Archive for the ‘law’ Category

What Should Vargas Have Done?

September 23, 2011

I spent nearly twenty years teaching a course on “professional standards for mental health workers,” which was essentially a course on professional ethics. While we spent a lot of time talking about medical ethics, because historically all professional ethics start with the Hippocratic Oath, we also looked at the ethics of other professions or quasi-professions. For some reason, we never got around to journalism. Which is just as well, because I would have been tempted to inquire about the ethical status of the age-old question, “How did you feel, Mrs. Jones, when you saw your baby eaten by the tiger?” (I did, at one point, ask a couple of faculty members at the local school of journalism, who said they always tell their students that no good reporter would ask such a question. Yeah. Right.)

But now we’re hearing a lot about the professional ethics of journalism, in the context of Jose Antonio Vargas, a respected reporter whose “coming out” as an undocumented alien was recently published in the NYT magazine. His parents sent him here when he was 12 years old; he was raised in California by his grandparents. He didn’t know he was illegal until he was 16, and used fake documents to survive after that. He published his story to contribute to the current debate about immigration. But in the course of doing that, he has raised some issues in a heretofore mostly dormant debate about journalistic ethics.

First, let’s talk about the basic ethical issues. “Vargas has been living a lie at least since he was 16. What does that do to his credibility, including his credibility as a journalist? How can we believe anything he says?” people are asking. Not unlike the people who asked how anybody could believe anything Bill Clinton said after he lied about having sex with Ms. Lewinsky. Falsus in uno, falsus in omnibus, as the Romans said. The Romans were pretty good liars themselves, probably including whoever coined that adage. (Not to be confused with my father, a strong believer in the professional ethics of his profession, accounting, who once told me “Schlock in uno, schlock in omnibus,” by which he meant that somebody who screws around with IRS is probably also violating OSHA, the Clean Air Act, the child labor laws, and the Ten Commandments. Which my own professional experience finds quite credible.)

“Living a lie.” Until recently, most homosexuals lived a lie, too. Before them, during the McCarthy era, many American leftists lived a lie. And before them, back into the earliest beginnings of recorded history, so did adulterers. At various times, the religiously heterodox have had to live as liars, in the face of the Inquisition or similar organizations. During the American Revolution, many patriotic colonials, on both sides, “lived a lie.” Possibly including many of our now-revered founding fathers. I doubt that we have become any more honest since then. What has changed are the penalties for homosexuality, leftist politics, unpopular religious and political beliefs, and adultery. At one time or another, all of them have been capital offenses. More recently, they have been grounds for being deprived of employability, social respect, love, friendship, and companionship. Whoever formulated these penalties probably wasn’t hoping to be able to eliminate homosexuality, adultery, wrong-headed religions, or leftist political thinking. They just wanted to make sure that anybody who engaged in them had to lie about it. Which made such people vulnerable to all kinds of blackmail, some of it quite lucrative for people “in the know.”

For an adolescent who has just discovered that his presence in the country he has lived in for most of his conscious life is illegal, the issues are more complicated. What should the kid have done? Turned himself in at the nearest INS office (as it was then designated)? I have no idea what its functionaries would have done, back then. Probably the local migra was as clueless as Vargas himself. They might just have sent him back to his grandparents, rather than deal with all the paperwork. Or they might have locked him up and sent him back to his native country (the Philippines, I think) without a word to his grandparents or anyone else who knew where he had been living. Either way, I have real trouble believing he had any ethical obligation to submit himself to the dubious attentions of INS or any other government agency.

But at some point, apparently, he did make a deliberate choice to remain in the US, go to college, and adopt a profession without first attempting to regularize his situation. I am willing to accept for the sake of argument the proposition that that particular profession required special attention to truthfulness, although you may imagine my skepticism. I am not willing to accept that the professional journalist is obliged as such to be more open about his personal life and circumstances than any of the rest of us. I assume that the profession includes as many adulterers, tax cheats, and guys who tell girls they meet in bars that they will call them in the morning, as any other occupation. I don’t recall hearing any of these nefarious propensities being punished or even deplored any more among journalists than among cops, trash collectors, bartenders, or janitors. I don’t recall any article in the Columbia Review of Journalism advocating that they should be. Am I missing something?

Falsus in uno, falsus in omnibus is nonsense. We all know this. Every one of us has situationally relative standards of truthfulness. Most of us will lie about trivia, and about the details of our own personal lives and those of our near and dear. Some of us will embellish our resumes, and most of us in positions of responsibility in the business world will embellish the prospects of applicants for employment (“this job requires some typing, but you won’t just be a clerk…”) and virtually all of us will inflate our esteem for people we have just met. But we all know the difference between the level of veracity prevalent among ordinary reasonable persons and what we are likely to hear from real liars. We also know the difference between deliberate knowing falsehood and mere “reckless disregard” for the truthfulness of a particular statement (the difference, let us say, between Oliver North and Michelle Bachman.)

And most of us also know that society will cut some slack for the reformed sinner, or liar, who eventually comes clean, if only to encourage others to do the same. It’s sound social and moral policy. Some of us even realize that the immigration policy of the United States is more openly subject to the application of clout (in the form of private acts of Congress) than almost any other area of our government, and that Vargas, given his professional eminence, is very likely to benefit from such clout and be safely legalized by the time ICE (as it is now known) gets around to dealing with him. It would be nice if more of us were also aware that being in the United States illegally is not the same kind of violation as, say, mother-stabbing or father-raping, and should not subject those who commit it to the full penalties of outlawry in the original sense of the word. Enough already, let’s concentrate on real lying and real crime, especially among those who have had the benefit of being born in the USA.

Red Emma

The Face of Innocence?

July 7, 2011

I’ve been engaged in a four-day Continuing Legal Education marathon, so I haven’t paid much attention to the Casey Anthony trial (unlike the OJ trial, which I actually used as material for the college English classes I was teaching at the time.) But last night I got seriously overdosed with it on the news and Nightline and Frontline. And once I finished working today, while checking my email, I stumbled across the proposed text of “Caylee’s Law” (which would make it a felony for parents to fail to notify police within 24 hours of a child’s disappearance or within an hour of a child’s death.) For those of you who have been residing under foreign rocks for the past 20 years or so, it has become standard American practice to respond to any really outrageous crime, especially if the victim was a child, by passing new laws to keep that particular crime from recurring, and name the law after the victim in question. This raises Mother Jones’ maxim “Don’t mourn, organize” to a new level of literality.

Well, never mind that constitutional law expert Lawrence Tribe says “Caylee’s Law” would probably not pass constitutional muster, as it seems not to further any properly authorized federal purpose. The public’s problems with Caylee’s case are pretty much the same problems they had with the OJ trial, and the Susan Smith trial, and a whole bunch of others in between. Specifically:

1) The public saw a completely different narrative of the crime than the jury did. The trial narrative the jury saw was flattened out by the exclusion of all kinds of evidence that was fair game for the media outside the courtroom—stuff that one side or the other or the judge on his own motion excluded as irrelevant, prejudicial, or just plain boneheaded, but that the public absorbed in order to formulate its understanding of what really happened. Having formed that narrative, the public either can’t understand that the jury saw an entirely different set of facts, or is also outraged that the jury didn’t get to see and hear what the rest of us did.

