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February 18, 2005

Comments

Gromit:
Yes, "limited" rather than "liberal" would fir my meaning just as well, if not better. Thanks.

Do you think that it was or would have been right during the Cpld War to jail people, or fire school teachers and college professors and low-level government bureaucrats, for belonging to the Communist party, or for being suspected of belonging to the Communist party, or for refusing to testify before the House Un-American Activities Committee & name other suspected members of the Communist party, or for refusing on First Amendment grounds to take a loyalty oath?

Probably the opposite is the case now. I'd venture to guess that more teachers, college professors, government beaureaucrats. and journalists are fired or never offered jobs because they have conservative beliefs. For instance in Illinois where Gov Blagoyavich (sp?) has to cut jobs, a lot of those jobs are cut first in downstate and collar counties that tend to be Republican - Case in point Volo Bog state natural area. That's ok. What's not ok is drumming Larry Summers out of his job. But that's another topic.

Would it be better to get rid of Bird Dog, or bring harley on to harrass him all the time? Hi harley wherever you are.

(I am actually looking at changes on a little microprocessor thingy, so I am in the midst of some CPLD wars myself. If I pick on little mistakes too much, I am not concious of it.)

Dave -- I don't think that your Illinois example quite proves the point you're trying to make. Assuming arguendo that the facts are as described (since I know relatively little about Illinois state politics), wouldn't that more be a case of a politician trying to keep the pain of unpopular belt-tightening away from his supporters? That's subtly different from laying people off because of their conservative beliefs.

More generally, I don't think Katherine by her comment meant to get into a who-is-oppressed-worse debate -- the comment about Communists, AFAICT, is relevant as an example of historical proscriptions of people holding minority beliefs.

Charles, did you read any of the rest of the paragraph you quote?

Yes, I did, Gromit. Proscribe also means "denounce or condemn". That is the context of what I understood his sentence to mean.

I think though that, dictionary definitions aside, that the most commonly understood connotations of proscribe are related to prohibition rather than denunciation (cf. proscription).

Luckily, Cella is available around the corner and good about specifying his meaning on request.

Of course, when an author uses a particular word and intends a meaning other than the most commonly understood connotation, it's generally incumbent upon him or her to do so right up front, don't ya think?

Again, Charles, do you agree with this or not?

Fortunately, the United States never has been, is not, and (please God) will never become an Open Society. We have always been willing to proscribe certain opinions, to place a high enough price on holding certain views that most people simply give them up; we have, in short, always been willing to offer to subversives the choice that Athens gave to Socrates: silence, exile, or death.

That George Soros is trying to overturn this American tradition does not speak well of him.

It seems like he himself defines proscribe as "to place a high enough price on holding certain views that most people simply give them up." And as far as what the high price is, "silence, exile or death" seems pretty unambiguous to me, especially when combined with the Socrates reference. I guess you could interpret exile to include prison as well as denaturalization/deportation, but interpreting it as "social ostracism" seems like so much of a stretch that it's not even plausible.

"Of course, when an author uses a particular word and intends a meaning other than the most commonly understood connotation, it's generally incumbent upon him or her to do so right up front, don't ya think?"

No. Esp. since "common meaning" so often depends on who the common is.

Straight answers please. Do you agree or disagree with this?

I agree with it, Katherine, but not in the manner that you interpret it. Again, Paul was talking mostly in social and broadly political spheres.

I am talking about cases where there are no serious allegations of violence, espionage, direct incitement to violence, or conspiracy or complicity in any of these crimes.

We don't disagree, although I would add that those who are or were in purposeful contact with Soviet operatives or al Qaeda members may be subject to prosecution. Again, in Paul's words, "The legal measures have tended to come into play when the faction in question is perceived to constitute a pressing threat to the security of the nation." Those who were victimized by the McCarthy witchhunts were not part of that "pressing threat" to national security. Nor were most or all of those Japanese who were interred during WWII. Nor are those who practice Wahhabism or Qtubism but have no deliberate contact with known terrorist organizations.

Or do you merely object to indirect incitement to violence when it threatens you?

I have no idea what you're talking about.

should people accused of these things receive the normal procedural protections before they are sent to jail, or will those be suspended too?

Do you really have to ask?

If you don't propose sending them to jail but you do propose firing them--again, what sort of chance do they get to prove they are not subversive? Or is the burden on the government to prove that they are?

Too hypothetical. Note that when I wrote about Ward Churchill, I did not say that he should be fired for his aberrant views, but because he defrauded the university, claiming Indian ancestry that he could not prove, and because of shoddy and misleading scholarship.

Whether we're talking jail or loss of employment, where exactly would you draw the line?

Too vague and hypothetical. It would take too much time and too many words to draw lines on situations that may or may not happen.

Do they have to endorse violence personally?

Endorse? No. Incite? Yes. In 1995, Lynne Stewart said to the NY Times, "I don't believe in anarchistic violence, but in directed violence. That would be violence directed at the institutions which perpetuate capitalism, racism, and sexism, and at the people who are the appointed guardians of those institutions, and accompanied by popular support." She was endorsing violence, and she was rightfully not jailed for it. But had she said those same words to a group of bomb-carrying anarchists on the eve of a WTO conference, that may be another issue.

just as your expression of your desire to see the United States cease to be an open society doesn't actually make it so.

You're mischaracterizing me. The United States is already the most open society on earth, and I have no desire to "cease" that. Paul's point was that Soros was attempting to overturn an already existing American tradition with his OSI concept which, as Paul pointed out, has to do with the abdication of assigning any value to questions and opinions raised. As I wrote at 1:58pm, Paul may have misinterpreted the OSI mission if Jerry's cite is accurate (which I can't confirm).

Bird: That is the context of what I understood his sentence to mean.

From where did you get that understanding, when Paul Cella specifies in the very same sentence that he doesn't mean "denounce or condemn": he means the choice the Athenians gave Socrates, of legally-enforced "silence, exile, or death"?

Bird: Soros was attempting to overturn an already existing American tradition with his OSI concept

Are you asserting, then, that America has a tradition of offering people who hold "certain views", "silence, exile, or death"? And that this is a tradition which ought not to be overturned?

Would you care to suggest some examples of how this American tradition has been carried out?

Okay. I think we are in agreement on many basic principles. I also think you are interpreting Cella's comments very differently from the way almost all of the rest of us understood them. Again, "silence, exile or death" for "subversives" as a "proud American tradition" seems completely unambiguous to me. So does "to place a high enough price on holding certain views that most people simply give them up"--losing friends would presumably not be a high enough price; this would have to mean loss of employment at an absolute minimum and would probably mean imprisonment. As for this:

The legal measures have tended to come into play when the faction in question is perceived to constitute a pressing threat to the security of the nation. Thus, we socially ostracize neo-Nazis, because there is little reason to fear that they might actually take a shot at violently overthrowing the country. But we went farther with Communists because they were (rightly, in my view) perceived as an immediate threat; and we go further with radical Muslims, for obvious reasons.

suggests to me that when a FACTION, as opposed to an individual, becomes a real threat, we criminalize speech as well as violence. That's what we've been talking about for the whole thread. I'm not sure anyone here thinks violence, espionage, treason, direct incitement to violence, or conspiracy to commit violence or espionage, or being an accomplice in any of the above, should not be illegal, and I'm not sure anyone of us thinks it's wrong to refuse to sit next to neo-Nazis at dinner parties, and I don't see how either of those things would make this not an open society. Cella is arguing something else.

Note also these statements from Cella's post:

"the Open Society cannot silence any opinion, no matter how heinous....It cannot say to the Communist: "we will not protect your freedom to advocate the overthrow of our society." It cannot say to the Nazi: "you will keep silent about your views or face various legal disabilities."

And, while he listed political and social sanctions, he also said "legal" and he included it for a reason.

It seems crystal clear to me that he is in favor of jailing people for speech that the Supreme Court has agreed for forty odd years that the First Amendment protects.

You may honestly disagree, you may even be right (though I really doubt it, and even if he claims that you are right I might not be convinced--as I said, it seems completely unambiguous to me), but that is how 95% of us including hilzoy interpreted his words.

Would you care to suggest some examples of how this American tradition has been carried out?

And moreover, even assuming that this is in fact an American tradition, is it really one we want to continue? History abounds with examples of traditions and majority beliefs that we have long since renounced and been a better people for it.

To put it more briefly: I think there is confusion between two propositions

1) Certain beliefs should not be "open questions", meaning that they are so unacceptable that it ought to be illegal to express them.
2) Certain beliefs should not be "open questions," meaning that they are so unacceptable that it is morally wrong to express them & I would have a hard time being politicallty or socially associated with someone who did.

