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October 09, 2012

An Election About Feelings

There is a tide in the affairs of men.
Which, taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries.

On such a full sea are we now afloat,
And we must take the current when it serves,
Or lose our ventures.

- Brutus, Julius Caesar Act 4, scene 3

What a very odd election this is. Just a few weeks ago, the sudden tide that now lifts Mitt Romney's boat was ebbing fast.

According to the polls, Barack Obama held a commanding lead in every swing state. Peggy Noonan was in full on hyperventilation mode. The Republican campaign was a "rolling calamity" led by an utter "incompetent" (and that was putting it kindly, said Ms. Noonan). Debates, we were knowingly assured, "never change anything" and the press were already spiking the football on the front pages of every major newspaper.

Who could have forseen that a wimpy, awkward loser who barely - we were assured by righty pundits - made it out of the primaries alive would land a knockout punch on the glass jaw of the greatest communicator since The Gipper? Certainly not the wise souls who, mere weeks ago, snottily asked "Whose idea was it to nominate this guy, anyway?".

Translation: "Why, oh why can't We, The Cognitive Elite bypass the electorate?" Things would be so much simpler that way. If a candidate could win a presidential election by consensus and public acclaimation, Barack Obama would already be settling in for another four years and we superfluous peasants could go back to doing what we do best: waiting to be told what we really think and feel by our More Evolved brethren in Christ.

But it didn't happen that way. In the space of a few short hours the conventional wisdom on both sides was thoroughly and convincingly trounced by rude reality. That should worry us, a bit. It should worry us a lot, because public opinion should not change so swiftly and dramatically; at least on such flimsy grounds.

It should disturb us because of what it implies about us: the pesky electorate. It implies that we are guided by emotion, not reason; that our opinions and convictions are not grounded in anything substantial. That we are no longer understand the rules that produced the world we live in:

Imagine a kindergarten with 100 students, lavishly supplied with books, crayons and toys. Yet you gasp: one avaricious little boy is jealously guarding a mountain of toys for himself. A handful of other children are quietly playing with a few toys each, while 90 of the children are looking on forlornly — empty-handed.

The one greedy boy has hoarded more toys than all those 90 children put together!

“What’s going on?” you ask. “Let’s learn to share! One child shouldn’t hog everything for himself!”

The greedy little boy looks at you, indignant. “Do you believe in redistribution?” he asks suspiciously, his lips curling in contempt. “I don’t want to share. This is America!”

And then he summons his private security firm and has you dragged off the premises. Well, maybe not, but you get the point.

Now it may shock the assembled villainry, but we actually agree with Mr. Kristof here: that greedly little boy should be made to share his pile of toys. He should be made to share them, because they never belonged to him in the first place. You see, the missing piece in Mr. Kristof's deeply dishonest hypothetical is the notion of property rights.

The toys in his scenario would not belong to the little rich boy. They would belong to the school. They would have been purchased by the school for use by all students.

We're fairly confident that Mr. Kristof is familiar with the concept of property rights. They are, after all, what make it possible for him to keep the salary he earns writing for the NY Times. They are what make it possible for him to "own" (though how he can do so in good conscience when so many live in so much humbler dwellings) his big, fancy house and the cars he drives. We're also fairly confident that, if he were asked tomorrow to give up half of everything he owns in the name of "fairness", his answer would be not just "no", but "hell, no":

Warning! Never suggest a grand gesture to an idealistic teenager. Hannah seized upon the idea of selling the luxurious family home and donating half the proceeds to charity, while using the other half to buy a more modest replacement home.

Eventually, that’s what the family did. The project — crazy, impetuous and utterly inspiring — is chronicled in a book by father and daughter scheduled to be published next month: “The Power of Half.” It’s a book that, frankly, I’d be nervous about leaving around where my own teenage kids might find it. An impressionable child reads this, and the next thing you know your whole family is out on the street.

No, he'd never do such a thing himself, but he sure likes the sound of it. He likes writing about altruism and fairness - after all, there's a certain selfish pleasure to selflessness.

In the abstract, that is.

