Law, Liberty, and Responsibility – (if I were) King of (the) Forest

Should we be held accountable for following ambiguous laws?

May 3, 2023May 7, 2023 by Augustus Lowell

It has always been my contention that, if two different judges have come down on opposite sides of the question of what the law means and whether it applies to a particular defendant, then said defendant ought to be held at that point, by definition, not responsible for having followed the law. A disagreement among judges — our designated experts on the meaning of law — makes it inarguably obvious that the defendent had no clear way of knowing what the law actually required: if two judges, whose primary and formal function is to know what the law requires, can’t agree, then how is some random citizen supposed to know?

I would also extend that beyond judges to other actors within the legal system whose responsibility it is to know what the law says and requires. I would not include individual policemen in that, since they operate in the field without direct access to the law books (and typically without formal training on the content of law) and often on an emergency time-frame. But prosecutors — who are making their decisions with direct reference to the statute books and prior precedents, and with plenty of time in which to ponder the nuances — and executive branch regulators who have been given authority to enforce regulatory rules, rather than statutory ones — but with the same time for reflection and the same ability to examine the text of the regulation and any applicable precedents — have the same formal responsibilities as judges do: to know what the law requires so that they may apply it. As with judges, if different prosecutors and/or regulators can’t agree on what the law requires, then why is it reasonable to expect some random citizen to know?

Guns and Gun Control

February 16, 2023May 21, 2023 by Augustus Lowell

A few highlights: click through for the full discussion…

Bottom line: As both a moral and practical matter, people who understandably and legitimately want to minimize the damage that guns do to the innocent need to respect and accommodate the concerns of those who value their own equally understandable and legitimate right to bear arms; but those who value their right to bear arms need to take responsibility for minimizing the damage guns do to the innocent — and must, without doubt, accept some amount of constraint, and even sacrifice, to achieve that end.

And, yes, “gun culture” and its fetishization of guns — which is completely different than the right to bear arms — is pathological…

* * * * *

People who value free speech object vociferously and in absolutist terms to any suggestion that anyone have any authority to censor anything. Why? Because they fear – and justifiably so – that a large fraction of the people who say they want “reasonable” authority to censor things are not actually reasonable. They fear that talk of “reasonable” limits on speech is disingenuous and offered in bad faith. They fear that people who talk of “reasonable” limits on speech actually have much more extreme limits in mind, if they could only achieve them; and that their push for “reasonable” limits are intended merely as a starting salvo in a longer battle to ban speech outright (or, at least, to ban outright any speech they disagree with, which is effectively the same thing).

People who value access to abortion object vociferously and in absolutist terms to any suggestion that anyone have any authority to limit such access at any time and under any circumstances. Why? Because they fear – and justifiably so – that a large fraction of the people who say they want “reasonable” authority to place constraints on abortion are not actually reasonable. They fear that talk of “reasonable” constraints on abortion is disingenuous and offered in bad faith. They fear that people who talk of “reasonable” constraints on abortion actually have much more extreme limits in mind, if they could only achieve them; and that their push for “reasonable” limits are intended merely as a starting salvo in a longer battle to ban abortion outright.

And, yes. People who value access to guns object vociferously and in absolutist terms to any suggestion that anyone have any authority to limit such access at any time and under any circumstances. Why? Because they fear – and justifiably so – that a large fraction the people who say they want “reasonable” authority to place constraints on gun access are not actually reasonable. They fear that talk of “reasonable” constraints on guns is disingenuous and offered in bad faith. They fear that people who talk of “reasonable” constraints on guns actually have much more extreme limits in mind, if they could only achieve them; and that their push for “reasonable” limits are intended merely as a starting salvo in a longer battle to ban guns outright.

If you want to bring along the sensible, practical people who lament the current state of affairs and, yet, who value their right to have access to guns for self-protection and/or sport, you need to do more than “re-frame” the language and the argument. You need to convince them that you are both sincere and trustworthy.

You are asking them to rein in (or, at least, have the political courage to ignore, or even oppose) the most extreme voices in their coalition. In the same way, you need to convince them that you can effectively rein in (or, at least, have the political courage to ignore, or even oppose) the most extreme voices in your coalition. You need to convince them that the “reasonable” proposals you have in mind really are — truly — your ends, and not merely a means to initiate a march toward something more extreme.

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It has been a bedrock principle of liberal American justice that people are presumed to be innocent until proven guilty; and it has often been said (typically by those on the “left”) that it is better that ten murderers go free than that one innocent man be unjustly condemned and punished as a murderer. We are exquisitely sensitive to injustice and unfairness. It has, arguably, both instigated and consumed much of our political discourse in recent years.

