February 21, 2016
It’s election season, which means that everyone starts talking crazy about politics, law, the economy, foreign policy, etc., even though many clearly have not put much thought into these topics. On top of that, Justice Scalia recently passed away, which has only added to the rancor.
I have heard several references to “states’ rights” recently. In the first place, that’s not really a thing. It’s true that the 10th Amendment states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (Really, that should put a lot of legal controversies to bed, but the High Court seems to have determined that the 10th Amendment does not exist.) At bottom, the “rights” belong to the people first, not their government, and those powers not given to the federal government are ultimately reserved to the people, and those people can make decisions through their state government or otherwise.
Even assuming that certain governmental questions were returned to the level of state law (say, high school football game prayers; the legalization of all drugs; school testing, public expression of religion, etc.), however, would it necessarily be wise to determine all such issues on a state-wide level?
What about community rights? Granted, it’s up to the citizens of each state to preserve decision-making power to communities through their state constitutions, but consider in the abstract: why is it important for a federal or state government to make an across-the-board rule regarding whether a civic center can have a nativity scene, or whether some certain local public school will permit a pastor to pray via public address that none of the players in a high school football game would be injured? Why not just let each city/town, and each public school district, decide whether to express themselves in accordance with local values? If the school officials act out of line with the local community’s values, there is nothing preventing the constituents from replacing them at the next opportunity.
Let’s just assume for a moment that the smaller towns are more likely to have school prayers than big cities. Why is it in the interest of the elites in the big cities to determine what happens at small-town football games? Is it to vindicate a single irreligious dissenter at the school? I doubt that very much.
When I was in law school, I had a neomarxist professor who argued (surprisingly) that the courts were wrong to interfere with local governments’ expression of religious belief (even though this professor apparently had no religious practice of his own). He said that it alienated citizens from their own local government, making that local government foreign to them. He was right. The Supreme Court, the federal government, and state governments have all driven a wedge between citizens and their local governments. I submit that power (rather than wealth) should be redistributed to the citizenry. Let the people live as they want in their communal life. If you don’t like the way your community or the next community expresses themselves, perhaps you can try to persuade them through reason rather than running to a higher authority to get your way.
July 21, 2015
So, the U.S. Supreme Court has declared gay marriage a constitutional right (something that would disturb the actual writers of the constitution, but I digress). Is there anything left to distinguish “marriage” and “sexual relationship with tax benefits and implicit (though entirely fictional) social approval”?
I do wonder what would happen if states revisited the concept of “covenant marriage“:
Once married, a husband and wife are expected to commit to a lifetime partnership. However,the law recognizes that some couples will want to separate or divorce. The covenant marriage provisions require a spouse to first obtain counseling and then prove one or more grounds for separation or divorce as listed in the statute. This is the key difference between the two types of marriage: in essence, a spouse has to prove fault by the other spouse. The grounds for legal separation are: Adultery by the other spouse; commission of a felony by the other spouse and a sentence of imprisonment at hard labor, or death; Abandonment by the other spouse for one year; physical or Sexual Abuse of the spouse or of a child of either spouse; the spouses have lived separate and apart for two years; or habitual intemperance (for example, alcohol or drug abuse), cruel treatment, or severe ill treatment by the other spouse. The reasons for divorce exclude this last ground but include the other four.
Keep in mind that absent a legal divorce, remarriage is impossible.
Imagine if a state abandoned its current marriage scheme and replaced it entirely with near-permanent covenant marriages. Imagine if it even treated foreign marriages (entered into in other states) with the same seriousness, meaning that divorces would not be permitted but for one of the causes above. Such a law would have a legitimate interest: social stability and the provision for children. Since gay people are permitted to adopt, the state has a legitimate interest in maintaining and enforcing the stability of any marriage relationship.
