AN ESSAY
I tried to answer this question during a conversation I had with one of my best friends. We often talk about philosophy and power, and we both agreed that "shame" and "guilt" are "kindred spirits." They are both strongly negative words. No one likes to feel guilty or shameful. They both imply that you have done "wrong." But are they really the same? That's the question.
Both "shame" and "guilt" flow from an acknowledgment of power. We only feel shameful or guilty when we recognize that we have failed to conform to a standard that we probably did not make. Someone else made the standard, someone we recognize as "superior" to us. In this sense, both guilt and shame emanate from below; the person who makes the rules that spawn guilt or shame in us feels at most "disappointed" that his "subject" broke a rule. Shame and guilt, then, are for those who occupy an inferior power position. This is why Nietzsche called shame and guilt Sklavenmoral--Slaves' Morality. The rule-maker (or "master") does not feel them. Rather, he causes others to feel them because they do not adhere to his standards. They solidify his grasp over them.
But this does not mean that a single "superior person" causes others to feel guilt or shame. While a "superior person" may have originally laid down external standards, in most cases today external standards emanate from institutions. Power is deeply entrenched in numerous places in manifold ways. Power radiates in families, in schools, in laws, in social settings and in professional relationships. It exists in commerce and in property. Most relationships involve a party with advantages and a party without them. That disparity provides an opportunity for dominance by one party over the other. And this is the setting in which guilt and shame flourish.
Guilt is more extrinsic that shame. Although both guilt and shame flow from an acknowledgment of power, the power that induces guilt is predominantly external. When we feel guilty, we feel bad because we know we have transgressed against some common rule or understanding. Our negative emotion springs from our awareness that we have violated an external expectation. This includes everything from the criminal law (an external authority about which we are conscious) to our parents (an external authority whose commands we respect). A person feels guilty when he steals or when he knowingly fails to attend a dinner he promised his parents he would attend. In both cases, the person knew he was obligated to do something by some external authority, yet he failed to adhere to the obligation. That conscious failure creates guilt.
With guilt, then, the inquiry is external. We feel guilty only when we acknowledge that some external authority holds power over us. When we break its rules, we feel guilt to the extent that we deviate from the "expected standard." Guilt requires an acquiescence to "superior" people or ideas. It necessarily makes the subject "inferior" to the standard he violates. And unlike shame, it can be objectively measured: The "superior" party can declare a subject "guilty" because the subject verifiably deviated from an external standard. This is why the law uses the term "guilt" rather than "shame." Guilt is a conclusion as well as an emotion. You just need to see whether a person met the standard.
Not so with shame. Although shame might feel similar to guilt, it flows from an entirely different conceptual source. Shame has internal origins. A person feels ashamed when he fails to meet a standard that he expects from himself, not a standard some external authority set for him. An external authority might encourage a person to expect certain behavior from himself. But in the final analysis, only an individual can decide whether to adhere to certain principles or beliefs. In this sense, shame intertwines with honor. An honorable person swears to himself that he will not act in a certain way to achieve certain results. He expects certain behavior from himself. He commits himself to certain principles and beliefs. When he fails to act in the way he expects, he feels shame, not guilt. He failed to meet his own standard, not an external one.
Consider a man who commits himself to respecting others and telling the truth. He makes these commitments because he personally believes that respect and truth are honorable principles. If one day he lies and disrespects a competitor to win a job, he deviates from his own standard. If he truly has honor, he would feel ashamed for breaking his own commitments to good principles. He might also be guilty of violating some external standard against perjury or untruthfulness, but that has nothing to do with his own internal transgression. And that internal violation creates shame. In short, shame is ethical (internal), while guilt is legal (external).
But shame still requires an "inferior" mental outlook. Although an honorable person decides for himself whether to believe in certain principles, in many cases he does not decide freely. The decision whether to believe certain things often depends on social circumstance and expectation. An external rulemaker has as great an interest in creating strong internal shame in his subjects as he does in crushing them under external guilt. A rulemaker wants his subjects to decide to believe in principles that could induce individual shame. All this inures to his benefit. For example, a person learns to believe that "it is good to respect private property." He also learns that it is "illegal to steal." If he steals something, he suffers both shame and guilt: On the one hand, he failed to meet his own internal standard about respecting private property; on the other, he knowingly violated the external command not to steal others' property.
Both emotions are negative. They flow from different sources. But in the end, they both serve to reinforce the "superior rulemaker's" control over his subjects. Guilty and shameful people are easier to manage than willful ones.
Shame seems purer than guilt. It is more individual than guilt because it depends on the individual's own moral ordering. But if a person's own moral ordering is not voluntary--and if individual moral ordering merely substitutes for external rulemaking--then the net effect of shame is no different than guilt: They both reinforce dominant values by inducing negative emotions in those bold enough to "transgress."
Friday, November 20, 2009
Thursday, November 19, 2009
YOUR ENTIRE LIFE IS AN EXTERNALITY
AN ESSAY
When I studied property law, I learned the word "externality." Before law school, I understood the word to mean what it says: "external to something else." But I soon found out that in the law, words do not always mean what they say in plain English. No, they function as shorthand for other concepts. And sometimes those concepts bear no relationship at all to the word that signifies them.
In both legal and economic terms, an "externality" refers to the effect on others when two people conduct a lawful transaction. It also refers to the effect on others when one person lawfully uses his land. To be blunt, "externalities" mean the shit everyone else has to endure because others act within their legal rights. After all, the law empowers certain people to act in more sweeping ways than others. An oil company has much more power to act in sweeping ways than some private farmer next door. And when more powerful people act within their rights, they can produce an enormous--though not intentional--effect on others' lives.
In property law, "externalities" are both obvious and subtle. As a general rule, our society holds up land ownership as a talisman. Everyone strives to own his own patch of earth to do as he wills with it. Yet by "doing what he wills" with his own land, our archetypal landowner may unintentionally injure someone else. How can this be? Well, what if he wants to open an industrial tannery on his land? He's master of his land, right? He wants to make money on his land, right? Isn't that what we're supposed to do in America, make as much money as possible from our land?
If he opens a tannery, he exercises his rights as a property owner. Yet he makes noise, produces foul odors and makes life miserable for everyone else around him. Those are externalities that flow from his lawful land use.
He's not breaking the law; he's living the American dream. Problem is, when some people live their American dream, they give people around them nightmares. That's what externalities are all about.
But I'm not writing today to put down property owners. As a cynic, I am prepared to believe that most people will use their land only to enrich themselves. If they make everyone else's life difficult in the process, they could care less. As long as they don't face a nuisance suit for using their land as they wish (ie, that would cost more money than merely continuing the objectionable land use), they will keep on using it in a way that brings in the most cash. That's American life: Cost-benefit analysis. Effects on others rarely come into the equation unless those effects would result in greater costs than benefits. Even courts subscribe to this view. They won't let a few poor neighbors complain about pollution from a nearby auto plant because the auto plant keeps people employed. Sure, the land use might be horrible--and it might make the neighbors' existence miserable--but their suffering is a "bearable cost" given the "ultimate benefits" that flow from it. Shutting down the auto plant might solve the neighbors' ills, but it would cost hundreds more their jobs. So the law lets the more powerful landowner use his land as he pleases, externalities or not. That's just the way our society values things.
But externalities do not just exist in property law. They are all over our lives. After all, we are consuming animals. There are not enough resources to go around. By living well for ourselves--even innocently--we might deny others the chance to live well. For example, if a person gets sick, he becomes an externality on everyone who must care for him. His life drags others down with it. It imposes costs. It strains emotions. By living his life, he makes it difficult for others to live theirs.
In essence, sometimes just staying alive on this planet produces a burdensome effect on others. Every time one person enjoys a meal, he eats food that will not go to someone else who needs it. Every time one person falls in love with another, he denies that person's love to someone else who wants it. Every time one person gets a job offer, someone else had to get a rejection letter. Every time a corporate board awards bonuses to its members, it reduces the available funds for employee raises. Whenever a child is born, it imposes a staggering financial, emotional and social burden on the family.
These are all perfectly lawful things to do. Yet they produce negative effects on others' lives. People don't mean to produce these effects on others. People are simply trying to survive in a world that requires consumption. But these effects are inevitable because resources are limited. When one person succeeds, another must fail. When one person relaxes, another must toil.
Yet where would we be if we constantly worried about externalities? I think we must merely accept the fact that our continued existence will impose substantial difficulty on many people, both far and wide. To some extent, we must resort to selfishness in order to feed ourselves and to secure our bodily health. This may sound bleak. But if you think about it, human bodily existence is quite bleak. There is nothing grandiose about our biological processes: We eat, excrete, grow hair, breathe, make money, buy things, strive to experience positive emotions, have sex, groom ourselves and do our best to avoid pain. These are our "goals" as living creatures. And when we fulfill them, we necessarily impose costs on others. For every goal we reach, someone else did not make it.
True, we rarely want to make others suffer by pleasing ourselves. But that is the price of survival in a world of limited resources. We must simply accept the fact that our own quest for comfort and happiness in life impacts many other people.
When I studied property law, I learned the word "externality." Before law school, I understood the word to mean what it says: "external to something else." But I soon found out that in the law, words do not always mean what they say in plain English. No, they function as shorthand for other concepts. And sometimes those concepts bear no relationship at all to the word that signifies them.
In both legal and economic terms, an "externality" refers to the effect on others when two people conduct a lawful transaction. It also refers to the effect on others when one person lawfully uses his land. To be blunt, "externalities" mean the shit everyone else has to endure because others act within their legal rights. After all, the law empowers certain people to act in more sweeping ways than others. An oil company has much more power to act in sweeping ways than some private farmer next door. And when more powerful people act within their rights, they can produce an enormous--though not intentional--effect on others' lives.
In property law, "externalities" are both obvious and subtle. As a general rule, our society holds up land ownership as a talisman. Everyone strives to own his own patch of earth to do as he wills with it. Yet by "doing what he wills" with his own land, our archetypal landowner may unintentionally injure someone else. How can this be? Well, what if he wants to open an industrial tannery on his land? He's master of his land, right? He wants to make money on his land, right? Isn't that what we're supposed to do in America, make as much money as possible from our land?
If he opens a tannery, he exercises his rights as a property owner. Yet he makes noise, produces foul odors and makes life miserable for everyone else around him. Those are externalities that flow from his lawful land use.
He's not breaking the law; he's living the American dream. Problem is, when some people live their American dream, they give people around them nightmares. That's what externalities are all about.