If we want to pursue policies that try to predict who should not be trusted with exercising legitimate individual prerogatives (like owning guns – or, say, owning cars), we had best design such policies with multiple and nimble levels of appeal and review, with ample opportunities for error correction, and with the onus of the major effort resting on those who would curtail such prerogatives rather than on those who would retain them.

And we had best design them to minimize, as much as possible, false positives.

To be clear: we all need to acknowledge that it is unreasonable and implausible to expect we can define a system that generates no false positives at all. Gun rights enthusiasts just need to come to grips with that fact: any system that is effective enough to be useful in reducing the carnage is going to sweep a few innocents into its net.

But, the alternative is what we have now: far too many other innocents being swept into the net of gun mayhem. That is unacceptable.

Yes, there is a price to be paid for freedom. But, news flash for the gun crowd: not being shot in your classroom or at the supermarket or while playing on your front stoop is also a kind of freedom, and arguably more fundamental than a right to own a gun. We need to be willing to pay the price to protect that freedom, as well.

That said, people who want to enact various gun-related policies (and many other “progressive” policies) also need to acknowledge something: that restrictions on liberty, of any kind and no matter how “reasonable”, do, indeed, come with costs as well as benefits – yes, immediate human costs but, also, through legislative/legal precedent and an induced cultural complacency about such restrictions in principle, long-term systemic costs as well. The fact that the short-term, human costs are not ones that you, yourself, care about or will pay, or that the long-term systemic costs seem distant and abstract or are not ones you can imagine or lament, does not mean they don’t exist or are unimportant.

If you want cooperation from people who will bear those costs, you need at least to acknowledge them, and to acknowledge that building in safeguards to minimize those costs is a reasonable and beneficial part of any such policy. Insisting – as many on the “left” do – that concern about those costs is irrational or illegitimate – or, worse, is depraved and malevolent – is guaranteed to make cooperation impossible.

…

Being averse to research on “gun violence” is not irrational, for the reasons of trust cited above: the people calling for and performing such research are, in far too many cases, doing so in bad faith. Calling for research on “gun violence” is a nearly certain sign that the proposed “research” is not actually about science: it isn’t aimed at investigating and understanding root causes; and it isn’t aimed at testing a variety of hypotheses. Rather, it is aimed narrowly at proving a specific hypothesis: that “Guns cause violence (and should, therefore, be banned).”

That is poor science because it presumes the result it is purported to be researching.

More importantly, that is poor science because it is overtly political – it implies that the “research” is not as much intended to expand the boundaries of knowledge as it is to manufacture justifications for pasting a “scientific” patina onto a pre-determined policy preference. It is, all too often, advocacy disguised as science. It would be like proposing research narrowly focused on “Black criminality” or on “The cognitive bases for gender disparities”. There may be real-world observational evidence that those things exist — quite likely the result of historical circumstances, including historical injustices. But, we can and would probably safely assume that anyone proposing such narrowly-defined “research” had some agenda in mind beyond the simple advancement of human wisdom.

Yes, by all means, let us research the nature and sources of violence and what might be done about it. But, don’t limit our focus to one specific tool. Ask, rather: what is it about our culture (including, but not limited to, “gun culture”) that breeds such solipsism and lack of empathy? Ask, rather: what is it about our culture that fails to discourage people from acting out that solipsism, from inflicting it on others? Ask, rather: what is it about our culture that so consistently fails to instill in its citizenry a respect for other people and a reverence for the Golden Rule? And what can we do about that?

…

I would venture that the “framing” I identified – that people who want to be able to use guns thereby assume a responsibility for ensuring that all gun use is responsible gun use – may be the key to engaging with those who value access to guns. Because, if we can turn the conversation from “rights” to “responsibilities” – if we can turn the conversation from “how we plan to impose our coercion upon you” to “how we expect you to step up and do the right thing” – the rest of the conversation will be immeasurably easier.

Perhaps, if we can find a way to turn our conversation about guns toward the duties of responsibility, rather than making it an argument about rights and regulation, we can not only make progress on guns but, then, extend that approach to politics and governance beyond guns into all the other subjects that currently divide us.

…

It occurs to me that perhaps the most effective policy for controlling gun violence would actually be to require any gun that can accept an external ammunition clip — which is a reasonably good proxy for its potential high-volume/long-term rate of fire — to be colored hot pink and fitted with a grip shaped like a phallus.

It would have no effect on the gun’s performance or its availability. But, slinging a giant pink penis over your shoulder or strapping a giant pink penis to your hip to carry it around, or wrapping your hand around a giant pink penis in order to aim and shoot, would simply not look macho or cool. It would not be photogenic. It would not project an automatic aura of menace and authority. It would, to the contrary, be rather emasculating. It would indeed, make you look silly.

