PROGRESS

A few days ago, a psychiatrist friend of mine informed me that he had to arragne his schedule to accommodate an emergency; one of his female patient's car had broken down and she could not cope. This led to a discussion of how many elements of life, some of quite recent vintage began as conveniences and then became necessities (or at least came to be perceived as such). The list grows annually, and it is easy to image some people becoming virtually helpless without a cell phone, microwave oven or internet access. There is an entire segment of society that would be jobless were it not for a functioning fax machine. It is sobering to think that national security can be compromised by some miscreant hacking into a computer and causing a power outage.

This observation is not new, of course. Emerson remarked upon the general principle in his essay Self Reliance:

Society never advances. It recedes as fast on one side as it advances on the other. It undergoes continual changes; it is barbarous, it is civilized, it is christianized, it is rich, it is scientific; but this change is not amelioration. FOr everything that is given, something is taken. Society acquires new arts and loses old instincts.

Social progress is a journey for which the luggage capacity is limited, and this makes it frightening for some. For each liberty that we wish to assume, it seems there is some virtue that must remain behind. A certain amount of soul must be left behind to make room for each scientific discovery. The real question is whether what we leave behind is more valuable than what we take.

COMPETITION

Competition is as necessary an element of progress as is risk. At the most fundamental level the product of competition is efficiency, and consequntly, exploitation. The former is obviously beneficial (though not universally desirable) and the latter is viewed as evil. One of the tasks essential to a functioning society is to manage competition in such a manner that reaps its benefits and avids its pitfalls.

People who decry capitalism as a great evil do so because the competition for capital, left unchecked results in exploitation. A fallacy arises however when one assumes that eliminating competition will eliminate exploitation. This is almost never the case, and goes a long way toward explaining the rise of and failures of totalitarianism.

Not everyone agrees that efficiency is a desirable thing. There is a school of thought that considers the relentless pursuit of effeciency dehumanizing. Efficiency is unavoidable to progress however, and is in fact the underlying principle of evolution in virtually all systems, biological, economic, political, etc. Efficiency is simpy a measure of how much of something that is desirable can be produced per unit of something that is useful. Competition identifies the objectively superior system, as opposed to "planning" which seeks to prescribe it from the outset.

The explicit encouragement of competition is one reason why Anglo-American technological progress has been so impressive, while more theoretically appealing alternatives have been found wanting. Capitalism is not perfect, and can lead to abuses, but it is responsible for far more "progress" than its utopian counterparts (which are responsible for plenty of abuses of their own.)

RISK

There seems to be a paradox at the center of Progressive thought, and that is that Progressives appear to be opposed to progress. They support causes that impede progress and oppose those institutions that promote it. One need only consider the progressive position on the environment, government regulation of industry, education, social welfare programs, affirmative action, etc. to see evidence that this is the case.

The simple explanation of this apparent paradox is that progressives favor progress, not in the technological sense, but rather progress toward socialism as a desirable goal. This explanation does have some empirical appeal, but seems to skirt aorund the crux of the issue, and that is the fundamental aversion that progressives have regarding risk.

Socialism is not so much a method of distributing assets, as it is a method of reducing risk, in the most obvious case, the risk of abject poverty.
Much of the progressive agenda is directed toward things like universal healthcare, which spreads the financial risk of illness over the whole population; increasing minimum wages, which is perceived to reduce the risk of emplyed poverty (although at the unintended risk to job opportunity); and gun control, which seeks to implausibly reduce the risk of violence. Many of the undesirable consequences of socialism arise from the artificial and detrimental effects of eliminating exposure to risks in areas in which such exposure is beneficial. COnsider for example the effect on emplyee performance if substandard effort carries with it no risk of significant consequences.

One of the beneficial attributes of risk is that it provides incentive. Exposure to risk is also essential in the development of good judgment. Risk is a prelude to prudence. Furthermore, risk seems to be hard-wired into the psyche of a substatntial segment of the population. Risk can be addictive, as is evidenced by the conduct of cumpulsive gamblers, and recreational daredevils.

The fact is that risk is essential to progress and this is wherein lies the paradox. A society without risk of failure has no incentive to effort, a society without risk of privation has no incentive for effeciency or conservation. A society not subjected to risk of decay has no incentive to innovate or renew itself. A society that does not appreciate the role of risk in human life is a csociety that will cease to progress.

JUDGING THE IRAQ WAR

Now that the fifth anniversary of the Iraq war has passed, it seems logical that now would be a good time to appraise the enterprise. I don't think that this is the case, however. Right now, discussion of the war is too imbued with emotionalism, partisanship, and frank hysteria.

