MARTHA NUSSBAUM’S VISIONS

Well, here’s the Post on the SO-relevant aspects of Martha Nussbaum’s vision of American Constitutional principles.

The document I’m discussing is here. It is a Fall 2007 ‘Harvard Law Review’ article that runs to 94 pages. She covers a great deal of ground and on this site I’m only going into the SO-relevant aspects; I’ll be putting up a Post on other aspects of her thought on my other site in a few days.
The article is long but it’s not boring.

The reason I looked at it is that I think we should all be aware of how the elite thinkers are talking to each other. And a major article in a prestigious law review is a good place to find out just what they’re telling each other.

And that ‘they’ includes not just other law professors but also judges of all ranks, attorneys (prosecutors and government attorneys especially), and any law student who hopes to take advantage of the prevailing waves to surf to success. Plus legislators and legislative aides who are sent position papers full of ‘serious’ and ‘cutting edge’ thinking.

Because this Sex Offense Mania, as I’ve said before, is not simply some momentary aberration occasioned by a temporary flight of national insanity; it is an instance of a theory of law and Constitutional rights that has been put together as the blueprint for a massive and profound shift (to use a nice word for it) in the most vital elements of the Constitutional ethos.

I am not talking ‘conspiracy’ here, as if it were some short-term tactical gambit to gain advantage. Or as if there were just a few folks rather purposefully plotting the legal derangements.

Rather, there has been a comprehensive effort to effect a strategic shift at the deepest, almost tectonic-plate level, of the entire American vision. With the result that large swaths of the judiciary, as well as legislators, commentators, and – for God knows how long – law students have been acting on the assumption (I’d say under the illusion) that they are implementing the new Great and Good Thing, the latest in cutting-edge Constitutional theory, but which Great and Good Thing is also perfectly compatible with American Constitutional thought and praxis. And I don’t see it as being fundamentally compatible at all.

They don’t talk about it like this – that would be, and from the beginning would have been, wayyyy too much to reveal to the citizenry. Instead this change has been spun as just some ‘tweaking’, some ‘reform’, some ‘victories’ for this or that smallish oppressed group. (And I am no fan of oppression.)

But Nussbaum here reveals just how complex and complete a vision underlies all of this.

And the vision leads to – indeed requires – much of what we may have imagined were some sort of hugely unfortunate temporary aberrations in law and jurisprudence as well as in legislation.
As in previous Posts where the link is to a PDF in the Adobe format, there are two sets of page numbers: the page numbers assigned by the Adobe browser, and the page numbers of the original document. In this Post, the numbers will look like this: 10-13. The first number is the page number assigned by the Adobe browser; the second number is the page number of the original document.

Her vision starts with the assumption – which she took over from sources as far back as Aristotle and the Stoics – that the unique capabilities of humans are the source of their dignity. (This doesn’t go as far as, say, Christianity’s assertion that God’s creation of the soul is the source of human dignity, but she’s trying to achieve a philosophical rather than a religious grounding for human dignity here.)

Therefore, logically, it is a primary element of human flourishing and therefore an essential goal of human development that humans achieve a working competence in these capabilities.

So far so good.

But Nussbaum is trying to put a solid theoretical grounding under ‘liberal’ social policy here so she’s going to give it a particular (though unstated) twist. Whereas you could easily proceed to the assertion that individuals must take such achievement as their primary personal and societal purpose and objective, Nussbaum – acting under the currently popular victimist thinking (where you never ‘blame the victim’ or suggest that ‘personal responsibility’ is important) and structuralist thinking (where individuals are mostly powerless against large and deep and ‘traditional’ assumptions woven into the ‘structure’ of society) – claims that it is the government’s responsibility to make sure that these vital human capabilities are given free play.
Once you’ve started down that road, the scope for government activity – including regulatory and legislative and judicial pressure and ‘intervention’ – is hugely expanded.

Take a look at her list of those core capabilities (see Note 15 at the bottom of page 12-15, continued at the bottom of page 12-16: 1) being able to live a full life-span and not dying prematurely or having your life circumstances so reduced that life is not worth living; 2) being able to enjoy bodily health, including reproductive health and to be adequately nourished and sheltered; 3) being able to enjoy bodily integrity, which includes freedom of movement and mobility, not having your body subject to violent assault including sexual assault and domestic violence, and having choice in sexual satisfaction and choice in matters of reproduction; 4) being able to use your senses to imagine, think and reason – and to do these things in a “truly human way” (as she defines that) by having an adequate education and by being able to both have pleasurable experiences and avoid nonbeneficial pain; 5) being able to love and have emotional attachments without those relationships being blighted by fear and anxiety; 6) being able to deploy your practical reason to come to your own determination of what constitutes the good in life and for yourself and to be able to plan your life; 7) being able to have freedom of association and of expression and being able to have the social bases for self-respect and non-humiliation, which includes not being discriminated against on the basis of race, sex, sexual orientation, ethnicity, caste, religion and national origin; 8) being able to live in concerned communion with nature and other species; 9) being able to play, laugh, and enjoy recreational activities; 10) being able to effectively participate in the political activities that shape one’s environment and being able to personally and individually own property securely so that you have a material basis to conduct all the activities that you have decided are good for your life.

As you can see, these are all worthwhile goals as they are set down. Vital goals.

But it should be clear that once you have invited - or demanded - government's presence into this extensive and deep agenda, you have created a huge change (I'd say 'imbalance' as well) in the dynamics of government.

But she goes further.

She claims that these must be enshrined in American official thought and praxis as ‘rights’ – as in Constitutional rights.

Now things get dicey, as far as I can see.

Because if you are going to have a government exercising its power to ensure – and enforce – these for all individuals, you aren’t going to have a limited government at all. To use a trope I’ve used before in my Posts, you’ve put out a blueprint for a complex and huge project that would require the power formerly ascribed to God, and THAT is precisely NOT what the Framers wanted in a government.

This is NOT to say that the Framers intended that the government power should ‘oppress’anybody.

And I doubt many of the Framers – if any at all – would have been unfamiliar with the desirability of these goals of Nussbaum's.

Rather, they were familiar with the huge discrepancy between the ideal human development and such development as humans manage to achieve in this Vale of Tears, and no doubt they would have agreed with the Roman poet Virgil that such a gap between human ideals and human actualities constitutes the lacrimae rerum – the ‘sadness of things’ in this human existence.

BUT they would also have realized that no earthly government could ever be trusted with the wisdom to use the type of power that would be necessary to achieve all of these goals, or even work vigorously toward them.

Thus a limited government was – given the long and sad record of governments in human history – the best that could be achieved.

But this is not to say that they were happy with that.

Or that they were willing to let it go at that.

They would have expected that the American people, as individuals and as a society that developed a culture and an ethos, would take upon themselves – and rightly so – the responsibility for working toward the achievement of these ideals in their own personal lives and among themselves (in his profound Second Inaugural Address, Lincoln used the marvelous phrase “to achieve a just and a lasting peace among ourselves, and with all nations”).

But that’s not where modern ‘liberals’ – and Nussbaum is aiming to be one of their chief theorists – want to go. They want the power of the government to deploy all its awesome force to make sure that all this happens. And that force includes regulatory authority, legislative authority, and – especially of concern – the sovereign police power and the authority of the criminal law.

You can quickly see where Number 2 of her capabilities list heads toward the Constitutionally dangerous deformities of Domestic Violence law and toward the deformities of the sex-offense law regime.

What becomes evident as well here is that if you assume that these are Constitutional ‘rights’, then violations are not ‘mere’ crimes, but rather rise to the level of the most serious of Federal concerns: the deprivation of Constitutional rights. And once you’ve granted her assumptions that a) these are Constitutional rights and that therefore b) government must do everything possible not only to enforce them but to do it utterly and immediately … then you are into deep and dark waters indeed.

But it gets worse.

In her envisioning, it is not sufficient simply to be granted a ‘right’. Because if you are so positioned through law or tradition that you don’t really have a chance to exercise that right, then for all practical purposes you don’t have the right.

So, for example, blacks (Negroes, as the term then was) formally and procedurally had the right to vote in the Jim Crow South, but the weight of local law, custom, and culture was such that they could rarely exercise that right. Therefore the Federal government was bound to change the circumstances of the Negro in the States of the South such that s/he would indeed have an actual ability to exercise the right to vote. And if that meant the Federal government changing what had to be changed in Southern law, custom, tradition, and culture – well then, the Federal government had to do that.

Well and good. The right to vote is a key right and the Jim Crow South had effectively (de facto - ‘in fact’ – was the term at the time) taken that right away.

But of course it was a huge and wrenching experience for the South as a society and a culture.

And it got the government into a baaaad habit of thinking that it could just reach down and start changing culture and society and tradition anywhere, anytime.

Which is precisely what happened when in the early 1970s other groups claimed to be equally if not more deprived and oppressed than the blacks in the Jim Crow South had been. And consequently raised a myriad of demands and 'reform' agendas that were expected to be implemented everywhere, all the time.

But not so much for some right as clear as the right to vote, which was obstructed by something as clear as poll taxes and voter literacy tests and police roadblocks to hinder access to voting places on election day. National legislation did away with the taxes, the tests, and the roadblocks.

Rather – and you can see this in Nussbaum’s list here – groups began claiming far more nebulous and complex oppressions. And those would require a far more complex and intrusive expansion of the government power.

Including the police power and the criminal law authority.

Thus, to stay relevant to SO concerns, the ‘right’ to not be sexually offended against (and almost all current sex crimes were crimes before the Mania began) drew the government police power into a much deeper (and un-traditional and, I would say, anti-Constitutional) role: sweeping away traditional concerns for the rights of the defendant (evidentiary integrity, the right to confront one’s accuser, the presumption of innocence).

