Author: dean

New York Times Article on Kagan

“In another case, she recommended that the federal government intervene in a case to support religious freedom. The California Supreme Court ruled that a landlord violated a state law prohibiting housing discrimination by refusing to rent an apartment to an unwed couple because she considered sex outside marriage to be a sin.”http://www.nytimes.com/2010/06/12/us/politics/12kagan.html?pagewanted=2&src=me

Kagan’s position here was incorrect. If the case is as the NY Times article describes it, then this was a law of general application (prohibiting housing discrimination against unmarried couples). Providing exemptions from statutes of general application on “freedom of religion” grounds would lead to the absurdity that people can abuse children or engage in human sacrifice because of their need for “religious freedom”. Warren Jeffs would claim that he has a right to sexually abuse children because of his “religious freedom”. http://en.wikipedia.org/wiki/Warren_Jeffs

The Kite Runner

Thematically, I think this movie was about guilt and atonement. The setting was interesting to me because it portrayed one of the few nations in world history that has been under both collectivism and theocracy -Afghanistan. It shows how the country was utterly destroyed by those two political ideologies. Pay attention to the Afghanistan prior to the Soviet invasion in 1979 and the Afghanistan in 2000, prior to September 11. Although the pre-1979 Afghanistan had its flaws, namely, tribalism and cast-discrimination, it was like a utopia compared to the brutal theocracy of 2000.
http://www.imdb.com/title/tt0419887/

Judge John E. Jones III for US Supreme Court

In between stories about the latest celebrity sex scandal, the news is occasionally noting that Justice John Paul Stevens of the US Supreme Court is going to retire, allowing President Obama to make another appointment. I would like to propose that Judge John E. Jones III, of the Middle District of Pennsylvania be considered for the job. Judge Jones was appointed by President George W. Bush for his present position, and is a Republican. But, Judge Jones was the presiding judge in Kitzmiller v. Dover Area School District Judge Jones ruled that the School Board’s policy on “Intelligent Design”, which is another word for creationism, violated the Establishment Clause. In an interview about his decision, Judge Jones responded this way: “A significant number of Americans, if you poll, believe that creationism ought to be taught, either supplanting evolution or alongside of evolution. And, again, you ask how the judiciary works. We protect against the tyranny of the majority.” Amen.

What is tribalism?

Sometimes when I speak in casual conversation (whether in person or over the Internet), I will use terms that I don’t even realize other people may not understand –or may not understand in the same sense that I use them. I’m typically fairly careful about this, but it does occasionally occur. This recently occurred when I was commenting on an article by Christopher Hitchens called: “Fool’s Gold: How the Olympics and other international competitions breed conflict and bring out the worst in human nature”, which was found in the magazine “Newsweek”, dated Feb 15, 2010. I essentially said that I thought that the article was important because it discusses the ugliness that is often associated with sports, but I stated that I didn’t think this was an inherent feature of sports, but rather a reflection of the “tribal mentality” that sports tends to attract (or, perhaps, that it brings out of otherwise rational people). Someone asked me what I meant by “tribal mentality”, and I told them I’d have to get back to them on it. This is my attempt to explain what I meant.

I knew that I probably picked up the term from an essay by Ayn Rand called: “The Missing Link”. (All references to this essay are from “The Missing Link” in Philosophy: Who Needs It, Ayn Rand (Signet Paperback Ed. ISBN 0-451-13893-7).) “Tribalism” is the term used to describe certain mentalities that choose group-conformity over their commitment to abstract ideals like “justice” and “individual rights”. “Tribalism (which is the best name to give to all the group manifestations of the anti-conceptual mentality)…” (Pg. 42, “The Missing Link”, Rand) My explanation here is meant to provide my (hopefully accurate) understanding of what Rand meant. Proving that she was right is not my primary goal here. I leave it up to the reader to think about what I am saying, and what she said, and decide whether the ideas expressed there are in accordance with reality, which is the ultimate criterion of what ideas are true and which are false.

