Category: Individual Liberty

breach-entry-gwle-lead-600x384.1421390599“Law professors and lawyers instinctively shy away from considering the problem of law’s violence,” says Yale law professor Stephen L. Carter. “Every law is violent. We try not to think about this, but we should.”

Carter, one of the most astute legal minds in America, rightfully points out the inherent violence embedded in the law. But he draws some unfortunate conclusions from this fact:

On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.

This is by no means an argument against having laws.

It is an argument for a degree of humility as we choose which of the many things we may not like to make illegal. Behind every exercise of law stands the sheriff – or the SWAT team – or if necessary the National Guard. Is this an exaggeration? Ask the family of Eric Garner, who died as a result of a decision to crack down on the sale of untaxed cigarettes. That’s the crime for which he was being arrested. Yes, yes, the police were the proximate cause of his death, but the crackdown was a political decree.

The statute or regulation we like best carries the same risk that some violator will die at the hands of a law enforcement officer who will go too far. And whether that officer acts out of overzealousness, recklessness, or simply the need to make a fast choice to do the job right, the violence inherent in law will be on display. This seems to me the fundamental problem that none of us who do law for a living want to face.

But all of us should.

On my first reading of this passage I completely agreed with Professor Carter (who is, unfortunately, no relation). But after giving it some thought I realized it obscures more than it illuminates. To understand where he errs, we must first ask, “What is the law?”
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Over the past decade media coverage of the problems surrounding indigent defense has been increasing. For example, The American Civil Liberties Union (ACLU) is currently suing the state of Utah for failing to uphold that 6th Amendment which now provides opportunities for government provided criminal defense. The ACLU is claiming that Utah fell short of its obligation to provide attorneys to criminal defendants who cannot afford to hire one. While the merits of the case have yet to be properly sorted out, what is true is that public defenders offices are under much needed scrutiny.

With the 50th anniversary of the 1963 Gideon v. Wainwright decision back in 2013 a flurry of articles were published that highlighted some of the injustices in the public defense system that the Gideon verdict created. The Gideon verdict required states to provide defense attorneys, especially for the poor.

In 2013, a New York Times article by Lincoln Caplan on the anniversary of the Gideon decision summarized several of current problems around the United States regarding public defense. The article highlighted the problems with meeting the requirements of Gideon at the state level where 95 percent of America’s criminal trials take place. The best programs in the United States still struggle to meet the high number of cases that require public defenders. Caplan’s article highlights the Miami public defender’s office which handles far above the American Bar Association’s recommendation of 150 cases per year for a attorney. The demand in Miami has reached 500 cases a year, and has far outpaced the funding for indigent defense. The important distinction the author makes in this article is that not only is financing of public defense an issue, but the general attitude towards the poor the system has created. It is an attitude that Caplan and others describe as “contempt.” (more…)

Today is Flag Day. You probably didn’t know. You probably didn’t care.

Unless you’re Boy Scout or a member of the VFW, you probably don’t give the American flag much thought. And you likely don’t have any flags in your home.

white-flagI don’t either. Not really. What I do have hanging on the walls of my home office are several variations of Jasper Johns’s paintings of the American flag.

I have no idea what Johns thought about the works or what he intended by the paintings. In fact, I’ve actively avoided finding out so that his artistic intent doesn’t interfere with my own personal, peculiar interpretation. For me, seeing these American Flags helps me to better see the American Flag.

Normally when I look at an American flag I see . . . an American flag. Although not consciously recognized, there is a certain semiotic understanding that the flag (a cloth with stars and stripes) is merely the signifier (the form the symbol takes) while the signified (the concept it represents) is America. Of course this leads to another level of recursion since “America” is also a sign that stands in for a variety of signified concepts, both tangible (our homeland) and intangible (our ideals).

green-flagWhen I look at Johns’s Flags, though, I see something different: an abstract representation of an abstract symbol that itself represents abstract concepts. In looking at the paintings I no longer see “American Flag” but see past the symbol to what it represents, such as liberty and civic virtue. The paintings help me to better see the authenticity of the flag in a way that I often miss when I encounter it flying on a flagpole.

Without Johns’s painting to keep me focused, it would be easy for me to see the American Flag in a clichéd manner. Like how President Obama used to think of flag lapel pin.