There was a theoretical basis for this: if the ‘sexual integrity’ was indeed a ‘right’, then the ‘defendant’ was suddenly assigned the role of the Jim Crow Southerner who deprived the Negro of the right to vote. Thus the defendant in a ‘sexual integrity rights’ case becomes not a criminal defendant in the classic Framing vision of adversarial justice to determine innocence or guilt, but becomes rather the clear rights-depriver who has already deprived the victim of a Constitutional right.

Thus the ‘defendant’ becomes – as did the Jim Crow Southerners – the ‘perp who already committed the act’, an act that was moreover a deprivation of a Constitutional right. Thus then the government becomes not the seeker and trier of fact seeking to determine innocence or guilt through a procedure of jurisprudence, but rather the avenger and enforcer of the ‘right’ already violated.

You can see where this can verrrry quickly go.

Once you’ve assumed that the ‘right’ is already violated, then – as in the case of the notorious and long-known civil rights violations of the Jim Crow South – government is there not to ‘find’ justice but to enforce it. There is no need to ‘find’ anything because ‘everybody knows’ that the right was violated; the government’s role is to deploy its power to stop and vindicate ('avenge' would not be an inappropriate term) the already-assumed rights-violation.

This is reflected with stunning clarity in Nussbaum’s text. In matters pertaining to her listed rights, courts must NOT view cases with “detachment” or “impartiality”; they must NOT simply abide by formal procedures and rules (see page 23-26). Instead, they must indeed deploy the proper “emotion”and "sensitivity" and "imagination" and develop an appreciation for the “context” of the victim’s situation.

In a general way, this is clearly a regression to the emotionalism and partiality of Medieval era, before Western law developed its classic techniques for ensuring that the sovereign power (especially in matters of the police power) was not deployed against an innocent person. But of course in the classic era of forming post-Medieval, modern (that is, up to 1970 or so) jurisprudence, the goal was to protect the individual from the State’s interference.

The whole thrust of 'modern' and thus now 'classical' Western law was to remove partiality and emotionality from the adjudication process; they would be replaced with rationality, detachment, and a bias toward applying the law equally to each and all.

But precisely here Nussbaum says that since 'minority' interests are always going to be unequal to 'majority' interests (the original historical American reference point would be the Negro of the Jim Crow South) then the Law must most definitely be 'partial' because in their capabilities the 'minority' interests are not at all equal. In other words, in Law now the government (the sovereign power of the government) must indeed by verrrry partial in order to compensate for the 'deep' inequality of the 'minority' interests.

It's a very interesting thought. But given the monstrous dangers that would have to be un-caged (emotionalism and irrationality, the abolition of any sense of 'fairness' as it is generally understood), then this legal approach should have been given a verrrry wide and thorought airing in public deliberation and debate, and - most surely - a public consensus reached.

And if that consensus were not, at a given point in time, everything that the vision would call for, well ... that's the only way it can work in a democracy; otherwise you wind up with the government as Despot (yes, I know, Benevolent ... for the moment but never for long), imposing upon the country and the citizenry whatever it has decided is best.

But by deploying along the path of 'pre-existing constitutional-level rights' Nussbaum seeks to sidestep all that by asserting that, just as with the Negro in the Jim Crow South, the 'minority' must be protected from the 'majority'.

Thie wisdom of this use of the 'rights' path, and the general example of the Jim Crow South in the Civil Rights Era, is highly doubtful. There was a wide consensus in the country that the Jim Crow Era and its impositions on the Negro was not only clearly un-Constitutional but was also a treacherous betrayal of what had been - everyone had hoped - achieved through the awesome effort of the Civil War.

No such consensus existed in the 1960s (or - forty and more years later - nowadays) as to whether the numerous follow-on rights-claims that followed the 'civil rights' gameplan were actually as valid. Indeed, no consensus exists even today on the 'affirmative action' schemes that marked the 'second', post-1865 phase of the civil-rights movement.

The regime envisioned by Nussbaum – and the theory that is now much more popular among the elites of law and politics than they’d want to admit – is concerned instead with protecting certain designated select groups of individuals from other members of the same society, AND using the sovereign police power to do it!

And THIS, I think, is what is going on deep beneath the surfaces of the Sex Offense Mania regime (and to some extent the Domestic Violence law regime that is its sibling).

So these legislators and judges are perhaps not simply being mulish when they refuse to look at the actual facts and studies that now undermine their original Findings; rather, they have been assured all along that they are on a new “frontier of justice” (Nussbaum’s term on page 15-18) and are engaged in a vast program to ‘expand’ and ‘reform’ the constitutional vision. Oy.

This is not progress but rather a huge regression to pre-modern, semi-Medieval law.

It gets even worse.

Because since you already know that the ‘right’ has been violated because the victim is a member of a select designated class that has traditionally had its rights violated, and therefore the ‘defendant’ is actually already a ‘perpetrator’, THEN what matters in the court case is not the procedure; simply following the procedure may not fully reach the plaintiff-victim’s rights and situation. And anyway, because of the ‘traditional’ and ‘historic’ deprivation of rights, then you already ‘know’ what evil and harm was done.

No, what matters is the OUTCOME – the plaintiff-victim’s rights must be vindicated and upheld (and the deprivation of rights avenged). So away with all of the ‘quaint’ concerns for rules of evidence, statutes of limitations, and presumption of innocence; those reflect the ‘quaint’ concern for innocence-or-guilt of individuals; behind those formal procedural structures much historic deprivation of ‘rights’ – by definition an oppression – has hidden. Instead, use the trial to ‘understand’ the deprivation and vindicate the oppressee.

You might recognize this as ‘revolutionary justice’ as practiced in the Soviet Union: the purpose of a trial was to ‘show’ everybody just how the Revolution and the State (and by distant extension ‘the masses’) have been sinned against by this person who would not be a defendant before the revolutionary court if he were not already guilty. The procedures aren’t what matters; the ‘show’ of the State’s vindication of this crime is what matters, the outcome thus pre-determined because the crime was already presumed to have been committed in the first place. That was why Felix Dzherzinski, head of the Cheka (the earliest form of the Soviet Secret Police) boasted: “The Cheka does not investigate; the Cheka strikes!”. The purpose of the police is not to ‘investigate’, but to ‘strike’ at the already-active enemies of the State’s policies.

(And you can see here why the ‘special courts’ erected in some States to enforce the Domestic Violence regime have been uniformly ‘anti-defendant’: they and their officials are acting on the presumption of the guilt of the ‘perpetrator’ because everybody already knows that domestic violence exists; and thus these officials see themselves as there merely to ensure that the ‘perp’ does not ‘escape’ the punishment deserved by 'hiding behind' the Constitution. And you can imagine what ‘special sex offense courts’ would do.)

And this concept of ‘justice’ is thus not cutting edge and not new. And it is a regression. To an age as dark and horrible as the Medieval era’s heresy trials and the Reformation era’s witchcraft trials.

THIS is where American law (and legislation) has been heading for decades now, not sliding through inadvertence or temporary insanity but rather goaded on by a ‘new’, cutting-edge, ‘reforming’ theory that is actually – in its dynamics, whether it seeks to be or not – a throwback to something that not only the Framers but the entire tradition of Western law has (or had) grown beyond and formally rejected as a jurisprudential and legislative approach and as a theory of government.

The Mania in Sex Offense law is only on the surface; it is a lubricant to make the stampeding of public opinion easier. But in its theoretical core this new regime of legislation and jurisprudence is a throwback to dark and primitive times. And as such – whatever its good intentions – constitutes a lethal threat to the Constitution.

And it gets worse.

Nussbaum asserts that you cannot have a ‘right’ unless the government works “aggressively” to prevent the frustration of the capabilities that enable you to exercise that right (page 19-22).

This will be deep intrusion indeed; the government’s coercive power will have to cut verrrry deeply indeed into society, culture and tradition, and into the minds and hearts of the citizenry in order to prevent (as in ‘preventive law’, as in ‘preventive war’) not simply the violation of the right, but even the frustration of the capabilities required to enable an individual to exercise the right.

And so you get the ‘preventive’ element that has played so key a role in the Sex Offense law regime.

I’m going to add something, in conclusion, that indicates just where matters stand at this point.

Nussbaum asserts that since government has a duty to enforce these ‘rights’ and the capabilities to exercise them, and since these deprivations are most likely to exist among ‘minorities’ (which at this point, if you tote them all up, includes most of the population) because of the ‘majority’ (not much of the population) then these ‘rights’, including the rights-to-capabilities-to-exercise-rights must be “protected” from “the whims of the majority’ and from “being held hostage to the vicissitudes of politics (page 53-56).

In other words, this is not a matter for democratic deliberation or the forging of a consensus. Once again, we are seeing here the ‘elite’ and ‘professional call for an end-run around the entire process of a democratic politics in a Constitutional republic.

Again, the mistake was to imagine that all the rights-claims by assorted designated or self-designated 'minority' interests were simply the same sort of situation that the nation had faced in the first phase of the Civil Rights Era, in the Jim Crow South. There was a pre-existing national consensus (except among the most die-hard Southerners) that the Federal correction in favor of the basic rights of the Negro was long overdue, and historically justified since the promises made by the Civil War itself and in the Amendments and legislation that followed the War.

And worse is Nussbaum's assertion here that instead of national consensus and the legislation arrived at through the working of the politcial process, “judicial interpretation” must become the bulwark of these ‘rights’ and ‘capabilities’ (page 54-57).

Her approach has even given up on Congress and now seeks to ensure its survival by relying on the courts. And while this surely means the higher Federal courts, yet it also holds consequences for the performance of the lower courts, where defendants are tried and adjudications made.

She also wants to see her scheme formally adopted in the Constitution itself, since in its present form the Constitution is “incomplete” (page 55-58).

The only good I can see in this is that this type of thinking realizes that it is not going to have an easy time getting itself accepted in any genuine national political consensus and that therefore it will need to be imposed upon the country.

Well, that’s Nussbaum, at least the parts relevant to matters sex-offensual.

As you may already have figured, her list of ‘capabilities’ is heartening and I can’t imagine anyone of goodwill who wouldn’t be impressed with the ideal they try to embody. (Which is not to say that everyone would agree on the actual definition of what each of them entails.)

