Mascots of the anointed

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The following excerpts are from Chapter 6, p.143 - 182, of The Vision of the Anointed by Thomas Sowell. I think they give enormous insight on how America got to where it is today.

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The ideals of “a government of laws and not of men” and “equal protection under the law” are at the heart of American constitutional law and the democratic process. Yet, increasingly, government has come to be seen as a way of benefitting particular groups adopted as mascots, often without much regard for what that does to other groups or the integrity of the system as a whole. Groups disliked, distrusted, or feared by the general public are particularly eligible to become mascots, who symbolize the superior wisdom and virtue of the anointed.

Even for judges, where impartiality has been the treasured ideal for centuries, this arbitrary singling out of beneficiaries has been held up as a new ideal. During Judge David H. Souter’s confirmation hearings to become a Supreme Court justice, a member of the Senate Judiciary Committee urged him to be a “champion” of “the less fortunate,” declaring this to be “the role assigned to the Court in our system.”

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Those who urge such championing or taking sides are suggesting something for which even an umpire would be considered disgraced beyond redemption. An umpire cannot become a champion of pitchers, except at the expense of batters and vice versa and in either case at the expense of he integrity of the game. Nevertheless, the view has grown and, in many cases, prevailed in practice. Among the mascots chosen by the anointed have been vagrants, criminals, and carriers of contagious diseases.

Vagrants or “the Homeless”

A textbook example of someone with anti-social behavior being turned into a mascot by a judge with the vision of the anointed was Richard F. Kreimer, a vagrant who made a nuisance of himself in a New Jersey public library. During the late 1980s, a number of homeless people began coming into this library in the small town of Morristown, New Jersey, disturbing both the other library users and the staff by their behavior and their body odors. Richard F. Kreimer in particular often exhibited offensive and disruptive behavior, including talking loudly to himself and to others and, on at least one occasion, was so belligerent toward a librarian as to cause her to call the police. Some librarians resigned rather than put up with it.

Theft of property, smoking, and using drugs and alcohol were just some of the homeless people’s activities complained of by the library officials. On May 16, 1989, a notice was posted, limiting the use of the library to persons “engaged in normal activities associated with the use of the library” and specifically banning people who ”annoy others” in various ways and whose “personal hygiene” was not acceptable. This policy was challenged in court by Kreimer, with the aid of the American Civil Liberties Union and others who literally made this a federal case — one costing the town more than a quarter of a million dollars in legal fees.

Federal District Court Judge H. Lee Sarokin ruled in favor of Kreimer. Declaring the library to be a “public forum,” defined as “an available public space where citizens communicate their ideas through the spoken word,” Judge Sarokin declared it covered by the First Amendment. It was a place where people have a “right to receive ideas.” The library’s “drastic exclusion” denies “access” to reading materials for “the poor and homeless who are without the funds to purchase even a single newspaper.” Judge declared the library policy “vague” and brushed aside the claim that Kreimer and others were annoying other people. “Conduct that annoys some people does not annoy others.” Moreover, a hygiene test has “a disparate impact on the poor.” In short, the library rules “unreasonably frustrate, infringe, or obstruct the expressional and associational rights of individuals,” according to Judge Sarokin.

In a classical expression of the anointed, Judge Sarokin lectured the community on its attitude toward the homeless: “If we wish to shield our eyes and noses from the homeless, we should revoke their condition, not their library cards.” In other words it is society’s fault that people end up like Richard Kreimer — and it is within society’s capability to change their conditions. In realty, Kreimer was born into a middle-class family and inherited with his brother an estate worth $340,000. What society was supposed to do to prevent Kreimer — an able-bodied white male — from becoming a bum was unspecified. Yet other people’s legal rights were to be disregarded or held hostage pending the carrying out of Judge Sarokin’s social vision.

Just as Kreimer was treated as a mascot, so other library users were treated as expendable, and the law-abiding and taxpaying citizens of the town were treated as targets. In addition to having to pay more than a quarter of a million dollars defending against a lawsuit, the town ultimately had to settle out of court, paying Kreimer $150,000, in order to prevent its policemen’s homes from being in jeopardy of being taken away from them to satisfy an adverse court judgment.

Here, as elsewhere, the anointed show what Jean-Francois Revel has called “a pitiless ferocity toward some” and “a boundless indulgence toward others.” Both the particular mascots chosen and the particular targets chosen serve the same purpose — to demonstrate the superiority of the anointed over the benighted.

