Far be it from me to sit in judgement on the Supreme Court, but then playing armchair judge is a pastime for most of America. And the case of American Legion v. American Humanist Association practically begs for review (pardon the pun), particularly with so many individual opinions being written in spite of the 7-2 ruling (to be honest I wasn’t aware the Court could even issue anything other than a 5-4 ruling anymore). In this case I think the Court got it exactly wrong largely based on those express opinions as reported in the Washington Post, which I will be referencing throughout this piece, so feel free to call me out if there is some nuance of legal thought I am overlooking by not reading the entirety of their opinions. However I do believe the underlying premise is sound.
The initial argument is basically that a cross on public land favors a specific religious point of view, which is unconstitutional. The mental gymnastics that the justices who voted to allow the cross to stay had to go through are particularly astounding, and the fact that so many of them took so many paths to get there shows that there really isn’t any clear logic or reasoning to support it, unlike the opposition argument. Note that this in itself does not indicate they are wrong; there can be several good arguments in favor of something, and reasonable people can disagree about which one is the best. However the fact is that none of the arguments put forward by the justices are good or even sufficient arguments, particularly as a matter of practical law when considering that they will be used as precedent in other cases.
What sort of cases? Consider for a moment the issue of Civil War memorials. While many of these memorials may not have a religious component, some may, and all of them are subject to First Amendment challenges (either by those who want to tear them down or those who want to keep them up). Let’s consider the justices opinions in terms of these memorials:
Justice Alito, from the main opinion (WP):
“For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”
Alito was joined in deciding that the cross may remain by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Stephen G. Breyer, Elena Kagan, Neil M. Gorsuch and Brett M. Kavanaugh.
Take out “the Cross” and replace it with “the monument” and this passage would apply equally well to every Civil War memorial in the country. I know from personal experience it would apply to the entirety of Monument Avenue in Richmond, VA.
Justice Gorsuch, according to the Washington Post, “would have dismissed the case because he believes the “offended observer” has no legal standing to sue.” So if you’re offended by Civil War memorials… tough titty.
“Breyer said he was persuaded by the specifics of the case: that crosses are specifically linked to World War I sacrifice and that the cross had stood for 94 years without controversy.” (WP) Oh, good. Because the Civil War happened before WWI, and many of those monuments stood even longer than that without controversy. Because, y’know, a lack of controversy in the past totally trumps any present controversy. Or future controversy. Just ask Dred Scott.
To be fair, a couple of justices did give me hope of nuance, even if I didn’t love the way they decided. “Kagan praised Alito’s ruling, but said she refused to join it in full “out of perhaps an excess of caution.” “Although I too look to history for guidance, I prefer at least for now to do so case-by-case, rather than to sign on to any broader statements about history’s role in Establishment Clause analysis,” she wrote. Kavanaugh said that the decision allows the cross to remain on public land but does not require it. Maryland officials could make other arrangements, he said, such as transferring the land to a private group.” (WP) From reading these comments, I’m almost persuaded to believe they might be thinking about the same sort of issues I am. Of course I might be flattering myself (wouldn’t be the first time), but it is nice to see a bit of judicial restraint even in the face of a poorly decided issue.
I understand that reasoning by analogy is flawed, but I am only using an analogy to highlight my point, not to establish it. And the point is this: decisions coming out of the Supreme Court, particularly ones that have a sizable majority such as this one, set a strong precedent for the entire country. I am a fan of stare decisis and history as much as the next Court watcher, but even more I am a fan of an awareness of the future and what it might hold. While nobody can predict that with even a reasonable modicum of accuracy, it’s not too hard to draw reasonable conclusions from the present, and a bit of restraint in current decisions could yield significant room to maneuver in future cases.
In case you’ve been living under a rock, states such as Mississippi, Georgia, Alabama and others have passes highly restrictive abortion laws, with Alabama passing an outright ban except in cases where the mother’s health is threatened. I’ve seen a few arguments being put forward against these bans, and I’d like to take a moment to offer my own (admittedly biased) opinion on them.
The first I’ve seen, and what I consider the weakest by far, is that these laws are being passed by men and therefore are somehow illegitimate. This is a variation on the canard that men are not in any way entitled to have an opinion on abortion. One could as easily suggest that women are not entitled to an opinion on prostate cancer. If we applied this legislative logic uniformly and consistently, only veterans would vote on bills affecting the armed forces or veterans, only minority legislators would vote on affirmative action legislation, and only legislators who have endured mental illness of some kind would vote on legislation addressing mental illness.
