Dumb and Dumberer?

Tonight, ABC will rerun its 20/20 special, “Stupid in America,” which exposes our monopoly school system for what it is: a remarkably dumb — and harmful — idea.

Central planning has been thoroughly discredited in every other field of human exchange over the past half-century. But, for some reason, we still cling to our public school politburos.

Tonight, you can see John Stossel summarizing some of the human and financial costs of our dumbitude.

In Defense of Jury Nullification

Over at my personal blog, I’ve been having a back-and-forth on the issue of jury nullification with an L.A. prosecutor who blogs under the pseudonym “Patterico.” I can certainly understand why a prosecutor would be opposed to jury nullification. Were more Americans aware of their power to nullify — a tool with a rich tradition in the American founding, by the way — prosecutors would have a lot less power.

Patterico’s “gotcha” question on the issue concerns the oath many courts require jurors to take before serving, which affirms that they will uphold the law. Patterico asks supporters of nullification if they’d risk perjury charges by taking that oath and then subverting an unjust law during deliberations.

It’s a difficult question, and one I think people interested in real justice need to reconcile with their own values and priorities. But I also think his question is pretty revealing. It shows how prosecutors and judges have tweaked juror oaths to set perjury traps for would-be nullifiers, thus taking out of play an important check against bad laws, bad judges, and bad prosecutors. I’d like to see a civil liberties group mount a challenge to those oaths.

It seems to me the disagreement between opponents and supporters (like me) of nullification boils down to this: I believe that we have enough bad laws, overly aggressive police officers and prosecutors, and imperfections in the criminal justice system that jury nullification is a needed and justified last defense against overreaches of the state. I think there are a not-insubstantial number of real cases — historically and recently — where real people have been wrongly sent to prison, or sent to prison for far too long, to back this up.

Opponents’ objections can only come down to one of three positions:

  1. They doubt the current system gives rise to a significant number of injustices.
  2. There are a significant number of injustices, but they’re okay with that, in the interest of upholding the law.
  3. There are unjustices, and they are indeed troubled by them, but jury nullification isn’t an appropriate way to prevent injustices from occuring.

I think choice (3) is the least morally objectionable position. But it’s also the least logical. If these outrages really are outrages, and we’re clearly not okay with them, I’m at a loss to see why nullification, with it’s considerable history in this country, wouldn’t be an appropriate remedy. Indeed it seems to be the only remedy.

Remember, to get to this point, we’ve already accepted the premise that there is indeed a significant number of injustices, and that we don’t believe that they’re acceptable. If “changing the laws” were really feasible, then the laws leading to these types of injustices wouldn’t be in place to cause the injustices in the first place. They’d already have been changed, or never passed at all. That, or they wouldn’t have led to the injustices we’ve agreed have happened.

In other words, something clearly isn’t working.

So if you have an unjust law that’s clearly leading to unjust outcomes, what’s the solution if you’re on the jury? Is voting for what you know to be an injustice out of deference to the wisdom of a bunch of politicians really the correct, moral decision?

Put another way, which act is more immoral, upholding a law made by imperfect men, enforced by imperfect men, and that has clearly led to an immoral outcome, or subverting a wrongheaded law the one time you have the chance, and preserving the freedom of a man who doesn’t deserve to go to prison?

Opponents of nullification also really need to answer for what they’d have done had they served on a jury in which the defendant was charged with violating Jim Crow laws, helping smuggle a slave to freedom, exercising his right to free speech in war time, or any number of other clearly immoral laws that have been on the books throughout American history. They need to ask themselves if it’s really possible that, given that history, we should just assume that all laws on the books today ought to be immune from the scrutiny of juries simply by virtue of the fact that they made it through the legislative process. Given our imperfect past, isn’t it a bit naive to think we’re perfect — or even “close enough” to perfect — today?

Keep in mind, too, that upholders of those clearly immoral laws of the past made the same arguments at the time that opponents of jury nullification make today — that even if they conflict with one’s own personal values, those laws should have been respected and upheld by jururs by simple virtue of the fact that they were, after all, the law.

Now, it’s true that many of those laws were eventually repealed or changed. But their later repeal doesn’t account for the fate of the people imprisoned or even executed while they were still on the books. What about them? Wouldn’t it have been better if a jury had assessed and acted on the immorality of those laws before they were repealed? And looking back now, isn’t it a wonderful thing that many juries did?

There is a reason why we’re tried by a jury of our peers and not by a jury of professional experts, trained in meticulously assigning value to evidence. Peers are capable of mercy. They don’t — and shouldn’t — deal solely in cold equations. They can take into consideration and assess more than just the facts of a case. They’re capable of seeing injustice in spite of the law.

And they are the last line of defense against government when government oversteps its bounds.

For more, see Clay S. Conrad’s excellent book on the subject, or his synopsis of the book for Counterpunch.