And it’s an impressive conceptual effort.

But I still have to ask just how far a limited government can go in living up to the expectations she has for it. in her schema. And I surely don’t see how a government can satisfy her vision and remain limited.

And indeed, she herself at the end seems to indicate that neither a limited nor even a democratic government is the government she needs for this job.

And THAT should give everybody some serious food for thought.

Because she is one of the most influential and well-known law professors and ‘legal thinkers’ in the country and she has been discussing these ideas for a long time (several of her earlier books are listed in the text of her article). So these ideas have been floating around law schools and courts and legislative offices and no doubt the many university and government cocktail parties (where far too much ‘work’ gets done, if you ask me) for a long time.

And the SO community, I’d say, has been living with the consequences.

But so have, whether they realize it or not, the entire American people.

And to the extent that that people still seeks to be The People, then they need to take note. Because whereas only Southern California really has to worry about imminent geological earthquakes, everybody has to worry about this human-made tectonic jiggering that is deliberately and energetically trying to move the tectonic plates upon which the entire American polity is grounded.

If there’s one thing I notice about the plan, it’s the underlying attitude of the infinite plasticity of society and culture and – frankly – people. It’s as if this type of ‘reformer’ assumes that everything is up for grabs, and can be changed to something better, and without significant cost or consequence.

As if you could simply tack ‘better’ jet engines onto a propeller plane and figure you’ve done a good day’s work. And while the craft is airborne and loaded with passengers.

It’s not enough to focus ‘optimistically’ on how much more ‘efficient’ and ‘better’ things will be for everybody with jet engines. It’s a matter of doing the math and asking the hard questions: Can the airframe take the increased strain? Are the wings properly shaped for jet-powered flight? Can the available technical crews do the job? Will the aircraft’s control and navigation systems be able to handle it? Will the crew? Will the passengers?

After all, the SO community has been directly impacted by just such a method of trying to ‘change things’: for 20 years now (15 since Megan’s Law) the governments of the States and the Congress have been getting deeper and deeper into the Vietnam of sex-offense legislation and jurisprudence. Each time it becomes clear that the most recent ‘fix’ or ‘initiative’ hasn’t worked, or has made things even worse, they just keep digging in deeper – as if, like in Vietnam, it will all ‘work’ if just a few more restrictions or a few more shrewd tactical improvements are made.

But it didn’t work in Vietnam and I very much doubt it will work here and now.

WHERE DID THEY GET THE IDEA?

A May 25th report informs us that the CIA had a whole bunch of stuff ready to make Saddam look bad in the run-up to the invasion of Iraq in 2003.

I hold no brief for the deceased. I point out (it’s been 7 years now) that this unsavory gentleman was a dictator, a bloody oppressor of his own people, and a secularist – perhaps even an atheist, at least in his philosophy of government. Oh, and a long-time ally of the United States, beneficiary of a goodly amount of financial and military largesse.

Anyhoo, once it was decided that he would make a useful enemy and target, the CIA went into creativity mode to make him look bad. The war, after all, being somewhat dubious and techy from a legal standpoint, public opinion would play an even more significant role than usual.

How to make him look bad?

Members of the SO community will not be surprised to learn that the government planned to make him look like a “pedophile”.

THAT, of course, was a handy way of demonizing a potential target and so lubricating your path to legally dubious undertakings. After all, the ‘sex offender’ had become – and not by accident – America’s demon du jour by that time (in that same year, the US Supreme Court declared that Alaska’s Megan’s Law was constitutional, overriding in the process that State’s own Supreme Court, which clearly ‘just didn’t get it’).

It was no accident that ‘sex offenders’ and ‘pedophiles’ – used more or less interchangeably as terms of public outrage and opprobrium – had become such a handy weapon. State and Federal legislators and jurists, ably assisted by the media which itself was fed all sorts of ‘science’, ‘research’, and ‘numbers’ by this and that ‘advocacy’ and cottage-industry ‘expert’ … they had all chipped in to pretty much design and develop this latest target-vessel against which the pols could demonstrate their law-making chops, through which the jurists could override legal principle and precedent to show that they too could shape the world, and off which the media could make a hefty bundle. What was not to like?

And, of course, rather than wonder about what their legislators were doing to further their common weal, the voters – with information thoughtfully provided by those same legislators – could occupy themselves hunting sex offenders around town.

Meanwhile, back at the CIA, the plan was hatched – did they have to really think hard about this? – to make a fake video showing Saddam (or a look-alike) having sex with a teenage boy.
The boy was a nice touch; it could have been a girl but that might not have bothered so many folks – even among the legislative and media and enforcement elites.

But as Tolkien noted in his famous trilogy, there are times when evil’s own plans create the causes of their own frustration. A ‘pedophile’ is attracted to prepubescent children, not teens. The scenario of Saddam with a teenager would indicate ‘ephebephilia’ – although that term doesn’t roll off the tongue so easily, and why confuse public reaction and slow down public outrage with any more ‘science’ than you have to?

And, by the by, clinical thought considers the attraction to teens – especially the older they are – as far less of a rehabilitative problem than the attraction to prepubescents. So perhaps somebody might have come up with the idea that if America were invading in order to rehabilitate the offender, then a lesser therapeutic regimen – sanctions or some time at a secure rehab center – would have done the job.

And saved the lives of a whole lotta grown-ups and ‘children’ in the bargain.

But doctors and diplomats operate in different worlds, and when you’ve tossed ‘evil’ into the bargain, then there’s nothing for it but to drag the valuable cannon all over the shop and start slamming away at point-blank range.

So this was an emergency and surely ‘national security’ was as vital as ‘public safety’ and anyway who paid much attention to specifics? In the Great Cause of Doing Emergency Good there is indeed such a vice as ‘thinking too much’. And of course, nowadays, just about everything is an emergency … so I don’t have a good feeling about how it will all end.

As it may have already occurred to you, there is some connection here between sex-offenses and the invasions.

Although it’s curious that there isn’t anywhere near so much American outrage or ‘concern’ about the actual long-standing general impression that adult tribal fighters in the Afghani milieu have a tendency to form particular attachments to teenage boys (which perhaps they got from Alexander, whom they also defeated). It’s a funny thing about this sex-offender outrage … how it can latch onto something here and pretty much not-notice something there.

Of course, the Afghanis have a couple of things going for them that American sex-offenders of any type don’t have: the US government needs the Afghanis – not only to beat the Taliban forces but also to not-beat the American forces. Funny how quickly ‘concern’ and ‘outrage’ become ‘strategic’ … it makes you start to think the stuff can be turned on and off like a faucet.

So much for principle or the claim that It’s OK to break the laws in order to get at sex-offenders because God Made Me Do It. Or out of ‘concern’. Whichever.

Americans targeted as ‘sex offenders’ have no such protections. They only have the Constitution, which both Left and Right have declared to be either “defective” or “quaint”. When you as a Citizen are faced with an assault by government and you plan to meet the attack armed with ideals and principles … you’re sorta pretty much bringing the proverbial knife to the proverbial gunfight.

The government subscribes to the old military adage: if they have pistols, you bring rifles; if they have rifles, you bring machine guns; if they have machine guns you bring grenades – and you ALWAYS bring artillery.

Which is a fine principle for conducting victorious military operations: bring enough force to win decisively and quickly. If it’s ‘a fair fight’, then somebody screwed up.

It’s not such a good idea for police and prosecutors – so often former military themselves – to bring those ideas to be deployed against Citizens in civil or criminal cases. *

But the military approach is much more useful to dedicated and impatient Deputies of both the Left and the Right: in military law, as in any other aspect of military operations, the Mission and the Success and Achievement of the Objective – Victory, in a word – is the only guiding principle. And nothing will be allowed to obstruct the achievement of Victory.

It is this iron rule that has contaminated the pool of Constitutional defenders: because if Constitutional principles are standing in the way of you achieving The Objective, then those principles have to be ‘neutralized’. This is as true for the Left as for the Right.

And it was the gimlet-eyed ‘sensitivity’ of the Left that bonded with the ‘law and order’ and ‘anti-Evil’ of the Right to create the Victimist approach to law that found its most recent apotheosis in the Sex Offense Mania and the erection – as if it were a dark idol – of the Sex Offender as the latest national Boogyeman.**

So what this Saddam story says to me is that the government got the idea to sex-offender (used here as a transitive verb) him from what it had ‘achieved’ against Citizens domestically. And – alas – without effective public opposition.

And worse, that sex-offenders are the combined targets of the Left’s ‘reforming’ urges and the Right’s ‘restraining’ urges and their combined Victimist ‘revenging’ urges … although for sly efficiency’s sake the whole complex coalition’s bundle of motivations is fronted by ‘public safety’ the same way the current (not to say successful) wars are fronted by ‘national security’.

And worse, that both the Left’s revolutionary approach and the Right’s military approach both require the flattening of the Constitutional walls precisely designed to prevent an assault on the rights of Citizens.***

So I think that the assorted Oath-bound legislators, jurists, and others have pretty much settled in to a ‘war’ against ‘sex offenders’ – one which, as long as the Constitution is kept locked up in the basement they are guaranteed to win.

Which – alas – may go some way toward explaining Obama’s recent embrace of AWA and all its pomps and all its works: he needs to pander to whatever ‘bases’ he can, and the Sex Offense Mania will make both Left and Right ‘happy’.

Thus, as I recall reading on one of the SO sites last night, he is pouring lots of money into the Byrne legal funds pot, so that States who refuse to comply with AWA will lose a larger amount of actual funds (the 10% they won’t get that will be split up among the States that went along with this frakkulous regime) … this is not how good legislation progresses: you don’t have to force States to accept a good idea, you don’t have to bribe them and threaten them and sleazily manipulate the situation so that the State legislators are put in an impossible situation.

You don’t need to do that with good laws.

But Obama needs to do it with AWA.

