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July 06, 2008

Frederick Douglass on compromise and the Fourth

Douglass made the same point I made in my response to Mr. Yglesias, far more eloquently than I:

Your fathers staked their lives, their fortunes, and their sacred honor, on the cause of their country. In their admiration of liberty, they lost sight of all other interests.

They were peace men; but they preferred revolution to peaceful submission to bondage. They were quiet men; but they did not shrink from agitating against oppression. They showed forbearance; but that they knew its limits. They believed in order; but not in the order of tyranny. With them, nothing was “settled” that was not right. With them, justice, liberty and humanity were “final”; not slavery and oppression. You may well cherish the memory of such men. They were great in their day and generation. Their solid manhood stands out the more as we contrast it with these degenerate times.

How circumspect, exact and proportionate were all their movements! How unlike the politicians of an hour! Their statesmanship looked beyond the passing moment, and stretched away in strength into the distant future. They seized upon eternal principles, and set a glorious example in their defence. Mark them! Fully appreciating the hardships to be encountered, firmly believing in the right of their cause, honorably inviting the scrutiny of an on-looking world, reverently appealing to heaven to attest their sincerity, soundly comprehending the solemn responsibility they were about to assume, wisely measuring the terrible odds against them, your fathers, the fathers of this republic, did, most deliberately, under the inspiration of a glorious patriotism, and with a sublime faith in the great principles of justice and freedom, lay deep, the corner-stone of the national super-structure, which has risen and still rises in grandeur around you.

July 05, 2008

Treasures from my library

This is my 1849 first edition of The Life And Public Services of John Quincy Adams by William Henry Seward.

Continue reading "Treasures from my library" »

Yglesias on liberty, compromise, and our nation

Matthew Yglesias at the Atlantic writes, “I think the United States is a pretty awesome country but it very plausibly would have been even awesomer had English and American political leaders in the late 18th century been farsighted enough to find compromises that would have held the empire together.” I think this is an interesting comment. It’s hard to tell in just what way things would have been “awesomer,” but I would guess he means it would have been nice to have avoided bloodshed by coming up with “compromises.”

What form would such “compromises” have taken? In June 1775, a year before declaring independence, the Continental Congress sent Parliament an “Olive Branch Petition,” seeking a peaceful redress of colonial grievances. The king, however, refused to read the petition. This was not the only attempt that the colonists had made to find some peaceful resolution to the crisis, and not the only time they were rebuffed. But what they understood—and what many today do not understand—is that there is a limit to appropriate compromise. What they understood is that bloodshed may be an awful thing, but it is not the worst thing, and some things, particularly freedom, are worth shedding blood.

The British had asserted a right to “bind [us] in all cases whatsoever”—an assertion of absolute, despotic rule which renders compromise impossible. Compromise, after all, is available only to people who can come to an agreement on fundamentals. When one party claims the right to rule another without their consent, and in all cases whatsoever, it is simply not possible to compromise, or appropriate to try. July 4th is, if nothing else, a time for gratitude that our forefathers recognized this fact. When in February 1775, Lord North offered a “conciliatory proposal” to the Americans, they responded   

when the world reflects, how inadequate to justice are [North’s] vaunted terms; when it attends to the rapid and bold succession of injuries, which, during a course of eleven years, have been aimed at these Colonies; when it reviews the pacific and respectful expostulations, which, during that whole time, were the sole arms we opposed to them; when it observes that our complaints were either not heard at all, or were answered with new and accumulated injury; when it recollects that the Minister himself on an early occasion declared, “that he would never treat with America, till he had brought her to his feet,” and that an avowed partisan of Ministry has more lately denounced against us the dreadful sentence “delenda est Carthago,” that this was done in presence of a British Senate, and being unreproved by them, must be taken to be their own sentiment, (especially as the purpose has already in part been carried into execution by their treatment of Boston, and burning of Charlestown) when it considers the great armaments with which they have invaded us, and the circumstances of cruelty with which these have commenced and prosecuted hostilities; when these things, we say, are laid together, and attentively considered, can the world be deceived into an opinion that we are unreasonable, or can it hesitate to believe with us, that nothing but our own exertions may defeat the ministerial sentence of death or abject submission[?]

Abject submission is what you get when you try to “compromise” with those who would destroy your liberty and reduce you under absolute despotism. What a shame—and what a comment on contemporary politics—that many opinion-makers today would think of such a route as “awesome.”

