Sunday, June 30, 2002

Further Reflections on Custom and Practice

Discriminations has several posts developing an argument that "adverse possession" should not apply to Constitutional rights. In other words, unconstitutional practices of long standing usage should not be entitled to deference. Something unconstitutional ab initio does not become constitutional over time. The author writes:

In "One Nation Under God," its similar editorial, the New York Times made exactly the same point (without attribution to Brennan). "After millions of repetitions over the years," opined the NYT, "the phrase ["under God"] has become part of the backdrop of American life, just like the words 'In God We Trust' on our coins and 'God bless America' uttered by presidents at the end of important speeches." Nevertheless, the NYT admitted that "We wish the words had not been added back in 1954."

That's a bit lame. It says, in effect, that the Congressional action adding "under God" to the Pledge might well have been unconstitutional when it was done in 1954, and perhaps for a year or two (or three? or four?) afterwards, but now that we're used to it it's O.K. Actually, it's worse than lame. We were also used to racial segregation, after all, as critics of Brown v. Board of Education (also 1954) have long pointed out. Have the WP and the NYT developed a new appreciation for those critics?

One of the few examples in the law of two wrongs making a right is trespass. If trespass is allowed to occur long enough, the trespasser can take adverse possession of the property he invades. Reasonable people can disagree over whether a "living Constitution" (as compared to what? A dead one?) provides the best protection of our rights, but everyone should reject the principle that trampling on Constitutional rights long enough gives adverse possession of them to the trespassers.


With all due respect, while this argument is probably quite appealing in certain quarters - anywhere Chablis is sipped while casting aspersions on the mindless followers of tradition (who tend to drink beer or gin) - it fails to take into account either human nature or constitutional law.

First, there is a psychological difference between removing 'under God' from the Pledge and not including those words in the first place. People as a matter of individual and social psychology easily distinguish between losing something and not getting something. People irrationally overvalue losses. [Some economists have concluded that investors typically consider the loss of $1 dollar twice as painful as the pleasure received from a $1 gain. ] For example, if someone asked me whether I would contribute to an inititiative to include the phrase 'under God' in the Pledge, I probably wouldn't contribute. However, I probably would contribute a much larger amount to a drive to amend the Constitution in order to keep it in.

Usage creates expectation. The elimination of that usage - even if it causes a return to the status quo ante - is going to be seen as a loss of something. In the case of Pledge, it is also going to be seen as state action against the God-believing majority of Americans, not simply an endorsement of neutrality. As Oliver Wendell Holmes, Jr. wrote - before he became Justice Holmes - in the Common Law, even a dog distinguishes between being kicked and being stepped on. The majority sees the Pledge decision as hostile state action, and they're probably right if this post from the Brothers Judd Blog which links to a New York Times article is correct.

This psychological observation informs various Constitutional decision. In Board of Education v. Pico (1982)102 S.Ct. 2799,73 L.Ed.2d 435, 4 Ed. Law Rep. 1013, a splintered majority held that a school board could not remove books from a school library for ideological reasons, although it couldn't be forced to buy the books in the first place. Similarly, in Planned Parenthood v. Casey(1992) 112 S.Ct. 2791, the Court reaffirmed Roe explicitly because of stare decisis considerations, a classic case of "adverse possession." Likewise in Romer v. Colorado, the Court again concluded that a state referendum that had outlawed local ordinances making homosexuals a protected class for civil rights purposes was unconstitutional state action against a discrete minority, even though the state law had (a) expressed a neutral position and (b) returned the state legal environment to the status quo ante.

The apparent counter-argument based on Brown v. Board of Education is inapposite. In fact, there was no single case outlawing Jim Crow Laws. There was a whole series of cases that accomplished that result, along with a committed Federal executive and aroused Northern public opinion. The reason for this incremental approach was obviously because of a concern for usages, and because the Surpreme Court knew that the South would view the Supreme Court's project - quite accurately - as having an agenda against racial discrimination.

Brown is quite frankly a strange case to cite in support of the Pledge decision. In fact, the citation to Brown may give the show away when it comes to offering a window into the minds of the decision's supporters. The Pledge case is supposed to be about enforcing a rule of neutrality among religious and non-religious. In contrast, in no way was the Supreme Court in Brown, and the many other anti-segregation cases, trying to be neutral; it was in fact trying to take apart a system of racial segregation. Brown would be apposite if the official policy of the United States was a hostility to religious usages altogether, such as with respect to the privilege of the confessional and the tax-exempt status of churches. [By the way, I don't believe that Discriminations is saying that religious expressions in the secular polity are the moral equivalent of racial segregation. On the other hand, sometimes in the practice of law we can become prisoner of our rhetoric, and using Brown as a precedent can lead to Brown-like results.]

Finally, was the phrase 'under God' clearly unconstitutional in 1954? Other similar usages have been upheld as Constitutional, and the actual language and historical context of the 'enduring' Constitution does not lead to a conclusion that in 1954 the phrase was considered constitutionally noxious. It wasn't until later that the contemporary understanding of the First Amendment developed. [For that matter, is Roe v. Wade good constitutional law? I don't think so, and probably neither did a majority of the Casey court, but usages have weight, according to Casey. Or, is it only "progressive" usages that have weight?]

The cases cited herein are not presented as controlling authority. They can obviously be distinguished. The truth, though, is that the Pledge decision was not intended - certainly by the Plaintiff's father - to be a neutral, it takes away a usage that is cherished, it was a slap at mainstream religious believers who are being told that their most innocuous beliefs are inherently dangerous to the constitutional polity, and it is another gambit in the continuing culture wars.
The Goliard Blog has the in-depth pre-game sports analysis for the titanic clash between Bhutan and Montserrat for the title of "worst national soccer team in the world."

Saturday, June 29, 2002

Rats. Scooped Again, Or a big Hello from Fresno - Punitive Damage Capitol of the World

How Appealing has this post
$290 MILLION PUNITIVE DAMAGES AWARD AFFIRMED IN CALIFORNIA: Click here to access the decision issued Friday by the California Court of Appeals for the Fifth Appellate District in Fresno, California. The judgment is against Ford Motor Company in a case involving a Ford Bronco that overturned, causing the deaths of three people in the vehicle.


I used to be a shareholder in the firm that did all the product liability work for Ford and General Motors in Central California.[Come to think of it, I represented Ford before the Fifth.] Fortunately, I don't recognize any of the names of the defendant's attorneys.
Cacciaguida makes a good point that the Pledge decision was not about a coerced religious confession. The Plaintiff would never have been required to actually say the Pledge. Rather, the decision was about cultural wars.
Suspicionless drug testing of geeks, wonks and nerds.

In BOARD OF ED. OF INDEPENDENT SCHOOL DIST.NO. 92 OF POTTAWATOMIE CTY. V. EARLS the United States Supreme Court upheld suspicionless testing of students involved in after-school activities. Since one of the seminar sections I am doing involves privacy interests in the workplace, a few comments.

Earls follows up on an earlier decision that held that the Fourth Amendment did not preclude suspicionless testing of student atheletes. In Earls, the majority observed that since the drug testing of students involved in after-school activities did not involve criminal prosecution, the bar to such tests was lowered from a requirement of probable cause under the Fourth Amendment to "reasonableness." [The Fourth Amendment is involved because public schools are part of the State.] The testing of students was reasonable, according to the majority, because (a) drug use was a problem in the school district and (b) students involved in these activities had reduced privacy expectations inasmuch as they were used to getting naked together - just like student atheletes in gym showers - and sleeping together when they went on field trips. [I know that last part sounds odd, but that's really how privacy issues are analyzed in judicial decisions.]

Not surprisingly, I'm of two minds on this issue. First, to the extent that schools have a parens patrie role with respect to students, I don't mind drug testing in schools. A purpose of schools should be to mold good citizens, and this is one way of doing it.If this decision was limited to schools, I probably wouldn't have a problem with it.

My problem, though, is that it probably announces a principle extending to broader society, and I am tired of suspicionless intrusions on the middle class. I was constantly told in law school that we had to protect the rights of criminals so that our own rights would be protected. ["I did not speak up for the...."] Then, the next thing I know is that the state is erecting random checkpoints for drunk driving, and not kicking in doors of crack houses. [Similarly, the state is also penalizing telling boorish jokes under sexual harassment laws, while allowing students to have access to intern porn in public libraries.] I wouldn't mind my civil liberties being compromised so long as sometimes the rights of criminal were occasionally compromised as well.

Drunk driving is the quintessential middle-class crime. I bet that you're average blue-collar or white-collar person has a greater chance of getting popped driving home from his local bar, than he has of being picked up for selling crack or insider trading. So, why is it that Fourth Amendent concerns go out the window where the middle-class is concerned?

Just so with the Earl decision. Who's being targeted here? The Chess Team, Forensics, Madrigals. In other words, just the kind of students who probably aren't involved in drugs. Why aren't the shop or remedial math classes being targeted? Might it be because the school district wants to give the appearance of controlling drugs, or is it some concern that if they went after those other sectors of the school society, then there might be a concern about an intrusion on civil liberties? After all, like going after the middle-class with random checkpoints, going after the Math Club doesn't look like invidious discrimination.

Friday, June 28, 2002

TalkLeft: The Politics of Crime is a blog interested in looking at criminal law from a leftist perspective. Neat. Reading a contrarian view on criminal law should be interesting. After all, an unexamined life is not worth living.

