Does the First Amendment protect atheism

Bill Barr's speech at Notre Dame has started me thinking about the following question: Does the First Amendment protect atheism?

The so-called Religious Clauses of the First Amendment read:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

By definition, atheism is not a religion, but rather the absence of religion. So, is the absence of religion protected by the Religious Clauses of the First Amendment?

In a concurring opinion in McCreary County v. American Civil Liberties Union of Ky., Justice Sandra Day O'Connor wrote:

The Religion Clauses ... protect adherents of all religions, as well as those who believe in no religion at all.

To the modern sensibility, the first of the Religious Clauses, the so-called Establishment Clause ("Congress shall make no law respecting an establishment of religion") seems to suggest that the government cannot prefer religion over irreligion. A strong argument can be made, however, that the intention of the Founders in writing the Establishment Clause was not to prevent Congress from preferring religion over irreligion, but from preferring one religion over another ("establishing" one religion as the state religion). This was done, so the argument would go, in order to prevent what happened in England, where the Church of England (or Anglicanism) was the established church (or official church) of the state. After all, one of the main reasons why colonists left England for America was to avoid persecution for adhering to Christian sects (for example, Puritanism) other than official Anglicanism.

This was the view, for example, of Supreme Court Justice Joseph Story, who wrote in his Commentaries on the Constitution of the United States, first published in 1833:

The real object of the First Amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity [i.e., atheism], by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.

If this second interpretation of the Establishment Clause is deemed correct (and, AFAIK, there is nothing to prevent the SCOTUS from reversing Justice O'Connor's opinion and so deeming), then the First Amendment would provide no protection for atheism, which is not a religion. For more discussion, see here.

Krugman vs Barr

Paul Krugman is a distinguished, Nobel-prize-winning economist whose pronouncements on economic matters deserve attention. And yet, Krugman often expresses opinions on subjects he knows nothing about and thereby makes a complete fool of himself. This was the case yet again the other day when he devoted his New York Times column to responding to remarks that Attorney General William Barr recently delivered to the Law School and the de Nicola Center for Ethics and Culture at the University of Notre Dame.

It is difficult even to make a comparison of Krugman’s column with Barr's text because the former is so disconnected from the latter and because Krugman hardly addresses the substance of Barr's argument, instead spending most of his time lobbing wild accusations and slanders.

Barr's text consists of the following propositions (I have numbered them so that I can refer to them more easily):

1. One necessary precondition for the successful functioning of a state that grants its citizens substantial individual freedom is that these citizens possess private virtue.
2. Traditionally (in the Western world and, in particular, in the United States) private virtue has been inculcated in large part by religion.
3. Consequently, one necessary precondition for the successful functioning of a state that grants its citizens substantial individual freedom is that these citizens be allowed to practice religion.
4. Militant secularists are actively attacking the right of American citizens to practice religion and to act in accordance with their religious beliefs; that is, militant secularists are not merely claiming the right to be atheists themselves, but are actively seeking to impose their secularism and atheism on people of faith; the militarism of these secularists has itself become something of a crusade, exhibiting the most intolerant manifestations of religion, including figurative inquisitions, excommunications, and burnings at the stake, carried out through lawsuits and savage social media campaigns.
5. These militant secularists do not have any moral system with which to replace religion; in fact, these secularists are by and large also moral relativists, maintain that many of the moral precepts handed down by religion are invalid (in other words, all pronouncements on morals are invalid except their own), and actively work to overthrow these moral precepts.
6. The elimination of the moral precepts of religion has caused a burgeoning of social pathologies of various strains, which impair the quality of life in the community.
7. Given the fact that the private virtue of citizens, which would ordinarily act as a brake on bad behavior, now plays a much-diminished role, the State has stepped in to assume responsibility for addressing these social pathologies; but, instead of restraining and preventing the pathological behavior, the State simply acts to alleviate and mitigate the bad consequences of that behavior, thereby incentivizing citizens to engage in this type of behavior even more; furthermore, the closer we get to a State that provides a total safety net, that is, an all-encompassing social safety net that catches the lost after they have fallen, standing in the stead of the private virtue that would restrain them from falling in the first place, the closer we get to a totalitarian state.
8. In a state where private virtue is banished and militant secularism reigns, virtue signaling becomes another weapon with which militant secularists bludgeon their opponents and has become more important than actual private virtue.
9. We are distracted from the loss of private virtue by the noise of the digital world we live in; instead of encouraging us to reflect upon the important moral questions of life, this digital world supplies us with a seemingly infinite variety of means either to dull our spirits or to gratify our basest appetites.

Discussion of Proposition 1 goes all the way back to Plato. Propositions 1-3 form a unit and represent a well-established tradition of political theorizing, in particular about the American republic. Barr starts his exposition of Propositions 1-3 with a quote from Edmund Burke:

Men are qualified for civil liberty, in exact proportion to their disposition to put chains upon their appetites.... Society cannot exist unless a controlling power be placed somewhere; and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters.

What Burke is saying here is: by nature humans are wild, rapacious brutes who, driven by intemperate passions and appetites, must be restrained; there are two sources of restraint, a.) private virtue, which, after being inculcated in the individual through the long process of education and habituation (later in his remarks, Barr will observe that “Education is not vocational training”), overcomes man’s brutish nature and restrains from within, and b.) public force, which restrains from without; the more private virtue citizens have, the more they restrain themselves from within and the less they need to be restrained by public coercion from without; consequently, the more private virtue citizens have, the more civil liberty the state can grant them (because their private virtue will prevent them from harming their fellow citizens); if they have no private virtue at all, the state cannot grant them any civil liberty at all, and instead they must be restrained by a coercive, possibly tyrannical state.

Barr then goes on to argue that the American Founders decided to make the bold assumption that American citizens did, in fact, possess adequate private virtue and could, therefore, be granted broad civil liberty. In the Founders’ minds, Americans had learned how to govern their own passions and rapacity themselves (according to Barr, this governing of their own passions is what the term "self-government" actually refers to) and did not need to be restrained by a coercive state:

So the Founders decided to take a gamble. They called it a great experiment. They would leave ‘the People’ broad liberty, limit the coercive power of the government, and place their trust in self-discipline and the virtue of the American people. In the words of Madison, ‘We have staked our future on the ability of each of us to govern ourselves…’ This is really what was meant by ‘self-government.’ It did not mean primarily the mechanics by which we select a representative legislative body. It referred to the capacity of each individual to restrain and govern themselves.