I first read “The Missing Link” back in college. Since then, I have come to understand Rand’s views on concept formation – the mental steps associated with how we acquire knowledge- much better. (Her views on concept formation are found in _Introduction to Objectivist Epistemology_, for those wanting to study them in depth.) An essential feature to grasp about concept formation is the fact that some concepts are more abstract than others –by which I mean they require greater mental effort to grasp, and they depend on first grasping subsidiary concepts. For instance, the concept “organism” is more abstract than the concepts “dog”, “tree”, “human”, and “bird” –which are all concepts that the concept of “organism” subsumes and includes. The concept “furniture” is more abstract than the concepts “table”, “chair”, “desk”, and “stool” –which the concept of “furniture” subsumes and includes. A concept like “justice” is far more abstract than concepts that represent “perceptual concretes”, such as “human”, “dog”, “tree”, “table” and “chair”. A “perceptual concrete” is something that one can perceive with one’s unaided senses. You can perceive a table, you cannot perceive the atoms that make it up –although the use of scientific experiments and reasoning demonstrate that atoms are real. (I think scientific experiments typically work because the results of the experiment, which you can perceive, allow you to infer that those results must be caused by something you cannot perceive with your senses, and to know something about what that imperceptible thing is.) You can perceive individual men, but you cannot perceive “justice” –although a process of reasoning can relate that highly abstract concept back to things you do perceive in reality. The important thing to keep in mind here is that there are different “levels of abstraction” according to Ayn Rand. Concepts that denote things like “table”, “dog”, and “car” are generally regarded as “first level abstractions”. (As opposed to “higher-level abstractions”, like “justice” and “rights”.)

The “anti-conceptual mentality” “…stops on this level of development –on the first levels of abstractions, which identify perceptual material consisting predominately of physical objects –and does not choose to take the next, crucial, fully volitional step: the higher levels of abstraction from abstractions, which cannot be learned by imitation. (See my book _Introduction to Objectivist Epistemology_.)…In the brain of an anti-conceptual person, the process of integration is largely replaced by a process of association. What his subconscious stores and automatizes is not ideas, but an indiscriminate accumulation of sundry concretes, random facts, and unidentified feelings, piled into unlabeled mental file folders. This works up to a point –i.e., so long as such a person deals with other persons whose folders are stuffed similarly, and thus no search through the entire filing system is ever required.” (Pg. 39, “The Missing Link”, Rand)

In other words, an “anti-conceptual mentality” operates at the level of the first levels of abstractions, but operation at this level of concept formation will not allow him to live and function, so one possible way to deal with this is to adopt the rules, traditions, and ways of other people around him. In other words, an anti-conceptual mentality can deal with his inability to live successfully on the first level of abstractions by simply adopting the customs of his “tribe”. His success at living is then tied to the extent to which his tribe’s rules and customs conform to reality. If his tribal rules conform to reality, then he will be able to use those rules to live. However, since most principles of action tend to operate within certain contexts, the tribal mentality will tend to use rules outside of their proper context. For instance, some tribal groups have certain dietary rules that their members are supposed to obey. Keeping “kosher” might make sense if you don’t understand the germ-theory of disease, but if you use reason and science to understand the underlying causes of food poisoning, the underlying principles of action, then keeping kosher, as a rule, is unnecessary, and is being applied in a modern context where it makes no sense.