It has this provocative post supporting parole for Leslie Van Houten, who at age 19 participated in the Manson murders:

Van Houten has served 30 years in prison. She has apologized for her crime (she wasn't part of the Sharon Tate murders but did play a part in the La Bianca murders the following evening). While in prison she has earned two college degrees and been a model inmate.

We applaud the Judge. Grant Leslie Van Houten parole. She was 19 at the time of the crime, has paid for it with 30 years of her life, and if you have ever listened to her (and we have, since some of her prior parole hearings have been televised) you can't help but feel she's genuine and hardly a threat to anyone now.


Talkleft may be raising a fair philosophical point about the nature of identity. Is Van Houten today the same person she was at 19? When I reflect on decisions I made in the past, it sometimes seems that I can longer know the person who made those decisions, nor do I share his values or ideals. [For example, three months ago, the past me agreed to do a seminar on Employment law, which the past me knew would involve writing up 60 pages of material, and which the present me should now be compiling before Tuesday instead of writing this post. What was the past me thinking? Why didn't he do the work himself, instead of fecklessly shifting the load to the present me? The past me always seems to be the one who manages to irresponsibly divert work to the always put-upon present me. Ah well, the future me will just reap the benefits without ever doing the work.]

Identity is not an easy concept to parse. For example, let's assume that someone commits a crime and thereafter suffers a brain injury which completely erases that person's memory. What is the philosophical basis for punishing him? [Humour me. I can think of all kinds of pragmatic reasons for punishing him.] Is it because his body committed a crime? The mind - the personal identity - is gone, after all. Isn't punishing someone for a reason which they can't understand "cruel and unusual?" This is one reason, after all, that we don't execute the insane. [Instead, we give them anti-psychotics, make them sane, and then execute them.]

On the other hand, my difficulty with preparing seminar material notwithstanding, there is a sense that all we have from one moment to another is historical continuity. Identity isn't a state; it's a process. People are constantly developing their identity through all of the historical experiences they have lived through. My favorite line for deposition preparation is Sartre's observation that while we live life going forward, we understand it looking back. It's the process of reflection on our life events that gives us an identity, not the living forward. Animals live life in the eternal present, but no matter how much you love your cat, they don't have identities in the same sense that humans have.

The present Van Houten is the past Van Houten, who participated in the murder of a people who didn't know her and who didn't deserve what she did to them, plus everything else in her life that she managed to experience. That's who she is. If the legal system says that parole should be based upon whether she has reformed, fine, so be it. But she can't say that she is not the same person as the 19 year old who did something very terrible thirty years ago.
"Gnostics to the right, Modalists to the left, stuck in the middle with you."

[Apologies to Steely Dan.] While I don't mind bad theology, I mind unexamined thinking of the kind where someone floats some idea as new and different without ever wondering "gee, has someone else ever been there and done that." [This pedantic snobbery is one of my more endearing traits.] Recently, I've run across full-throated gnosticism of the kind that was sent packing circa 350 A.D. in this Easter sermon and this Bible Discussion Group's website. Apart from the fact that they may prefigure a trend, they have the same intellectual interest as the discovery of the Coelocanth.

Then, Penner unearths this Frequently Asked Questions from an Evangelical apocolyptic website which has this passage:

Some people believe that God doesn't manifest himself in the form of God the Father, The Son, and the Holy Ghost. They believe these are only roles he's plays throughout history. I've had experience with the United Pentacost Church, the main proponent of the Jesus only doctrine, and I know they view everyone else as praying to a three God system. By the process of elimination, The UPC also believes they are the one true way. I don't know of any church that teaches the trinity is comprised of three separate Gods.


When did the Pentacostal church become so, well, heretical? The view that the persons of the Trinity are simply manifestations of God in different forms is the ancient heresy of Modalism or Sabellianism, which held that the three persons of the Trinity were simply modes, conditions, titles or aspects of God, and not true persons.David Christie-Murray, A History of Heresy has a very good discussion of early heresies, and their sociological implications. The notion that the trinity consists of only one Person, namely Jesus Christ, is new to me. The historical Christological struggle involved denying the humanity of Jesus, via Gnosticism, or denying His divinity, via Arianism or Adoptionism. If there is a church that denies the divinity of the Father, in favor of that of Jesus, that would be a new development, perhaps, though, it is a logical, albeit extreme, psychological development of doctrines that stress a faith in Christ alone. Finally, there is, and were, churches that taught that the Trinity was composed of three separate Gods. Currently, Mormonism is anti-Nicene, and, of course, historically Arianism was the strongest opponent to Nicene Christianity's view of the Trinity. For a readable account of the struggle between Arianism and Orthodoxy check out William B. Palardy - When Jesus Became God: The Epic Fight over Christ's Divinity in the Last Days of Rome, which though it may overstate certain points, does make the interesting point that the view of a divine, powerful Jesus was supported by the lower classes, while the Arian view, with its more-human Jesus, was favored by the powerful elite.

Christological issues are interesting because they show a tendency in the history of the Church to steer a middle course between extremes. The doctrine of the Trinity is a mystery. It can be logically simplified without great difficulty -which frankly is what these historical heresies were doing - but those simplifications result in compromises of other doctrines, and pretty soon, you end up with bizarre statements like history is not important to Christianity or that the Son is the only member of the Trinity still in circulation. The great tradition of the Church has been to refuse to adopt simple understandings of difficult doctrines, no matter how logical and psychologically satisfying they may initially appear.

Thursday, June 27, 2002

The Pledge of Allegiance and Ships Passing in the Night

Cases are often decided by judges based on the initial characterization of the relevant facts of the case. For example, the one and the same case may either be about an employee’s right to be free of sexual harassment, or about the employer’s right to terminate an inferior performer. Where the judge, or jury, starts often determines where the case ends up.

The recent 9th Circuit decision on the Pledge of Allegiance [link via William Sulik] is a case in point. In an incredibly inane decision, two out of three Justices determined that the almost fifty-year old current version of the Pledge of Allegiance is unconstitutional to the extent that it includes the phrase “under God.” According to the majority’s view, this phrase clearly runs afoul of the “establishment clause” of the First Amendment because it endorses religion. According to the majority:

In the context of the Pledge, the statement that the United States is a nation "under God" is an endorsement of religion. It is a profession of a religious belief, namely, a belief in monotheism. The recitation that ours is a nation "under God" is not a mere acknowledgment that many Americans believe in a deity. Nor is it merely descriptive of the undeniable historical significance of religion in the founding of the Republic. Rather, the phrase "one nation under God" in the context of the Pledge is normative. To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and -- since 1954 -- monotheism.



This endorsement, according to the majority, runs afoul of established Constitutional law on the Establishment Clause. According to the majority:

The text of the official Pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God. A profession that we are a nation "under God" is identical, for Establishment Clause purposes, to a profession that we are a nation "under Jesus," a nation "under Vishnu," a nation"under Zeus," or a nation "under no god," because none of these professions can be neutral with respect to religion. "[T]he government must pursue a course of complete neutrality toward religion." Wallace, 472 U.S. at 60. Furthermore, the school district's practice of teacher-led recitation of the Pledge aims to inculcate in students a respect for the ideals set forth in the Pledge, and thus amounts to state endorsement of these ideals. Although students cannot be forced to participate in recitation of the Pledge, the school district is nonetheless conveying a message of state endorsement of a religious belief when it requires public school teachers to recite, and lead the recitation of, the current form of the Pledge. The Supreme Court recognized the normative and ideological nature of the Pledge in Barnette, 319 U.S. 624. There, the Court held unconstitutional a school district's wartime policy of punishing students who refused to recite the Pledge and salute the flag. Id. at 642. The Court noted that the school district was compelling the students "to declare a belief," id. at 631, and "requir[ing] the individual to communicate by word and sign his acceptance of the political ideas [the flag] . . . bespeaks," id. at 633. "[T]he compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind." Id.


Although a some commentaries argue that the words “under God” are not an establishment of religion [see The Corner on National Review Online.] This seems clearly wrong. The Pledge does endorse a particular theological view, namely that there is a God. [Let’s be clear, I think that’s a good thing.] Under a plethora of cases that endorsement is clearly unconstitional. [On the other hand, please also see William Sulik for a excellent dissection of the decision and his argument that the last twenty years of constitutional exegisis which has precluded, inter alia, minutes of silence and baccalaureate speakers is wrong. I'm not sure that there will be a blanket realization that those principles are wrong. I just don't see the Supreme Court reversing field on issues like School Prayer at this late date.]

Does this mean the 9th Circuit’s ruling is correct?

Absolutely not. The problem is the other ship passing in the night.

As has been observed by others [see e.g.ben domenech online], the American polity is replete with references to God. Our money, our semi-official national anthem, God Bless America, the fact that the Supreme Court starts with the words “God save this Honorable Court,” and the invocation offered by the Chaplain in Congress Assembled. The Declaration of Independence refers to God. The Supreme Court has either upheld these “secular” practices, or is informed by these traditions.

How does this circle get squared? Part of the answer may be Scalia’s commitment to the “dead,” or enduring, intent of the Constitution. Did the Framers of the First Amendment intend the result announced by the Ninth Circuit? Absolutely not. How do we know that? I might suggest that one look at the fact that Congress and the Court felt that it was constitutionally acceptable to identify a Creator or God. The ship the Supreme Court should set sail on ought to be the intent of the Frames, rather than some evolving concept of the Establishment Clause.

