Thursday Highlights

Links?

  1. Recounting Mr Obama’s shifting sands and the Middle East. Even if you don’t know what we should vis a vis Egypt and Syria, what we did do remains amazingly stupid.
  2. Speaking of Syria … somebody needs to update their RSS/news feeds, ’cause that criteria touches not a single comment on the matter that I’ve read anywhere.
  3. Oh, welcome back Mr Schraub … even if you abandon the Constitution in the name of defending it. A fourth of the colonies at the time of ratification felt that “Freedom” meant the authority to make local decisions about how to order their life (reference, “New England folkway and the section on “Freedom ways” in Abion’s Seed by David Hackett Fisher). My guess is that Mr Schraub knew that because he has a keen interest in American political history, so he has to have read that seminal book. It seems incoherent to argue that what is meant by freedom held by a quarter of the founding population is actually not Constitutional.
  4. Slick gun tech.
  5. For your failing memory, future promise.
  6. Killing “to make a statement” seems on its face unethical. Yes or no?
  7. Epic fantasy ranked. I’d move #3 up … possibly to the top. I’d move down #4 … don’t know how far. #17 shouldn’t even be on the list, it was so bad.
  8. Uh, what the heck?!
  9. This not news, guy works at spy agencies … and, erhm, spies.
  10. That. Is. Amazing.
  11. Discussing racism.

45 Responses to Thursday Highlights

  1. Recounting Mr Obama’s shifting sands and the Middle East. …

    The premise here seems to be that protestors, rebels, and other groups basically sit around with no agenda and no inclination to do anything other than scrutinize statements made by the President of the United States for ‘signals’ to act. Reality seems to be the opposite. Protestors decide to turn to rebels decide to take down their gov’t and the US must decide where it stands about that…and it must decide before knowing who any of these people really are (and the people themselves really don’t know who they are either).

  2. Boonton,
    I see. So your argument is that the US President’s words are meaningless and ineffectual so consistency is doesn’t matter. Interesting.

  3. Exactly which words are you alleging? For example, do you have specific words from Obama saying the US is ‘chummy’ with Egypt’s Muslim brotherhood?

    And you seem to misunderstand the meaning of meaning. If I say on Tuesday the weather is nice and on Wednesday the weather is crappy, that doesn’t mean my words are meaningless. It does mean that I don’t have wizard-like powers to invoke good or bad weather, simply that my words are reflecting the events of the time and as events change my words change.

  4. Re #3

    A fourth of the colonies at the time of ratification felt that “Freedom” meant the authority to make local decisions about how to order their life

    A fourth of the colonies? What do you think the other 3/4 felt the opposite about freedom? This rant against Mr Schraub’s piece was so incoherent I actually felt inclined to read what could have set you off?

    Are you objecting to the First Amendment applying to state and local gov’t? Well if so you seem to not be aware that all State Constitutions have mirrored essentially the same language as the First so even if you felt local gov’t is not bound by the Bill of Rights, they are bound by essentially the same language on their state and local levels.

    If you’re objecting to state and local gov’ts being bound by the Bill of Rights….well then you’re not making much of a case. At the Founding, the Constitution came first and the bill of rights came later so the colonies couldn’t have ‘decided’ that they would never be bounded by additional amendments to the Constitution (if they had, they could have added language limiting the scope of possible amendments. The only limit they did pass was to give slavery a protected period before it could be touched by a Constitution amendment). Of course this is totally neglecting the subject of incorporation which was brought into the mix by the post-Civil War amendments….enacted long after all the members of the colonies’ founding generation had passed away.

    Not in the same day but we might as well keep the comment threads together:

    Related to the above. So, prior to being elected President, Mr Obama was firmly against Presidential unilateral military action, now he’s for it (indeed done it).

    Oh shit. Obama just asked Congress to approve any strike on Syria. (‘indeed done it’? What unilaterial strikes are you talking about?). Let’s see how fast Mark gives Obama credit for honoring campaign promises.

  5. Glad to be back, and it will be a pleasure to educate you on Constitutional law once again.

    The NY zoning case is not about the right of localities to order their affairs. To be sure, it could have been, if the board hadn’t decided to be idiots. If they had just said no to the eruv on the grounds that it was, say, a fire hazard, I’d think they were mean-spirited, but probably legal (assuming New York doesn’t have a baby RFRA).

    But they didn’t do that. They, in a colossally stupid move, decided to make a pronouncement on the validity of religious doctrine (calling the eruv a “loophole”). And that is a major no-no. Though a minority of states did support the existence of a state established church post-founding (a view that died off by the early 19th century, which is important because from an originalist standpoint we care about the understanding of the establishment clause in 1868, when the Fourteenth Amendment was ratified and the bill of rights applied against the states), none to my knowledge supported government regulation of the religious beliefs of their citizens (particularly those not part of the state-established church). Hence, as the Supreme Court put it in Watson v. Jones, 80 U.S. 679, 728 (1872):

    [T]he full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.

    That case began a long line of universally acknowledged precedent (you’re literally the first person I’ve ever heard to challenge it) that while government bodies may or may not be allowed to enact laws which have the effect of burdening religious practice, they cannot themselves make judgments about the validity or propriety of religious tenets, belief, or dogmas.

  6. David,

    I see, so it’s basically a matter of education. The NY Zoning board needs to be informed that to be legally correct they have to be, basically, dishonest … honestly in law is discourage (a hint why common folk distrust lawyers).

    What I read from you is that, it’s all well and good to make laws expressly contravening religious and theological beliefs of your constituents as long as you don’t state honestly that what’s you doing. They’d have been fine striking down the structures as long as they lied about why. Which is why judges can rule that they must have their children treated, or they must buy their employees contraceptives as long as they don’t actually say in the law that they are doing so because they disagree with the theology behind why people want to do what they are being stopped from doing.

    What Constitutional statutes restricts a community from making such statements? The Constitution applies to Federal government, the 18th say that applies to State governments. A zoning board is neither of these things.

    Boonton,

    What do you think the other 3/4 felt the opposite about freedom?

    Well, according to Mr Fisher .. the four colonies had different “Freedom ways” .. New England had its version, which allowed localities to order their town the way they wanted, the Pennsylvania Quakers had a different meaning for the word Liberty or Freedom, which accorded more with our modern notions of equality of opportunity. The Western folkway thought of liberty in a very anarchic/libertarian fashion and the Southern folkway had an ordered notion of liberty which involved striating society between bondsmen, tradesmen, and landed quasi-gentry. The point is that each folkway though of something completely different (and typically quite foreign) to the other folkways when they heard the word Liberty. I don’t think the “other 3/4s” thought the opposite about freedom. They all felt very very strongly that Liberty/Freedom was essential to their life and political health. It’s just that the meaning of Liberty was very very different in the different regions. Again. Read. The. Book. It is very very good. You won’t be sorry.

    The wording of the Bill of Rights and Constitution did not “bind” by its terminology the state and local governments to it. As Mr Schraub points out the 18th bound the states to the same restrictions as the federal. None of this by necessity, (if by practice it does) to the same. As I’ve pointed out, if the state and federal governments insure the jail cells stay open (that you are free to leave if you choose) then it seems to me that local governments should be allowed to make what rules they wish. As an extreme example, a particular monastic community may have vows of silence burdening all who live there. Clearly this violates the First Amendment, but because the members are free to leave that restriction on speech should be allowed. Similarly, I would enjoin that particular small communities should be free to enact their own statues based on their own reasonings and are not covered by statements restricting applicability to the federal and state levels. And furthermore, contra Mr Schraub, I still think honesty is a good policy in personal and legal circles.

  7. Just to be clear by “common folk” I mean people who are not within the legal community.

  8. As a matter of constitutional law, local governments are entirely the creature of their respective state governments, they are for the most part not recognized as independent entities. All restrictions imposed on state government are cross-applicable to local governments, which are solely creatures of the state. So the Fourteenth Amendment (not the 18th, which enacted prohibition) applies equally to state and local governments.

    Of course it is not seriously controversial the motive matters in law. Refusing to zone an area to allow a business to open because you think it will be a nuisance is fine, making the same decision because the owners are Chinese is not. As lawyers, we are in fact not supposed to advise our clients to lie about their motive, if our clients are planning on doing something illegal, we are supposed to advise them not to do it. If they persist and then plan on lying about what they’re doing as a practical matter, we’re permitted to withdraw from representation. Now, as a practical matter it is hard to tell if someone is or isn’t lying about their motives; the law has various heuristics to try and figure out, but it’s undoubtedly a difficult job. Nonetheless, if someone does come right out and announce an illegal motive, that does make the task easier.

    The Tiebout sorting model of allocating different “rights regimes” is an important theoretical contribution to the literature on governance. But it can’t be taken too far. For one, its legitimacy rests on a free “right of exit”, but in reality transaction costs upon exit are very high. For two, it requires a baseline degree of knowledge regarding ones choices and alternatives (and capacity to exercise them), which imposes some restrictions on how restrictive a community can be — it couldn’t, for example, deprive its denizens of information about the alternatives in the outside role, or prevent them from acquiring the skills to partake in these alternatives (see Nussbaum’s “Capabilities Approach”). For three, it has trouble determining a theory of who legitimately gets to make decisions in each locality. The majority? What if the majority wants a different mode of organization? What if the majority initially wants a different mode of organization but changes its mind? What if a subdivision wants to secede? For four, it can’t account for externalities, both material (pollution) and psychic (my community has decided it can’t tolerate that your community allows women to be beaten). Again, I love Tiebout, I teach him in my classes, but he can’t be adopted wholesale.

