The Innocence of Doggies

We keep the dog's 20  pound bag of kibble in a cabinet under the kitchen counter.   The bag is torn open  at the top and, when it's  chow time,  I open the cabinet door, reach into the bag and scoop out a cup of kibble which is then emptied into Nicki's bowl.   

(Actually I blend it into a powder to which then I add water so as to make a hamburger-like meal.)

Nicki is certainly smart enough to figure out the significance of the bag-scoop-bowl sequence.  Earlier in the year, he also figured out that if he nudged into the open cabinet quickly enough, he could beat me to the bag and scarf up some extra kibble.

He did this with a guilty mind at first.  I know this because when I would touch his hind sides he would recoil sharply as if to avoid a punishment.    But of course, I never punished him and of late he just casually makes way to let me through, ever scarfing up as much kibble as he can hold in a maw-full.   In all events, he most clearly thinks that this is the way to get extra munchies. 

What never occurs to the sweet, innocent doggie is that I could always lessen the amount I scoop up. 

His cheat makes me feel like a cheater. 

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Reasonable Wrongness

Somewhat like an alarm going off in the smouldering remains of a fire, the Supreme Court’s decision in Heien v. North Carolina, upholding a search incident to a broken tail-light, has set off a flurry of public criticism.

Notwithstanding vociferous exasperation from some quarters in the media, the Court’s  ruling had nothing to do with Justice Scalia’s subservience to corporate interests.  It was rather the putrid fruit of a poisonous jurisprudence.

North Carolina law requires a vehicle to have “a stop lamp” (nowadays called a tail-light).  Heien’s vehicle had two, one of which was not working.  The essence of the Court’s decision was that even though Mr. Heien had done nothing wrong his stop, detention and search were nevertheless lawful. 

It always helps to begin at the beginning of things which, in the law’s case, is English.

Charles Pratt, 1st Earl of Camden from whose decision
in Entick v Carrington the Fourth Amendement derives

The American distaste for prepositional clauses leads them to think that in order to arrest someone there has to be “probable cause”.  Not so. Non-use of prepositional clauses turns hard thinking into mush.  In order for a search or seizure to take place there must be probable cause to believe that a crime has been or is being committed.

Once it is understood what probable cause really is, the wretched absurdity of the Court’s decision unfolds as if unto a bowl. 

How is it possible for there to be probable cause to believe a crime was committed when what was observed was not a crime at all?   It isn’t.  To say otherwise, is goobledygook, with emphasis on the “gook.”

How did the Supreme Court get itself to swallow this gook?  It did so by driving a truck the wrong way through the tunnel of the word “believe”.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

For at least a century and a half after it was written, the Fourth Amendment was understood to require a warrant and probable cause before an arrest or search could be undertaken.  In other words, the word “reasonable” was understood to be contextually defined and limited by the ensuing clauses.  “Reasonable” meant having a warrant and probable cause. 

In 1925, in Carrol v. United States (1925)  U.S., 267 U.S. 132 the Supreme Court held that it wasn’t always necessary to have a warrant so long as there had been  probable cause for the search.

It will be noted that this abbreviated way of speaking -- which substitutes the phrase “for the search” for “to believe a crime has been committed, thereby warranting a search” --  runs the risk of altering the constitutional context unless one remembers precisely that which has been skipped over.

That said, the Carrol  decision did not alter the long understood rule that “reasonable” meant having probable cause to believe a crime was committed.

Then came Rehnquist.  This man, joined by other early proponents of the national security police state, had a deep and abiding antipathy toward the Fourth, Sixth and Eighth amendments. Under Rehnquist’s guidance the word "reasonable" became decoupled from the rest of the Fourth Amendment.

This decoupling contravened all canons of statutory or constitutional construction.   If the warrant and probable cause clauses had nothing to do with the constitutional requirements for a search why bother stating them at all? It would suffice to simply have written: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated [.]"

However, it is axiomatic that all words in a statute or provision must be given effect.  If a court can ignore part of a sentence or paragraph why bother with written statutes and laws at all?

The Supreme Court’s decoupling of the word “reasonable” from the rest of the amendment simply erased one half of the constitutional guarantee.  The Fourth Amendment was there but it was there for show and for optional use.  It established no constitutional standard.

The situation was even worse because along with this decoupling the Court lowered the standard of proof from “probable cause” to “reasonable suspicion.”  (See Terry v. Ohio (1968) 392 U.S. 1)  That is another story not germane to the present issue; for, in the context of the Heien case, the question still remains “reasonable suspicion” of what?

Anglo-American jurists think that “reasonableness” is some sort of sacred totem that solves all problems.  Actually it is simply a malleable weasel word.   “Reasonable” simply means: does it sound, sit and feel more or less sensible, common sensical, practical, maybe even a tad logical.  

The sheer gooeyness of the word “reasonable” has troubled the Court which is why (since the advent of Rehnquist) it cobbled up the term objective reasonableness.
 

The notion is that whatever “reasonableness” might be exactly it is to be measured “objectively”  by known, observable existing hard facts of some sort, which other people can see and assess for themselves.  In other words, we are not wandering into the nether world of the Erlkonig (a fantasy goblin said to inhabit German forests).

