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Friday, January 2, 2015

What I learned from the Movies Released in 2014

 What I learned from 2014's Movies:

- If you want to keep stolen art, don't teach your children to Sieg Heil. The Monuments Men

- Spies should never keep their movie ticket stubs.  Jack Ryan: Shadow Recruit.

- Krazy glue is evil.  The Lego Movie

- Large government bureaucracies attract parasites whose purposes are directly contrary to those for which the institution was originally established.  Captain America: The Winter Soldier

- The future belongs to simians.  Dawn of the Planet of the Apes.  I didn't actually learn this from the movie, but from the group of teenagers sitting in front of us.

- Let the redhead go to England.  The Amazing Spiderman 2

- The best thing about living in a video game would be the reset button. Edge of Tomorrow

- Wings never die.  Maleficent

- Sometimes, the movie is better than the book.   The Maze Runner

- Diplomacy is not the answer.  War is the answer.  How to Train Your Dragon 2

- Star Wars would have been an even better movie if Chewbacca had been played by a walking tree. Guardians of the Galaxy

- Pediatricians should be chubby.  It's comforting.  Big Hero 6

- A child's room should be full of books.  This is vitally important to the future of humanity. Interstellar

- Never let your wife go into the woods.  Into the Woods

- Always tell your neighbors how long you'll be gone, before leaving on a vacation.  The Hobbit: The Battle of Five Armies

- Sometimes, having read the book makes the movie better.  Unbroken
- The Men who lived through WWII were bad to the bone.  Unbroken
- There are some things that can make me weep like a baby, and seeing a movie-screen sized Louis Zamperini running with the Olympic Torch in Japan is one of them. Unbroken

Thursday, January 1, 2015

James Madison: A Federalist and a Republican (Part 2 of a Review of Lynne Cheney's biography, James Madison, a Life Reconsidered)

{This is PART 2 of a Review of James Madison: A Life Reconsidered, by Lynne Cheney.  For PART 1, See:}

Lynne Cheney, in "James Madison: A Life Reconsidered" is not simply writing a biography.  Rather, like McCullough on Adams and Chernow on Hamilton, she is engaging in an act of advocacy. Cheney likes Madison, agrees with his views, and wishes to promote his importance in the American pantheon. Thus, she arbitrates every historical argument in his favor, and places him in the best possible light on every question and in each episode of his life.  I don't have a problem with this.  I actually like to understand how people saw themselves, and a sympathetic biography which argues its subject's side of every story is not a bad place to start.  I'm always in favor of a little hagiography when it comes to the founders.  I do love the Fourth of July.

Nevertheless, such advocacy can have its pitfalls, if it causes an author to gloss over tough issues, and thus skip over the most fascinating questions. Hence, the second big problem I had with Cheney's book is that it leaves largely unexamined the great conundrum of Madison's life: how to explain his sudden shift, once the Constitution was created and its Bill of Rights securely in place, from being the nation's leading Federalist, to its second most important Republican.  Indeed, given Cheney's sympathetic tone throughout, the reader can be excused for feeling a bit of whiplash as Cheney warmly admires Madison's achievements on behalf of nationalism in one chapter, only to have his arguments against federal power spoken of with equal fervor in the next.

Madison left the Constitutional Convention in Philadelphia terribly concerned that, should the delegates' handiwork be ratified, the resulting U.S. Government would not be nearly as strong as he had hoped. If he was bitterly disappointed that the small states had won the battle for equal representation in the Senate, he was even more completely mortified that the national government would have no veto right over state legislation.  This national veto over state laws had been a key element of Madison's Virginia plan, and had met little resistance until the closing days of the convention, when, to Madison's horror, this provision had been unceremoniously and inexplicably deleted from the Constitutional text.  How is it possible that a man with such views would, just a few short years later, work with Jefferson to craft the nullification resolutions in Virginia and Kentucky, arguing for exactly the opposite policy: that federal legislation should be subject to state veto?  How exactly does one understand this great irony?

For Cheney, a few brief remarks from Madison suffice:  Madison was interested in equipoise.  Under the unwieldy articles of confederation, the power of the individual states had made it impossible for anything of national importance to be accomplished in a unified fashion.  Once the Constitution had rectified this imbalance, it became equally important to prevent the national government from becoming overly powerful, and prevent the individual states from pursuing their own best interests. But such equipoise would never have been maintained under the Virginia Plan which Madison had brought to Philadelphia, so other factors were clearly at work in Madison's turnabout.

As it turns out, far more interesting theories than his own self-serving explanations abound.  Cheney's book would have been more interesting if she would have examined them. Instead, the reader is left to other sources.  For a pro-Madison viewpoint, one can review Gordon Woods' book, Revolutionary Characters, in its chapter entitled "Is There a James Madison Problem."  For a more cynical and much more interesting take, Joseph J. Ellis, in his book, American Creation, has examined the question in a chapter entitled "The Conspiracy." Both are great reads, and examine theories such as the following:

Was it Jefferson's influence?  This seems highly likely.  Madison always deferred to Jefferson's wisdom (although he also played an important role in bringing Jefferson's poetic rhetoric down to practical earth: a subject which Cheney does a great job on in some of the most enjoyable passages of her book).  Madison's turn away from Federalism and towards Republicanism accompanied Jefferson's return from France to take up a post in Washington's first Constitutional administration and was developed during a cruise up the Hudson river the two of them took together in 1791.  The fact that, late in his life, Madison would, once again, become an important voice in favor of the Union, during the nullification crisis of the 1830s, after Jefferson had passed away, lends further credence to this idea.

Was it just good politics?  The debate over whether to ratify the constitution had been particularly ugly in Virginia, where it had taken all of Madison's abilities to withstand the arguments of Patrick Henry and his fellow anti-Federalists against ratification, and eke out a narrow victory for the union cause. To the extent that anything the federal government did ever seemed to favor northern over southern interests (an inevitability in future compromises), the narrow support the Constitution had received in Virginia was likely to soon vanish.  Madison could only hope to remain in politics if he was elected to national office from his home state of Virginia.  And since only States-rightists were going to get elected in Virginia, Madison's about-face may be explainable via the most prosaic of all political realities: he simply did what he needed to do to get elected.  The same practical politcal strategy which has been followed by every politician who has ever tacked to the left or right during a primary, and back towards the center in a general election, was, perhaps, invented by Madison, who has been called not only the father of our Constitution, but also of our politics: If you want to serve in elective office, stand with the people whose votes you need.

