We have a new blog!!

Please visit http://ocfedsoc.blogspot.com. The new blog features events and contributions from all of the OC Federalist Society chapters.

This Just In: The Global Warming Debate is Still Unsettled

In case you were wondering, we still don't know the answers to, well just about any global warming questions. But it sort of makes you wonder: would we change any of our behaviors if we knew we were "killing" the planet? And what degree of certainty would we require? If scientists told us "well, we can't possibly say with 100% certainty, but we are 90% sure that global warning is caused by our emissions," would we say "bah! Get back to me when you're at 95% and we'll talk."

And even if science gave us an unequivocal 100%? Hey, we've always got Hume and the problem of induction.

I guess my point is, maybe we should stop obsessing over the degree of certainty, and start asking ourselves whether and what changes we'd be willing to make, and whether they would actually result in a reduction of utility--of the level of happiness in our lives. In other words, the famous pseudo-pragmatic Pascal's wager, applied to our ecological behaviors.

Judicial "Power"

What is power? What are we saying when we say the court has no power to do something? What a farce that is! What we mean to say, really, is that there is no theoretical justification, that doctrinally, or according to a philosophy of law, there is not right to do something. But this is not based in realism, in an objective view of political power. All power is mere force. In the state of nature, the biggest man had the most power. This was not "right" of course, but it was the reality. Then we create government. But this was no more than an agreement among the majority to pool their power together. Thus it is really no different than in the state of nature. When we make legal arguments, we are trying to manipulate the system created by the majority that is setup to exercise its power in favor of he who makes the better argument. Sometimes that argument makes the correct assessment of the abstract principles that the majority set forth. Somtimes it is defective. But no matter--as long as the defect is subtle enough, the majority won't notice, the system won't notice. The only danger, of course, is yet another real danger that the majority will figure it out later.

Thus we need to be careful when we say things like "the judiciary has no power to do that." If it gets the executive branch to enforce its judgments, then that is all the power we are talking about. There is no sense in talking about power in the abstract. The only power that affects us is that power that the state actually exercises. And courts can influence that nearly as well with bad rationales as with good ones.

Now this is just a little bit silly...

Apparently some people think that terrorists are masterminding plots around Lite-Brite technology. Beware all your children's seemingly innocuous toys!!

In the Beginning was Nothing

[From www.evangelicaloutpost.com]
In the Beginning was Nothing:
A Creation Story for Young Materialists

Throughout history children have been awed and thrilled by retellings of their culture's creation story. Aztec's would tell of the Lady of the Skirt of Snakes, Phoenicians about the Zophashamin, and Jews and Christians about the one true God -- Jehovah. But there is one unfortunate group -- the children of materialists -- that has no creation myth to call its own. When an inquisitive tyke asks who created the sun, the animals, and mankind, their materialist parents can only tell them to read a book by Carl Sagan or Richard Dawkins.

No child, though, should have to go without an answer which is why I've decided to take the elements of materialism and shape them into an accurate, though mythic, narrative. This is what our culture has been missing for far too long -- a creation story for young materialists.

Read the Creation story here.

Forcing diversity

Here's an interesting article by Thomas Sowell on the Supreme Court's consideration of a couple of affirmative action cases currently before it.

Idealism in words in not idealism in deeds

Thomas Sowell explains how the left's deeds might not match up to their claims.

Does taking the oath on the Bible matter if you don't believe in the Bible?

I tend to think that taking the oath on the Bible only means something if you believe in the Bible. Otherwise, you might as well be taking the oath on a book of matches. But maybe taking the oath on being inaugurated into office is different than taking the oath when you are swearing "to tell the truth, the whole truth, and nothing but the truth." Maybe taking the oath of office is more of a sign to your constituents as to the values you intent to uphold. And if that's the case, then maybe I'd side with Dennis Prager.

Does our government discriminate against the blind?

I don't know what to say about this article. Sure, maybe the Treasury should accommodate the blind. But is this really judicially enforceable? Is there some diabolical scheme to short change the blind?

