The Death of Stanford Federalist Rant
For those non-SLS students, Federalist rant was the biggest law school listserve for debate at the law school. The problem was that too many people were debating too many things, leading to everybody's inbox getting clogged. To fix the problem, Ying announced, as Fed Society president, that henceforth, only federalists were to post - if a liberal posted they would be unsubscribed. Ying justified this policy on the grounds that Federalist Society Members need their own sanctuary from liberalism, and the sanctuary had been taken over.
I think this is myopic.
1) If you have lemons make lemonade. We had the best discussion forum at the law school, and now its dead.
2) Federalist Rant was one of the few forums that allowed conservatives to be taken seriously by liberals. By controlling the forum, we had an advantage, which cannot be replaced by law-talk (another list-serve, controlled by the law school, which has been proposed as a replacement for Fed-Rant)
3) Federalsit Society could have easily have created a seperate list for all of us die hard federalists who can't bear to debate liberals.
4) Banning liberals makes us look like fascists who are afraid of opposing views. Oops, my bad. It reveals us to be fascists.
5) The true problem was not too many liberals, it was too much mail. The solution should have been not to ban one side of the debate wholesale, but rather to temporarily ban any poster to an overactive thread who didn't move their conversation to private email.
Well, that's that. I got some mourning to do with respect to my recently departed relationship with Tai, so peace.
Tuesday, February 10, 2004
Monday, February 09, 2004
Sunday, February 08, 2004
Clevenger Responds to some criticism
I am posting Clev's responses to some criticism for him. Bear in mind that I personally do not agree with him at all on this issue.
I'm jeopardizing my legal practice toget your questions answered. If it sounds like I'm free associating here, it's because I'm trying to deal with about a dozen points...
(A) INTRO
For those who receive most of their information via the networks and AP, I suggest perusing [this] website . (I don't find the Richard Chamberlain story particularly enlightening, but you'll find material on subjects such as whether or not homosexuality is genetic.) NARTH is a group of dissident mental health professionals who believe homosexuality can be treated.
(B) IS HOMOSEXUALITY SELF-DESTRUCTIVE?
You can find an excellent summary, written by an internist, at this site: Here are a couple of examples (not necessarily from the URL above):
(1) A condition commonly referred to as "gay bowel disease" results from semen penetrating the walls of the intestine and reaking havoc on the immune system (the condition can occur in women who engage in sodomy with a male partner). The intestinal walls, unlike the surrounding tissue of the vagina, are not designed to protect against such penetration (no pun intended).
(2) The incidence of suicide, depression, and substance abuse is substantially higher among homosexuals than the public at large. While gay activists often attribute this to public aversion to homosexuality, cross-cultural studies show that the co-morbidity of homosexuality and depression, etc. is relatively constant. In studies conducted in the 70s, when homosexuality was accepted in the Netherlands but not the U.S., the degree of co-morbidity was roughly equal.
(3) A gay or bisexual male lives an average of 20 years less than a heterosexual male.
(C) WHAT DOES SELF-DESTRUCTIVENESS HAVE TO DO WITH MARRIAGE?
Like it or not, marriage in our culture is the sanctioning of a relationship. While many Americans are willing to "live and let live" on what people do sexually, most are not willing to put the state's imprimatur on all relationships. I'm in favor of drug decriminalization, for example, but that doesn't mean I want the government subsidizing cocaine production.
(D) MIKE'S JEHOVAH'S WITNESS FRIEND
I have great empathy for your friend, Mike. While I do not struggle with that issue personally, I have several Christian friends who do. And I have a struggle of my own that is, I think, somewhat analogous.
I have battled severe depression since my pre-teen years. I inhereted a tendency for depression from my father's. When combined with some unfortunate events in my childhood, my predisposition was triggered and my unpleasant journey began.
You may rightly point out that nobody wants to be depressed (and you are right), while some people may choose to accept their homosexuality. A better example might be someone who suffers from cyclothymia (or an atypical bipolar illness) and decides the hypomanic or manic states are worth the depressive states, so he/she goes off his or her meds. An individual's right to choose is, in my opinion, the most compelling and yet the most complex and troubling issue in situations such as this.