2) The public, like Aristotle, believes that character is destiny. It is mere commonsense to believe that bad things are done by bad people. Proving that a defendant was a bad person is sufficient to convict her of a bad act. And, moreover, even if she didn’t exactly commit that particular bad act, we are better off if she gets locked up so she can’t commit her inevitable next bad act in our community.

3) The Anthony trial certainly did a good job of proving that Casey was, if not a bad person, at least a serious wack job. So, apparently, are most of the members of her family. (BTW, who was Caylee’s father? Apparently we don’t know. If we are to believe, as Casey’s attorney tells us, that Casey was a victim of incest, is that somehow connected to the paternity issue? And why was nobody else in the family speaking to Casey’s brother? Could he have been the child’s father?) The jury may have found the oddities of Casey and her family grounds for mitigation of responsibility. The public, however, seems to think they are, if anything, factors in aggravation. Crazy people scare us. Lawyers may think that proving a defendant too wacked-out to be responsible for his crime means he should be released. The rest of us think that a defendant who is that wacked-out is too dangerous to be out on the streets. A middle position, that such a person should be locked up for appropriate treatment, is hard to sell, because most of us know just how difficult it is to get somebody hospitalized for mental illness for long enough to treat it adequately. As a result, the two largest mental health facilities in the country now are the Cook County Jail and the Los Angeles County Jail.

4) It seems most likely that the jury simply found the evidence insufficient to convict Casey of anything but lying to the police. Ever since the OJ trial, we have been hearing jeremiads about how demanding juries are getting, demanding not merely absence of reasonable doubt, but an airtight case, in order to convict. The case against her was largely circumstantial, and just about every element of the prosecution’s evidence was susceptible to explanations other than Casey’s guilt.

5) It would be interesting to run a study, over the last 40 years or so, of how judges and juries treat mothers charged with killing their children, as opposed to fathers charged with the same offense. OJ, unfortunately, was not an infanticide case, so the gallows humor with which the public followed it doesn’t necessarily prove anything, as compared with their attitude toward Casey, or Susan Smith, or even Andrea Yates. But it is easy to suspect that the double standard cuts especially hard against women in these cases.

6) Which, for some reason, brings to my mind Sir Walter Scott’s novel, The Heart of Midlothian, which turns on a Scottish law against infanticide, passed in 1690: “Any woman who shall conceal her being with child during the whole time of her pregnancy, and shall not call for, or make use of, help in the birth, is to be reputed the murderer, if the child be found dead or missing.” Sir Walter, BTW, had training in the law, and bases the novel on an actual occurrence in his day (early 19th century.) His account admittedly stretches credulity, by demonstrating that a woman could be guilty of the conduct described in the Act and still bear no responsibility for the death of the child, and indeed, that the child might ultimately turn out not to have died at all. Which is pretty much the kind of argument Casey’s attorney made, and the jury accepted, though the public didn’t.

7) But I guess what I find most disturbing was the reaction of the crowd outside the Orlando courthouse when the verdict was announced. Two generations earlier, it would have been the makings of a lynch mob. The crowd was demanding “justice for Caylee,” as if that poor child were not far beyond whatever human justice could offer, and now in the hands of the Ultimate Mercy. The prosecution kept claiming to “represent the victim,” which I believe is a serious mistake in prosecution philosophy. The victim, or some family member, is free to file a civil case against the putative criminal who victimized her, and to receive whatever justice is available in monetary terms. In increasing numbers of criminal cases, civil justice is also being pursued, and that is all to the good. But the goal of a criminal case is not justice for the victim. It is justice, and safety, for the community, which is who the prosecution is really supposed to represent. The damage to the victim, and even to her family, can never be made to “unhappen.” No amount of punishment of the victimizer will accomplish that. If we cannot accept that in some way the Holy One will someday wipe away all tears from our eyes, we have to live with the injustice and hurt that the criminal has done to the victim and to all of us.

8) The footage of the actual trial raises a couple of interesting questions:

a) Illinois is one of the few states that still forbids televising most court proceedings, on the usual grounds that the camera will bring out the ham in all the participants. I find those arguments unpersuasive. In the first place, with or without cameras, trial lawyers are hams. It is part of their job description. In the second place, most people, whether professionals or merely parties and spectators, get used to the camera enough to mostly forget about it, very quickly. And the Founding Fathers believed very strongly in public trials (as public as the technology of the 18th century could make them, anyway) for very good reasons. We need to know what our justice system is doing in our name, for our presumed benefit, and on our money. Seeing it at work should not be a privilege reserved for professional spectators such as journalists, or dedicated amateurs such as retiree law buffs.

b) And finally, the law says that the jury is entitled, or even required, to take into account, as evidence side by side with smoking guns and weeping witnesses, the demeanor of the defendant. I watched Casey go from grave to stone-faced to laughing to crying and round about again, and I wondered what conclusion the jury was drawing from her demeanor. I have heard people say that a defendant “looks guilty” for smiling, or not smiling; for showing emotion, or not; for responding with visible anger to being bad-mouthed by the prosecution and its witnesses, or not. If you get a chance, watch Meryl Streep’s performance in “A Cry in the Night” (drawn from a true incident, also about a mother accused of killing her child) and how much dislike she draws from the public for her apparent lack of emotion. But hysterics can have the same result. The problem, so far as I can tell, is that we have no idea how an innocent person behaves. Maybe this is because we really don’t believe in innocence, at least in the context of a criminal court. If the defendant is charged with Aggravated Mopery, or whatever, that generally goes pretty far to convince us she is guilty. The fact that the Anthony jury managed to transcend this presumption speaks astoundingly well for them. Maybe there’s hope for us after all.


Kids Having Kids, Grannies Raising Kids; or Leapfrog Parenting in Our Future?

February 7, 2011

The River City Syndrome

“Friends, we got trouble
Right here in River City,
And that starts with T, and that rhymes with P
And that stands for….Pregnancy?”

Everybody talks about teen pregnancy, but nobody can figure out what to do about it. Newt Gingrich had it figured out 17 years ago or so—take the babies away from their mothers and raise them in orphanages. Then he looked at the price tag. Modern standards for what we now call group homes would turn his plan into a bigger entitlement program than Social Security or MediCare. Forget that.

They have it figured out in continental Europe. Teens there actually have more sex than American teens. But they are diligent about contraception, and have no problem resorting to abortion as a back-up if necessary. So their teen pregnancy rate is much lower than ours. This is not to be confused with their out-of-wedlock pregnancy rate, which is really high in Scandinavia, but not among teenagers. Middle-class American girls operate pretty much the same way.

They had it figured out in the 1950s in the US. I remember that system very well. It was the reason I didn’t go to the local public high school. The year before I would have started there, half the girls in the graduating class were pregnant. Most of them got married, very quietly, and then lied about the date. The young men involved all got the satisfaction of having done the honorable thing. The girls got the wedding ring. The babies got their legitimacy. There may have been a couple of girls whose partners did not do the honorable thing, so instead they took a six-month vacation with an aunt in some other state. Most of the girls in question hadn’t planned on college anyway.

The Maternity Dress with the Blue Collar

So far as I know, almost nobody operates that way any more. Blue-collar girls, regardless of race, creed, or color, just stay home (and stay in school as long as it isn’t too much trouble) and have the baby. What has made the difference? Two things, as nearly as I can tell. One is that nobody approves of “shotgun weddings” any more. Even the Catholic Church is reluctant to perform marriages where the bride is pregnant. The statistics on such marriages are discouraging. Both abuse and divorce are much more likely than in the general population of married couples. So the young man in question is under absolutely no pressure to marry the girl. It is no longer considered “the honorable thing.”

