When Can You, and When Can't You?

I've been watching the tv this morning while cleaning the house before getting out of town, and there was Judge Posner on the tv, saying that he thinks the NSA domestic spying was legal. This raises the same question as his op-ed in the Post, which is, when can a judge give an opinion as to a question not before him . . . and when can't he? (Excuse the gendered language.)

I mean, next month we'll hear Judge Alito, Posner's peer, for now, answer again and again that he cannot answer questions about the legality of the NSA domestic spying because he needs to be impartial when the case comes before him, if it ever were to do so. But there's Posner, chatty cathy-ing his way across the news media. I guess Posner is just trying to ensure that he'll have to recuse himself, if and when?

Btw, one reason judges and judicial nominees shouldn't answer hypotheticals is that hypotheticals often lack key facts, and one doesn't want to lock oneself in before one knows all the facts. (This is probably not relevant when asked your opinion on the constitutional bona fides of Roe.) I think that Posner has committed himself to a position in this case too early. There's more news every day. How can he be so confident that he's right, that nothing that was done in this case was illegal/unconstitutional, when he doesn't know what was done . . . ?

Miami Vice

So . . . before King Kong, they showed the trailer for the Miami Vice movie, which looks, well, . . . I hate to say this . . . but, well . . . it's true, that it looks . . . cool. I just hope that the pastel t-shirt under a blazer look doesn't come back.

Btw, it's Jamie Foxx as Tubbs and Colin Farrell as Crocket. My vote was for Edward James Olmos for the lieutenant, but they went with some other guy.

Link.

Maybe He Can Get an Endowed Chair at AEI

Apparently, "Landslide" Ahmed Chalabi's Iraqi National Congress scored a whopping .36% in the recent Iraqi election. Now he's claiming that the election was fraudulent. This may put some readers of this blog in a quandary. I mean, some of you almost certainly believe that there was widespread fraud in the Dec. 15 election. But now Chalabi is saying that there was widespread fraud in the Dec. 15 election. And Chalabi, like the proverbial Cretan, is a liar. So if he says that the election suffered from widespread corruption/fraud . . . then the election was on the up-and-up?

I have to end this post before my head explodes.

This Is Probably Good News

There's a post over at the world's most powerful blog that suggests that Judge Alito shares Justice Scalia's views on presidential power. But this is, er, good news for civil libertarians, I think.

I know that many, many liberals hate Justice Scalia. And, from their perspective, he is wrong on a number of issues. But don't hate the playa, hate the game. Here, it should be noted that Justice Scalia took the most civil libertarian position in Hamdi v. Rumsfeld, along with Justice Stevens, essentially saying that under the Constitution there is no "indefinite detention of U.S. citizens" option. And, well, I think that the good justice is right on this. If Judge Alito agrees, then that's a good thing.

Btw, kos is talking about Morrison v. Olson, in which Justice Scalia was the lone dissenter; he would have held that the independent counsel law was an unconstitutional usurpation of the president's executive power. For myself, I think that the Ken Starr Lewinsky witchhunt proves Scalia correct, in an institutional sense, at least. Formalism is not always a bad thing, people. And Justice Scalia may yet have a part to play in this story.

Perhaps Justice Alito, too.

Emery's First Law of Film Editing

I know that I need to write a post on King Kong, which is excellent, btw. I mean, it's an excellent entertainment, with the best CGI special effects ever. There are shots in this movie that are simply believable. I mean that. Skull Island looks real. It's all on a hard drive somewhere, but it looks like a real place. But the problem here is that this movie is about . . . a giant ape. Even if he's a giant ape who loves Naomi Watts, etc., he's a giant ape. So it's entertaining, but not very deep.

But that's not what I'm posting on. I'm posting on Emery's First Law of Film Editing. That law is: Never place your protagonist(s) in more CGI-generated jeopardy than necessary.

Violation no. 1: Star Wars Episode III: Revenge of the Sith, the opening scene. Do Anakin Skywalker and Obi-Wan Kenobi have to battle hundreds of battle droids? Why so many?

Violation no. 2: King Kong, the scene where the rescue team falls into the muddy bog filled with giant, killer crickets, the worms with teeth, spiders, scorpions, and on and on. Any one of these creatures would have been enough. I know that you can create endless swarms of creatures--or battle droids--with CGI, but . . . why? It certainly doesn't serve the ends of the story.

What Kind of Loser . . .

writes a Wikipedia post like this? If you're ever really, really bored, and have Internet access, go to Wikipedia and hit the "Random Entry" tab over and over again. You won't believe the crap that's in there.

Anybody out there ever written a Wikipedia entry? Edited one?

Hey, wait. That sounds like a fun project for the New Year. Here's my proposal: CWRU alums, we write a Wikipedia entry on the beloved-by-all Jonathan L. Entin. Vandy alums, I say we write a Wikipedia entry on . . . the always quirky George J. Graham, Jr. This would be a top secret project. If you aren't a member of either of those groups, propose a name, or an entry, that everyone can work on. Like the man said, a group project.

Btw, if you can come up with a better Wikipedia article group project, we're all ears. And I don't mean that these articles should be written in anything but a serious vein. Just to be clear.

How Much of the Iceberg Can We See at This Point?

I've read quite a bit about the domestic spying scandal, including in the comments on thsi blog, but I wonder, how much of the story do we know, at this point? It seems to me that we don't know very much. Why is that important?

Because isn't the pattern that these stories always get worse, the more we know? Practices that might be defensible, in certain circumstances, become completely indefensible when we know just how widespread those practices were. Or when we know just how those powers, perhaps defensible in principle, were used on a day-to-day basis?

