The Jennings blog has moved!

As of October 1, 2011 the Jennings Project blog has moved and joined forces with Constitution Daily, the Center’s daily digest of smart conversation on the Constitution. All new posts will be published there, so be sure to subscribe and follow Constitution Daily on Twitter. If you are interested in submitting a post to Constitution Daily, please email Stefan Frank at JenningsProject@constitutioncenter.org.

Monday, December 7, 2009

An Unusually Brittle Eighth Amendment Exchange

A few days ago, Tennessee executed Cecil Johnson for the brutal 1980 murders of three people, including a 12 year old boy, during a robbery of a market. Johnson made one last attempt at a stay when he petitioned the Supreme Court which refused to hear his case. In their opinions, Justice Clarence Thomas, writing for the majority, and Justice John Paul Stevens, writing the dissenting opinion, engaged in a rather contentious exchange. Excerpts from both opinions are reproduced below.

Friday, December 4, 2009

Is This Any Way to Run a Constitutional Republic? The Swiss Amend Their Constitution to Ban Minarets

Last weekend, the people of Switzerland voted to amend their constitution. The document’s original guarantee of religious liberty will now be qualified through an amendment to Article 72 (which defines the line between church and state), officially banning the construction of minarets, those distinctive large spires that rise from mosques and are used to assist Muslims in the call to prayer.

Thursday, November 19, 2009

Got a spare million or two?

GEORGE WASHINGTON’S LETTER EXTOLLING THE VIRTUES OF THE CONSTITUTION GOES UP FOR SALE IN NEW YORK

The four-page letter above, written by George Washington to his nephew Bushrod Washington on November 9, 1787, goes on sale December 4 at Christie’s auction house in New York City. It was penned a few days after Washington returned from the constitutional convention in Philadelphia and contains sentiments from Washington on the ratification process, then underway. "If . . . the Union of the whole is a desirable object,” he writes in an orderly penmanship, “the parts which compose it must yield a little in order to accomplish it.” Christies estimates the final sale of the 224 year old letter will be somewhere between $1.5 and 2.5 million.

Wednesday, November 18, 2009







ARGENTINA BECOMES THE FIRST LATIN AMERICAN COUNTRY TO DECLARE THAT LAWS BANNING GAY MARRIAGE VIOLATE CONSTITUTION
The story puts Argentina’s high court in direct conflict with the Catholic Church in a country where 88 percent of the people are Catholic.


CANADA GREETS PRINCE CHARLES, ITS FUTURE KING, WITH INDIFFERENCE
The country’s constitution (which, like Great Britain’s, is not a single document but an amalgamation of different acts and traditions) provides the role of head of state to the British monarchy, though most royal constitutional and ceremonial roles are carried out by the Governor General, who serves as the “Queen’s representative.”


SRI LANKA RELEASES PUBLISHER, CONTINUES TO HOLD JOURNALIST CONVICTED OF WRITINGS THAT “CAUSE COMMUNAL DISHARMONY”
The publisher of North Eastern Monthly was released because the editor was considered the culpable party for columns that were deemed to have incited ethnic violence. Last May, President Obama had singled out the same editor, J. S. Tissainayagam, for praise on World Press Day. Tissainayagam was convicted in September of this year for writing columns that criticized the Sri Lankan Army’s treatment of the terrorist group known as the Tamil Tigers. At the time of Tissainayagam’s conviction under the country’s Prevention of Terrorism Act, the prosecutor argued that “the Constitution gives freedom of the press but that doesn’t allow anybody to spread false information to spur ethnic violence.” Below are the excerpts from Tissainayagam’s columns that prompted his prosecution:

Providing security to Tamils now will define northeastern politics of the future It is fairly obvious that the Government is not going to offer them any protection. In fact it is the state security forces that are the main perpetrator of the killings.
July 2006, North Eastern Monthly

With no military options Government buys time by offering watered-down devolution Such offensives against the civilians are accompanied by attempts to starve the population by refusing them food as well as medicines and fuel.
November 2006, North Eastern Monthly


IRAQ AGAIN IN DANGER OF STALLING ELECTIONS; THIS TIME, THE SUNNIS ARE THE OBSTACLE
Just when the Kurds had lifted their objections (see our two earlier posts on this subject below), now Iraq's Vice President, Tariq al-Hashimi, a Sunni, has stepped up to veto the January elections, essentially because the rules threaten to limit the number of Sunni seats in what will surely be a Shiite-majority Parliament. Prime Minister Nouri-al-Maliki, a Shiite, declared that the veto was "a dangerous threat to the democratic and political process." Any delay in the elections will likely throw the planned US withdrawal of troops off schedule.


MEXICO MOVES CLOSER TO A CONSTITUTIONAL BAN ON ABORTION
The proposed amendment to the Mexican constitution declaring that life begins at conception must now be passed by both houses of Congress, then sent to the state legislatures for a majority approval. Advocates say that they have the necessary votes to pass it through Congress and since more than half of Mexico's 32 states already have state laws banning abortion, it seems likely to pass there as well, becoming law.

Monday, November 16, 2009

Of federalism, the death penalty, and a sensational Connecticut murder story…

IS IT OUR POLITICS THAT MAKES US THE MOST MURDEROUS OF WESTERN NATIONS?

A recent edition of The New Yorker contained a sobering piece on America’s history of violence. The piece, by Jill Lepore, which is in the form of an extensive book review, was written before the murderous rampage at Ford Hood in which thirteen died, but it makes for compelling reading especially in light of those events. If convicted, Hasan will almost certainly face capital punishment. (see our story froma few days ago below). Should he? Is there a societal benefit to killing him? Hasan’s story contains some unique qualities – his radical Muslim identifications, his status in a profession of trust within the military -- which may defy generalization, but any time that the state asserts its power to kill, some of the same questions arise.

Lepore begins her piece with a detailed description of a particularly grizzly 2007 murder in the town of Cheshire, Connecticut. I happen to live in Connecticut, so this is a shocking tale with which I am very familiar. It is an unusual murder story in that the victims are white, upper middle class and their killing was particularly brutal. The perpetrators broke into the home of a prominent doctor, tied him up in the basement and beat him unconscious with a baseball bat. They then tortured the rest of his family through the night, raping the doctor’s wife and one of his young daughters. In the morning, after one of them took the wife off to withdraw $15,000 from an ATM, he returned her to the home where he strangled her, doused the house with gasoline and set it afire, killing both girls. Only the doctor, whom they had left for dead, survived. Surely if anyone deserves to die at hands of the state it is those who committed these most heinous crimes. (The trial of the two men accused of the acts begins in January).

But the death penalty is not first on Lepore’s agenda. Working from the inspiration of the books she is reviewing, she first addresses the most plaintive of questions raised by this lurid tale, “why?”

Between the convulsive emotional response to a single murder and an elusive general theory of murder lies another kind of contemplation: the study of the murderousness of nations. The United States has the highest homicide rate of any affluent democracy, nearly four times that of France and the United Kingdom, and six times that of Germany. Why? Historians haven’t often asked this question. Even historians who like to try to solve cold cases usually cede to sociologists and other social scientists the study of what makes murder rates rise and fall, or what might account for why one country is more murderous than another. Only in the nineteen-seventies did historians begin studying homicide in any systematic way. In the United States, that effort was led by Eric Monkkonen, who died in 2005, his promising work unfinished. Monkkonen’s research has been taken up by Randolph Roth, whose book “American Homicide” (Harvard; $45) offers a vast investigation of murder, in the aggregate, and over time. Roth’s argument is profoundly unsettling. There is and always has been, he claims, an American way of murder. It is the price of our politics.

Monkkonen’s last work, which remained unfinished at his death, was called “Homicide: Explaining America’s Exceptionalism.” In it, the author pointed to four distinctively American themes as encouraging our penchant for violence: mobility, federalism, slavery, and tolerance. Lepore describes Monkkonen’s theory: “Mobility breaks social ties; federalism is a weak form of government; slavery not only rationalized a culture of violence among white Southerners (where the murder rate has been disproportionately high, as it has, and remains, in many of the so-called law-and-order states) but also infected American culture; and American judges and juries have historically proved less willing than their European counterparts to convict murderers, tolerating, among other crimes, racial murders and killings by jealous spouses.” By a “weak” form of government, the author means a limited government, reluctant to intrude, a quality which most Americans see as one of the strengths of our system, but it is a system that thrives on limiting, not extending, government’s hand and that goes for criminal prosecution as well as for taxation.

