Give me your stuff, sayeth Uncle Sam

Our Supreme Court appears to have had far more power than it appears the founders thought it would. Alexander Hamilton, for one, wrote in Federalist no. 78:

“It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.” (footnotes omitted).”

Let me shrink that down for those of you who go pale at the sight of anything longer than a text message. The judiciary is the weakest of the three branches because it is powerless to attack the other two branches, can barely defend itself, and really can’t harm the people as long as it remains independent from the other branches. Because it is so weak, the judges need to be appointed for life, which is indispensible to keep their independence.

But in the next paragraph Hamilton states the very reason, unbeknownst to him, that the Supreme Court would later become so powerful in spite of its expected weakness:

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

Which means that since the Constitution make the power of the legislature limited – for example, it forbids making something already done illegal (no ex post facto laws) - the only way to keep it that way is for the independent court to declare any such law void – or unconstitutional.

Of course, it doesn’t actually say in the Constitution that the Supreme Court can do this, but in the seminal case of Marbury v. Madison, which was most brilliantly covered in this blog on 10/29/10, Hamilton’s protégé, Chief Justice of the Supreme Court John Marshall made this part of his argument when he declared it the courts’ business to say what the law is and garnered to them the ability to declare the laws made by the other two branches unconstitutional.

Of course, like our congress and our executives, the Supreme Court can be pretty boneheaded and it makes me happy to point it out when they are. Here are five bad cases by the court (I’d do the traditional ten, but I’m so damn wordy) which have worn away your property rights. You might agree or not with the court. I don't.

1. Wickard v. Filburn (1942)

One of the issues that has been fought the longest in Supreme Court history is over the meaning of the interstate commerce clause, found in Article 1, section 8 of the constitution, which expressly gives congress the right to regulate interstate commerce. Often in cases, it is couple with the “necessary and proper” clause, which gives the congress the right to make laws which are not technically within their expressed power, but which are necessary and proper to carry them into execution (at an early point, “necessary” was interpreted to mean “convenient” - but I'm not going there). Over the course of two centuries, that commerce clause's meaning has been tremendously expanded, as the commerce clause was interpreted not just to mean congress should be the umpire and make the states play fair with each other, but to cover any activities which were in some way related to commerce taking place in more than one state or even locally if it might have an affect on interstate commerce, no matter how remotely. I don’t mean to argue out the merits of the two sides, as it has really been long decided. But, some cases do go just too. Wickard was an extraordinarily bad decision in my book.

During the depression, the federal government restricted the growing of wheat because it actually wanted to control the price of it (basic economics – supply and demand affect price). Roscoe Filburn – what a great name – was a farmer who grew a little extra wheat on his farm to use to feed his family and his livestock. He was limited by the federal government to growing wheat on about 11 acres, but used about 23. Since he wasn’t selling this wheat on the market, let alone the interstate market, he questioned how the federal government could tell him what to do with his own property.

At the time, in constitutional law, there were still some division between whether activities were local or non-local, and whether they had a direct or indirect effect on interstate commerce. Those activities which were local and had an indirect effect on interstate commerce were outside of the power of congress to control.

Although the idea had been brewing for a while, this case blew the doors off on restrictions of congress’s power under the commerce clause. The court ruled that it no longer mattered whether activity could be said to local or had an indirect effect on interstate commerce. “That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it.... But even if [someone’s] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if [the activity] exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'”

Wow, so, even if congress is empowered only to regulate commerce that is interstate, it no longer matters if it is commerce or interstate – so long as it has a direct or indirect effect on interstate commerce. Yeah, they say "substantial" effect, but anything they decide is substantial is substantial.

When you consider the nature of the world, and how almost any activity can be made to relate to some other distant activity if one uses their imagination, it gives the government powers over the individual which are startling. Only in the 1990s were any brakes on this put at all, and those were not well made brakes. But, it is the line that has defined commerce clause litigation ever since.

In Filburn’s case, the food was for his family’s and animal’s consumption. The court reasoned that if he is feeding them, that means he is not buying the stuff on the market. And, though that might be a small amount, if you add it up with what everyone else might do, the activity would keep the government from regulating the price (in other words, preferring the command economy to the capitalist market economy).

Taking this case to its logical conclusion, the federal government could, in effect, tell you that you may not hunt, you may not fish, you may not eat the carrots in your garden plot. In effect, you buy what we want at the price we tell you that you must, or you starve. How far is this from the idea that the government is there to be the honest broker, and to make sure there is a level playing field? How far is it from what the Sheriff of Nottingham did in the tales about Robin Hood? Not very.

2. Daniel v. Paul

From time to time in this blog I believe I have mentioned my view of the use of the commerce clause to enforce anti-discrimination law, particularly the 1964 Civil Rights Act which forbids even private persons in interstate transportation or accommodation from discriminating based on color among other reasons. I believe the law, as applied to private citizens or companies, is unconstitutional, and the congress’s interstate commerce clause power does not extend so far as to force private citizens not to discriminate. On the other hand, I also feel that these were necessary laws and were among the best laws passed by congress in our history. It is a paradox, I know, but, I am not the first or will be the last to feel that way. Without going into it fully here, the reason is because of the nature of our initial constitution and culture, and the difficulties in race relations which have stemmed from it. But, that's for another day.

As to the 1964 act, probably the most famous case which came out this legislation was Heart of Atlanta Motel v. U.S. (1964). There the court  found that congress did have such a power under the commerce clause. However, it must be noted that in that case not only was purposeful discrimination admitted by the defendant, but the motel also acknowledged that it was definitely acting in interstate commerce. So, I am skipping to a much less well known case which you will rarely ever see written about, but which was a much worse decision by the court.

That case is Daniel v. Paul (1969). In this case a husband and wife ran a private club in the middle of the woods connected to the world by little local country roads, which had a 25 cents membership, and where locals would go to swim, dance, eat and the like. Unlike the Heart of Atlanta Motel case, it was not near any interstate highways, and there was no admission of interstate commerce activity. In fact, it was found in the lower court that there was no proof that anyone ever went there from out of state.

The court, now several years after the Civil Rights Act of 1964, just didn’t care. They were going to find interstate commerce no matter how remote. Without any evidence, they just decided that it was foolish to think no one from out of state ever went there. They decided that somehow advertising in Little Rock Today and The Little Rock Air Force Journal (papers I’m sure y’all’ve read) were seeking interstate business, and they pointed out that since the incidental paddle boats, juke box and vinyl records must have been made out of state and at least some of the ingredients in their bread and soda too, that was good enough for them to find a connection of interstate commerce.

This, of course, makes a farce of the Act and the constitution. It means that no one can ever say that their business is purely local unless they neither have nor use any product in their establishment which was made out of state. And if there is such a business, if they use the telephones or have a television, I’m sure they would decide that was good enough too. Perhaps a wise man sitting on a mountain top in homespun cotton who does not advertise, have running water or a phone might qualify.

Even such a civil rights advocate as Hugo Black (please don’t point out he was momentarily in the Klan when he was young – yawn) thought this was just ridiculous and he dissented. First, he pointed out that every bit of evidence the court relied on was actually not in the record, not the food or juke box or records or boats. There was no proof at all about it. More, even if there were, this is just not good enough to find interstate commerce applies. He quoted Sen. Hubert Humphrey, a major supporter of the law, who stated in congress that it wasn’t meant to cover every business. The court did not care. Black wrote:

“It seems clear to me that neither the paddle boats nor the locally leased juke box is sufficient to justify a holding that the operation of Lake Nixon affects interstate commerce within the meaning of the Act. While it is the duty of courts to enforce this important Act, we are not called on to hold, nor should we hold, subject to that Act this country people's recreation center, lying in what may be, so far as we know, a little "sleepy hollow" between Arkansas hills miles away from any interstate highway. This would be stretching the Commerce Clause so as to give the Federal Government complete control over every little remote country place of recreation in every nook and cranny of every precinct and county in every one of the 50 States. This goes too far for me.”

It should be noted that Black, and also William O. Douglas, who concurred in the judgment, both thought the 14th amendment applied and would have made the law constitutional. I disagree there as well. There are better arguments on the side of the property owners there than on people who might want to use their property.

I don’t have to like or go to the Lake Nixon Club (and, incidentally, it looks like it is now a summer camp with an internet presence, but I have no idea who owns it, and I really doubt almost 50 years later they would still hold the same views) but if some people who live on a country road in Arkansas want to be prejudiced and keep blacks, gays, Jews atheists or far worse, bad dressers, off their property, that should be up to them, not me.