I agree with #2. I strongly disagree with #1.
I'm pretty sure that:
a) George Soros agrees with #2, and strongly disagrees with #1.
b) You agree with #2, and disagree with #1.
c) hilzoy agrees with #, and strongly disagrees with #1.
d) Paul Cella agrees with both #1 and #2.

And to make it really complicated:
for many of us, #1 is one of the beliefs that should not be "open questions" as defined in #2.

Yep. I strongly disagree with #1, and agree with #2. With the caveat (in the case of #2) that i sometimes try to talk to people who hold beliefs that I find repellent, on the grounds that I don't know how they're ever going to change their minds if no one who disagrees with them ever tells them why, but in some cases I have found it impossible to go on associating with them, for reasons related to their beliefs, but that aren't exactly just my saying, I cannot go on associating with someone who holds these beliefs!

I interpreted Cella as accepting not just 2 but also 1, for the reasons I gave (and that other people have expressed.)

The Open Society Institute explains what an open society is here:

"An open society is a society based on the recognition that nobody has a monopoly on the truth, that different people have different views and interests, and that there is a need for institutions to protect the rights of all people to allow them to live together in peace. Broadly speaking, an open society is characterized by a reliance on the rule of law, the existence of a democratically elected government, a diverse and vigorous civil society, and respect for minorities and minority opinions.

The term "open society" was popularized by the philosopher Karl Popper in his 1945 book Open Society and Its Enemies. Popper's work deeply influenced George Soros, the founder of the Open Society Institute, and it is upon the concept of an open society that Soros bases his philanthropic activity."

Popper was a philosopher of scientist who held, basically, that in science the best we can hope for in a theory is not that it should be verified, but that it should never be falsified; and that the process of experiments is basically a rigorous way of subjecting hypotheses to as many different sorts of occasions on which they might be falsified as possible. The relation to political theory is basically: progress is made by testing your beliefs against challenges, by opening them up to criticism and the opportunity for disproof. Open societies are set up to allow this to happen; closed societies insulate their core beliefs from these sorts of challenges, thereby 'protecting' themselves from exactly the sorts of things that allow us to make progress.

Katherine, thanks for the clear statement - I happen to be a bit scared of Cella a la bob mcmanus and clarity helps settle the matter.

Though actually where do you think he stands in your division re atheists? "Against" regarding public office, but surely not "against" in sense 1) - but the former already makes me uncomfortable.

rilkefan, I may be misremembering, but ISTR Cella going so far as to say he didn't think atheists should have the right to vote, let alone hold office. Again, my own mind may be just making that up, and I'm too lazy to search the ObWi archives.

Phil, I don't see that in the archives. On the other hand I spent a while this morning fruitlessly trying to find a link from hilzoy to a site where one can enter an image and change its sex, ethnicity, painting style, etc.

Phil, I don't see that in the archives (or in google - maybe I should try to check the office-holding point as well). On the other hand I spent a while this morning fruitlessly trying to find a link from hilzoy to a site where one can enter an image and change its sex, ethnicity, painting style, etc.

bird dog wants to equate calls by commentators for his removal from front page posting privileges with a rejection of what an Open Society means, therefore implying hypocrisy. Cute rhetorical move, and maybe BD believes it to be true. But it ain't. BD suggests that Soros is an outsider bent on destroying the system, which seems to be an attenuated version of RW talking points.
but I hope it is a rather weak attempt to deflect rather than a revelation of true practices. However, the question arises because BD's citations often seem not to show how he came to his view, but merely to provide post facto justification of what he writes.

With the 'power' of frontpage posting comes responsibility. BD seems to think that he was given a license to reproduce his Redstate and Tacitus posts at ObWi. This would relate to what assurance von and Ed gave to BD, but in some of his discussion here on what he feels his role is here, that doesn't seem to be the case.

I called for BD to be asked to leave as a front page commentator not as a knee jerk reaction to what he wrote (I first suggested ignoring it), but because of his inability (which continues even now) to acknowledge fundamental observations that approach the realm of facts and make appropriate notice in the front page post. It's no one's responsibility but his, and if he can't live up to it, he should be asked to leave. His shifting this to a tortured reading of Cella's post in order to defend his position is, as one might say, Clintonesque.

Phil, I have a vague recollection of Paul Cella saying something like that - atheists being unfit to hold public office - so it's not just you making it up. But I can't remember anything else about the discussion, and searching on Google (the easiest way of searching Obsidian Wings) only found a comment Cella made in May 2004 about Muslims, in which he repeats his favorite quote about Athens; "In short, Socrates' choice: submission, exile or death."

It's very odd: I don't think I ever encountered anyone before who thought that the trial and execution of Socrates was the best that Athens had to offer. ;-)

rilkefan
here you go.

lj - ta.

Jes, not to mock anyone's death, but from what I've read of Plato, S's main talent was out-sophisting the Sophists; the Athenians were just inadvertantly advancing the cause of knowledge aka Aristotle.

Let me just add myself to the list of those who strongly disagree with Katherine's proposition #1 and strongly agree with #2, and to those who interpreted Cella's post as approving legal sanctions for expressing certain beliefs.

That he did so is absolutely clear from the passage BD quoted in the post, and from Cella's subsequent comments, where he suggested, among other things, that Congress and the state legislatures should have the power to determine acceptable expression.

"the trial and execution of Socrates was the best that Athens had to offer"

Then a close reading of Friedrich Nietzsche might do you some good :) And perhaps some Thucydides and Xenophon in order to acquaint yourself with the external conditions and recent history of Athens. Like, it got destroyed not long after. Never to return to its previous heights.

....
that Congress and the state legislatures should have the power to determine acceptable expression. ...Bernard

I don't know what Cella believes, but this weekend I have been considering a hypothetical that has attraction for some on the right, involving the weakening of the judicial branch:

1)Marbury vs Madison a bad decision;2) Congress has at least an equal right to Constitutional interpretation, and the right to limit jurisdictionn, 3) "Incorporation" (13th,14th,15th) an unsupportable and generally bad thing

Been doing thought-experiments on what such an America might look like, rather than recoiling in reflex horror, actually trying to make it work in a "some things lost, some things gained" kinda way.

The left is far too comfortable in having the courts protect us. SCOTUS has no army.

bob, are you the editor of the NY Post?

Bob, I think you could build a (more or less) decent society on a foundation that did not include a written Constitution and strong judicial review--see, e.g., England today. But I think we in the United States have built a (more or less) decent society on precisely those foundations, and I don't want us to go kicking away the foundations now.

I also think the Constitution is fundamentally illegitimate without the 13th, 14th, 15th and 19th amendments, so I want them interpreted broadly.

It is precisely because the Supreme Court has no army that I am okay with a broad power of judicial review. "The least dangerous branch", "neither the purse nor the sword", yadda yadda. The public doesn't like it when Congress, and especially the President, refuses to abide by a Supreme Court decision. That wasn't always true but it's true now. We haven't had a "Justice Marshall has made his decision, now let him enforce it" moment in some time. Lincoln did without a penalty, Roosevelt had one he got away with and one he didn't, Nixon really didn't get away with disobeying the courts, and Bush--who doesn't lack chutzpah-- hasn't yet tried openly defying the Supreme Court. Gore didn't even consider it in Bush v. Gore, and to a lot of liberals they've largely redeemed themselves for that decision with Hamdi and Rasul.

Whereas Congress has totally abdicated when it comes to protecting people's rights. Maybe that's partly because of strong judicial review, but that doesn't mean it's going to end if we take away strong judicial review. Tom DeLay and Dennis Hastert and Bill Frist are Tom DeLay and Dennis Hastert and Bill Frist. And for God's sake, the House isn't really democratically elected anymore. We've gone down this road; I think it's too late to go back, and even if it's not, now is about the last time in the world you'd want to risk it.

For reference, I'm linking to the key Warren Court decision on when political speech can be banned as incitement, . This is the key line:

the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

People have their issues with the Warren Court, but this decision has been widely accepted by the left and right alike. Charles, I think, was trying to get at precisely this distinction in one of his responses to my questions:

Endorse? No. Incite? Yes. In 1995, Lynne Stewart said to the NY Times, "I don't believe in anarchistic violence, but in directed violence. That would be violence directed at the institutions which perpetuate capitalism, racism, and sexism, and at the people who are the appointed guardians of those institutions, and accompanied by popular support." She was endorsing violence, and she was rightfully not jailed for it. But had she said those same words to a group of bomb-carrying anarchists on the eve of a WTO conference, that may be another issue.

I read that and thought, "yeah, the Brandenburg test", which is what led me to believe that there was a fundamental misunderstanding more than a fundamental disagreement.

I kind of want to quote from noted subversive I.F. Stone's book, The Trial of Socrates, but I'll restrain myself for now.

gah. The decision's name is Brandenburg v. Ohio. The link still works though it's obviously screwily formatted. And preview is my friend.

