Positive Liberty

Dispatches from the Culture Wars has a primer on presidential debates. Here’s the short version:

…I was in college and coaching a high school debate team, and the Detroit News asked me and a couple of other coaches to evaluate the Bush the Elder vs. Michael Dukakis debates. I said much the same thing then as I do now, which is that they’re really not debates at all. At very best, they are little more than simultaneous press briefings. There is virtually no interaction between the candidates, who merely repeat the pre-scripted answers that their handlers have given them… those undecided folks whose votes are determined by the debates are rarely swayed by well thought out and detailed policy positions given during the debates (because, of course, there are none), but by primarily superficial things that happen during the debate. The campaign strategists all recognize this fact, which is why the negotiations for such debates focus on seemingly inane factors.

The Kerry team also wanted one of the debates to be “town hall” format, where questions are taken from the audience. Why is this important? Because Bush is notoriously bad at extemporaneous speaking and audience members are more likely to ask an unexpected question than a moderator from the major media is. So the Bush team agreed to one town hall style debate, but insisted that the questions had to be submitted in advance and that the moderator would cut off the person asking the question if they deviated from the text that they had submitted before the show begins. And yes, I find it frightening that the most powerful man in the world cannot be allowed to speak for 2 minutes without a teleprompter lest he say something boneheaded and incoherent. I find it even more frightening that so many people seem not to be bothered in the least by it.

The even shorter version: The debates are entirely bloodless. And that’s the problem. We look to debates to tell us about the character of the candidates, to give us a glimpse inside their heads. And what we get is more of the same recycled soundbites that we can already get by listening to their stump speeches.

What I’d like more than anything else is a free-for-all debate, where the moderators only step in to break up the shouting matches–or the fistfights.

Then you’d see the candidates’ judgment in action. Then you’d see whether they knew when to go for broke, when to hold back–and when it was worth resorting to downright physical violence. And I sure wish the American public knew that before the 2000 election.

I don’t plan to watch. As per my usual, I’ll read about them the day after. It will take me half the time and spare me all the worthless applause. On the off chance that something catches my eye, then maybe I’ll write about it the day after that. The American republic has been around for 228 years; it can wait another day to hear from me.

I found this link while going through my server statistics. It’s a site for plagiarists that features one of my own efforts as a search result.

On the one hand, I’m upset. On the other, it gives me pleasant dreams just picturing a high school cheat trying to explain to his teacher how he (or she!) entered into a same-sex marriage with a man.

Steal my essay, I dare you.

A while ago, I blogged about Koopa the Turtle, challenging readers to distinguish his efforts from those of Willem de Kooning. Now comes Marla Olmstead, who is four years old and whose paintings sell for thousands of dollars. It strikes me that she has more talent than either Koopa or de Kooning, at least given what I’ve seen of each.

The NYT also has the scoop on the coming gay marriage debacle of November 2.

I can at least take heart in that just ten years ago, Oregon was asked to vote on an amendment requiring the state to “discourage homosexuality.” It failed back then, and the cause has advanced tremendously in the meantime. I suppose I should be happy that we’re even fighting this battle, rather than any of the others. But I still can’t escape a certain feeling of dread.

The anti-marriage amendment sounds like it will be a difficult fight on both sides in Oregon at least. But everywhere else, similar amendments are expected to pass.

What really irritates me about all of this is how thoroughly the pro-marriage side (that’s us) has capitulated in the rhetorical battle. We are the ones who support marriage for all. We support families no matter what they look like.

They want to deny marriage, even to couples who love and support one another for life. They want to deny marriage, even when children are present and when, by their own admission, legal marriage exists solely for the benefit of children.

How are they the “pro-” marriage side? How are they the pro-family side? They are openly against millions of families. And if permitted, these so-called pro-family groups would almost certainly use the law to split these families up.

Nonsense like the following should never go unchallenged:

Kent Ostrander, executive director of the Family Foundation, a conservative group in Kentucky, said the proposed amendment was so popular that legislative candidates were fighting over who supported it first. “Everybody is running to the pro-marriage side,” he said.

Wrong. Everyone is running to the anti-marriage side. They’re running to the side that wants to exclude people from marriage, even if they have a family to support. Shame on Kentucky and its legislators.

Okay, I’m ranting. I’ll stop.

And if you have read this far, the chances are that you’re one of my devoted fans. My stats say that the mode length-of-stay at Positive Liberty is thirty seconds or less–which is true of almost all sites in the blogosphere.

The site’s average stay, though, is nearly six minutes, and this is quite a respectable number. PL’s second mode length-of-stay is at 30 minutes to an hour, while the third mode is at one hour or more.

In other words, Positive Liberty one of the “stickiest” blogs around.

It’s exactly what I was looking for when I started this site, and I have to thank you all for making it possible. As Ed Brayton has noted, it’s wonderful to have such a thoughtful community around me. You can’t directly measure intellectual depth by the numbers, of course, but it’s still gratifying that so many smart people spend so much of their time here.

And I don’t like to waste that time, so now I have a question for you.

I’m thinking very seriously about participating in National Novel Writing Month, an idea that I learned about from Dave Jansing. Here’s the concept:

National Novel Writing Month is a fun, seat-of-your-pants approach to novel writing. Participants begin writing November 1. The goal is to write a 175-page (50,000-word) novel by midnight, November 30.

Valuing enthusiasm and perseverance over talent and craft, NaNoWriMo is a novel-writing program for everyone who has thought fleetingly about writing a novel but has been scared away by the time and effort involved.

Because of the limited writing window, the ONLY thing that matters in NaNoWriMo is output. It’s all about quantity, not quality. The kamikaze approach forces you to lower your expectations, take risks, and write on the fly.

Make no mistake: You will be writing a lot of crap. And that’s a good thing. By forcing yourself to write so intensely, you are giving yourself permission to make mistakes. To forgo the endless tweaking and editing and just create. To build without tearing down.

I would also blog the results exactly as they happened, every single day.

Chances are good that whatever I produce will look a lot like my short fiction, some of which can be seen here and here.

But NaNoWriMo would preempt my usual posts on history, politics, and the life of the mind. I simply would not have time to do all of it effectively, unless, of course, I gave up on my dissertation–which I’m not about to do.

So I’m asking you, my readers, whether I should go ahead with NaNoWriMo–or stick to the usual routine. Please comment, especially if you are a frequent contributor.

Do note that this site is an enlightened despotism, not a democracy. After suitable consultation, the enlightened despot will make the final decsion. But relax: Whatever the decision, his best interests are defined as coinciding with your own.

In the comments to my post “Sandefur and Liberal Originalism,” Caleb writes,

I think I understand you to be saying that we are not bound to follow the Founders’ practical realizations of the Declaration’s principles–that we should “hold ourselves more true to their principles than even they themselves had been.”

But then why refer to those principles as their principles? Doesn’t the use of the possessive pronoun inextricably link the principles to their practices? If you really want a Rankean escape from history, then why quote John Quincy Adams or Jefferson at all?

As always, my readers ask some of the very best questions. In what sense do we share Jefferson’s principles at all? Are we ever really acting in the tradition of Locke or Montesquieu? Do we ever step in the same river twice?

I suspect my answer won’t satisfy Caleb’s doubts, but as I see it is that we’ve got no choice but to try.

First, consider that absolutely any system of constitutional interpretation will always fall victim to Caleb’s criticism, if not worse. Liberal originalism is not unique in this regard. No matter how close or how far we may range from the canonical writings of the founders, all constitutional law is going to require a process of value judgment and interpretation that historians are routinely told never to do.

Given these constraints, liberal originalism strikes me as a good balance, at least as far as I understand it. We avoid two absurdities right away: First, we escape the dead hand of the laws as they existed in 1787. Second, we have a ready avenue of argument against all sorts of equally absurd innovations. Before we even consider them, the proponents of these innovations must explain how they are consistent with the spirit of the original Constitution, guided by the experience that we have had in the meantime. In the great majority of cases, I suspect that they would not be able to do it. This is the benefit we get from adhering to the principles, rather than the letter: It steers a middle course between the two extremes.

How would the past have viewed our constitutional judgments? How will the future view them? Will they find their judgments consistent with our own? Will historians find our judgments consistent with the spirit of the past–given that they may differ on what, precisely, that spirit was?

I may be going out on a limb here, but I would say… It doesn’t matter. We are the ones who have to decide; right now, we are the republic; we are the people.

This is how I’m a liberal, and this is how Ranke’s quote applies to liberal originalism as I understand it. The choice falls to us, to the best of our understanding, and that is that. We act in a tradition, of course, and we are bound to follow the Constitution and the other laws of the land. But precisely what that binding entails–well, that’s for us to decide. No one else can do it. Every age is immediate to God, as Ranke put it.

So what does that mean for the bigger picture of constitutional law?

Oh come now… You didn’t really expect that I’d have some instant formula to give you all the answers, did you? I may be a liberal, but I’m as far from utopian as they come.

I volunteer with a gay community group, and a new member was there at the last meeting. He was an older fellow, and following a few introductions, we got to talking about our life situations: where we work, where we grew up, our hobbies, our life partners.

He mentioned that he and his partner were preparing to celebrate their thirty-first anniversary, and I congratulated him.

Then he dropped a bombshell.

As casually as anything, he told me that last week was the very first time that he and his partner had ever publicly affirmed their relationship. By this he meant that their names had been printed next to each other in the volunteer group’s very small, altogether private newsletter. Before that, there had been no recognition at all.