How important is fairness, really, to folks like Nick Kristof? One suspects their commitment to fairness stops where it begins to impact their self interest. Would Kristof, a Harvard grad, be willing to send his children to a lesser-known school and donate the saved tuition dollars to one or more needy student? Would he donate his not-inconsiderable salary to charity and live simply, as befits the enlightened (for whom personal property only erodes the natural spirit of communal benevolence we are born with)?

One of the very first lessons small children are taught is not that everything belongs to them, but that they have to respect other people's property rights. "MINE!" is one of the first words toddlers learn, and they use it (often at great volume). But not everything *is* theirs: as they grow up, they will attend birthday parties at which other children will be given gifts and they will get nothing.

They will have little brothers and sisters, with whom they will need to learn to share parental attention and family resources, and they will have to learn that no one has the right to take the property of another without giving something of value in return. If they are lucky, they will also learn the value of respect and reciprocity:

Ever seen two children quarreling over a toy? Such squabbles had been commonplace in Katherine Hussman Klemp’s household. But in the Sesame Street Parent’s Guide she tells how she created peace in her family of eight children by assigning property rights to toys.

As a young mother, Klemp often brought home games and toys from garage sales. “I rarely matched a particular item with a particular child,” she says. “Upon reflection, I could see how the fuzziness of ownership easily led to arguments. If everything belonged to everyone, then each child felt he had a right to use anything.”

To solve the problem, Klemp introduced two simple rules: First, never bring anything into the house without assigning clear ownership to one child. The owner has ultimate authority over the use of the property. Second, the owner is not required to share. Before the rules were in place, Klemp recalls, “I suspected that much of the drama often centered less on who got the item in dispute and more on whom Mom would side with.” Now, property rights, not parents, settle the arguments.

Instead of teaching selfishness, the introduction of property rights actually promoted sharing. The children were secure in their ownership and knew they could always get their toys back. Adds Klemp, “‘Sharing’ raised their self-esteem to see themselves as generous persons.”

Not only do her children value their own property rights, but also they extend that respect to the property of others. “Rarely do our children use each other’s things without asking first, and they respect a ‘No’ when they get one. Best of all, when someone who has every right to say ‘No’ to a request says ‘Yes,’ the borrower sees the gift for what it is and says ‘Thanks’ more often than not,” says Klemp.

Reciprocity and respect for the rights of others cannot thrive under a system that forcibly takes from one person and gives to another. And they cannot thrive under a system of government that depends on people to act in ways that manifestly contradict reality.

We are losing sight of the fundamental insights our world was built upon, and so we look to strong men to guarantee our security. As much as I'd like to believe that dramatic swing in the polls was based on the cogent clarity of conservative ideas, I can't quite manage it. It was based on the perception of weakness (a weakness formerly imputed to the Republican nominee) and strength.

We no longer entirely trust to the rule of law to protect us because men like Nick Kristof are doing everything in their power to erode respect for and understanding of the law. In its stead, they want us to rely on feelings.

And that is a recipe for decline and disaster.

Posted by Cassandra at October 9, 2012 06:43 AM

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Comments

I loved the story about the toddlers and property rights. Each generation finds out all over again that you can diminish violence by increasing clarity and security, and that you can increase prosperity by strengthening the connection between effort and reward.

As you might guess, I agree 100% about the importance of reciprocity. A culture is worth living in when its members have to get each others' consent for nearly everything, and when consent is overridden only to stop fraud, theft, violence, and preying on children and the disabled. Reciprocity is the principle that two people have to work things out on mutually agreeable terms, not just on the terms that suit one of them. That means love and persuasion are the useful toolkit for most encounters, not coercion. Coercion should be like surgery: a last resort in an emergency.

Posted by: Texan99 at October 9, 2012 10:08 AM

Feelings

Nothing more than ...Feelings

Feelings of complete disaster

And abject failure,

Feelings

Nothing more than...Feelings

Posted by: Don Brouhaha at October 9, 2012 10:23 AM

I started out encouraging my oldest to share, but I didn't force him to unless he was in the wrong (i.e., he had grabbed a toy from another child).

