TheAgitator.com
Should There Be a Constitutional Right to DNA Testing?
Tuesday, March 3rd, 2009I have a piece up at Reason looking at the Osborne case that was argued before the Supreme Court yesterday.
At issue is whether the government has the power to deny post-conviction defendants the right to test DNA evidence that could definitively establish their innocence.
The oral arguments (which happened after I wrote the piece) were quite odd. More on that later.
You mean like all our other constitutional rights that the government waves away at it’s convenience?
I wouldn’t be at all surprised to see them rule that a constitutional right exists, but I will be surprised to not find a big fat “but” attached to the ruling.
It’s hard to argue that you should be able to appeal after all your appeals are exhausted. It’s basically like changing the rules during the game.
However, with technology you will always have new evidence available that was not available at the time of conviction. But, does this give every convict the right to ask for a DNA test, even if they know they are guilty, with the hope that, somehow, they took the wrong sample? It would definitely bog down the court system and impede on the newly accused’s rights of a speedy trial (as an overtaxed system will not be able to be so accommodating).
I’m on the side of getting it right, tho. I don’t believe an innocent man should be punished and, as such, would rather that all people have a right continue appealing so long as NEW evidence can be introduced.
How could any, moral, person ever deny finding evidence to exonerate the prisoner, when the prisoner turns out to, actually, be another victim? The ethics of the situation seem to make the answer clear! But, I guess common sense and “the right thing to do” does not always win, in today’s screwed up society.
Well, the cost could be a problem. The government cannot afford to pay for the tests!! But, I would bet there would be no problem in getting private funds to pay for a DNA test to help prove a prisoner’s possible innocence.
It may not be one of those inalienable rights granted by our creator. I guess I could think of it as the right to not be falsely imprisoned. Maybe, we would have to think of another way to define “rights”. There is no doubt, in my mind, that, doing the testing would be right! But with a bunch of lawyers involved, I could never predict the outcome.
Personally, I’m inclined to side with Scalia and Thomas on this one… The Constitution simply provides for a fair trial and access to an appeal. Keep in mind it’s a Constitution we’re expounding upon; it paints in broad swaths and leaves the details to others. As such, while I absolutely believe that prisoners should have access to potentially exculpatory DNA testing, I don’t believe that right is safeguarded by the Constitution. There are plenty of rights that I don’t believe are found in the Constitution that I nonetheless feel are very important rights. (One significant example is the right to privacy.) However, just because a right is important doesn’t mean I can read it into the Constitution when it’s not actually there (as we’ve done with privacy).
Now, having finished my constitutional rant, I will certainly acknowledge that–given our federal judiciary’s modern tendency to read all sorts of things into the Constitution–this is as worthy a reason to expand the notion of due process as any. Also, I’m not a due process scholar, so I’m open to legal arguments for why denying access to testing violates the Fourteenth Amendment.
Legal arguments aside, even if the Constitution doesn’t explicitly proscribe the government from denying such testing, its decision to do so is sickening.
Interesting case. I can see both sides of this. On the one hand, it is true that new technology shouldn’t necessarily equate to new rights. But, that may not be what is happening here. If the argument from Brady is that the new technology is essentially equivalent to the prosecution not having turned over all the evidence the first time through, then there may be more to this.
Personally, I think it is far more important to achieve the concrete goal of not having our government locking up innocent people than to achieve some ephemeral goal of “finality”. As well as it may be true that there is no Constitutional guarantee of infinite regress in the appeals process in the face of new technology, “finality” is not a Constitutionally enshrined guarantee, either. I would want to see that the DNA testing be allowed, at the defendant’s expense.
I know that no one likes to hear this, but this is probably a case where the action ought to be at the state level, since the Constitution is purposefully vague about many areas of criminal law and procedure (since the Constitution was never intended to grant the federal government any broad authority to define and prosecute crimes). Even if the Court decides that there is no (federal) Constitutional guarantee that these convicted people get a shot at exoneration via DNA testing, there is nothing to prevent any state from guaranteeing it.
I do not understand the argument of “if there was doubtful evidence that supported his innocence” statement.
I’m sure that all the people who have been found innocent by DNA testing after conviction, were beyond a doubt guilty at their trials.
I don’t see the issue, if the case against his is so good, then testing the sample will only confirm guilt.