And the courts and legislatures of the land have to do it with the whole Sex Offense Mania regime.

They are corroding the Constitutional ethos that protects Us all.

NOTES

*And it was one of my first tip-offs that something verrrrrry bad had gotten loose in domestic law enforcement when the earliest Federal sex-offender legislation included – like a mantra – ‘or convicted by military courtmartial’: it told me that something very dark, that had been caged within the military setting, had now felt strong enough to brazenly strut among us in the bright light of national domestic legislation. You may rest most surely assured that any military justice event is conducted along the same principles as outlined above: they never go in for a ‘fair fight’ and if you are ‘downrange’ then you’d best make your arrangements while you can.

And, of course, that un-caging was just the first of many un-cagings as long-established Constitutional principles collapsed, their erstwhile Oath-bound defenders not defeated but rather actually digging out the foundations from under them.

**I am not implying here that there is no such thing as ‘victimization’. Nor am I claiming here that such a lethally unholy consequence was actively and deliberately intended. But the elements were loosed and that’s how they came together, and the Sex Offense Mania is what the interaction of those elements has created.

***When I get this Nussbaum Post up (and I finished taking the notes last night) you will be treated to the dizzying experience of having traditional ‘rights’ declared inoperative in the pious and brassily hopeful assertion of better ‘rights’. As if – at 30,000 feet – you could reasonably imagine that you could replace propeller engines with jet engines without creating too many problems for yourself. And your passengers.


ADDENDA

I have just come across two interesting bits that are of relevance to SO concerns.

First, and remarkably, there is a report that the new British coalition government is promising to take broad and deep action to reverse the trend of corroding civil liberties that has swept that unhappy Isle for several decades now.

Roll-backs will include the government pressure for a National ID card. There will be a re-expanded concept of Freedom of Information in matters of government transparency, the restoration of rights of non-violent protest, safeguards against misuse of anti-terrorism legislation and restrictions on the use of CCTV security cams, and others.

Of special interest to the SO community are “the protection of historic freedoms through the defense of trial by jury” and “a new mechanism to prevent the proliferation of unnecessary new criminal offenses”.

The entire Sex Offense Mania regime has been an example – but not the only example – of such proliferation. The concepts of victimist-feminist law and the political dynamics of same were hugely responsible for the pressure to take what were already criminal offenses and erect them into a Miasm or Web of ‘sex offenses’ perpetrated by the demonic evil class called ‘sex offenders’, whose dark and vigorous existence (like the alleged ‘domestic Red’ conspiracies of the 1920s and the early Cold War) required the corrosion of traditional Constitutional safeguards.

And as I have often said, both the law-and-order Right and the ‘constitution-is-quaint-and-oppressive’ Left could get in bed about it.

One of the darkly elegant mechanisms of a Mania – as both Lefty Reds and Righty Nazis discovered in the early 20th century – is that once you have stampeded public opinion, then the jury pool is tainted before the fact, before the potential jury members are even summonsed to duty. And this tainting is done by the government and its media collaborators … but in such a way that no criminal act of jury-tampering can be proved. This is the new government-advocacy-media crime of ‘jury tainting’, I’d call it.

If this Brit thing comes true, it will be amazing to see a major government – or any government – actually promising to roll-back its grip on power that it has taken to itself.

If it works, then this is indeed going to be one of the watershed moments in human history.

Second, Glenn Greenwald – attorney and acute commentator on the Salon Magazine site – has put up an article entitled “New targets of rights erosions: U.S. citizens”.

It’s worth a look, certainly.

But I note again that like so many many many of the major and minor public commentators, Greenwald completely ignores the Sex Offense Mania regime as he recounts the history of rights-erosions in this country.

Not that he is the only commentator who does that. From the Left, it all started with Bush-Cheney; from the Right it has to do with the Democrats from 1968-2000. But noooobody mentions the Sex Offense Mania regime.

This cannot be a coincidence. I am NOT saying that there is some commentator-conspiracy, or that there is some secret guidebook on what to talk about and what not-to.

But I am saying that they all instinctively seem to know that the Sex Offense Mania regime is something that they can’t talk about. If you're a commentator with a reputation of even minimal competence that you'd like to keep, then you can't endanger your creds by attacking it, and you can't endanger your competence by agreeing with it. The result being that the whole regime has pretty much disappeared from mainstream public discourse.

I think it’s because both Left and Right are so deeply implicated in it; and because you’d have to do some real Tire-Kicking against victimism and feminism as they have evolved in public policy and law … and you’re bound to create an awful lot of discomfort in an awful lot of places by doing that.

And perhaps also, it’s clear to many otherwise insightful commentators that the entire Sex Offense Mania regime is such an embarrassing and frakkulent mess that there is no way to try to approach it. There is no way to examine it without exposing the verrrry queasy perversions (I couldn’t resist!) of law, truth, integrity, and Oath-bound responsibility by legislators and jurists, as well as the self-serving tactical machinations of media and the cottage-industry experts and advocacies.

And lastly, the commentators themselves – no matter how prominent – are wary of the awesomely dangerous and primitively irrational characteristic now established (again) in American public discourse: if you don’t hate them totally then you must be one of them. Or: if you don’t hate ‘it’ totally, then you must be ‘for’ it.

And once such immaturity has taken root (again) in public discourse, then the potential for serious corrective action is greatly compromised.

MODERN WITCHCRAFT TRIALS

Apologies for the delay in Posting. Two things happened over the past 5 days: first, computer connection problems – now solved. Second, the latest series of ‘Miss Marple’ mysteries on PBS has shocked me. You may recall that this is part of a series of PBS mysteries set in an ‘old’ England that looks much like the Merchant-Ivory England of the 1980s, with charming country villages, bosky estates, tastefully attired Brits, and various old cars in all their shiny glory. Well, the recent installment chooses as its old car … a 1956 T-bird, which really doesn’t strike me as old at all!

That said, I came across a short piece in ‘The Atlantic’ this morning that merits a quick look.

The Republic of Central Africa has a ‘court problem’: its courts are currently jammed to overflowing with trials for witchcraft. This is especially true in the outlying districts, beyond the capital - where, if the country has any natural resources worth noting, there are probably scads of thoroughly modern US government types busily trying to deconstruct local culture and also secure rights (or at least functional control over) the resources. Such is our modern American reality.

The article estimates that a full 40 percent of trials are witchcraft prosecutions. And in some areas, for example in the local center of Mbaiki, Pygmies – who by conventional wisdom are well-known for “bewitching each other” – drive that up to 50 percent. Many American readers may quietly snigger, but the American SO community needs no enlightenment in this sort of thing. Such is our modern American reality.

A local judge, university-trained and exuding a French gentility, points to the section of the Criminal Code that requires for the crime of PCS (‘the practice of charlatanism or sorcery’) a decade or more in jail and a fine for engaging in witchcraft.

The ‘charlatanism’ recalls the ‘cottage industry experts and advocates’ that have sprung up like remoras around the great shark of the Sex Offense Mania over here: dubious ‘numbers’, dubious ‘studies’, dubious credentials, dubious worst-case claims, a highly elastic definition of the ‘crime’ that could be anything at all, and – as we have now been seeing in the Megan’s Law matter – a queasy ability to suddenly forget all the confident assurances and outrageous claims they trumpeted 15 long and dark years ago.

The reporter (Graeme Wood) opines that while the judge admits things are a little extreme law-wise, and the township doesn’t have the money to maintain the jail that would have to hold all the convicted, yet he (the judge) sorta likes a law that gives him so much authority.

Apparently, especially among a certain tribe within the Republic (referring here to Central Africa), “a staggering range of misfortunes” are ascribed to “meddling by witches”. You don’t have to look very far over here to see the lists of claims as to what even the most minimal sexual contact can do to a life. And helpfully so, explaining away with no responsibility accruing to the erstwhile ‘victim’, just about any failure or mis-step or unhappy outcome in a life.

(And, as ever, I hold no brief for genuinely unwanted sexual experience or contact.)

Further, the ability of ‘witches’ to “cast spells” and to generally – well – ‘bewitch’ folks, is so widely and pervasively active there (according to the conventional local wisdom) that the government simply has to step in and do something about it. Although just what a government can do about witchcraft … well, in the modern West (up to about 1970 or so) that lesson was learned the hard way: the Salem Witch-trials of the late 1600s left the Medieval Catholic heresy trials in the dust, drawing the coercive police power of the government into torture and execution.

Which also dragged the newly-aborning court system that was emerging out of the Medieval morass back down into the awful swamps of innuendo, fear, accusation without evidence, and ‘victim’ assertions running as wild as kudzu.

But the Central African citizenry “demand that the law reflect the influence of witchcraft as they understand it”. Which gets me to thinking not about how un-modern the Central African folks remain, but rather how un-modern the American folks have become … all over again.

Nicely, it is not legally allowable to claim as a defense that the plaintiff suffered “an act of God”: the witchcraft apparently overrides any power God might have in the world as it is seen over there. In this sense, while the Central African culture accepts the actions of the Beyond in its daily affairs, yet that Beyond is somehow not responsible for the evil competencies of witches and sorcerers. And since such witches and sorcerers are very much in this world, then a government of this world must somehow use what powers it has to solve the problem.

Which is a curious mishmash of belief in a Beyond and yet a Flattened sense of what that Beyond can or does do.

Not that the government over there minds. Since you are going to start taking over the powers of God, then you will need the authority of God – and what government in human history has ever turned THAT offer down?

Well, come to think of it, that government Framed in Philadelphia in 1787 … but, as conventional wisdom now assures us – at least among the elites – that government is “quaint”*.

Interestingly, the Republic’s national government (Central Africa’s, not ours) is thinking of striking witchcraft from the books. Perhaps – may I? – they figure that if they are going to be pressured into accepting assorted American legal ‘reforms’ associated with sex-offenders and other such stuff, then they really won’t need ‘witchcraft’ laws any longer; they’ll have more than enough chance to strut their authority going after sex-offenders and such. Although if that is indeed part of what’s going on, then they need to be apprised of just how frakkulous a mess AWA has created for States here and for the Federal-State ‘partnership’.

