Maverick Philosopher

John Kerry on the First Amendment and 'Disinformation'

Unbelievable. And you say we are not in a war?

More proof that the Republic is hanging by a thread: Megyn Kelly on Kamala Harris.

UPDATE 9/30

It's war for sure. Sasha Stone. Elon Musk. Victor Davis Hanson. Matt Taibi.

Which side are you on?

Amendments or Addenda?

The Bill of Rights. Amendments or additions? A reasonable question and a good distinction.  Addenda. I owe the point and the distinction to James Soriano. It's obvious when you think about it, but the question hadn't occurred to me.

And always give credit where credit us due, else you'll end up like the Big Guy, a terminally unrepentant serial plagiarist and an 'inspiration' to such other 'presidents' as Claudine Gay.

Distinctions are the lifeblood of thought. 

Universal Suffrage

I wrote, on 4 March, 

The war is over the soul of America.  The question concerns whether we should (i) preserve what remains of America as she was founded to be, and (ii) restore those good elements of the system bequeathed to us by the Founders, while (iii) preserving the legitimate progress that has been made (e.g. universal suffrage), OR whether we should replace the political system of the Founders with an incompatible system which can be described as culturally Marxist.

As I was writing clause (iii) I realized that some to my Right, people I consider friends, whose intellect and judgment I respect, and with whom I agree on many fundamentals, would take issue with my endorsement of universal suffrage. They are against it. Two points in response.

The first is that the 19th Amendment, ratified 18 August 1920, will never be overturned.  The Amendment states, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex." And so the question whether female citizens should have the right to vote, while of historical and theoretical interest, has no practical importance whatsoever. 

The second point is that, even if it could be overturned, it ought not be. Now I concede to my friends on the Right that women as as a group are not as politically astute as men as a group.  Their political judgment is inferior to that of men. This is a fact, and a fact is a fact whether you like it or not. We conservatives stand on the terra firma of a reality antecedent to human wishes and dreams. 

What I have just asserted is enough to bring down the wrath of  many feminists upon my head. They will hurl the 'sexist' epithet at me. And I will reply: It can't be sexist if it is true, and it is true.  This is a special case of a general principle: It cannot be X-ist if it is true.  Candidate substituends for the variable include 'age,' 'race,' 'species,' 'able,' and others. Particularly knuckleheaded is the accusation of 'ableism.' 

I have said enough to establish my conservative bona fides.

Why shouldn't the 19th Amendment be overturned?

Yesterday, on C-SPAN, I watched Rep. Elise Stefanik (R-NY) rake Christopher Wray, FBI Director, over the coals. She did a superb job, a job as good as any man could do. So I put the question to my friends on the Right: Do you think that Stefanik should not have the right to vote and participate in the political life of the country?

To nail down my point, here is a list, off the top of my head, in no particular order, of just a few females  who are lot better politically than a lot of men I could mention:

Jeanine Pirro, Maria Bartiromo, K. T. McFarland, Tulsi Gabbard, Riley Gaines, Candace Owens, Mollie Hemingway, Tammy Bruce, Faulkner Harris, Diane West, Laura Ingraham, Ann Coulter, Heather MacDonald.

Will the friends to my Right dismiss these women as wholly unrepresentative outliers? Do they have arguments? What might they be?

Article IV, Section 4 of the U.S. Constitution

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion . . . . (emphasis added)

Whence it follows that Joseph L. Biden is in dereliction of duty, an impeachable offence.  Furthermore,

“No State shall, without the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” — Article I, Section 10, Clause 3 of the U.S. Constitution

“As each state will expect to be attacked and wish to guard against it, each will retain its own militia for it own defense.” — James Madison, speech at the Virginia Ratifying Convention, June 16, 1788

“This is not over. Texas’ razor wire is an effective deterrent to the illegal crossings Biden encourages. I will continue to defend Texas’ constitutional authority to secure the border and prevent the Biden Admin from destroying our property.”

That’s the message sent via X (formerly Twitter) by Texas Governor Greg Abbott on Tuesday.

Obviously, Governor Abbott remains resolute.

And every patriot stands behind him.

When the Exercise of Rights Contributes to their Loss

Civil courage and prudence are competing virtues. At times competition become collision.

Top o' the Stack.

The Constitutional Maverick

Richard A. Epstein:

The maverick takes issue with both modern liberals and modern conservatives because he alone refuses to abandon two key pillars of our classical liberal constitutional theory: limited government and strong property rights. The modern maverick thus works in the Lockean tradition that was ascendant during the founding period. This classical liberal approach should not be misconstrued to hold that all forms of legislation and taxation are illegitimate. The classical liberal is no hard-line libertarian, for she accepts the legitimacy of state power, even if she thinks that it is always an uphill battle to justify government limits on individual freedom. Stated otherwise, the classical liberal does not ask, as do modern liberals and conservatives, why any assertion of individual rights poses a challenge to democratic institutions. Rather, he insistently questions the extent to which democratic institutions may misuse political power to limit individual rights. The position is not geared solely to economic issues of private property and contractual freedom; it also extends to such key areas of human interaction as political speech and religious conscience.

Would a Fascist Want an Originalist on the Supreme Court?

First posted on 4 July 2018.

..............................................

Donald Trump is called many things including racist, misogynist, xenophobe, and fascist. Suppose he is a fascist. Then he is not a very good one. For he is about to nominate an originalist to the high court. A fascist, however, would not want an originalist on the court but someone who views the Constitution as a 'living' or 'open' document, one into which and out of which fascist ideas could be read.

Should we conclude that Trump is  a fascist who does not understand what fascism entails?  Or should we conclude that Trump is not a fascist?

Some will say that he is a proto-fascist, not one quite yet but soon to be one. No worries! If originalists dominate the court then fascism doesn't have a chance.

One could go on like this. If Trump is Hitler, why did he move the U. S. embassy from Tel Aviv to Jerusalem, and why is he for Second Amendment rights?

If he is the devil himself, why is he for religious liberty?

If he is the personification of all evil, then why . . . .

I am pretty sure the Dems' hyperbolic slanders will hurt them come November. So I warmly encourage them to keep 'em coming.

An INDIVIDUAL Right to Keep and Bear Arms

>>In District of Columbia v. Heller the Supreme Court held in 2008 that the District’s handgun ban violated the individual right to keep and bear arms. The opinion clarified that to “bear arms” means to “carry arms” and has no exclusive militia context. And it rejected the view that the right could be dismissed or diminished by judge-made interest-balancing tests.<<

 

Of course it is an individual right: my right to life is my individual, not collective, right to life and said right entails my individual right to defend my individual life. And of course if I have the right to bear arms, then I have the right to be armed outside my domicile. Obviously, I have a greater need for self-defense outside my domicile than within it.

 

Will leftists say that this is now 'settled law'? Or will they say that the 2008 ruling can be overturned?  If they say the latter, will they also say that Roe v. Wade can be overturned?

"The People are Supreme"

Thus read a protester's placard. Now that is rich!

The implication is that in a democracy the people decide, not nine black-robed elitists, when the whole point of overturning Roe v. Wade is to return the question of the legality of abortion to the states where -- wait for it --  the people will decide.

The Manipulative Rhetoric of Garrett Epps

Keith Burgess-Jackson on a law professor gone amok:

Two years ago this past month, law professor Garrett Epps published a short essay entitled “Common-Good Constitutionalism Is an Idea as Dangerous as They Come” in a high-brow literary magazine, The Atlantic. That he published his essay in this organ rather than, say, a law review suggests that he was trying to reach non-specialists. The result, I am afraid to say, is a disaster. The essay is too simplistic to be of any use to his fellow law professors, but too arcane and abstract for many or most of the magazine’s readers.

To Provoke a Pre-Emptive Crap Storm?

Is that why it was leaked?

...........................

A correspondent replies:

Yes, Bill, I believe so. Someone in Sotomayor's or Kagan's office. 

It was a call to action. They weren't going to let their side be blindsided.

The leaker will either be protected or, if caught, then lionized. For them, the end of Roe is the end of the world.  Roberts will do for Roe what he did for Obamacare. The homes of Alito et al. will be picketed, their occupants threatened to revise their opinion. The enemy's been planning for this as they have for the next election.

Sadly, our political opponents are indeed enemies. If you are one of us, broadly conservative and/or classically liberal, and you do not understand this, then you are a useful idiot. One of the reasons the destructive Left is so hard to defeat, despite the obvious lunacy of so many of their assertions and policies, is because of this very large group of useful idiots.  It includes roughly half of the Republicans in government, and a large segment of rank-and-file Democrats who live in the past, or for some other reason are oblivious to the threat the 'woke' folk pose to them, their progeny, their beliefs, their security, and their way of life. If you are not on the hard Left and you voted for Biden, then you are a  useful idiot. I have noticed, however, that people do not like being called idiots; adding the qualifier 'useful' does little to mitigate their umbrage.  For they  understand that they are being called useless to the cause of the Sane and the Reasonable.

Polylogism and Leftist Racism

Anthony Flood sends us to Charles Burris, Polylogism -- The Root of America's Divisiveness, Decline and Destruction.

History is repeating itself before our eyes. The widespread controversy surrounding President Joe Biden’s Supreme Court nominee Ketanji Brown Jackson as a “black woman” recalls the editorial in The Washington Times, “A Judge Too Far,” concerning President Obama’s earlier nomination of Judge Sonia Sotomayor for the Supreme Court.  The editorial perceptively observed:

“Judge Sotomayor seems to think that inherent racial and sexual differences are not simply quirks of genetics, but make some better than others. Consider her 2002 speech at the University of California-Berkeley School of Law:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” she said. “I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”

“She also accepted as potentially valid the idea that the “different perspectives” of “men and women of color” are due to “basic differences in logic in reasoning” due to “inherent physiological or cultural differences.”

The brilliant Austrian economist Ludwig von Mises, regarded as the greatest economist of the 20th Century, discussed this Marxist nonsense in his magnum opus, Human Action, under the category of polylogism. 

This is the bogus idea that the logical structure of the mind is different based on one’s class, race, ethnicity, national origin, gender, sexual preference, etc.

This skewed Marxist concept lies at the root of all “politically correct” notions of cultural relativism and multiculturalism fashionable in academia, the elite media, and critical race and legal theory circles today.

And if President Biden has his way, upon the highest court in the land.

This is more than the widely-accepted idea that our various life experiences shape our world view, or influence our value judgments in making ethical and moral decisions.

Again, polylogism specifically holds that the logical structure of the mind is different based on one’s class, race, nationality, gender, sexual preference, etc. There is no objective reality independent from these fixed determinative factors of causality.

The notion of a Constitutionally-driven independent judicial temperament or impartiality becomes impossible.

The rest is below the fold. 

Did you catch the exchange between Senator Ted Cruz and nominee Jackson? 

"For example, I'm a Hispanic man. Could I decide I was an Asian man — would I have the ability to be an Asian man and challenge Harvard's discrimination because I made that decision?" Cruz added.

