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The Political Animal

Citizen Bloomberg & the Fallacy of Appeal to Efficacy

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http://www.jesselenz.com/

When will it stop? I’m asking. When? These are supposedly educated people. (If all the supposeds in the world were actuals, the world would be a far, far better place than it has ever been before: all the cows would come home to hear the fat lady sing.) When will the people who would lead us, when challenged on their wrongful acts and policies, cease to introduce in argument the red herring of the irrelevant appeal to efficacy? When they cease to try to mislead us or themselves, one might answer. Or when reporters begin regularly to call them on it.

Challenge members of the George W. Bush administration, then or now, on that administration’s torture policy, and you will hear in response how many terrorist plots the policy thwarted and how many lives were accordingly saved.

Challenge figures in the national security apparatus during the current administration about sweeping and excessive data collection on American citizens, and you hear from every Tom, Dick, and Obama how many terrorist plots the policy thwarted and how many lives were accordingly saved.

Challenge his royal mayor of New York – Bloomberg the First, by the Grace of Billions, of the Five Boroughs and its lesser Islands, Head of the City and Defender of the Untermed Out – about the racial profiling at the foundation of New York City’s Stop-and-Frisk policy, and he will reply,

Every day Commissioner Kelly and I wake up determined to keep New Yorkers safe and save lives. Our crime strategies and tools – including Stop-Question-Frisk – have made New York City the safest big city in America. And I’m happy to say we are on pace for another record low number of shootings and homicides this year because our police officers follow the law and follow the crime.

They fight crime wherever crime is occurring, and they don’t worry if their work doesn’t match up to a census chart. As a result, today we have fewer guns, fewer shootings, and fewer homicides. In fact, murders are 50 percent below the level they were 12 years ago when we came into office – something no one thought possible back then.

Stop-Question-Frisk – which the Supreme Court of the United States has found to be constitutional – is an important part of that record of success. It has taken some 8,000 guns off the street over the past decade – and some 80,000 other weapons.

….

The fact that fewer guns are on the street now shows that our efforts have been successful. There is just no question that Stop-Question-Frisk has saved countless lives. And we know that most of the lives saved, based on the statistics, have been black and Hispanic young men.

It’s worth remembering that as recently as 1990, New York City averaged more than six murders a day. Today, we’ve driven that down to less than one murder a day.

Think about what that change really means: if murder rates over the last 11 years had been the same as the previous 11 years, more than 7,300 people who today are alive would be dead.

Stop-Question-Frisk has helped us prevent those and other crimes from occurring – which has not only saved lives, it has helped us to reduce incarceration rates by 30 percent, even as incarceration rates in the rest of the nation have gone up.

That’s why people across the country and around the world have come to learn about how the NYPD has been so successful, and how we’ve driven crime down to record lows. We are the poster child that everybody wants to follow.

The issue of racial profiling is a legal one. It is a legal issue because it is a moral one. The judge based her decision on Fourth and Fourteenth Amendment violations, and asserted her power of injunctive relief based upon those violations, and the moral considerations around them, not on the effectiveness of stop and frisk.

The effectiveness of stop and frisk is an entirely separate matter, and Bloomberg’s argument in support of the policy on those grounds is markedly deceptive and easily challengeable in its own right. I presented that case here.

Bloomberg followed the comments above by stating,

Throughout the trial that just concluded, the judge made it clear she was not at all interested in the crime reductions here or how we achieved them. In fact, nowhere in her 195-page decision does she mention the historic cuts in crime or the number of lives that have been saved.

She ignored the real-world realities of crime…

The mayor is a bright enough man to know that the reason the judge was, by Bloomberg’s lights, “not interested” in those issues is that they were not the issue before her. She did not rule on the effectiveness of stop and frisk, but on the constitutional violations it was argued before her the policy entails. Yet contrary to what Bloomberg claims, Judge Shira Scheindlin was cognizant of the “real world.”

With regard to the public interest, the City has expressed concern that interference in the NYPD’s stop and frisk practices may have a detrimental effect on crime control. However, as previously noted, I am not ordering an end to stop and frisk.

However, unlike the mayor, Judge Scheindlin properly understood the legal and ethical issues that were the purview of the legal challenge brought before her.

