IF NOT HERE, WHERE?
An article brings the story of a treated and released sex-offender, and thereby hangs a tale.
East Palo Alto is situated on the San Francisco Peninsula, not quite halfway up between that great city and bosky Los Gatos.
There arrives one Donald Robinson, recently released. He was convicted of raping two women in 1976 and a 19 year-old female in 1984. He was sentenced to 21 years, but in 1998 – eligible for parole – he was classified as a sexually violent predator and instead was committed involuntarily to a state mental hospital. He successfully completed 11 years of treatment there, after which the State, having had to look over more than a thousand properties, placed him in an apartment. He is one of only 15 sex-offenders to successfully complete the civil commitment course in that State.
By the workings of history, he arrived in town the day after one Philip Garrido was discovered to have kept a sex-slave on his property for 18 years, despite full compliance with the letter of the applicable sex-offense laws. Robinson is now arthritic in both knees, balding, needs glasses, and has a heart condition. He is 57.
The State had to pay for the apartment search; it has to pay for his apartment ($3,500 per month) and it cost the State around $185,000 per year for the civil commitment, or well over a million dollars for the 11 years. He will be monitored for the rest of his life, also at State expense, which will include satellite tracking devices, random drug and polygraph tests, and will require permission to drive an auto or even walk through the neighborhood.
If memory serves, his ‘house arrest’ is far more stringent – and costly – than that imposed upon a certain Professor Doctor Khan, a Pakistani nuclear expert who was discovered a few years ago to have sold nuclear secrets and how-to lessons to anybody who would pay him (and has since, again if I recall correctly, been pardoned by his government, and is again free to attend dinner parties and professional conferences on the weighty matters within his realm of expertise).
A couple of points come to mind.
The article observes that Robinson’s case “underscores just how hard it is for the government to move sex-offenders back into society”. Of course, it is the government – State and national – that first went to such great lengths to whip up public opinion with its gravely inaccurate certification of all sex offenders as incorrigible and uncontrollable recidivists whose lives are defined solely – like the Biblical lion – by “going about seeking whom they might devour”.
Certainly his crimes – presuming he was accurately identified as the perpetrator – are repugnant. Although I can’t help but thinking that his victims did not lose their lives, as opposed to – say – a certain former companion of the late Senator Kennedy forty Biblical years ago. Nor, if – may God prevent it – Professor Doctor Khan’s former business enterprises bear their poisonous fruit, will all those victims remain alive.
But Mr. Robinson is hardly in a position to be going out and about in pursuit of prey. And the State experts are convinced that he poses no great threat as to future re-offending. And Mr. Robinson himself says he has mastered himself and harbors no desires in that direction.
He has accepted responsibility and worked to repair himself in ways that the other two far more illustrious personages mentioned here never have. Surely the State would not have put its authority and prestige at such great risk if it and its experts judged otherwise.
The mayor of East Palo Alto did the local police one better: while the officers distributed fliers around the neighborhood, the mayor had every resident in the phone book alerted. And not just as to the ‘notification information’; all residents were notified of a protest rally to be held in front of Robinson’s house, led – wait for it – by the mayor himself. Whose office, it seems, is also supporting a regime of daily picketing outside the house.
The article further observes that this case illustrates “the difficult balancing act between community safety and the rights of ex-offenders to live in peace and resume a normal life”.
I don’t think that quite gets to the heart of the problem.
On the left side of the equation the key is not “community safety”; nobody knows what this man will do – which may well wind up consisting of living out what’s left of his life in peace and quiet, perhaps even productively (a big perhaps, I agree, given the hurdles he faces). Rather the key on that side of the equation is ‘community feelings’: folks are all worked up, stoked up, and this is in large part a result of the government’s own actions in creating the ‘incorrigible monster sex offender’ in the first place and then certifying and broadcasting its creation over the length and breadth of the land.
Clearly, this is not what the pious Chief Justice envisioned in the Portiz case. That citizens would not only rise up against the ex-offender but would be led by their public officials is something that the Poritz majority pooh-poohed as a disrespectful slur upon civic maturity.
Of course, the lone dissenting Justice – Justice Stein – observed* acutely that it would be fatuous to assume that people would not become dangerously stoked over the presence of a ‘sex offender’ as that mythical beast was defined by the State. He quoted James Madison and John Marshall and appealed to the common sense awareness that folks can do some nasty things when they are riled up, especially if they believe – and on the authority of the State and the federal government! – that they are righteously riled up.
And here We are fifteen years later. Would anyone care to bet that the apartment is not going to experience a devastating fire before too long? And that if a charred corpse is carried out in a body-bag afterwards, that there won’t be a ripple of applause at the very least?
This is the sort of thing that happens when you toy with the awesome primitiveness in all of Us, in all human beings, if they are pushed or prodded long enough in a certain way, in a certain direction. Civic maturity is not a naturally occurring human capacity; it is – like democracy itself – a verrry hard-won and fragile achievement, so wonderful in the volatile human spirit that it can rightly be described a gift of God.
On the right-hand side of the equation, there is Mr. Robinson’s current civic and moral competence. “It’s hard to blame the community for a natural reaction to a horrific sex crime”, says one experienced psychologist; “We’re trying to integrate this person into being a law-abiding citizen again – on the other hand, we’re treating him likes he’s going to be a predator forever”.
Just so.
In the first place, Mr. Robinson may very well already be a law-abiding citizen “again”, having learned the hard way and by walking the long way around , just what it means to abide by the law. It is hardly inconceivable that someone might come back from years in prison (and highly-focused therapy for a decade on top of that) actually possessed of a deeper sense of what it means to be law-abiding than those who were merely ‘born’ law-abiding and have never committed (or at least been held to account for) a crime.
This is a point very few care to think about: that prison might actually work, in the crucible of a particular prisoner’s soul, to refine him beyond anything possible in a less-rigorous, more ‘normal’ environment. Who can say? Surely this is the Protestant insight into Baptism: that only those who come to it through their own adult struggles – as opposed to simply being baptized as an infant – are truly experienced in the ways of God and grace. I’m jus’ sayin’.
In the second place, it is precisely the ‘certification’ of the State in the sex-offender ‘science’ that there is no such thing as an ex-offender or an ex-predator. Indeed, it is precisely that ‘finding’ that has justified the whole scheme from the get-go. And that is what folks have been ‘taught’ by their State and federal governments.
Which, in the third place, puts genuinely committed therapists in a terrible bind: they have to support a ‘returnee’s’ (if I may) self-awareness as a former offender and as having the competence to live an offense-free life from here on out, while at the same time trying to demonstrate to the ‘returnee’ that folks are legitimately – or at least understandably – stoked up against him.
None of this was not a clear possibility – and I would say probability – fifteen and more years ago as all the sex-offense laws started to mushroom up.
And it is only getting worse.
The mayor, on top of everything else, asserts that “a sexually violent predator doesn’t belong here, with old people and families”. This is on the same level with the Georgia legislator who, confronted with the ruinous and draconian complexity of his State’s sex-offender laws, opined neatly that he would hope that that very draconian complexity would sorta induce a sex-offender to decide that he should move somewhere else (which, of course, would mean some other State). It’s not a stretch to figure that a lot of legislators in just about every State are thinking the same thing – and so you can see where all of this has to go. We have created not only a permanent second-class of citizen – if not also a permanent class of enemies-of-the-people – but also a class that cannot live anywhere, let alone conduct a normal life.
Where, after all, can you find a city or town that does not include some “old people and families”?
What has happened to Us?
The Communist revolution created such classes, but then thoughtfully provided a residence in the Gulag, followed – if the individual had the bad luck to survive that sentence – by a shadow life on the margins of society, tracked by the secret police and available for any arrest they might need a warm body for.
Nor would his family escape.
This is not the American way. It is precisely what the Framers sought to eradicate when they built their unique Constitutional vision of government and society.
And that vision rests on a tremendous respect – an indispensable and fundamental respect – for the dignity of the human individual and the individual Citizen. That dignity is “inalienable”, endowed by the Creator and not within the authority of any government to withdraw.
And given that human beings are so deeply prone (not to overtly discuss Original Sinfulness) to failing their own best potentials, than there is a built-in risk to that dignity and liberty of the individual: that some will from time to time use it improperly – even awefully, or all will to greater or lesser extent.
But neither the government nor the citizenry were empowered to withdraw that dignity. To allow otherwise was to start the slide back to the serfdom of the Old World, its aristocracies and chattels and peasants, its brute rule by the whims of self-designated ‘pure’ elites and mobs.
From a Constitutional point of view, the insidious embrace of the withdrawing-of-dignity, no matter under what guise and no matter for what erstwhile good intentions, has precipitated a dark regression that proclaims to anyone with the courage to see that the Founding Constitutional vision is failing here.
That danger – of truly ‘world-historical’ proportions – must command Our attention.
NOTES
*See my Post “Doe v. Poritz: Justice Stein’s Dissent”, September 5, 2009, on this site.
Monday, September 28, 2009
Saturday, September 26, 2009
NO TO SEX OFFENDER REGISTRY
Over on Constitutionalfights there’s a posting from Singapore.
That locale, you may recall, has one of the strictest legal systems in the developed world – they achieved some notoriety a while back for caning somebody as a court-imposed punishment.
A site there has a Post objecting to the proposal to start up a sex-offender registry. “The call for a sex-offender registry should never have materialized” says the author, presumably a Singaporean citizen.
With admirable clarity and directness the author hits two major points right off: Such a registry (apparently with all the online availability to the public) would constitute “an infringement of human rights and personal dignity” and it would deprive “them of a second chance in life” as well as open “the floodgates for discrimination”.
A shame – I say – that We have to hear this from somebody in a sovereignty that still canes its convicts. It’s a sign of Our national civic regression and decline, a falling-away from the Constitutional ethos bequeathed to Us by the Framers.
What has happened here? What has happened to Us?
Without subscribing overtly to the Christian sense of forgiveness – based, I might add, on the acute awareness that nobody but nobody is ‘pure’ and everybody without exception fails to live up to his or her ideals – the Framers still sought to prevent the ‘tagging’ of citizens by the government. Such a power in the hands of a government – itself composed of imperfect individuals, as the Framers saw, and in more modern times hugely susceptible to bureaucratic dynamics and the operating characteristics of a mass society – could not be safely countenanced in their vision of American society.
And without subscribing overtly to the Christian sense of redemption and the rehabilitation of genuine penitence, the Framers saw as a practical matter that it would be lethally unwise to create one (and, of course, given the way these things tend to multiply and expand, several) groups of second-class Citizens who are officially declared to be unworthy of Constitutional protections and the right to pursue a civic and personal life. (And, of course, the Nazi practices of officially colored-starring certain groups and official declarations of being a ‘life unworthy of life” (ein Unlebendwurdigesleben) come queasily to mind.)
Such government practice, they no doubt saw, would create fatal divisions among the Citizenry and create unstable fractures in the body politic that would eventually undermine the legitimacy of the government itself. And, as Madison saw and Justice Stein recalled in his Dissent in the Poritz case, it would constitute a violation of the fundamental social compact itself.
Justice Stein was profoundly right to observe that such gravely dangerous precedents should not be established lightly, if at all.
But the author of the Post then goes on to raise a third telling point: s/he recalls the “old adage” that “an eye for an eye and the whole world goes blind”.
Which is itself a profound bit of political and moral wisdom.
"An eye for an eye": there is a strain in the Old Testament that embraces this primitive concept. In a world of tribal divisions, with no central police authority and no court system, the rough ‘justice’ of punishing and deterring by inflicting – in the earliest time literally – an equal physical tort to the one suffered by one tribe or clan member as a consequence of the actions of another.
Even if the prescription was meant as a limitation – if you suffered the loss of an eye, you cannot inflict on the tort-feasor the loss of two eyes or eyes and limbs or even death – it still represents a primitive level of ‘justice’ that ‘civilized’ societies of later times grew beyond.
The development of Christianity provided the conceptual basis for a sense of law and justice that recognized the possibility of rehabilitation, and even more deeply the awareness that just as all members of a society are sinners, then all are equally guilty before God but also equally eligible for forgiveness.
This is not to say that since all are guilty of something, then nobody is guilty of any particular act – but rather that just as God tempers justice with mercy, so should God’s children do so to each other. But the requirement for genuine penitence and a resolution to change one’s offending ways remained as well.
As Western societies developed, those concepts about ‘sin’ and ‘sinfulness’ were assumed into the development of law and crimes. But it took a long time to achieve that development – and in the West it was not until the 18th century and even later that governments both established a reliable police and criminal justice system and also accepted the responsibility of a correctional, rehabilitative custody.
It took so long because there is indeed an abiding primitiveness in human societies, one that is seated in the early societal experience of the species and in the human brain itself. That brain is composed of both primitive, emotive, action-driven parts shared with other mammals and even reptiles, and the remarkable and complex prefrontal cortices containing capabilities that make humans unique and – not to put too fine a point on it – genuinely human.
“An eye for an eye”, even if it is intended to restrain a visceral anger on the part of the aggrieved, is still a far less evolved principle of justice than those achieved at great cost and over long centuries by Western civilization. And if it is interpreted to mean that one tort justifies another tort in return, then it is truly a regressive throw-back to a darker era of human history and society.
How such a regressive principle found its way back into a primary role in Western – or at least American - justice in the past few decades is a troubling question indeed. Surely the ‘war’ and ‘emergency’ mentality, and the sustained phenomenon of mania – endorsed and supported by the government itself – must bear no small responsibility.
But it also reflects, I would say, a genuine decline in the moral maturity of the Citizenry.
And, since morality and psychology are intertwined in the stunning (and marvelous) complexity of the human being, then a genuine decline in the psychological maturity of the Citizenry as well.
And again, the causes for this alarming development are no doubt numerous, and represent consequences both purposely intended and negligently unintended.
You can take your pick which is more or less disturbing: Citizens and legislators who purposely intend such consequences, or Citizens and legislators who didn’t bother to think things through in such grave matters – or perhaps didn’t see the decline as that ‘grave’ an issue at all.
I think it has to be said that the German people made the same type of descent in the 1930s, and many of them must have been shocked at their own record of passive complicity, once they got a good slap upside the head from the invading ‘consequences’ that marched into their homeland as a result of what they had gone along with in the previous twelve years.
But nobody is going to provide that rehabilitative ‘slap upside the head’ to Us . Just as there is no ‘new world’ that is going to come to Our rescue as We went to the rescue of Occupied Europe, so too there is no force on earth that is going to come over here and present Us with an inescapable demand to look long and hard at what has been done on Our watch.
We shall have to face Ourselves on the basis of Our own mature acceptance of responsibility for Our actions. (Which is a bit of excellent advice that must now be given not only to genuine criminal offenders, but to all the Citizenry, who are heirs and stewards of the Constitutional vision entrusted to Us by the Framers.)
After all, in a democracy and a republic, the buck stops with The People. Not with the President as some sort of fantasized national daddy (or mommy) figure, not with the legislators or the judges (though they have their own responsibilities in all of this) … No, the buck stops with The People. It is only on Our authority that the Branches of the government carry out their plans and policies.
So everybody should have on their desk the little sign that Harry Truman had on his: “the buck stops here”.
I recall that scene – always very significant for me – in the final film of “The Lord of the Rings” movies, where the Returning King enters the realm of the dead and unfaithful souls to offer them a last great chance to redeem their previous infidelity: “What say you?” he demands of them, after he has issued his call.
“What say you?”
That locale, you may recall, has one of the strictest legal systems in the developed world – they achieved some notoriety a while back for caning somebody as a court-imposed punishment.
A site there has a Post objecting to the proposal to start up a sex-offender registry. “The call for a sex-offender registry should never have materialized” says the author, presumably a Singaporean citizen.
With admirable clarity and directness the author hits two major points right off: Such a registry (apparently with all the online availability to the public) would constitute “an infringement of human rights and personal dignity” and it would deprive “them of a second chance in life” as well as open “the floodgates for discrimination”.
A shame – I say – that We have to hear this from somebody in a sovereignty that still canes its convicts. It’s a sign of Our national civic regression and decline, a falling-away from the Constitutional ethos bequeathed to Us by the Framers.
What has happened here? What has happened to Us?
Without subscribing overtly to the Christian sense of forgiveness – based, I might add, on the acute awareness that nobody but nobody is ‘pure’ and everybody without exception fails to live up to his or her ideals – the Framers still sought to prevent the ‘tagging’ of citizens by the government. Such a power in the hands of a government – itself composed of imperfect individuals, as the Framers saw, and in more modern times hugely susceptible to bureaucratic dynamics and the operating characteristics of a mass society – could not be safely countenanced in their vision of American society.
And without subscribing overtly to the Christian sense of redemption and the rehabilitation of genuine penitence, the Framers saw as a practical matter that it would be lethally unwise to create one (and, of course, given the way these things tend to multiply and expand, several) groups of second-class Citizens who are officially declared to be unworthy of Constitutional protections and the right to pursue a civic and personal life. (And, of course, the Nazi practices of officially colored-starring certain groups and official declarations of being a ‘life unworthy of life” (ein Unlebendwurdigesleben) come queasily to mind.)
Such government practice, they no doubt saw, would create fatal divisions among the Citizenry and create unstable fractures in the body politic that would eventually undermine the legitimacy of the government itself. And, as Madison saw and Justice Stein recalled in his Dissent in the Poritz case, it would constitute a violation of the fundamental social compact itself.
Justice Stein was profoundly right to observe that such gravely dangerous precedents should not be established lightly, if at all.
But the author of the Post then goes on to raise a third telling point: s/he recalls the “old adage” that “an eye for an eye and the whole world goes blind”.
Which is itself a profound bit of political and moral wisdom.
"An eye for an eye": there is a strain in the Old Testament that embraces this primitive concept. In a world of tribal divisions, with no central police authority and no court system, the rough ‘justice’ of punishing and deterring by inflicting – in the earliest time literally – an equal physical tort to the one suffered by one tribe or clan member as a consequence of the actions of another.
Even if the prescription was meant as a limitation – if you suffered the loss of an eye, you cannot inflict on the tort-feasor the loss of two eyes or eyes and limbs or even death – it still represents a primitive level of ‘justice’ that ‘civilized’ societies of later times grew beyond.
The development of Christianity provided the conceptual basis for a sense of law and justice that recognized the possibility of rehabilitation, and even more deeply the awareness that just as all members of a society are sinners, then all are equally guilty before God but also equally eligible for forgiveness.
This is not to say that since all are guilty of something, then nobody is guilty of any particular act – but rather that just as God tempers justice with mercy, so should God’s children do so to each other. But the requirement for genuine penitence and a resolution to change one’s offending ways remained as well.
As Western societies developed, those concepts about ‘sin’ and ‘sinfulness’ were assumed into the development of law and crimes. But it took a long time to achieve that development – and in the West it was not until the 18th century and even later that governments both established a reliable police and criminal justice system and also accepted the responsibility of a correctional, rehabilitative custody.
It took so long because there is indeed an abiding primitiveness in human societies, one that is seated in the early societal experience of the species and in the human brain itself. That brain is composed of both primitive, emotive, action-driven parts shared with other mammals and even reptiles, and the remarkable and complex prefrontal cortices containing capabilities that make humans unique and – not to put too fine a point on it – genuinely human.
“An eye for an eye”, even if it is intended to restrain a visceral anger on the part of the aggrieved, is still a far less evolved principle of justice than those achieved at great cost and over long centuries by Western civilization. And if it is interpreted to mean that one tort justifies another tort in return, then it is truly a regressive throw-back to a darker era of human history and society.
How such a regressive principle found its way back into a primary role in Western – or at least American - justice in the past few decades is a troubling question indeed. Surely the ‘war’ and ‘emergency’ mentality, and the sustained phenomenon of mania – endorsed and supported by the government itself – must bear no small responsibility.
But it also reflects, I would say, a genuine decline in the moral maturity of the Citizenry.
And, since morality and psychology are intertwined in the stunning (and marvelous) complexity of the human being, then a genuine decline in the psychological maturity of the Citizenry as well.
And again, the causes for this alarming development are no doubt numerous, and represent consequences both purposely intended and negligently unintended.
You can take your pick which is more or less disturbing: Citizens and legislators who purposely intend such consequences, or Citizens and legislators who didn’t bother to think things through in such grave matters – or perhaps didn’t see the decline as that ‘grave’ an issue at all.
I think it has to be said that the German people made the same type of descent in the 1930s, and many of them must have been shocked at their own record of passive complicity, once they got a good slap upside the head from the invading ‘consequences’ that marched into their homeland as a result of what they had gone along with in the previous twelve years.
But nobody is going to provide that rehabilitative ‘slap upside the head’ to Us . Just as there is no ‘new world’ that is going to come to Our rescue as We went to the rescue of Occupied Europe, so too there is no force on earth that is going to come over here and present Us with an inescapable demand to look long and hard at what has been done on Our watch.
We shall have to face Ourselves on the basis of Our own mature acceptance of responsibility for Our actions. (Which is a bit of excellent advice that must now be given not only to genuine criminal offenders, but to all the Citizenry, who are heirs and stewards of the Constitutional vision entrusted to Us by the Framers.)
After all, in a democracy and a republic, the buck stops with The People. Not with the President as some sort of fantasized national daddy (or mommy) figure, not with the legislators or the judges (though they have their own responsibilities in all of this) … No, the buck stops with The People. It is only on Our authority that the Branches of the government carry out their plans and policies.
