tests.

How does the California law fail the rational basis test? In looking into the matter, courts look into "the correspondence between the classification [i.e., created by the law] and the legislative goals." (Opinion, 5.) We know what are the classifications involved (i.e., man, woman, same-sex, opposite sex, etc). What are the legislative goals?

The state offered two arguments supporting the law: (1) "opposite-sex marriage is deelply rooted in [California's] history, culture, tradition and...courts should not redefine marriage to be what it has never been before." (Opinion, 6); (2) "California has granted to same-sex couples virtually all of the rights that marriage entails." (Opinion, 8.) Quite frankly, one is hard-pressed to see how these two arguments, even if sound, constitute a statement of the purposes of the legislation.

To this first argument, Kramer replied that tradition alone cannot constitutionally justify a law. The argument just fails to explain the legitimate governmental purpose for the law. (Opinion, 8.) Now, much as I disagree with same-sex marriage, I find it difficult not to agree with Kramer here. (He'd be so proud to know that, I'm sure.) When someone asks you the purpose behind something, "Tradition" just isn't an answer. An answer might explain why something is a tradition, but tradition doesn't explain why. And to the second argument, he said it sounded like the old "separate but equal" doctrine that the Supreme Court rejected in Brown v. Board of Education of Topeka, et al.. (347 U.S. 483 [1952]) (Opinion, 9.)

So, when Judge Kramer, asserted that "it appears that no rational purpose exists for limiting marriage in this State to opposite-sex partners," (Opinion, 6) he was not talking about "rational" as if the term meant "makes sense to me, Judge Kramer." It seems clear that, when asked for one, the State offered no explanation of legislative purpose. When a judge asks for a statement of purpose behind a legislative act and doesn't get one, what else can he conclude but that the State does not have a purpose that it can articulate? And if one is looking at the rational basis test, and a statement of legislative purpose is missing, what else can one conclude about the relation between an act and a legislative purpose but that there is no relation between the act and some purpose?

There is one thing though. It doesn't look, upon reading Kramer's opinion, as if challengers had to work all that hard at making their case. Despite his acknowledgment that the challengers had the burden, the only arguments he reviews are the state's arguments in defense of the Family Code sections 300 and 308.5. Legal minds will know better, of course, but it just seems like he gave only lip service to the rule that challengers had the burden. It certainly looks for all the world as if all a challenger has to do to meet his burden (at least in Kramer's court!) under the rational basis test, is assert that no rational relation exists between a law he challenges and some legislative intent.

How does the California law fail strict scrutiny? Recall that strict scrutiny is the test applied when legislation creates a "suspect" class (nothing subjective there!) or implicates a fundamental human right. (Opinion, 16.) According to Kramer, California Family Code sections 300 and 308.5, do precisely these two things. First, the Code discriminates on the basis of gender. "The marriage laws establish classifications (same gender vs. opposite gender) and discriminate based on those gender-based classifications. As such, for the purpose of an equal protection analysis, the legislative scheme creates a gender-based classification." (Opinion, 17.) Now, the state responded to this by saying that the law doesn't discriminate because it applies to both males and females in prohibiting them from marrying members of the same sex. Kramer pointed out that this was the same sort of logic used in miscegenation legislation once upon a time (i.e., that miscengenation does not discriminate because it applies to both blacks and whites).

Oh, and Kramer also noted that the Code implicated a fundamental human right: the right to marry. (Opinion, 19.)

As I've already pointed out, I am no lawyer. But given what seems to be the applicable law and the way that the lines of the debate have been drawn, Kramer, I think, could have done little else even had he wanted to. The only valid argument for prohibiting same-sex marriage is the religious-moral one. The One who created them male and female did, in creating, define them and set limits to--among other things--their sexual behavior. One of those limits is the prohibition of sexual intercourse between members of the same sex. Apart from that concern, there isn't much in the way of argument that proponents of same-sex marriage cannot overcome.

