The Little Red Blog

BFD Part 2

Some further thoughts on the Levin/Breitbart/Trump accusations against President Obama:

If you read through the Breitbart summary of Levin’s charges, you’ll see that Levin is not actually accusing the Obama administration of breaking the law. According to Levin, the administration requested FISA permission for a wiretap of Trump last June; it was denied, and Levin does not claim the administration went ahead and installed a wiretap illegally. Instead, the administration supposedly returned to the FISA court in October with a revised wiretap request, which was granted; the wiretap was installed, but legally, with court permission.

Levin further charges that Obama broadened or stretched NSA and other government agency boundaries in order to “seed” incriminating evidence against Trump in order to preclude the new administration from suppressing or destroying it. Levin does not say this was illegal; he merely claims it was politically motivated and part of a silent, behind-the-scenes “coup” against the incoming President.

Thus far, then, even if we grant Levin’s claims for the sake of discussion, the Obama administration followed the law. It’s not as if Barack Obama is being accused of dispatching his own secret “plumbers” to clandestinely wiretap the Trump Building; in the Levin scenario, the administration honored due process and went through the courts for authorization, based on evidence already gathered through normal intelligence channels.

Which leads to this consideration: it shouldn’t be at all difficult to prove or disprove that much of Levin’s narrative. Either the FISA court(s) did or did not receive requests from the Obama White House to surveil Donald Trump; and those requests, if made, either were or were not granted. I’m fairly certain that Congress could find all this out within 24 hours, and I suggest that the appropriate members of Congress do so immediately.  There are records kept of such things, you know.

Finally: if it turns out that the Obama administration did wiretap Donald Trump with authorization from a FISA court, then a full investigation is necessary in order to determine what the evidence was that supported such a wiretap in the first place. If Obama, acting out of purely political motives, somehow hoodwinked a FISA court with flimsy, manufactured evidence, then we deserve to know that and Obama needs to be held accountable.

If, on the other hand, the courts authorized a wiretap because there was genuine, credible evidence of Russian influence on the Trump campaign—well, we deserve to know that too.

And if, lastly and contra Mark Levin, there were no wiretaps or even wiretap requests by Obama against Trump: then Mark Levin and Donald Trump both owe Obama and this nation an apology, and Donald Trump ought to resign.  

My god, has it only been six weeks since the inauguration?  

Monday Miscellany

First, let’s pause for a moment to remember the victims of last Friday night in Sweden.

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This weekend, Rush Limbaugh explained to Chris Wallace why Barack Obama was able to get major legislation passed when he took office in 2009:

You have the first African-American president. You have everybody falling all over themselves to acknowledge that, to reward that. Obama was going to get everything he wanted in the first year because if anybody opposed it, they were going to be accused of being a racist, or a bigot, or who knows what.

Rush, with his usual acumen—he is, after all, the popularizer of the “Barack the Magic Negro” meme—hit the nail right on the head: Barack “I’m black” Obama, our first affirmative-action President, benefitted from the usual deference displayed in America towards people of color and the privilege that comes from being black. Like blacks across the country in all walks of life, Obama got to go to the head of the line and no one dared say a word in opposition.

What’s interesting is that Mr. Limbaugh, who does not even see race but can still opine about it, has long insisted that millions of people voted for Obama only because he is African-American; yet Limbaugh steadfastly denies that anyone at all voted against Obama for the same reason. Apparently only liberals see race; color-blind conservatives merely view the issues rationally and dispassionately, as Martin Luther King would have wanted.

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Rod Dreher (at The American Conservative) has been publicly fuming about the court ruling against the mild-mannered Washington grandmother and florist, Barronelle Stutzman, who refused to do a floral arrangement for a wedding between two men (long-time customers of hers, as it happens). The courts (state courts and appellate courts) have consistently ruled that Ms. Stutzman’s religious beliefs do not allow her to discriminate among paying customers, and that selling (and arranging) flowers for a wedding in no way constitutes an endorsement of said nuptials.

Nowhere in Mr. Dreher’s fulminations does he either acknowledge or deny the relevant undisputed fact: Ms. Stutzman was breaking the law. Perhaps the law ought to include a “religious conscience” exemption, but as currently written in Washington State, it does not. The courts could not have ruled otherwise—unless, heaven forfend, they were to substitute their own judgment for that of the state legislature and thereby make law from the bench; which, as we know, is the very definition of meddling judicial activism.

I would also note that Dreher’s insistence that courts should defer to Ms. Stutzman’s “conscience” is passing strange in itself. Mr. Dreher is no fan of the modern (Protestant) individual whose conscience is the final authority; shouldn’t Ms. Stutzman at least have consulted some clerical authority before deciding, all on her own, what her religious beliefs did and did not allow? Next thing you know, every Tom, Dick, and Martin Luther will be claiming the authority to interpret Scripture and to discern God’s will all on their own.

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Does religion have a future? The best way to figure that out, of course, is via an algorithm which enables you to run computer simulations from which you can then extrapolate in order to make your prediction. What you need is this:

Plus, of course, some good data; or says Boston University philosopher and theologian Wesley Wildman, along with his colleagues at the Modeling Religion Project.

Michael Fitzgerald, writing at Nautilus, sums up what the MRP has concluded thus far:

The Modeling Religion Project continues to refine its models and build new ones. One of its recent models looks at how religion and violent behavior interact. And the team is currently working on a Holy Grail of sorts, LuCy, short for “lucid cybernetic agent,” and a nod to the hominid fossil that is over 3 million years old, to plumb deeper into the origin of religion.

