Beware the people who moralize about great issues; moralizing is easier than facing hard facts.
—John Corry1
It is not only the consummated policies of the anointed which reflect their vision. So do their crusades still in progress. The pattern of thinking involved in this vision shows up as strongly in trivial crusades against particular kinds of maps as in crusades over something as deadly serious as AIDS. The function of the vision in enhancing the self-esteem of the anointed is also revealed in the particular groups chosen as targets and in the particular beneficiary groups chosen to symbolize their moral stances. The symbolic function of these latter groups is much like that of team mascots. A mascot’s own well-being is not so crucial as its role in enabling others to “make a statement.” Many social groups are treated as the human mascots of the anointed, whether or not that ultimately works out to the benefit of those groups themselves. After a general survey of the kinds of crusades to which the anointed are attracted and the kinds of reasoning used in them, the discussion will turn to the targets and the mascots of the anointed.
Few issues are so perfectly adapted to the vision of the anointed—and to politics—as issues involving safety. Such issues lend themselves to the rhetoric of “solutions” rather than trade-offs, and to categorical statements, such as: “Not one human life should be sacrificed for the sake of profits,” thereby establishing the moral superiority of the anointed over the benighted. On the surface, where most political battles are fought, those opposed to policies or legislation for greater safety seem to have an impossible task. It is only when these issues are examined more closely, within a framework of constrained options, that the heedless proliferation of safety rules can be seen as counterproductive—which is to say, dangerous. People are dying from such “safety.”
Perhaps the most obvious examples are the Food and Drug Administration safety rules which make it illegal for Americans to use various life-saving pharmaceutical drugs which have been in use in Europe for years. Americans die while waiting for these drugs to pass elaborate “safety” requirements. The underlying problem with this approach is that it seeks a categorical “solution” in some arbitrarily specified level of drug safety, rather than a trade-off between the dangers of the drug and the dangers of not using the drug. Clearly, with no safety requirements at all, needless deaths from untested drugs would be numerous and unconscionable. But, beyond some point, the residual increment of safety from more years of testing declines to the point where it is outweighed by the lives that continue to be lost through delay. Safety can be fatal.
The same reasoning applies to pesticides, vaccines, and other substances which have both positive and negative effects on human health. The banning of DDT was followed by a resurgence of malaria, a fatal disease to many. Even a small country like Ceylon had 2.8 million people infected with malaria in 1948, before DDT was used. This fell to less than a hundred cases by 1962, after large-scale DDT programs were instituted—and rose again to 2.5 million cases by 1969 after DDT was banned.2 Although the dangers of DDT have been exaggerated—even professional sprayers, with many times the concentration of DDT in their bodies as the average person, show no medical ill effects—nevertheless, sufficiently massive doses can be harmful.3 If DDT were 100 percent safe, it would be the only 100 percent safe thing on the planet. The relevant question is the trade-off between the toxic effects of DDT and the effects caused by insect-borne diseases. A very similar question must be asked about vaccines. More than 3 million Americans are vaccinated against whooping cough annually, preventing an estimated 300,000 cases of the disease, including an estimated 400 fatal cases. Yet this same vaccine is also responsible for an estimated 30 cases of brain damage annually.4 Clearly there is no “solution” in such situations but only a trade-off. It would be obscene to speak of solutions to the parents of brain-damaged children. This is the tragedy of the human condition in its starkest form.
The trade-off approach, however, means that there is no special role for the anointed to play, unless they choose to seize upon one particular kind of safety and make it preemptive over other kinds of safety.
Perhaps nothing so captures the mind-set of the anointed as a tempest in a teapot created over a common map of the world used for centuries and called the Mercator Projection. This map has been objected to, not by professional map-makers or for scientific reasons, but by liberal-left organizations and individuals for ideological reasons. Because of the methods by which it is produced, a Mercator map shows areas near the equator relatively smaller than similar-sized areas nearer the poles. Thus, Greenland appears larger than Australia on a Mercator Projection, even though Australia is in fact more than three times the size of Greenland. However, this particular distortion is not what has created the controversy. Because so many of the poorer nations of the world are in or near the tropics, their areas seem smaller on the Mercator map, relative to the nations of Europe and North America.
