::Freespace::

Libertarian Bookworm: Will return next week.

Guinn sighting: Prof. Volokh linked to this post about the Las Vegas Review-Journal citing the Harvard Law Review student note about the Guinn case. Prof. Eastman told me about the note some months ago, and I cited it repeatedly in my amicus brief. It’s an excellent note, although a bit short. My own article on Guinn just went out in the mail a couple weeks ago. Other mentions in the law reviews include Robert Ward Shaw, Comment: The States, Balanced Budgets, And Fundamental Shifts in Federalism, 82 N.C. L. Rev. 1195 (2004) (“Internal inconsistency in a constitution is quite literally the precipice that can threaten the very viability of a constitutional government, given its dependence on the constitution as the immutable first principle on which the government is founded.” Id. at 1226.) There’s also a column about it in the current Federal Lawyer, by Jason Max Kerr (51-APR FEDRLAW 22) (“...the Nevada Supreme Court’s decision seems to have had little justification. The Nevada Supreme Court failed to cite a single decision from any other court (even by way of analogy) in support of its holding that a clear and unequivocal constitutional requirement is merely “procedural.” The Legislature’s passage of a tax increase with a two-thirds majority just days after the Nevada Supreme Court’s decision seemingly eviscerates its stated justification for the decision—that the Legislature was hopelessly deadlocked.”)

Countdowns: It’s April 11. You know what that means? Only 24 years, two months, and twelve days more until racial discrimination by the government becomes unconstitutional.

Flying to a higher strain: I take it this means we’re never going to get Thomas Krannawitter’s promised explanation (for which I’ve been waiting eagerly) of why gay marriage is bad as a matter of nature and reason. Well, good. I like it when people rest their arguments for bad propositions on irrational arguments from tradition and authority. Makes it easier for my side.

That’s it?: Well, there’s the text of the August 6, 2001 memo. According to some, this memo gave President Bush enough warning that he ought to have “done something” to prevent September 11, and his failure to do so is morally blameworthy and politically damning. In the midst of the hectic schedule that any President has, and after years of things like the Cole bombing and the bombing of the World Trade Center and the African embassies, which received practically no retaliation from the Clinton administration, Bush receives a memo that says, inter alia,

Al-Qa’ida members—including some who are US citizens—have resided in or traveled to the US for years, and the group apparently maintains a support structure that could aid attacks.

Two al-Qa’ida members found guilty in the conspiracy to bomb our Embassies in East Africa were US citizens, and a senior EIJ member lived in California in the mid-1990s.

A clandestine source said in 1998 that a Bin Ladin cell in New York was recruiting Muslim-American youth for attacks.

We have not been able to corroborate some of the more sensational threat reporting, such as that from a [redacated] service in 1998 saying that Bin Ladin wanted to hijack a US aircraft to gain the release of “Blind Shaykh” ‘Umar ‘Abd al-Rahman and other US-held extremists.

Nevertheless, FBI information since that time indicates patterns of suspicious activity in this country consistent with preparations for hijackings or other types of attacks, including recent surveillance of federal buildings in New York.

And on the strength of this he was supposed to do…what, exactly?

Update: Well, apparently, this memo “very clearly is a warning of an attack in the United States.” But an honest reading shows that it is “very unclearly a warning of an attack in the United States.” It is utterly vague; speaks of “federal buildings” being watched in New York, rather than the World Trade Center; speaks of hijackings, not of suicidal crashes, and gives no locations for these possible hijackings. Nearly every word in this memo could have been written twenty years earlier. I’m not a fan of George Bush, but it is highly misleading to characterize it as “very clearly a warning of an attack in the United States.” What it was was a continuation of a warning of which any reasonable person already knew, with no indication of greater imminence or increased danger. But I guess people see what they want to see.

Showmanship: Weird Al Yankovic’s parents were found dead on Friday, from carbon monoxide poisoning. The show must go on, and Yankovic went on stage Saturday, which I admire. Poor guy.

The draft: Joshua Harris is certainly right that the draft is bad military policy. But it’s practically suicidal politically. The lefties have a major problem in portraying this war as some sort of evil military-industrial complex conspiracy: namely, the military is voluntary. They can scream about imperialism and say Americans have been lied to and blah blah blah, but it’s much harder for them to make the analogy to Vietnam here. But if we were to start forcing people to go off to the Middle East—that makes their complaints a lot more convincing. The draft would be one of the stupidest things that the pro-Victory side could possibly do.