It seems to me that one of the basic issues in this matter is, In a constitutional republic, can a majority of the people of a state give to their values the force of law? Can this be a legitimage legislative purpose? The short answer is: Yes. (All laws are little more than a reflection of a society's values, wherever those values may come from.) But the expanded answer is: Yes, so long as the majority do not trample the constitutional rights of the minority. So the question is: Is there a constitutional right to marry? Frankly, I don't see anything in the Constitution which would forbid a state outlawing marriage period. (I'm an originalist. That means that I also don't think, for example, that the Constitution would prohibit a state from executing a seven year old for a capital crime. I think it would be wrong; and so I would try to pursuade my fellow citizens. But it would not be unconstitutional.) Now, I doubt any state would be foolish enough to outlaw marriage; but I don't think the Constitution prohibits it. The problem with Constitutional exegesis these days is that most people tend to think that the Constitution--somehow--protects everything we deem worthy of protection (e.g., marriage) and prohibits everything we don't think worthy of protection (e.g., laws against abortion). All it does is create a system of government in which the values of a majority are given expression in the laws, without exterminating those in the minority who do not share the majority's values. Should those values change over time so will the laws enacted by the government under the Constitution, without the Constitution needing to undergo much change. But ultimately the Constitution will not protect the minority from a lawless majority; nor will it protect the majority from a lawless minority. This is especially the case when the lawless are finding rights which are "implied" by "penumbras" of other rights.

Be all this as it may, Kramer really isn't the problem. He is a lower court judge, duty bound to abide by the decisions of higher courts. Those higher courts have created the two tests he applied. The real problem is the whole notion of judicial review. That is where the power behind "judicial tyranny" is. But I've already blogged about that.

Having said that Kramer isn't the problem, it will be interesting to see what happens when this is appealed. That is to say, it will be interesting to see what reasoning is given for over-turning Kramer--if he is over-turned. I'd like to see Kramer over-turned on this just because I don't believe in same-sex marriage. I think it will still come to the rational basis test and the strict scrutiny test and whether Kramer erred in his application of the two.

A previous post dealt with the issue of bloggers and sources. "A Citation System For Bloggers". In case it's necessary, a single example of a blog which cites no source will serve to demonstrate the need.

Ed Brayton doubts that the Prayer Book attributed to George Washington really should be. Ed Brayton, "George Washington's Mythical Prayer Journal," Dispatches from the Culture Wars, 13 December 2004, at http://www.stcynic.com/blog/archives/2004/12/george_washingt.php. He is certainly entitled to do so. In commenting on Brayton's post, Jon Rowe, attorney and professor, has this to say:

"To be fair, Washington respected how orthodox Christianity kept the masses moral--but there is no evidence that he himself was one. Washington kept his mouth shut about his beliefs." Comment by Jon Rowe, 13 December 2004, at http://www.stcynic.com/blog/archives/2004/12/george_washingt.php.

Since he cites no source for his claim, I suppose I must take Rowe's word for it that Washington respected Christianty's ability to keep "the masses moral." But, since Washmington, supposedly, kept his mouth shut about his beliefs, we could turn Rowe's argument on its head by saying that we have no evidence that Washington was not an orthodox Christian.

Rowe's fellow traveller, "raj" offers this correction of Rowe:

"Sorry, Jon, Washington recgonized how orthodox christianity kept the masses in line. There is a difference--a big difference." Comment by raj 14 December 14 2004 at http://www.stcynic.com/blog/archives/2004/12/george_washingt.php.

So, according to "raj" it was not that Christianity kept the people moral that Washington appreciated, but that it kept them in line. But again, since he cites no source, I suppose I must take his word for it that this is true.