Perhaps those distant legislators have already noticed that they too are now being offered a ‘partnership’ – and if so, then I can only hope that whatever residual fear of genuine evil they still retain might serve them well in warding off this most recent temptation masquerading as ‘humanitarian reform’.

Anyhoo, Wood reports that the lawyers over there whom he interviewed still wanted to keep the laws on the books, although “they admitted that it [i.e. witchcraft law] fits uneasily into a modern legal system”. And that’s true.

Although the US no longer has a ‘modern legal system’: it has been ‘reformed back’ – or ‘regressed’ – to a pre-modern form, thanks to the Sex Offense Mania legal regime and its assorted related regimes, philosophies, and claims. Apparently these members of the Bar over there were trained in ‘modern Western’ law and have not been familiarized with the back-to-the-swamps ‘reforms’ of the postmodern American legal cosmology. Multiculturalism, we hardly knew ye!

Western Law, we hardly knew ye! And now it’s gone.

Well, not quite.

Wood interviews one attorney who has recently defended (unsuccessfully) a bunch of Pygmies who had been accused of murder-by-witchcraft. Observes the defense counsel: “The problem is that in a witchcraft case, there is usually no evidence”.

Bingo. Precisely the swampy mess that the West was trying to grow out of in the 1690s when the Salem Trials tried to re-introduce the old addled screams and claims as sufficient ‘proof’ (along with any pressure that could be brought on the hapless defendant to ‘confess’ (or – nowadays – plea bargain)).

(And after reading Nussbaum, you will see precisely just how ‘the lack of evidence’ is now considered a ‘reform’, especially since the trial is expected not to find out if a crime has been committed but rather to demonstrate the State’s power by punishing someone already presumed to have committed the crime (if there is indeed a victim, there must indeed be a perpetrator … see, it’s logic and science!)).

Good blessed grief. This is progress?

How could anybody in the SO community be surprised when the lawyer then acknowledges that the witchcraft trials “generally ended with an admission of guilt by an accused witch in exchange for a modest sentence”. You can see the scam here, and it is also a self-licking ice cream cone: A) you come up with a crime that it is impossible to defend against and then you attach a huge penalty of imprisonment; B) realizing that there’s no way they can defend against the charges, defendants will plea-bargain in order to escape what is clearly an inescapable mess; C) you then add that ‘guilty’ to all the other ones you’ve gotten through this scam and can demonstrate that your law ‘works’ and you have the numbers to prove it.

The law goes on, everybody is happy: legislators, judges, many attorneys, the ones who brought the charges in the first place … what’s not to like?

It’s anticlimactic perhaps when the reporter then asks “how one determined guilt where the alleged witches denied the charges”. The attorney replies that “the judge will look them in the eye and see if they act like witches”. But of course. If you act “strange” or “nervous” in court (and who the frak wouldn’t, facing such a meat-grinder?) then clearly you are guilty. No Visigoth or Ostrogoth could find anything objectionable in such jurisprudence.

And in place of the many 1980s-era Warning-Sign lists (published breathlessly in self-help-for-victims Warning Sign Lists**) which were getting a little outre, Congress stepped in with a simpler solution: it would simply make laws based on Findings that enshrined all the whackulous claims about sex-offenders, eliminating the wide need to consult the assorted Warning Sign Lists: if somebody is convicted, then you can reliably assume that he is a sex-offender and you don’t have to go out and buy half-a-dozen self-help paperbacks to compare the Lists and compose your own … and then go looking around town. A marvel of legislative efficiency (if not integrity) to which the Poritz court added jurisprudential creativity (if not integrity). Ach, those were ze happy times!

The attorney then, however, adds an interesting bit: the legal system (in Central Africa) “could not ignore a social fact as firmly embedded as witchcraft in the republic”. And I imagine that witchcraft is as firmly embedded there as in many other societies not deeply touched by the history of Western Law during its classic (now considered “quaint” by American elites) period.

There is, after all, a dark primal strain in all human beings; after all, we retain a complex layered brain structure that contains the old primitive sections, and then evolved more complex and advanced sections only more ‘recently’ (in evolutionary terms).

The kicker is that in the classic West, and in the government Framed in Philadelphia in 1787, the benefits of that evolutionary advantage were built into the political (and legal) system: it would be the reasoning competencies of the most advanced (but recent) parts of the human brain upon which the whole structure would be built. Hence, those more primitive legal practices based upon suspicion, fear, dark and unreasoning emotions generally, and especially upon impatient fear and revenge … those practices would be left behind.

But then came the awful resurgence of emotionalism that has accompanied the stampedes of the past 40 Biblical years over here, and almost immediately those stampedes began corrupting (and regressing) the hard-won legal developments that had put a stop to all the dynamics evident in the old witchcraft trials. And in the name of ‘reform’ and ‘progress’. And with the full connivance of a vote-addled Beltway.

This, I think, has not been a good thing.

And I don’t think it well end well. But that’s a quaint view, and hardly original. The Framers saw as much in 1787. The government in London saw as much even as far back as 1693.

I can’t see the ‘progress’ here. At least, not enough progress to justify the awful cost of unleashing the dynamics of witchcraft and the profoundly dark ‘witchcraft instincts’ deep within humans.

NOTES

*I have recently completed reading two works: Robert Elias’s book “The Politics of Victimization” from 1986 and Martha Nussbaum’s 2007 Harvard Law Review 100-page article “Constitutions and Capabilities: ‘Perception’ Against Lofty Formalism”. I will be Posting on both shortly, just so you can get a sense of a) how far back and how serious was the threat posed as far back as a quarter century ago, and b) how even the most ‘elite’ and prestigious legal thinkers (and law professors) are now undermining any efficacious concept of ‘limited government’ (which phrase I use here to mean the limitations on the deployment of the sovereign police power against the Citizens).

Again, I think it is important for the SO community to get a grasp on just how much the SO Mania is not simply some weird weed that has sprung up in an otherwise well-tended Constitutional garden, but rather is just one in a possible jungle full of seeds being developed by assorted elements among the various professional elites, and are being sold to the Beltway (eager buyers, all) as not only Necessary but as A Good Idea and as The Right and Only Way To Go.

**So for example: ‘If you get a strange feeling whenever you hold a cup of hot coffee, then you were probably abused by your father because … daddies drink coffee. See? It’s science!’ That sort of thing.

GARRY WILLS ABUSING THE POPE

(I put this article up on my other site. It’s about the Catholic clergy sex abuse crisis; the popular intellectual Garry Wills gives his views in the article to which I link here. Since I get into concepts of feminist and victimist law as they relate to a sex-abuse situation, I thought it would be of some use here. Apologies if there’s a bit more other stuff – religious history and Western political history – than I would usually put in an SO Post on this site.)

I have a backlog of subjects and material for Posts and I don’t like doing a same-subject Post immediately after I’ve already done one.

But after putting up the previous Post yesterday, the course of my reading today brought a Garry Wills article (“Forgive Not”, in ‘The New Republic’, print edition of May 27, 2010, pp. 14-16).

The article is worthwhile in a negative sort of way.

Wills starts off with the wrong dates, and portentously so: “This early in the twenty-first century, the rulers of the Catholic Church have suffered an earthquake of crumbling credibility. Nearly ten years ago …” He’s going for the long-range ‘historical vision’ here, and considering that the Church has been around for all twenty-one of those centuries, it’s not a bad thing.

But “the rulers of the Catholic Church” strikes a sort of monarchical note that does not really capture the mode of governance that operates in the Church: the Vatican does not “rule” in the sense of a monarchy in the Middle Ages or in any pre-modern era. Though surely in a democratic (such as it still is) era the term “rulers” is going to strike certain chords in any reader.

It wasn’t ten years ago but twenty-five or so that the first focus on Catholic priests surfaced, about the same time that the ‘victim’ or ‘victim-rights’ movement was picking up steam, in Reagan’s first administration, not long after the Satanic Ritual Abuse School Day Care mania had gone through its first explosive phase. My own thought is that Wills uses the shorter time-frame to avoid giving ground for a reader wondering why this thing has been going on for a quarter of a century, and to preserve a sense of the ‘freshness’ of the issue.

He is falling into line with the thrust of this 4th phase (by my count) of the Catholic Clergy Sex Abuse matter, which is to go after the Vatican, the Pope and the rest of the Church’s leadership in Rome as well as in Europe. “At first, the Vatican rejected the measures taken [in 2002] by [the US bishops’ conference ] … as not being fair to accused priests, giving too much scope to lay panels of critics, and violating the confidentiality of confessions”. This, to Wills, constitutes evidence of collusion and cover-up.

But it seems to me that the observations made in Rome were perfectly consistent and precisely the type of moderation to be expected by a reviewing authority considering measures made by more local authority in the heat of a sudden situation that had arisen somewhere in the world.

And surely, the dynamics of the evolving victimist-‘sensitive’ jurisprudence (and media treatment) were unfair to any accused. In the evolving script dynamics, a) anyone who claims to be a victim is indeed a victim; therefore b) anybody accused must be a perpetrator simply because ‘there is a victim’; and further c) a victim cannot be questioned closely or skeptically about an allegation because that would ‘revictimize’ and ‘disrespect the pain’ of said victim; but there’s no need to worry about a miscarriage of justice (civil or criminal) because d) victims don’t lie.

You don’t need a law school education to see how such a set of assumptions – utterly fundamental to victim-oriented ‘justice’ – would, regardless of their ‘good’ theoretical intent, profoundly derange Constitutional principles of ‘innocent until proven guilty’, the right to confront and examine one’s accusers, and indispensable standards of evidence.*

Wills, however, wants the Vatican comments to be evidence of something much more sinister. This is not solid historical analysis; it is selective and seeks to move readers toward one specific (and negative) view, though the supposed ‘evidence’ clearly indicates that there are other less-sinister and even more plausible explanations.

