Category Archives: Law and Politics

Bible and Theology, Law and Politics

#58: Acceptable Killing In Our Society

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This is mark Joseph “young” blog entry #58, on the subject of Acceptable Killing In Our Society.

This began because someone of my acquaintance posted a video supporting abortion.  The blurb under the video read, in part:

There are many reasons why a woman might decide to end a pregnancy—and many barriers to safe and legal abortion.

I did not want to start a fight, but I found that statement quite offensive–offensive enough that I felt it necessary to reply:

There are many reasons why a parent might want to kill his or her own child, but that does not mean we as a society have to approve that.

The question is whether an unborn child is still a child.  The answer cannot be so easily presumed.

I included a link to mark Joseph “young” web log post #7:  The Most Persecuted Minority.

She replied:

You are close in trying to identify the correct question in regards to this issue.  The real question though, remains when in the stages of pregnancy do you develop a child?  Only when than [sic] can be determined, should it be appropriate to address your question.  In our society, the answer is yes.  It is acceptable to kill.  We kill in war.  We kill on the streets.  We allow for capital punishment.  We allow for assisted suicide.  I am never going to argue if abortion is morally correct.  But what you attempted to address is the one question others throw out there with buzz words like “kill,” and “child.”  If the question was simply, should a pregnant female be given rights to determine to carry a child to whatever capacity she chooses, then hotheads would have little to rage over.  What America is trying to measure with your argument Mark, is can we limit human potential, and if so, to what extent?

I could see that pursuing this in that format was going to become unwieldy, so I pondered for a while and decided to respond here.

img0058Guns

I will confess that I am not entirely certain of everything she meant in that post, particularly at the end concerning the phrase “limit human potential”.  Is she talking about limiting the potential of mothers by requiring them to bear the children they have conceived, or of children by killing them before they breathe the air, or something else?  That, though, is not the bulk of her comment, and it is the other part that particularly disturbs me.  She raises the question of whether in our society killing is acceptable, and affirms that it is, following this by a list of “acceptable” situations for killing.  I am going to change the sequence some, but I argue that killing people is not acceptable behavior in our society, despite her examples to the contrary.

Let’s begin with

We kill on the streets.

I doubt she means in traffic accidents.  Vehicular homicide frequently results in at least an involuntary manslaughter charge.  Certainly there are accidents in which someone dies and it is ruled that no one is at fault, just as if a bit of space debris happens to crash into your house you can’t sue NASA.  That amounts to an admission that we accept that modern technological life is a bit dangerous and some people are going to die through no one’s fault.  Yet clearly, although there are vehicular murders (and they are so treated), this is hardly an example of society accepting that we are permitted to kill each other.

Killing on the streets seems rather to imply the intentional action of killing each other, and we have a fair amount of that in gang warfare and drive-by shootings.  That we have them, though, does not mean we accept them.  Every such incident is treated as a homicide investigation with the intention of bringing murder charges against the perpetrator.  They are not all solved, and not all the perpetrators are convicted, but we don’t really accept that these killings are blameless despite their frequency in our society.  Sometimes we call it “terrorism” and make a federal case of it.

On the other hand, it is sometimes the case that the police shoot people on the street and are exonerated.  The famous cases are of course when a white police officer shoots a black person, but black police officers shoot white people also.  In every case of an “officer-involved shooting” there is an investigation, the officer is usually suspended pending the outcome of the investigation, and in some cases charges ranging from disciplinary actions to murder convictions follow.  That in most cases our officers are cleared of guilt indicates bias only sometimes; it more often commends the training they have been given.  After all, there are situations in which we excuse and even justify killings–self-defense and defense of third persons the two that most commonly apply in these cases.  Yet when a claim is made of self-defense or defense of third persons, there is always an investigation to determine whether indeed those claims are justifiable.

Our justification for killing the unborn is that they pose a threat to the life or physical well-being of the mother, but no one investigates whether that claim is justifiable, and “the health of the mother” has become a phrase with little more meaning than her convenience.

So what of this:

We allow for assisted suicide.

Do we?

The most current information available to me says that four states–California, Oregon, Washington, and Vermont–have passed legislation permitting physician-assisted suicide, with very specific guidelines (patient must be a resident of the state, at least 18 years of age, have not more than six months of life expectancy remaining, and have requested help from the physician at least once in writing and twice orally not less than fifteen days apart).  One state, Montana, has a state supreme court ruling allowing physician-assisted suicide for state residents, without any clear parameters otherwise.  There are four other states in which the law is uncertain–Nevada, Utah, Wyoming, and North Carolina.  In the remaining forty-one states, if you assist someone in a suicide you may be charged with conspiracy to commit murder.  In no state is it lawful for someone who is not a physician to assist.  That hardly counts as “acceptable”.  It is also illegal in most countries around the world, although a few have permitted it under specified conditions.

Certainly there are a lot of people who think that we ought to permit suffering terminally ill persons to end their own lives, and allow medical professionals to help them.  There are also people who think we ought to do this for the severely handicapped, without their consent.  To this point, the bulk of public opinion is against the idea that people should be permitted to kill themselves, or to help others kill themselves, with impunity.

Our justification for assisted suicide, in those places where it is permitted, is that the patient wants to die, is suffering terribly, and will not live much longer anyway.  No one asks the unborn child if he would rather live or die.

The next might be more difficult:

We allow for capital punishment.

Yes, in many cases we do.  As of last year, thirty-one states had a legal death penalty; of those, four had such a law but with a moratorium declared by the governor so that there could be no executions until specific issues were resolved.  Nineteen states have made the death penalty illegal, and although they include populous states such as New York, New Jersey, and Illinois, they do not include the most populous California or the significant Ohio, Texas, and Florida.  Popular opinion seems to favor the death penalty.

However, death penalty cases involve what we call due process:  judges and juries must listen to the evidence and arguments presented by trained legal professionals, and reach the conclusion that this individual deserves to die.

One of the two objections to the death penalty, the one that is the more cogent in practice, is that given human fallibility it is entirely possible that we are killing the wrong person.  That criminals on death row are later released (not usually because they have been exonerated but because some flaw in the legal process leading to their conviction or sentencing has been identified) certainly demonstrates that fallibility.  That, though, only means that were we completely certain of the guilt and desert of the criminal the sentence would be accepted.  The more significant objection, in our present concern, is whether anyone ever deserves to be killed.  As Gandalf says to Frodo, many died fighting in the war who should have lived; if you are unable to restore them to life, do not be overly quick to take life from another, however guilty you might think him.  We might agree that someone ought to die, but object to the notion that any of us therefore ought to kill him.  So we have this argument, and gradually more and more of the country is rejecting capital punishment.

However, we are having this argument precisely because we have an agreed moral/ethical principle that it is wrong to kill another human being, and we disagree as to whether this is a viable exception to that rule.  Yet if it is, it is based on the conclusion that this person deserves to die.

No one has attempted to say that the aborted child deserved to die, or if they did it was by transference of hatred toward the parent to the child.

That leaves only the most difficult example:

We kill in war.

Yes, we do, and we consider such killing justified, at least when we do it.  Yet it is important to understand why.

There were quite a few wars in the twentieth century.  They occurred for one of two reasons:

  1. One group believed that their lives or freedoms were threatened or compromised by another group, and initiated a war to free themselves from this threat.
  2. One group desired to take possession of the territory, population, or resources of another group, usually based on some claim of right, and so initiated war to seize possession.

Throughout the twentieth century, the United States has always sided with groups we perceived as the oppressed or threatened and against the aggressors.  Our justification for being involved in the war was always the defense of third persons or, ultimately, defense of ourselves.  Our motives might be impugned in many instances–did we defend Kuwait for the sake of Kuwait or because of American oil interests?–but enough of us considered the defense of the people of one country from the aggressions of another a viable moral basis for becoming involved in a war that had already started that these fit the general pattern.  We do not approve war; we do not find it acceptable to wage war for any interests other than stopping someone else’s aggression or oppression.

The reasons for killing in war again do not apply to killing an unborn child.

There are ultimately only three questions concerning abortion:

  1. Is it wrong to kill a human being, absent some specific justification or excuse?  If you answer no to this question, you invalidate all laws against murder and manslaughter and all liability for accidental death.
  2. Is an unborn child a human being?  This is the usual point of the argument, to which I note first that in the absence of certainty we ought to err on the side of caution and defend the life of a “potential human being”, and second that most vegetarians who won’t eat chicken won’t eat eggs, either.
  3. Is the convenience of a parent a sufficient justification or excuse for killing a child?  If you answer yes to this, you justify infanticide, and must find a point at which that no longer applies.  People usually say “viability”, but on the one hand medical advances are pushing back the moment at which a child can survive outside the womb, and on the other hand if viability means the ability to survive completely unaided by anyone else, there are few adults in this country who could do so absent the infrastructural support of thousands of others who provide the necessities of life.  I’m not viable anymore; I could not survive a month in the wilderness unaided by supplies provided by others.

