See Infra

Digging at the confluence of culture and everything else

Category Archives: Law

Best Interests

A friend linked me to the Judgement of the court in the Alife Evans case. It is an extraordinary piece of writing and done with diligent care. You should read it. For those of you not aware, Alife Evans was a terminally ill toddler, now passed, whose parents wanted to keep him on life support and transported to a Roman hospital for further last ditch treatment. The case is difficult and has affected people profoundly, because at the heart of it lies the key question about how we value life in the face of choice and choice in the face of death.

To many of us, it seems like the question should be simple: if he’s going to die anyway and someone is willing to pay for it, why not just let the parent’s try? What is the cost? Dignity? Alfie’s Guardian ad litem “stated that in her view Alfie’s life now lacks dignity and his best interests can only be met by withdrawing ventilation.” (Paragraph 54). Dignity is a bugaboo that stands in more for the discomfort of the viewer than the suffering of the patient. And so Justice Hayden dispatched that easily. He visited Alfie’s room and seeing him surrounded by loving relatives, gifts from supporters, and dedicated medical professionals found that Alfie lied in “an environment which inherently conveys dignity to Alfie himself. In my judgment his life has true dignity” (Paragraph 56). So no, not dignity.

Yet there was perhaps, a real and horrifying cost. In paragraph 45 Justice Hayden discusses a note given to medical experts by Dr. Hubner claiming that Alfie Evans could be transported to the hospital in Rome. It turns out Dr. Hubner lied to get into the hospital, lied about having read the evidence, and prescribed a treatment plan that was contraindicated by Alfie’s medical history. Justice Hayden was unimpressed:

“I am at a loss to know quite why Dr Hubner fell so far below the standards expected of his profession. I am constrained to say that he has failed the parents, the Court but most importantly, Alfie. Mr Mylonas makes the point that he seemed not to recognise the extent and significance of his shortcomings in his evidence. I agree.”

This is the immediate and real cost of continuing treatment for Alfie Evans that many people, myself included, could not see. A seizure while flying in the hands of incompetent medical care, a painful end, inflicted on a child and those he loves in transit to his last hope.

But Justice Hayden did not rely simply on that, and neither shall we. For this is an argument about what the best interests of a child are and who gets to decide that. Hayden relied in part on guidance from The Royal College of Paediatrics and Child Health quoted in paragraph 46. I have excerpted the salient bits here:

II When life is limited in quality […] the severity of the child’s condition is such that it is difficult or impossible for them to […] enjoy the benefits that continued life brings. […] Even in the absence of demonstrable pain or suffering, continuation of LST may not be in their best interests because it cannot provide overall benefit to them. […] It is important, here as elsewhere, that due account of parental views wishes and preferences is taken and due regard given to the acute clinical situation in the context of the child’s overall situation.

And here we find the crux of the problem. The conflation of best interests with quality of life. Not only quality of life, but the notion you have to prove some positive amount of quality of life, not merely the absence of a threat to it. Quality of life is a tricky thing and we see wildly different understandings of quality of life in children and adults and we should value them all. And one of the ways we do this is by allowing parents to raise their children to seek a high quality life as they understand it. It is a core values question and not one we can ever outsource to professionals, medical or otherwise. So long as the law demands that we assume that the best interests of a child are to expire rather than risk treatment. Justice Hayden made the correct judgement. But the law is wrong to do so. We – as a society and mediated through our laws – allow adults to cling to life, even futilely, even if we think they would be better going gently into the night. We do not dictate when their life is insufficiently qualified to be considered worth living, they do. We do force people to prove an upside to them being alive a bit longer. We should encourage each other to ask these questions – I know I do not want to be the sort who lives just for the sake of not being dead. But that question is the province of the individual.

With a child we let parents make these decisions for them until there is compelling reason to snatch their children away from them. Some point that the parent loses the wide presumption that they stand in for their children’s truest desires and interests. And here we come to the hidden, and most compelling possibility – that Alife’s choice might be to die. Not because his life was not worth living, not just because he might feel pain – but because he loves his parents and wishes to let them move onto healing. And it is a terrifying, unvoiced thought. I do not know if that is what lies behind Hayden’s fears of Alife dying in flight, or continuing on in futility but it would make sense. A vegetative boy cannot be hurt by false hope, but his interests in his family can be. I think Alfie’s parents should have been given deference on this question, but I take comfort in the idea that their son, had he grown to a man, would have been the sort of man who would have let go of his life for his family.

To truly trust in human life is to trust the choices of the beings that live. For choice to be truly meaningful, it must be something other than merely not being dead a moment longer and it also must be something more than living someone else’s understanding of a good life. Sometimes, it means trusting that our children might be better people that we selfishly wish them to be.

A History of Saying “No Thank You” to Immigrants

Our country is engaged in two of her three sacred Thanksgiving traditions: gorging ourselves during a big family meal and ironically displaying unjustified fear of migrants as we remember the first harvest of early European migrants.[1] About this time last year President Obama made a big speech[2] announcing a now-stalled reform of our immigration system and people lost their damn minds about the rule of law and them coming to take our jobs. Two weeks ago, European-born Islamists made a series of terrorist attacks that Daesh[3] has claimed responsibility for. In response, 29 Republican governors and 1 Democratic governor, starting with my own state’s Governor Synder[4], announced their intent block Federal government attempts to settle Syrian refugees because a terrorist will sneak in or something through the 2 year process. You know, the victims fleeing the war wrecked misery caused in large part by Daesh. This is a profound moral failing. A moral failing deeply institutionalized into our law and culture. And it persists because there is a political benefit to stoking the predictable knee jerk fear of outsiders.

