Sullivan (and broken culture) again

[For some context, the last blog entry about Sullivan is here.  One could alternately refer to this here blog entry as Exhibit B.]

So, the subject of Justice (sic) Scalia's very recent bout of imbecility regarding gay rights came up on Andrew Sullivan's 'The Dish.'  Here's Sullivan's substantive take on the issue:

So lets challenge Scalia on "legislating morals". The public has every right to legislate morals but not to do so arbitrarily to punish and stigmatize a minority for doing the exact same things that the majority does all the time, i.e., sodomy. If the court has already determined that mass murderers have an inviolable right to marry, how is allowing gay people to marry somehow a sign of moral decline? If the court has already made non-procreative sex constitutionally protected for straight people, how is it that the very same thing, condemned for the very same reasons by Scalia's and my own hierarchy, is obviously immoral when it comes to homosexuals? 

It's that discrepancy that suggests that this argument is not about legislating morals, as Scalia insists. It is about legislating them unequally, and treating a tiny minority differently for no rational reason. This issue has been settled, as Scalia himself declared in his dissent in Lawrence vs Texas. He rightly said there that that decision essentially made gay marriage a constitutional inevitability. He was right. And he should uphold that precedent in these cases, if it comes to that. Or is he going to contradict himself?

Got all that?  Just in case you didn't:

He starts with, "So lets challenge Scalia on "legislating morals"."  Great!  After all, the whole notion of government "legislating morals" is so fucking offensive to genuine-liberal sensibilities that Scalia should be toast.  But wait!  Instead, Sullivan says:

The public has every right to legislate morals but not to do so arbitrarily to punish and stigmatize a minority for doing the exact same things that the majority does all the time, i.e., sodomy.

Is this what Jefferson had in mind when authoring the Declaration of Independence?  Is this what Thomas Paine had in mind when writing The Rights of Man?  Where does a supposed right of the public to do this-and-that come from?  Does "the public" have rights, or is it only individuals that have them?  If the public has rights, can they not be only the rights delegated to it by individuals?  That's the whole idea of civil government in Lockean-liberal terms: the individuals give up to the government rights of enforcement of the Law of Nature, in exchange for a much more effective, just, and stable system of securing and protecting their rights.  This is a goddamned no-brainer if you just read the opening part of the Declaration.

What is the just exchange of rights and responsibilities, benefits and burdens, involved when "the public" decides to punish a victimless crime?  The peaceful people doing their private consensual things give up their freedom to do so in exchange for . . . what?  Jack shit, that's what.

Let's call "legislating morals" that do not serve the end of protecting individual rights what it is: violations of individual rights by a majority that has no fucking business whatsoever interfering with victimless activity.  This whole notion of "legislating morals" is a "conservative" (read: right-wing) fantasy that may have held sway back in the day, but it's neanderthalism at this point in history.

And to be clear even further: "Legislating morals" and "protecting rights" cannot - in a rational system of government based on individual rights - be mashed together such that when government punishes a murderer, it is "legislating morals."  Only imbeciles - Justice (sic!) Scalia, for example - would run them together like that.  (See, once again, Spooner.)  (Here's Spooner again.)  (Lysander Spooner, "Vices are not Crimes.")

Spooner already refuted this bullshit well over a century ago.  Why "the morals-legislating public" isn't intimately familiar with this essay is a very good question.  I'll provide some hints to an answer in just a moment.

(In case you missed it: Spooner.)

(And there's no good argument that homosexual sodomy per se is even a vice!  Double imbecility from Scalia!  You know what is a vice, a deficiency, in an objective, Aristotelian/perfectivist code of ethics?  Willful imbecility on the part of those who should goddamn well know better.  Plato wrote The Republic, after all, with the idea in mind that imbeciles shouldn't be in positions of political power.  Remember the Athenians' "right to legislate morality" by sentencing Socrates to death?  Q.E.D., motherfuckers.)

