What Makes A Good Law, What Makes A Bad Law?

Submitted by Gene Howington, Guest Blogger

In 1780, John Adams succinctly defined the principle of the Rule of Law in the Massachusetts Constitution by seeking to establish “a government of laws and not of men”. This reflects the democratic principles enshrined in the Constitution’s preamble: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” The very foundation of our legal system says that the law should work for us all, not just a select few.

This raises the question of what is a good law that serves the majority of society and what is a bad law that doesn’t serve the majority of society?

This idea is further bolstered by the Equal Protection Clause of the 14th Amendment:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The latter addition of the 14th Amendment as well as the Preamble of the Constitution both reflect the spirit in which this country was founded as set forth in the Declaration of Independence: “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

Clearly, the pursuit of the Rule of Law under the Constitution as informed by the Declaration is a pursuit of the Utilitarian concept of the right course of action is the one that maximizes the overall good consequences of an action; what is in the best interest of greatest numbers of We the People is in the best interests of the country.

Utilitarianism is a quantitative and reductionist philosophical form. Utilitarianism, however, is not a unified philosophical view. It comes in different flavors with the two primary flavors being Rule Utilitarianism and Act Utilitarianism. Strong Rule Utilitarianism is an absolutist philosophical view and rules may never be broken. Like any absolutist view does not take into account that reality occasionally presents situations where breaking a rule results in the greater good. For example, the strong reductionist rule that murder is bad is countered by the exceptional example of murder is not bad if performed in self-defense or the defense of others. This result of practical application is reflected in what John Stuart Mill called Weak Rule Utilitarianism. It becomes apparent that since not all rules are absolutely enforceable when seeking the common good and exceptional circumstances require flexibility in the law, that the Utilitarian pursuit of the Rule of Law must be in Mill’s Weak Rule formulation of Utilitarianism. But is considering the greater good and circumstantial reasons for breaking or modifying rules the best way to judge whether a law is good or bad?

If one considers Kant’s Categorical Imperative – “Act only according to that maxim whereby you can, at the same time, will that it should become a universal law.” – then any law not universally applicable should not be a maxim worthy of being recognized as universal. This is contrary to Utilitarianism in general as well as Weak Rule Utilitarianism specifically, but while Kant’s view takes subjectivity into account when dealing with circumstances it does not take into account that there can be objective differences in circumstances as well. It is part of the judiciaries role as a trier of fact to consider not only subjective differences but objective differences in circumstances in formulating the most equitable and just solution to a case at bar. In seeking to be universally applicable in defining maxims, Kant is an absolutist as surely as Strong Rule Utilitarians are absolutists. As a consequence of reality not being neatly binary in nature and thus not often compatible to absolutists approaches to formulating laws for practical application, what can be done to keep Weak Rule Utilitarianism from degenerating into Act Utilitarianism where actors will seek the greatest personal pleasure when presented with a choice rather than the greater good? Utilitarianism conflicting with the Categorical Imperative? Is there a unitary philosophical approach to evaluating whether a law is good or bad?

The answer seems to be no. If there is no single view, absolutist or otherwise, that leads to a practical system for evaluating whether a law is good or bad, then there is only one option for building a framework for evaluation. That option is synthesis.

Consider that absolutist systems as they are not applicable in reality should be confined to being considered theoretical boundaries rather than practical boundaries. This does not negate the value of considering systems like Strong Rule Utilitarianism or Kant’s Categorical Imperative, but rather puts them in the place of aspirational goals rather than practically attainable goals in every circumstance. Given that Mill’s Weak Rule Utilitarianism can degrade into Act Utilitarianism and that degeneration can be compounded by the number of exceptions there are to a rule, are there ways to minimize the defects of using only Weak Rule Utilitarianism to determine the societal value of a law? What supplements can be made to that framework?

I submit that one such supplement is found in the form of Negative Utilitarianism. Negative Utilitarianism is exactly what it sounds like; the inverse function of Utilitarianism. Whereas Utilitarianism is the basic proposition that the right course of action is the one that maximizes the overall good consequences of an action, Negative Utilitarianism is the basic proposition that requires us to promote the least amount of evil or harm, or to prevent the greatest amount of suffering for the greatest number. If one takes both into account in evaluation of the social value of a law (a synthetic approach), the test becomes a balancing act. On one side of the scale is the societal value of overall good consequences, on the other side is the societal value of preventing overall harm. This proposition suggests the following framework for evaluation of whether a law is good or bad.

  • How many people benefit from the good consequences of a law?
  • How many people benefit from the reduction of harm as consequences of a law?
  • Does the benefits from promoting good consequences outweigh the costs of reduction of harm?
  • Does the benefits from reducing harm outweigh the costs to the greater good in taking no action?
  • Are the net consequences of a law perfectly knowable from either perspective or does the possibility of unforeseeable consequences exist? Can the unforeseeable risks be minimized either by construction of the law(s) to allow for contingencies or by regulating other risks or contributing factors?
  • Do solutions from either perspective negatively impact human and/or civil rights? Do those negative impacts outweigh the positive effects to the greater human and/or civil rights of all?

This is but one way to evaluate whether a law is good or bad for society. What are other methods? Are there ways to improve this method? What do you think?

2,113 thoughts on “What Makes A Good Law, What Makes A Bad Law?

  1. Gene, congrats on an excellent first front page post. There is a lot of information there and will take a while to fully digest.

    Seems to me that one of the criteria for a good law is to try an anticipate all the permutations of the Law of Unintended Consequences. Many laws (and projects) that sounded good on the front side turned out to be disastrous. I recall one of the so-called “defense of marriage” laws passed by a state legislature was worded in such a way as to outlaw marriage. Of any kind.

  2. Thanks, OS. I wondered if it was a bit too heavy a topic for my first post, but since so many of the threads here seem to ultimately revolve around not just Constitutionality but a question of good law versus bad law it was a topic worth throwing out for discussion.

  3. A Good law is one that can be enforced evenly….with the Judiciary as the final interpretater of the laws intent evenly handed……

    Good post but heavy…..

  4. A good law:

    addresses a need;
    is readily understood in purpose and in operation;
    conforms to our principles;
    enjoys overwhelming support;
    affects and protects everyone;
    and reflects what is best about us — not what is worst

  5. Umm… delicious post.

    It seems to be that trying to create a universal template for law construction is majorly hampered by the fact that society’s measure of what is “good” or “harmful” is itself is a moving target. Therefore, the answer to your question:

    ” Can the unforeseeable risks be minimized either by construction of the law(s) to allow for contingencies or by regulating other risks or contributing factors?”

    …would at first glance be “no”, since how can we be in a position to minimize the unpredictable or that which is beyond our present ken? The solution I see to that dilemma is the one applied by those who view the constitution as a living document, to be interpreted relative to the circumstances of the societal moving target.

    Isn’t that the point of a judiciary – to interpret – to add context and flexibility?

  6. Your post directly addresses what I would consider problems of the SCOTUS. In the Roberts confirmation hearings we repeatedly heard “stare decisis” —yet, the Roberts wing has consistently overturned established law. This may be material for another post, Gene.
    Revisiting the philosophical and historical underpinnings of our current system of laws is refreshing. I can’t help asking, How did we get to THIS pretty pass?! Citizens United? really.

  7. Gene,

    That was a breathtaking first post. You provided a framework for considering the utility of a law, that perhaps I have superficially considered, but never viewed structurally from a legal/philosophical viewpoint. Would that our legislator’s past and present used this type of structure to consider proposed laws/regulation, rather than aiming to score political points with their constituents.

    The six bullet points of your proposition seem as fine a framework to me for considering new legislation. I might add though something like:

    “What evidence is available that the reduction of harm claimed is in fact viable?”

    “What evidence is available that the good consequences claimed are viable?”

    Now your fifth bullet down might subsume the above, but that is not clear to me. What makes this topic so pertinent at this time is the move to enact “Cayley’s Law” in Florida based on the general anger at the trial’s outcome.
    Usually such laws, like the previously enacted Megan’s Law in California and Kendra’s Law in NY, are riddled with flaws and not very effective in redressing the problems they address.

    We would hope that Legislators in considering legislation would act with the intelligent questioning you outline. Sadly, as you well know, this is not the case.

  8. Good post, Gene ,but a bit too heavy for me on a hot Texas morning. I can tell much thought went into it.

  9. Gene says: “Clearly, the pursuit of the Rule of Law under the Constitution as informed by the Declaration is a pursuit of the Utilitarian concept of the right course of action is the one that maximizes the overall good consequences of an action; what is in the best interest of greatest numbers of We the People is in the best interests of the country.”

    I do not believe negative utilitarianism corrects the defect. Consider, I am an atheist, and a non-supernaturalist to boot (some people are only technically atheists; they do not believe in God or a creator but do believe in something like Karmic Justice or reincarnation or souls or witchcraft or magics — I do not believe supernatural phenomena exist).

    My particular breed of religious view is somewhere around 2% of the population. Say 2/3 of the population, definitely religious, is screaming that my views corrupt their children, promote promiscuity, disease, malaise and crime by denying the existence of supernatural punishment, threatens the future of humanity and bands together to put my kind to death. So:

    1) How many people benefit from the good consequences of a law?
    I compute 2/3 of the population.

    2) How many people benefit from the reduction of harm as consequences of a law?
    2/3 of the people fervently believe that they do.

    3) Does the benefits from promoting good consequences outweigh the costs of reduction of harm?
    2/3 of the people believe it is saving their children from burning forever in Hell, which is far more people than the 2% that must die and were going to burn in Hell anyway.

    4) Does the benefits from reducing harm outweigh the costs to the greater good in taking no action?
    2/3 of the people believe it does.

    5) Are the net consequences of a law perfectly knowable from either perspective or does the possibility of unforeseeable consequences exist? Can the unforeseeable risks be minimized either by construction of the law(s) to allow for contingencies or by regulating other risks or contributing factors?

    The consequences are not perfectly knowable and unforeseeable consequences may exist, other choices of law may exist, but 2/3 of people think a horrific crime of fraud is being perpetrated on their children and leading them to damnation and they want it stopped.

    6) Do solutions from either perspective negatively impact human and/or civil rights? Do those negative impacts outweigh the positive effects to the greater human and/or civil rights of all?

    Absolutely, they intend to kill 2% of the population. But how do you define civil rights? Is putting a serial killer to death a violation of his civil rights? If freedom of (or from) religion is a civil right, then that begs a recursive question:

    What makes a good civil right?

  10. If I had a dime for every time I posted this quote…

    “Everyone must admit that if a law is to be morally valid as a ground of obligation, then it must carry with it absolute necessity. [One] must concede that the ground of obligation here must therefore be sought not in the nature of man, nor in the circumstances of the world in which man is placed, but must be sought a priori solely in the concepts of pure reason; he must grant that every other precept which is founded on principles of mere experience-even a precept that may in certain respects be universal-in so far as it rests in the least on empirical grounds-perhaps only in its motive–can indeed be called a practical rule, but never a moral law.” — Immanuel Kant

  11. Good work Gene.

    Taking, as you did, direction from the Constitution to derive the notion of ‘States’, or experiments as Justice Brandeis nicknamed them, we can see that circumstances are such that we must allow others to find what is good law and what is bad law on their own, in their own lab, their own State.

    We have 50 such experiments now.

    We all all to adhere to the federal Constitution, yet we as sovereign States can form sub-Constitutions which allow specific experiments to take place to synthesize law formed by the facts of our State.

    States rights, state law.

    How much mythology is built into this constitutional system is, I think, revealed by the “Full Faith and Credit Clause” where we respect the experiments of the other State, or States, even in the face of a law in our own State that is different or perhaps even opposite.

    That clause has never gained full traction, full implementation, because there are active absolutists always at work.

    The absolutists among us, and there are and always have been plenty of them, do not grasp the live and let live essences in our supreme law.

    They seek to change its nature into an inflexible control freak system.

    Good law is part of a system of law that does not think it knows everything at the beginning so it allows experimentation then tests the results to see if another State had a good idea, more good law. If so use it, if not reject it and find out for yourself instead. Meanwhile the other state who’s law was rejected does not take it personally. Live and let live, live and let die, or die and let live as the case may be.

    Progress.

  12. Thank you, Gene. This is, quite literally, a breath-taking thread.

    Tony C has inserted a most important thought into the discussion.

    I am awaiting the arrival of lottakatz as I am one of her ardent fans … also Bob Esq. should have some astute insights.

    I will sit quietly at the back of the Hall and absorb the brilliance … this is exactly why I started reading this blog 2 years ago!

  13. oops typo: “We have 50 such experiments now.

    We all all to adhere to the federal Constitution”

    should be:

    “We have 50 such experiments now.

    We all have to adhere to the federal Constitution”

  14. The absolutists, in an attempt to thwart the spirit of state law, have mounted an attack.

    They seek to supplant the sovereign state legislative mechanism for making good law.

    They seek to do it via ALEC.

  15. Are we are supposed to act like Gene H. is a recent arrival? The question is; Would JT hand over the care of his children to Casey Anthony just because she changes her name?

  16. What a bunch of gibberish.

    There is always a much simpler meaning to things than the obfuscating Byzantine intellectual gymnastics of the alleged intellectual classes “above” us would like to admit. They want life’s truths to appear incomprehensible in order to justify their own existence (and perhaps their paycheck).

    Yes, if it is as complicated as “they” suggest, then there must be the over-arching official dogma, the official propaganda promoted by the official propagandists. And there must be the official education to imbue the official propaganda, and the official officials to certify that the new official has taken all the official steps officially approved by the officials of officialdom who win careers by insisting on having it there way.

    Bastiat tells us what law is.

    He writes

    “What Is Law ?

    What, then, is law? It is the collective organization of the individual right to lawful defense.

    Each of us has a natural right–from God–to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two.”

    It is as simple as that. Good and evil are determined by that alone.

    And so you can determine thus. Is Obamacare lawful? No. I lose my liberty (completely). I also lose my property (a lot of it). The government has complete control over every aspect of my life by gunpoint (a simple definition of totalitarianism). And know you know why Obama likes it. Liberty completely dies thereby. And know you know what Obama and his dangerous, extremist, fanatics like it. But, I repeat myself. If I don’t have Obamacare no one else is hurt by by me by my not having it. Thus you know the law requiring it is a fraud and a crime itself.

    Is Social Security lawful? No. I lose my liberty to do what I will with my property (my own money). And government invades my place of work and interferes with me and my employer and I lose the liberty to contract. No one else is hurt if I do not participate in the program. It is not like I robbed a person so they could not save for the future or slugged someone and prevented them from working. I have done nothing to harm the other and yet a law was written to punish me about retirement and steal my money. Which it appears, now, that I will not receive. Thus: the theft by government.

    And on and on you go comparing every law with the right to your person, liberty, and property as long as you do not assault another or his stuff or actively stop him from living.

    http://www.constitution.org/law/bastiat.htm

  17. Didn’t the nazis also justify their nonsense on utilitarian grounds?

    You can pretty much justify anything on utilitarian grounds. It isn’t a very good basis for protecting minority rights.

    And what is up with the love affair of Kant that this forum has?

  18. KD,

    You seen why you Kant….You just don’t understand it…Kant can and did…with subject matter basis…..you….Can’t…because you never show your work….That is why you Can’t understand Kant.

  19. Tootie,

    What you posted is out of touch with the reality of the current context.

    Whether it is true or not somewhere is another issue.

    Einstein said make things as simple as possible, but no simpler than that.

    Here in this thread you have oversimplified.

    I give an example of conjoined twins, both male and female in my comment upthread.

    The two males have one penis between them, the females have two vaginas, but have only one brain in some areas so that when one does some things the other feels it too.

    Is it against the law for these four to consent to sex among themselves?

    In the spirit of state’s rights I say let the state decide what is right for them, so long as it does not violate the Bill of Rights, the federal civil rights and human rights that belong to all of us (e.g. Lawrence v Texas).

    Things are no where near the simplicity you allude to, so you are toying with absolutism, which is a form of oppression.

    Which is not good law.

  20. “And what is up with the love affair of Kant that this forum has?”

    I don’t know about a love affair with Kant on this site, but I admire the strength of his reasoning.

    Do you have a specific objection to Kant?

    Do tell.

  21. Gene H. 1, July 10, 2011 at 6:35 pm

    Bdaman,

    I’ve met Buddha (who it is my understanding has taken a possibly extended leave of absence) and he was most welcoming. I also found his posts to be both very intelligent and savagely funny. Although I wouldn’t want to be on his bad side, I can see where being in that position could really suck. You say that as if you’ve had personal experience running afoul of him. For your sake, I certainly hope not.
    ***************************************************************************************

    You sure work quick. Either way, I knew this day was coming. Congratulations Gene. Nice to see you turn over a new leaf :)

  22. Were I capable of thinking about what might make for a good law as contrasted with a bad law, I might think that a good law is one which a person can, as an act of deliberate will, actually obey; and a bad law is one which a person cannot actually obey through any achievable act of will.

    Will someone inform me, as fact of law, as to what is, or is not, an act of will?

  23. kderosa,

    Well then, you are in good company….It generally is the uninformed that cast dispersion’s such as these… And if you can still tell this…I can not tell you what to think…as You have proved convulsively that you positively are as well….I suppose actions speak louder than words…look at your incoherent postings….now put the foil back in the cabinet before your momma notices it is gone again….

  24. The usual ad hominem nonsense. Beleif in abortion rights has nothing to do with eugenics. The vast majority of the millions of legal abortions that have occurred since Roe v. Wade would have happened without legalization. Women always found a way to do this, esp. those of means and those with family in the health care field. Two very conservative older aunts of mine had both–money and a younger sister who was head nurse of a large labor and delivery department and they had no trouble getting abortions, which were performed by an obstetrician with a social register practice. very respectable people had abortions and were untroubled by the lack of legality. Poor women without someone like my head nurse aunt in the family had much poorer choices and worse outcomes, but were still willing to take risks. In the years just before Roe v. Wade, Catholic women were as likely to have an abortion as anyone else. People have been defying the Church for decades on issues where the Church has no credibility–just look at birth control.

    Abortion is an issue where life experience makes decisions more than moral posturing. It’s not difficult to find pro-life politicians who have had no trouble performing abortions as MDs in practice or paying for their girlfriend’s abortions when they break another supposedly Christian code. Abortion needs to be safe and without harassment, along with access to family planning and factual sex education, as well as access to good prenatal care and basic reproductive medicine. Otherwise, the country will look like the Bible Belt, which has had less luck curbing things like teen pregnancy than the rest of the country and much worse infant mortality.

  25. @AY, yeah but look who is making those accusations. Not exactly the cream of the intellectual crop. Two things rise to the top, AY, cream and scum, and you ain’t cream.

  26. Well KD, I can honestly say….You have been creamed on by pretty near everyone that has interacted with you here….How does it feel to be the divine pivot in a circle jerk…..

  27. @Rich, you need to review the abortion statistics post Roe and see just how many abortions there are among the poor and minority groups. Then read some Margaret Sanger and note how the data lines up with her brand of Eugenics. Coincidence? I don’t think so. The fact that you choose to ignore the outcomes says more about your slavish adherence to ideology then it does about the non-connection between legalized abortion and high abortion rates among the lower classes and minorities.

  28. Interesting posts for the most part. Thanks for the robust response.
    *********
    Tony C.,

    You raise an interesting point that I’ll get around to addressing tomorrow some time, but right now I’ve had a most tiring day out in the heat shooting guns and eating Mexican food and my brain is just not up to the task of a detailed response at the moment.
    *********
    bdaman,

    Thanks for the compliment? However, before attributing my guest blogging to someone else, you might want to consider that Jon has friends outside of this blog and that he has been known to ask favors (like guest blogging while he’s on vacation).

  29. It is good to know who your enemy’s are, then those you can hold closest….. Your friends you can trust……but the problem is find out who your friends are….But you have proved on numerous occasions you are no ones friend…because, you know not how to be a friend, simply is it not…

    You will find that folks who tend to lean to what is called the left/liberal side are much more intelligent than those leaning to the so called right conservative, less educated….yes there are exceptions in both parties but they are rarities…….

    If your proposition is correct…how has Rick Perry exceeded the governmental spending since being in office in excess of 282 per cent….this is compared to the national governments increase in spending 1.9 per cent….There is something wrong with that picture….Obama is considered a tax and spend liberal….Perry is considered a decrease in taxes and frugal type of person….while increasing the rainy day fund to more than 80 billion dollars, 5 of it this last year…..never mind that the money that is being spent the “debt” is deferred for the next 5 to 30 years in the form of municipal bonds…is that not balancing the budget on the next 1.5 generations…the first 5 years is the debt service interest…so in real dollars it is peanuts…the debt will have to be repaid…who will pay it….these are general obligation bonds…..oh yeah the tax payers of Texas….

    A Pig with lipstick is still a Pig…regardless of how you dress it…what color do you normally use?

  30. Gene H, excellent posting. Excellent posting and an excellent thread. Your bullet points seem to me to be a firm basis for an approach by the law-givers. Mespo also touches on a couple of points that are my primary concern from the position of one that has the law applied to them. He specifically addresses my two major concerns: “A good law …. is readily understood in purpose and in operation; …. enjoys overwhelming support;”

    Not being a lawyer I approach the law primarily as one to whom the law applies, and have always believed that a law that is not respected is a bad law. Respect is a word that I use to mean a number of affirmative acts on the part of the citizenry. Respect is a willingness to adhere to its tenants as well as recognising the need for its existence.

    A law widely ignored or broken across the entire spectrum of society is a bad law. The war on drugs falls under this category of bad law(s). Most people no longer agree that many drugs laws are needed, they have a disparate effect based on class/race and are widely ignored.

    Laws that are inherently so complex as to allow disparity in outcome and application are bad laws. Tax laws fall into this category. It also fails the “readily understood” tenant Mespo postulates.

    A law so complex that the citizenry can’t understand it builds in the likelihood that it will be applied unequally or can be built to have an unequal effect. It also carries the possibility that anyone, at any time might be in violation of it and subject to sanction. This is exactly the problem with the tax laws.

    Thanks for a thought provoking first posting, well done.

  31. Lk,

    I apply the law based upon uncharged one that I know some may be guilty of….and in most cases the SOL’s have run….

  32. I always thought self-professed smart guys would be able to better keep up with internet hoaxes. Nothing more embarrassing than showing yourself to be dumber than you brag to be.

  33. @Gene H: To be more clear, the crux of my argument lies in the rights of a tiny minority, or even a minority of one. I believe in free speech, for example, even if it is one person against everybody in the country.

    Or at least I say I do, but then, do I have the right to say something I know will almost certainly get innocent people killed?

    Does the USA have the right to torture even a convicted criminal if they fee certain they will save thousands from a terrorist attack?

    I believe all “greater good” arguments can be forced to fail when it comes to comparing the good of billions against the rights of one person. Thus we come to what is a civil right.

    The Founders did not really address this question; although they wrote the right to life was “inalienable,” even they engaged in executions of criminals. As for our American civil rights, The Bill of Rights can be overridden by a majority vote.

    I do believe there are good laws and bad laws, but I also believe that laws must be rooted, and perhaps for some this is counter-intuitive, in the rights that a minority has when confronted by an overwhelming majority.

    Now I am not making some oblique approach to the silly libertarian “I own my body” argument or some “in a state of nature” argument; I think those are just bullshit. I do not believe humans are property, even of themselves. I do not believe arguments from some mythical pristine state (or religious assertion) have any weight in reality.

    But I am interested in what you consider the foundational “civil rights” of the minority against an opposing majority, and under what circumstances those rights can be suspended or revoked.

  34. Clarification: The Constitution can be overridden by a super-majority of Congress; but that could actually be achieved by a simple majority of the population in each state, and even then, a quarter of the states could be left out.

  35. Gene H. responding to bdaman

    “bdaman,

    Thanks for the compliment? However, before attributing my guest blogging to someone else, you might want to consider that Jon has friends outside of this blog and that he has been known to ask favors (like guest blogging while he’s on vacation).”

    Will you confess to posting as both “Buddha is Laughing” and “Gene H.”, Ms. Howington? (A rollover on your avitar brings up “genehowington”, so don’t complain that I am exposing something that is not available to those who look.)

    Are you saying that Jonathan Turley is not aware of the fact that Gene H. and Buddha is Laughing are the same person?

  36. NoWay, et al nom de plumes,

    What the real difference does it make? Will you suffer some irreparable harm…. Are you inquiring for KD as well? If you are concerned so much…who are you? What is your real name….Are you not the same person….

  37. “Are you saying that Jonathan Turley is not aware of the fact that Gene H. and Buddha is Laughing are the same person?”

    Who cares if it is true or not. It’s immaterial. Gene Howington is using his real name, unlike trolls, like yourself, who post here. You will note that almost all of the prominent posters, like myself, use their real names. Some who don’t do so for professional and/or highly personal reasons. Those such as yourself might be found to post under a variety of identities, but the actual trolls choose anonymity for the same reason that internet sex predators may not even be the age or sex they’re pretending to emulate. The troll reasons may range from getting paid to post, not wanting to reveal any personal aspect of themselves to allow more freedom to attack and for using varied pseudonyms to seem to have support for their views.

  38. Tony C.,

    I have some duties here that require my attention first, but I will be getting back to you with what will probably be a fairly long answer.

    *****************
    NoWay,

    The rollover on my avatar does indeed say genehowington. However, if you’d bother to look, the rollover on Buddha Is Laughing says buddhaslaughing. Aside from your incredibly sketchy non-evidence, what you seem to have is a (mistaken) belief that I am the poster known as Buddha Is Laughing. You’re free to believe whatever you like, but if you’re going to believe I’m somebody other than myself, I’d appreciate it if you’d believe I’m Leonardo DiCaprio.

  39. Anonymously Yours,

    If JT rewarded BIL’s overt violations of this blog’s civility policy, it reflects poorly on JT. Did JT do so knowingly, or is he a victim?

    No other guest blogger found a need to change their “nom de plume” prior to posting an editorial. Those guests identified themselves with their real name when they accepted JT’s offer and began posting as guests. Rafflaw, NAL, Elaine M. and mespo727272 serve as examples.

  40. Mike S.,

    I have my own personal needs to remain as AY….For those that I know and have contacted off list….they know who I am…

  41. Ditto!

    I have my own personal needs to remain as NoWay….For those that I know and have contacted off list….they know who I am…

  42. NoWay,

    What does it matter…even if…and I have never met Buddha or Gene H off of here…Has Gene H. somehow attacked or offended you? What credible evidence do you have to show? I see a stark difference between the way Buddha responded, take no hostages form of verbal warfare and Gene H. If you cannot tell the difference I suggest that you read Kant….here is a link for you to discern whether you can even digest the simplest soliloquies, may I make a suggestion that you handle the second part of 1.a. definition…

    …for your benefit “so·lil·o·quies:

    1.
    a. A dramatic or literary form of discourse in which a character talks to himself or herself or reveals his or her thoughts without addressing a listener.
    b. A specific speech or piece of writing in this form of discourse.

    Now to Kant….just in case you can’t understand why some enjoy the age of reasoned enlightenment….Kant…..

    http://en.wikipedia.org/wiki/Immanuel_Kant

    As I said to you last night…Put the tin foil back in the cabinet before your momma finds you wrapping your head again….

  43. “I have my own personal needs to remain as AY”

    AY,

    As you know I know this for a fact since we’ve exchanged E Mails. I’ve never doubted you had sound reasons. Personal and career motivations are quite valid reasons for pseudonyms. Even as AY you have by your numerous comments given a glimpse of the type of person you are and what you do for a living. The trolls don’t do this because their strategy is to reveal little so that the can not be trapped by their beliefs. As an example one troll might be from some southern “Aryan Nation”.type of deal and yet adopt a moralistic/religious persona, going as far as even being a different sex than pretended. Merely an example of course, but shown to illustrate why their particular anonymity allows them not to be pinned down by their real selves.

  44. NoWay,

    Give me one person that posts here today that knows who you are…or is this a soliloquy in form….then we will treat it as it is….can’t make a fruit salad with tomatoes…don’t you know…

  45. I use “anon nurse” for professional reasons, primarily, FWIW.

    Regarding the accusations of “NoWay” — with way too much time on his or her hands — I agree with Mike S.

    Great showing with this post, Gene H. Thought-provoking to be sure, as are the many comments by the regs and others…

  46. AY, I was thinking specifically of Mike’s comment:
    “Who cares if it is true or not. It’s immaterial.”… FWIW

  47. AY, Babbling here… :-) What I meant is that I agree with you, as well, about the NoWay nonsense…, but specifically mentioned Mike S. because of his “Who cares…” comment….

  48. AN,

    I am an avid Words with Friends Addict…and Okay works but “OK” does not…it is only my twisted humor….

  49. AN,

    Decades ago, I tried to use the remainder of my Scrabble tiles with “Yo”… I was blasted… Now it’s in some dictionaries…

    OK… Ok…. “Words with Friends”… Who knew? Oh, the many things that I learn here…

  50. That was to AY — not a note to myself…. :-)

    AY,

    Decades ago, I tried to use the remainder of my Scrabble tiles with “Yo”… I was blasted… Now it’s in some dictionaries…

    OK… Ok…. “Words with Friends”… Who knew? Oh, the many things that I learn here…

  51. culheath..

    I forget…who are you…Now, if you were Hector Heathcoat….I’d know who you were right off the bat….

  52. GeneH:

    Isnt this more in line with Rousseau than Locke?

    Under any name it smells like tyranny to me.

    ““The greatest good for the greatest number” . . .

    This slogan has no concrete, specific meaning. There is no way to interpret it benevolently, but a great many ways in which it can be used to justify the most vicious actions.

    What is the definition of “the good” in this slogan? None, except: whatever is good for the greatest number. Who, in any particular issue, decides what is good for the greatest number? Why, the greatest number.

    If you consider this moral, you would have to approve of the following examples, which are exact applications of this slogan in practice: fifty-one percent of humanity enslaving the other forty-nine; nine hungry cannibals eating the tenth one; a lynching mob murdering a man whom they consider dangerous to the community.

    There were seventy million Germans in Germany and six hundred thousand Jews. The greatest number (the Germans) supported the Nazi government which told them that their greatest good would be served by exterminating the smaller number (the Jews) and grabbing their property. This was the horror achieved in practice by a vicious slogan accepted in theory.

    But, you might say, the majority in all these examples did not achieve any real good for itself either? No. It didn’t. Because “the good” is not determined by counting numbers and is not achieved by the sacrifice of anyone to anyone.”

  53. kderosa:

    “And what is up with the love affair of Kant that this forum has?”

    “The “phenomenal” world, said Kant, is not real: reality, as perceived by man’s mind, is a distortion. The distorting mechanism is man’s conceptual faculty: man’s basic concepts (such as time, space, existence) are not derived from experience or reality, but come from an automatic system of filters in his consciousness (labeled “categories” and “forms of perception”) which impose their own design on his perception of the external world and make him incapable of perceiving it in any manner other than the one in which he does perceive it. This proves, said Kant, that man’s concepts are only a delusion, but a collective delusion which no one has the power to escape. Thus reason and science are “limited,” said Kant; they are valid only so long as they deal with this world, with a permanent, pre-determined collective delusion (and thus the criterion of reason’s validity was switched from the objective to the collective), but they are impotent to deal with the fundamental, metaphysical issues of existence, which belong to the “noumenal” world. The “noumenal” world is unknowable; it is the world of “real” reality, “superior” truth and “things in themselves” or “things as they are”—which means: things as they are not perceived by man.”

  54. Blouise
    “Gene H., Please be Johnny Depp … please, please, please”

    ——————– :-) Be still my beating heart.

    ———————————————————-

    The only person on this blawg that has a right to any heartburn about the nom de plume(s) of one of the guest blawgers is the Professor- who I am sure knows all. It’s his house, his call. If one don’t like his call there are probably a bazillion other blawgs on the interwebs that one can visit. We are all guests here and should occasionally keep that in mind. This issue, like all such discussions, is just a distraction from the thread at hand.

  55. Jstol,

    If I may offer this and at the same time agree with most of what you have said…but beg to differ in reality and contextualization….

    This is out of:

    The History Guide

    Revolutionizing Education in the spirit of Socratic Wisdom

    I aim here only at revealing myself, who will perhaps be different tomorrow, if I learn something new which changes me. I have no authority to be believed, nor do I want it, feeling myself too ill-instructed to instruct others. (Montaigne)

    Lecture 12

    The Existentialist Frame of Mind

    …………”Existentialism is wholly subjective — that is, it begins and ends with the subject: man. In the 1780s, Immanuel Kant (1724-1804) had focused all his attention on the subject only in his case the subject was not man but the human mind. He was less interested in the objects of our knowledge — the phenomenal world — than he was with the faculties of the human mind. Kant said that the mind is rational, it is endowed with Reason. Within the mind there are the categories of judgment, cause and effect, time and space and so on. In other words, the Rational mind projects reason on the phenomenal world. The existentialist is not satisfied with Kant’s manner of thinking. Existence is not rational — it is absurd. The best we can say is that it simply is. The philosophers have invented Reason as a shield against fear or to rationalize their most irrational desires. As William Butler Yeats (1865-1939) once wrote, “We cannot know the truth but/we can live it.””

    http://www.historyguide.org/index.html

  56. kderosa:

    or this:

    “Must men then resign themselves to a total skepticism? No, says Kant, there is one means of piercing the barrier between man and existence. Since reason, logic, and science are denied access to reality, the door is now open for men to approach reality by a different, nonrational method. The door is now open to faith. Taking their cue from their needs, men can properly believe (for instance, in God and in an afterlife), even though they cannot prove the truth of their belief. . . . “I have,” writes Kant, “therefore found it necessary to deny knowledge, in order to make room for faith.””

    Faith in their case is not religious faith, not a belief in God but in government. But the outcome is the same. Why do you think they go after you so hard? You are a heretic in their world view and if they could they would surely have you on the rack or subject you to some other “wonderful” device used during the Spanish Inquisition.

    You are a pesky irritant, a non-conformist, an individual. Your kind are an impediment to them. A person who believes in the individual right of a man to his own life is a threat. You cannot control a human being like that, you must kill them or break them.

    Hope that helps.

  57. Jstol,

    This is where one can differ:

    Then we realize that with each choice and act we not only make ourselves but give the universe what value it has, we have discovered the dignity inherent in mankind. We must be committed — idle opinion or belief is nothing. So liberation then, is commitment to action. Like Nietzsche, as for the existentialists, we must seek but not possess.

    http://www.historyguide.org/europe/lecture12.html

    You have no concept of what you have written…

  58. So Jstol,

    This is where one can differ:

    Then we realize that with each choice and act we not only make ourselves but give the universe what value it has, we have discovered the dignity inherent in mankind. We must be committed — idle opinion or belief is nothing. So liberation then, is commitment to action. Like Nietzsche, as for the existentialists, we must seek but not possess.

    http://www.historyguide.org/europe/lecture12.html

    You have no concept of what you have written…

  59. Tony C: “I do not believe humans are property, even of themselves.”

    ——–

    Why? I’m mainly one for ‘yes you are’ as a starting point and negotiating exceptions based on the the tension between the personal freedom I see such a position bestowing and the needs of a viable, generally beneficial society. If you don’t own the only object that is inherent to you, what then are you, from what then does any personal freedom issue? I’d be interested in reading your rationale for that statement. Having enjoyed your postings previously I’m sure you have an interesting rationale.

  60. For one Jstol, You said we didn’t accept Kd because our faith is in the government….Most of us here have hope…I think that I can say this for most here is our faith has been shaken….Some of us believe in many different things…. The end result is KD is an Agent Provocateur….who cares nothing about the truth on stirring up the stink pot and cares not where the drift goes…..

  61. @Lottakatz: I believe it is immoral to treat persons as property, even metaphorically. I think that personhood is its own thing that cannot be summed up in the term “property.” I can sell my property to another person, that can then destroy it for their pleasure. Tobacco is a property, alcohol is a property. Shall the rich be allowed to purchase the lives of men and then kill them for their own pleasure?

    Property does not have feelings of regret, shame, or despair. Property does not aspire, and cannot be heroic. Property does not love its children. Property does not OWN property, my TV cannot, in any sense, own my blender. Property cannot decide its own future, or whether or not it should harm another, or protect another.

    Finally, property does not have responsibilities and obligations to perform, it does not have the right to life, or a trial, or to face its accusers.

    I do believe that people are free (or technically, I believe they should be free) to do with themselves many of the things they do with property: I think if they want to tattoo themselves, engage in dangerous sports (that do not recklessly endanger others), smoke, drink, box, or prostitute themselves, I do think it is immoral for adult A to control adult B as if B is the property of A. It is immoral to treat persons as property!

    That does not mean B is the property of himself. B is just a person, with a person’s rights, and is not the “property” of anybody.