Imams arrested for praying on airplane

Six imams were removed from a flight yesterday and arrested. Seems their numbers and religious habits are still distressing the American flying public. I can't say I disagree with the decision to remove them from the flight--whether the passengers' fears are justified or not, you can't have a plane full of panicked folks--arresting the poor imams seems indefensible.

Recommended Reading

Professor Bill Gangi, who recently spoke at Chapman, has added another recommendation to the law student reading list: Maurice Holland, “American Liberals and Judicial Activism: Alexander Bickel's Appeal from the New to the Old,” Indiana Law Journal 51 (1976): 1025. His other recommendations are here.

Stossel against special benefits for moms

Never afraid of controversial subjects, John Stossel explains why forcing employers to give moms special treatment is just wrong.

I'll admit that I tend to like any idea that espouses free trade and cuts back on government involvement. But I'm disillusioned that this is all just speculation talking about whether these policies are actually better or better historically grounded. After all, when have we ever had a truly free market? How can we know what level of government involvement is idea, or when it is even necessary in the first place?

Restricting development to maintain a "country feel"?

This article in today's Register is indicative of land use regulations as per usual after the death of Prop 90. Residents want to keep lower income people out of their neighborhood by banning a medium density housing project. They point to the "history" of their neighborhood, and draw parallels to San Juan Capistrano. I'm sure it's just a coincidence that Capistrano is a very affluent area.

Should this sort of thing be allowed? Clearly these owners are upset that their neighborhood didn't wind up being as good an investment as the original settlers of San Juan Capistrano. But if the market will not bear ritzy developments, should they be able to ban the kinds of developments that do make economic sense?

Sick, Sick, Sick

"Repugnant" doesn't quite capture it. This woman didn't want to have buy mayonnaise for triplets, so she gave the proverbial axe to two of them. Can you imagine finding out that you were to be one of three triplets, and mommy decided to off two of them to preserve her lifestyle? "And it coulda been you, sonny."

Abortion Legislation versus the Commerce Clause

Here is an interesting post, another example of a bed that Justice Stevens has made that he refused to lie down in. The author of Gonzales v. Raich, holding that possession of marijuana is an economic activity justifying federal regulation over insterstate commerce, can't see how a federal ban on partial birth abortion could also be justified under the same clause.

Religion, Government, the Middle East, and Statesman of the Year Victor Davis Hanson

The social-network idea of "six degrees of separation" has some truth in political philosophy also. Which is why I find it so very odd that some people are offended just standing next to a "Federalist." Federalists themselves are quite diverse, some espousing religious principles and others abhorring them, some advocating the concept of unenumerated rights, some lambasting it; some voting Yes on Prop 90, others voting No.

The law school Federalist chapter presidents were invited to the Claremont Institute Statesman of the Year dinner last night, a very elegant gala honoring Victor Davis Hanson. This was the second time in the last month that I’ve had the opportunity to listen to Hanson, an expert in classics and history and political philosophy, fluent in Latin and Greek, and an author of something like half a dozen books and hundreds of articles. Interestingly, he is a Democrat (although he calls himself a “classical Democrat”). It is interesting how some of our differences can seem so important, and actually be so insignificant. Or at least, we can begin to narrowly define where we disagree. That is assuming, of course, that we share certain common values.

Here are some reflections on his talks:

The United States was and is at least loosely based on Christian religious ideals. And there is a great tendency to look at the Islamic world and say that their religion may provide a similarly viable basis for an American-style government. But is this true? There are those who believe that religious morals are not basis for government in the first place, that religious values are arbitrary, antithetical to reason. Whether these objectivists are correct, it cannot be denied that American has been wildly successful. So perhaps we can at a minimum argue that Christianity provides a viable basis for a democratic government.