Do I think homosexual people can make a rational choice to engage in homosexual behavior? Yes. But, depending on how one defines rationality, I think people can engage in a lot of behaviors (eating too much, drinking too much, etc.) that ultimately are self-destructive.
This, of course, raises every law school professor's favorite question: where do you draw the line? On one end of the spectrum you can criminalize an activity, on the other end you can sanction and subsidize it. Marriage clearly involves sanction and subsidy (e.g. the tax code) and, as such, I conclude it should not be extended to a behavior that is self-destructive.
MISCELLANEOUS
Beastiality, necrophilia, etc... Mike, you dismiss these analogies rather blythely, but I suggest they are not so cut-and-dried as you might think. You wrote, "When a man makes love to goat -- you can't say he's not hurting anyone. I can pretty much guarantee you that goat didn't want, well, you know...." Given a choice between being barbecued and
molested, I surmise the goat chooses the latter. I'm about to get really graphic here, but I think you need to follow your logic to its end result. Remember the scene in Cuba from Godfather II (or is it III?) with the donkey and the woman? The donkey isn't getting hurt -- apparently he likes it. So who are you to say that's wrong? Likewise, and as I noted before,
some European countries have lowered the age of consent to twelve. And much of the intelligentsia there supports it. So who are you to say it's wrong to cruise for Lolita? If "traditional morality" cannot inform our modern sexual mores, the line gets very blurred indeed.
CONCLUSION
Elliot, feel free to cut and paste this to the blog. I've got to get back to work.
THE END
I am posting Clev's responses to some criticism for him. Bear in mind that I personally do not agree with him at all on this issue.
I'm jeopardizing my legal practice toget your questions answered. If it sounds like I'm free associating here, it's because I'm trying to deal with about a dozen points...
(A) INTRO
For those who receive most of their information via the networks and AP, I suggest perusing [this] website . (I don't find the Richard Chamberlain story particularly enlightening, but you'll find material on subjects such as whether or not homosexuality is genetic.) NARTH is a group of dissident mental health professionals who believe homosexuality can be treated.
(B) IS HOMOSEXUALITY SELF-DESTRUCTIVE?
You can find an excellent summary, written by an internist, at this site: Here are a couple of examples (not necessarily from the URL above):
(1) A condition commonly referred to as "gay bowel disease" results from semen penetrating the walls of the intestine and reaking havoc on the immune system (the condition can occur in women who engage in sodomy with a male partner). The intestinal walls, unlike the surrounding tissue of the vagina, are not designed to protect against such penetration (no pun intended).
(2) The incidence of suicide, depression, and substance abuse is substantially higher among homosexuals than the public at large. While gay activists often attribute this to public aversion to homosexuality, cross-cultural studies show that the co-morbidity of homosexuality and depression, etc. is relatively constant. In studies conducted in the 70s, when homosexuality was accepted in the Netherlands but not the U.S., the degree of co-morbidity was roughly equal.
(3) A gay or bisexual male lives an average of 20 years less than a heterosexual male.
(C) WHAT DOES SELF-DESTRUCTIVENESS HAVE TO DO WITH MARRIAGE?
Like it or not, marriage in our culture is the sanctioning of a relationship. While many Americans are willing to "live and let live" on what people do sexually, most are not willing to put the state's imprimatur on all relationships. I'm in favor of drug decriminalization, for example, but that doesn't mean I want the government subsidizing cocaine production.
(D) MIKE'S JEHOVAH'S WITNESS FRIEND
I have great empathy for your friend, Mike. While I do not struggle with that issue personally, I have several Christian friends who do. And I have a struggle of my own that is, I think, somewhat analogous.
I have battled severe depression since my pre-teen years. I inhereted a tendency for depression from my father's. When combined with some unfortunate events in my childhood, my predisposition was triggered and my unpleasant journey began.
