Sunday, October 11, 2009


I’ve just finished reading Wayne A. Logan’s “Knowledge as Power”. He’s a professor at Florida State University who is deeply interested in and knowledgeable about matters sex-offensual.

His book is an excellent review of the state of the situation in regard to the sex-offense laws and what I call the sex-offense ‘mania’. It’s comprehensive, in-depth, and copiously noted. I recommend it strongly to anybody who’d like to get an overall picture and grasp of the situation; I got it from my library, but I’m getting my own copy (under $25) because there’s too much important material.

I’m not going to review it here and as always I don’t have the time to craft an essay. I’ll just give my thoughts on items that struck me as I went along in the book.

He discusses the historical antecedents in this country and elsewhere. The Germans in the 1860s had already instituted Meldewesen, requiring all citizens to register with their local police. You can see here how the Framers’ vision differed from other national approaches: here the American vision has always been that the citizenry (never presumed to be ‘perfect’, ‘pure’ or totally incapable of crime, nor divisible into ‘good’ and ‘evil’ classes) must be free of all but the most basic and essential government control.

This stemmed not only from their dignity as individuals but from the very practical yet breath-taking vision of the Framers that a ‘free society’ is the most fruitful, productive, and open to the creative capacities of its citizens in their individual efforts and when they come together to pool their talents and energies on projects they deem worthwhile.

The German approach (and they weren’t the only ones) stemmed, I would say, from the monarchical assumption that your subjects were always going to be a source of potential trouble, and you should keep an eye on them (and that was certainly true after the many revolutions of 1848 in Europe). Also, you wanted to know where they were when you needed troops or taxes for your many wars and expenditures.

If We assume that the Framers knew something of human nature and the world around them, and if We assume that there was crime of all sorts (including sexual) in the 18th century, then it seems clear that the Framers were more concerned about the dangers of governmental mischief than the occasional crimes of individual citizens. They were willing to run the risk of crime (which is “always with us”, like the Scriptural poor) rather than stifle the society. There was a risk, but life is risky in most respects in this world and any government ‘authorized’ to stamp out risk would have to have the powers of God (although God himself is clearly willing to put up with some tares for the sake of the wheat).

Logan quotes sociologists who claim that through increasing mobility and more opportunities for individual entertainment, We have become “a society of strangers” who are also – predictably and understandably – “fearful of strangers”.

Yes. And it’s natural for humans to have an initial caution about individuals and groups unfamiliar or strange to them. I would – though Logan doesn’t go into it too much – add a few other sources. For one thing, the past few decades of emphasis on the victim’s fearfulness – an unintended (I hope) consequence of a certain strain of feminism that casts ‘the woman’ as living perpetually in anxious fear of assault (by ‘men’). And then, of course, the actual ‘victimology’ movement, where the Victim was – perhaps unintentionally – raised up as a new Model for Americans to identify with, even to define themselves by.

I can’t imagine that this would not and does not have profound (though unintended) consequences upon the very possibility of an American Citizenry capable of performing the tasks envisioned by the Framers.

To engage in and sustain the great American “Experiment”, as the Framers called it, required a Citizenry willing to remain open to life and history, and to tolerate the risks as the ‘cost of doing business’ as a “free People”. Citizens were envisioned as needing to be somewhat resilient – like those who had trekked to the New World and across it into the huge interior of the continent.

And only such a robust and in some ways resilient and mature Citizenry could handle the dangerously powerful horse of the Federal power and the national government, which the Framers were careful to check in so many ways.

That was – and remains – the lasting challenge of being an American, as opposed to being the heir of a more monarchical or authoritarian system of government.

Logan notes the growing technological capacity for increasing government control of the Citizenry through information-technology. I agree, although I again repeat that the primary difference We should grasp thoroughly is the difference between a control-oriented government such as the Germany of the 19th century (and that Nazi bunch) and a liberty-Grounded government such as the Framers envisioned.

He also notes that the SO laws curiously absolve the government of the responsibility to enforce the laws. Instead, it works out in the SO system that the government ‘merely’ provides ‘information’ (that’s already public) and then the public can do what it thinks best. The whole idea of a professional police force (a late 19th century development, and it took a long time to really bring up to speed) is that government’s monopoly on the legitimate exercise of violence through the police power would be exercised justly and fairly by trained law enforcement and criminal-justice personnel, sworn to work within the boundaries set by the Constitution.

