The senile kleptocrat at work.

It’s as simple as this:

Volodymyr Zelenskyy has the goods on Joe Biden. If he were to affirm what is already known, but denied by Democrats, the whole world — including corporate media — would pay attention. And that would be the end of Biden.

What is already known? That the Bidens reaped at least $10 million in bribes from Burisma, the huge Ukrainian oil producer, for access to U.S. officials and for arranging the firing of Ukraine’s attorney general, who was probing the corrupt dealings of Burisma.

Why is Zelenskyy holding back? Because as long as he holds back, and as long as Biden remains in the White House, the U.S. will continue to support Ukraine. With that support — hundreds of billions of dollars in arms and aid — Zelenskyy has been able to reject a peace offering from Russia and to prolong the war with Russia?

The cost? The deaths of tens of thousands of Ukrainians and Russians, the stoppage of Russian gas exports to the West, and the disruption of other trade (now extending to Ukraine’s vital grain exports).

Western Europe and the U.S. have (thus far) been spared deaths in combat, but they (that is, you and I and hundreds of millions like us) have paid and will continue to pay a high economic price for Zelenskyy’s extortion of the most corrupt president in America’s history.

Nor will Western Europe and the U.S. be spared deaths in combat (including civilian deaths) if the present hostilities take a turn that involves escalation to a NATO-Russia ground war — or worse.

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Related reading:

David DeCamp, “Putin Shows African Leaders Draft Treaty on Ukrainian Neutrality from March 2022”, Antiwar.com, June 18, 2023

Victor Davis Hanson, “The Ukraine-American
Gordian Knot”, American Greatness, June 19, 2023

David Sacks, “The Truth About Ukraine’s Failing Counteroffensive And The Peace That Could Have Been”, The Federalist, June 20, 2023

Leviathan’s standard-bearers, propagandists, and enablers.

The following list of enemies of liberty is in no particular order, and is not a mutually exclusive set.

Everyone who appeals to the Constitution of the United States but doesn’t understand its principal premise, which is the co-sovereignty of the States and a central government of enumerated and strictly limited powers (notwithstanding the purely aspirational Preamble, the widely misinterpreted General Welfare, Necessary and Proper, and Interstate Commerce clauses) and the States, which were in fact the creators of the Constitution — not the mythical “we the People”).

More than half of the elected officials of the central government, even when the GOP controls the White House and Congress.

A sizable chunk of the remainder (who choose to go along rather than be portrayed as “mean”).

Varying percentages of senior appointed officials of the federal government, but certainly more than half at the best of times.

Certainly more than half of judges at all levels of government.

Vast numbers of elected and appointed officials of State and local governments.

The overwhelming majority of civil servants at all levels of government, with the (diminishing) exception of law-enforcement officers (especially those of the central government).

Executives of large corporations who foster a cozy relationship with government, as rent-seekers, and who eagerly and visibly endorse government’s social meddling, as virtue-signalers.

Almost all of the professoriate in the “liberal” arts and humanities, social “sciences”, “education” indoctrination centers disciplines, and a dismayingly large and increasing segment of the “hard” sciences and medical sciences.

Almost all administrators at colleges and universities.

Most public-school teachers and administrators (who are excretions of the collegiate cabals).

Most “human resources” specialists, of whatever rank, wherever they are found.

Almost everyone who is employed by any kind of entertainment or news medium, from stars to back-room technicians (the exceptions are notable because they are so few).

Almost everyone who is directly or indirectly involved in the creation, performance, or presentation of “art” (musical, visual, plastic, performing, etc.), with the exception of some practitioners of “country” music.

Almost everyone who is a patron or aficionado of the aforementioned “arts”.

Most American Jews (ultra-Orthodox excepted), who are well represented in many of the other categories.

The vast majority of members of the various groups favored and supported by government officials, in a long-standing symbiotic relationship, including (but not limited to) blacks, Hispanics, women, homosexuals (and other members of the gender-confused community), and the aforementioned “artists”.

“Activists” of most stripes, who wish to remake the world in whatever utopian image enthralls them.

An alarming fraction of the clergy of “mainline” religious denominations, who have somehow come to believe that Christ’s exhortations regarding private charity should be enforced by government.

The spoiled children of capitalism who populate the campuses of most colleges and universities and go forth to subvert society.

Affluent Americans (the more affluent, the more left-leaning), whose unfounded guilt and alienation from reality have caused them to lose sight of the connection between self-reliance and dignity, and government’s powerfully destructive effect on both.

A residual but still very large fraction of white working-class persons who hope that government will make their lives better or at least come through with bigger handouts.

Every citizen who shares the aspirations of or simply supports any of the foregoing.

The idols of a feminized republic.

Children

The serialization in 1837-1839 of Charles Dickens’s Oliver Twist, in which the escapades of the young protagonist begin with his escape from a workhouse, neatly coincided with the enactment of Britain’s first law regulating child labor. Whether Twist had anything to do with the enactment, I have no idea, but the welfare of children has long been a subject of interest to political bodies.

