StephanKinsella.com

The “Arab Problem”

Posted by Stephan Kinsella on March 26, 2004 11:00 AM

The following informal memo (Download file) was passed on to me by a pro-Israel, pro-war attorney. Apparently this is what passes for sober wisdom among neocons; this is the kind of thing they are apparently passing along to each other in secret, wink-wink emails.

The piece is, as far as I can tell, anonymous, but draws on Colonel Ralph Peters views. The memo breathlessly argues that “our enemy” is basically Arab culture. As it suggests: “We’re facing a 14th century culture engaged in a 14th century war against us. The problem is that they are armed with 20th century weapons, which may eventually include nuclear weapons. … It may sound strange to say, but what we have to do is to take the 14th century culture of our enemies and bring it into the 17th century. Once we’ve done that, then we can work on bringing them into the 21st century, but that will be much easier.”

I’m reminded of Rothbard’s proposal to repeal the Twentieth Century (unlike the William Buckley/National Review crowd, who advocated that conservatives “stand athwart history, yelling Stop.”)

So it seems to me that instead of bringing Arab culture from the 14th to the 21st century, we should meet them halfway, around the 18th or so. What the hell, let’s make it the 16th.

Other recent LRC blogposts:
The Golden Age

From Bad to Worse (on database bill)

Bullying

Is every conservative organization insane? (Federalist Society)

Re: Is every conservative organization insane?

Posted by Stephan Kinsella on February 28, 2004 12:08 PM

Thom, this reminds me of one reason I quit the Federalist Society. While they are more conservative and even more free market than most lawyers, the ones I’ve met have been woefully non-intellectual, ignorant, and completely unlibertarian. I remember a few years ago I was at a luncheon w/ some fellow members of the Houston chapter. I was sitting next to one guy who is an extremely intelligent lawyer, at a big firm, very well educated from some posh New England law school, etc. Trying to draw some interesting conversation out of him–he was kind of quiet and reserved, and I was not sure of how conservative, or libertarian, or whatever he was–I finally asked him something like, “Well, which political philosophers would you say you admire?” The answer stunned me, almost left me speechless: “Oh, I’d say Newt Gingrich.”

‘Nuff said.

Impeach Jefferson!

Impeach Jefferson!

Posted by Stephan Kinsella on February 26, 2004 04:47 PM

A French-German Tulane law student acquaintance of mine (he speaks nine languages–I only speak about 0.7), Frederic Sourgens, sent me his Inn of Court brief where he argues for the impeachment of President Jefferson for undertaking the unconstitutional Louisiana Purchase. A bit rough, but fun… Download file. After 30 pages of legal reasoning, it concludes: “President Jefferson must be removed from office because of his blatant disregard of the Constitution constituting a high misdemeanor of state and high treason against the United States.”

Gay Marriage Amendment

Gay Marriage Amendment

Posted by Stephan Kinsella on February 24, 2004 02:31 PM

From an article on the proposed Gay Marriage Amendment: “Bush plans to endorse language introduced by Rep. Marilyn Musgrave (R-Colo.) that backers contend would ban gay marriage but not prevent state legislatures from allowing the kind of civil unions and same-sex partnership arrangements that exist in Vermont and California. …

“Musgrave’s proposal, called the Federal Marriage Amendment, states: ‘Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.'”

This is bizarre. First, what would happen to bigamy statutes which prohibit one man marrying two women? One reading of the amendment would be that marriage is “defined” so that bigamy cannot exist–after all, it’s not just “a” man and “a” woman. So would bigamy now be decriminalized?Second, even this wording does not seem to prohibit “gay marriage”. Suppose Louisiana passed a law permitting gays to marry. They are not being required to do it by a judge or the feds; they just do it. Does this amendment mean that even a clear law letting gays marry can’t be “construed” to mean what it says? And what is “marital status”? Does it refer to the status that society confers upon marriage? If so, how can the Constitution affect it? Or does it simply refer to the *label* used in the state statutes? After all, even its drafters admit civil unions could be permitted–these could be identical to marriage in every way except the label used in the title of the statute.

