About This Blog

Judging Crimes is a blog about criminal law, violent crime and the judiciary, dedicated to making the liberal case for greater democratic control of the criminal justice system.  It's a "view from the trenches" because it's written by a practitioner, not an academic or journalist.  It examines the changing role of the judiciary in American society by looking at what judges actually do, rather than what they say.  I know what they do because I deal with the consequences every day. 

Opinions issued by judges, from Supreme Court justices on down, are justifications for the exercise of governmental power.  But it is the exercise of power itself that should command our attention, not the justifications.  Judging Crimes is concerned with the reality of judicial power rather than the verbal formulas used to defend it. 

American law professors have long liked to say they teach their students "to think like a lawyer."  Learning to think that way is a matter of internalizing certain assumptions.  The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question.  Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so.  Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions  rest.  

Judging Crimes won't be filled with daily entries commenting on the day's events or provide a best-of-the-web welter of links.  Many other blogs already do that, far better than I could hope to do.  (Check out these.)  Instead, Judging Crimes will contain pieces of a length that might seem long for a blog but would be short in a serious magazine.  I hope to post new pieces several times a week.

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« 234. Something to hide | Main | 232. Is there life on earth? »
Thursday
Feb012007

233. Taking it on faith

The Atlantic this month is running a peculiar piece on presidential dishonesty.  The author, Carl Cannon, is the son of Reagan's biographer, and he displays a peculiar obtuseness based, I guess, on moral certainty: a lie is a lie.  So Clinton supposedly boasting that he's the first president who knew anything about farming - a remark Cannon deems significant enough that he repeats it in an on-line interview - belongs in the same category as, say, "Saddam Hussein still has chemical and biological weapons and is increasing his capabilities to make more."

(From the same speech, not yet removed from the White House website: "Some worry that a change of leadership in Iraq could create instability and make the situation worse. The situation could hardly get worse, for world security and for the people of Iraq. The lives of Iraqi citizens would improve dramatically if Saddam Hussein were no longer in power")

But there's another oddity in the article.  Cannon writes:  "[Jimmy] Carter’s revelatory form of communication (admitting to Playboy that he 'looked on a lot of women with lust,' for example ...) was a poor substitute in voters’ minds for executive-branch competence, or for leadership that could make Americans feel good about themselves."

Carter's remark wasn't revelatory in the icky way Cannon apparently imagines - on the contrary, it was Sunday School stuff.  Carter was referring in a direct and (one would have thought) unmistakable way to: "Ye have heard that it was said by them of old time, Thou shalt not commit adultery.  But I say unto you, That whosoever looketh on a woman to lust after her hath committed adultery with her already in his heart."

I find it slightly mind-boggling that a sophisticated journalist - Cannon covers the White House for National Journal - should have succeeded in keeping himself so ignorant about religion in American politics.  How can you possibly hope to understand Carter, let alone Bush - or even Clinton's "new Covenant" - if you aren't willing to put in the effort necessary to understand what they're talking about?

This inability of media types to understand the language of Sunday School contributes to a persistent misunderstanding of the evolution-in-the-schools issue.  It's not a hillbilly relic, like children with two first names and high-lonesome ballads.   It's a powerful political tool. 

And - this is the point this post is working its way toward - it's not a tool that's unique to the powerful political movement kick-started by the Supreme Court's Roe v. Wade decision.  It's universally available to those who wish to make use of it.  The device is this: make people distrust the evidence of their own senses and reason.  Convince them of the existence of a higher truth than any they can discover for themselves.  Because once you convince them, they can't be argued out of it.

That's why dinosaur bones, carbon dating, Lucy and the strata of the Grand Canyon made no impression on the Kansas School Board.  If anything, they were arguments in favor of surrendering one's understanding to the revelations vouchsafed to others - it's simply beyond human comprehension.

If you get people in the right frame of mind - by subjecting them to a rigorous, indoctrinating education, utilizing a process that first destroys their sense of identity, shocks them into a psychological crisis, and then rewards them outlandishly for radically modified ways of thinking - you can actually get them to believe stuff that their own senses and their own rational minds would tell them is ridiculous. 

For example, take the fifth amendment.  Here's a link to the text.  Do you see anything in there that says if a drunk driver pays a fine for crossing the yellow line, he can't be prosecuted for killing a woman in an oncoming car?  The Supreme Court did: "the Double Jeopardy Clause of the Fifth Amendment demands application of the standard announced today".  Demands.

But, hey, the Constitution can change its mind, too.  It took just three years for the demanding (yet fickle) fifth amendment to do a Emily Litella on us.

Lawyers and judges in America accept this sort of thing as normal.  They believe firmly in two things.  First, the Constitution is the statement of the eternal verities of statecraft, the unquenchable flame to which we have tethered our national ship of state, the beacon in the night carved in granite.  Second, it flops around like a fish on the line.

The Supreme Court demands a faith from us at least as irrational as that demanded by the politicians of the religious right.  We're expected to disregard what our own reading of the text of the Constitution tells us - who're you going to believe, me or your lying eyes? - and believe instead that it says something totally different, something wonderful and yet not quite of this world, almost, one might say, miraculous.  Like the sound of a heavenly choir drifting from an august cathedral.

And the strange thing is that so many lawyers, who otherwise consider themselves a skeptical, freethinking bunch, buy it.  Like the fish.

Reader Comments (1)

The Cannon quote makes a good intro, but are you sure its a "the media just doesn't understand religion" kind of mistake? Given that its coming from an apparently right wing biographer, and the extensive nature of the error, doesn't it seem more plausible that it was a willful misrepresentation?
February 2, 2007 | Unregistered CommenterPatrick

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