That interest now comes with a macabre twist (pun intended) in this country. Impressionable and uniformed children are now encouraged in some jurisdictions (and by POTUS) to do irreparable harm to themselves despite their parent’s natural right to protect their children. Indeed, California is moving toward criminalization of parents who dare to inform their confused children that they are not members of the opposite sex or non-binary, and parents who dare to prevent those same vulnerable children from undergoing irreversible and psychologically devastating sex-change procedures.

Children are still victims, in ways that Dickens and the reformers of yore would condemn.

Blacks

Long story short: Blacks, for the most part, were truly victims in the eras of slavery and Jim Crow.

Blacks now — courtesy of “affirmative action” and white guilt — are overrepresented in many ways, ranging from college admissions to executive positions to their presence in films, TV shows, and commercials. All of that despite their genes and culture, which cause them to be overrepresented among low-income-earners, low-wealth-accumulators, and violent criminals.

But no matter, the “victimhood” of blacks permits them to riot, burn, and kill with near impunity. And it has come to the point that a cop (even a black one) dare not confront a black “victim” for fear of being persecuted for racism, if not killed in the line of duty.

Women

Women have been victims for so long that I will not venture a thumbnail sketch of their victimhood. The fascinating aspect of that victimhood is the continued depiction of women as oppressed when they dominate public education and college enrollments, and have become broadly represented in politics, the media, the academy, big business, the military, and you name it.

Women’s main gripe these days is that they are “underrepresented” in STEM disciplines, though that gripe conveniently overlooks inherent differences between male and female brain structures.

There is another gripe, which is about the intrusion of so-called “women” into women’s sports, but that can be reversed if women will just get their heads around the fact that conservatives who oppose the mutilation of children are equally opposed to unfair competition and forced mingling of the sexes.

I cannot resist noting that much which is wrong with America today — coddling of children who become criminals, coddling of criminals, the lowering of standards for jobs that require strength and speed, the tendency to create “victims” and then require their advancement on any basis but merit, and the victimization of women by so-called transsexuals — is due to the feminization of the culture, which traces back to the long dominance of women in public education.

It wouldn’t be easy, but neither was the American Revolution.

Malcolm Pollack (Motus Mentis), who seems to favor a national divorce, writes despairingly about possibility of obtaining one. His discourse is informed by three recent articles at Asylum: Michal Anton’s “Malcolm; or, on Separation”; a reply by Anonymous, “A National Divorce from Reality”; and Anton’s rejoinder, “How to Read Dialogues”.

I am resoundingly in favor of a national divorce (see this, this, this, this, and this). And it is far too soon to give up on the idea. As Anton says near the end of his rejoinder:

This situation is dire; it is not hopeless…. It is never hopeless because, first, one never knows what may happen. Virtue doesn’t always win, but it often does, and is only certain to lose when it doesn’t try. Second, fortune is capricious and does not consistently favor (as far as the human mind can discern) either side in any struggle. Third, adversaries make mistakes, even unforced errors. Fourth, despite its pretensions, this … thing cannot last forever…. Fifth, and perhaps most encouraging, “there is no reason for despair as long as human nature has not been conquered completely i.e., as long as sun and man still generate man. There will always be men (andres) who will revolt against a state which is destructive of humanity or in which there is no longer a possibility of noble action and of great deeds.”…

So I repeat the truism that, to know what to do, one must first debate what to do, which includes discussing the pros and cons of options that will eventually be ruled out. But the discussion must take place. Choosing smallball in advance is self-limiting, and will prove to be a mistake until and unless it is known that smallball will be sufficient and/or that all alternatives are impossible. Preemptive exclusions tend to cultivate defeatism.

Our enemies on the left — yes, they are enemies — will not relent until they are defeated. And if they are not defeated, every American who truly loves liberty will be oppressed and impoverished (along with the many other Americans who are blind to what is happening or who support it).

I cannot speak for anyone but myself, but I am with Patrick Henry.

Everyone should have at least one.

An effective conspiracy attains its ends and goes unproven, even if there is evidence of the conspiracy.

The most effective conspiracy in America’s history is probably the assassination of John F. Kennedy. There is more than reasonable doubt that Lee Harvey Oswald was the lone gunman, or even that he fired a shot when JFK was killed. There is good reason to suspect that persons who had an interest in the removal of JFK (and thus the neutering of Bobby Kennedy as attorney general) were behind the murder of president:

• LBJ, the failed candidate of 1960, who had been demeaned by the Kennedys, was probably going to be removed from the ballot in 1964, and was on the verge of having his massive graft and murderous exploits exposed, with resulting disgrace and jail time.

• J. Edgar Hoover, who was demeaned and shunted aside by the Kennedys.

