According to the filings in Blake J Robbins v Lower Merion School District (PA) et al, the laptops issued to high-school students in the well-heeled Philly suburb have webcams that can be covertly activated by the schools' administrators, who have used this facility to spy on students and even their families. The issue came to light when the Robbins's child was disciplined for "improper behavior in his home" and the Vice Principal used a photo taken by the webcam as evidence. The suit is a class action, brought on behalf of all students issued with these machines.
If true, these allegations are about as creepy as they come. I don't know about you, but I often have the laptop in the room while I'm getting dressed, having private discussions with my family, and so on. The idea that a school district would not only spy on its students' clickstreams and emails (bad enough), but also use these machines as AV bugs is purely horrifying.
Wow, just wow. I wish that government officials wouldn't use 1984 as a how-to manual.
By Diana Hsieh @ 8:00 AM
Steve Simpson of the Institute for Justice was kind enough to post his thoughts on the significance of the recent Supreme Court decision on campaign speech in the comments on my post Freedom of Speech, Somewhat Restored. I thought them worth reproducing in a blog post of their own. Here's what he wrote:
Thanks for posting our release, Diana. I thought folks my be interested in a few additional thoughts on why this decision is so significant. No Supreme Court decision is perfect, and this one is far from it from a strict philosophical standpoint. But judging from where we were, it is a very significant step forward. The importance of this decision goes beyond its basic holding, which is that the government cannot prevent corporations from spending money on their own independent speech during elections. Corporations now have the same rights to spend unlimited sums on independent advocacy as individuals do. A corporation is simply a voluntary association of individuals. It has the same "rights" that the individuals do; no more, and no less. The Supreme Court recognized that basic point, which is very important.
But the Court's reasoning was also very good in many respects. Those who have heard Eric Daniels's excellent lecture on the First Amendment know that the Supreme Court has treated the freedom of speech primarily as a means to the end of promoting "democracy" rather than as an inviolable individual right. The history of campaign finance law has been a march toward the logical conclusion of this premise, which is complete government control over political speech. This is the reason that campaign finance jurisprudence is so important--because the consequences of the court's approach are so apparent in this area (and because elections are the path to political power, which is the reason the left cares so much about campaign finance law). (Incidentally, recall what Ayn Rand said about free speech in Censorship: Local & Express--that leftists are willing to leave speech relatively free because they want to control the material realm, while the right is the opposite. In my view, that dynamic is reversed in campaign finance law, both because it involves the regulation of money and because the left recognizes campaigns and elections as the path to political power. But I digress).
The Court unfortunately did not reject this approach, but it did emphasize much more than it ever has before that the First Amendment protects the rights of individuals to speak, to organize, and to think for themselves. The battle on this front is by no means over, but we now have some very good ammunition to use in the future.
The Court's approach was also surprisingly principled and objective. For instance, it recognized that the means of exercising one's freedom of speech (e.g., money, the corporate form) must be protected if the right to free speech is to be protected; it understood that requiring a corporation to speak through a separate legal entity that is separately funded is a denial of the corporation's right to speak as is conditioning the right on compliance with complex regulations (A is A); it rejected as irrelevant the fact that many of the Founders apparently disliked or didn't trust corporations and the fact that the "media" that existed in the founding era consisted of small newspapers and pamplets, rather than gigantic corporations. As Chief Justice Roberts put it in his concurrence, "the First Amendment protects more than the individual on a soapbox and the lonely pamphleteer." (Remember Rockwell's "Four Freedoms" painting, with freedom of expression represented by a humble looking man standing in a town meeting with his hat in his hand? That is the left's view of free speech. Speak as much as you want, as long as it won't affect anything).
In sum, Citizen's United is not just a very good campaign finance decision, it is a very good First Amendment decision (in my view, one of the best ever). It gives us a great deal to use on many fronts, and we will use it all to good effect.
Steve Simpson also wrote an op-ed on the case for Pajamas Media: Protecting the Marketplace of Ideas. It's a good overview and analysis of the case.
Also, Julian Sanchez wrote a biting analysis of the practical implications of the common leftist view that corporations shouldn't have the right to free speech because they're legal fictions rather than real persons. He imagines what would happen if we accepted that view fully:
Having dispensed with the repellent doctrine of corporate personhood, we can happily declare that journalists enjoy full freedom of the press ... as long as they don't plan on using the resources of the New York Times Company or Random House or Comcast, which as mere legal fictions can be barred from using their property to circulate unpatriotic ideas. You're free to practice your religion without interference -- but if it's an unpopular one, well, let's hope you don't expect to send your kids to a religious school or build a church or something, because those tend to involve incorporating. A woman's right to choose is sacrosanct, but since clinics and hospitals are mere corporations with no such protection, she'd better hope she knows a doctor who makes house calls. Fill in your own scenarios, it's easy.
That's a wonderful reductio ad absurdum for precisely the reason identified by Steve Simpson said in his Pajamas Media op-ed:
Corporations are groups of individuals and have the same rights to speak as the individuals who make them up, no more, no less. The fact that state laws affect corporate status cannot be a basis for regulating them, any more than it could be a basis for deciding that married couples, partnerships, or membership organizations are not allowed to speak. Nor can it matter that any group's views may not "correlate" with the views of the public. The First Amendment exists to protect dissent. No one ever wishes to limit speech with which they agree.
After so many years of political disaster, I'm enjoying these few rays of political sunshine.
Josh Wexler, a 30-year-old piano player, said he saw a New Orleans police officer run a stop sign and strike a pedestrian with his car in the French Quarter at 12:45 p.m. Jan. 29.
When the pedestrian raised his hands as if to say, "What are you doing?" the officer rushed out of his vehicle and "angrily" grabbed the startled man, Wexler said. The officer in question, William Torres, reportedly forced the pedestrian to place his hands on the hood of his squad car and reached for his handcuffs as if to arrest him.
Wexler, who was driving behind the police officer, decided to intervene. He got out of his vehicle and told the officer he saw him run the stop sign and hit the pedestrian. Wexler told Torres he had no right to arrest the man.
At this point, Torres reportedly allowed the pedestrian to go free, directed his attention to Wexler and asked, "Do you want a ticket?"
"A ticket for what?" Wexler said. "I didn't do anything."
"It's a simple question. Yes or no. Do you want a ticket?" Torres reportedly responded.
Wexler said he told the officer he had nothing more to say and walked back to his car where he wrote down Torres' name and badge number. Torres followed him.
"You want to write down my name? I'll show you I can write too. Give me your license, insurance, and registration. I know who to harass," Torres reportedly said. Wexler provided Torres with the information but refused to answer further questions.
"If you don't answer my questions, you are going to jail," Torres reportedly threatened.
Eventually, Torres wrote Wexler a ticket for failure to wear a seat belt and left the scene.
A woman who works in the area at the time of the incident verified Wexler's account to CityBusiness but refused to provide her name for fear of police retaliation.
Lovely. How many people will simply bow their heads and move on when this corrupt machinery of state is directed toward silencing "troublesome" folks like you and me? Far too many, I think.
By Diana Hsieh @ 12:01 AM
The homeowner's association in our rural-ish neighborhood is fairly benign. We don't have many restrictions on what we can build on or do with our property, although we do have some dumb provisions in our covenants.
For example, our five-acre properties are limited to three horses each, whereas the county would permit ten horses. That's dumb: three horses can be a major nuisance if not cared for properly, while ten horses can be perfectly fine if managed well. Moreover, the three-horse limit means that an ordinary family with three or more riders might not be able to accommodate their perfectly ordinary number of horses. So the restriction doesn't address the potential nuisance, yet excludes many potential home buyers. Its sole virtue is that it's easily enforceable.
Even more strangely, the covenants place no restrictions on the number of livestock animals, except that they cannot be raised for commercial purposes. So I simply must comply with the county rules, namely:
In the ER/RR zoning districts and in the A-1 and LRR districts parcels 2.3 to 8.9 acres in area, the number of animals is limited to 1 animal per half acre for large animals, such as, cows, horses, mules or llamas, and 4 animals per half acre for smaller animals, i.e., sheep, goats, swine, miniature horses, or alpacas.
Since I have just over five acres, I can have two horses, sixteen pigs, and sixteen sheep. Or forty goats. Or ten cows. Or five cows and twenty goats. I could go on, but you get the idea. Oh and on top of that, I can have up to 30 chickens and 50 rabbits. While I do plan to get another horse and some livestock in the next year, once my new barn is finished, I don't think I'll be anywhere near those limits!