“In our society,” a critic claimed, “we unconsciously equate size with importance and even with power, and if the Third World countries are misrepresented, they are likely to be valued less.”5 The source of this revelation about other people’s unconscious was of course not revealed. However, a maverick map-maker in Germany named Arno Peters has denounced the Mercator Projection as an example of “European arrogance,” since it makes Europe look relatively larger than Third World countries and this has been taken to imply intentional efforts to foster Eurocentric and even imperialist attitudes.6 In the United States, the National Council of Churches has endorsed and published Peters’ alternative map of the world and some United Nations agencies have likewise switched to the Peters map. Textbook publishers have been forced by the Texas Education Agency to include in their books sold in that state a disclaimer concerning the accuracy of the Mercator Projection and to include comparisons of other maps. The fact that most professional map-makers have been highly critical of the Peters alternative map carries no weight with the anointed.
“The political implications of this map are true, whereas the political implications of the Mercator map are false,” according to a spokesman for the National Council of Churches’ publishing organization.7 “The question for the church is not primarily one of scientific reliability,” he said in defense of the Peters map. “We see this map as being very central to establishment of a correct world view.”8 In short, the integrity of yet another profession is to be violated for the sake of “political correctness.”
As with so many other issues involving the vision of the anointed, this ideological uproar turns on a failure to understand the nature of trade-offs and a willingness—or even eagerness—to read malign intentions into others. All maps necessarily distort the globe for the simple reason that there is no way to accurately represent a three-dimensional planet on a two-dimensional piece of paper. Something has to give. Some maps have the areas correct but the directions wrong, while others have just the reverse, and still others have other problems.9
Choices of map projections, like all other choices, can only be made among the alternatives actually available—and an accurate map of the world has never been one of those alternatives. In map-making, as in other decision-making processes, there are no “solutions” but only trade-offs, which in this case permit one kind of accuracy to be achieved only at the expense of other kinds of accuracy. Finally, to complete the parallel with so many other kinds of misunderstandings by the anointed, maps do not exist for symbolic or ideological purposes but to meet some concrete practical need. One of the most enduring and most important needs met by maps is for finding places, particularly for navigation by ships and later by planes. Given this imperative, which was a matter of life and death to sailors for centuries, the Mercator Projection became a commonly used map because its directions were made accurate—at the expense of distorting the relative size of areas. Given that the users of these maps were far more concerned with arriving alive at their destinations than with comparing real estate, the Mercator Projection reigned supreme as a world map.
Enter the anointed. For them, all this history and the scientific principles of map-making have been blithely ignored and yet another opportunity for moral preening created instead.
When someone says that a flock of geese is flying overhead, no one believes that this is an all-female flock, with no ganders among them. It is just that the female name—goose—is used generically to denote the whole species. With people, the male name—man—is used to denote the species, while ships and countries are usually referred to as “she.” How all this arose historically is lost somewhere in the mists of time. But just as no one means to exclude ganders when referring to a flock of geese, or to suggest that some female made the decision when Russia decided that she would invade the Caucasus, so no one intended to exclude women when the generic “he” was used. One can look through writings from centuries past and see general principles about “man” illustrated by examples of how mothers treat their children or how housewives manage a household.
Simple and obvious as all this should be, a whole crusade has been launched, requiring that clumsy phrases like “he/she” or “s/he” or “he or she” be used, leading to such constructions as “When anyone decides that he or she should have his or her house painted, then he or she should go to a painter and ask him or her how much it will cost.” All this is supposed to demonstrate that we are part of the anointed who believe in the equality of the sexes, rather than the benighted who betray anti-female animus by using the generic “he.” This cluttering of the English language conveys no additional information in the statement itself, however much it may serve as a shibboleth identifying the anointed. It connotes also false information, namely that those who preferred a less cluttered way of writing were secretly harboring malign thoughts toward women—or “self-hate” where these writers were women themselves. As with so many verbal and other fetishes of the anointed, it serves primarily to circumvent a need for either logic or evidence.
Trivial as such crusades may seem, they have been very successful in changing the way people talk in the media, in academia, and in government. Not only is the generic “he” taboo in many quarters, the speech controllers have pressed on to new conquests, attacking such words as “layman,” “craftsman,” “actress,” or “matron,” which violate their unisex view of the world, and also proscribe such phrases as “to master a language” because it uses a sex-specific word.10 These examples are from an official guidebook put out by the Australian government, which shows how far such crusades have spread. An American guidebook, distributed internationally, declares that there is “a perfectly scientific, completely foolproof, and highly theoretical model for avoiding sexism on the job.”11 As so often happens, pretensions of “science” are the last refuge of those who offer neither the evidence nor the logic that are integral to science.
The net effect of all this is that young women, especially in educational institutions where they are bombarded with radical feminist propaganda, are led to believe that every use of the generic “he” in books of the past is proof of disdain or hostility toward women, when in fact such usage simply avoided cluttering up the language or forcing writers into strained constructions and awkward phrases. In short, the anointed are helped to make yet another group feel like victims and to regard the anointed as their rescuers.