More to the point in this specific case, regardless of their gender, these are the elected representatives for their respective states engaging in the established legislative process for their states. That does not make the legislation they create ethical, moral, or even constitutional, but neither do their respective genders invalidate it. It is also worth noting that, at least in the case of the Alabama law, it was signed into law by Gov. Kay Ivey. While that doesn’t completely or even mostly offset the gender imbalance, it does show that this isn’t completely “a war of men on women”. In fact, according to Vox it’s not about men vs. women as much as it’s an ideological split.
The next argument, and still weak for my taste, is that some of these laws don’t include an exception for cases of rape or incest. One of the few things I can actually respect about the politicians who pushed through the highly restrictive law in Alabama is that at least they are morally consistent. They believe, wholeheartedly, that life begins at conception. Full stop. Not “life begins at conception unless of course it was a case of rape or incest in which case things get kind of squicky so we have to kind of just look the other way”. If you’re going to impugn someone’s bodily autonomy (don’t worry, we’ll get to that) there should be no half-measures just because the originating cause is distasteful. Either you’re all in or you don’t have the courage of your convictions.
So let’s get to the only argument that I believe is truly sufficient and relevant: anti-abortion laws are a violation of a woman’s bodily autonomy. The question of whether life begins at conception is, quite simply, irrelevant. That may sound harsh or even disgusting and immoral to you, but let’s take a look at a few tangential issues of bodily autonomy and see how they might shed some light on the matter.
First consider the matter of blood and tissue donation. Compulsory donation of blood or tissue of any kind is not only considered illegal, it is immoral and unconstitutional. Even if a criminal were to stand in the middle of 5th Avenue and shoot somebody (just to pick a random example) and, by complete coincidence, turned out to be a perfect blood type match for their victim, they could not be compelled to donate blood. No matter that it would do them no long-term harm, no matter that it would be a form of restitution for their crime. A criminal has bodily autonomy in this country.
Second consider organ donation. Whether from a living donor or a deceased donor, you have to have positive consent before you can take an organ for transplant. Not “lack of opting out of the system”, someone has to actively opt-in while they are alive. Consider the implications of that. If there is literally only one person in 10,000 who can provide a life-saving organ to someone who has literally been waiting for years on the transplant list, if they did not register as an organ donor or put in their will that they wanted to donate their organs after their death then too bad, so sad. A corpse has bodily autonomy in this country.
How about the legal ramifications? The Fourth Amendment prohibits unreasonable search and seizure, which the Supreme Court has extended to the collection of DNA in the absence of a warrant or arrest (a decision I have issues with, but that’s for another time). While these protections could (and should) be stronger, they still proscribe the government from taking DNA from anyone on a whim, including (just as a random example) non-citizens coming in at the border. In the absence of an arrest or a warrant compelling the production of DNA, even non-citizens have bodily autonomy.
So, here’s my proposition: the What’s Good for the Goose Act. A gender-neutral application of bodily autonomy in the law. Either everyone gets it or nobody gets it. Do away with these and all other forms of bodily autonomy under the law – or enshrine the idea of bodily autonomy in the law and do away with the idea that you can legislate another person’s body. Simple, fair, and easy.
Personally, I’m looking forward to getting that new kidney. And I say we go for the politicians first.
Note: While all of the ideas herein expressed are my own, I drew inspiration from questions, answers, and discussion on Quora.com. I highly recommend the site (and no, I’m not getting paid to say that).
This post is a long overdue promise to The Frazzled Slacker outlining my views on gay marriage. All opinions are my own. No legal advice is intended or implied. Not taking my advice is a good idea in any case.
So at long last the Supreme Court is addressing the issue of gay marriage. I for one am thrilled, since it’s about time we get some clarity and put this issue to rest once and for all, as we have with other contention issues before.
All joking aside, I do think it’s time the high court stepped in. We have a plurality of answers on this question in different jurisdictions, and it is a matter that has implications both nationally and across state lines, which is a proper role for the Supreme Court. More so, it is a civil rights question, in that the heart of the matter is to what extent the State can and should regulate the institution of marriage.
