Law & Justice: August 2003 Archives

According to the Mississippi Supreme Court, only the mother of an unborn child has the right to kill that child.

JACKSON, Miss. — The Mississippi Supreme Court, in a decision criticized by one of its members as an assault on Roe v. Wade (search), held Thursday that a fetus is a "person" under state law and wrongful death claims can be filed on its behalf. ...

Presiding Justice Jim Smith, writing for the court, said Thursday's ruling in the lawsuit brought by Tucker had nothing to do with abortion. He said doctors performing abortions are still protected by Mississippi law.

"Tucker's interest is to protect and preserve the life of her unborn child, not in the exercise of her right to terminate that life which has been declared constitutional by the U.S. Supreme Court," Smith wrote.

That strikes me as a little odd. Even the pro-choicers seem to recognize the incongruity of the decision.

Sondra Goldschein, state strategies attorney for the American Civil Liberties Union said she was troubled by the court's definition of a fetus as a "person."

"Anytime the fetus is recognizable as a person it chips away at the foundation of Roe," she said.

She's certainly correct, and I suspect that was exactly the purpose intended by some of the people behind the lawsuit. It's the same type of end-run that gun-control advocates try to pull by passing registration laws and limits on magazine capacities. I don't disagree with the decision, but I would vastly prefer it if our legal system weren't so convoluted.

I've written about the War on Drugs before, and while I don't (yet?) buy into the idea that all drugs should be legalized, I do think that the status quo is incredibly damaging to American society. Consider this Justice Department study that reports on differences in incarceration rates for blacks and whites.

(CNSNews.com) - One in every three black American men faces the possibility of imprisonment during his lifetime - a disproportionately high figure when compared to white males, according to a new Justice Department study. ...

But the Bureau of Justice Statistics report reveals that a black child born today faces a strong likelihood of spending at least some time in prison. Black men had a 32.2 percent chance of going to prison in 2001, while white males had a 5.9 percent chance and Hispanic men had a 17.2 percent chance. ...

"The police tactics tend to be more focused on neighborhoods where you are more likely to arrest an African American man for a low-level drug offense than if we were to concentrate those resources in a suburb," Ziedenberg said.

"Whites and African Americans use drugs at pretty much the same rate," Ziedenberg added. "We enforce the drug laws more in urban communities, and then we arrest people, and then we convict people, and then they end up in prison."

If laws exist, they should be enforced geographically proportionally to where they are violated. Experience shows that urban neighborhoods tend to have more crimes of all sorts than suburbs do; even if blacks and whites use drugs at the same rate (perfectly reasonable), I suspect that there is more drug-related gang activity in urban areas, and more drug sales.

Either way, the gangs and the illicit drug sales are intimately related to the War on Drugs. As the Marriage Movement notes, there is a correlation between unwed childbearing and the number of black men in prison, and the breakdown of the family is one of the greatest social issues facing America today. (Black families are particularly disrupted by the War on Drugs, but families of all races are in trouble.)

Of course, one simple solution is for people to start obeying the law. Whether or not "over enforcement" exists in black communities will be irrelevent if blacks stop breaking the law.

Mychal S. Massie, a member of the conservative black leadership network Project 21, said many blacks must change their outlook if they're going to reverse the high rates of incarceration. He remains skeptical of substance abuse programs and emphasizes personal responsibility instead.

"It does not have to do with being poor, being black or it being a residual effect of slavery," Massie said. "It has everything to do with not being responsible in one's behavior and our being a country and a system of laws, and we must abide by those."

Good advice for everyone, of every race. Nevertheless, our nation needs to revisit our drug laws, and consider some drastic reformation. That may mean wholesale legalization, or something entirely different, but the current system is contributing a great deal to one of the most pressing social crises of our day.

Update:
Or maybe incarceration is linked to the weather? Of course, the closer you get to Canada, the fewer blacks there are, so I don't know if any of these statistics actually mean anything.

This is the third in a series on rights, power, voting, and utility.
Part 1: The 19th Amendment -- Good Idea?
Part 2: The "Right" to Vote, and Utility

With all the discussion of the costs and benefits of allowing women to vote, it's natural to ask the next question: why do we need democracy at all? If society could be more prosperous had women not been allowed to vote, then perhaps they shouldn't have been allowed to do so. The problem then, however, becomes a question of who gets to set the goals, and who gets to define "prosperous" (since we're not merely talking about monetary prosperity, but utility, and utility is different for everyone).

