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A Rad idea about 14th Amendment Jurisprudence

Long, long ago in a blog far away (the archives of which appear to be no longer available), I was introduced by a lawyer to the state of 14th Amendment jurisprudence. I've found a page on-line here that says roughly the same thing as what he said.

Here follows a slightly uncharitably worded summary of my own: The 14th Amendment says that states may not deny to any person the equal protection of the laws. This seems to mean that the states can't treat people unequally by law. But how can we possibly apply that, since all laws involve treating people unequally? A law against theft treats thieves differently from non-thieves. So what are we going to do? Hey, I know. Let's create three stages of scrutiny that the federal courts will apply to state laws, based on whether or not the state laws treat people unequally on the basis of "suspect categories." The most glaringly suspect category will be race or national origin, because the 14th Amendment was originally passed for the purpose of protecting former slaves. But gender is now also a suspect or semi-suspect category, and being disabled is becoming a suspect category as well. If your state law treats people unequally on the basis of something that hasn't been designated a suspect category, your state is in luck. That law only has to pass minimal scrutiny or the "rational basis test" by the federal courts if challenged as unconstitutional. But if your law treats people unequally on the basis of something designated a suspect category, then it has to pass strict scrutiny, which means it's prima facie unconstitutional, and you'd better have an overwhelmingly important state interest that it serves or it's going to be struck down. Intermediate scrutiny is somewhere in the middle.

Got all of that?

No less a jurist than Robert Bork (for whom I have the highest respect) has used similar reasoning to argue that the 14th Amendment should apply only to distinctions based on race. In other words, he accepts the basic structure of the reasoning just given but argues that, to prevent judges from making sweeping judgements about the reasonableness of distinctions, there should be only one type of "suspect group"--race or ethnicity:

All laws, all statutes, contain classifications. That is, they treat people or behavior differently or the same according to characteristics the legislature deems relevant....When a judge assumes the power to decide which distinctions made in a statutes are legitimate and which are not, he assumes the power to disapprove of any and all legislation, because all legislation makes distinctions....The case for confinding the amendment to statutory distinctions drawn in terms of race or ethnicity is that permitting the judges to choose subjectively which grounds of classification they will treat like race confers upont he courts a power to tell legislatures how all of their statutes on every subject must be written. That, we may be certain, was not what th eratifiers of the fourteenth amendment had in mind. (Tempting of America, pp. 65-66)

Okay, so let's think of some of the implications of the three-tier system, or even of a two-tier system in which the only suspect category is race: Suppose some really liberal state, like New York, passes a law that says that if you drag a guy out of his car and bash his head in or shoot him, and he had a leftover Bush/Cheney bumper sticker on the back of his car from the 2004 election, you will receive no more than two years in prison, max. We'll call this a Bush Derangement Syndrome law. Now, this law is obviously a case of the state's denying to some persons (those with Bush bumper stickers) the equal protection of the laws--specifically, the protection of laws against murder. Right? So it's unconstitutional on its face, right? Well, wrong. People with Bush bumper stickers aren't a "suspect group," so the law in question would receive only minimal scrutiny. That is--note this--such a law would not be prima facie unconstitutional. Now, you might argue that it couldn't possibly pass the minimal scrutiny "rational basis" test. Maybe not, though (and in most cases this is to their credit) conservative justices like Scalia tend to make minimal scrutiny very minimal indeed. And we can work up some smooth-sounding state interest. Let's see: It is in the interest of the State of New York to deter people from having Bush campaign bumper stickers on their cars, because doing so tends to cause road rage in this state.

But that's really beside the point, because even if such a law didn't survive minimal scrutiny in practice, my point is that it just seems nuts to have such a law be treated only to minimal scrutiny to begin with and therefore to be treated as prima facie constitutional rather than prima facie unconstitutional when it is so obviously a violation of the provisions of the 14th Amendment.

The problem, it seems to me, begins in the second sentence of my summary of the reasoning--namely, that the 14th Amendment appears to prohibit the states from treating people unequally under the law. Now, that just isn't what it says, so it doesn't appear that way to me even to begin with. It says "deny to any person the equal protection of the laws." Isn't the problem there that we start by changing "equal protection of the laws" to "equal treatment," and then, because we realize that would strike down all laws, we have to start doing complicated things in jurisprudence to limit the damage? It seems to me that it would make a big difference if we started instead by emphasizing the concept of the protection of the laws. Positive laws often protect people from specific, active, manifest harms. So why shouldn't the idea be that, if you have a law that protects people from some manifest harm perpetrated by private or public entities, it must protect them equally? If you have no such law against some form of harm for anyone in your state, or if we're talking about state discrimination in passing out some benefit (like a job, for example), this would not be prima facie a violation of the 14th Amendment. This would exactly reverse the present status of, say, gender discrimination and laws allowing murder of Bush fans. If a state discriminates against women in hiring state troopers, for example, this would under the present system be subject to at least intermediate and possibly strict scrutiny, depending on how "suspect" you think the category of gender now is. But under my radical new proposal, such discrimination would be prima facie constitutional under the 14th Amendment, because it doesn't concern an existing state law that protects some persons but not others from a manifest harm. The Bush Derangement Syndrom law, on the other hand, would be facially unconstitutional, because it involves giving Republicans or other Bush fans less protection from murder than is given to other people under the laws of that state.

Let me bring this from the realm of fantasy into the real world. Wesley J. Smith mentioned a case a few months ago in which a judge threw out a case of a newborn infant who was found in a dumpster with air in his lungs, which would usually be considered to indicate that he was born alive. Note: It wasn't that the case came to trial and, at the sentencing stage, some sort of mitigating circumstances were brought in and the mother given a reduced sentence on that basis. No, the judge threw the case out ab initio. To my mind, this is very little different from the law's turning a blind eye to the lynching of a black man. Such a refusal by the judge to allow the prosecution to proceed is, to my mind, pretty clearly a case of denying to a person (the newborn baby) the equal protection of the law.

Here I'm simply setting aside the interpretive question, on which Scalia and Bork take a position unpopular with some conservatives, of whether "person" in the 14th Amendment includes the unborn. This child was born and was obviously a "person" under the original meaning of that amendment. No one would contest that. Peter Singer hadn't come on the scene yet when the 14th Amendment was passed, thank God.

Now, let's imagine a state statute that enshrined the judge's practice in positive law, that said, for example, that if a born infant is killed within the first 24 hours after birth by his own mother, she won't be prosecuted. Such a law would, as far as I can tell, face only minimal scrutiny under the present three-tier system of 14th Amendment jurisprudence, because newborn infants aren't a "suspect group."

I should note that this looks to be not so very far off from the actual laws in several foreign countries. Search "infanticide" in this Wiki article. Romania and Finland seem especially egregious. They provide lesser sentences for infanticide within the first year or two without even bothering to stipulate that this applies only if the mother was suffering from some form of diminished responsibility like post-partum depression. The UK and Israel require at least that much. Maybe the folks in Finland assume that all mothers of newborns are suffering from diminished responsibility.

My own approach to stare decisis is a bit casual and would probably shock most lawyers. I figure following precedent is a bit like rolling up your car windows when it's about to rain cats and dogs. If you don't do it, you could easily end up with a big mess. On the other hand, there might easily be overriding reasons that would cause you not to do it.

So maybe we should have a big-time overhaul of our 14th Amendment jurisprudence to emphasize "protection" rather than "equal." In some ways this would be more restrictive than what we have now. During the Aiden Stein case a few years ago, it came out that under Ohio law a person diagnosed in a persistant vegetative state could not be removed from "life sustaining treatment" (which, since Cruzan, includes food and water) until a year had passed. I guess we should be thankful for small blessings! But this requirement did not hold under Ohio law in the case of a minor child, and "life sustaining treatment" could be withdrawn sooner in that case. It appears that this may not actually have been a deliberate exclusion of children from the protection of the law but rather some sort of accident or oversight. Nonetheless, when I brought up this case in a conversation while I was under the impression that it was a deliberate exclusion of children from the one-year protective clause, an interlocutor argued that this should pass the minimal scrutiny rational basis test because the state interest in question would be maintaining parental authority. Normally I cheer for maintaining parental authority, but it's not clear to me (to put it mildly) that the authority to dehydrate one's child to death without even waiting a year is such a great thing. (To be clear: Baby Aiden required a ventilator, and if he had been removed from life support he probably would not have lived long enough to be dehydrated to death.) Moreover, and ironically, in the case of Baby Aiden the state had taken medical guardianship of the child from his parents, so it would be a state guardian who would be making the decision anyway, against the parents' wishes. Such a law would, under my proposed 14th Amendment jurisprudence, be prima facie unconstitutional for failing to provide equal protection of the law to minor children against the withdrawal of life sustaining treatment.

On the other hand, in many ways such an interpretation would be less restrictive on state prerogatives. Certainly VMI would have been able to keep "discriminating" against women in its enrollment!

So what do you think? Is this a bad idea? Is it manifestly wrong in terms of the original meaning of the text? The question is, of course, purely theoretical, as no one is asking me how we should radically change 14th Amendment jurisprudence. But in constitutional interpretation, purely theoretical questions are interesting.

Comments (105)

I guess I don't understand what "equal" means. ("Equal" is one of those words that everyone thinks they understand but really don't: that is, just about everyone who uses it means something different by it, and often the same person means something different from one use to the next). I blogged on this a while back while addressing an entirely different subject. At the time I wrote:

"It seems to me that every claim of equality implies at least one more semantic step, without which the claim of equality is meaningless. In the abstract all that 'equal' means is that some attribute is identical among specified instances: that the things being specified are identical in some respect. With numbers that attribute is quantity. With anything other than numbers, every claim of equality is empty without specifying the putatively identical attribute(s)."

Maybe we can say that in order to be prima-facie constitutional a law has to apply to everybody. If we limit this to "protection of the laws" that means I suppose that anything the law protects it has to protect for everybody. But this still seems to me to be something of a meaningless abstraction: the law isn't going to equally protect both you and I from trespassers at One Elm Street if you are the homowner and I am not. It has to make an authoritative discrimination at the level of particulars. Every law without exception has to make some kinds of authoritative discriminations at the level of particulars. This is almost a definition of what a law is: an authoritative discrimination. It is certainly essential to law if it doesn't constitute a full definition: a "law" which makes no authoritative discriminations isn't a law (just as a "right", which is a special category or particular view of a law, always makes authoritative discriminations).

So "equal protection of the laws" or "equal rights" is either empty of meaning - that is, it is substantively superfluous and has to be backstopped against some tradition or conception of natural law which does all the discriminatory legwork, and which is let alone by the principle to do that legwork at the level of particulars - or it is outright self-contradictory, requiring us to authoritatively discriminate in a way that doesn't discriminate.

At a certain level modern people don't want to face the fact that some discriminations are good and some are evil; that authority inherently discriminates and that this is good and necessary. In order to avoid talking about good and evil we introduce the concept of equality and empty our discourse of all meaning.

I am of the considered opinion that your idea is fabulous, in that it would actually complete the logic of Bork's original argument for the limitation of the Fourteenth amendment. Where his proposal would limit the discretion afforded judges inclined to legislate, this proposal would actually throw the critical and contested questions back upon the legislature, which would be required to positively define specific harms in order to extend protection to groups and situations now covered by nondiscrimination statutes largely by diktat.

Caveat: Not a lawyer. Though I am not so naive as not to have noticed that stare decisis tends to be discarded in the case of decent law, and invoked in the case of bad law.

Then again, taking Zippy's wise strictures against invocations of equality into consideration, I am reading this proposal as requiring legislatures to specify the respect in which persons and classes of persons are to be considered equal. Perhaps I have missed something.

I think Maximos has me right. My idea would allow the rather strange situation in which a state has _no_ laws against murder and lets everyone run wild to be okay *as far as the 14th Amendment is concerned*, because the legislature has chosen to protect no one against murder.

The thing is that the amendment itself has the word "equal" in it. Now I'm an originalist (of the intentionalist school of thought) and tend to think that legally we should first try to find out what the original meaning of that was. We may not like the fact that those guys chose to write such a high-falutin' sounding amendment. As a matter of fact, I can see something to the argument that the amendment was a bad idea. Look at all the jurisprudential knots it got us into because it is in prima facie conflict with the amendment that says a state is sovereign and can't be sued. (Is that the 11th?) But be that as it may, there it is: Part of the constitution.

I certainly agree that some forms of "discrimination" are good and others bad--like the discrimination between a murderer or thief and a person who doesn't commit these acts. I would like to think that on my proposal the legislatures of the states would be fully permitted to "discriminate" in this sense of the term without hindrance. The stipulation would simply be that, if they say, "You private folks can't harm people in such-and-such a way" they can't then say, "Except for such-and-such a group of people. Go ahead and harm them in that way if you like. You'll get a lesser penalty and maybe just a slap on the wrist."

But here: I'll throw out what seems to me an interesting objection to my proposal. Most states rightly allow private violence for purposes of self-defense. Someone might argue that this is saying, "You can't shoot people privately, people are protected against being shot by private persons. But persons who are breaking into houses aren't protected against being shot by private persons." Hence, self-defense permission might be regarded as contrary to the 14th Amendment on my proposal, which is obviously not something it meant originally.

My initial response would be that in this case we can define the manifest harm against which the state laws are offering protection as "being assaulted when you aren't yourself attempting aggressive harm to others." And everyone can be protected against that harm while allowing self-defense. But this may strike some as casuistical.

I think that casuistry is a fine, fine thing, far preferable to the airy abstractions with which modern jurisprudence occupies itself, principally to occult the nature of the decision-making processes and the identity of those rendering the decisions. A wealth of detail is greatly to be preferred over the dissimulations under which we now suffer.

"being assaulted when you aren't yourself attempting aggressive harm to others."

Heh. I think that may just move the territory for substantive disagreement over good and evil to what is meant by "aggressive harm" and "assaulted". Creating a hostile environment for gays and lesbians in the Born Again Baptist Bakery is, under someone's interpretation I am sure, a form of aggressive harm. So a law that protects Christians against the hostile environment of pornography in bakery windows would be unconstitutional if it didn't equally protect gays against a hostile display of the Cross.

I wonder, Lydia, what an intentional originalist ought to do when she realizes - stipulating it to be the case - that the original intentions of the legislators was multivocal or even outright incoherent.

Well, I'm just a little prickly, because I will have to state forthrightly that I'd have no objection to defining positively that the public display of pornographic imagery constitutes a form of aesthetic and moral aggression, and must be proscribed, while a business environment ill-suited to the preferences of aggressive homosexuals ought not be so defined. Which is obviously a way of stating that it is the Christian tradition that ought to inform the specifics of the positive law, because only within this tradition do we actually possess an accurate delineation of the goods of human nature, and the harms that invert them.

But this is the question which modernity at once tries to evade and answer, quite successfully, alas.

Which is obviously a way of stating that it is the Christian tradition that ought to inform the specifics of the positive law, because only within this tradition do we actually possess an accurate delineation of the goods of human nature, and the harms that invert them.

Yep. And I'm just as grouchy. Liberalism/modernism has done a remarkable job suppressing discussion of what is substantively good and what is substantively evil, holding its discursive head under the water of formal equality and thereby liberating that which is evil.

My own impression is that the sort of "protection of the laws" that could be given or denied to "any person" would not in its original meaning include protection from seeing pornography. I'm strongly on the side of anti-pornography laws. I just think that neither protection from a pornographic environment nor "protection" from an anti-homosexual environment would have been included in the orignal meaning of the notion involved, though of course the men who wrote the 14th Amendment would have been enormously more sympathetic to anti-pornography laws than to laws "protecting" homosexuals from discrimination or "hostile environment," etc. My point is simply that I don't think the amendment, even on my reading, speaks to either of these, so the issue of "equality" between them doesn't arise.

Zippy, if it's incoherent enough, a given law may not be able to be applied. But I think the textualist originalists are on to something when they object to mystical or implausible readings based on intention. It's perfectly reasonable as a principle of practice to treat the law as if it were written by a non-deceptive author who was trying to make his meaning clear to the audience of his time. This is necessary in order for us to blame people for not following laws. It's also necessary in order to, as it were, punish people who deliberately pass laws deceptively. It's rather like a contract: If you were crossing your fingers while signing it, you were still trying to convey to the other person the "normal" meaning, so you deserve to have the normal meaning enforced against you. I think this last point may be relevant to the 1964 Civil Rights acts. If they were being deceptive when they said it wasn't a quota bill, they deserve to be taken at their word.

But I think the textualist originalists are on to something when they object to mystical or implausible readings based on intention.

Me too, though in this particular case I am probably even more minimalist than the textualists. I'm perfectly willing to see the 14th amendment as meaning nothing more than "no state shall legally treat the former slaves as second-class citizens", for example. I think when this "equal protection of the laws" business starts getting taken seriously as asserting some more general abstract principle, though, that any appeal to either intentions or plain-text meaning degenerates quickly into (at least) multivocity and probably incoherence. Yet at the same time I think the people who wrote and ratified the amendment probably did intend it to assert some more general principle. So for me the "what happens when the positive law asserts something contradictory" question is not merely theoretical when it comes to the 14th amendment.

Lydia, here's another rad idea, which I hope isn't off-topic: why not abolish the 14th amendment?

Heh. Not a bad idea, sez' I. I was reading Woods's PIG to American History with my daughter last year. You should hear those paleo-libertarians fume about the 14th Amendment. And I have to say he has a lot of good points!

The truth is, it _could_ have been used in a good direction, but it hasn't been. For example, as I suggested during Terri Schiavo's ordeal, Congress could pass a law saying that food and water cannot be denied to helpless people on the basis of cognitive disability (such as PVS) and enforcing it by saying that any state that does so will be denied all federal funds for all purposes, period. Of course, if I had my way those federal programs probably wouldn't exist to be used as a threat in this way, but what the heck. There they are. And the 14th Amendment _does_ say that Congress shall have authority to pass laws to enforce the amendment. It just neglects to say how (in an age before there were big federal programs) the federal Congress can enforce laws against the states themselves. But this would do for a start.

But nothing like that is going to happen. The darned thing just keeps being an instrument for bad, and it's very hard, I admit, to tell what the dickens its original meaning _was_. So repealing it is probably okay with me.

I wish Crimson Catholic would show up, though, and tell me I'm all wet as far as original meaning. I invited him by e-mail (got his e-mail, Zippy) and he sounded enthusiastic. Maybe he'll be around in a couple of days.

Spent the day in a car, so I wasn't of much use. But having read through the problem, this thing has the Law of Unintended Consequences written all over it.

The problem is that the 14th Amendment deals with state action. I'm sympathetic with the notion that there are some provisions that, if given, must be given to everyone. For example, judges need not be elected, but if judges are elected, then everyone has to be given the opportunity to vote. One could analogize protection from physical harm to protection to things like the right to vote. The problem that I see is that you appear to have specifically endorsed the concept that this equation must be not merely de jure but de facto, as in the case of turning a blind eye to the lynching of a black man. Ordinarily, turning a blind eye in these situations is de facto and not de jure.

If that is the case, then you are effectively holding the state to a standard of positive action, which I vehemently oppose. Crappy government is our own fault as democratic citizens, and the only method of correction is a better citizenry. I certainly don't want judicial remedies as against state INACTION. Equal protection is intended to prevent the state from violating your rights, not to invoke the state's obligation to protect them.

Effectively, what you did is to take a positive state protection and invoke a suspect class analysis (in this case, age) to deem the positive protection unequal. Oridnarily, if the state wants to protect some class with a positive endowment more than others, it's not problematic. The only rare exceptions are cases that involve fundamental rights or denial of some government provision based on a suspect class (like race). Age is a category ordinarily subject to rational basis scrutiny, and you're effectively complaining about the correct test being applied because it is unjust to draw lines between people based on age (specifically, the age of the murder victim).