Such a tribal mentality will also likely face a certain amount of “mental distress”, “anxiety”, or “emotional uneasiness” when he encounters someone from another “tribe”, who acts in accordance with different customs and rules. To understand why, you must understand that in dealing with the world around us in a manner that allows us to live successfully, there is a certain amount of variation that is possible. For instance, it is necessary to dispose of corpses because they can be a source of disease, and the smell of rotting flesh is one of the worst things you can smell -we’ve probably evolved that way to prevent us from consuming something that could make us very ill. Even though it makes sense to dispose of a corpse, the method of disposal can vary, based on such random factors as geography. So, for instance, members of “Culture A” may dispose of their dead by burying them because there is very little burnable wood around for cremation, while members of “Culture B” may cremate their dead because their soil is very rocky, which makes digging holes very labor-intensive. What happens when a tribal mentality from Culture A encounters members of Culture B, and sees them cremating their dead? A rational person would simply regard this as one possible way to achieve the ultimate goal –corpse disposal. An anti-conceptual tribalist will likely feel a sense of anxiety or unease because he is not very good at mentally abstracting out what is essential and what is not essential. All that is essential in this scenario is that corpses are removed from where people could encounter them, so that they won’t get sick from them –it is not essential that it be achieved in any particular way. But, since the tribal mentality cannot, at least to the extent he is a tribal mentality, determine what is essential, he will respond with “…fear to resentment to stubborn evasion to hostility to panic to malice to hatred.” (Pg. 40, “The Missing Link”, Rand) “If his professed beliefs –i.e., the rules and slogans of his group –are challenged, he feels his consciousness dissolving in fog. Hence, his fear of outsiders…The threat is not existential, but psycho-epistemological: to deal with them [outsiders] requires that he rise above his ‘rules’ to the level of abstract principles. He would die rather than attempt it.” (Pg. 40-41, “The Missing Link”, Rand)

What are some examples of the manifestation of the tribal mentality? “Racism is an obvious manifestation of the anti-conceptual mentality. So is xenophobia –the fear or hatred of foreigners…So is any caste system…So is any kind of ancestor worship or of family ‘solidarity’…So is any criminal gang.” (Pg. 40-41, “The Missing Link”, Rand) This last example would include various ethnic street gangs such as the “Crips” and the “Bloods”. In that case, the anti-conceptual mentalities associated with those criminal groups don’t even use race as a criterion of who is part of their group, since they are made up of members of the same racial group. Instead, their leaders have adopted certain arbitrary manners of dress, especially in certain colors, to differentiate their “tribes”, and then they manifest their hostility towards those that are not part of their tribe by engaging in assault and murder. (Remember the “drive by shooting” phenomena of the 1980’s?) This phenomena isn’t limited to any particular racial group either. The Mafia, associated with a white ethnic group, has “…a rigid set of rules rigidly, efficiently and bloodily enforced, a ‘government’ that undertakes to protect you from ‘outsiders’…” (Pg. 44, “The Missing Link”, Rand)

How do rational people associate according to Rand? On the basis of ideas: “There is a crucial difference between an association and a tribe. Just as a proper society is ruled by laws, not by men, so a proper association is united by ideas, not by men, and its members are loyal to the ideas, not to the group. It is eminently reasonable that men should seek to associate with those who share their convictions and values…All proper associations are formed or joined by individual choice and on conscious, intellectual grounds (philosophical, political, professional, etc.) –not by the physiological or geographical accident of birth, and not on the ground of tradition.” (Pg. 44, “The Missing Link”, Rand)

Now, bringing it back to where I initially started. Why do I think that sports attract a tribal mentality? I believe that sports, specifically team sports, like football, soccer, and basketball attract a tribal mentality because they are typically organized along group lines. One roots for the team of one’s city, one’s school, or one’s nation. To a tribal mentality, who views members of other cities, schools, or nations as “outsiders”, and who is incapable of recognizing his essential similarities and differences from members of other groups, a form of physical confrontation or contest –which sports embody- with members of that other group, is one step from what all tribal mentalities truly want to manifest –physical violence. This is why you get soccer riots in some countries, and this is why you will sometimes see students engage in brawls with members of another school over a football game. All such violence is a physical manifestation of the tribal mentality.