• Elements of the CIA, which was about to be shredded for its sins: including but not limited to the mis-conceived Bay of Pigs operation and collaboration with the Mafia in schemes to assassinate Castro.

• Leading figures of organized crime who felt double-crossed because Bobby was pursuing them avidly despite their having poured money into JFK’s presidential campaign at the behest of Joe Kennedy.

• Texas oilmen who feared the loss of the oil-depletion allowance that made them rich, who also loathed the Kennedys’ politics, and who were LBJ’s allies and benefactors.

• Cuban exiles who felt betrayed because JFK didn’t authorize air support for the Bay of Pigs operation and thus — in their mistaken view — caused it to fail.

Putting it all together:

• LBJ set the assassination in motion.

• Key officials of the CIA and FBI set it up, with some assists by LBJ (e.g., the scheduling of the trip to Dallas).

• Lee Harvey Oswald was brought into the plot by the CIA as the unwitting fall guy.

• Jack Ruby, known to LBJ and mob-connected, silenced Oswald after his contrived arrest.

• The orchestrators and actors of the assassination — aside from LBJ and key officials of the CIA and FBI — included the Mafia; Cuban exiles; Mac Wallace, LBJ’s personal hit man; and a large cast obedient if not fully clued-in members of various institutions: CIA, FBI, Secret Service, and Dallas Police Department. (George H.W. Bush, then a CIA asset may have been involved in the recruitment of Oswald.)

• The report of the Warren Commission became the official story, regardless of its many omissions and evidentiary failings. (Gerald Ford played a key role in ensuring that the “lone gunman” theory became the official story.)

None of this is new to anyone who had done much reading about the assassination of JFK and the various investigations into it and theories about it. I am more open to the possibility of a conspiracy to kill JFK than I was eight years ago, when I concluded that Oswald acted alone:

I recently watched the NOVA production, Cold Case JFK, which documents the application of current forensic technology to the 50-year-old case. The investigators’ give a convincing explanation of the shooting in Dallas. The explanation supports the original “verdict” of the Warren Report: Lee Harvey Oswald was the lone shooter. He, and only he, fired the shots that killed JFK and wounded John Connally, then governor of Texas. The NOVA program moves me from “reasonable doubt” to “beyond a reasonable doubt,” with respect to who shot JFK and how.

Even then, there was a reasonable doubt in my mind:

The only conspiracy theory that might still be worth considering is the idea that Oswald was gunning for JFK because he was somehow maneuvered into doing so by LBJ, the CIA, Fidel Castro, the Mafia, or the Russians. (See, for example, Philip Shenon’s “‘Maybe We Missed Something’: Warren Commission Insider Publicly Concedes That JFK Assassination Was Likely a Conspiracy,” The Washington Post, September 22, 2014, republished in The National Post.) The murder of Oswald by Ruby conveniently plays into that theory. But I say that the burden of proof is on conspiracy theorists, for whom the obvious is not titillating enough. The obvious is Oswald — a leftist loser and less-than-honorably discharged Marine with a chip on his shoulder, a domineering mother, an unhappy home life, and a menial job. In other words, the kind of loser with a gun who now appears almost daily in the news, having slaughtered family members, former co-workers, or random strangers.

Thinking back on the PBS show, I am chagrined by my readiness to accept a story advanced by what Elon Musk rightly calls a state-run media outlet. The same chagrin applies to the final sentence of the preceding quotation, which have nothing to do with the physical evidence for or against Oswald’s role in the assassination.

Nor is the burden of proof on the conspiracy theorists. The Warren Commission’s report has been shown to contain as many holes as a sieve. The real burden of proof is — or should be — on the defenders of the official (Warren Commission) story.

The official story conveniently places the blame for the murder of JFK on one dead man. He is long beyond the reach of the justice. But even if he had been brought to trial, that trial would have been contrived to convict him and send him to the electric chair. Appeals would have been of no avail, because appellate judges would have been eager to support the government’s case and discredit talk of a conspiracy involving high officials of the government.

Why would judges (and other officials with no part in the conspiracy) support the government’s case? The groundwork for incuriosity was laid in the hours after the assassination. LBJ himself instigated the idea that there might be an international conspiracy of some kind, involving Cubans and Russians. It wasn’t in the “national interest” to poke too deeply into the assassination because revealing the role of the Russians/Cubans would lead to a heightening of already tense relations with the USSR (of which Cuba was a protectorate), possibly leading to nuclear war.

It was (and still is) the credo of government officials (not just cops) that their authority must not be challenged or questioned. (This has been demonstrated amply in recent years, with government officials striving to suppress dissenting views about COVID masking, COVID vaccinations, the nature of the January 6 riot, the long-standing plot against Trump, and the Biden influence-peddling scheme.)

To allow the official story to be challenged is to allow the legitimacy of government and its institutions to be challenged. Blind institutional loyalty runs especially deep in the CIA and FBI, both of which are like secret societies with much to hide from public view.