One of the most paralyzing shortcoming of current analysis is the tendency to attribute any undesirable outcomes to someone's bad character. Thus, it is often stated without authority that "Bush lied" or that he was influenced by nefarious "Neocons" harboring malignant motives.

These unhelpful attributes of the current debate are exacerbated by the simultaneous political campaigns. What would otherwise be dismissed as campaign rhetoric gets mixed into more thoughful discussion and clouds, rather than illuminates the issue.

In the coming years, Bush's decision-making process will be scrutinized by more thoughtful and less biased scholars, and I suspect that he will come off considerably better than one would predict solely from today's discourse. It is fortunate for Mr. Obama that he was not a member of the United States Senate, required to make a consequential decision on the type of data presented to President Bush and Hillary Clinton. That data was far from perfect, and less than conclusive, but the decisions demanded at the time were not of a type that could await certainty.

What is most interesting is that the intelligence that was available to decision makers was colored by the recent intelligence failures of 9/11. This understandably led some in the intelligence community to be more aggressive in their analyses. No one was eager to be accused of "failing to connect the dots," particularly with the consequences of the most recent lapse frresh in memory. Likewise, policy makers, from the President, to his cabinet, to congressmen and senators could resonably be excused for interpreting the data in a light favoring a present threat. These were not due to poor judgment, incompetence, or improper motives; they were the understandable actions of persons who did not have the luxury of defering decisions that had potentially grave and immediate consequences.

An enlightening appraisal of the treatment of prewar intelligence can be found int eReport of the Senate Select Committe on intelligence dealing with the same topic, which can be found here .

Of particular interest is the way in which intelligence assessments were made to sound more conclusive by a stylistic edit removing phrases like "we judge," which was intended to eliminate the plural pronouns, but which had the effect of making the intelligence sound more definite. It is contained in Section X, regarding the White Paper on Iraq's Weapons of Mass Destruction Programs

Standing by your man

Magazines, television talking heads and water cooler chatter concerning the Eliot Spitzer matter keep asking why political wives "stand by their man" in the face of scandalous behavior. Is it quant to hope that somehow, it might have something to do with "for better or for worse?" Really, isn't that what a person who takes her wedding vows seriously is supposed to do?

Here's an example of what I mean when institutions go overboard in pandering to individual sensitivities:

IUPUI stupidity

PROTECTING FREE EXPRESSION

The most immediate threat to civil liberties in America is the notion the subjective feelings should be protected by government power. There is presently a campaign to purge both public and private discourse of "offensive" speech and images, and to limit expression based solely on the potential emotional response of the audience. This is not merely a question of interpretation regarding freedom of speech; it is fundamentally an issue of the appropriate use of govenrment force in regulating discourse.

There is no right to not be offended. There is no valid governmental authority that would protect an individual from the expression of another. There is, however, and this must be repeated as clearly as possible, a right to engage in offensive expression. This is true even if such expression is for the sole purpose of causing offense.

Refraining from injuring or offending the subjective sensibilities of others is a matter of manners and good character, not a proper invocation of the police power. The government has no legitimate interest in the impossible task of guarding against hurt feelings, regardless of whether one perceives insult based on race, religion, sexual orientation, political affiliation or any other grounds. Free expression is more important than individual feelings.

The legal actions for libel and slander protect reputation, not feelings. There is no such thing as objectively offensive because offense is subjective. Regulations, such as the odious speech codes that afflict college campuses, that seek to guard subjective sensitivities have an ever-changing object, and thus lose one of the main benefits of having regulations and laws: predictability in application.

Defense of civil rights necessarily entails defending the unpopular and even repugnant, and this is true in the case of offensive speech. Institutions cannot be guarantors of our feelings; they only cause harm and injustice when they try to be. There is something quite insidious and corrosive about an institution forcing someone to defend his thoughts against a charge that someone's feelings were hurt by them.

The first problem to be encountered in healthcare reform is determining just what exactly healthcare is. This seems trivial until one actually undertakes to do it. Is abortion healthcare? In all circumstances? How about chiropractic care? Many people derive benefit from chiropractic treatment, but how about chiropractic care to treat cancer or infertility? Aroma therapy? Faith healing.

Then there is the problem of therapy that is scientifically efficacious but ruinously expensive. Should a reformed healthcare system guarantee access to all for those therapies?