"Incorporation" (13th,14th,15th) an unsupportable and generally bad thing

"Generally bad," you say? So it would be OK for the State of Alabama, for example, to declare evangelical Christianity the state religion, impose disabilities on those who do not adhere to it, etc. And while they are it they might outlaw criticism of the law establishing the state religion.

Thought experiments? Right. How do they come out, Bob?

I am no lawyer or expert on the Constitution, but it seems absolutely clear that if the guarantees in the First Amendment are to have any force whatsoever then incorporation is a necessity. One could almost say (I would say) that incorporation is implicit in the Bill of Rights from the beginning, since otherwise it is useless.

I am no lawyer or expert on the Constitution, but it seems absolutely clear that if the guarantees in the First Amendment are to have any force whatsoever then incorporation is a necessity.

That only follows if you think the only mechanism of force is the (federal) Congress and the (federal) executive branch. All the removal of incorporation would mean -- and it's a pretty big "all" -- is that the making and enforcing of such prohibitions would devolve to the individual states. It would make things... well... different.

[I, for one, would likely get the f*** out of Dodge but it's not clear to me that such a change would inevitably result in the devolution of the United States.]

Anarch,

I'm not sure what you are getting at. Is it that we then would have to rely on the individual states to protect religious freedom, say? And that if a particular state chooses not to protect it, then too bad for its residents?

In effect this means the First Amendment is not a guarantee of individual liberty at all. It is just a statement that various restrictions will be left to the states.

"In effect this means the First Amendment is not a guarantee of individual liberty at all."

Well, it is what we fought a civil war about, whether the Const guaranteed individual liberty or state freedom from federal interference.

Look these are not my views. I don't mind the last 100 years of SCOTUS decision.

But it is not an inconceivable nightmare that Utah be a Mormon State, Illinois Catholic, New York Jewish. Nor does it seem to be a necessary federal guarantee that everyone has the right to live anywhere, without any difference in local laws and conditions. I don't believe religious freedom was strongly enforced during our first century, nor do I remember many horror stories.

bob: Then a close reading of Friedrich Nietzsche might do you some good :)

Tried it. Gave me a headache.

And perhaps some Thucydides and Xenophon in order to acquaint yourself with the external conditions and recent history of Athens. Like, it got destroyed not long after. Never to return to its previous heights.

Read Xenophon, though it was years and years ago. Never Thucydides, though I'm more-or-less familar with the events he describes.

Still, Cella's repeated championing of the trial and death of Socrates as an admirable example of how to solve the problem of what to do with a troublemaker who has committed no actual crime, is unique in my experience.

Thucydides is absolutely glorious, though I am not sure how it would help Paul Cella rescue his bizarre reading of the Apology, crito, et al. Likewise, I have read Nietzsche, at various distances, and I'm not sure how he advances the argument either. (Although this may be because Nietzsche, for me, falls in the category of "people my attitude towards whom absolutely disproves the idea that you have to agree with someone to think he is really, truly great." My reading of Nietzsche is also heterodox at times. I think that if he came back to life and read some of his commentators, he'd think seriously about killing himself again, and only his belief in affirming life no matter what would stop him.)

I truly can't imagine reading the relevant Platonic dialogues and concluding that Athens is the example you want to emulate.

"Thucydides is absolutely glorious"

The Melian Dialogue is something - not sure I'd call it glorious though.

I cannot possibly answer all the objections that have been brought against me, but perhaps I can help to clarify our disagreement here with a few remarks.

(1) The Open Society ideal was formulated by J. S. Mill and brought into American politics by early 20th century liberals. It is, I contend, an alien system, with no roots here. Philosophically, my critique of Open Society liberalism is that it is incoherent. It declares that, because "no one has a monopoly on truth," all questions must remain open questions. But this proposition cannot stand, even on its own merits; for one question is not open -- one question is emphatically closed -- and that is the question of whether, in fact, all questions are open. Open Society liberalism appears to rest on a certain reticence about truth -- but it is very aggressive in pronouncing one truth: that truth cannot be arrived at by men.

Another way to put is to say that all societies must have orthodoxies, public truths to which the community has committed itself. There is no way around this. Open Society liberalism elevates freedom of thought or speech as the highest public truth. Its orthodoxy is anti-orthodoxy. Its truth is the denial of public truth.

Again, this is an alien system to a polity which began its life with the words, "We hold these truths."

(2) My interpretation of Athens and Socrates comes mainly from the Crito, and I never said that Socrates "approved" of the Athenian Assembly's decision. What I said was that he did not begrudge them their decision. He was not, in short, an Open Society liberal. He believed that, as Mr. McManus so elegantly phrased it, "a community that cannot exclude is not a free community." (ObWi, I think it's worth noting, is not an Open Society. If it were, there could be no bans.)

(3) Without getting into specifics, I was never talking about run-of-the-mill political discourse. I agree wholeheartedly that the American tradition has usually reposed on the "let 'em speak" side. We have always been inclined to give men their fair opportunity to make their case, to have their say. But what we have not done -- what we have hardly even contemplated doing -- is imposing the rigid code of the Open Society upon ourselves. We have not made that strange philosophy of anti-orthodoxy our orthodoxy. We have always reserved the right to say, if we must, "that will be enough."

(4) As a matter of political philosophy, I am indeed a (small "r") republican. The question of when free speech can no longer be extended to a certain faction is one that must be decided by the people's representatives sitting in legislative assemblies. I make no apologies for this.

(5) Hilzoy writes, The people who founded this country took a different view. They had the odd idea that citizens should be trusted to make up their own minds who their leaders should be.

Yes. And they also were influenced by the equally odd idea that the people should be trusted to determine the character of their society -- even unto excluding those who are antithetical to it.

I have been accused repeatedly of a lack of faith in the strength of this country. I submit to you that there is a striking lack of faith among my opponents, who seem to believe that if they concede to We the People this power to, off at the end, silence speech we find sufficient dangerous or repugnant, then a marching tyranny of the oppression will descend upon us. Many commenters seems so frightened by the idea of a republican (again, small "r") self-government extending into the realm of political expression, that one cannot but suspect that they fear their own countrymen.

"Well, it is what we fought a civil war about, whether the Const guaranteed individual liberty or state freedom from federal interference."

And my side won, damn it, and changed the Constitution accordingly. I don't think the First Amendment applied to the states before the civil war, but I sure as hell think it does now. The privileges and immunities clause works more neatly than the due process clause, but there are good arguments for both. Anyway, religion ought to be treated as a suspect class under the equal protection clause even if you do away with incorporation doctrine.

Not even Clarence Thomas wants to do away with incorporation entirely, though he and Scalia would overturn Gideon v. Wainright (right to counsel) if they could and he would not incorporate the establishment clause because he doesn't think it protects individual rights. Janice Rogers Brown apparently agrees with Cella, but even if she makes the Supreme Court she's one of nine.

A more likely scenario is that Congress uses a lot of jurisdiction stripping statutes. The Constitution would still bind the states, but instead of one Supreme Court ruling on how it binds the states you'd have 50 state supreme courts doing it.

New York wouldn't be a Jewish state; even New York City is only 1/5 or 1/6 Jewish these days. The suburbs are probably noticeably more so, but upstate is way less.

But I wouldn't expect true horror stories based on establishment of religion. I'd expect a bunch of students who don't learn about evolution properly & to have to learn the Lord's prayer but that may already be true. It presents a problem if you want to raise your kid Jewish and knowing his biology, of course, and I'd be even more concerned if I were Muslim, but the things that would have my bag packed and ready to move to Massachusetts at a moment's notice would be gay rights, access to birth control including emergency contraception, and the criminal justice and mental health and prison systems going from awful to nightmarish. Restrictions on political speech could also be a problem but that, I find harder to predict. If it's a jurisdiction-stripping situation you could also end up with the state courts gutting the legal protections of racial minorities; again, I find this harder to predict.

Intersting note: the high population states, which tend to be the liberal states, are systematically underreprsented in the federal government except for the courts. Most obviously in the Senate and the amendment process, but also in the House (since every state gets at least one representative and they refuse to increase the size of the house--not to mention the redistricting meshugas) and the electoral college (underrepresentation in the house + underrepresentation in the senate + gross underrepresentation of both very liberal and very conservative states.) Texas gets screwed too but it's not much consolation.

I suppose this should make me more pro-federalist but in reality, it's totally possible for us to be screwed over on the big issues, and the more important states are as a political unit and the greater the geographical differences, the more unfair these differences start to seem. Our tax burden will remain disproportionately high; our services disproportionately underfunded; our cities remain at the greatest risk of terrorist attacks because of an incompetent foreign policy; our air polluted by the dinosaur coal plants in the Ohio valley that have been running for decades....sure, now we can violate the bill of rights but we never wanted to do that anyway. Whoop di doo. And of course the push for a marriage amendment will continue unabated, and the Bush administration will still argue that federal statutes pre-empt New York and California's environmental laws.

