RUNNING NOTES for DO ASK, DO TELL: WHEN
These are additional footnotes accumulated since submission for publication:
The book text is at
Regarding my point that personal responsibility should incorporate accountability to the varying needs of others, and the suggestion that gay marriage and adoption (and military service) would provide an opportunity for gays to achieve this publicly, the religious right has been running towards collectivism in what it thinks is the new threat of gay marriage, after Lawrence v. Texas on sodomy laws. Social conservatives seem to be taking the poisoned bait.
Here is what a wrote to a couple of friends very recently:
disturbs me the most about all this now is how the religious right is
backtracking to wanting to punish gays for, to put it bluntly, separating themselves from baby-making.
The whole basis of the "moral' theory" is that limiting sexuality to procreative contexts is what (in their minds) provides a "collective" way to make sure that children are raised (by committed mothers and fathers) and that other dependent family members (the eldery, especially) are cared for. Or to put it even more bluntly, to channel every adult into participating in a committed way in raising the next generation, as well as caring for the previous one. In their view, this one "universal truth" rule is supposed to generate a kind of social justice, although we all know that the experience of history is that it familism tends to disintegrate into tribalism. They may cite religious reasons, but it is the psychological thinking that matters. Many people have invested a great deal in the old way of thinking of things and don't want their props knocked away. Complemtarity (in hetereosexual marriage), according to writers like George Gilder, is what is supposed to brake reckless competition among individuals.
Yet, it is interesting also that the religious right is resorting to "collectivism" because rational arguments (personal responsibility in the usual sense) no longer work. Kennedy took all that away from them in
A few conservatives, in fact, complain that the "federal marriage amendment" is not enough. They want another amendment to allow sodomy laws and deny domestic partner benefits altogether. Pretty scary.
Wounded animals can be dangerous.
Remember, too, that one of the things about Paul Rosenfels's thinking at the Ninth Street Center in the 1970s and 80s was the idea that intimate relationships should be privatized and serve the the psychogical growh interests of the partners in a relationship. Yet Paul also believed that people seriously interested in pyschological growth should shun publicity and sequester themselves in relatively sheltered communities (like the
It is ironic that right now one of the reasons for my move back to DC is to be prepared for caring for my mother if that becomes necessary.
Inauguration Day. 2005: Here are a few quotes from the address by George W. Bush, that seem to fit the tone of the end of my Introduction “The Winding Road Toward Liberty””
“The survival of liberty in our land increasingly depends on the success of liberty in other lands.”
“There is only one force of history that can break the reign of hatred and resentment and expose the pretensions of tyrants and reward the hopes of the decent and tolerant. And that is the force of human freedom.”
“Make the choice to serve in a cause larger than your wants, larger than yourself, and in your days you will add not just to the wealth of our country but to its character.”
“In a world moving toward liberty, we are determined to show the meaning and promise of liberty.”
Inaugural Address for
Randy E. Barnett, in “Justice Kennedy’s Libertarian Revolution: Lawrence v. Texas,” Cato: Supreme Court Review 2002-2003 believes that Justice Kennedy makes a distinction between “fundamental rights” and “liberty interests.” “He spends all of his energies demonstrating that same-sex freedom is a legitimate aspect of liberty—unlike, for example, actions that violate the rights of others, which are not liberty, but license.”
Barnett then goes on to connect liberty interests to the Fourteenth Amendment, using an argument that due process of law includes judicial review, even at the federal level in reviewing state laws (under federalism). Laws which compromise :liberty interests” because non-specific moral concerns (related to religion or some peoples’ “family values”) might easily lapse over into majoritarian tyranny.
This needs to be put into perspective, however, with the notion that in a democracy various groups will affiliate to advance their economic, cultural and psychological interests, even if their proposals run the risks of compromising the liberty of some people. My own father used to say, “The majority has rights, too.”
President Franklin Roosevelt, in a speech in January 1941, postulated the Four Freedoms: (1) speech and expression (2) worship (3) freedom from want (4) freedom from fear, as fundamental rights. Freedom from “want” would be a social right, supported by legislated redistribution of wealth.