3. Flood v. Kuhn (1972)

This is one case in this series where I am not questioning the court’s use of the commerce clause, but its making an exception for one activity against all logic and reason. In doing so, it shows how subjective our supposedly objective court really is.

Curt Flood was a pretty good baseball player, maybe a great one. I will defer to commenters on that. At some point, inspired by the civil rights movement of the 1960s, he decided that Major League baseball’s reserve clause which enabled the first team to sign a player his keeper for his entire career, if it so desired, was akin to slavery. Flood wrote the following letter to Commissioner Bowie Kuhn:

"December 24, 1969

After twelve years in the major leagues, I do not feel I am a piece of property to be bought and sold irrespective of my wishes. I believe that any system which produces that result violates my basic rights as a citizen and is inconsistent with the laws of the United States and of the several States.

It is my desire to play baseball in 1970, and I am capable of playing. I have received a contract offer from the Philadelphia club, but I believe I have the right to consider offers from other clubs before making any decision. I, therefore, request that you make known to all Major League clubs my feelings in this matter, and advise them of my availability for the 1970 season."

The commish said no and Flood sued, taking the case all the way up to the Supreme Court. The argument was that the Sherman anti-trust law (based on the commerce clause) prevented baseball from this policy as it stifled competition. It actually was a matter that had been ruled on twice before by the court. In the first case, they decided that baseball was exempt from the federal anti-trust law because the business of baseball, wrote Justice Oliver Wendell Holmes (to show how little he knew of the game, he made baseball into two words), was a purely state activity. This was in 1922, and the court had yet to fully revolutionize the meaning of the interstate commerce clause. Thus, the federal government couldn’t make laws affecting state acts. It was a unanimous decision. That all changed dramatically in the following decades, as what was deemed interstate grew with the changing economy, and being local was no longer a bar to the commerce clause power. Yet,  still, in a 1952 case, the court stuck with its decision. This time two judges dissented, writing that times have changed and major league baseball was inarguably an interstate business. By, the 1970s, it was pretty clear that major league baseball was about as interstate a business as you can get, at least under the modern interpretation of the commerce law. This time three judges dissented, including William O. Douglas, who regretted his decision in favor of the baseball leagues in the previous decision twenty years before.

But, since the court ruled again for the leagues on the doctrine of stare decisis – that the matter was already decided in a previous case - why is it such a bad decision? Two main reasons. First, the Flood majority admitted that baseball was interstate commerce. They also admitted that they were basing their decision purely on stare decisis even though they had already decided in two other previous cases that boxing and football would not be exempted from the anti-trust law. It was a weak argument as well that if congress had meant to include baseball, it would have changed the law after the 1922 case. The second reason this decision was so bad is more style than substance. In his majority opinion, Justice Harry Blackmun wrote a seven page love letter to baseball, even listing his favorite great players, many of whom I never heard of. Other justices and commentators felt this was not real dignified or judicial. What was he thinking? For these reasons, many think it a worse ruling than his Roe v. Wade opinion.

4. Kelo v. The City of New London (2005)

This one really made people angry. Even people who never listened to politics, didn’t really know what the Supreme Court was, were angry.

The City of New London decided to take some property from some homeowners. Government generally has that right under a doctrine known as eminent domain. However, the constitution states that if private property is taken for public use, there has to be reasonable compensation. This applied to the federal government. But, in what I believe was the earliest example of the high court deciding that some rights under the constitution were so important, they would be applied against the states, it was made to so apply in a railroad case in 1897, although as early as 1798 the court had indicated that this would be the case.

One of the questions arising out the “takings clause” is - what is public use? Sometimes that is an easy question. A public park, or a courthouse makes it easy. In Kelo though, the city wanted to take the properties and give it to a private corporation for a redevelopment plan. They wanted to bulldoze the old neighborhood, let Pfizer, the chemical giant, build a plant there, and put up new apartments for their employees. It was figured that this would increase the city's tax base. Pfizer, however, was given a few years  tax exemptions to induce them to come.

Why in the world would it be okay for a government to take one person’s private property and give it to another private entity – here a corporation? Some of the people involved had lived in their homes their entire lives. It just seems wrong, never mind the law.

So, why did five Supreme Court justices decide that it was okay? Like in most situations, there was precedent. In one case the court allowed the government to take property to eliminate a blighted neighborhood. In another case, Hawaii was actually allowed to redistribute the state’s land because almost three quarters of it was owned by just twenty two landowners. But, Kelo seemed like a great extension of this policy because the use would not really be public. The city just wanted to do it because they thought it might help and they claimed that if the purpose is public, even if private entitities benefitted, that was satisfactory.

The majority, including the usual swing vote, Justice Kennedy, decided that “public purpose” was good enough to satisfy “public use” in the takings clause. It was a terrible decision in my book. As strange as the Hawaii case was, the government was remedying an absurd and intolerable situation, made possible by land ownership before Hawaii was even a state, near the beginning of its existence. In the other case, the feds were using their power to get rid of a blighted area where over 64 percent of the properties were beyond repair and another 18 percent or so at least needed major repairs. Neither situation is comparable to Kelo.

As a result of Kelo, almost all the states revised their own eminent domain rules. President Bush issued a presidential order (which any president could change) essentially ordering the federal government to avoid this situation.

And what about The City of New London? Did they increase their tax base? Of course not. The redeveloper could never raise the money after the area was bulldozed, and Pfizer, which moved in – they moved out before their tax exemption was up.

Total cost to New London – 78 million dollars.

8. Wilkie v. Robbins (2007)

This case barely got any attention compared to Kelo, but it is even worse in my mind. It is one of those decisions which makes you question the separation of powers as having any real meaning.

Like Kelo, it involves private property. But, in Kelo, at least the people whose property was taken got paid something. In Wilkie, the rancher got nothing. And, it wasn’t an eminent domain case. The federal government just pretty much wanted to steal it after they screwed up.

First, I have to explain what a Bivens case is. In Bivens v. Six Unknown Agents (1971), the Supreme Court ruled that if there is an important constitutional right – in that case the 4th amendment rights to privacy – a person could sue the federal government even if there was no federal statute gave them that right expressly. And this seems only just – the constitution is the supreme law. If the federal government violates someone’s constitutional right then that person should have relief even if government doesn’t care to put one into law. However, it must be acknowledged that they haven't allowed it with every constitutional right.

Here’s what happened, as succinctly as I can put it. The government worked out a public easement with a Wyoming rancher, so that it could increase the public access to a national forest. So far, okay. But, the government forgot to file its easement, and the property was sold by the rancher to Frank Robbins, who was unaware of the easement. The government called on him and insisted he give them the same easement. He was willing to negotiate, but the Bureau of Land Management (BLM) decided he should pay for their mistake (and it was not denied he was right under the law). In fact, the agent who called told him the federal government doesn't negotiate.

So, in the words of one BLM employee, they decided to “bury” him. As put by Robbins' lawyer, here’s how they did it. “The agents’ independently unlawful actions included intentionally trespassing on Robbin’s land, inciting a neighbor to ram a truck into Robbins while he was on horseback, breaking into his guest lodge, filing trumped-up felony charges against him without probably cause, and pressuring other government agents to impound [his] cattle without cause. . . cancel[ed] the right-of-way previously negotiated with [the prior owner] that was to have run with the land, filing doubtful administrative charges against [him] and selectively enforcing others, and they relying upon these charges to deny [him the recreational use and grazing permits essential to his cattle drive business, refusing to keep the main access route to Robbin’s property passable while fining Robbins for repairing the access road that the previous owner had been allowed to maintain, and interfering with his business by ‘videotap[ing] ranch guests during [a cattle] drive, even while the guests sought privacy to relieve themselves.’”

Sickening, right? One BLM employee even retired over the abuse and testified for Robbins. Sounds like a Steven Seagal movie, right?

The court ruled against Robbins suit for retaliation by the government for his insisting on his 5th amendment right to compensation for the taking (by the way, you can argue that Robbins could have taken one for the team and that he had received the benefit without the burden of the deal, but it was acknowledged that the law was in his favor and this was a “taking”).

Despite 35 years of Bivens claims at that point, the court decided that he could not use that process, even though he was undeniably harassed by government agents for the purpose of forcing him to give up a property right. Justice Souter, who wrote the majority opinion, stated as follows, which I believe sums up their reasoning:

“But unlike punishing someone for speaking out against the Government, trying to induce someone to grant an easement for public use is a perfectly legitimate purpose: as a landowner, the Government may have, and in this instance does have, a valid interest in getting access to neighboring lands.”