Oh wait. The case against him is crap. It consists of an iffy identification and the testimony of the other assailant. The ‘confession’ obtained in 2004 was made under duress.
From the article:
“If there was other doubtful evidence that supported his…possible innocence…things might be different. But it’s merely a wish and a prayer at this point.”
Oh my god what an asshole! Basically… he’s saying “Sure, our case was shit and had no actual evidence… but our smooth talking mouthpieces convicted him anyway! We’ll happily convict anyone who can’t prove their innocence!
It’s odd that the justice system can’t be bothered with the issue of actual innocence and yet it finds time to arrest, charge, convict, and incarcerate thousands upon thousands of people whose only crime is the pursuit of personal pleasure (which apparently is not a Constitutional right, either).
People who think the government is their friend must consider themselves blessed, given the infinite supply of it.
@ #4 | ClubMedSux: You’re pulling a Robert Bork on the Ninth Amendment in your analysis. Powers not positively granted the government are reserved to the people. The right to privacy (I assume you mean Griswold and its progeny) doesn’t even have to involve penumbras and emanations, really. The Third and Fourth Amendments clearly protect one’s home from government intrusion, and the First Amendment’s right to associate protects one’s right to meet with others, privately or otherwise. Since the Constitution grants the federal government no power to interfere with those things, the right to privacy is reserved and protected.
By the same token, the right to exculpatory evidence is inherent in the Constitution. The Fifth and Fourteenth Amendments both provide that the government may not deny any person any person of life, liberty, or property, without due process of law.
The issue becomes what is due process. This necessarily changes over time. Today, it would be reversible error not to provide exculpatory DNA evidence to the defense, which would not have been so in 1898. In 2009, there are tests and evidence that were not available in 1989. Even though someone may have gotten due process for 1989, denying that person his liberty today when there exists evidence that might exonerate him if tested (not merely cast doubt on the conviction, like a recanting, but fully exonerate him) is a denial of due process, since the process used to convict him was necessarily flawed by today’s standards (inferior DNA testing).
The test should not be whether the process at the time was fair, but rather, whether the process, if it were in place today, would be proper. Because we would not convict based on such a lesser DNA test today, the conviction should not stand unless a modern DNA test confirms the original. To do otherwise is not to provide all of the process that is due.
Under Mathews v. Eldridge, we have to balance the competing interests, and here we have the prisoner’s liberty balanced against mere inconvenience to the state. Under Mathews, I don’t see how we decide that balance in favor of the state.
A more interesting issue becomes whether an indigent prisoner has the positive right to have the state pay for such testing. Under Gideon I think the answer must be yes.
It truly is a Constitution we are expounding, and the genius of a Constitution is that its broad strokes must be filled in over time, permitting it to endure and to continue protecting the rights of the people, even when time, technology and culture change. We probably couldn’t get the Constitution enacted today, so it’s a good thing we already have it.
@ #4 | Freedomfan: See the Fourteenth Amendment’s due process clause for the textual case against your argument.
Post 6, Mack:
“I do not understand the argument of “if there was doubtful evidence that supported his innocence” statement.
I’m sure that all the people who have been found innocent by DNA testing after conviction, were beyond a doubt guilty at their trials.”
Except when they weren’t. We don’t have a ‘Justice System’, we have a ‘Legal System’. In every case I’ve seen, these exonerations were in cases that were just crap… relying on weak identifications and ‘confessions’ from people that were otherwise not connected to the crime by the physical evidence.
There are still people that think suspects won’t confess to crimes they didn’t commit, when in reality it’s quite easy to find someone that will confess. All the prosecution has to do is be against an underfunded defense and pad the jury with people inclined to convict.
It’s win win for the cops and prosecution… awards and kudos all around! Too bad for the guy they just rolled.
I don’t see the Constitution as a list of rights for citizens (which would be far too many to name), but a list of powers for government (much more concise). And I don’t see the provision of a fair trial and an appeals process as being a license to execute the innocent in order to spare the state a few bucks.
The real burden the state needs to remedy is its addiction to locking its citizens up and then referring to it as justice.
My initial response was one of outrage, but reading some of the comments above I have tempered that.
No, I do not think that every single convict should now get DNA testing. I still tend to believe that the vast majority of people convicted are guilty and there was other evidence available to support that conviction. Witnesses, cameras, fingerprints, tire marks all still count. In most cases it is likely that the argument could be made that there is no need to re-open the case, or allow DNA testing, because enough other evidence exists to support the conviction. There is no need to see if the blood drop on Hinckley’s clothes was really Reagan’s, right?