Here is a man, I thought to myself, who has shared his life with another man for five times as long as Scott and I have been together. They have been with one another for longer than I have been on earth. And until last week, they had not affirmed it in even the most trivial of ways.

I went from being proud of him to feeling confused–hurt, almost. I wanted to ask him why, but I didn’t dare. I think I knew. Surely their situation must have dictated silence for some reason. But couldn’t they have fought somehow? Even a little?

Do you want to know why we don’t have gay marriage? Look right here. This is it. Until we affirm ourselves, how can we possibly expect others to do the same?

This November, it seems likely that twelve state constitutional amendments will pass, denying gay marriage essentially forever in those states. As I understand them, the possible U.S. constitutional challenges against these amendments are feeble. The moment is slipping away. And we’ve got no one to blame but ourselves.

Did we ask for too much? No. We asked for far too little. We asked the government to affirm our relationships, but we failed to affirm them ourselves. That’s why we’re losing.

To conservatives, gays are like children. Come to think of it, conservatives view nearly everyone as children–with the important caveat, of course, that there is something sacred and ennobling about being a child of the great human family. But we gays are like a toddler who can’t even ride a tricycle, and we’re asking for the car keys. Or rather, that’s what we look like when we don’t stand up for ourselves.

If you are gay and in a committed relationship, then affirm it. Put a picture on your desk at work. Put both of your names on the mailbox, first names too. Wherever it is possible, insist that your partner be included, in conversation, in print, in person. Consider holding a ceremony if you haven’t done it already. Put it in the local newspaper; it isn’t hard. Wear a ring if it suits you. Get listed on a domestic partnership registry. They’re not perfect. Heck, they’re demeaning and often worthless, but do it anyway.

Resolve to do something concrete, and public, and positive. Don’t sit behind the veil of anonymity and give money to some national gay rights group. Decide how much you would give, then spend that money instead on making a difference in your own life, on making your individual relationship more visible. Lobbying groups don’t change people’s minds. Only people change people’s minds, and it happens one mind at a time.

If you are gay and single, affirm the relationships of those around you. Mention them; include them. Partnered or single, our fight is your fight. Wherever you are, don’t let the years of your life go by while the struggle is raised, and fought, and lost.

Every age is immediate to God. — Leopold von Ranke

Timothy Sandefur has been kind enough to send me a copy of his article from the Harvard Journal of Law & Public Policy entitled “Liberal Originalism: A Past for the Future.”

I’m quite impressed, to say the least.

First, Sandefur proposes that the Declaration of Independence should indeed be used to guide our understanding of the Constitution. This view is contrary to prevailing legal theory, and it has many far-reaching implications.

Sandefur argues that the Declaration is an organic expression of the founders’ classical liberal thinking and that it ought to be considered carefully when asking–as the courts so often do–just what the original intent of the founders really was.

If anything, the Declaration is far more radical in its defense of liberty than is the 1787 Constitution. It borrowed quite frankly from John Locke, one of the most radical political philosophers yet seen. And it proposed that all men were created equal–a step that even called into question the slavery upon which the new nation economically depended. The question of slavery in the Declaration develops into one of the mainsprings of Sandefur’s argument.

Did the Declaration really mean to attack slavery? I would argue that yes, it absolutely did. Sandefur argues the same, in part because Jefferson’s original draft of the Declaration explicitly denounced slavery. Jefferson classed slavery as one of the abuses that had been inflicted upon the colonies by the rapacious kings of England.

This draft was subsequently modified, but we would do well to note that Jefferson played a very active role in the new government–and if we are to look at the “original intent” of the founders, then Jefferson’s ideas must not be neglected in our jurisprudence. The Declaration, with its radical calls to universal liberty and equality before the law, must remain central to our thinking. And in any event, even the modified text of the Declaration quite arguably condemns slavery, in spirit if not in letter.

The Declaration, then, established in principle a right that did not yet exist in practice, and this has important implications for how we view American law. Did the Constitution establish a specific, empirical list of rights–or did it establish in principle the rules by which can test the claims that restrict natural rights? Sandefur argues for the latter because it is more consonant with the Founders’ understanding of limited government, particularly as it was expressed in the Declaration.

Far more frequently, though, one hears of the conservative originalist interpretation of the Constitution, which binds us not merely to the principles of the Founders, but also to their specific conclusions as they existed at the time of the Constitution’s adoption.

Sandefur calls the conservatives’ bluff by asking a probing question about original intent: Granting for a moment the conservatives’ insistence on originalism, what did the founders really intend for the republic? Was their own elaboration of rights supposed to prevail forever, or did the founders imagine that one day, we might come to understand our rights differently than they did? If the latter was their “original intent,” then most questions about the state of rights in 1787 cease to be relevant.

I’ve long agreed with this idea, although my own approach is by way of intellectual history, not jurisprudence.

It’s hard for me to imagine a group of thinkers so bold as the American founders, a group so willing to innovate–who would then turn around and inflict a static dogmatism upon all of their descendants.

The founders understood their new nation to be a place of constant experiment and renewal. Above all, they were men of the Enlightenment, who were convinced that each individual–and by extension, every age–must think for itself, never chaining itself to received wisdom. They understood the social contract not as an eternal, divinely ordained, inflexible structure, but as an ongoing negotiation among citizens, one that could become either better or worse over time.

“We give you a republic,” to paraphrase Benjamin Franklin, “if you can keep it.”

“The ancients had no ancients,” Diderot famously asked, “so what did they do?”

And our founders would likely have agreed. Jefferson famously excised all miracles from his copy of the King James Bible; as a rationalist and a deist, he considered such stories to be needless embellishments.

It is high time that we dispense with the idea that our Constitution is a miracle, and that it is subject, as it were, to a fundamentalist interpretation: The Constitution is certainly a wonderful achievement, but it was written by the people, enacted by the people–and now, the people must maintain it.

After all, we have ample reason to expect that our own judgments about the meaning of the Constitution–and about the meaning of ordered liberty–should be better than those of our founders. We have all of their knowledge to draw from, and more than two centuries of practical experience besides. Their genius was to imagine a government based on individual rights–ours is that we have lived in one.

In my view, then, the founders themselves would have rejected conservative originalism as we now have it. Sandefur takes a somewhat different approach, but one that is no less rewarding. In his phrase, conservative originalists like William Rehnquist and Antonin Scalia would argue that the Declaration was “a world apart” from the Constitution, and he proposes to demolish this idea through an examination of American law throughout the nation’s history.

At one point, Sandefur notes that some conservatives have gone so far as to suggest that the Declaration’s radical language was meant merely to curry favor with the “court of France.” Because of this, they argue, the Declaration should not be understood to have any influence on our jurisprudence.

If I may be so bold, I believe that Sandefur lets this argument pass far too easily. While he clearly disagrees, he should really have attacked it for the historical nonsense that it is.

In 1776, France was still an absolute monarchy. Ideas of social contract and natural rights were popular with many French intellectuals of the day, but the French royal ideology was emphatically based upon the divine right of kings. The French government unquestionably participated in some strains of the Enlightenment–but it abhorred this one.

When the French had their own Revolution just thirteen years later, the official machinery of the government turned emphatically against even the watered-down social contractarianism proposed in 1789. Although the French Revolution grew much more radical in subsequent years, its early manifestations had about them only the faintest hints of what was to come. And still, all major branches of the French government outside the Third Estate rejected these reforms.

The same king who reigned in 1776, along with largely the same parlement, the same nobility, and many of the same ministers–all of them agreed that even an attenuated social contract theory was unacceptable.

It is absurd to think that these officials were eager, just thirteen years earlier, to support a radical and untested Lockean experiment. Official France supported the Americans merely to spite the English, who had recently defeated the French quite badly in the Seven Years’ War. Individuals like Lafayette may well have been attracted to the radicalism of the American Revolution, but pure realpolitik was what determined the official French response.

Conservatives no doubt find it convenient to pin American libertarianism upon the French Revolution (never mind the chronology!) and thereby dispose of it. After all, anything that can be associated with France is automatically bad. But it won’t work in this case, and not merely because of the chronology. When the French intervened on the American side, they did it purely out of self-interest.

Returning to the Declaration of Independence, Sandefur suggests that it provides a powerful justification for the idea that our rights remain perpetually in our own hands–and a free people must continually re-assert and even re-invent the social contract under which they live, guided by tradition to be sure, but also by right reason and by our evolving understanding of justice.

And if you think the French connection gave the conservatives fits, well… We’re only getting started.

Three very important difficulties arise immediately from the conservative originalist position. We have already dealt to some extent with two of them: First, the late eighteenth century was no more united on any definition of rights than we are today. Second, as mentioned above, many thinkers at the time already subscribed to the notion that our understanding and implementation of natural rights might change and even become more perfect over time.

And third, there is the Ninth Amendment, which reads,

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Liberal originalists argue that above all, the Ninth Amendment disproves the idea that the Constitution granted only certain, specific rights as they were understood in the eighteenth century. One of my favorite illustrations of this idea came in the form of a quote from John Quincy Adams, who defended as follows the right of slaves to petition Congress:

A gentleman had said yesterday that he would as soon receive a petition from a horse or a dog as from slaves. Sir,… if a horse or a dog had the power of speech and of writing, and he should send [me] a petition, [I] would present it to the House; ay, if it were from a famished horse or dog, [I] would present it. [Cong. Globe, 24th Congress, 2nd Sess. 165 (1837), cited at p 502 of Sandefur.]