But I'm not writing today to put down property owners. As a cynic, I am prepared to believe that most people will use their land only to enrich themselves. If they make everyone else's life difficult in the process, they could care less. As long as they don't face a nuisance suit for using their land as they wish (ie, that would cost more money than merely continuing the objectionable land use), they will keep on using it in a way that brings in the most cash. That's American life: Cost-benefit analysis. Effects on others rarely come into the equation unless those effects would result in greater costs than benefits. Even courts subscribe to this view. They won't let a few poor neighbors complain about pollution from a nearby auto plant because the auto plant keeps people employed. Sure, the land use might be horrible--and it might make the neighbors' existence miserable--but their suffering is a "bearable cost" given the "ultimate benefits" that flow from it. Shutting down the auto plant might solve the neighbors' ills, but it would cost hundreds more their jobs. So the law lets the more powerful landowner use his land as he pleases, externalities or not. That's just the way our society values things.
But externalities do not just exist in property law. They are all over our lives. After all, we are consuming animals. There are not enough resources to go around. By living well for ourselves--even innocently--we might deny others the chance to live well. For example, if a person gets sick, he becomes an externality on everyone who must care for him. His life drags others down with it. It imposes costs. It strains emotions. By living his life, he makes it difficult for others to live theirs.
In essence, sometimes just staying alive on this planet produces a burdensome effect on others. Every time one person enjoys a meal, he eats food that will not go to someone else who needs it. Every time one person falls in love with another, he denies that person's love to someone else who wants it. Every time one person gets a job offer, someone else had to get a rejection letter. Every time a corporate board awards bonuses to its members, it reduces the available funds for employee raises. Whenever a child is born, it imposes a staggering financial, emotional and social burden on the family.
These are all perfectly lawful things to do. Yet they produce negative effects on others' lives. People don't mean to produce these effects on others. People are simply trying to survive in a world that requires consumption. But these effects are inevitable because resources are limited. When one person succeeds, another must fail. When one person relaxes, another must toil.
Yet where would we be if we constantly worried about externalities? I think we must merely accept the fact that our continued existence will impose substantial difficulty on many people, both far and wide. To some extent, we must resort to selfishness in order to feed ourselves and to secure our bodily health. This may sound bleak. But if you think about it, human bodily existence is quite bleak. There is nothing grandiose about our biological processes: We eat, excrete, grow hair, breathe, make money, buy things, strive to experience positive emotions, have sex, groom ourselves and do our best to avoid pain. These are our "goals" as living creatures. And when we fulfill them, we necessarily impose costs on others. For every goal we reach, someone else did not make it.
True, we rarely want to make others suffer by pleasing ourselves. But that is the price of survival in a world of limited resources. We must simply accept the fact that our own quest for comfort and happiness in life impacts many other people.
Wednesday, November 18, 2009
OFF TODAY
Last night I started sniffling, coughing and sneezing, so I took some cold meds. They knocked me out quite effectively: I was asleep by 9:30. My mind is still not clear, so I think I'll take a day off from writing to rest. I tried to sit down and write a piece this morning, but I found my mind wandering all over the place. Antihistamines make you think the strangest things. So the writing will have to wait until tomorrow.
I feel better than yesterday, though, so that's a good sign.
I am just glad that my ideas keep flowing and my creativity is still intact. I can handle a cold now and then, but I'd be really upset if I lost my inspiration. Thankfully, that's not something that dies easily.
See you very soon.
Oesterhoudt
I feel better than yesterday, though, so that's a good sign.
I am just glad that my ideas keep flowing and my creativity is still intact. I can handle a cold now and then, but I'd be really upset if I lost my inspiration. Thankfully, that's not something that dies easily.
See you very soon.
Oesterhoudt
Tuesday, November 17, 2009
AMERICAN TROOPS DON'T NEED MODERN WEAPONS TO BEAT INSURGENTS AND TERRORISTS
A WORD FROM THE FRONT
By : Colonel Harold F. Ehrenkranz, United States Army, 443rd Infantry Regiment, Kabul, Afghanistan
We are winning the war. We easily defeated Saddam Hussein in 2003 and we drove Osama bin Laden like a rat from his cave. No matter what the critics back home say, the United States military has kicked terrorist ass no matter where it has dared to bare itself.
And why shouldn't we? After all, the United States military has advanced equipment. We know where the insurgents are before we attack them. We have unmanned reconnaissance drones. We have helicopter gunships with laser tracking devices. We even have C-130 assault planes that circle above terrorist camps and blast them with a 75mm airborne artillery cannon. Come on, people, how can we really lose once these buggers come out and fight? Yeah, we've lost a few GIs because the terrorists fight like cowards. But when push comes to shove, we napalm their brown butts before they can say: "Allah, Akbar."
But our battlefield superiority has sparked critics to complain: "It's not a fair fight." They say that it's dishonorable for the United States to use laser-guided bombs, choppers, night-vision scopes and 50-caliber machine guns against goatherds armed with pikes and shovels. Although we acknowledge that our enemies do not enjoy the same technological advantages that we do, we must point out that military operations are not supposed to be fair. Fairness means you give the other fellow an ample opportunity to win. Fairness means he has roughly the same training and equipment as you. Well, that doesn't make sense in war. It's better to fight unfairly and win than to fight fairly and lose. Hey, it's not our problem that Iraq doesn't have an air force.
Still, as soldiers we do not like the implication that we are cheaters. Honor is very important to a soldier. Although we want to win our battles, we feel somehow cheap when we obliterate our opponents with overwhelming modern firepower. I mean, there's not much honor in calling down a chopper strike on a house filled with 5 camel-herders armed with bolt-action rifles. Sure, it's an easy win, but what did we prove as soldiers? We did not prove our superior training. We simply proved that we have greater technology and we can kill without risk to ourselves.
As an honorable United States Army officer, I am prepared to meet any challenge to my honor. I am prepared to say that American soldiers are tougher, better trained and deadlier than any insurgent on earth. We don't need fancy night-vision goggles, airpower or laser-scopes to beat turban-wearing shepherds. We can take them blindfolded with one hand tied behind our backs. We are better men than these cowardly terrorists. That's why I am proud to announce that my regiment will drop all its modern weapons next month and fight the terrorists at an intentional disadvantage.
Next month will be "Redcoat Month" in the 443rd Infantry Division. In order to show that American troops are better men than these lousy insurgents, we commit to fighting in the open. We commit to refusing all air support. We even commit to dropping our khaki camouflage uniforms and donning 18th Century British red uniforms. We will not even use modern weapons. We are so confident that we are better soldiers than these pitiful rebels that we will use only flintlock muskets with bayonets.
We'll see who's more honorable next month. We won't even follow modern battlefield protocol or tactics. We will march in line formation in daylight through enemy-controlled sectors flying flags and singing American songs. When the insurgents attack, we will hold the line and present disciplined musket fire against them. If they fight from cover, we will call them dishonorable cowards. And we will win because we are tougher soldiers who prefer honorable death to dishonorable victory.
Just let these scrappers try to ambush us. We don't need cover. We can shoot better than any Afghan farmer, even with smoothbore muskets that take 30 seconds to reload. But just in case the battle goes poorly, we reserve the right to call in our dragoons and muzzle-loading 8-pound cannons. We'll see who's tougher when the Afghan militia comes face to face with honorable American horse-drawn field guns! Just look at them. Be afraid, Mullah Omar, be VERY afraid:
We will win the war because we are Americans. We are better than the Afghanis and Iraqis not because we have superior military equipment, air power and advanced recon drones with satellite-driven global positioning capability. We are better because we are true soldiers. We can win this war without newfangled technological contraptions. Give just one American a musket and a bayonet and he can beat any disorganized Arab mob.President Obama, you don't need to send reinforcements. We have the situation well in hand. We swear to bring honor to you and the United States by defeating these rebel scum on fair terms in open combat. Forget about the air force. We refuse to sully our honor by letting pilots do our work. No, Mr. President, we will bring you the Afghan warlords' heads in a sack after we defeat their forces with muskets and pistols. Never fear; every American boy will make it home. These devious terrorists can't hurt us. Even if we march in parade step in bright red uniforms against their AK-47s and RPGs, we will prevail because we are Americans.
This is Redcoat Month. The United States will win a great and honorable victory in Afghanistan. And we will do it with a handicap. Let's see what the critics say about us then.
Monday, November 16, 2009
TERROR TRIALS IN NEW YORK : DO WE REALLY CARE ABOUT FAIRNESS?
AN ESSAY
On Friday, the U.S. Department of Justice announced that it would try several key al-Qaeda suspects for their alleged role in the 9/11 attacks. That was big news; under President Bush's direction, the Justice Department deferred exclusively to the military for handling so-called "enemy combatants" captured in the "War on Terror." Unlike President Bush, Obama decided to heed the United States Constitution and prosecute these suspects before U.S. civilian courts. After all, these detainees are not "soldiers captured in War" under the Geneva Convention, because al-Qaeda did not sign the treaty. Yet American authorities hold them on American territory for breaking American laws. In such circumstances, there is only one lawful alternative: Try them in domestic courts.
This was a significant step. But the Justice Department announced something even more significant: It would try the suspects in New York.
From a legal perspective, it makes little difference where the sovereign chooses to try a criminal defendant for violating the law. Here, the United States seeks to convict terrorists for plotting to attack the World Trade Center and ultimately destroy it. As long as the sovereign holds the defendant in his realm, he can prosecute him under the ancient principle of "personal jurisdiction over the body." If you are present in a country and you commit a crime there, you can be prosecuted for it in that country--it is very simple.
It also makes sense to try 9/11 conspirators in New York from a practical perspective. In criminal trials, venue is proper when it is easy for witnesses to get to the courthouse. Certain districts have a greater interest in trying a case than others, especially when all the "sources of proof" lie in those districts. Venue is also proper when the crime has a direct connection to the locale. Even the United States Constitution says: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const. Amd. VI. This makes common sense as well as constitutional sense. It is practical--and somehow just--to try cases in the places where the crimes happened. Every jurisdiction has a public interest in punishing wrongdoing in its own borders.
Yet there are times in which it does not make sense to try cases in the most logical places. New York seems the most fitting place to try those accused of destroying the World Trade Center. All the witnesses are there, and obviously New York has a burning local interest in punishing those who caused such havoc in its borders.