The second thing, counter-intuitively enough, is Roe v. Wade. Yes, I know blue-collar girls are very unlikely even to consider abortion. (This is not necessarily because of parental pressure. Indeed, sometimes it is despite parental pressure. When I worked at juvenile court, I once represented a girl whose father had thrown her out of the house for refusing to get an abortion.) But the fact that, in spite of the legality and availability of abortion, they don’t get one, marks them as “good girls,” in their own eyes and those of their peers, in spite of having gotten pregnant. It gives them some moral leverage they would not otherwise have. The Catholic Church recognizes, with a surprising degree of rationality, that anything that makes unmarried pregnancy more difficult makes abortion more likely. So Catholic schools go out of their way to make life easy for pregnant students. Public schools do too, though for different reasons—they just really want to keep the girls in school as long as possible. See A pregnant teen who finishes high school is in a much solider situation than one who drops out. Many of the bad things that happen to single mothers and their children are less likely to happen when the mother finishes high school, or better still, goes on to college, at least for a year or two.

All in the Family Way

Most of the pregnant teens who manage this do so only with the help of major parental (mostly maternal) support. If mother and daughter can remain on good terms for the duration (which is not always easy for either one), the baby will have the benefit of two adults caring for her, and often, of two incomes supporting her, just like the child of a properly married couple. I know of no source for statistics on the prevalence of split-ups between mother and daughter in this situation, compared with the stats on divorce after a shotgun marriage, but my guess is that it is somewhat less frequent.

According to AARP, one in every twelve children in the US is being raised in a household with one or more grandparents. These statistics do not distinguish between households in which the child’s mother is also residing and caring for the child, and households in which the mother is for some reason absent (death, incarceration, drug addiction, general flakiness, military service, or single-minded pursuit of education and career goals.) Nor do they provide any information on the increasing number of children being raised by their great-grandparents. But they do suggest a solution to some of the problems besetting the modern family.

The Murphy Brown Syndrome

In blue-collar families, pregnancy happens “too early”, all too often. By “too early,” we mean before socioeconomic maturity, often before finishing school, or even instead of finishing school. In white-collar families (regardless of race, by the way—professionally-educated African-American women have the lowest birth rate in the country), pregnancy often happens “too late.” By “too late”, we mean after socioeconomic maturity, after finishing one’s education and getting established in a career, and after the height of female fertility in the late teens and early twenties. Often, we mean after the precipitous decline of female fertility in the mid- or late thirties. In which case, “too late” may mean not at all. But even if it doesn’t, it often means having children who will be starting college just as the parents would otherwise be starting to think about retirement.

New Supporters of Early Marriage

Early marriage by choice rather than because of an unplanned pregnancy is occasionally discussed among religious groups that frown upon premarital sex (see, and presumed among others such as the Amish who discourage post-high school education anyway, as well as among some immigrant groups. For the rest of us, it seems to further complicate what is already the most complicated period of most people’s life, from age 12 through 25.

Alternative #1: Leapfrog Parenting

But there are a couple of alternatives worth considering. The obvious one, already discussed above, is for women to bear their children early, raise them with the assistance of their mothers, complete their education, start their careers, and then marry. This could even be organized so that grandmother, having finished raising her daughter’s children, would be able to retire just as the daughter is ready to start raising her daughter’s children. Think of it as “leapfrog parenting.” Biologically, we are told, the best age for women to conceive is from 18 to 25. Socioeconomically, the best age for a person, male or female, to raise children is from 35 to 55. The numbers point to one ideal conclusion: bear your own children at 18, and start raising your daughter’s children at 36.

Make Room for Daddy

What place does this scheme leave for the fathers of all these children? I am tempted to say, whatever place the particular man in question wants, since that seems to be what happens anyway. Not being forced (sometimes at gunpoint) to do “the honorable thing” is probably an improvement in our ideas about family life. Not knowing quite what to do when one’s girlfriend gets pregnant definitely isn’t. Fortunately, the country is rife these days with all kinds of projects and programs for, and studies of, teenage fathers. Lots of us are looking for answers to this question, and with any luck, we may find one. (more…)

Prohibition and Regulation: Toward a New Intellectual Party Game

January 26, 2011

Scholars studying ancient Near Eastern cultures tell us the distinction goes back at least 4000 years, well before Biblical times. For at least that long, there have been two kinds of legislation, often existing side by side in the same culture: “Thou shalt not…” and “If a person does so-and-so, then he shall…” The scholars call these two kinds of legislation “apodictic” and “casuistic”, in case you’re interested. For our purposes, it’s easier to call them “prohibition” and “regulation,” and to note that, in nature, neither of them is likely to be found in a pure state; what makes the “chemistry” of our various cultures is the proportion of the mixture.

Prohibition: its advantages and drawbacks

The prohibitionists, in every era, have taken the position that, if something is wrong, it’s wrong, and should be prohibited. Period. If the prohibition is violated, some very stringent punishment is usually incurred, often banishment or the death penalty.

The problem with this approach is that it makes virtually no provision for dealing with the consequences of the prohibited conduct, either for those who engage in it, or for its more or less innocent victims. If the enforcement mechanism breaks down and somebody does violate the law, the system may or may not be able to inflict the ordained punishment, but it will certainly not be able to repair the damage. If non-marital sex and intravenous drug use are wrong, then it’s just too bad if the people who do such things are at risk for AIDS. We won’t do anything to make their misconduct less dangerous, even though we know the spread of AIDS will sooner or later affect people who are, even by the most puritanical standards, completely innocent.

Additionally, prohibitionist systems are highly vulnerable to hypocrisy and blackmail. History overflows with cultures in which drinking, gambling, prostitution, fornication, adultery, dancing, homosexuality, theater, usury, or drugs have been strictly prohibited. Sooner or later, in most of them, a flourishing black market has developed in the forbidden commodities or activities. Anyone with the money or the connections could indulge to his heart’s content. But anybody who made the wrong kind of enemies (individual or collective) might easily find himself accused of such indulgence (truthfully or otherwise) and end up in serious trouble. Often, the law has been enforced only against unpopular or unrespectable people, and has become a powerful tool for enforcing social or political conformity.

Regulation’s pluses and minuses

Regulators, on the other hand, take the position that people are going to do what comes naturally, and all the law can do is make sure the fewest possible people get hurt by it. So they impose restrictions and conditions on the undesirable conduct. They may set an age minimum on it, for instance. They may impose quality controls on intoxicants, to prevent poisoning. They may license prostitutes and check them regularly for disease. They may monitor gambling establishments to prevent overt racketeering.

Naturally, the regulators know better than to expect all of the various regulations to be fully complied with. But they assume, with some justification, that the existence of the regulations at least diminishes the possible damage. For instance, nobody seriously believes that raising the drinking age to 21 will keep many 18-year-olds from drinking; but it does seem to have cut down on drinking among 16-year-olds.

The downside of regulation is, first of all, that it usually creates a whole bureaucracy to administer the system. The members of that bureaucracy are highly susceptible to bribery and other forms of corruption. Normally, such corruption happens on a small, if not individual, scale, and rarely cuts into the effectiveness of the system in any serious way.