In sum, this proposed amendment seems to do the following: it prevents judges from forcing states to include gays in their marriage laws. But it does not seem to prevent states from having civil unions, or even from enacting their own marriage laws.

Nor does it seem to do a good job at making it clear that one state’s gay marriage laws need not be given full faith and credit by others.

A better amendment would be simply: “No State may be required by the Federal government, including Federal judges, to recognize gay marriage, nor to give full faith and credit to gay marriage laws of Sister States.”

An even better amendment would be: “The Federal government shall have no power to tax.” Let’s keep our eyes on the ball, people!

N.B.: I am of course NOT calling for or endorsing a constitutional amendment or convention–I don’t trust any of these bozos.

“a cooked dough product having a light, flaky, crispy texture”

“a cooked dough product having a light, flaky, crispy texture”

Posted by Stephan Kinsella on February 21, 2004 01:10 PM

For those curious about the actual patent process, Chef America, Inc. v. Lamb-Weston, Inc. is an interesting and short recent case. This is a typical example of how patent attorneys describe reality and how federal judges handle patent disputes.

The case concerns U.S. Pat. No. 4,761,290 (PDF version; USPTO version), owned by plaintiff Chef America.

The patent covers “[a] process for producing a dough product which is convertible upon finish cooking by baking or exposure to microwaves in the presence of a microwave susceptor into a cooked dough product having a light, flaky, crispy texture.” The patent explains that with prior dough products “[i]n large measure, instead of the desired light, flaky, crispy texture, the cooked products have been found to be leathery, in the case of baked products, or soggy in the case of microwave heated products.” It involves the process of “applying a layer of shortening flakes between the dough and a light batter which is applied to the dough, setting the batter and subsequently melting the shortening flakes present in the set batter in order to form pin holes or air cells in the batter and at the surface of the dough. Upon finish cooking, these pinholes or air cells form a porous product and permit the batter to be quickly heated and browned, resulting in a dough product having a light, flaky, crispy texture to the pocket.”The patent’s technical description explains that the dough is cooked in an oven, at a temperature from about 400 degrees F. to 850 degrees F. The problem is that the claims of the patent–which specify what invention is legally protected–include the step: “heating the resulting batter-coated dough to a temperature in the range of about 400° F. to 850° F. for a period of time ranging from about 10 seconds to 5 minutes to first set said batter and then subsequently melt said shortening flakes, whereby air cells are formed in said batter and the surface of said dough”.

The claim should have said heating the dough “at” that temperature, not “to” that temperature. The dough is in an oven which is at 400° F. to 850° F., but the dough does not reach this temperature. If it did, it would burn up. Lamb-Weston was accused of infringing the claims of Chef America’s patent. But Lamb-Weston pointed out that it did not heat dough “to 400° F.”; therefore, it did not infringe the claims.

Chef America argued “that ‘to’ should be construed to mean ‘at’ because otherwise the patented process could not perform the function the patentees intended”. In other words, the claim is nonsensical if you construe “to” to mean “to”; anyone skilled in the art (e.g., a chef) reading the claim would understand it to mean that the oven is at the specified temperature, not the dough being cooked.

However, the appeals court held that the language was unambiguous and the court would not rewrite it. As the court stated, “we construe the claim as written, not as the patentees wish they had written it. As written, the claim unambiguously requires that the dough be heated to a temperature range of 400° F. to 850° F.”

This was the correct ruling, IMHO.

Subsidiarity and San Francisco (Gay Marriage)

Subsidiarity and San Francisco

Posted by Stephan Kinsella on February 20, 2004 04:33 PM

Regardless of the substantive merits of whether a particular state or state sub-unit “should” “recognize” “gay marriage”–no right-thinking libertarian ought to be in favor of the feds–or even California–forcing San Francisco to abandon its recent policy of marrying gays. You can say the SF government should not exist; should not marry gays; should not be in the business of marrying anyone. But that does not imply that California or the Feds should have the power to do anything about it (and in the case of the Feds, constitutionally, they do NOT have the power to do anything other than to refuse to force other states to give full faith and credit California’s gay marriage policy).

