Seeker
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Posts posted by Seeker
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I hope someone is informed enough to comment.
What is the significance of this? How likely that this can actually prevent this bill from becoming the law of the entire land?
How much self-governing power do the states still have vs. the federal government?
The most interesting analysis I've seen is by Randy Barnett in the Washington Post: Is health-care reform constitutional?.
The likeliest target may be the "individual mandate" to buy health insurance. It isn't a regulation of interstate commerce because it purports to regulate not economic activity, but inactivity. In addition, the tax penalty in the Senate bill appears to be sloppily written so that it isn't even a tax on a percentage of income but rather imposes a fixed dollar amount. I am not an expert by any means, but I think that fixed dollar amount approach was really, really stupid from a constitutional perspective, because it has nothing to do with income (even though low income households are exempted) and can't be justified under the Sixteenth Amendment; it is essentially a Capitation Tax on persons, which is forbidden under Article I unless it's in proportion to each state's population (and this is not). My guess? Five justices may very well strike down the individual mandate for these or similar reasons.
Perversely, however, the loss of the individual mandate may hasten the demise of private health insurance as it would represent a loss of income for insurance companies, especially if the ban on excluding pre-existing conditions stands. Then the government would step in with single-payer since "the free market failed".
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Rights are freedoms of action
This idea cannot be repeated enough. It's a shame that politicians in the opposition don't repeat it until it is firmly set in people's minds.
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Jefferson was objecting to raw, unprocessed, majority rule Democracy. That sort of rule is mob rule. The business of the state and a general plan is a doctrine that protects rights from abrogation by the passions of a temporary majority in the Body Politic. Our Constitution is an example of what Jefferson was referring to.
Bob Kolker
Jefferson's Bill for the More General Diffusion of Knowledge better fits the description of the "general plan" that he had in mind than the Constitution. Proposed to the Virginia General Assembly, it called for establishment by law and public financing of education.
To his credit, Jefferson sought to secularize education rather than leaving it in the hands of religious authorities and institutions.
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The only equitable solution is to get the state out of education altogether and let individuals run schools as they see fit -- in other words completely privatize the schools.
"It is an axiom in my mind that our liberty can never be safe but in the hands of the people themselves, and that too of the people with a certain degree of instruction. This it is the business of the state to effect, and on a general plan." - Thomas Jefferson to George Washington, January 4, 1786
Oh, the irony.
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Gender roles are justified on a false basis of sexuality. They are not characteristics of a sex or sexuality. I cannot legitimately link concepts of gender roles to sexuality. Can you really tell me you know anything about the sexuality of a woman who likes working with cars? As I said before, I'm not even sure the concept of 'gender' is important, though of course the concept of 'sex' is. This is kind of a tangent here, I know, since this does not directly relate to any argument about transgenderism.
Legitimate concepts of masculinity and femininity do exist. See, for example, the entry on Femininity at the Ayn Rand Lexicon: "For a woman qua woman, the essence of femininity is hero-worship—the desire to look up to man. ... the object of her worship is specifically his masculinity, not any human virtue she might lack. ... It means that she never loses the awareness of her own sexual identity and theirs. It means that a properly feminine woman does not treat men as if she were their pal, sister, mother—or leader."
At a minimum, the classic example of a man's desire for penetrative sex is a gender role that you cannot seriously argue "is justified on a false basis of sexuality".
To be sure, many historical gender roles have been false and damaging - no one here contends, for instance, that women shouldn't have the right to vote. To say that some gender roles are justified is not to say that all are justified.
At the same time, I don't think that one can entirely dismiss the concept of gender. In a social context, men and women seeking sexual partners have a legitimate interest in knowing who can and cannot fulfill the act. Men and women must be able to identify one another as such. Moreover, norms like wearing clothes that accentuate one's physical beauty, e.g. dresses for females, are entirely appropriate in that they recognize and emphasize that value. The examples are as numerous as the topic is complex, so I will just close by saying that it is precisely the gender roles that are legitimately justified for men and women that may likewise affect transgendered persons most significantly.
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I would say both of those ideas are based on tradition. That women tend to prefer powerful, capable men only suggests a long-held tradition.
They may be traditions, the point however is that these ideas, norms, traditions, etc. are rooted in sexuality, contra your assertion that "a gender role has nothing to do with sexuality". My point was that, but for sexuality, our concepts of gender would serve no purpose and would not even exist; that one's sexual characteristics, objectively ascertained, are the fundamental basis for making a determination of one's gender and hence, are the objective criteria for determining whether a person is "transgender". I am defending the concept of transgender as objectively valid, and saying that sexuality is why the concept is relevant and needed at all. Perhaps the best way to phrase it is that sexual characteristics determine sexuality and gender.
