Noble Injustice

Something strange happened along the road to Utopia: we ditched the supremacy of individual rights in favor of "the greatest good for the greatest number."

One manifestation of this was affirmative action.  In Regents of the University of California v. Bakke (1978), Justice Powell wrote:

There is a measure of inequity in forcing innocent persons ... to bear the burdens of redressing grievances not of their making.

But a sly concept was tucked into the opinion: an individual's rights might still be curtailed if this were done to serve a compelling government interest.

What evolved next was seen in Grutter v. Bollinger (2003).  Sandra Day O'Connor declared that "diversity" was just such a compelling interest, and therefore race could indeed be considered one factor (among many) in determining school admissions.

But not to worry:

We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

Yet how could we (or the justices) have expected this to be the stopping point?  Once the signpost indicated the direction to take, others were bound to follow.

In 2010, the Fourth Circuit Court of Appeals (Rowe Co. v. Tippett) upheld a North Carolina law which required weighted hiring in favor of blacks.  Judge James Beaty wrote in a concurring opinion that the law "serves the highest interest of the State in attempting to remedy this past discrimination and is fully consistent with the promise and purpose of the Fourteenth Amendment."

The Fourteenth Amendment was now stretched from guaranteeing non-discrimination into precisely the reverse.  Law was malleable in order to reach "the promise."  Wrote Beaty:

I agree wholeheartedly with the conclusion that the [law] ... is constitutional on its face and as applied to African Americans and Native Americans.

However, the judge continued:

I would note that the majority opinion has held that the Program is unconstitutional as applied to Hispanic Americans and Asian Americans.

Likewise, the rights of "nonminority women" came up short.

Justice Harlan had once been proud to declare that "[t]here is no caste here. ... In respect of civil rights, all citizens are equal before the law."  Yet the courts have spent the last thirty years trying to convince us that Justice Harlan was wrong, for the sake of a better world.

As if this were not bad enough, the same triumphalist, kingdom-of-the-perfect philosophy has spread even into the realm of criminal law: if there is a compelling government interest, it may be legal -- even moral -- to convict the innocent.

To cite just two recent examples (many more could be furnished) :

In 2007 in Georgetown -- near enough to the heart of the Republic that one could have hoped for a clearer concept of justice there than elsewhere -- activists were demanding that police stop a rash of assaults against gays.  Police finally thought they had found one possible suspect -- a university student -- and they arrested him in class during an exam.  He was handcuffed and taken to jail late on a Friday afternoon -- meaning he would have to remain locked up through the weekend.  He was offered immediate release if he would sign an admission of guilt.  He refused; allegedly, he had a video surveillance tape proving he had been across town at the time of the incident of which he was accused.

But the prosecutors couldn't release him without going back to square one.  The situation was further complicated when it developed that he was the son of a former Bush administration official.  Police then might not only be confirmed as indolent in finding the perpetrators of anti-gay violence; they could also be accused of giving preferential treatment to the children of the elite.  So the prosecutors settled on a functional solution: they stuck with the charges, and for the next nine months, the student faced the rigors of the justice system -- endlessly postponed hearings and appearances -- while his name was dragged through the mud.  Finally -- after public interest had dissipated -- the charges were dropped, and the prosecutors stated they were unable to place the suspect at the scene of the incident -- an adroit way of saying he was innocent without actually saying so.

But the greater good was served, the police were redeemed in the eyes of their critics, and social peace was preserved.  How could one individual's reputation be too much to be sacrificed to achieve that goal?

Similarly, in 2006, the nation was convulsed by charges of an interracial gang-rape in Durham.  A defendant in that case, Collin Finnerty, was concurrently accused of participating in a street scuffle in Georgetown.

Some of the facts of Finnerty's circumstances were irrelevant to the state.  Namely, Finnerty's actual transgression consisted of nothing more than attempting to act as a peacemaker by stepping between two quarrelling persons.  Indeed, for his pains, he was yanked away and then struck from behind and knocked to the ground.  Subsequently, he got up and yelled some angry epithets at his assailant -- but didn't strike him.