Working forward from Monkkonen, Lepore then cites Gary LaFree, (“Losing Legitimacy: Street Crime and the Decline of Social Institutions in America”) whose work asserts that the crime rate correlates, roughly, with trust in government. For instance, LaFree says that during the Vietnam era, which was characterized by a loss of respect for elected officials, the crime rate rose. Randolph Roth, the author who has tried to pick up where Monkkonen left off, promote this theory. He has determined that four factors relate directly with the murder rate: faith in government and enforcing just laws; trust in the sincerity of legitimately elected officials; bonding among social groups based on race, religion, or political affiliation; and confidence that the social hierarchy allows for respect to be earned without recourse to violence. When these attitudes are widely held, there is little murderous violence. When they are not, the society resorts to violence.

Now, just because two phenomena correlate in time does not mean that one causes the other. (The Yankees seem to always win worlds championships when Democrats are in power, as PJP participant Ari Fleischer wrote in an Op-ed for the New York Times recently, but that is hardly enough evidence for a Republican Yankee fan to switch parties). Still, if you play out this theory, as Roth does, the implications are startling. Democracy requires a kind of healthy skepticism. But if a high American murder rate is a by-product of such distrust must the more vigorous democracies always suffer so? Roth even connects his theory to the presidency. The statistics make it clear that in the twentieth century, murder rates have declined when the presidency is occupied by a liberal or centrist leader, he writes, “and they have risen during the terms of presidents who presided over political and economic crises, abused their power, or engaged in unpopular wars.” The murder rate also appears to follow Presidential approval ratings.

As Lepore points out, sensational crimes often prompt legislative activity. California’s “three-strikes and you’re out law” was the idea of Mike Reynolds, a Fresno photographer whose 18 year old daughter was murdered. Last year, after the Cheshire murders, the Connecticut assembly doubled and tripled mandatory penalties for second- and third-time offenders. (Those accused of the crimes had multiple burglary convictions, but no history of violent crime.)

In 1784, the Yale senior class debated whether the death penalty was “too severe & rigorous in the United States for the present Stage of Society.” Apparently the conclusion was that it was not because here we are 225 years later and capital punishment remains a part of Connecticut law, as it has consistently been since 1642.

During the nineteenth century, the governor of Connecticut twice asked the legislature to eliminate the death penalty, but the legislature refused.When serial murderer Michael Ross was killed by lethal injection in 2005 he became the first to be executed in Connecticut since 1960. Paradoxically, earlier this year, the Connecticut legislature voted to abolish the death penalty, but Governor Jodi Rell, a Republican, vetoed it.

In September of this year, St. Martin’s Paperbacks issued a sensational book called “In the Middle of the Night” in which author Brian McDonald used extensive interviews with one of the alleged perpetrators to tell the story of the Cheshire murders. Apparently he also used handwritten notes in which the accused incongruously closed each entry with a “happy face.” Probably because of the horrific nature of these crimes, St. Martin’s has been careful to limit publicity for the book and while Amazon is selling it, it also includes a “customer discussion” page in which dozens of people implore viewers not to buy it since it violates the judge’s pre-trial gag order and otherwise seeks to profit from the crime. The author uses his own website to admit that the book is poorly written (reviewers have slammed his previous titles for their shoddy prose), then also proudly defends his first amendment rights by publishing a link to an editorial that criticizes those who argued that the Cheshire Library should not include McDonald’s book on its shelves. McDonald and the editorial-writer are wrong to think that the first amendment comes into play here since neither Congress nor any other government body has passed a law “abridging” McDonald’s “freedom of speech.” Certainly community libraries should have the power to determine what they choose to put on their shelves and no one wanting to read this book will find it difficult to get a copy. Of course the very fact that such “true crime” investigations are so popular – there are dozens of examples of best-selling books from this genre -- may be yet another sign of Americans’ lust for violence.

TB

Thursday, November 12, 2009

AMBASSADORIAL SIDE BENEFITS?





“The idea that an oil company was participating in the drafting of the Iraqi Constitution leaves me speechless...[In effect, the company] has a representative in the room, drafting."

Feisal Amin al-Istrabadi, an Iraqi official, in a story in The New York Times, November 12, 2009. He is speaking about reports that Peter Galbraith, a former United States Ambassador who was serving as an unpaid advisor to the Kurdish regional government, helped forge language in the Iraqi constitution that provided for significant autonomy for the Kurds, including claim to all oil revenues tapped in their region. At the time, Mr. Galbraith was being paid by DNO, a Norwegian oil company, from which he stands now to earn hundreds of millions of dollars.

Tuesday, November 10, 2009

UPDATE: Obama's Two-Front Dilemma

This past weekend, the Obama administration scored a victory in Iraq when it helped broker a deal over political divisions in the northern province of Kirkuk. As described in our post “Obama’s Two Front Dilemma” below, the debate over Kirkuk appeared to be putting Iraq on the path to a constitutional crisis and threatened the planned draw-down of American troops there as well as their re-deployment to Afghanistan. The Iraqi constitution requires that a new election be held before the end of January, 2010, but the questions over who could vote and what choices would be offered to voters had created a stalemate over Kirkuk.

Arabs and Turkmens in Kirkuk argued for following voter registration lists from five years ago, while Kurds pushed to adopt voter rolls from 2009 which reflected the larger numbers of Kurds who had moved back to Kirkuk since the fall of Sadaam Hussein. The agreement was to use the 2009 list, while allowing the United Nations to conduct a post-election in depth study of any claim of fraud over the validity of the new voters.

In a key sign of Iraqi political maturity and stability, the election will also permit voters to pick from individual office-seekers. In the past, voters could only choose from a list of ethnically-defined parties. Upon victory, the party leadership would then choose who would get to hold the office. In the war-torn Iraq of 2004-2005 that protected the candidates from being targeted for assassination by insurgents, but severely limited the exercise of democracy.

"THIS AIN'T NO THINKIN' THING"





"What makes Armey an effective advocate is how he uses his status as a learned professor and a plain-spoken man to deliver the message his audiences want to believe: that various Democratic initiatives are not just wrongheaded policy but also flagrant violations of the Constitution and affronts to traditional American values. In his telling, the Constitution is elevated to something like a sacred religious text, written by Christian believers, possibly divinely inspired and intended to be read in the most literal way. It contains solutions to any civic problem faced by modern Americans, including those brought about by the tangled health care system. To Armey, the Constitution is not a “living document” — a phrase he mocks at rallies, to laughs and great applause — and is in fact so straightforward and speaks so directly to this era that it’s reasonable to wonder why we need the nine justices of the Supreme Court to interpret it.

At the Harley dealership [where he was speaking to a large crowd of conservative activists], he emphasized that everyone must stay focused on the polestar, the nation’s essential document. “What should be your guide?” he said, pausing for a beat before shouting out the answer. “The Constitution. This ain’t no thinkin’ thing.”

From "Dick Armey is Back on the Attack", New York Times Magazine, Sunday, November 8, 2009

Monday, November 9, 2009

WHY OBAMA IS BEING SO CAREFUL IN WHAT HE SAYS ABOUT HASAN

If Major Nidal Malik Hasan, the Army psychiatrist who is alleged to have been the shooter in the horrific killings of 13 at Fort Hood last Friday, is convicted of these crimes, it is likely that he will face the death penalty. Texas is by far the most prolific capital punisher among the fifty states; roughly forty percent of those executed since the Supreme Court reversed the ban on capital punishment in 1976*, have been killed in the Lone Star state. But Texas’s history will likely be proven irrelevant here. Hasan will not be tried under Texas law or before a Texas court; as an army officer whose alleged crimes were committed on the army’s largest base, he will almost certainly be tried in a military court under the uniform code of military justice (UCMJ).

There are six people on the military death row now, all of them convicted of murder and all incarcerated at Fort Leavenworth, Kansas. In recent days, only one has been poised to take the needle (military executions are by lethal injection), the other five holding onto the hopes for a re-trial or appeal. It turns out that a holding pattern has proved a good policy for the convicted. Several of those on death row now have been there for upwards of ten years while the last military execution was in 1961, forty-eight years ago.

Hasan will be tried before a panel of superiors – the 12 people sitting in determination of his fate must by UCMJ stipulation outrank him – and if the panel awards a sentence of death, that fate must be affirmed by no one less than the president of the United States. Until 2008, when President George W. Bush signed a death sentence for serial murderer Private Ronald A. Gray, President Dwight Eisenhower was the last chief executive to confirm a death sentence in a capital case tried in military court. But at the last moment, even Gray received a stay of execution, joining the others who await their fates in the appeals process.

