Tuesday, May 12, 2009
Criminalizing Citizen Activism: The Chris Pentico Case
Who owns this joint? The Borah Building in downtown Boise provides temporary office space for Governor Butch Otter, who -- as a state employee -- doesn't actually own the building, nor does he pay the rent. So by what supposed right does the Governor, or any of his lickspittles, file a "trespassing" complaint against one of the citizens who do own that property?
Chris Pentico, a quiet, self-possessed 42-year-old resident of Mountain Home, Idaho, has a disposition as mild as tapioca. Yet the description offered by a state prosecutor at his sentencing hearing today (May 11) would lead you to believe that beneath his docile exterior, Mr. Pentico -- who looks a bit like a younger, clean-shaven, presentable version of Hank Willams, Jr. -- is a churning urn of burning rage.
Years ago, recited the prosecutor in the adolescent whine typical of a law school graduate of recent vintage, Mr. Pentico was "involved in an incident" on campus at Boise State University in which he displayed his "belligerent" personality. This is why he wound up "on law enforcement's radar" -- even though, as we would later find out, no charges were filed, and Pentico's record remained unsullied.
As a political activist with the Idaho Republican Party, Pentico frequently met with members of the state legislature and other public officials, often to complain about irregularities and examples of what he considers to be public corruption. This, according to our young prosecutor, made many public officials "uncomfortable."
She considered that to be a species of crime. I consider it a respectable downpayment on the type of treatment most public officials should expect: Nearly all of them should be unemployed, and those who remain on the public payroll should always be wearing the same facial expression that occupied the features of those invited to dine at the table of Dionysius of Syracuse -- immediately beneath the Sword of Damocles.
Who, me? Chris Pentico, renegade and terrorist, at his May 11 sentencing hearing.
Pentico was viewed as a "potential threat," a "problem subject," a "dangerous individual" prone to "harassing-type behavior," continued the prosecutor. "Due to his own conduct, he made himself something of a target" for law enforcement," she insisted. "And then he set his sights on the governor."
From this description one would be entitled to assume that Pentico was a suicide bomber in training, or perhaps had been discovered setting up a sniper's nest in a book depository somewhere overlooking Governor Otter's familiar travel route. What else could be meant by the frantic accusation that Pentico was "setting his sights" on the Gem State's imperiled Chief Executive?
Well ... would you believe, he tried to hand-deliver a letter.
Not a letter bomb, mind you, nor an envelope containing anthrax, or even a threat of some variety.
Pentico's letter contained a complaint about an attempt to ban him from contacting state legislators with complaints and civic requests of various kinds. Pentico delivered his letter to the governor's office at the Borah Building on April 2, 2008.
A week earlier, he had beentold by an Idaho State Police Officer that "my presence made a few of the legislators nervous" -- and of course, we can't have that.
Pentico was told that he was "not welcome in the Capitol Annex," a public facility intended to provide public access to state legislators who supposedly represent that same public.
While the first officer was addressing Pentico, he was joined by another policeman whom Pentico originally identified as Officer Pettis. The second officer expanded the compass of the public territory from which Pentico was to be banished.
"Officer Pettis said I was not welcome at the State Board of Education's offices [despite the fact that ] I have not been there in years.... Then he added `I was not welcome on the third and fourth floors of the Borah building; this is where the Governor's offices are located.' Officer Pettis ... also added `Do not contact legislators' and `Do not e-mail them.' He also gave me the implication problems woul d occur for me if I did. There is no written notification or anything of that nature." "I have not threatened anyone," Pentico continued.
"I believe there has been a pretty clear breach of law here. I am also under the impression that Officer Pettis willfully carried out an unlawful order. I want to know the authorization and jurisdiction for these orders. I also consider it inexcusable to use law enforcement to intimidate law-abiding citizens to not contact with their elected officials."
Pentico delivered that letter to the Governor's office on April 2, politely asked about an appointment, and left -- no doubt cleaving a huge trail of raw, visceral terror in his wake. As Pentico left the Borah Building, he was overtaken by the same ISP officer who had issued such expansive warnings the previous week -- Corporal Jens Pattis (not "Pettis," as spelled in Pentico's letter).
Out of what the Judge was told was concern for "officer safety," Pentico was handcuffed in public view for about twenty minutes and then issued a citation for "trespassing." Two matters arise for discussion here. First of all, Pentico was a threat to nobody, and handcuffing him was an entirely gratuitous assault on his person.