The most logical, and therefore less emotionally appealing approaches is to only allow therapies that have been scientifically demonstrated to be cost effective, with cost effectiveness measured against the cost per year of life saved in hemodialysis patients. This would solve a lot of problems. Quack therpies would not be cost effective because they are not effective at all. The same would apply to demonstrably futile therapies, such a transplants in end stage cancer patients. There would be a competetive pressure to make therapies more efficient, and reach the cost-effectiveness threshhold. Non-cost effective therapies would still be available, but the healthcare system would have no obligation to provide them.

The prominent role that potential Supreme Court nominations play in presidential campaigns suggests that Court itself has becomje too prominent in American government. To remedy this, I propose the following constitutional adjustments:

1.) The term of Supreme Court Justices shall be limited to twenty years, and

2.) The precedential value of all Supreme Court decisions shall expire after twenty years; i.e. lower courts would not be bound to follow High Court decisions after twenty years.

Americans are understandably concerned about deterioration of their liberties resuting from the war against terrorists. However there seems to be no consensus as to what liberties should be most vigorously guarded and which can be permitted some degree of encroachment.

I should like to focus this weblog, at least for a while, into the nature of our rights and freedoms, so as to have a framework upon which to analyze challenges to our liberties.

Of all the characteristics of our liberties, I believe that the least appreciated is this: Rights and freedoms are do not derive from the altruism of the state. They have purposes that benefit not only the individual, but ultimately the state as well. The American government is not sharged with protecting essential liberties a a beneficial by-product of consensual government; it does so because protection of such freedoms is essential to the purposes for which the people have formed a state.

All of the concern over the NSA surveillance program raises a fundamental question: Are privacy issues related to government surveillance matters of kind or degree? I tend to think that they are the latter. the government conducts surveillance on citizens daily without probable cause: airport screenings, photoradar used in traffic enforcement and DUI checkpoints are all types of surveillance that seem to be generally regarded as proper.

In considering the propriety of surveillance, people obviously try to find the distinctions between the types of "proper" surveillance referred to above, and the surveillance conducted by the NSA and other agencies under the Patriot Act. Some such distinctions include: certain expectations of privacy that attach to phone calls are waived to varying degrees when one boards an airplane or drives on a public street.; phone conversations inherently invoke freedom of expression which might be chilled by the possiblity of surveillance--an issue that does not affect plane travel or driving a car. Closer examination of these distinctions reveals them to be matters of "how much" rather than "what kind." It is a question of how much of an expectation of privacy that we attach to an activity before it invokes constitutional principles. Likewise, it is the degree to which an activity might be regarded as protected expression before it is protected by privacy concerns. Not all expression is constitutionally protected, after all. The underlying principle that I have sought to illustrate by way of example is that there are no activities that are absolutely protected from surveillance. Even certain physician/patient. and attorney client communications are subject to compelled disclosure. Legal protections of those activities are always qualified. They depend on the boundaries that we as a society have drawn to balance personal and societal interests. Thsese boundaries are proper matters for legislative definition rather than judicial divination.

The acceptable limits of government surveillance should be clearly defined by congressional action agfter vigorous debate and responsible reflection. They should not be fashioned from the penumbras of dusty precedents, hard facts, and tangential analogies.

Current events, particularly the Alito confirmation hearings and their emphasis on abortion, as well as the National Security Agency's surveillance program have focused on issues of privacy. It would appear that there is a popular misconception as to what exactly privacy is and what purpose it serves in a society.

The right of privacy is in fact an incident to the necessity of citizens in a society having to interact with one another. Being able to function in society requires a person to have at least come control over the image he or she presents to others. This is obvious in the case of business persons who must come across as trustworthy and capable. It similarly pertains to politicians, educators, journalists, physicians and many others whose occupations require the public to maintain at least a presumption that a person is of a certain character.

This principle is the basis of laws against libel and slander, which recognize that a person’s reputation is an indispensable part of his or her ability to function as a member of a society. The right of privacy is recognition that a person should maintain some control over the image that he or she presents to one’s peers.

Human nature leads us to form biases and jump to conclusions about our fellow citizens based on the scantest of evidence. We may form an opinion about a man’s truthfulness by being informed of his sexual appetites, or feel justified in holding his quirks against him. There is natural temptation to color our opinion of a judge’s objectivity if we were to know how he carries on with the au pair. We might look elsewhere for our healthcare if we were privy to the insensitive things our doctor says to his wife. We generally do not know enough about any of our acquaintances to form complex opinions about their character, and having access to glimpses and fragments of these person’s lives tends to exacerbate rather than relieve this shortcoming.