So, on the one hand it makes perfect sense that to avoid needless cost and effort the courts should be able to deny ridiculous requests for DNA testing.
However, there are cases where it is reasonable and necessary. This has been proven beyond doubt by the Innocence Project. And it should not matter whether or not you have used up all of your appeals. These cases should not be denied.
But we all know that if given the power the courts will deny DNA testing because they fear exoneration. Because the DA or judge in the original case will look bad and the people on our benches are not above letting an innocent man sit in jail to protect a buddy.
So I think the right to request DNA testing should exist regardless of appeal status. And the right to deny the testing should exist at the lower levels of the courts, so there is room above for overturning a lower courts denial if necessary.
Another alternative would be to have DNA requests reviewed by non-affiliated courts in other jurisdictions or states. Possibly without even name or case information. Just a docket of the evidence that was presented and why the DNA testing might overturn the conviction.
Hell, I don’t know. All I know is we cannot trust our judicial system to do the right thing on their own, and that is the saddest thing of all.
My money is on this case being decided the wrong way (as usual), that being against testing that could potentially free an unjustly imprisoned innocent and in favor of saving the state a few bucks and minor inconvenience.
I agree with ktc2. DNA testing could embarrass a system that has already been embarrassed a lot. If they allow it, it will be only within a very narrow set of circumstances.
John @ #9:
Thanks for the thoughtful analysis. I’m still not entirely sure where I fall on this issue, but your argument is persuasive and exactly what I was looking for. Regardless of the legal merits of the case, it’s embarrassing that we would even NEED a Constitutional safeguard to protect us from such government actions.
“It’s hard to argue that you should be able to appeal after all your appeals are exhausted. It’s basically like changing the rules during the game.”
So following rules is a more worthy goal than reducing the number of innocent people the government locks in cages. A common view, but one that most people have the good sense to conceal, from others, and (more importantly) themselves.
The state has a very large incentive to make sure the right person is locked up for a crime, at least the sorts of crimes that we’re usually dealing with in these cases (murder and rape). We tend to focus on the wrongly convicted here, which is good and all, but we have to remember that for every wrongly convicted prisoner there is a real honest-to-God murderer or rapist free to continue to harm society.
#17: Micheal Chaney:
If by ’state’ you mean us, the people in society, then yes… you are correct, we have a large incentive to ensure that only the guilty are incarcerated.
But, if by ’state’ you mean agents of the state like police and prosecutors, then no. They have a large incentive to ensure their continued employment and furtherance of their careers by obtaining as many convictions as possible.
“The state has a very large incentive to make sure the right person is locked up for a crime, at least the sorts of crimes that we’re usually dealing with in these cases (murder and rape). We tend to focus on the wrongly convicted here, which is good and all, but we have to remember that for every wrongly convicted prisoner there is a real honest-to-God murderer or rapist free to continue to harm society.”
The state does not have a large incentive that make sure the right person is locked up for a crime. They have a very large incentive to lock up somebody for the crime (to look like they did something about it), a small to modest incentive to have a good case against that person (in case investigative types start sniffing around and can actually get the attention of the media), and a large incentive to make that conviction stick (lest they look like idiots), but it seems to me that having the right person is actually a rather small benefit (if any) for the agents of the state.
Constitution shmonstitution. Why do we need advanced DNA testing when we have other methods that have worked so well for so long?
http://www.youtube.com/watch?v=yp_l5ntikaU
You burn witches = wood burns = wood floats = ducks float = if she weighs the same as a duck, she’s a witch
Would a member of Congress get the new DNA test? Yep, nothing wrong with this legal system.
Nice to see people making the distinction between responsibility and incentive.
The state (government, not the people) have the responsibility to lock up the right people. They have the incentive to lock up a lot of people and close out all cases with a conviction.
The people have both the responsibility and the incentive to throw these state mutha fuckers out on their asses (by any means necessary) when they don’t live up to their responsibilities.
John at #9
you said
“Powers not positively granted the government are reserved to the people.”
I assume you were paraphasing the 10th amendment
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
or just stating a truism. Either way, the people have the power to require DNA testing and its not through constitutional challenges, but enacting laws.
