The Liberty of Equality

(By Andrew MacKie-Mason)

There are some prevalent misconceptions about liberty in American discourse. Some people seem to think that if the government imposes a restriction than the people always lose some liberty (see my writing about that here and here). And now, with a somewhat related argument, John Sullivan of Ohio seems to think that equality and liberty are fundamentally incompatible.

Mr. Sullivan asserts that "the ethics of liberty and equality are fundamentally incompatible. Equality is only realized through totalitarianism and the loss of liberty." He also says, in response to my criticism of him: "You use shallow sophistry through meaningless phrases such as "liberty through equality", etc. ad neauseam. Berlin and many, many others have exposed this usage as rubbish."

So, how can we achieve liberty through equality? As I said before, equality does not guarantee complete liberty. Neither does inequality. Both have their liberties and their oppressions.

We need to start with a good, solid understanding of what liberty is. And even though language is relative, the OED is a good place to turn to for a definition that everyone can agree on. The definition provided by the OED that I think is most general and thus best suited to this discussion is as follows:

The condition of being able to act in any desired way without hindrance or restraint; faculty or power to do as one likes.

If Mr. Sullivan (or anyone) disagrees with this definition of liberty, please put forward one you would prefer.

Equality can provide some forms of liberty because various types of inequality restrict liberty. I'll address, through examples, some of the ways that inequality proves a hindrance or restraint to action.

Economic Inequality

Economic inequality is best understood as an uneven distribution of the various products necessary for human survival or desired as luxuries. At its most severe, economic inequality leaves some people without the means to survive and others with almost unlimited luxury. In the state of inequality, those with less are, in effect, bound to those with more. While the power that the rich exercise over the poor is not the same as the power exercised by a government over its subjects (except where the rich are the government), it is power nonetheless. The rich can restrict how the poor act or force them to do certain things.

Increasing economic equality gives more freedom to those who were previously poor. They are able to do many things (take days off from work, have a choice where they live, educate their children) that they were previously hindered from doing. Critics would be correct in pointing out that it does decrease the liberty of the previously rich. They would no longer be able to do many of the things they previously could: purchase planes, attend the opera every night, throw fancy parties. They do not lose the "freedom to be rich", since wealth is a comparison, not an action taken by an individual. But they do lose the freedom to do many of the things that their wealth previously enabled them to do.

Is this fatal to the argument? Of course not. In fact, it is exactly what was originally stated: equality increases liberty in some regards, and decreases it in others.

Political Inequality

Political inequality is perhaps the simplest example of when inequality can cause a lack of liberty. Properly understood, political inequality is the difference in the ability of individuals to affect the decisions of society. Since humans are naturally social creatures, the operations of society are just as integral to our lives as our own personal decisions. When someone is unable to affect society, they have lost an essential liberty: to act in ways that change how society operates.

And, of course, there's the risk that with political inequality will come political oppression, which restricts other liberties of those lacking political capital. Though not a certain result of political inequality, oppression is still a major concern.

Of course, we see the same trade-off that we did when it came to economic equality: those who had more political strength before will have less ability to act as politics becomes more egalitarian, and those with less political strength will be more free to act. Equality increases some liberties and decreases others.

Liberty in a Totalitarian Democracy

John Sullivan says, "Equality is only realized through totalitarianism and the loss of liberty." In some sense, the first part of that statement is true. Enforcing total equality requires society to have power over (almost?) all aspects of people's lives.

In this general sense, totalitarianism refers only to the breadth and strength of societal powers, not to the other aspects that often belong to totalitarian societies, such as dictators or capricious governmental action. So is totalitarianism synonymous with "the loss of liberty"?

No. Liberty does not refer merely to the ability of the individual to act in any given circumstance exactly how he or she wants to act. Liberty does not demand that their be no rules whatsoever. Liberty is merely the state of being able to act without hindrance or restraint. In an anarchistic society, that action is immediate. Do I kill that man, or talk to him? Do I steal his property, or offer him an exchange for it.

On the other hand, an egalitarian, democratic, totalitarian society provides a different kind of liberty: the ability to be a part of the shaping of a society. Individuals lose the liberty to commit homicide whenever they wish, but they gain the liberty to act in a way that prevents others from committing murder. They lose the liberty of deciding for themselves, but they gain the liberty of deciding for society. Individual choice, instead of being directed towards the immediate, personal decisions, is channeled into the group decision-making process.

Of course, "totalitarian" conjures up images of societies where liberty is almost non-existent. Soviet Russia and Communist China, for instance. But those societies lacked liberty almost because they lacked equality. Though they preached equality, in practice there was a hierarchy as severe (or more so) than the capitalist states they were rebelling against. In an egalitarian totalitarian state everyone would share the liberty of group action.

Is egalitarian totalitarianism possible? Perhaps not. Certainly, attempts at it have failed in the past, though there have not been enough societies that attempted egalitarianism to reach an empirical conclusion. But if it isn't possible, then the problem is that egalitarianism is not realistic, not that equality leads to the loss of liberty.

Is Complete Equality Ideal?

So, if equality can provide liberty, should we strive for complete equality? Not necessarily, since every time we move along the various spectra of equality (economic, political, etc), in either direction, there's a trade off. We gain some liberties and lose others. How to find the optimal point(s) to maximize liberty is an open question. What is clear, however, is that neither complete equality nor complete inequality is characterized by complete liberty or a total lack thereof.

Senate Passes Restriction on Libel Tourism

(By Andrew MacKie-Mason)

The Senate passed a bill by unanimous consent a few days ago that makes it so that, in order to be enforced by American courts, libel prosecutions abroad must comport with American standards of free speech. This is important because it prevents people from suing writers in countries where libel laws are stricter for writers, and then coming to American courts to have those judgments enforced.

It's a good bill, and it was passed unanimously. Perhaps there is hope for this country.

Syria Bans Burqa In Universities

(By Andrew MacKie-Mason)

According to Eugene Volokh, Syria has become the first Islamic country to ban the burqa (the Islamic face veil, not the entire head covering). The justification seems to be that the burqa encourages Muslim extremism.

I'm quite honestly torn on this issue. I have a strong aversion to banning a form of dress in general, as it restricts the freedom of expression of those who wish to dress like that, whether for religious purposes or any other reason.

However, governmental restrictions are not always a limitation on liberty. It is conceivable that widespread donning of the burqa could be evidence itself of a limitation on freedom of expression. Other forces besides government, like social norms, can limit the freedom of individuals. Family members, in particular, can force women to wear burqas through by ostracizing those who don't, the threat of violence (explicit or implied), ridicule, etc. In that case, a general ban on the burqa would prevent one limitation on free expression.

Such a move would require significant justification. The government would need to be convinced that there are a significant number (majority?) of women who are being forced to wear the burqa who would not wear it out of free choice, and that banning the burqa will limit the repression of women rather than just channeling it in a different direction. I (obviously) don't know enough (or much of anything) about Syrian culture, so I don't know whether, in this case, the burqa ban was justified. But, in the abstract, this is where I would stand on the issue.