These two people (i.e., Rowe and raj), by failing to cite sources, simply do nothing for the discussion. It moves neither forwards not backwards. Maybe Washington was not an orthdox Christian. Maybe he appreciated Christianity only because it served the politically expedient purpose of keeping the people in line. These statements may be true; but we don't know it from these two because they have cited no sources. (And one of them asserts that Washington was silent about his beliefs. So how do they know what Washington supposedly believed about orthodox Christianity and the masses?) We shall have to go elsewhere to learn the truth. Really, we shall have to read everything Washington wrote. (But it won't matter because he was silent about his beliefs!) It would be nice if these two had cited a particular passage in the Washingtonian corpus. At least, had they cited secondary sources, we could see what primary sources were relied upon. At this time, we have nothing. Perhaps it is just this situation from which the world is delivered by "he who cites his source." See Mishna, Avot., 6.

I'm taking a break from constitutional matters for the moment.

Sen. Kennedy and others want to increase the minimum wage again. Senate Amendment "To amend the Fair Labor Standards Act of 1938 to provide for an increase in the Federal minimum wage", S.AMDT.44, at , amends "A bill to amend title 11 of the United States Code, and for other purposes," S.256, at ; see also Jared Bernstein, others, "The Next Step; the minimum wage proposals and the old opposition," Economic Policy Institute, 8 March 2000, at . One thing that bothers me about this is that these people do not have to live, or more especially work, with the consequences of raising the minimum wage. Of course that, logically, is not much of an argument against a wage hike. So let me offer two brief arguments against it.

1. The first thing that will happen is that people who actually work for minimum wage will work less; this means that, while their wage will increase, their actual income will decrease. Now, how can this be? Get your calculator handy: we have some math to do.

In another life, I was a restaurant manager. As such, I had three highly controllable costs: food, paper products, and labor. Forgetting the first two as irrelevant to our present purpose, in order to be profitable with respect to my labor costs, that cost could not exceed 16 percent of my adjusted gross sales. So, if I was planning my week, and I projected my sales as $32,000, then my labor cost was going to have to be not more than $5,120. To calculate the number of hours I need to schedule no more than in order to reach this goal, I divide this figure (i.e., $5120.00) by my average hourly wage. (I arrive at this average by totalling the hourly amounts each of my employees are paid and dividing this total by the number of employees.) Let's say that this average wage is $5.90. Dividing $5120.00 by $5.90 I see that I can schedule no more than 867.80 hours (rounding of course). If I actually do $32,000.00 in sales, then I shall make my labor budget.

Let us say, now, that an increase in the minimum wage increases my average hourly wage to just $6.15. Using the same sales and labor budget figures, the number of hours I can schedule comes to 832.52. This means that I shall have to decrease the number of hours that I schedule by 35.27 hours. 35.27 hours. That's near 40 hours; that's almost one experienced, full-time employee's job! Now, am I going to let a full-time, experienced employee go? Not on your life. So where I am going to cut this 35.27 hours? From those minimum wage workers, of course. You know the ones: they just got a raise from the federal government. Their hours just got cut.

The only other way I can make my labor budget is to increase my sales, which I can do only by either increasing the number of people who choose to eat in my establishment (something I was never very good at, honestly) or by raising my prices just enough to cover the average wage increase I just experienced thanks to Congress. Of course, I'll have to raise my prices eventually; so will all of my competitors, who are having the same problem. It's just a matter of which of us will raise his prices first. Since none of us want to go first, all of us are going to cut hours from our minimum wage workers until one of us just has to start increasing prices. This problem will affect anyone who has minimum wage employees; and as employers increase prices to offset the cost of the hike, the benefit will disappear. And when it does, there will be more demands to increase the minimum wage yet again...and again...and again; and so on. And when the wage is increased yet again employers will be faced with the problem the solution to which "caused" the need for the increase.

So, the only way that Congress can make the minimum wage increase of any lasting value will be to forbid employers from cutting the number of hours worked. Not only that, but it occurs to me that Congress will also have to add a price freeze to the wage hike.

2. Another problem with artificial increases in the minimum wage is inflation. Now, I am no economist, so I am more than willing, with respect to the following, to be corrected, but only by an economist. (I will accept a BA or better, in Economics, as qualifying one as an economist.)

