Positive Liberty

For kindly responding to my comments on the Constitution’s “No Religious Test” Clause. Here are some excerpts from his post:

History: First, Jon Rowe, who had many valuable comments, asks a basic question: What was Rhode Island’s religious test during the Founding era? Let me quote from Gerard Bradley, whose article I cited in my first post: “Rhode Island, as in many church-state matters, was a special case: the Protestant monopoly there flowed from an exclusion of Catholics and Jews from citizenship, and not, precisely, from political office.” Mr. Rowe also makes a series of broader points, arguing that we should draw some significance for our historical reading from the assertion that a number of key framers were not orthodox Christians. I don’t dispute that assertion, but would say two things. First, those admittedly central individuals are not the only or even the authoritative figures here. In thinking about the historical understanding of the Clause, their views must be counted alongside the views of those whom they sought to convince — the other framers and the ratifiers of the Constitution. I have no algorithm to apply here in weighting their respective views; but my holistic reading of the history surrounding the debate over the Clause suggests to me, at least, that we should not read the Clause too broadly in light of these standout examples, especially in light of the real historical evils the Clause appeared fairly clearly to address. Second, as Mr. Rowe notes, although unorthodox, those key framers, and certainly many other framers, did not think virtue and character were irrelevant to political office; for most framers and ratifiers, religion (however broadly defined) was certainly a vital aspect of one’s character.

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Amusing!

I read all my favorite blogs through Bloglines, which means that all the articles have more or less the same format, font, color, and so forth. Sometimes it’s even difficult to tell who the author is, and that’s when my mind starts playing tricks on me.

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Charles Krauthammer — among the most readable of the remaining hawks — argues today that

Of all the arguments for pulling out of Iraq, the greater importance of Afghanistan is the least serious.

Let’s look at his reasons.

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Did you know that the federal government confiscates a quarter, or even a half, of the entire California raisin crop every year? I explain why over at PLF on Eminent Domain.

In yesterday’s WND Joe Farah failed in an attempt to “fisk” Rep. Pete Stark, D-Calif. for claiming, “Like our nation’s founders, I strongly support the separation of church and state.” Farah responded:

When I hear statements like this, from people who have been around the block a time or two, I have to wonder if the man is knowingly lying in support of his perverted beliefs or whether he is hopelessly ignorant of history.

Let me put it this way: None of America’s founding fathers supported — strongly or not — the notion of separation of church and state. None. Nada. Zip. Zilch. Bupkis.

Such a strong statement. He must really be confident that the historical record supports his side. The rest I’m going to have to handle line by line. Continue Reading »

An echo of one of the most interesting conversations I had last week.

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Tyler Cowen edges still further away from the libertarian camp, as follows:

Life without socks would be… “undignified,” but no one recommends government provision or even sock vouchers. Relative to income, socks are sufficiently cheap. There is some inequality of socks, but it seems that just about everybody — even the poor — “has enough.” We don’t even force people to buy socks for their kids.

Might there come a time when health care and education fall under the same rubric?

Yes, I know that, due to rising labor costs, health care and education might continue to eat up an increasing percentage of national income. But still, can’t “rich enough” people make do? Living in Aspen might cost half your income, but if you’re a multi-millionaire no one weeps for you.

Of course today’s poor aren’t rich enough for us to remove government aid. But when will the splendid era of libertarian freedom be possible? Today’s poor are much richer than the poor fifty years ago, and the poor of the future are likely to be richer yet. Won’t the welfare state, at some point, simply become unnecessary?

Readers, please tell me in the comments when the time will come for dismantling the welfare state.

The time is now, of course.

Today’s poor are rich enough for us to remove government aid. We already did this to a considerable extent with welfare reform in 1996. The result was by nearly all accounts a success, and I see no reason to think that we sit at any privileged point of negative marginal return on shrinking the state.

The socks argument doesn’t hold up too well either. By analogy, life without sufficient healthy food is undignified. Healthy food is also a small and decreasing share of household expenses for the poor. Indeed, overeating is a more important problem for the low-income than hunger. Yet government food aid remains, and it’s skewed heavily toward making sure that the poor eat nutritious meals, even if they don’t particularly feel like it. Why? Because doing otherwise would be undignified.

Dr. Cowen, I do say this with some sarcasm, but please, please, stop enabling the sock bureaucrats.

Meanwhile, if you want to shrink the state, entitlement programs for the poor are small potatoes and probably not worth the effort of dismantling just yet. (Ditto to earmarks; even if they are sleazier, they’re still a drop in the bucket.) The real action should be against entitlement programs for the middle class and above: They’re vastly larger and vastly more dangerous than programs for the poor. Worse, they’re morally indefensible even if we accept the morality of compulsory government aid. Which I still do not.

