December 26, 2006

Official Song of the Althouse/Goldberg Diavlog.

I'm assuming you watched the whole diavlog, which they called "Solstice Edition," my second choice for a title. My first choice was "Life with Robots," but I concede that would have been unfairly skewed to my side. Since they didn't use my title, I forgot that I wanted to say this diavlog has an official song. Here it is. (Or here, for low resolution.) [Low-res recommended if you at all think you might need it!]

If you can't take the time to watch the whole diavlog -- or have trouble getting through the scary fight at the beginning (which I unleash with the innocent question, "What's the deal with the right-wing conspiracy, Jonah?") -- at least watch the part about the robots. Then enjoy the song.

ADDED: Volokh Conspirator Orin Kerr links to the diavlog and gets a discussion going about whether someone promoting federalism today needs to pay attention to the way it was used 50 years ago. (In the diavlog -- and elsewhere -- I say they do.)


Simon said...

That video completely messed up Firefox, for me -- it crashed the browser, and when the browser tries to restore the session on restart, it reloads the video and crashes it again. Bah!

Mike said...

This song is the true robot Christmas song.

Ann Althouse said...

Ack, Simon, I think that's your computer. It's fine on Foxfire (and Safari) for me. It's just a Quicktime video.

Mike said...

It was bad for me too.

Ann Althouse said...

Mike: That was great!

Ann Althouse said...

I mean Firefox.

Ann Althouse said...

It's like if there were a company called Mallowmarsh and I kept saying Marshmallow.

Mike said...

He has other great songs at Check out Skullcrusher Mountain.

Simon said...

Re your update to this post, could I ask you to clarify the point I questioned here (inter alia, "I didn't think that Ann's point was that she wanted ostentatious disclaimers [and] displays of loyalty to the principle of desegregation. I thought her point was that if you have a political philosophy which has been used in the past to justify a morally repugnant result, you need to explain why that principle is misapplied if it is taken to reach that result. That is, that you need to explain why that theory doesn't demand (and preferably, that it structurally forecloses) that unacceptable result")? That interpretation seems reasonable to me, but other commenters have construed it differently.

Re video - quite possibly. I have a theory that any band with the word "dolls" in it is very likely to be a punk band anyway, so perhaps Firefox has a new plugin that senses its users' preferences and safeguards them from exposure. ;)

Gahrie said...


I wrote quite a long post about this question on my blog this morning. In it I disagree with your position. I also make the point that if federalists have to make repudiations of the real world effects of State's Rights, surely Pro-choice advocates have some repudiating of their own to do. I also ask you a question at the end.

Meade said...

Enjoyed both videos, thanks to Mike and Ann.

On the question of robot morality: In order to be inhumane for treating my robot cruelly, wouldn't I have to make a cognitive leap from robot as an non-living machine to robot as sentient being? I realize that robot sentience is a major theme in both videos but your question to Jonah on the diavlog is earnest, right?

Am I missing some subtle (to me) humor here? At the risk that I am... I'll ask:

Why wouldn't the cruel and heartless taking out of my hostilities and frustrations on an inanimate punching bag be just as morally wrong as 'mistreating' my robot?

Ann Althouse said...

Simon: You put that very well.

Gahrie: My point is about making a persuasive argument. If you have an idea -- right, left, or wherever -- that's been used for evil purposes in the past, you need to descend from the abstract level and talk to ordinary, common sense, pragmatic people about why they should think your idea is for the good.

Federalism has an obvious problem in U.S. history, and there are many people who shun federalism because they associate it with racism. Those who don't want to talk about that are missing the chance to win support from people who are not ideologues.

With respect to abortion, I think most supporters start out wanting the concrete thing: access to abortions. Then they develop the ideas to support it. So I'm not seeing the same thing.

Meade: No. My point is that if a robot were very sophisticated, so that it seemed just like a person, mistreating it would be morally wrong, because the issue is you, not the robot. With respect to the punching bag, what if you were vividly picturing your wife's face? That would be morally wrong. Maybe you don't care much about reaching such a high level of morality, but I see a moral issue. Is it wrong to rape people in your lucid dreams? I say it is, but it's not all that bad, and it would be phenomenally evil to imprison people for doing it.

Gahrie said...


But I thought that the real world effects of an idea were more important than the motivations of the idea's supporters, and that idealogues who fail to deal with the real world effects are dangerous.

Abortion as it functions today is undeniably eugenic in nature, and many prominent supporters trumpet it as such.

JohnF said...

And your official book could be this

Ann Althouse said...

Gahrie: You're missing my point. People don't support abortion because they support an idea that leads them to it. They support abortion. They use ideas they find useful. To the extent you're charging that support for abortion is really the result of a hidden belief in eugenics, I just don't think you're right. And the observation in "Freakonomics" is by the terms of the authors freaky, that is, not the normal way people talk about such things. No one is out there in public arguing for abortion on the ground that eugenics is a good general principle.