    You ask, “from what then does any personal freedom issue?”

    The answer is simple: Your question is wrong. Your personal freedom is inherent in the fact that you are a normal adult person, it does not “issue” from anywhere. You don’t have to “own yourself.” Can your refrigerator own itself?

    People should be free, there is no logic I am aware of for why people should ever be considered property. (There is logic for restraining people, or putting them under the control of guardians, or incarcerating them: But even then they are not to be treated as property, they have just proven themselves incapable of functioning in a complex society without creating harm to themselves or others).

    I don’t understand why you (or anybody) needs an excuse to be free. People with minds are a unique thing all of themselves, they do not have to be **like** anything else. Nothing else on the planet fears a threat spoken over the phone, or feels joy at a marriage proposal, or dreads a number on a piece of paper, or feels pride at watching their offspring walk a stage. Humans are unique, with a unique anticipatory capacity, and language capacity, and imagination capacity, and logic capacity. Whatever freedoms and responsibilities we give them are unique to them, and need not apply to anything else on the planet, and need not derive from treating ourselves like anything else on the planet; least of all, inanimate property.

  62. who cares nothing about the truth and intent on stirring up the stink pot who cares not where the drift goes…..

  63. Kantian and utilitarian ethics are mere word-play, rationalist floating abstractions without logical tie to concrete reality. They are rationalizations of the bloody inhumanity of sacrifice, which even that depraved freak, Kant, confessed had no rational justification. The 20th century, with its mass murders, world wars and totalitarianisms, was the necessary effect. It had to happen when intellectuals spit on their own minds.

    Law is the institutionalization of individual rights, the conditions for life of man, the rational animal, in society. And the basic condition is the absolute rejection of the initiation of force. America was created as such a society even tho there were contradictions (eg, slavery, altruism, some constitutional errors) some of which festered into our current movement toward dictatorship. _Atlas Shrugged_ shows how we can return to the ideal of America as the society of the rationally selfish individual, a productive trader who sacrifices neither himself nor others.

  64. AY:

    I disagree, kderosa cares deeply about our country and the people in it. He/she just doesnt seem to believe in unlimited government.

    that doesnt make him a bad person. And if you think big government is the be all end all and panacea of human misery then you arent a bad person. It seems to me there is some sort of middle ground. Where the least of us are cared for but the best of us do not have to live in fear of nationalization of their assets.

    The right to property is a fundamental construct of our country.

    You all have been pretty hard on kderosa and he has some good things to say. I havent seen him say throw poor people in debtors prison or let people starve in the streets.

  65. SG,

    Good cut and paste…whats the source? Other than that…it appears as a dissertation of some grad student looking for a Masters….and a poor one at that….

  66. Jstol,

    You are saying we don’t? We too believe in limited government…but some government is necessary….What I do not understand…is when RWR touted less government…we actually got more….His understudy did not increase it so much….Clinton just maintained the government….But the son of a puppet master aka son of flubber did a large increase….check the numbers for yourself…

  67. @Lottakatz: Okay, I kind of made a mess of that middle thought, with tattoos and all. My point was that I think people are inherently free to do what pleases them if it doesn’t harm somebody else. If prostitution is voluntary, IMO it should be legal. If tattooing is voluntary, IMO it should be legal. If bare knuckle fist fighting for pay is voluntary, IMO it should be legal.

    If any of those things are coerced, or intentionally harm others without their consent, or have a realizable probability of unintentionally harming others, they should be illegal.

    ***************
    I will also point out another logical problem in the “I am my property” construct, the whole point of that is that you get to decide what to do with your property. But what gives the “you” doing the deciding that right, if “you” are also just property? From whence does THAT right flow? Property doesn’t have any inherent rights. So even in that construct, we run up against the conundrum of an intellect having the right to make a decision. I think we solve this problem by making the right of decision axiomatic. Which means, we take it as a fundamental truth that does not require justification: People have the inherent right to be free, which means they have the right to decide certain things, including deciding to put themselves in a certain amount of danger if they so choose. Not because they are property, but because they are people.

  68. Jstol:

    “I disagree, kderosa cares deeply about our country and the people in it. He/she just doesnt seem to believe in unlimited government.”

    *******************

    Nah. He believes in government limited by a corporate oligarchy. The oligarchy–that’s the unlimited thing.

  69. Tony C.,

    I hate to do this to you, but I’m going to put you off until tomorrow to answer for a couple of reasons.

    1. I’m dog tired and want to watch Breaking Bad and then go to bed. I had a late day family car emergency thing that turned into a dinner and see the new baby kind of thing.

    2. It looks like you and Lottakatz have a good thing going and I’d like to let it cook before adding back my part.

    Great thread, Regulars! Thank you all for your participation. It makes me feel like my debut effort was successful. Now if you’ll pardon me, I’m going to go watch Walt make some meth followed by an in-depth review of the insides of my eyelids.

  70. >Anonymously Yours: a dissertation….and a poor one at that….

    Ie ,you cannot prove that Kantian and utilitarian law are rational so you descend to personal attack.

  71. @Stephen Grossman: Likewise, Atlas Shrugged is full of logical holes we can drive a truck through, and so is the “rational selfish” hypothesis. Your claim that it “shows the way” is nothing but an assertion. To a large extent that world of low regulation with enforced contracts has been tried, including here in the USA in the 1700s and 1800s and early 1900s, and was rejected by the populace. They hated it. Should people be governed by a philosophy they think screws them over, just because some handful of people have raw faith that someday it will correct itself?

    You may not believe in majority rule, but do you truly believe in minority rule? Because that is what forcing a Randian system onto the people again would be; the majority doesn’t believe in it.

  72. Tony C: Your appeal to popularity is an illogical evasion of your need to judge ideas. But, perhaps, youre merely dumb as a doorknob as your emotionalist “understanding” of my ideas indicates. You merely assert, without even a faint whisper of evidence, that _Atlas Shrugged_ and rational selfishness are illogical. It’s absurd to suggest that I must provide a full proof of everything here. This is an informal forum ,not an academic journal. We can only indicate the evidence.

    Your ignorance of the content of _Atlas Shrugged_ is nearly total. The greatest novel in history is a rejection of all regulations, not an acceptance of “low regulations.” The early 20th century rejection of capitalism is merely unpopularity, not any evidence that capitalism is unproductive. The 1920s saw the massive spread of capitalist technology and prosperity in America. But also the Progressive-guided, Federal Reserve counterfeiting of money and bank accounts, an inflation that created economic bubbles in, among other areas, housing and stocks. The 1929 Depression was the correction, a correction that would have quickly (see the one-year-only, 1920 Depression) reallocated investment back into the most productive hands. But Progressives Hoover and Roosevelt piled more govt onto prior govt interventions. This would be familiar but a century of sleazily dishonest and ignorant Progressive journalists evaded this.

    Americans falsely thought that capitalism is predatory because they heard no moral defense of capitalism, merely the ignorant conservative’s cowardly, evasive, superficial, compromising desire for a pragmatic capitalism in randomly selected concrete situations.

    The self-correcting nature of capitalism has been known by economists since, perhaps, Adam Smith’s, 1776(!) _Wealth Of Nations_ and, certainly by Mises, 1949 _Human Action_. Every supply and demand sends price signals throughout the entire economy, telling people the real costs of their economic values. But govt economic intervention ,always at the point of a gun, hides these price signals, misleading people into bad decisions. You sleazily dishonest anti-capitalists evade intervention in your condemnation.

    Your concern with majority and minority rule merely reveals your stomach-turning lust for power at the expense of individual rights, the only rational function of govt. Rand discussed, at length, the need for ideas before voting.

  73. @Grossman: Ha! Define “individual rights,” tell me who decided that “productivity” is the be-all and end-all of human existence, show me how a finite supply (of, say, Emergency Medical care) combined with an infinite need (of, say, life-saving intervention after a car accident) produces a fair price; show me why a selfish rational actor that is virtually certain he can get away undetected with harming somebody else and earn a profit doing so should not do so, show me how we fund the police and courts that will FAIRLY enforce these Randian contracts and prevent murder and slow poisoning and arson of others, WITHOUT collecting taxes at the point of a gun, and without reserving “justice” only for the rich that can afford to pay for it.

    You are just another religious nut. Price signals are ignored when people are not held to account, and without laws restraining them, people will do anything, including engaging in murder, arson, assault, kidnapping and slavery to get their way and earn their money. The lawless Mafias (Italian and otherwise) and gangs and human traffickers and drug dealers have not arisen for nothing, exploiting humanity is profitable. They engage despite the laws and punishments; I can only imagine a world in which there is no law or government, and that reality would make Mad Max look tame by comparison.

  74. Plus Grossman is so hypocritical it is funny. He says to AY, “you cannot prove that Kantian and utilitarian law are rational so you descend to personal attack,” then when I say he cannot rationally defend his no regulation Randist philosophy either, he descends to … personal attack!!

    What a buffoon.

  75. “But, perhaps, youre merely dumb as a doorknob as your emotionalist “understanding” of my ideas indicates. ” (Stephen Grossman to Tony C)

    Turn off

    “Your ignorance of the content of _Atlas Shrugged_ is nearly total.” (Stephen Grossman to Tony C)

    You’re a day late and several dollars short … check back to a few weeks ago when Ayn Rand, her writings, and philosophy were discussed ad nauseam.

    “It’s absurd to suggest that I must provide a full proof of everything here. This is an informal forum ,not an academic journal.”(Stephen Grossman to Tony C)

    Citing is considered a courtesy here and everybody does it.

    A purist bore is still, nevertheless, a bore.

  76. “Your ignorance of the content of _Atlas Shrugged_ is nearly total. The greatest novel in history is a rejection of all regulations, not an acceptance of “low regulations.”

    ***********************

    LOL. Move over Dostoevsky, that conservative hack Ayn Rand scribbled out some diatribe and now Crime & Punishment,and The Brothers Karamazov sit in the bargain bin along with Tolstoy’s War & Peace and James Joyce’s Ulysses. And that Dickens fellow? Who’s that? Proust! An obvious know-nothing. As for Melville,de Balzac,Twain, Fitzgerald,and Flaubert, what did they ever do?

    Off the top of my head I can think of 25 better authors with more to say and a better style of saying it.

    Say, Stephen Grossman, do you read?

  77. @Blouise: Of course it is only absurd for him to be called upon to prove anything, but notice he can demand that AY prove the rationality of Kantian, Utilitarian philosophy.

    Of course I didn’t call upon him to prove anything, I simply noted that his economic philosophy is just as unprovable as anybody else’s. I should also add that if Randist philosophy is NO regulation, then we have certainly tried that as well, and the result was pretty much immediate despotism, kings, dictators, pharoahs, emperors and others that exercised absolute rule and the minimum of freedom. It has taken us about 10,000 years and we are still not completely over that.

  78. I think I just asked the source so I could read it for myself…to see if I was taking anything out of context….I generally provide a source of things stated unless they are Original to my mind or generally understood to be generally accepted as accurate….I do expect to be called out when I misquote a source or stated something incorrect…..SWM did me an honor this morning….I’d much rather be thought a fool than have written proof of the same….lol

  79. Stephen Grossman:

    I think you should explain individual rights to Tony C, I am convinced he does not know what they are. I am further convinced he is a totalitarian in sheep’s clothing.

    I have tried, but failed to explain individual liberty to him. I think he rejects it at a very visceral level.

  80. @Roco: And I have explained in great detail with plenty of logic that you refuse to answer why your conception of individual liberty would create misery, unpunished criminality, fraud, disease, death and destruction, but you are so irrationally selfish and adamantly devoted to a philosophy that excuses your vile selfishness that you persist in your stupidity even when you cannot explain it.

  81. “your conception of individual liberty would create misery, unpunished criminality, fraud, disease, death and destruction, but you are so irrationally selfish and adamantly devoted to a philosophy that excuses your vile selfishness”

    Who are you going to believe? TonyC or your own lying eyes?

  82. “Your ignorance of the content of _Atlas Shrugged_ is nearly total. The greatest novel in history is a rejection of all regulations, not an acceptance of “low regulations.”

    Like Mespo I am bemused by SG’s callin this the greatest novel in history. SG, really? I mean do you really believe that, really? My guess is that you are some 20 year old, with limited breadth of reading experience and/or skills. “Shrugged” is a potboiler of a novel written pompously in a style that is common today as romantic fantasy. The plot is ill-constructed and unbelievable, even in the SciFi genre it adopts, in an ill advised attempt to emulate Orwell’s “1984”, but with a happy ending. The characters are wooden and unreal. Dagny Taggart, the powerful woman, nevertheless ravished by “real” men. Ragnar Daneskjold, a Jules Verne ripoff, with his Captain Nemo super-submarine under the sea and finally John Galt, superhero extraordinaire, who emulates Tom Swift a children’s book hero.

    The truth is that “Shrugged” is book for immature teens and gullible adults, both incapable of seeing the logical results of its proposition. In literary terms it probably ranks below 10,000 books written in the English language alone. The fatal flaw of “Objectivist Pseudo-Philosophy is that it posits a society where inevitably the richest, most powerful and most sociopathic people take over everything and make the rest of the population serfs. It would be feudalism on steroids, because at least feudalism had some checks and balances. However, if you are to dense to see its’ flaws then you are merely a mindless, religious zealot, incapable of rational thought.

  83. We have nothing to show for the evils of capitalism, except for a bunch of stuff in industries that are largely unregulated:

    “The poorest Americans today live a better life than all but the richest persons a hundred years ago.” In 2005, the typical household defined as poor by the government had a car and air conditioning. For entertainment, the household had two color televisions, cable or satellite TV, a DVD player, and a VCR. If there were children, especially boys, in the home, the family had a game system, such as an Xbox or a PlayStation. In the kitchen, the household had a refrigerator, an oven and stove, and a microwave. Other household conveniences included a clothes washer, clothes dryer, ceiling fans, a cordless phone, and a coffee maker.

    The home of the typical poor family was not overcrowded and was in good repair. In fact, the typical poor American had more living space than the average European. The typical poor American family was also able to obtain medical care when needed. By its own report, the typical family was not hungry and had sufficient funds during the past year to meet all essential needs.

    Poor families certainly struggle to make ends meet, but in most cases, they are struggling to pay for air conditioning and the cable TV bill as well as to put food on the table. Their living standards are far different from the images of dire deprivation promoted by activists and the mainstream media.

    Forty-three percent of all poor households own their own homes. The average home owned by persons classified as poor by the Census Bureau is a three-bedroom house with one-and-a-half baths, a garage, and a porch or patio

    On average, the poor are well nourished. The average consumption of protein, vitamins, and minerals is virtually the same for poor and middle-class children. In most cases, it is well above recommended norms. Poor children actually consume more meat than higher-income children consume, and their protein intake averages 100 percent above recommended levels. In fact, most poor children are super-nourished and grow up to be, on average, one inch taller and 10 pounds heavier than the GIs who stormed the beaches of Normandy in World War II.

    However, even though the poor, in general, have an ample food supply, some do suffer from temporary food shortages. For example, a poor household with an adequate long-term food supply might need temporarily to cut back meals, eat cheap food, or go without if cash and food stamps run out at the end of the month.

    Still, government data show that most poor households do not suffer even from temporary food shortages. As Chart 7 shows, 92.5 percent of poor households assert that they always had “enough food to eat” during the previous four months, although 26 percent of these did not always have the foods that they would have preferred. Some 6 percent of poor households state that they “sometimes” did not have enough food, and 1.5 percent say they “often” did not have enough food.

    The bottom line is that, although a small portion of poor households report temporary food shortages, the overwhelming majority of poor households report that they consistently have enough food to eat.

    (Source)

  84. @kderosa: What a hypocrite you are. A hundred years before 2005 is 1905, and aren’t you guys the ones complaining about all the regulation, social safety net, unemployment insurance and other regulations that produced the wonderful results you will now attribute to “capitalism?”

    If anything, these results were accomplished almost entirely in the wake of the Great Depression the pure capitalism approach engendered, and are proof of the value of regulation and progressive policy.

  85. >Tony C: show me why a selfish rational actor that is virtually certain he can get away undetected with harming somebody else and earn a profit doing so should not do so

    This metaphysical fear is the necessary effect of evading man’s mind as the basic tool of survival. The mind as the source of production is not even a thought. Ayn Rand ridiculed the anti-capitalist mentality as, “The goods are here. How? Somehow.”

    Everything, nature (environmentalism) and society (socialism) becomes a deadly threat or a short-range relief from the paranoia. Other people, the paranoid feels after spitting on his own mind, are as irrational, short-range and self-destructive as he is. So, like any street thief, the socialist tries to sacrifice others before they sacrifice him. A very stupid philosopher, Hobbes, expressed this absurdity by calling man a “wolf among wolves” and calling for state control of the individual in almost psychotic ignorance of the bloody, dirt-poor, history of statism, a condition he claimed would exist only in anarchy.

    In reality from a rational perspective, beyond the anti-capitalist’s skeptically empty skull, everything is connected to everything else. What goes around, comes around. The world inhabited by thieves and murderers is an uncertain, violent world in which predators and prey change randomly change places. And the predators know this, which is why their entire lives are an anxiety-ridden attempt to avoid being prey. This is not selfish. The anti-capitalist obsession with creating ever-more elaborate fantasies of omnipotent “capitalist” predation merely reveals the method that socialists use in a futile attempt to evade the laws of economics.

    In reality, the dirt-poor history of man was ended over the last few centuries as businessmen, inspired by the new respect for reason and (implicitly) selfishness and partially freed from the state, used the new sciences to create life-enchancing and labor- and time-saving products for millions. This, somehow (sarcasm!), is missing from your view, a view in which predators, but not businessmen, are independent thinkers. But who is independent, the producer or the thief? What could a thief steal in the millenia prior to the rise of capitalism? Socialists look at our capitalist prosperity and drool mindlessly at the ecstasy of looting it from the productive. We even have creatures in our universities who provide sophisticated, abstract, pseudo-scientific rationalizations for looting. One such creature is now our President, a man who claimed recently that machines decrease jobs.

    From Marx’s academically-trained philosophy to Michael Moore’s emotionalism is a long way down. Intellectuals are turning against the scarecrow of socialism.

    And just exactly how stupid did you have to make yourself to claim that there was a society without regulations? Look out the window, moron, at the government street and at the government license plates of the cars. We have socialism, not complete, but socialism. Our schools are mostly socialist, too, explaining your chaotic mind and fear of those who do use their minds. As Rand said, there is no giant behind all the evils in history, just a scurrying rat. As one such rat said, “I have denied knowledge therefore, in order to make room for faith.” (Kant, 1st preface, _CPR_). One of his students, Homer Simpson, in obvious respect for his teacher, said, “D’oh!”

    The alternative to Marx’s love-and-granola utopia is mind and production. Who would you seek for investment advice, Paul Krugman or Steve Jobs? Is this the Summer of Recovery? How many more $trillions of “stimulus” are needed for prosperity and jobs? What, exactly, does Bernanke produce beyond out-of-context statistics? If offered a Federal Reserve Note or a gold coin, which would you take? If businessmen were free of regulations (and subsidies and unjust taxes), how much new material wealth and jobs would they create?

  86. “Who would you seek for investment advice, Paul Krugman or Steve Jobs?”

    I would choose Warren Buffett, who would think you and your silly pseudo “philosophy” ridiculous.

  87. Stephen Grossman:

    Well said.

    One thing though, I had not thought Homer Simpson was a Kantian. Can you please give a concrete example, I dont watch the Simpsons.

    Does that imply that Bart is a young Hegelian? Wouldnt that make Bart Karl Marx?

  88. Mike Spindell:

    Buffet might be good on investment advice for individuals but Ahnold took his advice to help California and look how well that turned out.

    I am not so sure I would take Buffet’s advice. He certainly had a hand in what happened in California.

  89. Mike Spindell:

    can you please provide a point by point refutation of what Stephen Grossman said without any ad hominem?

  90. @TonyC, there was never an unregulated capitalist utopia, as I’ve pointed out to you on past threads. But is was capitalism that got us out of the Malthusian trap, not regulation. We didn’t regulate ourselves to prosperity. What regulation mostly brings is stagnation, slowing down improvement.

  91. kderosa,

    tomorrow is change hat day … geeze … I had hopes that roco was our beloved “wasted” dude but no such luck … I really do miss that guy, By, can’t you rustle him up?

  92. Tony C:

    there is no conflict among men of good will trading with other men of good will whose metric is individual liberty, reason and personal responsibility.

    That which is harmful to you do not do to another.

    I owe my fellow man nothing except the respect they deserve as fellow human beings, they owe me nothing except that same consideration.

    I think you are a deeply misguided individual but I blame the socialist system of education. You literally cannot help it. kderosa and I have tried to help you and now Stephen Grossman tells you the same thing, that you are a creature of your education. Think about it Tony C, you are like the humans in the movie the Matrix. Except you’re not fuel for machines you are the sustenance of other human beings.

    You live in a shadow land.

  93. Stephen Grossman:

    “A very stupid philosopher, Hobbes, expressed this absurdity by calling man a “wolf among wolves” and calling for state control of the individual in almost psychotic ignorance of the bloody, dirt-poor, history of statism, a condition he claimed would exist only in anarchy.”

    ************************

    You’re just precious. Hobbes was quite the fool, you know. That’s why his works are studied in every political science program worth its salt.

    You should know that Hobbes actually said “Man to Man is an arrant Wolfe” in his preface to De Cive. It’s from the Latin, “Homo homini lupus.” Translated it means “Man is wolf to man.” The full quote is ” To speak impartially, both sayings are very true; That Man to Man is a kind of God; and that Man to Man is an arrant Wolfe. The first is true, if we compare Citizens amongst themselves; and the second, if we compare Cities.”

    But, hey, the illiterate have no need of accuracy in either quotes nor in interpretation of the works of greater minds.

  94. Tony C.,

    You are doing a commendable job of trying to lift up the downtrodden.

    Ayn Rand gave us that wonderful boy-toy, Greenspan.

    Okay, now I’m just being snarky. kderosa’s going to demand another hat change.

  95. @TonyC — here’s the kind of nonsense you get with regulation.

    Good Food [which sells freshly prepared breakfast, lunch and snacks to Washington-area day care centers and schools] was founded in 1979, and in its 30-plus years of existence, the USDA has never subjected the firm to inspection. Then Obama was elected.

    This year, the Food Safety and Inspection Service, the USDA’s enforcement arm, notified Good Food that it was in violation of FMIA. Despite zero evidence of any actual harm to consumers, the USDA determined that because Good Food delivered its food to day care centers and schools, instead of directly serving it to individual customers, it did not qualify for the caterer exemption.

    According to FSIS documents, the agency believes that “the nature of the catering business has changed” and it has “concerns” that caterers are “losing control of how the food is being handled.”

    So FSIS conducted a sting operation of 54 caterers nationwide. The stunning finding? “No food safety violation observed.”

    Despite no evidence of any food safety violations, or any actual harm to consumers, FSIS gave Good Food and 17 other caterers a “Notice of Warning,” meaning they had “180 days to modify their business model and comply with FSIS rules and regulations.”

    No harm found, yet caterers are being forced to change the way they do business for no good reason. This will likely lead to increased cost and greater inefficiencies.

  96. @kderosa: Why should I believe a hypocritical liar that makes claims without evidence but demands logic and proof from their opponents? All the evidence indicates that regulation demanded by citizens does precisely what it is intended to do, it prevents predation. The laws against burglarizing houses may not eliminate burglary, but the evidence is that they do reduce it, and they give citizens recourse. Your claim that regulation slows down progress is just bullshit ideology from you, nothing more, and a ridiculously moot point as well: You cannot even define “progress” except in your own terms of “profit,” and not everybody believes that “profit” is an inherently good thing. That burglar and mugger were making killer profits until we outlawed their business model, and maybe they complained about making a living, like the Southern slavers complained about destroying their way of life, but we did not care. We outlawed it anyway.

    If you want to side with an idiot that believes in ZERO regulation of any kind (as his post says) feel free, we will incarcerate you in the cell next to him so you guys can play chess without any rules.

  97. @TonyC, you know what is even better at stopping predation than regulation, people not buying the predator’s products. Who is forcing you to buy all these awful products from these awful businesses? Just say no, TonyC.

  98. Mike Spindell: I would choose Warren Buffett, who would think you and your silly pseudo “philosophy” ridiculous.

    Apart from your argument from authority, youve changed the topic from business competence to politics. Buffet’s politics, however, is anti-capitalist, from his acceptance of John Rawl’s philosophical egalitarian collectivism. Rand refuted Rawls some decades ago.

  99. Tony C:

    so now you are comparing lawful business with illegal activity and immoral activity. You are a real piece of work.

    Since you are a “businessman” [laughs in shirt sleeve] which one are you? Are you a criminal or just immoral?

  100. Mespo727272:

    have you ever read Hobbes? Or did you just go and find a couple of quotes?

    If you like Hobbes, I bet you really like Rousseau.

  101. >Roco: I had not thought Homer Simpson was a Kantian. Can you please give a concrete example

    Homer is a satire of stupidity. And Kant’s basic theme is the alleged unknowablity of reality. Don’t be fooled by sophisticated style. Philosophers and factory workers equally have the common human experience of choosing to reason or evade.

    >Does that imply that Bart is a young Hegelian? Wouldnt that make Bart Karl Marx?

    Never thought of it! ;>) One of Rand’s important points was the guiding influence of philosophy on everything in a culture, even cartoons. Hegel called this the spirit of the age.

  102. @Roco: “there is no conflict among men of good will trading with other men of good will whose metric is individual liberty, reason and personal responsibility.”

    Wonderful; and the cons, liars, frauds, and thieves will be kept at bay by… Invisible unicorns and magic amulets?

    “That which is harmful to you do not do to another.”

    Unless it would turn a profit and the chance of somebody realizing you harmed them was nearly nil, since in your system you are not violating any pesky non-existent regulations, and covering your tracks is precisely what “selfish rationality” would demand. You are being emotional. If you follow this rule, the conniving and ruthless rational bastards will eat you alive.

    “I owe my fellow man nothing except the respect they deserve as fellow human beings, they owe me nothing except that same consideration.”

    More bullshit; you owe others your very life. You owe the police and courts and military that kept you safe as an infant, that kept your parents safe when they were infants, you owe the citizens that paid for the free roads that bring your food, you owe the dead, maimed and disabled soldiers that preserved liberty in your country, you owe ME and my colleagues for earning half of what we could earn (and what I did earn) in industry in order to conduct research we give away for free to make your life safer instead of working to make some factory owner richer, you owe the firemen and civil servants and research chemists that made sure your home and offices more secure, and the engineers that gave away their work to reduce the chance of you being killed in a collapse and to increase your chances of survival if your building catches on fire, and reducing the chances of it catching on fire about 100 fold.

    If you want to pretend everything this country has given you and is giving you for free is worthless, you go ahead. I blame raw stupidity, piggish selfishness, and your runaway ego.

  103. @Roco: What? What in the world is “lawful” business in your book? You don’t believe in regulation, remember? What do you think laws are? REGULATION!

  104. >kderosa: What regulation mostly brings is stagnation, slowing down improvement

    Let’s concretize this idea: a doctor operating on you with a bureaucrat’s gun pointed at his head.

  105. Gentlemen, there’s no fighting in the war room.

    Tony,

    I’m curious as to what you think the impact of Mike S’s additions would be to your hypothetical.To me, that’d be the key, could an unbiased observer really say “getting rid of that 2% is demonstrably better for that 98%?”

    Gene,

    In so far as I consider ethical behavior as that which is aimed at causing the least amount of harm for others, I’d say the main difference between your definition a good law and mine of an ethical law lie in the last two points. All good laws are ethical, not all ethical laws would be good.

  106. mespo727272: Hobbes actually said “Man to Man is an arrant Wolfe” in his preface to De Cive

    My source is a philosophy professor/Jesuit priest/Fordham grad with five degrees, several languages and who taught internationally. He may have been wrong. However, your pedantry is noted. Please stand behind a curtain until I ring a bell for a trivial fact. Youre as stupid as most of my former philosophy profs. You feel as if a big random memory is a substitute for facts rationally organized. Its not. Scholarship is a means, not an end. Man’s mind is a tool of survival, not an intellectual kalEIDOScope. Navel-gazing doesn’t become respectable with a Ph.D. Modern philosophy is an unsustainable, intellectual bubble. That sound you hear in our culture is escaping hot air.

  107. Gene,
    I am late to the party, but a great first post!!
    I think a good law is any law that cures a societal ill or prevents injustice from occurring or continuing.

  108. Stephen Grossman:

    “Please stand behind a curtain until I ring a bell for a trivial fact.”

    kderosa and I have been trying to figure out something Mespo727272 is good for, thank you.

  109. “can you please provide a point by point refutation of what Stephen Grossman said without any ad hominem?”

    Roco,

    No. Ayn Rand was an author with less talent than most hack, bodice busting romance writers of today. She propounded an absurd pseudo-philosophy that anyone with a modicum of intelligence can see is unworkable given the
    nature of the past and present of humanity. The implementation of objectivism would inevitably lead to sociopaths taking control of this country and or the world. It exists as an excuse for a human’s lack of empathy towards anyone but themselves. Even Nathaniel Brandon, who Rand proclaimed her intellectual heir has denounced her.

    I discovered Rand through the movie The Fountainhead, which had Gary Cooper and Patricia Neal and so seemed good. Then I read the book and began to wonder how an Architecture critic could bring a powerful Hearst
    like publisher to his knees. something didn’t compute. Then I read Atlas Shrugged and not only did it seem poor Science Fiction, but the system was totally unworkable and lead eventually to feudalism. I was 19 then, an orphan and fully self-supporting. The world was fresh, my future was unlimited, but I understood nevertheless that Rand’s theories were cracked and ridiculous.

    So now 47 years later you want me to engage in serious debate with someone even more in Rand’s thrall than you? You can’t debate with someone who believes in an inane pseudo-Philosophy, without elevating that persons points to having rationales. Rand is terribly wrong on the surface and Grossman is merely some young twit, with a selfish heart and a one track mind. By the way it’s not ad hominem if it relates directly to the argument and my statements do. He is a true believer as much as any
    religious fundamentalist is and you really cannot profitably debate them about their beliefs, since their belief structure is one of faith, not reason.
    Even you, a Rand enthusiast, doen’t swallow her whole. That is a small credit to you, but he is Orthodox and I’m not talking about the Jewish religion.

  110. “That which is harmful to you do not do to another.”

    Roco,

    Attempted cool move that, trying a bit of petard hoisting eh? Doesn’t work.
    The combination of “It”, S.G. and your writings adds up to the fact that all of you might mouth that, but then follow it with a belief that is antithetical to it.
    Rand wasn’t a charitable person in any sense of the word. She was selfish, egotistical and predatory, just ask Nathaniel Brandon’s wife.

  111. “Youre as stupid as most of my former philosophy profs.”

    ***********************

    SG:

    I am absolutely certain of that as I am that you are the intellectual equal of my schnauzer. If you’re going to assert something around here how about some vague notion of what you’re talking about? Try that instead of those talking points some Republicon typed up for you and you futily try to inject. Btw the way I’ll be in front of the curtain every time I see some inept political hack maquerade as a political philosopher.

  112. SG,

    Just because your professor had education does not mean that he was able to teach you anything worthwhile…Just because you are bit by a snake does not mean you are going to be the one to die…The analogy is….Just because you went….does not mean you were bit….

    If you went to a catholic university the chances are the professor held classes at the local tavern…aka bar, aka saloon…aka you get the point don’t you?

    I came, I saw, I conquered….Veni, vidi, vici….This can be read on a pack of Marlboro.. It still does not mean you know what it means…

  113. “Apart from your argument from authority, youve changed the topic from business competence to politics”

    SG,
    The analogy made was, not by me, was whose advice would one take Krugman or Jobs? The obvious point was that jobs would know better how to handle the posited situation. Compared to Buffett who were from little to becoming the world’s richest individual, Jobs is an amateur in business competence.

  114. I have to agree with Mespo here, you don’t need to ring a bell to get his attention. He’s so desperate to make a point, no matter how minor or irrelevant, he doesn’t need encouragement. Take this current “dispute” for example, what bearing does mespo’s point matter apart from some sort of reverse ad hominem–he must be right because he spots typos better than most.

  115. “Youre as stupid as most of my former philosophy profs.”

    What’s the matter SG, did they laugh at your trying to quote Rand as they gave you an F?

  116. Look the ad hominem brothers are disrupting the thread again. As usual, no substantive arguments. Two fine examples of trolling at its worst.

  117. we’ve been through this already, tardy, considering the source–you, your statement lacks any credibility.

  118. Mike Spindell:

    You really havent made any argument at all. Lots of your opinions, and I do appreciate you sharing those. But Martin Luther King and John Kennedy were actual predators.

    An older woman having a mutually agreed upon affair with a younger man is passe. Of course she had feet of clay, she was a human being, a damn smart one though. And her ideas work in reality because she understood human nature.

    Most people are selfish, that is what religion tries to brow beat out of them. What is wrong with wanting to live your life for your wife, your children and yourself? By what right can you or anyone else for that matter tell me I must pay for my neighbors sustenance? Where is it written? I dont see it in the Constitution or the Declaration.

    We the people dont have a right to truss up I the individual like a cow and milk him for as much as we can get. The founders knew better than that and it is written everywhere by them, Adams, Jefferson, Madison, Mason, Morris, et al believed in individual freedom and property rights of individuals.

    And that statement I made? That is quintessential Rand, but you dont understand or cannot believe that she would think like that. Do you honestly believe she would say it was ok to pollute someones property with no consequence, or kill someone or steal their money?

  119. kderosa:

    If you are using the word tardy as a contraction of retard, I ask that you not insult people like AY, iimplying that liberals are retarded is a great disservice to the mentally handicapped. And liberals I might add, it gives them gravitas.

    I know from people who work with them [the mentally challenged] that they are decent, hard working individuals who want to work and be useful members of society.

    So please could you call them [liberals] progs or libs or even socies?

  120. Bob,

    You know, I was reading a book full of essays on food and philosophy. The one thing that really bugged me was Kant came up quite a bit; Epicurus, once; and not a single mention of any Chinese philosophy that dealt with food, of which there is quite a bit.

    Most of the essays were good, but the one about if food could be art was philosophy porn.

    Why yes, this is a ploy to try and change the topic of conversation.

  121. Gyges,

    I’ve never been a fan of aesthetics so I wouldn’t have much to say on that topic.

    Anyway, I’m just about to turn in for the night, but I was wondering if you still wanted the original pressing of Blood On The Tracks.

    If you got my email from you know who, then drop me a line and we’ll start figuring out how to do an ftp transfer using cute ftp.

  122. Is it the ID, Super ID or the EGO that that is the Head Puppeteer…So who pulls the strings….or is it ….automated responses system….that does the voice overs….Just asking….For what you all collectively have put out there I am sure you are well over paid….a side benefit of your postings….you give this blawg greater exposure…as subject is included in all search engines…I am sure the professor is grateful for all that you have done…

  123. kderosa
    1, July 18, 2011 at 9:39 pm
    it was not my intention to bemirch the mentally challenged by comparing them with AY.

    Ok, Now “W”, who is doing your Ghost Postings…..But you are fun to watch…snarking and all…lol

  124. @AY, I thought your tinfoil cap was supposed to stop these conspiracy theory voices of yours. Better double up, the waves are getting through again.

  125. Roco
    1, July 18, 2011 at 9:06 pm
    kderosa:

    If you are using the word tardy as a contraction of retard, I ask that you not insult people like AY, iimplying that liberals are retarded is a great disservice to the mentally handicapped. And liberals I might add, it gives them gravitas.

    I know from people who work with them [the mentally challenged] that they are decent, hard working individuals who want to work and be useful members of society.

    So please could you call them [liberals] progs or libs or even socies?
    *****************
    Please define progs, and libs and even socies?

    How is tardy a contraction of Retard?

    How does implying liberal as retards give them gravitas? As gravitas literally means: weight, seriousness, dignity, or importance, and connotes a certain substance or depth of personality. Are you implying that people with special needs are not entitled to the same protection….

    Now, here we go, you are relying on hear say….Are you too good to socialize or work with people who are different that you? You sound like proponent of Marx….that is ok, you have that right….Are you sure that you are not really a member of the National Workers Party…..from Germany…..

    You put out so many different positions….on so many threads….are you sure you are not a circus worker….a contortionist….And I believe you are…so with all sincerity and with a straight face, please go do yourself….

  126. Tony C.,

    “I do not believe negative utilitarianism corrects the defect.”