By the time his little brother came along, I had figured out that if I wanted him to learn respect for other children's rights, he needed to believe that I would apply the same set of rules (protect his property against the Evil Encroachments of his odious baby brother). So it was very much a mixture of, "Your little brother is too young to understand that truck belongs to you. When he's a little older, we'll teach him but for now, can you think of a way to get him to give it to you? How about offering him that other truck you don't want to play with right now?"

I also remember teaching both boys that no one wants to play with someone who won't let them have a turn. That's very hard for little boys - they really have a tough time giving up control, but both my boys learned to cooperate long before the kids whose Moms made them "be nice".

It makes sense in a way - if you feel secure that your rights are respected, you're less likely to feel threatened because you trust "the system" to be fair.

Posted by: Cassandra at October 9, 2012 10:24 AM

"We no longer entirely trust to the rule of law to protect us because men like [Barry and his ilk](sic) are doing everything in their power to erode respect for and understanding of the law."

There, FIFY.
Trust is relative. One must earn respect before trust can be gained. I've said this to you in private before, but it bears repeating: What good does it do for parents to teach their children that our laws apply to everyone equally when they see the Leader of the Free World, his entourage and sycophants flout, ignore and circumvent our laws any and everytime it suits their agenda?

Posted by: DL Sly at October 9, 2012 10:35 AM

The toys in his scenario would not belong to the little rich boy. They would belong to the school.

A small aside: you (and Kristof, although it's his construct, maybe he just built it with lack of thought and clarity. Or maybe he built it deliberately vague, leaving "ownership" a matter of convenient assumption--as government often does, and then bends to its own purpose) are assuming facts not in evidence. One boy, not avaricious at all, may well have disdained the school's supply of toys and brought his own, this being the "mountain" that he was protecting. Nor is this a far-fetched supposition. In the two grade schools which I attended, nor I nor my classmates were rich--in fact we were quite poor by contemporary monetary standards. Yet we preferentially brought our own toys to play with; the schools' supplies, while of generous quantity, lacked that certain something that only little boys and girls can understand and which, surprisingly often, is mostly to be found in their own toys.

And this: Reciprocity is the principle that two people have to work things out on mutually agreeable terms.... as T99 notes. Reciprocity, like each of our rights and associated duties (is reciprocity a duty or a bargain?), is an individual thing. When it is imposed, whether by one with the strength to force terms that suit one of them or by government, it ceases to be reciprocity and becomes theft. Which you noted, also, in the end.

One more small aside, this one from Kristof's article: Likewise, the Institute for Policy Studies in Washington estimates that four major tax breaks that encourage excessive corporate pay cost taxpayers $14.4 billion last year.

No, it didn't. Leaving aside the utility of those particular tax breaks, they cost the government not a red cent. There is no cost at all for the government to not receive that which doesn't belong to it in the first place.

Eric Hines

Posted by: E Hines at October 9, 2012 10:46 AM

you (and Kristof, although it's his construct, maybe he just built it with lack of thought and clarity. Or maybe he built it deliberately vague, leaving "ownership" a matter of convenient assumption--as government often does, and then bends to its own purpose) are assuming facts not in evidence. One boy, not avaricious at all, may well have disdained the school's supply of toys and brought his own, this being the "mountain" that he was protecting.

FWIW, I've never seen a school that allows kids to bring their own toys. I attended a different school pretty much every year of my K-12 and none of them let kids bring toys to school. In fact, the schools I attended (both public and private) routinely confiscated any toys we brought to class.

So I'm guessing your experience was different than the norm.

I will admit to being more than a bit amused at the hypothetical of a teacher having to adjudicate disputes between a class of 100 children, all of whom are allowed to bring as many toys as they want to school :p

Doesn't seem terribly practical.

Posted by: Cassandra at October 9, 2012 11:03 AM

There is no cost at all for the government to not receive that which doesn't belong to it in the first place.

Eric, you selfish and avaricious slut :p

Don't you know that government is the source of all good things? And what the government can give, the government can take away...