Toy Story 3

(By Andrew MacKie-Mason)

I've been meaning to write about some of the philosophical implications of Toy Story 3 for a while now. If you object to a cute movie being ruined by considering it in light of what it reveals about various cultural phenomena, you might not want to read this one. I'll put the rest of it below the jump so that you're not sucked in by the words if you don't want to read it.

Context

(By Andrew MacKie-Mason)

Context. Context, context, context. It's all about context.

That's a mantra that may need to be repeated a bit more in the future. The supposed "ClimateGate" scandal was sensationalized by taking statements out of context. Accusations by some progressives that the Tea Party is racist have been based on taking isolated incidents and individuals out of context. The Daily Caller's supposed exposé of JournoList is based on statements taken out context (and a complete denial of access to the context, unlike the hackers who at least gave us all of the context surrounding "ClimateGate".)

And the whole Shirley Sherrod debacle has been almost entirely based on ignoring context. It's ironic, in hindsight, that the post which started it all begins "Context is everything."

So what did happen with Shirley Sherrod? First, Andrew Breitbart, a conservative blogger, author and commentator posted a video clip, which he described as follows:

Sherrod describes how she racially discriminates against a white farmer. She describes how she is torn over how much she will choose to help him. And, she admits that she doesn’t do everything she can for him, because he is white. Eventually, her basic humanity informs that this white man is poor and needs help. But she decides that he should get help from “one of his own kind”. She refers him to a white lawyer.

Here's the video (two and a half minutes):

Watching this, it's easy to think that Andrew Breitbart is right. Shirley Sherrod is clearly a racist: she didn't want to help a white farmer, and merely referred him to one of "his kind." But what does this video lack? Yep, context.

A video with more context was posted by the NAACP and DCTV (Douglas Coffee County Television). I say more before there are two "cuts" in the video, but it's unclear whether those cuts were inserted by the NAACP or by the original filming of the address before it was put on the air.

Here's the longer video. The relevant part starts around minute 16:30 and continues to about 21:30.



As the fuller story plays out, it turns out that Ms. Sherrod's story is one of redemption, not racism. She was approached by a white farmer (many, many years ago) for help saving his farm. However, she was not inclined to help him. She viewed her job as a way to help poor black farmers, not white men. So she directed the man to speak to a white lawyer she thought could help him. And that's as much as Andrew Breitbart would like you to know.

But what happened next is the redemption. The farmer called Ms. Sherrod later, when he was about to lose his farm, and said that the lawyer wasn't helping. So the three of them (Sherrod, the lawyer, and the farmer) had another meeting. And the lawyer, it turns out, had given up on the farmer. Sherrod became incensed at this, and began to work as hard as she could to save that white farmer's farm. And save it she did.

As Sherrod tells it, this incident was not one where she was simply racist: it was the time when she realized that racial resentment was not the correct path. She realized that it was much more important to help people who need help than to just help black people. Far from the video showing deep-seated racism in the NAACP and Ms. Sherrod, it demonstrates a repudiation of viewing situations through the lens of race, proposing instead to look at things through the lens of need.

Did Breitbart edit the video to make it appear that Sherrod was racist? We don't know. He's been accused of it, but he denies it. Instead, he claims that he posted the two clips (one dealt with big government, not race) as he received them. Does it make sense that a source would send him two clips of the longer video instead of the entire video? Perhaps. We just don't know. (It's also possible that the original source didn't act with malice: they might have gotten lazy and not wanted to watch the entire video after they heard the part that was racist. It is, after all, a long video.) Even if he didn't act with malice, Breitbart did act with negligence. As a self-proclaimed journalist, it is his duty to fully investigate the context surrounding his stories and report on them accurately.

But even after seeing the full video, Andrew Breitbart hasn't changed his stance. For instance:

“The desire here is to make it about me and not the Democratic establishment and the NAACP vs. the tea party,” Breitbart said, defending the footage he posted as “a self-contained newsworthy video that established the media standard of pointing out that the NAACP countenanced racism in its own award dinner setting. That was the point. That was the point. And the video proves it.”

Of course, Breitbart wasn't the only one launching contextless attacks on Shirley Sherrod. For instance, see Bill O'Reilly fessing up to attacking Shirley Sherrod unjustly:



Or, instead, you can look to the Fox News Politics (as in, supposed "news," not opinion from a commentator) story early in the Sherrod debacle:

...a video has surfaced showing an Agriculture Department official regaling an NAACP audience with a story about how she withheld help to a white farmer facing bankruptcy -- video that now has forced the official to resign.

Shirley Sherrod, the department's Georgia director of Rural Development, is shown in the clip describing "the first time I was faced with having to help a white farmer save his farm." Sherrod, who is black, claimed the farmer took a long time trying to show he was "superior" to her. The audience laughed as she described how she determined his fate.

Of course, it's not only Breitbart and Fox who messed this one up. Both the NAACP and the Obama Administration jumped to the same conclusions, the former condemning Sherrod's remarks and the latter forcing her to resign.

The entire thing was a debacle, demonstrating some of the flaws of the 24 hour news cycle. But its greatest lesson should be a desire for context. If there's an inflammatory story...look into the context before you post it.

I should note that according to Van Jones, previously the target of many a Glenn Beck (crazy) accusation, Beck actually treated the Sherrod story with some respect. He waited for the context, he even asked for the context. Of course, since then, Beck has tried to defend the entire Fox News network, even those guilty of rushing to judgment, and place the blame entirely on the NAACP and the White House. But for what part he played in urging the country to look for context, Beck deserves our thanks.

Context, context, context.

Thomas: Principled or Extreme?

(By Andrew MacKie-Mason)

I'm catching up on some old issues that I wanted to blog about, based on what still catches my eye. Josh Blackman had a post about a month ago about statistical evidence that Justice Thomas was the most likely of the justices to write a lone dissent (in 8-1 or 7-1 cases). Blackman suggested that this data supported the claim that Thomas is the most principled justice. It could, however, be equally supportive of the claim that Thomas is the justice furthest outside the mainstream. Contrary to the claims of individualists and counter-culturalists, it is possible for mainstream people to be principled. And it would not be surprising that a group of principled people within the mainstream would often agree.

Also, Blackman seems to be ignoring the possibility that some of the Justices could see institutional legitimacy and unanimity as principles worth protecting. In fact, he seems to illogically deny that fact that pragmatism can, itself, be a principle.

Shapiro on Kagan

(By Andrew MacKie-Mason)

I'm continuing to catch up on some blogging material that I let lie around getting dusty. This one is a post by Ilya Shapiro at the Cato Institute towards the end of June, criticizing Elena Kagan. I disagree with many of Mr. Shapiro's points, and I'll do my best to address them.

• Kagan refused to identify anything the government couldn’t do under its Commerce Clause power. She recited over and over the limitations the Lopez and Morrison cases give, the power to regulate interstate commerce doesn’t extend to non-economic activity or that traditionally subject to state prerogative, but she refused to tell Senator Coburn that his hypothetical bill requiring Americans to eat fruits and vegetables was unconstitutional. “Dumb,” sure, but perhaps worthy of the deference to the political branches that she hailed again and again. Nor did she offer her own examples of unconstitutional bills.