It should not surprise us that Yglesias would say such a thing, however. Elsewhere he writes of the difference between liberals and conservatives that “liberals do a better job of recognizing that much as we may love America there’s something arbitrary about it—we’re [sic] just so happen to be Americans whereas other people are Canadians or Mexicans or French or Russian or what have you.” But this, of course, is getting the deal exactly wrong. These other nationalities are based on ethnicity and chance, while American nationality is based on choice and the assent to certain basic principles that make up our nation. Nobody explained this better than Abraham Lincoln in a speech given almost exactly 150 years ago,

Now, it happens that we meet together once every year, sometime about the 4th of July, for some reason or other. These 4th of July gatherings I suppose have their uses. If you will indulge me, I will state what I suppose to be some of them....

We hold this annual celebration to remind ourselves of all the good done in this process of time of how it was done and who did it, and how we are historically connected with it; and we go from these meetings in better humor with ourselves—we feel more attached the one to the other, and more firmly bound to the country we inhabit. In every way we are better men in the age, and race, and country in which we live for these celebrations. But after we have done all this we have not yet reached the whole. There is something else connected with it.

We have besides these men—descended by blood from our ancestors—among us perhaps half our people who are not descendants at all of these men, they are men who have come from Europe—German, Irish, French and Scandinavian—men that have come from Europe themselves, or whose ancestors have come hither and settled here, finding themselves our equals in all things. If they look back through this history to trace their connection with those days by blood, they find they have none, they cannot carry themselves back into that glorious epoch and make themselves feel that they are part of us, but when they look through that old Declaration of Independence they find that those old men say that “We hold these truths to be self-evident, that all men are created equal,” and then they feel that that moral sentiment taught in that day evidences their relation to those men, that it is the father of all moral principle in them, and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh of the men who wrote that Declaration, and so they are. That is the electric cord in that Declaration that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world.

When Yglesias ridicules the idea “that the citizens of Iraq or Russia or China or wherever will drop their own patriotisms and come to see things our way,” what he is ridiculing is the idea that people can come to believe in the premises upon which our nation relies—the premises of equality and liberty—premises which, of course, should never be bargained away in an abject search for peace at any price. He is ridiculing the idea that Americanism is anything more than ethnic happenstance. He is therefore ridiculing the idea of government by the understanding, principled consent of the governed.

What July 4th is about is to remind us that all those who stand up for freedom and refuse to “compromise” their rights to life, liberty, and the pursuit of happiness, are brothers and sisters and at heart Americans; that all who today try to move their countries toward a fuller recognition and implementation of these principles are working hand in hand with our founders; that American nationhood is the first ever founded on anything but an arbitrary ethnic or historical basis, but on the basis of certain shared principles, principles that can be grasped by “a candid world,” and that give hope to all men for all future time.

(c/o; c/o)

Update: Welcome Instapundit readers! Take off your coat and stay awhile; we have some libertarianism, law, art, and cool videos of bunnies beating up rattlesnakes.

Ferry Farm Found

Archaeologists believe they have discovered the foundations of George Washington's boyhood home.

July 04, 2008

Friday art


Thomas Jefferson Statue at UVA Law
(Originally uploaded by eralon)

This statue of Thomas Jefferson at the University of Virginia law school is a copy of a sculpture commissioned for the Jefferson National Expansion Memorial under the St. Louis Arch. It's one of my favorite depictions of Jefferson, but I can't seem to find any good photos of it on line--or to find out who the sculptor is. (I wish I had paid closer attention when I was at the Arch!) If anyone knows the name of the sculptor, or can send me more photos of it, I would be very appreciative.

July 03, 2008

This'll make you patriotic if nothing else does

The signing of the Declaration, carved out of cheese.

(Thanks to Pagona for the pointer.)

Maybe now libertarians will learn skepticism toward Obama?

Some libertarians of my acquaintance are so determined to abandon the war that they’re willing to support Obama, despite the fact that he is a socialist in all but name, despite his revolting kowtowing to the religious lobby, and despite the fact that nobody could seriously believe that an Obama Administration really would order an immediate American withdrawal from Iraq. Maybe this story will restart their critical faculties.

Hostages freed

Back in February, The Crossed Pond observed the five year anniversary of the seizure of several hostages, including three Americans, by the Colombian FARC. Today, the surviving hostages, incuding Americans Marc Gonsalves, Keith Stansell, and Thomas Howes, returned home.

1861 was not 1776

From Ben DeGrow: "From the libertarian perspective, the Progressives are the bad guys in American history. Leave Lincoln and the Civil War out of it, I say." Hear hear!

July 02, 2008

Why is this story on the front page of the Bee?

