Nothing could be more curious to Muslims than Western non-Muslims telling them what their religion is about. Would not Christians find it odd to hear from Muslims what the true meaning of their religion is? Nevertheless, after almost every terrorist act against a Westerner, particularly the more gruesome ones like beheadings, Western heads of state reflexively react with protestations that such acts are absolutely un-Islamic, despite the explicit claims of their perpetrators that they are done precisely as religious acts, as they exultantly declare, “Allahu Akbar.”
Peter Thiel’s new book, Zero to One, is ostensibly a self-help book for those who want to succeed at start-ups. But any powerful self-help book flows from a philosophy of the world, and Thiel reflects his libertarian and transhumanist impulses. Zero to One is thus far more interesting and more original than most business books. But the book is also at times disappointing because, amid arresting insights, it contains overstatements and simplifications. And at the heart of the book is a paradox: Thiel believes that innovation is less than it could be, but he does not offer a convincing explanation of why the market for startups should be failing.
The specific advice to startups is the book’s greatest strength.
One more issue that the so called Yes Means Yes California statute on sexual assault in colleges raises is how sex between people who are intoxicated is regulated. (For my earlier discussion of the statute, see here.)
The statute requires colleges to adopt:
(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:
(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.
These provisions address two aspects of intoxication. One involves a situation where the intoxication of the accused led him or her to conclude that the complainant had affirmatively consented. The other involves a situation where the the complainant appeared to affirmatively consent, but was unable to do so because of intoxication.
Clearly, the statute treats the intoxication of the complainant and the accused quite differently. If the accused’s belief in the complainant’s consent was due to his or her intoxication, that’s tough. By contrast, the apparent affirmative consent of the complainant does not count if the accused reasonably should have known the complainant was intoxicated and unable to consent.
This conversation with Roger Scruton engages his defense of the conservative disposition. Scruton’s just-released book, How to be a Conservative, might be said to take on the challenge Friedrich Hayek issued in his famous essay “Why I Am Not a Conservative.” There, you will recall, Hayek argued that conservatism does not offer a program, or any substantive content that would affirm a free society. It is always in prudential retreat. This conversation explores Scruton’s Burkean-informed notion that tradition and habit aren’t blind guides, but are teachers and modes of social knowledge by which the perennial problem of social coordination is…
Acting in the manner of sorcerers’ apprentices over several decades, the makers of U.S. foreign policy have contributed to turning many of the tensions among the world’s peoples into disasters. These American-caused disasters diminish the respect for America upon which our own peace depends. The trouble comes not from any errors of detail, but rather from disregarding the fundamentals of statecraft. The remedy lies in paying attention to them. Herewith, a glance at the U.S. government’s responsibility for the disasters now unfolding along the Islamic State’s bloody edges.
Charles Austin Beard (1874-1948) was a more complicated and interesting thinker than the Progressive sage commemorated during the centennial of his An Economic Interpretation of the Constitution of the United States. Perhaps that’s the problem with writing a book with a thesis so simple and straightforward as to discourage careful consideration of the work as a whole.
It now often said that social movements help generate modern constitutional law. Sometimes the claim is made in defense of living constitutionalism, because, according to many scholars, the influence of social movements shows that living constitutionalism has democratic roots and does not consist of rights simply minted by judges. While it is certainly true that social movements play an important role in living constitutionalism, they do not erase its democratic deficit, let alone assure that new constitutional norms reflect the consensus that the amendment process would provide. One reason for the continuing deficit is that justices write opinions to aid some movements and not others.
A case in point is the movement for same-sex marriage.
The new California statute regarding sexual assault on college campuses, which is known as the Yes Means Yes law, has received considerable attention. I thought that I would take a look at the statute and evaluate the statutory language to determine what the law actually says. I should note that I don’t teach criminal law or torts, and therefore do not have any expertise about these matters. This is a post simply by a law professor analyzing the statute.
The most important provision of the statute imposes an affirmative consent standard. Section 1(a)(1) provides that
“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
The most obvious question here is what affirmative consent means. Conscious and voluntary seem relatively straightforward (although there are issues), but what does affirmative mean? Does it mean verbal consent? Does it mean express consent?
The statute does not define the term and dictionary definitions are not entirely clear. In my view, one can read the language either way. Some definitions of affirmative seem to imply expressing or asserting it. Other definitions might be understood as merely requiring an action on the part of the person. (See, e.g. an affirmative duty to stop crimes in their buildings.) While I would probably read it in the latter way, the statute is not clear.
The philosopher Mary Midgley tells us that myth is not just an obstacle to thought, or even merely an adjunct to thought, but an essential part of human ratiocination itself. Whether this is actually so or not in the philosophical sense, namely that human thought is completely impossible without the making and use of myth, I do not know; but what is certainly the case is that mythology is a powerful force in human affairs, not least in politics. And myth can do harm as well as good.
In Britain, the most powerful political mythology (perhaps for lack of any other) attaches to the National Health Service (NHS). This way of organising our health care was born with original virtue in 1948, since its conception, in more senses than one, it has become more and more immaculate. If the service had a slogan, it would be Noli me tangere. No British politician would dare admit that its institution was anything other than an unmixed blessing; no British politician, at any rate none who aspired to office, would dare do anything other than tinker with it at most. Against the mythology, Mrs Thatcher herself was as helpless as a day-old kitten.
My thanks to the Library of Law and Liberty for inviting me to respond to David Upham’s review of my new book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (Cambridge U. Press 2014). Thanks also to Prof. Upham for taking the time to review the book and his gracious acknowledgement that it constitutes a step forward in our understanding of the Privileges or Immunities Clause. Unfortunately, in some of his more critical comments, it appears that Upham has misunderstood the theory of the book and (worse) missed much of the evidence presented in the book.