Jackson replied that she could not respond to questions based on hypotheticals.

Lord help us.  Yet another indication that leftists are mendacious to the core. 

Dreher contra Buchanan on "All men are created equal."

Rod Dreher quotes Patrick J. Buchanan:

“All men are created equal” is an ideological statement. Where is the scientific or historic proof for it? Are we building our utopia on a sandpile of ideology and hope?

Dreher responds:

With that, Buchanan repudiates not only the founding principle of our Constitutional order, but also a core teaching of the Christian faith, which holds that all men are created in the image of God. 

I am with Dreher on this without sharing quite the level of high dudgeon that he expresses in his piece. 

I am always surprised when people do not grasp the plain sense of the "that all Men are created equal" clause embedded in the opening sentence of the second paragraph of the American Declaration of Independence. It cannot be charitably interpreted as a statement of empirical fact. If it were so interpreted, it would be false. For we all know, and certainly the Founders knew, that human beings are NOT equal as a matter of empirical fact either as individuals or as groups.

Suppose a statement can be interpreted in two ways. One way it comes out plainly false; the other way it comes out either true or plausible or not obviously untrue. Then what I understand the Principle of Charity to require is that we go the second way. 

For Buchanan to demand "scientific or historic proof" shows deep misunderstanding. For again, the claim is not empirical. Is it then a normative claim as Mona Charen (quoted by Dreher) seems to suggest? It implies normative propositions, but it is not itself a normative proposition. It is a metaphysical statement. It is like the statement that God exists or that the physical universe is a divine creation. Both of the latter statements are non-empirical. No natural science can either prove them or disprove them. But neither of them are normative.  They are factual statements, though not empirically factual.  (Observe also that a factual statement need not be true. 'BV has three cats' is a factual statement, indeed it is empirically factual. It is not a normative statement, and it is a statement that can be empirically confirmed or disconfirmed. But it is false.)

Note that the Declaration's claim is not that all men are equal but that all men are created equal. In such a carefully crafted document, the word 'created' must be doing some work. What might that be?

There cannot be creatures (created items) without a Creator. That's a conceptual truth, what Kant calls an analytic proposition. So if man is created equal, then he is created by a Creator. The Creator the founders had in mind was the Christian God, and these gentlemen had, of course, read the Book of Genesis wherein we read that God made man in his image and likeness. That implies that man is not a mere animal in nature, but a spiritual being, a god-like being, possessing free will and an eternal destiny. Essential to the Judeo-Christian worldview is the notion that man is toto caelo different from the rest of the animals. He is an animal all right, but a very special one. This idea is preserved even in Heidegger who speaks of an Abgrund zwischen Mensch und Tier. The difference between man and animal is abysmal or, if you prefer, abyssal. Man alone is Da-Sein, the 'There' of Being; man alone is endowed with Seinsverstaendnis, an understanding (of) Being.  But I digress onto a Black Forest path.  

Now if all men, whether male or female, black or white, are created equal by God, and this equality is a metaphysical determination (Bestimmung in the sense of both a distinctive determination and a vocation) then we have here the metaphysical basis for the normative claim that all men ought to be treated equally, that all men ought to enjoy equally the same  unalienable rights, among them, Life, Liberty, and the Pursuit of Happiness.  (We note en passant that these are negative rights!)

All men are normatively equal because they are metaphysically equal. They are the latter because they are spiritual beings deriving from one and the same spiritual source.  Each one of us is a person just as God is a person. We are equal as persons even though we are highly unequal as animals.

Without this theological basis it is difficult to see how there could be any serious talk of equality of persons. As the alt-righties and the neo-reactionaries like to say, we are not (empirically) equal either as individuals or as groups. They are absolutely right about that.   

Dreher is also right that the theologically-grounded equality of persons is "the founding principle of our Constitutional order," and thus of our political order.  Repudiate it, as Buchanan seems to be doing, and you undermine our political order.

What then does our political order rest on if the equality of persons is denied? 

Related: Sullivan is Right: Universalism Hasn't Been Debunked

Free Speech and the First Amendment

The free speech clause of the First Amendment to the United States Constitution protects the citizen's right to free expression from infringement by the government, not from infringement by any old entity.  My home is my castle; you have no First Amendment rights here, or at my cyber-castle, my weblog. So it is no violation of your First Amendment rights if I order you off of my property because of your offensive speech or block you from leaving stupid or vile comments at my website. It is impossible in principle for me to violate your First Amendment rights: I am not the government or an agent thereof.  And the same holds at your (private) place of work: you have no First Amendment rights there.

The Right to an Opinion

The right to express an opinion does not absolve one of the obligation to do one's level best to form correct opinions.  Note however that the legal (and moral) right to free speech guaranteed  to the American citizen by the First Amendment of the U. S. Constitution remains even if one shirks one's moral (but not legal) obligation to do one's best to form correct opinions.  

What the 2020 Election is About

"More than anything, this election is about President Trump." (Mara Liasson, NPR, 2/2/2020)

Not so! The election is a key engagement in the battle for the soul of America. It is not so much about Trump as it is about the defense of our constitutional republic. The Democrat party, in the control of the hard Left, aims to subvert our constitutional order.  They are taking aim at the Electoral College, the Second Amendment, and the First as well. For a leftist, dissent from their positions is 'hate speech.'  The Democrats have become illiberal. Mirabile dictu, conservatives are now the new (classical) liberals! We stand for individual liberty; they for an ever-more invasive State apparatus.

The Constitution herself is at risk. For despite their mendacious invocations, the Democrats do not care at all about the Constitution, as is evident from their vicious attempts at blocking the Kavanaugh appointment. They oppose the originalism that alone honors our great founding document. The Democrats are also assaulting bedrock American commitments such as limited government, the presumption of innocence, national sovereignty, the rule of law, the very notion of a citizen and the related distinction between legal and illegal immigration. The political weaponization of the impeachment provision of the Constitution is a spectacularly clear example of their destructive leftism. The Democrats embrace such outrages as sanctuary jurisdictions. I could go on.

So 2020 is not about Trump the man but about the preservation of the Republic. Trump is 'merely' carrying the fight to the Democrats, exposing them for what they are, and teaching fellow Republicans how to develop their political cojones and fight as they must if we of the Coalition of the Sane are to prevail.

A Bad Argument Against Originalism Refuted

This canard is often repeated: "We need a living constitution to govern a modern society."

In response, Neil Gorsuch distinguishes between MEANING and APPLICATION. The original meaning of the Constitution remains fixed; it is the range of applications that changes. Speech remains protected despite the fact that at the time of the founding electronic means of communication did not exist. (First Amendment). The Fourth Amendment still protects us against "unreasonable searches and seizures" despite the fact that there were no means of electronic surveillance in the early days of the Republic.

An example Gorsuch does not give, but I will, pertains to the Second Amendment. There were no automatic or semi-automatic firearms back then; hell, there weren't any revolvers either. But "the right to keep and bear arms" has the meaning now that it had then. It is just that the application or extension of the term 'arms' has widened.

I hope to refute other bad arguments against originalism later. See Neil Gorsuch, A REPUBLIC, IF YOU CAN KEEP IT, Crown Forum, 2019, p. 111. An excellent book and an excellent counter to leftist claptrap.

The Grave Danger to the Republic of 'Red Flag' Laws

Destructive Democrats now label the National Rifle Association  a 'domestic terror organization.' Mind-mannered Mike of Mesa is a member and receives their publications. His mail man, though, is a flaming lefty. The mail man reports Mike to the government as a domestic terrorist on the ground that anyone who is a member of a terrorist organization is a terrorist. ATF agents break into Mike's house in the wee hours and seize his one and only firearm, a semi-automatic pistol. A year later, Mike is able to get his gun back, but he must pay all court costs.

Not quite Nazi Germany, but getting there.

If Democrats call NRA members domestic terrorists, I call Democrats totalitarian proto-Nazi scum. The difference between the two labels is that my label applies.

Never forget that the Left's strategy is incremental: gun confiscation in violation of both the Second and Fourth Amendments.

The Democrat Party is now a hard-Left party. 

Susan Collins (R-Maine), Profile in Courage

Here is the full text of Senator Collins' speech before the U. S. Senate. (HT: Bill Keezer)

The analog of military valor in civilian life is called civil courage. Senator Collins has it. My impression is that some Republicans are finally learning from President Trump how to fight, as witness Senator Lindsey Graham's finest moment.

Vote. Confirm.

A powerful statement by Malcolm Pollack, at once both personal and objective. I recommend in particular the penultimate paragraph:

We who came of age in the latter half of the twentieth century have lived our whole lives in such ease and peace and prosperity that we have mostly forgotten, I think, how rare, and how precarious, order and peace and safety are — how easily they are lost, and what sacrifices, and what sense of duty and gratitude, are necessary to sustain them. We just take it all for granted — this astonishing edifice of law and tradition and culture and trade and agriculture and innovation and justice and security — as if it was simply a pre-existing and eternal feature of the world. We imagine, lately, that we can just pick at it as we please, pull pieces out of it and burn them, hack away at its foundations, rip out its beams and joists, and crack its pillars without causing it, someday very soon, to come crashing down on our heads.

One does well to recall the wisdom at Hosea 8:7: Sow the wind, reap the whirlwind.

And never forget who has the guns. Is that a threat? No, it's a warning. You do not want a civil war. You will not like it.

Please exercise your historically-informed imagination now so that you won't have to rely on perception later.

It's a War: The Democrats' Behavior Proves It

Let's begin with a very simple distinction between the behavior one would rightly demand of a judge who was adjudicating a dispute between two parties, and the behavior of a citizen defending himself against very serious but groundless accusations. From a judge one expects and demands impartiality.  The demand is reasonable and can be met because judges are not themselves parties to the disputes they mediate. A judge with an interest in the outcome must recuse himself.

But it is unreasonable in the extreme to expect a citizen who is defending himself from a scurrilous, potentially career-ending  attack to display a calm judicial temperament as if he were above the fray and not precisely being attacked. 

In fact, if Judge Kavanaugh had not defended himself with passion and righteous indignation, his enemies would have taken it as proof of his guilt. "You see, he is guilty! Any normal person would have vigorously contested the accusations brought against him!"

You can see from this just how vicious Senator Feinstein and her colleagues are. The simple distinction explained above is obvious and of course they understand it  They would deploy it themselves if it were to their advantage. They are not stupid; they are willing to play dirty if it  assures them of victory.  They are obviously out to stop the Kavanaugh confirmation by any means. Schumer has in fact said precisely that.

The hypocrisy is to preach the importance of impartiality while failing to practice it oneself. Feinstein and her gang are supposed to be impartially evaluating the nominee, not accusing him of impartiality in a matter in which it would be inappropriate for him to be impartial!

But it may be worse than hypocrisy. To preach impartiality is to have at least some  commitment to it. But there is increasingly little reason to think that the Dems are committed to the values we cherish. It certainly looks as if they want one thing only, power, any way thy can get it. And impartiality be damned.  If impartiality is to their power advantage, then they are impartial, if not, not.