IMHO, libertarians who are against gay marriage should not make the mistake of abandoning decentralization by endorsing the feds’ interference with local government policies on this issue.

Recess Appointments

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Why do we rile them?

by Stephan Kinsella on February 17, 2004

Post on the LRC blog.

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Long on Anarchy

by Stephan Kinsella on February 16, 2004

Long on Anarchy: Posted on the LRC blog.

Also: Bradford of Liberty on Rights; and

Gay Marriage.

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Gay Marriage

by Stephan Kinsella on February 12, 2004

Gay Marriage, LewRockwell.com (Feb. 12, 2004)

On the one hand, I am amazed at the degree of opposition some conservative/libertarian types have to gay marriage. It’ll “weaken marriage”–? Whose? Not mine. Say you’re given a choice: prevent an increase in taxes, or prevent gay marriage from being recognized. Easy choice! (Prevent tax increases, just in case you are on the fence.)

On the other hand, the problem with gay marriage is that it’s just the thin end of the wedge: the gays will use it next to argue that homosexuality should be included in all the antiidiscrimination laws.The whole issue is confused. Part of it is because the leftist minority is disingenuously using this as a tactic to increase gay rights, e.g. to affirmative action, anti-discrimination laws, etc. And partly it’s because people are not clear on the terms of dispute.

For many it comes down to mere semantics. For example, a conservative libertarian friend is opposed to gay marriage. But he admitted, he has no problem with the state enforcing agreements between people–two gays, two sibligs, a rock band–and calling it a civil union. If two people want to form a union whereby they pool their assets and liabilities, have power of attorney over each other in critical medical or death situations, why shouldn’t such agreements be enforced? So my friend’s only problem is if the statute legalizing such agreements refers to the union as “marriage”.

I.e., the objection is just to the label the state happens to use. Thin gruel, it seems to me. My view is agreements should of course be enforced. The labeling of the ontology of the relationships protected by the legal system should be left up to tradition and individuals–to private society. Gays would probably try to have “marriage” ceremonies; the civil union would be one legal result flowing from this. Gays and englightened liberals and other moral relativists would then refer to such gay couples as “married.” They would try to nudge others to do the same–much as ethic jokes have been pushed into the closet and certain official labels like African-American or visually impaired have been foisted on us and others, like black or colored or blind, are frowned upon.

Whether mainstream religions or mainstream (hetero) people would adopt the gays’ denoting of this relationship as “marriage” has nothing to do with law or the public policy debate. I can say I am “married” to my dog. No one is obliged to treat this seriously. Etc. It’s not a legal issue. Nor a political issue. Nor a libertarian issue.

One final comment. Bush wants to constitutionally define marriage as between one man and one woman. But if this is the case, doesn’t it mean bigamy can’t be a crime? After all, bigamy is marriage to multiple partners; but if marriage is only marriage between one man and one woman, bigamy is just impossible, legally. Clearly bigamy is a type of marriage, albeit an illegal one. The definition of marriage is broader than what’s legally permitted. Bigamy is funny (not funny-funny, but strange-funny). It’s not illegal to live with multiple women. Nor to refer to them as your wives. It’s illegal to apply for the official status with multiple wives. You see how the state here subtly equates its dictates with reality.

But presumably, if we “define” marriage as a union of one man and one woman, bigamy would still be regarded as illegal. Yet if two men attempt to marry, it just will be ignored, and treated as a non-event. So the federal attempt to officially “define” marriage has this result: a man (trying to) marry a second woman is illegal; but a man marrying another man is not (because it is not given status). How’s that–the traditionlists penalize heterosexual bigamy more than they do homosexuality. Methinks they are all confused; they should stop relying on the state to define what is or is not marriage; and should drop all causes secondary to that of lowering taxes and spending.

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Anarchy in Dutch

by Stephan Kinsella on February 1, 2004

Those Dutch libertarians are a pretty active bunch. They’ve previously translated two of my articles; now there’s one of my What It Means To Be an Anarcho-Capitalist, January 20, 2004, LewRockwell.com. It is Wat het betekent om anarcho-kapitalist te zijn, MeerVrijheid.nl (local copy).

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