| Friday,
June 28, 2002 I have this mail:
Re: Pledges
Nope, can't agree, "under God" is
discriminatory. Mutter them under your breath if you will, but the Framers
didn't put those words at the end, Eisenhower and Congress did in a
pathetic attempt to root out communists. It's got to go!
Which is the typical answer of those infected with the modern liberal
control freak disease that cannot tolerate the notion that someone,
somewhere, is doing something without permission.
The Framers didn't put nothing in the Pledge, which was written toward
the end of the 19th Century. The phrase "under God" was added by
Congress in 1953, I think mistakenly, but that's another matter. It was
done by Congress, after full debate, and those who didn't and don't like
it have this problem: there's nothing compelling people to say it.
The easiest way for courts to evade having to make hard decisions is to
find there's no reason to decide because this is not a "case or
controversy" under the meaning of the Constitution which gives courts
the authority to settle "cases and controversies." The
Court long ago got smart enough to never render an "Advisory
Opinion" about pending legislation. It's not the Court's job.
Now I believe that the notion of "incorporation of the Bill of
Rights" as an instrument to beat the States was wrongheaded, dumb,
imbecilic, and plainly contrary to the intentions of those who adopted the
14th Amendment. I think it clear, and better politics, to allow the states
to establish churches if they so desire -- they won't, of course, but even
if they did little harm would come from it. An established church is not
one that compels attendance or membership: no state could possibly pass
such a law, which would be in conflict with most state constitutions (and
in fact so would a state established church; Virginia got rid of its
established church by an amendment to its state constitution sponsored by
Thomas Jefferson). But by leaving Establishment decisions to the states we
would be a lot closer to what the Constitution intended.
A Union of States. Some will "do things right." Some will
"muck things up." A few will "trample upon the rights of
the people." In nearly every case the problem will be that one state
thinks that of others; few will think it of themselves.
Yes, on strict legal reasoning, the case was probably decided properly,
or at least there are good arguments to that effect. And so what?
We have become control freaks, as that letter shows. The girl in this
"case" doesn't live with her father who cannot get custody of
her for reasons I don't know but which may be obvious. This case was
brought on her behalf but without her, there is no evidence that she has
been compelled to do anything she doesn't want to do, and the only reason
given for this silliness is "It's got to go."
When one wants to take from the people something they want badly,
particularly in cases involving beliefs and fundamental values, you need a
darned good reason; one that will convince the people that you are right.
If, for instance, there were stories of young girls being forced to say
the terrible words "under God" under threat of being beaten or
expelled, you would not have a public outcry here. (Well there would be
outcry but in favor of the girl; the American people are good
hearted.)
But when all you have is control freakery asserting itself, you
undermine the notion of Republic and head us toward the other enemy of a
Republic: plebiscitory democracy. The natural end of a Republic is
democracy, which then degenerates into Empire. Sometimes Republics go to
Empire as a result of military adventures and usurpation from the top. As
often they fall to "friends of the people" who tell the people
that they are being robbed.
The people are a great beast, better left unawakened. If we wish to
take from them something they hold dear in the name of abstract
principles, I think it is best to wait for something important, not a
couple of pious words that likely do some good and little harm; and which
can safely be left to the LEGISLATURE in any event. Courts ought to decide
hard cases where there is something of importance at stake.
The Courts have now figured this out. They went too far and exposed
themselves as the silly control freaks they are: The Enlightened
telling The Benighted what is best for them. And the backpedaling has
begun. The courts now realize that what is at stake is the credibility of
the courts themselves -- and not much else.
We are pretty well moved to the new web site. I find that
access there is much faster than at Pair. Most of my web traffic is back,
so the transition seems smooth enough.
More on Palladium in Mail.
I was in a discussion of virtues recently. None of my learned
colleagues had any notion that this is a very old discussion, and that at
one time there was a consensus on the four cardinal virtues. After all,
it's just a matter of opinion and anyone's opinion is as good as anyone
else's, right? Well, on what basis is this assertion of equality of
opinion made? If your opinion is that there are 121 pennies to the dollar
and you insist on your proper due or you will kill me, and mine is that I
only owe you 100 pennies, are these views equal? And if not, then why is
your opinion on virtues better than mine?
Anyway I found this:
"Each man should so conduct himself that
fortitude appear in labours and dangers: temperance in foregoing
pleasures: prudence in the choice between good and evil: justice in giving
every man his own [in suo cuique tribuendo]"
Cicero
Which I had forgotten since I read it in Latin many years ago. I
shouldn't have.
Prudence, temperance, courage, and justice.
Eric Raymond on the myth of the moderate
Islam:
http://armedndangerous.blogspot.com/2002
_06_16_armedndangerous_archive.html#77916208
Posted 7:38 PM by Eric Raymond
Discussion in mail.
And a final note on control freaks: there are two kinds. One seeks to
control everyone directly. The other merely minds other peoples business,
and often calls himself libertarian.
The problem here is that the extreme individualism of both liberal and
libertarian produces much the same result: no communities, no "little
platoons", no place where people can live any kind of community life
other than that of atoms. This Pledge business is a good example.
In the real world, this Pledge with the phrase "under God"
may or may not do any good. The hope is that it will instill just a little
national humility and a little realization that just because we as a
nation can do something, it's not necessarily the case that we should. It
is also supposed to foster some patriotism and national unity: but again
tempered by the realization that as a nation we are responsible to a
Higher Power. Whether the pledge accomplishes any of that is surely a
debatable proposition -- and the proper place to debate that is in the
legislature, not in the courts.
What isn't very arguable is that anyone is harmed by this. The
legislature of California, not a particularly right wing organization and
hardly dominated by the Christian Right or anything like it, has chosen to
mandate that pledge in the public schools, but there are no penalties
associated with not saying it. A student can stand up and be silent. If a
case came to the court showing that someone was really harmed, there would
be a case.
But there isn't. This is a gratuitous act of people who want to see to
it that everyone does only things they approve of. It is the same
mentality that stopped Christmas pageants, lighting the lights of the LA
City Hall in a cruciform pattern on Christmas and Easter, and a whole
bunch of other acts of public piety that endured for 200 years here. Then
suddenly the courts, not the legislatures, find these fresh new rights,
and that we lived in a repressive regime bowed under the weight of
religious fanatics during most of the existence of the republic.
Oh? We didn't? The American people aren't really religious fanatics
determined to impose their hideous views on the entire state of
California? California is going to go impose a state religion on Arizona?
I say this again: I prefer that local communities have real power,
including the power to do things I really wish they wouldn't do. That is
better than anomie and alienation.
In any event, it's clear t me that this whole mess is the proper
business of legislatures, not courts, and expanding the power of courts is
not really a very libertarian thing to do.
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