So everybody should have on their desk the little sign that Harry Truman had on his: “the buck stops here”.
I recall that scene – always very significant for me – in the final film of “The Lord of the Rings” movies, where the Returning King enters the realm of the dead and unfaithful souls to offer them a last great chance to redeem their previous infidelity: “What say you?” he demands of them, after he has issued his call.
“What say you?”
Friday, September 25, 2009
CITIZENS SKILLS AND SEX OFFENSE MANIA
CITIZENS SKILLS AND SEX OFFENSE MANIA
(I just put up a shorter version of this Post on my other site. I am putting it up here with specific SO community points added. It may seem a bit of deeper background than you usually encounter on SO sites, but I always think it’s a good idea to have a larger and deeper picture of what’s going on and how we got here.
Also, on my other site I always capitalize the personal pronouns when referring to the American Citizenry: so ‘We’ and ‘Our’ are not typos; they are capitalized to show respect for the dignity of The People, which means Us.)
There’s been a spate of concern about the decline of newspapers and also of critical thinking (I’ll link to those articles below).
I see these dots as connected.
Alex S. Jones has written a book about the decline of newspapers, in a world that “is fast becoming a wild, manipulative clamor of information, without reliable filters, trustworthy actors, or agreed-upon rules”. He seems to be going for the point that the problem is that folks are too distracted by the huge moosh of internet ‘information’ and that they should get back to newspapers – which is where the serious and professional reporting is done, by seasoned press veterans who dig for a story and give you their best shot at what’s going on, so that you as the Citizenry can make up your own minds.
Well, yes – and no – but mostly no.
Yes. The internet is a distracting cornucopia of facts, factoids, spin masquerading as facts, opinion along a spectrum from spontaneous bar-room bluster to serious and acute cogitation. The problem facing the average reader (to the extent that there are readers at this point) is in many ways the same as that which faces military intelligence officers: how to wade into the flood of stuff and select the ‘alpha stream’ – the most important and relevant material that will give you information, or at least clues, as to what is going on ‘over there’ and ‘out there’ and ‘up there’.
But the media aren’t really in that business any longer. The economics of ‘business’ in journalism has resulted in professional reporting being gutted by owners looking at the bottom line, unwilling to alienate ‘paying customers’. ‘Balance’ thus has become a code word for the paper not taking a position that will cost it readers (and thus advertising income); easier to hire inexperienced desk-hounds who won’t tread on any toes, but instead will accept faxes from this or that interested party’s PR folks and – with some input from above – snip and clip the faxes into a ‘story’ that corresponds to the paper’s alliances and interests at the moment.
And all ‘players’ and all ‘parties’ now have PR flaks and lobbyists – the Right’s ‘patriots’, the Left’s ‘advocates’, the corporations and the ‘complexes’ and ‘iron triangles’ of corporate interests, the government itself, and all the competing branches and agencies of the government (not excluding the Supreme Court). And none of them are paid to put ‘truth’ above their employers’ interests.
But then, according to the insidiously useful postmodern insight (lifted whole from Pontius Pilate, though without attribution) there really is no ‘truth’, no Truth, no objective fact – so since Life itself is basically mushy clay, then what’s the problem with trying to shape the stuff the way your bosses want it shaped?
“And what is Truth?” asked the Roman bureaucrat, back in the days when that empire held sway over a hefty chunk of the known world. Human affairs, the affairs of this dimension, cannot allow themselves to be bounded, limited, hedged in, or – the outrage! – judged, by any larger criterion. Surely not be great States and Great Powers.
And nowadays, thanks to postmodernism, not by individuals either. Power is all. Political power is the only arbiter – and the coercive force to enforce it. This has been true in this country as in all others. And in the past forty-plus years, it has become accepted, ‘normalized’, with a dismayingly increasing intensity and scope. The Left – self-indentured to the revolutionary content and methods of post-1965 Identity ideology – invited this vampire in the national front door, rather than keep it skulking around in the yard as the Framers had hoped their Constitutional ethos would ensure. And then the Right – seeing that all the old constraints had been discarded as ‘quaint’ and ‘oppressive’ – joined in the dark welcome. But ‘maturity’ – personal and civic – had to go as the condition of the vampiric welcome.
And the manner of it, I would say, is on this wise:
“Polarizing political talk, overwrought in the extreme, is making big headlines these days” observes a ‘New York Times’ writer. Correctness – ‘political’ mostly on the Left, ‘patriotic’ mostly on the Right. It is a symptom even more than it is a problem. A symptom of something much worse, much more insidious, much more lethal.
Diane Ravitch recently noted this: she decries “the latest fad to sweep K-12 education [which] is called “21st Century Skills”. She wants “knowledge” to come back – some common knowledge that is and must be the basis for a shared cultural heritage – as Americans – that is indispensable for a national culture and – can anyone be surprised? – a national political ethos. Which in Our case would be not only the ‘American’ ethos but the Constitutional ethos (which you may have noticed has been slip-sliding away at a sickeningly increasing rate these past few decades).
Especially in light of the Poritz case, about which I have Posted a series of extended comments on this site, it should be clear that a great deal of what drives the sex-offense mania and its laws reflects an un-thinking acceptance by the public of whatever is put forth as ‘constitutional’ by the government and the elites. But it should be clear now that what is claimed to be well within the range of genuine American tradition ain’t necessarily so. The Citizenry has lost much of its ability to think things through, and has been relying far too much on what it’s told and then moving on to other things.
In his 1995 book “The Next American Nation” Michael Lind acutely observed that Multiculturalism – now the Beltway’s conceptual framework of indenture to the mutant ‘liberalism’ of the post-1965 era – directly rejects the concept of any ‘American’ culture and ethos whatsoever, and any ‘melting pot’ approach to assimilation – that ‘melting pot’ approach which took all the immigrant cultures of the American past and molded them into a remarkable alloy called ‘American’. *
Instead the Multicultural approach demands that no ‘assimilation’ can be or should be continued. It’s all ‘oppressive’. Instead, American society is to be a ‘salad’ of distinct cultures, all of them ‘equal’ and retaining in common only the political clout – assisted by a preferential government – that protects each sub-culture’s distinctness and suppresses any thoughts or discussion, any public and civic deliberation, as to whether each sub-culture’s folkways and folk-thoughts are compatible with the national ethos. There IS no national ethos, intone the Multiculturalists.
And do We expect that any nation “so conceived and so dedicated” can long endure?
Fifteen years ago Lind called the post-1965 era the “Second Radical Reconstruction” (the first being the North’s efforts – laudable in their intention, not so much in their implementation – to ‘reconstruct’ the post-Civil War South). A century later Washington tried it again – against the whole country, its culture and its ethos. But you couldn’t actually say that out loud either. Such assessments could not be publicly and civicly spoken out loud. It wasn’t Correct.
How did We get here?
I’ll go back to 1896 here. In that year Gustav Le Bon, a (now-) dead white European male, wrote a book entitled “A Study of the Popular Mind”. The text is here.
He was looking at the phenomenon of ‘crowds’ and the ‘mass mentality’ developing in the urbanized nations of Europe in the maturing Industrial Age. Something happens to people when they are in the presence of a ‘crowd’, when they are compressed into a ‘mass’. They don’t think well. They seem to regress into a more emotional** mode of processing information.
Developmentally, human beings don’t have biological access to their full human capacities – their best capacities – until early adulthood. The prefrontal cortex – seat of all those abilities to reflect, postpone emotional responses in order to assess and deliberate in the brain – takes that long to develop. It is for this reason that children and teens are so unpredictable and inconsistent yet also so easily ‘worked up’: they are relying on the more primitive brainparts – especially the amygdala – to process information and experiences.
And the amygdala – seat of the fight-or-flight response, among other things – is that part of the brain that relies on immediate ‘judgments’ based on visceral emotions. *** Delaying gratification, postponing action in favor of deliberation, thinking things through – all these things are the fruits of the prefrontal cortex, and precisely opposed to the amygdala’s insistent demand that something be done RIGHT NOW.
The current and perceptive commentator Henry Giroux notes that “language loses any viable sense of referentiality, while lying, misrepresentation and the deliberate denial of truth [have] become acceptable practices firmly entrenched in the Wild West of talk-radio, cable television, and the dominant media”. Yes, it has.
Le Bon’s insights – and they are numerous and densely interconnected – were not lost on one Edward Bernays, a Swiss countryman of Le Bon, who realized that such emotionality could be tapped in order to advertise the Industrial Age’s developing cornucopia of products available for sale to those now-employed urban working masses and the rising middle-classes, the ‘bourgeois’ bugbears of the Boomer Age.
Within that same timeframe the American Progressives – well-intentioned all – saw that the emotional masses of citizens would need to be guided even more than educated. They were – to use Walter Lippman’s ominous phrase – “a blundering herd”, which took Jesus’s insight about “sheep without a shepherd” in a wholly ominous direction – especially in terms of the Constitutional Republic and the American ethos.
And this ‘elite guidance’ would be manifested not only in do-good domestic reforms of the Age, but also in Teddy Roosevelt’s and Woodrow Wilson’s approach to foreign policy. And even before Teddy (R, not K) his predecessor McKinley – having taken to his knees in the White House one night – decided that God himself wanted America to ‘Christianize’ the benighted peoples of Cuba and – much more importantly – the Phillippines (who had been in great part Catholic for centuries).
Thus, with Cuba as the pretext for the Spanish-American war, McKinley immediately sent America’s first big overseas military expedition – ten thousand troops – to the Phillippines to convert Admiral Dewey’s victory over the puny Spanish squadron in Manila Bay into a full-scale American imperium, not liberating the Filipinos but rather replacing the doddering, centuries-old Spanish imperium with a more modern imperial master, who would be that much closer to the vast markets of China and the ‘Open Door’ – as the newly Westernizing Japanese nation noted acutely if quietly. (We were not, you may recall, greeted as liberators, and had to fight a nasty jungle war to bring Our blessings to natives who had the temerity to resist.)
Nor was all this lost a couple-three decades later when a certain little madman with a moustache came to power in Germany, ably assisted by his brilliant propaganda genius, Josef Goebbels. The citizenry was not needed to deliberate and govern the government – not at all. The citizenry’s role was to be whipped up, its opinion shaped by government propaganda into the proper support of whatever it was that the government thought was good for them and for their nation (Ger: Reich).
It should come as a surprise to nobody that this approach to the government’s shaping of public opinion was profoundly inimical to any genuinely democratic politics, and to any possibility of a Constitutional Republic. Hitler, you recall, destroyed one – the Weimar Republic – in an act of ‘creative destruction’ in order to make room for his Third Reich, that marvelous engine of progress and brute force that would last a thousand years and bring a New Order to Europe and the world. Well, except for that part of the world ably administered by the Greater East Asia Co-Prosperity Sphere. And that part – ludicrously – administered rather less ably by Mussolini’s reincarnation of the Roman Empire.
But at the end of World War Two, with the Soviets invited over the front door into the heart of Europe – ably directed by that vampire of all vampires, the one with the even bigger moustache, the American ‘elite’ realized that they would have to “scare hell out of the American people” in order to continue the marvelous hegemony of which Washington now found itself the master.
And once the Beltway got used to the whole idea of riding herd on that “blundering herd”, then after 1965, with the Boomers in the saddle and so much ‘good’ to be done – and done right now – they didn’t approach the American Citizenry with proposals for public deliberation, but rather borrowed from the Le Bon-Bernays-Goebbels Playbook .
Of course, with all the ‘revolutionary’ excitements of Mao’s Cultural Revolution and its ‘hundred flowers blooming’, and postmodernism’s assertion that there is no Power on earth except that which flows from the barrel of a gun or the voting booth (if the votes are cast by a suitably Correct citizenry or else imposed upon them by suitably enlightened elites) … well, you can see where things have gone.
And then factor in that humans are very similar to tuning forks and cattle: in large bunches, when functioning at the lower end of our range, it only takes one to set everybody else off. That’s why Our politics in the past few decades have come to resemble something between a mob-scene from the old movies and a series of stampedes. Come to think of it, that’s probably why now Our elected representatives, tax-paid hired ‘experts’, and variously credentialed elites walk by Us as if We were the herd in the background of a John Wayne ranch scene.
It was ominous – as Alexander Cockburn notes recently on Counterpunch – that the 1970s saw the decline of genuinely reportorial journalism and the growth of ‘personality journalism’ and ‘soft news’. This was a perfectly logical development – in the guidelines of that Playbook – because it would be quicker to distract folks from the ‘hard news’ of public Reality and sink them into the more confined prisons of their own emotionality and their personal, private ‘worlds’. So public discourse sank into emotionalism.
And – as many note today – such emotions soon took an ugly turn. As they had to – since Goebbels himself had a rather ugly vision of ‘citizens’ and their relationship to government. Let them sink into their lesser potentials, wrestle with their own personal pillows, rather than have them trying to have a say in what their governmental elites have already determined was good for them.
But before the Republicans under Atwater and the Reagan-era American ‘morning’, there was the Politically Correct civic thuggery of squashing ‘backlash’ to what clearly had to be accepted as the Coming Thing of this or that post-1965 imposition. And ‘1968’ simply erected the whole thing into a Good Thing and the only acceptable Good Thing – no dissent to be tolerated, no debate necessary.
You can see here where the lack of ability to use those marvelous prefrontal skills, and the consequent reliance on emotions, especially seated in that wayyy too simplistic amygdala and its anxiety-driven emotional surges, have played a lethal role in fueling the sex-offense mania.
So add all these elements together: First, in a Multicultural hash of groups where there is no common thread of ‘American’ culture or heritage that unites them, what will serve to unite folks? A ‘war’ and an ‘emergency’ is always a good – though negative and tremendously costly – starting point; second, an ‘enemy other’ who is dangerous, incorrigible, and – even more! – hiding among the ‘good’ citizens and just waiting to pounce; third, among a public now comprised of far too many individuals who are either unfamiliar with the Constitutional ethos, or are too young to process information beyond the level of their amygdala – and this now includes generations of chronological adults who have simply never been raised into their higher human abilities (those prefrontal cortex capacities); which leads to fourth, an ‘iron triangle’ of sensationalist media, eager legislators, compliant courts – all of which rely on ‘experts’ who consider it perfectly OK to churn out inaccurate and grossly untruthful ‘science’ and ‘numbers’ ... and you can see where the elements of a mania have converged.
Furthermore: take Michael Lind’s idea in his 1995 book of 1995 that the elites and ‘overclasses’ are purposely seeking to distract the public with various excitements in order to continue their process of enriching themselves. (I’ll be Posting on Lind’s book.)
This is all wayyy too much combustible potential – a wildfire of gargantuan proportions is going to result. An ‘emergency’ and a ‘war’ on stranger-danger ‘sex offenders’, justified by grossly inaccurate ‘science’ and amplified by sensationalist and misleading ‘reporting’ – this is the result, and no doubt from an ‘elite’ point of view, the whole things seems ‘logical’ and do-able without any adverse consequences … except to the sex-0ffenders who are monsters anyway.
And recall that I had mentioned several times in the series of Posts on the Poritz case that the Nazis – with their characteristic Germanic acuity – had quickly realized that in order to do this thing right, you had to tag each targeted individual (the colored-star tactic). Ohio, I read recently, is still trying to require registered sex-offenders to carry specially-colored license plates on their personal cars (or perhaps any vehicle that they have access to and might drive).
Try to imagine how that scenario would work out: when you’re in traffic, is there any reason to know that the car next to you or ahead of you or behind you belongs to a registered sex-offender? And what if the driver is a family member but not the offender himself? If you are pulling into a parking lot, will you avoid parking next to such a vehicle? If you are getting out of your car and such a tagged vehicle tries to park in the slot beside you, will you call the police – just to be prudent?
Granted that there have been a very few cases where heinous crimes have been committed involving vehicles, does that justify such a gross (and dangerous) expansion of government police power? Nor should We forget that these precedents, once adopted, are not only difficult to reverse, but equally difficult to contain – these types of policy tend to expand … just as We have seen with the post-1994 continuing intensification of sex-offender restrictions and laws.
It’s not only that far too many folks are letting their feelings run away with them (and their legislators are figuring to surf those dangerous waves). It’s that folks aren’t thinking for themselves when presented with the clearly incoherent and highly dubious ‘science’ and ‘figures’ that are asserted to support the ‘emergency’ of hordes of monstrous and incorrigible stranger-danger sex-offenders envisioned to be stalking the country looking for untended children.
Hidden in the dust clouds that are raised by the stampedes, the Constitution is being dismantled – not overtly, but by mutation. And that mutation bears all the classic hallmarks of a much darker age of human political arrangements, ones that We might have thought to be gotten rid of in 1945 and in 1991 (when the Soviet Union collapsed).
Whether your ‘treason’ was to the Left’s ‘Dream’ or to the Right’s ‘patriotism’ was purely secondary. The entire deliberative civic process was squashed. And new generations of youth and masses of immigrants would be so formed.
And here We are.
Le Bon was right, and possibly more so than he realized.
Nor is such a destiny in Our ‘stars’. It’s in Our brains – human maturity is a fragile if dynamic thing, nor is it guaranteed. It takes a society, a culture, an ethos to support the biological development of the brain with a healthy and indispensable encouragement of all the best potentials in the human repertoire.
A Citizenry raised on nothing but the noxious brew of Goebbelsian manipulation and postmodernism’s brutalizing developmental Flatness and regression, the stultification of the growth of the genuine potential of the human spirit, is not simply going to ‘plateau’ at some regressed level of development. No, it is going to descend into the maelstrom of its own lesser – and worst – potentials.
Nor is any sort of collective tribalism – rather than a support for genuine individual development – going to work for Us. Identity Politics reduces the human individual to mere membership in a collective – one’s Identity – and then Multiculturalism goes further and insists that there is no American ethos to which any new members of the national community must adapt themselves (there is, after all, no national community at all in the Multicultural view of things). And a government too certain of tis own elite superiority is not going to have any use for mere citizens anyway.
We are becoming worse than a Volk. We are becoming a hodgepodge of several Volks, united only by Our common occupation of the same geographic national territory, and bound only by the iron hoops which this or that Identity’s political clout can manage to forge – with the help of a Beltway that sees the American citizenry merely as a gaggle of tax-paying donkeys sunk in their own internecine squabbles and personal excitements. And all the while the Beltway and their assorted overclasses continue to take advantage of Our fevered distractions, ensuring their own enrichment as the country, the Citizenry, and the very American ethos itself, unravel and dissolve. This cannot end well for anybody.
And every Volk needs a Volksfeind, an enemy of the people – preferably a monstrous and unnatural one, not far away, bent on the people’s destruction. And when you’re dealing with an entire people, then that enemy must preferably be some bunch of ‘other’ people: the Poles, the Czechs, the gypsies, the lives-unworthy-of-life, the Slavs, the Jews – they were all so designated by that monstrous government of the Hitler’s, whose baleful influence and example clearly outlasted the twelve years of the Thousand-Year Reich.
We need to stand up on the only two hind legs We have and remind the Beltway – and the world – of just what an American Citizenry can be.
It is in that sense – and that sense only – that We can rise and prevail. Or else We shall surely fall together, sex offenders and ‘decent’ folk, as it were – into a night from which, once upon a time, in what now seems a galaxy long ago and far away, We were delivered in that bright shining Moment two-hundred and thirty-three years ago.
This is the fierce urgency of Now.
NOTES
*I’ll be Posting on this remarkable book shortly.
**I don’t agree with Le Bon’s analogy that this very real emotionalism equates with ‘feminine’ processing – and he veers into referring to it as “hysterical”, opposing it to a more “masculine rationality”. There is indeed a ‘hysterical’ potential in human beings, but it is not a ‘feminine’ as opposed to a ‘masculine’ potential. Males are equally as liable to ‘hysteria’ and I’ll explain that above in the text of the Post. Freud, somewhat a contemporary of Le Bon, was getting around to that insight – although it was not widely accepted and has never received the wide discussion it deserves.
But that being said, Le Bon’s insights as to the dynamics and consequences of this ‘hysterical’ or overly emotional human mode of processing information are hugely valuable, and historically came to play a huge role in subsequent political developments in the early 20th century and beyond. And those dynamics bethump Us even unto now.
***Which gets you to wondering if a youth-determined society is such a good idea. The Boomers in their salad days were not in full possession of their highest brain capacities – which is par for the course with late-teens. But then, of course, they erected their deficits into an operating philosophy that came to insist that ‘maturity’ and ‘adulthood’ were ‘oppressive’ and ‘up tight’, un-creative and altogether fuddy-duddy.
And so, under the auspices of the youth-addled and vote-addled Democrats, ‘maturity’ and ‘adulthood’ and a whole host of related concepts went out the window and overboard. And only now are We coming to see just exactly what else went overboard with them.
But such a ‘youthful’ ethos proved hugely useful to consumerist corporations seeking to entice immediately gratifying purchases for the latest fads and governments – oy gevalt! – seeking to manipulate the ‘public opinion’ of their citizenries and drive – or stampede – the herd in the direction thought best for it.
Clearly, a Party – and later a Beltway – eager to forget its screw-ups and mismanagement of national affairs, and eager to impose a new ethos that would ‘forget’ the Past and embrace not the Reality of what was happening but rather the ‘Dream’ of what will most surely come about if everybody just kept their mouth shut and went along … clearly, such a youthy descent into emotionalism would be of no small use. And so it is today, as the Boomers are now followed by generations of children who have been raised without the opportunity to genuinely mature as full human beings (and Citizens).
