The orthodox Christian has paid a very heavy price, both in the defense and communication of the gospel, for his failure to think and act as an educated person understanding and at war with the uniformity of our modern culture. (Francis Schaeffer, The God Who Is There, 1 Complete Works, 12)

My friend and colleague, Lee Johnson has done some chronicling of the Federal Vision debate. (See, e.g., "Westminster LC Q.68 and Federal Vision", Friday, Two-Edged Sword, 22 April 2005, http://twoedgedsword.blogspot.com ) I have appreciated this work on his part, but I wonder if there isn't perhaps (possibly) a bigger concern than Federal Vision; I mean the so-called emergent church.

I believe the basis for concern is this. Whether Reformed theologians agree or disagree with the assertions of Federal Vision thinkers like Mark Horne, there is at least this much in common: the argument is taking place on the same philosophical and theological footing. The double footing has, among others, at least two elements: the laws of logic are universal; and the Bible is the source of true theology. That is to say, both sides agree that whatever the resolution, such resolution will be on the basis of what the Scriptures teach. Indeed, the argument is precisely about what the Scriptures teach. This is not the case with the emergent church, which, according to at least one of the movement's many websites, has no "...desire...to rescue people from the grips of postmodernism" (See "Our Mission," The Next Wave: The Church and Culture, Homepage, April 2005, http://www.next-wave.org/credo.html ) Like neo-orthodoxy in the last century, and the Old Liberalism of the 19th century, the emergent movement is willing to make some peace with, if not entirely embrace, the philosophical spirit of the age, which at present ispostmodernism.

Postmodernism has at least three features which serve to make it incompatible with Christianity. First,it rejects the idea of objective knowledge or that we can know anything with certainty. Postmodernism has no confidence, such as is found (without sufficient grounds, of course) in modernism, that we can know things with certainty. Knowledge, on this view, is uncertain, subjective, relative, and tentative. Our knowledge is not an accurate representation of reality. Second "postmodernism views logic as being at best only true for a given individual, community or certain communities or 'interpretative community[ies].' In other words, logic is not universally valid or applicable; it is relative only to a given context--person(s), place, or time--or only true for certain individuals or societies or cultures. For example, it is generally true for individuals or communities or societies that have been influenced by Western or Aristotelian thinking. Thus, Westerners should not impose their modality of thinking on Easterners or Eastern cultures or on anyone else who does not grant logic's validity." (Craig S. Hawkins, "The Bible, Logic, and the Postmodern Predicament", Apologetics Information Ministry, Arpil 2005, http://www.apologeticsinfo.org/papers/logicpostmodern.html ) Third, truth is relative. This doesn't mean that there is no truth at all, only that there is no absolute or universal or universally true truth. None of this, of course, prevents postmodernists from making knowledge claims.

The trouble with embracing postmodernism is that it, like the modernism which preceded it, is a worldview, a somewhat eclectic looking worldview, but a worldview nonetheless. And Christianity is a worldview. One of the first things I learned about the Reformed expression of the Christian faith is that it rejects the notion that Christianity can be embraced alongside another worldview. Sooner or later, those who have embraced Christianity and some other view, or their descendents, will have to make a choice. When this choice is made it will be a choice for either orthodox Christianity (as expressed by the seven ecumenical councils), or some bastardized version of it, or they will embrace entirely the second worldview, thus rejecting orthodox Christianity. As one author, whose name escapes me, put it, Christianity and all other worldviews, at some point, are moving away from each other. When the boat starts to pull away from the shore one can no longer stand with one foot on the boat and one foot on the shore. One must choose.

Late in the last century, Francis Shaeffer outlined how the "new" theology amounted to nothing more than existentialism dressed up in orthodox language. Readers of his The God Who Is There will remember what he called the "line of despair." He utilized this line to show the progress of existentialist thinking from philosophy through art, then music, the general culture, and finally (of course) theology. (See Schaeffer, The God Who Is There, 1 Complete Works, 8.)

A similar outline could be given of the travail of postmodern thought from philosophy, beginning in the 1960s or thereabouts, throught art, music, general culture, and now theology. But I shant do that here. I don't believe it necessary for my present purposes, which is simply to explain why I think something like the emergent church movement may be of more concern than something like the Federal Vision controversy.