The idea was precisely not to have the members of the general public exercising violence – physical, but also non-physical – since to do so would open the floodgates of ancient human primal behaviors, and would regress society to the days of vengeance-feuds and vengeance-justice. And, as a matter of course, would re-ignite the fires of the age-old human propensity to indulge in us-them, we good/they bad thinking. And that would be fatal to the unity and equality of the citizenry, would fracture the American people profoundly, and thus weaken – probably fatally – the entire American Vision and destroy the Experiment. And then, back to authoritarian government and a People no longer ‘free’ We would all go, and Our descendants with Us. And the entire American Experiment would end, and History and Humanity the worse for it.

When Los Angeles considered a registry in the very early 1930s, mostly because ‘gangsters’ from back East were flooding into the city, it was said in support of the idea that “only criminals would object”.

But there was much “principled” objection by prominent local citizens who did not like – or consider reliable – so great and alien an expansion of the police power of the government. “Not only is the measure vicious, but it places too much power in the hands of the police and furthermore “It will create a tremendous amount of suffering for ex-convicts who are trying to rehabilitate themselves, especially [the law was going to be retroactive] those who are in good positions of trust”. So said a local attorney at the head of a delegation of citizens.

I notice that in that era an “ex-convict” was not considered a “criminal” as if it were in his (or her) nature, like some biblical mark of Cain. And there was an acute awareness that governments – when push comes to shove – are not often sufficiently competent to wisely use the power given over to them. (And can you say ‘Iraq War’?)

He went on, in that long ago morning of 1931: “It appears to be a harmless law, but we have too many harmless laws that appeared to be harmless until adopted, when they became dangerous weapons in the hands of certain interests”. To which I can only reply that History is certainly not dead, and that We are repeating it, having forgotten it or dismissed it as ‘old stuff’.

And of course, in that year of 1931, the Soviets were busily purifying the Russian people, Mussolini had erected his glittering plaster imitation of the Roman Empire, and almost ready to make his big move, the little guy with the moustache was in Germany with big plans for the government police power indeed. And in ‘backward’ Japan, there were already Thought Police who were ensuring that every citizen was not only going to keep dissenting thoughts to himself or herself, but was going to get rid of those thoughts and start having the approved ones – or else.

In the words of that attorney We can still hear the thoughts of the Framers expressed.

In 1949, in a Los Angeles still working on sex-offender registration laws, one reporter wrote about the “stigmatizing effects of registration”: “It was the old idea of the brand all over again, though it took the form of this blacklist file instead of the old Scarlet Letter of New England. There was little thought to rehabilitating these people … The emphasis was merely on having them branded and filed, Gestapo-style, so they could be hounded and cracked down upon when the public mood demanded it”.

This reporter in 1949 notices a benny for government that is not often remarked upon today: government can ‘appear’ to be busy and effective simply by setting up the registry and – so insidiously – setting up the registered. Surely nowadays, it seems clear to me, a government authority that has compiled such a record as it has in the economy and the war-making departments shouldn’t really be looking to expand into new areas; it has enough areas already that it still has to get a handle on.

But of course – human beings and governments being what they are – this is precisely the type of situation where ‘registries’ and ‘monsters’ are so attractive to a government looking to divert attention from its own failures and frak-ups.

In 1947 State Director of Corrections in California wrote to the Governor (Earl Warren) that “It has never been the practice in America to require citizens to register with the police, except while actually serving a sentence under the Probation and Parole Laws”. He then went on to make a second point: “Before embarking upon this new practice with a particularly offensive group of individuals, we should not overlook the fact that we may be opening the door to similar practices for other groups as time goes on”.

That, after all, is what happened to the Germans, as Martin Niemoller famously said after the war: They came for the communists and I did not speak up; they came for the trade unionists and I did not speak up; they came for the Jews and I did not speak up; then they came for me and there was nobody left to speak up.

In 1947, the public emotional pressure about Communists under every rock and behind every tree lent steam to the pressure to go after sex-offenders. Apparently the fresh Nazi examples of what a suitably determined and enterprising government might ‘accomplish’ with registries and the manipulation of public opinion had not been lost on certain elements. It was the year of the Nuremberg Trials.

In November of 1953, the city solicitor of Canton, Ohio, reported his dissatisfaction with the whole registration concept: “It is impossible to administer and it has only been used in isolated cases to prevent an undesirable individual coming into the community”. So back to the walled and closed towns of Medieval Europe … fearful, suspicious, and yet also capable of enjoying the thrill of beating or burning any ‘strange other’ who might fall into the public clutches.

