The Tyranny of Clichés: How Liberals Cheat in the War of Ideas (25 page)

And you would be absolutely right. It is a
principle
. The principle is that the society should err on the side of the accused. It is a statement of how our system of criminal justice should be oriented and a reflection of the bedrock dogma of all civilized societies that innocent men and women should not be punished for crimes they did not commit. Even Increase Mather proclaimed during the Salem witch trials that “it were better that ten suspected Witches should escape, than that one innocent person should be condemned.”
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The problem is that as a principle it is utterly and totally uncontroversial. I’ve never met a soul who disagrees with the proposition that we should have safeguards to protect the rights of the falsely accused. Our entire legal system rests on this idea. We are all, figuratively speaking, children of the “father of criminal law.”

The reasons why the principle is important are too numerous to list. Bentham himself acknowledged that a society built around the idea that it is tolerable to punish the innocent will not prosper. It is a bedrock contract of society, more important and older than notions of democracy that justice be done to all. But, and this is crucial, that contract is not a suicide pact. Hence the folly of releasing an army of rapists and murderers in order to ensure a single Joe the Accountant is treated fairly. Just governments have an obligation to protect citizens from violence—by other citizens or by
a capricious and arbitrary government official or ruler. All morally serious people understand this. Which is why they also understand that in an imperfect world, trade-offs are inevitable. Distinctions have to be made, lines drawn. If we took the principle of
n
guilty men as sacrosanct, we would require that the accused be found guilty not beyond a reasonable doubt,
but beyond all doubt
.

Such a system would not be impossible to impose, but it would be impossible to sustain, because it would require letting teems of rapists, crooks, and murderers free in order to ensure that the innocent are never, ever, wrongly punished.

So rather than institutionalize folly, we do the best that we can. We create rules that give the benefit of the doubt to the accused. We give them lawyers. We bind prosecutors to rules of evidence. We appoint judges bound to oaths of fairness and empanel juries to weigh the evidence to the best of their ability. We allow for appeals, sometimes without end. Even so, mistakes are unavoidable. Hopefully they will be mistakes made with the best of intentions and in good faith. In short, our entire system of justice is a cathedral built upon the foundation of Blackstone’s formulation.

Hence, when teaching law students or civics classes this basic principle of our justice system, it is entirely fine to state, “Better ten guilty men go free than one innocent be punished.” It never hurts to pour another layer of cement in the foundation of that cathedral.

But the phrase becomes pernicious and dangerous when it is used to change the subject from actual and specific questions of guilt or innocence. If Joe the Accountant is innocent he is innocent, and it does not matter what we do with guilty men. And if Joe is guilty, he is guilty. Too often, when people invoke
n
guilty men what they are in fact trying to do is change the subject. They corral an abstraction—“the system”—because they are uncomfortable arguing the facts in question. The implication is that they are arguing with somebody. But who are they arguing with? Not the judge, nor the prosecutor, nor the loved ones seeking justice for the dead, nor the other guests on a cable talk show. It is a debater’s talking point preloaded with its own straw man. As such it is a way to fend off an argument rather than a means of making one.

That’s why the only intelligent response to someone who says, “Better ten guilty men go free…” is, “Okay. So what?”

14

LIVING CONSTITUTION

Y
ou know Lady Justice, right? No, not personally. But you know the statue. It’s the one of a woman wearing a blindfold and holding a scale. She stands in front of countless courthouses across America. She’s an amalgamation of various Greek and Roman divinities, starting with Themis and her daughter Dike. Themis was the goddess—a Titan, if you want to get technical—of order. Her name means “divine law,” and she represented the just and right customs laid down by divine authority. After Themis set the divine law, her daughter, Dike, delivered it to men. She led her sisters, the Horae, in her determination to deliver impartial and fair justice to the mortal world. She even carried scales to balance the facts and competing claims of those seeking justice.

Depictions of Lady Justice changed with the conceptions of justice itself.
Inspired by the Greek poets, the Romans conceived of Justitia, a goddess of justice who wielded scales in her left hand and a double-edged sword in her right hand. The scales represented fairness and balance to both sides in any dispute, the sword the might and power of reason. By the fifteenth century Justitia had evolved into Lady Justice, complete with her iconic blindfold, which represents her objectivity. From then on statues of Lady Justice proliferated across Western civilization, and the phrase “Justice is blind” settled into the popular consciousness (though it probably dates back to Roman times). In 1601, we see the first usage of
Fiat justitia ruat caelum
: “Let justice be done though the heavens fall.”
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The notion that justice must be impartial and universal, showing neither favor nor animus to rich or poor, became one of the most revolutionary and liberating ideals in the history of humanity. As with any ideal, nobody has ever perfectly implemented it, but the conviction that one should try was the engine of human progress for millennia, toppling the divine right of kings and laying the groundwork for democracy and the rule of law. That’s why Lady Justice stands vigil outside our own Supreme Court and is given full expression in the Supreme Court justices’ oath of office. Each justice vows to “administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon [me]… under the Constitution and laws of the United States. So help me God.”

But, hey man, times change.

So argued the progressives. Drunk on a rich cocktail of Hegel, Darwin, and Dewey, they believed that they were smart enough to scavenge what they thought useful from the whole mule cart of Western civilization, and then throw the rest of it off the cliffside of history, clanging and banging its way down the memory hole. They would start over. Fresh. Blank sheet. They would rebuild Lady Justice, stronger, faster, better (cue bionic man sound effect). Here’s
New Republic
editor Herbert Croly writing of Lady Justice’s need for a total makeover.