It would seem that John Quincy Adams understood at least some rights to inhere merely in the ability to write and to speak. Race or other intermittent obstacles have nothing to do with it, and we need not bind ourselves to the beliefs either of our peers or of our ancestors in this regard. We must discover for ourselves the proper scope of natural rights, and, if necessary, we must rethink these rights again and again whenever they are challenged.

Liberal originalists, then, share some striking features with flat-out liberals, and this worries the conservatives. Writes Sandefur,

The Declaration is adaptable to new circumstances. This resembles “living constitutionalism,” which is one reason that conservative originalists reject this interpretation. In their view, such adaptation threatens the moral stability of society… [But the view of liberal originalists] differs from the leftist notion of living constitutionalism precisely in its appeal to unchanging principles underlying the Constitution: where the leftist theory of living constitutionalism sees the principles of good government–if not the very nature of human beings themselves–as malleable and subject to progressive change, liberal originalism sees the principles of equality and the entitlement to liberty as unchanging, even though their applicability to particular circumstances might evolve. [pp 508-09]

In other words, we stand on the shoulders of giants. We see further than they, and we are obliged to correct their errors, to hold ourselves more true to their principles than even they themselves had been. And such action is not merely permitted. It’s precisely what the giants would have wanted us to do.

There is a great deal more worth reading in this article, including thoughtful discussions of John C. Calhoun, Woodrow Wilson and Carl Becker (none of whom I have ever much cared for, and all of whom make quite a poor showing here). Sandefur’s article is an intellectual feast, integrating ideas from all across western political thought. As a historian, I’m almost jealous: In my discipline, we have to limit ourselves in ways that forbid us ever to make such wide-ranging and thought-provoking analysis. Come to think of it, that’s part of the reason that I started blogging.

For instance, here is Sandefur on liberal originalism as it relates to sexual autonomy:

Because conservative originalists deny the role of natural rights under the Constitution, they claim that homosexuality can be banned simply because it is distasteful to the majority… However, the Declaration secures the concept of personal autonomy in the phrase “the pursuit of happiness.” As all people are entitled to this right, nobody, and no government, may deprive another of it… The Declaration protects the right of people to seek their own happiness, even in ways that others find distasteful, so long as they respect each others’ right to do so.(p 525-26)

The conservatives like to ask whether we can seriously imagine the founders establishing a right to sodomy in the Constitution. But they are asking us precisely the wrong question. Instead, we should ask ourselves whether the principles of the constitution establish, to the best of our own understanding, the right to be left alone–and if so, then we must ask how that right must be interpreted, in light not only of the founders’ understanding, but again of our own.

Probably the most important single sentence in the entire article is the one that links all of these disparate observations most elegantly. It is also the one that shows most clearly why the Declaration’s claims about natural rights must still be taken seriously. Sandefur writes,

Contrary to the dissembling of some conservative originalists, the meaning of the Ninth Amendment is plain: the Bill of Rights is not intended to be exhaustive, but only illustrative. (p 526)

Thus, when conservatives demand proof that a right exists somewhere within the specific grant that is the Constitution, they are in all cases asking the wrong question, and left-liberals labor in vain whenever they attempt to answer this question with an invented right to privacy that is derived from the penumbras and emanations of the various amendments. Instead, in Randy Barnett’s phrase, the presumption of liberty should prevail.

It is difficult to see how American jurisprudence would unfold if such wide-ranging changes were adopted, and I suspect that conservatives have at least some justification for their fears. Would, for instance, a later Supreme Court find that the right to universal health care, or to a living wage, or to a share in the communist workers’ paradise, must surely have been implicit all along in the Declaration or in the Ninth Amendment, unbeknownst to the Founders?

If they are so inclined, conservatives can argue against the welfare state by noting its absence in the eighteenth century. Liberal originalists have a more difficult argument to make, namely that the welfare state is absent in right reason.

Rather than point at the eighteenth century, we would instead have to show that the purpose of government–in all ages–is to protect the liberties of each citizen within their own life, and not to create material conditions for certain citizens to enjoy. We would have to show, through reason itself, that the right to be left alone is universal, while the right to receive money for merely existing is specious.

And yet, I suspect that Mr. Sandefur proposes just this sort of audacious judicial revisioning: I suspect he believes that it would do us all a great deal of good if we were forced to fall back on the theory of natural rights itself, to reiterate, elaborate, and test it, aided–though never limited–by the Constitution.

[Numerous edits throughout the afternoon of September 26. If you read the post during this process, you have my sympathy.]

Before the Internet was widely available, one often heard that viewing pornography correlated with an increased societal tendency to commit sexual assault. Most notably, Andrea Dworkin argued that pornography should be outlawed because it constitutes a kind of violence to women; she argued that this violence finds its inevitable conclusion in rape. For years, anti-pornography feminists pointed grimly to pornographic images, which sometimes reduced women to headless bodies–or to mere genitals. They read into these pictures a brutally literal symbolism and urged for their prohibition.

Opponents of pornography on the theocratic right took a different approach. Characteristically, they focused on men. They depicted pornography as one further step in the modern-day rake’s progress, a train of moral disaster leading the young man to total dissolution.

In both cases, the result was the same: These pictures do bad things. They must be stopped.

Since then, feminists have sharply divided on the issue of pornography, but the theocrats are still going strong, hoping to institute harsher anti-porn measures as the country slides further to the anti-libertarian right. (The link is courtesy of Josh Claybourn, who may or may not agree with what I argue here).

Yet hasn’t the widespread availability of the Internet made pornography much, much more available than ever before? Today I could find porn on twenty seconds’ notice, in virtually all of the places that I spend my time. I’m never that far from an Internet connection, and to tell the truth, I’ve even got a small collection of porn on the computer that I’m using right now.

Because of the great social stigma remaining against pornography, it is hard to say how many people, male or female, actually look at porn on a regular basis. But the article I just cited offers a survery with a surprising statistic: Even among the Promise Keepers, a group of Evangelical Christian men, 53% viewed pornography at least once in the week prior to the survey.

If those are the “good” guys, then you can well imagine what the rest of us are like.

I could try telling you that pornography hasn’t made me more of a rapist. I could try arguing that–in my case at least–porn hasn’t made me objectify men any more than I might already did. I could tell you that cut-off images of naked bodies in no way make me want to mutilate real human beings. But that’s purely anecdotal evidence. After all, I could be one of those rare virtuous souls who is impervious to the temptations that entrap my peers.

So let’s look at the bigger picture. Even despite the boom in Internet pornography–a trend that no one in the debate can dispute–still, the sexual assault rate has steadily declined during the last decade:

Source: Men Against Sexual Assault, University of Rochester.

To be sure, there are serious problems with these numbers. Sexual assaults are notoriously underreported, owing to an inexplicable stigma that attaches to the victim rather than the aggressor. If we shamed rapists instead of shaming their victims, then I imagine that the underreporting would stop–and rape itself might even cease to exist. Until then, the numbers will remain both unreliable and altogether too high.

In light of these difficulties, I might be willing to concede that the data is ambiguous, that the inquiry is played out, and that the findings are inconclusive.

But wait…

The exact same observations also apply to violence in the media as compared to violence in the real world. For years, we were told that young people’s exposure to media violence inclined them to be more violent as adults. People pointed to rising crime rates through the 1970s and 80s while arguing that these must surely stem frim the increasingly violent Hollywood movies and cable TV shows of that era.

Then came the advent of the video game. An entire generation grew to adulthood while vicariously shooting, blowing up, stomping on, and incinerating a wide variety of animals, robots, supernatural beings, and humans. As the technology developed, gamers got the chance to shoot, blow up, stomp on, and incinerate their friends, their family–and even total strangers that they met online. In the past few years, the amount of time and money spent on these video games has grown tremendously.

Yet at the same time, the overall level of violent crimes has decreased:

Source: U. S. Department of Justice.

The critics say that we still have to be careful. As even supporters of video games now concede, you never can tell when these games have an undocumented influence. The more sophisticated opponents of pornography, those who say something more complex than “God doesn’t want you looking at naked pictures,” make a similar argument as well.

The trouble, though, is that the undocumented but logically possible effects of an act will always remain just that–undocumented, but logically possible. No amount of evidence will make them go away, not because they are true, but because they draw their sustenance merely from within our own expectations. Arguments about the vague and generalized effects of porn or vicarious violence will always fail the criterion of falsifiablity: We could never hope to find evidence against something so vague, and as such we can’t seriously consider it in genuine social research.

Such claims look particularly dubious to me in light of my own historical work, which in part has examined the purported scandal of French theater during the seventeenth and eighteenth centuries.

Next to today’s Hollywood movies, the stage of that era was a tame affair: Theatrical convention dictated that death could appear on stage only in the rarest of circumstances; Voltaire was staunchly opposed to the idea when Mademoiselle Clairon, a leading actress of the time, suggested merely placing a scaffold on the stage. No one would hang in it, but even the object’s mere presence had horrified one of the most daring playwrights of the era. Another play was condemned as altogether too earthy, merely because a character mentioned that she “gave birth” to her legitimate son. “You must not say this,” the critics scolded. “Call him the fruit of your marriage instead.”

And even then, the sterner moralists of the era argued that the stage was far too risky for good people ever to attend. On this logic, the Church refused the sacraments to most professional stage players in France. Curiously, playwrights, audience members, patrons, theater architects, costume designers, critics, and directors were exempted.

