Supreme Court and Political Parties

Supreme Court justices are supposed to make objective legal rulings that are independent of political considerations. This is one of the reasons for giving lifetime appointments to the justices and preventing them from having to run for election.

That’s the way it’s supposed to be. But clearly it doesn’t work out that way. On most close decisions for many years, the justices voted along party lines. Although there were several exceptions in the 2018 term in which each justice voted across party lines, so it shows that this can happen, these cases are still a minority.

The most notorious case was Bush v. Gore in 2000, in which 5 Republican-appointed justices voted in favor of Bush, and 4 Democrat-appointed justices voted in favor of Gore. In the current panel of justices, three worked on that case in favor of Bush. 

Clearly, the Supreme Court is not removed from politics. Justices strongly tend to vote with the other members of their party.  This is confirmed by the extraordinary lengths that Republicans in the Senate took to appoint justices of their party. The Republicans refused to consider a moderate Democratic nominee in 2016, but then this year bent over backwards to quickly appoint a Republican, Amy Coney Barrett.

What is the solution to the problem? The justices are good lawyers and capable of reasoned arguments.  They are clearly capable of voting across party lines, but they usually don't.  The common party-line votes makes the Court look openly partisan and without objectivity. 

There are some solutions that could require at least one of the justices to agree across their party lines. One is to have an even number of justices with an equal number from each party. A party line vote will be a tie, and it doesn't result in a binding decision. If the justices feel that a ruling is important, they will have to convince someone from the other party to agree with them. If the decision is clearly partisan, and no one will break the tie, then there won’t be a ruling, and the Court won’t be involved.

Other solutions have been suggested. The approach of “court packing,” adding more members to the court, is a bad solution because it invites retaliation from the other party. Also, it is clearly a partisan solution, because it’s a competition to get more justices of the party in power.

Another solution is term limits for justices. It has been suggested that justices have terms of 18 years, so two justices would be replaced every 4-year presidential term. This would solve the issue of justices being nominated at younger and younger ages so they can serve longer. It will allow justices to be replaced periodically so they can stay current with public opinion, rather than staying long past their time. It will give a prospect for getting rid of bad, unproductive justices. But as long as the number of justices is nine, there will still be competition for the majority.

Another simpler solution that doesn’t require congressional action is for the president to refrain from nominating a justice when the next one retires, dropping the number to eight. At present, if the replacement is for a Republican, it would still leave a 5 to 3 Republican majority. It would take the loss of two Republicans to get a 4 to 4 balanced court. Also, this approach has the disadvantage that a new president could immediately fill the seat extra seat to go back to nine. An action of Congress would be needed to fix the number of seats at 8 or 10 (if it is constitutional). But at least it would restore the reputation of the Supreme Court as being impartial and nonpartisan.

Methodological empiricism, not methodological naturalism

By Mathew Goldstein

The theoretical physicist Sean Carroll recorded a series of 24 videos titled “The Biggest Ideas in the Universe!”  Following this paragraph is a transcript of the methodological naturalism topic excerpted from video #24 “Science”, which addresses philosophy of science issues (it is about 2 hours). Atheists in particular can (and should) reject the misconception that science is limited to, and constrained by, methodological naturalism. This common misconception is then utilized by theists and others to mischaracterize science as being intrinsically biased against supernaturalism.

You try to invent a theory of science, and someone is doing science, but it doesn’t count according to your criteria. What you should say in that case is that “oh, my criteria of what is science was not quit right, I should update it”. But in fact what people say all the time is “that is not science, what you are doing over there’s not science. I know you think it is, but it’s not because I figured out what science is and it’s not that.” I think, as much as I am a fan of philosophy in general, this is something that happens at the boundary of philosophy and science itself. Either scientists, or philosophers, try to come up with the correct, we are done with it, philosophy of science. And rather than updating that philosophy when they encounter something that they did not understand before, they ipso facto exclude it from counting as science.

I think that's a mistake. So let me give you a couple of examples of what I mean. One is, maybe you're too young to know much about this, but there's this idea called methodological naturalism. It's a mouthful.

This again is a holdover from the days of fighting against creationism in public schools which was a big thing in the United States of America in the 80s 90s into the 2000s. Okay, so the idea of methodological naturalism it's different than naturalism. So, what naturalism is is the idea that there's only one universe, one reality, the natural world, the world that we discover by science. That's what naturalism says, and you might call that metaphysical naturalism or ontological naturalism. It’s a statement about the nature of reality. Reality is fully described by the natural world, there's no separate supernatural world, for example.  Methodological naturalism was the idea that was completely invented by people who are trying to fight against creationism. So with the best intentions, they said science proceeds under the assumptions of methodological naturalism, which is the assumption, ahead of time, that when we go to explain some observations, we do so in a naturalistic way. In other words, that the kinds of explanations that science can come up with are just in principle, just a priori, just because we said so, naturalistic explanations. So the idea of methodological naturalism was even if the true explanation for a phenomenon was supernatural, science would never allow you to contemplate that. And the reason why they came up with this cockamamie scheme was they wanted to be able to say, intelligent design should not be taught in public schools. 

So it's an entirely political motive, not a philosophical or scientific one. They wanted to say that this attempt to bring religion to schools, which is what it was, like intelligent design, was clearly an attempt to smuggle religion into public school teaching, and they wanted to argue against it by saying, well we can't allow supernatural explanations in science. But that's just wrong, like nothing that we said up here had anything to do with what kinds of explanations are allowed. We come up with the best explanations, that's what abduction said. Whatever explanation fits the data the best is the one that we like. If you could convince me that there is some data for which the best explanation is to assume that naturalism is wrong, then any good scientist will say, therefore naturalism is probably wrong. If an angel comes down, you know, with a flaming sword and wings and so forth, and says “All right, I'm going to perform some miracles for you now”, and this happens regularly, and it can't be explained by illusions or trickery or laws of physics or anything like that. Or if, you know, all sorts of things happen simultaneously throughout the world to bring true some predictions that were made by some religious tradition. A good scientist would say well, we should at least consider those explanations. 