Mortimer Brezny said...

No one is out there in public arguing for abortion on the ground that eugenics is a good general principle.

Perhaps not, because eugenics has ties to Nazism and other racist ideologies. But plenty of people believe in sterilizing retards or the mentally ill or welfare recipients. And the same proponents of abortion also tend to promote stem cell research and the use of fertility clinics, so one could argue an implicit support of eugenics is there.

I really hope you don't stop shaking your shoulders in those divalogs. I recognize that you could be joking, but I really must protest just in case you're not.

And, no, that was not a typo. You almost made Jonah cry.

Simon said...

Ann Althouse said...
"People don't support abortion because they support an idea that leads them to it. They support abortion. They use ideas they find useful."

Maybe the fact that many liberals seem incapable of grasping the premise that people can be genuinely be committed to Constitutional federalism (as opposed to normative federalism), and accept that consequences flow from that, stems from precisely this mindset on their part. We saw it just the other day: at least a couple of commenters suggested that anyone who says they want to return the abortion issue to the states is only doing so as a smokescreen to implement our dastardly agenda. Which doesn't even make sense on its own terms, but that is a familiar refrain from the left. All this talk about "ideas that lead[] [us] to" a conclusion is just a smokescreen for our agenda.

And perhaps that makes sense, if one's mindset is "I want abortion to be legal and I don't care how that's accomplished." If one believes that the end is always more important than the means, no wonder that person is going to have trouble believing me when I say that my position on Roe-Casey has nothing to do with my position on abortion. It's not just that they disagree with me, my whole way of thinking is alien to them: the idea that my position on where the decision should be taken is separate to my view on what the decision should be is incomprehensible to someone who views the term purely in terms of "I want the decision to comes out my way, and I'll use any ideas that I find useful to carry me to that result." That's almost precisely what Seth Waxman told the Supreme Court in Florida Prepaid, come to think of it.

Frankly, I find that position intellectually radioactive. One should start from principle and march thence to conclusion, not the other way around. Otherwise, you're going to end up with an inconsistent patchwork of ideas, views and rationales, whose mutual coherency and ability to co-exist will be a tenuous matter of pure luck. And in the main, it's probably going to lead to massive cognitive dissonance as the person fights to reconcile the tension between the competing rationales that they adopt to justify their views. Come to think of it, perhaps that dissonance might explain the inchoate anger that we see in the lefty blogosphere?

Simon said...

I should add, I don't mean to suggest that one must always follow principles to their logical conclusions; I noted the other day the need for a safety valve to escape from morally dubious results of application of principle. In practice, I may be a faint-hearted ideologue if I'm any kind one one.

Richard Dolan said...

It was an interesting BhTV episode. It's odd, to borrow Jonah's word, that in this post Ann invites us to focus on the "robots" part. Her main theme in the diavlog was that real-world consequences trump mere abstractions. When Jonah tried to defend the recent conference on Meyer as an intellectual exercise, Ann says (quite rightly, I think) that the conference was odd to the point of perversity in celebrating ideas that, when Meyer was pushing them, had very bad real world consequences without at least acknowledging that reality.

When the discussion turned to the robot theme, however, the issue was suddenly whether evil fantasies, having no real world consequences, nevertheless have some moral or ethical significance. Ann's doll example, along with the "dreaming about rape" concern, involved pure fantasies. The "sex with robots" thing was close, although the concern that it can be a form of marital infidelity takes it out of the realm of pure fantasy having no real world consequences (at least for married folks).

Jonah used the "robot" part of the discussion to draw a distinction between religious concepts of sin and secular concepts of morality. His point was that secular discussions are lacking even a decent vocabulary in which to frame the issues. But even viewed in a religious frame, mere fantasies are far from a central concern -- failings of the "purity of heart" variety that Jonah was talking about usually involve some element of envy, jealousy, covetousness or the like that frequently lead to real world consequences. Pure fantasies of the "doll" and "dream" examples are a bit removed even from that context. That evil fantasies can provide pleasure may suggest a concern that they too may result in real world consequences, but such psychological factors didn't seem to be the focus of Ann's concern. Instead she mentioned that evil fantasies "say something" about the subject who entertains them (rather than the subject's potential actions). It sounded like she was getting to a "purity of heart" idea, but the thought wasn't developed. From a secular perspective, that sounds like high Romanticism, all involved with sentiment and feelings but not much else.

The "robots" think didn't strike me as the most interesting part of the diavlog. Perhaps if the ideas were fleshed out more, it would have seemed less of an idle throw-away.

Anonymous said...

It seems to me that the abortion supporters mentioned by Ann, who want the concrete outcome and support any ideology necessary to get it, are in exactly the same position as the slavery/Jim Crow supporters, who wanted the concrete outcome and supported whatever ideology necessary to get it. So, there's obviously some relation. The question is, does the taint go both ways?