Though there are many Democrats whose personal attitudes about the death penalty would make it hard, if not impossible, for them to sign such an order, President Obama has made it clear that he favors capital punishment in cases “so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage.” Still, he has to be careful what he says. It is this ultimate life and death authority and his role as “commander-in-chief” that makes it very hard for Obama to speak candidly about his attitudes on this case. If he should base his reactions on his outrage at the suspected killer’s affiliations and obvious guilt, he may very well squelch the chances for a conviction by subjecting the panel to what in military justice is called “command influence,” or the burden imposed on a military court when those of superior rank express their attitudes about a case under trial.

TB

*In 1972, the Court, in Furman v Georgia, found the death penalty unconstitutional for violating the eighth amendment prohibition on “cruel and unusual punishment,” but four years later it let stand state laws providing for capital punishment in cases with aggravated circumstances. With that, the short-lived American death penalty moratorium was over.

Tuesday, October 27, 2009

Cartooning the Constitution


When cheerleaders at a public high school in Georgia were ordered to stop carrying banners with Christian scripture emblazoned on them (below), Clay Bennett, working for the Chattanooga, Tennessee Times Free Press imagined (above) how they might attempt to get around the ban which was enforced, of course, in response to first amendment concerns about the dividing line between church and state. In fact, as this New York Times story explains, the banners moved from the hands of cheerleaders to the hands of audience-members whose first amendment free expression right would actually defend their display.
T.B.

Monday, October 26, 2009

“They said my privacy wasn’t intruded on because the surveillance was covert…”





The quote above, with its absurdist overtones, appeared in a recent article in the Daily Mail, the British tabloid. It is the plaint of a mother who came under the attention of authorities for daring to keep her child enrolled in a school even though she had moved outside the district. In fact, she had complied with residency requirements by staying in her old residence, which was in the district, until the date required for enrollment, but it is the use of such surveillance powers by the state – examining three years worth of phone records and secretly following her for weeks -- to investigate the relatively benign “crime” that is the issue here.
Such is life in what has become one of the most spied on populations in the world, the English. The New York Times also did a recent story on the couple, Jenny Paton and her partner, Tim Joyce, a computer programmer. Their daughter was finally admitted to the school. But the authorities in the borough of Poole, town of Dorchester, insist that they were acting within the law. In fact, they probably were.

“I drove up the Old Kent Road the other day. I counted 13 traffic cameras in less than a mile.”

In England, the birthplace of so many Western liberties, privacy is under attack. A law enacted in 2000, with terrorist threats in mind, allows local governments to utilize surveillance powers with no oversight from the courts. As a result, utilizing such self-authorization, communities have been employing powers intended to stop suicide bomb plots on welfare cheats, loan delinquents, litterers and even those who dogs are suspected of fouling the public gardens.

Public ignorance is one reason that the law has been abused with such ease. When surveillance is covert, it raises questions like those posed in the United States shortly after the Bush administration assured the public that it had never used some of the controversial powers provided to it by the Patriot Act: that’s nice, some said, mockingly, but how would we know if you did anyway? Still, indifference to the law itself has also been a factor. “I did not know the council had the power to put people under surveillance,” said Tim Joyce of his family’s ordeal. “As far as I was concerned that was something only the Home Secretary could approve.”

A study by Pr
ivacy International in 2007 affirmed that among Western democracies the United Kingdom is the worst abuser of privacy in the world. Among all countries, only Malaysia and China scored lower. Lest any of you American chauvinists be taking comfort, the United States scored disturbingly low as well (more on that in a future post). The map below, color-coded with black as the worst abusers of privacy and green as the least, tells the story.



Technology, of course, is one driver of this issue. Closed-circuit television or CCTV has been employed as a law enforcement tool in England for some time. There are millions of such cameras recording activity in city centers. When first installed, CCTV provided a crude image assisting police in prosecuting little more than traffic infractions. But over time these devices have developed far better resolution and the ability to recognize facial characteristics. When combined now with the relatively new UK identity card system, it is only a matter of time before facial identities will be cross-referenced allowing the movements of specific people to be monitored relatively easily. There are now over 4 million cameras in the UK, or one for every 14 people. (By contrast, there are 6.5 million in the rest of Europe).

"You don't use a sledgehammer to crack a nut, nor targeted surveillance to stop a litter bug.”

That’s the objection of Shami Chakrabarti, a UK privacy advocate who runs a group called Liberty. He is speaking about the law that allowed Poole to eavesdrop on Jenny Paton, and while there is no doubt that the surveillance technologies now endemic throughout England have led to more, and more reliable, arrests in serious crimes there is also no doubt that when such sweeping powers are given to law enforcement authorities their abuse is likely to follow.



Now, just think of what awaits England (and, other surveillance-friendly countries): A British company recently developed The Bug, a CCTV technique involving eight cameras that can scan in a multitude of directions. You can read about it on the company’s website here. The Bug uses unique software to detect suspicious conduct. Once any of fifty acts is noted – for instance, running wildly or darting in and around buildings – the cameras are programmed to zero in on that person and follow them indefinitely. The Bug, which has already been installed in several English cities, may mistake a window-shopper for a loiterer, admits a company spokesman, “but on every occasion that a crime has been committed the system has always caught evidence.” Indeed, the company markets The Bug with the phrase “intelligent cameras never sleep.”


T.B.

Friday, October 23, 2009

OBAMA'S TWO-FRONT DILEMMA

President Obama has a problem that no president in recent memory, save perhaps his immediate predecessor, has had to face: two war fronts. When Bush was president, it seemed (falsely, as it turned out) that Afghanistan was well under control before he began his ill-fated invasion of Iraq in 2003. As Obama considers a decision on increasing American troops in Afghanistan, some -- even a few in the president's war council -- now believe Iraq to be under control, but that could prove to be little more than wishful thinking.

The Iraqi constitution requires a new election before January 31, 2010 and the Obama administration's pullout schedule was predicated on Iraq having solidified its democratic foundation by putting a new government firmly in place by then -- one presumably formed by elections that, unlike the last ones there, can be executed without the cloud of insurgent violence hanging over every polling place.

But a dispute colored by all the problems of an ethnically-divided nation still short of political maturity remains an imposing obstacle. The country's present election laws require voters to cast their ballots for political parties -- not individuals -- and leaves the assignments of parliamentary representatives up to the winning parties themselves. This would be as if the American election was a battle between the "African-American Party", the "Hispanic Party" and, say, the "Christian Right" party, with your vote going predictably to whatever ethnic or religious identification you claimed.

Most Iraqi political leaders want to abandon that for a more Western style of democracy, with voters choosing between individual candidates. But in the city of Kirkuk, where Kurds, Arabs and Turkmen are all represented, there remains an impasse that could well force an election crisis. There, the Arab and Turkmen parties claim that Kurds have been moving population into the region in an attempt to eventually annex it as a part of greater Kurdistan. A party-based election would increase their chances of doing that.

As the country argues over this, there is a clash over American policy between GEN Ray Odierno, the American commander, and Ambassador Chris Hill. Hill wants the Iraqis to figure Kirkuk out on their own while Odierno wants to force the Iraqis forward by stepping in to broker a deal that leaves the constitutionally-mandated election cycle in place. Without an election, the chances for maintaining the draw-down Obama has scheduled -- and upon which a commitment of new troops to Afghanistan depends -- will fade and so will respect for constitutional government.

GEN David Petraeus, head of Central Command, has frequently said that Americans need to adjust their expectations when examining the situations in both war-torn Iraq and war-torn Afghanistan. He says we should be satisfied with an "Iraq-cracy" not an American-style democracy. But when a constitution becomes a document of good intentions rather than the hard granite of the law, it usually creates a situation ripe for electoral chaos and a breakdown of order. In other words, even as we become more focussed on the considerable challenges in Afghanistan, the stakes for America in Iraq remain high.

TB

Wednesday, October 21, 2009

Negotiating a "One Free Swerve" Rule

Should the Constitution be Read to Prevent Police From Acting on a Tip that a Driver is Drunk -- until his driving actually shows it?