So the reason why you should keep intelligent design out of schools is not because it's not science. It's because it's bad science, it's because they're not explaining anything better than Darwinian natural selection ever would have explained. But that argument seems a little bit more loosey goosey, like you're not saying that something is cut and dried disallowed. You’re saying it's not very good and then people can make the counter argument against that. What I'm here to say is yes, that is correct. You need to bite the bullet and make that hard argument, make the case that this is bad science and should not be taught because it is clearly just an attempt to smuggle religion into your schools. You should not invent weird philosophical principles after the fact to justify your choice. You should be honest about how science works. 

Science is not methodologically natural, it is methodological empiricism. In other words, the philosophical presupposition of science is not what kinds of explanations we will allow, but how we decide which explanations are correct. Namely, we do not appeal to revelation, we appeal to the data, to looking at the world. We say which of our explanations is the best fit to the empirical information we get about the world, and we could always be wrong, and we could always try to be better.

Disbarred lawyer Michael Cohen talking about president Donald Trump

By Mathew Goldstein

This particular advertisement video, while it is partisan politics, is also independently newsworthy. With this justification of its being unusually newsworthy I am placing it here. It is the first of a set of such videos from American Bridge 21st Century “the largest research, video tracking, and rapid response organization in Democratic politics”. What makes this video more newsworthy than the usual presidential campaign video is that the person talking about (criticizing) President Donald Trump for this set of videos is his former personal lawyer, the disbarred Michael Cohen currently serving a three year sentence under home confinement.

https://youtu.be/_20vrE95OF0

The ethics of brown eyes

By Mathew Goldstein

To understand that ethics is built on knowledge consider a false ethic, such as all people with brown eyes should be enslaved. What false claim to knowledge would justify that false ethic? One possibility would be the claim that there is an omniscient creator deity who has told us that the divinely favored blue eyed people are rewarded with everlasting life in heaven provided that they enslave all divinely disfavored brown eyed people. 

People are reluctant to acknowledge that if the mistaken claims of knowledge endorsed and promoted by ISIS are correct than their practice of beheading opponents, kidnapping women as sex slaves, killing homosexuals, etc. would arguably be ethical. Creator deities who are to be worshipped and obeyed can be cited to justify otherwise unjustifiable ethics. Not all mistaken beliefs result in equally unethical behaviors. Falsehoods masquerading as knowledge can correspond to mostly good ethics, but even then valuing falsehoods in the name of ethics tends to either hold us back from accepting an increase in knowledge or render the ethics fragile when confronted by an clashing increase in knowledge.

Knowledge precedes ethics. Knowledge is built with an indifferent lack of bias. To get from knowledge to ethics we actively introduce a bias to favor the outcomes that are better for humanity over alternative outcomes that are worse for humanity. What should be depends in part on what is, and what should be also depends in part on viable could be alternatives, which also depends on what is. To be meaningful ethics must be non-fictional. Fictional ethics, ignorant ethics, are a self-contradiction.

Answers to how the universe works answers undergird ethics. What alternative outcomes are better for humanity? How can we most quickly obtain and implement effective better outcomes? What can we learn about a problem with negative impacts for humanity that can be applied to countering the problem? Chronologically, answers to how the universe works question come first and provide us with the understanding we need to more effectively bias the outcomes in favor of humanity. Some religions appear to have a tendency to get this sequence backwards. They claim that there are some assertions about the how universe operates that need to be true to justify ethics and therefore those assertions are true. That is wrong, there is no such “therefore”.

It is common for people to try to argue otherwise. A common saying is that what should be cannot be derived from what is. What does it mean to “derive from” and in what sense is one derived from the other? Clearly, knowledge and ethics are different, they are not synonyms. Yet they are dependent on each other. We start with knowledge and apply to it the goal of promoting general human welfare, opposing the factual indifference of the universe, to promote the general benefit of humanity, in pursuit of obtaining the should be of ethics.

Less reliance on faith is better

By Mathew Goldstein

Barney Zwartz is a senior fellow of the Centre for Public Christianity. The Centre for Public Christianity is an Australian not-for-profit media company, established in 2007, that supplies mainstream media (such as The Age, an Australian newspaper) and the general public with material about the relevance of Christianity in the 21st century. It seeks to represent historic Christianity as defined by the Nicene Creed. This is a response to his recent article Faith is key to our lives, even for atheists.

However obvious this may be, the following observation still needs to be reiterated because many defenders of religion lean heavily on this fact in their arguments, as illustrated by the aforementioned article: We are not all present and all knowing and therefore our ability to utilize empirical evidence to reliably identify what is true about the universe functions is not, and cannot be, 100% complete, accurate, guaranteed, instantaneous, certain, etc. What is maybe a little less obvious, but nevertheless equally important, is despite all of empiricism’s imperfections and limitations, it does not follow that we know nothing at all or that there are alternative, equally valid, or better, ways of obtaining such knowledge. Therefore, while we are all frequently making decisions on incomplete information, citing this fact to argue that we all are reliant on faith is not a good argument against our responsibilities to seek the relevant empirical evidence and try to reach our conclusions regarding how the universe operates on a best fit with the available empirical evidence basis.

The following statement from this article is one good example of this tactic of over-leveraging the imperfections of empiricism to defend religious belief: “we only know something as simple as how old we are or our birthday because our parents told us (or the Registry of Births). That this is accurate we take on faith.” No, there is more than faith behind confidence in birthdays. First of all, we have good reason to think our birth certificates are accurate because there is generally no motive for the direct eyewitness mother and hospital, or for the government, to falsify the birth date. Furthermore, we have first hand knowledge about how people change over time and that the changes proceed more quickly when we young. So we have ongoing empirical evidence from our self-experienced childhood, along with the childhood of others, to determine if the birth certificate birth date is at least reasonable. Our date of birth could not have been a decade or more earlier or later and still match our self-experience of our life. Plus there are other supporting documentation regarding vaccinations, baby food purchases, school attendance, other eyewitnesses to your early childhood, and the like.