Ah, but we are!  The phrase “objective reasonableness” is a pleanosm — a redundancy which corrodes if it does not actually destroy the word modified.  What is non-objective or "subjective reasonableness”?  Insanity?  

"But of all these books there were none he liked so well as those of the famous Feliciano de Silva's compositions.  Their lucidity of style and complicated conceits were as pearls in his sight, particularly when in his reading he came upon courtships and cartels, where he often found passages like "the reason of the unreason with which my reason is afflicted so weakens my reason that with reason I murmur at your beauty;"  ... (Don Quixote de La Mancha  Ch. 1. )

Should we really have to worry about the interior “reasons” of a lunatic?  And is the constitutional standard for a search or seizure simply that it not be outright insane?

 

The Reasons of his Unreason

Indeed yes, because what the Supreme Court has now held is that the subjective but erroneous beliefs of the arresting officer are constitutionally reasonable.   In other words, it has twisted probable cause into a subjective belief without objective correlative.

It must be remembered that the single broken tail-light was not “objectively”  a crime in North Carolina,  whether the officer thought so or not. 

The Court’s decision does not destroy the Fourth Amendment — that has already been done — it simply opens the way for complete total police arbitrariness without recourse to law.

-oOo-

The second wretchedness of the Heien decision is actually the poisoned fruit of liberal jurisprudence

For years it was understood that an unconstitutional act was ultra vires.  That is fancy Latin for “beyond the pale” or “in the outer darkness.”

Let me explain.  The Constitution defines a reality in which we wish to exist.  It is an ideal, but it is an ideal which we — by our daily actions — bring into actual being by our observance of it.  The U.S. Constitution is fundamentally an ontological document.

Thus, an act that was unconstitutional was deemed “outside” the pale and, being so, simply did not exist in contemplation of law — that is, in the ideality of the Constitution and its bounden actualization by us.  It followed that if an act was unconstitutional it could not, by that same contemplation, being given any force and effect.  It was a nullity.

The Exculsionary Rule  — disallowing the use at trial of illegally garnered evidence — followed ineluctably.  If a search or seizure contravened the Fourth Amendment its fruits could not be given any effect because to do so would be to accept what was not acceptable. 

Police and prosecutorial mavens on the Court chafed under the logic of the Exclusionary Rule against which they mounted many successive attacks.

To shore up the rule, in Mapp v Ohio (1961)  367 U.S. 643,  the liberals on the Court conjured up a totally ridiculous sociological function to justify the exclusion.  It existed, they said, as a “deterrent” to police misconduct. Excluding illegally seized evidence would help “teach” the police how to behave.

This functionalist rationale was total garbage. It was part of “modern” sociological jurisprudence which rang sweetly in “liberal” ears.   But there was no showing that the police (anymore than criminals) think about the law beforehand.  Nor was there any evidence that an officer lost sleep at night over a lost search. 

Conservatives were quick to parlay this nonsense to their own advantage.  Well then, they said,  if a police officer honestly believed in his mistake there really is no bad behavior to deter.  There is no point in punishing a person who is trying hard to be good.  (Leon v. United States (1984) 468 U.S. 897)

In casting about for pragmatic and sociological-sounding justifications, the liberals had stupidly shifted the focus from whether there were grounds to believe that a person had violated the law to whether the police were trying to break or consciously evade the law. 

Good faith ought to be irrelevant. An act is either constitutional or it is not.  Who cares about good intentions?  It’s the road to hell that matters.

In the decade after Leon, the Court somewhat backed away from the good faith rule, but today they finally took the jump.   Through  a double gibberish Sundae of bad grammar and sociological nonsense and twisted thinking they have mulched the Fourth Amendment into a guarantee against insane and malicious searches and seizures.  While that might sound not so bad, it is in fact terrible because “insane and malicious” is so far in the outer orbit of Pluto that it leaves an immense circuit of allowable arbitrary behavior.

It is even incorrect to say that today’s ruling by the Court renders the Fourth Amendment discretionary.  Here is a standard definition of allowable judicial discretion:

"The term [judicial discretion] implies the absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision." (In re Cortez (1971) 6 Cal.3d 78, 85-86 >)

Thus, the rule follows that a judge who is actually mistaken as to what the law is cannot and does not properly exercise any discretion which can be upheld.

Although this definition of discretion makes wide berth for "judgements within the bounds of reason" those judgements must be informed by true facts and correct legal principles.  If not so informed the definition simply collapses into a meaningless heap.  

It is that heap which the Supreme Court triumphs today under the newly minted doctrine of reasonable wrongness.

Remains of the Fourth

©Woodchip Gazette, 2014


Related:  A Failure of Guardianship
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Noah's Ark and Dogs in Christ

A certain amount of news has been stirred up by the remarks of Pope Francis, made during a general audience, that  “paradise is open to all of God’s creatures”  and that "one day, we will see our animals again in the eternity of Christ.”

Most people interpreted this as an assurance that they will see their pets again in the heavenly beyonder.  The  Vatican Sweep Up Brigade, (also known as the Roman Curia)  immediately sought to clarify that the Pope had not quite meant what he said and that only man was made in God's image.  This in turn engendered a debate over whether dogs have souls.