Equally so, he quotes a Cardinal (Bertone) who opined to an Italian magazine that he didn’t think it a good idea that a bishop be required to forthwith “denounce” to the police one of his priests who “admitted the offence of pedophilia” to that bishop; if a priest could not confide in his bishop then the core of the bishop-priest relationship is cut away.

Bertone is right, from a purely conceptual standpoint. Although there is enough evidence that bishops did not hold up their end of the responsibility by taking forceful action (insisting on credible therapy, removing the priest from certain ministries, or from ministry altogether, or having Rome ‘defrock’ him).

Becoming aware of that, the Vatican now has to steer an even more difficult course: beefing-up the disciplinary and preventive elements of episcopal oversight and priestly training, while simultaneously not yielding to the excesses of the reaction that Rome’s own failures have ignited.

It also strikes me that Bertone’s reference to “an offense of pedophilia” is unhappily vague. Is he referring to a priest confessing what amounts to the clinical diagnosis of pedophilia – which itself is only ‘an attraction to’ prepubescent children? Is he referring to the confession of an actual pedophilic act? Or merely to that ‘attraction’ though it has not been acted-upon? And if it has been acted upon, in what degree was the ‘act’? Or is it a sexual attraction but not to prepubescents? Acted upon or merely the ‘attraction’? To the conventional ‘script’ as it has now evolved and mutated, this is all ‘thinking too much’ and ‘evidence’ of collusion and cover-up; but to any administrator or manager or leader of a human organization (and not just a religious one) these are significant questions that must be addressed before a constructive and efficacious corrective policy can be formulated and deployed.

Similarly Wills quotes another Cardinal (Casado), not an American, who looks at American society from the outside (rather a multicultural sort of thing) and opines that the pedophilic scandal is attributable to “exaggeration, financial exploitation, and nervousness”.

To Wills this is evidence of more high-level cover-up. But Casado’s remarks are hardly inaccurate, though not a complete assessment of the matter. That from the point of view of social psychology there is some connection between America’s embrace of abortion and a greatly reduced family life on the one hand, and a simultaneous anxiety over the safety of ‘children’; that one of American feminism’s primary foci has turned out to be the sexual activity and proclivities of males; that the ‘reform’ (actually weakening and skewing) of both civil and criminal jurisprudence (see Note 1 below) has had as one of its consequences the opening of a highly lucrative opportunity for unscrupulous litigation; that the combined authority of both media and legislators has been deployed in the service of heightening this societal anxiety (or ‘nervousness’) … these are hardly inaccurate or irrelevant observations. It’s mostly sad that Americans as a rule can’t see these dynamics as clearly as non-Americans.

(And I suppose I’d best say this now: I hold no brief for sexually abusive priests nor bishops or any managers lax in their oversight. I say this here because I noticed in victimist matters decades before the reign of Bush-Cheney, that verrry disturbing simplification to the effect that in the matter of victim-sensitivity one is either ‘with us or against us’ and that any effort to think is nothing but evidence of ‘insensitivity’. And, Wills would like everyone to think, evidence of collusion and cover-up.)

I can certainly agree to some extent with Wills when he quotes disapprovingly the opinion of the dean of canon law at the Gregorian University that “the bishop and superior (of religious orders) are neither morally nor judicially responsible for the acts committed by one of their clergy”. The service of human beings generates a strong responsibility to ensure training and oversight of those who will serve; this is as true for the Church as it is of, say, the Pentagon, when it deploys combat troops into civilian areas where non-combatants might be harmed by the actions of those troops.

And I think that in that regard the Church has not taken its responsibilities seriously enough. And to the extent that the Church is now correcting that – and has – then things are progressing at least as well as, again, the military’s efforts to fine-tune its activities in the several current war-zones. **

Another Cardinal (Maradiaga) is quoted as observing that Cardinal Bernard Law (of the Boston Archdiocese, in charge there when the 3rd phase broke out in January of 2002) was subjected to “Stalinist processes against Churchmen”. As I say in Note 1 below, the similarity of dynamics between ‘revolutionary justice’ and the methodology of feminist-victimist law cannot be ignored.

Which is not a cheap shot seeking to ‘trump’ everything else, but rather is an observation that warns of the presence of dynamics highly corrosive of the Constitutional ethos and is intended to stimulate serious deliberation about what is going on and the possible consequences (unintended, one must hope).

Another Cardinal (Rodriquez) is quoted as observing that the sustained nature of the media attention amounts to “an obsession [that] is a mental illness”. From the point of view of a social-psychology analysis, it’s neither an inaccurate nor irrelevant observation.

The same Cardinal observed in a press conference that Americans have become rather litigious, using the example of suing a homeowner for slipping on a banana peel on the sidewalk in front of the house. This is hardly an original or novel observation and is almost conventional-wisdom even among Americans. As is his further observation that such litigation has become “a kind of industry” in the United States. That Wills claims this as evidence of cover-up or avoidance is a stretch indeed.

The same Cardinal then perorates that he’d rather go to jail than “harm one of my priests”. As a statement of pure principle it is unobjectionable and even impressive – surely the example of Abu Ghraib, where the ‘little people’ among the guards were offered up as scapegoats while the higher-ups escaped consequences comes to mind.

But I have to say that if any prelate in episcopal authority or in the Vatican failed to take sufficient measures in the oversight and training of his priests, then he has indeed “harmed them” as well as made possible the harm to any genuine victims of such priests. And in that I concur with Wills’s anger.

Wills then asserts that although his own book – “Papal Sins” – was published in 2000, before what I would term the 3rd phase, yet he sees now “the same patterns of denial, evasion, defensiveness, accusation, and protestations of innocence and holiness that I had already analyzed”. I have not read Wills’s book, but the quotations he marshals in this article do not with any degree of clarity establish such “patterns”.

Indeed, I am reminded of nothing so much as the ant-aggressors in T.H. White’s “Once and Future King”: preparing for a war against another nest, the ant propagandists say of their intended targets that “they are attacking us by defending themselves”. This dynamic is a key element in the victimist methodology, sad to say: if you do anything less than totally and immediately accept and approve every claim that a self-designated ‘victim’ makes, then you are somehow ‘attacking’ or ‘re-victimizing’ the victim. This simplistic equation is a recipe for democratic and Constitutional catastrophe. And it is no coincidence that White’s novelistic characterization was a reflection of Hitler’s actual propaganda as he gobbled up one neighboring country after another claiming ‘national self-defense’ and characterizing any opposition to his invasions as ‘attacks upon the German troops and people’.

But then Wills goes in another and more extraordinary direction. He claims to have been moved by reading Lord Acton’s disapproving assessment of the first Vatican Council (1870): Pius IX had used low political pressure tactics to get the Council to approve his claim of ‘papal infallibility’, Acton said, but clearly a papacy that had gotten through the St. Bartholomew’s Day Massacre (of the French Huguenots in 1572) and whose claims to near-imperial authority were based on forgeries (the ‘Donation of Constantine’, dating from the 8th or 9th century A.D.), “was just acting true to form”.

This gets Wills going on the idea that the Papacy itself is an “ahistorical” accretion, almost a parasite (my image, not Wills’s) that fastened itself upon genuine Christianity and upon “the people of God” (Wills’s term). In other words, there is, according to Wills, a genuine Christianity comprised of lay believers, and then there is this thing comprised of clergy and bishops and Pope that was not part of the “early history of the Christian community”. Nor, he adds, were “males the only ministers at the outset”.

I had mentioned in earlier Posts within the past month that among the ‘interests’ comprising the synergy driving the oddly sustained ‘crisis’ of Catholic clerical abuse was a congeries of primarily Western and American elements who a) want to ‘democratize’ the Church and b) want women to be ordained (as part of the feminist initiative). I had also opined that this 4th phase of the ‘crisis’ seemed even more specifically aimed at taking a big bite out of the Vatican and the Papacy itself, almost as a logical extension of the earlier phases, but more specific and, consequently, more revealing of its basic generating dynamics and objectives. And here now is Wills’s article pretty much laying the whole thing out.

Wills recounts the history of the Papacy’s increasing monarchical trappings and power throughout the Middle Ages. He presumes that it is evidence merely of a parasitic organism’s deliberate attempts, with malice aforethought, to impose itself upon genuine and true Christianity, those “people of God”.

I would like to see more concern for the complexities of Western history after the Fall of the Roman Empire. The Bishop of Rome – now the only authority left in the City with the departure of the Imperial court – became the only temporal as well as spiritual authority in the City. And when the Western Empire collapsed, and the Byzantine Patriarch attached himself as a sort of Court Chaplain to the Eastern Emperor in Constantinople, the Bishop of Rome both became the only authority left in the West and also sought to gain some equal authority to the Patriarch of Constantinople in order to prevent the lands and peoples of the former Western Empire from simply being subsumed spiritually under the senior authority of the Patriarch and the Emperor in Constantinople.

In the process the Roman Church established itself as independent of secular and temporal authority (as the Orthodox Church in the East, as evidenced by the Russian Orthodox Church, did not do).

As the Dark Ages ended and the Middle Ages began, Western political structures began to develop into nascent monarchies, and the Papacy found itself now striving to preserve spiritual independence across a broad spectrum of grasping temporal powers. The Papacy wound up becoming something of a temporal monarchy itself in order to avoid being overrun, or being subsumed as the ‘court chaplain’ of this or that momentarily dominant monarch or ‘emperor’.

And it wound up not only remaining the fulcrum of spiritual authority but also struggling to retain itself against the temporal tumult of Medieval European politics.

You don’t operate in floods like that without getting wet – and the Papacy wound up as temporally befouled as the rest of the monarchies of the time.

But to characterize this as some sort of long-held conspiracy on the part of (pick one or several: power-hungry clerics, ‘men’, maniacs) to deprive God’s true people of their rightful authority in matters of Church governance ... that is indeed a stretch.