This is truly an area where the people should demand that their states offer any DNA testing available as a matter of law.
DNA testing can only be used if there is comparative DNA to be tested. Not every rape, murder, or other crime has this kind of evidence. Thus, the fear that “every criminal” would be granted DNA testing is not valid. Now, whether or not this evidence is collected or destroyed could be a concern.
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@ #22 | ElScorcho: No, I was paraphrasing the Ninth Amendment
The meaning of the Ninth is fundamentally different from the Tenth.
To clarify my remarks, “state” == “the people”, not the employees of the state. You are correct, some employees of the state have an incentive to look good in the short term. The actual state has an incentive to make sure that people who commit heinous crimes are kept secluded from the general population (i.e. in a prison).
That argument was made in this case.
Not to mention 20% of the cases which resulted in exoneration.
I’d rather they not rely on “other evidence” when weighing whether to consider conclusive proof of someone’s guilt/innocence.
The supremacy of finality in criminal cases is rooted in a primitive period of our social development. With few notable exceptions, criminal procedure generally relies on 16th-century assumptions about the nature of human beings and science. Even advances in expert testimony standards have come about largely because deep-pocket litigants in civil cases have pushed for them (e.g., Daubert and Kumho Tire were both civil cases).
Scientific developments often occur incrementally, and this might make it difficult to know when the science has advanced sufficiently to justify revisiting an old case. But that doesn’t justify denying the existence of a due process right to have evidence revisited when there has been a sea change in forensic science.
I read the transcript of the oral argument before the Supreme Court yesterday and found the State’s following assertion inexplicable and revolting: “…I don’t think that the mere existence of the possibility that DNA could exonerate is necessarily sufficient — a sufficient basis to then do the testing.” That just reinforced what I already knew, i.e. the possibility of exoneration and any test to determine the possibility of exoneration is not something in which the State is remotely interested. The State is not interested in the truth or in investigating the truth or in finding out the truth. In fact, the State is opposed to any revelation of the truth. It’s sickening.
“To clarify my remarks, “state” == “the people”, not the employees of the state. You are correct, some employees of the state have an incentive to look good in the short term. The actual state has an incentive to make sure that people who commit heinous crimes are kept secluded from the general population (i.e. in a prison).”
But you are mistaken. The state is not the people. However much “the people” want X, if the agents of the state want Y instead, the state is going to pursue Y. The people want justice. The agents of the state want convictions. Therefore, (as can be readily seen), the state pursues convictions rather than justice.
Read the rest of my post. I agree that getting it right is the most important thing but, as far as the government and taxpayer money to pay for trial after trial is concerned. I guess you could make unlimited appeals so long as NEW evidence is discovered (or new ways of testing old evidence) but there is a limit on appeals because there are only so many court dates to give out and people have a right to a speedy trial.
I believe this is wrong on two levels.
First, the people doing the prosecuting believe they are pursuing justice for the most part and desire convictions because they believe they are pursuing justice (irrespective of whether they actually are: even Hitler didn’t get up in the morning and say, “I want to do injustice today”).
Second, it is the people who want convictions. People desire justice only in the roughest sense of “dessert” so when someone is convicted of a crime he didn’t commit, but he probably committed others, most people are fine with that. For that matter, there is probably no such thing as existential justice for anyone to desire, but I don’t think many people really desire it. People are perfectly fine with the utilitarianism problem in criminal justice.
Not everything in life is a legal question: some are moral ones. Here’re two:
1) Why not grant the request for DNA testing if the sample is available and not tainted? If it matches Osborne, he rots. If it exonerates him, he walks. If it’s inconclusive, we’ll look at the evidence as a whole.
2) If the DNA matches Osborne it makes the case for the D.A. So how come he is resisting?
I don’t know if I’d want to make it a “Constitutional right”, since I believe that Constitutional rights should principally be negative rights, forbidding the government or anyone else from interfering with your right to do something (for example, the right to keep and bear arms or the right to freedom of the speech/the press doesn’t mean that the government must provide you with a gun or a printing press, simply that it should not interfere with your ability to own and operate one). That’s why I hate claims that there are rights to things like health care: one cannot have an inalienable right to something which can only be had if it creates an obligation on the part of someone else to provide that good or service.
Instead, I would consider the Constitution to speak to this issue only in terms of a fair and speedy trial, and it would make sense to me that that would include the ability to access evidence after the trial if it might later prove one’s innocence.