  9. Here I think you are stepping in it. It’s those arguing against contraception coverage who are making the case that their theology must grant them exemptions from various laws and no one is allowed to challenge that theology. Just take their word for it and let them have their way otherwise you’re ‘infringing on freedom of religion’. Contraception coverage isn’t mandated in health policies because anyone wants to score theological debate points, it’s mandated because most people think it should be covered. Likewise requiring that you treat your child for medical problems isn’t some sophisticated get back at Christian Scientists. It’s required because most people think children should be treated for medical problems by medicine and not doing so for serious problems is child abuse.

    Well, according to Mr Fisher .. the four colonies had different “Freedom ways” .. New England had its version….

    OK so were these different definitions written directly into the Constitution? Why not?

    The point is that each folkway though of something completely different (and typically quite foreign) to the other folkways when they heard the word Liberty.

    And given that they had fought a revolutionary war together, worked together for years under the Articles of Confederation, came together directly to debate the Constitution itself and then that debate was conducted ‘cross all the colonies you think they were totally ignorant of these different views of Liberty?

    The wording of the Bill of Rights and Constitution did not “bind” by its terminology the state and local governments to it. As Mr Schraub points out the 18th bound the states to the same restrictions as the federal. None of this by necessity

    Problem, the incorporation of most (but not all) of the Bill of Rights to the states happened *after* the Civil War. The views of the original colonies is trumped by the views of the then present states that actually wrote and passed the 18th amendment.

    But even before then there were many who felt the Bill of Rights should bind local as well as the national gov’t. Most states copied the Bill of Rights into their own Constitutions and the underlying political theory of the Constitution does seem to imply that a rejection of the view that states come before individual rights….instead it’s the other way around.

    As an extreme example, a particular monastic community may have vows of silence burdening all who live there. Clearly this violates the First Amendment, but because the members are free to leave that restriction on speech should be allowed. Similarly, I would enjoin that particular small communities should be free to enact their own statues based on their own reasonings and are not covered by statements restricting applicability to the federal and state levels.

    I’m unclear how this would be different than a private club or religious institution except such institutions cannot have police powers (i.e. they cannot arrest those who speak and put them in jail….they can only ask that they leave the property).

  10. Boonton,

    OK so were these different definitions written directly into the Constitution? Why not?

    Well, yes … the Consitution is a meta-legal framework … all four concepts of Liberty are workable within the Constitution. There is nothing in the Constitution that prevents a particular New England town from insisting that to marry in their town you must kill five blackbirds along a particular river … or that a West Virginia town couldn’t do their marriages by stylized abduction (see Marriage ways). And to the point, I think many, in particular Franklin, Adams and Jefferson in the Declaration knew exactly that “Liberty” was both very important (and felt a hot point felt threatened by the English rule) and that they knew that the term was very different for the for regions … which is why they didn’t explain a particular “Liberty” was being defended by their document, leaving each region to separately feel enjoined to fight for their own.

    Here I think you are stepping in it. It’s those arguing against contraception coverage who are making the case that their theology must grant them exemptions from various laws and no one is allowed to challenge that theology

    Works both ways. You think they shouldn’t do it (and shouldn’t be allowed to) because their theology is flawed. They want to do what their religion grants. The parallel with the NY case is in the way I indicated, the legal power is restricting the exercise of theological/religious freedom/mandate … except as noted in this case they did the “no-no” of being honest in the explanation of their reason.

    Problem, the incorporation of most (but not all) of the Bill of Rights to the states happened *after* the Civil War.

    This “revelation” is confusing. “As Mr Schraub points out the 18th bound …” is saying what you said. My point is that the “State” laws are bound by the 18th. Parsippany is not a State. My point is that the 18th does not bind Parsippany to follow the Constitution, except by local choice.

    I’m unclear how this would be different than a private club or religious institution except such institutions cannot have police powers (i.e. they cannot arrest those who speak and put them in jail….they can only ask that they leave the property).

    Do you realize that monastic communities do censure and discipline within their bounds? How is that not a police power? Do you not think a monk could not be confined to his cell for speaking? Or some other penance applied? Do you think the only stricture ever put on a monastic after confession is “leave”? Or are you suggesting that only within the mystical world of your imagination for this argument alone?

  11. David
    14th vs 18th .. I was quoting you and didn’t check. Whatever.

    As a matter of constitutional law, local governments are entirely the creature of their respective state governments, they are for the most part not recognized as independent entities.

    A matter of custom not required by the text of the Constitution (or likely most State constitutions).

    Of course it is not seriously controversial the motive matters in law.

    Yah. I know, lawyers love to pretend they have the powers of the “Shadow” and can divine and judge based on motive … but that more typically applies to court cases not legislation I thought.

    Refusing to zone an area to allow a business to open because you think it will be a nuisance is fine, making the same decision because the owners are Chinese is not.

    What this means in practice is that if you zone like NY did but not be honest about your reasons, it’s OK … that is to say you need to have a convincing lie to back you up … but if you’re honest, then you’r in the wrong. You can say “I don’t want that business to open because it will be an eyesore” is OK, but “I don’t like Chinese is not” … the former being your state reason, the latter the actual. See. Honesty is illegal.

    I haven’t read Tiebout … if you recall mostly I’ve gotten this localization idea from Bertrand de Jouvenel (Sovereignty and On Power). I’d enjoined you in the past to read Mahoney’s summary of his ideas but you skimmed it and missed a lot I think (although maybe it was a reaction to my discovery of what I termed “badge-ing” as the elephant not noticed in the room in response to the essays following your suggestion I read “Covering”). Jouvenel has a lot on authority and what makes right authority in Sovereignty which I think answers the question raised by point 3, i.e., when is authority legitimate (short answer authority freely given is legitimate). I think four is overstated, … if we allowed local districts authority to make decisions in 21st century America … I think suggestions that some towns would legalize beating women is theoretical and not realistic, i.e., no American town would actually do that in modern America.

    but in reality transaction costs upon exit are very high

    Bullcrap. How many cities have you lived in the last decade. Four or five? You must be extremely wealth to ovecome those “high exit costs” so many times in such a short span. Or perhaps, more realistically, exit costs are not as high as you pretend.

    , it requires a baseline degree of knowledge regarding ones choices and alternatives …

    Academics like to pretend the common man is incredibly ignorant, pretending that the third world needs “education” to learn about condoms, when in actuality basically everyone on the planet knows about contraception but that in an economic model where your retirement = your children contraception doesn’t make the same sense as it does in an industrialized society. Again … this objection is more theoretical that practical. That is to say it is not an objection that realistically applies to application of strengthening local authority in modern America.

  12. Boonton,
    Sorry, missed this

    Likewise requiring that you treat your child for medical problems isn’t some sophisticated get back at Christian Scientists. It’s required because most people think children should be treated for medical problems by medicine and not doing so for serious problems is child abuse.

    I see. You think their theology is so seriously flawed you don’t even have to reject it to over-ride it? Seems to me that is more egregious than what the NY zoning board did. You don’t even acknowledge that their theology exists. Your modern sensitive liberal multiculturalism must be screaming in pain at that notion.

    Allow me to quote Mr Schraub … “. Refusing to zone an area to allow a business to open because you think it will be a nuisance is fine, making the same decision because the owners are Chinese is not.” Explain to me how your motive is not in direct opposition to their theology?

  13. A matter of custom not required by the text of the Constitution (or likely most State constitutions).

    That local governments have no independent constitutional existence is a constitutional reality, not a custom (nor a matter of state law), for the simple reason that the Constitution does not provide any independent existence to local governments. The Constitution creates a federal government and vests it with certain powers, and reserves all residual power (minus certain restrictions, also contained in the constitution) to the states. It’s a dual sovereignty system — states have all power not given to the federal government or otherwise restricted to them. There is no constitutional space for independent municipal governments. States can voluntarily choose to create (or permit) them, but their power is purely a state creation. See, e.g., Trenton v. New Jersey, 262 US 182, 187 (1923) (“A municipality is merely a department of the State, and the State may withhold, grant or withdraw powers and privileges as it sees fit. However great or small its sphere of action, it remains the creature of the State exercising and holding powers and privileges subject to the sovereign will.”); Barnes v. District of Columbia, 91 U.S. 540, 544-45 (1876) (“A municipal corporation, in the exercise of all of its duties, including those most strictly local or internal, is but a department of the State. . . . . its character and nature remaining at all times the same, it is great or small according as the legislature shall extend or contract the sphere of its action.”).

    Regarding motive, “honesty” isn’t illegal, deliberate religious (or racial) discrimination is illegal. Lying about one’s motives may make it easier to get away with it (though courts do recognize that people lie and try to see past it), but it isn’t “honesty” that’s being criminalized. Similarly, if I murder someone and admit it, it’s easier to convict me than if I murder someone and deny doing it, but it isn’t the confession that’s criminalized, it’s the murder. As to whether questions of motive apply to legislative enactments, they do.

