Looking in on the left

I have to admit that I spend less and less time looking ar the left wing blogs and web sites as time goes by. The same goes for the various "paleo-right" blogs, like Lew Rockwell. Virtually all of the these people no longer seem to have anything worthwhile to say about the pressing issues affecting the country and the world. Still, I feel a certain obligation to check in on them every few months, just in case they have come up with an interesting answer to some question, or even some interesting question to be answered.

When I heard that The New Republic, which has the reputation as being a little more moderate and reasonable than other publications across the aisle, had begun a new group blog, I headed on over. The Plank, as its called, seems to be trying to follow the format used at NRO's The Corner, although it's less a comment string than The Corner is. As at The Corner, no commenting is allowed.

The group blog format seems to grow more and more popular. It allows individual bloggers to take a day or two off, of course. It also allows for the many members to support each other, in contrast to the poor solitary blogger who may by turns feel ignored or beleguered. The warm camradarie of our own humble blog is an example of this support system. And a group blog can be a place where opposing ideas are thrashed out in one place, without having to search the web for a different opinion.

So how does The Plank rate? This is from one of the first posts, and is something of a "mission-statement".

The New Republic has done its fair share to invent and reinvent opinion journalism in this country. And we've had our share of success in the blogoshpere. But blogs, like TV shows, can't (or perhaps shouldn't) live forever. So, we're trying to mix up the lineup. You can expect The Plank to satisfy your procrastination jones about six times a day--and a few times more when we can gloat over the jailing of political enemies.

That they mean this seriously is shown in an early post,
How You Can Help Scooter And Karl, in which Franklin Foer pleasures himself with the thought of Libby and/or Rove going to jail. Another post, Scooter On Ice, follows on in the same vein.

Elevating the tone a little, Noam Scheiber surveys the state of journalism and notes the following;

People who work at conservative think tanks or receive conservative foundation money, even people who work at conservative media outlets, risk having the plug pulled if they deviate too far from the party line. All it really takes is a phone call from Karl Rove's office to a wealthy right-wing philanthropist and you could wind up on the street. But when you work at, say, The Washington Post, you know you're going to get that next pay check whether Rove likes your latest column or not.

Of course, this is nonsense. If you work for the Washington Post and Karl Rove likes your work, you will probably not work at the Post very long. Witness all the hard hitting exposes the paper has done on "The Lies of Joeseph Wilson".

Giving us a more useful insight into the thoughts of our sinister friends, Michal Crowley discusses the different tacks being taken on Iraq by the Democratic presidential contenders.

Viewed through a 2008 presidential political lens, that places the two of them [Kerry and Feingold] both on the fomenting left flank of Hillary Clinton, who continues to infuriate anti-war liberals with her stubborn stay-the-course position. As more and more Democrats adopt the Kerry-Feingold slow-withdrawal line, will Hillary be able to hold out? No one knows. But the answer may largely define the 2008 Democratic primaries.

While The New Republic magazine endorsed the Iraqi war, The Plank is strongly opposed to it. Several print magazines have an online presence or blog, but none that I know of have such a fundamental difference in opinion between the two.

So whats the overall verdict on The Plank? It is clear that the left has yet to "move on" and that they are content to recycle old and discredited ideas to each other. That is, I don't see any evidence that ideas are bubbling and fermenting over there. And the general tone is pretty juvenile - a PG rated version of Democratic Underground. On the other hand, it does give a glimpse into the mindset of the people who make up the intellectual/activist base of the Democratic party, which will be useful information as we approach the next elections.

Natural Law in a Democratic Society

Our tranquil blog has been roiled recently by heated discussion of the law, and something called natural law or common law in particular. I'd like to explore why this should be such a contentious topic. What is common law anyway?

It is [t]he system of laws originated and developed in England and based on court decisions, on the doctrines implicit in those decisions, and on customs and usages rather than on codified written laws.


Also, [a] system of law that is derived from judges' decisions (which arise from the judicial branch of government), rather than statutes or constitutions (which are derived from the legislative branch of government).


Common law is based on the organic growth of law over the centuries in England.. It was not created by a legislative body. In fact, in large part, it precedes the existence of legislative bodies, especially the modern ones based on the notion of “one man, one vote”.

Common law assumes that law is properly the provenance of lawyers and judges, and that changes to the common law by legislative bodies are suspect or illegitimate. This is in contrast to statute law, or positive law, which holds that the law is that which is written down in the statute books or constitutions. In many cases the statutes in question were based on the common law. However, the bodies which entered it into the statute books were, for the most part, legislative bodies.

In the natural law or common law tradition, there is a presumption that judges and courts play a significant role in the development of new law, evolving it over time to meet new needs.


This presumption is at odds with the implicit assumptions underlying most democracies, and can be seen in the contradictory ideas expressed in the preamble to the Declaration of Independence.



We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.



The part about all men being “endowed by their Creator with certain unalienable Rights” is clearly an expression of natural or common law. However, the statements that governments derive their just powers from the consent of the governed, and that “the People” have the right to institute new government as necessary in order to establish a state which “ to them shall seem most likely to effect their Safety and Happiness” are a nod to democratic sentiment, and leave open the question of what is to be done if the wishes of “the People” and “the governed” come into conflict with common law.