/running for the barricades

Posted by: Cassandra at October 9, 2012 11:07 AM

Trust is relative. One must earn respect before trust can be gained. I've said this to you in private before, but it bears repeating: What good does it do for parents to teach their children that our laws apply to everyone equally when they see the Leader of the Free World, his entourage and sycophants flout, ignore and circumvent our laws any and everytime it suits their agenda?

I think there's another good point here: normally, individuals decide who it's safe to trust and who isn't safe to trust. My big problem with the Left is that they seem to believe this kind of discrimination (i.e., choice) is a *bad* thing - we must trust everyone equally, even if they don't share our values or culture. Even if they play by a completely different set of rules (therefore making it extremely difficult to predict how they'll behave).

They want to shame us into pretending there are no differences between cultures or people - that everyone deserves our trust ... and part of our earnings, if they have less than we do (the reason doesn't seem to matter).

That's not just dangerous - it's suicidal.

Posted by: Cassandra at October 9, 2012 11:10 AM

[T]he schools I attended (both public and private) routinely confiscated any toys we brought to class.

Well, I can't speak to your hoity-toity private schools; my family couldn't afford one of those in my K-12 years. But in my po' public schools, the toys were allowed, just not in class--only in recess. We didn't even do the schools' toys during class. [g]

...amused at the hypothetical of a teacher having to adjudicate disputes between a class of 100 children....

I don't know. Some of my high school classmates went to Big U, and the freshman lecture halls often had 100...pupils...in these intro classes. I submit there's not a lot of difference between these worthies and their hapless professor and Kristof's grade school worthies and their hapless teacher.

Eric Hines

Posted by: E Hines at October 9, 2012 01:08 PM

FWIW, I only went to private school my last two years of HS :)

My sons probably had more private than public schooling: a mix of parochial schools, private schools, and home school.

I was thinking of my oldest GrandPunk's pre-K classroom - they had toys, but they didn't allow children to bring their own. As a matter of fact, parents aren't even allowed to bake home-made treats for class parties.

Everything has to be store-bought. Change.

Posted by: Cassandra at October 9, 2012 01:59 PM

We are losing sight of the fundamental insights our world was built upon, and so we look to strong men to guarantee our security.

In fairness, the need for strong men to guarantee security is one of the fundamental insights our world is built upon. There's a reason that, as long as America has been a great power and a significant influence on the world, she's had a strong navy and Marine Corps. The ability to punish those who would otherwise harm us is a crucial precondition for a society stable enough for the rule of law.

Power projection isn't, necessarily, such a precondition: it's been our mode, but not (say) Switzerland's mode. Yet both nations have built safety and stability on strength: even the Nazis at the height of their power didn't care to try to fight their way into the Swiss Alps. They remained free because they were strong.

Posted by: Grim at October 9, 2012 02:05 PM

... parents aren't even allowed to bake home-made treats for class parties. Everything has to be store-bought.

Yeah--all those evil, cancer-causing preservatives are better for the little...tykes...than evil Mom's fatty, sugary cooking. Because We Know Better.

Change, but no hope.

Eric Hines

Posted by: E Hines at October 9, 2012 02:07 PM

Which is why, e.g., we ought to be worried about the combination of the dissolution of the rule of law (led, ironically, by the Justice Department in several cases) with the sequestration anti-budget.

STRATFOR has been reporting that the CIA has actually taken sides in the cartel wars just south of the border. Their source are leaked emails from a US diplomat in Mexico.

That's an interesting claim, taken together with the weakening of the Border Patrol's capacity to resist smuggling (human and drug), but especially with the 'gunwalking' programs that (unlike the Bush-era ones) did not include any way of tracking the guns. If we were using an alleged Justice Department program to ship military-grade arms to a favored cartel, that would explain what is otherwise a very difficult-to-understand decision.

Posted by: Grim at October 9, 2012 02:12 PM

You don't think that CIA actually talks to--much less coordinates with any "Justice" Department agency do you?