This is, of course, just double speak or mere rhetoric. They were punishing him for trying to exercise a constitutional right too. In Souter's first clause, he is speaking of what the government illegally does in punishing a person for exercising the write, but in his second clause, he switches to speaking of what the government’s legitimate purpose might be. But, in both instances the government might have legitimate purpose but unlawfully punish the person. If the government is trying to maintain public support for a war, which is legitimate, it still can’t deny you your speech rights (at least, pretty much not any more). If it needs to house soldiers, a legitimate purpose, it can’t choose your living room. If the government is trying to get a serial killer of the street, obviously a legitimate purpose, it can’t plant a bug in your living room without a warrant. Just the same, it is absurd to write that since urging someone to grant an easement is legitimate, the government can harass someone into doing so.

One of the reasons Bivens type relief was not given was because most of the harassments he suffered could be or were handled by some formal administrative remedy or case. In fact, the government even charged Robbins with a felony, and he had a trial at which the jury took only 30 minutes to acquit him, and after which one of the jurors stated that they had been shocked by the behavior of the government.

Justice Souter even admitted that “[a]gency appeals, lawsuits, and criminal defense take money, and endless battling depletes the spirit along with the purse.” Worse, he essentially acknowledged that constitutional rights were violated, and that Robbins would have relief for some of the acts – but not the cumulative pattern of harassment. What? If it is illegal for the police to turn your power off once a day to get you to confess to a crime, – is it not illegal to do it every day and bankrupt you by making complaints and going to court.

While it is admitted that the court has not allowed Bivens relief for every type of federal violation of constitutional rights, where there is proof that a concerted effort is made to violate a person’s rights by the federal government “by a thousand cuts,” of course a right to Bivens relief should stand. At this point, now that Robbins is decided, why should any federal agency not act like the BLM did in this case? If it wants your property, it will just wear you down and out, and even if you can prove it, there is nothing you can do about it. Bad decision. 

Coolidge is Cool

Welcome back to Metaphysical Booknotes, the show that Raises Dead Issues With Dead People. Today’s guest is a dead white male much forgotten, long ignored, but lately regaining some popularity.

I’ve summoned President Coolidge to talk with us. Called Silent Cal by some for his habit of remaining quiet in private meetings, he actually was quite a prolific writer, the author of several books, and a newspaper columnist as well as the last president to write his own speeches, and rather lengthy ones at that. He is not the type for purple prose, but plain speaking and his views are as solid as Vermont granite.

MB: Good Morning, Mr. President. I’d like to start our interview by asking you what you were like as a little kid.

CC: When I was a little fellow, as long as I can remember, I would go into a panic if I heard strange voices in the house. I felt I just couldn’t meet people, and shake hands with them. Most of the visitors would sit with mother and father in the kitchen, and it was the hardest thing in the world to have to go through the kitchen door and give them a greeting. I was almost ten before I realized I couldn’t go on that way. And by fighting hard I used to manage to get through that door. I’m all right with old friends, but every time I meet a stranger, I’ve got to go through the old kitchen door, back home, and it’s not easy.

MB: Yet you got into politics young. It’s hard to imagine your politics were well considered. What were they like?

CC: When I first went to the legislature I was a very young man. I suppose those who voted for me considered me a radical or a liberal. I had only been a member of the Legislature a few months when I made up my mind that Massachusetts at any rate was legislating faster than it could administer and that the sane thing was to call a halt for the time being. I had not changed my views on these questions, but I had entirely changed my views as to what it was wise to do at the minute, and I changed my position and was probably called a conservative. I remember thinking at the time that neither the so-called liberals or the so-called conservatives would understand me. Perhaps both would think I was dishonest or at least not firm in my convictions, and my career would end with that session of the Legislature. Apparently they had more faith in me than I thought they would have.

MB: What would you recommend to young people today?

CC: Do the day’s work. If it be to protect the rights of the weak, whoever objects, do it. If it be to help a powerful corporation better to serve the people, do that. Expect to be called a standpatter, but don’t be a standpatter. Expect to be called a demagogue, but don’t be a demagogue. Don’t hesitate to be as revolutionary as science. Don’t hesitate to be as reactionary as the multiplication table. Don’t expect to build up the weak by pulling down the strong.

MB: That sounds a lot like you’d expect everybody to go into politics. Aren’t there better jobs?

CC: One should never trouble about getting a better job. But one should do one’s present job in such a manner as to qualify for a better job when it comes along.

MB: Oh, oh. Here comes a lecture on character from an old guy.

CC: Character is the only secure foundation of the state. Civilization is always on trial, testing out, not the power of material resources, but whether there be, in the heart of the people, that virtue and character which comes from charity sufficient to maintain progress. We must forever realize that material rewards are limited and in a sense they are only incidental, but the development of character is unlimited and is the only essential. There is no surer road to destruction than prosperity without character.


MB: Let’s change the subject. Now, personally, Mr. President, I take a very dim view of partisanship. There’s no doubt that you were a Republican and a conservative. But, you’ve had some time to think now. What’s your present view?

CC: There is no salvation in a narrow and bigoted partisanship. But if there is to be responsible party government, the party label must be something more than a mere device for securing office. Unless those who are elected under the same party designation are willing to assume sufficient responsibility and exhibit sufficient loyalty and coherence, so that they can cooperate with each other in the support of the broad general principles, of the party platform, the election is merely a mockery, no decision is made at the polls, and there is no representation of the popular will. Common honesty and good faith with the people who support a party at the polls require that party, when it enters office, to assume the control of that portion of the Government to which it has been elected. Any other course is bad faith and a violation of the party pledges.

MB: But why does it have to be so adverse? When a party takes power, does it have to shove it policies down the other side’s throat all the time?

CC: When the country has bestowed its confidence upon a party by making it a majority in the Congress, it has a right to expect such unity of action as will make the party majority an effective instrument of government. This Administration has come into power with a very clear and definite mandate from the people. The expression of the popular will in favor of maintaining our constitutional guarantees was overwhelming and decisive. There was a manifestation of such faith in the integrity of the courts that we can consider that issue rejected for some time to come. Likewise, the policy of public ownership of railroads and certain electric utilities met with unmistakable defeat. The people declared that they wanted their rights to have not a political but a judicial determination, and their independence and freedom continued and supported by having the ownership and control of their property, not in the Government, but in their own hands. As they always do when they have a fair chance, the people demonstrated that they are sound and are determined to have a sound government.

Your Host: I don’t know if you’ve ever listened to my show before, but if you have, you know I’m an atheist. I know you are a believer. Any thoughts on that?

CC: It is hard to see how a great man can be an atheist. Without the sustaining influence of faith in a divine power we could have little faith in ourselves. We need to feel that behind us is intelligence and love. Doubters do not achieve; skeptics do not contribute; cynics do not create. Faith is the great motive power, and no man realizes his full possibilities unless he has the deep conviction that life is eternally important, and that his work, well done, is a part of an unending plan.

MB: Who said we have to be great men?

CC: A wholesome regard for the memory of great men of long ago is the best assurance to a people of a continuation of great men to come, who shall still be able to instruct, to lead, and to inspire. A people who worship at the shrine of true greatness will themselves be truly great.

MB: Are you a great man?

CC: It is a great advantage to a President, and a major source of safety to the country, for him to know he is not a great man.

MB: Wow. Can I quote you?

CC: The words of the President have an enormous weight and ought not to be used indiscriminately.

MB: You got me off topic. We were talking about your belief that atheists can’t be great men. Isn’t that just another form of bigotry?

CC: Bigotry is only another word for slavery. It reduces to serfdom not only those against whom it is directed, but also those who seek to apply it. An enlarged freedom can only be secured by the application of the golden rule. No other utterance ever presented such a practical rule of life.

MB: I’m glad you feel that way, but is our country there yet?

CC: The encouraging feature of our country is not that it has reached our destination, but that it has overwhelmingly expressed its determination to proceed in the right direction.

MB: No doubt. But, my experience lately dealing with some other conservatives is that if you think the country needs to change in any way, you are a “progressive,” an America hater or the like, whereas some on the left seems to think that any culture other than our own is superior.

CC: Not all those who are working to better the condition of the people are Bosheviki or enemies of society.

MB: One of the chief differences between the right and the left seems to be their feelings about business and the accumulation of wealth.

