Ink Tea Stone Leaf

One of the worst habits of intellectual ages gone by is the tendency to make sweeping generalizations about the nature or character of entire cultures, societies, nations, or other abstract assemblages of of people. I say “ages gone by,” but I really ought to admit that this is a bad habit of all ages, and perhaps an inherent character defect of the entire human race. That would be the most pessimistic take on the matter. I’m probably even doing it right now.

I am, unfortunately, inclined to be a little pessimistic because my hopes and aspirations for the future rest on the premise that human societies, as a whole, are capable of improving, or at least developing, in their ethical and moral foundations. Given the diversity of ethical standards and values that exist and have existed in the world, my intuition is that this must be true, at least on some level and in some sense. Ethics must develop over time, and in practical terms for better or worse for the people involved. But as for improvement, my fear is that there is a ceiling, above which the collective morality of a people cannot rise. If that ceiling is beneath what is required for my hopes to come true, then I don’t know what there is to hope for.

My opposition to the death penalty is an example of how I personally believe ethical standards can develop for the better, as most nations in the world have abolished or limited the practice. I think it is unethical for the State to take a human life, but I also am not quite arrogant enough to believe that this is the only ethical conclusion. It seems perfectly reasonable to me that a person might argue, given that a person has been proven to have committed certain crimes, that the most appropriate response by the State is execution. I would be deeply skeptical of that conclusion, but the fact that somebody has arrived at it doesn’t strike me as evidence that they are necessarily ethically deficient; it only shows that we haven’t thought about the issue in the same way. If we were to explore the issue together with open minds, one of us might very well change our mind.

The thing is, I see the death penalty as being somewhat of a larger issue than the sentencing of convicted criminals by a court of law. I see it through the larger frame of the authority of the State, or any representative of the State, to take any life at all for any reason. This is a tremendously complicated issue, with questions that probe into the fundamental legitimacy of the State. These questions are not just about legal procedure in the rooms of a courthouse, but about the standard procedures of law enforcement, or the practice of making war on other States and their people. It has been observed that the State claims a monopoly on the legitimate use of violence, through which it enforces laws and advances its social and economic interests. If that does not immediately impeach the legitimacy of the State (the anarchist position), it must at the very least require us, the citizens of an ostensibly free republic, to think deeply about how the State must be constrained in its use of violence. We should want the State to distinguish between acceptable uses of its own power, such as compelling a wrongdoer to make compensation for their actions, and unacceptable uses, such as terrorizing and oppressing disfavored minorities. Furthermore, we should want there to be means to constrain the State from unacceptable uses of its monopoly on violence, as well as means to discipline and correct the government when those constraints fail. If “we” don’t want these things, it is difficult for me to see how “we” are serious about being citizens of a free republic, or a democratic society of any kind.

This brings me to the Trump Administration (again) and its practice of blowing up Venezuelan boats which it claims to be full of drugs en route to our shores, without offering any independently verifiable evidence, or evidence of any kind. The Administration’s position on this issue is clear: when Vice President Vance was asked about whether or not this was illegal, or even a war crime, he said he did not “give a shit.”

If you want to get at the heart of what I don’t like about these people, I’ll just say that it seems to me that the people directing and representing our government ought to give a shit about whether or not what they are doing is illegal. If they do break the law, I want them to at least have a concrete and convincing rationale about why the necessity of those actions outweighed the necessity of following the laws that it is their job to enforce. That is a high standard to meet, but it is the least we are owed.

Of course, there are people who support the Administration in its efforts to kill people without producing any evidence that they ought to have been killed. I’m afraid this is mostly a function of tribalism, people reflexively supporting whatever their beloved leader is doing, especially if what he is doing antagonizes the people they perceive as their leader’s enemies. But even if they were all brainless dolts thoughtlessly endorsing an ethical stance without considering its implications, they are still endorsing that ethical stance. I believe that makes them responsible for the justifications of that stance, or the lack thereof.

When I say “responsible,” I do not necessarily mean they are equally culpable for the crimes that the President commits. I mean that if they endorse a crime which it is his administration’s position that he can commit with impunity, they are necessarily endorsing the principle of impunity. They should not be given the opportunity to evade acknowledging that endorsement, or its implication for other ways a government might abuse its impunity.