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"Working with tools" certainly is a gender role, and it is arbitrarily assigned to men. I do not see how that has any relation to sexuality. It might only relate in the sense of "it's something men tend to do," and since most men are heterosexual, those who follow a gender role tend to be heterosexual. But following such a role, or enjoying working with tools, would not be an indicator at all of what the sex someone is attracted to. I would say a gender role fundamentally depends on norms that are based on nothing more than tradition and stereotypes.
Well, working with tools is a demonstration of power and competence. Women tend to prefer powerful, capable men as their sexual partners. Gender roles that demand the male demonstrate power and competence are therefore not arbitrary and indeed are rooted in sexuality. Furthermore, it is precisely the sexual abnormalities of transgendered individuals that render those stereotypes inapplicable to them.
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In my opinion, that suggests a distinction between the terms 'sex' and 'gender' is unnecessary, meaning that only the term 'sex' really tells you any useful information.
I think you're on the right track. But wait ...
A gender role has nothing to do with sexuality.I think that this statement is palpably absurd. If not for sexuality, the concepts "male" and "female" would not exist (except perhaps in the science of medicine). We simply wouldn't care about what type of genitalia a baby has if it weren't for the importance of sexuality in life. Sexuality is the root of the concepts "male" and "female"; more than any other single thing, it explains why those concepts are needed. Otherwise, we'd effectively have a single neuter gender applied to everyone (again, save for the field of medicine where it might make a difference). Having a penis would be no more significant than having large feet.
Can you give an example of a gender role that does not fundamentally depend on sexuality? The classic criteria of judging manhood, for instance, is the act of (or desire for) penetrative heterosexual sex. If you say "working with tools", I'll be obliged to explain how that also fundamentally depends on sexuality and the discussion could get really (or at least somewhat) interesting.
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I may have thought you meant 'sexuality determines gender', though you seem to mean one's genitalia (their sex) then implies their gender. For me that sounds redundant, gender-identity is probably a better way to phrase the term 'gender' (and if that is precisely what gender is supposed to mean, then I just used the term incorrectly as I suspect). If you mean it that way, as I think you do, I'd still say 'sex does not determine gender'. I can elaborate further depending on your response to this.
To add some meat to this (no pun intended), I think that sex determines gender because of the importance of sexuality. The reason why men and women are raised differently, i.e. given distinct gender roles -- why we ask if the baby is a boy or a girl -- depends primarily on the importance of sexuality in life. This relates to the concept of transgender as follows: a transgender person will have male or female genitalia, but because of their other contrary attributes (e.g. brain structure, hormones etc.) will not be able to pursue the value of sex according to their gender. So although genitalia will initially determine one's gender, if it is subsequently discovered that the person has mixed attributes to the detriment of their sexual functioning, then another concept is needed and that concept is "transgender". But also because of that, it would be inappropriate to regard a transgender person as "male" or "female", because they are neither -- unless and until medical treatment resolves the problem.
I would not use the term "gender identity" because I think that that is redundant. What "identity" does the phrase "gender identity" refer to? It refers to gender.
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I think I may have been confused on what you mean by 'sex determining gender'. Can you give a specific example, hypothetical or actual, of how it is true?
The process of formation of the concepts "male" and "female" is complicated, but I can give a simple example of how those concepts are applied in everyday life to verify the premise that sex determines gender. When a baby is born the first thing that everybody asks is, "is it a boy or a girl?" How do they know? They do not do a test of the baby's chromosomes, ask it how it feels, or do an MRI scan of its brain. They simply examine its genitalia.
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I can understand the validity of the concept "transgender" insofar as it applies to someone having (for want of a better phrase) mixed metaphysical attributes -- something along the lines of someone having male genitalia but a "female" brain structure, let's say. So, okay, that person is transgender. But then, isn't the whole point of the medical treatment (surgery, medication, whatever) to eliminate that mixture so that the attributes are in harmony one way or the other? The correct designation then would not be "transgender, male to female" but (for the procedure) "transgender to female" and (for the gender designation) simply "female". Or alternatively, if the treatment fails to correct the disharmony, then they simply remain "transgender". I don't see how it can be both.
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Your point seems to be just that one would be a "broken unit," and at this point I'm inclined to agree with that, but does that mean it is bad for an individual? Not always. Who really cares if they can't function as a male anymore, in the sense they can no longer fertilize eggs, the only characteristic that would defines a person as male? What would that even change, besides the single thing I already mentioned?
I'm curious as to why you think sex determines gender (I don't agree).