Empirical Evidence for the Phantom Menace?

Judge Posner in the Post today:

We must do better. The terrorist menace, far from receding, grows every day. This is not only because al Qaeda likes to space its attacks, often by many years, but also because weapons of mass destruction are becoming ever more accessible to terrorist groups and individuals.

My first, minor point is that if it is true that "[t[he terrorist menace . . . grows every day," then the War on Terror has been the worst-fought conflict in the history of superpowers. If the war started on September 11, 2001, then we are four years in and, according to the good judge, we are not just losing, but getting farther behind every single day. I mean, I've heard a lot of talk about defeatism lately, but doesn't this take the cake?

But my second, more important point, is that there's simply no empirical evidence for this claim, at least not that ordinary mortals (and Article III judges) have access to. "The terrorist menace . . . grows every day." Every day? It never goes down, like when we capture an al Qaida number three? Or find a laptop with information?

Even worse, what is the terrorist menace? Is this the risk of an attack, in terms of a probability? If so, then how does one estimate that probability?

Is it true that "weapons of mass destruction are becoming ever more accessible to terrorist groups"? If so, then the president and his people must be doing an awful job, in the judge's opinion.

Link.

The problem is that language like this is the enemy of rational thought. On September 11, 2001, the United States was attacked by a distinct group of people, al Qaida. That group has a leadership structure, rank-and-file personnel, recruitment processes, and finances, just like any other group. It can be attacked at any of those points in its structures, and we have attacked it. Repeatedly.

But if we think that September 11 demonstrated the terrorist menace, some kind of ill-defined threat that is everywhere, all the time, and always growing, growing, and spreading, infiltrating . . . then we can't fight that kind of Phantom Menace, let alone hope to prevail against it.

King Kong Tonight

So we're going to see the new Kong movie at the Uptown tonight after work, so don't expect a post after work. But expect the breathless film review of Kong tomorrow. The best movie of all time! Not likely. The best movie of all time doesn't have a giant gorilla in it. Few people know this, but that's actually one of the criteria.

Not Outrage But At Least in the Right Direction

George F. Will in today's Post:

Particularly in time of war or the threat of it, government needs concentrated decisiveness -- a capacity for swift and nimble action that legislatures normally cannot manage. But the inescapable corollary of this need is the danger of arbitrary power.

Modern American conservatism grew in reaction against the New Deal's creation of the regulatory state, and the enlargement of the executive branch power that such a state entails. The intellectual vigor of conservatism was quickened by reaction against the Great Society and the aggrandizement of the modern presidency by Lyndon Johnson, whose aspiration was to complete the project begun by Franklin Roosevelt.

Because of what Alexander Hamilton praised as "energy in the executive," which often drives the growth of government, for years many conservatives were advocates of congressional supremacy. There were, they said, reasons why the Founders, having waged a revolutionary war against overbearing executive power, gave the legislative branch pride of place in Article I of the Constitution.

One reason was that Congress's cumbersomeness, which is a function of its fractiousness, is a virtue because it makes the government slow and difficult to move. But conservatives' wholesome wariness of presidential power has been a casualty of conservative presidents winning seven of the past 10 elections.

On the assumption that Congress or a court would have been cooperative in September 2001, and that the cooperation could have kept necessary actions clearly lawful without conferring any benefit on the nation's enemies, the president's decision to authorize the NSA's surveillance without the complicity of a court or Congress was a mistake. Perhaps one caused by this administration's almost metabolic urge to keep Congress unnecessarily distant and hence disgruntled.

Charles de Gaulle, a profound conservative, said of another such, Otto von Bismarck -- de Gaulle was thinking of Bismarck not pressing his advantage in 1870 in the Franco-Prussian War -- that genius sometimes consists of knowing when to stop. In peace and in war, but especially in the latter, presidents have pressed their institutional advantages to expand their powers to act without Congress. This president might look for occasions to stop pressing.

I'm interested that, despite the wind-up, Will concludes wimpily that "the president's decision to authorize the NSA's surveillance without the complicity of a court or Congress was a mistake." OK, but was the "mistake" not seeking "the complicity" of a co-equal branch, or the exercise of arbitrary power? And is that just a "mistake"?

Outrage Deficit

In an earlier post, I commented that the NSA domestic spying scandal should trigger conservative outrage. Check out this grudging assessment of the NSA domestic spying scandal. No outrage there. None. Nada.

Update: The opposite of outrage is . . . avid support for lawlessness. Note that Kristol and co-author start with one of those fear-mongering hypotheticals that have become so popular. "Imagine the president knew something really bad was going to happen . . . ." I actually heard Tony Blankley misquote the Hand formula last night to suggest that, were the risk great enough, and the projected harm great enough, then . . . the president would have completely unlimited powers, for all practical effects.

Maria or the Baroness?

So this weekend we watched The Sound of Music. I won't offer a full review, because what would be the point? It's one of the best movies of all time. (Number 55 on the AFI list.) And all of you have seen it, probably a dozen times.

But watching it for the tenth time or so, it finally struck me: If I were Captain von Trapp, I think that I would have stayed with the Baroness. I mean, Maria has the pure, virginal thing going, and she's good with the kids, and she can sing. Oh, man, can she sing. But what do the Captain and Maria really have in common? For one thing, she's much younger than he is, which may be a plus in some men's minds. But she's from a different social class, she doesn't seem very sophisticated or even educated. When the first flush of romance is over, what will they talk about? The kids? No! Stop! Think about it. The Captain is an aristocrat, for pete's sake. And so's the Baroness. Plus, the Baroness is more elegant, more refined. And smart.

