Eugene Volokh's Blog, page 2591
March 17, 2012
ConText: Crowd-Sourcing James Madison's Notes of the Convention
Most blogosphericos know Benjamin Wittes as a founding editor of the premiere national security law blogsite, Lawfare (for which I serve as His Serenity, the Book Review Editor). However, he has a broader role at the Brookings Institution, where he is a senior fellow in Governance Studies. Most recently, this has led to an exciting new project between Brookings and the Center for the Constitution at James Madison's Montpelier (which, if you live in the DC-VA area, is well worth a visit). It is called ConText: An Experiment in Crowd-Sourced Commentary. Which is to say, what do James Madison, the Constitutional Convention, Wikipedia, and the Talmud have in common? Wittes explains:
That's the question behind a new project Brookings has launched in partnership with the Center for the Constitution at James Madison's Montpelier. The project, about which I am deeply excited, is at one level an attempt to bring to life the most important document in American history that nobody ever reads: Madison's Notes of the Debates in the Federal Convention of 1787. At another level, however, it is a broader experiment in crowd-sourcing commentary on dense historical texts and in illuminating those texts for the public, for students, and for scholars in new ways.
It also has an interesting story behind it.
For several years now, Brookings and Montpelier have been conducting joint programming on a variety of issues related to the Constitution and contemporary public policy. Montpelier, for those of you who have never visited it, is the plantation of James Madison. The idyllic setting is also the home of the Center for the Constitution, which conducts educational seminars about constitutional thought for a variety of audiences: teachers, police officers, legislators, judges. The Brookings-Montpelier collaboration began as an effort to marry such discussion of Founding Era thought with Brookings work on contemporary public policy. Over time, however, we began talking about ways to expand the collaboration into publications. At one point, I suggested to Sean O'Brien—then the director of the center and now the chief operating officer of the larger Montpelier operation—that perhaps we should jointly publish a new edition of the Notes of the Convention. They are, after all, the best record of the Founding debates we have. And while everyone reads the Federalist Papers, very few lay people touch the Notes, which are dense, written in a kind of shorthand code, and are hundreds of pages long.
When I suggested this, Sean sighed and said that the center had been struggling for some time with what to do about the Notes. Another published volume of them, he thought, was not the answer. Somehow, he wanted to bring the Notes to life—to make it possible for people to be in the room as the delegates in Philadelphia thrashed out what became our system of government. Sean's spot-on ambition started me thinking: Was there a way to do this using technology, a way that added intellectual value and was not mere kitsch? Could we take a long, impenetrably-difficult text, and tease meaning out of it in a format that people could more easily approach?
There is a model for this sort of thing, but it's not a model from the American constitutional tradition; it's the Talmud—the multi-volume exposition of Jewish law that developed after the Romans sacked the Temple in Jerusalem. The Talmud is a series of debates—and commentaries on those debates—on a text called the Mishnah. The rabbis found an ingenious way of commenting on this dry, lengthy text in a language (Ancient Hebrew) which was already in Roman times no longer their vernacular (they spoke and wrote in Aramaic). On a page of Talmud, a passage of Mishnah is physically surrounded by layers of commentary text, more and more of them as the centuries wore on. So in the center of the page is a short passage, by tradition, of course, Divine, but often in practice dry as dust; yet radiating out from that passage is centuries of wisdom and thought. It is not merely a form of crowd-sourced scholarship, but it is a visual means of expressing that scholarship and crowd-sourcing that seemed to me to have broad application to the exposition of lengthy and difficult historical texts like the Notes.
The trouble, of course, was that the Talmud developed over centuries, whereas Sean and I wanted to bring out the Notes now. And that's where Wikipedia comes in. If the wisdom of crowds can write an encyclopedia, maybe a smaller crowd of scholars and interested lay people could write a commentary on the Notes. Perhaps we could develop a technological architecture that would allow a scholarly community to do over months and years what the rabbis took centuries to do with the Mishnah. This required software development.