Unfortunately, the homeowner association's approval process for my new barn was quite frustrating and time-consuming. The problem wasn't the members of the board or the architectural committee but rather some perpetually troublesome neighbors who thought they had a right to veto my building plans, regardless of the covenants. My barn was approved in the end, albeit after much delay. Yet the process of hearing and appeasing one particular neighbor's irrational demands made my stomach turn. He has no conception of or concern for property rights -- on principle. So he's working with the county to prevent the development of a neighboring ranch because any such development would would mar a small part part of the mountain view he's enjoyed for 30 years. He had the same approach to my property: he'd been looking at my cruddy wood barn for decades, so he had a right to continue looking at it if he pleased, rather than being subject to the sight of a much nicer steel barn. Even worse, the barn wasn't even really in his field of view, as he's on a tall hill to my southwest, facing west. It was absurd -- and deeply offensive. He was just wanting to assert his authority.
Paul and I plan to stay in our current home for the foreseeable future; it suits our needs quite well. However, if we do ever move, we will be sure to avoid a "covenant-protected community" like the plague, even if that means forgoing some benefits we've enjoyed here -- particularly our well-maintained trails and a beautiful sand riding ring. Those benefits are simply not worth the cost of being in any way subject to petty, power-lusting neighbors.
Advocates of free markets often point to covenants as an alternative to zoning and other land-use laws. They're right -- and people should be free to form and promote such neighborhoods if they wish. However, as many people can attest, covenant-controlled neighborhoods can be magnets for the worst kinds of people. Or rather, a few awful people can exert undue influence -- using the threat of lawsuits and the trouble of moving -- to keep everyone in thrall to their petty whims. That's a solution far, far worse than the problem of messy neighbors.
Well, I began this post with the intent of just providing a bit of introduction for this hysterical exchange between neighbors about Devil Worship And Christmas Lights. I must be more bitter than I realized about the barn approval. In any case, go read those e-mails. I nearly died with laughter.
By Diana Hsieh @ 12:01 AM
George Mason law professor Adam Mossoff recently wrote me about his working paper on "the invention, patenting and commercialization of the sewing machine in the antebellum era." The paper -- "A Stitch in Time: The Rise and Fall of the Sewing Machine Patent Thicket" -- can be freely downloaded from SSRN.
Here's his abstract:
The invention of the sewing machine in the antebellum era was an achievement on par with the latest high-tech or pharmaceutical discovery today. This paper presents the first comprehensive empirical study by a legal scholar of the invention, patenting and commercialization of the sewing machine in the nineteenth century.
In so doing, it challenges many assumptions by courts and scholars today about the alleged efficiency-choking complexities of the modern patent system, revealing that complementary inventions, extensive patent litigation, so-called "patent trolls," patent thickets, and privately formed patent pools have long been features of the American patent system reaching back to the antebellum era. This is particularly significant with respect to patent thickets, as there is a vigorous debate on whether patent thickets exist. The sewing machine patent thicket -- called the "Sewing Machine War" -- confirms that patent thickets are not just a theoretical construct. But the Sewing Machine War also reveals how patent-owners have strong incentives to resolve patent thickets.
In the case of the Sewing Machine War, these incentives prompted the formation of the first patent pool in American history -- the Sewing Machine Combination. Even more important, this innovative contractual solution to the first patent thicket occurred at a time when patent-owners received strong legal protection of their property rights (injunctions), including even injunctions issued on behalf of Elias Howe, who was a "non-practicing entity" or "patent troll." The Sewing Machine Combination ultimately spurred further commercial innovation that was essential to the success of the Industrial Revolution in the United States. Thus, the story of the invention of the sewing machine is a striking account of early American technological, commercial and legal ingenuity, which heralds important empirical lessons for understanding how the successful American patent system has weathered patent thickets and related problems.
He also mentioned to me the following:
Objectivists will appreciate this historical case study, because it's a great concretization of the values made possible by the political and economic freedom secured to American citizens in the nineteenth century. All in all, it's a fascinating tale of early American ingenuity in every aspect of modern life--in technology, law, and commerce.
The topic is currently under discussion at The Volokh Conspiracy, where Adam has been guest-blogging there for the past week on his paper. He has quite a few posts already, and you can find them all via the first post.
I've not yet read the paper, but I look forward to doing so... as I so often say these days... when I'm done the dissertation.
Also, I should mention that Adam is an occasional character on one of my favorite blogs -- The Little Things, written by his wife Amy.
By Diana Hsieh @ 12:01 AM
An old student of mine recently wrote me asking my views about the drug war. Here's what I wrote in reply:
Like you, I'd like to live in a society of rational, productive, and interesting people -- as opposed to stoners, addicts, and the like. However, I would argue that drug prohibition actually undermines that goal, as well as endangers innocent people. You simply cannot force people to be rational, productive, and interesting people -- and the costs of attempting to do so are enormous.
Drug prohibition creates more serious drug problems. Due to the legal risks of using drugs, people are more inclined to seek stronger and shorter highs. That, plus the unknown nature of most street drugs, promotes overdoses, addiction, and other medical problems. As the price of drugs rises hugely with the risks, drug addicts turn to stealing to support their habit. Moreover, the scum of the earth have a strong incentive to become drug dealers. Then, because those drug dealers operate outside the law, gang warfare becomes a way of doing business. Ordinary people simply attempting to live their lives are caught in the crossfire.
Even with all those problems, the drug war has been completely ineffective: illegal drugs are as plentiful and easily available as ever. We have no reason to think that greater brutality in the drug war -- like executing drug dealers -- will make much of a difference. (Such people often have little regard for their own lives, I think.) Plus, the costs of an overzealous police force are quite severe. No-knock raids on wrong houses are quite common these days. People are routinely killed as a result -- not just innocent residents but also police officers. (The homeowner often reasonably thinks himself to be in the midst of a violent home invasion, and so shoots a police officer.) The result is that ordinary, law-abiding people are abused and endangered by the police, rather than protected by them.
Moreover, once you accept the principle that the state ought to force people to do or not do something for the sake of some supposedly greater social good, then that's the end of all individual liberty. Someone can always make a case against anything that a person might do. So if a majority of people think that the world would be a better place if you didn't read certain controversial books, watch certain violent television programs, marry certain kinds of people, and so on, then laws could be passed and law-breakers hunted down. The world would be a much poorer -- and more frightful -- place as a result.
Even if drug prohibition could stamp out drug use, I would regard it as too much of a cost to bear. However, given that drug prohibition makes the drug problem worse, I think the only sensible thing to do is repeal it. Sure, just like with alcohol, gambling, sex, food, and every other pleasure, some people will abuse drugs. They would be welcome to ruin their own lives, but in a capitalist society no one else would be obliged to associate with them, pay for their medical care, or whatnot. Absent some danger to others, like driving drunk or high, the law would not intervene. They could quietly destroy themselves, if they pleased. You could avoid such people entirely -- unless you chose to associate with or otherwise help them.
All of that is probably more than you needed or wanted to hear from me! However, you might find the following writings from the Cato Institute on the drug war of interest. I don't agree with Cato on lots of things, but I think they're pretty good on this issue.
By Diana Hsieh @ 12:01 AM
I'm looking for a good source to help clarify the distinction between ordinary laws and regulations. Any suggestions? A relatively short online essay would be most helpful.
Here's why I'm asking: On Saturday, I attempted to argue against any and all regulations, on the grounds that ordinary laws would be sufficient to protect individual rights. I wasn't satisfied with my answer, as I felt like I had muddied the issue somehow. Then yesterday I was asked about the issue in e-mail, so I said the following -- tentatively:
Laws might be good (insofar as they protect rights) or bad (insofar as they violate rights). The same could be said of regulations. However, due to their different origins, regulations are dangerous to liberty, I think. How so? In essence, laws are a product of the legislative process, whereas regulations are a product of agencies of the executive branch.
Laws must be passed by our representatives: we can review the legislation, ask that they vote one way rather than another, and hold them accountable for their votes. This process is imperfect, particularly today. Yet we still find some measure of openness and accountability in it.
In contrast, regulations are passed by government bureaucrats in agencies answerable to the president. These bureaucrats may or may not court public opinion; they may have a narrow partisan agenda; they may not give a damn about public opinion. These agencies are likely to be ruled by special interests at the expense of the rest of us -- for the kinds of reasons that Milton Friedman observes in Free to Choose. In particular, the special interests stand to gain much by making the regulations in their favor, while each citizen (or resident) will only lose a bit. Consequently, regulations are very likely to violate rights in all kinds of horrible ways -- just as we see today.
In other words, regulations come to be when the legislative branch illegitimately cedes its power of making law to the executive branch. It's a dangerous violation of the separation of powers -- and an evasion of legislative responsibility. And the result is reams and reams of unknowable and often contradictory government edicts.