Interviewed by Wayne Hoffman of the Idaho Freedom Foundation, Corporal Pattis insisted that Pentico alone was to blame for this indignity, since he had "defied a law enforcement order" to avoid the Borah Building. Pattis is part of the New Model Army of law enforcement -- a corps trained to believe that citizens have an unqualified duty to obey every directive emanating from the tax-devouring gullet of someone in a state-issued costume.
Corporal Pattis had no authority to dictate the terms on which a peaceful, law-abiding citizen could petition his representatives. "I bent over backwards for this guy, trying to help him out," insists Pattis.
I'll warrant that he certainly bent over for somebody.
The second issue here is the trespassing charge itself. At no time during the prosecution of Chris Pentico was the identity of the complainant specified; indeed, great care seems to have been taken to avoid identifying the person who turned to Pattis and -- slapping a palm to his thigh and emitting a quick whistle -- yelled, "Sic 'im!"
This omission is critical for at least two reasons.
First, Mr. Pentico was not permitted to face his accuser; second, without an actual accuser, it was impossible to satisfy the legal requirement that Pattis be acting as the authorized agent of the owner of the property on which Pentico was supposedly trespassing.
The Idaho State Code, Title 18-7008(8), defines the crime of willful trespass as one committed when a person "except under landlord-tenant relationship, who, being first notified in writing, or verbally by the owner or authorized agent of the owner of real property, to immediately depart from the same and who refuses to so depart, or who, without permission or invitation, returns and enters said property within a year, after being so notified...."
In Pentico's case, the prosecution claimed that the "order" issued by Pattis on March 25 constituted a notification by the "authorized agent of the owner" of the Borah Building to avoid the premises in question, presumably for a year. Pentico waived a jury trial.
The trial judge, Ada County Magistrate Kevin Swain, insisted that because the trespassing statute did not distinguish between public and private property, it must apply to both. In reaching that conclusion, however, His Honor failed to explain how the tenant of a publicly owned property can order the eviction of an owner of the same.
As someone who believes the phrase "government-owned property" to be an oxymoron at best and an obscenity in every case, I offer the foregoing only to underscore the grotesque and obvious illogic of using the trespassing statute in this case.
Certainly, if Mr. Pentico's presence inspired a reasonable fear for the physical safety of the governor or any of his staff, he could be forcibly removed and, if appropriate, cited or otherwise made subject to punishment. He did nothing of the sort.
But unless the trespassing law is to be read in such a fashion that it would permit tenants to evict landlords, its application to this case makes no sense. This is underscored by the lack of an actual accuser and putative victim in this matter.
Who was injured by Pentico's purported act of trespass, and what form did that injury take? Idaho State Police Lt. Col. Kevin Johnson told the Idaho Statesman that Pentico had been banned from the Borah Building pursuant "at the request of the governor's office."
But the "office" -- meaning the tax-fattened claque who "works" in the physical offices in question -- does not own that building. When that administration leaves, new tenants will arrive and make similarly disastrous use of those facilities. But they are owned by the public. If the public owns the property, a member of the public cannot trespass on it.
Furthermore, far from acting as the "authorized agent" of the owner(s), Corporal Pattis was illegally attempting to expropriate one of the actual owners; it is as if he had handcuffed a landlord who strode up to the front door of a residential property he owned to slip a "past due" notice into the tenant's mail slot.
"We've got your back, Chris": Some of the scores of freedom activists who crowded room 504 in the Ada County Courthouse for Chris Pentico's sentencing hearing.
From the prosecution's perspective, the injury inflicted by Pentico when he quietly delivered a letter to the governor's staff must have been quite severe. They recommended that he be hit with a $500 fine (plus court costs), a 90-day jail sentence, and 2 years of unsupervised probation.
After painting a portrait of Pentico as an incorrigible recidivist offender deserving of stern treatment, the bright young lady representing the prosecution -- who was apparently tone-deaf to her own contradictions -- depicted the foregoing terms as the product of leniency that took into account the fact that Pentico "really hasn't been in any trouble before this."
Then just what the hell was the whole point of this?
In issuing his sentence, Judge Swain -- to his credit -- immediately dispelled the suffocating cloud of flatulent insinuations emitted by the prosecutor (whose name I'm deliberately omitting in the hope that she will grow up and do something useful with her life) regarding Pentico's supposedly criminal nature. This reflected, in part, the influence of State Rep. Pete Nielsen, a Republican who brought with him a letter signed by several other members of the state legislature.
Those paladins of the public weal were not so palsied with terror by the very thought of the fearsome Chris Pentico that they couldn't affix their signature to a letter attesting to Pentico's decency and civic-mindedness.