Different jurisdictions will of course make their own rules to reach (or subvert!) that end, but I would suggest something like:
1) Evidence such as DNA should be preserved until the end of the duration of the sentence if the defendant is found guilty.
2) Access to the evidence for the purpose of using new technology to establish innocence should not be denied.
3) If the defendant is proven innocent through the use of the new technology, then the government pays for the test; if not, the defendant must pay. (Imagine the financing arrangements some entrepreneurial soul might develop under this scheme!)
[i]Once you’ve exhausted your appeals, Scalia argued, you’ve exhausted your right to be heard in the courts, [u]even if new evidence could establish your innocence.[/u][/i]
God this is scary stuff. Makes me wonder if I went to sleep and woke up in some alternate universe. This is certainly not the America I thought I grew up in.
This is an easy one.
There should be no constitutional right to anything.
The U.S. Constitution is illegitimate. It is founded on violence.
However, there should be natural rights to all sorts of things, beginning with the right not to be threatened with violence and the right to do as one pleases as long as no direct harm to another individual is caused.
The U.S. Constitution has done as much as any other Statist fig leaf to destroy those two rights.
John,
“I believe this is wrong on two levels….”
The point is that what the agents of the state pursue is what the state pursues. The state is nothing but a group of individuals, and the actions of the state are nothing more than the sum of the actions of those individuals. What the state does is what those people do, and what those people do is not meaningfully influenced by the outsiders. Most people want the Iraq war ended for real. I suspect most people want the war on people who use some drugs ended, or partially ended. Neither of those things are happening any time soon because the agents of the state are the ones in control, not us.
It could be argued that the prosecutors really want justice, and see convictions as a vehicle towards that goal, but that same argument could apply to the people. We’ll never know what’s in the hearts of those prosecutors who convict people by any means necessary – whether they really desire justice or simply convictions to further their career is irrelevant to the innocent people they have locked in cages.
—-
“The U.S. Constitution has done as much as any other Statist fig leaf to destroy those two rights.”
Well yes, but anybody who didn’t already know that will ignore you, believing you to be off topic (if not crazy).
Because it’s just not possible for anyone to legitimately disagree in principle.
Zargon, you gotta start somewhere, and what better place than with those who don’t understand?
John, you’re a bright guy, no doubt. If you actually legitimately disagree in principle regarding the essence of the U.S. Constitution, this anarchist and others here are just champing at the bit to read your opinions and correct the flaws in logic.
What I suspect we would all conclude from that exercise is that while you might morally object to the codifying of force that the U.S. Constitution represents, you would argue that given human nature there simply is no other or better way to organize society.
Those of us who disagree with that opinion are trying to reduce the amount of violence in the world. My experience is that debating the details of the Constitution is akin to performing deckhand duty on the Titanic. Worse, it actually serves to increase the violence.
If a position can be demonstrated to be illogical, can it still be legitimate?
#31 Nando
“people have a right to a speedy trial.”
I don’t think you understand that phrase. The right to a speedy trial means that the state can’t keep a person imprisoned indefinitely without a trial. It doesn’t mean that after the trial is over, a person can’t still try to prove their innocence.
“The anti-Osborne position puts a premium on finality and closure”
Indeed. As fast as science and technology are advancing, we can’t afford to focus too much on finality. This is especially true when it comes to the possibility of determining actual innocence. IF an innocent man is in prison and a guilty person remains free to injure others, then justice (a very subjective concept, I know) has obviously not been served. The power of the state to take an individuals freedom (or life) must be severely limited, thus I side with Osborne. Put another way, hey Alaska, if you haven’t done anything wrong, then why are you opposed to letting us have a look?
You misunderstood my post. I meant the other people who would have to wait longer for their trials because the courts are tied up with appeals.
@Cynical: Just because you disagree, does not make a position illogical (or wrong). Supposing otherwise is error. You have in the past stated that you don’t see any reason for government to exist. That demonstrates an inability (or unwillingness) to fairly assess arguments or evidence.
Your co-religionist makes my point more forcefully than I can:
I don’t have to think you’re crazy to believe you are wrong, and I “didn’t already know that” because I disagree with the premise. The entire point of my comment was to sardonically demonstrate the closed-mindedness his sentence entails.