So far, Wildman says, the project has shown that both supernatural and non-supernatural societies can and do occur, depending, of course, on the variables. When he looks past the project, though, Wildman sees the perennial emergence of supernatural ones. People have a basic propensity—a biological imperative—toward a desire to ascribe actions to an agent, a being, even one we cannot see, Wildman says. “Every generation is born supernaturalists.”

That's quite a powerful algorithm, alright, which can conclude that both kinds of society (supernatural and non-supernatural) can and do exist, "depending, of course, on the variables."  I can't wait to find out what the Modeling Religion Project has to say about "how religion and violent behavior interact"; I sure hope they get LuCy online before it's too late.   

http://nautil.us/issue/45/power/atheism-the-computer-model

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According to thousands of mental-health professionals who have never met him, much less examined him, our so-called “President” Donald Trump is—not to put too fine a point on it—certifiably nuts:

Nearly 60,000 mental health professionals have diagnosed President Donald Trump with a type of insanity that is often compared to an alcoholic’s lack of honesty and impulse control. Sparked by Change.org petitions by a top former Johns Hopkins professor and a California congresswoman, the psychiatric community has declared that Trump suffers from “Malignant Narcissism.”

In diagnosing Donald Trump, mental health pros are breaking with a decades-old precedent. After Barry Goldwater won a 1969 defamation lawsuit when psychiatrists called him crazy in Fact magazine, the psychiatric community put in place a “Goldwater Rule” in their ethics handbook that forbids diagnosing public figures.

So why are psychologists breaking with tradition now? A big problem during the Goldwater scenario was that there weren’t objective criteria for diagnosing mental health conditions at the time. Therapists used all sorts of jargon and their best judgment—but they were all over the place. Since then, however, the community has put in place official, objective standards in their bible, the Diagnostic and Statistical Manual of Mental Disorders (DSM for short). This makes it possible to unanimously agree on diagnoses.

As someone who has a fair amount of experience in this area, I can honestly say that last paragraph, and especially the final sentence, is among the funniest things I have ever read.  Shane Snow, author of the article, has a great future ahead of him in comedy.

https://blog.shanesnow.com/donald-trump-and-the-definition-of-insanity-82ab6db008c4#.sgoja5eiy

The Trouble with "Originalism"

Pascal-Emmanuel Gobry can barely contain himself over Neil Gorsuch, President Trump’s pick for the Supreme Court. After mooning over Gorsuch’s “blue eyes” and “outdoorsy Colorado lifestyle” (“he’s so dreamy,” writes Gobry,” adding “I jest…mostly”), M. Gobry gets down to serious business:

Gorsuch's philosophy of legal interpretation is known as "originalism" or "textualism." It's the philosophy that judges should interpret the law and the Constitution according to the exact meaning of the words of the text as it would have been understood at the time it was enacted.

Another way of looking at “originalism” is that it’s the philosophy that judges should ignore over two hundred years of prior judicial interpretation and legal precedent, not to mention social and cultural changes that have taken place, in order to discern and implement the views and attitudes of the constitution’s authors.  This is not dissimilar, in principle, from certain approaches to reading the Bible, the main difference being that Christian and Jewish “originalists” believe they are dealing with the actual word of God, whereas constitutional “originalists” have to acknowledge that they are dealing with the words of a handful of eighteenth-century politicians.

Lest you think that “originalism” is a scheme by which conservatives attempt to put a brake on social and political change, M. Gobry disabuses you of that notion:  

While the conservative movement promotes originalism in the judicial branch, it's important to understand that originalism is not a "conservative" philosophy in the way that left-leaning judges' belief in a "living Constitution" is a "progressive" philosophy. Conservatives don't promote originalism because it leads to conservative outcomes, but because it is the judicial philosophy most compatible with what we see as the best features of the American constitutional system.

That, of course, is entirely disingenuous: scratch an "originalist" and you will find a conservative. "Originalist" judges like the late Antonin Scalia are fond of claiming they are devoted only to the rule of law and uttery unconcerned about policy outcomes, and yet their originalism leads, time and again (no doubt by sheer coincidence), to outcomes that coincide with the desires of the Republican Party.

To continue: what, one may ask, are the “best features” of our system, and how does originalism comport with them? M. Gobry explains:

The Enlightenment thinkers who bequeathed us the Republican system of government — a system that has made the countries who adopted it the freest, most advanced, and most progressive in history — believed in a limited role for judges, because they believed that otherwise judges might become a kind of new monarchy (after all, judges aren't elected and sit for life). In the famous words of the French philosopher Montesquieu, typically a hero of progressives, judges should be "the mouth of the law."

As advocates of originalism freely admit, there is no perfect and foolproof method of interpretation, but originalism is the one that most respects the actual words of the Constitution and laws, which were written by the duly elected representatives of the people, who are the final owners of sovereignty in the American constitutional system. A world without orginalism is a world where unelected judges can decide social policy at a whim and do so despite having no constitutional warrant for it and having been elected for it by nobody. This concept is in contradiction with values central to our system of government, such as representative democracy and the rule of law.

To dispatch the low-hanging fruit first: even “originalist” judges like Neil Gorsuch and the late Antonin Scalia are “elected by nobody” and are just as capable as "left-leaning judges" of overturning “laws, which were written by the duly elected representatives of the people”.  As much as conservatives would like us to believe otherwise, "originalist" is not the opposite of “activist”. Originalist judges do not defer to contemporary lawmakers but to the presumed opinions of the aforementioned worthies from the eighteenth century. 