The theological issue is not whether dogs have souls but rather what kind of souls they have.   It helps to understand how the Church uses words.  Reading the Guardian or the NYT will not help in this regard.

In the Church's lexicon, "soul" is a translation of "psyche"   Since the days of Aristotle, no one in the Hellenic Greek tradition (which includes  Christianity) has doubted that animals have souls.   Of course they do.  It is obvious.  The Church's catechism has always taught that animals have "anima" (souls, in Latin).

The issue is whether their souls are capable of that intuition and reception which we describe as "going to Heaven."   As you might have guessed "going to Heaven" is a term of art.  Some simple souls (of the human sort) interpret these words in a spacio-temporal sense.  Other minds understand the phrase to mean some state of consciousness or some level of being.  

The question (in the Church) concerning dogs is whether they have that kind of soul which is capable of "going to Heaven."   Pope Benedict was correct in saying that Holy Scripture is largely silent on this issue and Jesus himself said nothing on the topic.  But "largely" is not "totally." 

Ecclesiastes expresses unknowing as to whether the souls of dogs (or for that matter of men)  rise up to heaven or go down to earth. (Ecclesiastes 3:21.)  But the story of Noah, clearly implies that -- with man's help -- animals are capable of ascending above the waters onto a high place "on the mountain." 

Floods and turbulent waters are similes for overcoming-passions, impulsive agitation and impermanence -- the darkness of the deep.  The metaphor in the story of Noah is that the skill and spiritual capacity of man has a role in raising up and hence "saving" all of creation.

The story of Noah presents a clarifying progression from the ambiguous use of the word "dominion" (Hebrew: radah) in Genesis.   Both words can be used to signify a subduing domination.  But both words also signify stewardship (in the case of radah) and domestication (in the case of domus).  Indeed, in Latin, Jesus is the dominus and not even the Roman Curia would suggest that He is the oppressor and slayer of mankind.  

So scripture is not entirely silent on the matter.

Moreover, its is absolutely established Catholic doctrine that Scripture is not  the only source of truth or revelation.  "Tradition" -- the common understanding, usage and practice of the whole church -- is also a source of revelation.  (Summa Theologica, Art. I.)

There is no question in my mind that the experience of such a vast number of people -- Christians and not -- is sufficient to establish a traditional understanding that dogs do indeed go to heaven.

 

: <  woof  woof.

©WCG, 2014

Mistaking Trees for Forests

We have watched, with a certain degree of schadenfreude, the rise of the National Front in France.   We have never shared Americans’ ill-informed fetish over fascism and we were pleased to see Marine Le Pen giving the European Establishment a discomforting run for its money.

We recently viewed two speeches of hers — one on May 1st of this year and the other at the closing session of the party congress in December — and were impressed with her skillful demagoguery. 

Marine Le Pen is a good speaker in the way that he was a good speaker.  She weaves her themes together with  a tissue of coherence coloured by sarcasm, humour and indignation.  For close to an hour, I found myself snorting, chuckling and exclaiming mais non! with the rest of the audience.  Her speaking demonstrated the difference between rhetoric and sound-byte. 

Rhetoric is a melange of sons et sens (thank you, Valéry). It is a symphony of notions which is enjoyable in and of itself and it is from this delight that it derives its persuasiveness — unlike logic which persuades in an ineluctible but heavy-handed kind of way.

With the possible exception of Lincoln, Theodore Roosevelt and the opinions of John Marshall, the United States does not have a rhetorical tradition.  It has a culture of homiletics which is similar but which differs from rhetoric in the way that a drum-beat differs from harmony.  Today, political discourse in the United States isn’t even so much a beat as it is a collection of singular bleats which simply punch the mind into a species of assent.

In contrast, Le Pen’s ideology and speeches are a complex of two essential themes: immigration and nationalism.  These are two sides to the same coin of Le Nous!  — which is another way of saying that the elixir of the Front National is essentially fascist.

I do not mean to suggest that Le Pen is a would be dictator.  Certainly not; and fascism, like any other ideology, has various facets including economic regulation and entitlements.  With respect to social entitlements, Le Pen is actually to the left of any American politician. 

But there is a spirit which infuses just about every varietal of fascism, which could be styled the swan song of ethnic nationalism.

It could be said that, ultimately, fascism does not concern itself with political-economy but rather with cultural-economy.  A country’s economy — that is, how it sustains itself materially — is always the fundamental  question.  The synchronization of a given mode of production with juridical and political institutions and with civic rights is what is called a “political economy.” 

It is typically the case that the one reflects the other.  A simple example is the correlation between political free speech and economic free markets.  Indeed, in the United States, the correlation is so intimate that the Supreme Court candidly invokes the concept of “the market place of ideas.”  Such a characterization is the ultimate fetish of the commodity or (in modern parlance) the “monetization of ideology.”

With fascism, the synchronization which occurs is between the economy and ethnicity (by which I mean an ethnicity and its ethos).  The economic interests of the state are seen as correlative with its racio-cultural institutions.  As ideology gets monetized in liberal societies, so money (economic interests) get racialised under fascism.  In either case there is a confusion of mental objects.

In the United States there is a knee-jerk reaction against European ethnic nationalism.  The notion seems to be that since the U.S. is a “nation of immigrants”  Europe ought to be one as well.

