getting what you ask for

More familiar instances of toxic masculinity concern the wanton infliction of violence, especially the sexual kind, especially upon women and girls. Yet on the other side of the wall was, it seems, another sort of toxic masculinity — a platoon of armed and trained men who had evidently come to rely so heavily on guns and armor in lieu of courage and strength that they found themselves bereft of the latter when outdone in the former. Instead they were beset by cowardice, evidently as convinced as the shooter was that the gun really does make the man, and that outgunned is thus as good as outmanned.

In its own imagination, Texas is the land of men who would never admit defeat at all, much less surrender instantly with decent odds and innocent lives at stake: Surely its police ought to feel the highest and noblest sort of calling to valor, the type of vocation that surpasses profession and speaks to a person’s mission in life. Or perhaps those things, too, all the militarism and bravado, the heady authority and free respect, the unearned certainty in one’s own capacities provoked by so many Punisher bumper stickers and decals, had the same corrupting effect as the guns and body armor. Eventually, one either develops their own virtues or finds they’ve developed vices instead.

— Elizabeth Bruenig. The only thing worse, for a community, than what Radley Balko has famously called the “warrior cop” is a bunch of people who are cosplaying warrior cops.

Balko has often over the years pointed to the recruitment strategies of police departments, which commonly feature images of men in body armor riding in military assault vehicles. When your recruiting strategy targets people who get excited by that kind of thing, you get what you ask for — instead of, for instance, finding people who take satisfaction in serving and protecting the community. But even if you get emotionally immature recruits, you can train them in better ways. Alas, as Bruenig suggests, at places like Uvalde the emphasis seems to be on exacerbating their recruits’ vices rather than cultivating their virtues.

You have to hope and pray that the shame of Uvalde will cause police departments around the country to reflect on the kind of men they’re hiring — and the kind of men they’re making. But the rot is so deep that it’s hard to be hopeful.


UPDATE: Arthur Rizer: “So much of this turns out to be LARPing: half-trained, half-formed kids playing soldier in America’s streets and schools. Many of the thousands of SWAT-team members in this country don’t have the training and expertise to respond like they’re SEAL Team 6. It’s time to stop pretending that they do.”

Injured Parties

I have an essay in the new Hedgehog Review — behind a paywall, but shouldn’t you subscribe? Yes indeed you should. The essay is called “Injured Parties,” and it begins thus:

In 1923, the American movie star Dorothy Davenport lost her husband, the actor and director Wallace Reid, to an early death resulting from complications of morphine addiction. After the tragedy, Davenport took up the job — an unusual one for a woman in Hollywood in that era — of film producer. Starting with Human Wreckage, a movie about the dangers of drug addiction that appeared just months after Reid’s death, Mrs. Wallace Reid, as she now called herself, oversaw a series of films on pressing social issues. For instance, the third one she produced, and which she personally introduced in a prologue, The Red Kimono (1925), portrays the dark personal and social consequences of prostitution.

All of Davenport’s moral-crusading films were popular, but also controversial: Some were banned by the British Board of Film Censors and by the guardians of public morals in many American cities. The Red Kimono had other problems, though, problems related to one Gabrielle Darley. Darley was a young woman who in the second decade of the twentieth century had worked as a prostitute in Arizona for a pimp named Leonard Tropp. She fell in love with him and they moved to Los Angeles, where she gave him money to buy a wedding ring — for herself, she thought, but in fact Tropp planned to marry another woman. When Darley discovered this, she shot Tropp dead. In 1918, she was put on trial for murder, but had the great good fortune of being represented by an exceptionally eloquent defense attorney named Earl Rogers — a close friend of William Randolph Hearst — who presented her as having been, before meeting Tropp, “as pure as the snow atop Mount Wilson.” The jury couldn’t get enough of this kind of thing and enthusiastically acquitted Darley.