All of that is baked inside the paternalistic-fearful attitude of government officials toward the citizenry: We know what’s best for you, so we try to shield you from the “ugly facts”, which might frighten you and cause you to act rashly. Besides, if you know too much you’ll understand how corrupt and incompetent we really are, and then we’ll lose our grip on power — and possibly our wealth and freedom.

And so it goes, unto the present day.

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Related: Obamagate and Beyond

Intelligence.

Francis Menton (Manhattan Contrarian) expands on his earlier explanation of how to think like a “liberal” Supreme Court justice. In summary:

There is nothing complicated about the thinking of a liberal Supreme Court justice…. [T]he heart of the opinion is an appeal to fear and/or guilt, completely divorced from anything about the law. The basic argument is that because of either some looming menace, or your sins, or both, you must cede infinite power to your betters to run things outside the constitutional order. The law? Somewhere in the thousands of statutes and precedents out there, or maybe just from our superior moral compass, we can find something to serve as a pretext to support our desired result. The desired result is always more power to the bureaucrats and/or liberal elites.

Menton illustrates the formula by summarizing the dissents of “liberal” justices in some high-profile cases.

Justice (sic) Ketanji Brown Jackson’s dissent in the recently decided case of Students for Fair Admissions v. Harvard. The majority in that case (Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) ruled that universities may not make admissions decisions base on race. CJ Roberts’s majority opinion is quite clear on the point:

While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit….

That is a remarkable view of the judicial role—remarkably wrong….

For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints. We have never permitted admissions programs to work in that way, and we will not do so today….

At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universitiesfrom considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise…. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today…. A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.

Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.

Returning to Justice (sic) Jackson’s dissent, Menton notes this risible lapse in her defense of pro-black racism:

For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.

In fact:

[Jackson’s] claim was taken from an amicus brief filed by the Association of American Medical Colleges, which in turn was referencing a study that appeared in the Proceedings of the National Academy of Sciences.

First, the study does not claim to find a doubling in survival rates for black newborns who have a black attending doctor. Instead, in its most fully specified model, it reports that 99.6839% of black babies born with a black attending physician survived compared with 99.5549% of black babies born with white attending physicians, a difference of 0.129%.

The survival rate of 99.6839% is not double 99.5549%….

Second, even if the results of the Proceedings of the National Academy of Sciences study were accurately described, they should not be believed. The study’s comparison of death rates for newborns who have doctors of different races does not take into account the fact that black newborns have a greater likelihood of serious medical complications and the attending physicians assigned to treat those more challenging cases are likely to be white.

For example, the study does control for whether newborns are low weight (less than 2,500 grams), but does not control for whether they are very low weight (less than 1,500 grams). Black newborns are almost three times as likely as white newborns to weigh less than 1,500 grams.

Doctors assigned to treat very low-weight babies are more likely to be specialists, rather than regular pediatricians or family practitioners. Black doctors are significantly less likely to be found in those specialized fields.

More than 5% of pediatricians or family practice physicians are black, compared with 3.8% of neonatologists and pediatric cardiologists, and 1.8% of pediatric surgeons.

Rather than demonstrating the protective benefits of black newborns having black doctors, the Proceedings of the National Academy of Sciences study only documents that black newborns are more likely to have severe issues that increase their risk of infant mortality, and those severe cases are more likely to have white attending physicians because white doctors are more prevalent in the specialized fields that treat those complications.

The study provides no convincing evidence on whether black newborns with identical conditions would fare better, worse, or no differently with a black or white doctor.

Third, even if Jackson could describe the results of the study accurately and even if those results were credible, the finding would not support the claim that we should employ racial preferences in medical school admissions.

As a practical matter, increasing the number of black doctors so that every black newborn could be ensured to have one would require significant dilution in the quality of doctors so that the modest benefit claimed in the study would likely be swamped by the harm of less capable physicians.

And so we arrive at the heart of the issue. “Underrepresentation” of blacks in colleges, universities, and professions that require high intelligence isn’t caused by racism. Neither is the “wealth and health gap” to which The New York Times devoted considerable space earlier this year.

Income, wealth, and health are highly correlated with intelligence — though less highly correlated than they would be in the absence of state-sponsored and state-condoned discrimination in favor of blacks.

As Dov Fischer says,

the same disadvantaged groups who today rely on blaming instead of self-help will then be at the same exact rung on the social order that they are today, just as 50 years of racism-free society and Great Society “entitlements” have not accomplished equality of results today, even as newcomers from Asia entered this country these past 50 and 60 years and leap-frogged those already here.

Blacks, on the whole, are not where they are because of whites and Asians (the real victim group in SFFA v. Harvard), but because of their genes, and because of a culture that reinforces their genetic inheritance.