If you end incorporation or strip the federal courts of jurisdiction, there is a real possibility that you get a pretty decent sized migration from the conservative states to the liberal states and a smaller migration in the opposite direction. This increases state polarization, which makes the underrepresentation of the liberal states feel that much worse. If you think we're bitter now....

Paul Cella: Thanks for your reply. I am curious about this bit: "It declares that, because "no one has a monopoly on truth," all questions must remain open questions. But this proposition cannot stand, even on its own merits; for one question is not open -- one question is emphatically closed -- and that is the question of whether, in fact, all questions are open. Open Society liberalism appears to rest on a certain reticence about truth -- but it is very aggressive in pronouncing one truth: that truth cannot be arrived at by men."

First, what do you mean by a question 'remaining open'? If you mean: that it is taken to have no answer, or that all answers should be seen as equally good, then I don't see any reason to think that an open society, or a liberal society in Mill's sense, has to presuppose this at all. Mill certainly did not think this -- he had quite definite views about all sorts of things, and one of the reasons he favored freedom of thought and expression was that he thought that the best way for people to figure out the truth about how to live was to allow them to carry out what he called 'experiments in living'. This idea would make no sense on the assumption that one view is as good as another.

That you do read it this way is suggested by your statement that the open society rests on a 'reticence' about truth. As I'm sure you know, lots of liberal theorists have explicitly denied this. Mill is one; John Rawls is another. (Rawls relies instead on the idea that for certain important questions about religion, morals, and so forth, the truth may be knowable, but it is not sufficiently obvious that we can expect all reasonable people to agree on the answers to these questions. This being the case, he argues that we could produce consensus on these questions, if at all, only by the use of coercive state power. But that's completely different from saying that there are no right answers, or that they are not knowable.) For what it's worth, I am a third. If you do mean that an 'open society' must rely on the idea that the truth is unknowable, it would be interesting to hear why.

If, on the other hand, when you say that a question is 'open' you mean that it should be legal to advance different answers to it, then that's what Soros seems to have in mind. But then it's not clear why you say that in an Open Society the question whether all questions are open is itself closed: an Open Society can perfectly well exist even if it's legal to say that it should be closed, and to advance different arguments for and against that claim. In fact, our own society would seem to be living proof that an open society need not criminalize dissent.

Possibly you mean a third thing: that there must be a strong social consensus in support of an open society if it is to endure. This is true; but (again) what the consensus need to support is freedom of expression, not the idea that any claim is as good as any other. That being the case, I don't see that there can't be a strong social consensus in favor of freedom of expression: e.g., a lot of people who firmly believe that expression should be free. Nor does this require making dissent from this claim illegal; again, this country stands as an example that one can have a strong consensus without making dissent illegal.

I'm inclined, therefore, to read your view as equivocating on this term: you say that an open society has to treat at least one question as closed ( = as having an answer), and take this to imply that a completely open society ( = one in which all views can be voiced) is impossible. But I'm probably just missing something; in which case just let me know what it is.

Is it that we then would have to rely on the individual states to protect religious freedom, say? And that if a particular state chooses not to protect it, then too bad for its residents?

Well, yes. I agree with Katherine, more or less, that that changed in the postbellum era, but prior to that I'd say that's exactly right. The fault lies not with the Constitution but with our overly-pat summation of, say, the First Amendment as "protecting freedom of the press". It didn't. It protected the freedom of the press from Congress but left open the question of whether the various states could choose to abridge it.

On which note, does anyone know of any major cases in which the states did choose to abridge, say, the First Amendment?

Mr. Cella,

As Hilzoy said, you misinterpret Mill -- he did not say that all questions were or could be open, but that we cannot be assured enough that our personal opinion is the true one to justify legal prohibitions against those opinions with which we disagree. The two are very different, and your discussion of Mill elides that difference.

Further, I'm interested to hear how your point (5) is consonant with the First Amendment. 2) You argue that worries about tyranny and oppression of dissent and minorities in a non-Open Society implies a striking lack of faith in one's countrymen. I would say rather that it suggests that we have read Madison's Fed. 10 on the dangers of faction (and persons of factious temperament gaining political power) and Tocqueville on the dangers of tyranny of the majority.

When you ascribe the idea of an Open Society to Mill and his 20th Century followers, you do a great disservice to Tocqueville, who was very clearly concerned in Democracy in America with the _dangers_ of tyranny of majority opinion, and the extent to which that _problem_ could and did exist in American life. While I can't say as I agree with everything in Tocqueville, the issues and concerns he raises are certainly still relevant to contemporary American life.

Paul Cella--

You don't understand at all what liberals think.

I don't say there is no truth or right; I am convinced there is. I don't say that man cannot discover what is true or right; I am convinced he can, though he does so haltingly and rarely. I am arguing that what is true and right cannot be resolved by taking a vote about it and letting the ayes have it. I am arguing that the government absolutely cannot be trusted to discover what is true and right, and imprison people for speaking or thinking what is false and wrong--even what is most false and most wrong. If you give it this power, it will misuse it. It always has and always will.

And Thomas Jefferson agreed with me about this:

"The error seems not sufficiently eradicated, that the operations of the mind, as well as the acts of the body, are subject to the coercion of the laws. But our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg. If it be said, his testimony in a court of justice cannot be relied on, reject it then, and be the stigma on him. Constraint may make him worse by making him a hypocrite, but it will never make him a truer man. It may fix him obstinately in his errors, but will not cure them. Reason and free enquiry are the only effectual agents against error. Give a loose to them, they will support the true religion, by bringing every false one to their tribunal, to the test of their investigation. They are the natural enemies of error, and of error only. Had not the Roman government permitted free enquiry, Christianity could never have been introduced. Had not free enquiry been indulged, at the aera of the reformation, the corruptions of Christianity could not have been purged away. If it be restrained now, the present corruptions will be protected, and new ones encouraged. Was the government to prescribe to us our medicine and diet, our bodies would be in such keeping as our souls are now. Thus in France the emetic was once forbidden as a medicine, and the potatoe as an article of food. Government is just as infallible too when it fixes systems in physics. Galileo was sent to the inquisition for affirming that the earth was a sphere: the government had declared it to be as flat as a trencher, and Galileo was obliged to abjure his error. This error however at length prevailed, the earth became a globe, and Descartes declared it was whirled round its axis by a vortex. The government in which he lived was wise enough to see that this was no question of civil jurisdiction, or we should all have been involved by authority in vortices. In fact, the vortices have been exploded, and the Newtonian principle of gravitation is now more firmly established, on the basis of reason, than it would be were the government to step in, and to make it an article of necessary faith. Reason and experiment have been indulged, and error has fled before them. It is error alone which needs the support of government. Truth can stand by itself. Subject opinion to coercion: whom will you make your inquisitors? Fallible men; men governed by bad passions, by private as well as public reasons. And why subject it to coercion? To produce uniformity. But is uniformity of opinion desireable? No more than of face and stature. Introduce the bed of Procrustes then, and as there is danger that the large men may beat the small, make us all of a size, by lopping the former and stretching the latter. Difference of opinion is advantageous in religion. The several sects perform the office of a Censor morum over each other. Is uniformity attainable? Millions of innocent men, women, and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned; yet we have not advanced one inch towards uniformity. What has been the effect of coercion? To make one half the world fools, and the other half hypocrites. To support roguery and error all over the earth."

As did James Madison:
"I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no state shall violate the equal right of conscience,
freedom of the press, or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights. I know in some of the state constitutions the power of the government is controuled by such a declaration, but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the state governments are as liable to attack these invaluable privileges as the general government is, and therefore ought to be as cautiously guarded against."
(Speech on Amendments to the Constitution, 1789. He lost that vote at the time, but he was right, and after his death he got his way through the 14th amendment)

"Because finally, "the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience" is held by the same tenure with all our other rights.

If we recur to its origin, it is equally the gift of nature; if we weigh its importance, it cannot be less dear to us; if we consult the "Declaration of those rights which pertain to the good people of Virginia, as the basis and foundation of Government," it is enumerated with equal solemnity, or rather studied emphasis.

Either then, we must say, that the Will of the Legislature is the only measure of their authority; and that in the plenitude of this authority, they may sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred:

Either we must say, that they may control the freedom of the press, may abolish the Trial by Jury, may swallow up the Executive and Judiciary Powers of the State; nay that they may despoil us of our very right of suffrage, and erect themselves into an independent and hereditary Assembly or, we must say, that they have no authority to enact into the law the Bill under consideration."
--Memorial and Remonstrance

Madison also wrote the Virginia Resolution in opposition to the Sedition Act.