Is that basically right -- or am I totally confused? Also, as I mentioned at the outset, I am interested in any good sources on this issue of laws versus regulations.
Oh, and I should mention that I didn't cite Milton Friedman's Free to Choose because I'm a fan of the book. I'm not. However, Friedman's discussion of some of the tendencies of regulatory agencies is reasonably good, and I know that the other person has read it.
By Diana Hsieh @ 3:01 PM
Via The Agitator, here's a must-read: Fatal Distraction by Washington Post writer Gene Weingarten. It is one of the most heart-wrenching stories that I've ever read. It's about the loving parents -- 15 to 25 per year in America -- who accidentally kill their own young children by unknowingly leaving them in the car on a hot day. The article makes perfectly clear that the attempted prosecution of such parents for any kind of crime is completely unjust. Memory is inherently fallible -- as we all know -- and even the most loving parent can forget his or her own child. When such happens as a result of a fluke, rather than as the product of habitual failure to take proper care, the result is an unimaginable tragedy, not a crime.
I wish that I had time to write more about the issues pertaining to memory and negligence that the story raises, as that's right up the alley of my dissertation. Perhaps I can do that later.
Sadly, as the article observes, the laws regulating the way in which children are strapped into car seats contributes to the problem.
This is journalism at its finest. Prepare to have your mind engaged and your heart broken. Go read it.
Gay & Lesbian Advocates and Defenders (GLAD) is challenging part of the federal Defense of Marriage Act (DOMA) as unconstitutional, which is good. Any challenge to legal discrimination between same-sex and opposite-sex marriage is a good thing, in my book. No person of any status, married or single, gay or straight, has a right to government social welfare benefits. But government violates rights when it fails to protect any citizen who respects the rights of others. Voluntary marriages between two consenting adults do not involve the initiation of force against anyone, and therefore, do not abridge anyone's rights. Where there has been no violation of rights, there's no role for the government. End of story.
Unfortunately, this is probably the only good fight that GLAD is waging.
GLAD recognizes that ...
[t]here are many priorities for the LGBT community that likely rank ahead of a DOMA Section 3 repeal, including the passage of the Employment Non-Discrimination Act (ENDA), a hate crimes bill, the Uniting American Families Act (UAFA), and repeal of Don’t Ask, Don’t Tell (DADT).
What I find particularly noteworthy is the likelihood that the LGBT community thinks "a hate crimes bill" is more important than challenging DOMA. The only difference between "crime" and "hate crime" is motive. If I graffiti your property, I've violated your property rights. If the graffiti is of a swastika, what's the difference? Only the hurt feelings of the victim. This makes hate crime laws not about punishing objective rights violations, but about punishing some people for hating others. This is wholly improper, and itself a violation of rights. As Dr. Yaron Brook of the Ayn Rand Center said:
According to "hate crime" laws, a murderer deserves a greater punishment if his crime is motivated by an idea such as racism or sexism. If the government assumes the power to punish on the basis of "unacceptable" ideas, it has assumed the power to exonerate and offer leniency to favored ideas. If anti-abortion religionists hold sway in government, on the premise of "hate crime" laws, a zealous Christian who guns down an abortion doctor could receive a lighter sentence or be exonerated--on the grounds that such an act is evidence of noble "idealism."
Once the government starts punishing criminals for acting on "unacceptable ideas," it has assumed the role of arbiter for which ideas are acceptable or not. If whoever wields power can shape the law to advance an ideological agenda, then it cannot be long before merely holding unorthodox or unconventional ideas becomes a crime that the government punishes.
The government has no business punishing people for their ideas, no matter how repugnant. By demanding the government do precisely that, "hate crime" laws threaten our freedom of thought--and undermine the system of objective law that protects it. Such laws should be abolished.
So here's the problem. On the one hand, GLAD is challenging the fact that DOMA discriminates between heterosexual and homosexual marriage, discrimination that is clearly religiously motivated. On the other hand, GLAD wants to make it a crime for people to hate homosexuals. Religion is a feeling that there's a God. Hate is feeling that someone is vicious. Religion is a feeling. Hate is a feeling. Are we seeing a similarity, here?
In other words, GLAD thinks it is permissible to legislate feelings about homosexuality. Godbangers on the religious right think it is permissible to legislate feelings about marriage. What's the diff?
Ayn Rand wrote that "[w]hen men share the same basic premise, it is the most consistent ones who win." One can argue whether GLAD or the godbangers are more consistent in their calls for thought control. But that's just the problem -- it's arguable. GLAD is, putting it mildly, inconsistent on the issue of thought control. And unfortunately, same sex marriage advocacy happens largely through groups like GLAD.
Equal marriage rights is a legitimate issue, but so long as GLAD is hypocritical about thought control, the drive to eliminate discrimination in marriage is vulnerable to defeat by opponents -- like the godbangers -- who are more consistent in their drive to become the nation's thought police.
The solution, naturally, is for all proponents of same-sex marriage to make a consistent, principled argument on the basis of individual rights for everyone, in all circumstances, no exceptions. In fact, that's the solution in a number of analogous cases involving attempts to shove religion down our throats, like the attempts to teach creationism in schools, or to outlaw abortion.
When freedom-lovers fight on the basis of principles, the difference between the religious right and the defenders of individual rights is clear for all to see.
Beck poses as a victim, asking why it is that the 10% of the country who doesn't believe in God is pushing the other 90% around and forcing their nonbelief down their throats. Believers don't do that, he says, so why not just let people be? Of course, striking down a mandatory moment of silence-or-prayer isn't forcing nonbelief down peoples' throats -- it's only stopping believers from forcing their religion down others' throats via violations of individual rights. Talk about spin. Even purely secular-sounding "moments of silence" only exist because of believers' desire to get God into the classroom to indoctrinate children.
Beck goes on to exaggerate that "it's been deemed unconstitutional to even say the word 'prayer' to our children," and Dobson says that "they just have to eliminate even the possibility that someone might pray." Um, no: the kiddies are free to pray anywhere at any time as long as they aren't being disruptive. What's been deemed unconstitutional is taking money from taxpayers by force to fund schools students are compelled to attend, and then requiring them to do or be indoctrinated in your religion. Reading the text of the ruling, you can see how the judge traces out where and how the line is crossed. (Of course, if we didn't have government schools that people are forced to fund and required to attend, then this would be a non-issue. Don't like your school's policy regarding religious indoctrination? No rights violation there, and you're free to find or form another school. Have a nice day.)
So, does it count as dishonest or just weak-minded when Beck turns to a wider point to claim that "in this country, our rights come from God" and to ask the rhetorical question, "if you take God out of the picture, then where do rights come from?" Oh, I see your point: you don't seek to ram your religion down peoples' throats... but we really do have to make sure your religious ideas are rammed down peoples' throats lest civilization collapse. Got it.
But I'm happy he asks about the basis of rights, because it reminds me that more people need to appreciate the analysis Ayn Rand offered in her classic essay, "Man's Rights":
The concept of individual rights is so new in human history that most men have not grasped it fully to this day. In accordance with the two theories of ethics, the mystical or the social, some men assert that rights are a gift of God -- others, that rights are a gift of society. But, in fact, the source of rights is man's nature.
The Declaration of Independence stated that men "are endowed by their Creator with certain unalienable rights." Whether one believes that man is the product of a Creator or of nature, the issue of man¿s origin does not alter the fact that he is an entity of a specific kind -- a rational being -- that he cannot function successfully under coercion, and that rights are a necessary condition of his particular mode of survival.
"The source of man's rights is not divine law or congressional law, but the law of identity. A is A -- and Man is Man. Rights are conditions of existence required by man's nature for his proper survival. If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his values and to keep the product of his work. If life on earth is his purpose, he has a right to live as a rational being: nature forbids him the irrational." (Atlas Shrugged)
Once again, the answer to the idea that our options are restricted to either religion or anything-goes subjectivism is that this alternative is malformed. Rather: it is either objectivity and facts, or whim. The right-religious whimsy approach to "rights" is just as wrongheaded and dangerous as the left-secular whimsy approach to "rights."
It is unlawful for a person in a public forum or place of public accommodation wilfully and knowingly to publish orally or in writing, exhibit, or otherwise make available material containing words, language, or actions of a profane, vulgar, lewd, lascivious, or indecent nature.
And:
It is unlawful for a person to disseminate profanity to a minor if he wilfully and knowingly publishes orally or in writing, exhibits, or otherwise makes available material containing words, language, or actions of profane, vulgar, lewd, lascivious, or indecent nature.