The majority of the Supreme Court is undoubtedly aware of the disparity that underlies affirmative action. But being good judges who base their decisions on the law, they do not appeal to that disparity. The law of the land is enough for them, as it should be.

Even the mighty can stumble into delusional thinking.

Glenn Harlan Reynolds, a professor of law and driving force of the long-running and widely followed blog, Instapundit, proves his fallibility in “Intolerant Society” (The New Criterion, June 2023). Reynolds (unsurprisingly) offers a rhetorically resounding defense of “free speech” on college campuses. The centerpiece of his defense consists of the following quotations from Lee Bollinger’s book The Tolerant Society: Freedom of Speech and Extremist Speech in America:

To see free speech as concerned not just with protecting the activity of speech but with the reaction to that activity, and to the personal values reflected in those reactions, changes considerably our idea of the ends served by the principle. We have already seen the range of importance to the community of learning to exercise self-restraint toward behavior found offensive or threatening. It seeks to induce a way of thinking that is relevant to a variety of social interactions, from the political to the professional. Significantly, this perspective sees the social benefits of free speech as  involving not simply the acquisition of the truth but the development of intellectual attitudes, which are important to the operation of a variety of social institutions—the spirit of compromise basic to our politics and the capacity to distance ourselves from our beliefs, which is so important to various disciplines and professional roles.

It also promises a benefit we can all feel, individually as well as collectively, of avoiding the burdens that the impulse to intolerance can impose on us, or that through it we impose on ourselves. To escape its demands or, more accurately, to reduce the power of its grip, to become the master of the fears and doubts that drive us to slay the specter of bad thoughts, is an achievement of the first magnitude.

* * *

Under the general tolerance function, free speech is not concerned exclusively with the preservation of a freedom to do whatever we wish, or with the advancement of truth or democracy as those terms are generally used, but with the development of a capacity of mind, with a way of thinking.

Reynolds’s reaction?

A spirit of tolerance means that others can’t yank your chain simply by propounding ideas you don’t like.

It’s worth adding that habitual emotions and actions are self-reinforcing. Get consumed with anger at “wrong” ideas once, and you will probably be consumed more easily the next time, and the time after that. Practice self-restraint and you will likely become more capable over time. (It’s called “practicing” self-restraint for a reason.)

This is a wonderful theory, and it offers useful guidance not only for colleges and law schools, but also for society at large….

There is much for us to learn from the idea of exercising the muscles of tolerance, on both an individual and a societal level. “Use it or lose it,” as the bodybuilders say, and we have every reason to think that our societal tolerance muscles have grown rather flabby in recent years.

This is balderdash, and Reynolds the blogger would see through it. But he’s writing as a (conservative) professor of law whose knee-jerk reaction is to defend “free speech” at all costs.

Bear with me if you believe, at this point, that I’m defending the administrators, professors, and students who oppose “free speech” on campuses because it hurts their tender sensibilities. I am not defending them by any means. But Reynolds’s attack is on the wrong track.

Take the metaphor about exercising the muscles of tolerance. Why would a person tolerate ideas that could harm him? Ideas can harm as well as help. Ideas, when put into action, have consequences.

The so-called marketplace of ideas, like science, is not self-correcting. If the “marketplace” was ever a good thing, it has been corrupted almost beyond redemption.

The aim of the “free speech movement” of the 1960s was to substitute leftist dogmas for the tried and true tenets of personal responsibility, punishment for crime, and reward based on accomplishment. The name of the movement died out, but its ends and means lived on. Thus we have today’s campuses, media outlets, and orthodox (leftist) political stances — all of them against the expression of views they oppose.

Fair enough. When you have power, use it. But turnabout — though it isn’t fair play — is a consequence of the loss of power. If Republicans ever regain the White House and solid majorities of the House and Senate, my fervent wish is that they put a stop to this delusional talk of “free speech”.

Freedom of speech is beneficial only if a vast majority of the populace shares certain fundamental values:

• Free markets produce the best outcomes, especially when people take personal responsibility for their economic situation.

• Social comity rests on taking personal responsibility for one’s actions, not making excuses or blaming “the system”.

• The last six of the Ten Commandments are the best guides to proper behavior.

• Duly enacted laws are to be upheld until they are duly revised or rescinded.

• Social and economic freedom come down to mutual trust, mutual respect, and mutual forbearance, which describes the state of liberty. Without those things, there is no liberty.

The Framers of the Constitution could not envision a free society in which the foregoing tenets were routinely and gleefully violated. That is because there cannot be a free society where the foregoing tenets are routinely and gleefully violated.

It’s long past time to get serious about “free speech”. Glenn Reynolds and his ilk among RINOs aren’t serious. Basta!

Arsonists who burn down the buildings in which they live belong in jail. The same goes for the leftists who have been burning the Constitution for decades.

Instead of jail, let them secede. And good riddance.

