Of Human Cruelty

"What a piece of work is man" says Shakespeare's Hamlet, in an extended fit of irony.  One can't help but agree...with the irony.

The image above is, of course, taken from The Twilight Zone of happy memory.  It occurs to me that American television hasn't done any better than this series, especially when it tries to imitate it.  The concept has been used since then often enough, but it's too familiar now to have any real effect.

Nonetheless, there's reason enough to believe that we earth creatures should be locked away for our own safety and that of others inhabiting this planet, and in fact for the safety of the planet itself.  We're a singularly destructive species and are far more destructive than any other animal.  Some of us are locked away, of course.  We do that to our own kind.  We do a great deal to our own kind.  Being so minded, we don't hesitate to inflict pain and confinement on the other miserable occupants of this world.

What distinguishes us from the other animals which kill, maim and destroy here is not merely our greater ability to do so, however.  It's the fact that unlike them, when we do harm we're not driven by instinct or hunger or the effort to survive in most cases.  We want to inflict harm and intentionally destroy others; we take pleasure in it or are indifferent to it.  We are, in a word, cruel.

Although Stoics have popularly been thought callous and indifferent, it should be clear that a true Stoic can't be cruel.  In order to be cruel, a person must be disturbed by or desire things outside/his her control.  In fact, just about every negative feeling or action has its basis in our attachment to such things.  We hate others for what they are or do or think or say, although they are not within our control.  We desire or fear things not in out control, and therefore steal or seek to possess them as most efficiently we can or avoid or destroy them.  We require that others do what we want them to do, despite the fact they're not in our control.  None of this would take place if we sought only to do the best we can with what is in our control.

We can concern ourselves unduly with things outside our control without being cruel, however.  Cruelty requires something more of us.  Not only do we want to control what isn't in our control, we want to do so in a way which we know will inflict unnecessary harm or pain because it pleases us or because we don't care that unnecessary harm and pain will occur as a result of our action.  The cruel person isn't just misguided.  The cruel person is evil.

Cruelty has always been a human trait, but there are times when we are, in general, more cruel than in others.  The Nazis are thought to have been impressively cruel, for example.  Were they cruel merely because they were evil?  It may be they were convinced they were part of a master race and that the elimination of undesirables was for the greater good, or that certain peoples were inherently evil.  Sometimes, the religious have acted cruelly.  People of other religions or having no religion were burned and tortured for that reason by those who thought it necessary or appropriate.  Does this mean they were evil?  Or is it better to say they did evil things?  Are people cruel if they believe the suffering of others is necessary in some peculiar sense?

Such fanaticism may be a cause of indifference to suffering imposed, but it doesn't follow that the suffering is pleasurable to those who impose it.  What would seem needed in addition for a person to be cruel is the knowledge that the suffering they cause others is not necessary.  The cruel person causes suffering for no reason but his/her own pleasure, or merely for the sake of causing others to suffer.

Is the apparent policy of the current government of our Glorious Republic to separate parents seeking to enter God's favorite county illegally from their children cruel?  It plainly isn't necessary to prevent them from doing so; there are other means to do that--the Great Wall of the U.S. has yet to be built, but it is presumably an option.   The separation obviously causes suffering.  The law already provides penalties.  This therefore is something more than imposing the penalties set out in the law for an illegal act.  This is a punishment we've decided to impose in addition to those penalties. 

These are questions which should be asked, issues which should be considered, by an honorable people.

Ex Uno Plures (Out of One, Many)

 

Perhaps it's in the nature of humanity's constructions to dissolve over time, as we do ourselves.  Perhaps the proud early slogan of our nation, E Pluribus Unum--Out of Many, One--is antiquated, and is to be replaced in practice at least with its opposite,  Ex Uno Plures.

The United States is exceptional in that it is, more than any other nation I can think of, a construction, an artifice created by a group of men.  Not over time as may be the case with any other nation, but in a few years by a concerted effort of certain more or less like minded individuals with relatively similar interests and desires.  The fundamental structure of that nation was borrowed from others in certain respects (the Roman Republic seems to have been an inspiration), but the form of its government was new, and committed to writing.