Granted, this would raise interesting questions of federalism. But let’s say some maverick state like Texas decided to completely abolish its current marriage scheme, replace it with covenant marriage, outlaw divorce except for certain causes (as described above), and yet make this available to all persons or potential unions (whether gay, straight, or even polyamorous). What would happen? Clearly, many would simply drive across the border to some other state to get a quick divorce. But what if other nearby states then followed suit (just as they did by enacting legislation defining marriage as between one man and one woman)? Spouses desiring quicker, no-fault divorces may have to travel to Nevada or California to get those divorces. But even then, imagine if Texas went a step further and disallowed remarriages in the absence of a showing of fault justifying the divorce of all prior marriages (this would raise constitutional “full faith and credit” objections, but set that aside for the sake of argument). Then some divorcees would have to travel to other states to get second marriage licenses. This could all be gender/orientation-neutral, of course, but a big hassle to those who desire “flexibility” to end their marriage.
If a state went this route, I wonder how many people (gay or straight) would decide to get married at all in such a state. Marriage rates would probably decline (even dramatically) in such states, except among religious communities and the most serious of secular relationships. But, wouldn’t those unions be stronger? And if so, would more potential spouses (particularly women) be inclined to demand covenant marriage from their partners to avail themselves of this stability for themselves and their children?
At the very least, this would be a way for a state to voice some form of dissent to the recent Supreme Court decision in Obergefell v. Hodges. The state would essentially be saying, “ok, Supreme Court, you’ve had your fun, but now we will create a form of marriage even stronger than before, so strong that it would be nearly disadvantageous to go through with it.” Overall, would this be a good thing or a bad thing?
Speaking for myself, a few weeks ago I would have told you that I’d consent to gay marriage if we could take away no-fault divorce (essentially making all marriages covenant marriages). I believe marriages across the nation would be far more strengthened by a sense of permanence than by a sense of “at least we’re a man and a woman.”
June 28, 2015
Ran across this little nugget doing legal research on a case. If only it were completely true:
The argument also assumes, quite wrongly, that lawyers make all the difference in outcomes, as if the merits of a case or the interests of justice didn’t count for much. (In reality it should be the other way around to the degree that it is true at all.) All judges regularly see cases where the better lawyer rightfully lost because he or she should have lost, regardless of skill. (And that is by whatever criteria you choose to measure relative legal skill, e.g., perceptivity, knowledge, organization, or ever plain diligence.) In any sane system of justice, the merits, rather than the skill of lawyers, should control the ultimate disposition.
Chen v. County of Orange, 96 Cal. App. 4th 926, 948 (2002).
It is absolutely true that the merits should control the ultimate disposition, but in my career I’ve seen a lot of improper results due to lawyers’ skills (or lack thereof).
October 10, 2014
I ran across this fantastic article regarding classical liberalism (the notion that people should be “free”, embraced both by progressive liberals and conservatives in America today). The article provides a thoughtful analysis, including the following:
“An idea of liberty is an essential part of the answer to that crucial unasked question [whether humans are prepared to live free]. But it is not the libertarian freedom generally voiced by today’s left and right. Surely liberation from coercion alone does not prepare us for the practice of liberal freedom. To liberate us purely to pursue our wants and wishes is to liberate our appetites and passions. But a person in the grip of appetite or passion can’t be our model of the free human being. Such a person is not someone we would trust with the exercise of great political and economic freedom.
The liberty we can truly recognize as liberty is achieved by the emancipation of the individual not just from coercion by others but also from the tyranny of his unrestrained desire.
This liberty arises when we want to do more or less what we ought to do, so that the moral law, the civil law, and our own will are largely in alignment, and choice and obligation point in the same direction. To be capable of freedom, and capable of being liberal citizens, we need to be capable of that challenging combination. And to become capable of it, we need more than the liberation of the individual from coercion. We need a certain sort of moral formation.”
The author’s suggestion is not that the government begin preparation of souls for freedom; rather, it is that the citizens should on their own begin recognizing the soul-forming functions of family, work, and religious organizations, and “sustain the space for them, and put them within the reach of as many of our fellow citizens as possible.” Without attending to our souls through family, work, and spiritual relationships, democracy gets ugly. What is the use of an election when the electorate is a mass of radically self-interested individuals?
August 25, 2014
Creator of all things, true source of light and wisdom,
origin of all being,
graciously let a ray of your light penetrate
the darkness of my understanding.
Take from me the double darkness
in which I have been born,
an obscurity of sin and ignorance.
Give me a keen understanding,
a retentive memory, and
the ability to grasp things correctly and fundamentally.
Grant me the talent of being exact
in my explanations and the ability to express myself
with thoroughness and charm.