A problem besets one who would discuss the emergent church. That problem is precisely that it is postmodern in flavor. Those involved in the movement are as diverse as any group can be whose members claim to have embraced postmodernism. This means that some churches in the movement may be truly orthodox, but have simply adopted more traditional (i.e., liturgical) worship styles. I have no difficulty with this: I grew up with liturgical worship, first as a Roman Catholic, then as an Anglican. Some may embrace certain practices, such as "centering prayer", which are closely associated with monasticism. (I have mixed feelings about this. On one hand, as a former would-be monk I do not reject monasticism out of hand. On the other, it depends on the kind of so-called centering prayer we would be talking about.) Others seek to return to a model of church organization and form which would resemble the "early church". They want their leaders to be possessed of true spiritual authority and not be merely CEOs, managers, executives, administrators and the like; they want holy men. Who could argue with that? Of course, wanting that "early church" model and knowing what that early church model really looked like are two different things. (This is also problematic when you factor in postmodernism's denial, in general, of the possibility of certainty with respect to knowledge claims. When knowledge claims are merely perspective-driven constructs, what is the early church except the early church as it is constructed by the postmodern mind seeking the early church?)

Some of what emergents talk about is not foreign to me. Indeed, I well remember how much, in my young Christian life, discussions with other Christians my age were dominated by "The early church didn't do this" and "The early church didn't do that" and so forth. I well remember lecturing an episcopal priest on how there were no bishops in the early church. The word translated bishop was also used by Paul in Ephesians in such a way as to make clear that "pastor", "elder", and "bishop" are equivalent terms, I instructed him. Therefore, I informed this priest, I did not believe in the episcopacy. He replied simply that it depended on how you looked at the church and went on his way. Fifteen years later I know that he is right. If, as Roman Catholics and Eastern Orthodox believe, the church is one and visible, then the church is presbyterian in polity: the bishops are the elders of that one-and-visible church. If, as others believe, the church is one-and-invisible, with only individual congregations being visible, then the elders of the local congregation are the elders of the church. (I happen to hold to the latter view.)

Another concern of emergents is the centrality of the preaching personality. Note I did not say the preacher. Emergents who are truly orthodox, or at least want to be but find their postmodernism getting in the way, understand that the Scriptures must be proclaimed. But their concern, and I think it a valid one, is that people flock to hear a preacher preach and not the Scriptures proclaimed.

So, I can see some of the concerns of emergent thought. And everything about them isn't bad. However, postmodernist Christians have at least two problems. Postmodernist Christians claim to disdain system (just like existentialists). They want to embrace a relationship with Jesus, and want to commend such a relationship to others. They do not want to embrace a system; and they do not want to commend a system to others. Of course, in embracing a relationship with the Lord Jesus Christ, they are embracing a system whether they want to or not; and they may as well accept it. Surely, they are desirous of a risen Lord Jesus, not the mythical Jesus of neo-orthodoxy. If such is the case, and if they do in fact have this relationship, then the universe is such as to make possible this relationship. In other words: if they have a relatinship with Jesus Christ, then it is possible for a man to come back to life after he has died--even after he has died a horrific death. This means that miracles are possible. (Note the logic: if a thing has happened then it is possible.) Thus, embracing Jesus Christ--a Jesus Christ risen from the dead--one embraces a metaphysical and epistemoligical system. For not only is it possible for one to have a realtionship with One who was once dead and now lives (metaphysics); it is possible to have knowledge of this Person. (St. John says that he wrote his gospel so that we could know that Jesus is the Christ.)

Also, postmodernist Christians complain that many who criticize them have just gotten them wrong. When one writes a criticism of the movement one can expect some of them to ask, "What are they reading? That's not us." Unfortunately, they have embraced a (non?) system that should really make it difficult for them to complain if their writings are misinterpreted. There is nothing to interpret. On a postmodern view, there is no objective text, nothing that has a meaning. The text does not control the reader; quite the other way around in fact. The reader controls the text. So when these postmodernist Christians complain about being mis-read, one just has to wonder what are the grounds for the complain. After all, that's just happens to be how we read them! I do not think they can take the position they seem to take with respect to postmodernism and at the same complain about being read wrong.