Our immigration system is badly flawed; not just in a technocratic sense, but as the result of malicious policy choices. It caters to racists, nativists, and cowards. It does so by throttling immigration by country of origin, “securing the border” and expelling “subversives. It doesn’t make you a racist, nativist, or coward if you support that system, but it does mean that if you support that system you end up helping racists, nativists and cowards. As an inevitable consequence we have massive permanent underclass of illegal immigrants.

Let me now state that I am the child of two immigrant parents. My wife’s parents were refugees who were in danger because of a failed American war. I’m not coming from a place of objectivity and I won’t pretend otherwise. So what follows (and preceded) is certainly editorialized, but it Is also as precise and accurate as I can manage. For convenience, I will also be referring to refugees, long term nonimmigrant visitors, and immigrants all as “immigrants” despite the legal and sociological differences between the groups. If they’re coming here for a better life than where they were, they’re immigrants enough for our discussion.

My parents and my wife’s parents were able to enter the United States legally through the front door, but they had very little to do with it. My parents are Chinese by way of Taiwan and the Philippines they had good grades and worked hard and applied to college, sure, but they were also politically approved by the Americans, because we liked Taiwan and the Philippines and we didn’t care much for Communist China. My wife’s family fought (via a CIA operation) on the American side of the Vietnam War in exchange for a land of their own when the Americans kicked the commies out of ‘Nam. It didn’t work out so great when America pulled out in defeat. It still took dedicated lobbying and the sponsorship of Christian missionaries to get America’s direct allies over, never mind their families. American politics had a whole lot more to do with our families making it over here than our families did, despite all of the things they did to earn the right to come over. The front door is illusory, crushed by the tight fist of nativist politics. Immigrants manage to slip in through the cracks by luck and pluck. And that’s all that’s left for them now, despite modern America being built on a massive spike in immigration.

The old system lasted between 1921 and 1965, starting with the appropriately named Immigration Act of 1921. The system worked like this: to preserve the American character of our society and secure our border from “homosexuals”, “idiots”, “feeble-minded persons”, “criminals”, “epileptics”, “insane persons”, alcoholics, “professional beggars”, all persons “mentally or physically defective”, polygamists, and anarchists, no more than 3% of the immigrant population could come from any single country of origin, which biased immigration significantly towards West and Northern Europe.[5] This formula was revised in 1924 to lower the rate to 2% and to eliminate citizenship by naturalization from certain places of origin. This had the not at all coincidental effect of keeping out the following Un-American troublemakers:

  • East Asians
  • Arabs
  • Indians
  • South East Asians
  • Africans
  • Southern Europeans
  • Eastern Europeans
  • Jews

Latin America got an unlimited pass because they provided cheap farm labor.

Under the 1924 Act, Asian immigrants were specially barred by classifying them as non-white. This referenced the Naturalization act of 1790, which restricted naturalization to so called free whites of good character.[6] That specific part of the 1924 Act was called Asian Exclusion Act. That passed less than a hundred years ago.

In 1952, the Immigration and Nationality Act finally abolished the racial restrictions of the 1790 Act, but kept the racial/ethnic preferences designed into the national origin caps while ratcheting up the paranoid barriers against suspected “subversives” with the wrong politics. Harry Truman vetoed the act over the political tests and quotas citing many “examples of the absurdity, the cruelty of carrying over into this year of 1952 the isolationist limitations of our 1924 law. In no other realm of our national life are we so hampered and stultified by the dead hand of the past, as we are in this field of immigration.”

In a remarkable show of bipartisan can-do, the 82nd Congress, led by two Democrats, overrode Truman’s veto. Senator McCarran, one of the co-sponsors left us this gem of wisdom:

I believe that this nation is the last hope of Western civilization and if this oasis of the world shall be overrun, perverted, contaminated or destroyed, then the last flickering light of humanity will be extinguished. I take no issue with those who would praise the contributions which have been made to our society by people of many races, of varied creeds and colors. […] However, we have in the United States today hard-core, indigestible blocs which have not become integrated into the American way of life, but which, on the contrary are its deadly enemies. Today, as never before, untold millions are storming our gates for admission and those gates are cracking under the strain.[7]

As a result our system went from explicit racism in preferring whites of “good character” to a slightly more-subtle xenophobia expressed by hand-wringing about all those who refuse to adapt to the American way of life.

In 1965, the national origin quota system was finally replaced with the precursor to our modern preference based system. The new system discarded national preferences in favor of selecting highly skilled migrants and those with family already present.[8] Except it applied the national origin quota system to our visas, which is the first step in coming over as a tourist, worker, or immigrant. There was a hard cap for 170,000 per year created for those originating in the Eastern Hemisphere. There was a hard cap of 120,000 for the Western Hemisphere, with unlimited access for a few favored nations. With some adjustments, we are still using this system today. The bill’s sponsors promised that very little would change as far as the demographic mix of the United States. They were wrong.

The 1965 act heralded a massive rush of immigration to the United States. It created the America we are living in now. My mother was one of the lucky 170,000 year to be allowed a student visa so she could attend school here, work hard, raise a family, and create jobs. My father was allowed to come here and work as a doctor, running the lab and helping surgeons hunt and destroy cancer.

Opponents of immigration defend their position as taking care of the people who are here already as their primary obligation. Well, it turns out immigrants lower prices, create jobs, and help keep you alive. My parents are just one example of many at the highly skilled end.[9] The deliberately cultivated importation of farm laborers from Latin America is another. Our immigration system doesn’t protect the people already here. It hurts them. It tries to deport them. It is in a real sense, the most unsuccessful wasteful and racially discriminatory affirmative action program yet conceived, rewarding legacy European immigrants and punishing poor Latinos who have the hustle necessary to work hard in the illegal immigrant underclass.