I thus disagree that our society has accepted killing, in the sense that it is acceptable to kill another human being.  If we had, the attacks on the World Trade Center and the Boston Marathon would not have been crimes.  We pretend that abortion is a justifiable killing because the victim is unable to speak for himself.  That applies, though, to thousands of infant, handicapped, and elderly persons, and society is not ready to justify the killings of those people, because we recognize them to be people and do not regard the killing of people as “acceptable”.

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Law and Politics

#54: Nudity as Free Speech

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This is mark Joseph “young” blog entry #54, on the subject of Nudity as Free Speech.

If the thirteenth century histories are to be believed, it is a practice that has roots back near a thousand years to Lady Godiva, who about two centuries prior purportedly rode her horse down the streets of Coventry clothed only in her long hair, to protest the heavy taxes assessed on the local population by the local Earl of Mercia, Leofric–who happens to have been her husband.  The technique has been used in variations since, and has more recently become a legal issue:  can public nudity be protected as a form of free speech?

Lady Godiva by John Collier, c. 1897, Herbert Art Gallery and Museum
Lady Godiva by John Collier, c. 1897, Herbert Art Gallery and Museum

On April 17th, 2012, a frequent air traveler named John Brennan (not to be confused with the Central Intelligence Agency director of the same name) was stopped at a Transportation Safety Administration (TSA) checkpoint in Portland, Oregon.  He had declined to pass through the scanners which would have produced an image of his naked body under his clothing in favor of a metal detector and pat-down.  However, the pat-down detected nitrates from his clothing–a substance found in some popular explosives, as well as in fertilizer, bacon, some hand lotions, and many other products.  This was certain to be a problem, so Brennan responded, in protest, by stripping naked at the checkpoint in full view of other passengers so that it could be plainly seen that he did not have a bomb.

He was arrested for indecent exposure.  It was a weak case–the applicable indecent exposure law in that part of Oregon, home of the “World Naked Bike Race”, only forbade having sexual contact in public and disrobing “with the intent of arousing sexual desire”, both conditions plainly absent here.  However, Brennan claimed that his act of disrobing was a form of protected free speech.  There is precedent for the notion that actions can be classed as speech or expression under the First Amendment, stemming from a 1971 case, Cohen v. California (403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971)), in which the defendant was convicted of “offensive conduct”, defined as including “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,” for wearing a jacket bearing an obscene anti-war slogan to a protest outside a municipal courthouse.  The Supreme Court overturned the conviction, asserting that emotive speech intended to get attention is protected speech.  This subsequently gave rise to Holder v. Humanitarian Law Project (561 U.S. 1, 130 S.Ct. 2705 (2010)), in which actions which were aimed at providing humanitarian aid to terrorist groups were deemed reasonably forbidden in the name of national security, but which classed such actions as freedom of expression and declared that laws which are otherwise about conduct face “more rigorous scrutiny” (greater than the ordinary “intermediate scrutiny” but not as severe as the nearly always fatal “strict scrutiny”) under facts in which the conduct is part of political speech.  The judge in Brennan’s case agreed that his actions were protected political protest, and found him not guilty.

Not willing to let it rest there, the TSA fined Brennan one thousand dollars for “interfering with screening”.  The fine was upheld, although it was reduced by half, in an administrative hearing under the auspices of an “Administrative Law Judge” whose qualifications were that he was a United States Coast Guard officer working for the Department of Homeland Security (DHS).  The extended appeals process for such an “administrative” violation took over a year to reach the head of the department before it could be appealed to a “real” court, the 9th Circuit Federal Court of Appeals.  As of November 11, 2013, an appeal was filed with that court asking that the fine be voided due to several constitutional issues (including the vagueness of TSA regulations), and specifically that his action was constitutionally protected speech.  As recently as October that case was still pending, as the parties await the court’s decision on whether to hear oral arguments or base their decision on the filed papers.

Meanwhile, back in Oregon, Matthew T. Mglej is citing this case in a similar unrelated case.  On May 23rd, 2014, Mglej set up space in front of the federal court building in Portland, posting a few signs, then stripped naked and played the violin to call attention to his cause, a desire for greater transparency in government.  The police arrested him for public indecency (this law makes it “unlawful for any person to expose his or her genitalia while in a public place or place visible from a public place, if the public place is open or available to persons of the opposite sex”) but later released him.  On January 20th, 2015, he filed suit in federal court on a variety of claims including unlawful arrest and violation of his First Amendment right.  This past month U. S. District Judge Michael W. Mosman disagreed, dismissing the suit; Mglej’s nudity was not protected speech, he asserted.

However, as Harvard Constitutional Law Professor Noah Feldman observes (in print as The naked truth about the First Amendment, found online as Protesting Nude in Portland Should Be Protected), the basis for the dismissal is at best dubious.  Mosman asserted that the nudity did not advance the message, that an impartial observer would not have understood how the message and the nudity were connected.  This, as Feldman rightly observes, makes the judge the arbiter of style, as it were, assessing whether Mglej’s speech was effective in achieving its purpose.  The First Amendment does not require that the speaker be articulate, nor give anyone the right to judge whether the message could have been conveyed a different way.  Mglej was attempting to communicate something by his nakedness; does the fact that most people failed to understand what he was attempting to communicate negate his right to attempt to say it?

Besides, part of the message is the medium, and part of the medium is its function in drawing attention to itself and through itself to the message.  Large signs with hot pink lettering do not communicate the message more clearly, they only are more eye-catching; rock bands playing at evangelistic rallies might or might not convey the message as well as the speakers who follow them, but they do draw a crowd–a fact that was not lost on Salvation Army founders William and Catherine Booth, who took brass bands into the streets to draw crowds to hear the message.  Whether or not Mglej’s nakedness clearly conveyed the message of the need for transparency in government, it certainly got the attention of the crowd to hear it.  Absent that detail, it is doubtful that you would be reading about him here, now.  The nudity was as much a part of the message as the violin:  it was the neon sign that caught the attention of passersby to hear the message.

On the other hand, as one city attorney observed, anyone arrested for public nudity could claim that his state of undress was a political protest.  It is easy to imagine that people who subscribe to “nudism” might make it a practice to go about their daily chores completely naked, and assert that they are doing so in protest of the very laws they are violating.  How is that to be resolved?  Can one protest such laws by being naked?

This argument could be pushed to the absurd.  Someone robbing a bank could claim that they are doing so in protest of the laws protecting personal property, or of the unfair advantages accorded to those who own the banks.  Many bombers are already acting in protest, at least as far back as the Viet Nam War protesters, and many rioters become swept up into violent protests that were fundamentally about a reaction against the system.  If breaking one law can be protected speech, can the same be true of all these other laws?

It will be answered that these other crimes are dangerous; people get hurt.  The injury might be physical; it might be economic.  It is clear that we need to protect ourselves from such actions, lest we become their victims, and indeed we need to prevent these actions as much as possible for the sake of others who might be injured by them.  Inherent in that response, though, is the presumption that no one is “really” harmed by public displays of nudity, that those who object are simply being prudish, Victorian, censorial, trying to run the lives of others by requiring them to wear clothing and conform to public decency standards.  The point can be argued.  Those who oppose public nudity believe that there is harm, that for example children should be shielded from seeing naked adults, women should not be forced to look at naked men, and that people exposed to such sights may genuinely be harmed, suffering psychological injury of some type.  It is not a harmless nor a victimless crime.  If it were, it would never have been illegal in the first place–someone thought it was injurious to someone, so laws were passed to prevent it.

You might object that our prudish ancestors had a lot of misguided notions about right and wrong and about conduct that was deemed harmful to others, and that in our enlightened age we can dispense with such nonsense.  It is a point that can be debated–but the fact that it can be debated means that there is at least some merit to the claim that there is real harm; and if there is a basis for a claim of real harm, there is at least potentially reason to make such conduct unlawful.  That in turn pushes us into the quandary:  at what point does harmful conduct become protected self-expression?  If such nudity is in fact harmful to at least some ordinary people, then it ought to be as illegal as robbing banks and bombing buildings, and breaking the law should not be legal merely because it is self-expression.  If it is not harmful to anyone but perhaps a few overly sensitive individuals, then it ought not be illegal and we should find less intrusive means of protecting those weaker citizens who might be impacted by it.

Certainly there is a place for civil disobedience in self-expression, for violating laws in order to make a point.  As we previously noted, the Supreme Court has ruled that burning a cross in the yard of a black family is indeed protected speech, but the perpetrators might still be convicted of arson, trespass, and disorderly conduct.  The individual who chooses civil disobedience as a mode of protest is inherently agreeing to accept the lawful penalty for breaking the law, as part of his choice.  Henry David Thoreau spent a night in jail for refusing to pay a tax that supported the continuation of slavery; he understood that his disobedience to the law meant that he would be imprisoned, and took that as part of his protest.  It is not unreasonable to conclude that Mglej is permitted to make his statement, but that he still must stand trial for violating the law in doing so, just as any protesting bomber would.  That, though, does not seem to be what the courts are saying, and what they are saying seems to be that this particular law does not matter because violating it does not hurt anyone.  We are going to have to settle that issue, one way or the other, and decide whether public nudity should be forbidden or permitted.