In 1983 I bought a Nissan pickup truck for around $10,000. If I had bought that same, or a comparable auto, in 2000, then (utilizing Gross Domestic Product deflator method at http://www1.jsc.nasa.gov/bu2/inflateGDP.html it would have cost me $15,375. Here's a funny thing: when I bought a new car in 2000 it cost right around $15,000! So the amount I was charged for my auto in 2000 was keeping up with inflation.

Now let's look at the artificially (and arbitrarily) set (as opposed to market set) minimum wage. When I first started working, in 1982, the minimum wage was $3.35 per hour. It is now $5.15. Adjusting for inflation, using GDP deflator, that $3.35 would be the equivalent of $5.84 today. Clearly, this seems to bolster the argument for increasing the minimum wage. What it actually does is demonstrate the problem with setting the wage by law: the law itself is not keeping up with inflation. To keep pace with inflation would require new minimum wage legislation every year or so. As I've said, I'm no economist, but I find it difficult to understand how automobile prices have managed to keep up with inflation, and how minimum wages won't if we let market forces set the wage.

Right now, the wage set by Congress is not keeping pace with inflation. So right now, that wage works well for employers. But we are being mentally lazy if we truly believe that a minimum wage can be effectively prescribed by law. When the minimun wage does go up, as it inevitably must, that new wage will not keep up with inflation.

This, I think, explains much of the problem with executive salaries. The minimum wage is meant to be a wage paid to unskilled laborers. The unskilled have nothing to negotiate over. Executives are not unskilled. When companies are competing for executives whose skills they need, those applicants are able to negotiate better packages than the relatively unskilled. And, unlike hourly wage employees, whose wages are a function of the minimum wage, executive salaries, like auto prices, are likely keeping pace with inflation. As with auto prices, I find it difficult to understand how executive salaries--without legislative interference--are able to keep up with inflation, but hourly wages can't. In other words, hourly wages for skilled laborers are likely kept lower than they might otherwise be because they are all a function of the minimum wage; executive salaries, because they are relatively unrelated to the minimum wage, are free to grow with inflation.

There is another problem with the minimum wage. The last minimum wage increase (to $5.15) was in 1996, if memory serves. To keep up with inflation it should be about $5.95. But it isn't $5.95; it's still $5.15. Let's say that Congress raises the minimum wage tomorrow to the $7.00 that John Kerry and others want. E.g., Paul Farhi, "Kerry Backs $7-an-Hour Minimum Wage," Washington Post, 19 June 2004, at http://www.washingtonpost.com/wp-dyn/articles/A51863-2004Jun18.html. That $7.00 will be ahead of inflation, which means that employers will be paying more than even inflation requires. (Raises the question: If they are already paying too much for their unskilled labor, why should they increase wages for their skilled labor?) Fortunately, for employers, this situation will not last long: in 2006, at present rates of increase, inflation will require that the minimum be raised to at least $7.10.

Minimum wage talk is a part of the whole politics of envy. It constitutes little more than a transfer of wealth. There is little difference between my putting a gun to you and telling you to give $5.15 to your neighbor and putting a gun to you to force you to give me $5.15 which I then give to your neighbor. In both cases, I have succeeded in robbing you of $5.15.

The whole politics of envy always makes me think of a song by one of my favorite rock groups of all time: Rush. (Hey, Greg Bahnsen liked the Beatles.) Here are the lyrics to that song:

The Trees

There is unrest in the forest
There is trouble with the trees
For the maples want more sunlight
And the oaks ignore their pleas

The trouble with the maples
(and they’re quite convinced they’re right)
They say the oaks are just too lofty
And they grab up all the light
But the oaks can’t help their feelings
If they like the way they’re made
And they wonder why the maples
Can’t be happy in their shade?

There is trouble in the forest
And the creatures all have fled
As the maples scream `oppression!`
And the oaks just shake their heads

So the maples formed a union
And demanded equal rights
’the oaks are just too greedy
We will make them give us light’
Now there’s no more oak oppression
For they passed a noble law
And the trees are all kept equal
By hatchet,
Axe,
And saw ... .

