Adrian Hester

The US Constitution is not common law (though it accepts common law when it's the basis of a state's law). It's obvious you don't even know what the term means. All these "crimes against nature" are criminal acts because common law said so. Not in common law itself it isn't. Common law is by definition a combination of unwritten law and case law (with the cases decided on the basis of unwritten law). In common law, a case decided 700 years ago or a legal procedure (like the various kinds of writ) established 700 years ago can be relevant. (How do you know? Well, the judge will decide whether it is.) You mean, you want objective written law--in other words, statutory law! You obviously don't know what "statute" means either--statutes are quite simply written law. All statutes require is literate legislators! And you still don't seem to know what "jurisdiction" means either. "Common law if worded correctly"? That wouldn't be common law, it would be statutory law! Please, go learn the basics of American legal theory. Your argument is deeply misguided. [split into next post with wording exactly intact. --Matt]

Reread the passage I quoted. It's blatantly rationalistic. (Italics added.) You're missing a lot here. I wasn't talking about marrying a theist, I was responding to tommyedison's blanket claim that a fully-integrated Objectivist would be immoral to marry a student of Objectivism, any student of Objectivism as such, anyone at all besides another fully-integrated Objectivist. Theism wasn't involved.

No, it's an exact identification. He said that a fully-integrated Objectivist marrying a student of Objectivism would be immoral because it would not lead to as much happiness as would his possibly marrying a fully-integrated Objectivist in the future. Yes, it might make you happy, which is presumably a good thing, but you could be fully happy otherwise (more to the point, you can imagine yourself being happier under other circumstances, even though they're not actually here right now and there's no way you can act so as to create those better conditions, since it's a matter of others' free will), so you shouldn't do it. It's a perfect example of condemning something that is good for not being ideal. I'm sorry, I didn't know that disagreeing with your position was uncivil.

Or "parliamentary supremacy." This was argued in the 1760s in Blackstone's Commentaries, but it didn't spread to the law of the American colonies before the Revolution; in fact, the principle of parliamentary supremacy was a major bone of contention between England and the colonies. On the other hand, it was flourishing by the time South Africa became independent; apartheid was enacted on its basis. (This I remember from John Dugard's Human Rights and the South African Legal Order (1978), which made the point in the first few pages that apartheid depended crucially on the doctrine of parliamentary supremacy. This was ended in 1994 in South Africa, by the way, with the adoption of the Interim Constitution.)

What a perfect example of rationalism, condemning the good as the enemy of the ideal.

I'll quote the relevant sections of the Slaughter-House Cases (1873): Section 2: "The Parliament of Great Britain and the State legislatures of this country have always exercised the power of granting exclusive rights when they were necessary and proper to effectuate a purpose which had in view the public good, and the power here exercised is of that class, and has, until now, never been denied." "Exclusive rights" (the first section uses the phrase "exclusive right or privilege," which is a distinct matter from "privileges and immunities" in constitutional law; see the last paragraph, below) include such things as state-supported monopolies. The "privileges and immunities" clause in the XIVth Amendment seems in part to have been intended to extend federal authority over the states in this respect, and thus would have led to a massive centralisation of government in the federal level and probably would have opened up much of the economy to federal intervention. (There's a good summary of this here.) The Court decided that the XIVth Amendment protected only the privileges and immunities belonging to national citizenship, not state citizenship, which made the clause redundant. The decision is also well worth reading because it gives a good idea of what "privileges and immunities" meant in law at the time: Basically, in constitutional law, I gather, "privileges and immunities" refers specifically to the fundamental rights secured by a constitution, and is understood to be quite different from privilege or immunity referring to specially granted legal exemptions which can be revoked by later laws. It's wrong then to take the phrase as used in the XIVth Amendment as replacing inalienable rights by changeable legal fictions; however, the intent of the clause would seem to have been to extend the meaning of the phrase rather dangerously and to have run together "privilege" in the usual sense and in the distinct constitutional sense. (Mind you, I'm not a lawyer or legal historian, so I might be missing other important points.)

What do you mean by "when 'governments' became corporate"? What is a non-corporate government? What do you understand the term "jurisdiction" to mean?

The existence of bad statutory law doesn't invalidate statutory law as such any more than judges' bad decisions invalidate case law (or common law). But then that would make them subjects and not citizens, right? Why do you object to the term "subject to [a given] jurisdiction" but not "subject to laws"?

No, business corporations owe their existence to the businessmen who founded them. People have a right to associate for trade and they have a right to the property by which they carry this out, and corporate law is devoted to codifying how these rights are to be recognized and protected in law. The fact that governments have established set procedures for incorporation doesn't make corporations the creation of the state any more than set procedures for marriage make marriages creations of the state, nor does it mean that the details of married life can be legitimately regulated by some watchdog government agency. [Edited to correct the grammar in the last sentence.]