But these practical advantages spawn larger concerns. After all, the Sixth Amendment guarantees criminal defendants "a speedy and public trial by an impartial jury." U.S. Const. Amd. VI. It is also guarantees that "no State shall deny any person of life, liberty, or property, without due process of law." Id. at Amd. IV, s. 1 The Supreme Court has held repeatedly that a State deprives "a person" of "due process of law" if it does not afford him a "fair trial." For obvious reasons, 9/11 conspirators may not get a "fair trial" by an "impartial jury" in New York. That is why it might not make sense to hold the trial there.
How can any New York jury be impartial about 9/11? Daily newspapers routinely run stories about "dangerous Muslims." Bitter memory about 9/11 runs deep. Many people knew individuals who died in the attacks, or they know their families. 9/11 is a focal point for national anger; and it burns hottest in New York.
These are the people who will sit in the "New York jury pool" when the conspirators step into court in New York. Can they be impartial? Can they render a judgment free from passion, excitement, resentment, anger or emotion? Trials are fair when they are based on evidence admitted under law in open court. They are not fair when they are based on emotional reaction, prejudice or bias.
And how can New Yorkers insulate themselves from pervasive press coverage about the trial? As soon as the Justice Department announced that it would try the suspects in New York, the New York Post published a blaring headline: "NOW DIE! 9/11 Fiends Coming Back to New York for Trial--Next Stop Hell."
That headline reminded me about the famous Supreme Court case about trial publicity and Due Process: Sheppard v. Maxwell, 384 U.S. 333 (1966). Sheppard held that every criminal defendant has a right to a "fair trial free from massive, pervasive and prejudicial news coverage" that is "reasonably likely" to lead the jury to find against him based on inadmissible evidence and emotion. The case also concluded that the trial judge has a duty to control press access to the trial, and to monitor every juryman's out-of-court attention to news comment about the case. After all, according to the Court, the State provides trials in order to "adjudicate controversies, both civil and criminal, in the calmness and solemnity of the courtroom according to legal procedures." Id. at 350, 351, quoting Cox v. Louisiana, 379 U.S. 559, 583 (1965). Those "legal procedures" include the requirement that the jury base its conclusions on evidence admitted in court, not on outside sources or emotion. Id. Prejudicial and pervasive press coverage undermines these goals when it poisons an entire population against a criminal defendant. And it undermines another key goal in our justice system: Fairness.
Many people discount fairness in legal questions. Law professors used to scoff at me when I suggested that certain results in cases were "unfair" or that legal forms resulted in "unfairness." After all, the law attempts to introduce scientific certainty into the maelstrom of human existence. It attempts to govern the ungovernable. In many ways, humans are ungovernable because nothing can control their emotions. Emotions are not reasonable; they are intuitive. Sometimes they flow from perceptible evidence. At times they do not. Legal formalism fails when it refuses to accept just how important emotion and intuition are to the human mind. Like emotion, it is difficult to quantify fairness. We know it when we feel it. We know when a process is unfair, even if we cannot articulate why. Fairness is important to the law, even if it draws ridicule from law professors. And sometimes even the law recognizes how important it is. In more hopeful moments, even the Supreme Court sees that no legal rule can survive unless it comports with intuitive fairness: "[O]ur system of law has endeavored to prevent even the probability of unfairness." Sheppard v. Maxwell, 384 U.S. 333, 353 (1966), quoting In re Murchison, 349 U.S. 133, 136 (1955).
I doubt whether the 9/11 suspects will receive a "fair trial" anywhere in the United States. But I am certain they will not receive a fair trial in New York. The fact that the New York Post blared a headline telling the suspects (who are not convicted) to "Go Die" and mentioned "hell" indicates how New Yorkers feel about the case. True, not everyone reads the Post. But it voices a very popular sentiment, and it is almost impossible to avoid seeing such headlines each day. And these are the people who will receive jury duty summonses. Can we expect them to be "unbiased, calm and serene" as they consider "only evidence produced in court" in this case? I think not.
All this begs a question: Why even bother holding a trial at all for these suspects? In theory, the State and the individual should be equally matched at trial. The State attempts to divine the "truth" about the individual's "criminal act," while the individual--whom our system presumes innocent--is free to cast doubt on all the State's claims. As long as he produces a reasonable doubt about his guilt, he must go free.
But this is all theory. Few Americans presume everyday criminal suspects innocent, let alone the 9/11 conspirators. These men have been demonized in the press for over eight years. They have been held in orange jumpsuits at Guantanamo Bay. We have all seen the pictures. Can any American truly presume them innocent? Can any American reflect on them without bias or prejudice? Yet we now expect Americans--in New York, no less--to put aside all their emotions about 9/11, as well as all the negative publicity they have heard about it for the past eight years. We now expect that they will calmly and serenely reflect solely on evidence produced in court. We expect them to drop all their emotions, preconceptions and prejudices. We expect them to magically forget all the horrible things they have been told in the press since 2001. And we even expect them to respond to a judge's command to "exclude any information I deem inadmissible," including confessions induced by torture.
If our jury actually acts in the way the law expects, the 9/11 suspects will get the "fair trial" to which the Constitution entitles them. But people do not simply shut off their bias or emotion. Nor can they erase a fact from their memory simply because a judge says: "Disregard that fact, please." In short, national hysteria surrounding 9/11 for the last decade has so inflamed the American public that there is no way the 9/11 conspirators will get anything approaching a fair trial.
In this case, emotion, prejudice and a rabid press have already made the decision.
As guilty as the conspirators may be, we should step back and ask ourselves how "fair" our process truly is. And while we're at it, perhaps we should wonder whether we even want "fairness" for "monsters."
But if we sacrifice fairness in one case, what happens in the next one?
On Friday, the U.S. Department of Justice announced that it would try several key al-Qaeda suspects for their alleged role in the 9/11 attacks. That was big news; under President Bush's direction, the Justice Department deferred exclusively to the military for handling so-called "enemy combatants" captured in the "War on Terror." Unlike President Bush, Obama decided to heed the United States Constitution and prosecute these suspects before U.S. civilian courts. After all, these detainees are not "soldiers captured in War" under the Geneva Convention, because al-Qaeda did not sign the treaty. Yet American authorities hold them on American territory for breaking American laws. In such circumstances, there is only one lawful alternative: Try them in domestic courts.
This was a significant step. But the Justice Department announced something even more significant: It would try the suspects in New York.
From a legal perspective, it makes little difference where the sovereign chooses to try a criminal defendant for violating the law. Here, the United States seeks to convict terrorists for plotting to attack the World Trade Center and ultimately destroy it. As long as the sovereign holds the defendant in his realm, he can prosecute him under the ancient principle of "personal jurisdiction over the body." If you are present in a country and you commit a crime there, you can be prosecuted for it in that country--it is very simple.
It also makes sense to try 9/11 conspirators in New York from a practical perspective. In criminal trials, venue is proper when it is easy for witnesses to get to the courthouse. Certain districts have a greater interest in trying a case than others, especially when all the "sources of proof" lie in those districts. Venue is also proper when the crime has a direct connection to the locale. Even the United States Constitution says: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const. Amd. VI. This makes common sense as well as constitutional sense. It is practical--and somehow just--to try cases in the places where the crimes happened. Every jurisdiction has a public interest in punishing wrongdoing in its own borders.
Yet there are times in which it does not make sense to try cases in the most logical places. New York seems the most fitting place to try those accused of destroying the World Trade Center. All the witnesses are there, and obviously New York has a burning local interest in punishing those who caused such havoc in its borders.
But these practical advantages spawn larger concerns. After all, the Sixth Amendment guarantees criminal defendants "a speedy and public trial by an impartial jury." U.S. Const. Amd. VI. It is also guarantees that "no State shall deny any person of life, liberty, or property, without due process of law." Id. at Amd. IV, s. 1 The Supreme Court has held repeatedly that a State deprives "a person" of "due process of law" if it does not afford him a "fair trial." For obvious reasons, 9/11 conspirators may not get a "fair trial" by an "impartial jury" in New York. That is why it might not make sense to hold the trial there.
How can any New York jury be impartial about 9/11? Daily newspapers routinely run stories about "dangerous Muslims." Bitter memory about 9/11 runs deep. Many people knew individuals who died in the attacks, or they know their families. 9/11 is a focal point for national anger; and it burns hottest in New York.
These are the people who will sit in the "New York jury pool" when the conspirators step into court in New York. Can they be impartial? Can they render a judgment free from passion, excitement, resentment, anger or emotion? Trials are fair when they are based on evidence admitted under law in open court. They are not fair when they are based on emotional reaction, prejudice or bias.
And how can New Yorkers insulate themselves from pervasive press coverage about the trial? As soon as the Justice Department announced that it would try the suspects in New York, the New York Post published a blaring headline: "NOW DIE! 9/11 Fiends Coming Back to New York for Trial--Next Stop Hell."
That headline reminded me about the famous Supreme Court case about trial publicity and Due Process: Sheppard v. Maxwell, 384 U.S. 333 (1966). Sheppard held that every criminal defendant has a right to a "fair trial free from massive, pervasive and prejudicial news coverage" that is "reasonably likely" to lead the jury to find against him based on inadmissible evidence and emotion. The case also concluded that the trial judge has a duty to control press access to the trial, and to monitor every juryman's out-of-court attention to news comment about the case. After all, according to the Court, the State provides trials in order to "adjudicate controversies, both civil and criminal, in the calmness and solemnity of the courtroom according to legal procedures." Id. at 350, 351, quoting Cox v. Louisiana, 379 U.S. 559, 583 (1965). Those "legal procedures" include the requirement that the jury base its conclusions on evidence admitted in court, not on outside sources or emotion. Id. Prejudicial and pervasive press coverage undermines these goals when it poisons an entire population against a criminal defendant. And it undermines another key goal in our justice system: Fairness.
Many people discount fairness in legal questions. Law professors used to scoff at me when I suggested that certain results in cases were "unfair" or that legal forms resulted in "unfairness." After all, the law attempts to introduce scientific certainty into the maelstrom of human existence. It attempts to govern the ungovernable. In many ways, humans are ungovernable because nothing can control their emotions. Emotions are not reasonable; they are intuitive. Sometimes they flow from perceptible evidence. At times they do not. Legal formalism fails when it refuses to accept just how important emotion and intuition are to the human mind. Like emotion, it is difficult to quantify fairness. We know it when we feel it. We know when a process is unfair, even if we cannot articulate why. Fairness is important to the law, even if it draws ridicule from law professors. And sometimes even the law recognizes how important it is. In more hopeful moments, even the Supreme Court sees that no legal rule can survive unless it comports with intuitive fairness: "[O]ur system of law has endeavored to prevent even the probability of unfairness." Sheppard v. Maxwell, 384 U.S. 333, 353 (1966), quoting In re Murchison, 349 U.S. 133, 136 (1955).