CC: The chief business of the American People is business. In all experience, the accumulation of wealth means the multiplication of schools, the encouragement of science, the increase of knowledge, the liberties, he widening of culture. Of course the accumulation of wealth cannot be justified as the chief end of existence. But we are compelled to recognize it as a means to well-nigh every desirable achievement. So long as wealth is made the means and not the end, we need not greatly fear it. And there never was a time when wealth was so generally regarded as a means, or so little regarded as an end, as today.

MB: Speaking of business, what are your views about the taking over of certain businesses by the government in response to crisis?

CC: The government has never shown much aptitude for real business. The Congress will not permit it to be conducted by a competent executive, but constantly intervenes. The most free, progressive and satisfactory method ever devised for the equitable distribution of property is to permit the people to care for themselves by conducting their own business. They have more wisdom than any government.

MB: You were always pro-business.

CC: If business can be let alone and assured of reasonable freedom from governmental interference and increased taxes, that will do more than all kinds of legislation to relieve depression. Local governments are justified in spending all the money necessary for direct relief of distress. But the nation and the states will only increase the difficulties by undertaking to restore confidence through legislation. It will be the part of wisdom to give business a free hand to supply its own remedies.

MB: One of the other big differences between the two parties is their economics – their views on spending and taxes.

CC: The people ought to take no selfish attitude of pressing for removing moderate and fair taxes which might produce a deficit. We must keep our budget balanced for each year. That is the cornerstone of our national credit, the trifling price we pay to command the lowest rate of interest of any great power in the world. Any surplus can be applied to debt reduction, and debt reduction is tax reduction.

MB: So, you are not one of those anti-tax conservatives?

CC: The appropriation of public money always is perfectly lovely until some one is asked to pay the bill. If we are to have a billion dollars of navy, half a billion of farm relief, etc. The people will have to furnish more revenue by paying more taxes. It is for them, through their Congress, to decide how far they wish to go. I would not want to be misunderstood. I am not advocating parsimony. I want to be liberal. Public service is entitled to a suitable reward. But there is a distinct limit to the amount of public service we can profitably employ. We require national defense, but it must be limited. We need public improvements, but they must be gradual. We have to make capital investments, but they must be certain to give fair returns. Every dollar expended must be made in the light of all our national resources and all our national needs.

MB: I guess you can’t separate taxes from spending. I presume you don’t approve of the massive spending going on today.

CC: Nothing is easier than spending the public money. It does not appear to belong to anybody. The temptation is overwhelming to bestow it on somebody. A good many proposals are made by people that have very excellent things that they would like to have the Government do, but they come from people that have no responsibility for providing ways and means by which their proposals can be carried out. I don’t think in all my experience, which has been very large with people that come before me in and out of Government with proposals for spending money, I have ever had any proposal from anyone as to what could be done to save any money. Sometimes linked with the proposal for an immediate large expenditure is the suggestion that it ultimately will result in a saving. I think that is about the extent of the outside assistance I have had in that direction.

MB: You’d agree or disagree that there are certain things only the federal government can do though?

CC: One insidious practice which sugar-coats the dose of Federal intrusion is the division of expense for public improvements or services between state and national treasuries. The ardent States Rights advocate sees in this practice a vicious weakening of the state system. The extreme federalist is apt to look upon it in cynical fashion as bribing the states into subordination. The average American, believing in our dual-sovereignty system, must feel that the policy of national-doles to the states is bad and may become disastrous. We may go on yet for a time with the easy assumption that ‘if the states will not, the nation must.’ But that way lies trouble. When the National Treasury contributes half, there is temptation to extravagance by the state. We have seen some examples in connection with the Federal contributions to road building. Yet there are constant demands for more Federal contributions. Whenever by that plan we take something from one group of states and give it to another group, there is grave danger that we do an economic injustice on one side and a political injury on the other. We impose unfairly on the strength of the strong, and we encourage the weak to indulge their weakness.

MB: Ah, states rights. That has been an unresolved issue in this country since its inception, no?

CC: I am fearful that this broadening of the field of government activities is detrimental to both the Federal and the state governments. Efficiency of federal operations is impaired as their scope is duly enlarged. Efficiency of state governments is impaired as they relinquish responsibilities which are rightfully theirs. Unfortunately the Federal Government has strayed far afield from its legitimate business. It has trespassed upon fields where there should be no trespass. If we could confine our Federal expenditures to the legitimate obligations and functions of the Federal Government, a material reduction would be apparent. But far more important than this would be its effect upon the fabric of our constitutional form of government, which tends to be gradually weakened and undermined by this encroachment. The cure for this is not in our hands. It lies with the people. It will come when they realize the necessity of State assumption of State responsibility. It will come when they realize that the laws under which the Federal Government hands out contributions to the states are placing upon them a double burden of taxation–Federal taxation in the first instance to raise the moneys which the Government donates to the states, and state taxation in the second instance to meet the extravagances of state expenditures which are tempted by Federal donations.

MB: So, the federal government should mind its own business.

CC: Perhaps one of the most important accomplishments of my administration has been the minding of my own business.

MB: Even when it comes to violations of the constitution.

CC: Some people do not seem to understand fully the purpose of our constitutional restraints. They are not for protecting the majority, either in or out of the Congress. They can protect themselves with their votes. We have adopted a written constitution in order that the minority, even down to the most insignificant individual, might have their rights protected. So long as our Constitution remains in force, no majority, no matter how large, can deprive the individual of the right to life, liberty or property, or prohibit the free exercise of religion or the freedom of speech or of the press. If the authority now vested in the Supreme Court were transferred to the Congress, any majority no matter what their motive could vote away any of these most precious rights. Majorities are notoriously irresponsible. After irreparable damage had been done the only remedy that the people would have would be the privilege of trying to defeat such a majority at the next election. Every minority body that may be weak in resources or unpopular in the public estimation, also nearly every race and religious belief, would find themselves practically without protection, if the authority of the Supreme Court should be broken down and its powers lodged with the Congress.

MB: We’re almost out of time. Quick. What do make of the public union controversy?

CC: There is no right to strike against the public safety by anybody, any time, anywhere.

MB: And any advice on how to handle our financial crisis?

CC: When depression in business comes we begin to be very conservative in our financial affairs. We save our money and take no chances in its investment. Yet in our political actions we go in the opposite direction. We begin to support radical measures and cast our votes for those who support the most reckless proposals. This is a curious and illogical reaction. When times are good we might take a chance on a radical government. But when we are financially weakened we need the soundest and wisest of men and measures.

MB: Thanks for coming by Mr. President. It’s remarkable that when you speak long after your death it sounds so much like many things you’ve written in the past – in fact, exactly so, as if someone took your writings and tweeked it with just a little editing. I hope you come back too as we haven’t even talked about foreign affairs or your interests in liberty.

You've been listening to Metaphysical Booknotes. A previous broadcast can be found in our archives at 6/17/08.

Three Cheers for the Union Jack

The first post on this subject was Three Cheers for England, which covered the first five of the ten greatest events in British history. This will cover the next five and is entitled Three Cheers for the Union Jack, which sneaks Scotland into the fold. Sure, it’s arbitrary, but, it’s no fun to just write ten things that were maybe okay in British history.

5. Winning by losing - . The events of the decade,1664-1674, changed the course of history. They might surprise you, a little, because the loser was the winner. We call that unintended consequences.

Remember, for almost the first century and three quarters of European settlement in America, it was British, not United States’ history. 1664 was a momentous year. In 1607 Britain had begun a successful colonization at Jamestown, Virginia. Actually, it was only eventually successful. At the beginning, it was a disaster - starvation, illness, war and death being prevalent. But, eventually, you know what happened. In 1609, the very famous Captain John Smith, whose life was far more exciting and dangerous than any movie or tale about him has ever shown, left the hellhole of Jamestown. A few years later he was surveying New England including an area he named New Plymouth. A colony was established there six years later by a group of English Separatists we know as the Pilgrims. You know the names from early school – The Mayflower and The Mayflower Compact, Plymouth Rock, Thanksgiving, Miles Standish and so on.

Not much later the Massachusetts Bay Company founded a colony which was soon thereafter heavily populated by Puritans, which, despite a lot of confusion, are not the same as Pilgrims. An early governor, John Winthrop, gave the City on a Hill speech on his way to America in 1630. Late in the century, the Massachusetts Bay Colony swallowed up the smaller Plymouth colony.