(All of this is particularly true when you've got an incompetent press and a system of elections that:
1) allows House members to choose their voters instead of voters choosing their House members
2) systematically underrepresents the large population states in the House, and the Senate, and the electoral college, and the Constitutional amendment process
3) does not give any vote at all to the people who have been imprisoned (disproportionately racial minorities) or can be deported. There's a very good argument for denying the franchise to non-citizens and a not-so-good argument for denying it to felons, but the fact remains that elections will do absolutely nothing to protect those groups.
4) is so heavily influenced by money from the richest and most powerful people and corporations.

But it would be true regardless; that's just the icing on the cake.)

Anarch--sure.

Alabama's 1833 Slavery Code:

"Any person who shall attempt to teach any free person of color, or slave, to spell, read or write, shall, upon conviction thereof by indictment, be fined in a sum not less than two hundred fifty dollars, nor more than five hundred dollars."

"If any slave or free person of color shall preach to, exhort, or harangue any slave or slaves, or free persons of color, unless in the presence of five respectable slave-holders, any such slave or free person of color so offending, shall, on conviction before any justice of the peace, receive, by order of said justice of the peace, thirty-nine lashes for the first offence, and fifty lashes for every offence thereafter"

I assume that there were similar laws in most of the slave states. It was also pretty common for abolitionist literature to be banned, and the justification for this was often that it would incite slaves to violence.

(The other approach of course was to just burn down the newspapers. See Elijah Lovejoy. William Garrison also almost got killed one time, and was imprisoned for libel another time.)

Paul Cella: My interpretation of Athens and Socrates comes mainly from the Crito, and I never said that Socrates "approved" of the Athenian Assembly's decision.

Yes, you did. (To be precise, you said he thought it was a good idea.)

"We have, in short, always been willing to offer to subversives the choice that Athens gave to Socrates: silence, exile, or death."

Excuse me, I have a question. Do we think this is a good idea?

Yes. A very good idea. Socrates agreed.

Posted by: Paul Cella | February 17, 2005 01:38 PMcite

I pointed out statements made by Socrates that contradict your assertion in both the Apologia and the Crito in the thread I've linked to.

What I said was that he did not begrudge them their decision.

He protested it at length, and eloquently, in the Apologia, and he explicitly said that it was an evil act in the Crito. I have quoted the relevant passages in that other thread.

If you give it this power, it will misuse it. It always has and always will.

Did Abe misuse this power, just for starters?


an Open Society can perfectly well exist even if it's legal to say that it should be closed

Nice! My own response would have been something to the effect that it's a self-pruning decision tree: choosing "no" as an answer to the question of whether, in fact, all questions are open pretty much ends the entire inquiry. Intelligent people will anticipate this and never take that path. So it's not precisely as if that question isn't open, it's that it's obvious that it's a dead end. One might as well choose death in response to the question is life worth living?, just as an experiment.

Open Society liberalism appears to rest on a certain reticence about truth

Liberalism? The insistence on keeping an open mind about things is liberalism? Hopefully I can count myself as a liberal in your estimation*, at least in that sense. The point of keeping questions open is not the shedding of any values whatever, but rather to keep society from calcifying. Imagine if we'd closed off lines of inquiry previously thought to have been resolved. Where would we be now?

*It's probably not necessary for me to note that I've never EVER typed a sentence remotely like this.

Did Abe misuse this power, just for starters?

Liberal Japonicus said it best: "Timmy, you may feel that rhetorical questions are gently pointing things out (along the lines of 'could you pass the salt?') but I think I speak for a number of people when I say that they make it appear that you don't want to actually put any flesh on your thoughts and therefore are trying to avoid taking positions you have to defend. I'm sure that's not the case, so perhaps you might want to avoid rhetorical questions if you don't want to give that impression."

Several points in response to Paul. First, I don't agree with his point #4. For me, the 1st Amendment and resultant case law set the proper boundaries for free speech. I get nervous when legislatures infringe on those boundaries. Tyranny of the majority and all that. Second, because of this, I'm having second thoughts on the Athenian Way that he referenced. This is a sufficient enough difference to cause me to update my earlier post.

I do agree that the Open Society FAQ is contradictory. It is more than a little strange that they claim there is no monopoly on truth, and then in the next sentence they proclaim their own truth.

It's belated, but thank you hilzoy for your crafting of an honorable dissent.

they proclaim their own truth

By saying 'Open societies are characterized...', they are not 'proclaiming their own truth', but identifying the points where the OSI is going to support countries that don't have such features or such features need strengthening. If they said that an open society is X, they would be doing what you suggest, but they are not doing that.

About the Soros FAQ: they say that "An open society is a society based on the recognition that nobody has a monopoly on the truth, that different people have different views and interests, and that there is a need for institutions to protect the rights of all people to allow them to live together in peace."

That nobody has a monopoly on the truth is consistent with the claims: (a) that there are truths, (b) that they take this to be one of those truths.

I mean: I don't think that I have a monopoly on the truth. I also think that any number of my beliefs might be wrong, and that it behooves me to keep an open mind. How does this conflict with my having beliefs, even beliefs I feel strongly about?

"Timmy, you may feel that rhetorical questions are gently pointing things out (along the lines of 'could you pass the salt?') but I think I speak for a number of people when I say that they make it appear that you don't want to actually put any flesh on your thoughts and therefore are trying to avoid taking positions you have to defend.

Actually it wasn't a rhetorical question. Katherine makes an absolute statement which I question by raising a historical fact. That is, was Abe out of bounds with his actions. I expect an answer. Maybe Jes you would care to try.

As Von pointed out, we materially changed the Constitution (13th, 14th and 15th Amendment) while excluding a material portion of US citizens while doing so.

These are relevant historical points to the overall discussion. Our current construct of a constitutional republic isn't an open contract, it places many responsibilities on its citizens and with responsibilites come constraints (the difference between liberty and license). I continue to lay out historical examples which apparently many here, including you Jes, struggle with but so far none have been refuted. You many not like the analysis Jes, but it is relevant to the overall discussion. Accordingly, I will continue to use them. Jes, so much for your "open society" or do you struggle with those things that you have no understanding of.

Timmy, as has already been said to you, if you want to make a point, why not make it, instead of asking rhetorical questions?

Katherine makes an absolute statement which I question by raising a historical fact.

No, you didn't. Asking "Did Abe misuse this power, just for starters?" is not "raising a fact": it's asking a rhetorical question. If you have some illustration to make from US history about misuse of power that you feel is an appropriate response to Katherine's comment, why don't you just say what you mean, instead of asking a rhetorical question and then getting miffed?

Hmmm...and all this time I had thought a rhetorical question is that which one doesn't want to have answered.

And for those of you keeping score at home, the TtWD RQS (Rhetorical Question Scoreboard) has just gone to double digits! How many more until he asks what the GDP of China is? Place your bets!

Hmmm...and all this time I had thought a rhetorical question is that which one doesn't want to have answered

Why would you think that??

Not that it isn't fun to watch Timmy and Jesurgislac go at it over historical issues of abuses-of-power, but just to get the ground rules straight: Timmy, could you please, for once, clarify a point on one of those "rhetorical questions" you so often plant on comment threads? To wit:

"Did Abe misuse this power, just for starters?""

Is this question just a simple yes-or-no case, like:
1. Does Katherine (or whoever) think Abraham Lincoln misused his Presidential powers during the Civil War?

Or is there some more complex question meant here, like:
2. Do "you" think Abraham Lincoln misused his powers, but should still be admired as a great President?
3. Do "you" think Abraham Lincoln misused his powers and should be vilified for it?
4. Do "you" think Lincoln's use/misuse of powers is a relevant example to our discussion?

Or is there some other point you are trying to make?


Definition: "The rhetorical question is usually defined as any question asked for a purpose other than to obtain the information the question asks. For example, "Why are you so stupid?" is likely to be a statement regarding one's opinion of the person addressed rather than a genuine request to know. Similarly, when someone responds to a tragic event by saying, "Why me, God?!" it is more likely to be an accusation or an expression of feeling than a realistic request for information."

When TtWD posts questions like 'What is China's GDP?', it strikes us as rhetorical since (usually) China's GDP has not figured in the conversation. So we assume that he's basically saying: if you knew the answer to this, you would abandon or modify the point you've been making in some way. We just wish he'd make his criticism directly, since then we don't have to spend time figuring out what he's getting at.

Oh, and Charles: you're welcome.

Slarti: Hmmm...and all this time I had thought a rhetorical question is that which one doesn't want to have answered.

