November 07, 2010
No Comments? No Comment
J. David Velleman: November 7, 2010
I will have no comment on the new policy against allowing comments.
June 09, 2006
DeLay's history lesson
Don Herzog: June 9, 2006
The press is chortling over Tom DeLay's farewell to the House of Representatives. DeLay congratulated himself for standing up for freedom and dignity; he regretted only not fighting harder. But what caught my eye was this comment, courtesy of the Congressional Quarterly:
Liberalism, after all, whatever you may think of its merits, is a political philosophy and a proud one with a great tradition in this country, with a voracious appetite for growth.
In any place or any time on any issue, what does liberalism ever seek, Mr. Speaker? More — more government, more taxation, more control over people's lives and decisions and wallets.
You'd never dream that liberals fought to stop the state from meddling with religion. You'd never dream that they campaigned against such intrusions as the hearth tax, which required the tax collector to burst into your house to count up the fireplaces. You'd never dream that liberals championed the right of consenting adults to do what they want in their bedrooms.
DeLay might be in the clutches of a wildly polemical misreading of LBJ's Great Society. Or he might be throwing a smokescreen over the social agenda of some of today's conservatives, aghast at the thought that the state has nothing to do with religion or consensual sex. Let's just hope he doesn't decide to teach history or political theory for his next job.
May 24, 2006
they've gotta be joking
Don Herzog: May 24, 2006
Late-breaking news flash, dateline 5 January 1642 (no, that's not a typo), the Journal of the House of Lords:
A Message was brought from the House of Commons, by Mr. Nathaniel Fynes:
Message from the H. C. about the King's coming to their House, to demand some Members.
1. To acquaint their Lordships, that Yesterday the King came to the Door of the House of Commons with armed Men, and came into their House in Person when the House sat, and demanded some of their Members, which they conceive is a high and great Breach of the Privileges of Parliament; therefore they thought it fit to give their Lordships Notice of it, as a Breach of Privilege, for it may concern this House likewise.
The hapless Charles I had hoped to arrest some of his leading parliamentary opponents for treason; civil war would break out later that year. This quaint episode was tucked away in some cobwebbed corner of my brain. Who would have thought today's Congress could make it surface?
May 06, 2006
Government and Religion
Steven Shiffrin: May 6, 2006
On Prawfsblog, Rick Garnett takes
the view that: “I certainly share Marty [Lederman]’s (and
Madison's) concern about religious faith being reduced to a convenient means for achieving the government's ‘secular’ ends. That said, I'm not sure why it should be unconstitutional -- or, in any event, why it would be ‘profoundly disturbing’ -- for the government, as a general matter, to take, and act on (in non-coercive ways, of course, and consistent with the freedom of conscience), the view that ‘religious transformation [and] faith’ are good (when freely embraced).”
It is not clear to me that an announcement by government that religious faith is good without any accompanying action is unconstitutional though I think we would have a better Constitution if it were.
I think it
might well be constitutional because it is constitutional for the government to
put “In God We Trust on the Coins,” to say “God Save the United States and This
Honorable Court,” and to issue a Pledge of Allegiance “Under God.” I think
these practices affirm religion over non-religion and monotheism over
non-monotheism. And I think that claims that the motto, the prayer, and the
Pledge are non-religious lack integrity. I argue this in The Pluralistic Foundations
of the Religion Clauses, 90 Cornell L.Rev. 95 (2004). Michael Perry also argues
this in a forthcoming article in
St.Thomas and I believe he has also expressed the view in print previously as well.
I think a government statement to the effect that religion is good might cross a line in it that might be encouraging religion, and that is unconstitutional. I certainly do not think that government is entitled under the Establishment Clause to proselytize (thus intelligent design can not be taught in the schools) and it is not entitled to say what God has to say about any subject (it should be inappropriate for government to post versions of the Ten Commandments).
its constitutionality, I would find it disturbing for government to announce that religious faith is good, let alone
to act on it. First, I think government neutrality on this subject is more
respectful of citizens who disagree. I do not believe that a person’s religion
or lack of it should have any bearing on their relationship to the state.
Statements like these including “In God We Trust” mark out two classes of
citizens: those who do not trust in God are not part of the “We.” They are
marked as outsiders. Just as important, I do not trust government to help
religion. I believe that close ties with government have hurt the Church in
Close ties with government risk alliances with corruption and dependency. I do not maintain that phrases like In God We Trust have hurt religion much (though it has robbed the phrase of spirituality, and has married religion with money at the same time it asserts a theological proposition), but it is hard for me to imagine that they help. It may be that demagogic politicians might try to curry favor by saying that In God We Trust needs to be put on the currency or to forge alliances with merchants in highlighting Christmas – a special form of blasphemy. But I believe religion can get along quite well (I am sure Rick does too) without government announcements that religious faith is good.