Violating either provision would be a felony -- with the potential for five years in prison: "a person who violates [either provision] is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years, or both."
Ah well, at least the Bible would be banned along with Atlas Shrugged -- and almost everything else, including swearing within earshot of your 17-year-old kid.
The bill is currently in committee. While I'm sure it won't go anywhere, the fact that such legislation could even be proposed in 21st century America is mind-boggling.
By Paul Hsieh @ 1:01 AM
Some Maryland high school students are using speed cameras to "exact revenge on people who they believe have wronged them in the past, including other students and even teachers".
High school students in Maryland are using speed cameras as a tool to fine innocent drivers in a game, according to the Montgomery County Sentinel newspaper. Because photo enforcement devices will automatically mail out a ticket to any registered vehicle owner based solely on a photograph of a license plate, any driver could receive a ticket if someone else creates a duplicate of his license plate and drives quickly past a speed camera. The private companies that mail out the tickets often do not bother to verify whether vehicle registration information for the accused vehicle matches the photographed vehicle.
...A speed camera is located out in front of Wootton High School, providing a convenient location for generating the false tickets. Instead of purchasing license plates, students have ready access to laser printers that can create duplicate license plates using glossy paper using readily available fonts. For example, the state name of "Maryland" appears on plates in a font similar to Garamond Number 5 Swash Italic. Once the camera flashes, the driver can quickly pull over and remove the fake paper plate. The victim will receive a $40 ticket in the mail weeks later.
These speed cameras are a technological embodiment of the flawed principle of "guilty until proven innocent". These sorts of "pranks" (and the subsequent injustices) are a predictable result of this bad approach to enforcing the law.
By Paul Hsieh @ 12:43 AM
The December 17, 2008 New York Times reports on the variety of reactions that NYPD police officers have to being videotaped while performing their official public duties in this interesting article, "Officers Become Accidental YouTube Stars".
The article notes that videotaping police is entirely legal, as long as it doesn't interfere with the performance of their duties. And some police officers correctly recognize that fact:
"People tape all the time," said an eight-year veteran of the department, a female officer in Downtown Brooklyn who, like other officers questioned for this article, spoke only on the condition of anonymity because she is not authorized to speak to reporters. "It makes you uncomfortable, but that's their right. You can't stop them from taping."
Unfortunately other NYPD officers hold the following mistaken view:
An officer directing traffic in Brooklyn asserted that it is illegal to tape police officers. "If I know that he's taking video, I'm going to walk up to him and stop him," the officer said.
Or in another encounter:
...[A] man asks an officer if he may film him, and the officer replies, "You going to post them on the Internet? Then I'm going to have to break your camera over your face." But he and other officers laugh, as does the cameraman, who eventually walks away. The video had 19,370 views as of Tuesday evening.
Provided that citizens don't interfere with official police duties, this sort of transparency is a good thing. It can protect innocent civilians from police misconduct as well as protect honest police officers from wrongful claims of misconduct.
Given that it is perfectly legal for citizens to observe and truthfully write about any actions that police officers perform in public view while "on the job", it should be (and is) similarly legal to record their official actions on video.
Note that the bicyclist was originally charged with "resisting arrest, disorderly conduct and obstructing government administration." After the video surfaced, those charges were dismissed.
By Paul Hsieh @ 12:19 AM
The Washington Post had a terrific story in October of how the British used a laundromat as a counterterrorist tool against the Irish Republican Army. Here's an excerpt:
...Having lost many troops and civilians to bombings, the Brits decided they needed to determine who was making the bombs and where they were being manufactured.
One bright fellow recommended they operate a laundry and when asked "what the hell he was talking about," he explained the plan and it was incorporated -- to much success.
The plan was simple: Build a laundry and staff it with locals and a few of their own. The laundry would then send out "color coded" special discount tickets, to the effect of "get two loads for the price of one," etc. The color coding was matched to specific streets and thus when someone brought in their laundry, it was easy to determine the general location from which a city map was coded.
While the laundry was indeed being washed, pressed and dry cleaned, it had one additional cycle -- every garment, sheet, glove, pair of pants, was first sent through an analyzer, located in the basement, that checked for bomb-making residue. The analyzer was disguised as just another piece of the laundry equipment; good OPSEC [operational security].
Within a few weeks, multiple positives had shown up, indicating the ingredients of bomb residue, and intelligence had determined which areas of the city were involved. To narrow their target list, [the laundry] simply sent out more specific coupons [numbered] to all houses in the area, and before long they had good addresses.
After confirming addresses, authorities with the SAS teams swooped down on the multiple homes and arrested multiple personnel and confiscated numerous assembled bombs, weapons and ingredients. During the entire operation, no one was injured or killed.
When I sent it to one of my physician friends who was born in Canada but is now a US citizen, he replied (quoted with his permission):
Thank you for sending this. The entire process took me nine years and about $15k. The time, energy and money spent on becoming an American citizen was the best investment by far that I ever made. I have far more freedom to pursue my intellectual and career goals in the USA compared to any other country.
Also our [child] would likely not have survived if [my wife and I] had not had access to the home fetal monitoring technology developed by Michael Katz in San Francisco. The home fetal monitoring picked up premature labor several times including the preterm labor before delivery. The doctors were able to give steroids to improve lung maturity and delay the Caesarian section. This technology would never have available in Canada.
I shudder at how our life might have turned out if we stayed in Canada.
I think the USA has a moral obligation to liberalize immigration. If someone wants to work and someone wants to hire him and they are not shmucks or scoundrels we should allow them to make their own choice.
I completely agree.
For those who are interested in a more detailed discussion of this topic, I highly recommend Craig Biddle's article in the Spring 2008 issue of The Objective Standard entitled, "Immigration and Individual Rights".
The Maryland State Police classified 53 nonviolent activists as terrorists and entered their names and personal information into state and federal databases that track terrorism suspects...
The article also notes:
Both [former state Police Superintendent Thomas] Hutchins and [current Police Superintendent Terrence] Sheridan said the activists' names were entered into the state police database as terrorists partly because the software offered limited options for classifying entries.
I guess that the old 1940's excuse of "I was just following orders!" has now apparently now been upgraded into "The software left me with no other choices!"
On a more serious note, this sort of misclassification is wrong in two ways.
First, it's obviously unjust to any peaceful protestors who are exercising their legitimate rights to free speech and to oppose government policies. Second, it clutters up the terrorist database with non-terrorist names, thus hampering law enforcment operations against genuinely violent terrorists and criminals.
Of course, violent protestors should be dealt by the police with an appropriately forceful response, in order to protect individual rights. But the conflation of "protestor = terrorist" in the minds of the police is a dangerous one.
Unless this mindset is challenged, the semi-joking attitude expressed today on this t-shirt from the Denver Police Union may become the norm in tomorrow's real-life police state:
Microsoft's general counsel, Brad Smith, says that "if search is the gateway to the Internet . . . this deal [with Yahoo] will put Google in position to own that gateway and the information that flows through it" ("Top Lawyer Is Selected as U.S. Mulls Google Suit," Marketplace, Sept. 9). Why shouldn't they own it? They built it. Google is the most popular search engine because of the relevance and speed of its results; it is the dominant advertising platform because ads are more effective there than anywhere else. Google deserves its leading position and the rewards that go with it.
This case, like every other major antitrust case from Standard Oil to Microsoft, aims to punish a winning company for the crime of winning. This is a grave injustice to Google and will only harm the industry in the long run. Why place the ideal of "competition" ahead of the economic productivity that competition is supposed to promote?
It would be far more just, and better for the economy, to simply let the winners win.
By Paul Hsieh @ 1:23 AM
Two recent stories from the UK should serve as a warning for Americans. Unless we fight the battle against bad environmentalist ideas now, we'll be facing similar problems in the US in just a few years.
The goal, of course, is to reduce pollution and carbon emissions, and it would be humorous if it were not so wrong-headed.
The second more alarming story comes via Amit Ghate. A jury in the UK has acquitted a group of Greenpeace vandals who inflicted thousands of dollars worth of damage against a coal-fuled power plant:
Jury decides that threat of global warming justifies breaking the law
...Jurors accepted defence arguments that the six had a "lawful excuse" to damage property at Kingsnorth power station in Kent to prevent even greater damage caused by climate change. The defence of "lawful excuse" under the Criminal Damage Act 1971 allows damage to be caused to property to prevent even greater damage -- such as breaking down the door of a burning house to tackle a fire.
How will it be before long before that far-fetched fictional example turns into tomorrow's real-life killing spree?
This is all the more reason to support the "EPA Ruination" project by John Lewis and Paul Saunders. Feel free to forward their "Letter to All Americans" to any appropriate venues and/or use their talking points in your own letters, conversations, etc. Their letter also includes links on how to give feedback to the EPA.