    Nor do I. I also don’t think the Founders were Utilitarians either, but rather in one camp or other of Rule Utilitarianism. Mostly in the Weak Rule camp as this is evidenced by creating a judiciary with flexibility in outcomes rather than a judiciary as rote rule functionaries. What is key to realize and most important to making Weak Rule Utilitarianism work in conjunction with Negative Utilitarianism is to consider the rules initially set as the parameters of the system. In the case of the Constitution and the Declaration, these parameters include both human and civil rights (the distinction is important) based upon Secular Humanism (which rejects all dogmatic and absolutist moral/ethical systems).

    These parameters include the “truths self-evident that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed” found in the Declaration which are a combination of both human and civil rights and the civil rights found in the Bill of Rights as bolstered by that later addition of the 14th Amendment as a further guarantee of egalitarianism espoused in the Preamble’s notion that this is to be a government of the People – not just some, but rather all of the people.

    I agree that not all outcomes are foreseeable but concurrently I also think that not all circumstances are foreseeable either. That is why the flexibility of Weak Rule Utilitarianism works as a basis for an analytical framework; it’s inherently flexible. Absolutism allows for neither unforeseen circumstance nor effect. It is a rigid form of thought. This is why I was careful to point out that absolutist systems are incompatible with formulation of a framework for deciding what makes a good law or a bad law. What that absolutist system is is ultimately irrelevant because it’s rigid nature precludes it from being a good tool for this job at the outset. It makes no difference that the absolutist system Strong Rule Utilitarianism, Kantian Categorical Imperative reasoning, or the more religiously dogmatic absolute systems of Fundamentalist forms of Christianity and Islam (both of which recognize the need for ethical behavior in society, but think that only God or Allah can be the arbiter of what is ethical), or Objectivism*.

    Since a good law must be minimally intrusive on a human or civil right, that brings use roundabout to your question of what makes a good civil right, but first we must stop and look at the distinctions between human and civil rights to clarify. Let’s start with the idea that human rights have the most universal application and are more closely bound with the inherent state of existence than with the civil rights which are codified into law as part of the social contract. Inevitably entering into the social contract of a society requires some sacrifices of rights to provide both punishments for what actions are defined as crimes and for the sake of equity in civil courts. This is the simple pragmatics of the matter. The pinnacle of human rights is the right to live, yet we as a society have deemed that some crimes merit taking away that right. Just so, there is a civil right to property, but that right is not absolute if you have used or misused your property in such a way as to bring harm to others. In those instances equity demands that you loose those property rights to another or through liquidation to pay for monetary damages in the attempt to make the victim as whole again as possible. It is this very intrusion upon rights to create justice that mandates flexibility in the evaluation of what constitutes a good law. Justice requires some flexibility in forming equitable outcomes, therefor a flexible philosophical framework is required to judge the social utility of laws.

    Human rights have less flexibility with respect to being curtailed than civil rights as civil rights can be solely defined by social agreement. This is not to say that the two cannot overlap. In American jurisprudence they most certainly do. Consider the idea (evolved from the works of Hume, Smith, Mills, Weber and Rawls) that certain kinds of rights are indivisible. Free human beings enjoying civil and political freedoms (freedom from fear, forced religion and want) can only achieve those freedoms if conditions are created whereby everyone may enjoy not just civil and political rights, but social, economic and cultural rights as well. Although I’ll take them out of order, let’s revisit mespo’s précis of what he thinks makes a good law as his list nicely touches upon not only what makes a good law, but points to what makes a good civil right as well:

    1. addresses a need;
    2. is readily understood in purpose and in operation;
    3. conforms to our principles;
    4. enjoys overwhelming support;
    5. affects and protects everyone;
    6. and reflects what is best about us — not what is worst

    To point 5 – To the extent that human and civil rights are overlapping and indivisible, it would appear that the first step in defining a good civil right is to ask the question: Does the civil right affect and/or protect everyone? If the answer is “yes”, then not only have you taken a step at defining a good civil right, but a good law as well. Is it egalitarian in construction and equal in application?

    To points 1, 3 & 6 – The second question of what makes a good civil right is does it address a need? In the case of a civil right, does it address either a human right or civil right that is important to the values upon which society was founded? In the case of a good law, does it address a valuable need for society (which in the case of American law is found in the Preamble’s “establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity”)?

    To point 4 – We are supposed to be democratic representative republic in form by the construction of the Constitution. That the law enjoy broad public support is a must. Unfortunately, today we see many bad laws that don’t enjoy broad public support but rather reflect the narrow dictates of special interests, but that is an issue for a thread discussion either campaign finance or voting reform. I only raise it here to illustrate that laws unpopular with the majority are often bad laws with narrow focus.

    To point 6 – What is the best of us? It’s those principles found in the Declaration and Constitution that strengthen us all like the promotion of justice (which requires maximum equity with minimum intrusion upon rights both human and civil), the keeping of the peace (not to be confused with the repression, oppression and increasing criminalization of society), providing for our mutual defense from both foreign enemies and from the criminal, psychotic and sociopaths among us, and doing our best to ensure that our laws – as part of the pursuit of both justice and liberty – promote maximum liberty as balanced against maximum social utility that may require justice and peace to impinge upon those liberties.

    To point 2 – I submit that is a drafting criteria. Laws should be as simple as possible. It creates less room for error and less room for abuse if exceptions are kept to a minimum (although they are pragmatically required for justice). For example, most laws governing the crime of murder are straight forward with the exceptions and affirmative defenses clearly spelled out. For a counter-example, our personal income tax code is a joke. It’s so complicated that it requires specialists and so full of abusive and inequitable loopholes that it’s practically non-functional. But a sliding scale flat tax code could be written that is just, fair, understandable by an eight year old and fits on one or two pages instead of the literally volumes of tax laws we have now. While some complicated subjects may require complicated laws, those that don’t, should be as simple as possible.

    Human rights, like the right to live free of forced religion, can be made to be fairly untouchable by the proper construction of law such as the 1st Amendment. Although its ability to keep a separation of church and state has been challenged over the years by those who would use the power of law to compel others to act in accordance to their beliefs, the 1st Amendment provides a fine example of a good civil right that can be protected in such a way to make infringing upon it extremely difficult if not impossible. Free Exercise is an example of human/civil right that is for all practical purposes inviolate in the Constitution. The only restraints against it for practical purposes are those deemed by society as necessary for keeping the peace (such as not allowing human sacrifice) although it can be argued that some restraints on religious practice while arguably about maintaining order are actually unjust (the prohibition of naturally occurring psychedelics as is part of some religious traditions). Civil rights, like the right to own property, are more mutable and must be in order to allow equitable solutions to civil wrongs. Some rights where there is overlap between a more universal human right and a civil right like the 8th Amendment right to be free from cruel and unusual punishments are often where the most difficult analysis lays. The right to be free of cruel and unusual punishments represents not just a human right, but because it was incorporated into the Constitution, it represents the best of us in seeking to a humane and just society. Any law that impinges upon that should be considered with the utmost and harshest scrutiny and rigorous ethical and scientific examination. That is part of what makes the Patriot Act so abhorrent. As an intelligence gathering tool, the science shows torture does not work. I won’t bother to connect the dots on why torture as a policy is not just bad law, but a violation of good civil rights that stand for the best of us. It doesn’t take a genius to figure out that torture is about sadism and attempting to create fear. The problem with that is, as I pointed out to Mike Spindell in conversation about Theory X (management by fear) in business, that fear often creates more than just fear. It creates hatred and resentment and encourages retaliation.

    So what makes a good civil right? I think we have a good template already in the Declaration and the Constitution. It needs some modernization and refinement, but it’s a good starting place. But what makes a good law? I submit taking into account the human and civil rights as defined by the Founders, applying a framework of Weak Rule Utilitarianism as constrained by the idea of maximizing those rights and analyzed in the light of Negative Utilitarianism is a good way to start answering that question. I hope this better addresses why I chose a synthetic approach left it open for the addition of “modular” considerations.

    *********************

    * As an aside, to any who might object that I’ve grouped Objectivism in with religions instead of legitimate philosophies, I am unconcerned with your objections. Despite pretending to be a philosophy, Objectivism is actually a pseudo-philosophy more akin to a religion built on the cult of personality both in its worship of Ayn Rand and appeals to the egos of its adherents. Objectivism has more in common with Scientology than it does with a legitimate yet absolutist (and therefor ultimately inapplicable) philosophy like Strong Rule Utilitarianism. If the “religious right” who have attempted to hijack this thread wish to speak about their Cult of Rand, feel free to do so, just realize that Objectivism has no more role in formulating a framework for the analysis of good law than Fundamentalist Christianity or Scientology does. Absolutist systems have no productive place in this discussion. This is the only time I will address the point of Objectivism as it relates to this topic.

  127. @Gyges: “I’m curious as to what you think the impact of Mike S’s additions would be to your hypothetical.To me, that’d be the key, could an unbiased observer really say “getting rid of that 2% is demonstrably better for that 98%?”

    I am not sure what additions you are referring to; but the real key is how is harm defined? Some people believe with all their heart that a girl losing her virginity outside of marriage ruins both her own life and theirs. This is what honor killings are about, and girls really are being murdered by their parents because of it.

    As for having the same rules apply to themselves: The same rules DID apply to them, when they were virginal, and they obeyed them.

    An “unbiased observer” cannot be bereft of knowledge, culture, and logic, otherwise they will have no judgment. In my example, the 2% are atheists, the 98% are devout religionists. It might really BE better for them to kill us, if our views are agitating them and causing that much fear.

    I think the tough nut of deciding a good law in deciding what is a good civil right; not in the common good. A few civil rights I think are fairly simple, but I think should be viewed as being conditional: You have the right to life, but forfeit it if you violate somebody else’s right to life. You have the right to freedom and property, but can forfeit both if you violate somebody else’s right to their freedom or property. Your rights are not, as the founders claimed, “unalienable,” and even they did not believe that. They executed people, they imprisoned people.

    I guess I believe in the rule of fairness; or egalitarianism. Fairness is an inherent calculation built into our brains since our early ape ancestry; it is observable in monkeys with brains the size of a woman’s fist.

    By that principle, I believe we must all begin life with identical rights (or identical potential, for age-delayed rights like voting), and that is more important than the specific rights we devise. I believe a similar thing about laws made for the common good: My goal would not be to strive for the greatest good for the greatest people, I think that is a false target, and risks harming a minority for the benefit of a majority. I believe in programs that plausibly benefit everybody equally, whether they favored the program or not. A good system of roads, schools, medical care, old age care, defense, research, police, courts, waste and sewage disposal, and other protections benefit even the fools that hate paying for them.

    By that principle, civil rights should not favor any definable group over any other; they must apply to everybody and create no privileged group.

  128. @Gene H: First, thanks for the lengthy post. My post to Gyges was before I realized you had answered. I have spent my alloted morning time on an answer to your post without completing the answer; so I will carve out more time to complete it shortly.

  129. Mike Spindell:

    “Then I read the book and began to wonder how an Architecture critic could bring a powerful Hearst
    like publisher to his knees. something didn’t compute.”

    You mean like a reporter hacking phones and bringing a Hearst like publisher to his knees? Like life imitating art and vice versa?

    Sometimes I wonder why conservatives are not in the drivers seat and then I remember what Ayn Rand said about the will to power:

    “A mystic is driven by the urge to impress, to cheat, to flatter, to deceive, to force that omnipotent consciousness of others. “They” are his only key to reality, he feels that he cannot exist save by harnessing their mysterious power and extorting their unaccountable consent. “They” are his only means of perception and, like a blind man who depends on the sight of a dog, he feels he must leash them in order to live. To control the consciousness of others becomes his only passion; power-lust is a weed that grows only in the vacant lots of an abandoned mind.

    Every dictator is a mystic, and every mystic is a potential dictator. A mystic craves obedience from men, not their agreement. He wants them to surrender their consciousness to his assertions, his edicts, his wishes, his whims—as his consciousness is surrendered to theirs. He wants to deal with men by means of faith and force—he finds no satisfaction in their consent if he must earn it by means of facts and reason. Reason is the enemy he dreads and, simultaneously, considers precarious; reason, to him, is a means of deception; he feels that men possess some power more potent than reason—and only their causeless belief or their forced obedience can give him a sense of security, a proof that he has gained control of the mystic endowment he lacked. His lust is to command, not to convince: conviction requires an act of independence and rests on the absolute of an objective reality. What he seeks is power over reality and over men’s means of perceiving it, their mind, the power to interpose his will between existence and consciousness, as if, by agreeing to fake the reality he orders them to fake, men would, in fact, create it.”

    It is because they have better things to do like make money and worry about their own lives.

  130. kderosa:

    you might enjoy reading the following ideas:

    “Isn’t that the root of every despicable action? Not selfishness, but precisely the absence of a self. Look at them. The man who cheats and lies, but preserves a respectable front. He knows himself to be dishonest, but others think he’s honest and he derives his self-respect from that, second-hand. The man who takes credit for an achievement which is not his own. He knows himself to be mediocre, but he’s great in the eyes of others. The frustrated wretch who professes love for the inferior and clings to those less endowed, in order to establish his own superiority by comparison . . . . They’re second-handers . . . .

    They have no concern for facts, ideas, work. They’re concerned only with people. They don’t ask: “Is this true?” They ask: “Is this what others think is true?” Not to judge, but to repeat. Not to do, but to give the impression of doing. Not creation, but show. Not ability, but friendship. Not merit, but pull. What would happen to the world without those who do, think, work, produce? Those are the egoists. You don’t think through another’s brain and you don’t work through another’s hands. When you suspend your faculty of independent judgment, you suspend consciousness. To stop consciousness is to stop life. Second-handers have no sense of reality. Their reality is not within them, but somewhere in that space which divides one human body from another. Not an entity, but a relation—anchored to nothing. That’s the emptiness I couldn’t understand in people. That’s what stopped me whenever I faced a committee. Men without an ego. Opinion without a rational process. Motion without brakes or motor. Power without responsibility. The second-hander acts, but the source of his actions is scattered in every other living person. It’s everywhere and nowhere and you can’t reason with him. He’s not open to reason.”

  131. “A [second-hander] is one who regards the consciousness of other men as superior to his own and to the facts of reality. It is to a [second-hander] that the moral appraisal of himself by others is a primary concern which supersedes truth, facts, reason, logic. The disapproval of others is so shatteringly terrifying to him that nothing can withstand its impact within his consciousness; thus he would deny the evidence of his own eyes and invalidate his own consciousness for the sake of any stray charlatan’s moral sanction. It is only a [second-hander] who could conceive of such absurdity as hoping to win an intellectual argument by hinting: “But people won’t like you!””

  132. “Notice how they’ll accept anything except a man who stands alone. They recognize him at once . . . . There’s a special, insidious kind of hatred for him. They forgive criminals. They admire dictators. Crime and violence are a tie. A form of mutual dependence. They need ties. They’ve got to force their miserable little personalities on every single person they meet. The independent man kills them—because they don’t exist within him and that’s the only form of existence they know. Notice the malignant kind of resentment against any idea that propounds independence. Notice the malice toward an independent man.”

  133. “It is fear that drives them to seek the warmth, the protection, the “safety” of a herd. When they speak of merging their selves into a “greater whole,” it is their fear that they hope to drown in the undemanding waves of unfastidious human bodies. And what they hope to fish out of that pool is the momentary illusion of an unearned personal significance.”

  134. “Notice how they’ll accept anything except a man who stands alone. They recognize him at once . . . . There’s a special, insidious kind of hatred for him”

    This is a very interesting quote in that it mirrors Teddy Roosevelt’s theories developed in his nine books dealing with the history of the west. It seems TR believed in the theory that the history of America was driven by singular (Anglo-Saxon) heroes leading the fight against the barbarian hordes of Native American’s, Blacks and non Anglo Saxon immigrants. Naturally, he saw himself as one of those “heroes” in the making and that later informed his political career. From this he developed his theories of Nationalist Imperialism. He became a “heroic” man who stood alone by spending two years on his Wyoming Ranch hunting, driving cattle and having himself appointed Deputy Sheriff for some months. He returned to write 2 books on his adventure on the frontier and 7 on the history of the western expansion as a metaphor for the rise of the US.

    In that same vein a certain author, with limited literary skills, saw herself as a person standing alone to bring leadership and focus to a nation awash in the ideology of community. Her disciples included that singular heroic figure Alan Greenspan and a young fellow she took to be, made her intellectual heir and then disowned her. The ability of a human being to add grandiosity to their own life narrative is unbounded and the reason why we should never trust easy theories of extraordinary men leading us out of our travails.
    Makes me think, were any of that author’s main heroes not Teutons or Aryans?

  135. “Notice how they’ll accept anything except a man who stands alone. They recognize him at once . . . . There’s a special, insidious kind of hatred for him”

    This is a very interesting quote in that it mirrors Teddy Roosevelt’s theories developed in his nine books dealing with the history of the west. It seems TR believed in the theory that the history of America was driven by singular (Anglo-Saxon) heroes leading the fight against the barbarian hordes of Native American’s, Blacks and non Anglo Saxon immigrants. Naturally, he saw himself as one of those “heroes” in the making and that later informed his political career. From this he developed his theories of Nationalist Imperialism. He became a “heroic” man who stood alone by spending two years on his Wyoming Ranch hunting, driving cattle and having himself appointed Deputy Sheriff for some months. He returned to write 2 books on his adventure on the frontier and 7 on the history of the western expansion as a metaphor for the rise of the US.

    In that same vein a certain author, with limited literary skills, saw herself as a person standing alone to bring leadership and focus to a nation awash in the ideology of community. Her disciples included that singular heroic figure Alan Greenspan and a young fellow she took to be, made her intellectual heir and then disowned her. The ability of a human being to add grandiosity to their own life narrative is unbounded and the reason why we should never trust easy theories of extraordinary men leading us out of our travails.
    Makes me think, were any of that author’s main heroes not Teutons or Aryans?

    “You mean like a reporter hacking phones and bringing a Hearst like publisher to his knees? Like life imitating art and vice versa?”

    No actually, this was a columnist who led millions with his Architecture Column. Um…do you know who the NY Times Architecture Columnist is,
    or the NY Post, or the London Times, or even the Wall Street Journal? go back and read the book. The true believer, under the spell of their Guru, twists all contrary evidence to somehow keep believing the Dogma they’ve swallowed whole. This is a barely conscious act since their thinking is so clouded by the Dogma and their self-esteem so bolstered by it, that their reaction is almost automatic.Interestingly that is a state so distant from Rand’s concept of a man standing alone against the tide and winning. Perhaps it is that mythology is only a metaphor taken as real by the gullible and the self-serving.

  136. Sorry for the double post I still had the text from my first post in my leave a reply box and added to it not realizing I had already posted the first part.

  137. Considering there is really nothing completely new, I can accept that she may have read TR (although she would disagree with his progressive policies) and integrated that idea into her own personal philosophy.

    The more I read philosophy, the more I see others with similar ideas about individual rights and free market capitalism.

    So what is your point? You have only given ad hominem. Especially in light of the fact that her books are still selling very well.

    I know you would like to believe she was a hack writer and I also know that if I was a progressive I would be smarting about what she said about progressive philosophy.

    Blah, blah, she is a hack writer, blah, blah, she was a predator, blah, blah she was a sociopath. Never a cogent refutation of her ideas.

    I dont think you have a cogent refutation and neither does Buddha is Laughing/GeneH or Tony C. I am still waiting to see one on this blog.

  138. >Mike Spindell: What’s the matter SG, did they laugh at your trying to quote Rand as they gave you an F?

    At graduation ,most seniors wore black robe and mortarboard but I paid homage to their complexity-worshipping nihilism with a Hawaiian shirt and straw hat. The dept chair/postmodernist/feminist/dyke/pseudo-expert in philosophy of science handed my diploma to me, saying, “Thank God!” After 25 or so philosophy courses, it necessary that I brand your evasive, rationalizing respect for modern thought to be branded for the intellectual absurdity it is. Modern culture is a toilet and you are one of the turds. [FLUSH!]

  139. Mike Spindell:

    You do understand that the Rupert Murdoch story would make a good plot for a novel dont you? I am not saying they are identical only that the notion is not absurd. The idea that an employee of a newspaper working against the owner of the paper to bring him to his knees because he disagrees with the owners philosophy. I personally would like to know the political orientation of the reporters who did the hacking, I have a feeling it might be very interesting.

    Come on Mike is abstraction such a hard thing for your concrete bound mind to understand.

  140. Mike S.,

    After reading SG’s post upon post of his expertise in philosophy…Why would anyone want to disagree…The only thing you, I or the blawg will get is some snarky response from one of the Trio’s…..

  141. “So what is your point? You have only given ad hominem.”

    I guess the new troll handbook, learned at the feet of many of their betters here, is to parrot back ones own phrases, in the vain effort to taunt. The cogent deconstruction of your Goddess has been made time and again, but to the religiously enthralled their mystical belief system underlies their own self-esteem and their needed rationale for their anti-social inclinations. Thus they are unable to even comprehend logic contrary to their beliefs.
    When I use ad hominem I admit it, in fact it was via such admission that you began to parrot it back to me. Calling Rand a hack writer is not ad hominem, it is merely an informed critical description of her literary skills. You’ve never once answered criticism of her ideas with anything but vain hopes, magical thinking and attempts to change the subject. Sadly, like any Religious Fundamentalist, you are blind to anything that might shake your faith in your prophet.

  142. Maybe, but at least then you’d have demonstrated that there’s something in that empty head of yours but air and the occasional conspiracy theory. That’s gotta be worth something to someone who fancies himself to be an intellectual. Intellectuals have smart things to say every now and then and aren’t so reliant on deflective ad hominem that serve to hide their lack of knowledge..

  143. Mike Spindell:

    I have and you call me a sociopath. Why would I continue in that vein?

    It is your opinion she is a hack writer. Why should I take your word? Are you some sort of non-partisan literacy critic who has no political ax to grind?

    I thought not.

    Do you even understand your position only holds water in the leftward land of lunacy? And your mirror is others who think exactly as you do?

    None of you have ever told me why her ideas wont work in reality except to say man’s nature. Well I am a man and I dont go around screwing people and getting everything I can at someone else’s expense. That flies in the face of your contention that Rand was a predator and that people who believe in rational selfishness are evil sociopaths.

    One must always endeavor to provide customers with a value for a value given. You do not grow a business by selling a $5.00 hamburger made from horse meat and cooked to the point of being shoe leather.

  144. Tony,

    Here they are,

    “What evidence is available that the reduction of harm claimed is in fact viable?”

    “What evidence is available that the good consequences claimed are viable?”

    Would a (admittedly theoretical) fair judge say “the evidence points to the Atheists upsetting you,” or would they say “the evidence points to you upsetting yourself about Atheists?” Further more would this judge decide that 98% of the population being upset is a more severe harm than killing 2%?

    I’ll also point out that anyone remotely familiar with human history would be able to predict that the purge would result in an ever increasing definition of what’s subversive. Thus failing the “unintended consequences” prong of the test.

    Although, now that I think of your kill all atheists law fails on another matter that I haven’t seen mentioned…

    Gene,

    You missed a big one: Is the law enforceable?

  145. “The idea that an employee of a newspaper working against the owner of the paper to bring him to his knees because he disagrees with the owners philosophy”.

    You keep trying to stretch reality to make your point, but your efforts are failures. Rand set out to write a heroic novel based on Frank Lloyd Wright’s career experience of going against the flow and yet refusing to bend. So far a decent plot line. She made his best friend and great admirer a figure resembling William Randolph Hearst, who was presented as another heroic figure of vision and self enterprise. For purposes of presenting her ideology she needed for the publisher, a great man, to be brought to his knees by the snarling crowd. This was so that she could compare the architect to the publisher and have the former emerge as the truly great man standing against the collective mob. Not a bad plot device so far.

    The problem was she was an intellectually lazy writer, yet a polemicist. How
    delicious, she must have thought in her shallow way, to show the differences between the two men than by having the Publisher laid low by his own Architectural columnist. Thus he would be forced to turn against his best friend’s work, a work which the Publisher personally believes in. This is where her hack nature stepped in to serve her attempt at political philosophy. The idea that the general public would be so enthralled by the columns of someone commenting on architecture, to the point of boycotting the paper they love, is ludicrous. Only a hack writer would make such a pivotal plot device so unbelievable and hackneyed. This is typical of all her work where she butchers narrative structure and credibility in the service of her basically elitist pseudo-philosophy. That is not even dealing with the fact that her dialogue is unpersuasive as real human speech and her characters are so wooden as not to resemble real human beings.

    In the end though what emerges from Rand, despite any protest she may make to the contrary, is a poor crib of Nietzsche’s Superman, standing out from, yet leading the herd. A rather elitist concept for one who purportedly believes in an egalitarian society for all, but really points to the strong leading the weak, which would be the inevitable climax of any nation that applied her pseudo philosophy.

  146. >[Gene H] Objectivism is actually a pseudo-philosophy more akin to a religion built on the cult of personality both in its worship of Ayn Rand and appeals to the egos of its adherents.

    Youre an intellectual fraud without even the pretense of evidence. As a rational hypothesis, your knowledge of Objectivism is limited to pop culture blather. Have you read even one essay by Rand? You evade ideas for personal attacks and beg the question of ethics by condemning the appeal to the ego without evidence. You further lie by sleazily suggesting that sacrifice has a rational justification. And your nearly psychotic, rambling “discussion” of politics was a brownnoser’s delight: memory w/o understanding and a mere rationalization of sacrifice and collectivism, for both of which there is no rational justification as your evasion of even an indication of proof clearly shows.

    What, after all, has modern thought achieved beyond a debilitating skepticism? Name one problem it has solved!
    It merely multiplies problems ad infinitum w/o solutions. Its base in the primacy of consciousness condemns it to puttering futility and hideously disasterous impracticality. See our ex-Constitutional Law prof President who “leads from behind.” Listen to the revealing hesitations in his speeches. He’s a modernist, unsure of anything except his humiliating ,cowardly desire for social approval at all costs. His high intelligence doesnt stop a functional stupidity. Modern man is an asshole.

    _Atlas Shrugged_ speaks truth to altruist power.

  147. “Well I am a man and I dont go around screwing people and getting everything I can at someone else’s expense.”

    We only have your word for that. I think many people who screw others don’t admit to themselves they are doing it, but supply rationales to overcome their internal qualms. For instance since I spent my career helping others I could claim to myself and others that I am an altruist. However, I’m am decidedly not an altruist, or altruistic.

    The work I did, though it benefited many, was done because I enjoyed doing it and got payed in the process. There was no nobility in my work, simply self satisfaction. You on the other hand have portrayed yourself as an almost noble businessman, considerate to your employees and attentive to your customers. Smart business strategy no doubt, but a self-reported one. I’m quite sure you could rationalize every time you strayed from your purported path. We all do what we can to live, however, for every time I’ve strayed from my moral compass I’ve admitted it to myself and to others. I have no time for self-deception. Given what you espouse politically, there remains a distinct possibility that all is not what it seems to you to be and your portrayal of yourself may be ripe for self deception.

  148. Gyges,

    Perhaps I should have put that down explicitly, but since the context was utilitarian analysis, enforceability seemed like a given. For the sake of clarity, we should most certainly include it as a prime criteria. There is nothing less utilitarian than an unenforceable law.

  149. “_Atlas Shrugged_ speaks truth to altruist power”.

    Your mis-assumptions are rife but the Altruist one is particularly of mark. Who here calls themselves an “altruist” I certainly don’t. I don’t trust those who presume to be “altruists” any more than I do those who believe in a shallow, pseudo-philosophy. Both are merely self-serving constructs used to bolster weak ego’s.

  150. Stephen Grossman,

    Thank you for illustrating that yours is an absolutist (and extremist) viewpoint and therefor inappropriate for consideration in building the kind of framework for legal analysis as discussed in this column.

  151. Gyges,

    Understood and that’s why I think explicitly adding enforceability into the criteria mix is a good idea. It was an unintentional omission on my part as I tend to keep utility and function hand in hand in my thinking. My implicit criteria is not going to be the same as others and enforceability is important enough that I should have given it more explicit mention.

  152. >[Roco]“Notice how they’ll accept anything except a man who stands alone.”

    Right on the ol’ schnozzola, bubie! The very thought of independence soils their pants. They have rejected man facing the universe for the blind leading the blind. From the sin of intellectual pride to the _Critique of Pure Reason_ to Timothy Leary are small steps.

  153. It is obvious that a sister should not have sex with her sister, that is well understood. What you need laws for is to prevent the brother from doing both of the sisters at once.

  154. >[Mike Spindell] Who here calls themselves an “altruist” I certainly don’t. I don’t trust those who presume to be “altruists”

    You evade identifying the necessary altruist base of the collectivism that is assumed w/o proof here.

    > a shallow, pseudo-philosophy.

    Arbitrary claim, w/o evidence; as if you said nothing.

    >Both are merely self-serving constructs used to bolster weak ego’s.

    Arbitrary claim, w/o evidence; as if you said nothing.

    “Constructs” is your sleazy term for the absurd claim that ideas are subjective, a claim you implicitly deny in claiming my ideas are false and yours true. And if subjectivism was valid, then your ideas would be as worthless as any others. But contradictions dont bother nihilist destroyers.

    Fallacy of psychological egoism: confuses psychological motives w/chosen ideas which are true or false. Every behavior is motivated, selfish or selfless, because man is a living organism. Motives may be moral or immoral and you evade that. More, “self-serving” depends upon what does, objectively, further man’s life and what does not. Merely because one wants something does not make it self-serving. Many wants are self-destructive. Rand’s “new” theory of egoism systematically distinguishes values which further and destroy man’s life by a rational standard.

  155. Stephen Grossman:

    ““Constructs” is your sleazy term for the absurd claim that ideas are subjective, a claim you implicitly deny in claiming my ideas are false and yours true. And if subjectivism was valid, then your ideas would be as worthless as any others. But contradictions dont bother nihilist destroyers.”

    I was thinking the same thing myself about what Mike Spindell said about me. How can he be alone be right?

    They do that a good deal, contradict themselves without evening realizing what they are doing.

    My favorite one though is when they use principles to prove principles dont exist. It is quite entertaining.

    Buddha is Laughing is the worst of them though followed by new comer Gene H. Sometimes he sounds just like Buddha is Laughing. I imagine they probably believe in a collective consciousness.

  156. “Have you read even one essay by Rand?”

    As I’ve said before I’ve read all of her major works. Besides that young man I listened to all night discussions with Nathaniel Brandon three times. during the late 50’s on NYC’s radio’s Long John Nebel Show.

    “You further lie by sleazily suggesting that sacrifice has a rational justification.”

    Not only are you a close-minded, religious acolyte, but you have little knowledge of the plentiful biological and anthropological material available that that sacrifice can have a genetic basis, even for people not directly related to one’s bloodline. Start you limited education with “The Selfish Gene” and then continue reading. Oh wait, you won’t do that because what would happen if your faith was disturbed, there would go your identity.

    “_Atlas Shrugged_ speaks truth to altruist power.”

    A the “strawman” argument rears its head. Name me one prominent person who calls themselves an altruist? Atruist and altruism are descriptive adjectives given of other people. Altruism barely exists”but I paid homage to their complexity-worshipping nihilism with a Hawaiian shirt and straw hat. The dept chair/postmodernist/feminist/dyke/pseudo-expert in philosophy of science handed my diploma to me, saying, “Thank God!”

    “but I paid homage to their complexity-worshipping nihilism with a Hawaiian shirt and straw hat. The dept chair/postmodernist/feminist/dyke/pseudo-expert in philosophy of science handed my diploma to me, saying, “Thank God!”

    My weren’t you the brave one in your own mind. To others it probably seemed immature and as stupid as that religion you believe in.

    “Modern culture is a toilet and you are one of the turds. [FLUSH!]”

    If modern culture is a toilet, your intellectual mentor bears a good deal of responsibility, Especially give her acolyte Greenspan having run the Fed and helping to create the religion of unlimited greed. As for your childish insult to me, since I know the limits of the source, it misses its mark. Especially because I think all scatological humor infantile. however, thinking about you mechanically priggish personality it might make good sense if you were as anal retentive as your screeds.

  157. “Sometimes he sounds just like Buddha is Laughing.”

    Gee Roco,

    Gene sounds like Buddha. That’s funny because you sound and write and believe exactly like another troll we had here sometime back, last named Byron. It’s really interesting to because he used to talk of his business the same way you talk of yours. He stopped coming around when he was found to be posting under other people’s pseudonyms, attempting disinformation.
    The resemblance is amazing and I’ll bet many of the old timers around here would agree.

  158. >I’ve read all of her major works

    Curiously enough, tho, your posts contain no evidence of that. Perhaps you know youre incapable of understanding and/or refuting her ideas.

    >the plentiful biological and anthropological material available that that sacrifice can have a genetic basis, even for people not directly related to one’s bloodline.

    Science is based on philosophy, not the reverse. Sacrifice is a volitional, not teleological (biological) action. Genetic action is relative to life, w/o moral characteristics. A gene may split or combine, etc. These are not the moral choices of a person w/free will. Only volitional action is moral or immoral, selfish or selfless. Genetic science will discover many facts but none about morality.

    >Not only are you a close-minded, religious acolyte

    Religion is based on faith in an impossible supernatural realm. Rand was systematic in deriving all ideas from perception, as she frequently and explicitly stressed. Given your claim to know her ideas, your claim that her ideas are religious is a lie.

    Rand opposed the active mind to both the closed and open mind. Strange that you dont know this…

    > Name me one prominent person who calls themselves an altruist?

    On Earth or your planet? Mainstream public voices frequently invoke altruism, whatever terms they may use, sacrifice, compassion ,helping others, duty to society, etc. Perhaps, however, you think that only ideological altruism is altruism. Americans are Pragmatists who like God, individual rights, selfishness, sacrifice, socialism and whatever strikes their fancy at any moment. Perhaps this blog’s evasion of ethics is a recognition that altruism is not rationally justified. Just a thought but worth pondering…

  159. Mike Spindell:

    Well I guess he has a pretty good business sense then. I know hundreds of people who talk about their business and employees like I do. Where do you think I learned it? You talk to people and you pick up good ideas.

    You must live a very sheltered life, I bet many of the government employed mental health people talk like you do.

    I think AY thinks kderosa, stephen grossman and I are the same person as well.

    Man you all are simple creatures. Maybe it is done so as to avoid contemplating that larger numbers are not part of the collective.

    So are you saying then that since Gene H mimics Buddha is Laughing he is Buddha is Laughing? Is that what you are saying? How do you know that? I just thought Gene H said some things Buddha is Laughing has said in the past. But I see that hit some kind of nerve for a response like that.

    Hmmm interesting. Others had some suspicion that Buddha and Gene were the same person. In fact I was making fun of that by saying Buddha and Gene had a collective consciousness.

    Do you know something the rest of us don’t?

  160. Gene sounds like Buddha.

    Gene is Buddha and I like it. Good job Gene. You are much kinder and nicer now that the mask has been taken off.

    Speaking of the mask,

    they call me Cuban Pete
    I’m the king of the rumba beat
    When I plays the maracas I go
    Chick-Chickie-boom
    Chick-Chickie-boom

  161. Stephen Grossman:

    excellent points.

    I hope you stay and post some more. I imagine others dont share my enthusiasm.

    I also took your story about graduation and the turd not to be a zing to Mike Spindell but what the dean said to you. And your way of showing how truly intellectually bankrupt the dean was. Is that wrong or right.

  162. AY:

    that is news to kderosa and Stephen Grossman then.

    We might hold similar beliefs but we are definitely not the same person.

    Get out a little more AY there are plenty of people who believe capitalism is a good and moral system.

    But it is funny.

  163. Roco, Buddha is Laughing is just another of Gene Howington’s sock puppets. Budha disappeared and GeneH appeared practically on the same day. GeneH, in true sock puppet fashion, compliments Buddha. Neither have commented on the same thread. And they both use the same dopey argument techniques. Zero substance, lots of factual mistakes, continual redefinition of terms in an attempt to “win” argument, lots of repetition of trite ad hominem phrases as a deflecting technique, not afraid to take extreme positions no matte how bad or stiupid it makes him look. Also, that guest blogging request had to have been floating out there for quite some time previous to GeneH’s appearance.

  164. Budha disappeared and GeneH appeared practically on the same day.

    Also, that guest blogging request had to have been floating out there for quite some time previous to GeneH’s appearance.

    Very good observations kderosa thats partly what did it for me as well

    Also how the regulars practically were tripping over their feet over him when he first started posting. AY’s comment was the dead give away for me.

    Like I said I like it and it’s nice to see Buddha, I mean Gene has turned over a new leaf :)

  165. Almost forgot: they both have fragile little egos. GeneH appeared right after Buddha was mocked for not being asked to guest blog. Then he got mocked for being a bad writer and an unstable personality. That must have driven him over the edge– and he pulled the old switcheroo. You can bet that Buddha will post a comment again to maintain the illusion, like he did a couple of days ago.