Barr then proceeds to consider what the source of this private, restraining virtue and morality is. According to Barr, the Founders thought the source was religion, and ultimately, God:

But what was the source of this internal controlling power? In a free republic, those restraints could not be handed down from above by philosopher kings. Instead, social order must flow up from the people themselves – freely obeying the dictates of inwardly-possessed and commonly-shared moral values. And to control willful human beings, with an infinite capacity to rationalize, those moral values must rest on authority independent of men’s will – they must flow from a transcendent Supreme Being.

In the phrase “philosopher kings,” one sees a clear reference to Plato. But, according to Barr, the Founders rejected the Platonic view that order must be imposed on citizens by philosopher kings from above. Such an arrangement would be too coercive. What the Founders wanted instead was a “free republic,” in which the requisite restraint would flow from the bottom up, from the citizens themselves. And this was possible, the Founders concluded, because Americans, long habituated by religion to following the moral precepts that flowed from the independent, transcendent authority of a Supreme Being, possessed adequate private virtue to allow them to restrain themselves. Without this exposure to religious teaching, there could be no private virtue; and without private virtue, a free republic that granted its citizens broad civil liberty was impossible.

Barr then goes on to consider what moral rules Americans derived from the Supreme Being through religion:

First, [religion] gives us the right rules to live by. The Founding generation were Christians. They believed that the Judaeo-Christian moral system corresponds to the true nature of man. Those moral precepts start with the two great commandments – to Love God with your whole heart, soul, and mind; and to Love Thy Neighbor as Thyself. But they also include the guidance of natural law – a real, transcendent moral order which flows from God’s eternal law – the divine wisdom by which the whole of creation is ordered. The eternal law is impressed upon, and reflected in, all created things.”

Barr here acknowledges the historical fact that the Founders believed that private virtue and moral precepts flowed from a Supreme Being. It should be noted, however, that Barr speaks of private virtue as also deriving from natural law. While it is true that many Christian thinkers derived natural law from the Judaeo-Christian God, the Greeks and Romans for many centuries before the birth of Christ had derived natural law from their own ideas about the natural order imprinted by the Transcendent on nature. In other words, the theory of natural law is not just part of the Judaeo-Christian tradition, but rather has been a part of the Western, Graeco-Roman political and philosophical tradition from the very start. Barr then gives a brief primer on natural law:

From the nature of things we can, through reason and experience, discern standards of right and wrong that exist independent of human will. Modern secularists dismiss this idea of morality as other-worldly superstition imposed by a kill-joy clergy. In fact, Judaeo-Christian moral standards are the ultimate utilitarian rules for human conduct. They reflect the rules that are best for man, not in the by and by, but in the here and now. They are like God’s instruction manual for the best running of man and human society.

Once again note that, although Barr describes natural law in terms of Judaeo-Christian theology, he is careful to observe that the way in which even Christians recognize natural law is by using reason and experience to deduce from nature objective (“independent of human will”) standards of right and wrong.

Barr summarizes Propositions 1-3 as follows:

In short, in the Framers’ view, free government was only suitable and sustainable for a religious people – a people who recognized that there was a transcendent moral order antecedent to both the state and man-made law and who had the discipline to control themselves according to those enduring principles.

Barr's defense of Propositions 1-3 is an informed and thoughtful presentation of the theory that the American form of government, namely, a republic that grants broad individual liberty to its citizens, can flourish only where the citizenry has been habituated by religion to private virtue. Barr’s quotes from John Adams and Father John Courtney Murray recapitulate this theory nicely:

We have no government armed with the power which is capable of contending with human passions unbridled by morality and religion. Our Constitution was made only for a moral and religious people. It is wholly inadequate for the government of any other.

[The American tenet is not that] free government is inevitable, only that it is possible, and that its possibility can be realized only when the people as a whole are inwardly governed by the recognized imperatives of the universal moral order.

In his dissenting opinion in McCreary County v. American Civil Liberties Union of Ky., Justice Antonin Scalia also reminded us:

Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality. ... President Washington opened his Presidency with a prayer ... and reminded his fellow citizens at the conclusion of it that “reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle."

As the various quotes from Burke, Adams, Washington, and Murray and the reference to Plato show, this theory represents a tradition of moral and political philosophy with antecedents that go back millennia. In his article entitled Tocqueville on Christianity and American Democracy, Carson Holloway sums up this tradition:

In forgetting religion’s role as a public institution, we also have lost contact with an old and venerable tradition of political philosophy. Even the great non-theological thinkers in the history of Western political thought—those who considered religion not from the standpoint of the religious teacher concerned with the salvation of souls but from the perspective of the statesman concerned with protecting the common good—tell us that religion is necessary to a healthy political community. This is the teaching of the classical founders of that tradition, such as Plato and Aristotle. It is also the teaching of modern figures such as Edmund Burke and John Locke, who emphasized that free government could not be maintained in the absence of religion. ... In seeking to renew our understanding of religion’s contribution to freedom, we can turn to no better teacher than Alexis de Tocqueville. Tocqueville explained more thoroughly than anyone else why religion, though in some ways a pre-modern and pre-democratic phenomenon, is nevertheless essential to the health of modern democracy. This is one of the key themes of his monumental study, Democracy in America. [emphasis added]

Holloway has in mind such passages from Tocqueville as the following:

[Some] see in the republic a permanent and tranquil state, a necessary goal toward which ideas and mores carry modern societies each day, and who sincerely wish to prepare men to be free. When these attack religious beliefs, they follow their passions and not their interests. Despotism can do without faith, but freedom cannot. Religion is much more necessary in the republic they extol than in the monarchy they attack, and in democratic republics more than all others. How could society fail to perish if, while the political bond is relaxed, the moral bond were not tightened? [This is almost an exact echo of Burke's sentiment: "Men are qualified for civil liberty, in exact proportion to their disposition to put chains upon their appetites."] And what makes a people master of itself if it has not submitted to God?