Dodd: It goes without saying, but Nicholas Provenzo is absolutely right.

Easy question: Simple. You just charge the guy five bucks each time, and when he runs out of money you’ve reached your equilibrium.

Seriously, though, he’s a different person after the removal of the memory. Wouldn’t adding a memory carry different ethical or contractual obligations than removing one?

Green Acres: Did you see the episode of Green Acres that was on TV Land tonight? The plot centered around Oliver’s discovery that there was a law that prohibited him from chopping down a Christmas tree that was growing on his property. Apparently in 1966 the notion that there might be a law prohibiting people from chopping down their own trees on their own land was so ridiculous that it could constitute a major plot point in Green Acres.

Getting old: The Lochnermobile passed 50,000 miles today.

Oh, but the good news: I get to have fries this weekend! I made it!

Busy bee: Blogging will probably be light for a while. Here’s my workload at present, in order of importance:

-drafting complaints for two new federal district court cases where I’m lead attorney
-drafting an amicus brief on the merits in the Supreme Court
-perhaps drafting amicus briefs on two cert petitions in the Supreme Court
-preparing a memo on legal theory
-preparing press materials for the two trial court cases
-finish last edits on two law review articles slated for publication
-finish preliminary edits on two law review articles going out to editors
-two book reviews in non-legal publications
-a presentation to a reform group on Monday
-a presentation in Las Vegas next month
-doing research on a possible eminent domain case
-oil change on the Lochnermobile
-blogging
-much personal crap

Not much to some of you veterans, and some of you first years at big name firms, but it’s a lot to me.

Everybody’s an atheist now: Ha, ha, how silly... Hm?

Ashcroft and censorship: I definitely am hostile to censorship or regulation of naked women. I apologize if it appeared that I was hiding behind anything.

New Zeland socialism: An unusually insightful article about business regulations in New Zealand. Best line: “Like other socialist governments around the world, Labour is not driven by the country’s greater good, but by more powerful ideological forces—in this case, the demands of a trade union movement that elicits industrial relations favours in return for financial support.”

Entrepreneurs: They’re crazy, the lot of ‘em. I love them all. Apparently you can take helicopter in to visit Napa Valley wineries. Well...not anymore.

Responding: Does anyone really think that Bush should have, or could have, “responded” to the bombing of the U.S.S. Cole? That occurred in October of 2000, under the Clinton Administration. If Bush had come into office and just started some kind of response—realistic or cosmetic—to the U.S.S. Cole bombing, the press would have leaped on him and started screaming “warmonger!” And if he had ignored that, and al Quaeda had retaliated to such a response (as would certainly have been the case), everyone would say that Bush had started a terrorist war. Bush could not, as a political matter, have responded to the Cole—that was Clinton’s responsibility, and he blew it.

Merriam: Thomas Krannawitter’s been reading Merriam’s History of American Political Theories. He’s right that Merriam writes approvingly of the abandonment of natural rights theories, and that’s bad. But Merriam’s frankness about that abandonment, and his very precise and accurate grasp of the theories involved—and his excellent understanding of Calhoun’s political views, in particular—make Merriam’s book very much worth reading. I recommend it very highly.

Caesarian case: Prosecutors have dropped murder charges against the woman who refused the Caesarian section.

Stevens speech: This sounds like it must have been very interesting.

Ah, Condi: I have the worst crush on Condoleezza Rice. Did you see that picture of her in the shorts? Oh, man. How sad that this “hearing” she was sent to was just nothing but a symposium of blowhards. But from what I heard, I think she totally kicked ass.

E-state of nature: Now that is a weird story. But note that it isn’t a good experiment on how people would really behave in a state of nature, because they don’t run the risk of actual physical harm or death in the sim-world. That, added to the boredom that Walker mentions, makes a major difference.

That’s what we elected ‘em for: The Bushies going after adult porn.... Phew! Thank God John Ashcroft is here to save us from ourselves. You know, those of us who believe in freedom, all just want to have sex with dogs.

Some Holocaust reflections: I just finished watching The Pianist, which I’d not seen before. I usually avoid movies and documentaries about the Holocaust, because I find them so extremely disturbing, and of course The Pianist was particularly harsh. But it was compelling, to say the least. It gives me four thoughts.