But I digress. As Jacques-Benigne Bossuet wrote of the opera in 1694:

It does not help to reply that one might pay attention only to the singing of the performance [le chant du spectacle], without thought for the words or the sentiments that they express: For this is precisely the danger, that, while one is enchanted by the sweetness of the melody or distracted by the marvels of the performance, these sentiments will creep into the audience without their knowledge, winning the heart without being noticed.

Your entertainment may have effects, either upon you or upon society, that cannot be noticed. Therefore, we must prohibit.

Good arguments fight fairly, and sometimes we can shoot them down. Bad arguments live forever.

Now I must admit that the logic is deficient on my side of the argument, too: Just as we should not fear an effect that we can never document, so too correlation does not prove causality–and thus the inverse correlations I have shown in the graphs above do not prove inhibition either. It could well be that, all other things being equal, our increased consumption of porn and vicarious violence in recent years really does increase the chance of evil behavior, while unseen factors have arisen elsewhere to compensate.

I would suggest, though, that a venerable theory of human action may be at work in the trends that I have noted: I refer, of course, to Aristotle’s notion of the catharsis. While correlation does not prove causality, correlation plus a good explanatory model is pretty much the best that science can ever hope for.

Like so many of Aristotle’s ideas, catharsis has percolated down the centuries to become a part of the American conventional wisdom. With a Freudian detour in the early twentieth century, catharsis arrived on the modern scene more or less unscathed. And I’m certain you’ve heard it before: The best way to get rid of the bad stuff upstairs is to act it out. Preferably we’ll do it in a safe way, like watching a tragedy or playing a violent video game. Just set up your actions so there aren’t any serious consequences, then throw your superego out the window. And voilà–You’ve solved the great mystery of human passions.

Catharsis is everywhere these days: Our therapy is catharsis. Our movies are catharsis. Our literature, our grieving practices, our sports, our blogs are catharsis. Who’d have thought the average American had so much bad stuff on the inside, just itching to get out?

And given the numbers on sexual and violent entertainment, it is tempting to conclude that the average American spends the better part of his time in a fantasy world, purely at the mercy of the Id. This would be a mistake for two reasons.

First, that fantasy world shows no empirical signs of a tendency toward spilling over into everyday life. Since the dawn of catharsis itself, various gloomy philosophers have been worrying about this possibility, yet the sky has refused to fall. Bossuet was hardly alone in his era–or in any other.

Second, catharsis isn’t our only way of regulating the passions. Discipline is every bit as important, and indeed, much of western culture since Aristotle can be seen as a creative and evolving interplay between catharsis and discipline.

So many of us have the idea that as history progresses, we are constantly moving downhill in our morals, that as our civilization grows older we constantly tolerate more and more abuses–until one day everything will collapse. Now I would agree that we tolerate today many things that formerly were unacceptable: Birth control, abortion, gays, and uppity women are probably at the top of the conservatives’ list in this regard. But arguably, all of these things are perfectly legitimate; most of them genuinely ought to be tolerated–or even celebrated.

I can hear the panicked response already: “Well you’ve got to draw the line somewhere. I mean, after porn and violent games what’s next on your list to legalize?”

In reply, it should be noted that where the lines may give way in one place, still they hold fast in others. And sometimes they even advance. There are many, many things that once were commonplace, but that now we refuse to tolerate. Discipline is not steadily eroding as catharsis advances. On the contrary, discipline is simply moving into newer and more appropriate areas.

For example, we don’t tolerate nearly the level of genuine violence against women or children that once was common. Whether in ourselves or others, we exercise a righteous–and comparatively new–discipline against those who habitually beat their phyiscal inferiors.

We deplore and even find silly the very notion of dueling, a practice that was common in Bossuet’s time and for much of Christian history.

Most of us will object at least politely–if not strenuously–when someone makes a blatantly racist remark.

And while we tolerate alcohol, we systematically frown on gross public drunkenness in ways that would have astonished the hard-drinking nineteenth century.

The next time you think that civilization is collapsing, you need only reflect that in 1800, a man of the supposedly virtuous United States could drink a gallon of whisky, beat his wife and children senseless, speak ugly things about his slaves–and shoot to death any man who dared impugn his honor. Some virtue that was.

In the 1950s, this man could still probably beat his family with little fear of retribution, or speak ill of the Negroes with no worry that his associates would chastise him. Today we would count this man a brute, and now the chances are better than ever that he would find himself divorced, childless, and in jail.

In short, we have fine-tuned our mechanisms of discipline. We have arguably done the same for catharsis as well, quite possibly with a few major refinements in just the last couple of decades. With our artificial worlds ruled over by the Id, we may yet have found a powerful tool in the ongoing struggle against our viler impulses. No process is perfect, but I remain an optimist.

Paul Musgrave has returned the favor–and posted a pastiche of my writing. This, though, is a full-length post with a substantial point to make. I couldn’t have done better myself, so I’m taking the day off. Go read him instead.

Paul Musgrave and Caleb McDaniel have a series of posts about Stoicism. I have a soft spot for Stoicism because Epictetus was the first philosopher I ever read. I don’t have any burning comments, but I like to applaud politely when two excellent bloggers use the medium for a worthwhile purpose, like reminding us what’s important in life.

Daddy, Papa and Me has a post challenging the conventional wisdom that the African-American community is dead-set against marriage equality.

I found Jonathan Safran Foer’s story The Sixth Borough absolutely delightful.

And I’ve also found a promising brand-new blog called Mixing Memory. So far, it reads like a hard-left version of Positive Liberty, and I may just be adding it to my blogroll the next time I update. Bonus points for anyone who recognized the T. S. Eliot reference.

Jon Rowe has replied yet again in our ongoing exchange about private economic discrimination. I suspect from the plummeting level of comments on this topic that my readers may be getting bored, so this will likely be my last word on it. To enact any really widespread discrimination, Rowe writes, “Phil [our bigoted hypothetical] would have to get his grimy hands on the organs of the state… his outcome cannot possibly occur in a competitive market full of self-interested business-folk, without such government coercion.”

It strikes me, though, that this counterfactual is overworked. State violence was not the issue in the Jim Crow South. Non-state violence was key, and it took only a small measure of private violence to ensure that even the rational traders of the region could not do business without discriminating. Nonstate actors like lynch mobs and the Klan would see to maintaining the system, either through direct violence or through its persuasive threat. This violence also had the effect of perpetuating racism in the subsequent generations, as children grew up learning to follow the color line even before they understood what it meant.

In all but anarcho-libertarianism, it is a legitimate act of the government to suppress private violence. In the case of the South, attacking the Klan for its violent activities was fully proper, and I would even say that a plausible case could be made for economic nondiscrimination laws purely as a way of demonstrating that this private violence had been effectively suppressed–a show of force, as it were, with an aim that is arguably quite legitimate for other reasons too. Without such laws, the intimidation brought by the Klan and organizations like it would have endured–and the threat of violence has no place in the market.

Arguably, these laws may be outdated now. I suspect that if they were repealed, we would not really see the return of Jim Crow. There would certainly be considerably more racial discrimination, however, and for this I still can’t say that I would support a repeal.

Moving on, I’d now like to quote from my own reading this week, on the infinitely lighter subject… of death. It comes from John McManners’ book Death and the Enlightenment, page 126. Apologies if you’re not a history buff, but I found this quote hilarious:

The bishop of Alais, in a pastoral letter on the death of Louis XV, described the King’s soul as waiting underground in perpetual silence until the Last Trump sounds and the Ancient of Days arrives to pronounce upon his happiness or doom; this was a convenient supposition, respectful to monarchy and also enabling the good bishop to avoid deciding whether Louis XV was in Purgatory or in Hell, a difficult problem.

Curious about the PhD in History at Johns Hopkins? Here’s a quick overview.

In the first year, you learn that a rather small amount of work can expand to fit the space of almost one year.

In the second year, you learn that a nearly infinite amount of work can contract to fit the space of almost one year.

In the third year, you review the lesson of the second year.

In all subsequent years, you review the lesson of the first.

Again, this will perhaps make sense only to a few, but at least it has the virtue of brevity. And now for something completely different.

When you introspect, what do you find? Renée Descartes found a thinking being, and he called this being the self: “I think therefore I am.” David Hume claimed that his introspection yielded no evidence of a self at all: The only things he found were bundles of thoughts and emotions stacked about his mind more or less haphazardly. He claimed to find nothing that actually was the self.

So, what do you see? It is fascinating to me that two thinkers, both generally considered rational, could start with precisely the same very simple, almost ostensive question, and come up with completely opposite answers.

Pastiche, the imitation of another writer’s style, is a fine old literary tradition. It was once considered a mark of talent to be able to mimic the style of various great writers; now it is merely the mark of fandom. Proust wrote some famous pastiches, helping to win him recognition even before À la Recherche du temps perdu, the novel which simultaneously won his glory and wrecked his life.

So, in the spirit of rediscovery–and purely out of fun–I’ve written imitations of some people I’ve read recently. The opinions expressed within them may or may not be my own; this I have left as an exercise to the reader:

H. L. Mencken: It should always be remembered that when a politician declares a situation to be “moving forward,” he has just uttered a non-statement. It means absolutely, positively nothing whatsoever to “move forward.” Consider for a moment that all political figures in all of recorded time might just as glibly have said precisely the same, and you will come to appreciate the true value of this statement, which is zero. But just in case, and for the aid of clearer thinking in the future, one may do well to substitute the words “moving diagonally” whenever one hears the offending phrase. The latter is quite like the former, only shorn of its nicer onomastics.