  166. People always told me
    Be careful what you do
    Don’t go around breaking young girls’ hearts
    And mama always told me
    Be careful who you love
    Be careful what you do
    Because a lie becomes the truth heh heh

    Buddha Gene is not my lover
    She’s just a girl who
    says that I am the one
    But the kid is not my son
    She says that I am the one
    But the kid is not my son

  167. Buddha will post a comment again to maintain the illusion, like he did a couple of days ago.

    He turned the bag into a bowl OMG

  168. Better watch it, now that the mask is off, GeneH might evert back to his nasty Buddha ways. Though, honestly, the GeneH persona isn’t much better.

  169. “Science is based on philosophy, not the reverse. Sacrifice is a volitional, not teleological (biological) action. Genetic action is relative to life, w/o moral characteristics. A gene may split or combine, etc. These are not the moral choices of a person w/free will. Only volitional action is moral or immoral, selfish or selfless. Genetic science will discover many facts but none about morality.”

    You really are a stupid clown, smug in your ignorance. The Selfish Gene, the book I referenced about genetics was written by Richard Dawkins. Do you even know who Richard Dawkins is, you ill mannered lout?

    http://en.wikipedia.org/wiki/The_Selfish_Gene

    http://en.wikipedia.org/wiki/Richard_Dawkins

    I made it easy for you to realize what an ignorant young man you are. Dawkins is probably the leading Atheist in the world, in addition he was the
    University of Oxford’s Professor for Public Understanding of Science from 1995 until 2008. I quote:

    “From the gene-centred view follows that the more two individuals are genetically related, the more sense (at the level of the genes) it makes for them to behave selflessly with each other. Therefore the concept is especially good at explaining many forms of altruism, regardless of a common misuse of the term along the lines of a selfishness gene.”

    You a biologist SG, or does reading Rand give you more scientific knowledge than biologists? Do you think biologists writing about biology are writing philosophy? Dawkins book was published in 1976 adding to the work of Williams another biologist. After Dawkins came many more scientific theses backing up that human selflessness has many positive biological and anthropological characteristics. This is just a brief example of how smugly ignorant you and your “wingman” are.

  170. Buddha where ever you are and who ever you are. This is for you buddy.

    Get up, get back on your feet
    You’re the one they can’t beat and you know it
    Come on, let’s see what you’ve got
    Just take your best shot and don’t blow it

    You see the world through your cynical eyes
    You’re a troubled young man i can tell
    You’ve got it all in the palm of your hand
    But your hand’s wet with sweat and your head needs a rest

    And you’re fooling yourself if you don’t believe it
    You’re kidding yourself if you don’t believe it
    How can you be such an angry young man
    When your future looks quite bright to me
    How can there be such a sinister plan
    That could hide such a lamb, such a caring young man

  171. @Gene H: I’d like to make it clear my criticisms below are analytical arguments in the style of peer-review (but I am not an attorney). A criticism does not mean I reject your thesis, or even your conclusion, it means I think some assumptions or claims are unjustified.

    I spent 25 years as an industry consultant, but I am currently an NTT full-time research scientist at a university. So with that background context:

    1) “These parameters include the ‘truths self-evident that all men are created equal, …’ ”

    2) From the standpoint of logic, I have no problem with simple axiomatic principles. Anybody that disagree with an axiom are free to try and develop a coherent system without it; that is how alternative geometries are made! But of course in any argument the axioms in use are the common ground; if we do not share those we have no common ground for discussion.

    To be clear about what I mean by “axiom” (since some readers seem to have a different definition than mine), an axiom is a statement that is so self-evidently true that no proof is needed. For example, Euclid claimed as axioms that parallel lines never meet, and that the shortest distance between two points was a straight line, that points had no dimension, that only one line could be drawn between two points, etc. To Euclid these were too obviously true to be broken down any further; to him and his peers these were the indivisible units of geometric argument. The proofs in standard middle-school geometry all rest upon the axioms collected by Euclid and the conclusions one can draw from them. Self-evident claims lead to not-so-self-evident truths; like the sum of the interior angles of a triangle is PI radians, or the Pythagorean theorem.

    However, as I said to Gyges above (not realizing you had posted), these rights the Founders proposed in the Declaration are not so unalienable; from the point of view of a 1790 horse thief about to be legally hanged. If they are not always true (as in, one forfeits a right to life for stealing a horse) that implies some further structure beneath the veneer; it implies there is some more fundamental axioms that are always true.

    3) “Absolutism allows for neither unforeseen circumstance nor effect. It is a rigid form of thought. This is why I was careful to point out that absolutist systems are incompatible with formulation of a framework for deciding what makes a good law or a bad law.”

    I’m not so sure of that! Geometry is absolute, mathematics is absolute, physics is absolute, even chemistry is considered absolute. Even if these sciences are all imperfectly understood (as is my professional opinion), at the bottom of the pile we know that protons are not electrons, and one plus one really is two, and the Pythagorean theorem applies to absolutely all right triangles (in Euclidean geometry).

    Our most successful systems on this planet, in terms of efficacy and understanding and applicability, have an absolutist foundation, and I believe we can find an absolutist set of axioms for governance. I believe politics CAN be treated as a science of governance; in my view that is what you attempt to do even now. Why not figure out the axioms first, and prove from the axioms the necessity of any less-self-evident-law?

    Then if, in the future, an application of the law produces some abhorrent result that is itself self-evidently wrong, if metaphorically speaking 1+1+1 turns out to be 3.01, then this is the beauty of science: We can trace the discrepancy to an axiom that can be corrected or replaced. Newton’s laws were absolute, but failed to explain the Michelson-Morley experiment. Newton’s axiomatic assumptions required change; eventually those changes became special relativity, which also explained a few other anomalies, like the orbit of Mercury (always off by a bit using Newtonian gravitation). Special relativity is (almost certainly) known to be flawed as well, with no evident replacement in sight.

    For another example, the Greek idea that an atom of an element could not be divided was proven wrong. But physics did not collapse; it discovered a more powerful predictor and rewrote its axioms. Now protons and neutrons and electrons could not be sub-divided, and we discovered the science of isotopes, anions and cations, we understood electricity. Then the indivisibility of protons and neutrons was proven wrong. But physics did not collapse, it discovered a more powerful system of quarks and a zoo of observable particles that led to quantum electrodynamics that can explain 99.9999% of experimental outcomes.

    The flexibility in science does not arise at the end, as with judges having the discretion to bend the law to create equitable outcomes. In science our flexibility is in the foundational assumptions: If some experimental result in science contradicts our predictions, then that means somewhere in our chain of reasoning, something we are certain is true is actually not always true. We have an axiom that is not absolute, but is conditional. It has a sub-structure. For example, atoms are usually indivisible, but experiments prove not always indivisible. It needs to be fixed, but in a way consistent with all previous experiments, while simultaneously explaining the newly found discrepancy.

    The Founders failed to establish their axiomatic truths. They proposed a few unalienable rights, then immediately passed laws that made them alienable (like the death penalty). To their credit they included the Bill of Rights as an Amendment to the Constitution, but Amendments can be legally overridden by a super-majority vote. That hardly seems “unalienable” to me.

    4) “Inevitably entering into the social contract of a society requires some sacrifices of rights …”

    Although I agree with the sentiment, I disagree with the formulation of this sentence; because it implies the social contract is a choice. It typically is not; infants are born and start involuntarily accumulating a debt to the society into which they were born. This is the nature of humans, we do not choose to be American or Egyptian, or to be raised Christian or Muslim or Buddhist, we do not choose our first language as French or Swahili. We do not choose our formative society; it is, in essence, imposed upon us.

    As I have discussed with Buddha in the past, the “social contract” is a bad metaphor. By the time we mature to the point where a choice could be made, the effects of growing our brain in our birth society are already accomplished, for good or ill, and cannot be undone without enormous difficulty.

    5) “It is this very intrusion upon rights to create justice that mandates flexibility in the evaluation of what constitutes a good law.”

    I suppose flexibility in evaluation is okay, I am not sure if you intend an escape hatch here or not. If I review a paper for a journal (and I have done several times) I expect originality, that is the point. In fact I will reject the paper if it is not original — So is that flexible, or inflexible?

    Were I a lawmaker, I suppose it is entirely possible a proposed law addresses a problem that I had never considered before. I am not sure why flexibility is “mandated” however; if the problem is real, why wouldn’t we consider solutions to the problem just like anything else?

    I guess I do not understand this demand.

    6) “Mespo’s list:

    6.1. addresses a need;
    6.2. is readily understood in purpose and in operation;
    6.3. conforms to our principles;
    6.4. enjoys overwhelming support;
    6.5. affects and protects everyone;
    6.6. and reflects what is best about us — not what is worst”

    Why 6.4? Civil rights should not be subject to majority rule. Otherwise, 98% of Christians can deny life to 2% of atheists. Atheism does not enjoy overwhelming support, and I doubt it will anytime in the next hundred years. By majority rule, the 90% of heterosexuals can persecute the 10% of gays, the Christians can persecute the Jews and Muslims, the whites can persecute the non-whites.

    What happens if a super-majority of people do not believe in freedom of religion, or freedom of speech, or freedom of the press? Take a poll of Americans today on whether Julian Assange (Wikileaks) is a journalist or a criminal (or possibly a terrorist) and the results are both alarming and pitiful; more than half of our population does NOT believe in freedom of the press they do not like, or freedom of speech they do not like.

    Civil rights should not depend upon popular support; the whole point of a civil right is that one does not require the approval of the majority to exercise it.

    I disagree completely with 6.6, it is far too subjective. Who decides “what is best about us,” and using what axioms? Show me the rules or the axioms and let us debate those, not platitudes with no concrete meaning. I know you cite the Constitutional principles, but I disagree. The Constitution is subject to change by even a 50.1% majority of citizens, if they play their cards right, and I do not think human or civil rights should be up for a vote. I think the Founders got that wrong.

    For example, some people think that religion IS what is best about us; and in their eyes “sin” is what is worst about us, and therefore murdering an abortion doctor is justice in the name of God Almighty: A life for a life, after all. By the same token the homophobes believe that restricting the freedom of gays to keep them away from their kids and keeping their views out of the public square is the best for society and as kind as we need be to them; the Bible mandates death for homosexuals as well. The homophobic say that kids are our future, unless the kids are gay, then they are a biological dead end and should be forced to procreate heterosexually.

    I like Mespo, but what is best and worst about us is in the eye of the beholder, we certainly need something less aspirational and more precise than that.

    7) “Laws should be as simple as possible.”

    Agreed, and agreed on the tax code.

    8) “The 1st Amendment provides a fine example of a good civil right that can be protected in such a way to make infringing upon it extremely difficult if not impossible.”

    Not really. We have had Amendments to the Constitution before, the First can be amended too. That may be “impossible” in the current political context, but in the wake of 9/11, the American people seem willing to tolerate an awful lot of abridgment of their rights in the name of “safety.”

    9) “So what makes a good civil right?”

    I submit the answer to that can be found by applying a version of the scientific method to politics; which to my knowledge has not been done (but I am not a political historian; either).

    Although the Declaration and Constitution espouse principles with which I wholeheartedly agree, I think the current state of corruption in American government, from the city councils to the US Senate, clearly indicate a failure in the design of our Constitution and political system that should be rectified.

    There is one Tea Party demand that, as a scientist, I would modify slightly and make a part of the Constitution: I too would like to see every law passed “proven” by citing the relevant Supreme Court rulings and constitutional paragraphs that the lawmaker believes gives his body the authority to pass said law. I would also require such “proofs” pass peer review with a randomly selected jury of qualified judges / attorneys; and referred to open court review if they fail in that review.

    My interpretation is that most of the Constitutional Rights were designed to restrain the government from tyrannizing the citizenry. I think that is a result of the Founders solving the most recent big problem they had, being tyrannized by a King. Which is fine; but it doesn’t go far enough in preventing the other forms of tyranny that arose in the industrial revolution.

    To me, the first function of government is to protect the weak from the strong. There are other functions; such as exploiting the economies of scale that can be achieved on many products and services we all need anyway, combined with the savings that can be achieved by doing what only a government can do: Running a zero-profit operation with civil servants. Government can also take a far longer view on investment and research than any private industry or individual that needs a return within a lifetime.

    But I see the primary function of good government, from the tribal leader of twenty on up to the national stage, as keeping the bullies at bay. It is why we have the military, the police, the courts and criminal law, it is why we enforce contracts and lawsuits even on huge corporations, it is why we have anti-trust laws, and OSHA, and employment laws, and product and food and medicine safety laws.

    I am not sure there is just one fundamental qualification for what should be a good civil right, but I think one candidate qualification is if it serves to protect the weak from the strong that would exploit their desperation, gullibility, ignorance, poverty, fear, pain or disability for personal gain. Among the strong would be the government itself; and the Bill of Rights is a valiant attempt to handcuff government tyranny. I just do not think that is sufficient to meet what I regard as the first function of government, to protect the weak from the strong.

  172. Sorry to burst your bubble, bdaman, but the only thing it sounds like is that some people have an overactive imagination. In artists, that can manifest itself as creativity. In children, it can manifest in a sense of play. In misguided people, it can manifest as sense of paranoia. Once again and for the last time, if any of you want to think I’m anyone other than myself feel free to do so, but I’d appreciate it if you’d think I’m Leonardo DiCaprio or perhaps Johnny Depp since he seems to be particularly popular with the ladies posting here. Do any of you have something topical to add to this conversation? If not, then might I suggest you move your snipe hunt to an older thread. I would like to take this opportunity to remind you that the topic of this thread is what makes a good law and what makes a bad law, not “Where’s Buddha?”. If you think that I have a similar writing style to Buddha Is Laughing, being that I rather enjoyed the posts of his I’ve had opportunity to read, I’m simply going to take that as a compliment. If you want to take any similarity between how either of us writes and make me the “Buddha Boogey Man” in your mind, I am completely unconcerned although mildly amused by your overactive imaginations. He said he was taking his leave and would be back at some point. If you have issues with him, please and by all means take them up with him when he returns because, quite frankly, I don’t care aside from the fact you’re wasting space with something that is just about as off topic as it can possibly be. BiL must have really put the screws to some of you to have you jumping at shadows. For what it’s worth, the “I Write Like” website thinks I write like Edgar Allan Poe. Think what you like, but let’s try to stay at least mildly and tangentially topical before I have to send out the ravens or brick one of you up in a wall.

    As an aside, you’ve once again mistaken me for somebody who takes anything you say seriously, kderosa.

  173. Mike Spindell:

    so what you are saying is that I will protect my son and daughter?

    Doh, you needed to read a book to figure that out?

    WTF?

    That is why people dont like to help just anyone, they want to help people who have value to them. You do understand you just made a case for eliminating the welfare state?

  174. Gene you might want to listen to that Styx song again.
    I know and I know that you know I know.

    It’s all good, I told you, I like it. I just think it’s funny cause I know your just dying to let it rip but you are having to bite your tongue.

  175. “So are you saying then that since Gene H mimics Buddha is Laughing he is Buddha is Laughing?”

    You know I didn’t say that, unless your reading comprehension is less than I think it is. I said you are very similar to and probably are Byron. In any event neither Gene being Buddha, nor you being Byron makes a difference. Both Buddha and Gene exhibit a brilliance, this article an example thereof, that makes the dim sparkle of you and your cohorts intellects seem shopworn and tawdry. I will admit though that it is breathtaking to observe the degree of hubris presented by all of you in your vain pretense at having anything approaching intellect. And no that is not ad hominem because it is based solely on the poor quality of your writing and of your intellects. Hilarious though that you probably see yourselves as “Superior Man Standing Alone Against the Wormy Collectivists of the World.” Superior, you guys, fat chance.

    “I can accept that she may have read TR (although she would disagree with his progressive policies) and integrated that idea into her own personal philosophy.”

    Now to give another example of how you all have such shallow simplistic understanding of history, back then “Progressive” stood for people who felt the great industrial leaders should lead the masses who were too lowborn to play a vital role in democracy. He was a thoroughgoing capitalist/elitist. He broke up the Trusts because they interfered with market freedom, not because he was on the side of proletarians.

    Roco, you really need to understand that I’m not coming after either of you with full barrels blazing, more like I’m shooting spitballs. Not because I can’t destroy your every point with facts and backup material, but because you all are far too superficial and intellectually limited by your silly beliefs to waste my time on full rebuttal. You all defend an indefensible proposition, throw up
    strawmen for you to vanquish and are too religiously enthralled to even admit chinks in your armor. I’ve come by my intellect the hard way, I’ve earned it. That’s why I can admit when someone has bested an argument I’ve made. I’m invested in finding the truth, you all are invested in the mutterings of a hubris-tic hack.

  176. “so what you are saying is that I will protect my son and daughter?”

    No I’m saying that it is genetically good strategy to actually protect people beyond your own family and that is what science has postulated.

  177. “That is why people dont like to help just anyone, they want to help people who have value to them.”

    Spoken like a true sociopath. In your Universe “value to them” of course means people able to be used to make life better for those with your psychological deficit. Love for you is never unconditional, but only based on seeing others as “property” for your narcissism.

  178. In any event neither Gene being Buddha, nor you being Byron makes a difference.

    I agree Mike it is what it is.

    How are you doing ?

  179. I have had my writing analyzed. I write mostly like Robert Louis Stephenson, with a strong touch of Stephen King and H. P. Lovecraft. Where did that come from?

    I ran Kd through the “I Write Like” web site and it said the writing style is most like David Foster Wallace. Frankly, I never heard of that writer, but The Google says he hung himself in 2008. One NYT reviewer characterized his writing as, “manic, human, flawed extravaganza.”

  180. “I agree Mike it is what it is.
    How are you doing ?”

    Bdaman,

    I’m great, how’s Mom? I see you’re into your schtick again, you pot boiler. ;-)

  181. Mike,

    These guys ain’t worth it. Your time and passions can be better spent elsewhere, especially when they have the chance to take a greater toll on you then they do on most of us.

  182. Gyges,

    Thank you for your concern, but until it happens to you (and may it never) it
    is incomprehensible the difference a younger heart makes when it comes to stamina (wink,wink). Anyway these guys have been fun, but I am getting bored. I really do like someone intellectually challenging me, because i’m always learning. These guys not so much there that’s either new or interesting.

  183. Mike Spindell:

    Have you ever listened to or read any of TR’s speeches? He was a progressive and all that implies.

    If you cannot see that, I don’t think you have much intellect.

    But getting into it with you is really not worth the effort because you cling to your liberal bias like a tick to an old hound dog.

    That was quite a speech Mike, but you didn’t say much except that you don’t have anything to say.

    Keep it safe for all the little people Mike. I think you are projecting again.

  184. She’s o.k. I got a break. She’s been staying at her house and my sister has been taken care of her. We go back to the endocrinologist on the 28th.

    My very good friend just received a blessing like you a couple of weeks ago. He got a 29 y.o. liver and came home this past Friday.

    Tropics are starting to heat up. Might see Cindy in the Bahamas Monday or Tuesday. Stock up !!!!!!!

  185. Mike Spindell:

    “Spoken like a true sociopath. In your Universe “value to them” of course means people able to be used to make life better for those with your psychological deficit. Love for you is never unconditional, but only based on seeing others as “property” for your narcissism.”

    So know you are saying that someones son or daughter should have no more value to them than some random person you meet on the street?

    You really need help. But that is what collectivists think, there is no self so what does it matter that you love your children and not some random child down the road.

    I think you better take Gyges advice.

  186. “Have you ever listened to or read any of TR’s speeches? He was a progressive and all that implies.”

    Before he was a politician he was a writer/historian, 9 books of history. As for progressivism being what you think it is: “Gunfighter Nation” by Richard Slotkin, read it and get back to me. I don’t state things I can’t back up.

  187. “She’s o.k. I got a break.”

    Bdaman,

    Great news, keep praying. It is a blessing for your friend and the liver is a harder organ to transplant. I wish him a quick recovery. As for the storm brewing I’ll be on my toes getting it from the horses mouth so to speak.

  188. “So know you are saying that someones son or daughter should have no more value to them than some random person you meet on the street?”

    If you think that’s what I wrote you need a remedial reading course fast, or a lesson in how to be honest. you might have also followed the links i gave, but you are far too intellectually lazy and dishonest to do that, aren’t you?

  189. I read your Dawkins links if that is what you are talking about. People are able to over-ride their biology (to a point) it is called free will.

    When I say to a point, they cannot prevent cancer or downs syndrome, etc by free will.

    There are many people who have no desire to pass on their genes. Biology is the basis of our life but it does not make our destiny. We do that. Blaming genes or the flight mechanism is an easy way out of avoiding the necessity of having to think.

  190. Did Mike Spindell just cite the Selfish Gene for the opposite proposition for which is argues? LOL

    Mike, stick to ad hominems, they don’t make you look so stupid as when you try to form real arguments like big boys do.

  191. @Buddha/GeneH, give it up, your subterfuge didn’t work.

    For your next sock puppet, don’t try to compliment your old sock puppet so much

  192. Otteray Scribe:

    I wouldnt put too much stock in that who do you write like website, it will change the writer based on what you place to be reviewed. I did it with a couple of different people on different threads, there was no consistency. I guess I would have to post at least 12 for each person to get any real idea.

    Didnt you say you cant make any kind of conclusion on a small sample?

    So how can you say kderosa writes like Wallace? I guess you dont believe the shit your write?

  193. Mike,

    I’m just disappointed that what could have been an interesting conversation got lost in Stock Argument about Ayn Rand #2 when all anyone should ever have to say about the matter is “Sonic Death Ray.”

    Orwell, Huxley (for the most part), Lem, and, as I’ve recently discovered, Banks, THEY could write science fiction with a message.

    By the way, Banks has a short story collection that you should check out. I know short stories aren’t your thing, but there’s a couple biggies about “The Culture” that get revealed.

  194. Tony C.,

    I think you’ll find those concerns addressed by allowing that absolutist systems that can point to universal truths, like Kant and the scientific method, have value as aspirational goals when defining the utility of laws. However, like perfection, these goals based on universal truth are not always going to be able to be met in practical fashion by society hence considering them aspirational. Where they can be met, they should be met, but pragmatic concerns about justiciability are going to sometimes make perfect solution unattainable as a practical matter. For example, let’s consider an instance of felony murder with the following facts: A man breaks into a bank to rob it (a felony). Once he is in the bank, he realizes that he has stumbled upon a kidnapping/hostage situation in progress being committed by another perpetrator (also a felony). The thief being armed and in reasonable apprehension that the kidnapper was about to kill a hostage, kills the kidnapper. On the level of axiomatic thinking, he has committed felony murder by killing someone while committing a felony himself; an action that merits an additional charge. That is the letter of the law. But is it justice to try him for felony murder since that murder otherwise met the affirmative defense of preventing imminent harm to others? The pursuit of justice, the ultimate goal of law, is in large part the pursuit of equitable outcomes. Since equity is a moving target dependent upon both the actions of parties involved and the circumstances under which those actions are taken, then in application the pursuit of justice must have flexibility in determining outcomes.

    Your comments concern science and the value of absolutist systems is both astute and reasonable, however, still inapplicable to legal analysis of the type I’m suggesting here for a simple reason: humans and human society don’t always act with mathematical precision nor are their values necessarily static nor do they occur in a vacuum as the above example illustrates. Mathematics and geometry can operate with greater precision than law because they are “purer” abstractions. A triangle is a triangle, but felony murder might not always be felony murder. Axiomatic thinking is fine and wonderful in it’s place, but I think you may be missing where I was pointing to as a source of the underlying axioms to define human rights (as opposed to civil rights) and that is Secular Humanism. As a philosophy, it provides a fine framework for finding those absolute human rights. That the Founders did not include these human rights in the Constitution with a great degree of specificity and choose instead to focus on civil rights does not negate that the civil rights they enumerated were in large part based on Secular Humanist thought. As I said, our civil rights could use some refinement to bring them more in line with human rights. Our system is not perfect, but that does not mean we should stop seeking to perfect it or that it is not a good starting point. In that refinement, I think Secular Humanism provides a great steering mechanism toward greater perfection. Human rights should not be subject to the whims of the majority. One such human right is the freedom of religion (which I think meets the criteria to be an absolute human right). That it is also a civil right in this country merely shows were that aforementioned overlapping of human and civil rights can occur.

    As an aside, that’s why I said mespo’s list points toward what makes a good civil right, but I did not say it was a definitive list. His list is more directly applicable to laws. Human rights occur by the mere existence of being a human. I think that is an axiom we can agree upon. Freedom of religion is one of those rights because belief is in one’s own mind. You and only you are the ultimate arbiter of what that will be. Consider what we see in societies where there is state religion. There has never been a theocracy where there hasn’t been an underground of those who believed differently than the majority. We are fortunate that our Founders had the foresight and hindsight to realize this so they enshrined a human right to freely exercise your religion of choice as a civil right found in the 1st Amendment. Even so, this absolute human right once it becomes a civil right must accept some limitations to serve to protect us from each other as mutual protection is one of the primary drivers of creating society in the first place (another axiom I think we can agree upon).

    If you wish to put “the best of us” as a subjective quality, I have no objection, but I would point to Secular Humanism as a good guide for developing objective criteria for what makes the best of humanity. For example, a key tenet of Secular Humanism is that everyone has the right to choose and exercise their religious belief of choice. This is an absolute right. No one has the right to make up your mind on your fundamental relationship with the universe for you. Even so, it must set secondary to the idea that societies exist for mutual protection. You are free to practice any religion you want, but if you practice human sacrifice, you will go to prison for murder. In this case, what is truly an absolute human right has to pay deference to the necessities of social justice. If you want to practice a religion that demands human sacrifice, you are free to leave and find a country where this is allowable (although I imagine such a country would be a lawless Hell-hole). This brings us back around to social contracts.

    On the issue of social contracts, I understand your contention but in the case of America (and most Western countries), citizenship is entirely voluntary. Although born into circumstance is involuntary, once a person reaches the age of majority, they are free to leave. Just because children don’t have opportunity to enter into a social contract willfully by the happenstance of their birth doesn’t change the fact (at least in the West anyway) that once that child has the capacity to legally contract, they are free to leave the social contract of America as defined by the Declaration and Constitution by renouncing their citizenship and living elsewhere. The voluntary nature of the contract holds, that it does not apply until legal adulthood I think is immaterial as we also prevent children from entering into all kinds of contracts before they have legal capacity (for very valid reasons), not just the social contract.

    These two paragraphs I agree to without exception:
    “My interpretation is that most of the Constitutional Rights were designed to restrain the government from tyrannizing the citizenry. I think that is a result of the Founders solving the most recent big problem they had, being tyrannized by a King. Which is fine; but it doesn’t go far enough in preventing the other forms of tyranny that arose in the industrial revolution.

    To me, the first function of government is to protect the weak from the strong. [Again, this is a tenet of humanism.] There are other functions; such as exploiting the economies of scale that can be achieved on many products and services we all need anyway, combined with the savings that can be achieved by doing what only a government can do: Running a zero-profit operation with civil servants. Government can also take a far longer view on investment and research than any private industry or individual that needs a return within a lifetime.”

    I think that our similarities in criteria selection have more commonality than not. Even though we might differ on the precise path to what makes a good law, I suspect we’d often come to the same conclusions. Since you have a fondness for axioms, let’s just say it is a reflection of the axiom that true answers may be reached by multiple paths.

  195. kderosa,

    You have really, completely mistaken me for somebody who takes what you say seriously. Concurrently, that means I take what you think as having even less value than your words.

  196. kderosa, bdaman, Jstol, NoWay and Steven Grossman can be called one in of the same. There is very little to almost no difference between the various postings of these trolls. I have run each ones writing style through a complex syntax development software and the probability’s that they are the same person is 89.889% the same. It is not conclusive proof but they are more likely than not the same.

  197. @buddha/GeneH, it must kill you to have to use that dopey “mistake me for someone who takes you seriously” line instead your old standby Big Lie/L’il Propagandist closer. Tell me how I inserted a premise into your argument just like “Buddha” used to mistakenly say. Shame about that slip up.

  198. KD,

    Go back to work in the circus….You are missed…Stupid human tricks are funnier there than here…

  199. Roco
    >I also took your story about graduation and the turd not to be a zing to Mike Spindell but what the dean said to you. And your way of showing how truly intellectually bankrupt the dean was. Is that wrong or right.

    Glad you think my posts informative.

    A zing to Spindell via the vignettes about my former school and modern thought.

  200. Gene H.
    >Thank you for illustrating that yours is an absolutist (and extremist) viewpoint and therefor inappropriate for consideration in building the kind of framework for legal analysis as discussed in this column.

    And ideological, too.

    Your relativist collectivist framework is destructive of individual rights. It should not be built. Nazism and Marxism are relativist collectivisms “good” for certain groups but not for man the rational animal.

  201. Steven,

    Thank you for proving that the experiment is successful. You once again, are showing you are a dolt, a bonifide dolt.

    dolt

    A person who is stupid and entirely tedious at the same time. Many times they are oblivious to their own mental incapacity.

    Mason and Chris are considered the company dolts because they screw up everything they touch.

  202. mespo727272

    >I am absolutely certain of that as I am that you are the intellectual equal of my schnauzer.

    That’s one damned smart pooch you have! Have you contacted Letterman or Leno?

    Wait a minute! Absolute certainty! Are you ready for the implications?

  203. Anon. Yours
    >I came, I saw, I conquered….Veni, vidi, vici….This can be read on a pack of Marlboro.. It still does not mean you know what it means

    Hold your breath until my multvolume magnum opus is published in ancient Greek. The truth will be there.

  204. Mike Spindell
    >did they laugh at your trying to quote Rand as they gave you an F?

    Another dept chair complained that I treated the faculty as children. The Jesuit complained that “You always win,” about our discussions of technical philosophy. The nitwit who taught
    Nietzsche and Plato via linguistic analysis refused to talk to me. Im growing misty. Thanks for the recollections. I say again, modern thought is basically destructive. It has nothing to say about life and reality except, “Help!” It is best symbolized by that profound artist and technical genius, Munch, in “The Scream.” Or maybe by “Chainsaw Massacre.” It’s hard to say.
    Your argument from authority seems to be leaking…

  205. I am sorry…It makes no sense to me…Multivolume Magnums Deed/Labor….what are you trying to say….

  206. @AY, I thought I told you to change that tinfoil hat. It’s for your own good.

    All these lefties flitting about and not a coherent argument to be had by them.

  207. KD,

    Are you still upset that 1) Your Application for Clown College was rejected; 2) That you flunked out; or 3) That they found the conviction for Sexual Deviancy with the sheep while in Clown Clothing dishonorable to the profession…..Which is it?

  208. Roco
    >If modern culture is a toilet, your intellectual mentor bears a good deal of responsibility,

    Rand has no basic influence yet. Ours is a Kantian nihilist culture at the basic level.

  209. Stephen Grossman:

    “Wait a minute! Absolute certainty! Are you ready for the implications?”

    Mespo727272 wouldnt know absolute from Stoli. But he could probably quote Dewey.

  210. “Stephen Grossman:

    By god it is a god damn Kantian revival in this here tent.”

    From what I’ve read, it appears that neither you nor your buddies could tell a transcendental illusion from a cleverly disguised rock.

    Although I do concur with Mr. Grossman’s claim that modern man is an asshole.

  211. Mike Spindell
    >From the gene-centred view

    Why should man abandon the man-centered view? Were you a guard in a Nazi death camp? Why are genes more important than man? “Aryan” genes?! Nazism is the necessary effect of our nihilist culture. And the liberal, Kant, created Nazism in his systematic rejection of knowing reality and in his ethic of sacrifice without values.

    Modern scientists dont know how to interpret their own observations, measurements and experiments because they lack an objective philosophy of science. They describe regularities instead of identifying causes. Recall Einstein’s, “The more I know, the less i know.” Whatever Dawkins knows about genes tells him nothing about man as a whole. Materialism was refuted by Plato and Aristotle 2400 yrs ago. There is, however, some movement away from Kantian/Popperian/Kuhnian/Feyerabendian nihilism and towards realism or so Ive been told.

    Philosophy studies reality and man as a whole, not as the parts studied by the special sciences. A gene is a part of man.

    Existence exists. Consciousness is the consciousness of existence. Existence is metaphysically primary.

    Rand solved Plato’s problem of universals with measurement-omission and Peikoff solved the “problem” of induction by identifying the process of induction as based on identity and causality and Rand’s theory of concepts. See David Harriman’s _Leap Of Logic_ applying both to the history of science.

  212. Bob,

    From what I’ve read, it appears that neither you nor your buddies could tell a transcendental illusion from a cleverly disguised rock.

    Now that was funny….smirking…May I use it sometime…

  213. Ms. Kderosa,

    The medications today can do you wonders. Have you considered alternative antisocial therapy? You might find just the right cocktail. It is in your best interest.

  214. KD,

    Have you figured out that “e” and “a” are not interchangeable in M_th? You get different results…. One, is METH the other is MATH…Just in case you could not fill in the blanks with the 2 vowels provided….It is highly likely that you have done more Meth than Math in your lifetime….lol

  215. KD,

    If you think I am Research Assistant…Then by all means prove it..I say that I am not…I don’t have too much time on my hands…..

  216. @AY, No, I meant you were being dense again and then you went and proved it.

    Now did I say that I thought you were Research Assistant? That must have been those voices you’ve been hearing. CHANGE THE TINFOIL, MAN.

  217. Elaine M.,

    Of course…that was one course I had to take serious…as you can tell English not so much….

    Off topic, I just heard on NPR that the National Government was developing a standardized curriculum…..When did Title IX change to allow such interference in the traditional state role?

  218. You are tricky KD….Get the foil back to your momma and maybe she’ll give you a treat….now go on boy…

  219. @Gene H: “On the level of axiomatic thinking, he has committed felony murder by killing someone while committing a felony himself; an action that merits an additional charge.”

    Well, not on the level of my axiomatic thinking. If the law finds this a crime, it is an example of bad law.

    Axiomatic thinking does not require THIS sort of fixed judgments. Here is something that might be an axiom: A crime requires either intent or uncommon irresponsibility.

    That is precise enough for a human to distinguish between a crime and an accident, and humans are uniquely qualified to judge whether intent was present or not based on circumstances and evidence.

    Neither occurred in this hypothetical: The burglar’s intent was to commit a felony by robbing a bank; and he should be tried for taking action on that intent, but his bank robbing was interrupted and voluntarily ended when he felt morally compelled to prevent a murder.

    Even if the law does have a specific penalty for felony murder, his intent was not to commit a murder to facilitate his felony in any way; or to eliminate a witness or facilitate an escape.

    Rephrase “felony murder” as a law of intent, and our hypothetical burglar is on the hook for a felony break-in, and simultaneously a hero, which I do not think mitigates the felony, but should be recognized as the heroic act that it was.

    As for secular humanism, I do not know anything about it, but if they have come to similar conclusions as I, good for them. I am not opposed to good ideas from others, but I prefer to think such things through for myself, I believe it helps me to recognize better ideas when I encounter them.

  220. Tony C.,

    I think you may got my point although we differ slightly on terms. You also formulated a valid legal axiom to boot although felony murder does not require intent to kill, only intent to commit a felony and someone happens to die. For example, if the bank robber had broken in and was in the process of breaking the safe when a guard rushed in, went to stop him and slipped and fell down a flight of stairs, killing the guard. That would still be felony murder even though the thief took no active part in the guard’s death. The reason I know you got my point was you saw the effect of rigid thinking on examining the situation and the outcome and came to the conclusion that although the thief should not be held culpable for the murder, he still nonetheless is responsible for the attempted bank robbery. Axioms are fine in the right application (which is usually construction of laws) but can be problematic in practical usage hence laws that may be rooted in axioms but built by the methods of Weak Rule Utilitarianism. If you’re interested in finding out more about Secular Humanism so you can think it through yourself, I’d suggest looking into George Jacob Holyoake and Auguste Comte. An organization you might be interested in learning about is the Council for Secular Humanism as they are very big on a topic you seem to favor, the application of the scientific method to defining rights and ethics.

  221. @Gene H: Well, by my axiom, the slip and fall death is an accidental one; I think it is a bad law that counts that as “murder,” and a lie on the part of the law as well (in the sense that I do not consider that “murder”).

    That is one of the problems I have noticed recently with law, is the piling on of ludicrous charges for a single act to try and exact greater punishment for that act. If the legislature thinks that greater punishment would better deter burglary, they should readdress the sentencing guidelines, and remove the leeway of judges in sentencing for burglary.

    Flexibility is an ill all of itself, it lets people make anything out of anything, and thereby exercise their prejudice, bigotry, racism, or favoritism with impunity. I think that the flexibility granted to prosecutors and judges is directly responsible for the corruption in our legal system that has led to our current caste system of justice. The rich and famous can be caught carrying drugs and get sentenced to 30 days probation four times in a row; a kid gets caught with twenty joints and goes to jail, not just for drug possession, but some unprovable intent to “deal drugs.”