Another example from this article: “The same principle applies to the highest reaches of scientific endeavour. Scientists rely on the testimony of other scientists because it is generally either a waste of time or impossible to replicate their research. And by and large this works, even when sometimes it later emerges that research went astray.“ This is mistaken.  It is generally not “a waste of time or impossible” to replicate research. On the contrary, replication with the same result strengthens our confidence in that result while replication that fails to confirm the result weakens or undermines our confidence in that result.  Replication requires effort, time, and money, all of which tend to be in short supply, which imposes practical constraints, but that is generally true to varying degrees for all research regardless of whether or not that research is a replication of earlier research.

Another example from this article: “History, psychology and all manner of disciplines rely on other people’s testimony, acceptance of which is largely a matter of faith. I cannot know by experience or perception that Napoleon lived, or any other historical figure whose existence it makes no sense to doubt.“ OK, and why does it “make no sense to doubt” various “historical figures” such as Napoleon? Although this question is of central relevance for this topic Mr. Zwartz ignores it, probably because the answer is incompatible with his goal of arguing for religious belief by arguing against empiricism. The answer is that we have a good amount and variety of good quality empirical evidence from multiple independent sources for some historical figures, particularly those historical figures who are more recent and whose actions impacted many other people and events. Empirical evidence, despite its imperfections, can be powerful, so powerful that it becomes unreasonable to reject conclusions that the available empirical evidence favors even when the evidence consists entirely of artifacts from the past.

Mr. Zwartz then identifies one of the conclusions he is pursuing: “we are wrong to exclude testimony from knowledge in any ordinary, useful sense. In other words, faith.“ This is a mistaken over-generalization. We absolutely should be skeptical of the integrity of testimony that is in conflict with our empirically based knowledge of how the universe operates. Let’s say someone gives testimony that they (singular “they” for gender neutrality) eye-witnessed a donkey or a snake briefly talking to them in the same language that they speak, providing them with an instruction to not strike the donkey or not eat tree fruit. Is Mr. Zwartz claiming that such testimony qualifies as knowledge in “any ordinary, useful, sense”? 

He then anticipates the above objection and responds as follows: “many religious truth claims are in a different and more complex category: they can seem contrary to reason and experience. But equal questions apply for those who believe nothing exists other than what science can measure, for they cannot even explain human consciousness, let alone spiritual experience.“ Not explaining consciousness is different from denying it. Our modern knowledge indicates that our day to day reasoning and experiences are too limited to be a proper basis for understanding how the universe at large operates and our intuitions, rooted in on our limited experiences, tend to conflict with how the universe at large operates. This is one of the reasons it can become necessary to seek out and follow the empirical evidence in a rigorous way. If human consciousness will be explained in the future (and all we can do is wait, however long it takes, for explanations that we currently lack) then the probability is high that the explanation will be obtained the way all of the other explanations from biology humanity has obtained: Measures of biological activity by scientists with the assistance of human engineered instruments. Consciousness is manifested strictly as a first person self-experience which makes it difficult to explain, but even without explanation its likely presence or absence can be inferred from observable behaviors. Human created religions fail to provide a reliable way to conclude anything about how the universe operates, let alone overcome this first person difficulty with regard to explaining consciousness. Furthermore, the Nicene Creed is not explaining consciousness and therefore is not properly justified as being true on the grounds that it provides an explanation for consciousness.

Lastly, Mr. Zwartz asserts: “there is no doubt that the eyewitnesses to the resurrection believed it, because many of them later died for that belief.“ Before such an argument can be taken seriously we need to establish that there were such eyewitnesses and that we have such eyewitness testimony. Despite innumerable efforts and assertions otherwise no one has ever succeeded in establishing that there were any resurrection eyewitnesses because the need for empirical evidence imposes constraints that the most sophisticated cleverness cannot defeat. The best candidate for the eyewitness role is Paul. It can be determined from his writings that Paul is a poor quality eyewitness. He talked about much more than he eyewitnessed. Paul comes across as a confused and distraught person who self-promoted his poorly anchored fictional thoughts, imaginations, and dreams to the status of facts. Paul is an archetype of a person who is unable and/or unwilling to reach conclusions about how the universe operates on a best fit with empirical evidence basis. The resurrection of Jesus story lacks the solid supporting evidence that we have for the historical reality of Napoleon or of Paul. The far too many people who claim otherwise are arguing against the evidence despite their self-assertions otherwise.

No legal privilege to spread COVID-19

By Mathew Goldstein

Religious freedom is one of our first amendment legal principles. There are multiple different legal principles and they sometimes conflict with each other, which is why they cannot be absolute. Religious freedom is not a shield that protects criminal activity or authorizes harming people. Claiming that God wants you to seize someone’s property is not a valid defense for theft. 

Government stay at home policies that restrict the size of public gatherings, or require wearing face masks, or require maintaining some distance from other people, to protect the health and economic welfare of the local community from a contagious disease are not unconstitutional or tyrannical because they interfere with religious exercise. Many religious worship congregations acknowledge their communal responsibilities and some have moved religious services online. But too many of the governments within the United States have risked the health and economic welfare of their citizens by carving out exemptions for religious institutions so that they can continue to operate while similarly situated non-religious institutions cannot.

Maryland is an example of this. Governor Hogan has declared that “Social, community, recreational, leisure, and sporting gatherings and events of more than 10 people (“large gatherings and events”) are hereby prohibited at all locations and venues”. But he then singled out religious facilities for an exemption (as of May 15), declaring that “ churches, synagogues, mosques, temples, and other similar religious facilities of any faith ... may open to the general public“. Prince George’s County, in contrast, is not discriminating between religious and non-religious facilities. The state and county wording are identical except that the state omits “religious” from its list of gatherings that are limited to ten people. County Executive Angela Alsobrooks declared (as of May 14) “... social, community, spiritual, religious, recreational, leisure, and sporting gatherings and events ("large gatherings and events") of more than 10 people are hereby prohibited at all locations and venues ...”.