Zymurgy’s Law of Evolving Dynamic Systems states, “If you open a can of worms, the only way to re-can them is to use a bigger can.”  We’ve got one of those here, for certain.

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Law and Politics

#52: The X-Files Sexism Debate

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This is mark Joseph “young” blog entry #52, on the subject of The X-Files Sexism Debate.

A few days ago I published mark Joseph “young” web log post #49:  Duchovny, Anderson, Sexism, and the Free Market.  It created quite a stir on an IMDB thread where I had announced it, and it seemed that I should provide some kind of response–but the sheer volume of the posts there (which has undoubtedly grown since I wrote this) made it difficult to provide a comprehensive and orderly reply there, so I am writing another post here to address it.

Early in my writing career I learned two important truths that all aspiring writers need to grasp.

First, you are much more likely to hear from those who disagree with you or do not like what you are writing than from those who agree.  As long as you are “preaching to the choir” the choir will nod quietly and let you speak uninterrupted.  Get a few objectors in your audience, and you will hear the objections.  This is good, really.  Those negative responses are valuable.  Some of them are valuable because they give you insight into opposing views; others are valuable because they clearly misunderstood what you were saying, and so may indicate that you need to communicate your points better.  It may be that both of these benefits acrue to me from the comments posted, and for this I am grateful.  Thank you.

Second, there will always be people who will criticize what you wrote without having read it.  They will base their opinion on a title, or a comment from another reader, or their expectations of what you are likely to have said based on such information as they have obtained about you.  My advice is to ignore these people.  Gradually others will realize what their opinions are worth, and arguing with them will not help your position in the least–they do not know and do not care what you are saying, only what they have already concluded regarding what they think you meant.

img0052Actors

The objections began with someone self-identified as alphabase17, who seemed to think that by asserting that the action of the producers was not sexist I was denying the existence of sexism in the world.  Perhaps I was unclear.  My point was actually that the sexism that was reflected in the situation was actually “in the world”, not in the producers.  Assuming arguendo that the facts are as they have been presented (more on that in a moment), the reason male actors are offered more than female actors is not because Hollywood producers are prejudiced, but because viewers are.  Both men and women want more to see male leads in their films and television shows, and so Hollywood produces more shows with male leads.  Over the decades as shows with female leads became more popular, more such shows were produced–but it is ratings that drive television, and the decision concerning what to pay an actor is ultimately a bottom-line decision:  will having this actor sell enough soap to pay that salary and still turn a profit?

Our poster alphabase17 asserts that we know the facts, but when those facts are stated they are the same incomplete facts I included in my article:  We know that at one point Anderson was offered half the salary that Duchovny was being paid.  We do not know what Duchovny was initially offered, and we do know that after negotiations were complete Anderson was being paid the same amount as Duchovny.  The way these negotiations work, of course, is that the producers approach the actor’s agent and say we’d like to have your client in our show and are offering X amount; the agent then says X is not enough, we want Z; the producers then say Z is too much, what about we settle at Y?  Eventually they agree on a number that is usually more than the original offer and less than the original response.  Our problem is that for Duchovny, we don’t know “X”, “Y”, or “Z”; for Anderson, we don’t know “X”, “Y”, or “Z” but we do know that her “X” is half of Duchovny’s “Y”, and her “Y” is the same as his.

Let’s be hypothetical, and extrapolate some thinking.  The numbers I’m using are intentionally unrealistic, for illustrative purposes.

    We’d like to launch a new X-Files.  We want Duchovny.  We can do the series without him, but we’d have to rethink it–whether to make it a reboot with a younger actor playing Mulder (like the 2009 Star Trek), or a next generation with a new lead agent taking Mulder’s job (like Star Trek:  The Next Generation), but we’ll take a hit–the show will be more popular if we have Duchovny as Mulder.  Let’s offer him a thousand an episode and see what his agent says.

    So the agent says no, make it ten thousand, and they dicker, and agree on five thousand.  Now they move to the next step.  If they didn’t have Duchovny, they probably wouldn’t want Anderson at all–if they’re replacing Mulder with a younger version, they’ll want a younger Scully, and if they’re moving to the next generation they won’t want Scully at all.

    Now that we have Duchovny for Mulder, we’ll want Anderson for Scully.  We can’t easily have a new actress play Scully, but we could replace Mulder’s partner with a new, younger, agent.  We’d rather have Anderson, but we have options.  Let’s offer Anderson twenty-five hundred, and see where that puts us.

    The agent thinks that’s a solid offer, but it’s his job to negotiate, so he inquires to find out what they’re paying Duchovny, and when he sees the five thousand figure he says, no, you’re going to pay Anderson as much.  They agree.

    Note that if the producers offered Anderson up front what they were paying Duchovny, her agent would reasonably have thought they were more desperate to get her than they were, and would have asked for more; then they would be in the position that Duchovny’s agent would insist that Anderson can’t be paid more than Duchovny, and the entire negotiation process would be in turmoil.  In a sense, they have to offer Anderson less than they’re paying Duchovny.  However, note in this hypothetical reconstruction, their initial offer to Anderson was greater than that to Duchovny, even though it was only half what they were paying him.  Note, too, that the producers expected to pay more than their initial offer.  Initial offers are almost always low-ball for that reason, and a low offer to Anderson meant Anderson’s agent could earn his commission by getting her more without having to demand that she be paid more than Duchovny.

No, we don’t know that this is an accurate reconstruction of the negotiations; the numbers are certainly not accurate.  However, the point that alphabase17 missed is that this is a plausible reconstruction precisely because we do not know what Duchovny was offered before he negotiated the agreed pay.  Comparing agreed pay to agreed pay, we find they are equal.  Comparing an initial offer to one against a final agreed salary of the other tells us nothing, because we do not have the initial offer to the one.  We can be pretty certain that whatever the number is for which Duchovny’s agent settled, it was more than the initial offer.

alphabase17 makes a valid point with this:

As to audience preferences, you offered no data to support the claim that “more viewers are more willing to spend more money to see male stars.”

I admit that to some degree my argument is circular, but it is not entirely so.  Television producers spend a lot of money trying to determine what viewers will watch.  There are people trying to sell them program ideas of all kinds, starring men, women, children, aliens, animals, and who knows what else.  They do audience reactions, surveys, ratings of what people actually do watch, sponsor interest, and much more, and they attempt to pick shows that will attract viewers–and if those shows fail to attract viewers competitively, they get cancelled.  The facts that more shows have male stars and that male actors get paid more than females are strong indicators that all this analysis points to viewer preference for male leads.  It has never been exclusively true–Lucille Ball was able to hold audiences in the fifties and sixties, Star Trek did a series with the wonderful Kate Mulgrew in the captain’s chair (I did not enjoy the series, but she was good), Cagney and Lacey held viewers to a police drama starring female detectives, and there have been many others–but even now more male-star series succeed than female-star series, and producers put their money where the probabilities favor success.

Maybe it’s wrong, but I think that in law it would be said that I’ve got a rebuttable presumption:  there is enough evidence that the statement is true that to contradict it would require proof.

I want to thank waslah for his contribution.  Mish4 (who specifically chose to criticize without reading the article) had said

Why I always expecting the best from a man when they always erase sexism and dismiss women’s serious complains (sic)?

waslah answered

…this comment is kind of sexist in it’s own right. It seems to suggest that all men are misogynists…and that’s a bunch of man hating, misandrist bullcrap.
(Ellipsis original)

waslah is correct, but he misses a critical point about progressivist philosophy:  for some reason, it is only discrimatory if the target is a “protected class”.  You can make prejudicial comments about straight white men without any fear of retribution, but the assumption is that any negative statement made about a woman, or a black, or a homosexual, is inherently discriminatory.  We see this even with Michelle Obama, who assumes that a short elderly white woman asking her, a tall black woman, to reach something on the top shelf in a Target department store reflects the white woman’s prejudice toward blacks, not a recognition of the advantage of height.  If I say that statistically women have less upper body strength than men (anatomically demonstrable) I’m being mysogynistic, because it doesn’t matter that it’s true, only that it can be taken as a negative statement about women (or a positive statement about men, which comes to the same thing); but if a woman says that all men are misogynists, even though that is demonstrably false (whether or not it applies to me specifically), that is not considered sexist because it is not a negative statement about women (or gays).  No, it does not make any sense, but it is the way the progressivists regard the matter.  It has something to do with the fact that our ancestors mistreated these groups, and so we, their descendants, must bear similar mistreatment.

Returning to alphabase17:

…I commented upon it [the Duchovny/Anderson pay discrepancy] on three websites and got a lot of ironic, belittling, condescending comments from men, and those champions of intellect claimed that of course the male deserves to be paid more than the female and that I know nothing about show business and that I must be a vile feminist and that people like me should be ashamed for finding sexism where there is none.