It may be such a creation can't stand the test of time.  It nearly fell apart, after all, in part because it was understood by those interested in its dissolution to be a human creation rather than the slow work of years in which custom was molded and people with it to form a distinct identity.  As a human creation voluntarily joined in by the former colonies, the Union could be dissolved.  Or so thought the Confederates.

I think that this perspective may arise once more.  But if the nation does dissolve it may be due, in a perverse way, to a desire for a sameness which no longer exists.  A desire for a sameness of a certain kind, which those who prefer it wish to impose, by exclusion and intolerance.

The sameness sought would seem to be a kind of construction itself, the result of a selection of certain characteristics or traits it's thought once abided throughout the land, and may have obtained in portions of it in the past.  Now it seems a sameness which has taken on the quality of myth.  We all watched too many TV series glorifying that 19th century migrant worker known as the cowboy, perhaps.  Or, perhaps we watched too many of the sitcoms popular in the 1950s.  Many of us have a kind of nostalgia for life as it was lived during the Eisenhower administration.  We pride ourselves in being stout individualists, but the individuals we think we are or wish to be are homogenous.

The so-called Melting Pot America was once said to be may never have existed, in fact.  Even the Irish, Chinese, Italians, Greeks, and various Eastern Europeans have not been accepted fully, and are always suspect in one way or another here in God's favorite country. 

Regardless, what we see taking place is an association of groups or tribes.  Like calls to like; like seeks like in times of stress or trouble.  Like fears and hates unlike in those times. 

As a result, there is a reaction against multiculturalism and diversity taking place here, and also in Europe.  One can sympathize with the desire of a group of people to maintain their own customs and culture and to maintain their own institutions.  One can understand that this desire may result in the resentment of immigrants who seek to maintain their own culture and customs although they leave their own countries to live in others for various reasons.  There is an argument to be made that immigrants should not expect the country they seek to be the country they left, and that they should act accordingly.

But there are too many of us on this planet already, and the simple fact is that the population of this nation and others will change, is changing.  That change can't be stopped for more than a short time.  We can't be what we were, and certainly can't be what it seems our current president and his supporters want us to be. So, it may be we'll no longer want to be one out of many.  But that will mean merely that we won't be one nation, and will be a fragmented one instead, if we are any kind of nation at all. 

Ecclesiastes 1:9

Every now and then (in fact, more now than then) I think wistfully of what great journalists, essayists and satirists would write of our times. Specifically, I wonder what someone like Mencken, or Bierce or Juvenal would have to say, if only they were alive to bear witness to our folly. In that mood I revisit what I've read by them, and sometimes find what I haven't read before (to discover something I haven't read is particularly delightful).

I've been reading Mencken mostly. The Sage of Baltimore had an incisive mind, his writing is clear, erudite and witty, and he was more often right than wrong, though he had his prejudices and didn't hesitate to voice them. What struck me most as I read was that seemingly very little has changed since his death. Granted, he didn't die all that long ago, but it seems long ago and it seems we've come to think of most everything which happened more than a decade into the past as being ancient. Such are the expectations and inclinations of those of the age of Twitter.

The chapter (if I may call it such) of the Bible called "Ecclesiastes" makes several neat little observations about life which seem commonplace now, but perhaps were not so then. One might not think the members of a Bronze Age tribe would make them, but they were made nonetheless. Some have a Stoic tinge to them. What's referred to in the title to this post is the one which is paraphrased as "there is nothing new under the sun." Let's give the ancient author his due and quote him here: "The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun." (King James' version).


This saying came to mind while I was reading an article Mencken wrote in 1924 regarding immigration. The government was taking steps to stem the tide of immigrants from southern and eastern Europe, then. That's more or less where my ancestors come from, as I'm largely of Italian and Polish descent My ancestors would not have been affected by the law, as they were in the first wave of immigration from those parts, so to speak; the late 19th century. That assumes the law wouldn't have retroactive application, of course, but I think that would be pushing anti-immigration sentiment too hard; making it too obviously contrary to the Constitution.