The result is ConText, which launched today, Madison's birthday. Organized like the Talmud, ConText surrounds the Notes with layers of commentary—commentary on the history (what was going on in the room), current events (how these events relate to current politics), theoretical and philosophical issues, and subsequent constitutional interpretation and dispute. Like Wikipedia, that commentary will be written by a scholarly community that develops around ConText: historians, constitutional scholars and practitioners, and interested students and lay people. Both the text and the commentary are fully searchable. And anyone can get an account and begin contributing.
The ConText project is not limited to the Notes, though the Notes represent the core of the experiment. If this platform will support a scholarly community devoted to illuminating this document, there are a great many other Founding Era texts (and texts from other periods), for which it might work as well. I have even flirted with the idea that it might offer a way for the intelligence community to seek analytical input on complicated contemporary unclassified texts from a broad range of scholars from whom it does not normally hear.
So please, check it out. Learn about the Notes, and contribute your knowledge of them and of the later constitutional history that began with them to the project.
The Politics of The Hunger Games
The Hunger Games, a hugely popular series of science fiction novels by Suzanne Collins, is coming out as a major movie next week. At Ricochet, James Delingpole argues that the series has a strong Tea Party-esque antigovernment message.
I summarized the plot here:
In the far future, what's left of a post-apocalyptic United States is ruled by a tyrannical central government (the "Capitol") that oppresses and exploits twelve subordinate districts. Every year, each of the districts must send two teenagers (a boy and a girl) to participate in the Hunger Games, a nationally televised game show where they fight each other to the death until only one survives. The government uses the Games to entertain the public and divert their attention away from its oppressive nature, while also reminding the districts that any attempt at rebellion is doomed to failure. Main character Katniss Everdeen ends up in the Games after she volunteers to take the place of her younger sister, who was chosen in the selection lottery.
Here is Delingpole's interpretation of the series' message:
America, the near future. So vast and controlling and all-powerful has grown the DC political machine that the country at large is now just a collection of vassal states whose cowed, servile populations exist solely to provide goods and services to the grotesque sybarite class in the Capitol. In this future, the free market has been all but abolished – which is why, of course, starvation is rife and shortages are endemic. Only on the black market does free trade still survive. It's illegal but it's the only place where you can haggle for sufficient food – mostly game poached at great personal risk – to keep your family alive….
The Hunger Games is probably the best education any child can get into the horrors of Big Government and the tyranny and injustice of statism. It's impossible to read this book and not come away thinking like a Tea Partier.
Actually, the series seems to be set much later than the near future, probably at least a century or two from now (the books are not very clear on this, but all the clues we get point to a large amount of time passing, to the point where the old America has been almost completely forgotten).
More importantly, I am not sure that Delingpole's interpretation of the series' politics is correct. Collins does indeed convey a very skeptical view of government. Not only the Capitol but even the government promoted by its opponents turns out to be tyrannical, which suggests that the flaws of government are institutional and not merely the result of the wrong leaders being in power. However, it is far from clear that Collins promotes libertarianism or Tea Party-like conservatism as the solution to this problem.
Moreover, a left-wing interpretation of the series' politics is at least as plausible as Delingpole's is. The "sybarite class" of the Capitol and their oppression of the twelve districts can be seen as a classic leftist parable of the oppression of the poor by the rich. The game show-like nature of the Hunger Games can be interpreted as an indictment of commercialism. And perhaps the true way forward for Panem is a government that cracks down on commercialism, redistributes wealth to the poor, and gives everyone free food and health care.
The series is subject to such widely disparate interpretations in part because Collins' world-building is relatively weak. We don't learn very much about the political and economic system of Panem, and some of what we do learn is internally inconsistent. We don't even know whether Panem's economy is primarily capitalist or socialist. Are the coal mines mines where most of District 12′s population works owned by the government or by private firms? We are never told.
Contra Delingpole, District 12 does seem to have some private small businesses that operate legally (e.g. – Peeta Mellark's father owns a bakery), as does the Capitol (we see a few of them in the third book). Therefore, private enterprise has not been completely relegated to the black market. But there certainly is a substantial black market sector, and it is not clear whether there are any large privately owned enterprises, either in the districts or in the Capitol.