Historically, the people who have gotten to define "prosperous" have been people with hard power. Hard power represents the ability to use physical force to compel others to conform to your desires, and is often manifested in the form of armies and weapons, real estate and capital, and the knowledge and desire required to apply these tools to disagreeable circumstances. America wasn't able to break free from England purely by the virtue of our natural rights to freedom and liberty; rather, these rights and our desire to possess them motivated our forefathers to use their hard power to overthrow English rule. It's often said that we "have" a right to this or that, but unless we have the hard power available to seize and defend that right, it's little more than a rhetorical construct.

God may grant us the rights of life, liberty, and the pursuit of happiness, but unless we have the hardware to back it up we're likely to have those rights taken away in fact. Our natural rights are not rights that are enforced by God, but they define the extent to which it is permissible to use force against each other, and they define who is right and who is wrong in such conflicts. If you attack me without provocation, God is not likely to intervene to stop you -- but he will sanction my use of hard power in self-defense. (SDB writes a little about hard power as it applies to relations between countries.)

The power to vote is not hard power, but soft power; votes only have meaning as long as those with the hard power respect them. If you look around the world, internationalists want to replace the hard power of armies with the soft power of UN negotiations, international courts (ICC), environmental treaties (Kyoto); however, dictators and strongmen continue to subjugate their people through the use of hard power, and generally show no respect for soft power unless it happens to coincide with their wishes -- take Saddam's treatment of the myriad UN resolutions, for example. Soft power can only be used successfully when those who possess hard power restrain themselves.

As I wrote in part 2, above, voting is not a right; as such, if you are forbidden the power to vote you are not being inherently wronged, as long as your true rights are not being violated. Using force merely to gain the power to vote is not morally acceptable. However, it's uncommon for societies with a single voter (a king), or a small, select group of voters (feudalism, or an oligarchy) to respect the rights of those without hard power of their own.

This situation sets up a rather interesting conflict, assuming those with hard power want to respect the natural rights of those without. Those with hard power can set up social institutions (democracy, courts, &c.) to ensure that everyone's natural rights are protected, but if those soft power structures overstep their bounds they will become burdensome, and they may eventually be overthrown. This perspective views democracy and other forms of soft power as grants from those with hard power who have an interest in respecting the rights of the powerless.

Soft power structures show their true strength over time, as they manipulate the foundations of hard power. For example, the 2nd and 3rd Amendments attempt to permanently diffuse the concentration of hard power, on the basis of the natural rights to private property and self-defense. These words don't factually eliminate the hard power that could oppress you, but over time they work in the minds of men to change their thoughts, and to further ingrain the respect for you rights that led those with power to restrain themselves in the first place. Soft power must entice and coerce hard power, subtly influencing over time.

Democracy has proven to be quite adept at manipulating and controlling those with hard power. America's military is the most powerful force that has ever existed on the planet, and if its generals were able to wield that power at their own discretion they would rule the world. But America's military is under civilian control, and that control is passed on every few years without involving the use of hard power. This principle is not merely written in our Constitution, but is ingrained in the hearts and minds of every man and woman who carries a rifle or drives a tank. They possess hard power, but they restrain its use because of their committment to the powerless.

Was our initial government in 1788, after the ratification of the Constitution, democratic? Yes, although only a limited group of people was allowed to vote. Under our modern system, many more people are allowed to vote, but still not everyone: children, convicts, non-citizens, the insane, the unborn(?). Are we democratic? Certainly. There is clearly a range of suffrage that is allowable under democratic rule, and over time we have moved along that spectrum -- but I don't expect that we will ever move to total suffrage, because those with power (hard and soft) don't think that granting the power to vote to those without it would lead to a better government.

Do children, convicts, non-citizens, the insane, and the unborn have the rights to life, libery, and the pursuit of happiness? Each of those groups of people has their power limited for different reasons, and many would argue that some have rights and others do not, for whatever reason. At the root level, however, the question of granting soft power to these groups comes down to that of the interests of those who currently wield power. And we say no. We may or may not recognize and respect their rights (if they exist, which is a separate issue), but we don't grant them power because we don't think it would be in our best interests They do not possess hard power of their own to use in seizing soft power.

