Positive Liberty

I want to congratulate Tim Sandefur on a big victory against government rent-seeking laws. I’ve mentioned before a case he’s been working on for quite a long time involving a man who owns a company that does non-chemical pest control being required to spend a great deal of money and time to take courses and get licensed in pesticide use in order to continue doing business. A federal district court granted summary judgment and upheld the law, but last week the 9th Circuit Court of Appeals struck down the law. The case is Merrifield v Lockyer.

The ruling is really rather fascinating because it shows the restrictions within which Sandefur had to argue because of a long litany of bad precedents and legal theories. For instance, the court could not rule in favor of the plaintiff based on the privileges and immunities clause because the Supreme Court almost immediately gutted that clause of all meaning in the Slaughterhouse cases soon after the 14th amendment was passed.
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Here’s an interesting article in the Texas Journal of Law and Politics by Nathan Forrester that makes the argument that George Washington’s views on church and state have been unfairly ignored and should be given as much weight as those of Thomas Jefferson. The article is actually a book review of Under God: George Washington and the Question of Church and State, by Tara Ross and Joseph Smith. And there’s much in the article that is hard to argue with.

I’ve pointed out many times the basic split among the first four presidents on such matters. Washington and Adams were what might be called non-coercive accommodationists, while Jefferson and Madison were strict separationists. Washington and Adams believed that the government should provide a general and rhetorical support to religion through proclamations of days of thanksgiving and prayer, but only if those proclamations were kept non-coercive (that is, no one was required to follow them) and they were worded very broadly so as to encompass almost any religious belief, not merely Christianity.
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James Kirchick of the New Republic has managed to find a treasure trove of old Ron Paul writings that show a lot of disturbing opinions on a wide range of subjects. Since 1978, Paul has sent out a monthly newsletter to followers under various names - Ron Paul’s Freedom Report, Ron Paul Political Report, The Ron Paul Survival Report.

The Freedom Report has archives online going back to 1999, but finding copies of the newsletter that predate that is apparently quite difficult. Though the newsletter apparently had a circulation of 100,000 at one point, because it was published privately it’s not the sort of thing most libraries would carry and archive. But Kirchick managed to find a number of them in the libraries of the University of Kansas and the Wisconsin Historical Society.
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Cato Unbound has a debate on the subject of radical life extension - the pursuit and development of medical advances that would significantly extend human life spans by decades, perhaps even centuries. They pose the question in these terms:

Is aging an inevitability or a disease? Is death the ultimate tragedy or necessary to give life meaning? If we could live forever, should we want to? If much longer lives are within technological reach, is it our duty to do everything possible to achieve radical life extension, or is it instead our duty to reconcile ourselves to finitude?

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It is a bizarre and curious fact that an odd subset of Christians cannot seem to allow non-believer to die without recanting their disbelief. Virtually every famous non-believer in history has had breathless deathbed recantation tales told of them. In this column at the Worldnutdaily, Greg Laurie repeats one of the most famous regarding Voltaire, one of the earliest examples of this phenomenon.

Immediately after his death, fantastic stories began to circulate about Voltaire’s alleged recantation. In some versions of the story, he asked for the last rites and was given them; in other versions, he cried out in shame at his unbelief and was hysterical in fear of going to hell. So famous were these stories that David Hume, another famed unbeliever, made sure to have a prominent writer at his deathbed to document every moment in order to avoid what had happened to Voltaire.

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Chris Rodda has a new post at Talk2Action debunking another major Christian Nation myth, this one about Thomas Jefferson. The claim is that Jefferson tried to bring a bunch of Calvinist theologians from Switzerland to the US to establish a seminary. Sometimes it’s claimed that he intended to use this as the basis of the University of Virginia. She begins with D. James Kennedy’s version of the myth:

Jefferson “wanted to bring the entire faculty of Calvin’s theological seminary over from Geneva, Switzerland, and establish them at the University of Virginia.”

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Antonio Agnone was raised to believe that every American has a duty to serve his country in some capacity. Following in the footsteps of his grandfather, a soldier in WW II, Antonio was commissioned as a Marine officer upon finishing his undergrad work at Ohio State. He would lead his own unit in Iraq where, as a combat engineer, it was his job to keep his men safe from Improvised Explosive Devices (IEDs), those deadly implements responsible for more than 80% of the combat deaths in that war. Many is the time, he recalled Thursday night, when he crouched over the ground, warning his men to stay back as he painstakingly disarmed a booby trap. In a sane world, there would be little to detract from such acts of bravery. But in the real world, his many acts of heroism will, in the minds of some, forever be tainted by one simple fact: Antonio Agnone is gay.
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At least according to some drooling halfwit named Richard Lawrence Poe, who says that Hillary Clinton is behind the Center for Independent Media and that everyone associated with the CIM’s New Journalist program - including me, named specifically - is on Hillary’s payroll, as she tries to “buy favorable coverage. There is so much nonsense in this screed it’s hard to know where to begin. But let’s start with the obvious: I do not support Hillary Clinton.

Not only do I not support Hillary Clinton, I was calling for the impeachment of her husband long before the right got obsessed with his getting a blowjob. I have a hard time imagining a circumstance in which I would support Hillary Clinton. The funniest thing about this clueless dolt claiming that we’re all being paid to blog on behalf of Hillary Clinton is this: his article is the first time Hillary’s name has ever come up among the Michigan CIM fellows. Ever. I checked. I’ll take absurdly false claims for $1000, Alex.