This attorney seemed to grasp, I think, that inflicting violence of any sort so perversely creates a sense of unity, a sense of purpose and meaning, and provides a release for the pressures of those dark and primitive emotions that lurk in all of human beings, singly and in groups. (Which is a social-psychology element of the sex-offense mania that has not been sufficiently examined.)

It was in 1991, in the sex-offender law entitled the Jacob Wetterling Act (named, We recall, in memory of a child who was seized by a masked man brandishing a gun, but for purposes that have never been determined, and nobody has ever been charged) the clause is inserted that absolves police “acting in good faith” from any liability – civil or criminal – when apprehending sex-offenders.

And in the current incarnation of these laws, and how they evolved, the question was raised in 1994: why ‘register’ them but not ‘share’ the information with the public, which had a Right to Know. The public being, in the words of one female Representative, “the very citizens who are at risk”? So she asked a House Committee considering adding ‘notification’ provisions to a new ‘registration’ law.

Again I note this disturbing tendency to cast the American Citizen as primarily defined as “being at risk”. As if the most defining characteristic of the nation and the Citizenry is “being at risk”. And, of course, that “risk” primarily being from ‘sex’, and from the type of incorrigible, monstrous, ‘stranger’ who might be here or there or everywhere all at once.

I also note – as it will come up again later here – that she justifies her concern by asserting that “the rates of recidivism are astronomical”. And they are now provably not. And yet these things continue and expand – and how many legislators have changed their position in light of the new discoveries? How many even seem to care?

In a stunning coincidence, however, on the very day that the House committee rejected the notification proposal, Megan Kanka was killed in New Jersey.

In short order, a Representative asserted that “The conferees just do not get it” (using that familiar old epithet of the radical feminism of the Seventies). It was meaningless, asserted the Rep, to provide information only to the police; the families should have had it as well. And here We see the push not only to open the door of the carefully-bounded cage of the official government police power but also to distribute its privileges to the public in general, especially to a public already whipped up over a truly awful – but extremely rare – kind of crime. This is a verrry regressive and anti-Constitutional type of government ‘sharing’ and I think it violates the foundational ‘social compact’ and the Framers’ vision of the nation.

Logan notes the “staggering popularity” of official sex-offender websites (the Feds’ site got a thousand hits a second when it first went up). But it can’t be that all these people are the ideal site visitors, soberly looking up information for purposes of family and neighborhood ‘protection’.

I’m going to bet that this has become a new sport or a new diversion, although some of that sport may well tap into the darker and more primitive capacities latent in any public (those monarchs of Old Europe weren’t just worried about high-minded revolutions; they were concerned about “the mobs” and vengeful gaggles of bloody-minded peasants taking some dark and brutish pleasures as a break from the daily grind).

And Logan raises the matter of wildly exaggerated statistics provided by advocacies for legislative and public consumption far too often. In a 1983 TV piece about the 1981 disappearance of Adam Walsh (disappeared from a mall lot, his remains discovered, but never a clue as to who did it or why): 50 thousand children in the US were abducted each year, it said.

The boy’s father testified before Congress that “more than 1.5 million children are reported missing each year” and “we don’t have clues to what happened to more than 50 thousand of them”.

Which should have given any reasonable person pause. What is the age range of these children? Does it include teens who haven’t come home yet and their parents call the police and the kids later show up? (Which is what the 50-thousand comment seems to imply.) The Congress did not apparently think to ask. It did erect a National Center for Missing and Exploited Children (and what does “exploited” mean?) forthwith and appointed Mr. Walsh, a former hotel-worker, as the official head of it.

That abduction-and-murder “panic” soon fizzled out as other folks crunched the numbers and suspected exaggeration; clearly you can’t just release figures and expect the public to be completely helpless in the matter of doing the math. In 1985 the ‘Denver Post’ did an expose for which it won a Pulitzer: there were 330 thousand, not 1.5 million, children and most of them were runaways (thus not ‘children’ but rather youths old enough to walk and run and – for whatever reason – want to). And fewer than one thousand were the victims of homicide. And most of those were killed by relatives and acquaintances.

A 1990 Justice Department study reported that in 1988 there were only a couple of hundred of “stereotypical kidnappings” and that in the 11 years 1976-1987 somewhere between 40 and 140 were “stranger-abduction homicides”. Then Logan continues: “Missing children fell into five categories with at least four of the categories containing children who were ‘not literally missing’. But rather whose location was known – with parents in disputed divorce cases or relatives in troubled family-cases, I imagine.