No, it is quite relevant. You argue that the XIVth Amendment ushered in a fundamental change in constitutional law, and you claimed that this is shown by the very words of the amendment. I'm simply pointing out that you haven't given any examples where the meanings of the words changed from the Constitution. Constitutional history is not done by free associating like a Freudian. Yes, and...Are you saying you're opposed to jury trials? To judges deciding legal cases? Why is the term "jurisdiction" so objectionable to you? All you've shown is that you are allergic to the word "subject" in any of its uses. You certainly haven't shown that the XIVth Amendment turned "citizens" into "subjects" just because it said that citizens are subject to American jurisdiction. After all, the Constitution itself used the same terminology: "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." (Article I Section 3, my italics.) Ah, but you haven't actually shown that the XIVth Amendment "created a corporate identity for every citizen." (Saying that it's because they were declared subject to American jurisdiction won't cut it.) Perhaps you should explain what you mean by this before the discussion goes any further. You should stick to your day job and skip the mind-reading act--you're an abyssmal failure at it.

[Text of the XIVth Amendment snipped.] No, it is a legal term meaning an individual or an organization with legal rights and responsibilities. "Person" is the legal term in the Constitution itself for an individual: "No Person shall be a Representative..." (Article I Section 2), for example. It is distinct from "Citizen," as in the notorious clause: "Representatives and direct Taxes shall be apportioned...according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons." (Article I Section 2.) Incidentally, Supreme Court decisions ruled as early as 1870 (Insurance Co. v. New Orleans) that "person" in the amendment referred only to individuals, not to corporations. No, "subject to" (as opposed to "subject of") is applied to free men; it's simply a neutral term referring here to jurisdiction (a point you muddy by cutting apart the whole phrase you quoted: "subject to the jurisdiction thereof"). The reason for including the phrase was to exclude it from applying to such people as children of foreign ambassadors born in the United States, members of Indian tribes, and children of enemies of the United States occupying American land. "Citizen" is the term used in the Constitution itself: "No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States..." (Article I Section 2.) "No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States..." (Article I Section 3.) "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President..." (Article II Section 1.) (The reason for distinguishing between "natural-born citizens" and "citizens of the United States," I gather, was to allow foreign-born citizens like Alexander Hamilton to qualify for the presidency.) And also note the language of Article III Section 2 on the scope of federal judicial power: "all Cases...between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." (So there you see a solid distinction between "citizens" and "subjects" in the Constitution--quite the opposite of your blithely equating the two. If I remember correctly, "citizens" lived in a republic, "subjects" in a monarchy.) In any case, before the 14th Amerndment, there was, I gather, no uniform criterion for who was a United States citizen and who was not; that was set by the state in which a person was born or by the federal government in the case of naturalized citizens. And in the Dred Scott decision, the Supreme Court declared that blacks could not under any circumstances be made citizens of the United States (they could only be citizens of the state in which they lived), even if their ancestors were free blacks at the time of the adoption of the Constitution. The XIVth Amendment repudiated that. No. It comes from sedere "to sit, be located," and in Latin residere meant "to remain." (The combining form of the word res is re-, as in "reify" and "real"; it's distinct from the prefix re- in "reside.") Except, for example, in Article III Section 2 above, in which "State," "Citizen," and even "Land" and "Grant" were capitalized. Pretty much all nouns were capitalized in the Constitution. It's interesting that JDX doesn't discuss the language in the Amendment which is objectionable, "privileges and immunities." (This language was struck down by the Supreme Court in the Slaughter-House Cases in 1873 as threatening to concentrate far too much authority into federal hands.)

Are you kidding? They suffered greatly from disease. The colony was located right about where salt water and fresh water met in summertime, so the river was salty, stagnant and muddy. Human wastes weren't disposed of far away from the fort either, but rather festered and contaminated the drinking supply, causing dysentery, typhus, and other delightful treats.

