This is the nineteenth in a series on The Harvard Classics; the rest of the posts are available here. Volume IXX: Faust Egmont, Etc., Goethe, Doctor Faustus, Marlow
The First Amendment to the United States Constitution states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
In that one sentence, the framers memorialized several of the “inalienable rights” central to the premise of the Declaration of Independence and the founding of the nation. Yet, despite how concise the amendment is, people seem constantly to misapprehend its significance. Here are a couple of critical points where people are often mistaken.
1. The amendment only applies to government action. People constantly confuse their right to free speech with a right to be free from the private consequences of that speech. A speech code by a company or private school is not subject to First Amendment analysis. Likewise, a private club may have religious requirements that a government actor may not.
2. That doesn’t mean that other laws do not matter. Some people on the internet hold the idea that “the First Amendment stops the government from infringing on your free speech, but it doesn’t stop me from punching you in the mouth.” Although that statement is technically accurate, punching somebody in the mouth violates laws independent of the First Amendment. Additionally, civil rights laws, government licensing requirements, and so forth may create obligations for private individuals or companies not to discriminate based on the exercise of certain First Amendment rights.
3. The amendment applies to all government action, not just the federal government. The plain of the first amendment states that “Congress shall pass no law…”; it does not mention state governments. However, a long series of Supreme Court cases has established that the First Amendment (and most of the rest of the Bill of Rights) applies to state action through the “incorporation doctrine”. Even so, the First Amendment is probably redundant in most cases. Each state has its own constitution, and each state constitution includes free speech clause. The New York Court of Appeals, for example, has held that the free speech clause of the New York Constitution provides a greater level of protection than the First Amendment.
4. “Speech” consists of a lot more than just talking. Supreme Court cases have held that the First Amendment’s speech clause protects “expressive conduct.” That can mean a wide range of actions, including burning the American flag, nude dancing, remaining silent, or cross burning.
5. The amendment is especially important because it protects those without political clout. As a practical matter, no government would ever need to be restrained from punishing pro-government speech. Likewise, statements that everybody agrees with are under no threat of suppression. It is the provocative, the unpopular, the revolutionary that needs to be protected. Minority religious groups and others who are heterodox in the myriad ways that people may stray from conventional norms are the people who have the most to fear from popular government, and the most need for an amendment that protects, above all, the freedom of the mind.
Beer of the week: Primus – This week’s reading is set in what is now Belgium, with the principle action taking place in Brussels. So despite the constant references to “Netherlands” and “Netherlanders”, the play is best paired with Belgian beer. Primus is a “premium lager” from Haacht Brewery in Flanders, Belgium. It is a standard European lager; it looks good, smells good, and tastes good. It is a well-balanced, if unexceptional, beer.
Reading of the week: Egmont by Johann Wolfgang von Goethe – In this scene, we learn that the Spanish governor of the Netherlands, the Duke of Alba, “published a decree, by which two or three, found conversing together in the streets, are without trial, declared guilty of high treason.” He also prohibited discussion on affairs of state and made criticism of the government a capital offense.
Question for the week: How many rights are in the First Amendment?
This is the fourteenth in a series on The Harvard Classics; the rest of the posts are available here. Volume XIV: Don Quixote, Cervantes
In the preface to A Connecticut Yankee in King Arthur’s Court, Mark Twain does not profess to know the laws or customs of Arthurian England. However, he asserts that whatever the laws and customs were in the sixth century, they must necessarily have been worse than those that exist today. “One is quite justified in inferring that whatever one of these [modern] laws or customs was lacking in that remote time, its place was competently filled by a worse one.” Society, he seems to say, necessarily improves over time.
This idea is seconded by the title character Hank Morgan. Hank finds the people of sixth century England to be boorish, gullible, superstitious, and stupid. (Even, we must take it, when compared to the people of nineteenth century Connecticut.) He reports that among the knights of the round table, there were not enough brains to bait a fish-hook. Society must have come a long way indeed if the cream of medieval society were so much dumber than people today.