    The cops (IMO) have been spared prosecution for outright murder, negligent homicide, manslaughter, torture, assault, and all sorts of minor crimes (including drug possession, theft and child abuse) because prosecutors decide on their sole authority that police should not be held to the same standard of law as civilians.

    We have a multi-tiered system of justice, with one set of laws and lighter sentencing applying to politicians, celebrities, the rich, and more severe sentencing with a conflation of charges applying to the people that are none of those things.

    I think flexibility in the application of law is an illness, it feeds the inequality it is supposed to prevent. It turns the police from servant bodyguards into enemy overlords. It breeds resentment, and creates more crime.

    I do not believe there is anything magical about human behavior that humans cannot understand and address with axioms. We know the difference between a crime and an accident, and the difference between a fraud and a loss caused by an investment that didn’t pan out.

    The First Axiom of axioms is that axioms must provide conditions that clearly divide one thing from another. It is not an axiom to say, “somettimes killing a person is not a crime.” That is a statement of fact, but there is no clear division. It rises to the level of axiom to say, “killing an unprovoked attacker in self-defense is not a crime.” (Whether we should adopt that axiom is a different question I won’t address here.)

    The Second Axiom of axioms should be that a ruling set of axioms are self-consistent; adding a new axiom cannot conflict with decisions based on old axioms, unless they are removed or altered to restore self-consistency (in which case, old decisions grounded in the axioms removed or altered must be revisited, in priority of consequence).

    Axioms do not require mathematical precision, they are simply codified belief made explicitly clear. They are also not permanent, but the Second Axiom of axioms makes the set relatively stiff; if every change or addition or subtraction must retain self-consistency. (It is like the Jenga game in a way! i.e. I want to add X so I must change Y in a way that the whole structure doesn’t fall apart because Y changed…)

    If the first axioms adopted represent one’s true beliefs, working to get around them is working to undermine your own true beliefs. Changing an axiom requires changing one’s beliefs.

    In my mind, “flexibility” in the law is an Orwellian term, intended to sound positive but actually masking unequal application. And humans being what we are, consciously or unconsciously unequal application morphs into favoritism for the rich, the famous, and fellow lawmakers and law enforcers, with unyielding and increasing severity for the rest of us: Increasing because the people making the laws and enforcing the laws and their rich friends are not really subject to it; or their penalty is just the financial cost of the attorneys that buy them “flexible” leniency or forgiveness. IMO flexibility in the application of law produces a ruling class and a working class, with different privileges and penalties for each. And to me that offends the Declarational axiom that “All men are created equal” in terms of rights, the law, and law enforcement.

  222. Anonymously Yours:
    I> am sorry…It makes no sense to me…

    Your a liberal skeptic. Nothing makes sense to you. I may as well talk to the wall.

  223. >[Gene H]: aspirational goals …. are not always going to be able to be met in practical fashion by society

    Yes, your subjectivism is impractical in guiding thought and action for survival. Thus short-range Pragmatist hysteria, like a fish flopping about on land. Focus your mind onto concrete reality! There is no substitute for reason as history so sadly shows.

  224. Thanks for the link, Mike Appleton. From the article:

    “The Alarming Revival of Ayn Rand: The Right’s Weirdest Idol of Them All

    A passion for the prose and philosophy of Ayn Rand tells us a great deal about an individual, none of it good.”

    Excerpt:

    But Ayn Rand seems like the biggest joke of all, one that might yet blow up in the party’s face.

    The plutocrats she worshiped are so few, the plebeians she scorned are so many. The GOP’s little people can’t all be totally illiterate, and Limbaugh and Glenn Beck actually urge them to read this woman’s books. It’s in-your-face deception that reminds me of the old stage villain, the silent-movie heavy with the waxed mustache, cackling behind his cloak and inviting the audience to share the cruelty he’s about to inflict on his innocent victims. It’s as if Wall Street is surreptitiously giving the finger to Main Street Republicans, laughing at the gullible recruits as they march to the polls to lower corporate taxes and deregulate markets. Ayn Rand, indeed. She would have applauded the big dogs’ ruthlessness but rolled her eyes at the Christian-family rhetoric they’re obliged to use for bait.

    She wasn’t one of them, of course; she certainly wasn’t one of us. She was one of a kind, thank god. In her defense, you might argue that her love affair with capitalism was rooted in a Russian Jew’s horror of the totalitarian systems that devastated Europe in the 20th century.

    That offers her a gravitas she doesn’t share with ultra-light Midwestern reactionaries like Paul Ryan or Michele Bachmann. But the more Americans read her books, the better for liberals and the worse, I think, for Republicans.

    Her work illustrates conclusively what a few brave clergymen and a few ink-stained relics like me have been saying for years to anyone who would listen, and to Republicans who refuse to listen — that Christianity and the wolverine capitalism of a John Galt are totally incompatible systems, two mutually exclusive human possibilities. They cancel each other out. Any political party that pretends to integrate them is a party of liars, and doomed.

  225. Gene H
    >the first function of government is to protect the weak from the strong.

    Youre commie garbage anxious that somebody may be better than you at something, anything.

    The only function of govt is protecting individual rights, inc/property rights (since man is not a ghost).

  226. It’s comical that Mike Appleton links to what is essentially an extended ad hominem (plus a few mischacterizations) and wishes he’d written it. A perfect metaphor for what the regulars have turned this forum into.

  227. Tony C.,

    We’ve strayed a bit from “what makes a good law” into the territory of “what’s wrong with the legal system”, which while related, are different topics.

    We simply have a different definition of axiom in play here. You said axiom initially and I read that as mathematical axiom since you come from a science background. I have no issue with your expounded definition of axiomatic as it allows enough flexibility to be practical in application. Total flexibility is not required and as you point out can be detrimental. The amount of flexibility required is simply enough to be able to address facts that may not mesh perfectly with the facts a law is designed to address and enough flexibility to allow some discretion in sentencing as sentences are rarely a specific remedy but rather a range of remedy. In fact, your “Second Axiom of Axioms” is what the concept of stare decisis is designed to address. A good judge only overrules precedent in one of two situations: 1) a new and/or unique set of circumstances in which application of precedent would result in an unjust outcome (it can always be overturned on appeal) or 2) the law in application is found to be somehow prime facie unconstitutional..

    On the issue of the tiered nature of the legal system, performing this kind of analysis is part of addressing that very problem. I agree 100% that the stratification of the legal systems is abhorrent to the Declaration’s axiom. The problem you are describing is three-fold in nature.

    One, it is created in part by over complicated laws and procedure. As already agreed upon, simplicity in statement should always be a goal in formulation of good law. A lot of people who “get off light or completely” do so because they have enough money to hire enough lawyers to deal with the often overwrought complexity of both the law and procedure and very often it is some procedural issue that gets them off. The answer to that is minimally complex procedure and reductionist approaches to formulating substantive law.

    Two, bad sentencing guidelines allow favoritism. While it’s true that judges need some discretion in their sentencing to reach equitable outcomes, the kind of favoritism that you describe can be addressed by better laws. One such law would be mandatory minimum sentencing for officers of the court or government officials found in violation of the law. While I’m generally against mandatory minimums for issues like drug possession (which should be treated as a public health issue instead of a criminal issue), I am most certainly for mandatory minimums for those who have elevated and specific duties to the legal system by the nature of their employment. They are the guardians and enforcers of the legal system and as such when they break the law, they should face the harshest of consequences because they have not just broken a law, they have broken their oath to uphold the integrity of the system. Their employment can be treated just like aggravating circumstances are treated on murder versus capital murder charges. On the issue of unconscious unequal application (specifically as it applies to the “rich and famous” problem”, I think prosecutors should be able to challenge lenient sentences just as they are allowed to challenge verdicts. A 14th Amendment argument can be made based upon median sentencing and if a person is found to have gotten a significantly lighter sentence than the average citizen due to no other consideration than their wealth or notoriety, then the median sentence should be applied. I don’t think this runs into a double jeopardy issue because the person has already been convicted, the heart of the appeal is Equal Protection. In essence, it would be an appeal that is primarily directed at the trial judge and their potential abuse of discretion in sentencing. I also don’t think this would qualify as cruel or unusual either if the procedure for it requires strict timeliness in filing such a challenge, say within 72 hours of an initial verdict being entered. There are a lot of details to iron out in a proposition such as this, but I think a workable system can be had.

  228. Stephen Grossman,

    You have yet to add anything to this thread of any substantive value and as such I’m forced to consider your comments on the same par as those of kderosa; not to be taken seriously.

  229. The failures of the Randians to understand both the function of government and human needs are staggering. They are so enamored of their icon they have suspended critical thinking and logic.

    That woman had no soul.

    Having said that, what does the discussion of Rand and her antisocial philosophy have to do with the differences and similarities in good and bad laws? BTW, excellent discussion between Gene and Tony above.

    I have always had some difficulty with the piling on of charges when there was an accomplice to a crime. Two guys are in a car. Guy #1 goes in to “buy a beer,” leaving Guy #2 behind the wheel of the car. While in the store, Guy #1 pulls out a gun, takes the cash register money and shoots the clerk, killing him.

    When they are caught, both are charged with Capital Murder. Guy #2 says he knew Guy #1 had a gun, but no idea he was going to rob the store, let alone murder the clerk. Jury convicts both. Guy #1 ends up on death row awaiting execution. Later, Guy #1 is executed. Guy #2 gets two life sentences running wild, without the possibility of parole. (This was a case I worked on, with a couple of minor details changed to protect the identities of the guilty).

  230. >[Gene H]:Running a zero-profit operation with civil servants. Government can also take a far longer view on investment and research than any private industry or individual that needs a return within a lifetime.”

    Profit is a fact and objective need of man’s life, not of a particular economic system. Planting a seed must have a profit in an edible plant or the planter dies. Have you heard that a science of economics was created some time ago? Have you heard that the Soviet Union is no more? And that boiled grass a la carte is a gourmet’s delight in North Korea? And that US unfunded liabilites are $115 trillion? Wake up and smell the red tape! Civil servants as far-seeing initiators of technological-industrial progress?! Wait in line in a Registry of Motor Vehicles! Face reality fearlessly like the Greeks. Im not saying you have to pluck your eyes out but, at least, open them. Marxism is false, a mere application of Kantian nihilism.

    The long run is a need of the individual’s survival. Longer than that is merely religion or the Marxist sacrifice to an impossible utopian future where all will be mindlessly selfless and milk and honey and loaves and fish will fall from the skies. Selfish long-range planning by private individuals have created more wealth than are feverishly dreamt of by commies like you.

  231. Stephen Grossman,

    If you’re going to address your inane comments to me, you should at least try to use proper attributions. The statement in question was made by Tony C.

  232. “At times her critics oversimplify Rand’s beliefs, which embody any number of contradictions and opacities. But essentially she glorifies the will and celebrates Nietzsche’s Ubermensch, the superman whose blazing passage through the world need never be impeded by the interests or opinions of mediocrities like you and me. It’s the same string of arrogant assumptions that spawned the Master Race theories of Herr Hitler: ego-deification, social Darwinism, arbitrary stratification of human types. Adapted for capitalism, it becomes the divine right to plunder — a license for those who own nearly everything to take the rest, because they wish to, because they can. Because the weak don’t matter. Let the big dogs feed. This repulsive theology was the work of a fairly repulsive person.”

    Mike A,

    Thanks for your link to Crowther’s “tour de force” article, quoted above. I
    would only add that I referenced Teddy Roosevelt above because in rereading after 13 years Slotkin’s excellent book “Gunfighter Nation” I was reminded of his critique of TR’s books on frontier history. TR was a “Social
    Darwinist” who believed in heroic men (he was somewhat misogynist) leading the masses in a series of racial wars for dominance of all of the non Anglo-Saxon/Teutonic masses. He was of the same cloth as Rand and contributed to the mythology that would lead acolytes to her. Your link relieved me from this troll interaction I’ve engaged in, which has lead the discussion of Gene’s brilliant article astray.

    “Mike,
    I’m just disappointed that what could have been an interesting conversation got lost in Stock Argument about Ayn Rand #2 when all anyone should ever have to say about the matter is “Sonic Death Ray.””

    Gyges,

    Thank you for rescuing from the insanity which led me to actually engage in lengthy debate with Trolls, who are incapable of logically debating anything,
    due to their mind blocking, religious zealotry of the secular kind. I should have known better. I do know better. I’ve actually given similar advice on other threads when the Trolls have done their hijacking. A good nights sleep and a review of my actions has restored my sanity in this instance.

    Gene,

    My apologies to you for allowing so much thread space to be taken up by off topic inanity. Thank you and Tony C. too, for bringing us back to the discussion at hand

  233. Congratulations, Stephen Grossman, Gene Howington’s GeneH persona doesn’t take you seriously (Howington’s Buddha is Laughing persona would have accomplished the same by calling you a propagandist and spewing personal insults), that means he’s incapable of responding to the merits of your arguments that show all the flaws in his proposed Kantian proto-totalitarian system of laws. (He’s not unwilling to engage because his fragile little ego doesn’t operate that way. That’s for your benefit, OS)

  234. kderosa,

    Kant isn’t the father of Weak Rule Utilitarianism. That would be John Stuart Mill. It’s factual inaccuracies like that that indicate precisely why no one should take you seriously. As for not taking Objectivists seriously in general, I don’t take any extremists seriously as they are zealots bereft of rationality. Rationality and the ability to understand what the word “equitable” means are requisites to participate in this conversation. You must be this tall to ride this ride. It’s nothing personal, unless of course you are an extremist.

    Also, if you’re going to persist in your delusions of thinking I’m someone else, I’d appreciate it if you’d think I’m Dashiell Hammett or perhaps Santa.

  235. >[Anon Nurse]:Christianity and the wolverine capitalism of a John Galt are totally incompatible systems

    Rand has been systematically repeating this truth for decades.

    Wolverine: the altruist claim that we are all morally selfless slaves of one another and that those who refuse to sacrifice themselves are predators withholding their obligation to sacrifice themselves. The possibility of non-sacrificial relationships is rejected. Man, the trader of values, is unknown to altruists.

  236. Steve Grossman,

    If you cannot explain what you wrote, then just admit it and be done….I merely asked for clarification…I suppose your words never need explaining since you are an admitted Randi….Is that anything like Commie?

  237. >[Gene H.] Ihave yet to add anything to this thread of any substantive value.

    I advocate values against your sacrifice of values.

  238. @Gene H: Wow, I love that post!

    The one thing I would add is this: If a judge is to rule contrary to stare decisis, then as a separate matter the judge should be required to formally “appeal the precedent,” first in written form and if necessary by appearing before a legal review board, so the circumstances that warrant a rejection of the precedent can be published as their own precedent.

    I understand that with some research something like the equivalent can be done already; but in the scientific community we highlight such things in peer-reviewed journals and conferences. The only equivalent thing in the law community seems to be cases that reach Supreme Courts, and I do not think that publicizes to the law community the exceptions that, for whatever reason, were NOT appealed (or accepted) by the State or Federal Supremes.

    I think that is too informal a method, and the law would be improved by making the reasoning for the exceptions explicit; this would also give both the prosecution and defense reasoned ammunition for either defending precedent or ignoring it, especially in cases where a judge is acting unreasonably with regard to precedent (unreasonably weighting it or unreasonably ignoring it).

    Requiring research and peer-review of the logic of a change in axiom, and making both the logic and the peer-review of it freely available, helps to keep the judges honest and the axioms consistent. When we do not require it, everybody wanders off into their own private set of ill-formed and internally inconsistent “shadow axioms” that are not actually the will of the people at all.

  239. @GeneH/Buddha:

    Nice try, but I didn’t state that “Kant isn’t the father of Weak Rule Utilitarianism.” What I actually stated was that you “proposed [a] Kantian proto-totalitarian system of laws” which merely described the nature of your proposed system, not the originator.

    This demonstrates why it is better to take your opponent’s seriously and respond to the merits of their arguments, or in this case the lack of merits, and point out why they are wrong instead of deflecting by use of ad hominems, such as “don’t take you seriously,” “extremists,” “propagandist,” “zealots bereft of rationality,” “engaging in Big Lie” which merely serve to make you look foolish.

    As for the definition of “equitable,” the issue is that we don’t agree with your unique definition.

  240. Tony C.,

    Thanks. You gave me good material to pivot off of so you certainly deserve in on the credit of it being a good post. To address your latest addition, while it is not a separate formal requirement, any judge that doesn’t like being overturned on appeal always carefully lays out why they are going against the grain of stare decisis in an opinion. I think the appeals process can handle this adequately but that a separate review channel might just create more (and duplicative) work. It might be tenable, but I’d have to give it a lot more thought before I could come down firmly on the side of a discrete review process. Some of your concerns about peer review could be addressed by using judiciary panels (like the three judge schema seen in some appeals courts) instead of a lone judge. Such a proposal would mean hiring more judges certainly, but it would provide the instant peer review function (albeit in a small sample space, but then the appeals process would still be in play) and would allow criticism in the form of minority dissent to refine the issues at bar. However, it wouldn’t require creating an entirely separate channel of review and all the attendant support structures that discrete channel would require.

    ****************
    Stephen Grossman,

    The problem being that the values you (and Rand) advocate are greed and classism. Your values degrade the value of human life. The values I advocate are equity and egalitarianism. My values uplift the value of human life by encouraging fairness in the legal system and equal protection under the law for all people, as in all human life, not just those “special few” Objectivism would promote over the lives of others. That your values are the antithesis of mine does not mean I am for sacrificing values in general. Just those that are bad for society, like greed and classism. That you chose your values poorly is your choice.

    You still have yet to add anything of substantive value to this thread. You’ve certainly preached a lot, but you haven’t furthered the conversation one bit. You are to be taken no more seriously than the Hellfire preacher raving from a street corner, which is to say not at all.

  241. kderosa,

    “proposed [a] Kantian proto-totalitarian system of laws”

    Except that I didn’t propose any such thing. I proposed a Millisian utilitarian system of laws that specifically limited absolutist systems like Kant’s to the role of aspirational models, not practical application. There is nothing totalitarian about laws that work in application unless, of course, you are against the laws because you want to break them. The only people on this thread proposing anything that leads to totalitarianism are the Objectivists whose pseudo-philosophy can only lead to the tyranny of the strong over the weak.

    Nice try, but all in all, just another example of why you are not to be taken seriously.

  242. @Gene H: …unless, of course, you are against the laws because you want to break them.

    Precisely; and that is what Objectivists want to do: “Freedom” for them is the freedom to harm others with impunity, the freedom to blackmail them, mislead them, endanger them, beat them, or risk the lives of workers or customers for profit. The fig leaf they put on this naked aggression is always “well, it is their choice…” except they will adamantly and categorically refuse to discuss the myriad situations where no choice really exists. They are anarchists, really, and ignorantly self-deluded anarchists at that, because in the fantasy world they yearn for they are always the presciently accurate super heroes, but in reality I suspect their gullibility and inability to think logically would make them the quickly ambushed victims of their own system.

  243. Tony C. sez: “…but in reality I suspect their gullibility and inability to think logically would make them the quickly ambushed victims of their own system.”

    ************************************************

    In the words of that iconic Guinness advertisement, “Brilliant.”

    There will be no way to test that observation, but IMHO, there is great truth there. At least, I hope we never get a chance to test it.

  244. ob,Esq.

    >From what I’ve read, it appears that neither you nor your buddies could tell a transcendental illusion from a cleverly disguised rock

    Of course, its an illusion!

  245. So which is it? A rock or an illusion of a rock? Do you tell the world often that you can see in 4D? or is this just an illusion….

  246. Mike Spindell:
    > Rand’s beliefs…. glorifies the will and celebrates Nietzsche’s Ubermensch,

    Youre a liar. There is no evidence for this and massive, explicit, systematic, constantly repeated counter-evidence. Rand’s acceptance of realism, objectivity and reason contradicts N’s subjectivism. She repeatedly rejects predatory, pseudo-selfishness.

  247. Anonymously Yours
    >So which is it? A rock or an illusion of a rock? Do you tell the world often that you can see in 4D? or is this just an illusion….

    Sad to say, my humor has escaped what’s left of your liberal mind.

  248. @GeneH/Buddha:

    Let’s get away from this Kantian/Randian distraction.

    Your entire argument is based on a dopey premise independent of Kant’s or Rand’s philosophy:

    The answer seems to be no. If there is no single view, absolutist or otherwise, that leads to a practical system for evaluating whether a law is good or bad, then there is only one option for building a framework for evaluation. That option is synthesis.

    Trying to determine when a law is good or bad is misguided as a system for making laws. It is misguided because there are no objective bounds and without bounds, such a system will lead to tyranny. The rightness of laws should not be determined by whether the law is good or bad, but rather on whether the law does not infringe our retained natural rights.

    In short, you have, after qoting the DoI, thrown out the entire Lockean political theory upon which it is based.

    There is no privledge to violate the rights of others no matter how good you think the law is. Similarly, there is no immunity from liability should one violate such a right even if that violation is for the greater good.

    The protection of individual rights is at the core of a state’s police power. State’s may prohibit wrongful private behavior. State’s may regulate rightful private behavior that may injure the rights of others. States have the power to protect the health, safety, and public morals of the populace. States do not have the power to reach purely private “immoral” acts.

    This last part is important, were the state allowed the power to prohibit any purely private activity on the sole ground that a majority of the legislature deems it to be immoral, there would be no limit on state power since no court could regulate the rationality of such a judgment. S between a legislature and a citizen, the legislature would improperly be the judge in its own case.

    How can a proper regulation of rightful activity be distinguished from an improper abridgment of the private rights of the people? The key is whether the laws are a pretext for purposes other than the prevention of future or rectification of past violations. One sign that a law is pretextural is when the law benefits a particular group rather than the general public. Does a particular law benefit every person in the community as a whole or whether it instead benefits some majority or minority faction? When a law takes from group A or individual A and gives it to group B or individual B, the law exceeds the state’s police power.

  249. kderosa,

    “The protection of individual rights is at the core of a state’s police power. State’s may prohibit wrongful private behavior. State’s may regulate rightful private behavior that may injure the rights of others. States have the power to protect the health, safety, and public morals of the populace.” Then business and individuals must be regulated to protect the greater rights of society as a whole.

    “States do not have the power to reach purely private ‘immoral’ acts.” Actually they do if that immoral act creates an injustice. Stealing is immoral. Stealing is unjust. Stealing is illegal. That it is done “in private” does not negate this fact. There are whole lists of crimes that are based on immoral and/or unethical behavior that their public or private nature is irrelevant to their commission. “State’s may regulate rightful private behavior that may injure the rights of others.” Followed by “State’s may prohibit wrongful private behavior.” Really? State’s may prohibit wrongful behavior unless, as by your reasoning (such as it is), they’re done in private? How very revealing of the flaw inherent in Libertarianism. Whether you like it or not, society is a cooperative and collective effort. A society of one is just some dude standing around talking to himself. To maintain a just society, the rights of the individual must be constrained if exercising that right creates a harmful action. Your argument narrows down to the law shouldn’t apply to you if you’re discrete in committing your crimes. That’s the facile logic and specious argument of a child or a sociopath.

    No. Taking what you say seriously is completely out of the question. Thanks for once again illustrating why.

  250. kderosa:

    well said. Gene H is not interested in good or bad laws, he wishes to institute a system of laws which would legalize theft of private property.

    Purely and simply he wants to legislate man into a mold of his choosing-the new American man just as surely as the Soviets tried to mold man into the new Soviet man.

    Objective law with a bias in property rights and individual rights will always prevent this. Therefore laws must be written to outlaw objectivity, which is precisely what he is proposing whether he understands it or not. I almost think he doesn’t understand what he is proposing and is so caught up in his belief of egalitarianism he cannot see the forest for the trees.

    Even cattle breeders understand that some Bulls are for stud and some are for the meat packer. I think Gene H’s idea on good laws and bad laws is resigned to the McDonald’s of ideas. That Bull (shit) shouldn’t be allowed to reproduce.

  251. Gene H:

    Take you for example, masturbation and sodomy are illegal in some states but they are private acts. So most rational people dont care.

    You keep digging, eventually you will see daylight.

  252. Roco,

    “he wishes to institute a system of laws which would legalize theft of private property”

    That’s a fine straw man you’ve built there. Too bad it has absolutely no basis in reality. Your property rights can become forfeit of you abuse your property to the detriment of others. That’s not theft. That’s how equity operates in civil and criminal courts. The flaw in your absolutist thinking is showing once again. Your property rights are not absolute if you use your property to harm others or through your negligence allow it to cause harm to others.

  253. Roco,

    I have seen the light. It’s shinning out of your ear from the candle on the other side of your head.

  254. kderosa,

    You should know better than to forget to precisely define what you mean by “private”. I’m sure that you consider a private act to be that which takes place on private property, involving only consenting adults. That would negate Gene H’s claim that stealing is included in your definition of a private act.

  255. By the way, laws against sodomy and masturbation fail the test as good laws and it has nothing to do with their private nature. They fail as good laws because they are not secular in origin but religious prohibitions in origin, they are unenforceable, they are contrary to what science tells us about human nature and they harm no one as long as they are consensual. I still would discourage you from trying either in public though. Public sodomy and masturbation are generally illegal for quite valid reasons.

  256. Gene H:

    “I have seen the light. It’s shinning out of your ear from the candle on the other side of your head.”

    I like it, very funny.

    But how do you know the candle is lit?

  257. @kd: were the state allowed the power to prohibit any purely private activity on the sole ground that a majority of the legislature deems it to be immoral,

    All laws are morality laws. The law against murder is a morality law. You may prefer to think of yourself as property, but then your claims of “property rights” are not based in anything but morality either. The distinction of a “private” activity, as Gene notes, means nothing. You cannot commit murder in private, or rape in private. Heck, most planned crimes are at least attempted to be done in privacy, to evade detection.

    All laws legislate morality; the only question is where do we draw the line on legislating morality? I think it is immoral for an employer to know they are endangering workers and withhold that information because it would increase their costs. Objectivists apparently think this is fine, and the workers will figure it out if enough of them get killed.

  258. Gene H:

    But how do you know it is a candle that is on the other side of my head? And not the light of my intellect?

  259. @GeneH/Buddha

    Then business and individuals must be regulated to protect the greater rights of society as a whole.

    Regulated as in to make regular. Reasonable regulations of liberty are permitted, though the federal Constitution only permits regulation of “commerce” which is more limited. Also, I never said that regulations weren’t permitted, that was only one of your strawmen positions. Now whether such regulation is prudent is another matter, but not a natural rights/constitutional one.

    Stealing causes a violation of another’s rights. So it is not merely a matter of private morals. Sodomy in the privacy of one’s home is an example of private morals and is not properly prohibited. (See Lawrence v. Texas) Sodomy in the public square is an example of public morals that couls be properly prohibited.

    That states have routinely criiminalized purely private moral acts, such as gambling, drug use, alcohol consumption, prostitution, doing busines on the sabbath and other activities that do not violate the rights of others doesn’t mean that such laws are right under Lockean political theory or don’t rample upon our retained rights, knucklehead. Government has exceeded its Constitutional restraints.

    States may regulate all wrongful behavior, private or public. Wrongful behavior is behavior that violates another’s rights. You really don’t know your Locke do you?

    Then you say this, just like Buddha would have (the mask continues to slip):

    Whether you like it or not, society is a cooperative and collective effort. A society of one is just some dude standing around talking to himself. To maintain a just society, the rights of the individual must be constrained if exercising that right creates a harmful action. Your argument narrows down to the law shouldn’t apply to you if you’re discrete in committing your crimes. That’s the facile logic and specious argument of a child or a sociopath.

    First, There is no society. There is just a collection of individuals.

    And check you out calling Locke’s reasoning “the facile logic and specious argument of a child or a sociopath.”

    The propriety of the laws made by the legislature is dictated by the rationale for yielding the lawmaking power to the government. “…Men, when they enter into Society, give up the Equality, Liberty, and Executive Power they had in the State of Nature, into the hands of the Society, to be so far disposed of by the Legislatuve, as the good of the Society shall require.” This “good of society,” however, is no open-ended grant of power simply to do good; it is defined and limited by the rights retained by the people when they surrender their powers of enforcement, and this is what makes it a genuine comon good or good for everyone, not merely a segment or faction of society. “[I]t being only with an intention in every one the better to preserve himself in his Liberty and Property; (For no rational Creature can be supposed to change his condition with an intention to be worse), the power of Society, or Legislative constituted by them, can never be suppos’d to extend farther than the common good.” And to secure this “common good,” the legislature “is obliged to secure every ones Property by providing against those three defects… that made the State of Nature so unsafe and uneasie.”

    Those three defects are 1. “the want of an establish’d settled, known Law, received and allowed by common consent to be the Standard of Right and Wrong, and the common measure to decide all the Controversies between them” (Sec. 124); 2. the want of “a known and indifferent judge, with Authority to detemine all differences according to established Law” (Sec. 125); and 3. the want of the “Power to back and support the Sentence when right, and to give it due execution” (Sec. 126).

    So according to Lockean political theory, then, becasue people form government to secure their rights of liberty and property more effectively than they can secure them in their own, the executive or police power must be limited to the advancement of the common good, which is accomplished by protecting those same retained rights. In this way, Lockean theory provides both a rationale and an important limit upon the powers of governent.

    The police power is the legitimate authority of states to regulate rightful and prohibit wrongful acts. As Hamilton expaalined in Federalist No. 17, “[t]he administartion of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a [national] jurisdiction.”

    natural rights define the boundary or space within which people are at liberty to do as they please provided their actions do not interfere with the rightful actions of others operating within their own boundaries or spaces. Just as it is proper to prohibit wrongful or rights violating conduct, proper police power regulations specify the manner in which persons may exercise their liberties so as to prevent them from accidentally interfering with the rights of others.

    I can go on, but I think you get the point. Actually, you probably don’t. but other do. That’s why I take you seriously GeneH/Buddha, it is just too easy to show how wrong your dopey theories are.

  260. Private = not public

    The state has the right to regulate what goes on in Public, even the morals of the community. Otherwise, if you aren’t infringing upon anyone else’s rights in the course of your private activity, then you have not surrendered these rights to Government to regulate/prohibit.

  261. @TonyC

    You are getting confused with all this morality talk. Just think of natural rights.

    The law against murder may be a morality law, but it’s also a violation of someone else’s natural rights.

    Also you are forgeting about liberty. Bothe liberty and property are part of naturl rights.

    There is a distinction as to private activity as Locke sets forth ans it is an important distinction.

    Murder in private or public, rape in private or public are all wrongful acts that a state may prohibit because you are violating the natural rights of anotyher citizen by the commission of these acts. Contrast this with private masturbation or Sodomy as Buddha points out which are only preoperly prohibited when done in public, but not in private becasue there are no rights being violated 9assuming there is consent).

    An employer injuring an employee is a violation of the employee’s rights. No one seriously believes otherwise, not even Objectivists.

  262. kderosa:

    “You really don’t know your Locke do you?”

    no he doesn’t and he says he knows Jefferson. But I don’t know how you can understand Jefferson without first understanding Locke.

    the problem is his public school education, he was taught in the vein of Rousseau and not Locke. I have tried on very many occasions to try and get him to understand he is a tool of the left. They have left him out on a limb with no safety net.

    I don’t know where you went to school but there is a good deal to be critical of in a public school education. These progressives have so brainwashed the masses that even the best of them believe that horseshit and write about utilitarian laws without thought to the consequences.

    we take a little from this code and something from that code, kinda combine them and take out what might not make sense. Then we say some sort of inKantation over them and there’s your law.

    But since we don’t have any standards due to our progressive education we cannot with any certainty say what makes sense and what doesn’t.

    It is actually kind of scary to think there are people like Gene H currently sitting in congress and making up laws in that manner. No wonder the country is such bad shape.

  263. @KD: I do not believe in “natural” rights, it is a philosophy I reject. There are no natural rights; the gazelle has no rights against the cheetah, or the sparrow against the hawk. All rights are a product of man’s mind and imagination, all rights are grounded in the threat of forceful retaliation by a group against an individual: A murder is not punished by the victim, it is punished by others.

    Rights are not a product of nature, are not enforced by nature, and are freely ignored by nature: The flood does not care if you deserve to drown. Any rights you call “natural” are false advertising and an appeal to inevitability (nature) that does not exist.

  264. kderosa:

    Jefferson said this:

    “The idea is quite unfounded that on entering into society we give up any natural rights”

  265. KD the entertainer….. Said

    Private = not public
    The state has the right to regulate what goes on in Public, even the morals of the community. Otherwise, if you aren’t infringing upon anyone else’s rights in the course of your private activity, then you have not surrendered these rights to Government to regulate/prohibit.

    I am sorry if you do not understand that if you shoot a bullet on your property and it lands on my property it is still private…..But laws are in place to deal with your type of behavior….I agree, if you want to fuck your sheep…by all means do it….They are your sheep and if you give Roco, Jstol gives you permission then so be it….But other than that it is still private property and not only have you committed some type of trespass but you have also committed a crime against nature called bestiality…Which still can be prosecuted in and of itself…..But you say government shouldn’t regulate private acts on private property….Hmm….get back to the pipe….

  266. Gene H.
    >I don’t take any extremists seriously

    That seems…extreme. Shouldn’t a compromiser compromise w/some extremists? Neville Chamberlain did in Munich, 1938.

  267. Mespo727272:

    we are not the same person. Aren’t you going to throw in some pithy comment from Balzac or Tolstoy?

    “Illusion is but the mirror reflecting our silent unfulfilled desires…”

  268. I also forgot you have and roco, jstol, et al have also gone and done and committed a conspiracy…..which in of itself prosecutable,,,,,,

  269. If you had actually read the letter, you’d know Jefferson also said that “every man is under the natural duty of contributing to the necessities of society, and this is all the law should enforce on him.” Jefferson also felt each successive generation was free to establish what those “necessities” might be within the bounds of natural law. This is what conservatives forget about Jefferson, i.e.,he understood the inextricable link between freedom and duty that separates freedom from licentiousness.

  270. Tony: “all rights are grounded in the threat of forceful retaliation by a group against an individual: A murder is not punished by the victim, it is punished by others.”

    Wrong.

    The system upon which our republic is founded is called the social contract. It is a term of art denoting the order of operation per the allocation of rights and power in forming society and government.

    Unlike what you suggest above, rights exist before the formation of a ‘threatening society.’ Rights existing in a state of nature, i.e. pre-society, constitute the source of power of the government to be.

    Rights confer power. By conferring power to society as man leaves nature and enters society, government is formed. That is the order of operations; whether you like it or not. The reason we have a Ninth Amendment and the reason Hamilton wrote what he did in Federalist 84 was to ensure that people like you didn’t re-write the order of operations making government far more powerful than it was ever meant to be.

  271. @AY, are you never not stupid? All wrongful acts that violate another’s property/liberty rights are properly regulated/prohibited. Rightful acts which are done in private that don’t do harm to others might be regulated but not prohibited. rightful acts which are done in public that do no harm to others may be regulated/prohibited if against community morals.

    So taking your example, if you fuck your neighbor’s sheep you may be prosecuted since you’ve violated your neighbor’s property rights. If you fuck your own or your neighbor’s sheep in the public square then you can be prosecuted as the Government has the right to regulate what goes on in public. However, if you fuck your own sheep in your house, under Lockean political theory you have not violated anyone’s rights and the Government should not have any power to prosecute you. But, we all know that most Government’s have usurped your rights in this area and have taken the power to prosecute people. That doesn’t make it right under Lockean political theory upon whihhc our system of Government is supposedly founded.

  272. kd:

    “Oh, look, Mespo’s come out to play again with his conspiracy theories still intact. That’s nice.”

    ******************
    One cannot conspire with one’s self.
    Your lack of logic notwithstanding, I am even less than impressed with your/Roco’s implicit attack on child pornography laws which certainly involve “private” viewing of children and whose exploitation was done by others and, in some cases, perpetrated years before the viewing by the current perpetrator. Tell me again how your crude construct that “The state has the right to regulate what goes on in Public, even the morals of the community. Otherwise, if you aren’t infringing upon anyone else’s rights in the course of your private activity, then you have not surrendered these rights to Government to regulate/prohibit.” applies? This ought to be good.

  273. kderosa,

    “First, There is no society. There is just a collection of individuals.”

    You lose with that statement right there. It’s a falsity that begs the question that your Objectivist fantasy about lone individuals is correct. An individual is a country of one. A society exists anywhere there is a group of people related to each other through persistent relations, shares territory and are subject to the same political authority and dominant cultural expectations. A group is a number of individuals assembled together or having some unifying relationship – like sharing a common body of laws. Not only do societies exist, they are groups and groups by nature are collective as a collective is nothing more than a number of persons or things considered as one group. Anywhere there is more than two people with sufficient cultural commonality, there is society.

