Anarchy X: The Ninth Amendment

Posted: September 12, 2012 | Author: | Filed under: Anarchy X, Culture, Politics | Tags: , , , , , , , , , , , , | Leave a comment

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

At last we come to what I have to admit is my favorite amendment. If for no other reason, I love this amendment because it is the final answer to every question asked by most of the self-proclaimed “strict constitutionalists” I have met. In most cases these would be people who are looking for excuses to legislate their own petty meanness on the rest of the world, and when you call them on it, they have a standard fall back: their shield, their shelter, their raison d’étre almost universally seems to consist of “where do you find that right in the Constitution?”

Right here. Here it is. In the same way that the justice system lays the burden of proof on the prosecution, and for many of the same reasons, so too is the burden of proof that the government, that we the people have the right to take an action against other people. For my money this is the defining feature of the Bill of Rights, and in many ways the Constitution itself.

It is worth noting that the Ninth Amendment only exists in large part because of the debate about the Bill of Rights itself; by the very notion that there should be no need to specifically enumerate rights that would accrue to the people in a country where the powers of the government would be spelled out quite specifically, and the government would have no further or additional powers beyond those that had been granted to it by the very document that was being amended. It’s a nice thought. Any student of history, classical or modern, political or otherwise, should know it’s also a naïve one. So should anyone who has read Leviathan by Thomas Hobbes.

Call me cynical if you must, but it is my belief born out of study and experience that any human system built for managing people will do two things: grow and accrue more power unto itself. It is not (necessarily) some corrupt plot, it is simply the spontaneous order of human systems. Governments are designed to govern; that is their purpose. They can only do that so long as they are either stable or growing. No system can remain viable if it is stagnant. Therefore, for a government to remain viable it must continue to grow, and the only way for a government to grow is to become more powerful, and thereby more intrusive.

Having delineated specific areas and ways in which the government can’t grow in the first eight amendments, there are two possibilities left. The first is the Federalist assertion of a sort of “gentleman’s agreement” of government, that the rights of the people would be implicitly protected simply by virtue of having delineated the powers the government has. Which has worked so well up to now. The second possibility is finding new and interesting ways to interpret the powers granted by the Constitution, including simply ignoring any rights people might reasonably expect to enjoy, including those grounded in the common law tradition from which the Constitutional government evolved.

The modern upshot of this is widespread. As society has evolved, we have changed in our expectations of what it means to be a part of that society; we have even (thankfully) changed in our attitudes and beliefs about what it means to be human. We have recognized and defended rights along the way that are not specifically enumerated in the Constitution, but that are grounded in the same tradition as the other rights that are. One example is the right to privacy, which is often assailed by the aforementioned “where do you find that right in the Constitution?”

Let me be clear: I believe that all the rights that are defended and provided for by the Constitution, regardless of what philosophical approach you may take to it, derive from the following:

We the People of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common
defence, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for the
United States of America.

That having been said, I see nothing that runs counter to a right to privacy. On the contrary, privacy in one’s person and effects seems to me to be eminently just, promotes tranquility, adds to the common welfare, and is one of the greatest blessings of liberty I can imagine. If you don’t believe me on that last point, throw wide the settings on your Facebook profile and wait five minutes.

Not everything people claim as a right truly is one; I get that. But to say that it must be spelled out to exist is absurd. The law is and always has been a lagging indicator of the culture at best, and a drag on the culture at worst. Far better to put the burden on those who would control us than on those of us who would be free.

Life Is A Game. What Achievements Have You Unlocked?

Posted: September 10, 2012 | Author: | Filed under: Culture, Humor, Internet | Tags: , , , , , , | 1 Comment

H/T to Barnaby Felton. He posted this on Facebook a while back and it got me thinking. If life were a game, what achievements would it have? Even better, what achievements SHOULD it have? And which ones would I have unlocked by now? Which ones would I be looking forward to?

Below is my list of achievements, first the ones I’ve already earned and then the ones I’m still working on (or never intend to get, but just love the idea of). They’re not always things I’m necessarily proud of, mind you, but sometimes survival is an achievement all its own. I encourage you to submit your own in the comments, but please do your best to follow form. Give it a title and a description, and where possible be creative.

