As Emperor Misha is fond of saying, I really don't have anything to add to what Kender over at Kender's Musings said about socialists right here. As someone once told me, "Yeah, what he said, in triplicate." I will never understand why a failed ideology that has brough about the deaths of over 100 million people since its inception worldwide still has such a cult following, but what I do know is that I will fight it at every turn with every fiber of my being. Read it all, and enjoy every minute of it...I know I did.
An Open Letter to Socialists
"I will keep this short and sweet.
I despise you.
Let's not mince words.
You disgust me.
Socialism takes away the greatness of the human spirit. Without the possibility of abject failure the possibility of true success cannot be possible.
Imagine a ladder. Imagine a wall that stretches for infinity and has ladders all along it.
In your system the ladders are ten feet tall, at a 45 degree angle and bolted to a wall and there are cushions beneath it. All but the most inept creatures make it up their ladder, to mingle with all of the others that have made it up their ladder.
Where is the glory? Where are the people that have conquered adversity to rise up and shine as an example for the rest of us?
In your system, they simply don't exist.
Now imagine that wall is now higher than you can see. It disappears into the clouds, and lining it are ladders leaning up close to the wall, not bolted on, and there are no cushions below to break your fall. Once you start climbing the ladder you find that every so often there is a level place where you can step off and stay if you wish. But you find that the higher you climb, the more enjoyable are the amenities.
Which ladder do you want to try to climb?
I want to climb that ladder into the clouds. Oh sure, I know I may fall, but the rewards are greater the higher I climb. I don't want to climb the little ladder and be mingling with the people that also made it up that ladder. Where is the glory in that?
Where is the greatness of the human spirit?
You folks that believe we should have a more equal outcome, and that life isn't fair, want to set up the system to give everyone short ladders on an easy climb.
And that is because you are cowards.
You are so scared of actually failing that you want to live in a system that takes away the possibility of failure, and to hide that cowardice you hide your intentions in alleged goals of "helping our fellow man."
Help them do what? Be mediocre? Be run of the mill? Help them be just like everyone else? Help them be cowardly like you?
You socialists are so craven that you cringe at the thought of anyone actually succeeding, and hide behind platitudes and feel good language all the while hoping that nobody realizes what weak creatures you really are, and you sit around with a smug air of superiority that deep down you know is a hypocritical lie, and you grow to hate yourselves for it.
I am ashamed to share a planet with you.
I am ashamed to share DNA with you.
To those of you in the U.S. I am doubly ashamed to share a country with you. Move to France.
I am ashamed that there are humans so scared of life, so terrified of actually being a human and failing, that you advocate a system to make failure the only possible outcome for all. I just wish you knew what it felt like to be ashamed, but you have no more shame. Your fear has overcome all of your other emotions, and you are leading us down a path that is going to make humanity much duller, less colorful and simply pointless.
Thanks for that.
Now hang your head and cry."
Thursday, August 23, 2007
Tuesday, August 21, 2007
Informed Opinions and Decisions
This post is one of the reasons I so enjoy reading a deep, thoughtful post by Mrs. DuToit. Quite simply, she breaks it down chapter and verse where almost anyone can understand it...you know, Forrest Gump style. In this case, she calls out in devastating fashion the childish behavior of anyone of any political or ideological stripe who engages in name-calling, fact-absent arguing, or relying on someone who has no knowledge of the subject matter about which they speak as an "authority" (i.e. Holly-weirdos thinking they should be in charge of foreign policy because they saw a starving kid from Africa on a TV once). I don't mind debating someone who may have a different opinion than I do, especially if they have insight, facts, or experience that I may not. That said, the ultimate decision of what facts to put stock in, what decisions to make, and what goals to pursue on the basis of those things stays with me even after the debate is done. I respect other folks' right to disagree, to be wrong, and to believe in what they believe, and I expect the same in return. Where that respect ends, however, is generally right around the place the other person's hand reaches into my family's pocketbook to support ideas with which I do not agree, and it only increases when the motivation for that money grab is based on dubious fact (i.e. glow-bull warming). Anyhow, read the whole thing...it's good stuff.
"Informed Opinion"
"Kim recently had a post on opinions, appropriately titled, Opinions. That post focused on the difference between personal tastes/preferences and fact-based opinions.
I want to expand on that a bit, because it appears to me that there are some folks who didn’t have this explained to them.
There is nothing wrong with having tastes and preferences, in fact, it should be encouraged. Developing preferences falls into the category of having a discriminating palate, as opposed to an ignorant palate. Experience leads to preferences and away from ignorance. If you’ve tried 50 different types of cheese you will broaden your palate. You might decide you prefer harder cheeses, or goat cheese, and then expand your experience within that category, but it is all part of the process of broadening your horizons. You might discover you don’t like cheese at all, or certain types of cheese (and that’s fine, too). The end result will be a honing of your preferences so you’ll end up narrowing your selection of categories, and narrow further the categories within.
This is not unlike the academic model. The purpose of grammar school is to provide the student with generalist knowledge. In college, the breadth of knowledge does not increase. The depth of knowledge does. An undergraduate degree is still very much like grammar school, to provide general knowledge of a wide variety of subjects. High school and college provides a greater depth of general knowledge, with only a little specialization by selecting a “major.” Graduate degrees are all about specialization and focus. You study one thing, and study one particular aspect of that thing in more detail. The purpose of graduate degrees is specialization, not to gain a breadth of knowledge. You learn more and more about less and less.
That doesn’t mean that learning stops and should focus only on specialty. It simply means that your formal general education is over and you are now the captain of your general education ship. If someone chooses to focus only on their specialty, that’s fine. That is their choice, too.
What seems to have been lost in this general education road, that all of us were put on when we were children, is the concept of an informed opinion. On some issues (as I illustrated above with personal tastes and preferences) the basis of the opinion is in your own head, and no one should challenge you for citations and sources for opinions in that arena. There are no citations outside of your head and taste buds for taste/preference based opinions.
It is when we stray outside of personal taste and preferences that informed, fact-based decisions come into play. To be blunt, it is what differentiates adults from children. Children have very little real knowledge--of facts and details, and few life experiences that enable adults to form reasonable judgments more quickly. They know they like Chuckee Cheese and stuffed animals, but they don’t have knowledge (or research abilities) sufficient to come to sound conclusions much beyond that. That’s why children are not given the right to vote or the full rights and privileges of adults. They are too easily swayed by fast talkers and snake oil salesmen.
One of the ways I deal with this is that I am adamantly opposed to children making promises or commitments that extend into adulthood. I do not believe it is appropriate, for example, for children to say the pledge of allegiance. They have no idea what the words mean, or what they are pledging, and until they do, I do not believe they should recite empty words and make false promises. What I want my children to know is that their promises must be kept and their commitments more so. I can’t tell them that and expect them to believe me, when I simultaneously encourage them to commit to things they don’t fully understand. Similarly, the fact-based opinions of children are going to tend to be less stable, as more information will come available to them, their opinions will be changed as a result. At least we HOPE so, as that is the goal of education and experience.
Making an informed decision requires that we are informed on the topic. [Yeah, I know, DUH!]
Being informed however, doesn’t mean that someone else informs you and you take what they say at face value, without verifying it. You might have experience with that person to trust their judgment, in a certain area, but on issues of public policy (or on voting, for instance) you have to do some homework. The news media is not a reliable source of information. It may have been better at some point in the past, but even then it wasn’t 100% reliable. A celebrity might know a great deal about acting or movie making, but what experience or specialty knowledge do they possess with International Affairs, Climate, or our rights as articulated in the Constitution? Unless they can be shown to have some expertise and knowledge of those subjects, they are not reliable sources for anything out of their area of expertise. Quoting what a celebrity says, who is not a universally accepted expert in the subject under discussion, is referred to as “an appeal to authority.” The person must demonstrate they are qualified to speak on a subject before what they say has any value.
On something like car repairs, I can go to people I trust and have expertise. That MIGHT be my mechanic. It might not be.
An informed opinion must be based on verifiable facts. The key word here is verifiable. Facts can be true or false, so facts alone aren’t enough.
I’ll illustrate:
It is my opinion that there is no evidence of man-made global warming. There might be global warming, or global cooling, or climate change, but it is my opinion that there is no evidence to suggest that man has anything to do with it. Therefore, I believe it would be inappropriate to take any actions or make public policies that inhibit what man may do in this arena. That doesn’t mean that global warming may not be occurring. Further, it would be appropriate to have plans/policies in place to deal with it, if it should create problems, but this does not include limiting any actions that are preventative in nature (trying to stop the trend). That would be foolish, because what we do has no impact on it at all.
The above is an informed opinion that has a public policy component.
In the statement of opinion above I used the words no evidence. Now some nincompoop is going to come along as say, Yes there is!! Here is a study that says blah blah blah. And since you said there was no evidence and I have just proven that there is, your entire opinion is false. Therefore, we get to tell man to lower his carbon footprint as sound public policy.
Evidence is not always factual. The fact that someone can pull a study out of their butt does not mean that the study is accurate. We have not yet determined if the facts are true or false simply by pulling papers out of the cabinet or pasting a link in a comment post on a blog. When someone includes in their opinion a statement such as there is no evidence to suggest, what they are stating is that there is no reliable evidence to suggest... I am perfectly aware, for example, that there are studies which suggest that man is influencing climate change. I have different studies and other facts which contradict those studies. That means that I have made a judgment. I have made a judgment about the reliability of those facts and have concluded that they are false.
Someone else can make a different determination on the reliability of the facts they have seen. If we can’t come to consensus on the reliability of the facts, then we can’t come to consensus on the soundness of our opinions. That’s OK, but we need to be aware of that.
