Cosmic Justice

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Cosmic Justice

The following is from Thomas Sowell’s book “The Vision of the Anointed”, Chapter 8, pp. 221-235.

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Cosmic Justice

Seeking a range of justice reaching beyond the narrow confines of the traditional legal system, or the Constitution as historically written, takes many forms. For example, the Constitution’s plain and simple statement that no person “shall be compelled in any criminal case to be a witness against himself” has been stretched in legal theory to cover the following situation:

The police arrested Eugene Frazier for the robbery of Mikes’s Carry Out. After they advised him of his rights and let him read a copy of the Miranda warnings, Frazier signed a “Consent to Speak” form and told an officer that he understood his rights and did not want a lawyer. When an officer began questioning him about Mike’s Carry Out, Frazier interrupted and admitted to robbing High’s Market. The policeman started to transcribe Frazier’s remarks, but the defendant stopped him, saying, “Don’t write anything down. I will tell you about this but don’t write anything down.”

The officer put down the pad and continued listening in silence as Frazier went on about High’s robbery. After about five minutes of this Frazier confessed to the robbery of the Meridian Market. Two hours or so later Frazier ended the questioning, stating,”That’s it; that is all I am going to tell you.” When the police asked the defendant to write out his confession or sign a typed summary, Frazier refused. “No, I am not going to sign anything,” he said.

When Frazier’s conviction for the robberies he confessed to was appealed to the District of Columbia Court of Appeals, according to Chief Judge David Bazelon, “we were troubled” by the robber’s apparent misconception that his confession did not count if it were not written down. Therefore the burden of proof was on the government to show that Frazier “intelligently and knowingly” waived his constitutional right — and the case was sent back to the trial court. When the case came back again and a majority on the Circuit Court of Appeals voted to uphold the conviction, Judge Bazlon dissented on grounds that using the confession “denied people like Frazier genuinely equal treatment before the law” because Miranda warnings ought to be made “so clear that no one possessing even minimal intelligence could possibly misunderstand them.”

Although Judge Bazelon did not ultimately prevail in this particular case, it is revealing for the kind of reasoning which caused the Court of Appeals to send the case back to the trial court in the first place. At no point was the robber “compelled to be a witness against himself,” in the words of the Fifth Amendment. The whole issue arose because judges went beyond the Fifth Amendment, in pursuit of a more cosmic view of justice. Judge Bazelon stated the issue as so many others with the vision of the anointed have stated it: “Educated, respectable suspects ordinarily know of their rights to be silent and to retain a lawyer.” In short, the task of the courts was conceived to be not simply to treat everyone equally within the confines of the legal system but to offset preexisting inequalities. They were to pursue cosmic justice.

The cosmic perspective of course extends beyond the law. But in whatever field it appears, its adherents are quick to say that people did not really have a “free choice” in what they did. Thus to Noam Chomsky “freedom is illusion and mockery when conditions for the exercise of free choice do not exist” — and those conditions do not exist for “the person compelled to sell his labor power to survive.” i.e. for anyone who works for a living. Any circumstantial constraints or potential consequences hanging over people’s decisions makes their choices not “really” free.

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Constitutional right after constitutional right has been stretched far beyond anything encompassed by those rights when they were written — but only when the rights in question were consonant with the vision of the anointed. Where a constitutional right goes counter to, or inhibits, some aspect of that vision, that constitutional right is far more likely to be reduced or ignored. For example, the Fifth Amendment’s prohibition against anyone’s being “twice put in jeopardy” for “the same offense” has been judicially interpreted out of existence in the case of policemen acquitted in state court of criminally mistreating arrested suspects such as Rodney King and then retried in federal court for the same acts as civil offenses. Likewise, the Fifth Amendment’s protections of property rights have been routinely overridden by other considerations — almost any other consideration — in numerous cases. The selective indignation of the anointed is reflected in legal theory that is selectively cosmic.

Even if cosmic justice were sought equally and consistently for all, it would still conflict disastrously with the law of diminishing returns. The proliferation of new technicalities in the criminal law, each designed to eliminate residual biases and uncertainties surrounding arrest and trial, beyond some point risks far greater dangers to the public from criminals out on bail awaiting trial when there is an overcrowded court system taking longer and longer time to complete each trial, due to these new technicalities. A few years after the criminal justice revolution of the 1960s, a California appellate judge said:

It is with almost melancholy nostalgia that we recall how only five years ago it was possible to sustain a judgment of conviction entered in such a clear case of unquestionable guilt and to accomplish it without undue strain.

Judicially expanded “rights” to appeal state court cases to the federal courts led to an increase in such appeals for habeas corpus from fewer than a hundred in 1940 to more than 12,000 by 1970. Commenting on this explosive growth, a federal appeals court judge in New York noted the effects of the federal judiciary in second-guessing state appellate court decisions:

For all our work on thousands of state prisoner cases I have yet to hear of one where an innocent man had been convicted. The net result of our fruitless meddling in search of the non-existent needle in the ever-larger haystack has been a serious detriment to the administration of criminal justice in the states.

This is not to say that there are literally no innocent men ever convicted in a country with a quarter of a billion people. It is simply to raise the question whether extended federal second-guessing of state appellate courts will turn up many or any — and at what cost, not only in terms of money, but in terms of the increased number of innocent people sacrificed as victims of violent criminals walking the streets longer and longer, while legal processes grind on slowly and at seemingly interminable length. In short, while saving some innocent individuals from a false conviction is important, the question is whether it is more important than saving other equally innocent individuals from violence and death at the hands of criminals. Is saving one innocent defendant per decade worth sacrificing ten innocent murder victims? A hundred? A thousand? Once we realize that there are no solutions, but only trade-offs, we can no longer pursue cosmic justice, but make our choices among alternatives actually available — and these alternatives do not include guaranteeing that no harm can possibly befall any innocent individual. The only way to make sure that no innocent individual is ever falsely convicted is to do away with the criminal justice system and accept he horrors of anarchy. No one would advocate such a situation. That is simply the direction in which the legal system has drifted in pursuit of cosmic justice. Nowhere is the maxim that “the best is the enemy of the good.” more painfully demonstrated than when violent felonies have to be plea-bargained down to misdemeanors because of the prohibitive cost of trying more cases in a system bogged down in proliferating technicalities growing out of a quixotic quest for cosmic justice. This is part of what Judge Macklin Fleming has aptly called, in the title of his book, The Price of Perfect Justice.