Furthermore a man should be free to experiment in his own thoughts; to have a sanctuary for the expression of his ideas without fear that a capricious impression of those ideas may lead to his ruin. Respect of a man’s papers and effects is no more than a declaration that we will not condemn a man for thoughts that he would otherwise keep to himself.

Privacy is therefore a means of allowing citizens to function as individuals within a society. Privacy also touches on the concept of dignity. There is certainly an element of propriety about minding one’s own business, and this arises from the notion that we often cannot know enough about our neighbor to judge him fairly. Recognizing a right of privacy allows a society to declare a simple element of common decency and fairness.

What we modernn Americans have done however is to confuse the concepts of privacy and liberty. We have adopted the mistake belief that privacy arises from some altruistic impulse within the state. We have been help along in this misconception by the American Courts.

The notion of privacy and the judicial construct of the “right to privacy” are inextricably linked with American concepts of sexual conduct. This linkage is so accepted, that we fail to notice that it is based on an ambiguity and a logical fallacy. When the Supreme Court recognized the “right of privacy,” it was not in fact referring to privacy, but to liberty. The notion of preventing legislative action in matters of sex and reproduction was introduced by Justice Harlan in 1961 with his declaration:

I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual¹s personal life.

This statement is much more intuitive when phrased without reference to privacy:
I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable restriction on the conduct of the most intimate concerns of a person’s personal life.

What Justice Harlan’s statement does is to refer to privacy when he means liberty. In doing so he makes use of an ambiguity that is best illustrated by the slogan “What I do in my bedroom is my business.” Privacy refers to “my business;” liberty is concerned with “what I do.” By interchanging the two, our Supreme court sent American jurisprudence on a detour through specious reasoning from which it has yet to emerge.

Later Jurists built on Harlan’s premise of “an intolerable and unjustifiable invasion of privacy” to find a general right of privacy in the Constitution. In so doing they made use of a logical fallacy of assuming that which is to be proven. The argument is circular: The Constitution contains a right of privacy regarding reproductive matters because statutes regulating those matters would violate the right of privacy. The right of privacy must be assumed as a condition of its being found.

More recently, the Court has abandoned its quirky view of privacy and begun to discuss matters in the more appropriate language of liberty. Justices Kennedy, O’Connor and Souter waxed responsible with their declaration in Planned Parenthood v. Casey:
Our obligation is to define the liberty of all, not to mandate our own moral code

An interesting intellectual exercise is to try and explain why the Supreme Court avoided using the language of liberty for forty years when talking about government involvment in sexual practices.

The media have closed ranks behind Newsweek regarding its latest journalistic lapse. The magazine's defenders have gone on the offensive with comparison's of Newsweek's shoddy fact checking and the White House's erroneous reliance on reports of WMDs. Pete Stark wonders how the White House dares criticize Newsweek in light of the government's intelligence failures. Here's how:

One point is often overlooked: The President's decision to go to war was not an incorrect decision based on incorrect data, it was a correct decision based on indeterminate data. As a matter of decision theory, the president's decision was the correct one. Here's the principle:

The risk of doing nothing if the data was true was greater than the risk of doing something if the data was false. Even moreso, the risk of doing nothing when the data was uncertain was greater than the risk of doing something definite based on indefinite data.

If Saddam was clandestinely supplying terrorists with mass-destructive technologies, the risk of doing nothing was tens of thousands dead in American cities. The data that Saddam contemporaneously had weapons of mass destruction was not the only data considered. Saddam did have and used poison gas against civilian populations. He abetted terrorists by paying solatia to the families of Palestinian suicide bombers. By any reasonable analysis, Bush's decision was correct.

Compare this with Newsweek. There the risk of doing nothing with tenuous information was much less than the risk of publishing it. The worst case scenario if they did nothing was perhaps they would lose a scoop. The risk of rash publication was demonstrated in the news: riots, and further inflaming the oft-manipulated anti-Americanism of the chronically disaffected.

Idle contemplation of the methods of radical Islam leads to the following thoughts:

1.) Any ideology that relies on violent coersion for acceptance lacks the underlying truths to endure. If the radical Islamists must appeal to fear and intimidation, it is because they cannot rely on the spiritual and universal truths that are inherent in more successful movements. Islamists should look to their own history for inspiration. The mongols regularly routed Muslim armies. They traversed Persia and central asia at will, yet the fundamental truths of Islam converted the conquerors. It is these truths that the radical Islamists have lost.