Frankly, it reminds me of the gun debate. Guns don't kill people, people kill people (using guns). Federalism doesn't make people separate but equal, people make people separate but equal (using federalism). In the gun context, gun proponents do acknowledge that guns can be used badly, but believe that their beneficial uses outweigh the bad. Is that the sort of acknowledgment Ann was looking for at the conference?

Gahrie said...


To the extent you're charging that support for abortion is really the result of a hidden belief in eugenics, I just don't think you're right.

Fair enough.

However, isn't that exactly what you are doing with State's Rights? You are charging that people who believe in State's Rights are assumed to have a hidden belief in segregation. Why is it fair to assume one and not the other?

I will concede that most idealogues who support abortion do not support eugenics. Why can't you concede that most idealogues that support State's Rights do not support segregation?

Ann Althouse said...

Richard: Thanks for listening to the diavlog/divalog. I wanted people to focus on the robot part so they'd appreciate the official song. Your analysis of my seeming contradiction is interesting. I do think what is in your mind matters, but it's not everything.

flenser said...


If you have an idea -- right, left, or wherever -- that's been used for evil purposes in the past, you need to descend from the abstract level and talk to ordinary, common sense, pragmatic people about why they should think your idea is for the good.

Any idea which has any practical value can be used for evil purposes. Before the concept of states rights was used to defend segregation, the Federal government defended the practice of slavery. Does this not require you to explain how a defence of a strong central government is not also an implicit defence of the very bad things that the central government has done from time to time?

A lot of bad things have been done throughout history in the name of certain ideals, be it "liberty", "equality", "social justice", or whatever else. If your criticism of states rights is applied to any ideal, and it seems it ought to be, then aren't you arguing against ideals, period?

Simon said...

Ann Althouse said "Richard: Thanks for listening to the diavlog/divalog" (emphasis added). Did you just call Jonah a woman? ;)

Simon said...

Question: if those who promote (normative) federalism must account for why their theory, properly understood, does not and cannot defend segregation, do not people who promote substantive due process have to account for why it cannot be used to reach results like Dred Scott, Lochner and Adkins?

Anonymous said...

I think you should pick a James Brown song.

He sure figured out how to have your cake and eat it too, didn't he? He "married" a young trophy wife/Golddigger a few years ago, has a son by her, and then figured out how to create 'protocol' to not give her the house.

Somewhere the 'Godfather of soul' is enjoying a good laugh right now.

John Kindley said...

"Federalism has an obvious problem in U.S. history, and there are many people who shun federalism because they associate it with racism."

I don't think this historical example can reasonably be construed as an indictment of federalism per se. The belief that it is an indictment rests on the dubious assumption that the federal government will always represent and enforce the more enlightened and beneficent view vis-a-vis the states. Just because in the particular historical instance of segregation the federal government did in fact represent and enforce the more enlightened view vis-a-vis certain states does not in any way mean that it necessarily always will. And when the federal government does impose a less enlightened position on the nation, its effects are obviously more pervasive and odious, obviating the possibility of a citizen moving to another state with more congenial laws, and precluding the knowledge to be gained by observing the diverse results of diverse laws and policies in diverse states.

The modern day example of the federal (and judicial to boot) imposition of abortion on demand unfortunately generates more heat than light on the federalism issue, because many passionately believe the federal policy to be enlightened while many passionately believe the federal policy to be barbaric, but any honest recognition of the logic of the pro-life position (even if, say, one believes that abortion is a necessary evil which for pragmatic reasons should not be outlawed) at least highlights the obvious truth that the federal government, now or in the future, very easily may impose or may be imposing something barbaric and unenlightened, with regard to abortion and related issues (e.g. infanticide) or with regard to something else. A poster on Volokh Conspiracy posted about a week ago some interesting excerpts from Mein Kampf, in which Hitler recognized that federalism was an obstacle to Nazism. We may feel that our country is not susceptible to falling under the sway of something as deranged as Nazism, but do we really want to leave so much concentrated power at the federal level, possibly to be picked up and controlled by something half as crazy? (Moreover, I would posit that given the sordidness and schizophrenia of the politics which form the "brain" of federal government, the thing itself is already half crazy and not to be wholly trusted.)

So, I really don't think the history of segregation says anything important about the inherent value of federalism. (Wouldn't it be awful if historically the segregationists had more votes in the federal government and imposed their racist policies on the rest of the nation?) The primary purpose of government, federal, government, and local, is the protection of individual liberty, and the principle of federalism is a means to that end and not an end in itself, and should not be applied blindly and dogmatically even where it doesn't serve that end. In the segregationist South the liberty of lunch counter and other property owners to be racist clashed with the liberty of black people to go anywhere white people could go, and the federal government resolved that clash in favor of the latter. There were and are serious trade-offs and dangerous slipperty slopes in that resolution, but the federal government had and has just as much of a right and responsibility to protect individual liberty as the state government has.