Criminal justice

For at least 200 years, those with the vison of the anointed have been claiming that criminals have been misunderstood by the public and mistreated by the law. A product of social circumstances and societal failures, criminals should not be punished but rehabilitated, according to this view, found in such eighteenth-century figures as Condorcet and Godwin. In addition to questioning the morality of punishing people for circumstances beyond their control, the anointed tend to believe that punishment does not work but that rehabilitation does. The belief is part of a wider pattern among the anointed of emphasizing dispositions rather than incentives, whether discussing criminals, international diplomacy, or child rearing.

The conclusions of those with this vision are as logical as the opposite conclusions of those with the tragic vision. It is the imperviousness of the anointed to any argument or evidence, and their readiness to dismiss and condemn those with different views, which have made criminals mascots symbolizing the superiority of the anointed. An episode in San Jose, California, illustrates this mind-set. The federally funded Alternatives to Incarceration program sent selected imprisoned criminals to colleges to complete their sentences there instead of behind bars. After a series of rapes at San Jose State University, the city’s police chief discovered that imprisoned rapists had been released to that institution and that “convicted felons routinely stalked women in dark streets in the vicinity of the university in downtown San Jose.” What is revealing is the response when he expressed his concern to the director of this particular project:

When I complained, the project director said the “clients” were screened and that California had declared it an exemplary program. Actually, we later found out that the program screened applicants only on the basis of academic scores. Federal rules prevented consideration of their criminal records. And California had declared the program exemplary only because it submitted quarterly reports on time.

When my complaints about the program became public, I was censured by the students and faculty and advised by my superiors in city hall to go easy. After all, this was an exemplary, federally funded program to reduce recidivism.

Note that it was not considered sufficient for the anointed to disagree with the police chief’s assessment of the danger; it was necessary to condemn him for expressing such concerns. Moreover, the intentions of the program — to reduce recidivism — were considered weighty in themselves. Then, a few months later, came the tragic denouement when the police “arrested an honor student in the program for brutally torturing, raping, and murdering two women near the university.” He was “articulate and the project had often used him to show how wonderful it was that bright people could get a college education instead of languishing in prison.” Nor was this an isolated failure. During the entire decade of this program, not one “client” actually graduated from the university but a number were arrested for crimes against women.

The point here is not simply that some people were mistaken in their beliefs and hopes for this particular program, but that they barricaded themselves against all beliefs to the contrary and morally condemned those who expressed such beliefs. It is this pattern which has been all too characteristic of the anointed, on this and other issues, over a long span of time. Moreover, such patterns can be found among the anointed from the local level to the Supreme Court of the United States.

Most of the Supreme Court’s landmark decisions expanding — or creating — “rights” for criminals occurred during the 1960s, but another landmark decision of national importance originated earlier in the Circuit Court of Appeals for the District of Columbia, a court aptly characterized as having “a more-liberal-than-thou posture” that made it “the darling of the Washington Post.” This was the judge David L. Bazelon’s 1954 decision expanding the “insanity” defense in criminal law, an expansion which reverberated far beyond the legal jurisdiction of this particular court, becoming by imitation in other jurisdictions the law of the land. It was thus not simply the view of one judge or of one court. It was an expression of the vision of the anointed.

Before Judge Bazelon’s decision, American courts tended to follow the same legal principle used in British law in the nineteenth-century McNaughten case:

... the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as to not know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.

This was not good enough for Chief Judge Bazelon. In the Durham decision of 1954, he repudiated the McNaughten test by shifting the burden of proof to the prosecution, when the defense claimed that the defendant was not guilty by reason of insanity, and by allowing much more expansive psychiatric speculations to be introduced as evidence in the trial. In his decision in the Durham case, overturning the burglary conviction of a man with a long history of crimes — including writing bad checks, which hardly suggests a lack of reasoning ability — Judge Bazelon spoke of “the science of psychiatry” and “the science of psychology” as reasons for letting speculations from these fields deflect the criminal punishments that would otherwise fall on the defendant. No longer did the defendant have to be insane. It was enough that the accused “suffered form a diseased or defective mental condition.”