    The response to the problems with Tiebout sorting are similarly unpersuasive. Even if we do think that psychic externalities don’t exist, which is doubtful (it doesn’t have to beating women — some localities may be outraged that the neighbors bar, or permit, abortion), material externalities (such as pollution) obviously do. “Authority is legitimate when it is freely given” raises more questions than it answers, including what qualifies as “freely” and whether one can withdraw consent to it. Exit cost are high — I’ve moved quite a few times, but only once have I paid for it out of pocket (my move to college was paid for by my parents, most of my other moves were paid for by my job). And all of my moves have been either for education or employment, I haven’t had to move in order to be Jewish. I definitely couldn’t afford to constantly move as a form of “voting with my feet”, and I am someone with a lot of social and economic capital to fall back on. Finally, with respect to knowledge and capabilities, the point is it imposes a restriction on how local communities can self-regulate. They couldn’t decide, for example, not to allow women to be educated. Hopefully most communities wouldn’t make that choice even if they were free to. Nonetheless, it is a valid restriction to put upon local communities. More on point, a community could not restrict people from reading “foreign” news sources or to freely learn and deliberate about other life choices or philosophies critical of that predominant in the community — and there are plenty of American communities which very much would like to prevent such things. Hence, the model requires robust protections for freedom of speech and association even if a particular community would rather suppress such heresies.

  14. Works both ways. You think they shouldn’t do it (and shouldn’t be allowed to) because their theology is flawed. They want to do what their religion grants.

    Not quite, I think their theology is irrelevant to the question. You’re free to think contraception is bad, you’re also free to think electricity is bad. The mandate argument isn’t about whether such views are right or wrong but whether they allow the holder to ‘mandate’ them back at everyone else. For example, consider a special tax break to encourage nuclear power plant construction. Imagine an Amish-inspired man running a fuel from manure business whose against electricity for theological reasons. I’m fine with him not using electricity, I’m fine with him not investing in nuclear power plants, I’m not fine with an argument that any financial hardship (such as higher tax rates on non-nuclear businesses that don’t benefit from cheap electricity) that may indirectly result from his practice represent a violation of religious liberty.

    And to the point, I think many, in particular Franklin, Adams and Jefferson in the Declaration knew exactly that “Liberty” was both very important (and felt a hot point felt threatened by the English rule)

    I doubt anyone in the Revolution felt that there was a threat of English rule trying to make American marriage customs uniform.

    My point is that the “State” laws are bound by the 18th. Parsippany is not a State.

    Parsippany exists as an extension of the state of NJ and those who wrote the 18th would see it that way too.

    Do you realize that monastic communities do censure and discipline within their bounds? How is that not a police power?

    If I break the law in Parsippany, they can issue a warrant for my arrest even if I leave the town and go somewhere else. Parsippany has a jurisdiction. A club doesn’t. If I break the code of the the Moose Country Club, they can ask me to leave their property but that’s it.

    Do you not think a monk could not be confined to his cell for speaking?

    No he cannot as even on the private property of the monestary, Parsippany township, Morris County, the State of NJ and the United States has not extended its police power to the monestary. They can tell him confinement to his cell is a condition on remaining at the monestary, they cannot literary confine him to his cell without regard for his will. On the other hand the chap who doesn’t pay his speeding ticket to Parsippany cna be so confined to a cell.

    to me that is more egregious than what the NY zoning board did. You don’t even acknowledge that their theology exists. Your modern sensitive liberal multiculturalism must be screaming in pain at that notion.

    Actually I’m not sure I’m with David, as long as a legislature is not actually acting to deny due process, equal treatment or freedom of religion, their motives are irrelevant. To use the Chinese example, I could imagine a zoning board deciding to ban eateries that specialize in takeout food absent so many eat-in tables and absent a drive-thru (to make it difficult to have Chinese lunch places). Even though the motive is bias, there’s no issue with the rule provided it’s enforced regardless of the race.

    Consider this, imagine a pagan whose elected to a zoning board who announces he will use astrology to caste all his votes. You, pious Christian, apply for a variance to extend your driveway. 3 of the members vote not because they think long driveways ruin the neighborhood, 3 vote yes and the 4th votes no because Mars is in Aquarius. Does this mean you can sue on the grounds that you’re being forced to abide by astrology, which you find sinful? That would create a strange dynamic, you would get your variance because you’re a Christian while someone else wouldn’t.

    IMO the zoning board could use any criteria they wish to make policies, but such policies have to be evenly enforced and not designed to target any by race or religion. In that case evidence for motive might be part of the argument but otherwise the board is free to say no to stringing wires between the houses of Orthodox Jews.

  15. Boonton,

    that debate was conducted ‘cross all the colonies you think they were totally ignorant of these different views of Libert

    You could support that claim (that those arguing were conscious of their different notion of liberty) … by quoting Federalist and anti-Federalist passage that support your claim. I’ve quoted a book citing that the differences exist, there is a second book by Fisher on just Liberty through the following two centuries. My claim is that this term has not one meaning and that the different meanings are non-overlapping. Do you dispute this?

  16. Also, can we stress here that I’m not arguing about my personal beliefs about what Good Government is, but what is and isn’t permissible under our current constitutional structure? Because — theory of law 101 — those are not the same things.

  17. David,

    That local governments have no independent constitutional existence is a constitutional reality, not a custom (nor a matter of state law), for the simple reason that the Constitution does not provide any independent existence to local governments.

    Uhm, as I said, “as a matter of custom” .. this is the custom, yet it is not a Constitutional requirement. The Constitution as you point out doesn’t make a distinction between states and local goverments and all rights not reserved in the Constitution are not granted to the Federal state … the point being their is no actual Constitutional basis for not allowing local governments the authority in question … just custom. If you disagree, point to the text in the Constitution which would forbid that.

    Lying about one’s motives may make it easier to get away with it (though courts do recognize that people lie and try to see past it), but it isn’t “honesty” that’s being criminalized.

    Uhm, in your original post you were pointing out they could have done what they wanted had they not gone and tried to make a theological point. You are explicitly pointing out that if they had left their reasoning out of their finding they’d be OK.

    (it doesn’t have to beating women — some localities may be outraged that the neighbors bar, or permit, abortion),

    And the standard classical liberal response is that this is the cost of living in Babylon, i.e., a non-monocultural society. If you don’t like the neighboring town serving alcohol the flip side is you can actually forbid it in your own, which you couldn’t before. As far as pollution and so on, the purpose of the State is to adjudicate disputes between towns … just as the Feds adjudicate differences between states. That objection is, to borrow your phrase, unpersuasive. Likewise your point that your employer “paid” for you move. The point was, this was part of your renumeration … and gosh seeing that you aren’t hyper-rich this wasn’t as expensive as you pretend. You are a member of a society in which every single person on the Continent moved to get here. Furthermore, if you lack much in the way of possessions and society … it is even cheaper to move. The mobile vagrants in our society are not the hyper rich. Pretending the cost of moving is so high is as you say, unpersuasive as well.

    They couldn’t decide, for example, not to allow women to be educated

    As I said before, we’re talking about America. Saying “we’ll not let women be educated” .. uhm. Get real. Fantastic pretend objections are the very opposite of persuasive. If you want to make an objection, try something that might be feasible in 21st century America.

  18. Boonton,

    Not quite, I think their theology is irrelevant to the question.

    This is the theological point on which they disagree. Your beliefs in God are irrelevant is a statement of theology. You are making a religious statement.

    Imagine an Amish-inspired man running a fuel from manure business whose against electricity for theological reasons.

    And to be parallel you’d also insist that he must hire people who use electricity. I say freedom of association should let him hire whom he pleases, i.e., other people who don’t use electricity and make non-electricity use a condition of employment. We’ve had this argument before, you don’t think small businesses (or business of any size) have the right of freedom of association. I disagree on that.

    I doubt anyone in the Revolution felt that there was a threat of English rule trying to make American marriage customs uniform.

    Doesn’t make it not true. New Englander’s fought English rule prior to the revolution to defend their public liberties such as their marriage customs.

    Parsippany likely predates New Jersey’s becoming a State. It’s unclear why you think that their legal existence flows from something that came later.

    No he cannot as even on the private property of the monastery

    I see. Monastics are never then confined to your cell. Back in the real world … it happens. Deal with it. Exile is not the only penance dealt out by monastic authorities.

  19. . Your beliefs in God are irrelevant is a statement of theology. You are making a religious statement.

    I suppose this may be a ‘meta-theological’ statement. But not a very important one. Do Kosher Jews obsess over the fact that others do not keep their dietary laws? I don’t think so. Do non-Jews find it unbearable that Jews don’t eat pork and demand that laws be passed that everyone eat some amount of pork each year to demonstrate that they don’t abide by ‘theological error’? Not since the middle ages I think. Zero sum theocracy is the one concept that liberal democracy has to say no to. Even there, though, you are free to advocate for it, just not free to ever get it.