This is where the logic of constitutional law can seem mystifying, yet the Supreme Court yesterday decided overwhelmingly to let it stand. Why? With just two justices (Roberts and Scalia) dissenting, the Court voted not to hear the case of Virginia v. Harris and let an appellate court decision remain in force. The details of the case are simple. An anonymous tip delivered to a police dispatcher tells of an inebriated man driving a green Nissan Altima, even including a few details of his license plate. An officer is dispatched to follow the car. In the time during which he observes it, the officer finds the driver's conduct to be reasonable and cautious, proceeding under the speed limit, braking appropriately in advance of stoplights and even slowing down at intersections. But eventually, as the driver unexpectedly pulls over to the side of the road, the officer pulls behind him and approaches the car. He discovers that in fact Joseph Harris's breath does smell of alcohol, his speech is slurred and his eyes are watery. After Harris fails a sobriety test, the officer arrests him on a DUI. Harris claims a violation of his Fourth Amendment rights, asserting that his arrest involved an "unreasonable search and seizure." He believes that the officer had no "reason" to pull him over other than the inherently suspect "anonymous tip." Eventually, on appeal a federal court agrees. But opponents -- including Chief Justice John Roberts -- ask, aren't we preventing police from utilizing whatever tools they need to combat a deadly social ill?

The answer lies somewhere in the fragile balance of "rights"and "responsibilities" -- the individual's right to remain free from the government unreasonably intruding on private affairs and the responsibility of the state to secure public safety. One can certainly imagine how absent a "one free swerve rule" police could abuse their power. Once a mere tip -- anonymous or otherwise -- meets the standard for a criminal investigation of a driver it could open up abuse by those holding a grudge against the accused or by a prankster or simply by someone who misunderstood what he or she saw.

In his dissent to the Court's denial of certiorari, Chief Justice Roberts pointed out the severity of the drunk driving problem -- a death every forty minutes, 13,000 deaths a year -- and how the Court's recognition of a "do nothing" rule, requiring the police to do nothing until the driver commits an unsafe act leaves open the possibility that the "one free swerve" may be the deadly one.

Roberts then raises an interesting question -- should we treat all Fourth Amendment situations equally? His answer is no. Does the imminent threat posed by a drunk driver suggest that we need a rule that excludes such situations from the stricter analysis that might apply to a search where time is not the pressing factor? Since the majority based its decision on precedent -- a case called Florida v J. L. where the Court disallowed an arrest based on an anonymous tip -- Roberts asks whether that case, which involved the frisking of a man at a bus stop on a tip that he was carrying a gun, wasn't substantially different from this one. Aren't tips about drunken behavior likely to be based upon eyewitness accounts rather than rumor? Isn't there a diminished expectation of privacy when driving on public roads? Isn't driving drunk inherently dangerous whereas other crimes -- even carrying a gun -- are not? He also points out the conflict of decisions on this subject that characterizes lower court rulings, pleading that his own court clear up the confusion by taking on this case. You can read the Roberts dissent here.

This is the sort of case which will get popular attention. You can almost hear Lou Dobbs running on about it. "How can the Court tie the hands of police on a subject of such life and death importance?" But as with so many constitutional issues, the depths of the argument are not immediately apparent when examining the case by itself. Only an examination of the law -- here, the Fourth amendment -- and the subtle meanings of such subjective terms as "unreasonable" can do that.

TB

Tuesday, October 13, 2009

THE PJP CONVERSATION: BARRY SCHALLER AND FREEMAN DYSON



How should law negotiate the bioethical challenges of the 21st century? Carefully; Very carefully
As part of his summer term as PJP’s “guest blogger,” Justice Barry Schaller visited the eminent theoretical physicist Freeman Dyson at the Institute for Advanced Study in Princeton, New Jersey, where Dyson, 85, is a professor emeritus. In addition to doing groundbreaking research in the field of quantum electrodynamics, Dyson has worked on nuclear reactors, solid-state physics, ferromagnetism, astrophysics and biology, always looking for problems, as he describes it, “where elegant mathematics could be usefully applied.” Born and raised in England, he came to the United States after World War II. A short, wisp of a man an air of an English boarding school, he has collaborated with the Nobel laureates Hans Bethe and Richard Feynman as well as written several books for the general public, most notably, “Weapons and Hope,” “A Many-Colored Glass,” “The Sun, the Genome, and the Internet,” and “The Scientist as Rebel.” Recently, Dyson has added his voice to those who speculate about the future of science as it confronts new and scarier ethical dilemmas. He has imagined that people will someday furnish their homes with chairs they will “grow,” that children will use biology kits to create their very own pet dinosaurs, and that carbon-eating trees will solve much of the global warming problem (Otherwise a voice for liberal politics and an ardent anti-war activist, his view that the fears of global warming have been “exaggerated” has lost him friends and made him something of a pariah among environmentalists).

Justice Schaller, whose legal scholarship has focused on bioethics and the law, met Dyson for lunch and their animated conversation continued late into the afternoon in Dyson’s IAS office. An edited version of their exchange, touching on several hot constitutional subjects, follows.

Schaller: Todd Brewster and I were both intrigued by your piece in The New York Review of Books a couple of years ago about our biotech future. The opening of that piece was just stunning, of course, because you rhapsodize about your visit to the Philadelphia flower show and the enormous variety of new species of plants and flowers you discovered. And then you compare that to what you imagine the future to hold for the privatization, or domestication of biotechnology, including the following passage: “The final step in the domestication of biotechnology,” you write, “will be biotech games, designed like computer games for children down to kindergarten age but played with real eggs and seeds rather than with images on a screen. Playing such games, kids will acquire an intimate feeling for the organisms that they are growing. The winner could be the kid whose seed grows the prickliest cactus, or the kid whose egg hatches the cutest dinosaur. These games will be messy and possibly dangerous. Rules and regulations will be needed to make sure that our kids do not endanger themselves and others. The dangers of biotechnology are real and serious.” If the 20th century was the century of physics, then the 21st century will almost surely be the century of biology and yet while the dangers of the last century were under the control of large institutions like government, the dangers in the personalization of biotechnology are within the grasp of everyone, as you say, with a science kit.

Dyson: Yes. Well, biotechnology will be enormously powerful. There’s no way you can escape that. Biotechnology means we have our hands on the driving force of everything we see that’s alive so that it becomes the power and also a responsibility to organize everything that’s alive. It’s hard even to grasp how much that can change the world. But it clearly will change the world.
Schaller: So you think we’re at one of those hinge moments in human history, when all will change going forward?

Dyson: Yes, it has to be. I don’t see any way to escape it. It has its horrible dangers, of course. But at the same time it’s necessary because it’s only by using biotechnology creatively that we can solve the problems of energy or disease or poverty or any of these big problems.
Schaller: And the misuse of it could be very dangerous, indeed.
Dyson: Yes, of course. But the good and the bad always come together. We can’t escape from it because the good is absolutely essential.
Schaller: And science doesn’t let you cherry pick what you like and don’t like –

Dyson: Yes, well you can up to a point. I mean, we’ve been very successful with biology for the last 50 years. I am amazed how well we have done. Gene splicing began 30 years ago. When gene splicing was invented, it meant that you could transfer genes from a bacterium to a human, from a human to a mouse, or whatever you like. You could move genes easily from one species to another. And the biologists immediately understood that this was something really important. And they called an international meeting.[1] They had two meetings, in fact, in which the entire international community of biologists came together and solemnly discussed what to do. And they agreed on the set of guidelines, that some experiments were to be allowed, while other experiments were to be forgiven. And it was to be done by the biologists themselves without the help of the government. And it worked. I mean, the amazing thing is through the last 30 years there have been no major accidents.

And as far as we know, no really successful biological attacks. There have been a few people killed, like the anthrax victims after 9/11, but on a very small scale. So I think biologists have done amazingly well. This is a good sign for the future that they’ve taken these possibilities much more seriously than the physicists did when the physicists invented nuclear weapons.

Schaller: Of course, back then the physicists were answering to politicians; they weren’t controlling these decisions themselves.

Dyson: But they could have been. At least I think they could have been, though that’s, of course, an unpopular view. There was a meeting in Washington in 1939 when fission has just been discovered. It was [held] at George Washington University. George Gamow, who was a great physicist of that time, organized it. And all the leading people were there, including Fermi[2] and Bohr…That would have been the moment. They knew that nuclear weapons were possible and they ducked the issue. That was really a shame.[3]

They could have at that point – none of the governments were interested. They could have had a gentlemen’s agreement not to build bombs, and I think it very likely would have stuck because the governments were not interested. In every case, it took three or four years’ active pressure from the scientists even to get the government to take it seriously. Without that active pressure, it’s not at all likely the governments would have gotten into it.
Schaller: But to think of human affairs being governed or somehow closed in by strict regulation would be a shame.