Of course, as I've already mentioned, some of them are not truly postmodern. They have simply decided to find a way to give postmodernists what they want, or not give them what they do not want. If postmodernists don't want a system, they'll not be offered one. If postmodernists are sceptical of exclusive claims, they won't hear any. If postmodernists do not believe in certainty, they'll not be asked to have any. If a postmodernist believes that the truth about reality is forever hidden from us, and all we can do, therefore, is tell stories, then narrative--and lots of it, including narrative theology (or, a/theology)--is what he will get. Never mind in all this that repentance calls us to surrender our worldview and embrace Christ--and the worldview that He has.

Now, none of this means that every emergent has jettisoned orthodoxy. But there are some in the movement who truly do have a non-orthodox theology and have, just like the neo-orthodox before them, adapted orthodox language to the postmodern intellectual milieu. Let me offer a few tid-bits of what I'm talking about.

Do you believe that Jesus died a substitutionary, propitiatory, atoning death for your sins? Well, according to at least one emergent theologian, you have fallen prey to the literalizing of Scripture. Take this example of an emergent theology of the cross:

"Then there's the cross as the once and for all sacrifice for sin. If we literalize that language, as much of conventional Christianity has done, the only way God can forgive sins is if adequate sacrifice is offered: Somebody has got to be punished, and that person is Jesus. Also only those people who know and believe in that story can be saved. Thus, literalizing that language is a slur on the character of God. If you see Jesus' death as part of the divine plan, as part of the will of God, that suggests that God required the suffering of this immeasurably great man. It is never the will of God that an innocent person be crucified, and to suggest that is to suggest something horrible about God." (Marcus Borg*, "What is the significance of the cross and the crucifixion of Jesus Christ?" April 2005, http://www.explorefaith.org/questions/cross.html)

Those of us who, with virtually all Christians in all ages, believe that Jesus died for sins are guilty of slurring "the character of God." And how dare we suggest that God requires the suffering of the innocent for the sins of the guilty. (Never mind that under the Old Testmant sacrificial system, innocent animals suffered for guilty humans all the time.)

If we were to handle the language correctly our problem would disappear, or as Borg puts it:

"If, on the other hand, we understand the language of Jesus’s being the sacrifice for sin as a post-Easter interpretation of his death that emerges within the early Christian community, we can then see that, metaphorically, it's a proclamation of radical grace. The connection is this: If Jesus is the once and for all sacrifice for sin, understood metaphorically now, it means that God has already taken care of whatever it is that we think separates us from God. It means that God accepts us just as we are and that the Christian life is not about getting right with God. God's already taken care of that. The Christian life becomes about something else, namely, living within this framework of radical trust in God and relationship to God that makes possible our transformation, and, ideally and ultimately, the transformation of the world." (Borg)

Ah, words worthy of any neo-orthdox theologian of the last century--or even an Old Liberal of the 19th. (Truly as Schaeffer's students at Farel House used to say, "The new theology is the old theology.")

Do you believe that the eternal divine nature, precisely because of being eternal, is unchanging? Here is a sampling of an emergent theologian on whether God changes over time:

"Recent scientific theories, such as evolution and quantum physics, for instance, have provided a rich source of metaphorical speculation about God’s nature. Such thought is exciting to me, because it proposes a God whose characteristic creativity implies constant change, the exercise and expression of the same freedom given to us. When you stop and think about it, it makes sense that the very evolution of human history and its consequences for all of creation call forth from God new responses all the time. It’s an interactive and emergent view." (Rev. Dr. Katherine M. Lehmen,* "Does God make mistakes?" April 2005, http://www.explorefaith.org/questions/cross.html)

and

"Yet even in this view, it’s not that God makes mistakes, but that God has new ideas and takes new actions as God wills. We outgrow earlier notions of God, and scripture records some of that evolution. My own notions about God have been transformed over time, and I hope insistent inspiration will continue to stretch me. Does God outgrow previous notions about us? Another way to ask that is to ask if we can surprise God. Freedom seems to require that astonishing possibility." (Lehmen)