Point out the beginning,
direct the progress,
and help in the completion.
I ask this through Christ our Lord.
December 16, 2013
“If someone says, ‘I love God,’ and hates his brother, he is a liar; for the one who does not love his brother whom he has seen, cannot love God whom he has not seen.” -1 John 4:20
It is interesting that love is connected with sight in this Biblical passage. Elsewhere in the New Testament, the Bible teaches that a human is much more than a physical, visible entity (2 Corinthians 5:4 refers to the body as a “tent”, and 1 Corinthians 6:19 refers to the body of a Christian as a “temple of the holy spirit.”). Scripture also states that God created man in His “image,” specifically in Genesis 1:26-27: “God said, ‘Let Us make man in Our image’. . . [and] God created man in His own image.” However, it is highly debatable (if not entirely unlikely) that the reference to “God’s image” has much to do with the physical appearance of human beings.
The thesis of this post is that the removal of the “sight” of a second party may actually hinder one’s propensity to love someone, and that that has consequences in our political and social lives. This may seem obvious, but I am going to take it a step further than the obvious.
We know intuitively that a blind person must be able to love a person, so physical sight is not necessary to love someone. But it is surely easier to avoid loving another person if one does not have to see that person. If your community keeps homeless people relegated to a rough corner of town that you never visit, it is easier not to think of them or help them. But if you have to face homeless people every day, your conscience is more likely to be bothered and perhaps spur you to do something to love the homeless, even if only donating to a local charity or giving a few bucks to a homeless person who appears to be in need. On the other hand, one might choose to become callous toward the homeless, particularly with the aid of stereotypes and rationalizations such as “homeless people are lazy.” Accordingly, it is said that if you cannot even love those who you see (and sight should make it easier to love someone), you cannot love God, whom you cannot see (because it is presumably harder to love God, who you cannot see).
But what if you owned a small private business in a neighborhood with homeless people? I would imagine it would be even more difficult to resist a sense of sympathy to (and even responsibility for) the needs of those in the community.
Setting aside private companies, the “owners” of a publicly-traded corporation could be shareholders from all across the world. If the corporation runs nation-wide chain retail stores or restaurants, the shareholder is far removed from the faces on the ground. A corporation cannot truly love a person. The corporation exists to provide profit to its shareholders. Sure, a corporation can give money to a charitable cause, but it generally does so because it helps the corporation’s bottom line in the long run by building good will with consumers. The private small business owner is in a much better position to help those with needs in the community because the private small business owner can actually “see” the faces of the need in a real way.
Furthermore, the private small business owner sees his or her employees and is more likely to treat them in a loving manner. Grace and mercy cost a business owner no more than he or she is willing to voluntarily contribute. The shareholders of a private corporation cannot see the employees and thus will not care about them. The corporate hierarchy will provide little grace or mercy at the sacrifice of the company’s (and the shareholders’) bottom line. Employees within a corporation can still exercise some grace and mercy, but with a much greater risk. If an employee in a corporation shows mercy to a subordinate and it does not work out, the managerial employee loses his job, which is more than the comparatively negligible amount of profit lost by the corporation.
Now enter politicians.
Politicians, surviving largely on the backs of private corporations (this goes for Democrats as well as Republicans), answer these bottom-line focused entities rather than the rank and file individuals. Moreover, federal government politicians are far removed from their constituents (often by thousands of miles). If politicians need not look many of their constituents in the face for most of the year, it will be easier to forget to love them or serve their interests, just as people forget about the homeless in the bad areas of town that they never visit.
Is the link between “sight” and “love” a good reason to be suspicious of corporations and support local businesses? Is it a good reason to prefer local to state or national government?
September 11, 2013
Diogenes of Synope was a funny Greek philosopher who used to wander the streets with a lantern in the daylight “in search of an honest man.” He was something of a hippie, as he spurned riches, reputation, and even hygiene. He also questioned patriotism and preferred to call himself a citizen of the world.
As I grow older, I find myself thinking more and more like Diogenes, at least insofar as I believe I could carry on a similar search for an honest man and never find one. Honesty is more than telling the truth. Honesty is the willingness to call a spade a spade, even when the full truth makes one look weak.