Oddly, one of the most sensible suggestions on this issue comes from the dissenting opinion:

But, legal world abstractions and ruminations aside, when all is said and done, the danger that"under God" in our Pledge of Allegiance will tend to bring about a theocracy or suppress somebody's beliefs is so minuscule as to be de minimis. The danger that phrase presents to our First Amendment freedoms is picayune at most. Judges, including Supreme Court Justices, have recognized the lack of danger in that and similar expressions for decades...


Further, isn’t there a danger of an establishment of an official atheist polity? Essentially, the excessive 9th Circuit decision communicates that the values of Believers is so dangerous that the most innocuous expression of that value is dangerous and to be cleansed from the “public square.” It would seem that there is a distinct difference beteen removing the phrase "under God" and not putting it in at the outset. The removal seems to constitute governmental action and endorsement of an official postion on the noxiousness of religious expression, which is really what the outrage being expressed nationally concerning the decision is all about. Wouldn’t that hostility to a particular discrete and insular segment of society not merit judicial protection pace Romer v. Colorado? Remember Romer was the decision where the Supreme Court knocked down a state-wide referendum precluding local statutes designed to designate homosexuals as protected under local anti-discrimination statutes on the basis that such a state-wide referenda violated the Equal Protection clause by stigmatizing homosexuals and barring them from access to the political process. Replace the word "homosexual" with the word "Believer" and is there a material difference under Romer, inasmuch as Believers are being stigmatized as "dangerous" and their innocuous historical traditions are being politically embargoed by state action.

Well, probably there is a material difference. Look to the Supremes writing a decision finding that the phrase “under God” in the Pledge is purely secular, or somehow has lost its religious component. [For what I believe is a Law review article supporting the view that the Supreme Court resolves the dilemma illustrated by the Pledge case by secularizing historical religious usage, check out this Law Review Article.]

Wednesday, June 26, 2002

In an odd bit of news reporting, Father Jim Tucker at Dappled Things has yet another entry into the burgeoning file marked "Evidence that the Reformation was a Mistaken Attempt to 'Fight the Future'" under the heading "Henry VIII and the Industrial Revolution:"

I've always enjoyed science fiction that toys with "what-if" history. This fascinating piece in the papers today raises the question of whether English Cistercian monks were on the verge of jump starting the Industrial Revolution 200 years ahead of schedule and what might have happened had Harry Tudor not dissolved the monasteries.


Putting aside the Pavane-like quality to the article, I always thought that Henry VIII's appropriation of Church property was an impetus to the Industrial Revolution by freeing up excess capital. Maybe not, apparently. Another example of the dead white male propoganda dispensed in History 142A - Early Modern European History.

Tuesday, June 25, 2002

I swear I'm going to get through this without making a offensively derogatory comment about the Irish predeliction for Whiskey and Beer.


The Goliard Blog now has a favorite posts section, which is fortunate because it gave me a chance to peruse his really nifty explanation of the niceties of the Irish electoral scheme. Apparently, elections to the Dail [pronounced "Doyle" in an eerie synchronistic reference to the name that precedes Penner's on the letterhead] are based upon "proportional representation with single transferable votes" in an election scheme that would make Lani Guinere green with envy. Goliard writes:

And the wondrously convoluted electoral system provides days of suspense and fodder for analysis. (RTÉ has a good explanation of Ireland's Proportional Representation with Single Transferable Vote system at its website.) A couple of small ways: All the Irish accents and place names and occasional Gaelic words are awfully pleasing to this Celtophile's ears.


Check it out if your Celtophilic in any way.

Great. That's done. I think I'll go have a boilermaker.
While the Catholic community cheerfully commits fratricide over the issue of who is a "Cafeteria Catholic," this just in from the Presbyterian Front

Cool. I just found a Presbyterian blog. The blog is sacra doctrina...thinking out loud and it ranks number one on The Leaderboard - which is some kind of listing of the most linked religion-oriented blogs. Sacra Doctrina reports on the ongoing Presbyterian General Conference, which, if it's like the Methodist General Conference, is where the laity and clerisy, get together to define and refine polity and doctrine. Sacra Doctrina writes, among other things:

The Assembly has also clarified the meaning of "Confessional Subscription" by officers within the denomination, re-affirming the traditional Presbyterian position of "good faith" subscription that steers a path between "strict" subscription on one hand (which allows for no exceptions) and "loose" or "broad" subscription on the other hand (which allows for any and all personal differences with the confessional standards so long as one can, in good conscience, affirm them loosely). The Assembly has put it in the hands of each Presbytery to allow for candidates for office to take exception(s) to a particular statement(s) of our Confessional Standards so long as that "declared difference is not out of accord with any fundamental of our system of doctrine because the difference is neither hostile to the system nor strikes at the vitals of religion."


Pardon my ignorance. Is this a new development in Presbyterian doctrine since the 1970's? I just hadn't imagined the heir of Knox and Calvin to be so casual about doctrine. Based upon my admittedly weak knowledge of Reformation history [derived chiefly from The Teaching Company's 36 part lecture series on the History of Christianity in the Reformation Era by Professor Brad S. Gregory] I was under the impression that Calvin's chief point was his rigorous and rigid explanation of Christian doctrine. But I could be wrong. [Product plug: OK, virtually my only knowledge of the Reformation history comes from Professor Gregory's lectures, and I graduated with honors from U.C. Davis with a degree in History. I managed to skip over the entire period since, as I like to point out to my Mennonite partner, Penner, nothing good ever happened between 1517 and 1648. [Well, maybe the Defenestration of Prague, but that's the only thing. Maybe not, though; it depends on who landed in the pile of cow-flop.] On the other hand, Professor Gregory's lectures are excellent. He looks at each of the three religious traditions - Catholicism, Magisterial Protestantism and Radical Protestantism - internally as a system of thought. I came away with a pretty good understanding of what each of these traditions was trying to accomplish from its own viewpoint. Except for the Anabaptist Kingdom of Munster, which just seemed weird, although it did leave the field open to that all-around great guy, Joe Menno. I wholeheartedly recommend this lecture series. End plug.]

Monday, June 24, 2002

Obscure Science Fiction Reference Alert

The Christian Conscience right here has a short, short story called the Tale of Two Brothers. It sounded familiar. So, I pulled out my tattered copy of Who Fears the Devil by Manly Wade Wellman [probably one of the last three copies in existence], and sure enough a slightly longer version of this story is there, titled as "Over the Hills and Everywhere." The flyleaf says that that story was first published in the Magazine of Fantasy and Science_Fiction in 1956.[It looks like it was also turned into a movie and a CD collection.] The storyline of Who Fears the Devil involves a travelling folk singer who a-wanders into the myths of Appalachia, and I always had the feeling that the stories in it were somehow authentic to that part of the country. The Wellman stories are classics, if you like that kind of thing.

My question: Is the "Tale of Two Brothers" a recycling of the Wellman story, or does it have deeper Appalachian folk-roots?
Speaking of objective evidence getting in the way of a warm and cozy view of the world

The Spectator.co.uk has a refreshingly contrarian article on global warming.

Sunday, June 23, 2002

Just read this (LILEKS) James : the Screed if you haven't already.

Then look at the picture.
Yea, that's what I meant, only I am too polite to say it.

Professor Reynolds has this nice synopsis of the point I was trying to make in this post about the trend toward content-based speech regulation and the corresponding deafening silence of the New Class component of society at Instapundit.com:

It would be overly harsh to say that much of the left's enthusiasm for free speech vanished as soon as communists no longer needed it. But the thought has occurred to me, and it's one reason why I stopped considering myself part of the left.


But, if I said it, I would be accused of being unnuanced.
A still, quiet voice calmly calling for a renewed national debate on the continuing relevance of the ancient Catholic tradition of the Auto-da-Fe

Neatly demonstrating that Gnostic, feel-good theology is not confined to any religious tradition, or any particular millenia, Bill Cork's Blog [via Mark Shea's site] has a fascinating account of his perusal of the web site for St. Joan's Catholic Parish in Minneapolis, Minnesota. He observes:

[St. Joan's] seems to be the perfect NCR parish. It prides itself in having its main liturgies in the gym, rather than the church. Lay men and women give "homilies" as often as the priests (who don't wear collars). There is a GLBT youth page. Parishioners feel ordination of women will solve the church's problems. You may attend a communal penance service twice a year, or you may make special arrangements to go to confession on Saturday afternoon (it isn't normally provided, and evidentally you can't make arrangements to go any other time). First communion precedes first confession by two years.


The St. Joan's web site is here [St. Joan of Arc Catholic Church, Mpls., MN., USA.] Peruse it, and you will either feel a slowly mounting horror, or you will say "cool, this is the easy-going, do-your-own-thing style that Catholicism has always been famous for." For example, while Confessions are apparently pretty optional as sacraments go, there is the obligatory Gay, Lesbian, BiSexual, Transgender [GLBT] Community-Building page. Nothing wrong with that, so long the St. Joan GLBT community is platonically GLBT. Otherwise, someone at St. Joan's might want to philosophically reflect on Catechism Section 2357, which describes homosexual acts as "acts of grave depravity" and "intrinsically disordered," and - my personal favorite - Section 2286, concerning scandal, which is defined as "an attitude or behavior which leads another to do evil" and which is a "grave offense."

For me, though, it was the "Bible Discussion Group" that took my breath away, or sent my blood-pressure skyward, but I'm better now. Here is the relevant excerpt:

During the summer the SJA Bible Study Group often decides to venture out of the "big book" and look at some commentaries and thought-provoking writing related to the writings about and the life of Jesus. We have done so again by exploring Tell Me Your Story: The Parables of Jesus written by local scholar Dr. Art Zannoni. Our next venture will be an exploration of the Gospel of Thomas; considered "the fifth Gospel", which is a very early collection of the "secret" sayings of Jesus.


