Void Where Prohibited

In the 1860s, the Supreme Court of the United States heard the case of McGuire v. Commonwealth. Mr. McGuire was prosecuted and convicted for retail distribution of liquor in Massachusetts, where the so-called “temperance movement” had taken hold. Regardless of his federally issued license to sell liquor, Mr. McGuire was indicted and convicted of selling liquor in violation of state law. At the Supreme Court, his attorneys argued that the federal power to sell licenses for the wholesale of liquor preempted the power of the Commonwealth of Massachusetts to effectively nullify those licenses by prosecuting those who attempted to use them. If the states could do so, they would essentially hold the power to excuse themselves from the authority of Congress on any taxation and licensing issue. Their arguments were not availing.

Although the heart of the legal issue was the relationship between federal and state power, Messrs. Cushing and Richardson, the attorneys, were at their best in arguing against temperance laws on their own merits. They argued persuasively (especially to those of us with the benefit of hindsight) against prohibition. Many of their points are worth consideration for how prescient they were and how applicable they remain.

1. It is not true, as alleged, that wines, fermented liquors, or even distilled spirits, are poisons of themselves, otherwise than that everything we eat or drink may be deleterious if used in excess.

It is always striking how the word “temperance” is always used to mean “abstinence”, while the word itself surely implies “moderation.” And not only is alcohol not an evil in itself, it has health benefits as will be seen later.

2. In view of the example and injunctions of our Saviour and his Apostles, in this respect, it cannot be true that the use of wine is immoral of itself.

Rumor has it that there are actually certain Christian sects that claim that when Jesus turned water into wine that it was non-alcoholic because it did not have time to ferment. As if Jesus’s power was limited to changing water into grape juice and was insufficient for turning sugar into alcohol and carbon dioxide.

3. It is not true, as pretended, that it is our duty to abstain utterly from any object of health or enjoyment because others may abuse it. The effect of this doctrine would be to deprive us of everything desirable, even the dearest of all human relations; since nothing exists for the use of man which some men will not abuse.

This is a very similar argument to the one made in an earlier post on this blog about prohibitions on gambling. Viz. the fact that some people are unreasonable is not a sufficient reason to ban reasonable people from X.

4. It avails nothing to make war on the sale of distilled spirits; for spirits may be distilled in every man’s kitchen, by means as cheap, as accessible, and as manageable as the preparation of a cup of tea or coffee; and if it were not so, other anaesthetic agents exist, which the law cannot reach, such as opium and bang, the familiar means of intoxication used by more than half of the human race, to say nothing of the professed anaesthetic medicaments.

There are two arguments here, both of which are commonly advanced regarding the prohibition on hemp. 1. Despite the insane amount of money spent on the “war on drugs”, hemp is still easy to grow or otherwise obtain, and 2. cracking down on any given drug drives people to other drugs, often more dangerous ones. Many people have observed that if hemp were more available and accepted, that would be a tremendous step toward overcoming the current opioid crisis.

5. The universal prevalence of the use of one or another object of this nature, in all ages, all countries, and all states of society, serves to show that they satisfy a physical exigency of man’s organization as imperative as that of food, and of course laws cannot eradicate, although they may regulate, such use.

Ah yes, the biological imperative to get impaired. People have always self-medicated for depression, anxiety, and all of the other conditions for which we have only lately had names. Wine may not be the best medicine for these maladies, but it is also far from the worst.

6. It shocks the sense of mankind, to prohibit absolutely by law the use of wines, fermented liquors, and distilled spirits as a healthful beverage in moderation of use; and the effect of such laws, if rigidly enforced, would only be to introduce by the side of the vice of drunkenness, the worse one of universal hypocrisy.

Again, the parallels with arguments over legalized hemp are stunning. Several states have decriminalized hemp specifically for medicinal use. Those who would impose a total ban on hemp “for the public health” are surely hypocrites in this regard.

7. It confounds all distinction of right and wrong, in the acts of instructed men, and in the conscience of the less instructed, to seek to elevate the use of wine to the dignity of an illegal and immoral thing, for the suppression of which all the energies of society should be tempestuously exerted.

There is a lot going on here. In the first place, there is an important misrepresentation of the law. The laws of prohibition (be they alcohol, hemp, opium, etc.) traditionally do not criminalize the use of the product. It is not illegal to consume hemp, it is illegal to have hemp. This distinction is important because laws properly curtail actions rather than things. One should always remember that when a law purports to ban a thing, it is actually banning you from doing something. All bans are essentially limits on personal freedom.