The British were not the only Europeans to follow up on Columbus. The French, the Spanish, the Dutch and the Portuguese (Russians, Swedes and I'm sure others) were exploring all about, fishing and trading with the Indians. Around the same time as the Massachusetts Bay Colony’s meager beginnings, the Dutch followed up well over a decade of exploration around Manhattan and founded the colony of New Netherlands and the settlement of New Amsterdam. The timing of the development of the two colonies is complicated and I could not say who really has primacy (although Jamestown and Plymouth definitely preceded both). It didn't matter to the British who believed that the settlement at Jamestown gave them the right to the entire continent.

The European countries were not like today, by any stretch. They were competitors and sometimes violently so (in 1565 the Spanish slaughtered hundreds of French in Florida near St. Augustine, starting the fun). 

Between 1652 and 1674 the Dutch fought three naval wars (a fourth soon after if you include England’s Glorious Revolution, a Dutch invasion, and yet another one during our own revolution the next century). The first of these three wars was a draw, the second a Dutch victory and the third mostly a Dutch victory too, but ended with a treaty, the importance of which was not then recognized. Maybe it’s still not.

But, first, in 1664, something seemingly just a move on the global chess board, but actually quite momentous, happened. There was officially peace between the two powerful maritime nations after their first war. But, then, under a patent to The Duke of York, a British fleet appeared off the Manhattan coast. Peter Stuyvesant, the director of the Dutch East India Company, had no way to defend the colony and they surrendered. Actually, the leading citizens petitioned to him not to fight. New Amsterdam became New York. Actually, nothing happened to the Dutch citizenry or the many other peoples who resided in what was already an extremely diverse population. The English guaranteed the rights of the residents, and the transfer of power went fairly smoothly. Many Englishmen already lived and already had much influence there, and once the English conquered, the Dutch, who were the preponderance of wealthy citizens, continued to dominate the fairly autonomous government.

But, this act arguably was among those that set off the second Anglo-Dutch War, although the reasons were more so commercial, and which war ended two years later in a Dutch humiliation of the British. Yet, as there was no treaty signed, just the neutering of the English fleet, Manhattan Island remained New York.

After that, though, the English rebuilt their fleet. They were not looking for another war with the Dutch, but France’s Louis XIV was and Britain was bound to him at the time. Louis was unsuccessful in his land invasion due to the Dutch brilliantly using their lowland position and letting water in to block the French troops. So, along with the British navy, they attacked the Netherlands by sea. Once again, the Dutch humiliated the British fleet along with the French fleet to boot. More, as is little known and definitely not taught to American high school students, the Dutch (the nation though, not the Dutch East India Company, which had controlled it until then) actually retook Manhattan in 1673. And, this time there was some actual fighting. It was brief, as the British were not prepared to defend themselves either. Everything that had been changed by the British was changed back and that included the official language.

And then, with the English Parliament refusing to pay for more war, another treaty was signed in 1674. The Dutch and British essentially exchanged some island colonies to bring back the status quo. The Dutch received a number of islands in the southern climes and the British got New York back (which by the way – was known in the interlude as New Orange, after the house of Orange – and I bet you never learned that in high school).

Why is this important? The British had lost two wars in this turbulent decade, yet managed to wind up with the prize. Not that the Dutch really cared that much. Their other holdings were more important to them. The Dutch were on the rise at the time at least for a little while longer. I am not suggesting that America might have ended up Dutch if the British had not acted prudently, but it is possible. The following decade the Dutch William became Britain's king, and there were Dutch troops there for a while and then an alliance against France. The Dutch naval power began its decline and the Brits their great rise.  And, if we swing ahead almost two century, Winston Churchill pointed out that the most fortuitous thing for the British in WWII was that they and America spoke the same language. And, it was the British Empire and America which saved the free world in the 20th century.

4. Three little rules – There is no doubt that Albert Einstein was brilliant. After his Annus Mirabilis (Miracle Year), many other scientists, even many of those who quarreled with him about the science, recognized that there was something special about him. Yet, it has to be acknowledged that he reached so far for the stars, he was very often quite wrong about some his theories. The right ones however, being so important, easily drown out his misses. Einstein is often put in a scientific league which is occupied by only one other person – Sir Isaac Newton. As much as I appreciate Einstein’s mind and theories (to the degree I can understand them), I do not think he can compare to Newton, who revolutionized science in many fields. Although it may be argued by some that Gottfried Leibniz, who independently discovered some of innovations to calculus at the same time as Newton, was as brilliant, this is about Britain, and we will not consider him.

Even studying Newton biographically is an awe inspiring task. His work with physics and astronomy has dominated the hard sciences for over 200 years until Einstein’s theories of relativity. His Philosophiæ Naturalis Principia Mathematica (“Mathematical Principles of Natural Philosophy"), published in 1687, provided the world with the two of the most practical and dramatic theories ever discovered – gravitation and the three laws of motion.

Einstein did not prove Newton wrong with relativity theory, just that there was more to it than Newton could have understood. And, just as Einstein worked from the discoveries of others, Newton too acknowledged “If I have seen a little further, it is from standing on the shoulders of giants” (which was not his saying – but many centuries old – look up Bernard of Chartres).

Without even discussing his theories of optics and sound, his discoveries (even if shared) in differential and integral calculus, other mathematical developments and his building of a useful reflecting telescope, the theories of gravity and motion made a couple of centuries of technological wonders possible and are the basis for all modern physics – even to some degree relativity.

There is actually a controversy with gravity too, this time with another genius, Robert Hooke. Newton acknowledged that Hooke and even others had conceived of the theory of gravity's main principle – the inverse proportion between gravity and the square of distance (I sound like I understand the math, don't I?) However, he pointed out that without his proofs, the theory was mere guess work, and he also claims he learned nothing new from Hooke (although some scholars recently dispute that).

Yet perhaps his greatest achievement were the three little laws of motion. I’m certainly not a physicist. I never took it in high school or in college (although, oddly, I took a course my freshman year called Physics0/WesternCiv0, which was neither a physics course nor a civics course – long story). But, I read laymen physics books and articles for fun and like to speculate on it. Here, I’m going to give the watered down of the law from the Principia which seem so simple now, it is hard to see at this late date, why Aristotle or someone like him didn’t figure it out.

One - a body initially at rest or in uniform motion continues in that state unless a force changes it. This is the law of inertia.

Two - The change of momentum of a body is proportional to a force made upon it, and the change is made along the same line on which the force is made.

Three – to every action there is an opposite and equal reaction.

These laws are the basis of classical mechanics (which preceded relativity) and work in the world at large as we know it. The rules break down or must be modified at extremely high speeds or extremely small sizes, which is where relativity and quantum mechanics come into play. But, together with his theory of gravity and calculus, it explained all mechanical physics at the time.

Of course, science didn’t stop there and if not Newton, some day these theories would have been discovered by someone else. But, he put a rocket under the physical sciences. Einstein himself has said:

“[Newton’s] clear and wide-ranging ideas will retain their unique significance for all time as the foundation of our whole modern conceptual structure in the sphere of natural philosophy.”

“In my opinion, the greatest creative geniuses are Galileo and Newton, whom I regard in a certain sense as forming a unity. And in this unity, Newton is [the one] who has achieved the most imposing feat in the realm of science.”

When Albert Einstein, the third man on that Mt. Rushmore, says you achieved the most imposing feat in the realm of science, everyone should listen.

Two things in this world have made our lives so good – the development of a social order that gives us unparalleled freedom in the history of nation-states, and the development of science which has made it so much easier to live and enjoy ourselves, and gives us so much time to read about Newton and Einstein or anything else we want. In the words of Austin Powers – “It’s freedom, baby, yeah.”

3. The Glorious Revolution of John Locke – That’s a little pun there, son, you see. The Glorious revolution was the defeat of King James II of England by parliamentary forces and a Dutch invasion, putting King William of Orange-Nassau on the throne. But, it wasn’t as simple as that. As part of the deal, William agreed to the English Bill of Rights in 1689, the basis of much of our own bill of rights almost 100 years later. Although much more was needed to be accomplished in terms of individual rights, it was a landmark achievement of liberty in the world.

That same year, John Locke, returned to England after exile, published his Two Treatises on Government.

The first treatise was an argument against absolute monarchy – the divine right of kings. Locke had written it at the beginning of the decade, but clearly, with the Glorious Revolution and the Bill of Rights, England didn’t need him to publish in order to come to the same conclusion.

It is his second treatise that is of interest today. In it, he had some revolutionary ideas. Like others before him, particularly Hobbes, he had a social contract theory. Men were born free in nature (although, it might shock some who quote him that he qualified this with the idea that some people God clearly put in a position of authority over others). Men gave up some of their freedom for the security of a society – “for the mutual preservation of their lives, liberties and estates, which I call by the general name, property.”