I certainly apologize if I came across that way.  There is nothing in what I said that I intended as a matter of what anyone “deserves”.  That’s a bit like saying that apples “deserve” to cost more than oranges because apples taste better, or are healthier for you, or something like that.  If apples cost more than oranges, it’s because the demand exceeds the supply.  If actors are paid more than actresses, it is because audiences want actors more than they want actresses.  I did not say that there was no sexism involved; I said that the sexism was in the audience, the culture generally, not in the bean counters trying to get as much as they can for the smallest possible expenditure.  They tried to lowball Anderson.  They probably tried to lowball Duchovny first, and they’ve undoubtedly had to negotiate with a lot of people, such as writers and directors, concerning how much everyone will be paid for this project.  Actors are not paid based on how hard they work; they’re paid based on how much audience they draw.

Pizza restaurants buy their ingredients and sell their pizzas.  As one chain likes to remind us, better ingredients make better pizza–but also more expensive pizza.  There are chains that never tell us they make good pizza, they tell us that they make it cheap.  A decision is being made by each restaurant, is it worth the extra money to buy the better cheese, the fresher spices, the more expensive tomatoes?  Will we be able to sell the pizza for enough more to cover the extra cost of making it, or will we make more money by making the cheaper pizza?  From the perspective of the television producers, actors aren’t employees paid for their work, they’re ingredients in a product, commodities bought and sold.  The question is, how cheaply can I buy this actor, and what’s the return on my investment?  Any sexism that goes into that is the sexism of, “What will the audience pay to see this man in the project, as opposed to that woman?”  It is an assessment of the attitudes of the consumers, finding those often to be sexist.

Many of the things I have said here have been said by others in the thread at IMDB; I have been working on this response for several days, and decided not to remove such points.  I will finish with a quote from nrkist2424, from what was the last post on the thread when I finished this.  It was a point I was considering making, but I had no numbers to support it.

[Gillian Anderson]’s pay outweighs the combined pay for all the returning character actors.  Are you concerned about that?

Indeed, if it really were about “equal pay for equal work”, there is a tremendous amount of disparity there.  I read a quote from an actor who said they paid him a lot of money to stand in the rain and drink coffee; the acting he did for free.  The lead actors do not work much harder than all the others on the set; they aren’t getting paid based on their work.  Their performances are being purchased according to an agreed price based on the resale value of those performances.

And in the end, Gillian Anderson was paid exactly the same thing as David Duchnovny, because the studio agreed that she was worth it when she asked.  That’s how negotiation works.

Again, I extend my thanks to all who read the previous article and provided feedback.  Your input has not gone unnoticed.

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Bible and Theology, Law and Politics, Logic and Reasoning

#51: In Memoriam on Groundhog Day

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This is mark Joseph “young” blog entry #51, on the subject of In Memoriam on Groundhog Day.

My father died a few days ago, at noon on January 27th, 2016.  There will be memorial visitation on Saturday, February 13th, from one to four in the afternoon at the Van Emburgh-Sneider-Pernice Funeral Home on Darlington Ave in Ramsey (New Jersey) near the home he has shared with my mother since I was twelve.  Before that we lived in Scotch Plains, and in Freeport, Long Island.  He came from Sardis, Mississippi, by way of an Electrical Engineering degree from Georgia Tech.  I will always remember him working decades for Western Union, but it had been decades since he was there and he had held a number of other jobs since.  He did not speak much of his education or his work, but I gather he had completed a masters at Stevens Institute of Technology, and worked sporadically toward a doctorate.  He held patents in focusing microwaves, and headed engineering in Western Union’s Data Services offshoot in the late 60’s.  He was the only person I knew who had worked in assembly language.

He was Cornelius Bryant Young, Jr.  Technically, he was the third, but his grandfather had died while his father was still young, and his father married old, so my granddad took “senior” and made him “junior” (although they never, as far as I know, called him that).  Since his grandfather was “Cornelius” his father was always “Bryant”, and he wound up with “C.B.”, although it was often reduced to “Seeb”, which is what my mother generally called him.  He hated nicknames–I never understood why, and as “Mark” always wished that there was a more familiar form distinguished as “my friends call me”.  (I might then have felt that I had friends.)  My mother wanted to name one of us Cornelius Bryant Young IV and call him Neil, and my father always said, “If you want to call him Neil, name him Neil.”  My little brother is Neil Bryant Young.  My wife also wanted to name a child Cornelius Bryant Young IV and call him Cory, but my father said–well, you know what he said.  My second son is Kyler Cornelius Bryant Young, and my third has Cory as a middle name.

I will remember many of the wonderful things he said over the years.  They come to mind particularly because he often quipped about today–Groundhog Day–saying “If the groundhog sees his shadow, we will have six more weeks of winter, but if he doesn’t, it will be a month and a half.”

Cornelius B. Young, Jr., in 2015 at his brother-in-law's birthday party.
Cornelius B. Young, Jr., in 2015 at his brother-in-law’s birthday party.

He gave the name Young’s Theorem to a quip he created and put on signs in a working lab he headed before I was born.  People working on various projects would find that they did not have the particular piece of equipment they needed, so would substitute something similar–“not the same, but not really different”–and then be surprised at the results.  My father’s sign read, “Things that are not the same are different.”

It was from him that I first heard Murphy’s Law, and he delighted in collecting such witicisms.  He gave me (appropriately, given the recent reaction to my article a few days ago on the X-Files sexism flap), “I know that you believe that you understand what you think I said, but I am not certain you realize that what you heard is not what I meant.”  I was still in Cub Scouts, having trouble working on a Pinewood Derby model car, when he said, with a wonderfully instructive facetiousness, “If you cut it too short you can always stretch it, but what can you do if you cut it too long?”

He was the most patient man I ever knew (although once when I said that to my mother, she told me to remember that he lost his temper at me more than once).  I only heard him swear once in my life, in a famous story of our effort to navigate Skinner’s Falls on the Delaware River when it was several feet above flood stage.  He remained constantly calmly rational–my model of unemotive rationality long before Spock appeared.  It has impacted me significantly, as I, too, am generally not effusive in my expressions of emotion, regard foul language as an indication of a poor intellect, and choose rational response over impatient reaction.  Yet it had its negative side.  He would often praise my efforts after a success in my school days, such as a band or choral concert, but because he knew that his cool rationalism would not sound sincere he forced an enthusiasm that always sounded less sincere in my ears, and so I never received praise well from him–and in turn I made a point with my own sons not to attempt to sound enthusiastic in my praise.  I can only hope they understood that I was sincere.

He was always there for us when we were in trouble.  I think perhaps we relied too much on him.  I wonder, often, whether his available support caused me to rely less on God in times of trouble, or whether it taught me that a father is always there for you.  I probably called him for help about a tenth as many times as my wife suggested.  I knew I was a disappointment to him in that area, and that that was important to him.  I shall need more help from others in the years ahead, I expect, as he is no longer there.

He was, and in a sense continues to be, the reason for much that is in this web log.  Because of my law school degree (for which he paid a significant portion, and for which he never received an adequate return on his investment) he regaled me with articles, clippings in envelopes and links online, claiming that President Obama was not legitimately elected because he was not a “natural born Citizen” as required by the Constitution.  That led to the composition of my series on The Birther Issue and the addenda on The Birth Certificate, and my title as Newark Political Buzz Examiner.  The law and politics section of my website has been expanded to many times its previous size by those articles, and I still keep an eye on the political news and write about it here sporadically.  One of the last clippings he sent me before he died was an insightful piece on whether Ted Cruz was a “natural born Citizen”, although I had already addressed that.  I have not checked my e-mail since before his final hospitalization, but expect that I will find something there from him that might require me to respond here.

I miss him.  We rarely talked, and always when we did I felt that I had failed in the ways he had most hoped I would succeed, but I knew he loved me despite his cool exterior, and I know that my life will be a lot harder and a little lonelier without him.

He was a Southern Baptist in Mississippi, but had settled into the (calmer and less conservative) American Baptist Convention churches by the time I was born.  He often expressed doubts and raised questions about Christian faith, and I wanted him to read the draft of my hopefully forthcoming book Why I Believe (tentative title).  I don’t know whether he expressed those to me because of my degrees in Biblical Studies, and I never could be certain exactly about his faith in Christ, but I have good reason to hope that he has had those doubts resolved and is in the presence of our Lord even now.

Dad, if you get this message, my long-remembered college friend Steve Freed established the rendezvous location for us and I promised to meet him there, along with everyone else:  East Side, Center Gate.  I hope to see you there in a few short years.

With tears on my face,

    I love you, Dad.

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Law and Politics

#49: Duchovny, Anderson, Sexism, and the Free Market

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This is mark Joseph “young” blog entry #49, on the subject of Duchovny, Anderson, Sexism, and the Free Market.

