Two stories about criminal law

• The first deals with the old question, "why do we need criminal defense attorneys?"  And the answer is, in part, because there are enough prosecuting attorneys out there who are willing to do stuff discussed by Scott Turow in this op-ed in the New York Times.  

• The second story examines an apparent dichotomy.  The economy is in the tank but crime doesn't seem to be on the rise, and James Q. Wilson is puzzled about that.  He offers some ideas about why the crime rate hasn't spiked, and I think there is a lot of merit to his speculation.  I know that during my recent trip to San Francisco, I felt safer on the streets there than I did the last time I visited (in 1993), in large part because there were police everywhere.  

We suffer the Roman curse: we can stand neither our vices nor their cures

That's my take on Judge Richard Posner's analysis of our nation's current economic predicament:  Let's Be Honest:  We're In a Depression, Not a Recession, And There's No End In Sight.  As Posner (one of the pioneers in the field of law & economics) summarizes our quandry:

[A]nything that takes money out of the economy, such as reducing federal spending or increasing federal taxes, will exacerbate the current depression. Consumers will have less money to spend, and this will discourage employers from hiring.

But moves such as reducing federal spending and/or raising taxes are necessary to deal with the massive debt the federal government is carrying. That's the catch-22 we are facing. Posner thinks that the catch-22 can be avoided if changes in our spending and taxing regimes are phased in slowly, but is concerned that we don't have enough time for a slow and steady recalibration of taxation and entitlement spending:

[I]t’s not clear that we have enough years. Suppose that the economy recovers by the end of 2012, and in 2013 and subsequent years grows at a 4 percent annual rate. (The long-term growth rate is about 3 percent, but growth is usually more rapid when it starts from a low level.) The public debt won’t continue to grow at 17 or 18 percent a year, but suppose it grows at 7 percent a year. Then the already very large federal deficit will continue to grow, and indeed, to compound: At a 7 percent annual growth rate, our public debt in 2012, estimated at $12.4 trillion, will grow by 40 percent in five years if none of the reforms designed to limit that growth are implemented before the end of that period. Yet if they are implemented while the economy is still struggling, the result may actually be to increase the deficit by driving tax revenues down (because incomes will be depressed) despite the elimination of loopholes, and by increasing transfer payments to the unemployed and others hard hit by the economic crisis.

Read it all.  We are in a bind.

Nostalgia is not a substitute for tradition

I ran across this post on the masthead of the Pittsford Perennialist and thought I would share it with everyone.  I liked it so much I have added it to the sidebar on the left-hand side of this blog.  One can never read too much Christopher Lasch (1932-1994):

"A society that has made "nostalgia" a marketable commodity on the cultural exchange quickly repudiates the suggestion that life in the past was in any important way better than life today."

Related item: A Conservative Blog for Peace has a reflection on nostalgia posted.Well worth a read.

Alexander Hamilton, William Blackstone and the nature of government

One of the often overlooked documents leading up to the American Revolution is The Farmer Refuted, written in 1775 by a very young Alexander Hamilton.  One of a number of critical works that set the stage for American independence, Hamilton's treatise set forth in very clear terms much of the intellectual foundation to justify the colonists' move to defend their rights against incursions by the British government.  While not an explicit call for independence, A Farmer Refuted is an excellent statement of the principles that would eventually lead the Americans to declare their separation from the British Empire.

The core of Hamilton's argument in The Farmer Refuted centers around divinely-given natural law as the core of human obligation to one another.  This natural law, since it comes from God, is not dependent on human government or human institutions for its validity, but instead stands as judge over human laws and customs.  Hamilton cites as his authority for this point not the Bible or any of the classical or scholastic writers who discuss natural law, but rather William Blackstone, the great compiler of the principles of English law.  He does this, of course, to ground his point in the firm soil of the English Constitution -- to demonstrate that his point is not some radical notion but rather is part of the traditional approach to law and morality that under girded the British Empire itself.  The natural law defends the rights of Americans as much as the rights of Englishmen because, as Hamilton quotes Blackstone, "It is binding over all the globe, in all countries, and at all times."

After his citation of Blackstone, young Hamilton then began to build an argument about the nature of government.  Since God creates human beings and sustained them, the rights of human beings are dependent upon God's natural law.  Understood by reason, which is itself a gift of the Creator, natural law allows human beings to "discern and pursue such things as were consistent with [their] duty and interest."  Critically, natural law gives to each person "an inviolable right to personal liberty and personal safety."  In the absence of government, no person has the right "to deprive another of his life, limbs, property, or liberty," or to command another person under obedience.  The one exception to this latter point, in Hamilton's view, regards the natural ties of family.

Striking directly at the British claim to be able to govern by right other than consent, Hamilton then applies these principles to the notion of government's origin.  "[T]he origin of all civil government, justly established," Hamilton proclaims, "must be a voluntary compact between the rulers and the ruled."  In such a compact, the power of government is limited in order to secure the "absolute rights" of the people.  No pedigree can substitute for the consent of the governed, "what original title can any man, or set of men, have to govern others, except for their own consent?"  To assume such power, "to usurp domination," is to break God's natural law, and thus renders such an assumption invalid.  The people have, in Hamilton's words, "no obligation to obedience" in such a situation.

Hamilton concludes this portion of his argument with another quote from Blackstone, book-ending, as it were, his position on the necessity of consent of the governed with the authority of the great expositor of the English legal system.

The principal aim of society is to protect individuals in the enjoyment of those absolute rights which were vested in them by the immutable laws of nature, but which could not be preserved in peace without that mutual assistance and intercourse which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals.

With that, Hamilton expressed in detail the fundamental principles about God, natural law and government by consent that would later be used by Jefferson at the beginning of the Declaration of Independence.  While Jefferson's formulation of those principles is well-known, Hamilton's earlier, more precise and grounded formulation of those same principles deserves greater appreciation by Americans and all those concerned with human liberty & limited government.

Did Butch Cassidy live out his days in Spokane?

A used book dealer claims to have uncovered manuscript evidence that proves just that -- that the outlaw made famous by the 1969 film Butch Cassidy and the Sundance Kid didn't die in a hail of Bolivian bullets, but instead somehow escaped to live under yet another assumed name the fair city of Spokane, Washington. Color me skeptical, although it wouldn't surprise if it were true.