They have one goal: power and total control. The Constitution, interpreted as written, stands in their way. That is why they will do anything to destroy the textualist/originalist Kavanaugh.

So it's a war. It's a war because there s no common ground.  One cannot compromise with people who will do anything to win and who reject such bedrock principles as the presumption of innocence.  

Dennis Prager: The Charges Against Kavanaugh Should be Ignored

This piece by Dennis Prager is sure to outrage the Left.  Prager takes a step back and uncovers an assumption that almost everyone else is making. The assumption is that IF the young Kavanaugh had groped Dr. Ford in the manner she describes, THEN that would be good grounds for non-confirmation.

But is the assumption true?

Suppose it could be shown that Brett Kavanaugh, 36 years ago, did to Christine Blasey Ford what she claims he did. That cannot be shown, of course, due to a lack of evidence, but just suppose.  (And if there is no evidence, then it is absurd to call for an FBI investigation. What would they investigate?) How does a youthful peccadillo nullify the rest of an impeccable life and distinguished career?  To believe that it does one would have to assume the following:

a) What a middle-age adult did in high school is all we need to need to know to evaluate an individual’s character — even when his entire adult life has been impeccable.

b) No matter how good and moral a life one has led for ten, 20, 30, 40, or even 50 years, it is nullified by a sin committed as teenager.

Prager then comments: 

No decent — or rational — society has ever believed such nihilistic nonsense.

Now let ME take a further step back. 

What is this whole controversy really and fundamentally about? Is it about Kavanaugh's moral fitness to serve on the Supreme Court?

Obviously not. It is not about his moral fitness, but about his failure to meet an ideological litmus test.  The Left cannot abide the thought of an originalist/textualist taking over the Justice Anthony Kennedy SCOTUS swing slot. For with Kavanaugh the conservatives would have the upper hand. This also explains why Gorsuch, the Scalia replacement, was confirmed with relative ease.

Suppose Kavanaugh were a leftist who believed in an 'open' or 'living' constitution. Would the DEMS be troubled by the baseless allegation, 36 years after the alleged 'fact,' of a youthful bit of bad behavior?  Of course not! They would be protesting with the same sorts of arguments now being used by Republicans.

So let's all try to be honest for a change. What is really going here is an important  battle in the war for the soul of America. Will we allow her to be "fundamentally transformed" by the Left or will we preserve her as she was founded to be?

To achieve the latter, the Constitution must be honored and applied in its original meaning.  Kavanaugh's is not the originalism of original intent of the Founders, but the originalism of original public meaning. 

As for Christine Blasey Ford, she is being used as tool by the Dems for their ideological purpose.  

Kavanaugh is in Like Flynn

And what little credibility the Dems had left is out like Stout. (G. F. Stout?)

Here:

Opponents of Kavanaugh lost the fight when they lost their marbles. His foes on the Senate Judiciary Committee and allied activists ensured that opponents to the nomination appear to be a pack of wild cranks. 

[. . .]

Not only did the outbursts seem uncivil and destructive of Senate decorum, they may have violated federal criminal laws — including 40 U.S.C. 5104 — against disrupting congressional proceedings. Sen. Dick Durbin (D-Ill.), instead of criticizing the criminal bedlam, called it “the noise of democracy.”

There's that word 'democracy' again! The chuckleheads need to define it or drop it. What do the Dems mean? Mob rule? The rejection of all procedural rules? The treating of the Constitution as if it were a tabula rasa?

Do Dicky Durbin and his ilk think the word has a talismanic power? Please do tell us what you mean, Dicky. 

Then Sen. Cory Booker (D-N.J.) made his contribution.  With great fanfare, Booker announced his “Spartacus moment,” daring to disclose committee confidential documents that revealed Kavanaugh’s opinions about racial profiling. Of course, breaking rules appeals to the disruptive gang in the gallery, so Booker’s play seemed well-designed.

Yet, in execution, Booker’s plan was a disaster for Kavanaugh foes. Not only did Kavanaugh not support racial profiling, the documents were not subject to committee confidential restraints in the first place.

And then there is an important point I make in a very fine entry that I warmly recommend for your perusal, namely, that there is no such thing as racial profiling.

Robert Bork's Originalism

Here you will gain some insight into the context of the Kavanaugh nomination fight. Excerpts:

In Bork’s view, the Constitution derives its moral authority, as law, from the fact that the states ratified it. Accordingly, its text should be interpreted as it was understood at the time of its adoption. Judges have no warrant to expand upon the constitutional text—or to invent new rights—just because they favor the result in a particular case. Judicial power, unless constrained by the Constitution’s original meaning, will become excessive, usurping power properly reserved to the elected branches, or the people. When judges exceed their proper role, by recognizing “liberties” not credibly drawn from the constitutional text or history, they diminish citizens’ most important freedom: the right to govern themselves in a representative democracy.

[. . .]

Fidelity to the law—judicial restraint—is controversial only if one believes that courts should be playing a policymaking role. If the Supreme Court is free to reach decisions based on nothing more than the individual justices’ predilections, the potential beneficiaries of Supreme Court lawmaking will be highly motivated to support or oppose nominees solely based on their political views, rather than their integrity, competence, or commitment to the rule of law. And it is far easier for liberal-interest groups to influence the composition of a nine-member court than it is to control the Congress, the presidency, and the democratically elected governments of the 50 states.

Leftist Justices Don't Like the Law

If you value the rule of law, you absolutely must oppose the hard-Left Democrat Party. Andrew Klavan:

In general, the leftist minority on the [Supreme] court has shown itself no friend to the law. It really is disturbing. In Hawaii, only the five conservatives agreed that the president had the legal power to bar travel from certain countries he deemed dangerous. Really? This is what the law says:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

You don't have to be a lawyer to find that crystal clear. And you don't have to like Trump's so-called "travel ban" to see he has the legal power to implement it. And yet, in a dissent, leftist Sonia Sotomayor claimed that Trump's anti-Muslim campaign rhetoric somehow overrode the facts of the case. In other words, what would have been legal for a president she liked was not legal because . . . Trump.

If the rule of law can be overridden by the emotions of the people, the machinations of officials or the prejudices of courts, we can no longer depend on equal treatment or representative government. Given the fact that most of the above cases were decided by only one vote, news of Justice Anthony Kennedy's retirement from the court comes as something of a relief. Kennedy has been an unreliable vote for liberty and if Trump can put another Gorsuch-like constitutionalist in there, all of our freedoms will be safer.

It is not too much to ask the Supreme Court to support the rule of law.

For a leftist like Sotomayor, the U. S. Constitution is a tabula rasa upon which 'justices' of her ilk feel entitled to write any leftist rubbish they like.

But we got lucky and Trump won. We are now poised to get a second originalist (after Gorsuch) on the high court.  Brace yourself for the barking and borking that is about to begin. 

And then there is Ruth Bader Ginsburg who, at age 85, cannot be long for this earth. Do I wish her dead? No, I wish her off the high court.

I am reminded of the doctrine of double effect. If I meet your lethal attack with lethal force, my intention is not to kill you, but to stop your attack. And this despite the fact that my defense, to be effective, may reasonably be supposed to issue in your death.  I cannot stop you without killing you, but my intention is not to kill you but to stop you.

Is that sophistry? I don't think so. 

The analogy to Ginsburg to straightforward: I don't want her dead, I want her off the court, even if her dying is the only eventuality that will lead to the desired result.

Details on double effect here.

SCOTUS Rules 5-4 to Uphold 'Muslim' Travel Ban

Yet another victory for President Trump and for common sense. And yet another embarrassment for the Never-Trumpers who refused to support Trump and who, by their refusal, indirectly supported Hillary who would never have supported any such travel ban.

And of course, if the Never-Trumpers had their way, the composition of the Court would not have been favorable to conservative rulings.

(Once more: a Never-Trumper is a conservative of some sort or other who opposes Trump. Bill Kristol for example. Remember him? Every Never-Trumper is an Anti-Trumper, but not conversely. Is this just an arbitrary stipulation on my part? No. This is the way the terms are used by those in the know who value clarity of thought and the distinctions that support it.)

Predictably, Associate Justice Sonia Sotomayor wrote a dissent that is rather less than intelligent:

“This repackaging does little to cleanse [the policy] of the appearance of discrimination that the president’s words have created,” she said. “Based on the evidence in the record, a reasonable observer would conclude that the proclamation was motivated by anti-Muslim animus.”

On the contrary, a reasonable observer would conclude that Sotomayor should not be sitting on the Supreme Court. I'll give her this, though: she has a beautiful name.

Imagine the composition of the Court after eight years of Hillarity. 

Seeing as how we are in the vicinity of Islamist issues, I now refer you to William Kilpatrick's latest,  Islamization in the Schools.

The Second Amendment, First Principles, and the Right of Revolution

Trigger Warning! Likely to cause snowflake meltdown.

Edward J. Erler offers one of the best explanations of the Second Amendment I have ever read. Clear, scholarly, and right-headed. The folly of Justice Stevens is exposed.  An excerpt, with bolding added:

Furthermore, the Declaration specifies that when government becomes destructive of the ends for which it is established—the “Safety and Happiness” of the people—then “it is the Right of the People to alter or to abolish it, and to institute new Government.” This is what has become known as the right of revolution, an essential ingredient of the social compact and a right which is always reserved to the people. The people can never cede or delegate this ultimate expression of sovereign power. Thus, in a very important sense, the right of revolution (or even its threat) is the right that guarantees every other right. And if the people have this right as an indefeasible aspect of their sovereignty, then, by necessity, the people also have a right to the means to revolution. Only an armed people are a sovereign people, and only an armed people are a free people—the people are indeed a militia.

On Opposing a Dangerous Ideology that is also a Religion

This article by William Kilpatrick bears on my ongoing conversation with a Canadian philosopher about Islam, religious tests, and constitutional interpretation. Last exchange here.  I'll pull a few quotations from Professor Kilpatrick and add some comments.

The idea of opposing dangerous ideologies is not foreign to Americans, but the idea of opposing an ideology that is also a religion is more problematic. It has become increasingly problematic now that we live in an era in which merely disagreeing with another’s opinions is tantamount to a hate crime.

But obviously, to dissent from a proposition is not to hate a person.  Nor is dissent on the part of the dissenter a sign of mental malfunction. Liberals who would smear Kilpatrick by calling him an 'Islamophobe' are either ignorant or vicious. Ignorant, if they do not understand that a phobia is an irrational fear. Vicious, if they mean to silence such a truth-teller by questioning his sanity.

The U.S. Constitution in the first and second clauses of its First Amendment guarantees freedom of religion. But does Islam fall under this protection? Ought there be freedom of religion for a religion that seeks to eliminate every other religion? Obviously not. The Constitition is not a suicide pact. I argue this out in painful detail in my last exchange with the Canadian.

