DOE v. PORITZ 5

We continue with our look at this landmark 1995 Opinion. The text of it is here.

Section V is entitled “Challenges Based on the Claim that the Laws Constitute Punishment”.

The Court reviews some of the prior cases (almost all from the very early 1990s) that decided similar legal challenges – most of those cases deciding that in the matter of whether the laws’ requirements constitute ‘punishment’ the laws are Constitutional, although some cases decide against Constitutionality.

The Court will go the ‘precedent’ route, for which the Latin term is stare decisis – roughly: the matter having already been decided, let the decision stand. “Our discussion and determination will rely almost exclusively on federal cases”; there is not yet (in 1995) much New Jersey case law on the matters at bar. Not much case law, because these Registration and Community Notification Laws (RCNLs) are something rather new to American as well as State jurisprudence, reflecting the early-1990s blooming of the ‘ethic of care’ rather than ‘ethic of justice’ in the law schools and among jurists, and all of that ‘preventive state’ legislation to which the mother-hen vision of law inevitably leads.*

“Our review of the law leads to the following conclusions: a statute that can fairly be characterized as remedial, both in its purpose and implementing provisions, does not constitute punishment even though its remedial provisions have some inevitable deterrent impact, and even though it may indirectly and adversely affect, potentially severely, some of those subject to its provisions. Such a law does not become punitive simply because its impact, in part, may be punitive unless the only explanation for that impact is a punitive purpose: an intent to punish.”

OK, now.

First, let me recall a point made in prior Poritz Posts, but also in the two Posts immediately preceding this one: An application of this exact legal analysis to Nazi ‘community purification’ laws of the 1930s would have a hard time saying why such laws were evil.

The Nazis, we recall: a) claimed the benevolent and legitimate government purposes of seeking to protect and to purify the German people and the community of the Volk; b) they therefore targeted for ‘community awareness’ all manner of undesirables – not undesirable behavior, but undesirable ‘classes’ of persons, because these classes were assumed to be incorrigible in the particular version of ‘impurity’ which their ‘offense class’ represented; c) it was therefore only for the most benevolent and legitimate government purposes that these individuals and classes be ‘tagged’ by the mandatory system of wearing colored-stars (only the Jews wore yellow stars; there were different colors of star for different targeted groups and classes of offensiveness); d) registering these persons and classes with the police was simply the only logical method of carrying out the benevolent and legitimate aims of the government to protect its people.

Now there is an argument to be made against my point here. Some official activities of the German government of 1933-1945 were inherently evil because they were ‘Nazi’. But others, such as assuring that municipal water supplies were pure and that the roads and bridges were kept in good repair, were simply the tasks that any government has to perform.

To which I would reply: OK, then. And does the colored-star ‘tagging’ fall into the first or the second of these types of official activity? Are we here in the United States now to embrace government ‘tagging’ as just another thang, like keeping the bridges in good repair or making barbers and doctors and motor-vehicle operators get officially and publicly approved before they start doing their thing? Because that surely is where ‘preventive law’ is taking us all, and the Court here is twisting itself into a pretzel to convince us not only that it’s a good thing but that it’s just a thang.

Second, the Court here continues its sly strategy of minimizing the impact upon those caught up in the RCNL web. There is “some inevitable deterrent impact” – the impact is “inevitable” because this is precisely where ‘preventive’ or ‘mother hen’ law has to lead. That impact is “deterrent” – what it is trying to get around is admitting that these laws are “inevitably” ‘punitive’, which they are and which the Court realizes will be an admission fatal to its entire effort to approve the RCNLs and by implication the entire (and highly novel and questionable) ‘preventive-mother hen’ approach to law.

It minimizes through some amount of abstraction, speaking of “indirectly and adversely affect” and through the use of the subjunctive mood: RCNLs may adversely affect those caught up in the web – but as has been demonstrated, they most certainly always do adversely affect their targets, and I would say that they have to by the very nature of their stated purpose. The Court has to avoid any but the abstract subjunctive mood here, because to say candidly that the laws most certainly and logically will “adversely affect” their targets would, again, be to make a fatal admission. If you are tagging targeted individuals or classes, then it won’t work unless others know that they are tagged – that’s the whole idea.