1) It is absolutely incomprehensible to me that today, human beings—intelligent, reasoning, respected people—can look at such things, knowing that they really happened, (and, what’s more, that the Soviet atrocities really happened, and were ten times as bad)—how can people look at these things and say that morality is all relative, and that these things are not absolutely, unqualifiedly, humanly, wrong. Not wrong because of our prejudices, not wrong because we’re brought up to think that they’re wrong, but truly and actually wrong. How can someone look at these things and say that the will of the majority is not subject to moral law? How can they look at these things and say that whatever a society chooses to adopt is, ipso facto right? Back in the 1850s, there were people who said that slavery, too, was not truly and actually wrong, but that “the people” ought to be able to decide whether to have slavery or not. Lincoln responded that

One would start with great confidence that he could convince any sane child that the simpler propositions of Euclid are true; but, nevertheless, he would fail, utterly, with one who should deny the definitions and axioms. The principles of Jefferson are the definitions and axioms of free society. And yet they are denied, and evaded, with no small show of success. One dashingly calls them “glittering generalities”; another bluntly calls them “self evident lies”; and still others insidiously argue that they apply only to “superior races.” These expressions, differing in form, are identical in object and effect—the supplanting the principles of free government, and restoring those of classification, caste, and legitimacy. They would delight a convocation of crowned heads, plotting against the people. They are the van-guard—the miners, and sappers—of returning despotism. We must repulse them, or they will subjugate us.

Yet here we are, a century and a half later, and still our intellectuals tell us that the principles of Jefferson—that all men are created equal, that they are endowed with inalienable rights, that no just government may trample on these rights—they tell us that these things are but fictions, and that all political power is simply force, to be used as the majority decides. Both conservatives and liberals tell us this. Even soi-disant libertarians tell us this. The liberals tell us that the state may take the property that you have worked all your life to buy, and not pay you for it; that you must go to work and give up the earnings of your labor to the government to give to people who don’t want to work. The conservatives tell us that the state may send its armed agents into your bedroom to drag your loved ones from your arms, because God has told them that this is right. The so-called libertarians tell us that it is none of our business if thugs in other countries want to beat their women and rob their people and grind the life out of their dissenters and stunt the minds of their children. The world is mad. It has been mad, perhaps, from the beginning. There’s a scene in The Pianist where one character, waiting for the train that will take him to the camps, is reading Shakespeare’s Merchant of Venice, in which Shylock, the Jew, says,

He hath disgraced me, and
hindered me half a million; laughed at my losses,
mocked at my gains, scorned my nation, thwarted my
bargains, cooled my friends, heated mine
enemies; and what's his reason? I am a Jew. Hath
not a Jew eyes? hath not a Jew hands, organs,
dimensions, senses, affections, passions? fed with
the same food, hurt with the same weapons, subject
to the same diseases, healed by the same means,
warmed and cooled by the same winter and summer, as
a Christian is? If you prick us, do we not bleed?
if you tickle us, do we not laugh? if you poison
us, do we not die? and if you wrong us, shall we not
revenge? If we are like you in the rest, we will
resemble you in that.

I daresay Shakespeare understood more about equality and morality than most of our esteemed law students and moral philosophers.

2) In a related vein—today, in the laogai of China, thousands, perhaps millions of Chinese are laboring away in prison camps making locks and handbags and whatnot for American corporations to sell to American consumers who think nothing of their support for slavery. And I am one of them. What’s more, most of my fellow libertarians tell us that it is good to trade with the Chinese, that doing so actually helps the prisoners in the laogai. Is this true? I don’t know. Every other day I change my mind. Yet how could any one of us boycott Chinese-made goods, even if we wanted to? It would do no good anyway to try. And yet there is blood on our hands. Some blood, anyway.

3) How can anyone, after a century like the one that just ended, ever give government the benefit of the doubt in anything? Ever? How can anyone trust any committee or board or commission or officer to ever do anything right without constant, unflinching scrutiny and publicity? How can anyone ever say that the majority can be trusted, or that a board or committee is better equipped to deal with anything? And yet, of course, I know that to some degree, we must trust government...if men were angels, no government would be necessary; if men are devils, no government is possible.