I don't deny that Islam is a religion. It may even be a way to God for some who know of no better Way. (The allusion is to via, veritas, vita.)But Islam is just as much, if not more, a political ideology that seeks to subvert the principles and values of the American founding. Let us note en passant that this explains what would otherwise be very hard to explain, namely, why the Left is in cahoots with Islam. For the Left too is out to subvert said principles and values. Islamists must view leftists as useful idiots who will be sent packing to the realm of the black-eyed virgins should the former gain the (knife-wielding) upper hand. Leftists are in for a surprise if they think that they can use Islamists for leftist purposes.

I feel a rant coming on, so back to the sober Irishman:

Under Pope Benedict XVI there were signs—such as his Regensburg Address—that the Church was developing a more realistic view of Islam. But whatever ground was gained by Benedict was given up by Francis. Indeed, it seems fair to say that under Francis, the Church’s understanding of Islam regressed. Perhaps the most glaring example of this regression can be found in the Pope’s assertion that “authentic Islam and a proper reading of the Koran are opposed to every form of violence.” It’s hard to imagine any of his predecessors or any of their advisors making a similar claim.

Holy moly! Could Bergoglio the Boneheaded be that benighted?  Yes, take a gander at this:

By contrast, Church leaders and Pope Francis in particular, have become, in effect, enablers of Islam. Pope Francis has denied that Islam sanctions violence, has drawn a moral equivalence between Islam and Catholicism (“If I speak of Islamic violence, I must speak of Catholic violence”), and has campaigned for the admittance of millions of Muslim migrants into Europe. Moreover, he has criticized those who oppose his open borders policy as hard-hearted xenophobes. In return for his efforts, he has been publicly thanked by several Muslim leaders for his “defense of Islam.”

One might be tempted to use the word “collaborator” instead of “enabler.” But collaborator is too strong a word. In its World War II context, it implies a knowing consent to and cooperation with an evil enterprise. It seems clear to me that the pope and others in the hierarchy are enabling the spread of an evil ideology; however, it’s not at all clear that they understand what they’re doing. Francis, for instance, seems to sincerely believe that all religions are roughly equal in goodness. Thus for him, the spread of any religion must seem like a good thing. It’s an exceedingly naïve view, but one that seems honestly held.

Related: Pope Benedict's Regensburg Speech and Muslim Oversensitivity

The Constitution, Reason, and Abstract Principles

This entry continues the 'religious test' discussion. (Last installment here.) The Canadian writes,

I agree that there's no incoherence in a statement such as "(1) The Constitution guarantees  freedom of religion and disallows religious tests.  (2) The Constitution guarantees these things subject to the proviso that the religion in question is compatible with the principles of the American founding."  But why is the most reasonable interpretation one that projects such a proviso on to the text?  What are the criteria for a reasonable interpretation?  On the one hand, a reasonable interpretation might be one that results in a constitution that reasonable people could accept.  Naturally, if this is the criterion, no reasonable interpretation can produce a constitution that, in practice, would create a society where that same constitution would be destroyed.  On the other hand, it might simply be one that's adequately supported by the textual evidence (and other evidence, e.g., reasonably hypotheses about the authors' intentions).  Or maybe a reasonable interpretation is subject to both constraints.  In any case there is a tension between the two.  As you say, there's really no good textual evidence (or any other kind, as far as I know) to indicate that the Constitution really does implicitly limit the scope of religious freedom so as to preclude the freedom to practice traditional Islam, or that it limits the scope of 'No religious test' so as to allow for tests with respect to Islam.  I'd argue that a reasonable interpretation in the second sense--the most reasonable one, in that sense--is unreasonable in the first sense.  

"What are the criteria for a reasonable interpretation?" I agree that there is no evading this difficult question. One answer is that a reasonable interpretation is an internally coherent one.  The First Amendment guarantees the "free exercise" of religion and "freedom of speech," inter alia. Now if "no religious test" (Article VI, section III) is interpreted in so latitudinarian a fashion as to allow Sharia-supporting Muslims to gain political power, then we are on the road to an internal contradiction.  For these Muslims, once in power,  will of course try to shut down the free exercise of religions other than Islam, and they will attempt to prohibit freedom of speech if it involves any criticism, no matter how respectful, of Muhammad or of any aspect of their religion. They will have used the Constitution to destroy the Constitution.  They will have exploited our freedom of religion to eliminate freedom of religion, and our freedom of speech to eliminate freedom of speech.

It seems to me that the Constitution cannot be interpreted so as to allow the emergence of the following logical contradiction:

a) Under no circumstances shall (i) the freedom to practice the religion of one's choice (or to refrain from the practice of any religion) be prohibited by the government, or (ii) the freedom to express one's view publicly be abridged.

b) Under some circumstances (e.g., when enough Muslim fundamentalists gain power) the freedom of religion and the freedom of speech many be prohibited and abridged.

Note that the (a)-(b) dyad is logically inconsistent: the limbs cannot both be true.  What we have here is a strict logical contradiction.

But to embrace a logical contradiction is the height of unreasonableness. 

I conclude that to interpret the Constitution in such a way that it allows for the emergence of the above contradiction is unreasonable. The solution is obvious to me: one cannot allow a destructive political ideology such as Islam to count as a religion for purposes of Constitutional interpretation.  I am conceding that Islam is a religion and not a mere political ideology masquerading as a religion, and I am conceding that it is a religion in its own right and not a Christian heresy; the point is that it is a religion-cum-political ideology that is incompatible with the principles and values of the American founding.

Therefore, Islam ought not count as a religion when it comes to interpreting the Constitution. It may well be a way to God for those brought up on it and who know no better way, and it deserves respect for that reason. But this is no reason to abstract from its totalitarian and theocratic political nature, a nature at war with our political principles.

The Canadian continues:

In any case, I think that for your argument you need the first notion of reasonable interpretation.  But then there's a problem:  Leftists, whose ideas about reasonable political principles are very different from ours, can now argue on a similar basis that we should just ignore the seemingly plain meaning of the Constitution in cases where it conflicts with their values.  For instance, they can argue that since it's just not reasonable to let citizens buy AR-15s, the 2nd Amendment must be interpreted in such a way that citizens don't have that right.  That seems worrisome.  If there isn't even a generally agreed meaning for the constitution, the only way to politically resolve such disagreements is by some kind of debate over ultimate aims or values; but I know you agree with me that that isn't likely to happen either.  So it seems wise to insist that the constitution's meaning is the meaning of the text, not the meaning that we think it would have or should have in order to be most reasonable.  But then we're back to the problem that the text just doesn't seem to exclude Islamic freedom of religion, or to allow for a "religious test" in that case--or even to exclude the possibility that the Constitution is just internally inconsistent in some respects...  

In many cases there is no "plain meaning."  The meaning has to be 'excavated.' Does "establishment of religion" have a plain meaning in the First Amendment? (That's a rhetorical question.) "Congress shall make no law respecting an establishment of religion . . . ."  The meaning is open to interpretation.  Or take the Second Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Does 2A bear its meaning on its sleeve? Of course not. What is the Militia? Is the right individual or collective? Does the initial clause supply a reason, or the only reason, in justification of the right to keep and bear arms? I have argued elsewhere that it supplies a reason, not the only reason. I am sure many if not most would disagree.

So I deny the Canadian's assumption that the Constitution has a plain meaning that can just be 'read off' the text. There is no avoiding interpretation in the light of principles that are not themselves articulated in the Constitution. The Law of Non-Contradiction, for example, is not stated in the Constitution. We bring that principle to the text, and reasonably so.  

Or consider the Principle of Charity in interpretation. To save keystrokes I won't formulate the principle.  My astute readers know more or less what it is. Well, does "All men are created equal" in the Declaration have a plain meaning?  There are benighted souls who think it implies the empirical equality of all human beings.  But this violates the Principle of Charity since if the declaration in the Declaration were so interpreted it would come out false! The Charity principle, however, is not to be found in any of the founding documents; we bring it to the text and we do so reasonably.

There is no avoiding interpretation. The text does not have a plain meaning. The other extreme, however, is far worse. There are those who say that the Constitution means whatever SCOTUS says it means.  But then there is no text; there is a tabula rasa upon which people in black robes write whatever they want.  The most SCOTUS can do is decide upon an enforceable meaning among candidate possibilities that find support in the text.  That alone is the reasonable view.

For example, are 2A rights collective or individual? It was decided that they are individual. SCOTUS in this decision came to the 'right' decision. Yes, my use of 'right' is tendentious. More on this problem below.

What I am saying, then, is that there is a text, not a tabula rasa; the text has a meaning; the meaning is not obvious; the meaning is subject to interpretation in the light of principles brought to the text.

But whose principles are these?  Those of a reasonable person. But what constitutes reasonableness? Here is where the crunch comes, as my Canadian interlocutor fully appreciates.  SCOTUS has the power to lay down the law and enforce an interpretation of the Constitution.  But who has the power to decide what the principles of rationality are? Logically prior question: Are the principles of rationality matters of decision at all?

The Canadian concludes:

We might be back to a recurring deeper disagreement here.  I don't think that any system of abstract principles and values is enough to provide a framework for a workable society.  I think some kind of pre-rational or pre-conceptual horizon of meaning and practice and natural community is the basis; explicit principles and values have a role, but only when they're understood by everyone to operate within that specific cultural world.  The principles of "no religious test" or "freedom of religion" were just fine when they were only being applied to a fairly small range of fairly similar religions, practiced by relatively similar people.  (And, sure, there were always some who were not so similar--Africans, Amerindians--but they were small in number and had no real influence.)  Once every religion on earth was included in American society, that was bound to create insoluble problems.  Of course, one option is to simply say that there will be freedom of religion for a specific list of religions, and only those ones.  But that seems contrary to other traditional American principles.  I suspect that the very idea of "religion" that we in the west tend to take for granted is really an artefact of our specific religious and cultural heritage.  There is probably no useful general account of "religion" across all human cultures.  So it would be unwise to propose any kind of freedom for  that kind of thing. 

I agree that abstract principles and values are not enough. They have to reflect a (temporally) prior pre-conceptual shared understanding that is taken for granted. The principles and values cannot be imposed ab extra, but must be a sort of distillate or articulation on the conceptual plane of what is already tacitly understood and accepted at the pre-conceptual level.  Otherwise we will argue about the principles.

Argument about first principles is the province of philosophy and is legitimate there. In philosophy, nothing is immune to scrutiny. I should think that 'nothing immune to scrutiny'  is a constitutive rule of the philosophical 'game' or enterprise.  But if our politics becomes a philosophical free-for-all, then we are in trouble. 

There is no place for dogmas in philosophy. But in politics and religion we seem to need them. We need propositions that are unquestionably accepted.

For example, if we don't all accept that there is a  sense in which we are all equal, equal as rights-possessors, then we are in deep trouble. And if we don't all accept that certain ideologies such as Islam are incompatible with the principles enshrined in the U. S. Constitution, then we are in deep trouble.  Examples are easily multiplied.