    As far as Locke goes, what I’m saying goes perfectly to Locke’s statements. You’re the one who keeps insisting that your individual property rights trump the common good. Your rights are not absolute yet you seem to be stuck on the idea that your property rights are absolute. Protecting your rights from unjust infringement is not the same as removing your rights as punishment for abusing your rights and causing others to come to harm. They are flip sides of the same coin that is a social contract. The point I get is that you don’t understand Locke (or Rousseau). Your natural rights are balanced against the natural rights of others. Others that make up society and are just as valid as humans as you think you are. We are a democracy which means like it or not that the will and rights of others count. You give up absolute rights when you become part of a social contract. It should go without saying that you do not realize that commerce is a synonym for business. Congress can regulate business. If that interferes with your greed, too bad. The rest of what you say is drivel. If that was your idea of a cogent rebuttal, it’s just another example of why you shouldn’t be taken seriously.

    Signed,

    Santa

  274. Roco:

    “so Jefferson thought that successive generations could vote themselves into tyranny?”

    *****************************

    No. He assumed they weren’t idiots who would postulate this type of question or perform this type of self-immolation. Silly him.

  275. Stephen Grossman,

    Neville Chamberlain is an example of why extremists shouldn’t be taken seriously on issues of compromise. They’re ideologically and dogmatically driven liars when it suits their agenda.

  276. mespo:

    he also said this:

    “our rulers can have authority over such natural rights as we have submitted to them.”

    “Laws abridging the natural rights of the citizen, should be restrained by rigorous constructions within their narrowest limits.”

    “Bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect and to violate would be oppression.”

  277. @Gyges: Except I am talking about rights, they are an invention of man. A car is an invention of man, it may be made of natural substances but is not itself a product of nature, but of the mind of humans.

    I also reject the idea of transference on the grounds that it renders words meaningless; “natural” does not mean anything if absolutely everything is “natural” because it consists of natural atoms. So the fact that people and their minds are a product of nature does not mean the products of people and minds are also a product of nature; the state of “being a product of nature” is not automatically transferred. “Natural” things occur, in principle, without artifice. An apple is natural. A tool, created by a human or crow or dolphin, is not. Rights are an invention of man, a tool (albeit political) that provides benefits. They are an artificial construct.

  278. Mespo: “Tell me again how your crude construct that “The state has the right to regulate what goes on in Public, even the morals of the community. Otherwise, if you aren’t infringing upon anyone else’s rights in the course of your private activity, then you have not surrendered these rights to Government to regulate/prohibit.” applies? This ought to be good.”

    Not for nothing, but without a trespass, you’re talking about a duty of virtue as opposed to a duty of right.

    “All duties are either duties of right, that is, juridical duties (officia juris), or duties of virtue, that is, ethical duties (officia virtutis s. ethica). Juridical duties are such as may be promulgated by external legislation; ethical duties are those for which such legislation is not possible. The reason why the latter cannot be properly made the subject of external legislation is because they relate to an end or final purpose, which is itself, at the same time, embraced in these duties, and which it is a duty for the individual to have as such. But no external legislation can cause any one to adopt a particular intention, or to propose to himself a certain purpose; for this depends upon an internal condition or act of the mind itself. However, external actions conducive to such a mental condition may be commanded, without its being implied that the individual will of necessity make them an end to himself.”

    http://www.constitution.org/kant/ntrometa.htm

    A government has no legitimate power to promulgate duties of virtue as if they were duties of right.

  279. @Buddha/GeneH

    I’m going to ignore your nonsense about “society” since it is irrelevant (or as you might say irregardless) to any point in dispute in the interest of saving time and effort.

    You’re the one who keeps insisting that your individual property rights trump the common good.

    Wrong. I, or rather Locke, said people form government to secure their rights of liberty and property more effectively than they can secure them in their own. As such, the executive or police power must be limited to the advancement of the common good, which is accomplished by protecting those same retained rights. In this way, Lockean theory provides both a rationale and an important limit upon the powers of government.

    The “common good” is advanced by protecting citizens’ retained natural rights. There is no trumping going on.

    And where did I say anything about rights being absolute? Rights are not absolute. Your rights stop where another’s rights are infringed or violated.

    Protecting your rights from unjust infringement is not the same as removing your rights as punishment for abusing your rights and causing others to come to harm.

    You need to clarify this “thought.”

    It should go without saying that you do not realize that commerce is a synonym for business. Congress can regulate business. If that interferes with your greed, too bad.

    Actually it wasn’t, but let’s not get off-track. Why don’t you write a post on this idea and I’ll slap you around with the facts in that post.

  280. Tony,

    The word might be an invention of man, but I’m not sure that rights are.

    It seems to me that with all social animals is an arrangement that every member of the group has the ability to do certain things. In a group of primates, there’s a leader. They get to be the leader as long as they beat the challengers to their status. Implicate in that arrangement is that every non-alpha has the ability to challenge that alpha.

    Just because we’re the only ones that have the ability to express (or for that matter conceptualize) these sorts of arrangements, doesn’t mean we’re the only ones that have them.

  281. mespo727272:

    I wasnt the one that brought it up you were, and knowing your position on issues I just figured you are chomping at the bit to make every man a slave in your socialist utopia.

  282. kderosa,

    You’re going to ignore those facts about society because they destroy the (false) premise of your arguments. As for the rest of your comment, it’s still drivel. I’ve never said that the power of government was not restrained by rights, quite the contrary, much of my discussion with Tony has been over that very subject of what the boundaries are in formulating what makes a law good or bad. What I said was that rights are not absolute under a social contract. Some are going to be impinged upon to allow for the pursuit of justice and as required by mutual protection. If you want to talk about the government exceeding their grasp in the name of mutual protection, why not wait until the next column on the TSA and/or the Patriot Act. Here, the discussion is limited to frameworks for legal analysis despite yours and Grossman’s efforts to make it a preaching forum for Objectivism.

    Signed,

    Leo D.

  283. Well now Mespo is bringing out the child molesters. Typical. I think you need a better MO.

    Mespo, a child does not have the right of consent. So therefore his rights are violated by the person who has taken the picture. He cannot assent to the picture being taken. Especially if his picture is going to be sold, he cannot enter into a contract.

  284. “I just figured you are chomping at the bit to make every man a slave in your socialist utopia.”

    Mespo,

    It’s funny because after years of reading your opinions I never even thought of you as being on the Left. Maybe I lack the X Ray vision that others here seem to have gotten from their Tom Swift Decoder Rings.

  285. Roco,

    If you understood the Constitution, you’d know that both of their ideas and ideals are incorporated into the document.

  286. @Mespo,

    Wikipedia has a good page on the Debate Regarding Child Pornograph Lawsy where the private/public issues are brought up in the case law and whether there is a harm or trespass being committed.

    Also, a person can have conspiracy theories without conspiring with another. It appears that your desire to rush snarky comments interferes with your limited powers of thought. You should probably just give up the former and concentrate on the latter for all our benefit.

  287. “So taking your example, if you fuck your neighbor’s sheep you may be prosecuted since you’ve violated your neighbor’s property rights.”

    How have you violated your neighbors property rights? What if the sheep strayed onto your pasture? Since the sheep is not harmed is there any violation of property?

    And wouldnt trespass be the violation?

  288. @Buddha

    You’re going to ignore those facts about society because they destroy the (false) premise of your arguments.

    There is nothing in “society” as you’ve defined it that affects anything I’ve stated. But, if that’s how you’re going to save faec in this debate, by all means rely on that thin reed of yours, rather than enage in your usual circular arguments that stream forth after you realize you’ve painted yourself into a corner of illogic. Much like your correlation equals causation argument. And your fascism equals whatever-you-finally-defined-it-to-be argument.

  289. Revealing evasion. The point, my dear Roco/derosa, is that the child’s rights were not violated by the viewer by any stretch of the imagination yet we punish him–rightfully, I think — for a private act. Your construct falls apart here since, by your definition, his perversion is a protected from government intervention. I find your views awfully radical, oh conservative one.

  290. @Gyges: I was careful to include a few other animals that engage in the manufacture of non-natural products; such as tools. I do not believe your example of primates challenging an alpha male constitute a “right,” any more than a cheetah has a “right” to chase down a gazelle. Young primates challenge the alpha male because they are horny and he is monopolizing the horniness relief resources.

    A “right” is an artificially constructed protection of some sort. The right of free speech protects us from retaliation by the government for our speech (theoretically speaking). A “right” is a privilege you get even if you do not personally have the muscle or firepower to just force your action upon others; the rights are (in principle) enforced by the strength of the entire society.

    But in primate societies the group does not punish the alpha male for murdering a young buck rival (which happens) or an infant (which happens) or for just beating up the Omega male for no reason (which happens). The Alpha male does not engage in these “crimes” because it is his right, he does it because he has the muscle to do it and feels like it, and afterward nobody denies his desire to mate or eat first, there is no punishment.

    Animals can be kind, they feel empathy and engage in consolation over losses and unfair treatment. But Rights (and law in general) require a level of abstraction and foresight that is apparently beyond the smart animals. At least as far as we can tell, so far, Rights are a uniquely human invention. We didn’t just invent the word, it may require words to invent Rights.

  291. Edsel Ford,

    “There is nothing in ‘society’ as you’ve defined it that affects anything I’ve stated.”

    Except for your denial of its existence as a predicate for what you stated.

  292. Gene H:

    “Roco,

    If you understood the Constitution, you’d know that both of their ideas and ideals are incorporated into the document.”

    Ooh, you really dont have a clue do you. That was a pretty stupid statement to make. Locke did have great influence. You merely think/wish Rousseau had influence. It would then jibe with your world/philosophical view.

    Sorry dude, you dont get to make shit up to suit your view of the world.

  293. Mespo727272:

    There is no way you are not a socialist. It emanates from your pudenda (Latin not anatomy).

  294. kd:

    “Wikipedia has a good page on the Debate Regarding Child Pornograph Lawsy where the private/public issues are brought up in the case law and whether there is a harm or trespass being committed.”

    *********************

    While a one page summary written by, perhaps, a bright undergraduate, likely satisfies your curiosity on the topic, I prefer a little more depth. Here’s something you can look at to view the issues. The law however is clear:

    http://supreme.justia.com/us/495/103/case.html

  295. Mespo727272:

    “Revealing evasion. The point, my dear Roco/derosa, is that the child’s rights were not violated by the viewer by any stretch of the imagination yet we punish him–rightfully, I think — for a private act. Your construct falls apart here since, by your definition, his perversion is a protected from government intervention. I find your views awfully radical, oh conservative one.”

    the childs rights were violated by having a picture taken of him. The viewer is the cause of the pictures being taken. If there were no child molesters there would be no need for child porn. So most definitely the childs rights have been violated by the viewer. The child has not given consent to be viewed by anyone at any time.

    Therefor I think the viewer of child pornography is subject to the same penalties as the photographer.

    I dont believe I ever said a child pornographer was protected, but nice try at putting words in my mouth.

    Here is what I said:

    “Mespo, a child does not have the right of consent. So therefore his rights are violated by the person who has taken the picture. He cannot assent to the picture being taken. Especially if his picture is going to be sold, he cannot enter into a contract.”

    So lets see, the child’s rights are violated. That means there is action that can be taken in law. So I would like to know how you come up with me thinking a pervert should be protected?

    You truly are an idiot. Stick to quoting old dead white guys. Leave the heavy thinking to someone else.

  296. Roco,

    You mean make shit up like you are trying to do right now? I wouldn’t dream of infringing upon your specialty, Roco.

    Rousseau’s ideas are found all over the Declaration of Independence and the Constitution. I’ll give you a couple of examples.

    In “Declaration of the Rights of Man and the Citizen”, Rousseau defines the law as “the expression of the general will. All citizens have the right to contribute personally, or through their representatives, to its formation. It must be the same for all, whether it protects or punishes. All citizens, being equal in its eyes, are equally admissible to all public dignities, positions, and employments, according to their capacities, and without any other distinction than that of their virtues and their talents.” This is reflected in the language of the Declaration (“all men are created equal”), the Preamble of the Constitution (“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”) and the 14th Amendment (All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”).

    Rousseau’s 1762 treatise “The Social Contract” was a veritable blueprint for a democratic representative republic, which coincidentally, is the form of government established by the Constitution.

    Rousseau’s philosophy had a direct impact on the Founders. Jefferson and his writings (including the Declaration) were deeply influenced by Rousseau. Here’s a lovely summary of some more examples of their common thinking: http://almostchosenpeople.wordpress.com/2010/01/07/jefferson-and-rousseau-on-democracy/#more-327

    Like it or not, Rousseau’s thoughts left an indelible impression on the Founders and their fingerprints all over the Declaration and Constitution. However, don’t let that stop you from “[making] shit up to suit your view of the world.”

  297. @Mespo, oh look at you and your fancy lawyer’s tricks. Is that all you have in your quiver? The article I cited referred to plenty of court cases on the child pornography issue.

    Also your case citation is not dispositive on the question at issue — whather child pornography laws which criminilize purely private acts in which no harm has been done to another violate any retained natural rights of the viwer and thus ought not to be prohibited by the state under Lockean political theory. As far as we know the case was decided wrongly.

  298. mespo:

    “he was convicted of violating a state statute prohibiting any person from possessing or viewing any material or performance showing a minor who is not his child or ward in a state of nudity unless (a) the material or performance is presented for a bona fide purpose by or to a person having a proper interest therein, or (b) the possessor knows that the minor’s parents or guardian has consented in writing to such photographing or use of the minor.”

    Which kinda jibes with the child does not have the ability to consent as I stated above.

  299. GeneH:

    Sorry, but your position is not holding water.

    From Book II Chapter 5:

    “Whoever wishes to preserve his own life at the expense of others must give his life for them when it is necessary. Now, as citizen, no man is judge any longer of the dange to which the law requires him to expose himself, and when the prince [sovereign] says to him: “It is expedient for the state that you should die”, then he should die, because it is only on such terms that he has lived in security as long as he has and also because his life is no longer the bounty of nature but a gift he has received conditionally from the state.”

    Compare that to:

    “that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

    Personally I dont see much Rosseau in that. In fact I dont see any.

  300. Roco,

    I’m pretty sure I don’t care about your evaluation of what holds water because like all your evaluations it is faulty. All your statement shows is that you’ve never actually read Rousseau. “[D]eriving their just power from the consent of the governed”? Is a major theme in “The Social Compact”. It is, in fact, the central argument of the book.

  301. Roco
    >I have tried on very many occasions to try and get him to understand he is a tool of the left.

    Left is merely an ideology, ie, social and political philosophy split from more basic issues. Philosophy is the basic cause of our ideas. And most Americans are anti-ideological, Dewey-eyed Pragmatists who compartmentalize facts from each other as an intellectual habit. So they value a changing chaos of contradictory ideas. Few leftists are Marxist ideologists. They dip into Marx or Marcuse or even Locke as their emotions guide them in any concrete situation. Not even Obama is an ideologist, tho he is a hard leftist Pragmatist. See Rand’s “For The New Intellectual” in her book by that name.

  302. Gene H:

    since you don’t think in abstractions, I will point out the difference between Jefferson and our Constitution and Rousseau.

    Rousseau – “his life is no longer the bounty of nature but a gift he has received conditionally from the state.”

    Jefferson – ““that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”

    You see the difference? It is quite stark. Life from the state life or from their Creator. Since the DOI gives the Constitution its power which comes from the people how can the government give the people their life?

    Rousseau therefore does not believe in property rights which the founders did. But it is quite apparent to all but the most partisan hack, Rousseau had little or no influence in our founding. And quite understandable why you, as a Marxist/Socialist/Fascist/Collectivist would want to believe that fallacy. Rousseau gives license for your supreme state.

  303. Gene H:

    if this guy doesn’t understand by now that Rousseau’s argument that governments attain their right to exist by “consent of the governed,” and further that the American Revolution has this notion as one of its bedrock principles, I suspect he was educated in another country. Maybe another planet. He’s hung up on General Will and social equality which he deplores and blinds him to all else good with the learned Frenchman.

  304. Roco,

    “That was a pretty stupid statement to make. Locke did have great influence. You merely think/wish Rousseau had influence. It would then jibe with your world/philosophical view.

    Sorry dude, you dont get to make shit up to suit your view of the world.”

    What I said was “If you understood the Constitution, you’d know that both of their ideas and ideals are incorporated into the document.” Rousseau’s are not the only ideas found in the Constitution and the Declaration and I stipulated that fact with that previous statement. Not only does the Constitution contain the influences of Rousseau and Locke, but Hobbes and Paine as well. You wanted to claim Rousseau had no influence, which is either 1) a deliberate lie or 2) a reflection of your staggering ignorance. But like I said, don’t let facts stop you from “[making] shit up to suit your view of the world.” The only person making something up here is you. Rousseau was easily as great an influence on the Constitution as Locke. Disbelieve it all you like. I am unconcerned with your willful ignorance. If you want to wallow in your factual inaccuracies and intellectual laziness some more, be my guest.

  305. Gene H:

    I am reading the Social Contract right now as a matter of fact.

    Also Rousseau was trying to expand on Locke which is what you see. Locke did not get expanded upon but dumped on as you can clearly see above.

  306. Gene H.
    >“The Social Contract”.

    Ie, a society of intellectual dependents who worship Consensus as an impossible substitute for independent judgment. Its product is staleness and stagnation. Its an application of Kantian nihilism in politics. Everybody compromises with everybody else’s compromises. Its worse than religious traditionalism which provides some continuity and absolutes however irrational. Plato and Aristotle recognized the anarchistic/democratic path to tyranny. Locke and Rand, of course, are the reason-based, individual rights basic alternative.

    Don’t you have anything intelligent to say? I’m getting bored with amusing myself with your pretentious pseudo-education. Say one profound thing, however absurd. Just one, please.

  307. mespo:

    well for that matter the Athenian Constitution influenced our Constitution and so did many others.

    Rousseau was also influenced by the Athenian Constitution and its ideas about democracy.

    But the main idea of our founding is decidedly not based on Rousseau.

  308. Of course, Locke came up with the consent of the free and equal citizens first and there’s no question that the founders relied on Locke. So merely pointing out that that concept is in the founding documents doesn’t prove that Rousseau was being referenced. So that’s a fail.

  309. Roco,

    Unfortunately for you, reading and comprehension are two different skills.

    **************

    Stephen Grossman,

    I’m sorry but I must inform you that intellectual and educational assessments of an Objectivist are just as meaningful to me as those same assessments from a Fundamentalists Muslim or a child. I am quite unconcerned about what you think of me. However, this is a free country and a free Internet. If you find this place so devoid of intellectual stimulation, you are quite free to seek your entertainment elsewhere. Have I mentioned that you have a most poetically fit surname for an Objectivist?

    Neither of you have added anything of value to this conversation.

  310. Stephen Grossman:

    “Don’t you have anything intelligent to say? I’m getting bored with amusing myself with your pretentious pseudo-education. Say one profound thing, however absurd. Just one, please.”

    You figured that out in 2 days? Wow you are good.

  311. Gene H:

    How do you respond to kderosa above? Since Rousseau was definitely trying to expand or explain Locke it would be natural for Locke to be in Rousseau’s writings. Which you then mistakenly believe to be an influence on our founding.

  312. Gene H
    >Rousseau was easily as great an influence on the Constitution as Locke.

    This is the content of an anti-hierarchical, ie, anti-conceptual mind. There are no basics and non-basics for this kind of cognitive processing. Every fact is cognitively equal to every other fact, in ignorance or evasion of the perception-based hierarchy of reasoning. Doctors learn anatomy prior to surgery. Carpenters learn to hammer a nail prior to building a house. Egalitarian epistemology is destructive. Rousseau was basically a collectivist and Locke basically an individualist, whatever they said in a non-basic context. Our Constitution is basically an individualist document whatever contradictions in non-basic contexts. Our Founders were pop philosophers who unsystematically accepted ideas from Locke, etc. as they thought the ideas supported the historical peak of individualism in the Enlightenment. They were not profound, systematic philosophers. We should be grateful for their unsystematic individualism. It was the best they could do. And they did very well, indeed. Ayn Rand was born to late to stop the almost immediate attack on Constitutional individualism by the influence from Kant’s social subjectivism.

  313. Stephen Grossman: “[The Social Contract] Ie, a society of intellectual dependents who worship Consensus as an impossible substitute for independent judgment.”

    Really? Is that what Locke says? Or is that a claim by you sans reason to support said claim?

    Stephen Grossman: “Its product is staleness and stagnation. Its an application of Kantian nihilism in politics.”

    Kant preceded the social contract? What was he 200 years old when he died?

    Stephen Grossman: Everybody compromises with everybody else’s compromises.

    Kant is all about compromise? On what planet and in what parallel universe?

    Stephen Grossman: “[The social contract is] worse than religious traditionalism which provides some continuity and absolutes however irrational. Plato and Aristotle recognized the anarchistic/democratic path to tyranny. Locke and Rand, of course, are the reason-based, individual rights basic alternative.”

    Seeing that Locke was the social contractarian that Jefferson chose to plagiarize in the Declaration, you’re now contradicting yourself.

    In this post, you truly sound like a ‘modern man.’

  314. And let’s not forget that “we the people” and “consent of the governed” is entirely a legal fiction. The was not unanimous consent by any stretch of the imagination. Acquiescence is not consent.

  315. “A Discourse on the Origin of Inequality” (1754), “A Discourse on Political Economy” (1755) and “The Social Contract” (1762) by Jean Jacques Rousseau are all widely taught at reputable schools as primary influential sources that the Founders drew from in drafting the Declaration of Independence and the Constitution. “The Social Contract” is part of the reading assignments on the current syllabus and reading assignments for the University of Virginia’s course “The Rule of Law: Controlling Government; Seminar in Contemporary Legal Thought”.

    http://faculty.virginia.edu/jnmoore/rol/rol-syllabus.html

    As to Rousseau expanding upon Locke, so what? Locke’s “Two Treatises of Government” (1689) was expanding upon Hobbes “Leviathan” (1651). Philosophy is like the study of science; it is an accretion of knowledge. If you want to play the “who came first” children’s game, you’re going to end up with everything in Western philosophy being started by either Aristotle, Plato or Socrates. Just because Rousseau expands on Locke’s ideas is not proof that Rousseau wasn’t an influence on the Founders. As a contemporaneous writer, Rousseau would have represented the then vanguard on thinking concerning social contracts and therefor was probably more influential with the Founders than either Locke or Hobbes. To say Rousseau had no influence because he was expanding upon ideas found in the works of Locke (and Hobbes) is like saying Einstein had no impact on the formation of quantum mechanics because he expanded upon the ideas of Newton or that Heisenberg had no impact on quantum mechanics because he built on the work of Einstein. It’s specious reasoning and factually untrue. Not only does the Declaration show Rousseau’s influence on Jefferson, so do Jefferson’s letters to John Adams. I respond “Make up all the history you like. We’ll be glad to correct your faulty educations and logic.” By the way, displaying your factual historical and philosophical ignorance is not furthering the conversation concerning the topic of this thread.

  316. I have subscribed to Dr. Leary’s thinking for way too long. We did experiments in and out of class. About half way through one semester we had a couple of people that experimented with way to much acid. I see that Kay DeRosa is here. I see that Roco, whom I used to know as Rothchild O’Hittman and Stevie Grossman, who is going by Steve Grossman.

    These guys did way, way too much acid. I thought that they ended up in clinics. I see that they are back out on the streets. Please show them some indulgences as they do not think like normal or even rational people. The last I had heard about them is they were staring at rocks. They apparently are not be properly supervised by the States staff. I will see what I can do to make sure that they do not harass you good folks anymore.

  317. Grossman,

    Do you have something to offer other than pimping for Ayn Rand? So far I have yet to see it. You have brought absolutely zero substance to this conversation and continue to do so.

  318. I wouldn’t consider Rousseau the greatest influence on Jefferson and Madison but I consider his works influential on the men of his times and the Founders. Jefferson never mentioned Rousseau in his writings but certain concepts are clearly of Rousseau. Madison famously criticized Rousseau’s notion of “perpetual peace” in 1792 but he was clearly impressed with the man’s ideas. “Had Rousseau lived to see the rapid progress of reason and reformation, which the present day exhibits, the philanthropy which dictated his project would find a rich enjoyment in the scene before him,” Madison wrote. I would say the Founders were more influenced by classic Greek and Roman notions of republicanism, Locke’s Theory of Natural Law, Bracton’s “De Legibus Et Consuetudinibus Angliæ,” Luther’s “On Secular Authority,” “The Works of Francis Bacon,” Coke’s “The Petition of Right,” and Montesquieu’s “Spirit of the Laws,” but Rousseau’s place among those other influences is beyond question.

  319. Hey Steve,

    When are you coming back over? I miss our time together. Do you still have Adolph’s SS tattooed to your forehead?

  320. Dear Roco,

    We are you going to pay the support that you owe for your child? When you pay us what you owe we can get off of public assistance. Please pay your support, the children need it.

  321. So then to the extent that Rousseau had some unique contributions to political philosophy, where are those uniquely Rousseau concepts found in the founding documents. Specifically.

  322. “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”

    I’ll let you find the document.

    HInt: Thomas Jefferson wrote it.

  323. Actually, it’s Rousseau, kderosa. Locke argued that government’s legitimacy comes from the citizens’ delegation to the government of their right of self-defense (mutual protection). Rousseau argued that the whole of the rule of law came from “[e]ach of us puts his person and all his power in common under the supreme direction of the general will; and in a body we receive each member as an indivisible part of the whole” and as I noted earlier “Rousseau defines the law as ‘the expression of the general will. All citizens have the right to contribute personally, or through their representatives, to its formation. It must be the same for all, whether it protects or punishes. All citizens, being equal in its eyes, are equally admissible to all public dignities, positions, and employments, according to their capacities, and without any other distinction than that of their virtues and their talents.'” Locke’s assertion of consent is much narrower than Rousseau’s or Jefferson’s. Locke only applies consent as it applies to the abdication of defense to the state. Rousseau (and Jefferson) apply all of the rule of law to the consent of the governed.

  324. Mother of My Child:

    how old is he/she now? The last I heard you were getting an abortion, I even gave you money to get one. I guess you spent it on crack and the Chippendales.

    I think I need to take custody of the child, they will grow up with liberal bull shit since you obviously hang out with Gene H and Mespo727272.

    I want my child to be able to do more than quote old dead white guys and use google. He/she is probably good at math and science since my other children are very good at those subjects. I forced them to take degrees in the sciences so their brains would have a chance. You see what a liberal arts education has done to Mespo727272 and Gene H or Bubbha Green as we like to call him.

    Please send the child over as soon as possible, if he/she is over 7 dont bother. Your liberal blather has screwed them and it is too late.

  325. Gene H:

    Rousseau is a collectivist, it ekes off the pages of his work. When i first started reading I was pleasantly surprised but by the time you get to book II it is pretty clear where he is coming from.

  326. It has been very peaceful since you abandoned us, I do not have to worry about your temper and thrashing the house and hitting our other children anymore. Are you still with that man you left us for? My brother is still waiting for you to come back to town. He stated that he was going to kick your ass and I told him he better be careful because while you were down you would try and lick his. We both laughed.

    I did turn all of your pipes over to the police. I heard that they are looking for you too, this is fine to. I did talk with the States assistant attorney, they hinted that if you did not pay your support this month that they would seek a felony Support warrant. I do not understand what that really means except that you would go to prison. I hope that is not true, I would hate to tell our child that you are a felon. That is fine to, because I would tell her that you would probably beat it. But you do not beat me anymore so, I am fine with that.

    She is now 9 years of age. She looks like her grandmother looked when she was 9. She is growing up very fine without your help, but the state say that they will make you pay one way or the other. Please give my condolences to Steve, I am certain you beat him.

  327. “There’s only one law that from its very nature needs
    unanimous consent, namely the social compact; for civil
    association is the most voluntary of all acts. Every man is
    born free and his own master, so no-one on any pretext—any
    pretext—can make any man a subject without his consent.”

    ~Rousseau, (Du contrat social ou Principes du droit politique) (1762)

    Men all being naturally free, equal, and independent,
    no-one can be deprived of this freedom etc. and subjected to
    the political power of someone else, without his own consent.
    The only way anyone can strip off his natural liberty and
    clothe himself in the bonds of civil society is for him to
    agree with other men to unite into a community, so as to
    live together comfortably, safely, and peaceably, in a secure
    enjoyment of their properties and a greater security against
    outsiders. Any number of men can do this, because it does
    no harm to the freedom of the rest; they are left with the
    liberty of the state of nature, which they had all along. When
    any number of men have in this way consented to make one
    community or government, that immediately incorporates
    them, turns them into a single body politic in which the
    majority have a right to act on behalf of the rest and to
    bind them by its decisions.

    ~Locke, Second Treatise of Government (1690)

    Where the two primarily differ is that Hobbes believed in the natural rights of the individual regardless of social construct. Rousseau believed that rights flowed only from society as no rights existed in a state of nature. Locke felt the individual was not subservient to the General Will. Rousseau disagreed.

  328. Mother of My Child:

    I see you are resorting to your old tricks again. The police already know you are a lying crack whore. At this point I think we need to do some DNA testing, there have been more cocks in you than KFC.

    If it turns out that I am the father, I will be happy to pay what I owe but will file for custody. By the way a PI has been tailing you for about 6 weeks and has pictures of you blowing the States Attorney. I showed him the pictures a few weeks ago, he was very eager to hear my case after that.

    As far as your no good brother goes, that is on the to do list. Frankie Beans from Boston is a friend if you know what I mean.

    I am glad to hear little Karla is doing well. Hopefully she will not follow in her mothers footsteps and learns that personal responsibility and hard work are virtues and that collecting a government check to spend on crack and Chippendales while denying breakfast, lunch and dinner to your child is counter productive.

  329. I accept mespo’s further refinement without reservation or modification. I should have known you’d have the better summary. Anyone with a Cicero avatar must be a student of the classics. ;)

  330. Roco,

    Your subscriptions to the “American Nazi Party”, “Instinct Magazine” and your Videos “Blue Boy and Twink” came to my house again. Do you want them or should I put them in the recycle file?

  331. Roco,

    I see you are resorting to your old tricks again, yes isn’t that how we met? It is true I have sold my crack, so it would be true. I guess you are a man whore, right? Oh Roco, they did run DNA from your Pedophile conviction. They are certain it is you. Yes, yes I love KFC.

    Oh you are the father and yes you will pay. I am pleased to tell you that I am getting married to the states Attorney and he said he would pig screw you. I can’t wait to see how you squeal.

    My brother likes Boston Baked Beans are they the same as Frankie Beans? You know what I mean?

    Now you admit that you are aware of the child’s name. She carrys my last name. I too hope she does not follow in my footsteps, I want better for her. Don’t you? I hope she does not have to go on government assistance as well. If you would pay your support we would not have any problems.

    I do not think that anyone I know, knew when Chippendales was going to be in town except you, why is that?

    Oh we do eat breakfast, lunch and dinner unlike when you were here spending the money I made on your buddies and the one guy you called your Mandrake.

  332. Gene H:

    Oops, and thanks for the vote of confidence but I meant to say “Locke believed in the natural rights etc.” Hobbes belived that men were naturally savages and in a continual state of warfare in which there “is no place for industry, because the fruit thereof is uncertain: and consequently no culture of the earth; no navigation, nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving and removing such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.”

    Men form societies to rid themselves of this condition and make themselves part of the common weal. To that end, persons subject themselves to the sovereign for protection and accept any abuses of power that will inevitably occur. Hobbes also believed that such an orderly society provided the best chance for freedom and that the sovereign as the embodiment of the commonwealth acually fostered, rather than restrained, freedom. He was decidely paternalistic in approach but with aspirations that seemed on the mark.

  333. I will gladly accept a correction from a source of normally reliable information, mespo. Mistakes and typos happen. It’s only bad information if the correction isn’t made. So I accept your corrected summary without reservation or modification. I may not be cheap, but I am easy or in the words of that immortal 80’s Canadian power trio Triumph, “I don’t ask much, the truth will do just fine.”

  334. It is unlikely that Rousseau’s notion of popular sovereignty applies to the U.S. Federal state because the conditions of the general will do not obtain in a large diverse population. The people’s will cannot possibly have the authority rousseau attributed to it in the absence of the genuine consent of all. And we did not have the consent of all.

    But again, as I pointed out earlier this whole business of we the people and popular sovereignty is all a political fiction. What part of Rouseau’s philosophy made it into a part of the founding documents that has a real effect on our rights and governmental power?

  335. Total agreement is not a requirement for democracy, kderosa. Also, this sentence? “It is unlikely that Rousseau’s notion of popular sovereignty applies to the U.S. Federal state because the conditions of the general will do not obtain in a large diverse population.” Aside from the grammatical error is complete gibberish. Scale is a non-issue. As to Rousseau’s ideas having a real effect on our rights and government? They are undeniable but it is a separate question as to how those rights and effects have been eroded over time (primarily by narrow special interests with undue influence). You are straying into the question of “what’s wrong with the government”. The topic of this thread is diagnostic processes for evaluating law. You can’t fix what’s broken unless you can diagnose the problem first. The topic of what’s wrong with the government will come up on this blog again. It always does. It’s just not the topic of this thread.

  336. “The Supream Power cannot take from any Man any part of his Property without his own consent. For the preservation of Property being the end of Government, and that which Men enter Society, it necessarily supposes and requires, that the People should have Property, without which they must be suppos’d to lose that, by entering Society, which was the end for which they entered into it, too gross an absurdity for any Man to own … Hence it is a mistake to think the Supreme of Legislative power of any Commonwealth, can do what it will, and dispose of the Estates of the Subject arbitrarily, or take part of them at pleasure.” Locke, Two Treatises, 406-7

    Now does that sound like Locke thought that the people should accept any abuses of power that would inevitably occur by surrendering sovereign rights and entering civil society?

  337. No. It sounds like Locke is against the arbitrary abuse of power. Having a right and having an absolute right are not the same thing. Property rights are not absolute no matter how many times you insist that they are. They are prime, they should be protected and not infringed lightly, but they are not absolute.

  338. @GeneH/Buddha, just because you don’t understand it doesn’t make it gibberish. And there is no grammatical error, so perhaps you are misreading it. And, yes, the “general will” depends on the consent of all. It is a matter of scale, it is a matter of consent. If political authority is will-based, as Rousseau and others have posited, how can there be a will of the people without the consent of all people.

    And how would you know what always comes up on this blog since you only showed up a short time ago and by your own admission lurked for only a short time before that? See what happens when you tell lies, you start losing track of your lies, GeneH. I mean Buddha.

  339. KD,

    I just got home and I am at a loss. Show me where you did not state that property right were not absolute.

  340. I have been reading this crap that you and your crew have been spewing out and this is the first time I have had the time to post….You take one position and then like Endora you switch sides….You talk about an illusion….You sticking to one topic without subterfuging which means to use:

    1. Deceit used in order to achieve one’s goal.
    2. A statement or action resorted to in order to deceive.

    You bare slicker than Cheney’s Oil….

  341. kderosa,

    No, it being gibberish makes it gibberish. As to your demands for perfect consensus, sorry, but that’s not the reality of democracy and it shows your confusion about legitimacy versus form. As to my knowledge of what comes up on this blog, I’ve been reading it to catch up on the topics discussed and get a feel for what kind of articles I should be posting. It seems like malfunction is a common and recurring topic. Are you always this paranoid, Pete Rose? As to “showing you where you said property rights are absolute”? Your instance that property rights are inviolate is a good indication that you think it’s an absolute right. Either the government can infringe upon your property rights in certain circumstances by operation of law (including regulation of use) or it can’t. There is no middle ground to that question.

    Signed,

    The Batman

  342. All you two idiots need to do is scroll up a bit and see where I stated just the opposite

    @Buddha, too clever by half you are. Your mistakes will mount as your lies persist. Also, you apparently don’t understand Rousseau’s views on general will and consent of the governed.

  343. kderosa,

    Whatever you want to think, Louis XVI. I understand Rousseau on general will and legitimacy just fine and apparently better than you. That the general will of the people at the founding of this country was the form of democracy (and democracy does not require perfect consensus, just majority consensus) and that form is legitimate because it came about by the general will of those to be governed is a distinction apparently lost on you. I’ll say it simply so maybe you’ll understand. Legitimacy requires the rule of law expressing the general will of the people. This applies to any and every form of government from constitutional democratic representative republics to constitutional monarchies. This is why totalitarian dictatorships or oligarchical theocracies are not considered legitimate forms of government because they are top down power structures where the rule of law is not derived from the general will of the people but rather from the will of the one or the few at the top. Form and legitimacy are two discrete issues.

