UNCOMFORTABLE SUBJECTS : PRIVATE RACISM

A REFLECTION ON RACE IN AMERICA

I want to take some time to mention what I'm planning to write over the next few days. I think it's especially important to lay out my intentions this time because I am about to venture into very difficult territory.

Whenever I set out on a new intellectual endeavor, I always think of my mentor: Friedrich Nietzsche. In this instance, I think about the title to one of his aphorism collections: Uncontemporary Observations. Nietzsche did not care whether he wrote about subjects that ruffled traditional feathers. He purposely contradicted the expectations of the "the present" and "contemporary" society. His ideas at times recapitulated themes from distant history. At other times, they foretold the future. In either case, he was not "contemporary." To the contrary, he purposely defied "contemporary."

Writers face constant pressure to be contemporary. After all, you can't be successful if you don't write to meet present expectations. Yet no one ever evolves without taking daring chances; and writers are no exception. By accident, I find myself in early 21st Century America: A strange, confusing, conflicted, changing civilization. There are certain subjects that we simply do not talk about, or at least we do not voice certain sentiments about them in public. It is irrelevant what we privately think about these "taboo" subjects. We just never voice what we really believe. Sometimes our beliefs are not even conscious.

Race is among those subjects. Personally, race is an obsession of mine. It frequently inspires my writing because it is so maddeningly relevant. Yet there are certain things we simply do not say about it, no matter how often we think them.

Race has played a pivotal role in American civilization from our earliest history. Through race, we have seen just how low American civilization can fall. Through race, we see our principles challenged. All our grand rhetoric about equality, dignity and fairness falls flat when applied to the American experience with race. It is no surprise that much of my satire involves racial realities in the United States. After all, when we honestly view race in America, we see several different Nations living in one. And they aren't all equal, no matter what the law says.

But I struggle with my own conflicts about race. In my writing and in my public expressions, I vociferously advocate equality. I believe that everyone in this country--no matter their origins--should have equal legal opportunities and a fair shot at success. I truly believe that. It is only just. We cannot claim to live in a just society if some people do not have the same chances for success simply because of their ancestry in a certain country or a certain continent.

Yet even in saying this I feel myself a hypocrite. In fact, I come close to a confession when I say that I am a racist. But we all are. Americans simply do not understand that racism comes in many shades. Some are overt, but most are extraordinarily subtle. Everyone in the United States is a racist in their own fashion; you do not have to be David Duke to be a racist. Rather, every American--including declared liberals--harbors deep-rooted cultural expectations about the "ways" of different ethnic groups. Every American believes on some level that people in other ethnic groups are "different" and "act differently" than they do "because that's the way they are." They do not necessarily mean it in a malicious way; but it is ever-present. And it is racism.

We are racists the moment we say: "Two guys and a black guy entered the room." I was raised with these distinctions. I also grew up in a distinct cultural background (southeastern Connecticut; and as the biological product of hardworking Northern European Protestant descendants). Both by nature and by operation of economic forces, that cultural background was racially exclusive. For the longest time, I never thought I was racist. How could I be? After all, I always learned that it was "bad to be a racist" and that I wasn't a racist because I did not publicly say bad things about people in other ethnic groups. But my own family--the same family that taught me these abstract lessons about race with the best possible intentions--cultivated a set of cultural values in me that made me completely dissociate myself from other races. Those values also made me intuitively judgmental toward anyone who did not share them. And on a subconscious level, I began to believe that my values were normal, while others were not. That was racist.

Racism is everywhere in the United States. It is on everyone's mind all the time. And it is intensely private. When white people eat at a restaurant and a black beggar enters the restaurant, I challenge everyone sitting there to say that they do not harbor certain negative assumptions about black people: "Why doesn't he work? Why do they beg? Why are they all so poor? They're all like that..." they think. They might be ferocious liberals and believe in equality. But in that cultural situation, I challenge them all to say that they do not make immediate judgments about black people in their own private minds. And it is not their fault: It is simply a function of their own cultural backgrounds reacting to another cultural background.

America elected Barack Obama. But that does not mean we are not beyond racism. My "uncontemporary observation" on this subject is that EVERYONE IS A RACIST. It is just a question of degree. We may bear no conscious ill-will toward other ethnic groups. Yet when we make even the most subtle assumptions about them, we are racists. Even disadvantaged ethnic groups engage in racism. I challenge any black person to say he harbors no assumptions about white people when placed in a social situation with them: "He's not going to be fair with me. He's not going to treat me right. He's going to condescend to me. He's going to exploit me. He's going to disrespect me. He's going to fire me because I'm black. That's what they all do. White people are mean and will hurt me any chance they get." Racism goes in both directions--all the time.

Overcoming racism is about more than turning to the law for superficial equalization. Overcoming racism is a mammoth cultural endeavor; and we are nowhere near achieving it. Until we truly harbor no assumptions or expectations about "how other ethnic groups act," and until we truly do not think "How typical" when someone from a particular ethnic group acts in a particular way, we are racists. Yet we do these things all the time without even knowing it. We are merely giving expression to the combined weight of our respective cultural heritages. Heritage bears down upon us in America as in no other country on earth. Nowhere on earth have so many disparate cultural traditions been thrown in with one another. And nowhere else has such burning intolerance arisen when those traditions clash.

Let me be clear for the record. I live my life to avoid racism in all things. But I am still as racist as every other American because I cannot honestly say that I do not occasionally make negative assumptions about other ethnic groups in difficult situations. In this sense, we are all racists. When a black youth wearing a doo rag, low pants, a crooked hat and gangster-style sports garb acts rowdy with his friends on a subway train, I intuitively think: "He is up to no good. He's going to cause a scene." I wish I didn't. But I do. I tell myself I shouldn't think it. I challenge any white person from my cultural background to claim the very same thoughts do not flash in his mind in the same situation.

I have no solutions to the racism problem. The best we can do is to forbear as much as we possibly can in our external behavior. We must try to understand one another as best we can for the sake of order and coexistence. It is relatively easy never to "act like a racist" or "say racist things" in public. It is easy not to be David Duke. But it is not so easy to truly drive racist thoughts from our minds in pressing circumstances.

I wish we weren't all racists. I really, really do. But we would all be dishonest if we said we weren't. And I will immediately call anyone a hypocrite who denies his own racism. Racism is not just the overt hatred we hear about in groups like the KKK. Racism is also about unconscious economic segregation. Living in a part of town that no black person can afford is racist, too. Supporting an economic system that perpetuates racial inequalities is racist, too. After all, why do most wealthy white people live in areas that black people cannot afford? Because they won't have to be around black people. When black people are around, it's a "bad neighborhood." Even using the term "bad neighborhood" is racism. It is no coincidence that "bad neighborhoods" are always the poor, black areas. And it is racist to assume the poor, bad areas are always black. Yet people who claim not to be racist use the term "bad neighborhood" all the time.

Consider a white real estate broker who thinks he is not a racist. He says to his client: "You don't want to live above 96th Street. That's a bad neighborhood." Why? Because black people mostly live there. How can that not reflect deeply entrenched, racist assumptions about black people? Think about how often we use terms like "bad neighborhood." They are racist. And most barely comprehend why.

Racism in the United States is exquisitely subtle. It is the inevitable byproduct of placing so many cultural backgrounds in close proximity to one another, along with the natural human propensity to resent those who are different. As such, racism is everywhere. I know it's not popular to say. But that does not mean we cannot honestly grapple with it. Is it terrible? Of course it is. But there are lots of terrible things about American life; and in my view it makes more sense to call a spade a spade than to pretend it's not.

This is my uncontemporary observation for the day.

FACTS DO NOT NEED TO BE OFFICIAL; THERE ARE NO "REAL FACTS"

OESTERHOUDT STRIKES

I went to Starbucks this morning to buy a coffee. I wasn't really thinking about anything. I was groggy and I was battling a cold. But as I waited for the barista to serve up my venti bold, I overheard the man behind the espresso machine say to his coworkers: "Wikipedia is written by us. Those aren't real facts."

My mind immediately sprang into action. I really did not care about the man's opinion about Wikipedia. Everyone knows that you need to read Wikipedia with a grain of salt. Its reporting can be unreliable, just like any other source. But I took serious issue with his assertion that Wikipedia does not contain "real facts" because "people like us" write it, as if "regular people" are incapable of reporting "real facts."

I was saddened for two reasons. First, the barista's comment revealed the widespread--and servile--public belief that "facts" must flow from certain "official" sources. Second, it revealed the belief that "regular people" do not deserve credibility when they report "facts."

Let us begin with "facts." More than a year ago, I struggled to formulate a workable definition for "facts." Everyone thinks they know what "facts" are. They think "facts" are "things that actually happened." But it is impossible to really know whether something "actually happened" if you were not there to perceive it. Everyone else must rely on second-hand reports to form an opinion about "what actually happened;" and that opinion may not reflect what "actually happened" at all. Facts intertwine with belief; a person calls something "a fact" as long as he subjectively believes it to be true, even if it is not. A person's belief, too, is a "fact." It is a "fact" to say: "John believes that Mary robbed her mother." It is not necessarily true that Mary robbed her mother. But if John believes it, John's belief about it is "a fact."

