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Equal Treatment?

Guest Column: Steven

There was this call for help… I chose numbers five and fifteen… then figured I’d better combine the two. I’m not certain I’m the “expert” Tom suggests, but I’m sure happy to at least address a portion of our legal system and crime and punishment. This is a bit of an extended essay – please stick with me! A great video by Bill Whittle, an awesome cartoon… what could go wrong? So then, here goes:

I learned early that it is sometimes imprudent to “volunteer” oneself for anything. In fact, when I joined the Navy (thinking “navy” was actually a word describing an armed fleet) I discovered that the word navy is actually an acronym! Never Again Volunteer Yourself. Though that was often said tongue-in-cheek, the underlying thought that bad things happen when you volunteer never strayed far from our minds – especially in troubled waters.

That’s where I find myself here, trying to write something on crime and punishment and our legal system… troubled waters. First, it’s a huge subject with a wealth of material when it comes to deciding where to place one’s vote. Second, our country has strayed so far from the “Common Law” of our country’s birth that discussing any portion of contract, tort or criminal law is often fraught with built in misunderstandings because of several differences: education, ethnicity, and birthright to name a prominent few. Third, and last, the consequence of the criminal law in our country is almost a taboo subject… Prisons.

To try and pull these disparate parts together, and to focus our attention on “what we’re looking for in a representative,” I’m going to jump in to the middle of things and hope for the best… in other words, “let the chips fall where they may.” Up front full disclosure – I am a correctional officer working for the Oregon Department of Corrections (ODOC) and the views expressed here are mine alone. Additionally, much of the material I’ll draw from is found in the links at the end of this article. So then, here is the first jump into the middle of things:

Let’s try a definition or three.

Rule of Law: “The rule of law does not have a precise definition, and its meaning can vary between different nations and legal traditions. Generally, however, it can be understood as a legal-political regime under which the law restrains the government by promoting certain liberties and creating order and predictability regarding how a country functions.  In the most basic sense, the rule of law is a system that attempts to protect the rights of citizens from arbitrary and abusive use of government power.” [6&7]

Now this next definition may draw the ire of some fellow conservatives – so be it. A common wailing in the conservative ranks is that the legislature, not the judiciary, creates law. Our legal heritage derives from the English common law, and for circumstances not covered by statute, judges did indeed create law in what was known as a “court of equity.” So let’s be careful with our hand wringing when it comes to judicial decisions, and be reasonably certain that a situation is either covered by statute or is unconstitutional.

Common Law: That which derives its force and authority from the universal consent and immemorial practice of the people. The system of jurisprudence that originated in England and which was later adopted in the U.S. that is based on precedent instead of statutory laws. [8]

Common Law, also known as case law, or precedent, is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. A “common law system” is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions. [9] (emphasis mine)

And third, the notion of fairness (I greatly admire Thomas Sowell, and the notion of fairness is covered in links 1-4 below) as it commonly gets thrown around is NOT how I will be using the word myself.

Fairness: equity, conformity with rules or standards, or the ability to make judgments free from discrimination and dishonesty [10]. According to the Oxford English Dictionary (OED), definition #4, being fair connotes behaving “equitably, honestly, impartially, justly: according to rule.”

In other words, according to philosopher John Rawls, I believe in merely “formal fairness.” That’s right. In his book, A Theory of Justice, John Rawls popularized the notion of “social justice.” Now some may quibble here, but Rawls’ notion of “distributive justice” focused on outcomes… and he ruined the word fairness for an entire generation and beyond. What do I mean?

Professor Rawls advocated “a conception of justice that nullifies the accidents of natural endowment and the contingencies of social circumstances.” He called for a society which “arranges” end results, rather than simply treating everyone the same and letting the chips fall where they may [3].

When we speak of “leveling the playing field,” let’s make sure our representatives mean that when the ball field gets leveled, it is so anyone playing is running on the same grade! We do not mean handicapping a superior athlete so he’ll be “equal,” or run only as fast as the slowest member of the team. With these thoughts in mind, watch the following video, please! I think you’ll appreciate just how important Bill Whittle’s reiteration of Richard Maybury’s “Two Laws” at about 6:10 is!

The foundation of our model is the two laws that make civilization possible: do all you have agreed to do and, do not encroach on other persons or their property. The first is the basis of contract law, the second, the basis of tort law and some criminal law.  ~Richard Maybury

That should boil the big mess of our legal system down to a few elements worth looking at when reviewing candidates for office. Now let me take the time to quote Tom on his very concise thoughts on questions for Topic #5 – Law/Legal System:

We have too many laws. We would do well to have candidates who campaign on the basis of laws they will repeal more than on those they will write. If we do not fund the enforcement of a law, what is the point of passing the law? That only breeds more scofflaws. I think we should look at our court system and consider courts as a tool of last resort, after mediation and arbitration. I would welcome incentives towards mediation and against going to court.

