“… nor deny to any person within its jurisdiction the equal protection of the laws.” (14th amendment to the U.S. constitution)
Americans, especially right-wing ones, object if laws that protect them are applied unequally – if, for example, it is a crime for government emails to be held on private servers, but not when Hillary does it. But of course, right-wingers, especially American ones, believe that many laws don’t protect; they oppress. (And it is a point of honour in those who call themselves libertarians to believe that even more of the laws are like that.)
In the US, they seem to understand that these two beliefs support each other. The right dislike Obamacare – and were angry when Obama gave some Democrat constituencies waivers and deferrals when introducing it. No-one called them hypocrites for complaining about the unequal enforcement of a law they never wanted passed in the first place. Similarly, no-one seems to have missed the Logan Act during the centuries when it went unenforced, but did even the most fanatic NeverTrumper write “We should be above that” when Trump supporters pointed out that if the act was back in use then John Kerry should be prosecuted under it? Washington’s lobbyist class honours the Foreign Agents Registration Act far more in the breach than the observance, but the MSM seem keener to understate that fact than to denounce as hypocrites those right-wingers who say that now unregistered Republicans have been charged, prosecute some unregistered Democrats.
This attitude, I believe, extends to the first amendment. Legal exceptions to the first amendment (‘fighting words’, ‘clear and present danger’) are few, and the right wants it kept that way. But so long as those exceptions apply to them, the right also want them applied to any left-wing violator. They see that as defending free speech – not betraying it.
Here in Britain, by contrast, confusion reigns. Right-wing blogger Sargon of Akkad jokes about not offering violence to a left-wing politico – and the police visit him. Left-wing BBC comedian Jo Brand jokes about thowing acid rather than mikshake over Farage – and the police do not visit her. Whereupon Brendan O’Neill (who has written freedom-supporting articles in the past) writes in the Spectator (of which the same can be said) rebuking Mr Farage for suggesting that they should have.
(A PC gang once visited a pub where Nigel Farage, his wife and their children were dining, eager to cause harm. And he knows the drycleaning cost of getting mikshake off your suit. So I have a bit more sympathy for Nigel than for any other party leader, even Boris, when he yields to the temptation to wonder whether, despite Brand’s claims, it was not quite only a joke. But let us take it that it was just a joke.)
Brendan appears to be saying the true lover of free speech should not demand “the equal oppression of the laws”. Brendan wants an equal liberation from hate speech laws – Jo Brand must have the right to joke about throwing acid at Farage and Count Dankula must be free to film his dog doing a Nazi salute. I would like that too, but meanwhile,
“It is a settled rule with me to make the most of my actual situation, and not to refuse to do a proper thing because there is something else, more proper, which I am not able to do.” (Edmund Burke)
By criticising Nigel for resisting the double-standard (that Brendan also hates), Brendan implies that Farage’s demand for legal equality, not just Brand’s exploitation of left-wing privilege, is what stands in the way of that equal liberation. I think he is making a mistake – and confusing his mistake with the meaning of ‘free speech’.
I would much rather live in a Britain where neither Sargon nor Jo had a visit from the police – but I don’t. I’d criticise Farage if I thought Jo Brand dissapproved the police visiting Sargon – but I don’t (this pertinent hint merely confirms things I’ve heard her say). Unequal enforcement of the hate speech laws has been an essential part of maintaining them from the start. You don’t fight them by protecting that inequality. Free speech means the state shall not control what we may say. The state has yet more control when it does not just ban speech but bans it arbitrarily. So when people try to end that arbitrariness, they may not be failing to “disagree with what you say but defend your right to say it”, as Brendan claims; they may be defending free speech.
For clarity, let me illustrate with an example programme. Imagine (but don’t hold your breath for it) that PM Boris (radicalised by how he’s been treated, and heading a party purified by defections, internal deselections and/or external Brexit Party rivals) announces a bill to roll back the attack on free speech (e.g. repeal every such law since 9/11). However, he also announces that, while this bill slowly works its way towards the royal assent, his government, to protect equality before the law, will prosecute a backlog of unlawfully-suppressed cases from those years – remarks that were ever so woke, but were also hate speech as defined by the equitably-phrased laws, uttered by people who had also demanded the laws punish far less hateful remarks of their opponents.
– To Brendan (I would guess if I had only the Spectator article as my guide), these prosecutions would be no better than evil revenge, discrediting the cause and making the return of laws against ‘hate’ speech more likely.
– To me, they would be a good way of educating the public about what was wrong with those laws, and also a way to make the left think twice about reimposing them the moment they got back in power. But, beyond these tactical points, they would also uphold the principle of equality before the law.