The ideals of “a government of laws and not of men” and “equal protection of 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 does to other groups or to 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.”12 Nor was this simply the aberration of one senator. The notion that judges, including Supreme Court justices, are to align themselves on various “sides” has reached the Supreme Court itself. Justice William O. Douglas referred to previous court decisions as “good tidings to the moneyed interests” and described these decisions as making clear “on which side the Court was aligned.”13 In a similar vein, New York Times columnist Linda Greenhouse characterized Justice Harry Blackmun’s changing criteria of legal interpretation over the years as a changing of sides on social issues, in which the “defender of a comfortable status quo became a questioner and then a challenger.”14 One of Blackmun’s former law clerks likewise praised him as someone who had “learned that Justices must take sides.”15
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 the integrity of the game. Nevertheless, this 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.
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.16 Some librarians resigned rather than put up with it.17
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 a public library” and specifically banning people who “annoy others” in various ways and whose “personal hygiene” was not acceptable.18 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.19
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.20 It was a place where people have a “right to receive ideas.”21 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.”22 Judge Sarokin 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.”23 Moreover, a hygiene test has “a disparate impact on the poor.”24 In short, the library rules “unreasonably frustrate, infringe, or obstruct the expressional and associational rights of individuals,” according to Judge Sarokin.25
In a classic expression of the vision 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 conditions, not their library cards.”26 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 reality, Kreimer was born into a middle-class family and inherited with his brother an estate worth $340,000.27 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 the 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 spend 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.28
Here, as elsewhere, the anointed show what Jean-François Revel has called “a pitiless ferocity toward some” and “a boundless indulgence toward others.”29 Both the particular mascots chosen and the particular targets chosen serve the same purpose—to demonstrate the superiority of the anointed over the benighted. To put themselves solidly on the side of the supposed underdogs, the anointed often place permanent labels on people, on the basis of transient circumstances. Richard Kreimer was not born “homeless.” In fact, he inherited a home and sold it.
Most homeless people are by no means as fortunate as Kreimer, either in their initial circumstances or in finding a judge so ready to adopt them as mascots, in order to engage in moral preening. However, there are similar attitudes in the intellectual community in general and in the mass media in particular. The thesis that the homeless are “people just like us” who happen to have fallen victim to misfortune has been repeated endlessly in the media and the television camera has often presented as typical what is most atypical among the homeless: normal, intact families forced into homelessness by some unexpected injury, plant shutdown, or other unavoidable catastrophe. Politicians promoting various programs to solve the homeless problem likewise have a vested interest in presenting the atypical as typical, in an effort to gather political support behind their programs. Homeless advocates report such requests as: “We need a witness for a hearing. Can you get us a homeless family: mother, father—father out of work in the past four months from an industrial plant—white?”30
Despite such image-making, a substantial component of the homeless are mentally ill people, often either biologically so or made so by drugs and alcohol. An estimated one-third of the homeless fall into the mentally ill category and another third into the category of alcohol and drug abusers.31 All have been adopted as mascots of the anointed, though in different ways. For example, lawyer-activists have made it increasingly difficult and costly to confine the mentally ill to institutions, rather than let them roam the streets.32 Costly law-suits and the threat of large damage awards add to the incentives for local officials to discharge the mentally ill from hospitals.
The premise behind all this is that “society” is to blame for the things it chooses to call mental illness. It is assumed that either there is no such thing as mental illness, aside from society’s arbitrary condemnation of certain behavior,33 or else where there is a genuine problem, it is regarded as either a product of bad child rearing or of more general social malaise requiring political “solutions.” Either way, the problem is due ultimately to the fact that other people are not as wise or as virtuous as the anointed, and the solution is to impose this superior wisdom and virtue, whether on the family or on the whole society. In short, the mentally ill are mascots of the anointed, enabling the latter to “make a statement.”
Notions of social causes of mental illness have had to retreat before growing scientific evidence of biological malfunctions affecting the brain. However, this better understanding of the biology of much mental illness has led to medications which provide another rationale for opening the mental hospitals and sending mental patients back home—or out onto the streets, as the case may be. However, even those mentally ill individuals who can be helped by medication often stop taking the medication, once they are no longer living under supervision, and retrogress to delusions and incoherence. Those who are sleeping on the streets on bitterly cold winter nights are as much mascots of the anointed as Richard Kreimer. In both cases, they serve to enable the anointed to score points against a benighted society, whether or not this proves ultimately to be a benefit to the mascots themselves.