Was it about slavery?  Any purely political reasons for Madison's turnabout raise the question of why Virginia politics required successful politicians to be wary of federal power in the first place. One obvious answer is the "peculiar institution" of slavery, which sourtherners feared a northern dominated federal government might one day abolish, as indeed ultimately occurred. The niceties and political hypocrisies of the day prevented any open reference to this subject by Jefferson or Madison as a motivating cause of southern political preferences.  (It was apparently somewhat annoying, when waxing eloquent on the thesis that the greatest capacity for republican virtue lay among southern agrarian planters, to be reminded that those same planters were engaged in the most obviously immoral, unvirtuous, and tyrannical activity ever known to man.)  Nevertheless, as argued by Ellis, the very silence of the southern founders on the question of slavery may be the best proof of its elephant-in-the-room status, and later Virginia politicians would be more forthright: "Tell me if Congress can establish banks, make roads and canals, whether they cannot free all the slaves in the United States."  Nathaniel Macon, as quoted by Joseph J. Ellis in American Creation, (Vintage 2007) at p. 175.  Slavery certainly played a role, and Americans who, today, find themselves overly enamored with Jeffersonian rhetoric about about republican virtue, would do well to temper their enthusiasm with a little salt.  In the ultimate test of regional virtue, the Civil War and the fight to abolish slavery, the Republican Jeffersonians were not only on the losing side of history, but the morally wrong side as well.   As Lincoln said, if slavery isn't wrong, nothing is wrong.  It took a strong federal government to end slavery, and then to end Jim Crow, and it took a union much stronger than anything Jefferson envisaged to fight the 20th Century's various forms of anti-republican totalitarianism.

Was it about economic ignorance?  Madison's shift from federalism occurred when he opposed the financial programs and policies initiated by his former friend (and collaborator on the Federalist Papers) Alexander Hamilton, during Washington's presidential tenure.  Hamilton's financial program was modelled after British institutions and policies which had allowed that nation to become among the most prosperous on earth.  Hamilton had spent years of private study learning about those institutions, and the implementation of Hamilton's proposed legislation during his tenure as America's first Secretary of the Treasury make him the most successful and important person to ever hold that office.  The Hamiltonian program allowed the new nation to finally gain a secure financial footing, which it had sorely lacked from the date it declared its independence, and laid the foundations for subsequent free market capitialism which would make Americans among the most socially mobile people on the planet.  Nevertheless, that program's implementation was fought by Jefferson and Madison every step of the way, and with an increasingly paranoid righteous fervor, which, as Ellis points out, can only be completely understood in light of the fact that Madison and Jefferson didn't understand the first thing about economics, and couldn't begin to comprehend many of the principles which Hamilton was talking about.  For all their political genius, Jefferson and Madison were no economic Einsteins: both men would die broke and deeply in debt.

Whatever the cause of Madison's dramatic turnabout, Cheney need not have shied away from this fascinating question, which ultimately strengthens her hero's claim to preeminent importance in American history.  Because Madison's reversal may be the most important thing he ever did for the Constitution.

In a sort of "only-Nixon-could-go-to-China" moment, by joining the ranks of the anti-Federalists, Madison turned them into something other than anti-Federalists.  He tranformed the anti-Federalist movement into Jeffersonian-Republicanism, whose new agenda no longer included overturning the Constitution, but, instead, simply seeking to interpret the Constitution narrowly, and in such a way as to limit federal power.  There is probably nothing Madison could have done to more powerfully secure the ongoing existence of the Constitution, then to thus end any debate over it's continued existence.  By converting the political movement known as anti-Federalism into small federal government republicanism, Madison ensured that the Constitution would survive.  When Jefferson came to office, he did simplify and shrink the size of the Federal Government.  But he didn't overthrow it.  Much of the Federalist program which had been developed over the past 12 years remained in place.  And Jefferson was canny enough to ignore his own limited-government principles when they might stand in the way of important national interests, such as the Louisiana Purchase.

In the meantime, Madison became the father of America's first opposition political party, and introduced party politics into American life.  As much as Americans may claim to hate partisanship, political parties played an important role in the ongoing existence of the union, and continue to stabilize the country today. After the Republicans replaced the Federalists in office, it was no longer possible for any future government to treat its mainstream political enemies as insurrectionist threats to the legitimate government, as the Federalists had done when they passed the Alien and Sedition Acts.  Rather, political parties, and the eventual tradition of those parties finding themselves peacefully rotating in and out of power, gave us a nation which had to tolerate and give credence to the idea of a loyal opposition.  This helped America avoid the fate of other post-revolutionary societies, where the guillotine or the coup d'etat was the only way for transitions of power to occur.

All hail to James Madison, one of the most important fathers of our freedoms.  Someday someone will write a book about him which does him greater justice.  But for now, Cheney's extremely readable and engaging tome will have to do.

Saturday, December 13, 2014

In Search of Principled Distinctions

Question One:


Other than the sympathies of the members of the judiciary, I can ascertain no principled distinction between these two cases.  If objective principles were applied to both cases equally, both cases should have had the same outcome: freedom from State compulsion to act against one's desires and religious beliefs.  The principles which should protect us against such compulsion (which were applied to the student who didn't want to say the Pledge, but not to the photographer who didn't want to photograph an event she disapproved of) include the following:

-"[N]o official, high or petty, can [under our constitution] prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." (Justice Jackson, W. Va State Board of Education v. Barnette (1943)[emphasis added].)

-"[G]overnment coercion of moral agency is odious."  Gilardi v. U.S. (D.C. Cir. 2013).

