Is Justice Impartial or is Trump Right about Power Run Amok?

Fresno Bee, April 21, 2024

Skepticism about the Trump trials extends to cynicism about the entire political system

Can justice be impartial? This is an ancient question raised anew by the trials of Donald Trump, who has denigrated his indictments as politically motivated “witch hunts.” In Trump’s telling, this is all the work of biased prosecutors and “crooked” or “corrupt” judges.

Trump does not say that he will be vindicated in court by showing evidence and making arguments before the jury. Rather, our leading candidate for president casts doubt on the impartiality of the judicial system itself.

For Trump, justice is primarily a matter of power. He has said he will go after “the Biden crime family” if elected. He used to say he wanted to lock up Hilary Clinton. The Trumpian theory is that whoever is in power gets to punish those who are not in power.

This is an ancient idea. In Plato’s Republic, it is articulated by a character named Thrasymachus, a Greek name that means something like “fierce fighter.” Thrasymachus says justice is whatever the stronger party says it is. Plato rejects this as a tyrannical idea.

As I discuss in my book on Trump and tyranny, a tyrant desires the godlike power to create the law in his own image. This way of conceiving justice is based on bad theology and a pernicious view of political life. God is not a tyrant who arbitrarily makes up the law, but human tyrants and tyrannical regimes do behave in this capricious way.

The antidote to the tyrannical idea of justice is natural law and natural rights. Natural law holds that actions are objectively right or wrong, and that the legal system ought to administer justice impartially. On this theory, there is an objective truth of the matter, and punishments are meant to fit the crime.

A related idea focuses on producing good social consequences by using punishment to deter crime. This approach depends upon a general commitment to the rule of law as a good thing for individuals and society. But there are limits to what can be done in pursuit of “domestic tranquility.” Terrifying and arbitrary punishments may work to “scare people straight,” as the saying goes, but the Eighth Amendment of the Constitution prohibits the sorts of cruel and unusual punishments used by tyrannical regimes.

Further, a stable political and legal system depends upon basic standards of evidence and proof. Such a system assumes (for the most part) an objective account of knowledge and truth. This assumption holds that facts exist and that reasonable people — a jury of your peers — will tend to agree about evidence and argument.

But when people do not agree about the status of the evidence, the arguments or the value of the law itself, there is the risk of chaos and violence. Cynics will claim that since the whole thing is a farce and there is no such thing as objective justice, then there is nothing left but struggles for power.

This seems to be the point of the Trumpian effort to muddy the water with regard to proof, evidence, facts and institutions. Trumpians suggest that there are “alternative facts” and “fake news.” They claim that the system is a “swamp” that needs to be drained. In this environment, skepticism about the Trump trials extends to cynicism about the entire political system, including the electoral process. Thus, those jailed for their criminal acts on January 6 become “hostages” captured by those in power, whom Trump has pledged to pardon.

With all of this on the table, it is clear that the Trump trials are of the utmost importance for the body politic. These are public performances of the law in which impartiality, objectivity and justice are themselves on trial. The audience for this trial is “we, the people.” As these trials unfold, we must ask ourselves about our faith in the system: Is the criminal justice system a travesty of power run amok? Or is it possible for justice to be neutral, objective and truthful?

Read more at: https://www.fresnobee.com/opinion/readers-opinion/article287736320.html#storylink=cpy

Liberalism and the Legacy of John Rawls

Fresno Bee, February 21, 2021

Republicans, Democrats can find common ground over concern for reason and truth.

Feb. 21, 2021 is the 100th birthday of the American political philosopher John Rawls. He was a famous proponent of liberalism. He imagined a tolerant secular society in which reason produced consensus.

Rawls died in 2002. Liberalism was a common ideal in the United States in the 20th century. Things have unraveled since then into fundamental disagreements about truth, justice and the American way.

Liberty matters in Rawls’ vision. But society also ought to concern itself with the well-being of the underprivileged. Liberalism allows people to pursue their own interests, while also setting up a safety net. This system encourages people to develop their dreams. But it also takes care of what Rawls calls “the least advantaged.”

Rawls gives us a useful tool called “the veil of ignorance.” You ought to pretend, Rawls suggests, that you do not know who you are. You should disregard your race, gender, and net worth. What kind of social system would you imagine was fair, if you didn’t know whether you were rich or poor, white or black, male or female?