What's a rhetorical question? Answer

Example:

A rhetorical question is a figure of speech in the form of a question posed for rhetorical effect rather than for the purpose of getting an answer.

Generally, a rhetorical question seeks to encourage reflection within the listener as to what the answer to the question (at least, the answer implied by the questioner) must be. When a speaker declaims, "How much longer must our people endure this injustice?" or "Will our company grow or shrink?", no formal answer is expected.

It's certainly my impression that when Timmy asks questions, it's not because he wants his questions answered. If I'm wrong, and Timmy knows not the answers to any of the questions he's posed so far on this thread, well, clearly whoever said Timmy knew his US history was wrong.

Katherine you can be remarkable and compelling.

Does anyone want me to make that pesky blockquote

go away?

I'm not seeing anything that leads me to believe that Timmy didn't want an answer, Jesurgislac. Would it be faster for Timmy to just come out and say what's on his mind? To me, unquestionably. Then again, I think it'd have been much quicker for you to have simply answered the question rather than making style critiques.

Slarti: I'm not seeing anything that leads me to believe that Timmy didn't want an answer, Jesurgislac.

Well, if you think so. So it's your impression that Timmy is ignorant of, and seeking information on, the following questions:

Why a Constitutional Republic?
Why the indirect election of both the President and the members of the Senate?
The founders decided to include certain property as three fifths of a citizen. Why?
The very end of the "Bill of Rights" includes the Tenth Amendment. Why?
Certain of the founders enacted the Alien and Sedition Act(s). Why again?
Was the United States of America an "Open Society" at its founding?
Did Abe misuse this power, just for starters?

So, can you recommend a historical website or a simple textbook that Timmy could read and discover the answers to these questions?

Will this blockquote never

go?

Slarti -- I didn't mention TtWD's rhetorical question thingo until after I had, several times, gone to the trouble of finding estimates for China's GDP, none of which prevented him from asking about it again and again. I'd also add that answering some of the questions Jes cites, like "why a constitutional republic?', would take a while, if done right. It's a lot of trouble to go to if he doesn't actually want to know.

I think you might consider that the information he seeks is not the answer to the question so much as how well you answer it. This seems obvious to me, but that could just be the common VRWC heritage between Timmy and I.

I think you might consider that the information he seeks is not the answer to the question so much as how well you answer it.

Um. How does suggesting that Timmy likes to make people jump through hoops before he'll engage with them make his behavior any more palatable?

Well, yes, but then I ask myself: why does TtWD assume that it's OK for him to be endlessly setting the rest of us these little tests that require (sometimes significant) effort on our part, rather than assuming that we are reasonable and making his point?

Slarti: I think you might consider that the information he seeks is not the answer to the question so much as how well you answer it.

But (if you're right in your guess as to why he asks) why should anyone care what Timmy thinks about how well we answer his questions?

As Hilzoy pointed out above, she went to the trouble of finding an estimate for the GDP of China several times, which Timmy never seemed to be interested in or to comment on.

In any case, Timmy seems to think that he's "laying out historical examples" - and he persistently ignores the point that he is not actually laying them out: he is asking rhetorical questions. (Or, if you're right, setting tests for a class that he seems to believe we are all enrolled in.)

Now that we're all agreed that the questions aren't rhetorical, my work here is done.

Sorry I abused the notion of a rhetorical question. Perhaps a better name would be a phatic question, but phatic is something like 'don't you love this weather' that is set forth to establish, rather than undermine a mood of sociability.

And FWIW, I believe that asking questions not because you wanted to find out the answer but because you wanted the person to prove how well they knew what you talking about is disrupting the conversation for its own sake and therefore prohibited by the posting rules. Plus it reminds me of the SATs.

As to the Lincoln and the First Amendment specifically (as opposed to the more generally known suspension of habeas corpus--which is related but not the exact same thing): I've read reports that he censored telegraphs and newspapers and it sounds like he did abuse that power. But I cannot find any account of this that is both detailed, and reasonably neutral--it's either vague or it's from sites about "the REAL Abraham Lincoln" and "Abraham Lincoln's Culture of Death." If you would like a detailed response please provide me with more details.

It does not really surprise me all that much when good Presidents or good countries or good people do bad things. I have said repeatedly here that FDR, who I think was the best president of the 20th century, committed two sins--one of omission and one of comission--that are worse than anything George W. Bush has done wrong. Bobby Kennedy, another one of my heroes, worked for Joe McCarthy near the beginning of his career. Madison and Jefferson were terrible hypocrites about slavery. Harry Truman, who I think did a truly amazing job in the early days of the cold war, I also think made a horrible mistake that killed hundreds of thousands of innocent people in bombing Nagasaki. I could go on like this. In the cases of Lincoln, Roosevelt, RFK, Truman, Madison, Jefferson, I think they gave things to this country and the world that ended up mattering more than the things they did wrong. In the cases of Andrew Jackson, Woodrow Wilson, and George W. Bush, I don't think so.

If we're talking specifically about civil liberties in wartime, I'll note that Lincoln is also partly responsible for the Lieber Code, the precursor to the Geneva Conventions--which the Union adopted though the Confederacy did not.

Slarti: Now that we're all agreed that the questions aren't rhetorical, my work here is done.

Who says we're agreed? I still think Timmy is asking rhetorical questions, since he doesn't seem to want answers, or to be interested in them when he gets them. You've argued that he's setting tests for the rest of us: the only person who can really answer this question is Timmy. ;-)

But it is not an inconceivable nightmare that Utah be a Mormon State, Illinois Catholic, New York Jewish.

That's a bit glib, Bob. Don't centuries of history that tell us that what happens when religious groups have the power of government at their disposal can easily be a nightmare?

Nor does it seem to be a necessary federal guarantee that everyone has the right to live anywhere, without any difference in local laws and conditions. I don't believe religious freedom was strongly enforced during our first century, nor do I remember many horror stories.

Depends on your definition of "horror stories." Some states had religious requirements for holding office, for example. It is also relevant that the country was overwhelmingly Protestant during its first century, so even things that would be regarded as highly objectionable today might have met with little objection. The immigrations that brought Catholics and Jews in large numbers occurred after the Civil War. And of course, adherents of other religions were not present in significant numbers until even more recent times.

No horror stories? Oh, I don't know:

From the Wikipedia entry on Joseph Smith, the founder of the Mormon Church:

The early Church grew rapidly, but there was often conflict between members of the new church and various disbelieving neighbors. These conflicts were sometimes violent: On the evening of March 24, 1832 in Hiram, Ohio, a group of men beat and tarred and feathered Smith and his counselor Sidney Rigdon. They threatened Smith with castration and with death, and one of his teeth was chipped when they attempted to force him to drink poison. The mob action led to the exposure and eventual death of Smith's adopted newborn twins. Sidney Rigdon suffered a severe concussion after being dragged on the ground. According to some accounts, Rigdon was delirious for several days, threatening most of those who were near him, including the life of his wife and Smith. The reasons for this attack are uncertain, but likely were tied to a sermon given by Rigdon....

[Smith and his followers fled to Missouri.]

Soon the "old Missourians" and new settlers were engaged in a conflict sometimes referred to as the 1838 Mormon War in Missouri. One of the key skirmishes in the conflict was the Battle of Crooked River, which involved Missouri state troops and a Mormon group. There is some debate as to whether the Mormons knew their opponents were government officials, but the battle's aftermath was pivotal in Church history. One popular Mormon Apostle, David W. Patten, was killed in the skirmish.

This battle led to reports of a "Mormon insurrection". Due to these reports and the political influence of pro-slavery politicians, Missouri Governor Lilburn Boggs issued an executive order known as the "Extermination Order" on 27 October 1838. The order stated that the Mormon community was in "open and avowed defiance of the laws, and of having made war upon the people of this State ... the Mormons must be treated as enemies, and must be exterminated or driven from the State if necessary for the public peace—their outrages are beyond all description."....

Soon after this "Extermination Order" was issued, vigilantes attacked an outlying Mormon settlement and killed 17 Mormons in what is known as the Haun's Mill Massacre. Soon afterward, the 2,500 troops from the state militia converged on the Mormon headquarters at Far West. Smith and several other Church leaders surrendered to state authorities on treason charges. Although they were civilians, the militia leader threatened to try Smith and others in a military tribunal and have them immediately executed. Were it not for the actions of General Alexander William Doniphan in defence of due process and Smith, the plans of the militia leaders likely would have been carried out.

The legality of Boggs' order was debated in the legislature, but most of the Mormon community in Missouri either left or were forced out by the spring of 1839.

Instead of facing execution, Smith and three others spent several months in Liberty Jail awaiting a trial that never came. With shaky legal grounds for imprisonment, authorities eventually allowed and encouraged them to escape. They joined the rest of the Church in Illinois....

