Submitted to a Candid World

Ames, as a lawyer, you are allowing that other site to make a very weak case for you. Warren asked two questions and McCain answered yes on both (more accountability and merit-based pay) then added a third item himself (getting rid of bad teachers).

If that’s all you have I think we’ve got an acquittal.

The case that he cheated.

I found that whole event to be disturbing. Christianity doesn’t deserve to be put on some pedestal like it’s some how better or more relevant than Islam or Judaism or any religion. As a matter of fact evangelical christianity shouldn’t event be taken seriously at all because those are the same fools who brought the Bush regime to power in the first place.

I was referring mostly to the “our obligation is to define the liberty of all, not to mandate our own moral code” line that you highlighted in another of your posts on the issue. Without some huge caveats, Scalia’s completely right that this principle, applied consistently, destroys the rule of law by undermining the basis of all law.

To go at all in depth into the political philosophy here would take pages and pages of text, but suffice to say that “simple, fundamental axioms of law” don’t really provide a basis for legislation – they provide a basis for the lack of legislation. And it’s worth pointing out that even these ’simple, fundamental axioms’ are pretty arbitrary and even a bit dated on face – why exactly do we not consider psychological harms like offense as infringement in an age when we understand that one’s psychological responses are unwilled and not a product of the virtue of one’s soul? Even Mill’s empirical reasoning is very easy to pick apart. Regardless, Mill’s criterion doesn’t say much about which laws Congress ought to pass – it only says that there are certain kinds of laws that we ought not to pass. “Leave others alone as long as they’re not physically hurting anybody” isn’t really a reason to -do- anything; you want universal health care, a reformed electoral college, gay marriage, and legal abortion, and all of this requires that you will the legislation of your arbitrary personal morals.

I agree with you entirely that our Constitution essentially enshrines Mill’s criterion as the law of the land via the first amendment, and I think one can use that to compellingly argue that the Court came to the right end result on Lawrence, but that just doesn’t look like the way that Kennedy got there. He seems to believe that imposing our morals on society is simply wrong, period, and he compounds his error by taking as given that one can sensibly define ‘liberty’ without already mandating one’s moral code (this is, of course, bunk – for every imaginable ‘right’ and ‘harm’, one can produce another ‘right’ and ‘harm’ that contradict them entirely, and to choose which ‘right’ is to be protected and which ‘harm’ is to be minimized is to bring in external, albeit near-universal, valuations).

Those’re both good points; admittedly, unless some objective form of morality, or positive criterion for state action exists, Kennedy’s opinion DOES destroy the rule of law. I’m going to have to think about that point… I know how it works in practice, and it works well, but it is problematic in theory.