(I just put up a shorter version of this Post on my other site. I am putting it up here with specific SO community points added. It may seem a bit of deeper background than you usually encounter on SO sites, but I always think it’s a good idea to have a larger and deeper picture of what’s going on and how we got here.
Also, on my other site I always capitalize the personal pronouns when referring to the American Citizenry: so ‘We’ and ‘Our’ are not typos; they are capitalized to show respect for the dignity of The People, which means Us.)
There’s been a spate of concern about the decline of newspapers and also of critical thinking (I’ll link to those articles below).
I see these dots as connected.
Alex S. Jones has written a book about the decline of newspapers, in a world that “is fast becoming a wild, manipulative clamor of information, without reliable filters, trustworthy actors, or agreed-upon rules”. He seems to be going for the point that the problem is that folks are too distracted by the huge moosh of internet ‘information’ and that they should get back to newspapers – which is where the serious and professional reporting is done, by seasoned press veterans who dig for a story and give you their best shot at what’s going on, so that you as the Citizenry can make up your own minds.
Well, yes – and no – but mostly no.
Yes. The internet is a distracting cornucopia of facts, factoids, spin masquerading as facts, opinion along a spectrum from spontaneous bar-room bluster to serious and acute cogitation. The problem facing the average reader (to the extent that there are readers at this point) is in many ways the same as that which faces military intelligence officers: how to wade into the flood of stuff and select the ‘alpha stream’ – the most important and relevant material that will give you information, or at least clues, as to what is going on ‘over there’ and ‘out there’ and ‘up there’.
But the media aren’t really in that business any longer. The economics of ‘business’ in journalism has resulted in professional reporting being gutted by owners looking at the bottom line, unwilling to alienate ‘paying customers’. ‘Balance’ thus has become a code word for the paper not taking a position that will cost it readers (and thus advertising income); easier to hire inexperienced desk-hounds who won’t tread on any toes, but instead will accept faxes from this or that interested party’s PR folks and – with some input from above – snip and clip the faxes into a ‘story’ that corresponds to the paper’s alliances and interests at the moment.
And all ‘players’ and all ‘parties’ now have PR flaks and lobbyists – the Right’s ‘patriots’, the Left’s ‘advocates’, the corporations and the ‘complexes’ and ‘iron triangles’ of corporate interests, the government itself, and all the competing branches and agencies of the government (not excluding the Supreme Court). And none of them are paid to put ‘truth’ above their employers’ interests.
But then, according to the insidiously useful postmodern insight (lifted whole from Pontius Pilate, though without attribution) there really is no ‘truth’, no Truth, no objective fact – so since Life itself is basically mushy clay, then what’s the problem with trying to shape the stuff the way your bosses want it shaped?
“And what is Truth?” asked the Roman bureaucrat, back in the days when that empire held sway over a hefty chunk of the known world. Human affairs, the affairs of this dimension, cannot allow themselves to be bounded, limited, hedged in, or – the outrage! – judged, by any larger criterion. Surely not be great States and Great Powers.
And nowadays, thanks to postmodernism, not by individuals either. Power is all. Political power is the only arbiter – and the coercive force to enforce it. This has been true in this country as in all others. And in the past forty-plus years, it has become accepted, ‘normalized’, with a dismayingly increasing intensity and scope. The Left – self-indentured to the revolutionary content and methods of post-1965 Identity ideology – invited this vampire in the national front door, rather than keep it skulking around in the yard as the Framers had hoped their Constitutional ethos would ensure. And then the Right – seeing that all the old constraints had been discarded as ‘quaint’ and ‘oppressive’ – joined in the dark welcome. But ‘maturity’ – personal and civic – had to go as the condition of the vampiric welcome.
And the manner of it, I would say, is on this wise:
“Polarizing political talk, overwrought in the extreme, is making big headlines these days” observes a ‘New York Times’ writer. Correctness – ‘political’ mostly on the Left, ‘patriotic’ mostly on the Right. It is a symptom even more than it is a problem. A symptom of something much worse, much more insidious, much more lethal.
Diane Ravitch recently noted this: she decries “the latest fad to sweep K-12 education [which] is called “21st Century Skills”. She wants “knowledge” to come back – some common knowledge that is and must be the basis for a shared cultural heritage – as Americans – that is indispensable for a national culture and – can anyone be surprised? – a national political ethos. Which in Our case would be not only the ‘American’ ethos but the Constitutional ethos (which you may have noticed has been slip-sliding away at a sickeningly increasing rate these past few decades).
Especially in light of the Poritz case, about which I have Posted a series of extended comments on this site, it should be clear that a great deal of what drives the sex-offense mania and its laws reflects an un-thinking acceptance by the public of whatever is put forth as ‘constitutional’ by the government and the elites. But it should be clear now that what is claimed to be well within the range of genuine American tradition ain’t necessarily so. The Citizenry has lost much of its ability to think things through, and has been relying far too much on what it’s told and then moving on to other things.
In his 1995 book “The Next American Nation” Michael Lind acutely observed that Multiculturalism – now the Beltway’s conceptual framework of indenture to the mutant ‘liberalism’ of the post-1965 era – directly rejects the concept of any ‘American’ culture and ethos whatsoever, and any ‘melting pot’ approach to assimilation – that ‘melting pot’ approach which took all the immigrant cultures of the American past and molded them into a remarkable alloy called ‘American’. *
Instead the Multicultural approach demands that no ‘assimilation’ can be or should be continued. It’s all ‘oppressive’. Instead, American society is to be a ‘salad’ of distinct cultures, all of them ‘equal’ and retaining in common only the political clout – assisted by a preferential government – that protects each sub-culture’s distinctness and suppresses any thoughts or discussion, any public and civic deliberation, as to whether each sub-culture’s folkways and folk-thoughts are compatible with the national ethos. There IS no national ethos, intone the Multiculturalists.
And do We expect that any nation “so conceived and so dedicated” can long endure?
Fifteen years ago Lind called the post-1965 era the “Second Radical Reconstruction” (the first being the North’s efforts – laudable in their intention, not so much in their implementation – to ‘reconstruct’ the post-Civil War South). A century later Washington tried it again – against the whole country, its culture and its ethos. But you couldn’t actually say that out loud either. Such assessments could not be publicly and civicly spoken out loud. It wasn’t Correct.
How did We get here?
I’ll go back to 1896 here. In that year Gustav Le Bon, a (now-) dead white European male, wrote a book entitled “A Study of the Popular Mind”. The text is here.
He was looking at the phenomenon of ‘crowds’ and the ‘mass mentality’ developing in the urbanized nations of Europe in the maturing Industrial Age. Something happens to people when they are in the presence of a ‘crowd’, when they are compressed into a ‘mass’. They don’t think well. They seem to regress into a more emotional** mode of processing information.
Developmentally, human beings don’t have biological access to their full human capacities – their best capacities – until early adulthood. The prefrontal cortex – seat of all those abilities to reflect, postpone emotional responses in order to assess and deliberate in the brain – takes that long to develop. It is for this reason that children and teens are so unpredictable and inconsistent yet also so easily ‘worked up’: they are relying on the more primitive brainparts – especially the amygdala – to process information and experiences.
And the amygdala – seat of the fight-or-flight response, among other things – is that part of the brain that relies on immediate ‘judgments’ based on visceral emotions. *** Delaying gratification, postponing action in favor of deliberation, thinking things through – all these things are the fruits of the prefrontal cortex, and precisely opposed to the amygdala’s insistent demand that something be done RIGHT NOW.
The current and perceptive commentator Henry Giroux notes that “language loses any viable sense of referentiality, while lying, misrepresentation and the deliberate denial of truth [have] become acceptable practices firmly entrenched in the Wild West of talk-radio, cable television, and the dominant media”. Yes, it has.
Le Bon’s insights – and they are numerous and densely interconnected – were not lost on one Edward Bernays, a Swiss countryman of Le Bon, who realized that such emotionality could be tapped in order to advertise the Industrial Age’s developing cornucopia of products available for sale to those now-employed urban working masses and the rising middle-classes, the ‘bourgeois’ bugbears of the Boomer Age.
Within that same timeframe the American Progressives – well-intentioned all – saw that the emotional masses of citizens would need to be guided even more than educated. They were – to use Walter Lippman’s ominous phrase – “a blundering herd”, which took Jesus’s insight about “sheep without a shepherd” in a wholly ominous direction – especially in terms of the Constitutional Republic and the American ethos.
And this ‘elite guidance’ would be manifested not only in do-good domestic reforms of the Age, but also in Teddy Roosevelt’s and Woodrow Wilson’s approach to foreign policy. And even before Teddy (R, not K) his predecessor McKinley – having taken to his knees in the White House one night – decided that God himself wanted America to ‘Christianize’ the benighted peoples of Cuba and – much more importantly – the Phillippines (who had been in great part Catholic for centuries).
Thus, with Cuba as the pretext for the Spanish-American war, McKinley immediately sent America’s first big overseas military expedition – ten thousand troops – to the Phillippines to convert Admiral Dewey’s victory over the puny Spanish squadron in Manila Bay into a full-scale American imperium, not liberating the Filipinos but rather replacing the doddering, centuries-old Spanish imperium with a more modern imperial master, who would be that much closer to the vast markets of China and the ‘Open Door’ – as the newly Westernizing Japanese nation noted acutely if quietly. (We were not, you may recall, greeted as liberators, and had to fight a nasty jungle war to bring Our blessings to natives who had the temerity to resist.)
Nor was all this lost a couple-three decades later when a certain little madman with a moustache came to power in Germany, ably assisted by his brilliant propaganda genius, Josef Goebbels. The citizenry was not needed to deliberate and govern the government – not at all. The citizenry’s role was to be whipped up, its opinion shaped by government propaganda into the proper support of whatever it was that the government thought was good for them and for their nation (Ger: Reich).
It should come as a surprise to nobody that this approach to the government’s shaping of public opinion was profoundly inimical to any genuinely democratic politics, and to any possibility of a Constitutional Republic. Hitler, you recall, destroyed one – the Weimar Republic – in an act of ‘creative destruction’ in order to make room for his Third Reich, that marvelous engine of progress and brute force that would last a thousand years and bring a New Order to Europe and the world. Well, except for that part of the world ably administered by the Greater East Asia Co-Prosperity Sphere. And that part – ludicrously – administered rather less ably by Mussolini’s reincarnation of the Roman Empire.
But at the end of World War Two, with the Soviets invited over the front door into the heart of Europe – ably directed by that vampire of all vampires, the one with the even bigger moustache, the American ‘elite’ realized that they would have to “scare hell out of the American people” in order to continue the marvelous hegemony of which Washington now found itself the master.
And once the Beltway got used to the whole idea of riding herd on that “blundering herd”, then after 1965, with the Boomers in the saddle and so much ‘good’ to be done – and done right now – they didn’t approach the American Citizenry with proposals for public deliberation, but rather borrowed from the Le Bon-Bernays-Goebbels Playbook .
Of course, with all the ‘revolutionary’ excitements of Mao’s Cultural Revolution and its ‘hundred flowers blooming’, and postmodernism’s assertion that there is no Power on earth except that which flows from the barrel of a gun or the voting booth (if the votes are cast by a suitably Correct citizenry or else imposed upon them by suitably enlightened elites) … well, you can see where things have gone.
And then factor in that humans are very similar to tuning forks and cattle: in large bunches, when functioning at the lower end of our range, it only takes one to set everybody else off. That’s why Our politics in the past few decades have come to resemble something between a mob-scene from the old movies and a series of stampedes. Come to think of it, that’s probably why now Our elected representatives, tax-paid hired ‘experts’, and variously credentialed elites walk by Us as if We were the herd in the background of a John Wayne ranch scene.
It was ominous – as Alexander Cockburn notes recently on Counterpunch – that the 1970s saw the decline of genuinely reportorial journalism and the growth of ‘personality journalism’ and ‘soft news’. This was a perfectly logical development – in the guidelines of that Playbook – because it would be quicker to distract folks from the ‘hard news’ of public Reality and sink them into the more confined prisons of their own emotionality and their personal, private ‘worlds’. So public discourse sank into emotionalism.
And – as many note today – such emotions soon took an ugly turn. As they had to – since Goebbels himself had a rather ugly vision of ‘citizens’ and their relationship to government. Let them sink into their lesser potentials, wrestle with their own personal pillows, rather than have them trying to have a say in what their governmental elites have already determined was good for them.
But before the Republicans under Atwater and the Reagan-era American ‘morning’, there was the Politically Correct civic thuggery of squashing ‘backlash’ to what clearly had to be accepted as the Coming Thing of this or that post-1965 imposition. And ‘1968’ simply erected the whole thing into a Good Thing and the only acceptable Good Thing – no dissent to be tolerated, no debate necessary.
You can see here where the lack of ability to use those marvelous prefrontal skills, and the consequent reliance on emotions, especially seated in that wayyy too simplistic amygdala and its anxiety-driven emotional surges, have played a lethal role in fueling the sex-offense mania.
So add all these elements together: First, in a Multicultural hash of groups where there is no common thread of ‘American’ culture or heritage that unites them, what will serve to unite folks? A ‘war’ and an ‘emergency’ is always a good – though negative and tremendously costly – starting point; second, an ‘enemy other’ who is dangerous, incorrigible, and – even more! – hiding among the ‘good’ citizens and just waiting to pounce; third, among a public now comprised of far too many individuals who are either unfamiliar with the Constitutional ethos, or are too young to process information beyond the level of their amygdala – and this now includes generations of chronological adults who have simply never been raised into their higher human abilities (those prefrontal cortex capacities); which leads to fourth, an ‘iron triangle’ of sensationalist media, eager legislators, compliant courts – all of which rely on ‘experts’ who consider it perfectly OK to churn out inaccurate and grossly untruthful ‘science’ and ‘numbers’ ... and you can see where the elements of a mania have converged.
Furthermore: take Michael Lind’s idea in his 1995 book of 1995 that the elites and ‘overclasses’ are purposely seeking to distract the public with various excitements in order to continue their process of enriching themselves. (I’ll be Posting on Lind’s book.)
This is all wayyy too much combustible potential – a wildfire of gargantuan proportions is going to result. An ‘emergency’ and a ‘war’ on stranger-danger ‘sex offenders’, justified by grossly inaccurate ‘science’ and amplified by sensationalist and misleading ‘reporting’ – this is the result, and no doubt from an ‘elite’ point of view, the whole things seems ‘logical’ and do-able without any adverse consequences … except to the sex-0ffenders who are monsters anyway.
And recall that I had mentioned several times in the series of Posts on the Poritz case that the Nazis – with their characteristic Germanic acuity – had quickly realized that in order to do this thing right, you had to tag each targeted individual (the colored-star tactic). Ohio, I read recently, is still trying to require registered sex-offenders to carry specially-colored license plates on their personal cars (or perhaps any vehicle that they have access to and might drive).
Try to imagine how that scenario would work out: when you’re in traffic, is there any reason to know that the car next to you or ahead of you or behind you belongs to a registered sex-offender? And what if the driver is a family member but not the offender himself? If you are pulling into a parking lot, will you avoid parking next to such a vehicle? If you are getting out of your car and such a tagged vehicle tries to park in the slot beside you, will you call the police – just to be prudent?
Granted that there have been a very few cases where heinous crimes have been committed involving vehicles, does that justify such a gross (and dangerous) expansion of government police power? Nor should We forget that these precedents, once adopted, are not only difficult to reverse, but equally difficult to contain – these types of policy tend to expand … just as We have seen with the post-1994 continuing intensification of sex-offender restrictions and laws.
It’s not only that far too many folks are letting their feelings run away with them (and their legislators are figuring to surf those dangerous waves). It’s that folks aren’t thinking for themselves when presented with the clearly incoherent and highly dubious ‘science’ and ‘figures’ that are asserted to support the ‘emergency’ of hordes of monstrous and incorrigible stranger-danger sex-offenders envisioned to be stalking the country looking for untended children.
Hidden in the dust clouds that are raised by the stampedes, the Constitution is being dismantled – not overtly, but by mutation. And that mutation bears all the classic hallmarks of a much darker age of human political arrangements, ones that We might have thought to be gotten rid of in 1945 and in 1991 (when the Soviet Union collapsed).
Whether your ‘treason’ was to the Left’s ‘Dream’ or to the Right’s ‘patriotism’ was purely secondary. The entire deliberative civic process was squashed. And new generations of youth and masses of immigrants would be so formed.
And here We are.
Le Bon was right, and possibly more so than he realized.
Nor is such a destiny in Our ‘stars’. It’s in Our brains – human maturity is a fragile if dynamic thing, nor is it guaranteed. It takes a society, a culture, an ethos to support the biological development of the brain with a healthy and indispensable encouragement of all the best potentials in the human repertoire.
A Citizenry raised on nothing but the noxious brew of Goebbelsian manipulation and postmodernism’s brutalizing developmental Flatness and regression, the stultification of the growth of the genuine potential of the human spirit, is not simply going to ‘plateau’ at some regressed level of development. No, it is going to descend into the maelstrom of its own lesser – and worst – potentials.
Nor is any sort of collective tribalism – rather than a support for genuine individual development – going to work for Us. Identity Politics reduces the human individual to mere membership in a collective – one’s Identity – and then Multiculturalism goes further and insists that there is no American ethos to which any new members of the national community must adapt themselves (there is, after all, no national community at all in the Multicultural view of things). And a government too certain of tis own elite superiority is not going to have any use for mere citizens anyway.
We are becoming worse than a Volk. We are becoming a hodgepodge of several Volks, united only by Our common occupation of the same geographic national territory, and bound only by the iron hoops which this or that Identity’s political clout can manage to forge – with the help of a Beltway that sees the American citizenry merely as a gaggle of tax-paying donkeys sunk in their own internecine squabbles and personal excitements. And all the while the Beltway and their assorted overclasses continue to take advantage of Our fevered distractions, ensuring their own enrichment as the country, the Citizenry, and the very American ethos itself, unravel and dissolve. This cannot end well for anybody.
And every Volk needs a Volksfeind, an enemy of the people – preferably a monstrous and unnatural one, not far away, bent on the people’s destruction. And when you’re dealing with an entire people, then that enemy must preferably be some bunch of ‘other’ people: the Poles, the Czechs, the gypsies, the lives-unworthy-of-life, the Slavs, the Jews – they were all so designated by that monstrous government of the Hitler’s, whose baleful influence and example clearly outlasted the twelve years of the Thousand-Year Reich.
We need to stand up on the only two hind legs We have and remind the Beltway – and the world – of just what an American Citizenry can be.
It is in that sense – and that sense only – that We can rise and prevail. Or else We shall surely fall together, sex offenders and ‘decent’ folk, as it were – into a night from which, once upon a time, in what now seems a galaxy long ago and far away, We were delivered in that bright shining Moment two-hundred and thirty-three years ago.
This is the fierce urgency of Now.
NOTES
*I’ll be Posting on this remarkable book shortly.
**I don’t agree with Le Bon’s analogy that this very real emotionalism equates with ‘feminine’ processing – and he veers into referring to it as “hysterical”, opposing it to a more “masculine rationality”. There is indeed a ‘hysterical’ potential in human beings, but it is not a ‘feminine’ as opposed to a ‘masculine’ potential. Males are equally as liable to ‘hysteria’ and I’ll explain that above in the text of the Post. Freud, somewhat a contemporary of Le Bon, was getting around to that insight – although it was not widely accepted and has never received the wide discussion it deserves.
But that being said, Le Bon’s insights as to the dynamics and consequences of this ‘hysterical’ or overly emotional human mode of processing information are hugely valuable, and historically came to play a huge role in subsequent political developments in the early 20th century and beyond. And those dynamics bethump Us even unto now.
***Which gets you to wondering if a youth-determined society is such a good idea. The Boomers in their salad days were not in full possession of their highest brain capacities – which is par for the course with late-teens. But then, of course, they erected their deficits into an operating philosophy that came to insist that ‘maturity’ and ‘adulthood’ were ‘oppressive’ and ‘up tight’, un-creative and altogether fuddy-duddy.
And so, under the auspices of the youth-addled and vote-addled Democrats, ‘maturity’ and ‘adulthood’ and a whole host of related concepts went out the window and overboard. And only now are We coming to see just exactly what else went overboard with them.
But such a ‘youthful’ ethos proved hugely useful to consumerist corporations seeking to entice immediately gratifying purchases for the latest fads and governments – oy gevalt! – seeking to manipulate the ‘public opinion’ of their citizenries and drive – or stampede – the herd in the direction thought best for it.
Clearly, a Party – and later a Beltway – eager to forget its screw-ups and mismanagement of national affairs, and eager to impose a new ethos that would ‘forget’ the Past and embrace not the Reality of what was happening but rather the ‘Dream’ of what will most surely come about if everybody just kept their mouth shut and went along … clearly, such a youthy descent into emotionalism would be of no small use. And so it is today, as the Boomers are now followed by generations of children who have been raised without the opportunity to genuinely mature as full human beings (and Citizens).
Tuesday, September 15, 2009
MORE READING
I’m still on vacation and will be until the middle of next week. But I have been doing a good deal of reading.
I’d like to invite your attention to the writing of Wayne Logan of Florida State University. He is writing some very insightful and also readable (for the non-professional reader) articles.