Why I Don’t Recite Any Pledge of Allegiance

I have recently started attending the meetings of a local, Dallas-area political club affiliated with one of the two major parties in the United States. At the beginning of all meetings, this group starts with a recitation of the “U.S. Pledge of Allegiance”. During this period, I stand in order to be polite to the other people there, but I markedly put my hands behind my back, and I do not state the Pledge. Since this would be seen by many as a “subversive” or “unpatriotic” action on my part, and in order to mentally “crystallize” my own thinking on the subject, I thought I would take a moment to explain why I do this.

The first reason I refuse to recite the pledge is because of the use of religious language (“under god”) in its text. Historically speaking, America is not “one nation under god”, which I take to mean a nation founded on Christianity or religion. America is a product of the Enlightenment. In order to understand this, some historical context is necessary. The Dark Ages represented a period of religious domination, and therefore social, economic, scientific, and political stagnation (and human misery). During that period, religious authorities controlled the moral and intellectual realm. The socio-political ream was controlled by the feudal aristocracy, supposedly ordained to rule by god, but in practice, sanctioned to practice tyranny over the minds and bodies of other men by the Church. The Dark Ages ended with the re-discovery of Classical Greek and Roman thought and philosophies, which had emphasized the value of human life in the here-and-now, reality over the supernatural, and the efficacy of the human mind to know reality.

The Enlightenment period of history, which started some time in the 1600’s, represents a naturalistic explanation for the origins of life, via the works of Charles Darwin, a rational explanation for the physical motions of the universe, via the works of Newton, and the beginnings of a secular basis for the political and social order, via the works of John Locke, and others. The founding Fathers of the United States took the ideas of Locke and other Enlightenment thinkers and used them as the intellectual basis for the 13 Republics formed soon after the American Revolution, and for the Federal Republic which today is known as the United States of America. Of paramount importance to the Founding Fathers was the right of individuals to “the pursuit of happiness”, as embodied in the Declaration of Independence.

In order for individuals to pursue their own happiness in society, some implicit understanding of the concept of individual rights is necessary. Individual rights is based in a morality of rational self-interest (or an implicit understanding of such a morality). Each individual must be free to pursue his own rational self-interest (his own happiness) in a social context. (It must be also be kept in mind that “society” is nothing more than a number of individuals, and that the individual lives in society because it maximizes his own self-interest.) Individual rights should be seen as moral principles defining and sanctioning a person’s freedom to pursue his own rational self-interest in a social context. Historically, America is the nation of the Enlightenment, and the nation founded on individual rights. It is not a society founded in a belief in the supernatural, which was the distinguishing feature of the Dark Ages. I therefore oppose the inclusion of the words “under God” in the Pledge because it is not an accurate description of America.

Even if the “under God” language were removed from the Pledge of Allegiance, I would still not want to recite it. I have several objections to its recitation. First, I question the usefulness of any ritualistic recitals such as the Pledge. If the average person reciting the Pledge of Allegiance were asked what some of the key concepts in the pledge, such as “justice” and “liberty” meant, I doubt that he could give you a coherent explanation. There was an episode of the original TV series “Star Trek”, in which the main characters visited an “alternate Earth”, where stone-age men would recite a string of incoherent sounds that sounded strangely familiar, but you couldn’t quite figure out why. At the end of the episode, it is revealed that it is the US Pledge of Allegiance. Not only have the concepts been forgotten, but even the original words have been lost by the primitives reciting them. Every time I hear people reciting the pledge, I think of this episode of “Star Trek”. A “ritual” to me is nothing more than a formulaic endeavor that has no meaning and is meant to discourage thought and individualism, and to engender a tribalistic mindset. I find this utterly incompatible with the meaning and historical significance of America.