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Related:

The Paradoxes and Consequences of Liberty and Prosperity

The Real Tragedy of the End of “Free Speech”

“Illness” is a cop-out.

Hunter Biden is a drug addict. Jordan Neely was crazy. Both of them — and millions of other Americans like them — are frowned upon by normal Americans (still a majority, I believe). They are frowned upon not just because of their abnormal behavior, but because it had bad consequences for others.

Biden is scheduled to receive a judicial slap on the wrist because his father is president. Neely was killed by a man who was defending himself and others from harm. The man who killed Jordan Neely, Daniel Penny, has been charged with criminally negligent homicide and second-degree manslaughter. He should have received a commendation.

Such is justice when Democrats are in charge.

I am still trying to locate them.

I am here republishing (with minor corrections) a post from 2017. I was reminded of it by “A Bracing Constitutional” (The New Criterion, June 2023) a review by Glenn Ellmers of Hadley Arkes’s Mere Natural Law: Originalism and the Anchoring Truths of the Constitution. What I say below applies to that book, as I understand its thrust from the review.

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An esteemed correspondent took exception to my statement in “Natural Law, Natural Rights, and the Real World” that I “don’t accept the broad outlines of natural law and natural rights”, which I had summarized thus:

Natural law is about morality, that is, right and wrong. Natural rights are about the duties and obligations that human beings owe to each other. Believers in natural law claim to start with the nature of human beings, then derive from that nature the “laws” of morality. Believers in natural rights claim to start with the nature of human beings, then derive from that nature the inalienable “rights” of human beings.

A natural law would be something like this: It is in the nature of human beings to seek life and to avoid death. A natural right would be something like this: Given that it is natural for human beings to seek life and avoid death, every human being has the right to life.

The correspondent later sent me a copy of Hadley Arkes’s essay “A Natural Law Manifesto” (Claremont Review of Books, Fall 2011, pp. 43-49). There’s an online version of the essay (with a slightly different opening sentence) at the website of The James Wilson Institute on Natural Rights and the American Founding, which I’ll quote from in the course of this post.

I don’t lightly dismiss natural law and natural rights. Many proponents of those concepts are on the side of liberty and against statism, which makes me their natural ally. As I say in “Natural Law, Natural Rights, and the Real World”, my problem with the concepts is their malleability. It is too easy to claim to know specifically what is and isn’t in accordance with natural law and natural rights, and it is too easy to issue vague generalizations about rights — generalizations that collapse easily under the weight of specification.

Consider the UN’s Universal Declaration of Human Rights, which rights are declared to be inalienable (i.e., natural). (The Declaration’s 30 articles comprise 48 such rights.) Quotations from the Declaration are followed by my comments in italics:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. What is arbitrary? One person’s “arbitrary” will be another person’s “lawful,” and there will be endless quibbles about where to draw lines.

1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country. Everyone, even including criminals and terrorists? And if “everyone” is qualified by criteria of criminality, there will be endless quibbles about those criteria.

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. But what if the practice of a religion includes the commission of terrorist acts?

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. The qualification about the “organization and resources of each State” speak volumes about the relative nature of entitlements. But left unsaid is the nature of the “right” by which some are taxed to provide “social security” for others. Is there no natural right to the full enjoyment of the fruits of one’s own labors? I would think that there would be such a natural right, if there were any natural rights.

Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. See the preceding comment.

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. Ditto.

It goes on an on like that. And the UN’s litany of “rights” is surely one that millions or even billions of people would claim to be “natural rights” which inhere in them as human beings. Certainly in the United States almost every Democrat, most independents, and a large fraction of Republicans would agree that such rights are “natural” or God-given or just plain obvious. And many of them would put up a good argument for their position.

If the Declaration of Human Rights seems too easy a target, consider abortion. Arkes and I are in agreement about the wrongness of abortion. He says this in his essay:

[T]he differences in jural perspective that I’m marking off here may have their most profound effect as they reach the most central question that the law may ever reach: who counts as a human person—who counts as the kind of being whose injuries matter? It was the question raised as President Bill Clinton vetoed the bill on partial birth abortion and expressed the deepest concern for the health of the woman denied that procedure. Of that other being present in the surgery, the one whose head was being punctured and the contents sucked out—the assault on the health of that being made no impression on Clinton. The harms didn’t register because the sufferer of the harms did not count in this picture.

But in raising questions of this kind, a jurisprudence with our [natural law] perspective would pose the question insistently: what is the ground of principle on which the law may remove a whole class of human beings from the circle of rights-bearing beings who may be subject to the protections of the law?

The “ground of reason”m though I hesitate to call it that, is the libertarian doctrine of self-ownership (which is tautologous). The child in the womb is dependent on the mother for its life. It is therefore up to the mother to decide whether the “demands” of the child in the womb should take precedence over other aspects of her life, including the remote possibility that bearing a child will kill her.