You may rightly point out that nobody wants to be depressed (and you are right), while some people may choose to accept their homosexuality. A better example might be someone who suffers from cyclothymia (or an atypical bipolar illness) and decides the hypomanic or manic states are worth the depressive states, so he/she goes off his or her meds. An individual's right to choose is, in my opinion, the most compelling and yet the most complex and troubling issue in situations such as this.
Do I think homosexual people can make a rational choice to engage in homosexual behavior? Yes. But, depending on how one defines rationality, I think people can engage in a lot of behaviors (eating too much, drinking too much, etc.) that ultimately are self-destructive.
This, of course, raises every law school professor's favorite question: where do you draw the line? On one end of the spectrum you can criminalize an activity, on the other end you can sanction and subsidize it. Marriage clearly involves sanction and subsidy (e.g. the tax code) and, as such, I conclude it should not be extended to a behavior that is self-destructive.
MISCELLANEOUS
Beastiality, necrophilia, etc... Mike, you dismiss these analogies rather blythely, but I suggest they are not so cut-and-dried as you might think. You wrote, "When a man makes love to goat -- you can't say he's not hurting anyone. I can pretty much guarantee you that goat didn't want, well, you know...." Given a choice between being barbecued and
molested, I surmise the goat chooses the latter. I'm about to get really graphic here, but I think you need to follow your logic to its end result. Remember the scene in Cuba from Godfather II (or is it III?) with the donkey and the woman? The donkey isn't getting hurt -- apparently he likes it. So who are you to say that's wrong? Likewise, and as I noted before,
some European countries have lowered the age of consent to twelve. And much of the intelligentsia there supports it. So who are you to say it's wrong to cruise for Lolita? If "traditional morality" cannot inform our modern sexual mores, the line gets very blurred indeed.
CONCLUSION
Elliot, feel free to cut and paste this to the blog. I've got to get back to work.
THE END
Saturday, February 07, 2004
According to a Classmate, I am unqualified to talk about race because I am "White"
I had a long conversation with one of my classmates this week which turned on the question of why there is racism against african americans. My classmate, who I'll call E is black herself, argued that all current racism stems from historical discrimination. In her opinion this racism has caused African Americans to hate white people, a hatred she feels could itself be termed as "racism" (E said not all of her african american classmates share this view, believing instead that african americans are definitively incapable of being racist, an idea both of us found anathema)
My question to her was that if she took it as a given that "white" racism against "blacks" engenders "black" racism against "whites" then wouldn't it be likely that "black" racism against "whites" engenders "white" racism against "blacks?" E's response was that I should be careful not to look at things in such a way since an idea like that coming from a "white" person was likely to offend minorities.
Keep in mind this is one of the more open minded people at Stanford Law School. What does this say about the climate at our institutions? I was shocked at first, but right now I am disgusted. What gives African Americans the exclusive right to determine what is appropriate to talk about with respect to racism? And why do people buy into it?
I had a long conversation with one of my classmates this week which turned on the question of why there is racism against african americans. My classmate, who I'll call E is black herself, argued that all current racism stems from historical discrimination. In her opinion this racism has caused African Americans to hate white people, a hatred she feels could itself be termed as "racism" (E said not all of her african american classmates share this view, believing instead that african americans are definitively incapable of being racist, an idea both of us found anathema)
My question to her was that if she took it as a given that "white" racism against "blacks" engenders "black" racism against "whites" then wouldn't it be likely that "black" racism against "whites" engenders "white" racism against "blacks?" E's response was that I should be careful not to look at things in such a way since an idea like that coming from a "white" person was likely to offend minorities.
Keep in mind this is one of the more open minded people at Stanford Law School. What does this say about the climate at our institutions? I was shocked at first, but right now I am disgusted. What gives African Americans the exclusive right to determine what is appropriate to talk about with respect to racism? And why do people buy into it?
Friday, February 06, 2004
The Secret to Happiness?