Incidentally, Judge H. Lee Sarokin was elevated to the Circuit Court of Appeals by President Clinton in 1994.
For at least 200 years, those with the vision 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.34 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. This 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.”35 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.36
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.37
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 very 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 U.S. 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.”38 This was 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 labouring under such a defect of reason, from disease of the mind, as not to 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.39
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”40 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 if there was “some evidence” that the accused “suffered from a diseased or defective mental condition.”41
The nebulous notion of “defective mental condition” evolved in later cases into saying that someone “suffering from an abnormal condition of the mind”42 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 as this was proposed. Instead, the speculations of psychiatrists and psychologists were to be 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 latter 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 been not merely lacking but almost 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 actual 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, or lives. 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 psychiatrists’ 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.43 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:
Rosa 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!”44
The net result of all this was a suspended sentence for a woman with a lifelong history of shoplifting (which she taught her children) and drug addiction, the mother of children and grandchildren who have 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 phony 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.”45
Criminals are the most obvious, and most resented, of those for whose benefit judges have stretched the law, in an attempt to achieve the cosmic justice of compensating for preexisting disadvantages. Chief Judge 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 those 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.”46 Convinced that “poverty is the root cause of crime,”47 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.48
That most people born in poverty did not become criminals, and that people born in more fortunate circumstances sometimes did, was acknowledged by Judge Bazelon,49 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 rates 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,”50 Chief Justice Bird’s votes implied that these 60 consecutive trials not only contained technical legal errors, but also that these errors were of such a 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 after 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 that 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.51 Death penalties in other premeditated murder cases 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 murderer 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.52 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 much of the California media, sprang to her defense. New York Times columnist Tom Wicker defended her invariable vote to overturn death penalty cases by claiming that “in every single instance of a death-penalty reversal, the Bird court has found a constitutional infirmity”53—as if the court could possibly have claimed anything else, regardless of how tenuous that claim was. The death penalty cases were an “emotional issue,”54 according to Wicker, using the standard term for any principle of concern to the benighted, while Rose Bird’s position on the side of the anointed was a matter of principle—“the rule of law,”55 no less. The Los Angeles Times likewise claimed that 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.”56 A New York Times editorial claimed that Rose Bird’s opponents were “politicizing” the judiciary57—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.”58 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.59 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.60
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. Anybody 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. Given the imperfections of human beings, some of these groups have in fact been given a bad deal, though it by no means follows that what is proposed in the vision of the anointed will make things better on net balance.
A classic example of the rights of particular mascot groups overriding the rights of others are cases involving people with contagious diseases, including fatal 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. Although the school board argued that the teacher was fired not because of her impairment but because her presence threatened the health of others, Justice Brennan, writing for the majority, refused to accept that distinction:
Arline’s contagiousness and her physical impairment each resulted from the same underlying condition, tuberculosis. It would be unfair to allow an employer to seize upon the distinction between the effects of a disease on others and the effects of a disease on a patient and use that distinction to justify discriminatory treatment.61
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 schoolchildren, carries little weight when taking sides with mascots against targets. As in so many other contexts, such taking sides provided an occasion for assertions of the superior virtue and wisdom of the anointed as compared to the benighted. In Justice Brennan’s words, the law’s purpose was to “combat the effects of erroneous but nevertheless prevalent perceptions about the handicapped,”62 to “ensure that handicapped individuals are not denied jobs or other benefits because of the prejudiced attitudes or the ignorance of others.”63 He repeatedly characterized others’ responses in such terms as “reflexive reactions,”64 “mythology,”65 and “prejudice, stereotypes, or unfounded fear.”66
Since the term “handicapped” covers such a wide range of conditions, even in its normal usage—quite aside from Justice Brennan’s extension of the term to people with tuberculosis—almost any blanket statement about “the handicapped” is virtually certain to be wrong. So is any blanket statement about how mistaken or malign the benighted are in their particular assessments of the individual cases they encounter firsthand. But, although the term “handicapped” is, if anything, even less precise than “vagrant,” there is no danger that laws favoring the handicapped would be declared unconstitutional as “void for vagueness,” for such laws promote the vision of the anointed and laws against vagrancy go counter to it.