Secondly, they touch on the amount of government effort that would be required to actually suppress the consumption of alcohol. The combined effect of alcohol prohibition and the “war on drugs” set back society immeasurably, if only because of the tremendous waste of money and manpower on the (attempted) enforcement of these laws.

The so-called temperance agitation has effected no abatement, in the whole, of the use or abuse of intoxicating drinks, and in the end will probably produce, by recoil, a state of things worse than that which existed before the agitation. No superiority then over the nation is due to those legislators of Massachusetts, who pretend to be “more powerful than Nature, wiser than Truth, better than God.”

Hear, hear!

Beer of the week: Lakefront IPA – It is a new year, but not a new beer. I’ve had this Milwaukee brew several times, and occasionally on-site at the Lakefront Brewery. The head leaves plenty of good lacing on the glass. The flavor is quite balanced, with a solid malt body layered with plenty of juicy hops. Lakefront are certainly doing good work.

Reading of the week: McGuire v. The Commonwealth, 70 U.S. 3 Wall 387 (1866) – There are some people who think that government regulation is the solution to every societal problem. But positive law is extremely limited in what it can accomplish. As the learned counsellors argue: “English and American society has been floundering along from one folly to another in the paths of false theory and unphilosophical legislation, under the influence of the idea that statute law is the all-sufficient remedy of every sort of human infirmity; an idea which is itself the special human infirmity of the well-intentioned people of New England.”

Question for the week: The temperance movement was led by Christians. What is the strongest scriptural basis for a policy of teetotaling?



We are told that there are certain individuals who subscribe to a notion known as “biblical literalism”. These people, allegedly, take the Bible as being quite literally true and accurate in all respects. But I doubt that anybody who has given the matter any thought actually holds such a belief. A very simple question based entirely on the first page of Genesis serves to disabuse anybody of the idea that the Bible can be read as literal fact rather than as allegory: in which order were plants, animals, and man created?

The first creation story, contained in the First Chapter of Genesis places the creation of plants in the third day. All sorts of plants sprouted all over the land and bore seeds according to their type. Animals came to be on the fifth day. Humans were created on day six.

1. Plants; 2. Animals; 3. Man.

In the second creation story, contained in the next chapter of Genesis, humans were created before any plants had sprouted. Only after the creation of man did God make trees for the garden of Eden. Then, after man was in the garden, God made all of the animals to keep him company.

1. Man; 2. Plants; 3. Animals.

If they are taken as literal accounts, these two creation stories are irreconcilable. Biblical literalism can go no further than the very first page of the very first book of the Bible. And because this initial contradiction is so evident and so immediate, it seems unlikely that anybody truly is a biblical literalist. This is actually helpful, because it immediately indicates that the purpose of the Bible is to teach something other than literal history. What is left open, however, is the question of what the Bible really means…

Beer of the week: Grapefruit Sculpin- Traditionally, the fruit of the Tree of Knowledge is represented as an apple. But who’s to say that it wasn’t a grapefruit? This beer is a grapefruit twist on Ballast Point’s Sculpin IPA. The grapefruit aroma is evident as soon as the can is cracked. The beer pours with a fluffy head that hangs around. It has some of the bitterness of grapefruit rind and a smooth finish. Pretty good.

Reading of the week: The Book of Genesis, Chapters 1 & 2 – In my younger days, I liked to engage street evangelists. On multiple occasions, I found them unaware that there are two distinct creation accounts. I suspect that they had simply not read much scripture, and had received their Biblical teaching second-hand.

Question for the week: The logical conclusion from the conflicting creation accounts is that they are allegorical, and that each is intended to teach a different lesson. Having abandoned these as literal accounts of creation, is there any reason that creationism remains in conflict with evolution, etc.?


This is the twelfth in a series on Franklin’s moral improvement plan, the rest of the posts are available here.

TRANQUILLITY: Be not disturbed at trifles, or at accidents common or unavoidable.

As discussed in more than one earlier post, Epictetus is pretty much the go-to guru on not being disturbed by trifles. Did your favorite beer glass shatter when you dropped it? Hey, that’s what glass does; it breaks. You enjoyed it while you had it, but now it has just started it’s long and inevitable return to its constituent parts. Did you get splashed at the swimming pool? What did you expect? Water gets splashed around at the swimming pool, no big deal. Did your wife or child die? People are mortal; get over it.

Ok, so the death of a family member is more than a trifle. And when Epictetus compares the death of a child to the breaking of a cup, it just doesn’t ring true. Surely nobody is that stoic. At least no mentally healthy person is. (And, as I noted before, there is no reason to think that Epictetus was ever married or fathered any children. So he didn’t really know what it is like to lose a wife or child.)