Do you believe that Jesus Christ rose bodily and physically from the dead? You need not do so in order to be a Christian--at least according to some emergent theolgians:

"...I don’t think that to be a Christian we have to believe that Christ literally, bodily rose from the dead and that he literally, bodily ascended into heaven. Yet I do believe that these words are our best attempt to give expression to an experience which was true to the followers of Jesus in his time, and is still true to those of us who engage with Jesus in heart, mind and spirit still today. What Jesus’ rising from the dead means to me is this: That life is eternal, and that we are a part of that eternal life even now, in this life we are living. That we live in eternal life was true of us before we were born; it is true while we are living here and now; and it will be true after we have died. We live always in the embrace of God’s eternity." (Rev. Margaret B. Gunness*, "Do I have to believe that Christ literally rose from the dead in order to be a Christian?", at http://www.explorefaith.org/christ.html

"The most Christ-like professor I ever had once turned to our seminary class and asked us a question with an intensity that made us know he was serious: "What if they proved without a shadow of a doubt that Jesus of Nazareth never lived! What would that do to your faith?"
He stared fiercely at us. There was a long, awkward silence. Then he said, "I can tell you what it would do to my faith. It would not change it one bit. I would believe in the myth of Jesus. It's the best story going!"
(Lowell Grisham*, at http://www.explorefaith.org/christ.html

This stream of emergent thought is obviously something to be concerned about because it is precisely the sort of thinking postmodernism can make seem attractive.

We could say of all this that postmodernism is a passing fad and we should not devote much time and attention to it. In many ways, it's something old that's just been re-packaged...or re-released. But every spirit of every age is and will be a passing fad, or the re-release of an older fad. And when we are dealing with people who believe that the words coming out of our mouths are merely constructs used to exercise power over them, it may make more of a difference right now than whether the Federal Vision implies a works-based salvation. I simply suggest that, at present, it may make more of a difference whether the people in our pews even believe in real truth than whether they believe in the Federal Vision. Postmoderns in our pews will not hear an exposition/demonstration of Federal Vision's falsity; they will hear only an attempt to instute a "regime of truth" over them.

Of course, I'm willing to concede that any concerns about the emergent church/postmodernist Christianity may be much ado about nothing. But I haven't noticed as much discussion of it as I might have hoped for. Certainly it doesn't seem to be arousing as much of a stir as neo-orthodoxy; and I think it should be. It's just as dangerous. (Could be I've been looking in all the wrong places.)

Finally, don't think I don't know how much disdain you have for the term postmodernism, Dr Powell.


===========================================================================
(To sample some emergent thought see http://www.emergentvillage.com/Site/Explore/EmergingStories/index.htm and the article by Bob Hyatt, "Just who is emergent, anyway?",10 April 2005, The Next Wave: Church and Culture, http://www.the-next-wave.org/ with the comments that follow.)

*I refer to these theologians as emergent theologians primarily because the writings I am citing here are posted at a website (namely, explorefaith.org) that is listed in answer to the question, "What is the Emergent Church?" at next-wave.org.

Heard a caller to the Rush Limbaugh Show (3rd hour, 4-27-05) disagree with Rush's assertion earlier in the program (1st hour) that there is no imposition of religion in our society. This caller's evidence that there is, in fact, such an imposition going on was this: that he lives in an area that has outlawed the sale of alcoholic beverages on Sunday. This, which if anything, may be an imposition of morality, is supposedly a prima facie case! For this caller, morality is religion. So if a moral position is embodied in the law, this is the imposition of religion.

When Limbaugh explained to this caller that perhaps he could work to have the council members replaced who voted for this measure, or at least work to have the measure repealed, the caller asked, "Don't you think the Christian right will just change that?"

Just change it? How? All anyone can do is vote. Just like this guy. When this guy is out-voted, the Christian right has imposed its religion on him. (He probably calls it democracy when the Christian right is out-voted. He probably doesn't think that the Secular Humanist religion has been imposed on anyone when the Christian right has been out-voted.) Limbaugh did explain to the man that, on this view, any legislative act constitutes an imposition, rather than the result of the democratic process at work.