Posted by: CAPT Mongo at October 9, 2012 04:23 PM

In fairness, the need for strong men to guarantee security is one of the fundamental insights our world is built upon. There's a reason that, as long as America has been a great power and a significant influence on the world, she's had a strong navy and Marine Corps. The ability to punish those who would otherwise harm us is a crucial precondition for a society stable enough for the rule of law.

In one sense, I agree. In another, the main benefit of the rule of law is that we have a system that allows us to resolve disputes and enforce rights *without* resorting to force.

So, to use the example you used to raise, I have some recourse even if I don't have brothers, father, husband or sons who are willing to fight for me.

That's huge. And very precious.

Posted by: Cass, Now With 25% More Nattitude! at October 9, 2012 05:21 PM

Just to be clear, I'm not arguing that force is never needed. If it weren't, we wouldn't need police and jails.

But it is truly remarkable, the degree to which the rule of law here in America allows us to go about our business, secure in the knowledge that our system is pretty fair and doesn't depend on being able to bring a gun to the table.

Posted by: Cass, Now With 25% More Nattitude! at October 9, 2012 05:23 PM

. . . at least it doesn't require us to bring a gun to the table in the first instance, while things are working as they should. Normally, the knowledge that the system will back up a victim of fraud or injustice is enough to keep those with mediocre ethics from pushing it. For the hopeless cases, there's shunning (or other discipline) by polite society and, if necessary, the police. For people with their own ethics, there's no need for either. It's the latter group who go about their business treating each other with respect and getting consent. They are always, thank Heaven, in the majority, as they must be for society to work. There aren't enough police or white knights in the world to whip the bad guys into shape if they become too common.

Posted by: Texan99 at October 9, 2012 06:49 PM

Actually, a large shift from a small event may just be the proverbial back-breaking straw.

As to Fast and Furious, it never made any sense unless someone wanted to support a cartel. I'd always assumed bribery or coercion was involved, though.

Posted by: Tom at October 9, 2012 10:37 PM

In one sense, I agree. In another, the main benefit of the rule of law is that we have a system that allows us to resolve disputes and enforce rights *without* resorting to force.

We've had this discussion many times before, but I don't actually agree with that. Resorting to the law is resorting to force: whether it's fines (i.e., forcible seizure of your property), awards of damages enforced by the courts, or actual physical arrest by armed men and imprisonment in chains, all these things involve quite significant force.

What we hope will be the case is that the threat of force is adequate, so that people will more-or-less behave without us needing the force to be employed. That's what the Swiss have generally relied upon, successfully; but the model is still force-based.

The real benefit to you is that you don't need to have a husband or sons because there's a professional force that is assigned to the task. However, the drawback is that if that force becomes corrupted, it will be very hard for ordinary families' husbands and sons to stand up to it. That is why the corruption issues are so worrisome: the state that can enforce its laws employs such a concentration of force that it is a deadly danger if it turns on the civilization it is supposed to protect.

Posted by: Grim at October 9, 2012 11:20 PM

As much as I'd like to believe that dramatic swing in the polls was based on the cogent clarity of conservative ideas, I can't quite manage it.

To change topics a bit, I think the premise is wrong. For this statement, one must first assume the polls accurately reflect reality. Figures don't lie, but liars do figure.

Posted by: Yu-Ain Gonnano at October 10, 2012 12:13 AM

Resorting to the law is resorting to force: whether it's fines (i.e., forcible seizure of your property), awards of damages enforced by the courts, or actual physical arrest by armed men and imprisonment in chains, all these things involve quite significant force. What we hope will be the case is that the threat of force is adequate, so that people will more-or-less behave without us needing the force to be employed. That's what the Swiss have generally relied upon, successfully; but the model is still force-based.

Unsurprisingly, I don't agree. It is only force-based for a very small part of the population: those who will only restrain themselves by threat of force. The majority of people are law abiding and need no threat of force to make them obey the law. It is not the threat of force that makes me obey the law - it is tacit recognition of my obligations under the social contract.