Even if medical experts were to certify that the tubercular teacher in question was a danger to the health of the children, thereby permitting her to be removed from the classroom, the law protecting the handicapped required that she be considered for other assignments for which she was “otherwise qualified.” The Supreme Court sent the case back to the District Court to determine whether the teacher in question was “otherwise qualified” to be kept employed by the school system.67
Homosexual activists greeted this Supreme Court decision with approval, because of its possible implications for those with AIDS. Although AIDS was not at issue in this particular case, Justice Brennan in a footnote left open the question whether AIDS carriers might also be considered as “handicapped” people entitled to the same legal protections.68
Judges, by and large, have adopted this same vision of the anointed in dealing with cases involving AIDS. While public health officials have for decades traced the sources of other 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.”69 A jail inmate with AIDS who was kept separated from other prisoners was awarded $155,000 in damages.70 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.71 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.”72 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.”73 But, just one year later, the Centers for Disease Control began reporting dozens of cases of people who caught AIDS from blood transfusions74 and, just two years after that, the AIDS deaths from blood transfusions were in the thousands.75 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.76 The long incubation period of the disease 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.”77 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 1983 joint statement, for example, the Red Cross and two trade groups representing most other blood banks—the American Association of Blood Banks and the Council of Community Blood Centers—put the risk of getting AIDS from a 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.78
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 1985,79 though such precautions later became accepted and then officially recommended in federal guidelines.80 It was at one time triumphantly proclaimed that no health-care worker had ever contracted 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 patients81 and by 1991 there were cases of patients who caught AIDS from a dentist.82 As Newsweek noted: “Just a year ago authorities on AIDS considered it virtually impossible for an AIDS-infected physician or dentist to pass the virus on to patients.”83
Precautions to protect the public from AIDS carriers have repeatedly been backed into only after 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 hundreds 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.
One of the arguments for maintaining the anonymity of AIDS carriers is that otherwise they will be “driven underground” and become more dangerous. But anonymity laws make them “underground” to begin with—and maintain them in that situation even when some others discover that they carry a dangerous disease but are deterred by heavy legal penalties from warning anyone else. One rationale has been that the “counseling” received by AIDS carriers as part of their treatment will make these carriers more careful not to spread their disease to other people. This view, expressed by the New York Times among others,84 would certainly be in keeping with the vision of the anointed, as contrasted with relying on incentives, as in the tragic vision. Since the AIDS carriers are already fatally infected, the only incentives likely to be effective are those operating on the healthy population, who have every incentive to safeguard their own health—if the anointed do not prevent them from doing so.
Some indication of how much havoc can be wreaked by just one person with AIDS who does not choose to respond to “counseling” can be illustrated by the case of a homosexual airline steward who flew around the country infecting others with AIDS in gay bath-houses. As of 1982, at least 40 of the first 248 homosexual men found to have AIDS had either had sex with this steward or with someone else who had.85 He lived for two more years, with an active sex life, despite knowing that he was infected with AIDS and despite entreaties, warnings, and even threats.86 After having sex in the dim lights of a gay bathhouse, he would turn up the lights to show his partner the lesions on his skin and say: “I’ve got gay cancer. I’m going to die and so are you.”87 Although medical authorities in both the United States and Canada knew who he was and what he was doing, they were legally prohibited from warning anyone.
Other AIDS carriers also continued to have sex and some have deliberately bitten prison guards, or policemen trying to arrest them, in order to infect them.88 Once infected, the incentives to stop were zero, except for those with consciences. Again, doctors and others fully aware of what they are doing are prevented by severe penalties of the law from warning anyone. Yet the New York Times editorially supported parole boards’ decisions to parole various AIDS-infected prisoners as soon as they served the minimum term for eligibility for parole—“but only if they disclose their condition to those on the outside who might be imperilled.”89 How anyone could enforce such a requirement was left undisclosed. Feasibility questions often have a low priority in the vision of the anointed and mascots have a high priority.
Many of the same people who spread alarm over remote possibilities of dangers from pesticides or nuclear energy are among those most willing to accept dangers from AIDS carriers. Mascots are treated differently from targets.
Just as the logic of their vision guides the anointed in their choices of mascots, so it guides their selection 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.
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 has always been 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 had occurred. But this never happened to those in groups who were mascots of the anointed. It happened to those in groups who were targets.
In a California case during the Rose Bird era, an employee who was waiting for his employer to arrive and open for business used the time to work under the hood of his own car on a public street and was injured by a passing motorist—and was then declared to be entitled to workman’s compensation.90 In a federal case, the purchaser of a farm machine from International Harvester specifically requested that the safety device which came with it be removed before delivery, apparently to make the machine easier to get in and out of a barn. Yet, when his employee was killed as a result of the safety device being missing, it was International Harvester who was held to be legally liable for the death. The fact that the purchaser made the decision to remove the safety device, and that the employee made the decision to operate it without the safety device, meant nothing. Neither did the fact that the employee died as a result of taking a chance by standing up on a machine part to try to see what was happening nearby, slipping and then falling under another machine part that crushed him. His “exercise of prudence or care” was ruled by the court to be “irrelevant.”91 Apparently mascots can do no wrong and targets can do no right.