Unlocked Achievements

Level 20 – Turn 20 years old

Level 30 – Turn 30 years old

Man’s Best Friend – Own (or be owned by) a dog

Cat’s Cradle – Own (or be owned by) a cat

Full of Pride – Own (or be owned by) more than one cat at once

Yakety Yak – Do chores for your parents

Let’s Do the Time Warp Again – See the Rocky Horror Picture Show in the theater at least twice

Up the Creek – Go camping

Drinks Are On Me – Turn the legal drinking age in your country or state

Fade to Black – Drink so much that you pass out

You Can’t Handle the Truth! – Get caught in a blatant lie

And the Oscar Goes To… – Make a scene in public

Wage Slave – get a job

Tithing to Uncle Sam – Pay income taxes

Hate the Playa – Badmouth an ex

Hate the Game – Swear off dating for at least six months

I Put a Ring On It – Get married

Hey Mo(hawk)! – Have a mohawk

In the Midnight Hour, She Cried Mo(hawk), Mo(hawk), Mo(hawk) – Have more than one color of

mohawk at some point in your life

Bob Dobbs – Be accused of being a slacker

Part of the System – Vote in a government election

I Demand a Recount! – Have your candidate lose in a government election

Y’ain’t From Round Here, Are Ya? – Move at least 500 miles for work or school

Under The Bridge – Deliberately troll someone online

Achievements I’m Still Working On

Level 40 – Turn 40 years old

Level 50 – Turn 50 years old

Level 60 – Turn 60 years old

Level 70 – Turn 70 years old

Level 80 – Turn 80 years old

Level 90 – Turn 90 years old

Level 100 – Turn 100 years old

Older Than the Hills – Turn 101 years old

Leader of the Pack – Own (or be owned by) more than one dog at once

I Got Music, I Got Rhythm – Learn to play a musical instrument

Rob the Cradle – Date someone at least ten years younger than you are

Rob the Grave – Date someone at least ten years older than you are

Romero – Be personally responsible for a worldwide zombie apocalypse

Resource Hog – Have a child

Breeding an Army – Have more than two children

Jailbait – Spend the night in jail (including the drunk tank)

Macgyver – Improvise a mechanical devise to get yourself out of a jam, preferably one involving

terrorists

Gilligan – Join the Navy or Coast Guard

The Skipper – Have command of a boat (civilian or armed forces)

The Millionaire and His Wife – Marry into money

The Movie Star – Get a lead role in a motion picture

The Professor and Marry Ann – Create an item out of common objects that completely defies the laws

of science using only the help of your lab assistant, a simple farm girl from Kansas

Script Kiddie – Hack a computer system

Haxx0r – Hack a computer system using your own code

Neo – Hack a government computer system using your own code

White Hat, Black Hat, They All Look Good On Me – Work computer security before or after hacking a

computer system

I’m With the (Rubber) Band – Go bungee jumping

Lunatic – Jump out of a perfectly serviceable airplane in mid-flight (parachute optional)

Patriarchal Misogynistic Tendencies

Posted: September 7, 2012 | Author: | Filed under: Culture, Politics | Tags: , , , , , , , , , , | 11 Comments

Recently I’ve been reading a lot more internet chatter about feminism, which I can only take to mean it’s on the rise again. This wounds me greatly, as I had hoped we lived in a Post sort of world. You know, post-racial, post-gender, post-political, Post brand cereals, whatever. But I guess that ship has sailed, and we’re right back to having the same arguments that we’ve been hashing over (and failing to reconcile) for decades.

So what does this mean for me personally? To be honest it means I’ve had to confront my own patriarchal misogynistic tendencies. Yes, I admit that I have them. Of course I have them. C’mon, I was born in the mid-seventies and educated in public schools. I’m lucky I can even spell “patriarchal misogynistic tendencies” let alone admit having them. And I do. But just like paranoid schizophrenics can still have enemies, misogynists can still be right from time to time.

Here’s my favorite example: I’ve had a crazy ex-girlfriend or two. Now don’t get me wrong on this; I actually have several exes, and for most of them I hope I hold the place of “pleasant memory”, and I more likely hold the place of “bullet, dodged.” Most of those ladies I don’t even think of anymore, and while I may have in my callous youth said some unkind things about them I at least have enough class to regret it. But the fact is I do have one or two truly crazy ex-girlfriends. I even have objective witnesses of both genders to back me up. But here’s the problem: everything I’ve seen in the feminist orthodoxy says that’s wrong. That somehow I’m as much to blame as they are, if not more so, simply because I was a willing participant in the relationship. Boy, that’s not blaming the victim much, now is it? Only I can’t be a victim, because of my gender. That’s one.

My next favorite is things like quotas, preferences, and government set-asides. There are plenty of these designed to help women get ahead in school, in business, and in civil service. Setting aside the question of their efficacy, I wonder about their essential morality. Is this just? Is it right to single out one gender and favor them over another? And if so, for how long? Sure you may feel you are correcting some sort of societal imbalance, but when there’s no limit set the assumption is that injustice is either endemic to society or the individuals that comprise it (which are basically one and the same). With women graduating from college at higher rates than men and getting more advanced degrees than men these days, have we reached the day we no longer need these set asides? If not, will we soon? Will we ever? That’s two.