Creating hypothetical situations in which a principle does not apply is at times a valuable academic tool, but it is not a part of the judicial role. Judging involves applying real law to real situations, and General Kagan was right to avoid creating a hypothetical situation. If she had, there's a good chance it would have been missing an important nuance that would exist in a real case and change the outcome. Also, note that while Mr. Shapiro seems to be suggesting that General Kagan implied that the Commerce Clause has no boundaries, she did no such thing. In fact, she cited (approvingly) cases that did place limits on the Commerce Clause in the past. She simply declined the opportunity to attempt to create hypotheticals about future cases, a very judicial answer.

• I’m disappointed but not surprised by Kagan’s position on use of foreign law. Yes, it’s never binding and, of course, you should use it in evaluating international treaties and conflicts of law situations, but it’s simply irrelevant to interpreting the U.S. Constitution. Yet Kagan consciously left herself plenty of breathing room to cite foreign law inappropriately.

I don't recall General Kagan's specific statements about international law, but in general international law can, in fact, be relevant to interpreting the United States Constitution. Where judges are presented with a tough question on American constitutionalism, looking to how foreign legal systems have resolved that question can provide useful, non-binding suggestions to American judges.

• Finally, and I will be going over this section with a fine-toothed comb, in an instructive dialogue with Senator Coburn, Kagan disclaimed the idea of natural rights — looking pained at times to even understand what they are. “Does the Constitution give us our rights, or do they pre-exist government?” Coburn asked. Kagan evaded. “What about the discussion of the ‘inalienable rights’ in the Declaration of Independence?” he pressed. Kagan denied that the Declaration of Independence had anything to do with the role of a judge. This is sad, really, and ironic given that we’re heading into the Fourth of July weekend.

It's fascinating that Mr. Shapiro would disclaim the use of international law in American judging in one breath, and in the next endorse the use of the Declaration. The Declaration is not an American document, it is a British one. It speaks to the political situation of the colonies in the times leading up to the Revolution, but beyond the same advisory, inspirational role that international law has in the Supreme Court, the Declaration really does have no place in judging.

That's especially true if the discussion was centered around natural rights. While an interesting philosophical question, natural rights are irrelevant to judges, whose institutional role is to protect those rights granted by the Constitution (and defend the Constitution in other ways). Natural rights are not a source of judicial authority.

Is More Knowledge Always Valuable?

(By Andrew MacKie-Mason)

I find myself commonly assuming that increasing the knowledge base for a decision always leads to a better result. Of course, it may not be worth it: rational ignorance suggests that at times the benefits of obtaining more knowledge don't outweigh the costs of gathering the additional information. But is there more to it than that? Can there also be a type of rational ignorance based on the assumption that more information leads to a worse result?

I tend to recoil from that idea, but I can't rationally explain it away. Particularly since we'll never have perfect information, more information may just skew us away from the correct result, rather than towards it. Fr. Robert Araujo, SJ, seems to be suggesting as much. But how do we recognize those times when more information will be helpful, and those when it will be disastrous?

Thoughts?

The God of Competition

(By Andrew MacKie-Mason)

There's always a danger that intellectuals will latch on to one idea, be it a method of analysis, a philosophical justification for actions, or an aspect of the free market, and use that idea to solve every problem. They become, in effect, one trick ponies.

And for many "free market" academics, that trick is competition. Have a problem in the market? We don't need to develop a solution, we just need to make there be more competition!

Before I continue, I think I need to clarify a major myth about competition:

• Competition does not lead to the "best result". In a perfect world, it leads to an equilibrium point between cost and revenue that effectively makes quality and quantity produced as high as people are willing to pay, in relation to how much it costs for the manufacturer or supplier to produce the product. In that sense, the price is leads to is, by some definitions, "best". But a purely competitive market ignores any other factors that would go into an ordinary definition of "best result".

The issue of over-reliance on competition to solve problems was most frequently evidenced by Ilya Somin at the Volokh Conspiracy. In a post discussing whether universities should do away with tenure, Mr. Somin acknowledges that we would need a system to replace tenure. But, because he doesn't want to have to design that system, he mostly gets out of it by saying:

Tyler also makes the reasonable point that before we abolish tenure, we need to think carefully about what the alternative system would look like. There may not be any one system that would be best for all institutions. Competition and experimentation could lead to useful innovations.

The interesting thing is, competition and experimentation have already lead to a useful innovation. It's called tenure.

There's no anti-competitive force that requires universities to offer tenure to their faculty. It's simply a contract between universities and the people they hire, and it continues to exist because it provides a significant benefit to the professors (that makes them want to take the job) while costing less for the university than raising salaries or other benefits to compensate for the loss of tenure would. So, if competition and experimentation are Mr. Somin's suggestions, tenure is probably where we'll end up again.

Mr. Somin misuses competition as a solution because he's forgotten what it's good at. And that's understandable: he's put a lot of time into arguing for the benefits of a free market and such that he wants to apply those principles to every problem. But the fact is, competition is good at reducing inefficiency and making sure the right amount of a product is created. But that's not what's wrong with the tenure system.

The primary objection to tenure raised in Mr. Somin's post is based on the principle of academic freedom. That's a legitimate complaint, but it is not one that can be solved with competition. Free markets do not take into account values like academic freedom. They take into account economic forces.

Competition has its uses. But they are limited, and we shouldn't look to it as the solution to every single one of our problems.

Is Language Relative?

(By Andrew MacKie-Mason)

I was listening to the radio today and they were talking about "non-words". One woman, complaining about "irregardless", said "it's just not a word. Come on, people!"

That got me thinking: what is a word? I came up with the following definition, so please tell me if you think it works:

A word is a collection of sounds which has a meaning as part of a language.

Of course, in a way, that just puts off the question. What is a language? I would propose:

A language is a collection of words that can be used to convey a large range of meanings.

In a way, these two definitions may seem circular, but they're not, if we can accept the relativistic nature of language: that is, if a language is relative to the individual. Then, if someone thinks that a collection of sounds has meaning, and if that collection of sounds is itself part of a supercollection, then there is a word and a language.

So how can we talk about "English" or "Latin" or "Arabic"? I would propose, if you will, a "linguistic fiction". There is no such thing as English, because there is no authority that can define a "superlanguage". However, it is convenient to group a lot of similar (individual) languages under the heading of "English", for the simple reason that those languages are similar enough that most "English" speakers can understand each other, at least decently.

So is irregardless a word? Yes, it is a collection of sounds that has meaning (to many people, I suspect). Is it a word in the linguistic fiction of the English language? Perhaps not, but the answer to that question is far from clear.

So, does this all mean that there's no reason to speak (or write or spell) correctly? After all, if language is all relative, then everything is correct, right? Wrong.

That's a common misunderstanding of relativism. The fact that language is specific to the individual doesn't mean that there's no reason to strive for using the fictional correct English language.

Correctness in language (and spelling) is a good way to get an initial impression of the quality of writing. It's a time saver: if we don't have time to read everything, quality writing can help lead us to quality ideas. It's not a perfect indicator: many people with good ideas can't write, and many good writers have no ideas. But even without being perfect, it's a good first estimate of how good a piece of writing is to see how close it stays to the fictional English language.