Seneca, at least, admits that a certain amount of grief is appropriate in the face of death. “Let not the eyes be dry when we have lost a friend, nor let them overflow,” he writes. “We may weep, but we must not wail.” He admits that even this allowance seems harsh, but his reasoning is somewhat more compelling than that of Epictetus. To Seneca, pronounced grief is a false show of affection. Loud wailing is an outward attempt to prove one’s love. However, one can only keep up abject mourning for so long. So if the measure of one’s love for the departed is the extent of his wailing, then even the most bereaved must finally “be over” the loss. True friends, however, will measure their love, not in tears, but in happy memories. Because unlike lamentation, which must eventually exhaust itself, happy memories can go on indefinitely.

Beer of the week: Lagunitas IPA – This California/Chicago IPA is a lovely orange-gold with fluffy white foam. Although there is plenty of hops, it is not excessively bitter. This is a nice malty India pale ale with a hint of tartness in the finish.

Reading for the week: Letter LXIII to Lucilius from Seneca – Another problem that Seneca observes with abject lamentation is that it shows that the loved one was not appreciated enough during his life. It smacks of carelessness to wail over the time that one should have spent with the deceased. After all, shouldn’t we direct all of that emotion toward the friends that are still with us, lest we set up a cycle of waiting until death to give voice to our love?

Question for the week: Are you making the most of the limited time that you have with your friends and family? (Obviously not. Rather, how can you make better use of your time with your friends and family?)


This is the tenth in a series on Franklin’s moral improvement plan, the rest of the posts are available here.

MODERATION: Avoid extreams; forbear resenting injuries so much as you think they deserve.
– Franklin

As I noted in an earlier post, Sydney winters never get cold enough for a proper polar bear plunge. As a result, those who want a real winter swim have to be creative. Members of the Bondi Icebergs Club take blocks of ice with them into their beautiful tidal swimming pool. Cold water swimming is meant to be both salubrious and invigorating.

On the other temperature extreme (and on the other side of the world) are the Finns, who take great pride in their scorching hot saunas. There are even competitions (some of which end quite badly) where contestants attempt to sit in the hottest temperature for the longest period. Aside from the dangers associated with doing it competitively, the use of saunas is regarded as healthful and rejuvenating.

How does one reconcile these practices with the general proposition that extremes are harmful? The conclusion, I think, must be that extremes are not dangerous in themselves. A certain amount of extremity pushes the body (or the mind), very much in the way that physical exercise does. What is dangerous about extremes is when they cease to be extreme. Extremes are extraordinary conditions to be endured, and they should not be allowed to become ordinary.

Pop-Up IPA

Beer of the week: Pop-Up IPA – A “session” IPA is a tribute to moderation. It is a drink for those who want the flavor of an IPA without the extreme hopping or alcohol level. Unfortunately, I think that Boulevard dialed this beer back a little too much. To be sure, it is a fine beer, but the flavor is not quite as full as I would like.  Pop-Up is a cloudy session IPA with a thick, sticky head. The beer’s aroma is dominated by grassy, floral hops. The aftertaste has a hint of pepper.

Reading for the week: Tartuffe, or the Hypocrite by Molière, Act I, Scene VI – “Men,” says one character in this scene, “for the most part, are strange creatures, truly! You never find them keep the golden mean; The limits of good sense, too narrow for them, Must always be passed by, in each direction; They often spoil the noblest things, because They go too far, and push them to extremes.”

Question for the week: Are occasional extremes really good for us, or is that just a justification for indulging in extremes that ought to be avoided.

The Road to Ataraxia

This post is the first in a series of posts on skepticism (and Goose Island beer.) The rest of the posts will be available here.

There are a great number of philosophies and religions in the world. And many, if not most of them promise peace of mind for their adherents. It is a fair assumption, however, that they cannot all be right. As a result, there are those who go through life, trying on a number of different beliefs, hoping to find the one that will deliver on this promise of άταραξία – peace or tranquility.

According to Diogenes Laërtius, Pyrrho was one such intellectual searcher. He travelled extensively with the philosopher Anaxarchus. With him, he visited the Gymnosophists (“naked wise men”) of India and the Magi (holy men) of Persia. But in the end, he settled on a philosophy of skepticism. Rather than finding something to believe in, Pyrrho found peace in withholding belief in anything.