And hey, for the third issue, let’s go for a hat trick of issues that all tie together: divorce, custody, and child support. Despite the great gains that have been made by women in the workplace and men in the home, the default assumption that is near impossible to overcome in any divorce proceeding is that a man should support a woman “in the style she has become accustomed to”, and if there are kids they will almost always go to mom unless dad has absolute iron-clad proof she is a drug-addled child molester. In that case the kids will probably wind up with her parents. Fathers without custody will be tasked with child support (don’t get me wrong, I’m all for that) and hunted down like the dogs they are if they miss a single payment (a bit draconian, but hard to argue with), and in the rare event a mom doesn’t have custody she has to… well, how often are they ordered to pay child support? And when was the last time you heard the phrase “dead-beat mom”? And please don’t feed me some line about women being “nurturers”. Remember, we don’t assign gender roles in this classroom. So that’s three.

Last but not least is a real touchy one and the one I expect to catch the most hell over, but I feel the need to say it since nobody else will. First a clarification: I am not taking a stance on abortion here. That’s another post entirely. I do have an opinion, a strong one, but I don’t want to cloud the issue with that argument. Let’s simply take as given that Roe v Wade is the law of the land. So women have the right to decide, once they are pregnant, whether or not they will have a child. What right do men have in this arrangement? If he disagrees with her choice, either way, he is powerless. Completely at her mercy. He can beg, plead, persuade as best he might (and please don’t suggest threatening because I will gladly see a man in jail for that), but he has no recourse before the law. If you believe that is fair, turn the situation around. Put a woman in ANY situation in which she is bound for almost twenty years by a single decision that a man makes on her behalf, even if he is bound by that same decision, and tell me that it’s still fair. Here’s an alternative: let him surrender his parental rights if he doesn’t want the child. It’s not everything, but it’s more than nothing.

Life’s not fair. I get that. But why is it that women get to cry “life’s not fair” and call it a movement? Why do men have to stand by on the sidelines and simply accept the slow chipping away at our dignity and all the good we have in order to make the world an acceptable place? There is injustice in the world, this I understand; that is a fact that is not limited by gender, ethnicity, or politics, and we should all stand against it. But robbing from Peter to give to Paulina does not create a better world; injustice is not the answer to injustice; misandry is not the cure for misogyny.

 

Related posts:

The Road Away from Hypocrisy

How Is This Still a Thing?

Whose Body Is It, Anyway?

Anarchy X: The Eighth Amendment

Posted: September 5, 2012 | Author: | Filed under: Anarchy X, Politics | Tags: , , , , , , , , | 1 Comment

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Of all the amendments to be interpreted and re-interpreted over the history of our nation, it may be the eighth amendment that has seen the most action, and is still in the greatest contention to date. Even the first and second amendments haven’t evolved as much, since they do not touch so deeply on the basic principles of what make us a society and what makes us human.

It is the specific clause of “cruel and unusual punishment” that seems to be the sticking point in most cases, and it is the one that has given me the greatest personal turmoil. In my youth I was a hardliner in many ways, for while I believed very much in the idea of a justice system that gave every possible benefit to potential defendants, I also believed that prisons were places of punishment, not rehabilitation. I also was very strongly in favor of the death penalty, in particular in cases of the most heinous crimes. I was convinced that there were some people the world would be better off without, and it was the right and the duty of society to deal with those people in the most straightforward manner possible.

I do not write these words with glee, nor do I write them with contrition. Rather I write them so as to set a basis of understanding of my own personal journey of discovery for those who may feel as I did then, or who feel differently than I do now. My hope is that by understanding the path that I have taken you may in some way understand why I believe as I now do, and even if you still disagree you may at least take some time to consider why you believe what you believe.

In terms of the treatment of prisoners, I used to believe they should be treated no better than the minimum necessary for survival. Food, shelter, and clothing were sufficient; after all, they had already proven they were not willing to contribute sufficiently to society to be a part of it, so why should society pay to keep them in any better style than the least necessary? I saw nothing cruel in this, although it might seem vindictive; after all, if I had to work to support myself, they were at least better off than I was. I have come to realize I at least have something they do not; I have the freedom to choose what I want, and if my choices are constrained by my circumstances, then so are theirs, and theirs are even more artificially constrained by having their liberty taken, even if that is the result of their own actions.