Remember: "Outlawing carbon means outlawing civilization."
This cartoon from Wondermark pretty much says it all:
By Gina Liggett @ 1:00 AM Lobbying is often scorned, and commonly considered an unethical practice of influencing lawmakers. Even though there are thousands of lobbyists working at all levels of government for every conceivable interest group, it is corporations that often receive the most wrath.
For example, Barack Obama brags: "I am in this race to tell the corporate lobbyists that their days of setting the agenda in Washington are over. I have done more than any other candidate in this race to take on lobbyists - and won."John McCain has been criticized for being anti-lobby while at the same time courting the advice of several corporate lobbyists; but he's quick to wash his hands of this hypocrisy, saying, "At no time have I ever done anything that would betray the public trust."
But petitioning the government either as an interest group, private citizen, or corporation, is a fundamental right explicitly enumerated in the petition clause of the First Amendment to the U.S. Constitution: "Congress shall make no law.... abridging...the right of the people...to petition the Government for a redress of grievances."
And according to the First Amendment Center at Vanderbilt University, lobbying is considered a form of petition (with no guarantee that the lobbyist will get what he wants):
"Lobbyists try to persuade government officials either to support or oppose various policy issues. Therefore, lobbying can be considered a form of petitioning the government for redress of grievances, subject to protection under the First Amendment's petition clause. Although there has not been a great deal of judicial analysis on First Amendment protections afforded to lobbying, the courts have carved out several parameters. First, the petition clause does not grant a lobbyist the absolute right to speak to a government official nor does it grant a lobbyist the right to a hearing based on his or her grievances. In addition, the clause does not create an obligation for a government official to take action in response to a grievance. Finally, any statement made while a lobbyist petitions a government official does not receive greater protection than any other expression protected by the First Amendment."
So, with the political bias against corporate lobbying, how are companies supposed to survive when politicians attempt to make laws and regulations that threaten their businesses? Are they just supposed to shut up and accept any capricious violation of their property rights?!
Because there is no separation of state and economics in America---resulting in the mixed capitalist-socialist economy we have today---it is imperative that the right to petition government be upheld. It may be the only way, albeit indirect, to fight for property rights.
While some interest groups and companies improperly lobby for government handouts and preferences, and play the infamous "pork-barrel" game, this is not because the right of petition is wrong, but because the entanglement of government and the economy is wrong.
The essential point is this: politicians' flagrant disregard of the First Amendment right to petition is symptomatic of not only their power lust, but their arrogant disdain for the concept of individual rights, property rights and government's proper role as servant to the people.
And the "people" includes the companies which create the wealth and the necessities of our daily life. If politicians legislate them out of existence directly by regulations or indirectly by limiting their right to petition, then government will truly have total power over the economy--and you and me.
By Diana Hsieh @ 12:01 AM
On Wednesday, I received the following e-mail from Mary Fries, the owner of Isle Farms with her husband Rod. I own a cowshare and a half with them, so that I can drink a gallon and a half of their clean, safe, and delicious raw milk each week.
I decided to post it here, with permission, because it highlights the very real evil of blind sympathy for wild animals fostered by animal rights activists. Plus, given how much I love my raw milk, I'd be delighted if others would write a supportive e-mail to the County Commissioner.
Here's the letter from Mary:
Dear Shareholders,
I realized last night that this issue pertains as much to you as it does me, so I wanted to include you and ask for your help.
Yesterday, I was out on the land, checking in on a new calf that was born this weekend. As I was standing in front of the herd, they all started running-straight towards me!-and it was all I could do to spin around one, step, spin again, and end up leaning up again the barb-wired fence. Right behind the cows, at full run, were a pack of wild dogs. One was a pit bull-who headed straight for me. I grabbed an old fence post that was by my feet, and that detoured him from coming closer. He and the other dogs left without further prodding.
This is a good summary of what the news was talking about a few weeks ago, about the dogs here in Ellicott. We personally have been fighting this problem from the get-go. The law regarding wild dogs is this -- you can only shoot them if they are in the midst of attacking your livestock. Many times Rod has gone out there with the shotgun, while the dogs were in the midst of chasing the cows, but by the time he gets in range, the dogs see him coming, and run off.
I phoned Amy Lathen (County Commissioner) almost immediately yesterday. She headed up the plan to finally get these dogs under control, after years of complaints from residents. When I explained what happened, she said she had a contract ready to go with the USDA for the trapping, but they were dragging their feet. Apparently, after the news ran the segment, they got so many emails from not just Colorado Springs residents, but throughout the country, and all the way from INDIA!!, with people berating their efforts as inhumane.
I'm all for animals, but the people emailing do not have any idea of what the farmers and ranchers face when these things happen. For our farm, and many others in the area, this is part of our livelihood. These dogs are WILD, and the situations that are arising, are downright dangerous for both livestock and humans. And humane -- what about the cows? They stress from being chased, and having to fight them off!
I'm asking that all of you take a second and email Amy, let her know that you are behind her effort to help our community keep ourselves and our livestock safe. You can say anything -- a short "we are behind you in your efforts" to "I have ownership in livestock in Ellicott, and support you in helping keep them safe". Whatever you can do, I think she was pretty beat up over this whole thing.
Although -- her final words to me were "That's it. We are going to do this." Here is her email -- AmyLathen@elpasoco.com
Huge thanks to you all, from me AND the cows :o)
One more thing -- after the cows stampeded past me yesterday, they ran in a U shape, and I was trying to figure out why they didn't run VERY far away. Then I happened to notice, surrounded by 18 pairs of hooves, a little head popping up out of the grass -- Baby Dolla :o) They weren't going anywhere with that baby unprotected... what good cows :o)
Mary
Here's the letter that I wrote to the County Commissioner:
Dear Ms Lathen,
I'm a resident of Douglas County, but I have livestock in Ellicott. (I have shares in Mary and Rod Fries' herd.)
I'm very concerned to hear of the wild dogs that have been periodically terrorizing their farm, putting people and livestock at risk. So I wish to express my wholehearted support for the county doing whatever is necessary to neutralize the threat posed by these wild dogs.
Human lives and property should not be at the mercy of dangerous feral dogs due to misplaced public sympathy for them. Human beings and human concerns should come first!
Thank you for your efforts to take care of the problem.
(Please feel free to forward this letter to whomever you please, if that would be helpful to you.)
-- DMH
Please feel free to write your own brief letter of support to the County Commissioner (AmyLathen@elpasoco.com). She needs some moral support for her totally just decision to prioritize humans and livestock over dangerous feral dogs. Basically, it's a good opportunity for a wee bit of activism against the animal rights crusaders. And it could make a great deal of difference to the safety and welfare of the people and livestock terrorized by these dogs.
Suppose that I'm asked to sit on a trial of a person for possessing and/or selling illegal narcotics. Suppose that he's obviously guilty. Should I vote to convict or not?
If America were substantially free, I would be somewhat more inclined to oppose jury nullification, on the grounds that any bad laws can and perhaps ought to be repealed by the legislature or struck down by the appeals courts. Moreover, to engage in jury nullification might seem to be an attack on the principle of the rule of law, as it would permit juries to decide willy-nilly whether to enforce the law of the land or not.
However, I'm not convinced that that's right for two reasons. First, that approach involves sending people to prison (or inflicting some other punishment) for something that they have a perfect right to do. That seems to be a moral sanction of the unjust law, not to mention participating in a blatant rights violation. Second, jury nullification on a high profile case can serve as a major public rebuke to an overreaching legislature. (That happened in some of the sedition cases in America's early years.) Moreover, the judicious use of jury nullification in select cases is not tantamount to anarchy, I don't think. It can and ought to be used selectively and purposefully.
However, America today is not a substantially free society, so the case for jury nullification is even stronger. In fact, as concerns drug laws, America is far closer to a police state than a free society. The most recent mind-numbing case is the raid on the home of Berwyn Heights Mayor Cheye Calvo: "A Prince George's County, Maryland SWAT team raided the home of Berwyn Heights Mayor Cheye Calvo last night, shooting and killing his two black labs in the process." The man was totally innocent: drug dealers sent a 30 pound package of marijuana to his house, planning to intercept it. The police treated him as guilty until proven innocent, despite the fact that all evidence pointed to his being an upstanding citizen. (You can find links to more posts on the story here. Here's another horrific case. In general, Radley Balko is a good source for news about the frightening tactics of police in pursuit of the war on drugs. He's on vacation now, however, so other people are guest-blogging for him.)