We will not lack for mind-broadening frenemies to defend even after tolerating ‘equality before the law’ arguments against the loudest “I can say it but you can’t” enforcers of the double-standard. The woker-than-thou of today love purging the woke of yesterday – they will supply.
Equality before the law is good in itself. Demanding equality of oppression before the law is a way to expose a dishonest process. Think carefully before judging it a betrayal of our war against the hate speech laws’ evil goal, rather than a way – that can be both honest in itself and effective – of waging it.
The CPS would laugh at him, not from legal principle, but because they decide who is and is not a political criminal.
Niall writes:
I object to this approach on an additional ground, beyond the two suggested/expected by Niall and the one above mentioned by Rob.
If laws are so wrong as to obviously need replacing (in the likely clear opinion of the public), any (or most) prosecutions that fall under the old law but not the likely new law would be viewed as inappropriate (even stupid) by the public.
Likewise, after the new law was enacted and introduced, prosecutions under the old law (for acts when that was the law) would still probably be viewed by the legal profession as having some ‘legitimacy’. But the public would almost certainly think otherwise.
On this, I have a strong suspicion that there are cases of relevance on the illegality/legality of homosexual relations and of the death penalty for murder etc. [But I’m not a lawyer and do not have details of such things easily to hand.]
Best regards
A great point and a practical action.
If we can’t have the law we want, then the architects of the status quo have to be forced to live by their own laws….
We deplore what you legislate, but we’ll die to make you live by it, at least until you beg to repeal it……
Not to seek the enforcement of unjust laws on their enactors and supporters is to encourage them to further tyranny.
Campaigning for equal treatment before the law while arguing that certain laws are unjust is exactly what lawyers and others have argued as the correct course of action for centuries.
It may not work, but saying “your law is unjust, so, to to demonstrate our righteous zeal and moral purity, we demand that we are the only ones who suffer for it” is a policy whose morality is questionable (note the “we”, not “I”) and one whose efficacy is totally unevidenced.
Please don’t mention Ghandi and civil disobedience. His movement appealed over the heads of the local civil power to a wider electorate, supported by many sympathisers in the press. We haven’t got those.
WRT Rob’s comment: is that a fact? is the CPS above the Law? do victims or the government have no right at all to sue the CPS?
In reply to Nigel’s comment: i am not a lawyer either, but, believe it or not, some of my best friends are lawyers. My understanding is that anybody who has been jailed under the old law, would automatically be freed when the new law comes into effect. But who cares? the process is the punishment, and until the new law comes into effect, people can and should be prosecuted under the old law. Jailing is secondary.
In support of Clovis’ comment: don’t forget that Gandhi said that Jews would win a moral victory if they did not resist Hitler’s attempt to exterminate them.
For the benefit of those who did not click on the 2nd link in the OP, Glenn Reynolds wrote something very much to the point (in 2014):
As i wrote elsewhere, though, this is only one of several arguments that can be made for the tit-for-tat principle.
Excellent article, Niall.
I prefer the way they do things in the USA where the free market has proved beyond any doubt that it can do political tyranny much more efficiently and at no cost at all to the taxpayer. Yay! Private companies win again.
There’s a quote that I’ve lost the source of:
“Every law that isn’t uniformly and promptly enforced, all the time, contributes to public corruption because selective enforcement means someone is using it for blackmail or extortion — and probably thinks ‘that’s what it’s for’ meaning blackmail and extortion have become the norm. So yes, the whole damn thing from prostitution to labor laws to export restrictions to monopoly busters. If you’re not going to enforce it for everybody, all the time, then get rid of it so you don’t have the temptation to become corrupt as you use it for blackmail, extortion, revenge, or for the harassment of dissenters.”
I go back and forth on this – as seems to be the case with others here.
Part of the thing that must not be ignored is that the state does, and perhaps should, have discretion as to whether to enforce a law. This is true starting with the police, then the prosecutor, then the judge and finally the jury (aren’t we libertarians in favor of jury nullification?) Laws are written in the English language and so subject to all the concomitant ambiguity, and subject to the lack of foresight on the part of the drafters. So when a law meets actual reality, and is applied to actual people and actual cases it is often blunt enough to prosecute those who don’t deserve to be prosecuted, and skip those who do. Based on the principle of “let ten guilty go free lest one innocent be punished” the latter is acceptable, but the former is not.
So on the one hand the discretion at these various levels is a good thing.