Our nation is free and prosperous as a direct result of our respect for each other's natural rights. Economic liberty and social freedom have given us a tremendous amount of hard and soft power, and we use that power to create wealth and raise our standard of living, as well as to (hopefully) spread the values that have led to our success. Our experience has shown that rights are more likely to be respected when power is diffused as widely as possible. In response to part 1, a commenter wrote that by recognizing the rights of women (and by granting them soft power?) we have attracted the best and brightest women from around the world, and that they add immeasurably to our prosperity. Our foundational ideas hold that when rights are respected, economic and cultural success follow behind.

Making fine cultural adjustments is difficult and error-prone, as in general we decide against it. It may be the case that granting women suffrage has been a net loss, but it's so difficult to calculate -- and the gross benefits are so obvious -- that the nation (and those with power at the time) decided to err on the side of further diffusion. We do restict the power of some groups based on what most believe are rather clear criteria, but those circumstances are limited and (except for the unborn) mostly non-controversial.

So why democracy? Because democracy tends to diffuse power more successfully than any other form of government, and diffuse soft power limits the interference of those with hard power by subtly manipulating their goals and desires, thereby increasing their respect for the rights of the powerless.

Alabama Chief Justice Roy Moore is continuing to refuse to remove the Ten Commandments monument he set up in front of the Alabama state judicial building. What strikes me as particularly hard to believe, however, is the alleged cost of his refusal.

U.S. District Judge Myron Thompson of Montgomery, who ruled the monument violates the constitution's ban on government promotion of religion, had said fines of about $5,000 a day would have been imposed against the state if the monument were not removed.

Moore pledged to ask the Supreme Court to overrule Thompson and said the promised fines would add to the approximate $125 million the state has already spent defending the monument's place. The state is spending $25,000 a day of taxpayers' money on the case, Moore said.

According to the State of Alabama State Government Finances website, the state's total general fund revenue for FY 2001-2002 was only $1,189,000,000. There's no way they spent $125 million on this lawsuit over the past 4 years.

I emailed the link to Eugene, and he thinks the amount is pretty unrealistic as well. And he links back to me -- thanks! The Volokh Conspiracy was my blogging inspiration.

Update:
Eugene and his readers have proven that the FoxNews story is incorrect, and he cites this episode as an example of how good blogs are at fact-checking.

Update 2:
For my thoughts on more recent developments, see Christians Waste Time, Goodwill, and Neglect True Mission.

This is the second in a series on rights, power, voting, and utility.
Part 1: The 19th Amendment -- Good Idea?
Part 3: Why Do We Need Democracy?

There's no such thing as a "right to vote". There's the power to vote, but no-one has a natural, God-given right to vote. We have the rights to life, liberty, and the pursuit of happiness, but none of those require or imply the right to vote. An absolute dictatorship could respect our God-given natural rights, and be entirely just. For instance, most families don't operate as democracies, and yet most families respect these basic rights.

One my my friends (I hope she's still my friend) responded to my earlier post about the 19th amendment and said that she doesn't want to apply economic principles to civil rights. However, economic principles apply to every human endeavor, whether we recognize it or not. No one needs to come put a price tag on your forehead for there to be a cost associated with the rights and powers you enjoy. That cost is there automatically, regardless of your approval, and economics is merely the study of the costs and benefits associated with everything humans do.

Costs and benefits often aren't monetary -- generally economists refer to "utility" to describe how valuable something is to a person. Love and affection, the power to vote, $1000, clean air -- all of these items have utility to people, and different people will value them differently. When it comes to the power to vote, I hypothesized that if you were to walk up to a random guy on the street and offer him a 20% permanent raise in exchange for his power to vote, he'd probably sell it to you. Most people don't vote, and many who do don't take it very seriously. If Joe Shmoe won't sell his vote for a 20% raise, maybe he will for 50%, or 100%, or 1000%. There's a price, you just have to find it and be willing to pay it. Some people may place infinite value on their power to vote, but I doubt there are many such people -- especially if you separate the power to vote from the natural rights we hold so dear.