Were a duly elected 21st-century Congress, for instance, to pass a law requiring all Americans to purchase healthcare insurance, rest assured that an originalist judge, though unelected, would toss out such tyranny in a heartbeat; laws attempting to regulate the ownership of firearms would suffer a similar fate.  “Originalist” judges have even found ways to intervene in a national election, ordering the counting of votes to stop lest the "legitimacy" of the purported winner be questioned.

The claim that the only alternative to "originalism" is the "whim" of unconstrained judges is nonsense. Judges are constrained by a variety of factors, including the text of the Constitution, two hundred years of precedent and interpretation, social and political context, arguments advanced by lawyers and judicial colleagues, etc.  They are also influenced, if not constrained, by their own life experience, as a wise Latina once pointed out. 

Jurisprudence does not take place in a vacuum, nor is there any way for modern judges to ascertain conclusively what James Madison would do about our contemporary contretemps.  Supreme Court judges do not need to be "originalists". They need to be men and women sensitive both to our history and to our current social and political dilemmas; they need to be both aware of the past and engaged with the present. They do not need to be without opinions and preferences; they need only to be conscious of them and to do their utmost to put the law and sound legal reasoning ahead of them.

http://theweek.com/articles/677349/why-neil-gorsuch-fantastic-supreme-court-pick  
https://en.wikipedia.org/wiki/Originalism  

Don't Like the Supreme Court? Just Ignore It!

In an age when conservatives scream about President Obama’s use and supposed abuse of executive authority, Stephen Krason has an interesting take: he thinks the problem with the federal government is that presidents are too deferential to the Supreme Court.  To be precise, he thinks that, with “the right president,” the Court needs to be actively defied by the executive branch:

It’s time to readjust our thinking and restore the Supreme Court to the place and powers it was intended to have in our constitutional order—before it further damages the very Constitution that created it and extends the cultural erosion it has been a main cause of. This requires recovering the constitutionally based checks on the Court which long ago fell into desuetude, and the only realistic one now—when we have the right president—is not mere executive appointment but executive resistance.

The Supreme Court, says Krason, is not the boss of the President or of Congress or of us; it’s just a bunch of opinionated people in robes, with no more insight into what is and what isn’t “constitutional” than anyone else.  Rather than try to reform or refashion the Court, Krason believes we should just elect a president who promises to ignore it:

Instead of judging presidential candidates through the lens of whom they’ll appoint to the Supreme Court, we should be thinking about whether a prospective president is willing to resist and refuse to enforce clearly unconstitutional decisions of the Court. That is perhaps the most fundamental presidential check on the judiciary, and the one that will have the most immediate effect. This is much better than waiting for a possible opening on the Court and then seeing if the person selected, which for Republican presidents usually means a compromise choice to weaken leftist opposition, will be able to help stem our constitutional decline over a twenty-year or so period.

Far from wondering if a president has the power to do this—that is, blocking an unconstitutional judicial action from taking effect—I would argue that it’s his duty. After all, he takes an oath to uphold the Constitution. Without a doubt, that includes stopping any attempt by another branch of government to subvert it.

According to Krason, presidential usurpation of court “authority” is just what the doctor ordered, assuming the doctor is opposed to same-sex marriage:

How might a president opposed to the cultural leftist drift of the Supreme Court have responded, say, to the Obergefell same-sex “marriage” decision? He could have said that any state that didn’t want to issue marriages licenses to same-sex couples would not have to do so, and that to back it up he would have ordered the U.S. Marshals Service—which is really an executive agency under presidential control even though it normally serves the federal courts—to block any attempt to enforce court orders directed at recalcitrant state officials or even deliver them to them.

I for one like the cut of Krason’s separation-of-powers jib, and I can see how nicely his strategy could play out for liberals.  For instance, how might a president opposed to the Citizens United decision have responded?  He could have said that any state—say, Montana—that wanted to retain restrictions on campaign financing was free to do so, and he could have used the U.S. Marshals Service to back that up.  What if he was also opposed to the Supreme Court’s Heller ruling on gun rights? He could have said that states and cities were free to ban individual ownership of handguns, Antonin Scalia (RIP) be damned.  Hobby Lobby?  The president could have ordered the Marshals Service to arrest recalcitrant faith-based employers who wouldn’t comply with the Obamacare contraception mandate.  He could also have had governors arrested who refused Medicaid expansion, governors who hid behind the Supreme Court’s assertion that they had the right to do so.

Had President Obama done any of those things, on the grounds that he had not just the right but the duty to defend and enforce his interpretation of the Constitution, I guarantee you we would not have heard a peep of protest from Stephen Krason, who is after all an honorable man—except, wait, I forgot: Krason’s entire theory is premised on having “the right president” in place, and I seriously doubt that President Obama qualifies.¹

http://www.crisismagazine.com/2016/curtail-judicial-activism

¹ I can’t believe it took me until the final months of the Obama presidency to understand this: Republicans and conservatives, being staunch defenders of the Constitution, have never fully accepted Barack Obama as president—because, according to the original Constitution, he is only 3/5 of a president! This accounts for why Republicans have given him only 3/5 of the respect they might otherwise accord to a Democrat in the White House, and why they seem to believe he should have only 3/5 of the power other presidents have wielded.  It makes perfect sense.