There is a special irony here. Religious conservatives ordinarily are suspicious of government in a broad swath of areas, but they seem comfortable with government promoting religion (I have no basis to assume that Rick is part of this irony). I am genuinely curious as to why.
April 18, 2006
court-bashing fairy tales
Don Herzog: April 18, 2006
I'm on all these right-wing email lists. No, I didn't sign up. Someone else signed me up, shortly after I started writing for this blog. Hey, if you're reading this and you're the one who did it: thanks! it's been tons of fun.
Some of my more overheated email comes from the tireless Bobby Eberle, who runs www.gopusa.com. Today Mr. Eberle graced my overstuffed inbox with two, count 'em, two messages. I clicked on the top link in the first and got sent to a "news story" reporting on the sentiments of John Whitehead, lawyer and head of the Rutherford Institute. I confess I was startled by this understated claim:
The central issue in the debate, the pro-family legal advocate contends, is the question of whether Christians are going to be able to say Jesus' name in public in America. "And if you want to be able to do that," he says, "you're going to have to fight the cases."
March 12, 2006
slow news day?
Don Herzog: March 12, 2006
Today's front-page banner headline from the Detroit News screams, PROFESSORS PAID NOT TO TEACH. I confess I was briefly puzzled: wow, I thought, some people teach so badly that they get paid to stay out of the classroom? Okay, so I hadn't yet had enough caffeine. I quickly realized that the actual story is about sabbaticals. The state's public universities have different sabbatical policies. But a routine policy runs this way: for every six years of teaching, you may apply for either a year off at half pay or a semester off at full pay.
The News reports that about $23 million a year goes to funding these sabbaticals, and they remind the reader that in-state tuition has been steadily climbing. Yes, they acknowledge, public universities have lots of revenue sources besides tuition and allocations from the state. But still....
There's no point huffing and puffing about philistines in response to such stories. If public universities can't tell a persuasive story about what they're doing, they should properly expect to answer to their (partial) paymasters.
February 17, 2006
Gerald Dworkin: February 17, 2006
A recent New York Times has a quote from Steven Levitt, the freakonomics professor.
February 16, 2006
Academic Freedom, Catholic Education, and the Vagina Monologues
Steven Shiffrin: February 16, 2006
Freedom is freedom for truth. Error has no rights. This was the perspective of the Catholic Church for many centuries. It was used to support censorship and persecution in many countries. The same perspective was employed by Protestant countries for the same purposes and by non-religious dictatorships. The freedom was the same; the truth was different.
At least with respect to the actions of government, Vatican
II changed the perspective of the Church. Vatican II respects the dignity of the
individual and his or her freedom to make religious choices. It respects the
right of individuals to choose error, but hopes to lead them toward its
conception of truth. Liberal Catholics believe that individuals should enjoy
the same freedom with respect to Church teaching. They should, for example,
have been free to maintain that religious freedom was demanded by appropriate
conceptions of human dignity when Church teaching was to the contrary. Traditional
Catholics believe that the freedom publicly to oppose
The question of what it should mean to be a Catholic university gets much discussion in Catholic circles. Among other things, I think such universities should be able to assure a dominant presence of Catholic faculty in relevant subject areas. But I do not think it should be the goal of the administration of such universities to eliminate all error from their campuses, nor do I believe any administration is committed to doing so. Nonetheless, I do think the Church has a bad record in this regard. Charles Curran should be teaching at a Catholic university; so should Hans Kung. The point is not that Curran and Kung were right (on most points I think they are); the point is that their perspectives need to be discussed and debated in a Catholic university. That debate will be sharper if the best advocates of their position are in Catholic universities.
I have two points to make about the Vagina Monologues which has most prominently been restricted at Notre Dame. First, if you want to encourage students and members of the general public to see the Vagina Monologues, tell students they can not have the show on campus or otherwise limit the ability to see the show. Students and other citizens who would never have thought to see such a production will rush to see it.
But, generously understood, I assume the real point of opposing the Vagina Monologues was to send the message that a particular university is a Catholic university. I think the better way to do that is education. The better way is to publicly discuss the strengths and weaknesses of the Vagina Monologues from a Catholic perspective. A public image of censorial tendencies is not good for Catholic education, and censorial Catholic education is not good education.
Comments welcome either on the trackback or to email@example.com
February 15, 2006
Don Herzog, Herzog: Constitutional Rights: February 15, 2006
"Our constitution is color-blind, and neither knows nor tolerates classes among citizens." So Justice Harlan wrote in his stirring dissent in Plessy v. Ferguson. Harlan added that the Reconstruction amendments "removed the race line from our governmental systems." That stirring language has been the mantra of those opposed to affirmative action.
There's other language in Harlan's dissent that suggests he worried not about any and all race-conscious legislation, but about legislation subordinating blacks. So for instance he referred to state laws "conceived in hostility to, and enacted for the purpose of humiliating, citizens of the United States of a particular race." And so today's patrons of affirmative action too can claim Harlan as their own.