As to Twain’s apparent belief in the perpetual progress of society, Don Quixote de La Mancha would certainly disagree. Don Quixote perceived that society had declined since the time of Arthur rather than progressed. The time of knights-errant was an era of men who were brave and true, and faithful to their lovers and their God. Since that time, however, society generally descended cockering and excess. How can society as a whole be better off when the upstanding knights-errant have been replaced by people soft, indulgent, and deceitful?
And as to Hank Morgan’s claim that people are smarter now, he seems to confuse intelligence with knowledge. He thinks that because he knows the formula for gun powder and the dates of certain eclipses, he is more intelligent than those who lack that specific knowledge. But it is foolish to conflate the possession of certain facts with total intellectual capacity. (And it should not be taken for granted that memorizing the dates of celestial events at least back to the sixth century is a sign of intelligence rather than a sign of unhealthy fixation.) If Hank Morgan is smarter than King Arthur because he can build a lightning rod, is he also smarter than Newton, Galileo, or Aristotle for the same reason?
At any rate Twain hints that Hank himself is not as smart as he thinks. Hank fancies himself something of a connoisseur of chromolithographs, an popular form of colored print. But Hank is quite critical of a “new artist” called Raphael who did a number of well-circulated chromos, clearly unaware that the prints are copies of Raphael’s paintings and that the artist lived and died more than 300 years earlier.
Beer of the week: Supper Club – This lager from Wisconsin’s Capital Brewing Company is slightly hazy, with a nice malty flavor and aroma. It is not very hopped, just a pleasant, bready lager. There is something to be said for simple, grain-heavy midwestern fare.
Reading of the week: Don Quixote by Miguel de Cervantes – In this passage, our hero explains to some fellow travelers what it is to be a knight-errant. They, of course, perceive him to be insane. (As an interesting aside, this translation uses the archaic adjective “wood” meaning “insane.” Coincidently, near the beginning of A Connecticut Yankee, the narrator reads an old tale about Sir Lancelot in which a giant, terrified by the brave knight “ran away as he were wood.” Twain includes a note explaining that “wood” means “demented”.)
Question for the week: Does human society have a generally upward trajectory? Or generally downward? Or is there any discernible trend at all?
This is the tenth in a series on The Harvard Classics; the rest of the posts are available here. Volume X: Wealth of Nations
A popular measure of the quality of an individual judge or an entire court system is the speed with which cases are disposed. Where accused criminals must wait in jail for extended periods before their cases are tried, or where civil litigants cannot get finality on their claims in a timely manner, there is a problem. In the words of William Penn, “to delay Justice is Injustice.” And “delays have been more injurious than direct Injustice.”
Adam Smith, in his Wealth of Nations, even recommended a system whereby judges would be paid only at the conclusion of each case. “By not being paid to the judges till the process was determined, [the judges’ fees] might be some incitement to the diligence of the court in examining and deciding it.”
But there is more to an efficient judiciary than disposition rate. At the extreme, a judge could summarily convict every accused without taking the time to consider the evidence. That would be a very timely method, but not a just one.
To be sure, courts should be accessible and efficient and speedy in their distribution of justice. But to judge a court entirely, or even primarily, on its disposition rate is to miss the mark. Some cases require a long, deliberate consideration. Other cases benefit from the parties having ample time to develop their theories and evidence, and to explore a negotiated resolution. Justice delayed is justice denied, but justice rushed is no justice either.
Beer of the week: Home Grown American Lager – This is a tasty brew from Victory Brewing Company in Pennsylvania. It is brewed with six varieties of hops, and they impart plenty of juicy flavor. This pours pale and cloudy lager is quite nice.
Reading of the week: Wealth of Nations by Adam Smith – Wealth of Nations is best known as a glowing recommendation of free markets. But this excerpt discusses a couple of services that, Smith argues, must be provided by the sovereign rather than the market: national defense and courts of justice.
Question of the week: Smith goes on to point out that when attorneys are paid by the page for their legal writing, they tend to “have contrived to multiply words beyond all necessity, to the corruption of the law language.” What is the best method for determining attorney’s fees?
This is the second in a series on The Harvard Classics; the rest of the posts will be available here. Volume II: Plato, Epictetus, Marcus Aurelius
The non-aggression principle (or “NAP”) is an important concept in natural rights theory and contemporary libertarian political theory. Essentially, the non-aggression principle holds that one may not forcibly interfere with another or his property. I’ve heard it expressed as: you are free to do as you like so long as you keep your fist away from my nose and your hands out of my pocket.