You don’t argue with someone over their opinion, per se. You argue over the reliability of their facts, providing additional facts that contradict, or other information which demonstrates that their facts are faulty or false, and your facts are less faulty or true.
THAT is argument. Argument is not suggesting that someone is an idiot because they have formed an opinion you do not share. Argument is determining which facts they used to come to that conclusion and debating their reliability or validity. On what basis have you formed the opinion that this person is an idiot? Evidence please. Without evidence the opinion could be slander (if spoken) or libel (if written). And Free Speech does not cover slander or libel, so prepare to be sued in civil court for damages. There are consequences for stating opinions not based on reliable evidence.
If someone says, “because I say so” or “I have no facts. I just believe it” then no argument is possible. If they continue to hold the same fact-based opinion, when their facts have been shown to be false, then they are just being stubborn (and stupid). If there are no facts or there is no way to verify the facts, then NO ARGUMENT IS POSSIBLE. To continue to discuss it at that point isn’t argument. It is fighting. And only children or the willfully ignorant fight over silly things like that."
"Informed Opinion"
"Kim recently had a post on opinions, appropriately titled, Opinions. That post focused on the difference between personal tastes/preferences and fact-based opinions.
I want to expand on that a bit, because it appears to me that there are some folks who didn’t have this explained to them.
There is nothing wrong with having tastes and preferences, in fact, it should be encouraged. Developing preferences falls into the category of having a discriminating palate, as opposed to an ignorant palate. Experience leads to preferences and away from ignorance. If you’ve tried 50 different types of cheese you will broaden your palate. You might decide you prefer harder cheeses, or goat cheese, and then expand your experience within that category, but it is all part of the process of broadening your horizons. You might discover you don’t like cheese at all, or certain types of cheese (and that’s fine, too). The end result will be a honing of your preferences so you’ll end up narrowing your selection of categories, and narrow further the categories within.
This is not unlike the academic model. The purpose of grammar school is to provide the student with generalist knowledge. In college, the breadth of knowledge does not increase. The depth of knowledge does. An undergraduate degree is still very much like grammar school, to provide general knowledge of a wide variety of subjects. High school and college provides a greater depth of general knowledge, with only a little specialization by selecting a “major.” Graduate degrees are all about specialization and focus. You study one thing, and study one particular aspect of that thing in more detail. The purpose of graduate degrees is specialization, not to gain a breadth of knowledge. You learn more and more about less and less.
That doesn’t mean that learning stops and should focus only on specialty. It simply means that your formal general education is over and you are now the captain of your general education ship. If someone chooses to focus only on their specialty, that’s fine. That is their choice, too.
What seems to have been lost in this general education road, that all of us were put on when we were children, is the concept of an informed opinion. On some issues (as I illustrated above with personal tastes and preferences) the basis of the opinion is in your own head, and no one should challenge you for citations and sources for opinions in that arena. There are no citations outside of your head and taste buds for taste/preference based opinions.
It is when we stray outside of personal taste and preferences that informed, fact-based decisions come into play. To be blunt, it is what differentiates adults from children. Children have very little real knowledge--of facts and details, and few life experiences that enable adults to form reasonable judgments more quickly. They know they like Chuckee Cheese and stuffed animals, but they don’t have knowledge (or research abilities) sufficient to come to sound conclusions much beyond that. That’s why children are not given the right to vote or the full rights and privileges of adults. They are too easily swayed by fast talkers and snake oil salesmen.
One of the ways I deal with this is that I am adamantly opposed to children making promises or commitments that extend into adulthood. I do not believe it is appropriate, for example, for children to say the pledge of allegiance. They have no idea what the words mean, or what they are pledging, and until they do, I do not believe they should recite empty words and make false promises. What I want my children to know is that their promises must be kept and their commitments more so. I can’t tell them that and expect them to believe me, when I simultaneously encourage them to commit to things they don’t fully understand. Similarly, the fact-based opinions of children are going to tend to be less stable, as more information will come available to them, their opinions will be changed as a result. At least we HOPE so, as that is the goal of education and experience.
Making an informed decision requires that we are informed on the topic. [Yeah, I know, DUH!]
Being informed however, doesn’t mean that someone else informs you and you take what they say at face value, without verifying it. You might have experience with that person to trust their judgment, in a certain area, but on issues of public policy (or on voting, for instance) you have to do some homework. The news media is not a reliable source of information. It may have been better at some point in the past, but even then it wasn’t 100% reliable. A celebrity might know a great deal about acting or movie making, but what experience or specialty knowledge do they possess with International Affairs, Climate, or our rights as articulated in the Constitution? Unless they can be shown to have some expertise and knowledge of those subjects, they are not reliable sources for anything out of their area of expertise. Quoting what a celebrity says, who is not a universally accepted expert in the subject under discussion, is referred to as “an appeal to authority.” The person must demonstrate they are qualified to speak on a subject before what they say has any value.
On something like car repairs, I can go to people I trust and have expertise. That MIGHT be my mechanic. It might not be.
An informed opinion must be based on verifiable facts. The key word here is verifiable. Facts can be true or false, so facts alone aren’t enough.
I’ll illustrate:
It is my opinion that there is no evidence of man-made global warming. There might be global warming, or global cooling, or climate change, but it is my opinion that there is no evidence to suggest that man has anything to do with it. Therefore, I believe it would be inappropriate to take any actions or make public policies that inhibit what man may do in this arena. That doesn’t mean that global warming may not be occurring. Further, it would be appropriate to have plans/policies in place to deal with it, if it should create problems, but this does not include limiting any actions that are preventative in nature (trying to stop the trend). That would be foolish, because what we do has no impact on it at all.
The above is an informed opinion that has a public policy component.
In the statement of opinion above I used the words no evidence. Now some nincompoop is going to come along as say, Yes there is!! Here is a study that says blah blah blah. And since you said there was no evidence and I have just proven that there is, your entire opinion is false. Therefore, we get to tell man to lower his carbon footprint as sound public policy.
Evidence is not always factual. The fact that someone can pull a study out of their butt does not mean that the study is accurate. We have not yet determined if the facts are true or false simply by pulling papers out of the cabinet or pasting a link in a comment post on a blog. When someone includes in their opinion a statement such as there is no evidence to suggest, what they are stating is that there is no reliable evidence to suggest... I am perfectly aware, for example, that there are studies which suggest that man is influencing climate change. I have different studies and other facts which contradict those studies. That means that I have made a judgment. I have made a judgment about the reliability of those facts and have concluded that they are false.
Someone else can make a different determination on the reliability of the facts they have seen. If we can’t come to consensus on the reliability of the facts, then we can’t come to consensus on the soundness of our opinions. That’s OK, but we need to be aware of that.
You don’t argue with someone over their opinion, per se. You argue over the reliability of their facts, providing additional facts that contradict, or other information which demonstrates that their facts are faulty or false, and your facts are less faulty or true.
THAT is argument. Argument is not suggesting that someone is an idiot because they have formed an opinion you do not share. Argument is determining which facts they used to come to that conclusion and debating their reliability or validity. On what basis have you formed the opinion that this person is an idiot? Evidence please. Without evidence the opinion could be slander (if spoken) or libel (if written). And Free Speech does not cover slander or libel, so prepare to be sued in civil court for damages. There are consequences for stating opinions not based on reliable evidence.
If someone says, “because I say so” or “I have no facts. I just believe it” then no argument is possible. If they continue to hold the same fact-based opinion, when their facts have been shown to be false, then they are just being stubborn (and stupid). If there are no facts or there is no way to verify the facts, then NO ARGUMENT IS POSSIBLE. To continue to discuss it at that point isn’t argument. It is fighting. And only children or the willfully ignorant fight over silly things like that."
Monday, August 13, 2007
New Best Birthday Ever
Last year, I wrote that my birthday in 2006 was one of, if not the best birthdays ever. I got to see some of my best friends and had a rockin' good time for a whole weekend. Well, we got a new contender now...I give you Birthday, 2007!
My birthday is on August 10th, and Althea's is on August 12th, so I had a perfect excuse to make this an all weekend affair. Since I was first on deck, my best friend Mike came in from out of town with a couple of his friends. Despite some communications mix-ups along the way and decidedly sub par food at Red Lobster, Mike got to meet Althea and we had a lot of fun at the restaurant. Then I went back to my place to get ready, and I opened the door to find my entire living room full of presents from Althea, and a dozen of the nicest white roses I'd ever seen on the kitchen counter. It sounds corny, but no one had ever gotten me flowers, and I thought that was very sweet. Althea got me virtually an entire new summer wardrobe of clothes to wear, and they all fit right and matched well together. It was exactly what I needed. Still more surprisingly, we stopped back by Althea's place before heading out on the town for her to pick up a few more things, and I was surprised with still more presents and a very tasty cake...I must say, I felt like the man all night that night. After that, we got ready and went out on the town in downtown Nashville. Mike and his date were busy dancing the night away just as Althea and I were (and my girl can really move, man is she gorgeous...what another nice birthday surprise). We danced until the wee hours and then came home.
Since Sunday is a busy day for Althea and I, I decided to do her birthday stuff on Saturday the 11th, even though her actual birthday is on the 12th. We got up early and drove to Lewisburg so she could meet my Dad. We had a nice breakfast, and everything went well...I think she passed with flying colors and gained the old man's approval. Since I inherited my selectiveness from my Dad, that was no small feat she accomplished winning him over.