The First Amendment Center has just published the results of its annual survey of American knowledge and attitudes concerning the first amendment; the results were quite mixed.

First, the matter of knowledge. Of the five specific rights guaranteed by the first amendment, only freedom of speech could be identified by more than 20% of respondents. 64% could name freedom of speech. 16% could identify freedom of the press, 19% could identify freedom of religion, 16% could identify the right to assemble and only 3% could identify the right to petition the government for a redress of grievances. I find that appalling.
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I know, this is hardly a shock. Lauren Green, the correspondent in question, has a piece on the Fox News website throwing a fit about Kathy Griffin’s Emmy jokes. Along the way, she throws in a few well-worn falsehoods. And her understanding of the history of Christianity in the West is shockingly inaccurate. She writes:

In 300 A.D. Emperor Constantine accepted Christianity and it beccame the religion of Europe. Rome soon became the seat of the faith. After several years of human failings, the church went through conflicts and quite a few unbiblical years — the crusades and the inquisition to name just two. Out of that came the Reformation — the reforming of the Church, sort of a back-to-basics Bible and the Gospel of Jesus Christ.

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The jazz world lost one of its most legendary masters, drummer Max Roach. If there is a pantheon, a Mt. Rushmore of jazz, Roach is surely in it. He debuted at 16 years old with Duke Ellington’s band; by the age of 18, he was on the way to being the rhythmic force behind every major innovation in jazz for decades to come. In the 40s and early 50s, he powered the be bop movement with his unique polyrhythms and syncopations. In the 50s and 60s, he was the man behind Miles Davis and cool bop. Then it was Clifford Brown and hard bop. After that, it was free jazz. He was the drummer on the legendary Massey Hall performance by The Quintet, made up of Charlie Parker, Charles Mingus, Bud Powell and Dizzy Gillespie (a CD I’m listening to as I write this) - now that’s an all-star lineup. He was also a major civil rights leader, recording We Insist! Max Roach’s Freedom Now Suite on the 100th anniversary of the Emancipation Proclamation. Max Roach was a true giant, an irreplaceable musical genius, and the world is far poorer today without him in it.

At the American Bar Association’s annual meeting last week in San Francisco, there was a panel of judges who had all been the target of threats after issuing controversial rulings. That panel included George Greer, the judge in the Terri Schiavo case; New Jersey Supreme Court Justice Roberto Rivera-Soto, who participated in that state court’s ruling requiring civil unions for gay couples; and Eileen O’Neill, a former Texas judge who once found Randall Terry and other anti-abortion advocates in contempt of court for refusing to follow a court order not to harass doctors in Houston.

They could also have had Judge Jones from the Dover trial, who was subject to death threats as well. Here are some examples of what they went through. From Judge Greer:
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Just in case you’re getting too depressed about the Supreme Court’s rulings on Monday, I should note that they did get one right in FEC v Wisconsin Right to Life (full ruling here). It was another 5-4 ruling with the same breakdown - Alito, Roberts, Scalia, Thomas and Kennedy in the majority, Souter, Stevens, Breyer and Ginsburg in dissent. But on this one the conservative majority got it right. The ruling strikes down a provision of the McCain-Feingold law that bans all advocacy groups from airing commercials about issues within 2 months of an election. This is an absurd law and a clear violation of the first amendment. I’m disappointed that it was only 5-4, it should be a 9-0 no-brainer ruling. And I have the same reaction to the liberal minority here that I had to the liberal majority in Kelo: I do not understand who anyone who considers themselves a liberal can justify such a ruling. How can a liberal make case that for two months of the year, no advocacy organization can try and convince their fellow citizens to agree with them by airing commercials advocating their position (just as I wondered how on earth the liberal justices could justify upholding the right of big corporations to take property, primarily from lower income people, and use it for their own profit in Kelo). I have a hard time imagining ideas less liberal than those.

In Morse v Frederick, the now-famous “Bong hits for Jesus” case, the Supreme Court, by a 5-4 ruling, came down with just about the worst free speech ruling issued during my lifetime (see full text here). I expected a very narrow ruling in favor of the school. Unfortunately, the court issued a very broad ruling in favor of school authority to censor any speech they see fit, not because it causes any disruption, as the standard in Tinker required, but because it disagrees with a message the school thinks is important. This is a very dangerous precedent.

Leaving aside the question of whether the event was school sponsored or not (a very close call and I’ve no problem with the court saying it is), it is the breadth of the ruling that surprises me. Essentially the court says “drugs are bad and therefore the school can punish any student who makes any statement that might be construed as encouraging drug use.” Here is the holding:
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As I’ve already noted, the Supreme Court has ruled in Hein v Freedom From Religion Coalition (full text here), a case involving the question of taxpayer standing: does a taxpayer have legal standing to challenge expenditures that they believe exceed the Federal government’s constitutional authority? It also cuts to the much deeper question of the coherency of standing doctrine itself, which is an absolute mess and makes very little sense.

The decision was a plurality. Alito and Roberts on the controlling opinion with Scalia and Thomas filing their own concurrence and Kennedy filing another. Souter, Breyer, Ginsburg and Stevens were in dissent. Yes, that lineup should begin to look very familiar to you soon; it’s going to be a very common breakdown of rulings with the court as currently configured. I gave a background on the issues of the case here and you may want to review that first in order to understand the rest of this post.
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