Now, once they flee the country, all of this may be a moot point. But in terms of a Mary Ann versus Ginger debate, I think that there's a real case to be made here for the Baroness.

Missing Word?

If you watch/read media coverage of the Oval Office address last night, you'll hear/read that the Bush administration is somehow admitting mistakes in the conduct of the war. (For example, Kelly O'Donnell on NBC, "candid assessment of mistakes," just now.)

But if you search the text, you won't find the word "mistake." Not even a Reaganesque "Mistakes were made," in the passive voice.

This is about as close as he got:

In all three aspects of our strategy -- security, democracy, and reconstruction -- we have learned from our experiences, and fixed what has not worked. We will continue to listen to honest criticism, and make every change that will help us complete the mission. Yet there is a difference between honest critics who recognize what is wrong, and defeatists who refuse to see that anything is right.

"Experiences." Right. Same thing as mistakes, really.

Product Tie-Ins

Anyone else out there vaguely bothered about how media mega-conglomerates shamelessly advertise their own products, on different stations or even in different media, as "news"? I mean, how much coverage of King Kong, a Universal picture, get on the Today show, which is on NBC, which is owned by NBC-Universal? How hard is CNN pushing Time's "Person of the Year," when they are both owned by the same company? And I haven't checked, but seeing how much coverage Howard Stern's move to Sirius radio has received on NBC and its cable stations, it's my belief that Sirius must be owned by NBC-Universal.

Anybody?

News of the Day: Death of Outrage?

So, Pres. Bush secretly ordered the NSA to eavesdrop on U.S. citizens, within the United States. Now, the story coming out of the administration is that these were people with ties to terrorists, but . . . the gang that can't shoot straight has based its actions on bad intelligence before. And keep in mind that a number of the administration's terrorism prosecutions have failed to secure convictions. So when they say, "ties to terrorists," I think one should discount that.

President Bush said yesterday that he secretly ordered the National Security Agency to eavesdrop on Americans with suspected ties to terrorists because it was "critical to saving American lives" and "consistent with U.S. law and the Constitution."

Link.

We've heard this a thousand times. "What we're doing is consistent with the law." But apparently, the administration thinks that anything it does is legal. So, well, that's not much of a check on executive power.

Bush's constitutional argument, in the eyes of some legal scholars and previous White House advisers, relies on extraordinary claims of presidential war-making power. Bush said yesterday that the lawfulness of his directives was affirmed by the attorney general and White House counsel, a list that omitted the legislative and judicial branches of government. On occasion the Bush administration has explicitly rejected the authority of courts and Congress to impose boundaries on the power of the commander in chief, describing the president's war-making powers in legal briefs as "plenary" -- a term defined as "full," "complete," and "absolute."

Link.

This story should trigger widespread outrage. But it's time for one (mostly) silent group to step up. Conservatives. If conservatives can't find any outrage in themseles over this story, then the movement is really dead. If conservatives circle the wagons and defend an unlimited assertion of executive power . . . are they really "conservative" any more?

Not This Day in History: September 17, 1986

The Democratic Policy Committee vote book summarizes debate on the nomination of Antonin Scalia to the Supreme Court in this way (in part): While some disagreed with his positions on some issues, especially women's rights, they found him intellectually flexible, and his judicial philosophy to be within the legitimate parameter of debate. Interesting. I mean, his positions are certainly within the legitimate parameters of debate today, but I think we're taking something away from the good Justice if we don't give him credit for moving those, er, parameters.

Also interesting is the fact that the Senate, on the date in question, held a cloture vote on the nomination of Justice Rehnquist to be Chief Justice. But wait, why would a cloture vote be needed?

He Is Tenacious

In comments, TMcD argues against my last post. (Btw, I meant no offense to Oakland. I'm not sure about this, but my guess is that when Stein said that quote, there probably wasn't much there. Certainly nothing like the Oaktown that's there now, that TMcD and I have both been to. I mean, she must have been there in, what, the 1920s? But that's really beside the point.)

Here's one paragraph that I want to respond to:

Ok, so you want to hinge your theory of identity on "continuity of consciousness," eh? So how do you deal with amnesiacs? Are they two completely different people, one before and one after losing their memory? If they lose memory repeatedly, are they born anew each time? What about "Memento" men, who have fragmented memories? Yours doesn't seem like a very good answer, Mr. Materialist Science, if there is continuity of physical body. It would seem to push you into an idealist position that assigns mental events a reality independent of the physical.

But what I said was simply that if there were a physically identical-to-me person in a zillion years, that person wouldn't be me, because he wouldn't have continuity of consciousness with me. Or, to use the snobby Stein quote, one more time, there's no me there.

I think that we have to be careful what theory of personhood we are discussing. For example. A corporation is a person for legal purposes, a person which (I refuse to use "who") cannot die a natural death. But it can do almost everything else a person can do, from a legal point of view. It has continuity of existence separate from the identity of the persons composing it. So there's a theory of legal personhood that is quite different from personal identity. (A corporation may suffer from a loss of "institutional memory," but those memories are not essential for artificial persons. And yes, I know that's a metaphor, although an exceedingly useful one.) If, for example, I were to have some kind of accident and lose all memories of my past life, then that radical break would make me a different person, from one perspective, than I am right now. I would still be the same person, from a legal point of view. I would still own the same property and even have the same degrees, even if I couldn't remember any of the stuff I used to know (that's curious).