Paul Musgrave: War may be inherent to human beings, but there isn’t anything inherent about how we wage war: You simply cannot move from some basic violent impulse to the realm of modern warfare without traversing a great deal of culture. If war were nothing but the manifestation of mankind’s innate tendencies, many things would be different than they are today. For one thing, we would never have to suffer through marching bands, which cannot be innate in any sense at all.

Dan Savage: In the battle between gays and ex-gays, we homos hold all the cards. Take the two messages, strip them to the bare essentials, and there’s no comparison:

The ex-gays say, “Be the man that you were meant to be.”

The gays say, “Be the man that you were meant to be. And have really great sex.”

See? No comparison.

Maureen Dowd: Eh. I can’t. It’s just too depressing.

And finally, a self-parody: It is interesting how liberals argue that we should never claim the right to bear arms for the sake of overthrowing a tyrannical or occupying power: They claim that a citizen militia could never effectively oppose the United States Armed Forces–or any other armed forces that might one day defeat it. It is interesting to hear them speak this way, because liberals are among the first to point out the successes–quite real, I might add–of the citizen militias in Iraq, who are now doing remarkably well with resources that are surely smaller than those that would be at the disposal of the Americans, if ever we fought a new Civil War.

…So, what do you see?

Many thanks go out to Jon Rowe, for providing my readers with a thought-provoking constitutional law seminar in miniature. I must say, though, that I have a few remaining doubts. On his own blog, Rowe gives the following example of why nondiscrimination laws are wrong when they touch on private conduct:

Say Phil asks Marcia out on a date. And Marcia thinks Phil is a real troll. So she says no and no date occurs. Has Marcia diminished Phil’s liberty? I don’t think so. Phil is left with the exact same set of possession after the rejection than he had before. But if we don’t allow Marcia to discriminate—–if we force her to date Phil when she doesn’t want to–then I think it is clear that her liberty is diminished.

This strikes me as a poorly chosen example, particularly because the original discussion was only about economic activity, not intimate relations. Indeed, when we speak of day-to-day economic activity, it is almost proverbial to say, “we’re not asking you to marry him,” or “we’re not asking you to sleep with him,” or many other similar phrases.

Further, the choice of an intimate partner is a decision that the Supreme Court itself has long declared out of bounds for government regulation, save only for a few general rules applying to marriage (age, consent, non-bigamy, and–in most cases so far–heterosexuality).

Economic activity has not fallen under the same rubric as intimate conduct, and with very good reason: The right to engage in commerce is something more or less guaranteed to all. The right to have whomever one desires in love is not.

A better example would run something like this: Phil asks Marcia on a date. Marcia refuses, because Phil has a long history of treating Marcia and all her relatives badly. Phil convinces hotel and restaurant owners in a dozen states that they should never serve Marcia, her relatives, or any of their descendants for all eternity. He does the same for the banks, the lawyers, the doctors, the department stores, the golf courses, and even many institutions of higher education. Marcia soon discovers that if she wants even a halfway decent shot at life, she may have to avoid a whole region of the country.

It seems to me that the question we should ask is not whether Phil has used the government to achieve his ends. Yes, such a use would be wrong. But the more salient question is whether Phil–acting very nearly as a quasi-governmental agent himself–has infringed on Marcia’s presumed freedom to engage in commerce.

The law rightly scrutinizes corporations more closely than individuals in this matter, because corporations have a great deal more practical power than individuals do to harm other individuals’ freedom of commerce. When an individual discriminates, it makes much less difference than when a corporation does. And when a league of corporations stretching across a wide swath of the country discriminates, the effects are even worse.

My earlier proposal about how to fix discrimination law has been shot down, and rightly so (see “Libertarians and GLBT Issues” below, especially the “Update”). But I can’t see that the government must simply stand aside as Phil and his friends do exactly the same job that a predatory and tyrannical government might otherwise do. I’m thrown back, after all these long excursions, on exactly the system that we now have. Maybe it wasn’t all that broken in the first place.

H. L. Mencken was one of the few people ever to tell the truth about retributive justice:

A keeps a store and has a bookkeeper, B. B steals $700, employs it in playing at dice or bingo, and is cleaned out. What is A to do? Let B go? If he does so he will be unable to sleep at night. The sense of injury, of injustice, of frustration will haunt him like pruritus. So he turns B over to the police, and they hustle B to prison. Thereafter A can sleep. More, he has pleasant dreams. He pictures B chained to the wall of a dungeon a hundred feet underground, devoured by rats and scorpions. It is so agreeable that it makes him forget his $700.
[From A Mencken Chrestomathy, New York: Vintage Books, 1982, p 119.]

Mencken may have been speaking from pure cynicism; I hear it was one of his weaknesses. But all the same, his observation is useful in explaining certain facts of American politics today.

Consider first of all that 42% of Americans still believe that Saddam Hussein was directly involved in the September 11 attacks. And they continue to believe without even a shred of positive evidence in their favor. Official reports from all major intelligence sources, investigations by the media, and even the President himself have all denied that Saddam Hussein or his regime were directly involved. Were there any contacts? Perhaps–if you define “contacts” as al Qaeda cells existing in Iraq without the consent of the regime.

Why, then, do so many people continue to believe?

We weren’t lied to. Or at any rate, the lie has long since been debunked, as anyone who has been paying attention should know by now.

Pure ignorance is an appealing possibility, but I can’t accept it. Remember, these people didn’t answer the question by saying “unsure” or “no opinion.” Like it or not, right or wrong, they claimed to believe.

Cognitive dissonance may well be the explanation: Inside all of us, there is a deep-seated urge to feel as though the world makes sense–as though a summation of all the facts would yield a reasonable, unproblematic picture. In the picture we imagine, we are always right, and we are always the heroes.

In reality, the past four years have been a disaster for the United States. The 2000 election badly undermined our democracy and shook our self-confidence. One year later, a foreign power successfully attacked us on our own soil. Now we are engaged in a war whose justification was dubious from the outset and whose ultimate success is even more doubtful.

In keeping with the urge to resolve all cognitive dissonance, we want very much to feel that recent events can all somehow be comfortably explained. We want to feel that we are a part of a coherent story, and that in that story, we’re wearing the white hats. We want to feel good about ourselves again.

And we want those pleasant dreams.

Thus it is that 42% of the public has welded together two unrelated evils–September 11 and Saddam Hussein’s vile dictatorship. Joining them imparts a noble purpose upon the sacrifices that we have made in Iraq. Reasonable or not, it also gives us a catharsis for September 11.

Suddenly our history makes sense again. It’s the story of vengeance, and we all know it by heart–even if Mencken was one of the very few ever to state it so flatly. To our great relief, we really are fighting a just war. And if the Iraqis suffer, we need not trouble ourselves overmuch about their welfare: Retribution brings pleasant dreams.

These 42% of course constitute the mostly ignorant and generally silent masses of the country. The educated hawks, the talking heads, the warbloggers–these people usually insist most piously upon rebuilding Iraq and bringing democracy to the middle east. In their own very quiet way, they even insist upon distancing Saddam Hussein and September 11.

But the 42% aren’t really listening. They don’t care to rebuild Iraq, not any more than they care to learn the truth about September 11. Either one would ruin the pleasant dreams.

Want proof of my outrageous assertion? Here it is: Recently, Congress learned that the Bush administration has spent no more than one billion of the 18.4 billion earmarked for Iraqi reconstruction. Where are the protests? Where is the outrage? Conservatives who ostensibly wish the Iraqis so well should be up in arms over this blunder; instead, they are silent.

If rehabilitating Iraq is our highest foreign policy priority, then why does no one care when we hear that it’s not working?

The answer is that rehabilitating Iraq isn’t our highest priority. Punishing Iraq is our highest priority–punishing Iraq for something that it did not do.

Pleasant dreams, once again.

And the tortured explanations that Mr. Bush gives to his critics, the stuff about democracy and the global struggle against emerging threats–well, we need not worry too much about that. We sensible Americans know the truth. We can feel it, in the pleasant dreams that we have.

Update, 9/21: Juan Cole says something very similar:

I have a sinking feeling that the American public may like Bush’s cynical misuse of Wilsonian idealism precisely because it covers the embarrassment of their having gone to war, killed perhaps 25,000 people, and made a perfect mess of the Persian Gulf region, all out of a kind of paranoia fed by dirty tricks and bad intelligence. And, maybe they have to vote for Bush to cover the embarrassment of having elected him in the first place.

How deep a hole are they going to dig themselves in order to get out of the bright sunlight of so much embarrassment?

NancyP asks,

Jason, what’s your take on the range of libertarian attitudes towards glbt people? eg: OK? Threat? Bashable? Don’t care? What are gays? We don’t have any of them?

It’s a good question.

Nancy does well to ask about a range of opinions in libertarian thought, because libertarians (both small-l libertarians and big-L Libertarian Party members) hold a variety of different views on GLBT issues.

Happily, most are neither so hostile nor so ignorant as Nancy’s questions (”Bashable?” “What are gays?”) would imply. But there often remains a measure of ignorance and even a palpable hostility toward the entire question of GLBT people and how to treat them.