(Re: the slippery slopes and trade-offs: the Boy Scouts certainly should be able to preclude homosexuals from being scoutmasters; and how bad really, and how different in principle from segretated lunch counters, and how in line with our respect for diverse cultures, is it today if a particular club -- or restaurant -- wants to admit, say, only Belgians, or only black people?)

The whole historical context of the segregationist South, to my mind, justified the federal government's actions to end pervasive public and private discrimination against black people. But in general, when the proper resolution of an apparent clash of liberties is arguable and not clearly determined by the Constitution, its resolution wherever possible should be left to the states or local governments, on federalism principles.

JNoV said...

Ann --

I think you're missinvg the point about the abortion comparison. Historically, abortion (as well as contraception) was advocated by people who supported eugenics precisely because it was a means of reducing population growth among "undesirable" races, classes, etc. Margaret Sanger in particular had horribly racist, pro-eugenics views.

Does this mean that everyone who supports abortion today must explicitly disavow Sanger's views or the promotion of abortion to undesirables" in the early 20th century? No, and this is true even if there are racial disparities in abortion rates today.

Why should federalism be any different?

As for the Meyer conference, quite a few of us criticized how the rhetoric of states rights was used to defend segregation -- indeed, Meyer himself did at the time as well (as I noted in session).

[I may have more to say about the conference at a later time.]

Jonathan H. Adler

Anonymous said...

Jonathan Adler wrote:

Why should federalism be any different?

Perhaps because the primary goal of arguments supporting states' rights for over 200 years has been state support of either slavery or racial inequality until very recently. And "states rights" remains inextricably linked to "federalism," as the recent hagiographic conference celebrating Mr. Meyer's legacy amply demonstrates. Has it really ever ceased being about race, Jonathan? That's a legitimate question, under the circumstances, I think.

The eugenics aspect of the abortion movement ceased being part of the cause within a relatively short time period, and had a stake put through it by World War II.

Anonymous said...

An addendum, Johnathan:

I realize the terms changed a bit, but the original discussion really was about libertarianism, not federalism. Which reminds me, I'd really like to see a good answer to the question, "Why are the best and most vocal proponents of libertarianism almost all making their livelihoods at state-supported institutions that most consider an illegitimate function of the state in the abstract?"

Now, to me, that is a question with a high degree of relevancy to the world in which we live, and one that proponents of liberalism who derive their income almost entirely from the state should answer with a great deal of frequency, particularly when advocating the destruction of the apparatus of the state.

JNoV said...

Internet Ronin --

I don't think your claims are accurate.

Prior to the Civil War, many proponents of states' rights were abolitionists and other who opposed the fugitive slave laws. The reason excaped slaves had to flee to Canada to attain their freedom was because federal power overrode the anti-slavery preferences of free states. Dred Scott was also a horribly anti-"states' rights" position.

Has federalism ever ceased being about race? Yes. For many of us who write and research in the area, the problem of federal overreach is typified by federal regulation of local land-use, personal drug use, end-of-life decisions, and sexual mores, not efforts to enforce equal protection.

As for the Frank Meyer conference, your account is simply not accurate either -- not of the conference, nor of Meyer's views. The conference centered on Meyer's political philosophy of "fusionism" -- a blend of libertarian politics and traditionalist conservative philosophy that helped shape the post-War conservative movement. Given its historical import, it is worthy of study, even if one believes it was wrongheaded (as some at the conference did). The readings consisted of selections from Meyer's work, as well as critiques and commentary by his contemporaries and others. The aim of the conference to discuss his work, and its relevance to a free society.

One of six sessions at the conference focused on his views about federalism and separation of powers. During this session (as well as at other times during the conference), Meyer's views were challenged and critiqued. I, for one, noted that some of his views on federalsim gave comfort to the evil political agenda of segregationists. Yet Meyer also repeatedly acknowledged the "profound wrongs" suffered by African Americans in the United States and (in an essay I wish, in hindsight, I had selected for the conference) urged Congress to act on segregation, instead of leaving the question to the courts.

For those interested, I've posted on Meyer on the Volokh Conspiracy here:

And addressed his views on civil rights here:

Meyer got many things wrong, including his opposition to certain federal measures and court decisions relating to civil rights. Again, this point that was made at the conference in discussions in and out of session. It is also worth noting that Meyer was a progressive force at National Review and within the conservative movement on racial issues, and his view of civil rights issues was undoubtedly colored by his fervent anti-communism. This does not excuse his mistakes, but it may place them in perspective. At the same time, that Meyer got some important questions wrong does not make his political philosophy unworthy of discussion.

Jonathan H. Adler

Greg D said...

My point is about making a persuasive argument. If you have an idea -- right, left, or wherever -- that's been used for evil purposes in the past, you need to descend from the abstract level and talk to ordinary, common sense, pragmatic people about why they should think your idea is for the good.

If you have an idea that hasn't been used for evil in the past, then it's because the idea hasn't been around for very long. Humans, after all, can screw anything up.