After that, I whisked her back to Brentwood for her first of two appointments. First, she spent three hours getting her hair done and receiving a facial. After that, I grabbed her a quick bite of lunch and dropped her off at her second appointment, where she got a deep massage, some hydrotherapy, and a manicure and pedicure. She told me she was floating in spoiled princess relaxation after that, so I think the mission was definitely accomplished there. After that, I told her she had to go home and get dressed nice, because we had one more surprise. I made us reservations at Ruth's Chris in downtown Nashville, and we had a great time. The food was amazing, the service was top-notch, and our waiter was hysterical...I could not have asked for a better dining experience. We took some pictures before dinner and throughout the evening, some of which may be coming to Myspace sometime soon. Then we went home and spent the rest of the night together (not that way you perverts, get your minds out of the gutter!).
The next day, we went to church in the morning, had lunch together, and then I played a kickball doubleheader, which we swept 10-4 and 5-2. All around, this was a weekend to remember, and I can only pray that all the birthdays we spend together in the future will be equal to or better than this one. :)
My birthday is on August 10th, and Althea's is on August 12th, so I had a perfect excuse to make this an all weekend affair. Since I was first on deck, my best friend Mike came in from out of town with a couple of his friends. Despite some communications mix-ups along the way and decidedly sub par food at Red Lobster, Mike got to meet Althea and we had a lot of fun at the restaurant. Then I went back to my place to get ready, and I opened the door to find my entire living room full of presents from Althea, and a dozen of the nicest white roses I'd ever seen on the kitchen counter. It sounds corny, but no one had ever gotten me flowers, and I thought that was very sweet. Althea got me virtually an entire new summer wardrobe of clothes to wear, and they all fit right and matched well together. It was exactly what I needed. Still more surprisingly, we stopped back by Althea's place before heading out on the town for her to pick up a few more things, and I was surprised with still more presents and a very tasty cake...I must say, I felt like the man all night that night. After that, we got ready and went out on the town in downtown Nashville. Mike and his date were busy dancing the night away just as Althea and I were (and my girl can really move, man is she gorgeous...what another nice birthday surprise). We danced until the wee hours and then came home.
Since Sunday is a busy day for Althea and I, I decided to do her birthday stuff on Saturday the 11th, even though her actual birthday is on the 12th. We got up early and drove to Lewisburg so she could meet my Dad. We had a nice breakfast, and everything went well...I think she passed with flying colors and gained the old man's approval. Since I inherited my selectiveness from my Dad, that was no small feat she accomplished winning him over.
After that, I whisked her back to Brentwood for her first of two appointments. First, she spent three hours getting her hair done and receiving a facial. After that, I grabbed her a quick bite of lunch and dropped her off at her second appointment, where she got a deep massage, some hydrotherapy, and a manicure and pedicure. She told me she was floating in spoiled princess relaxation after that, so I think the mission was definitely accomplished there. After that, I told her she had to go home and get dressed nice, because we had one more surprise. I made us reservations at Ruth's Chris in downtown Nashville, and we had a great time. The food was amazing, the service was top-notch, and our waiter was hysterical...I could not have asked for a better dining experience. We took some pictures before dinner and throughout the evening, some of which may be coming to Myspace sometime soon. Then we went home and spent the rest of the night together (not that way you perverts, get your minds out of the gutter!).
The next day, we went to church in the morning, had lunch together, and then I played a kickball doubleheader, which we swept 10-4 and 5-2. All around, this was a weekend to remember, and I can only pray that all the birthdays we spend together in the future will be equal to or better than this one. :)
Friday, August 3, 2007
This Joke Sounds Just Like my Grandmother...Too Funny :)
My brother sent me this joke, which I'd heard before and which does remind me a lot of what my late grandmother on my dad's side might say if she had been called to testify at a trial while she was still with us. It's even funnier to me now because I'm a lawyer myself, and because I deal with folks every day who might easily meet the description of the attorneys given by the little old lady here. I miss her and my grandfather both so much every single day. I think of them often, and can't wait to hug them again in heaven someday. Until then, this one's for you Granny.
"In a trial, a Southern small-town prosecuting attorney called his first witness, a grandmotherly, elderly woman to the stand.
He approached her and asked, "Mrs. Jones, do you know me?" She responded, "Why, yes, I do know you, Mr. Williams. I've known you since you were a young boy, and frankly, you've been a big disappointment to me. You lie, you cheat on your wife, and you
manipulate people and talk about them behind their backs. You think you're a big shot when you haven't the brains to realize you never will amount to anything more than a two-bit paper pusher. Yes, I know you."
The lawyer was stunned! Not knowing what else to do, he pointed across the room and asked, "Mrs. Jones, do you know the defense attorney?"
She again replied, "Why, yes, I do. I've known Mr. Bradley since he was a youngster, too. He's lazy, bigoted, and he has a drinking problem. He can't build a normal relationship with anyone and his law practice is one of the worst in the entire state. Not to mention he cheated on his wife with three different women. One of them was your wife. Yes, I know him."
The defense attorney almost died. The judge asked both counselors to approach the bench and, in a very quiet voice, said, "If either of you idiots asks her if she knows me, I'll send you to the electric chair."
"In a trial, a Southern small-town prosecuting attorney called his first witness, a grandmotherly, elderly woman to the stand.
He approached her and asked, "Mrs. Jones, do you know me?" She responded, "Why, yes, I do know you, Mr. Williams. I've known you since you were a young boy, and frankly, you've been a big disappointment to me. You lie, you cheat on your wife, and you
manipulate people and talk about them behind their backs. You think you're a big shot when you haven't the brains to realize you never will amount to anything more than a two-bit paper pusher. Yes, I know you."
The lawyer was stunned! Not knowing what else to do, he pointed across the room and asked, "Mrs. Jones, do you know the defense attorney?"
She again replied, "Why, yes, I do. I've known Mr. Bradley since he was a youngster, too. He's lazy, bigoted, and he has a drinking problem. He can't build a normal relationship with anyone and his law practice is one of the worst in the entire state. Not to mention he cheated on his wife with three different women. One of them was your wife. Yes, I know him."
The defense attorney almost died. The judge asked both counselors to approach the bench and, in a very quiet voice, said, "If either of you idiots asks her if she knows me, I'll send you to the electric chair."
Monday, July 30, 2007
Justice Scalia on Capital Punishment
I've always thought Justice Scalia a brilliant jurist with a sharp wit and a quick mind, and this article I came across recently did nothing to change my perception. I like how he takes great pains to distinguish his personal views, philosophy, and the history of the evolution of the death penalty as he sees these things completely separate from how he will vote on particular death penalty cases that come before the court. Perhaps my favorite point he makes is that judges are on the bench to enforce and interpret the law, not to impose upon it their own personal belief structure...would that more judges took the same approach.
God’s Justice and Ours
by Antonin Scalia
"Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court. That statement would not be true if I subscribed to the conventional fallacy that the Constitution is a “living document”-that is, a text that means from age to age whatever the society (or perhaps the Court) thinks it ought to mean.
In recent years, that philosophy has been particularly well enshrined in our Eighth Amendment jurisprudence, our case law dealing with the prohibition of “cruel and unusual punishments.” Several of our opinions have said that what falls within this prohibition is not static, but changes from generation to generation, to comport with “the evolving standards of decency that mark the progress of a maturing society.” Applying that principle, the Court came close, in 1972, to abolishing the death penalty entirely. It ultimately did not do so, but it has imposed, under color of the Constitution, procedural and substantive limitations that did not exist when the Eighth Amendment was adopted-and some of which had not even been adopted by a majority of the states at the time they were judicially decreed. For example, the Court has prohibited the death penalty for all crimes except murder, and indeed even for what might be called run-of-the-mill murders, as opposed to those that are somehow characterized by a high degree of brutality or depravity. It has prohibited the mandatory imposition of the death penalty for any crime, insisting that in all cases the jury be permitted to consider all mitigating factors and to impose, if it wishes, a lesser sentence. And it has imposed an age limit at the time of the offense (it is currently seventeen) that is well above what existed at common law.
If I subscribed to the proposition that I am authorized (indeed, I suppose compelled) to intuit and impose our “maturing” society’s “evolving standards of decency,” this essay would be a preview of my next vote in a death penalty case. As it is, however, the Constitution that I interpret and apply is not living but dead-or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted. For me, therefore, the constitutionality of the death penalty is not a difficult, soul-wrenching question. It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies-including, for example, horse-thieving, as anyone can verify by watching a western movie). And so it is clearly permitted today. There is plenty of room within this system for “evolving standards of decency,” but the instrument of evolution (or, if you are more tolerant of the Court’s approach, the herald that evolution has occurred) is not the nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the fifty states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish.
But while my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of “the machinery of death.” My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral.
Capital cases are much different from the other life-and-death issues that my Court sometimes faces: abortion, for example, or legalized suicide. There it is not the state (of which I am in a sense the last instrument) that is decreeing death, but rather private individuals whom the state has decided not to restrain. One may argue (as many do) that the society has a moral obligation to restrain. That moral obligation may weigh heavily upon the voter, and upon the legislator who enacts the laws; but a judge, I think, bears no moral guilt for the laws society has failed to enact. Thus, my difficulty with Roe v. Wade is a legal rather than a moral one: I do not believe (and, for two hundred years, no one believed) that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would-and could in good conscience-vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter.
With the death penalty, on the other hand, I am part of the criminal-law machinery that imposes death-which extends from the indictment, to the jury conviction, to rejection of the last appeal. I am aware of the ethical principle that one can give “material cooperation” to the immoral act of another when the evil that would attend failure to cooperate is even greater (for example, helping a burglar tie up a householder where the alternative is that the burglar would kill the householder). I doubt whether that doctrine is even applicable to the trial judges and jurors who must themselves determine that the death sentence will be imposed. It seems to me these individuals are not merely engaged in “material cooperation” with someone else’s action, but are themselves decreeing death on behalf of the state.