You'd probably be better off arguing that life (or protection from physical harm) is a fundamental right irrespective of age, and the state has made a provision protective of this fundamental right, which doesn't depend in any rational way on the age of the victim (unlike, e.g., voting). Hence, the protection, dealing as it does with a fundamental right and subject to higher scrutiny (effectively, better justification with respect to the interests protected by the right), would be unequal. But then you've opened up fundamental rights analysis, and I doubt you want to do that. On the whole, I would want to stay away from analysis of positive state action as much as possible, and if they blow it, it's the response of a democratic citizenry to correct the law legislatively.

For example, judges need not be elected, but if judges are elected, then everyone has to be given the opportunity to vote.

Well, except for those people who aren't given the opportunity: children, felons, illegal aliens, the illiterate, the homeless, those who haven't paid their poll tax, etc.

And, if I may be pedantic, it may be interesting to note that even when everyone other than the excluded classes are given the opportunity to vote it is not the case that every vote in the voting class has equal influence on outcomes. I think liberalism generally sees democracy as inherently morally superior precisely because formal numerical equivalences can be drawn which create an illusion of substantively equal representation, and equality is the moral imperative of liberalism. (This may sound a bit OT, but I don't think it makes any sense to discuss the 14th Amendment without discussing the meaning of equality).

Finally, the Law of Unintended Consequences is writ large across all human endeavors. That is why, in my view, political decisions should be made primarily on moral grounds rather than on technical or technological grounds. (Though of course properly prudential moral decisions do themselves take into consideration the LoUC :-)

Jonathan, I've been worried about very much the sorts of things you're talking about--that demanding that protection be equal could be a mess, practically speaking. But I'm just puzzled in terms of understanding original meaning by the argument that "nor deny to any person the equal protection of the laws" must only enjoin state )_action_ against people and can never concern state inaction. The language on its face sounds like it's demanding that the state _protect_ them equally, not "deny" that protection --i.e. like it's demanding state action.

Suppose that state inaction were clearly based on a suspect class. Suppose a black person gets the tar beaten out of him before a lot of witnesses and that the perpetrator is not prosecuted. So the black person writes a letter to the State Attorney General objecting to the fact that the local police refused to file charges. The State AG writes back in black and white (!) on state letterhead and says, "Thank you for your letter. I can understand how frustrating it was to get the tar beaten out of you and to have the matter ignored by local police. But had they filed charges, no prosecution would have gone forward in any event. It is our policy here in the state of ______ to take no action to prosecute beatings when these are perpetrated against black people. You may want to take measures for your own self-defense from now on with this understanding in mind, or, if you wish, you may leave the state."

The lawsuit for a violation of this guy's 14th Amendment rights would, I guess, go through the court system so fast that the naked eye couldn't follow its progress. And rightly so. Right?

Is this just because, as you say, protection from physical harm is supposed to be a "fundamental right," so there state action can be required? (I'm gathering--so this is educational for me--that fundamental rights are not treated in quite the same way in the three-tier system as other things and that you don't already have to belong to a suspect class to get strict scrutiny when a fundamental right is in question?) Do you agree with that approach, or would you rather that state inaction were never litigable under the 14th Amendment? Myself, I'd rather (as you say) not get into "fundamental rights" talk, but perhaps my notion of active and manifest harm would end up coming to much the same thing.?? I would include protection from open fraud or breach of contract though, which I suppose doesn't concern a fundamental right. (Re-write the story and have the used-car salesman refuse to honor the warrantee. The judge throws out the case and says they don't help black people in such circumstances, or something like that.)

Given the preceding context particularly (abridging privileges and immunities, deprivation of rights without due process), I think it's a hard argument to make that it requires any positive provision. It would be hard to arguing that a state can "deny" by doing nothing, and in a legal sense, it would appear formally impossible to "deny" anything to anyone who has no cause of action to demand state compliance. Denial implies a request, and to make this legally cognizable, you're basically arguing that in this class of fundamental rights, the person has the right to demand the state to do something. If it said "not shall fail to give any person the equal protection of the laws," that would imply the creation of a positive obligation. But the language "deny" appears specifically to be intended to invoke existing systems for petition of redress for grievances, not to impose an additional obligation the state never had.

The Attorney General in your case would be a state policymaker ("It is out policy..."), which would be cognizable as law. Thus, this would be subject to heightened scrutiny under traditional equal protection jurisprudence; it's a formal policy that discriminates based on race. By your reasoning, unless failing to protect black people were sheerly irrational (and under current rational basis scrutiny, it would be sufficiently rational if, e.g., black people got attacked more often so that it would cost more to protect them), then it would be permissible to do so.

Ordinarily there is no positive obligation whatsoever even to protect fundamental rights; the only restriction is that whatever positive steps the state DOES take are fair. In that respect, I think the rule is entirely correct. I would say that state inaction (failure to protect rights) is never litigable under the 14th Amendment. If there is no law against fraud or breach of contract, the state cannot be sued on that account. It is the responsibility of the democratically sovereign people to make those laws, and if they are not made, then no one has any cause for complaint.

You seem to be offended at the notion of the police pointing and laughing while someone is beaten up, defrauded, etc. That doesn't trouble me in the least. I don't think that the person ought to have any formal legal rights apart from the ones everyone else has: free speech and voting. It's not the government's "job" to do one whit more than the sovereign people command them to do, with the sole rememdy against poor performance being democratic replacement. Remember what you said about positive authority being a limitation on government; this is a necessary consequence of the same idea.

You cd. word what the Attorney General says differently so it doesn't sound like making law. E.g., "In this state we are highly unlikely to prosecute this crime if it was perpetrated against a black person."

I'm a little baffled at the idea that, if there _is_ a law, people are not thereby granted the right (if we must talk of rights) to the protection of that law. In my scenario of the beaten up black guy, the legislature has done all it can do by passing a law against beating people up. So this isn't a case where there is no law. The police and attorney general are deliberately undermining that law by refusing to prosecute under it when they don't like the person who has been harmed. In fact, in our other discussion on Zippy's blog of positive law and authority, I would have taken the position that the attorney general is bound by his oaths to uphold the law--to enforce it where it's applicable, as it clearly is here.

The question, then, is one of remedy. Your argument is that the remedy must be for the people to use the state's mechanisms to get the negligent enforcers out of office and _must not_ be in the federal courts in the form of arguing that they have failed to provide to the person whose beating was ignored the "equal protection of the laws." I can certainly see serious practical and prudential problems with having the federal courts monitor the application of the laws of the states--what is and isn't prosecuted, the police procedures. One question I would have is what the writers (or audience, if you're a textualist) of the 14th Amendment would have said about this sort of scenario, especially if it took the form of treating former slaves in this fashion and was therefore closely related to the immediate occasion of the amendment itself.

So this isn't a case where there is no law.

I suppose that is a matter of perspective. If there is a law explicitly protecting everyone who doesn't have a Y chromosome from being beat up, and that is the only law which protects people from getting beat up, then there is no law against beating up people with Y chromosomes.

Right, there are two different examples flying around here, and we need to keep them distinct. In the one type of example, there is a law protecting (say) children and adults of two years old and up from murder but defining killing of children under two (or one, or whatever) as "infanticide" punishable by no more than some short time like four years. That's the kind of case I was considering in the main post.

In the other example, which I gave in the exchange with Jonathan, a state official writes a letter in which he openly admits that in his state they do not enforce the existing laws (which nominally apply to everyone) when the person beaten up is black. It seems to me plausible that such a failure to act would be litigable under the 14th Amendment, especially where it undeniably concerned a member of a "suspect group." I was raising this as an attempted counterexample to Jonathan's contention that the 14th Amendment would never make inaction litigable but would only make "unfair state action" litigable--such as, I suppose, discrimination in hiring or something.

Good clarification.

You cd. word what the Attorney General says differently so it doesn't sound like making law. E.g., "In this state we are highly unlikely to prosecute this crime if it was perpetrated against a black person."

There is literally a world of formal difference between the two cases. In one case, there is an official policy, and in one case, there isn't. If there is an official policy, you can do something about it. If someone is simply a slacker in his job without invoking his official authority to demand compliance, then it's a matter of democratic accountability.

In my scenario of the beaten up black guy, the legislature has done all it can do by passing a law against beating people up. So this isn't a case where there is no law. The police and attorney general are deliberately undermining that law by refusing to prosecute under it when they don't like the person who has been harmed.

Just as one replaces sorry legislators who don't do their job, one replaces sorry executives. I still have difficulties with replacing public officials for delinquency. There is always the possibility of a writ of mandamus, which is the legal equivalent of the judge saying "do your damn job!," and in that case, there is wide discretion for remedies but with a high standard of deference to the official. But even with that remedy (which wouldn't be under the 14th Amendment), I would want to limit it to cases that leave no real discretion, and one still has to appeal to some positive law, not merely inaction.

In fact, in our other discussion on Zippy's blog of positive law and authority, I would have taken the position that the attorney general is bound by his oaths to uphold the law--to enforce it where it's applicable, as it clearly is here.

It's solely a question of legal remedy. People have all sorts of moral obligations that can't be legally enforced. My point is that it doesn't make much sense to give this sort of cause of action under the 14th Amendment because some private citizen doesn't think the government is doing its "job," whatever that is. Delinquency ought not be the subject of causes of legal action, except in the pathological cases covered by the writ of mandamus.

The question, then, is one of remedy. Your argument is that the remedy must be for the people to use the state's mechanisms to get the negligent enforcers out of office and _must not_ be in the federal courts in the form of arguing that they have failed to provide to the person whose beating was ignored the "equal protection of the laws." I can certainly see serious practical and prudential problems with having the federal courts monitor the application of the laws of the states--what is and isn't prosecuted, the police procedures.

It's more than a practical problem by my lights; it's a problem of principle. It seems wrong in principle for any individual to command the democratic power when it chooses not to act. Certainly, it's possible to correct wrong actions, but this is one case (formal positive law) where the act/omission distinction seems paramount. In cases of delinquency, there ought not be power to compel action under the 14th Amendment, which was intended to limit and correct formal acts of state authority.

One question I would have is what the writers (or audience, if you're a textualist) of the 14th Amendment would have said about this sort of scenario, especially if it took the form of treating former slaves in this fashion and was therefore closely related to the immediate occasion of the amendment itself.

You don't have to go any farther than Section 5: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." The idea in mind was that there would be federal law mechanisms and federal enforcement for combatting official (de jure) action. And certainly, if there is a positive cause of action created by federal law, then I have no trouble with the state being subject to such action. The question then becomes how broad the enforcement authority should be (viz., should it be limited to race? should it be limited to de jure discrimination?).

In parallel, there was some judicially created authority to correct de facto racial discrimination in the cases you identified. This was the "badges of slavery" analysis under the 13th Amendment and the provision of remedies for past de jure segregation under the 14th (Brown v. Board of Education). There was also the question of "suspect classes" subject to 14th Amendment scrutiny, which now acts as a hard limit on Congress's authority to create causes of action (injunctive relief is available, but money damages are barred under the 11th Amendment unless a judicially-identified "suspect class" is involved).

Ideally, I think this should have gone exactly backward. The judiciary should have done nothing; Congress should have had broad authority to determine how to forbid discrimination subject only to judicial scrutiny as to whether the power fell within Section 5 authority (to prevent the 11th Amendment from being abused). The judiciary, seeing considerable injustice, wanted to correct it, but I think the cure was worse than the disease. The need to manufacture a source of judicial authority to allow review effectively put the judiciary in the lawmaking business, where Congress would have had much more expertise. Impatience in the face of injustice is understandable, but to some extent, we also have to uphold doing things the right way (which is where I disagree with Zippy; one cannot typically sacrifice the positive law even to moral imperatives as important as human life). I see the same trouble in your analysis. It is wrong, no doubt, for delinquency by officials to harm particular groups, but does the solution uphold sound principles of democratic sovereignty? It does not appear so to me; it comes far too close for an individual compelling the collective use of democratic authority.

If there is a law explicitly protecting everyone who doesn't have a Y chromosome from being beat up, and that is the only law which protects people from getting beat up, then there is no law against beating up people with Y chromosomes.

All laws draw distinctions (create classes), so the question is really whether the distinctions are drawn fairly. One doesn't judge "law" by the presence or absence of some enactment, but by the distinctions it draws. In effect, the law creates a class of punishable people (those who beat up people who don't have Y chromosomes), and the question is whether this positive act draws classes irrationally. "There's no law against it" misstates the situation, because there IS a law against drawing the classes this way, i.e., the 14th Amendment. The application of that law may mean that there is, in fact, a prohibition of beating up people with Y chromosomes, even though the statute in question does not provide it. Positive law includes more than the wording of any particular statute; it is an entire system of democratic authority.

...because there IS a law against drawing the classes this way, i.e., the 14th Amendment.

That feels a bit question-begging though, because it isn't clear that the 14th amendment means anything univocal when construed as a broad rule covering all possible distinctions that a government might make through the positive law. That is, I am perfectly fine with viewing the 14th amendment as meaning "you states don't go being unfair now"; but I am not sure that such an interpretation has any "teeth" as positive law distinct from natural law when the rubber meets the road.

Positive law includes more than the wording of any particular statute; it is an entire system of democratic authority.

If "positive law" by definition means everything that one (whomever one is) ought to do in the context of the present system of public authority then this move seems (like the construal of the 14th amendment as meaning "be fair when you discriminate") to be one of defining controversy out of existence. I'm more than a little tempted to view it as a concession to the natural law view rather than a refutation of it.

I've always wondered how Congress was supposed to carry out the Section 5 enforcements. How does the federal govt. enforce such things against the states? Is it just a case of sending in the federal marshalls or something to make them desegregate the schools, but doing that on Congressional rather than court authority?

I'm a little surprised that you shd. be so hesitant even to vote people out of office for negligence. I understand some cases can be grey, but sometimes (as in the case I give)it can be blatant. And I would regard that as the flip side to my position on authority--if you take on an executive position, you're bound to enforce the laws. If you don't, _somebody_ ought to call you on it.

I suppose that as far as rational/irrational distinctions, it's a case of choosing your poison. I'm somewhat inclined to prefer to have judges decide whether something would have been regarded as active and manifest harm in the 18th century and whether, now, some state law is protecting one group of people against it but not others, than to have judges decide which distinctions are "irrational" uberhaupt. But you're going to end up with trouble either way. Maybe Bill was right that repealing the 14th is best of all! :-)

That feels a bit question-begging though, because it isn't clear that the 14th amendment means anything univocal when construed as a broad rule covering all possible distinctions that a government might make through the positive law. That is, I am perfectly fine with viewing the 14th amendment as meaning "you states don't go being unfair now"; but I am not sure that such an interpretation has any "teeth" as positive law distinct from natural law when the rubber meets the road.

My point was that positive law and natural law are separated only by false dichotomy. The power to create positive law originates in the natural law. That's what I find troubling about the assertion you made regarding making political decisions "primarily on moral grounds rather than on technical or technological grounds." I think that the natural law tells one to make decisions primarily on technical or technological grounds, because that is the reasonable thing to do. Given the number of human actions taken in a day subject to some or another law, the number of cases that are simply resolved under the positive law is astronomical. Except in extremely rare cases (which I essentially considered to be cases in which the government itself is sufficiently illegitimate to justify revolution), following the positive law as crafted on technical or technological grounds is the primary moral obligation, with the exceptions coming only in the cases in which one has an absolutely compelling reason to do otherwise. And it isn't clear to me even that life issues are sufficiently compelling in that regard, as with the case of St. Thomas More consenting to his own completely unjust execution.

I've always wondered how Congress was supposed to carry out the Section 5 enforcements. How does the federal govt. enforce such things against the states? Is it just a case of sending in the federal marshalls or something to make them desegregate the schools, but doing that on Congressional rather than court authority?

Exactly. The courts would supervise the legislative/executive action of course, but the enforcement mechanism would not be through judicial fiat, but through directly authorized federal enforcement. Judicial order has always been a feeble enforcement mechanism anyway, since Andrew Jackson's infamous remark regarding the Cherokees: "John Marshall has made his decision; let him enforce it now if he can." Nor did desegregation actually take place until federal resources were devoted to it. So what sense does it make for the judiciary to lead the way?

I'm a little surprised that you shd. be so hesitant even to vote people out of office for negligence.

I must have said something misleading, because that is exactly the opposite of my intent. I think they should be voted out for negligence. I just don't think the courts should be involved in the process, with the possible exception of a writ of mandamus for manifest derogation of a clearly mandated action.

I suppose that as far as rational/irrational distinctions, it's a case of choosing your poison. I'm somewhat inclined to prefer to have judges decide whether something would have been regarded as active and manifest harm in the 18th century and whether, now, some state law is protecting one group of people against it but not others, than to have judges decide which distinctions are "irrational" uberhaupt.

The real problem I have is that there isn't any reason to think that the authors of the 14th Amendment had preventing "active and manifest harm" or any other positive action in mind. The reason I don't like it is precisely because you would be asking judges to engage in a work of historical fiction. If the question is what "equal protection" meant in the 18th century, then it certainly was not about preventing "active and manifest harm." It was about drawing distinctions in law based on race; that is what it was intended to prevent. With regard to state delinquency in the manner you described, that's why they put in a federal enforcement provision. Congress has some latitude to say what equal treatment requires de facto, with the only explicit prohibition being de jure race distinctions.

At least "irrational" has the virtue of having some relationship to the historical purpose, albeit with a ridiculously overbroad view of the mandate of judicial power being granted. The notion of the 14th Amendment demanding some sort of positive protection appears to be both ahistorical and contrary to democratic principles. One of the wonderful aspects of U.S. federal government is that it recognizes extremely few positive obligations, all of them being restrictions based on some positive action the state has already taken (e.g., the Sixth Amendment right to counsel). It seems like reading that back into the 14th Amendment would be a far more revolutionary change even than the current judicial review.

That's what I find troubling about the assertion you made regarding making political decisions "primarily on moral grounds rather than on technical or technological grounds." I think that the natural law tells one to make decisions primarily on technical or technological grounds, because that is the reasonable thing to do.

That is the reasonable thing to do up to the point where the positive law commands something immoral; at which point it becomes the unreasonable thing to do. (That you see revolution as justified or even required at that point is an incremental addition to your theory above and beyond mine). And in any case my earlier comment which you quote was addressing political decisions in general not the specific role of the judiciary. Are you really saying that political decisions in general should be made on technical grounds rather than being grounded in what is right and wrong? Or did you misread me?

Jonathan: would you summarize your view of the meaning of the 14th to be "the states must be fair, and Congress has the power to make sure they are fair through appropriate legislation"? Or would you say that it means "the states shall not make legal distinctions based on race, and Congress has the power to enforce this through appropriate legislation"?

Either way the present state of 14th amendment conlaw is illegitimate, I suppose. But I'm not clear on which of these (or some other) you are supporting.

Sorry for the multiple posts, but I have yet another question for you, Jonathan. You keep bringing up St. Thomas More (starting in the threads over at my place) as if his execution somehow undermines something I've said somewhere in our discussions of natural law. I have no idea - literally, absolutely no idea - why you think that. Are you under the impression that St. Thomas More did something which violated the natural law (by omission or comission) in the period leading up to his execution?

I tend to think that by the time we get to "irrational" distinctions, we've stretched the connection to the historical purpose (granting for the moment that you're right, Jonathan, on the historical purpose) so thin that it's sort of like a bit of cobweb. Maybe already broken.