But what concerns me is how people think some religion is being imposed on them if a moral position (which they identify as being held by the "religious right") becomes law. Let's just ask which religion is being imposed by this religious right. Assume for just a moment that every member of this religious right is some stripe of orthodox (as opposed to theologically liberal) Christian, whether Catholic, Protestant, Reformed, charismatic, or pentecostal. Ostensibly, then, the religion being imposed is orthodox Christianity, right?

Wrong!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Orthodox Christianity is, minimally, summed up by the seven "ecumenical councils" of the Church. Of these, let us just make reliance upon the Nicene Creed. (The following is a literal translation of the Greek text of the Constantinopolitan form , from the Catholic Encyclopedia [online at http://www.newadvent.org/cathen/11049a.htm]. The brackets indicate the words altered or added in the Western liturgical form in present use.)

We believe in one God, the Father Almighty, maker of heaven and earth, and of all things visible and invisible. And in one Lord Jesus Christ, the only begotten Son of God, and born of the Father before all ages. (God of God) light of light, true God of true God. Begotten not made, consubstantial to the Father, by whom all things were made. Who for us men and for our salvation came down from heaven. And was incarnate of the Holy Ghost and of the Virgin Mary and was made man; was crucified also for us under Pontius Pilate, suffered and was buried; and the third day rose again according to the Scriptures. And ascended into heaven, sits at the right hand of the Father, and shall come again with glory to judge the living and the dead, of whose Kingdom there shall be no end. And in the Holy Ghost, the Lord and Giver of life, who proceeds from the Father (and the Son), who together with the Father and the Son is to be adored and glorified, who spoke by the Prophets. And one holy, catholic, and apostolic Church. We confess one baptism for the remission of sins. And we look for the resurrection of the dead and the life of the world to come. Amen."

Here, in the U.S., "orthodoxy" isn't talked about as much as Christian "fundamentalism". What is this so-called Christian fundamentalism? Well, it is summed up in the so-called Five Fundamentals:

1. Inerrancy of the Scripture

2. The virgin birth and deity of Jesus Christ

3. The substitutionary atonement

4. The bodily resurrection of Jesus Christ

5. The validity of miracles or the imminent second coming of Jesus Christ

This is the religious right. Now, I am both a drinker and an orthodox Christian. Please, someone, tell me how not being allowed to buy booze on Sunday constitutes being required to believe either something like the Nicene Creed or the Five Fundamentals. Please explain how, if it were to happen, not being allowed to have an abortion for just any reason would constitute being required to believe either the Nicene Creed or the Five Fundamentals.

Of course, what they'll tell us is that when we want our position on abortion, for example, to be the law of the land that is an imposition of religion because our view of abortion is rooted in our religion. Of course, it escapes their notice that their own view of abortion is rooted in their religion, the religion of secular humanism. Now the debate degenerates into nothing but name calling:

"You're religious!"
"No, you are."
"No, you are.!"
No, you are."
"No, you are."

And so forth.

I haven't blogged for a while because I was sufferring "internet exhaustion" after the whole Terri Schiavo affair. And then I was joining my Roman Catholic brethren in prayer for the late Pope. And then I was eagerly anticipating the results of the conclave...

Well, I for one am happy about Cardinal Ratzinger's election to the papacy. For one thing, the media seem not to like him. That bodes well in my mind. For another thing, he is theologically conservative. No, he's not Reformed, but you can't have everything...even in a Pope.

Of course, since, unlike the Pope, I am Reformed, one may wonder why I even care. The reason I care is that I consider myself not just "reformed"; that is to have a modififier without a thing modified. I am not a "reformed" Christian; that would mean that I was once a Christian and have recovered. No, I am a Reformed Catholic. For the better part of 12 years, from 1978 to 1990, Pope John Paul II was my pope. And I was fairly proud of him. So I am very pleased that one of his disciples has succeeded him.

This alone is not why I care. The big reason I care is that I still feel a certain afinity for the Roman Catholic Church. Perhaps this is because my experience as a Roman Catholic was not the same as that had by other former Catholics.