So... back to my original question: If I'm picked for a jury, should I send a person to jail for an action that ought not be a crime at all -- on the grounds that I ought to respect the rule of law, even when I disagree with the particular law in question?
Unless someone offers a good reason for me to think otherwise, I'll have to say "no way, buster." You've got until Tuesday morning to convince me otherwise, if you wish!
Now banned in Boston, perhaps because of the risk that they might bring too much happiness to the humans involved.
The Massachusetts House has passed a bill that would outlaw pet rental in Massachusetts:
The bill, filed by Representative Paul K. Frost, Republican of Auburn, outlaws pet-rental companies because of what he called "public health, public safety, consumer concerns, and ethical issues."
"I'm very pleased we were able to get it passed today and engrossed in the House," Frost said. "It's a kind of business model that fosters disposable pets."
Let's unpack that one, shall we?
People presumably rent pets because they enjoy them but have decided they're really unfit to own one. Or perhaps they are unsure whether they want a pet so they want to try it out first. Isn't it better that these people don't proceed directly to pet ownership? And doesn't this create a larger pool of potential owners, as potentially responsible pet owners, originally unsure of their fitness and so abstaining from ownership, learn first-hand that they really would be a great pet owner?
Now, consider the following facts about the pet rental business in question:
All of the pets are rescued animals who have been socialized and trained.
The pet rental company lets you adopt a pet you like.
The pets aren't kenneled, but live in homes when they're not being rented.
After they've passed rental age, they're placed into permanent homes and provided for by the pet rental business -- for life.
Any pet rental company with crazed animals is going to go out of business, after which its owners will be sued into oblivion.
The only way to sell a desirable product -- an enjoyable animal companion, in this case -- is by treating it very, very well.
Read more of the FAQ at FlexPetz and you'll realize just how well those pets are treated. I don't think that the people who are against pet rental have actually read the FAQ and understood how ethically that business operates. It's clear that pet rental is a perfect option for animals in shelters and pounds that no-one is adopting, but who are otherwise adoptable. Would the animal activists prefer that these animals languish in shelters with no human attention for the last miserable days of their lives?
Frankly, I think pet rental will promote pet adoption. And for those pets no-one wants to adopt, at least they'll be treated very well simply because of the profit motive, and because they will never have to spend time with a human who isn't 100% excited to have them around.
None of this is to say that animals, even those humans adopt as pets, have any legal rights. They don't. But it is possible to pass judgment on whether a person's behavior towards an animal is moral or immoral. FlexPetz looks decidedly moral.
For the people opposed to this business, I think happiness is a miserable puppy. Lonely animals on death row in shelters give them something to vent their nihilistic rage about.
By Paul Hsieh @ 12:15 PM
The topic of "conditional property" came up briefly in the comments section for the "Stealing Jesus" post, and I think it's an interesting one. Although I'm not a lawyer, I'd like to offer a few thoughts and I gladly welcome further input from those with more legal knowledge.
Leaving aside the specifics in the original post on the Communion Wafer, here is the interesting broader question:
Can one sell or give property to another person, yet have the new owner bound by some sorts of conditions that restrict his or her use of that property?
Under ordinary circumstances, I'd say the answer is "no". If I sell my old laptop computer to someone, then he becomes the new owner and he can do with it what he wants (provided he doesn't violate anyone else's rights). So he can use it as a computer, he can sell it to his cousin, he can use it as a doorstop, can use it for target practice, etc.
Of course he couldn't use it as a club to smack his neighbor over the head, because that would be violating someone else's rights. But apart from that, the laptop is his to do with as he pleases. And note that this restriction applies to any of his rightfully-owned property. He couldn't use his legitimately-owned baseball bat or crowbar to beat his neighbor over the head any more than he could use the laptop.
This common sense understanding that property ownership is not conditional is mentioned briefly in a passage in Atlas Shrugged, in the scene where Ragnar Danneskjold hands to Rearden a bar of gold (emphasis mine):
It is not a gift, Mr. Rearden. It is your own money. But I have one favor to ask of you. It is a request, not a condition, because there can be no such thing as conditional property. The gold is yours, so you are free to use it as you please. But I risked my life to bring it to you tonight, so I am asking, as a favor, that you save it for the future or spend it on yourself. On nothing but your own comfort and pleasure.
(From Part Two, Chapter VII, "The Moratorium On Brains")
In this context, where Rearden is taking possession of gold that is rightfully his, then I completely agree -- Ragnar does not have the right to impose any sorts of conditions on Rearden's use of his own property.
However, there are other contexts where I think there can be restrictions on one's use of property that one owns. In particular, I can think of two ways in which this can happen.
The first is when the original owner sells you the property minus certain specific rights. For instance, a property developer might sell me a plot of land on which I can live and build my house, but he might retain to himself (perhaps to sell to someone else) the mineral rights for that plot. In that case, I can't go digging for gold on the property, since I never acquired those rights in the original purchase, even though I can still plant apple trees in my backyard and otherwise exercise all the other rights associated with that land.
I still own the land and the rights to build a house or plant apple trees. But I don't own the mineral rights. I don't consider this unusual or problematic. It's no different than if I purchased the land outright (including the mineral rights), but then subsequently sold those mineral rights to someone else and kept the rest for myself.
If there are certain rights associated with a piece of property that can be separable in this fashion, this situation will arise. This occurs commonly with intellectual property. For instance, an author might retain the rights to the book form of his or her novel, but sell the movie rights to someone else.
A second form of something that seems a lot like "conditional property" is when money or property is donated to another organization with specific provisions and requirements on how the property must be used.
For instance, suppose I own a valuable painting by Rembrandt, and I would like to see it go to a new owner that shares my values and shows proper respect for the work. In that case, I might wish to donate it to my local art museum on the condition that they agree to keep it on public display 6 months out of the year for other art lovers to enjoy, and they also agree to keep it in the usual secure climate-controlled conditions to preserve its value. In particular, I don't want to see it in the hands of some wealthy slob who will abuse this masterpiece by using it as giant beer coaster in his living room table.
Assuming that I and the art museum draw up an appropriate contract with clear unambiguous terms specifying their rights and obligations (including clauses to ensure proper monitoring and enforcement), then the museum would own the painting, but they should be bound by these conditions. So in this sense, it acts very much like what some people might call "conditional property", but as a matter of explicit contract.
I'm not a lawyer, so I don't know how best to structure a contract that would take care of cases where the museum fails to live up to its promise. In that case, should the painting revert back to the me, the original owner? Or to a second-choice owner or some sort of legal trust? I'm not sure. But although I don't know how best to implement this principle, I believe the underlying principle is valid.
Note that these sorts of situations are also relatively common. A wealthy industrialist might wish to donate $1 million dollars to his alma mater in order to fund a full-tuition scholarship for the top undergraduate chemistry majors in each year. If the university took that money, they should be bound by that agreement and not spend that money on, say, a new gymnasium for the basketball team. So even though the university owns the money, they again have restrictions on what they can rightfully do with that money.
Summary: In its simple form, barring any explicit agreement otherwise, I believe there is no such thing as "conditional property".
But I also believe that it is possible to acquire property as part of a voluntary contractual agreement where the terms include legally binding restrictions on what one can or cannot do with one's newly-acquired property. (Whether the proper term for this is "conditional property" or whether there is a more appropriate term for this concept is a separate question.)
Postscript: There are all sorts of interesting secondary issues that one could explore -- for instance, what sorts of contracts should be enforced, what about mind-number 100-page end user agreements where there may not have been a true "meeting of the minds", etc. I'll leave those subtleties to those with a better understanding of the philosophy of law than myself.
By Greg Perkins @ 12:05 AM
There are two natural criteria to attend to if we are to advocate the death penalty in our justice system: we must establish that we are objective in identifying, say, heinous murderers -- and we must establish that it is morally permissible if not mandatory to kill them when so identified.
I want to focus here on the moral question: should we kill the heinous murderer when he is so identified? (I appreciate that the epistemological troubles of our justice system are substantial and likely rule out as negligent the imposition of any punishment so decisive and final as the death penalty. For the moment, though, let's set aside today's epistemological issues and their general reform; please assume objective convictions for this discussion of punishment.)
In addressing the morality of the death penalty, we may be tempted to simply appeal to retributive justice and say that one should lose a life for taking a life, discussion over. But while Objectivists support a retributivist justice system, this principle is not by itself decisive regarding the specific punishment of the death penalty: notice we can't and don't attempt to balance crime and punishment literally, with an eye for an actual eye, a theft for a theft, and so on. (Consider the simple example of an arsonist burning down your house. It is not possible to likewise burn down his if he is a renter.) No, we are satisfied -- and necessarily so -- with the justice of something more indirect. We use proxies like imprisonment and fines, scaled and otherwise adjusted to achieve the effect we seek in matching punishment to endless variety in crime. So any answer to the moral question around the death penalty has to accommodate this and explain just what would make killing a heinous murderer necessary in lieu of, say, locking him up for life.