To take a rather radical direction here, let's say there's a death-row prisoner who develops a brain fever which completely erases his personality and memories. He no longer remembers his homicidal past. But he's still on death row, because the judgment and conviction pertain to legal personhood, not . . . identity. (A less extreme version of this, of course, is the case of the redeemed death row inmate.)

So, I think that amnesiacs can become different people, if they have long-term effects. Not from a legal point-of-view, but from the perspective of personal identity. If there really are "Memento" or "Blank Slate" persons, who wake up every morning with no memory of who they are, I would say that such people really have no personal identity. The first question such people would ask, of course, is "Who am I?"

That is not an idealist perspective. I'm assuming that continuity of consciousness has a physical/material cause. The best evidence for that is that amnesia, etc. are often the result of traumatic injuries to the brain. So my best guess, as a non-cognitive scientist, is that my personal identity is based in my brain's wiring. If my brain's wiring were to be substantially re-wired, then I might become a completely different person. But then my identity would be nowhere. It would have ceased to exist. (No leaping to another body, unfortunately.)

Btw, my sense is that transporter technology is impossible. But if it did work, the reason it would would be because the device perfectly re-constitutes my physical body, including my brain, in a different location. Preposterous, but that's how it would have to work.

To take another example, which TMcD doesn't raise. Sometimes on television a character will manage to put "his consciousness" into a computer (I'm not sure I've ever seen a female character do this, although that evil scientist once stole Kirk's body on the original Trek). Even if it were possible to write a complex program that would "think" exactly like me, I don't see how one ensures the continuity of consciousness across the flesh-machine barrier.

Anyway, this is rambling. I did want to defend myself against the charge that my position is derived from a sense of superiority to those who believe in an afterlife. I think that I've said, below, that I'm as bothered by the thought of dying as the average person, maybe even more because I don't imagine singing the praises of God forever in the chorus of angels, or however else one wants to imagine the afterlife. I mean, I do think that belief in the afterlife is a wrong belief, and there is something like what TMcD addresses in thinking that most people you interact with, on a regular basis, hold wrong beliefs that are central to their identities. But I tend to be tolerant of differences of opinion of these questions, and I don't hold it against people if they hold what I perceive to be wrong beliefs. I mean, how could I? I'd have a rather low opinion of almost everyone, if that were the case.

Oakland, Death and Everything In-Between

Was it Gerrude Stein who commented about Oakland that "there's no there there"?

That's my reaction to TMcD's comment below. TMcD says that: "You're essentially hiding behind scientific method to avoid addressing uncomfortable questions. " But I'm not. I concede that death, especially the death of a loved one or one's self, is an "uncomfortable" issue. But what's the question? There's life, and then there's death. I don't think that science is the problem here (singulrities), because an individual death is a single data point, but death is a regular occurrence in this world. The problem is that there's just not much to say about death. It's the end of life. Sure, at that point we only have metaphors. But that doesn't mean that there's some deeper reality that the metaphors obscure. I offered the light switch metaphor as a way of "conceptualizing" death. That's all.

The eternal return thing is just strange. Clearly, the repetition of my consciousness is an impossibility, because if it happened again, it wouldn't be mine. Part of individual identity is the continuity of existence. I am me because I was me yesterday, and the day before, and back in 1985, and back in first grade, in 1975, and so on. If there was some physically identical-to-me person in three trillion years, that would be a physically identical-to-me person, not me. The same thing with the continuity of consciousness theory. If my consciousness is the consequence of my brain's wiring, then when that wiring finally shorts out, my consciousness can't just leap to another brain . . . it will be kaput. Neither of these theories is consistent with scientific principles. My view is. There's no evidence for recurrence or leaping consciousness. Maybe the choice of the rules of evidence has to be meta- or non-scientific. But if that's unavoidable, then so be it.

There is much that is unknowable. That is true. But let's not fill in the gaps of the unknowable with myth, fable, and conjecture.

Clarifying "the Rules"

There has been some mention of this in the comments, so I should clarify "the rules." There are no rules for commenting to posts on this blog, except the rule that should govern any (small-scale and collegial) cooperative endeavor: Always Behave Such That Your Actions Do Not Trigger the Need for Formal Rules.

All of you know me (maybe not the tarn? who is that?) and know that I am a pretty informal guy, at least when it comes to rules.

Feel free to ask questions of one another. But civilly.

Btw, TMcD should start his own blog. Don't you think?

More Thoughts Flood into the Breach

Sam weighs in on the death question.

And he accuses me of cheating:

However, I think Emery is cheating here. He dismisses the work done by 'cognize' and 'experience' so that he can then go on to 'conceptualize' death by offering us this very nice metaphor. But conceptualizing death is not cognizing its experience. The work cognize is doing is to make the link to epistemology. This means we're not just saying what death is like (as Emery's quote does), but saying something about knowing death.

I'm not sure, again, what work a lot of these terms are doing. For example, what does it mean to "know[ ] death"? The phrase seems to import all kinds of meaning into the term death, when death has a rather simple meaning: it means that one is no longer alive. One cannot know anything once one is dead because . . . well, that sentence is complete without the "because." The premise of the (unstated) question seems to be that there is something knowable about death, epistemologically. I offer up, from a scientific point of view, what is knowable, i.e., the absence of life. Science does not speak in personal terms--from the scientific point of view, whose death this is, that we are speaking of, is irrelevant. I can speak as to what it will mean when I am dead. But I won't know anything then because . . . I'll be dead. What else is there to know?