What's frustrating me as a totally amateur conlaw buff is that I researched some of this years ago and didn't make notes. I seem to recall some case in the late 1800's that was taken to refute my notion that the 14th Amendment could require positive action by the states to protect people equally, but I can't recall what it was. I thought perhaps you'd bring it up spontaneously but am forced to ask you directly for the more direct historical evidence to refute me that I fear is out there. :-)

Check out the material here.

Thanks, Stuart. I've been glancing over that material _very_ quickly. It certainly seems messy. On the one hand, there is reference to state laws which were apparently confiscatory against blacks--this would fit with Jonathan's notion that the amendment refers only to unequal state action. On the other hand, there are some more sweeping-sounding statements saying that whatever protections the state laws give to "life, liberty, or property" for the black man they should also give to the white, which seems to support my idea more. There are also references to "all persons" rather than just to black and white.

One cannot avoid the feeling that perhaps the architects of the amendment were not themselves absolutely clear on the scope of the protections afforded.

One thing I have learned in quotes from Bingham (I don't know if they are on the page linked) is that apparently the incorporation doctrine is better referred to the "sleeping giant"--the privileges or immunities clause--rather than to any other part of the amendment.

That is the reasonable thing to do up to the point where the positive law commands something immoral; at which point it becomes the unreasonable thing to do.

My point is that following the positive law for the sake of doing so is often moral even when the action itself in the absence of positive law would be immoral. In other words, it is possible for the murder of an innocent to be a moral action, for example, if it is done pursuant to a legal procedure that produces social good on the whole. Say you know to a moral certainty that someone being executed is innocent, you testified to that fact, but the jury didn't believe you. In that case, even though there is a moral right and even an obligation to defend innocent lives, it would actually be morally incorrect to assert one's right to defend the innocent life. If you lose in the political process in a legitimate matter of state's governance, then you have given up your right to protest the determination, even if wrong.

That is the lesson I take from St. Thomas More. It is at least attributed to him that he told the executioner to do his duty, even though he knew with an absolute certainty that he had done nothing worthy of execution. If it were not right to execute duly convicted people even who were morally innocent, then it would have been immoral for him to exhort the executioner to do his duty. To some extent, therefore, the state has the authority to define positive boundaries even on moral imperatives.

Are you really saying that political decisions in general should be made on technical grounds rather than being grounded in what is right and wrong?

I am saying that, as a general matter, it is the right thing to do to make political decisions on technical grounds. Politics is an art, techne, and it ought to be performed technically, with matters of "right" and "wrong" rarely entering directly into the analysis. The primary concern of politics is the construction of reasonably well-functioning social structures, just like the primary concern of architecture is to design reasonably well-functioning physical structures. It is no less absurd to try to make the political structure accountable to every individual ethical imperative than for the architect to be made accountable to the aesthetic preferences of anyone who uses the building. Unless the error is such that the building is going to collapse, there has to be some degree of tolerance and deference even to mistakes. One does not evacuate the building because one door doesn't close properly. So the correct answer is that the positive law CAN override individual moral imperatives where its authority is legitimate, and I would even go so far as to say that ordinarily the positive law overrides individual moral imperatives. The only exception in which one might appeal to one's own determination of what is "right and wrong" is an area in which the state lacks moral authority to make a decision and thus to override your individual determination. Politics is not ethics any more than medicine or physics. Ethics is a higher science and generally suides the practice of these fields, but the practice of the art of politics itself has a different formal object.

Back to the 14th Amendment... :)

Or would you say that it means "the states shall not make legal distinctions based on race, and Congress has the power to enforce this through appropriate legislation"?

I would instead word it like this: the states shall not make legal distinctions based on race, and Congress has the power to take positive action (effectively, a parallel system of remedies) where a state's enforcement of its own laws is delinquent with respect to race.

I thought perhaps you'd bring it up spontaneously but am forced to ask you directly for the more direct historical evidence to refute me that I fear is out there.

I guess I'm not entirely sure what would qualify. I'm still confused about whether you are talking about positive obligations or simply equality in the positive laws the state has already passed. What I'm having trouble with identifying is any example in which a positive obligation to protect rights has ever been imposed on a state government outside of some provision that it has already made. For example, the criminal justice system requires defense attorneys, prisons require medical care for inmates, etc. But I have never heard of any blanket obligation to positively secure any right to all people.

Such positive provision for rights has traditionally been viewed as a "political question" left to the discretion of the elected branches and beyond judicial scrutiny. Take, for example, how the guarantee of republican form of government and protection of states from domestic violence is explained by the Supreme Court. What I'm having trouble understanding is how the principle that states have a judicially enforceable positive obligation to protect the rights of its citizens generally can be grounded in American jurisprudence, irrespective even of the particular application to the 14th Amendment. It seems to me that courts review what state and federal governments have done; they do not ordinarily impose obligations on governments except in the context of holding the government to its own previous decisions. It would seem that one has to establish this background before attempting to interpret the historical meaning, lest the reading be dangerously out of context. Maybe if we can fill in where the principle originates, it will be easier to explain why I consider such a principle implausible. I tend to think that the architects of the Amendment weren't explicit because they simply took for granted this entire body of jurisprudence that political questions on how rights were to generally be protected were not justiciable.


Well, my idea (which may, as you say, be historically wrong) is that the state would originate a problem when it did have a law that ostensibly protected people from some active harm but where--to take one type of fairly clear-cut example--the law was expressly limited to one group of people and deliberately gave lesser protection *for* that harm, which the state itself evidently recognized as harm, to a different group. So take murder: The state has all these laws against murder, so apparently the state legislators recognize the importance of protecting people from murder. But then the state (I'm imagining for the sake of illustration) writes a law that provides an exception so that if you smother your two-day-old infant, you aren't covered by the usual laws against murder but rather can *at most* get four years imprisonment even if you would have gotten some entirely different penalty had you done the same thing to (say) your 40-year-old husband when he was asleep.

So the idea is that the federal court isn't just making up laws against murder, making up protections for every imaginable harm and requiring the states to provide them. The state already has a law against murder in this scenario, but only for some people. The federal court would just be saying, "If you are going to protect persons against that, you have to protect all persons equally against that." As I emphasized earlier, if the state simply had no law against a certain type of harm and left everyone to fend for himself in that area, that state of affairs wouldn't be litigable. So to that extent, the states' own legislation is driving the train.

If it were not right to execute duly convicted people even who were morally innocent, then it would have been immoral for him to exhort the executioner to do his duty.

I think that either this is a complete nonsequiter or that you've made a very large number of assumptions which you haven't made explicit.

Politics is an art, techne, and it ought to be performed technically, with matters of "right" and "wrong" rarely entering directly into the analysis.

Wow. I couldn't possibly disagree more. The whole business of (legitimate) politics is the common good. To me this is like saying that Microsoft should run its business by focusing on facilities management, and matters of software and customers should rarely directly enter into the analysis.

And here I am always trying to tell Zippy and other natural law buffs that we nasty positivists aren't opposed to discussions of right and wrong, that we're all in favor of them, but that we want them to take place in the legislative chamber.

I still think that. So as far as I can tell, I'm with Zippy on this one concerning how much right and wrong should enter into politics. I would be a lot more sympathetic to the technical emphasis insofar as we are talking about legal interpretation and application, but not for politics uberhaupt.

So take murder: The state has all these laws against murder, so apparently the state legislators recognize the importance of protecting people from murder. But then the state (I'm imagining for the sake of illustration) writes a law that provides an exception so that if you smother your two-day-old infant, you aren't covered by the usual laws against murder but rather can *at most* get four years imprisonment even if you would have gotten some entirely different penalty had you done the same thing to (say) your 40-year-old husband when he was asleep.

I was trying to create a common conceptual framework for this example and the one of state government negligence, but let's take this case separately. My point would be that the rationale, if any, for judicial intervention would have to be that the state had provided some right on an unequal basis. If the only unequal basis for protection that is suspect is race, then this law could at least be defensible under any number of reasons, at least under rational basis scrutiny. What is wrong with the inequality here? Why can't the law rightly draw distinctions between 40-year-old husbands and two-day-old infants?

What seems to be bugging you is that the protection of life is involved. If that is the case, then I would rather simply say that where the protection of the enumerated rights (life, liberty, and property) common to all humans are involved, then the distinction is presumptively impermissible absent (to make up a standard) "an articulable and justifiable relationship to the reasons for the right," effectively making equal protection a matter solely for the sorts of laws that protect those rights. But then, I think you end up in the same place as present equal protection jurisprudence, because that term "liberty" is going to give someone broad authority to interpret what rights are being protected. So even if you don't impose a positive obligation to do something (as in the case of punishing state delinquency), you're still left with the problem of "liberty" allowing heightened judicial scrutiny. And I just don't see any good way to limit "life, liberty, or property" to protections against physical harm. It's broad language, so it necessarily will confer broad latitude on whoever has the power to interpret it.

Consistent with the language of the Amendment, I can only see two ways to limit its scope: the classes with respect to which laws must be equal, and the interests protected by the law. Your example clearly broadens the classes from just race to age, so I'm trying to come up with a justification within the language of the Amendment for limiting the sorts of interest to physical harm. That's where I'm coming up empty. Any ideas?

Well, what's bugging me is that the law against deliberate murder appears to arise from the idea that it's wrong to do such-and-such active harm to innocent people, but the lesser penalty for 2-day-old infants appears to imply that they do not have equal human status to be protected against that harm which the other law acknowledges to be a harm from which persons should be protected. I'd say something similar about a law against assault and battery which expressly exempted from prosecution assault and battery against people with Bush stickers--a Bush Derangement Syndrome law for popping the guy in the nose even if you didn't kill him.

The thing about liberty is that my _idea_ was that the application would be limited to cases where direct and active assaults on physical liberty were in view--kidnaping, unlawful restraint. So a violation would be saying that you can't kidnap and lock up people _except_ that you can, without fear of prosecution, kidnap and lock up your professor if you're mad about your grade (for example). Whether this has any historical basis or not is, however, much in question I gather.

I'd be interested in an example of what you had in mind when you said this: "Congress has the power to take positive action (effectively, a parallel system of remedies) where a state's enforcement of its own laws is delinquent with respect to race." I gather you don't mean something like desegregation, because the state might not have laws requiring desegregation. How would this look? I understand you can send federal marshalls to make them let the black kids into school. How do you send federal marshalls to make them prosecute non-delinquently with respect to race? (This was why I suggested Congressional threats of loss of funding, but it sounds pretty puny even to me.)

I think that either this is a complete nonsequiter or that you've made a very large number of assumptions which you haven't made explicit.

Then let me flesh it out. Let's take a simple syllogism.
(1) Killing innocent people is morally wrong.
(2) St. Thomas More was innocent.
(3) Therefore, killing St. Thomas More was morally wrong.

That conclusion appears to be wrong, because this would entail Sir Thomas instructing the executioner to do something morally wrong. So there must be a distinction not being drawn here. One is, in this case, following orders for the sake of a good, even though the individual case is obviously evil, because the practical morality of politics necessarily excludes dealing with cases on an individual basis. One is sacrificing the good in the one case for the greater good of social order.

Wow. I couldn't possibly disagree more. The whole business of (legitimate) politics is the common good. To me this is like saying that Microsoft should run its business by focusing on facilities management, and matters of software and customers should rarely directly enter into the analysis.

No, it's more like saying that Microsoft should deal with the collective market for computer products rather than trying to make the computer that is perfect for every individual's needs. Likewise with Microsoft's business practices, Microsoft should generally have the choice of what consumer protections it will provide, etc. Just as engineering design and business decisions involve tradeoffs, so does politics.

I would be a lot more sympathetic to the technical emphasis insofar as we are talking about legal interpretation and application, but not for politics uberhaupt.

I just don't see how one can practically separate the two. You draft laws to be legally interpreted and applied. Moreover, there has to be some process for reconciling different concepts of right and wrong so that laws can be deployed toward any goal (if you can unanimous consent, then state authority is thoroughly unnecessary). The cost of being able to do anything is that some other person's concept of right and wrong comes into the process. I just don't see how right and wrong on the individual level is all that helpful in terms of determining what is politically possible. And I don't see why one's personal morality is ordinarily a cause for disobeying whatever the result of the lawful government happens to be.

I didn't say anything at all about disobeying. The whole question of civil disobedience is another topic altogether. I just said we (by which I mean the legislatures contemplating laws) should discuss right and wrong when deciding on laws. Many laws anyway. Of course, there are also plenty of laws that by their nature have little to do with right and wrong directly and more to do with sheer practicalities.

Even a "practicality" is only practical with reference to some good though. At no point does the authority of law become disconnected from the objective good that the law serves. That is, the moment it becomes disconnected it ceases to be law, because the authority of law is first and foremost moral authority. We obey the law because we should obey the law; because obeying the law is good. The moment we cease obeying the law for that very reason (even if we obey it for some other reason) we become criminals in disposition if not practice.

We drive on the right because it is good for traffic to be orderly and safe, and in order for it to be orderly and safe it is necessary to have authoritative conventions set by the public authority -- even though those authoritative conventions could be other than what they are and still serve the good. Often the evaluation of these things involves many different considerations; but the moment the law "disconnects" from the good it purports to serve it is no law at all, since it does not morally command assent.

what's bugging me is that the law against deliberate murder appears to arise from the idea that it's wrong to do such-and-such active harm to innocent people

That's where I think we're getting crosswise. I don't think laws "arise from" anything but sovereign acts of the people. The reason there is a law against murder is that the sovereign had the political wherewithal to formally promulgate one. That's the only way the state actually does anything. The exceptions must be judged according to the same standard that we judge anything the state does. And I would accord that action a high degree of deference.

... but the lesser penalty for 2-day-old infants appears to imply that they do not have equal human status to be protected against that harm which the other law acknowledges to be a harm from which persons should be protected.
...
The thing about liberty is that my _idea_ was that the application would be limited to cases where direct and active assaults on physical liberty were in view--kidnaping, unlawful restraint.
...
Whether this has any historical basis or not is, however, much in question I gather.

OK, so the idea is that equal protection applies to those laws for which all humans ought to be equal, and you're saying that protection from direct and active assaults on physical liberty are pretty much the only cases where humans have more or less equal claims to entitlement, assuming that the state actually passes them. But that's where I have the most difficulty with the "spontaneous law" principle. The state is crafting laws that it can actually enforce, and if it decides to make enforcement more feasible by excluding some class that is difficult or expensive to protect, then that seems like a classic matter of state discretion. Effectively, you're saying that there ought to be a spontaneous law requiring enforcement against murderers of two-year-olds on moral grounds, and apart from the state binding itself to do so, I don't know where it comes from. Of course, there is then the matter of whether the 14th Amendment actually meant to bind the states to just that, but I just don't see any evidence for this being the case.

I gather you don't mean something like desegregation, because the state might not have laws requiring desegregation.

No, but the state provides services, and Congress ought to have the right to pass (and enforce) a positive law requiring educational services to be provided to all citizens regardless of race. In that respect, I think the 14th Amendment WAS intended to allow Congress to create obligations on states through positive lawmaking, effectively to override state sovereignty and to impose obligations on states, just as states can simply override municipal governments.

How do you send federal marshalls to make them prosecute non-delinquently with respect to race?

You probably don't. You pass a federal law against murder and prosecute them yourself in federal court.

I don't think laws "arise from" anything but sovereign acts of the people.

I am having a difficult time reconciling that to what you said earlier:

"My point was that positive law and natural law are separated only by false dichotomy. The power to create positive law originates in the natural law."

I think part of the problem may be where you say "anything but".

I just said we (by which I mean the legislatures contemplating laws) should discuss right and wrong when deciding on laws.

Yes, definitely, that is part of the political process. My point is that this takes place in the context of the political process and not in the form of some external criterion to which the political process is obligated to rise. In other words, this is not some additional standard to judge the political process; ordinarily, it just is the political process.

I think part of the problem may be where you say "anything but".

I don't see that as a problem. Sovereignty is a power to create positive law that originates in the natural law, but there is no such thing as a natural exercise of this power. I think the trouble is here:

That is, the moment it becomes disconnected it ceases to be law, because the authority of law is first and foremost moral authority. We obey the law because we should obey the law; because obeying the law is good. The moment we cease obeying the law for that very reason (even if we obey it for some other reason) we become criminals in disposition if not practice.

The trouble that I see is that the moral authority is not the authority of the law itself, but the authority of the sovereign that promulgated the law. In other words, you don't get to second-guess the sovereign, because the moral order dictates that there ought to be a sovereign to make prudential judgments on behalf of the common good, so one's moral obligation is to uphold that system in the absence of a compelling moral reason to the contrary. If the sovereign makes an error in judgment, then you're bound to respect the error, even while working to change it. I can't think of any real cases in modern America in which that obligations is vitiated. Even unjust wars, capital punishment, and torturous interrogation techniques (assuming they are lawful under the positive law) don't strike me as being sufficiently unambigious to create a right to deny the sovereign's authority, meaning that they have to be followed even if objectively morally erroneous.

Sovereignty is a power to create positive law that originates in the natural law, but there is no such thing as a natural exercise of this power.

I have no idea what that means.

In other words, you don't get to second-guess the sovereign,...

It isn't that I get to second-guess the sovereign, it is that when he tells me to do evil I must second guess him. The alternative is that when the sovereign commands me to do evil I have a moral obligation to do evil. That isn't merely wrong, it is self-contradictory.

I can't think of any real cases in modern America in which that obligations is vitiated. Even unjust wars, capital punishment, and torturous interrogation techniques (assuming they are lawful under the positive law) don't strike me as being sufficiently unambigious to create a right to deny the sovereign's authority, meaning that they have to be followed even if objectively morally erroneous.

Also, I think you are being ambiguous with the term "followed". If you were ordered to execute someone you knew with moral certainty to be innocent without a shadow of a doubt, would you do it? (I'm not asking you what you would do if you were the condemned; I am asking you what you would do if you were the executioner).

I agree that actual cases where disobedience of the positive law is compulsory are few and far between in virtually any polity. If that is all you are saying then you aren't really arguing with me. But if what you are saying is that this is never the case in principle then you are arguing with me.

In the threads at my place we left off with us disagreeing about whether a public official -qua- public official can ever in principle be morally required to exercise his power as public official in a way contrary to some particular positive law. I think he can be in principle, you think he cannot, if I understand where we left off correctly. But here you seem to be saying (though you are going back and forth on it) even more: that it is in principle impossible for there to be a moral requirement to disobey the positive law. If you could clarify that you don't think that it would be helpful; it would mean that in substance we only really disagree about what we disagreed about before.

(I might still comment on your posts though, even if I know that we agree on the substantive point that at times we are morally compelled to disobey some particular positive law, because the overall tone of your argumentation might lead readers to think otherwise).

"My point is that this takes place in the context of the political process and not in the form of some external criterion to which the political process is obligated to rise. In other words, this is not some additional standard to judge the political process; ordinarily, it just is the political process."

"I am saying that, as a general matter, it is the right thing to do to make political decisions on technical grounds. Politics is an art, techne, and it ought to be performed technically, with matters of "right" and "wrong" rarely entering directly into the analysis. The primary concern of politics is the construction of reasonably well-functioning social structures, just like the primary concern of architecture is to design reasonably well-functioning physical structures. It is no less absurd to try to make the political structure accountable to every individual ethical imperative than for the architect to be made accountable to the aesthetic preferences of anyone who uses the building."

The second of these quotations _looks_ like it's saying that politicians, when engaging in the political process, shouldn't trouble themselves too much (however much would be too much) about making the laws answerable to ethical imperatives. The idea seems to be that it's okay to do some moral reasoning as part of the political process but that it won't really be a big part of it, and shouldn't. Have I got that right? If so, I really think that I disagree.

FWIW, I'm in favor of capital punishment but would not have executed More if I knew him to be innocent of any crime worthy of death. Maybe More's point was that the executioner couldn't have been sure of this.