I think the rhetoric used to justify such a law at that time would have been similar to the rhetoric we hear now about Mexican immigrants. Mencken in his article doesn't dwell on the Italians, especially southern Italians and Sicilians, being undesirable in the many ways they were thought to be undesirable in 1924. Instead, the article sets forth an argument that if the immigration of such people is prohibited, then the Americans Mencken called "Anglo-Saxon" would be forced to do the manual or factory labor being done by the immigrants. This made no sense to Mencken, because the lower kind of Anglo-Saxon not only wanted to avoid such work, but were no longer capable of doing such work well or diligently. The higher kind of Anglo-Saxon, of course, would not even consider doing such work in any situation, according to Mencken. Mencken, as a devotee of Nietzsche, was inclined to speak of higher and lower kinds of people.

The claim that immigrants are needed to do the work we don't want to do, but which nevertheless should be done, is an argument we hear today as well. So it isn't new, and nor is the claim that immigrants from particular areas or nations are undesirable, which is to say unlike Americans who are descendants of northern Europe or England. It is only new to the extent it addresses new people.

Though we're often called a nation of immigrants, America has always been unkind to immigrants. Irish, Chinese, Italian throughout the 19th and even into the 20th century; now Mexican and Muslim. The Irish, Chinese and Italian have been accepted for the most part; perhaps more properly assimilated. The prejudice against them reduced over time. Perhaps that will happen as well with the newly undesirable, and they will have their turn at objecting to immigrants in the future. It seems to be the American way.

It's claimed by some that restricting the immigration of Muslims is a special case, as it impacts our national and personal security. The same was also said of others, though. Italians promoted crime and even organized it. Eastern Europeans were communists. Italians could be anarchists as well, of course, like Sacco and Vanzetti.

Mencken wrote, wisely I think, that people don't really want liberty. Instead, what they want is security. What was truly said is that which shall be truly said, to paraphrase Ecclesiastes. We seem most willing to sacrifice our liberty--and those of others, of course--in the hope that sacrifice will provide us with security. Immigrants like many other things make us feel insecure.

Mencken thought democracy to be a destructive form of government given his contempt for the masses who through it would run the show, and remarked that its result in America would be that someday the common people would achieve their dream of electing a complete moron to the presidency. It may be that dream has come true at last, and that it has come in part due to our desire for security.

I suspect Mencken and other great cynics and critics of the past would therefore be inclined to write much like they did in the past if they lived now. There seems indeed to be nothing new under the sun at least as far as human conduct and misconduct is concerned, and so those who comment on human conduct are fated to make comments already made. But they would make them in with much more skill and wit than can be found these days, as skill and wit in communication are actively discouraged, the act of communicating instantly being of greatest importance in these unhappy times when talk is quick and cheap.

Nothing New under the Sun: Dewey's Popular Essays

I'm reading Characters and Events, a collection of John Dewey's articles written for magazines such as The New Republic, and am struck by two things.  First, he writes much better in these "popular" essays than he does in his philosophical works, which I must admit is a relief--and also interesting in its own right.  Second, that much of what he wrote many decades ago is sadly familiar.  Very sadly, in fact.

He writes, for example, of the influence of fundamentalism in American society, and how the conflict of religion and science in the United States is a subject of wonder and amusement in Europe.  In Dewey's time, of course, the greatest conflict was over Darwin's theory of evolution.

He writes also of concerns over the vast number of immigrants entering the nation through Ellis Island, and how they are to be assimilated into American society.  Apparently, General Woods and others were proposing that this be achieved through a system of universal conscription.  All would be assimilated through military service, though there was, at the time, no war to be fought.  A war would be provided soon enough, of course.  Dewey was concerned about American society becoming militarized along the European model, and not unsurprisingly felt that if assimilation was to be achieved, or imposed, through the federal government it would be better achieved through a system of national education.