Rush, "The Trees" (lyrics by Neil Peart), Hemispheres, (Mercury/Polygram 1978).

To my mind, "equality" sought--or enforced--by means of "hatchet, axe and saw" is fascism.

"He who cites his source, brings deliverance to the world." Mishna, Avot. 6.

In the wake of Dan Rather's undoing by bloggers, there have been many attempts to call into question the integrity of bloggers. E.g., Nightline, ABC-TV, 8 March 2005. Bloggers, the argument goes, can make baseless assertions and can assert facts relying on sources that no one can double check. Nightline. A sourceless rumor can traverse the blogospere many times before the true facts are awake, much less putting their shoes on. And even when bloggers try to credit sources, the manner is so slip-shod as to be unintelligible. Then there are those of us who blog more for the sake more of scholarship than of being news hounds. We bloggers, especially those of us who enjoy scholarship, might like to cite sources liberally; and we try to do. We also like to quote--or would like to quote--each other's blogs. But how to do so?

I think we need a system for citing sources, and each other, that approaches uniformity, but without being so rule-laden that one spends more time worrying about how to cite a source than about how to write one's blog. I proffer the following system of citation to the blogging world.

Because the method I am adapting is inspired, in large part, by the system used by lawyers, as outlined in The Bluebook: A Uniform System of Citation, (Harvard Law Review Association), I call this The Blogger's Bluebook.

Should you care to do so, please cite this source as "The Blogger's Bluebook," (Philologous Lector, ed., March 2005), at Philologous Lector, "A Citation System For Bloggers," Philologous, 11 March 2005, http://www.philologous.blogspot.com.

The Blogger's Bluebook
A Manual Of Citation For Bloggers

INITIAL CITATION
1. Single Volume Book

1a. single author:

Author Name (i.e.,John Doe, not Doe, John), Book Title (helpful information about the source, year of publication), page number(s).

Ex: Francis Schaeffer, The God Who Is There (1969), 13-22.

Note that the book title is neither italicized nor underlined. The reasons for this are: (1) the format of citation is not as important as the accuracy of the information, and the appropriateness of the blogger's choice of the cited source. (2) To save time. In writing blogs, time is usually of the essence and can be lost worrying about and acutally doing formatting, especially in writing html tags every time one wishes to cite a book. If the title of a work is not in quotations, then let it be understood as being the title of a book, or a magazine, or journal.

1b. two authors

Ex: William Flint Thrall and Addison Hibbard, A Handbook To Literature (1936), 150.

1c. more than two authors

Ex: John W. Doe, others,...

2. Multi-volume Book:

Author's Name, Volume number Title (helpful information about the source, year of publication), page number(s).

Ex 1: Francis Schaeffer, Art And The Bible, 2 Complete Works (1982), 395.

Ex 2: Francis Turretin, 1 Institutes of Elenctic Theology (Dennison, ed., Giger, tr., 1992), 182. (See also intructions for classical texts below.)

Ex3: Charles Hodge, 1 Systematic Theology (reprinted 1986), 41.

Note that the volume number comes before volume title. There are three reasons for this: (1) to signal immediately that reference is made to a multi-volume work; and (2) to distinguish between citations of multi-volume works and classical texts (q.v., below); (3) this method resembles that use by scripture (e.g., 2 Samuel 3:4).

3. Classical Texts

Author Name, Title of Work (helpful information about the source, year of publication if applicable or known), book number:chapter number (or other specific location), paragraph number

Ex 1: Augustine, Confessions (Jones, ed., Smith, tr., 1959), 3:4, para. 6.

Ex 2a: Plato, Republic, 517b.

Ex 2b: Plato, Republic, 517b, in Complete Works (John M. Cooper, ed., G.M.A. Grube, tr., 1997), 1135.

Ex3: Francis Turretin, Institutes of Elenctic Theology, Topic 3, Question 3, para. IX.