Ignorant blather.  What nation isn’t a “country of immigrants?”  Perhaps it is too much to expect Americans to be cognisant of the Doric invasions of Greece or the Mongol invasions of China, but surely they must know about the Volkerwanderung that gave rise to modern Europe.

The difference between the United States and Europe is that the latter has had close to two millenia for the influxes and confluxes of people to coalesce into those linguistic and cultural patterns known as national identity.  And, it bears note that these national identities were shaped by those cluster of geographically contiguous economic interests that became the various nation states of Europe.

The fact is that immigration (ethnicity) and economy are and always have been intimately related.  Tribes and nations wandered out of Africa looking for food and wander into other countries looking for work.    History is Immigration.

What Americans seem to forget is that the United States is a “nation of immigrants” precisely because it thirsted for a labour pool.  “Give me your wretched refuse, yearning to work” was not a policy drawn from the springs of altruism but rather from sucking sounds of economic greed.  American “open” immigration was the correlative to its industrial expansion.

Likewise in post-war Europe, demographically devastated by war, immigration was the necessary correlative to its industrial recapacitation.  Thus, the German economic recovery was literally fueled by immigration from Italy and when Italy herself recovered from Greece and Turkey.

In France the situation was somewhat different.  Its open door to former colonial Africans was the other side of its bargained for desire to keep an economic foothold in its former colonies.  At first the open door included the Franco-Algerian pieds noirs (referring to the black socks the French colonials wore); it later encompassed the peaux noires of French north, west, east and equatorial Africa.

The mistake the fascio-nationalists make is in blaming the immigrants for the economy instead of the economy for causing the immigration.

It is perfectly true that immigrants present a threat to the identity and established homogeneity of European civilization.  It is perfectly legitimate (albeit hazardous) to wish to preserve that modus vivendi which has characterized each and all of the countries in Europe.

But if one wishes to do so, one must correctly identify the true causes of the threat to national identity. In Germany, the threat to its national and cultural identity does not arise in Turkey but in the banker board rooms of Frankfurt.  It is the German economic boom which is the true threat of its “identity.”   Nor does it make sense to blame the European Union for giving rise to that threat, because — all in all — the “European Union” is just another name for the “German Economic Boom.”

Similarly it makes little true sense for Le Pen to blame the German Economic Boom (i.e. the European Union) for France’s immigration problem, because the French immigration problem arises in the board rooms of French extractive industries.

There is no doubt a correlation between immigration and “the present economic situation” in Europe, but immigration is a symptom not a cause.  The nationalist right in Europe is (once again) chasing after symptoms.

To be fair, Le Pen does take on the European Union in and of itself.  Her speeches conjoin the two issues of ethnic immigration and economic union (and to that extent subjects them to confusion) but she is not so stupid as to blame Africans for Brussels. 

What endows Le Pen with her broader appeal is that she takes on mondialisation squarely and face to face.   And, in this, she is absolutely correct.  Globalisation (and the European Union which is but one face of that hydra-headed monster) does present both an economic and cultural threat to France — that is, to both its standard and manner of living.   Of that there can be little doubt.

Were Le Pen to keep that focus and relegate the immigration issue to at least second rank she could avoid the imputation of demagoguery.  But I doubt she can do that because she does not have a true solution to the true problem.

For present purposes, let it be assumed as a given that globalisation presents a threat to the standard and manner of living of the nation states in Europe.  ( And let it be assumed in tandem that this threat will eventually catch up with Germany.)  The fact remains that globalisation is precisely that — an international phenomenon.

The illogic of the fascist programme is that it seeks a national solution to what is fundamentally an international phenomenon.  That approach is like saying that a disease which systemically affects the entire body can be cured by operating only on the leg or, even more stupidly, by severing the leg from the body.

It is here that the true difference between (real) socialism and fascism arises.  Since at least Lenin, socialists have recognized that capitalism is an international phenomenon which can only be countered on the same international level.  Retreating into national forts in hostile territory may provide a temporary refuge but ultimately will not work.

The flaw in the Gotha programme of the pseudo-socialists was that it assumed “gradual” socialism could be brought about within each country while those same nation states — between themselves as such — acted as capitalist competitors.  The inevitable result was either war or globalism, each alternative being driven by the inherent need for economic expansion (aka “economic growth”).

The difference between these two manifestations is that whereas war engendered oppression by one nation over another under globalisation the true nature of capitalism as a class phenomenon is ruthlessly manifest.  The international programme of austerity is not a plan for the domination of one state over another or of one race over another but of the “one percent” over everyone else regardless of race, religion or national origin.

Globalisation is a threat not only to the French way of life, but to life itself. It is an international phenomenon which must be met internationally and countered in all its aspects: environmental, demographic, cultural, political and economic. 

There is no partial solution to this threat.  It cannot be countered by environmental palliatives and offsets.  It cannot be countered by one-child policies or fomenting “family values.”  It cannot be countered by trickle-down palliatives.  Globalisation is an all-ecompassing threat which requires a total rethink about what it means to be human... not simply what it means to be French.

 "Oui, la France!"

In the end, Le Pen is barking up the right tree but, for all her rhetorical “charm,” mistakes the tree for the forest.