The same is true of appellate judges in those states where they are charged with “reweighing” the mitigating and aggravating factors and determining de novo whether the death penalty should be imposed: they are themselves decreeing death. Where (as is the case in the federal system) the appellate judge merely determines that the sentence pronounced by the trial court is in accordance with law, perhaps the principle of material cooperation could be applied. But as I have said, that principle demands that the good deriving from the cooperation exceed the evil which is assisted. I find it hard to see how any appellate judge could find this condition to be met, unless he believes retaining his seat on the bench (rather than resigning) is somehow essential to preservation of the society-which is of course absurd. (As Charles de Gaulle is reputed to have remarked when his aides told him he could not resign as President of France because he was the indispensable man: “Mon ami, the cemeteries are full of indispensable men.”)
I pause here to emphasize the point that in my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty-and if that fails, lead a revolution. But rewrite the laws he cannot do. This dilemma, of course, need not be confronted by a proponent of the “living Constitution,” who believes that it means what it ought to mean. If the death penalty is (in his view) immoral, then it is (hey, presto!) automatically unconstitutional, and he can continue to sit while nullifying a sanction that has been imposed, with no suggestion of its unconstitutionality, since the beginning of the Republic. (You can see why the “living Constitution” has such attraction for us judges.)
It is a matter of great consequence to me, therefore, whether the death penalty is morally acceptable. As a Roman Catholic-and being unable to jump out of my skin-I cannot discuss that issue without reference to Christian tradition and the Church’s Magisterium.
The death penalty is undoubtedly wrong unless one accords to the state a scope of moral action that goes beyond what is permitted to the individual. In my view, the major impetus behind modern aversion to the death penalty is the equation of private morality with governmental morality. This is a predictable (though I believe erroneous and regrettable) reaction to modern, democratic self-government.
Few doubted the morality of the death penalty in the age that believed in the divine right of kings. Or even in earlier times. St. Paul had this to say (I am quoting, as you might expect, the King James version):
Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake. (Romans 13:1-5)
This is not the Old Testament, I emphasize, but St. Paul. One can understand his words as referring only to lawfully constituted authority, or even only to lawfully constituted authority that rules justly. But the core of his message is that government-however you want to limit that concept-derives its moral authority from God. It is the “minister of God” with powers to “revenge,” to “execute wrath,” including even wrath by the sword (which is unmistakably a reference to the death penalty). Paul of course did not believe that the individual possessed any such powers. Only a few lines before this passage, he wrote, “Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.” And in this world the Lord repaid-did justice-through His minister, the state.
These passages from Romans represent the consensus of Western thought until very recent times. Not just of Christian or religious thought, but of secular thought regarding the powers of the state. That consensus has been upset, I think, by the emergence of democracy. It is easy to see the hand of the Almighty behind rulers whose forebears, in the dim mists of history, were supposedly anointed by God, or who at least obtained their thrones in awful and unpredictable battles whose outcome was determined by the Lord of Hosts, that is, the Lord of Armies. It is much more difficult to see the hand of God-or any higher moral authority-behind the fools and rogues (as the losers would have it) whom we ourselves elect to do our own will. How can their power to avenge-to vindicate the “public order”-be any greater than our own?
So it is no accident, I think, that the modern view that the death penalty is immoral is centered in the West. That has little to do with the fact that the West has a Christian tradition, and everything to do with the fact that the West is the home of democracy. Indeed, it seems to me that the more Christian a country is the less likely it is to regard the death penalty as immoral. Abolition has taken its firmest hold in post-Christian Europe, and has least support in the church-going United States. I attribute that to the fact that, for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next? The Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: “Friend, be not afraid of your office. You send me to God.” And when Cranmer asks whether he is sure of that, More replies, “He will not refuse one who is so blithe to go to Him.” For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence. What a horrible act!
Besides being less likely to regard death as an utterly cataclysmic punishment, the Christian is also more likely to regard punishment in general as deserved. The doctrine of free will-the ability of man to resist temptations to evil, which God will not permit beyond man’s capacity to resist-is central to the Christian doctrine of salvation and damnation, heaven and hell. The post-Freudian secularist, on the other hand, is more inclined to think that people are what their history and circumstances have made them, and there is little sense in assigning blame.
Of course those who deny the authority of a government to exact vengeance are not entirely logical. Many crimes-for example, domestic murder in the heat of passion-are neither deterred by punishment meted out to others nor likely to be committed a second time by the same offender. Yet opponents of capital punishment do not object to sending such an offender to prison, perhaps for life. Because he deserves punishment. Because it is just.
The mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals has adverse effects in other areas as well. It fosters civil disobedience, for example, which proceeds on the assumption that what the individual citizen considers an unjust law-even if it does not compel him to act unjustly-need not be obeyed. St. Paul would not agree. “Ye must needs be subject,” he said, “not only for wrath, but also for conscience sake.” For conscience sake. The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible. We have done that in this country (and continental Europe has not) by preserving in our public life many visible reminders that-in the words of a Supreme Court opinion from the 1940s-“we are a religious people, whose institutions presuppose a Supreme Being.” These reminders include: “In God we trust” on our coins, “one nation, under God” in our Pledge of Allegiance, the opening of sessions of our legislatures with a prayer, the opening of sessions of my Court with “God save the United States and this Honorable Court,” annual Thanksgiving proclamations issued by our President at the direction of Congress, and constant invocations of divine support in the speeches of our political leaders, which often conclude, “God bless America.” All this, as I say, is most un-European, and helps explain why our people are more inclined to understand, as St. Paul did, that government carries the sword as “the minister of God,” to “execute wrath” upon the evildoer.
A brief story about the aftermath of September 11 nicely illustrates how different things are in secularized Europe. I was at a conference of European and American lawyers and jurists in Rome when the planes struck the twin towers. All in attendance were transfixed by the horror of the event, and listened with rapt attention to the President’s ensuing address to the nation. When the speech had concluded, one of the European conferees-a religious man-confided in me how jealous he was that the leader of my nation could conclude his address with the words “God bless the United States.” Such invocation of the deity, he assured me, was absolutely unthinkable in his country, with its Napoleonic tradition of extirpating religion from public life.
It will come as no surprise from what I have said that I do not agree with the encyclical Evangelium Vitae and the new Catholic catechism (or the very latest version of the new Catholic catechism), according to which the death penalty can only be imposed to protect rather than avenge, and that since it is (in most modern societies) not necessary for the former purpose, it is wrong. That, by the way, is how I read those documents-and not, as Avery Cardinal Dulles would read them, simply as an affirmation of two millennia of Christian teaching that retribution is a proper purpose (indeed, the principal purpose) of criminal punishment, but merely adding the “prudential judgment” that in modern circumstances condign retribution “rarely if ever” justifies death. (See “Catholicism & Capital Punishment,” FT, April 2001.) I cannot square that interpretation with the following passage from the encyclical:
It is clear that, for these [permissible purposes of penal justice] to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today, however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically nonexistent. (Emphases deleted and added.)
It is true enough that the paragraph of the encyclical that precedes this passage acknowledges (in accord with traditional Catholic teaching) that “the primary purpose of the punishment which society inflicts is ‘to redress the disorder caused by the offense’” by “imposing on the offender an adequate punishment for the crime.” But it seems to me quite impossible to interpret the later passage’s phrase “when it would not be possible otherwise to defend society” as including “defense” through the redress of disorder achieved by adequate punishment. Not only does the word “defense” not readily lend itself to that strange interpretation, but the immediately following explanation of why, in modern times, “defense” rarely if ever requires capital punishment has no bearing whatever upon the adequacy of retribution. In fact, one might say that it has an inverse bearing.
How in the world can modernity’s “steady improvements in the organization of the penal system” render the death penalty less condign for a particularly heinous crime? One might think that commitment to a really horrible penal system (Devil’s Island, for example) might be almost as bad as death. But nice clean cells with television sets, exercise rooms, meals designed by nutritionists, and conjugal visits? That would seem to render the death penalty more, rather than less, necessary. So also would the greatly increased capacity for evil-the greatly increased power to produce moral “disorder”-placed in individual hands by modern technology. Could St. Paul or St. Thomas even have envisioned a crime by an individual (as opposed to one by a ruler, such as Herod’s slaughter of the innocents) as enormous as that of Timothy McVeigh or of the men who destroyed three thousand innocents in the World Trade Center? If just retribution is a legitimate purpose (indeed, the principal legitimate purpose) of capital punishment, can one possibly say with a straight face that nowadays death would “rarely if ever” be appropriate?
So I take the encyclical and the latest, hot-off-the-presses version of the catechism (a supposed encapsulation of the “deposit” of faith and the Church’s teaching regarding a moral order that does not change) to mean that retribution is not a valid purpose of capital punishment. Unlike such other hard Catholic doctrines as the prohibition of birth control and of abortion, this is not a moral position that the Church has always-or indeed ever before-maintained. There have been Christian opponents of the death penalty, just as there have been Christian pacifists, but neither of those positions has ever been that of the Church. The current predominance of opposition to the death penalty is the legacy of Napoleon, Hegel, and Freud rather than St. Paul and St. Augustine. I mentioned earlier Thomas More, who has long been regarded in this country as the patron saint of lawyers, and who has recently been declared by the Vatican the patron saint of politicians (I am not sure that is a promotion). One of the charges leveled by that canonized saint’s detractors was that, as Lord Chancellor, he was too quick to impose the death penalty.
I am therefore happy to learn from the canonical experts I have consulted that the position set forth in Evangelium Vitae and in the latest version of the Catholic catechism does not purport to be binding teaching-that is, it need not be accepted by practicing Catholics, though they must give it thoughtful and respectful consideration. It would be remarkable to think otherwise-that a couple of paragraphs in an encyclical almost entirely devoted not to crime and punishment but to abortion and euthanasia was intended authoritatively to sweep aside (if one could) two thousand years of Christian teaching.