I've been thinking about these matters again because of the Michigan Civil Rights Initiative, on the ballot for this coming November after ridiculous skirmishing about the legality of the language and the petition signatures. (Here is the key court opinion.) The Initiative would ban the University of Michigan from using "race, sex, color, ethnicity, or national origin" (so, amusingly, not sexual orientation) in admissions. Since I'm a reluctant but firm supporter of affirmative action, I'm opposed.
Obviously, color-blindness has its appeal. And it's not (quite) enough to say that in a more just society, it would be the right way to go, because it has its appeal for us, here, now. Still, I think it's a bludgeon of sorts where we need scalpels. So I want to step back a moment and consider the recent race riots in a jail outside Los Angeles. In response, authorities are segregating prisoners by race. Not a moment too soon. So how awful is it for the state to do that? How important a justification do they need?
February 08, 2006
What Game Would You Rather Play?
Anderson on Political Economy, Elizabeth Anderson: February 8, 2006
Let's conduct a thought experiment. You have to play a mountain-climbing game. The higher you climb, the better off you are. Rarely, players climb solo. Most of the time, they climb in teams. The members of each team are connected by pulleys and gears in such a way that, if everyone climbs in a cooperative fashion, everyone in the team goes higher than if each just climbed the team rope in an uncoordinated way. The job of the team leaders--those highest on the rope--is to figure out how to get everyone to coordinate their climbing so as to get the maximum total lifting force for the whole team. However, depending on the gear setup, the lifting force of each member's step may accrue unequally to each team member. (In most setups, those at the top get lifted higher by any team member's step than anyone below.) The mountain face is swept by gales, although the winds tend to be milder at higher altitudes than at lower ones. Sometimes the gales blow you or even your whole team off your rope. Other times, the team leaders--those at the top of the team rope--eject you from the team and toss you off the team rope. If you are lucky, your mountain-climbing skills may be attractive enough to another team that they extend you a part of their team rope before you hit the ground. Or you will have family or friends who will toss you a saftey rope to catch you on your way down. But you may not find a team with an open place on their rope that they will offer you, and you may not have family or friends willing to offer a rope, or the rope they are able to offer may be too frail to stop your fall.
You don't know your initial place on your rope, nor which rope it is, nor your mountain-climing skills, nor how well-off, benevolent, and numerous your family and friends are. In this state of ignorance, you get to choose some of the rules of the game you must play. Which rules would you prefer to play by? Here are your choices:
February 02, 2006
Health Savings Accounts: A View from the Trenches
Elizabeth Anderson: February 2, 2006
What can be done to control health care costs while extending access to care to the uninsured? The Bush Administration's strategy is to move health insurance from comprehensive to catastrophic coverage, and make sick people pay out-of-pocket for less-than-catastrophic costs. They would get some assistance in the form of tax-sheltered health savings accounts, in which they could deposit funds up to the amount of their deductible, dedicated solely to health care expenditures.
Nifty idea? Not according to Paul Krugman, who argues in his January 16, 2006 column that this scheme creates perverse incentives to insurers to withhold coverage of routine preventive care for people with chronic illnesses such as diabetes, even if this leads to medical catastrophe later on. ("[T]he administration is saying that we need to make sure that insurance companies pay only for things like $30,000 amputations, that they don't pay for $150 visits to podiatrists that might have averted the need for amputation.")
That's the supply side. What about the demand side? Do workers of modest means find health saving accounts helpful? One administrator told me of her experience: when her firm started offering tax-sheltered dependent-care and health-care savings accounts, she was responsible for explaining this new benefit to the employees. She saw them as wonderful opportunities to save money, and actively promoted them to the staff. What happened?
January 25, 2006
Gerald Dworkin: January 25, 2006
Update: Sorry, I did not mean to post anonymously
When I first began blogging on L2R I had comments enabled. This seemed to me the appropriate action to take in a blog which aimed at stimulating discussion among various viewpoints. I was then quite shocked (perhaps somewhat naively) to discover the nature of many of the comments to my blogs. They were rude, abusive, off the point, and not helpful in advancing the discussion. It was also the case that a small number of commentators contributed many more posts than the average. And these were not the most useful.
I decided to disable comments. This caused a number of potential commentators to e-mail me and accuse me of hypocrisy—particularly in light of the fact that many of my comments were about free speech, Ward Churchill, etc. It even turned out that one kind soul opened a website of his own designed to allow those who wished to comment on my remarks. To the best of my knowledge nobody ever availed themselves of this opportunity—perhaps because few were aware of it.