So good of them to "venture out of the 'big book.'" They could have ventured into the Summa Theologica, the City of God, the Confession or some other work that actually informs their religious tradition. Perhaps, though, they've already worked their way through those tomes, and needed to stretch themselves intellectually and theologically by reading "Tell Me Your Story: The Parables of Jesus."

Nothing wrong with that. It's the other thing that set me off. According to the Bible Discussion Group the Gospel of Thomas is "considered "the fifth Gospel", which is a very early collection of the "secret" sayings of Jesus."

By whom? Since when? I haven't been this confused since the Jesuit priest performing the baptism of my second child informed everyone that the Church no longer believed in Original Sin.

There is something breathtakingly reassuring about the consistency of people with an avante-garde philosophical orientation. They grab the latest thing and proclaim it as the most innovative and inspirational insight to come down since the Budha found enlightenment under a Bo tree, without ever checking the intellectual provenance of the "new" belief. If they did, they would find that their avante garde ideas have the intellectual depth of plyboard, and have been considered, and rejected, time and time again.

For the record, the Gospel of Thomas has been known to scholarship for over 100 years, it was rejected as heretical by Church Fathers, such as Origen, in the mid-third century, it contains obvious Gnostic heretical notions, which lead most scholars to believe it was written at least well into the second century, and the earliest manuscript version of the Gospel of Thomas date to the fourth century. Hidden Gospels
How the Search for Jesus Lost its Way by Philip Jenkins
is good discussion of the history and secular motivations of modern liberal Biblical scholarship. Likewise, Saint Saul: A Skeleton Key to the Historical Jesus, which is written by someone who is decidedly not religiously orthodox, has an excellent discussion of the lack of a historical basis for describing the Gospel of Thomas as the "Fifth Gospel," and, as an added bonus, has the best description of how progressive biblical scholars were taken in by some practical joker who forged the "secret Gospel of Mark" in the 1950's with some photographs. [It was also misdescribed as the "Gospel of St. Thomas" in that really awful and virulently bigoted movie, Stigmata.]

Gnosticism has been with the Church from almost the beginning. The great triumph of the Church was that it turned its back on such silly mythology and embraced a key belief that the real world was worth knowing because it was good, and it was good because it was created by God. The Church, and eventually European Civilization, embraced history and empiricism. It's no accident that St. Augustine, who saw through the silly, self-congratulatory myths of Manicheism, also debunked the superstition of astrology in the fourth century. But I reckon that the deep thinkers of St. Joan's parish don't know much about St. Augustine; he's not very relevant, and his kind of thinking - based as it is on objective reality - does tend to get in the way of a manufactured world that makes one feel really, really warm and fuzzy.

Footnote: For the earlier post which has the jump cite to Bishop's Chane's sotto voce endorsement of Gnosticism click here.


Saturday, June 22, 2002

Principles and Results

As I noted several posts down, a common theme of blog commentary on the Atkins decision is the writer's observation that "while I personally oppose the death penalty, this decision is incoherent." A sentiment, incidentally, that I have not heard expressed in the mainstream media where the reporting is only about the death penalty, and not about the rules of democracy.

This post by < the Brothers Judd Blog> takes the idea of neutral principles in a different direction by challenging the underlying assumption of the Atkins decision that retarded citizens simply can't be trusted.

Though generally supportive of capital punishment, it does seem inhumane to execute someone who is so profoundly stupid as not to be able to comprehend the right or wrong of their own actions. Here though the Court did not limit its decision to those who are incapable of distinguishing, it instead said that retarded people might be more prone to act on impulse and so have some diminished culpability. This reasoning is unconvincing. Even the six justices who so ruled do not apparently say that this diminishment suffices to absolve someone entirely. It's difficult to see why it would be okay to imprison someone for life but not to execute them. If we truly believe them not to be fully culpable, then what is the basis for punishing them at all?


Interesting. Does our evolving sense of decency now indicate that we should institutionalize these people? Will states now be able to eliminate mainstreaming programs based on Atkins principles that retarded citizens are not able to comply with generally accepted social norms? Is mainstreaming of the mentally handicapped now a dead issue?

I doubt it. Evolving senses of decency typically cut only in a particular direction.

And as the ultimate criticism of Atkins by a death penalty opponent, there is this commentary by
Richard W. Garnett on Atkins v. Virginia on National Review Online :

Now again, I like this result. It strikes me as humane, if not democratic. I would vote for it as a legislator and campaign for it as an activist. But I also live under a Constitution. And I am quite convinced that my likes and dislikes are irrelevant to the question of whether the Eighth Amendment to the United States Constitutions forbids those who disagree with me from enacting and enforcing laws that reflect their likes and dislikes.


The Supreme Court single handedly created the abortion debate by its decision in Roe v. Wade. A few more decisions like Atkins and it may succeed in revitalizing support for the death penalty.

Friday, June 21, 2002

Ask and you shall receive

I think that's a bible quote. As an RC, I can't be sure. Just don't challenge me to a St. Augustine smack-down, or a quick round of Name-the-Popes.

Mark Byron has graciously explained the custom and practice of "icing." I think I see my hitherto confusion. Apparently, it is not icing if one team - the "receiving" team for want of a better term - skoots out and touches the puck first. That would explain the delightful randomness that I observed wherein sometimes "icing" would be proclaimed, and sometimes not, for the exact same fact pattern. What, though, happens if the receiving team decides not to skoot out and touch the puck? Does the "passing" team spend the rest of the game staring at the puck in impotent frustration? Or, is there a "rule of reason," whereby, after a reasonable interval, the receiving team forfeits its option to skoot out and recover the puck?

A confession is in order. My law partner, Penner [one of the seven sacred Mennonite names,] is an ex-patriate Canadian. He has attempted to explain "icing" to no good effect. I have always felt that it may be a cultural thing, like vinegar on French Fries or Celine Dion or allowing the French to have an equal say in government. ["Not that there is anything wrong with that." A disclaimer may be in order in light of the vigorous development of Canadian hate-crime laws.]

By the way this exercise in confusion comes from Fresno, California, the proud home of the 2001-2002 West Coast Hockey League Champions, aka "your fighting Fresno Falcons."
And to think it was only a few short years ago that we were talking this way about Albania

I'm writing a Rotary bulleting, and I needed the spelling of the name of the President in North Korea. Don't ask. The reason is not important. Anyhow, I ran across this great bit of travel commentary from the Lonely Planet World Guide :

"...there's enough weirdness in North Korea to gobsmack you. Frankly, any country that sees death as a non-issue when it comes to electing an eternal president deserves our full attention.


The Good News is that somehow we have evolved into a more decent society; the Bad News is that somehow we've also evolved out of a belief in democracy

The United States Supreme Court has decided in ATKINS V. VIRGINIA that "evolving standards of decency that mark the progress of a maturing society" made the execution of a possibly retarded criminal defendant "cruel and unusual" punishment under the 8th Amendment.

Before addressing the Opinion, an editorial disclaimer. I seem to have noticed a slight but discernible trend against support for the death penalty. Perhaps, recent revelations of actual innocent people - innocent in fact of the crime for which they have been convicted - have created this trend. I also note that blog commentary on Atkins starts "while I am personally opposed to capital punishment...."[ See William Sulik and Megan McArdle.] Likewise, I have moved from a moderately pro-death penalty position to a moderately abolitionist position. The change in my sentiments have largely been the caused by the decline in the crime rate, the exoneration of innocent convicts, and, frankly, the writings of the Old Man in the Vatican, who, if he can spend a lifetime staring down Nazis and Communists, probably knows something. So, if there was a vote today, I would agree with the proposition that we really don't need to execute retarded people. On the other hand, the quickest way to abort the trend in favor of abolition is for the Supreme Court to act arrogantly, which it has managed to do in Atkins.

That said, however, web commentary on the intellectual incoherence of the Majority position is spot on.

First, although the media describes Atkins as "severely retarded", he almost definitely wasn't, and a jury determined he wasn't. The Majority summarized the evidence in favor of retardation as follows:

In the penalty phase, the defense relied on one witness, Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins before trial and concluded that he was ““mildly mentally retarded.”” His conclusion was based on interviews with people who knew Atkins, a review of school and court records, and the administration of a standard intelligence test which indicated that Atkins had a full scale IQ of 59.


So Atkins was at best "mildly mentally retarded," and that was true only so long as he didn't deliberately blow the standardized test.

There was competing evidence, though, that Atkins was not retarded.

At the resentencing, Dr. Nelson again testified. The State presented an expert rebuttal witness, Dr. Stanton Samenow, who expressed the opinion that Atkins was not mentally retarded, but rather was of ““average intelligence, at least,”” and diagnosable as having antisocial personality disorder. App. 476. The jury again sentenced Atkins to death.


So, there was conflicting evidence and the jury found against the defense. In our judicial system, a jury's factual finding cannot be set aside on appeal if its verdict is supported by "substantial" - i.e., not fictitious - evidence. This jury's finding clearly was, and yet the Majority completely sets the verdict aside. This is not a trivial point. The jury's fact-finding sovereignity is considered to be an expression of democracy, and a bulwark of liberty against the State. But, hey, if two-hundred years of legal tradition gets in the way of an evolving sense of decency, out it goes.

Strike one for democracy.