I don't want to equivocate here on the meaning of the word "male" and "female". I am using these as nouns, not adjectives. I think that the fundamental reason why those concepts exist is because a way is needed to differentiate people in choosing reproductive partners. So for that purpose, it's completely relevant whether or not one can function reproductively qua male or female. But suppose that I'm wrong, and the purpose of the concept isn't to choose sexual partners for reproduction but simply for sexual intercourse. Even then, you wouldn't necessarily have a broken unit, but you would still have a male or female depending on the sex organs, so I would still say that sex determines gender.
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Supposing I take a prefabricated wooden chair and knock it into pieces. All of the slots and pegs and design of the individual pieces reflect that it was a chair. Then I chop and re-arrange the pieces and glue them back together as a table, only there's a leg missing, so the table lies crooked. It's a table, but it's a broken table that can't function as a table. It's a broken unit, but it's still a table now and not a chair.
A male has the capacity to fertilize an egg cell in sexual reproduction; a female produces ova and bears young. A unit of either of these types that cannot perform these functions is a broken unit. That could be due to age, or it could be due to having gender re-assignment surgery that falls short of complete transformation. It is what it is, but it is not the best, and it is not up to the individual's subjective whim to alter this one way or the other. So I would say that, yes, sex determines gender -- but unless the transformation is complete, i.e. enables reproduction, that male or female is fundamentally a broken unit of the concept.
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A sex change would not change the metaphysics that the person is in fact a man, however if he wants that badly to be regarded as a woman I see no reason not to grant that request.
The reason to not regard a man as a woman is that he isn't one. I would be very concerned about allowing false identifications based on how badly someone wants something. Some people are parasites. Should I grant their request to be regarded as non-parasites because they want it very badly?
I would argue that the very purpose of a sex change is to make real the change from one gender to another. In that case, I would be (correctly) regarding a woman as a woman without undermining my own rationality.
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More crucially, there might be a little bit of confusion here by invoking the Law of Identity in the context of gender classification. The Law of Identity is an axiom that applies no matter how "mutiliated" something is. Metaphysically, a mutilated object is still itself.
There might be a question as to what gender concept a specific person belongs to, i.e. what makes a person "male" or "female"? But that goes to the meaning of those concepts, specifically the differentia. The Law of Identity tells us that a person cannot belong to two mutually exclusive concepts, i.e. be a male and a female at the same time. If a third gender concept (e.g. "transgender" or even "nongender") is necessary, it tells us that a person cannot be a male, female, and/or transgender/nongender all at the same time. An objective definition and logical application of such concepts will yield a correct answer in a given case, but the subject then is the validity and application of those concepts, not the Law of Identity.
Furthermore, what one "wants" is irrelevant. I may want to be a dog or a leaf or a stone, without breaking the Law of Identity (though such a desire would be impossible, hence obviously irrational). There's only a contradiction if I accept the premise that I actually am a dog or a leaf or a stone. If a man actually believes that he is a woman when he in fact is not according to those concepts, there is a contradiction. But the real argument, I suspect, is over the meaning of those concepts.
I think I am asking the wrong question. The right one might be "Does sex determine gender?"Precisely.
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I see your point, but I disagree for at least two clear reasons. First, the government is not an agent to lead society. The government is a foundation that preserves fundamentals. Society is led by intellectuals, industrialists, and artists. Government follows.
The reason why that works is my second point. Government agents can appeal to the advice of intellectuals and comprehend it without being highly trained and specialized in a field such as a PhD. Imposing that constraint on potential representatives is unecessarily limiting, and will create an intrisic bias in the legislatures.
In a rational society, we won't need PhD's to lead us in government. They'll be leading us in the places that really matter, and we'll know whom to follow.
On the first point, I didn't say that "government is an agent to lead society". I said (defending against the charge that "there are many more problems coming from those that are educated than those who are not") that the intellectuals in a rational society could be expected to lead it - including its government - in a positive direction.
On the second point, I agree that staffing the Senate with intellectuals is not a primary requirement of political philosophy, and your explication correctly reflects the basic Objectivist position regarding the primary political role of intellectuals (i.e. to advise politicians). AFAIK, however, Objectivism does not say that intellectuals cannot have a formal agency in the government vis-a-vis the popularly elected branch in recognition of their crucial place in guiding the political sphere and the need to check the popular will from time to time.
As far as whether it would create an intrinsic bias, I'm not at all sure what bias you envision -- presumably, a bias towards the intellect would be an unmitigated good. But let's suppose that there is something about the intellectuals that engenders them towards a peculiar kind of error special to them. In such case the concern would be obviated by the check of the popularly elected branch, namely the House of Representatives.