To continue: What Sullivan turns this into is a case for "legislating morals" but not to do so "arbitrarily" and "unequally."  So it comes down to a Fourteenth Amendment issue, which is the primary basis (under present, corrupted jurisprudence) on which to strike down sodomy laws as unconstitutional.  How exactly does one distinguish between equal protection and equal rights-violation given this framing of things, praytell?  (Anyone else think of this question before I did?  Of course, it came to me at mind at the very first but I just forgot to ask or mention it in first drafit; hadn't yet perfected this subject in my mind till now.  [UP asks: how exactly do you figure out what "now" this is referring to?  Did you think of the question for yourself before, or after, seeing UP ask it above?  If it's "before," you're in a small minority of intellectually-well-informed people who happened upon this blog "early," making you well ahead of the rest of internet users and the "general public" in a very significant sense.  What results this fact will have, sociologically speaking, I guess I have to predict via my understanding of praxeology, memetics, moral theory, and so forth, to come to some overhelmingly amazing conclusion I haven't reached yet?  Whoa. :-D  So, what is "now" in UP's context?  In yours?  In the minds of those you love?  An exercise not just for present readers but for all of us, it appears....] serious and pensive Sagan face.)

Sullivan is correct that Scalia was not such an imbecile as to fail to recognize that striking down laws against sodomy would pave the way for marriage equality.  (He was an imbecile for being concerned about striking down sodomy laws on that basis, hence his morally obscene dissent in Lawrence.)  But all this misses the point, given Spooner.

As I pointed out in my previous blog entry, all of this intellectual and jurisprudential corruption can be circumvented by appeal to the Ninth Amendment, that is, to natural law, or to what Paine termed common sense.  If we want to be "originalists" (as Scalia supposedly is) in our interpretation of the Constitution, which involves reference to the intent of the Framers, then what other intent is there behind the Ninth Amendment than just what Jefferson and Paine referred to as The Rights of Man?  We can prattle on all we like about the intent of the more statist Framers - like those, for instance, who never intended for African-American slaves to have rights - but that doesn't do a fucking thing to negate the meaning and intent of the Ninth Amendment (which could also have been invoked to strike down slavery as unconstitutional, under a rational jurisprudence).

Well, I've gone on at some length already here, and the gist of the matter is plenty clear.  Having once been an avid reader of Sullivan's 'Dish', I'm disgusted by him these days.  I don't know if his brand of so-called conservatism inspired by Hayek and Oakeshott is undermined by the 'British' way of approaching governance post-Locke (see: J.S. Mill and utilitarianism) with which he was bombarded as a youth in the UK, but it isn't what American originalists like Jefferson and Paine - and, later, Spooner, and later still, Rand, Rothbard and Nozick - had in mind.  (There is also the matter of Sullivan's "dialectical" sensibility in trying to carve out some territory of reconciliation between different factions in today's politics, to reach some ostensibly reasonable and practical common ground of overlapping consensus; the primary problem here is the underlying corruption of the whole discourse as such today, which Sullivan does not address at its core [a matter for the discipline of philosophy to address].  A better term for Sullivan's "dialectical" sensibility here is pragmatism, with all the baggage that carries.)  But more disgusting still is what is revealed by this paragraph of Sullivan's article:

But the exchange also brought back something in my own past. Well over a decade ago (I can't remember when), one of the professors I taught students for at Harvard, Michael Sandel, invited me to debate my former dissertation adviser, Harvey C Mansfield, on marriage equality. It was for Sandel's legendarily popular course, "Justice". The fact that Harvey and I both agreed to do it and debated with civility and mutual respect (I revere Harvey as a scholar and as a human being) was, for me, somewhat moving, if also a little personally awkward.

Cutting to the chase: what the fuck is going on at Harvard that someone who teaches for Prof. Sandel doesn't understand the principles of rights underlying the Declaration of Independence?  Moreover, how the fuck does it happen that a former teacher of students at Harvard can so ignorantly blast Ayn Rand in the most extreme of terms?  (For that matter, what the fuck is going on in academia generally that a leading academic "philosophy" blogger does the same thing?)  Is it any surprise that Harvard is turning out so many statists along with so many morally and aesthetically vacuous Wall Street financiers and intellectually vacuous politicians (see: 2012 presidential election)?  Just what the fuck does a credential from Harvard signify, anyway?  Raw smarts can go only so far, after all, and Gates and Zuckerberg didn't need the credential to prove their economic worth.

This former teacher of students for Michael Sandel at Harvard concludes by quoting without comment the following from another author, one Paul Campos:

Scalia’s tactless fulminations are, at bottom, a reminder of why life tenure for Supremes is a bad idea, the badness of which increases in direct proportion to our average life expectancy. Put another way, someone who was in law school at a time when 96 percent of the public disapproved of interracial marriage should be considered too old to sit on the Supreme Court.

How is this asinine and irrelevant opinion worthy of so much as a quotation in the given context?

Something something Jefferson, Franklin and Paine appalled and aghast, etc.  Q.E.F.D.