The nebulous notion of “defective mental condition” evolved in later cases into saying that someone “suffering from an abnormal condition of mind” was not responsible for his crime. To follow this logic, the more horrible the crime, the further the criminal departed from civilized norms and by definition the more “abnormal” his mental condition. By such reasoning, every violation of law should be excused. But of course nothing as straightforward s this was proposed. Instead, the speculations of psychiatrists and psychologists were accepted as “science” and criminals acquitted whenever these “scientists” raised sufficient doubts in the minds of jurors. It was not necessary to convince the jury that the defendant was insane or even had an abnormal mental condition, because the burden of proof was on the prosecution and insanity was no longer necessary. Congressional legislation in 1984 shifted the burden of proof back to defense attorneys who claimed that their clients were suffering from mental defects, and judicial interpretations are still evolving. But the decisive turn in criminal justice was abandoning a straightforward standard for nebulous speculations, the later requiring vastly more knowledge than anyone possesses, as so often happens in the vision of the anointed.

Despite much talk about “science” in discussions of psychiatric and psychological speculations — usually speculations about people who were never patients of those making sweeping statements about their mental condition as of the time of a crime that the speculators never witnessed — the key scientific procedure of empirical verification has not been merely lacking but totally ignored. A psychiatrist or psychologist may testify hundreds of times as an “expert witness” in criminal cases without once being challenged as to the consequences of his previous testimony that turned criminals loose into the community. His “expertise” is never put to the crucial test of a record as to how often he has been wrong — and at what cost in money, violence, and lies. As in so many other areas, the word “science” is used as a substitute for logic and evidence. In short, the essence of science is ignored in favor of its appearance.

Many have claimed that the “insanity” defense is not a serious problem because it is used in only a fraction of criminal cases, and used successfully in a smaller fraction. This understates its full impact as another factor delaying trials and providing grounds for appeals after conviction in an already overburdened court system. Moreover, the demoralization of the public, as it sees horrible crimes go unpunished and violent criminals turned loose again in their midst because of psychiatrist’s speculations, is not a small consideration. Riots broke out in San Francisco after a multiple murderer was let off with a lenient sentence because of speculation that his eating “Twinkies” might have made him more excitable. But, whether or not public outrage takes this form or some other forms, there are numerous signs of a loss of confidence in the courts and in the ability of the society to protect the public from criminals and other antisocial individuals who have become mascots of judges.

It is not only psychiatric testimony which tempts judges into decisions which presuppose far more knowledge than anyone has ever possessed. Ordinary petty criminals have learned how to manipulate the arrogant gullibility of judges. A series in the Washington Post in 1994 included this vignette of one of many court appearances by a woman with a long history of petty crimes:

Ross Lee had chosen her clothes carefully when she appeared two months earlier before Commissioner John Treanor on Nov. 13, 1990. She wanted to look as poor as possible to draw his sympathy.

She had worn an ill-fitting winter coat, gray wool overalls and a white wool hat pulled back to show her graying hair. She had removed her upper dental plate, giving her a toothless look when she smiled. “My homey look,” she called it. No lipstick. No earrings. No nothing!”

The net result of all this was a suspended sentence for a woman with a lifelong history of shoplifting (which she had taught her children) and drug addiction, the mother of children and grandchildren who had been in prison. The fundamental problem was not that the judge was taken in but that he imagined himself capable of knowing enough to disregard the penalties of the law and play Solomon or social worker instead. Although the reporter who covered the story was well aware of how phoney the act was — the woman asked him, right in the courtroom, “Was I good?” and was pleased when he said “Yes” — nevertheless the series blamed “society.” The first story in the series said of Rosa Lee: “Her life spans a half-century of hardship in blighted neighborhoods not far from the majestic buildings where policy-makers have largely failed in periodic efforts to break the cycle of poverty that has trapped her and so many other Americans for so long.”

Criminals are the most obvious, and the most resented, of those for whose benefit judges have stretched the law, in an attempt to achieve the cosmic justice of compensation for preexisting disadvantages. Chief Justice Bazelon, who played such a key role in the evolution of criminal law, was quite clear that the kind of legal principles he advocated were designed to “compensate for the disparities that produce unequal access to constitutional rights” among people “stunted by many circumstances, including the accident of birth” and to “give the stunted a box to stand on to reach our own eye level.” Convinced that “poverty is the root cause of crime,” Judge Bazelon expressed a widespread view of the 1960s, and a long-standing assumption of the anointed, that sufficient knowledge already existed, when he said:

The circumstances that lead some of these people to crime are no mystery. They are born into families struggling to survive — if they have families at all. They are raised in deteriorating, overcrowded housing. They lack adequate nutrition and health care. They are subjected to prejudice and educated in unresponsive schools. They are denied the sense of order, purpose, and self-esteem that makes law-abiding citizens. With nothing to preserve and nothing to lose, they turn to crime for economic survival, a sense of excitement and accomplishment, and an outlet for frustration, desperation, and rage.