The best argument against this idea might be the possibility of the intellectuals falling into major philosophic error, i.e. a return to today. As I already stated, this proposal would be counterproductive under such conditions. So I will stipulate that it makes sense only insofar as the rationality of the chosen intellectuals is beyond reproach.
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This is a terrible idea. First, you constitutionally institute a certain system of education. It's one thing to deal with a person's age, but educational degrees require educational standards defined by educational institutions.
Second, my observations of politics show that there are many more problems coming from those that are educated than those who are not. Consider this: is a productive person in a given field more likely to work productively in that field after college, or remain in academy buying favors and pandering to popular theories? Who is more likely to have greater virtue - and an understanding of how people actually work and live in the productive sectors of society?
Our current non-PhD Senate was very effective at passing PhD Christina Romer's massively fraudulent and misguided $800 billion stimulus bill.
On the first point, I think that requiring academic credentials is one way to identify the class of citizen that we would call "intellectual". What we really mean are professionals in the humanities. How else could one legally define "intellectual"?
On the second point: I wholeheartedly agree that such a requirement would be grossly counterproductive given the philosophy of today's intellectuals (so much so that I advocate for the existence of popular referenda until the intellectuals are set in a more rational direction). Observations of contemporary politics will simply confirm that point, which I readily concede. In a rational society, however, it will not be the case that "there are many more problems coming from those that are educated than those who are not". To the contrary, the better educated could be expected to lead society in a positive direction.
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I think that the republican principle and the vital role of intellectuals in society should be melded in the composition of the upper house of the legislatures in the United States; that in the modern era, intellectual qualifications include earning a Doctor of Philosophy degree (that just means a Ph.D. in some field, not necessarily in the field of philosophy); that federal senators, at least, should be appointed (i.e. repeal the 17th amendment).
From Article I -
The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.
No person shall be a Senator who shall not have earned a Doctor of Philosophy degree according to law, attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.
No person shall be a member of the senate, if any, of a state legislature who shall not have earned a Doctor of Philosophy degree according to law.
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Appointment by a committee of Objectivist scholars stemming from a lineage (not genetic) of such with its origins from the country's founding. But in an Objectivist country it probably wouldn't matter much.
I am sympathetic to the view that there ought to be an institutional place for intellectuals in the government, say in the composition of the upper house of the legislature (viz, the Senate). This would be somewhat akin to what the framers were shooting for with the expectation that senators would be elevated members of society, corrected for the Objectivist view that it is the intellectuals who occupy so exalted a position (in fact, we already have an example of this in academia, where the faculties are at least nominally in charge of the affairs of the institution, and extending that principle to the society at large doesn't sound altogether bad -- once their philosophical views are informed by Objectivism, of course).
However, such a design would have to be melded with the republican principle given that man's rational faculty entitles him to choose his agents in government. Even if the senatorial qualifications were modified to require some kind of intellectual cred, the choice of senators would ultimately have to devolve upon the people, even if indirectly. Food for thought.
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Thanks for the replies!
The reason I ask is I do not know which form of government is ideal -- aside from it being limited. Is there a point to a democracy in a state where individual rights prioritize above all else? Is a prime minister/president necessary?
I recommend taking a look at these links and related topics in the Ayn Rand Lexicon:
http://aynrandlexicon.com/lexicon/republic.html
http://aynrandlexicon.com/lexicon/democracy.html
http://aynrandlexicon.com/lexicon/represen...government.html
http://aynrandlexicon.com/lexicon/constitution.html
In particular, Rand makes the connection between man's rational faculty and the derivative right to elect his representatives in government. At the same time, unlimited majority rule (democracy) is rejected as a Collectivist doctrine. A constitutionally limited representative republic is the form of government that is ideal for Objectivism.
As far as a prime minister/president, the salient point to be emphasized is that the chief executive, like the government, is limited: he must obey the constitution and laws. He is not a dictator who can exercise executive power according to whim (note that in the U.S., it is Congress, and not the president, that decides when to go to war, which subjects that important decision to reasoned debate). The need for a single chief executive to execute the laws is matched by the constitutional constraints by which he is bound.
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A constitutional republic is probably the form of government best suited to Objectivism, but until Objectivism predominates I think that some complimentary form of direct democracy is necessary.
Sometimes a popular referendum is the only way to check corrupt intellectual and political elites and preserve basic rights, as in Michigan where a ban on racial preferences used in university admissions was approved. The state legislature, the elected Board of Regents, the university faculties, and the U.S. Supreme Court had all failed in their respective roles to protect individual rights, a situation the voters were finally able to correct. This is the best argument in favor of democracy that I can think of. Of course, what works for good could also work for evil, but one should not lose sight of the capacity of democracy to defend individual rights in a society whose elites have gone completely awry.