One of the journalists covering the trial was Rogers’s daughter, Adela Rogers St. Johns, who was already well on her way to earning her unofficial title as “World’s Greatest Girl Reporter.” (For many years she worked for Hearst newspapers, and may have reached the height of her fame in her reporting on the 1935 trial of Bruno Richard Hauptmann for kidnapping and murdering the young son of Charles and Anne Morrow Lindbergh.) She wrote a short story, based on the trial, called “The Red Kimono.” It caught the attention of Dorothy Davenport, who immediately commissioned a screenplay and started filming. The name she chose for the film’s protagonist? Gabrielle Darley. 

I describe Darley’s claim to having been defamed by the film — to being injured reputationally — and the ultimate decision of the Supreme Court of California in her favor. 

From there I go on to explore the meaning of defamation and how it has changed over time, with a particular focus on the early modern period, during which, as I learned from reading that wonderful scholar Debora Shuger, defamation was very differently understood. I indulge my suspicion that we — immured in a social-media environment for which defamation is more or less the coin of the realm — might have a few things to learn from that era, and also from Erving Goffman. Yeah, I know it sounds weird, but trust me, it all holds together. I think. Ultimately I am trying to imagine charity as both a legal and a social concept. The point of the essay is not to settle any current issues but rather, by looking into the past, to discover alternative and superior moral vocabularies with which to address our disagreements. 

Subscribe and read, please! 

One thing I don’t understand (and I’ve read a good deal of legal commentary on this issue) about United States v. Texas: The suit says that the Defendant is “the State of Texas” and that “The State of Texas includes all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8,” but what does “private parties who would bring suit” mean? As far as I can tell the United States is suing unspecified people for some envisioned future action. How is that possible, unless the government has a Precog Division I don’t know about? How is is possible for any of us who live in Texas to know whether we are among the Defendants in the suit? 

no feelings may be hurt

Suppose, I asked the students, an observant Jew has a florist shop. One day, a customer, who is also Jewish, comes to the shop to say she’s getting married and would like the florist to do the wedding. “That’s wonderful,” the florist says. “Where will you get married?” The customer replies that the wedding will be at a local nondenominational church, because her fiancé is Christian, and she, the customer, isn’t very observant. The florist thinks about it and then says, “I’m so sorry, but I can’t do your wedding. It’s nothing personal; I’m sure your fiancé is a fine person, as are you. It’s just that as an observant Jew I don’t approve of interfaith weddings. For our community to survive, we must avoid intermarriage and assimilation. Please understand. There are many other florists who can do your wedding. I’ll even suggest some. But I can’t, in good conscience, participate, myself.” What result?

In posing this hypothetical, I was not so interested in how the case would come out under current law. Rather, in good law-school fashion, I was trying to show the students that these are complicated questions and that they need to consider both sides. Much to my surprise, the students were uniformly unsympathetic to the florist. There should be no right to decline services in this situation, they told me. The florist was not acting reasonably and in good faith. […]

Conservatives often assume that controversies like Masterpiece Cakeshop reflect changing sexual norms and an intolerance of resistance. That’s correct, in part; one definitely senses a “you-lost-get-over-it” sentiment on the other side. And yet, the students’ reaction to my hypothetical case suggests that something else is going on as well, that the dispute is not about sexuality as such. Rather, it’s about not allowing people to draw moral distinctions that exclude others and hurt their feelings, no matter what the justification. That’s what the florist was doing in my hypothetical case—and that, I think, was what bothered the students.

Mark Movsesian, St. John’s Law School, New York. A fascinating case study for people who tend to think these disputes are all about the sexual revolution. As it turns out, and as I have sometimes suggested, demand for the affirmation of sexual choices may simply be an example of a greater demand, that for the affirmation of all the self’s choices. The real principles here are (a) I am my own and (b) the purpose of society is to empower and affirm my claim that I am my own.

Trump and Constitutional Law

This is a great idea for a podcast: What the Trump presidency, with its manifold eccentricities, can teach us about Constitutional law. After all, on almost a daily basis the words and actions of the President raise some question about the powers and limits of the office.