Viewing all human existence as a whole, most "facts" are incredibly banal. It is a "fact" that I just moved my eyelid and that I just pursed my lips: I perceived these "acts" through my visual and tactile senses, so they are facts. Facts are rarely newsworthy, and almost never "the stuff of history." Yet many people mistakenly believe that "facts" must be "official." Like the barista, they believe that something is not a "fact" unless some reputable source reports it. To use the barista's term, only certain sources can present "real facts," not plebeian sources like Wikipedia.

What is a "real fact?" How does a "real fact" differ from any other fact? After all, a "fact" is any event, act or condition that is objectively verifiable and perceptible by the human senses. Your own emotional state is a "fact" at this very moment. Whether you're wearing blue jeans right now is a "fact." These are "conditions" and "acts" perceptible by human sense. The New York Times will never report these "facts," but they are still facts. Anyone can recount facts. As human beings, we all can recount our sensory impressions through memory and language. Put simply, the power to recount facts does not require a reputable press pass or an advanced degree.

Facts do not distinguish. There are only "real facts" to the extent that another person chooses to believe them. Source is irrelevant to the inquiry whether something is a fact. Source is only relevant to the question whether a reported fact is credible or reliable.

But the barista confused theses issues in a deeply troubling way. He not only manifested a belief that certain sources were not reliable. He also revealed a belief that certain sources cannot even report "facts" at all. According to the barista's logic, only reputable sources dispense "real facts." Sources like Wikipedia do not. Yet this is pure nonsense. Wikipedia definitely reports "facts." It reports "acts, events and conditions that are objectively verifiable and perceptible by the human senses." True, its reports might contain inaccuracies and falsehoods. But that is a danger inherent in all reporting. And in the end, "facts" are not about "what actually happened," but rather about "what we are willing to believe." Both Wikipedia and the New York Times face the same "factual" dangers every day when they report on matters that occurred beyond their writers' own sensory range. Both Wikipedia and the New York Times ask their readers to believe their words to be facts, no more. In that sense, they are exactly the same.

It is dangerous to believe that only certain sources have the power to dispense "facts." When people believe that only certain "official" reports deserve credibility as "facts," they disempower themselves. They yield their power to judge the truth for themselves by conditioning their belief systems on "official sources." The barista's comment revealed this servile dynamic at work. He demeaned Wikipedia because "regular people" write it, not "official sources." As such, he refused to even believe that it reported a single "real fact," as if any fact were more real than another.

Worse, the barista tacitly acknowledged his inferior station in our society's truth-creating hierarchy. Our society perpetuates the notion that truth can only proceed from certain "official" sources, like news agencies, universities, government offices, courts, churches and science labs. While those sources might deserve credibility in particular circumstances, the ultimate decision whether to believe something is entirely individual. And when people do not do their own research by investigating as many sources as possible, they subject themselves to dominant power systems. They accept some reports as "fact" solely because they flow from some exalted source, not because they verified the reports themselves.

We all can perceive the outside world. We know facts because we perceive them. We can report what we know. When we are honest, we know our word is the truth, even if we are not an "official source." We might even write an article about our knowledge in Wikipedia or some other popular publication.

Yet according to the barista's logic, we do not deserve belief. More substantially, we are not even recounting "real facts," even if we saw them with our own eyes. Only "official sources" can dispense "real facts," not regular people. That is not just weak. That is outright capitulation.

I wish more people would understand that we all can report facts as long as we can perceive and communicate. All facts are "real" as long as we believe them. And we do not have to be news agencies to deserve belief.

WHAT WOULD YOU DO FOR $40,000? THE PRICE OF BELIEF

AN ESSAY

Sometimes I wish I weren't so cynical. Cynicism is my life philosophy. Although it almost invariably leads me to the truth, I don't really like it. Although it has predicted the future for me more than once, I wish it hadn't. After all, cynicism assumes that everyone has selfish motives and will ultimately take action to satisfy their own interests. That is a pretty bleak view. Yet in our obligation-filled commercial world, it is a consummately realistic one.

I wish I weren't so cynical because I want to believe that everyone does not have a price. Whenever I think about cynicism, I inevitably struggle with principles. After all, a principle stands at odds with expediency. Self-interested people are always "expedient" when it is necessary to fulfill their aims. Principles, by contrast, are inflexible; they do not bend to expediency. Yet all too often in history we hear about "principled" men who stood up for larger ideas to a point, then caved in order to enrich themselves. In other words, every man--and every principle--has a price. The question is merely how much money it takes to convince a man to abandon what he believes.

As a cynic, I find it almost axiomatic that men sell their principles for the "right price." If human beings truly have innately selfish motivations and act ultimately to satisfy their own interests, then no larger idea could ever induce them to ignore themselves. It is natural to expect men to sell out or betray their beliefs when enough gold appears on the table. Although popular mythology teaches us to revile men who do this (the Judas story is the classic Biblical example), we are never surprised when it happens. We live in a difficult world. No one wants to go hungry or die. If it came between adhering to principle and eating, how can we blame a man for simply "betraying what he believes?" It is easier to revile a man who sells out simply to profit. But sometimes men sell their beliefs just to eat or sleep--or to save their families.

Yet we admire men who refuse to compromise their principles for a price. We admire them precisely because they are so rare. Again, cynicism provides a good way to understand why we deify "martyrs" like Jesus Christ and Saint Thomas More. Both men died because they refused to abandon their principles despite pressure. Both had opportunities to take payment and shut up. Both knew they would die for refusing to renounce their beliefs. And they still refused.

From a cynical perspective, we assume that men will always sacrifice their principles for personal gain or to save themselves. Overwhelmingly in human experience, that is what happens. But when it does not happen, we immortalize the person who resisted the impulse to be selfish. Put another way, when a person defies the cynical expectation to act only for himself, he becomes a saint-like figure--or a saint outright. This is what happens when men adhere to their principles. It leads to eternal honor. And that explains why both saints and honor are rare. Everyone has a price: But those who don't become legends.

But I'm not writing about legends today. I'm writing about everyone else who does have a price. And while it might be pathetic to have a price, I argue that it is completely forgivable.

Why is it forgivable to be a dishonorable person who abandons principle whenever profit beckons? It is forgivable because we inhabit a world that expects us to value profit more than honor. No one pays our way in this life. We learn early that we must make our way through the commercial thicket by any means necessary. Without money, we are finished. We can't pay our rent, we can't feed our children and we can't eat. We spend our lives struggling to find ways that yield money; and we never get enough. We learn that profit is good because profit protects us from hardship. When we profit, we stave off bill collectors, bankers and landlords. We feed our children. We increase our comfort and avoid worry. We stay warm. By eliminating a key source for worry, we actually gain the capacity to enjoy ourselves--at least in theory. We are only human; we have bodies. Profit protects our bodies from ruin. If it comes between preserving our bodies from ruin and adhering to a principle that could cost us our bodily comfort, the natural human response is to preserve our bodies.

Only saints spite their bodies for their beliefs. For everyone else, a price will suffice to buy belief.

Some people require less enticement than others. Potential profits not only dissuade men from adhering to principle. They also encourage men to brutalize their fellow man. Profit underlies criminal motivations crime as well as dishonorable ones. In the movie Fargo, for example, two ex-cons agree to kidnap a man's wife for $40,000. Various difficulties intervene and they murder three people in the process. Due to these "unforeseen complications," they demand $80,000 rather than $40,000. Before the drama ends, another two people die and no one makes a dime. The detective who arrests the killer--exceptionally played by Frances McDormand--then says: "All that for a little bit of money. There's more to life than a little bit of money, you know."

That may be so. But money motivates just about everything that people do, even murder. Contract killings have price. Lives--like everything else in the free market-- have a price, too. How much does it take to encourage someone to kill another? Is $40,000 too much? Some people in American society make $40,000 a year; others make it in one day. How about $10,000? $1,000?

This might all seem macabre. Still, the fact remains that potential profits bring out the worst in people. As bad as that is, however, I still think there is a good explanation for it: People in our society learn to be desperate for profit. Without it, they think they will come to ruin. So for those closer to ruin, there is a greater motivation to do unspeakable things for relatively little money. There might be more to life than money. But try telling that to those who don't have much. They are willing to do just about anything for what seems a pittance to others.

How much potential profit would it take to convince the average person to commit murder? How about lying? How about sacrificing integrity or honor? How about acting in a way that clashes with one's conscience? What if a job requires a person to violate his conscience, but if he loses the job, he loses his livelihood? How much does a conscience cost?

Against this background, can anyone resist a sufficient price? Is anyone noble enough to ignore themselves? That's my real question. All I can say is this: Cynicism tells me, as a general matter, that people can be bought. But there are a few extremely rare cases in which they cannot. I find this sad because it really does not take much for a stronger person to cast aside a weaker person's beliefs. Beliefs and conscience are individual. They are subjective. They belong to the person who holds them and no other. If a "little bit of money" is all it takes to sweep them away, what does that say about the value of individuality in our society? Where are the courageous people? Where are the people who will not abandon their beliefs for a price?

All I know is that they are not in the United States Congress.