Alexis de Tocqueville. Democracy in America (p. 282). University of Chicago Press. Kindle Edition.

Below we will hear more from Tocqueville about the purely practical benefits of religion for a free republic.

Once Barr has presented his case for Propositions 1-3, he goes on to establish the rest of the Propositions in his argument.

That Proposition 4 is true, Barr makes clear by listing various examples of legislation, litigation, and executive orders that seek to force the views of militant secularists on people of faith. For example:

• Legislation has been passed that requires “public schools to adopt an LGBT curriculum that many feel is inconsistent with traditional Christian teaching;” such a curriculum often does not provide “any opt out for religious families.”
• The Obama Administration sought “to force religious employers, including Catholic religious orders, to violate their sincerely held religious views by funding contraceptive and abortifacient coverage in their health plans.”
• A variety of legal and legislative attempts have been made to starve religious institutions, including schools and hospitals, of funds that are made readily available to non-religious institutions.

It needs to be emphasized that Barr is not advocating for the proposition that secularists and atheists should have religion forced on them and be denied the right to be secularists and atheists. Rather, what Barr finds problematical is the attempt by secularists and atheists to actively impose their agenda on people of faith:

The problem is not that religion is being forced on others. The problem is that irreligion and secular values are being forced on people of faith. This reminds me of how some Roman emperors could not leave their loyal Christian subjects in peace but would mandate that they violate their conscience by offering religious sacrifice to the emperor as a god. Similarly, militant secularists today do not have a live and let live spirit - they are not content to leave religious people alone to practice their faith. Instead, they seem to take a delight in compelling people to violate their conscience.

Barr states Proposition 5 as follows;

We are told we are living in a post-Christian era. But what has replaced the Judaeo-Christian moral system? What is it that can fill the spiritual void in the hearts of the individual person? And what is a system of values that can sustain human social life? The fact is that no secular creed has emerged capable of performing the role of religion. Scholarship [see, for example, here] suggests that religion has been integral to the development and thriving of Homo sapiens since we emerged roughly 50,000 years ago. It is just for the past few hundred years we have experimented in living without religion. We hear much today about our humane values. But, in the final analysis, what undergirds these values? What commands our adherence to them? What we call ‘values’ today are really nothing more than mere sentimentality, still drawing on the vapor trails of Christianity.

In addition to the one great practical New Testament commandment, to do unto others as you would have them do unto you, there are the Ten Commandments of the Old Testament, the non-theological ones of which exhort Christians to honor their parents, not to commit murder and adultery, and not to steal and lie. In addition to these commandments are the commandments of natural law, which, as we have seen above, religious thinkers think of as deriving from God, but also can be seen as derivable by reason from nature. Taken in sum, these commandments provide a fairly comprehensive list of basic guidelines on how humans should behave if they want to live a virtuous life. If one accepts religion, one gets the societal benefit of all these commandments, sanctioned by the non-recourse authority of a Supreme, Omniscient God. Setting aside theological issues for the moment, the utilitarian and practical value to the state if its citizens accept Judaeo-Christian religion and its moral teachings is enormous. Without the clarity and certainty of religion, men are at sea on a flux of doubt and confusion.

The practical value to government of moral teachings derived from religion is made obvious by Tocqueville:

General ideas relative to God and human nature are therefore, among all ideas, the ones it is most fitting to shield from the habitual action of individual reason and for which there is most to gain and least to lose in recognizing an authority. The first object and one of the principal advantages of religions is to furnish a solution for each of these primordial questions that is clear, precise, intelligible to the crowd, and very lasting. ... [O]ne can say that every religion ... imposes a salutary yoke on the intellect; and one must recognize that if it does not save men in the other world, it is at least very useful to their happiness and their greatness in this one. That is above all true of men who live in free countries. When religion is destroyed in a people, doubt takes hold of the highest portions of the intellect and half paralyzes all the others. Each becomes accustomed to having only confused and changing notions about matters that most interest those like him and himself; one defends one’s opinions badly or abandons them, and as one despairs of being able to resolve by oneself the greatest problems that human destiny presents, one is reduced, like a coward, to not thinking about them at all. Such a state cannot fail to enervate souls; it slackens the springs of the will and prepares citizens for servitude. Not only does it then happen that they allow their freedom to be taken away, but often they give it over. When authority in the matter of religion no longer exists, nor in the matter of politics, men are soon frightened at the aspect of this limitless independence. This perpetual agitation of all things makes them restive and fatigues them. As everything is moving in the world of the intellect, they want at least that all be firm and stable in the material order; and as they are no longer able to recapture their former beliefs, they give themselves a master. As for me, I doubt that man can ever support a complete religious independence and an entire political freedom at once; and I am brought to think that if he has no faith, he must serve, and if he is free, he must believe.

Alexis de Tocqueville. Democracy in America (pp. 418-419). University of Chicago Press. Kindle Edition.

As for the question of whether the secularists who seek to eliminate religion have supplied a moral system that can take its place, it is sufficient to quote Tocqueville once again:

Still we see that these philosophers themselves are almost always surrounded by uncertainties; that at each step the natural light that enlightens them is obscured and threatens to be extinguished, and that despite all their efforts, they still have been able to discover only a few contradictory notions, in the midst of which the human mind has constantly floated for thousands of years without being able to seize the truth firmly or even to find new errors. Such studies are much above the average capacity of men, and even if most men should be capable of engaging in them, it is evident that they would not have the leisure for it.

Alexis de Tocqueville. Democracy in America (p. 417-418). University of Chicago Press. Kindle Edition.

In other words, even today, if people behave morally, they usually do so because they are unconsciously adhering to the shorthand list of basic moral tenets inculcated in them by religion and sanctioned by the non-recourse authority of the Supreme Being rather than because they have taken the time to analyze the situation rationally and are acting in accordance with the latest (uncertain, contradictory, fluctuating, abstruse) philosophical or social science theories about what is moral.