Back to the 14th: I've been reading the quotes in the chapter linked above about deliberations surrounding the 14th Amendment, and though there is some ambiguity, I have to say that it really looks like *at least* with respect to race, the writers did intend the 14th to prohibit distinctions being made both in the making of laws and in the application of them such that blacks received less active, positive protection than whites. That is, I can't get around the idea that they really thought the 14th Amendment conferred positive obligations on the states. In one case they instance parallel things--laws that punish a black man more for a crime than a white man, and laws that protect a white man from a crime more than a black man--as things prohibited by this amendment. And there is even the phrase "all persons" in one of the quotations--something like "securing the protection of life, liberty, and property to all persons." I don't have time at the moment to go and cut and paste the stuff. The author's point is that the 14th did not secure political privileges like voting but rather protection to life, liberty, and property. This actually seems correct to me, as voting privileges were expressly accorded to blacks in a separate amendment. But the quotations from the deliberations are useful for purposes of this discussion, too.

If you were ordered to execute someone you knew with moral certainty to be innocent without a shadow of a doubt, would you do it? (I'm not asking you what you would do if you were the condemned; I am asking you what you would do if you were the executioner).

If I were the executioner and I didn't think that I would be too emotional to perform my duties in a reasonable manner, then yes, I would. It seems that we're missing a threshold inquiry, which isn't "is this act of the sovereign a mistake?" The question is "is this a mistake in an area that the sovereign has the authority?"

The idea seems to be that it's okay to do some moral reasoning as part of the political process but that it won't really be a big part of it, and shouldn't. Have I got that right? If so, I really think that I disagree.

I am saying that in most political systems, there isn't any great dispute about what right and wrong is; it's all a problem of deployment of state resources (and priorities) in terms of how that good is to be achieved. Decisions between competing goods, for example, are not decisions between right and wrong; they are decisions between good and better. There is almost never a "right answer" in those cases, no utilitarian optimization criteria, because even "wrong" political actions achieve some kind of good in the overwhelming number of cases. Apart from a few pathological cases (abortion being the most glaring), right and wrong just obscures the fact that it's a question of balancing a number of goods.

That is, I can't get around the idea that they really thought the 14th Amendment conferred positive obligations on the states. In one case they instance parallel things--laws that punish a black man more for a crime than a white man, and laws that protect a white man from a crime more than a black man--as things prohibited by this amendment.

I've actually thought of a counter-example in the area that might be helpful. Consider laws against sexual assault that punish offenders considerably more severely if the victim is a child under 12. By your standard, that denies equal protection of the laws to rape victims over 12, so it should be presumptively unconstitutional. On the flip side, punishing a juvenile offender less than an adult would also be presumptively unconstitutional. What would be the purpose of imposing a positive obligation to remove these distinctions?

It seems that the examples are being manufactured in order to justify the general concept that, if murder is illegal, somebody ought to do something about babies being killed (although one might argue that Baby Aiden was actually being given extra protection against unwanted medical care, which is an assault!). From a moral perspective, I agree. From a legal perspective, this notion of compelling an exercise of sovereign power to accomplish the end is extremely troubling. I am extremely hesistant to commit to the notion that, because the state has committed to protect anyone from a specific, active, and manifest harm that the state has obligated itself to protect everyone equally. And I would carry that objection to such a use of equal protection generally, even over and above the broad class of cases you are scrutinizing. Imposing an obligation of equality is ordinarily an extremely poor way to produce justice in individual cases.

I think your juvenile offender example is a very interesting one. Originally I wasn't thinking about the "punishing different classes of people differently" situation so much as the "protecting different classes of people differently" situation. The former came up in the course of my reading the quotations from the discussions of the 14th Amendment. Obviously, the reasoning behind the differential punishments is the notion that minors are less responsible for their actions than adults--the idea of some sort of legally definitional diminished responsibility which doesn't have to be argued on a case-by-case basis. I suppose one could argue that this doesn't amount to unequal protection because of the presumption of lesser moral responsibility--that is, that everyone with equal presumed moral responsibility is being treated equally. But that sounds somewhat jesuitical.

In the case of child sexual assault, I wondered, are you talking about statutory rape laws? Those, of course, just involve the legal claim that by definition sex with a person under a particular age _is_ rape, so it isn't really a matter of punishing this person or that more for rape but a matter of defining "rape."

But I suspect that you are saying that there are other laws, not just statutory rape laws, that impose greater penalties upon those who commit sexual assault against children under twelve. Is that right? If so, that's a very interesting counterexample and one I'll have to give some thought to. You may be right that that is simply a counterexample.

On the other topic, I actually don't agree that abortion is such an exception as all that. There seem to be an awful lot of other things that people are wanting to legalize (or fund) or have legalized as part of the culture wars that will, if you're a legislator, involve directly, blatantly, and crucially moral discussions--euthanasia, lowering the age of consent for sex, homosexual adoption, suicide, funding of condom distribution in domestic and foreign programs, no-fault divorce, prostitution, pornography, and on and on. Lots of stuff. It's not like virtually all openly moral debates that affect politics are largely moot because everyone agrees on the relevant matters. Far from it, it seems to me.

Me:
If you were ordered to execute someone you knew with moral certainty to be innocent without a shadow of a doubt, would you do it? (I'm not asking you what you would do if you were the condemned; I am asking you what you would do if you were the executioner).

Jonathan:
If I were the executioner and I didn't think that I would be too emotional to perform my duties in a reasonable manner, then yes, I would.

Wow. I find that to be a stunning admission of the immorality of legal positivism. You would deliberately and personally execute someone who you knew with moral certainty to be innocent? What happened to the intrinsic immorality of deliberately killing the innocent?

Would you perform an abortion if the sovereign ordered you to do it?

But I suspect that you are saying that there are other laws, not just statutory rape laws, that impose greater penalties upon those who commit sexual assault against children under twelve. Is that right? If so, that's a very interesting counterexample and one I'll have to give some thought to. You may be right that that is simply a counterexample.

Yes, those are the sorts of laws I have in mind. I think most states have something of the sort.

Wow. I find that to be a stunning admission of the immorality of legal positivism. You would deliberately and personally execute someone who you knew with moral certainty to be innocent? What happened to the intrinsic immorality of deliberately killing the innocent?

Because the determination of who is and isn't innocent has been properly commended to someone else's judgment with the authority to render binding decisions. "Innocent" must be understood in the context of the state's authority to make the determination. In effect, there's no moral decision to make, because your authority to make it has been ceded. Your moral choice is a proportional one as to whether breaking the law, effectively seizing an authority properly belonging to the state, is justified. That is, I believe, a rare case.

Would you perform an abortion if the sovereign ordered you to do it?

Absolutely not. These have been specifically excluded from the prudential judgment of the state. On the other hand, my exercise of the right to defend innocents is reasonably regulated by the state, so I don't tackle and kidnap people outside or abortion clinics. I don't quibble with people's personal moral imperative to join Operation Rescue (and face the penalties of doing so), but it seems relatively clear to me that there is personal judgment as to whether breaking the law that limits one's capacity to defend innocents is justified. But it seems clear it is not a moral obligation. That's the only reasonable answer that I can imagine giving to the fact that we don't actively prevent genocide of the unborn with force if necessary.

Because the determination of who is and isn't innocent has been properly commended to someone else's judgment with the authority to render binding decisions.

Nonsense. Balderdash. Total, utter crap. In the particular case under consideration, YOU KNOW WITH MORAL CERTAINTY THAT THE PERSON IS INNOCENT BEYOND A SHADOW OF A DOUBT.

That was stated in the question. Maybe you missed that part.

(FWIW, I find this a stunning turn in the discussion because I have a pretty good idea how decent a fellow you are, and yet legal positivism has led you to this conclusion).

The question wasn't whether you as a layman would have a duty to rescue the innocent person about to be executed, so I don't know why you brought up Operation Rescue. The question was whether you would execute the person whom you know with absolute moral certainty to be innocent. To depersonalize it: is it morally licit for an executioner to execute someone whom he, the executioner, knows beyond any shadow of a doubt to be innocent? The legal positivist answer is that yes, it is morally licit for him to do so. As far as I am concerned that is a reductio ad absurdam of legal positivism.

Nonsense. Balderdash. Total, utter crap. In the particular case under consideration, YOU KNOW WITH MORAL CERTAINTY THAT THE PERSON IS INNOCENT BEYOND A SHADOW OF A DOUBT.

No, I didn't miss that part. What you missed is that I also know to a moral certainty that the state has deemed him guilty, which is the morally relevant criterion for whether someone is guilty or innocent. "Innocent" does not mean "JP thinks/knows him to be innocent."

The question wasn't whether you as a layman would have a duty to rescue the innocent person about to be executed, so I don't know why you brought up Operation Rescue.

It is to illustrate that it is possible for the state of the positive law to change one's moral obligations. In a "state of nature," I might well have a personal obligation to defend the innocent, while where that defense has been commended the determination to the power of the state, I do not.

The legal positivist answer is that yes, it is morally licit for him to do so.

It's not a legal positivist answer, because it is fundamentally a moral question as to whether it is a legitimate subject of prudential judgment for the state. The state can't just say anything, but binding determinations on someone's guilt or innocence are within the sphere of the state's competence. It is not opposed to the natural law for the state to have authority in some areas even if it makes mistakes. The natural law (and God's law) commends such determinations to the authority of the state, and that authority is itself not contradictory to God's law; it does not rise to the level of "unjust law." It isn't "contrary to God's law" for the state to have the authority to make that determination, and thus, it does not fall under the rubric of Evangelium Vitae 74: "In order to shed light on this difficult question, it is necessary to recall the general principles concerning cooperation in evil actions. Christians, like all people of good will, are called upon under grave obligation of conscience not to cooperate formally in practices which, even if permitted by civil legislation, are contrary to God's law. Indeed, from the moral standpoint, it is never licit to cooperate formally in evil. Such cooperation occurs when an action, either by its very nature or by the form it takes in a concrete situation, can be defined as a direct participation in an act against innocent human life or a sharing in the immoral intention of the person committing it. This cooperation can never be justified either by invoking respect for the freedom of others or by appealing to the fact that civil law permits it or requires it. Each individual in fact has moral responsibility for the acts which he personally performs; no one can be exempted from this responsibility, and on the basis of it everyone will be judged by God himself (cf. Rom 2:6; 14:12)."

You seem to be excluding the state's positive lawmaking authority itself from the natural law, but that is a power bestowed by the natural law. Part of the moral law is that the state has the authority to make binding moral determinations. Criminal guilt or innocence is one of those matters, provided that the subject matter itself isn't outside of or directly contrary to the state's supervision of public order (e.g., matters of conscience or truth, marriage and conjugal love between spouses -- see St. Valentine, abortion, euthanasia, etc.).

The threshold question is "Does the moral law place this determination in the hands of the state?" If so, you're done with the moral inquiry, because the authoritative determination is made. For example, in matters of crime and punishment, guilt and innocence is a matter for state determination. If you execute someone who is guilty, it isn't killing an innocent; the authoritative moral determination has been made. Likewise in war, the determination of whether a war is unjust is commended to the state. If the state errs, then the moral inquiry is still done, because there has been a binding determination. There's nothing inherently contrary to the natural law to commend some relevant moral determinations to the state rather than the inidividual.

No, I didn't miss that part.

Then whatever theory you are pushing, it is insane.

You seem to be excluding the state's positive lawmaking authority itself from the natural law,...

No, I'm not.

I'm with Zippy on this one. I think the business about placing determinations in the hands of the state is fine until and unless you _know_ the state to be ordering you deliberately to kill an innocent person. The just war issue is, for one thing, _way_ more complicated. It's much harder to imagine a situation where you know to an extremely high degree of rational credibility a war to be unjust than a situation where you know to the same degree that a person is innocent whom you are being ordered to kill directly. And besides, I don't believe in the draft, so I think in an ideal society you have a choice as to whether to join the armed forces and put yourself in the position of having to give up your own judgement on the overall justice of some particular war. And even there, you don't give up your own judgment on war crimes--like torturing or raping a prisoner, for example. Soldiers don't have to obey all orders.

That being said, I have gotten this sort of odd feeling that Catholic moral theory treats "The State" as an entity with powers that I feel strange treating it as. For example, I have read that in Catholic teaching (haven't looked it up in my copy of the Catechism) "the State" can deliberately kill somebody (execution) morally but an individual, even in self-defense or defense of the innocent in some emergency situation, must be able to convince himself that he's killing the bad guy only accidentally. He has to shoot to wound, or believe that the killing is just a double effect of defending the innocent, or something like that. _He's_ just a little ol' individual, so he can't deliberately kill like "the State" can. Speaking as an uppity Protestant, I say that's balderdash, too. Just as you as an individual get to judge that someone is innocent so you _must not_ kill him, regardless of what The State says, so you as an individual (defending your wife against a would-be rapist who is attacking her or something like that) have just as much right as The State to blow an immediate aggressor out of the water. Deliberately.

So I have no idea whether Zippy is right over Jonathan in Catholic teaching, here. Maybe the absolute right to determined juridical innocence really _is_ committed to The State in Catholic teaching.

Then whatever theory you are pushing, it is insane.

I don't view myself as "pushing" the theory. I simply stated the theory I actually hold as a subject incidental to the subject of the thread. I thought it would be hard to understand my objection to regulation of state action without understanding what I perceive state action to be. It's probably not served that cause as well as I would have liked.

That being said, I have gotten this sort of odd feeling that Catholic moral theory treats "The State" as an entity with powers that I feel strange treating it as.

I suspect that may be at the root of our disagreement. I think that much of American jurisprudence is built on that idea as well, at least in the original Constitution. Ideas like "sovereign immunity" very much have the notion of the state as a kind of separate, corporate entity in mind, and much of the law in the area of state officials is about determining whether the person in question was acting in the capacity of this entity or not.

That is a good part of why I balk at the suggestion of any legal imposition that the state has obligations to do things. The notion of compelling this entity to act is jarring at best, since imputing action to the state is inherently anti-democratic (you are compelling the citizens of the state to act without express consent). It seems to me implausible on conceptual grounds that the framers of the 14th Amendment intended to create some broad class of cases in which the state's actions were burdened with some general obligation of fairness, and at any rate, I would be inclined to take a narrow reading of any such obligations. Thwarting positive actions (effectively saying the state had no authority to pass the law) is a very different animal from attempting to modify or extend what the state has actually said. I would only want to do the latter with extremely clear guidelines for when it is to happen, which is why I find the broad inquiry of "specific, active, and manifest harm" troubling. With respect to race, it makes sense. With respect to other classifications (age, in the counterexample), the guidelines seem to be too fuzzy.

I simply stated the theory I actually hold as a subject incidental to the subject of the thread.

Then the theory you actually hold is insane. Sorry.

Lydia: the distinction is between commutative and distributive justice. It is widely held (though not de fide as far as I know) that an individual may never choose to kill an attacker, very much like the notion that a community may never choose to uttery destroy another community. Self-defense and just war are precisely parallel: in individual self defense you may intend to destroy (say) the attacker's arm; in just war you (the community through its representatives, the "competent authority") may intend to destroy the attacker's army. If the attacking person/community is utterly destroyed in the confrontation, it must be per accidens and as a result of the use of proportionate force. An individual may remove a diseased limb when it is necessary to do so to protect the rest of the body; the public authority may execute a criminal when it is necessary to protect the rest of the body, if you will.

Anyway I will hardly say the last word on commutative versus distributive justice here. It is a distinct topic from Jonathan's theory. Jonathan's theory, if it makes it morally permissable to directly kill known-with-certainty-to-be-innocents, stands well outside of Catholic doctrine as I understand it. The public authority (or its representatives) may not knowingly and directly kill the innocent, ever, period, finis. This is never morally permissable.

Zippy's speculations on moral philosophy are always illuminating, and I have great difficulty even imagining how Jonathan is going to escape the clutches of the mad theory he appears to be propounding, but I think it is worth adding this:

All of this moral philosophy ought to be remembered in the context of the mercy of Christ. No sin is beyond the reach of that mercy.

I believe that if I took a man's life in defense of my wife and children, I would still feel compelled to confess it as a sin, on the grounds that it is highly unlikely that my heart was pure. The mere thought of someone, say, entering my home with murderous intent, is enough to put my mind in a very vengeful place indeed.

Along those lines, I simply would like to call attention to the fact that according to Orthodox tradition - and whether the Catholic tradition diverges from this, I cannot say - any shedding of human blood, even if justified, is cause for a period of abstention from the Eucharist. There is a profound wisdom in this, I think, and it assuredly invites us to reflect upon those impurities of the heart.

I have great difficulty even imagining how Jonathan is going to escape the clutches of the mad theory he appears to be propounding

In all honesty, I am not even convinced that I have any reason to undertake the effort. Perhaps that is what you mean.

(Poor Jonathan. He's got me on the one hand keeping on pecking at the 14th Amendment topic and all of us on the other hand on the "executing a known innocent" topic.)

Okay, on the 14th: It seems to me that, perhaps unfortunately, the 14th Amendment already went a long way to undermine the notion of the state as a sovereign and immune from arm-twisting by a higher level of government. I was just studying with my daughter this past year the contortions the courts have gone through to allow the 14th to be enforced against the states in the courts *at all* in the face of the other (11th?) amendment's _clear_ insistence that a state is a sovereign and cannot be sued in court. To my mind the legal reasoning there was ridiculous, in fact, incoherent. There is a pretty clear prima facie conflict there within the constitution itself and a pretty clear undermining of state sovereignty if one takes the 14th amendment seriously at all. But short of repealing the 14th, there's nothing we can do about it.

I take it, Jonathan, that you're now prepared to grant that either the courts or Congress could somehow go "over the head of" a state that made a law that said you get only 4 years imprisonment for killing a black man but the death penalty for killing a white man. Is this right? In other words, when the distinction is based on race, you _seem_ prepared to acknowledge that the state, sovereign or not, can be told that it can't actively protect one person from active harm and not another, that it must protect both equally or neither. So the principle that you can't place active obligations on the state seems to be undermined right there.

I'm prepared, however, to grant that while the writers of the 14th were filled with righteous indignation over the failure of the states to protect the lives of black men, they may have written the amendment in over-broad language ("any person") without thinking of some of the implications they would have rejected for, e.g., giving extra protection to children, as you have brought up. What we're to do about that I'm not sure, because the amendment doesn't _say_ that the obligation not to deny the equal protection of the law is restricted to denials based on race.

(On private, deliberate killing of an immediate aggressor, my own inclination would be to say, "Fine, then _I'm_ cutting this diseased guy out of the body politic, because I happen to be the one on the spot with my Glock when he's trying to engage in harm to another member of the body politic.")

Jonathan,

You have made some good points in this thread, but this "execution of a known innocent" thing has everyone confounded.

It seems like we are obligated as citizens of the State to obey some positive laws that offend us, with the obvious caveat that citizens should be proactive in making their views known to achieve a more accountable government and better informed society. The distinction that seems lost in your contention is that what we tolerate as citizens is wildly different from what an actor for the state must do to carry out an execution. The fact that you know beyond any doubt of his innocence, at a minimum you have a personal obligation to not be involved with compounding the state's error. This has nothing to do with your duties as a loyal citizen, it has to do with your own moral integrity. The state can make demands upon you, in a more or less equal manner to other citizens, but you have an individual obligation to defend yourself against absolute corruption.

Okay, on the 14th: It seems to me that, perhaps unfortunately, the 14th Amendment already went a long way to undermine the notion of the state as a sovereign and immune from arm-twisting by a higher level of government.