Lawyers might have a problem with this because they are paid to put the client’s “best case” before the court. They are paid to keep some bad information secret through the attorney-client privilege, to ignore inconvenient facts, and to make the other side’s “best case” look preposterous, even if it is the more likely truth. No doubt Diogenes would have a field day with lawyers.
Of course, lawyers do not necessarily handle the truth in such ways when clients, judges, and juries are not around. We lawyers have also usually been exposed at one point or another to the limitations of our knowledge. As young lawyers researching a legal question, we learn that even though we might discover a law on the books that apparently resolves our legal question, there might be another law out there stating that the just-discovered statute does not apply in certain situations. Since it is practically impossible to read every law out there to prove a negative (especially on the client’s dime), the lawyer must act with some degree of faith in his/her mentors, practice guide books, and even gut instinct. That degree of uncertainty should keep the lawyer’s attitude in check.
When dealing with coworkers and clients, however, lawyers must appear confident in spite of the fact that they might be wrong (even embarrassingly so). I can’t help but wonder if this bravado comes from society or if lawyers helped to contribute this approach to society, but it seems that virtually everyone in public life wants to focus on his or her argument, ignore or suppress all information counter to that argument, discredit all those who might question that argument, and reframe any opponent’s argument in a weaker way so that it is easier to overcome. This is probably not the best way for a curious listener to arrive at the truth—listening to multiple myopic, self-serving viewpoints and trying to sort between them.
The thesis/antithesis model of reasoning, where one honestly and readily admits the most powerful arguments opposing one’s argument during discourse, is far superior for everyone’s sake if one is to hope that the truth triumphs even to one’s own detriment. Sadly, we are usually not honest enough to hope that the truth prevails even though it crushes us. We could join Diogenes’ search, knowing full well that no one is brave enough or righteous enough to always admit the truth and expose his own frailty.
September 10, 2013
I would really enjoy discussing the definition of legal “rights” with these people. The Boulder Rights of Nature organization in Boulder, Colorado, seeks to establish rights belonging to nature itself as a means to protecting the environment. As a legal matter, it’s difficult to see how these “rights” could be enforced, given the lack of legal standing (one generally cannot sue to enforce someone else’s rights unless one has a special relationship with the other person, and since the rights here would be asserted against property owners to prevent them from “harming” the natural beings on their own property, it is difficult to conceive who besides the property owner could have that “special relationship”).
But leaving legal standing aside, this could get interesting if it gains any traction with the media. A few years ago, I wrote on this blog that the intentional killing of any human organism (including the pre-born) should be illegal, and a reader objected that I was imposing my religious beliefs on other people. He urged that one cannot grant “personhood” to an unborn human because other people do not believe that unborn humans are “persons.” I disagreed, of course, and argued that the granting of rights and “personhood” to a human being comports with justice and also is not religious. The Boulder Rights of Nature organization helps prove my point. That organization is not “religious” as far as I can tell. If a law granting “rights” to nature (the trees and flowers) is irreligious, a law granting rights to preborn humans is not religious, either.
In that vein, I especially love this quote from BRON’s proposed draft Sustainable Rights of Nature Ordinance:
While not eliminating property ownership, these new laws seek to eliminate the authority of a property owner to destroy, or cause substantial harm to, natural communities and ecosystems that exist and depend upon that property.
Could we not draft a similar law stating, “while not eliminating a woman’s dominion over her own body, this new law seeks to eliminate the authority of a person to destroy, or cause substantial harm to, natural human organisms that exist and depend upon her body”? Are preborn humans less deserving of protection than trees? If the Sustainable Rights of Nature Ordinance is not inherently unjust, could a law preventing the intentional killing of innocent preborn humans ever be unjust?
August 30, 2013
So, why do you care about the behavior of others? Where you are not concerned, why care about others having abortions, gay marriage, prayers in public school (or at high school football games in Texas), therapy for minors with unwanted same sex attraction, racial discrimination that does not harm you, laws in other states or countries, or anything else that would not affect your life specifically and personally?