    And to be parallel you’d also insist that he must hire people who use electricity. I say freedom of association should let him hire whom he pleases

    Not sure what that has to do with the contraception analogy. You may be interested in knowing that some Catholic school systems in states that already had contraception mandates require their employees to take pledges not to use contraception and abortion…even if covered. Granted I suppose some employees may lie but on their honor they are required not too use contraception. I suppose the small Amish guy could require the same for his employees…esp. if his business is very small.

    Doesn’t make it not true. New Englander’s fought English rule prior to the revolution to defend their public liberties such as their marriage customs.

    Can you point to an actual major difference between British and American marriage customs and an example where the British tried to force their marriage customs on the US colonies? Keep in mind many of the New England colonies were dumping grounds for the religiously ‘offbeat’ (Quakers, Puritans, etc.)

    Parsippany likely predates New Jersey’s becoming a State.

    Yes, but it doesn’t predate NJ being a colony. After a brief stint as ‘New Netherland’ and ‘New Sweden’ in the south, the British took over the whole thing in 1664 establishing the colony of ‘New Jersey’. Parsippany lives as a creation of New Jersey, New Jersey does not exist as an amalgamation of its tiny towns. You may have an argument along these lines if you’re talking about Native American tribes whose ‘reservations’ are recognized by treaty as nations in themselves (but with a kind of joint citizenship).

    I see. Monastics are never then confined to your cell. Back in the real world … it happens. Deal with it.

    Not without their own consent, otherwise it’s kidnapping. Are you saying ‘in the real world’ if a monastic doesn’t want to be confined, insists upon leaving, he is held captive against his will? If so then you’re describing a criminal cult. Between this and Parsippany police arresting someone for not paying his parking ticket there is a world of legal difference.

  20. Uhm, as I said, “as a matter of custom” .. this is the custom, yet it is not a Constitutional requirement. The Constitution as you point out doesn’t make a distinction between states and local goverments and all rights not reserved in the Constitution are not granted to the Federal state … the point being their is no actual Constitutional basis for not allowing local governments the authority in question … just custom. If you disagree, point to the text in the Constitution which would forbid that.

    I’ll take a stab at this. The 10th amendment clearly states powers not delegated to the Federal gov’t, nor prohibited by it to the states are reserved for the states or to the people.

    What’s devastating to your argument here is the 10th is trying to talk about not only the powers in the Constitution but the ‘unknown powers’ the document does not specifically address. ALL of them are either in the hands of the states or the people. What’s missing there is ‘local government’. While the amendment doesn’t give us any methodology for finding out about these powers and how they are to be handled, the complete neglect of ‘local gov’t’ indicates that those who wrote the document clearly did not think of towns, cities, counties as entities that existed outside of their state (or at that time colonial) governments. The Constitution not only fails to make provision for ‘local gov’t’ sitting between individuals and states, it actually precludes it by providing no actual powers that could be thought of as ‘organically’ belonging to local gov’t.

    So sure Parsippany cops can pull you over and ticket you for speeding, but tomorrow NJ could decide to abolish township police and have state troopers do all traffic stops. The Federal gov’t, though, couldn’t decide to just split NJ into two new states, or let New York and PA split NJ amonst themselves.

  21. Boonton is quite right. The Constitution absolutely distinguishes between state and local governments, in that the former are mentioned (a lot) — allocated and deprived of various powers — and the latter are not. The Constitution channels popular sovereignty through two entities — states and the federal government. Local governments aren’t part of the system. States maintain a residual authority to, inter alia, allow cities to do things, but its not considered functionally different from any other agency or department the state might create.

    And the standard classical liberal response is that this is the cost of living in Babylon, i.e., a non-monocultural society. If you don’t like the neighboring town serving alcohol the flip side is you can actually forbid it in your own, which you couldn’t before. As far as pollution and so on, the purpose of the State is to adjudicate disputes between towns … just as the Feds adjudicate differences between states. That objection is, to borrow your phrase, unpersuasive. Likewise your point that your employer “paid” for you move. The point was, this was part of your renumeration … and gosh seeing that you aren’t hyper-rich this wasn’t as expensive as you pretend. You are a member of a society in which every single person on the Continent moved to get here. Furthermore, if you lack much in the way of possessions and society … it is even cheaper to move. The mobile vagrants in our society are not the hyper rich. Pretending the cost of moving is so high is as you say, unpersuasive as well.

    (1) It seems your defense of your position is “localities should be allowed to do what they want, so long as it isn’t really bad, or causes negative externalities, both of which I think are rare.” So what this really boils down to is what rights are important enough, or what externalities severe enough, so that local communities should be precluded from doing them. Which, fine, albeit this isn’t part of constitutional law. (2) I think you mean the classical pluralist response. While classical liberals are committed to diverse ways of pursuing the good life, they still are bound to certain substantive commitments. Mill, for example, would not be okay with restrictions on free speech — something many diverse localities would very much like. (3) I’m not sure how you’re so sure of my financial status. (I’m also not sure why “paid” is in quotation marks) I’ve had two jobs pay my moving expenses. Without going into too much detail, the first (which was my first after graduation) paid more than the national median income by a 5-figure margin. The second (my latest move) pays six-figures plus a five-figure signing bonus. I am not a typical American. And I’m moving because I got a job — my costs would shoot up if I was just moving to protest, say, environmental policy and had to quit my job without guarantee of another job at the end. More to the point, when it comes to certain fundamental rights, I’m not sure any non-zero transaction cost is low enough to justify depriving it. This goes double for rights-restrictions that themselves raise the transaction costs (like limitations on one’s ability to obtain information about the outside world).

  22. Boonton & David,

    You’re both making things up here. New England had fought a war of Independence to secure what they termed Publick Liberty, yet 10 years later they just gave it all up and they completely abandoned their notion of liberty? No. That is not feasible. What they did, was read into the Constitution and unenumerated rights reserved to the people as giving them that particular public liberty for which they fought, and no … Boston wasn’t getting the go-ahead to take it either via the Constitution. What I’m missing is how you arbitrarily decide that a quarter of the Nation’s understanding of the second word in “Life, Liberty and the Pursuit” somehow didn’t mean what they understood by the term Liberty. Your argument on how they get left behind is missing.

    Which, fine, albeit this isn’t part of constitutional law.

    That’s right. The Constitution permits what I suggest and within the text and original meaning (as noted above) and at the same time (looking at other regions) would allow the a Constitutional state to move to prevent it. The Constitution permits Public Liberty. It has to, at the time of it’s writing it was the fabric of a fourth of the Nation.

    Without going into too much detail …

    And you oddly decide to ignore the actual costs of moving, which are not as exorbitant as you suggest. And if you have little to no possessions … the cost is so low as to be virtually zero. And “no guarantee of a job at the other end” … uhm, there are jobs out there. You just have to be willing to do them. South Dakota will pay well for anyone willing to swing a wrench, so will other energy regions. My wife just managed to find funds to assisted a homeless elderly woman to move across the country with furniture, car, and self. This far from a five figure transaction, and as pointed out if you don’t a third of a trailer load of stuff and don’t have a car … the cost just dropped to low 3 figures not 5 or six (and less than three (two) if you are willing to ride a bus).

    my costs would shoot up if I was just moving to protest

    How’s that work? The price the mover charges increases if you are paying for it? Methinks that goes the other way. If you were paying you’d be able to cut costs somewhat. As I said (and you ignored) every single person on this Continent moved here. If costs of moving were so high psychically and financially … how’d that ever occur?

    More to the point, when it comes to certain fundamental rights, I’m not sure any non-zero transaction cost is low enough to justify depriving it.

    I see. Like the right to bear arms? Sorry, what I meant is that you have some rights you find fundamental … others in other places put other rights as more fundamental. What I’m not getting is your reason for forcing everyone to abide by the same set. Take marriage ways, why do you think it is more free for Washington to dictate there be one universal federally sanctioned correct way … why can’t the art communities in San Fran, Mormons in Utah, Amish in Eastern Ohio, Muslims in Lansing and so on all be free to develop and nurture their own local ways (for marriage, death, birth and all that) … why is it more conducive of Liberty to have eggheads (err not egg, knuckle is more like it) in Washington to decide how everyone has to do it. The Constitution does not forbid Public liberty. You do. I’m arguing for Public liberty because without it I don’t think any liberty will survive in this country, I think our freedom ways will atrophy because others decide what is best for us and after a few more generations pass … it will have passed from memory.

  23. Boonton,
    I’d lent Albion’s Seed to a friend. And yes, examples like that were in the book (of the British restricting Publick Liberty).

    And New Jersey was part of the same folkway as Penn. It didn’t find Public Liberty part of its heritage.

    Are you saying ‘in the real world’ if a monastic doesn’t want to be confined, insists upon leaving, he is held captive against his will?

    Mr Schraub was citing the high psychic (spiritual) costs of leaving … which is something you apparently suggest doesn’t exist. Most people, I suspect, consent to their being jailed. Few fight to the death or flee the country to avoid it. And isn’t parking a civil crime … and didn’t you say persons could ignore civil suits some time ago because they weren’t enforceable?

  24. And isn’t parking a civil crime … and didn’t you say persons could ignore civil suits some time ago because they weren’t enforceable?