Indeed, absent a central fulcrum of identity, Christianity would have dissolved into the many variants that actually developed after the Protestant Reformation, including the queasy fundamentalist sects so repugnant to Wills and the ‘liberal’ interests with whom he shares such an aversion to the Vatican and the Papacy.

So his analysis here does not at all impress.

Especially when he refers, almost incoherently, to the Papacy’s “ahistorical and medieval roots”. In the first place, the Papacy is verrry much ‘historical’ and in the second place its roots go back further than the Middle Ages (although roots in the Middle Ages alone would still be a pretty hefty set of ‘historical’ credentials).

I see in Wills the feministical tendency, evident as well in Marxist thought, to see ‘history’ primarily as a ‘conspiracy’ of those currently targeted as being ‘successfully in power’; said ‘conspiracy’ to have somehow existed and been sustained and nurtured over long eons of human history. Marx actually was on to something – the natural tendency of humans to seek security but also to overdo it and greedily amass resources – but the ‘conspiracy’ bit as a fundamental driving dynamic of history was a serious derailment.

Ditto the feminist assertion of the all-powerful ‘patriarchy’ that was responsible for everything that they felt was wrong these days (and whose ‘defeat’ was, by the by, such a great achievement of the present cadres of the revolution): ‘men’ had evilly plotted and ‘oppressed’ for no reason but pure malice. (Yes, there is now a kinder, gentler branch of feminist thought that feels ‘men’ might simply have been ignorant, and will be rescued by the current cadres – but the essential presumption that ‘men’ are ‘the problem’, have always been the problem, and will continue to be the problem remains.)

This is the investigative paradigm that Wills brings to the Papacy, through the mechanism of this multi-phased, sustained ‘clergy sex abuse crisis’.

Thus he rails against “the mythical underpinnings of the priestly system”. I think he only means ‘male’ priests; I get the impression that if priests were women, his objections to ‘the priestly system’ would dissolve; perhaps also his objections to the Papacy if a woman were Pope.

He asks with an angry flourish: “What real change can occur when such myths are clung to with a blind ferocity?” I’m not sure that the Vatican is either ‘blind’ or ‘ferocious’, but certainly he has given no evidence to support such a characterization.

It is equally possible that in the Vatican they don’t quite see the value of what Wills (and his many compatriot ‘interests’) is seeking; or they don’t know if ‘revolution’ as practiced in America these past Biblical 40 years is a prudent way to go; or they realize that with the exception of the declining West the current Church structure (of which abuse is not an officially-approved component part) is doing rather well in the world; or perhaps they see what happened to the music when Protestantism deprived the orchestra of a conductor and a score and yet claimed that every player could play the music s/he sorta felt was best – and how THAT has worked out for ‘the people of God’.

There are many possibilities here – and Wills’s efforts to move the herd down the one path he favors smacks of manipulation.

“The reaction of the hierarchy has been to dig itself even deeper into the past”. Surely, an institution that has survived for twenty-one centuries is going to have a sense of its past. And by the same token, is going to be a little leery of those who suddenly insist that that entire ‘past’ has been nothing but an oppressive and malicious conspiracy.

The stampede game-plan worked with the vote-addled Democrats over here 40 years ago, and contributed to the deformative morphing of both Parties into the treacherous blob that the Beltway now is.

But it hasn’t worked with the Vatican and the Papacy. Which, I think, is gall and wormwood to the cadres and drives them to frenzy – and hence, partially at least, the sustained nature of this ‘crisis’ over a quarter of a century.

This is a matter not only of interest to Catholics but to Americans. Because the dynamics involved here are deeply corrosive of a deliberative politics and the Constitutional ethos.

NOTES

*I have mentioned in a prior Post the statement of one Wendy Murphy, law professor and expert on ‘victim law’, who recently burbled that she was happy that a victim would not be denied ‘justice’ merely because of a lack of evidence. I am currently researching a far weightier expression of that principle by Martha Nussbaum, a top-tier philosopher of feminism, who gives clear voice to the basic feminist assertion that trials are not to establish the existence of a crime so much as to ‘provide justice’ to the (already believed) ‘victim’.

Thus, in her and feminist law’s vision, it is the outcome of the trial (punishing the already-presumed perpetrator) that must be the focus of expectation, rather than the process of ascertaining whether the defendant was indeed a perpetrator at all. In this scheme, the mere existence of the ‘victim’ is proof-positive that the crime was committed; the courts are simply there to provide official certification of that fact by deploying the sovereign police power of the state to punish the perpetrator-defendant and bring about (pick one or several: ‘justice’, ‘acknowledgement’, ‘closure’, ‘retribution’, revenge, prevention of further victimization).

Once you look at its core dynamics, it’s hard to distinguish the fundaments of ‘feminist’ and ‘victim’ law from the ‘revolutionary justice’ and ‘show trials’ of the Stalinist or Maoist or Hitlerite regimes, to name but a few more recent examples. And you don’t have to be a Pope-defender to see that either.

**In that regard, for that matter, the Church has never sent out the type of flyer to its agents that the USAAF sent to its bomber pilots during the fire-bombing campaign of Japanese cities: “for us, there are no civilians”. Nor have any priests or Church agents ever been assured, as American troops now report they were assured, that ‘command’ will ‘cover them’ if they kill civilians in the course of their actions. Thus, there has never been a Church document advising priests that it was ‘open season’ on children and they would be ‘covered’ by the Vatican if children (or anybody of any age) were sexually abused or raped in the course of ministry.

THE FAILURES OF MEGAN'S LAW

You may recall Lewis Carroll’s line from – soooo appropriately – “Through the Looking Glass”: “The time has come, the Walrus said, to speak of many things – of shoes and ships and sealing wax, of cabbages and kings …”.

We have two articles – one on the fine Sex Offender Research site (‘Megan’s Law doesn’t work’, dated 5-2-10) and one on the equally fine Constitutional Fights site (“Breaking Down Megan’s Law from a Constitutional and Effectiveness Standpoint”, dated November 9, 2009) – that take a tire-kicking look at Megan’s Law.

If you don’t recall them, you may want to glance at my series of Posts from last August-September on the New Jersey Poritz case of 1995, where the New Jersey Supreme Court, under a far too ‘optimistic’ Chief Justice, tried to put a Constitutional foundation under the original Megan’s Law.

All the now-familiar scams were put forth as the very cutting edge of legal thought, legislative policy, and Constitutional play-doh jurisprudence: it wasn’t a violation of the Retroactivity and Ex Post Facto Clauses of the Constitution; it was merely ‘administrative’ and ‘regulatory’ and neither ‘punitive’ nor ‘criminal’; it was necessitated by the extremely high recidivism rates of ‘sex offenders’ generally and universally; it was going to give law enforcement a fine tool; it was going to ‘inform’ citizens so they could take whatever action they thought necessary; and it was soooo negative to imagine that either the public (laboring under the whipped-up emotions of the grossly inaccurate Legislative ‘Findings’) or the legislators themselves would get carried away and start sliding into the Dark Side.

Well, now there is a major study – commissioned by and conducted with the assistance of that State’s Department of Corrections’ Office of Policy and Planning – and the study concluded that Megan’s Law “struck out on every important area related to protecting the community from sexual offenders” and “has no demonstrable effect in reducing sexual re-offenses”.

I can’t help but thinking of the recent attempt by New York US Senator Schumer and New York US Representative King to secure federal funding for the ad-hoc advocacy organization that developed to further the matter AND authority for that organization to be given authority to troll the NCIC FBI database for ‘sex offenders’: did they know that the Report was coming out and thus wanted to ensure that they’d still have funding and the authority to do ‘whatever it takes’ to ‘keep up the numbers’?

You wouldn’t, perhaps, think that ‘advocacies’ would operate like Pentagon program-administrators and defense-contractors, but – (may I?) Wake Up, America! – that’s how things go when you get into the Federal and Beltway racket.

It’s a form of racketeering, really – although politely and urgently fronted by the ‘emergency’ (which doesn’t, it turns out, really exist, but – hey – can you say Iraq War and Sadaam’s WMDs?).

And anyway, they’d all hope that by now We would just accept SORNA in any and all of its mutations as ‘the new normal’ and ‘not look back’.

Phooey.

Ike warned about all of this in his Farewell Address of January, 1961, speaking of the then-new military-industrial complex: there was a conjunction – new to American experience – between “an immense military establishment and “a large arms industry” and that consequently “the potential for a disastrous rise of misplaced [and misused] power exists and will exist”. In 2007 Sen. James Webb (D-VA), speaking on the same subject, noted that there “is a natural tendency toward corporate excess” and that this is “a national problem”.

I’d like to propose that these assorted Issue-Advocacies have now morphed into a domestic equivalent of the military-industrial-congressional complex. They will find as many problems as there is money to ‘fix’ them. Just like if you take your car to a strange mechanic and ask him to see if there’s anything that needs to be fixed and that the expense doesn’t matter: by the time he gets through listing the ‘repairs’ you’ll wonder how the thing ever kept running in the first place.

Megan’s Law “fails to positively impact sex offender re-arrest rates; fails to change the type of re-offenses or first time offenses that occur; or fails to reduce the number of victims involved in sexual offenses”.

You’d like to think that this evidence of the fundamental lack of conceptual and achievement integrity alone would give officialdom and the advocates pause.

But no. The Report falls back – understandably, alas – on a different justification for re-thinking the whole thing: “given the lack of demonstrable effect of Megan’s Law on sexual offenses, the growing costs may not be justifiable”.

It’s not a great reason to get this thing ‘revisited’ – as they like to say in Pentagon circles – but it’s a good one.

After living through the Cold War ‘bomber gap’ (the Commies have more intercontinental bombers than we do and they could be here any day now), the ‘missile gap’ (the Commies have more missiles than we do and they could be landing here in half an hour anytime now), and before that the ‘Red Scare’ (there are Commies living among us, looking like normal Americans and they are eating away our democracy from within) … after all that, I got the same feeling as the Sex Offense Mania got started using the same scare-tactics.