Additionally, an analysis of the words of the pledge reveals that it is a useless exercise. America is supposed to be a Republic (or, if you prefer, a “representative democracy”). The express words of the pledge say that you are pledging allegiance to “the flag”, but a flag is just a piece of cloth, and is merely another ritualistic display, so I don’t see any point in engaging in a ritualistic chant (the pledge), to a ritualistic display (the flag). The pledge goes on to say that the flag stands for the Republic, but the purpose of government is to serve as the agent, or servant, of “the people”, in the protection of their rights to life, liberty, and property. Therefore, I, as a citizen, do not owe the government allegiance, the employees of government –our elected officials- owe allegiance to the people that they represent (which would include me). I suppose you could say that you are pledging allegiance to “the people”, but “the people” are nothing more than a number of individuals, each with a right to pursue his or her own happiness, and all individuals are “equal under the law”, so there is no person or group of persons that one should rightly “pledge allegiance” to.

You could say that one is “pledging allegiance” to the concepts of liberty and justice, which are concepts that I fully support. But, I know that I support those concepts, and I actually take action to support them by thinking and writing about them -and by doing whatever small things I can to support liberty and justice in my professional and personal life. So long as I know that I support these concepts, and I take whatever action I am able to take to advance them, why do I need to engage in a ritualistic chant to convince others that I support them? Stating that you support the concepts of liberty and justice, but taking no action to advance them is to elevate form over substance, which is contrary to the spirit of our Nation, as best exemplified by the American expression: “Talk is cheap”.

Movies To See

“The Devil’s Disciple” – This is actually a play by George Bernard Shaw. I saw the version with Patrick Stewart. Set at the beginning of the American Revolution. My impression of it’s theme is something like: What a rational man will do for love. I base this on the assumption that the reason Dick Dudgeon did what he did was because he loved Judith Anderson, as well as Reverend Anderson. (Otherwise, his action would be totally erratic.) But, you can watch it and decide for yourself.

”Compulsion” – Based on a notorious murder in the 1920’s. In real life, Clarence Darrow represented the two well-born, intelligent teenagers that committed the crime. An interesting look at how certain relationships can become so bizarre and out of touch with reality that they end in murder. FYI- I completely disagree with the express message given by the Clarence Darrow character in his closing arguments and after the trial. He claims that if the two young men hadn’t been from wealthy families, they would have merely been given life in prison, like any other person under 21 in the state, but this, coupled with their obvious intelligence, is precisely why they should have been given the death penalty. The pair almost outwitted the authorities, and their intelligence and wealth would mean there was a high probability that they might escape from prison and kill again. Executing them would be the only effective restraint under the circumstances.

”Advise and Consent” – An interesting look at the political process. Involves themes of prejudice and hypocrisy.

How Should State Constitutions Be Amended?

I am currently reading a book called “The Creation of the American Republic, 1776-1787”, by Gordon S. Wood, and it has stimulated my thinking about Constitutional issues. My purpose here isn’t to provide the reader with a book review, but to discuss what I now believe is the proper amendment process for a state constitution.

What I am saying here is only applicable to a state constitution, or to the constitution of a non-American republic that doesn’t have a federal-state system of government like the United States. The reason it isn’t necessarily applicable to the U.S. Constitution is because that document represents a sort of balance between the need for a national government on certain issues and the sovereignty of states. (I am not saying that I am necessarily opposed to one consolidated national government, without state governments, for the country currently called the United States. Whether our current Federal system is ideal is an issue for another day. It is certainly better than any other government now in existence.)

Before I discuss this proposed constitutional amendment process, I want to discuss the concept of a constitution. First, it must be kept in mind that the institution of government is man-made. This seems obvious, so why state it? I believe it is easy to adopt a subconscious mind-set that sees government as a natural feature of the world, that has an existence apart from the society that has created it. For instance, the British system of government is a product of hundreds of years of tradition, which doesn’t have a written constitution. I think it would be easy for people to forget that this institution is a creation of men, and can be changed or destroyed by men. Just as “society” is nothing more than a number of individual human beings, government is nothing more than an institution created and sustained by a number of individual men. Since government doesn’t exist apart from the men who create and maintain it, then why does it exist at all? All man-made creations should serve some purpose, and, ultimately, further human life. For instance, the automobile is a man-made thing that serves the purpose of transportation, which ultimately makes human lives more easy and convenient. Government is also a man-made thing, and should therefore serve certain functions.