Nothing is more of a search for cosmic justice than attempts to redress the wrongs of history, not simply for particular individuals wrongly convicted or victimized in some other way, but for whole categories of people whose ancestors’ misfortunes are to be redressed in the present generation. Given the innumerable factors influencing the current well-being of individuals and groups, the presumption of being able to disentangle all these factors and determine how much is due to the injustices of history is truly staggering.

Judicial activism

The general process of stretching and twisting the written law — and especially the Constitution — to reach results desired by judges has been called “judicial activism.” It is not only an example of the vision of the anointed in action, it is a crucial mechanism by which other aspects of that vision — the cosmic justice being sought through affirmative action, for example — has been imposed as “the law of the land” when elected legislators would be reluctant to go as far as unelected judges. Like most phrases, like all of language in fact, the term “judicial activism” is itself subject to varying interpretations and distortions. In the pattern of these interpretations and distortions, there is once more visible the vision of the anointed, not only in the way some litigants are treated as mascots or as targets, but also in the more general way that the exercise of power is shifted from the benighted to the anointed.

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Words like “due process,” “freedom of speech,” and other phrases from the Constitution might be interpreted in a sweeping variety of ways, if one relied on the dictionary meanings of those words and applied them according to one’s own sense of what is meant in practice. But these phrases existed and had a long history in the laws of England, even before the Constitution was written. Therefore, the historical meanings of such terms, in the legal context in which they were used, were much more limited than all the conceivable meanings that one might derive from a dictionary and apply according to one’s own vision. Those who wrote the American Constitution were of course familiar with such terms as “due process,” “freedom of speech”, etc., from English law and indicated no intention of giving them different meanings from what those terms already had.

Those who today advocate “judicial restraint” define it as judges interpreting laws, including the Constitution, according to the meanings that the words in these laws had when they were written.

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Judicial activists and the legal theorists who promote judicial activism seek to free judges’ decisions from the constraints of the Constitution as written and the limitations of legislation as passed. They seek judicial decisions which reach beyond these confines to encompass more sweeping moral principles.

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The issue as regards judicial activism in not whether there shall be “change” ---- since no one is against generic “change” — but who shall wield the enormous power of prescribing the particular nature and direction of change and by whose authorization? More specifically, shall it be done openly by officials assigned this task by the Constitution and responsible to the voters, or shall it be done furtively by unelected judges using verbal sleight-of-hand to attribute to the Constitution things that the Constitution never said? The issue is preemption of power, not “change”.

What the rule of law means, among other things, is that certain questions have been settled, at least as far as the law is concerned. Therefore the citizens of the country can rely on “the law of the land” in their plans and actions, until such time as that law is explicitly changed by new statutes or constitutional amendments. The occasions of such change provide advance warning that we are all now living under different rules. Judicial activism makes all this radically different. Individuals and organizations discover only after the fact that they are violating “evolving standards” — such discoveries sometimes costing millions of dollars in damage awards. More important, loose interpretations of words in contracts, statutes, and the Constitution itself empower judges to reopen questions that were settled when these contracts, statutes, and the Constitution were written — imposing judges’ notions of what should have been done on what the parties concerned had decided to do.

Much criticism of judicial activists’ decisions has centered on the merits or demerits of the particular policies imposed by such decisions. But, however much those policies may deserve criticism, the most fundamental damage done is not in these particular policies but in undermining the very concept and purpose of law itself. Freewheeling judges make the whole framework of law unreliable. One obvious consequence is that this facilitates legalized extortion when those with “deep pockets” — which are often only an accumulation from much shallower pockets of individual taxpayers or stockholders — are afraid to go to court to defend themselves against even the most frivolous or far-fetched claims for damages, for fear of what some judge or jury’s arbitrary notions or emotions might be on a given day. But forfeiting the benefits of “a government of laws and not of men” goes far beyond that. It goes to the heart of a free, self-governing society, which is being superseded by ex post facto laws deriving not from legislation but from judicial fiats.

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When those with the vision of the anointed line up solidly behind judicial activism, as they do, it is not because of a chance coincidence that they all happen to prefer one legal theory to another. Judicial activism is a mechanism through which that vision can be imposed on a public which does not support it, without having to go through elected officials who would not dare to vote for many of the features of that vision, including an expansion of criminals’ rights, affirmative action quotas, and other controversial policies on which the pubic and the anointed are lined up on opposite sides.

Some of the statements in Supreme Court opinions themselves betray the extent to which judicial activism is responsive to the vision of the anointed, using that vision as a basis for rulings which lack a basis in the words of the Constitution. For example, in overturning the death penalty in the case of a murderer who committed his crime at age 15, Justice John Paul Stevens cited “evolving standards of decency” which made the Eighth Amendment’s “cruel and unusual punishment” prohibition applicable. Although claiming that such an execution would be “abhorrent to the conscience of the community,” Justice Stevens’ specific references were to “views expressed by respected professional organizations,” to “other nations that share our Anglo-Saxon heritage,” and to “leading members of the Western European community” — in short, to the anointed.

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18 Nov 2023