The Right That Was

Remember FreeRepublic.com? The right-wing web forum for Clinton-hatred, respectable and otherwise? I recently ran across an article, “The Secret FISA Court: Rubber Stamping Our Rights,” that somebody posted on FR back in 2000. (Hat tip: Glenn Greenwald.) The comments are precious:

This is beyond frightening. Thank you for this find.

This does not bode well for continued freedom. Franz Kafka would have judged this too wild to fictionalize. But for us - it’s real.

And my personal favorite:

Any chance of Bush rolling some of this back? It sounds amazing on its face.

Today, when NSA surveillance is in the news, as with the recent decision in ACLU v. NSA [.pdf], you’re far more likely to read this sort of thing over at FR.

Privacy is a false argument and has been for some time. Your insurance company and the credit bureaus have more on you than the feds do and you can do nothing about it. I would rather be secure knowing that the feds were looking over my shoulder and keeping me safe. I have nothing to hide, and in times of war, these steps are necessary.

There are a few exceptions per comment thread, a few throwbacks to the pre-9/11 Right who think skepticism about power is justified even when the Red Team’s in charge. But they’re a distinct minority.

Was it September 11th that “changed everything,” or Republican takeover of the executive branch? Either way, for the Right, it’s a different world indeed.

Rural Newspaper Calls for the President and the Senate to “Mind Their Business”

The Enid News and Eagle posted an opinion article last week on the new farm bill. Admittedly, it is a rural paper (based in Enid, Oklahoma) catering to a rural readership. Most of you will probably not have seen it. But I was struck by a number of passages.

Take this one, for starters:

“It seems the 2002 farm bill was one of the more popular farm bills to come out in the history of farm bills, according to Frank Lucas. The Third District representative has been traveling the state getting input from agricultural officials and farmers on what should be included in the 2007 version of the farm bill.”

Of course the 2002 Farm Bill was popular, Congressman, at least with the “agricultural officials and farmers” you are talking to. A significant backtrack from previous farm bills, payments to farmers under the 2002 Farm Bill are projected to average over US$20 billion per year from 2005 to 2007. Agriculture officials are hardly going to support huge cuts to the agriculture budget, either.

Or consider this gem:

“…the House committee knows the most about agriculture and has the most contact with the people it will affect…”

The Enid News and Eagle is suggesting that the “people it will affect” are farmers and ranchers. This is undeniably true. But this farm bill, like all the others before it, will also affect every taxpayer and consumer of food in the country, not to mention commodity producers abroad. (more here)

On the one hand, it seems fairly reasonable that as part of the 2007 Farm Bill preparations, the administration and House and Senate Committee Members are holding a series of hearings all over the country. But on the other, who shows up to those hearings? Is it the consumers and taxpayers who, while collectively shelling out billions of dollars every year to agricultural subsidies and paying over-market prices, shoulder relatively little burden as individuals? No. Most of them have jobs to go to and little incentive to harangue Congressmen and officials. Farmers, on the other hand, are relatively well organized and have large incentive to ask for more money (or, in their more modest moments, ‘just’ the status quo).

Finally, for good measure, the Enid News and Eagle proposes letting the House agriculture committee and the farmers have full and exclusive rights over the farm bill:

“While we encourage input from farmers and ranchers, we discourage a lot of input in the bill from the president and the Senate.”

I’m new to this country, but isn’t there supposed to be a system of checks and balances here? Why do these opinion writers assert that there is no role for the administration or the Senate in crafting a new farm bill? While I, too, think there should be “little input” from government in farm policy, I don’t restrict my skepticism to only one chamber and the president.

If you missed our forum today on the farm bill, you can watch it here within the next 24 to 48 hours.

Hat-tip to Keith Good for the tip on the Enid News and Eagle.

Paging Thomas Schelling

The NRO editorial on Iran is predictably alarmist, but there’s one line in particular that stands out:

[Iran’s acquisition of a bomb] would effectively give Tehran a veto over U.S. military action in the region.

Simply put, this just isn’t true.  The Soviet Union’s and China’s possession of nuclear weapons didn’t prevent the US from invading Vietnam.  US possession of nuclear weapons didn’t prevent the Soviet Union from invading Afghanistan.  Israeli possession of nuclear weapons hasn’t prevented a series of attacks on Israel’s peripheral interests.  We could go on.

This kind of reasoning at NRO betrays how much we have forgotten about deterrence theory.  Since I’m probably younger than any of NRO’s editorialists, youth is no excuse.

Iranian possession of nuclear weapons would indeed give Iran a veto over one prospective US policy: regime change in Iran.  Nuclear deterrents are useful in protecting vital interests.  But the notion that an Iranian nuclear weapons capability would somehow give Iran a veto over the range of available US policies in the region is silly.  It would definitely make the US think twice about the implications of its policies in the region, and perhaps make America more cautious, but given recent experience, one has to wonder how bad that would be.  In the end, we don’t have evidence that Iran would be any more likely to risk escalation to the nuclear level than would any other state. 