I have argued in all my books against letting the law go too far in trying to implement some definition of “morality” beyond harm to others. Yet it is clear that liberty, even understood as having a large component of self-direction in relation to others, must consider actions of people in a collective or downstream context as well as immediate “consequentialism.” Generally, an action is likely to be regarded as wrong if harm would come if too many people committed it (or omitted it) and if there is a natural inclination or incentive for people to perform it. In some cases, this rises to the level of statutory pr “positive law” prohibition, either criminal, civil or both. But we must be cautious about that. For example, consider spam. There is a temptation for people to profit quickly from loopholes in technology and law, at great expense to the Internet community as a whole. But the market (better filters to prevent fraudulent headers and the ability to charge the sender) are better solutions that criminalization. Some practices inspire social disapproval that is far from universal. Making a living from a pyramid scheme may seem manipulative or exploitative, but it might have a constructive purpose. Homosexuality has, until more recent decades, attracted condemnation that starts as religious but really seems to some people as a way to “cheat the system” by not procreating. Disapproval has receded as respect for private choice and individual expression increases. In general, however, we are migrating towards an awareness that common social goods (“family values”) may be well served by individualism when the culture (through the market more than through law) strengthens individual accountability (for past mistakes or performance) and authentication (through meeting the needs of others).
American law is quite energetic in regarding private property as a fundamental right (explicitly so in the 14th Amendment), and some commentators feel that the United States Constitution goes out of its way to protect pre-existing property rights from democratic “veto points.” See Christopher Jencks, “The Low-Wage Puzzle,” The American Prospect, Jan. 2004.
Some scholars think that the “lost” 13th Amendment, the “Titles of Nobility Amendment” from 1810 was really ratified; see http://www.newhousenews.com/archive/story1b070500.html (My mind wanders here, as I recall a friend’s letter in the days of the draft as mentioning my sense of “nobility” about military service.)
In the gay marriage debate, David Blankenhorn and others have suggested the idea of a “birthright” (to a mother and a father) as instrumental to social policy, like a social right, in the place of “equality.” Of course, then what next, the right to be in a home with a stay-at-home mom? See the gay marriage survey.
Free speech, as often noted, is less strongly protected even in western
countries than the
One important other point to me: one has a fundamental right to do something (like protest) because it is a fundamental right, not just because one is oppressed. Of course, equal protection complicates this concept (in both directions). But, again, fundamental rights refer mainly to protection from government. In a broader sense, fundamental rights would seem to incorporate the right to be free from harm by others (and that could be direct attack or unfair treatment or discrimination). This is possible only in a society ruled by law, so the law has to balance the different claims from individuals and entities at all kinds of subtle levels. That means that there can be rules about what is fair for one person to do on his own, even when he or she feels some kind of insult or oppression.
Here is a good question: Is “self-promotion” a fundamental right? Does that follow from the “life, liberty and property” clause of the 14th Amendment? Does it have to be balanced by some kind of staged accountability to others?
When I mention Kaplan’s “tradition” argument with respect to segregation, the evolution is Plessy v. Ferguson (1896) evolving to Brown v. Board of Education (1954). That is, “separate but equal” might have come to be perceived as less tenable for children in a school system than in other public accommodations (according to the thinking in the 1950s). See my oldcourt link.
One should note that “freedom of the press” may be a little more specific
than “freedom of speech” in the First Amendment. Reporters with press
credentials can gain admission to secure areas and events that a self-publisher
cannot. There is legal controversy over the right of a reporter to keep his
sources confidential in the case of compelling state interest. A Time
magazine reporter (Matthew Cooper) has been held in contempt for refusing to
testify in a DOJ probe of the leak of a
Steven Greenhut supplies an op-ed “Property rights
aren’t important only to developers, big business” in the
Notes are at http://www.doaskdotell.com/content/trism.htm
This would be the appropriate place to mention HR 4777, a
bill to ban all forms of online gambling in the
This bill (The Internet Gambling Enforcement Act, which had been connected
to a homeland security ports security bill) was singed in to law on
Jacob Sullum, of the Washington Times (“Online
Jim Holt has an essay in The New York Times Magazine, p. 15,
In its closing days, the Bush administration Treasury Department put into
effect rules to ban financial institutions from processing Internet gambling.