With all that understanding, it's quite reasonable to wonder whether or not giving women the power to vote was a wise idea. I agree that it has moral value, and we gain some utility as a society from that good morality, but does that moral utility out-weigh the utility of every effect that has arisen because women can vote? It's possible that that moral utility is more valuable to you than anything else, but I doubt that's the case.

The question is whether or not our present circumstances are overall better or worse than they would be if women had never been given the power to vote. Yes, there is some degree of utility that arises from the moral good that was done in granting women that power, but that utility is not of infinite value.

For instance, the War on Drugs would probably not exist if women couldn't vote; the War on Drugs costs us billions of dollars a year and incarcerates millions of otherwise-innocent people. It also encourages a lot of violent crime associated with the black market. On the other hand, the War on Drugs probably reduces drug use, and reduces the societal costs associated with that. So, your opinion of the War on Drugs can influence your opinion of the total utility gained or lost when women were given the power to vote. There are many other issues that have been affected by the 19th Amendment, and all of them should affect the way you value the power of women to vote.

Courtney has some links to the conversation going on at Dean's World. In the comment section there she promised a post on the subject herself -- but so far, nothing!

Continued in part 3, "Why Do We Need Democracy?"

Update:
Dean Esmay explains some of the thinking during the early suffrage movements.

It's nice to see a report about a thwarted attempt to sell a surface-to-air missile to terrorists inside the United States.

It's odd to try and imagine the news coverage that might have resulted if the September 11th attacks had been foiled by good intelligence work. I doubt that many news organizations would have taken the situation seriously enough to speculate that thousands of lives had been saved by capturing a few Muslims with pilot certifications.

If this guy had actually been able to smuggle a missile into the States and someone had taken down a civilian jet with it, the economic impact alone would have been enormous, even aside from the hundreds of lives that could have been lost.

This is the first in a series on rights, power, voting, and utility.
Part 2: The "Right" to Vote, and Utility
Part 3: Why Do We Need Democracy?

Call me old fashioned, but women voters? What planet are we on? Beam me back up to the mothership.

As Dean Esmay notes, it's been 83 years, and what have women really done for us? Prohibition -- good move. That worked well. Oh sure, it was ratified before women could vote, but it was their idea. Let's see... that's pretty much it.

Let's be serious here though and really consider. Are we as a nation better off having given women the power to vote? I agree that from a moral perspective it was the right thing to do, but I don't think the issue is that black and white; there were substantial groups of women opposed to granting women suffrage.

If you told me, Michael, the country could have a 20% higher standard of living if we were to go back in time and start again as a monarchy, I'd say "sign me up!" I think most people would be willing to trade their vote away for a substantial salary increase. Any individual would sell their vote for the right price, so it's not unreasonable to speculate on the costs and benefits of women's suffrage.

Each individual woman has more freedom than she would otherwise have had, and each individual man has less power than he would otherwise have had -- at least as far as voting goes. But women tend to vote socially and economically liberal, so it's possible that men have more freedom now than they would have had if women had not been allowed to vote, simply because women may have voted for more civil liberties than men alone would have. However, it's also possible that women's liberal voting tendencies have reduced our freedoms, considering that modern "liberals" aren't really all that concerned with maintaining liberty. Similar hypotheticals can be set up with regard to the economy.

It seems likely that if women had not been given the power to vote, more conservative/libertarian laws would have been enacted than actually have been. Women are big supporters of the War on Drugs, for example, and big social spenders. Therefore, those who hold conservative/libertarian positions would probably have a government more to their liking if women had not been given suffrage.

I'm not a historian, but I play one on TV, and if you look through history you'll realize that the position of women in America is really an aberration. Through out every culture, through out all time, women have never been as free and powerful as they are in the United States right now. In an absolute sense, giving women equal social power was an act of indulgence for men; women are physically weaker than men, and in might-makes-right societies that weakness translates directly into social subjugation. It's quite reasonably arguable that the power of women in America is against the "natural order" of the world, and it would be difficult for any materialist to disagree.

I expect that most people who are reading this believe that women's suffrage is a Good Thing. I hope that none of my female readers have taken offense to this topic. Even though I agree that women have God-given equality with men, I'm not convinced that giving them equal social power has resulted in a net gain for society -- or either men or women separately.