A number of fellow L2R authors (particularly Don and Liz) continued to enable comment and to engage in discussion. I do not think that their choice is mistaken and mine correct. I do not think that there is a single answer to this problem. Much depends on one’s threshold for tolerance of stupid and abusive views, on what thinks is the point of the blog one is on, of how much time one wants to allocate to answering critics, on the range of people and views that one thinks it is realistic to expect some change in, on how willing one is to censor comments before they appear, and so forth.
But the recent closing of the Washington Post blog of ombudsoman Deborah Howell is a good illustration of the hazards of public discussion on the Web. After Howell reported that Jack Abramoff “had made substantial campaign contributions to both major parties” the blog was deluged with hundreds of profane, sexist and hateful comments. One of the interesting things about this is that most of the comments came from various leftist blogs and groups. This made sense since her comment was (in my view) quite misleading. Jack Abramoff never gave money himself to any Democratic official. It is true that organizations for which he worked did so, and that is a relevant thing to note, but at the least one needs some evidence (and some exists) that they were asked to do so by Abramoff. But the relevant criticisms could have been made in a completely civilized manner.
My view of the role of L2R is not just to foster discussion but to foster discussion that has some chance of leading to some change of minds (whether on the right or the left). My brief exposure to comments did not make me optimistic that allowing them would facilitate that goal.
January 18, 2006
Elizabeth Anderson: January 18, 2006
Ana Marie Cox, self-professed feminist and formerly of Wonkette fame, reviewing "Women Who Make the World Worse" by Kate O'Beirne in the New York Times Book Review, Jan. 15, 2006 (here, behind a subscriber wall), commits a howler in conceding a point to O'Beirne:
She mocks MacKinnon's (decades-old) contention that "all heterosexual intercourse is rape."
Please, sisters, at least do a little fact checking when you come across preposterous smears like this? University of Michigan Law School Professor Catharine MacKinnon never said that.
Here's a measure of how much a group is despised: how much malicious absurdity can one ascribe to its members and still be taken as a credible source on what they say and do? With respect to feminists, the answer is quite a lot. Christina Hoff Sommers, former philosopher and professional feminist basher, has been widely and credulously cited for her critique of the American Association of University Women's report, How Schools Shortchange Girls, although my fact-checking finds her critique riddled with errors, inconsistencies, and misleading claims. Many academic critics of feminist philosophers are just as bad, often to the point of ascribing claims to feminists that are exactly the opposite of what they say. Feminists, it seems, are not entitled to a minimally charitable or even literate reading of what they say. Perhaps this is to be expected, if not excused, of those who wear their hatred of feminists on their sleeves. But for feminists themselves to fall for such bashing? Please.
January 14, 2006
On Kelo: Barking up the wrong tree
Anderson on Political Economy, Elizabeth Anderson: January 14, 2006
After a semester hiatus, I resume my series of posts on the political economy of a free society. Let's take up the issue of eminent domain, through the controversial Supreme Court case, Kelo v. New London 268 Conn. 1, 843 A. 2d 500, which affirmed the constitutionality of compulsory state transfers of private property to other private owners for the purpose of promoting economic development. The case has sparked a lot of outrage, spurring many states to draft laws banning state-enforced private-to-private transfers of property.
I think the outrage is misplaced. The problem with the current construction of the power of eminent domain is not that it permits states to force private-to-private transfers. The problem is rather that current law undercompensates property owners for such takings.
November 24, 2005
Bollinger, Academic Freedom, and Tolerance
Steven Shiffrin: November 24, 2005
Earlier this year President Lee Bollinger of
The other problem stems from an overly narrow
conception of the first amendment and the makeup of a democratic citizen.
Bollinger has written an excellent book in which he highlights the role of the
first amendment in encouraging tolerant citizens. I, for one, doubt that the
most important feature of the first amendment is nurturing character traits
(though I think it plays a role). But I believe that Columbia Law Professor
Vincent Blasi presents a richer view of the kind of character that the first amendment
might be out to cultivate. Blasi speaks in favor of the claim that a “culture that prizes and protects expressive liberty nurtures
in its members certain character traits such as inquisitiveness, independence
of judgment, distrust of authority, willingness to take initiative,
perseverance, and the courage to confront evil. Such character traits are
valuable, so the argument goes, not for their intrinsic virtue but for their
instrumental contribution to collective well-being, social as well as political.”
Vincent Blasi, The First Amendment and Character, 46 UCLA L.Rev. 1567, 1569
(1999). I believe that what Blasi says of a first amendment culture is true of
a university culture and that Bollinger proposal of a “fairness doctrine” for the
subject matter of every course is unduly restrictive. We need more than
tolerant citizens; we need engaged citizens. Conceding that Bollinger’s
restrictions are appropriate in many introductory courses, a first amendment
culture is more likely to produce engaged students and citizens than Bollinger’s
more restricted culture
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October 03, 2005
a ritual stupidity
Don Herzog: October 3, 2005
From President Bush's statement this morning, nominating Harriet Miers to the Court:
Harriet Miers will strictly interpret our Constitution and laws. She will not legislate from the bench.
