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Double Jeopardy Clause of the Fifth Amendment

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Feb 052016
 

Fifth Amendment

The Fifth Amendment to the U.S. Constitution reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Bill of Rights, which consists of the first ten amendments to the U.S. Constitution, enumerates certain basic personal liberties. Laws passed by elected officials that infringe on these liberties are invalidated by the judiciary as unconstitutional. The Fifth Amendment to the Constitution, ratified in 1791, represents five distinct liberties the that Framers attempted to safeguard from majoritarian impulses: (1) the right to be indicted by an impartial Grand Jury before being tried for a federal criminal offense,(2) the right to be free from multiple prosecutions or punishments for a single criminal offense, (3) the right to remain silent when prosecuted for a criminal offense, (4) the right to have personal liberties protected by Due Process of Law, and (5) the right to receive just compensation when the government takes private property for public use.

The Framers of the Fifth Amendment intended that its provisions would apply only to the actions of the federal government. However, after the Fourteenth Amendment was ratified, most of the Fifth Amendment’s protections were made applicable to the states. Under the Incorporation Doctrine, most of the liberties set forth in the Bill of Rights were made applicable to state governments through the U.S. Supreme Court’s interpretation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. As a result, all states must provide protection against Double Jeopardy, Self-Incrimination, deprivation of due process, and government taking of private property without just compensation. The Grand Jury Clause of the Fifth Amendment has not been made applicable to state governments.

The Double Jeopardy Clause of the Fifth Amendment prohibits state and federal governments from reprosecuting for the same offense a defendant who has already been acquitted or convicted. It also prevents state and federal governments from imposing more than one punishment for the same offense.

For more than a century, courts have wrestled with the question of what constitutes an acquittal such that a person has already been placed in jeopardy for a particular offense. However, all courts agree that the Double Jeopardy Clause applies only to legal proceedings brought by state and federal governments in criminal court. It does not apply to legal proceedings instituted by purely private individuals in civil court.

The U.S. legal system has two primary divisions, criminal and civil. Criminal actions are designed to punish individuals for wrongdoing against the public order. Civil actions are designed to compensate victims with money damages for injuries suffered at the hands of another. An individual who has been acquitted in criminal court of murder can, without violating the Double Jeopardy Clause, be required in civil court to pay money damages to the family of a victim. Thus, the successive criminal and civil trials of O. J. Simpson, regarding the deaths of Nicole Brown Simpson and Ronald Goldman, did not constitute double jeopardy.

The Fifth Amendment’s prohibition against double jeopardy is rooted in Anglo-Saxon Jurisprudence. Yet, in England, the Crown sometimes ignored the right against double jeopardy. In certain important cases where an acquittal undermined royal interests, the defendant was tried again in a different manner or by a different court. The protection against double jeopardy was also extremely narrow under English Law. It applied only to capital crimes, in which the defendant would be subject to the death penalty if convicted. It did not apply to lesser offenses such as noncapital felonies and misdemeanors.

Massachusetts was the first colony that recognized a right against double jeopardy. Its colonial charter provided, “No man shall be twise [sic] sentenced by Civil Justice for one and the same Crime, offence, or Trespasse” (as quoted in United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 [1989]). This charter, which served as a model for several other colonies, expanded the protection against double jeopardy to all crimes and offenses, not just capital felonies. Nonetheless, when the Bill of Rights was ratified in 1791, the constitutions of only two states expressly afforded double jeopardy protection. Thus, when James Madison submitted his proposal for the Fifth Amendment to Congress, he wanted to be sure that the right against double jeopardy would not be abused by the government, as it had been in England, or altogether forgotten, as it had been in the constitutions of eleven states.

Although Congress and the state ratifying conventions said very little about the Fifth Amendment’s Double Jeopardy Clause, the U.S. Supreme Court has identified several concerns that the Framers were trying to address when they drafted it: (1) preventing the government from employing its superior resources to wear down and erroneously convict innocent persons; (2) protecting individuals from the financial, emotional, and social consequences of successive prosecutions; (3) preserving the finality and integrity of criminal proceedings, which would be compromised were the state allowed to arbitrarily ignore unsatisfactory outcomes; (4) restricting prosecutorial discretion over the charging process; and (5) eliminating judicial discretion to impose cumulative punishments not authorized by the legislature.

The Fifth Amendment’s right against self-incrimination permits an individual to refuse to disclose information that could be used against him or her in a criminal prosecution. The purpose of this right is to inhibit the government from compelling a confession through force, coercion, or deception. The Self-Incrimination Clause applies to any state or federal legal proceeding, whether it is civil, criminal, administrative, or judicial in nature. This privilege is frequently invoked during the trial phase of legal proceedings, where individuals are placed under oath and asked questions on the witness stand.

The privilege is also asserted with some frequency during the pretrial phase of legal proceedings. In the pretrial phase of criminal cases, it is usually asserted in response to pointed questions asked by law enforcement agents, prosecutors, and other government officials who are seeking to determine the persons responsible for a particular crime. During the pretrial phase of civil cases, parties may assert the right against self-incrimination when potentially damaging questions are posed in depositions and interrogatories.

The right against self-incrimination largely took hold in English law with the seventeenth-century trial of John Lilburne. Lilburne was a Puritan agitator who opposed British attempts to impose Anglican religious uniformity across England. In 1637, Lilburne was prosecuted for attempting to smuggle several thousand Puritan pamphlets into England. Before the Star Chamber (an English court with jurisdiction to extinguish nonconformity in the realm), Lilburne refused to take an oath requiring him to answer truthfully any question asked of him. He said that he could see that the court was trying to ensnare him, and he claimed that the law of God and the law of the land supported his right against self-accusation. Lilburne was whipped and pilloried for refusing to take the oath. Parliament later declared his punishment illegal, abolished the Star Chamber, and ultimately recognized the right against self-incrimination.

The American colonists, particularly the Puritans in Massachusetts, were familiar with the plight of Lilburne. Nonetheless, the Massachusetts Body of Liberties, a collection of rules of conduct for the Puritan colonists taken nearly verbatim from the Bible, permitted the use of torture to extract confessions from defendants who were accused of capital crimes. Many other colonies subjected political and religious dissenters to inquisitorial judicial proceedings not unlike those employed in England. In many of these proceedings, the accused persons were not entitled to remain silent but were often asked to provide evidence of their innocence. Even after the Revolution, the constitutions of four states offered no protections against self-incrimination. As Madison drafted the original version of the Fifth Amendment, the lessons of English and colonial history were firmly in his mind.

The U.S. Supreme Court has interpreted the Self-Incrimination Clause more broadly than many of the Framers probably would have. miranda v. arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), illustrates this point. In Miranda the Court held that any statements made by defendants while in police custody before trial will be inadmissible during prosecution unless the police first warn the defendants that they have (1) the right to remain silent, (2) the right to consult an attorney before being questioned by the police, (3) the right to have an attorney present during police questioning, (4) the right to a court-appointed attorney if they cannot afford one, and (5) the right to be informed that any statements they do make can and will be used in their prosecution. Although the Miranda warnings are not provided in the Fifth Amendment’s Self-Incrimination Clause, the Court has ruled that they constitute an essential part of a judicially created buffer zone that is necessary to protect rights that are specifically set forth in the Constitution.

In Dickerson v. United States 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed.2d 405 (2000), the U.S. Supreme Court concluded that the Miranda decision was based on Fifth Amendment principles and therefore that it could not be over-turned legislatively. Congressional anger at the Miranda decision had led to the passage in 1968 of a law, 18 U.S.C.A. 3501, that had restored voluntariness as the test for admitting confessions in federal court. However, the United States department of justice, under attorneys general of both major political parties, has refused to enforce the provision, believing the law to be unconstitutional. The law lay dormant until the Fourth Circuit Court of Appeals ruled in 1999 that Congress had the constitutional authority to pass the law. Chief Justice william rehnquist, a frequent critic of the Miranda decision, joined the majority in rejecting the Fourth Circuit interpretation. Although members of the Court might not agree with the reasoning and the rule of Miranda, Rehnquist acknowledged the essential place that Miranda has in U.S. law and society. He pointed out the importance that the judicial system places on Stare Decisis, a concept that counsels courts to honor judicial precedents to ensure stability and predictability in decision-making. A court should only overrule its case precedents if there is, in Rehnquist’s words, “special justification.” The Court in Dickerson concluded there were no special justifications.

Despite this decision the controversy over Miranda has not abated. In 2002 the Supreme Court took up the matter again when it reviewed Martinez v. Chavez, 270 F.3d 852 (9th Cir. 2001). The Court must decide whether the Fifth Amendment conveys a constitutional right to be free of coercive interrogation, or merely a right not to have forced confessions used against them at trial.

The Fifth Amendment’s Due Process Clause has two aspects: procedural and substantive. Procedural due process is concerned with the process by which legal proceedings are conducted. It requires that all persons who will be materially affected by a legal proceeding receive notice of its time, place, and subject matter so that they will have an adequate opportunity to prepare. It also requires that legal proceedings be conducted in a fair manner by an impartial judge who will allow the interested parties to present fully their complaints, grievances, and defenses. The Due Process Clause governs civil, criminal, and administrative proceedings from the pretrial stage through final appeal, and proceedings that produce Arbitrary or capricious results will be overturned as unconstitutional.

Substantive Due Process is concerned with the content of particular laws that are applied during legal proceedings. Before World War II, the U.S. Supreme Court relied on substantive due process to overturn legislation that infringed on a variety of property interests, including the right of employers to determine the wages their employees would be paid and the number of hours they could work. Since World War II, the Court has relied on substantive due process to protect privacy and autonomy interests of adults, including the right to use contraception and the right to have an Abortion.

The line separating procedure from substance is not always clear. For example, procedural due process guarantees criminal defendants the right to a fair trial, and substantive due process specifies that 12 jurors must return a unanimous guilty verdict before the death penalty can be imposed. The concepts of substantive and procedural due process trace back to English law. The Magna Charta provided, “No free man shall be seized, or imprisoned, or disseised, or outlawed, or exiled, or injured in any way except by the lawful judgment of his peers, or by the law of the land” (art. 39). According to eminent English jurist Sir Edward Coke, law of the land and due process of law were interchangeable terms that possessed both procedural and substantive meaning.

The American colonists followed the English tradition of attributing substantive and procedural qualities to the concepts of due process and the law of the land. Maryland and Massachusetts, for example, equated the two concepts with colonial Common Law and legislation regardless of their procedural content. On the other hand, Virginia, Pennsylvania, and Vermont all passed constitutional provisions identifying the law of the land with specific procedural safeguards, including the right against self-incrimination. Thus, when the Due Process Clause was submitted to the state conventions for ratification, it was popularly understood to place procedural requirements on legal proceedings as well as substantive limitations on the law applied in those proceedings.

When the government takes Personal Property for public use, the law calls it a taking and protects it under the eminent domain clause of the Fifth Amendment. The Eminent Domain Clause permits the government to appropriate private property, both real estate and personal belongings, for a public purpose so long as the owner receives just compensation, which is normally equated with the fair market value of the property. The Fifth Amendment attempts to strike a balance between the needs of the public and the property rights of the owner.

The power of eminent domain was first recognized in England in 1215. Article 39 of the Magna Charta read,”no free man shall be disseised [deprived] of his freehold except by the lawful judgment of his peers, or by the law of the land.” No compensation was awarded to owners whose property was taken by the government for public use. Instead, English law merely required that the government obtain ownership of private property through existing legal channels, such as parliamentary legislation. This principle was followed in England for several centuries, and was later adopted by the American colonies.

Uncompensated takings of private property by colonial governments generally involved unimproved land (i.e., land that had not been built on). Colonial governments often appropriated private land to build roads and bridges in order to develop America’s frontiers. During the American Revolution, the power of eminent domain was used to seize the land of colonists who were loyal to Great Britain, and to obtain various goods for military consumption. Compensation was rarely given to individual owners who were deprived of their property by colonial governments because making personal sacrifices for the common good, including forfeiting personal property, was considered an essential duty of every colonist.

Not everyone in the colonies believed that personal property interests should always be sacrificed for the greater good of society. Many colonists expressed distress over legislatures that were abusing their power of eminent domain. New York, for example, regularly failed to recognize title to real estate in its colony that was held by residents of Vermont. Other colonies also discriminated in favor of their own residents, and against persons whose patriotism was questionable during the Revolution. It was in this context that the Eminent Domain Clause of the Fifth Amendment was drafted.

During the twentieth century, the U.S. Supreme Court has enlarged the protection against uncompensated takings of private property by state and federal governments. The Eminent Domain Clause has been interpreted to protect not only owners whose property is physically taken by the government, but also owners whose property value is diminished as a result of government activity. Thus, compensable takings under the Fifth Amendment result from Zoning ordinances that deny property owners an economically viable use of their land (Agins v. City of Tiburon, 447 U.S. 255, 100 S. Ct. 2138, 65 L. Ed. 2d 106 [1980]), environmental regulations that require the government to occupy an owner’s land in order to monitor groundwater wells (Hendler v. United States, 952 F.2d 1364 [Fed. Cir. 1991], land-use regulations that curtail mining operations (Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322[1992]), and government-owned airports that lower property values in adjacent neighborhoods (United States v. Causby, 328 U.S. 256, 66S. Ct. 1062, 90 L. Ed. 1206 [1946]).

The U.S. Supreme Court, in Palazzolo v. Rhode Island, 533 U.S. 606, 121 S. Ct. 2448, 150L. Ed.2d 592 (2001), declared that property owners may file lawsuits without filing additional permit applications. Most importantly, the Court overturned a ruling that barred property owners from filing suit if they took possession of the property after the environmental regulations had been enacted. It made no sense to allow a state to avoid suit simply because of a transfer of legal title to the property. Thus, the state “would be allowed, in effect, to put an expiration date on the Takings Clause. This ought not to be the rule. Future generations, too, have a right to challenge unreasonable limitations on the use and value of land.”

A grand jury is a group of citizens who are summoned to criminal court by the sheriff to consider accusations and complaints leveled against persons who are suspected of engaging in criminal conduct. Grand juries do not determine guilt or innocence. Instead, they determine whether Probable Cause exists to believe that the accused has committed a crime, and they return an indictment (i.e., a formal charge against the accused) if they do find probable cause. In common law, a grand jury consisted of not fewer than 12, and not more than 23, men. Today, grand juries impaneled before a federal district court must consist of not fewer than 16, and not more than 23, men and women.

Potential jurors are usually drawn from lists of qualified residents. Persons who are below the age of majority, who have been convicted of certain crimes, who or are biased toward the accused are ineligible to serve as grand jurors.

The grand jury originated in England during the reign of henry ii (115489). In 1166, a statute called the Assize of Clarendon was enacted. The assize provided that no person could be prosecuted unless four men from each township and 12 men from each hundred appeared before the county court to accuse the individual of a specific crime. This compulsory process, called a presenting jury, foreshadowed the grand jury as an accusatory body that identified individuals for prosecution but made no finding as to guilt or innocence.

As the grand jury system developed in England and colonial America, it protected innocent persons who faced unfounded charges initiated by political, religious, and personal adversaries. The impartiality of grand juries is essential. This is a significant reason why the proceedings are convened in secrecy; otherwise, public scrutiny and similar prejudicial influences could affect their decision-making process. Although grand juries must be impartial, accused persons have no constitutional right to present evidence on their behalf or to cross-examine witnesses, and Hearsay evidence may be introduced against them.

Helmholz, R.H. 1983. “The Early History of the Grand Jury and the Canon Law.” University of Chicago Law Review 50 (spring).

Hickok, Eugene W., Jr., ed. 1991. The Bill of Rights: Original Meaning and Current Understanding. Charlottesville: Univ. Press of Virginia.

Mermelstein, Mark, and Joel M. Athey. 2002. “In the Fifth Dimension: Problems Faced by Trial Lawyers When a Witness Invokes the Fifth Amendment.” Los Angeles Lawyer 25 (October).

Roxas, Angela. 2002. “Questions Unanswered: the Fifth Amendment and Innocent Witnesses.” Journal of Criminal Law and Criminology 93 (fall).

Treanor, William M. 1995. “The Original Understanding of the Takings Clause and the Political Process.” Columbia Law Review 95 (May).

Criminal Law; Criminal Procedure; Custodial Interrogation.

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Double Jeopardy Clause of the Fifth Amendment

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Rationalism | Article about rationalism by The Free Dictionary

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Feb 022016
 

[Lat.,=belonging to reason], in philosophy, a theory that holds that reason alone, unaided by experience, can arrive at basic truth regarding the world. Associated with rationalism is the doctrine of innate ideas and the method of logically deducing truths about the world from “self-evident” premises. Rationalism is opposed to empiricism on the question of the source of knowledge and the techniques for verification of knowledge. Ren Descartes, G. W. von Leibniz, and Baruch Spinoza all represent the rationalist position, and John Locke the empirical. Immanuel Kant in his critical philosophy attempted a synthesis of these two positions. More loosely, rationalism may signify confidence in the intelligible, orderly character of the world and in the mind’s ability to discern such order. It is opposed by irrationalism, a view that either denies meaning and coherence in reality or discredits the ability of reason to discern such coherence. Irrational philosophies accordingly stress the will at the expense of reason, as exemplified in the existentialism of Jean-Paul Sartre or Karl Jaspers. In religion, rationalism is the view that recognizes as true only that content of faith that can be made to appeal to reason. In the Middle Ages the relationship of faith to reason was a fundamental concern of

).

See E. Heimann, Reason and Faith in Modern Society (1961); T. F. Torrance, God and Rationality (1971); R. L. Arrington, Rationalism, Realism, and Relativism (1989).

e.g. in

, endangered by world events as well as by sceptical movements in philosophy. However, rationalism in the sense of a belief in progress survives in a modified form in many areas of sociology and philosophy (e.g. see

). A further view is that it is a mistake to polarize rationalism and empiricism, since both of these play a role in human knowledge, which always involves both conception (rationalism) and perception (empiricism), e.g. See

. See also

.

a collective designation for the architectural schools of the first half of the 20th century that made use of the achievements of modern science and technology. In the broad sense, rationalism in architecture is sometimes equated with the concept of modern architecture, as represented by the work of L. H. Sullivan in the United States, H. P. Berlage in the Netherlands, A. Loos in Austria, the masters of the Deutscher Werkbund in Germany, and A. Perret in France.

The establishment of rationalism in the early 1920s was largely promoted by the theories propagated by the circle of architects associated with the journal LEsprit nouveau. The movements leaders were Le Corbusier in France and W. Gro-pius of the Bauhaus school of architecture in Germany.

Rationalism flourished essentially from the 1920s through the 1950s. In 1928 its supporters organized the International Congress for Modern Architecture, which met until 1959. Rationalist ideas concerning urban planning were set forth in 1933 in the Athens Charter. In the 1950s the general architectural principles of rationalism led to the creation of the international style, represented by the work of L. Mies van der Rohe and many others. The dogmatic architectural ideas and the social-reformist utopianism of the proponents of rationalism led to a crisis in the movement by the late 1950s.

The Russian architects of Asnova (Association of New Architects), including N. A. Ladovskii and K. S. Melnikov, proclaimed themselves to be rationalists. They emphasized psychological and physiological factors in the appreciation of architectural form and sought rational principles in the visual aspect of architecture.

a philosophical school that considers reason to be the foundation of human understanding and behavior. Rationalism is the opposite of fideism, irrationalism, and sensationalism (empiricism). The term rationalism has been used to designate and characterize philosophical concepts since the 19th century, but historically the rationalist tradition originated in ancient Greek philosophy. For example, Parmenides, who distinguished between the knowledge of truth (obtained through reason) and the knowledge of opinion (obtained through sensory perception), considered reason to be the criterion of truth.

Rationalism took shape in modern times as an integral system of epistemological views, as a result of the development of mathematics and the natural sciences. In contrast to medieval Scholasticism and religious dogmatism, the classical rationalism of the 17th and 18th centuries (Descartes, Spinoza, Male-branche, and Leibniz) was based on the idea of natural orderan infinite chain of causality pervading the world. Thus, the principles of rationalism were accepted by both materialists (Spinoza) and idealists (Leibniz), although the character of rationalism differed in the two philosophical trends, depending on how the question of the origin of knowledge was resolved.

The rationalism of the 17th and 18th centuries, which asserted the decisive role of reason in both human cognition and human activity, was one of the philosophical sources of the ideology of the Enlightenment. The cult of reason was also characteristic of the 18th-century French materialists, who adopted a philosophical position of materialistic sensationalism and criticized the speculative constructs of rationalism.

Seeking to substantiate the absolute reliability of the principles of science and the tenets of mathematics and the natural sciences, rationalism attempted to explain how knowledge obtained through human cognitive activity could be objective, universal, and necessary. Unlike sensationalism, rationalism maintained that scientific knowledge, which possesses these logical properties, could be attained through reason, which served as the source of knowledge and as the criterion of truth. For example, the rationalist Leibniz modified the basic thesis of sensationalism, as stated by Locke (there is nothing in reason that was not previously present in sensations) by appending to it the phrase other than reason itself. In other words, reason is capable of grasping not only the particular and the accidental, to which sensory perception is limited, but also the universal and the essential.

The concept of reason as the single source of scientific knowledge led rationalists to an idealist conclusion regarding the existence of innate ideas (Descartes) or of predispositions and inclinations in thought that are independent of sensory impressions (Leibniz). The underestimation by rationalists of the role of sensory perception, mans link with the external world, led to the separation of thought from the object of cognition.

Kant, who attempted to reconcile the ideas of rationalism and sensationalism, proposed that all our knowledge begins with the senses, passes to the faculty of understanding, and ends with reason (I. Kant, Sock, vol. 3, Moscow, 1964, p. 340). According to Kant, reason cannot serve as the universal criterion of truth. In order to explain the properties of knowledge, Kant introduced the concept of the apriority (a priori knowledge) of both conceptual forms (as in classical rationalism) and forms of contemplationspace and time. However, Kantian rationalism retains its force only at the price of adopting an agnostic positionthat is, it deals only with the world of phenomena and excludes consideration of things-in-themselves, or objective reality.

In Hegels philosophy the absolute idea, or absolute reason, is the original principle and essence of the world, and the process of cognition is viewed as the self-cognition of reason, which comprehends its own content in the world. In Hegel, therefore, the development of the objective world is represented as a purely logical, rational process, and rationalism assumes the character of panlogism.

Bourgeois philosophy of the 19th and 20th centuries (positivism and neopositivism, for example) lost faith in the unlimited power of reason. The prevailing trend in 19th- and 20th- century bourgeois philosophy is a critique of classical rationalism, with its ideals of the power of reason and mans unlimited rational activity. This critique is based either on irrationalism or on a moderate, limited rationalism. For example, Freudianism, which asserts the dominant role of irrational, subconscious elements, criticizes rationalism from the standpoint of irrationalism, as do intuitionism and existentialism. The concepts of M. Weber and K. Mannheim are representative of the critique of rationalism from the standpoint of moderate, limited rationalism, which is associated less with the logical problems of cognition and more with a search for the sociocultural bases and limits of rationalism.

The narrrow, one-sided character of rationalism was overcome in Marxism. It was possible to resolve the contradiction between empiricism and rationalism on the basis of fundamentally new principles developed in the theory of cognition of dialectical materialism. The basic condition for resolving the contradiction between empiricism and rationalism was an analysis of the process of cognition, in integral association with practical activity for transforming reality. V. I. Lenin wrote: From living perception to abstract thought, and from this to practice such is the dialectical path of the cognition of truth and the cognition of objective reality (Poln. sobr. soch., 5th ed., vol. 29, pp. 15253).

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Nihilism | Internet Encyclopedia of Philosophy

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Jan 202016
 

Nihilism is the belief that all values are baseless and that nothing can be known or communicated. It is often associated with extreme pessimism and a radical skepticism that condemns existence. A true nihilist would believe in nothing, have no loyalties, and no purpose other than, perhaps, an impulse to destroy. While few philosophers would claim to be nihilists, nihilism is most often associated with Friedrich Nietzsche who argued that its corrosive effects would eventually destroy all moral, religious, and metaphysical convictions and precipitate the greatest crisis in human history. In the 20th century, nihilistic themes–epistemological failure, value destruction, and cosmic purposelessness–have preoccupied artists, social critics, and philosophers. Mid-century, for example, the existentialists helped popularize tenets of nihilism in their attempts to blunt its destructive potential. By the end of the century, existential despair as a response to nihilism gave way to an attitude of indifference, often associated with antifoundationalism.

“Nihilism” comes from the Latin nihil, or nothing, which means not anything, that which does not exist. It appears in the verb “annihilate,” meaning to bring to nothing, to destroy completely. Early in the nineteenth century, Friedrich Jacobi used the word to negatively characterize transcendental idealism. It only became popularized, however, after its appearance in Ivan Turgenev’s novel Fathers and Sons (1862) where he used “nihilism” to describe the crude scientism espoused by his character Bazarov who preaches a creed of total negation.

In Russia, nihilism became identified with a loosely organized revolutionary movement (C.1860-1917) that rejected the authority of the state, church, and family. In his early writing, anarchist leader Mikhael Bakunin (1814-1876) composed the notorious entreaty still identified with nihilism: “Let us put our trust in the eternal spirit which destroys and annihilates only because it is the unsearchable and eternally creative source of all life–the passion for destruction is also a creative passion!” (Reaction in Germany, 1842). The movement advocated a social arrangement based on rationalism and materialism as the sole source of knowledge and individual freedom as the highest goal. By rejecting man’s spiritual essence in favor of a solely materialistic one, nihilists denounced God and religious authority as antithetical to freedom. The movement eventually deteriorated into an ethos of subversion, destruction, and anarchy, and by the late 1870s, a nihilist was anyone associated with clandestine political groups advocating terrorism and assassination.

The earliest philosophical positions associated with what could be characterized as a nihilistic outlook are those of the Skeptics. Because they denied the possibility of certainty, Skeptics could denounce traditional truths as unjustifiable opinions. When Demosthenes (c.371-322 BC), for example, observes that “What he wished to believe, that is what each man believes” (Olynthiac), he posits the relational nature of knowledge. Extreme skepticism, then, is linked to epistemological nihilism which denies the possibility of knowledge and truth; this form of nihilism is currently identified with postmodern antifoundationalism. Nihilism, in fact, can be understood in several different ways. Political Nihilism, as noted, is associated with the belief that the destruction of all existing political, social, and religious order is a prerequisite for any future improvement. Ethical nihilism or moral nihilism rejects the possibility of absolute moral or ethical values. Instead, good and evil are nebulous, and values addressing such are the product of nothing more than social and emotive pressures. Existential nihilism is the notion that life has no intrinsic meaning or value, and it is, no doubt, the most commonly used and understood sense of the word today.