After a while it became known that the Soviets never matched us in bombers or A-bombs or missiles, but by then public attention had already been ‘moved on’ (yes, used here as a transitive verb, in acknowledgement of the Beltway’s increasingly sophisticated and frequent use of Goebbelsian and Soviet and Maoist agitprop methods to manipulate public opinion).

And after the clear ‘success’ of the Sex Offense Mania there came the above-mentioned rush to invade Iraq – ruled by an unlovely man indeed, but still a sovereign nation, and a ‘secular’ one that had utterly no love for fundamentalist Islamic shenanigans.

But why look back?

Well, for three reasons.

One, because the whole thing has been a stunning miscarriage not only of justice but of legislative and jurisprudential power (and, hardly less urgently, integrity).

Two, because the whole thing is – in the Report’s words – not only a failure, but also “counterproductive to public safety”. As if a Constitutional corrosion and corruption, in which the police power – as deployed by legislatures and courts – breaks the Constitutional bonds so wisely and necessarily devised for it, does not of itself create a huge threat to the Citizenry and actually make ‘victims’ of the entire Citizenry and of The People.

Three, because the whole thing is still very much active, continuing its corrosive and corruptive effects. And not only against ‘sex offenders’ but against the entire People and against the Constitutional ethos. Although the Beltway, taking its cue from Left even before the Bush-Cheney Right, considers the Constitution “quaint”, outdated, and outmoded. (And – speaking of outrageous crimes – aren’t these legislators, judges, prosecutors, and law enforcement types bound by Oath to uphold that same Constitution?)

We are in a heepa trubble.

As further evidence of just how much this entire Mania is driven not by facts but by ulterior motives and ideology, the advocacies supporting Megan’s Law now claim – against the very text of the Poritz Opinion, that the whole thing was “never meant to reduce re-offense rates” but rather was merely “designed to provide parents and communities with information” as to the whereabouts of sex-offenders (by definition lumped together, for tactical purposes, as if they were one huge child-raping, kidnapping, and murdering organization).*

Yet, as the Poritz Opinion pointed out and the State legislators clearly stated, the justifying objective of the whole thing was to “reduce the danger of recidivism posed by sex offenders”.

If the advocates are now to be taken at their word, then We are confronted with this: for the mere purpose of informing the public, a hugely Constitutionally dangerous precedent was set 15 years ago – and We have now seen 15 solid years worth of increasingly dark intensification.

This is like the Navy claiming that while its latest carriers can't actually launch and recover aircraft, they were really just meant to 'send a message' to anybody who saw them sailing along in all their ponderous glory out there offshore. All that money just to 'send a message'?

Worse, it appears now that legislators and most judges feel powerless to put the brakes on it; the evil genie of ‘public outrage’ and ‘pain’, which they let out of the bottle back in 1995, has now proven so potent that re-election prospects (the true – alas – motivator of the political and increasingly the judicial class) are put at risk by any effort to take a principled or even a prudential stand.

Perhaps a ‘fiscal’ stand might work: it’s just too expensive in light of the ineffectiveness and even more so because it’s actually decreasing public safety.

But that presumes that ‘public safety’ was the original real motive for the whole SORNA regime.

And that may not be true.

Perhaps, just as in the early Cold War the government had to “scare the hell out of the American people” (as Harry Truman was told by senior security advisers) in order to get them to accept the new National Security State evolving in the postwar years, the SORNA regime was actually the gambit that would prepare the American people to accept the National Nanny State.

So that to accept any actual facts and evidence that the Megan’s Law doesn’t work or actually works to the detriment of the public and The People would be to pull the rug out of not only the SORNA regime but the whole National Nanny State enterprise.

Just like, if back then anybody had published the actual bomber or missile comparison figures between the US and the USSR, the rug would have been pulled out of the public stampede supporting the National Security State.

And which Party would want to risk its electoral viability by being called ‘soft on defense’ or – in the Nanny State scenario – ‘insensitive to victims’?

So the pols and the two Parties themselves became locked into a nose-dive that finally became a tailspin, unable to pull up and out of the awful course which they had taken.

But back then there was a bottomless supply of cash: the Goose that laid the Golden Eggs (dollars) seemed ready to go on pumping out those great eggies forever, so who cared? Who really had to care? As long as the cash flowed, it would create a lubricant that would seal-over whatever cracks in the circulatory systems of the engine might develop from all the dangerous strain. A new way of seeing Money as Oil.

But that was then.

Now the Goose is dead. Deconstructed, outsourced, or call it what you will.

And for urbanized and suburbanized generations that were raised on TV and didn’t pay enough attention to the old-school fairy-tales (have you ever really read the dark world of the Brothers Grimm?) it comes as ‘news’ that a dead Goose doesn’t continue producing Eggs. Who knew?

Now We know.

And clearly the States know – which is why Obama had to pander to his ‘bases’ by promising that Congress would print up ‘money’ to help cover the costs of the Adam Walsh Act.

This is a game that can’t succeed in the long run. Not just in the matter of the SORNA regime, but in terms of the national economy.

I think it was Larry Summers who said recently that it’s hard to see how the world’s largest debtor is going to remain the world’s most influential nation.

If he’s right – and that’s hardly a stretch – then We have some mighty serious and very real problems ahead of Us. And the rather seriously illusional (not to say delusional) problems of rampaging hordes of slavering stranger-sex offenders (who, yet, are sooo able to ‘pass for normal’ – like vampires in the B-movies) must yield priority to grievously fundamental problems of national economic viability (and survival, not to put too fine a point on it).

As developmental psychologists would say (about boys, at least): there comes a time for the individual to realize that masturbatory fantasies do not and cannot constitute a mature and efficacious life plan.

If there were developmental psychologists for nations, then I think they’d say: there comes a time for a government to realize that sex-offender fantasies do not and cannot constitute a mature and efficacious national legislative policy.

The government needs some serious maturational therapy. It’s come to that.

NOTES

*I can’t help thinking of Ahmed Chalabi: you may recall him as the ‘source’ of all the dreck about Iraq’s WMDs. When, after the invasion had taken place (but before it all began to go as far south as it now has), he was confronted with the irrefutable indicators that his information was at the very least wrong if not actually a tissue of manipulative lies, he looked pained at such hurtful and hateful thoughts and said of himself, his supporters in the Beltway, and just about all of Us upon whose authority the invasion was carried out: “we are heroes in error”.

To which I only respond: Phooey, baloney, and frak.

Can you expect that the backers and supporters and official enablers of the Sex Offender Mania are going to be claiming that in the not-so-distant future? Stay tuned!

AWAY FOR A WEEK

I'll be away from things for a week starting Wednesday, May 5th. I shall return, as they say.

SHORTEST DISSENT I’VE EVER SEEN

I’d like to make a short Post here just to point out what must be one of the shortest Dissents in American legal history.

The Opinion in the case, “Gildersleeve v. Ohio”, is here. The Court is the 8th Appellate District of Ohio.

The Dissent is two sentences long and appears as Para. 89, on page 32 (in the Adobe browser format) of the 33-page Opinion.

As so often, the case is about whether SO’s classified prior to the State’s legislation attempting to bring its Sex Offense regime into compliance with the Adam Walsh Act can simply be re-classified without further ado (which of course will most likely mean being classified upward).

The Plaintiff/Appellants posit 9 Assignments of Error. The first is our old friend, Ex Post Facto and the second is our old friend Retroactivity: thus that to apply AWA to previously adjudicated and assigned SOs violates those two Clauses in both the State and US Constitutions.

The Court for the most part disagrees with them. Certainly, it disagrees with Assignments 1 and 2.

It has to, because if you grant that the AWA violates Ex Post Facto and Retroactivity then it has to be ‘punitive’ and not ‘regulatory’, ‘criminal’ and not ‘civil’ and then the whole regime collapses in an unconstitutional heap.

That’s been true ever since the get-go, and surely in the 1995 Poritz Opinion whereby New Jersey’s top court tried to create some semblance of constitutionality for sex-offense legislation regimes. I did a series of Posts on this site last summer in the matter of Poritz.

I’ve always hoped that courts would have the nerve to stab this monstrous thing right in the heart and call it unconstitutional at its very core; surely any ‘registration’ beyond confidential police files is punitive, and Notification is nothing more than an electronic age version of the Colored-Star system of that unhappy 12-year-hoped-to-be-thousand-year German government of the middle of the last century.

Not yet.

But Ohio’s Supreme Court Justices (individually; they have never managed to gain a majority in any particular case) have been moving along the ‘evolutionary’ path toward unconstitutionality: that while the SO legislation is not and never has been at its core unconstitutional, yet by the intensification of requirements increasingly placed upon SOs over the years it has now ‘evolved’ beyond a tipping-point into unconstitutionality.

The 8thAppellate is not going to rock the boat and most often in this Opinion declares itself bound by precedent and the State Supreme Court’s Opinions; curiously, it raises that ‘defense’ so often that you almost wonder if they’re not trying to say that they don’t necessarily like the SO regime, but they have no choice (and – is this possible? – that maybe the Ohio public should step in to help out here by reining in their legislators).

Anyhoo, one Justice dissents. And it’s two sentences long. One sentence announces his dissent. The second sentence , in which he cites a similar Opinion from which he had Dissented, is quick and to the point: “I would sustain the first and second assignments of error, which would make the remaining assignments moot”. And that’s it.

In other words, he DOES think that the State version of AWA violates both the Ex Post Facto and Retroactivity Clauses of the State and US Constitutions, which hits the thing right between the eyes and the rest of the assignments are thereby immediately rendered unnecessary because the law has now been effectively killed.

Well, as so often in these things, we find dissent that is honest and - given the conditions of a Mania – courageous.

And it appears – as defense attorney Norm Pattis has said – that there are actually a lot of judges at various levels who think this whole thing has gone beyond the pale.

But lots of judges probably realized that in Germany 70 years ago. Yet so many remained silent and took a quiet but no less dark, path.