I doubt whether the 9/11 suspects will receive a "fair trial" anywhere in the United States. But I am certain they will not receive a fair trial in New York. The fact that the New York Post blared a headline telling the suspects (who are not convicted) to "Go Die" and mentioned "hell" indicates how New Yorkers feel about the case. True, not everyone reads the Post. But it voices a very popular sentiment, and it is almost impossible to avoid seeing such headlines each day. And these are the people who will receive jury duty summonses. Can we expect them to be "unbiased, calm and serene" as they consider "only evidence produced in court" in this case? I think not.
All this begs a question: Why even bother holding a trial at all for these suspects? In theory, the State and the individual should be equally matched at trial. The State attempts to divine the "truth" about the individual's "criminal act," while the individual--whom our system presumes innocent--is free to cast doubt on all the State's claims. As long as he produces a reasonable doubt about his guilt, he must go free.
But this is all theory. Few Americans presume everyday criminal suspects innocent, let alone the 9/11 conspirators. These men have been demonized in the press for over eight years. They have been held in orange jumpsuits at Guantanamo Bay. We have all seen the pictures. Can any American truly presume them innocent? Can any American reflect on them without bias or prejudice? Yet we now expect Americans--in New York, no less--to put aside all their emotions about 9/11, as well as all the negative publicity they have heard about it for the past eight years. We now expect that they will calmly and serenely reflect solely on evidence produced in court. We expect them to drop all their emotions, preconceptions and prejudices. We expect them to magically forget all the horrible things they have been told in the press since 2001. And we even expect them to respond to a judge's command to "exclude any information I deem inadmissible," including confessions induced by torture.
If our jury actually acts in the way the law expects, the 9/11 suspects will get the "fair trial" to which the Constitution entitles them. But people do not simply shut off their bias or emotion. Nor can they erase a fact from their memory simply because a judge says: "Disregard that fact, please." In short, national hysteria surrounding 9/11 for the last decade has so inflamed the American public that there is no way the 9/11 conspirators will get anything approaching a fair trial.
In this case, emotion, prejudice and a rabid press have already made the decision.
As guilty as the conspirators may be, we should step back and ask ourselves how "fair" our process truly is. And while we're at it, perhaps we should wonder whether we even want "fairness" for "monsters."
But if we sacrifice fairness in one case, what happens in the next one?
Friday, November 13, 2009
TRAMPLED TO DEATH FOR A 10% DISCOUNT SALE
OESTERHOUDT STRIKES
On November 28, 2008, the Wal-Mart in Valley Stream, N.Y. braced itself for "Black Friday," the notorious shopping frenzy the day after Thanksgiving. It hired temporary employees to work longer hours. It also planned to open earlier and close later. Still, that was not enough to placate a mob of predawn shoppers who assembled at the front door long before the slated 5 AM opening time. These shoppers did not want to wait until 5 AM, so they smashed down the door and stampeded through the entrance. In the process, they trampled a temporary employee to death.
I presume they went straight to the discount aisles and did not even notice what they did.
I read about this story in the New York Daily News. See N.Y. Daily News, Wal-Mart set for shopper frenzy, Nov. 12, 2009 at p. 6. The News reported that Wal-Mart faced prosecution for its "wanton and willful disregard" for its employees' safety. Rather than face crippling fines, however, Wal-Mart struck a deal with prosecutors. It promised to implement better "crowd control measures" this year than it did last year.
This story interested me for two reasons. First, it confirmed to me how truly violent people can be when engaging in commerce. Second, it reminded me that the criminal law does things beyond merely punishing human bodies and individual bank accounts.
I felt genuine horror when I reflected on these rabid shoppers. Why does commerce lead people to behave like this? I have written that commercial language is "warlike:" the words "bargain," "purchase" and "haggle" all derive from violent etymological roots. But language alone does not explain why people smash down doors and crush hapless employees underfoot on their way to bargain bins. Something else is at work here. While language may reveal commerce as a warlike enterprise, the activity itself lends itself to contentiousness, strife, cruelty, selfishness and violence.
What was so important to these shoppers? Why was it so important to buy a few Holiday trinkets before the other guy? What emotions did they feel as they battered down the door and heard the employee struggling to escape from under their feet? Put simply, what did commerce do to these people? When they woke up that morning, they were law-abiding middle class drones. But by 5 AM they had transformed into a stampeding horde indifferent to life and death.
Human beings are acquisitive creatures. They like laying their hands on as many objects as possible and calling them "mine." Capitalist apologists even say that this "impulse to own" gives us the greatest economy the world has ever seen. They say it is pointless to deny it, and that communist countries fell because they tried to meddle with humankind's natural propensity to "competitively strive for ownership."
Property law also taps into this maniacal human urge. It proceeds on the reasoning that people will only work hard in society if they know their toils will translate into more "stuff" to call "mine." John Locke called this "The Labour Theory."
Maybe human acquisitiveness does give us the greatest economy in the world. Maybe it does lead people to work harder. Maybe it leads to innovation and greater good for all. But boiled down to its core, it is pretty damn ugly. It leads to scenes like the scene at Wal-Mart last year. I am not saying that human acquisitiveness does not bring direct benefits to society. I am merely saying that there is nothing noble or even attractive about it. The idea that people are prepared to smash down doors and trample others for a few Holiday savings is proof enough that commerce brings out some pretty horrible impulses in our human fellows.
On the second question, I found it interesting that no one went to jail for this outrage. After all, who was really liable? Everyone pointed the finger at Wal-Mart. But Wal-Mart is not a living human being; it is a noncorporeal corporation, a fanciful "legal person" with intangible rights and responsibilities. In the popular understanding, criminal law inflicts pain on "bad people" as "social revenge" for some dastardly choice they made. But how do you inflict pain on a non-human--even non-biological--entity? Corporations cannot be imprisoned, or tortured, or executed. They cannot even feel scared or anxious. Only living things can feel emotions.
So why did the prosecutor pursue Wal-Mart for the stampede? What could the criminal law do to inflict pain on a corporation? Interestingly enough, the criminal law has other, more subtle powers than merely inflicting bodily pain on humans. It can also target property, and corporations really like property. Corporations are private profit-making machines; they exist solely to enrich the people who own shares in the entity. To make profits--and to fulfill their raison d'etre--corporations need to earn more income than they lose in liabilities. The criminal law can impose fines on a corporation. Fines are "liabilities." If a fine is large enough, it could gravely impact the "income/liability" ratio and lead (gasp) to a quarterly loss.
In this case, Wal-Mart's management obviously did not want to suffer a loss. After all, corporate managers lose their jobs--and fat Christmas bonuses--if they report losses. They knew that a criminal fine would lead to a loss, so they bargained with the prosecutor to avoid that fate. The prosecutor took the opportunity to wring some public good from Wal-Mart's private misdeeds, so he insisted that Wal-Mart "implement greater safety controls next time." Thus, by threatening the corporation's monetary lifeblood, the prosecutor extracted a public benefit from Wal-Mart's transgression.
In this example, we see how the criminal law does more than merely punish individual bodies to vent social revenge. Rather, it can threaten corporations, too. In so doing, it can force corporations to take action that leads to greater safety and accountability. That is a public benefit. And because the criminal law is a public function, we should be glad that it has the power to achieve goals like this.
If we can't hang corporations or throw them in prison, we can at least force them to "do better" by threatening their precious "income/liability" ratios. Such public actions may not be as emotionally satisfying as electrocuting a half-insane child killer or lethally injecting a dubious home invader who had a court-appointed lawyer, but at least it's something.
Human beings respond to threats. So do "noncorporeal" entities like corporations. Humans adjust their behavior if they believe the criminal law will hurt their bodies or take away their money. Corporations will adjust their behavior if they believe the criminal law will impact their bottom lines and cause quarterly losses.
Everyone fears pain. Corporations fear fiscal pain. So that's the pain the criminal law threatens to inflict on them.
I say: "Whatever works."
On November 28, 2008, the Wal-Mart in Valley Stream, N.Y. braced itself for "Black Friday," the notorious shopping frenzy the day after Thanksgiving. It hired temporary employees to work longer hours. It also planned to open earlier and close later. Still, that was not enough to placate a mob of predawn shoppers who assembled at the front door long before the slated 5 AM opening time. These shoppers did not want to wait until 5 AM, so they smashed down the door and stampeded through the entrance. In the process, they trampled a temporary employee to death.
I presume they went straight to the discount aisles and did not even notice what they did.
I read about this story in the New York Daily News. See N.Y. Daily News, Wal-Mart set for shopper frenzy, Nov. 12, 2009 at p. 6. The News reported that Wal-Mart faced prosecution for its "wanton and willful disregard" for its employees' safety. Rather than face crippling fines, however, Wal-Mart struck a deal with prosecutors. It promised to implement better "crowd control measures" this year than it did last year.
This story interested me for two reasons. First, it confirmed to me how truly violent people can be when engaging in commerce. Second, it reminded me that the criminal law does things beyond merely punishing human bodies and individual bank accounts.
I felt genuine horror when I reflected on these rabid shoppers. Why does commerce lead people to behave like this? I have written that commercial language is "warlike:" the words "bargain," "purchase" and "haggle" all derive from violent etymological roots. But language alone does not explain why people smash down doors and crush hapless employees underfoot on their way to bargain bins. Something else is at work here. While language may reveal commerce as a warlike enterprise, the activity itself lends itself to contentiousness, strife, cruelty, selfishness and violence.
What was so important to these shoppers? Why was it so important to buy a few Holiday trinkets before the other guy? What emotions did they feel as they battered down the door and heard the employee struggling to escape from under their feet? Put simply, what did commerce do to these people? When they woke up that morning, they were law-abiding middle class drones. But by 5 AM they had transformed into a stampeding horde indifferent to life and death.
Human beings are acquisitive creatures. They like laying their hands on as many objects as possible and calling them "mine." Capitalist apologists even say that this "impulse to own" gives us the greatest economy the world has ever seen. They say it is pointless to deny it, and that communist countries fell because they tried to meddle with humankind's natural propensity to "competitively strive for ownership."
Property law also taps into this maniacal human urge. It proceeds on the reasoning that people will only work hard in society if they know their toils will translate into more "stuff" to call "mine." John Locke called this "The Labour Theory."