Max Stirner’s (1806-1856) attacks on systematic philosophy, his denial of absolutes, and his rejection of abstract concepts of any kind often places him among the first philosophical nihilists. For Stirner, achieving individual freedom is the only law; and the state, which necessarily imperils freedom, must be destroyed. Even beyond the oppression of the state, though, are the constraints imposed by others because their very existence is an obstacle compromising individual freedom. Thus Stirner argues that existence is an endless “war of each against all” (The Ego and its Own, trans. 1907).

Among philosophers, Friedrich Nietzsche is most often associated with nihilism. For Nietzsche, there is no objective order or structure in the world except what we give it. Penetrating the faades buttressing convictions, the nihilist discovers that all values are baseless and that reason is impotent. “Every belief, every considering something-true,” Nietzsche writes, “is necessarily false because there is simply no true world” (Will to Power [notes from 1883-1888]). For him, nihilism requires a radical repudiation of all imposed values and meaning: “Nihilism is . . . not only the belief that everything deserves to perish; but one actually puts one’s shoulder to the plough; one destroys” (Will to Power).

The caustic strength of nihilism is absolute, Nietzsche argues, and under its withering scrutiny “the highest values devalue themselves. The aim is lacking, and ‘Why’ finds no answer” (Will to Power). Inevitably, nihilism will expose all cherished beliefs and sacrosanct truths as symptoms of a defective Western mythos. This collapse of meaning, relevance, and purpose will be the most destructive force in history, constituting a total assault on reality and nothing less than the greatest crisis of humanity:

What I relate is the history of the next two centuries. I describe what is coming, what can no longer come differently: the advent of nihilism. . . . For some time now our whole European culture has been moving as toward a catastrophe, with a tortured tension that is growing from decade to decade: restlessly, violently, headlong, like a river that wants to reach the end. . . . (Will to Power)

Since Nietzsche’s compelling critique, nihilistic themes–epistemological failure, value destruction, and cosmic purposelessness–have preoccupied artists, social critics, and philosophers. Convinced that Nietzsche’s analysis was accurate, for example, Oswald Spengler in The Decline of the West (1926) studied several cultures to confirm that patterns of nihilism were indeed a conspicuous feature of collapsing civilizations. In each of the failed cultures he examines, Spengler noticed that centuries-old religious, artistic, and political traditions were weakened and finally toppled by the insidious workings of several distinct nihilistic postures: the Faustian nihilist “shatters the ideals”; the Apollinian nihilist “watches them crumble before his eyes”; and the Indian nihilist “withdraws from their presence into himself.” Withdrawal, for instance, often identified with the negation of reality and resignation advocated by Eastern religions, is in the West associated with various versions of epicureanism and stoicism. In his study, Spengler concludes that Western civilization is already in the advanced stages of decay with all three forms of nihilism working to undermine epistemological authority and ontological grounding.

In 1927, Martin Heidegger, to cite another example, observed that nihilism in various and hidden forms was already “the normal state of man” (The Question of Being). Other philosophers’ predictions about nihilism’s impact have been dire. Outlining the symptoms of nihilism in the 20th century, Helmut Thielicke wrote that “Nihilism literally has only one truth to declare, namely, that ultimately Nothingness prevails and the world is meaningless” (Nihilism: Its Origin and Nature, with a Christian Answer, 1969). From the nihilist’s perspective, one can conclude that life is completely amoral, a conclusion, Thielicke believes, that motivates such monstrosities as the Nazi reign of terror. Gloomy predictions of nihilism’s impact are also charted in Eugene Rose’s Nihilism: The Root of the Revolution of the Modern Age (1994). If nihilism proves victorious–and it’s well on its way, he argues–our world will become “a cold, inhuman world” where “nothingness, incoherence, and absurdity” will triumph.

While nihilism is often discussed in terms of extreme skepticism and relativism, for most of the 20th century it has been associated with the belief that life is meaningless. Existential nihilism begins with the notion that the world is without meaning or purpose. Given this circumstance, existence itself–all action, suffering, and feeling–is ultimately senseless and empty.

In The Dark Side: Thoughts on the Futility of Life (1994), Alan Pratt demonstrates that existential nihilism, in one form or another, has been a part of the Western intellectual tradition from the beginning. The Skeptic Empedocles’ observation that “the life of mortals is so mean a thing as to be virtually un-life,” for instance, embodies the same kind of extreme pessimism associated with existential nihilism. In antiquity, such profound pessimism may have reached its apex with Hegesis. Because miseries vastly outnumber pleasures, happiness is impossible, the philosopher argues, and subsequently advocates suicide. Centuries later during the Renaissance, William Shakespeare eloquently summarized the existential nihilist’s perspective when, in this famous passage near the end of Macbeth, he has Macbeth pour out his disgust for life:

Out, out, brief candle! Life’s but a walking shadow, a poor player That struts and frets his hour upon the stage And then is heard no more; it is a tale Told by an idiot, full of sound and fury, Signifying nothing.

In the twentieth century, it’s the atheistic existentialist movement, popularized in France in the 1940s and 50s, that is responsible for the currency of existential nihilism in the popular consciousness. Jean-Paul Sartre’s (1905-1980) defining preposition for the movement, “existence precedes essence,” rules out any ground or foundation for establishing an essential self or a human nature. When we abandon illusions, life is revealed as nothing; and for the existentialists, nothingness is the source of not only absolute freedom but also existential horror and emotional anguish. Nothingness reveals each individual as an isolated being “thrown” into an alien and unresponsive universe, barred forever from knowing why yet required to invent meaning. It’s a situation that’s nothing short of absurd. Writing from the enlightened perspective of the absurd, Albert Camus (1913-1960) observed that Sisyphus’ plight, condemned to eternal, useless struggle, was a superb metaphor for human existence (The Myth of Sisyphus, 1942).

The common thread in the literature of the existentialists is coping with the emotional anguish arising from our confrontation with nothingness, and they expended great energy responding to the question of whether surviving it was possible. Their answer was a qualified “Yes,” advocating a formula of passionate commitment and impassive stoicism. In retrospect, it was an anecdote tinged with desperation because in an absurd world there are absolutely no guidelines, and any course of action is problematic. Passionate commitment, be it to conquest, creation, or whatever, is itself meaningless. Enter nihilism.

Camus, like the other existentialists, was convinced that nihilism was the most vexing problem of the twentieth century. Although he argues passionately that individuals could endure its corrosive effects, his most famous works betray the extraordinary difficulty he faced building a convincing case. In The Stranger (1942), for example, Meursault has rejected the existential suppositions on which the uninitiated and weak rely. Just moments before his execution for a gratuitous murder, he discovers that life alone is reason enough for living, a raison d’tre, however, that in context seems scarcely convincing. In Caligula (1944), the mad emperor tries to escape the human predicament by dehumanizing himself with acts of senseless violence, fails, and surreptitiously arranges his own assassination. The Plague (1947) shows the futility of doing one’s best in an absurd world. And in his last novel, the short and sardonic, The Fall (1956), Camus posits that everyone has bloody hands because we are all responsible for making a sorry state worse by our inane action and inaction alike. In these works and other works by the existentialists, one is often left with the impression that living authentically with the meaninglessness of life is impossible.

Camus was fully aware of the pitfalls of defining existence without meaning, and in his philosophical essay The Rebel (1951) he faces the problem of nihilism head-on. In it, he describes at length how metaphysical collapse often ends in total negation and the victory of nihilism, characterized by profound hatred, pathological destruction, and incalculable violence and death.

By the late 20th century, “nihilism” had assumed two different castes. In one form, “nihilist” is used to characterize the postmodern person, a dehumanized conformist, alienated, indifferent, and baffled, directing psychological energy into hedonistic narcissism or into a deep ressentiment that often explodes in violence. This perspective is derived from the existentialists’ reflections on nihilism stripped of any hopeful expectations, leaving only the experience of sickness, decay, and disintegration.

In his study of meaninglessness, Donald Crosby writes that the source of modern nihilism paradoxically stems from a commitment to honest intellectual openness. “Once set in motion, the process of questioning could come to but one end, the erosion of conviction and certitude and collapse into despair” (The Specter of the Absurd, 1988). When sincere inquiry is extended to moral convictions and social consensus, it can prove deadly, Crosby continues, promoting forces that ultimately destroy civilizations. Michael Novak’s recently revised The Experience of Nothingness (1968, 1998) tells a similar story. Both studies are responses to the existentialists’ gloomy findings from earlier in the century. And both optimistically discuss ways out of the abyss by focusing of the positive implications nothingness reveals, such as liberty, freedom, and creative possibilities. Novak, for example, describes how since WWII we have been working to “climb out of nihilism” on the way to building a new civilization.

In contrast to the efforts to overcome nihilism noted above is the uniquely postmodern response associated with the current antifoundationalists. The philosophical, ethical, and intellectual crisis of nihilism that has tormented modern philosophers for over a century has given way to mild annoyance or, more interestingly, an upbeat acceptance of meaninglessness.

French philosopher Jean-Francois Lyotard characterizes postmodernism as an “incredulity toward metanarratives,” those all-embracing foundations that we have relied on to make sense of the world. This extreme skepticism has undermined intellectual and moral hierarchies and made “truth” claims, transcendental or transcultural, problematic. Postmodern antifoundationalists, paradoxically grounded in relativism, dismiss knowledge as relational and “truth” as transitory, genuine only until something more palatable replaces it (reminiscent of William James’ notion of “cash value”). The critic Jacques Derrida, for example, asserts that one can never be sure that what one knows corresponds with what is. Since human beings participate in only an infinitesimal part of the whole, they are unable to grasp anything with certainty, and absolutes are merely “fictional forms.”

American antifoundationalist Richard Rorty makes a similar point: “Nothing grounds our practices, nothing legitimizes them, nothing shows them to be in touch with the way things are” (“From Logic to Language to Play,” 1986). This epistemological cul-de-sac, Rorty concludes, leads inevitably to nihilism. “Faced with the nonhuman, the nonlinguistic, we no longer have the ability to overcome contingency and pain by appropriation and transformation, but only the ability to recognize contingency and pain” (Contingency, Irony, and Solidarity, 1989). In contrast to Nietzsche’s fears and the angst of the existentialists, nihilism becomes for the antifoundationalists just another aspect of our contemporary milieu, one best endured with sang-froid.

In The Banalization of Nihilism (1992) Karen Carr discusses the antifoundationalist response to nihilism. Although it still inflames a paralyzing relativism and subverts critical tools, “cheerful nihilism” carries the day, she notes, distinguished by an easy-going acceptance of meaninglessness. Such a development, Carr concludes, is alarming. If we accept that all perspectives are equally non-binding, then intellectual or moral arrogance will determine which perspective has precedence. Worse still, the banalization of nihilism creates an environment where ideas can be imposed forcibly with little resistance, raw power alone determining intellectual and moral hierarchies. It’s a conclusion that dovetails nicely with Nietzsche’s, who pointed out that all interpretations of the world are simply manifestations of will-to-power.

It has been over a century now since Nietzsche explored nihilism and its implications for civilization. As he predicted, nihilism’s impact on the culture and values of the 20th century has been pervasive, its apocalyptic tenor spawning a mood of gloom and a good deal of anxiety, anger, and terror. Interestingly, Nietzsche himself, a radical skeptic preoccupied with language, knowledge, and truth, anticipated many of the themes of postmodernity. It’s helpful to note, then, that he believed we could–at a terrible price–eventually work through nihilism. If we survived the process of destroying all interpretations of the world, we could then perhaps discover the correct course for humankind:

I praise, I do not reproach, [nihilism’s] arrival. I believe it is one of the greatest crises, a moment of the deepest self-reflection of humanity. Whether man recovers from it, whether he becomes master of this crisis, is a question of his strength. It is possible. . . . (Complete Works Vol. 13)

Alan Pratt Email: pratta@db.erau.edu Embry-Riddle University U. S. A.

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Hedonism – Wikipedia, the free encyclopedia

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Jan 202016
 

Hedonism is a school of thought that argues that pleasure is the primary or most important intrinsic good.[1]

A hedonist strives to maximize net pleasure (pleasure minus pain).

Ethical hedonism is the idea that all people have the right to do everything in their power to achieve the greatest amount of pleasure possible to them, assuming that their actions do not infringe on the equal rights of others. It is also the idea that every person’s pleasure should far surpass their amount of pain. Ethical hedonism is said to have been started by Aristippus of Cyrene, a student of Socrates. He held the idea that pleasure is the highest good.[2]

The name derives from the Greek word for “delight” ( hdonismos from hdon “pleasure”, cognate with English sweet + suffix – -ismos “ism”). The Greek word coming from ancient Assyrian word “adtu” meaning: delight.

In the original Old Babylonian version of the Epic of Gilgamesh, which was written soon after the invention of writing, Siduri gave the following advice “Fill your belly. Day and night make merry. Let days be full of joy. Dance and make music day and night […] These things alone are the concern of men”, which may represent the first recorded advocacy of a hedonistic philosophy.[3]

Scenes of a harper entertaining guests at a feast was common in ancient Egyptian tombs (see Harper’s Songs), and sometimes contained hedonistic elements, calling guests to submit to pleasure because they cannot be sure that they will be rewarded for good with a blissful afterlife. The following is a song attributed to the reign of one of the Intef[disambiguation needed] kings before or after the 12th dynasty, and the text was used in the eighteenth and nineteenth dynasties.[4][5]

Let thy desire flourish, In order to let thy heart forget the beatifications for thee. Follow thy desire, as long as thou shalt live. Put myrrh upon thy head and clothing of fine linen upon thee, Being anointed with genuine marvels of the gods’ property. Set an increase to thy good things; Let not thy heart flag. Follow thy desire and thy good. Fulfill thy needs upon earth, after the command of thy heart, Until there come for thee that day of mourning.

Crvka was an Indian hedonist school of thought that arose approximately 600 BC, and died out in the 14th century CE. The Crvkas maintained that the Hindu scriptures are false, that the priests are liars, and that there is no afterlife, and that pleasure should be the aim of living. Unlike other Indian schools of philosophy, the Crvkas argued that there is nothing wrong with sensual indulgence. They held a naturalistic worldview. They believed that perception is the only source of knowledge.

Carvaka famously said “Yevat jivet sukham jivet, rinam kritva gritam pivet, bhasm bhutasya deham, punara’janmam kutah?”. This means ” Live with full pleasure till you are alive. Borrow heavily for your wordly pleasures (e.g. drinking clarified and tasty butter), once your body dies, will it ever come back again?”

Democritus seems to be the earliest philosopher on record to have categorically embraced a hedonistic philosophy; he called the supreme goal of life “contentment” or “cheerfulness”, claiming that “joy and sorrow are the distinguishing mark of things beneficial and harmful” (DK 68 B 188).[6]

The Cyrenaics were an ultra-hedonist Greek school of philosophy founded in the 4th century BC, supposedly by Aristippus of Cyrene, although many of the principles of the school are believed to have been formalized by his grandson of the same name, Aristippus the Younger. The school was so called after Cyrene, the birthplace of Aristippus. It was one of the earliest Socratic schools. The Cyrenaics taught that the only intrinsic good is pleasure, which meant not just the absence of pain, but positively enjoyable sensations. Of these, momentary pleasures, especially physical ones, are stronger than those of anticipation or memory. They did, however, recognize the value of social obligation, and that pleasure could be gained from altruism[citation needed]. Theodorus the Atheist was a latter exponent of hedonism who was a disciple of younger Aristippus,[7] while becoming well known for expounding atheism. The school died out within a century, and was replaced by Epicureanism.

The Cyrenaics were known for their skeptical theory of knowledge. They reduced logic to a basic doctrine concerning the criterion of truth.[8] They thought that we can know with certainty our immediate sense-experiences (for instance, that I am having a sweet sensation now) but can know nothing about the nature of the objects that cause these sensations (for instance, that the honey is sweet).[9] They also denied that we can have knowledge of what the experiences of other people are like.[10] All knowledge is immediate sensation. These sensations are motions which are purely subjective, and are painful, indifferent or pleasant, according as they are violent, tranquil or gentle.[9][11] Further they are entirely individual, and can in no way be described as constituting absolute objective knowledge. Feeling, therefore, is the only possible criterion of knowledge and of conduct.[9] Our ways of being affected are alone knowable. Thus the sole aim for everyone should be pleasure.

Cyrenaicism deduces a single, universal aim for all people which is pleasure. Furthermore, all feeling is momentary and homogeneous. It follows that past and future pleasure have no real existence for us, and that among present pleasures there is no distinction of kind.[11] Socrates had spoken of the higher pleasures of the intellect; the Cyrenaics denied the validity of this distinction and said that bodily pleasures, being more simple and more intense, were preferable.[12] Momentary pleasure, preferably of a physical kind, is the only good for humans. However some actions which give immediate pleasure can create more than their equivalent of pain. The wise person should be in control of pleasures rather than be enslaved to them, otherwise pain will result, and this requires judgement to evaluate the different pleasures of life.[13] Regard should be paid to law and custom, because even though these things have no intrinsic value on their own, violating them will lead to unpleasant penalties being imposed by others.[12] Likewise, friendship and justice are useful because of the pleasure they provide.[12] Thus the Cyrenaics believed in the hedonistic value of social obligation and altruistic behaviour.

Epicureanism is a system of philosophy based upon the teachings of Epicurus (c. 341c. 270 BC), founded around 307 BC. Epicurus was an atomic materialist, following in the steps of Democritus and Leucippus. His materialism led him to a general stance against superstition or the idea of divine intervention. Following Aristippusabout whom very little is knownEpicurus believed that the greatest good was to seek modest, sustainable “pleasure” in the form of a state of tranquility and freedom from fear (ataraxia) and absence of bodily pain (aponia) through knowledge of the workings of the world and the limits of our desires. The combination of these two states is supposed to constitute happiness in its highest form. Although Epicureanism is a form of hedonism, insofar as it declares pleasure as the sole intrinsic good, its conception of absence of pain as the greatest pleasure and its advocacy of a simple life make it different from “hedonism” as it is commonly understood.

In the Epicurean view, the highest pleasure (tranquility and freedom from fear) was obtained by knowledge, friendship and living a virtuous and temperate life. He lauded the enjoyment of simple pleasures, by which he meant abstaining from bodily desires, such as sex and appetites, verging on asceticism. He argued that when eating, one should not eat too richly, for it could lead to dissatisfaction later, such as the grim realization that one could not afford such delicacies in the future. Likewise, sex could lead to increased lust and dissatisfaction with the sexual partner. Epicurus did not articulate a broad system of social ethics that has survived but had a unique version of the Golden Rule.

It is impossible to live a pleasant life without living wisely and well and justly (agreeing “neither to harm nor be harmed”),[14] and it is impossible to live wisely and well and justly without living a pleasant life.[15]

Epicureanism was originally a challenge to Platonism, though later it became the main opponent of Stoicism. Epicurus and his followers shunned politics. After the death of Epicurus, his school was headed by Hermarchus; later many Epicurean societies flourished in the Late Hellenistic era and during the Roman era (such as those in Antiochia, Alexandria, Rhodes and Ercolano). The poet Lucretius is its most known Roman proponent. By the end of the Roman Empire, having undergone Christian attack and repression, Epicureanism had all but died out, and would be resurrected in the 17th century by the atomist Pierre Gassendi, who adapted it to the Christian doctrine.

Some writings by Epicurus have survived. Some scholars consider the epic poem On the Nature of Things by Lucretius to present in one unified work the core arguments and theories of Epicureanism. Many of the papyrus scrolls unearthed at the Villa of the Papyri at Herculaneum are Epicurean texts. At least some are thought to have belonged to the Epicurean Philodemus.

Mohism was a philosophical school of thought founded by Mozi in the 5th century BC. It paralleled the utilitarianism later developed by English thinkers. As Confucianism became the preferred philosophy of later Chinese dynasties, starting from the Emperor Wu of Han, Mohism and other non-Confucian philosophical schools of thought were suppressed.[citation needed]

Christian hedonism is a controversial Christian doctrine current in some evangelical circles, particularly those of the Reformed tradition.[16] The term was first coined by Reformed Baptist theologian John Piper in his 1986 book Desiring God: My shortest summary of it is: God is most glorified in us when we are most satisfied in him. Or: The chief end of man is to glorify God by enjoying him forever. Does Christian Hedonism make a god out of pleasure? No. It says that we all make a god out of what we take most pleasure in. [16] Piper states his term may describe the theology of Jonathan Edwards, who referred to a future enjoyment of him [God] in heaven.[17] In the 17th century, the atomist Pierre Gassendi adapted Epicureanism to the Christian doctrine.

Utilitarianism addresses problems with moral motivation neglected by Kantianism by giving a central role to happiness. It is an ethical theory holding that the proper course of action is the one that maximizes the overall “good” of the society.[18] It is thus one form of consequentialism, meaning that the moral worth of an action is determined by its resulting outcome. The most influential contributors to this theory are considered to be the 18th and 19th-century British philosophers Jeremy Bentham and John Stuart Mill. Conjoining hedonismas a view as to what is good for peopleto utilitarianism has the result that all action should be directed toward achieving the greatest total amount of happiness (see Hedonic calculus). Though consistent in their pursuit of happiness, Bentham and Mill’s versions of hedonism differ. There are two somewhat basic schools of thought on hedonism:[1]

Contemporary proponents of hedonism include Swedish philosopher Torbjrn Tnnsj,[19]Fred Feldman.[20] and Spanish ethic philosopher Esperanza Guisn (published a “Hedonist manifesto” in 1990).[21]

A dedicated contemporary hedonist philosopher and writer on the history of hedonistic thought is the French Michel Onfray. He has written two books directly on the subject (L’invention du plaisir: fragments cyraniques[22] and La puissance d’exister: Manifeste hdoniste).[23] He defines hedonism “as an introspective attitude to life based on taking pleasure yourself and pleasuring others, without harming yourself or anyone else.”[24] “Onfray’s philosophical project is to define an ethical hedonism, a joyous utilitarianism, and a generalized aesthetic of sensual materialism that explores how to use the brain’s and the body’s capacities to their fullest extent — while restoring philosophy to a useful role in art, politics, and everyday life and decisions.”[25]

Onfray’s works “have explored the philosophical resonances and components of (and challenges to) science, painting, gastronomy, sex and sensuality, bioethics, wine, and writing. His most ambitious project is his projected six-volume Counter-history of Philosophy,”[25] of which three have been published. For him “In opposition to the ascetic ideal advocated by the dominant school of thought, hedonism suggests identifying the highest good with your own pleasure and that of others; the one must never be indulged at the expense of sacrificing the other. Obtaining this balance my pleasure at the same time as the pleasure of others presumes that we approach the subject from different angles political, ethical, aesthetic, erotic, bioethical, pedagogical, historiographical.”

For this he has “written books on each of these facets of the same world view.”[26] His philosophy aims “for “micro-revolutions, ” or revolutions of the individual and small groups of like-minded people who live by his hedonistic, libertarian values.”[27]

The Abolitionist Society is a transhumanist group calling for the abolition of suffering in all sentient life through the use of advanced biotechnology. Their core philosophy is negative utilitarianism. David Pearce is a theorist of this perspective and he believes and promotes the idea that there exists a strong ethical imperative for humans to work towards the abolition of suffering in all sentient life. His book-length internet manifesto The Hedonistic Imperative[28] outlines how technologies such as genetic engineering, nanotechnology, pharmacology, and neurosurgery could potentially converge to eliminate all forms of unpleasant experience among human and non-human animals, replacing suffering with gradients of well-being, a project he refers to as “paradise engineering”.[29] A transhumanist and a vegan,[30] Pearce believes that we (or our future posthuman descendants) have a responsibility not only to avoid cruelty to animals within human society but also to alleviate the suffering of animals in the wild.

Critics of hedonism have objected to its exclusive concentration on pleasure as valuable.

In particular, G. E. Moore offered a thought experiment in criticism of pleasure as the sole bearer of value: he imagined two worlds – one of exceeding beauty and the other a heap of filth. Neither of these worlds will be experienced by anyone. The question, then, is if it is better for the beautiful world to exist than the heap of filth. In this Moore implied that states of affairs have value beyond conscious pleasure, which he said spoke against the validity of hedonism.[31]

Chisholm, Hugh, ed. (1911). “Hedonism”. Encyclopdia Britannica (11th ed.). Cambridge University Press.

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Rationalism – New World Encyclopedia

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Jan 202016
 

Rationalism is a broad family of positions in epistemology. Perhaps the best general description of rationalism is the view that there are some distinctive aspects or faculties of the mind that (1) are distinct from passive aspects of the mind such as sense-perceptions and (2) someway or other constitute a special source (perhaps only a partial source) of knowledge. These distinctive aspects are typically associated or identified with human abilities to engage in mathematics and abstract reasoning, and the knowledge they provide is often seen as of a type that could not have come from other sources. Philosophers who resist rationalism are usually grouped under the heading of empiricists, who are often allied under the claim that all human knowledge comes from experience.

The debate around which the rationalism/empiricism distinction revolves is one of the oldest and most continuous in philosophy. Some of Plato’s most explicit arguments address the topic and it was arguably the central concern of many of the Modern thinkers. Indeed, Kant’s principal works were concerned with “pure” faculties of reason. Contemporary philosophers have advanced and refined the issue, though there are current thinkers who align themselves with either side of the tradition.

It is difficult to identify a major figure in the history to whom some rationalist doctrine has not been attributed at some point. One reason for this is that there is no question that humans possess some sort of reasoning ability that allows them to come to know some facts they otherwise wouldn’t (for instance, mathematical facts), and every philosopher has had to acknowledge this fact. Another reason is that the very business of philosophy is to achieve knowledge by using the rational faculties, in contrast to, for instance, mystical approaches to knowledge. Nevertheless, some philosophical figures stand out as attributing even greater significance to reasoning abilities. Three are discussed here: Plato, Descartes, and Kant.