The rules are written so badly that they could affect all gambling. Even online
poker is affected (which is a game of skill). The rules take effect
In January 2003, Rep. Charles Rangel (D-NY) introduced
legislation in Congress to restore the draft with mandatory military service
for both men and women. He says that his motive is to make average citizens
aware of the potential sacrifice of going to war with
Moskos has been particularly articulate about the observation that in a volunteer force a disproportionate percentage of servicemembers come from poorer backgrounds (even with better pay today), and one of the arguments against the gay ban has been that military service is often a good entry point into later civilian careers for persons with disadvantaged backgrounds. The “benefit” of military service in forcing persons of different backgrounds to mix socially is well documented.
Contacts on the CSSMM statement
Aaron Belkin, Director
Center for the Study of Sexual Minorities in the Military University of
California, Santa Barbara
http://www.gaymilitary.ucsb.edu/ is the website for CSSMM
c-moskos AaTt nwu.edu
In conjunction with the notes for the next chapter, some
jobs of a “national service” or “community service” nature can include
unexpected incidents of forced intimacy on the job. For example, civilian
engineers sometimes work and live on Navy ships, and some civilian law
enforcement training programs (like the
One could speculate about reality television shows, also. (For example, in the PBS Series “Colonial House” a participant “comes out” but he is accepted anyway, apparently.) Private television production companies could set their own policies on this matter in a libertarian world, but they would need to make their policies clear in advance to applicants.
Log Cabin Republicans is filing a new lawsuit to overturn “don’t ask don’t tell” in late 2004, based on Lawrence v. Texas. It is not clear if the courts will allow LCR standing to sue. Here is the press release: http://www.logcabin.org/logcabin/press_101204.html. But let us expand here. Remember, In August, 2004, the Court of Military Appeals declined to take it upon itself to declare Article 125 unconstitutional, notwithstanding Lawrence v. Texas. The case is United States v. Marcum. http://www.doaskdotell.com/content/marcum.pdf. But suppose Article 125 were overturned. That does not automatically mean that DADT falls because Congress and the Executive have so much explicit constitutionally-mandated discretion to run the military. However, we are seeing a conscious efforts by the courts to balance individual liberties, even perhaps for servicemembers, with national security and other compelling state interests. A good example is the Supreme Court’s holding on keeping some of the constitutional rights for detainees in the war on terror. Certainly Lawrence v. Texas (especially Kennedy’s Opinion) adds ammunition. I argued in Chapter 4 of my first book that the biggest problem was that, in essence, the presumption clause based on happenstance statements was overbroad. For example, the provision E-2 “that the member has stated that he or she is a homosexual or bisexual, or words to that effect,” could have be revised with an add-on like “(stated) for purposes or self-promotion or in a forum opening available to the public, or to specifically to other constituents of that member’s unit or command.” (See Appendix 10.) Many people would not like this, either, but it would be much harder for commanders to abuse than the current law. That can be pursued well here.
Note: The United States Military Code of Conduct, Article I, states: "I am an American, fighting in the forces which guard my country and our way of life. I am prepared to give my life in their defense."
From a 12/2006 press release from SLDN about another challenge to DADT:
“Among the plaintiffs named in today’s lawsuit are:
• Former Navy Lieutenant Jenny Kopfstein….
• Former Army Sergeant First Class Stacy Vasquez…
• Former Air Force Captain Monica Hill….
• Former Air Force Sergeant David Hall….
Dr. Hill’s case is particularly galling because it is complicated by the need for her to care for a partner dying of cancer. Nevertheless, the Air Force pursued her with recoupment orders.
The plaintiffs are represented by SLDN and the law firm of Wilmer Cutler Pickering Hale and Dorr LLP. Copies of today’s lawsuit, biographical information on each of the plaintiffs and related information on “Don’t Ask, Don’t Tell” are available online at http://www.sldn.org/.” The press release (with much more detailed information about the service records of the individual plaintiffs) is http://www.sldn.org/templates/press/record.html?record=1718
A PDF document of the complaint is at http://www.sldn.org/binary-data/SLDN_ARTICLES/pdf_file/1718.pdf
The U. S. Army Court of Criminal Appeals overturned the
guilty plea of a soldier Kenneth Bullock for heterosexual oral sex (sodomy, a
violation of UCMJ 125), with much of its reasoning based on Lawrence v Texas.