In another federal case, the producer of a herbicide was held responsible for the death of a worker who paid no attention to the warning label, even though that label said exactly what federal rules said that it should say. Despite the fact that the company had no legal choice except to word the label precisely as prescribed by the Environmental Protection Agency, the court ruled that “the duty to provide an adequate warning of the danger was not met”92 because its warnings about fatal consequences did not include the particular fatal consequences from which this individual died. Compliance with both federal laws prescribing the exact wording of the warning and state laws requiring more extensive warning “cannot be said to be impossible,” according to the court, which reasoned:
Chevron can continue to use the EPA-approved label and can at the same time pay damages to successful tort plaintiffs such as Mr. Ferebee; alternatively, Chevron can petition to EPA to allow the label to be made more comprehensive.93
Another helpful suggestion was that Chevron could simply stop selling this chemical in this state.94 That this one-sided way of looking at things violated centuries of legal tradition was brushed aside:
We live in an organizational society in which traditional common-law limitations on an actor’s duty must give way to the realities of society.95
In numerous other situations, people in businesses and professions began to be held legally liable who would never have been held liable in the past—and this not due to changed statutory law but because of new judicial interpretations. For example, when the manager of an apartment complex raped a tenant, the owners were sued.96 Consumers who ignored warnings and disclaimers on the products they bought were nevertheless allowed to sue the manufacturers for damages when things went wrong.97 Judges became so ingenious in circumventing warnings and contractual disclaimers, in order to allow manufacturers to be sued, that one wit suggested that torts be renamed contorts.
In many cases, it was no longer necessary to prove that a particular product caused a particular harm, or that a particular manufacturer produced that product if it did. When no one knew which firm in a given industry had produced the particular product that harmed particular individuals, courts sometimes let victims sue all those who were manufacturing that product, splitting up the damages to be paid according to the firms’ respective shares of the market.98 In other cases, juries were free to speculate as to whether they thought the product might have been responsible, even if the product met every safety standard prescribed by law and even if the preponderance of scientific opinion was that the product in question did not produce the harm in question.99
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.100 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 which resulted.101 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.102
Virtually all aspects of medicine became targets for escalating lawsuits. By 1985, one-fourth of all obstetricians-gynecologists in the country had been sued.103 Psychiatrists were sued for things their patients did, months after their last visit.104 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 way.105 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 a potential for negative consequences if misused.
In treating businesses and professions as targets, the courts were often also exhibiting another aspect of the vision 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 that 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. Moreover, 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 shallower pockets, whether of taxpayers or of stockholders.
This presumption of available “solutions” was particularly devastating in medical fields where only painful and inescapable trade-offs have been common as regards vaccines, medicines, and medical procedures in general. Yet courts have permitted hundreds of lawsuits against whooping cough vaccine manufacturers, for example, leading some pharmaceutical houses to stop producing it.
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.
The very existence of families and the viability of marriage are both grossly understated through misused statistics, as noted in Chapter 3. Similarly, the incidence of various problems in families is overstated by artful definitions and half-truths. For example, alarmist stories in the media about domestic violence often lump together husbands and boyfriends as “partners” who batter women, when in fact a woman who heads her own household is nearly three times as likely to be beaten as a wife is. Separated, divorced, and never-married women are all more likely to be beaten than a wife is.106 In other words, the traditional family is the safest setting for a woman—though that is, of course, not the message which the anointed seek to convey.