4. Print periodical

Author name, "Article Title", Volume number Journal Name Issue number (Month Year), referenced page number.

Ex: Kenneth Perszyk, "Molinism And The Consequence Argument: A Challenge," 20 Faith And Philosophy 2 (April 2003), 137.

Ex: Damon Linker, "Philosophy And Tyranny," First Things 119 (January 2002), 42.

Note: the page numbers refer only to the exact page(s) of the article being cited. The page of the journal that the article begins is ommited because the article can be found, once the journal is located, simply by referring to the journal's table of contents.

5. Online sources

5a. Blogs

Ex: Author/blogger's name( if known), Article title (if any), name of blog, date posted, http://www.url.com/org/edu, etc

Ex: Andrew McIntyre, "A Helpless Cry From a Vile Heart," Dead Men's Voices, 27 February 2005, http://www.deadmensvoices.blogspot.com.

5b. Personal homepage

Name of person, Type of page (if any), Month and Year cited, http://www.url.com etc.

Joe Smith, Homepage, May 2001, http://www.someplaceonline.com/~joesmith06.

5c. Online periodical articles

Author name, "Article Title", Periodical Name, Date, url.

Ex: Rich Lowry, "Soak The Rich," National Review Online, 11 March 2005, http://www.nationalreview.com/lowry/lowry200503110746.asp...

Why not just link to the site where the source is located? Quite simply, not all bloggers are equally adept at linking. And it can be time consuming to link. Our goal is the give readers the ability quickly and effectively to identify, locate and appraise sources for themselves. But at the same time, many of us who blog have limited time to blog, much less to spend creating links to sources we cite. At least, providing the url allows readers to cut and paste the url into their browsers. However, if one does successfully link to a web page, one may exclude an in-text citation of the url.

6. Television/Radio broadcast

6a. Television Series (including newsmagazines)

"Episode/Segment Name"(if known), Series Name, Network Name (or Station call sign and channel and city) Broadcast Date (if availiable or relelvant).

Ex: "Avengers", Bonanza, NBC.

Ex: "In The Grip of Fear," 48 Hours, CBS, 8 May 2003.

Ex. of TV News broadcast: Eyewitness News, KKTV-11, Colorado Springs, Co., 7 April 2001.

6b. Radio talkshow

Identification of segment (if applicable), Name of talk show, Station call sign, frequencey, city, date of broadcast (if known, available or relevant)

Ex1: Interview with Thomas Sowell (2d hour), Rush Limbaugh Show (Walter E. Williams, guest-hosting), KOA 850-AM, Denver, Co., 7 March 2005.

Ex2: Interview with Governor Owens (3d hour), Mike Rosen Show, KAO 850-AM, Denver, Co., 28 February 2005;

What we need is simply any iformation which would enable the reader to identify and (if possible) to locate the source and utilize it himself.

7. Recordings

Name of artist, "Item Name", Tape/CD/Album title, (Label and year of release, if they are known)

Ex: Rush, "Closer To The Heart," A Farewell to Kings, (Mercury Records 1977); or, even perhaps Rush, "Closer To The Heart."

8. Legislative Acts

Many of us bloggers like to discuss or share news about legislation, especially pending legislation. Citation should tell us something about the bill/amendment, its name or description of purpose, its senate and/or house bill/amendment number, and where readers can locate it to read it for themselves.

Ex: Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (Introduced in House), HR 658, at http://www.congress.gov/cgi-bin/query/z?c109:H.R.685:

Ex: Senate Amendment "To amend the Fair Labor Standards Act of 1938 to provide for an increase in the Federal minimum wage", S.AMDT.44, at http://www.congress.gov/cgi-bin/bdquery/z?d109:S.A.44:, which amends "A bill to amend title 11 of the United States Code, and for other purposes," S.256, at http://www.congress.gov/cgi-bin/bdquery/z?d109:SN00256:


9. The Bible

Book title Chapter.verse (Version)

Ex: 1 Corinthians 3.6-7 (NKJV, or UBS 4TH, if citation is to the Greek text).