Blackstone’s Ratio, whatever the specific number employed in describing it, is a legal principle that in part underlies what is known as the presumption of innocence: that in a criminal prosecution, it is the State’s job to prove that a person has committed a crime, and not the defense’s job to prove they have not. William Blackstone, the influential British judge, stated that the law preferred that ten guilty men should escape punishment rather than one innocent man should be punished for something he did not do. Benjamin Franklin put the ratio at a hundred to one; I think the exact proportions of unpunished guilt to violated innocence are less important than the general idea that if the government is going to make a mistake (and it will certainly make mistakes), it is far better to err on the side of the presumption of innocence. This should be intuitively obvious to any person concerned with their own best interest. If the perpetrator of a crime against you were acquitted because the State couldn’t prove its case, you would be frustrated. If you were convicted of a crime because the State merely asserted that you were guilty and you failed to prove otherwise, you could be a lot worse off than frustrated.

The United States does not have a great historical record when it comes to the fair and impartial administration of justice. Nevertheless, it is the case that there are several mechanisms of our justice system that exist for the purpose of supporting the presumption of innocence. The Constitution prohibits the State from compelling defendants to testify against themselves, because it is the State’s job to prove its own case. Convictions may be overturned if the State is found to have concealed evidence that undermined its case, or manufactured false evidence to support it. Juries are composed of ordinary people, not government employees who would have a perverse incentive to affirm every accusation; the prosecution must convince them of the truth of its charges, and accept their determination if it fails to do so. The system fails when juries are too prejudiced against defendants or deferential to the prosecution, but these features exist for a noble purpose that is to every person’s benefit.

It has been my experience that many people do not accept the wisdom of Blackstone’s Ratio, and in fact believe it should be inverted: it would be better to punish any number of innocent people than to allow any guilty person to get away with a crime. In fact, such people are much more acutely troubled with the thought of anybody getting away with anything at all than they are that anybody were unjustly denied whatever was their right. If a person has been identified by the State as the culprit of any misdeed, it is imperative that that person must not get away with it. To extend this framing, it is better that the State offer no assistance to hungry or sick people than that even 1% of its resources should be wasted on those less “deserving.” It is not fair, they say, for somebody to receive anything except exactly what they deserve; behind this assertion lie the assumptions that “exactly what they deserve” is something that can always be known, that it is in fact always obvious and apparent, that they could never be mistaken or inconsistent about who deserves what, and that their reckoning of what is deserved is not based on a strict standard for others and a generous one for themselves.

The impulse to resort to deadly force on short notice and without a fair and open review of the available facts is not a uniquely American phenomenon, but it is epitomized by a peculiarly American form: the lynch mob, as associated with the Ku Klux Klan, who would gather entire towns and cities together and whip them into a frenzy over the perceived necessity of seizing a Black person suspected of some misdeed and murdering them immediately, lest they be allowed a day in a regular court where they might somehow receive an acquittal. Sometimes the perceived misdeed was not even a crime at all, and the lynching merely an attempt to disrupt and destroy the lives and prosperity of Black communities for no reason except resentment and jealousy. But the classic form of lynching, as seen from Reconstruction through the Civil Rights era, was a targeted attack against individual Black men and boys for allegedly assaulting, or otherwise disrespecting, white women and girls. The blood-thirst that animated these mobs was therefore deeply rooted in sexual paranoia, and totally beyond rationality.

It would be simplistic and wrong to lament the culture of lynching in the United States solely because so many of its victims are actually innocent of whatever the mob believes they have done. The moral rot in the hearts of the lynch mob is that its members believe, as they testify through their actions, that they have the right to assert “facts” which are not permitted be effectively disputed, judge the severity of those assertions by whatever arbitrary standard they care to use, and act on the basis of those judgments to end a person’s life whether their charges are actually true or not. Their lynchings are carried out with reckless disregard for the truth of facts because their true purpose is to enforce the racial hierarchy, and the blood of those they deem inferior is an acceptable price, not for their guilt or innocence but in the end simply for being near at hand.

My disgust with lynching or other forms of irregular “justice” does not come from a belief that it is the role of the courts to persecute minorities on our behalf; I oppose them because I oppose persecution, and while courts may occasionally be the instruments of persecution, lynch mobs are nothing except instruments of persecution. Nevertheless, the people who have never accepted the presumption of innocence as a truly universal principle have shown themselves in the present day to be amenable to granting the State its monopoly on the legitimate use of violence only when the State itself behaves like a lynch mob would.