I agree entirely. Since it directly conflicts with sovereign immunity as a tenet of common law and the express provisions of the Eleventh Amendment, I think it should be viewed as narrowly as possible.

I take it, Jonathan, that you're now prepared to grant that either the courts or Congress could somehow go "over the head of" a state that made a law that said you get only 4 years imprisonment for killing a black man but the death penalty for killing a white man. Is this right? In other words, when the distinction is based on race, you _seem_ prepared to acknowledge that the state, sovereign or not, can be told that it can't actively protect one person from active harm and not another, that it must protect both equally or neither. So the principle that you can't place active obligations on the state seems to be undermined right there.

I always was willing to grant that in the case of race, but only because it was race and only because the state had taken the positive action of passing a law (including regulations, official policies, court decisions, and other documents promulgated with state authority) that made a racial distinction. In that case, the enforcement by courts seems relatively straightforward, since striking out legal provisions that are contrary to public policy while preserving the rest of the document is something that courts do all the time, and the state is unlikely to be surprised by the outcome, meaning that the effect is unlikely to be seriously anti-democratic, provided, however, that the class of impermissible distinctions has clear and defined limits (such as race). So you are right that I am OK with imposing obligations to rewrite positive laws to remove distinctions with respect to race, precisely because it is a clear and well-defined category.

In cases of de facto distinctions due to negligent enforcement or unintentionally disparate impact, I do not believe that there should be any cause for the courts to impose an additional obligation of equality on the state or to rewrite the laws of the state to produce equality (the current jurisprudence disagrees with me here). I don't think that courts are particularly good at allocating resources to enforcement mechanisms or determining the best way to craft a law so that it will have equal impact in actual practice. I believe in those cases that the federal government should have the authority to pass laws to impose additional positive obligations on the state or to create its own parallel system (probably the former in case of state-provided services like education and the latter in the case of criminal laws that are underenforced). I believe this is what the framers of the 14th Amendment had in mind with Section 5.

What we're to do about that I'm not sure, because the amendment doesn't _say_ that the obligation not to deny the equal protection of the law is restricted to denials based on race.

That's where that word "deny" comes in. "Deny" in the legal context means with respect to a valid legal claim. Particularly given the prior context, it looks as if this guarantee primarily applies to the claims of due process, in which the person has a right to demand of the state some procedural protection against deprivation of life, liberty, or property. I expect that "equal protection" was to make the slightly stronger claim that the rights granted under due process, in addition to meeting certain minimum thresholds, must be given to every person equally (making some allowance for matters like competency, in which case some additional procedure might be required to make people equal for due process purposes). The question is whether the equal protection clause was intended to give claims beyond that, and Bork and I suspect that it was implicitly intended to give somewhat broader scrutiny into substantive laws based on race and to authorize Congress to pass laws for racial equality, although "equal protection" could fairly be read as narrowly as due process protections.

(I have this strange feeling that people will think I'm letting Jonathan off the hook on executing known innocents by continuing to talk about the 14th amendment, but I'm interested in the subject, so here goes.)

Jonathan, I'm tremendously sympathetic to the goal of interpreting the 14th narrowly to preserve what's left of state sovereignty. Of course, on my idea state discrimination in giving handouts or jobs wouldn't come into question anyway, so some sovereignty would be restored in that area.

I think the problem is that we're running into a conflict between two principles: One says to interpret narrowly to minimize the effects of a regrettable intrusion into state sovereignty. The other (one I think is important) is that you shouldn't bring the social _purpose_ of a piece of legislation in to limit the scope of the law's application where the language itself appears on its face to have a broader applicability. That seems to me to be the wrong sort of intentionalism. Intentionalism should have to do with the intended meaning of the words, not the intended goal of the legislation in righting some particular historical wrong. Unless, of course, the words of the legislation are explicitly restricted merely to actions that will right that wrong. An example of this sort of error, I believe, is the court's interpretation of the 1964 Civil Rights Act to apply only to discrimination against blacks, when the language in itself appears to be prohibiting discrimination on the basis of race, period. The court argued that reverse discrimination isn't prohibited under the Act because the intended goal or purpose of the law was to help blacks, not whites. But I'm convinced that, while some of the drafters may sneakily have hoped something like this would happen in the application of the law, others who voted for it (and hence rank as co-authors) would never have done so if they thought it would prohibit anti-black discrimination while permitting anti-white discrimination. And the law never says "against blacks." Similarly, the whole bringing in of "on the basis of race" into the 14th when it never once mentions race seems to me contrived solely on the basis of the original social concerns which prompted the law and the goals it was immediately intended to accomplish. And that just isn't the same thing as original meaning.

In fact, apparently Bingham said that the Amendment would "enable Congress to insure 'that the protection given by the laws of the States shall be equal in respect to life, liberty and property to all persons.'" (I got that from the material someone linked earlier in the thread.) I'm perfectly prepared to admit that Bingham was a fuzzy thinker (you probably know more about all of this history than I do) and didn't think this all through very well, but the "all persons" is right there, just as "any person" is in the Amendment itself.

It occurs to me that, after the manner of the courts with the 1964 Civil Rights Act, if we really want to construe the 14th Amendment as narrowly as possible and are permitted to use its original social concerns as a guide for that purpose, why not construe the 14th Amendment to apply only to state action that discriminates *against blacks*, not to state action that discriminates on the basis of race? That would be construing it even more narrowly. To say that the architects of the amendment would be outraged at discriminatory proceedings against whites cannot be an argument against this super-narrow construal unless you also permit the argument that they would also have been outraged if states passed laws expressly giving nothing but a slap on the wrist for the murder of one group of persons and citizens when the group distinction has nothing to do with race.

I have this strange feeling that people will think I'm letting Jonathan off the hook on executing known innocents by continuing to talk about the 14th amendment...

Given that what I was really thinking was from the position of the convict himself, rather than the reverse, perhaps I should say it this way. I believe that the convict has conceded that his life will be judged by the process in full recognition that if he fails to successfully defend his innocence, the state is going to kill him. In other words, even knowing his own innocence, he concedes that the state has the authority to judge the case, just as all citizens do, that it is a fact of reality that this system will, entirely apart from its intent but in the nature of the process, sometimes execute innocent men. I do not view it as suicide if the man then submits himself to the state's judgment (putting his life in jeopardy for the sake of lawful order), and therefore, I do not view it as an act of murder if an agent of the state then executes this judgment. Like self-defense, the act is defined to some extent by the surrounding circumstances, and one of the pertinent circumstances is whether the person has been duly convicted by a court of competent jurisdiction.

One says to interpret narrowly to minimize the effects of a regrettable intrusion into state sovereignty. The other (one I think is important) is that you shouldn't bring the social _purpose_ of a piece of legislation in to limit the scope of the law's application where the language itself appears on its face to have a broader applicability. That seems to me to be the wrong sort of intentionalism. Intentionalism should have to do with the intended meaning of the words, not the intended goal of the legislation in righting some particular historical wrong. Unless, of course, the words of the legislation are explicitly restricted merely to actions that will right that wrong.

"Appears on its face" is the wrong test, though. Statutes are like contracts; they are written in contemplation of a legal regime of interpretation. The intention should be to communicate to a lawyer or judge the meaning of the law (and perhaps in criminal cases, to serve adequate notice on the public as well). That was the reason for maxims like "Statutes in derogation of the common law must be construed narrowly." The common law was effectively the background assumption of the legal system, and if the legislature purported to change it, they had to be clear about it, or the background assumptions would prevail.

One of those background assumptions was that one interprets intrusions into state sovereignty narrowly. The people writing the 14th Amendment knew (or should have known) that incursions on state sovereignty would be read narrowly, so if they intended it to be read more broadly than the minimal interpretation of the language needed to give their legislative intent effect, then they should have specified this. And given the narrow construction of the "privileges and immunities" clause in the Slaughterhouse cases almost immediately after the Fourteenth Amendment was passed, I think it is more than plausible that the Congress could not have been surprised by such a reading.

The equal protection was then, rightly read narrowly in terms of protection of civil rights in terms of the specific enumerated legal protections falling in that category ("protection of the laws"), not in terms of laws more generally. If you'll forgive the anachronistic language...
"It was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States."
http://supreme.justia.com/us/100/303/case.html

That's a contemporary case, so I think it's a good read on what lawyers and judges at the time were thinking, which isn't much different that lawyers today. A lawyer looks at the phrase "deny equal protection of the laws," and immediately thinks of civil rights, specific enumerated protections defensible by some legal action, not the more general "protection" that the law gives. So I guess what I'm saying is that your use of the term "protection" seems more like "plain meaning" interpretation than how lawyers then or now would have understood it, and this is reinforced by the legal term "deny," which would have also been understood in the context of a specific legal right to request relief.

Now, one can also give a law a little more play in order to give effect to what the legislature might have intended in terms of the legal application even if they didn't say it expressly. That's effectively a case where they hadn't considered the application expressly, but it seems like the sort of case in which the principle behind the law might have applied. If you don't care for that (and it seems you do not), then I think on the intentionalist view, the term "protection" should be given the narrow context of enumerated civil rights that I described. It seems a little unsatisfying that the state could discriminate left and right in any other context, but on the strict intentionalist reading, I think that is the right outcome.

Given that what I was really thinking was from the position of the convict himself, rather than the reverse, ...

That wasn't the question I asked.

That wasn't the question I asked.

I'm quite aware of that, but my answer was compelled by logical symmetry. If it is not morally wrong for the condemned to concede to the execution as a valid exercise of state power (viz., to concede that they aren't being murdered, and therefore, that they have no right to self-defense), then the objective moral quality of that determination can't be overturned based on knowledge, because the condemned is surely in the best position to know the facts if that knowledge were relevant. If it were murder, then the condemned would have a right (or even obligation) to self-defense, but evidently, he does not view himself as having such a right. Therefore, it doesn't appear to be viewed as even being the same kind of moral act as murder, either by the condemned or the executioner, meaning that the moral nature of the act from the perspective of the acting person is objectively different.

I don't think the self-defense thing is really relevant, though, because it needn't be some sort of "acknowledgement that it's okay for you to be killed." It could, rather, spring from the sheer admission that there's not a darned thing you can do about it and that attempts at self-defense will only cause additional mental and physical distress to yourself and possibly your loved ones. I wouldn't fight like a wildcat even if terrorists were about to chop off my head, because it would only get me hurt worse. That doesn't mean I'm acknowledging that the terrorists are doing something okay in killing me. When you're powerless you aren't responsible to fight physically.

Secondly, the accused may know full well that to the outside world the evidence looks decisive. He may admit, with sorrow, that the police aren't evil, the courts aren't evil, the jury isn't evil, that through no one's fault but that of the real murderer, the case against him is very strong. So he may acknowledge that morally the state actors are doing what they understandably believe to be right in executing him as a murderer, and that to try to fight them might be to hurt someone who is not acting with evil intention.

As a third option, the executioner may, as far as the accused knows, have no special access to the accused's innocence. Neither Zippy nor I nor anyone else is saying that the executioner has to turn detective and re-investigate every murder befor executing the person convicted. Even in a case where the state has acted wrongly--say, a corrupt police officer framed you or somebody in power was out to get you--the executioner himself may have no way of knowing this. I take it that _this_ was St. Thomas More's point to the executioner: "Go ahead and do your job. You have no way of knowing that I'm being executed simply because the king has it in for me. You aren't in a position to second-guess all these things. I don't blame you."

But we were imagining a case where you, as executioner, somehow _had_ come into possession of information showing with complete clarity that the person was innocent. That's just a whole different kettle of fish. And if I knew that a given executioner was in that situation, and if I were the accused, I would probably make a verbal appeal to him: "_You_ know I'm innocent. _You_ know this is all a terrible mistake. Can't you help delay this whole thing until a retrial can be called for? You can testify for me! Speak up! Don't do this!"

The perspective of the accused is completely irrelevant, because what I asked was what you as executioner, with perfect knowledge of the condemned's innocence, would do. If the condemned had amnesia or false memory and himself thought he was guilty, and was begging you to execute him as a punishment justly deserved, it wouldn't make a whit worth of difference. YOU know WITH ABSOLUTE CERTAINTY that he is innocent, and YOU are the executioner.

Is it morally licit for you to execute him?

It could, rather, spring from the sheer admission that there's not a darned thing you can do about it and that attempts at self-defense will only cause additional mental and physical distress to yourself and possibly your loved ones. I wouldn't fight like a wildcat even if terrorists were about to chop off my head, because it would only get me hurt worse. That doesn't mean I'm acknowledging that the terrorists are doing something okay in killing me. When you're powerless you aren't responsible to fight physically.

That's just fighting the hypothetical, though, because you could always adjust the hypothetical circumstances suitably. Suppose you have an absolutely identical opportunity to seize a weapon from the terrorist and to seize a weapon from your guards, both of which would lead to your successful escape. Do you really think that blowing away the terrorists and blowing away the prison guards represent the same kind of moral act? That's the analytical problem for me; they really don't seem to be the same sort of act at all, and I'm trying to probe why that is.

Secondly, the accused may know full well that to the outside world the evidence looks decisive. He may admit, with sorrow, that the police aren't evil, the courts aren't evil, the jury isn't evil, that through no one's fault but that of the real murderer, the case against him is very strong. So he may acknowledge that morally the state actors are doing what they understandably believe to be right in executing him as a murderer, and that to try to fight them might be to hurt someone who is not acting with evil intention.

It's not clear to me that this is the least bit relevant. Say that someone who is shooting at you genuinely believes you to be a dangerous thief, trespasser, murderer, etc. (as a further complication, he might be insane in believing this). That's irrelevant for purposes of your right to self-defense, because his understandable-but -incorrect belief that you are an aggressor doesn't give him the right to kill you. You can yell at him that you aren't the guy or do what you practically can to try to protect yourself, but if he keeps shooting at you, you're certainly entitled to shoot back even in recognition that he is probably not acting with evil intention. I really do think there is a difference here between being duly convicted by the state.

As a third option, the executioner may, as far as the accused knows, have no special access to the accused's innocence. Neither Zippy nor I nor anyone else is saying that the executioner has to turn detective and re-investigate every murder befor executing the person convicted. Even in a case where the state has acted wrongly--say, a corrupt police officer framed you or somebody in power was out to get you--the executioner himself may have no way of knowing this. I take it that _this_ was St. Thomas More's point to the executioner: "Go ahead and do your job. You have no way of knowing that I'm being executed simply because the king has it in for me. You aren't in a position to second-guess all these things. I don't blame you."

But we were imagining a case where you, as executioner, somehow _had_ come into possession of information showing with complete clarity that the person was innocent. That's just a whole different kettle of fish. And if I knew that a given executioner was in that situation, and if I were the accused, I would probably make a verbal appeal to him: "_You_ know I'm innocent. _You_ know this is all a terrible mistake. Can't you help delay this whole thing until a retrial can be called for? You can testify for me! Speak up! Don't do this!"

But in fact, he could at least have made a statement to that effect regardless. The condemned is given a right to speak, and you never know if the executioner would not be persuaded. And in the cases of More and Mary, Queen of Scots, it is entirely probable that the executioners knew that someone in power was out to get them, yet neither made such an appeal. Indeed, it works exactly backward, in that he has no certain knowledge that this person does NOT know him to be innocent, so it would seem that the gallows defense would at least be obligatory in defense of the truth. If nothing else, one might emulate Cicero's purported last words to his assassins: "there is nothing proper about what you are doing, soldier, but do try to kill me properly." If nothing else, there would seem to be an obligation to protest one's innocence to the last in the hope that someone's conscience might be awakened.

On the flip side, I think that your proposal that this is a matter of incomplete knowledge does effectively put the executioner in the position of needing to "turn detective and re-investigate every murder" rather than relying on the state's judgment. I actually took for granted that I, as the executioner had done all of the things you listed, which was to exhaust every possible procedural opportunity to present evidence to the contrary, to make every attempt to obtain a retrial or review, to submit all the evidence that could be submitted, and that the condemned had STILL been condemned. I'm not imagining some sort of secret knowledge that was never submitted to any court; I mean the executioner knows something of which the court had been fully apprised and had every opportunity to consider.

The perspective of the accused is completely irrelevant, because what I asked was what you as executioner, with perfect knowledge of the condemned's innocence, would do. If the condemned had amnesia or false memory and himself thought he was guilty, and was begging you to execute him as a punishment justly deserved, it wouldn't make a whit worth of difference. YOU know WITH ABSOLUTE CERTAINTY that he is innocent, and YOU are the executioner.

Is it morally licit for you to execute him?

I believe so. I don't see any compelling reason why this falls within the scope of the acts intended to be condemned by "direct and voluntary killing of an innocent human being." For purposes of the state's authority of life and death, the person is not "innocent," and I see nothing to suggest that this phrase intended to make "innocent" a univocal absolute even to include situations of capital punishment. There are some who take such a strict definition of "innocent" as to say "not an immediate aggressor," but this is controversial, and it is not at all clear to me that the teaching on "direct and voluntary killing of an innocent human being" was intended to resolve such distinctions. In other words, it has nothing to do with positivism, but with a disagreement on the substantive content of the teaching.

(By the way, I'm unconvinced on the 14th. The interpretation I'm seeing here is, to my mind, too ad hoc and cobbled-together. It involves specific rights but only when they are denied on the basis of race. That is, a black man apparently on this interp has a prima facie claim to have his right to life protected, but only when it is denied him on the basis of his race, not if he is not protected on the basis of his being six feet tall. Something apparently only counts as a claimable right if it's being denied on the basis of race, or else the entire thing is just being rewritten implausibly as that "nor deny to any person the equal protection of the laws" means "nor shall the state discriminate on the basis of race either in action or inaction." The whole thing just seems too darned messy and backwards, and race seems dragged in. It would have been so easy to stick "on the basis of race" somewhere in there, but it isn't anywhere to be found.)

Okay, now: Jonathan, do you in fact think that the duty to physical self defense is as great as the duty not knowingly to kill innocents? I can't see that at all. Think of Christ--as a lamb before her shearers is dumb, and all of that. Christian moral teaching permits self-defense but doesn't, as far as I can see, require it in every instance, even when one's life is being taken unjustly. The negative duty--the duty _not_ to take innocent life--seems far stronger than the positive duty--to defend one's own life by force. And that seems correct to me from natural reason as well. The active/passive distinction often proves important in moral reasoning, though it isn't everything. Perhaps I should have said this sooner. So it doesn't follow, as far as I can see, from the fact that it's "okay" not to try to shoot a prison guard, or even that it would be wrong to do so, that it is right to execute a known innocent condemned by the state.

I should also add that I'm not committed to saying that St. Thomas's words to his executioner are some sort of model that must be followed in every instance, as though it would have been wrong for him to speak out in his own defense at the last, hoping to move someone to change his mind.

I'll leave it at that just for the moment.

Me:
YOU know WITH ABSOLUTE CERTAINTY that he is innocent, and YOU are the executioner.

Is it morally licit for you to execute him?

Jonathan:
I believe so.

Well, like I said before, that just goes to show that there is something wrong with your theory.

For purposes of the state's authority of life and death, the person is not "innocent," ...

That's what positivism gets you. Innocence is guilt, black is white, reality is television. And people express wonderment that I see positivism and postmodernism as essentially the same thing.

The interpretation I'm seeing here is, to my mind, too ad hoc and cobbled-together. It involves specific rights but only when they are denied on the basis of race.
...
It would have been so easy to stick "on the basis of race" somewhere in there, but it isn't anywhere to be found.

OK, I clearly need to do a reboot on what it is that I'm saying, because it didn't come across. What I am saying is:
1. The "equal protection" clause by itself was only intended to enforce on the states an obligation of basic procedural rights in civil and criminal cases and basic federal rights. That is what was historically meant by "protection of the laws," and there does not appear to be any considerable doubt about that question (see the bolded language from Strauder).
2. That obligation applies to everyone (i.e., it is not limited by race), although the general sentiment at the time (reflected in the court decisions) was that blacks were the only people at the time who were being deprived of these rights.