Because neither the traditional family nor any other setting is perfectly safe, there will always be examples of “battered wives,” just as there are battered husbands, battered bachelors, and battered women in lesbian relations, among others. But the rate of violence among lesbians living together—about the same as in heterosexual relationships107—is of no interest to those seeking to depict male-female relationships as violence-prone. In fact, men tend to assault one another more often than they assault women. The rate of victimization by assault has generally been higher for men than for women, and the rate of victimization by aggravated assault usually at least twice as high for men as for women. The total number of women assaulted tends to be somewhat greater, but the total number of assaults suffered is greater for men.108 Put differently, the target of a given assault is far more likely to be a man than a woman. Given that all categories of human beings are both victims and perpetrators of violence, the question is not whether anyone can be absolutely safe from assault but who is more likely or less likely to be victimized. The least likely of all victims is a wife. Men and single women are assaulted more often. Yet the impression spread by those with the vision of the anointed is just the opposite. Some of the claims made are internally contradictory. The Christian Science Monitor, for example, said:
Domestic violence affects an estimated 4–5 million women a year. Every 15 seconds, an American woman is abused by her partner.109
Quite aside from the “partner” problem, the arithmetic is wrong. Five million women would mean an incident every 6.3 seconds.110 This botching of simple arithmetic may be indicative of how anxious zealots have been to proclaim a conclusion in keeping with the vision of the anointed—and how gullibly many highly regarded newspapers, such as the Washington Post, the Chicago Tribune and the New York Times, in addition to the Christian Science Monitor, have repeated these claims, without even bothering to check for internal consistency with a pocket calculator.111 As if this mathematical inconsistency were not enough, the estimate itself is also unreliable. Empirical studies which distinguish serious violence from merely grabbing or pushing come up with figures less than a tenth of those widely quoted in the media.112 Not only is the total amount of family violence exaggerated, its sources and incidents are falsely attributed to the least violent social setting, the traditional family. It is the setting of unmarried sex partners—the “nontraditional family,” as the anointed put it—that is especially violent. A study of men charged with domestic violence found that the offender was typically young, unmarried, and either unemployed or working in a blue-collar job. Other studies indicate that alcohol and drugs are involved in most cases.113 Ozzie and Harriet are not the problem, though what they represent is a target of the anointed, who seek to undermine the autonomy of families, in order to promote the moral surrogacy which is at the heart of their vision.
Among the family decisions which various political crusades are attempting to transfer to third parties are:
1. At what age, 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 Engels’ first draft of the Communist Manifesto included a deliberate undermining of family bonds as part of the Marxian political agenda,114 though Marx himself was politically astute enough to 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”115—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 about 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 promoted the claim that one out of eight fathers sexually abused their own daughters, when in fact research showed that not even one out of a hundred did so.116
The pervasive preference of the anointed for collective and third-party decision making (“solutions” by “society”) takes the form of promotion of “day care” for children. Enabling families to take care of their own children at home by allowing the income tax exemption to keep pace with inflation and the real cost of raising children has no such support among the anointed. Indeed, this is an idea often pushed—in vain—by conservatives. While the anointed are often ready to spend vast amounts of government money on families, especially in ways which allow outsiders to intrude into family decisions, they are by no means equally willing to let families keep money that they have earned and make their own independent decisions. In family matters, as in other matters, power and preemption are the touchstones of the vision of the anointed, however much that vision is described in terms of the beneficent goals it is seeking.
Despite the faith of the anointed in “expertise” and “professionals” in the raising of children, the facts paint a grim picture of the actual results of transferring children from individual home care to collective day care. A study in the Journal of the American Medical Association found that preschool children were from 4 to more than 12 times as likely to contract meningitis if they attended a day-care center than if they were cared for at home.117 The incidence of other diseases also rose with the growth of day care.118 Studies have indicated that psychological problems are also more prevalent among children in day-care centers.119
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.120
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.121 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 her 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 after 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.”122 Studies on the suggestibility of small children indicate that they can be induced to change their stories, even in a laboratory setting,123 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. Even when there is proven child abuse, the response is often to send the child back into the same home if the family agrees to psychological counseling and visits by social workers—even though neither of these things guarantees the safety of the child. In short, it is only the independent and autonomous families that are sacrificed when they refuse to “admit” to what the anointed presuppose.
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 those 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 members of other churches. The First Amendment forbad 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 straight-forward 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 1988 case, for example, Justice Harry Blackmun’s majority opinion declared, “the Constitution mandates that the government remain secular, rather than affiliate itself with religious beliefs or institutions”124—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.
Since the Allegheny County government could hardly be committing itself to being both Catholic and Jewish at the same time, the argument was that these displays violated the concept of a “secular state.”125 Although this secular state was another concept found nowhere in the Constitution, Justice Blackmun spoke of “the constitutional command of secular government,”126 so that the “simultaneous endorsement of Judaism and Christianity is no less constitutionally infirm than the endorsement of Christianity alone.”127 The question before the Court was not whether these religious displays were a good idea in a society where many people were not religious, but whether they were forbidden by the Constitution. Unable to find anything in the Constitution itself to support such a strained interpretation, Blackmun relied on a precedent set by another Supreme Court case where a war memorial containing both crosses and stars of David was declared unconstitutional.128
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,”129 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”130 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.”131 However reminiscent of Medieval casuistry these and other fine-spun distinctions made about Christmas displays may be, they have nothing to do with the Constitution’s prohibition against creating an establishment of religion. They have everything to do with imposing the vision of the anointed under cover of words about something very different.