Having rejected even the possibility that one might be wrong, there is no longer any point in talking. That is the very logic that leads to the use of force to impose one’s will on others. I leave for other readers to examine the irony of anarchists having thoughts of totalitarians running through their heads.
Finally, this is not my space to make an argument for the existence of government. We are Radley’s guests, and we are commenting on his posts.
First, John, I would appreciate you differentiating between me and my “coreligionist.” You know I respect what you have to write here, so I find your stooping to ad hominems to be beneath you. I will take responsibility only for my own words, unless I have explicitly endorsed someone else’s. As such, I will leave it to my “coreligionist” to defend himself.
Second, I believe that any statist who claims they can control the State (or prefers limits on State power) to be illogical. The State does not recognize limits and is resistant to individual preferences on how it conducts itself. However, any statist who openly admits that he desires force as the organizing principle of human relations is on firm logical ground (if not moral ground). The illogic results from the disconnect between desiring freedom but proposing force as the solution.
So, where do you stand, John? Is it so difficult to admit that you are a proponent of State force over individual freedom?
“You have in the past stated that you don’t see any reason for government to exist. That demonstrates an inability (or unwillingness) to fairly assess arguments or evidence.”
While I don’t believe this to be completely accurate, I will grant your premise. In my perfect world, there is no government. Or at the very least, there is universal political equality, so that there is government but no favoritism — a government of all. I think I have made it obvious by now that my central argument is against CENTRALIZED government, and that the practical extension of my argument is decentralization of government to its smallest possible unit. In the perfect world, this unit is the individual. In the real world, if it were the city or neighborhood or family, this would be dramatic progress toward freedom.
I acknowledge the difference between “government” and “State.” It is theoretically possible for a “government” to be under control, lawful and moral if it is founded on voluntary cooperation. What you and I live under in the USA is a “State,” not a government, where the organizing principle is force. Since the State has co-opted the government, my arguments here tend to conflate the two out of convenience. I apologize if this has led to confusion, but I thought we were all on the same page.
“Having rejected even the possibility that one might be wrong, there is no longer any point in talking.”
This certainly does not apply to me. I always hold out the hope that I am wrong. I am waiting for you to demonstrate the flaws in my logic. At the precise moment that these flaws are exposed, I will admit I am wrong. I’m sure if you read some of my posts along the way, you’d see several examples of me being enlightened by other posters here.
“I leave for other readers to examine the irony of anarchists having thoughts of totalitarians running through their heads.”
Wow, ad hominems earlier, and now strawmen. I expect better from you John. If you can’t understand how one’s logical conclusions can lead to a worldview, and how anarchists are NOT FORCING that worldview on anyone, and how totalitarians DO FORCE their worldview on everyone they can reach, and how you appear to be an apologist at best for the totalitarian system in the land in which we live, then I’m at a loss.
“Finally, this is not my space to make an argument for the existence of government. We are Radley’s guests, and we are commenting on his posts.”
Pffft. Don’t worry John, Radley will let us know if we squander too many of his 0’s and 1’s. Considering that the entire blog calls government (or the State) into question, I think all of these discussions are relevant. Clever way to try to end it though.
1. I did not engage in an ad hominem anywhere. You could take co-religionist as an insult, I suppose, but my dictionary says that a co-religionist is “someone having the same religion as another person.” Since you and he share beliefs (he seems to be expressing agreement), I think the use is valid.
2. There is no straw man. I said the same thought pattern is what guides totalitarians who force their beliefs on others. That is true, and I do find it ironic. My suggestion is not that anarchists are totalitarians, but rather that denying the possibility that one might be wrong is what leads to totalitarianism. Aside from that, how is an anarchist revolution NOT forcing your beliefs on others? Were anarchists to achieve what they want, an overthrow of the government, then many people would be harmed and certainly would not have chosen that outcome. I think you’re overlooking the natural consequences of your position.
3. As far as I know, you have never set forth your opposition to government as such (your distinction between government and state is a distinction without a difference. A smaller government is still a government) in any meaningful way that it might be refuted. Any time you want to set forth your premises, I would be glad to engage them.
4. Wasting Time. As I said, I think that arguing with true believers of all stripes is a waste of time. I think you are a true believer. I am not sure you CAN articulate all of your premises (not because you are stupid, but because most of the time we all make a great many assumptions that we become so comfortable with that we don’t even realize we hold them).