I think we agree on why we are in the mess we are in. As you put it, "Once every religion on earth was included in American society, that was bound to create insoluble problems."   But benign non-Christian religions such as Buddhism are not the problem. The problem is Islam.  The solution is extreme vetting of immigrants from Muslim countries.  "Of course, one option is to simply say that there will be freedom of religion for a specific list of religions, and only those ones.  But that seems contrary to other traditional American principles."

I disagree. Which traditional American principle are you referring to?  Don't tell me "freedom of religion." Islam is not a religion in a sense that could allow it to be on a list of acceptable religions given American principles.

Can a multi-cultural society flourish?  There is reason to be skeptical. A society cannot flourish without shared principles and values. But the latter presuppose and grow out of a shared public culture.  Acquiescence in and assimilation to that shared culture -- Graeco-Roman and Judeo-Christian -- must be demanded of all would-be immigrants.  Otherwise we will break apart and become easy pickings for foreign aggressors.

I suspect it is already too late to turn things around peacefully. Civil war is a real possibility.

More on "No Religious Test"

A Canadian reader comments and I reply:

I've been thinking about the problem of interpreting "no religious test" in light of your post.  It's actually a very difficult problem!  I'm almost convinced the correct response is that, unfortunately, if the Constitution is interpreted correctly then fundamentalist Muslims do indeed have the right to hold public office--given the most natural and reasonable interpretation of word meanings and even taking into account the likely intentions of the founding fathers, the history of legal interpretation, etc.  It's very hard to get around this.  Maybe rather than saying that the Constitution is not a suicide pact on any sane interpretation, we have to say that a sane person would reject both suicide pacts and some parts of the US Constitution.

I grant that it is a very difficult problem, and I am aware that few will be convinced by what I wrote earlier. Ask anybody what Islam is and he will tell you that it is a religion. And then, given that

. . . no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.(Article VI)

it seems to follow via some uncontroversial auxiliary premises that no Muslim shall be barred from running for office simply because he is a Muslim. 

But of course among those Muslims are those who have no intention of assimilating and accepting our values but instead seek to impose Sharia on us thereby rejecting our values and principles and subverting our system of government.

So the question I would put to my fellow citizens is: Are you comfortable with an interpretation of the Constitution that allows for its elimination and the values and principles it enshrines?

I am not.

There are those who will say: let anyone immigrate from anywhere and then let the people who have immigrated decide what they want. They call that democracy, and they are all for it.  The people are the residents within certain geographical borders, and residency constitutes citizenship. If the residents want blasphemy laws, then we shall have blasphemy laws.  

You point out that Islam is not just a religion but also a political ideology.  But does that really help?  It still is a religion, and if the Constitution forbids any "religious test", without ever saying anything about the scope of "religion", the most natural interpretation is that even religions that double as political ideologies--most religions, really--are subject to the "no religious test" rule.  You say that we could declare Islam an inadmissible religion, but then wouldn't effectively mean that the Constitution is self-contradictory?  On the one hand, there is to be freedom of religion and no religious test--the subject here being surely just religion in general.  On the other hand, only some religions are protected by the "no religious test" rule, and for other religions there can be a religious test after all.  That seems incoherent, no?

Islam is a religion, but not a religion in the sense in which Hinduism, Buddhism Judaism, and Christianity are religions. Will you grant me that? Or must I argue it out?  

There is no contradiction or incoherence such as you imagine. I take it you find no incoherence in what the logic books call exceptive propositions. For example, "All citizens of the United States are guaranteed freedom of religion except those whose religions are incompatible with the values and principles of the American founding." The following propositions are logically consistent. (1) The Constitution guarantees  freedom of religion and disallows religious tests.  (2) The Constitution guarantees these things subject to the proviso that the religion in question is compatible with the principles of the American founding.

Now the Constitution does not contain these formulations.  But we will agree that the document is subject to interpretation. My claim is that it is most reasonable interpreted along the lines I have suggested.

As for incoherence, I should think that your account is more justly charged with it. A constitution that allows for its own subversion is incoherent if not strictly self-contradictory in the logical sense.  The provisions of such a constitution do not cohere with its own continued existence.

Actually I don't know that the idea of a church/state or religion/politics distinction will make sense if we allow that some religions are also political ideologies.  If the two can be separated, wouldn't that mean that the religions that are also political must be either banned or else somehow reformulated so that they're only religious?  Otherwise, the effect would be to prevent the normal or traditional practice of those religions--since normally or by their nature they'd function as political entities.  But then wouldn't that be incompatible with the ideal of freedom of religion?  I don't know.  Just some rambling thoughts.  The issue seems very confusing.  The US Constitution was never meant to apply to this bizarre multicultural situation that's been induced.  

But why on earth would you want the normal or traditional practice of (radical) Islam in the U. S. , Canada, France, the West generally?  I know you don't want that.

The Founders figured something out. They figured out that a modicum of civil peace can be had if government is kept limited in scope and kept separate from religion.

Freedom of religion, like freedom of speech, and like toleration, has limits.  As you know, Islam does not recognize freedom of religion. You either convert, accept dhimmitude, or are put to the sword. It is therefore entirely reasonable to place restrictions on freedom of religion and ban politically subversive religions.

A commitment to freedom of religion becomes incoherent and suicidal when it is taken to imply freedom for all religions including those that reject freedom of religion.  Similarly for freedom of speech and toleration. A sane toleration must be intolerant of the intolerant.

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"No Religious Test"

"No Religious Test"

 In Article VI of the U. S. Constitution we read:

. . . no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Does it follow that the U. S. Constitution should be so interpreted as to allow a Muslim citizen who supports sharia (Islamic law) to run for public office?  No!  For the same Constitution, in its First Amendment, enjoins a salutary separation of church/synagogue/mosque and state, though not in those words.  Sharia and the values and principles enshrined in the founding documents are incompatible.  On no sane interpretation is our great Constitution a suicide pact.

It is important to realize that Islam is as much  an anti-Enlightenment political ideology as it is a religion.  Our Enlightenment founders must be rolling around in their graves at the very suggestion that sharia-subscribing Muslims are eligible for the presidency and other public offices. 

Many assume that no restriction may be placed on admissible religions for the purposes of the implementation  of Article VI.  I deny it. A religion that requires the subverting of the U. S. Constitution is not an admissible religion when it comes to applying the "no religious Test" provision. One could argue that on a sane interpretation of the Constitution, Islam, though a religion, is not an admissible religion where an admissible religion is one that does not contain core doctrines which, if implemented, would subvert the Constitution.

Or one might argue that Islam is not a religion at all.  Damn near anything can and will be called a religion by somebody.  Some say with a straight face that leftism is a religion, others that Communism is a religion.  Neither is a religion on any adequate definition of 'religion.'  I have heard it said that atheism is a religion.  Surely it isn't.  Is a heresy of a genuine religion itself a religion?  Arguably not.  Hillaire Belloc and others have maintained that Islam is a Christian heresy.  Or one could argue that Islam, or perhaps radical Islam,  is not a religion but a totalitarian political ideology masquerading as a religion.  If an X masquerades as a Y, then the X is not a Y. How to define religion is a hotly contested issue in the philosophy of religion. 

The point here is that "religious" in ". . . no religious Test shall ever be required" is subject to interpretation.  We are under no obligation to give it a latitudinarian reading that allows in a destructive ideology incompatible with our values and principles.

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A Modest Proposal: Revise the Second Amendment

John Paul Stevens today in the The New York Times called for  the enactment of laws "prohibiting civilian ownership of semiautomatic weapons" and beyond that, as a "more effective and more lasting reform," the repeal of the Second Amendment.

(I wonder if the good justice understands that semi-autos include most handguns owned and carried by Americans today, and that among these pistols there is the low-caliber .22. Does Stevens propose that the existing stock be confiscated? Is he willing to countenance a huge black market?)

Justice Stevens considers the Second Amendment a "relic of the 18th century" with its talk of "a well-regulated militia." Let us assume, arguendo, that he is right and that the Second in its original formulation, and despite District of Columbia v. Heller, does not recognize an individual citizen's right to keep and bear arms.

Well then, a reasonable course would be to strip out the archaic language and bring the Second Amendment up to date. Not repeal simply, but repeal and replace with something better.

How might it go?

Because the right to life entails both the right to self-defense and the right to the appropriate means of self-defense, the right of the people to keep and bear arms shall not be infringed.

My proposal is both modest and reasonable and in keeping with American values and traditions.  Not only that, it throws a sizable sop in the direction of those leftists who support a so-called 'living constitution.'  Perhaps we ought to update the whole constitution, but not along destructive leftist lines which have little to do with our values and traditions, but along sound, salutary conservative lines.

Does my eminently reasonable proposal have a chance? Of course not.  How about Justice Stevens'? I wouldn't put money on it.

What I will do is buy more guns and ammo. And you should too. 'Voting' with one's wallet is much more effective than voting. Fund the Right, defund the Left.  Money is what gets people's attention. Money and the power that emanates from the barrel of a gun.

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Is Gun Ownership a Constitutionally Protected Right?

It is important to distinguish between rights and constitutionally protected rights. The right to life, for example, is a natural right. Its existence does not depend on anything of a conventional nature such as a constitution.  We have the right whether or not it is constitutionally protected. Our great constitution protects our rights; it does not confer them. You can say that our rights come from God, if you like, or you can say they come from Nature. But the main thing for practical purposes is to realize that our rights are logically antecedent to human decisions, compacts, legislation, and the like. 

The right to life generates the right to defend one's life and in consequence the right to the means of self defense. The right to the means of self-defense is protected, not conferred, by the Second Amendment to the U. S. Constitution. As I said, that right is logically antecedent to constitutions and such. It follows that the question whether or not said amendment protects an individual citizen's right to keep and bear arms is a question of constitutional interpretation that is strictly secondary to the question of whether the individual citizen has a right to the means of self defense. Of course he does, as I have argued.

Strictly secondary, but still important. Eugene Volokh  argues in a short (4:16) Prager U video that the individual citizen's right to keep and bear arms is constitutionally protected. 

If destructive leftists were to repeal the Second Amendment then, strictly speaking, a Second Amendment remedy for this outrage would not be available, but a remedy would be available nonetheless, namely, the overthrow of the leftist tyrants. That would of course require guns. Curiously, then, we need guns not only to protect our rightful gun ownership, but also to protect the constitutional protection of this ownership!

We need guns to: protect our property including our guns; protect our lives and liberties from criminals, terrorists, and rogue elements in the government; fruitfully intimidate destructive leftists so as to insure that they behave properly; protect the Constitution including its 2A protection of our gun rights.

Under the rubric 'protect lives and liberties' comes the right to free speech and the right to protect free speech. For that too guns are needed. Leftists are liberty-denying scum and you must never underestimate their capacity for vicious and totalitarian behavior. 

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Sorry Hillary, It's Not About Hunting

John Daniel Davidson:

Here it must be said that the Second Amendment was not meant to safeguard the right to hunt deer or shoot clay pigeons, or even protect your home and family from an intruder. The right to bear arms stems from the right of revolution, which is asserted in the Declaration of Independence and forms the basis of America’s social compact. Our republic was forged in revolution, and the American people have always retained the right to overthrow their government if it becomes tyrannical. 