In fact, to me this argument sounds like nothing more than a new version of the Ad hominem argument falacy. "The Nazis were in favor of gun control, so any gun control opponent must address that whenever they push their position." Or, to bring it in line with Ann's post: "The Jim Crow laws first disarmed black people. Therefore anyone who supports gun control must address its use by racists, and how that affects things today."

If your topic was "when it's been tried a hundred times, and failed every time, you must first show why this time is different", you'd at least have a point. But 1: there's a big difference between "failed wherever tried", and "caused evil once", and 2: if you took that seriously you'd end up gettin rid of just about every big government program, which I don't think was your goal when you started this.

Anonymous said...

I don't think your claims are accurate.

"Often wrong but never in doubt!" may be my motto, and I will readily defer to your genuine expertise in the subject as well as the mentions made of Dred Scott, etc. That said, in my admittedly casual (but reasonably extensive by non-scholar standards) readings of the history of the United States, and in particular the 19th century, I'm not convinced that states' rights was the preserve of abolitionists. After all, the epitome of states' rights was the right to secede. We fought a war over that, as I recall ;-). And enacted three amendments widely viewed then and now (I believe) as significantly enhancing federal power at the expense of states' rights, and resisted with great force well into a significant chunk of our lifetimes.

As for what did or did not happen at the conference, I was not in attendance and thus can only rely on the reports I've read, such as those from Althouse and Goldberg, and the information on the Liberty Fund website. It seems to me that your recollections about what was said in the sessions differs from those of both Althouse and Goldberg.

At the same time, that Meyer got some important questions wrong does not make his political philosophy unworthy of discussion.

Of course it doesn't. I'm sorry if you thought I implied otherwise. If those mistakes are significant enough to call into question the very foundation of his political thought, however, it does call into serious question its applicability to contemporary society. That MAY BE a question worth pursuing. It probably should have been pursued at such a conference. Maybe it was.

Anonymous said...

That last comment needed editing, and I was going to to do it. But I hit the wrong button, publish, instead. Idiots such as myself who upgraded to the "new & improved" google sign-in lost the ability to use those handy-dandy trash cans.

I'm too tired to care at this point, though ;-) so I guess I'll let it be.

Gerald Hibbs said...

On the subject of robots: we had an interesting discussion at Speculist Blog -- -- a while back that touched on this issue. There is some kind of blockage in the tubes right now or I'd give a link.

I would agree that secular thought doesn't really address this right now. After all isn't the gist of secularism: if it feels good do it?/if you aren't hurting anyone it's nobody's business? Or is that just Libertarian/libertine philosophy?

Meanwhile, Christian philosophy incorporates impure thoughts as being morally wrong and it's addressed by Jesus directly.

Let's say today you punch a wall. People would say it was stupid or pointless or self-destructive but who would chide you as being in moral error? As walls and robots are both inanimate I can't see the objection to robot mistreatment becoming widespread. Especially considering that early robots will be very non-human in appearance and functionality I think the meme that robots are property to use/abuse as you will will be ingrained early and often.

At Speculist I raised the alarm of mistreating people in a virtual world once virtual reality becomes indistinguishable from reality. It seems to me that while your virtual actions will have zero effect on anyone else that they can be tremendously harmful to your soul.

Imagine you are virtually a god to a virtual universe that you can't distinguish with your senses from reality. In your domain you enslave "humanity" and spend your time torturing people and raping children. Should someone look you directly in the eye you murder them as your subjects cheer and then prostrate themselves before you as their god. Some people will choose to literally reign in virtual hell.

No one is harmed. No one knows of your activities. In our current moral climate such things happen all the time without outrage. The whole franchise of "Grand Theft Auto" is predicated on committing immoral actions and naysayers are looked upon as prudes, Luddites, joykills, etc.

In computer role playing games (Oblivion, Neverwinter Nights, etc.) you can read in the forums how many like to put towns to the sword and all sorts of other immoral actions for fun and kicks. Should I venture in and judge such behavior I would be universally booed. As robot mistreatment will be ingrained, torture of virtual subjects is being ingrained as morally neutral as we speak.

That is our current reality and what sort of psychological damage we will see in the future and what kind of societal dysfunction it will cause I can't imagine.

Gerald Hibbs said...

Ah, sweet synchronicity. Slashdot has an illuminating post up:

Your Rights Online: Sex, Violence, Tension & Video Games

"Gamasutra has just posted an interview with author Gerard Jones, subtitled 'Sex, Violence, Tension and Comic Books,' in which the writer of 'Killing Monsters' talks about violence and games eloquently. When asked: 'What do you think it is in your work that resonates with the gaming community?', Jones comments: 'Video games have been so much under attack recently, that I think there's a certain nervousness. Most people in this business are very pleasant and non-confrontational and the fact that they are being reviled as the causes of crime, causes of violence, is disturbing. . .""