Breakfast Links

It’s long been possible to separate sex from reproduction—it’s called “birth control”—but in the near future, according to Henry Greely (at Vox), human reproduction will no longer require sex at all.  “In 20 to 40 years, most Americans won’t have sex to reproduce” is the disturbing lede to Greely’s disturbing article; and while Greely seems resigned to the prospect he describes, he acknowledges that it will bring with it a legion of practical and ethical dilemmas:

There are good reasons to be concerned about…the host of new reproductive technologies lurking at the horizon. Safety, coercion, equality, and family relationships raise real and tricky questions. Many people, though not me, will also consider questions of "naturalness" or "playing God" to be real and serious.

Should [selection] for cosmetic or behavioral traits be allowed? What about enhancement? Or parents selecting for certain disabilities, like deafness? Or picking boy or girl? Should unibabies be banned, or clones?

Will legislatures try, for the first time in America, to regulate assisted reproduction choices? If they do, will the Constitution, which has offered some protection for reproductive and parental rights in areas ranging from contraception and abortion to limiting state control over children’s education, allow them to? And if one state bans it, how will it stop its citizens from visiting more permissive states?  Governments everywhere will have to answer these questions, and many will answer at least some of them differently, based on their different cultures.

Families will also have to answer these questions. How much safety from genetic risks will they want for their children in a universe where perfect safety can never be obtained? How much choice will they want in their child’s non-health traits?

What would you want? Would you use embryo selection or gene editing, and, if so, to what ends?

We need to start thinking about these questions. The future is coming. It may not be exactly the future I foresee, but, like it or not, it will certainly feature far more choices, for families and for societies, about making babies.

That sound you hear in the distance is Rod Dreher’s head exploding; but after that sound fades away, the rest of us, as Greely says, are going to have to grapple with a host of difficult ethical issues. Just as medical technology has forced upon us increasingly contentious end-of-life decisions: it will now pose equally contentious decisions about the beginning of life.  I don’t envy those who will have to make those decisions. 

http://www.vox.com/2016/9/16/12931962/future-sex-reproductive-technology-ethics-ivf

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Speaking of making Rod Dreher’s head explode: Emma Green (at The Atlantic) weighs in on a recent report by the U.S. Commission on Civil Rights.  Ms. Green concludes that “Even the government’s smartest lawyers can’t figure out religious liberty,” because “conflicts between secular ideals and tenets of faith are ultimately problems of culture, not law.” She quotes the commission’s chair, Martin Castro:

“The phrases ‘religious liberty’ and ‘religious freedom’ will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy, or any form of intolerance.”

And then she quotes a dissenting commission member, Peter Kirsanow:

“The conflict between religious liberty and nondiscrimination principles is profound...The passions involved may be fiercer than in any civil rights struggle since the 1960s…Religious liberty is an undisputed constitutional right. With the exception of racial nondiscrimination principles embedded in the Thirteenth, Fourteenth, and Fifteenth Amendments, nondiscrimination principles are statutory or judicially created constructs.”

Green quotes Kirsanow further regarding the fundamental conflict:

“Secularism…holds an individual’s unfettered sexual self-expression as a preeminent concern because it is an aspect of their self-creation…[Christianity holds that] individuals are not their own judge, but rather are subject to divine law and divine judgment. The morality of a person’s conduct does not ultimately depend upon whether he thinks it is right, or whether it accords with his desires, but whether it conforms to divine law.”   

Ms. Green sees nothing but conflict ahead:

United States law holds that free expression of religion and [of] identity are both important. There’s no easy formula for pre-determining when each should be given precedence, particularly when they clash in fundamental ways.

These conflicts will continue…Specific cases will be judged against widely varying statutes and bodies of interpretation, and lawyers will continue to wage first-principle battles over the meaning of freedom. The system will remain confused, because the law is but clunky machinery for reconciling opposing world views.

It’s the “clunky machinery” and the resulting conflict, confusion, and uncertainty which so terrify and/or outrage Rod Dreher that he’s promoting the Benedict Option (due out in March 2017, pre-order now!).  The rest of us will just have to put up with it all, yet more proof of the difficulty of living in a diverse society in which people have exasperatingly “opposing world views”. 

It could be worse, of course; we could live in a totally homogeneous society in which everyone holds the identical world view.

http://www.theatlantic.com/politics/archive/2016/09/us-commission-civil-rights-religious-liberty-report/499874/

Actual Human Presence

I ain't lookin' for praise or pity / I ain't comin' 'round searchin' for a crutch /
I just want someone to talk to / And a little of that Human Touch   (Bruce Springsteen)

I’m going to quote at length, out of admiration but also for my own purposes, from Eve Tushnet’s article (at The American Conservative) “The Right to Look Your Judge in the Eye”:

Last month a Michigan appeals court considered the case of a man convicted of methamphetamine possession. Although the man received an unusually harsh sentence (30 to 120 months in prison, based in part on his prior record), the decision of the three appellate judges addresses not only the length of the sentence but also, and at greater length, the way it was delivered: via videoconferencing. The defendant was in the county jail when he was sentenced; he never shared a courtroom with the judge who determined his fate.

On a basic legal level, the court noted that Michigan law specifies when you can sentence via videoconferencing, and it’s not an option in felony cases. But the appeals court’s decision raises deeper philosophical issues. The three appellate judges provide a stirring defense of the antimodern belief that human dignity inheres not solely in the mind or the will, but in the body.