Where it becomes bad is when the state takes advantage of this situation — by making so many things vaguely illegal that they effectively make everyone criminals, and so subject to the whims of the prosecutorial system. This leads in a very direct way to corruption, gross injustice and grossly unequal application of the law. Niall gives a perfect illustration of this in regards to events surrounding and following the 2016 Presidential election in the USA. Paul Maniford will spend the rest of his life in jail, maybe in solitary confinement, for “crimes” that almost every other denizen of the Washington political class is equally or more guilty of. And the vitriol of the left is no better illustrated by the fact that the State of New York looks likely to prosecute him again for the same crimes just to prevent President Trump from issuing a pardon.
For those of you who favor Jo Brand being treated equally to the other guy, let me ask you this question: do you favor speed cameras? Speed cameras are utterly without bias and they apply the law in a completely fair (which is to say non biased) manner. Were speed cameras to be used and everyone who went one mile an hour over the speed limit prosecuted, then the pressure from the public would be either to change the speed limits to something more appropriate, or, more likely, demand that the speed cameras be trashed.
But surely the latter solution is to say “we want to be subject to the caprice of the policeman rather than have a fair application of the law.” Yet for some reason it seems to be the preferred solution of the general public.
However, like I say, I have mixed feelings on the subject.
Allies and alibis. (a la Thomas Sowell)
Hey, isn’t “discretion” the same as “discrimination”?
There are circumstances where perhaps there’s a case to be made for discretion on the part of LE, but giving a free pass to favored individuals or groups while throwing the book at others is clearly an abuse. Imagine a conservative had jocularly suggested throwing acid at leftists. Can anyone honestly suggest the reaction would still be “Haw haw haw, that’s a real knee-slapper”?
Alinsky:
“Make the enemy live up to its own book of rules.”
“Ridicule is man’s most potent weapon.”
“A good tactic is one your people enjoy.”
@Fred Z
Alinsky:
If we want to behave ethically, should we really be looking to Alinsky as our guidepost? After all, Stalin was effective, but I doubt anyone would recommend we follow his approach.
It really comes down to this: do you believe that the people currently supporting the “hate speech” laws are open to persuasion – on the legal and philosophical bases – that the laws are improper and unfair?
If they are operating in good faith, then persuasion is the best tactic. If they are not – if in fact they see unequal enforcement as desirable and advantageous – then forcing equal enforcement is the best route to overturning the laws.
Based on the partisan split of government, the laws will not be repealed without the participation of the laws’ current proponents. Whether they come around to repeal or not depends on either convincing them, or coercing them.
I think the huge mass of people – who don’t normally know all that much about government, and law, and philosophy – are eminently persuadable. But I think the bulk of people in government who support these laws have already heard all of the arguments, and refused to act, and must be coerced. They clearly don’t respond to public sentiment.
@bobby b
Can you think of any examples of where your strategy has worked? Where an entrenched idea was changed via persuasion and then the law was changed to correspond to public sentiment? And more specifically, can you think of where that happened without a lot of people getting killed?
One example that springs to my mind is segregation and MLK. But there was a LOT of violence there. Plus it had the advantage that the specific injustice addressed was confined to a very narrow majority of the country.
I suppose another example would be the women’s right to vote, or the war in Vietnam/the draft, but again there was a lot of death and destruction that accompanied that too. In the UK the precipitating event was when a woman threw herself in front of the King’s horse at the Derby, her death shocking the King and eventually getting him on the side of the Suffragettes. There probably aren’t too many people willing to die to let Alex Jones talk his nonsense.
But I am honestly curious. The course of history is one of inexorably growing tyranny, followed by bloody events that chopped the uppity down to size. I think there are very few examples where tyranny lessened except by some pretty horrible events. Well few that I can think of, but that might be due to my lack of knowledge rather than anything else.
Fraser:
You have to start by accepting reality: you are not a member of the ruling class. Sorry if i go on and on about this, but this is the basic reality that you have to face.
Once you have accepted the power asymmetry between you and those who make the laws and decide when to apply them*, the next step is to understand that the relationship between you and the ruling class is one of asymmetrical warfare. (I am not talking about terrorism here: apart from ethical issues, terrorism has a proven record of failure.)
So what do you do? you can’t argue with the ruling class, because they don’t hear you. (Perhaps Perry is rich enough to be heard by the ruling class, but if so, he IS a member of the ruling class! In a minority faction, however.)
Alinsky tactics might not be the best way to go, but you have to find a better alternative before dismissing them.
In addition to all that, there is the fact that i would betray my principles if i did not make people live up to their own rules — and i would hate to betray my principles.
* and btw i still would like an answer about the discretionary power of the CPS.
@Snorri Godhi
You have to start by accepting reality
I wonder how many terrible things have happened following someone uttering those words? The most dangerous people in the world are people who believe both that they are absolutely right and that the ends justifies the means.
you are not a member of the ruling class.