Again, it might be shocking to some that this revered figure of liberty perhaps writes to justify slavery and conquest. This is not the consensus for most scholars, who claim he was arguing against a right of slavery. Maybe that's a post for another day.

His ideas on property seem to be an expansion of Hobbes and by capitalists and communists alike he is considered a father of capitalism (not that it didn’t already exist in practice).

It has to be remembered in judging Locke that he was a 17th century man, not an 18th century one. Although celebrated as a founder of modern democratic thought, he could accept things that would be more difficult for us. Thus, he was okay with forms of monarchy and oligarchies (although not absolute power). However, in his philosophy, there was a guarantee against their tyranny, and men were obliged to revolt when government stopped serving the people’s interests.

Not only didn’t England need him for the Glorious Revolution and the Bill of Rights, but they didn’t really even know what he wrote. Unlike Hobbes’ work, it was mostly ignored (which gives me hope that my own theory of our free will being actually under control of invisible aliens resembling M&M's will some day be taken seriously).

Although he had gained some renown in England, it was really long after his death in America that he gained his greatest fame, and his theories were put to good use in support of our revolution. And, we all know the magnification of freedom that came out of that little experiment.

But, Locke’s contributions were not limited to the Second Treatise. I am here ignoring his psychological and epistemological work, which were important, particularly as they inspired a number of other philosophers (like Hume, see below),  But, as I have two other events to get to,  I will just mention a little known work of his – really a letter – which also was ignored, but was a forerunner of better government and civil life. If you have an interest in enlightenment values, you take a look at Locke’s Letter Concerning Toleration, also written in the same year of 1689.

“Let anyone have never so true a claim to all these things, yet if he be destitute of charity, meekness, and good-will in general towards all mankind, even to those that are not Christians, he is certainly yet short of being a true Christian himself. . . It is in vain for any man to unsurp the name of Christian, without holiness of life, purity of manners, benignity and meekness of spirit.”

* * *

“The commonwealth seems to me to be a society of men constituted only for the procuring, preserving, and advancing their own civil interests.

Civil interests I call life, liberty, health, and indolency of body; and the possession of outward things, such as money, lands, houses, furniture, and the like.

It is the duty of the civil magistrate, by the impartial execution of equal laws, to secure unto all the people in general and to every one of his subjects in particular the just possession of these things belonging to this life. . . .?”

2. Like a bright torch on a dark night – That’s my description of the philosophy of David Hume, who I put in my own little pantheon, even over Locke. Hume, I believe, now out of fashion, was the wisest of the wise, not least because his philosophy is closest to my own. Isn't that how we usually judge brilliance?

Hume was a Scot, a member of a vaguely later defined group of Scotsmen who brought about what is now called The Scottish Enlightenment, whose work inspires and guides us down to this day. While Locke, who inspired Hume to some extent, is given great credit for inspiring our own founders, particularly Madison and Jefferson, the Scottish philosophers that came about in the next century probably did more so. I cannot even begin to cover them in the page or so I dedicate to them here, and will just speak of Hume, who I deem the greatest of them. However, I will recommend to any interested in the founders and what led up to them, Garry Wills’ great work – Inventing America: Jefferson’s Declaration of Independence, which details how the Scots, and not Locke, was Jefferson's inspiration (although, in later additions, Wills admitted he made a mistake in excluding Locke as an influence completely). Or, if you aren’t going to read a book, you might be interested in my own Thomas Jefferson and the Declaration of Independence (3/7/09) where I discuss Jefferson's sources, including what I learned from Wills (although the point of that essay was to cut Jefferson down to size, which is never Wills' point).

Hume was an empiricist (as was Locke) and his own A Treatise of Human Nature was revolutionary (the truth of much of it being proved by how unpopular it made him with those in power) and more far reaching than Locke’s Treatise on Human Understanding which long preceded him. Inspirational is not a big enough word for this work. He inspired Kant, who said Hume “woke me from my dogmatic slumbers.” Some credit this work with founding the modern science of cognition – that is – thought processes. I think it is a little too much to say, although certainly he made a great contribution. More, Adam Smith, perhaps the most practically important philosopher to come out of the enlightenment thanks to his work which explains the benefits of capitalism, The Wealth of Nations, credits Hume with heavily influencing his economic theories. Smith published a eulogy for Hume upon his death, which was brave in itself. Thomas Jefferson’s philosophy has been described as Humean and he himself (at least sometimes) recommended reading Hume or an imitator (for those who know my feelings about Jefferson, it is not his philosophy I criticize so strongly, but his character) although he had one picayune problem with him that colored his thinking and also made him harshly criticize him.

Even last century, he was highly influential to Karl Popper, who may be the most influential philosopher (even if still not widely known to the public) of the 20th century for his work on scientific theory (though I prefer his political theories), and also Ludwig Wittgenstein, Popper’s competitor. Wittgenstein's best friend, by the way, was David Hume Pinsett, the great philosopher's descendant.

You can throw in William James, John Stuart Mills and Arthur Schopenhauer too, but that’s just getting started. Charles Darwin's theory of evolution is deemed by most (sorry intelligent design theorists), as one of the greatest achievements of the 19th century. To see the degree to which Hume influenced him read http://roughguidetoevolution.blogspot.com/2009/06/david-humes-influence-on-charles-darwin.html.

But wait, there is still more. Einstein’s theory of relativity is considered the greatest scientific achievement of the 20th century, and for some, ever. Here’s what he wrote about Hume’s Treatise on Human Nature: “[Positivism] was of great influence on my efforts, and specifically E. Mach and still much more Hume, whose treatise on understanding I studied with fervor and admiration shortly before the discovery of the theory of relativity. It is very well possible that without these philosophical studies I would not have arrived at the solution. (translation taken from http://scienceforums.com/topic/3025-einsteins-intellectual-debt-to-david-hume/.

Is it unfair to say that the man who inspired or influenced Smith, Kant, Hamilton, Jefferson (although, again, in some aspects, TJ reviled him - but mostly his famous history, which he found too Tory - it's complicated), Popper, Wittgenstein, Darwin and Einstein was the greatest philosopher? He’s got my vote.

I cannot go through the entire output of Hume’s work here (he was a historian and economist as well as a philosopher), but I can state a few ideas which attract me and seem important. He wrote on the problems of induction, that is, whether we can prove causation by past experience. He didn’t invent the idea but is still the best guide to this day on the subject, and, he understood better than others that you can’t prove anything by past experience, you were crazy to ignore it – because experience is still the best guide. That may seem obvious as you read it here, but too often I am frustrated by the argument of others who condescendingly state that you can’t prove anything, to which I like to reply, that’s true, but it is always the argument of last resort by those who have no evidence at all.

Hume understood that we are emotional creatures and that our reason was dominated by passion rather than reason. ‘”Reason is, and ought only to be the slave of the passions." I would argue, that the need for science is, in fact, to help reduce the problems caused by the seductiveness of inductive reasoning and our natural inclination to confirm our feelings with faulty rationalization. Reason does exist to help us make judgments, Hume explained, but our passions determine what we do with these judgments. Thus morality is based on feelings, not reason. You can understand, I’m sure, how this would make him unpopular with religious groups.

All great thinkers stand on the shoulders of others, as Newton confirmed, but Hume was quite original. His theory of self is difficult to intuitively grasp. There is no self, in fact, no real essence of anything. We are a bundle of sensations that are linked by our memory as with a chain. To speak of a self without the properties is to speak as if there was a chain with no links. This is the opposite of Plato’s essentialism where the reality is the idea as an essence, and all copies a degradation of it. I am not sure if this would be born out by modern cognitive science centered on the workings of the brain.

Hume's religious philosophy would earn him the nickname The Great Skeptic. For example, he asked, if there is evil and God is all powerful, then he must be part evil. If he cannot control or stop evil, then he is not all powerful. Of course, like any prolific writer, there are aspects with which I would disagree, even vehemently.

If you don't at least momentarily feel like going out to buy a book on Hume after all this, then you just don’t like philosophy, which is fine. In the immortal words of Stan Lee, ‘’Nuff said”.

1 - Let’s wrap it up with the Great Man – I can’t write about Britain and not mention Winston Churchill. In World War II his greatest contribution was the indomitable will to survive and prevail he inspired in his nation. I’ve written on him specifically before, so I will just give two quotes here which riveted not just the British, but freedom lovers all over the world.