We have observed, then, that a.) great practical value accrues to the free republic from citizens who adhere to the moral tenets of religion and b.) militant secularists have nothing to replace these moral tenets of religion with. From these observations we can draw the ironic conclusion that for a militant secularist like Paul Krugman, a man who would surely insist that he is guided by reason alone, the most reasonable way he can guarantee that our free republic will continue to flourish is to promote the religious education of all its citizens. And yet, as we shall see below, instead of giving thanks in his column for people of faith, Krugman refers to them as "unhinged religious zealots."

Barr expresses Proposition 6 as follows:

By any honest assessment, the consequences of this moral upheaval have been grim. Virtually every measure of social pathology continues to gain ground. In 1965, the illegitimacy rate was eight percent. In 1992, when I was last Attorney General, it was 25 percent. Today it is over 40 percent. In many of our large urban areas, it is around 70 percent. Along with the wreckage of the family, we are seeing record levels of depression and mental illness, dispirited young people, soaring suicide rates, increasing numbers of angry and alienated young males, an increase in senseless violence, and a deadly drug epidemic.

Proposition 6 is practically the only portion of Barr’s presentation that Krugman addresses, doing so by citing declining statistics for "violence":

It seems almost beside the point to note that Barr’s claim that secularism is responsible for violence happens to be empirically verifiable nonsense. America has certainly become less religious over the past quarter century, with a large rise in the number of religiously unaffiliated and growing social liberalism on issues like same-sex marriage; it has also seen a dramatic decline in violent crime.

Note that Krugman selectively cites statistics about "violence" and does not deny that other kinds of social pathology besides “violence” have been on the rise and that the connection between the breakdown of private virtue and the increase in social pathology is not far-fetched. One need only look at the recent experience of those bastions of militant secularism San Francisco, Oakland, and Berkeley to see that such a connection is plausible. A recent article in City Journal entitled San Francisco’s Quality-of-Life Toll by Erica Sandberg informs us:

San Francisco is the nation’s leader in property crime. Burglary, larceny, shoplifting, and vandalism are included under this ugly umbrella. The rate of car break-ins is particularly striking: in 2017 over 30,000 reports were filed, and the current average is 51 per day. Other low-level offenses, including drug dealing, street harassment, encampments, indecent exposure, public intoxication, simple assault, and disorderly conduct are also rampant.

The experience of Seattle Washington, as revealed in the recent video Seattle Is Dying, is further testament to the connection between the failure to enforce ordinary moral strictures and the burgeoning of social pathology and its resultant negative impact on the civic life of the community.

Barr expresses Proposition 7 as follows:

In the past, when societies were threatened by moral chaos, the overall social costs of licentiousness and irresponsible personal conduct became so high that society ultimately recoiled and reevaluated the path they were on. But today – in the face of all the increasing pathologies – instead of addressing the underlying cause, we have the State in the role of Alleviator of Bad Consequences. We call on the State to mitigate the social costs of personal misconduct and irresponsibility. So the reaction to growing illegitimacy is not sexual responsibility, but abortion. The reaction to drug addiction is safe injection sites. The solution to the breakdown of the family is for the State to set itself up as the ersatz husband for single mothers and the ersatz father to their children. The call comes for more and more social programs to deal with the wreckage. While we think we are solving problems, we are underwriting them. We start with an untrammeled freedom and we end up as dependents of a coercive state on whom we depend.

In the 19th century Alexis de Tocqueville saw a similar trend. With startling clairvoyance, he wrote about the burgeoning "soft despotism" of the State:

Above [this race of men] an immense tutelary power is elevated, which alone takes charge of assuring their enjoyments and watching over their fate. It is absolute, detailed, regular, far-seeing, and mild. It would resemble paternal power if, like that, it had for its object to prepare men for manhood; but on the contrary, it seeks only to keep them fixed irrevocably in childhood; it likes citizens to enjoy themselves provided that they think only of enjoying themselves. It willingly works for their happiness; but it wants to be the unique agent and sole arbiter of that; it provides for their security, foresees and secures their needs, facilitates their pleasures, conducts their principal affairs, directs their industry, regulates their estates, divides their inheritances; can it not take away from them entirely the trouble of thinking and the pain of living? So it is that every day it renders the employment of free will less useful and more rare; it confines the action of the will in a smaller space and little by little steals the very use of free will from each citizen. Equality has prepared men for all these things: it has disposed them to tolerate them and often even to regard them as a benefit. After having thus successively taken each member of the community in its powerful grasp and fashioned him at will, the supreme power then extends its arm over the whole community. It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.

Alexis de Tocqueville. Democracy in America (p. 663-664). University of Chicago Press. Kindle Edition.

Elsewhere Tocqueville writes:

After all, what good is it to me to have an authority always ready to see to the tranquil enjoyment of my pleasures, to brush away all dangers from my path without my having to think about them, if such an authority, as well as removing thorns from under my feet, is also the absolute master of my freedom or if it so takes over all activity and life that around it all must languish when it languishes, sleep when it sleeps and perish when it perishes. ... When nations have reached this point, they have to modify their laws and customs or perish, for the spring of public virtue has, as it were, dried up. Subjects still exist but citizens are no more.

Alexis de Tocqueville. Democracy in America (Penguin Classics) (p. 110-1). Penguin Books Ltd. Kindle Edition.

For Tocqueville, the tutelary State gradually insinuates itself into every aspect of private life and provides for our every need. By doing so, however, it infantilizes its citizens: "it renders the employment of free will less useful and more rare; it confines the action of the will in a smaller space and little by little steals the very use of free will from each citizen ... it compresses, enervates, extinguishes, and stupefies a people." For Burr, the sickness has progressed even further: not only does the State provide for all our needs, but now we even call upon it "to mitigate the social costs of personal misconduct and irresponsibility." In essence, the State now even offers us a kind of insurance policy or indemnification, which, by insulating us from the negative outcomes that would ordinarily discourage us from engaging in pathological and reckless behavior, actually incentivizes such behavior. If a person knows that his automobile is insured, he drives more recklessly because he knows that any loss will be covered by his insurance. If a man and woman are aware that abortion paid for by the State is an option, they will behave more licentiously because they know that any pregnancy can be terminated. (This is actually just another example of the well known economic phenomenon of moral hazard, something that the Nobel-prize-winning economist Krugman, of all people, should be familiar with; it is not without reason that Barr speaks of "social programs underwriting our societal ills.")