This link brings you to his Bio site and it has a link to a list of his publications.
But this link actually gives you access to some of his most important articles.
On that list I specifically recommend number 1 “Sex Offender Registration and Notification: Past, Present, and Future”; number 4 “Confronting Evil: Victims’ Rights in an Age of Terror”; and number 8 “Criminal Justice Federalism and National Sex Offender Policy”.
I will be Posting my thoughts on each of these articles, as well as the two articles I recommended in my Vacation Notice Post, when I get back.
As always, I urge you to read them in order to deepen your understanding of a) where sex offense law is coming from and b) what a genuinely alien approach it is to American law and the Constitutional vision itself.
Please don’t be put off by any fear of ‘long’ or ‘scholarly’ articles; these writers are clear thinkers, jargon-free, and they apply the ‘professional’ information to easily recognized public issues with which we are all familiar.
I’d like to invite your attention to the writing of Wayne Logan of Florida State University. He is writing some very insightful and also readable (for the non-professional reader) articles.
This link brings you to his Bio site and it has a link to a list of his publications.
But this link actually gives you access to some of his most important articles.
On that list I specifically recommend number 1 “Sex Offender Registration and Notification: Past, Present, and Future”; number 4 “Confronting Evil: Victims’ Rights in an Age of Terror”; and number 8 “Criminal Justice Federalism and National Sex Offender Policy”.
I will be Posting my thoughts on each of these articles, as well as the two articles I recommended in my Vacation Notice Post, when I get back.
As always, I urge you to read them in order to deepen your understanding of a) where sex offense law is coming from and b) what a genuinely alien approach it is to American law and the Constitutional vision itself.
Please don’t be put off by any fear of ‘long’ or ‘scholarly’ articles; these writers are clear thinkers, jargon-free, and they apply the ‘professional’ information to easily recognized public issues with which we are all familiar.
Tuesday, September 8, 2009
VACATION
VACATION
I’ll be on vacation for two weeks and moving around a great deal. I shall return.
I have a couple of recommendations if you have some time. First, read the entire set of Poritz Posts. There will not be a quiz; except by History, if my thoughts are anywhere near accurate.
Second, I can recommend two articles that I have come across (and plan to Post on when I return):
The first article is Cory Rayburn Yung’s “The Emerging Criminal War on Sex Offenders”, available here. She also blogs at http://www.sexcrimes.typepad.com/ and that site is well worth a look. She’s a law professor and there are links to a lot of law blogs, as well as her own material.
The second article is Aya Gruber’s “The Feminist War on Crime”. This article can be downloaded for free (it’s about 95 pages) if you have Adobe Acrobat 8. It's available here. This will be the abstract but at the top of the page select Download from SSRN and the whole article will appear.
Both of these articles are well worth a look to see just where sex-offense mania-law has come from. This is important for the SO community to know, I believe. The SO law-mania is neither a mysterious twist of history nor is it a natural and normal evolution of the American tradition. It is – as I said in my final Post about the Poritz case – truly strange and indeed alien.
Although they are ‘professional’ articles, they are pretty readable and certainly worth the time and effort: there is no justification for the SO community to feel that it is ‘merely’ defending the indefensible or to feel that it must comport itself like a supplicant for a rather distasteful favor.
The SO community is positioned on a dark frontier, seeking to prevent the Constitutional ethos and the American polity from being driven down a dark and historically dangerous road.
If the SO community is in a very real sense a ministry to those afflicted by the SO laws, it is also a prophetic voice seeking to call American law and jurisprudence back to their old allegiance.
Which covenant and compact both legislators and courts have – it must be said – broken.
I’ll be on vacation for two weeks and moving around a great deal. I shall return.
I have a couple of recommendations if you have some time. First, read the entire set of Poritz Posts. There will not be a quiz; except by History, if my thoughts are anywhere near accurate.
Second, I can recommend two articles that I have come across (and plan to Post on when I return):
The first article is Cory Rayburn Yung’s “The Emerging Criminal War on Sex Offenders”, available here. She also blogs at http://www.sexcrimes.typepad.com/ and that site is well worth a look. She’s a law professor and there are links to a lot of law blogs, as well as her own material.
The second article is Aya Gruber’s “The Feminist War on Crime”. This article can be downloaded for free (it’s about 95 pages) if you have Adobe Acrobat 8. It's available here. This will be the abstract but at the top of the page select Download from SSRN and the whole article will appear.
Both of these articles are well worth a look to see just where sex-offense mania-law has come from. This is important for the SO community to know, I believe. The SO law-mania is neither a mysterious twist of history nor is it a natural and normal evolution of the American tradition. It is – as I said in my final Post about the Poritz case – truly strange and indeed alien.
Although they are ‘professional’ articles, they are pretty readable and certainly worth the time and effort: there is no justification for the SO community to feel that it is ‘merely’ defending the indefensible or to feel that it must comport itself like a supplicant for a rather distasteful favor.
The SO community is positioned on a dark frontier, seeking to prevent the Constitutional ethos and the American polity from being driven down a dark and historically dangerous road.
If the SO community is in a very real sense a ministry to those afflicted by the SO laws, it is also a prophetic voice seeking to call American law and jurisprudence back to their old allegiance.
Which covenant and compact both legislators and courts have – it must be said – broken.
Monday, September 7, 2009
DOE v. PORITZ: FINAL THOUGHTS
DOE v. PORITZ: FINAL THOUGHTS
These are my wrap-up thoughts on this case.
As I have said, my purpose is to offer an opportunity for the SO community to look more widely and deeply at the entire sex-offense law phenomenon. While there is every reason to become enmeshed in the close-in and close-up world of dealing with individual cases and individual laws, my concern is that to do only that is to lose sight of what a profound and dangerous dynamic now loose in American society and government has been enabled by this, the first major effort by a court to justify the whole thing.
I want to accentuate the genuine strangeness of this whole sex-offense thing: the Constitutional and legal philosophy underlying it, the highly dubious nature of the scheme itself and the ‘science’ allegedly supporting it, the actual political and legal tactics and strategy that seem to hover around it, and the larger consequences – not simply for SOs and their loved ones but also for America as a society and as a Constitutional Republic.
The Megan’s Law itself was enacted in an era when the intrusiveness of government police-authority was expanding, both in foreign affairs and in domestic affairs. The curious although not illegitimate concern for the ‘victim’ – presumably always genuine – was not the cause of all this, but I think was rather the ‘cover’ for this expansion (which is not at all to say that ‘victims’ are willingly and knowingly in cahoots with some government conspiracy to undermine the Constitutional ethos).
But I do say that there is a ‘synergy’ here – dynamics not knowingly connected yet have started ‘vibrating together’; in certain types of large bridges the initiation and amplification of such forces acting synergistically can create ‘waves’ of energy that literally tear the structure apart and it collapses. And this is what I see as taking place in this sex-offense mania.
The Law itself offers an alien and strange system, not really well-grounded in science but also alien to American tradition, which is itself based in a certain philosophy of citizenship and the role of the government and its police powers that was integral to the system that the Framers devised.
The legislative history of the Law gives deep cause for concern. It received no serious phase of legislative deliberation; it is not unreasonable to think that most of the legislators did not read the Law before voting for it. And in this I see an ominous ‘trend’ that was later seen in the Patriot Act legislation of half-a decade later.
Additionally, the production of such a scheme on such short notice suggests to me that there was a blueprint for this thing already devised by interested parties, simply waiting for a ‘match’, simply waiting for some ‘outrage’ that would create the wave of ‘emergency’ upon which the scheme could be floated and surfed into enactment. Again, this is what we already know underlay the huge and complex Patriot Act; that Bill suddenly appeared, literally overnight, and was voted for by national legislators who have since acknowledged that they hadn’t read it. Worse, that they were given no time to read it by the legislative leadership – and it was a Bill whose text ran over a thousand pages.
Which hints so very strongly that either the legislative leadership did not want the Members to read it, or else that the Members were willing to be side-tracked if it meant that they could not be accused either of passing-it (if it failed) or of not-passing it (if public opinion was persuaded that they were dragging their feet in such an emergency).
The New Jersey Supreme Court, presided over by a Chief Justice praised by certain ‘advocacies’ for his ‘reliability’ and ‘friendliness’ to their agendas, took a decidedly ‘narrow’ view of its own responsibilities, focusing on several smaller issues but accepting – rather inappropriately – that the Law itself was ‘good’ because it was ‘necessary’ and therefore had to be given the Court’s approval due to the ‘emergency’.
We can look on this case now from a vantage point of fifteen years of national sex-offense experience: few of the Court’s hopes for success have been realized; many of the negative consequences considered clearly probable by the Amicus Briefs of that day and by Justice Stein in his Dissent have now come to pass; the entire sex-offense law matrix, given this major initial approval in 1995, has now not only continued but has actually expanded hugely and dangerously, as we can see in the Adam Walsh Act of 2006.
That sustained expansion indicates, I would say, two grave dynamics working beneath the surfaces and appearances of media ‘reports’ and ‘stories’. First, that the legislatures and law-makers and courts are now trapped in a dynamic that they cannot easily stop without being tarred as ‘insensitive’; nobody wants to be seen as the first to put the brakes on this thing.
Second, both the public and the legislators may well now be sinking into an acceptance of this entire mania and the mania-law as ‘normal’, merely because it has been around ‘for so long’. And I think that is hugely dangerous: when the ship is taking on water, the last thing anybody aboard should be doing is simply assuming that the deck always tilts, and at an increasing angle.
What are the prospects for this mania-law? I don’t at all want to see accepted the approach that noted law commentator Cass Sunstein recently proposed about Roe v. Wade: it was probably wrongly decided, he says, but now it’s so much part of the ‘tradition’ of American law that it’s not a good idea to change it. I’m taking no position on Roe here, but I surely do not want such an ‘acceptance’ accorded to sex offense mania-law.
The laws may be countered by the courts acknowledging, as some lower courts now do, that the laws have “evolved” to the point where they are no longer Constitutionally acceptable.
Or the entire matrix of laws may be declared fundamentally un-Constitutional, as Justice Stein drives at in his Dissent.
After all, this entire matrix is built like an upside-down pyramid: wide at the top, but tapering down to a very tiny set of assumptions. If those key assumptions are shown to be inaccurate – grossly inaccurate – then the entire matrix will collapse.
So as I see it, these core (and incorrect) assumptions are as follows. First, that the ‘sex offender’ is indeed scientifically proven to be a repulsive and compulsive and incorrigible threat to the public, with an extremely high recidivism rate and a very low rehabilitation rate. I say that if this assumption is incorrect, then there is no ‘emergency’ for which such an alien and extraordinary matrix of laws is justified on the basis of an alleged threat to public safety so great as to override traditional Constitutional protections.
Second, that the registration and classification schemes are not “punitive”, but are merely “regulatory” in such a way that any ‘inconvenience’ that they bring upon targeted individuals does not constitute an un-Constitutional violation of their rights. Instead, I say – with Justice Stein – that they do indeed constitute “punishment” in their effects, and that moreover they constitute a profound and fundamental violation of both the Framers’ vision and the ‘social compact’ upon which the Constitution and the legitimacy of the government itself rely.
If these assumptions can be brought to re-examination, I believe that this entire alien matrix can be neutralized in its very core.
Because – and again this is the significance of Poritz – all subsequent legislation and the sustaining court decisions basically do nothing but repeat Portiz’s justifications. If Poritz is demonstrated to be wrong, then for all practical purposes the whole fifteen years worth of this matrix is wrong.
There is reason for hope. There has been a sustained series of court challenges, and while most courts take refuge in simply turning them back by repeating some variation on Poritz, increasing numbers of courts and jurists have been deciding against those Poritz-based justifications that government agencies press upon them.
We must support such a trend. The consequences to the integrity not only of the ‘social compact’ and the Constitution, and not only to the civic maturity and competence of The People, but also to the integrity of the legislative and judicial and law enforcement and criminal justice systems, are grave and dark. I will merely note here what the former Auschwitz Commandant, Rudolf Hoess, said in his own defense after the war: He told his guards that they were professionals, and that they were not there to torment people but merely to exterminate them and that therefore he would tolerate no gratuitous violence or cruelty. But when asked by the Allied prosecutor if he ever tried to think more deeply, about whether his entire plan and mission were wrong, he replied: “I never gave much thought to whether it was wrong … it just seemed a necessity”.
“Necessity”, I would say, can be the mother of a lot more than invention; it can be the seedbed of great wrong.
And let me say a final word about ‘victims’ here. As I said in the very opening Post of this site, it is built into the very nature of examining a still-rampant mania that you are going to look like you are ‘going after’ certain ‘valued’ realities. Genuine victims, I believe, are being used for the advantage of other entities in this entire mania: those entities that profit financially or otherwise from the mania are using them; and the much more diffuse but even more powerful synergy that is continually seeking in many ways, large and small, to expand the government’s intrusion-authority, especially by weakening The People’s ability to deliberate and decide matters of large and grave public import.
This is ‘classic’ and ‘old’ mania material. Hitler’s genius was to declare the entire German Volk a victim, and then – as always must happen – he identified the ‘enemies’ who were victimizing the German Volk. And once he had established that claim as so true that ‘everybody knew that’, then the path to the destruction of democracy in that country was made clear.
And of course, in any instance where a person finds himself (or herself) with a tendency toward sex-offending, then s/he has a responsibility – civic as well as moral – to change that personal predisposition, and to cease immediately such acts, if s/he has committed any acts.
I think we are now able to say that the questionable and primary use of the government police-power in these sex-offense matters has proven to be as bad an idea as the idea of the questionable and primary reliance on government military power has proven itself to be in Southwest Asia.
Let it not be allowed to get any worse. Lest the country – as a Constitutional Republic as well as a civic polity – reach a ‘tipping point’ from which it will be impossible to recover.
As Americans and as citizens and as Citizens and as The People, we do live in vital times, and we face great challenges. About that let there be no doubt whatsoever.
These are my wrap-up thoughts on this case.
As I have said, my purpose is to offer an opportunity for the SO community to look more widely and deeply at the entire sex-offense law phenomenon. While there is every reason to become enmeshed in the close-in and close-up world of dealing with individual cases and individual laws, my concern is that to do only that is to lose sight of what a profound and dangerous dynamic now loose in American society and government has been enabled by this, the first major effort by a court to justify the whole thing.
I want to accentuate the genuine strangeness of this whole sex-offense thing: the Constitutional and legal philosophy underlying it, the highly dubious nature of the scheme itself and the ‘science’ allegedly supporting it, the actual political and legal tactics and strategy that seem to hover around it, and the larger consequences – not simply for SOs and their loved ones but also for America as a society and as a Constitutional Republic.
The Megan’s Law itself was enacted in an era when the intrusiveness of government police-authority was expanding, both in foreign affairs and in domestic affairs. The curious although not illegitimate concern for the ‘victim’ – presumably always genuine – was not the cause of all this, but I think was rather the ‘cover’ for this expansion (which is not at all to say that ‘victims’ are willingly and knowingly in cahoots with some government conspiracy to undermine the Constitutional ethos).
But I do say that there is a ‘synergy’ here – dynamics not knowingly connected yet have started ‘vibrating together’; in certain types of large bridges the initiation and amplification of such forces acting synergistically can create ‘waves’ of energy that literally tear the structure apart and it collapses. And this is what I see as taking place in this sex-offense mania.
The Law itself offers an alien and strange system, not really well-grounded in science but also alien to American tradition, which is itself based in a certain philosophy of citizenship and the role of the government and its police powers that was integral to the system that the Framers devised.
The legislative history of the Law gives deep cause for concern. It received no serious phase of legislative deliberation; it is not unreasonable to think that most of the legislators did not read the Law before voting for it. And in this I see an ominous ‘trend’ that was later seen in the Patriot Act legislation of half-a decade later.
Additionally, the production of such a scheme on such short notice suggests to me that there was a blueprint for this thing already devised by interested parties, simply waiting for a ‘match’, simply waiting for some ‘outrage’ that would create the wave of ‘emergency’ upon which the scheme could be floated and surfed into enactment. Again, this is what we already know underlay the huge and complex Patriot Act; that Bill suddenly appeared, literally overnight, and was voted for by national legislators who have since acknowledged that they hadn’t read it. Worse, that they were given no time to read it by the legislative leadership – and it was a Bill whose text ran over a thousand pages.
Which hints so very strongly that either the legislative leadership did not want the Members to read it, or else that the Members were willing to be side-tracked if it meant that they could not be accused either of passing-it (if it failed) or of not-passing it (if public opinion was persuaded that they were dragging their feet in such an emergency).
The New Jersey Supreme Court, presided over by a Chief Justice praised by certain ‘advocacies’ for his ‘reliability’ and ‘friendliness’ to their agendas, took a decidedly ‘narrow’ view of its own responsibilities, focusing on several smaller issues but accepting – rather inappropriately – that the Law itself was ‘good’ because it was ‘necessary’ and therefore had to be given the Court’s approval due to the ‘emergency’.
We can look on this case now from a vantage point of fifteen years of national sex-offense experience: few of the Court’s hopes for success have been realized; many of the negative consequences considered clearly probable by the Amicus Briefs of that day and by Justice Stein in his Dissent have now come to pass; the entire sex-offense law matrix, given this major initial approval in 1995, has now not only continued but has actually expanded hugely and dangerously, as we can see in the Adam Walsh Act of 2006.
That sustained expansion indicates, I would say, two grave dynamics working beneath the surfaces and appearances of media ‘reports’ and ‘stories’. First, that the legislatures and law-makers and courts are now trapped in a dynamic that they cannot easily stop without being tarred as ‘insensitive’; nobody wants to be seen as the first to put the brakes on this thing.
Second, both the public and the legislators may well now be sinking into an acceptance of this entire mania and the mania-law as ‘normal’, merely because it has been around ‘for so long’. And I think that is hugely dangerous: when the ship is taking on water, the last thing anybody aboard should be doing is simply assuming that the deck always tilts, and at an increasing angle.
What are the prospects for this mania-law? I don’t at all want to see accepted the approach that noted law commentator Cass Sunstein recently proposed about Roe v. Wade: it was probably wrongly decided, he says, but now it’s so much part of the ‘tradition’ of American law that it’s not a good idea to change it. I’m taking no position on Roe here, but I surely do not want such an ‘acceptance’ accorded to sex offense mania-law.
The laws may be countered by the courts acknowledging, as some lower courts now do, that the laws have “evolved” to the point where they are no longer Constitutionally acceptable.
Or the entire matrix of laws may be declared fundamentally un-Constitutional, as Justice Stein drives at in his Dissent.
After all, this entire matrix is built like an upside-down pyramid: wide at the top, but tapering down to a very tiny set of assumptions. If those key assumptions are shown to be inaccurate – grossly inaccurate – then the entire matrix will collapse.
So as I see it, these core (and incorrect) assumptions are as follows. First, that the ‘sex offender’ is indeed scientifically proven to be a repulsive and compulsive and incorrigible threat to the public, with an extremely high recidivism rate and a very low rehabilitation rate. I say that if this assumption is incorrect, then there is no ‘emergency’ for which such an alien and extraordinary matrix of laws is justified on the basis of an alleged threat to public safety so great as to override traditional Constitutional protections.
Second, that the registration and classification schemes are not “punitive”, but are merely “regulatory” in such a way that any ‘inconvenience’ that they bring upon targeted individuals does not constitute an un-Constitutional violation of their rights. Instead, I say – with Justice Stein – that they do indeed constitute “punishment” in their effects, and that moreover they constitute a profound and fundamental violation of both the Framers’ vision and the ‘social compact’ upon which the Constitution and the legitimacy of the government itself rely.
If these assumptions can be brought to re-examination, I believe that this entire alien matrix can be neutralized in its very core.
Because – and again this is the significance of Poritz – all subsequent legislation and the sustaining court decisions basically do nothing but repeat Portiz’s justifications. If Poritz is demonstrated to be wrong, then for all practical purposes the whole fifteen years worth of this matrix is wrong.
There is reason for hope. There has been a sustained series of court challenges, and while most courts take refuge in simply turning them back by repeating some variation on Poritz, increasing numbers of courts and jurists have been deciding against those Poritz-based justifications that government agencies press upon them.
We must support such a trend. The consequences to the integrity not only of the ‘social compact’ and the Constitution, and not only to the civic maturity and competence of The People, but also to the integrity of the legislative and judicial and law enforcement and criminal justice systems, are grave and dark. I will merely note here what the former Auschwitz Commandant, Rudolf Hoess, said in his own defense after the war: He told his guards that they were professionals, and that they were not there to torment people but merely to exterminate them and that therefore he would tolerate no gratuitous violence or cruelty. But when asked by the Allied prosecutor if he ever tried to think more deeply, about whether his entire plan and mission were wrong, he replied: “I never gave much thought to whether it was wrong … it just seemed a necessity”.
“Necessity”, I would say, can be the mother of a lot more than invention; it can be the seedbed of great wrong.
And let me say a final word about ‘victims’ here. As I said in the very opening Post of this site, it is built into the very nature of examining a still-rampant mania that you are going to look like you are ‘going after’ certain ‘valued’ realities. Genuine victims, I believe, are being used for the advantage of other entities in this entire mania: those entities that profit financially or otherwise from the mania are using them; and the much more diffuse but even more powerful synergy that is continually seeking in many ways, large and small, to expand the government’s intrusion-authority, especially by weakening The People’s ability to deliberate and decide matters of large and grave public import.