Wikipedia helpfully lists several other formulations over time:
“Being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.” – John Locke
“Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’, because law is often but the tyrant’s will, and always so when it violates the rights of the individual…. No man has a natural right to commit aggression on the equal rights of another, and this is all from which the laws ought to restrain him.” – Thomas Jefferson
“Every man is free to do that which he wills, provided he infringes not the equal freedom of any other man.” – Herbert Spencer
“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” – John Stuart Mill
“No one may threaten or commit violence (‘aggress’) against another man’s person or property. Violence may be employed only against the man who commits such violence; that is, only defensively against the aggressive violence of another. In short, no violence may be employed against a nonaggressor. Here is the fundamental rule from which can be deduced the entire corpus of libertarian theory.” – Murray Rothbard
Sounds pretty reasonable to me…
Beer of the week: Mastne Cieszyńskie – This is a really good Polish ale. Mastne Cieszyńskie is light brown and a little bit hazy. The smell is classic and malty with a hint of raisin. The flavor follows the aroma. This is a very enjoyable ale.
Reading for the week: Crito by Plato, 44e to 48d – The fact that Plato is in the same volume of The Harvard Classics as Epictetus and Marcus Aurelius seems to indicate the editor of the series sided with the Stoics in the ongoing battle for what school of thought gets to claim Socrates as its own. In this excerpt from Crito, the title character is trying to convince Socrates to escape from Athens, where he has been sentenced to death. In part, he argues that if Socrates choses to die when he might otherwise live, he will be committing an act of violence upon his friends and children.
Question for the week: Particularly in the the formulations by Locke and Jefferson, it is clear that the NAP relies on an underlying assumption of equality. Without that assumption, can the principle still be compelling?
If you’ve ever said to yourself, “there ought to be a law,” you should probably rethink that position.
In the first place, there probably is a law that governs whatever you are up in arms about. As I’ve noted before, there are literally so many federal criminal laws that nobody can even say for sure how many there are. And, because federal agencies have the authority to issue rules and regulations, there may be as many as 3,000 administrative regulations that carry criminal penalties. Then, of course, are the state laws. Traditionally, federal criminal law was limited to very particular sorts of crime inherently related to the federal government (counterfeiting, for example.) As a result, the vast majority of criminal laws were promulgated at the state level. The tremendous “federalization” of criminal law hardly did away with did any of the state laws (with rare exceptions of federal preemption), and so there are far more laws now than ever.
Secondly, and more importantly, even where there is not a statute that directly addresses a particular set of circumstances, existing common law still applies. Common law is court created law (or “court discovered law” if you are a serious believer in the natural law and the power of common law courts to divine the eternal precepts thereof.) Common law is developed over time by the courts relying and building upon past rulings. In the words of Montaigne, “in rolling on [laws] swell and grow greater and greater, as do our rivers.” So, for example, there may not be a statute that requires above-ground pool manufacturers to include warnings against diving, but case law almost certainly creates such a duty. Similarly, there may not be a statute or regulation preventing breakfast cereal manufacturers from putting a certain poison in their foods, but there doesn’t need to be; established negligence and products liability case law provides substantial protections for consumers.
And finally, law is quite often not the proper mechanism to achieve your (no doubt noble) aims. In the words of Jeremy Bentham, “Every act which promises to be pernicious upon the whole to the community (himself included) each individual ought to abstain from of him: but it is not every such act that the legislator ought to compel him to abstain from.” In part, law is not an adequate solution to many problems because it is always enforced by violence or the threat of violence, and that violence has its own costs.
Next time somebody says “there ought to be a law,” ask whether they are certain that there is not some statute, regulation, or common law that does not already cover the subject matter. And, regardless of whether such a law exists, ask whether there is not some better, non-legal remedy for the perceived problem.
Beer of the week: 12th of Never Ale – The idiom “on the 12th of Never” is used to express improbability. And, improbable as it may have seemed years ago, Lagunitas has been started putting their beer into cans. This, the first aluminum encased offering from Lagunitas, is a cloudy, straw-colored pale ale. There is lots of pineapplely hops, and a nicely rounded flavor. An excellent beer, even if it does come from a can.