But can we say that any monotheistic religion can provide such a basis? Or is Christianity sui generis, a class alone? Perhaps Christianity can work, but this doesn’t mean that any other religion can work. This could be supported by looking at the history of Christianity, that it is a religion of few real laws or codes—it relies on a personal relationship, not of man-made dogma. (Notice that of all Christianity, Catholicism is the most lambasted, for the very reason that it enacts these kinds of man-made edicts that are so arbitrary and offensive to freedom and liberty. It is no accident that the Catholic church was wrapped up in the religious tyranny that sparked many to flee Europe for America.)

In essence, there are three types of paradigms our of which a government can spring up and be based upon. One is religion, and this is what America was based on. That is, most of the values and ideas we espouse are based upon religious values. The second is objective values, a la Ayn Rand’s objectivism. But this has never been tried. The last is nothing—nihilism, and that is what Europe is experimenting with. And it’s not working.

Today we are undermining the Judeo-Christian tradition that has led us to our greatness. We have not been vigilant in protecting free speech on the grounds of lack of taste or talent—but isn’t this the very reason why they should be protected?

We have subscribed to a guilt mentality. We blame the humane among us rather than the savagery of our enemies. Liberals require that we be perfect rather than merely good. We look at the ills of the world as if they can be healed by material treatments; we fail to treat them for what they are: problems with the soul. Our problems are nihilistic rather than material. We put stock in reason alone, rejecting God and revelation.

Islamic radicals loathe western liberalism, but at least they are honest about it. Which is why it is gaining a foothold in Europe. We must rediscover our strengths and origins, not to protect materialism, but to protect our founding principles.

Prop 90 Symposium Video Online!

The video of our very successful Prop 90 Symposium is now available online: http://www.chapman.edu/law/FedSocSymposium2006.asp

Pledge of allegiance banned at OCC

Maybe this should bother me, but it was spearheaded by socialist, so really, how can you take it seriously. Poor confused bastard.

Eastman on Immigration

Professor Eastman debated Western State University School of Law Professor Brennan this evening at a great event put on by WSU's Federalist Society chapter. I was finally able to hear Eastman's famous arguments on immigration and birthright citizenship. Here are a few of the arguments encapsulated:

The Fourteenth Amendment citizenship clause's requirement of birth or naturalization is a necessary but not sufficient condition to citizenship. Most assume that simply being born in the US makes one a citizen. But Eastman argues we must also give effect to the second requirement: "and subject to the jurisdiction thereof." This requirement must mean more than jurisdiction that one born here is subject to, otherwise the language would be rendered a nullity.

There is no case that holds that birth is enough to make one a citizen. The closest we get is a case that says birth will be enough for a chinese immigrant under a treaty that prohibits giving up Chinese citizenship.

To grant birthright citizenship would make folly out of guest worker programs. Guest workers would become permanent workers as soon as they had children: their children would be citizens, and the familial right attached would make any guest worker with a child a permanent worker.

Eastman would remind those who argue that immigrants are good for our economy, since "Americans" don't want to do manual labor, that this system of a "permanent underclass" is conspicuously reminiscent of 18th century plantations. Such a system is a travesty, a grave abuse of our social and economic institutions.

Our constitution is one of bilateral consent. It is an affront to our reason and values that an alien should be able to subvert our laws and unilaterally invoke entitlement to the rights of citizenship. This sort of act is not contemplated by our social compact governmental structure.

Pylon/Eastman Debate

Yesterday morning Professor Roger Pylon visited Chapman to debate Prof. Eastman on the source of unenumerated rights. These two giants are among the brightest to defend the Supreme Court's "worst decision" of Lochner v. New York, in which the Court recognized and defended the liberty to contract. Prof. Pylon gave a dazzling review of an entire year's worth of constitutional law in about 12 minutes. He described how we have come from a natural law tradition of first principles to a positivist nation. He described the Classical Liberals' distinction between rights and values, between skepticism and dogmatism. And we discussed how the Progressives mucked everything up beginning in the New Deal era, and how modern liberals have applied the idea of unenumerated rights against a hopelessly unprincipled scheme, basically pulling rights out of anywhere they could find them.

An interesting point of discussion was how Scalia and Rehnquist, darlings of the Federalist Society, as textualists are opposed to substantive due process. Scalia is reported as responding to questions about the Ninth Amendment by simply scoffing, just short of denying that there is such a thing as unenumerated rights.