We haven't come very far, it seems.  We have the same concerns now, and are debating the same debates.  So little have we learned, apparently, that the players may as well be the same.  We may as well have William Jennings Bryan thundering away portentously.  As for General Woods, I haven't heard much about universal conscription as the cure for the "disease" of immigration, but perhaps that is because our military is already rather busy at this time; busy enough not to take on the additional burden of assimilation.

Our system of national education hasn't done much to to alleviate such concerns.  Dewey might be inclined to blame this on the fact that our system remains in many respects localized.  Our school districts are locally controlled, with school boards being selected through local elections.  So we have some boards in some states insisting that schools teach what is deemed appropriate by local electors, and certain local electors, or those actually interested in voting for members of school boards in some cases, continue to have doubts as their ancestors had doubts regarding evolution, and perhaps immigrants as well.

What accounts for this?  Why is it that we are, apparently, incapable of learning, or perhaps it would be more accurate to say inclined to conduct ourselves as we have always conducted ourselves regardless of what is learned?

We may simply be creatures of habit and routine so entirely that we will not think intelligently unless compelled to do so.  We feel compelled to do so when we perceive there will be an immediate benefit to us, or when the failure to do so will result in a direct harm.  When we are relatively content, we prefer not to think at all, thinking being difficult.

There is a problem, though, and that is that thinking is so difficult we resort to it only when other options have been exhausted.  If we are seriously discontent, we may prefer to act without thinking if it seems that by acting we will achieve what might be achieved by thinking.

If we are creatures of habit, one wonders if it would be possible to develop a habit of thinking.  I think this is one of the things Dewey sought to propose in his works on education.  But thinking often demonstrates that habits are bad, and perhaps we would rather maintain those habits we have than develop new ones.

Preempting Arizona

I find it reassuring to learn that the federal government has enough lawyers worth their salt sufficient to draft a complaint that attacks Arizona's immigration law on what seems to be a legitimate legal basis (which is not to say a valid one).  The complaint seems a bit chatty to me as complaints go, and there is more in the way of unnecessary editorial comment in it than I'm used to, but it contains no blatant claims of racism or unutterable evil on the part of this state, and this is refreshing in these loudly self-righteous times.  It may even be that I find it unduly prolix mostly because I'm an older lawyer.  The complaints I read drafted by younger colleagues are often noisy, exclamatory things, and perhaps that's the way they're being taught.  I'm used to notice pleading, and hold I think the well-grounded belief that no judge is going to be swayed by a complaint of all things, and so rhetorical flourishes at that stage of pleading is silly chest-pounding.

Federal preemption and the Supremacy Clause won't set hearts racing or flags and placards waiving, and perhaps worse yet for some don't create much opportunity for self-congratulatory posturing, but they raise serious issues worthy of judicial consideration.  Is immigration law a peculiarly federal concern?  Would the intrusion of the states in this area of law cause chaos, a multiplicity of possibly inconsistent immigration systems, confusion in law enforcement and among those sincerely interested in obtaining citizenship, jurisdictional issues?  These are good legal questions.

A complicating factor here may be the fact that the Arizona law seems to incorporate the federal law by reference.  This would seem to mitigate claims that confusion results in this particular case.  Also interesting will be the extent to which the federal government's apparent failure to enforce federal law on this issue will be a factor.  What can be said to be preempted by federal law where federal law is not applied, for any reason?

One wonders if this is ultimately a win-win situation for Arizona and those that sympathize with its stance.  It may be that even if its law is struck down (and the likelihood is that this won't culminate at the District Court level) it will have compelled the enforcement of the federal law, or perhaps reforms in the law.  One thing is certain, I think--this controversy is in the courts now, and so we may at least hear less from the assorted pundits, politicians and preachers of the left and right as a result.  And that can only be considered a good thing.