The public -- alert to the symbolism of a rich white prep school athlete accused of abusing a poor working woman of color -- waxed indignant.  People demanded retributive "justice" -- which the U.S. attorney, acutely attuned to the people's moods, compliantly provided.  A team of seventeen federal attorneys and staff prosecuted.  The judge harangued Finnerty's lawyer from the bench.  Prosecution witnesses changed their testimony; police officers remembered new facts which did not appear in their notes; the chief defense witness was not allowed to testify; and the defendant was found guilty (as required).

A contented braying emerged from the press mob.  Finnerty was thereafter portrayed as a monster of dissoluteness and wanton profligacy (as befitted any white male athlete).

What prosecutor in good conscience (as such things go nowadays) could have sought any other verdict?

Moreover, the D.C. prosecutor had already been accused of observing "a double standard when it comes to race" ("A Calculus of Race and Death?," Colbert King, Washington Post, June 3, 2006).  Clearly the reputation of the U.S. attorney's office -- perhaps even its ability to function with public trust -- was at stake.

Of the infamous rape case itself, Duke's Board Chairman Robert K. Steel allegedly justified the school's refusal to defend its own students on the grounds that "sometimes people have to suffer for the good of the organization."

And Durham's mayor explained:

I did what I had to be done to keep tensions in check. It's easy for those who didn't bear the burden of leadership to be critical now. But when it came down to it, I did what I could to keep the city together while national pressure was trying to tear it apart." (William Bell, October 3, 2007)

Translation: I needed to avoid a riot.

Modern ethicists might find little to criticize in the above.  To see the heavens fall rather than permit injustice would be ranked the folly of a misguided fanatic.  (For that matter, wouldn't France had been better-served if Dreyfus had just lied -- and confessed?)

The greater good has come to replace immutable legal principles and even truth as the goal of our judicial processes.  But after all, as another prosecutor faced with a similar situation once asked, "what is truth?"

Something strange happened along the road to Utopia: we ditched the supremacy of individual rights in favor of "the greatest good for the greatest number."

One manifestation of this was affirmative action.  In Regents of the University of California v. Bakke (1978), Justice Powell wrote:

There is a measure of inequity in forcing innocent persons ... to bear the burdens of redressing grievances not of their making.

But a sly concept was tucked into the opinion: an individual's rights might still be curtailed if this were done to serve a compelling government interest.

What evolved next was seen in Grutter v. Bollinger (2003).  Sandra Day O'Connor declared that "diversity" was just such a compelling interest, and therefore race could indeed be considered one factor (among many) in determining school admissions.

But not to worry:

We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

Yet how could we (or the justices) have expected this to be the stopping point?  Once the signpost indicated the direction to take, others were bound to follow.

In 2010, the Fourth Circuit Court of Appeals (Rowe Co. v. Tippett) upheld a North Carolina law which required weighted hiring in favor of blacks.  Judge James Beaty wrote in a concurring opinion that the law "serves the highest interest of the State in attempting to remedy this past discrimination and is fully consistent with the promise and purpose of the Fourteenth Amendment."

The Fourteenth Amendment was now stretched from guaranteeing non-discrimination into precisely the reverse.  Law was malleable in order to reach "the promise."  Wrote Beaty:

I agree wholeheartedly with the conclusion that the [law] ... is constitutional on its face and as applied to African Americans and Native Americans.

However, the judge continued:

I would note that the majority opinion has held that the Program is unconstitutional as applied to Hispanic Americans and Asian Americans.

Likewise, the rights of "nonminority women" came up short.

Justice Harlan had once been proud to declare that "[t]here is no caste here. ... In respect of civil rights, all citizens are equal before the law."  Yet the courts have spent the last thirty years trying to convince us that Justice Harlan was wrong, for the sake of a better world.

As if this were not bad enough, the same triumphalist, kingdom-of-the-perfect philosophy has spread even into the realm of criminal law: if there is a compelling government interest, it may be legal -- even moral -- to convict the innocent.

