Category: law

A Pelican Ate a Lemon and the Kindness Test

Mark Davis1 Comment

The Pelican State, Louisiana, just passed a law requiring the display of the Ten Commandments in public schools. The posters have a specified size and must be paid for by private donations. The purpose of the law is a blatant attempt to get religion back in public schools but the legal convolutions for trying it out once again are rather interesting, though I don’t think the reasoning will work.

Here’s an NPR interview with Matt Krause of the First Liberty Institute that defends religious liberty cases and supports the new law. He specifically singles out Kennedy v. Bremerton School District as showing a path forward for the Decalogue to reappear on schoolhouse walls. In Kennedy, a football coach would go pray at the 50-yard-line after games. He didn’t gather students with him or utter prayers over a loudspeaker. He just prayed alone. The school district fired him because they were nervous about the separation of church and state and the appearance of endorsement by the school system due to an employee acting religious. SCOTUS, however, used a balancing test between the coach’s First Amendment rights and the school’s desire for non-endorsement and concluded that the school system went too far. Krause thinks that the suspension in Kennedy of a hard delimitation gained from Lemon v. Kurtzman and the adoption of a weaker “history and tradition” standard creates a gap that the Decalogue can sneak through.

I doubt it. The balancing in Kennedy sheds little light on schoolhouse Ten Commandments posters which were ruled against in Stone v. Graham. In Stone, a strict “Lemon test” was applied to the display and it was found to have no secular purpose.… Read the rest

A Manifold of Non-Tiresome Heavens

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It’s the rage these days to wax indignant over the rise of authoritarian figures around the world. From Trump to Putin, Victor Orban, and the right-wing parties of Europe, the fear is that our experiment in post-World War II and then post-Cold War liberalism is at risk of being distorted and abraded by a desire for cultural uniformity. A common refrain is that the visibility of and legal restructuring around LGBTQ+ and ethnic/minority communities, as well as a sprinkling of environmentalism, is moving so quickly that a slight majority of the electorate wants to stand in the path of change “yelling stop,” to paraphrase Bill Buckley. Ripple effects then will break down the slow-built institutions that define contemporary liberal democracies and soon we have concentration camps for dissenters.

In America, there are nostalgic swoons for Ronald Reagan and some idealized middle-class heaven from the economic growth-phase of the 1950s when everyone went to church and the worst swear word was “golly gee!” The uniformity and comfort that people felt about their roles in their communities combined with a bedrock belief in family, faith, and devotion to country that was as reliable as America’s continuous economic growth. It was good to be alive and all the backward peoples of the world would maybe someday catch up if they didn’t all die of famine first.

But I can never quite understand what those who lean authoritarian want for their future world? I call most of the hypothetical visions “tiresome heavens” because they reflect the old joke of how Christian heaven must be a monotonous, uniform place. Just sit around in perfect blissful union with one’s Creator. Nothing really to do, no stressors, no wants, no struggles; it is a transcendent promise that is more geologic than human.… Read the rest

Entanglements: Collected Short Works

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Now available in Kindle, softcover, and hardcover versions, Entanglements assembles a decade of short works by author, scientist, entrepreneur, and inventor Mark William Davis.

The fiction includes an intimate experimental triptych on the evolution of sexual identities. A genre-defying poetic meditation on creativity and environmental holocaust competes with conventional science fiction about quantum consciousness and virtual worlds. A postmodern interrogation of the intersection of storytelling and film rounds out the collected works as a counterpoint to an introductory dive into the ethics of altruism.

The nonfiction is divided into topics ranging from literary theory to philosophical concerns of religion, science, and artificial intelligence. Legal theories are magnified to examine the meaning of liberty and autonomy. A qualitative mathematics of free will is developed over the course of two essays and contextualized as part of the algorithm of evolution. What meaning really amounts to is always a central concern, whether discussing politics, culture, or ideas.

The works show the author’s own evolution in his thinking of our entanglement with reality as driven by underlying metaphors that transect science, reason, and society. For Davis, metaphors and the constellations of words that help frame them are the raw materials of thought, and their evolution and refinement is the central narrative of our growth as individuals in a webwork of societies and systems.

Entanglements is for readers who are in love with ideas and the networks of language that support and enervate them. It is a metalinguistic swim along a polychromatic reef of thought where fiction and nonfictional analysis coexist like coral and fish in a greater ecosystem.

Mark William Davis is the author of three dozen scientific papers and patents in cognitive science, search, machine translation, and even the structure of art.… Read the rest

An Exegetic Theory of Liberty

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A modest proposal:

Congress shall make no law interfering with medical decisions except in the case of public health and in the regulation of the practice of medicine.

But now we immediately face daunting challenges about the meaning of these terms. What are the limits of a “medical decision?” What are the limits of the public health clause? Can the regulation of the practice of medicine impinge on medical decisions if, for example, a procedure is regulated out of availability? Does this create an immediate tension between the preamble and the restrictive clauses?