Where Pylon and Eastman differ was a very limited, but very deep, point of discussion. Eastman argues that our founders’ religious tradition informs our values and the rights we have in the social compact. The states need to regulate more than just nuisances; they are also concerned with licentious behavior. The framers recognized points made by Montesquieu that religion made good citizens, and we can’t expect our society to function without this. Pylon argues that the Civil War amendments triggered a “rational reconstruction,” a sort of shift in constitutional power in which the states lost power to pass moral “value” legislation to restrict “rights.” Jefferson perhaps was only paying lip service to religion when he wrote “nature and nature’s God” in the Declaration of Independence. He posits that our constitution appeals to only to reason—not revelation.

Eastman seems to have the better of the originalism argument, but Pylon will attract more appeal from skeptics of religion.

Thanks to all that attended. We look forward to seeing you at the next event.

Is Christianity under attack?

This is an interesting exchange between two pastors and a sociology professor. The professor mentions that you would never hear any mention of God by a French official. This made me think of something that was said at a recent Ayn Rand Institute event I attended. Objectivism (Ayn Rand's philosophy) rejects religion as being irrational, but interestingly it rejects European post-modernism as far worse than American government's homage to religious traditions. The reason is that Americans, by believing in God, are at least trying to get things right by looking to a source of objective truth. Objectivists would say we just need to look to reason and science. But post-modernists' rejection of anything objective, and embracing something more like nihilism, is utter foolishness.

So long, Sadaam

No one will miss you.

Update on the anti-gay t-shirt case

This case was the topic of a debate between Professors Darmer and Eastman a couple of weeks ago. The question is whether students' first amendment rights extend to allowing them to wear t-shirts that express their religious/moral objections to homosexuality. There is a compelling argument to be made that we ought to protect homosexual students from the stigma that these t-shirts might create. But on the other hand, will this take us down the road to a jurisprudence of offensiveness? That is, do people have a right not to be offended, a right against which our first amendment rights are limited?

ACLU / Scalia debate

A very interesting recent debate between ACLU's Nadine Strossen and Justice Scalia. The issues are drawn very clearly, and Scalia explains exactly what it is about living constitutionalism--and natural law, for that matter--he takes issue with.

Don't blame me, I'm a determinist

The following is a transcript of a question posed to and answered by preeminent scientist Richard Dawkins about determinism. It is a delicious conundrum, and one that, in my experience, is quite impolite to bring up in friendly conversation. Quite like religion and politics. In fact this was brought up in the context of a discussion on religion, so the door of impropriety had already been flung wide open.

Richard Dawkins at Politics and Prose .. The God Delusion
Question and Answer

Questioner: Dr. Dawkins thank you for your comments. The thing I have appreciated most about your comments is your consistency in the things I've seen you written. One of the areas that I wanted to ask you about and the places where I think there is an inconsistency and I hoped you would clarify it is that in what I've read you seem to take a position of a strong determinist who says that what we see around us is the product of physical laws playing themselves out but on the other hand it would seem that you would do things like taking credit for writing this book and things like that. But it would seem, and this isn't to be funny, that the consistent position would be that necessarily the authoring of this book from the initial condition of the big bang it was set that this would be the product of what we see today. I would take it that that would be the consistent position but I wanted to know what you thought about that.