This is ‘classic’ and ‘old’ mania material. Hitler’s genius was to declare the entire German Volk a victim, and then – as always must happen – he identified the ‘enemies’ who were victimizing the German Volk. And once he had established that claim as so true that ‘everybody knew that’, then the path to the destruction of democracy in that country was made clear.
And of course, in any instance where a person finds himself (or herself) with a tendency toward sex-offending, then s/he has a responsibility – civic as well as moral – to change that personal predisposition, and to cease immediately such acts, if s/he has committed any acts.
I think we are now able to say that the questionable and primary use of the government police-power in these sex-offense matters has proven to be as bad an idea as the idea of the questionable and primary reliance on government military power has proven itself to be in Southwest Asia.
Let it not be allowed to get any worse. Lest the country – as a Constitutional Republic as well as a civic polity – reach a ‘tipping point’ from which it will be impossible to recover.
As Americans and as citizens and as Citizens and as The People, we do live in vital times, and we face great challenges. About that let there be no doubt whatsoever.
Sunday, September 6, 2009
DOE v. PORITZ: JUSTICE STEIN’S DISSENT
DOE v. PORITZ: JUSTICE STEIN’S DISSENT
Justice Stein filed the lone Dissent in Poritz (the Court split 6-1). In the linked text, the Dissent immediately follows the Decision.
He begins by noting, and it’s always good to get a clear picture of the times, that in 1994 “a federal statute, enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, Public L. No. 103-322,encouraged states to adopt mandatory registration requirements for persons convicted of sexually violent offenses or certain prescribed offenses against minors”.
Again and again the date of 1994 comes up. It was indeed a watershed year for the expansion of the Continental ‘registration’ mentality and philosophy to be introduced into mainstream American legislation. And thus, of course, into American jurisprudence shortly thereafter. As I discussed in earlier Posts, while registering autos and drivers licenses and barbers and corporations were well established of course, and even the occasional card-file kept in a police station, this was the year that the genuinely alien concept of ‘tagging’ somebody became ‘cutting edge’.
And with that, the even more alien and genuinely hostile idea – so fundamentally antithetical to the Constitutional vision – that the Citizenry, comprised of individuals possessed of an inalienable dignity, were to be divided into the ‘good’ Citizens and then some other bunch of no-longer-citizens who had been targeted for – as the Nazis used to say – ‘special treatment’.
Nor was that dignity any longer to be considered “inalienable”: you could be blamed for losing it, or the government could take it away, or both.
Justice Stein is careful, almost too careful, in his next paragraph. “The relationship between the statutory provisions and the concerns that led to their adoption is self-evident.” Yes, although that’s not really the point. The concerns themselves are based on a grossly inaccurate web of ‘scientific’ assertions claiming to establish that the vast majority of sex offenders are repetitive and compulsive and constitute an ongoing threat to the public and to children. It is the concerns – not the relationship of the statutory provisions to the concerns – that constitute the glaring fundamental weakness in this entire matter.
So he gives a lot away here. And follows up by stating that “Obviously, the notification provisions of the statute and Guidelines are intended to protect the public by familiarizing those who receive notice with sufficient details about the offender’s appearance, prior conviction [notice that he uses the singular here], and other date to permit them to take appropriate precautions”.
Again I ask: what are “appropriate precautions”? Are people going to simply move their children out of the way if the tagged person walks by and then let them free again when the individual has moved on down the path or the street? It seems to me hardly likely that people would settle for this rather weak interpretation of the lethally vague “appropriate precautions” opportunity.
Rather, they will try to drive the tagged person away – not so much in an overt encounter ala pitchforks and torches, but rather by orchestrating a perfectly non-violent (in the physical sense) exclusion from and even ejection from the local community. Which is – when extended over an entire State (or the entire community of States) – effectively a death-sentence to any reasonable interpretation of conducting a life of Work and Love.
Nowhere that I have found does the Legislature or the Court try to explain just what are and what are not “appropriate precautions”. It is for that very reason that I doubt the honesty of the Legislature: I think that this phrase, unchallenged by the Court, is the classic wink-wink-nudge-nudge (to use Monty Python’s fine image and phrase) by which the Legislature lets the public know that the law is not going to stand in their way; indeed, that this Law and the Legislature are going to make things easier. If a Sheriff in the Deep South had told a local crowd that they would get no objection for taking “appropriate precautions” if a black person were coming into town … you could imagine what would happen.
But then he gets going.
He notes that the Court “properly concludes that the impact of the statutes on those subject to Tier Two and Tier Three notification sufficiently implicates liberty interests to mandate the availability of due-process safeguards”. And that in consequence the Court rightly requires judicial review of a prosecutor’s decision to impose Tier Two or Tier Three notification. As I’ve said, in times of mania law, the separation and independence of the Branches and their powers, and the assumption that they are working independently of each other’s influence, cannot at all be taken for granted.
It is far far too easy to imagine, without any exaggeration, local judges and prosecutors working pretty much in concert. And especially after they have all seen the Legislature’s wink-wink-nudge-nudge and the State Supreme Court’s convoluted effort to justify everything.
“The broader the scope of community notification, the greater the punitive impact that notification will impose on the offender.” It’s not quite getting to the heart of the matter, but it’s a lot better than what we’ve been seeing in the text of the Decision.
And he continues: “The limitations imposed by the Court [on the notification process] are salutary, but are insufficient to address the constitutional infirmities in the Community Notification Law”.
Again, this is focused on the Notification Law, not the Registration law or the egregious ‘science’ that claims to have proven how much of a threat and an ‘emergency’ the sex offender poses.
He then goes on to make the most curiously-balanced statement: “The Legislature’s rationale for enacting these statutes obviates any inquiry about the purpose of their retroactive application to those sex offenders whose offenses had been committed before the statutes were enacted, as well as to those prior offenders who had fully served sentences imposed on them for their offenses and had returned to their communities. If the Registration and Notification Laws did not apply to those offenders, their effectiveness would be severely limited and as a practical matter, delayed for many years.”
I say again what I said in prior Posts about the Decision itself: First, the Legislature’s “rationale” is utterly debased both by its egregiously inaccurate Findings of Fact about the repetitive and compulsive nature of sex offenders and by its utter lack of serious deliberation before passing this Law.
Second, there’s something eerie and alien about a Court justifying a highly dubious new scheme by saying in effect that if the scheme had to be fenced-in by the Constitution then the scheme wouldn’t work very well. That, it strikes me, is a huge warning flag that the scheme is lethally flawed and dangerously toxic to a Constitutionally-healthy American society. And this point is not lost on Justice Stein.
Because he immediately gets to the sharp end of his thought: “Nevertheless, despite its obvious importance to the statutory scheme, the retroactive application of the notification statute to prior offenders poses, in my view, a fundamental constitutional impediment to its validity”.
He’s saying that if you have concocted a scheme that will only work if you violate the Constitution and apply the scheme’s admittedly severe consequences upon prior offenders, then with all due respect to your problem, your scheme is unconstitutional and that’s that.
Whereas the Court’s whole game has been that a) the scheme’s retroactive application isn’t really punishment if you look at it at just the right angle – and so b) if it isn’t punishment, then it can be retroactive and you can get on with enforcing the scheme. I can’t help but thinking of Gilbert & Sullivan’s Rich Attorney’s “elderly, ugly daughter” as he describes her to an unsuspecting beau: “She may very well pass for forty-three, in the dusk, with the light behind her!” And this is precisely what the Court is trying to do to us here. Our ‘marriage’ to this alien and ominous scheme won’t be so bad, the Court inveigles, if we just look at it the right way.
Justice Stein stands like a Stone-Wall: “The Constitution’s prohibition of bills of attainder and Ex Post Facto laws is not to be taken lightly”. But of course, the Court is operating – though it prefers not to mention the fact – on an alien legal philosophy in which the American Constitution is seen as ‘weak’ (which is precisely how it appeared to monarchists on the Continent). And, nowadays, as “quaint” on top of that.
Mr. Justice Stein digs even deeper, quoting James Madison on their indispensable role in the Constitutional vision: “bills of attainder, ex post facto laws impairing the obligation of contracts, are contrary to the first principles of the social compact [italics mine; see below] and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State Constitutions, and all of them are prohibited by the spirit and scope of those fundamental charters [italics mine; see below]. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted”.
What the Justice is getting at, and what Madison so profoundly hit upon, is that this entire Continental approach is a violation of the basic American “social compact”. When the government sets forth criminal laws, it is clearly contracting with the citizens: if you do such-and-such, then such-and-such will follow.
And this is based on the quintessential American presumption that each Citizen is to be treated as a rational being possessed of an inalienable dignity and concomitant rights. Whereas the Continental view sees the citizens as peasants, which is to say ‘dumb animals’ that cannot control themselves. Accordingly, and also as a result of the Throne’s right to make law on a whim, then punishments can be increased even after the commission of a crime, and thus they can apply retroactively.
And so you can see where it was so important – and so easy – theoretically for the Legislature and the Court to switch to the Continental philosophy of law, wherein ‘sex offenders’ are seen as a species of animal, completely unguided by rationality and at the mercy of ‘repetitive and compulsive urges’ that will most likely drive them to ‘recidivate’ and ‘reoffend’. And thus, of course, they may be considered not as full Citizens but rather as a species of monster threatening, as it were, the villagers.
But in the Constitutional vision, each individual is a rational being and thus capable of entering into the ‘social contract’ or ‘social compact’, and that ‘contract’ – being the fundamental source of the government’s legitimacy - cannot be broken. Indeed, in breaking it, the government sets in train its own undoing, because eventually the consequences of breaking the ‘social contract’ will be the de-legitimizing of the government itself.
The Constitution is not a ‘game’, but it is certainly based on a ‘contract’ or a ‘compact’. And on that ‘compact’ the government’s own legitimacy rides. The Continental approach, of course, with its roots in monarchy, assumes that the government is the government (eerily similar to the Fundamentalist “powers that be”) and thus cannot be opposed by the citizenry (who in the Continental system are merely the modern-day equivalent of the peasants of olden times who were owned by the Crown).
Additionally, a government embarking on this noxious course will eventually create a significant group of ‘second class’ citizens within the American polity, which will be as dangerous in potential problems as it is repugnant in theory.
This is a huge and I agree a fatal difficulty at the heart of the entire scheme and of this Law itself, which is practically the forerunner of the entire matrix of sex offense laws.
The Court pays little attention to Madison, but then Madison makes no sense to the Continental philosophy of law, or to its latter-day proponents.
Interestingly, the 1994 federal statute does not require the retroactive application of sex-offenders. However, after this 1995 New Jersey Decision, the federal legislation has also moved ominously in that direction. Watching both a State Supreme Court, and then other States’ Legislatures and then the US Supreme Court itself expand or uphold this alien matrix, the Congress has been emboldened to the point of the jaw-dropping strictures written into the Adam Walsh Act of 2006. This is not at all a healthy course of American law or American society – it’s not far from a hasty heart-transplant with no thought as to whether the patient’s ‘constitution’ can stand the invasive and alien presence of the different organ.
You can see here, as well, how the Court’s “hopes” in 1995 were proven almost totally unfounded; these laws and public opinion and media treatment got worse, reflecting the intensified debauchery of legislatures, courts, media and citizenry. This cannot end well and must be stopped.
Justice Stein notes that “at this time [1995] the future effects of “Meagan’s Law” on those subject to community and individual notification are not possible to discern”. He does, however, mention what I think is a very revealing comment by one Curtis Sliwa, who in those days was head of the Guardian Angels group: “Let the criminal have a taste of being the victim”.
This comment clearly indicates that the public, and certainly this well-known (at the time) public service volunteer organization, most certainly did intend their “appropriate measures” to have a punitive effect. And I am going to imagine that 15 years later, current volunteer organizations – at least among themselves – are operating on the same principle. Nor have I heard of any Attorney General rebuking such an approach.
Once again, the Court’s queasily pious hope that folks wouldn’t go overboard with this thing is proven to be hugely mistaken.
Justice Stein quotes John Marshall from 1810: “Whatever respect might have been felt for the state sovereignties, it is not to be disguised that the framers of the constitution viewed with some apprehension the violent acts [that] might grow out of the feelings of the moment, and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed”. [italics mine].
The phenomenon of mania-law is grounded precisely in those “feelings of the moment” that the Framers feared. Their fears have been amplified in several ways in modern times. First, in mass societies that are too complex for any individual citizen to comprehend, then in the absence of rational knowledge of facts, citizens will tend to rely on feelings, and especially feeling-together – thus the diabolic enchantment of Hitler’s governing style and his huge public gatherings.
Second – as Noam Chomsky has recently noted – in the age of democracies, governments have realized that they cannot physically coerce their huge citizenries. And so the manipulation and control of public opinion has become indispensable and through the contributions of Edward Bernays and the odious genius Josef Goebbels such PR manipulation has been honed to a fine (so to speak) art.
We have been – especially since the end of World War Two – continuously assaulted by the government with efforts to manipulate public opinion. Truman was told by his advisers after the war that if he was going to have the US assume leadership of the West in the Cold War, then he was “going to have to scare hell out of the American people” since, presumably, they would be expecting a certain amount of ‘peace’ with the end of that monstrous war.
But even before that, the Progressives of the Wilsonian era – and Wilson himself – saw themselves as ‘experts’ who would need to guide “the blundering herd” as Walter Lippmann referred to the American citizenry. That was also when Wilson and Congress signed over their responsibility for the money supply and the economy to the Federal Reserve (1913) and gave the military the power to prosecute the entire Federal criminal code through courts-martial (1916). Whether either of those ‘delegations’ was actually Constitutional is a question that hasn’t really been settled.
The Vietnam War would not have gone where it did if it weren’t for the exaggeration of the Tonkin Gulf incident – to the extent it actually happened – that was blared out to the citizenry as another Pearl Harbor. Which, given the losses at Pearl Harbor, was just short of obscene.
But since the late Sixties, it was the Left and the ‘liberals’ who embraced such ‘scare and stampede’ tactics, inundating the country with sad stories and horror stories designed to overwhelm public deliberation and throw the public into a civic regression whereby The People could no longer deliberate, but could only react.
And it is exactly in this long line of events that the sex-offense mania and all the mania law and the insinuation of alien Continental legal philosophy come to us. And come at us.
So at this point, precisely such “feelings of the moment” as the Framers and the Constitutional vision sought so urgently to avoid, have become now the ‘normal’ mode of political discourse and of individual citizens’ conceptions about government and their role in it: they are here to ‘feel’ the appropriate feelings and – from time to time – vote in accordance with those ‘feelings’.
Thoughts not only don’t enter into it; thoughts may well be ‘insensitive’ (in matters domestic) or ‘unpatriotic’ (in matters foreign).
And if ever there has been a law that is enmeshed in ‘feelings’ it is this Law and all the spawn and spume of sex-offense laws that followed it. The public, the media, the Legislature, the Courts … they are all drenched in feeling, soused in them. And we are slowly drowning in them as a society, as a culture, as the stewards of the unique Constitutional vision bequeathed to us.
Justice Stein also refuses to allow the Court to absolve itself of any responsibility by claiming that “legislative intent” trumps all other considerations. “The Court’s exclusive reliance on legislative intent as the test of punishment [i.e., whether a law is punitive or only regulatory and administrative] is misplaced”. You have to judge the purposes to which the Law is being put, he says; you can’t simply rely on what the legislature says or implies about what sort of a law it has passed. Legislatures, Justice Stein is thinking, can say one thing for public consumption but intend something else; or maybe they just don’t think things through. Or – I would say – both.
Nor is it sufficient for the Court merely to play word-games with “dialectical subtleties”; not when “the problem is one of safeguarding the humane interests for the protection of which the double jeopardy clause was written into the Fifth Amendment”. This is wayyyy too important an issue, he says, for the Court to ignore its responsibility to enforce the Constitution’s vision of protecting all the citizens (including those accused of or even guilty of a crime) from the arbitrary or emotion-driven impositions of the government police power.
Interestingly, he quotes a 1965 US Supreme Court case (United States v. Brown, which is not the famous Brown v. Board of Education school desegregation case). In that case a 1959 federal law had required that simple membership in the Communist Party was sufficient to bar a person from serving as an officer of a labor union. No, said the Court, even though Congress claimed that it was not trying to “punish” American Communists “for what they have done in the past” but merely “regulate” them so as “to keep them from positions where they will in the future be able to bring about undesirable events”.
Nope, said the Supreme Court. “A number of English bills of attainder were passed for preventive purposes [back in the days of the divine-right monarchy], that is, the legislature made a judgment, undoubtedly based on past acts and associations that a given person or group was likely to cause trouble (usually, overthrow the government) and therefore inflicted deprivations upon that person or group in order to keep it from bringing about the feared event.”
The Supreme Court struck down the 1959 Act, based – Stein notes – in part on an 1867 Missouri case where that era’s Supreme Court “struck down amendments to the Missouri Constitution requiring members of various professions to take an oath swearing that they had not participated in the rebellion against the Union as a condition of practicing their professions”.
In other words, the Supreme Court in 1867 told Missouri that it could not claim it was merely a ‘regulatory’ act to require that ex-Confederates could not practice as professionals in the State.
Now if the US Supreme Court in 1965 refused to allow Congress to issue a blanket ban on Communists as labor leaders, and was willing to run the risk of Communists being in positions of influence in American society; and if the Supreme Court in 1867 was willing to run the risk of ex-Confederates practicing as professionals in post-Civil War America … then you can start to see how much things have changed recently.
In precisely the same way, Justice Stein notes, the Congress and the State of New Jersey are now [1995] in effect passing bills of attainder on ‘sex offenders’, as if the risk they pose is greater than that posed in the 1950s by Communists and in the late 1860s by ex-Confederates.
I would add: are ‘sex offenders’ really more of a threat than Communists in the 1950s or ex-Confederates in the border states of the 1860s? Surely the ‘science’ that claimed to prove that assertion in the affirmative has now in 2009 been demonstrated to be gravely and lethally inaccurate.
But what Justice Stein is driving at is that Constitutionally you can’t be imposing such bills of attainder even with the ‘good’ intention of ‘preventing’ what might happen. The ‘preventive state’ is in many ways not compatible with the Constitution. And, I would add, the same goes for the ‘mother-hen’ school of law that is merely the old Continental, monarchy-heavy approach in a different suit of clothes.
‘Preventive’ intent does not automatically rule out ‘punitive’ effects. Nor can you say breezily that ‘prevention’ trumps the Constitutional safeguards.
Continuing to quote Brown, Justice Stein establishes that anything required by a law might constitute ‘punishment’ and it is the responsibility of the Judicial Branch to look at the whole context. This of course is precisely what the Poritz Court has resolutely avoided doing, focusing on the seat-belt and not on the effects of being strapped into your car at the edge of the cliff with the government having incited a surrounding mob with solemn warnings as to your treacherous and compulsive and uncontrollably threatening nature.
As Justice Stein insists, when it comes to impositions required by a law “we must follow the notion where it leads” and judge it there. The Poritz Court, of course, refused to do that, taking an extremely narrow approach to its task and claiming that it could not see into the future (except that it was satisfied that sex-offenders were always a threat in any future).
Justice Stein then goes on to follow the Law’s plan for, say, a Tier Two offender, as it would work out in a small community of 10,000 citizens. “Hundreds of persons would be entitled to receive the Tier Two notice and, although instructed to inform no one else about its contents, no enforcement mechanism conceivably can prevent word of mouth dissemination of the information contained in the notice”.
Exactly. There is no way that the State can control conversation among folks. And what if the local paper or radio stations decides to do a report not on the individual’s Tier Two status (which would be illegal under the Law) but ‘merely’ on what he had been convicted of (which is perfectly legal) … ? What then?
And all of this takes place, of course, in an atmosphere where the Law’s assumptions about the uncontrollable threat that sex-offenders are officially considered to be have been well-publicized and everybody has been exposed to that (mis)information.
This is a State-constructed tinder-dry wilderness simply waiting for a match. Which the State is also going to provide. (But it doesn't expect any fires.)
Add to this that a Tier Three offender’s presence will be announced to anybody “likely to encounter him”, which in all but the largest cities could include everyone in the community.
The Court’s happy-face assumption that folks won’t go off half-cocked is “contrary to human nature”, he says. And, he adds, even if the media were to follow the Law, its reporting would “as a practical matter” result in a community-wide commotion.
And he goes on: “The community’s reaction to such notice is impossible to predict, but given the normal range of human emotion one reasonably could anticipate that notice of the presence of a sex offender will trigger fear, suspicion, hostility, anger, evasive behavior, ostracism, and in some cases derision, epithets, and violence. To be sure, the sex offender’s quality of life will be adversely affected”.
So, he concludes, “to anticipate that the Community Notification Law, even as limited by the Court’s interpretation, will not visit severe, disruptive, and perhaps intolerable consequences on offenders subject to Tier Two and Tier Three notification is simply unrealistic”. Good for him – it’s about time somebody started getting close to the idea that this Law pulls everybody wayyyy too close to the Mad Hatter’s Tea Party. And in a forum of lethally serious consequences for the entire basis of American society and culture.
He doesn’t stop.
“The Court appears to conclude, however, despite any deficiencies in the classification and notification process adopted by the Legislature, that its rationality establishes its constitutionality. That is, because the Court concludes that the Legislature reasonably could determine that these statutes prevent harm to the public by mandating notice to the community of the whereabouts of previously convicted sex offenders, the Constitution does not prohibit their enactment.”