If I were being strictly intentionalist based on the language of the Amendment, then I would have to conclude that equal protection was not intended to capture the cases like refusing to prosecute murderers of black men, since this does not deprive anyone of any specific or definite procedural rights. They may have had those sorts of things generally in mind, but I see no evidence in the language of the 14th Amendment itself that it was passed to address them.

From my perspective, you've arrived at the worst of all worlds. The interpretation of "protection of the laws" strikes me as being far broader than the reasonable historical intent, but there aren't any guidelines on how to stray outside the boundaries of strict historical intent of the language. I'm OK with going outside the historical boundaries if those excursions are going to be grounded in some sense of historical purpose (e.g., applying the 14th Amendment to all sorts of laws, but only with respect to racial classifications).

Okay, now: Jonathan, do you in fact think that the duty to physical self defense is as great as the duty not knowingly to kill innocents?
...
Christian moral teaching permits self-defense but doesn't, as far as I can see, require it in every instance, even when one's life is being taken unjustly. The negative duty--the duty _not_ to take innocent life--seems far stronger than the positive duty--to defend one's own life by force. And that seems correct to me from natural reason as well. The active/passive distinction often proves important in moral reasoning, though it isn't everything. Perhaps I should have said this sooner. So it doesn't follow, as far as I can see, from the fact that it's "okay" not to try to shoot a prison guard, or even that it would be wrong to do so, that it is right to execute a known innocent condemned by the state.

It might not require it, but it is certainly permitted, and my trouble is that I can't see any reason it would be wrong to do so, even though it seems that it probably would be. It strikes me as an offense to public order in a way that the case with the terrorists is not, and that is what I would like to get an analytic handle on. Hence the case with St. Thomas More: one might argue that Sir Thomas's statement that he was "the King's good servant, but God's first" was an adequate defense, but even that would not permit him to lie and invite the executioner to perform his "duty" if he did not view it as a duty. His action strikes me not merely as acquiescence in martyrdom, which Christ's own example clearly allows, but a ratification of the positive authority by which the condemnation came, even though it was the same one that was swinging the axe in his direction. St. Paul also appealed to Caesar in his own defense (Acts 25:8-12), even though this was the same government that would eventually kill him.

I'm far from certain of my own argument, but I make it nonetheless, because it seems to me that the teaching regarding taking innocent life is not so clear in this case. I can't see a compelling reason why the executioner must recuse himself, although I certainly believe that he may, albeit facing whatever consequences might ensue from derogation of duty.

That's what positivism gets you. Innocence is guilt, black is white, reality is television.

Look, this is an entirely pedestrian question of Magisterial interpretation as to what "the direct and voluntary killing of an innocent human being" means. It's not clear to me that what you mean by "innocent" is what EV means. If anything, it seems positivist to say that there is one "plain meaning" that is perspicuous to all readers and if we just read what the Pope says, all will become clear. Nor is it clear to be from what I know of the natural law that this question has an obvious resolution.

And people express wonderment that I see positivism and postmodernism as essentially the same thing.

Given that this is a disagreement about what the term actually means in terms of substantive moral theology and given that I specifically endorsed your identification of those two (and even explained why it was the case), I find the charge inapposite. The question is not whether the state can command someone to do something immoral; it cannot. The question is whether what the state is commanding is immoral. It is not clear to me that it is, because it's not clear to me that the moral teaching I know resolves the issue. I've seen a lot of gut-level reaction, but not much argument. Rather than pointing out the monstrosity of positivism, it would probably be more helpful to outline why the moral law necessitates your position, because if I thought the natural law actually contradicted my position, then I would change that position. The question is not about the conflict between the positive and natural law, but about what the natural law actually says in this instance.

It's not clear to me that what you mean by "innocent" is what EV means.

OK, let's make that clear. If you, as the executioner, know with absolute certainty that the condemned definitely did not commit the crime for which he was condemned, is it morally licit for you to personally execute him?

(If I were a positivist I might have asked it this way: "If you, as the executioner, know with absolute moral certainty that the condemned is innocent precisely as that term is used in EV, is it morally licit for you to execute him?" But the word "innocent" does actually mean something, and since I am not a positivist it would take a concerted effort in order to fail to understand what it means, empty it of substantive content, and be reduced to engaging in a formal language game.)

So, re. the 14th, I think I'm understanding now here that the idea is this: A really strict intentionalist should interpret "nor deny to any person the equal protection of the laws" merely to mean pretty much the same thing as the due process clause--that everyone should be given a trial, access to counsel, fair process in some initiated proceeding, etc.--plus, perhaps, incorporation of the bill of rights against the states (to pick up basic federal rights). Therefore, it wouldn't even apply _at all_ to things like miscegenation laws, unequal provision of educational facilities, state discrimination in hiring or admission to state institutions of higher education, or even (this is the sticky one for me) explicit laws according to which a black man hung for a crime for which a white man received only a jail sentence. I'm not bothered by any of them but the last one. In fact, I think Brown was probably wrongly decided (so I'm more radical than Bork), as was (is it?) Virginia v. Loving. But the last one doesn't seem right to me, because the architects of the amendment specifically cited such laws (which expressly punished a black man more harshly than a white man) as things they were trying to overturn. Yet I have trouble shoe-horning the problem with those laws into a the categories of denial of basic procedural rights in a criminal or civil case or basic federal rights.

But I'm all for overturning all those other applications of the 14th to what seem to me, especially compared with what blacks actually suffered in the post-war years, things unworthy of federal court strike-downs. Indeed, part of what motivated me to think up this new idea is just the bizarreness of making a big song and dance over the terrible unfairness of school segregation by race (for example) while allowing other people to be _killed_ with nothing but a slap on the wrist and not striking that down as contrary to equal protection.

****************************
Perhaps More simply did over-speak when he told the executioner that it was his "duty" to kill him. Or perhaps he was trying to see it from the perspective of the executioner who in fact did not know how wrongfully More was being killed and was unlikely to take More's word for it. So from his perspective it was a duty. Perhaps More was just trying to comfort him out of the kindness of his heart and not being very analytical about the exact natural law implications of his words.

To my mind the problem with grabbing a gun and shooting down the guard and escaping is a little subjective: I'm imagining the guard or even the executioner for that matter as a nice family man, not in any ordinary sense an aggressor, and as a guy who is understandably putting himself in the position of enforcing the laws rather than examining the evidence of the case. (By the way, I _completely_ disagree that Zippy's and my position requires the executioner to be a detective for every case. There's nothing wrong with prima facie division of labor. The problem arises if you somehow _happen_ to come into possession of such information.) For all he knows, I deserve what I'm getting, as most convicted murderers do, God knows. Such a person can be rational, peace-loving, kind, and good. I'm loathe to go gunning down a guy like that, _especially_ when he's unsuspecting. Call me overly chivalrous. I'd rather, if only I could do it, offer to fight a duel for my life with a champion of the state with the sword, and let God decide the issue. :-) (No, I can't really fight with a sword, more's the pity. Don't even own a sword.)

Thomas More isn't even relevant to the case in point, frankly; and treating what amounts to a particular narrow, not-exactly-overdetermined interpretation of something he is apochryphally rumored to have said, as dispositive on a natural law issue as minor as, you know, deliberately killing the innocent, strikes me as very peculiar. One suspects that it isn't really the magisterial status of this apochryphal statement of Thomas More which is intellectually animating the theory. I know I wouldn't want to rest a claim that one can licitly kill the innocent in some circumstances (say by redefining the objectively innocent as not-innocent, black as white, and reality as television under the rubric of positive law), if I were interested in making such a claim, on so flimsy a scaffold. Rather, I suspect that something else is animating the theory and that the Historical Thomas More of the Thomas More Seminar is being held up as authoritative air cover.

But if that is really the best authoritative air cover available it speaks volumes of the flimsiness of the theory, it seems to me. I'd rather stick to interpreting "innocent" to mean, you know, innocent, independent of whatever label-shuffling someone proposes in a game of language; and guilty to mean, you know, guilty. Because I'm neither positivist nor his close cousin pomo.

I'll make the 14th Amendment my first priority, what with that actually being the subject of the thread. :)

But the last one doesn't seem right to me, because the architects of the amendment specifically cited such laws (which expressly punished a black man more harshly than a white man) as things they were trying to overturn.

First, I'd point out your own intentionalist principle: we only enshrine the purpose to the extent it was actually delivered in the language of the law. If "protection of the laws" would have been interpreted by the courts to mean pretty much the same thing as the due process clause (and the interpretation in contemporary court cases says just that), then we aren't going to rewrite their language based on what they had in mind. "Protection of the laws" had a clear and definite understanding, and if they intended to cover something else, they could have.

Second, I think you might be drawing the distinction on what counts as procedural protection a little more narrowly than is historically warranted. In the cases of laws that draw distinctions based on the race of the victim or the perpetrator, I doubt these distinctions would have survived ordinary due process scrutiny at the time (which was tougher in terms of natural rights than today's rational basis scrutiny). In other words, they thought the proposition that sentencing people differently based on race was obviously an arbitrary and unjustifiable distinction (hence, unequal) for due process purposes. The problem was that the states weren't bothering to apply their own standards of due process analysis, and the federal courts had no authority to step in, because there was no federal guarantee of due process rights as against the states (the Bill of Rights applied only to the federal government). I expect that the framers of the Amendment thought that federal review of sentencing disparities would have sufficed to make many of those distinctions unconstitutional.

Third, the cases you cite don't really fall within the example of negligent enforcement (e.g., turning a blind eye to lynching) that you cited above. With respect to such negligent enforcement, it appears quite clear from the historical record that the state's obligation is to protect people from its own abuses, not from those of others. Consider the famous formulation of the state action doctrine in U.S. v. Harris:
The language of the amendment does not leave this subject in doubt. When the state has been guilty of no violation of its provisions; when it has not made or enforced any law abridging the privileges or immunities of citizens of the United States; when no one of its departments has deprived any person of life, liberty, or property without due process of law, or denied to any person within its jurisdiction the equal protection of the laws; when, on the contrary, the laws of the state, as enacted by its legislative, and construed by its judicial, and administered by its executive departments, recognize and protect the rights of all persons,- the amendment imposes no duty and confers no power upon congress.

I find it difficult to twist that statement so that the protections are anything other than restrictions with respect to the state's own exercise of powers, such as its choices of how to sentence people it arrests. If there has been no state action to violate people's rights, then it cannot be held liable simply for failing to protect them. With respect to matters in which the state already has positive obligations to be fair to someone, such as its exertion of criminal, civil, and regulatory authority over someone, it must abide by them. Where the state has no positive obligation to defend rights, it cannot be accused of depriving anyone of them, and the state has no obligation to defend citizens against one another.

I agree with the general gist of putting the emphasis on "protection of the laws" rather than "equal," but my trouble at this point is that "protection of the laws" seems to be unambiguously restricted in its scope.

I'm imagining the guard or even the executioner for that matter as a nice family man, not in any ordinary sense an aggressor, and as a guy who is understandably putting himself in the position of enforcing the laws rather than examining the evidence of the case. (By the way, I _completely_ disagree that Zippy's and my position requires the executioner to be a detective for every case. There's nothing wrong with prima facie division of labor. The problem arises if you somehow _happen_ to come into possession of such information.) For all he knows, I deserve what I'm getting, as most convicted murderers do, God knows. Such a person can be rational, peace-loving, kind, and good.

But I think Zippy's analysis deprives him of the moral right to "put[] himself in the position of enforcing the laws rather than examining the evidence of the case." That's exactly the point. If the moral duty is not delegable, then why is the epistemic duty less so? One could just as easily say that no "rational, peace-loving, kind, and good" person has any business being an executioner unless he is willing to do at least that much.

Moreover, the fact that someone has not performed sufficient investigation to determine the facts is ordinarily not sufficient. Take mistaken identity for example. The fact that the person, however innocently, believes that you are dangerous doesn't exempt him from getting shot if he shoots at you. He is an "aggressor" whether he thinks he is or not. So it doesn't seem that one's status as "aggressor" really has much to do with the person's basis for belief, which is why I believe that we have to move past the epistemic level in the analysis.

If you, as the executioner, know with absolute certainty that the condemned definitely did not commit the crime for which he was condemned, is it morally licit for you to personally execute him?

I think it is. The reason is that there has been an authoritative determination by the competent authority that the person in question is a threat to the public order.

Thomas More isn't even relevant to the case in point, frankly; and treating what amounts to a particular narrow, not-exactly-overdetermined interpretation of something he is apochryphally rumored to have said, as dispositive on a natural law issue as minor as, you know, deliberately killing the innocent, strikes me as very peculiar.

I'm not citing that as dispositive, just as a helpful analytical example for the distinction I am endeavoring to draw. The question is precisely whether someone who has been deemed a threat to public order by a duly-constituted authority falls within the class of innocents intended to be covered by the moral teaching. It is not at all clear to me that it does. I can see an argument for why it might be, but I don't see a compelling argument why it necessarily is.

But if that is really the best authoritative air cover available it speaks volumes of the flimsiness of the theory, it seems to me. I'd rather stick to interpreting "innocent" to mean, you know, innocent, independent of whatever label-shuffling someone proposes in a game of language; and guilty to mean, you know, guilty. Because I'm neither positivist nor his close cousin pomo.

The point isn't to appeal to authority, but to understand what exactly the moral relationship between the command not to commit murder and the exercise of state authority. It seems to me that on its face, execution is a different sort of moral act than murder. I haven't begun to draw an argument for that distinction; I have simply pointed out what the distinction is. We commonly draw linguistic distinctions about it ("found guility," "condemned," "convicted," etc.) that express a qualitative difference between the results of judicial processes and the underlying factual determinations. "Guilty" in the legal context doesn't mean the same thing as it does in the moral context. I am not saying that whatever the state says determines morality as a general matter, but it certainly does appear that the judgment of the state is morally relevant to the determination.

That's exactly the point. If the moral duty is not delegable, then why is the epistemic duty less so?

Look, Jonathan, that is just nonsense on stilts. You can't "delegate epistemic responsibility" with respect to something you know for an absolute certainty to be false.

You delegate epistemic responsibility for making a prima facie case which you're permitted to trust under ordinary circumstances, because the people thus assigned are expected to exercise due diligence. The process is meant to leave someone like the executioner with no dreadful doubts, because he knows how hard it's been to get this guy convicted. Under most circumstances, the executioner won't be in a position to say that the investigators and jury made a mistake or to overturn that strong prima facie case. But _of course_ that case is defeasible if in some weird and totally unexpected way you, being the executioner, happen to know that the person is innocent, at which point you're no longer in a position to delegate the moral responsibility. I mean, that just seems to me _obvious_. Don't we do stuff like that all the time, in life as well as in law? We divide labor and delegate to some people the job of finding out the facts. But that doesn't mean that the rest of us are robots, so that we just act on their findings even if we happen to come into possession of completely overwhelming amounts of evidence contradicting the findings of the people who ordinarily have that job. You wouldn't do that in the business world. You wouldn't do that in ordinary life. You might, for example, give one guy the job to find out if somebody was in a building before demolishing it (if your business is going around knocking down derelict buildings). Normally the guy with the big wrecking ball just trusts the guys who looked in the building ahead of time, but _of course_ he stops if he _sees_ somebody in the building.

I have to admit that _my_ disinclination to shoot the executioner really is bound up with the fact that we aren't thought of as being in a combat situation, so I think of myself as taking "unfair advantage" of somebody who might be a good person. If somebody is coming shooting at you in a case of mistaken identity, it's more like two soldiers in battle. He knows quite well that you're likely to defend yourself if you can.

But again, I don't see that I have to give a precise explanation of why it seems to me "not okay" to grab a gun and kill the executioner if I'm the innocent accused before I can say that an executioner who _knows for sure_ that I'm innocent _must not_ kill me. The parallel between the two questions doesn't seem to me nearly as close as you seem to think it. If I say, "Something doesn't seem quite right about grabbing a gun and killing the executioner and escaping," it doesn't follow that I have to accept an entire theory under which the executioner is a state robot and has no responsibility to take into account overwhelming evidence of my innocence if he happens to possess it.

But that doesn't mean that the rest of us are robots, so that we just act on their findings even if we happen to come into possession of completely overwhelming amounts of evidence contradicting the findings of the people who ordinarily have that job.

If we are legal positivists that is exactly what it means.

Some kinds of legal positivists are only partially so in the sense that their positivism is scoped by a fact-value distinction. Public officials become robots with respect to substantive values but not necessarily with respect to other kinds of facts. I don't think that helps, in part because I am not big on the idea that moral facts aren't facts; though anything which putatively narrows the scope of a particular positivism will make it seem more plausible.

In the specific case of the execution of St. Thomas More both the more narrowly-scoped and the more broadly-scoped versions of legal positivism have to conclude that the execution was just, since the positive law was pretty much designed on purpose to capture the facts of More's moral dilemma. So More's execution was "just"; where "just" means "unjust but demanded by the positive law". That, again, is what positivism of any sort gets you: innocence is guilt, justice is injustice, black is white, reality is television.

What remains of the Christian West needs to shake the dust of positivism off its boots: to stamp it out utterly, relegate it to the nineteenth century dustbin in which it belongs as a relic to atrocities past. It isn't a useful tool; it doesn't provide necessary limits in politics; it doesn't assure modesty in scientific inquiry. Unless, of course, useful means harmful, limit means license, and modesty means arrogance.

Well, since Zippy thinks _I'm_ a legal positivist for my theory of sola legislatura (I believe was the term), I'm not going to agree that every form of what he means by "legal positivism" should be stamped out. But here we're talking about having the executioner step down, step aside, refuse to carry out the action. Now that was precisely the sort of option I left open in our previous discussion on Zippy's blog. I said there that of course you might have to recuse yourself in order not to be formally cooperating with evil. Where I balked was at a government official's remaining in his position and using his power in that position to thwart or overthrow the positive law--e.g., a judge ordering remedies for the acting out of a state's positive law on the basis of its contradicting the natural law when he has no other positive law basis for so ordering, or a governor's using the enforcement powers given him to arrest people who are breaking no positive law. Or even the refusal of an attorney general to prosecute under a given law because he believes it to be unjust or because he dislikes the victim.

But simply refusing to execute someone you've discovered to be innocent is ruled out by none of this. In fact, it's obviously better to quit your job as an executioner than to execute someone you know to be innocent.

I should also add that you should not be an executioner if you know you're living in a country where innocent people are _routinely_ executed--e.g. Saddam Hussein's Iraq or the People's Republic of China. I think it's very important to the legitimacy of your occupying that job in the first place that you have reason to believe you'll be executing bad guys (for want of a better word). If you have good reason for that, you get to trust the system until and unless you get major evidence to the contrary. That just seems to me a matter of responsible behavior. There's nothing wrong with trusting a source you have reason to believe to be trustworthy. There is something wrong with acting on the orders of a source when you know perfectly well you're being told to kill a man who has done nothing worthy of death.

Or even the refusal of an attorney general to prosecute under a given law because he believes it to be unjust or because he dislikes the victim.

You are meticulously fair in most of your commentary, but putting those two (unjust or dislikes) together in your criticism does not do my position justice. Also, "believes it to be" softens the epistemic blow in much the same way as Jonathan's "delegation of epistemic authority". I am sure we only disagree when it comes to something the public official in question knows without any shadow of a doubt to be unjust, not what he "believes to be" unjust; and even then the exercise of his power -qua- public official contrary to the unjust positive law would only be required in cases where failing to do so is known beyond a shadow of a doubt to be more harmful to the common good than simply recusing himself. (You may recall from previous discussion that some of my examples were the administrator of Auschwitz and the Burgermeister of Berlin; and that these in my view would be doing the right thing -qua- public official in helping Jews escape).