Even when the fear of nebulous and omnipresent undesirables, subversives, and now terrorists isn’t hopelessly tainted by politics and racism, it turns out throttling immigration and securing the border doesn’t help much anyway. If you shut out refugees, they come through as skilled workers. You shut out skilled workers, they pose as family members. You ban all new people from coming in, they sneak in. You button up the border, and they laugh and have someone on the inside kill you anyway. You have lost much and gained nothing but fear. Daesh is a malicious idea, not a diffuse people group. That idea can spread over the internet with deadly consequence without the bother of sending over a bomber across the border. We’ve created a cruel, complex, and punitive system and have gotten nothing of worth out of it.

Don’t believe me? Look up the details yourself. Try to follow the immigration process from start to finish and see if you can even comprehend it. Try to comprehend the difference between immigrant and nonimmigrant visas. Try to imagine marrying the person you met in college, and then being interrogated by overworked case officers under inhuman directives about whether your marriage is genuine. Imagine that marriage breaking up under economic strain and infidelity later and you being held up as an example of someone who married as fraud. and then have the failure of that marriage be used as proof of your fraud. Try to imagine coming over to visit family, only to find out you’ve broken the law when you stayed an extra day to help out with the new baby. Try to imagine laboring in America and trying to apply for legal presence, only to find out you have to find the money to fly back to your country of origin and apply there – a home you may never want to see again. And why? Because rules are rules my dear. It says so right on the notice the immigration officials – the ones who are supposed to deport you – send to your apartment.

Yeah, immigration enforcement is a bizarre bit of kabuki. I mean, so often they know where you are. And if you don’t show up to your deportation hearing it’s not like they’re going to send the border patrol after you. They’re busy. Unless you’re a violent offender, anyway. Oh, the consequences are pretty bad for your long term plans so it’s better to show up, but we care a whole lot less than we say we do. Then again, maybe you should be in the country. Maybe you’re not an illegal at all, but an undocumented refugee. So you show up at your immigration hearing, and in your accented English you try to explain to the immigration judge your situation. But the judge is a lawyer and has a legal checklist to follow and there is another government lawyer in the room talking to him. Her job is to make the case against you. If you’re lucky, a non-profit activist or lawyer noticed you on your way in. If not, you’re on your own. You don’t know how to make your case and you go to back to the hell you nearly bankrupted your family to escape from. Your children will never see you again.

Let me make this clear. In our immigration courts, where the consequences for failing to attend are not prioritized, there is a government lawyer whose job it is to try to kick out people who may be bona fide refugees and send them back to hell.

Right now Syria is hell, and Americans have no small part in it becoming that way. We have a bunch of Governors trying to block Federal policy because they’re concerned about the potential of someone sneaking in through a two-year process. It’s not just that it’s worth the risk. It’s that the risk reduction in eliminating or strengthening the system is so negligible as to be nonexistent. But it’s good politics. You get to sound tough. It’s easy to sound tough when all you’re hurting are voiceless and voteless immigrants.

Immigrants work for you and I and the tomorrow of our children. Immigrant soldiers bleed on our battlefields, immigrant laborers sweat in our farms and immigrant children dream the American dream when so many Americans are too cowardly to hope for a better tomorrow. Did your forefathers live and die to give you a better life in this country or do you think they lived and died so you can give other people a worse one? What kind of thankfulness is it to count your blessings to be American and free while shutting out new Americans?


Ta-Nehisi Coates, Martin Luther King Jr. and Max Weber

Ta-Nehisi Coates wrote a powerful and much criticized piece criticizing calls for non-violence in the wake of the Baltimore unrest. Once again, NPR has done some stellar reporting. Robert Siegal pushed back hard, as he should have, but he also gave Coates plenty of room to explain his thinking. It’s a good interview, go listen to it.

What struck me the most was Coates invocation of Martin Luther King Jr.’s rejection of the Vietnam War late into his life. If you’re going to advocate non-violence, Coates seems to be saying, then you can’t be OK with state violence. Not just abusive cops, but the violent decisions made in law to incarcerate black men.

Look, Coates almost certainly knows what King had to say better than I am. And I’m probably suspiciously similar to the white moderate King lamented. But I think Coates seems to have forgotten something important. King wasn’t just about non-violence. He was talking about non-violent resistance as a form of civil disobedience. The “civil” in civil disobedience is not about polite protest. Civil disobedience is noisy, disruptive and unsettling. But it also (if only implicitly) concedes the necessity and validity of civil order, of law and government.

From Martin Luther King Junior’s famed Letter from a Birmingham Jail:

I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

King was comparing segregationist laws to an external standard of right and wrong, specifically that of God, but what’s important is that he is attacking a law or several laws, not the concept of law itself. The thing is, you can’t talk about earthly law without talking about violence, because all law comes from the power of violence.

If you sue someone (let’s presume they deserved it) under a right given to you by law you are using violence. How you ask? Well the court isn’t giving you money when you win, it gives you a judgement instead and the other guy is supposed to pay up. But if the other guy doesn’t? You go to a sheriff who seizes property from the other guy. Like their house or something. And if the guy doesn’t want to give it up? The sheriff takes it anyway. And if the guy resists, he gets thrown in jail. If the other guy resists violently, he gets shot.

“He gets shot” is the final step in every legal right you have against the world. The court dictates what is yours through law, which also dictates that the state may use violence to enforce that right, and none may use violence against the state’s agents to resist. The state not only is violent, it has a monopoly on the legitimate use of violence. If that legitimacy is lost, the state has failed.

This isn’t some outlandish theory by the way, its the modern definition of the state originally proffered by Max Weber, who among other things, is one of the three founders of sociology. Inexplicably, otherwise well educated young ideologues are unfamiliar with this concept. It’s certainly an idea that King would have tussled with in his time (influenced as he was by Reinhold Niebuhr, the great Christian Realist) and in some ways, Coates as well.