    Signed,

    Elrond, Lord of Rivendell

  344. @Buddha,

    We’re talking about where the power to govern comes from. If it comes from the consent of the governed, how can you govern those who have not consented to be governed? How can you have legitimate rule over those who have not consented to be governed. Your authority only comes from their consent.

    Genuine consent is an engagement of the will. It must involve a deliberate and effective communication of an intent by a person to change his status of his rights and obligations.

    In fact Rousseau’s concept of popular sovereignty included more than mere consent, it required active participation of those governed (by the people). So those that don’t vote (participate) and don’t consent cannot have conferred authority according to Rouseau. This is especially true if sovereignty is inalienable as it is in the U.S.

    Further, where is the supreme sovereign in our divided form of government? Where is the authority to which there is no appeal?

  345. I have always viewed the Hobbes-Locke-Rousseau progression as sort of a social contract continuum with Hobbes representing the more authoritarian version, Locke the pure individualist, and Rousseau more the collectivist. Each have points to make and, as we know, Hobbes served as the foil of the American Revolution being the model Tory; Locke (along with Bacon) was Jefferson’s inspiration; and Rousseau was the intellectual fountainhead of the American Revolution’s progeny, the French Revolution.

  346. Here’s a wonderful little debate on Hobbes’ vs. Locke’s views on the nature of man as argued by Messers. Adams and Jefferson with some fellow named Franklin serving as moderator:

  347. @Mespo: Every man is born free and his own master,

    I disagree with Rousseau (and Locke), this is false on the face of it. Every man is born an infant, helpless and entirely dependent on his mother (or someone), incapable of anything. They haven’t even discovered they have limbs yet, they can’t go anywhere or do anything and left on their own would die in a week.

    Every man is born utterly dependent on others to save the life he has been given, to feed him, to wash him, to teach him, and to protect him from the elements, from predators, from diseases, from poisons, and from other people. This dependency lasts for at least five years for children raised in non-technological hunter-gatherer societies, and in the modern world, for 15 to 25 years.

    Some debt for the resources expended during that dependency, while involuntary, is real. In a technological society with necessary divisions of labor, some of the cost of protection and food and teaching are provided by society, and the bills for those services must be paid.

    So what is the fair price for such? Here is a hypothetical: Say a stranger hiking sees you have fallen from a height; you are unconscious and bleeding. He applies first aid and interrupts his hike to carry you to his car and transport you to a hospital, where a doctor performs surgery to stop internal bleeding and save your life. What do you owe the heroic stranger, the doctor, and the owners of the hospital?

    I do not believe, as Objectivists seem to think, that you owe them whatever they choose to charge; you could not agree to such a transaction (but any failure to agree would have ended your life). I do not believe the alternative, that since you did not agree to anything that you can consider their work an act of charity and owe them nothing.

    What I do believe is fair recompense for such an involuntary “transaction” is the cost of their time, service, and materials. I do not believe anybody deserves to either earn a profit or suffer a loss over your brush with death.

    It is hypotheticals like this that compel me to subscribe to the at-cost paradigm for what I regard as involuntary but necessary services, like fire protection, food inspection, health care, military protection, police protection, courts, and so on. I also believe that the people necessary to staff such services cannot be conscripted, people are free and they must voluntarily choose to work there. So their salaries are determined by the market, high enough to keep the supply of staffers steady, whether they are doctors or janitors.

    However, expenses are never certain and demand fluctuates in any organization, including charities, so the only entity truly capable of operating an at-cost organization is the government. That is fine because there is a certain amount of synergy in that conclusion; since we also want government to be in control of some of these at-cost organizations that have life-altering decision making powers (like the police, courts, military, and hospitals), so we can enforce a doctrine of public accountability, transparency and unbiased application.

    The point of that hypothetical is that an infant is like the fallen climber, incapable of surviving without the aid of others. Like the hiking stranger and hospital and surgeon that had nothing to do with the fall, the rest of us had nothing to do with the birth of the infant, but here it is among us, and we have the social responsibility of preserving its life. Being an advanced technological society, we have hired specialists to address those responsibilities, and they are staffing the infrastructure around us. They not only benefit the infant but all of us, and it is impossible to compute the value of that: The criminals in jail for assaulting somebody else are not assaulting me; so how do I compute the value of something that did not happen?

    To be fair, we pay for the public services and staff with taxes. The infant will not be paying taxes in any significant amount for decades, so when he does, he is obligated to repay the cost of his free societal ride by paying for the free societal ride of the next generation.

    My larger point is that I do not need to begin from a “born free” state of nature to achieve a viable social contract. Even from the “productivity is everything” point of view (which I reject), on average and in the long run it is always better for productivity to save a life than to let it expire. The “born free” state is false, the “born utterly dependent” state is reality, and I see no reason to reason from anything but reality.

  348. Tony C’s comment is incredibly thought provoking. Unfortunately I will heading to the Homestead in a few minutes for the VA State Bar Association Convention. Will consider it and see if I can reply from that venue. Regards to all.

  349. “And let’s not forget that “we the people” and “consent of the governed” is entirely a legal fiction. The was not unanimous consent by any stretch of the imagination. Acquiescence is not consent.”

    “It” makes another one of his “brilliant”. A slashing rejoinders, akin to his proving President Obama a “liar” for misspeaking his daughters age. When in doubt try to obfuscate, is his mantra, as he vainly attempts to make up for his deficiency in reasoning ability and tendency to prevaricate.

  350. Mike Spindell, why don’t you go learn something on the topic and get back to us. Edmund Morgan’s Inventing the People:The Rise of Popular Sovereignty in England and America is a good place to start and it’s available at Amazon. And, you eally need to learn how to characterize people’s arguments accurately when commenting.

  351. kderosa,

    You’re either going to start addressing me by my name or you’re simply going to be ignored. Your paranoia is your problem but I’m done feeding into your fantasy. If you want to think I’m someone else, be my guest, but you are going to start addressing me properly if you want any kind of response.

  352. I am addressing you properly as will be revealed in due course.

    It’s not my fault you adopted a nasty anonymous online persona without thinking through the ramifications adequately and have now come to realize the error in your ways now that you are required to post using your real name.

    The more you lie the worse it’s going to be when the day of reckoning inevitably comes. You’ve already slipped up a few times and it’s only a matter of time before slip up so bad that you cannot deny your ruse any longer.

  353. KD,

    Please stay on the subject at hand…Even if and so what….You are here and apparently you adopted a new name but not a new persona….try it sometime….

  354. @Buddha/GeneH

    You should heed your own words yesterday:

    surely the words of Sir Walter Scott apply.

    “Oh what a tangled web we weave,
    When first we practise to deceive!”

    @AY, et to quoque?

  355. I’ve read through this entire debate fascinated by the knowledge I’m accruing. Gene, Mespo, Bob and Tony are providing me with knowledge I
    didn’t have, lacking a classical education due to the dissipation of my youth.
    Our Trolls are providing a service acting as ignorant foils, so that lessons can be taught. The trolls may attack the admission of my admitted ignorance, as a lack of ability to discern the correctness of the argumentation put forth. However, while I haven’t read the classic philosophers I am blessed with excellent reading skills and logic. We are seeing a seminar in philosophical and constitutional history taught to the simple and the wicked, who lack the skills to respond in kind, but have provided the foreground for the teaching to succeed. Bravo!

  356. kderosa,

    I do not care if you think I’m Buddha Is Laughing or if you think I’m St. John the Baptist. If you want a response going forward, you will use my proper name or you will be ignored.

  357. Also, in case you haven’t noticed, Howington old boy, your geneH persona is starting to undergo a perceptible personality change back to your Buddha persona in your various comments. Merely eliminating the worst of your personal attacks does not a difference make. You might want to look into that. Just from friendly advice.

  358. kderosa,

    When someone is addressed, even improperly, it usually denotes an expected response. That’s how conversations work; address/response/address/response. If you don’t want a response either continue to address me improperly (like the paranoid you apparently are) or don’t address me at all.

  359. Here’s how it works, Howington.

    I will address you as I see fit. I owe you no deference or respect. You have earned neither.

    You will respond as you see fit. When you think you have a point to make you will likely respond as is your custom regardless (or irregardless as you used to say when you were Buddha) of how I address you. When you have no substantiev response, you will obfuscate and engage in your typical diversionary tactics as is also your custom. In any event by calling you by your real name, to the extent you don’t respond, merely reduces the amount of your nonsense I have to deal with if you stick to your promise. It’s win-win for me.

  360. Here’s how it works, kderosa.

    If you address me by my proper name, I’ll respond as I see fit. If you don’t address me properly, I’m going to treat it as if you’re talking to your imaginary friend. If you don’t address me at all, I can address any inaccuracies and falsehoods in your posts without addressing you at all.

    Enjoy your “win”.

  361. As I said, you will do as you see fit, Buddha/GeneH.

    This might be a good time to have Budha temporarily reappear to deny that GeneH and Buddha are one in the same. Of course, that’s a mighty risky maneuver given the likelihood that you’ll eventually have to own up the ruse. I’m waiting with bated breath to see how you play this.

    In any event, now that I know how to keep you on your leash, I’ll be sure to take advantage of it.

  362. Tony,

    I think we need to define rights: I’m going to suggest this one from the Stamphord Encyclopedia of Philosophy: “Rights are entitlements (not) to perform certain actions, or (not) to be in certain states; or entitlements that others (not) perform certain actions or (not) be in certain states.” If you don’t like that definition, we can work on hammering out another one.

    Now, the primate in my example has the ability to either challenge the alpha or not. The fact that at any time for any reason the alpha has the ability to come smash his head in doesn’t mean that the other primate can’t challenge the alpha. If it did, gays don’t have any rights in the U.S. because gay people can’t get married, and felons have none because they can’t buy guns.

    I realize that Chimps don’t sit around discussing the difference between natural* and legal rights. However that doesn’t mean that they don’t have a structure to their society that gives some members the ability to perform certain actions.

    To help explain, let’s look at something completely different. Let’s look at a trout rising to a fly. To get to that fly, the trout has to adjust to several factors, current, the difference between where the fly appears to be relative to the trout and where it actually is (being as the fly is above the water, and this fish in the water), that sort of thing. Now the words I used to describe those factors, and indeed even the very idea that things can be described, don’t exist to the trout. He makes the necessary changes to his behavior based on instinct. Those changes are natural, the way we describe them is not.

    Now, there is that word “entitlements.” I’ll freely admit, this is the weakest part of my argument, because animal societies have no laws, they just have innate structures. To me those structures are a close enough analog that we can say that each member of the society is entitled to things. Not everyone gets the same entitlements, and most of the time it’s an incredibly inequitable distribution, but everybody gets something.

    Thus, my claim that groups of animals are naturally organized in such a way that their members have the right to do or not do certain things within that structure. In some flocks of birds each member effects the direction the flock goes, same with schools of fish. Granted I can’t think of an example pf negative rights existing in nature, but they’re just one type among many.

    *This whole thing discussion is based on your equivocating two different uses of the word “natural.” The “natural rights” in question have nothing to do with the biosphere. They’re the outgrowth of a thought experiment: what would some one have the ability to do with no society to stop him? Those abilities are natural rights, the ones that require other people (and societies permission) are not (see Bob, I was paying attention). It’s a term that’s based on an uncommon use of the word nature, but words have different uses and that doesn’t mean one of them is right or wrong..

  363. Now for a little arithmetic. For those that do not think that professionals would not take a medium-pay job as a civil servant if they could make more money as a private citizen; let me point at our all volunteer military.

    The top rate for an army doctor (which includes neurosurgeons) was $134K in 2008. To become an Army doctor, one requires a medical school education, which they will provide free, in return for an enlistment commitment of 7 years post residency, and 7 years of reserve duty after that. Medical school is 4 years and the average value of that is $150K; that is followed by 2 years of residency, then 7 years of service. During medical school, the student is paid as an officer; which is about $38K, and that is about $18K more than the typical income of a medical student. During Residency, the graduate earns about $69K.

    Up until the time he becomes an MD, the student received about $262K more than the typical medical student. Divided by his seven year commitment (and the fact that he pays on loan interest) that works out to about $40K per year, on top of his $134K salary and benefits. Since the Army has a fine supply of doctors (and some military doctors are considered the world experts in their specialty) I do not see why we couldn’t use a similar program to recruit civilian doctors, for about $175K per year each, plus benefits, to serve the public in an at-cost institution.

    I am not saying we should militarize medicine; I am just pointing to a proof by existence that it is possible, people will volunteer, and for some that want to become doctors but cannot begin to afford it, we would probably be providing a path to help them reach a potential (and benefit to society) that would have otherwise been lost.

    Just like the military, if the doctor leaves service after their commitment, they can enter private practice and earn whatever the market will bear. Or choose to continue in public service: Many doctors choose to serve their entire career in the military, and I am sure we would see the same thing in our civilian version of it.

  364. @TonyC, yes, what could possibly go wrong with a system that has changed the incentives so drastically? Are you certain that your new potential pool of doctors would be the same as the existing pool?

  365. Oh, Genie, yo hoo.

    I spotted another of your slip ups.

    Raff,

    Maybe. The guy would have gotten a look at by the Secret Service once they got a call irregardless.

    That would be the same non-standard usage that good old Buddha favors.

  366. @Gyges: Rights are entitlements (not) to perform certain actions, or (not) to be in certain states; or entitlements that others (not) perform certain actions or (not) be in certain states.

    I think the trouble with this definition is the word “entitlement.” An entitlement is actually defined as a right, which makes this definition circular.

    I prefer the definition of Right that calls it that which is due by just claim, legal guarantee, or moral principle.

    Chimpanzees do not have a sense of a just claim, or a legal guarantee, or moral principle. This is why my personal sense of a right is something that defends an individual from being strong-armed or subjugated by the powerful, and the defense has to be provided by a group on the grounds of principle. Although chimpanzees do commit murder and mayhem upon their own tribe members, they do not seem to engage in police actions against their own tribal members, or gang up to prevent an alpha male from exercising his will. They have a social structure and a culture, but IMO it does not meet the minimal functionality requirements for them to have “rights” within that structure.

  367. kderosa,

    So what? Many people use non-standard English in conversations, but if you’re so desperate in your paranoid fantasy that you are reviewing posts on other threads for grammar as if that would be proof? I’ll have to admit that makes me pity you just a bit. I’m starting to suspect that if Buddha Is Laughing weren’t a real (other) person, you’d have to invent him.

    Also, it’s Gene, not Genie. I don’t live in a bottle and I don’t grant wishes. I will give you partial credit though for at least attempting to get it right.

  368. @TonyC

    Rights should be thought of liberties and freedoms to believe or act in cerain ways. They are not positive claims on government or on others. It is not possible to enumerate all the rights we have retained, i.e., not surrendered to government upon entering civil society. Natural rights are synonymous with liberties as is exemplified in the official letter to Congress by the memebrs of the Constitutional Convention: “[i]ndividuals entering into society must give up a share of liberty to preserve the rest … It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved.” See Madison Notes on debates 627. Also, see Eliot, Debates 2:201-2 (speech of Oliver Wolcott to the Connecticut ratifying convention, Friday, January 18, 1788)

  369. Of course, most educated people know not to use “irregardless” becasue it is improper usage. It’s just coincidental, I suppose, that “Buddha’ and “GeneH” has the same grammatical tics. But, I’m just cataloging all these similarities between “Buddha” and “GeneH,” you can go about your business of deception and ignore me.

    Also, I called you Genie on purpose.

  370. What utility is there in deconstructing a literalistic interpretation of the social contract?

    Why not analyze the theories of Hobbes by first disproving the existence of sea monsters?

  371. kderosa,

    Cataloging? You are a sad little man. Do you have a Nixonian enemies list too? Do you often feel like you are persecuted? I suspect the answer to both of those questions is yes.

    “It is not possible to enumerate all the rights we have retained, i.e., not surrendered to government upon entering civil society.”

    This would not change that it is possible to enumerate the rights we have surrendered to government upon entering civil society and to what degree. Just because real numbers are an infinite set does not mean that useful calculations cannot be made without using all of them. I don’t think you considered how logically ridiculous invoking an infinity can be. Human experiences and relationships are a limited set. Since all human/civil rights must be constrained by the limits of human experience, they are a subset. As a subset, that list of rights has outer boundary limitations. People may disagree on criteria for quantification, but that does not preclude quantification.

  372. Bob,

    “What utility is there in deconstructing a literalistic interpretation of the social contract?” To the end of analyzing what makes for good law or bad law in the socially beneficial senses of the term, none whatsoever. However, some people will do anything to avoid that discussion.

  373. @KD: They are not positive claims on government or on others.

    Perhaps in your broken and logically inconsistent philosophy you can come up with some ad hoc argument du jour to justify your selfishness, but this is a false statement in my logically self-consistent philosophy.

  374. Howington,

    Isn’t the sad little man the one who accumulated a shameful record under one online persona and then had to disavow that persona when anonymity was no longer possible? Why are you so embarrassed of your “Buddha is Laughing” alter ego?

    Onto the substantive issues …

    Of course you can enumerate the rights surrendered — they are the rights enumerated in the Constitution. However, it is a fool’s errand to enumerate the rights you retained. And the problem with trying to enumerate all your retained rights in a Constitution is that you can never capture them all. Make any list of liberty rights that you care to and I can add a dozen more. So, any explcit protection of these enumerated liberties carries with it the inevitable danger that the list will be taken as evidence that the people surrendered up to the general government any liberty that is not on the list.

    That’s why Madison gave us the ninth amendment and not unsurpirsingly it has been erased from our jurisprudence.

    Thus, even though you can approximately quantify all the retained rights, it is foolish to attempt do so. Too bad you didn’t understand that twist.

  375. @TonyC, our Constitution contains an enumeration of negative rights (i.e., liberties) we have given to the Federal Government, we have retained all the rest. Show me where in the Constitution there is a positive claim on government or others. (I belive the 13th amendment contains a negative right directed to the people, not the Government.)

  376. k:

    be a dear and quit making old Howington cranky. He is Buddha and there is definitive proof. Just move on, it really doesnt matter.

    Personally I dont understand why you should want to out him. I imagine there are a good number of people who would want to tar and feather him if they had the chance. I shouldnt want that on my conscience.

    I would just leave it be and continue to make the points you are making. They are, for the most part, very good and some are brilliant.

  377. @KD: Aw sweetie, you don’t understand. I was making a philosophical argument from logic and accepted definition, which conflicts with your ideological definition; I was not making a concrete Constitutional argument. See, when adults talk, they understand that distinction, and know to answer in kind; their refutation will be from logic; not a demand for a concrete example. Perhaps some day when you are older, you will understand.

  378. kderosa,

    “[E]ven though you can approximately quantify all the retained rights, it is foolish to attempt do so.”

    Foolish by your reckoning? I think I’ll pass on your opinion.

    Right to have privacy
    Right to live, exist
    Right to have a family
    To work for anyone
    To own property
    Free Speech
    Social Security
    Safety from violence
    Protection by law
    Equality of both males and females; women’s rights
    To a fair trial
    To be innocent until proven guilty
    To be a citizen of a country
    The right to express his or her sexual orientation
    To keep one’s own gender identity and rights to have or not to have a surgery
    To vote
    To seek asylum if a country treats you badly
    To think freely
    To believe and practice the religion a person wants
    To peacefully protest (speak against) a government or group
    Health care (medical care)
    Education
    Eat/drink
    To communicate
    Not be forced into marriage
    To pursue happiness
    Freedom of assembly
    Freedom to do what a person wishes if it does not harm others (even if other people think it is bad)

    Feel free to add your dozen now.

    All of these human rights are retained to one degree or another. That some of those rights interfere with your political agenda are an ancillary matter. Your understanding of the 9th Amendment is insufficient. The 9th Amendment does not confer positive rights. “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The 9th Amendment has not been eliminated from jurisprudence but rather expounded upon in a manner consistent with Madison’s intent in including it as a vitiation of the legal maxim “expressio unius est exclusio alterius” (the express mention of one thing excludes all others). It was a concern at the onset that including a Bill of Rights would exclude any right not specifically mentioned. The wording of the 9th Amendment assures that this does not happen. It is not an amendment that confers positive rights. It is an amendment that applies to Constitutional interpretation. “[T]he ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law. The ninth amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution.” Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991). This understanding of the 9th Amendment is precisely in line with the intent of Madison when he said when discussing the construction of the amendment before the House of Representatives in 1789. “It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.” Given that Gibson is still cited today as the proper interpretation and application of the 9th Amendment, your claims that the 9th has “been erased from our jurisprudence” are spurious at best. Far from being erased, the 9th Amendment as been rather strictly upheld.

  379. kderosa,

    If by karmic retribution you mean perpetually setting yourself to be proved wrong and illustrating why you should not be taken seriously, then I submit that you have an unusual definition of fun unless you are a masochist.

  380. k:

    Old Howington is due for a little knicker twist. I see it coming, the wind is gathering the grains of sand and the dark cloud approaches on the horizon.

    Buddhinton ask not for whom the bell tolls, it tolls for the.

    Did I actually write Buddhington, silly me, I meant Howington. I get mixed up.

  381. Please let us get back on subject and topic…Leave the personal barrages out…I was learning a lot…and Byron…even from you…

  382. @GeneH you fancy yourself a legal scholar just like Buddha used to. Isn’t that special.

    You missed a few million retained rights, listed quite a few rights that were delegated and not retained, and improperly listed some positive rights which weren’t considered natual rights at all by the founders. That’s 0 for 3, not that I’m counting.

    I see you copy from Wikipedia about as impressively as Buddha did as well.

    So tell me, if the ninth amendment retained its original meaning, how do you ecplain footnote 4 of Carolene Products? This approach limits protection solely to those retained rights that happen to be enumerated. And then what about Griswold which extended protection to unenumerated liberties (the right to privacy) but only for a few that the Court deemed to be “fundamental.” Only Casey brought the ninth back to some degree of respectability.

  383. Howington, I see you appear to have made quite a few enemies is that why you abandoned your old persona? And look at good old AY trying to run cover for his new friend, I mean old friend. It’s cute.

  384. The out-of-context replies to my comments on the Social Contract are sad testimony to the conceptual disintegration taught by the dominant Progressivism of US schools. (Its oozing into the UK and France, too). This conceptual disintegration becomes formalized into a doctrine in universities which provide brain-cracking rationalizations for complexity-worship. But complexity is merely a stage in reasoning and worthless until integrated into a concept, principle or fundamental. Newton didnt stare mindlessly at stars, planets, and records of past observations, measurements and experiments. He didn’t compartmentalize. He didnt obsess with nuances of nuances ad infinitum. He didnt rest content with formal descriptions of regularities. He conceptually organized these complexities into causes and contextual essences. Thats how he discovered universal gravity. Knowledge outside of perception-based rational system is worthless. One may as well count blades of grass instead of conceptualizing them into a lawn.

    Modern culture is lost in the Many without the One. Religion imagines a One with no Many. We must return to the Greek respect for the One in the Many. Some of the scholarship here on Social Contract is greater in quantity than mine. But its mostly worthless because its lost in the Many.

    America was created as BASICALLY an individualist society regardless of any collectivist influences seeped thru the Founders unsystematic thinking. Eg, consent of the governed is an end for Social Contract but a mere means for America’s original, individual rights politics. Does anyone here want to maintain that the Founders would have accepted the rejection of individual rights merely because the governed consented?

  385. Tony C
    >accepted definition, which conflicts with your ideological definition;

    Youre rationalizing intellectual submission to society. Definitions are contextual, relative to observed similarites and differences in a context. The widest fact in a context is the contextually defining fact regardless of social acceptance or rejection. For more on definition, see Rand’s Intro To _Objectivist Epistemology_. When man is defined as a rational animal, a specific politics ,individual rights, follows. When defined as a social animal, another politics ,collectivism. follows. Nazism defines man as a racial animal, Marx, an economic class animal. Nazis and Marxists and religionists merely fight over which gang of thugs collects the sacrifice of the individual.

  386. Gene H….
    I’ve worked with people who are mentally ill for many many years now, irregardless of any other lessons learned the most important by far is never ever ever try to argue with one’s paranoid thoughts.

  387. Mike Spindell
    >Calling Rand a hack writer is not ad hominem, it is merely an informed critical description of her literary skills.

    Informed? I looked for the alleged information but didnt find any.
    Please repost this alleged information.

    >You’ve never once answered criticism of her ideas with anything but vain hopes, magical thinking and attempts to change the subject.

    Personal attacks are not criticism and Ive not read anything here except personal attacks. You bags of selfless trash know your depraved attack on man’s life has been refuted. You should join Allen Ginsberg and howl at your moral emptiness.
    Oh, youre doing that here in the guise of legal criticism. Well, plenty of Ph.Ds ran the Nazi death camps. The head of the German Bar Assn was Hitler’s ruler of occupied Poland, responsible for maybe 3M murders. See Leonard Peikoff’s _Ominous Parallels_ on how German liberals created the nihilist culture that vomited up the Nazis.

  388. Words have definitions; and you call that “submission?” I call it language. A word stands for an idea, and this is how we convey ideas, by using these tokens of meaning. Anybody that is making up their own definitions or decrying standard definitions, like you, is purposely trying to reduce the efficacy of language.

    Contrary to your childish expectations, a sign of true intelligence is the ability to speak and write to be clearly understood; you are obviously not smart enough to grasp that and bother trying to make yourself understood, or you are trying and are incompetent, or you are so insecure that you feel a need to puff up your speech and obfuscate your meaning. Any of those mental states makes you worthy of my pity.

  389. Stephen Grossman: “The out-of-context replies to my comments on the Social Contract are sad testimony to the conceptual disintegration taught by the dominant Progressivism of US schools. (Its oozing into the UK and France, too).”

    You sound like…

    Only, unlike Dennis Hopper, you’re as full of shit as a Christmas goose.

  390. kderosa:

    you are beating him like a red headed step child. Stop, it is too painful to watch.

    I liked him more when he was all puffed up and full of himself, fighting for pragmatism, soical justice and centralized control of markets.

    Regards,

    Dick Head

  391. Tony,

    Well like I said, that was the weak point in my argument (that and my lack of proof-reading). I guess the question is: are morals unique constructs, or are they transcriptions of innate behaviors? I think the explanation that best fits our knowledge of ourselves and other species is that we built upon a foundation that was already there. As opposed to the sudden and radical shift that morals being a entirely human creation would be.

    Of course at some point in time one little thing suddenly shifted to using oxygen instead of dying when exposed to it, so anything’s possible.

    Also, I am biased by my philosophical resistance to granting homo sapiens any sort of “special place” in the grand scheme of life on earth.

  392. Tony C
    >the regulation, social safety net, unemployment insurance and other regulations that produced the wonderful results you will now attribute to “capitalism?”

    And just exactly how does aiming a gun at a businessman’s head to force him to obey bureaucrats (with their long history of producing prosperity) and stealing his investment money produce material wealth? Perhaps youre a Marxist and think that man’s mind is irrelevant to his survival, that skyscrapers and factories and computers are the product of glandular secretions of his headless body…

  393. kderosa,

    If I missed a few million, you should have no trouble coming up with a dozen.

    If you’re objection is that I’m a lazy typist, I am completely unconcerned. I’ve got the ability to copy and paste. Look out! I’ll use it again!

    If you’re so concerned about Carolene Products, I’m equally unconcerned that you’re upset because the court applied a lower rational relationship standard to regulation of commerce. Regulation of commerce is a Constitutionally reserved power of Congress and as such is not subject to a higher level of strict scrutiny because such regulation on its face does not violate the terms of the Constitution (by the terms of Art. I, sec. 8). Nor does regulation of commerce attempt to distort or rig the political process or discriminate against minorities all of which would call the higher level of scrutiny into play.

    I would expect a Libertarian to be upset by this on purely ideological ground, however, Carolene Products does not limit protection solely to those right enumerated in practice. What it does is bolster the 14th Amendment and creates conditions so that if a law is passed that does on its face violate a Constitutionally protected right (as some would argue that anti-gay marriage legislation violates the right of free association and equal protection in the attempt to discriminate against minorities), then in examining the Constitutionality of that law, a higher standard of scrutiny applies. It provides more protection to unenumerated rights, not less. If you’ve still got a problem with the regulation of business, your problem rests squarely in Art. I, sec. 8. When combined with the holding in Griswold, Carolene Products provides quite a bit of protection for unenumerated rights.

    On Griswold v. Connecticut, I have no issue with how that case was decided as it applies to analysis of unenumerated rights. It’s one of the few times I disagreed with Hugo Black. When looking at an unenumerated right, it makes sense to distinguish between those that are closer to enumerated rights (in the penumbra) and those that are not in determining if an unenumerated rights is fundamental. The Court’s logic in defining a right to privacy was sound.

    Planned Parenthood v. Casey? Your statement is opinion that is too unclear and subjective to offer much comment on. Casey was decided primarily on the 14th Amendment issues (not the 9th) and did not address privacy in the same manner as Griswold. In fact, it barely mentions privacy at all. They’re related cases but only tangentially in that Casey did not explicitly overturn either the fundamental holding of Roe v. Wade (which was based on the right to privacy found by the Griswold court). If your support of the case is based on it being (wrongly) perceived by those in the pro-life movement as a (marginal) victory, then your support is entirely ideological, but your legal correlations are tenuous and weak at best. This case really doesn’t impact the 9th Amendment or its function as an interpretive guideline directly.

    What seems to upset you is that laws that impact unenumerated rights, if they are prime facie unconstitutional, discriminatory or seek to rig the political system, are subject to a higher standard of scrutiny than rights specifically enumerated by the Constitution. Being that the Constitution itself protects and defines enumerated rights, it is only logical that unenumerated rights benefit from the application of a higher standard of judicial review when laws are passed that affect them and they are closely related to (within the penumbra of) an enumerated right. The cases you name don’t harm unenumerated rights. They help protect them. If you don’t want them protected, you should be against the 9th Amendment, because those cases enhance the 9th and its intended purpose as Madison drafted it. Just because you can read law doesn’t guarantee that you understand it properly. You’ve just throughly demonstrated that you don’t understand the law properly by completely misreading three cases. You really shouldn’t wonder that people who do know what they are talking about don’t take you seriously.

  394. In re: Griswold, the reasoning by both the plurality and the dissent was wrong. Penumbras implies the constitution confers rights while the dissent completely ignored rule of construction as set forth within the Ninth amendment. Per Goldberg’s concurrence, it was a re-hash of the reasoning by the plurality.

  395. AY:

    you are a moron, kderosa is not Byron. But I understand Byron thinks quite highly of you. Bdaman told me.

    Just so you know kderosa is not Byron, nor is Byron Stephen Grossman nor Noway nor Roco.

    You see him here
    you see him there
    that damned old Byron
    he is everywhere

    It is like people obsessing over the Gene H/Buddha nexus, it is quite funny to think someone like Gene H is remotely related to Buddha let alone being Buddha. I remember Buddha he is nothing like Gene H. Gene H is a pussy cat compared to Buddha and quite a bit smarter. Gene H is really very interesting while Buddha was an insufferable boar and mean as hell. So I for one am quite delighted to see Buddha gone and Gene H now posting. I say good riddance to bad rubbish and welcome to Gene H.

    If Buddha ever comes back, I hope he learns a thing or 2 about civility from Gene H. Gene H is the quintessential man for all seasons. He can speak with authority on a number of different subjects at some depth. Very impressive. I for one look forward to reading his posts, they provide profound insight into the law and the philosophy behind the law.

  396. Bob,

    I disagree. I don’t see penumbras as indicating that rights derive from the Constitution but rather that there is a close (or not) nexus of commonality between an unenumerated right and an enumerated right. I can see how one could rationally read it that way though. Thus the old story repeats itself and reasonable minds differ.

  397. Gene,

    The plurality treated privacy as a direct object created by the penumbras; watch the language…

    “The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U. S. 497, 367 U. S. 516-522 (dissenting opinion). Various guarantees CREATE zones of privacy.”

    There but for the grace of a sovereign of nine goes my right of privacy?

    As if.

  398. Gene H
    >Regulation of commerce is a Constitutionally reserved power of Congress

    18th century regulation was not control but making equal among the states so that a state’s laws didn’t harm commerce among the states. Even so, its a law with horrifying potential for totalitarian control. We need an amendment protecting the right of property, production and trade and the right to the pursuit and enjoyment of profit. And restricting laws to man, ie, excluding brute animals and the environment from protection. Even more we need a rational philosophy of politics, not ones based on emotion, consensus or faith. Fortunately we have Ayn Rand and the lack of intellectual competition to her philosophy.

  399. I dont know Mr. Grossman seems pretty informed to me.

    “Purpose of the Commerce Clause.—
    The journals of the Convention and the public discussions of the period offer no conclusive answer to this question; but it appears that under a form of expression sufficiently general to give Congress power at all times to prevent burdensome, conflicting or discriminating State legislation, the Convention had prominently in mind the regulation of foreign commerce by the passage of a navigation act and the imposition of a tariff; while, so far as concerned interstate commerce, nothing more was immediately intended than to enable Congress to prevent the imposition of duties by particular States upon articles imported from or through other States.’

    Interstate commerce in the eighteenth century was simple in its relations. The business of each State was its own.”

  400. @Gyges: I think the explanation that best fits our knowledge of ourselves and other species is that we built upon a foundation that was already there. As opposed to the sudden and radical shift that morals being a entirely human creation would be.

    I think both are true. We built on a foundation, but nobody else has a house but us! Although we have been making stone tools for 2.5M years, to my best understanding the modern human mind appeared about 60,000 years ago. What is unique about the modern human mind, and is distinct from other animals (including chimps, also prolific tool makers), is

    1) generalizing and respecification,
    2) recursion. (which may be related to the first).

    You can think of the first as a “metaphorical” ability; the metaphor is the generalization, applying that to your specific situation is the respecification (making the general specific). I tell you “Life is like walking a road, at the end the trip was about who you walked with, and who you met along the way,” and you understand there is no actual road — instead you are prompted to think about the important people in your life, and those memorable characters you have met in your life. You can take a generalized metaphorical thing, and make it specific to you, even if it is not literal.

    The second ability, recursion, is our ability to solve problems by breaking them down into smaller problems, that get broken down into smaller problems, that get broken down into smaller problems, until somewhere in that descent we find a lot of very tiny little problems we can solve. Animals can solve problems, but no animals will invent the airplane, or even build the Parthenon.

    Also, I am biased by my philosophical resistance to granting homo sapiens any sort of “special place” in the grand scheme of life on earth.

    Our only “special place in the grand scheme of life” is our extermination of it!

    We aren’t special in the grand scheme of things; we are an accident of evolution that turned us into the ultimate predator, with the ultimate tool: foresight. It doesn’t make us any more special than a cheetah or a brontosaur or a great white shark, we are just another example of an extreme development.

    But our adaptation, whatever little twist or mutation it might have been, gave us infinite foresight. We can imagine the future a million years from now; or the world a billion years ago. Animals cannot. They have reason, that is not unique to us; but they do not have endless reason, they cannot follow a chain of logic that produces calculus, or even just an infinite set of counting integers.

    We are unique in that respect, and in my opinion, that is what is necessary to have morals and rights: Extremely generalized rules of fairness, that we can uniquely respecify to judge specific circumstances, and say, “That action was unfair.”

  401. @GeneH

    Let’s see: the right to wear a hat, the right to get up when one pleases, the right to go to bed when one pleases, the riught to scratch one’s nose when it itches, the right to scratch one;s nose even when it doesn’t itch, the right to eat steak when one has a taste for it, the right to take a sip of Coke when one is thirtsy … you hopefully get the point. As I said , a fool’s errand.

    I don’t object to your typos, I have to many of my own. Proofreading is for the weak. What I object to is your copying and pasting of thoughts you aparently have little understanding about, which we shall examine presently.

    Carolene Products represents the modern theory of constitutional rights that by 1941 applied to both state and federal restrictions on liberty. The theory goes like this: adopt a loose conception of necessity and presume all acts of legislatures to be valid, except when an enumerated right listed in the Bill of Rights is infringed (or when legislation affects the political process or cerain minorities), in which event the Court applies a strict conception of necessity and puts the burden on legislatures to show that their actions were both necessary and proper. Subsequent cases made the presumption of constituionality almost irrebuttable. (See for eg, Williamson v Lee Optical). Any restriction on liberty will be upheld under this standard if there is a hypothetical reason why a “legislature might have concluded” that the restriction was necessary–unless a “fundamental” enumerated right is at issue, in which case few statutes will withstand “strict scrutiny” of both means and ends that will then be applied. Thus, Carolene Products represents a reversal of Constitutional presumptions; fundamental rights would be protected, but other liberties would be left to the merrcy of legislative majorities.

    So Carolene Products basically did away with the ninth amendment’s guarantee of our retained unenumerated rights, that much is clear. This was done so that progressive legislation could be enacted. Obviously you love this legislation, but it was accomplished by trampling on our unenumerated rights guaranteed by the ninth amendment. So you’re wrong about that.