Secondly, the regulations themselves are likely to be under constant assault from those being regulated, who spend considerable money lobbying for changes in the direction of leniency. The “revolving door,” through which staff of the regulatory agencies eventually wander off to work for the regulatees, is one of the less savory aspects of that lobbying.

Thirdly, there is the phenomenon known among food processing experts as the “Rats*** Factor.” If some government agency says that a given kind of food is allowed to have no more than .00002 milligrams per kilogram of rat excrement in it, the processors will ensure that each kilo will have precisely .00002 mg. of rat excrement, even if it has to import the rats to do it. Regulatory floors tend very quickly to become ceilings.

Finally, the regulatory mind is by nature disposed to pettifoggery and nitpicking, often at great cost to those being regulated and to the general public. The drug licensing provisions of the Food and Drug Administration, for instance, are world-famous for being simultaneously too lax and too rigid. The FDA has been known to hold up useful drugs for years on end, while allowing all kinds of dangerous additives to slip through the process because they were “Generally Regarded As Safe” twenty-odd years ago.

Religious antecedents

The Calvinist Protestant tradition tends to produce strongly prohibitionist legal systems, most notably in the United States (through our Puritan heritage), Great Britain, and South Africa.
The Calvinists come by their prohibitionism mostly from reading the Bible, which redounds with “thou shalt not”s, and taking its legislation literally (so much so that, in Calvin’s Geneva, a 6-year-old boy was beheaded for striking his parents.)

Interestingly, both Jews–who read scriptures through the lens of the rabbinical commentaries–and Catholics–for whom the Fathers of the Church and canon law serve much the same purpose–have strong regulationist tendencies. Both traditions had trouble with the bare-bones prohibitionism of scripture, and their respective commentaries go to great lengths to interpret it into regulation. The Jewish tradition has made the useful discovery that regulation, if made stringent enough, can actually do the work of prohibition. (For instance, the rabbis set up a system of due process protections for the defendant in death penalty cases which for all practical purposes regulated the death penalty out of existence.) The legal systems of Catholic countries, often based on some descendant of the Napoleonic code, are strongly regulationist, except as regards divorce (in which their total prohibitionism leads to the usual hypocrisy and blackmail–for more information, see the once-popular movie “Divorce Italian Style.”) The legal system of the State of Israel is a hybrid, based on prohibitionist British colonial and regulationist Turkish ancestors, with a mild infusion of regulationist Western liberal ideas.

The American hybrid

Over the past two hundred years, the trend of American legislation has been increasingly regulationist, interrupted by occasional orgies of born-again prohibitionism, usually in connection with some intoxicating substance.

In many areas of American law, prohibition and regulation exist quite overtly side by side. For instance, the Clean Water Act provides that the government will issue permits to various industrial installations, allowing them to discharge only a stated quantity of various pollutants into our rivers and lakes. Discharging without a permit, or discharging pollutants or quantities not allowed under a permit, is a violation. But the Rivers and Harbors Act of 1899 says simply that no one is to discharge any waste material into, or onto the banks of, the waters of the United States. Period. Most water pollution enforcement actions are conducted under both laws. It is obviously easier to get a conviction under the Rivers and Harbors Act, but unfortunately the penalties are much less severe than those of the Clean Water Act, and Congress in its wisdom has chosen to leave them that way.

American law in the area of sexual morality (especially prostitution) seems to have gone the opposite way from the rabbinic tradition, making prohibition do the work of regulation. The periodic “sweeps” of prostitutes from popular street corners are commonly justified in the press as a way of preventing traffic congestion and reducing the spread of disease. Public officials never seriously discuss wiping out prostitution merely because it is against the law; instead they use the law prohibiting it to keep it under control.


This analysis provides us with the makings of a mildly intellectual, pleasantly diverting cocktail-party game (are the French regulationist or prohibitionist? What about the Chinese? Karl Marx? Groucho Marx?) Aside from that, it is useful mainly as the basis of a risk-benefit calculation in developing new legislation. The most obvious place to try it out right now is in the area of drugs.

Everybody on both sides of the most recent elections has talked a strong prohibitionist line on that subject, but several well-informed and respectable people, including a number of law enforcement officials, have been looking seriously at either regulation or complete legalization. The ideal solution, as usual, is probably a hybrid, rather than a purely prohibitionist or purely regulatory approach–but one other than our present mix (regulation as to alcohol, tobacco, and prescription sedatives and stimulants, and prohibition as to marijuana, opiates, and cocaine derivatives.)

All the experts and would-be experts, on all sides, seem to agree that the current mix doesn’t work. But any move toward changing it has to take into account the relative influences in our culture of Catholicism, Judaism, Calvinist Protestantism, and various other religious traditions which have their own tendencies toward prohibitionism and regulationism. Additionally, it should weigh the problems likely to be caused in our particular culture by an increase in hypocrisy and blackmail, on one hand, or of corruption and bureaucratic nitpicking on the other, so that we can decide which will be least troublesome to us. And, while we are doing all this checking and balancing, we must refrain from calling the regulationists “decadent” or the prohibitionists “bluenosed” for acting on their best judgments. Above all, we must be willing to grant the good faith of both sides, if we are to evolve a solution we can all respect.


Is Bullying a Childhood Disease?

January 18, 2011

Or: The Upside of the Gun Epidemic.

We are, suddenly, hearing a whole lot about bullying in schools. Schools are making regulations against it. Local governments are even passing laws against it. A generation ago, it was ignored the same way measles and mumps were ignored, as a stage most children had to get through, which most of them would survive more or less undamaged. These days, of course, we don’t ignore measles either. In both instances, it is mostly because we have finally noticed that bullying, and measles and mumps, can be deadly, or at least seriously disabling. I’m not quite sure what brought the grave consequences of “childhood diseases” to our attention, but I’m pretty sure what did the job for school bullying—guns. As long as the victims of bullying suffered in silence and the perpetrators were given the protective cover of “boys will be boys,” adults didn’t have to take notice. But when both bullies and victims turned up in school with guns, the jig was up, the cover was blown, and the cat was out of the bag.

We are all acquainted with the basic pattern. A kid will be targeted for being fat, or skinny, or dumb, or smart, or sensitive. His classmates will vandalize his property, beat him up, steal his lunch money, or stuff him into lockers on a regular basis. The kid will seek help from the teachers, who will generally tell him that “you will have to learn to solve your own problems,” or will tell all the students that “all of you will have to learn to resolve your own differences,” as if the problem were merely a disagreement about whether Eminem or Fifty Cent is the better performer. If the pattern continues, all the kids involved, both victims and perpetrators, may be punished, with majestic impartiality, for “fighting.” Sometimes the punishment will involve victim and perps being placed in detention in the same room.

At some point, some adult, either teacher, “counselor”, or parent, will tell the victim “if you just don’t react to what they’re doing, they’ll stop. They only do it because you show them how much it hurts.” This tells the victim two things: (1) that the bullies aren’t picking on him out of ignorance (no matter what Socrates says), they really want to hurt him; and (2) what they’re doing is normal and natural; he’s the one with the problem.

A more up-to-date approach currently being tried in some schools is the teaching of “victim empathy,” or “how would you feel if somebody did that to you?” This at least has the merit of recognizing that it is the bully who has, and is, the problem. But it ignores one of the more remarkable findings of social scientists who study bullying, which is that a large proportion of the victims also engage in bullying behavior themselves, and vice versa. So they already know exactly how it feels when somebody does it to them. In fact, that may be why they do it—revenge, or inoculation, or trying to get in with the perp crowd for their own safety.