So I have given this new position thoughtful and careful consideration-and I disagree. That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign. And I am happy because I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty (most of them would not be elected); if American Catholics running for Governor had to promise commutation of all death sentences (most of them would never reach the Governor’s mansion); if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty; or if American Catholics were subject to recusal when called for jury duty in capital cases.
I find it ironic that the Church’s new (albeit nonbinding) position on the death penalty-which, if accepted, would have these disastrous consequences-is said to rest upon “prudential considerations.” Is it prudent, when one is not certain enough about the point to proclaim it in a binding manner (and with good reason, given the long and consistent Christian tradition to the contrary), to effectively urge the retirement of Catholics from public life in a country where the federal government and thirty-eight of the states (comprising about 85 percent of the population) believe the death penalty is sometimes just and appropriate? Is it prudent to imperil acceptance of the Church’s hard but traditional teachings on birth control and abortion and euthanasia (teachings that have been proclaimed in a binding manner, a distinction that the average Catholic layman is unlikely to grasp) by packaging them-under the wrapper “respect for life”-with another uncongenial doctrine that everyone knows does not represent the traditional Christian view? Perhaps, one is invited to conclude, all four of them are recently made-up. We need some new staffers at the Congregation of Prudence in the Vatican. At least the new doctrine should have been urged only upon secular Europe, where it is at home."
God’s Justice and Ours
by Antonin Scalia
"Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court. That statement would not be true if I subscribed to the conventional fallacy that the Constitution is a “living document”-that is, a text that means from age to age whatever the society (or perhaps the Court) thinks it ought to mean.
In recent years, that philosophy has been particularly well enshrined in our Eighth Amendment jurisprudence, our case law dealing with the prohibition of “cruel and unusual punishments.” Several of our opinions have said that what falls within this prohibition is not static, but changes from generation to generation, to comport with “the evolving standards of decency that mark the progress of a maturing society.” Applying that principle, the Court came close, in 1972, to abolishing the death penalty entirely. It ultimately did not do so, but it has imposed, under color of the Constitution, procedural and substantive limitations that did not exist when the Eighth Amendment was adopted-and some of which had not even been adopted by a majority of the states at the time they were judicially decreed. For example, the Court has prohibited the death penalty for all crimes except murder, and indeed even for what might be called run-of-the-mill murders, as opposed to those that are somehow characterized by a high degree of brutality or depravity. It has prohibited the mandatory imposition of the death penalty for any crime, insisting that in all cases the jury be permitted to consider all mitigating factors and to impose, if it wishes, a lesser sentence. And it has imposed an age limit at the time of the offense (it is currently seventeen) that is well above what existed at common law.
If I subscribed to the proposition that I am authorized (indeed, I suppose compelled) to intuit and impose our “maturing” society’s “evolving standards of decency,” this essay would be a preview of my next vote in a death penalty case. As it is, however, the Constitution that I interpret and apply is not living but dead-or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted. For me, therefore, the constitutionality of the death penalty is not a difficult, soul-wrenching question. It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies-including, for example, horse-thieving, as anyone can verify by watching a western movie). And so it is clearly permitted today. There is plenty of room within this system for “evolving standards of decency,” but the instrument of evolution (or, if you are more tolerant of the Court’s approach, the herald that evolution has occurred) is not the nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the fifty states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish.
But while my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of “the machinery of death.” My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral.
Capital cases are much different from the other life-and-death issues that my Court sometimes faces: abortion, for example, or legalized suicide. There it is not the state (of which I am in a sense the last instrument) that is decreeing death, but rather private individuals whom the state has decided not to restrain. One may argue (as many do) that the society has a moral obligation to restrain. That moral obligation may weigh heavily upon the voter, and upon the legislator who enacts the laws; but a judge, I think, bears no moral guilt for the laws society has failed to enact. Thus, my difficulty with Roe v. Wade is a legal rather than a moral one: I do not believe (and, for two hundred years, no one believed) that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would-and could in good conscience-vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter.
With the death penalty, on the other hand, I am part of the criminal-law machinery that imposes death-which extends from the indictment, to the jury conviction, to rejection of the last appeal. I am aware of the ethical principle that one can give “material cooperation” to the immoral act of another when the evil that would attend failure to cooperate is even greater (for example, helping a burglar tie up a householder where the alternative is that the burglar would kill the householder). I doubt whether that doctrine is even applicable to the trial judges and jurors who must themselves determine that the death sentence will be imposed. It seems to me these individuals are not merely engaged in “material cooperation” with someone else’s action, but are themselves decreeing death on behalf of the state.
The same is true of appellate judges in those states where they are charged with “reweighing” the mitigating and aggravating factors and determining de novo whether the death penalty should be imposed: they are themselves decreeing death. Where (as is the case in the federal system) the appellate judge merely determines that the sentence pronounced by the trial court is in accordance with law, perhaps the principle of material cooperation could be applied. But as I have said, that principle demands that the good deriving from the cooperation exceed the evil which is assisted. I find it hard to see how any appellate judge could find this condition to be met, unless he believes retaining his seat on the bench (rather than resigning) is somehow essential to preservation of the society-which is of course absurd. (As Charles de Gaulle is reputed to have remarked when his aides told him he could not resign as President of France because he was the indispensable man: “Mon ami, the cemeteries are full of indispensable men.”)
I pause here to emphasize the point that in my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty-and if that fails, lead a revolution. But rewrite the laws he cannot do. This dilemma, of course, need not be confronted by a proponent of the “living Constitution,” who believes that it means what it ought to mean. If the death penalty is (in his view) immoral, then it is (hey, presto!) automatically unconstitutional, and he can continue to sit while nullifying a sanction that has been imposed, with no suggestion of its unconstitutionality, since the beginning of the Republic. (You can see why the “living Constitution” has such attraction for us judges.)
It is a matter of great consequence to me, therefore, whether the death penalty is morally acceptable. As a Roman Catholic-and being unable to jump out of my skin-I cannot discuss that issue without reference to Christian tradition and the Church’s Magisterium.
The death penalty is undoubtedly wrong unless one accords to the state a scope of moral action that goes beyond what is permitted to the individual. In my view, the major impetus behind modern aversion to the death penalty is the equation of private morality with governmental morality. This is a predictable (though I believe erroneous and regrettable) reaction to modern, democratic self-government.
Few doubted the morality of the death penalty in the age that believed in the divine right of kings. Or even in earlier times. St. Paul had this to say (I am quoting, as you might expect, the King James version):
Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake. (Romans 13:1-5)
This is not the Old Testament, I emphasize, but St. Paul. One can understand his words as referring only to lawfully constituted authority, or even only to lawfully constituted authority that rules justly. But the core of his message is that government-however you want to limit that concept-derives its moral authority from God. It is the “minister of God” with powers to “revenge,” to “execute wrath,” including even wrath by the sword (which is unmistakably a reference to the death penalty). Paul of course did not believe that the individual possessed any such powers. Only a few lines before this passage, he wrote, “Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.” And in this world the Lord repaid-did justice-through His minister, the state.
These passages from Romans represent the consensus of Western thought until very recent times. Not just of Christian or religious thought, but of secular thought regarding the powers of the state. That consensus has been upset, I think, by the emergence of democracy. It is easy to see the hand of the Almighty behind rulers whose forebears, in the dim mists of history, were supposedly anointed by God, or who at least obtained their thrones in awful and unpredictable battles whose outcome was determined by the Lord of Hosts, that is, the Lord of Armies. It is much more difficult to see the hand of God-or any higher moral authority-behind the fools and rogues (as the losers would have it) whom we ourselves elect to do our own will. How can their power to avenge-to vindicate the “public order”-be any greater than our own?
So it is no accident, I think, that the modern view that the death penalty is immoral is centered in the West. That has little to do with the fact that the West has a Christian tradition, and everything to do with the fact that the West is the home of democracy. Indeed, it seems to me that the more Christian a country is the less likely it is to regard the death penalty as immoral. Abolition has taken its firmest hold in post-Christian Europe, and has least support in the church-going United States. I attribute that to the fact that, for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next? The Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: “Friend, be not afraid of your office. You send me to God.” And when Cranmer asks whether he is sure of that, More replies, “He will not refuse one who is so blithe to go to Him.” For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence. What a horrible act!
Besides being less likely to regard death as an utterly cataclysmic punishment, the Christian is also more likely to regard punishment in general as deserved. The doctrine of free will-the ability of man to resist temptations to evil, which God will not permit beyond man’s capacity to resist-is central to the Christian doctrine of salvation and damnation, heaven and hell. The post-Freudian secularist, on the other hand, is more inclined to think that people are what their history and circumstances have made them, and there is little sense in assigning blame.
Of course those who deny the authority of a government to exact vengeance are not entirely logical. Many crimes-for example, domestic murder in the heat of passion-are neither deterred by punishment meted out to others nor likely to be committed a second time by the same offender. Yet opponents of capital punishment do not object to sending such an offender to prison, perhaps for life. Because he deserves punishment. Because it is just.
The mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals has adverse effects in other areas as well. It fosters civil disobedience, for example, which proceeds on the assumption that what the individual citizen considers an unjust law-even if it does not compel him to act unjustly-need not be obeyed. St. Paul would not agree. “Ye must needs be subject,” he said, “not only for wrath, but also for conscience sake.” For conscience sake. The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible. We have done that in this country (and continental Europe has not) by preserving in our public life many visible reminders that-in the words of a Supreme Court opinion from the 1940s-“we are a religious people, whose institutions presuppose a Supreme Being.” These reminders include: “In God we trust” on our coins, “one nation, under God” in our Pledge of Allegiance, the opening of sessions of our legislatures with a prayer, the opening of sessions of my Court with “God save the United States and this Honorable Court,” annual Thanksgiving proclamations issued by our President at the direction of Congress, and constant invocations of divine support in the speeches of our political leaders, which often conclude, “God bless America.” All this, as I say, is most un-European, and helps explain why our people are more inclined to understand, as St. Paul did, that government carries the sword as “the minister of God,” to “execute wrath” upon the evildoer.
A brief story about the aftermath of September 11 nicely illustrates how different things are in secularized Europe. I was at a conference of European and American lawyers and jurists in Rome when the planes struck the twin towers. All in attendance were transfixed by the horror of the event, and listened with rapt attention to the President’s ensuing address to the nation. When the speech had concluded, one of the European conferees-a religious man-confided in me how jealous he was that the leader of my nation could conclude his address with the words “God bless the United States.” Such invocation of the deity, he assured me, was absolutely unthinkable in his country, with its Napoleonic tradition of extirpating religion from public life.
It will come as no surprise from what I have said that I do not agree with the encyclical Evangelium Vitae and the new Catholic catechism (or the very latest version of the new Catholic catechism), according to which the death penalty can only be imposed to protect rather than avenge, and that since it is (in most modern societies) not necessary for the former purpose, it is wrong. That, by the way, is how I read those documents-and not, as Avery Cardinal Dulles would read them, simply as an affirmation of two millennia of Christian teaching that retribution is a proper purpose (indeed, the principal purpose) of criminal punishment, but merely adding the “prudential judgment” that in modern circumstances condign retribution “rarely if ever” justifies death. (See “Catholicism & Capital Punishment,” FT, April 2001.) I cannot square that interpretation with the following passage from the encyclical:
It is clear that, for these [permissible purposes of penal justice] to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today, however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically nonexistent. (Emphases deleted and added.)
It is true enough that the paragraph of the encyclical that precedes this passage acknowledges (in accord with traditional Catholic teaching) that “the primary purpose of the punishment which society inflicts is ‘to redress the disorder caused by the offense’” by “imposing on the offender an adequate punishment for the crime.” But it seems to me quite impossible to interpret the later passage’s phrase “when it would not be possible otherwise to defend society” as including “defense” through the redress of disorder achieved by adequate punishment. Not only does the word “defense” not readily lend itself to that strange interpretation, but the immediately following explanation of why, in modern times, “defense” rarely if ever requires capital punishment has no bearing whatever upon the adequacy of retribution. In fact, one might say that it has an inverse bearing.
How in the world can modernity’s “steady improvements in the organization of the penal system” render the death penalty less condign for a particularly heinous crime? One might think that commitment to a really horrible penal system (Devil’s Island, for example) might be almost as bad as death. But nice clean cells with television sets, exercise rooms, meals designed by nutritionists, and conjugal visits? That would seem to render the death penalty more, rather than less, necessary. So also would the greatly increased capacity for evil-the greatly increased power to produce moral “disorder”-placed in individual hands by modern technology. Could St. Paul or St. Thomas even have envisioned a crime by an individual (as opposed to one by a ruler, such as Herod’s slaughter of the innocents) as enormous as that of Timothy McVeigh or of the men who destroyed three thousand innocents in the World Trade Center? If just retribution is a legitimate purpose (indeed, the principal legitimate purpose) of capital punishment, can one possibly say with a straight face that nowadays death would “rarely if ever” be appropriate?
So I take the encyclical and the latest, hot-off-the-presses version of the catechism (a supposed encapsulation of the “deposit” of faith and the Church’s teaching regarding a moral order that does not change) to mean that retribution is not a valid purpose of capital punishment. Unlike such other hard Catholic doctrines as the prohibition of birth control and of abortion, this is not a moral position that the Church has always-or indeed ever before-maintained. There have been Christian opponents of the death penalty, just as there have been Christian pacifists, but neither of those positions has ever been that of the Church. The current predominance of opposition to the death penalty is the legacy of Napoleon, Hegel, and Freud rather than St. Paul and St. Augustine. I mentioned earlier Thomas More, who has long been regarded in this country as the patron saint of lawyers, and who has recently been declared by the Vatican the patron saint of politicians (I am not sure that is a promotion). One of the charges leveled by that canonized saint’s detractors was that, as Lord Chancellor, he was too quick to impose the death penalty.
I am therefore happy to learn from the canonical experts I have consulted that the position set forth in Evangelium Vitae and in the latest version of the Catholic catechism does not purport to be binding teaching-that is, it need not be accepted by practicing Catholics, though they must give it thoughtful and respectful consideration. It would be remarkable to think otherwise-that a couple of paragraphs in an encyclical almost entirely devoted not to crime and punishment but to abortion and euthanasia was intended authoritatively to sweep aside (if one could) two thousand years of Christian teaching.
So I have given this new position thoughtful and careful consideration-and I disagree. That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign. And I am happy because I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty (most of them would not be elected); if American Catholics running for Governor had to promise commutation of all death sentences (most of them would never reach the Governor’s mansion); if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty; or if American Catholics were subject to recusal when called for jury duty in capital cases.
I find it ironic that the Church’s new (albeit nonbinding) position on the death penalty-which, if accepted, would have these disastrous consequences-is said to rest upon “prudential considerations.” Is it prudent, when one is not certain enough about the point to proclaim it in a binding manner (and with good reason, given the long and consistent Christian tradition to the contrary), to effectively urge the retirement of Catholics from public life in a country where the federal government and thirty-eight of the states (comprising about 85 percent of the population) believe the death penalty is sometimes just and appropriate? Is it prudent to imperil acceptance of the Church’s hard but traditional teachings on birth control and abortion and euthanasia (teachings that have been proclaimed in a binding manner, a distinction that the average Catholic layman is unlikely to grasp) by packaging them-under the wrapper “respect for life”-with another uncongenial doctrine that everyone knows does not represent the traditional Christian view? Perhaps, one is invited to conclude, all four of them are recently made-up. We need some new staffers at the Congregation of Prudence in the Vatican. At least the new doctrine should have been urged only upon secular Europe, where it is at home."
Sunday, July 29, 2007
Dial 911 and Die
This article really did teach me something new, although not surprising. Gun control proponents let their mask slip to reveal their socialism almost every time they talk. The argument goes like this: no private citizen should have guns because the police will protect them, BUT when you actually call the police, they may or may not get there. And if they don't, even when they have a sworn, specific duty to protect you, a court will not hold them responsible for their failures...unless, of course, you are an illegal immigrant lawbreaker, in which case the cops and border patrol agents go to jail for doing their jobs. Read the whole sad and utterly predictable thing...just don't have any throwable objects handy.
Just Dial 911? The Myth of Police Protection
By Richard W. Stevens, Esq.
Richard Stevens is a lawyer in Washington, D.C., and author of "Dial 911 and Die".
Underlying all “gun control” ideology is this one belief.” “Private citizens don’t need firearms because the police will protect them from crime.” That belief is both false and dangerous for two reasons.
First, the police cannot and do not protect everyone from crime. Second, the government and the police in most localities owe no legal duty to protect individuals from criminal attack. When it comes to deterring crime and defending against criminals, individuals are ultimately responsible for themselves and their loved ones. Depending solely on police emergency response means relying on the telephone as the only defensive tool. Too often, citizens in trouble dial 911 . . . and die.
Statistics confirm the obvious truth that the police in America cannot prevent violent crime. In 1997 for example, nationwide there were 18,209 murders, 497,950 robberies, and 96,122 rapes. All those crimes were unprevented and undeterred by the police and the criminal justice system.
Many criminals use firearms to commit their crimes. For example, in 1997 criminals did so in 68 percent of murders and 40 percent of robberies. Thus, criminals either have or can obtain firearms. The existing “gun control” laws do not stop serious criminals from getting guns and using them in crimes.
Practically speaking, it makes little sense to disarm the innocent victims while the criminals are armed. It is especially silly to disarm the victims when too often the police are simply unable to protect them. As Richard Mack, former sheriff of Graham County, Arizona, has observed: “Police do very little to prevent violent crime. We investigate crime after the fact.”
Americans increasingly believe, however, that all they need for protection is a telephone. Dial 911 and the police, fire, and ambulance will come straight to the rescue. It’s faster than the pizza man. Faith in a telephone number and the local cops is so strong that Americans dial 911 over 250,000 times per day.
Yet does dialing 911 actually protect crime victims? Researchers found that less than 5 percent of all calls dispatched to police are made quickly enough for officers to stop a crime or arrest a suspect. The 911 bottom line: “cases in which 911 technology makes a substantial difference in the outcome of criminal events are extraordinarily rare.”
No Duty to Protect
It’s not just that the police cannot protect you. They don’t even have to come when you call. In most states the government and police owe no legal duty to protect individual citizens from criminal attack. The District of Columbia’s highest court spelled out plainly the “fundamental principle that a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen.”
In the especially gruesome landmark case, the “no-duty” rule got ugly. Just before dawn on March 16, 1975, two men broke down the back door of a three-story home in Washington, D.C., shared by three women and a child. On the second floor one woman was sexually attacked. Her housemates on the third floor heard her screams and called the police.
The women’s first call to D.C. police got assigned a low priority, so the responding officers arrived at the house, got no answer to their knocks on the door, did a quick check around, and left. When the women frantically called the police a second time, the dispatcher promised help would come—but no officers were even dispatched.