The premise seems to be, yet again, that we as human beings (or Beings, or Being) have some special relationship to the Cosmos that, somehow, grounds our experiences and, again, somehow, validates our anxieties. To believe that, it seems to me, you need to have an explanation for that special relationship. If you reject supernatural beings (or a supernatural Being) with a particular interest in the doings of human beings, then it seems to me you're stuck with consciousness. But if you think that concisousness is better explained physically, then you are, again, making quite a leap going from the natural, material world to the supernatural, metaphysical plane.

I don't think that this is cheating. I start from, and work with, materialistic, naturalistic, and scientific premises. I reject any approach that posits a special relationship b/w human consciousness and Reality, the Universe, and whatever else you want to put in that position. I am up-front about these things. At the same time, I know that peope find the prospect of dying unpleasant. So do I. trust me. But that doesn't mean that there's some special, hidden meaning in the things that we find unpleasant. Those things simply thwart human desires.

I may be missing something. But I need to know, in rather concrete terms, what that is. I understand the appeal of mystification, of enveloping unpleasant (or unseemly) aspects of human existence in a shroud of mystery . . . but it seems to me that one must fight the urge to fudge these things. I also understand the urge to move the discussion up a level of abstraction, to go from anxieties about death to positing a cause for those anxieties, or a deeper meaning, that grounds or validates those anxieties. But again, it seems to me that if we're always honest about what we're doing, honest with ourselves, we can tell when we start telling tales to comfort children.

And I'm as much a child as anyone else, when it comes to this subject.

Impossible or Just Unpleasant?

In comments, TMcD suggests that "the impossibility of cognizing the experience of death rationally" makes "the religious imagination a human necessity." But is it true that it's impossible to cognize (not sure what work "cogniz[e]" is doing) the experience of (again, not sure what work "experience of" is doing here) death rationally? Or is it just the case that the thought of our personal extinction is, well, unpleasant? It seems to me that it's easy to conceptualize death. Go to the wall and flick the light switch. One second the light is on, the next, it's off. The off position is death.

Btw, there's an article in The Atlantic this month offering a cognitive science explanation of "the religious imagination." Now, generally, I'm hostile to cognitie science explanations of complex/symbolic behavior, because such studies usually focus on the locus of brain activity rather than any explanation for the content/meaning of that behavior. (Or, in other words, we cannot bridge "the structure of the brain to contents of the mind" gap. Not yet.) But maybe human beings are just hard-wired to not believe in our own mortality.

But even if that's in our wiring, that doesn't mean that we are immortal. I think that that needs emphasis.

Evidence That the Blogger Is Not in His Right Mind

Link.

Activity over at Wilson's Place

I haven't seen the Spiderman movies, but I think Wilson is right about this. If he's talking about Topher Grace, that is.

When are my other friends-readers going to start their own blogs? Some of you, I'm going to start charging you rent for the comments.

Once More into the Breach

When last we discussed religion, here, Sam was suggesting that Robb and I were using religion in different ways. I think that that's basically true: Robb is focusing on "religion" in the contemporary culture wars, and I am interested in religion as a set of beliefs that "the religious" share and that the "irreligious," or whatever better term you want to use, do not.

I find that, as an outsider, so to speak, I find religion in this second sense much more interesting than many who would be counted among the religious. I guess that I find the subject more interesting because I don't have a dog in the fight, in the sense that I don't care whether a particular sect believes in Original Sin, Jesus' Status (Prophet, Son of God), the Immaculate Conception, the Virgin Birth, the Resurrection, the Trinity, infant baptism, the priesthood, etc. What I find interesting is how the beliefs of various sects fit together. In a sense, if you're interested in belief systems (for lack of a better term), then religion is a great place to mine your ore.

That's one reason why I find Mormonism so-o-o-o fascinating. Of course it's a sham, but I think that about religions in general. What's interesting is what a brilliant sham it is. Really, Mormonism is a work of genius. It's perhaps the greatest American masterpiece in any medium.

So I am less worried than Robb about religion's place in the political debates of our time. Because the integrity of religion doesn't really motivate me. I think that it should motivate religious people, but if it doesn't . . . that's their business.

Btw, Sam and Rebecca's blog is a great read. They're such an interesting, smart, brilliant couple, one wishes that one could have them over for dinner. But then again, they live in Wales . . . . And Rebecca is right. Good and negative energy, that comes back to you. Now, is that a religious belief? Am I going New Age on y'all?

Five Years Ago

Today is the fifth anniversary of Bush v. Gore. So take a minute to reflect on the amazing popularity, among Republicans, of V.P. nominee Joseph Loserman, er, Lieberman. Five years is an eternity in politics. I mean, five years ago my Republican friends were against nation-building. Now they have no problems with writing blank checks for nation-building. Five years ago, Bush was going to restore honor and integrity to the Oval Office. Five years is . . . more than an eternity in politics, if that's possible.

Is It Just Me?

Does anyone else find an unmoving escalator strangely disconcerting? I don't mean to say that it makes me dizzy. Not quite. But the first couple of steps always feel a bit wobbly. But only walking down, not up.

Note: This is just unmoving escalators. I have no problem navigating a moving escalator. In either direction.

But if you ride Metro, you have to walk up and down broken escalators, from time to time.

Freedom on the March

President's State of the Union address, January 25, 1988:

So, too, in Afghanistan, the freedom fighters are the key to peace. We support the Mujahadeen. There can be no settlement unless all Soviet troops are removed and the Afghan people are allowed genuine self-determination. I have made my views on this matter known to Mr. Gorbachev. But not just in Nicaragua or Afghanistan. Yes, everywhere we see a swelling freedom tide across the world--freedom fighters rising up in Cambodia and Angola, fighting and dying for the same democratic liberties we hold sacred. Their cause is our cause. Freedom.