What laws accomplish is a kind of formalization of society's mores. Simply passing a law, for a great many people, establishes in their minds that "this is what my state/community/society says is right or wrong". That may or may not conform to their personal morality, but that's really not the point. Most of us understand that to live in any group of people requires both self restraint and compromise. This is what civilization is all about.

There are numerous examples where changes to the law occurred well in advance of widespread popular consensus on a matter: abortion, desegregation, legalization of homosexual sex. At first there is opposition, but over time people gradually come to accept the new consensus. Pornography is yet another: gutting pornography laws led to wider consumption and acceptance of porn to the extent that kids of 10 or 11 are now exposed to porn and references and knowing jokes about it pervade the popular culture.

Masturbation is no longer even considered something best kept private - we have to discuss it constantly. Self control, once a virtue, is now considered "unnatural", and we have parents openly debating whether they should even try to keep their kids away from porn until they are more mature.

That's a tectonic shift in public morality, and I doubt that's what anyone except the most hard core (pun fully intended) advocates intended.

Back in the 60s, a lifelong Democrat friend of mine related how no one in her Dem neighborhood would be caught dead taking public money (welfare). It was considered morally shameful. Of course, welfare was new then. Now it's considered morally shameful to object to welfare.

Force has nothing to do with any of this - what happened in all these cases was incrementalism.

Posted by: Cass at October 10, 2012 07:33 AM

It is only force-based for a very small part of the population: those who will only restrain themselves by threat of force. The majority of people are law abiding and need no threat of force to make them obey the law. It is not the threat of force that makes me obey the law - it is tacit recognition of my obligations under the social contract.

But what happens if this "contract" is not enforced by any kind of force, whether private or public? Then the small percent who choose to break it will quickly come to dominate. If a thug can steal everything I have, and neither I nor the state will lift a finger to stop him - then everything I have is his; and the world is his mollusk of choice. (And if everyone in my community is too virtuous and well socialized to act that way, never fear - the neighbors from across our unguarded borders will have someone like that.)

So the force is vital for keeping things going - even if, day to day, private morality and social mores are what's restraining most people.

Posted by: Joseph W. at October 10, 2012 09:26 AM

The majority of people are law abiding and need no threat of force to make them obey the law. It is not the threat of force that makes me obey the law - it is tacit recognition of my obligations under the social contract.

I'm not sure this actually applies to Grim's argument. In your (and most people's cases) the courts are not needed. You would behave honorable even in their absence. The entire purpose of the courts is for those "very small part of the population: those who will only restrain themselves by threat of force."

Posted by: Yu-Ain Gonnano at October 10, 2012 09:36 AM

The majority of people are law abiding and need no threat of force to make them obey the law.

This is heavily informed by whose law and whose force. Dependency on government rather than on self (followed by the local community) also is created by law and the force associated. Hence the welfare state, with its growing favorable consensus in the US.

The entire purpose of the courts is for those "very small part of the population: those who will only restrain themselves by threat of force."

No, another purpose of the courts is to settle disputes between two wholly honorable groups who cannot agree on a compromise--so they resort to the courts rather than to a test of arms, with the tacit agreement to abide by the courts' decisions, rather than resorting to arms, anyway.

But when the courts' decisions cannot be accepted by one or the other party (eliding why not), if the still-dissenting party is large enough, the consent that legitimizes government becomes threatened.

Eric Hines

Posted by: E Hines at October 10, 2012 09:49 AM

But what happens if this "contract" is not enforced by any kind of force, whether private or public? Then the small percent who choose to break it will quickly come to dominate. If a thug can steal everything I have, and neither I nor the state will lift a finger to stop him - then everything I have is his; and the world is his mollusk of choice. (And if everyone in my community is too virtuous and well socialized to act that way, never fear - the neighbors from across our unguarded borders will have someone like that.)

I don't disagree, but that wasn't really my point.

I never argued that force was completely unnecessary to the rule of law. In fact, I conceded that it was, up front:

Just to be clear, I'm not arguing that force is never needed. If it weren't, we wouldn't need police and jails. But it is truly remarkable, the degree to which the rule of law here in America allows us to go about our business, secure in the knowledge that our system is pretty fair and doesn't depend on being able to bring a gun to the table.