This thought experiment encourages us to ignore biased self-interest. This should lead us to see the injustice of sexist, racist and elitist systems. Reasonable and unbiased people should want a system that helps those with special needs and hard luck, because that could be you (or someone you love).

This ends up looking something like the economic and political structure we have in the United States. Entrepreneurs are free to get rich here. But they pay taxes that help the needy. There are details to be debated, including how much the rich should be taxed and how much social support is needed by the poor. Those details are to be sorted out by balancing liberty with concern for the least advantaged.

We can use Rawls’ method to think about a variety of issues. Imagine if you did not know if you were old or young, rich or poor, sick or healthy. You might then agree that those who are most likely to die from COVID-19 (old people and people with medical conditions) should get the vaccine first. Or imagine that you don’t know for the moment whether you are safely housed or not. You might then agree that everyone should have access to shelter, toilets and the security of walls and doors.

And so on.

The liberal idea has been criticized. Libertarians think liberty trumps other values. Socialists want more equality than Rawls provides. Feminists claim Rawls ignores the historical oppression of women. Critics focused on race say he ignores the history of slavery and segregation. And Christian critics claim that secular justice is empty in comparison with the command to love God and your neighbor as yourself.

But liberalism imagines a big tent. Rawls defended a vision of toleration that would allow diverse people to find common ground despite their differences. He called this “overlapping consensus.” That place of reasonable consensus would be where we would debate the historical details and balance equality with liberty.

Overlapping consensus depends upon the basic good will, fairness, and reasonableness of people. Diverse religious people should be able to find consensus because of their basic sense of fairness. Republicans and Democrats should be able to find common ground because they share a common concern for reason and the truth.

As polarization and distrust grow, this idea seems untenable. Conspiracy theories, fake news, identity politics, and growing authoritarianism all serve to undermine the dream of a tolerant, reasonable consensus.

The risk of devolution stems from growing irrationality. Rawls explained in a comment on Hobbes that “so far as people are rational, they will want to avoid having things collapse back into a state of nature.” The state of nature, on this account, is a state of war. Rawls did not mean this as a prophecy. But the risk is there. If people are not rational, we won’t be able to find common ground and society risks collapse.

As we continue to struggle with polarization, we would do well to revisit the liberal idea of a just and tolerant secular society. Rawls gives us reason to hope that we might ignore our differences long enough to find common ground.

Should Biden Pardon Trump?

Fresno Bee, January 24, 2021

On his way out the door, Donald Trump pardoned a bunch of his buddies. Trump didn’t pardon himself, as some suspected he would. And now one wonders whether President Biden might consider a pardon for Trump.

At his inauguration, Biden spoke of unity, love and healing. Would a Trump pardon help? This was Gerald Ford’s reasoning when he pardoned Richard Nixon. Ford explained, “the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former president of the United States.”

There is much to think about here. What is the role of justice and pardon in the life of the nation? And in our own lives?

The pardon power is easily abused. Trump pardoned his cronies, including his son-in-law’s father. Bill Clinton pardoned his brother, Roger Clinton. And Arnold Schwarzenegger commuted the murder sentence of the son of a political ally.

The pardon power exists because the judicial system is a blunt tool. The executive can make exceptions that correct failures and excesses — or that recognize the unique circumstances of wrongdoers.

Presidents Ford and Carter commuted the sentences or granted amnesty to tens of thousands of Vietnam era draft dodgers and deserters. After conscription was abolished and the war ended, it seemed odd to punish those who refused to fight.

Not everyone was happy about this. Those who obeyed the law and fought in Vietnam resented this move. It seemed to discredit their own service and sacrifice.

Justice requires fair and equal treatment. It also demands negative consequences for wrongdoing. If you do the crime, they say, you must do the time.

Strict retributivists argue that forgiveness is unjust since it fails to give wrongdoers what they deserve. But justice is not the only thing that matters. Forgiveness is beneficial emotionally and psychologically. It heals resentment and promotes kindness. Mercy can build reconciliation and help create a new future.

The world’s religious traditions often celebrate these values. Some even imagine God as merciful and compassionate. But how does God’s mercy relate to divine justice? If you want to generate an argument, ask a friend whether they think God would forgive Hitler.