Judge Swain is up for reelection this year. I trust that he was alert to the presence in the courtroom of scores of well-mannered but attentive activists who would do everything they could to ensure his return to the private sector should he inflict an onerous sentence on Pentico.
Swain outlined what he called the four objectives of sentencing: punishment, deterrence, restitution, and rehabilitation. He quite sensibly said that the final three considerations didn't apply to Mr. Pentico, who had injured nobody and done nothing to merit punishment, let alone to display a need for rehabilitation.
Pentico was in "technical" violation of the trespassing statute, Swain insisted (incorrectly, as we've seen), but his offense was de minimis. Besides, his entire purpose was to exercise a function of citizenship that should be encouraged -- he was petitioning a representative for redress of grievances.
Owing to the nature of the "offense" and the obvious decency of the "offender," Swain dispensed entirely with the prospect of jail time or fines. He imposed a term of 30 days of unsupervised probation and a withheld sentence, the latter of which would be lifted and expunged from Pentico's record "when -- not if -- you finish probation successfully, as I'm sure you will," Swain explained.
A wave of relief and a ripple of applause coursed through the courtroom. Delighted as I was to hear Judge Swain summarily dismiss the prosecution's caricature, I didn't join in the applause, nor did a couple of other people who had come to support Pentico.
The problem here is that a man who did nothing wrong was convicted -- albeit in ephemeral fashion -- of a crime by a legal positivist judge. Sure, Judge Swain -- a well-spoken and personable figure -- did what he could to minimize the impact of that conviction.
But he still found a way to validate the idea that the state (in this case represented by the oddly amorphous entity called the "governor's office") has "rights" that trump those of citizens, and that the cold steel of handcuffs biting into one's wrists is a suitable reward for those who "defy" patently illegal "orders" from the state's armed enforcers.
Judge Swain's sentence was greeted with cathartic relief and left Pentico's friends with a sense that a partial victory, at least, had been won. Granted, clear-cut victories for individual liberty are are rare as pity from Stalin, or insight from Sean Hannity.
But now that it's clear Chris Pentico won't suffer further punishment for doing nothing wrong, his friends and supporters should take a long, sober look at exactly what was "won" in this case, and by whom.
I mean no insult, either overt or implied, to the wonderful people who had gathered in support of Chris Pentico when I say that the applause at the end of the trial prompted me to recall Gibbon's observation: "A nation of slaves is always prepared to applaud the clemency of their master, who, in the abuse of absolute power, does not proceed to the last extremes of injustice and oppression." I'm willing to assume that the applause was entirely for Chris Pentico's courageous resolve, not for the statist judge who found a low-key way to validate the demands of Idaho's ruling class.
Chris Pentico (along with some friends) is interviewed by former Idaho state legislator Elizabeth Allan Hodge:
In my original version, written in a fog of sleep-deprivation (hey, with six kids including a newborn, sometimes I have to work well beyond the wrong side of midnight), I referred to Elizabeth Hodge as a current, rather than "former" legislator. That version also had a misfire caught and corrected by "rick" in the comments thread.
On sale now.
Dum spiro, pugno!
at 10:00 AM
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Today the NY Times reports that 89-year-old John Demjanjuk arrived in Munich to face charges of having murdered concentration camp inmates 65 years ago. Mr. Demjanjuk was previously exonerated of similar charges in Israel, and all of the witnesses are dead. But prosecutors say they have 'documentary evidence' against him.
Whatever the truth may be about Mr. Demjanjuk's conduct decades ago, a larger truth is illustrated by his travails. To paraphrase the late Leona Helmsley -- justice, like taxes, is for the 'little people.'
The elderly Mr. Demjanjuk, now facing a 'double jeopardy' prosecution from which U.S. courts failed to protect him before stripping his U.S. citizenship, is being held to strict account for events which allegedly occurred in his young adulthood.
Meanwhile, the war criminal Henry Kissinger, who murdered hundreds of thousands of innocents with his ghastly bombing of Cambodia, freely walks the streets of Manhattan. And so does the war criminal George W. Bush, who similarly slaughtered hundreds of thousands when he invaded Iraq in search of WMDs which he knew to be wholly fictitious.
Let us pray that divine justice is a reality. Because here on the earthly plane, equal justice for all is a myth which probably never has been witnessed during the course of human existence.
I offer the following in the hope that it might be some small consolation.
One morning while driving through Star a suburban pulled from the rather ostentatiously appointed estate of our whiskey-in-my-cope-I-ain't-drunk-ossifer governor and followed me into town. Sure enough, Butch boy was being driven to work by a tax trough parasite and enjoying his morning paper.