When the rule of law is strong, the default state is that everyone understands the rules and the consequences for breaking them.

When the rule of law is weak, the default state tends to be that people's understanding of what the rules are differs and the consequences for breaking the rules (however understood) depend on who you're dealing with.

So in many ways, the rule of law is an equalizing force to the extent that people are treated equally under a mostly uniform set of rules.

Posted by: Cassandra at October 10, 2012 10:29 AM

I'm not sure this actually applies to Grim's argument. In your (and most people's cases) the courts are not needed. You would behave honorable even in their absence. The entire purpose of the courts is for those "very small part of the population: those who will only restrain themselves by threat of force."

But what you're not taking into account is that my idea of right conduct is very much influenced by the law. To some extent, laws shape public opinion. They don't exclusively determine it, but they absolutely do shape it because most people don't think terribly deeply about most issues. What is customary gets conflated with what is right/acceptable.

Posted by: Cassandra at October 10, 2012 10:31 AM

...another purpose of the courts is to settle disputes between two wholly honorable groups who cannot agree on a compromise--so they resort to the courts rather than to a test of arms, with the tacit agreement to abide by the courts' decisions, rather than resorting to arms, anyway.

I do agree with this, Eric. Before we had courts, we had neutral arbitors who performed the same function.

Posted by: Cassandra at October 10, 2012 10:33 AM

Perhaps over time.

I can't say that I've ever (or met anyone who had ever) changed my mind about something being right or wrong because it became legal or illegal.

Perhaps children who tend to equate "not allowed" with "wrong" might take that assumption with them into adulthood.

Though, now that I think about it, could that not be considered to be acclimatization to the use/threat of force (spanking, standing in the corner, having a toy taken away, etc). I'll have to think about that some more.

Posted by: Yu-Ain Gonnano at October 10, 2012 10:59 AM

...another purpose of the courts is to settle disputes between two wholly honorable groups who cannot agree on a compromise--so they resort to the courts rather than to a test of arms, with the tacit agreement to abide by the courts' decisions, rather than resorting to arms, anyway.

Though it that capacity, the courts are typically arbitrating private contracts, not enforcing public law. The former is something that can (should?) be done by a private entity.

Posted by: Yu-Ain Gonnano at October 10, 2012 11:04 AM

That said, I do have a hard time seeing NYC banning the Big Gulp™ as anything other than a willingness to stick a gun in the face of a store owner for selling something as dangerous as an oversized paper cup full of sugar water. Even if, 20 years from now no one needs a gun in their face to maintain compliance.

Posted by: Yu-Ain Gonnano at October 10, 2012 11:23 AM

Posted by: Yu-Ain Gonnano at October 10, 2012 11:26 AM

Though it that capacity, the courts are typically arbitrating private contracts, not enforcing public law.

Except when it's a public dispute, like the Texas affirmative action program presently before the Supreme Court. Private entities are ill-suited to arbitrate such disputes.

Personally, I fail to see how any program that discriminates on the basis of race--however diffusely--isn't racist, but there are those who disagree--two of those wholly honorable groups who cannot agree on a compromise agreeing to abide by a court's decision rather than rioting.

Eric Hines

Posted by: E Hines at October 10, 2012 12:10 PM

Well, there's your problem.

I don't consider the one side which advocates for special treatment on the basis of race to be "honorable". Nor do I think they would accept a decision ending such programs absent the threat of force the courts would bring.

Posted by: Yu-Ain Gonnano at October 10, 2012 01:31 PM

I don't consider the one side which advocates for special treatment on the basis of race to be "honorable".

Well, there are those Supreme Court Justices who did exactly that. I think they're as horribly wrong as was the Taney Court, and for much the same reasons, but I don't think they're dishonorable.

Eric Hines

Posted by: E Hines at October 10, 2012 03:37 PM

They still wouldn't change absent the threat of force.

Posted by: Yu-Ain Gonnano at October 10, 2012 04:08 PM

You've picked an interesting set of examples, Cass.