10. UNKNOWNS (i.e., to the blogger)

If we do not know something about our source, we should indicate that in the citation. I recommend:

10a. ~auth or auth unk if the author is unknown
10b. ~wk or wk unk if the name of the work we wish to cite is unknown to us
10c. ~loc or loc unk if we do not know, in the source we have cited, the exact location we wish to cite
10d ~ed or ed unk if the editor is unknown
10e ~tr or tr unk if the translator is unknown
10f ~date or date unk if the date is unknown
10g ~url or url unk if the url is unknown

Note that, for our purposes, "unknown" does not mean that no one knows the item. It means only that the blogger does not know, or cannot presently recall, the item. Note also that, whatever we know or do not know about a source, we should provide as much information about a source as we can.

SUBSEQUENT CITATIONS

Once a source has been cited in a citation sentence, subsequent citations should be as brief as possible. Use of words like "ibid" (or "id", for lawyers) should be avoided: the reader has to scroll back up on the page to see what the "ibid" is referring to. And we are trying to make things easier for the reader. Therefore subsequent citations should include Author last name, Abbreviated title, page number. If for example, one has cited Francis Schaeffer, The God Who Is There (1969), 13-22, all subsequent citations could appear as: Schaeffer, God, 55. If, for example, one has already cited Andrew McIntyre, "A Helpless Cry From a Vile Heart," Dead Men's Voices, 27 February 2005, http://www.deadmensvoices.blogspot.com/, all subsequent citations should appear as McIntyre, "Helpless Cry".

METHOD OF CITATION

Now that we have something of a system of source citations, how, exactly do we cite our sources? Ought we to try to use footnotes? Citations should be in-text citation sentences (for initial citations) or clauses (for subsequent citations), which follow immediately after the relevant sentence in your blog. The reason is a footnote is cumbersome as a citation apparatus. This is especially the case when one is reading a web page. One may like to know immediately what source an author is citing; having to scroll down to the end of a page, or wait until reaching the end, is not very convenient. True, the blogger could link to the footnote so that readers have only to click on the link in order to read the footnote. But our interest as bloggers is to utilize a method of citation that is convenient for both blogger and reader, especially in terms of time spent writing a web page which would include source citations and in terms of reading such pages and being able immediately to identify, locate and appraise sources.

SIGNALS IN BLOG CITATION

Signals are words or terms that give your reader additional information about the sources you are citing. Signals tell the reader about the type and degree of support your sources provide. For example, some sources provide indirect support for an assertion. Some sources provide general background rather than direct support for a specific proposition.

Signals are not always necessary. You do not need a signal if your source directly supports the preceding text, or to identify the source of a direct quotation.

You should use a signal in all other situations.

The choice of signal depends entirely on context. What are you hoping to convey to the reader? The choice of signal is not related to whether your citation is initial or subsequent (i.e., full or abbreviated). The frequency with which you use signals will vary from one project to the next, according to the type of support you find in a particular source.

Signals

E.g.: indicates that the source is an example from a number of sources that stand for the same proposition or argument, or that agree to the facts as you have stated them.

See: means this source implicitly supports your position or argument, or agrees with the facts as you have stated them. What you are conveying to the reader is that your source doesn’t say anything about the subject you are discussing and doesn’t directly say the same thing that you are saying, but clearly supports your argument, or the proposition you have just stated, or agrees with the facts as you have stated them.

See, e.g.: means much the same thing as "see" but indicates that the source(s) you cite is one of many which support your position.

Cf.: means this source supports your argument, or the proposition you have just stated, by analogy. What you are conveying to the reader is that your source provides an analogy that supports your position in some way (you may need to offer a parenthetical explanation of how).

See also: means this source [or these sources] also stands for the proposition you have just stated or the argument you are making, or agrees with the facts as you have stated them. It is typically used after you have cited one or more directly supporting sources.

See generally: means this authority provides helpful background information related to your argument.

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.