That would somewhat clarify exactly why it is that people think they need such firepower — it would tend to separate those who have some genuine need for a tool with that kind of performance from those whose primary need is actually for a brace to prop up their sagging self-esteem.

From the Archive: Road Etiquette

September 26, 2022October 9, 2022 by Augustus Lowell

From the letters I’ve read, it seems those on the side of slowing down, including Mr. Roadshow himself, have done a good job of stating the case and describing what we speed-freaks should not be doing; I would like to propose a few rules of thumb for the slowpokes, from the other perspective:

- If there are cars lined up behind you and open road in front of you, it’s a good bet that you are impeding the flow of traffic, so let them go by.
- If you are in the passing lane and the lane to your right is empty, you are in the wrong place.
- If you are in the passing lane and going the same speed as the car to your right, you have created a rolling roadblock; either pull ahead or fall behind, but move over.
- Many of our freeways have three or more lanes, and people are in the habit of cruising along in the middle, leaving a lane to pass on the left and avoiding the entering and exiting traffic on the right. That is fine — but, during carpool hours, the left lane is off-limits to most drivers, and the center lane is the de-facto passing lane; please treat it as such!

Why is “the right” so hostile to “climate change”?

July 10, 2022December 26, 2022 by Augustus Lowell

The American “right” latched onto an “anti-climate change” attitude — and took that to the ridiculous extreme of being proof-of-membership-in-the-group — in large measure as a direct response to the early (and, alas, continuing) attitudes of the American “left” toward the subject.

From the earliest discussions of the potential for climate change and what we might do about it, the left succeeded in tying “climate change” nearly inextricably to “highly coercive and disruptive government mandated emergency command-and-control remedies”.

In that environment, there was simply no way to be both ‘conservative’ and accepted as someone who took climate change seriously. You were either wildly progressive or you were a “denier”. As far as the green left and the media that echoed its talking points was concerned, there was nothing, and no room for anything, in between.

To the extent that the “left” succeeded in transforming “climate change” from a legitimate scientific and policy debate into merely another excuse for getting what it had always wanted anyway and for other reasons — a self-righteous justification for telling us all how to live our lives coupled to yet more coercive authority concentrated in the hands of politicians and government bureaucrats (to be guided, of course, by academic intellectuals) — it did mean that the opposition from the “right” to “climate change” was much more about opposing that coercive policy agenda than it was about the science, itself.

Musings on Abortion

May 7, 2022August 30, 2022 by Augustus Lowell

Apropos of the big news of this week — the leak of what is presumed to be the Supreme Court’s position (if only in draft form) that it will overturn Roe vs. Wade and return the issue of abortion to the state legislatures — here are some excerpts from the chapter on Abortion in my book, American Conservative — Reclaiming Conservatism From the Right (2016).

A snippet from the conclusion:

An embryo or fetus with the higher cerebral functions not yet engaged – pre-sentient and without the consciousness from which may eventually emerge self-awareness and free will – has the potential to become human not the quintessence of humanity. In my areligious worldview, with no faith in some revealed and ancient catechism to instruct me on whether or not a soul exists independent of corporeal sentience and on when such a soul might manifest, I cannot justify surrendering to government unfettered authority over a palpable liberty that already exists in the defense of some ineffable essence that may yet come to be.

And yet, I must agree with the religious conservatives – not out of any theological insight but out of a humanist and libertarian respect for human dignity – that such potential for ineffable essence has value. And, therefore, I equally cannot countenance the view that discarding such potential is an act utterly without moral import. Nor can I countenance the view, extreme but seemingly common on the far “left” and particularly among the feminist fringe, that such ineffable essence somehow suddenly and miraculously materializes at the emergence from the birth canal and not an instant before.

It seems clear, to me at least, that at some point, after the cerebral cortex begins functioning and prior to full-term birth, the potential of a human fetus transforms into the quintessence of a human baby. It seems equally clear that by exercising one choice – to carry a pregnancy to that point of quintessence – a woman, herself, circumscribes other choices including, in particular, the choice to have an abortion thereafter.

Risk, Part 2: Fear and Control

July 20, 2020July 18, 2021 by Augustus Lowell

Part 2 of a 2-part sequence on different aspects of how American society deals with risk:

…

It seems that government policy – and social convention, and cultural aspiration, and the tyranny of public opinion expressed through social media mobs – is now all too often fashioned by a destructively self-reinforcing partnership between those, on the one hand, who have lost all trust in their fellow citizens and who want so badly to be protected from risk, and even from discomfort, that they will trade away almost any freedom for a promise of a bit more security; and those, on the other hand, whose innate and fervent proclivity is to tell everyone else, with great piety and self-assurance, how to organize and operate their lives.