DOMINIC CARTER, EVIDENCE LAW, HEARSAY AND TRUTH : IT IS NEVER EASY TO SAY WHAT "ACTUALLY HAPPENED"

AN ESSAY

Earlier this week, I read about Dominic Carter, a disgraced New York TV anchorman. Last year, authorities charged Mr. Carter with domestic abuse after his wife complained that her husband tried to strangle her during a fight. She later recanted her story, claiming that a mysterious "day laborer" was the assailant, not her husband. That did not faze the prosecutor. He proceeded with the case against Mr. Carter.

Mr. Carter appeared in Queens County court to answer the charges last week. In addition to flatly denying that he "had done anything wrong," he begged the judge to dismiss the case because he was "too important" and had "many friends in New York State government." He dropped several names, including Judith Kaye, the Chief Judge of New York's highest court. The judge was flabbergasted, admonishing Mr. Carter: "Don't drop names in here! You know better than that!" She did not dismiss the case. Mr. Carter's employer publicly condemned his conduct and appeared ready to fire him.

Mr. Carter decided to fly to Kansas City after his hard week back home. While waiting to take off, he stood up and made his way toward the restroom. Although no one exactly knows what happened next, a flight attendant screamed: "I want this man off the plane. He tried to assault me." Mr. Carter vigorously denied the accusation, explaining that he "must have bumped into her" while "bending over to tie his shoes." In any event, the flight attendant won the debate and Mr. Carter was ejected from the plane.

Police arrived to investigate the complaint. They determined that the flight attendant caused the altercation. They did not file charges. Mr. Carter took the next flight without incident.

I recount this story because it made me think about proving things. Evidence law represents our legal system's attempt to inscribe past events with "truth." I have written many times that it is impossible to know "the truth" about anything without being personally present to perceive it with our own senses. Yet we must rely on reports to formulate our beliefs about almost every event in our lives. We cannot sense everything that happens on earth. So we must put our trust in stories. Evidence law tries to assign credibility to stories. It also tries to screen out information likely to confuse the truth rather than find it.

Consider Mr. Carter's relatively banal story. The question is "what happened on the plane as he walked down the aisle?" Did he "deliberately assault" the flight attendant? Or did he really bend over to tie his shoes? Was it an accident? How do we know? We certainly weren't there. I read about the conflicting stories in the newspaper. How, then, can we satisfy ourselves about "what actually happened?"

Let's suppose the authorities decided to put Mr. Carter on trial for assault. To prove assault, the State would have to show that Mr. Carter intended to touch the flight attendant in a harmful or offensive way, and that he did touch her in such a way. From a philosophical standpoint, it is extremely difficult to prove intent, because intent exists solely in another person's mind. When threatened with punishment, a person rarely confesses to what he "actually intended to do," so evidence law requires us to look to external factors to "infer" intent. In other words, we must look to observable facts (ie, behavior, words) to conclude an unobservable fact (the actor's intent).

Mr. Carter's defense would depend upon his ability to show he did not "mean" to offensively touch the flight attendant. That is an intent defense. But to prove his intent, he would have to point to external factors. The best way to do that would be to call witnesses who directly perceived the event, preferably from a close distance. They could say what they saw: Did he slap the woman? Did he raise his arms in a threatening way? Did he "look angry?" Did it "look like he meant to hit her?" These are visual perceptions, and they carry the most weight when attempting to convince a listener to adopt "the truth" about a particular event.

But what about words? We can correctly infer a person's intent based upon his verbal conduct. What people say (and how they say it) can lead us to guess what they feel, intend and think. Still, whenever words enter an evidence question, the analysis becomes much more complicated. Everyone knows the word "hearsay," but fewer know the legal definition. In popular understanding, "hearsay" simply means "reported speech from someone else." In evidence law, however, it has a much more technical meaning. It means any "out-of-court statement offered to prove the truth of the matter asserted." See Federal Rule of Evidence 801(c). "Statements," in turn, mean "oral or written assertions or nonverbal conduct of a person, if intended by the person as an assertion." See Fed. R. Evid. 801(a). Applying these definitions, we see that even the defendant's own words can be hearsay if he repeats them in court. In short, hearsay does not have to come from "someone else," nor does it even have to be verbal.

This introduces a serious problem in criminal cases in which the defendant tries to explain what he intended to do. At the same time, the prosecution has an advantage over the defendant because another evidence rule permits a "party-opponent" to introduce an "opposing party's statement" against him. See. Fed. R. Evid. 801(d)(1)(A). This means that the opposing party here (namely, the prosecutor) could use Mr. Carter's statements against him, but Mr. Carter could not use his own statements to defend himself. For example, if Mr. Carter wanted to prove that he said "I was just bending over to tie my shoes" after the flight attendant accused him, he could not testify that he said it because it is "hearsay." But if the prosecutor brought in a witness who said Mr. Carter exclaimed: "Get outta my way, biatch" on his way down the aisle, it would be fully admissible against Mr. Carter as a "statement by a party-opponent."

This is a bizarre result. It almost seems unfair. After all, shouldn't people get to say what they said on earlier occasions in order to explain themselves? When the question involves individual intent, the individual is really the only one who can confirm or deny it. Yet evidence law turns away from this "best source" because it presumes that accused individuals will not tell the truth.

Thankfully, evidence law offers another way for Mr. Carter to get his statements before the jury. Although he could not testify that he said: "I was just bending over to tie my shoes" after the flight attendant accused him, a different witness could. Federal Rule of Evidence 803(3) provides an exception to the hearsay rule for statements relating to the "declarant's then-existing state of mind," including their "intent." In this case, if a nearby passenger heard Mr. Carter say: "I was just bending over to tie my shoes" immediately after the flight attendant screamed at him, it could be admitted to show that Mr. Carter did not intend to harmfully touch the flight attendant. It would not be hearsay because the defense does not offer it to prove the "truth" that Mr. Carter actually tied his shoes. Rather, it would offer the statement to prove the declarant's (ie, Mr. Carter's) then-existing mental state: Namely, that he did not intend to offensively touch anyone.

I mention all this to show how difficult it is to prove things. It is even more difficult to prove them according to technical evidence rules that prohibit people from explaining what they actually said, yet permit others to use their words against them.

Do all these rules bring us any closer to the "truth?" I don't think so. In the end, ascribing truth to a story depends as much on available evidence as it does to pure intuition. In my view, lawyers make a colossal philosophical blunder when they think they have a greater claim to "uncovering truth" because they apply technical evidence rules. No man-made rule can change the fact that human beings have limited senses. When it comes to believing something that allegedly happened outside those senses, one man's guess is virtually as good as the next man's.

INTENT AND THE FIRST AMENDMENT : POLICING THE IMPOSSIBLE

AN ESSAY

Over the last few weeks, I've had the chance to read some Supreme Court cases. I always keep a long list of cases I want to read. I have not had much time to write as much as I'd like lately, so I've taken the chance to read a few. That's not to say that Supreme Court cases freshen my outlook. To the contrary, they often confirm my overriding belief that the Supreme Court is full of shit. As a satirist, I need to see foolishness at work in order to properly mock it. Both sadly and thankfully, the Supreme Court keeps me well-stocked with preposterous arguments, as well as unabashed ideology masquerading as neutral legal principle.

If I had to choose an area of constitutional law that interests me the most, I would choose the First Amendment. The First Amendment is the soul and conscience of the Constitution. It is the intellectual nucleus of our liberal republic. Although the Framers may have conceived it very differently than the way we understand it today, it is a beacon of individual hope in an otherwise dully administrative document. The First Amendment protects the individual freedom to speak, write, think and express ourselves as the people we are. It forbids government from punishing us because we hold beliefs or profess religions. It also guarantees a free press, ensuring that--at least in theory--every voice has a forum to be heard. While that may not technically be true in an age when money translates into the power to circulate messages, it at least espouses a strongly positive ideal: That all voices have worth, no matter how much the majority rejects them.

These are metaphysically good principles in which anyone can believe. In fact, they are so good that both American patriots in the 18th Century and revolutionaries in later times died for them. Without the First Amendment or something like it, we could not truly say what we mean in life. And when we cannot say what we mean, we cannot be who we are. In that sense, the First Amendment is all about individuality. That is inspiring. That is why I like studying it. It is not just about property and penalties. It is about ideas and expression. There are not many legal areas that impact such profoundly philosophical questions. I like profundity more than banality.

But there is a sharp distinction between First Amendment theory and Supreme Court practice. For better or worse, nine men and women have the sole authority to determine whether government violates First Amendment principles in individual cases. In these clashes between the individual and government, the Court sometimes favors liberty. At other times, it permits government to stamp out individual self-expression. Supreme Court justices say they "rule according to the law." But in First Amendment cases--as in virtually all hotly-debated constitutional areas--the justices barely mask their own political and ideological leanings. They use law merely as a cloak to justify deeply biased political conclusions. Behind all the technical analysis and supposed detachment (many justices abandon detachment altogether) stands stark, flawed humanity. Despite their pedigrees, resumes and degrees, justices are human beings. And human beings are woefully imperfect.