©WCG 2104

A Failure of Guardianship - Judicial Acquiescence in Police Brutality

The police beatings and killings which have ostentatiously thrust themselves into national consciousness demonstrate all too well that there is something rotten in America.  But the rot is not racism.   The rot is judicial.

I do not mean to suggest that racism does not perdure in both its personal and institutional manifestations.  But, in the context of police brutality, it is a correlation not a cause.

The press and the powers that be are almost too happy to make a Grand Racial Issue out of the whole thing.  Doing so makes it appear that we here in America at least face our problems squarely face to face, for all out faults...  In fact the real problem is avoided studiously.

In this brief discussion I propose that the police exist to suppress working class discontent and their real purpose is masked by false notions of protecting the public together wrapped in a cultural propaganda of ruff-n-tuff militarism. 

I propose as well that police brutality is not the product of racism but rather of conscious and hypocritical judicial acquiescence.   We begin with,

1.    Grammar

Several decades ago, police started to refer to their fellow citizens as “civilians.”  With their usual imperviousness to English, Americans utterly ignored the implications.  In fact, mind-massaged by entertainment propaganda, such as COPS and like programmes, Americans all but embraced the implications. 

If we (the citizens of the United States) are “civilians” what does that make cops if not a “military” and if the cops are military what does that do to the concept of civil society?

In a famous passage, the Greek historian Thucydides, noted that all “revolutions” begin with a corruption of language.  This is so because, as Aristotle pointed out, it is language which enables humans to make decisions about the the expedient and the inexpedient as well as the  just and the unjust.  If our decision-making tools (language) are bent and blunted we cannot make incisive decisions.

Police are in actual fact civilians just like the rest of society, albeit granted certain licenses and prerogatives suitable to their duties.  The distinction between military and civilians is a differentiation made under the conventional laws of war and was intended to protect civilians from the depredations of armed conflict.  While that distinction is useful in the international context it serves no beneficial purpose under domestic law.  On the contrary, it sets the stage for occupation and oppression by an alien force.  To make it clear:  the force is alien because a priori it has been defined as “other than”. 

By giving currency to a rhetorically false distinction between police and civilians, Americans allowed not only the growth of a “militarized police culture” but the ensuing reality of an occupation army. 


2.    Culture
 
A militarized society is not a civil society.  In modern times, the concept of civil society arose with the emergence of burgertum.  In the pretty picture painted by Thomas Jefferson, it was a society of yeomen and burgesses living side by side in rough equality. 

The picture was always a somewhat Romantic ideal — the Robinsonnade of capitalism — but it realized itself to a remarkable degree even up until the World War of 1939.  Until that time, and despite its massive industrialization, the United States remained a predominantly rural country comprised of small cities and communities.

Indeed, up until the war, the United States could be described as a continent of hamlets; and, within this continental localism, policing remained a local and civilian affair.  The concept of the hue and cry perdured and citizens were deemed responsible for their own security, not as individuals per se but as more or less ad hoc, self-appointed groups of watchmen or vigilantes.  In this sense, self-policing by watchful citizens or by paid volunteers  was a correlative of the Second Amendment. 

The watchman concept began its transformation into a constabulary with the influx of German and Irish immigrants into the East Coast cities in the 1840’s.  This influx disturbed the Calvinistic equilibrium of Anglo-Dutch society and the good burgers undertook measures to morally reform and socially control these needed undesirables.

Summarily stated, in the North, modern policing began as  an effort to keep the working class — or more accurately, the labour pool — under control.   In the South, policing began by way of keeping the slave class in their place on plantations. 

With the demise of the Confederacy, policing of the former slave population remained consigned to vigilantism whereas, in the industrialized North, policing “labour unrest” increasingly became a matter of official vigilantism.

Pinkerton Agents hired by Railroad Co.

 Throughout the last quarter of the 19th century, Industry routinely used Pinkerton guards as hired spies and thugs to undermine and repress labor agitation.  From time to time the Federal Government also resorted to Pinkerton’s services mostly in connection with political subversives.  Although it would be inaccurate to say that the Pinkerton guards evolved into modern urban police forces, it is correct to say that the Pinkerton agency provided much of the paradigm for modern police structure and work.   Modern police forces are essentially government mercenaries whose principal purpose is to keep order on the streets and tabs on disruptive elements.

It is mistaken, in my opinion, to view police brutality as a function of racism and in particular of white on black racism.  Racial prejudice exists throughout American society and certainly conflows into and with police brutality.  But police brutality has never been restricted to any one ethnicity or race.  It is applied with equal opportunity against anyone who is classed as a threat to the political-economic order whether that person is a middle class female college student, a Mexican illegal immigrant, a white trash meth-head or an ex-Marine Occupy Oakland protestor.

Brutality ensues because beating down is the primary function of the police.  They may rescue stranded cats and may help old ladies cross the street, but these services are basically trimmings which help sell the idea of a police force to kindergarden children and the public.  The main purpose of the police — anywhere — is to keep order and the people who most threaten the existing order are those who harbor grievances against it.

It is even incorrect, in my view, to say that blacks suffer a disproportionate amount of police brutality.  In fact they suffer brutality in proportion to their their low social status.  What is really disproportionate is the exclusion of Blacks as a whole from the general social and economic benefits of American society.