The most famous metaphysical doctrine of the great Greek philosopher Plato is his doctrine of “Forms,” as espoused in The Republic and other dialogues. The Forms are described as being outside of the world as experience by the senses, but as somehow constituting the metaphysical basis of the world. Exactly how they fulfill this function is generally only gestured at through analogies, though the Timaeus describes the Forms as operating as blueprints for the craftsman of the universe.

The distinctiveness of Plato’s rationalism lies in another aspect of his theory of Forms. Though the common sense position is that the senses are one’s best means of getting in touch with reality, Plato held that human reasoning ability was the one thing that allowed people to approach the Forms, the most fundamental aspects of reality. It is worth pausing to reflect on how radical this idea is: On such a view, philosophical attempts to understand the nature of “good” or “just” are not mere analyses of concepts formed, but rather explorations of eternal things that are responsible for shaping the reality of the sensory world.

The French philosopher Ren Descartes, whose Meditations on First Philosophy defined the course of much philosophy from then up till the present day, stood near the beginning of the Western European Enlightenment. Impressed by the power of mathematics and the development of the new science, Descartes was confronted with two questions: How was it that people were coming to attain such deep knowledge of the workings of the universe, and how was it that they had spent so long not doing so?

Regarding the latter question, Descartes concluded that people had been mislead by putting too much faith in the testimony of their senses. In particular, he thought such a mistake was behind the then-dominant physics of Aristotle. Aristotle and the later Scholastics, in Descartes’ mind, had used their reasoning abilities well enough on the basis of what their senses told them. The problem was that they had chosen the wrong starting point for their inquiries.

By contrast, the advancements in the new science (some of which Descartes could claim for himself) were based in a very different starting point: The “pure light of reason.” In Descartes’ view, God had equipped humans with a faculty that was able to understand the fundamental essence of the two types of substance that made up the world: Intellectual substance (of which minds are instances) and physical substance (matter). Not only did God give people such a faculty, Descartes claimed, but he made them such that, when using the faculty, they are unable to question its deliverances. Not only that, but God left humanity the means to conclude that the faculty was a gift from a non-deceptive omnipotent creator.

In some respects, the German philosophy Immanuel Kant is the paradigm of an anti-rationalist philosopher. A major portion of his central work, the 1781 Critique of Pure Reason, is specifically devoted to attacking rationalist claims to have insight through reason alone into the nature of the soul, the spatiotemporal/causal structure of the universe, and the existence of God. Plato and Descartes are among his most obvious targets.

For instance, in his evaluation of rationalist claims concerning the nature of the soul (the chapter of the Critique entitled “The Paralogisms of Pure Reason”), Kant attempts to diagnose how a philosopher like Descartes could have been tempted into thinking that he could accomplish deep insight into his own nature by thought alone. One of Descartes’ conclusions was that his mind, unlike his body, was utterly simple and so lacked parts. Kant claimed that Descartes mistook a simple experience (the thought, “I think”) for an experience of simplicity. In other words, he saw Descartes as introspecting, being unable to find any divisions within himself, and thereby concluding that he lacked any such divisions and so was simple. But the reason he was unable to find divisions, in Kant’s view, was that by mere thought alone we are unable to find anything.

At the same time, however, Kant was an uncompromising advocate of some key rationalist intuitions. Confronted with the Scottish philosopher David Hume’s claim that the concept of “cause” was merely one of the constant conjunction of resembling entities, Kant insisted that all Hume really accomplished was in proving that the concept of causation could not possibly have its origin in human senses. What the senses cannot provide, Kant claimed, is any notion of necessity, yet a crucial part of our concept of causation is that it is the necessary connection of two entities or events. Kant’s conclusion was that this concept, and others like it, must be a precondition of sensory experience itself.

In his moral philosophy (most famously expounded in his Groundwork for the Metaphysics of Morals), Kant made an even more original claim on behalf of reason. The sensory world, in his view, was merely ideal, in that the spatiotemporal/sensory features of the objects people experience have their being only in humanity’s representations, and so are not features of the objects in themselves. But this means that most everyday concepts are simply inadequate for forming any notion whatsoever of what the world is like apart from our subjective features. By contrast, Kant claimed that there was no parallel reason for thinking that objects in themselves (which include our soul) do not conform to the most basic concepts of our higher faculties. So while those faculties are unable to provide any sort of direct, reliable access to the basic features of reality as envisioned by Plato and Descartes, they and they alone give one the means to at least contemplate what true reality might be like.

In the early part of the twentieth century, a philosophical movement known as Logical Positivism set the ground for a new debate over rationalism. The positivists (whose ranks included Otto Neurath and Rudolf Carnap) claimed that the only meaningful claims were those that could potentially be verified by some set of experiential observations. Their aim was to do away with intellectual traditions that they saw as simply vacuous, including theology and the majority of philosophy, in contrast with science.

As it turned out, the Positivists were unable to explain how all scientific claims were verifiable by experience, thus losing their key motivation (for instance, no set of experiences could verify that all stars are hot, since no set of experiential observations could itself confirm that one had observed all the stars). Nevertheless, their vision retained enough force that later philosophers felt hard-pressed to explain what, if anything, was epistemically distinctive about the non-sensory faculties. One recent defense of rationalism can be found in the work of contemporary philosophers such as Laurence Bonjour (the recent developments of the position are, in general, too subtle to be adequately addressed here). Yet the charge was also met by a number of thinkers working in areas as closely related to psychology as to philosophy.

A number of thinkers have argued for something like Kant’s view that people have concepts independently of experience. Indeed, the groundbreaking work of the linguist Noam Chomsky (which he occasionally tied to Descartes) is largely based on the assumption that there is a “universal grammar”that is, some basic set of linguistic categories and abilities that necessarily underlie all human languages. One task of linguistics, in Chomsky’s view, is to look at a diversity of languages in order to determine what the innate linguistic categories and capacities are.

A similar proposal concerning human beliefs about mentality itself has been advanced by Peter Carruthers. One intuitive view is that each of us comes to attribute mental states to other people only after a long developmental process where people learn to associate observable phenomena with their own mental states, and thereby with others. Yet, Carruthers argues, this view simply cannot account for the speed and complexity of humans’ understanding of others’ psychology at very early ages. The only explanation is that some understanding of mentality is “hard-wired” in the human brain.

All links retrieved June 25, 2015.

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CryonicsMagazine, July 2013

[The following is a text adaptation of a PowerPoint presentation given on Sunday, May 12, 2013at the Resuscitation and Reintegration of Cryonics Patients Symposium in Portland, Oregon]

An understanding of probable futurerepair requirements for cryonicspatients could affect current cryostoragetemperature practices. I believe thatmolecular nanotechnology at cryogenictemperatures will probably be required forrepair and revival of all cryonics patientsin cryo-storage now and in the foreseeablefuture. Current nanotechnology is far frombeing adequate for that task. I believe thatwarming cryonics patients to temperatureswhere diffusion-based devices couldoperate would result in dissolutionof structure by hydrolysis and similarmolecular motion before repair could beachieved. I believe that the technologiefor scanning the brain/mind of a cryonicspatient, and reconstructing a patient fromthe scan are much more remote in thefuture than cryogenic nanotechnology.

Cryonicists face a credibility problem.It is important to show that resuscitationtechnology is possible (or not impossible)if cryonicists are to convince ourselvesor convince others that current cryonicspractice is not a waste of money and effort.For some people it is adequate to know thatthe anatomical basis of the mind is beingpreserved well enough even if in a veryfragmented form that some unspecifiedfuture technology could repair and restorememory and personal identity. Otherpeople want more detailed elaboration.

Books have detailed whatnanotechnology robots (nanorobots) willlook-like and be capable-of, including(notably) Nanosystems by K. Eric Drexler(1992) and Nanomedicine by Robert A.Freitas, Jr. (Volume I, 1999; Volume IIA,2003). The online Alcor library containsarticles detailing repair of cryonics patientsby nanorobots at cryogenic temperature,in particular, A CryopreservationRevival Scenario using MolecularNanotechnology by Ralph Merkle andRobert Freitas as well as RealisticScenario for Nanotechnological Repairof the Frozen Human Brain. Despitethe detailed descriptions, calculations, andquantitative analyses that have been given,any technology as remote from presentcapabilities as cryogenic nanotechnology iscertain to be very different from whateveranyone may currently imagine. It is difficultto argue against claims that all suchdescriptions are nothing more than handwaving,blue-sky speculations.

Current medical applications ofnanotechnology are mainly limited to theuse of nanoparticles for drug delivery.1Nanomachines are being built, but they arelittle more than toys including a rotor thatcan propel a molecule2 or microcantileverdeflection of DNA by electrostatic force.3In classical mechanics and kinetictheory of gases, on a molecular level,temperature is defined in terms of theaverage translational kinetic energy ofmolecules, which means that the lowerthe temperature the slower the motion ofthe molecules. According to the ArrheniusEquation, the rate of a chemical reactiondeclines exponentially with temperaturedecline. It would be wrong to concludethat nanomachines would barely be able tomove at cryogenic temperatures, however.Nanomachines operate by mechanicalmovement of constituent atoms, a processthat is temperature-independent. In fact,nanomachines would probably operatemore effectively at cryogenic temperaturebecause there would be far less jostlingof atoms in the molecular structuresupon which nanomachines would operate.Nanomachines would also be less vulnerableto reactions with oxygen at cryogenictemperature, although it would nonethelessbe preferable for cryogenic nanorepair tooccur in an oxygen-free environment.

Although under ideal circumstances iceformation can be prevented in cryonicspatients, circumstances too often result inat least some freezingsuch as inability toperfuse with vitrification solution, or poorperfusion with vitrification solution becauseof ischemia due to delayed treatment.Past cryonics patients were perfusedwith the (anti-freeze) cryoprotectantglycerol, whereas cryonics patients arecurrently perfused with cryoprotectantsolutions that include ethylene glycoland dimethylsulfoxide (DMSO). Unlikewater, which forms crystalline ice whensolidifying upon cooling, cryoprotectantsform an amorphous (non-crystalline,vitreous) solid (a hardened liquid) whensolidifying upon cooling. The hardenedliquid is a glass rather than an ice. Thetemperature at which the solidification(vitrification) occurs is called the glasstransition temperature (Tg).

For M22, the cryoprotectant used byAlcor to vitrify cryonics patients, Tg istypically between 123C and 124C(depending on the cooling rate). Tg isabout the same for the cryoprotectant(VM-1) used for cryonics patients at theCryonics Institute.Although freezing can be reduced oreliminated by perfusing cryonics patientswith vitrification solution before coolingto Tg, eliminating cracking is a moredifficult problem. Cryonics patients arecooled to cryogenic temperatures byexternal cooling. Thermal conductivity isslow in a cryonics patient, which meansthat the outside gets much colder thanthe inside. When the outside of a samplecools more quickly than the inside of thesample, thermal stress results. A vitrifiedpatient subjected to such thermal stresscan crack or fracture. No efforts have beenmade to find additives to M22 that wouldhave a similar effect as boron oxide hason allowing Pyrex glass to reduce thermalstress.

If a vitrified sample is small enough,and if cooling is slow enough, the samplecan be cooled far below Tg down toliquid nitrogen temperature withoutcracking. A rabbit kidney (10 millilitervolume) can be cooled down to liquidnitrogen temperature in two days withoutcracking/fracturing.6 Cryonics patientsare much too large to be cooled to liquidnitrogen temperature over a period ofdays without cracking. The amount oftime required for cooling vitrified cryonicspatients to liquid nitrogen temperaturewithout cracking is unknown, and wouldprobably be much too long.

In 1990 cryobiologist Dr. Gregory Fahypublished results of cracking experimentsthat he performed on samples of thecryoprotectant propylene glycol.4 Tg forpropylene glycol is 108C, but in RPS-2carrier solution the Tg is 107C. In oneexperiment he demonstrated that crackingbegan at lower temperatures for smallersamples, specifically: 143C for 46 mL,116C for 482 mL, and 111C for 1412mL. (The last volume is comparable to thevolume of an adult human brain.) Dr. Fahyalso demonstrated that cracking could bedelayed by cooling at slower cooling rates.But when cracking did occur, the cracksformed at the lower temperatures werefiner and more numerous.

Based on evidence that large cracksformed at higher temperatures by morerapid cooling results in a relief of thermalstress that prevents the fine and morenumerous cracks formed when crackingbegins at lower temperature, the CryonicsInstitute (CI) altered its cooling protocolfor cryonics patients. CI patients arecooled quickly from 118C to 145C,and then cooled slowly to 196C.5In order to minimize or eliminatecracking in cryonics patients, proposalshave been made to store the patients attemperatures lower than Tg (124C), buthigher than liquid nitrogen temperature(196C).6 Such a cryo-storage protocolis described as Intermediate TemperatureStorage (ITS). Alcor currently cares for anumber of ITS patients at 140C, but aconsensus has not yet been reached aboutwhat ITS temperature will be chosen whenthis service is made available to all Alcormembers.

Although Alcors vitrification solutionM22 can prevent ice formation with somesamples and protocols, M22 cannot preventice nuclei from forming at cryogenictemperatures. Ice nuclei are local clustersof water molecules that rotate into anorientation that favors later growth of icecrystals when a solution is warmed. Icenuclei are not damaging, but the fact that icenuclei can form indicates molecular mobilitywhich could be damaging. Specifically,between the temperatures of 100C and135C, ice nuclei can form in M22, withthe maximum ice nucleation rate occurringnear Tg. At 140C the ice nucleation ratefor M22 is undetectable. But nuclei will beprobably formed in cooling to 140C.

Although cryostorage at 140C is anattempt to minimize cracking and minimizenucleation, this ITS neither eliminatescracking nor ice nuclei formation.Cryonics patients slowly cooled from Tgto 140C will surely experience someice nucleation. Alcor places a listeningdevice (crackphone) under the skullof its cryonics patients for the purposeof monitoring cracking events. Myunderstanding is that for most Alcorpatients the crackphone detects crackingat Tg or only slightly below Tg, althoughthere was reportedly one M22-perfusedpatient for which the first fracturing eventoccurred at 134C. The propylene glycolexperiments would support the view ofcracking occurring slightly below Tg, butvitrified biological samples resist crackingbetter than pure cryoprotectant solutions.

With ice formation, cracking could occurat temperatures higher than Tg. AlthoughITS may prevent the formation of crackingthat could occur in cooling below 140C,it does not prevent the cracks that occur incooling from Tg to 140C.I have wondered whether there areforms of damage which would occurin a cryonics patient stored at 140Cthat would not occur during storage at196C. A solid cryogenic state of matterdoes not prevent molecular motion.Molecular motion in a biological sampleheld at cryogenic temperature could resultin damage to that sample.

Ions generated by radiation aremuch more mobile than molecules.An ionic species (probably protons) intrimethylammonium dihydrogen phosphateglass is nine orders of magnitude moremobile than the glass moleculesandsodium ions in sodium disilicate glass aretwelve orders of magnitude more mobilethan the glass molecules.9

Cryobiologist Peter Mazur has statedthat below 130C viscosity is so high(>1013 Poise) that diffusion is insignificantover less than geological time spans. Headds that there is no confirmed case ofcell death ascribed to storage at 196Cfor some 2-15 years and none even whencells are exposed to levels of ionizingradiation some 100 times background forup to 5 yr.10 Frozen 8-cell mouse embryossubjected to the equivalent of 2,000 yearsof background gamma rays during 5 to8 months in liquid nitrogen showed noevident detrimental effect on survival ordevelopment.11

In attempting to evaluate damagingeffects of temperature and radiation, itcould be valuable to analyze chemicalalterations, rather than complete cell deathor viability. Acetylcholinesterase enzymesubjected to X-ray irradiation showsconformational changes at 118C, but noconformational changes when irradiatedat 173C.12 X-ray irradiation of insulinand elastase crystals resulted in four timesas much damage to disulfide bridges at173C compared to 223C.13 Anotherstudy showed a 25% crystal diffractionlifetime extension for D-xylose isomerasecrystals X-ray irradiated at less than 253Ccompared to those irradiated at 173C.14

One study showed that lettuce seedsshow measurable deterioration when storedat liquid nitrogen temperature for periodsof 10 to 20 years. Rotational molecularmobility was quantified. A graphical plotwas generated showing increasing timesfor when 50% of lettuce seeds would failto germinate as a function of decreasingtemperature. Those times were estimated tobe about 500 years for 135C and about3,400 years for 196C.15 Translationalvibrational motion has been given as anexplanation for seed quality deterioration atcryogenic temperatures.16 The mean squarevibrational amplitude of a water moleculeis not even zero at 0 Kelvins (273C), andhas been determined to be 0.0082 squareAngstroms. The mean square vibrationalamplitude is 0.0171 square Angstroms at173C and 0.0339 square Angstroms at73C.17

Realistically, however, 3,400 years ismuch longer than cryonics patients arelikely to be stored. Storage in liquid heliumat 269C or in a shadowed moon craterat 235C18 would certainly be moretrouble than it is worth. Northern woodfrogs spend months in a semi-frozen stateat 3C to 6C, and are able to revivewith full recovery of heartbeat uponre-warming.19 An empirical study of acryoprotectant very similar to M22 (VS55) showed viscosity continuing to increaseexponentially below Tg, just as viscosityincreases exponentially with temperaturedecrease above Tg.20 The exponentialdecrease in viscosity (molecular mobility)that makes ice nucleation cease at 135Cindicates that there is probably littlemolecular mobility at 140C, despite thepossibility of damage from ionic species orvibrational motion. All things considered,however, my personal preference is forstorage in liquid nitrogen, rather than someintermediate temperature above 196C. Iwould also prefer for cryogenic nanorobotrepair to be at liquid nitrogen temperature.

I am by no means a nanotechnologyexpert, but I can give a brief descriptionof my own views of how cryogenicnanotechnology repair of a cryonicspatient would proceed. I must thank RalphMerkle for his assistance in allowing me toconsult with him to formulate and clarifymany of my views.I believe that repair of cryonics patientsat cryogenic temperature would be acombination of nano-mining and nanoarcheology.Nanorobots (nanometer-sizedrobots) would first clear blood vessels ofwater, cryoprotectant, plasma, blood cells,etc. The blood vessels would becomemining shafts that would provide access toall body tissues. Nanometer-sized conveyorbelts or trucks on rails could removeblood vessel contents. Where freezingor ischemia had destroyed blood vessels,artificial shafts would be created. Unlikethe nano-mining that simply removes allblood vessel contents, the creation ofartificial shafts would have the characterof an archeological dig. Care would betaken in removing material to avoiddamaging precious artifacts that mightindicate original structure which could be discovered at any unexpected moment.

Section 13.4 of K. Eric Drexlers bookNanosystems provides diagrams and detailsof a nanorobot manipulator arm. Such adiamondoid component would containabout four million atoms, and could befitted with a variety of tools at the endof the arm. A variety of tips with varyingdegrees of chemical reactivity couldallow for reversible, temporary chemicalbonds that could be used for grabbingand moving molecules. These could rangefrom radicals or carbenes that would formstrong covalent bonds, to boron thatcan form relatively weak and reversiblebonds to nitrogen and oxygen, to simpleO-H groups that can form even weakerhydrogen bonds. Tools for digging neednot be so refined. The manipulator arm isdepicted as being 100 nanometers long and50 nanometers wide, although nanorobotswould need to be larger to includecapability for locomotion, computation,and power. A complete nanorobot couldbe as large as a few thousand nanometersin size. A capillary is between 5,000 to10,000 nanometers in diameter, so thereshould be plenty of room for many suchnanorobots to operate. Ralph Merkleestimates that 3,200 trillion nanorobotsweighing a total of 53 grams could repaira cryonics patient in about 3 years.21,22 Likemany of the calculations associated withnanotechnology, I take these figures with apound of salt. It is certainly true, however,that it could take years to repair a patient,and that there should not be a rush tofinish the job.

Merkle & Freitas have suggested thatnanorobots be powered by electrostaticmotors. Stators and rotors would be electricrather than magnetic. Tiny moving chargedplates are easier to fabricate than tiny coilsand tiny iron cores, but more fundamentally,magnetic properties do not scale well withreduced size (i.e., molecular-scale magneticmotors dont work), whereas electrostaticproperties do scale well with reduced size.Electrostatic actuators are already beingused in microelectromechanical systems(MEMS).23 High density batteries couldprovide power for days, and rechargingstations could be located throughout thepatient. Alternatively, nanotube cablescould bring power to the patient fromthe outside. Such cables could also bea means of transmitting and receivingcomputational data. Nanotube cablescould also be used to reunite fracture faces created by cracking. Scanning and imageprocessing capabilities would need toevaluate what needs to be fixed.

As much as possible I would favorreplacement rather than repair, whichwould greatly simplify the process. Itwould be much easier to replace a kidneythan to repair the diseased kidney ofan elderly patient who died of kidneydisease. Curing disease and rejuvenationwould thus become part of the repair of acryonics patient. Of course, neuro patientswould require an entirely new body. Thebrain would be the major exception toreplacement strategy because the braincould not be replaced without loss ofmemory and personal identity.

Even within the brain, however, it couldbe feasible to replace many componentswithout loss of memory and personalidentity. It could be feasible to replacemany organelles such as mitochondria,lysosomes, etc., and many macromoleculessuch as proteins, carbohydrates, and lipids.DNA could be repaired, and possiblyeven modified to cure genetic disease,but epigenetic expression in neurons maybe critical for reconstruction of synapticstructure. Synaptic connections wouldnot only be restored, but the quantityand quality of neurotransmitter contentsshould be restored. It is not simply a matterthat some neurotransmitters are inhibitoryand others are stimulatory. There are morethan 40 different neurotransmitters used inthe brain, and there must be a good reasonwhy such variety is necessitated.

Part of the repair process could involveremoval of ice nuclei, nearly all of whichwould be extracellular. Re-created bloodvessel contents would include freshcryoprotectant, water, plasma, and bloodcells without the original ice nuclei. Althoughsome repair scenarios favor different typesof repair above cryogenic temperature, Idoubt that this is necessary or desirable.Alternative repair scenarios involvesplitting the brain in half, and halvingthe halves repeatedly at cryogenictemperaturewith digitization at eachstepuntil the brain has been totallydigitized.21,22 Or digitization could bedone by repetitive nano-microtomes atcryogenic temperature. The digital datacould be used for full reconstruction. Somepeople might object that if one individualcould be created from digital data, manysuch individuals could be createdraisingquestions of which are duplicates and which is the original. There is detaileddiscussion of the duplicates problem/paradox in the philosophy section of mywebsiteBENBEST.COM.

Although other repair scenarioscould prove to be feasible, I believethat cryogenic nanotechnology will berequired for all cryonics patients in theforeseeable future until the problem ofcryoprotectant toxicity can be solved.With effective nontoxic cryoprotectants,sufficient cryoprotectant could be usedto prevent ice nuclei formation at alltemperatures, prevent devitrification(freezing) upon rewarming, and eliminateall toxic damage. In such a case, therecould be true reversible cryopreservation(suspended animation).

What is needed to create thenanotechnology required for repair ofcryonics patients? Small machines willneed to build parts for smaller machines,which would in turn build even smallermachines. Many details of machine operation must be perfected at each stage.Current modern technological civilizationbegan with cave people pounding on rocks.Ralph Merkle has said that compared tofuture technology, current technology ispounding on rocks.

References

1. Chi AH, Clayton K, Burrow TJ, Lewis R,Luciano D, Alexis F, Dhers S, Elman NM.Intelligent drug-delivery devices based onmicro- and nano-technologies. Ther Deliv.2013 Jan;4(1):77-94.

2. Kudernac T, Ruangsupapichat N,Parschau M, Maci B, Katsonis N,Harutyunyan SR, Ernst KH, Feringa BL.Electrically driven directional motion of afour-wheeled molecule on a metal surface.Nature. 2011 Nov 9;479(7372):208-11.

3. Zhang J, Lang HP, Yoshikawa G,Gerber C. Optimization of DNAhybridization efficiency by pH-drivennanomechanical bending. Langmuir. 2012Apr 17;28(15):6494-501.

4. Fahy GM, Saur J, Williams RJ. Physicalproblems with the vitrification of largebiological systems. Cryobiology. 1990Oct;27(5):492-510.

5. Best B. The Cryonics Institutes 95thPatient. Long Life. 2009 Sept-Oct; 41(9-10):17-21.

6. Wowk B. Systems for IntermediateTemperature Storage for FractureReduction and Avoidance. 2011 ThirdQuarter;32(3):7-12.

7. Okamoto M, Nakagata N, Toyoda Y.Cryopreservation and transport of mousespermatozoa at -79 degrees C. Exp Anim.2001 Jan;50(1):83-6.

8. Angell CA. Entropy and Fragility inSupercooling Liquids. Journal of Researchof the National Institute of Standardsand Technology. 1997 March-April;102(2):171-185.

9. Mizunoa F, Belieresa J.-P, KuwatabN, Pradelb A, Ribesb M, Angell CA.Highly decoupled ionic and protonicsolid electrolyte systems, in relation toother relaxing systems and their energylandscapes. 2006 Nov;352(42/49):5147-5155.

10. Mazur P. Freezing of living cells:mechanisms and implications. Am JPhysiol. 1984 Sep;247(3 Pt 1):C125-42.

11. Glenister PH, Whittingham DG,Lyon MF. Further studies on the effectof radiation during the storage of frozen8-cell mouse embryos at -196 degrees C. JReprod Fertil. 1984 Jan;70(1):229-34.

12. Weik M, Ravelli RB, Silman I,Sussman JL, Gros P, Kroon J. Specificprotein dynamics near the solvent glasstransition assayed by radiation-inducedstructural changes. Protein Sci. 2001Oct;10(10):1953-61.

13. Meents A, Gutmann S, Wagner A,Schulze-Briese C. Origin and temperaturedependence of radiation damagein biological samples at cryogenictemperatures. Proc Natl Acad Sci U S A.2010 Jan 19;107(3):1094-9.