Further, it is a short-sighted thing to suggest that we should reduce humans to the level of nothing but animals, with nothing to fill their days but food, shelter, and the barest of covering. If they have nothing to strive for, no hope that tomorrow will be if not better than today than at least different, that is a cruelty and inhumanity all its own. It also breeds anger and contempt toward society among those who will someday rejoin that society; even if you do not believe prison is a place for rehabilitation, you must at least recognize the potential to create better or worse citizens among those who come out. Providing even simple things like books, athletic equipment, and exercise space allows prisoners a chance to engage body and mind. Television and internet access, even if it is monitored and controlled, provides a connection to the outside world that keeps them engaged and may even keep ennui and desperation from setting in. If nothing else, it shows in us a level of humanity that we condemn others for lacking.

The final hurdle for me was the death penalty. Setting aside the numerous studies showing the uneven and unjust applications and use of the death penalty, which no rational or honest person should, as well as the studies showing the economic unfeasibility of it, which counter any argument on those grounds; I feel there is an ethical case to be made for the elimination of the death penalty. It is not a simple case, nor is it an absolute one, but I believe it needs to be made.

The justification for the death penalty, if there is one, is that it is the ultimate penalty, and it is only handed out for the most heinous of offences, those for which there can be no lesser price. Even if one were to accept that premise, there are other factors to consider which make that untenable. I do accept that the death penalty is the ultimate penalty, for no matter how many years you spend in prison, there is always the hope for redemption, and there is always the chance of parole. There is no coming back from the grave.

In a truly fair justice system, we would ensure two things: first, that the penalty matches the crime; and second, that the bar for a guilty verdict matches the potential sentence. Obviously this would make for a convoluted and difficult system, as we would have many different potential hurdles for prosecutors to reach depending on the severity of a crime, so instead we settled on one that seems to work in most cases and that, at least at first blush, favors defendants: “beyond a reasonable doubt”. But is this enough when a person’s life is on the line? Is “a reasonable doubt” sufficient to make a person pay the ultimate price?

Absolute justice calls for absolute certainty. That is the conclusion I finally came to. Regardless of how you might feel about the morality of the death penalty in the abstract, or even in specific cases where you are absolutely sure someone is guilty, is it enough? Extraordinary cases make for bad law. Or to put it another way, are you unable to think of a single time in your life when you were absolutely sure about something, only to find out you were wrong? Care to bet your life on it?

Care to bet someone else’s?

I don’t. Not anymore.

The Dating Rorschach Test

Posted: September 3, 2012 | Author: | Filed under: Culture, Dating, Humor | Tags: , , , , , , | 7 Comments

I’m sure everyone has their own guidelines for what makes a good relationship. Between two friends of mine I have heard the entire spectrum, from a simple “am I as happy with this person three months in as I was the day we first met?” to a test that runs to several pages (I am not making this up). For myself, I long ago developed my own simple guidelines that have worked exceptionally well, and that I am at last ready to share with the world. They are as follows:

  1. Can I wake up next to this person without flinching?
  2. Can I put up with their shit?
  3. Can they put up with my shit?

Now, before I catch any grief over these questions, allow me to point out that this is the Dating Rorschach Test™. What you get out of it is what you put into it. Let’s take it one question at a time and you’ll see what I mean.

Can I wake up next to this person without flinching?

I’ll admit it, when I first came up with this question, I was about 15, and it was my entire standard for dating. And yes, it was all about looks. But then, as I got into my early twenties, it took on new depth and dimensions, like carefully leaning over and checking her ID, hoping not to wake her while I make sure I won’t get arrested- well, anyway, the point is I grew as a person. By the time I met the woman who would become my wife this question took on some real meaning. Will I still have self-respect when I wake up? Can I seriously see myself discussing matters of import with her? Does she fulfill my intellectual and emotional needs as well as being beautiful? (Hey, I never said I stopped being shallow). So what do you need in order to be able to wake up next to someone without flinching?

Can I put up with their shit?

I added this one in when I was about nineteen or so, after a string of short, tumultuous, and painful relationships that seemed to have one common thread: wacko girlfriends. I was absolutely convinced that every single girl I had dated to that point was batshit crazy. Quite the coincidence, and if I had any concept of basic probability I would have seen the flaw in my logic, but it took another few years for me to sort that one out (see below for that). The one good thing that came out of it was that I was able to recognize that, if I was going to sustain any kind of relationship, I was either going to have to find the perfect woman who had no flaws whatsoever and then convince her that she wanted to date me, or I would have to learn to live with another human being’s imperfections. All evidence to the contrary notwithstanding, even I didn’t have the kind of hubris necessary for option A, so I went with B. I know this doesn’t sound like much of a leap, but seriously, I’ve seen a lot of “adults” who still need to pick up on this one, so cut my younger self a little slack. The key, I realized, was to find someone whose craziness was compatible with mine, or that I at least didn’t find too noxious.