How was it possible that the people had the right answer when the intellectuals were telling them otherwise? I'm not sure, but I suspect it had to do with the fact that there is more than a residue, not only of good sense among the people, but of belief in the broader abstractions concerning individual equality permeating the culture no matter what the intellectual elites said about affirmative action. The use of racial spoils in university admissions presented inequality of treatment in particularly acute and obvious terms, and people either sensed or could comprehend the contradiction. Of course, it was the majority's sons and daughters who had been adversely affected by the unequal treatment as well. The point is that democracy worked where the constitution and representative form had failed.
When things get bad enough that referenda are needed to protect rights, it's probably useful to step back and worry less about democracy and more about the philosophy that predominates among society's intellectuals. In that view, democracy is a temporary safeguard until such time as the intellectuals are set right and the political institutions of a republic can be better trusted to protect individual rights.
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Political parties are electoral coalitions based on factional interests that exist largely because of government regulation of the economy and other matters. A separation of economy and state, and other proper constitutional limitations on government would deprive parties of their reason for existence.
It is not likely that a two-party system would still exist if Objectivism were the predominant philosophy. Minor disagreements among Objectivists would not sustain an energetic two-party system. There could be fringe statist parties but they would not be serious electoral contenders.
I think that people sense that strong party divisions are not healthy. That's one reason why we see the John McCain types making appeals to bipartisanship. He's right insofar as the best political philosophy has no need of partisanship (and wrong, of course, that this can happen so long as statism prevails).
Political parties were never fundamental to the United States constitution. They arose due to its contradictions. We could live happily without them.
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So, please comment on the idea that a constitutional republic is not inherently legitimate as a guarantor of rights, but is legitimate as the means to guarantee those rights.
The first idea that jumped to my mind is the concept of "objective control" - a written constitution enables objective control by putting the purpose and means of government in plain view for reasoned judgment. Similarly, though not quite as persuasively on the face of it, republicanism facilitates objective control by permitting the rational evaluation of the actions of those in office, and their removal for malfeasance (I say not as persuasive because objective control doesn't obviously require that the electors consist of or be drawn from the public, though hereditary selection is clearly out of the question).
A practical case might be made that, similar to how free markets optimize prices by relying on the judgments of many rather than a few, republicanism effects the greatest wisdom in choosing public officeholders by relying on the judgments of many as opposed to the few. Although, the U.S. framers provided for (and republicanism allows) indirect election by select electors and intermediaries on the grounds that the public as such isn't well enough informed to make such a judgment directly. The progression to greater enfranchisement of people and more direct election is a historical fact, but then, so is statism ... I need to chew on that one a bit more, but suffice to say that on the subject of optimizing the choice of officeholders to conform to objective principles of governance, republicanism is at least open to question.
Another angle, however, is the concept of delegation to use force in self-defense. This might be a principled argument in favor of republicanism isasmuch as closing people out of the process entirely would completely deny that concept's validity and undercut the government's legitimacy. If delegation isn't accomplished by letting the people choose government officials directly or indirectly, I can't see how there is even the remotest form of delegation occurring. Majority selection is valid only as the best of imperfect options given that allowing a single individual to wield a veto over the election would simply not be practical. Part of the value of a written constitution is that it allows for the practical necessities of governance by placing such imperfect means in plain view for rational debate and judgment.
A final thought is that objective government must be relatively stable over the long term. To the extent that closing the public out of the process of selecting officeholders would foment revolution, I think that's a good reason to embrace republicanism as a practical necessity of objective government.
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Do you suppose their next move is to sue a teenager for copying his CDs to his MP3 player? Do you have any doubt that the case would never make it to trial?
It depends. Some MP3 players, like the Creative Zen Nano Plus have the ability to record directly from a CD player through a line-in connector, and such copying (if "noncommercial") would apparently be protected under § 1008 while copying using a personal computer would not be.
Anyway, § 1008 does not limit the exclusive right granted by § 106, so you still don't have the right to copy without permission. At most, you could get away with violating someone's rights without getting sued for it. That's not exactly a ringing moral endorsement.
Health Care Bill Passes Senate
in Political Philosophy
Posted
Here are a couple more links on the subject of constitutionality. Now that the Senate bill will be signed into law, we'll be hearing a lot more about this in the days to come.
"Individual Mandate" at Core of ObamaCare is Unconstitutional, New Report Concludes (March 1, 2010)
FreedomWorks to House of Representatives: Individual Mandate Unconstitutional (Feb 4, 2010)