The scuttlebutt in the entertainment industry at the moment is that for the new X-Files revival, actress Gillian Anderson, who plays scientist/agent Dana Scully, was offered half the pay that was offered to actor David Duchovny, who plays agent Fox Mulder.  The outrage arises, that an actress (I’m sorry–“female actor”) would be paid only half as much as an actor (that is, a male actor) for the same work.  It screams that the wage gap is still a real issue, even in mostly liberal Hollywood.

No one can argue that Anderson isn’t every bit as good an actor as Duchovny.  She has more awards and more nominations, even in the “big” ones–Duchovny has two Golden Globes (the second in 2008 for Californication) to Anderson’s one, but she also has a Prime Time Emmy and a Screen Actors Guild (SAG) award.  Even supposing that the competition is stiffer for the male awards than the female ones, her credentials are impressive.

Yet in all the hullaballoo a few points are being overlooked.  So, what’s the real issue?

img0049XFiles

First, let’s be clear:  In the new revival X-Files miniseries Gillian Anderson is being paid the same amount as David Duchovny.  The complaint is that when they contacted her initially they offered her considerably less than they had agreed to pay him.  Of course, they did not contact her, and they did not contact him–they contacted her agent and his agent, and made offers, which the agents then negotiated to an agreed salary.  Further, we are not privy to any of this negotiation.  We do not know any of the numbers.  It might be that they offered Duchovny a half a million per episode and then settled for a million per episode, and then made the same half million per episode offer to Anderson and negotiated to the same million dollar mark.  The numbers might be much smaller than that; they might be larger.  No one is talking numbers, and no one is talking about the negotiation process.  However, clearly there was a negotiation process, because Anderson’s complaint was that they offered her half of what they were paying Duchovny, but she does not know what they initially offered Duchovny and she does know that her agent negotiated her the same pay before any filming was done.  Maybe that’s not the case; maybe they really did offer Duchovny twice what they offered Anderson.  Neither we nor she know that.

There is, though, a more fundamental issue here.

Star Trek:  The Next Generation was one of the great “ensemble dramas” of the eighties.  Hill Street Blues, L. A. Law, Dallas, and a number of others dotted primetime.  One of the things that distinguished this type of show from those of the sixties was that there was not really a “star”–that is, the original Star Trek was a vehicle starring William Shatner as Captain Jim Kirk, with Leonard Nimoy’s Spock and the other characters all in supporting roles.  Even when a particular episode was primarily about Spock, such as Amok Time, Kirk was the hero.  By contrast, in Next Generation there were entire episodes in which Patrick Stewart’s Captain Jean-Luc Picard was not on screen at all.  Yet when the first film was made, it was reported that Patrick Stewart was paid twelve million dollars to appear, and Brent Spiner (Commander Data) eight million, the two together making near as much as the other major members of the cast combined.  Sure, they had big roles in that film–but we don’t know to what degree they got paid more for the bigger roles versus were given the bigger roles because they were costing the studio more.  The latter is the more likely.  Studios negotiate with actors (through their agents) individually, and from the studio’s side the question is whether having this actor is worth the money in the sense that more people are likely to buy tickets if he is in the show than if he is not.  Presumably Paramount concluded that Michael Dorn (Lieutenant Worf) could be written out of the script if he wanted more than whatever they paid him, and Dorn agreed that he would rather work for that lesser amount than be dropped from the movie.  Picard and Data were vital characters; Riker, Crusher, Troi, La Forge, and others not so much.

So if we assume that 20th Century Fox actually did initially offer Duchovny more than they offered Anderson, the obvious conclusion is that they thought Duchovny was worth more to the show, or would demand more to be on it.  Further, there is evidence to support such a conclusion.  Duchovny had a starring role in the popular pay-cable series Californication for seven years, and since then has the lead in the police drama Aquarius.  Anderson has had a number of critically acclaimed roles–the National Theatre’s A Streetcar Named Desire, Great Expectations, Bleak House–but no leading roles in something primarily popular.  As important as she is to the X-Files franchise and as highly praised for her other work, her name does not sell as many tickets as his does.  The producers do not have the financial incentive to pay her as much, because they would not necessarily expect–or get–the same return on their investment.

Arguably, Duchovny has gotten popular leading roles and Anderson has been working in less prominent jobs because Hollywood favors leading roles for men.  Yes, it does–but not because Hollywood producers prefer men in leading roles.  It’s because of audience preferences.

Geena Davis played a powerfully compelling action hero in The Long Kiss Goodnight, and Samuel Jackson as the sidekick was every bit as entertaining in it as he was in Die Hard 3 alongside Bruce Willis.  Willis was the actor who made yet another sequel, because men prefer to see men in the action hero roles.  Meanwhile, women prefer hearthrob men in their romantic leads, from Rudolph Valentino to Matthew McConaughey.  The prejudices are not with the producers–they will attempt anything they believe will make money, without regard for names or quality or race or gender.  The track record, though, says that male leads draw bigger audiences, and so make more money, than female leads.  There are some women who buck the trend, get good roles and make them work, but most big roles go to men because that’s what audiences pay to see.

So there is indeed sexism in the video entertainment industry, but it’s not in the producers, not in the people who make the movies and television shows.  They pay for what they perceive themselves to be getting.  What they are getting is viewers, ticket purchasers, and what they are selling is what those viewers want to see.  If most of the world wants V-Neck sweaters, most clothing manufacturers are going to invest in V-Necks and avoid Turtlenecks.  When fast food purchasers move more toward healthy food, McDonalds shifts its emphasis away from burgers into chicken, salads, wraps, and yogurt.  Male actors get more money, in the main, because more viewers are more willing to spend more money to see them.  The sexism Gillian Anderson faces is not that of the people making The X-Files.  It’s the sexism of the people watching, who would pay more money to see David Duchovny than to see her.

Sure, there are people who will scream to high heaven that Gillian Anderson is the important person in the show.  Never mind that she was originally hired to be the sidekick to Duchovny’s starring role, instructed to stand slightly behind him so he would be prominent in most shots in the first season, she became the indispensible equal, for some even superior, partner.  Yet the numbers say that you, the viewers aggregately, pay more to see Duchovny than to see Anderson, even if some of you consider her the real star.  The producers are only trying to provide the product that will draw the most customers, the biggest audience, at the lowest total outlay.  As far as they are concerned, the fact that they might be paying a man more than a woman has nothing to do with gender and everything to do with spreadsheets.  It is, ultimately, what viewers are willing to buy that pays those salaries.  That’s where the prejudice is found.

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Law and Politics

#48: Inequities in the Justice System

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This is mark Joseph “young” blog entry #48, on the subject of Inequities in the Justice System.

I have a story that intrigues me on so many levels I have to tell it.  It is, as they say, a true story–that is, I have my information largely from the first-hand account of one of the key persons involved, but for parts of it that I on the one hand witnessed myself or on the other hand deduced.  I shall attempt to keep them clear.  It is a case of an injustice that was, in large part, remedied, but the sense of injustice looms over it nonetheless.

img0048Court

The story begins with a young man in his early twenties out for a walk on a late summer afternoon.  He happened to pass what must be the main intersection in the sprawling sparsely populated town, as it is the only traffic signal, and there are two gas stations on the corner, owned by the same near-eastern immigrant family, the only gas stations within the town.

He was at least three blocks from there, around a corner out of sight, when two police cruisers arrived behind him.  The young man has been detained by police before, largely because he has friends who have been in trouble with the law on several occasions, although he himself has never been charged with anything.  They asked him to identify himself, and he gave his name but was reluctant to tell more.  After some discussion he gave his address, and was told he was not permitted to leave until they had identified him.  They then insisted on patting him down, then handcuffed him and informed him that he was under arrest.

I have to interject here.  The police are indeed permitted to stop a person if they have a reasonable suspicion of possible involvement in a crime, and if we stretch that–as you will see–they might arguably have had that here.  The purpose of such a check is to ensure that the person with whom they are speaking is not able abruptly to produce a weapon; the rule exists to protect the police.  It’s called a “Terry Stop” after the case which confirmed that it was legitimate.

On the other hand, an arrest requires “probable cause”.  At this point all the police have–well, we’re getting ahead of the story.

They emptied his pockets into a plastic bag, and put him in the back of one of the patrol cars.  The officer in that car then produced a bag of marijuana from another satchel and placed it in the bag with his possessions.  The young man objected, loudly, that he had never seen that bag in his life, but the police officer claimed that an attendant at the gas station had seen him stop and hide the bag at the control box at the traffic light on that corner.  He was told he was under arrest for possession of marijuana.  The officer then drove to that gas station, and once in the parking lot read the young man his Miranda rights while this witness, a near eastern immigrant, observed.

Maybe you have noticed the three problems with the “identification” here.  I did immediately, but then, I hit these problems in law school.  Still, I cannot believe that the police procedure here was so incredibly bad.  One of these problems might have been excusable, even unavoidable, but there was no reason for this kind of work unless they expected to strongarm the suspect into a confession.