Nor is the Court concerned, it says, that some of these ‘adverse’ effects will be “potentially severe”. Potentially? Try: most certainly. And “severe” is a little abstract for describing the wreck of any possibility of maintaining employment and relationships, or of your family doing so – including your kids.

Nor was any of this monstrous wrack of consequences only revealed ‘over time’ such that the Court here in 1995 can be forgiven for not having a crystal ball. The Court is so ‘aware’, the possibilities and probabilities so clear even then, that the Court cannot avoid the use of the word “severe”.

But, as we have seen and will see again in this case, the Court slyly reduces the ‘certainty’ of severely adverse consequences by purring loudly its belief that the citizens and the media and the police wouldn’t get carried away. You can tell a group of humans that there are incorrigible threatening strange monsters among them, seeking to brutalize their children, force the said ‘monsters’ to be tagged, and yet not worry that things might get out of hand. This isn’t a simply an optimistic take on human nature and the dynamics of human groups; this is a willful ignoring (not ‘ignorance’) of the historical record of the species.

But of course, the ‘monsters’ are expendable: their lives are – to use a phrase that would be so clearly put by Madeleine Albright a few years later talking about the probable death of half a million Iraqi children through sanctions and invasion – “acceptable losses” when you consider the prospect of marvelous benefits that such policies are guaranteed to bring about. Just “collateral damage” in the professional government argot.

In order to serve the voracious need of any government police power for sustained and continually enhanced power – mother-hen law must have threats to the ‘chicks’ which the mother-hen can then be seen to instantly and caringly squash.

So in the mother-hen vision, there is no unified Citizenry; there are ‘chicks’ (no pun intended) and ‘threats’. The Citizens are simultaneously divided and then reduced hugely in stature: either they are merely passive victims or they are nothing but incorrigible perps.

And again, I note that the characteristic dynamics in the matter of the ‘eternal sex-offender’ mimic precisely the Nazi dynamics deployed against – with all respect to that beleaguered folk – ‘the eternal Jew’.

This is the true nature and origin of mother-hen law and the ‘preventive state’. This isn’t where it may take us if it isn’t properly implemented. This is where it has to take us in order to ensure its own survival and success.

Is this what we want for America? For our society and our culture? I am not asking this rhetorically or dramatically – this is a serious question for all Americans to consider. And that is the fierce urgency of now. And it was a fiercely urgent question then in 1995, but the Court was doing its best to mask the question, soften it, cloak it in the sheep’s-clothing of ‘benevolent and legitimate government objectives’.

And the mania – in the devious but inevitable dynamics of large public mania – feeds off precisely the deep public unease, repressed, not with the targeted class and its threat, but rather with the dark and primal awareness that all ‘pure’ citizens are now participating in a fundamentally noxious public policy, supporting it even by their silence. The German people learned all that the hard way – when it was too late.

That example was staring the Court in the face. To use an image from contemporary film, the Court is responding to Voldemort’s return just as did the Ministry of Magic: by denying it. But too, worse than that: the Court is trying to make Voldemort’s return look like a reely reely good idea.

God save the United States indeed.

Nor is it in any way sufficient to say “Such a law does not become punitive simply because its impact, in part, may be punitive unless the only explanation for that impact is a punitive purpose: an intent to punish.” Nope. The Nazi attempt was not to punish – it was to ‘protect and purify”. And look then at what happened. An action and a policy are not redeemed merely by their ‘good intention’. (Can you say Iraq War?)

The Court admits that there are “towering constitutional provisions” against this sort of thing, and indeed “of great importance to individual dignity, freedom and liberty”. But the underlying assumptions of mother-hen and preventive law are hell-and-gone from that; they are Volkisch: the rights of the individual, and the individual him/herself, are not only secondary to the ‘rights’ of the collective; rather, those individual rights are for all practical purposes non-existent. The ‘rights’ of the collective are all.**

This is not ‘new’ thinking. This is very old thinking – so old that it was the Framers who saw that it was noxious, toxic, and lethal to the vision of America for the protection and flourishing of which they put together a Constitution based most seriously on “individual dignity, freedom and liberty”. What we are dealing with here in these RCNLs and sex-offender law is nothing less than a profound threat to the entire Constitutional vision of what America and Americans essentially are. And that threat is itself an ancient enemy of genuine democracy.