That most people born into poverty did not become criminals, and that people born in more fortunate circumstances sometimes did, was acknowledged by Judge Bazelon, but this acknowledgment made no real difference in his conclusions or his judicial decisions. Correlation was causation.

Such reasoning might make sense if human beings were born into the world already civilized, so that some special explanation was necessary as to why they later engaged in barbaric behavior. But when everyone is born into the world today as uncivilized as the barbarians of ancient times, there is nothing mysterious about the later behavior of those whose parents did not bother to civilize them. Nor is it surprising that such irresponsible parents have not developed, either in themselves or in their children, the skills, attitudes, and discipline necessary to rise out of poverty. At the very least, the direction of causation cannot automatically be assumed to be from poverty to crime, especially after decades in which massive government programs to alleviate poverty have seen crime rising to new heights.

The isolated views of one judge would hardly be worth noticing, except that (1) such views were echoed throughout the media, which lionized Judge Bazelon, (2) the U.S. Supreme Court made similar views “the law of the land” in its decisions during the 1960s and 1970s, and (3) both federal and state courts across the country went on similar judicial adventures, interpreting laws to mean whatever they wished them to mean, typically in consonance with the vision of the anointed. Perhaps the most dramatic examples came from the California Supreme Court when Rose Bird was its chief justice.

In more than 60 consecutive death penalty cases — every such case to reach the California Supreme Court during her tenure — Chief Justice Bird voted to overturn the penalty, on grounds that the defendant had not had a fair trial as required by the Constitution. Either there was not a single judge in the entire state of California who ever gave a murderer a fair trial or else Rose Bird was simply using this claim as a pretense to enforce her own personal opposition to the death penalty. Since the state constitution explicitly stated that trial verdicts were not to be overturned by appellate courts unless the legal errors in those trials resulted in a real “miscarriage of justice,” Chief Justice Bird’s votes implied that these 60 consecutive trials not only contained technical legal error, but also that these errors were of such magnitude and nature that they created a miscarriage of justice in every case. The initial implausibility of this happening 60 consecutive times becomes even more incredible afer a look at the particulars of some of these cases.

In one of the cases that came before the Bird court, a man went to a store not only to commit an armed robbery but also with a list of people who worked at the store whom he planned to kill. He proceeded methodically down his list, murdering the workers with shotgun blasts and pausing to reload, so that premeditation was not an issue. Yet, because the trial judge’s instructions to the jury failed to mention premeditation as a requirement for a first-degree murder conviction, Chief Justice Bird voted to overturn the death penalty. Death penalties in other premeditated murder trials were likewise reversed by the California Supreme Court on the same grounds. Because some judges may not have wanted to insult the jurors’ intelligence by discussing premeditation in cases where it was so blatantly obvious, this technicality was taken as a sufficient reason for declaring that the murder was a victim of a miscarriage of justice.

Another murderer had his death penalty overturned on grounds that his attorney had failed to make an insanity defense. The California Supreme Court did not claim that the murderer was in fact insane, but simply second-guessed the defense attorney’s strategy and pronounced it inadequate, thereby making this a de facto denial of the defendant’s right to counsel. Here again, we see the insanity defense having an impact well beyond the cases in which it is attempted or sustained. Similar ingenuity was used by Rose Bird to vote against every death penalty that came before her.

Again, the idiosyncracies of one judge or even one court are significant primarily because they are indicative of the zeitgeist among elites. When Rose Bird’s reelection was challenged in 1986, much of the national media, as well as the California media, sprang to her defense. New York Times columnist Tom Wicker defended her invariable vote to overturn death penalties by claiming that “in every single instance of a death-penalty reversal, the Bird court has found a constitutional infirmity” — as if the court could possibly have claimed anything else, regardless of how tenuous that claim was. The death penalty issues were an “emotional issue,” according to Wicker, using the standard term for any principle of concern to the benighted, while Bird’s position on the side of the anointed was a matter of principle — “the rule of law,” no less. The Los Angeles Times likewise claimed hat the Bird court “reversed death sentences because of errors they found in the records in the courts below” — that they were trying to “enforce justice even when it is unpopular.”A New York Times editorial claimed that Rose Bird’s opponents were “politicizing the judiciary” — not that it was she who had turned the court into an enforcer of her own ideology, rather than the law. Columnist Anthony Lewis depicted the campaign against Bird as an attack on “an independent judiciary.” Others in the media chimed in with support for Chief Justice Bird, usually not mentioning the number of consecutive reversals or the egregious specifics of the court’s straining after technicalities, in defiance of the constitutional requirement that a substantive miscarriage of justice was necessary for a reversal.