Laws designed to protect public health and safety are constitutional when they are applied neutrally, across the board, without favoritism. Thus, if plays, concerts, sporting events, lectures, etc., sponsored by non-religious non-profits are shut down, then religious services may, and should, also be shutdown. A virus doesn’t discriminate between someone reciting a prayer or giving a lecture. Government officials should respond to a non-discriminatory virus with a non-discriminatory policy that similarly restricts all non-essential gatherings, religious and non-religious, or none.

No one likes the current situation. We all want to return as soon as possible to a normal life. Our return to a normal life is being made more difficult by some religious institutions that are resisting bans on large gatherings and by some elected officials who are creating government policies allowIng large gatherings for religious activities that they are unwilling to grant for non-religious activities.

Free exercise offers religious practices additional protection against being victims of government targeting. Judges evaluate whether government actions that interfere with religious practice are doing so incidentally within a context of conducting a properly justified government function, or because of popular or governmental resentments or prejudice against the inconvenienced religion(s). Free exercise should not automatically grant all religious practices an exemption from government policy interference.

Another weakness with these policies is that they tend to be incomplete, specifying only the conditions triggering the phase out of the precautionary policies without specifying the triggering conditions for re-applying the precautionary policies. Contagious diseases exhibit a tendency to wax and wane over time. Weakening a policy that is effective in inhibiting the spread of a disease will tend to hasten the spread of the disease. A good policy to manage a contagious disease would be a better policy if it were defined to self-adjust in both directions.

Some COVID-19 defense suggestions

By Mathew Goldstein

Protecting people from a contagious illness invariable harms the economy and protecting the economy invariably increases infections. One way to break this cycle of misery and deprivation is with widespread testing and contact tracing. Another way to break this cycle is a medical remedy. Alternatively, after some years, sooner if the economy is prioritized over individual health, COVID-19 could almost exhaust itself by infecting almost everyone provided that everyone who survives thereby acquires a long lasting immunity (which also implies an effective vaccination could be developed). It appears likely one or more of these cycle breaking scenarios will happen eventually. While we wait for a medical or epidemiological remedy without knowing how long this will last, we can take precautions against the risks posed by COVID-19.

If you have an Apple Mac, Linux, or MS Windows computer you can install the folding@home program https://foldingathome.org which simulates the dynamic movements of the proteins the virus creates (with the help of the hijacked cells). This information is useful for finding a medicine that blocks the functioning of the proteins. You can report your daily health status information to epidemiologists and health care researchers by installing the COVID-19 symptom tracker application on your mobile device https://covid.joinzoe.com/us.

You can make a face mask by cutting a cotton t-shirt. Here is one way to do this: Cut about seven inches from the bottom. Then make a vertical cut and fold it horizontally in half. Shorten the overall length of folded fabric to about 18 inches by cutting vertically on the open side. Then cut out the horizontal middle 5 inches from the open side for about 12 inches. Then unfold and put over the nose and mouth, tying the upper two strings behind the head and the lower two strings on the top of the head. The sizes are approximate, people with larger or smaller faces and heads should change the cutout sizes accordingly. Consider cutting and combining two cotton face masks from one t-shirt and wear them together, one over the other. A single layer may work better for aerobic exercise heavy breathing. Wash the face mask after each use. If you go out multiple times in a day you need multiple face masks.

The eyes are another potential route for infection. Consider purchasing silicon frame goggles. If you wear eyeglasses you will need over the eyeglasses (OTG) goggles. The face mask and goggles combination can reduce the quantity of any invisible dose of virus that reaches us. A lower initial dose of virus may (or may not, this is speculation) give the immune system more time to successfully build resistance to the virus. The face mask reduces the spread of infection by wearers who are infected but asymptomatic. Contagious COVID -19 infections are often initially, and sometimes completely, asymptomatic. 

More humidity decreases the amount of virus floating in the air faster (some laboratory studies have shown reduced transmission of the virus under more humid conditions) while increasing virus survival duration on surfaces. Therefore, you may want to pair trying to keep indoor humidity between 50 -70 percent with cleaning or disinfect commonly touched surfaces.

If you have a yard and are getting deliveries from online shopping then consider setting up an outside shelter, maybe using a tarp that is secured with bricks, to protect against rain and wind. Silicon gloves can be useful whenever you lack confidence in the safety of the objects you are touching. Remove the gloves into a garbage can without touching the exterior of the gloves. Turn the gloves inside out as they are removed, placing a bared finger under the second glove, twisting to get a better grip, and then pulling it off. 

Consider leaving packages outside overnight (some advocate leaving  packages outside for as long as three days). Place some containers or carrying bags in a foyer, hallway, or room near the place where the packages reside outside.  Remove and discard all of the original packaging and fill your containers or bags. Wash your hands. 

Ultraviolet light disinfects both surfaces and the air and can be used against SARS-CoV-2. Consider using a UVC lamp with a timer. Keep it away from children and pets and people’s eyes and skin. Shine the ultraviolet light on items brought in from the outside to disinfect them. Run a slow fan together with the UVC lamp to disinfect the air in a room.

Consider using a water electrolysis machine to generate hypochlorous acid from water combined with non-iodized salt. Hypochlorous acid is a weak acid disinfectant that can destroy viruses at concentrations from 200-500 per million within about 10 minutes (it may also work at lower doses). You can make you own as needed, it is considered to be safe enough to use on uncooked vegetables and fruit, and it can be sprayed on almost anything, including around a kitchen. Nevertheless, avoid breathing or drinking it.

Exposing your skin to some sun each day produces Vitamin D which improves the immune system response to the virus. Low or modest dose zinc and selenium supplements appear to be good bets for improving your odds of prevailing over COVID-19. Also, be prepared in advance for what could happen. Having an oximeter (in addition to the more commonly possessed thermometer) can assist with deciding whether to go to a hospital. Establish beneficiaries for your savings and property.