When it comes to the First Amendment, the justices' personal values influence everything they do. If they do not like certain messages, they will find a way to voice hostility toward them. This takes some artifice, of course, because the Constitution forbids government from suppressing speech "solely because it disapproves of the content." But the Court has fashioned doctrines to outmaneuver this result. It allows government to target speech if it artificially regulates the "time, place and manner" in which the speech occurs. So if a city wants to stop communists from speaking, it can say they can only hold a parade on Tuesday at 3 AM in some uninhabited back alley. Obviously, government does not like communist messages. Although it cannot literally ban communism as "content," it can achieve the same result by targeting the "time, place and manner" of communist speech. In this way, the Supreme Court allows government to cloak its own hostility toward certain ideas by phrasing its disapproval in more "neutral ways." The result is often the same: Government does not like certain speech and successfully suppresses it.

Our Supreme Court has burrowed deeply into the First Amendment. The freedom to express individual ideas carries so many exceptions that it is now almost an illusory right. Without going into exhaustive detail, government can suppress speech not only because it occurs in "inappropriate places (ie, schools)," at "inappropriate times (ie, late at night)" or in an "inappropriate manner (ie, too loud)," but also because the speech itself is categorically "obscene," "defamatory," "inciting," or "reasonably likely to lead an average person to come to blows with another." The burden lies on the government to establish that the "dangerous speech" falls into one of these categories, but the Court has been surprisingly accommodating toward government over the years. In fact, it has been so accommodating that it has permitted government to regulate speech even beyond the "traditionally unacceptable categories."

Renton v. Playtime Theaters, 475 U.S. 41 (1986), provides a ready example. That case involved a municipal effort to crack down on porn shops. It was clear that the city simply did not like porn, even though porn is technically "speech" under the First Amendment. So the city enacted zoning laws that forced porn shops into run-down industrial neighborhoods. The law treated porn shops differently solely because they engaged in the porn business; in other words, their speech made them targets. But the Court did not call this "impermissible content regulation." Rather, it fashioned a new exception to the First Amendment: the "secondary effects doctrine." Through this sleight of constitutional hand, the Court proclaimed that government does not violate the First Amendment if it merely wishes to regulate the "effects of speech on the community," rather than the "speech itself." Under this approach, the city in Renton just had to say it enacted the law because it wanted to keep crime down and property values up. Then it said that porn "speech" caused crime to rise and property values to sink. The Court validated the restriction and the porn shops had to move.

In 2002, the Court revisited Renton in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). There, the city enacted an ordinance forbidding more than one "adult business" from operating in the same building. No other business was subject to the restriction. The city said it enacted the ordinance because it wanted to control the "secondary effects" of "multiple adult businesses" in the same vicinity. It invoked the earlier Renton case for support, even though it had no real evidence to show that splitting up two related porn shops in the same building would reduce crime or boost property values. The Court was satisfied with a cursory 1977 study that anecdotally linked porn shops with higher crime rates, even though that study predated the ordinance by more than a decade. In sum, the Court had no problem sustaining a clearly speech-prohibitive, discriminatory law by invoking a doctrine it invented only sixteen years earlier.

In my view, this shows the Court's great willingness to ignore the First Amendment when its members do not like the speech at issue. Obviously Chief Justice Rehnquist and Sandra Day O'Connor did not like porn shops...just look at them:


As much as the majority in Alameda Books may have believed that "constitutional jurisprudence" dictated their conclusion in the case, I venture that it was simply a value judgment. Republicans (all five justices in the majority here were Republicans) don't like porn--well, at least publicly they say they don't. Those values influenced their decision whether to allow government to regulate it. After all, the law in Alameda Books specifically targeted only porn shops. The regulation turned upon the content of the speech. Although that seems to violate the First Amendment's ban on "content regulation," the Republicans found a way to sidestep that result. How? Simple: Values. When a justice doesn't like speech, he or she will find a "legal exception" to suppress it. That's the problem with law.

But there is more to the story. Justice Kennedy issued a bizarre concurrence in Alameda Books that brings another troublesome issue to the fore: Legislative intent. Kennedy--also a Republican, but a grandiose one with a penchant for self-righteous oratory (he's Catholic, too)--said he was "troubled" by the liberal argument that the statute in the case targeted porn shops "solely because of their speech." So he quieted himself by reasoning that a city could rely on the "secondary effects doctrine" as long as it did not "proportionally affect speech." In Kennedy's view, the law in Alameda Books was sound because it had an effect on bad "secondary effects" (good) without affecting the "quantity of speech" (bad) in equal measure. Put another way, because the legislature only specifically targeted "secondary effects" and allowed porn shops to open under separate roofs, it reasonably lowered "secondary effects" without "completely muzzling their expression."

This is a fanciful distinction. In essence, it appears that Justice Kennedy believes that a legislature's stated intent suffices to determine whether it has adopted a "content-specific" speech regulation. Here, it seems obvious that the Los Angeles city council did not like porn shops because they engage in "porn speech." It offended the councilmen's values. They simply did not like the speech. But they escaped constitutional consequence because they said they were concerned about "secondary effects," not the "speech itself." The statute visibly discriminated against porn shops based on their speech, yet Justice Kennedy said that was fine because the legislature had the right intent.

It defies belief to say that a city would not "reduce the quantity of certain speech" if its regulations drive its speakers from the marketplace. Why else would the city want to close down porn shops if it did not like what they were saying? It is too easy to mouth the words "secondary effects" when in fact the legislature flat-out doesn't like porn.

These are important questions because speech regulations are dangerous. When government succeeds in suppressing speech, it gains precedential authority to suppress even more. When the Supreme Court simply goes along with the program, our rights as individuals steadily decline. True, no one wants to crusade for a porn shop's right to sell smut. But the First Amendment does not distinguish between right and wrong speech. If it is speech, we presumptively protect it. Individual freedom depends upon the freedom to express ourselves. And when the Supreme Court slowly allows government to bar us from speaking in certain ways, our liberty slowly suffocates, too.

In short, Supreme Court justices should defer to the individual interest in self-expression in doubtful cases, not the value-laden judgments of local governments. If it allows government to regulate speech content merely by proffering a flimsy "secondary effects" justification, it will not take long to dismantle the First Amendment. If there is one constitutional guarantee that we must defend, it is the guarantee that government will presumptively not regulate the substance of our thoughts and expressions, no matter how unpopular they may be.

ANOTHER BREAK

My partner is coming home today after 23 days in the hospital. For the next few weeks, I will have plenty to do as he acclimates back to life; helping him make that adjustment will undoubtedly affect my ability to write posts every day. My schedule is already filling up with appointments and errands. Nonetheless, I will try my best to find the time and energy to write. I am not going anywhere. Hopefully, I will get a chance to reflect and assemble some new ideas in the meantime.

Thanks again to all my readers. I wish I could be more productive these days. But you know the reasons why I can't be. Still, I have amassed over 1000 pages now. If you ever thirst for an essay or satire, just scroll down the archive list and enjoy. I promise I will write when I can. And when the most serious stresses have past, I can assure you that I will post every day again.

I am staying positive! I really know that things will turn out for the best. There is little evidence to support me in that belief, but that doesn't matter to me. Sometimes you just know things.

I will write as soon as I can.

Oesterhoudt

THE NATIONAL ALLIANCE FOR STIRRING YET EMPTY RHETORIC : AN APPEAL FOR ACTION AND UNITY

By : Mr. Burgess E. Gottlieb, Jr., Ph.D., Chief Logician and Chairman of the Board of Trustees (1995-present); Simon F. Bamberg IV Emeritus (Deceased 1890) Professor of Logic, Yale University, New Haven, Connecticut (1960-present); The National Review, Theater Critic (1967-present); Senior Fellow, New York Illusionists' League (emphasis on disappearing acts) (1981-1990).

We can solve any problem. A Nation of laws trusts its principles. And trust in principles solves problems. Thus, when we trust in our principles, we can solve anything. Logic favors our cause. Logic, too, can solve any problem. We believe in logic. That is why we are on the road to success.

There are those who say that our Nation will never recover from economic turmoil. We disagree. A well-argued speech can put all doubts to rest, no matter how severe. As Horace said many centuries ago: "Despite the darkening sky, our resolution shall brighten the horizon." With strong language and compelling logical transitions between paragraphs, we are not just confident of victory. We are certain of it.

Our opponents claim that this is no time for college essays. They even say that papers that might have earned an "A" from the most vindictive, anally-retentive graduate student can do nothing to solve intractable problems that now plague our society. In sum, our opponents claim that rhetoric merely distracts attention from hard reality.

We have a simple response for these naysayers: "Not on our watch." As a National Alliance committed to Empty Yet Stirring Rhetoric, we trust in the power of pleasant, conventional language. We believe that properly moving from verbal premise to conclusion--all the while employing traditional devices such as allusion, metaphor and contrast--can overcome any practical difficulty on earth. No tax quandary, budget deficit or even health crisis can resist a moving speech that draws parallels to sunrises, sunsets, tides or other natural phenomena.