“Let us therefore brace ourselves to our duties, and so bear ourselves that, if the British Empire and its Commonwealth last for a thousand years, men will still say, ‘This was their finest hour.’”

* * *

“We shall go on to the end, we shall fight in France, we shall fight on the seas and the oceans, we shall fight with growing confidence and growing strength in the air, we shall defend our Island, whatever the cost may be, we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender, and even if, which I do not for a moment believe, this Island or a large part of it were subjugated and starving, then our Empire beyond the seas, armed and guarded by the British Fleet, would carry on the struggle, until, in God’s good time, the New World, with all its power and might, steps forth to the rescue and the liberation of the old.”

See more on this iconic figure at Move Over Einstein – The greatest man of the century is . . . (5/9/07).

And . . . All Hail Britannia!

Political update for March, 2011

Not Western Values?

Secretary of State Hillary Clinton spoke at the Human Rights Council in Geneva, Switzerland last week. After singing the praises of democracy and what I usually call enlightenment values, she said “Democratic change must grow from within. It cannot be implanted from the outside. And let me be among the first of many to say the West certainly does not have all of the answers.”

After more praise for things like democracy and free speech, she said: “These are not Western principles or American ideals. They are truly universal, lessons learned by people all over the world who have made the difficult transition to sustainable democracy.”

Clearly she is trying to maintain this administration's policy of differentiating themselves from the Bush Administration and appeasing Islam. And, just as clear, that’s just the kind of talk that makes Republicans and conservatives say "stop the apology tour.” Unlike some of my Republican/conservatives friends, I have never believed that Barack Obama is anti-American or wants us to fail. But, there is a question of whether he is using faulty tactics to further his foreign affairs strategy, and Secretary of State Clinton is helping to implement it. The strategy is to get other regimes to like us more and therefore be more cooperative with us. It’s hard to fault that as a desire. But, the tactics include apologizing for American behavior and displaying a level of humility which he hopes will highlight the difference between this administration and the Bush administration’s more muscular approach.

You’ve probably seen the clip of Barack Obama bowing to the King of Saudi Arabia and asked yourself – what’s up with that (unless you really believe Barack Obama is a Muslim and was acknowledging his lord and master)? I cringed. I watched it a few times to see if I was just falling for a right wing narrative – I don’t think so. It seemed to me the left wing dismissal of it as misreading the president's movements was a falser narrative. Then the Obama administration gave nearly a billion dollars to help rebuild Gaza after our ally, Israel, legitimately defending itself, took it apart, instead of letting Iran pay for it. It has to be wondered if this approach to winning hearts and minds scored any hits in Gaza with anyone but secret anti-Hamas Gazans. Then President Obama went to Cairo and made a speech which included:

“I've come here to Cairo to seek a new beginning between the United States and Muslims around the world, one based on mutual interest and mutual respect, and one based upon the truth that America and Islam are not exclusive and need not be in competition. Instead, they overlap, and share common principles -- principles of justice and progress; tolerance and the dignity of all human beings.”

That may have made some scratch their heads and ask in what Muslim country there was tolerance and dignity for all human beings, at least as we might recognize it? But, in fairness, that is not all he said:

“The United States has been one of the greatest sources of progress that the world has ever known. We were born out of revolution against an empire. We were founded upon the ideal that all are created equal, and we have shed blood and struggled for centuries to give meaning to those words -- within our borders, and around the world. We are shaped by every culture, drawn from every end of the Earth, and dedicated to a simple concept: E pluribus unum – ‘Out of many, one.’”

And also words which sound very much like the ones spoken by Hillary Clinton:

“That does not lessen my commitment, however, to governments that reflect the will of the people. Each nation gives life to this principle in its own way, grounded in the traditions of its own people. America does not presume to know what is best for everyone, just as we would not presume to pick the outcome of a peaceful election. But I do have an unyielding belief that all people yearn for certain things: the ability to speak your mind and have a say in how you are governed; confidence in the rule of law and the equal administration of justice; government that is transparent and doesn't steal from the people; the freedom to live as you choose. These are not just American ideas; they are human rights. And that is why we will support them everywhere."

It was a mixed speech, at best, frequently praising democracy and our values, but, while not ignoring militant Islam, he was quite tepid about it. As if - the two systems are different but equivalent. The two cultures are not equal when it comes to discrimination and abusive relationships built right into the system. He was clearly looking for the same type of reset he wanted with Russia. The problem is, as I see it, there aren’t any countries which seem to respond to his overtures. Russia? Iran? Gaza? Syria? No. No. No and no.

The truth is, many of the ideals Mrs. Clinton was speaking of in Geneva and the president in Cairo are in fact creations of Western civilization, at least in the sense that they have continuity and as we have them now. You can say, well, Confucius had a golden rule just like ours. But, China's history has not one of a free society. In fact, arguably, all the advances of China today are due to its adoption of at least a form of capitalism, and, all of its defects, ideology which has been at its greatest in the East – such as central planning.

The idea of democracy comes to us from Greece. The idea of separation of powers from there and Rome, and more recently the coin was termed by a Frenchman (Montesquieu). Most of the ideas of liberty we possess come from the rights of Englishman or were specifically designed by our founders – such as the first amendment religion clauses. While admonitions against and punishments for crime have been found in all organized societies, that is not what they were talking about. And, even if toleration has been found in some societies at some times and places (even in Islam), it was not sustained and institutionalized anywhere but the West.

We don’t have to claim we made up everything - there is nothing new under the sun, as we well know too - but the values of the West are one of the reasons that citizens of Islamic and others flock to the West, and not visa versa. There is nothing wrong with saying we got some things right and have sustained them, even if imperfectly, and the most important of them are the enlightenment values - and that includes capitalism. If we don’t claim these and promote them as better than other ideas, why would anyone else think they are a good idea?

The Middle East

It’s interesting, probably sad, to note, that despite the revolutions taking place across Northern Africa and the Middle East, the always volatile Gaza and also the more pacific West Bank have remained quiet. What are we to make of that?

The main reason has to be is that the groups that are rebelling are of the same country, peoples, religion and culture as they are protesting about. Tunisians against Tunisians, Egyptians against Egyptians, and so on. There is no doubt that Israel would view any rebellion as a threat to its existence and crack down hard, possibly even harder than Libya. It is also hard to imagine a Palestinian revolt being successful for the same reason. And they've tried before.

While the West Bank, ruled over by the Palestinian Authority finally seems to be determined to abstain from violent opposition, and to develop its infrastructure and society, and perhaps some day be free of occupation, Gaza has not.  But, it is surprising that Gaza’s leaders, Hamas, have had patience at this time and would not try to take advantage of the swelling of feeling in their neighbors, perhaps the world. This moment will pass and it looks like it will without there being an uprising. Perhaps it is because it is only 3 years since Hamas last tried and they are still rebuilding. Perhaps the last “war” was more than even their leaders could bear. Perhaps they are wiser than we in America give them credit for.

Complete peace is probably not possible while the current leadership of Gaza remains in power. But, it is also interesting to note that Gaza’s own people have not rebelled against their own leaders, which means they are either satisfied or cowed.

I won’t try and predict what is going to happen there and I won’t give my usual schtick about Israel needing to lead by getting out of its settlements in the West Bank. Since no one predicted the uprisings that took place, we can’t even begin to guess what will happen next.

But, let me say this. It is a shame. Although peace and a two state solution seems no closer than ever (despite revelations of how close it was while Ehud Olmert was Israel’s prime minister), it should happen. No conflict in the world has the same effect on the rest of the globe as this one. I wonder if I will ever see peace there in my lifetime.

And the winner . . . What? No one is running?

You just can’t tell. We were well into campaigning 4 years ago for the 2008 presidential election, and all we hear now is speculation. Newt Gingrich didn’t even announce forming an exploratory committee on March 3rd, as was expected, but only announced a website with the word explore in the address. So, now I guess we have exploratory committees to explore whether their should be an exploratory committee.

I’ve said before that the Speaker will be hard to predict, but I was betting against it, and I still will. Although fairly sure about Ms. Palin and Mr. Huckabee not running (which Fox has almost confirmed for us by not suspending their contracts), the idea machine is harder to predict with any certainty. But, I am sticking with my “no”.

Tim Pawlenty, who may have the best nickname, this time around, T-Paw, is still testing the water, but he won’t even get into his bathing suit yet. While Mr. Gingrich is busy burnishing his image with religious types by talking about his faith, in the hopes that they forget he cheated on his old wife with his new wife while he was blasting President Clinton for the same thing, Gov. Pawlenty is practicing his anti-gay rhetoric to help him win them over. It rather disgusts me, but he seems to believe it will help. In the meantime, I have some advice for him – never, ever give another stem-winding speech. He’s just not good at it and it doesn’t come out as sincere.