This core-vs.-peripheral interests dichotomy is at the center of the literature on nuclear deterrence.  If NRO wishes to cast it off in the course of advocating military action, then fine, but at least a cursory effort at dealing with the work of decades of scholarship on the topic of deterrence theory would be a welcome gesture.

Retire Hitler, Please

Secretary Rumsfeld’s nakedly political speech this week likely presaged the congressional campaigns of the coming weeks.  In a sop to the denizens of the right-wing blogosphere, the formulation “Islamic fascism” is used to describe “the enemy” in the current conflict(s).  This is a useful mnemonic, since it conjures the one historical analogy that Americans remember: Neville Chamberlain’s appeasement of Adolf Hitler in 1938 and the resulting world war.

It is also useful for supporters of a neoconservative foreign policy approach because it lumps a whole host of disparate adversaries (Sunni insurgents in Iraq; Shiite groups like Moqtada al-Sadr’s Mahdi Army; Hezbollah; the Iranian theocracy; &c) into the “Islamic fascist” grouping, with the binary choices being appeasement or war.  And do you, dear voter, wish to appease the fascists?

Duke poli sci professor Bruce Jentleson helpfully points out the various hawks for whom Vietnam represented another 1938, but for right-wingers, there are a whole host of Hitlers out there waiting to start another bloody world war.

Secretary Rumsfeld has previously likened Venezuela’s Hugo Chavez to Hitler, as has Pat Robertson.  Rumsfeld has also likened Zarqawi, Ahmadinejad, and bin Laden to Hitler.  Ted Stevens and John Warner felt comfortable likening Saddam Hussein to Hitler before the current Iraq war.  Recall that for British foreign secretary Anthony Eden, it was Gamal Abdel Nasser who was the next Hitler.  Right-wing pundit Frank Gaffney had Colin Powell, of all people, in the role of Neville Chamberlain.  Even two-bit dictators like Slobodan Milosevic have gotten the Hitler treatment from American pundits.  And Charles Krauthammer may be the reigning king of Hitler analogies, apparently having compared Deng Xiaoping, Boris Yeltsin, Kim Jong-Il, and (this one’s a softball) Mahmoud Ahmadinejad to Hitler.  And via my friend Spencer Ackerman, I see that Leon Wieseltier has catalogued many of the Hitlers staring down Israel in recent years.

I could go on like this for hours, but it’s not the best use of our donors’ money or my dwindling sanity.  Hitler, thank God, was an aberration.  The Wehrmacht Hitler commanded was eminently capable of overrunning and occupying Europe.  (He thankfully also had the stupidity and hubris to decide that Stalingrad was in play.)  But to elevate Hugo Chavez, or even Mahmoud Ahmadinejad to Hitlerian heights is to completely miss the mark.

Like in criminal investigations, we have to consider both intent and means.  Divining intent is difficult, but ascertaining means is relatively easy.  When we look at the prospect of an Iranian bomb, though, we have to rely on interpretations of intent, since the means to attack Israel would clearly be there, albeit with a sure-fire suicidal result.  But war hawks seem to think that we should assume a fundamental irrationality on the part of Iran—that is, that its government would willfully bring about its own destruction in the pursuit of religious or ideological goals.  And even Hitler did not meet that standard of insanity.  Hitler made judgments based on his assessment of what he could get away with—until the war had gone too far and he thought there was no turning back.

I’m not a huge fan of historical analogies generally, but I sometimes wish that a 1914 analogy existed in the minds of Americans to counter the 1938 analogy.  But alas, the 1938 analogy seems to get applied to everything.  And when all you face are Hitlers, there aren’t a whole lot of choices to be made.  More to the point, like the boy who cried “wolf!” we may find ourselves so desensitized to the Hitler analogy that, should one arise in the future, we are numb to the warning.

Ambrose Bierce once remarked that war is God’s way of teaching Americans geography, but one wishes that war could teach Americans history, too.

Why Does the WSJ Have a Preferred Monopolist?

Today’s Wall Street Journal once again defends the mayoral takeover of Los Angeles public schools. The editorial board’s argument is that we shouldn’t make “the perfect the enemy of the good.” Fine.

But the pointless is the enemy of both the good and the perfect.

What the WSJ is saying is that it is “good” to substitute one education monopolist for another. In what other field does the WSJ have a preferred monopolist? In what other field would they suggest that simply dividing authority over a monopoly between a mayor and another government agency will lead to meaningful improvement?

The only way of “fixing” monopolies is to break them up and return power to consumers by instituting a level, free, competitive playing field for producers.

C’mon, guys, Adam Smith had all this figured out in 1776 – even with specific respect to education. And the evidence proves him right.