4) Thank God for the Polish. Are they the most amazing people or what? From Copernicus to Frederic Chopin to Tadeusz Kozkiusko to Joseph Conrad to Jacob Bronowski to Karol Wojtyla. Their nation has died and risen again and died and risen again; they are really an awesome nation, and have a right to be proud of their history.

Grammar: Mr. Morgan says that what he’s driving at is, is there such a thing as being “right”? If there is no standard by which grammatical usage can be considered right, so long as it’s (so to speak) procedurally legitimate, then isn’t that the same as saying that there’s no standard by which law can be considered right so long as it’s procedurally legitimate?

But there are such standards, and they don’t have to be mystical. The standard arises from the nature of the thing itself. At least one standard with regard to grammar is, is it comprehensible? This is a “rightness in grammatical prescriptivism” which “goes beyond merely indicating what patterns in language are dominant.” Yet it is a legitimate, structural, standard—it isn’t imposed on language from some above, or by some a priori laundry list of criteria for languages—it arises from the language’s nature. Language is something which is to be understood, so the degree to which language is comprehensible is a standard by which particular languages can be judged more or less fit for their purpose. If you landed on the planet Marklar, where every noun is the word “marklar,” you would find that language useless, by the standard of languageness. (Again, one need not imagine that languageness exists metaphysically, only that it exists epistemologically.)

You ask yourself, what’s the purpose of language? What is its nature? And then you assess a particular language by those standards.

With law, you ask, what’s the purpose of government? What is the purpose of law? And then you assess a particular law by those standards.

If a law contradicts the very purpose of government, then it loses its character as law, and becomes a mere exercise of will. As Madison explains in Federalist 51, “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger….” When a faction unites and uses the government to oppress its enemies, then the law has become just another tool of oppression, rather than law—and as such it must, necessarily deprive people of the due process of the law. This is what substantive due process is all about. In one of the greatest Supreme Court decisions ever, Loan Ass’n v. Topeka, 87 U.S. 655, 663-64 (1874), the Court adopted the Federalist 51 rationale when it noted that “[t]o lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative forms.”

Anyway, so there you go. Grammar and substantive due process.

Huh?: From Laurence Tribe, American Constitutional Law 1266 n. 90 (2d ed. 1988): “Affirming a constitutional right of conscientious objection would be especially appropriate since such a right was only mysteriously left out of the Bill of Rights. The Committee as a Whole defeated an attempt to strike from the Bill of Rights a clause exempting religious conscientious objectors from service. Inexplicably, the clause was not included in the Bill of Rights finally approved. 1 Annals of Gonc. 749-51 (1789)....”

I have no problem with the idea that such rights exist as natural rights reserved from interference under the Ninth Amendment, but to find the argument for the existence of such a right is buttressed by the fact that it was, for unclear reasons, not included in the Constitution seems a little cockeyed to me.

Clarification: On reexamining my long post about grammar and natural law, I see it’s a bit confusing, and perhaps contradictory. What I’m trying to say is this: when it comes to natural law ethics—and, consequently, natural law legal theories—we’re talking about how our social and legal practices are consistent or inconsistent with the requirements of the human personality. The human personality, we natural law types believe, gives rise to certain universal moral needs—certain things will always contribute to human flourishing and other things will do the opposite. This means that there is an objective standard with which social or legal rules may be compared; the degree to which they’re consistent with that standard will determine their legitimacy as a matter of natural law.

When it comes to grammar, is there such an objective standard? There might be—grammar appears to be, in some ways, inside the child’s mind, as the Zimmer, Dennett, and Blackmore sources I cited explain. On the other hand, these standards are probably pretty basic—they say that using a present tense when you mean a past tense is incorrect, but it doesn’t say that “went” is preferable to “goed” as a matter of word-choice. There’s a lot of “play in the joints” between the objective grammar requirements and the rules a language adopts—just as there’s a lot of “play in the joints” between the requirements of the human personality and the rules a society adopts. A culture might adopt “goed” as the past tense of “go,” just as they might choose the dollar instead of the deutschmark. But there are still objective standards beyond which these rules may not go—inflation works, inescapably, on both dollars and deutschmarks, and grammar works on both English and German.

So there are objective standards, but there are also a wide variety of grammar rules which are consistent with those standards. That’s what I was trying to say.

Wedding bells: Congratulations to Prof. Marston, who got married recently. (And Sarah, you notice that he didn’t stop blogging.)