But the facts don’t seem to matter – which is a clear indicator of a ‘mania’, as I’ve been saying in previous Posts. Indeed, the key motivator seems to be what one commentator aptly calls “advocacy through story-telling”.

This strikes me as connected to the rise of ‘story-shows’ in the 1980s, TV shows where persons come on, share a story of sadness or horror, and the live audience is expected to immediately credit the ‘story’ and sympathize totally with the person telling it. Which is much what happens in a certain type of ‘supportive’ group-therapy session where a participant tells a version of his/her experience and the other participants listen respectfully, and then ‘support’ the person. An alternative type of such a session is more confrontative, or at least inquiring, where participants and the group-leader probe the ‘story’ for the purposes of the teller being able to see more clearly the dynamics underlying the narrated experience.

The ‘story’ approach makes for gripping TV, for certain types of viewers; whether it’s the best primary mode for conducting sober and careful inquiry by legislators … is another question altogether.

Sex offenses had been declining by the early 1990s (for example in New Jersey, by 1991, years before Megan’s Law), before any of the current sex-offense mania laws were put in place. And Logan notes that “the overwhelming majority of child sex offenses are committed by someone known by the victim”.

This has always prompted me to ask why it is that the sex-offense concern is not aimed more accurately at those who know the children. The possible answers are not at all comforting. From a political point of view, most of those who “know” the children are family members, relatives, and – not to put too fine a point on it – a rather large group of voters.

So too then, it follows that if you were going to pursue a gambit of demonizing a ‘monstrous other’ group, you would want to mobilize as large a mix of the public as possible against as small (and politically helpless) a group as you can set up. But you would not want to mobilize as large a mix of the public against a large (and still politically potent) group, which is what the actual relatives-and--acqaintances group would wind up to be. That way would create far too much push-back from those on the receiving end of the campaign of demonization. And such resistance would most likely break the ‘spell’ that fuels the whole mania to begin with.

And so further, a successful mania requires a ‘stranger’, an ‘other’, preferably monstrous, who – for so much of human history – has filled the bill as the useful ‘target’ for such manias. Even if mostly imaginary, such an ‘element’ seems to be a necessary element in the mania equation. One recalls the ‘monsterizing’ of the ‘brutish’ Poles and ‘sub-human’ Slavs (Russians) by a Nazi regime that wanted to make its depredations seem ‘reasonable’ and ‘logical’ or at least ‘justified’ while at the same time flattering the German people for their ‘purity’ and ‘culture’.

Between 1991 and 1996 only 7%of sexual abuse of children (0-17) was perpetrated by strangers; family members committed 34% and acquaintances 56%. In the 18-24 age group, only 24% of sexual assaults were committed by strangers. And of the 260,000 children kidnapped each year, only a hundred or so are kidnapped by strangers.

And yet the public ‘face’ of the sex-offense mania is the ‘monster stranger sex offender’. On the basis of which huge and dangerously intrusive expansions of the government police power are effected.

Logan notes further that in regard to Jacob Wetterling (upon whom be peace) “we do not know … whether [he] was the victim of sexual abuse or whether his abductor(s) had a history of sexual offending, or lived anywhere nearby”.

And he notes the fact that “although disputed by the Kanka family, media sources reported that a number of people in the neighborhood (perhaps even Maureen Kanka herself) were aware that a convicted sex-offender lived at Timmendaquas’s address”.

If I recall the reports correctly, that man lived with two other adult males, themselves – I think – sex offenders. I would imagine that a family neighborhood would have noticed the odd make-up of the residents in that house. Surely the neighbors would have no reason to lie to reporters.

May peace be upon Megan Kanka. But this question is of more than mere historical importance.

Because on the basis of the narrative presented to the public and to the New Jersey Legislature and the Congress and the President of the era (Clinton), the Megan’s Law was passed in New Jersey and it – and the New Jersey Supreme Court affirmation of it in the Poritz case the next year – became the model not only for other States’ sex-offense laws but also for the entire legislative and judicial approach, finessing the Constitution in order to appease the outrage over what was said to be the true story of how it all happened.