What is the purpose of government? What function does it serve? Ultimately, government serves man’s life. More immediately, human beings must take certain actions in order to live. At the most basic level, they must produce food to eat, shelter to protect them from the elements, and all of the tools that allow them to acquire these things. Other human beings have the capacity to prevent men from taking the actions necessary to live by means of physical force. For instance, a robber uses a weapon to take what others have created to further their own lives. Therefore, in order to live, men must be free from other’s use of physical force in a manner that deprives them of the values they have created for their continued survival. It must be recognized that men are entitled to take actions necessary for maintaining their lives in a social context. People who use physical force to deprive others of the material values they have created are called criminals. Criminals must be restrained by means of physical force. For instance, a robber is put in a jail to prevent him from committing more crimes. (The length of time that a criminal should spend in jail depends on a calculation that takes into account, at a bare minimum, the level of threat that he represents to the lives of other people versus the possibility of him changing his ways -all human beings with normal functioning brains have the capacity to change.)

Each of us could individually take action to restrain criminals, but this would be inconvenient, since most of us do not want to spend our time apprehending thieves, rapists, and murderers. Government is a delegation by the population of the means of restraining criminals. (I also believe that there are other reasons why the restraint of criminals must be delegated to a central authority, and that anarchy is not compatible with a free society. In general terms, anarchy is not compatible with ensuring that a crime has been committed, and with establishing to other’s satisfaction that your use of physical force, and the amount of force used by you, to stop a criminal is justified. I believe this is what is meant by “due process”.) To sum up, an essential function of government is to ensure that the people who want to take action to further their own lives are free to do so.

Another feature of government that must be kept in mind to understand the concept of a constitution is this: government is a product of human association and collaboration. Since government involves a group of people, and since people must bring it into existence, there must be communication, collaboration, and agreement amongst those people about how the functions that government serves will be carried out. An implicit assumption contained in the need for collaboration and agreement amongst the people about the details of how government will operate is the fact that there is often more than one way to perform many government functions. Each state of the United States carries out the legitimate functions of government slightly differently. None of these arrangements are necessarily “right or wrong” in a universal sense. For instance, in the State of Texas, the final state court of appeal is divided into two separate courts. One court handles criminal appeals, and the other handles civil appeals. In other states, and in the Federal system of the United States, the final court of appeal is a single court that handles both criminal and civil appeals. Other issues that could come up include: Should the legislature be unicameral or bicameral? Should all criminal prosecutions be by means of indictment of a grand jury only, or should misdemeanor prosecutions be allowed to proceed by “information” (a charge leveled at the discretion of the District Attorney)? Which is better? (I do not know, and reasonable minds could easily disagree on such details.) Many of these details regarding how a particular government will operate will depend on the particular circumstances and context of any particular society, and the needs of a particular society may change over time. Since so many details depend on context, the people in a society must discuss what their particular needs are, and come to an agreement. Compromises may also need to be made regarding certain features of a particular government. A constitution is the most fundamental agreement amongst the people of a society about how governmental functions will be carried out in a particular society.

So, how should this fundamental agreement amongst the people about how governmental functions will be carried out be reached? Since American states already have constitutions, I will start with the assumption that there is a pre-existing institution that performs governmental functions, and propose a process for amending state constitutions that I think would better reflect the need for broad-based societal agreement over how governmental functions should be carried out in practice.