This ruling may well help in constructing more legal precedential arguments
against DADT, as above. See http://www.sldn.org/templates/press/record.html?record=1758
or Michael Dobbs, “Some Believe Ruling Undercuts Don’t Ask,”
Chapter 5 :
(P 103) Recently, however, both the
In the summer of 2003, the
A member of the traveling public, if randomly screened in an
intimate manner without probable cause, might have a legal claim to a
right of privacy, not to be screened (in an intimate matter) by a member of the
opposite sex or by a member of the same sex who publicly proclaimed homosexual
orientation. (This happened to me once,
screening by a female, in early 2002 before
In November 2006, a
WUSA Channel 9 in
Regarding the footnotes, persons with previous work experience
in security screening or weapons or explosives detection are more likely to
pass the initial
John M. Bridgeland summarized
voluntary national service programs with a column. “Building a Culture of
Service: Americans respond to help the nation” in the
(P 111) The family values problem is well explored by the
article “Childless by Choice” by Leslie Fulbright of the Seattle Times (
“Virginia Rutter, a sociologist at
“In contrast, many No Kidding! Members—often called selfish—see child-bearing as narcissistic and don’t understand why society equates reproduction with responsibility.”
I would add here that you could expand the idea of family obligation to eldercare and even community service, and then propose that everyone should be expected to share in this. For gay men and lesbians this begs the question. Gay marriage and parenting is resisted partly on rather circular arguments. But there is also a desire to relegate homosexuals as second-class citizens, by making sure that they cannot carry out a required responsibility, or by assigning them to specific roles like staying home to take custodial care of aging parents, as used to be expected in past generations.
Conservatism also comes into play in discussing the handling
of the new SARS epidemic. Conservatives and libertarians both are properly
skeptical of giving local health officials quarantining and isolation powers,
whereas more authoritarian governments like
One of my friends has come up with the idea that the only valid way to demonstrate the ability love and take responsibility for another person is a romantic commitment, independent of all external “adaptive” (success, career, etc.) circumstances. Then it makes sense that a failure in romance would hurt a person for a long time.
As for “upward affiliation” (a term that originated in the 1980s with George Gilder, Men and Marriage), one could also say that when a man marries and procreates children, he often wants at least one son to be a “better” man than him. That is a form of heterosexual upward affiliation. However, one takes chances with nature, genetics and biology when one has kids. That is a major point.
(Chap 8) Most companies and recruiting firms have job application web sites, but using these seems to result in few placements. The one aggregate jobs site that seems to work reasonably well for attracting IT recruiters is http://www.dice.com/.. But some recruiters, seeing their commission structure as a numbers game, have been more concerned with rapid submission of candidates than with careful screening, and in some cases multiple unauthorized submissions of a candidate to a job have been a problem, particularly to clients that do not want to be identified. Will some recruiting companies build a new paradigm based on the idea of pre-screening candidates for commitment to I.T. and not accepting those who have been out of work for a long time and not consciously tried to keep themselves trained? If so, people could find that recessions weed them out of the market altogether.
Another observation: many cultures base salutations based upon what the (usually, male) person does for a profession. In the west, this is mostly “Dr.” “Professor” etc., but sometimes in other cultures many other professions (“Architect”) are included. The idea that a person is much more than what he does for a “profession” is rather modern in liberal society.
An article in The New York Times,
Another wrinkle of this problem is that when former generalists in “business systems” try to get lower paying jobs, they can run into problems with the lack of regimented skill. At one of my workplaces blindfold keyboard proficiency training was offered, but also laughed at back in the mid 1990s.
Some I.T. professionals who are doing well in the job market today were running their own web servers or even web hosting companies on the Internet as early as the mid 1990s, teaching themselves everything about administration and foiling hacker attacks and rebuilding machines, while more mainstream business systems applications programmers in the mainframe world were preparing for Y2K (the most ambitious, curious and competitive programmers could do both).