As difficult as it may be for some Protestants to believe, I first heard the gospel of the Lord Jesus Christ in a Roman Catholic Church. I took catechism in St. John's Roman Catholic Church in San Marcos, Texas. (My catechism teacher was Sister Maria. And I'm sure that I was not her favorite student.) And in that church (or Sister Maria's class anyway) catechism was all about Jesus. I learned that he was God and the Son of God, which I absolutely did not understand (being in elementary school.) I learned that he became man and lived and died for me. I learned also that he rose from the dead three days after he died. I learned that I was not a good person; that is why Jesus died for me. And I needed to believe in him in order to go to heaven. I learned that Jesus expected me to obey his Father, and my parents, and the government and all other authorities (including, of course, the Church). In catechism I was not taught very much about Mary, though I was taught to pray, on certain occasions, "The Hail Mary." (And I still object to a football pass being referred to as a "hail Mary" pass. To me it is disrespectful. What if such a pass were called a "hail Calvin" pass? After all Calvin trusted in the sovereignty of God, right? Does not such a pass connote trusting in something like either fate, or divine sovereignty?). In my childhood, I never, when I prayed, offered a single prayer to any saint (with the exception of the aforementioned occasional prayer to Mary); I prayed either to the Father or to the Son. (I did not understand the Holy Spirit.)

One of my fondest recollections of my childhood, is the huge (and I do mean huge) mosaic of the risen Lord Jesus behind the altar. St. John's has a high vaulted ceiling. It must be twenty feet high. The mural starts at about 8 feet and goes up just about to the ceiling. There he is, facing the congregation. The holes in his hands and feet are visible, and he seems to be reaching out to the congregation. To the left and the right of the altar are smaller statues (only a few feet high) of Joseph and Mary. At St. John's, this mural of Jesus was not easy to ignore. Indeed, it demanded your attention.

In my teens, I lost whatever sort of faith I had as a child. At one point I became an atheist. But I was done being an atheist by the time I joined the Army in 1984. When I enlisted I declared Roman Catholic as my religious preference. In 1988 when I finally came to faith in the Lord Jesus Christ I believed myself to have become a real Roman Catholic. The things I believed at that time were the things stipulated in the Nicene Creed, a creed I learned as a child in the RCC and the first creed that I truly believed when, in 1988, I professed faith in the Lord Jesus Christ. And I had no doubts in my mind that I truly had become a Christian. And the morality that I adopted--overnight--was the morality of the Roman Catholic Church. Overnight, I was pro-life, anti-euthanasia, sexually chaste. The Church's teachings on abortion, life and death, sexual morality, and contraception were the moral teahcings I adopted; and they still are. When I cried out to the risen Lord to save me, I cried out as a Roman Catholic; and I knew what was expected of me, morally, as a Roman Catholic, and had resolved, so far as God gave me strength, to obey the moral teachings of the Church.

I shant go here into my reasons for leaving the Roman Catholic Church, except to say that they are, for the most part, just the sort of reasons one can expect a Calvinist (I still prefer the term Augustinian) to have.

Unlike the RCC, I do truly believe that humans are totally depraved, a state which extends to ratiocination. This condition requires an unearned, even unsought for act of God to save the sinner; in short I believe in unconditinal election. I believe that although the sacrifice of Jesus Christ can certainly atone for all sins committed by all people, since the saved are elected to that status, Christ's death atones only for those elect. I believe that election, being an act of God's free, unmerited grace, is completely certain; the elected sinner will by faith turn to God in Jesus Christ for his salvation. I further believe that the sinner, being elected and saved by almighty God himself, shall persevere to the end; he cannot lose that salvation which God has given him (unless, of course, we will assert that God takes back what he has given as a gift). The church of my childhood, regrettably, believes none of these things--despite the great comfort they offer!

And of course, I believe in justification by grace alone through faith alone in Christ alone and have done from the first moment of my Christian life. On an evening in September 1988 I (literally) looked up to the heavens and cried out to the Lord Jesus: "Lord Jesus Christ, I now know that you are the Son of God. Have mercy on me, forgive my sins, save me and change my life." I don't think I bothered to say an "Amen". And I believed at that very moment that Jesus had heard me and saved me. I did not know it then, but what I believed was that I had been justified by faith. The RCC, last time I checked, still anathematizes such people.