Maybe human acquisitiveness does give us the greatest economy in the world. Maybe it does lead people to work harder. Maybe it leads to innovation and greater good for all. But boiled down to its core, it is pretty damn ugly. It leads to scenes like the scene at Wal-Mart last year. I am not saying that human acquisitiveness does not bring direct benefits to society. I am merely saying that there is nothing noble or even attractive about it. The idea that people are prepared to smash down doors and trample others for a few Holiday savings is proof enough that commerce brings out some pretty horrible impulses in our human fellows.
On the second question, I found it interesting that no one went to jail for this outrage. After all, who was really liable? Everyone pointed the finger at Wal-Mart. But Wal-Mart is not a living human being; it is a noncorporeal corporation, a fanciful "legal person" with intangible rights and responsibilities. In the popular understanding, criminal law inflicts pain on "bad people" as "social revenge" for some dastardly choice they made. But how do you inflict pain on a non-human--even non-biological--entity? Corporations cannot be imprisoned, or tortured, or executed. They cannot even feel scared or anxious. Only living things can feel emotions.
So why did the prosecutor pursue Wal-Mart for the stampede? What could the criminal law do to inflict pain on a corporation? Interestingly enough, the criminal law has other, more subtle powers than merely inflicting bodily pain on humans. It can also target property, and corporations really like property. Corporations are private profit-making machines; they exist solely to enrich the people who own shares in the entity. To make profits--and to fulfill their raison d'etre--corporations need to earn more income than they lose in liabilities. The criminal law can impose fines on a corporation. Fines are "liabilities." If a fine is large enough, it could gravely impact the "income/liability" ratio and lead (gasp) to a quarterly loss.
In this case, Wal-Mart's management obviously did not want to suffer a loss. After all, corporate managers lose their jobs--and fat Christmas bonuses--if they report losses. They knew that a criminal fine would lead to a loss, so they bargained with the prosecutor to avoid that fate. The prosecutor took the opportunity to wring some public good from Wal-Mart's private misdeeds, so he insisted that Wal-Mart "implement greater safety controls next time." Thus, by threatening the corporation's monetary lifeblood, the prosecutor extracted a public benefit from Wal-Mart's transgression.
In this example, we see how the criminal law does more than merely punish individual bodies to vent social revenge. Rather, it can threaten corporations, too. In so doing, it can force corporations to take action that leads to greater safety and accountability. That is a public benefit. And because the criminal law is a public function, we should be glad that it has the power to achieve goals like this.
If we can't hang corporations or throw them in prison, we can at least force them to "do better" by threatening their precious "income/liability" ratios. Such public actions may not be as emotionally satisfying as electrocuting a half-insane child killer or lethally injecting a dubious home invader who had a court-appointed lawyer, but at least it's something.
Human beings respond to threats. So do "noncorporeal" entities like corporations. Humans adjust their behavior if they believe the criminal law will hurt their bodies or take away their money. Corporations will adjust their behavior if they believe the criminal law will impact their bottom lines and cause quarterly losses.
Everyone fears pain. Corporations fear fiscal pain. So that's the pain the criminal law threatens to inflict on them.
I say: "Whatever works."
Wednesday, November 11, 2009
HORSE-TRADING DEMOCRACY : COMPROMISES ARE WEAK
OESTERHOUDT STRIKES
Yesterday I read an article about the health care reform bill that narrowly passed the House. The author said the bill faced a "hard time" in the Senate. Just a few votes could decide the issue. Not surprisingly, Obama is now "courting" those few votes, including some "moderate Republican woman from Maine." In essence, then, this means that health care reform for all Americans hinges on the individual proclivities of one or two wealthy Senators.
I call this "horse-trading" democracy. When a political system is as divided as ours today, something truly pernicious happens: A few "swing voters" wind up holding all the power. These "swing voters" know that they hold the key to legislative victory, so they exploit their unique "middle" position to wring concessions from both sides. In essence, they have "really good horses," so they can go to market and really get a good price.
This is not public service. This is crass individual power play.
Some say that American government has persisted for so long because it has a "genius for compromise." They say that real progress flows not from imposing one vision over another, but rather from reasonable dialogue among several visions. That dialogue, in turn, transforms legislative bombast into modest, deliberate action for the Nation as a whole. Compromise, so the wisdom goes, trims radicalism and results in the greatest good for all.
All that may have been true at earlier times in our history. But today the national debate is hopelessly splintered. Democrats don't agree with Republicans. Republicans would rather die that give Obama anything he wants, even in a compromised form. By the same token, Democrats would have rather died than have given Bush anything he wanted when he was President, even in a compromised form. Both sides lambaste and criticize one another with hellish vitriol. Both sides claim that the world will end if "the other side" prevails. It is neither reasonable nor even collegial. In such a poisonous atmosphere, there is no room for genuine dialogue. That is why "real compromise" is an impossibility in modern American government. The two ideological camps are too well entrenched. Nobody budges for the "public good" anymore.
This is not good for the country. Reform suffocates amid compromise and party infighting. Real reform requires a hard look at old problems with new eyes. Yet modern Washington politics rule out any fresh ideas on old problems. Unless a solution fits party-line ideological demands, no one will support it. In the end, this leads to two possible outcomes: "Tyranny by a small majority over a large minority;" or compromise. In either situation, truly sweeping reform cannot prevail. In the first case, the small majority (51%) imposes its will against ferocious opposition; the large minority (49%) then becomes so outraged that it actively undermines the reform's function. In the second case, reform loses its character as reform, because compromise necessarily dilutes its force through myriad concessions.
And then there is horse-trading. To get health care reform through the Senate, Obama must "play ball" with the tiny number of Senators who have not already declared their allegiance on the issue. These "swing voters" not only have an opportunity to enrich their constituents, but also to shape the bill's substance. In essence, "horse-traders" like the "moderate Republican from Maine" get the final say on a momentous national issue. They get to say not only whether the bill passes; they also get to dictate what the law says. After all, they have the horses. They won't sell if they don't get the price they want. So they name the price and everyone else has to follow along. At the same time, horse traders can pander to the opposition by refusing to support the bill. They can achieve advantages from that stance, too.
What does all this have to do with meaningful reform? What does all this petty power posturing have to do with substantial change in a modern world? Nothing.
I don't like compromise government. Yet for better or worse, modern American government has degenerated into an acrimonious two-player game. One side believes the opposite of the other, and one or two individuals on either side can tip the balance one way or the other. In such circumstances, it is impossible to govern by principle or even by popular will. While Congressmen are supposed to represent the people, in the final analysis they are individuals. They can do what they please when voting for bills. In a democracy as splintered as ours, that means a few individuals can block legislative initiatives that millions dearly want. Or they can demand concessions or compromises that gut a hopeful bill's reform effort.
Compromise government never delivers hot or cold; it only delivers mild. Yet life at times demands hot or cold; mild water does not boil tea, nor does it make ice. And when both parties in government cannot reasonably talk to each other, it opens the door to horse-trading. In sum, this entrusts all authority over public issues to a few lucky Senators who are neither hot nor cold.
I do not call this "the genius of compromise government." I call it theoretical weakness and mediocrity. And at a moment when America needs hot or cold, this government will deliver mild at best--if anything at all.
But at least the "moderate Republican from Maine" will get something from the deal. And who cares about what everyone else wants?
Yesterday I read an article about the health care reform bill that narrowly passed the House. The author said the bill faced a "hard time" in the Senate. Just a few votes could decide the issue. Not surprisingly, Obama is now "courting" those few votes, including some "moderate Republican woman from Maine." In essence, then, this means that health care reform for all Americans hinges on the individual proclivities of one or two wealthy Senators.
I call this "horse-trading" democracy. When a political system is as divided as ours today, something truly pernicious happens: A few "swing voters" wind up holding all the power. These "swing voters" know that they hold the key to legislative victory, so they exploit their unique "middle" position to wring concessions from both sides. In essence, they have "really good horses," so they can go to market and really get a good price.
This is not public service. This is crass individual power play.
Some say that American government has persisted for so long because it has a "genius for compromise." They say that real progress flows not from imposing one vision over another, but rather from reasonable dialogue among several visions. That dialogue, in turn, transforms legislative bombast into modest, deliberate action for the Nation as a whole. Compromise, so the wisdom goes, trims radicalism and results in the greatest good for all.
All that may have been true at earlier times in our history. But today the national debate is hopelessly splintered. Democrats don't agree with Republicans. Republicans would rather die that give Obama anything he wants, even in a compromised form. By the same token, Democrats would have rather died than have given Bush anything he wanted when he was President, even in a compromised form. Both sides lambaste and criticize one another with hellish vitriol. Both sides claim that the world will end if "the other side" prevails. It is neither reasonable nor even collegial. In such a poisonous atmosphere, there is no room for genuine dialogue. That is why "real compromise" is an impossibility in modern American government. The two ideological camps are too well entrenched. Nobody budges for the "public good" anymore.
This is not good for the country. Reform suffocates amid compromise and party infighting. Real reform requires a hard look at old problems with new eyes. Yet modern Washington politics rule out any fresh ideas on old problems. Unless a solution fits party-line ideological demands, no one will support it. In the end, this leads to two possible outcomes: "Tyranny by a small majority over a large minority;" or compromise. In either situation, truly sweeping reform cannot prevail. In the first case, the small majority (51%) imposes its will against ferocious opposition; the large minority (49%) then becomes so outraged that it actively undermines the reform's function. In the second case, reform loses its character as reform, because compromise necessarily dilutes its force through myriad concessions.
And then there is horse-trading. To get health care reform through the Senate, Obama must "play ball" with the tiny number of Senators who have not already declared their allegiance on the issue. These "swing voters" not only have an opportunity to enrich their constituents, but also to shape the bill's substance. In essence, "horse-traders" like the "moderate Republican from Maine" get the final say on a momentous national issue. They get to say not only whether the bill passes; they also get to dictate what the law says. After all, they have the horses. They won't sell if they don't get the price they want. So they name the price and everyone else has to follow along. At the same time, horse traders can pander to the opposition by refusing to support the bill. They can achieve advantages from that stance, too.
What does all this have to do with meaningful reform? What does all this petty power posturing have to do with substantial change in a modern world? Nothing.
I don't like compromise government. Yet for better or worse, modern American government has degenerated into an acrimonious two-player game. One side believes the opposite of the other, and one or two individuals on either side can tip the balance one way or the other. In such circumstances, it is impossible to govern by principle or even by popular will. While Congressmen are supposed to represent the people, in the final analysis they are individuals. They can do what they please when voting for bills. In a democracy as splintered as ours, that means a few individuals can block legislative initiatives that millions dearly want. Or they can demand concessions or compromises that gut a hopeful bill's reform effort.