Right, and if you think that adopting Alinsky will somehow make you powerful, I think you are mistaken. I agree that we need to accept reality, but to me that is to find some way to create a bubble to live in within the situation we are in. I think some types of political action can slow the rot, but, as I have said many times, liberty doesn’t come back by the vote but by a major conflagration.
I am reminded of one of the seminal books in my life “How I Found Freedom in an Unfree World” by the awesome Harry Browne. Of course many of the strategies he proposes have been gobbled up by the burgeoning state, but that is to be expected, because governments always grow, it is what they are good at, it is in their DNA. The key is to find other strategies.
What you are talking about is the great Libertarian Party dichotomy. A party that wants to reduce the power of government by using the power of government. It is both ironic and dissonant at the same time.
It is not to say that we ignore the threat, you manage it as best as you can and then get on with life. But if you think you are going to change the hate speech laws then I think you are wrong, no matter what strategy you use. They are far too useful to the people in power. If you think such change is possible, I’ll ask you also — can you provide examples of where this strategy has been successful? Successful without people dying in the process? There may be some, but they are extremely rare.
There might come a time when it is worth refreshing the tree of liberty with the blood of patriots and tyrants. I don’t think that that day is today, but perhaps you disagree.
In the meantime perhaps you can slow the rot, perhaps by winning people to your side you can build a constituency whereby the powers that be might hesitate, slow down or delay their growth. However, for me anyway, if you demand that you are right and the other is wrong, you’d better be damn sure that you are not subject to accusations of hypocrisy. For there is little that hinders a moral crusade more than hypocrisy.
* and btw i still would like an answer about the discretionary power of the CPS.
Not sure if this is directed at me. I don’t know what you are referring to, and CPS could mean about a hundred different things.
Oh BTW, something I forgot to say a few times. Another way liberty comes back is through technological innovation. And I think that many denizens of these parts have the skills to advance that. The most obvious example is the massive explosion of free speech that came about with the internet (and the printing press before it.) “Ah”, you say, “but that is being regulated.” Of course it is. That is what governments do. Events allow an explosion of freedom, and then the government slowly claws it back.
However, other technologies that brought about freedom are: the car, the refrigerator, the airplane, the telephone, the radio, the condom, antibiotics, the steam engine, the university, firearms and the vacuum cleaner (in no particular order.) Want to make the world freer? Go invent something.
How peculiar that we, who eschew government action, should seek our ends through government action.
I think you’re too pessimistic. Laws and rulings that benefit the powers-that-be at the expense of the rest of us are toppling regularly. Just off the top of my head:
– The Kelo v. City of New London USSC decision – which allowed the elite to take private property to benefit their cronies, under the protective veneer of “public benefit” – is rapidly fading. More and more states are passing laws which specifically prohibit what Kelo allowed. Justice Palmer (Ct State Supreme Court) has recently admitted it was a mistake for him to uphold it when it was before that court. If it went back to the USSC for some reason, I doubt it would be upheld.
– Civil asset confiscation is also on the downturn. Many states are severely limiting the scope of this process, and expanding the ways a confiscee can fight it.
– The US EPA has been throttled to some extent. Without going into the details, the loss of several powers that it routinely used to trample on private property rights has made it into a sullen and disappointed place to work. That’s a good thing, considering the types of people who have made it their domain.
– Chevron deference is on the wane. (This may be the biggest in my quick list.) Under the Chevron case, federal courts were ordered to give deference to an administrative agency’s interpretation of its instructions from Congress. This led to several out-of-control agencies. (See EPA.) This deference has taken several big hits recently, and Justice Kavanaugh is firmly against this deference. This is a bigger deal than most people understand.
In short, we’re not altogether screwed. These are all things that primarily benefited those in power, and they’ve been weakened. I won’t say that this is all due to Trump – Trump is a symptom – but it is due to the same movement that gave us Trump. And, in many respects, it’s taking us the right way. You should be more optimistic than you’ve appeared recently.
I’m just a furrener, but let me try:
CPS prosecutions must satisfy a two-part test: a) Is there sufficient competent and admissible evidence to support a conviction? and b). is the prosecution in the public interest?
It’s the second stage that allows for huge discretion in what CPS does. Who gets to define “public interest? Currently, prosecuting righties seems to be in the public interest, while prosecuting lefties does not.
Go here for the government’s take on all of this. (Note that this explanation is given in the context of HSE enforcement, but it applies across all agencies.)