14. Chinte U, Shah B, Chen YS, PinkertonAA, Schall CA, Hanson BL. Cryogenic(

15. Walters C, Wheeler L, Stanwood PC.Longevity of cryogenically stored seeds.Cryobiology. 2004 Jun;48(3):229-44.

16. Wowk B. Thermodynamic aspectsof vitrification. Cryobiology. 2010Feb;60(1):11-22.

17. Leadbetter AJ; The Thermodynamicand Vibrational Properties of H$_2$O Iceand D$_2$O Ice. 1965 Sep;A287:403-425.

18. Paige DA, Siegler MA, Zhang JA,Hayne PO, Foote EJ, Bennett KA,Vasavada AR, Greenhagen BT, SchofieldJT, McCleese DJ, Foote MC, DeJong E,Bills BG, Hartford W, Murray BC, AllenCC, Snook K, Soderblom LA, Calcutt S,Taylor FW, Bowles NE, Bandfield JL,Elphic R, Ghent R, Glotch TD, WyattMB, Lucey PG. Diviner Lunar Radiometerobservations of cold traps in the Moonssouth polar region. Science. 2010 Oct22;330(6003):479-82.

19. Costanzo JP, Lee RE Jr, DeVries AL,Wang T, Layne JR Jr. Survival mechanismsof vertebrate ectotherms at subfreezingtemperatures: applications in cryomedicine.FASEB J. 1995 Mar;9(5):351-8.

20. Noday DA, Steif PS, Rabin Y.Viscosity of cryoprotective agents nearglass transition: a new device, technique,and data on DMSO, DP6, and VS55. ExpMech. 2009 Oct;49(5):663-672.

21. Merkle, RC. The Molecular Repair ofthe Brain. Cryonics. 1994 Jan;15(1):16-31.

22. Merkle, RC. The Molecular Repair ofthe Brain. Cryonics. 1994 Apr;15(2):18-30.

23. Fennimore AM, Yuzvinsky TD,Han WQ, Fuhrer MS, Cumings J,Zettl A. Rotational actuators based oncarbon nanotubes. Nature. 2003 Jul 24;424(6947):408-10.

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 Misc  Comments Off on The Libertarianism FAQ – catb.org
Dec 142015
 

There are a number of standard questions about libertarianism that have been periodically resurfacing in the politics groups for years. This posting attempts to answer some of them. I make no claim that the answers are complete, nor that they reflect a (nonexistent) unanimity among libertarians; the issues touched on here are tremendously complex. This posting will be useful, however, if it successfully conveys the flavor of libertarian thought and gives some indication of what most libertarians believe.

The word means approximately “believer in liberty”. Libertarians believe in individual conscience and individual choice, and reject the use of force or fraud to compel others except in response to force or fraud. (This latter is called the “Non-Coercion Principle” and is the one thing all libertarians agree on.)

Help individuals take more control over their own lives. Take the state (and other self-appointed representatives of “society”) out of private decisions. Abolish both halves of the welfare/warfare bureaucracy (privatizing real services) and liberate the 7/8ths of our wealth that’s now soaked up by the costs of a bloated and ineffective government, to make us all richer and freer. Oppose tyranny everywhere, whether it’s the obvious variety driven by greed and power-lust or the subtler, well-intentioned kinds that coerce people “for their own good” but against their wills.

Modern libertarianism has multiple roots. Perhaps the oldest is the minimal-government republicanism of the U.S.’s founding revolutionaries, especially Thomas Jefferson and the Anti-Federalists. Adam Smith, John Stuart Mill and the “classical liberals” of the eighteenth and nineteenth centuries were another key influence. More recently, Ayn Rand’s philosophy of “ethical egoism” and the Austrian School of free-market capitalist economics have both contributed important ideas. Libertarianism is alone among 20th-century secular radicalisms in owing virtually nothing to Marxism.

Once upon a time (in the 1800s), “liberal” and “libertarian” meant the same thing; “liberals” were individualist, distrustful of state power, pro-free- market, and opposed to the entrenched privilege of the feudal and mercantilist system. After 1870, the “liberals” were gradually seduced (primarily by the Fabian socialists) into believing that the state could and should be used to guarantee “social justice”. They largely forgot about individual freedom, especially economic freedom, and nowadays spend most of their time justifying higher taxes, bigger government, and more regulation. Libertarians call this socialism without the brand label and want no part of it.

For starters, by not being conservative. Most libertarians have no interest in returning to an idealized past. More generally, libertarians hold no brief for the right wing’s rather overt militarist, racist, sexist, and authoritarian tendencies and reject conservative attempts to “legislate morality” with censorship, drug laws, and obnoxious Bible-thumping. Though libertarians believe in free-enterprise capitalism, we also refuse to stooge for the military-industrial complex as conservatives are wont to do.

Libertarians want to abolish as much government as they practically can. About 3/4 are “minarchists” who favor stripping government of most of its accumulated power to meddle, leaving only the police and courts for law enforcement and a sharply reduced military for national defense (nowadays some might also leave special powers for environmental enforcement). The other 1/4 (including the author of this FAQ) are out-and-out anarchists who believe that “limited government” is a delusion and the free market can provide better law, order, and security than any goverment monopoly.

Also, current libertarian political candidates recognize that you can’t demolish a government as large as ours overnight, and that great care must be taken in dismantling it carefully. For example, libertarians believe in open borders, but unrestricted immigration now would attract in a huge mass of welfare clients, so most libertarians would start by abolishing welfare programs before opening the borders. Libertarians don’t believe in tax-funded education, but most favor the current “parental choice” laws and voucher systems as a step in the right direction.

Progress in freedom and prosperity is made in steps. The Magna Carta, which for the first time put limits on a monarchy, was a great step forward in human rights. The parliamentary system was another great step. The U.S. Constitution and Bill of Rights, which affirmed that even a democratically-elected government couldn’t take away certain inalienable rights of individuals, was probably the single most important advance so far. But the journey isn’t over.

All Libertarians are libertarians, but not the reverse. A libertarian is a person who believes in the Non-Coercion Principle and the libertarian program. A Libertarian is a person who believes the existing political system is a proper and effective means of implementing those principles; specifically, “Libertarian” usually means a member of the Libertarian Party, the U.S.’s largest and most successful third party. Small-ell libertarians are those who consider the Libertarian Party tactically ineffective, or who reject the political system generally and view democracy as “the tyranny of the majority”.

By privatizing them. Taxation is theft — if we must have a government, it should live on user fees, lotteries, and endowments. A government that’s too big to function without resorting to extortion is a government that’s too big, period. Insurance companies (stripped of the state-conferred immunities that make them arrogant) could use the free market to spread most of the risks we now “socialize” through government, and make a profit doing so.

Enforce contracts. Anarcho-libertarians believe the “government” in this sense can be a loose network of rent-a-cops, insurance companies, and for-profit arbitration boards operating under a shared legal code; minarchists believe more centralization would be necessary and envision something much like a Jeffersonian constitional government. All libertarians want to live in a society based (far more than ours now is) on free trade and mutual voluntary contract; the government’s job would be strictly to referee, and use the absolute minimum of force necessary to keep the peace.

Most libertarians are strongly in favor of abortion rights (the Libertarian Party often shows up at pro-rights rallies with banners that say “We’re Pro-Choice on Everything!”). Many libertarians are personally opposed to abortion, but reject governmental meddling in a decision that should be private between a woman and her physician. Most libertarians also oppose government funding of abortions, on the grounds that “pro-lifers” should not have to subsidize with their money behavior they consider to be murder.

Libertarians believe that every human being is entitled to equality before the law and fair treatment as an individual responsible for his or her own actions. We oppose racism, sexism, and sexual-preference bigotry, whether perpetrated by private individuals or (especially) by government. We reject racial discrimination, whether in its ugly traditional forms or in its newer guises as Affirmative Action quotas and “diversity” rules.

We recognize that there will always be bigotry and hatred in the world, just as there will always be fear and stupidity; but one cannot use laws to force understanding any more than one can use laws to force courage or intelligence. The only fair laws are those that never mention the words “black” or “white”; “man” or “woman”; “gay” or “straight”. When people use bigotry as an excuse to commit force or fraud, it is the act itself which is the crime, and deserves punishment, not the motive behind it.

Consistently opposed. The revolutionaries who kicked out King George based their call for insurrection on the idea that Americans have not only the right but the duty to oppose a tyrannical government with force — and that duty implies readiness to use force. This is why Thomas Jefferson said that “Firearms are the American yeoman’s liberty teeth” and, in common with many of the Founding Fathers, asserted that an armed citizenry is the securest guarantee of freedom. Libertarians assert that “gun control” is a propagandist’s lie for “people control”, and even if it worked for reducing crime and violence (which it does not; when it’s a crime to own guns, only criminals own them) it would be a fatally bad bargain.

Libertarians are opposed to any government-enforced limits on free expression whatsoever; we take an absolutist line on the First Amendment. On the other hand, we reject the “liberal” idea that refusing to subsidize a controversial artist is censorship. Thus, we would strike down all anti-pornography laws as unwarranted interference with private and voluntary acts (leaving in place laws punishing, for example, coercion of minors for the production of pornography). We would also end all government funding of art; the label of “artist” confers no special right to a living at public expense.

We believe the draft is slavery, pure and simple, and ought to be prohibited as “involuntary servitude” by the 13th Amendment. Any nation that cannot find enough volunteers to defend it among its citizenry does not deserve to survive.

That all drugs should be legalized. Drug-related crime (which is over 85% of all crime) is caused not by drugs but by drug laws that make the stuff expensive and a monopoly of criminals. This stance isn’t “approving” of drugs any more than defending free speech is “approving” of Nazi propaganda; it’s just realism — prohibition doesn’t work. And the very worst hazard of the drug war may be the expansion of police powers through confiscation laws, “no-knock” warrants and other “anti-drug” measures. These tactics can’t stop the drug trade, but they are making a mockery of our supposed Constitutional freedoms.

Libertarians would leave in place laws against actions which directly endanger the physical safety of others, like driving under the influence of drugs, or carrying a firearm under the influence.

First of all, stop creating them as our government does with military contractors and government-subsidized industries. Second, create a more fluid economic environment in which they’d break up. This happens naturally in a free market; even in ours, with taxes and regulatory policies that encourage gigantism, it’s quite rare for a company to stay in the biggest 500 for longer than twenty years. We’d abolish the limited-liability shield laws to make corporate officers and stockholders fully responsible for a corporation’s actions. We’d make it impossible for corporations to grow fat on “sweetheart deals” paid for with taxpayers’ money; we’d lower the cost of capital (by cutting taxes) and regulatory compliance (by repealing regulations that presume guilt until you prove your innocence), encouraging entrepreneurship and letting economic conditions (rather than government favoritism) determine the optimum size of the business unit.

Who owns the trees? The disastrous state of the environment in what was formerly the Soviet Union illustrates the truism that a resource theoretically “owned” by everyone is valued by no one. Ecological awareness is a fine thing, but without strong private-property rights no one can afford to care enough to conserve. Libertarians believe that the only effective way to save the Earth is to give everyone economic incentives to save their little bit of it.

No. What favors the rich is the system we have now — a fiction of strong property rights covering a reality of property by government fiat; the government can take away your “rights” by eminent domain, condemnation, taxation, regulation and a thousand other means. Because the rich have more money and time to spend on influencing and subverting government, such a system inevitably means they gain at others’ expense. A strong government always becomes the tool of privilege. Stronger property rights and a smaller government would weaken the power elite that inevitably seeks to seduce government and bend it to their own self-serving purposes — an elite far more dangerous than any ordinary criminal class.

No, though abandoning the poor might be merciful compared to what government has done to them. As the level of “anti-poverty” spending in this country has risen, so has poverty. Government bureaucracies have no incentive to lift people out of dependency and every incentive to keep them in it; after all, more poverty means a bigger budget and more power for the bureaucrats. Libertarians want to break this cycle by abolishing all income-transfer programs and allowing people to keep what they earn instead of taxing it away from them. The wealth freed up would go directly to the private sector, creating jobs for the poor, decreasing the demand on private charity, and increasing charitable giving. The results might diminish poverty or they might leave it at today’s levels — but it’s hard to see how they could be any less effective than the present wretched system.

This issue makes minarchists out of a lot of would-be anarchists. One view is that in a libertarian society everyone would be heavily armed, making invasion or usurpation by a domestic tyrant excessively risky. This is what the Founding Fathers clearly intended for the U.S. (the Constitution made no provision for a standing army, entrusting defense primarily to a militia consisting of the entirety of the armed citizenry). It works today in Switzerland (also furnishing one of the strongest anti-gun-control arguments). The key elements in libertarian-anarchist defense against an invader would be: a widespread ideology (libertarianism) that encourages resistance; ready availability of deadly weapons; and no structures of government that an invader can take over and use to rule indirectly. Think about the Afghans, the Viet Cong, the Minutemen — would you want to invade a country full of dedicated, heavily armed libertarians? :-)

Minarchist libertarians are less radical, observe that U.S. territory could certainly be protected effectively with a military costing less than half of the bloated U.S. military budget.

Voluntary cooperation is a wonderful thing, and we encourage it whenever we can. Despite the tired old tag line about “dog-eat-dog competition” and the presence of government intervention, the relatively free market of today’s capitalism is the most spectacular argument for voluntary cooperation in history; millions, even billions of people coordinating with each other every day to satisfy each others’ needs and create untold wealth.

What we oppose is the mockeries politicians and other criminals call cooperation but impose by force; there is no “cooperation” in taxation or the draft or censorship any more than you and I are “cooperating” when I put a gun to your head and steal your wallet.

Think about freedom, and act on your thoughts. Spend your dollars wisely. Oppose the expansion of state power. Promote “bottom-up” solutions to public problems, solutions that empower individuals rather than demanding intervention by force of government. Give to private charity. Join a libertarian organization; the Libertarian Party, or the Advocates for Self-Government, or the Reason Foundation. Start your own business; create wealth and celebrate others who create wealth. Support voluntary cooperation.

No one knows. Your author thinks libertarianism is about where constitutional republicanism was in 1750 — a solution waiting for its moment, a toy of political theorists and a few visionaries waiting for the people and leaders who can actualize it. The collapse of Communism and the triumph of capitalist economics will certainly help, by throwing central planning and the “nanny state” into a disrepute that may be permanent. Some libertarians believe we are headed for technological and economic changes so shattering that no statist ideology can possibly survive them (in particular, most of the nanotechnology “underground” is hard-core libertarian). Only time will tell.

There’s an excellent FAQ on anarchist theory and history at http://www.princeton.edu/~bdcaplan/anarfaq.htm with links to many other Web documents.

Peter McWilliams’s wise and funny book Ain’t Nobody’s Business If You Do is worth a read.

Friedman, Milton and Friedman, Rose, Free to Choose: A Personal Statement (Harcourt Brace Jovanovich, 1980).

Hayek, Friedrich A. The Constitution of Liberty (Henry Regnery Company, 1960).

Hayek, Friedrich A. The Road to Serfdom (University of Chicago Press, 1944).

Lomasky, Loren, Persons, Rights, and the Moral Community (Oxford University Press, 1987).

Machan, Tibor, Individuals and Their Rights (Open Court, 1989).

Murray, Charles A. In Pursuit of Happiness and Good Government (Simon and Schuster, 1988).

Rasmussen, Douglas B. and Den Uyl, Douglas J., Liberty and Nature (Open Court, 1991).

Rothbard, Murray N. For a New Liberty: The Libertarian Manifesto, 2nd ed (Macmillan, 1978).

Reason. Editorial contact: 3415 S. Sepulveda Blvd., Suite 400, Los Angeles, CA 90034. Subscriptions: PO Box 526, Mt. Morris, IL 61054

Liberty. PO Box 1167, Port Townsend, WA 98368.

1202 N. Tenn. St., Suite 202 Cartersville, GA 30120

3415 S. Sepulveda Blvd., Suite 400, Los Angeles, CA 90034

1000 Massachusetts Ave, NW, Washington, DC 20001-5403

938 Howard St. San Francisco, Suite 202, CA 94103

818 S. Grand Ave., Suite 202, Los Angeles, CA 90017

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Libertarianism: What Everyone Needs to Know

 Misc  Comments Off on Libertarianism: What Everyone Needs to Know
Nov 022015
 

Historically, Americans have seen libertarians as far outside the mainstream, but with the rise of the Tea Party movement, libertarian principles have risen to the forefront of Republican politics. But libertarianism is more than the philosophy of individual freedom and unfettered markets that Republicans have embraced. Indeed, as Jason Brennan points out, libertarianism is a quite different–and far richer–system of thought than most of us suspect.

In this timely new entry in Oxford’s acclaimed series What Everyone Needs to Know, Brennan offers a nuanced portrait of libertarianism, proceeding through a series of questions to illuminate the essential elements of libertarianism and the problems the philosophy addresses, including such topics as the Value of Liberty, Human Nature and Ethics, Economic Liberty, Civil Rights, Social Justice and the Poor, Government and Democracy, and Contemporary Politics. Brennan asks the most fundamental and challenging questions: What do Libertarians think liberty is? Do libertarians think everyone should be selfish? Are libertarians just out to protect the interests of big business? What do libertarians think we should do about racial injustice? What would libertarians do about pollution? Are Tea Party activists true libertarians? As he sheds light on libertarian beliefs, Brennan overturns numerous misconceptions. Libertarianism is not about simple-minded paranoia about government, he writes. Rather, it celebrates the ideal of peaceful cooperation among free and equal people. Libertarians believe that the rich always capture political power; they want to minimize the power available to them in order to protect the weak. Brennan argues that libertarians are, in fact, animated by benevolence and a deep concern for the poor.

Clear, concise, and incisively written, this volume explains a vitally important philosophy in American history–and a potent force in contemporary politics.

What Everyone Needs to Know is a registered trademark of Oxford University Press.

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Annenberg Classroom – Fifth Amendment

 Fifth Amendment  Comments Off on Annenberg Classroom – Fifth Amendment
Oct 192015
 

Fifth Amendment – The Text No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Fifth Amendment – The Meaning Grand Jury Protection: The Fifth Amendment requirement that serious federal criminal charges be started by a grand jury (a group of citizens who hear evidence from a prosecutor about potential crimes) is rooted in English common law. Its basic purpose is to provide a fair method for beginning criminal proceedings against those accused of committing crimes. Grand jury charges can be issued against anyone except members of the military, who are instead subject to courts-martial in the military justice system.

To avoid giving government unchecked powers, grand jurors are selected from the general population and their work, conducted in secret, is not hampered by rigid rules about the type of evidence that can be heard. In fact, grand jurors can act on their own knowledge and are free to start criminal proceedings on any information that they think relevant.

It is these broad powers that have led some critics to charge that grand juries are little more than puppets of prosecutors. Grand juries also serve an investigative role-because grand juries can compel witnesses to testify in the absence of their lawyers.

A significant number of states do not use grand juries, instead they begin criminal proceedings using informations or indictments. The right to a grand jury is one of only a few protections in the Bill of Rights that has not been applied to the states by the Fourteenth Amendment.

Protection against Double Jeopardy: This portion of the Fifth Amendment protects individuals from being twice put in jeopardy of life or limbthat is, in danger of being punished more than once for the same criminal act. The U.S. Supreme Court has interpreted the double jeopardy clause to protect against a second prosecution for the same offense after acquittal or conviction and against multiple punishments for the same crime. Like other provisions in the Bill of Rights that affect criminal prosecutions, the double jeopardy clause is rooted in the idea that the government should not have unlimited power to prosecute and punish criminal suspects. Rather, the government gets only one chance to make its case.

Right against Self-Incrimination: This provision of the Fifth Amendment is probably the best-known of all constitutional rights, as it appears frequently on television and in movieswhether in dramatic courtroom scenes (I take the Fifth!) or before the police question someone in their custody (You have the right to remain silent. Anything you do say can be used against you in a court of law.). The right protects a person from being forced to reveal to the police, prosecutor, judge, or jury any information that might subject him or her to criminal prosecution. Even if a person is guilty of a crime, the Fifth Amendment demands that the prosecutors come up with other evidence to prove their case. If police violate the Fifth Amendment by forcing a suspect to confess, a court may suppress the confession, that is, prohibit it from being used as evidence at trial.

The right to remain silent also means that a defendant has the right not to take the witness stand at all during his or her trial, and that the prosecutor cannot point to the defendants silence as evidence of guilt. There are, however, limitations on the right against self-incrimination. For example, it applies only to testimonial acts, such as speaking, nodding, or writing. Other personal information that might be incriminating, like blood or hair samples, DNA or fingerprints, may be used as evidence. Similarly, incriminating statements that an individual makes voluntarilysuch as when a suspect confesses to a friend or writes in a personal diaryare not protected.

Right to Due Process: The right to due process of law has been recognized since 1215, when the Magna Carta (the British charter) was adopted. Historically, the right protected people accused of crimes from being imprisoned without fair procedures (like indictments and trials, where they would have an opportunity to confront their accusers). The right of due process has grown in two directions: It affords individuals a right to a fair process (known as procedural due process) and a right to enjoy certain fundamental liberties without governmental interference (known as substantive due process). The Fifth Amendments due process clause applies to the federal governments conduct. In 1868 the adoption of the Fourteenth Amendment expanded the right of due process to include limits on the actions of state governments.

Today, court decisions interpreting the Fourteenth Amendments due process right generally apply to the Fifth Amendment and vice versa.

Takings Clause: The takings clause of the Fifth Amendment strikes a balance between the rights of private property owners and the right of the government to take that property for a purpose that benefits the public at large. When the government takes private property, it is required to pay just compensation to the property owner for his or her loss. The takings power of the government, sometimes referred to as the power of eminent domain, may be used for a wide range of valid public uses (for a highway or a park, for example). For the most part, when defining just compensation, courts try to reach some approximation of market value.

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Online Debate: Human genetic engineering is a good thing …

 Human Genetic Engineering  Comments Off on Online Debate: Human genetic engineering is a good thing …
Oct 162015
 

My argument is that genetic engineering, and specifically human genetic engineering is a good thing.

I believe that human genetic engineering (HGE) can benefit human kind in an endless number of ways including but not limited to :

*Increased lifespan *Decreasing disease *Making humans happier *Making humans stronger *Making humans smarter *Making humans better looking (Yes, even this can be done and is good)

I will let my opponent make the first actual argument and I will then, after my opponent has made their argument, go into much further detail on my own argument as well as addressing theirs. So, I leave it to any challenger to argue against my initial statements and my general argument.

Con, I await your response. :)

Increased lifespan-If HGE did increase human lifespan why would us as a society want that? Thousands of people are brain dead and have you ever heard of this? http://en.wikipedia.org…

Making humans happier-I know many kids who are made fun of for being gay,black, Mormon etc.So if I was a clone (or altered) I am certain I would be made fun of way more than anyone else.Also kids have trouble when they are adopted, and can not find their family.If I was a clone, and I didn’t even have a family?I would have no real family and thus no reason to be happy.

Better looking- hhttp://gorillasafariadventure.com… http://alpha-mag.blogspot.com… One is real……

At first, since as everything is economic, the rich people would be the first to try and use HGH (as they use HRT today more commonly). How would we know it works? We would know that it would work through scientific testing, lab testing, finally human testing. Etc. It would be a long process. Eventually everyone would be able to afford it as technology improves.

The upper class having exclusive rights to these technologies would last a few decades at most. Perhaps less.

I do not support cruelty to animals, but animal testing happens and it can prove very beneficial to humanity. Would I sacrifice some animals for humanity getting smarter and better off in the long run? Sure. Why? Because, the smarter we get the more we will understand animals and, in the long run, treat them better…

Overpopulation is a problem today purely because we, as humans, aren’t smart enough to control ourselves and our reproductive abilities. We can’t manage ourselves. With increased intelligence, this would no longer be a problem. Science has proven that higher I.Q. and education leads to less children, and having children later.

Would a child be picked on for being altered? I can’t imagine how they would, since no one would even have to know. Moreover, in time, nearly everyone will have genetic alterations so it won’t matter. I, for one, do not believe that we should refrain from using genetic therapy to cure depression, make people happy, make them live longer, healthier, etc. all because there is some chance some one might be made fun of somewhere. It seems nonsensical to me.

I don’t know why you are bringing cloning into the issue. I never mentioned cloning.

So from what you said I really can not see how you do not support animal cruelty? Its better off in the “long run” for animals? Do you Eccedustin not understand an animal?That they are an organism just like US.Non human animals experience sensations just like we do. They too are strong,intelligent, and evolutionary. They to are capable of adaptation, and can not adapt in a cage just so they can be experimented on because we are to ignorant to solve our problems that WE created. Not them. How will pain and suffering benefit animals? The more HGE develops the more tests need to be done. Proving that more animals will be needed thus proving that “in the long run” is not true and you support animal cruelty. It seems you are a typical speciest willing to hurt anything just so you can “look better” I will be waiting for your stuck up response

Any technology that comes up will come up through the basic process of capitalism. If you look at technologies in the past, all of them were exclusively for the rich. This, however, does not last long. Cars, Computers, Refrigerators, etc. We’ve all got them now, even the lower class for the most part. The same would be true of Genetic engineering. The technology would, over time, become available to EVERYONE. So I do not believe that the argument is relevant or valid.

I understand and agree with you that animals, beside us humans, have feelings and emotions. That is not the issue here. The issue is that most animal cruelty is not the result of experiments from scientists but rather from ignorant people who abuse animals because they are to stupid to know any better. With increased intelligence, people will know about animals more and be empathetic towards them more. So, in the long run, it would greatly benefit animal kind.

If you look at it another way, Humans could easily become vegetarians with genetic engineering. Removing any possible side effects from purely Vegetarian diets (if there are any) would result in even less animal cruelty.

The thing about cars, computers, refrigerators, you can mass produce them. Can you train as many HGE surgeons as X-ray technicians in the next fifty years when we barely understand it right now? Logically lower class, non high school graduates can make cars, but not perform gene transplants. Which means that a whole new branch of schooling is going to be created just to support that. Chemo therapy can cost up to 30,000 dollars for just one session? Not many even lower upper class can afford that. Insurance wouldn’t even cover it like it does for most things.

Those ignorant people are the scientists. Please watch that video.

Do you want that happening just so you can look better? Just so that we can solve the problems WE created? I really have no idea what you are talking about when you say “increased intelligence about animals.” Native Americans or the first hieroglyphics were of animals. In ancient Mesopotamia they treated animals way better than we do now? Or the Native Americans doing ceremony’s for all the animals they killed? Did they not understand animals? Have we just become more ignorant? In your last statement you said “that animals, beside us humans, have feelings and emotions.” So that means animals are almost like us? Really I see no logic in “increasing our intelligence” will help us treat animals better. We will want more,build more, need more, kill more because we want to know how to make money!