I haven't yet seen any fundamental explanation of what would require "the ultimate punishment" in the face of this element of flexibility in our response to crime. Here I'll propose a way of thinking about punishment that answers that challenge, and more. (Because I am not a lawyer and could easily be confused about our legal system, I especially encourage legally-savvy readers to jump in and correct or clarify as needed!)
Nested Classes of Offense
First, note how Objectivism carefully distinguishes immorality in general from criminality, a particular species of immorality. Shunning productiveness is your own problem, until you start stealing from others to feed yourself. The key distinguishing feature here is the initiation of physical force (including indirect forms, like fraud). It is one thing to choose not to pursue life yourself -- i.e., to choose not to be moral -- but it is another to also initiate physical force and prevent someone else from doing so, suppressing their moral agency. This is why the Objectivist politics identifies the proper scope of government action (and any legitimate use of physical force) as a response only to violations of rights, leaving all other matters to force-free resolution via, say, personal disassociation. It is specifically the initiation of physical force which necessitates a response involving physical force.
I am going to argue that just as rights violations are essentially different than other cases of immorality and thus require an essentially different kind of response, that there is an essential distinction between criminal offenses and civil offenses that requires an essentially different kind of response, and that there is an essential distinction between capital offenses and other kinds of crime that requires an essentially different kind of response. In every case, the nature of the offense is different in kind than offenses from the other classes, and in all cases the nature of any response, to be just, must at least match the offense in kind. That is: while injustice is possible if crime and punishment are not well matched, justice is impossible if they are not at least from fundamentally commensurable classes.
Consider then the following classes of offense and how they relate to each other, beginning with mere immorality and progressing through nested subclasses of ever-stronger rights violations (yes, as I try to frame these categories in terms of essentials, I may be shifting some boundaries as currently conceived and implemented in our legal system) :
Immorality: when someone operates counter to the fundamental principles of sustaining human life (is dishonest, irrational, lacks integrity, etc.). In this case, others are free to respond with a range of peaceful forms of disassociation (by, say, avoiding someone, or perhaps even advertising that choice and their reasons for it). Lameness calls for loneliness. Note how offense and response must be at least fundamentally commensurate: where there is no physical force being initiated, no physical force may be used in response (otherwise that would itself be an injustice to take legal note of -- an initiation of force, criminality in response to mere immorality).
Civil offenses: when someone isn't just immoral, but more specifically bears responsibility for damaging an innocent's person or property (say, with an irrational contract dispute, or an at-fault driving collision). In this case, our justice system compels the offender to repair the damage they are responsible for. Damage calls for restoration. Note how again offense and response must be at least fundamentally commensurate: responding to a civil misdeed with only disassociation of any stripe would be unjust -- and, as indicated above, responding to mere immorality with compulsory "reparations" of any kind would likewise be unjust.
Criminal offenses: when someone isn't just responsible for harming an innocent's person or property, but more specifically intentionally curtails an innocent's moral agency (say, with armed robbery, fraud, burglary). In this case, our justice system in turn curtails the offender's moral agency (his liberty via imprisonment, his property via fines and confiscation). Curtailment calls for curtailment. Note yet again how offense and response must be at least fundamentally commensurate: responding to a criminal misdeed with only compulsory reparations would be unjust -- and responding to mere civil offenses with imprisonment of any length would likewise be unjust.
Capital offenses: when someone chooses not just to curtail an innocent's pursuit of life, but more specifically to eliminate an innocent's life (say, with premeditated murder). Here then is the key distinction to observe: murder isn't merely subverting someone's means to continued existence, curtailing their pursuit of life -- it is purposefully eliminating their life itself, ending their existence altogether. There is a difference in kind between the implicit and the explicit, the means and their end, and these cannot be treated as merely different in degree. Annihilation calls for annihilation. As with the other classes above, offense and response must be at least fundamentally commensurate: responding to a heinous murder with only imprisonment, no matter the length, would be unjust -- and responding to a mere criminal offense with any form of the death penalty would likewise be unjust.
I think the above clarifies the objective basis for capital punishment, cementing the moral necessity of its use when the proper conditions have been met (and please note again that such conditions would include an epistemologically sound conviction).
Because the above organization encompasses and relates the entire range of misdeeds and response along principled lines, we have an opportunity to see if it might help explain, or even suggest adjustments to, other aspects of our justice system.
Decomposition of Crime and Composition of Response
Focus now on how the above classes are nested, with each being a narrowing of the preceding: Not every moral breach is a civil offense (often one is only harming oneself, or only harming others in non-rights-violating ways) -- while every civil offense is necessarily a moral breach (that is the source of the responsibility for a rights-violating harm). And not every civil offense is a criminal offense (being responsible for harm and intending to do harm are not the same thing) -- while every criminal offense is a civil offense (intending to do harm certainly makes you responsible for it). And so on through all of the classes.
This indicates that responses should not be limited to only what is indicated by the narrowest category that applies, but must also include any relevant responses from each of the broader enclosing classes as well -- because they all apply. So murderers should expect time in prison (for the criminal aspects), being forced to make any possible reparations (for the civil aspects), and certainly infamy and social ostracism (for the moral aspects), on their way to annihilation (for the capital aspect). And a burglar should expect fines and jail time (for the criminal aspects), to restore his victim (for the civil aspects), and to suffer social ostracism (for the moral aspects). Any given crime must be treated on all applicable levels, by decomposing its aspects into relevant charges, and addressing each to compose the full response.
Our legal system's support for separate treatment of civil and criminal offenses is a mechanism for satisfying this need. But it is also interesting to see how the cascade of offenses above helps us see how our approach is not the only way to satisfy this need: a different court system could, say, use a single trial, decomposing the offense into its various charges at all levels for appropriate assessment, and then handing down a single, integrated response. The cascade of offenses also clarifies how holding separate civil and criminal trials needn't introduce the injustice of "double jeopardy": the charges and potential punishments for each of these classes are different in kind -- one being about responsibility for damages, the other about criminal curtailment of moral agency or worse. So whether or not both of these aspects of a crime are assessed during the same proceeding is immaterial, a matter of convenience or tradition.
One danger of our current two-trial approach, though, lies in blurring the distinction I've drawn between civil and criminal matters. Their division of judicial labor can become unprincipled and uncoordinated: consider that we have criminal courts handing down orders for reparations, and civil courts handing down orders for "punitive damages." This blurring of responsibilities seems to flirt with the injustice of double jeopardy. Worse still, in the case of civil courts drifting into handing down punishments, the higher standard of judgment demanded in criminal proceedings is being evaded.
Graduated Standards of Judgment
Regarding standards of judgment, consider how this nested structure highlights qualitative leaps in the gravity and irreparability of offense and response. Combined with the fact of limited time and resources, this suggests the need for qualitative leaps in standards of judgment and extent of oversight. Negligence in the justice system itself cannot ever be acceptable (that would render it literally an injustice system) : the more grave and/or irreparable the crime, the more diligence we must bring to bear to ensure correctness in conviction and punishment with a similarly grave and/or irreparable response. Our present system addresses this need as follows:
In civil judgments we must show responsibility for damages. Our system's standard for demonstrating such liability is that of a "preponderance of the evidence", which seems to roughly correspond to what Objectivists technically classify as "probable" [OPAR 178].
In criminal judgments, we must show intent to commit a rights violation (i.e., the initiation of physical force, even indirectly like with fraud or potentially with assault). Our system's more-rigorous standard for demonstrating such guilt is that of "beyond a reasonable doubt", which seems to roughly correspond to what Objectivists technically classify as "certain" [ibid].
In capital judgments, we must show intent to cause a rights-violating death. This requires the standard of criminal judgments, with the additional requirement of appeals and extended scrutiny and oversight to further insure against any systemic negligence.
Carefully observing the proper standard for each aspect of a crime is required, lest we court the kind of systemic negligence mentioned above, with civil courts handing down "punitive damages."
Commodity Units of Punishment
Because of the impossibility of literally matching offense and response, as well as because of limits in time and resources, we need to institute uniform responses to crime that make it possible to "dial in" a just match to any given offense.
The above classes of offense are based in philosophical principle and fixed, while within each class there is endless variation in misdeed. Because the misdeeds in each class are fundamentally commensurate, though, we have the possibility of commoditizing our responses, making them regular and even scalable to match a great variety of fundamentally similar offenses. The use of such units also allows us to objectively express the relative badness of one offense vs. another, making for sentencing open to audit, against guidelines that are open to review, clarification, and correction.
