The Hanover Collaboration

This post is quite a bit after the fact, but it’s something that I wanted to share. As you might have guessed, I was called for jury duty recently and ended up serving on the jury. It was a fairly interesting experience and raised more than a few questions in my mind about our justice system.

This could turn out fairly long, so be warned. But I thought it might be interesting to people who’ve never served on jury duty before.

It all started at the courthouse, at about 9am…

Check out this Reuters news capsule (you might want to pause the accompanying video before it gets past the ad) about burlesque star Dita von Teese. Now check have a look at the corresponding Wikipedia article about Ms. von Teese. If you’re inattentive or pressed for time, these two DeepQuote links cut straight to the chase.

I’m not entirely sure Reuters plagiarism republication of that Wikipedia article fits entirely under “fair use” in the GPL. It’s surprising, frankly, that this problem doesn’t occur more in the opposite direction, with ill-informed netizens copying wholesale onto Wikipedia from existing pages; at any rate, people have been fired for ripping off The Free Encyclopedia before.

Good news for everyone with incompetent housemates. SCOTUS decided today that if the cops want to search a house, and one person at the door says “OK” while the other says “No way!” it’s the ‘no way’ that sticks.

Worried about being too clear, the opinion’s author, Justice Souter, qualified that it isn’t good enough for the objector to be nearby but not at the door.

For those keeping score, Roberts, Scalia, and Thomas dissented. Alito didn’t vote.

The Supreme court decided 6-3 that John Ashcroft did not have the authority to revoke the licenses of Oregon state physicians who perform assisted suicides under Oregon’s “Death with Dignity” Law. Dissenters: Scalia, Thomas and… you guessed it, Roberts. From the NYT

Justice Clarence Thomas also wrote a dissenting opinion, in which he observed that it was “perplexing to say the least” to find the court interpreting federal drug law narrowly in this instance when only months ago it had upheld broad federal authority to prevent states from authorizing the use of marijuana for medical purposes.[1]

It isn’t often when Justices Thomas and Scalia agree with each other and dissagree with everybody else that I find myself agreeing with Thomas.

A neat thing they could do for confirmation hearings would be to have the candidate “play judge” issues currently before the court. If we made him write a few opinions, then we really might get an idea of the kind of a judge that he’d be. I’m going to speculate that Alito would have sided with Ashcroft on this one but, it would still be interesting to read the reasoning.

¹ Full text of the ruling. The quote is from the last page (62).

“Federalism” is a bad word because you can’t be certain what someone means when they say it.

“blah blah blah principle of federalism blah blah.”

Ok, he said ‘federalism.’ Is he supporting the federal government, or is he arguing for an organization of self governing units? When people say federalism I think they usually mean ‘let the states decide.’ But what about the Federalist Papers weren’t those pro-federal government? Or was that just number 10? And why do we call it the ‘federal government’ if federalists support states rights? Maybe I’ve got it backwards… Or maybe this speaker has it backwards. Shit, I hate that word.

I’m pretty sure I don’t have it backwards. Federalism means “more power to governments that are more local.” And primarily it means “let individual states decide.”

Thesis: Everyone supports federalism when it is convenient to their issue in contention, and opposes it when it seems likely to hurt that issue.

No one makes a consistent, principled stand on federalism. Not this political party, or that political party, not you, not me, and not Antonin Scalia.

This doesn’t surprise me. Federalism is one of those self-inconstant concepts like “This statement can not be proved to be true,” or that riddle with the guy who lies and the guy who tells the truth.

If federalism is always right, then should we make it a universal law, or leave it up to the states?

First allow me to make a few definitions, since there has been considerable debate over simple terminology.
I use “abuse” to mean reckless mistreatment without a meaningful objective, for example for fun or in anger. And I use “torture” to mean intentional mistreatment with the intent of gaining information or to cow someone or some other such goal in mind.

When the Rasul and Hamdil decisions came out, there was some anticipation that there was going to be a change in the way we do business with people detained by the executive. It kinda undermined the whole “We’re in Cuba, the laws of the United Sates don’t apply here,” premise of Guantanimo Bay. So let’s try moving them somewhere else. What, there is a problem with that too?

Let’s take a step back. We’ve got some people who we think are bad and we want to lock them up but we don’t want to try them in court. That is either because we would lose or because the context is too secret for court. If we would lose, I don’t think we should hold him. We might be wrong about him being bad, you know. In the other case, don’t you think we could find a few lawyers and judges who are trustworthy enough to hold high clearance?

I think there are two problems with what I just said. First, In the eyes of the executive, it is probably less bad to wrongfully imprison a few people than to let a real terrorist go free. The legal system tends not to work like that.

Second is that some of these people have things in their brains that we want to know. We want to convince them to tell us. But the first thing that a lawyer would tell these people is, “You shouldn’t tell them anything.” I think interrogation is really the key issue here.

You just can’t interrogate people anymore. And you can’t torture them or else you’ll get caught.

We should lock up intelligence officers right in there with the terrorism detainees. I mean as bunkmates. The intel officers could try to make friends with the detainees. I think that would be at least as effective intel as anything else. Sure it would be a shitty job, but the military is full of shitty jobs and this one (unlike the majority of the others) would have a demonstrable impact on national security.

As an added bonus, we can tell the guards that we have done this but then we don’t tell them who are regular detainees and who aren’t. That’ll cut down on the standard abuse.

But it would have to be kept extra secret which means no posting it on the internet… shits…
now what was I about to say?...