-"Penalties are impertinent" if they are used to "compel men to quit the light of their own reason, and oppose the dictates of their own consciences."  (John Locke 1689).

-"Government may neither compel affirmation of a repugnant belief [i.e., a belief a particular citizen believes to be repugnant] nor penalize or discriminate against individuals because they hold religious views abhorrent to the authorities."  Justice Brennan, Sherbert v. Verner (1963).

The creation of so-called "Human Rights Commissions" in some of the states is perhaps one of the most misguided political movements of my lifetime, being based on the Orwellian notion that the primary threat to our human rights is our fellow citizens, not our government, to whom we should look for protection from such abuses.  It was therefore inevitable that the "petty officials" of one of these absurd bodies, the New Mexico Human Rights Commission, would prove where the true threat to human rights lies, and begin violating the Constitutionally guaranteed liberties of New Mexico's citizens, and issue an "impertinent penalty" against a photographer who declined on religious grounds to accept the patronage of a same-sex couple who wanted her to photograph their committment ceremony.  How exactly was this decision upheld by the New Mexico Supreme Court?  On what principled basis did they determine that the commission, and their own court, could "force" the photographer "by . . . act" to participate in the new political orthodoxy of our time, requiring all of us to celebrate homosexuality and same-sex weddings, and thereby compel affirmation of a belief the photographer felt was repugnant, and, literally "penalize" the photographer "because" she held "religious views abhorrent to the authorities" on the commission?  On what basis were the monetary penalties they imposed upon the photographer, compelling her to "quit the light of her own reason and oppose the dictates of her own conscience" appropriate?

These are of course silly questions.  The court's decision was an exercise of pure political power, unmoored from any objectively applicable principles whatsoever.  Indeed, it was a refutation of the very idea that such objectively and universally applicable principles should ever apply, especially when there is a political victory to be won, liberal pieties to be upheld, and blasphemous political heretics to be punished.

Whatever your views on same-sex marriage, if you are an American, this should scare you.

Question Two:


Again, I can see no principled distinction between certain groups of citizens' very different reactions to these two cases.

Cliven Bundy used the threat of physical violence to continue stealing from a neighboring landowner. Michael Brown used the threat of physical violence to steal from a neighborhood shop owner.  If stealing is wrong, what's the difference between these two events?  If using the threat of violence to obtain something to which you are not legally entitled is wrong, then what's the difference?  Is it because Cliven Bundy's victim is almost universally despised: the Federal Government?  So would that make it OK for me to steal from someone you really dislike?

Cliven Bundy's supporters rallied to prevent the enforcement of a court order.  Michael Brown's supporters gathered to express outrage against the decision of a grand jury.  Both groups felt their cause was so just that they could ignore the rule of law and act outside the system of ordered liberty already available to us to fight for political causes, and that winning a political battle is more important than fighting that battle within established rules designed to prevent our political arguments from descending into violence.

Both groups ignored readily available court decisions written by objective third parties setting forth the essential facts of the cases, in favor of highly spun, politicized narratives which were largely based on private fantasy, available on their preferred television channels, radio talk shows, or online comment boards.  Both groups gave in to absurd leaps of logic: Cliven Bundy's statements that the Federal Government does not exist, and has no right to own land, such that only Clark County Nevada can charge him a grazing fee being accepted by his advocates at face value, when, in fact, if that were true, it would mean the Treaty of Guadalupe Hidalgo is void and he should be paying his grazing fees to Mexico, which is also owed a whole lot of back property taxes from the rest of us; Michael Brown's supporters walking around with their hands up in ridiculous "don't shoot I'm unarmed" poses that have nothing to do with anything that occurred that day.

Brown's supporters burned down local Ferguson businesses and hurt the economy of Brown's own home town.  Bundy's supporters repeatedly called early morning bomb threats into local Mesquite hotels (whose owners were adjudged guilty, French Revolution style, of insufficient devotion to the cause, by having allowed BLM agents to stay overnight), forcing them to evacuate their guests and causing economic harm to Bundy's own home town.

Media outlets have inflamed and agitated Brown supporters and caused violence, rioting and looting. Bundy called upon every wanna-be Timothy McVeigh in the country to come support his cause, and two of his guests were sufficiently agitated and inflamed to return home from Bunkerville and murder two police officers and a civilian.

In what universe is there any moral distinction between Brown and his Ferguson supporters, and Bundy and his Bunkerville supporters?  From where I'm sitting the only distinction seems to be based on skin-color, political affiliation, and whether you get your news from Fox or MSNBC/Comedy Central.

Question Three:


There are three paths a society can take: tending a bit too much towards anarchy, or tending a bit too much towards tyranny, or trying to stay on the proper Aristotelian median, and maintaining some semblance of ordered liberty. A society based on the right median road, maintaining ordered liberty, is the type of society most likely to produce a prosperous, happy, and self-sufficient people, capable of reaching their best potential and finding meaning in life.  It is also the most fragile form of society and government.

To be maintained, ordered liberty requires that a society's political players (which, in a democracy, is all of us) recognize, and adhere to, certain sound principles, transmitted to each new generation. These include: restrictions on the government's right to compel actions in violation of conscience; respect for the rule of law based on procedures and laws developed objectively and intended for universal application to various types of disputes; equality in legal treatment; the applicability of the law even to its creators and executors; separation of powers to create checks and balances upon governmental actions; free market economics; freedom of the press; and other similar principles.

When a society untethers itself from universal and objectively applicable principles, because its citizenry, judiciary, or other governing agents, come to believe that the ends justify the means as to certain political causes and battles, which are more important than maintaining political principles, the fragile system of ordered liberty quickly devolves and is replaced by a form of politics completely inconsistent with ordered liberty:  the politics of arbitrary and capriciously exercised power, leading to pervasive corruption and a cynical citizenry which no longer has any basis for patriotic loyalty to its society, but is instead dominated by individuals seeking to plunder the governmental commons for their own private interests.  The anarchy that follows leads to the rule of local militias and warlords in rural areas, and mob bossess and protection schemes in urban areas. You can see it in any third world country you may happen to visit: the gated and heavily guarded compounds of the few powerful and prosperous, with armed guards playing the same role developed by mercenary knights who guarded medieval moted castles, surrounded by the squalor of the peons.  The only answer to such anarchy is the eventual establishment of tyranny. Some countries get there quicker than others.  One of the signs that your society is walking along that road is when you find yourself perplexed by disparate treatment of and reactions to similar events, with no apparent basis in principle.