2.) The mehtods of radical Islam are pretty hopeless. Their repertoir consists solely of spectacular explosions. It would appear that no one supporting the radical's aims has thought that this is a poor foundation for an empire. Presumably, the radicals think that terror bombings will force enough concessions to allow them to engage in more effectrive means of intimidation. Hamas' experience with Isreal should disabuse them of this notion. If the methods of radical Islam can't even succeed against a small, politically isolated country with limited resources, they have little chance of spreading the faith world-wide. Frankly, the fact that some disaffected idealists are willing to blow themselves up is neither terrifying, novel, nor impressive. Suicide cults are as old as civilization. Suicide missions in warfare have a long and storied history independent of jihadist mythology.

3.) The jihadist tactic of indiscriminant suicide bombing lacks any sort of appeal to legitimacy. Even if one were to assume that Islam condoned such behavior, the religious contradictions involved are too much to overcome. Assume that a suicide bomber kills a seven month old girl. This victim is obviously innocent, lacking any capacity to infidelity or wicked behavior. Moreover, she would be regarded as a creation of God, the God of Abraham that is supposed to unite Christian, Muslim and Jewish traditions. There is no excuse for the indiscriminant killing of a child of God. Such a suicide bombing can only be seen as a grave transgression. (This does not even consider the possibility that the child might be a Muslim.)

4.) Many of the jihadist leaders are not so much religious zealots ans they are revolutionaries. Zarkawi has more in common with Che Guevarra or the conspirators that assassinated Czar Nicholas II than they do with any of the learned teachers of Islam. There is more anarchy than theology to their thought. Despite the Koranic convolutions, they are opposed to governmental power and perpetual "struggle" moreso than Islamic thought. If Al Zawahiri had been born in the 1920's he would have been a communist, in the 1870's, an anarchist. There is nothing spiritually religious about these people.

5.) The defining feature of jihadist thought is chauvinism. They believe they are special because they are willing to die for their cause or be inhumanly brutal. Other societies have done this much better than the modern radical, but predictably, such characteristics lead to the demise, rather than the flowering of the culures that embraced them.

The problem with judicial activism does not start with with an organized conspiracy to undermine legislative authority. The root of the problem is that judges, like the rest of us, have different ideas as to what the proper role of government is. Even jurists cut from the same ideological cloth can be expected to differ on the details of their role in a representative republic. It is askng too much to expect the judiciary to conform to the opinions of Hamilton, or Madison or Marshall.

Some judicial opinions are obviously infringements on the legislative branch. Federal District Court rulings forcing local governments to raise taxes are good examples, as is the patently legislative trimester framework of Roe v. Wade. Some judges cannot control their tinkering instinct, because they do not see it as improper. Unfortunately, we have no practical mechanism to curb over-reaching by the judicial branch

The media become tiresome in their endless repeating of obvious points, such as that Iraqi elections are scheuled for the end of January, that the "Sunni Triangle" is a hotbed of insurgent activity, and that Abu Mussab Al-Zarkawi is an Al Quaida associate from Jordan. This endless repetition of meaningless facts is tiresome because equally important facts receive virtually no mention at all.

One such fact is that Islamic extremists are not trying to defeat the U. S. Military in Iraq. Their showy, indiscriminate use of explosives are of no tactical value; i.e. they have little chance of disrupting logistics, intelligence, command and control, or allowing the occupation of militarily valuable real estate. The enemy that the Islamists are trying to defeat are not the ones bearing arms against them in Baghdad, but the ones staring at etheir television screens in America and Europe. This is not a war of military strength, but rather one of will. It would be much to the benefit of everyone concerned if the media would repeat, ad infinitum as it does the date of elections, that the adversary that the insurgents seek to vanquish are the viewers of cable news, and subscribers to the New York Times, Newsweek and USA Today.

Another fact to which the media might pay more attention is the notion of asymmetric reporting. We are told frequently that we are engaged in "asymmetrical warfare" in which the rules are different for us and them. But the reporting is equally asymmetrical, and given that the real objective in this war is public opinion, this asymmetry is tactically important.

Every time there is some event that reflects negatively on the coalition, it is repeated endlessly on cable news. We are told what it means, how it effects the "plan" in Iraq, and why it is more evidence of chaos. But just today, two of Zarkawi's associates, supposedly leaders of terror cells, were captured. We receive this information unadorned by the angst, finger-wagging and gloom and doom analysis that accompanies news of Americal travails. We are not told how this might affect prospects for disrupting the planned elections, whether al Zarkawi will have to recruit new lieutenants, or whether organizational secrets of the insurgency might be compromised. We are left pretty much to own our imaginations in determining if this is a good thing or not.