Rape by Fraud

(By Andrew MacKie-Mason)

Eugene Volokh reports on an interesting Israeli case in which a man was convicted for rape by fraud. Basically, a man convinced a woman to sleep with him by telling her he was Jewish, and she testified that she would never have slept with a non-Jewish man. The sex was otherwise consensual.

According to Professor Volokh, this wouldn't constitute rape under the laws of most (or all) American states. What do you think? Is there a point at which obtaining sex by fraud should be criminalized like obtaining property or other things of value by fraud? And if there is, how should fraudulent rape compare (in terms of punishment) to forcible rape or statutory rape? Should people convicted of rape by fraud be registered as sex offenders?

I'm not sure where I stand on this: thoughts?

Republican Candidate Subtly Bashing Palin?

(By Andrew MacKie-Mason)

The New York Times has a story about Sarah Palin's involvement campaigning for and endorsing (Republican) candidates in the 2010 midterm elections. The story has one quote that I found particularly amusing:

“Sarah Palin has come on board,” the candidate, Karen Handel, told a group of supporters who gathered Friday on the grounds of the Gwinnett Historic Courthouse. As they broke into applause, she added: “It means one thing. We’re winning.”

Assuming that the NYT quoted Ms. Handel correctly, did the candidate mean it the way it came off? That, in essence, Sarah Palin will throw her support to whatever candidate is winning? It's not surprising, but if that's what Ms. Handel meant to say it's a rare admission of raw political calculation by the beneficiary of that calculation. I would have expected something more along the lines of "it means one thing: we're planning to take this country in the right direction."

Of course, Ms. Handel could be trying to predict the outcome of Ms. Palin's endorsement, rather than the reason for it. (The way she's quoted seems to suggest she's speaking of the reasoning, but context could tell a different story.) That, though, seems worse. Condescending to Republican voters, if you will, to think that they are so fickle that a short endorsement (on Facebook) by Ms. Palin will be enough to carry Ms. Handel to victory in the primaries.

So, what do you think? Is Ms. Handel saying that Ms. Palin carefully selects winners to support, or that Republican voters are blind sheep who will follow Ms. Palin's every lead? Or is there some other equally obvious interpretation that I'm missing?

Climategate? Nope

(By Andrew MacKie-Mason)

This is old news by most standards, I know (more than two weeks!) but I still thought I should highlight it here.

"Climategate" Leak Report Vindicates Scientists (CNN)

There are some minor criticisms based on an unclear graph and being more defensive than they should have been, but the bottom line is that none of their science was in question.

Perhaps people trying to make a scandal out of JournoList should look to the report that emerged from the last time people released private emails and tried to turn them into more than they were?

JournoList

(By Andrew MacKie-Mason)

This is going to be my effort to cover the controversy about JournoList. Bear with me, as there is going to be a lot of information to parse and I might still be figuring out exactly where I stand as I write.

First, the basics. JournoList was a private email group of self-identified liberals, with various levels of affiliation to the media. Some of the emails were obtained by the Daily Caller (a conservative blog site) and it has posted a culled selection of emails that it deems most embarrassing to those involved. I'm going to go through some of the conversations it posted, and then some other conservative commentary on the issue.

Because this promises to be very long, I'm going to put it under the jump, so as to save space on the blog's front page. RSSers or Buzzers, if you can't see anything after this point, try viewing this post on the original page.

Oversight

(By Andrew MacKie-Mason)

Oversight is one of the crucial aspects of a democratic system of governance. The people oversee the government and the government watches the people. Congress and the President scrutinize the military, and the courts keep a close eye on Congress and the President. Agencies oversee industries, and Congress oversees agencies.

Of course, that all works great in theory. But it breaks down when we (as individuals) are the ones being watched over. Everyone likes to think that they are perfect, they know what they're doing...and if you're not them, you have no right to tell them what to do. It's a very natural and understandable position, but it's also almost always misguided.

I was reminded of this attitude most recently on a cop blog I read. In a post titled "Civilian Review Boards," "MC" (Motor Cop) derides the idea that ordinary citizens are capable of providing oversight to a police department. He says:

You wanna Monday morning quarterback me? Go to the Academy for the five/six month training and learn what it's like to do my job. Get some experience. Walk a mile in my boots. One of my biggest pet peeves is listening to talking heads or, worse yet, random people on the street that the media interviews talk about how the job should be done. I don't have an issue with people asking questions in an effort to educate themselves (obviously...that's why I have the Ask MC posts), but making judgements about what was done based on a very short cell phone video clip is ignorant...

There is a reason every department has an IA division (Internal Affairs). Those folks are cops. They've done the job. Are they well liked? Not typically; however, I'd rather be judged by them than by a civilian with no policing experience. I'm not looking for a break from IA because we share the badge, but at least I can be confident that they know what my job entails.

In other words, we civilians aren't cops, therefore we are completely unqualified to pass judgment on whether a cop did the right thing or not. We should let the cops police themselves, through "internal affairs" investigations. And nothing could possibly go wrong. Trust them.

This attitude is also evident in many of the comments on the post. "Jackie" says:

I have to agree that the public at large has no clue how policing really works, they rely on TV shows and other forms of entertainment to tell them "how it is". A a member of the "General public" I freely admit to being clueless as to certain aspects of policing. I've been lucky to have numerous LEO's in my life, so I like to think that I know slightly more than your average Joe I still wouldn't sit on a review board as I know I wouldn't have enough knowledge to accuratly judge police on their actions.

"Lin" says:

This is totally absurd. They should let IA take care of police involved incidents, that's what they're there for.

"Candi Apple" says:

It's one thing for civilians to be in a position where they can ask questions and find out why things are done as they are, another for them to decide how police should do their job. Haven't done it, not in the position to judge it.

"Ann T." says:

Because, no. No civilian is going to understand it. I'm trying, myself, but it's just a pale inkling in a very shadowed world.

"Jay" says:

I don't think someone without experience in policing can sit in judgement. Leave it to the internals. It may not be the perfect solution because there is no perfect solution, but it is probably the fairest.

This type of thinking is ridiculous. It implies that you need to experience a job in order to have an opinion about it. But reviewing a situation in the past is an entirely different skill from dealing with that situation. A good cop can deal with a stressful shootout in a professional and appropriate manner. But does that mean they'll be good at deciding whether the department's policies for such a situation are appropriate? Not necessarily. They're almost completely separate activities. One requires quick thinking, calmness in the face of danger, etc. The other requires rational thought, the ability to think through possible scenarios and compare likely outcomes, detailed cost-benefit analysis (as opposed to an instinct for on-the-fly CBA), etc.

Ordinary people have legitimate opinions about what is proper and humane treatment of prisoners in war, even though they have never been soldiers. They can criticize the President, even though they have never run the country. To borrow MC's example, they can evaluate the work of various plumbers and decide which one is the best to hire for a job.