Equally striking, we don't see any evidence of an official ideology propagated by the government, other than the idea that resistance to the rule of the Capitol is futile. Virtually all real world dictatorships do in fact rely on ideology to stay in power as well as the threat of force. Indoctrination doesn't persuade everyone, but it is often at least partially effective in helping an oppressive regime stay in power. In addition to being unrealistic, the absence of an official ideology makes it difficult for readers to figure out what kind of political and economic system the Capitol has established. The Capitol's opponents also lack a clear ideology (though Collins gives us a few more hints here than on the side of the Capitol).
The Hunger Games would have been better if it had greater depth and realism in its political setting. On the other hand, the series does have some great characters and psychological development, and is mesmerizing despite its flaws. And, as Delingpole's interpretation demonstrates, the thinness of Collins' world-building allows both right and left-wing readers to read their own ideas into the story. This may contribute to its popularity.
UPDATE: I have restructured this post somewhat to make it more clear.
Is It Unconstitutional for Laws to Be Based on Their Supporters' Religiously Founded Moral Beliefs?
This perennial question came up again on an academic e-mail discussion list that I'm on, so I thought I'd blog about it (though I said much the same thing 10 years ago, in another blog post). I think the answer is not just "no," but "hell, no" — I think it would be an outrageous discrimination against religious believers to have such a constitutional rule, and fortunately nothing in the history or the precedents of the Establishment Clause supports this position.
My most recent brush with the argument happened with regard to rules against recognizing same-sex marriage, but others have raised the same argument as to cloning bans, abortion bans, and the like: Isn't it illegitimate for the government to ban cloning, or fail to recognize same-sex marriages, when most of the arguments for that position are essentially religious? Isn't that an unconstitutional violation of the separation of church and state, or at least a violation of some democratic norm that people ought not force their religious views on others?
But most of the coercive laws that we hotly debate involve the forcing of a majority's views on the minority. That's true of laws protecting endangered species, antislavery laws, antidiscrimination laws, animal cruelty laws, environmental laws, intellectual property laws — or for that matter bans on infanticide, child sexual abuse, or more generally murder, rape, or theft. Some of these laws may be sound on the merits, and others unsound. But the fact that they force one group's views on another doesn't make them wrong.
Religious people have moral views just like secular people do, and they're just as entitled as secular people to use the political process to enact their views into law. True, religious people's moral views may rest on unproven and probably unprovable metaphysical assumptions — but the same is generally true as to secular people's moral views.
To say that religious arguments must be excluded from public debate, while equally unprovable secular moral arguments may continue to be made, would be to turn into second-class citizens those people whose basic moral views come from their religion. Neither the Constitution nor sound political morality require this.
In fact, many important political movements — the antislavery movement, the civil rights movement, and various antiwar movements — were composed in large part of religious people who acted for explicitly religious reasons, and justified their positions using explicitly religious arguments. Would we say that opposition to slavery was illegitimate because it was mostly overtly religious? If not, then we also can't condemn opposition to cloning or abortion or same-sex marriage on these grounds.
But what about the Establishment Clause? Well, the Supreme Court has explicitly held that the Establishment Clause doesn't invalidate laws simply because their supporters backed them for religious reasons. See, e.g., McGowan v. Maryland, 366 U.S. 420, 442 (1961); Bob Jones Univ. v. United States, 461 U.S. 574 (1983); Harris v. McRae, 448 U.S 297, 319-20 (1980). And for the reasons I mention above, the Court's decisions here were correct. True, the First Amendment does bar the government from teaching religion, from requiring religious practices such as prayer, and (generally) from singling out conduct for better or worse treatment because it's religiously motivated (e.g., punishing religious animal sacrifices but not secularly motivated animal killing, or giving a sales tax exemption to religious publications but not secular ones). But it doesn't bar the government from implementing religiously-motivated prohibitions on people's conduct, whether as to murder, theft, slavery, civil rights, cloning, or abortion.