To cite just two recent examples (many more could be furnished) :

In 2007 in Georgetown -- near enough to the heart of the Republic that one could have hoped for a clearer concept of justice there than elsewhere -- activists were demanding that police stop a rash of assaults against gays.  Police finally thought they had found one possible suspect -- a university student -- and they arrested him in class during an exam.  He was handcuffed and taken to jail late on a Friday afternoon -- meaning he would have to remain locked up through the weekend.  He was offered immediate release if he would sign an admission of guilt.  He refused; allegedly, he had a video surveillance tape proving he had been across town at the time of the incident of which he was accused.

But the prosecutors couldn't release him without going back to square one.  The situation was further complicated when it developed that he was the son of a former Bush administration official.  Police then might not only be confirmed as indolent in finding the perpetrators of anti-gay violence; they could also be accused of giving preferential treatment to the children of the elite.  So the prosecutors settled on a functional solution: they stuck with the charges, and for the next nine months, the student faced the rigors of the justice system -- endlessly postponed hearings and appearances -- while his name was dragged through the mud.  Finally -- after public interest had dissipated -- the charges were dropped, and the prosecutors stated they were unable to place the suspect at the scene of the incident -- an adroit way of saying he was innocent without actually saying so.

But the greater good was served, the police were redeemed in the eyes of their critics, and social peace was preserved.  How could one individual's reputation be too much to be sacrificed to achieve that goal?

Similarly, in 2006, the nation was convulsed by charges of an interracial gang-rape in Durham.  A defendant in that case, Collin Finnerty, was concurrently accused of participating in a street scuffle in Georgetown.

Some of the facts of Finnerty's circumstances were irrelevant to the state.  Namely, Finnerty's actual transgression consisted of nothing more than attempting to act as a peacemaker by stepping between two quarrelling persons.  Indeed, for his pains, he was yanked away and then struck from behind and knocked to the ground.  Subsequently, he got up and yelled some angry epithets at his assailant -- but didn't strike him.

The public -- alert to the symbolism of a rich white prep school athlete accused of abusing a poor working woman of color -- waxed indignant.  People demanded retributive "justice" -- which the U.S. attorney, acutely attuned to the people's moods, compliantly provided.  A team of seventeen federal attorneys and staff prosecuted.  The judge harangued Finnerty's lawyer from the bench.  Prosecution witnesses changed their testimony; police officers remembered new facts which did not appear in their notes; the chief defense witness was not allowed to testify; and the defendant was found guilty (as required).

A contented braying emerged from the press mob.  Finnerty was thereafter portrayed as a monster of dissoluteness and wanton profligacy (as befitted any white male athlete).

What prosecutor in good conscience (as such things go nowadays) could have sought any other verdict?

Moreover, the D.C. prosecutor had already been accused of observing "a double standard when it comes to race" ("A Calculus of Race and Death?," Colbert King, Washington Post, June 3, 2006).  Clearly the reputation of the U.S. attorney's office -- perhaps even its ability to function with public trust -- was at stake.

Of the infamous rape case itself, Duke's Board Chairman Robert K. Steel allegedly justified the school's refusal to defend its own students on the grounds that "sometimes people have to suffer for the good of the organization."

And Durham's mayor explained:

I did what I had to be done to keep tensions in check. It's easy for those who didn't bear the burden of leadership to be critical now. But when it came down to it, I did what I could to keep the city together while national pressure was trying to tear it apart." (William Bell, October 3, 2007)

Translation: I needed to avoid a riot.

Modern ethicists might find little to criticize in the above.  To see the heavens fall rather than permit injustice would be ranked the folly of a misguided fanatic.  (For that matter, wouldn't France had been better-served if Dreyfus had just lied -- and confessed?)

The greater good has come to replace immutable legal principles and even truth as the goal of our judicial processes.  But after all, as another prosecutor faced with a similar situation once asked, "what is truth?"

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