As these benefits become increasingly restricted across the board we will see increasing police brutality across the board.  Viewing the issue through the distorting lens of racism misses the fundamental point  both as to Blacks and as to society as a whole. 

3.    Myth

The primary justification trucked out in favor of police forces is that they serve to protect against and prevent crime.  One again, English.  To anyone who understands the plain meaning of words, this is nonsense.

To pro-tect means to raise a shield (tectus, barrier or roof) before something.  To pre-vent means to come (venire) between something beforehand.  Both these words suggest that the police can stop something from happening or can, at least, like an umbrella, keep us from getting wet. 

The only way the police could prevent and protect us from crime is if there were a constable on every corner and at our back at all times.  This indeed is what the national security state aims to achieve, although it does not aim to achieve it for any true benefit to us.

The police cannot prevent or protect us from crime.  They can only mop up the after-effects.  They will never be there to stop you from getting mugged in an alley or from being raped in the frat house or from being punched in the kitchen or from being run over by a drunk.  The times when police are, through total happenstance, present on the scene to prevent a crime falls into the man-bites-dog category.

So-called “police protection” can be justified only by an indirect and spurious rationalisation which argues that  the detection and punishment of crimes protects us from future crimes in that it has a deterrent effect on criminality.  Anyone who believes this bunk ought to be detected and committed to a lunatic asylum.   I shall explain.

It might be assumed, at least for the sake of argument, that just as all criminals flee the scene of a crime, they all make a “flash-calculation” as to the chances of getting caught before committing it. But it does not follow that the eventual arrest, conviction and punishment of one malefactor actually serve to deter another.

Most criminality arises from social and psychological deficits.  These causes exist and exert their impulsive force regardless of the response to that impulse — just the way an itch exists regardless of whether one scratches or not.  The notion that with “depraved and malignant” consciousness criminals resolve upon crime “aforethought” is simply a Calvinist hobby-horse.

To the limited extent that criminality is the result of true calculation beforehand, its mastermind is usually crafty and ruthless enough  both to avoid detection and to corrupt law enforcement.  Such was the case the with mafia in the 30’s and with the drug cartels now. 

In either case, other than scratching, law enforcement is incapable of doing much about either.  Twenty years ago, the U.S. Justice Department announced with much fanfare that it had killed the head of the Medellin Drug Cartel.  But even amidst all the whooping, the Department’s spokesperson warned that this did not mean the drug war was over.  No one in the press thought to ask, “why not?”

In the case of the cartels, because the demand for drugs, like the craving for food, is a constant.  Kill one farmer and another will take his place.  The root cause of the cartels is the demand for drugs and the demand for drugs is itself another name and manifestation for a dysfunctional civil-economy.

In medicine, it is possible to alleviate symptoms without treating the causes.  But policing alleviates only in the way a scratch alleviates.  It may remove one particular criminal for a period of time but that removal does nothing to deter others or to alleviate the conditions which spawned that criminal or the criminal enterprise in the first place.

In fact, just the opposite. A friend of ours, a down home Missouri boy who started his career as a deputy district attorney, has nothing but contempt for the police.  “Cops create crime,” he says. “Just look at the statistics.  As soon as cops arrive in a place, crime figures go up. The more cops, the more crime.”

What our friend meant was not that crime cannot take place without it being noticed but rather that the police make it a point to look for and instigate crime out of boredom and self-justification.

 A vast number of crimes fall into the category of petty, obnoxious behavior of the sort which can just as well be dealt with by being ignored or through some informal response.  It is the constable who is bored out of his mind that creates a crime statistic from the jaywalker who ambles out into an untravelled road. 

Far worse than bored constables are the over-zealous detectives who create crime in order to fight it. Our streets, saloons, club houses and meeting places are infested with undercover agents whose sole purpose is to entice people into committing crimes in order ferret out would be criminals and put these potential troublemakers away.

The paradigm of entrapment ought to give the game away; instead it further suckers Americans into accepting their own rectal animation. 

When one examines the way government justifies police work it will be seen that the justification always involves switching from concrete specifics to a general abstraction; i.e., from talking about apprehending and punishing a particular criminal to ferreting out or deterring “criminality” in general.  

Few would object to tackling the bicycle thief, making him return the bicycle and kicking him in the butt for good measure and (one hopes) to deter him from trying it again.  However, once one begins to talk about deterring others or detecting and preventing some potential criminality we enter into the world of speculative generalities — into what are in fact demonics. 

What has been conjured up — in modern guise — is some sort of float-about deebil  to justify the exercise of government power and the concomitant sacrifice of civil rights.

The argument is made that one less criminal on the streets means one degree less of criminality.  This is rather like saying that by killing one person infected with a common cold we at least decrease the incidence of the common cold by that amount. 

Moralists will retort that people don’t choose to get sick and those who choose to commit evil should have evil returned upon them.  To this I counter that very few people, if any, consciously choose to do something which they think and know is evil.  They make mistaken calculations as to what comprises the good or they suffer from psychological defects which, in one way or another, cripple their social sentiments and restraint.  This was known to Socrates (who said as much) and has been corroborated by neurological investigations.