The attackers kidnapped, robbed, raped, and beat all three women over 14 hours. When these women later sued the city and its police for negligently failing to protect them or even to answer their second call, the court held that government had no duty to respond to their call or to protect them. Case dismissed.
The law is similar in most states. A Kansas statute precludes citizens from suing the government or the police for negligently failing to enforce the law or for failing to provide police or fire protection. A California law states that “neither a public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service.” As one California appellate court wrote, “police officers have no affirmative statutory duty to do anything.”
The state legislatures and courts protect government entities and police departments from civil liability for failing to provide adequate police protection. Some states invoke the “sovereign immunity” defense, a throwback to the days when the subjects were forbidden to sue the king. Other states have statutes that prevent legal challenges to police “discretionary” functions. Courts preclude lawsuits in those states by holding that answering emergency calls or providing police protection are “discretionary” functions.
Many states evade liability by relying on the ironically named “public duty” doctrine. Like a George Orwell slogan, that doctrine says: police owe a duty to protect the public in general, but not to protect any particular individual.
Police Advice: “Get a Gun”
A Massachusetts statute spells out the rule there: the government has no legal duty “to provide adequate police protection, prevent the commission of crimes, investigate, detect or solve crimes, identify or apprehend criminals or suspects, arrest or detain suspects, or enforce any law.” That “no-duty” rule brings tragedy, as one Massachusetts woman learned in the worst way.
James Davidson had been abusing and harassing his wife, Catherine Ford, after their separation. Catherine got a court order against James to stop his misconduct. The Grafton police knew about James, and told her that they couldn’t provide protection around the clock. One officer frankly advised her to “buy a gun because the only way to deal with violence is violence.”
Catherine did not take that advice. Over the next 15 months James continued to harass and stalk Catherine, and he repeatedly threatened to kill her and her family. James terrorized Catherine and her family at their homes. He attacked her at her workplace. James’s own psychiatrist warned Catherine that James had plans to kill her. Despite all of his vicious and unlawful behavior, the police never arrested James for violating the court order.
James issued his final death threat on January 16, 1986. Catherine reported this threat to the police. At about 6 o’clock the next evening, James started kicking down Catherine’s back door. When she ran out the front door, James spotted her and chased her even as she charged through moving traffic on the street. She pounded on a neighbor’s door, but no one would let her inside. As she ran to the next house, James caught her and shot her three times in the face and neck. He then shot himself. Miraculously, Catherine survived, but was totally paralyzed for life.
Catherine sued the town of Grafton for failing to protect her. Her lawyers argued that the police owed a legal duty to stop James, and thus the police owed a legal duty to protect Catherine. A Massachusetts statute required the police to arrest James for his repeated violations of the court order, but the police had failed to arrest him.
The Massachusetts court in Ford v. Town of Grafton held the city was not liable. The court order that was supposed to restrain James and protect Catherine did not amount to an “assurance of safety or assistance” from the police department. According to the court, when the police advised Catherine “to get a gun for protection,” that was a warning to her that the police were unable to assure her safety or protect her. Because she got no assurances of safety from the police, she had no legal right to rely on the police to protect her. Case dismissed.
Catherine Ford might have escaped James’s murderous intentions unharmed if she had taken the police officer’s advice to “get a gun” and had received a basic course in defensive firearms handling and safety. Studies show that Americans use firearms successfully up to two million times each year to stop criminals. Tragically, she chose instead to rely on a court order and the police.
These two cases are not legal oddities. The general rule of law in the United States is that government owes a duty to protect the public in general, but owes no legal duty to protect any particular person from criminal attack. Neither the U.S. Constitution nor the federal civil rights laws require states to protect citizens from crime. As a federal appeals court bluntly put it, ordinary citizens have “no constitutional right to be protected by the state against being murdered by criminals or madmen.”
Exceptions to the no-duty rule apply when the police have expressly promised to protect a specific person from an identifiable danger. Informers in a witness protection program, for example, might have an enforceable right to protection. Yet it will make little difference to a dead victim if a court some years later decides that the police did owe a duty but failed to protect him, and then awards damages to next of kin.
Picture the situation: government establishes a police force and installs 911 emergency call service. Then the government announces to the world that “you don’t need a firearm for self-defense,” and so enacts “gun control” laws to make it difficult or impossible legally to get and use a gun. Meanwhile, violent criminals remain illegally armed with guns and other weapons.
Now, imagine you are snapped awake one night by the sounds of your door breaking in. You reach for the telephone to dial 911. The 911 emergency operator never answers. Or the police answer, take your frantic report, but don’t come, or they come too late. In any of these scenarios, the burglar gets in, knifes you, and steals your VCR.
Crouching behind a chair with a telephone in your hand, you were defenseless because the government took away your private defense tools and handed you a telephone number to call for emergency help. You relied on that telephone number, and the help never came. The government’s policy made you a crime statistic.
Government lulls the public into trusting it to provide everything, takes away the people’s means of providing for themselves, and then claims it has no duty to provide after all. Noting the fatal irony in the “gun control” context, James Bovard has written that “government has a specific, concrete obligation to disarm each citizen, but only an abstract obligation to defend the citizen.” “Gun control;” Bovard notes, “is one of the best examples of laws that corner private citizens—forcing them either to put themselves into danger or to be a lawbreaker.”
Laying Bare the State Protection Myth
The drive to prohibit private firearms ownership highlights the statists’ goals in a way everybody can understand. They aim to disarm ordinary nonviolent citizens, even those who face high risk of criminal attack, and substitute police protection in place of self-defense. Meanwhile the police will not be held liable to individual citizens for failing to defend them.
Government “social programs” and various mandatory “insurance” programs operate in the same way. First, the government programs distort the market forces that provide housing, food, medical care, transportation, and other goods and services. People shift to depending on the government programs instead of taking individual decisions and action.
When the government programs fail, however, the people relying on those programs have little or no effective recourse. At best, dissatisfied people can file bureaucratic appeals to the very agencies that harmed or cheated them. There can be judicial review of bureaucratic decisions in some cases also, but the judges are usually part of the same government, and they typically defer to the original government agency’s decision anyway.
In nearly all cases the citizen bears the stress and expense of pursuing appeals of bureaucratic decisions. The cost of appealing a government decision is already high. The effect of high appeal costs is to stop people from appealing—which gives results just like the “no duty,” “sovereign immunity,” and “public duty” rules. Government grabs power but sheds accountability.
The problem with government programs is not just that citizens have only narrow and costly avenues for appeals of decisions. While a government social program is operating, it is likely making worse the very problem it was trying to “solve.” People cannot get out of a government program and return to private action or free-market solutions because of the effects of the program itself. Legislators point to the “failure” of the mar ket, whine about the problems with the government program, and then prescribe more government. The voters reward those legislators by re-electing them.
Government power ratchets up the same way under a “gun control” regime. As laws discourage innocent citizens from defending themselves, the violent criminals remain undeterred. Absent some other, overweening factor, violent crime cannot possibly decrease in that environment; it more likely must increase. The statist response will naturally be to restrict firearms ownership even more, and to enhance the police presence. Greater police presence means more police, more surveillance, more reporting to government what citizens are doing. Nearly 170 million citizens lost their lives to their own governments in the twentieth century. There is little reason to celebrate a police state.
Revealing the lie underlying the “gun control” agenda strengthens the case against socialism and the welfare state on many levels. If the argument advances the cause of individual liberty, then it is an argument worth making.
Just Dial 911? The Myth of Police Protection
By Richard W. Stevens, Esq.
Richard Stevens is a lawyer in Washington, D.C., and author of "Dial 911 and Die".
Underlying all “gun control” ideology is this one belief.” “Private citizens don’t need firearms because the police will protect them from crime.” That belief is both false and dangerous for two reasons.
First, the police cannot and do not protect everyone from crime. Second, the government and the police in most localities owe no legal duty to protect individuals from criminal attack. When it comes to deterring crime and defending against criminals, individuals are ultimately responsible for themselves and their loved ones. Depending solely on police emergency response means relying on the telephone as the only defensive tool. Too often, citizens in trouble dial 911 . . . and die.
Statistics confirm the obvious truth that the police in America cannot prevent violent crime. In 1997 for example, nationwide there were 18,209 murders, 497,950 robberies, and 96,122 rapes. All those crimes were unprevented and undeterred by the police and the criminal justice system.
Many criminals use firearms to commit their crimes. For example, in 1997 criminals did so in 68 percent of murders and 40 percent of robberies. Thus, criminals either have or can obtain firearms. The existing “gun control” laws do not stop serious criminals from getting guns and using them in crimes.
Practically speaking, it makes little sense to disarm the innocent victims while the criminals are armed. It is especially silly to disarm the victims when too often the police are simply unable to protect them. As Richard Mack, former sheriff of Graham County, Arizona, has observed: “Police do very little to prevent violent crime. We investigate crime after the fact.”
Americans increasingly believe, however, that all they need for protection is a telephone. Dial 911 and the police, fire, and ambulance will come straight to the rescue. It’s faster than the pizza man. Faith in a telephone number and the local cops is so strong that Americans dial 911 over 250,000 times per day.
Yet does dialing 911 actually protect crime victims? Researchers found that less than 5 percent of all calls dispatched to police are made quickly enough for officers to stop a crime or arrest a suspect. The 911 bottom line: “cases in which 911 technology makes a substantial difference in the outcome of criminal events are extraordinarily rare.”
No Duty to Protect
It’s not just that the police cannot protect you. They don’t even have to come when you call. In most states the government and police owe no legal duty to protect individual citizens from criminal attack. The District of Columbia’s highest court spelled out plainly the “fundamental principle that a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen.”