Lecture on an argument for God

This lecture discusses a philosophical argument about a popular Christian apologetic called Presuppositionalism - sometimes called the transcendental argument for God. The argument can catch people off-guard, because there are a lot of philosophically obscure issues that can be used to obscure some circular arguments.  The video of the lecture is by Bill Zuersher as an antidote.  It has a clear argument that points out the circular issues that invalidate the theistic argument.

Any members who enjoy philosophy or debating will probably like this. 
https://www.youtube.com/watch?v=5frD4Yh9Iew­

Flawed 1st amendment encyclopedia article

By Mathew Goldstein

The Free Speech Center at Middle Tennessee State University (MTSU) has created “The First Amendment Encyclopedia” with hundreds of articles, one of which, “So Help Me God”, was written by the dean of the Honors College at MTSU, and professor of political science, John Vile. The article begins by citing Michael Newdow’s 2008 lawsuit against Chief Justice Roberts in anticipation of his adding those four words to the presidential oath of office. 

Before discussing the contents of that article we need to discuss the lawsuit. The “causes of action” in the complaint filed with court are worth reading, see https://docs.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2008cv02248/134560/1. The first thing to note is that the complaint cites six “causes of action” counts that cover two different components of the presidential inaugurations. The first count targets the unauthorized alteration of the constitutional oath of office by the Chief Justice. The second count targets the government sponsored invocations to god and benedictions in the name of god by invited clergy. The lawsuit names two sets of defendants with the Chief Justice being the defendant for the “so help me God” component of the lawsuit while clergy are the defendants for the invocation and benedictions component of the lawsuit. Both counts argue a violation of the Establishment Clause. Counts three through five group together both sets of defendants and argue that they are also violating the Free Exercise Clause, the RFRA, and the fifth amendment Due Process Clause. 

Paragraphs 106-108 of the first count of the complaint reads: Since 1933, “so help me God” has been used at every public inaugural ceremony, with that unauthorized alteration interposed each time by the Chief Justice of the United States. If President-elect Obama (as a black man fully aware of the vile effects that stem from a majority’s disregard of a minority’s rights, and as a Democrat fully aware of the efficacy his Republican predecessor’s “so help me God” oath additions) feels that the verbiage formulated by the Founders is so inadequate that he needs to interlard his oath with a purely religious phrase deemed unnecessary by the first twenty presidents, Plaintiffs have no objection at this time. The President, like all other individuals, has Free Exercise rights, which might permit such an alteration. No such Free Exercise rights, however, come into play on the part of the individual administering the oath to the President. 

Paragraph 123 of the first count of the complaint reads: An oath-administrator’s addition of “so help me God” to the constitutionally prescribed presidential oath of office violates every Establishment Clause test enunciated by the Supreme Court, including the neutrality test, the purpose prong of the Lemon the effects prong of the Lemon imprimatur test.

The MTSU article says: “There is, however, contemporary evidence that George Washington engaged in a symbolic equivalent when he kissed the Bible after taking his oath, and that this practice was contemporaneously also reported for the inaugurations of Andrew Jackson, Abraham Lincoln, Ulysses S. Grant and, at times, through the presidency of Harry S Truman (Jonassen 2012, 898).“ There is an explanation for the Bible kissing that is relevant yet omitted from the article. At the time of the first inauguration the only law covering government inaugurations was state law. The applicable New York State law at the time called for a Bible to be kissed. So if we are looking for the first federal presidential inauguration to establish a presidential inaugural standard in accord with federal law the proper place to look is the second inauguration. There was no bible at the second inauguration (regardless of assertions otherwise from propagandists such as Mr. Barton).

The MTSU article then says: “In a comprehensive study of the subject, law professor Frederick B. Jonassen, of Barry University, has concluded that the practice is probably justified not only under the historical usage principle articulated in the case of Marsh v. Chambers as well as the free exercise rights of individuals choosing to add these words to the oath.”

The historical usage principle functions as little more than a bad excuse for selectively upholding some constitutional violations, we would better off with no such unprincipled “principle”. In any case, the original context for the application of that principle was an uninterrupted history of the practice in dispute starting from the initial Congress. That context does not apply to the alteration of the oath of office by the Chief Justice. 

And the “as well as the free exercise rights” comment is even more misdirected. The plaintiffs clearly stated that the target of their lawsuit was the alteration of the oath by the oath administrator. They acknowledged that the same alteration to the oath by the oath taker could be legally justified on free exercise grounds. The actions of the oath taker is a distinct, separate, issue from the actions of the oath administrator, and the plaintiffs stated that they were not litigating the former. There is no viable free exercise concern at play for the oath administrators.

The MTSU article continues: “He [law professor Frederick B. Jonassen] also argues that the practice passes the three prongs of the Lemon Test and other contemporary tests that the U.S. Supreme Court has used in contemporary cases involving the establishment clause of the First Amendment.” How can it be argued that altering the constitutional oath of office to render it theistic is necessary for achieving a secular government purpose? Is the constitution itself unconstitutional because the presidential oath is secular? The authors of the constitution knowingly and deliberately specified a single sentence, non-theistic oath. How can it be deemed necessary for the oath administrator to prompt the oath taker to append a phrase that the oath taker could append without prompting? And if the oath taker wants the modification then where are the written requests from the president to the Chief Justice? What kind of legal procedure allows for oath administrators to accommodate requests made verbally with no recorded evidence that such requests were actually made on the initiatives of the oath takers? And on this flimsy basis how can professor Jonassen claim, as if it is a relevant jurisprudential fact, that such requests were so made, and made not merely for partisan electoral self-defense or advantage but for personal free exercise?

This MTSU article is misrepresenting the relevance of the first inauguration and the context behind the plaintiffs lawsuit. The article also discusses the “so help me god” phrase for Congressional witnesses without addressing how that impacts atheists. Imposing theistic oaths on people invited to give testimony to Congressional committees should not happen and insofar it does happen should be challenged and declared unconstitutional. The article is about government sponsored theism yet it says nothing at all about atheists. It is a biased “disregard” atheists article.