That Rose Bird was a symbol of the anointed was further demonstrated in the judicial elections of 1986. Although no California Supreme Court justice had ever lost an election before, Rose Bird was defeated at the polls in 56 out of 58 counties, finding such electoral support as she had concentrated in bastions of the anointed. She carried San Francisco County with 65 percent of the vote and Alameda County — home of the University of California at Berkeley — with 51 percent. The closest she came to a majority elsewhere was 45 percent of the vote in Santa Cruz County, home of the “politically correct” University of California at Santa Cruz, and the same percentage of the vote in Marin County, an affluent and trendy suburb of San Francisco. In character to the end, in her last week as chief justice, Rose Bird voted in favor of paroling a cop-killer featured in the book and movie The Onion Field.

Those for whose benefit the law is stretched by judges — the mascots — include not only criminals but also a wide range of groups looked on with disfavor by others, whether for valid or invalid reasons. That such people would be adopted as mascots by those with the prevailing vision is completely consistent with the role in which the anointed cast themselves, as being nobler and wiser than others. Anyone can condemn criminals, so there is no distinction in it. But to come up with rationales, rights, and “solutions” expressing solicitude for criminals is far more consistent with being one of the anointed with special insights. For similar reasons all sorts of other groups are depicted as victims whom the anointed are to rescue from the benighted.

Disease Carriers

A classic example of the rights of particular mascot groups overriding the rights of others are cases involving people with contagious diseases. The landmark Supreme Court case in this area involved an elementary school teacher with active tuberculosis, who was fired because of fears that she might infect the children she taught. The teacher sued, charging discrimination against the handicapped, in violation of the Rehabilitation Act of 1973. A majority of the U. S. Supreme Court ruled that it was indeed discrimination because tuberculosis could be considered a handicap.

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The bending of the law for mascots has as its counterpoint the presumptive guilt of target groups, such as employers, who would “seize upon” excuses to fire people. The fate of innocent third parties, such as children, carries little weight when taking sides with mascots against targets.

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While public health officials have for decades traced the sources of infectious diseases to those individuals who were carrying such diseases and spreading them, tracing AIDS to its sources has been declared a violation of federal laws protecting the “handicapped.” A jail inmate with AIDS who was kept separated from other prisoners was awarded $155,000 in damages. A three-judge panel ruled that the Department of Health and Human Services could cut off $107 million in federal funds to a medical center which merely restricted the duties of a pharmacist with AIDS. In courtrooms as elsewhere, AIDS carriers have become mascots of the anointed.

No group has so polarized the anointed from the benighted as people infected with the AIDS virus. In keeping with their having performed this vital role, AIDS carriers are treated as the most sacred of the mascots.

In contrast to the identification, and sometimes even quarantine, of people infected with other deadly and contagious diseases, AIDS carriers have been guaranteed anonymity by both law and policy as they mingle with unsuspecting members of the general public. From the beginning, various medical and other public officials have been preoccupied with reassuring the public on how they cannot get AIDS. As late as 1983, people were being reassured that their chances of catching AIDS from transfusions of untested blood were “extremely remote.” Secretary of Health and Human Services Margaret Heckler went on nationwide television on July 3, 1983, to “assure the American people that the blood supply is 100% safe. But, just one year later, the Centers for Disease Control began reporting dozens of cases of people who caught AIDS from blood transfusions and just two years after that the AIDS deaths from blood transfusions were in the thousands. More than half of the nation’s 20,000 hemophiliacs were infected with the AIDS virus as a result of the numerous blood transfusions they require. The long incubation period proved to be like a time bomb.