And as Logan notes later on, it is the consequent Parents for Megan’s Law group that has a contract with the State of New York to keep tabs on sex-offenders, and it is that same group that recently got a Senator and a Representative from New York to sponsor a Congressional bill granting the group a million a year and the authority to access on its own the NCIC in order to hunt for sex-offenders. And this represents a truly dangerous trend: the government funding and authorizing a non-official entity to perform with the authority of the government certain tasks reserved to the trained (and Constitutionally bound) police forces.

Of course, this opens the door for any volunteer group to get the same funding and authority, and that then opens the door for some Blackwater-type private commercial enterprise to do so. And perhaps to set up its own ‘police-designee’ type force to go out onto the streets. Please don’t tell me that’s totally implausible – twenty years ago I would have imagined it impossible that the country could go where it has gone and is continuing to go in the matter of this sex-offense mania.*

In that New Jersey Poritz case, as I noted in my Posts on the subject, the Chief Justice of the Court was publicly known as a supporter of more intrusive laws. Logan adds more: that at the time, the Speaker of the New Jersey Assembly was running for the US Senate and that the prosecutors had accepted a plea-bargain from the ominously troubled Timmendaquas on his last conviction so that he evaded a much longer sentence that would have prevented his being paroled when he was.

In the event, the Bill was signed into law just three months after Megan’s death, evading any committee debate and deliberation, and thereby forcing any doubts by legislators onto the open floor of the Assembly (as Logan shrewdly observes) – where, predictably, there were few objections voiced.

Such a novel and complex and Constitutionally-fraught Law, passed so quickly … and on the basis of a narrative that may well be inaccurate in its most vitally relevant elements. This is not a good thing, and won’t end well for anybody involved, which, in the long run, is all of Us.

But as one State Representative (Washington) observed: “People don’t necessarily want statistical analysis … they want security for their children, real or imagined”. Which may well be true, but it doesn’t speak well for the “people”. And it surely doesn’t justify a legislative body simply truckling to the emotions of the moment, and in the face of clear indications that the fear is misplaced and the ‘solution’ will provide no security at all. This says a great deal about the health of Americans’ and American legislators’ capacity for sustaining serious democratic government, and what it says isn’t good at all.

To seek ‘safety’ from what you believe is a threat even if the ‘safety’ is probably an illusion – is a child’s gambit, not an adult’s. We are supposed to be raising children, not imitating them.

Logan limns the fallaciously assumed equation: more public information leads to more truth which leads to more safety. This is a nice mental construct but it cannot be translated into reality. There is little “information” to be gleaned from the mere fact of conviction; all the bits of information may not be accurate and it takes careful assessment to reach the ‘truth’ about any individual’s risk of reoffending as opposed to conducting a decent civic and societal life; and safety cannot rationally be reached by these laws when most offenses are by first-time offenders (thus not registered) who in any case are probably known to the victim.

Logan reveals just what advice the public is given once it is ‘informed’: install exterior lighting at home, warn house-hold members that a sex-offender lives nearby, and don’t let strangers into the house.

This is called – in an ominous paramilitary phrase – “target hardening”. But again, what use is any of this when the vast majority of sex offenses are not committed by strangers but by family members, relatives and acquaintances? You might as well sweep out the old fallout shelter and rename it the stranger-sex-offender shelter.

And he notes that 60% of persons in one poll who claimed that they were “very familiar” with the sex-offender online registry for their area did not know that a registered offender lived nearby.

He also raises the very interesting fact that in American correctional thinking, in these days of reduced budgets, there is now an approach that calls for reducing the old-fashioned “brick and mortar” imprisonment for a “hidden custody” that consists of having the convict tagged so that the public can keep an eye on him/her. This saves money.

That this is a vision which also sets in motion the ‘perfect storm’ of elements that engulfs the citizenries of a police-state … is probably not something the corrections folk are paid to think about, or educated to be aware of. But that doesn’t make this lethal threat to democracy go away. But since legislatures and too-many courts aren’t apparently doing too much gate-keeping when it comes to ‘reforms’ and ‘fresh approaches’ that are pushed their way by determined and vocal and well-intentioned advocacies, then it may well turn out that nobody in a position of public authority it going to say Hey, wait a minute. And from the track-record of these sex-offense laws, just about any ‘emergency’ will justify the abandonment of careful legislative deliberation and acute judicial review.

Logan expresses a justifiable disappointment in the (non-)performance of most courts when they come to judge these laws.