My perspective is that while an inauguration ceremony event is optional, the inaugural swearing-in component is legally obligatory. Therefore, unlike the rest of the inauguration, where there can be some ambiguity regarding its non-government versus government status, the oath recitation is unambiguously always a government event covered by the Establishment Clause. The president elect can choose how the event is conducted. There can be an oath administrator or not, the oath can be recited in private or in public, etc. There are only a few common sense requirements. 

We need good evidence that the oath was recited so the oath recitation should be recorded. When there is an oath administrator then the oath administered should be the unaltered legal oath unless the oath taker provided a proper free exercise justification for the oath being altered in writing in advance. It is unnecessary for an oath administer to append a religious codicil, so a request to do that could be, and probably should be, refused. Following the completion of the legal oath the president has an individual free exercise right to add, on his or her own initiative, a religious codicil of his or her choice. That there is an individual free exercise right in an oath of office recitation context is clearcut and in my view should not be controversial or disputed. To deny anyone a government office because of an oath of office religious content restriction would be wrong and unfair, oaths of office are not supposed to be religious belief tests.

The primary effect of the oath administrators always appending the same monotheistic codicil while administering the oath is to mislead the public into concluding the oath is theistic. The effect implies the corresponding intent to conceal the awkward fact that the constitutional oath of office is non-theistic. Claims that the motive for the oath administrator to alter the oath is free exercise are not credible, that is a cover-up excuse. We should be publicly challenging both the president elect and the Chief Justice to administer the oath properly, without the monotheistic codicil, and every time it is not we should publicly criticize the practice. A president instructing the Chief Justice in writing to append the monotheistic codicil is a small improvement, but we can, and should, be doing better. Acknowledgements in some of the news media, prompted by the controversy, that the oath is non-theistic are a small win for non-establishment. Yet it is the oath takers, without the unnecessary prompting of the oath administrators, who should be appending a religious codicil of their choice on their own initiatives to government oaths.

What's Wrong with Philosophical Arguments? (continued)

New Version: In keeping with the theme of this essay,
this is a revised version based on edits from before and
after a Human Values Network meeting discussion.
This is the result of a collaboration, without giving credit to
individuals who made the contributions. (People are welcome
to add comments at the end of this article.)

Summary: Are debates between adversaries the best way to
establish what is true?  Is it better to use more cooperative
methods?


Is there a problem with the way the arguments and discussions are made 
when they are done in an adversarial, confrontational way?  Prof. Martin Lenz 
argues in the following excerpts from his article that there are problems 
with the way philosophical arguments are done.  Interested readers should 
follow the link and read the entire article.  (Prof. Lenz will have a book 
coming out soon.)

Maybe I should explain what I mean by an adversarial argument, 
for people who are not involved in science or academia.  
A classic example of an adversarial situation is a legal 
trial in which there is a prosecution and a defense lawyer 
and they are opposing each other, in an effort to give both 
sides to a judge or jury, to come to a decision that is reasonable.  
Academic adversarial situations don't have both sides in the same 
room, and they can go over decades.  One scholar may write a paper 
or give a talk at a conference that makes a hypothesis to explain 
 a observation.  Perhaps at the same conference, or over time in 
print, others criticize or point out limitations.  These can lead 
to arguments or disagreements that can last for years.

Being known for a discovery may help the academic get grants or funding, 
so there may be a monetary reward.  But that reward is usually a secondary 
consideration.  The main motivation is to be known for a discovery, for 
getting a reputation for expertise, and for recognition among peers.

Exerpts from article at 
https://aeon.co/ideas/the-adversarial-culture-in-philosophy-does-not-serve-the-truth

Professor of history of philosophy explains why adversarial
criticism is antithetical to truth
By Martin Lenz

This article was originally published at Aeon and has been 
republished under Creative Commons.
Written January 12, 2020 


"Philosophical discussions, whether in a professional 
setting or at the bar, frequently consist of calling out mistakes in 
whatever has been proposed.... This adversarial style is often celebrated
as truth-conducive. Eliminating false assumptions seems to leave us with
truth in the marketplace of ideas...  

"I doubt that it is a particularly good approach to philosophical
discussions.... [It implies that] Claims are either true or false;
arguments are either valid or invalid....

"...A more fluid attitude towards authorship [is] if you discuss an
idea among friends, tossing out illustrations, laughing away criticism
and speculating about remote applications.

"The appropriate metaphorical resources for naming this philosophical 
practice should not be derived from warfare but from playgrounds, where 
reinvention and serendipity guide our interactions."

"[But then] whose idea is it at the end of the night?..."
This last point gets into the issue of why people do this sort of thing 
in the first place, namely to get credit for the idea or "own" it.  They 
are remembered for the idea.  They want to be remembered by getting their 
name on a Law or Principle or Hypothesis.  This is a source of meaning for 
people's entire careers as scientists or scholars in some subject area.

Lenz makes good points but for somewhat wrong reasons, in my opinion. 

For a lot of problems in society, the solution has to come from getting 
people to cooperate to act together. If one smart philosopher comes up 
with an answer but can't convince other people to do it, then it won't 
solve the problem. If he/she can address criticism but not in a way 
that is inspiring and charismatic, people won't follow the lead even if 
they can't see a logical flaw. They must be convinced to buy into the goal 
and the path forward. This is a reason that, in business, a committee is 
needed to work on a project, because if many people don't agree to work on it, 
the project won't get done.

That doesn't mean that there aren't questions with true/false answers 
that can be decided by adversaries. That's the way the court and legal 
justice system is set up to determine if someone is guilty or not guilty. 

This also leads into another point that Lenz makes. When a group solution 
is accepted and then modified by a group discussion, the idea doesn't belong 
to one person any more. One person may have originated the initial idea. But 
the person can't continue to claim ownership if there are contributions from
 many people.