And that right there is the first point I believe needs to be made in this debate, and one that seems to be lost in much of the heated rhetoric. Before anyone makes demands about what should and should not happen, we need to draw the lines very clearly: this is, and should remain, strictly about the role of the State in the institution of marriage. No person or group’s personal beliefs should impact, or be impacted by, these cases. If a particular religious organization wants to refuse to marry a gay couple, they should maintain the right to do so; it is theirs to decide, in the same way they can decide not to marry a straight couple on any grounds (IMNSHO).
With that out of the way, we are led to the question of “what exactly is the role of the State in the institution of marriage?” As I understand it, the State has traditionally had a handful of roles, and in recent history (the last hundred years or so) has taken on a few additional roles as well. Once we define those roles, it should be relatively easy to tease out the question as to whether or not (a) homosexuals share those rights with heterosexuals, (b) whether heterosexuals would suffer any significant harm in sharing those rights with homosexuals, and (c) whether society writ large would suffer any harm from allowing homosexuals to exercise those rights.
The traditional roles, as I understand them, are to encourage child rearing, social stability, and guide the process of inheritance. End of line. The additional roles that the government has taken on have been to grant certain rights such as tax benefits, Social Security benefits, and various and sundry other spousal benefits such as visitation rights, next of kin in medical matters, etc. to married couples.
To the first question: do homosexuals even have these rights? According to the state of Kansas, a lesbian can be a single parent, so by logical extension, a homosexual can have parental rights. While Kansas has in this case proven they prefer not to encourage child rearing, one would think it would be desirable to support couples that prefer to rear children together rather than attempt to sue someone in an iffy court case, and that’s of course assuming there was no proper waiver and doctor present to even allow a lawsuit to move forward.
As for social stability, setting aside the obvious counter-argument that rhymes with “fifty percent bivorce rate” there is the simpler counter-argument: given a choice between encouraging couples to be monogamous and stay together rather than NOT encouraging them to do so, when your purported goal is a more stable society, why wouldn’t you?
Finally, the question of inheritance is, again, simple on the face of it. Any individual has the right to assign their estate as they see fit in a will; simply assuming that next of kin would be the logical beneficiaries in the absence of such is a grace and mercy to a bereaved family, as well as relieving an overburdened court system. Insisting that one segment of the population does not have that right and must go through an onerous process by virtue of who they love is demeaning and unbefitting of a civilized society.
Most spousal benefits are in the same category as inheritance; they can, with time, money and effort be resolved through other legal means (power of attorney, etc.). It is simply demeaning to insist that one segment of the population is required to climb an extra hurdle because they have a consensual relationship between two adults that others do not approve of (c.f. miscegenation). The only exceptions are such things as Social Security and tax benefits, so I shall address them as such: are homosexuals exempt from paying Social Security and other taxes in ways I am not aware of, or do they receive other special benefits to compensate them for their inability to access these benefits?
Moving on to the question of whether heterosexuals would be significantly harmed by sharing these rights with heterosexuals. That’s a bit of a tricky one, because there are two important words there: significant and harm. Would I be “harmed” if someone else were paying lower taxes? Arguably, yes. Would it be significant? If they did so in large enough numbers, maybe. Does that mean I should be able to deny them their rights? I do not see how. True harm is if I were to lose something I were otherwise entitled to, and I am not entitled to having first claim on someone else’s life, their labor, or their choices, so long as those choices do not interfere directly with my ability to make choices. And seriously, I don’t see how homosexuals choosing to marry impacts any heterosexual’s choices, unless they have secrets they aren’t sharing (in which case the statement is still valid).
Would society suffer any significant harm in allowing homosexuals to exercise their rights? Again, it depends on how you define society and how you define harm. Considering the potential good outlined above, and the societal purposes that marriage serves in the first place, I see no evidence that expanding the civil tradition of marriage could bring. There will be those who will not be able to accept this gracefully, and they may even commit violent acts in response. This would not be a direct result of allowing homosexuals to exercise their rights; this would be a result of people who are unable to accept change attempting to use violence and fear to coerce others when all else fails. There is a word for that: terrorism. It should be dealt with as such.
In the final analysis, there is no good reason to continue to deny a significant portion of our population the same rights that the majority have enjoyed for so long. The Supreme Court should step in and, as it has a few times in its long history, strike down the laws of oppression and let liberty carry the day.
In case you haven’t heard, there’s another guy trying to dodge child support payments, and the state of Kansas is going after him with everything they’ve got. Of course, this one’s a little different. Turns out there’s three parents involved, and according to him, he’s not one of them. Unfortunately for him and the other two parents, Kansas doesn’t recognize gay marriage, so the government has decided he’s on the hook.