I skimmed the first part of the book a few months ago and liked what I read against the postmodernist historians; however, his chapter on the debate in anthropology between Marshall Sahlins and Gananath Obeyesekere was thoroughly misguided and in at least a couple of places simply wrong. I was very disappointed. (This review has a good summary of Windschuttle's conclusions; you should read it if you're not familiar with the chapter.) In short, Sahlins has published a number of anthropological and historiographical articles and books about Captain Cook's death in the Hawaiian Islands in which he relates it to Hawaiian religious beliefs, as nearly as they can be determined from contemporary European accounts and later Hawaiian beliefs. How well he succeeds in this is a matter of debate, but as it's standard structuralist anthropology it's not postmodern--postmoderns like Derrida and Foucault attack structuralism as the starting point for their relativistic pronouncements since it claims that outsiders can understand a different culture. Obeyesekere attacks Sahlins on somewhat the same grounds: He claims that since he himself is from the third world (Sri Lanka), he has a special natural understanding of nonwestern cultures that westerners like Captain Cook and his sailors, and worst of all Sahlins, simply don't have. Methodologically Obeyesekere arbitrarily picks and chooses whatever he likes from Sahlins' evidence, dismissing anything that doesn't fit his scheme precisely because it was recorded by Englishmen or later missionaries (who recorded Hawaiian religious beliefs starting about 1820), a method he defends by claiming that there is a common "practical reason" that Sri Lankans, Hawaiians, and all other non-Europeans possess, but which the European observers Sahlins relied on are not privy to because they were westerners. In the book Windschuttle discussed, How Natives Think, Sahlins made mincemeat of Obeyesekere's arguments, and rightly so--they would disallow the possibility of scientific anthropology by westerners (and on general historiographical grounds Obeyesekere's arguments are a mess). In particular, Sahlins criticized Obeyesekere's conception of this "practical reason," which consisted essentially of judging prechristian Hawaiian society as if it were Sri Lankan society, and methodologically it is much the same as claiming that all cultures share the tacit (broadly Newtonian, mechanistic, nonmagical) physical worldview of modern Americans and Europeans. That is the point at which Windschuttle begins arguing against Sahlins, who without this context sounds sort of like a typical academic relativist, but in fact Sahlins was arguing for a scientific approach to anthropology against a relativist (more precisely, anti-European) approach. Sahlins argues that Obeyesekere's idea of "practical reason" tries to understand a given culture in terms of another rather than teasing out how the people in that culture actually classify the parts of the world and conceive of how they interact. A prominent example he gives is one that Windschuttle seems to have misunderstood entirely: The classification of foodstuffs in (if I remember correctly) a New Guinean language into six basic categories (corresponding to their social roles) that cut across western categories of meat, vegetables, fruit, and so on. Even on the most basic level, therefore, this culture does not "cut up the world" the same way a typical American (or Sri Lankan) would, so relying on "practical reason" would obscure basic facts about the culture. Windschuttle took this as claiming that a classification of foodstuffs based on a scientific understanding of the world is impossible, but that's not what Sahlins argued. Windschuttle further argued that Sahlins therefore was forced to conclude that it is impossible for an outsider to understand another culture, and thus was a deep-dyed relativist. Of course, it would be contradictory for an anthropologist to claim that since the whole point of anthropology is a scientific, objective understanding of culture, but it's not what Sahlins claimed. (If I remember correctly, Sahlins said that that just means it's difficult for an outsider to learn how another culture fits together, but that's no news.) And I'll add that the review approvingly repeats one of Windschuttle's more spectacular errors: This last claim is simply false: Sahlins explicitly attributes the passage to Borges and not Foucault in the sentence introducing the quote (I know because the quote automatically triggers my most critical mood, so I paid close attention to how Sahlins used it); and while it wasn't entirely clear to me what Sahlins intended by it, it seemed to have been intended simply as an example of how outsiders are likely to feel when trying to understand another culture. Well, that was a lot longer than I intended to write when I started, but it's worth the detail. Mind, you shouldn't conclude that Sahlins is a prince among thinkers; his discussion of western worldviews and philosophies in How Natives Think is pretty damn poor, for example (though I'd have to reread that section to be able to comment further), but it's irrelevant to Windschuttle's claims.

"Psychological error"? Not necessarily. Hair color can clash with or match eye color and skin color; that's a question again of the harmonious arrangement of the face. And I like the looks of women with very short hair, provided they have the long well-sculpted necks that such styles set off well. How, pray tell, is this difference a sign of evasion or other immorality on my part, or hers? If it's not, why not?

Yes, yes, I'm very well aware of the acoustic facts. (And to be perfectly precise, the peaks and valleys don't have to intersect, or be aligned rather, for the human ear is largely insensitive to phase differences.) The question is, why do you gain pleasure from periodic sounds as opposed to nonperiodic ones? The human ear is equally able to analyze periodic and nonperiodic sounds, but only (certain) periodic sounds are pleasurable. (Moreover, the auditory system "fills in" fundamental frequencies when only the lowest overtones are heard. Conversely, noise is pretty much just that--noise. The auditory system can analyze noise quite well--it's essential in discriminating among different consonants, for example--but there's no pleasurable sensation deriving from it.) The auditory system is biased towards the perception of periodic sounds. That is what has a physiological basis, in the same way that certain smells are pleasant and others are not, and just as certain combinations of colors or shapes are pleasurable as such. Did you mean to write "physiological" there? In any case, I'm not saying it's purely physiological, but instead that it has a physiological basis. That doesn't follow. If there were no auditory bias towards periodic sounds, then it's doubtful that either periodic or non-periodic sounds would be distinctly more pleasant. The thing is that tabula rasa refers to the conceptual content of man's mind; it says nothing per se about the perceptual faculties on which concepts are based. Certain harmonies are pleasant, but that's only the most basic fact about music, which is largely conceptual (such things as themes are conceptual units, for example, as are such qualities as the key of a musical passage). Noise (apart from percussion, which serves a largely rhythmic function) is automatically excluded from music because there's no pleasurable sensation deriving from it; atonality on the other hand is essentially conceptual. Similarly, there is probably a physiological basis to certain types of esthetic judgments summed up as "harmonious arrangement." "Physchologically"? I assume you mean "psychologically." Actually, there are some atonal pieces I like, such as Berg's Violin Concerto; you'd do well in future not to psychologize about me. (Remember that atonality is an entirely different matter than noise. Serial music uses the same notes as tonal music, it simply uses them in such a way as to eliminate any overall tonal center.) And if a person has a pleasing aspect, that is of some small value by that very fact; but any personal relationship requires greater values. That is different from the implications of your postings earlier in the thread, which is that a pleasing aspect is of no value at all.