Nor do I know of any evidence that the Establishment Clause was generally understood in 1791, in 1868, or any time in between or since as discriminating against religious believers this way. It may be convenient for secularists — and I myself am not religious — to have their moral reasons for lawmaking be permitted, and have their religious rivals' moral reasons declared unconstitutional or otherwise illegitimate. But there's no basis for thinking that the Constitution embodies any such discriminatory rule.
There are lots of good arguments to oppose cloning bans, abortion bans, or bans on homosexual conduct. The supporters of such prohibitions may be wrong on moral or pragmatic grounds. But the bans aren't made invalid by the fact that many of their supporters act for religiously influenced moral reasons, as opposed to secularly influenced moral reasons.
My Upcoming Appearance on the Bob Zadek Show, Discussing the Gay Marriage Litigation
Tommorrow from noon to 1 PM Pacific time (3-4 Eastern), I will be appearing on Bob Zadek's talk radio show in San Francisco to talk about the gay marriage litigation and other related issues. Zadek is a libertarian political commentator and lawyer who hosts a weekly talk show devoted to various political and legal issues. Details on how to listen and call in are available here, including a way to listen through the internet if you are in the San Francisco area.
For my argument that bans on gay marriage are constitutionally suspect because they discriminate on the basis of sex, see here and here. In this series of posts from 2008-09, I explained why gay marriage lawsuits (at least at the state level) have been a net plus for the cause of gay rights, despite the political backlash that they generated.
We will likely discuss both questions during the show, as well as others, such as whether or not government should be involved in the business of defining marriage at all.
This American Life Retraction of the Fabricated Mike Daisey Episode on Apple and China
A very interesting episode, which strikes me as a generally admirable, thorough (hour-long!), and well-presented work. This American Life erred in not checking more thoroughly, but they seem to have done a good job of apologizing for, and to the extent possible correcting, their error. I've long been fascinated with exposures of fabrications and even of mere mistakes (if sufficiently serious); I much liked Shattered Glass, for instance, and for that matter the work of many, including our own Jim Lindgren, regarding Michael Bellesiles' Arming America. Here's Ira Glass's introduction to a press release about the episode, which captures well the tone of the piece:
Ira writes:
I have difficult news. We've learned that Mike Daisey's story about Apple in China – which we broadcast in January – contained significant fabrications. We're retracting the story because we can't vouch for its truth. This is not a story we commissioned. It was an excerpt of Mike Daisey's acclaimed one-man show "The Agony and the Ecstasy of Steve Jobs," in which he talks about visiting a factory in China that makes iPhones and other Apple products.
The China correspondent for the public radio show Marketplace tracked down the interpreter that Daisey hired when he visited Shenzhen China. The interpreter disputed much of what Daisey has been saying on stage and on our show. On this week's episode of This American Life, we will devote the entire hour to detailing the errors in "Mr. Daisey Goes to the Apple Factory."
Daisey lied to me and to This American Life producer Brian Reed during the fact checking we did on the story, before it was broadcast. That doesn't excuse the fact that we never should've put this on the air. In the end, this was our mistake.
We're horrified to have let something like this onto public radio. Many dedicated reporters and editors – our friends and colleagues – have worked for years to build the reputation for accuracy and integrity that the journalism on public radio enjoys. It's trusted by so many people for good reason. Our program adheres to the same journalistic standards as the other national shows, and in this case, we did not live up to those standards.
A press release with more details about all this is below. We'll be posting the audio of the program and the transcript on Friday night this week, instead of waiting till Sunday.
Edward Champion (Reluctant Habits) has a summary of the episode, which strikes me as generally sound, though I recommend that you listen to the whole episode. Champion also reports that the theaters in which Daisey usually performs his monologues — which make much the same assertions as Daisey's This American Life item did, and which appear (at least according to Ira Glass) to be presented as fact — are not stepping up to correct the errors or apologize for them. That strikes me as quite troubling, though I'd certainly be glad to hear more facts on the subject. Thanks to InstaPundit for the pointer.