But at some point in this pattern somebody—apparently it can be either the victim or the bully—will show up at school with a gun and blow away several teachers and classmates. Then we start to deplore violence in our schools.

Is bullying universal, among all children and adolescents? We don’t know. We do know it isn’t restricted to 20th- and 21st-century North America. It turned up in Victorian England, and is widespread in Japan.

The use of laws and regulations to deal with bullying seems excessive to most of us, accustomed as we are to regard anything done by or to children as insignificant. But, ultimately, we have been persuaded by the introduction of guns into the equation that this stuff is more serious than it looks. Reluctantly, we are willing to “criminalize” what is still viewed as more or less normal juvenile behavior. What we have not yet been willing to recognize is that most of it would already be criminal, if the victim were an adult. Beating him up? That’s assault and battery. So is stuffing him into a locker. Stealing his lunch money? Petty larceny. Vandalizing his property—that’s criminal damage to property. Even the less physical kind of bullying typically engaged in by girls is usually prosecutable as defamation, harassment, cyber-harassment, stalking, and invasion of privacy. And would have been, long since, if the victim were not a child.

We really have viewed bullying between children as a kind of childhood disease which can confer immunity against the same kind of problem among adults. “Let him learn how to handle it now, while the stakes are low,” we sometimes figure. “Then he’ll be able to handle the Boss from Hell, or the Drill Sergeant.” Unfortunately, like measles, bullying in childhood can kill or disable. And, like measles, bullying among adults can also be deadly. (See the literature on workplace bullying for more data.)

Are laws the best way to solve this problem? Probably not, especially in the US where we tend to ignore most of the laws against physical battery and assault, except those protecting specifically vulnerable populations like women, children, people with disabilities, police officers, and ethnic minorities. We really haven’t internalized the laws against beating up on “people in general,” which is why laws against domestic violence, child abuse, elder abuse, and so on, have had to be imposed in the first place. And probably why so many of us—especially those not protected by those particularized laws, like adult white males–feel it necessary to carry firearms.

I suspect, though I know of absolutely no data to support this, that the most effective way to teach our young physical self-restraint is something like the ethical codes imposed in classical Greece and Rome, the Samurai in Japan, and the knightly orders in the Middle Ages: a code that says “We are the _________________ (choose your preferred highly-regarded identity). So we don’t ______________________________(choose your preferred nasty behavior.)” Something like the West Point honor code, although that has obvious drawbacks. (Probably they all do. If we are going to invent one, we should be prepared to revise and tweak it continually.) Something that may even encourage the carrying of arms, so long as it also discourages using them. (I’m thinking here of my grandfather the Colonel, who taught all of his children to clean, load, and shoot a gun, and also taught them “you don’t pick up a gun unless you intend to shoot, and you don’t shoot unless you intend to kill.”)

But above all, it would require adults, including highly visible adults, to lead by example. We don’t want the kids to think that as soon as they’re grown up, they can beat up on people as much as they like. There are plenty of role models out there, even among our regularly armed citizens, such as police officers and soldiers. But the cops and soldiers who themselves regularly engage in bullying would need to be placed under better control. If we want to keep kids from shooting up their schools, we will need to start with the rest of us. And if we are serious about telling them “violence is not the answer,” we will probably need to come up with a better question than “How can I get what I want, when I want it?”


Abuses of WikiPlumbing

December 19, 2010

The Wired Family is somewhat confused about the WikiLeaks revelations and the various reactions to them. Mr. Wired thinks they were a really bad idea, and Julian Assange should be punished to the fullest extent of the law. But the sisters are all uncomfortable with this proposal. Red, predictably enough, considers Julian to be a hero. She looks forward to the end of official secrecy in the Western world. Jane, on the other hand, misses diplomatic discretion, which did some useful things in its day. Cyn is most concerned, not about the breaches of governmental secrecy, but about the measures being taken to discourage repeat performances.

First, Cyn, being the lawyer in the family, is discomfited by repeated proclamations that the US government (and probably others as well) is trying to figure out how to rewrite the Espionage Act to cover the behavior of Assange and his sources. Umm, guys, that’s behavior that has already happened. Which means any law enacted or amended now to punish it is an ex post facto law. And Article One of the US Constitution specifically prohibits the enactment of such laws. Okay, maybe the government just wants to close the barn door before the next batch of horses is stolen. That’s not what it sounds like.

Secondly, Cyn finds the behavior of private agencies against Assange and his buddies really scary. Closing down his server and his domain; shutting down credit card donations to his website; arresting him for utterly unrelated criminal charges in Sweden, which may or may not have any factual basis, and in either case may or may not be the sort of thing the Swedish courts normally prosecute—try to imagine, gentle reader, how easily you could be the target of such sanctions, if some government took a dislike to you. Note that most of these sanctions were implemented by private organizations, such as MasterCard, Amazon, Bank of America, PayPal, Visa and Swiss bank PostFinance. Suppose your bank decided to stop accepting deposits to your account. No more direct deposit of your paycheck or your pension. Suppose your website, or blogsite, or email, got cut off by your server. If you have not had the foresight to put a substantial portion of your money into your mattress, you may discover yourself homeless and broke, and unable to communicate your plight to most of your friends and family. Writers of speculative fiction have played with this scenario for several decades now—most notably Whitley Strieber in Nature’s End and John Brunner’s The Shockwave Rider, but the list is a lot longer. We have all entrusted our lives, our fortunes, and our sacred honor to a bunch of faceless non-governmental strangers who can all too easily be co-opted against us by an irritated government (or even an irritated corporation.) After all, under US law, MasterCard, Amazon, and their other buddies, as non-governmental actors, are not bound by the Equal Protection and Due Process mandates of the Constitution.

Assange, of course, is far from friendless. His supporters are retaliating against the above-mentioned malefactors with Denial of Service attacks far beyond my poor power to add or detract. But how many of us have access to such support? Maybe while governments are tinkering with the machineries of censorship to fend off the next batch of leaks, the rest of us should be organizing a vigilante support mechanism to protect ourselves from the vengeance of the international bankers and servers.

Maybe Assange deserves it. I haven’t read most of the leaked documents, or even read a synopsis of them. The ones I do know anything about seem more embarrassing than dangerous. Red, as previously indicated, likes to see politicians embarrassed. It may help keep them honest. But even if he had put the formula for the Universal Solvent on the front page of the New York Times, or done something else that really deserved punishment and needed deterrence, so far nobody except maybe the Swedes are even trying to follow the law in sanctioning him.

There are a few other background questions that need exploration. Like: how many of these leaked documents were originally created with the specific intention of being leaked, as unofficial and unauthorized but plausibly deniable and highly useful communications? Or in the alternative, is there any likelihood that some or more of the documents were falsified or redacted by WikiLeaks to say things they never originally meant to say? And if so, how does that change their legal status (compare: the guy who knowingly sells oregano claiming it is marijuana—what crime, if any, has he committed? Or suppose he sells it with the explicit disclaimer that it is oregano, but wink-wink-nudge-nudge we all know better don’t we?)