Likewise. Where I am at the moment is I am far more willing to get my hands ideologically dirty. Why? I just keep getting this 1642 vibe from so many things that I suppose psychologically I am on the cusp of that point where politics goes Clausewitzian. I am so fucking done with tolerating people who show no inclination to tolerate me.
Me too. But we are standing on the fulcrum of history, and which way it eventually tips will require a very different set of behaviours.
Fraser, above, asks,
I’ve been thinking about the repeal of Prohibition for quite awhile now, and Fraser thus sent me to the cyberstacks to see what I could find out about repeal was achieved.
I found no answer in terms of persuasion vs. coercion, but I think the history is pertinent as part of the background in our deliberations. Here, at any rate, is what the Great Foot says:
https://en.wikipedia.org/wiki/Repeal_of_Prohibition_in_the_United_States
Presumably this change to a most important part of the Evolving Constitution was in fact achieved without violence. (“Evolving” as opposed to “Living” Constitution, because the Amendments are considered to be legitimate parts of the Constitution but are not supposed to call into question the Constitution as-written-and-amended as the ultimate “law that governs those who govern us,” as Randy Barnett puts it.)
[Interestingly, it is taken as Holy Writ by all right-thinking libertarians everywhere that Prohibition is what enabled Organized Crime to become the behemoth of Entrenched Evil that it was and is — although the Families may have lost pride-of-place to MS-13 and the Russian and Vietnamese gangs. (Not to deny or disparage such others as may exist.) I certainly learned that as a newborn babe at 19 or 20. But apparently there is disagreement about this amongst scholars on the topic.]
. . .
Alinsky methods.
First: Freeze the target and demonize it.
Certainly the right does this, probably more out of basic human nature than as a consciously adopted tactic. I’m not sure how much good it does, but there are creatures among our opponents who deserve all the demonization they can get. The great monsters of the 20th Century, and even today in a few places, of course; but there are some in our own governments and their confrères who also deserve somewhere north of 80% demonization, and I’m being charitable.
Also: “Make the enemy live up to its own book of rules.”
That’s what this discussion is about, isn’t it. I don’t see anything wrong with that as a matter of principle. The issue is whether it’s more likely to help or to hurt.
At 6:21 above, bobby presented the fundamental problem perfectly:
Excellent point. You’d think the guy was skilled at various forms of “persuasion” or something. But sensible — certainly not a lawyer. Although I hear he builds a mean pergola. ;>))
. . .
At 6:55 pm, Snorri wrote:
Which is quite true.
[Except insofar as once in awhile somebody just noodling around in some general area comes up with an idea that turns out to be productive. (LOtR, for example. It may have been well-and-truly informed by reality, but I don’t think the Professor’s fantasy world came out of close scientific observation of Middle-Earth. There are other examples. Sometimes the process is called “intuition.”) But let’s not rely on intuition alone on the topic at hand.]
But Fraser responds to Snorri:
A valid observation, but I also have to ask how many excellent things have happened because somebody followed Snorri’s words?
A good deal of scientific and even social and political genuine progress has been made by people who accepted reality and took it into account.
.
And every man Jack of us has had to face a downright horrible (at least to himself) unacceptable fact of reality, and found himself unable to move past fear and loathing until he quit fighting the fact that the fact was a fact, truly accepting its existence into his mental-emotional map; thereby freeing himself to concentrate on finding a way to change the fact or work around it rather than remaining locked in rage and despair against its existence.
.
Here endeth Mom’s advice for the day.
Oh. CPS: Crown Prosecution Service.
https://en.wikipedia.org/wiki/Crown_Prosecution_Service
. . . .
Question. Is my long comment above too Tl;Dr? I didn’t submit it as three comments because I don’t want to hog the Recent Comments list.
. . .
Perry: Me too (back-&-forth). Right on. :>)
. . .
bobby, thanks for pointing out some good news. :>))
@Julie
“I wonder how many terrible things have happened following someone uttering those words?”
A valid observation, but I also have to ask how many excellent things have happened because somebody followed Snorri’s words?
A good deal of scientific and even social and political genuine progress has been made by people who accepted reality and took it into account.
I’d like to come back to the rest a little later, but I thought this was worth addressing. I certainly agree that taking a realistic view of the world is vital in every area of life. (It is one of the reasons I am not religious, FWIW, a promise of eternal paradise is very lovely sounding, except that it really doesn’t match reality.) However, I think the context was “see the world as it really is and consequently recognize that the means must justify the ends.” That is why I said that the most dangerous people in the world are those who are sure they are right and believe that the means justify the ends.