True, practical problems demand practical solutions. But rhetoric is an exception to that rule. Just as every doctrine must yield to a caveat, so too must every practical problem yield to rhetoric. We believe in language, not complexity. We believe that people respond better to conventional linguistic displays than gloomy hopelessness. We believe that people feel better when they hear traditional speech techniques, even if the speech signifies nothing at all. Assurance goes a long way. As rhetorical masters, we understand that.

Solutions are irrelevant compared to comfort. No matter how fiercely the storm may rage outside, a great speech will always give hope. A great speech can lift even the most broken heart. Let the defeatists talk about bankruptcy and disorder. As believers in rhetoric, we speak a different language. We speak the language of hope, inspiration and grandeur. Even if our words have no basis at all in reality, they can still move hearts. And that's all that really matters. Who needs reality when you have great rhetoric?

We stand on a precipice. We stand against the wind. Today we stand. Tomorrow we rise. On the third day, we shall prevail. There is no day but what we make. These are our days. We are what we say. We are the People because we are free. Let freedom ring. We refuse to go quietly. We shall never surrender.

No issue can withstand a well-placed cliché. No problem can frustrate an inspiring, empty phrase. We are the People. We are unafraid. We are not afraid to believe in empty words. They make us feel good. We expect to hear them. We like to hear what we expect.

We believe in logic, too. Like rhetoric, logic assures us. Men named George all live to be older than 50. If a man is named George, he will not die at 36. This man is named not named George. Therefore, he might die at 36. Who can resist logic?

What difference does it make in the end whether we actually solve problems? As long as we speak fluently and make logical sense, we have succeeded. We understand that people do not really want solutions; they just want to hear what they expect. Logic and rhetoric sound nice. One idea flows from the next. People deserve to hear what they expect. That is why we believe in logic and rhetoric. Convention is more important than reality.

What is reality but what we believe? Rhetoric makes us believe. Thus, rhetoric can shape reality. Our opponents say that we do nothing but talk. But talking creates reality as much as action does. And when enough people listen to us, we truly change the world. That is why our rhetoric is not as empty as our critics think. We even use similes to help our listeners grasp our points: "Like a sturdy oak, our roots run deep."

We do not need to explain. It just sounds good. And people believe in things that sound good.

Now is now. Right now means right now, not yesterday. Yesterday means yesterday, not last Friday. It is time to seize the moment. Put your faith in appealing language. What do you care about reality? Let language become your reality. Isn't it about time that you believed in something? Do not put your faith in fickle facts and figures. Put your faith in inspiring phrases, hackneyed slogans and memorable one-line syllogisms. Life is complicated enough as it is. Give your mind a break. You must simply decide to believe. You must simply accept the rhetoric. Then you will be free.

You know you want to. You want to suspend your disbelief. You want to say: "I am the People" without guilt or embarrassment. You can do it. Answer the call. Be part of the solution, not the problem. All you need to do is listen. All you need to do is be free.

Let us all unite for a simpler world. Let us all unite for language we can all anticipate and admire. This is not a time for division. This is a time for healing and love. Healing and love are better than discord and strife. Belief in rhetoric leads to healing and love. Healing and love lead to unity, not division. Therefore, you must believe in rhetoric if you wish to unite. It is not just the most comforting choice; it is also the logical one.

You see? Rhetoric does not exclude logic. In fact, good rhetoric makes logical sense. In that way, it marries emotion with reason. It offers the best of both worlds. Great rhetoric lets us feel at the same time it prompts us to think. Just as the blacksmith smelts ore and charcoal to make steel, so too does the great speaker marry reason and emotion to create rhetoric.

But enough of that. It is time to believe. It is time to trust. Give in to rhetoric; you can do it. Haven't you endured enough uncertainty in your life? Well, it's time to move on. It's time to let yourself be swept away in grand rhetorical fantasies. There is no reality but what we make. Today is yours. You can believe.

Today is a moment in time. Grasp your moment. Time is yours. There is no time but today. And it is time. Together is better than apart. Together, we can do anything. Let's get together. Because together is better. It is time to get together.

FLAG-BURNING AND NATIONALISM : WHOSE FLAG IS BETTER?

A REFLECTION

Flag-burning is an interesting subject. So are flags. The first thing I notice when I get back to the States from a long trip to Germany is that there are flags all over the place. In Berlin, you only see flags on the Bundestag building, and that's understandable because it's the seat of government. But private citizens don't fly German flags over their homes, businesses don't drape them over their lobbies, people don't sticker them to their cars and they certainly don't wear flag lapel pins, even the newscasters.

By contrast, it seems that flags are everywhere in the United States. From the moment you step off the plane you see flags. There are flags hanging everywhere at the airport. You can buy little flags at the gift shop, people wear flag T-shirts and even the Dunkin Donuts shop sports a flag, since it is very patriotic to buy pastries and coffee. Outside the airport, there are even more flags. You can't drive through many suburban neighborhoods without seeing flags in windows, flags on poles on lawns, and, if you go inside a house, flags on quilts and blankets, or flags in picture frames. If you get a cocktail at a bar, you might find a paper-flag toothpick in it. Car dealers fly enormous flags over their parking lots. So do amusement parks and waterslides. In New York, every commercial building has a flag in it. Every apartment building I've ever lived in has had a flag in the lobby. I don't know how paying rent to a private landlord (who probably hates taxes) is patriotic, but what do I know?

America is unabashedly nationalistic. It doesn't like flag-burning because it loves flags. Many Americans attach mythical status to their flag. Personally, I don't like unchecked nationalism. I think it's fine to be proud of your country, but I don't feel the need to blare it by displaying flags and shouting down those who burn them. Not only that, but Americans don't really object to flag-burning "in the abstract." You can burn an Afghani or Russian flag and no one would give a fart. No, Americans don't like American flag-burning. So it's more a selective objection than a principled one.

Congress criminalized American flag-burning in the late 1980s. In a brave moment, the Supreme Court invalidated that law. But many saw the same case as a betrayal and reviled the Supreme Court for deciding it. Trouble is, we have a little thing called the "First Amendment" which guarantees "free speech." I think flag-burning is speech. You might hate what the speaker believes, but I think he has a right to say it without being jailed.

Beyond that, I find America's obsession with flags very disturbing. Relentless nationalism is dangerous, pure and simple. If anyone knows that, it's the Germans. That's why they aren't so zealous about flying flags all over the place anymore. 50 million dead worldwide (including genocide) convinced Germany that blind patriotism really wasn't a healthy prescription for anyone, including themselves.

I have difficulty according blind respect to any symbol. True, the American flag has long stood as a symbol for democracy, freedom and self-government. But sadly our Nation often falls short on its promises. As a "world leader," it often comes across as intransigent and churlish, not compassionate or principled. If people burn the American flag, they probably object to some perceived injustice America has committed. In my view, it makes no sense to categorically condemn flag-burning without at least acknowledging what the speaker means to say. Perhaps America truly has done something blameworthy. If we are committed to our principles, shouldn't we want to rectify a bad situation rather than ignore it?

This is the trouble with nationalism: It prevents people from rationally considering divergent opinions, even if they voice legitimate objections. From a nationalist's perspective, there is the "American way" or there is "no way." But life is never so simple. Still, America's love affair with flags all too often reveals that many Americans believe exactly that. In my view, simple-mindedness is not something to be proud of. It is just foolish. And it stifles rational dialogue that could lead to progress.

VALUES IN THE LAW : WHY YOU CAN'T BE A LAWYER AND A COMMUNIST IN AMERICA

AN ESSAY

Values play a huge role in the law. They infuse American legal doctrine just as they infuse all other associational activities in the United States. Still, values do not blare as loudly through the law as they blare through in more visible discourses, such as popular politics. In fact, values dominate the law in a much more subtle way. After all, according to popular understanding, the law "is blind." In other words, it is somehow detached, fair, unbiased, neutral, cerebral, rational and just, even though it governs biased parties and hotly contentious subject matter.

But it is a mistake to think that values do not infuse the law just as deeply as they infuse popular politics. Through ostensibly "fair" and "neutral" rules, our common law actually reinforces a dominant value system, namely: A complex, bewilderingly unbalanced system prizing industry, commerce, individual responsibility and vested property rights. Broadly speaking, legal rules favor those who own property. They provide predictable guidance in disputes over property, land, liability and money. They encourage unbridled property exchange. They arm property owners with numerous advantages to stop claims that their property or business injured someone. Superficially, the rules appeal to justice. Yet when push comes to shove, the common law's commitment to "vigorous, predictable commerce" and "personal responsibility" (a value judgment in itself) takes precedence over "abstractions." Lawyers who dedicate themselves to justice in practice all too often find themselves submerged in a world of unforgiving procedure and dizzying, often counterintuitive "everyday customs." When they insist on justice before grumbling judges with full dockets, they often invite ridicule rather than respect.

In the end, the common law is not about justice at all. Sometimes justice happens to flow from the rules. But it's not required.

To be a really effective lawyer in the United States, you have to possess certain values. Specifically, you need to have a basic respect for property rights, social distinctions, governmental institutions, order, "appropriateness," commercial activity and the notion that people exist in the world to profit from one another. These values all find expression in American legal rules. They are not necessarily "correct" or "just" values in themselves; they simply reflect dominant values. After all, law has always reflected dominant social values. Those with power dominate others. They obviously will want to brand their views about the world as somehow "official," "correct" and "sacred." In the West, commercial power generates practical power. That is why the common law so rigorously incorporates commercial values.