Recruiters now tell me that, especially in the mainframe market, the trend of corporations to outsource (though watch the language: “offshoring” is a subset of “outsourcing”) jobs to overseas areas with lower wages and also to hire resident legal aliens is reducing job opportunities considerably. Some global companies can claim that overseas workers are their own employees and it is sometimes cheaper to bring them here. This gets back to the political argument about global competition and the idea that Americans must compete with other parts of the world where skills and work ethic are high in comparison to living standards. Indeed, the free market is forcing a cultural revolution! Added to this is the fact that IT people, seeing themselves as rugged individualists, have resisted unionizing and organizing. So you can’t have something for nothing and you can’t have it both ways!
For more on offshoring visit the Information Technology Association of America,
especially the testimony of Harris N. Miller before the House of Representatives,
“The Offshoring of High Skilled Jobs,”
I have a more current discussion of outsourcing (March 2004) at http://www.doaskdotell.com/outsourc.htm
Clay Risen weighs in with a somewhat favorable view of offshoring in “Missed Target: Is Outsourcing Really So
Bad?” in The New Republic,
Another problem has been multiple submissions of resumes from the same candidate from different consulting firms, without checking for duplication. Candidates should pick the consulting firm to represent them carefully, as some will present them much more professionally than others, and many clients (such as states running MMIS programs) will consider only the first resume they receive from any given candidate. Obviously there are ethical issues here. Visit The Independent Computer Consultants Association, especially http://www.icca.org/ethics.asp
I weigh in all this some more at a “personal responsibility essay.”
Peter Coffee contributed a tongue-lashing editorial to the
I devoted a major part of my 1997 book to the workplace, so how could I have been so flattened myself? In the 80s and 90s, a big value was placed on programmers who could keep a particular application running reliably (with on-call duties), as opposed to middle managers. In the climate of the early 2000’s, much of this kind of work could be outsourced or offshored. Much more emphasis was placed in the market on gaining expertise in specific skills. A IT professional or student would have to plan his career and training carefully to have expertise in skills requirements. It is possible to keep earning a living with legacy skills if one is really good enough and can move around a lot. The other big factor is that companies or clients often have very specific skills requirements as a defense against discrimination claims. Inadvertently, this strategy may lead to de facto age discrimination, however. One possible strategy for the “marginalized” professional is to develop a specific product or service himself.
One might say, that when that “please log off” message
appeared on my work station on
Chapter 9, p. 142. In “Dissent: Programmer Says U.S.
Cut Funding after Comments” by Jennifer Lee, The New York Times, p. A19,
There is another risk to online giveaway of content. See
Glenn Fleishmann, “Blindsided by Bandwidth Fees, Online Barkers Think Twice” in
The New York Times,
There has been a lot opposition by the National Writer’s
And this brings back the question of professionalism. In an Internet age, professionalism tends to demand that a “professional” person be able to sell another party’s narrow point-of-view in an adversarial manner (as opposed to selling the writer’s own). Making a living this way runs the risk of detracting from the writer’s credibility when he sells his own work, and tends to narrow the reach of debate.
The Authors’ Guild does have a group health insurance policy for its members, according to a communication from NWU. The domain is authorsguild.org
Amazon.com has recently announced a plan to build a
searchable online book database, mainly of nonfiction from a number of
publishers. The facility would be similar to what I offer of my own books on
this site. (See story by David D. Kirkpatrick, New York Times,
Keep in mind during all of these musings about where a self-publisher “deserves” to be listened to or should be accountable for some kind of financial result, that self-publishing involves the deployment of a property right, as opposed to a job which is based on the property right of another party.
A state representative in South Carolina (as of Nov. 2004) has introduced legislation forbidding any school or public libraries in the state from purchasing any books that promote homosexuality or present it favorably. I guess that wouldn’t be good for me.