When we reached a point where the road widened to four lanes they pulled up next to me at a stop light. Up close and personal so he could look me in the eye - I flipped him the bird right to his face. Made my day . . .
Sic Semper Tyrannis
Good morning and happy belated Mother's Day to Korrin:
"But now that it's clear Chris Pentico won't suffer further punishment for doing nothing wrong, his friends and supporters should take a long, sober look at exactly what was "won" in this case, and by whom."
You are kidding, right? Of course he'e gonna be punished again.
Here is a link that I got through FaceBook about police conduct: http://www.nostate.com/1969/only-guilty-people-say-they-do-not-consent/. I''m gonna link this column to my FaceBook page when I sign off.
Thank you for writing this column.
mongol Doc Ellis 124
you missed the chance at a funny...
instead of saying, "I'll warrant that he certainly bent over backwards for somebody."
...you could have said, "i'll warrant that he certainly bent over for somebody, but it wasn't backwards."
Anon at 5:39... You must have stopped at Eagle and State. LOL!!! I have to admit that I've been in Star for over a year and never bothered to look for the "Guv".
And, yes, it matters which way you "bend"! Ha!
Still, it's absurd that someone should endure this harassment at the hands, and in the very edifices built using money stolen from yourself and your own ancestors, and get a backhanded "my bad" with no apology.
To think that merely delivering a letter would cause such grief. I thought Idahoans were better than that. At least Ada county, unlike my former hometown, hasn't sent an APC and armed goons to terrorize fringe Mormon sects!
Wasn't it in Idaho some months ago that officers of the state bureau of wildlife were harassing the owner/operator of an elk farm?
I used to think of Idaho as being somewhat more free than some other states (such as Utah, where I live), but I may have been seriously mistaken...
There is no freedom in this country anymore. Everywhere you turn it is fast devolving into a totalatarian nightmare.
Have any of them ever READ the Constitutuion?
Freedom of speech, freedom of assembly, "of the people." Good Grief.
Sic Semper Tyrannis,
He,he,he! How lucky for you to be in the right place at the right time to offer such a well deserved salute to one of the United State of America's feudal viceroys. They regard us as nothing more than cannon fodder and helots, so it's only fitting that we, on occasion, are able to return our inner most sentiments up close and personal to the tax-fattened scum sucking vermin. May they incessantly inseminate themselves!
(I know you're an atheist, but I'm going to say this to you anyway: God bless you, Sic!)
Mr. Grigg writes:
"I didn't join in the applause, nor did a couple of other people who had come to support Pentico.
The problem here is that a man who did nothing wrong was convicted -- albeit in ephemeral fashion -- of a crime by a legal positivist judge."
You're a clear thinker, Mr. Grigg. I don't know if you realize how truly rare and refreshing your rational ability is. Rational ability, on its own, is worthless, unless coupled with a properly-oriented moral compass, with which, by God's grace, you are obviously blessed.
I encourage everyone to get out there and thoroughly saturate the internet, as well as your work and personal environments with humble, clear, and sound ideas, founded on an upright conscience. You can only beat lies with truth. Let's get the truth out there. Refuse to accept, even tacitly, the ideas of ignorant or violent men. Recognize, with Ludwig Von Mises that ideas have consequences. Bad ideas invariably lead to violence and violations of rights. Adhering to the truth may some day get us snuffed by violent men, but at least we won't be complicit in the deaths of any innocents.
Keep it up, Mr. Grigg. More and more people are arriving at a better understanding of human nature due to writing such as yours. And once they better understand human nature, they will better understand how to treat their fellow men: it will lead to a real peace that flows from the individual outward.
MoT - ID's top tax trough parasite is easy to find. Otter lane at Star road and the the Boise River. It's not the kind of place where we mere tax slaves live.
Anon 5:25 - you sentiments are accepted in the spirit in which they were given. Glad you appreciated it.
Anon 1:22 - ID state lawmakers have over the last 30 years yielded the principles of freedom and liberty to entitlements. ID is a welfare queen state - if the fed gov offers a bribe (hwy funds, land mgmt fund, title IVD funds - you name it we are on the dole) our so called leaders will stumble over themselves to stick their snouts in the tax trough.
Sic Semper Tyrannis
I don't understand. Was he convicted by a judge or a jury? If this is a "magistrate" does he have an appeal for trial de novo to a higher trial court?
Is he going to appeal this appalling conviction?