There are other reasons for not returning. I reject transubstantiation, as well as the notion that the mass recapitulates the sacrifice of Christ. I reject the notion of prayers offered to saints. I strongly suspect that Peter was never in Rome; and doubt that he was the first Bishop of Rome. I do not find it easy to believe that Mary was protected by the Holy Spirit from all sin. I do not claim to know how major or minor these things are. It suffices for me that I believe these things to be false.

Of course, my Catholic friends and relatives would ask me if I am not just a little arrogant. After all, I am only one person. For one person to argue against thousands of Catholic theologians and thousands of years of tradition is a bit presumptuous. And if I tell them that I believe that the Scriptures trump tradition, they will remind me that we have those Scriptures by the very same tradition a large part of which I wish to deny. Is it not, they might ask, more humble simply to accept the teachings of a thousand scholars and over a thousand years of tradition (most of which is accepted by both Roman Catholics and the Orthodox) even if some of it may be mistaken than to assert that a relatively small band of zealots is right and the vast majority of Christians are wrong? After all, they would remind me, we are saved by grace, not by purity of doctrine. I will admit that it is this sort of argument that I find more difficult to overcome than all the arguments the Romans and Reformed have about salvation by faith alone, predestination, the Real Presence and so forth. In truth, I would rather be humble than right all the time, about everything. It does take some doing, at times, to believe that the Church started going wrong almost right after the apostolic fathers died and remained in error until Martin Luther came along. (For example: the liturgies of both East and West were relatively fixed within the first couple hundred years of church history, as was the custom of referring to Mary as Mother of God--and offering prayers to her.)
Perhaps we Reformed (Catholics?) are in need of some humility. Well then, may God give it to us.

Whatever my present feellings and beliefs about Rome, it still remains the fact that the Catholic church was my spiritual mother. I learned the basics of the Christian faith and most of my morality at her feet. Although I feel that she has disowned me, I still care about her and pray for her. So I care who her Pope is. I look forward to seeing good things from Benedict XVI, especially as a co-belligerent in the fight against "the tyranny of relativism". Of course, I doubt that the RCC will embrace Reformation thought during his pontificate. But, like I said above: you can't have everything--even in a Pope.

First: Her husband is a scumbag; I hope that Terry doesn't know that. I fear that she does. Poor woman. When Michael Schiavo filed that malpractice suit, he didn't mention Terri's wish to die.

Second: If starving and dehydrating people to death is so compassionate, then it is just impossible to see why Democrats spend so much time worrying about all the starving children, and, especially, accusing Republicans of wanting to starve children and the elderly. It is difficult to see how liberals complain that the U.S. sanctions against Iraq killed children by starving them to death. Never again, after this, ought Democrats to accuse Repuplicans of trying to starve children and old people as if it's a bad thing.

Three: I think we really need to know what happened the night before, or in the morning, Terri was found unconscious in her home. There was a violent argument the night before, and at least one person has asserted that she was planning to divorce her scumbag husband. (Interview with Barbara Weller [Schindlers' attorney](1st hour), Dennis Prager Show, (Mark Taylor, guest hosting), 21 March 2005.) I heard on the radio (either on Bill Bennet's show, Morning In America or Laura Ingraham) that the paramedics on the scene called the police to report a homicide; but I haven't had a moment to confirm this.

Four: Once again, Democrats demonstrate that for them, logic is simple: If conservatives are for it, then Democrats are against it. It seems to me that their goal has nothing to do with Terri, or right to die, or the privacy of the marital relationship. It's all about not allowing any kind, type, manner, fashion, or species of victory to the "religious right". The people trying to save Terri's life are--let's face it--those "pro-life fanatics" and no way are Democrats going to allow them a victory in this, or any other life vs. death, matter; and if Terri has to die, well, sacrifices must be made. It's right to die (i.e., culture of death) vs. right to life (i.e., culture of life).

Five: The Democrats' fellow travellers in the media insist on referring to Terri as being in a vegetative state, which she isn't. (Barbara Weller, "Last Visit Narrative," Fight4Terri, 20 March 2005.) This assistance is no doubt behind the polls which show that most Americans favor the removal of the feeding tube.