Snorri, I’m sure is the sort of person I’d enjoy having a pint with, so I don’t by any means intend to disparage him, he might be dangerous to some on the left (and good luck with that), but not by any means to me. But that is precisely what we are talking about — saying that the means does justify the ends, the ends about which we are so sure and certain we are right about.
The great mistake in this way of thinking is simply to understand that there isn’t actually an end at all. Once you get to one “end” you then have to get to the next “end”, and so on and so on. And if you operate that way all of life is about “means”, compromised “means”. So if you think that putting your ethics on hold until you get to the bright and glorious “end” is a good idea, then I would posit that your ethics are going to be on hold until you reach the pearly gates. And boy is St. Peter going to be pissed.
Having said that, as I have mentioned above, I have mixed feelings on the subject
Fraser, the Bad Guys say “the ends justify the means,” not “the means justify the ends” — unless you’re being ironically humorous. But I imagine that was just a slip of the fingers (and I read it in the usual way, not the way you actually wrote it), given your longer para, most of which I agree with. (Emotionally atheist, technically agnostic: “God” is to me a postulate fundamental to one’s way of seeing things.)
What you’re getting at is obviously true and correct; thanks. :>)
.
Mixed feelings: Yeah. And I HATE when that happens. :>(
@Julie, oh that I were being cleverly ironic. Nope, just dumb mistake.
Been there, done that. 😥 😎
“For those of you who favor Jo Brand being treated equally to the other guy, let me ask you this question: do you favor speed cameras? Speed cameras are utterly without bias and they apply the law in a completely fair (which is to say non biased) manner. Were speed cameras to be used and everyone who went one mile an hour over the speed limit prosecuted, then the pressure from the public would be either to change the speed limits to something more appropriate, or, more likely, demand that the speed cameras be trashed.”
Speed cameras ARE used right now, all over the place. Fixed ones, mobile ones, hand held ones. And whoever they catch gets done, even if they are MPs, as we have seen recently in Peterborough. And as such they are a bulwark against speeding restrictions being made more onerous, because even the great and the good will get done. Hence why the idea of a panopticon speed control system is less likely, because it would catch the rulers as well as the ruled.
Whereas a system entirely operated at the discretion of the officer would be a litany of ‘Don’t you know who I am’ to the policeman who’s just caught an MP (or his chief constable) speeding. Of course the Establishment would love a system that cracked down on the plebs but gave them a free pass, why on earth would they ever repeal that?
This is the libertarian fatal flaw (rather like the socialists really) they imagine the world is different to how it actually is. They imagine that the powerful can be entreated by earnest arguments, and made to voluntarily give up the privileged position they have, when in reality they can only be forced to change when their own personal circumstances are made worse by the very laws they’ve passed.
One was of illustrating a fundamental divide on approach to liberty is to ask whether the law is a ‘shield’ or a ‘sword’ for the individual.
In the United States, the Constitution is fundamentally a shield against the Sword of the State.
in the EU, the law is the Morning Star thumping you on the head as the Sword of State goes for your innards with its framework of ‘rights’ and prohibitions on vast areas of economic activity.
Thank you bobby for your reply. At a glance, it seems that there is reason to worry about politicization of the CPS.
Fraser: to be honest, i don’t see what your reply has to do with what i wrote. For instance, i don’t see how accepting reality is related to this:
Or are you saying that believing that you are absolutely right and that the ends justify the means, is what “accepting reality” means to you?
Taken at face value, the implication of your reply is that delusional insanity is the key to public safety — a view that i tend to associate with the US Democrats, and then only in this century.
Instead of addressing your comment, therefore, i’ll go wildly off-topic and provide yet another link debunking your contention that the invention of agriculture improved quality of life.
” if, for example, it is a crime for government emails to be held on private servers”
For the record, SOME of us ‘Murican folks aren’t too fond of private interests being run through
gub’mint “resources” either!
@Jim
Speed cameras ARE used right now, all over the place.
Yup and that is the point, right? Speed cameras are unbaised, but widely hated, which indicates that people apparently prefer the caprice of the policeman over the entirely equal application of the law. Many people in these parts hate speed cameras, but it is for this reason I am less offended by them. This might also be selection bias though, since they seem to be far more prevalent in the UK than in the US, especially the dreaded average speed cameras. My brother who lives in Glasgow, which is festooned with them, constantly complains about them.
FWIW, I can propose a suggestion as to why people prefer this. If the law is entirely unbiased in application, and since people recognize that they have absolutely no control over what the government does, this unbiased application renders them powerless. If it is capricious they feel that if they behave in the right manner — the classic pretty girl bats her eyelashes to get out of the speeding ticket — it makes them feel that they actually have some limited power. Which is to say if the law is not perfectly deterministic people feel they have some agency. Anyway, that is just my speculative view.