That seems to have changed, for I noticed the other day that the president was wearing just such a pin. I had almost forgotten why he had stopped.
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public+defenderSince the landmark Supreme Court decision Gideon v. Wainwright (1963) every state has developed a system of public defense. The decision guaranteed that those accused of felony offenses are entitled to a lawyer under the rights outlined in the 6th Amendment, which include, the right to a jury trial, a public trial, and pertaining to Gideon, “to have the assistance of counsel for his defense.” In the wake of the Gideon decision each state was required to develop a system of public defenders to represent those who did not have a legal counsel, and especially those who could not afford a lawyer. Because of low funding for public defense, and the increasing number of cases filling courtrooms, more states are requiring defendants to pay a fee for their assigned defender—whether they are found guilty or not.

An April 2016 New York Times article Fordham University Law professor John Pfaff, highlights more weaknesses in the public defense world and in the odd funding mechanism. Forty-three states now require defendants to pay for a public defender, even though the only reason they have a public defender in the first place is because they cannot afford a lawyer. The Times article highlights the current policy in South Dakota where a defendant is required to pay $92 dollars an hour regardless of the verdict. The result of this policy is that the defendant might have to pay hundreds of dollars a day to be proven innocent for a crime for which he or she was mistakenly arrested.
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I want to be very clear from the outset that moral concerns surrounding transgender identity are not unimportant. But in the likely event that we don’t come to any national consensus on that question any time soon, it is important not to overlook other moral and social concerns that are far more pressing. In particular, there are legitimate concerns regarding safety and privacy, no matter which side one favors, but resorting to the force of law will leave some real victims vulnerable.

On the one hand, the Anti-Violence Project’s 2014 Report on Lesbian, Gay, Bisexual, Transgender, Queer, and HIV-Affected Hate Violence found that compared to violence among the general population, “Transgender women [i.e. biologically male] survivors were 1.6 times more likely to experience physical violence and 1.6 times more likely to experience sexual violence, when compared with other survivors.” I have seen headlines connecting this violence with restroom use in the past, but now that the issue has become politicized those stories are harder to locate. In any case, privacy and safety are real and major concerns for many. We should not be indifferent to this.

On the other hand, according to the CDC,

  • Nearly 1 in 5 (18.3%) women and 1 in 71 men (1.4%) reported experiencing rape at some time in their lives.
  • Approximately 1 in 20 women and men (5.6% and 5.3%, respectively) experienced sexual violence other than rape….

Again, privacy and safety are real and major concerns here. We should not be indifferent. (more…)

cracked-flag-fragment-america-dividedThe fabric of American society is tearing at the seams. Whether witnessed through the disruptive insurgencies of Donald Trump and Bernie Sanders or the more mundane fissures of pop culture and daily consumerism, Americans are increasingly divided and diverse.

Yet even in our rash attempts to dismantle Establishment X and Power Center Y, we do so with a peculiar nostalgia of the golden days of yore. You know, those days when institutions mattered?

This is particularly evident in the appeal of Mr. Trump, whose calls to burn down the houses of power come pre-packaged with a simultaneous disdain for the power of bottom-up diversity and the liberty it requires. Once the tattered castle on the hill is torched to the ground, we’re told, we will receive a greater castle on a higher hill with a far more deserving king. The scepter will be yuge, and with power restored to the hands of a man shrewd enough to exploit it, surely we will “win” again. (more…)

Feeling the Bern

Alvino-Mario Fantini, editor-in-chief of the The European Conservativeand Michael Severance, operations manager of Istituto Acton, co-wrote an op-ed for The Catholic World Report Are Pope Leo XIII and Pope Saint John Paul II “feeling the Bern”? The article was published yesterday as a concluding reflection on Acton’s April 20 Rome conference “Freedom with Justice: Rerum Novarum and the New Things of Our Time“.

The op-ed  summarizes some of the main moral theological and anthropological points expressed last Wednesday — especially those made by the theologian of the papal household Fr. Wojciech Giertych, OP. Fr. Giertych  reminded everyone present that Pope Leo XIII, the first pope in centuries not to have temporal power over the Papal States, did not have a state-centric approach to anthropology. Pope Leo, said Giertych, “insisted that by nature man precedes the state – and independently of it he has the right to provide for his own needs (RN, 7).” (more…)