The treatment of crime, both in general and in specific instances, presents a complex problem but in the hierarchy of likely solutions policing, in either its responsive or proactive aspects, is the least effective solution.  It presents a false hope which is at least as destructive as the (absence of) evil it seeks to abate.

There is, in actual fact, very little crime afoot.  The mudia overflows with harum-scarum of local criminality in order to booh! the public into accepting the dire necessity of police forces.

Think about it.  The United States is a country of 300 plus millions most of whom are crowded together in congested urban areas.  That amounts to a lot of people with a lot of opportunities to do nasty things to one another.  How much crime really takes place?  Very little and that which does takes place in areas afflicted with poverty and social neglect. 

A tremendous amount of crime in the United States revolves around drug usage which is less a sign of evil intent than it is of uselessness and despair.  “Idle hands are the devil's workshop” intones the Calvinist.   Indeed they are.  But “idle hands” are the spawn of unemployment, discrimination, insufficient education.   That part gets omitted.   If the forces of Decency want to fuss about generalities they ought to fuss over the ones that cause things, not the symptoms. 

The police to not prevent crime or even deter it. What they can do is intimidate and repress restless populations and that is their purpose.

4.    Acquiescence

It is unlikely that many people will be persuaded in the uselessness of police forces.  I myself will concede that in mass urban societies which are as alienated as they are crowded, the idea of communal, citizen policing is a Quixotic pipe dream. Modern urban societies need fire departments not volunteer bucket brigades and by the same token they need some trained and dedicated body of men who can at least can respond to accidents, control the confusion and clean up the mess. 

But accepting the premise that watchmen of some sort are needed only raises the well known ensuing question as to who will watch them.  It is here that the United States presents a total failure.   No one guards the guardians.    There are two reasons for this: idolization of the police and a failure of the judiciary.

The first reason has been already touched upon.  Police have been analogized to soldiers and, just as it is regarded as something treasonous to criticize soldiers at war, it is considered ungrateful and subversive to question the commitment, bravery and judgement of police who “daily put their lives on the line in the war against crime.”

  
It is this craven and supine mind-set which has induced Americans into accepting what is in fact a standing army which, by open admission, is “at war” with the rest of society.  It is at war with the rest of society because criminals do not wear uniforms. 

To explain.  One has to identify an opponent in order to fight him, which is why soldiers wear uniforms.  If they did not then, in the  melée of battle, one might end up killing one’s own team member.  But in the “war against crime” — the amorphous enemy exists unseen everywhere. As a result, anyone and everyone could possibly be a criminal or as they say a “potential suspect.”

Once again English.  The term “potential suspect” (like its twins, “potential danger” and “possible threat”) is a pleonasm; i.e.  a destructive redundancy which destroys critical thinking.   A “suspect” is a person who, with some degree of probability, might have committed a crime. A potential suspect is simply a possible possibility.  Not everyone in the world can reasonably be said to be a suspect; but  everyone in the world is, by definition, a  possible suspect.

The reason the police talk that way is because that is the way they in fact think; and they in fact think that way because that is fundamental flaw in the entire concept of policing.

This conceptual flaw — that the police are fighting a war against "crime" in society — generates its own sociological realities, including the militarization and hero-ization of the police which then militates against any suggestion of “civilian” supervision.

The clang and clamour against “civilian review” boards  is a blatant cry for unaccountability in what is assumed to be a state of war with the rest of society.  Police brutality should come as a surprise?

Nevertheless, civilian review boards do exist. They are called “courts” and it is here that the total failure of civil guardianship festers.

Let us go back to basics.  In the heap of misnomers that has become public discourse it is said that the courts exist to “punish crime.”  Not so.

Courts exist as a civilian review board to ascertain (1) if the State has the evidence to prove the asserted necessity of punishing a person by taking away his life, liberty or property and (2) if they have investigated and proved their case in a constitutional manner according to law.  What criminal courts were really designed to judge is the prosecution not the criminal.

Police and prosecutors do not complain about this because the judiciary is not doing its job.  It has rendered itself cravenly subservient to the police.  In all the blather about Ferguson and police brutality no one has focused on the real culprit:  the robed water boy on the bench.

Judicial acquiescence in police misconduct takes place   de facto and de jure.

De facto, judges routinely wink, nod at police lies and misconduct.  They do it so routinely that an impartial anthropologist might conclude that that was their function.   They do it so reliably that police openly joke about  testilying.  They brag about lying under oath and joke about taking courses in “creative report writing.”  This is nothing new; it has been going on for decades.

To be sure, “lying” is seldom simply a toggle between false and true.  It is more typically an artifice of insinuation and impressions.  In the best lie, the subject of a statement is left open and dangling, leaving the hearer to draw the seemingly logical (but false) conclusion himself.

The average juror might fall a sucker but the judges do not.  They know very well what is going on. They simply pretend to be credulous.  Their standing instruction to the police is “give us a tissue we can blow into.”

But if the role of the trial judge is to accept the lies in open court, it is the role of appellate judges to specify what the lie should be.  The general purpose here is to sucker the general public into thinking that there exists a justice system which is fair and impartial, instead of a massive exercise in sanctimonious falsehoods.

