Around the Blogosphere 4-26-05

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Interesting searches since Thursday:

Is Iraq an unjust war?
No, Iraq is a country.

in the what states is it illegal for gay people to get marriage
It would be much easier to ask which states allow it. I don't think there's likely to be a website out there listing all 49 states that don't allow it separately when they can just say that Massachusetts is the only state that does allow it.

Autobiography of dust in the wind
So is Kerry Livgren's song writing a biography about itself, or is the dust that it's about writing its own life story?

scalia thinks women are property
You've got to wonder about why people like this don't get deterred by the obvious lack of influence wishful thinking has on what search engines will turn up. Anyone who searches for something like that deserves what they'll get if they turn up my blog. As it happens, this search turned up my reference to Scalia's claim that orgies can be beneficial to society.

On to the roundup:

Tim Challies discusses total depravity.

At the Volokh Conspiracy: Funny lines, literally true but so misleading...

Jollyblogger gives us an inside look at how he prepares a sermon.

If you have a history of frivolous lawsuits against fast food places, don't go accusing a fast food joint of putting a human finger in your chili. Whatever you might be guilty of in terms of fraud pales in comparison to what you must have done to get the finger to set the fraud up.

How readable is your blog? Find out here. [Hat tip: Professor Bainbridge]

Laurence Thomas gives cell phone use as an example of convenience without self-control, a trend toward unacknowledgement of others' humanity, the development of moral numbness, and the beginnings of the pathway to social death.

Also, his post on romantic love and belief in God raises an interesting question. Aren't most of the arguments against believing in God just as good at arguing against believing in romantic love?


I do not understand Scalia's statements, for he knows well that in Roman Law countries homosexuality itself is not a crime, although gay marriage does not exist legally. (At least not yet). At the time of the US Constitution framers, they defended a State that would not interfere in private and intimate life.

I think that the intimate life that remain behind closed doors is not public arena. Churches and families may provide orientation to their members on friendly bases. It is not up to the State to have more authority over individuals on matters of sexual freedom than these natural groups of human society.

You have to remember that Scalia doesn't think homosexuality should be a crime. First, that would be a category mistake. You could outlaw homosexual acts, but outlawing homosexuality would be like outlawing sexual attraction in general as opposed to outlawing those who act on it (just in the case of homosexuality it wouldn't be as comprehensive). Second, Scalia's view is simply that that such laws are at the discretion of the legislature of the state. If there's nothing unconstitutional about the law, then it doesn't matter if it's a bad law. The Supreme Court has no right to overturn it. He then argues that it's not unconstitutional. Interestingly, Justice Thomas has a short opinion that goes far enough to say that it is a bad law and then says that he agrees with everything Scalia says. So there's no way Scalia's opinion can be taken to endorse the law. I've now posted my reflections on this case (written at the time) here.

The thing is that there are basic principles of law that cannot be disregarded by Legislators, even if they are not written in the Constitution, because not all principles of law are part of positive law. It is not up to the discretion of legislators to ban homosexual acts and Scalia knows that. State Supreme Courts are correct in declaring those laws unconstitutional.

I give you another example: Constitutions prescribe the method of electing Presidents and Governors. This method may be changed by Constitutional Amendment. Now, assume that you were so popular that a group of legislators introduce a proposition to amend the Constitution of the US to appoint you President for a four year term. This proposition is null and void from the onset, because pieces of legislation cannot name particular individuals. And the US Constitution cannot be altered by an Amendment that violates this basic principle of law.

It is not up to the discretion of legislators to ban homosexual acts and Scalia knows that.

I just can't see how either conjunct is true. Legislators could ban all sexual acts. They'd get voted out if they did, and there might be moral reasons not to do so, but there's no legal reason why they couldn't.

I believe there are principles that restrict what kinds of laws we should have, and so does Scalia. These are principles of natural law. Legal positivists won't have any of that, though. That's why they have to base judicial decisions on evolving standards. Either way, though, it's consistent with believing that there are principles that can restrict what we can have laws about to think that there's no principle that restricts whether we can have laws restricting sexual behavior.

But Scalia can see both conjuncts, trust me.

I don't trust you. In fact, you're violating one of the first rules of decency in argument: assume your opponent has a view that supports what your opponent says. In this case, Scalia has presented what his view says. You're simply claiming that he doesn't really believe what he says he believes. He even has a very good account of why his originalism leads to the view he's given. The fact that there were anti-sodomy laws on the books when the Constitution went into effect shows that the framers of the Constitution did not hold any principles that were implicit that conflicted with anti-sodomy laws, or they would have made those principles explicit. To state simply and without argument that he knows that what follows from his deeply held view is false, with no evidence that he knows that, seems to me to be just wishful thinking.

Just take this comparison: assume that I deliver a talk at some conference of atheists. And, suddenly I claimed that Joshua was written by Cyrano de Bergerac. Could you believe that I believed in what I said? Or would you suspect that I was kind of making a concession to the audience?

It is the same when among people who support legalisation of abortion you hear someone claim that life only starts after the fourth month of pregnancy. But the known simple truth is that the gametes are already living cells before they merge. Or when you hear that the foetus is not human yet. Do you really believe that those who say it expect a bird or a lion to come out at the end of the gestation? Those are things people say to please audiences.

I don't think the second group has anything to do with pleasing audiences. I think it's just uncareful speech. They don't care about the difference between life and personhood, taking life as whatever it is we care about for moral rights. When you correct them on it, they say they mean personhood, at least if they're at all philosophically informed.

I don't know who Cyrano de Bergerac is. Are you talking about the biblical book of Joshua? If you said that was written by someone with a Latinate-sounding name, I'd think you were either joking or sorely misinformed about the book and history. I wouldn't think you were catering to your audience.

I'm not sure how either of these matches up with the legal writing of a Supreme Court justice who very obviously has a well worked out system of thought that leads exactly to the conclusion he takes in the opinion in question.

Cyrano de Bergerac is a famous French poet, who incidentally also became the main character of a play by another famous French writer Edmond Rostand.

The argument that each State of the Federation has discretional power to deny or lift basic individual freedoms has been used in the past to sustain legislation disfranchising women. Scalia knows the History of the USA.
Hw also knows Italian and European juridical systems. He knows Civil Law, International law, Human Rights. He knows that although homosexual marriage does not exist in most Countries, homosexuality and homosexual acts are not crimes in Civil Law Countries. The same principles of Civil Law that disallow the State to make homosexuality itself illegal also exist in Common Law.

The Nuremberg War Crimte Trials and the Declaration of Human Rights already established the precedent and fixed the limit for States to respect natural rights. Judges who applied Nazi laws were convicted precisely because they enforced a legislation that deprived persons from such rights. Bearing this in mind, Judges in the USA, Brazil, Canada, France or anywhere cannot simply argue that certain laws are constitutional because the Constitution gives or seems to give the State the power to outlaw everything legislators want to.

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