Senate Roll call vote, September 11, 1990:

Heinz et al. modified amendment which expresses the sense of the Senate that in the event of hostilities between the U.S. and Iraq, it shall be U.S. policy to pursue Saddam Hussein, Iraqi leaders, and others as may be determined responsible in order to bring them to justice as war criminals, and to seek their prosecution and punishment under the auspices of an international tribunal with relevant jurisdiction.

The vote was 97 yeas to two nays (Wilson of California not voting). The two nays were Bingaman (New Mexico) and Kerrey (Nebraska), both Democrats.

Still waiting on that tide of freedom in Afghanistan, still waiting on that international tribunal in Iraq. But I think we can say that we no longer support the Mujahadeen?

Open Email to Peter Jackson

Dear Sir,

As a fan of your movies, I am looking forward to seeing King Kong next week. But what is next? You've already tackled The Lord of the Rings. I have a suggestion. Why not (re)make a 1950's style biblical epic, like The Ten Commandments? Why not remake The Ten Commandments itself?

The special effects potential of the pyramids, the plagues, the burning bush, the parting of the Red Sea . . . oh, man, there's so much potential there.

Just an idea. Btw, congrats on losing all the weight.

A Fan

The Politicization of Religion

TMcD continues, in comments, to argue that religion is inherently political in the United States today. But reading his latest comment (which demonstrates a little less comity than one might hope for), I was wondering, hasn't religion almost always had political content in the United States?

Historical examples:
*The black and white churches in the Civil Rights era.
*Anti-Catholic bias, and general nativism, on the part of the nineteenth- (and early twentieth-) Republicans.
*The role of Christianity in the abolitionist (and pro-slavery) movements.
*The divide in colonial times between Anglicans (i.e., Church of England) and other sects.
*Going back further, the origins of much of our contemporary political ideas can be traced back to the English civil war, which had largely religious causes.

Indeed, one could argue that the same cleavages run through many of these conflicts. Kevin Phillips's The Cousins' War makes this case pretty well.

So, my question is, How different are things today? I'm skeptical that the current situation is different from Father Coughlin, for example. It seems that every thirty years or so, we have the same conflicts but imagine that these new conflicts are really new. Completely different from the conflicts of the past. (Just like each generation imagines that it invented sex. Except for those poor souls raised during the Reagan years. "Just say no.") But the Preacher saith, There is nothing new under the sun.

But, this is new: Sam chimes in. Although his last paragraph may set off a second comments war.

Judge Boggs Strikes Again

If you read Judge Boggs's concurrence in this case, you'll see an interesting paragraph (last page) on probable cause:

Finally, a word on “probable cause.” While courts have resisted mightily putting a number
on probable cause, see Maryland v. Pringle, 540 U.S. 366, 371 (2003), at bottom a review of cases
indicates that there must be some, albeit inchoate, feeling as to what kind of probability constitutes
probable cause. My reading is that it does not require a belief that there is more than a 50%
probability of evidence being found in a particular location. See, e.g., United States v. Gourde, 382
F.3d 1003, 1015 (9th Cir. 2004) (Gould, J., concurring) (collecting cases). If that were the case, one
could never get a search warrant to search all three cars of a person for whom there was
overwhelming evidence of general drug dealing, and specific evidence of a drug transaction the
proceeds of which were now certainly in one of three cars in his garage, and certainly not in any of
the others. However, to be more than a hunch or a supposition, in my own mind, requires a
legitimate belief that there is more than a 5 or 10 percent chance that a crime is being committed or
that evidence is in a particular location. Using this standard, my judgment would be that there was
probable cause to believe that criminal activity was afoot in the house, based on the information on
which the officers could reasonably rely that there was not a legitimate reason for activity in the
house.

The Good Judge is correct on the law here, but his suggestion that probable cause is as low as a .05 or .10 probability strikes me as troubling. Any thoughts?

Btw, this post makes some good points on the question. Consider the relationship b/w probable cause and reasonable suspicion, for example. If a police officer needs a lower level of suspicion to make a Terry stop, based on "reasonable suspicion," pointing to articulable facts, etc., what is the probability, under Judge Boggs's ".05 = probable cause" rule? Is reasonable suspicion .01? .001? It seems to me that this probability is way too low.

Pringle suggests that .33 is sufficiently probable for probable cause (1 out of 3). I would go as low as .25, maybe .20 on some fact patterns. But .10 . . . no.

And while you're over at Concurring Opinions, you can read this post on the topless photos of Jennifer Aniston. I would just add, on that point, that Ms. Aniston appears topless on the current issue of GQ (and inside, too), although the naughtiest bits are never shown. So I guess the naughtiest bits are visible in the other photos.

The Comments Wars Continue

Curat Lex and TenaciousMcD carry on their savage attacks on one another in the comments. A third-party has asked me, via email, whether I am really "too busy" to post or whether I'm just trying to stay out of the War. Really, I have been busy, but I would like to stay out of the middle of the War.

The thing that confuses me is that CL and TMcD probably agree on a lot more than they know, since I know both of them and I know that they have never met one another. TMcD is a partisan Democrat, more so than a die-hard liberal, which he is decidedly not. CL is neither a Democrat nor a Republican--I believe he identifies as an Independent (?). They like the same kind of music. But they clearly dislike one another's Internet alter egos.