Reading of the week: An Introduction to the Principles of Morals and Legislation by Jeremy Bentham, Chapter XVII, §1, VIII-XV – In this excerpt, Bentham opines that drunkenness and fornication are among the pernicious behaviors that laws are ill-suited to preventing. “With what chance of success, for example, would a legislator go about to extirpate drunkenness and fornication by dint of legal punishment? Not all the tortures which ingenuity could invent would compass it: and, before he had made any progress worth regarding, such a mass of evil would be produced by the punishment, as would exceed, a thousandfold, the utmost possible mischief of the offence.”
Question for the week: If you could repeal any law, what would it be?
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.”
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?
“What was I thinking?”
That rhetorical question is often used to express dismay at a lack of foresight e.g. “A while back, I passed on a chance to buy a Bitcoin at $400; what was I thinking?” Sometimes it goes to absentmindedness e.g. “I peeled a banana and accidentally threw away the banana and went to take a bite of the peel; what was I thinking?” But in both of these cases, the question is purely rhetorical because it is pretty easy to determine the thought process involved. In the Bitcoin example, the person presumably thought about the risks and advantages of buying a Bitcoin and determined that the potential upside was not worth the $400 risk. In the banana example, the person was clearly thinking about something totally unrelated to the task at hand, and mere distraction caused the errant movements.
There are times, however, when the question “what was I thinking?” is more than rhetorical, times when one honestly does not understand his own motivations. Every once in a while, we each do something that we are later unable to explain. It is occasionally impossible to determine what thought process or motivations led to the decisions made.
There appear to be multiple potential causes for such internal confusion. For one thing, not understanding one’s own motivation may be a simple failure to carefully self-evaluate. For another, there may be pre-rational motivations that get overlooked in the search for a rational explanation, such as instinct or something like it. But most likely, it seems, is the likelihood that the decision in question is the product of a great many thoughts and motivations, possibly even at odds with each other. The complicated interplay between our various desires, instincts, goals, etc. may simply be so convoluted that we are unable to untangle (or even recognize) them all.
In The Underdogs by Mariano Azuela, the motivations of the belligerents during the Mexican Revolution are explored. A rebel leader called Demetrio tells about the time that he got drunk and spit in the face of a local political boss, Señor Monico. As a result, Monico brought “the whole God-damned Federal Government” down on Demetrio, who narrowly escaped into the hills. Demetrio asserts that all he wants is “to be let alone so [he] can go home.”
His interlocutor, however, sees more in Demetrio’s motivations than Demetrio sees himself:
“It is not true that you took up arms simply because of Señor Monico. You are under arms to protest against the evils of all the caciques who are overrunning the whole nation. We are the elements of a social movement which will not rest until it has enlarged the destinies of our motherland. We are the tools Destiny makes use of to reclaim the sacred rights of the people. We are not fighting to dethrone a miserable murderer, we are fighting against tyranny itself. What moves us is what men call ideals; our action is what men call fighting for a principle. A principle! That’s why Villa and Natera and Carranza are fighting; that’s why we, every man of us, are fighting.”
This speech certainly works on Demetrio’s men, who emphatically embrace this noble characterization of their motivations despite the manifestly ignoble acts of plunder, rape, and murder in which they engage. But Demetrio’s reaction to this impassioned speech is more subdued; he orders more beer.
Beer of the week: Corona Light – A Mexican reading deserves a Mexican beer. Corona Light is clear and pale and foamy. The aroma and flavor are pretty standard macro. There is a hint of lime in the aroma, and just a trace of nuttiness in the finish. A pinch of salt brings out the lime in the flavor, which is a big improvement. Still, Corona Light; what was I thinking?
Reading of the week: The Underdogs by Mariano Azuela – The title The Underdogs (Los de Abajo in the original Spanish) refers not to the rebels, but to the common folk of Mexico. Throughout the novel, it becomes clear that the people are always oppressed, no matter which faction has the ascendency.
Question of the week: Is it really the case that some motivations cannot be discovered through self-examination? Or is it possible that we are just too afraid to look deep enough?