There are many problems with expecting people trained in crime-fighting to be social workers. In the black community, there is a problem of legitimacy. In his 1953 book The Quest For Community, conservative Robert Nisbet distinguishes between “power” and “authority.” Authority, claims Nisbet, is a matter of relationships, allegiances, and association and is “based ultimately upon the consent of those under it.” Power, on the other hand, is “external” and “based upon force.” Power exists where allegiances have decayed or never existed at all. “Power arises,” writes Nesbit, “only when authority breaks down.”

African Americans, for most of our history, have lived under the power of the criminal-justice system, not its authority. The dominant feature in the relationship between African Americans and their country is plunder, and plunder has made police authority an impossibility, and police power a necessity

No one can usefully deny Coates’s observation that police legitimacy has eroded or never existed within many, if not most black communities, but this notion that legitimacy is impossible is not merely depressing. It means that the eventual end to create a society that can treat African Americans justly is to eliminate “this country”. And Coates forgets or ignores that authority is the authority to use force, and in the use of force, one can create legitimacy. You shoot someone that’s a genuine and imminent threat to your neighbors and you will gain legitimacy as an authority.

But perhaps more to the point, I don’t think most black Americans actually agree with Coates that the state is illegitimate. Whatever their frustrations, it seems like most black folks don’t want the state destroyed or gone, they want it to work. I know of no other way to explain the veritable relief that seems to reverberate, live, on television, when it’s announced that the Federal government is intervening, a civil rights lawsuit is coming, a better cop has arrived.

We can’t and we don’t treat violence by cops and violence against cops the same, whatever the intelligentsia manage to slap together in an angry Sunday column or whatever a punk white kid slaps together on a sign denouncing “AmeriKKKa”. If they are morally equivalent, if cops just happen to be an incumbent gang of thugs with badges, then why bother being angry? No, the offense is that we sense that the cops have betrayed our trust, and threatened the legitimacy of the state’s hold on violence, on which our lives are all ordered. I mean, if you’re reading this, you have the internet and thereby a stake in functioning states. And we have a stake in America, not in AmeriKKKa. The rage is in people failing so badly to meet the standards of America. The rage is the satire of Jon Stewart, the comic who loves what America ought to be, and is at its core that he tore it to shreds four nights a week.

And that’s why I’m pushing back on Coates, and I think why Robert Siegal pushed back. I don’t know Coates, person from a hole in the ground, but I love Coates, writer and social critic. And I love this country. I think Coates does too. And disobedience in pursuit of justice is an action of love.

A Brief History of American Religious Liberty Law – Part I: From Europe to the Bill of Rights

I started this post many moons ago as a way to explain what was going on in the Hobby Lobby. Like every other project that is meant to be a “brief history” it quickly spiraled out of control.1 So I left it alone, gathering dust in my drafts folder.

Then Indiana happened. And it turns out we’ve not advanced the ball at all as far as civic knowledge or civic purpose since Hobby Lobby. Once again, we’re talking about religious liberty and its place, or lack thereof, in our society. Once again, American journalists and politicians are proving themselves religiously illiterate.2 Now, fixing American journalism is a quest too quixotic even for myself. So I’m going to do my best to make you all a little less wrong. This post will cover up to the Bill of Rights. I’m going a bit deeper than typical treatments of the topic, but I am still covering a very long time period quickly. History is hard and causation is complex so on some level, you’re just going to have to accept my account will be imperfect. Caveat lector.

Bloody Europe

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As we have all been taught, in the beginning the Pilgrims and other religious emigrants left Europe in order to freely practice their religion. So they set for new lands far from their Kings and Queens where they could be left alone – sort of. The truth was, of course, more complex than that. Petty material concerns were interwoven with less than saintly religious motivations. There are many, many accessible sources on the web purporting to debunk the myths of the early American religious freedom, and if that is what you’re interested in, Google will lead you to those places quickly. The classic account is true enough for our purposes. It is lacking in important details. For starters, Europe was not a vague threat to the liberties of man. It was a bloody battleground of religious warfare.

The emigrants that undertook the arduous journey to the New World were fleeing a divided Europe. Europe has always been a relatively tiny place with too many ethno-linguistic groups in the business of slaughtering each other.3 They killed each other over land and over gold and for honor and because of factional conflict and because of soccer.4 That they also killed each other over religion should not surprise us. What is surprising is that they ever managed to stop killing each other.

The 16th century added a massive splinter faction (Protestantism) within Western Christianity to bloody thrust of European history. True to form, Protestantism soon developed offshoots, of which a third major player, Calivinism – or the Reformed tradition, was the most significant. These factions were made up of converts, not aliens. Where there was once one religion, there were now two or three major faiths vying for influence and control. The European religious wars involved territorial rulers fighting for the right to follow their religious conscience, and then impose it on their subjects. There were spurts of religious tolerance, but they were failed experiments or the result of inattention, not permanent peaces. Even formal agreements, like the Peace of Augsburg, named a small number of tolerated religions, excluding the rest. Christian religious pluralism grew in Europe despite the best attempts of princes and kings suppress it. In 1618, the failure of the Powers to contain Christian pluralism was punctuated by the Thirty Years War. The German lands turned to mud as the Catholics and Protestants of Europe fought out their religious and regional rivalries to the point of exhaustion.

Pilgrims and the Colonies

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The Virginia colony was formed after most of the religious wars, after considerable religious upheaval in England and just a few years before the Thirty Years War began. When the puritans came, they took the lessons of Europe with them. Freedom, yes – but the freedom to impose their religion on their community and any Amerindians that fell under their baleful eye. This strikes us Moderns as barbaric, but it has its own cold internal logic. The puritans were playing for infinite stakes. What value is tolerance before the fires of hell?