All men are not created equal in intellect, in temperament, or in freedom of choice. But all of us share the body’s fevers and its final silence. This recognition that human equality is found in the brute fact that we are individual, embodied human beings drives the pro-life movement: before we’re even capable of thought, our mute bodies speak our dignity and our infinite worth.

Liberalism tends to treat the body as an instrument of the will; the Michigan case makes little sense unless you acknowledge that the body is an icon.

In the gaze of the defendant the judge encounters a human dignity and equality that go beyond what rationalistic discourse can prove; they must be experienced. Like all sacred things they must be submitted to rather than comprehended.

“The right to look your judge in the eye” is an attempt to put into words something of that irreducible encounter. The judge has a “duty to acknowledge the humanity of even a convicted felon,” the court says: to recognize him- or herself in the eyes of the defendant.

And so defendants stand in court, and judges must meet their gaze—it’s intensely difficult to meet the eyes of someone you’re being asked to judge—in order to unsettle the judges, in order to remind them that their judgment is merely temporal and provisional.

The Michigan case, and the reasoning behind it, should also affect how we view the increasing use of videoconferencing in other criminal-justice settings, especially prison visits. Videoconferencing is increasingly used as an alternative to in-person prison visits—some prisons have banned in-person visits entirely. The inflated costs of the new technology, as always, are borne by the loved ones of the prisoner. Videoconferencing is better than nothing, and having it as an option makes sense; but as the Michigan decision notes, quoting an earlier case, “virtual reality is rarely a substitute for actual presence.”

The willingness to share physical space with someone, to confront them in person and meet their gaze, can be profoundly humbling. The unwillingness to do this–the use of power to prevent it—is always dehumanizing. This is part of what it means to be human: to keep body and soul together.

Allow me now to juxtapose against Ms. Tushnet’s wise and eminently humane perspective the following self-serving (and poorly written) defense (from Genoa Telepsychiatry) of “telepsychiatry”:

Because technology use has become an essential human activity, the future of telepsychiatry is assured. Telepsychiatry leverages cutting edge technology to modernize the health care industry and respond to a number of challenges that currently exist. Though we’ve seen an increase in telemedicine in general, the future for telepsychiatry is particularly bright.

Unlike most other medical professionals, psychiatrists do not have to be in the same room as their patients in order to conduct a comprehensive evaluation and administer high-quality care.

While using online videoconferencing, psychiatrists maintain their ability to observe patients’ range of facial expressions, hygiene, tone, rate of speech and a host of other subtle nonverbal cues and behaviors. As a result, the quality of care delivered through this medium is not compromised.

Studies have shown that telepsychiatry is as effective as, and in some cases even more effective than, the standard, face-to-face model of care (Hilty, Ferrer, Burke Parish, Johnston, Callahan, & Yellowlees, 2013;Zoler, 2012). Though there are certainly differences between traditional, in-person psychiatry and telepsychiatry, the pros indisputably outweigh the cons. Hospitals, clinics, providers, patients and whole communities stand to benefit from psychiatric services offered via telecommunication.

What Eve Tushnet objects to in the criminal justice system is increasingly hailed as the future of psychiatry and of the provision of mental-health services—especially in places like my home state of Montana, where psychiatrists are scarce and the distances one must travel to access them are formidable.

I have met my fair share of psychiatrists whose human warmth and bedside manner left much to be desired—but at least my dislike for them (and, for all I know, theirs for me) was formed by in-person interactions.  While psychiatrists and counselors do not technically stand in judgment of clients, the relationship often feels—from the client’s perspective—like being on trial.  And just as criminal defendants face a judge from a position of perceived inferiority, so too do clients/patients receiving mental health services: like a judge, a psychiatrist has the advantage in status, in education, in specialized training, usually in social class, and—most significantly—in being presumed sane where the client is presumed otherwise.

If, on top of all that, you add a physical separation between provider and client—that is, you arrange it so the provider is not even “breathing the same air” as the person being diagnosed—you underscore the imbalances in the relationship and reinforce the client’s sense of unworthiness.

Clients with resources, of course, will continue to be seen in person by psychiatrists and counselors.  It will be the poor, and especially the non-urban poor, who will be consigned to the status of “teleclients”.  As Eve Tushnet says, such services are better than no services at all, but it’s a sad commentary if that’s in fact the best we can do to help people struggling with mental and emotional issues.  And if we’ve come increasingly to believe that human presence is a dispensable factor in the practice of law, medicine, psychiatry, and education (online learning, no campus needed!): then we’re in danger of leaving ourselves no answer at all to the question, what are people for?

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http://www.theamericanconservative.com/articles/the-right-to-look-your-judge-in-the-eye/  

https://www.1docway.com/blog/2015/12/17/the-future-of-psychiatry-is-online

The Tyranny of Doing Your Job

Citing a recent court decision, Gerald Russello (at The Catholic Thing) cannot believe it has come to this:

If someone cannot pay, a pharmacy can refuse them anything.  But if a pharmacist believes dispensing a drug violates her religious beliefs, [the state of] Washington has essentially said that person should not work as a pharmacist. ¹

That logic, which horrifies Russello, strikes me as eminently sensible.  I am not out to get Christians, Catholics, or anyone else; but people who cannot or will not do what the job of pharmacist entails should not be pharmacists.  Similarly, individuals who don’t want to comply with state laws regarding marriage should not hold jobs requiring them to issue or sign marriage certificates.  I would even go so far as to suggest that a religiously motivated teetotaler should not seek work as a bartender.