Vegetarians live approximately seven years longer than people on a vegetarian diet. So no we would find ways to make meat better for us and thus eat more animals.

I think that HGH won’t require surgeons as much as a single injection in the future. We would be able to mass produce that as well, or better, as we can mass produce anti viruses, etc.

Historically ALL technology has become more available and cheaper as time goes by. Chemo therapy will beocme cheaper and more available in the future as well.

Your arguments are nonsensical. You say that because Genetic engineering might be excluded from the lower classes at first, it is a bad idea to produce it? That is equal to saying that because Cancer therapy will be excluded from the lower classes at first, we shouldn’t pursue it. It is a bad argument pure and simple.

Most of the genetic problems that exist today are not problems that “we created”. Aging, disease, death, all have always existed. Moreover, even if “we” are the problem then genetic engineering could be the solution to that as well since it could change who “we” are inherently.

Did the native Americans or Mesopotamians treat animals better than we do today? Of course not. Native Americans ate Dogs, horses, etc. commonly. And in no culture in the past did they ever have all of the laws protecting animals that we have today. How many animal rights laws did Mesopotamians have?

I argue that higher intelligence would equal better treatment of animals. I argue this because most of the animal abuse that we see today is done by uneducated ignorant people.

Certainly, there are examples of scientists mistreating animals. However, on average, Scientists are very careful to reduce suffering when they do experiments on animals.

I personally do not believe that animal testing should be done unless totally necessary.

Also, with a higher I.Q. we could easily find ways to “produce” meat without even killing animals. It is all possible, we just can’t do it yet.

I have searched the whole HGE databases and none of these places say that HGE would be single injection? Does altering your genotype into a new phenotype sound like an easy thing? That you could get at your local Walgreen’s, and walk out with a batman sticker?

No I think that things always start in the upper class, and work there way down like you have said numerous times. But, with HGE like I said it would create a bigger poverty gap. You said it would take a few decades to get to the middle class, well a generation is twenty five years. So three generations could pass before they had access to it while there richer peers look socially better, were smarter, so they could have a huggeeee advantage over the other classes. The rich would create bigger Corporatocracy’s thus creating more $20 an hour jobs for all the non-hge now grown up humans to have.

Do you think HGE would stop wars? Do you think that changing my phenotype will stop me and everyone from being greedy? Are you serious? That if some fat guy gets a new phenotype he will say “screw McDonalds, lets eat SALAD!”

I have taken an Native American culture class in college and we spent four weeks, yes… Four weeks talking about animals and spiritual dances, ceremony’s the would do for ONE bison? When was the last time you danced around and blessed, and ate every single piece of a whole animal? Nothing was wasting with them. Saying native Americans didn’t treat animals well? They treated them better because they cherished, and loved them like brothers.

1. My opponent continues to attack me, claiming I am an “elitist” and that I support cruelty to animals. Neither are true. I am not an elitist because I do not support elitism. Rather, it is true elitists will benefit short term from (ALL) technological advances, this is no argument against them. In the long term they will be available to us all. Also, animal experiments go on and will go on regardless. Should people supporting drug research be labeled as supporting animal cruelty?

Absurd.

2. I do not know how or when or in what form HGE will take. I am not a futurist. All I am arguing is that it will invariably be a good thing, in the long run.

3. It is absurd to claim that only rich people will receive genetic therapy. There will no doubt be funds for people with diseases to get it, etc. Also, I’m sure people would be more than willing to improve their entire genome if it involves taking out a loan or something. It would be an investment.

4. Yes, Our genes determine so many things including how we interact with other people. Aggression, intelligence, empathy, rational thinking, etc. Even non genetic factors would quickly be changed once genes are altered.

5. So the Native Americans danced around and worshiped the Bison. This doesn’t mean they didn’t kill it. And the Bison holds a special distinction in Native American culture, especially certain areas. They didn’t treat all animals like that either.

In summary, Genetic therapy would be a great thing for human kind. All of the bad things we humans have in us, aggression, stupidity, disease, illness, lack of empathy, etc. all have strong genetic components. Sure, Nurture has a lot to do with it but if we take care of the nature part then we are half way there. Moreover, If you closely examine them, all of Con’s arguments fall apart. Con is arguing AGAINST scientific progress for empty and pointless reasons.

2. Then how can you even debate on this topic or make a reference to that in a debate. You are just bull shitting apparently.

3. Yes like all those funds that help all the people with cancer. If those “funds” were exist there wouldn’t be people at home with stage four cancer when they could at least receive treatment.

4. So you are willing to go against nature (or god if you believe in a higher power) to be able to become more empathetic? Is that hard to love? Are you that big of a savage that you can’t control yourself or can’t learn things for yourself?

5. Yes, all animals that were killed were used fully. Of course if they killed a rat they didn’t dance around it but, they would use it all.

In summary pro has the more civil debate here. I understand that we all want to be perfect, but why not take the cards we were dealt, and succeed. Cheaters never prosper.

See the original post here:
Online Debate: Human genetic engineering is a good thing …

Second Amendment – National Constitution Center

 Second Amendment  Comments Off on Second Amendment – National Constitution Center
Oct 122015
 

The Second Amendment

Modern debates about the Second Amendment have focused on whether it protects a private right of individuals to keep and bear arms, or a right that can be exercised only through militia organizations like the National Guard. This question, however, was not even raised until long after the Bill of Rights was adopted.

Many in the Founding generation believed that governments are prone to use soldiers to oppress the people. English history suggested that this risk could be controlled by permitting the government to raise armies (consisting of full-time paid troops) only when needed to fight foreign adversaries. For other purposes, such as responding to sudden invasions or other emergencies, the government could rely on a militia that consisted of ordinary civilians who supplied their own weapons and received some part-time, unpaid military training.

The onset of war does not always allow time to raise and train an army, and the Revolutionary War showed that militia forces could not be relied on for national defense. The Constitutional Convention therefore decided that the federal government should have almost unfettered authority to establish peacetime standing armies and to regulate the militia.

This massive shift of power from the states to the federal government generated one of the chief objections to the proposed Constitution. Anti-Federalists argued that the proposed Constitution would take from the states their principal means of defense against federal usurpation. The Federalists responded that fears of federal oppression were overblown, in part because the American people were armed and would be almost impossible to subdue through military force.

Implicit in the debate between Federalists and Anti-Federalists were two shared assumptions. First, that the proposed new Constitution gave the federal government almost total legal authority over the army and militia. Second, that the federal government should not have any authority at all to disarm the citizenry. They disagreed only about whether an armed populace could adequately deter federal oppression.

The Second Amendment conceded nothing to the Anti-Federalists desire to sharply curtail the military power of the federal government, which would have required substantial changes in the original Constitution. Yet the Amendment was easily accepted because of widespread agreement that the federal government should not have the power to infringe the right of the people to keep and bear arms, any more than it should have the power to abridge the freedom of speech or prohibit the free exercise of religion.

Much has changed since 1791. The traditional militia fell into desuetude, and state-based militia organizations were eventually incorporated into the federal military structure. The nations military establishment has become enormously more powerful than eighteenth century armies. We still hear political rhetoric about federal tyranny, but most Americans do not fear the nations armed forces and virtually no one thinks that an armed populace could defeat those forces in battle. Furthermore, eighteenth century civilians routinely kept at home the very same weapons they would need if called to serve in the militia, while modern soldiers are equipped with weapons that differ significantly from those generally thought appropriate for civilian uses. Civilians no longer expect to use their household weapons for militia duty, although they still keep and bear arms to defend against common criminals (as well as for hunting and other forms of recreation).

The law has also changed. While states in the Founding era regulated gunsblacks were often prohibited from possessing firearms and militia weapons were frequently registered on government rollsgun laws today are more extensive and controversial. Another important legal development was the adoption of the Fourteenth Amendment. The Second Amendment originally applied only to the federal government, leaving the states to regulate weapons as they saw fit. Although there is substantial evidence that the Privileges or Immunities Clause of the Fourteenth Amendment was meant to protect the right of individuals to keep and bear arms from infringement by the states, the Supreme Court rejected this interpretation in United States v. Cruikshank (1876).

Until recently, the judiciary treated the Second Amendment almost as a dead letter. In District of Columbia v. Heller (2008), however, the Supreme Court invalidated a federal law that forbade nearly all civilians from possessing handguns in the nations capital. A 54 majority ruled that the language and history of the Second Amendment showed that it protects a private right of individuals to have arms for their own defense, not a right of the states to maintain a militia.

The dissenters disagreed. They concluded that the Second Amendment protects a nominally individual right, though one that protects only the right of the people of each of the several States to maintain a well-regulated militia. They also argued that even if the Second Amendment did protect an individual right to have arms for self-defense, it should be interpreted to allow the government to ban handguns in high-crime urban areas.

Two years later, in McDonald v. City of Chicago (2010), the Court struck down a similar handgun ban at the state level, again by a 54 vote. Four Justices relied on judicial precedents under the Fourteenth Amendments Due Process Clause. Justice Thomas rejected those precedents in favor of reliance on the Privileges or Immunities Clause, but all five members of the majority concluded that the Fourteenth Amendment protects against state infringement the same individual right that is protected from federal infringement by the Second Amendment.

Notwithstanding the lengthy opinions in Heller and McDonald, they technically ruled only that government may not ban the possession of handguns by civilians in their homes. Heller tentatively suggested a list of presumptively lawful regulations, including bans on the possession of firearms by felons and the mentally ill, bans on carrying firearms in sensitive places such as schools and government buildings, laws restricting the commercial sale of arms, bans on the concealed carry of firearms, and bans on weapons not typically possessed by law-abiding citizens for lawful purposes. Many issues remain open, and the lower courts have disagreed with one another about some of them, including important questions involving restrictions on carrying weapons in public.

The right to keep and bear arms is a lot like the right to freedom of speech. In each case, the Constitution expressly protects a liberty that needs to be insulated from the ordinary political process.

Gun control is as much a part of the Second Amendment as the right to keep and bear arms. The text of the amendment, which refers to a well regulated Militia, suggests as much.

Not a Second Class Right: The Second Amendment Today by Nelson Lund

The right to keep and bear arms is a lot like the right to freedom of speech. In each case, the Constitution expressly protects a liberty that needs to be insulated from the ordinary political process. Neither right, however, is absolute. The First Amendment, for example, has never protected perjury, fraud, or countless other crimes that are committed through the use of speech. Similarly, no reasonable person could believe that violent criminals should have unrestricted access to guns, or that any individual should possess a nuclear weapon.

Inevitably, courts must draw lines, allowing government to carry out its duty to preserve an orderly society, without unduly infringing the legitimate interests of individuals in expressing their thoughts and protecting themselves from criminal violence. This is not a precise science or one that will ever be free from controversy.

One judicial approach, however, should be unequivocally rejected. During the nineteenth century, courts routinely refused to invalidate restrictions on free speech that struck the judges as reasonable. This meant that speech got virtually no judicial protection. Government suppression of speech can usually be thought to serve some reasonable purpose, such as reducing social discord or promoting healthy morals. Similarly, most gun control laws can be viewed as efforts to save lives and prevent crime, which are perfectly reasonable goals. If thats enough to justify infringements on individual liberty, neither constitutional guarantee means much of anything.

During the twentieth century, the Supreme Court finally started taking the First Amendment seriously. Today, individual freedom is generally protected unless the government can make a strong case that it has a real need to suppress speech or expressive conduct, and that its regulations are tailored to that need. The legal doctrines have become quite complex, and there is room for disagreement about many of the Courts specific decisions. Taken as a whole, however, this body of case law shows what the Court can do when it appreciates the value of an individual right enshrined in the Constitution.

The Second Amendment also raises issues about which reasonable people can disagree. But if the Supreme Court takes this provision of the Constitution as seriously as it now takes the First Amendment, which it should do, there will be some easy issues as well.

District of Columbia v. Heller (2008) is one example. The right of the people protected by the Second Amendment is an individual right, just like the right[s] of the people protected by the First and Fourth Amendments. The Constitution does not say that the Second Amendment protects a right of the states or a right of the militia, and nobody offered such an interpretation during the Founding era. Abundant historical evidence indicates that the Second Amendment was meant to leave citizens with the ability to defend themselves against unlawful violence. Such threats might come from usurpers of governmental power, but they might also come from criminals whom the government is unwilling or unable to control.

McDonald v. City of Chicago (2010) was also an easy case under the Courts precedents. Most other provisions of the Bill of Rights had already been applied to the states because they are deeply rooted in this Nations history and tradition. The right to keep and bear arms clearly meets this test.

The text of the Constitution expressly guarantees the right to bear arms, not just the right to keep them. The courts should invalidate regulations that prevent law-abiding citizens from carrying weapons in public, where the vast majority of violent crimes occur. First Amendment rights are not confined to the home, and neither are those protected by the Second Amendment.

Nor should the government be allowed to create burdensome bureaucratic obstacles designed to frustrate the exercise of Second Amendment rights. The courts are vigilant in preventing government from evading the First Amendment through regulations that indirectly abridge free speech rights by making them difficult to exercise. Courts should exercise the same vigilance in protecting Second Amendment rights.

Some other regulations that may appear innocuous should be struck down because they are little more than political stunts. Popular bans on so-called assault rifles, for example, define this class of guns in terms of cosmetic features, leaving functionally identical semi-automatic rifles to circulate freely. This is unconstitutional for the same reason that it would violate the First Amendment to ban words that have a French etymology, or to require that French fries be called freedom fries.

In most American states, including many with large urban population centers, responsible adults have easy access to ordinary firearms, and they are permitted to carry them in public. Experience has shown that these policies do not lead to increased levels of violence. Criminals pay no more attention to gun control regulations than they do to laws against murder, rape, and robbery. Armed citizens, however, prevent countless crimes and have saved many lives. Whats more, the most vulnerable peopleincluding women, the elderly, and those who live in high crime neighborhoodsare among the greatest beneficiaries of the Second Amendment. If the courts require the remaining jurisdictions to stop infringing on the constitutional right to keep and bear arms, their citizens will be more free and probably safer as well.

The Reasonable Right to Bear Arms by Adam Winkler

Gun control is as much a part of the Second Amendment as the right to keep and bear arms. The text of the amendment, which refers to a well regulated Militia, suggests as much. As the Supreme Court correctly noted in District of Columbia v. Heller (2008), the militia of the founding era was the body of ordinary citizens capable of taking up arms to defend the nation. While the Founders sought to protect the citizenry from being disarmed entirely, they did not wish to prevent government from adopting reasonable regulations of guns and gun owners.

Although Americans today often think that gun control is a modern invention, the Founding era had laws regulating the armed citizenry. There were laws designed to ensure an effective militia, such as laws requiring armed citizens to appear at mandatory musters where their guns would be inspected. Governments also compiled registries of civilian-owned guns appropriate for militia service, sometimes conducting door-to-door surveys. The Founders had broad bans on gun possession by people deemed untrustworthy, including slaves and loyalists. The Founders even had laws requiring people to have guns appropriate for militia service.

The wide range of Founding-era laws suggests that the Founders understood gun rights quite differently from many people today. The right to keep and bear arms was not a libertarian license for anyone to have any kind of ordinary firearm, anywhere they wanted. Nor did the Second Amendment protect a right to revolt against a tyrannical government. The Second Amendment was about ensuring public safety, and nothing in its language was thought to prevent what would be seen today as quite burdensome forms of regulation.

The Founding-era laws indicate why the First Amendment is not a good analogy to the Second. While there have always been laws restricting perjury and fraud by the spoken word, such speech was not thought to be part of the freedom of speech. The Second Amendment, by contrast, unambiguously recognizes that the armed citizenry must be regulatedand regulated well. This language most closely aligns with the Fourth Amendment, which protects a right to privacy but also recognizes the authority of the government to conduct reasonable searches and seizures.

The principle that reasonable regulations are consistent with the Second Amendment has been affirmed throughout American history. Ever since the first cases challenging gun controls for violating the Second Amendment or similar provisions in state constitutions, courts have repeatedly held that reasonable gun lawsthose that dont completely deny access to guns by law-abiding peopleare constitutionally permissible. For 150 years, this was the settled law of the landuntil Heller.

Heller, however, rejected the principle of reasonableness only in name, not in practice. The decision insisted that many types of gun control laws are presumptively lawful, including bans on possession of firearms by felons and the mentally ill, bans on concealed carry, bans on dangerous and unusual weapons, restrictions on guns in sensitive places like schools and government buildings, and commercial sale restrictions. Nearly all gun control laws today fit within these exceptions. Importantly, these exceptions for modern-day gun laws unheard of in the Founding era also show that lawmakers are not limited to the types of gun control in place at the time of the Second Amendments ratification.

In the years since Heller, the federal courts have upheld the overwhelming majority of gun control laws challenged under the Second Amendment. Bans on assault weapons have been consistently upheld, as have restrictions on gun magazines that hold more than a minimum number of rounds of ammunition. Bans on guns in national parks, post offices, bars, and college campuses also survived. These decisions make clear that lawmakers have wide leeway to restrict guns to promote public safety so long as the basic right of law-abiding people to have a gun for self-defense is preserved.

Perhaps the biggest open question after Heller is whether the Second Amendment protects a right to carry guns in public. While every state allows public carry, some states restrict that right to people who can show a special reason to have a gun on the street. To the extent these laws give local law enforcement unfettered discretion over who can carry, they are problematic. At the same time, however, many constitutional rights are far more limited in public than in the home. Parades can be required to have a permit, the police have broader powers to search pedestrians and motorists than private homes, and sexual intimacy in public places can be completely prohibited.

The Supreme Court may yet decide that more stringent limits on gun control are required under the Second Amendment. Such a decision, however, would be contrary to the text, history, and tradition of the right to keep and bear arms.

More here:
Second Amendment – National Constitution Center

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Political freedom – Wikipedia, the free encyclopedia

 Freedom  Comments Off on Political freedom – Wikipedia, the free encyclopedia
Oct 052015
 

“Freedoms” redirects here. For other uses, see Freedom.

Political freedom (also known as political autonomy or political agency) is a central concept in history and political thought and one of the most important (real or ideal) features of democratic societies.[1] It has been described as a relationship free of oppression[2] or coercion;[3] the absence of disabling conditions for an individual and the fulfillment of enabling conditions;[4] or the absence of life conditions of compulsion, e.g. economic compulsion, in a society.[5] Although political freedom is often interpreted negatively as the freedom from unreasonable external constraints on action,[6] it can also refer to the positive exercise of rights, capacities and possibilities for action, and the exercise of social or group rights.[7] The concept can also include freedom from “internal” constraints on political action or speech (e.g. social conformity, consistency, or “inauthentic” behaviour.)[8] The concept of political freedom is closely connected with the concepts of civil liberties and human rights, which in democratic societies are usually afforded legal protection from the state.

Various groups along the political spectrum naturally differ on what they believe constitutes “true” political freedom.

Left wing political philosophy generally couples the notion of freedom with that of positive liberty, or the enabling of a group or individual to determine their own life or realize their own potential. Freedom, in this sense, may include freedom from poverty, starvation, treatable disease, and oppression, as well as freedom from force and coercion, from whomever they may issue.

Friedrich Hayek, a well-known classical liberal, criticized this as a misconception of freedom:

[T]he use of “liberty” to describe the physical “ability to do what I want”, the power to satisfy our wishes, or the extent of the choice of alternatives open to us… has been deliberately fostered as part of the socialist argument… the notion of collective power over circumstances has been substituted for that of individual liberty.[9]

Anarcho-socialists see negative and positive liberty as complementary concepts of freedom. Such a view of rights may require utilitarian trade-offs, such as sacrificing the right to the product of one’s labor or freedom of association for less racial discrimination or more subsidies for housing. Social anarchists describe the negative liberty-centric view endorsed by capitalism as “selfish freedom”.[10]

Anarcho-capitalists see negative rights as a consistent system. Ayn Rand described it as “a moral principle defining and sanctioning a mans freedom of action in a social context. To such libertarians, positive liberty is contradictory, since so-called rights must be traded off against each other, debasing legitimate rights which, by definition, trump other moral considerations. Any alleged “right” which calls for an end result (e.g. housing, education, medical services) produced by people is, in effect, a purported “right” to enslave others.

Some notable philosophers, such as Alasdair MacIntyre, have theorized freedom in terms of our social interdependence with other people.[11]

According to political philosopher Nikolas Kompridis, the pursuit of freedom in the modern era can be broadly divided into two motivating ideals: freedom as autonomy or independence; and freedom as the ability to cooperatively initiate a new beginning.[12]

Political freedom has also been theorized in its opposition to (and a condition of) “power relations”, or the power of “action upon actions,” by Michel Foucault.[13] It has also been closely identified with certain kinds of artistic and cultural practice by Cornelius Castoriadis, Antonio Gramsci, Herbert Marcuse, Jacques Ranciere, and Theodor Adorno.

Environmentalists often argue that political freedoms should include some constraint on use of ecosystems. They maintain there is no such thing, for instance, as “freedom to pollute” or “freedom to deforest” given that such activities create negative externalities. The popularity of SUVs, golf, and urban sprawl has been used as evidence that some ideas of freedom and ecological conservation can clash. This leads at times to serious confrontations and clashes of values reflected in advertising campaigns, e.g. that of PETA regarding fur.

John Dalberg-Acton stated that “The most certain test by which we judge whether a country is really free is the amount of security enjoyed by minorities.”[14]

Hannah Arendt traces the origins of the concept of freedom to the practice of politics in ancient Greece. According to her study, the concept of freedom was historically inseparable from political action. Politics could only be practiced by those who had freed themselves from the necessities of life, so that they could attend to the realm of political affairs. According to Arendt, the concept of freedom became associated with the Christian notion of freedom of the will, or inner freedom, around the 5th century C.E. and since then, freedom as a form of political action has been neglected, even though, as she says, freedom is “the raison d’tre of politics.”[15]

Arendt says that political freedom is historically opposed to sovereignty or will-power, since in ancient Greece and Rome, the concept of freedom was inseparable from performance, and did not arise as a conflict between the “will” and the “self.” Similarly, the idea of freedom as freedom from politics is a notion that developed in modern times. This is opposed to the idea of freedom as the capacity to “begin anew,” which Arendt sees as a corollary to the innate human condition of natality, or our nature as “new beginnings and hence beginners.”

In Arendt’s view, political action is an interruption of automatic process, either natural or historical. The freedom to begin anew is thus an extension of “the freedom to call something into being which did not exist before, which was not given, not even as an object of cognition or imagination, and which therefore, strictly speaking, could not be known.”

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Political freedom – Wikipedia, the free encyclopedia

 Posted by at 7:44 pm  Tagged with:

Charlotte SEO Experts | #1 Experts in Digital Marketing

 SEO  Comments Off on Charlotte SEO Experts | #1 Experts in Digital Marketing
Oct 052015
 

Were an SEO company based in Charlotte, North Carolina (as if the name wasnt obvious enough, eh?)

We offer a range of services to our clients, including:

What is SEO?

We learned SEO from the Miami SEO gurus, Webris (http://vimeo.com/106689668) Yes, we like them so much that we even gave them a link on OUR HOMEPAGE!

Webris is owned by Ryan Stewart, a digital marketing whiz with over 10 years of experience working as one of the best SEO companies in Miami.

SEO is the process of improving your websites rankings in search engines. This is extremely important because of the amount of online traffic and searches that take place on a daily basis.

For example Charlotte SEO services gets typed into Google 1,000 times EACH MONTH! Imagine the power of ranking first for that search team because those are people that are seeking your exact services.

The process is difficult. We first need to do a thorough on page evaluation of your website. Then we need to check the HTML and coding to make sure that everything is OK.

After that we begin by creating social media signals on networks like Facebook, Twitter and Pinterest. These are extremely important and should NOT be overlooked because of the impact that social media has on our every day lives. Search engines are reading these signals with increasing importance and weight.

Next comes the most debated part link building. We offer white hat link building services that get the web taking note of your website. Some of these include Press releases, web 2.0s, directory submissions and a variety of other link building tactics. We also utilize partner websites to build high quality links on there as well.

After that we build up your website and make it look fancy so when actual visitors come to your website, they will convert from clicks to customers. At the end of the day, all we want is them to pick up the phone and call you and that is EXACTLY what we will do for you.

We like to keep our website short and to the point. If you have any questions, please browse our services page or contact us directly. Please give us up to 48 business hours to respond to your questions, as we are very busy.

Continued here:
Charlotte SEO Experts | #1 Experts in Digital Marketing

 Posted by at 7:43 pm  Tagged with:

Free Speech, Language, and the Rule of Law

 Free Speech  Comments Off on Free Speech, Language, and the Rule of Law
Oct 032015
 

Contents Some Thoughts on Free Speech, Language, and the Rule of Law by Thomas Streeter

(from Robert Jensen and David S. Allen (eds.), Freeing the First Amendment: Critical Perspectives on Freedom of Expression, New York University Press, 1995, pp. 31-53.)

This chapter discusses the relevance of research and reflection on language to recent critical trends in thinking on free speech. There is a tendency to interpret many of the recent revisionist approaches to free speech as if they were simply calls for exceptions to otherwise clear cut rules and principles, as if, say, pornography or racism are so exceptionally evil that they fall outside the parameters of the kinds of speech that are “obviously” protected under the First Amendment. This misses the fact that the new approaches, with varying degrees of explicitness, involve theoretical and epistemological challenges to the underlying premises of free speech law in general; over the long run, what the new approaches are calling for are not exceptions but a restructuring of free speech law as a whole. The ideas driving this profound rethinking come from a variety of traditions, including various currents of feminism, literary theory, and theories of race and ethnicity. This chapter focuses on just one of those traditions: the complex twentieth century theorizing of language, sometimes called the “linguistic turn” in twentieth century philosophy. Although the linguistic turn is only one aspect of the new thinking about free speech, and although its importance and character is not agreed upon by all those advocating the new thinking, calling attention to it is useful because it nicely highlights some conceptual difficulties of the traditional framework and because it helps differentiate the revisionist criticisms from social determinist and other subtly authoritarian criticisms of free speech.