Furthermore, as in Ligon, it is “‘clear and plain'” that the public interest in liberty and dignity under the Fourth Amendment, and the public interest in equality under the Fourteenth Amendment, trumps whatever modicum of added safety might theoretically be gained by the NYPD making unconstitutional stops and frisks.

If one does not recognize the essential germaneness of this point, if, worse, one chooses demagogically to ignore the essential germaneness of this point, then one does not understand or chooses to ignore the very idea of American democracy and constitutionalism, and the purpose of the Bill of Rights.

Judge Scheindlin states later,

I have always recognized the need for caution in ordering remedies that affect the internal operations of the NYPD, the nation’s largest municipal police force and an organization with over 35,000 members. I would have preferred that the City cooperate in a joint undertaking to develop some of the remedies ordered in this Opinion. Instead, the City declined to participate, and argued that “the NYPD systems already in place” — perhaps with unspecified “minor adjustments” — would suffice to address any constitutional wrongs that might be found. I note that the City’s refusal to engage in a joint attempt to craft remedies contrasts with the many municipalities that have reached settlement agreements or consent decrees when confronted with evidence of police misconduct.

If the overriding value is effectiveness – efficacy – what works – then we might spy on everyone without regard to any foolish notions of private lives and individual integrity, we might torture every suspect and hope we get the goods on him – we can claim we did, anyway – and we might even more surely lock up every black male under the age of thirty-five in a Supermax prison. Those policies will surely diminish the costs of terrorism and lower the black on anybody crime rate.

If that rhetorical flight strikes as absurdly hyperbolic – absurdly because it is so clearly excessive and transgressive of bounds – bounds somewhere that most of us at some point would finally notice and observe, then that is the point. Before we can stand on the efficacy of a policy or course of action, we need rise first on an ethical foundation rooted in our values and the principles of our constitutionalism. When challenged on ethical grounds, one cannot resort to leaping onto functional planks. Even if one wishes to argue that practical considerations – what works and what does not – have influence over formation of our ethical understanding, still one recognizes the primacy of the moral ground of consideration and can argue honestly only in acknowledgment of it and by addressing it.

As long as our Bloombergs and our Cheneys (oh, the former surely thinks himself different from the latter, don’t you think) arrogantly disperse through the filter of their commanding judgment – their rule of the real world – our visionary, liberating, and founding ideals, they do not serve, but disserve us. And they argue badly, too. Or boldly deceive us.

AJA

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The Political Animal

Cruz vs. Feinstein on the 2nd Amendment: the Scorecard

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Conservatives and liberals late last week were touting the Second Amendment dustup between Sens. Cruz and Feinstein at a Judiciary Committee hearing over a proposed assault weapons ban. Both sides think they hit walk off homeruns, which is usually a reasonably good sign that neither did, and so it was in this case. Feinstein – and all those cheering her – further confirmed a conviction among many conservatives that liberals cannot reason very well and rely instead on emotion. Cruz actually made a better show of himself, attempting in a calm presentation and even voice actually to make a carefully reasoned argument attentive to language. The problem was – Cruz being a conservative, after all – that his argument was confused.

Feinstein attempted two kinds of counter argument to Cruz’s constitutionally-based questioning of her. Both, as we see from the liberal cheering after the fact, are good at rousing partisans, but absent any kind of accompanying and sustained argument in reason, neither was worth very much. Feinstein’s first effort was the fallacious Argument from Umbrage: I take offense; therefore I am right. Lecture me like a sixth grader, she objected? You must be wrong. The simplest and most ineffective form of this argument was displayed not long ago by Peirs Morgan during his dismantling by Breitbart’s Ben Shapiro. (Yes, I know, it is a veritable psychological knot to observe intellectual pugilism while ardently desiring the defeat of both contestants, but credit where credit is due: Shaprio was poised, in control, and simply excellent.) The full force of Morgan’s Argument from Umbrage?

“How dare you!”

Mostly, Feinstein essayed an ethical appeal. Ethical appeals, drawn, in Aristotle’s Rhetoric, from the ethos or character of the individual making the argument have a number of sources, and one of them is that individual’s personal experience with the topic. Feinstein drew on her personal history with gun deaths – she ascended to the mayoralty of San Francisco as a result of the handgun murder, in his office, of her predecessor, George Moscone – and her own authorship of the prior, now expired assault weapons ban. She closed by asking Cruz to respect her position. This, of course, was a complete non sequitur. The point of contention was never their lack of respect for the opposing view, but their disagreement with it. Cruz could respect Feinstein’s view all day long, but he would still disagree with it, and, well, they would remain where they stand.