Flow: The Psychology of Optimal Experience
By Mihaly Csikszentmihalyi of the University of Chicago
This is not your ordinary self-help book. Csikszentmihalyi, a psychologist, gave beepers to four thousand people across the globe. Whenever the beepers went off, the people were instructed to fill out a special worksheet asking questions about their level of happiness at that very moment. What the author found was that happiness is determined not so much by who you are or what you have, but by the activities that you do everyday. Specifically, Csikszentmihalyi determined that people are happiest when they enter a scientifically identifiable psychological state he calls “flow”—something akin to the “runner’s high” that marathoners often talk about.
The most important revelation in the book is the idea that we can all achieve flow, and personal happiness, by doing activities that meet certain concrete requirements. Flow activities are activities that are not too difficult, but not too easy. They are activities with a lot of feedback, and the more the better (according to the author, surgery is the most flow-creating profession because surgeons can physically see from moment to moment whether they are doing a good job). They are activities that are meaningful to the subject—activities that act as their own reward and are done for the sheer enjoyment of doing them rather than for extrinsic reasons, such as money, respect or attention. They tend to be activities that give us a sense of “upgrading ourselves,” activities that make us stronger, faster, smarter, more sophisticated, more skilled, etc.
Examples of potential flow activities are reading, music, art, exercise, sports, meditation, video games, gambling, sex, and many others. In fact, almost anything can be turned into a flow activity if it can be modified to fit Csikszentmihalyi’s criteria. The author includes a chapter discussing many common flow activities and giving tips on how they can be adjusted to increase flow.
Interestingly, work is the most common flow-creating activity in America (a little over 50% of Americans get flow feelings from work). This is not to say that work is the best flow activity; it just reflects the fact that outside of work most of us have discovered very few sources of flow. We come home and plop in front of the TV, the ultimate flow-killer (TV is almost completely incapable of producing flow because it is passive, non-challenging, has no feedback mechanism, and generally doesn’t have the potential to give the individual the feeling that he is upgrading himself in any way). That is, even in this day and age, we are still too damn ignorant to figure out how to transform our free time into happiness. Perhaps that is why we undervalue our free time and retreat ever deeper into workaholism.
The implications of the author’s thesis are almost without bound. Although he only hints at it, Csikszentmihalyi obviously thinks that society should be structured so as to maximize flow in as many individuals as possible. The problem is that current thinking tends to emphasize the maximization of wealth irrespective of the consequences for flow. This is funny, because for years empirical studies have shown that, with the exception of the abjectly poor, there is no correlation between material well-being and personal happiness. Yet still the churning meathead mob led by demagogues like Dick Posner continues to rattle on about “the greatest good for the greatest number” without ever bothering to inquire into what that phrase really means—flow, not wealth!
Humbug.
Flow: The Psychology of Optimal Experience
By Mihaly Csikszentmihalyi of the University of Chicago
This is not your ordinary self-help book. Csikszentmihalyi, a psychologist, gave beepers to four thousand people across the globe. Whenever the beepers went off, the people were instructed to fill out a special worksheet asking questions about their level of happiness at that very moment. What the author found was that happiness is determined not so much by who you are or what you have, but by the activities that you do everyday. Specifically, Csikszentmihalyi determined that people are happiest when they enter a scientifically identifiable psychological state he calls “flow”—something akin to the “runner’s high” that marathoners often talk about.
The most important revelation in the book is the idea that we can all achieve flow, and personal happiness, by doing activities that meet certain concrete requirements. Flow activities are activities that are not too difficult, but not too easy. They are activities with a lot of feedback, and the more the better (according to the author, surgery is the most flow-creating profession because surgeons can physically see from moment to moment whether they are doing a good job). They are activities that are meaningful to the subject—activities that act as their own reward and are done for the sheer enjoyment of doing them rather than for extrinsic reasons, such as money, respect or attention. They tend to be activities that give us a sense of “upgrading ourselves,” activities that make us stronger, faster, smarter, more sophisticated, more skilled, etc.