Forgiveness is an exception to the rule of punishment. For this reason it appears arbitrary and capricious. It unfolds that way in our own emotional lives. Anger and resentment fester, until one day they fade away. It is often not clear why this happens.

There is a mystery here that theologians call grace. Forgiveness is a gift. To forgive is to give up on anger and the demand for punishment. It is to give in to love, compassion, and other tender-hearted values.

But should presidents and governors have the power to bestow this kind of gift? In the old days of kings and emperors, people thought that the sovereign’s mercy was guided by God. But we know that our leaders are merely human. And we see that the pardon power can be abused for corrupt and venal purposes.

Nepotism and cronyism are obvious problems. It is wrong to use the promise of a pardon to create loyalty in the cover up of a crime. It is also wrong to sell pardons or to pardon political cronies. These corrupt uses of the pardon power make it appear that justice is not blind, but that she is only winking at the rich and well-connected.

This shows us the deep political problem of the pardon power. Its promiscuous usage undermines faith in the rule of law and the fairness of the justice system. In defense of the rule of law, it seems that we must make examples of those who break the law.

After Ford pardoned Nixon, many were outraged at justice denied. The tranquility Ford hoped for failed to materialize. Nixon appeared to have gotten away with his crimes. As a result, Ford’s political power waned.

So after you are done arguing about God and Hitler, turn the conversation to Ford and Nixon — and Biden and Trump. What is the function of justice, punishment, and pardon in the life of our nation? And what is the role of mercy and forgiveness in your own life?

Curing Viciousness by Climbing the Moral Ladder

Fresno Bee, September 20, 2020

At a recent rally in Reno, President Trump said, “Now I can be really vicious.” “I don’t have to be nice anymore.” Trump said, “the Republican party doesn’t play it rough and tough.” “We play it so nice,” he said. “In the end it’s not right.”

Trump’s viciousness can be seen in the way the president applauded the killing of Michael Reinoehl by U.S. Marshals. Reinoehl was suspected of killing a right-wing protester in Portland, Ore. After the marshals killed him, the president said, “that’s the way it has to be. There has to be retribution.” Of course, in the U.S., police are not justified in delivering retribution.

We are on a slippery slope lubricated by viciousness. To avoid that slope we need to hold fast to what I call the moral ladder. The rungs of the ladder tell us to be nice and kind, to seek justice, to limit power, and to develop mercy.

Morality begins with niceness. Parents tell kids, “If you don’t have something nice to say, don’t say anything at all.” We quote Aesop’s fables and teach children that “Kindness is never wasted.” These nuggets of proverbial wisdom create a foundation for morality.

Niceness is about manners. Manners provide a psychological and social root for moral development. In learning to be nice, children develop decorum and self-control. Niceness can be superficial and deceptive. A con-man can be nice while he picks your pocket. But that behavior is an exception. Niceness is the first rung on the moral ladder.

Kindness is also essential. Kindness is empathy and benevolence. Sometimes this can be phony or done for show. But genuine kindness opens the heart. It is the source of charity and compassion. The next rung on the moral ladder involves extending kindness to friends and even to strangers.

Beyond this, ethical maturity requires that we develop a sense of justice and responsibility. The Roman philosopher Cicero said that kindness is optional but justice is necessary. Kindness is a gift. If you withhold charity, no one would blame you or be angry. It is not nice to be unkind, but it is not evil.

Justice, on the other hand, is required. If you fail to be just, you are blameworthy. Failures of justice— from lying and promise-breaking to outright violations of human rights — create outrage and righteous indignation. Injustice is not simply unkind. It is evil. Justice is another step on the moral ladder.

Here is where retribution is found, offering payback that holds criminals responsible for their misdeeds. A traditional scheme requires eye for eye, life for life. But a complex system has developed in order to administer justice. Among the most important features of our system is the presumption of innocence.

Accused criminals in the United States have a right to defend themselves in a court of law. American police are not authorized to deliver retribution. The state’s power to punish is awesome. That’s why we limit it and make certain that those we punish are actually guilty. Recognition of the necessary limitation of the state’s power to punish takes us higher up the ladder. This is the vantage point of democratic political theory, which is committed to basic human rights and the rule of law.

It is possible to climb still higher. Many moral systems teach that forgiveness and mercy are higher than retribution. Mercy asks us to be kind, even to those who deserve punishment. The last rung on the ladder takes us beyond law toward something transcendent.