Consider the bizarre fate of Leonard Lewin’s Report from Iron Mountain ( The_Report_from_ Iron_ Mountain), a kind of fictionalized predecessor of the very real Pentagon Papers. It was published in 1967 as a satire purporting to be a report on military-industrial policy prepared by several government officials and think tankers. But 30 years later, a right-wing nutcase printed excerpts from it in his propaganda screeds, and defended himself (unsuccessfully) against Lewin’s copyright suit by claiming it was a government document and therefore in the public domain. What if the WikiLeaks papers turn out to be another Report from Iron Mountain? Or, as the Italians say, Si non e vero, e

Ben Trovato *

*A friend of the Wired Family, and director of the Iron Mountain Office of Creative Publicity and Quasi-Factual Information.

Right Turn Only?

August 25, 2010

Most Constitution-watchers agree that a successful call for a constitutional convention is unlikely in the foreseeable future, since it would require a super-duper majority of Congress to agree on something. If that happened, our elected representatives would probably be too enthralled with the sight of all those flying pigs out the window to pay much attention to business anyway.

Most progressive legal scholars think that’s just as well. A constitutional convention, they believe, would be a jurisprudential disaster. The Bill of Rights would be up for grabs. The essential function of a constitution–restraining the power of the majority and its elected representatives–could easily be thrown out the window by a bloodless majoritarian coup. The only serious proposals for a Constitutional Convention are being made by the Far Right, and include such unnverving suggestions as the abolition of the income tax, the restoration of a property qualification for voting, the establishment of Protestant Christianity as the national religion, the elimination of the “natural born citizen” requirement for the presidency, the Right to Life Amendment, the Defense of Marriage Amendment, and the elimination of birthright citizenship.

So the progressive response to calls for a constitutional convention has been a simple and oft-repeated “no.” While not unreasonable, that leaves the Left with nothing intelligent to say in the admittedly unlikely event that a constitutional convention actually happens.

Progressives need an agenda for a constitutional convention, for two reasons. The first is the reality of any negotiating situation: the party that begins with the status quo as a negotiating position is


to end up with less. The only way to have even a chance at maintaining the Bill of Rights in its present shape, if a Constitutional Convention actually happens, is to demand something that will be perceived by the other side as even more radical.

And the second is that the Constitution in its current form really could use some changes.

First, of course, is the Equal Rights Amendment, which needs no introduction and very little comment. Illinois and several other states have such amendments in their constitutions and have used them quite successfully to combat sex discrimination through state litigation.

Next is the power to initiate military action and international alliances. Currently, the President has the power to commit troops to military action, but only Congress can declare war or vote funds for it. The technology of both communications and warmaking has far outstripped this anomalous political mechanism, set up when the speed of the horse and the sail was the limiting factor for both. The War Powers Act, enacted to resolve this dilemma, may itself be dubiously constitutional. Similarly, no treaty is valid unless ratified by Congress, but the President can accomplish by executive order virtually everything the treaty-making power can achieve.

And these awkward dilemmas are merely a special case of the greater conundrum bequeathed us by the Framers–when does the system of “checks and balances” among the three branches of government encroach on the “separation of powers”? This is no mere academic debate; it was crucial to the Watergate proceedings, for instance. What did the federal courts have the right to order the President to do? Could the executive branch resist the power of the judicial branch to demand evidence? And so on.

Next is the equally awkward dilemma woven into the fabric of the First Amendment, between “free exercise” of religion and “no establishment.” As a practical matter, the Supreme Court has dealt with it so far by importing into the public realm as “secular” observances, piece by piece, one ritual or artefact of mainstream Protestantism after another, under the “free exercise” rationale, while barring similar concessions to other religions under the “no establishment” clause. It’s okay to require businesses to close on Sunday, because Sunday isn’t a religious day of rest any more, it’s a secular observance. It’s okay to make Christmas a national holiday, for the same reason. It’s even okay to display statues of the Virgin Mary, the infant Jesus, and miscellaneous angels and shepherds, on public property, so long as they are, as constitutional scholar Alan Dershowitz says, “flanked by two plaster animals in sufficiently bad taste.” (He calls this the Pink Flamingo Rule.) But it’s


okay for a federal contractor to provide that all its Jewish and Seventh-Day Adventist employees automatically get Saturdays off, when its other employees have no such “privilege.” That’s discrimination against the others on religious grounds.

Then there is the Second Amendment, dealing with the right to keep and bear arms. Much of the current dispute about its meaning (from the point of view of an ex-English teacher) results from the fact that the nominative absolute (“…a well-regulated militia being necessary…”) has dropped out of use. So the Second Amendment needs to be rewritten in modern grammar. Some gun control advocates find such a prospect terrifying, but it is difficult to conceive of any way the Amendment could be redrafted that would be any


than the way the NRA and the Supreme Court interpret the current version. (Well, okay, incorporating into the Second Amendment the Kennesaw, Georgia ordinance requiring every citizen to own a firearm could be worse…)

Additionally, there are the affirmative rights not clearly protected by the Constitution, at least as read by the current Supreme Court. Most crucial would be an unambiguous enactment of a right to privacy as such–a limitation on the right of state and local government to intrude into people’s personal lives. The Warren Court found this concept obvious, and used it to protect the right of married and unmarried people to procure and use contraception; the Rehnquist Court eroded it by holding that a state government can forbid consenting adults to engage in “sodomy” in the privacy of their own bedrooms. The Roberts Court seems a bit squishy on privacy too.

    Education has never been held to be a fundamental right.

A state or local government which is unwilling to provide equal school facilities to all races and nationalities can stop providing any schools at all (as a couple of states and several localities did in the ten years following the Brown v. Board of Education decision.) And there is no constitutional ban on governmental discrimination against the poor as such, so that public school systems which (like banks) provide adequate resources only for those who don’t need them, are under no constitutional mandate to do otherwise.

Even more startling from the point of view of classical political theory, the Supreme Court has stated in DeShaney vs. Winnebago County (1982) that state and federal governments have no constitutional duty to protect the citizen against private violence. (But, presumably, any protection it does provide must be equally distributed among racial, religious, and ethnic groups.)

Beyond these specific shortcomings, there is a basic flaw in the Fourteenth Amendment and the legislation implementing it, which forbid violations of individual rights only where they involve inequality and discrimination against specifically defined groups. Thus, the rationale for banning sexual exploitation on the job is that the boss who requires sexual favors from one gender but not the other as a condition of advancement is discriminating against people of the former gender. This rationale would leave the exploited employee with no recourse against sexual extortion from a bisexual boss.

Similarly, state-run colleges and universities that are not permitted to discriminate by reason of race, religion, sex, or handicap, can quite freely discriminate on the basis of income and socioeconomic class. There is no right to be free from sexual extortion on the job; there is no right to education as such. There is only the right not to be extorted or barred from school by reason of race, religion, etc.

In short, we need to re-examine, from the ground up, the whole notion of “fundamental rights.” The “equal protection” model, at best, sets up a lowest common denominator which, on occasion, can quite legally be set at zero. And, by defining a limited number of unacceptable bases for distinguishing between applicants for a particular benefit, it sets up an inevitable conflict between the groups specifically protected from discrimination and other, often equally disadvantaged, groups with no such protection. The result is the unedifying spectacle of a whining contest, to determine who has suffered the most discrimination most recently and is therefore most entitled to redress.