He also raises the acute point that in the matter of pooh-poohing the Ex Post Facto threat these laws pose, the courts are gravely endangering Constitutional integrity. For while the protections contained within the Bill of Rights “typically seek to ensure individual rights, such as the right against self-incrimination (Fifth Amendment), the Ex Post Facto Clause is a structural constraint found in Article 1 of the Constitution”.

A “structural constraint”. An utterly essential structural element, a carrying-wall that cannot be tampered-with without endangering the fundamental competence and integrity of the entire structure. Something that should not and cannot be tampered with. Not a decorative wall that you can pierce or wholly remove if it doesn’t suit your taste and your vision of how the place should look.

The Framers put it in there because they HAD to . There was no other way to prevent the government power from passing any laws, at any time, against any person(s), whenever it (whether King or Parliament or Congress) damned well pleased, for any purpose it damned well pleased. To prevent a government from ever telling its citizens or any fraction of its citizens: Reasons? – we don’ need no stinking reasons!

And more especially, to prevent the government from hastily and rashly passing into law what John Marshall, Chief Justice, described in 1810 as “the violent acts which might grow out of the feelings of the moment”. So, yes, I am saying here that the passage of these mania-laws actually constitute a more real and profound and dangerous form of violence against Us all than the exaggerated cases of violence they purportedly are supposed to prevent.

But of course, Marshall does not here contemplate what came to pass in the world of the 20th century – a government power tempted by vastly enhanced technologies. Which in the 1990s here led to a government that willingly and deliberately stokes such violent feelings, on the basis of which it presumes a justifiable ‘emergency’ that permits it to pass such noxious and toxic laws.

I don’t imagine that many of the Founding generation imagined seriously that a time might come when the American government power would actively seek to incite emotionalism and precisely seek to avoid rationality, at whatever cost to the Constitution and to such citizens as needed to be sacrificed to a mania, for political and control purposes dressed up in the sheep’s clothing of ‘responsiveness’ to ‘outrage’.

The first thing the Founding generation would do in the face of ‘outrage’ or ‘fear’ – or any super-heated emotion – would be to take a deep breath and count to ten. Which is precisely what is not being done today.

Indeed, some recent contemporary social and political movements insist – neatly – that ‘rationality’, thinking, and the reason-based ability that is called “logocentrism” are actually illegitimate because they slow down the process of meeting the ‘emergency’ of the ‘oppressions’ and ‘threats’ that they see all around them. Yet thinking – using the marvelous and unique prefrontal cortex of the human brain – is precisely what has to be done, by Citizens and legislators alike, when it comes to formulating workable, rational, and reasonable national policy. Otherwise We might as well let kids and chimpanzees drive motor vehicles.

As Justices Frankfurter and Cardozo, both from families not far removed in time from the agitated nations of late 19th-century Europe, realized – and Cardozo said – “the safeguards of liberty have frequently been forged in controversies involving not very nice people”.

This is, I think, huge, especially in regard to Our modern American scene. There is this sense, reinforced and even demanded by the nice-victim/evil-perp script, that the status of Citizen is not the essential identity of each American. Rather (an intended consequence of Identity Politics) Americans are simply members of this or that more ‘basic’ Identity who just happen to occupy the same piece of land owned by the same government.

And that there are also the ‘good’ and the ‘pure’ folks and they are nice – and they are forever ‘victims’, and then there are the ‘evil’ and the ‘impure’ and the not-nice folks – and they are forever ‘perps’. And only the first kind really deserve the protections of the Constitution. And the other kind deserve whatever they get, especially once the protections of the Constitution are removed. This is the ‘philosophy’ of TV and movie scripts (with all due respect to the entertainment industry) and it will wreck Us as a nation and a polity and a commonweal and a society.

But just as a society’s character is best revealed in how it treats its poor, so a government’s character is revealed in how it treats its criminals and its ‘others’. And the Framers wanted to make damned sure that every American would receive the protections of the Constitution, because once that watertight wall was punctured, even by the smallest leak, then the huge pressure of the primitive sea of humans’ darker side and the darker side of the governments they made would seep in, widening the crack until there was a flood coming in to sink the whole ship and everybody aboard.

The Framers knew that from their experience of monarchies and mobs, as did – a century and more later – the jurists from immigrant stock like Frankfurter and Cardozo.

Many now, however, do not seem to grasp that – and gladly and deliberately invite the primitivity of government even as the government seeks to stoke the fires of primal emotion in the citizenry. This is a dance of Constitutional death.