In the especially gruesome landmark case, the “no-duty” rule got ugly. Just before dawn on March 16, 1975, two men broke down the back door of a three-story home in Washington, D.C., shared by three women and a child. On the second floor one woman was sexually attacked. Her housemates on the third floor heard her screams and called the police.
The women’s first call to D.C. police got assigned a low priority, so the responding officers arrived at the house, got no answer to their knocks on the door, did a quick check around, and left. When the women frantically called the police a second time, the dispatcher promised help would come—but no officers were even dispatched.
The attackers kidnapped, robbed, raped, and beat all three women over 14 hours. When these women later sued the city and its police for negligently failing to protect them or even to answer their second call, the court held that government had no duty to respond to their call or to protect them. Case dismissed.
The law is similar in most states. A Kansas statute precludes citizens from suing the government or the police for negligently failing to enforce the law or for failing to provide police or fire protection. A California law states that “neither a public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service.” As one California appellate court wrote, “police officers have no affirmative statutory duty to do anything.”
The state legislatures and courts protect government entities and police departments from civil liability for failing to provide adequate police protection. Some states invoke the “sovereign immunity” defense, a throwback to the days when the subjects were forbidden to sue the king. Other states have statutes that prevent legal challenges to police “discretionary” functions. Courts preclude lawsuits in those states by holding that answering emergency calls or providing police protection are “discretionary” functions.
Many states evade liability by relying on the ironically named “public duty” doctrine. Like a George Orwell slogan, that doctrine says: police owe a duty to protect the public in general, but not to protect any particular individual.
Police Advice: “Get a Gun”
A Massachusetts statute spells out the rule there: the government has no legal duty “to provide adequate police protection, prevent the commission of crimes, investigate, detect or solve crimes, identify or apprehend criminals or suspects, arrest or detain suspects, or enforce any law.” That “no-duty” rule brings tragedy, as one Massachusetts woman learned in the worst way.
James Davidson had been abusing and harassing his wife, Catherine Ford, after their separation. Catherine got a court order against James to stop his misconduct. The Grafton police knew about James, and told her that they couldn’t provide protection around the clock. One officer frankly advised her to “buy a gun because the only way to deal with violence is violence.”
Catherine did not take that advice. Over the next 15 months James continued to harass and stalk Catherine, and he repeatedly threatened to kill her and her family. James terrorized Catherine and her family at their homes. He attacked her at her workplace. James’s own psychiatrist warned Catherine that James had plans to kill her. Despite all of his vicious and unlawful behavior, the police never arrested James for violating the court order.
James issued his final death threat on January 16, 1986. Catherine reported this threat to the police. At about 6 o’clock the next evening, James started kicking down Catherine’s back door. When she ran out the front door, James spotted her and chased her even as she charged through moving traffic on the street. She pounded on a neighbor’s door, but no one would let her inside. As she ran to the next house, James caught her and shot her three times in the face and neck. He then shot himself. Miraculously, Catherine survived, but was totally paralyzed for life.
Catherine sued the town of Grafton for failing to protect her. Her lawyers argued that the police owed a legal duty to stop James, and thus the police owed a legal duty to protect Catherine. A Massachusetts statute required the police to arrest James for his repeated violations of the court order, but the police had failed to arrest him.
The Massachusetts court in Ford v. Town of Grafton held the city was not liable. The court order that was supposed to restrain James and protect Catherine did not amount to an “assurance of safety or assistance” from the police department. According to the court, when the police advised Catherine “to get a gun for protection,” that was a warning to her that the police were unable to assure her safety or protect her. Because she got no assurances of safety from the police, she had no legal right to rely on the police to protect her. Case dismissed.
Catherine Ford might have escaped James’s murderous intentions unharmed if she had taken the police officer’s advice to “get a gun” and had received a basic course in defensive firearms handling and safety. Studies show that Americans use firearms successfully up to two million times each year to stop criminals. Tragically, she chose instead to rely on a court order and the police.
These two cases are not legal oddities. The general rule of law in the United States is that government owes a duty to protect the public in general, but owes no legal duty to protect any particular person from criminal attack. Neither the U.S. Constitution nor the federal civil rights laws require states to protect citizens from crime. As a federal appeals court bluntly put it, ordinary citizens have “no constitutional right to be protected by the state against being murdered by criminals or madmen.”
Exceptions to the no-duty rule apply when the police have expressly promised to protect a specific person from an identifiable danger. Informers in a witness protection program, for example, might have an enforceable right to protection. Yet it will make little difference to a dead victim if a court some years later decides that the police did owe a duty but failed to protect him, and then awards damages to next of kin.
Picture the situation: government establishes a police force and installs 911 emergency call service. Then the government announces to the world that “you don’t need a firearm for self-defense,” and so enacts “gun control” laws to make it difficult or impossible legally to get and use a gun. Meanwhile, violent criminals remain illegally armed with guns and other weapons.
Now, imagine you are snapped awake one night by the sounds of your door breaking in. You reach for the telephone to dial 911. The 911 emergency operator never answers. Or the police answer, take your frantic report, but don’t come, or they come too late. In any of these scenarios, the burglar gets in, knifes you, and steals your VCR.
Crouching behind a chair with a telephone in your hand, you were defenseless because the government took away your private defense tools and handed you a telephone number to call for emergency help. You relied on that telephone number, and the help never came. The government’s policy made you a crime statistic.
Government lulls the public into trusting it to provide everything, takes away the people’s means of providing for themselves, and then claims it has no duty to provide after all. Noting the fatal irony in the “gun control” context, James Bovard has written that “government has a specific, concrete obligation to disarm each citizen, but only an abstract obligation to defend the citizen.” “Gun control;” Bovard notes, “is one of the best examples of laws that corner private citizens—forcing them either to put themselves into danger or to be a lawbreaker.”
Laying Bare the State Protection Myth
The drive to prohibit private firearms ownership highlights the statists’ goals in a way everybody can understand. They aim to disarm ordinary nonviolent citizens, even those who face high risk of criminal attack, and substitute police protection in place of self-defense. Meanwhile the police will not be held liable to individual citizens for failing to defend them.
Government “social programs” and various mandatory “insurance” programs operate in the same way. First, the government programs distort the market forces that provide housing, food, medical care, transportation, and other goods and services. People shift to depending on the government programs instead of taking individual decisions and action.
When the government programs fail, however, the people relying on those programs have little or no effective recourse. At best, dissatisfied people can file bureaucratic appeals to the very agencies that harmed or cheated them. There can be judicial review of bureaucratic decisions in some cases also, but the judges are usually part of the same government, and they typically defer to the original government agency’s decision anyway.
In nearly all cases the citizen bears the stress and expense of pursuing appeals of bureaucratic decisions. The cost of appealing a government decision is already high. The effect of high appeal costs is to stop people from appealing—which gives results just like the “no duty,” “sovereign immunity,” and “public duty” rules. Government grabs power but sheds accountability.
The problem with government programs is not just that citizens have only narrow and costly avenues for appeals of decisions. While a government social program is operating, it is likely making worse the very problem it was trying to “solve.” People cannot get out of a government program and return to private action or free-market solutions because of the effects of the program itself. Legislators point to the “failure” of the mar ket, whine about the problems with the government program, and then prescribe more government. The voters reward those legislators by re-electing them.
Government power ratchets up the same way under a “gun control” regime. As laws discourage innocent citizens from defending themselves, the violent criminals remain undeterred. Absent some other, overweening factor, violent crime cannot possibly decrease in that environment; it more likely must increase. The statist response will naturally be to restrict firearms ownership even more, and to enhance the police presence. Greater police presence means more police, more surveillance, more reporting to government what citizens are doing. Nearly 170 million citizens lost their lives to their own governments in the twentieth century. There is little reason to celebrate a police state.
Revealing the lie underlying the “gun control” agenda strengthens the case against socialism and the welfare state on many levels. If the argument advances the cause of individual liberty, then it is an argument worth making.
Wednesday, July 25, 2007
Feeling Like I Fit In
The feeling of fitting in has always been strange, bordering on foreign, to me. I think that's because it happens so rarely. In school growing up, I was always too much of something or not enough of something else to really fit in with any one group. As such, I just did my own thing athletically, academically, etc. It was lonely sometimes, but I got the job done and the results have been good for the most part. Today at work, I was part of a business lunch with a law firm who sometimes does work for our company. Although we have a Legal Department and I am part of it, sometimes there are cases that are better worked by outside counsel. When that happens in Tennessee, this firm is mostly who we use. The lunch was their way of saying thank you to our company for our business.
As I sat there today amongst a half a dozen other lawyers eating a very nice meal, it dawned on me that I actually do fit in here. To quote Stuart Smalley from Saturday Night Live, "I'm good enough, I'm smart enough, and dog-gone it people like me!" Being treated like a peer, as an equal...man, that's heady stuff. I don't plan to let it go to my head, and that feeling alone isn't enough to make me sure I want to be a lawyer forever, but it really was a nice feeling. It's things like that, rewards which are small yet fulfilling, that make for great return on investment emotionally and psychologically for all the dog days of education and working jobs I hated. It really was good times, and I am glad God allowed me to experience it.
As I sat there today amongst a half a dozen other lawyers eating a very nice meal, it dawned on me that I actually do fit in here. To quote Stuart Smalley from Saturday Night Live, "I'm good enough, I'm smart enough, and dog-gone it people like me!" Being treated like a peer, as an equal...man, that's heady stuff. I don't plan to let it go to my head, and that feeling alone isn't enough to make me sure I want to be a lawyer forever, but it really was a nice feeling. It's things like that, rewards which are small yet fulfilling, that make for great return on investment emotionally and psychologically for all the dog days of education and working jobs I hated. It really was good times, and I am glad God allowed me to experience it.
Subscribe to:
Posts (Atom)