In civil reparations, we achieve commoditization of damages economically: most damages can be cleanly reduced to the monetary impact of the replacement value of items, the time value of lost use, the value of time away from work, the economic impact of reputation damage, the economic impact of a lost limb, etc. The troublesome aspects for restoration lie in physical pain, mutilation or death, psychological suffering, the loss of a unique object, and the like: these cannot be genuinely repaired with money or any object or action. Take pain and suffering, for example: at best, we might attempt to contrive a monetary valuation for psychological suffering by rough, subjective scaling of pay for an extraordinarily unpleasant job. But the trouble is most clear in the case of physical pain: trying to find the market value for the experience of letting someone, say, break one's arm is right out. This is quite unfortunate, because it means a victim of such damage cannot be made whole in principle. In such cases there is simply no justice to be had -- and this would be morally intolerable if it were not due to a metaphysically-given fact.
In criminal punishment, our system commoditizes moral agency curtailment via limitations on liberty (incarceration) and takings of property (fines or confiscations). Each component can be scaled and combined with the other in practically endless ways to punish much of what makes up criminal activity. Even psychological suffering can be captured by such losses. But just as we cannot repair the infliction of physical pain in civil cases with any action or object, we cannot genuinely punish the infliction of physical pain via incarceration or fines. These are simply not commensurable. And while there was a metaphysically-given fact standing in the way of civil reparations for such damage, there is no such fact standing in the way of criminal punishments for inflicting such damage.
To genuinely punish the intentional infliction of physical pain, we would need a uniform, scalable imposition of physical pain by some means (ideally one that could deliver a controlled degree and amount with no physical damage whatever, thus leaving all other elements of the crime to be matched as needed by a mix of incarceration, fines, and so on). While perhaps distasteful, this seems to be the only kind of unit which is actually commensurable with the sometimes substantial physical suffering intentionally inflicted in cases involving torture, beating, rape, and so on. In having such a unit of punishment available to match those (and of course only those) commensurate aspects of a crime, the justice system would no longer be driven by its current inability to actually punish, say, a heinous rape of a child, into seizing upon "some" (i.e., the only available) "greater punishment" than even life behind bars. Such a category leap into capital punishment for even a particularly horrible but 'merely' criminal offense is in fact unjust. Responses like that corrode the absolute, principled lines of the justice system to invite ever more arbitrary actions and corrosion -- precisely what must be avoided in a proper government's response to crime. (Note that, just as in capital punishment, such corporal punishment is impossible to repair, so the epistemological oversight must be likewise heightened to prevent systemic negligence.)
In capital punishment, our system achieves commoditization by ostensibly employing a small, uniform set of (relatively) quick and painless procedures for execution. (Note that there is no need for a scalable unit of capital punishment because existence vs. nonexistence is binary.) And on the account here, it is a good trend to seek to standardize on the most quick and painless method(s) of execution -- including bringing as little gore and psychological damage to the witnesses and executioners as is possible. While methods of execution that are purposely torturous and gory in varying ways and degrees have been used throughout history, this would again be a case of needlessly mixing in aspects of punishment which should be assessed and treated independently, in the criminal supercategory. For example, a heinous torture-murder should be decomposed into the judgment and response to the torture, and the judgment and response to the killing, each by the applicable standards -- and this would result in an overall punishment that is properly distinguished from the punishment for a 'mere' murder.
Toward Principled Punishment
I have argued here that we should seek principled lines in identifying and classifying misdeeds, to systemically encourage justice and discourage injustice in our potential responses. And while perhaps distasteful, this means that we should ensure that our justice system has available all of the needed kinds of units of punishment, as in the cases of corporal and capital punishment. This is not only to allow the possibility of genuine justice in punishment, but also so frustration at the systemic prevention of justice caused by any such gaps will not drive people to seek "justice" by violating the principled lines we must observe to maintain the objectivity of our system. That kind of corrosion in particular has to be avoided, lest we spiral ever further into the arbitrariness which has characterized so much of mankind's approach to punishment.
By Greg Perkins @ 1:00 AM
Here is a fascinating 30-minute lecture by Regent University law professor James Duane about the 5th amendment. He is speaking to law students, explaining why he uniformly advises his clients (and everyone) that they should they never, ever, under any circumstances, talk with the police -- guilty or innocent, a suspect or not, even if they are smarter than Aristotle and Newton combined, articulate as all get out, an expert in the law, and pure as the wind-driven snow. Never.
He explains how talking to the police can't ever help, and will in all likelihood hurt even innocents. This last is the part that really stood out: even the most innocuous statements by the most innocent of people could put them in jeopardy -- it depends on context they don't control. An officer misremembering an answer could bring a conviction; so could misremembering the question. Taping interviews is no guarantee, either: even some fuzziness in the contextual information that floated by before the interview could be disasterous!
His examples are striking. "I don't know who killed Joe. Of course I didn't shoot him: I don't even own a gun -- heck, I haven't ever touched a gun in my life!" Suppose that's all perfectly true. What could possibly be incriminating about sharing that? Well, just consider an officer on the stand responding with "I never mentioned anything about a gun." Toast.
But wait, there's more! It isn't just you or officers who might make a mistake that hangs you, but anybody with whom the police might come in contact. (See the video. Oh, and here is the second half with the other fellow.)
Quite an argument for improved epistemological hygiene in our legal system -- and for very careful engagement with it. While exercising 5th amendment rights is widely associated with guilt, Duane explains that it wasn't designed for that -- it is for protecting innocent people in epistemologically perilous circumstances.
By Paul Hsieh @ 4:53 PM
Chicago police officer Keith Herrera (and FBI informant) has reportedly described some extremely shocking and disturbing behavior amongst members of the elite Special Operations Section of the Chicago Police Department.
For instance, these officers lied in official police reports to frame suspects for wrongs they did not actually commit:
As an example, Herrera said, a drug suspect might be listed in a report as refusing to surrender his gun even if he had dropped the weapon.
..."Creative writing was a certain term that bosses used to make sure that the job got done," Herrera, referring to fabrications on police reports...
Nor was this just the action of a few rogue officers. Officer Herrera reports that this was a policy explicitly sanctioned and encouraged by his superiors on the squad:
"I didn't just pick up a pen and just learn how to (lie). Bosses, guys that I work with who were older than I was... It's taught to you."
Even worse, some officers on that squad committed crimes themselves, including stealing and plotting murder against fellow police officers:
Herrera said he began stealing from people he arrested but decided to go to the FBI after the group's leader proposed killing two colleagues who were threatening to testify against him.
He said the ring leader, who has been charged with plotting a murder for hire, told him in a conversation he recorded for the FBI that there would be a "paint job" and if it was done right "we'd never have to paint again."
Herrerra blames this atrocious behaviour on the so-called "war on drugs":
Keith Herrera told CBS' "60 Minutes" that pressure to get drug dealers and their guns off the streets led first to cutting corners and then to crime.
If Herrera's accusations are correct, there are a couple of deeply disturbing implications.
1) When the government stops protecting individual rights and instead prohibits activities that should be legal (such as selling drugs), it creates an atmosphere ripe for police corruption. We saw that in the early 20th century during the era of alcohol Prohibition, and we are seeing it in the current "war on drugs".
(Just to be clear, I believe that selling, purchasing, and consuming drugs like heroin and crack cocaine is both irrational and immoral, but should not be illegal.)
2) Without a clear set of objective principles to guide the actions of law enforcement agents, they can quickly become agents to the whims of their political superiors, first "cutting corners" and later committing actual crimes.
If a culture of unprincipled pragmatism and unthinking obedience to superiors becomes widespread in the law enforcement community, then this becomes extremely dangerous. In particular, it creates a ready training ground for thugs willing to enforce the wishes of any future dictatorship. This is the end result when law enforcement agencies are not guided by the proper principles, such as respect for individual rights and the rule of objective law.
Under a proper system of government, law enforcement agencies will be guided by the following principle as articulated by Ayn Rand:
...[A] government holds a monopoly on the legal use of physical force. It has to hold such a monopoly, since it is the agent of restraining and combating the use of force; and for that very same reason, its actions have to be rigidly defined, delimited and circumscribed; no touch of whim or caprice should be permitted in its performance; it should be an impersonal robot, with the laws as its only motive power. If a society is to be free, its government has to be controlled. ("The Nature of Government", The Virtue of Selfishness)
Hence, if these officers are indeed guilty of the alleged crimes, I hope they meet the same impartial, objective justice that all criminals deserve.
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