A state that insinuates itself into the totality of private life, however, is the very definition of totalitarianism. In its article on totalitarianism, Wikipedia states:

[A] totalitarian regime attempts to control virtually all aspects of the social life, including the economy, education, art, science, private life and morals of citizens.

Gradually, the State exerts coercive control. "It willingly works for [mankind's] happiness; but it wants to be the unique agent and sole arbiter of that. ... till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd." "We start with an untrammeled freedom and we end up as dependents of a coercive state on whom we depend." We soon find ourselves robbed of all freedom of action, individual responsibility, creativity, and initiative. After having fought brutal wars in the last century to resist it and without quite realizing how we got there, our society has now imposed totalitarianism (albeit, a soft totalitarianism) on itself.

Barr expresses Proposition 8 as follows:

Interestingly, this idea of the State as the alleviator of bad consequences has given rise to a new moral system that goes hand-in-hand with the secularization of society. It can be called the system of 'macro-morality.' It is in some ways an inversion of Christian morality. Christianity teaches a micro-morality: we transform the world by focusing on our own personal morality and transformation. The new secular religion teaches macro-morality" one’s morality is not gauged by their private conduct, but rather on their commitment to political causes and collective action to address social problems. This system allows us to not worry so much about the strictures on our private lives, while we find salvation on the picket line. We can signal our finely tuned moral sensibilities by demonstrating for this cause or that. Something happened recently that crystalized the difference between these moral systems. I was attending Mass at a parish I did not usually go to in Washington, D.C. At the end of Mass, the Chairman [might as well be: Commissar] of the Social Justice Committee got up to give his report to the parish. He pointed to the growing homeless problem in D.C. and explained that more mobile soup kitchens were needed to feed them. This being a Catholic church, I expected him to call for volunteers to go out and provide this need. Instead, he recounted all the visits that the Committee had made to the D.C. government to lobby for higher taxes and more spending to fund mobile soup kitchens.

In essence, what Barr is saying is: virtue-signaling is not the same thing as virtue. There is no refuge from the virtue-signaling of militant secularists these days. To take but a single example, it used to be the case that the Academy Awards were an event that all Americans had a stake in. Every year, people would latch on to their particular favorites and cheer or moan as they won or lost when the envelope was opened. People's partisanship for one nominee or the other was always good natured. No one whose favorite actor or actress or director or film lost was disappointed for more than a minute. And, the next morning around the water cooler, opinions and preferences were shared; enthusiastically, to be sure, but also graciously. Now, all that has changed. Actors and actresses are militantly and sternly evaluated on the basis of the political correctness of their acceptance speeches. As people stand at the podium and advocate for the latest cause du jour and pontificate about the need to show tolerance for diversity, I keep thinking: “Unless, of course, that diversity consists of diverse opinions coming out of the mouths of Conservatives or people of faith. Those opinions are always beyond the pale.” People of faith hardly watch the Awards any more because they feel they are being mocked and denigrated. I keep hoping that some truly courageous actor or actress will step up to the microphone and express a different point of view. My hopes are, of course, always dashed: whoever expressed such a different perspective would be committing professional suicide in politically correct La La Land, in the same way one would commit professional suicide in Silicon Valley or South of Market in San Francisco by, say, objecting to same sex marriage on religious grounds (as can be inferred from what happened to Brendan Eich). I am always struck by the way in which those who signal that they are tolerant of diversity simply cannot abide the expression of beliefs that are truly different from their own. They are constantly signaling that they are virtuous, but are unable to practice the actual virtue of allowing others who hold beliefs different from their own to live in peace. Rather, they believe that if they virtue signal loud enough and in enough public forums, they can drown out and suppress those different beliefs and impose their own beliefs on the benighted. The films themselves at the Academy Awards are often honored not because of their artistic merit, but because they contain the "right" political message. As Barr sums it up:

Secularists, and their allies among the “progressives,” have marshaled all the force of mass communications, popular culture, the entertainment industry, and academia in an unremitting assault on religion and traditional values.

Barr expresses Proposition 9 as follows:

The pervasiveness and power of our high-tech popular culture fuels apostasy in another way. It provides an unprecedented degree of distraction. Part of the human condition is that there are big questions that should stare us in the face. Are we created or are we purely material accidents? Does our life have any meaning or purpose? But, as Blaise Pascal observed, instead of grappling with these questions, humans can be easily distracted from thinking about the “final things.” Indeed, we now live in the age of distraction where we can envelop ourselves in a world of digital stimulation and universal connectivity. And we have almost limitless ways of indulging all our physical appetites.

Clearly, Barr is too polite to be explicit about what he is primarily referring to: namely, the massive quantities of pornographic material that can be found online. But, there are also the violent video games, inane and vapid music (also usually served up to us through soft porn videos), the gladiatorial competitions of professional sports (now filled with virtue signalers, too), the endless banal offerings accessed on cable TV or through outlets like Netflix, Hulu, and YouTube, and all the rest of the cultural detritus that floods into our minds every day through our interface with the digital world and distracts us from thinking about the "final things."

In sum, then, Barr’s speech was a devastating critique of our modern world, laced with learned references to serious controversies of political and moral philosophy, the docket of cases before the Justice Department and Courts that involve questions of religious freedom (cases about which the Attorney General is uniquely well-qualified to speak), and a variety of well-documented social ills in modern life. What was Paul Krugman’s response to all this?