The problem was not simply with what medical authorities did not know at the time but with what they presumed to know and to proclaim to the benighted — to those who, in Secretary Heckler’s words, had “irrational fears” and “unwarranted panic”. Looking back on this period, years later, a feature story in U.S. News and World Report noted:

Americans have long believed the blood supply to be safer than it is. In a 1993 joint statement, for example, the Red Cross and two trade groups representing other blood banks — the American Association of Blood Banks and the Council of Community Blood Centers — put the risk of getting AIDS from a blood transfusion at about 1 in a million. In fact it was at least 1 in 660 — and up to 1 in 25 in high-exposure cities like San Francisco.

Mistaken beliefs about the safety of untested blood did not originate with the public but with the anointed elites. This was only one of the many ways in which these elites pooh-poohed the dangers from AIDS. San Francisco nurses who used masks and gloves while handling AIDS patients were punished by hospital authorities for doing so in 1985, though such precautions later became accepted and then officially recommended in federal guidelines. It was at one time triumphantly proclaimed that no health-care worker had ever contacted AIDS from patients, but by September 1985 there were the first of many cases of nurses, lab workers, and others who caught the disease from AIDS patients and by 1991 there were cases of patients who caught AIDS from a dentist. As Newsweek noted: “Just a year ago most authorities considered it virtually impossible for an AIDS-infected physician or dentist to pass the virus on to patients.

Precautions to protect the public from AIDS carriers have repeatedly been backed into only afer new revelations devastated previous reassurances. The fundamental issue in all this is not why medical authorities were repeatedly mistaken but why this disease was approached in a way directly the opposite of the way other contagious and potentially fatal diseases have been approached. Instead of erring on the side of caution in defense of the public, as with previous deadly and infectious diseases, “responsible” officials approached the spread of AIDS by making the protection of the AIDS carrier from the public paramount. One political reason has been fear of offending the organized, zealous, single-issue homosexual organizations and their allies in the media, in the American Civil Liberties Union, and in other liberal bastions. But this only raises the further question as to why the interests of carriers of a deadly, incurable, and contagious disease should be regarded in such circles as preemptive over the rights of millions of other people. The answer to this more fundamental question seems to be that AIDS carriers meet the criteria for a mascot group sharply differentiating the anointed from the benighted.

TARGETS OF THE ANOINTED

Just as the logic of their vision guides the anointed in their choices of mascots, so it guides their selections of targets. The prime requisite for both mascots and targets is that they must distinguish the anointed from the benighted. Just as groups disdained by others become eligible to be mascots of the anointed, so groups respected by others are eligible to become targets. These include business people, physicians, and other professionals, members of religious communities, policemen, and others whose social roles or financial success engender respect or influence in the society at large. Just as the law is stretched and strained for the benefit of mascots, so it is stretched and strained to the detriment of targets.

Business and the Professions

No part of the law has been stretched and strained beyond recognition more often than the laws allowing businesses and the medical profession to be sued. It was always possible to sue people for damages caused by their negligence. What happened after the vision of the anointed swept through the courts during the 1960s was that people could now be sued successfully whether they were negligent or not — and in some cases, without even being proved to have anything to do with whatever harm occurred. But this never happened to those in groups who were mascots of the anointed. It happened to those in groups who were targets.

.... examples cited.

In many cases, what was crucial was whether cases were allowed to go to trial, not what the outcome of the trial was. The vast penumbra of uncertainty around tort liability trials in the wake of the judicial revolution of the 1960s and 1970s, which jettisoned centuries-old laws and principles, leaving judges and juries to roam free and indulge their own inclinations, made it prudent for defendants to settle out of court, even if they had done nothing wrong. The uncertainty of outcomes was epitomized in two cases in which crane operators drove into high-tension electric power lines, leading to lawsuits against the manufacturer of the crane for failure to warn them — a claim dismissed without a trial in one state, on grounds that the danger was too obvious to require warning, and yet in another state leading to a damage award of more than $12 million against the manufacturer. In other words, there was no longer law in the real sense of the word, but only unpredictable edicts emanating from courtrooms.

Nothing could so plainly show the role of the consumer as mascot and the producer as target as cases in which the user’s own dangerous behavior was the obvious cause of the harm for which he was being allowed to sue. Someone who sprayed a plainly marked flammable liquid into a candle was nevertheless allowed to sue the manufacturer for the burns that resulted. A woman who cradled a cup of coffee between her legs while seated in a moving car was allowed to sue McDonald’s, who sold her the coffee, when the coffee spilled and scalded her. She was awarded $2.9 million in damages.