I agree that right now, at this precise moment, the arguments are overwrought. It is currently quite easy to divide a computer game from reality.

However, we are on the cusp of graphics so realistic it is like watching a DVD and your virtual victims will be capable of showing realistic emotions (though most game companies will purposely downgrade their abilities to provide completely realistic violence -- at least at first.) The future promises gaming experiences indistinguishable from reality. At that point I believe we will begin to see very serious downsides to violent "gaming."

Anonymous said...

I'm not so sure about federalism in the first place; and I think the problem is drawing a bright line (or any line) for what states should be allowed to legislate and what they should not (and the heck with the constitutional line of "everything but these few things").

Why should abortion rights devolve to states? Then laws will be radically different, and it does not seem right to me that a woman in Kentucky might serve prison time for what she could have done entirely legally in Massachusetts, if only she could afford a $1000 to travel there. Same argument for drug laws, euthanasia, or basically anything that might lead to prison or a restriction of a person's basic freedoms.

How are all people equal under the law if in one state drunk driving is punished by a fine, and a mile away across a state line it is punished by a year in prison?

With due respect to Jefferson, the constitutional views on federalism aren't just outdated, they were illogical at the start. Perhaps he knew this and it was the only compromise that would fly.

In any case, despite being a liberal democrat that would welcome a few states with more liberal laws, I would not want to sacrifice the rights of democrats stuck in red states by their inescapable life circumstances to accomplish this.

Laws whose penalties involve prison time or rights restrictions should be consistent across all states, or people are not equal under the law. States should be restricted to laws with fines, taxes, and property consequences (such as zoning, building codes, licensing and registration fees).

This does not require an expansion of big government. A central government can license the state to collect taxes for the purpose of enforcing the federal laws; so the same cops and detectives and judges will do the same jobs. You just take away the states inappropriate right to decide what constitutes rape, for example, or what constitutes assault.

Simon said...

TonyC - you, then, are in the Sandy Levinson "burn the Constitution and start from scratch" camp, then. There is room within Constitutional federalism for normative federalism questions of to what extent the Federal government should exercise its authority and thus detract from that of the states, but what you're complaining about isn't a feature of our system of government, but the system itself.

Meade said...

"...but I see a moral issue. Is it wrong to rape people in your lucid dreams? I say it is..."

What if, in your lucid dream, you are having a rape fantasy in which you are being raped, beaten, murdered, etc? That then would be just as morally wrong or, let's say, morally unsafe for your soul, right?

Your friend, Tonya, would seem to disagree:
"dream sex is the only safe sex."

Anonymous said...

Well, can't we selectively burn a few lines out of the Constitution with a magnifying glass or soldering iron or whatever?

I've got no problem with House/Senate/Presidency, Supreme Court, etc.

I just hew to Jefferson's Declaration of Independence claim that all men [people] are created equal; and I interpret that to mean equal rights under the law; and I think that federalism is hopelessly at odds with that principle.

And then in keeping with the next sentence of the Declaration, when any form of government [such as federalism] becomes destructive of these ends, it is the right of the people to alter or abolish it.

So I do not advocate burning the constitution, I advocate the position of the founding fathers. Federalism is inherently destructive of the equality of people under the law, perhaps in a way that the founding fathers could not anticipate; they could not know the effects of 200 years of freedom and secularization.

So they got one thing wrong; and we need to fix it. How hard can it be to reconcile 50 murder statutes, 50 assault statutes, 50 fraud statutes, 50 theft statutes, etc? They all read similarly anyway.

Let the 50 experiments end; we have reached consensus.

goesh said...

Substance be damned - you were concise and measured in your presentation, confident and you weren't hodge-podging around with lots of umms, ahs, you-knows and quick diversionary trips to tangent land.

Gahrie said...

Tony C:

You slept through Government in High School and PoliSci in college didn't you?

Our Founding Fathers purposefully created a Federal Republic. They knew exactly what they were doing. The very name of our country is the United States, not the American Nation. Before the travesty of the 17th Amendment, Senators represented the States, not the people.

Now it is true that our nation has been moving towards a National Democracy for the last 178 years, but a lot of us thing that is a bad thing.

Anonymous said...


I prefer rhetoric but if you wish to attack my education in the area, I will concede my postgraduate degrees are in mathematics and computer science; but in my defense I did graduate summa with a 4.0 GPA, so consider that as evidence I did not sleep through the 3 government classes.

I know what they wrote, and they got most of it correct. I am not of the automatic opinion that smart guys 200 hundreds years ago were endowed with supernatural clarity of thought. I am a scientist. It is possible they got something mostly right that has succeeded quite well. That doesn't make it perfect, and doesn't mean we should never try to improve upon it.

Simon said...

"I've got no problem with House/Senate/Presidency, Supreme Court, etc. I just hew to Jefferson's Declaration of Independence claim that all men [people] are created equal; and I interpret that to mean equal rights under the law; and I think that federalism is hopelessly at odds with that principle."