Violence is a fact of human nature that we cannot escape. The only issue is how it will be applied. I prefer a system of rules with a referee enforcing those rules. The analogy I would make is to a basketball game. Assuming that the referees call a fair game (not always a safe assumption) then the game will be more equitable than a game where people call their own fouls (anyone who has played with a guy who calls a foul every time he misses will understand), unless everyone involved is a saint (which we know is not true). In fact, even if the refs are cheating a bit, they are probably still more fair because the spectators will keep them that way.
In fact, I think this gets to the heart of what I perceive your error to be. You believe that the problem is government as such. I think the problem is incentives and, as a result, the people themselves.
John, it’s clear to me from your answers that you’re not reading my meanings correctly. I understand what you mean about wasting time though. This discussion, while engaging for awhile, has run its course. Thanks for your insights.
Second, I believe that any statist who claims they can control the State (or prefers limits on State power) to be illogical.
Actually, the state’s power could be kept in check if the public were made aware of a few simple things:
-1- Any government action which is contrary to the Constitution is ILLEGITIMATE. Statutes which are contrary to a plain-language reading of the Constitution are void. Cops who act contrary to the Constitution do so without any authority, and are thus (depending upon their actions) burglars, robbers, assailants, kidnappers, murderers, etc. (with the proviso in #2).
-2- To be legitimate, laws must be knowable. It is not legitimate for a government to significantly punish people for doing something they reasonably believed to be legal. Note that this provision applies to some extent to government personnel; if cop #1 falsifies evidence to get a warrant which is then served by cop #2, and if cop #2 has no reason to doubt the legitimacy of the warrant, cop #2’s service of the warrant does not make him a burglar. Note, however, that such “good faith” provisions may legitimately protect cops from criminal prosecution, that does not imply that searches become legitimate.
-3- The proper role of jury nullification is not so much to prevent the government from enforcing ill-advised laws, but rather to prevent the government from overstepping its legitimate bounds. For example, if the government can’t convince a jury that a search was conducted in reasonable fashion, the jury should generally refrain from construing evidence gathered therein in a manner detrimental to the person searched. If the government is prosecuting someone for a statute or law related to interstate commerce, but can’t convince a jury that a defendant’s action in a particular case materially involved interstate commerce, then it should acquit on that basis.
If more people had been taught such things, this country would be in much better shape.
People desire justice only in the roughest sense of “dessert” so when someone is convicted of a crime he didn’t commit, but he probably committed others, most people are fine with that.
People believe what those in power want them to believe (for the most part). Those in power benefit from high crime rates (it allows them to ask for, and receive, more power). It is thus in their interest to punish the innocent and pardon the guilty.
I understand your meanings quite well: I just think they are juvenile. The sort of things a sophomore in high school believes because Ayn Rand said so in Atlas Shrugged. That is why I challenged you to set forth your premises. If you choose not to, that is not my problem.
Actually you demonstrated that you do not understand my meanings at all, John. You only think you do. You are now stooping to just the sort of ad hominem attack I justly accused you of in my earlier post (the co-religionist snark). As I have repeatedly written in the past, and any logician would aver, the ad hominem is an admission of defeat. You’re out of bullets, John.
My premises are well-developed and posted at length all over this site, and will be reposted in the future as I choose. Your challenge has been met.
Your utilitarian view of human relations would earn you a high post in the State, John. If you haven’t already, you might consider that career path.
Supercat, those suggestions are all well and good, but since the Constitution is composed of words, and words must be interpreted, then the State’s interpretation will carry the day. All of this “plain reading” etc. is done by agents of the State. The first goal of the State is institutional preservation above all else.
And frankly, you answered your own question in the last paragraph. There is a reason why education in Amerika is State-controlled. It is to suppress just the sort of knowledge you advocate.
Wait, John! Is this you?
http://www.johnjenkins.org/
It would explain quite a bit, but it’s probably a coincidence.
My last words to John Jenkins:
“Statists constantly accuse anarchists of being naive, or utopian, or infantile, because we so often question the value of playing the game and working within the system. But if this is supposed to be a strategy based on the empirical prospects for success — and not just on some kind of felt need to come off as properly Serious and Grown Up to the right sort of people — then let’s look at the facts, and let’s see what kind of activity actually offers proven results, and realistic hope for success in the future.” — Charles Johnson, The Rad Geek