Compromise government never delivers hot or cold; it only delivers mild. Yet life at times demands hot or cold; mild water does not boil tea, nor does it make ice. And when both parties in government cannot reasonably talk to each other, it opens the door to horse-trading. In sum, this entrusts all authority over public issues to a few lucky Senators who are neither hot nor cold.
I do not call this "the genius of compromise government." I call it theoretical weakness and mediocrity. And at a moment when America needs hot or cold, this government will deliver mild at best--if anything at all.
But at least the "moderate Republican from Maine" will get something from the deal. And who cares about what everyone else wants?
Monday, November 9, 2009
TEETERING ON THE BRINK OF RUIN
A CRITICAL MESSAGE FROM THE OFFICE OF OVERSTATEMENT, ALARMISM AND BASELESS FEAR-MONGERINGWASHINGTON, D.C.
By : Mr. Herbert G. Scheuche, Bureau Commissioner and Press Secretary
We regret to inform the American public that the situation is critical. Based upon credible reports, it appears that our Nation has never faced as grave a crisis as the one it faces today. Although national security protocols prevent us from disclosing precisely how this crisis is developing, we can tell you that it is very serious. We urge you to stay alert as you go about your daily routine. Nonetheless, we admonish everyone to remain afraid, because this is no hoax. We are in the crosshairs. Our society teeters on the brink of ruin. We simply cannot describe how.
Our children are in mortal danger. At any moment, a terrible health threat could cause untold carnage among young people between 4 and 24. We are informed that a lethal virus exists. We are also informed that it can cause death. For these reasons, we urge all parents to keep their doors locked. Wear face masks. Do not take chances; this is a life-threatening situation. We will do our best to tell you more details. But for the moment, we ask that you merely remember that this is a crisis and you must be afraid. Only constant fear and terror will save you and your children from imminent death.
America faces numerous crises. They are all critical. Last week, Halloween candy sales proved that there is a very real threat to pediatric dental health nationwide. Americans bought more than 500,000 tons of candy last week, more than they have ever bought in a single week since our Founding. That unleashed a devastating amount of sugar into American diets. In a Nation already hobbled by diabetes, the sugar menace presents a genuine danger. Not only will children require increased dental care, but elderly Americans now face perhaps the most critical health crisis since the Spanish Influenza of 1918. Sugar kills. And it is everywhere.
President Barack Obama has also led this country into crisis. Yesterday, the United States House of Representatives passed a sweeping health care reform bill that threatens to change health care as we know it. This is a mortal danger. We warn all Americans to expect the worst. By reforming health care, President Obama has created both an economic and medical emergency. The bill will drive billions of Americans into bankruptcy. It will cause employers to cut jobs. Worse, it will cause health insurance companies to lose quarterly profits. These are unprecedented dangers. We must be afraid.
We must remain afraid no matter what anyone says. Our Nation gets nowhere when it denies dangers. Danger is everywhere. President Obama tells us that we must "keep hope alive" and "live positively." But this is a recipe for disaster. Fear and suspicion are the only things that will keep us safe, not health care reform or hopeful rhetoric about "change." No matter what Obama says, we have a duty to tremble in terror every day. We betray our obligations when we suddenly feel good about the future.
We urge Americans not to be fooled. We must remember that we face unspeakable calamities from every corner. In times of crisis, we cannot afford to feel good about the future. Rather, we must shrink down and wait for official word about what to do. Here at the Office of Overstatement, Alarmism and Baseless Fear-Mongering, we are committed to providing vague, official statements to guide Americans through their daily terror. Occasionally we have good news. But even good news carries with it new admonishments and qualifications. For example, if we report that we captured a dangerous terrorist, we will always mention that his accomplice is still at large. Or if an earthquake does not destroy a city, we mention that it is still on a fault line. Put simply, we will always remind you that we are still in a crisis.
We can achieve great things when we are afraid. When we are afraid, our adrenaline flows. And when our adrenaline flows, we can accomplish things we never thought we had the strength to accomplish. Our Nation benefits from fear and exaggeration. It also benefits from confusion, misinformation, mutual distrust and malice. That is why we are committed to disseminating the most terrifying yet vague reports we can possibly broadcast. Just when it looks like we might get out of the woods on one crisis, we always mention another one to keep you guessing.
We are in trouble. Osama bin Laden is still alive. True, we have killed many al-Qaeda operatives over the years. But terrorists still lurk among us. Worse, our educational system is in shambles. And we have received disturbing information from scientists that the swine flu is mutating into a deadly airborne plague. If we do not all retreat into our homes now, we could face the most critical crisis America has ever encountered. We would like to tell you more, but our commitment to inspecific vagueness prevents us from fully dispelling your fears. Suffice it to say, the danger is very real and you should be afraid. Because when you are scared, you can do anything.
Rest assured that we here at the Office for Overstatement, Alarmism and Baseless Fear-Mongering will do everything in our power to keep you just informed enough to be terrified, suspicious and agitated. Yes, we face untold crisis and danger on a colossal scale. But as long as we have just enough information to react irrationally, we can prevail.
Beware. America has never faced more violent crime than it does today. Prisoners are escaping from prison in huge numbers, although we cannot say where. Additionally, we have just received word that the U.S. Customs Service failed to prevent a highly toxic Chinese tree from entering an undisclosed American port. According to Bureau doctors, this tree has already released deadly spores that could have already infected several thousand Americans somewhere. Put simply, we face botanical crisis on an unimaginable scale.
Until further notice, we urge you to lock your doors, buy a gas mask, don't answer the phone and stay tuned for further bulletins. Don't trust anyone, including your relatives and spouse. Avoid contact with plants and trees. We will provide more information as we receive it. Until that time, make sure your heart rate stays elevated and maintain a suitably high anxiety level. That is the only way to deal with crisis. And when we deal with crisis, we show our strength.
Don't be a hero. Cower and wait for instructions.
Friday, November 6, 2009
WHAT'S WORSE, IRAQ OR VIETNAM? LOW POINTS IN AMERICAN HISTORY
AN ESSAY
Before the "conflict" in Vietnam during the 1960s and 1970s, America had a hearty appetite for war. In the decades before Vietnam, Americans had waged several very successful wars against traditional opponents in Europe and Asia. They used their overwhelming industrial might to grind their enemies into submission. And because they always waged war far from home, these wars never directly impacted the civilian population. American cities never burned, nor did rampaging armies rape American women. In short, America had an appetite for war because it won them with comparatively little sacrifice.
But Vietnam tempered America's appetite for war because it was "unwinnable." Unlike the world wars, Vietnam was a civil war between ideological enemies in the same country. The "enemy" did not fight along traditional lines; they fought a dispersed war. They made it difficult for America to leverage its massive industrial might against them. Despite America's massive technological and material advantages, the North Vietnamese continued to resist. They never fought pitched battles with the Americans. They used hit-and-run tactics, preserved their forces and vanished into the jungle. No matter how many B-52 bombers or helicopters the Americans threw at them, they always managed to reappear. For a country accustomed to obliterating its enemies in open combat, this was a rude awakening.
America called Vietnam a "quagmire" because it could not crush its enemies in a single campaign. America does not like "quagmires" for the same reason it does not like unprofitable businesses: If you can't deliver success quick, people lose interest and close you down. America likes quick wins, not protracted struggles. Vietnam was a protracted struggle. When it appeared that no measure of carpet bombing or napalm would bring the North Vietnamese to heel, the American people simply lost interest and gave up.
This was a sobering moment in American history. Ragtag communist rebels turned away the world's most advanced army. The North Vietnamese never defeated the Americans in the field, but they successfully protracted the war long enough to deprive America's will for further combat. In this sense, they did not inflict a "military defeat" on the United States. But they prevented the United States from "achieving victory." That was a first in American history. And it disheartened many Americans.
Disbelief and frustration over the "unsatisfactory result" in Vietnam colored American public opinion about war for decades. During the buildup to the First Gulf War in 1990, President George H.W. Bush reassured the public that the coming conflict in Kuwait would result in "decisive victory." He invoked the "quagmire" in Southeast Asia when he said: "This will not be another Vietnam." He knew that Americans would not tolerate a protracted struggle. So he set his goal modestly: Destroy the Iraqi army, liberate Kuwait and go home. It was an achievable goal. He accomplished it. Unlike Vietnam, the First Gulf War was not a "quagmire" because it had a limited scope. Americans were happy with the outcome.
But the Second Gulf War did not have a limited scope. Unlike his father, President George W. Bush did not set achievable goals when he planned to invade Iraq in 2003. He said he wanted to "find weapons of mass destruction" and "remove Saddam Hussein from power." Yet any novice policy adviser knew that occupying a Middle Eastern country would entail a much broader involvement than merely liberating one Nation from another. Sure enough, this is exactly what happened. After ousting Saddam, American forces assumed a "police role" in Iraq. By removing Saddam, they unleashed a power vacuum that triggered a civil war. American troops found themselves in the crossfire between two warring factions. Casualties mounted. There was no end in sight.
We are still there: Another quagmire.
Both the Second Gulf War and Vietnam represent low points in American history. They both represent moments in which America questions its ability to wage successful wars. They both caused immense dissent at home. But I venture that the "Iraqi adventure" is a lower point in American history than the Vietnam war. I say this because there is a key distinction in motivation between them. I judge history by the intentions of those who animate it. And by that standard, Iraq appears a more unethical struggle than Vietnam.
Although both Vietnam and Iraq resulted in military "quagmires," America had a much purer purpose in Vietnam than it did in Iraq. For better or worse, America involved itself in Vietnam for an almost naive ideological reason: To halt the spread of its philosophical nemesis: Communism. America did not have any particular loyalty to the South Vietnamese government, nor did it have vested commercial interests in Southeast Asia. Instead, it embroiled itself in a bloody civil war 10,000 miles away solely to show that it did not like communism. No matter what you think about communism, you cannot fault the United States for believing in its "principles" in Vietnam. It had a clear philosophical "purpose" in fighting that war. It may have been the wrong purpose, but at least America believed in something to justify its sacrifice.
In short, America's motivations were apparent in Vietnam. And they were based in philosophical disagreement. Vietnam, then, represented America's belief in its own economic system over another. It was a "battle of principles."
