Tuesday, October 27, 2009


Just a point to fill out what I had mentioned in the immediately previous Post.

I think you can see – in a tactic that dates back almost 30 years and predates even the McMartin Pre-School cases of the early 1980s – what happens when a situation is ‘selectively’ presented to the public by an advocacy for the purposes of eliciting public support or approval (which almost always requires the pre-step of igniting public fear or public rage – never a thing to be undertaken lightly).

In both the MADD Brief (presumably ‘liberal’) and Chief Justice’s Dissent (avowedly ‘conservative’), we see a selective ignoring of any downside or negative consequences to their desired outcome. Thus MADD emphasizes (using inaccurate imagery as well as inflammatory vocabulary) the ‘violent crime’ without mentioning that the worst-case outcome is only potential; the Dissent – and from the most senior jurist in the nation – conducts an analysis that either fails to consider or willfully ignores the possibly (or probable) negative consequences to the Constitution and the Constitutional ethos.

This type of ‘presentation’ mimics, as I have mentioned in other Posts, the corporate and certainly military-industrial practices of ‘selling’: give an exaggerated view of the problem that your product or service is designed to ‘solve’; then give a worst-case scenario of what happens if the problem continues at this level of threat or damage; then give a best-case scenario of what will happen if your product or service is purchased.

This is selling, and this is how it’s done. Let the buyer beware and these are the hazards of a commercially-oriented culture and civilization.

BUT: this approach to things has migrated to law and policy, to legislation and to law enforcement. And this unleashes a legion of new troubles.

Legislators and public opinion are stampeded into a highly emotional state; so much so that they overlook the un-mentioned ‘downside’ to the pitch: negative consequences, intended or unintended, and their degree of possibility or probability.

Given vivid ‘stories’ and easily digestible (though wayyyyy too simplified, good-vs-evil) plotlines, the media fall into the lazy habits of turning their analysis and objective reporting into merely play-by-play description, sort of like the old sports-announcers used to deliver over the radio.

Worse, the public is now – and without being warned and probably without realizing it – put in the position where the advocacies and the government itself are functioning as the used-car salesmen who will sell this thing to the ‘rube’ standing out on the lot.

And if some members of the public do realize what has subtly but seriously happened, then they now must assume the stance of being openly and clearly skeptical of claims being pressed upon them, and rightly so – you can’t say that the Framers were all that ‘optimistic’ about ‘government’ … after all, they caged it pretty carefully with their Constitution.

Yet this ‘merchandising and packaging’ and ‘pitching’ approach to public policy profoundly destabilizes the relationship between the Citizenry and the government. Rather than being the ultimate judges of the government, the Citizenry become the ‘marks’, the ‘rubes’, the ‘consumers’, the herd – and this cannot sustain a Constitutional polity. Not hardly.

And the selective skewing of a proposal to make it look like it will have no downside (except – yuck yuck! – to the ‘perps’) puts a necessarily false choice before the public: thus, in the Roberts Dissent, the choice is to either A) allow the police to be freed from the fundamental Constitutional restraint of having actually observed criminal behavior in exercising their official coercive power or B) allow a terrible event to happen.

When actually, the choice is much more complicated – if it is viewed without the selective filters and thus if it is viewed more accurately: Should the precedent of police deployment of their coercive authority – without the justification of observed criminal behavior – be permitted when A) it is at best possible that they might stop some terrible events from happening but B) at the certain cost of significantly weakening a classic Constitutional protection from the arbitrary deployment of the government police authority?

As in a sales pitch strategy, the precise objective of the supporters is to prevent any but ‘positive’ thinking about what they wish to ‘sell’. Thus their plan must be seen only in a best-case light and without negative consequences; the victims must be seen as pure and outrageously wronged; and conversely – and with equally stern strategic necessity – the designated ‘perp’ must be seen only in the most vividly worst-case light.

And – worse – any hesitation or desire to examine any of the foregoing in the pitch must be instantly discredited as ‘insensitive’ or some such. This is simply the adaptation of the used-car sales handbook about how to deal with the family member or family friend who stands there wanting to have the hood opened and to look at some key indicators of the vehicle’s serviceability. (Example: “I suppose we could open the hood, if we really didn’t care whether you had the means to go and get your baby the fresh milk she so deeply needs, folks – since that’s what your brother-in-law is pretty much saying he doesn’t care about ….” That sort of thing.)

You can see how any effort at mature and rational assessment of the vehicle and any deliberation about purchasing it is going to be derailed and indeed snuffed out.

And the same thing is true in matters of grave and large national import, where public opinion is similarly manipulated.

Worse, while a family only buys a used car once in great while, such ‘sales techniques’ have been deployed against the American Citizenry almost continuously for the past several decades.
Which means that a lot of folks have either gotten used to this sort of thing (normalizing the abnormal, you might say) or else now have grown up with this type of thing and assume that it’s just the normal way ‘democratic politics’ works. And may well have lost, or never have learned, how to analyze carefully and maturely deliberate about a proposal which requires them to make some sort of choice or decision.

Which is a hugely dangerous state of civic affairs. If an increasing percentage of the Citizenry can neither analyze nor assess nor deliberate, then they will rely on the more primitive human capacities to choose by ‘feeling’ alone – and sustaining a Constitutional Republic requires a mature and competent Citizenry. Otherwise the liberty of The People will be undermined by the forces of authoritarianism, who may very well justify their actions by saying that since there is no competent People, there is no need for a genuine Constitutional Republic.

In these matters, ‘good intentions’ are not enough. A baaad plan or a baaad way of getting it accepted (of making the sale, as it were) cannot be made ‘good’ simply by the fact that those who ‘sold’ it really meant well and were trying to address a real problem.

The iron rule of selling is to make the sale – everything else can be ‘worked out’ later.
But this cannot be the underlying principle in the conduct of public business and in the formulation of public policy and in the passing of legislation and the making of laws.

The People has every right to expect – and would fail in its duty if it did not expect – that every law, like the projected flight of an airliner, is carefully considered beforehand, and not approved until the concept, the plan, and the execution were considered thoroughly.

The concept, therefore, of ‘expressive law’ – that it’s OK to pass a bad law if it’s going to ‘send a great message’ and that once the law is passed then ‘it’s the courts’ problem’ (and the defendants caught up in it?) … this concept must be expunged from the law schools and from standard-operating procedure on Capitol Hill and in legislatures around the country.

Somehow the Constitution – its spirit and ethos even more than its letter – has become a neglected Party in legislation and (too often, alas) in jurisprudence. I am almost tempted to suggest that like a minor child in a custody dispute between two adults, the Constitution should have a special representative appointed to protect its interests in any official proceedings.

But it goes deeper than that. The Constitutional vision itself is based upon the idea that The People will be largely comprised of mature, serious, sober individuals who have handled responsibility in their lives and are willing and able to take on the added responsibility of preserving a democracy and a Republic.

A culture in which a) ‘responsibility’ and b) the willingness to achieve the competence necessary to discharge a responsibility are considered ‘quaint’ or even ‘oppressive’, or any other of half a hundred other epithets … such a culture is not going to shape individuals competent to be Citizens in the sense that that capital letter requires.

No Citizens, no need for a Constitution and a Republic.

And an increasingly incompetent public, no longer effectively able to be a Citizenry, will require more and more assistance, and be willing to tolerate any amount of governmental authority’s expansion and control over every aspect of life.

You see where things can go.

And why there is a fierce urgency to now.

And why these SO laws must command our concern: they are the products of some hugely and deeply baaad trends in American policy and polity and in the very ability of Americans to exercise ultimate authority over their government and the legislation it churns out.

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