Listening to [Barr's speech], I found myself thinking of the title of an old movie: “God Is My Co-Pilot.” What I realized is that Donald Trump’s minions have now gone that title one better: If Barr’s speech is any indication, their strategy is to make God their boss’s co-conspirator. ... William Barr ... is sounding remarkably like America’s most unhinged religious zealots, the kind of people who insist that we keep experiencing mass murder because schools teach the theory of evolution. Guns don’t kill people — Darwin kills people! So what’s going on here? Pardon my cynicism, but I seriously doubt that Barr, whose boss must be the least godly man ever to occupy the White House, has suddenly realized to his horror that America is becoming more secular. No, this outburst of God-talk is surely a response to the way the walls are closing in on Trump, the high likelihood that he will be impeached for high crimes and misdemeanors. Trump’s response to his predicament has been to ramp up the ugliness in an effort to rally his base. The racism has gotten even more explicit, the paranoia about the deep state more extreme. But who makes up Trump’s base? The usual answer is working-class whites, but a deeper dive into the data suggests that it’s more specific: It’s really evangelical working-class whites who are staying with Trump despite growing evidence of his malfeasance and unsuitability for high office. And at a more elite level, while a vast majority of Republican politicians have meekly fallen in line behind Trump, his truly enthusiastic support comes from religious leaders like Jerry Falwell Jr., who have their own ethical issues, but have called on their followers to “render to God and Trump.” Patriotism, Samuel Johnson famously declared, is the last refuge of scoundrels. But for all his talk of America first, that’s not a refuge that works very well for Trump, with his subservience to foreign autocrats and, most recently, his shameful betrayal of the Kurds. So Trump is instead taking shelter behind bigotry — racial, of course, but now religious as well. Will it work? There is a substantial minority of Americans with whom warnings about sinister secularists resonate. But they are a minority. Overall, we’re clearly becoming a more tolerant nation, one in which people have increasingly positive views of others’ religious beliefs, including atheism. So the efforts of Trump’s henchmen to use the specter of secularism to distract people from their boss’s sins probably won’t work. But I could be wrong. And if I am wrong, if religious bigotry turns out to be a winning strategy, all I can say is, God help us.

Darwin kills people? Where was anything like that stated in Barr's text? Krugman's column is simply sophomoric hyperbole. Instead of actually addressing Barr's arguments, Krugman questions Barr's motives. That's because Paul sees yet another "conspiracy" and knows "what is really going on." Once again, the “walls are closing in” on Trump. In Krugman's view, Barr’s speech was not the product of years of reflection about a wide range of social problems and difficult philosophical, political, moral, and religious issues and theories, reflection that started long before he had anything to do with Trump, but instead was just a bunch of “God-talk” and “religious bigotry” slapped together by one of Trump’s “minions/henchmen” on the spur of the moment to distract the “unhinged religious zealots” from the current impeachment inquiry and to provide Trump with a “shelter” to hide behind.

Krugman adds to his slanders:

Consider for a moment how inappropriate it is for Barr, of all people, to have given such a speech. The Constitution guarantees freedom of religion; the nation’s chief law enforcement officer has no business denouncing those who exercise that freedom by choosing not to endorse any religion.

One of Barr's goals in giving the speech and publishing its contents on the Justice Department website was surely to make the point that it is perfectly appropriate and normal for the Attorney General of the United States to express sentiments of a religious nature, nay, even more specifically, to express sentiments as a Roman Catholic to a Roman Catholic audience [gasp, horrors!]. The First Amendment guarantees that "Congress shall make no law ... prohibiting the free exercise [of religion]." Surely, in making his remarks, Barr was doing nothing more than exercising his religion. Perhaps his behavior was somewhat obtrusive and provocative, but that was the whole point: he was trying to retake ground that had been ceded. Judging from his dissent in McCreary (see above), my guess is that Antonin Scalia would find Barr's speech to be constitutional. (Barr's speech may even be interpreted to suggest that a challenge to McCreary by the Trump Justice Department is to be expected, a challenge that, given the recent additions of Gorsuch and Kavanaugh to the SCOTUS, may well succeed.) By denouncing Barr's remarks as "religious bigotry," Krugman just proves one of Barr's main contentions, namely, that religion is under attack by secularists like Krugman.

I note that Barr's speech was favorably reviewed by the prominent evangelical Albert Mohler in a number of blog posts. Mohler links to another article about Barr's speech and about Barr by Joan Walsh in The Nation, entitled William Barr Is Neck-Deep in Extremist Catholic Institutions. To make her point that Barr is "neck deep in extremist Catholic organizations" ("Scary shit." Walsh so eloquently writes), Walsh points out that Barr has connections to such "nefarious" organizations as the conservative think tank Ethics and Public Policy Center and the Federalist Society (the latter founded by those other well-known religious bigots, Robert Bork, Antonin Scalia, and Theodore Olson). Anyone familiar with these organizations knows that they are conservative and that the EPPC is "dedicated to applying the Judaeo-Christian moral tradition to critical issues of public policy," but they are anything but extreme. As Albert Mohler comments rather amusingly in his blog:

What exactly does it take in the view of the secular left to be an extremist? The bottom line is that an extremist Catholic, in the view of the secular left, is [just] an actual Catholic. An extremist evangelical is [just] an actual evangelical.

For militant secularists like Krugman and Walsh religious extremism and bigotry is just the mere expression of religious beliefs.

In sum, then: William Barr is a thoughtful and cultured lawyer and a pious man, the kind of individual we should be proud to have as our Attorney General; it is, of course, reasonable to disagree with Barr's theory about the place of religion in American life, just as it is reasonable to disagree with the theory Barr expressed about obstruction of justice in his famous memo; what must be granted, however, is that both theories are the result of long thinking and vast experience with the law and with Western moral and political philosophy and are held in good faith; the caricature of Barr as Trump's "minion" or "henchman" and as motivated solely by partisan concerns is unfounded and despicable; as for Paul Krugman, on the other hand, where he dredged up his lunatic ravings besides from the dark muck of his own personal prejudices and his irrational and unbridled rage against Trump, it is difficult to say; when it comes to anything besides economics, it is obvious that Krugman is an uninformed, uneducated, uncultured buffoon trapped in his nightmare of Trump Derangement Syndrome.

Due process for me, but not for thee

The 5th Amendment reads: “nor [shall any person] be deprived of life, liberty, or property, without due process of law.” Likewise, the 14th Amendment reads: “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

One of the main arguments used by Democrats to support Roe v Wade was the assertion that to deny women the freedom to have an abortion would be to deny them liberty without the due process or equal protection of the law in violation of the 14th Amendment. For example, Justice Harry Blackmun, adopting this argument, wrote in the majority opinion for Roe: "A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment."