Tuesday, October 28, 2014

Some Thoughts on Religious Liberty. A Review of Lynne Cheney's James Madison, A Life Reconsidered, Part I

The first thing to know about James Madison, A Life Reconsidered, by Lynne Cheney (yes, that Lynne Cheney) is that it is very well written.  Cheney knows how to tell a good story, and the book is an engaging page turner.  The chapters on young Madison's involvement in organizing and securing the attendance of George Washington at the Constitutional Convention in Philadelphia, his advocacy for the Virginia Plan at that convention, the writing of the Federalist Papers, the debate against Patrick Henry and Henry's fellow anti-federalists to secure Virginia's endorsement of the Constitution, and the enactment of the Bill of Rights, Madison's most important achievements, each in its own way absolutely fundamental to creating the nation in which we now live, are especially compelling. If Madison was not the father of our Constitution, he was certainly its midwife, and this book deserves to be widely read if for no other reason than to tell that remarkable story.

It is therefore incredibly frustrating that I cannot give the book my full endorsement and that I was so severely disappointed in certain aspects of Cheney's narrative.  My most significant concern is with Cheney's botched treatment of Madison on religious liberty, a subject on which she gets seriously sidetracked by a pet theory which leads her far, far, astray.  Religious liberty is a subject which could not be of greater importance, and on which we need a true account of Madison's views, now more than ever.  Cheney refuses to give us one.  

Madison's Contributions to the Cause of Religious Liberty

Madison should be seen as one of the great heroes of American history, not only due to his role in forming the union, but also for his great achievements in advancing the cause of religious liberty and freedom of conscience.  His primary contributions to that cause are fourfold, each of monumental and hopefully enduring significance: 

1.  First, as a young, new, and still obscure member of the Virginia legislature which found itself in need of creating a new form of state government in the wake of the colonies' declaring of independence, Madison got himself appointed to George Mason's committee for establishing a Declaration of Rights and a Constitution for Virginia.  Mason wrote an article on religious freedom for the Declaration which was based on Locke's wording, about as far as the ball had been taken up until that time: "all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate."  But Madison was ready to advance the cause further than Locke.  Showing his political savvy, he worked through other, older and more prominent committee members, to obtain a rewording of the section into a statement that went beyond mere "tolerance" for minority or dissenting religous opinions: "all men are equally entitled to the free exercise of religion."  Equal freedom to exercise one's religion would now be recognized as a civil right in the largest and most influential of the 13 original colonies.

2.  Madison's second great contribution to the cause of religious freedom was his successful fight against a Virginia bill which would impose governmental taxes for the support of Christian churches. Having served my mission in a country where the two official religions were supported by church taxes administered and collected by the state, and your religion was considered a mere "association" (not a church) if its members tithed themselves voluntarily, I'm especially appreciative of this principle. Madison waged this particular fight through his anonymous authorship of the "Memorial and Remonstrances Against Religious Assessments" which killed public support for the bill.  The Memorial and Remonstrances is a remarkable document, which deserves to be far more widely read and remembered today than it is, setting forth, as it does, both the best possible theological arguments of a believing Christian, and the most compelling secular and political arguments of a gifted lawyer, for its assertions.  The document ought to be especially appreciated by Latter-day Saints, for its argument that Christianity existed in its purest form before it was corrupted by integration with the organs of the state, in passages which might have been written by an early Mormon Apostle explaining the apostasy and need for a restoration, and which one can imagine having been a familiar passage among early converts to the LDS faith:

"[E]xperience witnesseth that ecclesiastical establishment [i.e., establishments of religion, 18th Centuryese for official state churches], instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries [i.e., since the 3rd Century official incorporation of Christianity into Constantine's Roman Empire] has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect, point to the ages prior to its incorporation with Civil policy."

3.  Madison's third important contribution was utilizing his increasing political savvy and influence, as well as the political momentum generated by the Memorial and Remonstrances, to shepherd into law the Virginia Statute for Religious Freedom, authored by Thomas Jefferson, his life-long mentor. Madison was so enthusiastic about this victory that he wrote Jefferson exulting that he flattered himself that he and Jefferson had "in this country extinguished forever the ambitious hope of making laws for the human mind." Clearly, Madison, for all his foresight, could not predict 20th Century liberalism and political correctness.  Still, his vision proved true for many years to come, and has only in recent decades begun to crack under the weight of modern liberal puritanism and intolerance for dissent.  

4.  Finally, Madison was the chief advocate in the first Congress for passage of a Bill of Rights, including the First Amendment, whose final language was not quite as powerful as it could have been (had we stuck with Madison's original proposed language) but has, nevertheless, protected us against offical state religions (via the establishment clause) and against prohibitions on our freedom of religious exercise (through the free exercise clause) ever since.  