This is the libertarian fatal flaw (rather like the socialists really) they imagine the world is different to how it actually is. They imagine that the powerful can be entreated by earnest arguments, and made to voluntarily give up the privileged position they have,
I assume you are unfamiliar with the Libertarian arguments on gun control? There really are two entirely different arguments favoring a libertarian point of view — one is the “morality demands it”, the other is “governments suck at doing what we want so we should have as little as possible.” Since I recognize that “morality” is something about which we will never agree, I tend to prefer the second argument.
@bobby b
I think you’re too pessimistic.
Maybe. My views continue to develop on this, so this discussion has been helpful. But what I really see is two opposite trends — governments get more and more oppressive but the advance of civilizaton (and here I am thinking about the development of new technology and the refinement of our moral systems as we move up Maslow’s hierarchy of needs) is a countervailing force. Of course both trends are not smooth, there is a back and forth on both. In particular the government trend has a common pattern — overreach which is pushed back, but the still moving forward inexorably — three steps forward, two steps back.
Let me give you an example of this that Julie brought up. Prohibition. The 18th amendment banned the sale of alcohol. This is a massive restriction imposed by the government. However, it was evident they went too far, and so it was repealed (the 21st, if I remember right.) But…. despite that there were still massive amounts of regulation over the sale of alcohol. Three steps toward tyranny, two steps back.
And, as an interesting side note, as the federal government started to ban recreational drugs, really starting with Harry Anslinger in the 1930s, it seems that they decided to skip the whole constitutional amendment route. For sure they did it through “regulation” rather than banning, much as machine guns are perfectly legal in the USA, it is just that you can’t actually buy one. But it is illustrative of the growing chutzpah of the powers that be that a mechanism that they previously recognized the need for was largely skipped over. It used to be that people actually wondered where the constitution authorized a law. And bad though the 18th amendment was, its passing at least showed a respect for the rule of law and enumerated powers. Something that is a quaint idea now, I suppose.
The Kelo v. City of New London
To me this is a classic case of two steps forward, one step back. What the city of New London did here was an absolute outrage. However, shit like this happens all the time, it is just in this case someone had the balls to stand up and say NO. And of course, he lost in the process. Maybe things are changing for the better. I hope you are right.
Civil asset confiscation is also on the downturn.
Well it is good to know that this is getting a bit more under control. Again some of these cases are an absolute outrage.
The US EPA has been throttled to some extent.
I think this is a lot to do with Trump. He is definitely an outlier and not part of that same political elite, so I think he has acted in a way different than most politicians. So, as an outlier, I think his goals are different than the standard goals of “get re-elected” and “grow your department’s power and budget.” It is why they hate him so much. But he is a black sheep. We will be back to the same old, same old before too long. Again, Three steps forward toward tyranny, two steps back.
Chevron deference is on the wane.
Yes, I was actually aware of that side show in the Kavanaugh hearing. And again, I think this is a Trump thing. But FWIW, as I understand it the “conservative” branch of the USSC is not solid against Chevron. I hope you are right though.
In short, we’re not altogether screwed.
Not yet anyway. If we put aside the countervailing force of technology. But thanks, your comments made me feel a bit better.
As this thread is drawing to a close, I’ll make my first comment on it.
On the up-side, my grateful thanks to Perry’s generous appreciation of my post, and to all who felt likewise. I also thank all those – the ones who challenged my view as well as the ones who agreed with it – who commented on Natalie’s and Perry’s earlier posts. Without your thought-provoking remarks, I would have expressed it worse if at all. If it is a good post, praise intellectual diversity first, my writing skills second.
On the other side of the ledger, I find it revealing (and depressing) that, despite my quoting the 14th amendment at the very head of my post, those commenters who addressed that aspect immediately reverted to discussing it in terms of Alinsky’s rule 4.
I described Alinsky’s actual rule 4 here. The initial part of the Covington kids story – fake native activist gets in face of kids so he can convict them of incivility – was correctly recognised by some observers as straight out of Activism 101. The intention to apply the actual rule 4 – “Your kids broke your rules on civility; shame on you” – was at the heart of this Activism 101 exercise.
It is even more serious when those who would resist them write likewise. For sure, we need to know and talk about rule 4. But let’s know other and better things too, not just in memory but in those forefront concepts that shape our minds and speech.
Niall, the hour is late, but before everyone goes home I want to say that your posting on this important issue is excellent. Lots of worthwhile discussion, from varying points of view.
Thanks.