We seem to be crawling in the right direction. I am psyched that we are at least scared enough about torturing inmates that we want to ship them to other places to have it done. And once we’ve got that straightened out, it will only take a handful of lucky SCOTUS decisions (just try and be a little more clear next time guys, we don’t want to turn this into another establishment clause) and we’ll be left with no coice but to treat these people like human beings.

I just got out of a very interesting, but poorly attended, lecture by Chief Justice Broderick, of the New Hampshire Supreme Court.

The justice ran over his time by quite a bit, and so his handler only let him field one question. The pre-gunner in the slightly too big suit, with the yellow tie:

“This is kind of a long questions, but a lot of my classmates in my Constitutional Law class hate me because I’m an originalist, and [run on diatribe about how originalism would solve all sorts of problems with the courts, notably it would greatly improve their efficiency.]”

Originalists? I’d shit in their hat. I be they think that they know the one real interpretation of “The Road Not Taken” too. Antonin Scalia, I really like the guy. I’d pick him for Chief Justice. But his originalism is embarrassing. He thinks that if you don’t believe exactly what the Founders believed, then you’re just making it up.

[note, this format, which I endeavor to make my standard, is stolen directly from Carl E. Linderholm’s great classic]

Question: Are there other valid interpretations of the Constitution, besides originalism?

Objection 1: The Constitution is immutable.

Reply 1: A method for changing the Constitution is built into the document itself, Article V., and is called “Amendments.”

Objection 2: Accounting for amendments, the Constitution is immutable.

Reply 2: The Constitution is immutable in so far as no subset of the Constitution can be substituted with any unequal set without being noticed by a Constitutional scholar, and exposed for a fraud. That said, we are not ruled by the Constitution, but rather by men who must interpret the Constitution, so this immutability is mote.

Objection 3: There exists on some Socratic plane and idealized interpretation of the Constitution, and it sits there forever, unchanging.

Reply 3: Even if such a thing did exist, we could see but it’s shadow cast by flickering flames on the wall of our cave, and the original would be worthless to us. How could we hold people accountable to standard which, perhaps, flickered thither when they acted, and yet flickers hither as they are judged?

Objection 4: We can strive to have the correct interpretation of the Constitution by studying the intent of the Framers.

Reply 4: It is impossible to divine “intent” from authored works. For all you know the author’s “intent” could have been to spite his uncle in England, to improve the property value of his farm, or simply to get laid. “Intent” in authorship is without meaning. We have only words that have been written, and these must be judged on their own merits and shortfalls.

I Answer That: Originalism, except as an academic exercise in history, is futile. Do we really want Court which—instead of scientific studies and commentary on the real world—cites private letters between Alexander Hamilton and Daniel Jenifer of St Thomas, or between Daniel Jenifer of St Thomas and Jacob Broom (about whom nothing renders conspicuous), or on a particularly dicta laden decision, an errant Federalist paper? Do we want Amendments to be the only way for the Constitution to adapt to airplanes, nuclear warfare, fetal stem cell research, and the colonization of other planets? What does the Originalists Constitution say about those things anyway?

The Constitution must be read in the light of our own times, because that is the only light that exists by which to read it. If someone claims he can read it in a differently light, then that person is just making it up.

The word of the day. Since we have some law types in the readership maybe someone could help me out with it. I have no idea what it means.

When someone is being abnoxious on Xbox live and I kill them in a particularly humiliating fashion, it makes me feel good. Better still, if the other team is being really unsportsman-like and my team wins anyway. I like that too.

I’ve heard it suggested that this gratification comes from my own cowardice to act similarly. Maybe that’s it, but I don’t think so.

I think it is vengeful spite. Somebody get you angry and you enjoy it harm to comes to them. Which brings me to my point. I don’t think “justice” belongs in the “Criminal Justice System”... at least not in the title. When the state is deciding what to do with someone who has broken a rule, I think there are be more pragmatic concerns to be addressed.

What are the goals we want served? We want 1) to deter other people from doing the same thing. And we want 2) the perp’ to have a maximum (positive) impact on society.

It seems to me that public canings are really the way to go with that first one. They seem to put a lot more advertising effort into how stiff the penaltys are nominally rather than publicizing how harshly they are applied to any particular person.

That part 2) has a lot of aspects. Some people might have their best impact if they just made license plates until they died. Or maybe some we should just kill them right off the bat if they would be lousy license plate makers. Then there is the posibility that someone who would have a negative impact right now is going to change his ways after a while and we should just lock him up until he’s better.

Lastly, we occasionally have someone who is just boarderline positive enough that we probably don’t want to lock him up. But by punishing him we can scare him into being a better person, i.e. with more respect for authority. Wouldn’t it behoove the state to invest the court costs to prevent the potential life of crime that could result if they punish him to leniently?

I mean it totally makes sense. And empirically, every time they make laws stricter, not only does it decrease the the affected crime, it decreases all crime.

So, with Jesus at my side, I am happy to take whatever punishment the state deems is in society’s interest.

—Side Story—
There was this guy who got drunk and drove his car and crashed and a cute little girl got killed. Well they took the guy out of jail from time to time to have him break down crying in front of 8th graders. As one of those 8th graders, I thought it was an effective campaign, (I had been drinking and driving a lot before that you see). But I didn’t really think that the whole jail part was really necessary. I mean, he killed a cute little girl and was crying about that. Let’s suppose that he was doing something really beneficial beforehand. I would have personally preferred that he was still doing that in the time between 8th grader terrification sessions.

Every once in a while I get all righteous about civil rights and how we need to abandon detention activities Guantanimo Bay, Cuba. Luckily this is not one of those times. My favorite slate correspondent Dahlia Lithwick has posted another great article on the legal conundrum presented by Rasul and Hamdil.