Every two or three election cycles, a question is placed on the ballot used for electing representatives to the legislature. The question would be something like: “A constitutional convention shall be called.” The voters will either check “yes” or “no”. If three quarters of all registered voters check “yes”, then a constitutional convention (a “Convention”) shall be called within a certain period of time (within about 6 months). The reason three quarters of all registered voters must vote in favor of a Convention is because a constitution is the fundamental political agreement amongst the people, so before it can be changed, there must be broad support amongst the people in favor of change. This ensures broad-based societal agreement about the basic structure of government. It is also not enough to call a Convention based on a mere three quarters of the people who happen to vote in that particular election because, in some elections, voter turnout can be low, and it would be too easy for particular interest groups to get their own supporters out to vote in favor of calling a Convention even though the majority of the population is not in favor of a change.

If three quarters of the registered voters are in favor of a convention, then there is a special election to elect Convention Delegates. Delegates for the Convention should be chosen in a manner that ensures that they are representative of the people. Probably, they should be chosen in accordance with existing voting districts for the lower house. (The “lower house” is the legislative chamber that is usually seen as being the most “representative” of the people, and usually bases representation of each district on population levels. In the Federal system of the United States, it is the House of Representatives.) Existing voting districts for the lower house are used for purposes of efficiency, since these districts would be readily known to everyone. (However, I also think that it would also be appropriate, and possibly advantageous, to create special voting districts for the sole purpose of electing Delegates to the Convention.) What is important to keep in mind is that each voting district for the Convention gets a number of Delegates in proportion to the population of registered voters in that area. So under my plan, each voting district for Convention Delegates gets the same number of Delegates as they received in the most recent legislative session for the lower house. This is done because the lower house usually bases the number of representatives each district gets on population, which means that the areas with greater populations will get to send more Delegates to the Convention. Linking the number of Delegates at the Convention to population is based on the fact that a constitution is a fundamental political agreement amongst the people, which means it must reflect the will of the population. The membership criteria for Delegates to the Convention under my plan would be the same as the criteria for membership in the lower house of the legislature. This is because the lower house of the legislature usually has the lowest criteria in terms of age, residency, and (in the past) property ownership.

Individual Delegates to the Convention are chosen for each voting district by means of election. The exact election process could be done in different ways, but I would prefer a non-partisan election, in which the highest vote-getters get to be Delegates, without any sort of primary. For instance, if a particular district gets three Delegates, then the top three vote-getters get to be delegates.

At the Convention, constitutional amendments are proposed by individual Delegates, and then voted on by all of them. If a proposed constitutional amendment gets 51% of the votes of the Delegates at the Convention, then it will be sent to the people for a ratification vote. I am uncertain at this point of the details of how a Constitutional Convention would be run, other than the requirement that a proposed amendment get 51% of the Delegates’ votes, but I think it could be left up to the Delegates to set their own rules of procedure for how amendments would be proposed to the Convention, and debated on. One other necessary rule regarding the Convention: it must last for only a set period of time. This is to ensure that it doesn’t become a permanent body. Any amendments proposed by it after this set time period are considered null and have no legal validity.

As I already noted, all proposed amendments of the Convention will be sent to the people for a ratification vote. If three quarters of the registered voters vote to ratify an amendment, then it becomes a part of the constitution. Just as when the Convention was called, requiring three quarters of registered voters to ratify an amendment ensures that it does represent an agreement of the people.

I would now like to compare this proposed Constitutional Amendment process with the current amendment process of the State of Texas, in which the state legislature plays a role. This will illustrate what I think is wrong with an existing legislature having a role in the amendment process of a constitution. It would appear that the Texas State Constitution (as of 2009) allows for the lower house of the Texas legislature to propose constitutional amendments on a 2/3 majority vote. It also appears from the text of the state constitution that a mere majority of the actual votes cast by the population will ratify the proposed amendment and make it part of the Texas State Constitution. This process has two major flaws. First, allowing the Texas State legislature to act as a Constitutional Convention is problematic. Since a legislature is a part, or aspect, of government, it has no greater right to exist than the government itself does. Since government is a delegation by the people of the right to the use of physical force to restrain criminals, it seems fundamentally contradictory for the members of the legislature, who have been delegated that power, to play a role in the process of the delegation of that very power. In order for a legislature to be an actual representative body, as opposed to a sort of aristocratic body, there must be some more fundamental, and prior, agreement amongst the people represented about the basic terms under which the legislature is to exist, such as: how and when the legislators are elected, for how long they meet, how long they are to serve, on what matters they may legislate, etc. Logically, these issues must be decided by the people prior to the establishment of a legislature. It is possible to combine a legislature and a constitutional convention in one body of people, but this would be a bad idea. The legislators would tend to create a constitution that favored the legislature as an institution, whereas a body of people whose sole purpose is to create the constitution would have to live under that constitution, so they would create a document that is more representative of the people’s will.