Virtually all aspects of medicine became targets for escalating lawsuits. By 1985, one-fourth of all obstetricians-gynecologists in the country has been sued. Psychiatrists were sued for things their patients did, months afer their last visit. Pharmaceutical companies were sued for the side effects of drugs which had been approved by the Food and Drug Administration and which no one even alleged that the companies had produced or distributed in any wrongful manner. With pharmaceutical companies as with manufacturers of automobiles, tools, and equipment, when no negligence could be found, the product’s “design” was blamed — as if there were any way to design anything without negative side effects or potential for negative consequences if misused.

In treating businesses and professions as targets, the courts were often also exhibiting another aspect of the vison of the anointed — presupposing far more knowledge and control than anyone ever possessed. In holding defendants responsible for harmful consequences which they did not cause, courts often relied on the new legal doctrine that these defendants could and should prevent “reasonably foreseeable” harm, even if the harm resulted from someone else’s reckless or irresponsible use of the product or service. In short, the targets had vast responsibilities placed on them, while the mascots need not exercise even common sense. Furthermore, the sheer luck of life — “the thousand natural shocks that flesh is heir to,” as Hamlet said — disappeared as a factor. If something went wrong, someone was to blame, preferably someone with a “deep pocket” from which to pay damages. Often these deep pockets were nothing more than an aggregation of much smaller pockets, whether of taxpayers or of stockholders.

The presumption of available “solutions” was particularly devastating in medical fields where only painful and inescapable trad-offs have been common as regards vaccines, medicines, and medical procedures in general. Yet courts have permitted hundreds of lawsuits against whooping cough vaccine manufactures, for example, leading some pharmaceutical houses to stop producing it.

Families

The family is inherently an obstacle to schemes for central control of social processes. Therefore the anointed necessarily find themselves repeatedly on a collision course with the family. It is not a matter of any subjective animus on their part against families. The anointed may in fact be willing to shower government largess upon families, as they do on other social entities. But the preservation of the family as an autonomous decision-making unit is incompatible with the third-party decision making that is at the heart of the vision of the anointed.

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Among the family decisions which various political crusades are attempting to transfer to third parties are:

1. At what age, and in what manner, and with what moral principles sex is to be taught to children.

2. What general moral and social philosophy shall be taught to children.

3. Whether adoption should include a pledge of confidentiality to the biological mother who gave up the child for adoption.

4. Whether a child of another race may be adopted.

5. Whether a child shall have an abortion.

6. Whether an agreement can be made for surrogate motherhood.

7. Whether couples who did not choose to take on the obligations of marriage shall have those obligations retrospectively imposed on one of them via “palimony” suits by the other after the dissolution of the relationship.

The notion that third parties can make such personal decisions is not a peculiarity of our times or of American society. Friedrich Engles’ first draft of the Communist Manifesto included a deliberate undermining of family bonds as part of the Marxian political agenda, though Marx himself was politically astute enough too leave that out of the final version. Nor has this war against the autonomy of the family been confined to extremists. The modern Swedish welfare state has made it illegal for parents to spank their own children and various so-called “children’s advocates” in the United States have urged third party intervention in families under the rubric of “children’s rights.” — obviously to be enforced by adults, and more particularly by adult lawyers for such organizations as the Children’s Defense Fund, National Child Rights Alliance, and the like. This is not neglect and abuse — which are already illegal — but about giving third parties a say in family decisions. In New Zealand, a whole campaign of scare advertisements during the 1980s proclaimed the claim that one of eight fathers sexually abused their own daughters, when in fact research showed that not even one out of a hundred did so.

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The mind-set of those who view traditional families as failed institutions needing the superior wisdom of the anointed permeates laws and policies on child abuse. Children may be removed from the parental home on the basis of anonymous accusations alone — even when both the children and the parents deny the accusations. Moreover, the protections afforded criminals are not afforded parents:

Somewhere between 2 million and 3 million allegations of child abuse and neglect tie up the nation’s hot lines every year. Of that number 60 percent are deemed false and dropped. Of the remaining 40 percent that lead to investigations, about half (involving nearly 700,000 families) eventually are dismissed, but not before children have been strip-searched, interrogated by a stream of social workers, police officers, and prosecutors, psychologically tested and sometimes placed in foster care. Such actions usually occur without search warrants, parental consent, court hearings or official charges — and often solely on the basis of the anonymous telephone call.