But America's motivations for war in Iraq were far less naive. Despite Bush's rhetoric about "delivering democracy to Iraq" and "freeing Iraqis from tyranny," no one really believed those explanations. No, any reasonable person could see that America had massive commercial interests in an oil-producing country like Iraq. Even the Vice President owned shares in a company that stood to greatly benefit from any military involvement in the Middle East.
Worse, America took a dishonest course in shuffling toward war in 2003. President Bush used public hysteria about Islamic terrorism to forge a fanciful link between Osama bin Laden and Iraq. He even exaggerated stories about Iraqi "weapons of mass destruction" to deceive Americans into thinking that invading Iraq was necessary for "self-defense." He presented false testimony to the United Nations and the American public to garner support for military action. All the while, he failed to mention the crude commercial reasons why war in Iraq would benefit industrial interests.
America's "quagmire" in Iraq is not just a military fiasco. It is also the culmination of unethical behavior and dishonesty on an international scale. That is why I think it warrants greater condemnation than American involvement in Vietnam. As bad as Vietnam was, at least the President did not deceive both the international community and his own people to launch an unjust war. In Vietnam, America fought honestly to combat a philosophy it rejected. Everyone was relatively clear about that. But in Iraq, America fought--and still fights--an unnecessary war born in ignorance and deception. Worst, even a mild cynic can see that America has a direct interest in seizing territory in the oil-rich Middle East. And the commercial explanation renders all other explanations disingenuous. There was no such commercial explanation for war in Vietnam.
In sum, both Vietnam and Iraq stand out as bleak moments in American history. Both drove America into social turmoil because they did not result in "quick wins." But because America resorted to dishonesty to garner support for war in Iraq, I conclude that our experience in Iraq is a more embarrassing national humiliation than Vietnam. Unlike our naive--and foolishly misguided--motivations for war in Vietnam, our motivations for war in Iraq were simply crass, greedy and dishonorable. And we even had to lie and cheat to gain popular approval for action.
That is just unethical and shocking.
Before the "conflict" in Vietnam during the 1960s and 1970s, America had a hearty appetite for war. In the decades before Vietnam, Americans had waged several very successful wars against traditional opponents in Europe and Asia. They used their overwhelming industrial might to grind their enemies into submission. And because they always waged war far from home, these wars never directly impacted the civilian population. American cities never burned, nor did rampaging armies rape American women. In short, America had an appetite for war because it won them with comparatively little sacrifice.
But Vietnam tempered America's appetite for war because it was "unwinnable." Unlike the world wars, Vietnam was a civil war between ideological enemies in the same country. The "enemy" did not fight along traditional lines; they fought a dispersed war. They made it difficult for America to leverage its massive industrial might against them. Despite America's massive technological and material advantages, the North Vietnamese continued to resist. They never fought pitched battles with the Americans. They used hit-and-run tactics, preserved their forces and vanished into the jungle. No matter how many B-52 bombers or helicopters the Americans threw at them, they always managed to reappear. For a country accustomed to obliterating its enemies in open combat, this was a rude awakening.
America called Vietnam a "quagmire" because it could not crush its enemies in a single campaign. America does not like "quagmires" for the same reason it does not like unprofitable businesses: If you can't deliver success quick, people lose interest and close you down. America likes quick wins, not protracted struggles. Vietnam was a protracted struggle. When it appeared that no measure of carpet bombing or napalm would bring the North Vietnamese to heel, the American people simply lost interest and gave up.
This was a sobering moment in American history. Ragtag communist rebels turned away the world's most advanced army. The North Vietnamese never defeated the Americans in the field, but they successfully protracted the war long enough to deprive America's will for further combat. In this sense, they did not inflict a "military defeat" on the United States. But they prevented the United States from "achieving victory." That was a first in American history. And it disheartened many Americans.
Disbelief and frustration over the "unsatisfactory result" in Vietnam colored American public opinion about war for decades. During the buildup to the First Gulf War in 1990, President George H.W. Bush reassured the public that the coming conflict in Kuwait would result in "decisive victory." He invoked the "quagmire" in Southeast Asia when he said: "This will not be another Vietnam." He knew that Americans would not tolerate a protracted struggle. So he set his goal modestly: Destroy the Iraqi army, liberate Kuwait and go home. It was an achievable goal. He accomplished it. Unlike Vietnam, the First Gulf War was not a "quagmire" because it had a limited scope. Americans were happy with the outcome.
But the Second Gulf War did not have a limited scope. Unlike his father, President George W. Bush did not set achievable goals when he planned to invade Iraq in 2003. He said he wanted to "find weapons of mass destruction" and "remove Saddam Hussein from power." Yet any novice policy adviser knew that occupying a Middle Eastern country would entail a much broader involvement than merely liberating one Nation from another. Sure enough, this is exactly what happened. After ousting Saddam, American forces assumed a "police role" in Iraq. By removing Saddam, they unleashed a power vacuum that triggered a civil war. American troops found themselves in the crossfire between two warring factions. Casualties mounted. There was no end in sight.
We are still there: Another quagmire.
Both the Second Gulf War and Vietnam represent low points in American history. They both represent moments in which America questions its ability to wage successful wars. They both caused immense dissent at home. But I venture that the "Iraqi adventure" is a lower point in American history than the Vietnam war. I say this because there is a key distinction in motivation between them. I judge history by the intentions of those who animate it. And by that standard, Iraq appears a more unethical struggle than Vietnam.
Although both Vietnam and Iraq resulted in military "quagmires," America had a much purer purpose in Vietnam than it did in Iraq. For better or worse, America involved itself in Vietnam for an almost naive ideological reason: To halt the spread of its philosophical nemesis: Communism. America did not have any particular loyalty to the South Vietnamese government, nor did it have vested commercial interests in Southeast Asia. Instead, it embroiled itself in a bloody civil war 10,000 miles away solely to show that it did not like communism. No matter what you think about communism, you cannot fault the United States for believing in its "principles" in Vietnam. It had a clear philosophical "purpose" in fighting that war. It may have been the wrong purpose, but at least America believed in something to justify its sacrifice.
In short, America's motivations were apparent in Vietnam. And they were based in philosophical disagreement. Vietnam, then, represented America's belief in its own economic system over another. It was a "battle of principles."
But America's motivations for war in Iraq were far less naive. Despite Bush's rhetoric about "delivering democracy to Iraq" and "freeing Iraqis from tyranny," no one really believed those explanations. No, any reasonable person could see that America had massive commercial interests in an oil-producing country like Iraq. Even the Vice President owned shares in a company that stood to greatly benefit from any military involvement in the Middle East.
Worse, America took a dishonest course in shuffling toward war in 2003. President Bush used public hysteria about Islamic terrorism to forge a fanciful link between Osama bin Laden and Iraq. He even exaggerated stories about Iraqi "weapons of mass destruction" to deceive Americans into thinking that invading Iraq was necessary for "self-defense." He presented false testimony to the United Nations and the American public to garner support for military action. All the while, he failed to mention the crude commercial reasons why war in Iraq would benefit industrial interests.
America's "quagmire" in Iraq is not just a military fiasco. It is also the culmination of unethical behavior and dishonesty on an international scale. That is why I think it warrants greater condemnation than American involvement in Vietnam. As bad as Vietnam was, at least the President did not deceive both the international community and his own people to launch an unjust war. In Vietnam, America fought honestly to combat a philosophy it rejected. Everyone was relatively clear about that. But in Iraq, America fought--and still fights--an unnecessary war born in ignorance and deception. Worst, even a mild cynic can see that America has a direct interest in seizing territory in the oil-rich Middle East. And the commercial explanation renders all other explanations disingenuous. There was no such commercial explanation for war in Vietnam.
In sum, both Vietnam and Iraq stand out as bleak moments in American history. Both drove America into social turmoil because they did not result in "quick wins." But because America resorted to dishonesty to garner support for war in Iraq, I conclude that our experience in Iraq is a more embarrassing national humiliation than Vietnam. Unlike our naive--and foolishly misguided--motivations for war in Vietnam, our motivations for war in Iraq were simply crass, greedy and dishonorable. And we even had to lie and cheat to gain popular approval for action.
That is just unethical and shocking.
Thursday, November 5, 2009
WHY DO AMERICANS HATE SOCIALISM SO MUCH?
AN ESSAY
Since Barack Obama won the White House last year, Republicans have galvanized their opposition by claiming that Democrats want to introduce "socialism" into American life. They do not really understand what "socialism" means; they just use it as a catchall pejorative to label anything they don't like. They don't like anything that makes them pay more taxes or finance other people's welfare. They don't like anything that transfers money to so-called "wasteful programs," like health care, education and environmental protection. They know that the word "socialism" sends shivers up American spines, so they use the word to describe everything they're not. They even criticize other countries for embracing "socialism."
But all these critiques fundamentally miscomprehend "socialism." The United States is not a socialist country, not even close. True socialism means that the State owns all property and controls the means of economic production and distribution. It also means that every citizen is literally equal to every other citizen. It is essentially humanitarian in theory, even if historical examples show that it can tragically fail in practice. No matter the historical record, there is nothing even remotely socialist about the United States. Americans live for private property and class distinctions. If they were socialists, they would not strive for these things; in fact, they could not even own property. Democrats are little different than Republicans in this sense. Neither party wants to abandon the free market system. The only debate is how much they want government to "interfere" in the free market.
This is the point at which Republicans stray into conceptual ignorance. They think that any government interference into the free market is "socialism." Yet this overlooks a trend that has evolved in the West at least since the early 20th Century: Increased government supervision over private economic enterprise. Governments in traditionally capitalist countries understood that leaving all economic functions to the free market led to labor exploitation, dangerous goods and unfair social relationships. Democratic governments (or at least quasi-democracies like Great Britain and the United States) also found that unbridled capitalism tended to subvert constitutional principles, such as human dignity and equality.
For these reasons, governments in traditionally capitalist countries began encroaching upon private economic liberties for the public good. They instituted labor control boards, product safety boards and oversight committees. They enforced minimum wages and guaranteed workers the power to fairly bargain with management. They even began creating social security nets and health care systems for their populations, distributing tax revenues in such a manner as to realize the dream of a better society for all. These reforms were all "social" in nature, but they never completely replaced the free market. Rather, they merely tempered the free market, reconciling principle with economic reality. Yet Republicans today call such efforts "socialism." This is simply untrue. If anything, Western Nations have "modified free market" systems, not socialist systems.