Dyson: When you’re making ethical judgments, it’s a completely different way of thinking from making scientific judgments. When you make ethical judgments, you have to come to a conclusion. When you’re making scientific judgments, most of the time the best is not to come to a conclusion, but to admit that things are still unknown.

Schaller: But now, if we come back to the starting point on this question, it is one thing when you are attempting to control the dangers of science through government regulation, another when you are hoping to establish a professional consensus and a quite another when you have a domesticated biology in this next age, as you describe it, so that the average person in that average household, even children, will have little biology kits and be able to tinker with creating life forms.

And I wonder what you think about balancing the risk of this – what sort of limitations should be placed on this through regulations of any kind?

Dyson: Well, of course, that’s for our grandchildren to decide. We can’t…I think it’s a mistake to try to legislate technological developments in advance because you always guess wrong if you try to guess what’s going to happen next. Nonetheless, I think in terms of the computer industry as being analogous, that computers began as big machines, very expensive, and were only handled by experts at big organizations. We never imagined that every house would be full of computers, and now of course they are. And, of course, the way it has gone is that they’ve got smaller and smaller and more and more user friendly. And they have become toys for children.
So I think of that as an analogy, and maybe none of that happens.[4] We don’t know. Still, it seems quite plausible that it will. What we know for sure is that the basic tools of biotechnology have become cheaper and faster just as fast as computer technology did.

And as those prices come down it’s hard to imagine that people won’t be attracted to it, especially in view of the fact that they do tend to enjoy animals and flowers and plants and trees and all that. It’s part of our heritage to be very involved with biology.

Schaller: Do you think there are any risks of tampering with life in ways that should be limited in advance?

Dyson: Of course, there are tremendous risks, and it’s obvious that if you’d consider a real virus as compared with a computer engineer virus, the real virus is a hell of lot nastier and there’s much more harm you can do.So there have to be limits. I mean, obviously, you shouldn’t allow children to mess around with viruses. That’s clearly asking for trouble. So there have to be rules on manufacturers if you make kits in biology, they must make it possible to fool around with plants and dogs and cats maybe, but certainly not with viruses and bacteria.

So there have to be very tough rules. But we do have some experience in the medical world for rules imposed in order to protect humans. In the medical world, there are really strong laws against experimenting with human subjects, and if you do experiments with human subjects, you have to follow the rule or else you’ll go to jail.
So that’s a well established legal precedent. So in the same kind of precedent could be used for people who are manufacturing biotech kits. But people have to decide, of course, how far they want to go.

I’m more concerned in a way that we go too far in the way of regulation as we have with chemicals. When I was a kid, of course, everybody could play around with chemicals, and many of us did. In those days, you could just go down to a chemist shop and buy gunpowder or any of these other noxious chemicals. And every child who wanted to be a scientist would start off with playing around with fireworks and doing quite dangerous experiments.

Now all that has become impossible. You can’t sell any kind of a chemical kit that has any real juice. And chemistry for kids essentially has been destroyed by that. I think the laws have become so strict. There’s an amusing book by Oliver Sacks about his childhood called Uncle Tungsten[5]. Of course, he had a wonderful childhood because his uncle was owner of a chemical company and so he got free supplies of chemicals from his uncle and he could do wonderful chemical experiments at home.
And all that, of course, is now a thing of the past. It’s a big loss. That’s one of the reasons why kids get turned off from science. The experiments are so boring. If you can’t make a bang, it’s not much fun.[6]

Schaller: So your idea would allow individual creativity to flourish.

Dyson: Yes, you would hope so. And I think it certainly could be done without bugs, without bacteria and viruses. Things that are attractive to kids are bigger animals and bigger plants, which is lucky. The big animals and big plants can be dangerous. But not in such an insidious fashion.
Schaller: How do you feel about gene patenting? As you know, the United States Supreme Court allowed patenting of life forms[7], and patents have been issued, as I understand the figure, on about 20 percent of the genes that have been discovered so far. Do you see that as necessary in order to foster development of research that will benefit people, or do you think that it’s getting a bit dangerous that there’s so much privatization in this field? Because I know you’ve said some things about believing in an open source community in many respects.[8]

Dyson: I’m against excessive patenting, and I’m not an expert on patent law. I mean, obviously, patent law is good when it’s applied to processes, but I think not good when it’s applied to things. That’s roughly speaking the way I would put it, that the law should protect a particular way of manufacturing a substance. It should not protect the substance itself.

I don’t know how that applies. I would say that I would not be in favor of patenting a gene as an object, but just patenting something you do with a gene. But I’m not sure whether that actually works.

Schaller: Bioethics, as you know, touches on a lot of different fields, from reproductive issues, beginning of life issues, end of life issues, and everything in between, and tries to apply an agreed-upon code of ethics to all these fields. In between would be allocation of resources, medical ethics and the physician/patient relationship and so on.

What do you think is the most important area? I recall that, in an interview some time ago, you spoke about reproductive issues, issues of genetic selection and so on. But I wonder what you think -- of all these fields -- is the most important area of inquiry now, especially as it involves the beginning of life and the end of life issues, which are becoming more and more the subject of medical and scientific exploration, like studies of dementia diseases and so on?

Dyson: Yeah. Well, of course, that’s a huge field. And I might just concentrate on one issue, which is the choice of babies.
I mean, that’s a question which was first raised by Lee Silver. I don’t know if you’ve read his book called Remaking Eden[9]. He wrote that about ten years ago. He’s a professor of biology here in Princeton.

And I think it’s a very excellent book. Anyway, what he is pointing out there is the very real danger that biotechnology results in a new sort of racism, that people who can buy the best genes for their babies will have an enormous incentive to do so. If you can buy really good genes to make your baby a hot shot, it’s much cheaper than sending him to Harvard and it’s probably even more effective.

So there would be an enormous market for this kind of thing. And, in fact, that already exists, of course, the fertility clinic – fertility clinics is where this is really going on. And it’s the most profitable branch of medicine, even in the poor countries let alone in the rich countries. So we have to think about that very hard, what should be allowed and what should not be allowed.
Obviously, you’d like to be able to prevent preventable defects, kids who’ll have an extra chromosome or have gross defects of one kind or another, the hereditary diseases. You would like to allow every parent to make the choice not to have that baby with such defects and but then what about the other much more dubious choices we can make when you want to have a baby with blonde hair or a baby who will be a good basketball player or a baby who is a whiz at mathematics? Where do you draw the line?
If you don’t draw the line, you a have a free market in genes and that is roughly what we have today, and to follow that out you’ll very quickly get the division of the species into two non interbreeding parts. You’ll have people who are called “gen rich,” who have the best genes and who can afford to pay for them and the rest of humanity, which is poor and has to make do with natural genes, will be subject to many disadvantages and who’ll cease to breed with each other and so you very quickly find that we’re divided into two species, like in Wells’ book, The Time Machine where you have the Morlocks and the Eloi, with the Morlocks living underground and the Eloi on the surface. And it’s very easy to imagine that happening.

So that’s something we should really worry about seriously. I think the principle I would like to see established, of course, is that everybody should have equal rights to the best genes so that they should be available to everybody only when they’re available to everybody. They should not be available to only a few.
Schaller: Of course, that would require all sorts of legal changes to the present system.
Dyson: Yes, it would, and first of all, it means we have to have a national health service and reasonably equitable access to all kinds of medicine which we don’t yet have…But to me, that’s the central issue, establishing a principle of equal rights to all kinds of advantages that you might purchase under the present rules.
Schaller: That certainly ties in with your goal, which seems to prevail in all your work, and that is a sense of fairness in making resources available to the poor as well the affluent.
So perhaps we would have to trust the government to have some kind of regulation about genetic enhancement until we’re ready to say we’re going to find a means to be available to everybody?

Dyson: Yes…and I think you can go quite a long way by legislation. So I hope there will indeed be legislation to prevent this kind of gross differentiation of different kinds of humans. But it’s hard to do this, of course, without infringing on other people’s [freedoms] … those ones which you don’t want to legislate.
Schaller: Is it a concern to you that we have thousands of frozen embryos sitting around in storage?
Dyson: Yes, I think that is stupid. And it is one area where Britain has done much better. In British law, you can produce embryos for all sorts of reproductive purposes. But after ten years, they have to be destroyed. Nobody’s allowed to keep a live embryo for more than ten years. I think that’s very wise. So it means if you haven’t decided what to do in ten years, then it’s finished and you have to start fresh. This avoids the problem of children being born long after their parents are dead and orphan embryos where nobody knows who they belong to. This ten year rule really causes no hardship to anybody as far as I can see.