    Parking tickets are usually a crime, a petty crime. A ‘civil suit’ is a law suit for damages or sometimes for some action (such as an eviction order on a non-paying renter). Civil lawsuits result in judgements and no they can’t be just ignored but they are limited in scope. You usually can’t be put in jail for refusing to pay them but you can be made to surrender your assets. This, of course, assumes you have assets that can be attached by the judgement. If you don’t you’re essentially ‘judgement proof’, which means a creditor can win a judgement against you but will find it almost impossible to collect.

    But while you can ignore them, doing so may screw your life up down the line. My father-in-law once was perplexed to get a check for $20,000. When he researched it, he found it had came from a customer who 15 years ago had not paid his bills and went onto other deals using a different name. They had gotten a judgement against him but assumed it was hopeless. For whatever reason the man wanted to get a real estate license but a condition of the license was to clear all judgements so he had to make good on a debt he thought he had ditched nearly two decades before.

    Regarding localities, you forget your assertion:

    A matter of custom not required by the text of the Constitution (or likely most State constitutions).

    The problem is the tenth clearly states political power only exists in 3 entities, the Federal gov’t, the state, or the people. Local gov’t was seen as a creature of state gov’t. The states were not miniture versions of the US with cities and towns serving the role of states.

    You’re both making things up here. New England had fought a war of Independence to secure what they termed Publick Liberty, yet 10 years later they just gave it all up and they completely abandoned their notion of liberty?

    Can you cite any evidence that Boston considered itself independent of Mass? That New York state’s relationship to Buffalo and Albany and NYC was the same as the relationship between Washington DC and the state of NJ, PA, or Vermont?

    Also since we are discussing incorporation of the Bill of Rights here, let’s keep in mind the post Civil War amendments were enacted in order to prevent the south from reinstituting slavery. That meant the whole south, not just the state governments but local gov’ts were ‘untouchable’. That was not the idea of either the people who wrote the Constitution nor the people who wrote its amendments.

    You may want to examine http://en.wikipedia.org/wiki/Home_rule_in_the_United_States and Dillon’s Rule. In essence it says local gov’t only has absolute authority if it was expressly granted in the state consititution. There is nothing prohibiting a state from merging its counties, or breaking a city into two municiple units rather than a single one, yet the Constitution does not allow the Fed. gov’t to do that with the states.

  25. Boonton,

    The problem is the tenth clearly states political power only exists in 3 entities, the Federal gov’t, the state, or the people.

    So what you are saying is that the New Englanders, who were probably the firmest against slavery, allowed the 10th to move slavery and in doing so, likely knowingly, ceded their own version of liberty to free the slaves … and to remove public liberty from the Southern peoples who were they felt most likely to abuse that freedom.

    Then we’re screwed. I don’t see any way past us losing all our freedom in the next century. I held out hope that localization and a renewal of public liberty might be a way out. But you’ve successfully argued that this liberty was given up 150+ years ago. The US as a free people in a republic will cease to exist. Thanks for playing. That’s the most depressing notion I’ve run across in a long time.

    Can you cite any evidence that Boston considered itself independent of Mass?

    I see no evidence you understand the term public liberty. This question is furthers that notion.

  26. So what you are saying is that the New Englanders, who were probably the firmest against slavery, allowed the 10th to move slavery and in doing so, likely knowingly, ceded their own version of liberty to free the slaves

    I’m not clear how you think the 10th would have prevented New England states from prohibiting slavery. And you of course have the actual Constitution which explicitly permitted slavery until at least 1808 so on some level New England was agreeing to slavery when they adopted the Constitution.

    Then we’re screwed. I don’t see any way past us losing all our freedom in the next century.

    I’m not at all clear what freedom you seem to think we are losing or lost? You seem to be saying if you live in a state that adopts a law you don’t like, you’re screwed. But if you subdivide your town enough you can eventually get a polity so small it will either have all the laws you like or it would be easy to get to one that does. But infinite subdivision costs us other freedoms, like the freedoms enjoyed by economies of scale.

    Consider segregation. The freedom of a town to segregate may be lost. But consider the freedom to move about without worrying about segregation. If tomorrow we had a patchwork nation where if you drive at 60 mph every ten minutes you’re under a totally different regime you’ve lost the freedom to travel in a carefree way.

    I see no evidence you understand the term public liberty. This question is furthers that notion.

    I admit I’m not finding your explanation very clear.

  27. Boonton,

    I’m not clear how you think the 10th would have prevented New England states from prohibiting slavery. And you of course have the actual Constitution which explicitly permitted slavery until at least 1808 so on some level New England was agreeing to slavery when they adopted the Constitution.

    Uhm, what I said (edit: .. tried to say) was that the New Englander’s after the Civil war agreed to the 10th, sacrificing their own public liberty, in order that the South could not use Constitutional protection of that same local freedoms in their own region to continue to abuse the former slaves. Hello? I have no idea how you could read what you suggest into what any one might say. Re-reading what I wrote, it was not the clearest. But geesh.

    I’m not at all clear what freedom you seem to think we are losing or lost

    By ceding all our decision to central authority where our own democratic instincts are pro forma and basically meaningless we are going to lose our liberty because we forget what that means.

    Consider segregation. The moral question of segregation disappears if someone else dictates your possible choices.

    Public liberty was a conception of liberty that was not centered in personal freedoms but instead the freedom of a community to order its affairs as they wished. It is a community not personal centric notion of liberty.

    My suggestion to counter centralization is to empower local communties to again order their own affairs. Moral questions of segregation (or more realistically in the 21st century, of marriage, abortion, immigration and so on) if decided in your local more people are likely to be involved in the debates, in considering policy, in practicing democracy. And as I noted, why do disparate culturally foreign locals have to have the same marriage ways? Why does a 90% gay, a 90% Mormon, a 90% Muslim, a 90% SBC, and a 90% Lutheran community all have to have the same laws regarding marriage and divorce? Jouvenel also noted that in Babylon (multi-cultural societies) people envy the single cultural city-states because they have more sense of belonging, more loyalty, and more feeling of place. I suggest you can have your cake and eat it too. I think in the modern era we can build a patchwork of small localities which can develop their own cultures but with modern communications can do so within the framework of the Republic designed by our Constitution. But apparently the 10th makes that impossible. As I said, today’s democracy is devoid of personal practice of democratic interactions. We’ve lost that. TV broadcasts of scripted “town meetings” are not actually town meetings.

  28. Boonton,
    It occurred to me, part of democracy is people sitting down and talking with people with whom they disagree. We do that on a regular basis. But look at Mr Schraub, for example. He is a highly intelligent liberal. He is on track to be either an academic teaching law, or one of the Washington elite. Yet, on his blog he notes the following “this considerably narrows the …”

    Look. I have several thousand blogs on my RSS feed … and as noted frequently I request from those like you for good thoughtful liberal blogs .. but rarely get any pointers. I also peruse a few newspapers. The point is his three criteria exclude none of the opinions I’ve seen on Syria, but apparently they do for many of his. My feed contains more conservatives than liberals but none have “blamed the Jews”, none have called for impeachment, none have advocated bombing the entire region to glass.

    What does that portend for our future liberties and democracy that a typical young modern liberal, ensconced in liberal academia and legal circles has managed to virtually entirely isolate himself from any and all reasonable opposing viewpoints. He’s found the anti-town meeting place to visit on a regular basis, viewing apparently only the worst of the opposition and echo chambers for his own ideas.

  29. Uhm, what I said (edit: .. tried to say) was that the New Englander’s after the Civil war agreed to the 10th, sacrificing their own public liberty, in order that the South could not use Constitutional protection of that same local freedoms in their own region to continue to abuse the former slaves.

    I think you mean something other than 10th here since the 10th was well before the Civil War. But let’s go with pre-civil war. Let’s say NJ valued its public liberty in order to ban slavery inside the state. Problem, what about Parsippany? What if Parsippany was really pro-slavery? If it was, then NJ couldn’t really ban slavery could it? Some of its towns would have slavery, some wouldn’t.

    NJ could ban slavery, though, if you said the State of NJ trumps anything individual NJ towns wanted. In that case Parsippany has to abide by whatever NJ as a state decides. Or you could say that the state itself has to abide by whatever individual towns say. Either the state is powerful, or the towns are, but not both.

    The US Constitution solves this problem by dividing the power. There are things the states do that the Fed. gov’t doesn’t. There are things the Fed. gov’t does that the states doesn’t, and there are a few things that both state and Federal gov’t does (for which there are rules about who trumps whom in case of a conflict).

    Here’s your problem, the Constitution doesn’t divide power between states and towns. But it does clearly recognize states and assigns them powers. That makes a town/village/community centered view of things pretty tough to pull off IMO. After the state you leap to the individual people, as the tenth seems to imply. Not another layer of middlemen (why does your system divide between state and local? Why not state, county, city, precinct, block captain and so on? If a group of towns form a ‘community’ does that become an entity that can boss around not only the state but the other member towns? Why not?)

    My suggestion to counter centralization is to empower local communties to again order their own affairs. Moral questions of segregation (or more realistically in the 21st century, of marriage, abortion, immigration and so on) if decided in your local more people are likely to be involved in the debates, in considering policy, in practicing democracy. And as I noted, why do disparate culturally foreign locals have to have the same marriage ways? Why does a 90% gay, a 90% Mormon, a 90% Muslim, a 90% SBC, and a 90% Lutheran community all have to have the same laws regarding marriage and divorce?