The solution is simple: people should stop thinking that their religious scruples can be imposed on others.  If you are a pharmacist who believes that contraceptives and “abortifacients” violate God’s law, then by all means don’t use them; no one, after all, is trying to force you to do so.  But don’t put your conscience in the way of someone who is doing nothing more heinous than trying to fill a perfectly legal prescription; just do your job, perhaps contenting yourself (and placating your God) by giving the customer a frown of disapproval or by saying several Hail Mary’s under your breath.

Mr. Russello believes there’s no harm or even inconvenience when a customer is turned away and told to fill her diabolical prescription for baby-killing slut pills elsewhere.  He also notes that plenty of states have “conscience” exemptions that protect the “religious liberties” of pharmacists.  Alright then: why don’t faith-based pharmacists in Washington simply move to one of those other states? Surely that wouldn’t be harmful or inconvenient to them; and why would Catholic pharmacists want to live in a state that persecutes them, anyway?

Why stop with pharmacists?  Should a Catholic who works for an insurance agency have the right to refuse to sell or even to process healthcare policies which provide contraceptive coverage?  Should a Catholic working in the company's mail room refuse to mail out those policies?  By Russello’s logic, such individuals not only can refuse but must refuse to be complicit with such evil.  Speaking of which, who decides what constitutes culpable “complicity with evil”?  If the Catholic pharmacist has to refrain from selling contraceptives, how about the Catholic who works at the same store but in another department?  Don’t kid yourself: that person’s wages (and soul!) are tainted by the fact that the employer is trafficking in abortifacients.  Working a few aisles over from evil can’t possibly be a "get out of Hell free" card; therefore, Catholics can no longer work in such places, period—and don’t get me started on why Catholics must also resign en masse from working in hospitals, where so much evil goes on right under their noses.  It's a sinful world, for certain; best to keep away from it as much as possible, lest one be somehow complicit in it.

Mr. Russello concludes, The bad logic…of course, cannot be limited just to pharmacies. If even explicit intent to force religious persons to violate their conscience is not enough, there is no natural limit to what states like Washington can impose – and in which professions a state will next declare religious believers unwelcome.

Going out on a limb here, I predict that religious believers will be declared unwelcome in any profession where they claim the right not to follow the law or the right not to adhere to the established professional code of conduct.  I further predict that even non-believers who won’t do those things will be declared unwelcome—as I was years ago when I decided (after belatedly consulting my conscience) that harassing poor people over their unpaid debts was an unconscionable way to make a living; my employer, noting my increasingly obvious distaste for the job, fired me—best thing, as it turned out, that could have happened to me, and probably equally good for my employer.

There is a place for conscientious objection; I’m just not sure that the pharmacy at your local CVS, Walmart, or Walgreen’s is where it belongs.  I respect and admire anyone who resigns a job that violates her conscience; I have no respect, however, for people who want to keep their job and not do it, too, all the while making a show of how religiously conscientious they are.  

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https://www.thecatholicthing.org/2016/08/25/open-season-on-religious-persons/

¹ I'd be a lot more sympathetic to Gerald Russello if he chose to expand, and expound, on the scandal of denying necessary medicines or medical procedures to people who can't afford to pay for them--but then, that's why our healthcare system is the best in the world, right?

Boredom, Pseudolaw, and Resurrection

At Aeon, Andreas Elpidorou thinks that boredom, properly understood, is not only valuable but "precious": as a warning sign, that is, that we need to do something about the situation we find boring.  He explains:

Think of boredom as an internal alarm. When it goes off, it is telling us something. It signals the presence of an unfulfilling situation. But it is an alarm equipped with a shock. The negative and aversive experience of boredom motivates us – one might even say, pushes us – to pursue a different situation, one that seems more meaningful or interesting, just as a sharp pain motivates us not to put pins into our bodies.

When bored, the situations in which we find ourselves often appear distant or foreign – that is, removed from our interests and projects. They lack meaning for us. We feel uneasy and restless. Our minds wander. We mentally catalogue alternative goals. Even our perception of the passage of time is altered. In a state of boredom, it appears to drag. We want to escape from boredom’s unpleasant grip. When the tasks with which we are currently engaged have lost their luster, boredom promotes the pursuit of alternative goals by by its very character.

In promoting the value of boredom, Mr. Elpidorou neglects to mention a very common predicament, that in which we find ourselves bored but have no way to escape the boredom--the boredom of a job we endure because we have to make money, the boredom of a lecture we have to sit through in order to get our degree. As motivational as boredom can be, it is all but unbearable when one's exits from it are closed off. Elpidorou tacitly acknowledges this when he writes "We should give thanks for [boredom]--and avoid it like the plague."

https://aeon.co/essays/life-without-boredom-would-be-a-nightmare

Also at Aeon, Colin McRoberts writes about the dangers of "pseudolaw," the legal equivalent of "pseudoscience" peddled by the legal equivalent of quacks and cranks:

Would you like to stop paying taxes? Just renounce your 14th Amendment United States citizenship and claim ownership of the secret cestui que (beneficiary) trust that the US government created in your name on the day that you were born. Credit card debt? No problem, the trust is flush with millions or billions of dollars that you can use, just as soon as you establish ownership of your verified birth certificate and the corporate entity that has your name – but in all-capital letters.