Senators Concerned about "Secret" Patriot Act Program
The NYT's Charlie Savage has an interesting report that begins:
For more than two years, a handful of Democrats on the Senate intelligence committee have warned that the government is secretly interpreting its surveillance powers under thePatriot Act in a way that would be alarming if the public — or even others in Congress — knew about it.
On Thursday, two of those senators —Ron Wyden of Oregon and Mark Udall of Colorado — went further. They said a top-secret intelligence operation that is based on that secret legal theory is not as crucial to national security as executive branch officials have maintained.
In Defense of Rutherford B. Hayes
In a recent speech, President Obama attacked former President Rutherford B. Hayes (1877-1881). As Politico reported:
Speaking about the need to develop new sources of American energy in Largo, Md., Obama used our 19th president to illustrate a failure of forward-thinking leadership.
"One of my predecessors, President Rutherford B. Hayes, reportedly said about the telephone: 'It's a great invention but who would ever want to use one?'" Obama said. "That's why he's not on Mt. Rushmore."
"He's looking backwards, he's not looking forward. He's explaining why we can't do something instead of why we can do something," Obama said. "The point is there will always be cynics and naysayers."
The telephone quip is often attributed to President Hayes, but it turns out to be completely false — a "four pinocchio" falsehood. As New York reports, historians have a different view of the 19th president who, it turns out, was quite taken by the telephone and quite supportive of new technologies.
[Rutherford B. Hayes Presidential Center's Nan] Card noted, Hayes was not only the first president to have a telephone in the White House, but he was also the first to use the typewriter, and he had Thomas Edison come to the White House to demonstrate the phonograph. "So I think he was pretty much cutting edge," Card insisted, "maybe just the opposite of what President Obama had to say there."
Administration Proposes Contraception Compromise
Yesterday, the Department of Health and Human Services proposed a compromise to quell concerns about the contraception mandate. Although the intent to offer a compromise had been announced before, HHS did not outline an actual proposal and initiate a proposed rulemaking until yesterday. The proposal largely follows what the administration announced previously, with the exception of the provisions governing self-insured plans, which are likely to remain the biggest sticking point for the policy.
The Los Angeles Times reports:
Under fire from leading Roman Catholic hospitals and other institutions, the administration has proposed shifting the cost of providing birth control coverage onto insurance companies, while prohibiting those insurers from passing on the additional cost to employers.
But it was unclear what this would mean for large, religiously affiliated employers that self-insure rather than hire insurance companies to assume the risk of providing health benefits to their employees.
In a notice released Friday, the Department of Health and Human Services suggested these self-insured employers could pass the cost of contraceptive coverage to whomever administers their health benefits. Large employers typically contract with insurance companies to handle billing and other administrative tasks associated with providing health benefits.
These administrators would then use funds from other sources, such as rebates they might receive from drug makers, to offset the cost of the contraceptive benefit, according to administration officials.
The Obama administration also suggested that new national health plans to be set up under the law could be required to offer supplemental contraceptive coverage to employees of religiously affiliated institutions.
It remains to be seen whether this proposal addresses the legal and religious liberty concerns initially raised by the mandate, and whether the administration has sufficient legal basis to shift responsibility for the mandate from insurers to plan administrators.
At the same time, HHS finalized a separate regulation governing contraception coverage ni studenthealth plans offered by universities. According to the LAT:
In a separate regulation posted Friday, the administration indicated that student health plans at religiously affiliated colleges and universities that do not self-insure would also have to cover contraceptives without cost-sharing, but the costs would have be borne by the insurers.
Here are the HHS announcement and the Federal Register notices.
P.J. O'Rourke on Koch v. Cato
P.J. O'Rourke, who has been designated an H.L. Mencken Research Fellow at the Cato Institute, discusses the Koch-Cato kerfuffle in The Weekly Standard. It begins:
Ideological snits and quarrels are the rightful province of feckless leftists. Their neverending dissensions give them something to Occupy (as it were) their time and distract them from making mischief. Sometimes these leftists are not so feckless and make the mischief of seizing power. Then they chop off each other's heads with their logic-chopping, to the general relief of their neighbors. Ideological snits and quarrels are goods upon which a high value may be placed. And I, for once, am willing to be a socialist and freely redistribute them to our enemies.