And the fact that these RCNLs had to be implemented only upon the surge-wave of a deceptively fabricated national public mania is actually a back-handed compliment to the strength of the genuine vision of the Framers. And it shades, I would say, into a profound treachery perpetrated upon the American Vision as well as on the American people.

So then I cannot sigh with relief when the Court immediately asserts: “But while the role of these constitutional provisions as protectors of individual rights must always be fully enforced, care should be exercised not to convert them into obstacles that prevent the enactment of honestly-motivated remedial legislation”.

“Care”? The acceptance – in the teeth of deep and wide professional and general knowledge to the contrary – of ‘science’ that ‘proves’ the monstrousness and permanence and omnipresence of a ‘threat’ that leads directly to the legal construction of a target ‘class’ of individual citizens who must be subjected to the same dynamics last and most famously deployed by Nazi legislation and jurisprudence? This is “care”?

Nor can you say that ‘honest motivation’ is enough to make a law constitutionally acceptable or even morally passable.

Nor, come to think of it, can I accept that anyone holding high elective or judicial office can make such a preposterous set of mistaken Findings of Fact “honestly”. Are they then all so grievously ignorant and unable to think, deliberate, and analyze? I think, contrary to the Court, that in the light of the preposterousness of the Findings of Fact, that no protestations of honestly-motivated benevolence on the part of the Legislature can be accepted at face-value.

And even if we grant that the Legislature is indeed honest, then I think it is so gravely incompetent in its analysis that the incompetence itself constitutes ground for legal action.

After all, even if a bank-robber holds up a bank with an automatic assault weapon, and claims that s/he did it so as to distribute the money to the poor, and that s/he didn’t realize that the actions involved in effecting the robbery might have really adverse consequences … do we simply say Oh, OK then – carry on … ?

This raises, of course, the question of just what the Judicial Branch can do when the Legislative Branch goes kind of dangerously gaga.

Ideally, the electorate would step in and remove the offending legislators. But of course in a period of public mania, the electorate (or a majority of it, anyway) may indeed be as gaga as the legislators.

And in this post-Nazi era, public opinion in a large and complex society can be so expertly and effectively manipulated that it’s not so hard now to create such a public mania – if enough dedicated and even ‘well-intentioned’ folks decide that they want to do it. With enough money and political support and media cooperation, and with some ‘reliable’ ‘science’ you can get a lot of mania stoked up – and you can keep it going for quite a while.

It’s been two decades now, at least.

And again, the Court creates a distinction without a difference: “We assume that if the legislative purpose was to deter sex offenders, the law would be invalid: and we have no doubt that if the government ordered punishment, the law would be invalid. Neither, however, is the case here.”

But if the wrecking of citizens’ lives by calculated government action contrary to the fundamental philosophy of the American vision not only results but has to result from that calculated government action, then all the Court is doing here is to insist that the government ensure that your seat belt be fastened before it pushes you and your car off the cliff.

Can you say that the German government’s declared good intentions in securing Lebensraum for its citizens in the East outweighed and even redeemed the deaths that the invasion of Russia would cause?

Or can you even say: well, it might have been morally justifiable if the campaign weren’t botched so much in implementation because it was originally intended not to cost many lives at all. (And can you say Iraq War? … Funny how the night moves.)

The Legislature has passed a law that in the light of human societal dynamics virtually guarantees wrack and ruin for its targets, even though the Legislature insists that its intentions are ‘benevolent and legitimate’ and is focused not on the target class but only on helping people. Is it enough for the Court to say ‘Well, they mean well and that’s all that counts’ … ? It’s not as if the wrack and ruin is only a distant and improbable possibility – the historical record of the 20th century and all the mob scenes in every movie in history literally shriek a warning.

And the demonstrated wrack and ruin inevitably visited upon sex-offenders are hardly a mere “deterrent consequence”. You have by government action and authority pretty much destroyed a person’s ability to carry on a life of Love and Work in a community – if that’s only a mere “deterrent consequence” then ‘tagging’ target classes and putting targeted classes into the Reich’s concentration camps were merely deterrent consequences. To destroy a life must be seen as a bit more than ‘deterring’ that life’s possible actions.