    1. They don’t, any divorce lawyer will tell you laws differ dramatically from state to state.

    2. You neglect the value of economies of scale here. Unlike the past we are more closely connected by shared mass culture, by faster transport, by communications. Maybe you could tell me 150 years ago there was a real cultural gap between North and South Jersey, that’s a lot less plausible today. Technology made cities possible by allowing workable sanitation and supply logistics. It seems very plausible that modern technology would make communities even larger. Think about what it would mean to someone in 1700 to have to work 50 miles from where they sleep every night. Today that’s just an annoying commute.

    What does that portend for our future liberties and democracy that a typical young modern liberal, ensconced in liberal academia and legal circles has managed to virtually entirely isolate himself from any and all reasonable opposing viewpoints.

    And yet he made his way here to challenge your writing? His bubble must not be as thick as you imply. As for what it portends, I would put forth we are less intellectually isolated today than we ever were. I would say an intellectual in the South could spend quite a bit of his life never hearing a single serious anti-slavery argument. Today, though, even deep in the Bible belt one is probably likely to at least once encounter a serious argument in favor of gay marriage, or for atheism, or for distrust of organized religion etc.

    But the flip side to this is that popularity becomes a more potent force for uniformity. America has been loosing its dilects for decades now. Mass media means being able to listen to anyone, and that means people will flock to ‘superstars’ which means speech will become more uniform as they become the ‘model’.

    But speaking of thick bubbles,

    My feed contains more conservatives than liberals but none have “blamed the Jews”, none have called for impeachment, none have advocated bombing the entire region to glass.

    He seems to have encountered a more diverse range of opinion on Syria than you have. Granted a lot of that diversity seems to consist of crap that isn’t very helpful, but one way of fishing is to spread your net far and wide in the hopes of catching just one good thing amonst all the flotsam and jetsome you rake in.

  30. Boonton,

    1. They don’t, any divorce lawyer will tell you laws differ dramatically from state to state.

    Except most states have that diversity within the. My guess is that few divorce lawyers will tell you that laws differ dramatically from town to town, even though the demographics within those towns do differ dramatically. My question remains unanswered.

    Maybe you could tell me 150 years ago there was a real cultural gap between North and South Jersey, that’s a lot less plausible today.

    Except it does differ. Lemont, my home town, differs from “Boystown” in Chicago (3200 north near the lake), which differs from South Chicago black neighborhoods, which differs from Polish neighborhoods, which differs from Hispanic ones, which differs from Chinatown, … and so on. So again, my question remains unanswered, where is the wisdom of making their divorce laws uniform?

    And yet he made his way here to challenge your writing?

    Yes. We’ve been exchanging remarks on our blogs since he was a Sr in High School.

    America has been loosing its dilects for decades now.

    Might be true, might not be. Cite?

  31. Boonton,

    NJ could ban slavery, though, if you said the State of NJ trumps anything individual NJ towns wanted. In that case Parsippany has to abide by whatever NJ as a state decides. Or you could say that the state itself has to abide by whatever individual towns say. Either the state is powerful, or the towns are, but not both.

    OK. So what I’m suggesting (not regarding actual slavery … but marriage, divorce, euthenasia, abortion, religion and its role in public life, and many if not most of the contentious issues we have) is that the state choose not to decide, to leave it up to the towns. But they can’t do that if the feds don’t let them do that too, i.e., the Feds also have to keep their grubby power greedy paws off these decisions.

  32. Boonton,

    Not another layer of middlemen (why does your system divide between state and local? Why not state, county, city, precinct, block captain and so on? If a group of towns form a ‘community’ does that become an entity that can boss around not only the state but the other member towns? Why not?)

    I’m not dividing those conceptually. I’d like to push as much decision making locally. Remember the reason I find this important is that I feel we are deep in the process of losing our democratic instincts. We can’t get them back unless (a) things matter locally and (b) things can actually be decided by people locally.

  33. My guess is that few divorce lawyers will tell you that laws differ dramatically from town to town, even though the demographics within those towns do differ dramatically.

    I can think of a big con if they did. Everywhere you go law is uncertain and highly specialized. Lawyers, already a highly paid guild class protected from competition, would become even more protected from competition….after all any NJ lawyer can do a divorce for you today but how many lawyers will be versed in Parsippany vs Newark divorce law? Under such a scheme, the regular person who just needs basic legal services would be very put out and the very well off person would have multiple opportunities to game the system by venue shopping and cheap payoffs to local officials.

    This is a serious con but I don’t think you have much of a pro to give me in compensation. You claim ‘closer democracy’ but that promise doesn’t feel very secure to me at all.

    Except it does differ. Lemont, my home town, differs from “Boystown” in Chicago (3200 north near the lake), which differs from South Chicago black neighborhoods, which differs from Polish neighborhoods,

    Of course they differ, but they almost certainly differ by less today than they had at previous times in history. Tell me, how many different newspapers serve chicago today versus 95 years ago? How many different language newspapers do so? Your perception of cultural diversity is being feed by the fact that there’s actually less and less of it. It’s a bit like smoking. If someone smoked in your car, you’d probably be able to smell it a week later. 40 years ago, people didn’t notice the smell of smoking unless someone was puffing it in their face. One might think the smell of smoke has gotten worse, in reality our sensitivity to it has increased.

    So again, my question remains unanswered, where is the wisdom of making their divorce laws uniform?

    But as you note they aren’t uniform. They differ from state to state and can even differ inside a state if you have Indian reservations with their own system or the various types of private law that people can employ (binding arbitration). You are really asking why shouldn’t divorce law be made less uniform?

    My answer is that there’s no doubt some optimal middle ground where you start getting inefficiencies and abuses if you make divorce laws more grainular (the most extreme you could go to would be letting law vary couple by couple!) but if you make it much more uniform you start losing the ability of different regions to express their wishes democratically.

    I think the reality is we are at the point where that optimal point is either at the state level or even wider. Many state laws are actually ‘model laws’ or ‘uniform laws’ where a state legislature enacts some model law either in whole or with minor variations here and there. Even a state as big as Texas or California would not be made better by breaking up the lawmaking.

    I also think we can objectively test this. If you’re theory is correct, you should be able to demonstrate states that have a large population spread over a large geographical area with more diversity should be less democratic, less free and less good than small states with more uniform population. By your reasoning Mass., Conn, or HI are more like your vision of local town rule than Texas, California or New York.

    Might be true, might not be. Cite?

    Try

    http://www.cbsnews.com/video/watch/?id=7409252n

    Not sure how you’d establish a broader measure of cultural unification objectively. I think part of the work can be done by exploring how common knowledge is of local folklore is in various areas versus mass culture. For example, I suspect you’ll find a low number of New Jersians who are familiar with the Jersey Devil. But most will know who Luke Skywalker’s father was or who is a better student, Bart or Lisa Simpson? Ask yourself how familiar would the average Confederate citizen be with the plot of the most popular play put on in NYC? Could the man about town in Philly have been expected to be well versed in the leading intellectuals and men of letters of S. Carolina? In terms of both high and low culture I’d bet we are more uniform now than before. You could make an interesting argument that in itself is a problem. But it’s not clear to me making gov’t more atomic would do anything about it.

  34. It also occurs to me there’s another place you could conduct a study of both your theory as well as my assertion of greater cultural uniformity; manners. Manners and law share a lot in common. Both regulate how one conducts oneself with their fellow humans. Both restrict individuals from always acting as they please. Both have provisions for enforcement and punishment of transgressions but also limits on the jurisdiction and powers of those who would judge. Both also have their lawyers and theorists. Both are derived from tradition and the changing practical needs of people. For your theory formal law has not imposed any uniformity based on size. Manners are free to be uniform over huge regions or are free to vary from town to town. Dallas and Fort Worth may have to have the same law when it comes go gay marriage, but there’s nothing stopping Dallas from deciding a polite man walks down the street with a lady to his left side while in Fort worth he should walk on the outside and in Galivston it’s to his right.

    Yet I suspect if you did conduct a study of changing manners over time and space you’d find convergence in manners…despite the county expanding geographically and by population. This would be esp. problematic for your theory since the cost of having many different manners regimes wouldn’t be that high. The worst that usually can happen to you when you violate manners is social disapproval. It’s not like every time you took a cross country drive you’d have to hire a lawyer to save you from getting life in jail or hanged! The country has nearly unlimited freedom to divide itself into as many small manners regimes as it pleases and each locality can make itself as distinct as it wishes with its local manners. Yet why does there seem to be a lack of diversity in local manners?

  35. Boonton,

    I can think of a big con if they did.

    And can you think of a way around that? And economically speaking it might work the other way, that lawyers would become less specialized and protected, because a guild lawyer who can now practice all over can’t do so effectively any more which could mean the door opens for nonprofessionals, instead of the door closing tighter.

    You claim ‘closer democracy’ but that promise doesn’t feel very secure to me at all.