Schaller: For Americans, of course, that would present an interesting constitutional question. Our privacy laws would likely come into play, although the status of these frozen embryos – whether they’re independent life or whether they’re somebody’s property – is still very much in dispute. Our Supreme Court has not yet spoken about the status of an embryo. There are people who want a four cell embryo to be declared a human being. If that should happen, it would make it unconstitutional to destroy an embryo without due process.

And then there are a lot of other legal implications. Even if an embryo is not a human being, regulating the disposal of it would run up against Roe[10]…because that’s essentially interfering with a woman’s reproductive decision making.
Frozen embryos are often years later the subject of disputes in divorce cases, too.

Dyson: Yes. It seems that to set a ten year limit really does sort of disentangle a lot of these disputes that otherwise could go on forever. The only people who would lose by this would be the lawyers.

Schaller: Before I leave the subject of the reproductive area, you said something in a prior interview, that we’re leaving the “age of molecular biology,” the age of the molecule, and entering the “age of the organism: in biology. Could you explain to me what you mean by that?

Dyson: Yes. Well, it’s, of course, an oversimplification, but the fact is that until now, most of genetics has been based just on looking at the molecules. You can get a tremendous amount of information by looking at the molecules and seeing which genes a person has or a mouse or any other creature has. And that tells you a lot about what that creature will do and about how it can live.
But, in fact, we’re discovering more and more that the molecules are not the whole story. In fact, it is the system as a whole that determines behavior. And you can’t just deduce behavior from the molecules. I think that’s, roughly speaking, the way it sits…What they call “systems biology”[11] is now fashionable, which means trying to figure out the whole system as a process rather than just as a set of things.
Schaller: I was struck in reading one of your books that you expressed some concern that we might solve the problem of death, that solving this problem was not a good thing. And I couldn’t help but think about Jose Saramago’s novel, Death with Interruptions.

In that book, no one dies, even those who should, who’ve been in horrible accidents, they hang on. People who are nearly about to draw their last breath, suddenly revive and don’t. No one dies! And the story is essentially about the consequences of all that.
And yet, this is no idle fantasy. Those who are dedicated to attacking Alzheimer’s and dementia are, I think, on the brink of dramatically extending people’s lives. Pharmaceuticals that will enable people’s lives to be extended longer, and with quality, may really be just around the corner.

So we’ve got an aging population throughout the world, much of it in countries that are not doing anything in terms of research on dementia diseases. Four fifths of the research is being done in this country and we have a problem, but not as much as apparently China and India.
Is this research a good thing to be doing? What if this leads to extending the lives of millions of people in societies where that could end up creating a huge economic burden?

Dyson: I don’t have an answer to that, but I do hope it doesn’t happen while I’m still around. (Laughs) I had an invitation from the Cryonic Society, the people who put you in the deep freeze. They offered to put me in the deep freeze. Then when the time comes when the technology is so advanced they can put you back together and bring you back to life – well, I said, “No thanks.”
Schaller: (Laughs) I think Ted Williams, the baseball player. is frozen somewhere.

Dyson: Lots of people are. But somehow I would rather just be done with it.

Schaller: It’s funny. Over and over again in our conversation I’m hearing the same question emerge from between the lines: whether it is medical science or reproductive science or life extension science or whatever you might want to call it, the question is, should science be allowed to pursue new frontiers endlessly – no pun intended – or should we regulate it, perhaps at the expense of the freedom that scientists need?
Dyson: Yes, and that’s a big problem. If you ask me to answer it, I’m always on the side of freedom. I like to quote Milton on this point. Milton made this wonderful speech to parliament in I think it was 1644. It was about the freedom of the press. It is a classic statement of why you should want to have a free press. At that time, there was censorship. Cromwell was [soon to be] in charge of the country and the king was about to be dethroned and decapitated. But they still had censorship.[12] So Milton in his speech says that books are like armed men. They are dangerous to society. They are the cause of all our quarrels and they are undoubtedly doing tremendous harm. But what is the alterative?
If do not allow books to be published freely, you have censorship. And the people who are interested in being censors are not the kind of people you would like to have in charge of censoring books. He gives a beautiful description of what kind of people will be censors. They correspond precisely – I forget get the words – but they correspond precisely to the two kinds that we actually have seen in recent times, the communists who censor books on ideological grounds and the lobbyists and commercial people who censor books on commercial grounds.
And so, like Milton, you have to ask the question: if you try to limit science, who is actually going to take on the job of doing the limiting? These will not be the people with the best scientific brains…The point is that if you do not allow science freedom, it means essentially that you have a bunch of party hacks deciding what should be thought about and what should not be thought about. And it’s hard to imagine a worse way of running science than that.
Schaller: You’re quite right. One of the themes that you talk about and one of my favorite themes is the deterioration of our public forum into an adversarial environment that does not encourage free thought and free speech.

But I don’t yet want to leave our conversation about science and regulation. Most people acknowledge that there is not a uniform set of ethics. So if we keep government out of these sensitive questions and leave decisions about how to proceed with them to professional societies of, say, biologists, for example, how can we expect them to find a consensus about the ethical standards, one that could truly guide them?
Don’t we need something more by way of a consensus about an ethical code before we entrust decisions like these to such groups?

Dyson: I would say no. I mean, to me it’s essentially a question as to whether you stick to the principle of only convicting people of a crime after they committed the crime, as opposed to putting them in jail first before they commit the crime. That’s the real principle at stake.
We’ve heard a lot recently about a thing called the “precautionary principle,” which essentially says you should put them in jail first. If there is a public danger, you should make people legally responsible and put them out of the way before they can do you any harm.

But I think that is a very dangerous thing to get into. My preference – very strong preference – would be to stick to the traditional ethics. We won’t touch you before you’ve caused harm, but we will prosecute you to the full extent of the law if you do cause harm.

Schaller: I think you have actually used the words, “There shouldn’t be prior restraint,” which of course has been the standard in our first amendment jurisprudence for some time now.
I’ve gotten very interested in the relationship of neuroscience and law. And there’s a big project funded by the MacArthur Foundation right now that has given a lot of money to a lot of neuroscientists and lawyers and judges to study the impact of cognitive neuroscience on criminal law, in particular. And people all over the country are – lawyers are – introducing evidence, or trying to introduce evidence, of their clients’ state of mind beyond merely mental disease, but in terms of truth versus lying, in terms of criminal responsibility in criminal cases-- and it’s already coming into the case law.

The decade of the ‘90s was called, by some people, the “Age of the Brain.” And now we’re in the “Age of the Mind,” which I think has been officially declared so by some international body. 60 Minutes did a story about putting electrodes on a paralyzed person’s head so that their thoughts can be directed through a computer and from there transformed into speech…

Dyson: Yes, I saw that. It was very exciting.

Schaller: Then there’s a professor at Trinity College, where I teach, who has hooked people up to a scanner and is visualizing their brainwaves as music. He’s actually “producing” music by putting together all these brainwaves. So the exploration by cognitive neuroscientists plus neurologists and so on is really, really going full blast. I wonder if you think this is a very productive area to be working in, or if you think there’s some dangers here, too.

Dyson: Well, obviously, there are dangers and, obviously, it’s exciting, too. I’ve always emphasized that science is driven by tools much more than by ideas. The big advances generally come from new tools that are for more effective than anybody imagines they will be. And I think that’s particularly true about brains…we simply lack the tools to study in detail how brains are doing what they’re doing. But [we’re] coming much closer than we were before…

What strikes me about that problem is that if you look at the bandwidth, the bandwidth of the brain, you can calculate in a very rough way it has 100 billion neurons and nerve cells, and each of them runs at something of the order of 10 cycles a second. So it’s something like a trillion bandwidth if you take all the cells, each contributing 10 cycles, 10 actions per second.
And if you look at what you could actually achieve with a little microwave transmitter, if you had a little microwave radio in your brain, each microwave transmitter has something like a billion cycles bandwidth. So it has something like – that’s 100 times the bandwidth of a neuron so that in principle you could transmit from the inside of your head to the outside by radio with only something of the order of 10,000 transmitters.

That’s all you’d need. So in principle, if you could somehow find a way of inserting these transmitters into your head, you could transmit to the outside to receivers the complete story about what your brain is doing. That’s the kind of tools we will have. It won’t take very long.