Scalia vs. principles of liberty

UPDATED below.

I was going to title this blog entry "Scalia vs. liberty," but I suppose he sometimes - incidentally - comes out in favor of liberty.  But the issue here is principle: is Supreme Court Justice Antonin Scalia a principled advocate of liberty?

No, he is not.

[EDIT: On second thought, the best headline for this entry might very well be "Scalia vs. rights."  Let's each of us chew on that one.]

This item came to my attention today.  Rush Limbaugh is on record for saying for saying, at least a couple times, that if he could switch out his brain with someone else's, it would be Scalia's.  Given Limbaugh's gradual, sad descent into intellectual dementia, I can see why.  One of the "best legal minds of our time" responded to a student's sensible question regarding his comparison between laws banning sodomy and laws banning bestiality and murder:

“If we cannot have moral feelings against or objections to homosexuality, can we have it against anything?” Scalia said in response to the question, according to The Daily Princetonian. “I don’t think it’s necessary, but I think it’s effective.” 

Scalia told Princeton student Duncan Hosie that he is not equating sodomy with bestiality or murder, but drawing parallels between the bans. 

Scalia added dryly, “I’m surprised you weren’t persuaded,”  the student newspaper reported.

Oh, good lord.  Does this even merit comment?

Where does this guy live, under a fucking rock?

This is the second decade of the 21st century, after all, where gay ivy-league college students aren't going to find persuasive some asinine comparison of sodomy laws to bestiality laws, and yet Scalia finds himself "surprised" by their not being so persuaded.  He's got to have been living under a fucking rock.

But, more importantly, here's the article's description of Scalia's legal reasoning (sic) used in the landmark case, Lawrence v. Texas (2003), in which the Supreme Court struck down sodomy laws as unconstitutional:

Scalia had dissented in the case; in his dissent, he makes a couple of comparisons to laws against bestiality and declares, "nowhere does the Court’s opinion declare that homosexual sodomy is a 'fundamental right.'"

I'll go ahead and state it in plain, simple and blunt terms:

There is most definitely a natural right to engage in homosexual sodomy.

This comes from the reality-based observation that (a) people have the right to engage in private consensual activities with one another, and (b) private and consensual homosexual sodomy poses no credible threat to the security and well-being of society's members.  (This is also why people have a natural right to use cannabis responsibly.)  As to where one can find this right - implicitly - in the Constitution, Justice (sic) Scalia cannot fail to be unaware of the libertarian implications of the Ninth Amendment which refers to un-enumerated rights retained by the people, and of the illiberal implications of laws banning sodomy, pornography, birth control, victimless drug use, and so on.

(EDIT: Stupidity - Scalia's, for example - does in fact pose a credible threat to the security and well-being of society's members.  Maybe stupidity, intellectual laziness, ignorance, or plain old kookery should be made illegal?  I wonder why right-wing politicians, pundits and bloggers don't fanatically go after that real threat wherever it lurks (or, hell, is openly broadcast)?  Where's Michele Bachmann when we need her to protect us from this manifestly obvious threat to American Values?  Why the fuck is she spending her time focusing on a non-existent problem such as sharia law emerging in America?  Just because it's the brand of illiberal batshit-crazy theocracy-ism that she doesn't like, doesn't mean that it's anywhere near the threat that someone like, say, Antonin Scalia or his doppelganger John Yoo poses to our liberties.  Is down up in the right-wing mindset?  Good lord!  It's just so absurd, I don't know how people can endure such blatantly irrational idiocy with a straight face.... [Don't worry, proudly-ignorant left-wing socialism-embracers and Rand-haters, you're next up on my Shit List, beginning with the fact that I received not one single fucking answer in the affirmative to the question I posed here.  Just you wait till I'm in full intellectual-rampage mode, 'cause you ain't seen nuttin' yet, you fucking amateurs.])

What Justice (sic) Scalia is, is a "conservative" statist of sorts who only happens sometimes to support freedom.  What he is not, is someone whose occupancy of a Supreme Court seat should be considered a good thing for the country - especially not when he's so homophobic as to be unqualified to adjudicate the marriage-equality issue fairly or justly.  And that issue is, at this point in history, a no-brainer!  (I'll note that since the Prop 8 plaintiff's attorney Theodore Olson wrote his conservative case for gay marriage, no conservative group or publication has managed to produce anything remotely resembling a well-reasoned case against it.  Indisputable fact.  There's a reason why it is an indisputable fact: the overwhelming evidence, logic, and constitutional and natural principles of justice are on the side of marriage-equality.  Duh.)