Going too far in either direction (towards civilian oversight or internal oversight) is, of course, dangerous. A certain level of expertise in at least some of the oversight is obviously necessary. Experience and technical knowledge allow leaders to make decisions based on information unavailable to the average person. However, complete internal oversight brings up issues of (understandably) cops favoring other cops (and other public safety professionals) and finding their behavior more excusable than identical behavior by civilians. For example, see MC's own post (among others about professional courtesy), or this post on "Not Guilty" about a cop arrested for possessing a huge amount of child pornography.

But no one, to my knowledge, is suggesting complete civilian control of the police. Merely civilian oversight, among many other professionals with leadership roles in the police. Are there times when professional experience is necessary to fully understand a situation? Certainly. But are cops the one inviolable profession that shouldn't have to put up with any external oversight? Of course not.

WSJ Roundup 7/22

(By Andrew MacKie-Mason)

Yesterday's Wall Street Journal opinion section (July 22, 2010) has so many things that I want to respond to that I decided it would be easier to do it in one round-up post rather than a full post per WSJ item (I'm going to address the article about JournoList in a separate post, since that is a larger issue.) So, here goes. (Note: Links provided are to Google News searches that should give you the article as the first result. Direct links to the Wall Street Journal only provide truncated previews.)

"The Liberal Dilemma" by Daniel Henninger (A17)

In this piece, Mr. Henninger bemoans the fiscal situation of many states with regard to their obligations to public sector employees. He points specifically to teachers' unions, and suggests that the Democratic Party is in bed with unions because of their contributions. He also suggests that this is proof that the liberal vision of government doesn't work. And then, most oddly, he suggests it would be monumental for a Democratic President to veto a spending bill by a Democratic Congressman that cuts funding from education.

There are a few major issues with Henninger's arguments. First, the correlation of contributions from teachers' unions and Democratic support for teachers does not tell us how the causality works. It is just as likely that unions support Democrats because Democrats support unions as it is to be the other way around. This is, after all, the way monetary politics works: people support with money the people who agree with them politically. That's not corruption, and it doesn't imply some quid pro quo different from what the politicians would support anyway (unless Mr. Henninger would like to disavow the Supreme Court's recent decision in Citizens United).

Second, the fiscal crises of many governments in the past few years is not some proof that liberal governance is broken. In fact, most of the fiscal problems are attributable to the recession, which is (arguably) due in large part to conservative governance policies. Henninger attempts to push the recession issue to the side, but his argument on that point fails.

Third, support for public sector unions is not truly a Democratic/Republican (or even liberal/conservative) issue. It's true that many Democrats are supportive of many public sector employees, but so are Republicans. And there are many Democrats and liberals who think that public sector employees have caused problems. Either way, support for public sector unions is not as central to the liberal vision of governance as Mr. Henninger tries to suggest it is.

Letters to the Editor (A18)

Dave Glenn of Washington's Letter (no online version available)

Mr. Glenn feels the need to complain about the "saved jobs" metric often referenced by the Obama Administration when talking about the economic recovery. According to Mr. Glenn, this is ridiculous. "Comparing actual, disappointing results to worst-case results is distracting spin and those in the White House with backgrounds in finance and economics–Lawrence Summers, Christina Romer and Timothy Geither–surely know it."

However, comparison to worst case results is part of a useful analysis of a presidency, and comparison to the past is basically useless.

If we had no President, employment would still be in flux. Other forces affect the number of jobs, and so judging a President's performance against net jobs gained or lost is a lazy, useless form of analysis. It tells us absolutely nothing about the President, because there's no control.

Comparing the results to what could have happened in other circumstances, though, is useful. This is where the saved jobs come in. If we can agree on a relevant baseline (i.e. the lack of certain new, identifiable policies or programs, etc) then the difference between that baseline scenario and what actually happened can be a useful tool in determining if those policies or programs were a good idea.

Is there one number of "saved jobs"? No. It's all relative to the baseline you compare it to. And there are many, many different available baselines: what would have happened if we did this instead of that? Instituted program A instead of agency B? Taxed G instead of H? All of those are useful. Some of the hypotheticals will turn out worse than what actually happened (does anyone really think Obama did the worst possible things?) and some of them will turn out better than what actually happened (does anyone really think Obama did the best possible things?).

The point is that there are many different points of comparison that can be useful, but net gain/net loss is probably one of the least useful forms of analysis. The administration has found a baseline that they think is useful, and from it has derived the saved jobs number. If you don't find their baseline useful, that's fine. But that doesn't mean it's not a useful method of analysis.

Stephen V. Gilmore of North Carolina's Letter (no online version available).

Mr. Gilmore writes:

People are hired only when they contribute toward business's [sic] profitability. If the only reason they are hired is because the employer is bribed (in the form of a stimulus) to hire them, then the "job" that they are hired for isn't a real job.

To believe that government spending "creates" jobs is the real "voodoo economics.

However, this entirely misses the point of…well, basically everything about economics.

Money flows in the economy, and jobs are created, when one person has something that other people want. And the more money is flowing, the more people can buy, and thus create more jobs. Government stimuli do not just pay the salaries of people who do nothing and just pretend that those people are actually employed. They create more opportunities for work, which ends up creating more capital, since more people are being productive. These jobs are, in every sense of the word, real. People are doing work that other people find valuable, and getting paid for it.

"Mao Was a False God for the French" Letter by John Sullivan of Ohio (no online version available)

As part of a critique of a book, Mr. Sullivan attempts to argue that Jean-Jacques Rousseau is not interested in liberty, but instead in equality. Actually, Rosseau was interested in liberty through equality. Rosseau envisioned an egalitarian society where membership involved giving up some liberties, but also receiving many others in return. Mr. Sullivan claims that "the ethics of liberty and equality are fundamentally incompatible. Equality is only realized through totalitarianism and the loss of liberty." Au contraire, Mr. Sullivan. Equality merely changes the face of liberty. Some liberties guaranteed by equality are denied by inequality, and some existent with inequality are denied by equality. But to say that equality is only possible without liberty is to confuse equality with homogeneity.

"Son of Cap and Tax" (A18) and "Why the ObamaCare Tax Penalty Is Unconstitutional" (A19)

This is a shout out to the opinion editors of the WSJ, not the individual writers, since the editors (I believe) choose the titles of pieces. As I've written about before with ObamaCare, epithets like these ("Cap and Tax" and "ObamaCare") demonstrate an inability to confront an issue squarely on the merits. The WSJ seems to be embracing a denigration in the level of political debate and seems to be more comfortable using cleverly crafted words to get emotional responses than using cleverly crated arguments to get rational support.

"Why the ObamaCare Tax Penalty is Unconstitutional" by J. Kenneth Blackwell and Kenneth A. Klukowski

First, a note: while I criticized the WSJ editors for the title, it is not fair to pass that criticism along to the authors. As far as I'm aware, they do not choose the title of their pieces. However, it is fair to criticize the authors for their use of "ObamaCare" in the piece (last word.) In fact, throughout the piece they use other, more legitimate labels for the group of legislation, which demonstrates that there are, actually, other ways to word it. Their use of "ObamaCare" in the closer is then clearly a rhetorical move lacking in analytical significance.