Here’s the story: a lesbian couple advertised for a sperm donor, a man answered the ad, and nine months later a baby was born (I’ll assume you can fill in the details). There was a contract between the three of them stipulating he had no parental rights or responsibilities. However, there was also no doctor involved. Later the couple in question split up, and the custodial parent (according to Kansas, the only parent) applied for state benefits. In accordance with state law, the state of Kansas went after the non-custodial parent for child support, including back payments. But wait, were you paying attention earlier? Kansas doesn’t recognize same-sex unions in any way, so there is no non-custodial parent, right?
According to Kansas law, because there was no doctor involved, the sperm donor wasn’t legally a sperm donor, he was the daddy. Never mind he had a contract stating otherwise that all three were a party to.
To add to the fun of all this, the government of Kansas is sending mixed messages. According to an interview on NPR, “[i]n 2007, we had a case involved where a guy who had been a sperm donor donated sperm for a woman to become pregnant and then decided afterwards that he wanted to be considered the father, wanted to have parental rights and responsibilities. That case went clear to the Kansas Supreme Court and they said that he doesn’t get the parental rights and responsibilities.” What’s the difference? Well, there’s one I know for sure, and one I can guess. The one I know for sure is there was a doctor involved in the 2007 case. I’m also guessing the woman wasn’t in a lesbian relationship.
So what we have is the State of Kansas making two different arguments: you don’t get to be the father of a child unless we say you are the father of the child, and the only time we will say you are the father of the child is when it benefits us to say you are. Clearly that would be when there’s money on the line, but there’s also an insidious whiff of anti-homosexual backdoor lawmaking going on here. After all, if we can scare enough people into not helping homosexuals have children, we can make sure no homosexuals have children, right?
There’s three problems I see here. The first is that this is a clear case of violation of private contract. This isn’t one party to the contract saying the contract is unfair or invalid, nor is it a case of the state having a serious vested interest in stepping in to prevent one person from being taken advantage of. Three adults entered into a mutual, legal contract, and the state simply didn’t like the contract they entered. The fact there is a third adult party willing to play the role of non-custodial parent if she were legally allowed to only strengthens that point.
The second issue is that this is clearly a case of inconsistent law enforcement. If the state does not want sperm donors to have parental rights once they have signed a contract as such, then they need to enforce that consistently. The presence of a doctor does not change anything (although if they wanted to require a lawyer, notary, or other witness that is consistent with legal proceeding that might be different). Either the case in 2007 was wrong, or this one is. While I have my preference as to which is the correct answer, at least a consistent ruling makes for sound governance. Doing otherwise is simply making up the rules as they go along, picking and choosing whatever is most convenient at the moment, and the word for that is “dictatorship”.
Finally, I have no idea who they think they’re helping. This doesn’t make either of the mothers better off; the sperm donor is certainly no better off; the child in this case is no better off; and the people of the state of Kansas are made to look like backward fools because of their politicians. At this point the best possible outcome would be an outright dismissal of the case with a strong admonishment from the bench for the foolish notion that the state can simply pick which contracts it will or will not enforce based on its own twisted ideas of what’s right or, worse, its own convenience.
In the wake of the awful shootings in Connecticut and Oregon, the debate is raging once again over the appropriateness of allowing common citizens to own and carry firearms. Both sides are falling back on the same tired arguments, none of which are likely to sway anyone, nor do I think they are meant to, except in the most deluded cases of those who truly believe that their cause is so righteous that only the willfully blind could ignore it, and all it would take is the proper spin on a terrible enough tragedy to get them to see.
The fact is that both sides of the debate are using each of these atrocities, and every one that precedes them, and each one that follows, as yet another piece of ammunition in their ongoing war (and yes, I chose those words quite deliberately). They have abandoned reason and logic to fall back on fallacies and emotion. These are emotional situations, and rightly so, but the discussion at hand is not. It is one of how we order a just society, and letting that be ruled by emotion always will lead to short-sighted decision making and partisan sniping at best; at worst, I do not even want to contemplate what it could lead to, for fear of being accused of making an argument ad hitlerum myself.