The Majority's conclusion was based on its determination of our evolved sense of decency. Where did that come from? Did it come from - I don't know - the freely expressed sentiments of a sovereign people, as evidenced by the free and democratic votes cast as part of an initiative or referenda, or by its duly elected representatives? Why don't be silly. Obviously, the evolving sense of decency was intuited from groups that are typically ignored by the Court lest they contaminate democracy with unhealthy, anti-democratic, regressive social attitudes:

Additional evidence makes it clear that this legislative judgment reflects a much broader social and professional consensus. For example, several organizations with germane expertise have adopted official positions opposing the imposition of the death penalty upon a mentally retarded offender. See Brief for American Psychological Association et al. as Amici Curiae; Brief for AAMR et al. as Amici Curiae. In addition, representatives of widely diverse religious communities in the United States, reflecting Christian, Jewish, Muslim, and Buddhist traditions, have filed an amicus curiae brief explaining that even though their views about the death penalty differ, they all ““share a conviction that the execution of persons with mental retardation cannot be morally justified.”” See Brief for United States Catholic Conference et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00——8727, p. 2.


Clearly, the only good religious viewpoint is an evolving, progressive religious viewpoint. Strike Two for democracy.

In addition, the Majority reflected upon that great wellspring of American Constitutional values - European elite opinion:

Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved. Brief for The European Union as Amicus Curiae in McCarver v. North Carolina, O. T. 2001, No. 00——8727, p. 4. Finally, polling data shows a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong. R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1; App. B to Brief for AAMR as Amicus Curiae in McCarver v. North Carolina, O. T. 2001, No. 00——8727 (appending approximately 20 state and national polls on the issue). Although these factors are by no means dispositive, their consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue. See Thompson v. Oklahoma, 487U.S. 815, 830, 831, n. 31 (1988) (considering the views of ““respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community””).


Strike Three for democracy, and thereby earning Scalia's scornful observation:

But the Prize for the Court’’s Most Feeble Effort to fabricate ““national consensus”” must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called ““world community,”” and respondents to opinion polls. Ante, at 11——12, n. 21. I agree with the Chief Jus-tice, ante, at 4——8 (dissenting opinion), that the views of professional and religious organizations and the results of opinion polls are irrelevant.6 Equally irrelevant are the practices of the ““world community,”” whose notions of justice are (thankfully) not always those of our people. ““We must never forget that it is a Constitution for the United States of America that we are expounding. …… [W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.”” Thompson, 487 U.S., at 868——869, n. 4 (Scalia, J., dissenting).


Obviously, though, the Majority didn't really consider religious input or European values; it really considered its own common-sense and logic. Thereby, earning this further Scalia zinger:

The arrogance of this assumption of power takes one’’s breath away. And it explains, of course, why the Court can be so cavalier about the evidence of consensus. It is just a game, after all. ““[I]n the end,”” it is the feelings and intuition of a majority of the Justices that count––““the perceptions of decency, or of penology, or of mercy, entertained …… by a majority of the small and unrepresentative segment of our society that sits on this Court.”” Thompson, supra, at 873 (Scalia, J., dissenting).


This Opinion was clearly in Scalia's mind when he wrote the First Things commentary discussed below. In light of this Opinion, a fresh look at that commentary might be in order.

Also, as I noted in my post on Scalia's views on the death penalty, if the vice of legal conservativism is formalism, the vice of legal liberalism is result-oriented reasoning. I know which one I will choose, if the alternative is to have our democratic rights taken away so that we can conform to the moral sensibilities of France or Belgium.

Thursday, June 20, 2002

Read this for a social history of "Madam Geneva," aka Gin.

Wednesday, June 19, 2002

The Supreme Court has proactively ruled McCain-Feingold Unconstitutional

According to Blithering Idiot William Sullik [that's his nom de blog, not an editorial position] the United States Supreme Court's ruling in the Jehovah's Witness door-to-door solicitation case points the way to its future ruling on McCain-Feingold. Sulik notes that the Court endorses the right of speakers to be anonymous, among other issues.

I haven't read the decision yet, since apparently the San Francisco Daily Journal runs a few days behind the Sulik's Virginia Lawrag. He's probably right since the Court has never been keen on prior restraints and, hopefully, hasn't changed its mind. On the other hand the abortion-bubble case was a prior restraint case too, and the Court upheld that statute. Sometimes these things are determined sui generis after reviewing the issue's popularity with the intellegentsia class. It should be interesting to read Straton and see if and how they distinguished the abortion-bubble case.
Mark Byron explains the mystery of the "pulled goalie" play. Now, if he can deconstruct "icing" for us, he will have made a contribution to human understanding.

Tuesday, June 18, 2002

Megan McArdle at Live from the WTC shows what a wicked weapon can be forged from unrestrained sarcasm and a knowledge of English grammar and usage, as she whips a foreign journalist back into her kennel. Read it, then have a post-prandial cigarette.
Minute Particulars has some interesting posts on theism and the epistemology of morality.

Monday, June 17, 2002

As if you needed another reason to waste time on-line,

This useful site allows you to identify your Role-Playing Stereotypes.
Glenn Reynolds at Instapundit has rediscovered one of the invisible anomolies in the philosophy of abortion. If abortion is premised on the right to choose, how come only Mom gets a choice, but Dad doesn't?

I remember having this exact discussion with my liberal friend, J. Salcedo, almost twenty years ago. I pointed out to him that since the factors of the stigma of unmarried parenthood and forced alteration of life goals were as real for unmarried fathers as for unmarried mother, the principle of choice expressed in Roe v. Wade was as applicable to fathers as mothers. His response was that since the man was just "having fun" he had to pay. My response was a query about what the woman was doing? Filling out a tax return? I then had the fun of accusing him of not being pro-choice. [Score.]

This anomoly is potentially the wedge issue of the abortion debate. If women realized that men could shuck the responsibilities of fatherhood by filing a declaration of the right to choose, certain sociobiological imperatives would kick in and - statements about abortion becoming a sacrament if men could become pregnant notwithstanding - the legal system would take a different view on the subject.

In fact, though, the issue will never arise because welfare policy dictates that men not be given the same right to choose that women have. And for that reason, the issue will never, ever reach the radar screens of public consideration, except on the samizdat internet. As condensed in the Instapundit archives: BILL QUICK REPORTS on a growing movement to protect "fathers" from paying child support for children who aren't actually theirs. "But the children need somone to support them," is the response, "and if these unlucky guys don't do it, who will?"

Read the comments, and see if the arguments have changed since Salcedo and I first argued them over beer in 1981.
After this, daily revelations of pedophilia and cover-ups must start sounding pretty good.

William Sulik has a post on the former Episcopalian -thank God - Bishop of San Diego's final sermon to his parishioners where he proclaims the Good News of salvation that Jesus did not rise from the dead. The Bishop relies on reason and the literary gifts of the Jewish People; Sulik relies on the fact that Paul wroter about Jesus' Resurrection within thirty years of the event - within the living memory of eye witnesses. Here is the good Bishop's Easter sermon, and here is a taste of the sermon:

To be an Easter people means claiming a relationship with Jesus Christ that is based very little on history and a lot on the intangibles of relationships, the unknown mystery of unconditional love and the active presence of God in our current world. It means, "fessing" up to not having all the answers, theologically or otherwise. It means standing up and saying, "I don't have a clear understanding of the resurrection…how it happened or what, ultimately, did occur."


Sulik is, of course, right about Paul. But more important, Christianity is a historical religion. It rests on the premise that God intervened in human history at a particular point in historical time at a particular historical place. Christianity created history. Christianity was distinguished from its pagan predecessors - who knew that they were involved in mythology- by its commitment to the real world. Read St. Augustine's response to the myth-making Manichees and realize the importance of Christianity's rejection of the mythical view of the world.

The good Bishop is to be commended for encouraging his flock to advance two-thousand years into the past to embrace a world of myth and Gnosticism.

Sunday, June 16, 2002

Happy Father's Day, Episode II

It's Father's Day, so I did something you don't get to do unless you're someone's Daddy. I took the Widget, the Wadget and Boff to see Scooby Doo, The Movie. Ah, the joys of riding herd on three girls, ages 5, 4, and 9. The fight over what candy to get. The Widget advising me at 10 minutes from the end of the movie that she had to use the bathroom. Taking her, waiting in line, returning to find out that Wadget then had to use the bathroom, repeating the process.

About the movie, it really wasn't that bad in a silly, self-parodying way. I'm not recommending it; I went in with no expectations, and I wasn't disappointed.

One other comment, am I the only American male who always knew that Velma was the hot one?
The Dialectics of Soccer.

The Goliard Blog is running regular posts on the World Cup. He even manages to make it sound interesting. One of the more interesting discussions on his site is the discussion of whether soccer is the uber-manifestation of Socialism, or whether it can be reconciled with vibrant, manly free market conservativism. The short-cut to the that part of the discussion is here, assuming I have all the quotation marks and a hrefs in the right place.
Happy Father's Day

My generation of parents won't let their children walk to school because of the hysterical fear of stranger abduction, but - and perhaps because it does - ignores the real risk to children in the breakdown of the institution of marriage. According to Patrick Fagan in National Review Online, children are six times more likely to be abused in a step-family, 13 times more likely in a family with a single mother living alone, 20 times more likely in a cohabiting natural family, and 33 times more likely if they live with their natural mother and a boyfriend who isn't their father. Poverty and depression likewise climbs to the stratosphere in split families. And for single men, there is this vision of Hell from Hieronymous Bosch:

"Men who choose to remain single spend most of their evenings at home, eating Cheez Dip and watching wrestling on television," sociologist James Q. Wilson once wrote.