Another fact that we should hear about at least as often as Zarkawi's nationality is how much the insurgency is affecting daily life in Iraq. Are people not working? Is there a mass exodus of refugees to escape the indiscriminant car-bombing? It seems that if Iraqis are resolved to going about their lives, the prospects that those who wish to participate in democracy will do so is pretty good.

Finally, the insurgents are fighting pretty vigorously. This tells us volumes. It tells us that they are threatened, and that they know they are threatened. They can't get on with building the next medeival caliphate, and cow the decadent West with chastising explosions in America, since they know that they will perish and be forgotten if the American enterprise in Iraq andAfghanistan succeeds. They can't be distracted from the mortal fight on their doorstep to pursue other projects abroad. They resort to bombing innocent Iraqis to coerce them because they know they have no hope of ever pursuading them.

The "Seasons Greetings vs. Merry Christmas" controversy, as a matter of First Amendment concern, is rather amusing. Recently the City of Denver had opted to remove "Merry Christmas" from it's annual municipal building holiday display, so as not to offend "Establishment" purists, or the pathologically sensitive. What amuses about this is that people who wail at the display of Christmas are able to sleep at night accepting the present year as 2004. The word "Christmas" is in reference to the birth of Jesus. Merely displaying the name, or recognizing that December 25 commemorates this birth imposes no religious obligations on anyone. The same can be said of our present calendar, as the year 2004 is in reference to the same event observed at Christmas. Graciously acknowledging a sincere "Merry Christmas" is no more a religious observance than including the date on your next check.

I find opposition to the war in Iraq perplexing, and my confusion is illustrated by a single rhetorical question: If you knew that your neighbor was sexually abusing his two year old daughter, would you do anything about it? It seems to me that most people would say "yes," either oout of a sense of abstract righteousness, or sympathy for the plight of an innocent. But Iraq was full of two year olds, and other children of many descriptions who were made to suffer torture and even died under the Hussein regime. The tragic photograoh from Hallabja more than excites an urge to protect innocent children. This is what makes opposition to the war in Iraq puzzling. Any explanation of such opposition that I have heard so far has been unconvincing at best and ignoble at worst. Are Iraqi children somehow less worthy of intervention because they are Muslim? Or brown skinned? No one on earth should be immune from our intervention, if we are able to do so, when they torture and kill children.

The oft cited canard that "We are not intervening in Sudan" or Iran, or the Ivory Coast or wherever is unsatisfying. Not being able to do everything that is right does not make doing what good you can wrong.

Regarding the controversy over the Ten Commandments in Alabama, I think the issue turns on a couple of points. The determinative provision of the First Amendment is not the Establishment Clause but the Freedom of Speech. To the extent there is a conflict between these two provisions it arises from an overly broad interpretation of "establishment." The term "establishment" should be narrowly construed to mean exactly that: officially ordaining a public religion. It should not mean "accommodation" or even "endorsement." The value of the establishment clause is that it prohibits coerced adherence to a religious doctrine contrary to one's conscience. The mere display of religious materials in a public forum does not run afoul of this purpose.
Allowing an expansive interpretation of "establishment" invites the unneccessary entanglment of speech and religious freedom. Prohibiting religious expressions, be they the Ten Commandments or otherwise, is patently a content-based prior restraint. It is elementary interpretation of statutes, rules and constitutional provisions that two that are in seeming conflict will be read, if possible" so that no such conflict exists. In the case of the Ten Commandments this is easily accomplished by recognizing that "establishment" means exactly what it says, and no more.

In considering challenges to our rights, I believe it is helpful to distinguish between human rights and civil rights. Human rights are those that arise simply by the fact of being human. Examples would be right not to be tortured, and the right to have children. Civil rights are those that arise from creation of political entities. Examples of these rights would be right to vote, and right to petition the government.

Of the two, human rights trump civil rights. Human rights do not depend on the existence of a state or of a particular political system for their observance.

While rights are often though of in the abstract as positive, (e.g. right to an education) in practice they involve restraining an external power. (Right not to have someone interfere with your education.) Rights, properly thought of, do not exist as a “freedom” to do as one wishes, but more pragmatically involve what one can get away with. Rights can not be defined in the absence of some power that can limit human action. Rights therefore are not the affirmative assertion of power by the holder of the right, they are the practical constraint on any power that might limit such action.