Convening a special body just for the purpose of creating or amending a constitution will also ensure that the best and the brightest Delegates will be elected to the Convention. Once a Constitution is established, any particular legislative body can have less intelligent and competent people in it because the Constitution will have institutional safeguards in place against legislative tyranny, such as the courts to strike down unconstitutional laws. Also, while the best and the brightest might be willing to serve, for a short period, in the creation of a Constitution, they may not desire a career in politics, so the legislature may normally be composed of people of lesser abilities. It is okay for any particular legislature to be filled with incompetents, because its powers are already defined by a constitution, so the damage they can do is not as great. A constitutional convention filled with incompetents would be a disaster, because they are setting the broad terms by which all future legislatures, executives, and judges are to govern. In essence, a special Convention that meets for that sole purpose, and then is dissolved provides an extra institutional safeguard against any sort of legislative tyranny, and insures that the most competent people are involved in the constitutional drafting/amending process.

The second major flaw I see with the current amendment process for the Texas state constitution is that it appears to only require a simple majority of the people that actually vote regarding the proposed amendment to ratify it. This means that a very small segment of the population can ratify constitutional amendments, and would tend to encourage small interest groups to write constitutional law. There is no assurance that the particular constitutional amendment that is ratified represents the agreement and consent of “the people”, just special interest groups.

A perusal of the Texas State Constitution reveals that much of it reads more like a set of statutes than a constitution. The important, fundamental, portions of it, are drowning in a sea of trivial provisions. By separating out the constitutional amendment process from the legislative process, and by requiring a super-majority of the voters to ratify, I believe a better constitution can be maintained, and that it will truly represent a fundamental agreement of the people, rather than a legalistic collage of special interest groups.

Woman Ordered to Pay $80,000 per Song: Time To Reform Copyright Law

A woman has been found liable for copyright infringement by a Federal court in Minnesota, and ordered to pay $80,000 per song that she was found to have illegally shared on the Internet. In total, she must pay the record industry $1.92 million dollars. The reason she must pay $80,000 per song is because Federal law currently has a “statutory damages” provision that allows copyright holders to be awarded a set amount of money, regardless of the actual damages that they suffered. This is why the woman is being ordered to pay $80,000 per song when she could have purchased the songs for a few dollars, or less. I think this case illustrates the need for Congress to do away with statutory damages awards in Copyright law.

The law must be proportional to the wrong committed. We do not execute a shop-lifter because the wrong that he has committed is not great enough to merit that level of restraint. (“Probation” is sufficient to allow the state to monitor him for a period of time, and ensure that he doesn’t get into more trouble.) The risk that the shop-lifter poses to the rights of others is minimal, and the chance that he will reform his behavior is great. (It should be noted that if this woman had stolen these songs out of the store, she would get less of a punishment than she is receiving in civil court by being ordered to pay $1.92 million dollars.) Furthermore, the purpose of the civil court system is to make the victim whole with money compensation -to provide reparations- not to punish the wrongdoer. This means that the record companies are entitled to an award of their actual damages in the case (plus attorney’s fees) -not an arbitrarily high amount of money that serves no purpose other than to arbitrarily aggrandize the record companies’ wallets and frighten people that may be wrongly accused of file-sharing into settling for fear that they may get a $1.92 million dollar judgment against them.