What does this mean for you? Whatever you need it to mean. Does leaving dirty socks on the floor drive you crazy? How about owning too many shoes? How do you feel about Friday night being “hangin’ with my boys night”? Or saying “whatever” and walking away being considered a perfectly acceptable way to end a conversation? Think about it, because what seems cute now might getting annoying a year from now, and what’s annoying now will drive you batshit crazy a year from now. And after almost a decade dating and married with my wife, I can say this is one of the most important points to consider. The other one is…

Can they put up with my shit?

So it wasn’t until I was in my mid-twenties that I figured this one out. As one Demotivational poster points out, “The only consistent feature in all of your dissatisfying relationships is you.” I finally realized that it’s not enough for me to be happy with the person I’m with; it might be within the realm of possibility that it’s just barely a chance there could be some fraction of a notional option of a thought I could be somewhat close to less than perfect (I’m able to acknowledge my flaws). Put another way, I’m an acquired taste. I may even have the occasional annoying habit, like leaving dirty socks on the floor, according to my wife. Although I still swear that was the dog. That we didn’t get until we had been married for a year. He has a time machine, like Mr. Peabody. He’s been using it to get me in trouble for years.

The point is tolerance in a relationship is a two-way street. We always think of relationships as being about love and respect and sex and sunshine and rainbows and all that jazz, but the reality day to day is that more often than not relationships are about listening to somebody tell the same story you’ve already heard a hundred times and I really don’t care about your level twenty barbarian honey but you go ahead and tell me anyway if it’ll make you happy and- sorry, got a little carried away there. What was I saying? Oh yeah. The point is relationships are about living with another person, in close proximity, every day, hopefully for the rest of your life. That’s a recipe for friction more often than happiness, which is why you need to find someone who can tolerate your bad habits, whether it’s leaving dirty socks lying around, telling the same stupid stories over and over, or blaming it all on the dog.

The Dating Rorschach Test™

So there you have it. Maybe you agree, maybe you don’t. Maybe you have your own standards for finding a mate. But at least I can say mine worked for me. And in the end, that’s all I ever wanted out of it.

The Non-Presidential Debates – An Open Challenge to Democrats and Republicans

Posted: August 31, 2012 | Author: | Filed under: Politics | Tags: , , , , , , , | Leave a comment

As we continue to roll through the election season, political debate seems to have devolved into the mere shouting of talking points, playing of sound bites, and worst of all, posting of mindless internet memes on social media sites. In an effort to change up the dynamic a bit, I thought I would challenge my friends on both sides of the aisle with a chance to defend some of their positions that I find a little contradictory, difficult to understand, or just plain nutso. Considering that I come from a direction that both sides tend to consider equally insane and out of touch, I think that makes me a reasonably fair moderator in that regard.

So, without further ado, I present my list of questions, in no particular order. I have alternated them, one for each party, although anyone may feel free to jump in and defend any position. I only have two rules. The first is that you can only initiate a comment string with an explanatory comment. Simply adding “yeah, that makes no sense!” doesn’t enhance the discussion. The second is that replies to comments be respectful or they will be deleted. Debate is encouraged, trolling is not. I have a banhammer and I’m not afraid to use it. Now, let the games begin!

1. Republicans: Explain to me how gay marriage is in fact a danger to traditional marriage. Cite specific examples without referring to religion.

2. Democrats: Show me specific studies that prove the idea that banning guns (or significantly restricting gun ownership) actually makes people more safe. Account for crime data for Chicago and Washington, D.C. vs. similar sized cities while they had gun bans in place. Also account for countries that have more restrictive gun laws and higher rates of gun violence than the United States (I can cite sources if needed).

3. Republicans: Explain how drug prohibition, specifically marijuana prohibition, makes us safer than the alternative. For bonus points, justify the cost of enforcing the drug war while cutting spending on schools, health care, and space exploration.

4. Democrats: Explain why people have a right to free health care but don’t have a right to purchase a 32 oz soda or be given baby formula when they have a new child.

5. Republicans: Why is it acceptable to force people to use American labor by preventing immigrants from working in this country regardless of their status, but unacceptable to force them to use union labor?

6. Democrats: Why is it acceptable to force people to join unions in order to work in their chosen field but unacceptable to deport illegal aliens working in America unlawfully?