Libertarians tend to associate all minority groups with the chase after unearned state entitlements; they are quick to act on the dangers of an expanding government, but slow to act on the dangers of a general prejudice. As such, libertarians often intervene at right angles in many civil rights causes, supporting some issues quite strongly while opposing others for reasons that sound mysterious or even sinister to the progressives. Libertarians also fight ferociously among themselves.

A little background: The Libertarian Party makes its members sign a pledge that runs as follows:

I do not believe in or advocate the initiation of force as a means of achieving political or social goals.

This statement is supposed to ensure ideological cohesion, but if I may be frank it strikes me as obscurantist and counterproductive. What, for instance, does “force” mean? Surely we aren’t talking about the scientific definition. And yet in the absence of some clear statement on the meaning of “force,” the pledge is so ambiguous as to be perfectly useless. For example,

–What if I kill an animal and eat it? Most capital-L Libertarians have no problem with eating meat, so it would appear that this is not a violation of the pledge. And yet this is clearly an initiation of force in some sense.

–What if I want to use force to terminate a pregnancy? The Libertarian Party is sharply divided here. The platform says that government should have no role in settling the question, and I heartily agree. But the group Libertarians for Life disagrees, holding that abortion violates the pledge.

–Does government itself constitute an initiation of force? Many would say yes, but certainly not all. Again the movement is divided, this time between anarchists and minarchists. The former often favor private security agencies rather than “forced” participation in a nation-state. To me, this sounds like abolishing the government in favor of the Mafia. While the one might be bad, the other is surely worse.

–Lastly, what if I want to use force to eject a criminal from my property? Some libertarians believe that even punishment and policing themselves must be non-coercive. I find this position very nearly the reductio ad absurdum of the non-initiation of force doctrine. Without an adequate definition of rights to back it up, “force” becomes whatever you’d like it to be.

By now you know that I’m quite a moderate libertarian. Many other self-described libertarians would probably not consider me one of their kind. And so be it. Now let’s turn to what all of this means for GLBT issues.

If I am not mistaken, the Libertarian Party has opposed sodomy laws ever since its founding in 1971. To libertarians, it’s a no-brainer: The government has no right to use force against a consensual relationship. Declaring so in 1971 was a bold and laudable move, but lately we have won this issue so completely that it hardly matters anymore.

In other words, the clearest area where libertarians supported GLBT rights has now gone dormant.

As I see things, the three important GLBT public policy issues today are nondiscrimination laws, hate crimes laws, and same-sex marriage. Many others exist, but like it or not, these three are the big ones for now.

Understandably, libertarians oppose these laws as they apply to private commerce. I have grave reservations about this approach and would like to propose a new one here.

In the past, when the government has intervened in the market to stop discrimination–for example, in the Civil Rights Act of 1964–the results were twofold: First, there was a tiny infraction on the freedom of association for roughly one generation of racists. The racists were treated unequally from everyone else and could not in general conduct their business as they wished.

Second, there was an enormous step forward economically and even in terms of legitimate individual rights for a large share of the population. They were less subject to violence; they were more able to vote; they could travel more freely and also pursue their associations with non-racists in greater accord with their own desires. A large group of people, composed of both racial minorities and non-bigoted white people, could suddenly conduct their business more or less exactly as they wished.

We are better off for having had this law, and I cringe whenever libertarians flatly condemn it.

Now, I recognize that the infraction against the racists was real in some sense, but I can’t bring myself to say that their rights should have been so protected in this situation as to outweigh all other considerations. Libertarians often argue, though, that preventing all government meddling with the freedom to associate–or the freedom not to associate–is far more important than any infringement of that right by, say, the racist owner of the only hotel in town. Libertarians often hold that civil rights legislation, even as it applies to racial minorities, is a violation of individual rights in favor of state-sponsored compulsion, no more and no less.

Now, the mainstream progressive position is to support nondiscrimination laws for GLBT people in both private and public sector jobs, in housing, and in services. Gays look at the 1964 Civil Rights Act and wonder whether the same good effects might someday come to them as well.

As might be expected, the Libertarian Party opposes nondiscrimination laws of all kinds. I quote from their platform:

The Issue: Discrimination imposed by government has caused a multitude of problems. Anti-discrimination laws create the same problems.

The Principle: Individual rights should not be denied, abridged or enhanced at the expense of other people’s rights by laws at any level of government based on sex, wealth, race, color, creed, age, national origin, personal habits, political preference or sexual orientation. The right to trade includes the right not to trade — for any reasons whatsoever. The right of association includes the right not to associate, for exercise of this right depends upon mutual consent.

Solutions: While we do not advocate private discrimination, we do not support any laws which attempt to limit or ban it.

Transitional Action: We support repealing any laws imposing discrimination by government, rather than extending them to all individuals.

Eugene Volokh has a couple of posts on the subject of non-discrimination laws that are well worth reading; Jon Rowe has another. Both describe themselves as libertarians, although to my knowledge neither is a Libertarian Party member.

To make a very short summary of Volokh’s position, he seems to believe that we face a dilemma: We must either 1) infringe on the liberties of racial and other minorities by allowing bigots to discriminate or 2) infringe on the liberties of bigots by forbidding bigots to discriminate. Given these options–and accepting the premise that someone will have to lose some liberty–Volokh chooses option two, albeit with some hesitation, because taking anyone’s liberty is always a bad thing.

Jon Rowe hits on a formula that I much prefer, even while he himself seems to reject it later on. Here is the formula I like:

…a code that says something along the lines of “any and all job decisions shall be made strictly on the grounds of merit” and “any behavior that is not illegal shall not serve as grounds for adverse job decisions.” Arguably gays–like smokers, pork-eaters, short people, red-heads, flat-chested women or those with breast implants, guys that are too skinny or who have a beard–would all be protected against adverse decisions under such a policy, even as they receive no special protection on the official “civil rights list” that includes race, gender, religion, age, etc.

The merits of this approach are several. First, it never runs afoul of the objection–or rather, the buzzword–that gay rights constitute “special rights.” In this formulation, the right in question would exist for everyone equally: Gays may not fire bigots, either. And I believe that this would be a good thing.

I could even see the above regime being extended to racial minorities as well. After all, it isn’t illegal to be black or Asian. One right for everyone is certainly more equitable than a list of particular rights for many different groups.

And whatever one’s prejudices may be, it can scarcely be protested that the code discriminates against any particular group of bigots; be they racists, sexists, or people who don’t like red hair. All prejudices would be equal before the law.

It would also place the burden of proof upon those who would create exceptions to this regime of economic rights. Quite possibly, there are entire classes of people against which it is proper to discriminate: For these classes (alcoholics perhaps? or pedophiles?), some special legislation would have to be passed exempting the targeted group from the blanket protections that all people typically enjoy.

Those who would discriminate would have to make their case both openly and convincingly. Perhaps, in some times and places, they would actually succeed. But these exceptions would always be recognized for what they were, and the very arrangement of our laws would challenge us to rethink the proper boundaries again and again.

I also like this approach because of its economy: It merely states that certain standards are required for anyone to become an employer. We already do this when we forbid employers from, say, torturing their employees, or when we forbid them from concealing the risks of a given job. As I understand it, most libertarians agree with these two prohibitions as they now exist.

Finally, and as regards homosexuality, Rowe’s approach has the tremendous merit of silencing those who argue that a behavior is a different thing from an inborn characteristic–and that gayness, qua behavior, is a proper target for discrimination where race, an inborn characteristic, is not. The above policy turns such an argument squarely and deservedly upon its head.

All the same, Rowe argues against this policy, suggesting that sexual orientation should be a specially-protected category after all, at least in some senses (He does not support any intervention in the private sector at all, but presumably does support equal treatment of the races and genders before the machinery of the state). I quote him here:

So why shouldn’t we protect sexual orientation with such a generic policy? For the same reason why “race” and “religion” have made the “civil rights list” but “eye-color” and “handedness” have not: Society has drawn the line–with its sodomy laws, its bans from public sector jobs, its sending to mental institutions, its reputation ruining, persecution and hatred–against homosexuals in a way that it never has against southpaws or redheads. That’s why “sexual orientation” ought to be on the list.

Having read and suggested all of the above, I must admit that I’ve still got quite an open mind on this issue. Please discuss. And if I have misrepresented, I will immediately post a correction.

Moving on to hate crimes laws, I must say that I strongly support the mainstream libertarian position: Hate crimes laws are a very bad idea. They sound to me like nothing less than thought crimes, and I despise the idea of criminalizing a thought.

“But wait,” my husband usually says, “Hate crimes laws don’t really criminalize a thought. They simply consider a thought as an aggravating factor in sentencing someone–And this happens only after he has already been convicted of a crime. These laws would never convict anyone simply for being a bigot, and no one is suggesting that they should. You’re arguing against a strawman when you talk about thought crimes.”

“But I’m not arguing against a strawman,” I often reply. “Hate crimes laws would only work against a particular class of ideas. In practice, they wouldn’t punish all hatred, but only certain kinds of hatred. That’s discrimination, and I have a problem with it.”

Consider the following example:

Imagine that my next door neighbor is white, straight, and male. He doesn’t take care of his house very well. He burns trash in his backyard and keeps piles of rusty auto parts in the front. The paint is peeling; the gutters are collapsing. The whole thing is decrepit and looks terrible.

In reality my neighbor is very neat, but this is a hypothetical. And now I hate the fellow. I pour kerosene all over his house and set it on fire.

Have I committed a “hate” crime? No.

But what if he were black, and if I were a member of the KKK? Suddenly it’s a hate crime, simply because of his race and of my associations.