Maryland was founded in 1634 by Cecilius Calvert as a Catholic refuge for the Catholic English fleeing England. Now, Maryland may have been a Catholic refuge, but it was still under Anglican rule, and so Protestants soon flooded the colony. The governor encouraged the colonists to leave their religious rivalries back in Europe. For a while, they did. But despite the colonists’ hopes, Europe’s troubles would reach across the Atlantic. The outbreak of the English Civil War disrupted the peace in Maryland and threatened Calvert’s grasp on power and civic order. So Maryland’s law enshrining religious tolerance came to pass in 1649, but only for Trinitarians. It was a deal between the Catholic minority leadership and the Protestant majority populace. It would last only five years before Protestants rescinded the act and drove the Catholics underground.

There were other, more successful religious tolerance experiments in the Colonies. Roger Williams repeatedly dissented against the powers of his day and was eventually sentenced to death. He fled to what is now Rhode Island and established a sanctuary for dissent and seperationism. There were other small experiments in religious toleration enshrined in law: Connecticut, New Jersey and especially Pennsylvania. These attempts were more successful than Maryland, but largely because they were driven by dissidents. The colonies had adopted European styled religious persecution, and so they fled to form other states. Religious tolerance was not a natural result of a plural people. It was the desperate gambit of dissidents.

Founding and the Religion Clauses

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Fast forward to 1760s. Led by notables from the landed, educated classes, a bunch of colonial yeomen, small business owners and craftsmen revolted against the British powers (and their local allies).5 Revolt becomes a revolution and to everyone’s surprise the Americans win.

At the founding, there was a very weak central government and several powerful states. The majority of those states had official state religions using their sovereign authority to force it upon their populations, not days from fighting a bloody war to throw off tyrannical power. There was little doubt they could do so, even if some people thought it was a terrible idea. People like James Madison.

Now the early Americans were very much cognizant that religion can be both a rival and an ally for state power, so it was a bit of a tug of war between those imperatives. So while a part of the Virginia legislature Madison laid out his case against state interference in religion. The Memorial and Remonstrance is a great document and you should read it. But most of you won’t , so here is the summary:

  1. Religion is of the utmost importance and civil society has no place in messing with it.
  2. Favoring one religion is both unfair and liable to bite you in the ass.
  3. Civil Judges are a terrible choice for arbiter of Religious Truth.
  4. And really, Christianity is doing just fine without government. In fact, it does pretty poorly as a part of government and does much better when there is competition among religions.
  5. Look, religious feeling is remarkably resilient to government declarations to the contrary. Everyone you’re not favoring tends to get surly and starts avoiding your state. A lot of them just refuse to comply.
  6. And you know, we’re just now getting along with each other, let’s not rock the boat and tempt inter-religious conflict. Just look at how that worked out in Europe! Blood and wailing orphans everywhere.
  7. Is this really necessary and popularly supported?
  8. I meant what I said earlier. Religion matters and conscience matters and we ought not mess with it

In case any of you thought otherwise, we have not in fact come up with any better arguments since. Madison’s side won decisively.

Four years later, Madison heads to the Constitutional Convention, worried, like many of his fellows, about the state of the republic. See, the government was weak, had a lot of war debt, and was having a hard time raising the taxes to pay it all off. So, a stronger central government it was and the Bill of Rights was created, in part, to allay the fears of those afraid of the central government.6 Among those early important rights was this little line:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Yeah, that was Madison at the helm.7

So, all that state religion stuff is gotten rid of, right? Wrong! The United States Congress could make no law establishing religion or prohibiting the free exercise thereof. The States could do whatever they pleased.

We’ll pick back up next time with some beleaguered religious minorities: Mormons, Catholics, Jehova’s Witnesses and the Amish.


A Preliminary Expectoration on Hobby Lobby

I’ve been without power for most of today, so I only have time for one quick thought on Burwell v. Hobby Lobby Stores, Inc.. I hope to have a more extensive write up, probably in a two three post series. For now, I want to start by introducing some concepts that may not be completely familiar to a general audience. Please note, despite the title, I do not think myself the equal of Soren Kierkegaard.

Hobby Lobby is not a First Amendment case. That means it is not about the Free Exercise of religion, even if it is about exercising religion, and it isn’t about the Establishment of Religion, even if there are religious actors are involved. It is actually a Religious Freedom Restoration Act (RFRA, sometimes pronounced “rif-ra”) case, so it is in large part about determining what Congress meant when it created and amended the act and less about the underlying judicial policy questions of religion and person-hood, although those are obviously a factor. Understanding the case in that way helps clarify the issues worth caring about as a lawyer and a lay citizen.

I like to think of policy questions as constantly asking about “who do we want doing what to who at what cost?” It is always worth asking, not only is the thing we are asking the right thing to want, but are the right people the ones doing those actions, and that the costs are acceptable. That’s already a lot to ask, and you have to keep asking at every step of the way. This also means that simple answers are usually the wrong ones ones. In fact, you’re usually going to come up with several answers that are in tension with each other. So we’re going to want to balance the needs and the costs. And then we’re going to have to figure out who does the balancing for us.

So before we deal with Hobby Lobby itself, let’s think about RFRA more broadly. Who? Religious believers. Doing what? Rejecting substantial burdens To who? Governments and their agents. At what cost? Governments have to have compelling interests and use the least restrictive means. Let’s iterate the questions once because this is important. Who decides what a compelling interest is? Who decides what qualifies as the least restrictive means? Who decides who counts as a religious believer? Who decides what a substantial burden is? How do we determine the balance?