My objection to abortion is both empathic and prudential. Empathically, I can’t countenance what amounts to the brutal murder of an innocent human being for what is, in almost every case, a matter of convenience. Prudentially, abortion is a step down a slippery slope that leads to involuntary euthanasia. It puts the state on the wrong side of its only legitimate function, which is to protect the lives, liberty, and property of the citizenry.

In any event, Arkes’s essay is as much an attack on jurisprudence that scorns natural law as it is an explication and defense of natural law. In that vein, Arkes says this:

I come then today, perhaps in the style of Edmund Burke, to make An Appeal from the Old Jurisprudence to the New: from the old jurisprudence, which relied on natural law as a matter of course, to a new conservative jurisprudence that has not only been resistant to natural law, but scorns it. At one level, some of the conservative jurists insist that their concern is merely prudential: Justice Antonin Scalia will say that he esteems the notion of natural law but the problem is there is no agreement on the content of natural law. Far better, he argues, that we simply concentrate on the text of the Constitution, or where the text is silent, on the way in which the text was “originally understood” by the men who framed and ratified it.

Justice Scalia’s key point — there is no agreement on the content of natural law — is underscored by two letters to the editor of the Claremont Review of Books, and Arkes’s reply to those letters (all found here). The writers take issue with Arkes’s pronouncements about the certainty of natural law. The crux of Arkes’s long and argumentative reply is that there are truths that may not be known to all people, but the truths nevertheless exist.

That attitude has two possible bases. The first is that Arkes is setting himself up as a member of the cognoscenti who knows what natural law is and is therefore qualified to reveal it to the ignorant. The second possibility, and the one that Arkes seems to prefer, is that reasonable people will ferret out the natural law. For example, here is a comment and reply about the 14th Amendment:

Max Hocutt: Arkes’s discussion of the 14th Amendment raises a very difficult question: its contemporaries believed mix-raced marriage to be contrary to nature. On the basis of what definition of nature is Arkes confident they were mistaken?

Arkes: It is quite arguable in this vein that the framers of the 14th Amendment did not understand the implications of their own principles when they insisted that nothing in that amendment would be at odds with the laws that barred marriage across racial lines. On the other hand, Mr. Hocutt may want to argue that there was no inconsistency, that there may be some kind of argument in prudence, or perhaps even a racial principle, that could make it justified to bar marriage across racial lines. Well, it is quite possible to have that argument. And the only way of having the “argument”— the only thing that makes it an argument—is that there are standards of reason to which we can appeal to judge the soundness, the truth of falsity, of these reasons.

Clearly, Arkes believes that the “standards of reason” will result in a declaration that the 14th Amendment allows interracial marriage, even if the amendment’s framers didn’t intend that outcome. But Arkes concedes that there is an argument to be had. And that is why Justice Scalia (and I, and many others) say that there is no agreement on the content of natural law, and therefore no agreement as to the rights that ought to be considered “natural” because they flow from natural law.

For example, there is eloquent disagreement with Arkes’s views in Timothy Sandefur’s review of Arkes’s Constitutional Illusions and Anchoring Truths. Notably, Sandefur is also a proponent of natural rights, and I have sparred with him on the subject.

Endless arguments about natural law and natural rights will lead nowhere because even reasonable people will disagree about human nature and the rights that inhere in human beings, if any. In “Evolution, Human Nature, and ‘Natural Rights’”, I explain at length why human beings do not have inherent (i.e., inalienable or “natural”) rights, at least not in the way that Arkes would have it. In the end, I take my stand on negative rights and the Golden Rule:

The following observations set the stage for my explanation:

1. “Natural rights” inhere in a particular way; that is, according to Randy Barnett, they “do not proscribe how rights-holders ought to act towards others. Rather they describe how others ought to act towards rights-holders.” In other words, the thing (for want of a better word) that arises from my nature is not a set of negative rights that I own; rather, it is an inclination or imperative to treat others as if they have negative rights. To put it crudely, I am wired to leave others alone as long as they leave me alone; others are wired to leave me alone as long as I leave them alone.

2. The idea of being inclined or compelled to “act toward” is more plausible than idea that “natural rights” inhere in their holders. It is so because “act toward” suggests that we learn that it is a good thing (for us) to leave others alone, and not that we (each of us) has a soul or psyche on which is indelibly inscribed a right to be left alone.

3. That leads to the question of how one learns to leave others alone as he is left alone by them. Is it by virtue of evolution or by virtue of socialization? And if the learning is evolutionary, why does it seem not to be universal; that is, why it is so routinely ignored?

4. The painful truth that vast numbers of human beings — past and present — have not acted and do not act as if there are “natural rights” suggests that the notion of “natural rights” is of little practical consequence. It may sometimes serve as a rallying point for political action, but with mixed results. Consider, for example, the contrast between the American Revolution, with its Declaration of Independence, and the French Revolution, with its Déclaration des droits de l’Homme et du Citoyen.