7. Republicans: Why is it unacceptable to pass a major new healthcare entitlement when you’re a Democratic president (the Affordable Care Act), but it’s perfectly acceptable to do so when you’re a Republican president (the Medicare Prescription Drug, Improvement, and Modernization Act)?

8. Democrats: Why is racial profiling bad but socio-economic profiling good?

9. Republicans: Are you seriously still denying man-made (or at least man-contributed to) global warming? Seriously? No, seriously?

10. Democrats: Conceding that global warming exists, are you really willing to give up all the trappings of civilization, including homes, food, clothes, and your iPhone in exchange for reducing the temperature in the atmosphere by 10 degrees Celsius by the end of the century? If not, what compromises are you prepared to make, and where do you draw the line?

11. Republicans: Why is it that when poor people try to get more money for social programs you refer to it as “class warfare”, but when rich people try to get tax cuts you refer to it as “the free market in action”?

12. Democrats: Assuming you favor progressive taxation, and in particular a strong tax hike on “the wealthy”, please tell me how much of your personal time and money (percentages please, not raw numbers) you have spent helping people who are not as well off as you are, unless you are certain there is nobody in the world who is worse off than you. Alternatively, cite every occasion in which you have NOT taken a tax deduction to which you were entitled.

13. Republicans: Make an honest effort to set aside your preconceived notions and talking points. Now spend ten minutes seriously imagining America thirty to forty years from now, with special attention being paid to the people who will be working in and running the place. Once you complete this exercise, please list any and all national priorities that should come before education.

14. Democrats: Make an honest effort to set aside your preconceived notions and talking points. Now spend ten minutes seriously remembering World War II, the Cold War, and 9/11, with special attention being paid to the loss of life and the horrors perpetrated by our enemies in those conflicts. Once you complete this exercise, please list any and all national priorities that should come before national defense.

Bonus question for either side: Explain to me why your restrictions on individual freedom are good while your opponent’s restrictions on individual freedom are bad. Use 5,000 words or less.

Anarchy X: The Seventh Amendment

Posted: August 29, 2012 | Author: | Filed under: Anarchy X | Tags: , , , , , , , | Leave a comment

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

To be perfectly honest, this falls into the category of “damned if you do, damned if you don’t” for me. On the one hand, I’m always a fan of keeping power as close to the people as possible, and I’ve always been a big believer in Lord Acton’s axiom of power. Give a judge a position for life, or even an elected position where most people won’t know what kind of a job he’s doing because they’ve never had a case in front of him, but hey, he’s a good guy so he keeps getting re-elected, and chances are he’s a prime target for getting bribed, same as any politician. Not necessarily directly, but golf club memberships, free trips, no interest loans for vacation homes, we all know the drill. Blackmail is always a favorite too. So jury trials seem like the way to go, especially in big money cases.

But it isn’t always that simple. Setting aside the well documented issues of race, gender, and age discrimination in jury selection (since most if not all of these studies have focused on criminal rather than civil law), there are still plenty of other issues to consider. First, there’s the question of fairness. Are we really getting justice for either side with a jury trial in some of these cases? Most of them? Any of them? As I understand it in issues of criminal law, the presumption is that if the average person wouldn’t know it was wrong, then there should be some leeway given, which is why you get a jury of your peers. Is that really what we want for cases that involve slander? Or copyright? Or patent law? These are fields that people study for decades to be specialists in, and we are asking a handful of average citizens to somehow pass judgment on which side is right.

This brings me to the second issue. When people don’t have a clear reason to take one side over the other, they will often be swayed by whoever has the better story. While there are certain basic protections against the Population Contest effect (the judge can set aside a ruling that isn’t supported by the evidence, for example), as long as one attorney can give them at least a fig leaf of cover, the jury can be lead to the “right” answer by the more persuasive story. For my money (quite literally) a good example of this is the recent decision in the Apple vs. Samsung lawsuit. In the linked article there are two examples of the vote being swung by experts telling a compelling story: the Apple attorney (and please, someone try to convince me Samsung is more popular than Apple) and the jury foreman himself, who according to ars technica said the jury “wanted to send a message to the industry at large”.

Which brings me to the third issue. In this hyper-publicized day and age, there is more than a little danger that any particular jury verdict is less about that specific case and more about something else. Whether it is sending a message, grabbing a headline, or just getting that fifteen minutes of fame that Andy Warhol promised to us all, there is no certainty in the righteousness of the common man to deliver justice when the blandishments of fame and fortune lie just on the other side of the courthouse doors. That’s no to say they won’t do their honest best or that everyone will vote one way when the answer is clearly the other way, but in the tough moment when there is no clear answer, or when you have to decide between $500,000 and $1.05 billion, that siren call is hard for anyone to ignore.

