The "Strange Doctrines" Undercroft

Dubya's Habit Dies Hard

Richard Pryor once described how bad his drug habit had gotten, relating that he was so f***ed up on heroin that his dealer cut him off: "Rich, I can't let you do this to yourself, man."

It appears that President Bush's totalitarian habit is facing similar resistance from his own dealers.

Sometimes you just need help.

Lawyer Gives Bad Oral

For the worst oral argument ever, listen to this. It is surreal.

(Via Orin Kerr.)

More on Religious Reasons in Lawmaking

I want to tackle a couple of arguments in re my post here (in which I responded to Eugene Volokh's post here).

The first argument goes something like this. It doesn't matter what normative authority is entailed by religious reasons in principle, since in practice many religious persons are no more or less resistant to revising their beliefs than are nonreligious persons.

Note the "many." The fact that in many cases and on many issues religious persons and nonreligious are equally self-righteous and pigheaded says nothing about whether religious reasons that are taken to derive from the Word of God tend to engender a greater degree of belief perseverance. I think they do.

But even if they don't, invoking religious reasons in the context of legislative debate does more than simply aim at changing opponents' minds. It also:

• enables a candidate to differentiate him- or herself to voters as the "religious" candidate, as opposed to his "Godless" opponent;
• brands one position as the "religious" position, as opposed to the "Godless" alternative; and therefore
• pressures those whose quasi-constitutional scruples would otherwise lead them to abjure religious arguments in congressional fora to adduce competing theological arguments to keep up in the religious rhetoric race ("No, God does not command that not-p: see Exodus 21:22-23, et seq."), or else run the risk of being thought the "Godless" candidate (or of the "Godless" party).

This sort of thing isn't exactly healthy for robust separation, and seems to rub pretty hard against the policy underlying the "no religious test" ban. So even if you happen to believe (I think counterfactually) that religious reasons are just as corrigible as nonreligious reasons, there are independent grounds still to discriminate against the use of religious reasons in the legislative context.

The second argument is to suggest that to discriminate against religious reasons in this way is to deny religious persons full membership in civil society.

First of all, discrimination against the use of religious reasons in the legislative context is far less invidious than the discrimination such use is bound to elicit elsewhere. (See above.)

Second, similar norms are observed in many other contexts. For instance, professional mathematicians do not appeal to religious claims in disputes about mathematics. Yet no one would argue (I hope) that this discrimination denies Christian mathematicians "full membership" in the mathematics community. Mathematicians simply recognize that claiming Biblical authority for Peano's axioms (or whatever) doesn't advance the argument. Legislators could take the hint.

Religious Reasons and Public Policy

Geof Stone and Eugene Volokh debate the legitimacy of religious reasons in lawmaking, at the Huffington Post.

Volokh states:

[I]t shouldn't matter whether someone supports [laws banning -- or allowing -- abortion, infanticide, the destruction of embryos or chimpanzees for medical purposes, or the killing of members of endangered species might be sound or unsound] because of his belief that laws should turn on the greatest good for the greatest number, his belief that we are all sons and daughters of Gaea and must thus protect our environment, or his belief in the Bible. For most, quite possibly all, of us, our moral beliefs ultimately rest on unproven and unprovable moral axioms.

Yes, but not all of our moral beliefs rest on unproven and unprovable moral axioms that are claimed to emanate from an infallible, totalizing authority, as religious reasons do.

Whereas nonreligious reasons find their ground solely in fallible human conscience.

That difference is what makes religious reasons peculiarly inimical to a pluralist democracy.

Raw Deal

By now you will know that Senate Republicans and Democrats have averted nuclear winter by coming up with a treaty that forswears what the Republicans dubbed the "nuclear option" in consideration of the Democrats' promise to limit use of the filibuster to "extraordinary circumstances."

Charles Peirce of American Prospect helpfully explains what "extraordinary circumstances" might actually mean. Cute.

Full of Grace

Watching Nancy Grace on CNN (or anywhere else), you might get the impression that she's never met an accused she didn't *know* was guilty.

The 11th Circuit seems to agree.