He disagrees. “The Legislature’s value judgment about these laws [based, as you recall, on no Committee work or deliberation whatsoever] is entitled to great respect, but that judgment comprises only one part of the constitutional equation.” It’s refreshing to hear somebody in authority who doesn’t simply try to hide behind the Legislature.
Indeed, he says, “the judiciary’s task is to complete the equation by evaluating the legislative determination in the context of settled constitutional principles”. Precisely what the Poritz Court has been mostly avoiding all along.
“The constitutional prohibitions against the enactment of ex post facto laws and bills of attainder reflect a valid concern about the use of the political process to punish or characterize past conduct of private citizens.”
But of course the sex-offense laws’ approach has been to characterize the sex-offender not as a private citizen (with inalienable rights and dignity) but rather to characterize him as as incorrigible monstrous threat who implicitly has indeed been ‘alienated’ from his rights and dignity as a citizen.
And the use of the phrase “political process” is telling, in light of what we know about the Legislature’s own desire to escape public censure for its generous parole policies and to pander to certain voter groups. As well as the Court’s own predisposition (especially on the part of the Chief Justice) toward this alien Continental legal philosophy and its schemes.
And he reminds us that “retroactive statutes raise particular concerns”, because “the Legislature’s unmatched powers allow it to sweep away settled expectations suddenly”. Because “its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals”. Which speaks directly to the reality of the government actually sponsoring this entire mania. And, over the course now of 15 years, we can see that the government – the national Legislature as well as the State Legislatures, and now even city and town and county governments – has continued to sustain and indeed expand this whole thing.
And, facing up squarely to the entire matrix of mania law and ‘emergency’ law, he clearly states that “the Constitution’s prohibition against ex post facto laws reflects an enduring value that transcends the most pressing concerns of this or any day and age”.
In the 1950s it was Communists (as in the late 1860s it was ex-Confederates) and “future legislatures will doubtlessly find reasons to deal harshly with other groups that pose an apparent threat to public safety”. Yes, it is a dark road that we have been started on here.
ADDENDUM
This concludes my thoughts about Justice Stein’s Dissent. I plan one more Post on this case simply to sum up – briefly, yes – what I see as the significance of this case.
But I’ll say here that I think it’s essential that the SO community makes itself aware of the large and deep picture that transcends the equally legitimate but more narrow concerns that occupy the community.
By doing so, I think that the various members of the SO community can fortify themselves as to the genuinely crucial and vital role that their efforts play in correcting what has been and still is a significant deformity to the American Constitutional system and a threat to the continued health and integrity of the unique gift that is the Constitutional and the American vision.
Justice Stein filed the lone Dissent in Poritz (the Court split 6-1). In the linked text, the Dissent immediately follows the Decision.
He begins by noting, and it’s always good to get a clear picture of the times, that in 1994 “a federal statute, enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, Public L. No. 103-322,encouraged states to adopt mandatory registration requirements for persons convicted of sexually violent offenses or certain prescribed offenses against minors”.
Again and again the date of 1994 comes up. It was indeed a watershed year for the expansion of the Continental ‘registration’ mentality and philosophy to be introduced into mainstream American legislation. And thus, of course, into American jurisprudence shortly thereafter. As I discussed in earlier Posts, while registering autos and drivers licenses and barbers and corporations were well established of course, and even the occasional card-file kept in a police station, this was the year that the genuinely alien concept of ‘tagging’ somebody became ‘cutting edge’.
And with that, the even more alien and genuinely hostile idea – so fundamentally antithetical to the Constitutional vision – that the Citizenry, comprised of individuals possessed of an inalienable dignity, were to be divided into the ‘good’ Citizens and then some other bunch of no-longer-citizens who had been targeted for – as the Nazis used to say – ‘special treatment’.
Nor was that dignity any longer to be considered “inalienable”: you could be blamed for losing it, or the government could take it away, or both.
Justice Stein is careful, almost too careful, in his next paragraph. “The relationship between the statutory provisions and the concerns that led to their adoption is self-evident.” Yes, although that’s not really the point. The concerns themselves are based on a grossly inaccurate web of ‘scientific’ assertions claiming to establish that the vast majority of sex offenders are repetitive and compulsive and constitute an ongoing threat to the public and to children. It is the concerns – not the relationship of the statutory provisions to the concerns – that constitute the glaring fundamental weakness in this entire matter.
So he gives a lot away here. And follows up by stating that “Obviously, the notification provisions of the statute and Guidelines are intended to protect the public by familiarizing those who receive notice with sufficient details about the offender’s appearance, prior conviction [notice that he uses the singular here], and other date to permit them to take appropriate precautions”.
Again I ask: what are “appropriate precautions”? Are people going to simply move their children out of the way if the tagged person walks by and then let them free again when the individual has moved on down the path or the street? It seems to me hardly likely that people would settle for this rather weak interpretation of the lethally vague “appropriate precautions” opportunity.
Rather, they will try to drive the tagged person away – not so much in an overt encounter ala pitchforks and torches, but rather by orchestrating a perfectly non-violent (in the physical sense) exclusion from and even ejection from the local community. Which is – when extended over an entire State (or the entire community of States) – effectively a death-sentence to any reasonable interpretation of conducting a life of Work and Love.
Nowhere that I have found does the Legislature or the Court try to explain just what are and what are not “appropriate precautions”. It is for that very reason that I doubt the honesty of the Legislature: I think that this phrase, unchallenged by the Court, is the classic wink-wink-nudge-nudge (to use Monty Python’s fine image and phrase) by which the Legislature lets the public know that the law is not going to stand in their way; indeed, that this Law and the Legislature are going to make things easier. If a Sheriff in the Deep South had told a local crowd that they would get no objection for taking “appropriate precautions” if a black person were coming into town … you could imagine what would happen.
But then he gets going.
He notes that the Court “properly concludes that the impact of the statutes on those subject to Tier Two and Tier Three notification sufficiently implicates liberty interests to mandate the availability of due-process safeguards”. And that in consequence the Court rightly requires judicial review of a prosecutor’s decision to impose Tier Two or Tier Three notification. As I’ve said, in times of mania law, the separation and independence of the Branches and their powers, and the assumption that they are working independently of each other’s influence, cannot at all be taken for granted.
It is far far too easy to imagine, without any exaggeration, local judges and prosecutors working pretty much in concert. And especially after they have all seen the Legislature’s wink-wink-nudge-nudge and the State Supreme Court’s convoluted effort to justify everything.
“The broader the scope of community notification, the greater the punitive impact that notification will impose on the offender.” It’s not quite getting to the heart of the matter, but it’s a lot better than what we’ve been seeing in the text of the Decision.
And he continues: “The limitations imposed by the Court [on the notification process] are salutary, but are insufficient to address the constitutional infirmities in the Community Notification Law”.
Again, this is focused on the Notification Law, not the Registration law or the egregious ‘science’ that claims to have proven how much of a threat and an ‘emergency’ the sex offender poses.
He then goes on to make the most curiously-balanced statement: “The Legislature’s rationale for enacting these statutes obviates any inquiry about the purpose of their retroactive application to those sex offenders whose offenses had been committed before the statutes were enacted, as well as to those prior offenders who had fully served sentences imposed on them for their offenses and had returned to their communities. If the Registration and Notification Laws did not apply to those offenders, their effectiveness would be severely limited and as a practical matter, delayed for many years.”
I say again what I said in prior Posts about the Decision itself: First, the Legislature’s “rationale” is utterly debased both by its egregiously inaccurate Findings of Fact about the repetitive and compulsive nature of sex offenders and by its utter lack of serious deliberation before passing this Law.
Second, there’s something eerie and alien about a Court justifying a highly dubious new scheme by saying in effect that if the scheme had to be fenced-in by the Constitution then the scheme wouldn’t work very well. That, it strikes me, is a huge warning flag that the scheme is lethally flawed and dangerously toxic to a Constitutionally-healthy American society. And this point is not lost on Justice Stein.
Because he immediately gets to the sharp end of his thought: “Nevertheless, despite its obvious importance to the statutory scheme, the retroactive application of the notification statute to prior offenders poses, in my view, a fundamental constitutional impediment to its validity”.
He’s saying that if you have concocted a scheme that will only work if you violate the Constitution and apply the scheme’s admittedly severe consequences upon prior offenders, then with all due respect to your problem, your scheme is unconstitutional and that’s that.
Whereas the Court’s whole game has been that a) the scheme’s retroactive application isn’t really punishment if you look at it at just the right angle – and so b) if it isn’t punishment, then it can be retroactive and you can get on with enforcing the scheme. I can’t help but thinking of Gilbert & Sullivan’s Rich Attorney’s “elderly, ugly daughter” as he describes her to an unsuspecting beau: “She may very well pass for forty-three, in the dusk, with the light behind her!” And this is precisely what the Court is trying to do to us here. Our ‘marriage’ to this alien and ominous scheme won’t be so bad, the Court inveigles, if we just look at it the right way.
Justice Stein stands like a Stone-Wall: “The Constitution’s prohibition of bills of attainder and Ex Post Facto laws is not to be taken lightly”. But of course, the Court is operating – though it prefers not to mention the fact – on an alien legal philosophy in which the American Constitution is seen as ‘weak’ (which is precisely how it appeared to monarchists on the Continent). And, nowadays, as “quaint” on top of that.
Mr. Justice Stein digs even deeper, quoting James Madison on their indispensable role in the Constitutional vision: “bills of attainder, ex post facto laws impairing the obligation of contracts, are contrary to the first principles of the social compact [italics mine; see below] and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State Constitutions, and all of them are prohibited by the spirit and scope of those fundamental charters [italics mine; see below]. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted”.
What the Justice is getting at, and what Madison so profoundly hit upon, is that this entire Continental approach is a violation of the basic American “social compact”. When the government sets forth criminal laws, it is clearly contracting with the citizens: if you do such-and-such, then such-and-such will follow.
And this is based on the quintessential American presumption that each Citizen is to be treated as a rational being possessed of an inalienable dignity and concomitant rights. Whereas the Continental view sees the citizens as peasants, which is to say ‘dumb animals’ that cannot control themselves. Accordingly, and also as a result of the Throne’s right to make law on a whim, then punishments can be increased even after the commission of a crime, and thus they can apply retroactively.
And so you can see where it was so important – and so easy – theoretically for the Legislature and the Court to switch to the Continental philosophy of law, wherein ‘sex offenders’ are seen as a species of animal, completely unguided by rationality and at the mercy of ‘repetitive and compulsive urges’ that will most likely drive them to ‘recidivate’ and ‘reoffend’. And thus, of course, they may be considered not as full Citizens but rather as a species of monster threatening, as it were, the villagers.
But in the Constitutional vision, each individual is a rational being and thus capable of entering into the ‘social contract’ or ‘social compact’, and that ‘contract’ – being the fundamental source of the government’s legitimacy - cannot be broken. Indeed, in breaking it, the government sets in train its own undoing, because eventually the consequences of breaking the ‘social contract’ will be the de-legitimizing of the government itself.
The Constitution is not a ‘game’, but it is certainly based on a ‘contract’ or a ‘compact’. And on that ‘compact’ the government’s own legitimacy rides. The Continental approach, of course, with its roots in monarchy, assumes that the government is the government (eerily similar to the Fundamentalist “powers that be”) and thus cannot be opposed by the citizenry (who in the Continental system are merely the modern-day equivalent of the peasants of olden times who were owned by the Crown).
Additionally, a government embarking on this noxious course will eventually create a significant group of ‘second class’ citizens within the American polity, which will be as dangerous in potential problems as it is repugnant in theory.
This is a huge and I agree a fatal difficulty at the heart of the entire scheme and of this Law itself, which is practically the forerunner of the entire matrix of sex offense laws.
The Court pays little attention to Madison, but then Madison makes no sense to the Continental philosophy of law, or to its latter-day proponents.
Interestingly, the 1994 federal statute does not require the retroactive application of sex-offenders. However, after this 1995 New Jersey Decision, the federal legislation has also moved ominously in that direction. Watching both a State Supreme Court, and then other States’ Legislatures and then the US Supreme Court itself expand or uphold this alien matrix, the Congress has been emboldened to the point of the jaw-dropping strictures written into the Adam Walsh Act of 2006. This is not at all a healthy course of American law or American society – it’s not far from a hasty heart-transplant with no thought as to whether the patient’s ‘constitution’ can stand the invasive and alien presence of the different organ.
You can see here, as well, how the Court’s “hopes” in 1995 were proven almost totally unfounded; these laws and public opinion and media treatment got worse, reflecting the intensified debauchery of legislatures, courts, media and citizenry. This cannot end well and must be stopped.
Justice Stein notes that “at this time [1995] the future effects of “Meagan’s Law” on those subject to community and individual notification are not possible to discern”. He does, however, mention what I think is a very revealing comment by one Curtis Sliwa, who in those days was head of the Guardian Angels group: “Let the criminal have a taste of being the victim”.
This comment clearly indicates that the public, and certainly this well-known (at the time) public service volunteer organization, most certainly did intend their “appropriate measures” to have a punitive effect. And I am going to imagine that 15 years later, current volunteer organizations – at least among themselves – are operating on the same principle. Nor have I heard of any Attorney General rebuking such an approach.
Once again, the Court’s queasily pious hope that folks wouldn’t go overboard with this thing is proven to be hugely mistaken.
Justice Stein quotes John Marshall from 1810: “Whatever respect might have been felt for the state sovereignties, it is not to be disguised that the framers of the constitution viewed with some apprehension the violent acts [that] might grow out of the feelings of the moment, and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed”. [italics mine].
The phenomenon of mania-law is grounded precisely in those “feelings of the moment” that the Framers feared. Their fears have been amplified in several ways in modern times. First, in mass societies that are too complex for any individual citizen to comprehend, then in the absence of rational knowledge of facts, citizens will tend to rely on feelings, and especially feeling-together – thus the diabolic enchantment of Hitler’s governing style and his huge public gatherings.
Second – as Noam Chomsky has recently noted – in the age of democracies, governments have realized that they cannot physically coerce their huge citizenries. And so the manipulation and control of public opinion has become indispensable and through the contributions of Edward Bernays and the odious genius Josef Goebbels such PR manipulation has been honed to a fine (so to speak) art.
We have been – especially since the end of World War Two – continuously assaulted by the government with efforts to manipulate public opinion. Truman was told by his advisers after the war that if he was going to have the US assume leadership of the West in the Cold War, then he was “going to have to scare hell out of the American people” since, presumably, they would be expecting a certain amount of ‘peace’ with the end of that monstrous war.
But even before that, the Progressives of the Wilsonian era – and Wilson himself – saw themselves as ‘experts’ who would need to guide “the blundering herd” as Walter Lippmann referred to the American citizenry. That was also when Wilson and Congress signed over their responsibility for the money supply and the economy to the Federal Reserve (1913) and gave the military the power to prosecute the entire Federal criminal code through courts-martial (1916). Whether either of those ‘delegations’ was actually Constitutional is a question that hasn’t really been settled.
The Vietnam War would not have gone where it did if it weren’t for the exaggeration of the Tonkin Gulf incident – to the extent it actually happened – that was blared out to the citizenry as another Pearl Harbor. Which, given the losses at Pearl Harbor, was just short of obscene.
But since the late Sixties, it was the Left and the ‘liberals’ who embraced such ‘scare and stampede’ tactics, inundating the country with sad stories and horror stories designed to overwhelm public deliberation and throw the public into a civic regression whereby The People could no longer deliberate, but could only react.
And it is exactly in this long line of events that the sex-offense mania and all the mania law and the insinuation of alien Continental legal philosophy come to us. And come at us.
So at this point, precisely such “feelings of the moment” as the Framers and the Constitutional vision sought so urgently to avoid, have become now the ‘normal’ mode of political discourse and of individual citizens’ conceptions about government and their role in it: they are here to ‘feel’ the appropriate feelings and – from time to time – vote in accordance with those ‘feelings’.
Thoughts not only don’t enter into it; thoughts may well be ‘insensitive’ (in matters domestic) or ‘unpatriotic’ (in matters foreign).
And if ever there has been a law that is enmeshed in ‘feelings’ it is this Law and all the spawn and spume of sex-offense laws that followed it. The public, the media, the Legislature, the Courts … they are all drenched in feeling, soused in them. And we are slowly drowning in them as a society, as a culture, as the stewards of the unique Constitutional vision bequeathed to us.
Justice Stein also refuses to allow the Court to absolve itself of any responsibility by claiming that “legislative intent” trumps all other considerations. “The Court’s exclusive reliance on legislative intent as the test of punishment [i.e., whether a law is punitive or only regulatory and administrative] is misplaced”. You have to judge the purposes to which the Law is being put, he says; you can’t simply rely on what the legislature says or implies about what sort of a law it has passed. Legislatures, Justice Stein is thinking, can say one thing for public consumption but intend something else; or maybe they just don’t think things through. Or – I would say – both.
Nor is it sufficient for the Court merely to play word-games with “dialectical subtleties”; not when “the problem is one of safeguarding the humane interests for the protection of which the double jeopardy clause was written into the Fifth Amendment”. This is wayyyy too important an issue, he says, for the Court to ignore its responsibility to enforce the Constitution’s vision of protecting all the citizens (including those accused of or even guilty of a crime) from the arbitrary or emotion-driven impositions of the government police power.
Interestingly, he quotes a 1965 US Supreme Court case (United States v. Brown, which is not the famous Brown v. Board of Education school desegregation case). In that case a 1959 federal law had required that simple membership in the Communist Party was sufficient to bar a person from serving as an officer of a labor union. No, said the Court, even though Congress claimed that it was not trying to “punish” American Communists “for what they have done in the past” but merely “regulate” them so as “to keep them from positions where they will in the future be able to bring about undesirable events”.
Nope, said the Supreme Court. “A number of English bills of attainder were passed for preventive purposes [back in the days of the divine-right monarchy], that is, the legislature made a judgment, undoubtedly based on past acts and associations that a given person or group was likely to cause trouble (usually, overthrow the government) and therefore inflicted deprivations upon that person or group in order to keep it from bringing about the feared event.”
The Supreme Court struck down the 1959 Act, based – Stein notes – in part on an 1867 Missouri case where that era’s Supreme Court “struck down amendments to the Missouri Constitution requiring members of various professions to take an oath swearing that they had not participated in the rebellion against the Union as a condition of practicing their professions”.
In other words, the Supreme Court in 1867 told Missouri that it could not claim it was merely a ‘regulatory’ act to require that ex-Confederates could not practice as professionals in the State.
Now if the US Supreme Court in 1965 refused to allow Congress to issue a blanket ban on Communists as labor leaders, and was willing to run the risk of Communists being in positions of influence in American society; and if the Supreme Court in 1867 was willing to run the risk of ex-Confederates practicing as professionals in post-Civil War America … then you can start to see how much things have changed recently.
In precisely the same way, Justice Stein notes, the Congress and the State of New Jersey are now [1995] in effect passing bills of attainder on ‘sex offenders’, as if the risk they pose is greater than that posed in the 1950s by Communists and in the late 1860s by ex-Confederates.
I would add: are ‘sex offenders’ really more of a threat than Communists in the 1950s or ex-Confederates in the border states of the 1860s? Surely the ‘science’ that claimed to prove that assertion in the affirmative has now in 2009 been demonstrated to be gravely and lethally inaccurate.
But what Justice Stein is driving at is that Constitutionally you can’t be imposing such bills of attainder even with the ‘good’ intention of ‘preventing’ what might happen. The ‘preventive state’ is in many ways not compatible with the Constitution. And, I would add, the same goes for the ‘mother-hen’ school of law that is merely the old Continental, monarchy-heavy approach in a different suit of clothes.
‘Preventive’ intent does not automatically rule out ‘punitive’ effects. Nor can you say breezily that ‘prevention’ trumps the Constitutional safeguards.
Continuing to quote Brown, Justice Stein establishes that anything required by a law might constitute ‘punishment’ and it is the responsibility of the Judicial Branch to look at the whole context. This of course is precisely what the Poritz Court has resolutely avoided doing, focusing on the seat-belt and not on the effects of being strapped into your car at the edge of the cliff with the government having incited a surrounding mob with solemn warnings as to your treacherous and compulsive and uncontrollably threatening nature.
As Justice Stein insists, when it comes to impositions required by a law “we must follow the notion where it leads” and judge it there. The Poritz Court, of course, refused to do that, taking an extremely narrow approach to its task and claiming that it could not see into the future (except that it was satisfied that sex-offenders were always a threat in any future).
Justice Stein then goes on to follow the Law’s plan for, say, a Tier Two offender, as it would work out in a small community of 10,000 citizens. “Hundreds of persons would be entitled to receive the Tier Two notice and, although instructed to inform no one else about its contents, no enforcement mechanism conceivably can prevent word of mouth dissemination of the information contained in the notice”.
Exactly. There is no way that the State can control conversation among folks. And what if the local paper or radio stations decides to do a report not on the individual’s Tier Two status (which would be illegal under the Law) but ‘merely’ on what he had been convicted of (which is perfectly legal) … ? What then?
And all of this takes place, of course, in an atmosphere where the Law’s assumptions about the uncontrollable threat that sex-offenders are officially considered to be have been well-publicized and everybody has been exposed to that (mis)information.