The focus of this piece is the Justice Department's recent decision to defend the new health insurance mandate through the federal government's taxing power. Mr. Blackwell and Mr. Klukowski seem to be implying that the tax rationale is the only reasoning the Justice Department is using, but as Jack Balkin points out, it is only one aspect of the Justice Department's defense of the bill: even if the tax argument fails, the bill is still constitutional under the Commerce Clause, in conjunction with the Necessary and Proper Clause.

Blackwell and Klukowski identify four types of taxes that are constitutionally allowed. While I do not necessarily concede that these are the only valid categories of taxes, I am willing to assume arguendo that they are correct on this point. [UPDATE: Jack Balkin, a premier constitutional scholar, disagrees with Blackwell and Klukowski on this point.] [UPDATE: As does the text of the Constitution, which gives Congress the power to "lay and collect taxes, duties, imposts and excises" (Article 1, Section 8) as well as income taxes (Amendment 16)]

Their categories are: duties (taxes on imports), excises (tax for the privilege of doing something, such as purchasing a product, service, or certification), direct tax (on individuals, apportioned based on the census) and income taxes. After defining the categories, Blackwell and Klukowski simply deny that the health insurance mandate penalty fits any of them. Let's examine that claim.

I will not attempt to defend the mandate as a duty or direct tax (UPDATE: although Jack Balkin defends it as a duty here). That is not to say that it fits neither of those, but merely that I would prefer to address the excise and income categories, where I feel I have a better grasp of the relevant factors.

Section 8.1 of Article 1 provides for the general taxing power:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States.

People who do not have health insurance subscribe to publicly available services to compensate for that, be it emergency rooms or other government supported programs. The health insurance mandate penalty can then be viewed as an excise tax on those services: in order to take advantage of those public goods, you must pay a tax. The only restriction on excises, it seems, is that they "shall be uniform throughout the United States." And this is true with the health insurance mandate penalty: you won't have to pay more because you live in New York rather than in Texas. It is uniform throughout the country.

The Sixteenth Amendment provides the federal government with the power to tax incomes:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.

I fail to see how the health insurance mandate couldn't be viewed as a tax on income, with an exemption for those who have health insurance (similar to income tax exemptions for charitable donations and the like.) Would someone who disagrees care to explain how the income tax defense does not work?

The health insurance mandate penalty is constitutional, both as an exercise of Congress' taxing powers and (what I think is the stronger argument) as a necessary and proper aspect of a bill regulating interstate commerce.

UPDATE: You should really also read Jack Balkin's criticism of this same article, as I can't hope to stand up to his knowledge of the constitutional tax provisions.

"The Vast Left-Wing Media Conspiracy" by Fred Barnes and "Notable & Quotable" (A19)

I know I said I would leave the first of these articles for a later post, and I will, on the substance. However, there's one point from this article that ties in with a quote from Dennis Prager in the "Notable & Quotable" section that I thought was worth mentioning.

Both accuse liberals of misusing and overusing criticisms of racism. Mr. Barnes:

What was particularly pathetic about the scheme to smear Mr. Obama's critics was labeling them as racists. The accusation has been made so frequently in recent years, without evidence to back it up, that it has little effect. It's now the last refuge of liberal scoundrels.

Mr. Prager:

The charge of racism leveled by liberal organizations, whether black or white, is now regarded as the politically motivated falsehood that it is. it is rightly seen, along with its six siblings...as the Left's way of avoiding argument by demeaning its opponents.

As with most times that identifiable partisans say that "only the other sides does this," this is patently false. But it's particularly ill-timed, seeing as how it follows directly on the heels of a conservative blogger posting a deliberately manipulated clip designed to pull comments out of context and smear a hardworking government employee as a racist (with the help of Fox News).

So, that's it. One day in the opinion section of the Wall Street Journal. Maybe I should make a new blog solely dedicated to doing this every day.

What is the Senate?

(By Andrew MacKie-Mason)

There has been some talk among various conservatives about the possibility of repealing the Seventeenth Amendment, which mandates popular election of US Senators. Prior to the Seventeenth, states could decide whether their Senators would be chosen by popular election or by the state legislatures. For the discussion of this possibility, see the Volokh Conspiracy (here, here, and here), the States' Liberty Party and the Tenth Amendment Center.

All of this started me thinking: what is the Senate? Why do we have it?

The first answer to that question is historical. At the time of the founding, most Americans associated strongly with their colony (soon to become state), but felt less allegiance to the union of states. If the new nation was to survive, it would have to be accepted, not only by the people as a whole, but by the states. And part of acceptance by the states was the insurance that they would all be fairly represented. Thus, we got a compromise: the House of Representatives, dominated by the large states, and the Senate, giving disproportionate representation to the small states.

The next justification for the original structure of the Senate is federalism. Where the House of Representatives portrays the United States as one joint nation, with equal representation for all citizens, the Senate is a reflection of American federalism. It is the representative of the states within the national government, and for that reason senators were originally chosen by state legislatures. The Senate, supposedly, gives the states power in Washington and provides a balance between state and federal power.

The final part of the Senate's character is its position as the upper house. It is the more mature house in Congress' bicameral structure, meant to be wiser and more removed from the politics of the day. Its members are selected in batches, so that no political movement can sweep the entire Senate in one election. Senators sit for longer than congressmen, and they have higher requisite qualifications. Debate in the Senate is less structured than in the House, out of respect for the higher prestige of its members.

So, acknowledging these characteristics of the Senate, what can we say for its future? Is repealing the Seventeenth Amendment the way to go? Is that what the Senate needs in the twenty-first century?

Personally, I don't think so. Federalism is on the way out, due to the natural evolution of human politics. As we evolve, we form bigger and bigger networks, and states are just too small to be legitimate sovereign entities any more. The myth of the sovereign state (after all, very few of the American states have ever actually been sovereign) is making less and less sense as time goes on. As travel between the states becomes easier, it makes less and less sense to give more representation to those who chose to live in small states. As state boundaries mean less and less, the Senate looks more and more arcane for sticking to them. Federalism is not the way of the future, and repealing the Seventeenth Amendment is a step backwards, not forwards.

Instead of focusing blindly on the state-based past of the Senate, we should look at strengthening the Senate in other ways, through attention to its status as the upper house. While making the Senate a body based on equal representation, we should also try to secure it as the more removed, prestigious body in Congress.