You cannot be a really effective lawyer if you do not wholeheartedly accept these values. If you have qualms about the notion that profit is the reason why human beings interact with each other, you will have difficulty advocating for a business client who claims he lost money in a deal. If you cannot understand why a person should lose a lawsuit because he filed something a day late due to unavoidable circumstances, you do not possess the "order values" (ie, "deadlines are deadlines") so necessary to bring reliability and predictability to commerce. If you find it repugnant that a client can get away with fraud by inserting the word "or" instead of "and," you are too morally sensitive to be a lawyer. Lawyers comply with rules and zealously manipulate them in order to win money for their clients. Those are the values necessary to be an "effective advocate" in our system. In the law, a conscience is not an asset. It is an impediment.

On some level, all lawyers know this. Until the late 1960s, Bar Associations in virtually every State refused to admit prospective attorneys who conceded membership in the communist party. Some Bar Associations even asked applicants whether they agreed with communist philosophy or Marxism. Even sympathizing with socialistic ideals was sufficient to deny admission to a hopeful lawyer. This may sound appalling to anyone who believes in the First Amendment. But for anyone who understands the values inherent in the common law, this hostility toward communism is hardly surprising. In fact, it is perfectly warranted.

Why is communism relevant to law practice in the United States? Simple: Because socialistic values clash fundamentally with the values enshrined in most common law doctrine. State Bar Associations correctly presumed that anyone who truly believed in Marxism would not be able to "effectively" or "zealously" represent clients in a capitalist system. After all, communism teaches hostility to free market enterprise, economic exploitation, private property ownership and power relationships built upon commercial inequality. It also teaches respect for the dignity and equality of man as an individual, not as a commercial "instrument." Given these values, no one who truly believes in communism could serve a client committed to owning more property, dominating more employees, making more profits, seizing more land and basically becoming richer than his neighbor.

For better or worse, lawyers in the common law system are essentially accessories to capitalistic enterprise. Their very craft defends these values. A communist lawyer, then, would be a walking contradiction.

Our Supreme Court ultimately concluded that States could not condition Bar admission upon matters of conscience or belief, including belief in communist principles. But this does not mean that communists make good lawyers. In fact, I think that States' former restrictions on communist sympathies among lawyers made abundant sense. In our system, after all, lawyers owe a duty to "zealously" represent clients. It is an "adversary system." One side fights to the figurative death for his client's interests, while the other does the same for his client's interests. In most cases, a client's "interests" mean "property interests:" Will the client make money or lose it? To be "zealous," the lawyer must do everything under the sun to vindicate those interests. How could he do that in good conscience if he believes in communism? How could he pull out all the rhetorical stops to either enrich one person or drive another into poverty? Quite simply, he could not. In fact, his communist principles would disable him from putting up a fight at all on behalf of someone who just wants to make more money. Lawyers are ineffective when something blocks their ability to fight tooth and nail for their clients. If a lawyer truly believes in communism, his beliefs will surely block him from advancing legal rules that result in unfairness, economic inequality, class distinction, exploitation and crass private profit. In this light, determining whether a future lawyer believes in communism has prime relevance on the question whether he can "effectively" represent a client.

I write all this to demonstrate that the law is neither neutral nor detached. Contrary to popular belief, it is not "blind," nor does it always fall fairly. Put simply, it is a human institution that voices the values of the society that creates it. In the United States, power created law to suit its purposes. For the most part, those purposes are commercial. Commercial values dominate the law just as much as they dominate the minds of those who practice them. Why do criminal penalties for theft increase according to the value of the goods stolen? Why is stealing a car worse than stealing an old shoe? Isn't the act the same? Why does the law disfavor restrictions on the ability to sell land? And why does the law equip landowners with defenses that make it easy for them to defeat the claims of people who suffer harm on their land?

In all these cases, the answer is the same: Because the law enforces the values of those who own property and seek to gain more. Common law rules make it easy for them to make profits, sell goods, sell land, develop land profitably and defeat lawsuits brought by those who suffer injury due to these activities. They all reflect a dominant value judgment. Those who write rules will naturally tilt the field in their own favor. This is precisely what property owners have done with the common law: They have inscribed their self-serving commercial values into the rules that govern our society. If you own, you're in luck. If you don't, you're not.

Those who own lots of property certainly want fairness and justice for themselves. They commit themselves to it on paper. But when fairness and justice interfere with vigorous commercial activity, "exceptions can be made" and "procedures must be followed." And they expect their lawyers to defend their values and their interests, not start mouthing about "justice." A client in our system does not want abstract justice; he wants "justice for me." Generally, that means making a profit or saving a potential loss.

Against this background, it is no surprise that State Bar Associations ostracized communists. Communists just do not fit in a club dedicated to greasing commercial wheels and furthering profit ambitions. In fact, they probably would gum up the works by talking about "extraneous issues," like avarice in society, inequality and sympathy for disadvantaged people.

Common law judges don't care about all that. They want to know whether the testator used the words "within twenty-one years of the death of a life in being at the time aforesaid," or whether a paper was stamped on the 14th rather than the 15th.

Justice? That doesn't help resolve a case. Rules do.

BEYOND A REASONABLE DOUBT : WHY IS IT SO HARD TO GRASP?

AN ESSAY

Legal doctrine abounds with verbal formulae. In law school, students memorize these shibboleths. They are the “magic spells” that allow them to “correctly” analyze any fact pattern. They rarely get a chance to reflect on what these “spells” mean from a grammatical perspective, or even whether they are prudent. Rather, law school students act under immense time pressure; they can do little but learn the formula and move on the next one. I doubt that many lawyers ever really ponder famous “legal formulae,” either. But since leaving the profession, I think about them all the time. And I see that there is nothing intrinsically prudent or sacred about them. They are merely administrative tools intended to bring illusory order to the nebulous disorder of human experience.

Everyone knows the phrase “beyond a reasonable doubt.” It appears all the time in movies, plays and even rap songs. Jay-Z named his debut album Reasonable Doubt. It has a mythical ring to it; it sounds appealing, even majestic. But does anyone really understand it? What is it? People assume that lawyers and judges understand it. They even think that it leads to the truth. Yet this is error. “Beyond a reasonable doubt” is an invention. It is a good invention because it seeks to protect individual liberty from wrongful criminal conviction. But it remains invention. It does not magically entitle judges and lawyers to find the truth.

“Beyond a reasonable doubt” is a “standard of proof” that governs criminal trials in the United States. In 1970, the Supreme Court famously held that the Constitution’s Due Process Clause requires every State government to apply the standard in every criminal trial. In re Winship, 397 U.S. 358 (1970). Unless the State proves “every fact necessary to constitute the crime charged beyond a reasonable doubt,” said the Court, it denies the defendant Due Process. Id. at 364 (emphasis added). This is hopeful language. After all, “beyond a reasonable doubt” means that a jury must indulge virtually every inconsistency in the evidence in the defendant’s favor. If there is a “tie,” it goes to the defendant—and individual liberty. It forces the government to put all “reasonable doubt” to rest about the defendant’s guilt before it can take away his liberty—or life.

But today I am not writing about constitutional law. I wrote about the law on this subject as a law student. “Beyond a reasonable doubt” interests me now because it impinges upon much larger concerns, like reason, truth, evidence and belief. Unlike many other legal doctrines, this one deals with facts: What do we believe about someone? What “actually happened?” More importantly, how “certain” must we be before we condemn someone to prison or death? And because “beyond a reasonable doubt” is a “verbal formula,” it has grammatical weaknesses. Lawyers do not think about these things. They just look to see what courts said about past cases.

What is the real issue, then? The real issue is evidence at trial. The State seeks either to imprison someone or execute him. It charges him with a crime, a written definition encompassing certain “bad behavior.” To convict him, it must put forward evidence proving that his conduct falls within the written definition. The prosecutor, jury and judge were not there to see this alleged “bad behavior.” There might be rumors about it. Perhaps there are witnesses; perhaps not. For better or worse, those called upon to decide a defendant’s fate must evaluate evidence to formulate the “truth” about “what actually happened.” No juror actually sensed or perceived the alleged event. They must engage in second-hand observation and decide whether something happened. Evidence gives them sensory fodder with which to judge “the truth.” They might hear a witness’ account or see a video recording. They might hear about footprints, or bloody gloves or even confessions. Yet they might also hear that witnesses have an interest in condemning the defendant, or that they have poor eyesight, or that they were distracted, or that the police coerced a confession. All these things constrain their Herculean task: To decide “the truth,” even if they were not there to perceive it.