I wasn't trying to be unfair. Just trying to make a list. It's a hodge-podge; the juxtapositions aren't meant to be profound. Okay, I'll give you "knows without a shadow of a doubt to be unjust." And you know what I said: You shouldn't have become administrator of Auschwitz. And if you became administrator of an ordinary prison for criminals and they started bringing people in who had been convicted of no crime (which the Jews hadn't, they were just rounded up) then you didn't promise to confine those not even designated as criminals.

I should add that my opinion on government positions is based on a matter of oath. I assume that an oath involves _not_ promising to do whatever you are ordered but rather promising not to use the authority you are given actively to undermine the positive law. That seems a reasonable oath to me and a reasonable distinction. I would never become an executioner if I had to promise to execute anyone they handed me, no matter what. But I'd be willing to promise not to use my gun (assuming executioners are issued guns) to help a prisoner blast his way out. This may seem a fine distinction, but to me it's an important one. I'm entrusted with the gun, the security codes of the prison, etc., on the supposition and agreement that I'm not going to arrange violent prison breakouts. But that doesn't preclude my taking a passive line and refusing to execute someone if I've discovered he's innocent. Not that this is ever likely to come up in the U.S. To my hawkish mind, we execute far too few people who richly deserve it, not too many.

You shouldn't have become administrator of Auschwitz.

That is the genetic fallacy though, even if the premise happens to be true in a particular case. Just because you shouldn't have become X (assuming that it is true that you shouldn't have become X in the manner that you did) it doesn't follow that you have no moral obligations as X now that you are X. (Of the two examples I gave I like the B of B Better anyway).

At this point, I'm afraid that I will only make things worse, but I would like to make only a few clarifications:
1. My case dealt specifically with the question of whether the execution would be permitted, not mandated. I'm not saying that the executioner is not free to say "no," but whether he is free to say "yes."

2. For me, the case is strictly hypothetical, since I don't think execution should be a punishment to any crime ever (If Lydia's position is "hawkish," then mine is as "dovish" as one can be). But the reason I think it is commendable not to execute people is that one could do so as a matter of strict morality.

3. My point is simply that our adversarial system sets objective and regularized standards for how those facts are brought to bear on moral determinations of whether someone ought to be punished. It may seem needlessly draconian that criminal defendants are put to the ordeal of defending themselves, and if they fail, they will be constructively judged as admitting the justice of the verdict against them. But if the justice system does not even allow the accused's actual knowledge of his own innocence to defeat the judgment, then I see little reason to think that the judgment should be defeasible on account of what anyone else thinks he knows about the facts and moral significance of the case. It is logically possible, but I find it difficult to imagine a case where the same person, not the judge, was so intimately familiar with both the factual circumstances surrounding the event and the evidence at trial that he would be in a position to defeat the trial court's judgment in a way that an appeals court or other forum of review would not. In other words, I can think of no real case in which such a person would ever have enough confidence to meet the elevated epistemic bar. Perhaps the purely hypothetical langauge concealed that.

In other words, I can think of no real case in which such a person would ever have enough confidence to meet the elevated epistemic bar.

So does this mean that in a case that did meet whatever epistemic bar obtained (that is what "absolutely certain" implies by the way) that it would be immoral for the executioner to execute the condemned?

In my view, the executioner who refuses to execute is not acting as a part of the system. It's not as though the system has a built-in pardon power for someone other than the executive. Certainly not. Rather, the executioner in the situation envisaged is (in my opinion) obliged to refuse to act as a cog in the system, because he believes that (perhaps non-culpably) the system has erred. Of course the system doesn't allow the accused's knowledge of his own innocence to defeat the judgement, except insofar as he testifies on his own behalf and perhaps is convincing to the jury. That's how the system has to work. And that's fine. But we're imagining some sort of extra-systemic evidence that comes to the executioner as an individual. Of course at that point what he chooses to do isn't part of the normal working of the system. And as you saw, I have real reservations about his waxing violent at that point and trying to arrange a violent jail-break for the accused, or _perhaps_ even a non-violent one. But simply to refuse to fulfill his role in the system, perhaps even to quit his job--it seems to me that at least that much is, in fact, mandated.

But given our differential approaches to capital punishment, the whole thing is rather amusing. Here I would be willingly pulling the lever on scores of people I view as despicable scumbags who should be pushing up daisies, while reserving the right to sit down and refuse in the case of extraordinary external evidence, while you wouldn't bump off _any_ of them, while holding that juridically it would be right to kill one even in the face of such evidence of his innocence.

Indeed, life and argument is strange.

I'm still mulling the 14th. I went to the cases you linked and am mulling them, esp. Strauder. On its face it seems the most restrictive of interpretations of the 14th, but there are a few things in there I don't know what to think of. Will ask about them when I get a chance to re-find, clip and paste the quotes.

So does this mean that in a case that did meet whatever epistemic bar obtained (that is what "absolutely certain" implies by the way) that it would be immoral for the executioner to execute the condemned?

I think if one had reason to think that the judgment was wrong, that it lacked authority, then yes. My point is that whatever knowledge the executioner has must be sufficient to defeat the authority of the pronouncement, meaning that he has to have not merely a different view of the facts but a different view of the facts sufficient to convince him that the judge's authority over the case is defeated. As you pointed out, it's not enough to merely believe that the judge's judgment is wrong on the facts; one has to believe that the judge's judgment could not possibly be authoritative. If I am absolutely certain as I can be that X did not do the thing for which he was convicted and yet I am also absolutely certain as I can be that he received a fair trial, that the evidence was adequately presented, that the jury rendered its verdict and the judge his sentence on this evidence, without any apparent error, then it's clear that I am wrong about one thing or the other. And given that the condemned and I have both agreed that this procedure is adequate to decide the question and agreed to be bound by the results, it seems that I am not in the same position as I would be if I simply had the knowledge of the facts, making my own subjective moral judgment on whether the crime deserved death or not. It seems to be that in consenting to the adversarial process, the accused has conceded that he will bear the burden of mistakes if they cannot be uncovered by the full legal procedure.

The trouble I have always had with capital punishment is that I can see no rationale by which an innocent person can freely submit to having his life put in jeopardy, and without free submission, I can see no way to rationalize state authority in terms of the democratic will of the people. It seems to me quite obvious that no individual would be willing to sacrifice any degree of safety in exchange for being wrongly executed as a criminal, just as no person would consent to being murdered for any degree of collective good, meaning that any imposition of capital punishment on any innocent person is unlawful tyranny against the consent of the governed (whether one knows one is doing it is irrelevant, because it would be impermissible even to assume the risk of intentional tyranny by state acts for the sake of some other good). We know for a fact that innocents are and have been executed, so I can't see any rationale by which the imposition of capital punishment is not tyrannical. But because I am told that capital punishment must be morally acceptable in some instances even though innocent people will die, I have to somehow explain to myself why it is that a person can consent to the sacrifice of his own innocent life in the societal interest.

This was (and is) a very serious quandary for me in terms of the believability of Christianity generally and Catholicism particularly, in that there is clearly a divine endorsement of capital punishment, so if my reasoning seems strained on the point, it is because I am trying to understand something that I find extremely difficult and counter-intuitive. It has very little to do with positivism, but with a substantive teaching I find perplexing at best.

If I am absolutely certain as I can be that X did not do the thing for which he was convicted and yet I am also absolutely certain as I can be that he received a fair trial, that the evidence was adequately presented, that the jury rendered its verdict and the judge his sentence on this evidence, without any apparent error, then it's clear that I am wrong about one thing or the other.

I never asked you that, and I never implied that the executioner was in any way conflicted. I asked you if it would be licit for an executioner who knows that the condemned is innocent to execute him anyway, and you said yes. All the epistemic gyrations and protestations are swept aside by the premise of the question: you know for a fact that he is innocent.

It seems to be that in consenting to the adversarial process, the accused has conceded that he will bear the burden of mistakes if they cannot be uncovered by the full legal procedure.

I can't make any sense of that. I know that I have not personally consented to a regime of legal positivism, and that I would never do so. I expressly refuse consent to it right here and now. I expect that most people haven't thought about the matter enough one way or another to be able to have consented in any coherent sense of consent. Beyond that the whole modern regime of legitimacy-through-consent is just obvious nonsense, it seems to me. Especially for people like me, who expressly reject it, but just as much so for anyone who isn't a political philosopher: in other words, pretty much everyone with the occasional extraordinarily rare exception.

But I'll be travelling for a bit, so I have to leave this and other discussions behind. Future silence on the issue should not be construed to mean anything other than that I am away from the discussion.

"If I am absolutely certain as I can be that X did not do the thing for which he was convicted and yet I am also absolutely certain as I can be that he received a fair trial, that the evidence was adequately presented, that the jury rendered its verdict and the judge his sentence on this evidence, without any apparent error, then it's clear that I am wrong about one thing or the other."

Here I think you are wrong. You could be in possession of evidence that the jury cannot simply be given. It's not, after all, that simple. Even in a matter of character, there is no way for me to convey *to you* the uncountable number of bits of evidence that I have of my husband's good character and reliability so that they have the same legitimate, rational, epistemic force for you that they have for me. That's because I've been married to him for 21 years and you haven't. I can't "do a brain dump" to give you my evidence. I can testify, but that's not the same thing, for many reasons, only one of which is that you then have your level of trust _in me_ as yet another veil between you and the fact of my husband's good character.

That's just an example. But if that can be true in so simple and everyday a matter as trusting a person, it could certainly be true on a matter of fact. Here are just a couple of scenarios: A person could speak to me, giving detailed evidence of X's innocence. I could be rightly and rationally impressed in part by _his_ credibility as a witness in his manner, appearance, etc., all of which are evidentially relevant. He then is murdered before he can give testimony at the trial. I can pass on the propositional contents of his testimony to the jury but cannot really "pass on" to them the effects of his manner, etc., as part of his credibility as a witness. And he's dead. So they don't have the same evidence to go on that I have, and in the nature of the case now they can't. Here's another scenario, more bizarre: Suppose that I'm a saint and regularly get communications from God, which I have been able to check out and prove to be true on empirical matters time and again. I know I'm not crazy in general, because in all other ways I interact normally with reality, with other people, etc. I've come to know "that" voice sound and so forth as being indications that God or an angel is speaking to me. I'm totally rational in this because I have this whole lifetime of evidence as a saint to whom God speaks audibly to back it up. Then I get one of "those" communications telling me that X is innocent. There is no way that the jury can be as rationally justified in believing X is innocent as I now am. And in fact they will probably be rational in thinking I'm a nut if I testify about the communication that has come to me. But I'm rational in believing it.

I can give you more scenarios when I feel more creative, if those aren't enough. :-)

I also don't think I buy the idea that the accused has somehow fully agreed to be executed if the court sentences him. Just saying I would feel wrong gunning down some poor unsuspecting prison guard and escaping doesn't mean that I think every member of a democratic society with the death penalty has tacitly agreed that he "should" be hung if the state sentences him to be hung, even if he's innocent. Indeed, I think there's a large ambiguity on "should" there.

Your theory here reminds me of the wrong theory put to me by a former friend. (Don't worry: He did something very bad that caused the falling out. It wasn't the theory.) He held that the government was justified in planning to gun down entire passenger airliners that had been hijacked by terrorists because all the citizens of a democratic society, by not moving away, had thereby tacitly entered into a contract with their governments that they consented to be killed if it was necessary for the greater good. Since gunning down the passenger airlines was necessary for the good of the many, then...

I hope you reject this version of the theory. :-)

I hope you reject this version of the theory.

Actually, you've arrived at exactly the reductio ad absurdam that convinced me that there was trouble in the notion of capital punishment. The hypothetical shows the trouble with the notion that people can consent to be killed; it appears to be obviously false. But if people can't consent to be killed in cases of exigency, why would it be any different if it were a matter of the exigencies of the criminal justice system?

So then we come back to your earlier statement:
Secondly, the accused may know full well that to the outside world the evidence looks decisive. He may admit, with sorrow, that the police aren't evil, the courts aren't evil, the jury isn't evil, that through no one's fault but that of the real murderer, the case against him is very strong.

The fact that the evidence "looks decisive" and that "the case against him is very strong" is really just a matter of epistemic exigency. We're in a situation where there isn't enough information available to make an absolutely certain determination, but they are making a determination anyway. It's not clear to me, then, that the decision isn't evil (or at least that the state does not have the right to make it or to force me to consent to it). All you're saying is reasonable up until the point they are going to kill me, but once it involves taking my innocent life, it's not possible for me to validly consent to it, which means it's tyrannical for the state to force me to do so. In that case, "rational belief" doesn't appear to be the correct standard; it would be more like Zippy's "absolute certainty." Effectively, it wouldn't ever be right to execute anyone unless the conviction was so certain that it wouldn't even be possible for the executioner to be in the situation that was being described earlier.

Anyway, I'm convinced on the executioner not being able to execute the guy (so y'all can put aside your torches and pitchforks :)), but now I'm also convinced that the state has no authority to execute him either for exactly the same reasons. But that leaves me with a pretty significant difficulty with respect to Biblical and Magisterial teaching on capital punishment. I can probably rationalize it with respect to the Israelites, but the Roman Empire is a different matter entirely. Darn. I really thought I had figured this one out.

The whole idea of consenting to be killed has me baffled. Do you consent to be killed when you drive on the highway? No, you take a risk, but that's a different matter. If we're to talk about risk, it's a greater risk to leave evil murderers alive than to kill them. I might just as well say that people who oppose the death penalty are "consenting to be killed" by the murderers if they get out on bail. But I wouldn't say that. I don't think _any_ of this amounts to consenting to be killed. I may, as the innocent man framed by some bad guy, _understand_ why the "system" has sentenced me to death. That's part of why I wouldn't "go postal" and start gunning down guards to escape. But I cannot for the life of me think why you would think a person in favor of the death penalty must hold that the accused "consents" to his death.

As for the state's risking executing an innocent man, there, too, I am unsympathetic to the idea that we must not adopt a policy unless it is guaranteed not to result in an injustice. _All_ policies have the possibility of bad consequences. We exclude evidence against a criminal gathered in violation of the 4th Amendment; this carries the very real risk (far higher, in my opinion, than the risk that innocent people will be executed in our present system) of letting heinous, evil people loose for lack of evidence to convict. We adopt the policy for reasons of principle and overall effect: we don't want to encourage law enforcement to violate the 4th amendment. Someone is thrown in prison after conviction and is brutalized in an indescribable way by his fellow convicts. Suppose he was innocent. An innocent man has now had something happen to him that, as much as death, can never be undone or changed. Frankly, if I were he, I'd prefer death after a brief, humane imprisonment. By convicting a man and imprisoning him, we take the risk that _that_ will happen to someone innocent.

And aside from public policy, private actions all contain risks, and even risks of harming other innocent people. That cannot be avoided. Why should the government have to forego the death penalty because of the bare _possibility_ that an innocent man will be convicted?

I may, as the innocent man framed by some bad guy, _understand_ why the "system" has sentenced me to death. That's part of why I wouldn't "go postal" and start gunning down guards to escape. But I cannot for the life of me think why you would think a person in favor of the death penalty must hold that the accused "consents" to his death.

There are two distinctions that I would draw.

First, there is a distinction between "risks" inherent in some forms of activity, in which the activity can be performed without the risk ever materializing, and acts deliberately directed at producing the harm. What you're talking about with the "risk" of execution isn't really a "risk"; there has been a conscious decision to execute someone. We can talk, for example, about the "risks" of being killed by a drunk driver, for example, but those aren't the kind of "risks" associated with driving as an activity. Rather, they are risks deliberately imposed by another human being on you by that person's bad conduct. One consents to the former sort of risks by engaging in the activity, but not the latter.

Second, with respect to the acts of the state, consent of the governed is a requirement for legitimacy. The question is whether one can legitimately consent to the state's deliberate imposition of the risk. Otherwise, the state is acting as a tyrant, imposing its power without the consent of the governed. The fact that I can understand why it is doing this says nothing about the legitimacy of what it is doing. I can understand that the drunk driver didn't mean to inflict the harm that he did, but his stupidity and poor judgment doesn't make what he did legitimate. "I didn't mean to" is not a complete defense where deliberately putting someone else's life in jeopardy is concerned.

As for the state's risking executing an innocent man, there, too, I am unsympathetic to the idea that we must not adopt a policy unless it is guaranteed not to result in an injustice. _All_ policies have the possibility of bad consequences.

The question is not whether there is a possibility of bad consequences, but how the bad consequences obtain. If a prisoner is brutalized by his fellow convicts, this is not state action. Nothing about imprisoning people entails the independent acts of convicts against their fellow prisoners, just like nothing about driving entails drunk drivers. At any rate, as you mentioned, one can't kill somebody in the interest of protecting him from the bare _possibility_ that he might suffer a "fate worse than death" (leaving aside the question of whether there is such a thing) through someone else's wrongdoing.

And this is not just any injustice; it's the deliberate taking of a human life. We don't balance the deliberate taking of human life against other benefits. As an example at the micro level, the fact that someone has threatened your life doesn't give you license to kill that person unless the threat is imminent. There is no "pre-emptive strike" against the danger that a person might pose. I don't see why that changes simply because the agent is the state. The more I think about your "combat situation" example, the less sympathy I have for the justifiability of killing anyone outside of such situations (e.g., cops, soldiers).

And aside from public policy, private actions all contain risks, and even risks of harming other innocent people. That cannot be avoided. Why should the government have to forego the death penalty because of the bare _possibility_ that an innocent man will be convicted?

That equivocates between the sorts of risks that really are unavoidable because no one has any choice about them and the sorts of risks that are created by human choice. The latter can be avoided by choice, and the state always has a choice whether or not to execute people.

I don't mean to equivocate. I could stick just to risks inherent in driving. You can, for example, be killed or maimed and left in pain for life from an accident that involves no one's fault, a freak car accident. That's a risk inherent in driving, yet we take it.

But as regards state action, I'm willing to stick to actual state action. Y'see, I just regard the death penalty as a punishment that can be merited like another punishment. I'm a retributivist. A crime can merit imprisonment, but it might merit death. _Any_ state punishment might in principle do an innocent man irrevocable harm. I do not really see an extraordinarily significant moral difference between taking ten years of an innocent man's life--during which, for example, he irrevocably misses much of his children's growing up--and taking the man's life itself. If he is innocent, _either_ of these is *in one sense* an injustice, and one to be deeply regretted and avoided at much cost, though it may be, if the system works right, an "accidental" injustice in which he was given a fair trial, etc. I cannot see the sharp discontinuity between these that opponents of the death penalty see.

Y'see, I just regard the death penalty as a punishment that can be merited like another punishment. I'm a retributivist. A crime can merit imprisonment, but it might merit death.

I do see now, and I suspect the discussion becomes intractable at this point. I strongly doubt whether any political process would be suited to assessing what a crime "merits" for the reasons I gave above (viz., political judgments are technical judgments of possibility according to a significantly different method than ethical judgments), and at any rate, I don't believe it is possible for any crime to "merit" death. I can't imagine how culpability for some finite exercise of power could justify annihilation of the entire being that exercised it. No matter how bad that one exercise of power was, it was still only one bad thing done by a person who otherwise did many good things, even if it was just that a few other people loved him and cared for him.