For instance, the federal courts have held that an otherwise perfectly qualified person can be denied admission to professional school or a professional license because of being fat, having a “sloppy personal appearance,” or having an “abrasive personality.” The only bases for legal attacks on such policies have all had to do with sex discrimination, and were available at all only because so far, the only victims have been female. The courts have, not unreasonably, responded that they were offered no evidence that a fat, sloppy, or abrasive male would have been treated any differently. Absent proof of ethnic or sex discrimination, they were powerless to act. More recently, efforts have been made to give obesity the legal status of a disability, thereby placing fat people in a group with at least some official protections. Such jerry-built rationales should not be necessary. Once the bona fide occupational qualifications for a particular license or position are established, anyone who is denied access for any other reason (other than “we’re not hiring right now” or “we already hired somebody else”) should have a legally cognizable claim. That is, people should have a fundamental right not to be denied employment except for bona fide occupational or economic reasons.

A clearly defined system of fundamental rights to which all citizens and residents of the U.S. are equally entitled, would obviate many of these problems. Likewise, a clear delineation of the ways in which government may and may not forbid violations of individual rights by other individuals and private organizations is crucial to the continued viability of our polity.

All of these omissions could be remedied by a good job of redrafting. An even better result might be achieved by taking seriously the Preamble to the current constitution, which mandates the government, not merely to “provide for the common defense” and “insure domestic tranquility” but also to “promote the general welfare.”

These suggestions are not intended to be exhaustive. On the contrary, they should be a beginning of discussion. What matters from our point of view is that there should be some progressive agenda for a constitutional convention, to which serious study and thought has been devoted. There may be spinoffs and fringe benefits to the proces of debate and research setting up such an agenda. Much of it, for instance, could also be a basis for a legislative agenda, or for rewriting or amending state constitutions. We have nothing to lose and much to gain by doing it, even if no constitutional convention is ever called. And if, against all expectations, such a convention is convoked, we will not be caught with our progressive pants down, and may even achieve some of our own goals.

Red Emma

Politics and the English Language II

July 27, 2010

Far be it from me to aspire to the heights of Orwell on this subject. But it seems to me that there are things he missed, perhaps because he had too much faith in the intelligence of the average reader, or because that intelligence has gone downhill considerably since Orwell’s time. Today, it seems to me, we need to look, not at how writers deliberately deceive readers, but at how readers accidentally but inexorably deceive themselves in the process of reading. One of the basic axioms of communication, although it gets little attention from the “experts” today, is that if anything can possibly be misunderstood, it will be. In fact, there are reliably predictable ways in which that misunderstanding can be expected to happen. Textual scholars as early as the fifth century C.E. discovered some of them in dealing with different manuscript versions of the same text, because obviously the copyist of one or the other manuscript had copied wrong where they differed. A whole set of rules emerged on how to choose the variant most likely to have been the original–for instance, always choose the most difficult version of the text, since an erring copyist is most likely to have miswritten by simplifying the original.

A similar process has been proved to be at work in the development of rumor–Gordon Allport has written a short classic work on the subject. As a story circulates, it will become simplified; the inconsistent elements and apparent digressions will disappear; gaps in chronology will be filled; and in general, the story will develop a plot of its own, dominated by the elements the various tellers consider most important.

At the other end of the spectrum is the drafting and reading of legal documents. Lawyers construct documents with the assumption that every word counts, both by itself and in relation to the document as a whole. And they read other people’s documents with the same assumption, on the lookout for a word unwisely inserted or omitted, resulting in a meaning more favorable to one’s own client that to the drafter. Which accounts for a great deal of the apparent repetition in legal documents (“give, devise, and bequeath,” “on or about May 15, 1974,” “lease, sell, let, convey,” and so on)–it is an effort to make sure nothing useful to one’s client is omitted.

Unfortunately, the discipline of reading a document with careful attention to the meaning of each word, its relation to its context in the document, the import of the document as a whole, and the document’s relationship to its social/political/ historical/economic/etc. context, is normally reserved, among non-lawyers, for the Bible or the Constitution. Those of us engaged in writing less weighty material have to anticipate that it will be read the way most people read most things–once-over- lightly, with ample opportunity for the same distortions that account for miscopying of texts and the development of rumor.

To begin with, what most people read is almost never precisely what was written, once we get beyond the basic simple sentence of ten words or less. Most people not only do not absorb everything they see on paper, they actually add to their understanding of the material things that were never in the original. And, worse still, the average reader is most likely to distort his/her reading when it involves the things most important to her/him.

Which brings us to the drafting of political documents, which are intended to be instruments of persuasion. The whole point of a well-written political document is to speak to the reader about something the reader considers important–and is therefore most likely to misconstrue. The better the writer succeeds in addressing the reader’s deepest concerns, the more likely the document is to be misread.

Specifically, the first words to go, ‘twixt writer and reader, are the qualifiers–“most”, “many”, “some”, “occasionally”, “frequently”, “rarely”, and so on. You see qualifiers all over the place in advertisements, because the advertisers’ lawyers put them in so as to avoid charges of false advertising from the FTC’s lawyers. But the only reason anybody else uses qualifiers is to avoid flak for over-generalizing or sounding dogmatic. For that purpose, the use of qualifiers almost never works–usually, the reader ignores them entirely, and is likely to consider the writer dogmatic and over-generalizing anyway. At best, the more sophisticated reader may conclude that the writer is dogmatic and over-generalizing, but has competent legal counsel.

Next to go is the Ritual Disclaimer/Concession to the Other Side’s Arguments. The purpose of inserting it is to sound reasonable, and to avoid sounding dogmatic. The actual result is, in most cases, that the RD/COSA is either ignored and the writer’s position taken as unreasonable and dogmatic anyway, or, worse still, it isn’t ignored, and the reader concludes the writer either doesn’t know what he’s talking about, or lacks the courage of his convictions. Sometimes the reader even ignores the RD/COSA on the conscious level and concludes the writer is unreasonable and dogmatic, while nonetheless retaining the subconscious suspicion that the writer also doesn’t know what he is talking about and/or lacks the courage of his convictions. The only exceptions to this predicament that I have seen are the rare instances in which a writer actually does a brilliant job of stating the opponent’s best case, and then demolishes it. That takes rhetorical genius rarely seen in today’s political arena.

At the other end of the political writer-reader gap is another set of problems. The first occurs when the writer(s) water down an originally unified and clear position in order to sound reasonable and avoid alienating possible supporters. In practice, the less likely supporters will probably ignore the modifying statements, and construe the document in pretty much the way the writer(s) originally intended, if not stronger. The more solid supporters of the original position may resent its dilution.

The second problem occurs when the original document is the fruit of hours of painful negotiation among different factions, some of whom are not willing to sign a statement unless it says “some As are Bs,” while others cannot associate themselves with it unless it says “most Bs are not As,” and still others will denounce it and its authors in the public press unless it says “many Bs are Cs,” and so on. Here again, the readers are likely to interpret the statement in the most extreme possible way. Indeed, the readers with different positions on the issue in question may well read the statement in contradictory ways. Most likely, each will read it in the way s/he finds least acceptable, so that a compromise statement may succeed only in alienating several opposing factions at once.

The third and most difficult situation occurs when the writer’s original position is inherently complex and ambiguous, and cannot be stated simply without losing its meaning. In which case, the meaning is doomed, at least until the next generation’s textual scholars get hold of the statement, if they ever do.

Additional handicaps can be imposed upon the already-irksome writer-reader relationship, for instance if the intended reader is in some way handicapped beyond the range of “normal” distortion in comprehending what s/he reads–e.g., by being only marginally literate (an increasingly prevalent problem among even the most intelligent younger readers) or by not being fluent in the writer’s language.