Sigh. The cynic in me, of late a cancerously expansive presence, says, "calm down, Don, this is a barely coded statement to the right that she doesn't approve of abortion or gay marriage." But this familiar contrast is not supposed to mean that. It is supposed to give a reason, to explain why "conservative" judges are doing their jobs and "liberal" judges are usurping policy-making decisions that properly belong to the legislature.
Alas it's impossible to take that seriously.
September 06, 2005
A BBC Rescue Boat in New Orleans
Stephen Darwall: September 6, 2005
Yesterday I saw the most amazing BBC video coverage from New Orleans, which spoke volumes about the character and focus of even our belated relief efforts there. You can find it at the BBC News site (Thanks to Ciaran.) What you will see is footage from a small boat that a BBC reporter and crew took into one of the poor African-American neighborhoods in New Orleans. Winding their way past floating dead bodies, they find their way to a house with five children and their dead mother, whom they rescue. "It seems quite incredible to me," says the BBC reporter, "that we are the only boat in this neighborhood. And in every neighborhood we have gone into there are so many people with so many needs." After taking the family to an evacuation point, they return to the neighborhoods and find two middle-aged African-American brothers still holding on in their house because they don't want to leave their deceased mother, whose body hangs above the water level in a sling. Presently, the report turns to the relief effort itself and to the high proportion of military/police to medical support. "When the authorities do come to these streets, it's more often in pickup trucks with guns, more guns than medical workers." Dr. Greg Anderson is interviewed and says, "There are a lot more cops ... and guns than doctors. For a long time, I'm sorry to say, I was the only doctor down here in central New Orleans." An equally distressing proportion is the ratio of human needs met by that small BBC crew to those met by the enormous US news and "news" operations, not to mention, the national guard and other national support, considered in relation to their relative size.
Tell Us Again
Neil Buchanan: September 6, 2005
Tell us again that government is the problem, that things will be perfect if we just shrink our governments down to nothing and allow the wonders of private enterprise to solve all of our problems. As we look in horror at the grisly results of under-funded and ignored public works projects, we need to hear again the song that lulled us to sleep for decades, telling us that we will all be better off if we vilify and ridicule all government programs. Surveying the terrible human cost of a monumental failure to plan for an emergency that was not only predictable but predicted, we need to hear again that the invisible hand is the best planner and that government planning will inevitably make matters worse.
Tell us again that poverty does not matter. We loved hearing that people living on welfare really had it pretty good, that they were driving around in Cadillacs, that the poverty line had been manipulated by liberal professors to inflate the amount of money going to undeserving people who refused to get a decent job. When we worried that maybe some people really could not live on minimum
September 02, 2005
three views of New Orleans, with no editorial comment in sight
Don Herzog: September 2, 2005
When the satellite channels reported on the scope of the terrifying destruction in America [caused by] this wind, I was reminded of the words of [Prophet Muhammad]: "The wind sends torment to one group of people, and sends mercy to others." I do not think — and only Allah [really] knows — that this wind, which completely wiped out American cities in these days, is a wind of mercy and blessing. It is almost certain that this is a wind of torment and evil that Allah has sent to this American empire. Out of my absolute belief in the truth of the words of the Prophet Muhammad, this wind is the fruit of the planning [of Allah], as is stated in the text of the Hadith of the Prophet.
But I began to ask myself: Doesn't this country [the U.S.] claim to aspire to establish justice, freedom, and equality amongst the people? Isn't this country claiming that everything it did in Afghanistan and Iraq was for truth and justice? How can it be that these American claims are untrue, when we see how good prevails in the streets of Afghanistan, and how it became an oasis of security with America's entrance there? How can these American claims in the matter of Iraq be untrue, when we see that Iraq has become the most tranquil and secure country in the world?
But how strange it is that after all the tremendous American achievements for the sake of humanity, these mighty winds come and evilly rip [America's] cities to shreds? Have the storms have joined the Al-Qaeda terrorist organization?
How sad I am for America. Here it is, poor thing, trying with all its might to lower oil prices which have reached heights unprecedented in all history. Along with America's phenomenal efforts to lower the price of oil in order to salvage its declining economy and its currency — that is still falling due to the "smart" policy America is implementing in the world — comes this storm, the fruit of Allah's planning, so that [the price of] a barrel of oil will increase further still. By Allah, this is not schadenfreude.
Oh honored gentlemen, I began to read about these winds, and I was surprised to discover that the American websites that are translated [into Arabic] are talking about the fact that that the storm Katrina is the fifth equatorial storm to strike Florida this year … and that a large part of the U.S. is subject every year to many storms that extract [a price of] dead, and completely destroy property. I said, Allah be praised, until when will these successive catastrophes strike them?