Religious liberty is not easy, because it involves two big asks. We need to have our ability to pursue our religion (or irrelegion) protected from coercive powers, governmental or private. At the same time, we need to be able to pursue our lives and construct our society without having to bear the costs of someone else’s religion. The bottom line here is that I think the big question – is RFRA a good idea? – is hard and the smaller question – should Hobby Lobby have won? – is also hard. Anyone who tells you otherwise is probably not asking enough questions.

Remedial Lessons in Vergara v. California

Earlier this week, a some very smart men wrote some silly things about education. One of them was Judge Rolf M. Treu in his tentative decision to strike down the teacher tenure system1 in Vergara v. California. Vergara is a public interest suit by nine students (or rather, their guardians) brought together by the 501(c)(3) organization Students Matter with the goal of striking down five statutes: the Permanent Employment Statute, the Written Charges Statute, the Correct and Cure Statute, the Dismissal Hearing Statute, and the Last-In-First-Out (LIFO) Statute. The plaintiff’s argument can be roughly distilled as follows:

  1. The five statutes create a statutory scheme that protects teacher’s employment in particular ways
  2. This scheme makes it burdensome, difficult and expensive on schools to correctly hire good teachers and fire bad teachers.
  3. This results in a surplus of bad teachers and deficit of good teachers
  4. The bad teachers end up disproportionately at schools with high concentrations of low SES, non-white, and/or English learner students
  5. A surplus of bad teachers creates significant harm to students
  6. the scheme thus infringes on the students right to equal protection of their fundamental right to education
  7. Ergo, the scheme is unconstitutional

Sounds good so far right? Unfortunately, not so much. Read more of this post

Emergent Evil, Perspective, and Responsibility

In these last couple weeks, I’ve been circling around a recurring theme of the complexities of responsibility for evil. When we talk about particular evils that are in the world, the stakes and baggage tends to cloud up our discussions, so I’d like turn to the weightless world of video games as a venue to examine evil and who is responsible for it.

In video game design, there is a lot of talk about designing games with emergent gameplay instead of curated gameplay. Curated gameplay is what most people think of when they think of a video games: game designers provide a top to bottom engineered experience, scripted to suit the beginning, middle, and end of the game’s story. When you play, say, Mario Bros., you run through the same levels, interacting with the same enemies, entering the same castles where your princess is still not available for rescue. Emergent gameplay, on the other hand, occurs when designers create a set of game mechanics and rules, and player interaction with those rules and each other causes complex game systems to emerge.

A particularly interesting example of emergent gameplay occurs within EVE Online, a MMPORG best described as a nightmarish combination of multiplayer Sid Meier’s Pirates! in space! and Microsoft Excel. Within the EVE Online game space there have emerged complex societal and financial transactions, specialized roles, and factions made entirely of players creating their own norms and behaviors, without the benefit of the computerized game to enforce them.1 That’s pretty amazing, but it comes with an enormous amount of bad, anti-social behavior, even virtual crimes. Players will often find their in-game avatars killed for the amusement of other players, have their assets stolen by supposed friends, and a whole host of advanced predation. It isn’t just virtual reputation and blood, sweat, and tears at stake either, virtual in-game cash is sufficiently fungible to turn into out-of-game currency.

The game designers respond to all of this predation by smiling and disclaiming responsibility.2 Perhaps this is disingenuous. After all, the designers of EVE Online chose to create a mostly lawless environment, and then they encouraged players to take advantage of it. Surely then, they have some sort of responsibility for the predators they enable. But, wouldn’t there also be a special sort of responsibility, perhaps even an intervening one, for the predators who take advantage of that lawless environment? Aren’t the designers of EVE Online less responsible for the emergent predation that they could not have foreseen compared to the ones they foresaw or even encouraged?

When I criticized Ta-Neisi Coates’ Case for Reparations, I focused on his vague, even incoherent, description of the reparations themselves. This incoherence stemmed from his treatment of the different sorts of predation he cataloged. From slavery, to redlining by Federal Housing Administration (FHA), to contract sellers, to rogue grand juries to lynchings, Coates never paused to dwell on the diversity of bad actors, treating sovereigns and mob members alike. When the contract sellers preyed on Black families in North Lawndale, was the city of Chicago (or the FHA, or the realtors or…) curating that evil, or did it emerge?3 The Case for Reparations clearly demonstrated that the FHA directly and maliciously harmed Blacks with redlining, and redlining gave rise to an environment where predators thrived. It is not clear however, that contract sellers were cultivated or merely emerged as an unhappy accident.

Emergent evils were at work in a different way during Elliot Rodger’s lethal rampage on a UC Santa Barbara sorority. Rodger was apparently spurred on by his misogyny and frustration with his “involuntary celibacy”. Rodger’s evil was emergent, doubly so. There is little doubt in my mind that Rodger was mad, but his madness filtered through a cultural substrate, colored, glossed, and tweaked by the particular sorts of horrors our society produces at its fringes.4 Just as the paranoid take unconscious inspiration from the news and TV shows to imagine themselves the unwitting stars of reality television, Rodger’s rage was stewed in misogyny and a toxic sort of masculinity. In response to Rodger’s attack on women, many women went online to share their perspectives and experience using the hashtag #YesAllWomen 5 The common thread that emerged throughout the tweets was an overwhelming sense of fear of predation by men. Not all men, but not any particular man or group of men either.

The Rogers of the world are not the fault of Patriarchal video-game-of-life designers using the Rogers of the world as their victim-assailants on women.6 The appearance of such a design is illusory, the result of invisible strands of culture taking hold as they tug, shift, and channel ideas, even with the supposed puppet masters of our society. The commonality of experiences do not indicate a commonality of cause, a conspiracy of predation. To what degree are the Rodgers of the world and other threats to women emergent and what to degree are they curated? That is the sort of question that doesn’t get answered much by those advocating social justice, and while I have plenty of uncharitable guesses as to why, the fairest explanation seems to be that from the victim’s perspective, whether predators emerged or were curated is pretty unimportant. The victimization happens either way, and whether implicitly or explicitly, social justice advocates are advocating on behalf of victims.