Examples of potential flow activities are reading, music, art, exercise, sports, meditation, video games, gambling, sex, and many others. In fact, almost anything can be turned into a flow activity if it can be modified to fit Csikszentmihalyi’s criteria. The author includes a chapter discussing many common flow activities and giving tips on how they can be adjusted to increase flow.
Interestingly, work is the most common flow-creating activity in America (a little over 50% of Americans get flow feelings from work). This is not to say that work is the best flow activity; it just reflects the fact that outside of work most of us have discovered very few sources of flow. We come home and plop in front of the TV, the ultimate flow-killer (TV is almost completely incapable of producing flow because it is passive, non-challenging, has no feedback mechanism, and generally doesn’t have the potential to give the individual the feeling that he is upgrading himself in any way). That is, even in this day and age, we are still too damn ignorant to figure out how to transform our free time into happiness. Perhaps that is why we undervalue our free time and retreat ever deeper into workaholism.
The implications of the author’s thesis are almost without bound. Although he only hints at it, Csikszentmihalyi obviously thinks that society should be structured so as to maximize flow in as many individuals as possible. The problem is that current thinking tends to emphasize the maximization of wealth irrespective of the consequences for flow. This is funny, because for years empirical studies have shown that, with the exception of the abjectly poor, there is no correlation between material well-being and personal happiness. Yet still the churning meathead mob led by demagogues like Dick Posner continues to rattle on about “the greatest good for the greatest number” without ever bothering to inquire into what that phrase really means—flow, not wealth!
Humbug.
Thursday, February 05, 2004
Gays, Gnats, and Camels
I’m beginning to think that the Republicans’ approach to the “gay marriage” issue in Massachusetts is all wrong. Thus far the President and GOP leaders have focused on amending the U.S. Constitution to prohibit gay marriage. Otherwise, the argument goes, the Full Faith and Credit Clause of the Constitution would force all states to recognize a gay marriage that was ordained by Massachusetts.
That’s probably right, but it seems to me the Republicans are, to borrow a Biblical phrase, straining at a gnat and swallowing a camel. Rather than amend the Constitution (no small task), I wonder if the GOP could use what’s already in the Constitution, namely Article IV, Section 4, to deal with both gay marriage in Massachusetts (gnat, though admittedly I think it’s a pretty big gnat) and the judicial tyranny (camel) that begat it.
For those who don’t spend much time reading the actual text of the Constitution (that would include most constitutional law professors and most of the justices of the U.S. Supreme Court), Article IV, Section 4 reads as follows: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
What, you ask, does Article IV have to do with gay marriage? Stay with me for a minute. In Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003), the Massachusetts Supreme Judicial Court first received divine revelation that the state constitution guarantees homosexuals the right to marry (never mind that nobody had discovered that right during the 223 years since the state constitution had been written). But the court didn’t stop there: it ordered the legislature to change the state’s laws within 180 days. Then, in its Feb. 4, 2004 “Opinions of the Justices to the Senate”, the court detailed the parameters of the law that the legislature must pass.
Again, you ask, what does this have to do with Article IV? The issue is whether the separation of powers doctrine is so necessary to a “Republican Form of Government” at the state level that the federal government is obligated to protect it.
One might argue that judicial usurpation has been going on at the federal level since Earl Warren was chief justice (and one would be right), thus the federal government has no business intervening to prevent judicial usurpation at the state level. But there’s a big difference between a court that fabricates law (a la Roe v. Wade) and a court that orders an elected legislature to adopt laws to its liking. And the Massachusetts court is not alone in such tyranny. In Guinn v. Legislature of Nevada, 76 P.3d 22, the Nevada Supreme Court effectively ordered the legislature to ignore the state constitution and pass a tax increase to fund schools.
So what can be done about it? I once asked Professor William Cohen, my constitutional law professor at Stanford, if Article IV, Section 4 had ever been cited in a judicial opinion. He looked puzzled for a moment, then said he couldn’t recall that it ever had – nor was he sure how it was intended to be enforced.