But before I went to sleep, I opened the Koran and began to read in Surat Al-R'ad ["The Thunder" chapter], and stopped at these words [of Allah]: "The disaster will keep striking the unbelievers for what they have done, or it will strike areas close to their territory, until the promise of Allah comes to pass, for, verily, Allah will not fail in His promise." [Koran 13:31].
August 23, 2005
Don Herzog: August 23, 2005
The versatile Arnold Schwarzenegger — bodybuilder (for real), actor (sort of), governor (don't blame me) — has always provoked snickering. For a couple of weeks now, there's been a new and less amiable snicker, over the recent revelation that for years, while he was married to Maria Shriver, Schwarzenegger and Gigi Goyette (no, I did not make up that name) engaged in what she calls "outercourse."
There are two stories here, both of them about public and private. One is old, boring, and inconclusive. The other is old, too. But it matters, and it gets underplayed.
August 02, 2005
So You Want to Live in a Free Society (5): Common Property, Common Carriers, and the Case of the Conscientious Objecting Pharmacist
Anderson on Political Economy, Elizabeth Anderson: August 2, 2005
Imagine that you lived in a place where you had to ask someone else's permission to leave your property. Even if the other person always gave permission, you wouldn't be free. You'd be under conditional house arrest, with the other person your discretionary jailor. The case wouldn't be much better if you had a choice of 5 people to ask, any one of whose permission would let you leave your property. Then those 5 would be your joint jailors. You'd have somewhat wider opportunities, assuming their decisions were not coordinated. But you'd still be dominated by them. To be fully free, it's not enough just to have wide opportunities. People must be free from the prospect of domination--the power of others to arbitrarily put them in a state of subjection, where they must beg to get an opportunity critical to living a free life. It's worse, from the perspective of freedom, to be deprived of a critical opportunity by the arbitrary exercise of another's will, than to lack it due to natural causes or lack of technological development. It's worse to be unable to cross an unnavigable river because others arbitrarily forbid one from using the bridge, than because the technology for building a bridge at that point is lacking. In the first case, one lives in a state of subjection to others; in the second, one is merely technologically poor.
The "house arrest" case does not require that the "jailors" be state agents. They could be private property owners, in a property regime that enforces an absolute right against tresspass, and in which an entire territory is completely privately appropriated, such that some parcels of private property are wholly surrounded by other parcels. Then the owners of the surrounded parcels would all be effectively trapped by the owners of the surrounding ones. They'd be unfree. They'd be unfree even if helicopter travel were feasible, and private property owners didn't have airspace rights, so one could fly over their property. A property regime that makes escape from one's property either massively expensive, inconvenient, rarely scheduled, and likely beyond one's budget, or conditional on someone's arbitrary will, is nearly as bad from the perspective of freedom as one that conditions it on someone's arbitrary will alone.
I'm going to argue that consideration of freedom in cases like these yields:
1. An argument in favor of keeping certain parcels of land in the commons;
2. An argument in favor of the common carrier rule (the common law rule that operators of transportation, communication, and hotel services offer their services to all, without discrimination);
3. An argument in favor of applying the common carrier rule to pharmacists and other providers of medical care.
July 27, 2005
So You Want to Live in a Free Society (4): Personal Independence and the Rule of Law
Anderson on Political Economy, Elizabeth Anderson: July 27, 2005
In this series of posts, I've been developing a view of the requirements of a free society. I've introduced two notions of freedom--as opportunity, and as personal independence or non-domination. Last time I argued that freedom-as-opportunity is needed to justify private property, and is an indispensable idea for assessing social arrangements from the perspective of freedom. In this post I'll argue that freedom-as-personal independence is also a necessary part of a free society. Recall that to be free in this sense is to be in a state in which one "is not subject to coercion by the arbitrary will of another" (F. A. Hayek, The Constitution of Liberty, p. 11). Despite my fealty to Hayek's own formulation (which in fact follows a very long tradition), some might suspect that I have tried to stack the deck with some left-wing, radical notion of freedom that capitalist freedom-lovers can do without. Once again, the suspicion is right that this notion of freedom-as-personal-independence has some political implications that laissez-faire theorists will not like, as I plan to show in later posts. But once again, freedom-lovers can't do without this notion, because it's necessary for the rule of law, without which capitalism cannot flourish.
July 19, 2005
J. K. Rowling's modern world
Mika LaVaque-Manty: July 19, 2005
[July 22 addendum. By reader request, I include this SPOILER DISCLAIMER: This post reveals nothing about the plot of Harry Potter and the Half-Blood Prince, but the commentary that follows on L2R Comments does.]
I take a break from summer break to make sure L2R has a seat on the fluffy cultural bandwagon of Harry Potter commentary. (Besides, Don H. is on vacation, and it takes a small village of bloggers to make up for his productivity.)