The front page of today’s hardcopy Bee—the top story, in fact—is Linda Greenhouse’s article that the Supreme Court was wrong in stating that there is no federal law imposing the death penalty for child rape. While that error may have had some significance in the recent death penalty case, it’s hardly dispositive, and probably not the result of malfeasance. While it’s an interesting story that was broken by a blogger, the error is unlikely to have any effect on the case. With California now suffering from over 1,000 wildfires, and a budget crisis that seems to signal economic doom, this is the story the Bee chooses for its above-the fold front page story? (And why is it not on their website?)

July 01, 2008

Another letter in the Green Bag

The Green Bag has published my letter to the editor about literary references in judicial opinions. You can check it out at 11 Green Bag 2d 284.

June 28, 2008

A treasure from my library

Here’s a cool book I picked up several years ago. Lectures on Rhetoric and Oratory by John Quincy Adams.

JQA was, among other things, a Harvard professor, and the real love of his life was literature. Had he not been pushed hard by his parents he would have tried to make his life as a poet and author. But in 1810, he published two volumes of lectures on rhetoric, of which, alas, I have only volume 2. I don’t remember where I got it. Some antique store somewhere.

The story behind this book is very cool, though. In 1811, John Adams was persuaded by his fellow Declaration signer Benjamin Rush to reconcile with his erstwhile friend Thomas Jefferson. The two had not spoken in 11 years, thanks to the political differences that exploded in the 1800 election. Adams gave in to Rush’s promptings and wrote to Jefferson a short letter which you can see here. He enclosed with the letter “a Packett containing two Pieces of Homespun lately produced in this quarter by One who was honored in his youth with some of your Attention and much of your kindness.” The “two Pieces of Homespun” were the two volumes by John Quincy, and my volume is from the same printing. So on my shelf is a little piece of the Adams-Jefferson history.

Stephan Kinsella’s idiocy reaches new lows

Readers of this blog know that Stephan Kinsella long ago sacrificed not his claims to intellectual respectability or honesty. But he has truly outdone himself in this post arguing against the Supreme Court’s decision in Heller.

Mr. Kinsella, who is pleased to call himself a libertarian, attacked the decision in Lawrence and defended the decision in Kelo on the grounds that states should have the absolute power to deprive people of their lives, liberties, and property without due process of law—he holds the Fourteenth Amendment to be “squalid,” you see, so he would prefer to ignore it—and now he says that for similar reasons, the Heller case should have come out the other way.

His “reasoning,” such as it is, comes to this: because the Constitution gives the federal government limited, enumerated powers, that means Congress lacks the police power. (This much we would agree on, of course.) And yet Washington, D.C., does have such a power: “Unlike the federal government, DC can outlaw murder and rape and theft. But how can this be? After all, the federal government itself has no authority to outlaw murder. Yet DC does.” Therefore Washington, D.C., is something unique, it must be some kind of quasi-state or something. And since “the Bill of Rights was never intended to apply to the states”—remember, Kinsella would prefer to ignore the Fourteenth Amendment—“it makes no sense to apply the Bill of Rights to DC.” Kinsella does not know what D.C. is exactly; not a state exactly, but something like it, and therefore it should not have to follow the Bill of Rights which only applies (in his mind) to the federal government.

Okay, except for one little thing: the Constitution specifies that Congress shall have power to “exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may…become the Seat of the Government of the United States.” That is to say, Article I, section 8, grants Congress precisely the sort of police power over Washington, D.C., that it is denied over the states. This power is, of course, substantively identical to Congress’s power to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” (Art. IV sec. 3) which was also always understood as giving Congress authority to prohibit murder, and enact similar police power laws—subject, of course, to the limits in the Bill of Rights. Washington, D.C., is not a quasi-state; it is an institution of the federal government and therefore, even aside from Kinsella's silly crusade against the Fourteenth Amendment, it still must respect the Second Amendment.

In other words, Kinsella’s intoxicated sophism is explicitly belied by the Constitution’s text, which literally gives Congress power to exercise exclusive legislation in all cases whatsoever over Washington, D.C.,—a power which was then later limited by the Second Amendment, which declares that the right of the people to keep and bear arms shall not be infringed. Yet he completely ignores the clause giving Congress this authority...assuming he has ever heard of it.

If there was any doubt that Kinsella’s driving concern is to maximize the power of local governments to tyrannize over people without their having any rescue from federal authorities, it is this. As I have said many times before, Kinsella’s faith is what Lincoln called the “absurd” doctrine that “if one man wishes to enslave another, no third man may object.” And this he calls by the name of liberty! There appears to be no limit to the number of words in the Constitution that he is willing to ignore in the service of his perverse ideological fixations. That a man who is willing to take such extreme steps to maximize the power of government to deprive us of life, liberty, and property, would describe himself as a libertarian lowers that perversity to the very bottom.