First, allow me to address the “right to bear arms” crowd. As an acknowledged supporter of the Second Amendment myself, I hope that you will not see it as an attack when I say: STFU. Please. Just for five minutes. If I hear one more person say how this was a tragedy about people and not guns, or some other such bullshit, I am going to scream. This was a tragedy involving guns, just like every other school shooting, mall shooting, celebrity shooting, and every other shooting you have to get out in front of in an attempt to defend the vast majority of responsible gun owners. Notice how I tossed you a bone at the end there? There’s a reason for that. I get it. I agree. I’ll even repeat it: the vast majority of gun owners are responsible, law-abiding people. That still doesn’t do a damn thing to bring back a single one of the lost and wasted lives, or repair the shattered lives of those who are left behind. Repeat it like a mantra all you want. It. Does. Not. Change. A. Thing.
Here is the reality we have to live with: if we allow people to own guns, then the possibility of something like this happening again approaches a near certainty. That much has become obvious, and we need to accept that and stop running from it. We, as a society, have to be aware of it, and while we can do everything in our power to minimize it, it is almost impossible to prevent someone who is determined enough from getting their hands on a gun and killing people. That is a fact, and it is unavoidable.
Now, having put all that on the floor, let me speak to the gun control advocates. If I hear one more person make un unfalsifiable claim about how those kids would still be alive if we had better gun control, I will be violently ill. Aside from taking shameless advantage of a terrible situation, you’re also full of shit. Here’s an example of someone using a knife to attack school kids. Now think: do you know anyone who knows how to make dynamite? If the answer is no, come on by and I’ll introduce you to some rednecks I know. It’s not very difficult, and if you can walk into a school with an assault rifle, you can walk in with several sticks of dynamite hidden about your person. My point is not how easy it is to hurt people, my point is that a determined person will find a way, and simply waving a hand and screaming “GUN CONTROL!!!!!” doesn’t change that.
Here is the reality we have to live with: every day in this country, citizens protect themselves, their families (including young children), and their neighbors against violent offenders with lawfully purchased and licensed firearms. Handguns, shotguns, and yes, even “assault rifles”. If you take them away, you leave people vulnerable. Don’t try to claim the police will fill the gap, because the Supreme Court has made it very clear that the police have no duty whatsoever to prevent crime, only to prosecute it (and in some neighborhoods it seems, not even that). We, as a society, have to be aware of this fact, and if we take away people’s right to defend themselves, we are leaving them vulnerable. While we can do everything in our power to minimize it, we have already proven we are not willing to invest the resources even in the best of our communities to protect people against all crimes (even if we could, and we cannot); in our worst neighborhoods we would be leaving them utterly at the whims of the criminals. That is a fact, and it is unavoidable.
These, then, are the costs as I see them. I am not trying to stifle debate, I am trying to start it. Real debate, not simple sloganeering and screaming of worn-out catchphrases from both sides. It is time that everyone admit that there is no good answer, there is no simple, cost-free solution where we all live happily ever after. Maybe then we can decide which costs we are willing to shoulder, admit that we have to pay them, and move on.
And one more thing. I think it’s time we call out the real villains in all of this, and for that I’m turning over the floor to My Not So Humble Mother:
When did a discussion over the necessity of gun control become news? The shooting at the school was a tragedy, no doubt; but using the rapt attention of folks who live off these tragedies as an audience for gun control is not reporting. It’s the worst sort of soapbox scare tactics I’ve ever seen!
I couldn’t have put it better myself. (Now you know where I get it from. Well, half of it at any rate.)
Here is the reality we have to live with: So long as “if it bleeds, it leads” is the mantra that drives “news” reporting, then the message that is being sent is “if you want to be famous, kill people”. So long as editorializing (on both sides of the aisle) replaces honest discussion of the issues, we will never have a meaningful debate, nor will we ever come to a place where we can have any sort of comity in our neighborhoods, in our malls, or in our schools. That is a fact, and it is unavoidable.
“Thou shalt not covet thy neighbor’s house, thou shalt not covet thy neighbor’s wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neighbor’s.”
Friends, Romans, countrymen, lend me your ears; I come not to praise this Commandment, but to bury it. For all the good that it may have done in its social graces, so has it been undone in the policy sphere.
Let me begin by saying that I am a child of the Eighties. It was a decade known both affectionately and without irony as both “The Decade of Greed” and “The Decade of Excess”. If the Sixties were a party and the Seventies were a hangover, the Eighties were the day everyone went back to work, ready to get things done. It’s like the entire country decided one day that free love might be great, but everything else worthwhile costs money, and they were going to do whatever it took to get as much of it as they could.