Ironically, in light of the ultimate importance of the Bill of Rights in modern American life, Madison's views on the subject were ambivalent.  He felt, initially, that a bill of rights was unnecessary. The federal government was supposed to be a government of enumerated powers in any event, and thus could not pass laws on subjects (such as gun ownership or religious establishments) beyond the scope of those limited powers which had been delegated to it, if such laws would infringe on areas which were left to the State governments of general jurisdiction.  Not only was a bill of rights therefore redundant, but such a list might confuse and dilute Americans' understanding of these systemic Constitutional workings and the protections they were designed to afford (as, indeed, some modern scholars argue has taken place). Nevertheless, upon realizing that the lack of a bill of rights was the most effective argument the anti-federalists were using to agitate for a second constitutional convention, where they could reject the Constitution outright and stymie the creation of another such document, Madison eventually reconciled himself to the idea, if primarily for political purposes, even coming to believe that a listing of such rights would have the salutary effect of making them well known to future generations of Americans who would thereby be more likely to jealously safeguard them, a truth which, as Cheney argues, could be attested by millions of future children, introduced to the Bill of Rights on their elementary school classroom bulletin boards. And so it was that, primarily with Madison's nudging and prodding and drafting and exhorting, the First Congress took time from other matters most of its members felt to be more important, to formulate the first Ten Amendments to the Constitution, and provide us with the Bill of Rights, which would prevent a second constitutional convention from ever being held, preserve the continuing support of the States whose ratification of the Constitution had been conditioned on the inclusion of such a listing, and thus save the Constitution from an early demise.  With the passage of the 14th Amendment, the Bill of Rights was no longer a mere instrument of federalism, delineating the boundaries of the federal government's law-making powers, but became a protection for all Americans against any encroachments of their rights by both national and local governmental entities, including, under the First Amendment, the right to freedom of religious exercise, and freedom from official state or national churches.    

Cheney's Epileptic Theory

Cheney has developed a theory on what motivated Madison's devotion to the cause of religious liberty, and it goes like this: (1) Madison suffered from occasional debilitating symptoms which he (rightly, and ahead of the science of his time) recognized as symptomatic of an affliction which was likely related to epilepsy, and perhaps a form of epilepsy, a view which modern science confirms.  (2) The Christian dogma of Madison's day treated epilepsy as a sign of spiritual uncleanliness, related to the stories of demon possessions in the New Testament.  (3)  Madison would have been familiar with this Christian dogma and would have been deeply troubled by the same, and would have grown to resent it. (4) Therefore, Madison would have been motivated to oppose political support for religious dogma, as a result of his bitterness over the religious views of his day on this subject.  "Madison's zeal" Cheney writes, in the cause of "religious freedom--which both [he and Jefferson] saw as part and parcel of intellectual freedom" was "likely heightened by the misery he knew as a young man when he realizedthat Christian orthodoxy insisted on a supernatural explanation for epilepsy." (p. 72).

Cheney makes a fairly sound case for the first element of her theory, and I can accept it.  Point two seems fairly strongly supported as well, although it is a perilous thing for a 21st Century author to try to understand the religious sentiments of bygone eras, and she may be on more shaky ground here.  I find for example that when outsiders write about my faith, even those who are writing in a manner which is friendly or neutral, something nuanced often gets lost in translation, which I am sure is true of my own understanding of other religions as well.  The words are correct, but the emphasis is off, the focus misunderstood.  It's possible that something like that is happening here.  Cheney's portrayal of the official biblical exegesis of the day may be accurate, but how often did people actually talk about this stuff at the time? And how did the Christians of the day treat epilepsy among their own families and flocks?  This is harder to know, and Cheney may or may not be accurately explaining the true underlying views of the day.  

The third and fourth elements of the Cheney theory seemed to this reader to be extremely tenuous, and ultimately unsupported. Had Madison read all of the various statements of various classical and Christian authors on epilepsy which Cheney has found and quoted?  Who knows?  Was he troubled by them?  Perhaps.  But if so, he doesn't seem to have left any record of such concerns in letters or other writings, at least not that Cheney quotes (and, presumably, if the record was there, she would have drawn on it for support).  Did these concerns lead to a distrust of dogma and a belief in religious freedom of thought?  Again, if so, that process (much less the connection between that process and Madison's epilepsy) does not seem to be documented anywhere, other than in Cheney's speculations. Cheney assures her readers that Madison departed from orthodox beliefs in 1773 and 1774 (pp. 39-40), but her evidence for this claim is not based on any of Madison's writings (indeed, she states, he would not have "publicly" made an "issue" of his altered thinking--pp. 41-42-- which begs the question, how does she know to what extent his thinking had altered?)  Instead, Madison's unorthodoxy is said to be demonstrated by his increasing hostility during this time period to the privileges afforded the official state church of Virginia, and its treatment of minority religious groups such as the baptists.  These were, however, political positions, regarding the authority of organs of State government, which say nothing of Madison's private religious or doctrinal views, let alone how those private views were affected by official church dogma regarding epilepsy.   

In the end Cheney's theory is interesting, but not all that convincing.  Indeed, it's easy to speculate that what's really going on here has more to do with Cheney's life and resultant interests than Madison's.  Given Cheney's age and the majority attitudes of her generation during her younger years, and given her family's prominence in the more conservative of America's two political parties, it is not hard to imagine Lynne Cheney having held, for most of her life, fairly orthodox and traditional views on homosexuality, which she likely later grappled with, and to some extent, or perhaps fully, rejected, upon one of her daughters announcing her homosexuality and seeking out a same sex marriage.  It is not hard to imagine that Cheney's intellectual struggles in that regard may have been extremely similar to those which she now ascribes to and imagines for Madison, as he allegedly grappled with  the subject of Christian doctrine concerning epilepsy.  Her theory may therefore be more about projection than history.  

But now I'm engaging in unsupported speculation.

Whatever the reason for Cheney's development of this theory, and however well or poorly supported her reasoning, my main concern with the theory is its unfortunate and distorting effect on how Cheney tells the story of Madison's contributions to the actual tenets of religious liberty.  By assuming that Madison was motivated by his own bitterness over Christian dogma, Cheney gives us an anti-religious Madison, crusading for his cause based on hostility to religious belief, instead of the true Madison, upset by religious persecution.  This telling of the story, in turn, prevents Cheney from ever fully analyzing and appreciating both sides of the coin of religious freedom which was minted through Madison's efforts. 

The Two Great Pillars of Madisonian Religious Liberty 

There are two important principles of religious liberty referenced throughout Madison's writings and ultimately enshrined in the First Amendment: 

(1) First, the establishment clause principle: that the government should not officially recognize or endorse any religious institution or church as the official religion of the state (i.e., should not create what 18th Century Americans referred to as an Establishment of Religion, and what we today would call an Official State Church), but must be neutral towards the competing claims of differing religious sects.  This vital principle of religious liberty is most frequently referenced today under the shorthand phrase: "separation of church and state."  