I know that its authors did not intend this outcome, and I know that in the seventies they strenuously rejected it. But I am inclined to think that the Equal Rights Amendment, now known as the Women’s Equality Amendment, would protect same-sex marriages under the United States Constitution.

For this and for many other reasons, I support it. I find the new name troubling, however: Nothing in the amendment singles out women, and men should clearly be included as well.

The skeptics might hope — for whatever reason — that the WEA does not lead to same-sex marriage. Yet consider the reasoning found in Deane v. Conway, Maryland’s same-sex marriage decision, which now under review. It used some nearly identical constitutional language to strike down Maryland’s gender-specific marriage law.

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I’ve noticed a blog (no links to them!) artificially boosting its own Technorati ratings: Somehow, each individual post is categorized as a “new” blog linking back to… itself! All the new posts are linked to all the old ones, while old posts are retrofitted to link to the new ones. Everything is linked, again and again, to aggregators like Digg and Reddit, complete with even more links to itself.

The payoff? Instant cyber-credibility. Until you look closer. (Warning: Google says that his page contains malware; I wouldn’t go to the actual blogger’s site if I were you.)

The externality? Well, Technorati is slowly growing unusable for anyone who gets targeted by this scammer. I don’t actually care what my popularity numbers are, so I’m not interested in artificially inflating them. I do, however, want to see legitimate conversations that my writing may have prompted elsewhere, and this information is getting lost in the noise. It’s not a huge problem just yet, but it could easily become one.

Technorati gods, are you paying attention? I somehow doubt that this is what you had in mind for your service. And is there some way I can clear this annoyance out of my WordPress dashboard? He links to Positive Liberty with every single freakin’ post, and every one of them counts as a “new” blog linking to us, even if he never actually discusses anything that Positive Liberty may be talking about at the time.

I’ve been very delinquent in my Battlestar Galactica blogging of late. Part of this was because this season was in many ways a real let-down, and in more than one instance we saw the series’ attempts to make interesting statements collapse into banality and poorly thought-out themes, not unlike the awful season 2 episode “Black Market” that I blogged about here or the slightly better sequence in which Roslin incredibly prohibits abortion as a population management measure.

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I got a call from Jim Babka of Downsize DC the other day and he mentioned the announcement of the American Freedom Agenda by a group of prominent conservatives. It’s an interesting group: Bruce Fein, former DOJ official under Reagan and prominent legal scholar; David Keene of the American Conservative Union; Bob Barr, former Georgia Congressman; and Richard Viguerie, who may not be a well known name but is probably the man most responsible for the election of Ronald Reagan and the formation of the modern conservative movement.

What makes it all the more interesting is the position they are taking: they are pushing a raft of reforms that would push back Bush’s “unitary executive” agenda and restore checks and balances to government. They are taking a strong stand against a wide range of Bush policies - the warrantless wiretapping program, the use of presidential signing statements as de facto vetoes, extraordinary rendition, the use of torture, the military commissions act, and much more. They are asking 2008 presidential candidates to sign the Freedom Pledge, the text of which I will paste below the fold:
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Paul Horwitz, an Article VI — “no religious test” — scholar, has his first post on Volokh today.

Particularly, I’m interested in why the Founders chose to ban such tests federally, and not at the state level. One reason why the original Constitution didn’t ban such tests at the state level is because, as with slavery, even if many or most of the Framers wanted to do this, the states probably wouldn’t have ratified the Constitution if it meant abolishing their religious tests which most states at that time had.

Here is how Horwitz in today’s post deals with what the Framers were concerned with in the context of state v. federal religious tests: Continue Reading »

This forthcoming law review article by University of Texas professor Tara Smith cites my post responding to Justice Scalia’s First Things article.

This is PL’s third law review citation; the first was Brandon R. Johnson, “Emerging Awareness” After The Emergence of Roberts: Reasonable Societal Reliance in Substantive Due Process Inquiry, 71 Brook. L. Rev. 1587, 1629 (2006), which cited this post by Kuznicki, and the second was Mary Katherine Hackney, Is This Apple for Teacher An Apple from Eve? Reanalyzing The Intelligent Design Debate from A Curricular Perspective, 85 N.C. L. Rev. 349, 376 n. 167 (2006), which cited this post by me.

The Cato Institute’s got a podcast with me today about the Robbins v. Wilkie case. More on the case over at the PLF on Eminent Domain blog.