I think I have at least some idea. If Castro invades Florida and takes over the state legislature, then Congress can declare war and throw him out. That much is obvious, as is the case of a home-grown despot taking over the legislature by force. The trickier question is whether Congress can legislatively declare that a state supreme court has so overstepped its bounds that it has compromised the state’s “Republican Form of Government.”
That opens its own can of worms. But perhaps Congress could, at the very least, declare that no state court shall have power to prescribe the acts of the state legislature. Maybe that’s a tautology but, to hear liberals describe it, so is the Tenth Amendment.
I’m beginning to think that the Republicans’ approach to the “gay marriage” issue in Massachusetts is all wrong. Thus far the President and GOP leaders have focused on amending the U.S. Constitution to prohibit gay marriage. Otherwise, the argument goes, the Full Faith and Credit Clause of the Constitution would force all states to recognize a gay marriage that was ordained by Massachusetts.
That’s probably right, but it seems to me the Republicans are, to borrow a Biblical phrase, straining at a gnat and swallowing a camel. Rather than amend the Constitution (no small task), I wonder if the GOP could use what’s already in the Constitution, namely Article IV, Section 4, to deal with both gay marriage in Massachusetts (gnat, though admittedly I think it’s a pretty big gnat) and the judicial tyranny (camel) that begat it.
For those who don’t spend much time reading the actual text of the Constitution (that would include most constitutional law professors and most of the justices of the U.S. Supreme Court), Article IV, Section 4 reads as follows: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
What, you ask, does Article IV have to do with gay marriage? Stay with me for a minute. In Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003), the Massachusetts Supreme Judicial Court first received divine revelation that the state constitution guarantees homosexuals the right to marry (never mind that nobody had discovered that right during the 223 years since the state constitution had been written). But the court didn’t stop there: it ordered the legislature to change the state’s laws within 180 days. Then, in its Feb. 4, 2004 “Opinions of the Justices to the Senate”, the court detailed the parameters of the law that the legislature must pass.
Again, you ask, what does this have to do with Article IV? The issue is whether the separation of powers doctrine is so necessary to a “Republican Form of Government” at the state level that the federal government is obligated to protect it.
One might argue that judicial usurpation has been going on at the federal level since Earl Warren was chief justice (and one would be right), thus the federal government has no business intervening to prevent judicial usurpation at the state level. But there’s a big difference between a court that fabricates law (a la Roe v. Wade) and a court that orders an elected legislature to adopt laws to its liking. And the Massachusetts court is not alone in such tyranny. In Guinn v. Legislature of Nevada, 76 P.3d 22, the Nevada Supreme Court effectively ordered the legislature to ignore the state constitution and pass a tax increase to fund schools.
So what can be done about it? I once asked Professor William Cohen, my constitutional law professor at Stanford, if Article IV, Section 4 had ever been cited in a judicial opinion. He looked puzzled for a moment, then said he couldn’t recall that it ever had – nor was he sure how it was intended to be enforced.
I think I have at least some idea. If Castro invades Florida and takes over the state legislature, then Congress can declare war and throw him out. That much is obvious, as is the case of a home-grown despot taking over the legislature by force. The trickier question is whether Congress can legislatively declare that a state supreme court has so overstepped its bounds that it has compromised the state’s “Republican Form of Government.”
That opens its own can of worms. But perhaps Congress could, at the very least, declare that no state court shall have power to prescribe the acts of the state legislature. Maybe that’s a tautology but, to hear liberals describe it, so is the Tenth Amendment.
The Evidence Against Iran
Insight Magazine has an excellent article on the evidence of Iran's support for terrorism and the U.S. government's efforts to keep it out of the spotlight. As the article itself notes, it makes you wonder whether we have more evidence justifying an attack on Iran than we did against Iraq.
Insight Magazine has an excellent article on the evidence of Iran's support for terrorism and the U.S. government's efforts to keep it out of the spotlight. As the article itself notes, it makes you wonder whether we have more evidence justifying an attack on Iran than we did against Iraq.
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