So what’s the answer? One possibility is already in use, and that’s private arbitration. I don’t mean the kind of abusive arbitration that is written into some contracts these days, “if you ever have a problem with us you have to use our arbitrator that we select, and that we pay, and oh look, he knows which side of hi bread is buttered.” I mean independent arbitrators, people who specialize in civil law and get paid out of an escrow account so they very specifically don’t know which side of their bread is buttered. Another model I heard once (and my apologies to whoever told this to me, since I can’t recall the source) is that you go one step further: you have your arbitrator (or judge), and I have mine, and there’s a third party we both agree on. Two out of three votes wins.

The truth is anytime there’s a dispute between two parties, there will never be a perfect solution that satisfies everyone (just ask any parent with more than one child). The best we can do is find a system that maximizes the good results while minimizing the bad ones.

UPDATE: For a deeper analysis of the rule of law and how private resolution can work as opposed to public systems, check out this article by Prof. John Hasnas (h/t to Kurt Bouwhuis).

This Is Just My Opinion

Posted: August 27, 2012 | Author: | Filed under: Culture | Tags: , , , , | 3 Comments

This is going to seem like an extremely petty post to some, perhaps most people, but I really need to get this out there. If I hear one more person conflate “opinion” with “belief” I am going to scream. I have very little rational basis for this; after all, if one relies on the Oxford English Dictionary definition of the two words (and I often do), they are almost functionally identical. OED, you have failed me for the last time. AGAIN!

But in many cases language is more about the connotation of words rather than their literal definition. When we speak of opinions the connotation is that there is a connection, however tangential, to the real, provable world of facts. That’s not to say all opinions are supported by facts; “in my opinion, vanilla ice cream is the best ice cream” is a valid opinion. It is not supported by facts, unless you consider the existence of vanilla ice cream to be factual support. But it at least has a direct connection to the world of provable facts (i.e. I can prove that vanilla ice cream exists.) Even professional opinions need to have some connection, no matter how tangential and tenuous (and hear I’m thinking of lawyers) to the world of real, provable facts.

Belief is a different matter. You can believe in anything you want, regardless of its relationship to the world of provable fact. “I believe in Santa Claus” is a valid statement of belief. “I don’t believe in love” is another. Neither has any connection to the world of provable fact (unless you put stock in either the official NORAD Santa tracker or the love tester at your local bar.)

Somewhat like the humble atom, the difference is small yet significant. When you claim it is your opinion that God exists, that is very different from saying you believe God exists. Your belief in the existence or non-existence of God is your own business, same as your belief in any entity that can’t be proven or disproven. But once you move it into the realm of opinion, you are asserting that it has at least a tangential relationship to the realm of provable fact, which it by definition does not. The same holds true for many other things that people state their “opinion” about.

This may seem like I’m “just arguing semantics”, and if you think I am, you’re right. And there’s another phrase I take umbrage with. Let’s see if the Oxford English Dictionary can redeem itself: “the branch of linguistics and logic concerned with meaning.” Ah, now that’s the OED I’ve come to depend on to back up my righteous claims to moral superiority. But in all seriousness, saying “you’re just arguing semantics” is like saying “you’re just arguing economics” or “you’re just arguing law.” Words have meaning. Using them incorrectly results in hash brown goes flipped nuclear sauce. When we already have enough trouble communicating even when we use the same word (“Do you like me, or do you, you know, LIKE like me?”), we’ve got to start using the right word at the right time. It won’t save the world, but it will change a small part of it. At least, I believe it will.

Famous Literature as Haiku

Posted: August 24, 2012 | Author: | Filed under: Culture, Humor | Tags: , , , , , , , | 2 Comments

The Illiad, by Homer

Damn, Helen is fine.

Whoops, started a big ass war.

Look, a giant horse.

 

The Odyssey, by Homer

Finished fighting war.

Got held up on the ride home.

House guests are a bitch.

 

The Inferno, by Dante Alighieri

Virgil leads the way,

Beatrice sent to guide me.

Can’t wait for next two.

 

Doctor Faustus, by Christopher Marlow

Summon a devil

I learn magic, lose my soul

Didn’t think that through

 

Hamlet, by William Shakespeare

Dad killed by uncle

A show to unveil the truth

Caught in the mousetrap

 

The Cthulhu Mythos, by H.P. Lovecraft

Inherit old books.

Nightmares full of tentacles.