On the one hand, this chapter argues that the linguistic turn involves some revelations about the nature of language and human communication that do not accord well with the understandings of language implicit in free speech law, particularly with the metaphor of the marketplace of ideas. On the other, it argues that part of what is at stake is the way American culture envisions the rule of law as a whole. In particular, important currents of the understanding of the rule of law suggest the possibility and necessity of constructing rules, procedures, and meanings that transcend or can be abstracted from context, whereas the linguistic turn suggests that this is impossible, that meanings can be determined only in relation to particular contexts. The final part of this chapter, therefore, suggests some avenues for exploring free speech in its historical and social context, as opposed to efforts to abstract it out of context.

In the course of a discussion of the campus hate speech controversy, literary critic Henry Louis Gates (speaking from an African American position) provided the following hypothetical examples of potentially “harmful” speech directed at a minority student:

Sociolinguistics offers an answer to the first question: the social phenomenon of linguistic style. It is not the contents of the first statement that give it force; the argument it makes is, at best, dubious and obfuscatory, whereas the second statement at least would communicate the true feelings of the speaker towards the hearer with considerable precision. The first statement’s power comes from its style.

It is a well established fact that fluency in any language involves mastery, not just of a single, “correct” version of a language, but of a variety of styles or codes appropriate to specific contexts.[2] Gates’ first example is a case of the formal or “elaborated” style of contemporary English, which is highly valued in academic and professional settings. It is characterized by, among other things, Latinate vocabulary (“demanding educational environments” instead of “tough schools”) and elaborate syntax. The second is an example of informal or restricted style, characterized by ellipsis (omitting “You get out of my face . . . “) and colloquial constructions.

Linguists also have long insisted that, in an absolute sense, formal style is no more correct or better for communication than informal style. Scientifically speaking, what makes a style appropriate or inappropriate is the social context in which it is used: in an academic setting, the formal character of the first example gives the statement force, but in another context, say, a working class bar, it might only elicit laughter and derision whereas the second statement might have considerable impact. In the appropriate context, therefore, one can use informal style brilliantly and subtly, and conversely, it is quite possible to speak in a thoroughly formal style and yet be inept, offensive, or simply unclear.[3]

What style differences communicate, then, are not specific contents, but social relations between speakers and listeners, i.e., relations of power, hierarchy, solidarity, intimacy, and so forth. In particular, formal language suggests a relation of impersonal authority between speaker and listener, whereas informal language suggests a more intimate (though not necessarily friendly) relationship. You can petrify a child by interjecting into an otherwise informal conversation, “No you may not.” The shift to formal style (no ellipsis, “may not” instead of “can’t”) shows that the speaker is not just making a request, but is asserting his or her powers of authority as an adult over the child listener.

Gates’s first example would be more wounding to a minority student, therefore, because, by couching itself in a formal, academic style, it is rhetorically structured as the expression of “impersonal,” rational, and thus institutionally sanctioned, sentiments. It thereby invokes the full force of the authority of the university against the student’s efforts to succeed in it. Gates’s second example, with its informal style, suggests that one individual, the speaker, harbors racist ill will towards the listener. The first example, by contrast, suggests that, not just one individual, but the entire institution of the university in all its impersonal, “rational” majesty, looks upon the student as unfit.

So why is it easier to penalize the second kind of statement than the first, when it is the first that is potentially more damaging (which is not necessarily to suggest that we should penalize the first kind of statement)? Contemporary law in general is insensitive to matters of linguistic style. Hollywood action movies have made a cliche of lampooning the incongruity of reading the highly formal, legalistic Miranda clause during arrests, which are typically emotional encounters between working class cops and criminals, i.e., contexts where informal style would be appropriate.[4] In First Amendment jurisprudence, where language is not only the vehicle but the subject matter of the law, this insensitivity can lead to conceptual confusion. Linguistic style may be a fact of life, but traditional legal liberal ways of thinking about free speech, especially those encapsulated in the metaphor of the “marketplace of ideas,” are strangely incapable of addressing it.

The marketplace metaphor in free speech law involves imagining symbolic and linguistic phenomena as if they were analogous to market exchange, which implies a number of things about language. Most obviously, it implies that language is primarily an exchange, a transference of something (perhaps “information”), from one person to another. Hence, in linguistic exchanges what matters is the contents of the exchange, not the style or form in which it is “packaged,” just as in real market exchanges it makes little difference if you pay by check or cash. Yet, as in Gates’ example, in language the “package” can be everything. The marketplace metaphor, then, draws our attention away from the importance of just the kind of stylistic differences that sociolinguists say are central to the workings of everyday language.

The marketplace metaphor, furthermore, tends to imply that the good that comes from unconstrained human speech comes from some neutral, universal, mechanical, and leveling process, a linguistic equivalent to the economist’s invisible hand out of which will emerge truth, or at least some form of democratic justice. That neutral, mechanical process, furthermore, is contrasted in law with “arbitrary” government interference. And yet, in several ways, linguistics has taught that language itself is arbitrary at its core; in language, the boundary between “natural” processes and arbitrary ones is difficult, some would argue impossible, to discern.

Linguists say that language is “arbitrary” in the sense that meaning emerges, not from anything logically inherent in words or their arrangement, but from the specific conventions and expectations shared by members of a given speech community, conventions and expectations that can and do change dramatically from time to time and place to place. Aside from language in general and perhaps some very deep-level aspects of syntax, there is very little that is universal, neutral, or mechanical about human languages. This insight grew out of the observation that languages differ profoundly from one another, not only in terms of the meanings of specific words, but in terms of basic aspects of the ways those words are arranged: some languages have only two or three words for color, for example, others have nothing English speakers would recognize as verb tenses. But it has also been bolstered by detailed analysis of the workings of language in general. Meanings are fixed neither by logic nor by some natural relation of words to things, but by the contextual and shifting system of interpretation shared by the members of a given speech community.

The arbitrariness of language presents two problems for traditional thinking about freedom of speech. One problem involves legal interpretation, the belief that properly expert judges and lawyers following the proper procedures can arrive at the correct interpretation of a dispute. Often described as the problem of the indeterminacy of law, the purely contextual character of meaning would suggest that legal decisions will always be forced to fall back on contingent, social or political values to decide where the boundaries in the law lie.[5] It is in the character of language, in other words, that a judge will never be able to look at the text of the Bill of Rights and legal precedents to decide whether or not flag burning is protected by the First Amendment; she will always in one way or another be forced to make a choice about whether or not she thinks it should be protected, and will always be faced with the possibility that a reasonable person could plausibly disagree.

Indeterminacy should not be mistaken for the absurd assertion that any word can mean any thing, that there is no stability to meaning whatsoever. As deconstructionist literary critic Barbara Johnson puts it,

A second problem suggested by the arbitrariness of language involves the impossibility of abstracting from context that is a linchpin of the formalist legal logic which today dominates thinking about freedom of speech. According to some understandings of the rule of law, justice is best served when applied according to indisputable, clear rules of procedure and decisionmaking. Hence the First Amendment protects Nazis marching in Skokie and flag burning, not because anything good is being accomplished in either case, but because the important thing is to uphold the rules impartially and unequivocally. And being impartial and unequivocal typically means that rules are upheld regardless of context.

If one were to suggest, say, that the harm from Nazis marching in a Jewish suburb outweighs the value of protecting their speech because of the history of the Holocaust and the irrational and violent character of Nazi ideology, or that flag burning is such an ineffectual form of political expression and so potentially offensive that nothing would be lost by restricting it, the formalist counterargument is that this would “blur” the boundaries, cross what lawyers call the bright lines, upon which our system of justice rests: the rules are more important than the context.

An important example of formalist reasoning is the Bellotti case, in which the Supreme Court struck down a Massachusetts law limiting corporate campaign donations. The Court reached its decision, not simply by weighing the positive and negative effects of the law, nor by deciding that it was a good thing in this case to grant large corporations the same rights as private individuals. The decision was based on the argument that even considering the source of the campaign donations (the “speech” in question) was inappropriate; every individual has a right to unrestricted political speech, and even asking whether corporate “individuals” are as worthy of protection as ordinary individuals would blur the bright lines upon which the rule of law is based.[7] Another example would be American Booksellers Association, Inc. v. Hudnut, when the court threw out an anti-pornography ordinance. The court argued that, even if pornography has negative effects, the same might be said of other forms of protected speech. From this it concluded that “[i]f the fact that speech plays a role in a process of conditioning were enough to permit governmental regulation, that would be the end of freedom of speech,” and thus negative effects do not justify restrictions. As Stanley Fish has pointed out, this is a peculiar logic: faced with facts which call into question the speech/action distinction which underlies the law, the court upholds the law against the facts which would undermine it. But it is a typically formalist logic: the point is to uphold the rule of law, i.e., abstract, neutral principles and procedures; if the coherence of those abstract principles is threatened by facts, you throw out the facts, not the principles.[8]

The problem is that, if the meanings of statements emerge from convention, from social context, then the insistence on excluding context, on divorcing rules and their enforcement from social and political complexities of a situation, is an impossibility. This is not simply an argument that it would be reasonable to sometimes include a little bit of context in legal decisionmaking, that First Amendment law should lean towards a more policy-oriented weighing and balancing of principles and rights in special circumstances such as highly concentrated or technologically inaccessible media. Rather, the argument is that formalist arguments of free speech can not be doing what they claim, that context is present in decisions in spite of claims to the contrary. Decisions that grant protection to marching Nazis and flag burning are not simply decisions that show a preference for bright line rules over context; on the contrary, such decisions are themselves a product of a particular social and historical context, and in turn contribute to the making of particular contexts.

The collapse of the boundary between “natural” speech and arbitrary interference with it implied by indeterminacy creates a further problem for First Amendment interpretation: the collapse of the distinction between speech and conduct or speech and action. The exercise of free speech, the “free marketplace of ideas,” is imagined as a kind of neutral, free and equal exchange, contrasted with unfree or arbitrary coercion. What disappears in the face of the arbitrariness of language is the coherence of that contrast, the faith that there is an important categorical distinction between people talking and arguing and people coercing one another through some kind of action. It is now an axiom of sociolinguistics and many other schools of thought that language use is an important kind of social action, that words do not merely reflect reality or express ideas, they primarily are a way of doing things, a way of acting in the social world. Although J. L. Austin began his classic How to Do Things With Words by describing a limited category of statements that do things–“performatives”–he later enlarged the category and made its boundaries much less clear by acknowledging the frequency of “indirect performatives,” i.e., statements that might appear to be merely descriptive but in context can be shown to be in fact doing something.[9] Some have since argued that in a sense all utterances are performatives.

None of which is to suggest that a subtle verbal snub is identical to punching someone in the nose. We do not call trespassing on someone’s lawn and shooting them identical, though they are both categorized as violations, as coercive. When Stanley Fish argues that speech in everyday life should not be imagined as if it takes place in “the sterilized and weightless atmosphere of a philosophy seminar,”[10] or when Matsuda et. al argue that words can wound, the argument is not that every slight or insult ought to be treated as if it were assault and battery.[11] What they are criticizing is the belief that there is a fundamental, categorical dichotomy between speech and conduct, that the dichotomy is clear and generalizable enough to form one of the principle structures of our law and democracy.

All this points to a deeper critique of the marketplace metaphor. The metaphor implies that linguistic exchanges, like market exchanges, take place between individuals who, in the absence of some outside interference, exist merely as individuals, not as persons in particular contexts with particular backgrounds. These are the famous abstract individuals of legal liberalism, the persons referred to as “A” and “B” in law school lectures on contracts: persons bereft, in legal liberalism’s ideal world, of gender, class, ethnicity, history. People the world over, the marketplace metaphor suggests, all share the characteristics of being in essence rational, self-interested individuals, inherently active and desirous. Language use, then, is a matter of expressing pre-existing interests; it is a tool used by individuals to buy cheap and sell dear in the marketplace of ideas. Language is something one uses.

But, according to at least some schools of linguistics and language philosophy, language is also something that happens to us, something that “speaks us” as much as we speak it. Language is an inherently collective, social precondition to individuality. Most definitions of language exclude any notion of a language possessed by only one individual; for language to be language it must be shared. People do not choose, after all, their first language; in a sense it chooses people. And the particularities of the language that chooses people, many would say, in turn shapes their consciousness, their sense of what counts as reason, their perceptions of the world and their selves within it, even their desires.[12]

This is not to imply, however, some kind of simple social determinism. Here is where the linguistic turn in philosophy suggests something very different from the common assertion that individual behaviors are “caused” by social structures. For one of the central discoveries of linguistics and language theory is what Barthes called “a paradoxical idea of structure: a system with neither close nor center.”[13] Except for analytical purposes, linguistic structure does not exist outside of anyone’s use of it. Language is certainly structured, in some sense of that word; linguistic grammar is the central example of structure, although scholars have brought to our attention many higher-level structures like linguistic style. But that structure is not simply some kind of exterior constraint, a Hobbesian limit on individual action; it is not the “structure” of, say, Durkheimian sociology or orthodox Marxism. It is dynamic, changing, and creative. As Chomsky pointed out, one grammatical system is capable of generating an infinite variety of sentences. And grammar is a practical, thoroughly collective human accomplishment, not an exterior system imposed upon individuals by a reified “society.” It is enabling as well as constraining: linguistic structure is a precondition of self-expression, not just a limit to it.

Language thus troubles both legal liberalism’s happy vision of rational individuals and its dark side, its Hobbesian view of society as the basic constraint on individuals; it calls into question the marketplace metaphor’s notions of both individual freedom and social order. The attraction of the marketplace metaphor in law is much the same as the attraction of marketplace theory itself: it posits a realm that is both free of arbitrary constraint, and yet ordered by the certain yet neutral and unequivocal rules of the marketplace. What the fact of linguistic structure calls into question is not merely the “freedom” of linguistic exchange but also its certainty, its divisibility from “arbitrary” external restraints and interference.

When MacKinnon argues that pornography is a form of action, not of speech, or when Matsuda argues that the context of racism and the subjective experiences of minorities in the U.S. ought to be a primary consideration in the creation and interpretation of hate speech laws, in the long run what motivates these scholars is not just a desire for specific exceptions to an otherwise intact First Amendment doctrine.[14] The suggestion is not simply that pornography is so damaging, or that the specific horrors of slavery and its legacy of racism so evil that unusual exceptions to free speech protection are called for (though the evils of rape-culture and racism very well might be the most urgent problems in the U.S. today). Rather, the suggestion, at least implicitly, is that the evils of rape-culture and contemporary racism force us, or should force us, to fundamentally reconsider how American law thinks about freedom, speech, and their regulation.

Furthermore, the critique of the oppositions that underpin free speech law such as speech and action, rules and context, or politics and law, need not be read as a simple denial that any differences exist. It is obviously not the case that there is no difference between slighting someone with a racial epithet and hitting them in the head, or between decisionmaking in courts and decisionmaking in legislatures. The argument is rather that these differences are neither clear nor generalizable enough to coherently underwrite a system of decisionmaking that claims to be able to transcend context and achieve the neutrality that is the goal of law in the first place.

Inquiry does not come to an end when one accepts the criticisms of the formalist First Amendment framework, and acknowledges the inevitability of politics and context. Stanley Fish’s quip notwithstanding, there is such a thing as free speech. If something is not what we think it is, it does not follow that it does not exist. Free speech is one of the major and most influential political and legal discourses of this century; for better or worse, it has helped make American society, our world, what it is. So the task is to rethink the character of free speech, to specify its historical context and political incidence. This is a large task; here I can only speculate about one aspect of the historical context of free speech, its relation to notions of the rule of law, and one aspect of its political incidence, its relations to social class.

The concept of a neutral, objective system of law that transcends politics is not just an abstraction important to lawyers and judges. (Lawyers and judges, in fact, are often acutely aware of just how political and unstable legal interpretation can sometimes be on a day-to-day basis.) A faith in the neutral rule of law is an important element of American culture, of the popular imagination. Evidence for this can be seen in the way that legal institutions and documents are more often celebrated, more often used to define American democracy, than political institutions and accomplishments. One might think, for example, that in an electoral democracy the most important historical event, the event most widely celebrated, would be the extension of the vote to the majority of the population. Yet most citizens do not know the amendment or the year in which the vote was extended to women, much less the history of the long political struggles that led to the passage of the nineteenth amendment in 1920. On the other hand, the Constitution is regularly celebrated in fora ranging from scholarly conferences to reverential Philip Morris ads, even though that hallowed document underwrote a legal system that upheld slavery for three quarters of a century, excluded women from voting for more than half a century after that, and did not come to rigorously protect political dissent until about fifty years ago. Nonetheless, American culture tends to worship the Constitution and remain ignorant of the history of universal suffrage. The story of the Constitution is a story of law, whereas the story of women’s suffrage is a story of protracted political struggle. And in some ways, at least, mainstream American political culture worships the former more than the latter.

What is the substance of this worship? What makes law neutral, and how does it support democracy? The short answer might be that if a society makes its decisions according to fixed rules instead of individual or collective whims, individuals will be less able to gain systematic advantage over others. The long answer would involve an extended and controversial discussion of a large chunk of the literature of legal theory and political science. But there is a mid-range answer based in historical observations, which suggests that in the U.S. two patterns of argument or logics have tended to shape legal decisionmaking, particularly in this century. One logic has been called alternately formalist, classical, bright line, rule-based, or simply legal justice; the other, standards-based, revisionist, policy oriented, realist, or substantive justice.[15]

Arguably, the First Amendment has become the centerpiece of the American faith in the rule of law in this century, and not coincidentally, First Amendment law is also highly formalist. Formalism is not simply absolutism, a belief that there should be no exceptions. It is more a way of thinking about what law and legal interpretation are and how they work. (Describing the ACLU’s position on the First Amendment as “absolutist” is thus a bit of a red herring.) In at least many of its variations, formalism involves the claim that law is apolitical and neutral because it rests on a rigid, formal model, based on an ideal of axiomatic deduction from rules and unequivocal, “bright line” legal distinctions. The role of law, then, is to locate and uphold clear boundaries–bright lines–between the rights of individuals and between individuals and the state. Legal language and legal expertise are thought valuable precisely because they provide fixed, rigorous meanings unsullied by the political and social winds of the moment. Given a certain set of legal rules and a certain legally defined situation, it is assumed, a properly trained judge or lawyer, within certain boundaries, can use expertise in legal language and reasoning to arrive at, or at least approximate, the correct interpretation, which is generally a matter of pinpointing exactly where the boundaries lie.

Policy oriented decisionmaking, in contrast, tends to be context sensitive, accepting of blurry boundaries, functionalist, and messier. It is also much more common in legal decisionmaking than popular wisdom would suggest. In policy argument, justice is thought to be best served by subtle, well-informed analyses of particular contexts and judicial “balancing” of competing interests and principles; rights and values are treated, not as hard rules distinguished by bright lines, but as general standards that can be differentially implemented according to context. Administrative law, such as that involved in enacting the Federal Communication Commission’s public interest standard for broadcasters, is a classic example of policy oriented decisionmaking. Brown v. Board of Education also includes some exemplary policy argument.

Policy-oriented decisionmaking sometimes is justified in terms of head-on attacks on formalism of the type associated with the critiques of free speech just discussed. Both in practice and in theory, the argument goes, the supposedly “bright line” distinctions upon which formalism is based are rarely if ever as bright as imagined. Stanley Fish’s polemic, “There is no such thing as free speech,” is a recent example of such a critique, but in some ways his position echoes, for example, Felix Cohen’s legal realist argument earlier in the century, in “Transcendental Nonsense and the Functional Approach.”[16]

It is important, however, that outside the academy policy-oriented legal decisionmaking has been justified less by theoretical criticisms of formalism as a whole and more by a sense that, in certain limited and specialized contexts, policy-oriented decisionmaking is simply practical. Formalism seems to be the place our culture celebrates the ideal of the rule of law; policy argument seems to be the place where most of the detailed legal work of ordering society goes on. Policy argument dominates largely in domains unrelated to communication: the law of corporations, environmental law, urban planning, and so forth. The prominent example of policy logic in communication is probably government licensing of broadcast stations according to the public interest standard. Licensing was originally created because communication by radio waves was understood to be characterized by spectrum scarcity and other complicated and contingent technical matters, such as rapidly evolving technologies and strategic needs of the military. Treating broadcasters differently than newspapers was thus thought to be simply called for by context, not because there was thought to be a formal right or principle at stake such as the public’s right to access to communication.

It is sometimes suggested that policy arguments began to replace formalist ones in legal argument somewhere around the turn of the century, and formalism was finally defeated with the end of the Lochner era in 1937. On the level of legal metatheory, there may be truth to this, but it remains the case that in practice both logics remain today. Sometimes the two logics are associated with competing sides in a legal controversy. The argument that television violence ought to be censored because its measurably harmful effects on children outweigh considerations of free speech is a typical policy argument; arguing against such censorship because it would open the door to more serious restrictions of freedom of speech is to lean in a formalist direction. But the two logics are also often mixed in the context of any given argument. Conservatives argue that broadcast licensing violates free speech rights but also is inefficient in the context of new technologies; liberals argue that guarantied citizen access to mass communications would be beneficial for industrial society but also should be treated as a “new First Amendment right.”[17]

So it is perhaps the case that what has been changing over the years is not simply a shift from one kind of argument to the other, but a shift in the “mix” of the two, a shift in how the two kinds of argument have been used in which cases. And here the historical literature suggests that, gradually in this century, the focus of formalist argumentation has shifted from the realm of property and contract to free speech. Up through the late nineteenth century, during what Mensch calls the classical era of jurisprudence, property was the central, formal right; in theory property was celebrated as the essence of legal liberalism, and in practice it was used aggressively in a wide variety of areas. Property rights were invoked to justify bans on speaking in public parks, the picketing of factories during union drives, and turn-of-the-century social legislation. Gradually, this formalist application of property fell out of favor, and met its final demise in the 1937 overturn of Lochner, during the New Deal.[18]

Perhaps it is not entirely coincidental that, as formalist notions of property declined, the formalist understanding of free speech rose. In a familiar history, the First Amendment was gradually elevated to its current legal status, both in case law and in the popular imagination. What has triumphed in this period is not a policy-oriented understanding of free speech (in spite of the best efforts of a long line of scholars from Alexander Meiklejohn to Sunstein, but a rigidly formalist one. So today, property rights advocates who would like to see a return to something like the Lochner era interpretations of property, like Richard Epstein, argue that the rules applied to free speech should also be applied to property. Conversely, from somewhere towards the other end of the political spectrum, Cass Sunstein has called for “A New Deal for Free Speech” wherein the 1930s revisions of property law be extended to communication.[19]

Why has formalism in legal discourse shifted from property and contract to free speech? At this point, I can only speculate. It’s possible to put a cynical economic interpretation on the shift: Formal interpretations of property were abandoned because they became increasingly impractical in the face of the bureaucratic corporate form of business and other late nineteenth and early twentieth century economic developments. Conversely, the soap box speakers became sanctified in law precisely during the historical period that they ceased being effective. In the nineteenth century, union organizers, pacifists, and other “radicals” all made good use of the soap box–of face-to-face speaking in public places–as a communicative tool, and were regularly arrested for doing so. In this century, however, the key to popular communication has become access to radio, television, and other expensive technology-based mass media, which have rendered the soap box increasingly irrelevant as an organizing tool. A formalist interpretation of the First Amendment grants symbolic protection to soap boxes while in practice protecting media corporations much more effectively than dissidents.

Such an account of the shift, however, risks a functionalist tautology (explaining historical events in terms of the needs they serve for the power bloc) and fails to account for the imaginative power of First Amendment formalism. So a more comprehensive explanation might add two observations. First, from a distance, formalism is satisfying to a legal liberal vision of the rule of law, whereas policy argument can appear as arbitrary, obscure, and haughtily technocratic. College sophomores have little trouble understanding why it might be good for the rule of law to protect Nazis marching in Skokie, but it takes a lot of effort to convince them of the grand principles at stake in, say, the regulation requiring TV stations to charge political candidates the same rate for advertising time they charge their most favored advertiser instead of their standard rates. Second, from up close, from the perspective of those involved in everyday, small legal decisions, formalism is frequently impractical, whereas policy-oriented decisions seem reasonable and pragmatic. Few suburban homeowners would take kindly to the suggestion that their neighbors should be allowed to raise pigs or let their lawns go to weed on the grounds that to do so would be to uphold the sanctity of formal property rights.

It seems to be the case, then, that the American polity seems to want a legal system that can satisfy both the desire for legitimacy provided by formalism and the “practical” effectiveness of policy-oriented decisionmaking. Perhaps, therefore, the formalist interpretation of the First Amendment became popular in part because it came to take property’s place as a symbol of legal clarity and formal justice. In both the popular and legal imaginations, the image of the property-holding yeoman farmer was gradually supplanted by the soap box speaker as the central archetype and emblem of legally protected exercise of rights and freedoms in a democratic society.

1. Labor and Management

The polity, however, is not the public. The community of individuals who appreciate the formalist interpretation of free speech may include a wide range of people, such as lawyers, judges, politicians, journalists, professors, and many others in positions to directly or indirectly influence legal and political consciousness. And it includes a wide range of political positions: liberals at the ACLU seem to have little trouble agreeing with conservatives on the Supreme Court that flag burning is protected speech. But it certainly does not include everyone. The majority of the American public has a hard time seeing the justice of protecting flag burning. And this may not mean simply that the public disdains free speech. The ACLU reports that the majority of the complaints it receives come from workers who feel their speech has been restricted by their bosses–a kind of speech that the Supreme Court and the ACLU agree is not protected.

Elizabeth Mensch has remarked that, although many formerly bright lines have been blurred in twentieth century law, the boundary between capital and labor remains as bright and impermeable as ever.[20] The First Amendment, as it is currently interpreted, protects owners and managers more than individual speakers. It prevents government agencies from interfering with the speech of private agencies delineated by boundaries of ownership and management, not by individual human beings.

As a result, employees have basically no free speech rights with regards to their employers, including employees of media businesses. When a journalist is told by an editor to drop a story because it is politically inflammatory, the journalist can find little comfort in First Amendment law. Network program practices departments engage in systematic and thorough censorship of scripts for television series with all the zeal (if not the same principles) of Communist Party apparatchiks. Under law, there’s a sense in which A. J. Liebling’s bon mot–that the only freedom of speech in this country is for those who own one–is literally true.