This can be accomplished through a combination of various methods, including:

• Make the Senate elected by districts of equal population (so as to provide for equal representation) but also smaller. As states have been added to the union, the Senate has become too large for itself. A body of 50-80 members would be able to perform the Senatorial role much more effectively.
• Require that candidates have a certain number of years of legislative service (in a state legislature or the House of Representatives) before running for a seat in the Senate. This would secure the Senate's position as the upper house, and ensure that its members were seasoned legislatures, fit to be in a body more insulated from popular pressure. The Senate must, by its nature, be more independent of the people, so we should be sure that its members have the requisite expertise to be there.
• Make the Senate a non-partisan body. This would involve not including party affiliations on the ballot, discouraging party caucuses by limiting their power, reshaping the committee system, etc. It's a daunting proposal, but well worth it: partisanship is valuable in the lower house, but it degrades the level of debate in the Senate and makes the Senate into a mere replica of the House of Representatives.
• Reshape the rules of debate in the Senate. Encourage more open and direct discussion between members (as opposed to mere prepared statements read to the chair). Going along with making the Senate a non-partisan body, party leaders should not control the debate, the focus should be on individuals. Unlimited debate (filibusters) should be allowed, but it should be required to be actual debate, not parliamentary obstruction.
• Make Senate elections on off-years in order to insulate them from the political frenzy accompanying Presidential and House elections. In other words, there would be a Presidential and House election in 2012, followed by a Senate election in 2013, followed by the House in 2014, the Senate in 2015, and then the President and the House in 2016, and so on. This would increase the number of elections, but it would also help ensure that those who chose to vote for Senate were more interested and informed. It would also make the Senate more clearly distinct from the House and President, holding a special place on the electoral calendar. Also, because only a third of the Senate would be up for election every two years, it would add at most two more elections for each individual in any given six years.

I'm sure there are other ways to emphasize the status of the Senate as the upper house and minimize the importance of historically valid but outdated federalism elements of the Senate. If you have more ideas, let me know. The point, though, is that the federalist nature of the Senate is deadweight. It was once valuable, but it now only contributes to the problems facing the Senate. The future of the Senate should be decided with awareness of the past, but also of the challenges of the present and the goals of the future.

Conscience, Free Will, and Absolutism

(By Andrew MacKie-Mason)

I haven't been blogging in a while, but I've been following a bunch of interesting discussions, including a debate at Mirror of Justice about relativism and absolutism. Last Monday, Professor Robert George (Princeton) made an interesting contribution to that debate. He posted notes from a commencement address about what conscience and "freedom of conscience" really are.

He starts off by distinguishing between conscience and self-will, and here I agree with him. Self-will is a permissive force, allowing us to do what we wish. Conscience is, in contrast, a restrictive force, constraining what we may do or commanding us to take certain affirmative actions. That, though, is the point at which I think Professor George's argument starts to fall apart.

Unless I am misunderstanding him, he seems to make two other points: that freedom of conscience is incompatible with a relativistic moral system, and that freedom of conscience in a society should be understood as adherence to a certain moral code, not as a permissive grant to do what a certain person feels is commanded by conscience.

Freedom of Conscience in a Relativistic World

Professor George writes,

Of course, if relativism were true, there would be no grounds for such claims [about freedom of conscience], which is, perhaps, the first thing that Christian intellectuals ought to point out in engaging the wider intellectual culture. If people have rights, and they do; if respect for conscience is important, and it is; then it cannot be because there is no such thing as moral truth, or because all truth is relative. It must be, rather, because as a matter of strict, non-relative moral truth people do have rights, and among these is the right to freedom of conscience.

The reason that he comes to the conclusion that freedom of conscience is incompatible with relativism (the theory that morality is relative to the individual, and there are no absolute moral truths) is rather simple: he starts with a false premise. His understanding of the justification for freedom of conscience is inherently absolutist, and so of course, with that definition, relativism can never dictate freedom of conscience.

However, freedom of conscience as a policy is perfectly coherent with relativism. If, as relativists believe, moral truths are relative to the individual, then it makes perfect sense to give individuals great latitude to follow their conscience. Not because it is inherently good for people to be able to follow their conscience (after all, that would itself be absolutist, as Professor George would rightly point out) but because there would be no justification for limiting freedom of conscience. Limits on freedom of conscience depend on placing one conscience above another, which is fundamentally inconsistent with relativistic thought.

Properly understood, freedom of conscience does not need to rest, in a circular manner, upon the absolute morality that it upholds. Instead, freedom of conscience can be recognized under relativistic thought because there is no relativistic justification for limiting it.

Freedom of Conscience Is Not A Command

In his post, Professor George seemed to argue that freedom of conscience should be understood as a command in the same way that conscience itself is a restriction on action. In other words, the duty of society to secure free conscience extends only as far as protecting those whose understanding of conscience is "correct" and correcting those whose understanding of conscience is "wrong."

Even if we accept an absolutist moral framework (the idea that there is a single moral truth), Professor George's understanding of freedom of conscience is a dangerous one. He writes:

At a time when public officials, supported, in some cases, by prominent theologians and religious leaders, appeal to "respect for conscience" in rationalizing their advocacy of legal abortion, euthanasia, damaging and ultimately deadly embryo experimentation, and policies that promote sexual immorality and undermine the institution of marriage, we would do well to recall the teaching of St. Paul, who in his Letter to the Romans speaks of a law known even to the Gentiles, who have not the law of Moses, because it is written on the hearts of all men—the "natural law" which, though illumined by God's revelation, is accessible even to unaided reason.

It is this law which binds in conscience all of us—Catholics, Protestants, Jews, members of every faith and even those without faith—not simply to refrain from taking innocent human life but to avoid the injustice of supporting policies which, for example, deprive the unborn and frail elderly of the protection against wrongful killing to which every member of the human family is strictly entitled, or policies that promote sexual immorality and weaken the institutions of marriage and the family. The moral prohibitions of abortion, euthanasia, and sexual misconduct are examples of the "negative" norms of the natural law which apply always and everywhere to everyone alike.

Unless I read him wrong, what Professor George is saying is that freedom of conscience (or "respect for conscience") can only be used as a justification for policies that support the correct understanding of morality.

Freedom of conscience, though, is based upon the premise that (even if there is an absolute moral truth) no human authority can properly determine that morality. And even Catholics who believe that there is an earthly power with complete authority on morality should recognize the danger of advocating absolutist moral government. After all, Catholicism never could have spread in America without a liberal (as opposed to restrictive) understanding of "freedom of conscience."

Professor George may believe that certain things (abortion, euthanasia, homosexual acts, etc) are immoral. But he is wrong to say that those things should not be protected under freedom of conscience. After all, there are absolutist moralists who support the right to abortion, euthanasia, homosexuality, etc (for instance, based on a moral valuation of liberty.) Where there are legitimate disputes over the morally correct course of action, all sides should be wary of arguing that freedom of conscience should not protect those who are incorrect. Not because freedom of conscience is inherently valuable, but because very few of us would like to live in a world where we are not free to believe what we believe.

Conscience is a command: it tells us what to do and what to think. But freedom of conscience is an acknowledgment of human fallibility. Since we do not trust humanity to always find the right course, we think it is better to allow individuals to make that decision. Conscience is restrictive, but freedom of conscience, like self-will, is permissive.

Youth and the Fourteenth Amendment

(By Andrew MacKie-Mason)

I'm working again on the paper I mentioned a while ago, that examines the application of equal protection law to youth in criminal court.

The gist of the argument is this: it is unconstitutional to try youth in adult criminal court because they are denied the right to vote (and thus affect the system in important ways) and because youth are not allowed to sit on juries.

What I'm asking for is this: possible counter-arguments. Why is it OK to charge young offenders in criminal court? Why does that not violate their rights under the Fourteenth Amendment? I'd like to address as many possible counter-arguments as possible.