You want to talk about coveting? Oh, they had coveting down. The official motto of the decade was “he who dies with the most toys wins”. It wasn’t enough to keep up with the Joneses. You had to beat them into the ground and then rub their noses in it. Everything had to be bigger and louder, faster and cooler, newer and just plain BETTER. Too much was never enough, and style always trumped substance. If you don’t believe me, let me point out that this was the decade that glam rock reigned supreme, and even Poison packed stadiums (sorry, Bret Michaels, you know I’m still a fan).
Is it any wonder my generation turned out to be a bunch of slackers? We had seen what commercialism and the desire for what the other guy has (y’know, coveting) had wrought, and we wanted none of it. Well, until we had kids of our own and needed to get a mortgage, but that’s a different story. The point is, I see the social value in this Commandment, truly I do. But I fear the policy implications far more.
Consider for a moment: what exactly is coveting? Is it an action? When you covet a man’s house, do you go inside of it? When you covet a woman’s ox, do you take it from her? When you covet your neighbor’s wife, do you bash him over the head and drag her off? Or even attempt to woo her away? The truth is, coveting something may drive you to do any of these things, but it is not the same as actually doing them. In the same way I might think about giving to charity, but go buy a burrito with the money instead. Do I get good karma for the thought, even though I don’t carry out the deed?
When crafting laws, it is important to make a distinction between action and motive. Motive is an element of a crime, but it is not a crime in and of itself (which is good for me, because as Prince wrote, “if a man is guilty for what goes on in his mind, give me the electric chair for all my future crimes.”) But the truth of the matter is that we do have crimes in this country that are based solely on what goes on in a person’s mind. They are called “hate crimes”.
Now I know there are those of you who are thinking “what does that have to do with coveting?” and that’s a fair question. To me they are one and the same. The motivation to commit an act is an element of thought, something that exists solely in the mind of the individual. Hatred, while it is something that we as a society should stand against, is no more or less repugnant that wanting something just because someone else has it. And just like covetousness, hatred in itself should not be a crime, nor should it be an additional element that can exacerbate a sentence.
Consider: if I were to propose a law against covetousness, such that if someone were deemed to have committed a crime out of covetousness, would that be acceptable? Would that be something that should warrant a harsher sentence than committing the same crime for another reason? If I stole your jacket “because I wanted it” rather than “because I was cold”, you still don’t have your jacket. By the same token, if a person has been assaulted, to me it does not matter why; the assailant should be punished.
When we start defining motivation itself as a crime, we are delving into thoughtcrime. For any literate person that should be enough to give them pause; for any moral person that should be enough to give them concern; for any just person, that should be enough to give them fear. Unfortunately, for politicians it doesn’t even seem to lose them a single moment of sleep.
UPDATE (12/16/12): I recently discovered The Illustrated Guide to Criminal Law, which I highly recommend to everyone. Of particular relevance to this post is “Part 7: The Axes of Evil”, which discusses culpability, responsibility, and depravity in relation to crime. In the issue of hate crimes, I would consider those a matter of depravity, which is an element of the crime to be considered when determining the total punishment to be served, but again (as I stated above) not something to be charged as a separate crime. In the same way that we would consider any other element of a person’s mental state, of course we should consider their total relationship to the victim, and that includes any specific prejudice they may have IF it was a motivating factor.
“Thou shalt not bear false witness against thy neighbour.”
If you had to pick just one Commandment as an example of why the Ten Commandments should be used as a system of law, I would choose this one. I know others would go with the Sixth Commandment, or possibly the Eighth Commandment, but for my money it just doesn’t get any better than this. For every other Commandment I can find some flaw, some reason to say “yes, but…”, yet this one is unique in that I believe it is not only excellent as personal advice but essential for a functional judiciary.
We have in America (and there are in many other countries as well) what is referred to as an adversarial judiciary system, one that relies in large part on people being honest about what they have seen or heard and even what they believe. While there are many critics of such a system (and the U.S. judicial system in particular), it is generally thought to be superior to the inquisitorial alternative. Certainly I believe it is, and regardless of which type of system you use, in either case false testimony would be damaging to the proceedings.
In the broader context of society, I also think that it is worth keeping this Commandment in mind in daily life. I can’t help remembering as I reflect on this one time when I was much younger, and in a fit of jealousy I said some very untrue things about someone else; they cost me a good and close friend, and it is one of only three things I have done that I deeply regret. Words have power, and we forget that at our peril.