"Reasonable" and the Law: Some Thoughts on Arizona's Immigration Bill

Any practicing lawyer (I make this qualification for a reason, to be addressed) knows well that the word "reasonable" is often used in the law, as a standard.  There's that "reasonable person" one always hears of, for example, in civil negligence cases.  "Reasonably acceptable" is a phrase one encounters in contracts.  Variants of "reasonable" appear often as well.  In contracts, consent to a particular act frequently is not to be "unreasonably withheld."  And, of course, there is constitutional prohibition of "unreasonable search and seizure."

Lawyers and courts have been dealing with "reasonable" and, for that matter, "unreasonable" as standards or requirements for quite some time.  There is a huge amount of case law dealing with what is or is not "reasonable" in given circumstances.  Sometimes, there is statutory language specifiying what is not reasonable which can be referred to by those enforcing and interpreting law.

I've been a practicing lawyer for what I must reluctantly admit to be a long time.  This makes it rather hard for me to understand what I believe to be the very unreasonable response of some to Arizona's recently adopted immigration law.  Some of the declaiming going on strikes me as almost hysterical.  Even my favorite editorial catoonist, Pat Oliphant, is indulging in comparison with the Nazis.

I think that all must admit that there is such a thing as illegal immigration.  There's even a federal law, mirable dictu. Also, there seems to be considerable evidence that there are a large number of illegal immigrants in our glorious republic.

The concern of the bill's opponents appears to arise from the fact that the law allows persons to be questioned or investigated if there is a "reasonable suspicion" that the law is being violated.  In fact, "reasonable suspicion" is already a basis on which a person may be stopped and questioned under the law.  Law enforcement may, under well established law, do all sorts of additional things once "probable cause" exists, and even "probable cause" that a law is being violated is something considerably different from absolute certainty that a law is being violated.  One has to wonder why an inference is being made that "reasonable suspicion" will, in practice, mean something dramatically different from what it already means.  As the law apparently expressly states that a person is not to be stopped, questioned or investigated based solely on his race or appearance (which, of course, tells us something about what is not "reasonable suspicion") one is even more inclined to wonder why such an inference is apparently being made.  If there is no such inference being made, one has to wonder just what the concern may be.

Concerns regarding the misuse of law by law enforcement are, to me, perfectly understandable and significant, and all should be done to prevent this kind of misconduct.  However, the exercise of judgment always takes place whenever a law is being enforced.  Sometimes, it's not properly exercised.  Sometimes, laws are misused.  Sometimes, law enforcement acts improperly.  But, there doesn't seem to be any credible reason, at this time, to think this particular law difers from others by allowing or encouraging the unreasonable exercise of judgment, misuse or misconduct.

So, miserable cynic that I am, I tend to think that the opponents of this Arizona law are not primarily motivated by any legitimate legal concerns.  If that's the case, I think they would be more honest--and honorable--if they simply took the position that immigration should not be illegal, or that the law which already exists and has existed for some time making immigration illegal should be significantly altered.

Many of our elected officials are lawyers.  I tend to think lawyers make bad politicians.  We're not good at representing, at the same time, the interests of large numbers of people.  Our training is in the representation of particular individuals or entities, as to particular disputes.  Generally, were not supposed to represent more than one party in a dispute, because of the obvious potential for conflict of interest.  That's a topic for a different day.

Many of our elected officials are lawyers who have not practiced law for any significant period of time, however.  They've gotten their law degree, but have done other things.  They've taught, perhaps, or became involved in politics just after got their degree, or worked in some non-legal capacity.  It's possible, I suppose, that a lawyer who has never practiced law or did so in some limited capacity is not aware of the fact that the law deals with such concepts as "reasonable suspicion" on a fairly regular basis.  So, I'm willing to cut those lawyers who may be conjuring visions of Nazis in these circumstances, as well as those opponents of this law who are not lawyers, some slack.  Not much, though.  If there are legitimate bases on which to oppose this law, I don't think any in politics or the media have raised them yet.