This moral ladder represents the basic common sense of our civilization. Common sense teaches that when viciousness is praised, virtue gets trampled. When niceness is kicked aside, kindness becomes impossible. When police take retribution into their own hands, democracy is in danger.

It’s time to get off of this slippery slope and climb back up the moral ladder. We do that by adhering to justice and the rule of law. We do that by teaching our children to be nice and kind, fair and forgiving. Our children are watching. They will eventually take control of this vicious country. If we teach them well, they may be kind enough to show a little mercy on us.

Justice, Compassion, and the Dreamers

DACA controversy reveals conflict between blind justice and broad compassion

Fresno Bee, September 8, 2017

The reconsideration of DACA presents an example of the conflict between justice and compassion. It also shows us the conflict between a narrow conception of our obligations and a broader point of view.

Justice requires impartial application of rules. The goddess of justice is blind. She administers law without considering the identity of those who receive her decisions. Justice is a goddess of the public sphere. She demands that we extend moral concern universally, fairly, and without exception.

Compassion operates differently. The goddess of compassion opens her eyes and her arms. She attends to people’s concrete situations, making exceptions for the disabled, the displaced and the disadvantaged. The motherly goddess of home and hospitality focuses on individual identity and relations of care.

Compassion and justice disagree whenever there is a conflict between mercy and rule-following. Justice requires equal treatment and unbiased judgment. Compassion makes exceptions for special needs and mitigating circumstances.

The DACA debate asks whether we should extend compassion to the children of immigrants who did not knowingly violate the law when their parents brought them here. Justice may ignore this fact and simply apply a rule that says if you are not here legally, you must leave. Compassion begs us to consider that these young people have no other home to return to and bear no responsibility for their predicament.

President Trump’s statement about DACA uses moral language. But he prioritizes compassion for Americans, saying, “We must also have heart and compassion for unemployed, struggling, and forgotten Americans.” He admits there is something unfair about punishing children for the actions of their parents. But he said that fairness for American citizens was his first priority. He explained, “Before we ask what is fair to illegal immigrants, we must also ask what is fair to American families, students, taxpayers and job seekers.”

Trumpian morality applies compassion and justice in a limited nationalistic way. This fits with the president’s America first agenda.

Moralists have often criticized this kind of nationalism. The goddesses of justice and compassion are not national deities. Morality universalizes.

Justice and compassion extend across borders. The goddess of justice is blind even to national identity claims. And the “mother of exiles” – as the Statue of Liberty has been called – opens her arms to the world’s homeless and huddled masses, yearning to breathe free.

ANY RESOLUTION WILL REQUIRE US TO THINK CAREFULLY ABOUT THE NATURE OF LAW AND MORALITY.
IT WILL ALSO REQUIRE US TO REFLECT ON WHAT IT MEANS TO BE AN AMERICAN.

It is not surprising that American religious leaders responded with dismay to Trump’s announcement. The U.S. Conference of Catholic Bishops condemned Trump’s decision. The bishops wrote, “Today’s actions represent a heartbreaking moment in our history that shows the absence of mercy and good will, and a short-sighted vision for the future.”

Mercy and good will are the heart of the ethics of compassion. The bishops extend this globally, applying the commandment to love one’s neighbor in a universal direction.

Trump and his supporters reject this view of morality. They also discount the religious critique of this policy. Steve Bannon, Trump’s former chief strategist, said that limiting immigration was a matter of “national sovereignty.” He also said that the Catholic church has “an economic interest in unlimited immigration,” suggesting that the church wants immigrants to fill pews and coffers.

The president and his supporters have also claimed that Obama’s Deferred Action for Childhood Arrivals program was unconstitutional. They want Congress to take action. But hundreds of law professors, governors, and other legal and political leaders have argued that DACA is constitutional.

The constitutional question is related to the moral question. Does our legal system require strict impartiality and blind justice or does it permit discretion and compassion? Is the Constitution a system that puts America first and focuses only on questions of national sovereignty? Or are there values in our constitutional system that point in a more cosmopolitan direction?

These are not easy questions to answer. We disagree about religion, morality, and the Constitution itself. These conflicts run so deep that they may never be resolved.

But any resolution will require us to think carefully about the nature of law and morality. It will also require us to reflect on what it means to be an American.

http://www.fresnobee.com/article172036532.html