The first episode takes off from Trump’s comment about Judge James Robart,  who blocked his first attempt at an executive order banning travel to the U.S. from six mostly-Muslim countries: Trump tweeted that Robart is a “so-called judge.” According to Elizabeth Joh, the con-law professor who co-hosts the show with Roman Mars, that tweet raises the question of judicial legitimacy, which leads her to describe the famous Supreme Court case Youngstown Sheet & Tube Co. v. Sawyer, in which the Court ruled that President Truman did not have the authority to commandeer the nation’s steel mills to serve the needs of the military during the Korean conflict. For Joh, the really important point here is that Truman, though angered by the ruling, did not question it — he acknowledged and deferred to the legitimacy of SCOTUS.

But that’s where the podcast ends, which I think is just the wrong place. The vital question that arises is: What if Truman hadn’t so deferred? What if he had said “I do too have this authority, and I’m sending in my people to take over and run the steel mills”? People talk loosely about Trump’s actions producing a “Constitutional crisis,” but that would be a Constitutional crisis. For law enforcement officials, and maybe even the Army, would have to decide whether to back the Court or the President.

Given the current President’s history of demanding that he get his way in all things, and his oft-expressed frustration (even in these first few months of his presidency) at having his will thwarted, something like that could eventually happen: that is, the Executive branch simply refusing to acknowledge the legitimacy of one of the other branches and doing what it wants to do regardless of protests. So what, within the boundaries of Constitutional law, would happen then? I’d like to see the podcast play out some of those scenarios.

judging judges

It has long been frustrating to me that the only criterion by which Americans — almost without exception — evaluate judges is: Did he or she make decisions that produce results I’d like to see? Virtually no one asks whether the judge has rightly interpreted existing law, which is of course what the judge is formally required to do. Americans — again, almost without exception — want judges to be politicians and advocates. The idea that a judge should strive to interpret existing law regardless of whether it does or doesn’t promote politically desirable ends never crosses anyone’s mind, and if by some strange chance it did, the person whose mind was so crossed would reject the proposal indignantly. Americans in this respect resemble toddlers and their own President: they evaluate everything in terms of whether it helps or hinders them in getting what they want.

This devaluation of interpretation amounts to a dismissal of the task of understanding: everything that matters is already understood, so the person who would strive to understand is not only useless, but an impediment to the realization of my political vision. To the partisan, the absence of partisanship is always a sin, and perhaps the gravest of sins.

empathy and leniency

Judge Aaron Persky empathized with Brock Allen Turner and could easily imagine what it would be like to lose sports fame (as Persky enjoyed), to lose a Stanford education (as Persky enjoyed), to lose the sort of easy success and high regard that a young, reasonably affluent Stanford graduate (like Persky was) can expect as a matter of right.  Judge Persky could easily imagine how dramatically different a state prison is from Stanford frat parties, and how calamitous was Turner’s fall.  That’s how Judge Persky convinced himself to hand such a ludicrously light sentence for such a grotesque violation of another human being.

But most people fed into the criminal justice system aren’t champion athletes with Stanford scholarships.  Most aren’t even high school graduates.  Most are people who have lived lives that are alien and inscrutable to someone successful enough to become a judge.  Judges might be able to empathize with having to quit their beloved college, but how many can empathize with a defendant who lost a minimum-wage job because they couldn’t make bail?  How many can empathize with someone more likely to sleep by a dumpster than exit a frat party next to one?  They can conceive of the humiliation of being on the sex offender registry after getting into an elite university, but can they conceive of the humiliation of being stopped, frisked, detained, and beaten with impunity because of the color of their skin?  Experience teaches that the answer is usually no.

This means that the system is generally friendly to defendants who look like Brock Allen Turner and generally indifferent or cruel to people who don’t look like him.  No high school dropout who rapes an unconscious girl behind a dumpster is getting six months in jail and a solicitous speech from the likes of Judge Persky.  Judges take their youth as a sign that they are “superpredators,” not as grounds for leniency.  If you tell a judge that they aren’t a danger to others, the judge will peer over his or her glasses and remark that people who rape unconscious girls in the dirt are self-evidently dangerous, and don’t be ridiculous.  Judges don’t think that a good state prison stretch will have too severe an impact – after all, what are they missing, really?

Ken White