And those who advocate for it, especially by claiming that it is “costless” need to consider their position far more carefully. The costs of this sex-offense mania and its enabling matrix of laws are truly huge and profound and – let Us not be deceived – beyond the means of any Constitutional Republic to pay.

The dark ways and the dark spirits rejected by the Framers in the bright morning of the Founding are being invited back in, even as the sun here begins its decline. This cannot end well.

The erosion of a genuine individual sense of meaning and purpose and safety (‘God’ and His Providence used to provide it) and of any sense of a common social meaning and any working concept of a genuine human maturity, combined with the erosion of any genuine government ability to deal with the declining status of the nation in the world, and the desperate need of the Branches to hide that fact and keep the lid on popular discontent and fear for the future, have all combined to reach the ‘mania solution’: find some monstrous ‘threat’ and some ‘monster’ – even if you have to create them through gross inaccuracy, even untruth – and then distract everybody with the ‘war’ against the monsters.

Good blessed grief. At least the command staff of theTitanic were trying to do the right thing.

I’ll conclude by saying that Logan is more or less pessimistic about this matrix of laws being rolled back, certainly not in their entirety.

Well, he’s a competent scholar and probably directly knowledgeable about the ways of government in ways that I certainly am not. He does leave some hope that the economic crisis alone might provide the best hope for these laws being blunted in their effects; States, he notes, are pushing back against the Adam Walsh Act because of the many costs and the burdens imposed upon them.

For my part, I am hoping that these things can be eliminated on the basis of the danger they truly represent to the Constitutional ethos and to the moral and political integrity of the Citizenry.

But he makes a telling point: except for the occasional acute and clear Dissent (such as Justice Stein’s in Poritz) and an occasional off-the-record admission by a legislator, there is little “principled” objection to these laws (or to the spirit or spirits driving them).**

And I have to admit that he raises a telling point and that – so far – he’s right.

And that fact – that so few have raised objections on the basis of principle (even Constitutional principle) – is to my mind the most frightening aspect of all in this still-grasping mania.

What is becoming of Us?


*See my Post “S. 1146: The Camel’s Nose Under the Tent”, June 23rd, on this site.

**A little philosophical aside here. And no, it’s not irrelevant and I know your time is valuable. But as always, I think it’s verrrry important for the SO community – or any group – to understand the deeper and wider implications of what they are involved in. It will yield more understanding – and that can only improve their thoughts and their positions.

That’s why I strongly recommend Logan’s book in the first place: the history, the operating dynamics, the consequences, the ideas underlying the SO laws and what I call the ‘mania’ – all of these can only enhance everybody’s ability to comprehend just what has happened, what is going on, where it may be going, and what is at stake.

So to the philosophy.

Since the Sixties the philosophy of ‘deconstruction’ has been embraced – without too much wide public discussion – as the ‘philosophy’ of the Beltway and the ‘elites’. And this includes the Members of the various Branches of the government, as well as the usual gaggle of academics and think-tankers and so forth.

‘Deconstruction’ first saw the light as a literary theory, that you would use when trying to understand a piece of literature. It holds that when you get right down to it, there is no single or primary or ‘key’ meaning to any ‘text’: it’s much more a matter of what the reader ‘sees’ or ‘gets out of’ the text.

Tied in with that is the idea that the author him/herself is no doubt in the grip of deeper preconceptions about ‘reality’ and so there is a whole underworld of preconceptions and assumptions that the author makes, that have shaped the author’s piece and even the author him/herself.

Which is, curiously, similar to Freud’s idea that there is an ‘unconscious’ – with a lot of sex in it – that does more to drive people than anybody thinks or probably wants to think about.

You are most likely yourself under the impression that Freud pretty much said that humans are mostly dark, sex-driven creatures, that they don’t know that, and that they can mostly be ‘understood’ just by seeing how ‘sex’ drives them. Which is not at all what Freud himself thought or wrote, but what his later commentators took away as the ‘simple’ and ‘basic’ message of Freud. Baaaaad literary and intellectual practice, this simplistic distilling of a partial grasp of a complex thinker’s thoughts.

You can see what would happen to readers and students. They are now told that it’s OK to think of, say, Melville’s “Moby Dick” as a story ‘really’ about sex and so ‘really’ the whale is blah-blah and the ship is blah-blah and Ahab is ‘really’ just a sex-obsessed symbol of (pick one) the West, the ‘male’, or add-your-own noun here.