Jerri, Mr. Pentico waived a jury trial; the guilty verdict was delivered by Magistrate Judge Swain.
I think one of the biggest reasons for Swain's sentence, which effectively terminates itself in 30 days, was to foreclose the possibility of an appeal.
To Sic Semper Tyrannis -
As a follow-up to my earlier post - I can appreciate what you stated regarding Idaho's "leadership". The same can be said about the legislature and governor of Utah, both of whom are more than happy to live at the teat of the Federal Government.
Brings to mind “listings of people”… people more easily intimidated and controlled by a tar and feathering they receive as a result of the foolish acts of others that are associated in the public mind with them. This public smear causes them to break off all networking, lay low, and do nothing to resist the rise of tyranny. Gibbon’s famous quote says it well. "A nation of slaves is always prepared to applaud the clemency of their master, who, in the abuse of absolute power, does not proceed to the last extremes of injustice and oppression."
"Augustus was sensible that mankind is governed by names; nor was he deceived in his expectation, that the senate and people would submit to slavery, provided they were respectfully assured that they still enjoyed their ancient freedoms." - Chapter 3
In the eight years of the Cheney-Bush dictatorship, that is exactly what happened. Almost half the American public swallowed their line of Big Republican Government bullshit hook, line and sinker. They believed every goddam lie they were told, because it came out of the mouth of some filthy maggot calling himself a "Republican." Bush was a saint. Literally. I was told that by a True Believer Christian woman. Her words exactly: "Our President is a saint." Cheney was a real man. (Someone who got 5 deferments from going to Vietnam.) Any Republican was a species of superior human being, and all Democrats were traitors ans scum. They even made "liberal" into a cussword.
Well, children, you made your beds. Now you will have to lie in them. Have fun. If you voted for them, shut your mouth and enjoy the choices you made.
If you had enough functioning brain cells to see what the Bush cabal and the RepubliNazi Party were doing, and are still trying to do, join with me in jeering at Republicans. Or in selling them a bridge.
Just like Adolf Hitler and the Germans after the war, who in the beginning voted for him 77% and afterwards called him a monster, today some Republicans can find it in their shriveled little dry hearts to call Saint Bush a failure.
Did you see the latest poll? Evangelical Christians are the most likely to advocate torture, more so than mainline sects or Catholics. I guess if you can believe Bush was a saint, and you can believe in "The Rapture," which is nowhere in the Bible but was invented by a convicted child molester in the 19th Century, you can believe anything Dick Cheney says. They make me sick.
From Aesop's Fables:
Once upon a time a Wolf was lapping at a spring on a hillside, when, looking up, what should he see but a Lamb just beginning to drink a little lower down. "There's my supper," thought he, "if only I can find some excuse to seize it." Then he called out to the Lamb, "How dare you muddy the water from which I am drinking?"
"Nay, master, nay," said Lambikin; "if the water be muddy up there, I cannot be the cause of it, for it runs down from you to me."
"Well, then," said the Wolf, "why did you call me bad names this time last year?"
"That cannot be," said the Lamb; "I am only six months old."
"I don't care," snarled the Wolf; "if it was not you it was your father;" and with that he rushed upon the poor little Lamb and WARRA WARRA WARRA WARRA WARRA ate her all up. But before she died she gasped out:
"Any excuse will serve a tyrant."
Lemuel, I guess the lesson learned here, if one were to have ears, is not to trust any governmental entity regardless of its red or blue state affiliation. The problem, as I see it, is that Christians have put more faith in government than it ever deserved. One should always hold government in suspicion. Rather than wait for them to DO something for you or TO you wouldn't it be better to go about the business of making life better without their permission. The fact is we don't need them for much of anything that we can't do for ourselves.
Thanks for the observations. One of the (to me) most significant sayings of Jesus was: "My kingdom is not of this world." Moreover, Satan took Jesus up into a high place and tempted Him, showing Him "all the kingdoms of the world, and all the glory thereof," and said to Jesus, "All this will I give thee, if thou wilt bow down and worship me."
That means all the kingdoms of this world and all the glory thereof belong to Satan, and are Satan's property to bestow on his servants.
Christian churches and Christians should stay the hell out of politics. Politicians are servants of Satan, and so are those so-called "ministers" who meddle in politics.
Mother Teresa never gave a single penny to any political party or cause. She spent it all on those who needed it.
Pat Robertson, James Dobson, Ralph Reed, Richard Mellon Scaife and Tim LaHaye, are you sons of bitches listening?
I'd include Jerry Falwell, but he can't hear us any more over the roaring of the flames.