These are some of the claims advanced by the self-styled experts who insist that everything you know about the legal system is wrong. These days, we are distressingly familiar with alternative, conspiracy-theory versions of science and medicine. Less well-known is the legal version of this phenomenon, not as visible as creationism or anti-vaccine activism but in many ways as destructive. Just ask the residents of Harney County, Oregon, who recently saw militants occupying the Malheur Wildlife Refuge emboldened by ‘judges’ and ‘citizen grand juries’ who had less to do with actual law than fantasy football does with the US National Football League.

McRoberts has more to say on the subject at the blog Violent Metaphors, where he and Jennifer Raff take on anti-vaxxers, anti-taxers, and others who dwell at "the intersection of science, pseudoscience, and conflict." Among other topics covered on the blog is "The Fine Art of Talking to People Who are Wrong," which should come in handy for those of us who always know we're right but have a distressingly hard time getting everyone else to agree.

https://aeon.co/opinions/here-comes-pseudolaw-a-weird-little-cousin-of-pseudoscience

http://violentmetaphors.com/2015/01/29/are-you-arguing-with-yourself/

Finally, though I'm a week late getting to it, Giles Fraser offers the best thing I've read lately about the Resurrection:

The resurrection is not an argument, still less a philosophical argument. That’s why rational scepticism about the empty tomb just bounces off the surface. As Jonathan Swift was right to say, you can’t reason people out of something they weren’t reasoned into. The resurrection is more an identity than an argument. That’s why we turn it into participatory theatre, with incense and candles. It is who we are – our word for how we go on in the face of overwhelming odds. It’s the Christian term for defiance.

Reverend Fraser also says that "The resurrection is the name we give to the multiple ways we push back against the darkness." And to that, atheist that I am, I'm willing to say Amen.

http://www.theguardian.com/commentisfree/belief/2016/mar/31/the-resurrection-isnt-an-argument-its-the-christian-word-for-defiance

Book Review: "UNFAIR," by Adam Benforado

In his book UNFAIR: The New Science of Criminal Injustice, Adam Benforado puts his finger on the real problem with our criminal justice system: it relies on human beings.

Human beings, in case you didn't already know and as Benforado documents, are notoriously unreliable, easily influenced, subject to all sorts of biases, afflicted with faulty memories, cursed with emotional attachments, and prone to making bad decisions.  Why in the world would we allow such flawed creatures to decide the fate of someone accused of a crime?  In the past, perhaps, we had no choice; but today, thanks to technology, we can all but eliminate that pesky human element.

And Adam Benforado is all for it:

“Just because humans created the criminal justice system,” Benforado explains, “doesn’t mean that we are ideal operators of its processes and institutions.  Our natural limitations”—which, as I just noted, are legion—“can prevent us from living up to our principles and achieving our goals.  And the implication is that we need to reduce our legal system’s reliance on human perception, memory, and judgment.”

Anticipating skeptics, Benforado cites the use of technology, in fields ranging from aviation to traffic planning to eye surgery to professional sports, to achieve desired results: “Baseball teams that once picked players based on the intuitions of scouts now rely increasingly on statistical analyses to field winning teams.” ¹ Benforado’s logic seems impeccable: “One of the best ways to address the unfairness that comes from the limitations of the human brain is simply to stop depending on human faculties.” 

Brilliant!  Human faculties may have been good enough for grandma and grandpa, but they didn’t have smartphones:

“With a proliferation of security cameras, an army of private citizens armed with smartphones, and more recording in interrogation rooms, squad cars, and prisons, the need to rely on the vagaries of human memory is reduced.  And the less dependent we are on eyewitness identifications and testimony, the less we have to place our trust in the ability of jurors to assess credibility.”

Benforado admits that ubiquitous surveillance may present the occasional civil liberties problem, but he’s pretty sure it’s worth it; in fact, he says, “it seems misguided to fret about the impact of such technology when the consequences of a mistake are so high.”

Fret no more, because it’s coming whether we like it or not: “In the decades and centuries to come, we will have to decide how far we are willing to go in the quest to reduce our reliance on human cognition.  One possibility is to dispose of live trials…If jurors and judges can be swayed by the attractiveness of a witness, a defendant’s skin color, or the prosecutor’s mannerisms, might it not make sense to one day move proceedings to a virtual environment, where participants interact through avatars designed to eliminate those biases?”

Once again, brilliant: that blonde hussy in the too-tight sweater and the too-short skirt won’t get away with murder in a virtual courtroom the way she always does in real life!  And why stop with courtroom proceedings?  The same biases, conscious and unconscious, that distort the criminal justice system also distort education, politics, the workplace—pretty much any place where humans interact.  Why should taller and more attractive people get better grades and higher salaries?  Why should we vote for politicians based on their appearance or their disarming eloquence?  If we could just dispense with actual human beings, offload our entire existence into a neutral virtual environment, and substitute bland interchangeable avatars (or robots!) for our emotionally and cognitively erratic selves: wouldn’t this be a better world?

It would surely be a different world.  It seems to me, though, that if we follow Benforado’s advice and assign machines more and more of our human functions, all that will be left for us to do—and we’ll have plenty of time to do it—would be to ponder the seemingly simple but increasingly perplexing question: What are people for? 

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¹ The ur-text in this case is Michael Lewis’ MONEYBALL, which was made into a passable film starring Brad Pitt.  If it’s good enough for Billy Beane, it ought to be good enough for the courts! 