Should any of us care about the plight of another so much that we would interfere with that person’s life (or the lives of those around them) through legal compulsion? The answer seems to be “yes,” if we love justice, but who is this “we”? Should “we” interfere with the behavior of others through our town’s local law, our state law, or our federal law, or leave law out of it and resort to other methods? (One could “interfere” with the behavior of others without using law, via boycott or shunning.) It seems more intuitively acceptable for us to interfere with or regulate the behavior in our own community based on our moral inclinations about the good of our community. One’s interest in the behavior of the people in far away places seems more attenuated.
To push this point even further, should “we” as a society (small or large scale) interfere with other societies? Can the people of Los Angeles decide they’ve had enough of the ridiculous laws in San Francisco and try to do something about it? Yes, the people of Los Angeles lack jurisdiction to do anything about what happens in San Francisco, but the United States has no more jurisdiction over anything in the Middle East, yet there “we” are, interfering…
It strikes me that this is absolutely not a conservative or liberal question. Conservatives will interfere with your ability to smoke pot. Liberals will interfere with your ability to smoke a cigarette in a public restaurant. Each will claim the high ground of “freedom” on one issue while claiming the high ground of “morality” on the other. “Freedom” is just another buzz word like “equality” and “democracy” that people only invoke for convenience and sound bites, not because they are actually committed to those ideals. It is the same with foreign policy. Conservatives and liberals will walk the line between “respecting the sovereignty of other nations” and “taking a stand for the cause of justice” depending on the values or interests at stake in a policy decision.
So, do you care about the behavior of other people so much that you want to interfere societally? Do you want to interfere with other societies (and do you want your own government to interfere in other societies for you)? No doubt, there are numerous moral tragedies happening around the world right now and we are doing nothing about them. Yet when discussing instances of interference in the past (like fighting the Nazis in WWII), people point to how evil the situation/government was to justify the U.S.’s behavior. Wouldn’t that be like the people of Los Angeles pointing to how bad the laws of San Francisco are as justification for interference? That doesn’t hold water unless we are going to distinguish between types of “bad” laws (whether a difference in kind or degree). Certainly some silly laws that drive away small businesses in San Francisco would not justify usurping the authority of the San Francisco local government through force.
What kind of laws (if any) should invite the scrutiny and interference from other governments that have no jurisdiction? What kind of behavior from other people in your community or neighboring communities invites your own scrutiny and legal interference? Is there a difference between attempting to interfere (through force of law in matters in which you have no direct interest) with the behavior of your neighbor, or someone in a neighboring town, or someone in another state, or someone in another country?
If government A can usurp government B’s authority through force based on the bad laws of government B, can government B do the same to government A? If government A is too strong for that, doesn’t that make government A a self-appointed “benevolent tyrant”? What happens when government A turns bad and ignores its own unjust laws? Would the citizens of the country of government A look kindly on the interference from the weaker government B?
America (and particularly the federal government in America) is government A.
August 13, 2013
Elysium is a thinly-veiled promotion of a rather liberal political agenda, especially with respect to immigration and healthcare reform. One can gather that quickly by watching the movie or reading the reviews of moviegoers on yahoo. But I would have enjoyed the movie anyway if it had been more complete.
Sorry to spoil the rather unoriginal and predictable plot, but here it is in all its simplicity: 150 years into the future, our planet Earth is ruined by overpopulation and poverty such that the entire earth looks like a third world country. Everyone in LA speaks Spanish and/or is Hispanic. The elite of the world (wealthy, intelligent, educated, etc.), build a huge space station called “Elysium” to, and I quote, “preserve their way of life” (though the film does little if anything to show what that “way of life” looks like; we are supposed to assume it’s ideal with whatever that might mean to us–kind of like Heaven, I suppose). Elysium has free (and perfect) healthcare in the form of body-scanning machines that can heal a person from essentially every malady short of complete death (it can even do reconstructive facial surgery and restore someone who had his face blown off by an explosive, looking good as new after the healthcare scan). To get the bodyscan, a person needs both to be on Elysium and be a citizen of Elysium. They refer to all non-citizens as “illegals,” and Jodie Foster’s character heads up a group called “Homeland Security” (yes, the metaphor is that obvious) to protect Elysium from intruders, but the dark-skinned “president” essentially undermines the Homeland Security efforts, leading Foster’s evil character to stage a coup to protect Elysium. Meanwhile, Matt Damon’s character lives on earth, gets sick, has 5 days to live, and needs to get to Elysium to get that body scan to heal himself as well as his friend’s daughter, who has leukemia.