Meanwhile, any excuse will suffice for a tyrant. Especially the excuse that they are "doing God's work." Or "keeping us safe."
The only thing that will "keep us safe" is a guillotine in the public square, reserved for those politicians who make more than minimum wage.
So, is the moral to this story to always go for a jury trial? It seemed as if Mr. Pentico had a pretty good following. Maybe those folks would have made up a portion of the jury. Just a thought.
I hate to disagree here on this site but Lemuel you make a simple yet common mistake in inturprating scripture. Satan said: "All this will I give thee, if thou wilt bow down and worship me."
"That means all the kingdoms of this world and all the glory thereof belong to Satan, and are Satan's property to bestow on his servants." This is the wrong view.
The reason that Jesus didn't bow down is becauce He knew what Satan was saying was a lie. Satan did not have any authority to give anything so Jesus. All the land, cattle and kingdoms belong to God and Jesus knew that they would be his as well. Jesus was raised from the dead and given all authority over land, cattle and kingdoms.
Why should we as christians be kicked out of the public square and out of the public arena? As joint heirs with Christ they belong to us. I believe we are to tend to the garden not move out.
Remember to pray daily "Thy kingdom come, on earth as it is (already) in heaven."
Take dominion man, don't "bend over"!
This is not the first such case in Idaho. I encourage you to look at the Dr. Peter Rickards case in Elmore County.
Dr. Rickards was convicted of "trespassing" at a PUBLIC HEARING held on possible construction of a nuclear plant near Mountain Home. The judge frankly gave Rickards a raw deal. http://www.magicvalley.com/articles/2008/12/23/opinion/reader_comments/151424.txt
Whether you are for or against nuclear power should not be the issue here. The issue is judicial brutality.
What happened to Chris Pentico, and Pastor Steve Anderson, as described by Will Grigg, are outrages, and how can anyone not be infuriated?
But I wish that Will would list "action items" at the end of each piece. Because it is worthless to be educated and alarmed, and yet do nothing.
For example, I would like to write the Idaho evil-doers, and the Arizona Border Patrol, polite letters of rebuke. Will, could you possibly start providing suggestions about how to actively protest these travesties? And how to lend support to the wrongly persecuted?
Anonymous, that's a very good suggestion; something of that kind is badly overdue. Thanks!
That prosecutor should be brought up on the carpet for poor conduct unbefitting an agent of the state. Her hyperbole in describing the accused was shot down clearly by the judge. She should have been much more professional in her presentation to the court. The point is, she is not there to win or lose, she is just there to present the case!
"But I wish that Will would list "action items" at the end of each piece."
This is a wonderful idea because my first inclination is to call and shriek at people for things like this. Constructive advice and laying out of steps would be good.
Can anyone explain what a "positivist judge" is? Or positivist law? I looked it up but I don't understand it.
I Hate Bobby Flay --
Please forgive me for throwing the term "positivism" without providing a suitable link or other means of defining it.
Judge Andrew Napolitano laid out a pretty concise explanation inA Nation of Sheep. His definition is that positivism is the doctrine that “the law is whatever those in power say it is.... Under positivism, whoever or whatever controls the government, whether a majority or a minority, always rules and always gets its way.”
Positivism, he continues, “is perhaps the most primitive legal theory, having evolved only slightly from the sort of justification that could be offered for following the demands of a tribal chieftain or general-turned-dictator. The theory promotes fear rather than respect.... The problem today in America, the greatest and gravest threat to personal freedom in this country, is that the positivists are carrying the day.”
Doug @1:55 am,
A strange thing about things of the soul which are beyond the power of language: We can say things which appear to be contradictory but are both true. The sayings of Jesus appear to be full of contradictions, but are not really so. You and I are both correct, but we are talking here from different levels of truth - me from a lower, you from a higher.
Of course this world is God's - He made it. He made Satan too. But the world has been given over to Satan to administer, because God's character is love and forgiveness and Satan's character is justice and punishment, and Satan thinks this world is his. Just like I think my bank account belongs to me. When I die, how much of it will I take with me?
Ah so. Quite. I am a fool, just like Satan.
Some days I talk from one perspective, some days from another. Rather than a long religious discussion here, when the real topic is civil liberty, please go back and see what I wrote near the end of the comments to the 4/30/09 article "Pinning Us Down" - first what I wrote to Dixie Dog @5:39 am then 3 comments in a row to Shay's Rebel right near the end. Those comments agree with your higher perspective 100%.