And yet the freedom to associate is supposedly protected in America, and this in itself should spell trouble for hate crimes legislation. In general, the “hatred” being attacked in hate crimes laws can only be proven to exist through association, or speech, or some other protected right.

Perhaps counterintuitively, I would still argue that racially-tinged menacing is a legitimate crime. If a man builds a fire on his property, there should be nothing illegal about it. But if he burns a cross, it has a meaning that is every bit as clear as if he had made threatening phone calls to all the black people in the neighborhood.

As Clarence Thomas has observed, the symbol means nothing less than saying the words “I want to kill you.” The law should not be blind to these types of threats, whether they are directed at racial minorities or at sexual ones. Although admittedly the cases of this type seem to lead to a great deal of contextual wrangling, well, that’s what always happens in the legal system. That’s what it’s there for.

Lastly, I would support legislation stating that race, sexual orientation, and the like may not be considered as mitigating factors when a crime is committed. The so-called “gay panic” defense ought to be illegal–and for exactly the same reasons that hate crimes laws themselves are illegitimate.

And now for gay marriage. The most common libertarian argument about same-sex marriage is that all marriages, gay, straight, or whatever, ought to be private.

I find it a manifestly ill-considered idea. Even its proponents don’t seem to have thought about the consequences very much.

Imagine that marriage were “privatized” overnight. Never mind that millions of straight people would protest it. Somehow, the libertarians got their way. Now the government no longer extends any rights or privileges to married couples of any type.

Without exception, every last married couple would have to make a will designating their spouse as the heir to their property. If not, all property would revert to their blood relations at death.

Without exception, every married couple with children would have to forge some new legal agreement about child custody and decisionmaking processes.

Without exception, every married couple that received spousal benefits from their jobs would have to find some new way of designating the beneficiaries of these policies.

Without exception, every married couple would have to pay income taxes as though they were single. Often–as in the case of our household–marriage would result in significant savings. Depriving straight couples of the chance to file jointly might make the government some money; I frankly don’t know. But it’s certainly not going to win the government many friends. (And yes, I’m aware that libertarians would like to abolish the income tax. I would too. But realistically, it’s not going away any time soon, and it’s best to remember that in making public policy for the near term.)

Lastly, many thousands of people only remain in the United States legally because they hold a government-approved heterosexual marriage. These people would immediately be subject to deportation if marriage were privatized.

Possibly we could employ a grandfather clause for existing marriages, but this would effectively create two classes of marriage, a situation that I suspect the advocates of heterosexual marriage would oppose. I know I would oppose it, because it would have the effect of making marriage seem less and less important as the older and legally stronger marriages died off.

Privatizing all marriages would inflict on straight people many of the same difficulties that gay people face every day. It would be cutting off one’s nose to spite one’s face, and it would emphatically not be the answer to this particular problem, at least not right now. Until the advocates of general marriage privatization solve some of these technical difficulties–or at least until they show some effort at it–I’m going to continue thinking that gay marriage is the best answer.

Update: Jon Rowe responds. Here is a part of it:

As far as the 1964 Civil Rights Act is concerned, I agree it was a good Act. But, in my mind, it was good for one reason and one reason only: It helped to put the final nail in the coffin of Jim Crow, which was a state enforced system of discrimination. To the extent that the Civil Rights Act presently forbids private parties from discriminating, with no connection whatsoever to any kind of government discrimination, it should be repealed…

[Regarding the proposed standard of employee merit alone:] As far as I know, some governments are actually subject to such a code. I think Colorado had a very similar one when the Romer v. Evans case was decided (That’s what I was thinking of. As I remember, Scalia discusses it quite a bit in his dissent).

I’d not been aware that this was Colorado’s policy. I had thought that Colorado specifically permitted employers to fire gay employees–despite gay behavior not being illegal. This would be a direct violation of the rule under discussion. I trust Mr. Rowe for the moment, but I’m definitely going to have to look it up in the morning.

In any event, the rest of his response is quite convincing:

such a broad policy in the private sector would constitute a radical turn away from employment at will, which is the default rule (subject to quite a few exceptions nowadays—like anti-discrimination policy). But employment at will represents the maximum freedom that both sides of the employment contract possess. While I have no problem tying government’s hands with a rule that says, “merit only,” I would have a big problem with such a rule in the private sector as a major diminishment of freedom of employers. How would we, as employees like it, if we had to put forth such a reason if we wanted to leave a job?

I’m tempted to argue that economically, we ought to force even bigoted merchants to accept the buyers’ dollars, whatever color their hands may be. Is this not capitalism?

But in the end I have to agree with his analysis: This proposal would not be a good policy, for it would merely sweep under the rug all of the difficulties about defining merit that would exist in any case. There, the troubles would be resolved by bureaucrats wielding arbitrary authority–which is is proof that I was entirely wrong about how to handle the situation. (And to whoever compared me to Steven Den Beste, I demand a retraction.)

Finally, Nancy makes some excellent points about this issue in the comments.

I don’t often write about the Israeli-Palestinian conflict. Whenever I bring it up, my Inner Ethical Council always starts spouting nonsense. And it’s embarrassing to relate that nonsense to my readers. They’re among the smartest people on the web, and they don’t suffer nonsense gladly. But this time, I’m going to give it a try anyway.

“Israel,” I said to the Inner Ethical Council.

“Oh Christ, here we go again,” someone said. Eyes rolled all around the table.

“No, I mean it. I want some answers. Be creative if you have to, but do give me something. Ariel Sharon has abandoned the Roadmap, and it’s anyone’s guess what that means for the future of the Holy Land.”

“The ‘Holy Land’?” asked the Skeptic. “Have you gotten religion?”

“Oh no, it’s just… a figure of speech, I suppose.”

“So you don’t think there’s anything really holy about it.”

“Well, um… A lot of others find it holy, and I try to respect that. It’s all a part of being the urbane, cosmopolitan person that I aspire to be. I suppose I recognize, too, that some great deeds have been done there, and that maybe I should show respect for those, too.”

“Great deeds? Ever read Kings and Chronicles?” asked the Skeptic. “It’s not a pretty picture.”

“Forget Kings and Chronicles,” snapped the Humanitarian. “Read the newspaper, man. Plus ça change.”

“So how about we draw up a balance sheet?” asked the Capitalist. “How many murders does it take to entirely cancel out the holiness that is imparted on a land when it becomes the cradle of monotheism?”

“Read H. L. Mencken. It doesn’t take very much,” replied the Cynic.

“In fact,” he continued, “I say we pick up the entire country of Israel and all the occupied territories–every building, every stone, every grain of sand–and drop the whole goddamn mess at some undisclosed spot in the Atlantic Ocean. Evacuate everyone first of course, then scrape it all down to the bedrock and be done with it. It’s always been more trouble than it’s worth, so now the Holy Land is gone. There’s no sense fighting over it anymore, okay? And then we use the hole in the ground for a nuclear waste depository.”

“No, no, no,” I said. “The Middle East is probably the only region of the world where the leaders might just want a nuclear waste depository. And that’s exactly why they can’t have one.”

“I’m thinking of Locke’s Socks,” said the Empiricist. There was a pause, and he explained:

“Locke proposes a scenario involving a favorite sock that develops a hole. After a patch is applied to the sock, is it still the same sock? If it is, then, is it still the same sock after a second patch is applied? Is it still the same sock many years later, after all of the material of the original sock has been replaced with patches? What is the inherent nature of the sock’s sockiness, if not its material?”

He placed the print version of Wikipedia impressively down on the table. I tell you, hanging out with avatars is so cool.

“What is the inherent nature of the Holy Land’s holiness?” he asked. “Surely the land itself has been through an awful lot of changes over the centuries. I mean, there’s still the Western Wall, and the Dome of the Rock, and a few other ancient monuments, but absolutely everything around them has changed. Is it even the same land at all, when virtually nothing about it remains the same?”

He picked up the impressive tome once more.

“Wikipedia also writes, ‘Since the Dome is built around the Rock where Muslims believe the Prophet rose to heaven, its purpose would be defeated if moved.’ But this is nonsense, because the Rock already has moved. It moves all the time; the Earth spins; it revolves around the Sun; the people, the plants and animals, the other buildings in the quarter all come and go. The Rock has moved.“

“Nevertheless, it does not revolve,” said the Cynic.

“I’ve got a better idea,” said the Skeptic. “We leave the Holy Land exactly as it is, and build a perfect replica of it somewhere else. We could have one country for prayers, good deeds, and kindness–and another country for blowing people up on buses, for bulldozing houses, and for all the other nastiness. We’ll let everyone now living in Israel and the occupied territories choose which country they’d rather live in–not based on religion, but based on their actual intentions. Next to the question of how you act in life, the matter of where you happen to live is trivial.” He was clearly feeling his Enlightenment oats.

“Perhaps we could get the world’s religious leaders to declare that the Holy Land is just too holy,” said the Humanitarian. “That way, neither Jews nor Muslims could ever set foot in it. Both religions have some precedent for this idea; both of them have had holy places in the past where the faithful must not go, or where they can only go under highly restricted circumstances. And both teach that calamity will surely result if you defile a holy place of that type. Well, we’ve obviously got a calamity right now. And come to think of it, immigration is much less a leap of faith than suicide bombing a schoolbus.”

At this point I realized that the meeting had come totally unhinged.