I'm all for a robust give-and-take, but I hope that people can hold off ad hominem attacks and attempting to score points based on trivia in others' comments. Over at the Volokh Conspircay, the rule is that commenters are supposed to comment on the post and not on other comments. Now, if you know me, you know I'm not crazy about rules, but that's a pretty good rule, at least most of the time. And I should add that I can police comments, if it comes to that. By the Power of Blogger.

Btw, I was actually interested in the minimal contents of the American religious creed. I disagree with TMcD that one of the two elements is GOP identification. Now, it certainly seems to me that there are GOP operatives who would like to corner the political market on the religious, but I don't think that the observant are all on one side of the partisan divide.

I think the list contains some set of the following, with the possibility of inclusion among the "religious" based on holding certain subsets of these beliefs:
* Belief in a Deity who (?) takes an active interest in human actions (as opposed to a purely explanatory Prime Mover)
* Belief in a particular account of divine revelation (Moses, Moses + Jesus, Moses + Jesus + Mohammed, Moses + Jesus + Joseph Smith)
* Belief in a code of morals with a supernatural/superhuman origin (right and wrong are not merely conventional)
* Belief that science is an incomplete explanation for observed reality and will always remain such
* Belief that religious belief and observance has social utility (in addition to truth)

Does that list leave anything important out? Is it too extensive?

Light Posting

I have a project that really needs my attention, so the time for posting will be limited the next few days (including nights and even early mornings). Work is also really busy right now. I'll try to write a post later this afternoon on a few points, although I won't have much time to respond to the comments for a few days.

Speaking of comments, let's play nice, people.

Religious Themes

So I leave the blog alone for a day, and long, long comments bust out. I guess that posting on religion is the way to get responses.

Maybe a few quick responses to Tenaciousmcd's extremely thoughtful comments are in order. It is interesting that the commercialization of Christmas is less and less an issue, a point tmcd raises. To the extent that anyone complains about the commecialization or materialization of Christmas, it tends to come, today, from the "live simply" types, who tend not to be orthodox Christians. Most of these people I have known have been deeply spiritual, but not necessarily Christian in a traditional sense. This raises the question of New Age-y spirituality, a subject that tmcd also touches on when he notes the creedal minimalism of most American religion. Creedal minimalism is part of the answer here, in that the limited number of beliefs one must hold to be part of the "religious" camp is small enough to make coooperation against a common enemy (the dreaded secular left) possible.

What are the elements of that creed? The minimum set of beliefs to make one part of the religious as against the irreligious?

Btw, iumike also points out that political scientists are, well, concerned if not obsessed with the evolution of cooperation in competitive or at least contentious environments. But it's interesting that political scientists tend to take an external perspective on this question. The leading political science explanations don't really posit what the actors themselves believe to be moral, or their obligations. So many disciplines or fields of inquiry, so many differing perspectives on the same phenomena.

More

This is the Volokh post on why the "religious" believe in miracles. The comments are worth a look.

Are You Religious?

This is a follow-up to my last post on morality. The premise of the Volokh question posed there is that one can diide people into the categories "religious" and "irreligious." But I object!

If you tell me you're a football fan, I'll ask, "what's your team?" Because very, very few people are just "fans of the game." I mean, fans who go watch middle school games, watch West Coast games when they live in the Southeast . . . watch Phoenix Cardinals games. If you're a football fan, my guess is that you really follow a particular team, or maybe (if you're like me) a group of teams, which varies a little bit from year to year. But it varies largely based on players I like at any given time. So I used to follow the Colts, because I liked Jim Harbaugh (true story). Then I followed the Chargers, because of . . . Jim Harbaugh. Think of how many Packers fans Brett Favre has created.

The point is that it's really impossible to be religious in that general sense. I want to ask, "what's your team?"

Now, this is not to say that you can't be seriously observant in a particular religion. Don't get me wrong. You can be a Catholic, a Baptist, a Latter-day Saint, an Orthodox Jew, a Sunni Muslim, etc. But religions, er, disagree about some fundamental things, and that means that "religious" people actually disagree about lots and lots of things. So the category is not really that useful.

Now the one place the category has become increasingly used is in the Culture Wars, in which "people of [various and inconsistent] faith[s]" are supposedly at war with secularists. And I would agree that, on some particular issues, the category of "religious belief, almost any religious belief/observance" is useful, just as the category "secular" makes sense in some particular issue areas. The concepts do some work. Don't get me wrong.

But as a general category, covering everything?

Let's take an example. Bill O'Reilly and others are trying to save Christmas from, well, from whom? My sense is that retailers prefer "Happy Holidays" because it doesn't exclude certain consumers. (My sense, in other words, is not that this is because progressive secularists or any other group are pressuring the stores. This might occur in some cases, but I think the general phenomenon is probably driven by marketing departments.) But whom does "Merry Christmas" exclude?

Now, by almost any definition, I would be considered a secularist, one of the irreligious. But I celebrate Christmas, whole-heartedly and without reservation. Now I celebrate it as a secularist might, but I also like the message of love that the Christmas story embodies, in so many symbolic forms. I do so without compunction as a cultural Christian.

So "Merry Christmas" doesn't offend me. It wouldn't keep me away from the stores. I wouldn't mind shepherds and wise men and camels and a big, big star and angels and trumpets and the whole nine. I love "Silent Night." No problem here. I gladly wish people (who celebrate Christmas) a "Merry Christmas." (It may be PC, but I try to avoid wishing non-Christians a "Merry Christmas," because it doesn't make much sense to do so. Not because I don't want to offend. But wishing a non-Christian a Merry Christmas is like wishing someone a Happy Birthday in the wrong month.)