We who hold the truth to be self-evident that all men are created equal and endowed with unalienable rights to life, liberty, and no less than an 8:1 ratio of gin to vermouth in our martinis stand above such petty arguments of political doctrine. Except when we don't. And now we have in our midst a knockdown, a drag-out, a Katy-bar-the-door.
The wonderfully conservative Koch brothers are trying to take control of the magnificently libertarian Cato Institute, a spectacularly stupid thing to do.
O'Rourke also addresses his own relationship with Cato:
And because I know these people I won't pretend I don't have a dog in the fight. I've been friends with Ed Crane and Cato executive vice president David Boaz for 25 years. Cato has aided me with almost everything I've written about politics. Maybe saying so will lower the institution's prestige enough that the Koch brothers will leave it alone. If they prevail they'll lose Cato's H.L. Mencken Research Fellow. (The position—unpaid and worth it—was conferred on me by Crane back when the insensitive language in Mencken's diary was shocking the kind of people who'd later forget to be shocked by Bill Clinton and Monica Lewinsky.)
More to the point, the Koch brothers will lose the think tank's impressive roster of thinkers and scholars. I haven't polled them as to who would stay and who would go under a Koch regime. But, as I said, I know libertarians. If the Kochs win the pot, they'll have to piss in it. It will be empty otherwise.
O'Rourke concludes observing that the Kochs may be "good citizens with honest wealth who've put their money where their minds are," but with the Cato Institute, they are acting like "fools."
March 16, 2012
The Machinery of Criminal Justice #6: Equality, Vengeance, and Competence
In the past week's posts about my new book, I've sketched out some of the hidden costs of professionalizing our system and suggested ways in which we might deliberately slow down our speedy, impersonal assembly-line justice. This set of posts has focused on one aspect: giving victims larger roles. (The book offers an even more radical proposal for turning sentencing back into a victim- and defendant-centered morality play, which I call restorative sentencing juries, but I can't go into that here.)
Naturally, including victims gives rise to various fears. Today I'll discuss three such fears: vengefulness, inequality, and unprofessionalism. Each set of concerns is legitimate, but manageable if not overblown.
First, we tend to assume that victims thirst for revenge. Give victims power, one might think, and they will simply take it out of defendants' hides. To this way of thinking, criminal justice is a zero-sum game, and making victims happier necessarily comes at the expense of defendants, tilting the playing field against them.
But contrary to what one might expect, victims are not reflexively punitive. Empirical studies find that participation by victims does not lead to harsher sentences. Thus, giving victims voices in the process need not produce harsher outcomes, particularly because plenty of safeguards would remain. A neutral judge or jury would have to authorize any conviction or punishment and would weigh the victim's input against the defendant's and all the other evidence. A prosecutor would still be able to override a victim's vengeful, selfish, or otherwise unbalanced requests.
What victims care about is not so much the substantive outcome as whether they are treated fairly and respectfully along the way, including whether they are listened to and taken seriously. Keeping victims informed, letting them speak, and giving them their day in court makes them more satisfied. That is not a zero-sum game; both victims and defendants can benefit from being treated respectfully.
Of course, some victims will desire more punishment than defendants want; that is why judges and juries must sit in judgment. But a process that listens to and respects both sides will earn more legitimacy in everyone's eyes, regardless of the substantive outcome. And procedures that encourage catharsis, apology, and forgiveness may help victims to release their anger and find closure without demanding the maximum sentences.
Second, heeding victims would seem to invite inequality. Some victims suffer more or are more vengeful than others, and some are more attractive or more articulate.
Though many philosophers deride it as moral luck, harm to victims is undeniably central to popular intuitions of justice. For instance, whether a victim nimbly dodges a knife thrust can make all the difference between a conviction for murder, mayhem, or just aggravated assault. Each defendant may have the same mental culpability but receive vastly different sentences based on the victim he chose to victimize.