In the world of science, this issue is addressed by having multiple authors 
on publications. Usually, there is no notation about which author worked 
on which part of the paper. In movie projects, there are credits at the end 
that go on for many minutes with details about who had which jobs. But if 
you buy a product like an iPhone, it has a company logo on it, but who 
knows what person actually worked on which parts? There may be a wonderfully 
innovative part of the phone that no one knows who came up with the idea.

It is also a problem of coming up with new ideas and finding new ways to 
encourage new ideas and new ways to do things that can solve social problems. 
As Lenz wrote, new ideas come from a sense of play, which takes an extra 
kind of trust and collaboration.

Are the ideas for free, and people only get paid for the work of developing 
them?   Some say that Ideas are a dime a dozen, so they are cheap.  Is work 
the only thing that is paid for?  

Patents can be filed for new inventions, but the inventor doesn't get paid 
unless there is actually a product or service that is developed and sold 
based on the patent idea. 

Getting solutions to work, like getting videos to "go viral," is an entirely 
different effort from coming up with an idea. It comes from marketing to 
promote an idea. It is getting others to be excited about it.

If people are only paid for promoting ideas, but not for coming up with 
new ideas, will we have a society that advertises but doesn't create? 

As an example, I just heard a lecture on Da Vinci.  He had a lot of 
engineering drawings of inventions with exploded diagrams showing the 
parts to machines.  Even now, it is not known whether he actually 
invented the machines, or whether he just drew machines that were 
in common use that someone else built.  Is he getting some credit 
just because he was the guy who wrote it down and made the drawings?

During the group discussion, people pointed out a number of ways 
that ideas and development work are done without giving credit to 
anyone.  Open source software is written with input from many people.

Glenn Curtiss developed many inventions for airplanes in the 1910-1920's 
that were shared, partly with competitors like the Wright Brothers' 
company, to help build new planes, partly for the World War I effort.  
Curtiss was very successful.  Jonas Salk didn't parent polio virus 
in order that everyone had access to it.

Thomas Edison took a lot of credit for inventions that were 
collaborations of his research lab.  See recent movie "The Current

War" between Edison and Tesla.

There are collaborations, brain-storming sessions, and networking 
at conferences, in addition to presentations by individual or 
groups of authors.

There is an expression that good managers try to give 
credit to others rather than take credit for themselves to be successful.

What's wrong with Philosophical Arguments?

Summary: Are debates between adversaries the best way to 

establish what is true?  Is it better to use more cooperative 

methods? 

People have had philosophical arguments for thousands of 

years.  There has been some progress on some problems, 

but there are some topics, like ethics and rules of behavior, 

that have not given rise to rules that are considered to be 

philosophically definite. 

Is that because the problems are difficult, or is there a 

problem with the way the arguments are made?  Prof. 

Martin Lenz argues in the following excerpts from his article 

that there are problems with the way philosophical arguments 

are done.  Interested readers should follow the link and read 

the entire article.  (Prof. Lenz will have a book coming out soon.)

Exerpts from article at https://www.alternet.org/2020/01/professor-of-history-of-philosophy-explains-why-adversarial-criticism-is-antithetical-to-truth/
Or https://aeon.co/ideas/the-adversarial-culture-in-philosophy-does-not-serve-the-truth

Professor of history of philosophy explains why adversarial criticism is antithetical to truth
By Martin Lenz

This article was originally published at Aeon and has been republished under Creative Commons.
Written January 12, 2020  

 "Philosophical discussions, whether in a professional  

setting or at the bar, frequently consist of calling out 

mistakes in whatever has been proposed.... This  

adversarial style is often celebrated as truth-conducive. 

Eliminating false assumptions seems to leave us with 

truth in the marketplace of ideas...  I doubt that it is a 

particularly good approach to philosophical discussions.... Claims  

are either true or false; arguments are either valid or invalid....

"...A more fluid attitude towards authorship [is] if you 

discuss an idea among friends, tossing out illustrations, 

laughing away criticism and speculating about remote 

applications, whose idea is it at the end of the night?...

"The appropriate metaphorical resources for naming this 

philosophical practice should not be derived from warfare 

but from playgrounds, where reinvention and serendipity 

guide our interactions."

 Lenz makes good points but for somewhat wrong reasons. For a lot of problems in society, the solution has to come from getting people to cooperate to act together. If one smart philosopher comes up with an answer but can't convince other people to do it, then it won't solve the problem. If he (or she) can address criticism but not in a way that is inspiring and charismatic, people won't follow the lead even if they can't see a logical flaw. They must be convinced to buy into the goal and the path forward. This is a reason that, in business, a committee is needed to work on a project, because if many people don't agree to work on it, the project won't get done. 

That doesn't mean that there aren't questions with true/false answers that can be decided by adversaries. That's the way the court and legal justice system is set up to determine if someone is guilty or not guilty. But even questions that look like they should be this kind of problem, like "Is it good to believe in God?" or "Is it right to kill?", can depend on situations or the group that a person is in. If someone is born and raised as a fundamentalist among a fundamentalist community, then the answer to the first question may have to be yes. For a soldier in battle, the answer to the second may also be yes.

This also leads into another point that Lenz makes. When a group solution is accepted and then modified by a group discussion, the idea doesn't belong to one person any more. One person may have originated the initial idea. But the person can't continue to claim ownership if there are contributions from many people. 

In the world of science, this issue is addressed by having multiple authors on publications. Usually, there is no notation about which author worked on which part of the paper. In movie projects, there are credits at the end that go on for many minutes with details about who had which jobs. But if you buy a product like an iPhone, it has a company logo on it, but who knows what person actually worked on which parts? There may be a wonderfully innovative part of the phone that no one knows who came up with the idea. 

This may seem like a modern problem that applies to intellectual property, but the same issue goes back to the dawn of civilization. As soon as people sold their labor and lost control of the goods that they produced, they lost the credit and meaning for doing the labor. For their effort to have a meaning, they had to get something meaningful in return. This may be the reason that money has gotten its value, not just as a measure for exchanging goods but also as a important value in itself. Money represents the way that labor matters in society. Similarly, for this reason, slavery has failed as a way to provide labor in society because slaves aren't given anything that shows the value of their effort. They only get punishment if they stop working. 