One of the reasons this sham and shame is seldom discussed is that to do so it would be necessary to write an immense compendium of law articles.  In a relatively short article only a soupçon can be given.  Let us take Miranda.

The public has been sold on the idea that Miranda advisements exist to protect suspects from being pressured into confessions.  The lunatic idea is that the advisement “restores” a balanced playing field. 

Why “lunactic”?  Because, as the Court in the Miranda case acknowledged, being taken into custody is — in its own words — “inherently coercive”.   This is logical.  You are not free if you are in custody; and, by the same token, if you are not free you cannot make a free and voluntary statement.  Duh.

But if that is the case, how does being advised by the burly brute who hovers you that you are free not to speak change anything?  It doesn’t.  One might as well tell the man on the rack: “You have a right not to scream.”  The empty interrogation room might not be as physically painful as the rack but since when is fear not an equal terror?  Centuries ago when the Court still had a scintilla of honesty it recognized that fear and shame could just as easily turn a man into the “deluded instrument of his own undoing.”

The real purpose of the Miranda decision was to provide some fair sounding blather which would "sanctify" the use of a confession in court when by all indications and analyses custodial confessions could never be deemed to be made freely and voluntarily. 

The case is even worse, because once a Miranda warning has been given — no matter how quickly run through or mumbled — then let the games begin!  The police are free to use whatever device, scheme, lie, trick, they want (short of leaving physical marks) in order to “elicit” a confession.  And the police take courses in this too.

So given that Miranda is window dressing for the public and a mere preliminary to open psychological warfare against the “subject,” how does this appellate concoction operate at the trial court level?

    Q:    Officer, did you Mirandize the defendant?
    A:    I believe I did...
    Q:    And after you advised him of his rights did he make a statement
    A:    Yes.
    Q:    And what was that?
    A:    May I refer to my notes?
    Q:    Yes.
    A:    He admitted to entering the store in order to steal the six pack of beer which he then placed in his vehicle before heading to the river. (I.e., he admitted each and every legal element of a burglary-theft, just like that!)

It will be noted that the testilying officer never said that he did advise the defendant of his Miranda rights.  He said he believed he did.  When officers say such smart-alecky things they know full well what they are not actually saying and what you will think they said.   They also know that the judge who will have to rule on the issue will understand the lie as it is intended and then pretend not to have noticed.  

Another example  of judicial acquiescence is the law of  entrapment.  The Supreme Court has upheld entrapment on the stated theory that merely “affording an opportunity” for those who are “predisposed” to commit crimes.   You know, like putting cheese out for the mouse.  The rationale is scrambled brains on a plate.

There is no need for the police to go about affording opportunities to commit crime because the whole of society — every last inch of it — is an already existing opportunity to commit crime.  The bicycle left leaning on the post, the woman walking down an alley, the intersection where supposedly no one is looking ...   ordinary life abounds in opportunities for those predisposed to commit crime.  The police do not need to do a damn thing.

What entrapment allows is for the police to instigate crime by suggesting and enabling its commission to some pre-selected target.  By practical necessity the enabling entails the first steps of the crime itself.  To avoid looking at what the police have done, the High Court switched the focus onto the subjective predisposition of the victim of the entrapment and the whole game then got reduced to a species of slander, the end result of which is that there was no entrapment because the defendant was a scum-bag anyways.
 
The law of entrapment is a heaving, stinking Calvinist mind puke.

In fact the entirety of criminal law and constitutional law, in its criminal aspect, is a malodorous pile of rot.  The temple of justice is a white-washed sepulchre and its judicial litanies a construct of sophistical excuses aimed at covering up police villany, prosecutorial malice and unjust judgements.  Ferguson and the daily roll of police beatings and killings are the inevitable product of a justice system which is rotten through and through.

Both the police and the justice system which aids and abets them are not designed to prevent crime or vindicate wrongdoing.  They exist as constructs of oppression aimed at keeping the working classes in line.  Part of the process is to keep them intimidated and distracted by daily beatings and --- just as much -- by daily prosecutions for stupid shit which stack up and boil down to nothing more than a form of judicial battery.

As usual, well meaning Americans (themselves inversely obsessed by race) allow themselves to be distracted by the bete noire of racism.   No one can doubt that the police are racist, sexist, as well as xeno- and homo- phobic. But those are accidents to the issue. 

The fundamental issue is that the police are tools of class repression.  Their existence has been rationalised with a  tissue of myths coupled to a culture of militarized machismo.  Their misconduct, brutality and routine violation of the Constitution is aided and abetted by a craven and prostituted judiciary.

Police brutality is the bastard spawn of judicially allowed impunity.

©Woodchip Gazette, 2014

Update:

As if the Supreme Sepulchre were eager to prove my point, it has this past week decided Heien v. North Carolina, in which a majority of eight justices held that it was constitutionally permissible for a cop to be totally wrong about the (non-existent) legal basis for your detention.   In other words, even if you in fact did nothing wrong, it is just fine and dandy if the cop thinks you did and on that basis tore your car  apart in a so-called "safety search."

Beware.  If cops can be "reasonably wrong" in detaining you and searching your car they can be just as reasonably wrong in blowing your head off.   The Supreme Court has just declared an open season against "civilians."

We vomit.