There was potential for this movie but they didn’t explore the pertinent questions arising out of such a plotline nearly enough.
For instance, were the people on Elysium happy in their isolated (and supposedly trouble-free) world? What was life like for them? Did they at least have “first world problems“, or was this a symbolic utopia of sorts?
Was it immoral for the citizens of Elysium to build Elysium at the outset and/or to take the best and brightest from the world and stick them up in Elysium? (If so, it’s likewise immoral for America to allow the best and brightest of other nations to emmigrate to the U.S., contributing to brain-drain in third world countries, which could actually mean permitting unlimited immigration would sometimes be immoral, not benevolent).
Is the existence of Elysium itself (or the imbalance of wealth in any closed system) an instance of injustice? If it didn’t exist at all, apparently no one would have healthcare, unless the best and brightest of Elysium were somehow forced into providing healthcare to everyone everywhere (and how would we force them to do so without paying them–making them elite, the kind of elitists that we from the outset held were an example of injustice–or forcing slavery, which we also find disgusting?).
To put that last question another way, more broadly: is it unjust that Oprah owns eight homes while I only rent one (and some people are entirely homless, or living with multiple families in the same dwelling)? Is an imbalance of wealth itself an inherent injustice? Is it immoral anytime any of us earns more than the median world salary (a small number that will shock your conscience) and fails to donate the entire surplus to those below that line to even things up? Isn’t this movie saying that the general imbalance of resources and happiness between Earth and Elysium is in itself immoral (notwithstanding that everybody who helped make that movie likely lives an extravagant lifestyle, at least from a world-wide perspective)? If the movie is saying that, does it not also suggest by implication that we are a nation of hypocrites and psychopaths, but not much else?
Were there scarce health-care resources on Elysium, such that the masses on Earth would consume up the health-care “machines”, creating an underclass of the unhealthy anyway? If there was no such scarcity, why did the people on Elysium keep those machines from being delivered to earth rather than sending reproductions (or even just one or two) of these impersonal machines (which apparently did not even need maintenance or a personal expert to operate, or at least the movie did not indicate such a need)? Were the citizens of Elysium presumed to be psychopaths with nothing but contempt for all outsiders (and in fact a positive desire to harm or starve outsiders), rather than protectors of their limited goods? (Even in wealthy America, we participate in and fund global relief efforts, however effective or ineffective that may be.) If the citizens of Elysium were that evil, shouldn’t we just blow the whole edifice up rather than allow these Stalin-like creatures to continue profiting from building such machines? Or would we disapprove of forcing them to labor on our behalf here on “Earth” (the third world country)?
Additionally, as a somewhat irrelevant side note, imagine how long the wait lines would be on an overpopulated earth seeking to exploit the machines that were built only to serve an elite few rather than billions. Can the machines break from overuse? Will people harm each other to cut in line? Will the gate-keepers of the line allow their friends and family a place of privilege so that they get the best machines and spend the smallest amount of time in line? These machines are unlikely to turn the third world Earth cesspool into a utopia just through healthcare. At least, the problems of poverty and crime would still persist.
There are just way too many unanswered questions. This movie might have been an ambitious mini-series on TV, and I would love to have seen these issues explored (even if with a liberal or other agenda), but the movie fails to deliver in an intellectually-satisfying way. That’s unfortunate.
Update: It just occurred to me, this movie could be seen (ironically) as a pro-life metaphorical argument. The citizens of “earth” could be unborn humans, whereas the elites on Elysium could be people who have been born. The people on Elysium (metaphors for mothers) are entirely in control of whether the earthlings (metaphors for unborn babies) can have healthcare and live. However, the earthlings pose a threat to the comfortable way of living for those on Elysium, and the citizens of Elysium want to “preserve their way of life.” When someone from earth finally “gets through” against the will of those on Elysium (say, for example, a child of a failed abortion), that person fights with all his/her might to end the denial of life for the earthlings. In this interpretation, the movie metaphor wouldn’t even go far enough, because mothers and their unborn babies have a far more intimate (and morally obligatory) relationship than that between the citizens of Elysium and Earth.