Yup! Equal Treatment Under the Law...

What a word! Scofflaws. The OED reports that there was a contest “…for a word to characterize the lawless drinker of illegally made or illegally obtained liquor.” Ahhhh, a law that wasn’t obeyed for reasons left to the reader. The OED then provides this: “One who treats the law with contempt, esp. a person who avoids various kinds of not easily enforceable laws.” Both Tom and Bill state the obvious problems with too many laws… so, let’s not defund laws. Let’s get them off the books if they’re not worth the considerable amount of paper they’re printed on!

Phew!! Crime and punishment anyone?! Considering what we’ve just covered, I am only going to mention a few things. The Duke Rape Case. Beer Summit. Panthergate. In all of these, some element of the rule of law, the common law, or fairness was obviously violated. Worse, they were violated for the very reasons our political masters campaigned to fix… oops, I meant political servants of the people of course. How much really needs to be said here? Crime and punishment? Seriously? The cartoon and the Washington Post quote say more than enough and provide a starting point for anyone interested in the lack of justice in the Obama Department of Justice.

WaPo quote??

Three Justice Department lawyers, speaking on the condition of anonymity because they feared retaliation from their supervisors, described the same tensions, among career lawyers as well as political appointees. Employees who worked on the Brown case were harassed by colleagues, they said, and some department lawyers anonymously went on legal blogs “absolutely tearing apart anybody who was involved in that case,” said one lawyer.

“There are career people who feel strongly that it is not the voting section’s job to protect white voters,” the lawyer said. “The environment is that you better toe the line of traditional civil rights ideas or you better keep quiet about it, because you will not advance, you will not receive awards and you will be ostracized.”

Cheers all!


The Links:

  1. The Fallacy of Fairness: Part I
  2. ‘Fairness’ in Education (The Fallacy of Fairness: Part II)
  3. Rawls and Fairness (The Fallacy of Fairness: Part III)
  4. Innate Superiority: An Inferior Idea (The Fallacy of Fairness: Part IV)
  5. Washington Post confirms politics comes before justice at Obama DOJ
  6. Wiki: The Rule of Law
  7. University of Iowa: What is the Rule of Law?
  8. LectLaw: Common Law
  9. Wiki: Common Law
  10. Princeton Wordnet: Fairness

It is one week until the election.  I had planned to write posts on 20 important issues giving my opinion on the positions I wanted candidates to take on those issues.  In the 39 weeks so far, I have only posted 17 times on the topic and have only covered 11 (plus a twelfth – extra issue) of the 20 issues.  During that same time, I posted 64 other pieces.  As is normal, the urgent took precedence over the important.

So here are the issues not yet covered and a very brief comment on each:

1. National Defense (Issue #11)

2. Energy (was issue #7)

3. Communications/Mail (was issue #9)

4. Transportation – I think we need candidates who appreciate the value of our interstate highway system, our ports, airfields, and long haul rail freight system.  Investment to protect the infrastructure of these systems should be higher on our priority list than many current social/defense/agriculture programs.

5. Law/Legal System – We have too many laws.  We would do well to have candidates who campaign on the basis of laws they will repeal more than on those they will write.  If we do not fund the enforcement of a law, what is the point of passing the law?  That only breeds more scofflaws.  I think we should look at our court system and consider courts as a tool of last resort, after mediation and arbitration.  I would welcome incentives towards mediation and against going to court.

6. Agriculture (was Issue #4)

7. Commerce (was Issue #6)

8. Health care (was Issue #1)

9. Taxes (was Issue #3)

10.  Jobs (was Issue #2)

11.  Social Security – The old Defined Benefit Pension Plans served retirees for years until the late 70’s when laws were changed making Corporate Officers and Directors personally liable for benefit shortfalls.  If a social security type program based on the old defined benefit plan were considered to replace our current system, I would want to be part of the discussion.  I think we need to explore all aspects of funding retired workers day-to-day needs.  That includes private investment.  We don’t seriously look at our system today because any politician who does is immediately attacked much as would be the case if he/she suggested race-based programs or extending normal retirement to age 70.

12.  Foreign Policy – I know even less about our foreign policy than I do about most of these other subjects.  I do, however, think we are still in a position of enough power to change the stage a bit.  I would like to see a more forceful presence in the UN.  When we sit back and do nothing when Iran is placed on the Commission of Women’s Rights and Libya is chosen to Chair the UN Human Rights Commission, something needs to change.  There is a very interesting post here that discusses some of Mr. Obama’s successes in foreign affairs.