Yet juries cannot simply speculate on the evidence. “Beyond a reasonable doubt” is an attempt to prevent juries from simply “imagining” things about the defendant. Rather, it forces them to look solely at the evidence. Remarkably, many courts over the centuries have not understood this, let alone the “everyday folk” who comprise juries. As recently as 1994, the Supreme Court dedicated an entire opinion struggling to explain what “reasonable doubt” actually means. Victor v. Nebraska; Sandoval v. California, 511 U.S. 1 (1994). There, the Court said that “reasonable doubt” does not mean “merely possible doubt,” but rather doubt that, “after consideration of all the evidence, leaves the jury with an abiding conviction, to a moral certainty, that the charge against the defendant is not true.” Id. at 8 (quoting Commonwealth v. Webster, 59 Mass. 295, 320 (1850)). It also said that “reasonable doubt:” “[W]ould cause a reasonable person, in one of the graver and more important transactions in life, to hesitate before accepting certain facts as true…it is doubt that, after full and fair consideration of the evidence, leaves you with and abiding conviction, to a moral certainty, that the accused committed the crime charged…you may be convinced beyond a reasonable doubt yet be fully aware that possibly you may be mistaken…you may find a defendant guilty upon the strong probabilities of the case, provided they are strong enough to exclude any doubt of his guilt that is reasonable…it is an actual and substantial doubt.” Victor v. Nebraska, 511 U.S. at 18.

Did the Court really need to spend so much time on the question? After all, it would have been easier to simply look at the phrase from a grammatical perspective. “Beyond” is a preposition that implies “movement past” a particular point. It implies linear motion: One moves along a path; one reaches a point on the path; one moves beyond the point. Anything before that point is not “beyond” the point. A jury can only convict a defendant if it decides that the evidence moves beyond “reasonable doubt” about his guilt. That is the magical point on the path. The evidence must move “past reasonable doubt” in order for the State to condemn the accused.

This is the point at which the Supreme Court should have considered “reasonable doubt.” The word “reasonable” appears everywhere in the law. Unfortunately, very few courts apply a consistent definition. In many cases, judges simply use the word to impose their own standards on certain behavior, namely, standards demanding steady living, hard work and “contribution to society with regard to the property rights of others.” Yet this “normalizing” definition really misses the point. After all, “reasonable” derives from “reason,” specifically, the human capacity to find truth through the senses. A person is “reasonable” if he believes only what his eyes, ears, nose and skin nerves tell him. It is “reasonable” to believe that snow fell last night if one awakes to see the ground covered in snow. It is verifiable. It is possible to infer the fact that snow fell while you slept from the fact that you see snow on the ground now. It is based on perceptible evidence. But it is not “reasonable” to believe that God exists, because no one sees God. Well, some people say they do, but do “reasonable people” believe them? No, they don’t. “Reasonable people” believe in their senses. They are empirical. They doubt anything that their senses do not perceive. For a person who trusts reason, “truth” is a matter of perception. If the person is not there to perceive an event, he listens to what others say about it, looks at physical residue concerning the event, then decides what “reasonably happened” based on things that can be perceived. This is “reasonable thinking.”

Reasonable doubt, then, is any doubt warranted by perceptible evidence. It rules out all speculation. It is purely evidence-based. The Supreme Court did not need to introduce extraneous concepts like “hesitancy” and “important life decisions” in order to explain “reasonable doubt.” It should merely have said that “reasonable doubt” refers solely to sensory evidence. It is doubt that arises from things we perceive. As long as the evidence permits us to doubt something, we have “reasonable doubt.” Doubt is not “reasonable” if we simply “imagine” it. And if we have “reasonable doubt” in any way, we have not moved “past” or “beyond” reasonable doubt. This is the grammatical way to understand the formula “beyond a reasonable doubt:” If we have it, we are not beyond it. We must acquit the defendant. But if we don’t have it and merely imagine it, we are beyond it. That means we must convict him.

I write all this because I think many lawyers and judges merely learn verbal formulae without seriously considering what the words mean. It is one thing to mouth phrases in order to score points on a test. It is quite another to genuinely ponder what those phrases mean in both grammatical and philosophical terms.

“Beyond a reasonable doubt” is a compelling phrase for several reasons. For one, it reinforces the law’s commitment to “reason” above all else. There is no faith in the law. Spirit is irrelevant. There is only body, property, the senses and “tangible things.” Reason can govern these things; yet it is banal. After all, there is nothing remarkable or spiritually uplifting about arguing over who saw what and who owes whom what dollar amount. These are the concerns of both reason and the law.

Second, “beyond a reasonable doubt” represents the law’s attempt to sort out facts. Courts have an immensely hard time doing this because facts are elusive. No matter what courts say, facts are never determinate. Facts merely represent belief based on second-hand evidence. When courts compose long “fact sections” in their opinions, they do not recount “exactly what happened.” They are merely reciting what the court below them “believed” after applying an arbitrary standard. Put simply, courts do not like talking about facts. Facts are messy. And in the end, they are arbitrary. Once one court believes a fact, it is almost impossible to alter that fact on appeal. This has nothing to do with “truth.” It has everything to do with “administrative convenience” and “interpretation.” Judges don’t reopen factual disputes because they inevitably degenerate into “he said she said” wars long after the event. Judges get to say: “OK, this is what happened,” even if their version is not really true. Interpretation is power: The power to announce the truth, even if untrue.

Reason can help us answer many questions about our existence. I trust it in all situations in which it is valid. I think it is valid in criminal law, because criminal law addresses matters to which reason applies: External behavior that can be “directly perceived” or “inferred.” It does not involve faith or belief; at least, in should not. “Beyond a reasonable doubt” is a good standard in criminal trials because it forces juries to apply only their reason, not their passions or their prejudices. Sensory evidence produces belief or doubt in the mind. When it produces doubt in a criminal case, the defendant must go free. In this sense, the standard favors liberty. As long as jurors understand what the words “reason” and “beyond” mean, they should never have a problem understanding the “beyond a reasonable doubt” standard.

But perhaps this is exactly the problem. After all, jurors—like all human beings—do not always use their reason at times when they should. Perhaps it is too much to expect that people will always be reasonable.

SOME THINGS CHANGE FAST

A REFLECTION

This morning I thought about how fast some things change. Sometimes history can change in an instant. So can our lives as individuals. Developments are not always measured or even reasonable. Sometimes we deserve things; sometimes reason scolds us because we "should have anticipated results." Yet sometimes events strike from the blue and change everything overnight. There is no logic in these sudden changes. They defy the notion that life can be planned. In large part, they strengthen my belief that something beyond reason and "chance" works in our lives.

In 1942, the Japanese were winning the Pacific War. In May, a Japanese fleet was steaming toward Midway Island. The Japanese planned to destroy America's aircraft carriers and take the island. Japanese pilots were far superior to the Americans at this stage in the war. They had experience. They had high morale. They had never lost a battle. They had every reason to think they would win the upcoming battle.

But they did not. By chance, the Japanese had to switch their bombers from ground attack mode after they discovered American ships nearby. For twenty minutes, all their bombers stood dangerously exposed on carrier flight decks while crew members switched torpedoes to bombs. Fuel was strewn all over the place. At that precise moment, an American bomber squadron was overhead. They had no idea the Japanese were refueling and rearming. The American bombers swooped down at this critical moment. They sank three of Japan's four mightiest carriers in five minutes. It was pure luck. Japan never recovered from this catastrophic blow. For better or worse, America did not win the Battle of Midway by skill. They won because they profited from fortune.

Such moments do not just occur in war. They occur in everyday lives, too. Consider my life partner's story. One night two years ago, he walked into a gym. At that moment, he was healthy and had everything to live for. He suffered a freak burn accident in the gym. He spent 15 days in an ICU and almost died several times. Since then, he has never been the same. One moment he was healthy. The next moment, he was crippled. Bizarre accidents happen to many people; I report this incident because I know about it. I have seen how (mis)fortune can radically transform individual lives in an instant.

Things do not always change gradually. Sometimes they change without reason, defying our expectations. Our assumptions can transform in an instant. Sometimes fortune strikes for the better. Other times, it strikes for the worse. No matter how fortune falls, it defies our logic. We cannot account for "randomness," yet "random" events change history and our own lives in equal measure. Some say that we can predict events based on circumstances from which to make "educated guesses" about the future. Yet no one could have made an "educated guess" about the Japanese refueling their planes at the moment the American bombers were overhead, nor could I have made an "educated guess" about the disaster that befell my life partner. When fortune falls, our logic appears woefully inadequate.

Should we then embrace destiny? Does some other power ordain these seemingly random events? I have written that destiny appeals to me--even as an empiricist--because my all-too human senses can neither prove nor disprove it. I am content to believe that there are things I cannot know. This does not mean I subscribe to a particular religion. Rather, studying history and experiencing life both teach me that it is mature to acknowledge limitations to our capacity for knowledge in this world. By the same token, I am deeply skeptical of anyone who claims that "he can know" anything in life. He obviously has not suffered a random misfortune.

On the other hand, perhaps everything is truly random. There is no way to say one way or the other. Yet that is a disheartening thought.

TRUTH IN THE NEWS?

AN ESSAY

Last week, I read an interesting little article in the New York Daily News. See L.I. dad slain uptown, N.Y. Daily News, July 17, 2009. Newspaper reporting interests me not so much for what the writers disclose, but rather for what they do not disclose. Ironically, newspapers ask readers to accept their reports as “truth,” even though close inspection reveals myriad unanswered questions in every article. Even the smallest, most insignificant news stories often conceal luscious “subtexts.” In the past, I rarely thought about subtext. Now that I’ve gained some experience in life, I see that subtext is far more important than printed words. In the end, I never fully trust a news report. I simply use it as a basis from which to draw my own conclusions, applying my own experience and memory to the “facts” presented. In short, I do not rely on the news for “truth.”