I will also mention that the "conservative" Scalia sided with the "liberal" majority in Gonzalez v. Raich which upheld the (natural-rights-violating) federal drug laws on the grounds of the ominously-ever-expansive (under twentieth-century, post-Holmes, post-Dewey jurisprudence) Commerce Clause. These laws (wrongly) empower the government to prohibit a citizen from growing pot in his own backyard.  Meanwhile, Justice (sic) Scalia found some way to oppose the Affordable Care Act (Obamacare), presumably on the grounds that it would involve an unacceptable expansion of federal power.  What principle drives all of this is some idiosyncratic Scalian jurisprudence that I haven't gotten a grip on, but given how illiberal he is on issues like sodomy and weed, it is a corrupt jurisprudence, no question.

Since I first got interested in politics some decades back, my political sensibilities have always been more or less libertarian, with civil libertarianism on the so-called personal-freedom issues being one of the biggest no-brainers in political philosophy.  Just some good ol' Aristotelian common sense on my part, I suppose.  During this period of time one of the books that readily caught my attention given my areas of study/interest was Peter McWilliams's Ain't Nobody's Business If You Do: The Absurdity Of Consensual Crimes In A Free Society (1993).  I have not actually read this book, because it preaches to this choir.  (Given its unusually high rating by goodreads.com standards - 4.48 out of 5 stars with 285 ratings - perhaps it goes into the "must-read" category regardless.)

The story of McWilliam's own death - caused by corrupt jurisprudence (which stems ultimately from corrupt but influential philosophy) - is fucking insane.  Franklin, Paine and Jefferson would be aghast.

Thanks a lot, Justice (sic!) Scalia.

Asshole.

UPDATE: Lysander Spooner, bitches.

"The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." -some "progressive" asshole in a black robe

"The Ninth Amendment surely enacts Mr. Lysander Spooner's Natural Law." -The Ultimate Philosopher

(I've just been getting warmed up here these past months, mofos.  BTW, did you happen to catch that one ignorantly-Rand-hating asshole who runs a leading "philosophy" blog, whining recently about hedge-fund managers making a lot more than university professors?  It's like he's never heard of the concept of rarity of talents combined with the relative economic importance of skill sets.  Sure, Derek Jeter could probably teach high school classes, but can any high school teachers play shortstop for the New York Yankees?  Does a philosophy professor have the skill set to run a hedge fund or other demanding business venture?  Arguably a hedge-fund manager could have entered the philosophy profession instead, and do a good job at it (which really isn't all that hard if you absorb Aristotelian sensibilities, as way too many philosophy professors have failed so crashingly to do - as evidenced by the quality of students Higher Ed lets loose on the world nowadays), but who would run the hedge funds, then?  Such questions and answers occur as second nature to business-types but apparently never occur to a lot of university professors, especially those in the Humanities who are supposed to be expanding their cognitive horizons for fuck's sake.  I guess Marx-inspired economic value theory never accustomed them to understanding these things?  I'll just leave this here again.  Nozick > bitter whining asshole left-wing "philosophy" prof.  Say, why did Nozick go from leftist to libertarian?  Something something conversation with Murray Rothbard and individualist anarchism, something something Rothbard and Rand's Atlas Shrugged and Mises's Human Action, something something individualist anarchism and Lysander Spooner, something something footnote three to "A Framework for Utopia," something something "On the Randian Argument," something something "Nozick on the Randian Argument," something something "How to Derive Libertarian Rights," something something eudaemonistic egoism, something something "Flourishing Egoism," something something Personal Destinies, something something Aristotle, something something Allan Gotthelf, something something epistemology workshop, something something noble soul, something something man as heroic being, something something role of the mind in human existence (Marxian value-theory and historical materialism, eh?  Something reeks about all that. Class struggles? Like that going on between the darkly-comically entrenched Theory Class and ordinary human beings, for instance?), something something rationality as the fundamental virtue, something something Ayn Rand's Normative Ethics, something something Leonard Peikoff, something something Understanding Objectivism, something something Ayn Rand: The Russian Radical . . . wait a second, it's like there's some kind of dialectical progression/convergence/integration/ perfection going on here; anyone else notice that besides moi?  If not, why the hell not?  Also, to that whiny left-wing "philosophy"-prof blogger: Go fuck yourself, asshole. [cue Spaceballs-mog finger gesture and smooching noises] Cheers, UP :-p )