This tension, between the undemocratic and anti-democratic aspects of common law/natural law, and the presumption that the American government, including its judicial arm, will be “of the people, by the people, and for the people”, is unresolved to this day, and plays out in the confused arguments over the proper role of judges in general and the Supreme Court in particular.

Here is a practical illustration of the question. While discussing the idea of natural rights with natural law proponents, I will ask them if there exists a natural law right to bear arms. They reply in the affirmative. So, if the state passes a law restricting the right to bear arms, it should be struck down? Again, the answer is yes. What about the hypothetical situation where a large majority pf the American people passes a Constitutional Amendment banning all private ownership of weapons? At this point responses get varied, but many answer that the Courts should strike down such an amendment, on the grounds that it violates the “natural law”, even if it is perfectly in accord with the constitution. Others reply that the court should not strike down such a law, but that the action is still morally wrong. From a purist natural law perspective, the constitution is not the source of law, and should be altered, by court ruling if necessary, so as to bring it into closer compliance with “True Law”.

At its base, the concept of natural law assumes that there exists some body of principles which stand outside of the wishes of any people, and even of most people for most of the time. The foundation of this law is located in either tradition, (it’s the law because it has always been that way) or in “sacred texts”, meaning partly the Bible and Torah but including the large and ever growing body of works of social and philosophical theory. In either case, the striking thing about it is that it is undemocratic, even antidemocratic, in nature, as the proper study and understanding of the historical record is presumed to be beyond the ability of most people.


According to natural law theory of law, there is no clean division between the notion of law and the notion of morality. Though there are different versions of natural law theory, all subscribe to the thesis that there are at least some laws that depend for their "authority" not on some pre-existing human convention, but on the logical relationship in which they stand to moral standards.


The state the matter in starker terms, natural law theory assumes that only a small class of people can have knowledge of “The Good”. The similarities of this to the teachings of the medieval church are striking, but not wholly surprising, as Church thinkers from the time of Aquinas were the most energetic proponents of the idea of natural law.

Natural law thinking historically has been a “conservative” force, as the practitioners of law have tended to be drawn from the conservative part of society. In adittion, it depends on the ideas of tradition and precedent, and also presumes the existence of some transcendent "Law" which the judge strives to approximate ever more closely.

There is nothing inherent in the idea of natural law itself which drives it to any particular outcome. As the “elites” from which the ruling classes are drawn have become alienated and disaffected from their society and their fellow citizens, so the law has tended to drift in the directions which they wish. This leads to the rather odd result in some cases of people who loath tradition and the very concept of "moral law" embracing a legal approach based on both of these things.

Natural lends itself fairly easily to being used to attain any ends which judges wish, because it assumes that common law “unwritten law” takes precedence over written law. And also because it allows judges a large degree of discretion in what texts they wish to use to inform their understanding of the law. Justices Kennedy and Ginsburg both consider laws from foreign countries to be suitable material to inform their decision making on the US Supreme Court, for example.

In a great many cases over the past fifty years, the courts in America have relied on common law, in the guise of "substantive due process", to overturn statute laws passed by the elected legislatures (e.g Griswald), as well as laws made directly by the citizens by means of ballot inititaves (e.g Romer).

The Supreme Court has yet to strike down a constitutional amendment as being in violation of natural law, or to announce that the allocation of U.S. senators by state is a violation of the principles of equity and fairness, but the ideas have been broached. Not too very long ago the notion that the courts might discover a natural law right to "gay marriage" would have seemed absurd. Now it seems more likely than not.

The attraction of the idea of common law to many is precisely it's anti-democratic nature. It is felt that this may serve as a valuable guard against the "tyranny of the majority". And clearly, it is an approach which is very appealing to judges. It would seem to me that, regardless of whether or not the curent reading of common law is to your satisfaction or not, the realization that it may well change into something different within your lifetime should be grounds for concern. A court with the power to make society as you may wish it also has the power to remake it into something you would find abhorent.

I find that most discussion about the law, rights, the Ninth Amdenment, privacy, and a host of other issues gets hung up on misunderstanding of the above points. You have two sides arguing from completely different premises, often without being aware of it.

Coolest picture ever?

Saturn's moon Dione poses above the edge-on rings, while Saturn looms in the background.

Islamic Terror In Oklahoma?

The suicide by bomb of Joel Hinrichs, a student at Oklahoma University, has received little mention in the media since it occurred on October 1st. But now the Northeast Intelligence Network is claiming that he was part of an Islamic terrorist cell, and that he was apparently attempting to detonate his bomb inside the football stadium when it went off prematurely.

There are also unconfirmed reports that Hinrichs dorm room was found to contain Islamic literature. This case is now being investigated by the FBI. It would seem that we narrowly escaped a major disaster here, without it getting any serious attention in the press. I've been wondering if and when Al Queda would strike in the US again. Now we have the answer.

Oklahoma was also the scene of the bombing of the Murrah Building. That may be a coincidence, but it seems odd.