According to Sextus Empericus, the search for άταραξία is only resolved when one gives up on finding the belief that will provide it. “For that which is related of Apelles the painter happened to the Sceptic. It is said that as he was once painting a horse he wished to represent the foam of his mouth in the picture, but he could not succeed in doing so, and he gave it up and threw the sponge at the picture with which he had wiped the colors from the painting. As soon, however, as it touched the picture it produced a good copy of the foam. The Sceptics likewise hoped to gain άταραξία by forming judgments in regard to the anomaly between phenomena and the things of thought, but they were unable to do this, and so they suspended their judgment; and while their judgment was in suspension άταραξία followed, as if by chance, as the shadow follows a body.”

When one has affirmative beliefs about what is good and what is bad, he is caught in an unpleasant trap. On the one hand, he is unhappy because he is aware of all of the “good” things that he does not possess. On the other hand, he is constantly afraid of losing his “goods” and being subjected to “bad” things. Whereas the skeptic does not suffer from these envies or fears.

Perhaps the most relatable application of this philosophy is the refusal to opine as to whether death is good or bad. Most people fear death because they perceive it as a loss of the good things that they have, or as a bad in itself. Some people welcome or hope for death because they believe that death (perhaps coupled with some afterlife) is a good in itself, or a relief from the evils of life. The skeptic, unwilling to judge whether death is good or bad is ambivalent. He is at peace, precisely because he is willing to withhold his judgment about whether his station is good or bad.

The road to άταραξία, in part, is the refusal to opine about which road is best.

Goose IPA


Beer of the week: Goose IPA – Goose Island, although regarded by some as a macro-brew sell-out, does produce some pretty tasty beers. This IPA has a pretty, dark gold pour. The aroma is slightly musty with yeast and malt. It smells like the inside of a brewery. This beer is exceptionally smooth. It is also very well balanced. Goose IPA is not overly hopped and has plenty of malt flavor. It is a very enjoyable beer.

Reading of the week: Pyrrhonic Sketches by Sextus Empericus – Unfortunately, Pyrrho did not leave any writings behind. What we know of his philosophy comes primarily from these Pyrrhonic Sketches (more often translated as Outlines of Pyrrhonism.)

Question of the week: The idea that we cannot be sure of what is good and what is bad, particularly with regards to death, sounds an awful lot like stoicism. What are the principle distinctions between skepticism and stoicism?

We, the people of the Confederate States

In Flashman and the Angel of the Lord, the titular hero asks Abraham Lincoln why was it right for the thirteen colonies to secede from the British Empire, but wrong for the Southern States to secede from the Union.
“I’m astonished that a man of your worldly experience can even ask such a question,” says he. “What has ‘right’ got to do with it? The Revolution of ’76 succeeded, the recent rebellion did not, and there, as the darkie said when he’d et the melon, is an end of it.”
Fictional Lincoln, it seems, is something of a cynic.

Some “small-government” and “states’ rights” proponents are less cynical, and even defend the failed Confederate States on the grounds that the CSA were motivated by self-determination, states’ rights, and principled politics. But do the historical documents bear that out?

There are lots of apologists out there who will argue that the Civil War was really not about slavery. That the Confederate States were more interested in states’ rights, and tariffs, and minimizing the use of federal money for local infrastructure. But a careful review of the Constitution of the Confederate States of America seems to show that the political goals of the CSA really started and ended with the institution of slavery.
The CSA Constitution differs from the USA Constitution in only a few substantial ways. The most obvious, and most important, is slavery. While the USA Constitution tip-toes around the issue of slavery, only mentioning it obliquely and euphemistically, the CSA Constitution makes repeated, explicit references to slavery, including a clause preventing Congress from passing any law that would impair the right to own slaves. Another clause allows slaveholders to take their slaves into and out of any state, effectively preventing any individual state from banning slavery within its own boarders. Not exactly a blow for states’ rights.
Perhaps the most next important thing about the CSA Constitution is what did not change. The CSA Constitution copies the vast majority of its content verbatim from the US Constitution. This embraces virtually all of the powers of Congress in Article I, Section 8, including the “Commerce Clause” and the “Necessary and Proper Clause”. Those two clauses, particularly when invoked in tandem, are widely regarded as the greatest threats to limited central government. Yet the CSA had no problem handing these same federal powers to their own Congress.
It is true that there are also non-slave related changes that add color to the claim that the interest of the CSA was in limiting federal power. The preamble was changed to include “each State acting in its sovereign and independent character.” Additionally, the states retained the rights to negotiate among themselves on the regulation of their shared waterways and to tax boats that use those waterways. Further, federal money was not to be used for infrastructure improvement. But these changes do not seem like enough to justify the claim that the primary purpose was self-determination. For one thing, the preamble adds the notion that the Confederacy is intended to be “a permanent federal government,” suggesting that any future secessions from the CSA might not be regarded as rightful. And in light of the focus on slavery and the general retention of the form and powers of the federal government, it seems pretty clear what the real intention was.
It is well worth questioning the “official” versions of history, but it is a mistake for modern conservatives and libertarians to pretend that the Confederacy was a beacon for limited government and self-determination. That ignores the plain fact that the Confederacy was created explicitly for the preservation of the despicable institution of slavery, and it alienates people who should be valuable allies for personal freedom.