The line of cleavage here is not between the religious and the irreligious/secular but rather between cultural and observant Christians, on one side (and that group includes Bill O'Reilly and me, so it's a big group), on one side, and observant non-Christians (Jews and Muslims, primarily, but I guess there are a smattering of Hindus and Buddhists and . . . ?), non-observant non-Christians, and extreme secularists on the other side. The line is really not the one that is so often identified.

But the religious-irreligious dichotomy serves a need that many people feel, apparently, a strange kind of ecumenical belief that all religions are really one. They aren't.

Update: Make sure to read Rebecca's comment. Btw, part of the problem here is that I'm writing in response to someone else's post and working with, to some extent, their terms. Which are problematic. I almost wrote a post on the term "irreligious," too. It's an odd term, but the one Volokh was using.

Irreligious sounds a bit too much like irreverent, doesn't it?

Do people really think like this?

Over at the Volokh Conspiracy, EV asks his "irreligious" readers a question: Many of your beliefs might flow logically (perhaps not syllogistically, but using logical argument) from other beliefs. But at some point, you must reach what one might call a moral axiom that you can’t logically demonstrate. You doubtless find this axiom appealing. Yet why do you accept it?

There's more, by way of background:

Now if you believed that there was a God who created the world, who was concerned with human affairs, who in some measure controlled access to a happy afterlife, and who made his will known by delivering a book that chronicled both his prescriptions and a list of miracles that he himself had performed, you might choose as an axiom “Do what God tells me to do.” This itself wouldn’t be an open and shut argument; but I think that, if the factual assertions behind it were accurate, it would have substantial plausibility.

But you don’t believe this. Why then do you order your life around some particular moral axiom that you can’t logically support, especially when disregarding this axiom could save you a lot of hassle? Or do you think that you can indeed logically support your choice of axiom, without calling on some other axioms that you can’t logically support — and, if so, how?

The Volokh post is here, if you want to read more.

Now, if I were a "religious" person, I think I'd be offended by Volokh's post's question. Do people really cling to the infantile belief that the Good is defined by God's orders?

Now, before I'm accused of being ultra-something-or-other, let me pose the question in a less provocative way. If right and wrong are defined by God's orders, merely, then God could change right and wrong tomorrow. God could tell us (setting aside the transmission mechanism) that no, indeed, theft is perfectly fine. Or that killing should not receive a stigma. Or that truthfulness is a vice. Given Volokh's premise, if God did this, then right and wrong would flip-flop.

Now, I don't think that most people these days, and certainly not most Christians, believe that God is this capricious and arbitrary. (There is an argument from the Old Testament, but let's stick with the New Testament for the time being.)

But does that mean that God's "orders" are right because they conform to some extra-deity source, "the Good" or "the Right" or somesuch idea? That would mean that God is not omnipotent. Because God can't just change the definition of right and wrong, there are limits to his power.

The problem, then, is once you posit an omnipotent God, which orthodox versions of Christianity do, you run into all kinds of paradoxes (or "mysteries"). I think that the source of right and wrong/good and evil is less confounding than others (the Trinity is a tough one, but the problem of evil is the worst of all). But it's a confounding question, nonetheless.

Now, one can rest assured with God's clear commands, if you want a really simple explanation for right and wrong, good and evil, for, say, four-year-olds. But even Catholic natural-law theorists try to explain God's rules in terms of God's purposes. The commands are not just arbitrary commands (although their solution just pushes the problem on step later in the chain, because God's purposes are either arbitrary or beyond his control, neither of which, again, is a satisfying result).

Where is this post going? My response to Volokh is that one can't ask the "irreligious" to answer a question that the "religious" really can't answer satisfactorily, either. No one has a good answer for the "why be good?" question.

Indeed, I'm with Richard Rorty here in thinking that moral and ethical philosophy went astray when Plato decided that it was essential to answer the amoral ramblings of a fictional sociopath, Thrasymachus. Do you ever sit around and ponder, "Hmm. Why do I follow the rules, treat other people with respect, avoid stealing, killing, try to be honest with others and myself?" "Why do I try to pull my fair share of the weight?" (If you do, I want to rethink my association with you, so let me know in the comments that you are a sociopath.)

Probably not, and certainly not at a high level of generality. (In other words, you might justify a particular misdeed to yourself, but you don't make a general practice of immoral behavior, even when you could get away with it. And I bet that you worry yourself over certain immoral acts you've committed, even if they have had minimal impact on others' lives.)

Now, of course, there are two things at issue here. One is moral psychology, which is concerned with why we behave morally. Moral psychology takes in socialization and other factors. So most of the time I behave morally because I was trained to do so. The other thing here is straightforward moral philosophy, why we should behave morally. My sense is that moral philosophy doesn't offer any knockdown, final answers to the question, "why be good?" But my sense is that that is not that big of a problem. I think that moral psychology can do most of the work and things can go on, well enough.

Many, many people disagree (and will disagree) with me on this question. But my basic point is that just believing in God, alone, doesn't smooth the road here. "Because God says so" may work for third graders, but it is as unsatisfying an answer as those you'll find if you read the comments of the irreligious trying to answer Volokh's question.

The leading explanation seems to be self-interest. I agree that, from a naturalistic point of view, self-interest will often dictate what we understand as moral behavior. But self-interest can't really answer some questions (why do men sometimes willingly sacrifice themselves in war, and how is doing so self-interested? in other words, why is running away from shared danger viewed as immoral?). It's not a universal answer to the question posed. But I don't think that there is one.