About suggestions for action items, I have one. We need some enterprising engineer to devise an invention--a tool, clothing, something--that would confer protection against tasers. Would it be a violation of libertarian principles to organize an attempt to bankrupt taser with lawsuits?
I am reminded of that famous psychology experiment regarding torture. Clearly the taser is a torture device in the hands of combat-high junkies. The SS never had it so good...
Thanks Will, and good on me, I have Judge Napolitano's book, I just haven't read it yet. But I did look up the passages you mentioned.
Will, have you seen this?
43 kids stun-gunned at prisons' Take Your Kids to Work Day
The article about the 43 children said that "in nearly every case, the guards had permission from parents or grandparents to administer the 'electronic immobilization devices...' "
Isn't that the strangest thing? That parents would take their children to a prison in the first place is inconceivable, but once there they leave them in the care of someone else to whom they have given permission to apply a stun gun? These people are not even human.
I Hate Bobby,
What Mr. Napolitano (while he is a very reasonable man, I still refuse to recognize a State-issued title) says about positivism is true, but I don't think it comes down to the definition of positivism. I think his definition is more accurately applied to "tyranny."
Legal positivism is the idea that the mere act of proscribing an act can make performing the act immoral. Conversely, positivists believe that legalizing an action makes it moral.
For example, many positivists believe that abortion is moral not because they think the act is good in itself, but because it is legal. Of course, many positivists only believe that the moral nature of an act is changed by legislation when it suits their fancy. You will seldom see a legal positivist liberal, who thinks that abortion is moral because it is legal, take the view that carrying a firearm is moral because it is legal.
You've doubtless heard many people say, "The law is the law," or if someone is shot while running from a badgethug, "That's what you get for running from the police." Anyone who speaks those words in favor of legislation that proscribes behavior that harms no one is a legal positivist. A legal positivist is like an abused woman: she is so conditioned by the husband's violence that she actually believes "Well, he wouldn't have hit me if I hadn't done something wrong." Unfortunately, the abused woman believes that "Something wrong," could be something as innocuous as sneezing in a way that the man in power did not like.
The abused woman really and truly believes, in her Stockholm syndrome delusion, that the man is justified in using violence against her, based on actions she performed that harmed no one.
In its essence, that is what legal positivists are: abused women who approve of violence being used, not to protect someone from a real threat, but to make them act according to their own wills.
I have run into many people who believe that slavery was moral simply because it was legal. These are actually people who believe that it was moral for police to enforce laws against runaway slaves. Or against blacks sitting in the front of buses.
Legal positivists want to make people act in accordance with their wills. They want to impose an arbitrary, created order on other people. Sane people, on the other hand, recognize law for what it is: a codification of the already-extant moral law. But we cannot simply codify every aspect of moral law: much of the moral law is spiritual in nature. We cannot use physical violence against spiritual threats. It is impossible to proscribe sin. The only just law is that which proscribes behavior that actually and directly harms the life or property of others. (Murder, theft, fraud, etc.) The law will not be effective in making anyone live according to its precepts, but it will serve as a codified vehicle for remuneration to the victim of the aggressor's action, after the fact.
The legal positivist is like a child who obeys his mother when she tells him not to hit his sister. He obeys not because he recognizes that it is wrong in itself to hit his sister, but obeys "because Mommy said so, and if I don't, I get spanked."
Legal positivists live with a craving for power over others. They must use political means (read: coercive violence) in order to achieve their ends, because their ends are not in accord with the natural law. It takes a bit of violence to force the square peg of human nature into the round hole of their perception of what human nature should be.
The rest of us, who recognize the source and purpose of all real law, simply want to be left in peace, to live out our lives in voluntary, mutually-beneficial social interaction.
In a nutshell, if an act (distilling whiskey, owning a firearm of any type, caliber or rate of fire, prostitution, or drug use) doesn't really and actually violate (against the person's will) the life or property of others in itself, and you want to prohibit that behavior, you are a legal positivist.
We do not need to approve of immoral behaviors that do not violate other people's life and property. But just because they do not have the right (according to the moral law) to perform an immoral action, it does not mean we have the right to pick up a up a gun to stop said immoral behavior. Furthermore, there is absolutely no rational justification on any level to use violence against men who do not only not violate the life or property of others, but do nothing immoral at all. Physical violence must only be used against actual physical threats to physical people and their physical property.
Positivists fail to recognize this.
Thanks Sans Authoritas. In the Before Time I was at least a positivist law enabler in that I have uttered the words "the law is the law" and "I don't agree with such-and-such but it is the law and what if everybody blahblahblah." I blush with shame.