So now, imagine what happens when this starts to get applied in national political thinking. There is no ‘real’ meaning to a ‘text’ (the laws, the Constitution even) and folks can sort of make what they want of it.

And if these or those folks, this or that group, gets enough political power then those folks or that group can pretty much say that a law or the Constitution means whatever they happen to think it means and want it to mean. (So then, imagine what this approach does then to a philosophy of Law or to any understanding of the Constitution.)

And of course, legislators eager to please groups that put pressure on them (the promise of votes, the threat of being labeled as ‘insensitive’ or ‘hostile’ or ‘oppressive’ or – what the hey? – of being labeled as just not ‘with it’ and ‘they just don’t get it’. Legislators, being human, are hugely responsive to all those influences).

In 1971 along comes the political philosopher John Rawls and says that really, Liberalism should be a purely political thing with no philosophical underpinnings. He is instantly raised up as a brilliant new thinker, given all sorts of prestigious awards and positions.

And, shrewdly but perhaps also like Pollyanna in his good intentions, he insists that ‘elites’ – which he defines as those who ‘get’ what he is saying – not only can but absolutely must do ‘whatever it takes’ to change the country and impose this new ‘brilliant’ wisdom. All of the Branches realize that they like a) being ‘elites’ and b) are now not only empowered but actually obligated to ‘go for it’.

Now you can start to see what happens to the philosophy of law and also to the whole process of making laws: you quietly decide you as a legislator ‘know’, and you pass laws that you think are ‘necessary’ (and also please certain groups that are influencing or pressuring you). And, by the by, since there is no ‘basic’ meaning to the Constitution – especially since the ‘old’ generations that didn’t have the benefit of your brilliant new ‘wisdom’ aren’t really worth paying attention to - then you as an 'elite' are actually doing a reely reely 'good' thing and anyway it's not such a big thing anyway. And after all, you as a mover-and-shaker might ask yourself, what's the 'real' importance of something as abstract as 'philosophy' (or 'thinking', for that matter).

And after 30 years of what’s been going on in the law schools and the ‘legal community’, then an awful lot of judges and lawyers (especially if hired by the government) think this way too.

This, I think, is what’s been going in for the past few decades as more and more disturbing unconstitutional and even anti-constitutional stuff has been coming out of the Beltway and even the Supreme Court, as well as from the State legislatures and courts.

And this is one of the deep underground streams feeding this whole sex-offense mania, where legislatures and courts – including the Congress and the Supreme Court – seem to have made and are still making the most gravely dangerous laws, and are actually even engaging in the tactics of the Nazi Goebbels: it’s ‘OK’, you see, because they have this brilliant ‘wisdom’ that ordinary folks (i.e. the Citizens and The People) don’t have and maybe never will or can have.

This is absolutely fatal to the American Founding vision and to any hope for the continued existence of a Constitutional Republic (except in appearances and pious references to the Glorious Past).

This is what’s going on in the country, and the sex-offense mania and its laws are part of that – although a particularly obvious and dangerous development of it.

So this, I think, is what underlies Logan’s acute and astute observation that with very few exceptions there has been no “principled” objection to these SO laws: there isn’t any because, on top of all the usual reasons why political-types don’t like to get nailed down when they have to make political trade-offs, there is a core belief among the Branches and the ‘elites’ that no “principles” actually exist anywhere anyway.

So, then, what happens to the “principle” that – say – “all men are created equal and they are endowed by their Creator with certain inalienable rights”? Nope, just an undigested bit of beef that happened to stick in the craw of that ‘old’ generation, who maybe were rich white males and therefore ‘oppressive’ anyway so they don’t deserve to be taken into consideration.

Or what happens to the Constitution itself – since it is only a ‘text’ that anybody can play with according to their desires and that is suspect anyway because it was made by a ‘suspect’ generation that ‘just didn’t get it’ … ?

You see what can happen. And I am not thereby saying that there are a whole lotta folks in positions of authority who intend to create such a toxic and fatal mess; but even if the consequences are ‘unintended’, they’re still fatal to a democratic politics and to a Constitutional Republic.

And that’s why I keep coming back to the assertion that the SO matter is much more than what it seems. It exists on a point in an advancing wave of anti-Constitutional developments that have to be stopped or they will inexorably sweep the entire American ethos and the entire American vision away.

Logan doesn’t go into the philosophy too much – and that’s OK; his areas of expertise are very well covered in his book. But I hope that this material gives you all a deeper insight into just what’s going on and just what’s at stake here.

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