For all that, Liebling’s quip is an oversimplification. There are many limits on the power of media owners to influence content, such as the resistance of the community of professional journalists to owner manipulation on both ethical and self-interested grounds. Evidence suggests that, among some groups, there probably is a popular ethic of free speech in the U.S. that extends beyond the powers of owners and managers. When conservative newspaper tycoon Rupert Murdoch bought the left-wing Village Voice and tried to dismiss its editor, for example, the threat of a staff walkout forced him to back down, and he left the paper’s editorial content alone thereafter.[21]

2. Social Class and Linguistic Style

Bringing “popular ethics” into the discussion, however, brings us back to the second question suggested by Gates’ examples: why does it seem easier to pass rules prohibiting direct racial epithets than elaborate, formal statements? It is well established that linguistic style is associated with social class. Sociolinguist Basil Bernstein demonstrated that children from middle and professional classes tend to do better in school than working class students in part because they speak more often and more fluently in formal style, or what Bernstein calls “elaborated code.” Working class students, in contrast, tend to be more comfortable, and are probably more fluent in, informal style, or what Bernstein calls “restricted code.”[22]

One style is not better than the other. Rather, each style is an adaptation to specific patterns of life and work. Informal style has the effect of stressing membership within a group; it is useful for interactions among people who are familiar with each other and work with each other on a regular basis, and thus live in “dense” social networks, i.e., high levels of interaction with a limited number of people. It has a high proportion of ellipsis and colloquialisms, not because such language is simpler, but because these take advantage of a higher degree of shared knowledge between speaker and listener. Similarly, it has a higher proportion of personal pronouns (you and they) and tag-questions soliciting agreement of the listener (nice day, isn’t it?), because these express a sense of cooperation and solidarity.[23]

Formal style, in contrast, is for people whose social networks are less dense, who regularly deal with strangers and thus communicate in contexts in which ellipsis and colloquialisms are more likely to generate confusion than solidarity. Similarly, formal style’s high proportion of subordinate clauses, passive verbs, and adjectives (besides connoting high-mindedness through its echo of Latin grammar) are adaptations to the need to explain details comprehensively when speaker and listener do not share as much background knowledge and cannot easily rely on features of the extra-linguistic context. Interestingly, in spite of the frequency of passive verbs, formal style also contains a higher proportion of pronoun “I.” This has the effect of imposing the speaker’s individuality on the utterance, of stressing her or his unique nature as a person, as opposed to expressing membership in a group. Some research suggests that formal style leads people to be judged as more intelligent, more educated, and less friendly and less likable than informal style.

It is not the case that working class people use only informal style and middle class people use only formal style. A garage mechanic will probably shift to formal speech when dealing with a customer irate over a bill, and only the most hopelessly pompous college professors use formal style when speaking with their friends and families. But mastery over the different styles is not evenly distributed. Bernstein’s work suggests that middle and professional class students’ relatively better skills and comfort with formal style functions as a form of what Bourdieu calls “cultural capital,” enhancing their life prospects.[24] Given the relation of style to the character of work, moreover, fluency in formal style (though not accent) is probably associated with a person’s present occupation, regardless of class background.

What does this have to do with free speech? James Carey has argued that the speech/action distinction in free speech law is an expression of distinctly middle class values and sensibilities. Carey tells the story of a middle class man who enters a working class bar and not long thereafter comes flying out the plate glass window; the man then says with astonishment, “but all I did was use words!” Carey’s point is that, to the working class individuals in the bar, words have power. For them, the difference between insulting someone’s mother and punching them in the nose is not as obvious or absolute as it is for the middle class person.

Carolyn Marvin has elaborated on these contrasting sets of values in our culture in terms of what she calls “text” and “body”:

The First Amendment as currently interpreted is envisioned largely in terms of that which middle and professional class people have mastery over, abstract formal expression in speech and writing. This is why it is harder to censure Gates’ first example than the second. Within the community of people who share those values, there is something equalizing about free speech. But it should not be surprising that, for people who do not make a living that way, for workers and other people whose bodies are the source of their value to society, formalist protection of free speech may not make sense, and might even appear as simply another way that people with privileges (such as academics writing about free speech) exercise their power over people who don’t.

The analyses and arguments of this chapter do not offer resolutions to all of the many important debates among non-formalist theorists of freedom of speech, such as those between Gates and Matsuda et al. over campus hate speech codes. But it does do two things. First, it tries to clarify some of the underlying principles and issues at stake today in debates over free speech, particularly the inevitability of context and the problems this poses for traditional formalist understandings of the rule of law. Second, it points in the direction of a rethinking of free speech based in context, and suggests two (among many possible) avenues to pursue: the historical shift of formalism from property to free speech and to matters of language and social class in both legal discourse and in nonlegal situations. Clearly, these examples of context-based analysis are intended only to be suggestive. But what they suggest, it is hoped, is that this kind of inquiry, if expanded into rich and subtle contextual analyses, might indeed help resolve some debates and contribute to a more fully democratic, substantive interpretation of the role of free speech in law and culture.

[1]. Henry Louis Gates, “Let Them Talk,” The New Republic, Sept. 20 & 27, 1993, pp. 37-49: p. 45.

[2]. “Style” is the generally accepted sociolinguistic term for language varieties that can be classified on a continuum for formal to informal. The word “code” is used by Basil Bernstein, Class, Codes And Control, 2d edition (Boston: Routledge & K. Paul, 1974).

[3]. William Labov, “The Logic of Nonstandard English,” in Giglioli (ed.) Language and Social Context (Penguin, 1972), pp. 179-216.

[4]. For a sociolinguistically informed analysis of the role of linguistic style during arrest and interrogation see, Janet E. Ainsworth, “In a Different Register: The Pragmatics of Powerlessness in Police Interrogation,” Yale Law Journal, 103 (November, 1993): 259-322.

[5]. Mark Kelman, A Guide to Critical Legal Studies (Cambridge, Mass.: Harvard University Press, 1987), p. 12 and passim.

[6]. Barbara Johnson, A World of Difference (Baltimore: Johns Hopkins Univ. Press, 1987), p. 6.

[7]. First National Bank of Boston v Bellotti, 435 US 765, 776 (1978)

[8]. 771 F.2d 323 (7th Cir. 1985), aff’d, 475 U.S. 1601 (1986), p. 329; quoted in Stanley Fish, “Fraught With Death: Skepticism, Progressivism, and the First Amendment,” University of Colorado Law Review, 64 Fall 1993: 1061-1086, p. 1065.

[9]. See Ainsworth, “In a Different Register,” note 15: “Austin initially adopts the intuitively appealing assumption that constative utterances, unlike performatives, are true or false. Having set up these opposing categories of performative and constative utterances, Austin ultimately deconstructs this dichotomy” with his analysis of indirect performatives.

[10]. Fish, “Fraught With Death,” p. 1061.

[11]. Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberle Williams Crenshaw, Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder, Colorado: Westview Press, 1993).

[12]. The classic and extreme version of this notion is the “Sapir-Whorf hypothesis” named after linguists Edward Sapir and Benjamin Whorf. For a post-structuralist variation of it, see Rosalind Coward and John Ellis, Language and Materialism: Developments in Semiology and the Theory of the Subject (London: Routledge and Kegan Paul, 1977).

[13]. Roland Barthes, Image, Music, Text (New York: Hill and Wang, 1977), p. 159.

[14]. Catharine A. MacKinnon, Only Words (Cambridge, Mass: Harvard University Press, 1993).

[15]. Elizabeth Mensch divides legal thought into classical and realist or revisionist forms. Duncan Kennedy talks of the distinction between rules and standards. Roberto Unger speaks of “legal justice” and “substantive justice.” See Elizabeth Mensch, “The History of Mainstream Legal Thought” in David Kairys, ed., The Politics of Law: A Progressive Critique (New York: Pantheon, 1982), pp. 18-39; Duncan Kennedy, “Form and Substance in Private Law Adjudication,” Harvard Law Review, 89 (1976): 1685, pp. 1687-89; see also Roberto M. Unger, Knowledge and Politics (New York: The Free Press, 1975), p. 91.

[16]. Stanley Fish, “There’s No Such Thing As Free Speech And It’s a Good Thing Too,” Boston Review, Feb. 1992, p. 3; Felix Cohen, “Transcendental Nonsense and the Functional Approach,” Columbia Law Review 35 (1935): 809.

[17]. For example, Jerome A. Barron, Freedom Of The Press For Whom? The Right Of Access To Mass Media (Bloomington: Indiana University Press 1973).

[18]. Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy (Chicago: University of Chicago Press, 1990).

[19]. Cass R. Sunstein, “Free Speech Now,” The University of Chicago Law Review, 59 (Winter 1992): 255; Richard A. Epstein, “Property, Speech, and the Politics of Distrust,” The University of Chicago law review 59 (Winter 1992): p. 41.

[20]. Mensch, “The History of Mainstream Legal Thought,” p. 26.

[21]. Alex S. Jones, “At Village Voice, A Clashing Of Visions,” The New York Times, June 28, 1985, Section B; p. 5, Column 1.

[22]. Bernstein, Class, Codes And Control.

[23]. This survey of Bernstein’s work relies heavily on Peter Trudgill, Sociolinguistics: An Introduction to Language and Society (London: Penguin Books, 1983, revised edition), pp. 132-140.

[24]. Pierre Bourdieu, Distinction: A Social Critique of the Judgment of Taste, trans. R. Nice (London: Routledge & Kegan Paul, 1984).

[25]. Carolyn Marvin, “Theorizing the Flagbody: Symbolic Dimensions of the Flag Desecration Debate, or Why the Bill of Rights Does Not Fly in the Ballpark,” Critical Studies in Mass Communication, 8, (June, 1991): pp. 120-121.

[26]. Social class is of course a complex construct, and is used here suggestively, not comprehensively or precisely. Marvin points out that the values of “body” in fact extend to and in many ways are exemplified by military personnel, a group which overlaps with but is not limited to working class individuals.

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Oct 022015
 

Perfect Night Reviewed on 12/03/2012 Tracy S

The Liberty House was the site of our perfect Thanksgiving weekend wedding. Our family and friends were blown away at absolutely everything: the views, the gardens, the cocktail room, the reception space, and the food. Danielle was an AMAZING help for the year we planned our… Read More wedding and was always quick to respond to our many requests and the evening went off without a hitch. The staff at the Liberty House were phenomenal and worked so hard to make sure we were comfortable, fed, and filled with liquor! The space was beautiful and I can’t wait to return year after year to have an anniversary dinner at their restaurant.

I got married the week Hurricane Sandy hit the east coast. The entire state of New Jersey was in chaos and devastation. The Liberty House helped me have my dream wedding. Despite power loss and generator usage, they did everything in their power to make sure the wedding was as… Read More perfect as it could get. The entire venue was filled with candle light, the food was AMAZING, and the service was outstanding. My wedding turned out absolutely amazing – even without power!

I just had my wedding at the Liberty House and it was an AMAZING wedding. The staff, especially Danielle, Miriam and Virginia went above and beyond! Everything was great from the food to the service. My guests were raving to me all night (and still are) about how wonderful the… Read More place was. There really is no better backdrop for your wedding than the amazing views of NYC.

My wedding day was everything I hoped for, and more. I originally planned on having my wedding at a venue in Brooklyn, since that is where I reside. After my first walk through at the Liberty House I was convinced this was where I would marry the love of my life. Alex Argenio… Read More was my wedding coordinator and she was absolutely Amazing!!! She helped with planning all the details and made sure to be there on the big to ensure everything went as planned. We had the ceremony at the garden with 150 guest and I couldn’t be happier with how everything turned out. Having the ceremony and reception at the same location was the best decision for us, I think it helped in keeping everything on schedule and made it convenient for the guest to transition. I am so grateful for Vicky the maitre’d who took care of everything the groom and I needed for the night, she was phenomenal!!! I wanted a real wedding where family and friends could eat, drink and have a good time and The Liberty House was the perfect venue for such a special occasion. Following the wedding our guest were raving about the great customer service from the staff, how delicious the food was and the amazing back drop. The city view across the water combined with the greenery of the garden as well as the fire pits and modern chic outdoor decor made it for a stunning ambiance. Deciding where to have a once in a lifetime event it’s hard as It is, pick a place where they understand that notion and how much you’ll treasure these moments. Good luck bride to be !!!

The Liberty House is an amazingly beautiful venue for a wedding. The views of the city are breathtaking, and all our guests were blow away. We were married in the Liberty Room on the main level. What made our wedding unique is that during the reception we didnt have people… Read More all crammed on the dancefloor. Some people were dancing, some were sitting outside by the firepits toasting marshmallows, others were lighting sparklers, and others were enjoying a cigar and espresso. There was something for everyone. The food is also amazing, and there is tons of it! All our guests commented on how great the food was, and how wonderful and attentive the waitstaff was. The entire staff at the Liberty House was professional, helpful, and very kind. They are masters of creating an amazing wedding day and a countless number of our guests said it was the best wedding they have ever attended. It was the perfect venue for us, and I cant thank the Liberty House staff enough for helping create my dream wedding day!

Flawless Wedding First let me start by saying if Danielle Villa is not your coordinator then she should be! As she is AMAZING!! We had chosen the LH house due to the amazing views of NYC, which would allow for us to have a personal wedding with ~60 guests. The benefits… Read More that Danielle brought We are very busy with our jobs as both my wife and I do a lot of global travel, and we no longer live in NJ, so planning a remote wedding around our work schedules was hectic to say the least. So when we had a question we were delighted to get a quick and concise response from Danielle within 24 hours, and most of the time is was in less than 3 hrs. She was great at detailing out the next steps, as well as offering suggestions for the event. She set up the room, ceremony and our special champagne celebration perfectly! She made it a flawless, drama free day! Benefits of the Liberty house.our guests loved loved loved the food at the cocktail hour. And the views of Manhattan were amazing, especially since it was a blue moon that night. For our event we chose to do the cocktail hour first, this gave our guests time to get to know the venue and mingle with each other. From there we moved to the ceremony where we had the chairs set up in a heart shape, and a champagne bucket in each row allowing for an immediate toast after our I dos. We then moved back to cocktails for a short period before starting dinner. Dinner quickly moved to dancing, more pictures of the skyline, cake and Smores (which were a HUGE hit!). The service the day of our wedding was over the top. We had Chris that ensured things flowed as scheduled, and Elizabeth as our personal attendant and she made sure we had everything we needed. Our goal was to have an informal, fun event that our friends and family would rave about. And that is exactly what we got. Every guest could not say enough about the venue, food, view, and overall day. Overall, would not change a thing when it comes to the Liberty House. And can not stress enoughDanielle is a MUST to have in your corner!

Had our wedding reception at The Liberty House on June 7. Could not have asked for a better experience! Being an event planner, I had high expectations….Danielle Villa and the entire Liberty House staff blew me AWAY. I am more than thrilled with the way everything turned out…. Read More The view is to die for, the food is amazing, and the staff is so attentive (my bridal consultant, Leslie was a DOLL!). You don’t find this combination anywhere else. Our guests can’t stop talking about our wedding. Said it is the best they’ve ever been to! All thanks to the amazing Liberty House. To Danielle and team — thank you for EVERYTHING. it was my dream day!

Our wedding was almost a month ago and we are still getting compliments. All our guest raved about how beautiful the Liberty House was and how delicious the food tasted. My now husband and I had such a pleasant experience dealing with all the staff throughout our… Read More planning. On the day of our wedding, they made it such a special experience. We did not have to go to the bar once as our drinks were always being filled by the bridal attendant. My sister need a pin for my hair and the attendant appeared and had one for her to use. Everything was amazing and we are still talking about how much fun we had at the Liberty House.

When we visited the Liberty House for a friends wedding, we were in awe. We aspired that the venue would be our own one day and it was! We loved our wedding experience there too! We scheduled an appointment and got assigned Danielle. What a fire cracker! I loved her from the… Read More moment I met her. She was friendly, honest, professional, and REAL! When my fiance and I got home the appointment that night, we were still glowing! We called Danielle the next day and locked in our date! We got to know Danielle pretty well over the next few months, especially my husband who I assigned to our payments. We inundated her with silly questions, which were new to us, and she answered them all in a timely matter. She was always one step ahead and knew what documents/info to send over at the appropriate times. The days leading up to the wedding were stressful but having Danielle’s final meeting was soothing. We finalized all the details and made a checklist. She was so well organized that it made everything easy. The day of the wedding, everything went off without a hitch! Everything was set up where it was supposed to be and my bridal assistant, Leslie was a gem! Always pleasant and always asking if I needed anything! She was so accommodating; Ive never been so attended to and it felt great on such a special day! Thank you for the memories Liberty House! You are what we dreamt of! Lastly, leaving you with a few helpful tips: – Bring 4 people to your tasting trial. It makes it more fun and its a great way to include your bridal party. Six people was a little too crowded, especially when you had to share a salad. – You get what you pay for. Is the LH more than other locations, sure, but you cant beat the location. Perhaps, switch your wedding to the afternoon to save some bucks. We did. – Make a list of all supplies dropped off at the LH prior to the wedding. This ensures that nothing gets left behind!

My experience with the Liberty House was AMAZING! From beginning to end, Danielle was professional, knowledgeable, and extremely reliable. Throughout the planning process she was very helpful and easy to reach. We had both our ceremony and reception at the Liberty House. Our… Read More reception was in the Liberty Room downstairs, which also gave us access to the outdoor patio. I was very concerned about the weather, but Danielle continually assured me that they would make it work. We ended up having perfect weather, but I knew even if we didnt that Danielle would work hard to make sure everything was beautiful. You cant beat the food or atmosphere of the Liberty House. Our guests said it was the best food they ever tasted! The staff and service at the Liberty House is experienced and efficient. Leslie was my bridal assistant and I have to say that she was a life saver. From the second I stepped off the bus she was right there to help me with my dress and continued to be attentive until I stepped back on the bus at the end of the night. She was experienced and knowledgeable and helped the day to run smoothly for not only myself and my husband, but for our parents and the rest of the bridal party as well. Overall, the Liberty House was just wonderful! I would recommend them to anyone!

The Liberty House far exceeded all my expectations for our wedding reception. The room was stunning, the food was amazing, and the service was beyond compare. I worked closely with Danielle Villa through my two year engagement – she provided us great, responsive service and had… Read More amazing ideas on how to enhance our reception. We were fortunate enough to have a beautiful, clear, October night where people were able to hang out outside in the park during cocktail hour and on the balcony during the reception – and the view of NYC provided the perfect backdrop. Our bridal attendant Leslie was so amazing- she knew exactly what I needed before I knew I needed it!! I felt so taken care of all day and knew I was in capable hands from the moment we selected The Liberty House to host our reception. People are still raving about our beautiful wedding!!

Liberty House Restaurant was the perfect place for our wedding! The food was outstanding, the space is gorgeous, and the views of downtown Manhattan are stunning. Mara McMullen and her team kept me sane the months, weeks, and days leading up to our wedding and helped me with… Read More planning every step of the way. We could not have been happier with the Liberty House and look forward to spending our anniversaries at the restaurant year after year!

I got married at the Liberty House on November 7, 2014 and my guests are STILL talking about it. It was the most amazing wedding and it was everything I had ever dreamed of. I worked with Mara who was incredibly professional, responsive, and super sweet to deal with. She… Read More answered every question I had and worked with me on anything and everything I needed. I would highly recommend her to any bride looking for someone to help make your day a special one. The day/night was unbelievable. First of all the food is exceptional. My guests were raving about it (and still are). Everything from the cocktail hour to the main course and was just absolutely delicious. The view is unbeatable. I love Manhattan and having that be the backdrop of our wedding venue was magical. Walking into the room truly takes your breath away. I had Leslie as my bridal attendant that day and she was beyond amazing. She was there for anything I needed and was such a pleasure. Ladies ask for Leslie because she is amazing and such a wonderful person. She made every request I had and saw them through perfectly. I really cannot say enough about the wonderful experience I had at the Liberty House. Everyone there is amazing and the service the staff provided was outstanding. Here we are almost two weeks later and people who attended our wedding said two things: One, it was the best wedding they have ever been to, and two, the Liberty House was beautiful, the food was excellent, and its a one of a kind place. If you are a bride looking to steer clear from the typical catering hall feel, definitely look into Liberty House. Also the pictures you will get will blow you away. The backdrop of Manhattan is beautiful and my pictures came out amazing. Overall I was so incredibly happy with everything. It truly was the best day of our lives and we have to thank the wonderful staff there for all they did for us but especially to Mara, Leslie, and of course our maitre d Chris who made our day so special. We couldnt have asked for a better day and a better place to have our wedding.

The Liberty House was an amazing wedding venue from start to finish. I initially chose the wedding for the NYC skyline and it did not disappoint. My guest were all amazed with the view and all wanted to know how I found this venue space. In terms of the event the liberty house… Read More was great in adding little extras to my decorations and details to ensure a great reception look. They were very attentive during the entire event and made sure all of my needs and guests needs were met. I couldn’t be happier with the venue or service.

My daughter & son in law chose this venue for the breathtaking view of Manhattan. That turned out to be just one of the outstanding attributes of this venue. The food was exceptional, the service was above & beyond. We worked with Danielle as coordinator and Leslie as the… Read More bridal attendant. They both outdid themselves and couldn’t do enough for my daughter on the most important day of her life. Thank you to all at The Liberty House for a night we will never forget.

Our son and daughter in law held their wedding reception at The Liberty House in New Jersey earlier this month. We cannot say enough about the venue and the service. Our journey began with Danielle Villa as our coordinator and we were thrilled to be working with her. She was… Read More delightful and answered all of our questions. She responded almost immediately to every question or request. She was as happy as we were to be having this event. She made it oh so easy and fun. Stressless as it were. Jeanne Cretella, the owner of the venue also went out of her way to welcome us and make certain we were pleased with the service. The food was plentiful and very delicious. The service was a 10. The venue looked spectacular and the Manhattan view cannot be duplicated. We could not have asked for more. It was wonderful – a 15 out of 10 !!! We highly recommend this for your special day. Our guests would as well.

First things first.. My wedding was held on October 11th 2014. I am at a complete loss for words at how amazing it all turned out. The liberty house is a beautiful location and Danielle was amazing to work with. She helped bring my vision to life. From the beginning to the end I… Read More felt like a princess. My bridal attendant was on top of everything as well. My guests are still raving about the cocktail hour, dinner and viennese hour. I couldn’t be more happier that I chose the liberty house as the venue to work with and working with Danielle made it that much smoother. She is efficient and on top of things 110% and whoever else has their wedding here will feel the exact same way. Thank you landmark hospitality and Danielle for making my wedding fabulous!!

The Liberty House truly exceeded our expectations. To begin, the venue is spectacular with clear views of the downtown skyline. We worked with Danielle to coordinate and she was 100% on top of every last detail, helping to ease any concerns prior to the big day. Our maitre d and… Read More bridal attendant were phenomenal as well and the service was top notch from cocktail hour to end. We were so we’ll taken care of, I don’t know how anyone could do without this awesome team!

Our wedding coordinator Vivian was amazing! My friends and family loved the venue. The staff in the Liberty Room did a great job! A big thanks to the Liberty House Staff!!!!

We had both our wedding ceremony and reception at Liberty House and everything exceeded our expectations! Everyone we worked with was amazing, Mara was great, super helpful and easy to work with. The location and view are spectacular, add to that fantastic food, signature… Read More drinks, gorgeous fire pits, s’mores, people are still talking about it weeks later! I cannot recommend this venue enough, our day was magical and I couldn’t imagine having it anywhere else.

We had our wedding at the Liberty House and if you are at all considering having your wedding there, do it. NOW. Everything about it was amazing. Even if you can forget about the beautiful view and grounds (which you can’t), the food, staff, location – anything you can think… Read More of for a venue, was just perfect. We received so many compliments throughout the night and people are still talking about it days later. We loved every second of this experience and that is in large part thanks to the amazing people at Liberty House – especially Mara (our fantastic coordinator), Leslie (our amazing bridal attendant), Chris and another woman whose name I unfortunately can’t remember.

Liberty House was wonderful! It’s expensive but definitely worth it! The food, service, views and professionalism was outstanding. Our guest raved about the reception. Mara was our event coordinator and she was extremely personable, organized and professional. By husband and… Read More I had some last minute changes the week before the wedding and she was more than accommodating. My bridal attendant was fabulous! She brought us water a couple times while we were taking pictures and went above and beyond. Liberty House also packaged up all of our items for the reception and had them ready within 20 minutes. It was wonderful because we did not lose anything!

Danielle and the entire staff at The Liberty House made my wedding day the most amazing day of my life! No detail was left out and Danielle was incredible to work with. It was raining until 30 minutes before my wedding ceremony but Danielle had faith that everything would work… Read More out and it did! She had her entire staff wiping down chairs and tables up until minutes before guests arrived to ensure I had the wedding of my dreams. From the most delicious food to the most breathtaking grounds, I would recommend The Liberty House to anyone looking for the whole package. Thank you Danielle!

I have to say that I was nervous about this place, but my “Dreammaker” was the best ever. She never broke a sweat, and made our whole day amazing and flawless. They have the most attentive staff! My family is vegetarian, but they loved everything from the cocktail hour to the… Read More buffet dinner. There were soo many options for both the vegetarians and non-vegetarians.

I mean this place is truly amazing. From the views to the food to the service there was not a place they faltered even a little. Danielle was my coordinator and she was warm and helpful and answered all mine and my parents questions without a hint of annoyance. We had a bridal… Read More attendant the night of the event and let me tell you she was amazing as well. Never was my glass empty or my veil out of place. My wedding was perfect and I love that all of guests were able to enjoy the scenic views! Not a single complaint. I would also like to note that we were initially interested in Maritime Parc(across the parking lot) but have found their service lacking and of course their views are not as amazing. With the lawn at Liberty House as a wedding ceremony option, we are so so happy we chose Liberty House instead!

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Liberty House Restaurant – Jersey City, NJ

The Second Amendment: The Framers Intentions

 Second Amendment  Comments Off on The Second Amendment: The Framers Intentions
Sep 262015
 

by Daniel J. Schultz

The Second Amendment to the United States Constitution states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The reference to a “well regulated” militia, probably conjures up a connotation at odds with the meaning intended by the Framers. In today’s English, the term “well regulated” probably implies heavy and intense government regulation. However, that conclusion is erroneous.

The words “well regulated” had a far different meaning at the time the Second Amendment was drafted. In the context of the Constitution’s provisions for Congressional power over certain aspects of the militia, and in the context of the Framers’ definition of “militia,” government regulation was not the intended meaning. Rather, the term meant only what it says, that the necessary militia be well regulated, but not by the national government.

