Saturday, September 26, 2009


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?”

1 comment:

  1. You couldn't have said this any better. This is but the begining to the end of our country as we once new it.
    The same thing happened in Nazi Germany as you pionted out but against another group of society and that was the begining of the end there. The people in our country take no pride any more in there government, they are the ones that tell our politicians what they want. If a person just goes along like blind sheep they have no one to blame but themselves when the Government targets them next.