Whoever runs for the Republican nomination knows he has to please the south as a block, or his/her chances of winning are slim. That's not going to be difficult for a Sarah Palin or Haley Barbour, but others will have trouble. One of Mr. Gingrich's problems may be that he converted to Catholicism, his present wife's religion, and that is not big in the south. In my little southern town, I've calculated we have about 1 church for every 85 people, but not one of them is Catholic.

Of course, there are no Mormon temples in my town either, which brings us to Mitt Romney, who also hasn’t announced. I have to admit, despite my visceral distrust of him, and his palpable flip flopping, he still seems to be the only one of likely candidates who might beat the president in an election if it were held today. I do not believe any of the others so frequently mentioned could, other than perhaps Governor Huckabee (and he’s not running – I'm 97% sure).

Yet, I think that Gov. Romney is handling himself well, practicing his presidential airs, staying just out of the spotlight and keeping from saying anything controversial, or worse, stupid. There are polls which have made Ron Paul (not running) and Mike Huckabee (not running), the front runner. I think they are wrong. Among the hoi polloi, Gov. Romney is the true front runner on the right. However, he had better create some feeling of excitement, or he risks Bob Doling himself.

Jonah Goldberg wrote an article the other day where he made predictions about the Republican nomination which sounded a lot like he has been reading my posts (they all read me, you know – in fact, I am convinced that George Will is the guy who is constantly spamming my comments). But, I noticed that Mr. Goldberg didn’t even mention Sarah Palin once in his article. Something has changed in the last month, and as we move forward, it looks like Republicans of all stripes are beginning to recognize she is not running and, more probably, shouldn’t. That’s a big change in a month.

Last, Sen. Rick Santorum – please, for the sake of your family and those who cringe in embarrassment for you - don't run again. You have no shot at getting the nomination. None.

Most hated group wins in the Supreme Court

On October 10, 2010, I wrote the Churchill-Einstein-Gandhi award winning* post, Look, it’s their opinion – Snyder v. Phelps. The case had been argued before the Supreme Court at the time I wrote it, but not decided. It involves the first amendment rights of a church group and its members (who are mostly, I believe, one family) to stand down the street from the funeral of a serviceman and hold up horrid signs castigating the departed soldier, his family and America in general because of our sinfulness. Our sin, by the way, is tolerating homosexuals.

I stated there my opinion that the Phelps and their church were within their rights (however, like everyone who comments on this case, let me add – yccchhh) and I still hold that position, although I admit to weakening a bit. The court ruled 8-1 in favor of the defendants and the plaintiff, the bereaved father, who probably acted out of a sense of duty to his son, must even pay the court costs, although they are not extensive (it’s just the insult of it).

Robert’s wrote what you’d expect he would (if, of course, you have read my previous post, which was, incidentally, also just awarded the No Bell Prize for Legal Commentary*). The Westboro signs, the court stated, contained content which were primarily a matter of public, not private concern, but the church is subject to reasonable time, place and manner restrictions. At the time of the protest, Maryland did not have a criminal statute in place concerning funeral picketing (which law may or may not be constitutional), and the church group sought out the assistance of the local government and followed their rules. The government cannot prohibit speech simply because it’s offensive to some or even all to the speaker because of content.

The most important facts were as follows: “Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.”

The decision held no new law, but applied it to a set of extremely provocative facts that had attracted national attention.

But, I’ve been brief with the majority opinion, signed by all but one judge, for a reason - I've already covered it - and turn to that one judge, Samuel Alito, whose dissent left him alone on the court but probably higher in public opinion. And, despite being in the minority, perhaps he is right. Here’s what he wrote:

The Phelps have a right to express themselves, he acknowledges. They can do so in a myriad of ways and in a myriad of places. “It does not follow however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate. To protect against such injury, ‘most if not all jurisdictions’ permit recovery in tort for the intentional infliction of emotional distress . . . .” 

In order for speech to be available to make out a case for intentional infliction of emotional distress (“IIED”) the speech has to be “‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” And, the Phelps admitted that their speech was just so.

Sadly, Justice Alito points out that the strategy of saying horrible things at funerals “works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief.”

Moreover, he asserts, a reasonable observer looking at the Westboro signs would have believed they were asserting that the dead soldier and son, Matthew, was gay. There were also signs that were specifically addressed to his Catholicism (which the Phelps detest) and his military service. The law in some circumstances allows the prosecution of speech criminally and civilly even where it is mixed with protected speech.

Alito takes what he says are the 3 main positions of the majority opinion and declares them all wrong. First, he disagrees that the statements made generally concerned public matters, but were statements about Matthew and those were vulnerable to suit. Second, it matters not at all that the statements were not part of a private grudge, but only made because of a strategy to increase publicity for their views. To the contrary, Justice Alito argues that a private grudge should be more protected than an excoriation of a private citizen based on a cold and calculated strategy to garner publicity. And, third, it really shouldn't matter that the Phelps were protesting on a public street. Neither a physical assault or fighting words are immunized by being done in public - why should intentional infliction of emotional stress?

Justice Aliton finished with a philosophic or political argument rather than a legal one. “In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent.”

This is a very difficult case emotionally. It is not hard to believe that many people wish humiliation, pain and even death on the members of the Westboro Church for their cruel tactics. I know I despise them, and I'm sure the 8 justices aside from Alito do as well. A change in one of a number of single facts might have made a difference to me. If the church group had placed a sign in the church window where the funeral was held or stopped plaintiff’s car or shouted down the ceremony, it would be easy to say they crossed the lines. But, this is why the Phelps are so careful – they want their message heard and they are disciplined in obeying the laws so that they are not stopped.

However revolting the Phelps are, we protect their speech so that our speech is protected. Virtually every day online I see comments made, occasionally directed to me, which are hateful, false or designed to be hurtful. Only rarely do I see them rise to the level of the Westboro group, but once we cross the line of stopping some speech which is not violating a content-neutral law because most of us don't like it, where do we stop? I find, for example, many statements I read about ordinary American Muslims online and in the media offensive, but would not for a second wish that the speakers were prevented from offering their opinions or that they could be sued for having them. Certainly, I emotionally find such attacks on Nazis, Bolsheviks or fascists, for example, just fine. We cannot draw a line that is dependent on personal opinion of the speech's worthiness, nor the worthiness of the offender and offendee.

That being said, let me try to make an argument in support of Justice Alito’s opinions. Suppose instead of Catholics, who are perceived as a very large and powerful group, these statements were made about Jews, or blacks, or, unlike Matthew, actual homosexuals. Do you think the Supreme Court’s opinion might have come out differently? Suppose, if Matthew was Jewish, the signs said "Christ killers" and "They have all the money".  It is quite possible, although impossible to prove.

If the Phelps are constitutionally protected in making these purposefully hurtful statements, how can we justify any hate speech law that is not a face to face confrontation (where the fighting words doctrine kicks in)? Was this not anything but hate speech? Or, are we just going to pick some groups who are protected (say, blacks, Jews and gays) and too bad for everyone else? It doesn't seem morally right or legally just. In fact, in the case entitled R.A.V. v. City of St. Paul (1992) the court invalidated a hate symbol ordinance which prohibited certain symbols such as a burning cross or a swastika "which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender".

Finally, we do have a fighting words doctrine which allows laws to punish some speech made directly as a confrontation where the content seems to have know social value but seems likely to cause a violent reaction. Here, we must again remember that, first, the Phelps violated no law, and there was no confrontation at all. In fact, Mr. Snyder did not even know that there was a protest until later. The fighting words doctrine cannot apply even though I suspect that if the Dalai Lama’s mother was subject to the scurrilous statements made about her that Mr. Snyder later heard about his son, he’d want to punch some of the Phelps clan in the mouth.  

But, let me also offer one little silver lining. If a group as offensive and hated as Westboro Church can win in the Supreme Court, it tells us not everything is partisan and political, even if it sometimes seems so. The majority made, in my view, a wise and courageous decision. And though I appreciate Justice Alito's concerns, I think, in the end, he is wrong.


*I created the celebrated Churchill-Einstein-Gandhi Award and the No Bell Prize previous to finishing this post. It is not unexpected I will win more in the near future as other nominations are likely. I am considering establishing a Pull Its Ear Prize Award for Journalism, as well.