Schaller: Well, I suppose people will think about the possible national security uses for this, too, subjecting people to this scrutiny against their will thereby raising privacy issues.

Dyson: Yes. I remember when we talked about this about ten years ago. The first rule is when you’re hooked up with these radio transmitters that every individual should have the power to switch the thing off.

Schaller: Right. I see that they’re actually implanting electrodes in the brains of monkeys and on the 60 Minutes piece there was also an image of a monkey who was able to control an artificial hand to feed itself merely by thinking about it.

Dyson: Yes, and, of course, then when you can do the things from the inside out, you can also do it from the outside in. So you could have direct communication between one brain and another which I think will be wonderful. So telepathy will really work!

Schaller: That’s right.

Dyson: It would be wonderful, really to know what other people are thinking. But, again, you have to have privacy. So you have to have the power over the switches.
Schaller: Human beings certainly have spent a lot of their time trying to figure out what other human beings are thinking or feeling…

Dyson: (Laughs)

Schaller: …and the idea that it could be somehow academic is rather startling in human history, right?

You grew up in England in the 1930s, a rather dark time throughout Europe and as a young man, during World War II, you were in the Royal Air Force, accumulating the data on bombing runs that sent many a pilot to his death, not to mention the destruction of German cities.
One might expect you to carry with you a certain cynicism about world affairs, yet you are quite the opposite, an optimist.

Dyson: We’d been prepared for this total disaster. We expected the war to be like World War I, only worse. And then suddenly to find we were in it and it actually wasn’t bad at all compared to what we expected.

Schaller: Because it was so much more of an air war than World War I?

Dyson: Well, it wasn’t even an air war. I mean, this bombing [the German bombing of London] was sort of trivial. My uncle was in charge of the hospitals in London, and he said the official plan was for half a million causalities in two weeks. It was what they expected. So the London hospitals were all emptied of patients just in the week before the war stated. They expected half a million causalities. And, of course, nothing like that ever happened. There were people killed, but there was never anything like these huge numbers of casualties.

Schaller: You’ve also written that the attacks upon civilians in World War II had the opposite effect than the bombers expected…

Dyson: …Yes…

Schaller: Rather than damaging the morale, it increased the morale.

Dyson: Oh, absolutely. That was obvious. According to my uncle, the official plan was to be prepared for – I think it was – half a million wounded who had to be taken care of in hospitals, and a quarter of a million insane, people who’s become crazy because of the terror. And, of course, that’s not what happened at all. People were less crazy when they were bombed than they had been before! They had fewer mental casualties!

Schaller: Why was that, do you think? Was it nationalism? Was it purpose, a sense of purpose to one’s life that you’re protecting it?

Dyson: Yes, being shot at has a very stimulating effect. There’s no doubt. And soldiers feel that, too. There are a lot of people for whom the war was a great lark, and people got to do all sorts of exciting things they normally wouldn’t do.

Schaller: Do you think in some respects, that this was a psychological defense against the horror of the war? Sort of, “Well, if we’ve got through it, let’s go through with a smile”?

Dyson: Yes, definitely. But, of course, there are lots of people who suffered, but a lot of people didn’t suffer at all. My family was one of those that we came out of it smiling because we had a good time, basically.

Schaller: I’m wondering, since I am familiar with your expressions of optimism from before the end of the 20th century, what do you think now? We’ve had 9/11. We’ve had the Iraq and Afghanistan conflicts dragging on. We’ve had an economic crisis that doesn’t seem to be going away. Are you still as optimistic now?

Dyson: Yes. I mean, of course, having gone through the ‘30s, none of this looks bad. We had terrible things to worry about then. I have the feeling all the things we worry about today are actually less scary. Not that they’re unimportant, but we can see that this economic depression is being handled more intelligently than it was in 1930. We don’t have Hitler to deal with just now. We’ve been doing much better in cleaning up pollution as well. If you go to Pittsburgh and Los Angeles you’ll find they’re not nearly as filthy as they were 50 years ago.

So we are making progress, although – well, there are big problems, obviously. But I’m optimistic both on the short run and in the long run. In the short run, I think the most important thing that is happening is that China and India are getting rich. To my mind, that’s an historical development that’s far more important than anything else that’s going on just now.
It is happening right now. It’s in the short run. We will have a world in which more than half the people are rich. Means you can really do something about social problems. You don’t have to live with poverty for the rest of the universe.

On the other hand, in the long run, of course, there are tremendous dangers and there will be – undoubtedly there will be terrible tragedies. But there, I see the salvation is in diversity that in the long run will be spread out over the university. It won’t stay on one planet. We’ll have not just one species of humans, but probably a million different species adapted to different places.

So there’s safety in numbers and we’ll have tragedies, but we’ll have successes as well as failures. That’s the way it has been in biology, or it is that evolution involves extinction. So in the end, we will go extinct, but our descendents will be doing great things and they’ll be different from us, but that doesn’t mean we’ve failed.

Schaller: I’ve got one sort of corollary to that question which is now related to what you were saying before. Are you optimistic about the ability of science to balance the risks against the benefits of all these new technological developments?

Dyson: Yes, I don’t say that we will avoid the risks or you don’t avoid risk. You just have to balance risks. And undoubtedly, we will choose wrongly on many occasions. All I’m saying, we have a good chance to break through to the stage of being spread over the universe and founders of civilizations which will be different from ours, and that’s to my mind, the success.

On the way, there will be great disasters, and it’s quite possible we’ll fail totally and leave it to the others to carry on, whoever they are.

[1] Dyson is speaking about the Asilomar Conference on Recombinant DNA that was held in Monterey, CA in 1975 and organized by Paul Berg, who would go on to win the 1980 Nobel Prize in Chemistry. At the conference, over a hundred biologists and other scientists worked with lawyers to draft voluntary guidelines limiting experimentation as a way to ensure the safety of recombinant DNA technology.
[2] The Italian physicist Enrico Fermi (1901-1964) helped develop the first nuclear reactor and won the Nobel Prize for physics in 1938. Niels Bohr (1885-1962) was a Danish physicist famous for his work in atomic structure and quantum mechanics. He received the Nobel Prize for physics in 1921.
[3] The 1939 meeting Dyson describes here was the Fifth Washington Conference on Theoretical Physics. It was not supposed to be about fission, but Niels Bohr arrived with news of fission’s discovery and from then forward that was all that anyone wanted to talk about. Yet the haphazard way that the topic arrived on the agenda made it unlikely that the ethical questions attached to atomic bombs were widely discussed. In “The Scientist as Rebel,” Dyson writes that by 1941 “the fear of Hitler was so pervasive that hardly a single physicist who was aware of the possibilities of nuclear weapons could resist [designing them]. The fear allowed scientists to design bombs with a clear conscience…It would have been impossible for the community of British and American physicists to say to the world in 1941, "Let Hitler have his nuclear bombs and do his worst with them. We refuse on ethical grounds to have anything to do with such weapons. It will be better for us in the long run to defeat him without using such weapons, even if it takes a little longer and costs us more lives."
[4] “I don’t think of myself predicting things,” Dyson said in a 2009 interview with the New York Times. “I’m expressing possibilities. Things that could happen. To a large extent it’s a question of how badly people want them to. The purpose of thinking about the future is not to predict it but to raise people’s hopes.”
[5] Uncle Tungsten: Memories of a Chemical Boyhood by Oliver Sacks 2001
[6] The chemistry set has indeed gone the way of the dinosaur, partly out of concerns for child safety, partly out of worries that the chemicals could be adjusted to be used in an explosive concoction by terrorists and partly out of the worry that they could be used to create methamphetamine.
[7] The Supreme Court’s first statement on this came back in 1980 with Diamond v. Chakrabarty, involving the patenting of a genetically-altered micro-organism that General Electric created to aid in breaking down oil spills.
[8] This is a constitutional issue. Article I, Section 8 of the United States gives Congress the power to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Legislation has been introduced to ban the patenting of the remaining 80 percent of the Human Genome. It remains in committee.
[9] Remaking Eden: Cloning and Beyond in a Brave New World by Lee M. Silver 1997
[10] Roe v, Wade, the 1973 Supreme Court decision that found that a right to privacy in the Constitution barred the states from regulating the practice of abortion.
[11] For a detailed explanation of “systems biology” go to the Institute for Systems Biology website here. http://www.systemsbiology.org/.
[12] The execution of King Charles I occurred in 1649, during the English Civil War. Oliver Cromwell ruled as Lord Protector of the Commonwealth of England Scotland and Ireland from 1653 to 1658. The monarchy then returned with Charles II as king.