When I consider the no-fault world we created, I am reminded of the this passage from Book I of St. Augustine's Confessions:

For you have imposed order, and so it is that the punishment of every disordered mind is its own disorder.

Hypothetically, Israel is hypothetically perfecting the hypothetical third legal of its hypothetical nuclear triad according to this Washington Post article It does have three real submarines, though.

Friday, June 14, 2002

Read Rich Galen's ode to American small business. They are America's small business women and men. They are the backbone of America. Then, go out and join Rotary, give back to your community, and become something more than you were before.

Thursday, June 13, 2002

When I was in third grade in Hanford, California, there was a large vacant lot three blocks from my home. Most days, we kids would go play in that lot, blocks away from home for hours, and no parent gave it a second thought. Now I drive past similar lots, and they are truly vacant. I have a daughter in third grade, and I feel a fear that I am sure that my parents didn't feel when she walks down the street to the neighbors.

What changed, of course, was the eighties myth of rampant "stranger abduction." The sad truth is that most child abductions are a part of custody disputes. So, I guess its logical that in a child-kidnapping case, Police will look at the parents. In the recent Utah child disappearance, an articles has this observation: But a report issued by the agency 12 years ago said acquaintances were responsible for 27 percent of kidnappings, strangers were responsible 24 percent of the time and family members 49 percent of the time, the Associated Press reported.

As a parent, I try to keep those statistics in mind. I try to fight the largely baseless fear that causes us to swaddle our children in cotton. I try to encourage my daughter to go outside and play. It's not easy.

Wednesday, June 12, 2002

Justic Scalia's Statist Imperative

Justice Scalia's take on the tensions between his role as a Catholic and as a judge is on-line at First Thingshere. I think the article provides a singular insight into some of the core philosophies that have shaped his judicial thought.

First, of course, is his quintessentially conservative judicial philosophy. Conservatives, I believe, are more inclined to reify the concept of law. Law is a thing. It exists out there as a thing, and it seems often to be the case that judicial conservatives are more likely to allow results they know are silly or wrong because the law dictates that conclusion. It seems in fact that they are pleased when the "law is an ass" because that stands as proof that there is a law that is something more than the positive pronouncements of judges.

Liberals, in contrast, generally view law as a nexus of relationships. Law is a tool which can be used for adjusting the relationships between legal entities. Consequently, judicial liberals are far more interested in non-legal facts. If the vice of judicial conservativism is formalism; the vice of judical liberalism is result oriented decisions.

One can see Scalia's judicial conservativism in his pronouncements that in a legal system that establishes a capital punishment system, judges can either enforce the law or resign. In other words, the law exists apart from the judge; the law is not what the judge says. Scalia writes:

If I subscribed to the proposition that I am authorized (indeed, I suppose compelled) to intuit and impose our “maturing” society’s “evolving standards of decency,” this essay would be a preview of my next vote in a death penalty case. As it is, however, the Constitution that I interpret and apply is not living but dead—or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted. For me, therefore, the constitutionality of the death penalty is not a difficult, soul–wrenching question.


The law, therefore, is not to be found within; it is to be found outside the judge.

Likewise, Scalia's observation on the attractiveness of the "living constitution" philosophy of constitutional interpretation reinforces this point:

I pause here to emphasize the point that in my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty——and if that fails, lead a revolution. But rewrite the laws he cannot do. This dilemma, of course, need not be confronted by a proponent of the ““living Constitution,”” who believes that it means what it ought to mean. If the death penalty is (in his view) immoral, then it is (hey, presto!) automatically unconstitutional, and he can continue to sit while nullifying a sanction that has been imposed, with no suggestion of its unconstitutionality, since the beginning of the Republic. (You can see why the ““living Constitution”” has such attraction for us judges.)


For me, though, the more interesting point is Scalia's implicit view on the ontological position of the State. In classic liberal theory - e.g., John Locke , Robert Nozick - the State exists because its citizens have rationally decided to surrender the moral right of self-defense they have in the State of Nature to the State for their mutual benefit. Therefore the State has no greater rights than individuals do in the Stae of Nature. Scalia disagrees with this classic liberal epistemology:

The mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals has adverse effects in other areas as well. It fosters civil disobedience, for example, which proceeds on the assumption that what the individual citizen considers an unjust law——even if it does not compel him to act unjustly——need not be obeyed. St. Paul would not agree. ““Ye must needs be subject,”” he said, ““not only for wrath, but also for conscience sake.”” For conscience sake. The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible.


This view of the nature of the State, it seems to me, is a bit reactionary. It is as if Scalia is replaying the Seventeenth Century debate between Locke and Filmer, and has Filmer win. The Constitution - enduring or living - certainly was premised on Lockean notions of the source of the State's rights - from its citizens' consent, not from divine ordination.

This philosophical orientation may explain Scalia's project on the issue of the Free Exercise Clause of the First Amendment.Scalia authored the 1990 Smith decision- which was the basis of the Guamanian Ganja decision discussed several posts below, which, according to the Oxford Companion:


The [Smith] majority opinion by Justice Antonin Scalia strictly confined Sherbert and its progeny to their facts and reecast Yoder from a free exercise opinion that protected freedom of religion into a substantive due process opinion that protected parental and family autonomy. The opinion expressly stated that the only independent protection offered by the Free Exercise Clause lay in its prohibition of laws motivated by a desire to disadvantage religion, on the theory that such laws impose an intentional burden, rather than a merely incidental burden."


Scalia's decision therefore turned back any doctrine that might have given minority religious exemptions form laws of general application.

Scalia's dissent in Romer seems to have the same philosophical basis.In Romer v. Evans, the Supreme Court knocked down the Colorado statute which had eliminated local ordinances which included homosexuals within local anti-discrimination regulations. The Court there looked at the Colorado statute as an invidious and irrational classification of a group of citizens. Scalia's dissented in Romer based upon a view that power of the people of Colorado at a state-wide level to order the legal system in their state could not be frustrated by minority claims. Scalia specifically analogized the Romer issues to the Free Exercise cases involving polygamy and drug use in which the Court has routinely decided against minority claims.

Drawing a line from his dissent in Romer to his opinion in Smith, it seems that Scalia has a self-conceived mission against the Balkanization of American society into small groups with large claims. In this day and age, that seems to be a laudable goal. It just seems odd that Scalia has to revive a discredited view of the "divine rights of Kings" to get there.

Tuesday, June 11, 2002

SAY IT NOW AND SAY IT LOUD, HE'S FROM FRESNO AND WE'RE PROUD

To quote the National Review Online "kudos to our very own Victor Davis Hanson, winner of the Newscorp Breindel award for excellence in journalism." Except those Jonny-come-latelies are trying to grab credit. This guy is from Fresno, California. He's our very own Victor Davis Hanson. Somewhere in the 1980's, Fresno edged out Brooklyn as "the town whose name you could laugh at." Fresno is the Rodney Dangerfield of America. Miniseries starring Carol Burnett. National Historic Monuments consisting of "waste reclamation facilities." Heck, the most hated Congressman in America has a residence 45 miles north of here. So get your fame- grubbing hands off of a home-grown Fresno product. Although his reputation was made years before, his real climb to national noteriety happened the Saturday after 9/11/01 when he gave one of the most brilliant extemporaneous expositions on the issues of terrorism that anyone had the privilege of witnessing in a C-SPAN presentation before a Fresno group of readers.

Sunday, June 09, 2002

Add this to the list of cases where the insanity defense didn't work

The Fresno Bee'sarticle on the opening of the Cary Stayner trial starts with the teaser "The accused killer of three Yosemite tourists was born with a flat head." Stayner brutally murdered four women in Yosemite in 1999. Apparently, Cary Stayner's defense team is trying to make lemonade out of lemons by arguing that a neurological condition limited his judgment. The prosecution pragmatically observes that Stayner tried to hide the crime and that "hiding the crime can mean he knows it was wrong."

This is a bizarre case. Stayner's brother was Steven "I know my name is Steven" Stayner, and - in one of those "six degrees of separation" moments - I casually know the father of one of the victims. He seems like a good man, who never, ever talks about Stayner, or his daughter, and who didn't need the pain that this sick s.o.b. gratuitously chose to throw into into his life. Manhunter - the original Hannibal Lecter movie - has an effective scene where Will Graham has been trying to get into the head of the psycho Red Dragon killer. His boss is concerned. Graham explains that he is sympathetic to the killer. Someone turned an innocent child into a monster. But his sympathy doesn't mean that he has forgetten the victims who were killed so that some "sick fuck" could experience some momentary, trivial feeling of accomplishment.

Saturday, June 08, 2002

Ninth Circuit holds prisoner has no right to "procreate by mail"; Noted Conservative Jurist dissents

In a case that any conservative would look at and say "well, that's obvious," the Ninth Circuit in GERBER V HICKMAN held that procreation was fundamentally inconsistent with incarceration in the case of a forty-one year old prisoner serving a 100 year plus eleven year sentence and his forty-four year old wife who was hearing her biological clock strike twelve. Conceding that the right to marry survives incarceration, the Majority also noted that various attributes of marriage - physical intimacy, cohabitation and the right to bear and raise children - do not. The Majority also refused to equate that the denial of permission to procreate by mail with forced sterilization.