[. . .]

That might sound academic or outlandish next to the real-life horror of a school shooting, but the fact remains that we can’t simply wave off the Second Amendment any more than we can wave off the First, or the Fourth, or any of them. They are constitutive elements of the American idea, without which the entire constitutional system would eventually collapse.

The aim of the Left is to subvert the American constitutional order. This explains why leftists never miss an opportunity to attack the Second Amendment which is the concrete back-up to the First and the others.  A school shooting is a wonderful opportunity for them to recruit schoolchildren and bleeding-heart know-nothings as useful idiots for their cause.

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Bill Clinton's Impeachment

I heard Representative Jackie Speier (D-California) say on Face the Nation this morning that former U. S. president William Jefferson Clinton "faced impeachment."

Not so. He was impeached. What he faced, but did not suffer, was removal from office. 

Impeachment is not the same as removal from office. Impeachment is analogous to indictment in regular court proceedings. The House of Representatives votes to impeach, and then the Senate conducts the trial. Clinton was acquitted of the charges brought against him, perjury and obstruction of justice.

You would expect a  member of Congress to know that. But then she's a Dem . . . or maybe she just misspoke.

The trouble with the Democrat Party is that so many of its leading 'lights' are dimwits, Nancy Pelosi heading the list. What gives this airhead such staying power? Answer: a preternatural ability to raise money.

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Free Speech: PragerU Sues Google

It is surely an outrage that Google would limit access to PragerU videos on YouTube given their high quality and educational value. So it is good news that Dennis Prager is punching back with a lawsuit:

The lawsuit, filed in federal court in California, details upwards of 50 PragerU educational videos that YouTube has, in PragerU’s view, unjustifiably slapped with “restricted mode” or “demonetization” filters, violating its First Amendment right to free speech.

What is not clear, however, is how the First Amendment comes into this. As I understand the free speech clause of the First Amendment,it protects the citizen against the federal government. "Congress shall make no law . . . abridging the freedom of speech or of the press . . . ."

Google and its subsidiary YouTube, however, are in the private sector. 

If I don't allow your comment to appear on my weblog, that is no violation of your First Amendment rights. You have no First Amendment rights here. This is private property.  It is the same as if you came into my house spouting leftist drivel. I'd throw you out. Why should I give some macro-aggressive destructive leftist a forum? 

Google could argue similarly: why should they give a forum to the 'racist,' 'sexist,' 'homophobic,' etc. views of Dennis Prager and his associates?

Note the difference between Google and Cal Berkeley. If Alan Dershowitz is prevented from speaking there by Antifa thugs, he could argue with some plausibility that since Cal Berkeley is the recipient of federal monies, he does have First Amendment rights there.

But it will take rather more involved legal reasoning for Prager's lawyers to make their case.

There are a number of wickedly difficult issues here.

All the political issues are rooted in philosophical conundra. My metaphilosophy, however, teaches that the problems of philosophy are, all of them, insoluble. Ergo, etc.

Reason to End Deferred Action on Childhood Arrivals (DACA) Act

Andrew C. McCarthy explains:

The problem is the substance of executive action. DACA is defective in two ways. First, it presumes to exercise legislative power by conferring positive legal benefits on a category of aliens (the “dreamers,” as concisely described in Yuval Levin’s Corner post). Second, it distorts the doctrine of prosecutorial discretion to rationalize this presidential legislating and to grant a de facto amnesty. These maneuvers violated core constitutional principles: separation of powers and the president’s duty to execute the laws faithfully.

There has never been a shred of honesty in the politics of DACA. Democrats have taken the constitutionally heretical position that a president must act if Congress “fails” to. They now claim that to vacate DACA would be a travesty, notwithstanding that the program is blatantly illegal and would be undone by the courts if President Trump does not withdraw it. For his part, candidate Trump loudly promised to repeal Obama’s lawless decree but, betraying the immigration-permissivist core that has always lurked beneath his restrictionist rhetoric, Trump has wrung his hands through the first eight months of his presidency. As for the Republican establishment, DACA is just another Obamacare: something that they were stridently against as long as their objections were futile, but that they never sincerely opposed and — now that they are accountable — cannot bring themselves to fight.

More on Dreher vs Buchanan on "All Men are Created Equal" and White Supremacy

Dr. Patrick Toner comments and I respond in blue:

Your piece on Dreher and Buchanan accepts Dreher's overall reading (or misreading, as I see it) of Buchanan's argument -- you seem to accept that Buchanan actually means to somehow call into doubt the metaphysical doctrine of the equality of men.  This seems clearly wrong to me.  

 

But before coming to that point, I want to check with you about another thing, namely, Dreher's accusation that Buchanan is openly endorsing white supremacy in his essay.  Things you've said elsewhere about the failure to define terms such as "white supremacy" make me hesitant to actually ascribe to you the belief that Buchanan is a white supremacist, but if that's right--if you aren't accepting the white supremacy charge--at any rate nothing in Sunday's piece makes that explicit.  And when you end your piece by talking about Buchanan "apparently repudiating" the doctrine of equality, there is at least a hint that you're willing to accept the charge.

BV: Thank you for these fine comments, Patrick. As a philosopher you understand the importance of defining terms. And yet you haven't offered us a definition of 'white supremacist.' Absent a definition, we cannot reasonably discuss whether or not Pitchfork Pat is a white supremacist, and whether the white supremacy charge is clearly bunk as you claim it is.

 

We could mean different things by the phrase 'white supremacist' and cognates.  I hope you will agree with me, however, that the phrase is actually used by most people emotively as a sort of semantic bludgeon or verbal cudgel for purely polemical purposes in much the same way that 'racist,' 'Islamophobe,' 'fascist,' and other emotive epithets are used.  On this usage, no morally decent and well-informed person could be a white supremacist.  The implication is that a white supremacist is a bigot, i.e., an unreasonably intolerant person who hates others just because they are different. It is a term of very serious disapprobation.

 

I would guess that you understand 'white supremacist' in something very close to this sense -- which is why you take umbrage at Dreher's claim that Buchanan is a white supremacist. Bear in mind that that is Dreher's claim. I don't make it. My point of agreement with Dreher is solely on the question of the meaning of "All men are created equal."  It is spectacularly clear that, in the piece in question, Buchanan shows a lack of understanding of the meaning of the sentence.  Buchanan reads it as an empirical claim subject to falsification by experience.  It is not, as I explain in my parent post. Here again is what he wrote:

 

“All men are created equal” is an ideological statement. Where is the scientific or historic proof for it? Are we building our utopia on a sandpile of ideology and hope?

I was really surprised when I read that. It occurred to me that it might just be a slip occasioned by old age, anger at recent developments, or too much Irish whisky.

 

Now consider the following candidate definition of 'white supremacist.'

 

D1. A white supremacist is one who holds that the culture and civilization produced by whites is, on balance, superior to the cultures and civilizations produced by all other racial groups.

 

One could be a white supremacist in this sense and hold all of the following: (a) Slavery is a grave moral evil; (b) All men are created equal in the sense I explained; (c) No citizen should be excluded from the franchise because of race; (d) No citizen should be excluded from holding public office because of race; (e) All citizens regardless of race are equal before the law.

 

Buchanan might well be a white supremacist in the (D1)-sense.  Here is a bit of evidence: "Was not the British Empire, one of the great civilizing forces in human history, a manifestation of British racial superiority?"  Buchanan is not saying that the Brits merely thought themselves to be racially superior but that they really were. 

 

I think the white supremacy charge is clearly bunk--or at any rate, I'll say this: nothing in that particular column of Buchanan's can reasonably support a charge of white supremacy.  And I don't say that on the basis that "white supremacy" hasn't been adequately defined, or any other such technicality.  I just mean it should be clear that Buchanan's point is not to endorse white supremacy, but simply to point out that if that charge applies to Lee and co, then it applies to Washington and Jefferson and co, and indeed then we need to throw out the whole western culture that gave us the metaphysical doctrine of equality.  

BV: Again, unless you tell us what you mean by 'white supremacy,' there is no way to evaluate what you are saying. The matter of definition is not a mere technicality; it is crucial. I sketched two senses of 'white supremacist,' the 'semantic bludgeon' sense and (D1).  Now I agree that Buchanan is not a white supremacist in the first sense, but it looks like he is in the second.  So I totally reject your claim that "nothing in that particular column of Buchanan's can reasonably support a charge of white supremacy." 

 

You are also failing to appreciate that, just like an alt-righty, he shows no understanding of "All men are created equal." He is clearly giving it an empirical sense. That's blindingly obvious. Now I am going just on this one column. Perhaps in other works he says something intelligent on this point.  This is why Dreher is right against Buchanan despite the former's over-the-top rhetoric.

 

And then on to the next point: having thrown out the grounding upon which that doctrine stands, upon what shall we build our egalitarian utopia?  We can't re-establish the equality doctrine on some universally-acceptable empirical ground!  Buchanan doesn't doubt the equality doctrine: he points out that the iconoclasts seeking to build their new world on it, have no basis upon which to rationally accept it.  It's not a new or brilliant claim--it's pretty standard and obvious, I'd have thought.

 

BV: I am not quite sure what you are driving at here, but a tripartite distinction may help:

 

a) The Declaration sentence is empirical but false.

b) The Declaration sentence is empirical and true.

c)  The Declaration sentence is metaphysical, and thus non-empirical.

 

The alt-righties accept (a). The loons on the Left accept (b).  You and I accept (c).  You and I agree that the equality doctrine cannot be built on empirical ground.  I would guess that you and I also agree that if the Declaration sentence is making an empirical claim, then that claim is false.

 

I wrote this up yesterday in a little blog post, and I'm encouraged a bit in my reading (not that, in truth, I doubted it before!) by finding this column (not by Buchanan) posted today on Buchanan's website.  

Generally, I try to follow the advice of Thoreau, "read not the Times, read the eternities," and so I ignore such issues.  But I do read your blog faithfully, and for some reason--maybe just a lingering respect for Buchanan, who has always struck me as a decent man--you prompted me to read a bit of political ephemera to try to sort it out.  :)  

I hope you're doing well!  

 

BV: Thank you, sir.  I think we agree on the main issues, except that I really think it is important to define 'white supremacist' and not bandy it about unclarified.

 

I too love the Thoreau aphorism (and I'll bet you found it on my site; if not, forgive me my presumption) but I would add that in dangerous times one has to attend to the Times lest our enemies win and make it impossible for us to read the Eternities. Boethius was able to do philosophy in a prison cell, but most of us lesser mortal are not Boethian in this regard.

 

Keep your powder dry! (May the loons of the Left vex themselves over whether this is some sort of 'dog whistle.' It does have a Pitchfork Pat, "locked and loaded" ring to it.)

Dreher contra Buchanan on "All men are created equal"

Rod Dreher quotes Patrick J. Buchanan:

“All men are created equal” is an ideological statement. Where is the scientific or historic proof for it? Are we building our utopia on a sandpile of ideology and hope?