Please leave your opinion. Your concept of "gain" may be purely monetary (what we might normally call "standard of living"); it may include freedoms and liberties aside from the power to vote itself; it may encompass foreign policy; it may involve deep philisophical or religious issues. In any event, please define what you consider to be "gain", and then tell us if we made the right decision.

Update:
Continued in "The 'Right' to Vote, and Utility".

Just a quick link to the story on FoxNews: Former Human Shield Faces Thousands in Fines.

Yes, I do love it. I'd rather she face the headsman's axe for providing substantial aid and comfort to our enemy during a time of war, but alas.

Is this story a parody, or is it for real?

Gun control activists nationwide are pressuring newspapers to stop accepting legal classified advertising of firearms for sale by private citizens. Advocates of gun owners' rights said Thursday that anti-gun forces apparently aren't content with ignoring the Second Amendment and now want to ignore the First Amendment as well.

"The issue is not guns, but the way guns are sold," claimed John Johnson, coordinator of the so-called National Campaign to Close the Newspaper Loophole, in a press release Wednesday. "In an age of increasing concern for public safety, we find it difficult to defend a newspaper's part in the private sale of firearms by unlicensed sellers without a criminal background check of the would-be buyer."

The campaign acknowledges that it is completely legal for private citizens to sell guns to other private citizens but wants to use privately owned newspapers to inhibit such sales.

"We recognize that classified ads for guns are perfectly legal under federal and [your State] state law," the campaign writes in a sample letter for activists to send to newspaper publishers. "But just because something is legal doesn't mean that it is good policy."

How is doing something that's perfectly legal a "loophole"?

Sure, the National Campaign to Close the Newspaper Loophole is legally allowed to advocate the restriction of my 1st Amendment rights, but is it good policy? I can think of a few other holes that need to be closed.

I don't like it. Sure, a DNA match is statistically more certain than a name and eye-witness identification, but the movement towards indicting suspects by their DNA leaves me with an unsettled feeling. As I've asked before, where does it end?

The New York Times said city officials will review DNA evidence from hundreds of sex crimes committed years ago, seeking indictments even when the suspects' identities aren't known, as a way of beating the 10-year statute of limitations.

The first 600 cases will involve crimes committed during 1994, but officials said they believe DNA-based indictments will allow them to arrest suspects no matter how far in the future.

Statutes of limitations are important for a great many reasons, not least of which is the fact that it can be impossible to defend oneself against an accusation of wrongdoing that was committed many years previously. Witnesses and investigators die or become unavailable; evidence can be lost of corrupted; memories fade or change over time.

Perhaps DNA acquisition, storage, and analysis procedures are completely rock-solid, but they aren't intuitive to the average layman. I saw John Smith steal my purse. Yes, that's his picture. Everyone can understand such testimony, and everyone has the carefully developed intuition that is required to discern truth from fiction. That's not the case with DNA evidence. Jurors would need to place their entire trust in the invisible and complex scientific process that handles DNA matching, and that's difficult to do. DNA is mere evidence, and evidence can be lost or tampered with -- words from a real human being who tells what he saw will always carry more visceral weight.

It's important for trials to be open and public, and one aspect of that openness is simplicity. Laymen need to be able to understand the entire chain of reasoning and evidence that leads to a suspect's arrest, trial, and judgement, or the public will lose faith in the system. Consider the pre-cogs in Minority Report -- even if they were correct 100% of the time, society would never tolerate such an opaque justice system, nor should it. It is eminently preferable that some criminals go free than that the public either blindly accepts an inscrutable legal system (ahem!) or loses faith in the system entirely.

Chip Taylor has written a few posts about the expense of imprisoning criminals, and I'd like to ask a question:

Would justice be hindered if non-violent, non-injurious crimes were not punished with incarceration?

Perhaps interpretation of the 8th Amendment has eliminated so many other potential punishments that we're forced to use imprisonment for everything, but this need not remain the case. For example, public floggings have a long history of use in every part of the world, and could be performed under proper medical supervision such that no permanent injury would be inflicted. Non-violent offenders could also be subject to terms of indentured servitude, and could thus contribute to society during their punishment.

Even aside from my opinion that many non-violent crimes shouldn't be "crimes" at all, completely restructuring our punishment paradigm could save us a great deal of money, and perhaps further the execution of justice, as well.