"Disparate Impact" on Judicial Nominees

Steven Bainbridge and Juan non-Volokh endorse the idea that the Democrat political and ideological hostility toward avowedly pro-life nominees to the judiciary may indeed amount to religious bigotry due to the "disparate impact" it has on Catholic nominees.

I'm really having trouble seeing where these gentlemen are coming from, both for the sound reasons Mark Kleiman's elucidates and for a couple of what I see as legally more straightforward reasons. First, categories like "Evangelical," "Catholic" and even "religious" are not "suspect clauses," and so wouldn't be subject to disparate impact analysis. Nor should they be: ideologies--whether religious or political--are not the sort of "immutable characteristic" that would make apt Bainbridge's analogy to discrimination on the basis of race.

Second, it's well established under the Supreme Court's Free Exercise clause jurisprudence that facially neutral laws that have a disparate impact on religious groups are nonetheless constitutional. So, for example, anti-pot legislation may have a disparate impact on Rastafarians, and yet such won't suffice to invalidate the legislation. It's strange in a case allegedly involving a conspicuous infringement of religious liberties that Bainbridge wouldn't think to make this analogy instead.

Civil Procedure Can be Such a Kopvaitik

Funny.

Is Schiavo a Victim of Disability Prejudice?

This Slate brief by Harriet McBryde Johnson is one of the more eloquent, thoughtful entreaties on behalf of keeping Terri Schiavo plugged in. She scores points with this remark:

The whole society has a stake in making sure state courts are not tainted by prejudices, myths, and unfounded fears—like the unthinking horror in mainstream society that transforms feeding tubes into fetish objects, emblematic of broader, deeper fears of disability that sometimes slide from fear to disgust and from disgust to hatred. While we should not assume that disability prejudice tainted the Florida courts, we cannot reasonably assume that it did not.

What's right about this statement is that it defines what no doubt is an authentic problem.

What's wrong about this statement is that it define a problem that isn't in issue: no one is assuming anything about the Schiavo case. This case has received more scrutiny than any of its kind. The result? Not a shred of credible evidence of disability prejudice.

If activists like Johnson wanted a cause celebre, they ought to have chosen a better case--preferably one in which the claims of disability prejudice were at least colorable, and in which hope for recovery weren't based solely on the fantasies of the bereaved.

Why We Should Hunt Nazis

By now you know that Eugene Volokh was persuaded by Mark Kleiman's argument (based on Brad DeLong's institutional observations here) that a just regime of intentionally painful execution is a political impossibility. (Volokh maintains that it is nonetheless a theoretical possibility.)

But a new issue arises, viz., whether retribution is a legitimate goal of justice. Both Kleiman and Volokh are in agreement that it is.

Kleiman lays down the gauntlet for nonretributivists like Yours Truly:

[V]indication of the victim and the expression of social disapproval of the act both strike me as perfectly sound reasons for punishment, independent of its function in controlling crime.

[I]f you disagree, then, when you're through explaining why you favor hate-crime laws, could you explain to me why we kept chasing Nazi war criminals well into the 1990s? Was the Third Reich likely to come back? Were we hoping to deter the next round of mass murderers?

Perhaps vindication is a sound reason for punishment, but I don't see why biting the nonretributivist bullet would require that we abandon hate-crime legislation or Nazi hunting. Consider our response to hate-crimes. We reckon that a person who batters a Jewish person because the person is Jewish is acting for particularly ignoble motives, so we enhance the punishment accordingly.

The standard deterrence justification for this enhancement applies: we specifically deter the criminals punished from engaging in the behavior (namely, by incarcerating them), and generally deter others from the same by lowering its expected benefits.

The additional justification that Kleiman points to is that by enhancing the sentence the community is announcing its sense that such behavior is unacceptable. Kleiman sees this reason as distinct from any deterrence goals accomplished by the enhancement. But I don't. I see it as a distinctive way of accomplishing deterrence: it advertises social norms and creates the expectation that they will be enforced with social pressure.¹

This multidimensional way of looking at deterrence also goes toward explaining why we might pursue evildoers whom (like the Nazi war criminals) time has rendered feckless. Here, it seems to me, we are sending a message that no one who commits crime can hope to evade the consequences of their actions, no matter how much time passes.² The deterrence value in that kind of conspicuous disapprobation seems clear.