Gauging the harm to a unique human being, not a faceless abstraction, requires evidence of how that particular victim suffered. A victim's expressed feelings and wishes are powerful evidence of the psychological harm that he has suffered or from which he has recovered. And many people's intuitions put significant weight on victims' wishes; they implicitly recognize that victims own a share of the right to punish.
One may legitimately worry that judges and juries may favor attractive, white, young, female victims. But sentencing guidelines, rules of evidence, and cautionary jury instructions can limit discrimination. Moreover, despite decades of regulations, scholars still find sentence disparities based on the race, sex, and class of victims. Rich, powerful victims already find ways to influence prosecutors and make their voices heard; poorer victims need formal ways to participate to achieve an equal footing.
Finally, efforts to treat like cases alike, such as mandating charging and minimum sentences, often wind up treating unlike cases alike. That is the lesson of my analysis of prosecutorial power: rules meant to ensure substantive equality often become plea-bargaining chips that turn on insiders' interests rather than blameworthiness or harm. Perhaps, then, it is worth relaxing our fruitless quest for perfect equality in favor of the other values of victim participation.
Indeed, perhaps local participation by victims and the public may be even better at promoting equality than top-down judicial rules have been. Local democracy might perhaps defuse the insider-outsider tension, instead of driving outsiders to jack up sentences while insiders covertly and inconsistently undercut them. Over the last decade, in areas such as racial profiling, capital punishment, and crack cocaine sentencing, legislatures and governors have pushed for more criminal justice equality where judges have failed. Voters care about equality. Populism, in short, need not mean racism.
Third, transferring power from prosecutors to victims would seem to slight the benefits of professional expertise. But critics of victims' rights overlook prosecutors' flaws. Prosecutors are far from perfect guardians of the public's and defendants' interests. They have plenty of self-interests of their own, which can make them too harsh in some cases and too lenient in others. The alternative to a victim's check on prosecutors is effectively no check at all. Prosecutors can check victims' excesses, but likewise we need victims to check prosecutors' excesses.
At one extreme, lawyers can become cynical. Some of the commentators on these posts, like some of the lawyers whom I interviewed for the book, doubt that there is such a thing as justice or that criminal justice could have anything to do with justice. Others burn out, drained and beaten down by the volume of work.
Many others become jaded, dulled by time and the steady drumbeat of crime. They may have been drawn to the profession to do justice and serve the public, but over time the focus on case-processing statistics and the legal mindset dulls the freshness of their perspectives. They need to be reminded of how their constituents, the outsiders, view justice and how they need to be treated.
I'm a former federal prosecutor: I wanted to do justice, and I was proud to engage in public service. The bulk of the lawyers I practiced with, against, and in front of were good, honorable people. But a little bit of distance from practicing law has helped me to see what I and many other practicing lawyers gradually paid less attention to–the central role of moral justice and flesh-and-blood people. Insiders may come to see defendants and victims as statistics, but outsiders taking a fresh look see complex, flawed, real people.
G.K. Chesterton put it best: "[T]he horrible thing about all legal officials, even the best, . . . is not that they are wicked . . . , not that they are stupid . . . , it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of justice; they only see our own workshop." Juries existed to bring in a steady rotation of outsiders, whose fresh eyes could see the wounded victim and "the prisoner in the dock" in all their complexity before "the awful court of judgment."
Ours is an age that worships professionalism and bureaucracy; we are disciples of Max Weber. Professionalism has its virtues, but we are sometimes blind to its vices and shortcomings. In the book, I reach back to an earlier American tradition, that of Alexis de Tocqueville and populist self-government.
Criminal justice should fundamentally be about justice, and justice is fundamentally about morality. Idealism should guide us even as practicality brings it down to earth. Only by forcing insiders and outsiders, lawyers and laymen to see through one another's eyes and take one another seriously can we reap the benefits of both expertise and fresh perspectives.
It's been a pleasure blogging here this week. Thank you for your attention.
Eugene Volokh's Blog
- Eugene Volokh's profile
- 7 followers