Six: Democrats love it when the fed usurps states' rights--until now. (You know, like when the Supreme Court usurps state authority in telling states that they cannot execute minors who are found guilty of capital crimes, or that they cannot prohibit abortion, or sodomy.) Suddenly, they are concerned out states' rights! As if these people really believe that states' rights trump the life of a single human being. Actually, I agree with Rush Limbaugh: what really has the Dems angry is having a court decision questioned; they believe in "government by judiciary." (Rush Limbaugh (2nd hour), 21 March 2005.) Democrats believe in judicial supremacy. (That's why they need to maintain control of judicial appointments.) The idea of having Congress questioning a court is anathema to them. (As long as they control the courts, of course.)

Seven: Democrats, who normally align with feminists, are concerned about the right of Michael Schiavo, a husband who has authority over his wife's life, to kill his wife.

Eight: Democrats are interested in everything about this matter--state's rights, sanctity of marriage, husband's authority, the supposed hypocrisy of Republicans, etc--except Terri Schiavo.

Nine: Michael Schiavo is going to get away with killing his wife, with the help of the judiciary. He has, if some nurses are to be believed, wanted her dead for years; and he is going to have his way. Thanks to the courts, of course.

Ten: I have been reading Walter Prescott Webb, The Texas Rangers, a history of the combination law enforcement/military organization up to the 1930s. Men like them would know how to save Terri from her husband and they wouldn't trouble the courts; and few would have what it would take to stop them, certainly not a black-robed, prophet-playing, egghead.

Eleven: Some--and we know where they stand--see what is happening to Terri as allowing her to die, not killing her. Some of these same people (James Carville?), I would bet money, have said that we (i.e., the U.S.) killed children in Iraq. No, we didn't actually kill them: our policies did; we allowed them to die. A policy is killing Terri. Years ago, I owned some property down in Texas. One of my tenants turned part of my land into his own person landfill. The county health department notified me that I was soon to be charged with creating a health hazard. When I informed the health department that, although I would see to it that the "landfill" was cleared, I did not believe that I had created the hazard since I never, at any time, in any way, gave my permission for any of my tenants to create a landfill and it was done without my knowledge, I was informed that I was liable because the law stipulated that one "shall not suffer, permit or allow" a health hazard to be created or to continue to exist on his property. "Suffer, permit or allow" was tantamount to creating the hazard myself! I do not see how anyone can not, logically, see that "sufferring, permitting and allowing" (in fact, requiring by judicial order) that Terri Schiavo be deprived of food and water until she dies is killing her. What, after all, is the difference between, say, telling a guilty man, "You shall be hanged from the neck until you are dead," and telling him, "You shall be deprived of food and water until you are dead"? Both are death sentences.

Twelve: It would be nice to know what was the "convincing evidence" that Michael Schiavo gave to Judge Greer, which made Greer confident about Terri's desire to die. I hope when this is all over, some journalist writes the story of how Michael Schiavo finally succeeded in using the courts to get rid of "the bitch". In fact, that journalist could title his book, All The Scumbag's Judges: When and How "The Bitch" Finally Died. (The subtitle is a reference to an assertion by CARLA SAUER IYER, R.N.,, in her sworn affidavit, that Michael wondered aloud, at least once, when "the bitch" would finally die.)

Finally: Nothing in this blog should be understood as communicating that I believe that Michael is, as of yet, actually guilty of anything. HOWEVER, some of the claims in many of the affadavits do lead me to believe that the matter should be heard de novo. (They also lead me to question either Judge Greer's ability as a finder of fact, or her legal counsels' ability.) I do not take them at face value, but they have not so much as been examined and cross-examined in a trial. This much at least should take place. And if some of the assertions about Michael are discovered to be in fact true, then the man ought to go to jail. It is his obstruction of every move that her parents make that have me angry with him. In the same shoes, and even with a living will and durable power of attorney, I would grant my in-laws as many second and third opinions as they could pay for. And I wouldn't try to keep them from having a day in court. We would, after all, be talking about their beloved daughter!

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.

****************************************************
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!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!