A Virginia couple, for example, came home one Friday afternoon to find their 10-year-old son missing and a note ordering them to appear in court the next Monday morning. Fearing that their son had been kidnapped, they phoned the police, only to be told that he had been taken into custody by the Department of Social Services. The son himself spent the weekend in a foster home, forbidden to phone his parents. All this was triggered by a phone call by a neighbor who did not think that a 10-year-old boy should have been left alone at home during the day while his parents worked. The problem, however, was not the busybody neighbor but the fact that the law was armed with extraordinary powers — far beyond what could be exercised against criminals, who are mascots of the anointed, while families are targets.

Within the general framework of such extraordinary powers, zealots ready to believe the worst of fathers can plant ideas in young children’s minds, with disastrous consequences. When an 8-year-old girl in San Diego was sexually assaulted and stated that it was done by a man who climbed into he bedroom window, the social workers dismissed her story, named her father as the primary suspect, and removed the child from her home. After more than a year in foster custody and in therapy, the girl changed her story and named her father as the attacker. Yet the DNA evidence indicated that it could not possibly have been her father and in fact the DNA matched that of a convicted child molester who entered the bedroom window of another child in the same neighborhood within days of the assault on this girl. But once the authorities had committed themselves to a different scenario, and had taken drastic action in response to their belief, admitting to being wrong was virtually out of the question. Only after a grand jury investigation was the child returned to her parents — after more than a year away and the father had paid out more than a quarter of a million dollars in attorney’s fees during the legal struggle to regain custody of his daughter. Moreover, the grand jury noted in its report that this was not an isolated situation, either in San Diego or in the country at large, that social workers in such situations had “nearly unlimited power” and that the social welfare agency involved seemed “incapable of policing itself.” Studies on the suggestibility of small children indicate that they can be induced to change their stories, even in a laboratory setting, much less after they find themselves inexplicably snatched from their homes, helpless in the hands of strangers, and held incommunicado from their parents for months while various authorities obviously want them to make accusations.

Some have defended the unusual powers granted to police and social welfare agencies in child abuse cases by saying that if just one child’s life is saved, it is worth it. However, many of the anointed take no such position when an animal on the endangered species list kills a child. On the contrary, the first response is usually to denounce public “hysteria” over the killing and to oppose letting people shoot dangerous animals on that list when they enter human communities.

Religion

Some of the most adventurous interpretations of the Constitution have grown out of the simple words of the first Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Basing itself ostensibly on these words, the Supreme Court has banned prayer in public schools and repeatedly engaged in hand-wringing over nativity scenes in public places at Christmastime. Yet none of these things was meant by the phrase “an establishment of religion,” which was not some esoteric expression from a philosophy seminar but something very ordinary and personally experienced by those who wrote the Constitution. The Church of England was “established” as the official church of the country, a church supported by taxes collected even from those who belonged to other churches, and a church whose members had legal privileges denied to other churches. The First Amendment forbade Congress to create any such institution in the United States.

Just as plain and straightforward laws have been stretched and twisted for the benefit of various mascots, so this plain and straightforward provision of the Constitution has been stretched and twisted to target religion. Such phrases as a “wall of separation” between church and state and government “neutrality” toward religion have become staples of constitutional interpretation by the Supreme Court, though neither phrase appears anywhere in the Constitution. In a 1998 case, for example, Justice Harry Blackman’s majority opinion declared, “the constitution mandates that the government remain secular, rather than affiliate itself with religious beliefs or institutions” — all this because both a nativity scene contributed by local Catholics and a menorah contributed by a local Jewish group were displayed during the Christmas holidays on public property in Pittsburgh.

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The American Civil Liberties Union has been prominent among those objecting to Christmas holiday displays on public property, leading to cases in which Christmas trees are deemed constitutional if there is not too much religious symbolism involved. Justice Blackmun, for example, argued that “government may celebrate Christmas as a secular holiday,” so that when the city’s tree stands alone in front of the City-County Building, it is not considered an endorsement of Christian faith and when there is a menorah nearby the “city’s overall display must be understood as conveying the city’s secular recognition of different traditions for celebrating the winter-holiday season.”

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It is not merely in the legal arena but also in education and the media that words are strained and twisted in discussions of religious issues. As public schools have increasingly become militant dispensers of indoctrination with fashionable avant-garde attitudes, various individuals and groups have objected. These objections are then declared to be attempts by “the religious right” to “force their beliefs on other people.”

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14 Nov 2023