(A brief digression: some now argue this principle was provided to give us freedom from religion, rather than freedom from officially state endorsed religion, by requiring not only governmental neutrality among different religions, but between religion and irreligion.  One of the best and most concise historical arguments against this overzealous understanding of the establishment clause may be found by reading Justice Rehnquist's dissenting opinion in the school prayer case of Wallace v. Jaffree, the entire text of which decision, including Rehnquist's dissent, can be found here:  It must however be recognized that, while compelling, Rehnquist's argument is provided in a dissent, which tells us where we are today.) 

(2) Second, the free exercise principle, pursuant to which the freedom to exercise one's religious beliefs, which encompasses not merely the freedom to worship or to privately hold religious beliefs, but to exercise, or act, upon the same, without being unduly constrained by governmental fiat.  

In Cheney's telling, the first of these important principles is misconstrued, and the second is simply ignored, with Cheney's version of Madison coming across as a man far more concerned with freedom from religion than freedom for religious exercise, a distortion on both counts.  With respect to the establishment principle, it is true that Madison was deeply opposed to establishments of religion, fighting against the privileges enjoyed by Virginia's official church, and to ensure that no national church would be established.  But nothing he wrote for the cause of religious liberty suggests any hostility to private churches and religious institutions. With respect to the free exercise principle, Cheney's telling, necessarily, omits Madison's maintenance of the right to exercise one's religion free from constraint.  An uninformed reader of Cheney's tome would easily assume that Madison cared solely about freeing citizens from religious influence, and not a whit for protecting citizens' rights to freely exercise their faith.  

But the real Madison cared just as deeply for the right of a citizen to exercise his religious beliefs as he did for disestablishing official state churches, as proven in the record of Madison's actual words, set forth within his actual achievements.  For example, his preferred language in the Virginia Declaration of Rights retained the language concerning "free exercise" of faith.  The Memorial and Remonstrances against Religious Assessments included a passage describing the exercise of religion as not only a right but also a duty, and not only a duty, but a duty which took precedent over the duties one owed to the state, and which, until exercised, even prevented full acceptance into civil society:  "It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign."  This is hardly the statement of a latter-day atheist, concerned with protecting the citizenry from any religious influences, in favor of allegiance to the secular State.  The line about saving one's precedent allegiance to God is especially salient to certain modern controversies: Madison would likely have approved of the words "under God" in the pledge of allegiance.  (Whether he would have approved of the pledge at all is a different question, and would depend on whether you were talking to Madison in the 1780s or the 1790s, but that's a subject for part 2 of this post.)

Madison's letter to Jefferson describing the passage of the Virginia Statute of Religious Liberty included the observation that it was supported by "a general convention of the Presbyterian Church" which had "prayed expressly that the bill . . . might be passed into a law, as the best safeguard short of a Constitutional one, for their religious rights." Again, this enthusiastic observation would not have been made by a man whose actions were motivated by anti-religious sentiment.  Finally, there is Madison's first proposed draft of what became the First Amendment, ultimately diluted by his colleagues, but which would have afforded even clearer protections for the faithful against governmental encroachment than what the final draft afforded: "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed."  I can think of a number of recent State and Federal Court decisions upholding statutory infringements on religious exercise, which would have been decided differently had Madison's original language, protecting against such infringements "on any pretext" been both preserved and also followed.

Clearly, Madison was just as concerned with protecting religious freedom, including freedom of action, exercise and worship, as he was in preventing the establishment of a national church, and there is simply no evidence that his distaste for offically established religious institutions was based on any particular dislike of private religions or their doctrines.  It is truly tragic that Cheney's book, likely to be read for some time as the currently definitive single volume work on Madison's life, fails to get that part of the story right.  This tragedy is especially acute given the tenor of our times, which increasingly regards the establishment clause as a tool for the overzealous expulsion of religious sentiment from the public square, under the pretext of historically inaccurate and overly broad readings thereof, while at the same time ignoring the free exercise clause altogether.  These trends are shown by the recent need to shore up free exercise rights through legislation such as federal and state religious freedom restoration acts, designed to overcome court precedents which have allowed the free exercise clause to be ignored "on any pretext" available. This trend is also demonstrated by the recent backlash against those very RFRA laws, as in the liberal media's shallow and misleading excoriation of the Hobby Lobby decision applying the federal RFRA to Obamacare's abortifacient mandates, and the backlash against an Arizona bill which would have strengthened that State's RFRA statute.  Cheney's book could have helped to overcome these dangerous trends of our time, which bode ill for the religious liberty which Madison did so much to affirm and preserve.  Instead, Cheney's book may end up contributing to these modern misunderstandings and to the erosions of the Madisonian liberties which will inevitably follow.         

{For Part II of this Book Review, on Madison's shifting federalist and anti-federalist loyalties, see here:}

Tuesday, October 21, 2014

Elections 2014

So I've marked up my sample ballot and here's how I'm voting on those races for which I'm willing to publicly share my opinion and would rather not take any more phone calls.  I'm a conservative republican so most of these choices won't surprise anyone.  These are my own individual opinions and are not representative of any other group or entity with which I am affiliated:

Question 1: YES.  We need an intermediate appellate court in Nevada.
Question 2: YES.   I'm not generally pro-tax.  But Nevadans can only get the benefit of our State's indigenous mineral resources once, when they are pulled from the ground, often by foreign firms who ship them elsewhere to be sold.  It would be nice if it rained here and we had agricultural crops that could be harvested year after year, but there you go.  Mines shouldn't have any special protection against taxation.  Once those resources, the natural inheritance of all Nevadans, are harvested, Nevada's public can't ever benefit from them again.  
Question 3: NO.  NO NO NO NO NO.  They want to tax a business's revenues?  Regardless of whether it made any profits?   Who are these people?  Apparently they don't include any one who owns a business, is employed by a business, or buys any products or services from a business.  Give me a break.