Group efforts are as old as civilization, but they are getting more important in technological society. How do we find a way to share credit on a group project? For example, I posted a version of this essay online. What if I edit it to add comments from the discussion of a group? Is the essay still mine, or do I have to add coauthors or give credit to people who made contributions? 

A current example is given by the website TikTok. People make 15 sec videos of lip synching or dancing to a song. The site is Chinese and they don't worry too much about copyrights. But it raises the question of who owns the video. Is the dancer stealing the music, or is it a friendly collaboration?  What happens if the videos help to promote the song to make it a number one hit, as happened for the song "Old Town Road"?

The modern problem is still whether people are paid, and what they are paid for. It is also a problem of coming up with new ideas and finding new ways to encourage new ideas and new ways to do things that can solve social problems. As Lenz wrote, new ideas come from a sense of play, which takes an extra kind of trust and collaboration.  

Are the ideas for free, and people only get paid for the work of developing them? Should ideas be valuable, or is work the only thing that is paid for? Patents can be filed for new inventions, but the inventor doesn't get paid unless there is actually a product or service that is developed and sold based on the patent idea. In government, companies write proposals with ideas about what they plan to do, but the proposals are written for free. They don't get paid until they carry them out.

Getting solutions to work, like getting videos to "go viral," is an entirely different effort from coming up with an idea.  It comes from marketing to promote an idea.  It is getting others to be excited about it.  It may even come from an employer who says "Do it in a new way or else you'll be fired."   

If people are only paid for promoting ideas, but not for coming up with new ideas, will we have a society that advertises but doesn't create? Is that the kind of society that we want to have?

How to get social change without wanting it

Emily Todd VanDerWerff wrote an essay on the final episodes of the HBO TV show Game of Thrones, "Game of Thrones’ final season told flattering lies about wanting power." Although the article was about the TV show, it seems to me that the point of the article can be applied to the problem of activism and achieving social change.  But allow me to explain.

For anyone not familiar with Game of Thrones plot, the show is set in a fictional medieval time period in which several characters are competing to become the absolute ruler of the Seven Kingdoms by sitting on the Iron Throne.  One of the leading candidates, and a fan favorite to become ruler, was a woman named Daenerys (or "Dany") Targaryen.  But in the final three episodes of the series, this character strangely and inexplicably changes from a benevolent ruler into a tyrant who shouldn't be queen.  (I won't give away any spoilers from the plot, but this transition has generated a huge amount of fan criticism about the conclusion of the show, including a movement to redo the ending of the series.)

VanDerWerff also criticizes this transformation of the character, writing:

The argument the show tried to advance throughout its run was that Dany’s desire for the Iron Throne had caused her to lose sight of her larger goals — that the truest way to determine who should gain power was looking for someone who didn’t actually want to sit on the Throne. Lord Varys came right out and said this..., “Have you considered the best ruler might be someone who doesn’t want to rule?”  

VanDerWerff continues by arguing that the desire to be queen shouldn't disqualify a candidate from being queen.  Why should that make any sense?  Does wanting a position of power immediately make a person power-mad and therefore undeserving of having power, because they may be tempted to use the power for their personal benefit?

In order to understand this problem, it is important to understand the role of prosocial behavior (sometimes called "altruism") in the role of a ruler.   I've written previous essays about the development of prosocial behavior from group selection in evolution, here and here.  

The prosocial behavior of a ruler or leader is useful to the group if the leader is thinking about the best interests of the entire group, not just the best interests that are personal to the leader alone.  A leader like a king, general, or CEO of a corporation has their authority recognized by members of their organization because they are given the responsibility to act in ways that are a benefit to the entire organization.  For complex organizations, without a leader of that kind, the organization would simply fall apart and be ineffective.

But even though a leader has the responsibility for the entire organization, the person still has personal interests.  No one who understands human behavior would think that personal interests are erased.  As a result, the leader has to show a balance in their behavior.  They have to demonstrate their interest and commitment in the organization to keep the trust of the members.  They have to make their personal interests look secondary, even if these interests aren't actually less important to the leader.

This dichotomy can look like it is a deception, or it can actually be a deception.  The best leaders with oratorical capabilities can convince most of the members of the group that they are sincere.  Barack Obama used the slogan "Yes We Can" to convince people to work together to solve problems under his leadership.  John F. Kennedy had the memorable line in his inauguration speech, "Ask not what your country can do for you; ask what you can do for your country." On the other hand, Pres. Donald Trump is clearly personally benefiting in financial ways from his presidency from his hotels and real estate rentals, although he claims he is losing money compared to what he could otherwise make. However, such claims may make him look more truthful to some people compared to other politicians who claim to be altruistic.

These conflicts of interest can be troubling for dictators or absolute monarchs.  To return to Game of Thrones, the idea of giving absolute power to a monarch with personal goals and no oversight can be dangerous.  This is the source of discomfort for aristocrats about a ruler like Dany, who may make choices based on her personal goals and preferences that are binding on the entire society.  Dany would have to give an indication that she could restrain her goals based on advice from her advisers.

Activists who are attempting to create social change have a similar problem.  They have a personal conviction that change to society is necessary, and they have a personal stake in causing society to change.  But that personal interest is exactly what makes them suspect as leaders.  In the same way as Dany, it is difficult for followers or other members of society to know whether the activists will show restraint and prudence to the opinions of others, if they are given positions of power.

This kind of conflict of interest is unavoidable in group selection.  For a leader to generate social change among all the members of society, they have to look like they don't want it too much.  They obviously want it to some degree, but they have to be willing to yield their desire to social pressure and political prudence.  Abraham Lincoln is considered to be a great president because he had the ability to balance many competing interested among factions of people, rather than simply considering his own opinions.  

Good leaders or social activists have to convince other people that the ideas and goals are good for everyone, but if other don't agree then they won't be forced to agree.