But is there an intersection between these two things that perhaps is the step too far? Is there a gray area that we have given over to politicians that is of society but not governance? I would argue that there is, and more to the point I would argue that it is an area that is not only expanding but being abused both more frequently and more frivolously as time marches on. I am speaking in particular of Congressional hearings.
The first thing that comes to mind when I think of any sort of Congressional hearings is the House Un-American Activities Committee. Not only is the idea of grilling people about their personal lives and politics repugnant to me, it seems antithetical to the very idea of what America stands for. More to the point of the Ninth Commandment, like the Salem Witch Trials that Arthur Miller compares them to in The Crucible, there was a strong compulsion on witnesses to implicate others, even if it meant doing so under false pretenses. Once again, it would seem to be the antithesis of what America and our government should stand for.
Over the decades Congressional hearings have delved into other areas of concern ranging from Watergate to Iran-Contra, and those have been important matters that needed investigation. Did Toyota need investigating by Congress? Arguably, since there was a Federal agency involved, although I think that was more posturing for headlines than any real effective action. But the one that bothers me most is when Congress starts investigating steroid use in athletes.
Aside from basically encouraging perjury (“hey, how would you like the opportunity to destroy your own career? No?”), I don’t see what point there is in Congress even being involved in this. Again, it seems more a matter of either pandering for the cameras or, even more ominously, honestly believing they have a right and a mandate to be involved in every aspect of American life simply because they are… well… politicians. And we put them there.
So yes, I believe very much that you shouldn’t tell lies about other people. It has cost me personally and it costs us as a society. But I also believe we need to think very long and hard about when and how we ask the sorts of questions that might elicit lies from others. There are some things that are properly none of our business, or if they are our business, there are proper forums for handling them. When the cost for telling the truth outweighs the risk for telling the lie, people will lie. And in that case, how much of the burden for that lie falls on the ones who put them in the position of feeling like they needed to lie in the first place?
“Though shalt not steal.”
When making the case for basing legislation (or even an entire criminal or civil code) on the Ten Commandments, this is usually right behind the Sixth Commandment in being cited as to why it would be a good idea. After all, the reasoning goes, who among us could object to a law that says “don’t steal”? Sure , we might quibble a little about the specifics (there’s a big difference between shoplifting and grand theft: auto, for example), but the basic concept is sound.
And yet… what is theft, exactly?
I believe the Merriam-Webster definition is particularly instructive in this regard: “1. a. the act of stealing; specifically : the felonious taking and removing of personal property with intent to deprive the rightful owner of it; b. an unlawful taking; 2 obsolete : something stolen”. Isn’t it interesting that both current definitions involving personal property include words like ” felonious” and “unlawful”, and it’s an obsolete use to say something as direct and simple as “something stolen”. It becomes even more interesting when you follow that particular line of thought over to the definition of “steal”. I won’t pull every part of the definition I found intriguing and useful, but here’s the very first one: “to take the property of another wrongfully and especially as a habitual or regular practice”.
So where am I going with all of this? It’s an old argument, and one that a lot of folks have written off before as crazy, but pause for a moment and think about it. If someone came to your door and demanded money, and if you didn’t give it to them they would come back with guns and take it by force, would you call that theft? And yet that’s what taxation is, in a nutshell. There may be a few more steps in between the nice ask and the men with guns (they’re called “police”, by the way), but the end result is the same.
So what justifications do people offer for why this isn’t, in fact, theft? First there’s the suggestion that “you owe it to the community”. An interesting thought, and one that I’ve never quite understood. If I offer something for use by “the community” and then demand payment post-facto, that is by definition illegal and immoral; either I state a charge upfront or there is no charge. And yet the oft-cited reasons I “owe it to the community” are for the roads, police, fire department, etc. which I have either never used, never wanted, or never been billed directly for so that I can determine whether I am interested in the service at that cost. As for the schools I attended growing up, what about the taxes my parents paid? And what about the sales taxes I paid on goods I purchased? And again, why was I never given a choice as to whether I was interested in those services in the first place?
But of course, that is often the second argument I hear as to why taxation is not theft; “you had a chance to vote”. I’ve already expressed my opinion on voting, but in this specialized case I’ll narrow it further: this is blaming the victim. If I voted and didn’t get the guy I wanted, I’m being robbed for policies I don’t agree with, except for the ones I do. How is that fair? If I voted and I did get the guy I wanted, I’m being robbed for policies I do agree with, except for the ones I don’t. How is that fair? If I didn’t vote at all, I’m just getting robbed, but I get lectured about how it’s my own fault for not voting, and how is that fair?