Congressional Representative District 4.  Really not thrilled with my choices here.  How did I get gerrymandered into this district?  I guess I'm just indirectly voting for which party's member I want to hold the gavel as speaker of the house.

Governor: Sandoval  We are extremely lucky in our Governor at the moment.  An extremely intelligent and competent person who is also very good at winning elections.  Not a combination you see every day.
Lieutenant Governor: Hutchison I did some volunteer citizen lobbying on an educational issue in the last legislative session (which I'm still not quite sure how I ended up getting involved with) and I was extremely impressed at the Senate Republican Caucus Hutchison hosted for our group and the questions he asked and his grasp of the issues.  Should he end up becoming Governor because Sandoval leaves office to run against Harry Reid (which presumably won't happen if Flores defeats Hutchison) the State would be in excellent and competent hands.  

Attorney General: Adam Paul Laxalt.  I liked Governor Miller.  But his son seems to have fallen pretty far from the tree.  All those perqs of office he's enjoying aren't going to mean people looking for payback?  Criticizing his opponent's military service?  Really?  Laxalt spoke at a CLE I attended and wasn't shy about standing up for his values, which I share.  I like him.  One of the good guys.

State Assemby District 37: Wesley Duncan.  Our State's legislature did some crazy things two years ago, and came very close to doing some other crazy things.  It's important to put the senate and the assembly and all their committee chairs in the right hands this year or all of our wallets and all of our childrens' minds are at risk.

DA: Wolfson.  I doubt I would vote for Wolfson for any legislative office, given his liberal politics. But, having once argued a case before an administrative law board he was chairing, I found him to be a very fair and intelligent person, and the people I know who work for the DA's office and whose judgment I trust all seem to support him.

Sheriff: Burns.  We have a good police force in Las Vegas, and we don't seem to have ever been troubled by some of the pervasive corruption which has cropped up in other cities' police departments from time to time. So I trust and respect the judgment of our local officers and police department employees, and every single one of them who I talk to supports Burns.  He was also their overwhelming choice (not even by a close margin) when they voted on who they would endorse. That speaks volumes, since they presumably know the two candidates better than any one.  I also went to an open house for Burns which I was invited to by a police officer friend of mine, and I was favorably impressed with Burns' experience, especially in his successful efforts in reaching out to improve police relationships with locals in minority neighborhoods.

Judicial Races
Department 2: Scotti (on the advice of others I trust)
Department 3: Herndon
Department 20:  Tao
Department 22: Johnson (really one of our better Judges, who runs her courtroom the way it should be run and who rules based on facts and law not emotion or bias).
Department 24: Hardy
Department 30: Wiese
Department 32: Bare

There are a lot of judges who I've never appeared in front of because they have criminal or family law dockets or because I've just never happened to draw them. If I don't have an opinion I'll typically look for some reputable source of endorsements.  The RJ's endorsements can sometimes be just completely wrong, but they get it right more often than not.  The newspaper does a good job in conducting the attorney survey on which judges should be retained, and they tend to put a lot of stock in that survey in their endorsements, so it's as good a place to start as any:

Saturday, October 4, 2014

How to Destroy a Nation

If I were President of the United States, and I was determined to destroy this Nation, here's what I would do: 

1.  First, destroy the economy, and wage relentless war on jobs:  I would accomplish this in a few easy steps: (i)  I would pass laws (with respect to healthcare, for example, but any other major sector of the economy would do) that made it so onerous for employers to hire new employees, that everyone in America became a part time employee because no employer wanted to hire anyone on a full time basis anymore.  Soon, everyone would be working three part time jobs, one job to pay part of the bills, a second job to make up for the fact that your first job isn't full time, and, finally, a third job to pay for things like health insurance that would have been provided by your first job if it were a full time job, which it isn't, because those don't exist any more.  (ii) I would then import millions of unskilled workers from third-world countries who would, by virtue of the simplest and most inelectuble law of economics, supply and demand, drive entry level wages down so far that young Americans would be unable to find work and begin building work experience.  This would be especially harmful to minorities who have already lived in America for generations and who are most in need of entry level work in their youth.  Nevertheless, I would decry as racist anyone who disagreed with my policies, ignoring those who put me into office and are being most severely harmed by my policies.  (iii) Finally, if new technologies emerged which threatened to strengthen the economy, I would choke them off.  Fracking threatening to turn us into an exporter of oil and reduce our dependence on oil from parts of the world that hate our guts?  Block it, sue it, regulate it, kill it.  And if that doesn't work, prevent the construction of any new refineries which can turn the oil into its usable form.  Force people to use organic, grown fuels instead, from land that used to grow food to eat, so our society can choose between starving and driving.  Enormous oil discoveries in Canada can bring us cheap oil from a friendly nation instead of expensive oil from the other side of the world, controlled by people who want to wage Jihad against us?  No way! That's not going to help me destroy America.  No XL Pipleline for you, Mr. American hoping for a job or a cheap gallon of gas. Kill it, regulate it, sue it, block it.  

2.  Next, destroy the American family, and wage relentless war on fathers.  If I were the President of a nation which I so despised that I felt it was in need of fundamental transformation, and therefore wanted to destroy that country as it had heretofore existed in its untransformed state, I would ignore what numerous studies have shown about the importance of fathers in the home, and the statistical and scientific evidence of how much better both girls and boys do in adolescence and throughout their adult life if they are raised by their own married mother and father, who were married before the child was born and remain married until the child reaches adulthood.  Despite those scientific truths, I would promote a new definition of family which had the effect of proclaiming that children do not need both a mother and a father, and, would, indeed, make it socially unacceptable, bigoted and reprehensible, to advocate for the importance of fathers in the lives of children, so that young men can be taught there is no need to curb their sexual appetites within the confines of a committed marital relationship, or be responsible for their sperm donor babies, whether the sperm was donated at the clinic or in person.  This will have the inevitable effect of strengthening the hand of government, as the proliferation of single parent homes inexorably leads the government to play a greater role in the lives of the citizens formed in broken families, with government stepping in to act as disciplinarian (through the police and the courts) of sons not raised with a father (many times more likely to end up in juvenile court than sons with fathers), and as bread provider (through welfare services) to teenaged mothers (many times more likely to become teenaged mothers than are young women raised in a home with a father) who find they are unable to both raise their newborns and provide for them in the marketplace.  This strengthening of State power will inevitably lead to a destruction of the small government foundational doctrines upon which the Country was built.