The Dissent, obviously, dissented, largely on the basis of an absence of specific prohibition against artificial procreation in the relevant California prison. The Dissent also noted that the chief effect of imprisonment was constraining mobility, which apparently did not extend to the immobility of the prisoner's genetic material. What is interesting, though, is the dissent by Justice Kozinski, typically one of the constant conservative votes on the Ninth. Justice Kozinski penned a separate dissent noting that nothing in the process of artificial insemination conflicted with incarceration, California's prison regulations did not themselves preclude artificial conception, and since prisoner's fundamental rights to things like religion, right to speak etc. were not abridged, neither should the right to procreate.

Normally, my knee jerk reaction would be supportive of the ban on artificial insemination. Do we really want to foster a class of people who will instantly be deprived of the support of a father with all the corresponding social dysfunctions and welfare costs that that entails? Further, since female prisoners serving 100 year sentences are denied their right to conceive and bear children in prison, it would seem that incarceration can permissibly restrict the right of procreation. But there is Justice Kozinski's dissent, and he is one sharp guy who is usually on the right side of issues. He makes a solid point that if the State wants a prisoner's punishment to include a denial of the right to procreate by mail, then it is for the State to say as much, and not for a Court to infer through judicial fiat. This one may require a rethink.

Friday, June 07, 2002

Why the “Flying While Arab” [“FWA”] Lawsuit is simply a grab for Victim Status and is not a real lawsuit, or on this blog I can, and will, Westlaw your publicity-seeking ass.

A sentimental moment first. I remember when I was nineteen, and I was running my own Air Conditioning and Appliance Repair business to put myself through college. I was half-way through my three year college experience. I was learning the joys of paying taxes, paying for an answering service, making service calls and collecting money. Generally, I was learning the joys of honest physical labor, which was such a part of my motivation for going to law school ASAP.

And I couldn’t get service at "7-11" [a West Coast chain of stop-and-robs, which originally started as an ice-manufacturing company, the Southland Corporation, before they realized there was more money in the beer that went into the ice, than just the ice] to save my life. I remember trying to buy a soft drink on a hot San Joaquin Valley August day and having this convenience store clerk ignore me in favor of older patrons. I finally sharply asked him to wait on me - after all my money was as good as the next guy - and he told me that I was “uppity” and I should leave. I remember feeling that rage at being treated like a second-class citizen. I was making a living. I was paying taxes. My money was as green as the next guy's. Apparently, I just didn't know my place. Twenty years later, I can't drive past that 7-11 without feeling a phantom memory of the anger I felt that day. Someday someone will walk into my office with a sexual harassment suit against that store, and then old debts will be paid. [Cue insidious evil laughter.]

So, I think I have some slight understanding about how the plaintiffs in the FWA lawsuit felt. I suspect everyone has a similar story in their own historical baggage. But not everyone can sue for the experience. And not everyone should. The law does not create a legal remedy for every wrong. Sometimes we just have to suffer our indignities and cherish those experiences as part of our character formation.

I think the FWA plaintiffs are going to find themselves in that situation pretty quickly. According to the Plaintiff’s press releases, after some of the plaintiffs boarded their flight, a fellow passenger identified them as “behaving suspicious[ly].” What happened thereafter is, of course, unclear, but it resulted in their ejection from the flight.

The “what happened thereafter” part is the heart of any lawsuit. While I don’t know what actually happened on the flight, I can make a fairly accurate projection of what will happen in the lawsuit. The Plaintiffs will say that they were the soul of inoffensiveness; they were polite and patient. The flight crew, on the other hand, was wildly irrational and wouldn’t listen to their calm explanations. The defense side will present evidence to the contrary. Their witnesses will talk about how they focused on the FWA Plaintiffs’ behaviors - what they did and how they were acting. They will point out that they didn’t focus on those plaintiffs until after a passenger independently referred to Plaintiffs’ behavior and not their ethnicity as being suspicious. The tie-breaker will undoubtedly be the other passengers who probably sided with the flight crew at the time for a host of emotional reasons and will find reasons to identify “suspicious behaviors” after the fact.

The net result will probably be a fairly quick summary judgment for defendants because the law gives common carriers the discretion to make these kinds of decisions, and so long as their decision is not irrational, the carriers are privileged to make such decisions even if they were wrong or unfair.

The current operative law is 49 USCA 44902(b) which provides “Permissive refusal.--Subject to regulations of the Under Secretary, an air carrier, intrastate air carrier, or foreign air carrier may refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety.”

The issue under 44902 is who gets to make the decision, and the answer is pretty clearly that the flight crew does, so long as they have a rational basis for their decision.

In Williams v. Trans World Airlines, 509 F.2d 942 (2d Cir. 1975), Trans World Airlines invoked section 1511(a) [the predecessor to 44902] to justify a denial of passage on the basis of F. B. I . reports to the airline that the ticket- holder was a diagnosed schizophrenic and should be considered armed and dangerous. Although the airline found no weapons on the ticket-holder, Williams, it nevertheless refused passage on a flight from London to Detroit. The court of appeals affirmed a finding of no unjust discrimination, holding that the airline had a right to accept the F. B. I. reports at face value. In reaching this conclusion, the court found that a carrier's discretion to refuse passage under section 1511(a) is not limited by other laws so long as the carrier acts on evidence which "would cause a reasonably careful and prudent air carrier of passengers to form the opinion that the presence aboard a plane of the passenger-applicant 'would or might be inimical to safety of flight.' " The Williams court set forth the following test:

“The test of whether or not the airline properly exercised its power under s 1511 to refuse passage to an applicant or ticket-holder rests upon the facts and circumstances of the case as known to the airline at the time it formed its opinion and made its decision and whether or not the opinion and decision were rational and reasonable in the light of those facts and circumstances. They are not to be tested by other facts later disclosed by hindsight.”


In Cordero v. Cia Mexicana De Aviacion, S. A. 681 F.2d 669 (9th Cir, 1982) the Ninth Circuit adopted the Williams test in holding that a passenger who had been ejected because he had “insulted the Captain and crew” had a cause of action for wrongful ejection. The Ninth Circuit observed that the interests of airline safety are not undermined by requiring the articulation of a reasonable basis for the ejection.

Now, back to the facts of the case, and why I am betting against the Plaintiffs. It is significant that the Plaintiffs’ press release notes that the passenger complained about the Plaintiffs’ suspicious behavior. Further, the press release has an emphasis on their case not being about airline safety, when it obviously is. Jonah Goldberg characteristically hits the mark with his observation that the ejections occurred over the New Years holiday after the airlines were put on heightened security This is obviously closer to the facts in Williams, which involved an FBI warning, than it is to Cordero case. Thus, if the flight crews are able to point to any suspicious behavior whatsoever, and that might even be their view of the FWA plaintiffs’ answers to questions about security issues, then under the Williams test, they win at summary judgment. Further, if defense counsel are not able to pinpoint facts which would support a rational basis for suspicion, then they are not earning their $250 dollars per hour fee.

I think the FWA plaintiffs and their counsel know this. I know I wouldn’t take this case in light of the discretion given to airlines under section 44902. I also know I wouldn’t want to face a jury on this issue any time in the next five years, even if it was venued in Berkeley, San Francisco or Washington D.C.

So what’s going on? The answer is that this case is obviously being used for publicity purposes. Someone is making a grab for victim status with the concomitant place at the table of benefits and perquisites that come with being an officially recognized victim. That’s a very unfortunate commentary on a certain segment of American society. Once upon a time, a social group would make a grab for social preeminence on the basis of its contribution to society and its willingness to sacrifice and serve the rest of society. On that note, see Eugene Volokh .

Tuesday, June 04, 2002

When the rubber meets the road

I start making snide comments about religious liberty involving Rastafarians in Guam and the next thing I know is that people start having a serious discussion about whether there should be "minor" intrusions into the the Catholic sacrament of confession. FOXNews.com has this transcript from Hannity and Colmes where a guest makes the - to her - reasonable suggestion that the need to protect children is sufficiently important to outweight the confidentiality of the confessional. Then, Jeremy Lott writes this thoughtful article on "Breaking the Seal."

Now that it's my religion which people are thinking pragmatically about, I think I should tell people "hands off."

Unfortunately, I think that may just be my sentiment, and not part of First Amendment law. As I noted in the "Guamanian Ganja" case discussed two posts below, religious practices may be subject to regulation by laws of neutral application, according to the United States Supreme Court's decision in Smith. In the 1992 decision of Church of the Lukumi Babalu Aye, Inc., the United States Supreme Court held that regulations directed specifically against a religion's sacraments would not withstand First Amendment scrutiny.

Off the cuff, I have to concede that child abuse reporting laws are sort of neutral with respect to religious practices - these statutes do apply to social workers and teachers, and those professions are not particularly religious. Likewise, so long as the statute doesn't specifically identify confessions, it might get past the Lukumi decision. It occurs to me that this is why the laws of evidence include a privilege for sacramental confessions - according to Professor Volokh privileges motivated by, but not exclusive to, the Catholic rite of confession - because otherwise such confessions wouldn't be protected from compelled disclosure in depositions and court testimony.

So why am I so unsettled by the sudden realization that an essential part of an essential part of my religion can be regulated by a legislative fiat? Because, what is the purpose of the First Amendment, if it isn't to protect really important religious practices? Isn't doing what is necessary to go to heaven - which in my religious tradition can generally only happen through confession to a priest and penance thereafter - a key part of what is meant by "religious liberty." I don't think Protestants understand the Catholic attitude on confession. I remember being told as a child that even if the priest runs into my parents after confession, he could never tell them what I had told him in confession. That's some kind of powerful stuff; even your parents can't find out what you told the priest!