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-grade attitudes,132 various religious individuals and groups have objected. These objections are then declared to be attempts by “the religious right” to “force their beliefs on other people.” For example, when a group of fundamentalist parents in Tennessee objected to having their children required to read certain assignments which they considered to be undermining their religion, the media billed the resulting legal case as “Scopes II,” likening this to the famous trial where school-teacher John Scopes was prosecuted for teaching evolution. They were undeterred by the trial judge’s clear explanation of the distinction:
It is important to note at the outset that the plaintiffs are not requesting that the Holt series be banned from the classroom, nor are they seeking to expunge the theory of evolution from the public school curriculum. Despite considerable fanfare in the press billing this action as “Scopes II,” it bears little relation to the famous “monkey trial” of 1925. These plaintiffs simply claim that they should not be forced to choose between reading books that offend their religious beliefs and foregoing a free public education.133
Whatever the merits or demerits of the fundamentalist parents’ objections to these readings, they were seeking an exemption for their own children. And whatever the merits or demerits of the public school officials’ granting or refusing that exemption, it had nothing to do with indoctrinating other children with fundamentalism. Yet, after a decision favorable to the parents was announced, the liberal organization “People for the American Way” declared that this was “an attempt to force one intolerant version of ‘God’s law’ on everyone.” Newspaper editorials decried the decision as “absurd” and “outrageous” and even conservative columnists George Will and James J. Kilpatrick attacked the decision—as it had been reported in the media.134
This was one of the rare legal victories won by religious people attempting to retain the right to raise their own children by their own values. The more general mind-set of contemporary judicial application of the First Amendment was illustrated in a case involving a group of handicapped children going to a public school in a small village inhabited by Hasidic Jews in New York State. Religion was not taught in this school. For that the Hasidim had their own private schools. What the public school did was to allow deaf, retarded, or otherwise handicapped children of this sect to receive the same federal benefits as other handicapped children, without having to subject themselves to the shock and ridicule of going to school among other children to whom their unusual appearance, beliefs, and behavior were sure to attract unwelcome attention. By passing a law to allow this particular village to have its own school district, the state legislature tried to spare these children that fate. But the U.S. Supreme Court declared the law unconstitutional.
While conceding that the “curriculum and the environment of the services were entirely secular” in the public school attended by the handicapped Hasidic children,135 and that they received “special education programs like those available to all handicapped children, religious or not,”136 Justice David Souter’s majority opinion nevertheless declared the legislation creating this school district in a village inhabited solely by Hasidic Jews unconstitutional because it “singles out a particular religious group for favorable treatment.”137 In a number of other special situations, the state legislature had also created special school districts to accommodate other particular groups of citizens for various other reasons,138 but to do the same for a religious community was considered a “threat to neutrality” among religions because “we have no assurance that the next similarly situated group seeking a school district of its own will receive one.”139
This remarkable criterion would invalidate virtually every law or government policy as unconstitutional, since there can be no prior assurance that any law or policy will be applied without discrimination in the future. As Justice Antonin Scalia said in dissent: “I never heard of such a principle, nor has anyone else, nor will it ever be heard of again.”140 In other words, it was another ad hoc, disingenuous excuse for imposing the vision of the anointed as “the law of the land” under the guise of interpreting the Constitution.
Another remarkable principle emerged in Justice John Paul Stevens’ opinion concurring with that of the majority that this village school district was unconstitutional:
The isolation of these children, while it may protect them from “panic, fear and trauma,” also unquestionably increased the likelihood that they would remain within the fold, faithful adherents of their parents’ religious faith. By specifically creating a school district that is specifically intended to shield children from contact with others who have “different ways,” the State provided official support to cement the attachment of young adherents to a particular faith.141
In other words, the collateral benefit to the religious community from having its children spared being the butt of ridicule in school was enough to make this law a violation of the First Amendment. Again, this was the vision of the anointed, not the mandate of the Constitution. Also symptomatic of that vision was Justice Stevens’ casual assumption of an alternative government solution, in this case that New York State could take “steps to alleviate the children’s fear by teaching their schoolmates to be tolerant and respectful” of the Hasidic customs.142 Miracles on demand!
In response to Justice Scalia’s ridicule of the notion that a little village of Hasidic Jews was “an ‘establishment’ of the Empire State,”143 Justice Souter said, “the First Amendment reaches more than classic, 18th century establishments.”144 In other words, the constitution no longer means what it meant when it was written but what successive stretching and strainings now cause it to mean. Since it will be stretched and strained in different directions for those who are mascots than for those who are targets, the motto on the facade of the Supreme Court likewise no longer means what it seems to mean: “Equal Justice Under Law.”