Even granting all your assumptions, arguendo, then surely if that's your paradigm, you do (or at least should) have a problem with the Senate and the Presidency. If you really think that federalism itself is at odds with "equal rights under the law" (a statement which itself begs the question of what you mean by "the" law - which law? The law of a particular state? Federal law? The law of the Constitution? The common law? God's law?), then how can you support institutions whose selection is a product of federalism? Surely, to be consistent, you would have to want to abolish the Electoral College and the Senate. In which case, you certainly have a beef with the Presidency and the Senate. You can play the the Misha Tseytlin defense, but that position ("I don't want to abolish the Senate, I just want to abolish all the distinctive features that make it 'The United States Senate' and replace it with a generic clone of the House of Representatives") is singularly useless; it demonstrates only that you have no beef with their being a unitary executive branch whose elected head is called "the President," and that you have no beef with their being a bicameral legislature, one of whose branches is called "the Senate." But that is not the same thing as having no objection to the existing institutions that we have known by those names for a little over two centuries.

Your position has nonconstitutional ramifications, too. For example, you must also have a problem with the Circuit Courts of Appeal. Dividing the nation into 11 quasi-autonomous circuits is patently at odds with your conception of all people being equal under "the" law, insofar as while the circuits may be obliged to follow Supreme Court precedent, in the absence of clear guidance from such, the circuits frequently reach different conclusions as to the meaning of federal law, some of which are harmonized, but others which are not. Right now, for example, I'm writing a note about contributory infringement of copyright by internet service providers, and it seems to me that there's a developing circuit split on how to approach the issue. Compare Ellison v. AOL, 357 F.3d 1072 (9th Cir. 2004) with In Re Aimster, 334 F.3d 643 (7th Cir. 2003). By your standard, it is a serious problem that the law is one thing if my ISP is based in the Ninth Circuit, one standard applies, and if it's based in the Seventh Circuit, another standard applies, correct? Just as you would presumably eliminate the electoral college and equal state suffrage in the Senate, to be consistent with your expressed lodestar, you presumably must demand the abolition of all intermediary appellate courts, insofar as they lead to a fracturing of the law, and therefore its unequal application.

Again, you aren't talking about burning a few lines out of the Constitution. You're talking about a wholesale liquidation of the United States of America and its replacement by a unitary state which just happens to bear the same name, governed through institutions which might happen to have the same name, but which are certainly different beasts.

Simon said...

"I know what they wrote, and they got most of it correct."

Specifically, which parts do you believe they got right?

Anonymous said...


Perhaps my use of "federalism" is confusing; I thought I made it clear my problem is with unequal laws.

I have no problem with the current constitutional setup of congressional districts, election schedules, and the "federalism" of states getting equal representation in the Senate, or with the division of duties. I like checks and balances. All that stuff is not a problem; don't throw it out. Let Congress set the budget and have hearings, let the Senate confirm the president's appointments.

As to which "law": I mean the prosaic, everyday state laws to which people are subjected. I object to posession of marijauna being a misdemeanor in one state and a prison term in another. Same thing with prostitution. I object to wildly disparate punishments for people guilty of the same crime; that is not equality under the law.

I object to acts being legal in one state and not another; because this discriminates against the poor, who cannot travel, in favor of the rich, who can. If abortions are legal in New York and illegal in Texas, rich Texans can get a legal abortion while poor ones cannot.

This does not require a big structural change in the US government. I am fine with Congress passing law, I just think that laws and punishments should be uniform nationwide. Let congress debate them, let the House and Senate introduce bills, reconcile them, let the President veto them, let the veto be overridden.

As for the selection of these bodies, no problem. That product of federalism I applaud, it doesn't produce inherent unfairness in the application of law, and it keeps large states from using law to dominate small states with different interests.

I do not have to abolish the Electoral College, either. How does that inherently create unequal punishment for those found guilty of crimes? It does not.

I am unaware of Misha Tseytlin, but for this discussion I am perfectly happy without changing a single rule of the Senate, or a single distinctive feature.

Specifically, I have NO objection to the existing institutions of national government. My problem is with STATE governments, I think the fact that prostitution in one state is legal, and in every other state is not and can lead to imprisonment, is inherently unfair to thousands of prostitutes and their clients across the country. I do not frequent prostitutes or know any; I just think they are being treated unfairly. Likewise, I am not a pot smoker and do not know any (for sure), but the fact that posession is a misdemeanor in one place and a prison sentence in another galls me, it upsets me, it angers me. The same goes for the cursory (and careless) review death penalty in Texas, versus all the states with no death penalty at all. I do not oppose the death penalty -- I find uneven application of it unjust.

But move on. I have no problem with the Circuit Courts of appeal. An heirarchy of courts is perfectly reasonable; their decisions are subject to appeals and review as they should be. That fits perfectly with my rationale; I want consistent interpretation and punishment for all crimes. What better way to organize that outcome?