Speaking of blaming the victim, there’s another argument that ties into both of the ones above: “You choose to live here.” This is occasionally accompanied by “if you don’t like it here, leave.” This is somewhat akin to saying to someone born into the ghetto that they chose to be born there, and therefore they have nobody but themselves to blame for being there. Show me a country on Earth where I won’t get robbed just for trying to live there, and I might consider living there. As I have yet to find that option, I take the best that’s on the table, but that doesn’t mean I can’t (and won’t) try to make it better, and noting the flaws is the first step.
Having said all this, does this mean I am completely against taxation for all reasons, at all times? No. In all things there must be compromise and balance if we are to live together as a society, and necessary evil is sometimes one of those things. For the common defense, for police and courts and fire departments, the things that we all need and benefit from but nobody wants to pay for until after we need them and it is too late to pay for them, taxation is a necessary evil. But being aware that it is theft, that we are stealing from ourselves and our friends and our neighbors every time we tax, will hopefully keep in check the desire to “do more good”. There is very little good that can be done when the root lies in breaking a Commandment, even though we all know where that paved road leads.
There are two approaches we are offered from antiquity, one of which we are all familiar with and one that is less familiar although not completely unknown. The more common is the “Golden Rule”: Do unto others as you would have them do unto you. The less well known but still famous is the “Silver Rule”: Do not do unto others as you would not have them do unto you. I believe it is instructive to examine both of these approaches to see how they differ, and how they can guide us in life and in law.
The Golden Rule is what I think of as affirmative guidance. It tells us what we should do. It doesn’t restrict or circumscribe our actions away from things so much as guide us toward things. While this seems good on the surface, I’m always leery of things that look good (too many “candy from strangers” commercials as a kid, I guess). The first caution I would bring to the table is that maybe what I like isn’t what someone else likes. Just because I want you to do it to me, how do I know that’s what you want done to you? I’m not talking anything sick or extreme here, but there’s a lot of human activity that falls in the grey areas between “obviously wrong” and “of course I’d be okay with that”. If you don’t believe me, swing on by house next week. It’s almost time for my annual mohawk, and my wife is going to be out of town; I’ll do your hair first, then you can do mine. It’s the Golden Rule, after all.
Standing in opposition to this is the admonition to not do unto others. While this doesn’t lift nearly as much weight from a moralistic perspective, it does just as much work from another perspective: that of circumscribing negative behavior. Again, if there is objectionable behavior someone would actively enjoy, there’s nothing in this rule that would stop them from doing it to someone else, but then the Golden Rule practically requires them to go out and do it. At least this rule just amounts to “keep your hands to yourself”.
That leads into the other aspect of where I think these two subtly different moral guidelines have major differences in their implications. Many people, some among them being either moralists or lawmakers (and even moralistic lawmakers) like to cite the Golden Rule when debating the merits of different laws. Why? Is there something inherent to the Golden Rule that makes it a superior basis for a legal system? Citing something like Hammurabi’s Code I could at least understand (not that I think that’s a good source mind you), or the Magna Carta. But instead they refer to “the Golden Rule”. Aside from its qualities as a common point of cultural reference, what else does it offer in terms of jurisprudence?
Consider my point from above: the Golden Rule is affirmative. It does not circumscribe behavior as much as compel it. All laws are compulsory by nature, in that they compel us to act a certain way or refrain from acting in a certain way for fear of punishment (if we would have behaved properly without the law then we either don’t need it or can safely ignore it). So laws that are made with the Golden Rule in mind are looking to compel people to take a good action, to “do unto others”. They are not designed from the perspective of refraining from negative action, that of “do not do unto others”.
The essential question then is, what sort of government do we want to live under? What sort of system do we want to have? Do we want a system that determines in advance what actions we should take, and uses the threat of force to compel us to take actions for the benefit of others? I’m pretty sure that’s been tried, and it never seems to work out very well. The alternative is a system that writes laws carefully, narrowly tailored to circumscribe intolerable behavior but otherwise leave open the grey area of noxious but tolerable behavior. It’s perhaps not as pretty in theory, but works much better for a diverse plurality than reaching for fool’s gold.
“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.