This is a State-constructed tinder-dry wilderness simply waiting for a match. Which the State is also going to provide. (But it doesn't expect any fires.)
Add to this that a Tier Three offender’s presence will be announced to anybody “likely to encounter him”, which in all but the largest cities could include everyone in the community.
The Court’s happy-face assumption that folks won’t go off half-cocked is “contrary to human nature”, he says. And, he adds, even if the media were to follow the Law, its reporting would “as a practical matter” result in a community-wide commotion.
And he goes on: “The community’s reaction to such notice is impossible to predict, but given the normal range of human emotion one reasonably could anticipate that notice of the presence of a sex offender will trigger fear, suspicion, hostility, anger, evasive behavior, ostracism, and in some cases derision, epithets, and violence. To be sure, the sex offender’s quality of life will be adversely affected”.
So, he concludes, “to anticipate that the Community Notification Law, even as limited by the Court’s interpretation, will not visit severe, disruptive, and perhaps intolerable consequences on offenders subject to Tier Two and Tier Three notification is simply unrealistic”. Good for him – it’s about time somebody started getting close to the idea that this Law pulls everybody wayyyy too close to the Mad Hatter’s Tea Party. And in a forum of lethally serious consequences for the entire basis of American society and culture.
He doesn’t stop.
“The Court appears to conclude, however, despite any deficiencies in the classification and notification process adopted by the Legislature, that its rationality establishes its constitutionality. That is, because the Court concludes that the Legislature reasonably could determine that these statutes prevent harm to the public by mandating notice to the community of the whereabouts of previously convicted sex offenders, the Constitution does not prohibit their enactment.”
He disagrees. “The Legislature’s value judgment about these laws [based, as you recall, on no Committee work or deliberation whatsoever] is entitled to great respect, but that judgment comprises only one part of the constitutional equation.” It’s refreshing to hear somebody in authority who doesn’t simply try to hide behind the Legislature.
Indeed, he says, “the judiciary’s task is to complete the equation by evaluating the legislative determination in the context of settled constitutional principles”. Precisely what the Poritz Court has been mostly avoiding all along.
“The constitutional prohibitions against the enactment of ex post facto laws and bills of attainder reflect a valid concern about the use of the political process to punish or characterize past conduct of private citizens.”
But of course the sex-offense laws’ approach has been to characterize the sex-offender not as a private citizen (with inalienable rights and dignity) but rather to characterize him as as incorrigible monstrous threat who implicitly has indeed been ‘alienated’ from his rights and dignity as a citizen.
And the use of the phrase “political process” is telling, in light of what we know about the Legislature’s own desire to escape public censure for its generous parole policies and to pander to certain voter groups. As well as the Court’s own predisposition (especially on the part of the Chief Justice) toward this alien Continental legal philosophy and its schemes.
And he reminds us that “retroactive statutes raise particular concerns”, because “the Legislature’s unmatched powers allow it to sweep away settled expectations suddenly”. Because “its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals”. Which speaks directly to the reality of the government actually sponsoring this entire mania. And, over the course now of 15 years, we can see that the government – the national Legislature as well as the State Legislatures, and now even city and town and county governments – has continued to sustain and indeed expand this whole thing.
And, facing up squarely to the entire matrix of mania law and ‘emergency’ law, he clearly states that “the Constitution’s prohibition against ex post facto laws reflects an enduring value that transcends the most pressing concerns of this or any day and age”.
In the 1950s it was Communists (as in the late 1860s it was ex-Confederates) and “future legislatures will doubtlessly find reasons to deal harshly with other groups that pose an apparent threat to public safety”. Yes, it is a dark road that we have been started on here.
ADDENDUM
This concludes my thoughts about Justice Stein’s Dissent. I plan one more Post on this case simply to sum up – briefly, yes – what I see as the significance of this case.
But I’ll say here that I think it’s essential that the SO community makes itself aware of the large and deep picture that transcends the equally legitimate but more narrow concerns that occupy the community.
By doing so, I think that the various members of the SO community can fortify themselves as to the genuinely crucial and vital role that their efforts play in correcting what has been and still is a significant deformity to the American Constitutional system and a threat to the continued health and integrity of the unique gift that is the Constitutional and the American vision.
Wednesday, September 2, 2009
DOE V PORITZ 10
DOE V PORITZ 10
I seem to have gotten my several copies of the Opinion confused. Don’t ask me how, but there are only 10 Sections, and then Justice Stein’s fine Dissent.
So this will be a Post on Section 10; and then tomorrow I hope to have a Post up on Justice Stein’s Dissent (which is also on the Rutger’s Law Library site here, immediately following the text of the Decision).
Section 10 is entitled “Conclusion”. If only.
The Court seems to want to justify itself, without giving the whole thing away.
“We sail on truly uncharted waters”, it begins. You can only imagine what it would be like to have the most senior specialist at the State’s biggest hospital come out from the patient’s room, walk over to you in the family waiting area, look you in the eye, and start off like that – we sail on truly uncharted waters.
But the Court is right. And not only because, as it notes, “no other state has adopted such a far-reaching statute.” That was certainly a warning sign – but then again, in a mania or a manic attack, doing something nobody else would think of doing or allow themselves to do just shows how brilliant and extraordinary you are. How ‘cutting edge’ and ‘ahead of the crowd’.
They teach you how to deal with attitudes like this in psychiatry school.
And you have to ask yourself: if you are dealing with a law that you know has received no substantive or serious or even accepted legislative treatment (the Bill was not put through any Committee phase whatsoever) and that the law proposes a scheme that nobody has ever implemented in the country, and if you yourself are a Judge or a Supreme Court Justice and even you feel that you are in uncharted waters … wouldn’t you sort of feel like you should reeely reeely be careful and give this thing a careful and serious look? And kick some tire?
And of course, it’s uncharted not just because nobody has done it before. But because you are looking at the first serious insinuation of an alien legal philosophy into the process and body of American law and jurisprudence.
But you don’t want to admit that. So even if it’s true that these are uncharted waters – that doesn’t mean that the huge rocks whose tips are poking up above the surface aren’t visible to the naked judicial eye. No prudent mariner is going to try and certify this course and passage as OK; not only for his own vessel but for the entire convoy that relies on his judgment.
But, rather, like the captain of the Titanic, you figure that you’re one of the most senior captains and how could you go seriously wrong? And anyway, you’re on an unsinkable ship, so what’s the problem? Into the dark night, into a suspected berg-field, at high speed and not even any moonlight. What, you worry? It would be unprofessional to display any worry, and would betray an unbecoming lack of self-confidence.
And anyway, you don’t want to be embarrassed in front of everybody who’s expecting you to deliver the goods and come into port right on time. You don’t want to be late in front of everybody whose esteem you value.
Nah – this will be a world-class example of just how masterful you are. Maintain course and speed!
Anyway, it’s not your fault. It’s a worrisome scheme, but “the statute before us, however, mandates it”. So it’s the Legislature’s fault if anything goes wrong.
But then you still can’t let this thing go – a psychiatrist would have a field day with this Section. “Despite the unavoidable uncertainty of our conclusion, we remain convinced that the statute is constitutional.”
The Court’s own doubts are not alone; the Court is very much aware through those Amicus Curiae Briefs just how much professional – legal and psychological – objection exists to the entire scheme.
So it has to come up with some trump-play that will shore up its position and – ultimately – its own performance in this saga. “To rule otherwise [i.e. that the statute is not constitutional] is to find that society is unable to protect itself from sexual predators by adopting the simple remedy of informing the public of their presence.”
Shrewd. And sly. First of all, there’s that conflation of ‘sex offender’ with ‘sexual predator’, which is not only a more vivid and ominous term, but also describes very few actual sex-offenders.
Second, the Court is running the same game here that the US Supremem Court would later run in Bush v. Gore: having already decided what the outcome must be, it will do whatever it has to in order to justify that outcome.
In Poritz, the Court has decided that its alien legal philosophy (that government-weighted presumption that the government's right-to-protect (hiding here behind "the public") trumps any effective Constitutional protections. In Bush v. Gore the US Supreme Court justified its interference in a State recount by claiming the 'emergency' of the country being without a President for a period of time, although such an outcome was very highly improbable.
Though Justice Sandra Day O'Connor, after her retirement, revealed in a chatty talk with a 'reliable' audience that she "didn't want a Democrat appointing my successor". In case you were thinking that the Court in that case was thinking primarily of the Constitution.
So you can see many things at work here. A) The increasing tendency for Court's to impose what it thinks is the desirable way to proceed (precisely as John Rawls had urged 'enlightened' and 'elite' jurists to do; B) The increasing use of "the public" or "the public as victim" as a cover for what is in effect a monstrous and alien expansion of the government police power; C) The increasing use of "emergency" - however a court chooses to define it - as a reason for doing an end-run around traditional and vital deliberation, not only among the public but even among legislators; and this is on top of what we have seen in Poritz and all the sex-offense legislation, D) the blatant selection of highly dubious 'science' and 'research' to the equally blatant exclusion of any opposition knowledge, no matter how significant.
At the risk of repeating myself, please let me point out here that this bundle of elements comes to these shores trailing clouds of an ominous and foreboding history.
Third, the Court is here admitting that it is not judging the scheme itself, but rather it is primarily trying to go along with what it hopes are the successful effects of the scheme once the Court approves it and turns it loose. To find the scheme unconstitutional is not to ‘say’ that society can’t ‘protect itself’. It’s simply to say that the scheme is unconstitutional and society – and the Legislature – will have to spend a little more time and effort addressing the problem in order to deal with matters Constitutionally – which is what America, and the Court, are all about. Or they are about nothing.
Instead, accepting that almost no time and effort went into legislative and public deliberation, the Court yet will tell the public and the Legislature that it’s OK to do this sort of thing if you’re reeely reeely worked up about it. This is precisely the type of situation where the Framers expected the Judicial Branch to stand up for the Constitution. Let the Constitution be upheld, though the heavens may fall – that sort of thing.
But not for this Court. Rather than try to stop the stampede, rather than try to demonstrate to the agitated public and Legislature what genuine mature Constitutional analysis deliberation really is – rather than that the Court will go along, carefully covering its tracks by expressing a tasteful bit of doubt and blaming the Legislature for whatever might go wrong, and tinkering just enough to be able to say that it did its bit of Constitutional gate-keeping.
But it hasn’t. It tinkered with the seatbelts, while accepting meekly that the mob and the officials were going to send the car over the cliff. Such judicial cowardice has been seen many times in recent history – and it hasn’t ended well.
And of course there will be no such thing as "simply informing the public" because once the State has tagged them, with Court approval, as "repetitive and compulsive" monsters who are a permanent threat to themselves and their children, then the public will take things rather seriously indeed.
I can’t help thinking of the film “Judgment at Nuremberg” from 1961.The now-condemned Nazi judge (played by Burt Lancaster) says to the American Chief Justice of the Nuremberg tribunal (played by Spencer Tracy): “It wasn’t supposed to turn out like this; we meant well”. To which Tracy replies simply and immediately: “It had to turn out like this, from the very first moment …” In this case, from the very first moment that the Court determined to approve this Law about which so many competent professionals, and even the Court itself deep down, harbored serious doubts.
And of course, as is now a cutesy insider-joke among law enforcement and prosecutors: “Megan’s Law would not have saved Megan”*. The Law itself bears no effective relationship in its effects to the goals so piously announced by the Legislature and accepted at face value by the Court. In fact, it is quite possible that the original circumstances of the crime were not relevant to the Law’s schematic at all; in which case you have to imagine that a whole bunch of interested folks had already put the scheme together and were simply waiting for a ‘match’ to light the fuse. And if that’s so, then we can’t credit Bush and Cheney with coming up all on their own with the idea of starting the Iraq War on the basis of grossly inaccurate assertions.
Wheels within wheels. This is not how things are supposed to be done. And the violation of Truth, let alone of the Constitution itself, cannot end well for anybody involved. Which, actually, is all of us.
The Court tries one last time to put out a fire that it knows it has helped to set, but looks to place the blame elsewhere: “That the remedy has a potentially severe effect arises from no fault of the government, or of society, but rather from the nature of the remedy and the problem; it is an unavoidable consequence of the compelling necessity to design a remedy.”
It again minimized the damage to those convicted of sex-offenses: The “severe” effect is only “potential”. I expect that to be tagged as monstrously as those convicted are going to be tagged, and have that trumpeted all around by government or media (and the internet, which was soon included as a weapon or ‘tool’ for this scheme) … would make it hard to live even in a community of mendicant monks or nuns. But in the average – ‘normal’, if you prefer – American neighborhood or city or town, this was going to be more than a Scarlet Letter – it was going to be a colored star. And then, before long, it would be put in government electronic databases, ones that were interlinked.
And the Opinion now would have everyone believe that it’s not the government’s fault (Legislature or Court) or society (whom the Court is buttering up to accept this scheme and use it) but simply the inevitable consequence of “the compelling necessity to design a remedy”. But how much ‘design’ could go into a plan that was so hastily and (deliberately?) without serious legislative consideration enacted?
It is inconceivable to accept with a straight face that this scheme is reliably grounded and suitable for implementation in the American setting, given the legislative history. And the Court must have known the legislative history.
In the alternative, perhaps the scheme had been already put together and its advocates were simply waiting for the right ‘match’ to light the fuse.
If so, where did they get the scheme in the first place? And can it be reasonably assumed that the recent, unhappy Continental European models discussed in earlier Posts were not consulted?
And if the “necessity” was so “compelling” – presumably because the matter was so important, then shouldn’t the Legislature have spent a great deal of time and energy to get the thing right?
But of course, if the “necessity” and the “compelling” nature of it were due rather to political considerations, then things start to make more sense. But it’s a dark vision then: the Legislature was primarily politically motivated, and this whole scheme was ‘politics’ more than anything else. Oy.
In that regard, the article that I’ve linked to in the Notes below offers an ominous bit of information: Megan Kanka’s killer had been paroled by the State and had completed some sort of sex-offender therapy regimen. And the State had actually been paroling a very large percentage of inmates of all sorts. So it becomes much more possible that the Legislature was motivated not only by ‘politics’, but by its own desperate need to avoid being held responsible.
The solution? Call all sex-offenders “repetitive and compulsive” and insinuate that even after they have served their time – even for a first offense – and have re-integrated back into community for years, they are still ‘sex offenders’, monstrous and compelled to repeat their actions and therefore a secret and hidden threat to the citizens and ‘the children’.
Which is a neat two-fer because it also gets the Legislature off the hook: we were bamboozled by shrewd vampire-like monsters that can pretend to be ‘normal’ and ‘decent’.
And the solution? We, the Legislature, will now take sweeping action and do whatever it takes. And you should admire us for that and also realize how mad we are that these sly monsters tricked us.
The Court again goes back to the tea-leaves: “There is no point in predicting the extent of the potential ostracism, in avoiding the conclusion that some ostracism will result …”. Of course what the Court has slyly avoided all along here is not that there will be some ostracism, but rather it has continually and blatantly minimized the consequences to targeted offenders: what they will experience, and what the past 15 years have clearly demonstrated although it was perfectly predictable back in 1995, is that this is not mere ‘ostracism’ but rather a civic death-sentence, of the type that the Framers would never have countenanced.
It continues immediately: “… or in calming concerns by observing that the offenders themselves are responsible for their plight for having committed their crimes in the first place …”. This is beyond ‘sly’, this is an almost treacherous ‘blaming’. First, nobody convicted of any crime can be held responsible if a Legislature under the influence of an induced public mania (and seeking to avoid blame itself) suddenly turns a ‘crime’ into a ‘monstrous and permanent threat’. And then on the basis of that assertion, undermines the entire traditional approach to American law by introducing an alien ‘permanent convict class’ into both American law and society.
I would say that the convicted offenders (to the extent that they are genuinely so) cannot be blamed because nobody in their right mind could ever have imagined that an American Legislature and an American Court would ever have introduced such a scheme, trailing such anti-Constitutional and un-American clouds of conceptual and historical frakkery, into this country.
I am not trying here to minimize actual sexual abuse (and worse) of children or of anybody else. Nor am I endorsing the ‘game’ approach to criminal law (engaged in by prosecutors and police as well as perpetrators): that the whole thing is a game of ‘tag’ and you do what you have to do to ‘tag’ somebody or to avoid being ‘tagged’.
I am speaking about a much deeper level here: that no citizens can be expected to imagine, in their overall understanding of their lives within a long-established national community, that suddenly that community’s guiding philosophy would morph overnight into something that its Founders precisely sought to prevent it from ever becoming.
Which is precisely what the Legislature and the Court are about here.
“Here government has done all it can to confine that impact [to the targeted offenders], allowing it only where clearly necessary, to effect public safety …”
Yet the government has done no such thing. “All it can” cannot in any sense be construed as an accurate description of the utterly hasty nature of the legislative process in the matter of this Law. Nor can the requirements of this Law be truthfully construed as “clearly necessary” when so much clear and urgent and serious professional concern was there to be considered, but was instead deliberately avoided or minimized or otherwise pooh-poohed. And it is clear now, and was most reasonably forseeable then, that this scheme has done verrrry little to foster public safety and indeed is increasingly weakening public safety.
“We must not prejudge society”, the Court preaches, “with the ogre of vigilantism or harassment …”. And yet no student of history or social science can conceivably ignore the demonstrated potential for publics to become most ugly indeed – after they are subjected to a deliberate and sustained policy of ‘threat-amplification’ and assured by their government and their apparent elites that they are the targets of a monstrous and secret threat to themselves and to their children.
The Court proceeds immediately: “… although its [vigilantism’s] potential obviously calls for the vigorous steps suggested by the Attorney General …”. I ask any reader just how much any State or Federal agency has done in 15 years to minimize the negative potentials of a highly and deliberately inflamed public? Surely the incessant and frequent intensification of these laws – and this mania – over the past decade and a half itself constitutes an ongoing and deliberate inflammatory effort on the part of State and national legislatures, and now even municipal and county governments as well.
Worse, as I’ve noted in earlier Posts, the greatest danger to the targeted offenders is not posed by outright “vigilantism” and “ostracism”. This isn’t so much a matter of pitchforks and torches (although there have been more violent episodes than the Courts acknowledge) or even of folks not greeting you on the street when you’re walking down the sidewalk. This is a matter of a profound fearful and judgmental revulsion against ‘repetitive and compulsive and monstrous threats’ that chokes out any possibility of employment or conducting a life with any reasonable opportunities for Work and Love, job and relationships.
And in that regard I warn that once a populace and its government have tasted such ‘blood’ – the weirdly satisfying ‘rush’ of freely and openly reviling a designated group of ‘others’ (and American Citizens at that!) … once they have tasted that ‘blood’, then it will not only be hard to wean them off it, but the process will not pass – as a mania does – but rather will intensify, as a profound regression and degradation does.
Look what happened to the German people: first it was the ‘lives unworthy of life’ that threatened the communal ‘purity’ and were done away with; then designated classes of persons – group after suddenly ‘identified’ group; then an entire religion … all the targets of an increasingly debauched populace, led by its government and its elites.
You can see where this sort of thing can go.
“We must not assume that those in responsible positions will violate the intent of this law by giving notification far beyond that which is authorized, and we must not assume that the press, for whatever reason, will disregard the notification confinement which this law requires.”
But “those in responsible positions” – the Legislature most vividly of all – have already ensured with their erroneous and deliberately hasty Findings that the entire civil population and the State’s police and prosecutorial bureaucracies understand the targeted offenders to be “repetitive and compulsive” monsters who constitute an ongoing and hidden threat to the citizens and their children. How in any rational universe of possibility can that Legislature or the Court then seriously plan to maintain any control whatsoever over public reactions?
And the media? Of course they won’t simply be publishing the actual text of the Registry lists … They don’t have to. They merely have to ‘report’ the cases – from arrest and any attendant speculation through trial and any ‘reliable’ science that is brought in by the State – and if there will be many cases, then there’s going to be a lot of public inflammation. And this is a hugely predictable dynamic, especially when one considers that even in the early 1990s there was concern that the media were becoming too sensationalist, dependent upon good-vs-evil and victimization scripts around which to organize their ‘stories’.
The Legislature and now the Court have loosed awefull public and societal dynamics, historically demonstrated to burn beyond any control, and now content themselves with staring at the text of the Law (which is bad enough as it is) and claim that they can’t ‘see’ anything that might go seriously wrong. They are all staring at the seatbelt as the car and offender teeter over the cliff, and carefully examine – and even adjust – the belt as the crowds deliberately inflamed hover nearby to do the heavy-lifting (or pushing).
And on the basis of their official examination of belt and buckle, they not only proclaim that everything appears to be in order, but then feel pretty good about themselves and their analysis. And figure they’ve done a good day’s work.
“We are satisfied that this statute, rationally and carefully addressed to a pressing societal problem, is not what those who drafted the Constitution had in mind as an abuse of government’s power to punish.”
If the Framers did not consider this sort of thing as an abuse of the government’s power to punish (and that’s a highly debatable proposition itself) then it’s only because the Framers would no more have imagined this sort of thing being perpetrated by an American government than they would have imagined Martians landing and setting up shop.
But I myself think that the Framers most certainly would have imagined this sort of thing as happening. It is precisely the Continental monarchical approach to law. As the Court – amazingly – goes right on to demonstrate: “What government faced here was a difficult problem, a question of policy, and it understandably decided that public safety was more important than the potential for unfair, and even severe, impact on those who had previously committed sex offenses”.