I would say, contrary to the Court, that having one’s civic and personal and relational and career life – and its possibilities for future improvement – all erased by government action does indeed constitute “punishment”. And, having been alive and sentient in the Year of Grace One Thousand Nine Hundred and Ninety Five and of the Independence of the United States the Two Hundred and Nineteenth, I say that such a conclusion was as clearly to be discovered then as it is now.

And I’m not going to go for ‘empathy’ here; I’m not pleading for the Court to simply ‘have a heart’ and feel sorry for poor bedraggled sex-offenders, from the unassailable and virtuous majesty of its high position.

I want to reassert an ‘ethic of justice’ here. And to say that on the basis of such principles, the Court and all its cohorts in cohoots over the ensuing years, have contributed to what in effect (if possibly not in intent) constitutes a grave treachery to the Constitution and to the vision of America and Americans upon which the Constitution is based.

Is that rather strongly worded? I recall what Harry Truman said in response to an interviewer’s reference to his nickname of Give-em-Hell Harry: “I never gave anybody hell – I told them the truth and they thought it was hell.”

Zackly so.

NOTES

*See my immediately preceding two Posts.

**This is as good a place as any for a relevant tad of legal philosophy.

Legal Idealism - upon which the Framers grounded their vision of Law and of the Constitution - holds that there are principles that pre-exist the laws that the government makes, and to which those laws must conform or else they are invalid. There is a Good and there is a Bad; humans have a deep sense of that; if a law made by a government tries to impose something that is not Good, then the law (and maybe the government, if it persists in trying to do it) loses its legitimacy.

Legal Positivism holds that there are no principles, nor any realm of Principle or Principles. Rather, laws have their power and legitimacy only because the government makes them and enforces them with its authority. So, for example, a Positivist wouldn't say that murder cannot be legalized because it is Wrong; a Positivist would say that if a government wishes to legalize it (and the citizens - or enough of them - are willing to go along with it) then murder, in that country, is legal. 'Good' and 'Bad' are, to the Positivist, meaningless terms.

So an Idealist view of a citizen's 'rights' is that they stem from that realm of Principle and therefore are beyond the power of a government to take away; and that any government that tries to do so thereby delegitmizes itself. The government must respect Principles.

A Positivist view of a citizen's rights is that they stem merely from the willingness of the government to grant them, and the government can give as well as take away.

A major element of post-modern thought is 'deconstructionism': not only are there no Principles, but any 'principle' is best seen as merely a cloak for those in power to oppress those without power, since - at the heart of it all - nothing is real anyway and it's all really just a matter of how people 'perceive' things (or can be made to perceive them).

In the very early 1970s, the American philosopher John Rawls held that a nation's "elites" - those who really saw how things should be - should feel free to 'lead' all the other citizens (who 'just didn't get it'). There was no valid authority - including the Constitution - that they should allow to stand in their way of this great 'mission'.

Such abstractions as Principle and Reason and Principles, said a determined cadre of radical feminists, are merely tricks whereby those in authority continue their oppression - and what the country must therefore do is to base law on Feeling (like George Bush's 'gut-feeling', oddly enough).

Blend Positivism, deconstructionism, Rawlsian elitism, and Feeling-ism; imagine each of these separate forest fires burning toward each other and combining into one mega-fire ... and you can start to see what's happened in the country, and especially what's happened in the sex-offense mania: the government - under the influence of its elites - will say what's best to be done and who gets what rights (and who loses them, for all practical purposes), and if all the citizens simply give in to the feelings that the government thinks they should have and then take the government's word for it that the new stuff is reely reely goood, and they just 'change their perception' of what's going on, then everything will 'progress' to a much better nation and society and culture.

So here in Poritz we see Chief Justice Wilenz - who bought into all that new stuff - using this Opinion to put that overall plan and method into operation. The citizenry, already in a mania with the help of sensationalistic and selective media coverage, need only take the Court's word for it that the Legislature has done the right thing and if the citizenry just shuts up and goes along and learns to get used to the new stuff, then it will be a much better State of New Jersey and a much better America. Judge for yourself.

Creating a public mania - in this 'new' view - would be a step toward 'educating' the citizenry, not 'stampeding' it, since the elites who created and sustain the stampede have a very clear destination in mind, whereas a stampede is actually kind of aimless. But aimless or not, a stampede works on feelings; you never saw the cattle consulting a map beforehand or once the thing got started. That wasn't their role.

You can see where this sort of thing can go.

And has.