Let’s take a version of Putnam’s concerns about meaning. What is a neutrino? Many people would simply shrug and admit that they don’t know. Some would recall something like a particle that can pass through stuff. A few of these who have some physics or are widely read might say that they are very light particles that emerge from neutron decay and are needed to balance the nuclear decay equation. This last series of images might include thoughts about giant underground detector baths of water or mineral oil or something. In general, though, we can conclude that defining something that is physical, measurable, but incomplete is a daunting task.

Legal theories have this kind of amorphous semantics, especially with regard to concepts like “liberty.” We certainly have some indelible images like “your liberty ends at my nose” but that doesn’t create a very effective template for legal decision trees. Does a stand-your-ground law preserve my liberty to self-defense or is it an excessive application of force when the two parties’ joint right to life is better preserved by a duty to retreat? Dobbs v. Jackson Women’s Health Organization lays out the problem of defining liberty:

“Liberty” is a capacious term.

… Read the rest

Flailing in the Think Tanks

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Despite my best efforts to find some depth in modern intellectual conservatism, instead about the best we get is just about the worst imaginable. Much discussed is the Atlantic piece by Harvard Law professor Adrian Vermeule who argues for what he calls “common good constitutionalism” that asserts that an authoritarian assurance in defining a moral basis for legal decisions is best for all of us. Individual concepts of life and liberty be damned:

…that each individual may ‘define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life’ should be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after. So too should the libertarian assumptions central to free-speech law and free-speech ideology—that government is forbidden to judge the quality and moral worth of public speech, that “one man’s vulgarity is another’s lyric,”  and so on—fall under the ax. Libertarian conceptions of property rights and economic rights will also have to go, insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources.

Vermeule’s opening salvo is that the doctrine of originalism that conservative legal thinkers have hewed to has shown little progress in reversing the trend towards greater and more expansive liberties. These freedoms, without paternalistic guidance, take us down the slippery slope of moral turpitude. We need stronger hands at the tiller who can properly control the minds of the mob for their own good. In reality, though, Vermeule is just a “Catholic integralist” in disguise, which is to say he is promoting a kind of theocracy where law is subservient to the best guesses of Catholicism.… Read the rest

The Illiberal, Openness, and Oppression

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Continuing on with my fascination with intellectual conservatism (just removed denigrating scare quotes at the last minute), Sohrab Ahmari vs. David French is a curious anomaly to me, though it may have been always lurking below the surface. Certainly, going back to the Moral Majority, the desire of conservatives to have their version of Christianity play a greater role in US governance has been with us in terms of voting patterns and cultural preferences, but the notion that among the intelligentsia there was a desire for some kind of Christian Dominionism or at least greater control of the public square is not a perspective I’ve encountered. Instead, there were more targeted approaches like criticizing Roe v. Wade on the basis of constitutional arguments and legal ideas, or working towards expanding tax-dollar flows to home schoolers or other select (I originally wrote “fringe” here, but need to work on my neutral voice language that ebbs and flows) religious ideas. The religious deserved to not be disregarded in the face of cultural drift.

It’s worth noting that using the US Constitution as a touchstone for bolstering protections for the religious seems to most of us as a secular appeal rather than a scriptural or theological one. Such an approach squares nicely with our increasing defense of the rights and freedoms of groups previously marginalized or discriminated against. Yet part of the right (Ahmari and a pastor named Doug Wilson, at least; French is their foe) sees a desire for greater cultural and political control as actually rooted in that legal basis. After all, if reason is intrinsically derived from their god, then the reason in the American Experiment is always and inextricably tied to that god.… Read the rest

The Dynamics of Dignity

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My wife got a Jeep Wrangler Unlimited Rubicon a few days back. It has necessitated a new education in off-road machinery like locking axles, low 4, and disconnectable sway bars. It seemed the right choice for our reinsertion into New Mexico, a land that was only partially accessible by cheap, whatever-you-can-afford, vehicles twenty years ago when we were grad students. So we had to start driving random off-road locations and found Faulkner’s Canyon in the Robledos. Billy the Kid used this area as a refuge at one point and we searched out his hidey-hole this morning but ran out of LTE coverage and couldn’t confirm the specific site until returning from our adventure. We will try another day!

Billy the Kid was, of course, a killer of questionable moral standing.

With the Neil Gorsuch nomination to SCOTUS, his role in the legal and moral philosophies surrounding assisted suicide has come under scrutiny. In everyday discussions, the topic often centers on the notion of dignity for the dying. Indeed, the autonomy of the person (and with it some assumption of rational choice) combines with a consideration of alternatives to the human-induced death based on pain, discomfort, loss of physical or mental faculties, and also the future-looking speculation about these possibilities.

Now I combined legal and moral in the same sentence because that is also one way to consider the way in which law is or ought to be formulated. But, in fact, one can also claim that the two don’t need to overlap; law can exist simply as a system of rules that does not include moral repercussions and, if the two have a similar effect on behavior, it is merely a happenstance.… Read the rest