Book on Republicanism
Copyright Ó 2003, by Alec Rawls
The Direct Protection scheme and the Multiple Verdicts scheme come from a book I am writing about republicanism. There has always been a great conflict at the heart of American republicanism. Protection of the tree of liberty requires powerful and effective government (as Hamilton and the Federalists urged), yet powerful government threatens liberty (as Jefferson and the Republicans warned). When the tree is attacked (i.e. in times of war) protection for the tree has always taken priority over protection for the fruits of the tree, as is only logical. In the war on terrorism, minor such steps have been taken with the Patriot and Homeland Security acts, but as advancing technology brings weapons of mass destruction with in the reach of ever smaller groups, much more extreme steps will be needed, and because technology will only continue to advance, empowerment of law enforcement can never be reversed. In earlier wars, limitations on liberty necessary to preserve the tree of liberty could be restored at war's end, but this war has no end. How then can we maintain our liberty?
There is no essential conflict between protection of the tree of liberty and protection of its fruits. The existing conflict is an artifact of the peculiar way that we have framed our protection of liberty. Our protections are based on the Rights of Englishmen, which emerged from a struggle for power between the English king, his nobles and his other subjects. In a struggle for power, one strives to wrest whatever advances one's own power or decreases the power of one's opponent. But in America we are citizens, not subjects. We the people are sovereign. We need not be at war with ourselves. For one, instead of protecting liberty indirectly, by placing restrictions on law enforcement, we can protect it directly, by limiting what can be criminalized, yielding better protection for liberty while unleashing crime control.
The direct protection of liberty
Our existing system of liberty is as primitive as blood letting. Instead of delineating what activities people should be allowed to engage in without fear of prosecution, we protect liberty indirectly, by putting severe limits on what the police and the courts can do to enforce the laws. It's like getting a lion instead of a dog to protect your house. The lion will eat your kids, so you have to keep him chained in the cellar, while the robber (or the terrorist) cuts your throat.
A dog, in contrast, is like a white blood cell. It only attacks what it should attack, which let's us give it free reign. To trade in the lion for a dog, all we need to do is be able to articulate the full ideal of protected liberty and protect it directly in the Constitution, so that what ought to be permitted can no longer be criminalized. Law enforcement will then no longer present a danger to what we mean to protect, allowing it to be let off its chain. Many restrictions on law enforcement could simply be eliminated.
Give that dog DNA fingerprinting for a nose, fifty kinds of data processing for eyes, give it every kind of tooth imaginable, we're talking about superdog, cloned. That's what it's going to take to root out every last terrorist cell, which is what we are going to need to be able to do as advancing technology brings weapons of mass destruction within the grasp of smaller and smaller groups and eventually even to individuals. Common crime? It's toast. And the price tag for this physical hygiene? Vastly increased protection for individual liberty. In contrast to the hit and miss of our present system of indirect protection, direct protection of liberty will be comprehensive and systematic. Liberty is further protected, of course, by the reduction of crime. Liberty is better protected both from infringement by government and from private crime.
Multiple verdicts of guilt
Protecting liberty directly is half of what we can do to improve criminal justice. There is an equally crime crushing and liberty protecting reform available for our system of criminal trial. By only asking jurors to render a verdict on a single standard of guilt, our current system of trial lumps the certainly guilty together with the almost certainly guilty, who include an admixture of innocents. This admixture of innocents greatly limits the severity with which we can deal with convicts and it greatly increases the harm done by the severity that we do impart. We could do much better by simply distinguishing further. All we need to do is complement our current less than certainty standard of guilt with a true certainty standard. Then we can focus our mercy on the possibly innocent (lowering punishments for that group) and deal pure untempered justice to those who are found certainly guilty.
Such a system will generate tremendous leverage over the guilty, who will always face the prospect that proof of guilty will emerge. If the penalty for pleading innocent and being found certainly guilty is double the punishment for pleading guilty, few of the guilty accused will risk it, opting instead to walk themselves straight to jail, with no bargaining down of charges. Criminals will be put away much more reliably than at present; backlogs for trial will disappear; court costs will tumble; yet the innocent will stand completely clear of this heavy artillery. With sufficient oversight to insure that no possibility of innocence remains in certainty verdict cases, the innocent will still sometimes be found less than certainly guilty (as they are now) but they will virtually never be found certainly guilty.
The price for this tremendous leverage over the guilty? Much less harm to the innocent, who right now suffer the severest penalties with alarming regularity. Just as with the direct protection scheme, conflict is eliminated, allowing each disiderata (liberty and crime control in the direct protection scheme, justice and mercy in the multiple verdicts scheme) to be pursued unobstructedly.