To determine the meaning of the Constitution, one must start with the words of the Constitution itself. If the meaning is plain, that meaning controls. To ascertain the meaning of the term “well regulated” as it was used in the Second Amendment, it is necessary to begin with the purpose of the Second Amendment itself. The overriding purpose of the Framers in guaranteeing the right of the people to keep and bear arms was as a check on the standing army, which the Constitution gave the Congress the power to “raise and support.”

As Noah Webster put it in a pamphlet urging ratification of the Constitution, “Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe.” George Mason remarked to his Virginia delegates regarding the colonies’ recent experience with Britain, in which the Monarch’s goal had been “to disarm the people; that [that] . . . was the best and most effectual way to enslave them.” A widely reprinted article by Tench Coxe, an ally and correspondent of James Madison, described the Second Amendment’s overriding goal as a check upon the national government’s standing army: As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.

Thus, the well regulated militia necessary to the security of a free state was a militia that might someday fight against a standing army raised and supported by a tyrannical national government. Obviously, for that reason, the Framers did not say “A Militia well regulated by the Congress, being necessary to the security of a free State” — because a militia so regulated might not be separate enough from, or free enough from, the national government, in the sense of both physical and operational control, to preserve the “security of a free State.”

It is also helpful to contemplate the overriding purpose and object of the Bill of Rights in general. To secure ratification of the Constitution, the Federalists, urging passage of the Constitution by the States had committed themselves to the addition of the Bill of Rights, to serve as “further guards for private rights.” In that regard, the first ten amendments to the Constitution were designed to be a series of “shall nots,” telling the new national government again, in no uncertain terms, where it could not tread.

It would be incongruous to suppose or suggest the Bill of Rights, including the Second Amendment, which were proscriptions on the powers of the national government, simultaneously acted as a grant of power to the national government. Similarly, as to the term “well regulated,” it would make no sense to suggest this referred to a grant of “regulation” power to the government (national or state), when the entire purpose of the Bill of Rights was to both declare individual rights and tell the national government where the scope of its enumerated powers ended.

In keeping with the intent and purpose of the Bill of Rights both of declaring individual rights and proscribing the powers of the national government, the use and meaning of the term “Militia” in the Second Amendment, which needs to be “well regulated,” helps explain what “well regulated” meant. When the Constitution was ratified, the Framers unanimously believed that the “militia” included all of the people capable of bearing arms.

George Mason, one of the Virginians who refused to sign the Constitution because it lacked a Bill of Rights, said: “Who are the Militia? They consist now of the whole people.” Likewise, the Federal Farmer, one of the most important Anti-Federalist opponents of the Constitution, referred to a “militia, when properly formed, [as] in fact the people themselves.” The list goes on and on.

By contrast, nowhere is to be found a contemporaneous definition of the militia, by any of the Framers, as anything other than the “whole body of the people.” Indeed, as one commentator said, the notion that the Framers intended the Second Amendment to protect the “collective” right of the states to maintain militias rather than the rights of individuals to keep and bear arms, “remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis.”

Furthermore, returning to the text of the Second Amendment itself, the right to keep and bear arms is expressly retained by “the people,” not the states. Recently the U.S. Supreme Court confirmed this view, finding that the right to keep and bear arms was an individual right held by the “people,” — a “term of art employed in select parts of the Constitution,” specifically the Preamble and the First, Second, Fourth, Ninth and Tenth Amendments. Thus, the term “well regulated” ought to be considered in the context of the noun it modifies, the people themselves, the militia(s).

The above analysis leads us finally to the term “well regulated.” What did these two words mean at the time of ratification? Were they commonly used to refer to a governmental bureaucracy as we know it today, with countless rules and regulations and inspectors, or something quite different? We begin this analysis by examining how the term “regulate” was used elsewhere in the Constitution. In every other instance where the term “regulate” is used, or regulations are referred to, the Constitution specifies who is to do the regulating and what is being “regulated.” However, in the Second Amendment, the Framers chose only to use the term “well regulated” to describe a militia and chose not to define who or what would regulate it.

It is also important to note that the Framers’ chose to use the indefinite article “a” to refer to the militia, rather than the definite article “the.” This choice suggests that the Framers were not referring to any particular well regulated militia but, instead, only to the concept that well regulated militias, made up of citizens bearing arms, were necessary to secure a free State. Thus, the Framers chose not to explicitly define who, or what, would regulate the militias, nor what such regulation would consist of, nor how the regulation was to be accomplished.

This comparison of the Framers’ use of the term “well regulated” in the Second Amendment, and the words “regulate” and “regulation” elsewhere in the Constitution, clarifies the meaning of that term in reference to its object, namely, the Militia. There is no doubt the Framers understood that the term “militia” had multiple meanings. First, the Framers understood all of the people to be part of the unorganized militia. The unorganized militia members, “the people,” had the right to keep and bear arms. They could, individually, or in concert, “well regulate” themselves; that is, they could train to shoot accurately and to learn the basics of military tactics.

This interpretation is in keeping with English usage of the time, which included within the meaning of the verb “regulate” the concept of self- regulation or self-control (as it does still to this day). The concept that the people retained the right to self-regulate their local militia groups (or regulate themselves as individual militia members) is entirely consistent with the Framers’ use of the indefinite article “a” in the phrase “A well regulated Militia.”

This concept of the people’s self-regulation, that is, non-governmental regulation, is also in keeping with the limited grant of power to Congress “for calling forth” the militia for only certain, limited purposes, to “provide for” the militia only certain limited control and equipment, and the limited grant of power to the President regarding the militia, who only serves as Commander in Chief of that portion of the militia called into the actual service of the nation. The “well regula[tion]” of the militia set forth in the Second Amendment was apart from that control over the militia exercised by Congress and the President, which extended only to that part of the militia called into actual service of the Union. Thus, “well regula[tion]” referred to something else. Since the fundamental purpose of the militia was to serve as a check upon a standing army, it would seem the words “well regulated” referred to the necessity that the armed citizens making up the militia(s) have the level of equipment and training necessary to be an effective and formidable check upon the national government’s standing army.

This view is confirmed by Alexander Hamilton’s observation, in The Federalist, No. 29, regarding the people’s militias ability to be a match for a standing army: ” . . . but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights . . . .”

It is an absolute truism that law-abiding, armed citizens pose no threat to other law-abiding citizens. The Framers’ writings show they also believed this. As we have seen, the Framers understood that “well regulated” militias, that is, armed citizens, ready to form militias that would be well trained, self-regulated and disciplined, would pose no threat to their fellow citizens, but would, indeed, help to “insure domestic Tranquility” and “provide for the common defence.”

ENDNOTES

1. In constitutional or statutory construction, language should always be accorded its plain meaning. See, e.g., Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 326 (1816).

2. “On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 32.

3. “The Congress shall have Power . . . To raise and support Armies . . . .” U.S. Const., Article I, Section 8, cl. 12.

4. Senate Subcommittee On The Constitution Of The Comm. On The Judiciary, 97th Cong., 2d Sess., The Right To Keep And Bear Arms (Comm. Print 1982), at 5.

5. 3 J. Elliot, Debates In The Several State Conventions 380 (2d ed. 1836).

6. Originally published under the pseudonym “A Pennsylvanian,” these “Remarks on the First Part of the Amendments to the Federal Constitution” first appeared in the Philadelphia Federal Gazette, June 18, 1789, at 2, col. 1. They were reprinted by the New York Packet, June 23, 1789, at 2, cols. 1-2, and by the Boston Centennial, July 4, 1789, at 1, col. 2. The U.S. Supreme Court, in U.S. v. Miller, 307 U.S. 174, 83 L. Ed. 2d 1206, 59 S. Ct. 816 (1939), noted that the debates in the Constitutional Convention, the history and legislation of the colonies and states, and the writings of approved commentators showed that the militia comprised all males physically capable of acting in concert for the common defense — a body enrolled for military discipline.

7. 11 Papers Of James Madison 307 (R. Rutland & C. Hobson ed. 1977) (letter of Oct. 20, 1788, from Madison to Edmund Pendleton)(emphasis added).

8. An examination of the other nine amendments of the Bill of Rights shows that they were designed, like the Second Amendment, to declare rights retained by the people (1-9), or the States (10), and to provide a clear list of powers not given to the national government: “Congress shall make no law . . . .” (Amendment I); “No soldier shall . . . .” (Amendment III); “The right of the people . . . shall not be violated, and no warrants shall issue . . . .” (Amendment IV); “No person shall . . .; nor shall any person . . .; nor shall private property be taken . . . .” (Amendment V); “In all criminal prosecutions, the accused shall enjoy . . . .” (Amendment VI); “In Suits at common law . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States . . . .” (Amendment VII); “Excessive bail shall not be required . . . .” (Amendment VIII); “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (Amendment IX); “The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (Amendment X).

9. 3 J. Elliot, Debates In The General State Conventions 425 (3d ed. 1937) (statement of George Mason, June 14, 1788), reprinted in Levinson, The Embarassing Second Amendment, 99 Yale L. Rev. 637, 647 (1989). See supra note 6 and accompanying text.

10. Letters From The Federal Farmer To The Republican 123 (W. Bennet ed. 1978) (ascribed to Richard Henry Lee), reprinted in Levinson, supra note 9, at 647. See supra note 6 and accompanying text.

11. S. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right, p. 83 (The Independent Institute, 1984).

12. U.S. v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (“The Second Amendment protects ‘the right of the people to keep and bear Arms’….”).

13. “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.” (Article I, Section 4); “The Congress shall have power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . .” (Article I, Section 8, cl. 3); “The Congress shall have power . . . To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures . . . .” (Article I, Section 8, cl. 5); “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.” (Article I, Section 9); “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” (Article III, Section 2, cl. 2); “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” (Article IV, Section 2, cl. 3); “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular state.” (Article IV, Section 3, cl. 2).

14. See supra, notes 6, 9 and 10 and accompanying text.

15. The Oxford English Dictionary gives the following examples of usage for the term “well regulated”: 1709: “If a liberal Education has formed in us . . . well-regulated Appetites, and worthy Inclinations.” 1714: “The practice of all well regulated courts of justice in the world.” 1812: “The equation of time . . . is the adjustment of the difference of time, as shown by a well-regulated clock and a true sun dial.” 1848: “A remissness for which I am sure every well-regulated person will blame the Major.” 1862: “It appeared to her well-regulated mind, like a clandestine proceeding.” 1894: “The newspaper, a never wanting adjunct to every well- regulated American embryo city.” One definition of the word “well” in the Oxford English Dictionary is “satisfactorily in respect of conduct or action.” One of The Oxford English Dictionary definitions for the term “regulated” is “b. Of troops: Properly disciplined.” The one example of usage is: “1690: Lond. Gaz. No. 2568/3 ‘We hear likewise that the French are in a great Allarm in Dauphine and Bresse, not having at present 1500 Men of regulated Troops on that side.'” The Oxford English Dictionary, Second Edition (Clarendon Press, Oxford 1989).

16. “The Congress shall have Power . . . To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions . . . .” U. S. Const., Article I, Section 8, cl. 15.

17. “The Congress shall have Power . . . To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the states respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress . . . .” U.S. Const., Article I, Section 8, cl. 16.

18. “The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States . . . .” U.S. Const., Article II, Section 2, cl. 1.

19. U.S. Const., Preamble. —– from: The “Well Regulated” Militia of the Second Amendment: An Examination of the Framers’ Intentions, THE LIBERTY POLE V.II, No.2, The Official Publication of The Lawyer’s Second Amendment Society.

Daniel J. Schultz is a practicing attorney in Los Angeles and President of LSAS, a nationwide network of pro-right to keep and bear arms attorneys. Contact the LSAS at (818)734-3066 or 18034 Ventura Boulevard, #329, Encino, CA 91316.

—– Brought to you by – The ‘Lectric Law Library The Net’s Finest Legal Resource For Legal Pros & Laypeople Alike. http://www.lectlaw.com

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Its Hip! Its Cool! Its Libertarianism! – By Connor …

 Misc  Comments Off on Its Hip! Its Cool! Its Libertarianism! – By Connor …
Sep 232015
 

Calling yourself a libertarian today is a lot like wearing a mullet back in the nineteen eighties. It sends a clear signal: business up front, party in the back.

You know, those guys who call themselves socially liberal but fiscally conservative? Yeah. Its for them.

Today, the ruling class knows that theyve lost the culture wars. And unlike with our parents, they cant count on weeping eagles and the stars n bars to get us to fall in line. So libertarianism is their last ditch effort to ensure a succession to the throne.

Republicans freak you out but think the Democrats are wimps? You must be a libertarian! Want to sound smart and thoughtful in front of your boss without alienating your socially liberal buds? Just say the L-word, pass the coke and everyones happy!

Just look at how they play it up as the cool alternative to traditional conservatism. Its pathetic. George Will wore the bowtie. But Reason magazines Nick Gillespie wears an ironic D.A.R.E. t-shirt. And dont forget the rest of his all-black wardrobe, complete with leather jacket. What a totally with-it badass.

***

With such a bleak economic forecast for the Millennials, it shouldnt surprise anyone that our elites want to make libertarianism shorthand for political disaffection. Now theres a demographic with some growth potential. And its inspired a lot of poorly-sourced, speculative babble about how the kids have all gone Galt, almost always through the personal anecdotes of young white men.

A couple of months ago, after Harvard released a poll on the political views of Millennials, libertarians took to the internet to tell the world how the youth of America was little more than a giant anarcho-capitalist sleeper cellready to overthrow the state and privatize the air supply at a moments notice. So I took a look at the poll numbers. And you know what? Its utter horseshit.

Right off the bat, were told that 79% of Millennials dont consider themselves politically-engaged at all so, uh, keep that in mind.

Much is made of the fact that less than half of the survey respondents thought the government should provide free health care to those who cant afford it. What they dont mention is that that number (44 percent) is twice the percentage who say they stand against (22 percent) such hand outs. Nearly a third didnt think one way or the other.

Then we hear that the poll proves kids dont care about climate change. But they dont mention that slightly more Millennials wanted the government to do more on that front than theyre doing noweven if it hurt economic growth. Nearly half, you guessed it, neither agree nor disagree. (Come on kids, Rock the Vote!)

More Millennials identify as liberals than conservatives. Hardly any of them (10 percent) support the libertarian-embraced Tea Party. About three-quarters say they despise congressional Republicans.

Nearly two-thirds voted for Obama in 2008. Slightly over half approve of him now. Nearly three-quarters of Millennials hate congressional Republicans. 55% trust in the U.S. military, one of the largest state-socialist programs in the entire world, also responsible for, you know, those wars that libertarians supposedly hate.

Over a quarter put their faith in the federal government all or most of the time, and 55% some of the time. Only 17% answered never. And despite all their supposed Ron Paul love, they trust the globalist United Nations even more than they do the feds.

A little nibble here with only 36% approving of Obamas handling of the budget deficit, but then again, thats actually better than his rating on the deficit with Americans of all ages. Plus, worrying about the budget deficit is how dumb people have tried to sound smart since the days of FDR. And most people are dumb.

And when we finally get down to a hypothetical libertarian match-up between Obama and Ron Paul41 percent pick Obama and only 27 percent pick Paul.

Oh, but the kiddies are cool with gay marriage and tired of bombing brown people overseas? No shit. That just makes them normal people living in the 21st century. Im for single-payer health care and cant stand Barney Frank. Does that mean I sip the Kool-Aid at the Lyndon LaRouche compound?

None of this should be too surprising. For almost two decades, roughly two-thirds of the American public have supported what wed call a moderate European welfare stateputting the average U.S. citizen significantly to the left of the Democratic party, a center/center-right organization saddled, much to their dismay, with a perpetually-disappointed center-left constituency.

But hey, our ruling class would shit a brick if any of that wealth redistribution stuff happened over here. Which is why this is a center-right nation has been a favorite Fox News talking point for over ten years. Its only nowafter Occupy Wall Street forced their handthat the media is finally willing to admit that it might be bullshit.

But libertarianism? Our ruling class is totally fine with that. Smoke your reefer and sodomize whomever you please, just keep your mouth shut and hand over your Social Security account.

***

Never trust a hippietarian

I get the appeal. The states been sticking it to working folks for decades. It seems almost unimaginable that Big Government could ever be run by us and not the One Percent.

But child labor laws, the Civil Rights act, federal income tax, minimum wage laws, Social Security, Medicare, food safetylibertarians have accused all of them as infringements upon the free market that would lead to economic ruin. And over and over again, theyve been proven wrong. Life goes ona little less gruesomelyand society prospers.

There is no such thing as a free-market, economist Ha-Joon Chang has said repeatedly. A market looks free only because we so unconditionally accept its underlying restrictions that we fail to see them.

In other words, markets are social institutions, just as much under the thumb of politics and government as everything else. Which means theyre subject to democratic pressures, as they should be.

And what you earn from said markets? Chang: All our wages are, at root, politically determined. Despite what Ron Pauls trolls might have you believe, gold Krugerrands dont spray out your asshole every time you type up a spreadsheet or pour a Grande mochachino for your next customer.

Capitalism has always been a product of Big Government. Ever since the railroads of the nineteenth century, to Silicon Valley, Big Pharma and the banks, the Nanny State has been there all along, passing subsidies and tax breaks, and eating the costs the private sector doesnt want.

So whenever a libertarian says that capitalism is at odds with the state, laugh at him. Its like saying that the NFL is at war with football fields. To be a libertarian is to say that God or the universe marked up that field, squirted out the pigskins from the bowels of the earth and handed down the playbooks from Mt. Sinai.

***

When a Red like me wants to argue for something like universal health care or free college tuition, we can point to dozens of wealthy democratic societies doing just that. The Stalinist left is nothing more than a faint memory. But where are the libertarian Utopias?

General Pinochets Chile was a longtime favorite. But seeing as how it relied on a fascist coupwith a big assist from Nixon and KissingerChiles lost a bit of that Cold War luster. So these days, for the slightly more with-it libertarian, we get Singapore as the model of choice.

Hey, isnt that where the Facebook guy lives these days? Thats pretty hip!

Ah, Singapore: a city-state near the very top in the world when it comes to number of police and execution rate per capita. Its a charming little one-party state where soft-core pornography is outlawed, labor rights are almost nonexistent and gay sex is banned. Expect a caning if you break a window. And death for a baggie of cocaine.

But hey: no capital gains tax! (Freedom!)

Singapore: Libertarian Paradise

Its not like any of this will make it through the glassy eyes of the true-believers. Ludwig von Mises, another libertarian pin-up boy, wrote in 1927 that, Fascism and similar movements aiming at the establishment of dictatorships are full of the best intentions and that their intervention has, for the moment, saved European civilization.

Lately, Ron Pauls economic advisor has been claiming that Communist Party-ruled China has a freer market than the U.S.s.

***

So lets talk a little about this freedom theyre always going on about. Or, to paraphrase Lenin, the libertarians ultimate nemesis: freedom for who to do what?

Most American adults spend about half their waking hours at a job. And during that time, libertarians do not give a flying fuck about your liberty. Instead, they condone the most brutal of tyrannies all in the name of a private employers freedom.

Racial discrimination, verbal abuse, random drug testing, body-searches, sexual harassment, illegal termination, email monitoring, union busting, even withholding piss-breaksask any libertarian how they feel about workplace unfreedom and theyll tell you: Hey man, if you dont like it, you have the freedom to get another job. If folks are hiring. But with four-and-a-half applicants for every job, theyre probably not.

Heres another thing libertarians always forget to mention: a free-market capitalist society has never and by definition can never lead to full-employment. It has to be made to byyou guessed itthe Nanny State. Free market capitalism actually requires a huge mass of the unemployedits not just a side effect.

And make no mistake: corporate America loves a high unemployment rate.

When most everyone has a job, workers are less likely to take shit. They do nutty things like join unions, demand better wages and refuse to work off-the-clock. They start to stand up to real power: not to the EPA, and not the King of England, but to their bosses.

But with a real unemployment rate close to 20 percent, that aint happening. Well, fuck. Better sign up for that Big Government welfare state theyre always whining about. Hey, dont worry. You could always sell a little crack and turn a few tricks. Libertarians totally support that.

After all, thats your freedom, dude!

***

Libertarianism isnt some cutting-edge political philosophy that somehow transcends the traditional left to right spectrum. Its a radical, hard-right economic doctrine promoted by wealthy people who always end up backing Republican candidates, no matter how often they talk about civil liberties, ending the wars and legalizing pot. Funny how that works.

Its the third way for a society in which turning against capitalism or even taking your foot off the pedal is not an option. Thanks to our shitty constitution and the most violent labor history in the West, we never even got a social-democratic party like the rest of the developed world.

So what do we get? The libertarian line: No, no: the problem isnt that were too capitalist. Its that were not capitalist enough!

Genius.

At a time in which our society has never been more interdependent in every possible way, libertarians think theyre John fucking Wayne looking out over his ranch with an Apache scalp in his belt, or John fucking Galt doingwhatever it is he does. (Collect vintage desk toys from the Sharper Image?)

Their whole ideology is like a big game of Dungeons & Dragons. Its all make-believe, except for the chain-mailthey brought that from home. Elves, dwarves and fair maidens for capital. Even with the supposedly good onesanti-war libertarianswere still talking about people who think Medicares going to lead to Stalinism.

So my advice is to call them out.

Ask them what their beef really is with the welfare state. First, theyll talk about the deficit and say we just cant afford entitlement programs. Well, thats obviously a joke, so move on. Then theyll say that it gives the government tyrannical power. Okay. Let me know when the Danes open a Guantnamo Bay in Greenland.

Heres the real reason libertarians hate the idea. The welfare state is a check against servility towards the rich. A strong welfare state would give us the power to say Fuck You to our bossesthis is the power to say Im gonna work odd jobs for twenty hours a week while I work on my driftwood sculptures and play keyboards in my chillwave band. And Ill still be able to go to the doctor and make rent.

Sounds like freedom to me.

Connor Kilpatrick is the managing editor of Jacobin magazine.

Would you like to know more? Read Thirty More Years of Hell and Silent Majority Millennials by Connor Kilpatrick.

Read more: child labor laws, deficit, democratic party, fascism, fdr, george will, ha-joon chang, libertarian, ludwig von mises, lyndon larouche, medicare, millennials, nick gillespie, pinochet, reason, ron paul, Singapore, social security, socialism, Tea Party, Connor Kilpatrick, Class War For Idiots, Libertards

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Its Hip! Its Cool! Its Libertarianism! – By Connor …

The Book | Treasure Islands: Tax Havens and the men who …

 Tax Havens  Comments Off on The Book | Treasure Islands: Tax Havens and the men who …
Sep 212015
 

Millions of people have a queasy feeling that something is not right in the global economy but they struggle to put their fingers on what exactly the problem is. Treasure Islands at last tells the real story of where it all went wrong. This is the great untold story of globalisation.

Tax havens are not exotic, murky sideshows at the fringes of the world economy: they lie at its centre. Half of world trade flows, at least on paper, through tax havens. Every multinational corporation uses them routinely. The biggest users of tax havens by far are not terrorists, spivs, celebrities or Mafiosi but banks.

Tax havens are the ultimate source of strength for our global elites. Just as European nobles once consolidated their unaccountable powers in fortified castles, to better subjugate and extract tribute from the surrounding peasantry, so financial capital has coalesced in their modern equivalent today: the tax havens. In these fortified nodes of secret, unaccountable political and economic power, financial and criminal interests have come together to capture local political systems and turn the havens into their own private law-making factories, protected against outside interference by the worlds most powerful countries most especially Britain. Treasure Islands will, for the first time, show the blood and guts of just how they do it.

Tax havens arent just about tax. They are about escape escape from criminal laws, escape from creditors, escape from tax, escape from prudent financial regulation above all, escape from democratic scrutiny and accountability. Tax havens get rich by taking fees for providing these escape routes. This is their core line of business. It is what they do.

These escape routes transform the merely powerful into the untouchable. Dont tax or regulate us or we will flee offshore! the financiers cry, and elected politicians around the world crawl on their bellies and capitulate. And so tax havens lead a global race to the bottom to offer deeper secrecy, ever laxer financial regulations, and ever more sophisticated tax loopholes. They have become the silent battering rams of financial deregulation, forcing countries to remove financial regulations, to cut taxes and restraints on the wealthy, and to shift all the risks, costs and taxes onto the backs of the rest of us. In the process democracy unravels and the offshore system pushes ever further onshore. The worlds two most important tax havens today are United States and Britain.

Without understanding offshore, we will never understand the history of the modern world.

Poverty in Africa? Offshore is at the heart of the matter. Industrial-scale corruption and the wholesale subversion of governments by criminalised interests, across the developing world? Offshore is central to the story, every time. The systematic looting of the former Soviet Union and the merging of the nuclear-armed countrys intelligence apparatus with organized crime, is a story that unfolds substantially in London and its offshore satellites. Saddam Hussein used tax havens to buttress his power, as does North Koreas Kim Jong-Il today. Prime Minister Silvio Berlusconis strange hold over Italian politics is very much an offshore tale. The Elf Affair, Europes biggest ever corruption scandal, had secrecy jurisdictions at its core. Arms smuggling to terrorist organisations? The growth of mafia empires? Offshore. You can only fit about $1 million into a briefcase: without offshore, the illegal drugs trade would be a fraction of its size.

Private equity and hedge funds? Goldman Sachs? Citigroup? These are all creatures of offshore. The scandals of Enron, Parmalat, Long Term Capital Management, Lehman Brothers, AIG and many more? Tax havens lay behind them all. The rise of multinationals, the explosion of debt in advanced economies since the 1970s is substantially an offshore tale. Complex monopolies, frauds, insider trading rings these corruptions of free markets always have tax havens at their heart. As Treasure Islands explains in vivid, thrilling, horrifying detail, every big financial crisis since the 1970s including the great global crisis that erupted in 2007 has been a creature of the tax havens.

These problems all have other explanations too. Tax havens are never the only story, because offshore exists only in relation to elsewhere. That is why it is called offshore. Without understanding the tax havens, or the secrecy jurisdictions as I often prefer to call them, we cannot understand the world. Treasure Islands at last starts to fill this gigantic hole in modern history.

In short, it is the most important expos of tax havens ever published.

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