Another potentiality comes to mind with self-publishing of
controversial materials on the web. If I were to go to a strict Muslim country
This whole Rushdie observation brings to mind another issue, property insurance, hate crimes and terrorism. Most property policies have exclusions for terrorism because it is actuarially so difficult to assess. There have been problems with socially unpopular groups (especially abortion clinics) losing insurance after “hate crime” style attacks. Some states have tried to address these problems. See http://www.womensenews.org/article.cfm/dyn/aid/2677/context/archive , or, regarding religious-based hatred, http://www.jewishinseattle.org/JF/About/Government/ActionAlert_2_18.asp . I am not aware that this has been a big problem for gay bars in recent years. Generally, libertarians oppose specific “hate crimes” legislation because it implies special treatment for some victims or implies that a crime is more or less heinous because of the identity of the victim, and because it seems intellectually unprincipled. With the issue of insurability, there could some day be a need for legislative protection. I would be concerned about the possibility of “unpopular” “high profile” people as tenants or homeowners being perceived as attracting unacceptable risk, but this has apparently not so far been much of a problem in the United States (it may have been in Europe and the UK).
Another little explored wrinkle in the self-publishing paradigm could be that, once a person puts out his own work and makes it “official,” zoning officials, in at least a few random jurisdictions, might want to force him or her to use commercial space. See http://www.doaskdotell.com/content/smallbiz.htm Publicity that does not generate revenue could turn out to be an Achilles Heel.
The First Amendment lists freedom of speech and freedom of the press as separate original (or fundamental) rights. It is not necessarily true that the freedom to speak about a matter to another person gives the right to make it totally “public.” The original legal definition of “publication” is the rendering of a statement to at least one other competent person who understands it; it is the “press” that makes the information publicly available for anyone to see. There is a public perception that a press needs to have professional journalistic credentials. That is not always the case. Martin Luther was not a member of the “press” and neither was Jesus! Yet they both made their ideas very public (in a meaningful sense, they were both “self publishers”). There is a practical problem that unsupervised self-publication of personal materials, even those belonging to the author and not confidential in the traditional legal sense, can affect others unintentionally in an age of search engines (“Google”), enemies and stalkers. We sometimes call this the “myspace.com problem,” named after the social networking site established around 2003. Will the right to “publish” (that is, join the “press”) eventually require a greater legal accountability to others (possibly blood family most of all)? That is, the right to "pressify" could depend upon one's circumstances rather than (or as well as) on the content of what is "published." It’s conceivable that the law could move in that direction. We don’t really know yet. There is more about the myspace problem at http://www.doaskdotell.com/content/blog.htm and http://www.doaskdotell.com/controv/professionalism.htm
I supposed that one could draw a whimsical analogy between
It’s also important that careless and unsupervised
“self-promotion” occurs in trade publishing. Smokinggun.com revealed the
exaggerations of James Frey’s “A Million Little Pieces,” in which the author
fabricated sensational details in a memoir and perhaps incriminated himself
falsely in order to attract attention and sell print. He even conned Oprah, who
confronted him on a rematch on
I recall that when I accidentally showed up on television in
Lee Park in
Self-publishing about controversy today implies an attitude of “globalism” that somewhat countermands family values and is a new kind of individualism.
Here are notes on another related case:
The case is United States v. American Library Association, Inc., a challenge to the Library Services and Technology Act (LSTA) and CIPA, the Children’s Internet Protection Act.
The references is http://www.cnn.com/2003/LAW/06/23/scotus.library.ap/index.html
The findlaw reference for the court opinion is http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-361
Here is a good reference on the 2002 ruling from the Supreme Court that CPPA
(the Child Pornography Prevention Act) is unconstitutional: http://www.gigalaw.com/articles/2002-all/landau-2002-07-all.html Or http://archives.cnn.com/2002/LAW/04/16/scotus.virtual.child.porn/ Also http://archives.cnn.com/2002/LAW/04/16/scotus.virtual.child.porn/ or http://www.law.indiana.edu/fclj/pubs/v55/no1/mota.pdf or http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=00-795
. The law may be replaced by H.R. 4623
The Child Obscenity and Pornography Prevention Act, filed
On page 169, I’m not sure that the book Lolita would be illegal since text
child pornography is generally legal in the
The First Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”