Dreher responds:

With that, Buchanan repudiates not only the founding principle of our Constitutional order, but also a core teaching of the Christian faith, which holds that all men are created in the image of God. 

I am with Dreher on this without sharing quite the level of high dudgeon that he expresses in his piece. 

I am always surprised when people do not grasp the plain sense of the "that all Men are created equal" clause embedded in the opening sentence of the second paragraph of the American Declaration of Independence. It cannot be charitably interpreted as a statement of empirical fact. If it were so interpreted, it would be false. For we all know, and certainly the Founders knew, that human beings are NOT equal as a matter of empirical fact either as individuals or as groups.

Suppose a statement can be interpreted in two ways. One way it comes out plainly false; the other way it comes out either true or plausible or not obviously untrue. Then what I understand the Principle of Charity to require is that we go the second way. 

For Buchanan to demand "scientific or historic proof" shows deep misunderstanding. For again, the claim is not empirical. Is it then a normative claim as Mona Charen (quoted by Dreher) seems to suggest? It implies normative propositions, but it is not itself a normative proposition. It is a metaphysical statement. It is like the statement that God exists or that the physical universe is a divine creation. Both of the latter statements are non-empirical. No natural science can either prove them or disprove them. But neither of them are normative.  

Note that the Declaration's claim is not that all men are equal but that all men are created equal. In such a carefully crafted document, the word 'created' must be doing some work. What might that be?

There cannot be creatures (created items) without a Creator. That's a conceptual truth, what Kant calls an analytic proposition. So if man is created equal, then he is created by a Creator. The Creator the founders had in mind was the Christian God, and these gentlemen had, of course, read the Book of Genesis wherein we read that God made man in his image and likeness. That implies that man is not a mere animal in nature, but a spiritual being, a god-like being, possessing free will and an eternal destiny. Essential to the Judeo-Christian worldview is the notion that man is toto caelo different from the rest of the animals. He is an animal all right, but a very special one. This idea is preserved even in Heidegger who speaks of an Abgrund zwischen Mensch und Tier. The difference between man and animal is abysmal or, if you prefer, abyssal. Man alone is Da-Sein, the 'There' of Being; man alone is endowed with Seinsverstaendnis, an understanding (of) Being.  But I digress onto a Black Forest path.

Now if all men, whether male or female, black or white, are created equal by God, and this equality is a metaphysical determination (Bestimmung in the sense of both a distinctive determination and a vocation) then we have here the metaphysical basis for the normative claim that all men ought to be treated equally, that all men ought to enjoy equally the same  unalienable rights, among them, Life, Liberty, and the Pursuit of Happiness.  (We note en passant that these are negative rights!)

All men are normatively equal because they are metaphysically equal. They are the latter because they are spiritual beings deriving from one and the same spiritual source.  Each one of us is a person just as God is a person. We are equal as persons even though we are highly unequal as animals.

Without this theological basis it is difficult to see how there could be any serious talk of equality of persons. As the alt-righties and the neoreactionaries like to say, we are not (empirically) equal either as individuals or as groups. They are absolutely right about that.   

Dreher is also right that the theologically-grounded equality of persons is "the founding principle of our Constitutional order," and thus of our political order.  Repudiate it, as Buchanan seems to be doing, and you undermine our political order.

What then does our political order rest on if the equality of persons is denied? 

Related: Sullivan is Right: Universalism Hasn't Been Debunked

Modern Liberalism, Original Intent, and Equality

From Thomas G. West, Jaffa versus Mansfield: Does America Have a Constitutional or a "Declaration of Independence" Soul?:

Modern liberalism, as John Dewey and its other originators conceived it, is the enemy of individual rights in the Founders' sense. Dewey goes so far as to say that in the context of the twentieth century, the Founders' understanding of rights is evil. [Reference?] Dewey also disparages the importance of government by consent of the governed. Elections really do not matter for Dewey. Democracy is not about elections and consent, nor is it about securing the right to liberty. It is rather "that form of social organization, extending to all the areas and ways of living, in which the powers of individuals shall . . . be fed, sustained, and directed" by government.⁵⁶ Liberalism therefore prefers government by supposedly neutral, supposedly scientific "experts" largely insulated from the interference of public opinion and elected officials.⁵⁷Liberals have long seen the Constitution, as it was originally understood, as their enemy; thus their indifference or hostility to "original intent."

Believers in the Founders' idea of equality, on the other hand, are the strongest supporters of the Constitution. Clarence Thomas is the Supreme Court justice who is most faithful to the text and spirit of the Constitution. The reason is that Justice Thomas, uniquely among those now on the Court, sees an intimate connection between the principles of the Declaration, which are the principles of individual liberty, and the text of the Constitution. In other words, Thomas respects the Constitution not just because it is a law, not just because it was adopted by the majority, but because it is good. As Thomas explained in a 2001 lecture at James Madison University, "the principles upon which the American Constitutional order is based are universal principles, applicable to all people at all times." He is interested in the constitutional text, he said, precisely for this reason.

Gorsuch Confirmed and Trump Voters Vindicated

Argumentum SCOTUS vindicatus est!

William J. Bennett had it right back in August:

Too many of our rights, liberties, and securities already hang by a one-vote thread. A Clinton Supreme Court would surely do away with them. It is a better bet that a President Trump together with Vice President Pence and a Republican Congress would ensure that Scalia's seat or any other open seats would be filled by a conservative. If you are a conservative who cares about the future of this country, there is only one choice. A vote for anyone else, third parties included, only helps Clinton and brings liberals one vote closer to ruining our republic as we know it.

This sums it up. There was really only one choice for clear-headed conservatives.  

I go into considerable detail in Philosophical Aspects of the Trump-Clinton Contest.

A Religious Test for Immigration Unconstitutional? Schumer's Lie

Many Democrats use 'unconstitutional' rather broadly to refer to anything they don't like. Senator Charles Schumer (D-NY) apparently favors this broad (mis)use of the term. He claimed -- wait for it -- that President Donald Trump's temporary ban on Muslim immigration from seven Muslim countries is "unconstitutional" because it applies a religious test.

But of course it isn't. In Article VI, paragraph three of the United States Constitution we read that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." This has nothing to do with immigrants; it pertains to citizens who seek public office. (It is also worth noting that the clause says nothing about the states; it pertains to seekers of Federal offices. See here.)

So it is clear that Schumer made a false statement. Did he lie? Did he knowingly make a false statement? It is a good bet that he did given his leftist agenda. And he thought he could fool us, too. 

It is plain, then, that there is nothing unconstitutional about applying a religious test to immigrants. It might nevertheless be argued that a religious test is being applied, unconstitutional or not, and that there is something dubious about this.   "It is not who we are," some bien-pensant liberal will gush. But is the test religious?

Bear in mind that Islam is a hybrid worldview: it is as much a political ideology as a religion. The reason Muslims are singled out and subjected to a test for immigration-worthiness and found wanting is not because of their specifically religious views but because of their political views. As ought to be clear by now, Islamic law or Sharia is incompatible with the values of the United States. The state needn't care about anyone's views about abstruse theological questions such as the Trinity, the divinity or non-divinity of Christ, the exact mechanism of divine revelation, etc.  But every state has a right to defend itself against subversive elements.

"Is every Muslim a subversive element?" Don't be stupid.

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Observations on Free Speech

The Right to Free Speech is Unalienable

This important point is explained clearly here:

We do not derive our right to freedom of speech from the Constitution. More specifically, it does not “come from” the First Amendment.

[. . .]

The Constitution is not the source of our right to freedom of speech because freedom of speech is an unalienable right. What the First Amendment can do is recognize that already existing unalienable right by forbidding the government from abridging it. And that is precisely what it does.

We could put it as follows.  The First Amendment does not confer, but protects, the right to free speech, a natural right that is logically antecedent to anything conventional such as a human document or the collective decision of a legislative body.  It protects this right against government infringement.  

There are two points here that ought to be separately noted.  One is that the right is protected, not conferred, by the Constitution. The other is that the right is protected against government infringement.  The government may not infringe your right to free speech, but that is not to say that I may not.  

Suppose you leave an offensive comment on my weblog.  I delete your comment and block you from my site.  You protest and cite the First Amendment.  I point out that said amendment protects your speech against government infringement only, and that I am no part of the government.

If you insist that you nevertheless have a right to express yourself, I will agree, but add that your right to free expression does not entail any obligation on my part to give you a forum.

Finally, to speak of the right to free speech as a 'constitutional right' or as a 'First Amendment right' can be misleading inasmuch as someone might be led by these words to suppose that the right derives from the Constitution.  So it is best to speak of it as an unalienable or natural right. 

On Flag Burning

In a piece entitled, "Mr. Trump, Meet the Constitution," the editorial board of The New York Times betrays a failure to grasp the distinction between the U. S. Constitution and Supreme Court rulings about it.  In the 1989 case "Texas v. Johnson," SCOTUS handed down a 5-4 ruling according to which flag burning was a form of speech protected by the First Amendment.  Now if you read the amendment you will find no reference to flag burning.  The subsumption of flag burning under protected speech required interpretation and argument and a vote among the justices.  The 5-4 vote could easily have gone the other way, and arguably should have. 

 

So Trump's tweet, "Nobody should be allowed to burn the American flag . . . ," does not show a lack of understanding of the Constitution.  After all, SCOTUS rulings can be overturned.  On a charitable interpretation, Trump was advocating an overturning of the 1989 and 1990 flag burning rulings.

 

Ought flag burning come under the rubric of protected speech?  Logically prior question: Is it speech at all?  What if I make some such rude gesture in your face as 'giving you the finger.'  Is that speech?  If it is, I would like to know what proposition it expresses.  'Fuck you!' does not express a proposition.  Likewise for the corresponding gesture with the middle finger.  And if some punk burns a flag, I would like to know what proposition the punk is expressing. 

 

The Founders were interested in protecting reasoned dissent, but the typical act of flag burning by the typical leftist punk does not rise to that level.  To have reasoned or even  unreasoned dissent there has to be some proposition that one is dissenting from and some counter-proposition that one is advancing, and one's performance has to make more or less clear what those propositions are.  I think one ought to be skeptical of arguments that try to subsume gestures and physical actions under speech.

 

The First Amendment also mentions religion.  If flag desecration counts as speech, what would not count as religion?  Is godless communism a religion? Why not, if a majority of the black-robed ones say it is?  

 

The Constitution is a magnificent document worthy of great respect and a sort of secular reverence, attitudes one might hesitate to cherish with respect to certain members of the Supreme Court.

 

Am I saying that there should be a flag burning amendment?  No.  Let the states decide what to do with the punks who desecrate the flag.

 

As for Hampshire College, pull their federal funding if they refuse to fly the flag.  That should get their attention.