PS. I wish you wouldn’t dangle raw steak in front of my nose. I had to go back and re-read your comment on “Yes–But.” Another excellent posting and ensuing discussion. And I do like the way you explicated Rule 4.
The example of the Covington boys, given by Niall, made it clear to me that my understanding of Rule 4 is different from the original meaning. I should not have jumped to the defense of Alinsky, when what i had in mind instead was something more like an extension of Tit for Tat (T4T), which i phrased in Alinskyite terms in a previous thread.
It seems likely, however, that the other commenters who invoked Rule 4, also had in mind something more along the lines of T4T; or the Iron Rule, as i often call it.
— The difference between Rule 4 and T4T can be illustrated in the case of the Covington affair: the kids were not bothering the protesters, so the protesters, if following T4T, should have left the kids alone.
— The difference between T4T and the principle of equality before the Law, can be illustrated in the cases of Sargon and Jo Brand. Suppose, for the sake of argument, that equality before the Law demands that Sargon and Brand are either both visited by the police, or neither of them is. (In reality, it seems to me that only Jo Brand can be considered guilty of incitement.)
Niall supports equality before the Law, and therefore demands that Jo Brand be visited by the police because Sargon was visited by the police.
I, otoh, demand a visit by the police for a very different reason: because at least a visit is required by Jo Brand’s own standards for freedom of speech. If Jo had a proven record of defending the freedom of speech of “the other side”, i would not demand the application of the Law, in fact i would oppose it — while also pointing at the double standard, if the Law is not applied equally 🙂 but that would be a criticism of the CPS, not of Jo Brand.
Snorri Godhi (June 22, 2019 at 12:40 pm), I very much agree with your reason as natural justice: Brand approves the law under which she’d be questioned when it victimises her enemies, so it would also be natural justice for her. One naturally wishes law to be malum in se (in effect even when not in phrasing): correct in law and just in a moral sense.
Various considerations arise when a lefty
– has a record of approving the law in principle but urging not prosecuting in practice (it would not be hypocrisy in them to ask us for the mercy they have shown)
– is opposed to the law and says something against us that is illegal (if there were no double-standard) under it (we can note both the double-standard and the lack of natural justice if they were prosecuted)
and so on. As we have a hard enough time making the public domain aware of the most egregious double-standard hypocrite cases, it costs us little to make little fuss over others.
(As you say, the contrasted cases of Sargon and Dankula are in fact lesser AFAICS, but just for the purposes of the analysis I treated them as comparable.)
Niall: i am relieved that you do not hold a grudge for my implying that you take a harder line on Jo Brand than i do! 🙂
But, Niall, in our collective defense, y’all don’t HAVE a 14th Amendment.
Good post.
Of course the left does not want their own “Hate Speech laws” applied to them – these “laws” are WEAPONS that are invented by the MARXISTS (again I am not going to apologise for pointing that Marxists are Marxists) to use in their war to destroy civilisation – which they call “capitalism”. Idiot establishment types introduce these “laws” (following the doctrine of Thomas Hobbes and Jeremy Bentham that a “law” is just an act of POWER by the state and need have no connection whatever to the principles of natural justice and the Common Law) without asking their little heads WHO is pushing for these “laws” and WHY they are pushing for them.
And the establishment types then enforce these “laws” the way the university types (the Marxists) tell them to enforce them – in order to push the “equality agenda”. Threats of X, Y, Z, that are in line with the “equality agenda” are NOT to punished, but threats (really jokes) of X,Y, Z, that are AGAINST the “equality agenda” are to be punished. The whole thing is political – blatantly so.
The establishment (people such as Prime Minister Theresa May) are NOT Marxists – they are too stupid and ignorant to be Marxists (or to have any clear world view), but they might as well be Marxists as they do what the Marxists tell-them-to (without even knowing it). As Carl Benjamin “Sargon” was repeatedly pointed out (as many other people have also pointed out) – Mrs May and co have just followed the Frankfurt School “equality agenda” in terms of policies and even the CRIMINAL LAW. They are NOT Marxists – but they might as well be (as they are led by the nose by the Marxist university crowd – the Quangos and so on).
Would things change under a Prime Minister Boris Johnson? One hopes so – but we will have to wait and see.
Paul, you obviously share my “but don’t hold your breath for it” caution – wiser to expect little and be pleasantly surprised than to expect much and be reminded what we already know about the ‘virtues’ of government and politicians. Boris’ best point is his display from time to time of a dislike for hate speech culture and a willingness to push against its swift-moving bounds, so one may hope.
I am also in hope that (as has happened with Trump, I suspect), he has been and will be radicalised by how the PC treat him. We will see.
Yes Niall – yes.