Likewise, one of the main arguments used by Democrats to support the Obergefell decision was the assertion that to deny homosexuals the freedom to marry would be to deny them liberty without the due process or equal protection of the law in violation of the 14th Amendment. For example, Justice Anthony Kennedy, adopting this argument, wrote in the majority opinion for Obergefell: "The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry."

In my lifetime, then, Democrats have given the impression that they are dedicated to vindicating for all Americans the due process and equal protection rights guaranteed by the 5th and 14th Amendments. And yet, this week we learned that the Democratic Party is not interested in vindicating these rights … for Republicans.

Republican House Leader Kevin McCarthy wrote to House Speaker Nancy Pelosi today: “I am writing to request you suspend all efforts surrounding your ‘impeachment inquiry’ until transparent and equitable rules are established to govern the procedure, as is customary … Unfortunately, you have given no clear indication as to how your impeachment inquiry will proceed — including whether key historical precedents or basic standards of due process will be observed. … At a news conference yesterday, you insisted, ‘we have to be fair to the President.’ If those words are taken to be sincere, the American people deserve assurance that basic standards of due process will be present."

Speaker Pelosi denied Leader McCarthy’s request, making it clear that the Democrats’ idea of the 5th and 14th Amendments is: Due process and equal protection for all … except Republicans.

Reflections on the whistleblower's report. Part 2

The Democrats are the real thugs in this episode, employing the methods of Lavrentiy Beria, the head of Joseph Stalin's secret police apparatus, the NKVD, who famously said: "Show me the man and I will show you the crime."

Even before he was inaugurated, the Democrats decided that Trump must be removed from office. Ever since, they have been desperately trying to manufacture a charge that can serve as a pretext for his removal. The first charge they trotted out was that Trump colluded with Russia. Now that it has been shown that that dog won't hunt, they have invented another charge, namely, that Trump pressured the Ukrainian president to manufacture dirt about Biden. And, isn't it funny how all these charges seem to be emanating from the American "intelligence" community and how the CIA's requirement that whistleblower reports be based on first hand information was mysteriously eliminated before the whistleblower's report, based on second hand hearsay, was submitted?

The current impeachment inquiry will not be an impartial and unbiased investigation into the question of whether a crime has been committed. Rather, the Democrats already know what verdict they will reach. They reached that verdict on election night in 2016. What we will be seeing in the House of Representatives is not the administration of justice, but merely a show trial, like those in the Soviet Union during the 1930's, a trial whose outcome has been predetermined. And yet, we are being told that it is Trump who is undermining the American republic.

Reflections on the whistleblower's report

The whistleblower's report has all the hallmarks of a deep-state, CIA, Brennan-run operation.

Attempts will be made to construct the same kind of hagiography for the whistleblower as was constructed for Christine Blasey Ford: the whistleblower will be portrayed as a noble, apolitical, disinterested individual who is only trying to do his civic duty in the service of the best interests of his country. Of course, the fact that there are "‘some indicia of an arguable political bias on the part of the Complainant in favor of a rival political candidate" vitiates this hagiography. In addition to questions about the possible political bias of the whistleblower, other questions to ask are:

• Did the whistleblower receive professional assistance (in particular, legal assistance) in preparing his report? If he did receive assistance, what are the political and government connections of those who assisted him and who paid them?
• Why was the requirement that whistleblower reports must be based on first hand knowledge of wrongdoing eliminated immediately prior to the release of this whistleblower's report? Who was behind that change? Who were the officials from whom the whistleblower obtained his information? If all of the whistleblower's information is secondhand and derivative, then, it is worthless. The only way for investigators to discover true information is to learn the identity of and speak with the primary sources. Why did these primary sources not themselves come forward as whistleblowers? (The principles that apply here are well known to textual critics. Suppose you are trying to reconstruct an ancient text (say, one of Plato's dialogues) from three sources, a manuscript written at the end of the 9th century AD (Codex 39) and two other manuscripts from the 13th century AD that can provably be shown to derive from Codex 39. In this case, only the evidence from Codex 39 is of any value, since the evidence from the other two manuscripts is derivative.) Of course, if one takes this analysis to its logical conclusion, only the transcript of the phone call has any value, since everything derives from it.
• The only information that the whistleblower provides that cannot be derived from the transcript is the claim that the transcript was moved to a more secure server. Who issued the order to move the transcript to a more secure server? As Chris Christie pointed out yesterday (see here at minute 12), if that order was not issued by the President, but by some lower level administration official, then, Trump needs only to fire that official. Trump cannot be impeached for an action that he did not authorize.
• Did the whistleblower inform Democrats (and not Republicans) in advance that he was going to deliver his report, allowing the Democrats time to make preparations and plan their strategy? For example, did Nancy Pelosi and Adam Schiff have advance notice that the whistleblower was going to deliver his report? This is another ploy right out of the Blasey Ford playbook. In the Kavanaugh hearings, the Democrats sat on the knowledge of Blasey Ford's accusations for months without disclosing it to their Republican colleagues. If the Democrats were given advance notice, this would explain the haste with which they are pressing forward with the impeachment, denying the Republicans adequate time to examine and investigate the charges and the whistleblower.

The following statements have been used repeatedly by the Dems and the fake news media to characterize Trump's statements in the phone call:

Trump attempted to use the influence of the presidency to pressure a foreign power into manufacturing dirt about a political opponent.

Trump attempted to use the influence of the presidency to pressure a foreign power into meddling in the 2020 elections.

Such wording does not appear anywhere in the transcript and these characterizations of the transcript are entirely false and misleading, as misleading as the blatant mischaracterization of the call transcript that Adam Schiff delivered in front of the Judiciary Committee on Friday (see here at the 4:08 minute mark). Rather, what is clear from the transcript is:

Trump attempted to use the influence of the presidency to pressure a foreign power into assisting in an investigation aimed at discovering the truth about possible corrupt actions by a prominent American politician and his son.