I’m not suggesting that careful word-for-word drafting of political statements is a total waste of time. But those who engage in it should at least know what it is useful for. It can be very useful as a way of clarifying one’s own thinking. Where compromise among differing factions is involved, the process can be useful in clarifying and sometimes even reconciling their differences. Where the making of a statement is itself an act of political commitment, doing it on the basis of a lowest common denominator, so as to involve the largest possible numbers of people without diluting their fundamental beliefs, is an excellent organizing tool.

But all of these are benefits for the writers, and do not involve the writer-reader relationship at all (except insofar as the process of gathering signatures and endorsements may transform readers into honorary writers.) What we cannot expect of a political statement written on the merely cognitive level, is to transform a public readership into a constituency.

I’m not saying that that transformation is impossible. But it has to be done with language deliberately calculated to invite emotional reaction rather than analysis. Analysis rarely changes anybody’s mind about anything; at best it serves to rationalize a choice the emotions have already made. Obviously, some very corrupt and dangerous politicians have used this fact to perpetrate atrocities through the ages. But I think it’s possible to use emotional appeal honestly, in the service of a cause that can be justified by an honest analysis. That, gentle reader, must await the writing of a whole other essay.


A Day Like All Other Days…

June 29, 2010

…filled with the events that alter and illuminate our time, but –you get the idea. Yesterday was fairly amazing. The Supreme Court says the Second Amendment applies to state and local governments. (And Justice Stevens has his last day on the court, and Justice Ginsburg’s husband dies.) John Burge is found guilty of perjury and obstruction. Alex is becoming a hurricane. Eleven Russians are busted for –what? Spying? Not exactly.

Burge is probably the least familiar item on this list, to most readers. He was for many years a police commander in Chicago, in one of the more crime-ridden districts. In that capacity, he was accused of torturing suspects to extract confessions, some true, some not. He was sued for many of these incidents, and cost the Chicago taxpayers a whopping chunk of change. But nobody got around to bringing criminal charges until after the statute of limitations had run out. So the feds ended up charging him with perjury and obstruction of justice in the various civil cases. Burge had the nerve to testify, not only that he had never committed any act of torture, but that he had never known of any such act while he was on the job. Apparently he expected the jury, which was after all composed of people too old to believe in Santa Claus and the Tooth Fairy, and therefore could not possibly have believed that Burge never even knew of the torture of suspects, to approve it by acquitting him with a wink-wink nudge-nudge, because after all, the victims were “rats” and “garbage.” It would have been a ringing endorsement of government by cop. And the jury, bless their hearts, refused to do it. Three cheers!!

Then there’s the Second Amendment. This one scares me. Admittedly, Chicago’s stringent gun laws have not prevented 80 shootings and 13 gun deaths in the last two weeks. But legalizing the guns already on the street can only make things worse. From a lawyer’s point of view, what this decision has probably set off is a stream of litigation similar to that spawned by Roe v. Wade. The Court spent the twenty years after Roe parsing out what state and local restrictions on abortion were an “undue burden” on the constitutionally established right to choose to terminate a pregnancy. Now we’re in for twenty years or so of working out what state and local restrictions on gun ownership are an “undue burden” on the Second Amendment right to bear arms. Will the automobile analogy hold up, so that it’s okay to require a license, and registration, and a test of competence, and even education? How about ballistic “fingerprinting” of every gun? Liability insurance? One can only hope.

Russian spies, after all these years? This one is plain mysterious. Apparently they’ve been under surveillance for ten years. And the charges have to do with “infiltrating” so as to be in a position to spy, rather than actually spying. They are charged, as nearly as I can tell, with behaving like ordinary middle-class American family men and women. O Levittown, where is thy sting?

Alex is on its way to becoming a Level 1 hurricane. It won’t directly interfere with the BP efforts at cleanup, but it won’t help any either. And speaking of the BP cleanup, every time I turn on the tv these days, I encounter a super-slick (you should pardon the expression), beautifully produced BP ad telling us how wonderful their cleanup work is and how well it’s progressing. Which they evidently expect the American public to accept at face value (not unlike the Burge defense expectations of the American jury.) Those ads obviously cost a mint to make. They were necessary mainly because BP is shutting the press out of the scene of the crime–oops–cleanup, so we don’t get any other information about it. If the press were allowed in, obviously, they’d tell us all about it on their own dime. And BP could use its ad budget to better fund the cleanup. We should be so lucky.

A bit further back in the news, a 5-inch turtle kept an AirTran flight on the ground in Atlanta until the jackbooted thugs of the TSA made its 10-year-old owner take it off the plane and throw it in the trash. (BTW, in looking up this incident I discovered that TSA also stands for “Turtle Survival Alliance.” Really.) But this story does have a happy ending—eventually the turtle, none the worse for its traumatic experience, was reunited with the owner’s father. OTOH, last week, when another plane landed unexpectedly in the middle of the night at a small “international” airport, the passengers were kept on the plane for three hours because no TSA or ICE staff was available to check on them. So, just in case any of them might be terrorists or illegals or whatever, they were not allowed to set foot on US soil. TSA, in short, is now replacing school administrators as the apostles of Zero Tolerance, which is Newspeak for Infinite Control, Zero Common Sense. (But no turtles were harmed in the earlier incident.)

Red Emma

Gitmo for Perverts: The Supremes Do It Again

May 18, 2010

This week’s Supreme Court calendar is a win-some-lose-some scenario. It’s unconstitutional to lock up juveniles for life with no parole, for any crime that does not involve homicide, they tell us. So far, so good. But it’s okay, they announce, to keep sex offenders locked up indefinitely, even after they have served out their sentences. Not so good. I’m not necessarily objecting to the result. If we really don’t know how to rehabilitate sex offenders, life behind locked doors may be the only solution. My problem is with the procedure.

If we really believe that sex offenders cannot safely be returned to live among us, our elected representatives in the legislative branch should say so, by making such offenses punishable with life-without-parole. Then that sentence should be imposed by the judicial branch after a proper trial. That’s called due process, without which, according to the Fifth Amendment, nobody should be deprived of life, liberty, or property.

If we do not trust out elected legislators to accomplish this task within the bounds of the Constitution, I think it’s fair to wonder why. I think the Framers had a lot more faith in states, and their governments, and their lawmakers, than we do. Admittedly, I’m from Illinois, which is probably one of the worst of this year’s horrible examples. I wouldn’t trust our legislature to protect me from an invasion of the Iowa Homosexual Conspiracy. But in fact, most of our state governments have fallen a far distance from the 1780s. It’s hard to believe in subsidiarity when our governments get less competent and more corrupt the closer they get to home.

The legality of keeping “unlawful combatants” locked up indefinitely without trial is still being worked out. But the sex offender decision makes the outcome a foregone conclusion. If we can do this to an American citizen after he is convicted in a proper trial in an American court, we can do it to a nameless foreigner, even without trial or after a determination of innocence.

This is an odd decision, kind of like Kelo vs. City of New London ( In both of these cases, I was amazed to find myself agreeing with Scalia, Alito, and Thomas in the minority. However, given the position of that august trio on the Gitmo detainees, I think their position on limiting governmental power is not a hardline principled one. They just draw the line a bit short of where I do. I can hardly wait for the Season Finale.