13.  GSEs like Fannie Mae and Freddy Mac – I would like to see candidates challenge the need for Freddie Mac and Fannie Mae.  There is a consensus that much of the real estate/mortgage bubble was caused by easy money/sub-prime loans/zero-down loans.  How can we still support an agency that is backing 105% loans in a falling real estate market?  Can anyone tell me why we need Freddie and Fannie?

14. Government Spending/National Debt (was Issue #5)

15.  Crime and Punishment – I will leave this to Steven at He is the expert.  I do have lots of questions.  Do we coddle our prisoners?  Do mandatory sentences tie the hands of the courts?  Do we repatriate or train criminals in our penitentiaries? Etc.  This will be covered along with Issue #5 in a guest post by the Skald.

16.  Security/Borders – A simple question for me.  Why have laws if you don’t enforce them?  Why have borders if you don’t control them?  Any candidate who believes that the Federal suit against Arizona (for trying to control their own border) is rational has some explaining to do to me before he or she will get my vote.

17.  Rights/Responsibilities/Privileges – We have rights, according to our Constitution and the Amendments thereto, period.  I don’t recall seeing a right to food, health care, housing, jobs, etc.  Those are things we earn by living up to our responsibilities.  Safety nets are a totally different concept than rights.  We need to make that distinction.

18.  Congress and Ethics (was issue #10) – Almost an oxymoron in today’s Congress.

19.  Environmental Issues (was issue #8)

20.  Your favorite issue goes here.  –  JSV suggested “Innovation” and I tend to agree that it is a critical issue.  I will try to get a post before the election on this issue.

Extra Issue – Legalize Drugs.

The United States will spend almost $700,000,000,000 (700 billion) on Defense related expenditures in 2010.  That will amount to about 5% of our GDP.  By comparison, France will spend about $67 Billion or 2.3% of their GDP and Germany $48 Billion or 1.3% of their GDP on Defense.  The average of our NATO partners is about 1.7% of their GDP, about one third of what we spend.

I bring this up for two reasons.  Either this indicates that we spend more than is prudent based on what our partners spend, or, we are subsidizing the defense of our partners (and others) to the tune of about (5% – 1.7% = 3.3% of GDP =) $460 Billion.  That is right at $1400 that each U.S. person is paying this year alone, to protect our NATO Allies.  Admittedly there are other reasons for these expenditures, but it is hard to see these numbers and wonder why the U.S. should be spending more defending our NATO partners than they are spending themselves.

How much we spend is a complex matter, tied to diplomatic efforts, protection of our borders, self defense, and the organization of our defense efforts.  I am no expert and don’t even have sufficient knowledge to propose a way to properly organize and administer our defense efforts.  I am, however, fairly certain that we can safely spend less on our defense.

NATO heads of state (28 of them) will meet November 20 in Lisbon to craft a new Strategic Concept.  I know that this is tied to diplomacy, but, I see an opportunity for the USA to strongly suggest to our NATO allies that they might want to do a bit more to provide for their own defense.  The NATO Alliance mandates that each country commit at least 2% of its GDP to its own defense.  Most are not complying.  To me this poses an opportunity for the US to back off from its spending on behalf of NATO.  This may be a good place to start winding back some of our defense spending.

I want candidates who both appreciate the importance of a strong and technologically advanced defense, and, the need to reign in expenditures.  I would like to hear a candidate who is supportive of our military personnel who is also a strong critic of how our defense dollars are spent.  I would love to see a candidate who would propose to completely dismantle our military procurement system and start over using a business model.  The layers of bureaucracy built into the system of military purchasing probably costs the U.S. more than the defense budget of the average NATO ally.

My guess is that about 20% of our Defense Budget is in direct support of NATO goals.  If we cut that by 50%, it would save us $70 Billion a year, more than France spends on its entire defense program.  Have you heard any candidates talking about this issue?

I found the following on the website today.  It may be old news to some, but, I had not seen it anywhere in the “mainstream media.”  If it is true that Mr. Obama has hardly mentioned any of this because he needs to demonize American Business, I’m disgusted.  If this is not the case, please tell me why he has not been singing the praises of these companies for the past days.

Here is the post at

AMERICAN Companies Rescue Trapped Chilean Miners
AR51 ^ | 11-13-10

Posted on October 13, 2010 7:06:25 PM PDT by STARWISE

Far be it for an American President to publicly congratulate (let alone even mention) AMERICAN ingenuity and AMERICAN PRIVATE ENTERPRISE for the miracle rescue of the Chilean Miners.