Poor Little Sisters

Michael Brendan Dougherty (hereinafter "MBD") weighs in, with his usual acumen, on the legal appeal filed with the Supreme Court on behalf of the Little Sisters of the Poor:

The Little Sisters' case is simple, straightforward, and based on moral premises that are widely shared outside of their faith and recognized in law. The Little Sisters should win at the Supreme Court.

Before getting into the weeds of this case, it should be noted that MBD never mentions, much less grapples with, the fact that the Little Sisters have already been to federal court (the 10^th Circuit Court) and lost.  This does not mean they won’t win their appeal to SCOTUS; it just means that winning is unlikely to be the “slam dunk” that MBD characterizes it as being. 

As for the case being “simple [and] straightforward,” Emma Green (at The Atlantic) begs to differ:

The first thing to know about these [contraception mandate] cases is that they are incredibly complicated. The Court granted cert in seven different cases related to this topic, which means they’ve agreed to hear the questions in those seven cases. All of them have come through different circuit courts in the past months, where they’ve mostly lost.

Finally, let us consider the “moral premises” of the case, which premises MBD believes are both “widely shared…and recognized in law”:

Like many religious groups, the Little Sisters found that the Affordable Care Act's mandate to provide copay-free contraceptive services as part of the compensation they give employees violated their religious conscience. The Little Sisters argue that ObamaCare makes them unable to hire workers without becoming complicit in acts that are intrinsically sinful. Catholics believe fertility and virility are signs of health, a gift from God. Assisting someone in the artificial suppression of these gifts is to assist her in self harm, even if the person doesn't see it that way. There's no clearer form of being an accessory to an act than to contract for it. The nuns cannot in good conscience do so.

MBD anticipates certain objections from his readers, but he is prepared to rebut them:

[Some will object that] if there was no mandate, in all likelihood employees would buy their own contraceptive services or other sinful items with their wages. If the Sisters are so opposed to this stuff, how can they hire anyone in good conscience when the employee might spend her wages on sin? Simple: The wages paid by the Little Sisters are the just reward of labor given to the employee. What the employee does with her justly earned money is her own moral responsibility.

Distinction, meet difference; what the employee does with her employer-provided insurance coverage is also “her own moral responsibility.”  The coverage which supposedly makes the Little Sisters “complicit” does not require that an employee purchase contraceptives, it merely makes them available for purchase; as does, for that matter, the existence of the drugstore down the street where the Little Sisters occasionally stop and shop for various non-contraceptive items—are they thereby complicit in keeping the drugstore and its invidious pharmaceutical products in business?

MBD encounters yet another objection:

Still, you may say, how can the opt-out form — in which the government steps in to provide contraceptive services that the Little Sisters won't pay for — be a burden on the nuns? Very easy. The Little Sisters' argument is that the form as it has been devised doesn't just certify that the Little Sisters won't provide this kind of medical coverage as part of their compensation, but that it authorizes and explicitly triggers the government to do so. The nuns are still an accessory to sin.

“Accessory to sin” is, of course, not a legal term at all, despite MBD’s assertion that the claim is “recognized in law”.  What the law recognizes is the category of “accessory” to a crime--a crime being something both different and distinct from a sin.¹  

Luckily, MBD has a solution to all this, once the Little Sisters get their slam dunk:

The government could waive its form, and design one in which insurers or plan managers simply inform the government which users are under plans without these services, allowing the government to provide them afterward.

Hey presto, problem solved!  The insurer, not the Little Sisters, fills out a form, and the employees of the Little Sisters still get full coverage (and possibly contraceptives!) as mandated by the Affordable Care Act, and the Little Sisters, bless their souls, are no longer accessories to sin. 

To anyone not educated by Jesuits, this appears to be picking at nits, but MBD assures us it’s important:

The Little Sisters' objection may seem like a small thing to an outsider, but in cases of religious burdens, it almost always does. Roman authorities wanted religious dissenters to merely throw smoke at idols of Caesar; they didn't ask for true belief in him. Henry VIII wrote a niggling, lawyerly form to swear loyalty to him above the pope.

So MBD, who mocked “legal commentators” who claimed (supposedly) that a victory in court for the Little Sisters would “thrust [us] into the darkness of theocracy,” now compares the contraception mandate to the Roman insistence on sacrificing to Caesar, and suggests that a defeat for the Little Sisters will be as consequential as Henry VIII’s break from Rome.

I have no idea how this issue will play out in the Supreme Court.  I do know, however, that the “niggling, lawyerly” solution MBD advocates makes it clear—again, to those of us not educated by Jesuits—how little, really, is at stake.   When Jesus was asked about paying taxes, and he noted the image of Caesar on a coin, he said “Render unto Caesar what is Caesar’s”; he did not say, “Render unto Caesar what is Caesar’s, but do not do so directly; rather, in order not to be an accessory to sin, make sure you have an ironclad third-party workaround.”

There are many things for which the Little Sisters of the Poor ought to be praised, admired, and emulated; this lawsuit isn’t one of them.

____________________________________________

http://theweek.com/articles/587966/why-catholic-nuns-obamacare-case-should-slam-dunk-supreme-court

http://www.theatlantic.com/politics/archive/2015/11/the-little-sisters-of-the-poor-are-headed-to-the-supreme-court/414729/  

¹ Unless, of course, you happen to believe that it's automatically a sin to commit a crime--any crime, including jaywalking or violating a local noise ordinance--because of the implicit defiance of authority.