I think we Catholics form our views about confession from such childhood moments. I know that whenever the issue of a priest hearing a confession about murder comes up, my Protestant friends will debate the moral quandaries involved. For me, and for any Catholic I have ever spoken to about this subject, there are no moral qualms. A priest can never, ever reveal what he heard in the confessional. If that trust gets compromised, the effect on Catholicism may be no different than outright persecution.

However, as much as I would like to, I can not describe the move in Connecticut to intrude on the confessional as a "Protestant plot." I believe that Connecticut ranks as the fourth or fifth most Catholic state in the Union, and Catholic legislators were not unified in their protection of Catholic sacraments. Eventually it required a veto by the Governor and the vote of the State Senate to turn back this reporting proposal. [The lower house's vote is probably evidence of a decline in Catholic self-identity. Similarly, in California, both Gubernatorial candidates are Catholic. Governor Davis, a Catholic, has described the challenger, Simon, also a Catholic, as out-of-touch because of Simon's anti-abortion position. In other words, one Catholic is criticizing another Catholic for following Catholic teaching in a State which has a 35% Catholic population.]

In any event, I am not intellectually satisfied with the conclusion outlined here. I will try to see what constitutional protections are actually afforded to religious practices. If I find something interesting, I will let you know.
Wow. I'm a reactionary, but I have to give a low whistle in amazement at this guy. [For years I stubbornly refused to call St. Petersburg anything but St. Petersburg. Eventually, I out-lasted the Communists.] Catholic Canadian Mark Cameron at Mystique et Politique has a post on someone who is succesfully challenging [in the sense that he hasn't been thrown out - or as they would say "oot" - of court] the 1701 Act of Settlement on the grounds of religious discrimination. As you will recall, the Act of Settlement precludes the English throne from passing to a Roman Catholic, and thus had the effect of extirpating the Jacobite claim to the English crown. Presumably, the result of the suit will be to unseat the upstart Windsor dynasty in favor of the legitimate Stuart-Wittlesbach claim.

Monday, June 03, 2002

I don't know about a war against Iraq, but I'm pretty sure if it was against France there would be no peace movement.

Rich Galen continues the tradition of French bashing that has become an Internet theme with the observation: "Here's the best reason to like this year's World Cup: In the opening match, defending World Cup champion - France - lost to first-time qualifier - Senegal - by a score of 1-0." For other interesting facts about Senegal, check out Mullings.
Hokey Smokes. Someone's actually reading this. I mean someone I don't actually know and haven't brow-beat, begged or bribed.

Ms. McArdle - Live from the WTC to the left over there - has graciously linked to my Nike/ACLA comments two posts down. I'm gratified by the notice, of course; that lady sure can dissect an issue with style. On the other hand, if people are actually reading this stuff, maybe I had better invest in the spell-check, grammar-check and metaphor-check upgrade.
Some decisions you just have to read. Particularly one with the headnote "Controlled Substances Act does not substantially burden Rastafian's right to freely exercise his religion."

In People of Guam v. Guerrero [5/30/02], the Ninth Circuit reversed the Supreme Court of Guam's decision that the prosecution of Guerrero - a Rastafarian with the Rastafarian name of Iyah Ben Makahna - under the Controlled Substance Act for possession of marijuana violated his right to freely exercise his religion. Before you could say "way to go, Guam-dude," the Ninth Circuit reversed the decision, relying on Employment Division v. Smith, 494 U.S. 872 (1990) for the proposition that "neutral, generally applicable laws may be applied to religious practices, even when not supported by compelling government interests." The Ninth Circuit also held that Guam could not contravene federal drug law by providing greater personal rights than those found in the United States Constitution, largely because, as an unincorporated territory, Guam's legal system is a creation of Congress.

Three comments. First, Rastafarians in Guam? Second, since when hasn't marijuana prohibition not substantially burdened the Rastafarians? Third, I hadn't realized how light the burden was for subjecting religious practices to legal regulation. Well, there goes my idea of becoming the first Pontiff of the St. Jarvis Church of Pay-No-State-or-Federal-Taxes.

Sunday, June 02, 2002

After the revolution; Has the New Class abandoned the First Amendment?

Two cases do not make a trend. But, like the tip of an iceberg viewed from the distance, they may indicate a larger submerged judicial attitude. In Nike, the California Supreme Court in a 4 - 3 decision held that Nike’s statements in Letters to Editors and to University Administrators concerning its employment practices was not entitled to First Amendment protection because its statements were mere “commercial speech” which sought to create a commercial transaction. Nike’ statements were clearly not classic invitations to form a commercial bargain, the contents of which would clearly be subject to State regulation. In form and content, Nike’s speech appeared to be directed to a matter of substantial public concern directed to shifting public perception. Normally, the knee-jerk reaction of the judiciary is to err on the side of First Amendment protection. Justices can then pen a strong paen in favor of the right of free speech and collect the warm accolades of the press, academics and the ACLU for their courage and wisdom.

Admittedly, there are strong public policy reasons behind the regulation of commercial advertising. Law should discourage fraud, and trust in the free market is fostered by laws penalizing fraud. But the First Amendment is traditionally given an importance which trumps virtually every other policy consideration, such as national security. It would not have been difficult to define Nike’s statements as protected speech because of the elements of political speech in them. According to my Con Law professor, one trick pornographers would use to stay outside of obscenity laws was to include a brief “sex education” or political statement at the end of their flesh epics.

In Planned Parenthood v. ACLA , the full Ninth Circuit upheld a crushing damage award against anti-abortion advocates based on the content of their websites. The speech consisted of “wanted ads” with the pictures of various abortion providers. Certainly, the providers felt threatened by their exposure to a hostile audience. Bad things could certainly result. They might even have felt that the website was encouraging or advocating violence against them, but there was no evidence that the owners of the websites themselves intended to commit violence against the providers.

The website owners [“ACLA”] are frankly a boil on civilized society. Unfortunately, there is this thing called the First Amendment, and one of the well-established principles of the First Amendment is that mere encouragement or advocacy of bad things is protected unless it is “directed to encouraging or producing imminent lawless action and is likely to produce or incite such action.” Brandenburg v. Ohio (1969) 395 U.S. 444. In Planned Parenthood, there was no evidence of either ACLA’s intent to produce or encourage imminent lawless activity or that such action was likely to occur. The majority acknowledged this when it wrote: “ If ACLA had merely endorsed or encouraged the violent actions of others, its speech would be protected.”

Instead the Ninth Circuit justified its decision under the “true threats” doctrine. “True threats” - which are “statements which, in the entire context and under all the circumstances, a reasonable person would foresee would be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm upon that person” - are not protected under the First Amendment. The Court focused on facts including the murder of three doctors who appeared in ACLA’s wanted ads, ACLA members wrote briefs supporting the exoneration of the murderers on a “justifiable homicide” theory, the abortion providers were honestly afraid, etc.

The problem, however, was that ACLA did not control the means of violence, and no one claimed they did. Without that connection, ACLA was engaging in mere speech with all the effect of Voodoo. While a voodoo practitioner may want to evil, and may do symbolic things to bring the evil about, and the target may be frightened, the First Amendment doesn’t have a voodoo exception. [One has to note the sophomoric way in which the majority distinguished the ACLA case from prior decisions where a threat had not been found. For example, the majority noted that in those cases after the “threat” had been made, the audience laughed or chuckled. Well, of course. The audience wasn’t the one being threatened. I suspect that there was an equal number of abortion opponents who saw ACLA’s website as being amusing and clever.]

Again, normally Justices would err in favor of the First Amendment. So what’s going on here?

The answer has to lie in the content of the speech being regulated. Abortion is a sui generis issue - the First Amendment has been taking a beating in abortion cases for years. Likewise, the legal system has a fairly contemptuous attitude for mere “commercial speech.” After all, it’s not like it was an editorial in a newspaper, or other kinds of pure speech not motivated by profit.

Both kinds of speech are noteworthy for not being part of the agenda of the academic left. For years the intellectual left favored the expansion of First Amendment rights because of their class interests. Neo-conservatives in the late seventies postulated the evolution of a “new class” of intellectuals - journalists, academics, information workers, and others whose livelihood involves the manipulation of concepts and ideas - which developed in the latter half of the twentieth century. [See e.g, Irving Kristol's Two Cheers for Capitalism] That new class has a vested interest in an expanded First Amendment, and, by golly, the expansion of the First Amendment largely occurred after 1950.

On the other hand, there has been a recent leftist attack on the First Amendment by people who are frustrated by the application of neutral principles when what they really want is to change the world. For example, my old Law School Professor, Richard Delgado, has a book which argues that racist speech is never entitled to First Amendment protection because it’s, well, racist and no one should ever be racist.[See Must We Defend Nazis? ] In other words, a real element of the academic left truly believes that the winners and losers in the “marketplace of ideas” should be picked on the basis of content. This is a far cry from Justice Holmes dicta that the market should decide.

The “new” class is now fairly old. It is also the ruling class in its domains, e.g., the media and academic institutions. Members of the new class may now feel that a broad concept of the First Amendment is detrimental to other portions of its agenda, such as abortion, and may be willing to compromise the previous absolutist view of the right to free speech. Perhaps, this would explain the silence of the ACLU on the Nike and ACLA decisions, although it did have time to comment favorably on the decision that struck down a law that would have filtered pornography in public libraries.[See Mercury News | 06/01/2002 | Court keeps Internet filters out of libraries]
 
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