    That’s because you’re an elitist Democrat. Seriously, the elitist point is demonstrated in the Kingsbury story Moon Goddess and the Son (Sun?) … in which a revolution is sparked in Russia … and the remark is made the problem with revolutions is that the leaders of the revolution have a hard time trusting the people to setup and govern, which seems an accurate assessment of why the French and Russian revolutions failed so poorly.

    Of course they differ, but they almost certainly differ by less today than they had at previous times in history

    I’m not sure that’s true. Chicago was probably more culturally unified 100 years ago than it is today.

    Tell me, how many different newspapers serve chicago today versus 95 years ago?

    I don’t know the answer to that, but I suspect that 100 years ago you couldn’t buy Taiwanese, Chinese, Polish, Lithuanian, Georgian, &c papers in shopfronts esp in ethnic neighborhoods like you can today. You mistake corporate evolution for diversity.

  36. because a guild lawyer who can now practice all over can’t do so effectively any more which could mean the door opens for nonprofessionals, instead of the door closing tighter.

    Not really seeing how? Sure maybe you don’t need a license to be a lawyer for Parsippany but the fact that Parsippany law might be very different means only a few people will be able to handle such a case well. Unlike today where you can pretty much be assured anyone who passes the NJ bar can handle a Parsippany case.

    the problem with revolutions is that the leaders of the revolution have a hard time trusting the people to setup and govern, which seems an accurate assessment of why the French and Russian revolutions failed so poorly

    I’m still not seeing why people electing politicians at the state level is ‘not trusting the people’ but electing them at the town level is.

    I’m not sure that’s true. Chicago was probably more culturally unified 100 years ago than it is today.

    I’m going to bet it wasn’t but this indicates the problem with your idea. What should Chicago be? If the ‘atomic unit’ is the city/town then the different groups in Chicago have to agree upon people to elect and make do with it. But why not divide Chicago into North and south? North/South/East/West? what about North Chicago? Should they divide if they discover the slightly less North Chicagans are different than the far north ones? At some point you’re going to have polities down to individual houses and apartments….so at some point between here and there what mechanism steps in and says “NO”.

    I mean the idea of democracy is you have an election and the guy or policy with the most votes wins. But that implies there will be a minority who voted the other way who don’t win. So if 30% of Chicago is against SSM and is in the north but 70% is for it and is all over the rest, then either all of Chicago must have SSM or you divide Chicago into North Chicago and Rest of Chicago. But then what about the minority in North Chicago who may support SSM? Do they divide again to return to the rest of Chicago?

    If you are hawking democracy, then by definition there has to be some ‘atomic political unit’ where you don’t keep dividing down. At that point if you loose the election you just have to live with it to the next election.

    Right now that unit is the state, which manages things by allocating power to local towns and cities via state Constitutions and legislatures. If Chicago wanted to divide, the state could say no to it (or yes)….or the state could even fuse Chicago with surrounding neighborhoods to expand the city. So ultimately it is the state level upon which you have to ‘bite the bullet’ of losing an election versus dividing yourself away from a lost election. But with your system there seems no obvious place to loose an election. Infinite division down to the house or even individual level seems to be the logic of where you’re going…which would classify your theory more as a species of confused anarchy it seems.

  37. Boonton,

    I’m going to bet it wasn’t but this indicates the problem with your idea. What should Chicago be? If the ‘atomic unit’ is the city/town then the different groups in Chicago have to agree upon people to elect and make do with it. But why not divide Chicago into North and south? North/South/East/West? what about North Chicago?

    My suggestion had been that the precinct in large cities be the unit. In cities like Chicago that’s pretty much how the ethnic neighborhoods divide.

    I’m missing the notion that your particular vote matters as one in 8-million vs one in, with electoral college, about 8-million. On the other hand a locale vote would be 1-10k and furthermore discussions and meetings likely to impact policy would be attended by 100s in a meaninful way.

    If you are hawking democracy, then by definition there has to be some ‘atomic political unit’ where you don’t keep dividing down

    Actually, if we’re willing to admit hypothetical/theoretical systems of possible government, with the computer age, direct democracy ala Athens is attainable.

    As far as trust, review Mr Schraub’s comments regarding why he doesn’t trust Public Liberty … a lot of it has to do with an elite not trusting the local common person and suggesting his wisdom is better than someone in a particular situation/locality. This is not unusual, you might also recall Darrel defending someone on the point that their opinion about when to have children was better than the person who might actually have children. When someone a thousand miles away thinks they know better, that’s elitism and the sort of non-trust, for example, led to the excesses of the regimes mentioned. The term “Soviet” translates as town-meeting. The USSR was supposed to be a union of independent town meetings … but the leaders didn’t trust the locals with decisions. Just like Washington (and Trenton or Springfield or you) don’t trust locals to make decisions on what they feels is important. That instinct in particular is/has killed our democratic traditions. What we are left with is just us going through the motions.

  38. My suggestion had been that the precinct in large cities be the unit. In cities like Chicago that’s pretty much how the ethnic neighborhoods divide.

    Why? When the precinct (whatever that happens to be) votes 70% for SSM what about the 30%? Why can’t they become a breakaway precinct? If they can’t then you admit democracy means sometimes having to live with losing the vote. But if that’s ok why can’t it be ok at the state level?

    On the other hand a locale vote would be 1-10k and furthermore discussions and meetings likely to impact policy would be attended by 100s in a meaninful way.

    Right now, though, such meetings are usually limited to a set of issues that have immediate local concern (zoning, school board, local traffic laws etc.). When those things are swamped by customized local rewriting of divorce laws and corporate merger law will such people have the time to give such ‘meaningful attention’ to these issues?

    Actually, if we’re willing to admit hypothetical/theoretical systems of possible government, with the computer age, direct democracy ala Athens is attainable.

    Not really, Athens was a political unit. If they voted against fighting the Persians, you lose if you were in favor of it. They didn’t split into East/West Athens and then split again until you got to political units where all elections carried 100% agreement.

    As far as trust, review Mr Schraub’s comments regarding why he doesn’t trust Public Liberty … a lot of it has to do with an elite not trusting the local common person and suggesting his wisdom is better than someone in a particular situation/locality.

    I’m sorry who elects the Governor in Mr. Schraub’s state? Does Mr. Schraub get 10,000 votes to cast because he’s ‘elite’? LAst I checked the ‘common person’ gets just as many votes in the present system as he would in your hypothetical system. The advantage is that the votes are more meaningful. If he votes for a change in divorce law, it carries throughout the state. Likewise, if he learns a lot about divorce law and advocates some reforms, he advocates once to the entire state. Under your system, such expertise would either have to be duplicated in every town or a person would have to devote a huge portion of his life explaining what he has discovered over and over again.

    The term “Soviet” translates as town-meeting. The USSR was supposed to be a union of independent town meetings … but the leaders didn’t trust the locals with decisions.

    Or a set of ‘town meetings’ is fine to settle some highly local issues but cannot be simply added together to make a functioning national gov’t just as you can’t ask every neighbor to chip in a bolt and get a working car out of that…even though you may end up with a pile of metal that has the same mass as a car.

    Your ‘thousand mile away problem’ applies to the towns themselves. Why would a town in Siberia pass its resolutions with an eye towards the good of the regions far to the east or west or south? Another way to look at it might be that the soviets let the whole country to go pot and concentrated instead on trying to get the best deal for their little town as they could….i.e. more potato rations than the town next door rather than asking if the entire agricultural industry was being destroyed and how to stop that.

  39. Boonton,

    Why? When the precinct (whatever that happens to be) votes 70% for SSM what about the 30%? Why can’t they become a breakaway precinct?

    My intention is not that everyone gets what they want and gets to write their own laws. The primary reason is to make democracy relevant by bringing it home, by making our influence more measurable and felt. A side effect is that more people can find a place to live in which the public ways and customs more closely matches what they desire.

    But if that’s ok why can’t it be ok at the state level?

    Because 8 million makes it too easy to be lost in a crowd.

    When those things are swamped by customized local rewriting of divorce laws and corporate merger law will such people have the time to give such ‘meaningful attention’ to these issues?

    What? So leave it to the professionals. That’s called dictatorship. “Don’t have enough time” is mostly a proxy for “That isn’t important to me”. And that is the crux of the problem, i.e, your arguing we should ignore the loss of our democratic influences because they aren’t important. Is that the premise we need to argue?

    Not really, Athens was a political unit.

    And the number of citizens was rougly the same as the precinct or town. Not a coincidence. Again, 100% agreement is not my criteria. High rates of participation and a sense that your vote/opinion is measured and has influence is.

    I’m sorry who elects the Governor in Mr. Schraub’s state?

    OK. The very question contains the answer. “Who is the what”? Governor. The governor, by your tacit admission, has more influence over the outcome of the state than a individual voter. In fact people in government have more influence. Mr Schraub just finished clerking for a high federal court jurist. By his position he has had more influence than just “his vote.” He gets more vote because he is a liberal elite lawyer moving in and into the circles of power.

    Under your system, such expertise would either have to be duplicated in every town or a person would have to devote a huge portion of his life explaining what he has discovered over and over again.

    This is called learning what it means to be part of democracay and participating in it. I’m not seeing how this is a bad thing, seeing as it’s exactly the outcome we’re looking for.

    Your ‘thousand mile away problem’ applies to the towns themselves.