[where they founded a small city called Navuoo that was more or less theocratic city-state, complete with its own militia. Smith got into trouble with Illinois authorities when he tried to violently suppress opposition newspapers.]

Joseph [Smith] soon submitted to arrest. Illinois Governor Ford proposed a trial in Carthage, the county seat, and guaranteed Smith's safety. Smith agreed and stayed in the Carthage Jail, under the Governor's promised protection....The unsympathetic "Carthage Greys", a local militia, were assigned to stay at the jail and protect Smith, who under the custody of the jailor, was given a room adjoining the jail cells on the second floor. Smith was joined there with his brother, Hyrum, Dr. Willard Richards, and John Taylor....

Before a trial could be held, a mob of about 200 armed men (some painted as Indians) stormed Carthage Jail in the late afternoon of June 27, 1844....The Carthage Greys reportedly feigned defense of the jail by firing shots or blanks over the heads of the attackers, and some of the Greys reportedly joined the mob, who rushed up the stairs to Smith and his associates.

The mob fired shots through the door and attempted to push the door open to fire into the room. Smith attempted to defend himself and his associates with a small pistol that Cyrus Wheelock gave to Smith when he came to visit him at the jail, possibly shooting three men.

Ultimately, Hyrum Smith was shot four times and killed. John Taylor was shot in his hip and severely injured, but survived the attack with Richards' aid. Joseph Smith was also hit several times as he made his way towards the window.

There are varying accounts of what happened next. Some claim Smith was dead when he landed after his fall; other accounts suggest Smith was alive when mob members propped his body against a nearby well and shot him many more times before they fled. Another account claims one man tried to decapitate Smith for a bounty, and died in the act; there were reports that loud thunder and lightning frightened the mob off. Mob members fled, shouting, "The Mormons are coming," although there was no Latter Day Saint force in the vicinity....

From the general Wiki entry on the history of the LDS Church:

Church leaders planned to leave Nauvoo, Illinois in April of 1846, but amid threats from the state militia, they were forced to cross the Mississippi River in the cold of February. They eventually left the boundaries of the United States to what is now Utah where they founded Salt Lake City.

From a PBS bio of Brigham Young:

1851, Utah was organized as a territory, and Young appointed its governor and superintendant of Indian Affairs. But as it had in the past, Mormon success raised suspicions and provoked opposition from those outside the faith. Federal officials began to fear that Utah would become a theocracy in which church and state were indistinguishable. And with the announcement in 1852 that plural marriage, or polygamy, was a basic tenet of the church, there began a public outcry that accused Mormons of immorality and of thinking they could live outside the laws of the land. By 1857, these complaints had become so persistent that President James Buchanan, eager to find some way to distract attention from the issue of slavery, finally sent an army into Utah to suppress what the Mormon's critics considered a full-scale rebellion against federal authority.

Buchanan's so-called "Mormon War," however, would be a war in name only, because Brigham Young chose to fight the government by cutting off its troops' supply lines rather than engage them in battle. The conflict did, however, give rise to an incident which still haunts Young's reputation, the September 1857 Mountain Meadows Massacre, in which a party of 120 emigrants, suspected of hostility toward the church, was murdered in southeastern Utah by Paiute Indians and a band of Mormons led by John D. Lee, who claimed to be acting on orders from Young himself. [N.B. from Katherine: other reports say that he had sent out a message that would've prevented the massacre, but it didn't get there in time.] Despite this atrocity, by 1858 Brigham Young had reached a reconciliation with the federal government...

Is that horrible enough? (Certainly it's more than long enough--sorry.)

Perhaps Bob does not remember horror stories because Bob is not a Catholic, a Mormon, or a Jew?

Gotta love that fair-n'-balanced majoritarian view of the world. Nothing bad happened to MY folks, so nothing bad really happened.

Now to be fair, the Jews and the Catholics had troubles as much because of their ethnic divergence from the norm as because of religion. See, e.g., the Leo Frank lynching, or the interminable Catholic-Protestant street-gang wars in NY, Pittsburgh, Boston, et al. So let's just talk Mormons--completely mainstream ethnic Americans, led by, believe it or not, a guy name of Joe Smith. Can't hardly get more whitebread than that. Good old Joe was shot by a lynch mob after being jailed on trumped-up charges. His people fled, abandoning property they had lawfully settled and built up, to avoid more of the same.

Nope, no horror stories here, move along, nothin' to see.

I see Katherine anticipated my point, sorry for the redundancy.

The question of when free speech can no longer be extended to a certain faction is one that must be decided by the people's representatives sitting in legislative assemblies. I make no apologies for this.

Many commenters seems so frightened by the idea of a republican (again, small "r") self-government extending into the realm of political expression, that one cannot but suspect that they fear their own countrymen.

By this argument anyone who favors any restriction on legislative power "fears their countrymen."

And of course, I do fear my countrymen, in the sense that I fear they will elect people to office who will abuse their power. I suspect that you have the same fear. Certainly the Founders did. Hence there are restrictions on what legislatures can do. These are not absolute - the Constitution can be amended - but they are very difficult to overturn, and rightly so.

I think the first paragraph I quote largely refutes Charles' defense of your views: that you were speaking primarily of social sanctions, not legal ones. And though it describes your views, that does not mean, as you seem to claim, that it describes American tradition.

(1) I do not think I am misinterpreting Mill. In his On Liberty he wrote ". . . there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered." This is not some throwaway line: he dedicates an entire chapter to defending this proposition. I merely do Mill the honor of believing he meant what he said. (And let me also note here that Mill, unlike his later followers, had no illusions about the radical nature of his project.)

(2) It may be that the phrase "Open Society" has obscured more than it has clarified. I am perfectly willing to part with it if necessary. But the point is that when a society has elevated freedom of thought and speech to the level of its highest good, freedom of thought and speech ceases to be merely freedom of thought and speech, but becomes that society's highest standard of order. It becomes its orthodoxy. It is this philosophy that I object to. It is this philosophy that I regard as quite alien to our political tradition. Hilzoy writes, I don't think that I have a monopoly on the truth. But you do: on the issue of free speech, you think it is simply true that the good society is the society which gives free reign to all political discussion, "however immoral it may be considered."

(3) I find the contention that the Founders were Millian liberals in their views of free speech verging on preposterous. How is it, I wonder, that the same Congress, in the same generation, that passed the Bill of Rights also passed the despised Alien and Sedition Acts? Some will reply, of course, that this was an unfortunate lapse, but if the Founders really were Millian liberals, it was more than a mere lapse -- it was apostasy; it was a betrayal of their deepest commitment. And yes the Alien and Sedition Acts provoked widespread outrage, but this outrage, for the most part, was based not on free speech grounds, but on the question of state vs. federal authority. Indeed, the doctrine of Nullification -- that a state might simply refuse to abide by some egregious federal law -- was first formulated in reaction to the Alien and Sedition Acts. In short, the whole debate surrounding these acts dealt not with questions of political expression, but with the ever-vexing issue of state vs. federal power.*

(4) On the question of my small "r" republicanism, allow me to clarify. I do indeed admire and cherish the various checks on majoritarianism that the Framers included in the Constitution. I believe they were, for the most part, wise to do so. And I think that Tocqueville's nightmare vision of "regulated, mild, peaceful servitude," which might arise with the decay of democracy, is a profound insight. It is positively prescient in describing the bureaucratization of American life. But in the end, this is a republic, and if we wish to remain so, then we must allow the big decisions -- those touching on who we are as a people, our character and destiny as a nation -- to be answered by the people's representatives.

(5) Let me just say this here as well: I am impressed with the civility and thoughtfulness of the discussion of this difficult topic. The community here at ObWi, in this debate, honors its liberal heritage.
_______
* So as to not be coy, I will say something about the merits of these infamous laws. I myself do not see much to despise in the Alien and Sedition Acts. They do not strike me as particularly horrifying. They are, in fact, significantly less restrictive than, say, most campus speech codes of today: they retain the absolute defense of truth, trial by a jury of one's peers, and they were marked to expire -- which they ultimately did. So no: I do not see them as some stain upon our history. But then again, I am not a Millian liberal.

For the record, I was raised weak Catholic, never confirmed, with some Methodist influence and a lot of Amish relatives. It was a majority Catholic community, but not ethnic in any noticable way. My Catholic marrying my Methodist mother was the norm, or at least not unusual. OTOH, I remember 1 Jew, 3 blacks, and 1 Muslim in my first twenty years. :)

I knew of the Mormons, and yes, it is certainly an example of violent religious persecution. That most of us have heard of it possibly marks how unusual it was. The period was one of religious revival, religious and social experimentation, and there were many unusual communities around the country. Amish, Mennonite,Quaker,Oneida. Yet the Mormons are the only example I can think of. Maybe I am just ignorant.