Lately, it has become commonplace to argue that Max Weber's "secularization thesis" has turned out false. Weber, the early 20th-century German sociologist, suggested that modern world was becoming increasingly secular. The development of science, in particular, had "disenchanted" the world, he said. But in 2005 it does indeed seem things didn't quite go like that: whether the world ever got particularly secular, it would be hard to argue right now that religions and other kinds of spirituality are fast on their way out.
That's why it's interesting -- and intellectually refreshing -- to run into a glaring exception that also manages to be hugely popular. The world J. K. Rowling has created in her Harry Potter books is, in a Weberian sense, truly secular and modern.
July 05, 2005
History Lessons: In Philadelphia
James Oakes: July 5, 2005
What do Lynne Cheney and Cecilia Cannon have in common? I assume everybody knows who Lynne Cheney is, but who’s Cecilia Cannon? She’s an assistant superintendent of the Philadelphia school system, and she was recently quoted in praise of the newly imposed requirement that all high school students in the City of Brotherly Love be required to study African and African American history in order to graduate.
So what do Cheney and Cannon have in common, other than their shared interest in education? Both believe that the reason for studying history is to make students feel good about themselves.
Cheney hit the big time about a decade ago when she launched a pre-emptive strike on the National History Standards that she herself had commissioned as head of the NEH. According to the Los Angeles Times, Mrs. Cheney argued "that the standards were not positive enough about America's achievements and paid too little attention to figures such as Gen. Robert E. Lee, Paul Revere and Thomas Edison. At one point in the initial controversy, Cheney denounced the standards as 'politicized history.' " There were not enough references to the Constitution and too many references to the Ku Klux Klan. Not enough George Washington and too much Harriet Tubman. All in all, Cheney concluded, "We are a better people than the National History Standards indicate, and our children deserve to know it." (This was the height of sophistication beside Rush Limbaugh’s denunciation of the standards: "History is real simple. You know what history is? It's what happened.")
I don’t know if Mrs. Cheney has put up her two-cents worth about the new Philadelphia requirement, but it seems tailor-made to arouse her wrath. It is based on a spurious body of pseudo-knowledge known as "Afrocentrism," wherein the great achievements of western civilization–philosophy, literature, mathematics, and science–are said to have had their origins in Africa, specifically in the ancient black civilization of Kemet, known outside Afrocentric circles as "Egypt." Philadelphia’s students will learn, among other things, that African mariners discovered America a century before Christopher Columbus. They will be taught that as many as 50 million Africans were shipped to the Americas during the Atlantic slave trade. (Correct answer: about twelve million. Isn’t that horrible enough?) And as if to confirm Cheney’s worst nightmare, the great achievements of Africa will be emphasized whereas the United States will appear as the repository of virtually undiluted evil. Scholars more proficient than I have taken their swords to the idiocies of Afrocentrism. See in particular Clarence Walker’s lively but highly informed book, We Can’t Go Home Again: An Argument Against Afro-Centrism.
I’m fascinated by a somewhat different matter: the peculiar convergence of Lynne Cheney and the Philadelphia School Reform Commission. Lynne Cheney wants our students to focus on the great heroes and grand achievements of the United States. Our children "deserve to know" about our greatness as a people. But that’s exactly what Cecilia Cannon wants for Philadelphia’s students. "We have the opportunity ... to do something under our watch that is really going to do right by our students," Cannon declared, something that will have black students finish their courses saying to themselves, "We've come from some pretty great places."
Before I go any further, let me splash my credentials about, if only as a defensive maneuver. My field of research is American slavery; I teach comparative slavery as well as African American history; I’’ve supervised a number of African history Ph.D. dissertations. My point is not to impress everyone with my bona fides; it is only to say that you won’t find me raising any questions about the intellectual legitimacy of either African or African American history. I take these subjects very seriously, and that’s in part why I’m troubled.
For one thing, it turns out that my credentials––such as they are––render me uniquely unfit to comment on the Philadelphia proposal, one of whose primary goals is to play down the significance of slavery. Sandra Dungee Glenn, the school reform commission member who fought most for this proposal, is quoted to this effect in the New York Times. "People’’s views and understanding of who we are focus on us as descendants of slaves," Glenn said. "It begins and ends there, giving us inferior status." This is another standard Afrocentric turn: not much on American slavery; not a word about slavery in Africa. By studying, teaching, and writing about slavery, I turn out to be part of the problem Philadelphia is trying to correct.
So Glenn, too, agrees with Lynne Cheney: excessive attention to subjects like slavery makes a bad impression. For Cheney students end up feeling bad about America; for Glenn black students end up feeling bad about themselves. This is all too negative. James E. Nevels, Chair School Reform Commission hopes that the new requirement "will reflect the richness and culture that all Americans, of every hue and nationality, have brought to our collective table." The new courses will complement the existing American and World history requirements, Nevels says, thus placing the entire district’’s history curriculum "within an inclusive multicultural framework."