Feinstein’s argument, then, was almost all to the imaginative sympathies of her audience and not to its reason. There was one exception, however, rushed out near the end amid all of the other arguments as if she hardly knew the difference.

Incidentally, this does not prohibit — you used the word “prohibit” – it exempts 2,271 weapons. Isn’t that enough for the people of the United States? Do they need a bazooka?

Not incidental at all, but we’ll come to that.

Cruz, unfazed, observed in response that Feinstein “chose not to answer the question that I asked.”

He was right.

What, then, was Cruz’s argument to begin?

It seems to me that all of us should begin, as our foundational document, with the Constitution, and the Second Amendment in the Bill of Rights provides that the right of the people to keep and bear arms shall not be infringed.

Cruz then noted that the phrase “the right of the people,” which he called a “term of art” by the framers, also appears in the First and the Fourth Amendments. What Cruz was about to do was assert a logical parallel among the three amendments, and he used that phrase, “the right of the people” – distributing to each amendment a similar intent by the framers – as a rhetorical and conceptual anchor for the analogy. All very good. Now,

The question that I would pose to the senior senator from California, would she deem it consistent with the Bill of Rights for Congress to engage in the same endeavor that we are contemplating doing with the Second Amendment in the context of the First and Fourth Amendments. Namely, would she consider it constitutional for Congress to specify that the First Amendment shall apply only to the following books, and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights? Likewise, would she think that the Fourth Amendment’s protection against searches and seizures, could properly apply only to the following specified individuals, and not to the individuals that Congress has deemed outside the protection of the law?

Let’s patiently uncover where Cruz goes astray. In the case of all three amendments we have the right itself, as an idea, and the instances of its application, and we have the people it is applied to, who are afforded that right. The assault weapons ban is an attempt to limit the instances of application – specified firearms that may not be sold to the general public. It is not an attempt to proscribe particular classes of people or individuals from enjoying the right to bear arms. It is a proposed restriction on the instances of application of the right, not a restriction placed upon those to whom the right is applied. We can quickly see that in the case of the Fourth Amendment, Cruz has confused the terms. The analogy does not hold because in Cruz’s example, he has “specified individuals” being denied the right against unreasonable searches and seizures. The assault weapons ban is not a restriction on individuals, but instances – on specified weapons, not specified people. This is not analogous at all. The courts, indeed, are regularly, in light of technological advances, for instance, reconsidering the applicable instances of unreasonable searches and seizures.

In the case of his comparison of the Second Amendment to the First, Cruz is simply mistaken in believing that the latter is absolute. To clarify in terms of the analogy Cruz attempted, let’s distinguish first between the book as a form and its content of ideas. Firearms on this level alone are not easily analogized to a book, yet we might, still, proffer that the category of a personally borne firearm is analogous to the book form and that the technological variations in ordinance delivery of such a firearm are analogous to book content.

Certainly, there are no restrictions on the book as a form. Nor is the assault weapons legislation proposing a restriction of the firearm as a category, or form, of weapon either. However, there are restrictions in principle on such content as obscenity and child pornography and on incitement to violence as content that may not be consumed because they may not be lawfully distributed. Taking book as a generic term for a text, there are also restrictions on the right to read (because of restriction on the right to access) governmentally classified documents and commercially and personally private documents. These are just a few offhand examples, and there are, indeed, only a few restrictions proposed by the new legislation of the right to bear arms: recall, now, Feinstein’s reference to 2,271 exemptions from the proposed ban. With only a similar relatively small number of automatic and other assault weapons restricted, contrary to Cruz’s analogy, an analogy upholding the internal logic of specifically justified limited restriction in the case of both amendments is actually much better made, for such restrictions already exist within the purview of the First Amendment, which Cruz tried to use as his basis for opposing any kind of restrictions under the Second Amendment.

The scorecard, then? Cruz made better contact with the ball and committed his errors on more difficult plays, but he never brought a runner home. Feinstein played sloppy, but scored one run on a walk.

Cruz tried, but he failed. Second Amendment absolutists are crowing. They should be eating crow.

AJA

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