European Nations have generally made many more "social modifications" to their free market systems than the United States. For many reasons, Europeans have been willing to curtail unbridled economic liberty in order to bring greater social advantages to their populations. This is the reason why many Europeans do not understand why Americans cannot resolve their "health care mess." For Europeans living in "modified free market systems," it goes without saying that every citizen has a right to medical care at State expense. Yet in America, that sentiment is not so widespread. Here, there is always a grave tension between social "guarantees" and economic freedom. When social "guarantees" mean that some people cannot amass as much money as they could without the guarantees, they staunchly oppose any effort to curtail their economic liberty. This is the reason why social modifications to the free market system in the United States are much more modest than in Europe: Too many people resist them in order to preserve their ability to make more money fast.
Both the United States and European Nations are free market societies. Both allow private property. Both have central banking systems, stock exchanges and tolerate massive class distinctions. But citizens in European Nations have allowed government to restrict their economic freedom more than their American counterparts. In exchange for those restrictions, they live in more secure circumstances: There is universal health care, ample housing and free education. European Nations understand that pure free market life is not easy. Employment depends as much on the winds of the market as it does on individual ability. In that light, they made sacrifices to provide a safety net against the market's inevitable "down periods."
By contrast, the United States does not provide such a safety net. True, the United States does provide health care to the elderly, the disabled and those who serve government. It provides modest income to retirees and injured people. It also allocates some funds to protect citizens against homelessness and ruin. But that's about it; America's commitment to "modifying the free market" essentially stopped in the 1960s. Since then, any effort to make "European style" changes has met with angry cries of "Socialism!" Both Europe and the United States made substantial changes to their free market systems in the decades after the 1929 Crash. But only Europe continued along that path after the 1960s. Once America asserted global dominance, it somehow decided that caring for its own people was no longer a top priority.
I think this is an unfortunate development. Americans should not shy away from "European style" improvements to our social order because they are supposedly "socialist." Europe embraces free market capitalism, just like we do. It simply imposes greater controls on unrestricted economic liberty than the United States. Those restrictions translate into tangible social benefits in the form of health care, consumer protections, access to justice, labor oversight, transportation, child care, unemployment insurance, pensions and education. People do not go bankrupt financing their education in Europe, nor do they die waiting for a private insurance company to approve surgery. They might pay more taxes to finance these social protections, but they know they will always have a place to stay or health care if they get sick. Unlike Americans, they do not need to worry about losing their precious jobs if illness strikes. Yet all the while, they can own private property and perhaps get rich. Just because they enjoy social protections at government expense does not make them "socialist."
Why does America reject these things? What makes us so different from our European counterparts? Do we treasure our rugged "do-it-yourself" spirit so much that we tolerate social injustice on a massive scale? Are we too greedy or too proud to abandon our chance to make fabulous wealth at a low tax rate? What is it, exactly? I cannot pinpoint it; I can only speculate based on my own impressions.
One thing is certain: There is a poisonous aura surrounding the word "socialism," and that aura preemptively sabotages many efforts to implement meaningful reforms to our social system. Sadly, opponents to social reform in the United States do not even understand what the word "socialism" means. And they do not even understand that they are not opposing socialism, but rather incremental modifications to the free market system they love so much.
We have known for more than a century that pure capitalism does not work. Any system premised upon human greed will inevitably become top-heavy and collapse. And purely capitalistic values clash starkly with core principles central to a democratic State in modern times, such as dignity, fairness and equality. From the 1930s until the 1960s, the United States understood that. It made meaningful modifications to the free market in order to mitigate the social shockwaves caused by its cyclical booms and busts. But then the progress stopped. Capitalism failed again last year and people have felt the pinch ever since.
America will not progress as long as it embraces false rhetoric about "socialism." It is not "socialism" simply to safeguard our citizens from economic ruin in a free market system. It is humanity.
Then again, perhaps that is what really rankles Republicans. After all, pure capitalism and humanity don't mix. Genuine humanity is bad for business. Humanity makes it harder to exploit others. Maybe that's what all the Rush Limbaugh rhetoric about "economic liberty" is all about: Liberty means the freedom to be economically inhumane to others in order to advance yourself. Or, phrased another way, liberty means freedom from government regulations that prevent you from being economically inhumane in order to advance yourself.
Against opposition like this, we have a long way to go in this country toward social reform.
Since Barack Obama won the White House last year, Republicans have galvanized their opposition by claiming that Democrats want to introduce "socialism" into American life. They do not really understand what "socialism" means; they just use it as a catchall pejorative to label anything they don't like. They don't like anything that makes them pay more taxes or finance other people's welfare. They don't like anything that transfers money to so-called "wasteful programs," like health care, education and environmental protection. They know that the word "socialism" sends shivers up American spines, so they use the word to describe everything they're not. They even criticize other countries for embracing "socialism."
But all these critiques fundamentally miscomprehend "socialism." The United States is not a socialist country, not even close. True socialism means that the State owns all property and controls the means of economic production and distribution. It also means that every citizen is literally equal to every other citizen. It is essentially humanitarian in theory, even if historical examples show that it can tragically fail in practice. No matter the historical record, there is nothing even remotely socialist about the United States. Americans live for private property and class distinctions. If they were socialists, they would not strive for these things; in fact, they could not even own property. Democrats are little different than Republicans in this sense. Neither party wants to abandon the free market system. The only debate is how much they want government to "interfere" in the free market.
This is the point at which Republicans stray into conceptual ignorance. They think that any government interference into the free market is "socialism." Yet this overlooks a trend that has evolved in the West at least since the early 20th Century: Increased government supervision over private economic enterprise. Governments in traditionally capitalist countries understood that leaving all economic functions to the free market led to labor exploitation, dangerous goods and unfair social relationships. Democratic governments (or at least quasi-democracies like Great Britain and the United States) also found that unbridled capitalism tended to subvert constitutional principles, such as human dignity and equality.
For these reasons, governments in traditionally capitalist countries began encroaching upon private economic liberties for the public good. They instituted labor control boards, product safety boards and oversight committees. They enforced minimum wages and guaranteed workers the power to fairly bargain with management. They even began creating social security nets and health care systems for their populations, distributing tax revenues in such a manner as to realize the dream of a better society for all. These reforms were all "social" in nature, but they never completely replaced the free market. Rather, they merely tempered the free market, reconciling principle with economic reality. Yet Republicans today call such efforts "socialism." This is simply untrue. If anything, Western Nations have "modified free market" systems, not socialist systems.
European Nations have generally made many more "social modifications" to their free market systems than the United States. For many reasons, Europeans have been willing to curtail unbridled economic liberty in order to bring greater social advantages to their populations. This is the reason why many Europeans do not understand why Americans cannot resolve their "health care mess." For Europeans living in "modified free market systems," it goes without saying that every citizen has a right to medical care at State expense. Yet in America, that sentiment is not so widespread. Here, there is always a grave tension between social "guarantees" and economic freedom. When social "guarantees" mean that some people cannot amass as much money as they could without the guarantees, they staunchly oppose any effort to curtail their economic liberty. This is the reason why social modifications to the free market system in the United States are much more modest than in Europe: Too many people resist them in order to preserve their ability to make more money fast.
Both the United States and European Nations are free market societies. Both allow private property. Both have central banking systems, stock exchanges and tolerate massive class distinctions. But citizens in European Nations have allowed government to restrict their economic freedom more than their American counterparts. In exchange for those restrictions, they live in more secure circumstances: There is universal health care, ample housing and free education. European Nations understand that pure free market life is not easy. Employment depends as much on the winds of the market as it does on individual ability. In that light, they made sacrifices to provide a safety net against the market's inevitable "down periods."
By contrast, the United States does not provide such a safety net. True, the United States does provide health care to the elderly, the disabled and those who serve government. It provides modest income to retirees and injured people. It also allocates some funds to protect citizens against homelessness and ruin. But that's about it; America's commitment to "modifying the free market" essentially stopped in the 1960s. Since then, any effort to make "European style" changes has met with angry cries of "Socialism!" Both Europe and the United States made substantial changes to their free market systems in the decades after the 1929 Crash. But only Europe continued along that path after the 1960s. Once America asserted global dominance, it somehow decided that caring for its own people was no longer a top priority.
I think this is an unfortunate development. Americans should not shy away from "European style" improvements to our social order because they are supposedly "socialist." Europe embraces free market capitalism, just like we do. It simply imposes greater controls on unrestricted economic liberty than the United States. Those restrictions translate into tangible social benefits in the form of health care, consumer protections, access to justice, labor oversight, transportation, child care, unemployment insurance, pensions and education. People do not go bankrupt financing their education in Europe, nor do they die waiting for a private insurance company to approve surgery. They might pay more taxes to finance these social protections, but they know they will always have a place to stay or health care if they get sick. Unlike Americans, they do not need to worry about losing their precious jobs if illness strikes. Yet all the while, they can own private property and perhaps get rich. Just because they enjoy social protections at government expense does not make them "socialist."
Why does America reject these things? What makes us so different from our European counterparts? Do we treasure our rugged "do-it-yourself" spirit so much that we tolerate social injustice on a massive scale? Are we too greedy or too proud to abandon our chance to make fabulous wealth at a low tax rate? What is it, exactly? I cannot pinpoint it; I can only speculate based on my own impressions.
One thing is certain: There is a poisonous aura surrounding the word "socialism," and that aura preemptively sabotages many efforts to implement meaningful reforms to our social system. Sadly, opponents to social reform in the United States do not even understand what the word "socialism" means. And they do not even understand that they are not opposing socialism, but rather incremental modifications to the free market system they love so much.
We have known for more than a century that pure capitalism does not work. Any system premised upon human greed will inevitably become top-heavy and collapse. And purely capitalistic values clash starkly with core principles central to a democratic State in modern times, such as dignity, fairness and equality. From the 1930s until the 1960s, the United States understood that. It made meaningful modifications to the free market in order to mitigate the social shockwaves caused by its cyclical booms and busts. But then the progress stopped. Capitalism failed again last year and people have felt the pinch ever since.
America will not progress as long as it embraces false rhetoric about "socialism." It is not "socialism" simply to safeguard our citizens from economic ruin in a free market system. It is humanity.
Then again, perhaps that is what really rankles Republicans. After all, pure capitalism and humanity don't mix. Genuine humanity is bad for business. Humanity makes it harder to exploit others. Maybe that's what all the Rush Limbaugh rhetoric about "economic liberty" is all about: Liberty means the freedom to be economically inhumane to others in order to advance yourself. Or, phrased another way, liberty means freedom from government regulations that prevent you from being economically inhumane in order to advance yourself.
Against opposition like this, we have a long way to go in this country toward social reform.
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