It does matter whether the threats from men described in the #YesAllWomen tweets were emergent or curated, and it matters whether the contract sellers emerged or were curated. Not just because that will shed light on who the villain, if any, of the tale is. If social justice advocates speak for the victims, and lawyers speak on behalf of the accused, it leaves the rest of us as third parties. Paying attention to whether evils are emergent gives an accurate and precise description of the how and why of the problem at hand. If you’re in the business of making the world a better place, an accurate and precise description of a problem puts you a well designed and implemented machine away from solving that problem.

That problem has to be solved. Both #YesAllWomen and the Case for Reparations drove home experiences held in common that have infected the very warp and woof of the daily life of too many people. Emergent evil is not satisfying theory of those crimes, and it is not meant to be. To recognize emergence is to recognize that very few are actually guilty. In fact, emergence can produce good as well as evil, so it also denies us many heroes. But if a theory of emergent evil denies an illusory justice for victims, it does not deny that there are victims. Abraham Joshua Heschel once said that “[f]ew are guilty, but all are responsible.” Emergence denies guilt, but it does not absolve us of our responsibility.


Ta-Neisi Coates and the Wages of Supremacy

Ta-Neisi Coates has written a long and provocative deep-think piece entitled “The Case for Reparations”, his “take on the Atlantic as a Journal of ‘Big Ideas'” and it is a tour-de-force. Please, read the whole thing, summaries can’t do it justice. That goes double for those of you who are not interested in the underlying case, Coates tells a lot of important stories along the way, and his writing is an artistic treasure. Don’t miss it.

I was deeply moved upon reading The Case for Reparations. The article follows multiple threads, historical events as told by both experts and by those who survived them. I now have a deeper appreciation for the damage done to black America by America, in all the meaningful senses of the term, and I can begin to sense the hazy boundaries of how ignorant of it I really am. Much as I was informed, I was challenged; as I was challenged, I was compelled; but despite being compelled, I remain unconvinced. This is because that Coates’ argument is not valid, (in the formal logic sense, not the internet shouting match sense) but his assertions are true.1 He has proven a great deal, just not out what he set out to do. I worried that I was nitpicking – letting a mind shaped by years of formal argumentation training miss out on the substance of the article. The article reads like a documentary more than a brief after all. Coates is not just telling stories, he described his article as “an argument in support of reparations” in a blog posting, describing the evolution of his thinking.
Read more of this post

Paying for Time Stolen

Earlier this week, April 29, at 6:23 local time, a man most of us had never heard of was injected with a drug meant to put him into unconsciousness. Ten minutes later he was declared to be unconscious and injected with two drugs meant to kill him. Three minutes after that, he began to writhe and thrash. Three minutes after that, he was heard to speak. Within minutes, a stay of execution was issued. “Vein failure” was declared to be the problem. 7:06, forty-three minutes afterwards, the man was declared dead by heart attack. Over the next hours and days, pieces were published: was this torture; was this justice?

On June 3rd, 1999, a woman most of us had never heard of went to a home in Perry, Oklahoma and dropped her friend Summer Hair off at Summer’s friend Bobby Bornt’s house so they could convince him to come to a party. They found the man and his two accomplices there, robbing the house. Bobby had been beaten and gagged with duct tape. Summer entered the room, was beaten, and forced to call to the woman. The woman came in and was struck. She fought. She was beaten. The men placed the woman, Summer, and Bobby in the the room where Bobby’s son, Sam was sleeping. Sam had been born just nine months before. Summer was taken away. Summer was raped. She was forced to undress and raped again. She was left momentarily alone in the room and then raped again. Summer was taken back to Sam’s room and the woman, Summer, Bobby and Sam were all bound and gagged. The man and his accomplices found a shovel, and then drove the woman, Summer, Bobby and Sam into a rural area outside of town.

The woman watched as the man and his accomplices raped Summer in a shallow ditch. The men demanded the woman stay quiet about everything that happened. She refused. She was forced into the ditch. She watched as they dug deeper into the ditch. Twenty minutes passed. They shot her. The gun jammed. The man walked to the truck. She screamed and sobbed as the men joked about how tough she was. The man returned and shot her again. She was buried. Later, she finally died. Two weeks before that, the woman had graduated high school. Before that, she had taught at Vacation Bible School. Nineteen years before she was murdered, she had been born and named Stephanie Neiman.

Thirty-eight years, five months and seven days before his death and before the world cared about how he died, the man was born Clayton Lockett. In the months before his birth his mother did drugs. Three years later, his mother abandoned him. His father used drugs and blew the smoke up Clayton’s nose. He was beaten and abused. He was taught how to commit crimes. He was punished for being caught. He joined a gang. Or maybe, instead, fourteen years ago, Clayton Lockett led a conspiracy to lie about what happened thirty-five years ago. Maybe some mix of both.

Two days ago, for the crime of murdering Stephanie Neiman, the the state attempted to execute Clayton Lockett painlessly and humanly. The state failed. Was it justice? Was it torture?

I don’t know if the state owed Lockett a painless death, but the state owed it to us. I know Clayton Lockett owed Stephanie Neiman, Summer Hair, Bobby Bornt, and Sam Bornt more than in life or death he could repay. Before I told you, did you even know their names? Two stories you didn’t know and didn’t care about the day before Tuesday ended fifteen years apart but forever linked. Stolen time for stolen time.