I do not really see an extraordinarily significant moral difference between taking ten years of an innocent man's life--during which, for example, he irrevocably misses much of his children's growing up--and taking the man's life itself. If he is innocent, _either_ of these is *in one sense* an injustice, and one to be deeply regretted and avoided at much cost, though it may be, if the system works right, an "accidental" injustice in which he was given a fair trial, etc. I cannot see the sharp discontinuity between these that opponents of the death penalty see.

Ontologically, it seems that the inferiority of non-existence to existence seems pretty clear. It's just loose talk to say that locking someone up is "taking away ten years." His power to act is restricted, but it is certainly not annihilated. Missed experiences simply mean one has others; annihilation means one has no experiences at all. The sentimentality about one's children growing up convinces me not one whit. It's an experience, a wonderful one (I changed jobs so that I could have more of it), but people are forced by circumstances (and sometimes persuaded by simple comparison with other goods) to choose against that good all the time. In the most obvious situation, one parent ordinarily has to work while the other stays at home. I consider leaving the house to go to work an inferior experience to staying home with the children (and if I were sufficiently wealthy, I likely would not choose to do it), but if I can choose against it for economic reasons, then it seems pretty clear that depriving someone of it is not on the same order of magnitude as depriving a person of existence. All experiences are irrevocable, as are missed opportunities for experience, but the fact that human existence is irrevocably historical doesn't strike me as a persuasive argument for why non-existence is preferable to bad experience.

But as I said, I am as unlikely to convince you of my position on this point as you are to convince me of yours, so there's probably not much to be gained by pursuing the discussion on that point. Now that I am persuaded that the executioner can't kill the person in question (which should end the sidetrack), we can probably get back to the 14th Amendment. :)

I think you're downplaying too much the badness of imprisonment of the innocent, but...

Here is a long quote from U.S. v. Harris with me-bolded passages:

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The purpose and effect of the two sections of the fourteenth amendment above quoted were clearly defined by Mr. Justice BRADLEY in the case of U. S. v. Cruikshank, 1 Woods, 316, as follows:

'It is a guaranty of protection against the acts of the state government itself. It is a guaranty against the exertion of arbitrary and tyrannical power on the part of the government and legislature of the state, not a guaranty against the commission of individual offenses; and the power of congress, whether express or implied, to legislate for the enforcement of such a guaranty, does not extend to the passage of laws for the suppression of crime within the states. The enforcement of the guaranty does not require or authorize congress to perform 'the duty that the guaranty itself supposes it to be the duty of the state to perform, and which it requires the state to perform."

When the case of U. S. v. Cruikshank came to this court the same view was taken here. The chief justice, delivering the opinion of the court in that case, said:

'The fourteenth amendment prohibits a state from depriving any person of life, liberty, or property without due process of law, or from denying to any person the equal protection of the laws; but this provision does not add anything to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the states upon the fundamental rights which belong to every citizen as a member of society. The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the states, and it remains there. The only obligation resting upon the United States is to see that the states do not deny the right. This the amendment guaranties, and no more. The power of the national government is limited to this guaranty.' 92 U.S. 542.

So, in Virginia v. Rives, 100 U.S. 313, it was declared by this court, speaking through Mr. Justice STRONG, that 'these provisions of the fourteenth amendment have reference to state action exclusively, and not to any action of private individuals.'

These authorities show conclusively that the legislation under consideration finds no warrant for its enactment in the fourteenth amendment.
The language of the amendment does not leave this subject in doubt. When the state has been guilty of no violation of its provisions; when it has not made or enforced any law abridging the privileges or immunities of citizens of the United States; when no one of its departments has deprived any person of life, liberty, or property without due process of law, or denied to any person within its jurisdiction the equal protection of the laws; when, on the contrary, the laws of the state, as enacted by its legislative, and construed by its judicial, and administered by its executive departments, recognize and protect the rights of all persons,- the amendment imposes no duty and confers no power upon congress.

Section 5519 of the Revised Statutes is not limited to take effect only in case the state shall abridge the privileges or immunities of citizens of the United States, or deprive any person of life, liberty, or property without due process of law, or deny to any person the equal protection of the laws. It applies, no matter how well the state may have performed its duty. Under it private persons are liable to punishment for conspiring to deprive any one of the equal protection of the laws enacted by the state.
In the indictment in this case, for instance, which would be a good indictment under the law if the law itself were valid, there is no intimation that the state of Tennessee has passed any law or done any act forbidden by the fourteenth amendment. On the contrary, the gravamen of the charge against the accused is that they conspired to deprive certain citizens of the United States and of the state of Tennessee of the equal protection accorded them by the laws of Tennessee.

As, therefore, the section of the law under consideration is directed exclusively against the action of private persons, without reference to the laws of the states, or their administration by the officers of the state, we are clear in the opinion that it is not warranted by any clause in the fourteenth amendment to the constitution.

********************************************

The argument, of course, is that the 14th doesn't permit the federal government to legislate directly against the actions of individuals.

But despite the very strong language limiting the application of the 14th, the assumption seems to be that "equal protection of the laws" is something the states give to individuals against other individuals. I think the bolded passages support this.

The most confusing ones, which I can't myself figure out, are from U.S. v. Cruikshank where it says that the amendment assumes that it's the duty of the states to protect people--apparently from other individuals--that congress can't do so itself, but that Congress can "require the states to perform it" (that duty). Just how Congress is supposed to do this is pretty unclear.

Apparently the point in this case is that, though these men were beaten up and lynched, it was the job of the state to punish the lynchers, and the federal government couldn't do so by direct legislation. There is no allegation that the state was refusing to prosecute them; the question appears only to be whether the federal government could outlaw their conspiracy (to grab the men out of police custody and beat up or kill them) directly.

I think especially relevant is the reference at the end to the fact that the U.S. law is not directed even at the states' _administration_ of their laws by the states' officers. The implication seems to be that a U.S. law directed at either a state law *or at the administration of state law by state officers might be warranted by the 14th amendment*, but that this law is not because it is directed at individuals alone.

It would have been helpful if the opinion had given an example of the type of federal law by which Congress could require the states to provide the equal protection of the laws, one directed at a state's administration of its laws, that would in the court's view be legitimate under the 14th amendment. But that was something they were of course very unlikely to spell out.

But despite the very strong language limiting the application of the 14th, the assumption seems to be that "equal protection of the laws" is something the states give to individuals against other individuals. I think the bolded passages support this.

How so? The Court says: "It is a guaranty against the exertion of arbitrary and tyrannical power on the part of the government and legislature of the state, not a guaranty against the commission of individual offenses...." "Individual offenses" seems to be exactly what you have in mind by protection as between individuals; the Court appears to have specifically excluded such protections from "equal protection."

The most confusing ones, which I can't myself figure out, are from U.S. v. Cruikshank where it says that the amendment assumes that it's the duty of the states to protect people--apparently from other individuals--that congress can't do so itself, but that Congress can "require the states to perform it" (that duty).

It's by no means apparent to me that "from other individuals" is any part of the analysis. Indeed, it seems clear to me that "individual offenses" are specifically excluded from "[t]he duty of protecting all its citizens in the enjoyment of an equality of rights;" that's simply not the duty under consideration. Consider the preceding language that the 14th Amendment "does not add anything to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the states upon the fundamental rights which belong to every citizen as a member of society." It would appear to me that the duty that Congress can enforce is the duty that state agents acting in an official capacity have not to violate the rights of the citizen. Whatever rights citizens may have against other individuals are simply outside the scope of equal protection entirely, since the 14th Amendment deals only with rights against the state.

Apparently the point in this case is that, though these men were beaten up and lynched, it was the job of the state to punish the lynchers, and the federal government couldn't do so by direct legislation.

I wouldn't say "job." The Court actually said "it was the reserved power of the state to punish the lynchers." The 14th Amendment gives a guaranty, but not against individual offenses, meaning the feds acquire no power to do what they could not do before.

I think especially relevant is the reference at the end to the fact that the U.S. law is not directed even at the states' _administration_ of their laws by the states' officers. The implication seems to be that a U.S. law directed at either a state law *or at the administration of state law by state officers might be warranted by the 14th amendment*, but that this law is not because it is directed at individuals alone.

I think that misunderstands the rationale. The law is unconstitutional not because it regulates individuals regardless of whether the individual is a state or private actor, but because it tries to regulate a matter of "individual offenses" that is outside the scope of the 14th Amendment guaranty. Simply put, the 14th Amendment doesn't provide a guaranty of rights as against private individuals, so Congress has no authority to protect it.

Here are some arguments that "equal protection of the laws" is being understood in the Harris opinion to mean the states' protection of people against individual crime:

The Harris opinion approvingly quotes Bradley in Cruikshank as saying that Congress may not pass laws "for the suppression of crime within the states," following this _immediately_ by saying that Congress cannot perform "the duty that the guaranty supposes it to be the duty of the state to perform, and which it requires the state to perform."

To me, this sounds like it is saying that the duty in question is to suppress crime within the states. Congress isn't supposed to suppress crime within the states by direct legislation applied to private persons within the state (like the legislation in question here) but rather (somehow) is supposed to guarantee that the states do their own duty to suppress crime within the states.

In the very passage you originally quoted, it is emphasized that there can be no claim made of a violation of someone's rights under the 14th amendment if the "laws of the state, as enacted by its legislative, and construed by its judicial, and administered by its executive departments, recognize and protect the rights of all persons." This seems most naturally to be taken to refer, inter alia, to laws of the states regarding the suppression of crime, not _merely_ to laws of the states concerning the states' own actions--e.g., laws about the process granted to or the treatment of persons the state has arrested or convicted. The implication, then, is that one reason the amendment in such a situation "imposes no duty and confers no power upon congress" is because the state is in fact doing its duty to protect people, inter alia, against one another, within the state itself.

Most relevant of all, it seems to me, are the circumstances of the Harris case itself and the way the opinion speaks of them. The opinion does not deny in any way that the private individuals who conspired to beat up and lynch the men were indeed conspiring to deprive the men in question of the equal protection of the law. In other words, it appears that it is possible for private individuals, when they conspire to harm or kill somebody in defiance of the sheriff, to be trying to deprive them of the protection of the laws. This makes common sense. If you grab somebody from the sheriff's charge and kill him, you have deprived him of the sheriff's protection. But if "equal protection of the laws" refers only to protection *from state action*, then the men in question *could not* have been conspiring to deprive the arrested men of the equal protection of the laws under this meaning, since they were not state actors, and protection against them would not be included in the meaning of "equal protection of the laws." The Harris opinion does not question that they were so conspiring; it rather implies that it ought to be left to the State of Tennessee to provide this protection and that Congress cannot legislate directly against the actions of the private people who committed the lynching. Congress could only intervene if the state itself, either by its laws or by its administration of them, was not providing protection. And evidently it was not alleged--perhaps simply because it wasn't legally relevant in this context--that the sheriff deliberately turned over the men to be lynched. For all the facts of the case say as given here, it's possible that he was outnumbered by the conspirators and did all in his power to protect the men in his charge. Perhaps they were going to be tried for murder, etc., under the laws of Tennessee.

The Harris opinion approvingly quotes Bradley in Cruikshank as saying that Congress may not pass laws "for the suppression of crime within the states," following this _immediately_ by saying that Congress cannot perform "the duty that the guaranty supposes it to be the duty of the state to perform, and which it requires the state to perform."

Now I just have to apologize for being dense, because I should have seen what you had in mind. As I read it, this is a duty that the state must perform as a prerequisite to the guaranty being available. "Requires" appears to be used to mean "needs," not "commands." The state has to provide some protection of rights before it can be held accountable for violating equal protection; if it simply fails to protect them, that would not be the performance that the Fourteenth Amendment guaranty needs to have force.

To me, this sounds like it is saying that the duty in question is to suppress crime within the states. Congress isn't supposed to suppress crime within the states by direct legislation applied to private persons within the state (like the legislation in question here) but rather (somehow) is supposed to guarantee that the states do their own duty to suppress crime within the states.

I suspect it's exactly the opposite. If the state does not do its duty in suppressing crime, then Congress CANNOT do anything, because the guarantee simply doesn't apply. It is only if the state acts to suppress crime that the Fourteenth Amendment guarantee applies.

In the very passage you originally quoted, it is emphasized that there can be no claim made of a violation of someone's rights under the 14th amendment if the "laws of the state, as enacted by its legislative, and construed by its judicial, and administered by its executive departments, recognize and protect the rights of all persons." This seems most naturally to be taken to refer, inter alia, to laws of the states regarding the suppression of crime, not _merely_ to laws of the states concerning the states' own actions--e.g., laws about the process granted to or the treatment of persons the state has arrested or convicted.

Looks like the fallacy of affirming the inverse. Call Q "no claim under the 14th Amendment" and P "laws of the state ... protect the rights of all persons." P->Q (if laws protect all persons, then no claim, which I agree is the implication of the statement), but one can't then conclude that ~P->~Q (if laws do not protect all persons, then there is a claim). If the laws don't protect all person, then the question is whether they fail to protect by inaction (failing to protect from a third party's bad act) or action (deprivation by the state). If by inaction, no claim; if by action, there is a claim.

Most relevant of all, it seems to me, are the circumstances of the Harris case itself and the way the opinion speaks of them. The opinion does not deny in any way that the private individuals who conspired to beat up and lynch the men were indeed conspiring to deprive the men in question of the equal protection of the law. In other words, it appears that it is possible for private individuals, when they conspire to harm or kill somebody in defiance of the sheriff, to be trying to deprive them of the protection of the laws. This makes common sense. If you grab somebody from the sheriff's charge and kill him, you have deprived him of the sheriff's protection.

Agreed.

But if "equal protection of the laws" refers only to protection *from state action*, then the men in question *could not* have been conspiring to deprive the arrested men of the equal protection of the laws under this meaning, since they were not state actors, and protection against them would not be included in the meaning of "equal protection of the laws."

Non sequitur. The Fourteenth Amendment provides that "nor shall any state ... deny to any person within its jurisdiction the equal protection of the laws." If both private individuals and the state can deprive people of equal protection of the laws, then it is clear that the Fourteenth Amendment prohibits the latter and not the former, else it would say "nor shall any state or person ... deny to any person within its jurisdicition the equal protection of the laws." I would also question whether a deprivation amounts to a denial for the reasons I gave above regarding the term "deny."

The Harris opinion does not question that they were so conspiring; it rather implies that it ought to be left to the State of Tennessee to provide this protection and that Congress cannot legislate directly against the actions of the private people who committed the lynching. Congress could only intervene if the state itself, either by its laws or by its administration of them, was not providing protection.

I agree that the Harris opinion does not deny this, but you're own your own after that. I think it says flat out not only that it ought to be left to the State of Tennessee but also that Congress has no power under the Fourteenth Amendment to do anything if the State of Tennessee does nothing to prevent deprivation by a third party.

And evidently it was not alleged--perhaps simply because it wasn't legally relevant in this context--that the sheriff deliberately turned over the men to be lynched. For all the facts of the case say as given here, it's possible that he was outnumbered by the conspirators and did all in his power to protect the men in his charge. Perhaps they were going to be tried for murder, etc., under the laws of Tennessee.

I suspect that if the sheriff were part of the conspiracy, then the outcome might have been different. However, if Tennessee had done nothing to prosecute the men, then according to this reasoning, Congress couldn't have done anything either.

Aha! I knew I had seen that executioner hypothetical somewhere!

St. Thomas Aquinas, ST II:ii, Q.64, Art. 6, Objection 3 and Reply to Objection 3:
"Further, what is done in keeping with the order of justice is not a sin. But sometimes a man is forced, according to the order of justice, to slay an innocent person: for instance, when a judge, who is bound to judge according to the evidence, condemns to death a man whom he knows to be innocent but who is convicted by false witnesses; and again the executioner, who in obedience to the judge puts to death the man who has been unjustly sentenced.
...
If the judge knows that man who has been convicted by false witnesses, is innocent he must, like Daniel, examine the witnesses with great care, so as to find a motive for acquitting the innocent: but if he cannot do this he should remit him for judgment by a higher tribunal. If even this is impossible, he does not sin if he pronounce sentence in accordance with the evidence, for it is not he that puts the innocent man to death, but they who stated him to be guilty. He that carries out the sentence of the judge who has condemned an innocent man, if the sentence contains an inexcusable error, he should not obey, else there would be an excuse for the executions of the martyrs: if however it contain no manifest injustice, he does not sin by carrying out the sentence, because he has no right to discuss the judgment of his superior; nor is it he who slays the innocent man, but the judge whose minister he is."

This is exactly how I understood the matter. If I have fallen into the trap of legal positivism, at least I'll have the Angelic Doctor for company. The "epistemic bar" I had in mind above appears to be exactly what St. Thomas is considering with "manifest injustice" so as to render the judgment an "inexcusable error." Not that I wanted to reopen this particular can of worms, but I was quite relieved to find out that even if I were "insane," I would have good company in the ward.

Thank goodness I'm a Protestant and can disagree wiht the Angelic Doctor flat-out. I especially think he's wrong about the judge who knows the men are false witnesses.

But you don't have to keep him company in the cell; you gave up the idea that it's right to execute the person in that case, remember? :-)

****************************
"Looks like the fallacy of affirming the inverse. Call Q "no claim under the 14th Amendment" and P "laws of the state ... protect the rights of all persons." P->Q (if laws protect all persons, then no claim, which I agree is the implication of the statement), but one can't then conclude that ~P->~Q (if laws do not protect all persons, then there is a claim). If the laws don't protect all person, then the question is whether they fail to protect by inaction (failing to protect from a third party's bad act) or action (deprivation by the state). If by inaction, no claim; if by action, there is a claim."

Here I think you're on shaky interpretive ground. It's well known that in normal English usage, "if" statements usually contain an implicit "only if" and hence are stronger than the material conditional in logic. It is one of the oddities of strict logical material implication that two sentences can be connected by a material conditional when they have nothing to do with each other. It would be a true statement of material implication to say, "If there are penguins in Africa, I will go to the party," so long as you _do_ go to the party. But most people wouldn't bother to make such statements. Usually they would say something like, "If I get all my work done today, I will go to the party," where the "if" is implicitly an "if and only if," meaning that I won't go if I don't get my work done. Notice that if the person didn't get his work done and still went to the party, most people who heard the original statement would say, "Hey, I thought you said you would only go to the party if you got your work done," even if the word "only" didn't appear in his statement. So, here, I don't think the quoted bit in the opinion would have bothered to list these various things and to say that if the state does these things, there is no claim, if it meant to leave open the possibility that the state could fail to do those things but there would still be no claim. It would seem like a fairly pointless exercise to make the list in that case.

It's well known that in normal English usage, "if" statements usually contain an implicit "only if" and hence are stronger than the material conditional in logic.

As a general matter, I agree, but the "if" was mine. The original language was "The language of the amendment does not leave this subject in doubt. When the state has been guilty of no violation of its provisions; when it has not made or enforced any law abridging the privileges or immunities of citizens of the United States; when no one of its departments has deprived any person of life, liberty, or property without due process of law, or denied to any person within its jurisdiction the equal protection of the laws; when, on the contrary, the laws of the state, as enacted by its legislative, and construed by its judicial, and administered by its executive departments, recognize and protect the rights of all persons,- the amendment imposes no duty and confers no power upon congress." I think that "on the contrary" language says that the latter claim is stronger, and thus the situation narrower, than the general class of cases in which there is no claim. In other words, there is no claim when a state has taken no negative legal action, and a fortiori, there is no claim when a state has taken positive legal action for the protection of such rights. It seems to be saying that there would be no claim even in harder cases, which makes the present case in Harris an easy one.

But you don't have to keep him company in the cell; you gave up the idea that it's right to execute the person in that case, remember?

Only on pain of giving up capital punishment altogether, which I find troubling as a matter of historical Christian dogma. If there is a better way out, I'm happy to take that one as well. :)

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