3.  Then, attack the Constitution. Then I could strengthen the power of the State, and weaken the power of the citizen, in more direct ways, and at the same time remove the biggest hindrances (the Constitution, liberty) to my nation-destroying objectives.  I would for example install on the Supreme Court a Justice (Sotomayor) so radical that she believes the United States Constitution says exactly the opposite of what it says.  As demonstrated by her dissent in Schuette, Sotomayor not only believes it is perfectly appropriate for States to ignore the 14th Amendment's requirement of equal protection, such that they are allowed to ignore that Constitution's equal protection provisions and provide preferences which discriminate against certain racial and ethnic groups and prefer others in public university admissions and public contract bidding, but she also believes that States are REQUIRED to violate the 14th Amendment, even when they decide they don't want to do so, and are REQUIRED to discriminate against some of their citizens and prefer others and may not democratically decide to stop doing so by a voter-enacted amendment! Thus, in one fell swoop, Justice Sotomayor would (a) abolish democracy, (b) rewrite the 14th Amendment's equal protection clause to say exactly the opposite of what it says, and (c) create an America in which individuals are not treated as individuals, equal before the law and judged on their own merits, but as members of racial composite groups who are encouraged by law to compete with one another for racial spoils (a truly wonderful recipe for ethnic harmony and cohesion).  If I wanted to destroy this Country, Justice Sotomayor is exactly the type of person I would want to intall on the high court.

I would then encourage my party's senate and judicial committee members to wage an assault, unprecedented in all of U.S. history, on the First Amendment and the Bill of Rights, such as the assault currently being levied by the Democrats against the First Amendment in the form of S.J. Res 19, also known as the Udall Amendment.  This proposed constitutional amendment, to which all of the democrats on the Senate Judiciary Committee, to their everlasting shame, gave their assent, would give to congress the power to restrict any speech engaged in by any corporation or any individual which is politically motivated.  It would in other words repeal the First Amendment.  And no, that's not overheated rhetoric, that's my reading, as a lawyer, of the text of what this proposed Constitutional law expressly indicates it would do.  S.J. Res 19 explicitly and expressly indicates, in section 3 thereof, that there is only one of the five rights guaranteed by the First Amendment which is not to be repealed thereby, in that the Amendment is not to be construed "to grant Congress or the States the power to abridge the freedom of the press."   So the other four rights enjoyed by Americans for the past 200 plus years are all fair game: Freedom of speech, freedom of religion, freedom of assembly, freedom to petition the government for redress?  Bye bye.  This is such a blatantly bad idea that even the ACLU has argued against it.  But don't worry, Ted Cruz is against it too, so all the cool kids on Kos and the Huffington Post are ignoring the ACLU and making fun of him and fully supporting this monstrosity, because that's how sheep decide their politics, not on the basis of independent critical thought, but on the basis of lining up with their teammates to be "for" whatever the other side is "against."  Barack Obama said he wanted to transform America.  Well, destroying the First Amendment would certainly be the best place to start. It's a lot easier to transform a nation when you make it impossible to criticize the leaders.  Just ask the Russians, that's how they did it in Eastern Europe.  

4.  Finally, weaken the military. If I were a President who wanted to destroy this country, I would, against the advice of all of my military and intelligence advisors, remove troops from areas of the world where they had just won a war, so as to allow those areas of the world to fall prey to new aggressions at the hands of terrorist militias.  If even members of my own party, such as the highly reputable Leon Panetta, told me this was asinine and insane, I would kick them to the curb, pull out the troops, and go golfing.  And then I would ignore briefings on the rise of insurgents who were undermining what American money and blood had accomplished, until the rise of ISIS like fanaticals forced me to engage in a military response which could have been avoided had I just maintained the course to begin with.  (Look, I get that alot of Americans on both sides of the aisle were skeptical of the war in Iraq.  But just because of the many people who were disappointed that the surge worked, did that really mean we had to deliberately unwind a victory once obtained? Have we stayed too long in Germany and Japan and could they start building their own military now and let us save our money and go home and stop subsidizing their protection? Yes.  But that doesn't mean it would have been a good idea to leave two weeks after WWII was over and hand those countries back over to Nazis and Military Imperialist groups who were still eager for victory.  That would have been insane, or the work of someone who actually hated America and wanted to see her disgraced.)

It would be almost comforting to believe that Barack Obama was some sort of evil aberration forced upon America by conspiring outsiders, like in the Manchurian Candidate.  But the truth, I am afraid, is much more frightening.  Barack Obama actually believes his course would be better for America than the pro-American course engaged in by almost every single one of his predecessors (excluding Jimmy Carter).  And enough voters agreed, or were simply too simple-minded to know better, that they voted him into office.  How did we reach such a point in our nation's history?  Part of it is our education system, hijacked by left wing ideologues who have no desire to teach patriotic or uplifting history to our children, or help them understand the U.S. Constitution or the free market system.  Part of it is an ahistorical influx of more immigrants, over a shorter period of time, than have ever arrived here before, many of whom came to America because of its prosperity, but came from cultures which made it all but impossible for them to understand the principles and systems which account for that prosperity, such that they end up voting for the same kind of politicians whose policies led their home countries to be such miserable places (which immigrants are certainly not going to be taught more accurate principles by any of the dominant thinking in our current education systems or news or entertainment media).  And part of the problem is prosperity itself.  Who has time to read history, think critically, understand what has historically distinguished this country and allowed us to buck the tide of international opinion, avoiding monarchy in the 19th century and totalitarianism in the 20th, when there's so many fun things to watch on Netflix and so many fun vacations to go on, and good music to listen to on our iPods?  Whatever the sources of our national stupidity, the road it has put us on is not leading us to a happy end.