The first problem can be called the problem of cross-cultural identification.  You’ve probably heard the rubric that all Blacks look alike, and while that’s not at all true it is true that Whites and Asians have trouble recognizing the distinguishing features of Blacks, and that the same is true for most cross-racial or cross-cultural observers.  If you did not grow up among people of a particular racial/ethnic group, the specific features that distinguish one from another are often difficult to spot.

I often recall the story of The Five Chinese Brothers.  In brief, one of five brothers was condemned to death, but he and each of his brothers had a particular invulnerability.  Each time the emperor declared how the boy was to be executed, he would ask to say goodbye to his parents, and be replaced by the brother who was invulnerable to that form of execution.  The conceit is that no one can tell the difference between one Chinaman and another, so if they were also brothers not even the Emperor could tell them apart–which tells me that it is not a Chinese story at all, but a European story about European perceptions of the Chinese.  Had it been a Chinese story, it would have been The Five Swedish Brothers–all tall, light hair, light skin, light eyes, they look exactly alike, because the characteristics by which Chinese distinguish each other are not those by which Europeans distinguish each other.  That’s the problem of cross-cultural identification:  our near-eastern immigrant gas station attendant would have trouble distinguishing one tall white American boy from another.  The identification is already suspect.

However, even if that were not so, there is a much more significant problem.  You’ve probably noticed that on television shows when the police want a witness to identify a suspect they have a lineup, or if not a lineup a photospread.  They don’t usually present the suspect to the witness and say, “Is this the guy?”  That’s because those kinds of identifications are inherently prejudicial–and this one is extremely so.  We have a suspect who fits the description “young white male” in a town where that describes a significant portion of the adult population.  Our young white male has been brought to the witness handcuffed in the back of a police car, and in the presence of the witness the arresting officer makes a point of Mirandizing the suspect, clearly placing him under arrest and signalling, “This guy is a criminal.”  The witness then has in essence been told, “Identify this guy,” and even if we assume that the witness wants to be honest and has been honest to this point, we just played a game with his memory.  The police told the witness who to remember; human memory is a fluid and flexible thing in most people, and by this act the police helped the witness solidify an image that matched the guy they caught.

It should also be noted that if the story the officers told is true, the witness must have called to report having seen someone hiding something at the traffic light control box perhaps fifty feet away, the police must have arrived and searched the area and found the bag, then the witness must have told them in which direction the person left who had placed it there.  By that time, anyone who might have been in the area would have walked out of sight, and indeed the suspect was not in sight–which means that the witness could not point to him, and the police could not see him when they arrived at the scene.  They have no idea who they are seeking.  Anyone they find who roughly fits the description is likely to be identified by the witness as the person he saw.  He made no claim of having seen him up close, or having recognized him from previous acquaintance.  He had not kept his eye on the suspect, and could not be certain the person he saw didn’t enter one of the houses along the street.  About the only information the witness gave the police was young white male, went that direction.  They should have known their identification was going to be problematic.

For a legitimate witness identification, they needed to take the suspect to the station and take the witness there separately, keeping them from seeing each other until the suspect was mixed with several other persons who also roughly fit the description, and then determining whether the witness could choose the suspect from among the group without any assistance or prompting.  That would not solve all the problems here, but it would be a much better case for the police than what they did.

They also should have known that they had insufficient basis for probable cause.  A young man walking quiet sub-suburban streets in a rural town on a late August afternoon is not suspicious.  Being a young white male is not suspicious.  Nothing was found on the suspect to connect him to this or any other crime.  The police don’t like it when you avoid answering their questions, but even if it could be argued that the refusal to answer questions implies guilt, it is illegal to draw that conclusion:  the exercise of the Constitutional right to remain silent cannot be taken as evidence of guilt of any crime, and therefore cannot support probable cause of such guilt.  The police had sufficient cause for the Terry Stop–it requires an articulable suspicion, and it is reasonable to argue that a young white male walking somewhere within several blocks of the site of an alleged crime allegedly committed by a young white male afoot is at least vaguely suspect.  Having questioned him and learning nothing that connected him more closely to the crime, they did not have probable cause for an arrest.

The police took him to the station and held him for a while, and then began questioning him.  They intimated that they had surveillance video of him planting something there, and he responded that he knew they did not because he never did so–he was not even really cognizant of the fact that there was an electrical control box there.  They attempted to get him to explain how he thought the marijuana got there, as if it were his problem and they hoped in solving it he would confess something they could use against him.  They then gave him a summons to appear in court to answer charges, and released him.

He went to court and applied for a public defender.  His parents had prepared him well–within twenty-four hours of the events he wrote down everything that happened, so there would be a clear written statement, and he gave a copy of this to his attorney.  He also had been made aware of the problems already mentioned regarding witness identifications, and also that in New Jersey the governor had recently required that all police cars be equipped with dash cameras, and a Superior Court Judge had ruled that all those recordings were public records, so his attorney subpoenaed these.  It took six months for the State of New Jersey to realize that on those facts they had no case, and dismiss the charges.  The public defender application fee is not refundable.

No one apologized for the wrongful arrest.  In fact, in an odd turn, as the judge dismissed the case he told the defendant to be sure not to be arrested on that charge again.  It was an entirely inappropriate thing to say under the circumstances, although the judge probably was not fully aware of the circumstances.  After all, the young man had been charged simply because he was the nearest person out walking somewhere near the scene of the crime, and he could not have anticipated that there might have been such a crime.  If we assume the integrity of everyone involved, and that these were the honest mistakes of a couple of police officers who found the contraband and believed they had the right person who would probably confess and plead guilty (and not that they were trying to create a case from nothing), there was no way he–or indeed anyone–could have avoided being so charged under these circumstances, except perhaps by staying at home at all times, or at least never taking a walk in public.

In all of this I want to mention one point that you probably did not notice, although it was mentioned.  The defendant was not a young black male; he was a young white male.  It may or may not be true that young black males are unfairly singled out by police, but it might not be because they are black so much as that they are young and male.  It is difficult to know how to react to that; young males disproportionately commit crimes, and so it becomes proportionate to suspect them disproportionately.  Yet if one is more likely to be arrested and charged because one is a young man, the claims that the disproportionate arrests of young black men demonstrate systemic racism are seriously weakened.  Such racism may still exist in some places, but racial oversensitivity also plays a role in causing us to perceive racism where the real problems are agism, sexism, and classism.  If there is a real disproportionate correlation between criminal activities and factors such as age, gender, race, and social class, it can hardly be said to be discriminatory to make disproportionate arrests.  If such correlations cause police to be careless in their procedures, that needs to be corrected–but it does not make it a matter of racism.

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Elections, Law and Politics

#42: Politicians and Statemen

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This is mark Joseph “young” blog entry #42, on the subject of Politicians and Statemen.

19th century American James Freeman Clarke left some memorable and sometimes Tweetable quotes behind.  Perhaps the most famous of these reads

A politician thinks of the next election. A statesman, of the next generation.

  He was apparently not a politician, being a clergyman, educator, and activist reformer.  He may have been a statesman.  However, it is clear that he approved statesmen over politicians.

img0042Clarke

I read something recently that brought the quote back to mind, causing me to wonder who in the nation today are the statesmen and who the mere politicians.  Of course, that’s not simple to assess.  If we look at the Democrats, we see a lot of policies that seem to be aimed at pleasing voters–free or low-cost healthcare, food and welfare programs, as well as policies to protect minority benefits.  It has been argued, and not entirely unreasonably, that this party is attempting to buy votes with government money and other generosity.  On the other hand, despite the fact that the Republicans pioneered such policies as protecting the rights of blacks and protecting the environment, the Democrats have managed to make those their issues, becoming the “progressive party” after for decades being the party of oppression with people like George Wallace spearheading the fight against civil rights.  Democrats are the ones who push for taking steps against climate change (although Republican Arnold Schwarzenegger has spoken on that subject as well), insisting that present economic hardships, whatever they might be, are small compared to a potential future crisis.

Of course, many argue that the Republicans are using government money to buy the votes–and the pockets–of big business and Wall Street.  Forget that Democratic frontrunner Hillary Clinton has close ties to the financial markets and backers from that group, it is maintained that the Republican party is bought and paid for by big business.  On the other hand, the Republican party coalition (we talked much about how coalition government works at the party level in the United States) contains several groups that focus on principles:  the pro-life coalition fighting against the rampant killing of the unborn, the gun lobby focusing on Second Amendment rights, Christian groups upset about First Amendment protections in the changing moral landscape, Originalists pressing for the America of our ancestors.  These are issues focused on the future and the betterment of the nation.  You might not agree about them, but they are the thoughts of statesmen looking to improve the nation, not of politicians seeking to buy votes.

Of course, both parties are packed with politicians.  There is a degree to which they have chosen the party with which they are most in agreement, but also a degree to which they mold their own messages to appeal to the voters of that party.  Politicians are always thinking of the next election; the next generation is a distant second in most cases.