Monday, October 12, 2009

California's Chief Justice laments the state's increasing reliance on voter initiatives:

"Chickens gained valuable rights in California on the same day that gay men and lesbians lost them..."

California Supreme Court Chief Justice Ronald George spoke to the American Academy of Arts and Sciences over the weekend and he had harsh words for his state's money-starved government which has forced the courts to close one day a week and judges to take a voluntary cut in pay. Chief Justice Ronald George, who was appointed by Republican Governor Pete Wilson, put the blame for what he called California's "dysfunctional" system on the powerful ballot initiative which in California allows voters to repeal acts passed by the legislature and propose and ratify constitutional amendments with a mere majority of votes. These unique procedures (which The Economist has described as the "crack cocaine of democracy") have led to social turmoil on many issues, most recently when the state's highest court, having decided in favor of gay marriage rights, was overruled by the electorate in the vote on Proposition 8. Chief Justice George wrote the majority opinion in the Court's recognition of gay marriage, yet he was also put in the position of ruling favorably on the legality of Prop 8 that reversed his decision. Even though the initiative reversed it, the Court, he argued, had no power to interrupt the initiative process. In his speech before the Academy this past Saturday, George noted ironically that last November the voters passed an initiative to regulate the confinement of fowl in coops at the same time that it passed Prop 8, effectively recognizing rights for chickens even as they rejected them for gays and lesbians.

TB

Saturday, October 10, 2009

When is a cross not a "cross"?

This week the Supreme Court heard oral argument in Salazar v. Buono, a case involving a challenge to a 75-year-old memorial to World War I soldiers in the Mojave National Preserve. Because the memorial consists of a simple white cross, Frank Buono, a former parks service employee who is also a practicing Roman Catholic, objected to what he saw as the mingling of the state with the promotion of a particular religion, an act that would be clearly in violation of the Establishment clause of the First Amendment.

But does a cross in a public place always connote a religious mingling? In one heated exchange between Justice Antonin Scalia and the attorney for Buono, Peter J. Eliasberg, the question was raised: does a cross inevitably symbolize Christianity or can it be seen as a symbol of death or mourning or perhaps even something else? Is it "our" way -- the viewer's way -- of seeing it that is determinative or is it the way in which those who erected it see it? If the cross symbolizes Christianity and nothing else should we reconsider all uses of it in public life, (because there are many)?


Here is the Supreme Court exchange:
Justice Antonin Scalia: "The cross doesn't honor non-Christians who fought in the war?"

Peter J. Eliasberg: "I believe that is actually correct"

Scalia: "Where does it say that?"

Eliasberg: "It doesn't say that but the cross is a predominant symbol of Christianity..."

Scalia: "It's erected as a war memorial. I assume it is erected in honor of all the war dead. The cross is the most common symbol of the resting place of the dead...What would you have them erect? Some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star?”

Eliasberg: "...the cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on the tombstone of a Jew."


Scalia: “I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead...I think that’s an outrageous conclusion.”

So, let's examine this idea in more detail

1. Can a cross be a secular symbol?

We are all familiar with the tiny white crosses that appear at the site of a roadside fatal accident. Should we conclude that a Christian died there? Or, perhaps more specifically, that this is a Christian blessing on the memory of those that died there? I have neither reaction. To me, it is both a memorial and a warning -- someone died here, therefore this is a sacred place; and someone died here so watch how you drive. But not everyone would agree with me and well, even I don't always agree with myself on this point. In a separate case heard in a district court in Utah in 2007, Judge David Sam concluded that such crosses are secular. That made sense to me until I saw the cross at issue. It is a 12-foot-high (see picture below) totem engraved with the name of the dead trooper. In other words, it looks more like a gravestone than a marker. The intention of the symbol may have been non-religious -- erected by the state of Utah it was meant to draw attention to the loss of life of those who make a particular sacrifice on our roadways -- and I seriously doubt that even the troopers' families see this symbol as evoking some Christian message or as a statement of their dead loved ones' faith. Still when I look at it, I don't see this one, at least, as secular at all. What do you think?

Last March, the Tenth Circuit heard an appeal of American Atheists v. Davenport, the case I cite above. No ruling has yet been issued.


Utah roadside cross


2. What about the Red Cross? What is the meaning of the cross in that context?

When established as an aid organization in the mid 19th century, the International Committee of the Red Cross claimed no affiliation with the Church or its symbolism. In fact the red cross logo is a reverse of the Swiss national flag -- the flag is a white cross on a red background while the Red Cross emblem is a red cross on a white background. That is purposeful -- the organization was begun by a Swiss national and the Swiss tradition of neutrality is important when providing aid in war-torn areas. Indeed, one can certainly make the case that the cross is ubiquitously secular when attached to the act of medical assistance (if you don't agree, then open your glove compartment, pull out your first-aid kid and tell me if you feel religiously moved or offended).
Nonetheless, bowing to concern for religious sensibilities around the world, the ICRC recently announced that it will change its rules to allow any of three symbols to denote its activities, the red cross, the red crescent (which it adopted at the time of World War I to gain acceptance in Muslim countries) ) and a new red crystal. Ironically, this is a case where concern over religious sensitivities has actually turned a secular symbol into a religious symbol. Indeed, confusion abounds. Recently, the FOX News host Bill O'Reilly falsely claimed that the Red Cross "historically ... adopted" its emblem "because of the Christian philosophy of giving alms and giving assistance to people in need."



3. Doesn't the American army provide a Distinguished Service Cross? Isn't that a religious symbol?

Adopted at the time of World War I, the DSC and equivalent Navy Cross are indeed in the form of a cross. The honor, which the commanding general of American forces GEN John J Pershing encouraged President Woodrow Wilson to adopt as a way of honoring service in much the same manner as European armies did, is in the long tradition of cross-shaped military honors denoting courage. However, these crosses commonly include other decorative elements that distinguish them from the Christian cross. The DSC, for instance, includes an eagle, a scroll, a wreath and an inscription that reads "For Valor."


4. What about national cemeteries like Arlington? Aren't there crosses there?

The Veterans of Foreign Wars and other veterans groups contend that if the Supreme Court rules against the cross, all war memorials with similar emblems will have to be moved or destroyed. They cite the Arlington National Cemetery's Argonne Cross Memorial and Canadian Cross of Sacrifice, as well as crosses on headstones elsewhere. Must these all be torn down as well? Peter Eliasberg, the ACLU attorney arguing this case for Buono, says no, referencing the context in which any memorial appears as significant to its message. There are plenty of competing religious symbols at Arlington, he says, such that one would not conclude that the government is in favor of Christianity.

5. What matters on this? The intentions of those who 75 years ago erected the Mojave cross or the reactions that it produces today?

In a recent exchange in the Los Angeles Times, University of California at Irvine Law School Dean (and PJP participant) Erwin Chemerinsky and Joseph Infranco, an attorney with the Alliance Defense Fund, discussed that matter as follows:

Erwin Chemerinsky: The Supreme Court has said that whether there is a symbolic endorsement of religion is determined from the perspective of the "reasonable observer."

A cross is a quintessential Christian symbol. It is a reminder of the death of Jesus Christ. Some Christians wear a cross around their necks, make a sign of the cross or hang crosses in their homes. None of these uses of the cross has anything to do with remembering the war dead. All are powerful evidence of the cross as a religious symbol.


Cross boarded up

A cross, of course, can be used for other purposes. The Ku Klux Klan uses it to communicate its message of bigotry. As you say, in some contexts it is used to identify those who died during war...

The cross at issue is bolted to a rock outcropping rising 15 to 20 feet above grade and is visible to vehicles on the adjacent road from 100 yards away. It is on federal land. A "reasonable observer" who sees such a cross is likely to think of Christianity, not about the war dead. In fact, every court to consider this display found it to be unconstitutional as an impermissible endorsement of religion; my hope is that the Supreme Court will do the same.

Joseph Infranco: "...your argument fails [in] your appeal to the "reasonable observer." The Supreme Court has consistently applied this standard to an observer who is fully informed on the background and history of a display, or else we judge by the least informed individual -- what the court has called a "heckler's veto." In this context, a reasonably informed observer familiar with the history would know that the Mojave Preserve cross has been a veterans' memorial since 1934. The standard you would like to apply is not that of a "reasonable" and informed man but rather an extraordinarily unreasonable individual with the thinnest of skins.

TB