5. Even if humans are wired to leave others alone as they are left alone, it is evident that they are not wired exclusively in that way.

And now, for my natural (but not biologically deterministic) explanation. It comes from my post, “The Golden Rule and the State“:

I call the Golden Rule a natural law because it’s neither a logical construct … nor a state-imposed one. Its long history and widespread observance (if only vestigial) suggest that it embodies an understanding that arises from the similar experiences of human beings across time and place. The resulting behavioral convention, the ethic of reciprocity, arises from observations about the effects of one’s behavior on that of others and mutual agreement (tacit or otherwise) to reciprocate preferred behavior, in the service of self-interest and empathy. That is to say, the convention is a consequence of the observed and anticipated benefits of adhering to it.

The Golden Rule implies the acceptance of negative rights as a way of ensuring peaceful (and presumably fruitful) human coexistence. But, as I point out, there is a “positive” side to the Golden rule:

[It] can be expanded into two, complementary sub-rules:

• Do no harm to others, lest they do harm to you.

• Be kind and charitable to others, and they will be kind and charitable to you.

The first sub-rule — the negative one — is compatible with the idea of negative rights, but it doesn’t demand them. The second sub-rule — the positive one — doesn’t yield positive rights because it’s a counsel to kindness and charity, not a command….

An ardent individualist — particularly an anarcho-capitalist — might insist that social comity can be based on the negative sub-rule… I doubt it. There’s but a short psychological distance from mean-spiritedness — failing to be kind and charitable — to sociopathy, a preference for harmful acts…. [K]indness and charity are indispensable to the development of mutual trust among people who live in close proximity, without the protective cover of an external agency (e.g., the state). Without mutual trust, mutual restraint becomes problematic and co-existence becomes a matter of “getting the other guy before he gets you” — a convention that I hereby dub the Radioactive Rule.

The Golden Rule is beneficial even where the state affords “protective cover,” because the state cannot be everywhere all the time. The institutions of civil society are essential to harmonious and productive coexistence. Where those institutions are strong, the state’s role (at least with respect to internal order) becomes less important. Conversely, where the state is especially intrusive, it usurps and displaces the institutions of civil society, leading to the breakdown of the Golden Rule, that is, to a kind of vestigial observance that, in the main, extends only to persons joined by social connections.

In sum, the Golden Rule represents a social compromise that reconciles the various natural imperatives of human behavior (envy, combativeness, meddlesomeness, etc.). Even though human beings have truly natural proclivities, those proclivities do not dictate the existence of “natural rights.” They certainly do not dictate “natural rights” that are solely the negative rights of libertarian doctrine. To the extent that negative rights prevail, it is as part and parcel of the “bargain” that is embedded in the Golden Rule; that is, they are honored not because of their innateness in humans but because of their beneficial consequences.

Finally:

Among those of us who agree about the proper scope of rights, should the provenance of those rights matter? I think not. The assertion that there are “natural rights” (“inalienable rights”) makes for resounding rhetoric, but (a) it is often misused in the service of positive rights and (b) it makes no practical difference in a world where power routinely accrues to those who make the something-for-nothing promises of positive rights.

The real challenge for the proponents of negative rights — of liberty, in other words — is to overthrow the regulatory-welfare state’s “soft despotism” and nullify its vast array of positive rights. Libertarians, classical liberals, and libertarian-minded conservatives ought to unite around that effort, rather than divide on the provenance of negative rights.

Given the broad range of disagreement about the meaning of the Constitution and the content of natural law, neither will necessarily lead to judicial outcomes of which both Arkes and I approve. What really matters is whether or not judges are conservative in the sense that they are committed to the peaceful, voluntary evolution and exercise of social and economic relationships. Conservative judges of that stripe will more reliably use the words of the Constitution to protect and preserve the voluntary institutions of civil society and the salutary traditions that emerge from them. It is, after all, the Constitution that judges are sworn to support and defend, not amorphous conceptions of natural law and natural rights. As I say in “How Libertarians Ought to Think about the Constitution”, the document “may be a legal fiction, but … it’s a useful fiction when its promises of liberty can be redeemed.”

Arkes’s complaints about Justice Scalia and other strict constitutionalists exemplifies the adage that “perfect is the enemy of good”. The real alternative to Scalia and others similarly inclined isn’t a lineup of judges committed to Arkes’s particular view of natural law and natural rights. The real alternative to Scalia and others similarly inclined is a Court packed with the likes of Douglas, Warren, Brennan, Blackmun, Stevens, Kennedy, Souter, Breyer, Ginsburg, Sotomayor, Kagan, and Jackson — to name (in chrononlogical order) only the worst in a long list of egregious appointments to the Supreme Court since the New Deal.

I prefer the good — reliably conservative justices like Scalia, Thomas, and Alito — to the impossible perfection sought by Hadley Arkes.