Again, "monopoly on truth" to me means: "only I (or this group I belong to) know the truth about everything", not "I am utterly convinced that this specific statement is true."

"I find the contention that the Founders were Millian liberals in their views of free speech verging on preposterous. How is it, I wonder, that the same Congress, in the same generation, that passed the Bill of Rights also passed the despised Alien and Sedition Acts? Some will reply, of course, that this was an unfortunate lapse, but if the Founders really were Millian liberals, it was more than a mere lapse -- it was apostasy; it was a betrayal of their deepest commitment"

1) The founders disagreed. I quoted Jefferson and Madison, who had nothing at all to do with passing the Alien and Sedition Acts, and who went into exquisite and eloquent hysterics about it. "The reign of witches" and all that. I think of Patrick Henry and Sam Adams as being big on free speech and the bill of rights. I'm less certain about Hamilton and Adams.

2) Of course it's possible for them to betray their deepest commitments. Half of them owned slaves, and they denied the vote the a majority of Americans.

3) It was not actually the same Congress, it's three or four Congresses later. The Congress that passed the 15th Amendment in 1869 was not the same Congress that negotiated the end of Reconstruction as part of the compromise of 1877.

4) A supermajority of Congress voted for the Bill of Rights. The Sedition Act passed 44 to 41.

5) The bill of rights was also ratified by a supermajority of the public. The Alien and Sedition Acts were actively unpopular and contributed to the Federalists' defeat in the 1800 elections. Adams lost the presidency and the Federalists lost 40 seats in Congress (out of 106)--while the Republican Congressman convicted of sedition who campaigned from his jail cell won easily.

6) As to the content of the acts: The Sedition Act applied to opinion as well as to fact, so truth was not a complete defense. There were relatively few prosecutions (25 according to some sources, 17 according to others) and fewer convictions (10ish) but charges were brought for ridiuclous things like this:

"In April 1798, for instance, Bache had referred to the president as "old, querulous, Bald, blind, crippled, Toothless Adams."

"As the procession made its way past a local tavern owned by John Burnet, one of the patrons remarked, "There goes the President and they are firing at his a__." According to the Newark Centinel of Freedom, Baldwin added that, "he did not care if they fired thro' his a__." Burnet overheard the exchange and exclaimed, "That is seditious." Baldwin was arrested and later convicted of speaking "seditious words tending to defame the President and Government of the United States."

"In the summer of 1798, [Congressman Matthew Lyon] wrote an article criticizing President Adams' "continual grasp for power" and his "unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice." During his fall re-election campaign, Lyon also quoted from a letter that suggested Congress should dispatch the president to a "mad house" for his handling of the French crisis. In October, a federal grand jury indicted Lyon for stirring up sedition and bringing "the President and government of the United States into contempt."

You get the idea. It's not many prosecutions, and Jefferson pardoned everyone in the end, but if the law had been popular who knows.

Unlike campus speech codes it involved trial by jury, but violating campus speech codes never ever results in imprisonment and in fact I'm not sure what if any punishments do result. Also, campus speech codes are implemented by private parties and many conservatives would consider restrictions on such things a violation of property and contract rights.

I'm sorry I wrote this quickly to track all of my sources but this link is not a bad start.

I don't feel threatened by people who disagree with me. I feel threatened by people who would like to enforce their disagreement by legal sanctions to shut me up.

I admire hilzoy's post, and her ability to maintain a respectful tone while in sharp disagreement. But my heart is with Katherine's response: Sometimes you have to say "Not only no, but hell, no!"

This is particularly true for Cella's insidious characterization of open society as an "alien" notion. Thankfully, K's citations from Jefferson and Madison very effectively put the lie to that characterization.

But, reassured as I am by the strength of the argumentation here against Cella's points, the context in which Charles B. cited them approvingly creeps me out.

Every day seems to bring a new erosion of principles I'd considered fundamental to our legal system and democracy, and every week the language from the right grows more scapegoating and eliminationist. Charles imports more of that onda onto this blog than anyone else, by far. I'm not joining Liberal Japonicus in his call to revoke front-page posting privileges, but I share his assessment of CB's value to the blog.

Paul Cella: you wrote: "(1) I do not think I am misinterpreting Mill. In his On Liberty he wrote ". . . there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered." This is not some throwaway line: he dedicates an entire chapter to defending this proposition. I merely do Mill the honor of believing he meant what he said."

This would be a good reply had I said that your misreading of Mill consisted of saying that he was in favor of freedom of thought. But this is not what I said. I wrote:

"First, what do you mean by a question 'remaining open'? If you mean: that it is taken to have no answer, or that all answers should be seen as equally good, then I don't see any reason to think that an open society, or a liberal society in Mill's sense, has to presuppose this at all. Mill certainly did not think this -- he had quite definite views about all sorts of things, and one of the reasons he favored freedom of thought and expression was that he thought that the best way for people to figure out the truth about how to live was to allow them to carry out what he called 'experiments in living'. This idea would make no sense on the assumption that one view is as good as another."

And Mark Shawhan, who also said you misread Mill, wrote: "As Hilzoy said, you misinterpret Mill -- he did not say that all questions were or could be open, but that we cannot be assured enough that our personal opinion is the true one to justify legal prohibitions against those opinions with which we disagree. The two are very different, and your discussion of Mill elides that difference."

In both of these quotes, it is quite clear that the supposed misreading of Mill is not (1) taking him to favor freedom of expression -- which of course he did -- but taking him to say that any claim, on any matter, has as much claim to be true as any other. Mill did not hold this; you say he did; and pointing out that you are not guilty of a misinterpretation that no one attributed to you does not change this.

"Did Abe misuse this power, just for starters?"

Katherine makes a statement about government. I question if Katherine truely means it using Abe's tenure as President to frame the question.

Katherine, notes that a "super majority" passed the "Bill of Rights" which includes the 10th Amendment. Whereas, the passage of the 13th, 14th and 15th was obtained while a good portion of the country didn't have a voice. As Von correctly points those three amendments changed the construct of the Bill of Rights without a "super majority". Would those Amendments have passed if the "Radical Repulicans" had operated under the framework of an "Open Society" (probably not). Yet, I would argue that those three Amendments are "liberal" in their construct but they were not passed under the framework of an "Open Society" not even close.

Finally, did Lincoln lie when used the battle cry "Save the Union" when the mandate was expanded as the war moved on. One might ask the same question of FDR using the rhetoric of the "Arsenal of Democracy" given what happened to Eastern Europe.

You see, the proper question raises a whole host of issues if you have any understanding of history.

Finally, the framework of the Constitution was designed to empower the South and that struggle dominated politics until 1860 when a Civil War ensued.


""Did Abe misuse this power, just for starters?"

Katherine makes a statement about government. I question if Katherine truely means it using Abe's tenure as President to frame the question."

The Supreme Court certainly thought so. Ex Parte Milligan, (using military tribunals to try civilians accused of aiding the South held unconstitutional) among other cases.

The Supreme Court certainly thought so

Well after the fact, btw it didn't stop Wilson or FDR from pursuing similar actions JFTR.

The Supreme Court certainly thought so

Well after the fact,

That's what really pisses me off about the Supreme Court, they are always waiting until after something happens before they make up their minds. Why don't they get in front of the curve for a change?

Look at the date of the decision but more importantly what impact did that decision have on Wilson or FDR?

oh, see I assumed you were talking about something directly relevant to what I said about imprisoning and censoring political speech--the specific power I said governments always misuse. My mistake.

TtWD RQW moves up to 13. (the 11th and 12th are hidden in Timmy's 8:09)

what impact did that decision have on Wilson or FDR?

You might want to read Greg Robinson's _By Order of the President: FDR and the Internment_ for some interesting ideas about what led to FDR's decision. Of course, if you think that Presidents are soley driven by the binary choice of 'yes, I agree with that Supreme Court decision/no I don't', I can see why you don't want to defend your positions.

Timmy the Wonder Dog: Katherine, notes that a "super majority" passed the "Bill of Rights" which includes the 10th Amendment. Whereas, the passage of the 13th, 14th and 15th was obtained while a good portion of the country didn't have a voice. As Von correctly points those three amendments changed the construct of the Bill of Rights without a "super majority". Would those Amendments have passed if the "Radical Repulicans" had operated under the framework of an "Open Society" (probably not). Yet, I would argue that those three Amendments are "liberal" in their construct but they were not passed under the framework of an "Open Society" not even close.

Timmy, you seem to have missed this the first time I asked it, so I'll ask again:

Where do the principles of an open society say that the act of rebellion must be tolerated?

Gromit, the rebellion was over when those Amendments were passed JFTR.

So?

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