    Uhm. No. It’s unclear on how settling abortion in a “Siberian” village needs an eye toward Moscow … or why an economist person such as yourself can’t see how many individuals looking for their own business profit can be more productive than a centralized commune run from a single committee.

  40. The governor, by your tacit admission, has more influence over the outcome of the state than a individual voter. In fact people in government have more influence. Mr Schraub just finished clerking for a high federal court jurist. By his position he has had more influence than just “his vote.” He gets more vote because he is a liberal elite lawyer moving in and into the circles of power.

    If he has so much influence, why does he waste such time with writing a blog for common people like you to read it? Why do you read it for that matter? He has influence because you give it to him (in your small way, of course). And part of the reason you give it to him is because part of you knows he deserves it. Not because he is some member of an elite class but because he has interesting things to say and you want to talk about them…even if it’s just to disagree with them…sometimes even people who are wrong are more interesting to listen to than those who are right.

    The rest of your post can be dismissed with one simple observation. The US was founded on a Democratic Republic. Democracy there is an adjective modifying a noun, not a noun in itself. Direct democracy was not seriously considered and was explicitly rejected. Advocate it if you wish, but don’t pretend you’re restoring anyone’s vision here.

    My intention is not that everyone gets what they want and gets to write their own laws. The primary reason is to make democracy relevant by bringing it home, by making our influence more measurable and felt. A side effect is that more people can find a place to live in which the public ways and customs more closely matches what they desire.

    And again this doesn’t answer the precint size question. If a precinct, why not sub-precincts? Wouldn’t that make people even more connected? Even more engaged? Make it even more ‘brought home’ to them?

    What? So leave it to the professionals. That’s called dictatorship.

    No it’s not.

    But back to my previous question. Consider your last statement:

    or why an economist person such as yourself can’t see how many individuals looking for their own business profit can be more productive than a centralized commune run from a single committee.

    Most of our transactions are with very large businesses with multi-state and multi-nation presences. Why is that? Consider fast food, there’s plenty of little one man shops. Why are most hamburgers sold by McDonalds and Burger King rather than ‘Joe’s Burger shack’?

    The answer is related to your question of why states rather than precincts? Things have pros and cons to them, and as you push further out along the scale usually what happens is pros start to shrink and cons start to expand. So a small one shop business has a pro in that it can really know the customers intimately. Why not make it even smaller? How about running the business outside the owners home? Outside his car? In his driveway? The added pro of even more connected to the customer shrinks. Cons grow. Likewise very big corporations fight the same battle. Bigger means more robust supply lines, more ability to conduct R&D, more flexibility to handle surprises etc. But pushing even bigger adds a little to those pros but cons like a complex organization, rent seekers among your workers, etc. expand. Outlets like McDonalds solve this problem by resorting to a Constitutional like scheme. Most stores are owned by individual franchisees, but corporate also owns a portion and contracts limit what the ‘local owners’ can do (for example, they can’t introduce their own menu items). When done correctly the organization maintains itself because it achieves a proper balance between the merits of large and small scale.

    Because 8 million makes it too easy to be lost in a crowd.

    But it’s easy to loose yourself in a crowd of 100 really diverse wacky people, but act wacky in a crowd of 5,000 straight laced highly uniformed people and you’ll stand out like a sore thumb. If your theory is correct you should be able to demonstrate that smaller states (both in terms of size and population) must have some advantage over larger states. I don’t think you can demonstrate this. Likewise I see you neglected my challenge to you to explain the failure of the US to become more fragmented in manners and folkways. Since the US has expanded greatly in terms of geography and population one would expect an explosion of diversity among ‘manners regimes’. Where are they?

  41. Boonton,

    why does he waste such time with writing a blog for common people like you to read it?

    Uhm, are influential people restricted from certain hobbies? I didn’t realize that.

    And again this doesn’t answer the precint size question.

    Because sub-precincts do not exist as political units today.

    Most of our transactions are with very large businesses with multi-state and multi-nation presences … When done correctly the organization maintains itself because it achieves a proper balance between the merits of large and small scale.

    And I’m unclear on how this impacts our discussion. My suggestion is to push to the local levels all decisions which can be made on the local level and that interactions or disputes between ever larger units be adjudicated by the larger unit, i.e., disputes between precincts or villages by the city or county, between counties by state and between states by the fed. Your franchise point is exactly the sort of freedom I’m proposing, i.e., letting the local person/unit power to make decision that matter to them. I’ve suggested that many of those decision which vex us at the federal and state levels could be pushed to local levels. I’ve given reasons why.

    Why not make it even smaller? How about running the business outside the owners home? Outside his car? In his driveway?

    You are the one pushing ever smaller. I’ve stopped at a size comparable to Athens, cause that has historical basis and we actually have political units of that size that do things now.

    If your theory is correct you should be able to demonstrate that smaller states (both in terms of size and population) must have some advantage over larger states.

    I’m unclear on why you think that it so. No state gives the authority I’ve suggested.

    Since the US has expanded greatly in terms of geography and population one would expect an explosion of diversity among ‘manners regimes’

    You made a loose analogy to manners, which then you suggest fails. That could be your analogy. Speaking of analogies and Constitutional law, I’d recommend to you the Jarolsav Pelikan book “Interpreting the Bible and the Constitution” as both are hermenuetically driven enterprises.

    The US was founded on a Democratic Republic. Democracy there is an adjective modifying a noun, not a noun in itself. Direct democracy was not seriously considered and was explicitly rejected

    So? I’m not advocating it either. What your proposing is that our increasing notion that government is “out there” and not something we can affect is no problem and in fact a good thing. I disagree. You think all government and state decision being made by professionals without our input is a good thing and not tyranny. Thanks for playing. Welcome the the new dystopia.

  42. It occurs to me that there’s another problem with your suggestion. You seem to presume that people do not place much importance on considering some questions settled in a Democracy.

    Consider slaverly. A lot of people tried to head off the Civil War by suggesting a live and let live approach. Let slave states be slave, free states be free and new states decide for themselves (or admit new states on a one for one basis to keep the balance of power even and just to make sure have Congress impose rules on itself to keep slavery off the table). This, of course, failed.

    On the other hand there are some issues that do seem to work better this way. consider whether or not gambling is legal. Utah’s Mormonism doesn’t seem to be a problem when it comes to letting Nevada have Las Vegas. Yet it does seem internally the state itself wants to consider issues settled. For example, Nevada seems to have settled on gambling in some areas but not others. No doubt there are some anti-gambling advocates who live in Nevada but the state as a whole appears to have settled.

    Other issues will forever ‘churn’. Consider zoning laws, the school calendar and other like issues. No two towns are ever inagreement on this and they are always tweaking.

    I think you will find some issues people are comfortable with nation wide consensus, others state wide and others locality. With SSM, for example, both sides exhibited a desire for a nation or at least state wide solution. Not simply letting each locality do its thing leaving the nation a never stable patchwork of marriage regimes flicking different colors like a choatic christmas tree. In fact, the pro and anti-SSM groups almost all agreed that the solution should be on a wider level than just the town.

    How do you account for the fact that some issues people want to have decided on a large scale rather than a small one?

  43. Boonton,

    I think you will find some issues people are comfortable with nation wide consensus, others state wide and others locality. With SSM, for example, both sides exhibited a desire for a nation or at least state wide solution. Not simply letting each locality do its thing leaving the nation a never stable patchwork of marriage regimes flicking different colors like a choatic christmas tree. In fact, the pro and anti-SSM groups almost all agreed that the solution should be on a wider level than just the town.

    This is an unsupported assertion. Why do you feel that option is even discussed or on the table. We are happy with school starts and zoning being a flickering chaos. I see no evidence that anyone is discussing and subsequently rejecting the notion that marriage might also be treated similarly.

    Slavery violates the “open jail door” requirement. Monastic life is probably more strict than slavery ever was, excepting the one point that is that the monk can leave and the slave could not.

  44. Boonton,

    How do you account for the fact that some issues people want to have decided on a large scale rather than a small one?

    I would suggest in a multicultural republic that they be encouraged to use persuasion rather than force, which they are now using.

  45. For SSM, both sides supported positions that would either work at the entire state or entire national level (although the bias was towards the national level, anti-SSM advocates pushed laws and amendments that would prohibit pro-SSM states from having SSM, SSM advocates pushed readings of Equal Protection that would make it difficult for the Fed. gov’t not to recognize SSM and make it difficult for states not to have it). A minority of libertarians proposed a ‘privatized marriage’ solution but interestingly that involved not local gov’t but removing gov’t entirely making marriage a set of private contracts between individuals. The fact that the option of a town by town marriage system wasn’t even discussed is, in fact, excellent evidence that most people have no interest in such a creature.

    Another area that you can consider might be legalizing pot. Many towns/states are in a semi-revolt against Federal pot laws but even there ‘movement’ seems to be to relax laws against pot on a state or nationwide basis. I don’t think there’s any objectin to towns having laws on the matter the way they have laws on local bars, but the decision seems to be in contention for settling on a national or semi-national scale.

    I would suggest in a multicultural republic that they be encouraged to use persuasion rather than force, which they are now using.

    Show me a single instance of force being used with, say, SSM?

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>