Dawkins: The philosophical question of determinism is a very difficult question. It's not one I discuss in this book, indeed in any other book that I've ever talked about. Now an extreme determinist, as the questioner says, might say that everything we do, everything we think, everything that we write, has been determined from the beginning of time in which case the very idea of taking credit for anything doesn't seem to make any sense. Now I don't actually know what I actually think about that, I haven't taken up a position about that, it's not part of my remit to talk about the philosophical issue of determinism. What I do know is that what it feels like to me, and I think to all of us, we don't feel determined. We feel like blaming people for what they do or giving people the credit for what they do. We feel like admiring people for what they do. None of us ever actually as a matter of fact says, "Oh well he couldn't help doing it, he was determined by his molecules." Maybe we should.. I sometimes.. Um.. You probably remember many of you would have seen Fawlty Towers. The episode where Basil where his car won't start and he gives it fair warning, counts up to three, and then gets out of the car and picks up a tree branch and thrashes it within an edge of his life. Maybe that's what we all ought to... Maybe the way we laugh at Basil Fawlty, we ought to laugh in the same way at people who blame humans. I mean when we punish people for doing the most horrible murders, maybe the attitude we should take is "Oh they were just determined by their molecules." It's stupid to punish them. What we should do is say "This unit has a faulty motherboard which needs to be replaced." I can't bring myself to do that. I actually do respond in an emotional way and I blame people, I give people credit, or I might be more charitable and say this individual who has committed murders or child abuse of whatever it is was really abused in his own childhood. And so again I might take a ..

Questioner: But do you personally see that as an inconsistency in your views?

Dawkins: I sort of do. Yes. But it is an inconsistency that we sort of have to live with otherwise life would be intolerable. But it has nothing to do with my views on religion it is an entirely separate issue.

Questioner: Thank you.

Positivism and Natural Right: The Itchy and Scratchy of our written constitution

Sometimes you start to wonder: why in the world did the Founders give us these textual provisions if they just wanted us to recognize the background principles? Why not just spell out the background principles, and their goals, kind of a declaration of purpose, and then say "go forth and govern"? Or if you don't believe that we should be governed by unarticulated background principles, our constitution is so ambiguous in many areas that room is left to interpret most any outcome. When we grapple with the text and then wind up ignoring it to honor some background princple, or twisting the words to get a desired outcome, our constitution starts to seem like it isn't worth the paper it's printed on.

I'm not sure if the founders really intended it, but I think perhaps the greatness of our system is that it really forces a lot of good discussion and debate on any changes in our government. If we were all just positivists, then we could just use clever wordsmithing and go about pursuing our passing motives. If we were just a common law system, we would just use clever philosophizing in the name of "natural law."

But instead of being purists in either sense, we have this very delicate and baffling dichotomy between both types of interpretation. Almost like a checks-and-balances system of one model of constitutional construction against another. We have this system of not only dual-sovereignty, but of dual constitutions: a constitution by text, and a constitution by natural right. And somehow we have to do honor to both. And it is ok that we don't get it perfectly right. Indeed, there is no way to get government perfect: it is not the sort of system that can be made perfect. It is a system to govern humans: humans in particular, with our particular history and values, and humans in general, passionate, complex, dissonant, and imperfect. Perhaps the beauty of our constitution is that it tracks the qualities of its governed so closely that it truly was and continues to be a government of, by, and for its particular people.

School suspension violates constitutional rights?

An 8th grader was suspended from school and claims that he's been deprived of his constitutional right to a public education. Story here.

Watch yourself, you might step in a constitutional right.

Blind Web surfers sue for accessibility

Wow. A blind man is suing Target because his translation software has trouble translating Target's website, so he can't shop online at target.com. Don't get me wrong, I sympathyze with the blind and disabled. But this strikes fear into the hearts of anyone within the scope of the ADA.

District Judge strikes down wiretapping

Here's Judge Posner on the Detroit District Judge who ruled that the NSA surveillance was illegal. He's not too sweet on her. He thinks that perhaps the rank of 700 or so district judges are not too terribly qualified to rule on matters of national security.

Police vs. the Judiciary

This story is a bit old, but I stumbled across it and thought I'd share. San Francisco Police Officer Nick Birco was killed when his police car was struck by a stolen van occupied by suspects who had just committed an armed robbery and were being pursued by SFPD units. This video was of a press conference given by the San Francisco Chief of Police, who is quite unhappy - to put it mildly - that one of his men was lost because of the unwillingness of local judges to keep a dangerous criminal behind bars. From http://www.nationalreview.com.

This is why I am decidedly not a libertarian when it comes to criminal procedure.