Slow Ride

Beer of the week: Slow Ride Session IPA – To avoid (additional) needless controversy, I have paired this reading with a beer from a Colorado, which was not yet a state during the brief existence of the CSA. New Belgium’s session IPA is quite good. My 12-pack seems to have been over carbonated;  every can foamed over when opened. Otherwise, there is nothing to complain about. The beer is a hazy orange-yellow with lots of white foam. Some yeasty aroma makes it past the strong, citrusy hops smell. The flavor is not as strong as expected, but it is nicely balanced and refreshing with a nice citrus finish. One certainly could drink this beer over the course of a long session.

Reading of the week: The Constitution of the Confederate States of America – This is the kind of thing that every middle school student in the United States should be required to read in history class. It did not even occur to me that I should read it until I was in my late twenties. It is instructive as to the causes of the Civil War, but also a useful tool for evaluating the Constitution of the United States.

Question of the week: There are some other changes worth mentioning: the CSA president would have served for 6 years with no chance for reelection. Also, all bills passed by congress would have a single purpose (eliminating omnibus bills and unrelated riders.) Finally, the president would have the power to issue line item vetoes. Are any of the changes made by the Confederates worth considering as amendments to the Constitution of the USA?

Proofs of Prophesy

It seems that primitive peoples had a god for practically every natural phenomenon. Even the culturally and academically advanced Greeks and Romans had a literal pantheon of gods to explain everything from the daily rising of the sun to the changes of the seasons. (To be sure, there were certainly ancient philosophers who did not believe in the literal existence of the Olympians. But one of the charges against Socrates was refusal to recognize the official gods of the city, so they still took that stuff seriously.) It may well be that the eventual predominance of monotheism in the western world was in part due to advances in natural philosophy.

As we humans came to understand the world better, fewer and fewer gods were needed to explain all of the individual aspects of our reality. The more we learn about the nature of our universe, the less we need myths to explain the world around us. Inevitably, some people take this line of thought to its logical limit: as human understanding increases, we find that there is no need for any theistic explanations at all.

A counter argument that has been advanced is that our growing understanding of the world is itself proof of God’s assistance. The eighth century theologian Abu Hatim al-Razi asserts that all of the great thinkers throughout time were actually prophets. Divine inspiration, he argues, is the only way to explain the genius that created Euclid’s geometry or Ptolemy’s astronomy. Knowing his own intellectual powers, he cannot believe that such tremendously insightful works can be the work of unaided humans. There is some serious appeal to that argument; I don’t see how I could ever produce something as great as Ptolemy’s Almagest.

Still, we are constantly learning more and coming to greater and greater understandings. Consequently, all great geniuses in natural philosophy are doomed to be overtaken. In the face of non-Euclidean geometry and modern astronomy, Euclid and Ptolemy look like poor prophets indeed. What good are is the prophets Newton or Darwin if their systems are sure to be found defective down the line? Can it really be divine inspiration if it invariably comes up short of later human understanding?

The final rejoinder must be that prophets never tell the whole truth or explain everything clearly. Each generation must have its own sages and prophets to build upon the divine revelations of their predecessors.  So who can say that Lobachevsky or Stephen Hawking are not also divinely inspired?


Beer of the Week: Odyssey Imperial IPA – Throughout Homer’s Odyssey, storms, shipwrecks, deaths, and other events are attributed to the wills of the gods. So a beer called Odyssey seems like a good choice for this post. This Imperial IPA from Sly Fox Brewing Company is delicious. The lighting in this photo is a bit off; the beer is actually more amber in color. It has a nice thick head that leaves plenty of lacing on the glass. Odyssey is quite bold, with strong, flavorful hops that totally dominate the flavor. And the hops has to be strong to cover the 8.4% alcohol. Anybody who drinks enough of this beer is surely in for an adventure.

Reading for the Week: The Madman by Friedrich Nietzsche – The famous quote “God is dead” comes from this reading. This parable(?) from The Gay Science hints at the problems of a post-religious society. The atheists in the story do not understand the ramifications of the death of God, hence the messenger of God’s death is called “the madman.”

Question for the week: Is there anything compelling about Abu Hatim al-Razi argument that all of our geniuses are divinely inspired? Or is he just moving the goalposts?