…

The more we have come to – and the more we have been taught to – rely on government to regulate the behavior of others, the less we have come to rely on – and the less we have been taught or practiced – the virtue of regulating ourselves. The more success the solipsistic fringe – economic more than cultural on the “right”, cultural more than economic on the “left” – has had in attacking and emasculating the economic and religious and social and cultural mores that historically disciplined such self-control, the less able we are to count on self-regulation and the more pressure there is to empower government to impose yet more external regulation upon us.

…

We can no longer negotiate and compromise – we can no longer embrace a shared process for governance rather than seeking a raw power over others – because we no longer trust each other either to have empathy or, more importantly, to act in good faith. Why are we intolerant of risk? Because we feel a lack of control. Why do we feel a lack of control? Because we don’t trust each other to do the right thing, either as individuals or as a polity. In the absence of trust, even small risks loom large.

…

Risk, Part 1: Trade-Offs and Value Judgements

May 27, 2020May 14, 2022 by Augustus Lowell

Part 1 of a 2-part sequence on different aspects of how American society deals with risk:

…we all intuitively understand, even if we can neither articulate nor rationalize the precise placement of the implied ethical boundaries – or are loath to admit to them – that the trade-offs in risky human activity between the potential for loss of human life and the potential for benefit, economic or otherwise, are not as stark and as obvious as the simple and common mantra –that saving human life is always worth any cost – implies.

To be blunt: there is, indeed, some upper bound on how much cost, either in economic benefit or in liberty, represents a fair trade for a statistical human life. And we all personally adjudge where that bound lies, implicitly if not explicitly, many times per day, every day, as a matter of routine. We all take risks and impose risks on others because we think we will reap some economic or physical or emotional or social or moral or spiritual reward from doing so…

There is a legitimate, important, and ongoing debate that we may and should have over where, on the continuum of behavior, the margin lies between prudent risk-taking and reckless disregard. But we must acknowledge that there is a continuum, not a simple border: not all risks are reckless ones and there are costs sufficiently dire, and benefits sufficiently valuable, that they may, indeed, justify the risk of precipitating some generalized and arbitrarily-distributed human suffering in order to forestall or foster them.

…

For those who have taken the position that no relaxation of the lockdowns should be even contemplated while any significant risk remains, that means accepting and acknowledging that zero risk is an unrealistic and unachievable standard. It means acknowledging that reducing risk for some causes real and consequential harm to others and that, at some point, the harm of incremental gains in risk reduction exceeds the incremental harm of the virus, itself. We can’t live in lockdown forever; and, in the absence of an effective vaccine or a cure, widely deployed to create widespread immunity, the lockdown will, indeed, stretch on forever because there will never be a time when releasing it will seem propitious and wholly safe.

For those who have been advocating for a quick and complete re-opening – and especially for those actively protesting the imposition of various modest public safety measures like the wearing of masks – that means accepting that we all have responsibilities commensurate with the rights we so self-righteously defend. What we do affects the community. Yes, we have the personal right to accept a risk of catching the virus in pursuit of some other reward. But, assuming risks for yourself – by exposing yourself to disease carriers – and imposing risks on others – by carrying the disease to them despite their own best precautions – are two very different acts and should fairly be judged by different criteria, the latter more stringent than the former. Whether you like it or not, in a world of pandemic you have a moral responsibility to protect others against the possibility of your own contagion. If you cannot willingly and diligently assume that responsibility, then your moral claim to a “right” to be free of restraint is little more than a hollow defense of self-indulgence.

And for all of us, that means taking each other’s concerns seriously, with empathy rather than with contempt. The pain people are expressing is real, not imagined. What you find comforting, others may find distressing. What you find to be reasonable precaution others may experience as destructive overreaction. Neither side may or should presume they hold a monopoly on truth or on wisdom. We are, indeed, in this together because this is a contagion. But that doesn’t mean we all experience that contagion in the same way or bear its burdens in the same forms or to the same degree. The fact that someone disagrees with your value judgements about those burdens means they and their circumstance are different than you and yours. It doesn’t mean they are right. But, it also doesn’t mean they are wrong.

Executive Agencies Independent of the Executive

March 8, 2020October 19, 2022 by Augustus Lowell

Here’s a proposal: If you want agencies that set policy and priority to be independent of the Executive, don’t make them part of the executive branch!

The issue with such agencies is really that their missions are split: they are as much legislative as they are executive. Congress, in its wisdom (or recklessness) has delegated some large measure of its legislative authority, the authority to create the rules by which we live, to such agencies; but they have also tasked those same agencies with enforcing the rules that they, themselves, concoct.

Does that not violate the spirit, if not the actual text, of the Constitutional separation of powers?