What indeed are they teaching in law schools these days? I’ll get around to a Post on this but I’ll just note this here. With the fall of the Soviet Union in 1991 – and it had pretty much become a dead letter by 1989 – and certainly the accession of the Clinton Administration (not a ‘political position’ statement, just locating this era in historical time) some of this country’s own domestic developments that had been building for a couple of decades were given a much freer rein.
Most relevant to our considerations here was the embrace by legal elites of the Continental approach to law, in the form of what was called ‘responsibility to protect’. This led to the ‘preventive’ approach to law and even more ominously to the ‘preventive state’. We saw it develop in foreign affairs with what the international diplomats call “R2P”, responsibility to protect. It holds that nations may intervene in another nation’s sovereignty when they feel that bad things are being done to people in that nation. Yes, you saw it in the Balkans in the mid-1990s and in the run-up to the Iraq War.
Domestically, we saw its emergence in the sex-offense ‘science’ that underlies the sex-offense laws. And, as you have seen in this Opinion and the Law that it is defending, there was a notable readiness on the part of public officials and judicial elites to embrace it.
You’ll also note its presence in the comments of both Presidents Bush and Obama when they say that the responsibility of the President is to “protect the American people” (and the implication is that they’ll do whatever it takes …). The actual Oath of Office is that the President will “preserve, protect and defend the Constitution” … and you can see in recent national and foreign affairs the way in which somehow hugely un-Constitutional things have been done in the name of “protection”.
Where the military was sent in on the foreign stage, the ‘police power’ of the government was sent in on the domestic stage.
Things haven’t turned out so well. Not hardly.
ADDENDUM
This completes my Posts on the text of the Poritz Opinion. I will get a Post up on the remarkable Dissent by Justice Stein – tomorrow, I hope.
Meanwhile, I would like to urge every reader to give careful thought to what is being discussed here. I firmly believe that the sex-offense laws are not only grievously and most improperly punitive to targeted offenders (whether genuinely guilty or otherwise), but also most lethally dangerous to the entire American polity and the civil community of the American people.
NOTES
*This article is brief and well worth a read in its entirety.
I seem to have gotten my several copies of the Opinion confused. Don’t ask me how, but there are only 10 Sections, and then Justice Stein’s fine Dissent.
So this will be a Post on Section 10; and then tomorrow I hope to have a Post up on Justice Stein’s Dissent (which is also on the Rutger’s Law Library site here, immediately following the text of the Decision).
Section 10 is entitled “Conclusion”. If only.
The Court seems to want to justify itself, without giving the whole thing away.
“We sail on truly uncharted waters”, it begins. You can only imagine what it would be like to have the most senior specialist at the State’s biggest hospital come out from the patient’s room, walk over to you in the family waiting area, look you in the eye, and start off like that – we sail on truly uncharted waters.
But the Court is right. And not only because, as it notes, “no other state has adopted such a far-reaching statute.” That was certainly a warning sign – but then again, in a mania or a manic attack, doing something nobody else would think of doing or allow themselves to do just shows how brilliant and extraordinary you are. How ‘cutting edge’ and ‘ahead of the crowd’.
They teach you how to deal with attitudes like this in psychiatry school.
And you have to ask yourself: if you are dealing with a law that you know has received no substantive or serious or even accepted legislative treatment (the Bill was not put through any Committee phase whatsoever) and that the law proposes a scheme that nobody has ever implemented in the country, and if you yourself are a Judge or a Supreme Court Justice and even you feel that you are in uncharted waters … wouldn’t you sort of feel like you should reeely reeely be careful and give this thing a careful and serious look? And kick some tire?
And of course, it’s uncharted not just because nobody has done it before. But because you are looking at the first serious insinuation of an alien legal philosophy into the process and body of American law and jurisprudence.
But you don’t want to admit that. So even if it’s true that these are uncharted waters – that doesn’t mean that the huge rocks whose tips are poking up above the surface aren’t visible to the naked judicial eye. No prudent mariner is going to try and certify this course and passage as OK; not only for his own vessel but for the entire convoy that relies on his judgment.
But, rather, like the captain of the Titanic, you figure that you’re one of the most senior captains and how could you go seriously wrong? And anyway, you’re on an unsinkable ship, so what’s the problem? Into the dark night, into a suspected berg-field, at high speed and not even any moonlight. What, you worry? It would be unprofessional to display any worry, and would betray an unbecoming lack of self-confidence.
And anyway, you don’t want to be embarrassed in front of everybody who’s expecting you to deliver the goods and come into port right on time. You don’t want to be late in front of everybody whose esteem you value.
Nah – this will be a world-class example of just how masterful you are. Maintain course and speed!
Anyway, it’s not your fault. It’s a worrisome scheme, but “the statute before us, however, mandates it”. So it’s the Legislature’s fault if anything goes wrong.
But then you still can’t let this thing go – a psychiatrist would have a field day with this Section. “Despite the unavoidable uncertainty of our conclusion, we remain convinced that the statute is constitutional.”
The Court’s own doubts are not alone; the Court is very much aware through those Amicus Curiae Briefs just how much professional – legal and psychological – objection exists to the entire scheme.
So it has to come up with some trump-play that will shore up its position and – ultimately – its own performance in this saga. “To rule otherwise [i.e. that the statute is not constitutional] is to find that society is unable to protect itself from sexual predators by adopting the simple remedy of informing the public of their presence.”
Shrewd. And sly. First of all, there’s that conflation of ‘sex offender’ with ‘sexual predator’, which is not only a more vivid and ominous term, but also describes very few actual sex-offenders.
Second, the Court is running the same game here that the US Supremem Court would later run in Bush v. Gore: having already decided what the outcome must be, it will do whatever it has to in order to justify that outcome.
In Poritz, the Court has decided that its alien legal philosophy (that government-weighted presumption that the government's right-to-protect (hiding here behind "the public") trumps any effective Constitutional protections. In Bush v. Gore the US Supreme Court justified its interference in a State recount by claiming the 'emergency' of the country being without a President for a period of time, although such an outcome was very highly improbable.
Though Justice Sandra Day O'Connor, after her retirement, revealed in a chatty talk with a 'reliable' audience that she "didn't want a Democrat appointing my successor". In case you were thinking that the Court in that case was thinking primarily of the Constitution.
So you can see many things at work here. A) The increasing tendency for Court's to impose what it thinks is the desirable way to proceed (precisely as John Rawls had urged 'enlightened' and 'elite' jurists to do; B) The increasing use of "the public" or "the public as victim" as a cover for what is in effect a monstrous and alien expansion of the government police power; C) The increasing use of "emergency" - however a court chooses to define it - as a reason for doing an end-run around traditional and vital deliberation, not only among the public but even among legislators; and this is on top of what we have seen in Poritz and all the sex-offense legislation, D) the blatant selection of highly dubious 'science' and 'research' to the equally blatant exclusion of any opposition knowledge, no matter how significant.
At the risk of repeating myself, please let me point out here that this bundle of elements comes to these shores trailing clouds of an ominous and foreboding history.
Third, the Court is here admitting that it is not judging the scheme itself, but rather it is primarily trying to go along with what it hopes are the successful effects of the scheme once the Court approves it and turns it loose. To find the scheme unconstitutional is not to ‘say’ that society can’t ‘protect itself’. It’s simply to say that the scheme is unconstitutional and society – and the Legislature – will have to spend a little more time and effort addressing the problem in order to deal with matters Constitutionally – which is what America, and the Court, are all about. Or they are about nothing.
Instead, accepting that almost no time and effort went into legislative and public deliberation, the Court yet will tell the public and the Legislature that it’s OK to do this sort of thing if you’re reeely reeely worked up about it. This is precisely the type of situation where the Framers expected the Judicial Branch to stand up for the Constitution. Let the Constitution be upheld, though the heavens may fall – that sort of thing.
But not for this Court. Rather than try to stop the stampede, rather than try to demonstrate to the agitated public and Legislature what genuine mature Constitutional analysis deliberation really is – rather than that the Court will go along, carefully covering its tracks by expressing a tasteful bit of doubt and blaming the Legislature for whatever might go wrong, and tinkering just enough to be able to say that it did its bit of Constitutional gate-keeping.
But it hasn’t. It tinkered with the seatbelts, while accepting meekly that the mob and the officials were going to send the car over the cliff. Such judicial cowardice has been seen many times in recent history – and it hasn’t ended well.
And of course there will be no such thing as "simply informing the public" because once the State has tagged them, with Court approval, as "repetitive and compulsive" monsters who are a permanent threat to themselves and their children, then the public will take things rather seriously indeed.
I can’t help thinking of the film “Judgment at Nuremberg” from 1961.The now-condemned Nazi judge (played by Burt Lancaster) says to the American Chief Justice of the Nuremberg tribunal (played by Spencer Tracy): “It wasn’t supposed to turn out like this; we meant well”. To which Tracy replies simply and immediately: “It had to turn out like this, from the very first moment …” In this case, from the very first moment that the Court determined to approve this Law about which so many competent professionals, and even the Court itself deep down, harbored serious doubts.
And of course, as is now a cutesy insider-joke among law enforcement and prosecutors: “Megan’s Law would not have saved Megan”*. The Law itself bears no effective relationship in its effects to the goals so piously announced by the Legislature and accepted at face value by the Court. In fact, it is quite possible that the original circumstances of the crime were not relevant to the Law’s schematic at all; in which case you have to imagine that a whole bunch of interested folks had already put the scheme together and were simply waiting for a ‘match’ to light the fuse. And if that’s so, then we can’t credit Bush and Cheney with coming up all on their own with the idea of starting the Iraq War on the basis of grossly inaccurate assertions.
Wheels within wheels. This is not how things are supposed to be done. And the violation of Truth, let alone of the Constitution itself, cannot end well for anybody involved. Which, actually, is all of us.
The Court tries one last time to put out a fire that it knows it has helped to set, but looks to place the blame elsewhere: “That the remedy has a potentially severe effect arises from no fault of the government, or of society, but rather from the nature of the remedy and the problem; it is an unavoidable consequence of the compelling necessity to design a remedy.”
It again minimized the damage to those convicted of sex-offenses: The “severe” effect is only “potential”. I expect that to be tagged as monstrously as those convicted are going to be tagged, and have that trumpeted all around by government or media (and the internet, which was soon included as a weapon or ‘tool’ for this scheme) … would make it hard to live even in a community of mendicant monks or nuns. But in the average – ‘normal’, if you prefer – American neighborhood or city or town, this was going to be more than a Scarlet Letter – it was going to be a colored star. And then, before long, it would be put in government electronic databases, ones that were interlinked.
And the Opinion now would have everyone believe that it’s not the government’s fault (Legislature or Court) or society (whom the Court is buttering up to accept this scheme and use it) but simply the inevitable consequence of “the compelling necessity to design a remedy”. But how much ‘design’ could go into a plan that was so hastily and (deliberately?) without serious legislative consideration enacted?
It is inconceivable to accept with a straight face that this scheme is reliably grounded and suitable for implementation in the American setting, given the legislative history. And the Court must have known the legislative history.
In the alternative, perhaps the scheme had been already put together and its advocates were simply waiting for the right ‘match’ to light the fuse.
If so, where did they get the scheme in the first place? And can it be reasonably assumed that the recent, unhappy Continental European models discussed in earlier Posts were not consulted?
And if the “necessity” was so “compelling” – presumably because the matter was so important, then shouldn’t the Legislature have spent a great deal of time and energy to get the thing right?
But of course, if the “necessity” and the “compelling” nature of it were due rather to political considerations, then things start to make more sense. But it’s a dark vision then: the Legislature was primarily politically motivated, and this whole scheme was ‘politics’ more than anything else. Oy.
In that regard, the article that I’ve linked to in the Notes below offers an ominous bit of information: Megan Kanka’s killer had been paroled by the State and had completed some sort of sex-offender therapy regimen. And the State had actually been paroling a very large percentage of inmates of all sorts. So it becomes much more possible that the Legislature was motivated not only by ‘politics’, but by its own desperate need to avoid being held responsible.
The solution? Call all sex-offenders “repetitive and compulsive” and insinuate that even after they have served their time – even for a first offense – and have re-integrated back into community for years, they are still ‘sex offenders’, monstrous and compelled to repeat their actions and therefore a secret and hidden threat to the citizens and ‘the children’.
Which is a neat two-fer because it also gets the Legislature off the hook: we were bamboozled by shrewd vampire-like monsters that can pretend to be ‘normal’ and ‘decent’.
And the solution? We, the Legislature, will now take sweeping action and do whatever it takes. And you should admire us for that and also realize how mad we are that these sly monsters tricked us.
The Court again goes back to the tea-leaves: “There is no point in predicting the extent of the potential ostracism, in avoiding the conclusion that some ostracism will result …”. Of course what the Court has slyly avoided all along here is not that there will be some ostracism, but rather it has continually and blatantly minimized the consequences to targeted offenders: what they will experience, and what the past 15 years have clearly demonstrated although it was perfectly predictable back in 1995, is that this is not mere ‘ostracism’ but rather a civic death-sentence, of the type that the Framers would never have countenanced.
It continues immediately: “… or in calming concerns by observing that the offenders themselves are responsible for their plight for having committed their crimes in the first place …”. This is beyond ‘sly’, this is an almost treacherous ‘blaming’. First, nobody convicted of any crime can be held responsible if a Legislature under the influence of an induced public mania (and seeking to avoid blame itself) suddenly turns a ‘crime’ into a ‘monstrous and permanent threat’. And then on the basis of that assertion, undermines the entire traditional approach to American law by introducing an alien ‘permanent convict class’ into both American law and society.
I would say that the convicted offenders (to the extent that they are genuinely so) cannot be blamed because nobody in their right mind could ever have imagined that an American Legislature and an American Court would ever have introduced such a scheme, trailing such anti-Constitutional and un-American clouds of conceptual and historical frakkery, into this country.
I am not trying here to minimize actual sexual abuse (and worse) of children or of anybody else. Nor am I endorsing the ‘game’ approach to criminal law (engaged in by prosecutors and police as well as perpetrators): that the whole thing is a game of ‘tag’ and you do what you have to do to ‘tag’ somebody or to avoid being ‘tagged’.
I am speaking about a much deeper level here: that no citizens can be expected to imagine, in their overall understanding of their lives within a long-established national community, that suddenly that community’s guiding philosophy would morph overnight into something that its Founders precisely sought to prevent it from ever becoming.
Which is precisely what the Legislature and the Court are about here.
“Here government has done all it can to confine that impact [to the targeted offenders], allowing it only where clearly necessary, to effect public safety …”
Yet the government has done no such thing. “All it can” cannot in any sense be construed as an accurate description of the utterly hasty nature of the legislative process in the matter of this Law. Nor can the requirements of this Law be truthfully construed as “clearly necessary” when so much clear and urgent and serious professional concern was there to be considered, but was instead deliberately avoided or minimized or otherwise pooh-poohed. And it is clear now, and was most reasonably forseeable then, that this scheme has done verrrry little to foster public safety and indeed is increasingly weakening public safety.
“We must not prejudge society”, the Court preaches, “with the ogre of vigilantism or harassment …”. And yet no student of history or social science can conceivably ignore the demonstrated potential for publics to become most ugly indeed – after they are subjected to a deliberate and sustained policy of ‘threat-amplification’ and assured by their government and their apparent elites that they are the targets of a monstrous and secret threat to themselves and to their children.
The Court proceeds immediately: “… although its [vigilantism’s] potential obviously calls for the vigorous steps suggested by the Attorney General …”. I ask any reader just how much any State or Federal agency has done in 15 years to minimize the negative potentials of a highly and deliberately inflamed public? Surely the incessant and frequent intensification of these laws – and this mania – over the past decade and a half itself constitutes an ongoing and deliberate inflammatory effort on the part of State and national legislatures, and now even municipal and county governments as well.
Worse, as I’ve noted in earlier Posts, the greatest danger to the targeted offenders is not posed by outright “vigilantism” and “ostracism”. This isn’t so much a matter of pitchforks and torches (although there have been more violent episodes than the Courts acknowledge) or even of folks not greeting you on the street when you’re walking down the sidewalk. This is a matter of a profound fearful and judgmental revulsion against ‘repetitive and compulsive and monstrous threats’ that chokes out any possibility of employment or conducting a life with any reasonable opportunities for Work and Love, job and relationships.
And in that regard I warn that once a populace and its government have tasted such ‘blood’ – the weirdly satisfying ‘rush’ of freely and openly reviling a designated group of ‘others’ (and American Citizens at that!) … once they have tasted that ‘blood’, then it will not only be hard to wean them off it, but the process will not pass – as a mania does – but rather will intensify, as a profound regression and degradation does.
Look what happened to the German people: first it was the ‘lives unworthy of life’ that threatened the communal ‘purity’ and were done away with; then designated classes of persons – group after suddenly ‘identified’ group; then an entire religion … all the targets of an increasingly debauched populace, led by its government and its elites.
You can see where this sort of thing can go.
“We must not assume that those in responsible positions will violate the intent of this law by giving notification far beyond that which is authorized, and we must not assume that the press, for whatever reason, will disregard the notification confinement which this law requires.”
But “those in responsible positions” – the Legislature most vividly of all – have already ensured with their erroneous and deliberately hasty Findings that the entire civil population and the State’s police and prosecutorial bureaucracies understand the targeted offenders to be “repetitive and compulsive” monsters who constitute an ongoing and hidden threat to the citizens and their children. How in any rational universe of possibility can that Legislature or the Court then seriously plan to maintain any control whatsoever over public reactions?
And the media? Of course they won’t simply be publishing the actual text of the Registry lists … They don’t have to. They merely have to ‘report’ the cases – from arrest and any attendant speculation through trial and any ‘reliable’ science that is brought in by the State – and if there will be many cases, then there’s going to be a lot of public inflammation. And this is a hugely predictable dynamic, especially when one considers that even in the early 1990s there was concern that the media were becoming too sensationalist, dependent upon good-vs-evil and victimization scripts around which to organize their ‘stories’.
The Legislature and now the Court have loosed awefull public and societal dynamics, historically demonstrated to burn beyond any control, and now content themselves with staring at the text of the Law (which is bad enough as it is) and claim that they can’t ‘see’ anything that might go seriously wrong. They are all staring at the seatbelt as the car and offender teeter over the cliff, and carefully examine – and even adjust – the belt as the crowds deliberately inflamed hover nearby to do the heavy-lifting (or pushing).
And on the basis of their official examination of belt and buckle, they not only proclaim that everything appears to be in order, but then feel pretty good about themselves and their analysis. And figure they’ve done a good day’s work.
“We are satisfied that this statute, rationally and carefully addressed to a pressing societal problem, is not what those who drafted the Constitution had in mind as an abuse of government’s power to punish.”
If the Framers did not consider this sort of thing as an abuse of the government’s power to punish (and that’s a highly debatable proposition itself) then it’s only because the Framers would no more have imagined this sort of thing being perpetrated by an American government than they would have imagined Martians landing and setting up shop.
But I myself think that the Framers most certainly would have imagined this sort of thing as happening. It is precisely the Continental monarchical approach to law. As the Court – amazingly – goes right on to demonstrate: “What government faced here was a difficult problem, a question of policy, and it understandably decided that public safety was more important than the potential for unfair, and even severe, impact on those who had previously committed sex offenses”.
What indeed are they teaching in law schools these days? I’ll get around to a Post on this but I’ll just note this here. With the fall of the Soviet Union in 1991 – and it had pretty much become a dead letter by 1989 – and certainly the accession of the Clinton Administration (not a ‘political position’ statement, just locating this era in historical time) some of this country’s own domestic developments that had been building for a couple of decades were given a much freer rein.
Most relevant to our considerations here was the embrace by legal elites of the Continental approach to law, in the form of what was called ‘responsibility to protect’. This led to the ‘preventive’ approach to law and even more ominously to the ‘preventive state’. We saw it develop in foreign affairs with what the international diplomats call “R2P”, responsibility to protect. It holds that nations may intervene in another nation’s sovereignty when they feel that bad things are being done to people in that nation. Yes, you saw it in the Balkans in the mid-1990s and in the run-up to the Iraq War.
Domestically, we saw its emergence in the sex-offense ‘science’ that underlies the sex-offense laws. And, as you have seen in this Opinion and the Law that it is defending, there was a notable readiness on the part of public officials and judicial elites to embrace it.
You’ll also note its presence in the comments of both Presidents Bush and Obama when they say that the responsibility of the President is to “protect the American people” (and the implication is that they’ll do whatever it takes …). The actual Oath of Office is that the President will “preserve, protect and defend the Constitution” … and you can see in recent national and foreign affairs the way in which somehow hugely un-Constitutional things have been done in the name of “protection”.
Where the military was sent in on the foreign stage, the ‘police power’ of the government was sent in on the domestic stage.
Things haven’t turned out so well. Not hardly.
ADDENDUM
This completes my Posts on the text of the Poritz Opinion. I will get a Post up on the remarkable Dissent by Justice Stein – tomorrow, I hope.
Meanwhile, I would like to urge every reader to give careful thought to what is being discussed here. I firmly believe that the sex-offense laws are not only grievously and most improperly punitive to targeted offenders (whether genuinely guilty or otherwise), but also most lethally dangerous to the entire American polity and the civil community of the American people.
NOTES
*This article is brief and well worth a read in its entirety.
Subscribe to:
Posts (Atom)
Posts