In sum, then, I think deterrence is sufficient at least to justify and commend punishment in what Kleiman seems to think are its leading problem cases.

Still, Kleiman's vindication point may make biting the nonretributivist bullet a bit uncomfortable:

[Another] idea that goes by the name of "retribution" is that the punishment of the offender is in the interest of the victim, the victim's family and friends, and those who share characteristics with the victim. If you regard the satisfaction of someone's preferences as being in that person's interest, then this version of the retributive idea -- call it "vindication," as opposed to "just deserts" -- is obviously true. Most, though not all, victims and their intimates want the perpetrator punished, and punished severely. How much weight the satisfaction of that preference deserves in policy-making is a different question, but that vindictive punishment benefits the victim in this limited sense it would be hard to deny.

But vindication also serves the victim's interest in a more material sense: being the victim of a crime is a blow to self-esteem and a source of the loss of social standing, and the punishment of the perpetrator helps reverse those losses, with more severe punishment being more effective in that regard.

In other words, as a descriptive matter, it seems highly unrealistic to claim that in designing our penalogical scheme we completely discount the resentment of victims or of society at large. And as a normative matter, is it really clear that we should?

My thinking on this is embryonic, but let me outline three possible lines of response. First, one could maintain that retribution is an illegitimate penalogical goal, but still contend that the wanton generation of private and public resentment is itself a part of the wrong of the crime. If so, then that component of the wrongdoing should be reflected in (and prospectively deterred by) the punishment.

Second (and perhaps more plausibly), one could say that to the extent that the criminal justice system takes account of resentment, it should do so in order to foster the goal of rehabilitation (a goal that has been tellingly absent from the current discussion). The idea here is that part of the reason for "bringing the criminal to justice" is to particularize in the criminal's mind the personal suffering of those he's wronged. In many cases, he will be brought face to face with the victim(s), and at sentencing will have to sit as the victims tell their personal stories in their own voices. So a necessary part of this process is to give voice to private and public resentment. This kind of catharsis would provide the sense of vindication retributivists are looking for.

Third, we might appeal to a distinction between what I'll call first- and second-order justifications for imposing a particular sentence. Nonretributivist policymakers would be committed to the view that resentment is an illicit justification for punishment. But they also realize that resentment in response to criminal wrongdoing is a brute psychological fact--the kind of fact that good policymaking requires taking into account. Thus, such policymakers might opt to channel resentment through public trial and lengthy incarceration. On this view, incarceration isn't an expression of the duty owed to the victims in light of their (presumably justified, or at least understandable) resentment so much as it is a pragmatic accommodation of (or an accession to) their psychologically ineliminable resentment.

That all being said, I'm not at all sure that these lines of response are adequate to counter the powerful intuitions that justice should be fair, and that fairness seems to demand that justice explicitly address the felt wrongs of society as such. (E.g., I'm afraid that the third line of response above is utterly disingenuous: we want justice to be fair, and we want the public to view their justice system as genuinely fair, yet we're only doing what the public thinks is fair in this case as a therapeutic or public relations measure.) To be continued, then...

UPDATE: In the above I made an inchoate distinction between first- and second-order justifications. Let me try to state things more concretely. The reason we mete out "expressive punishment" (as I'll call it) isn't that victims deserve to have expressive punishment meted out on their behalf. Rather, it's that that's the only way we can assuage popular resentment and rehabilitate the victim.

If that's right, then what does the justifying work in this scheme of expressive punishment isn't the retributive idea itself, but some independent restorative or restitutional principle.

NOTES

¹ Absent that purpose, it seems to me, "community expression" is just an inert symbol, and completely inadequate to motivate imposing added pain on a criminal.

² There are other possible justifications in the particular case of the Nazis. For example, perhaps the history surrounding the Nazi war crimes is so important that we should expend extra effort to capture as many participants as we can so that the full story can be known.