Now notice how these two schemes for multiplying the effectiveness of law enforcement combine together. When the system of multiple verdicts increases leverage over the guilty, the force that gets multiplied by this leverage is the weight of evidence, and the prospect that evidence will emerge. Each bit of evidence, and the prospect that it may secure proof of certain guilt, threatens to take the rest of the accused person's life, if he is guilty and pleads innocent. This is the perfect complement for superdog. The direct protection of liberty, by removing restrictions on law enforcement, multiplies up the power of evidence gathering. Superdog's multiplied up law enforcement capabilities (as compared to chained up lion) gets multiplied up again by the system of multiple verdicts.
These two schemes for multiplying up our power to crush crime don't join additively, they join multiplicatively, like packing in nitro with a supercharger. Serious horsepower baby. We get a "Borg nano-probe" level immune system, and at the same time get much more protection both for liberty and the innocent. These are huge gains.
Except for my metaphors, none of this is half-baked. To see the fully baked potatoes just click on any Direct Protection or Multiple Verdicts link. These advances can be instituted NOW. And that's just the immune system. Many other important constitutional advances also are available, all springing from the same research method and all serving the same goal. The research method is to combine economics (the theory of means) with moral theory (in particular, the Millian theory of ends) to create a comprehensive analysis of value (what might be called moral science). The goal is to advance our nation's founding ideal: republicanism, or liberty under law.
How can economics—a behavioral science—be described as a theory of means? Means only give rise to behavior when put together with a set of ends to be pursued. If ends were left out completely, there could be no economics. Still, ends can be left out almost completely, by making use of a simple trick. It is possible to use all-purpose means, like money and leisure, as proxies for ultimate ends, without having to say anything about ultimate ends themselves. In particular, market behavior can largely be described in terms of the pursuit of all purpose means. That is what markets and the division of labor are about after all. We pursue many of our ultimate ends indirectly, by producing things that are of value to others and then trading. Thus the subject matter of economics narrowly defined—participation in markets—can largely be studied without needing to develop a theory of ends, and this is what has been done.
But understanding markets is only a small part of what the economic theory of means is needed for. There are many spheres where ultimate ends are pursued directly rather than through the proximate goal of all purpose means. Most importantly, the proper sphere of government is delimited as just those areas where markets are not able to efficiently coordinate private interests. Here the economic theory of means is more needed than anywhere else precisely because we cannot turn the job over to markets. We must figure out for ourselves how to efficiently pursue ends in these areas. But until we make progress in articulating ends, especially public ends, the theory of means cannot be applied. Economic science sits idly by its most important task because we have failed to put it together with the other half of the analysis of value: the theory of ends.
One reason for avoiding the theory of ends is because an adequate such theory has not seemed to be available, but actually, a compelling theory of ends has been available. John Stuart Mill blazed the trail 150 years ago, only to be systematically misunderstood ever since. Just as we can follow evidence about the nature of things, and make progress in our understanding of the natural world, so too can we follow evidence about the value of things, and make progress in the discovery and pursuit of value. This progress leads to some perfectly rigorous conclusions about value and priority. In particular, people who follow and husband evidence of value will necessarily come to value anyone's "direct" interests (their liberty or security interests) above everyone's "indirect" (or vicarious) interests, which in turn implies Mill's principle of liberty (that the only civilized grounds for forcing anyone to do or forbear is to prevent harm to others).
With Mill's principle in hand as a public objective, we can then apply the economic theory of means to figure out how to pursue this objective efficiently. The result is the above described scheme for protecting liberty directly. The key to being able move to a system of direct protection for liberty is being able to articulate the full ideal of protected liberty, and deriving Mill's principle of liberty from the theory of ends achieves this. Not only is Mill's principle set on a secure foundation, but this foundation allows the principle to be expanded and clarified, to the point where it is able to articulate the full ideal of protected liberty. Efficient means are then straight-forward. By protecting liberty directly instead of indirectly we can eliminate many restrictions on law enforcement while greatly increasing protection for liberty.
The multiple verdicts scheme is in the same vein. By distinguishing better between what we mean to protect (the innocent) and what we don't mean to protect (the guilty) we can deliver much more justice to both. Technically, the efficiency in the multiple verdicts scheme is of a different type than in the direct protection scheme. It isn't that, prior to the multiple verdicts scheme, we don't know that we want to punish the guilty and free the innocent. Rather, the scheme allows us to see better where these valued ends lie. This isn't quite the same as progress in understanding the value of different ends, but it has very much the same effect.
In other areas too, the seeming conflict between liberty on the one hand and powerful effective government on the other disappears when ends and means are properly sorted out. This full story will be contained in my book on republicanism, the rest of the introduction to which I will post later. First things first. Under attack, let's get our immune system in order now.
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