Hastur Hastur Hast-

 

Death of a Salesman, by Arthur Miller

Meet Willy Loman.

He’s liked, but he’s not well liked.

This will not end well.

 

Waiting for Godot, by Samuel Beckett

Nothing must be done.

Wait is interminable.

End of line: no show.

 

Finnegan’s Wake, by James Joyce

Book rich with meaning.

Complex, deep, yet still has puns.

Bitter old author.

 

Atlas Shrugged, by Ayn Rand

Too many moochers.

Let the country fall apart.

Get a job, hippie.

 

 

 

Anarchy X: The Sixth Amendment

Posted: August 22, 2012 | Author: | Filed under: Anarchy X, Politics | Tags: , , , , , , , , , , , , , | Leave a comment

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

I’m gonna skip right over the numerous ways both the Bush and Obama administration have violated this one since 9/11, since that horse has already been beaten into the ground by roughly everybody (although I do find it interesting that the noise level about it seems to have dropped off since roughly January 20, 2009). The fact is there are still serious issues in our country that have come about due to policy decisions that are tangential to this amendment, some of which are only obvious after the fact due to the law of unintended consequences.

First we have the issue of a speedy trial. This is by definition a slippery one, since what constitutes a “speedy” trial is a qualitative measure, not a quantitative one. Is a week to prepare a defense long enough? How about five years? How long is too long? Either way you have issues, but it doesn’t much matter, because the justice system is getting more and more crowded each day. A lot of this can be attributed to the growth in nonviolent offenders. Much of this can be attributed to the War on Drugs (yes, I’m back on that old tune), but there is also the criminalization of other activity to consider as well.

As The Illustrated Guide to Criminal Law so adeptly shows, there has been a large increase over time in the number and scope of laws that do not require mens rea, or an accompanying mental element to match the actual act of committing a crime. I can’t go into the details of overcriminalization nearly as well as The Illustrated Guide does, so I highly recommend visiting that link; it’s highly informative, very entertaining, and a little scary. It covers both regulatory agencies that pass regulations that include criminal as well as civil penalties for violations, as well as my personal favorite, politicians who legislate personal behavior (speaking of which, can someone in NYC run to 7-11 and grab me a Big Gulp, a doughnut, and a pack of smokes?)

The upshot of all of this is that we end up with a criminal justice system that is bogged down with defendants, many of whom can’t afford an attorney. Let’s face it, if you could afford an attorney, chances are pretty good you wouldn’t have gotten caught in the first place, because you would have had someone else doing the dirty work for you (it takes a lot to bring down a Bernie Madoff, not so much to bring down a Joe Shmoe).  This brings us to the Public Defender’s office. Now before you think I’m about to tear into yet another government agency just trying to do their job, I’m not. I actually have a lot of respect for these people. The don’t get paid much, they have huge case loads, and they work ridiculous hours, usually trying to defend people who for the most part don’t stand a chance. That’s not to say most of their clients are guilty, but you would have a hard time convincing me that more money doesn’t buy better expert testimony, better access to research tools, more paralegals to work your case, and so on. The fact is Justice may be blind, but that doesn’t mean she doesn’t have a palm just waiting to be greased.

So what’s an attorney to do? With a huge case load, a small chance of winning in most cases, and huge mandatory sentences having been imposed by ill-considered legislation in the past, there’s only one out: focus on the ones you can save and get the best deal you can for everyone else. That’s why plea bargains have become so popular. There are just a few problems with that.

Number one, they only work if you have something to trade. Remember that regulatory criminalization I mentioned earlier? Unless there’s someone higher up the food chain you can point a finger at (Bernie Madoff), you’re the guy stuck holding the bag. Or if you just happened to be picking up a buddy and had no idea he was holding. Either way, you’re outta luck.

Number two, plea bargains are a poor substitute for justice. With those previously mentioned harsh sentences, all the DA has to do is get an indictment for a particularly nasty crime (like say intent to distribute, even if you had no such intent), and you’re facing twenty years. Suddenly a plea bargain for a year in jail sounds like a sweet deal indeed, even if you think you have a fair chance of beating the case, just because the cost of losing is so high. That’s a real-life application of game theory, one of the most famous examples of which is (ironically) the Prisoner’s Dilemma.

Third, and maybe this is just me, it smacks of a witch hunt. Whether it’s Salem 1692 or Washington D.C. 1954, our country doesn’t have a very good track record with this sort of thing. Turning people against each other in order to avoid further punishment may be a time-honored tactic, and it has proven to be efficacious, but it is not without its dangers. It should be used sparingly, as a scalpel and not a bludgeon.

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