What laws accomplish is a kind of formalization of society's mores. Simply passing a law, for a great many people, establishes in their minds that "this is what my state/community/society says is right or wrong". That may or may not conform to their personal morality, but that's really not the point. Most of us understand that to live in any group of people requires both self restraint and compromise. This is what civilization is all about.

There are numerous examples where changes to the law occurred well in advance of widespread popular consensus on a matter: abortion, desegregation, legalization of homosexual sex.

All of those examples are examples of the judiciary, not the legislature, changing the law. I might buy that the legislature -- as representatives of their constituents -- can sometimes enact laws that formalize the mores of the community.

What your examples point out, however, is the opposite view: not that the law derives legitimacy from the mores of the community, but the use of the law as a weapon against the community to force it to accept values it may find detestable.

We may sometimes (desegregation) agree with the outcomes; but the process you're talking about is fundamentally illegitimate. The law in your examples isn't a legitimate formation of the mores of the community, but a weapon of the powerful against the common. And every one of those cases involves a lot of force: desegregation, for example, caused the 101st Airborne to be deployed against Arkansas.

Posted by: Grim at October 10, 2012 10:56 PM

It should disturb us because of what it implies about us: the pesky electorate. It implies that we are guided by emotion, not reason; that our opinions and convictions are not grounded in anything substantial.
I would argue that if the electorate were guided by reason, Obama wouldn't have a pray of winning. Last week's debate, IMO, showed everyone what Obama really is (and what Romney is not). Obama is Eastwood's empty chair. Romney is a competent executive who has experience in rescuing ailing entities. The contrast could not have been clearer. Reason should recognize the choice between the two men and find the current occupant of the White House lacking...

Posted by: Miss Ladybug at October 10, 2012 11:58 PM

I might buy that the legislature -- as representatives of their constituents -- can sometimes enact laws that formalize the mores of the community.

You *might*? What is it, precisely, that you think legislatures do? Do you honestly see no connection between what society views as wrong/harmful and what is sanctioned by law?

As for judicial review, I don't entirely agree with you. You are fine with judicial review (and even jury nullification that results in a guilty person going free) when you like the outcome. Judges interpret laws when they strike down laws that violate the Constitution, too.

So the process is not fundamentally illegitimate (unless of course you think that citizens should have no legal remedy when legislators pass laws that violate our fundamental Constitutional rights).

Under the common law, which you have cited many times during arguments, judge-made rulings created precedents that became law. Are you suggesting the entire body of common law is illegitimate because it didn't come from a legislature?

Posted by: Cassandra at October 11, 2012 05:16 AM

You *might*? What is it, precisely, that you think legislatures do?

Sometimes what I think they do is pass Obamacare, in the face of robust opposition the public, and even from their usual constituents (e.g., the Massachusetts special election that gave a Republican the Senate seat for the first time in forever). Legislatures can become blinkered by ideology, power, or money; the fact that they are constituted to represent the interests of their constituents does not mean that they really will.

You are fine with judicial review (and even jury nullification that results in a guilty person going free) when you like the outcome. Judges interpret laws when they strike down laws that violate the Constitution, too.

Jury nullification is an act of the people, not the powerful. Judicial review of the sort that protects genuine constitutional rights is in response to a legislated amendment, one that has been ratified not only by the Congress (in a supermajority fashion) but again by the legislatures of a supermajority of the states.

Judicial review that invents new "rights" that somehow manage to overturn the laws in dozens of states around the nation is the sort to which I object. In fact, this distinction ought to be important to you, as well. These kinds of laws are the kind of laws that best represent your concept of what the law should be about: long-accepted traditional mores that have been formalized by the legislature in response to the desire of the largest part of the community.

You and I have the same reason to object to a judge finding a new and unsuspected right that overturns two hundred years' wisdom about what rights are actually protected by the Constitution, especially when such an action goes against the common wisdom and general mores. We both have every reason to object when a court so violates the genuine mores of the people, or when Congress does so -- even if they feel they have to 'pass the law so we can find out what is in it.'

Posted by: Grim at October 11, 2012 10:59 AM

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