In no place in the call does Trump suggest that the Ukrainians should manufacture falsehoods or seek to influence the outcome of the 2020 elections. Rather, Trump's goal is simply to obtain the cooperation of a foreign power in conducting an investigation designed to arrive at the truth. One of two things is true: either the Bidens behaved corruptly or they did not. If an investigation were to conclude that the Bidens behaved corruptly, that would be a good thing for the American people to find out and it would therefore have been good for Trump to push for such an investigation. Conversely, if the investigation were to conclude that there is no evidence of corrupt behavior, that would likewise be a good thing for the American people to learn and it would likewise have been good for Trump to push for such an investigation. We have just exited a two year period where the Mueller investigation, initiated on the flimsiest of pretexts, determined that there was no evidence of wrongdoing on the part of Trump. What do the Bidens have to hide? Why was it good for the Democrats to advocate for the Mueller investigation, but it was bad for Trump to advocate for a similar investigation of the Bidens? Do the Dems find it objectionable that it was foreign operatives from whom Trump was attempting to obtain information? But, weren't foreign operatives the source of the Steele dossier, which formed the basis of the Mueller investigation? How is it that the Steele dossier supplied reasonable grounds for investigation, but Giuliani's affidavits from Ukrainian officials do not? As the Dems are about to find out to their great chagrin is: what's good for the goose is good for the gander.

(Trump's advisor Steven Miller was attempting to make some of these very same points this morning on Fox News Sunday (see here at the 4 minute mark) when he was cut off and not allowed to finish by Chris Wallace.)

The whistleblower himself offers the very same mischaracterizations of the content of the call in the first paragraph of his report:

[T]he President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election.

This is not intelligence gathered by a CIA operative, but simply spin offered up by an obvious partisan. If this so-called intelligence officer offers personal opinion in place of intelligence and misrepresents the contents of the call in his opening paragraph, how much faith should we place in the rest of his report?

As for the question of whether there was a quid pro quo, explicit or implied, if there was a quid pro quo to obtain the honorable end of discovering the truth about possible corruption, then, this would seem to me to be an appropriate use of presidential power. American presidents are always using the power of the American presidency to obtain honorable ends. The most obvious example of a quid pro quo in this entire episode was when Vice President Biden withheld $1B in US aid to Ukraine until the Ukrainians ("Well, son of a bitch") sacked the prosecutor who was investigating Burisma, the company on which Biden's son was a board member. If Biden's action as a Vice President to withhold aid until he achieved his end was a legitimate quid pro quo deployed to pressure a foreign country into taking an action in the interest of the United States, then, certainly Trump's action as President to withhold aid until he achieved his end of persuading the Ukrainian president to help him determine the truth was appropriate.

The fact that Trump used Rudy Giuliani as an agent to interact with a foreign government was also perfectly appropriate. Being the personal lawyer of the POTUS, Giuliani is not exactly a private citizen. And, even if he is just a private citizen, past presidents have used private citizens as American envoys in a variety of situations and for a variety of reasons. Furthermore, given the fact that the deep state is so obviously infested with partisan agents, who was Trump supposed to trust? Finally, Rudy Giuliani is the perfect person to run such an investigation, being a former United States Associate Attorney General and United States Attorney for the Southern District of New York with vast experience in investigating and rooting out criminal corruption. (Warning to the Democrats: You have impugned Rudy's integrity; he is now fighting mad; you have awakened an old rattlesnake who is going to counter attack with every bit of legal experience he can muster.)

Likewise, the movement of the phone call transcript to a more secure server was also perfectly understandable, given that the transcripts of other Trump calls had been leaked to the press. How is a president supposed to conduct foreign policy if foreign leaders are concerned that everything they say may be leaked to the New York Times or Washington Post?

Finally, the attempt to portray Trump and Giuliani as criminal bosses or mafiosi is an ethnic smear against Giuliani and a racist insult to all Italian Americans.

In sum, the whistleblower's report is just the next chapter of the same playbook the Democrats trotted out in the Mueller report and the Kavanaugh hearings. It didn't work then and it won't work now. What is shocking is how the Democrats continue to shoot themselves in the foot. Not only will the Senate never convict Trump, but the Dems have, in effect, destroyed the candidacy of Joe Biden, their only possibly electable candidate, and thereby guaranteed Trump's reelection.

Lessons in Hispanic virtue signaling with accents

The Daily Kos reports about Julián Castro:

Julián Castro spells his name with the accent over the “a” in his name. ... That small punctuation mark in Castro’s name serves as a powerful example [read: virtue signal] of nonwhite visibility, particularly for Latinx people ... For the United States, those accents are historic, if only because they likely represent the first Spanish diacritical marks on the name of any serious Latino or non-Latino candidate in U.S. history. ... But for many of the more than 55 million Latinos in the United States, that accent means much more. It says, “es nuestro momento,” this is our moment and we will not be denied.

Castro has made the accent a prominent feature of his campaign logo.

In today's "woke" environment of identity politics, therefore, it's not enough just to be able to speak Spanish. Rather you need to have the correct diacriticals, too. This means that Beto O’Rourke probably should change his name to Betó O'Rourke, or, on the theory that two diacriticals are more "woke" than one, Betó O’Rourké. Cory Booker, on the other hand, appears to be shit out of luck with respect to his name, but perhaps he could go live in San José.

Julian Castro's proposal sounds great to his "woke" constituency and the liberal media, but is actually a non-sensical non-sequitur

2020 Democratic Presidential candidate Julián Castro propelled the issue of reparations for the descendants of slaves into the national debate in March when he asked “If, under the Constitution, we compensate people because we take their property, why wouldn’t you compensate people who actually were property?”

Castro seems to be referring to the power of eminent domain granted to the Federal government under the 5th Amendment, which reads:

... nor shall private property be taken for public use, without just compensation.

Castro's argument appeals to the "woke" constituency of the Democratic Party and to the liberal media, but is, of course, a complete non-sequitur. The only logical argument that can be made on the basis of the 5th Amendment is: “If, under the Constitution, we compensate people because we take their property, why wouldn’t we compensate the descendants of former slaveholders, whose property (slaves) was taken from them through the Emancipation Proclamation?” Unfortunately, actually being logically consistent generally means you end up sounding a lot less "woke."