I don’t know which is worse, Mr. Nevels’ simple-minded notions about what students are supposed to learn from history courses, or the gibberish that Philadelphia’s students will actually be taught in courses which, by the way, strike this poor soul as the antithesis of multiculturalsim.
It would have been nice if the debate over the Philadelphia proposal had focused on its serious intellectual flaws. But no. The entire debate, for and against, hinges on an entirely different matter: The proponents of the new requirement claim that it will boost the self-esteem of African American students, while the opponents worry that it will diminish the self esteem of whites and ethnic minorities.
I confess that I find this obsession with self esteem nearly as disturbing as the curriculum itself. Once history is enlisted as an agent of psychological well being it ceases to be a serious intellectual enterprise. History–like mathematics or biology--is not supposed to make students feel good––or for that matter, feel bad––about themselves. But that seems to be what the Philadelphia proposal is all about.
I am not a psychologist. I am not qualified to say whether students need to be spoon-fed balderdash so they can feel good about themselves. My own seat-of-the-pants sense is that self esteem has more to do with performing well in demanding courses, whether those course are in Trigonometry or African history. Anyway, is self esteem what we’re aiming for? Haven’t we all read about those studies of gang members who have high self esteem? I was not happy when Lynne Cheney began hectoring me and my guild about teaching American history in a more upbeat fashion. And I’m not happy about having the serious study of African and African American history corrupted for the sake of anybody’s self-esteem.
What might have been a perfectly reasonable proposal to balance a curriculum slanted towards European history turns out to be nothing of the sort. Throughout the debate critics have been complaining about the "Eurocentric" bias of "traditional" high school history. But Philadelphia students now take no European history at all, and what they are about to get sounds more like "anti-European" history than African history. What might have been an innovative introduction to a serious field of historical inquiry turns out to be a curious reversion to the very same "traditional" approach that the proposal’’s defenders disdain. Except that rather than being taught boring facts about the great achievements of great white men and their great civilizations, students will be taught boring pseudo facts about the great achievements of great black men and great black civilizations.
In the end, what’s the difference between history as preached under Lynne Cheney’s American nationalist dispensation and Molefi Asante’s black nationalist dispensation? Both demand the impressment of history into the service of ideology. Confusing history with propaganda, both forsake history as a critical discipline. And both establish a bogus psychological standard for measuring the validity of any particular historical inquiry. If it makes students feel good–about their country or about themselves, it make no difference–it’s doing the job.
More than a century ago good Christians worried that teaching Darwinism would lead students devalue human life and thereby diminish the glory of God. Fortunately we’ve outgrown such notions and nobody these days would seriously propose corrupting the teaching of science by.... Oh, never mind.
what's a poor library to do?
Don Herzog: July 5, 2005
Who knew a little paragraph buried in a bureaucratic document could kick up such a fuss? Page down to F-9 and you'll find this, uncertain syntax and all:
Commissioner Storms led a discussion on the adoption of a policy that Hillsborough County Government abstains from promoting and participating in Gay Pride recognition and events. The Board approved to adopt a policy that Hillsborough County Government abstain from acknowledging, promoting, and participating in Gay Pride recognition and events. The Board approved that the policy would only be able to be overturned by a public hearing and supermajority vote. Renee Lee is responsible for drafting a Board policy for Board review by July 20th.
Why? Because the West Gate regional library put up a display for Gay and Lesbian Pride month: a poster with famous gays and lesbians, and books and pamphlets from the library's collection. A few patrons complained, and the display came down. One pamphlet offered teenagers with "questions about their sexuality" "counseling resources." That concerned Commissioner Storms, and hey presto! a new sweeping policy for Florida's Hillsborough County, which includes Tampa.
Is the policy unconstitutional? Does it violate the first amendment? Centrally of course the constitutional guarantee of free speech protects private citizens from government control. The law on whether it protects one unit of government from another is dicey (but see this). Still, I don't think the commission's action violates the first amendment. Neither does she:
Renee Lee, the Hillsborough County attorney, said it was legal. "If the county doesn't want to spend money promoting gay rights, they can do that," Lee said. "It's not a constitutional breach. This is not a free speech issue."
And the city of Tampa's human rights ordinance (click on chapter 12 here) bars discrimination on the ground of sexual orientation. (The county removed sexual orientation from its ordinance in 1995.) The library gets some of its funding from the city, and a citizen has filed a complaint with the city's Office of Human Rights. But I didn't notice any language in the statute that really applies.
So as far as I can tell, then, there are no constitutional or other legal barriers to the county commission's action. This is a policy dispute, no more — and no less. It belongs in the political arena, not in court. So the commission got quite an earful from the public. Still, they adopted the policy. It's one crummy policy. And I even think we ought to be able to agree on that whether we approve of gay rights or not.