If the circuits reach different conclusions, that should justify automatic appeal to the next level. If the Supremes are too busy then create more levels, I don't care.

Yes, I think it is a serious problem that the law is one thing if your ISP is based in the Ninth Circuit and another in the Seventh.

How that means I must demand the abolition of all intermediary appelate courts is beyond me. My claim is the disparity should be resolved; especially this one. Copyright applies nationally, it is infringed or it is not; it makes no logical sense to say the same act of copying infringes in one district and not another. So the Ninth and Seventh laws should be reconciled; and if they cannot do it themselves, they should be forced to submit to a higher authority that resolves the difference and imposes reconciliation and consistency.

So no, I am not talking about wholesale liquidation of the USA. I am talking about hardly any change at all, and a change entirely in keeping with the Declaration of Independence, often considered the shining beacon of our principles as a nation.

We do not keep those principles today. A big reason is because states are allowed to invent laws and draconian punishments that are applied unevenly. The constitution defers to states, probably because the colonies already had their own laws and wouldn't give them up. I don't claim this problem rises to a thousandth the magnitude of slavery, but it is rooted in the same pragmatism that prevented the prohibition of slavery in the constitution. A weakened central government with state autonomy was the only way they could cut the deal.

That doesn't make the result right or fair today.

Titus said...

Jonah Goldberg is beginning to look more and more like his mother.
You, Ann, on the other hand look absolutely fabulous!
The skin looks great and love the hair.

Gahrie said...

So no, I am not talking about wholesale liquidation of the USA. I am talking about hardly any change at all, and a change entirely in keeping with the Declaration of Independence, often considered the shining beacon of our principles as a nation.

1) You are talking about major changes, changes to the basic structure of our country. Our country was designed precisely to preserve those States Rights you seek to eliminate.

2) Our principles as a nation are contained within our Constitution, which explicitly recognizes and defends State's Rights. The Declaration is a fine document, but it has no legal or Constitutional importance.

Anonymous said...


Funny, I don't notice any objections based on the merits of whether perpetrators convicted of equal crimes should be dealt equal punishments.

I conclude that everyone is in agreement on that, since the arguments are all about how this would "change the USA".

But if we are in agreement that unequal punishment for the same crime is inherently unfair, I don't understand why you have such reverence for the infallibility of the Constitution as it stands.

It is not a holy document, pristine and never intended to be changed. Quite the opposite, according to the founders themselves.

And if we are in agreement about the main idea, and we are in agreement that the current Constitution is a good thing but impedes that main idea, then we should be in agreement that modifications to achieve uniformity of law and punishment are a desirable thing.

I don't believe the country was "designed precisely to preserve those States Rights [I] seek to eliminate."

I think the country was designed as a collection of independent colonies to fight a war of independence; and the founders quickly discovered the Articles of Confederation wasn't working as planned: For example the army couldn't be paid. In the Newburgh Conspiracy the army almost mounted a coup to get paid. These and other problems spurred the Annapolis Convention where the Articles of Confederation were gutted and the Constitution was written.

But again, this is a compromise between what is fair and what could be ratified. It took time, compromise and change to get it ratified.

It is a good document, but the population of the states is much more homogenous then it was then. It is far more mobile; and thus perceptually smaller. Nobody would consider it unusual for a middle class citizen to be in ten different states in a year; and thus subject to ten different systems of law.

Uniformity of law and punishment is an inherently good idea. If that removes a major structural beam from the USA, so be it; it was only there to aid ratification in the first place; like a temporary support beam to hold up the roof while we nail it in.

Now that the house is standing, we can let it stand on its own.

I do not believe uniformity of law and punishment would be a major change, and changing the Constitution is not an inherently bad idea.

Misha Tseytlin said...

"Misha Tseytlin" position he is referring to is from The United States Senate and the Problem of Equal State Suffrage, 94 GEO. L.J. 859 (2006).

My basic point in that article was not to abolish everything to do with the Senate that is different from the House, but abolish only the 2 Senators per state aspect. The argument is that equal state suffrage in the Senate does nothing to protect federalist limits, and simply acts to over-represent the interests (which may be pro or anti federalism) of citizens of small states. It also leads to a systematic redistribution of funds from citizens in large states to those in small states. Basically, maintaining equal state suffrage is the equivalent of giving each citizen in Wyoming a lot more voting power than each citizen in California- all without any coherent justification.

I will also note that while I have heard the charge from people that I am somehow trying to undermine the Constitution and go against the will of the founders, the most intellectually respected founders- like Madison, Hamilton and Wilson all shared my view and fought very hard at the Constitutional Convention for proportional representation in the Senate.

To respond to the charge in the above post, I would certainly keep 6 year terms for Senators (making the Senate more deliberative and giving Senators long decision horizons) and would keep the small number of Senators, which allows for intelligent and thorough debate of the issues.