The Fourth of July

(By Andrew MacKie-Mason)

It's now the fifth of July, and I'd like to take a moment to look back at the Fourth.

Driving home at midnight, I started off my Fourth by hearing the Star Spangled Banner sung by Faith Hill.

O! say can you see by the dawn's early light,
What so proudly we hailed at the twilight's last gleaming,
Whose broad stripes and bright stars through the perilous fight,
O'er the ramparts we watched, were so gallantly streaming.
And the rockets' red glare, the bombs bursting in air,
Gave proof through the night that our flag was still there;
O! say does that star-spangled banner yet wave,
O'er the land of the free and the home of the brave.

When I got home, I immediately read the Declaration of Independence, in full.

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

During the actual day of the Fourth, I went to a performance by the Capitol Steps. And I worked on a paper I've been writing for a long time about the intersection of youth rights and adult trials for juveniles.

So what does it all mean? What is the Fourth to me?

Obviously, there are many possible answers to that question. It represents independence, freedom, America...Mark Bennett would tell you that it is a day celebrating revolution. And all of that would be right, partially.

I'd like to throw another idea into the mix. This year, for me, the Fourth represented American traditions. Those things which have defined us as a nation, which have held together a diverse set of people enough to make this experiment in constitutional democracy work. And the most prominent of those traditions today our notion of heroes.

The Declaration, as much as it is a document of rebellion and of casting off of government, is really an affirmation of leadership. The leaders of the revolution were disgusted by King George, not because they hated government, but because they idealized it. We were born from men who thought that we should be governed by heroes, not by ordinary folk.

The national anthem speaks to the same thing. As a young nation, we lacked a history to hold on to. We were a new people, without religious or cultural icons to cling to. So we invented our own. The heroism of individual Americans was consumed in a national symbol: the star spangled banner, our national flag. Where individual heroes were temporary, the flag could be a permanent symbol for those heroes.

And in watching the Capitol Steps, I was reminded of yet another American tradition. As much as we seek to be led by heroes, we realize that we never are. Our leaders never live up to our high expectations. And so we mock them mercilessly. Not because these scandals are rare, or even representations of unusually bad people. We mock our leaders because they are like us...and we expect them to be so much more.

We are a land that looks up to our contemporary heroes. Let's celebrate that, and hold our leaders to that great American standard for this coming year.

Why Defend The Guilty?

(By Andrew MacKie-Mason)

For the last few years, I've been certain that the law will be a part of my life. And I've been only slightly less certain that criminal defense will play a huge part of that. I've interned at a Public Defender's office, and as a research assistant I've worked on Supreme Court cases closely tied to the defense of the accused. Criminal defense fits with me, with who I am.

It's not a career aspiration that's easy to understand. Why would I want to defend the guilty? How could I live with myself if I got someone off?

It's tempting to answer those questions with platitudes: everyone deserves a defense; innocent until proven guilty; it's a necessary part of the system. But if criminal defense is truly based on platitudes, then it lacks something extremely important: moral conviction. Because if the criminal defense lawyer doesn't believe in what he or she is doing, how can anyone else? How can those platitudes stand when the lawyer is confronted with a client who is truly and undoubtedly guilty?

This was driven home to me in a comment to a post on "Really? Law?" by a rising 1L named Ricky Nelson. He said, in part,

For every story you could find where the prosecutor unjustifiably went after the ‘poor misguided innocent defendant’ you can probably find another CDL that went defended someone who was without a doubt factually guilty of some awful crime. But each individual knows that these two extremes are possible outcomes on their job. They simply accept it as ‘a bad part of the job’ or they won’t do it.

On the whole, I think prosecutors have the opportunity to do more good than CDLs. In cases where the evidence is weak and the accused has a good chance of being factually innocent, a smart prosecutor will drop the case or plea it down. There’s no point in going to trial when the chance of losing is that strong. Ideally, the cases that go to trial are instances where the defendant is factually guilty, and the CDL will be challenging whether the prosecution can prove it. This paints CDLs in a very bad light.

There is so much about this that makes me want to cry. To bemoan the attitude of the rising lawyers of our world. To beg and plead and pray that this is a rare opinion, that not many people think this way. But I know that's not true. This idea, that we must resign ourselves to defending the guilty as a necessary but "bad part of the job" is common, whether among law students or just average citizens.

So what would I say to Ricky Nelson? I could say that we never really know whether someone is factually guilty. I could say that just like we don't let the prosecutor or the judge make that decision before the trial, we shouldn't let the defense attorney determine that on his or her own. I could say that no matter how much evidence there seems to be, something else could always turn up.

I could say all those things, and perhaps I will. But not today. Today, I do not want to dodge the question. Today, what scares me most is this attitude, this idea that the inquiry should stop at factual guilt or factual innocence.

Factually innocent? Good person. Factually guilty? Bad person.

It's all a product of the cancerous law and order mindset. Us or them. Good or evil. Citizens or criminals. Civilization or barbarous anarchy. Funny thing is, that's not how life works.

This culture is what gave us overly punitive prison sentences for minor crimes. It breeds lifelong deprivations of rights for felons and lifelong ostracization for "sex offenders." It killed the notion that the criminal justice system should seek to rehabilitate, not just punish. Because, after all: once a criminal, always a criminal. Once you're one of them, you'll never be one of us.

And it creates the idea that criminal defense lawyers must just accept their duty to defend the guilty, that defending the guilty is a necessary evil. But that's not true at all.

Just because a defendant is guilty does not mean they deserve to get the harshest penalty the state can devise. We should not live under the laws of Draco. We should not try to impose the simplicity of black and white onto a world vibrant with color.

Why should we defend the guilty? Because the guilty often (perhaps always) deserve less punishment than the state seeks to assign. Why do defense lawyers seek to get the guilty acquitted? Because that is necessary to force the state's hand. Like a haggler, the defense lawyer should not offer the correct price, because then the end result will always end up being wrong. Defense lawyers must fight, with passion, for the best possible outcome for their clients, in the hope that that struggle leads the system closer to the correct result.

There are many human factors at play in crime, and the law does not consider them all explicitly. But it does consider them, through the defense attorneys. Defense attorneys do what they can, everything they can, to make the result reflect those factors. They do what they can to arrange plea deals. They argue at sentencing for lower sentencing. And yes, they try to win acquittals.

Should defense attorneys hate themselves when they get a guilty defendant acquitted? No. Because criminal justice is not a set of independent events. It is a complex and interdependent web. The temporary injustice of a guilty man walking may be the incentive a prosecutor needs to give true justice to a hundred later men. Guilty men, perhaps. But not as guilty as the prosecutor would have the court believe.

There may be times when any reasonable person would arrive at the same conclusion about guilt or innocence. And perhaps those times are numerous. But it is quite another thing to suppose that any person could always make the right decision about what to do with that guilty man. The adversarial system is the best yet developed, not only for determining guilt or innocence, but for determining the level of guilt. Defense attorneys should celebrate and be proud of vigorous defense for the guilty. Not because it is necessary to protect the system. Not because "everyone deserves a defense." Because defense of the guilty is necessary, at a very basic level, to ensure justice.

Are some defendants guilty? Yes.

How guilty?