Does it ever cross the hive mind of the lynch mob that, if an innocent person has been punished for a crime that has truly taken place (and is not merely a pretext for simple murder), the actual guilty party must have escaped, and therefore gotten away with it? I couldn’t say how often it does, but it does seem that there are three practical answers to that quandary:

1. The person who was punished must have been guilty because they were punished (which is illogical).
2. It was just to punish them despite their innocence because they were guilty of something else (which is arbitrary).
3. It is necessary to punish somebody in every case, and more important to create satisfying narratives of guilt than it is to be certain that those narratives are true (which is incoherent, and also terrifying).

It is unnecessary to pick one of the three; people can freely adopt whatever is rhetorically convenient. To the President’s defenders, if the Trump Administration is exploding Venezuelan boats then the boats must be loaded with drugs, because why else would they need to be exploded? If they are not loaded with drugs, then they must be exploded anyway because the people on board must have been up to something equally dastardly (like immigrating); in either case, it is alright for the administration to say that it was because of drugs, because “fighting the war on drugs” is a better narrative than “shooting fish in a barrel.” What matters is that they have been told that the State has struck a glorious blow on their behalf; it does not matter whether the State can justify its choices with anything more concrete than the fact that the boats were Venezuelan. By ignoring the question of facts, they can feel like winners too, without having to go to the trouble of putting on any hoods.

In this political climate, the demand for “law and order” in the guise of arbitrary government power is called “conservatism.” I’m not sure that’s the best name for it, but I’m not in charge of naming things. There is a popular aphorism about contemporary conservatism’s priorities, which I think illustrates why conservatives are so comfortable with the arbitrary exercise of lethal force against some people with no apparent concern that the same government might target them next (unless the government should happen to be momentarily controlled by their opponents):

“Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.”

This is known as Wilhoit’s Law, named after its coiner Frank Wilhoit, though apparently not the Frank Wilhoit you’re thinking of (if you’ve heard of any Frank Wilhoit at all). The logical consequences of this law resemble an analysis of the Nazi regime in Germany by Ernst Fraenkel, called the “Dual State.” Essentially, many of the subjects of a dictatorship may tolerate the dictatorship, rationalize the dictatorship, or even believe that no dictatorship exists, because the government only acts as a dictatorship when dealing with its political enemies and targets: in Wilhoit’s terms, those the law binds but does not protect. In actuality, the State has the ability to act with arbitrary power, through to the use of lethal force, against any person at all. It simply refrains from acting against those people it depends on for support, allowing those people to live freely (to a point) and believe that their own rights are guaranteed. The appearance of the rule of law, constitutional government, and legitimacy are maintained in the eyes of an in-group, perhaps a majority of people, but there are no protections afforded to the out-group, and consequently no real, structural protections for the rights of the in-group either. The facade is secure only as long as the people who benefit do not object on behalf of those who do not.

To accept the entrenchment of a Dual State, no matter which side of the in-group/out-group divide you find yourself on, is a moral catastrophe. If the State imprisoned you because they said you were dealing drugs, you would insist that you were innocent, and demand they prove the charge. Would you simply take the State’s word for it if the accused were your next-door neighbor? Or any other person at all? Are you simply so convinced of your own perpetual impunity that you are willing to play the game by two sets of rules, with no concern that they could be switched on you at any time?

I hope not; I doubt you would have made it this far otherwise. But the fact is that demanding equal rights and due process for every individual, and holding the government to strict accountability in all matters (but especially in its exercise of violence), is the only durable guarantee of freedom for any person over the long term. A firm commitment to these principles requires a commitment to facts and evidence, but just as important is the moral commitment to afford to all others what rights you would expect for yourself under the same circumstances, no matter what those circumstances are. It requires the humility to accept that sometimes the truth can be difficult or impossible to know, and that therefore the guilty may not be punished, no matter how guilty they are. There can be no in-groups or out-groups: we must all be bound or protected equally.

A more equal and just society cannot exist unless an overwhelming majority is convinced of the superior morality of the rule of law over the desire to see your enemies arbitrarily hurt. I don’t think we are incapable of this, but I have been long disabused of the notion that this nation or any other has within it some providential well of superior political morality to begin with. If we want to be regarded as an enlightened people, we have to prove it.