How lucky for the passers of the pos laws that they don't suffer any consequences when they break them. Our Senator-for-life, Richard Shelby, was asked by a constituent for help in his son's case who received a life sentence without parole after a confidential informant (and his employee) accused him of dealing drugs. Even though there was zero evidence and the CI recanted, Shelby answered the man, "We must take a strong stand... I support strict punishment for individuals involved in... illegal drugs." Shelby's son was later caught bringing hashish into the country and was fined $500. (Now he is strongly standing against internet gambling. I hate him too.)
Remember Carl Rowen? While not a legislator, he was an Elite, and therefore exempted himself from the laws he advocated for everyone else--a complete ban on the sale or possession of handguns (except the beloved police) and imprisonment for anyone caught with a handgun, whether it was used or not. Then he shot a teenager for trespassing on his property.
I doubt whether these people cared about the morality of laws so much as they cared about their moral authority to rule over others.
This weekend, President Obama addressed the subject of abortion in his commencement speech at Notre Dame University. He said,
'Understand – I do not suggest that the debate surrounding abortion can or should go away. No matter how much we may want to fudge it – indeed, while we know that the views of most Americans on the subject are complex and even contradictory – the fact is that at some level, the views of the two camps are irreconcilable. Each side will continue to make its case to the public with passion and conviction. But surely we can do so without reducing those with differing views to caricature. Open hearts. Open minds. Fair-minded words.'
All well and good. But of course, the one thing which the president did NOT offer was for the U.S. fedgov to simply withdraw from a subject over which it has no constitutional authority.
As a thought experiment, I ask people to project what would have happened if the U.S. Supreme Court had declined to get involved in the Roe v. Wade case in 1973.
At that time, four states had decriminalized abortion, and similar legislation was pending in more than a dozen others. My guess is that somewhere between half and two-thirds of the 50 states would have liberalized abortion. Others such as Pennsylvania, Louisiana, Utah, and probably a dozen more, would have kept it illegal.
Pro-choicers would have denounced the fact that a right allegedly found in the 'penumbra' of the constitution was not universally available. Similarly, pro-lifers would have deplored the fact that large states containing the majority of the U.S. population had decided to allow the killing of unborn babies.
Nevertheless, such a gnarly patchwork of laws would have acknowledged the fact that the U.S. is a culturally variegated place, where 'one size fits all' ukases from the fedgov rub nerves raw on both sides of issues.
Barack Obama, of course, imagines a conciliatory grand pow-wow whose fudges will be administered by his goodself and his legions of fedgov bureaucrats. Nowhere in his sensitive, thoughtful speech does he acknowledge that the comically flawed Roe v. Wade federal power grab made him part of the problem, not part of the solution ... and that the best thing he could do to promote reconcliation on this contentious topic would be to pull his fedgov Leviation out of the way, and turn the matter back over to the states and the people where it rested before and where it still belongs.
I Hate Bobby,
I'm sure 95 percent of the people who read this blog were, at one time or another, legal positivists, rabid or otherwise. I'll be the first to admit that I was once numbered among them. We've all done our share of blushing.
Thanks be to the grace of God and logic, I am no longer a legal positivist.
As for such politicians and their natural hypocrisy? Well, Jesus had something to say about them, in Luke 11:46: "But he said: Woe to you lawyers also, because you load men with burdens which they cannot bear, and you yourselves touch not the packs with one of your fingers."
Now, "Woe" isn't something that is often decisively visited upon politicians in this world, though politicians often lead very sad, tragic lives. Jesus's indication of an unpleasant reception at his judgment seat, should they fail to change their ways, should be a lesson to the rest of us not to become like them.
Politicians don't have any more "moral authority" than the rest of us, I Hate Bobby. They only have more power to impose their wills.
If I tell you not to murder someone, I've just exercised as much moral authority as any president or king could ever wield. I have authority to say this only because I echoed the natural and divine law. Even a four-year old can have as much authority as a king or myself, if he also echoes God's law. Positive law is only binding if to break it means it breaks the divine law. For example: failure to stop at an octagonal red sign at an intersection is not an intrinsically evil act. Failing to stop at an intersection is only evil because if you do not stop at the sign indicating an intersection, you recklessly put others in danger.
Sans Authoritas, No, No, God forbid! I did not mean that politicians have "moral authority." My remark was meant as sarcasm because they think they have moral authority. They are amoral and I don't recognize their authority over me. I don't even like the words "consent of the governed" in the Declaration of Independence. Just who among all the equally created (white men) did Mr. Jefferson think needed to be "governed?"
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