So how exactly does “subtext” work? And how do news outlets warp perceptions? Let’s examine L.I. dad slain uptown. It’s a short article. The reporters tell us that a “motivational speaker from Valley Stream, Long Island” named Jeffrey Locker, 52, drove into Manhattan last Wednesday afternoon. He was white. We know this because the News includes a picture next to the headline. We then learn that two young “neighborhood people” in East Harlem (a largely black and Hispanic neighborhood) saw Locker walking into a Deli on Second Avenue at around 3 A.M. Immediately thereafter, they saw him exit the Deli carrying a bottle of water and “some Trojan condoms.” One witness told the reporters that he looked “cool, relaxed.” Two hours later, the same “young people” saw Locker in the driver’s seat of his 2007 Dodge Magnum. On closer inspection, they saw that his hands were tied behind him and there was a cord around his neck. He was dead. According to the “police report,” he had been “strangled and stabbed.”

Upon reading these “facts,” I made my own conclusions. Here was an affluent white man with a successful career as a “motivational speaker.” He lived in the suburbs with his wife and three children. So what could possibly draw him to East Harlem at 3 A.M., park his station wagon on the street, then buy condoms and water? The News does not speculate. But is it not obvious? It is a well-known urban truism that affluent white men often drive into “bad neighborhoods” for drugs and sex. They patronize prostitutes. They buy crack cocaine. They pay for all the “wild things” they cannot get in their “respectable neighborhoods.” They indulge. Then they get on the parkway and head back to their wives and “respectable lives.” Their wives inevitably ask: “Why are you so late?” To which comes the familiar reply: “Oh, I got held over at work.” Why else would this man have been East Harlem? And why else would he have bought condoms? To make water balloons?

You might ask how I know this. My answer: I’ve seen it happen. When I lived in Chicago, there was a “skid row” near my apartment a few blocks from some busy nightclubs. These clubs drew the seedy as well as the trendy. Not everyone went to the clubs; in fact, most came simply to “mill around the streets.” Some preyed on drunk kids staggering home. Women donned high heels and hot pants to attract “business.” And then there was a cadre of wig-wearing black transvestites who flagged down cars and hopped into passenger seats. Most of these cars were “suburban:” station wagons, family-edition SUVs, sports cars. The drivers were all white. They were suburban men who came into the city for “exciting hookups” thinking no one back home would ever know. In short, I know from experience that white men often visit cities in order to get “exciting sex” that they never get at home during their “respectable lives.”

I could not ignore experience when reading about Jeffrey Locker. Nor could I ignore my cynical assumption that suburban white men do not go to poor black neighborhoods for saintly purposes. Perhaps the News did not explicitly mention why Locker was in East Harlem at 3 A.M., but expected readers to make their own conclusions. That may be so. But the report contained some other “facts” that cut against this interpretation. These “facts” try to paint Locker as an “innocent victim,” not someone who knowingly put himself in a compromising position. For example, the article quotes Locker’s wife: “He was going into the city and coming home. He was supposed to be coming home…He was supposed to come home. He wasn’t there by choice.” See L.I. dad slain uptown, N.Y. Daily News, second column, July 17, 2009. It also quotes Locker’s mother-in-law: “He probably trusted someone…He was a very trusting person. That’s probably how it happened. You could sell him the Brooklyn bridge.” Id. Finally, it quotes a neighbor who “often took bike rides with Locker:” “He was a nice, really great guy…He was a really wonderful father.” Id. at third column.

Was the News mocking these people? Or was it genuinely trying to suggest that Jeffrey Locker was a “great father” who was not in East Harlem “by choice,” but rather because he was a “trusting person?” True, these people knew Locker from his “respectable life” in Valley Stream. They likely had no idea that he had secret sexual desires, or at least refused to acknowledge them. But they are the only people quoted. They did not even quote a neutral police source that might have shed some objective light on the reasons why a suburban white male was alone in a “bad neighborhood” at 3 A.M. on a weeknight.

If the News expects its readers to think that Jeffrey Locker was completely innocent and that some “evil minority person” took advantage of him because he was “too trusting,” then it is both racist and naïve. Jeffrey Locker was in the city because he wanted to patronize some prostitutes in East Harlem. He would not have bought condoms if sex were not his goal. He thought he would park his car, buy some condoms at the local bodega, invite some hookers into the car and do what he came to do. But he was playing a dangerous game. He was in a risky position by choice. “Reasonable people” do not go to “high-crime” areas late at night, let alone park expensive cars there. Apparently someone saw him as a mark and attacked him. We cannot know exactly why it happened, but it is not very surprising. It was a crime of opportunity. And it simply defies belief to suggest that someone “seduced” Jeffrey Locker. Did someone “entice him” on his way home to Long Island, convince him to drive all the way uptown, park his car in a “bad neighborhood,” then kill him? That kind of thing just doesn’t happen. Moreover, the unbiased eyewitness statements contradict that scenario. According to the “neighborhood people” who saw him, Locker was “cool” and “relaxed” as he walked from a Deli carrying condoms. That does not sound like some overly trusting, misled soul to me.

In sum, this was a white suburban man who was unsatisfied with his boring sexual life at home, so he went into the city for some fast, anonymous sex with black and Hispanic prostitutes. This was a man with secrets. He was leading a double life. To his neighbor, he was a “really nice guy” and “a great father” who “rode bikes.” But the “neighborhood people” saw his dark side. Who knows how many times he had gone to East Harlem in the past? All this was clear to me when I read the article. I saw a sexually frustrated white middle-aged suburban man using lower-income city dwellers to play out fantasies that he could not indulge in his “respectable life.” It is not complicated. It may be embarrassing and pathetic, but not complicated.

Yet the article reported none of these things. To fully grasp what happened in Jeffrey Locker’s case, I had to apply my own experience and analysis. I could not rely solely on the information in the report. Still, newspapers claim to present “unbiased fact” so that we learn the “truth” about “what happened” in particular events. Newspapers report on “matters of public concern.” Murders concern the public. Nonetheless, the article about Jeffrey Locker does not remotely report the “truth.” No one will ever know the “truth” except Jeffrey Locker and the person who killed him in his car. A few witnesses saw Locker two hours before he died. Their sensory recollections provide us some insight about his motivations and why he was in East Harlem. But they know nothing about his final moments.

Despite the News' best efforts—and every reporting company like it—we can never really grasp the “truth” about events we do not perceive. At best, we can interpret what “may have happened” based upon our own experience, memory, intuition, impressions and emotions. When we do that, we do not actually perceive “what happened,” nor do we come any closer to the “truth” as an absolute matter. Rather, we create truth in our own minds. We hear recollections. We read details. We digest reports. These things interact with our own experience to create something we believe. We see events in our mind’s eye even if we never saw them with our real eyes. We think these mental images are “truth.” In fact, they are nothing more than interpretations based on our own experience. To that extent, truth is entirely subjective. And because it depends on experience, no two people will ever precisely agree on what is true. After all, we all draw on unique experiences to guide our interpretations.

At best, we can agree on certain “indisputable details” when analyzing events. Nothing can replace actual sense. But our society demands “truth” about events, even when no one was there to observe them. Our news media answers this demand. In so doing, it assumes a central role in our consciousness. If we cannot be present to experience every event that concerns us as a society, at least we can receive some information upon which to make our own conclusions. Still, how many people really draw their own conclusions from news reporting? After all, as the Locker case shows, news reporters have the power to selectively publish certain details about past events. Those details channel interpretation. Not everyone has the same life experience to tease out the subtleties concealed in a story. In fact, news stories lure the reader into feeling that he is reading “the pure truth” about a past event. But this is delusional. The mere fact that a newspaper describes an event does not make it true. Rather, the fact that a newspaper describes an event should make the reader even more suspicious about “what actually happened.”

I do not rely on any news media for “truth.” But I do not completely discount it, either. After all, news outlets perform an essential role in disseminating details about events. Without them, we would have no information at all about “things that happen.” Beyond that, however, it is up to me to sort out what “actually happened” based upon my own life experience. It is not easy; interpretation never is. Yet if we simply credit everything we hear in the news, we lend ourselves to deception far more than “truth.” After all, we humans have very limited sensory range. Our senses provide the best pathway to “truth” about the external world. Unfortunately, we can use them to grasp a comparatively minuscule proportion of all the things that happen during our lifetimes. For everything else, we depend on language, second-hand reports, stories, memories, distortions, recollections, biased impressions and legend. In all these cases, “we weren’t there” to perceive the event reported. Nor can we really say whether it “really happened.” We can choose simply to believe it did—or did not. And even then, we see something in our mind’s eye that might be totally different than what “actually happened.”

Is there any way to sift through language, fragmented details, memory and bias to find “truth?” Is it a hopeless endeavor? Or worse, do we just reveal our own individual biases when we try to “create truth?”