However, what intrigued me about this article is not the politicians but the voters.  In brief, correspondents for a news organization swapped jobs for a week–the one covering the Republicans tackling the Democrats, the one working the Democrats turning to the Republicans.  They both noticed the same difference in the voters.

Republican voters frequently talked about issues.  They were invested in questions like originalism, abortion, homosexual marriage, gun rights, free speech, et cetera.  They wanted to know what candidates were going to do to protect and advance these principles, these policy positions, for the perceived good of the nation.

Democratic voters by and large were concerned about their own needs:  what was the candidate going to do about my welfare check, my medical care, my housing problems.  The Democratic voters were personally invested in putting people in office who would give them what they perceived as their wants and needs.  They were strong-arming their candidates into that supposed position of promising giveaways.  They, in the main, fit the stereotype Republicans have of Democrats, of trading the future of the country for a paycheck.

It seems that whatever we can say about the politicians, among the voters, the Republicans are the statesmen trying to think of the next generation, and the Democrats are the politicians extracting promises for the next election.

This may be too harsh.  After all, it does appear demographically that poorer voters tend to vote Democratic, and if we consider Maslow’s Hierarchy of Needs, we recognize that people who have trouble putting food in their stomachs and a roof over their heads don’t care so much about such esoteric questions as the rights of the unborn or freedom of expression or the right to bear arms.  They care about meeting those fundamental needs.  One of our founding fathers quipped that the democracy would end the moment the voters realized that they could all vote themselves money from the Federal coffers.  That’s been happening for quite a while, but the situation is worsening.  It’s probably also the reason why early voter regulations required that the voter prove he had real property and an education–that he was intelligently invested in the future of the country.  There are problems with that arrangement, certainly, in its tendency to maintain the status quo; but there is also something to be said for its ability to resist the tendency toward candystore giveaway politicking.  The fact that poor people are more interested in what the government is going to do to alleviate their situation and rich people are more interested in what the government is going to do to ensure long term economic and social stability is perfectly logical.  It also suggests that the former breeds politicians and the latter statesmen, at least to the degree of short-term versus long-term economic stability.

Republican politicians might be merely politicians, and there might be statesmen among the Democratic politicians, but if we want the party whose members are most concerned about the longer-term future, it might be the Republicans.  In contrast to the politicking for personal gain among the Democrats, the Republican membership might be the statesmen.

Assuming statesmen are still to be preferred….

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Elections, Law and Politics

#41: Ted Cruz and the Birther Issue

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This is mark Joseph “young” blog entry #41, on the subject of Ted Cruz and the Birther Issue.

The unabashedly liberal Huffington Post has reported that a Texas attorney has filed suit against Ted Cruz, claiming that the Republican United States Senator from Texas is not eligible to be President of the United States because he is not a “natural born Citizen” as required by the Constitution.

img0041Cruz

This is ground we covered in detail quite a few years ago; in fact, it was this issue that launched our political writing at The Examiner–only then the object was Barrack Obama.  We have preserved those articles as The Birther Issue elsewhere on this site, and we’ll look at that.

The problem for Cruz is that he was not born in the United States.  People argued whether Barrack Obama was or was not born in the United States, and whether the birth certificate published by the White House asserting a Hawaiian birth was in fact a forgery.  The issue this time is not whether or not he was born in the United States–it is clearly established that he was born in Canada, to a mother who is incontrovertibly a United States citizen, and a Cuban-born father who fled to the United States and became a Canadian citizen a few years after the birth of his son Ted, then became an American citizen just over a decade ago.

Thus the question is whether Ted Cruz is a “natural born” United States citizen as required by the constitution, based on the fact that his mother being a United States citizen gave him U. S. citizenship at the moment of his birth, or whether he is not “natural born”, based on an interpretation of that phrase that requires that the President was actually born in these United States.  It is a perennial issue–before Cruz of course it was raised concerning Obama, but it has also been raised in connection with Mitt Romney (born in Mexico to American parents), John Cain (born to a U. S. military family stationed on the U. S. military base in the Panama Canal Zone), Mitt’s father George Romney (born to U. S. citizen parents in self-imposed exile in Mexico), Barry Goldwater (born in the United States Territory of Arizona before it became a State of the Union), and quite a few others.  In many of these controversies, scholars have asserted that the Supreme Court has never said what the Constitution means by the words “natural born citizen”.

They are only half right.

In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court addressed a citizenship case.  In that case, they cited Dicey’s Digest of the Law of England with approval, quoting that

“Natural-born British subject” means a British subject who has become a British subject at the moment of his birth.

They then quoted from a case which cited Blackstone to the effect that

a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance….

It seems quite evident that Wong Kim Ark asserted that “natural born citizen” of the United States meant no more and no less than that at the moment of birth the individual was a United States Citizen–something that clearly applied to Obama, both Romneys, and Cain, at least.  By the standard set forth by Dicey and Blackstone cited by the Supreme Court in Wong Kim Ark, because Mrs. Cruz was a United States Citizen at the time that her son Ted was born, Ted Cruz is a natural born citizen of the United States, and eligible to become President of these United States.

So what’s the problem?  How can anyone say that the Court has not decided this question, if the court has decided it?

The problem is that the court stated that, but did not decide it.  It falls into the category of what is called “dicta”–statements made by the court that are not directly relevant to the decision in the case but express what the court probably would decide about such an issue.  Wong Kim Ark had nothing to do with presidential eligibility.  It was about the California-born son of Chinese citizens refused admission to the country on returning from a visit to foreign relatives abroad because of a California anti-immigration law, and decided only that the child of anyone born in the United States to parents who were legally present in the United States at the time of that birth was a citizen of the United States at the moment of his birth.  The cited passages in Dicey and Blackstone were part of a more general discussion that supported that conclusion, and although they clearly support the conclusion that anyone who was a citizen at the moment of his birth, wherever born, is a natural born citizen, the decision of the case technically only supports its own conclusion, that anyone legally born on United States soil is a United States citizen at that moment.

So technically the critics are right:  the issue has never been “decided” because it has never been raised as such.  However, the reasoning of Wong Kim Ark leads inexorably to the conclusion that people in the position of any of these politicians, including Ted Cruz, are “natural born citizens” under the intended meaning of the Constitution, and eligible to be President of the United States, and there is no reason to imagine that the Supreme Court would decide otherwise given that precedent.

Cruz is right:  the issue which did not matter half a year ago is being raised now because he has become a serious contender for the Republican nomination.  It is not, and should not be regarded, a real issue.

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Bible and Theology, Law and Politics

#36: Ligation Litigation

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This is mark Joseph “young” blog entry #36, on the subject of Ligation Litigation.

Let me begin with ideas that might not seem immediately on-topic.

You are certainly welcome to stay for supper.  You’re in luck–we do not often have a roast, but someone gave us this boneless pork loin, and it’s almost finished roasting…what’s that, you don’t eat pork?  Well, I’m very sorry.  Unfortunately, I roasted the carrots and potatoes and onions in the same pan, so if that’s a problem, I’m not sure what to say.

Maybe I could scrounge something up for my unexpected guest, but really, my extended hospitality is to share what I have, not what I don’t have.

Just relax, we’ll reach the hospital in a few minutes.  What?  Yes, I have morphine.  No, I can’t give you morphine; it would be illegal, for one thing.  A doctor has to say that you should have it.  Of course I care that you’re in pain, but I’m not going to risk my job to give you something that quite possibly you shouldn’t have.

Of course, I could give the morphine–I am certainly physically able to do so–but there are good reasons for me not to do so.

No, I’m not going to go deer hunting with you.  I know it’s legal; I know it’s even considered necessary:  in a world in which we have decimated the predator population we must also kill the prey animals or they will overpopulate and starve themselves.  Kill them if you wish, but please don’t ask me to be part of it.  I don’t really enjoy killing animals, and I do not want to become the kind of person who does.

I’ll have to think about whether I’ll eat your venison, and obviously I know that someone kills the meat I do eat, but it doesn’t have to be me.

Mercy Medical Center in Redding, California
Mercy Medical Center in Redding, California

Rebecca Chamorro, mother of a third child, is suing Mercy Medical Center in Redding, California, a two hundred sixty-seven bed hospital sponsored by the Sisters of Mercy of Auburn.  She claims that the hospital violated her rights by refusing to permit her doctor to perform a tubal ligation while delivering her third child by caesarean section.

The hospital claims that such an operation violates the “ERDs”, that is, the Ethical and Religious Directives for Catholic Health Care Services, a document of health care directives established by the United States Conference of Catholic Bishops.  The document bans abortions; I presume it also bans euthanasia, although I have not read it (being neither Catholic nor employed in a medical facility).  It lists these things as “intrinsically immoral”, and includes on that list direct sterilizations, certain prenatal genetic tests, and most forms of contraception.  The Catholic Church maintains that children are a gift from God, and participation in sexual relations is an open invitation to God to give that gift; therefore refusing the gift or misusing sex for something other than reproduction is an affront to God.