In the past, common-law justice has been appropriately symbolized as a statuesque lady with a bandage over her eyes and a scale in her fair hands. The figurative representation of social justice would be a
different kind of woman equipped with a different collection of instruments. Instead of having her eyes blindfolded, she would wear perched upon her nose a most searching and forbidding pair of spectacles, one which combined the vision of a microscope, a telescope, and a photographic camera. Instead of holding scales in her hand, she might perhaps be figured as possessing a much more homely and serviceable set of tools. She would have a hoe with which to cultivate the social garden, a watering-pot with which to refresh it, a barometer with which to measure the pressure of the social air, and the indispensable typewriter and filing cabinet with which to record the behavior of society.… [H]aving within her the heart of a mother and the passion for taking sides, she has disliked the inhuman and mechanical task of holding a balance between verbal weights and measures.
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Alas, this book doesn’t come with illustrations, because I would rather enjoy commissioning an artist’s rendition of a woman outfitted to look like a cross-dressing hybrid of Mr. Gadget and Granny Clampett from
The Beverly Hillbillies
, as the great symbol of progressive jurisprudence.

The “living constitution,” as the phrase is used today (i.e., distinct from the very different conceptions of, say, Britain’s “unwritten Constitution” or the “living tree” doctrine of Canada’s constitution), is a direct descendant of Croly’s time. Its chief architects were the by now familiar figures, Woodrow Wilson, Oliver Wendell Holmes, and the rest of the cast of
That 1910s’ Show
. Wilson believed that the old Newtonian conception of the Constitution needed to be replaced by the Darwinian idea of an
evolving
Constitution.

It’s difficult to exaggerate the impact of evolution on intellectuals in the late nineteenth and early twentieth centuries. Evolution didn’t just create new lines of thought; it seemed to provide scientific confirmation for ideas already deeply entrenched among intellectuals (the dynamic repeated itself when Einstein’s Theory of Relativity was taken to be more scientific confirmation of moral, legal, and ethical relativism). “Evolution germinated ideas wherever it penetrated, and it penetrated everywhere,” observed one historian.
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“The most fundamental things in our minds were,” Richard Ely,
the intellectual guru of the Wisconsin school of progressive economists and historians, recalled of his generation of intellectuals, “on the one hand, the idea of evolution, and on the other hand, the idea of relativity.”
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In July 1909, John Dewey penned an essay for
Popular Science
, “Darwin’s Influence Upon Philosophy,” in which he concluded:

[P]rior to Darwin the impact of the new scientific method upon life, mind, and politics, had been arrested, because between these ideal or moral interests and the inorganic world intervened the kingdom of plants and animals. The gates of the garden of life were barred to the new ideas; and only through this garden was there access to mind and politics. The influence of Darwin upon philosophy resides in his having conquered the phenomena of life for the principle of transition, and thereby freed the new logic for application to mind and morals and life.
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For Woodrow Wilson, power was a good in and of itself. He believed the artificial checks on presidential power were unnatural and ran counter to the tide of history. Holmes, likewise, felt that the courts had no business imposing economic rules enshrined in the Constitution if majorities and their representatives didn’t like them. “Experimentalism,” advised the pragmatists, was the key to all human progress, so any good Constitution must give social planners the power to experiment (this is why FDR tried to pack the Supreme Court with yes-men who would back his “bold consistent experimentation”). Don’t look backward, the progressives shouted from page and pulpit, for the past has nothing to teach us. “Progress!” exclaimed Wilson. “Did you ever reflect that that word is almost a new one? No word comes more often or more naturally to the lips of modern man, as if the thing it stands for were almost synonymous with life itself.… Progress, development,—those are modern words. The modern idea is to leave the past and press onward to something new.”
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And that was why, Wilson argued, governments must have unchecked power, and why “[l]iving political constitutions must be Darwinian in structure and in practice.” Wilson was the first American president to openly proclaim the Bill of Rights to be a dead-letter relic. Those
who still held it dear were bound up in mere “Fourth of July sentiments.”
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He was also the first president to hold that the president must have a “vision” for re-forming the United States. To that end, an enlightened Constitution must conform to those charged with imposing that vision, not the other way around. The pursuit of happiness was no longer an individual right but a state-driven agenda to be foisted upon a once free people. Quite simply, Woodrow Wilson subscribed to a treasonous theory of the law.

He was hardly alone. Across the progressive landscape the treason of the intellectuals was on full display. Charles Beard did lasting damage to the standing of the Constitution by arguing in his hugely influential
Economic Interpretation of the Constitution of the United States
that the Founders imposed a counterrevolutionary Constitution on the American people. According to Beard, the Founders enacted a system that protected their elite economic interests. His scholarship was slipshod and dishonest, as Forrest McDonald, Robert E. Brown, and other historians would finally demonstrate in the 1950s (economic self-interest and status played no significant role in the votes at the Constitutional convention or among the voters who ratified the Constitution).
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In Dewey’s
Ethics
(cowritten with James Hayden-Tufts) the authors lament that America’s Constitutions—i.e., the federal and state constitutions—“are full of… distrust of popular cooperative action. [The authors] did not and could not foresee the direction of industrial development, the increased complexity of social life, nor the expansion of national territory. Many measures which have proved indispensable have had to be therefore as it were smuggled in… by ‘legal fictions’ and by interpretations which have stretched the original text to uses undreamed of.”
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