    With respect to regulating coomerce, the Court did not simply expand the scope of the Commerce clause, which it did, but what it really did was to uphold various federal enactments as necessary and proper means to achieve the legislative objective of regulating interstate commerce. This expansive reading of the N&P clause was facilitated by adopting a presumption of Constitutinality in favor of Congressional judgment. So you’re wrong about that.

    Now moving on to Griswold, Griswold expanded Carolene Products footnote four jurisprudence by protecting certain judicially favored unenumerated rights which could be used to shift the burden to the government to justify its restrictions on liberty. Big deal, as Bob, esq notes, the niinth amenment already protected all our unenumerated rights, not just some rights favored by our unelected Supreme Court.

    Casey showed that the Rehnquist court was still committed to the Carolene Products/Griswold jurisprudence. However, Casey’s significance is that it relied upon the ninth amendment: “Neither the Bill of Rights nor the specific practices of the States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9.” In Casey, the justices wrote of “liberty”–a term that actually appears in the Constitution–rather than “privacy” which does not. Lawrence v. Texas confirmed this since it was based on liberty rather than the right to privacy.

    The problem with the current jurisprudence is that judges must pick and choose among the unenumerated liberties of the people to find those that justify switching the presumption of Constitutinality and those that do not. The liberty to use birth control pills is protected, but the liberty to use marijuana is not. The business of performing abortions is protected, but the business of providing transportation is not.

    Why is it that only specific prohibitions of the Constitution shift the presumption of constitutionality when the ninth declares, “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”? Disparaging the liberties or rights retained by the people that are not “within a specific prohibition of the Constitution” is exactly what Carolene Products accomplishes. It runs afoul of the text of the Constitution as does the modern incantation. So you’re about that as well.

  402. @KD: . Proofreading is for the weak.

    An expected sentiment from the incompetent, sloppy thinker. Proofreading requires an attention to detail and the ability to recognize one’s own errors that is beyond you. Proofreading is for the minds that can focus and pay enough attention to detail to get things right and actually make things work. I understand your sour grapes, honey, but don’t worry. Adolescence is a recoverable disease. Just give it time.

  403. @KD: Well I’m just a man, honey, and that is the nature of human thought, it is full of error and irrelevant associations, and that error cannot be trained out. Neurons are a messy and inaccurate business, and a hundred billion neurons can be very, very wrong indeed. Golly, it sure seems like we talked about this when you were in middle school! But maybe my memory is wrong, it isn’t perfect.

    The trick, of course, is recognizing that imperfection in ourselves. Mark Twain said, “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.”

    Pretty funny, huh? (Of course sometimes it IS what you don’t know.) The lesson is, when somebody tells you they know something for certain, even if it is your Daddy, or Jefferson, or Locke, or Rousseau, or Newton, or Einstein, well maybe they think it is certain, but maybe they are wrong, or they got tricked, or some people will say they are certain when they are not, because they want to trick you into doing something.

    So you see what we need, little darlin’, is a way to guard against error, and to realize that even if we are so sure we are right, we should think about what happens if we are wrong, and what we could do now to minimize the damage just in case we ARE wrong.

    There are lots of ways to do that. Skepticism is one way Daddy taught you, and tracing ideas back to their underlying assumptions to see if you agree with them, that is another way, and just studying and understanding the myriad kinds of errors that people have made that got them into trouble is another, and learning to detect when people are lying in order to trick you or manipulate you is another. As you grow up you will learn all these different ways of helping you see the truth of things.

    So we don’t have to worry if our thoughts are confused, or sloppy, or unfocused. Once we realize that will always be true to some extent, what we need is ways to filter out the errors and mistakes in our thinking, to refine them, so that what we present on the outside —- our decisions and actions and reasoning and statements —- reflect the most probable truth, which is another way of saying that we are the least likely to be wrong.

    But nothing is ever 100%, princess. Daddy has been wrong many times, and as you grow up and mature, you will be wrong many times. You need to be brave and admit your errors, at least to yourself, because understanding your errors in their exact and embarrassing detail and the harm they caused you and others is the first step in not making the same mistakes again and again and again. That is what your Daddy wants for you when you grow up, that you are right far more often than you are wrong, and when you are wrong, it isn’t a total disaster. It is up to you, cupcake, it all happens inside your pretty angel head.

  404. kderosa:

    “What I object to is your copying and pasting of thoughts you aparently have little understanding about, which we shall examine presently.”

    Are you implying the veracity of his claim to a legal education?

  405. Tony C:

    “An expected sentiment from the incompetent, sloppy thinker.”

    kderosa may not spell well [probably because he is focusing on the content] but the words are correct in context and the misspelling is because of finger placement on the keyboard and his thoughts are extremely cogent and very competent.

    Your thinking on the other hand is balderdash.

  406. @TonyC, I bet you thought that was profound when you were writing it.

    @Roco, I do not think that Buddha/GeneH has a legal education, based on his inability to read caselaw and statutes coherently.

  407. @Roco, He also has a nasty habit of arguing against points he wants you to have made instead of the points you actually made. That’s the kind of bad argument skills law schools try to break students out of.

    By the way, did you happen to catch this bit of hilarious sock-puppet banter between “Buddha” and “GeneH” the first day “GeneH” mysteriously showed up out of the blue. The Buddha avatar was decommissioned two days later and GeneH posts this first “guest post” a week later. Quite the whirlwind introduction.

    ——————————————
    Buddha Is Lauhging1, July 7, 2011 at 11:05 pm

    Gene,

    Dude, no wonder you picked something like Eta Carinae as an avatar. You are on fire! We have several other science geek types who frequent here. I saw where you’ve met OS, Tony and LK. Keep an eye out for Slartibartfast and Bob, Esq. as well. Slarti is a mathematician and Bob just loves physics. You guys will hit it off just great.

    And go, Team NASA!
    ————————————-
    Gene H.1, July 7, 2011 at 11:19 pm

    Buddha,

    Thanks for the complement. I’ll have to say that among the many reasons I chose Eta Carinae, being “on fire” never came to mind. Mainly I picked it for aesthetic reasons. It’s a very pretty stellar event. There were some philosophical reasons as well, but pretty sold the deal. I should also say I’ve really enjoyed your posts too. You’re a rather savagely funny fellow. Jonathan has provided a great forum with his blog and you and the other “Regulars” really give it additional character. I’ve only been reading Jon’s blog for about a week now and I’m completely hooked. It provides some of the most stimulating conversations I’ve seen on the Internet in quite some time. Let me second your “Go, NASA” and I’ll leave it at that.
    ——————————————
    Buddha Is Lauhging1, July 7, 2011 at 11:26 pm

    Gene,

    “Savagely funny”? I like your choice of adjectives. Thanks for noticing.
    ———————————————

  408. Tony,

    That’s gotta be the first piece of mental masturbation I’ve ever read that sounded like the writer was actually masturbating when he wrote it.

    Apparently, taking a literalistic approach to the social contract is the least of your problems.

  409. “Fortunately we have Ayn Rand and the lack of intellectual competition to her philosophy.”

    It is true that Rand has no competition for her attempt at philosophy. It is only a poor attempt at creating a philosophy, in order to justify her own narcissistic feelings. Why would anyone with intellectual depth contend with it? It’s just one more failed belief and self justification for her own frailties. Her acolytes, smugly carrying the banner of their religiosity, just as Marxists piously practiced their gospel to the point of ruination.

  410. kderosa:

    “@Roco, He also has a nasty habit of arguing against points he wants you to have made instead of the points you actually made. That’s the kind of bad argument skills law schools try to break students out of.”

    Yes he does that a good deal. I would be saying one thing and then he would be responding to what I didnt say. I thought it was some sort of lawyer trick to throw the other person off balance. I used to shake my head all the time and think WTF?

  411. @Bob: No, the issue is that the level of argument attempted by kderosa and Roco literally reminds me of raising a child, so I figure I should try to speak on their level. I think the burden is upon the intelligent to figure out how to communicate with the less intelligent. Doesn’t that make sense? It seems ridiculous to demand that people do something they are literally incapable of doing.

    So we will see, this experiment may work yet. And I’d say the social contract has been taken pretty darn literally as the foundational justification of law.

  412. Tony C:

    ever stop and think that I might not be arguing with you on any real level because when I do you get very frustrated and start calling me a sociopath.

    Why would I subject myself to that? And why do you think I would have any respect for some one’s ideas who would do that?

    You are nothing but a collectivist with a very limited world view and understanding of human nature, our government and just about anything else having to do with human interaction because you perceive through a lens polished by Marxist premises.

    And you are wrong on most everything having to do with the social contract, republican government, Jefferson, Rousseau, Locke and whoever else.

    Bob Esq does understand these things and he has been trying for months to explain to you. You really should listen to him, he knows what he is talking about and is probably the only regular on this blog who does have a clue.

  413. @KD, Roco, Grossman: No, the problem is you argue like immature children; and this is the Internet, so for all I know you ARE immature children, and as an adult I should treat you as the evidence dictates: It is my social responsibility to help you understand, and I can’t do that if I descend to your level, and we obviously haven’t accomplished that goal by trying to treat you as adults, so there is not much left to try, childrens.
    [h/t Chef.]

  414. kderosa,

    Your “dozen” items are fine example of you not knowing what you are talking about. I also don’t care about your objections. That’s a cute argument “you’ve made” by the way. Did you get that from the Libertarian Handbook? You’d get flunked out of any reputable law school with misreadings like yours.

    Carolene Products was a valid application of the Commerce Clause as defined by Gibbons v Ogden, 22 U.S. 9 Wheat. 1 1 (1824). There was a valid nexus with interstate commerce as the Carolene Products attempting to sell their product in question (filled milk) across state lines against Federal law. It’s effect on enumerated rights was the application of the rational basis test for applying the Commerce Clause to economic regulation. Do you really want to bring up the Necessary and Proper Clause too? Carolene Products was not the first instance of the application of that test to a Federal law either. That fight goes back to the Federalists and the Anti-Federalists over the establishment of the First Bank of the United States. Hamilton essentially beat Madison (who despite writing the Federalist Papers was on the side of the Democratic-Republican Party against forming the bank and was trying to recreate himself as a strict constructionist) by using his own words against him. He told his friend Elias Boudinot that Madison had contradicted himself on the value of the N&P Clause by reversing his earlier position in Federalists 44; “No axiom is more clearly established in law or in reason than wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power for doing it is included.” Since you want to argue about the Necessary and Proper Clause like a strict constructionist, I suppose it’s just too bad for you that the Anti-Federalists lost that battle. “Your argument” proves you’ve never read McCulloch v. Maryland, 17 U.S. 316 (1819) and if you did, you didn’t understand it was a second loss for the Anti-Federalism stance over the N&P Clause. The N&P Clause is a power of Congress, not a limitation of power. If you have a problem with stare decisis, you probably should consider immigration at this point because the Constitution isn’t going to help you there. We have a strong Federal government. Adults learn to deal with the facts. Children whine about them. That’s in essence the Libertarian stand; whining because they don’t get what they want.

    Carolene Products effect on non-enumerated rights was to create a higher standard of scrutiny for laws impacting those rights if those rights are related to an enumerated right (prime facie unconstitutional), related to discriminatory behavior or that sought to rig or distort the political process. Almost every one of those rights on that list you seem to think I don’t understand can be traced to either an enumerated right or potential discriminatory behavior or are already an enumerated right in themselves.

    As far as Griswold goes, if you have a problem with SCOTUS being appointed, I suggest you look at the special interest graft riddled morass that is Congress and then think again about how wise it would be have Federal judges elected. They are bad enough on SCOTUS by merit of the luck of the draw that allows partisans to stack the Court in their favor.

    On your Casey “qoute”? That’s a fine unattributed quote you used there, but it’s nowhere in the decision. ““Neither the Bill of Rights nor the specific practices of the States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9.;'” So exactly who are you quoting there, kderosa? It’s not the Supreme Court.

    The 9th Amendment is only brought up twice in Planned Parenthood v. Casey in O’Connor’s dissent.

    “It is a bad enough idea, even in the head of someone like me, who believes that the text of the Constitution, and our traditions, say what they say and there is no fiddling with them. But when it is in the mind of a Court that believes the Constitution [505 U.S. 833, 999] has an evolving meaning, see ante, at 848; that the Ninth Amendment’s reference to “othe[r]” rights is not a disclaimer, but a charter for action, ibid.; and that the function of this Court is to “speak before all others for [the people’s] constitutional ideals” unrestrained by meaningful text or tradition – then the notion that the Court must adhere to a decision for as long as the decision faces “great opposition” and the Court is “under fire” acquires a character of almost czarist arrogance. We are offended by these marchers who descend upon us, every year on the anniversary of Roe, to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people who refuse to be “tested by following” must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change – to show how little they intimidate us.

    Of course, as THE CHIEF JUSTICE points out, we have been subjected to what the Court calls “`political pressure'” by both sides of this issue. Ante, at 963. Maybe today’s decision not to overrule Roe will be seen as buckling to pressure from that direction. Instead of engaging in the hopeless task of predicting public perception – a job not for lawyers but for political campaign managers – the Justices should do what is legally right by asking two questions: (1) Was Roe correctly decided? (2) Has Roe succeeded in producing a settled body of law? If the answer to both questions is no, Roe should undoubtedly be overruled.

    In truth, I am as distressed as the Court is – and expressed my distress several years ago, see Webster, 492 U.S., at 535 – about the “political pressure” directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account [505 U.S. 833, 1000] their views, as though we were engaged not in ascertaining an objective law, but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it. That cause permeates today’s opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls “reasoned judgment,” ante, at 849, which turns out to be nothing but philosophical predilection and moral intuition. All manner of “liberties,” the Court tells us, inhere in the Constitution, and are enforceable by this Court – not just those mentioned in the text or established in the traditions of our society. Ante, at 847-849. Why even the Ninth Amendment – which says only that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” – is, despite our contrary understanding for almost 200 years, a literally boundless source of additional, unnamed, unhinted-at “rights,” definable and enforceable by us, through “reasoned judgment.” Ante, at 848-849.

    What makes all this relevant to the bothersome application of “political pressure” against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here – reading text and discerning our society’s traditional understanding of that text – the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality, our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, Lee v. Weisman, 505 U.S. 577 (1992); if, as I say, our pronouncement of constitutional law rests primarily on value [505 U.S. 833, 1001] judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school – maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but the confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. JUSTICE BLACKMUN not only regards this prospect with equanimity, he solicits it.” PLANNED PARENTHOOD OF SOUTHEASTERN PA. v. CASEY, 505 U.S. 833 (1992).

    And what was O’Connor’s conclusion about the law if people are unhappy with how SCOTUS decides? See the bold section above. If the people are unhappy with the value judgements that are “accidentally committed” to the Supreme Court, they should take it up with Congress and try to get laws passed that do reflect their values while not prime facie violating the Constitution. Democracy in action that. That you’ve adopted the values of an extremist fringe minority would be your problem to overcome. If the ideas of Rand and Libertarianism are so grand, sell them to the American people and to Congress so you can implement them as law. Good luck with that.

    In regard to your note about having interacted with Buddha Is Laughing shortly before he took his leave? I offer you the same response as I did to your “grammatical evidence”: So what? How desperate are you find yourself a Boogey Man? The level of paranoia you are displaying is truly sad. I suspect it’s not helping your credibility much either. I happen to think the guy is funny and I told him so. That’s my opinion and I’m entitled to it. Much like I am entitled to my opinion that you’re a paranoid pretending to understand the law based on what somebody told him it should be instead of what it actually is.

  415. Gene H.
    > would be your incorrect and ill-informed opinion

    Youre wrong.

    [See, I, too, can make arbitrary assertions, w/o evidence, as if I had said nothing. Whee! Isn’t this mindless fun! “I assert myself, therefore I am right” is your intellectual habit, your cognitive style.

    THERE IS NO INTELLECTUAL COMPETITION TO AYN RAND’S PHILOSOPHY OF OBJECTIVISM!

  416. @Buddha,

    Your legal research skills as well as your legal interpretation as lacking:

    Casey, 505 U.S. at 848

    Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9. As the second Justice Harlan recognized:

    [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This “liberty” is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Poe v. [505 U.S. 833, 849] Ullman, supra, 367 U.S., at 543 (dissenting from dismissal on jurisdictional grounds).

    I’ll give you the full history lesson later today.

  417. Grossman,

    Shouting doesn’t make you right. It does illustrate you act like a child though.

    ****************

    kderosa,

    Your now proper cite does nothing to bolster your legal argument. What that says is that not all retained non-enumerated rights are touched upon by the enumerated rights. Nothing more, nothing less. Whoever told you it did is simply wrong and if you came up with your interesting interpretation on your own, it’s just further evidence of why you shouldn’t be taken seriously.

    Also, I don’t care about what you think of BiL’s legal skills. Considering your fatuous and paranoid nature, should you wish to insult my skills, you’ll find me equally unconcerned. No matter if you address your imaginary friend or not, I’ll still point out when you are wrong.

    On your suggestion, I read “The Bells Are Ringing: Sarah Palin and the Revised Story of Paul Revere’s Ride” thread. I anxiously await your “history lesson”, which if it is of the quality of the history lesson you attempted on that thread, ought to be completely factually incorrect and ridiculous. Thanks for the referral to a thread that shows even more of how your mind works.

  418. Gene,

    Why waste breath on the dolts so early in the morning….Maybe by noon they will be so tired of waving at the sun….that they take a nap…..

  419. AY:

    what are you the idle rich? I have been up since 7 am toiling away. Go get a job and make something of yourself, you cant live on yo daddies or grandaddies trust fund your entire life. One of them actually had to work hard to make that money. I imagine they wouldn’t be too happy seeing you drinking at 10 am and posting on a blog with nothing substantive to say.

    Kind of like the Greek chorus in a progressive tragedy. Although the chorus of old did add something to the play. You however do not.

  420. @GeneH, why did you haev to read that thread, did you forget all the comments you posted on that thread already?

  421. Roco,

    How charming of you to be concerned with my well being….It is truly touching and amazing….I trust you know something about me…which makes it all the more touching and amusing….I am touched by your kindred concern….

    Now, if kind sir….you would go back to your glass pipe once it cools down you can finish the last rock you have…

    I hope that you don’t live in the same neighborhood that I do….but suffice it to say…even the best of parents can raise a failure…Do you feel like you are looking in a mirror very often? Does what you do control the remainder of your choices…..if you want..tell us where you are at am I am sure someone will obtain the requisite and necessary help for you…medical or otherwise…From what I hear…it is ok to ask for help….But you have to be willing to take the necessary steps on your own…that would be a start….regardless if you are successful in your first attempt….

  422. kderosa
    >certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.

    Man, a living organism, has needs, among them, state protection of rights. States, being mere abstractions from concrete reality, have no needs. The Constitution’s unenumerated, implicit, Enlightenment rights are found in Ayn Rand’s _Capitalism: The Unknown Ideal_, in the context of a systematic philosophy based on metaphysical fundamentals. Utilitarianism, postmodernism, Pragmatism, Kant and all the rest of modern superficialities and nihilisms are not a basis for rights but of the political chaos developing around us and in modern man’s mind (see certain posters here) as explained by Plato and Aristotle in their unrefuted condemnation of democracy.

  423. AY:

    I am concerned for your well being. If you tell me what street corner you work, I will make sure when I drive by to have a 5 dollar bill and a bottle of ripple at the ready. Otherwise you would use the fiver for ripple and pass on a meal.

  424. Roco,

    I would be very careful if I were you when I drove….If you drive like how you writing….they could very well pick you up for being impaired….It probably would be best to get a designated driver….as your thinking and actions appeared to be clearly impaired….but then again….it might just be a state of consciousnesses that you are able to deal with life as you see it….

    I know what a fiver is…aka fin….etc…but what is ripple? Help me here with that term…it has so many meaning….

    I am familiar with Ripple as defined by these guys…..

    Ripple is the more common name for a capillary wave in fluid dynamics.
    Ripple can also refer to:
    Ripple (charitable organisation), a non-profit click-to-donate internet site and search engine
    Ripple effect, the socio-educational phenomenon
    Ripple (electrical), residual unwanted variations following ac to dc conversion
    Frequency domain ripple, the ripple of a filter’s insertion loss
    Ripple marks, as identified in sediments and sedimentary rocks
    Ripple monetary system, an open-source software project for developing and implementing a protocol for an open decentralized payment network.
    USS Ripple, the name of more than one United States Navy ship
    Ripple was a well-known brand of Low-end fortified wine…..

    Or the most familiar definition….

    To cause to form small waves or undulations.
    n.
    1. A small wave.
    2. A wavelike motion; an undulation: the ripple of a flag.
    3. A sound like that made by rippling water: a ripple of laughter.

  425. RockO.

    Never tried it…Not something that my palates would suffer well with….You go right ahead an drink the ripple and smoke that rock…if you used gloves do you think you palms would be blistered….but then you risk a fire…so just stick with the hand and palms…

    Here I found this on the net for you:

    Most any kind of pipe will do, and it doesnt matter what it is made of glass, plastic etc. , as long as it is nice and tight. I used to make them out of the clear 12 oz liqour bottles so i could see the hit. I would pull the hit into the chamber, let the choke go, and watch the candy roll in. That was so sweet.

    Read more: http://www.drugs-forum.com/forum/showthread.php?t=7719#ixzz1SrIeZlPi

  426. So see RockO, You have all you need and did not realize it…Gosh aren’t you pleased you came a calling this morning….

  427. “THERE IS NO INTELLECTUAL COMPETITION TO AYN RAND’S PHILOSOPHY OF OBJECTIVISM!”

    Shouted like a true Fundamentalist, name your religion. That statement alone, irrespective of whether Rand has good points to make or not, shows you to be a religious nut of the socio-political kind. No wonder your teachers hated you, they saw you were batshit crazy.

  428. Tony C.
    >@KD, Roco, Grossman: No, the problem is you argue like immature children;

    YOURE AGAIN EVADING IDEAS FOR PERSONAL ATTACKS!

  429. @Stevie: I’m going to give you a time out if you keep shouting. I am not evading ideas, I am dismissing them as childishly illogical, selfish, and unworkable. They truly are not worth the time it takes to discuss them; they are so ludicrous. How much sugar have you been eating? You seem very hyper to me. You can do what you want, but I think you would feel better if you go jump on the trampoline for awhile.

  430. Mike Spindell
    >Shouted like a true Fundamentalist,

    Does mean that you are a Superficialist?

    >name your religion.

    One of the benefits of education, as distinct from your Progressive conceptual disintegration, is learning that rational, non-religious fundamentals created the West and have been profoundly influential for millenia. Eg, Thales, the first philosopher, rejected supernatural causes for natural causes.

    >No wonder your teachers hated you, they saw you were batshit crazy.

    One of the benefits of education, as distinct from your Progressive conceptual disintegration, is learning that
    volitional ideas are not the product of automatic psychological processes. Ie, psychological reductionism is invalid.

    They feared me. But they were mostly liberals who, given your view, should have pitied or even tolerated someone, given your view, alternatively psychological. The current philosophy dept chair posted a glowing notice about Alex, the allegedly rational parrot. Of course, he first reduced reason to perception. Im thinking of protesting until they hire Alex for a tenure track.

    You remain an intellectual fraud known to honest posters, whatever their views.

  431. Tony C.
    > I am not evading ideas, I am dismissing them as childishly illogical, selfish, and unworkable.

    Evidence?

    Conventional, emotion-guided, predatory pseudo-selfishness or Rand’s “new theory of egoism?”

    Unworkable for what purpose, by what standard?

    You remain ann intellectual fraud, spitting on man’s mind, your own and others.

  432. Gyges
    >I am biased by my philosophical resistance to granting homo sapiens any sort of “special place” in the grand scheme of life on earth.

    Why should you value an alleged grand scheme instead of your own rational scheme? Is your mind your enemy, a merciless reminder of the effects of evasion? And how can your contempt for man rationalize mass murder? Even the Nazis valued some humans. You value no human. You are a depraved monster.

  433. @Grossman: First, Alex the parrot is dead. Second, you apparently cannot read, the point of the science with Alex, who was named for the experiment he was part of (A Lexical EXperiment), was not to show the bird was “rational” but to show that the bird could be taught elements of language requiring cognition once thought to be strictly in the province of humans.

    That goal was accomplished, stunningly and scientifically. Dr. Pepperberg proved this without doubt and overturned dogma in her science, which is never any small feat, in any science. The point was not to study whether the bird could reason, the point was to study whether it takes a primate-sized brain to understand language. It does not. The bird could understand sentences and respond appropriately. Extensive precautions were taken to ensure there was no alternative explanation, or any way that the parrot would be prompted to just repeat a memorized answer, or anything else of that sort.

    Your snorting dismissal of the science of those experiments only serves to prove further that you are not yet mature. It is you that is the intellectual fraud; it is evidenced by your pretentious misuse of language and your inability to argue from a rational basis and the rage that comes through on the page at your mistreatment by society.

    In fact, all you can do, little boy, is Parrot the work of others. At least Alex could be original once in a while.

  434. Wait, I believe it might have been “A Language EXperiment.” No difference to the point, however, the bird was named after the experiment.

  435. @Grossman: Unworkable for the creation of society, which the vast majority of people value, and according to the standard of fairness, the detection of which is apparently inherent in all humans with normally functioning brain parts and, reason will tell you, is the most likely root of reason itself.

  436. Tony C.
    > Alex the parrot is dead.

    I wail and gnash my teeth. Will you join me in mourning? Friends ,Romans and birdbrains…

    >to show that the bird could be taught elements of language…. to study whether it takes a primate-sized brain to understand language.

    The birdbrains of modern thought have reduced reason to perception and then claim that perception is reason. In the context of these pseudo-scientific rituals of anti-reason, anti-man, egalitarian ideology, “understanding” is merely perceptually recognizing and perceptually manipulating perceived patterns. “Understanding” has meaning only in the context of reason. Millenia and more of man observing and using brute animals has not provided the slightest scientific justification for such experiments. These experiments drop the context of a vast amount and variety of such knowledge. These experiments and their interpretation as “understanding” are arbitrary, not science. You may want to study whether the moon is green cheese but there is no context for it and a vast context against it. On the other hand, Newton’s study of gravity had man’s vast concrete, pre-scientific experience of gravity and observations and recording of patterns in, eg, star movements. Science is rational system in both discovery and the organization of discoveries, not arbitrary hypotheses and conclusions.

    Brute animals, even in bizarrely artificial lab experiments with no relevance for their live in the wild, are stuck in the concrete. Man, by abstracting from the concrete, ie ,selective attention, can regard concretes as units of a group and can then integrate (not associate) the units into a concept by omitting the measurements and retaining only the property that exists with different measurements. He can integrate chair, table and lamp into the concept, furniture. Furniture refers to all concrete things within a certain context, even the things not immediately perceived. Man uses concepts to expand his knowledge vastly beyond stuck-in-the-concrete perceptions of brute animals. He can even abstract from abstractions in a logical hierarchy (only with a base of perceived concretes). Einstein’s E=MC2 is the conclusion of a very long hierarchical/logical chain of conceptual abstractions based in ancient observations of star patterns. Justice and law are concepts logically/hierarchically abstracted from the perception of concretes. When the chain is broken, as in subjectivism and mysticism ,there is no reasoning.

    See Rand’s _Intro. To Objectivist Epistemology_ which presents the solution to the problem of universals.

  437. I will see nothing, either you can understand the work and summarize it and defend it yourself, or you cannot, in which case you are just engaging in hero worship, like a child.

    Nobody has reduced reason to perception, that is a lie. If all you want to do is lie and insult, you will have to discuss with somebody else. I understand your need, I assume you are an abject failure and do not understand why, so you wish to blame the people that refuse to listen to you. Insult is a salve, I get that. Lying to make your points is easier than actual point-by-point reasoning, especially if you are incapable of it. I get that too.

    But I will not be your foil for the relief you seek. If you want a discussion, you can try again; otherwise, little ape, you can fling shit out of the cage you have built yourself, just to relieve your self-pity for a moment.

  438. @Gene Buddha Howington

    As is your custom when posting under your various personas your argument rests on many faulty premises:

    1. You confuse liberties and license. Only liberties, both enumerated and unenumerated, are protected under our Constitution. though subsequent case law has eliminated many of the unenumerated liberties from protection except a few that the Court deems to be “fundamental.”

    2. Your understanding of what the commece clause power is based on subsequent case laws have expanded that power to capture much more than what the original term was meant to cover, i.e, the regulation, nor prohibition, of “trade” between the states.

    3. Your understanding of Gibbons v Ogden is off. Marshall indicated that “commerce” meant “intercourse” as defined in sanuel Johnson’s dictionary (and others) and not manufacture or agriculture. This was the understanding of the term (See E.C. Knight and Carter Coal) up until 1936 when the New Deal Court expanded the term so that the progressive agenda could be enacted. It was not until 1941 in U.S. v Darby that the Court stopped holding Congress to its enumerated Commerce power.

    4. O’Gorman & Hartford Fire was the case that really expanded Congressional power, through the N&P clause by adopting a rebuttable presumption of Constitutionality to congressional regulation unless tha action was spcifically prohibited by the Constitution, unlike Lochner which presumed the opposite and required Congress to demonstrate necessity.

    5. Carolene Products was, however, still related to ordinary commercial transactions and not the expanded meaning of “commerce” as adopted by the New Deal Court. However, the significance of Carolene Products is that it established the modern theory of constitutional rights which by 1941 applied to both state and federal regulation, as I’ve indicacted above. Basically, it shifted the presumption of regulation from unconstitionality to constitutionality except when an enumerated right in the Bill of Rights was being infringed (or the other two exceptions) and required legislatures to show that their actions were both necessary and prooper. Previously, under Lochner, all rights, both enumerated and unenumerated, enjoyed this protection. So Carolene producst greatly limited the protection of unenumeated rights, effectively didrergarding the ninth amendment.

    6. Your understanding of the N&P clause is also off. Madison’s view was the original meaning of that clause as enacted. Marshall did expand the meaning of the clause in McCulloch but not as far as Hamilton had wanted. Hamilton also had lost that argument during the convention. Nonetheless, McCulloch, though it expanded Congressional power to encompass unenumerated powers, still established the means-end scrutiny of the necessity of any such regulation that restricted liberties up until Lochner and until this scrutiny was abandoned in O’Gorman.

    7. You misunderstand my point about having unelected judges making policy decisions, which are the rightful province of the legislature.

    8. Your bolded quote of O’Connor merely indicates that O’Connor was simply following the Courts accumulated butchering of the ninth amendment and N&P clause and had accepted the usurpation of Power of the juciciary and the legislature from the unenumerated retained rights formerly enjoyed by the people. Of course, O’Connor agrees with my argument as to how the New Deal court expanded federal power:

    The Court based the expansion [of the commerce power] on the authority of Congress, through the Necessary and Proper Clause, “to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to teh permitted end.’ It is through this reasoning that an intrastate activity “affecting” interstate commerce can be reached through the commerce clause … [A]nd [this] reasoning … underlies everu recent decision concerning the reach of Congress to activities affecting interstate commerce.

    Garcia v. San Antonio Metropolitan Transit Authority

    Your misunderstanding of almost the entirety of basis upon which our system of Government was founded, the original meaning of the Constiition which protected all of rights, enumerated and unenumerated, what a right even is, and what is proper judical review is deep and vast. But I suppose we must start somewhere in re-educating you.

  439. “1. You confuse liberties and license.”

    Not in the slightest. Liberty is a state of being free to enjoying various social, political, or economic rights and privileges. License is a permission granted by competent authority to exercise a certain privilege that, without such authorization, would constitute an illegal act. License (or forbidding license) is the essence of the rule of law. You saying I don’t understand is not a rebuttal or a history lesson, but it demonstrates that you are squarely against the rule of law.

    “2. Your understanding of what the commece clause power is based on subsequent case laws have expanded that power to capture much more than what the original term was meant to cover, i.e, the regulation, nor prohibition, of “trade” between the states.”

    It’s called the English common law system and the concept of stare decisis. If you have a problem with that, not only do you have a fundamental lack of understanding regarding our legal system, your only real option is immigration. Once again, you demonstrate that you are squarely against the rule of law. Unless if gives you exactly what you want. Sorry. That’s not how the law works.

    “3. Your understanding of Gibbons v Ogden is off.”

    Actually my understanding of Gibbons v Odgen is spot on. Commerce is a synonym not only of the word “business” but of the words “intercourse” as well as the words dealing, dealings, economics, exchange, industry, marketing, merchandising, merchantry, retailing, trade, traffic, truck, wholesaling, relates, affinity, application, association, bearing, bond, communication, correlation, correspondence, interrelation, kinship, link, nexus, partnership, reciprocity, relation, relationship, relevance, tie-in, and togetherness. Your attempts to make your own definitions fails again. Your argument on this point is not only semantic, but wrong.

    “4. O’Gorman & Hartford Fire”

    If you mean O’Gorman & Young, Inc. v Hartford Fire Ins. Co., then your contention that it “really expanded Congressional power, through the N&P clause by adopting a rebuttable presumption of Constitutionality to congressional regulation unless tha action was spcifically prohibited by the Constitution” is total crap. The Brandies Court in O’Gorman held that ‘[t]he statute here questioned deals with a subject clearly within the scope of the police power. We are asked to declare it void on the ground that the specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute.” O’GORMAN & YOUNG, INC. v. HARTFORD FIRE INS. CO., 282 U.S. 251, 258 (1931).

    In other words, unless a law is prime facie unconstitutional, you must prove that it is.

    Why how dare the Court demand proof from a claimant who absent a prime facie case bears the burden of proof! They should just take claimants at their word on what the law is, shouldn’t they? If courts did that, there would be no need for trials because the law would be whatever the claimant wants it to be. Hmmmm, that does sound familiar. No wonder you don’t like the ruling in this case. Do you even know how a court operates? It certainly doesn’t sound like you have a clue.

    In addition, O’Gorman dealt with the police powers as related to a state law, specifically the police powers regarding enforcing laws applicable to regulating insurance rates. The claimants in the case based their argument on the state law depriving them of Due Process. O’Gorman didn’t address the N&P Clause. It’s about police powers. According to the 10th Amendment, policing powers prohibited from or not delegated to the Federal Government are reserved to the states or to the people. The implication of this is that states do not possess all possible powers, since some of these are reserved to the people and delegated to the Federal Government. People with a legal education file that under “duh!” All the O’Gorman decision did was say that the State of New Jersey had the right to regulate insurance rates how they saw fit and unless the claimants could prove a Due Process violation on its face, they had to bear the burden of proof of proving that the law was a Due Process violation.

    The audacity!

    “5.” Repeating your still wrong argument about the nature of Carolene Products does not make it correct, but simply repetitive. This paragraph offers nothing of substance that hasn’t already been sufficiently rebutted so I’m going to treat it like the repetitive gibberish that it is and ignore it.

    “6.” You offer no proof, only opinions. Wrong ones at that considering that the First Bank of the United States was indeed founded, a fact that squarely indicates that Hamilton did indeed win the day. As this is merely your opinion and not fact, it’s not worth addressing.

    “7. You misunderstand my point about having unelected judges making policy decisions, which are the rightful province of the legislature.”

    I don’t misunderstand a thing. You misunderstand democratic process as it relates to judicial and legislative process.

    “8. Your bolded quote of O’Connor merely indicates that O’Connor was simply following the Courts accumulated butchering of the ninth amendment and N&P clause and had accepted the usurpation of Power of the juciciary and the legislature from the unenumerated retained rights formerly enjoyed by the people.”

    No, my quote of O’Connor (from the dissent) clearly says that if the people are unhappy with the value judgements that are “accidentally committed” to the Supreme Court, they should take it up with Congress and try to get laws passed that do reflect their values while not prime facie violating the Constitution. That she elsewhere indicates agreement with you over the use of the Commerce Clause to intrude into intrastate commerce is irrelevant because she was once again in the minority dissent in Garcia. If you wanted to use her Garcia dissent, you should have used it in the first place instead of Planned Parenthood v. Casey. That would of course required that you actually understand what you read and not operate off of what someone is clearly spoon feeding you. The law is what the law is as determined by legislation and regulation as viewed and applied through the prism of the U.S. Constitution (or a state constitution as appropriate) and upheld through stare decisis. Your view, and hers, is childishly simplistic as in an ever interconnected world (and economy), very little modern commerce is truly intra-state commerce. If you’re unhappy with the common law jurisprudence, take it up with your state and Federal representatives and attempt to get laws passed that say what you want that can withstand judicial scrutiny if (and in your case more like when) challenged.

    Re-education? Your arrogance is as astounding as your paranoia, but not nearly as astounding as your ignorance. As to my earlier prediction that your “history lesson” would be ridiculous, it