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Hillary on Heller: She Lied

So what else is new?  That the sky is blue?  The trouble with Trump is that he doesn't know enough about the issues to punch back effectively when Mrs. Clinton lets loose with one of her whoppers. He let her escape several times during their third and final debate.    Sean Davis:

In her answer to a question about her views on gun rights, Clinton said she opposed the Supreme Court’s Heller decision, which recognized the constitutional right for individuals to own and carry firearms, because it was about whether toddlers should have guns.

[. . .]

So what was the Heller case really about? It was about whether Dick Anthony Heller, a 66-year-old police officer, should be legally allowed to own and bear a personal firearm to defend himself and his family at home.

[. . .]

If Clinton opposes an individual’s constitutional right to keep and bear arms to protect his or her family, she should just come out and say so instead of blatantly lying about the Supreme Court’s decision on the matter. But it gets better: after claiming that the Heller decision was all about toddlers, Hillary then claimed that the Constitution guarantees a right to partial-birth abortion, a practice that requires an abortionist to rip an unborn baby from the womb, stab or crush her skull, and then vacuum out her brains. Because Hillary Clinton’s top priority is protecting innocent children from violence.

Hillary is a stealth ideologue who operates by deception. This is what makes her so despicable. If she were honest about her positions, her support would erode. So not only are her policies destructive; she refuses to own them.  She is an Obamination both at the level of ideas and at the level of character.

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Leviticus 19:15: The Lord versus Hillary

“You shall not do injustice in judgment; you shall not show partiality to the powerless; you shall not give preference to the powerful; you shall judge your fellow citizen with justice."  Alternate translations here.

In the third and final presidential debate, Hillary Clinton said the following about Supreme Court  nominations.  "And the kind of people that I would be looking to nominate to the court would be in the great tradition of standing up to the powerful, standing on behalf of our rights as Americans." 

This is the sort of leftist claptrap according to which the judiciary assumes  legislative functions and the Constitution is a tabula rasa on which anything can be written.  The purpose of the court is not to stand up to the powerful or take the side of the powerless, but to apply the law and administer justice.  

There must be no  "partiality to the powerless."  Might does not make right.  But neither does lack of might.

(Credit where credit is due:  I am riffing on a comment I heard Dennis Prager make yesterday.)

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Weakness Does Not Justify

Restatement on Flight 93

More from Publius Decius Mus. 

To all the “conservatives” yammering about my supposed opposition to Constitutional principle (more on that below) and who hate Trump, I say: Trump is mounting the first serious national-political defense of the Constitution in a generation. He may not see himself in those terms. I believe he sees himself as a straightforward patriot who just wants to do what is best for his country and its people. Whatever the case, he is asserting the right of the sovereign people to make their government do what they want it to do, and not do things they don’t want it to do, in the teeth of determined opposition from a managerial class and administrative state that want not merely different policies but above all to perpetuate their own rule.

If the Constitution has any force or meaning, then “We the People” get to decide not merely who gets to run the administrative state—which, whatever the outcome, will always continue on the same path—more fundamentally, we get to decide what policies we want and which we don’t. Apparently, to the whole Left and much of the Right, this stance is immoderate and dangerous. The people who make that charge claim to do so in defense of Constitutional principle. I can’t square that circle. Can you?

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The Left Might Get Trump Nominated

So argues Dennis Prager.  For Trump alone among the Republican candidates is willing to stand up to the thuggishness of the Left.  The other candidates including Ted Cruz are blaming Trump and his rhetoric.  The latter is admittedly less than presidential and Trump is well-advised to tone it down.  But which is worse, some harsh language or the total disruption of a speaking event in which thousands are prevented from hearing a speaker they came to hear?  The latter obviously since it is an attack on free speech, a central American value.

What enrages so many conservatives is that the typical Republican simply will not fight the Left as it must be fought.  You cannot urge civility when you are dealing with leftist scum.  Civility is for the civil, not for the enemies of civilization.  As for the routine thuggishness of leftists, Prager is right on target, except for a mistake I point out  after the quotation (emphasis added):

And the truth is that the left-wing attack on Trump's Chicago rally had little, if anything, to do with the incendiary comments Donald Trump has made about attacking protestors at his events. Leftist mobs attack and shut down events with which they differ as a matter of course. They do so regularly on American college campuses, where conservative speakers -- on the rare occasion they are invited -- are routinely shouted down by left-wing students (and sometimes faculty) or simply disinvited as a result of leftist pressure on the college administration.

A couple of weeks ago conservative writer and speaker Ben Shapiro was disinvited from California State University, Los Angeles. When he nevertheless showed up, 150 left-wing demonstrators blocked the entrance to the theater in which he was speaking, and sounded a fire alarm to further disrupt his speech.

In just the last year, left-wing students have violently taken over presidents' or deans' offices at Princeton, Virginia Commonwealth University, Dartmouth, Providence College, Harvard, Lewis & Clark College, Temple University and many others. Conservative speakers have either been disinvited or shouted down at Brandeis University, Brown University, the University of Michigan and myriad other campuses.

And leftists shout down virtually every pro-Israel speaker, including the Israeli ambassador to the United States, at every university to which they are invited to speak.

Yet the mainstream media simply ignore this left-wing thuggery -- while reporting that the shutting down of a pro-Trump rally is all Trump's fault for his comments encouraging roughing up protestors at his events.

That the left shuts down people with whom it differs is a rule in every leftist society. The left -- not classical liberals, I hasten to note -- is totalitarian by nature. In the 20th century, the century of totalitarianism, virtually every totalitarian regime in the world was a leftist regime. [Hitler? Mussollini? Franco?] And the contemporary American university -- run entirely by the left -- is becoming a totalitarian state, where only left-wing ideas are tolerated.

Tens of millions of Americans look at what the left is doing to universities, and what it has done to the news and entertainment media, and see its contempt for the First Amendment's protection of free speech. They see Donald Trump attacked by this left, and immediately assume that only Trump will take on, in the title words of Jonah Goldberg's modern classic, "Liberal Fascism."

And if these millions had any doubt that Trump alone will confront left-wing fascism, Trump's opponents seemed to provide proof. Like the mainstream media, the three remaining Republican candidates for president -- John Kasich, the most and Marco Rubio the least -- blamed Trump for the left-wing hooligans more than they blamed the left. It is possible that in doing so Senators Cruz and Rubio and Governor Kasich effectively ended their campaigns and ensured the nomination of Trump as the Republican candidate for president. The combination of left-wing violence and the use of it by the other GOP candidates to wound Trump rather than label the left as the mortal threat to liberty that it is may clinch Trump's nomination.

And if the left continues to violently disrupt Trump rallies, they -- along with the total absence of condemnation by the Democratic Party and its presidential candidate -- may well ensure that Donald Trump is elected president. Between the play-Fascism of Trump and the real Fascism of the left, most Americans will know which one to fear most.

Prager speaks of "the First Amendment's protection of free speech."  But if you read the First Amendment to the U. S. Constitution you will see that it protects freedom of speech from the federal government: "Congress shall make no law . . . abridging the freedom of speech . . . .  The First Amendment does not protect freedom of speech from the canaille (the rabble, the riff-raff, literally a pack of dogs, from the Italian canaglia) or from any other non-government entity.

Nevertheless, free speech is a cherished American value essential for anything worth calling 'civilization' and we are going to have to have it out with these vicious leftist bastards sooner or later.  I don't expect it will be pretty. 

Trump may well flame out.  But the revulsion to RINOs and those who tolerate leftist and Islamist scum is not going away and successors to Trump, better equipped to carry on the fight, can be expected to appear.

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"No Religious Test"

In Article VI of the U. S. Constitution we read:

. . . no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Does it follow that the U. S. Constitution allows a Muslim citizen who supports sharia (Islamic law) to run for public office?  No!  For the same Constitution, in its First Amendment, enjoins a salutary separation of church/synagogue/mosque and state, though not in those words.  Sharia and the values and principles enshrined in the founding documents are incompatible.  On no sane interpretation is our great Constitution a suicide pact.

It is important to realize that Islam is as much  an anti-Enlightenment political ideology as it is a religion.  Our Enlightenment founders must be rolling around in their graves at the very suggestion that sharia-subscribing Muslims are eligible for the presidency and other public offices.

UPDATE 1

I just heard Marco Rubio refer to "no religious test" and Article VI in connection with Muslim immigration.  But this shows deep confusion on his part.  The U. S. Constitution affords protections to U. S. citizens, not to non-citizens.

UPDATE 2

From a reader:

I don’t follow your reasoning in the “’No Religious Test’” post. I have no idea what “…no religious Test shall ever be required” means if not that someone is permitted to run and be elected regardless of his religious views. It doesn’t mean we have to vote for him, or that his religious views can’t be criticized, or that his own attempts to give state sanction to his religious beliefs and practices can pass Constitutional muster. As you allusively note, the Establishment clause prevents Sharia law or any other distinctively religious practice from becoming the law of the land. But legally preventing the pro-Sharia Muslim from getting what he wants doesn’t legally prevent him from getting elected in the first place.

My reader assumes that no restriction may be placed on admissible religions.  I deny it. A religion that requires the subverting of the U. S. Constitution is not an admissible religion when it comes to applying the "no religious Test" provision. One could argue that on a sane interpretation of the Constitution, Islam, though a religion, is not an admissible religion where an admissible religion is one that does not contain core doctrines which, if implemented, would subvert the Constitution.

Or one might argue that Islam is not a religion at all.  Damn near anything can and will be called a religion by somebody.  Some say with a straight face that leftism is a religion, others that Communism is a religion.  Neither is a religion on any adequate definition of 'religion.'  I have heard it said that atheism is a religion.  Surely it isn't.  Is a heresy of a genuine religion itself a religion?  Arguably not.  Hillaire Belloc and others have maintained that Islam is a Christian heresy.  Or one could argue that Islam, or perhaps radical Islam,  is not a religion but a totalitarian political ideology masquerading as a religion.  How to define religion is a hotly contested issue in the philosophy of religion. 

The point here is that "religious" in ". . . no religious Test shall ever be required" is subject to interpretation.  We are under no obligation to give it a latitudinarian reading that allows in a destructive ideology incompatible with our values and principles.

My reader apparently thinks that since the Establishment Clause rules out Sharia, that there is no harm in allowing a Sharia-supporting Muslim, i.e., an orthodox Muslim, not a 'radicalized' Muslim,  to become president.  But this is a naive and dangerous view given that presidents have been known to operate outside the law.  (Obama, for example.)  It seems obvious to me that someone who shows contempt for our Constitution should not be allowed anywhere near the presidency.

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The First and Second Amendments

There is an old saying which is perhaps now out-of-date.  If liberals took the Second Amendment as seriously as they take the First, they would demand that gun ownership be mandatory.  The point of the jibe was to highlight the absurd extremes to which liberals take the First Amendment.

But now the First Amendment is under vicious assault, by contemporary liberals no less, while university administrators and professors, in abdication of authority, stand idly by or allow themselves to be driven out of office.

Curiously, this assault on the First is yet another powerful argument for the Second.

I now send you to David Harsanyi, The First Amendment is Dying.

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