And when the Capitalist gets going, oh boy does he go…

“I’ve got it!” he said. “Let’s do like the Cynic suggested, and raze every single building. Then we could chop everything to tiny little bits and sell them all as relics! Just think, you could own a particle of an actual building, one that actually stood, in the real, genuine Holy Land. You can keep it in your house, build a shrine around it, and venerate the Holy Land from the comfort of your living room!”

“And just where,” asked the Cynic, “would all of the money go?”

“Well, first we’d pay for the displaced refugees, of course. The remainder could buy food for the poor,” said the Humanitiarian. “Think of it–a Holy Land that actually does us some good!”

“I guess I’d call anything an improvement, as long as it’s not paying off the families of suicide bombers,” said the Cynic.

“Then we could commission a study on the history of the conflict!” said the Academic.

There was an uncomfortable silence. Everyone looked at one another, and I knew it was time to bring the meeting to a close.

“Exactly my point. Absolutely anything would be better, even that,” I said, and I walked out of the room, no wiser than before.

Besides offering some high praise for Positive Liberty, Ed Brayton of Dispatches from the Culture Wars has recently suggested I should support my claim that the Enlightenment, not the Reformation, was the true source of religious tolerance as we now understand it.

He asks, “Didn’t the Reformation pave the way for the Enlightenment in many ways?”

In a sense, the answer to his question is yes–but the Reformation paved the way for the Enlightenment in much the same way that the existence of smallpox paved the way for vaccination, or in the same way that Marxism paved the way for the Austrian School in the twentieth century.

And yet I often hear just the opposite: “Martin Luther… ah, he helped establish religious tolerance!”

Would that it were, but it is not.

It could be that a good deal of what I’m about to write won’t even address Mr. Brayton’s original concern; quite possibly, he shares none of the misconceptions that I’m about to attack. And on the off chance that he does share them, I will gladly look the other way if he wants to abandon them in private.

To state the key contention as baldly as possible: Christianity is more tolerant than any other world religion, and that it owes this tolerance to the Reformation.

No doubt it is a comforting belief. And in practice, both Protestants and Catholics today do tend to be quite tolerant. A few exceptions exist, but we need not consider them here. In general, one could do far worse than to live in a majority-Christian country.

But there is nothing inherent about Christianity’s tolerance. On the contrary, Christianity became tolerant almost in spite of itself, and it only did so when the other alternatives had been exhausted.

I say this not to deprecate Christianity, but because there is a grave danger in thinking that we need no longer attend to the problem of religious tolerance. In every age, the urge to intolerance presents itself anew. We must not become complacent about the freedom of conscience any more than we would take for granted the other rights that we now enjoy.

I will argue in this essay that the Enlightenment is the true intellectual origin of tolerance as we know it, and, while there could not have been an Enlightenment without a Reformation, it is a serious mistake to confuse or equate the two.

Nor do individual instances of tolerance before the Enlightenment tell us very much about the origins of present-day attitudes: Until the Enlightenment, wherever an official tolerance existed, it was almost always a particular and revocable license to practice one specific minority religion, and to do so only under highly restrictive conditions. In a sense, these were merely truces in the fighting, often agreed to simply because it was impossible to eradicate the religious minority. These early and frankly misnamed “tolerances” were in no sense predicated on the notion that an individual has a moral obligation to seek the truth for himself, unconstrained by the civil authority.

This last is what we now expect, and until the late seventeenth century, nothing even close to it could be found in Europe. It was also not until this time–the era of John Locke and Pierre Bayle–that an organized, philosophical defense appeared for the principle of general religious toleration.

But I’m getting ahead of myself. Let’s start at the beginning.

In 1520, the Catholic Church excommunicated Martin Luther. As we all know, he had been an irritation to them for the past three years. He had refused to recant his beliefs about the efficacy of indulgences first articulated in 1517; in the meantime he added complaints about Church venality, unneeded ceremonial, ecclesiastical misrule, the celibacy of priests, and a number of other theological issues.

Famously, Luther also said that every man should be his own priest and interpret Scripture according to reason, not tradition. Wikipedia attributes the following well-known quotes to him:

Unless I am convicted by Scripture and plain reason — I do not accept the authority of popes and councils, for they have contradicted each other — my conscience is captive to the Word of God. I cannot and will not recant anything, for to go against conscience is neither right nor safe.

Here I stand. I can do no other. God help me. Amen.

And now the trouble begins, for Luther’s words sound to modern ears a great deal like religious tolerance.

In reality, they were nothing of the sort. While Luther deserves real credit for his scholarship and his spirit of inquisitiveness, still he believed quite firmly that anyone who read the Bible honestly and who applied right reason would come to precisely the same conclusions that he himself had reached. He believed that anything short of these conclusions was inspired of the devil and must be eradicated by any available means. His Open Letter to the Christian Nobility called upon secular rulers to implement the Reformation by force if necessary.

Where we see this as intolerance, Luther explicitly termed it an act of charity. To understand why this made sense to him, we should look at the world as Luther saw it.

Imagine that you are in a room with a total stranger. There are only two exits from the room. One is labeled “Heaven;” the other, “Hell.” When you step through a door, you will be there–with no turning back. And the stranger desperately wants to go to Hell.

You try to reason with him, but the stranger just won’t hear it. He keeps trying to go to Hell. So finally you grab a baseball bat, crack him over the head, and drag him into Heaven. He revives instantly and is grateful for all eternity. To Luther, civil government had to be the man with the baseball bat; it had to drag the ignorant masses into Heaven whether they liked it or not.

For anyone who believes in a literal Heaven and Hell, the argument is terribly strong: No matter how much violence you may do on Earth, you are justified if you help bring more people to Heaven. If you torture them into accepting the One True Church, well, that torture lasts only for hours or days. The torture of Hell lasts forever.

On the surface, this is an obvious interpretation of almost any Heaven-or-Hell religion.

Of course, the practical difficulty was that virtually every single Church believed that fire and the sword were the fully proper instruments of salvation. As the Churches multiplied, so did their conflicts. The Peasants Revolt was only the beginning; the Anabaptists, the Zwinglians in Zurich, the Calvinists in Geneva, Henry VIII’s Church of England, and the good old Roman Catholic Church… All of them had different rituals, different theological perspectives–and a shared belief that you both could and should force people into Heaven.

In England, France, Spain, the Holy Roman Empire, and Italy, most of the sixteenth and seventeenth centuries were spent in the disastrous consequences of this one idea. To avoid being tedious, I have decided to spare you most of the details. For further reading, do consider some of the following episodes: The reign of Queen Mary I in England; the Saint Bartholomew’s Day Massacre and the Catholic League in France; and the Spanish treatment of the conversos, Jews who were forced to abandon their religion in favor of Catholicism.

(I should note, however, the recent scholarship that has tended to minimize the cruelty of Catholic Inquisitions, whose tortures, while real, were certainly inflated during the Enlightenment and afterward. The importance of the Inquisition for us remains the same: It was an official agency of the Church, tasked with creating religious uniformity. Whether they were cruel or merely heavyhanded, in no sense were they tolerant.)

Beyond the words of Luther, I can really think of only three other places where the popular misconception of a tolerant Reformation may gain some traction. The first is the Peace of Augsburg; the second is the Edict of Nantes; the third is the English Civil War.

In 1555, there arrived the Peace of Augsburg. It temporarily–but only temporarily–ended the religious strife that had engulfed the Holy Roman Empire. If there is one thing that educated people remember about the Peace of Augsburg, it is the Latin dictum cuius regio eius religio: The religion of the area is the religion of the prince.

Yet this principle did not establish religious tolerance: It left only a handful of people free to choose their own religion, and these could choose only between Catholicism and Lutheranism. All other faiths were forbidden, and the subjects were always obliged to follow their princes’ decisions.

The Edict of Nantes was hardly much better: In 1598, Henry IV of France allowed Protestants to keep churches in certain designated locations while restoring many of their civil rights. Protestants could worship only on the condition that no new churches were built and that no proselytizing occurred. Religions beyond mainstream French Protestantism were all forbidden, and Protestants still faced considerable obstacles in their civic life. The Edict itself spelled out many further restrictions, and these were periodically tightened or loosened as a way of manipulating the Protestant minority. In 1685, Louis XIV revoked the Edict, prompting a mass exodus of French Protestants. Many of these went to the places where religious toleration was already starting to appear: the Netherlands, the American colonies, and England.

Deeply flawed and temporary as it was, the Edict of Nantes bought France a measure of breathing room; it too had spent much of the sixteenth century in religious civil war. To be cynical about it, the Edict of Nantes allowed France to fight with its neighbors during the seventeenth century rather than continue to fight with itself.

At the risk of gross oversimplification–which I’ve already run quite often in this essay–the English Civil War of 1642-1649 was fought between two sides that split in large measure over official religious policy: Each side wanted to enforce its own vision of Protestantism as the sole official religion.

The result–and a quite inadvertent one–was a religious chaos, leading to a de facto toleration for many forms of Protestantism.

King Charles I’s side wished to preserve the ecclesiastical hierarchy of the Church of England, including bishops and archbishops; it wished also to retain the high ceremonial that the Church had been employing. The king and his supporters viewed their policies as moderate, because they were neither Roman Catholics nor strict Genevan Calvinists. And since they were fully convinced of the truth of their cause, they of course demanded absolute conformity from others.

The leaders of the Parliamentary opposition, though, preferred a simpler, “purified” style of worship, without images or impressive ceremonial in the Church. They even pro