Obviously, you may disagree with the Roman Catholic Church.  Even many Christians of other denominations, including many (but not all) conservative Christians among the Evangelicals, the conservative Lutherans, and the Eastern Orthodox churches, allow many forms of birth control while remaining adamantly opposed to abortions and abortofacients.  That, though, is not the point.  The point is whether a Roman Catholic hospital should be forced to permit the use of its facilities and equipment for procedures it regards immoral.

The plaintiff’s primary argument is that the refusal to perform legal medical procedures is discriminatory.  There is a sense in which it is not–the same restrictions against tubal ligation also apply to vasectomies–but the argument is that pregnancies are unevenly discriminatory (much more of a burden on women than on men) and thus the refusal to assist in their prevention is unevenly discriminatory.  This, though, is founded on the premise that the hospital is a public institution offering a commercial service–and that’s not exactly true.

At one time all, or nearly all, hospitals were run by religious orders, most of them Roman Catholic.  The nursing staff of such hospitals were nuns–volunteers who devoted their lives to the service of others through the church, tending the sick, compensated essentially with room, board, and basic necessities.  Priests served as doctors, in a time when only a few went to university and those who did were doctors, lawyers, or priests, with some overlap.  People supported the hospitals with their gifts; patients were treated based on need.

Certainly the world has changed.  Hospital staff now includes many employees, most of them paid and not all of them Catholic, although many Catholic hospitals are still staffed in part by nuns and other volunteers.  Medicine is overseen by licensed physicians, because laws forbid the practice by those who do not have such licenses.  However, the mission has not changed, nor the motivation:  to help sick people heal.  These are non-profit hospitals, and the church runs them voluntarily to help the sick.

If you complained that I did not make something special for you as an unexpected dinner guest when you did not want to eat my roast pork, I would politely suggest you find somewhere else to eat.  If you complained that I did not give you morphine on the way to the hospital, I would tell you to talk to my lawyer.  If you complained that I was unwilling to go deer hunting with you, I would tell you to go–well, I wouldn’t, because I’m not like that, but it would put a serious damper on our friendship.

The Roman Catholic Church, of its own volition, offers medical care to persons in need.  They offer more charity care than most hospitals, although they welcome paying patients and insurance programs.  However, they are specific about what care they do–and do not–offer.  If you don’t like it, there are other hospitals.  If it is inconvenient for you to travel to a hospital that is willing to provide the services you desire–and note that this is in no sense an emergency situation here, it is not as if the hospital is refusing life-saving treatment to a patient brought in to the emergency room–then it is apparently inconvenient for you to get the elective procedure you desire.  That seems fairly straightforward to me.

I am concerned that any other answer ultimately becomes an imposition on the faith of the Roman Catholic Church, and indeed on other religiously-affiliated medical facilities (and many churches support these).  It is a small step from asserting that the hospital must permit sterilization procedures it find immoral to asserting the same about abortions; and if (or more likely when) it becomes legal, it is a small step beyond that to requiring hospitals to permit euthanasia in their facilities.

If that happens, I am fairly certain the Roman Catholic Church will close its many hospitals and look for some other way to help needy people.  A two hundred sixty-seven bed homeless shelter might be a great help.

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Bible and Theology, Books by the Author, Elections, Games, Law and Politics, Logic and Reasoning, Temporal Anomalies/Time Travel, Time Travel Movies

#34: Happy Old Year

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This is mark Joseph “young” blog entry #34, on the subject of Happy Old Year.

At this time of year, readers are bombarded with “year in review” pieces, part of the media’s need to have news even when there is no news, to make news out of nonsense and trivia–the reason Time Magazine first created its “Man of the Year” issue (the first was Adolph Hitler).  When I was at The Examiner, I began doing something of the same thing, creating indices of articles from the year for readers who missed something or who vaguely remember something.  Quite a bit has been published this year, and it might help to have a bit of a review of it all, as some of you might have missed some of it.  We have articles in quite a few categories.

The web log is of course self-sorting, and you can find articles in its various categories by following the category links, or in subjects by following tag links; still, it will be worth touching on those pieces here, and there are also quite a few “static pages”, that is, regular web pages added to the site, that you might have missed.

At the beginning of the year we were still writing for The Examiner; all of that has been republished here, much of it which was originally done in serialized format consolidated into larger articles.  My reasons for that are explained here on the blog in #8:  Open Letter to the Editors of The Examiner, if you missed them.  It is still hoped that the Patreon campaign will pick up the slack and pay the bills needed to support continuing the efforts here at M. J. Young Net.

img0034MJYNet

Let’s start with the law and politics pieces.  This is a good place to start, because when at the beginning of the year we moved everything from The Examiner, we included a final New Jersey Political Buzz Index Early 2015, with articles on Coalition Government, Broadcasting, Marriage Law Articles, Judiciary, Internet Law, Congress, Discrimination, Election Law, Search and Seizure, Presidential, Health Care, and Insurrection, most subjects covering several articles consolidated with other articles, along with links to earlier indices.  There was also a new main law/politics index page, appropriately Articles on Law and Politics, covering the old and the new, and we added a static page to that, continuing a series on tax we had begun previously, What’s Wrong with the Flat Tax?.

We’ve also had a number of law and politics posts on this blog, including

We also covered New Jersey’s 2015 off-year election with a couple posts, #12:  The 2015 Election, and #15:  The 2015 Election Results.

There were a few web log posts that were on Bible/theology subjects, particularly last week’s #32:  Celebrating Christmas, about why we celebrate, and why this particular day; plus some that were both political and theological, including #3:  Reality versus Experience, #23:  Armageddon and Presidential Politics, and #24:  Religious Liberty and Gay Rights:  A Definitive Problem.

Then there was the time travel material.  This also included some that were originally published at The Examiner and moved here, sometimes consolidated into single pieces.  We started the year with a serialized (and now consolidated) analysis of Predestination, followed by one of Project Almanac.  We also gave a nod to (Some of) The Best Time Travel Comedies and (Some of) The Best Time Travel Thrillers, before moving here.

Once here, we began our temporal insights with a couple of web log posts, the first #6:  Terminator Genisys Quick Temporal Survey, and then #17:  Interstellar Quick Temporal Survey, both thanks to the generosity of readers who provided for us to see these films.  We eventually managed to add a new analysis to the web site, Terminator Genisys, one of the longest and most complicated analyses we have yet done–but we were not done.  Remembering that our original analysis of the first two films in the franchise made some suggestions concerning a future direction for the series, and having commented on the problems with continuing it after the latest installment, we wrote #28:  A Terminator Vision, giving some ideas for a next film.  Then in response to a reply to the analysis, we added #31:  A Genisys Multiverse, explaining why we don’t think a multiverse-type solution resolves the problems of the film.

The site was expanded on another long-neglected front, the Stories from the Verse section:  the directors of Valdron Inc gave me permission to serialize Verse Three, Chapter One:  The First Multiverser Novel; as of today, the first forty-seven of one hundred twenty-six chapters (they’re mostly short chapters) have been published; there is an index which conveniently lists all the chapters from the first to the most recent published in the left column and from the most recent to the first in the right, so that you can begin at the beginning if you have not read it at all, or find where you left off going backwards if you’ve read most of it.  The chapters also link to each other for convenient page turning.

I don’t know whether it makes it more interesting or takes away some of the magic, but I also began running a set of “behind the writings” blog posts to accompany the novel.  These are my recollections of the process that brought the pages to life–where I got some of the ideas, my interactions with the editor and other pre-publication readers,, changes that were made, and how it all came to be.  There are now seven of them in print–

  1. #18:  A Novel Comic Milestone,

  2. #20:  Becoming Novel,
  3. #22:  Getting Into Characters,
  4. #25:  Novel Changes,
  5. #27:  A Novel Continuation,
  6. #30:  Novel Directions,
  7. #33:  Novel Struggles,

–and I expect to publish another tomorrow for the next six chapters.

Looking at the few posts that have not yet fit in one of these categories, whether logic or trivia or something else, one, #29:  Saving the Elite, was really advice for writing a certain kind of story.  Our first post in the blog, #1:  Probabilities and Solitaire, was a bit of a lesson in probabilities in card games, and #26:  The Cream in My Coffee applied physics to how you lighten and sweeten your hot beverages.

So that’s what we’ve been doing this year, or at least, that’s the part that sticks above the water.  We’ve answered questions by e-mail, posted to Facebook (and PInterest and Twitter and LinkedIn and MySpace and Google+ and IMDB and GoodReads and who knows where else), kept the Bible study going, worked on the novels, and tried to keep the home fires burning at the same time.  That’s all important, but somewhat ephemeral–it passes with time faster than that which is published.  Here’s hoping that you’ve benefited in some way from something I wrote this year, and that you’ll continue encouraging me in the year ahead.

Happy old year.

Happy new year.

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