I'm going to repost some comments I left at Denny Burk's blog on the firing of the Christian fire chief in Atlanta:
steve hays January 9, 2015 at 10:25 pm #
In the pecking order of minority rights, white LGBT rights outrank black civil rights.
steve hays January 10, 2015 at 1:15 pm #
I’m aware of that, James. Doesn’t change the fact that when push came to shove, the feelings of offended LGBTs, including white LGBTs, trumped the rights of a black fire chief.
Keep in mind that black liberals conform their views to the white liberal establishment. Take Jesse Jackson, who used to be prolife, but renounced that as the price for upward mobility in the Democrat party.
steve hays January 11, 2015 at 12:57 pm #
It’s a tendentious redefinition of consent to imagine that handing out free literature “without the consent” of the recipient is nonconsensual. They don’t even have to read the book. Offering free literature which hasn’t been requested hardly violates the recipient’s autonomy.
steve hays January 11, 2015 at 11:12 pm #
What if “the law” in question (a local regulation) represents an unconstitutional infringement on the free speech and free exercise clauses of the First Amendment?
steve hays January 12, 2015 at 12:47 pm #
Do you have any evidence that he was “favoring” Christian employees?
There are tradeoffs in a free society. Liberals used to be champions of the First Amendment–like the late Anthony Lewis of the NYT.
Now people like you think citizens need to be bubble-wrapped to protect them from perceived “microaggressions.”
Originally, the Established Clause allowed states to have officially recognized denominations. Church services were held in Congress. Congress appropriated funds for missionary outreach to American Indians. I’m not saying if that’s good or bad. But that reflects the scope of original intent.
You’re indulging in an anachronistic interpretation of the First Amendment which would be unrecognizable to the framers and the 13 states that ratified the Bill of Rights.
steve hays January 12, 2015 at 12:58 pm #
Ryan, your argument is circular. I point out that the restrictions infringe on Constitutional civil liberties. You reply by appealing to restrictions on civil liberties. But that’s the very issue in dispute. Appealing to restrictions to justify restrictions is viciously circular. You can’t simply invoke the current status quo to defend the status quo without begging the question.
Here’s an example of how the Establish Clause allows for, as understood by the Founding Fathers:
steve hays January 12, 2015 at 9:42 pm #
I didn’t merely refer to something as Constitutional. Rehnquist gives extensive historical documentation in the opinion I linked to.
steve hays January 12, 2015 at 10:21 pm #
I was responding to you on your own terms, but you’re free to backpedal.
This is not an appeal to authority. I cited him for his documentation. Do you not know the difference between historical evidence and an argument from authority?
steve hays January 13, 2015 at 2:42 am #
I’ve read Posner. Basically, he doesn’t think the Bill of Rights has any objective meaning. It merely means whatever meaning judges assign to it.
steve hays January 13, 2015 at 12:43 pm #
Agreed. Judges like Posner can’t be trusted with power. No one elected judges to make social policy. That’s not their proper role.
It comes down to the question of whether we think the society should consist of a ruling class that plays the role of official adults, treating other citizens as minors who require parental permission for whatever they say or do. Unfortunately, there are a lot of Americans who wish to be treated like children.
steve hays January 14, 2015 at 1:06 pm #
“The Bill of Rights has no fixed meaning. It states broad aspirational principles that are often in tension with each other. It is the duty of an unelected judiciary–uninfluenced by the short-sighted prejudices of the masses–to balance out those tensions in a pragmatic way in view of our current circumstances.”
Our system of gov’t is based on popular sovereignty. The consent of the governed.
The electorate expresses its will through its chosen representatives. Duly elected lawmakers pass laws, responsive to their voting constituents.
It is the job of judges to interpret the law, consistent with legislative intent, in order to apply the law to specific cases.
It’s clear that you, by contrast, repudiate the democratic process. You disdain the consent of the governed.
The Constitution applies to the judiciary, too. It’s the Constitution that authorizes the scope of the judiciary. Judges aren’t supposed to be independent of the Constitution. They don’t have the prerogative to unilaterally rewrite our social contract.
You have a totalitarian outlook in which an unaccountable ruling class imposes social policy on everyone else.
“By your logic, we’d still have whites-only lunch counters.”
How did you derive that from the Bill of Rights?
“That’s why legal pragmatism is more likely to lead to justice than originalism.”
It isn’t the job of judges to produce (allegedly) just outcomes. That’s the job of lawmakers. Given your attitude, we might as well abolish the legislative branch.
“Pragmatism forces one to grapple with the facts.”
You operate with a naive positivism. But facts don’t tell you what is just or unjust.
“Originalism lets one ignore the facts and cloak one’s personal prejudices with the apparent aegis of history.”
You also have the naive notion that judges like Posner are exempt from personal prejudice.
“Originalism is merely the crutch of those whose views aren’t supported well by the evidentiary record, so they reach back into history to dredge up the evidence that suits their preferred policy outcomes.”
No, Originalism is based on the consent of the governed. A nation of laws rather than a ruling class that’s unanswerable to anyone else.
You’re a totalitarian, which is ironic for a professed pragmatist, Totalitarian regimes end badly.
“That’s the joy of being a pragmatism: You can approach each issue with no preferred outcome in mind except for a desire to let the evidence speak.”
If you really believe that, then you’re hopelessly naive. Evidence doesn’t distinguish just from unjust outcomes. You’re committing the naturalist fallacy of inferring ought from is.
Your pragmatism is the caboose, drawn by the choo choo train of your own unexamined prejudices.
steve hays January 11, 2015 at 9:05 pm #
Handing out a book compels no one to read it or believe it. This trivializes the notion of consent and compulsion.
Moreover, who was he discriminating against?