* * *

A tort is a wrong done against a person wherein compensation is forcibly extracted. A crime is a wrong done against society for which punishment is exacted. Between the two there is plenty of muddy ground where compensation and punishment irreversibly mix. The state has few tools, fewer still that it is willing to use. The state can take away your money, the state can take away your freedom, and sometimes, the state will even take away your life. Only with the money can the state give it to someone else. So when money is lost by one wronged, money is given. When pleasure is lost, money is given. When mobility is lost, money is given. When life is lost, money is given. Lawyers do not pretend that money can truly compensate for all losses, but we sometimes agree to pretend to pretend that time really is money.

When crime is punished, then too money will be taken. But money is nothing compared to freedom. The state takes away computers, associates, and solitude first. If the wound is great enough, the state takes away more. The state takes away mobility. The state takes away hope. The state enforces solitude. Lawyers do not pretend that taking away someone’s freedom can heal the wound, but sometimes we agree to pretend to pretend.

We know that killing, whether painfully or painlessly, cannot compensate for a life lost, cannot stitch the wound closed. We know that we cannot fix anything when we take away life. We know that we cannot create time. But sometimes we pretend to pretend.

Irreverent Bastards and Covers (Part I)

I’m still working on a lengthy meditation on what exactly qualifies as “culture.” It is going about as well as you would expect. The difficulty of writing on such a nebulous topic is made only worse by the constant distraction of interesting ideas and writers I encounter on a daily basis. So, you dear reader, get to serve as my pensieve as I clear a little space up for other thoughts.

I am not, despite my many pretensions, under the illusion I am a musical expert. I am not even a music enthusiast. I am among the very least trained of amateur listeners and that is the way I like it. For one thing, I can enjoy little indie acts on YouTube without thinking too hard about who they are, who they sound like, or how admiting to liking that music will make me appear before my peers. One of those acts is Lauren O’Connell (her YouTube channel can be found here) and it turns out, she also occasionally blogs about the responsibilities of artists performing covers.

Some anonymous person on the internet commented on O’Connel’s cover of “The House of the Rising Sun” thusly

Only masters of music should TRY this song. When you hear Nina Simone and Odetta cover this song. You understand the monster of a song you are trying to play. The Animals, Bob Dylan and Leadbelly have tried and have all failed.

As a musician; I would never play this song. If you can’t make it better, then you shouldn’t even try. Or don’t post it at least.

O’Connell is having none of it

I used to apply that “untouchable songs” rule to myself. However, after several years of covering songs, writing songs, listening to lots of music, and undergoing the occasional artistic crisis, I decided that it’s better to live and work without that particular hangup.

So as you may have gathered, I take issue with the idea that someone shouldn’t even try to cover something that’s previously been done well if they can’t “make it better.” The implication that someone doesn’t have the right to attempt a particular artistic statement is problematic. […]

Fortunately, in this century, most of us don’t have to worry about our works actually being censored by the powers that be. But I think an attitude of censorship within the artistic community might be worse. It’s not about expression being kept underground. It’s about expression never happening in the first place.

I firmly believe that in order to be great, one must first be fucking awful. […]Right now, you should be a cocky, irreverent bastard. […] Crash and burn.

I’m torn between embracing O’Connell’s exhortation of creative daring and the natural caution that some songs and versions cannot, and ought not be topped. As a music listener, I spend most of my time listening to college kids sing a capella, folk songs, and whatever Pandora manages to slip in while I listen to those genres. As a result, I listen to an enormous number of covers, which I of course enjoy. The best are the literate covers that reach back, back in our cultural memory and musical history: popular songs by pop artists get reworked, made different, elevated to something greater than what they are. But even when it is just a bunch of college kids having fun singing the latest pop hit, there is something about the stripped down nature of most covers that I prefer to their high production value originals.

Sometimes, sometimes, you encounter a song that genuinely amazes – a bit of popular music that transcends the hit-making machine that is the music industry. Take Adele’s “Rolling in the Deep”. Adele has what all agree is an astonishing voice, both from the quality of her vocal technique and in the emotional depth of her singing. I can’t even imagine anyone singing Adele’s songs, like Adele, and better than Adele in anyway. If an angel descended from heaven in and opened his mouth to sing the song that fully realizes the Kingdom of God and I heard the first notes of Rolling in the Deep, I’d wince for fear the angel embarrassing himself. Just listen to Adele sing it!

This of course, does not stop artists from trying their very damnedest to cover it, and I’ve heard a lot of attempts to go head-to-head with Adele that fell short. Most of them aren’t bad, but they aren’t great either. I usually feel in some small way enriched after listening to music I enjoy. After listening one of these good but not good enough covers, I feel impoverished. It is in this sense that some music becomes untouchable, and “Rolling in the Deep” seems like as good a candidate for thou-shalt-not-cover as any. Despite everything I just said, one of my favorite covers is John Legend’s rendition of “Rolling in the Deep.” Legend’s voice is glorious and spiritual. Legend distills Adele’s riff on American roots music down, down into a haunting and soulful piece of music. Give it a listen.

Is Legend’s cover a violation of the untouchable songs rule submitted by the commentator? Maybe, maybe not. On one hand it is a cover of a great song that even the most virtuotic singers frequently fail to honor. On the other hand, Legend’s version is different from the original, not merely an inferior copy. His approach to it is not an attempt at imitation of Adele, or to out do Adele, but a lateral interpretation of the music.

Are transformative covers made more likely by encouraging artists to freely cover, imitate, and to be cocky and irreverent bastards? Or are they the product of strong social barriers put up by other musicians around so called great music? Do we want to tweak the mix? How many bad attempts at Rolling in the Deep by college students does John Legend’s cover justify?

As odd as it might sound, this dilemma is made possible by one of the few redeeming features of our contemporary copyright regime. Come back to this space Friday for part II, where we’ll look at how copyright law encourages covers and what this all has to do with free speech.