Incorporation and (substantive/procedural) due process

Terrence Watson at Fusionist Libertarian offers some thoughts on incorporation and due process which I think warrant a few more observations.

In my previous post I observed that all due process is substantive due process, and that so-called “procedural” due process is actually just a subset of substantive due process.  Since this runs against the legal consensus, it deserves more explanation. First, we have to keep in mind that the distinction between substantive and procedural due process is actually rather recent, and was devised by the New Deal generation, in its efforts to demolish what it derided as “substantive due process.” The term first appears sometime in the 1940s. Before then—during the heyday of so-called “substantive due process”—that term was not used. To its practitioners, it was simply “due process of law.” And that’s the way it ought to be.

Continue reading "Incorporation and (substantive/procedural) due process" »

June 27, 2008

California fire map

Here is the Google Earth map of the current California wildfires.

TechonDIGITAL: terrible service (and crooked?)

I recently tried to buy a camera from TechonDIGITAL. The camera was priced very reasonably at $185, but after placing the order, I received an email asking me to call their customer service number to confirm the order. I did, and the person on the line told me I had forgotten to order a battery, and perhaps I wanted to add a battery for another $100. I was skeptical and said I would check to see if I needed a battery and call back if so. No, he said, he had a better idea; if I bought the battery now, he would throw in all these extras—free camera bag, free tripod (you can bet these are crapola...). This set off my alarms, so I said I did not want a battery. Surprise! The next day, I get this email:

1134188

Dear:Timothy Sandefur,

We thank you for your order and appreciate you shopping with us .

Due to the product you ordered being out of stock for 6-8 weeks from today’s date. We regret to inform you that the order is canceled due to the product being on backorder. when or if we get the product again in stock soon will send you an email to place an order please do not resubmit your order again . sorry again and thanks for your understanding .

Sic, by the way.

Sure enough, their website still says it’s available, and when I called to ask about this, the person who answered was very belligerent and defensive with me, like he probably gets complaints like this frequently. “You just called to play around with me?” he demanded. He didn’t even bother pretending to be polite.

TechonDIGITAL has very poor customer service at least, and seems like it might be crooked. I strongly recommend not buying from them.

Update: I should have Googled them before buying; it was my fault. Turns out they are well known for crooked tactics.

More on incorporation under the 14th Amendment

A reader writes,

I found your most recent post on incorporation to be very intriguing, especially since I just finished taking Crim Pro three weeks ago (summer school), where we studied incorporation briefly.  Suffice it to say I took away from it that incorporation was more or less "tit for tat" (with the obvious exceptions of the 7th amendment and the grand jury requirement), and functioned as a sort of substitution, so that the 14th amendment simply imported the protection of the bill of rights against the states.

This is a very common and very clumsy understanding of the doctrine of incorporation; you might call it vulgar incorporation. It is, in fact, the way courts tend to view the subject today. (Note that my post was about how incorporation ought to work.) But it is not supported by the case law.

Continue reading "More on incorporation under the 14th Amendment" »

Results of martian wet-soil tests

Very cool:

In the wet chemistry experiment, water was mixed into the soil to produce Martian mud. Then the apparatus performed the same sorts of tests that gardeners use to test the condition of their soil.

The pH level was between 8 and 9, Dr. Kounaves said. The pH, or potential of hydrogen, reflects the concentration of hydrogen ions, or acidity, of a substance and usually varies between 0 and 14, with 7 considered neutral. (The water of Earth’s oceans, for comparison, has a pH of 8.2.) The experiment also found the presence of magnesium, sodium, potassium and chloride ions in the soil.

“There’s nothing about it that would preclude life,” Dr. Kounaves said. “In fact, it seems very friendly.”

Friday art


The Concord Minuteman by Daniel Chester French (photo by Lee Sanstead)

This statue, one of the great images of American gun ownership, is located in Concord, Massachusetts, where American minutemen retaliated against the redcoats who had moved through Lexington earlier in the morning of April 19, 1775, leaving several American militia men dead and wounded. As the British returned to Boston, American soldiers picked them off guerilla style. French, one of the greatest of American artists, completed the statue in 1874.

This statue should not be confused with the similar minuteman statue in Lexington, by Henry Hudson Kitson, completed in 1900.

June 26, 2008

How 14th Amendment incorporation really should work

There’s a lot of scholarly writing on incorporation, and this is not an attempt to encompass any of it; I just want to emphasize a point that gets overlooked in hasty discussions of the incorporation of constitutional rights to the states, which is being talked about a lot in the wake of Heller.

Continue reading "How 14th Amendment incorporation really should work" »