Schramm Inc. of West Chester, Pennsylvania built the drills and equipment used to reach the trapped miners.

Center Rock Company, also from Pennsylvania, built the drill bits used to reach the miners.

UPS, the US shipping company, delivered the 13-ton drilling equipment from Pennsylvania to Chile in less than 48 hours.

Crews from Layne Christensen Company of Wichita Kansas and its subsidiary Geotec Boyles Bros. worked the drills and machinery to locate and reach the miners and then enlarge the holes to ultimately rescue them.

Jeff Hart of Denver Colorado was called off his job drilling water wells for the U.S. Army’s forward operating bases in Afghanistan to lead the drilling crew that reached the miners.

Atlas Copco Construction Mining Company of Milwaukee, Wisconsin provided consulting on how to make drilling equipment from different sources work together under differing pressure specifications.

Aries Central California Video of Fresno California designed the special cameras that were lowered nearly a mile into the ground sending back video of the miners.

Zephyr Technologies of Annapolis Maryland, made the remote monitors of vital signs that miners will wear during their ascent.

NASA Engineers designed the “Phoenix” capsule that miners would be brought to the surface in, and provided medical consulting, special diets and spandex suits to maintain miners’ blood pressure as they’re brought back to the surface.

Oh, and Candadian-based Precision Drilling Corp. and South-African company Murray & Roberts, drilled a backup rescue shafts in case the American rig failed. Which it didn’t.

It is a thorny issue, or, maybe I should say, many thorny issues.  Should members of Congress be paid a great salary and fantastic benefits (like they are now) to encourage participation from a broad spectrum of the population and to attract the best possible candidates?  Or should they be paid the average national wage and benefit package?  One way would help recruit more talented people, but it would encourage them to make a career of the job.  The other would only recruit people who want to give their time or who want to use their position to get benefits that are off the accounts.

Similar, but I think more important, is the issue of how the Members act when they are in Congress.  Most of the incentives in Congress today are focussed on remaining in office as a career.  The powerful jobs are held by those with the most time in service.   To get reelected, Members must have serious funding.  That often comes from advocating for powerful and well funded lobbies.

So what must be done to have a Congress that does right, not a Congress that does what is expedient?

Easy answer:  You elect good, ethical people who want to go to Washington for one or two terms to do the people’s business.

Wrong answer:  You send the wrong people to Washington and try to control them with Ethics Rules and Ethics Committees.

Would any ethical person you know have been a party to a $300,000,000 bribe to gain the vote of a Nebraska Senator?  Would any ethical person you know even consider using his or her position to give a government contract for goods or services to his or her child’s company?

In my view, if we want an Ethical Congress, we will have to elect it.  Trying to legislate it like we now do ends up with the fox guarding the hen house.  Any candidate who claims to have plans to legislate the ethics of the Congress probably knows how to get around those rules to his or her advantage.

Let’s look at the backgrounds of our candidates and elect one’s who have proven by past action that their ethics are above question and more like normal citizens than like Washington Elites.

Here is the list of the Issues for the series, “20 Issues – 40 Weeks”:

1. National Defense

2. Energy (was issue #7)

3. Communications/Mail (was issue #9)

4. Transportation

5. Law/Legal System

6. Agriculture (was Issue #4)

7. Commerce (was Issue #6)

8. Health care (was Issue #1)

9. Taxes (was Issue #3)

10.  Jobs (was Issue #2)

11.  Social Security

12.  Foreign Policy

13.  GSEs like Fannie Mae and Freddy Mac

14. Government Spending/National Debt (was Issue #5)

15.  Crime and Punishment

16.  Security/Borders

17.  Rights/Responsibilities/Privileges

18.  Congress and Ethics

19.  Environmental Issues (was issue #8)

20.  Your favorite issue goes here.

Extra Issue – Legalize Drugs.

So this means I have about 25 days to cover the following:

Congress and Ethics, Rights/Responsibilities/Privileges, Transportation, Social Security, Foreign Policy, National Defense, Crime and Punishment, Security/Boarders, and one additional one not on the list of 20, Innovation.

If you would like to take a stab at any of these, I would love to see it. I will post what you write and then comment on it.  I’m pretty sure that if I don’t get help from others I will not finish the list.  In fact, right now, I feel it will take me too long to research and write posts on Crime and Punishment, and, Foreign Policy to do them any justice at all.

So please chip in and help.  I don’t care whether you are “conservative” or “liberal,” “libertarian” or “Rastafarian,” or “holy roller,” as long as the language is acceptable and there is nothing threatening or otherwise inappropriate, I’ll print it.  Feel free to email your piece to me at

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