Against Self-Discover: The Irrationality of Finding Your True Self

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Frequently we hear about people undergoing the process of “finding themselves”. This concept is kind of preposterous once we truly contemplate it. This is not to say that it is impossible for an individual to not know “thy self”. Denying our true essence through methodically crafted facades acts as a social survival mechanism. Effectively shielding us from censure and other forms of social opprobrium. Self-deception being as common and conformity highly valued it would be foolish to question the desire for self-discovery. How much of our sense of self is truly a byproduct of internal processes and is absent of external influence? That is a question that remains to be satisfactorily answered.

It is more reasonable to question if the process of self-discovery is even worthwhile. It does seem to be somewhat of a hapless endeavor. Why? Simply because we are not stagnating. Our thoughts, opinions, and values are always being tested. Almost as if we are nothing more than the organic personification of Bayesian probability. Sure, we may have some attributes, normative preferences, enduring opinions. Do these semi-fixed characteristics truly signify resistance to the dynamism of existence?  No. When people do not adapt to new information, they merely find new ways of justifying their old beliefs. Holding the same premise, but adapting their reasoning. Someone may be a lifelong gun-rights activist, but their rationale for maintaining their principles may have evolved.

Self-exploration fails to capture the true quiddity of ourselves because we are ever-changing. Attend all of the vision quest retreats and peyote ceremonies you like, these experiences may very well lead you down a dead-end. Your perception of these experiences will likely change over time. Your opinions of the experience may even change while you are engrossed in such enveloping sensory journeys. The very malleable nature of man, especially from a psychological perspective, it is difficult to find a fixed sense of self. Layered upon the various cultural and normative identities we ascribe to ourselves, it possible that we perceive ourselves differently at various times and in divergent contexts.

Eg.) A man can be an American, veteran, Grandfather, Father, son, friend, baker, neighbor all at various times to various people.

All of these various categorical titles that can be ascribed to an individual may mean different things to them at different times.  Placing a get weight on the temporal and contextual influences driving our sense of selfhood.  To a certain extent, we may not even be the same person we are today that we will be tomorrow. The alterations may not be drastic, but although subtle substantial enough to cause minor qualitative changes in personality, cognition,  thought processes, normative values, etc. Colloquially we often hear young people talking about the need to “find themselves”. This analogous to Sisyphus perpetually rolling a boulder up a hill.  Due to our dynamic nature which is highly adaptive from an evolutionary perspective, progress is illusory.  This perceptual stalemate is only compounded by the fact that we often perceive ourselves incorrectly. Typically,  in an exaggeratedly positive light. Validating Adam Smith’s observations in The Theory of Moral Sentiments (1759). People do not want to believe view themselves in a negative light. Making self-depiction a form of self-pacification. The futility of attempting to pinpoint our selfhood cannot be understated. Unfortunately, our sense of self is subject to the illusions and psychological coping mechanisms that afflict human perception.

Caniglia- A Win For the Fourth Amendment

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Over the past couple of years, it seems as if the Fourth Amendment has been under attack. The headlines featuring stories of no-knock raids and other invasive search tactics used by the police. Despite the specter of an expansive police state looming above his, there is a silver lining. There have been some minor victories. One shining example was the Supreme Court ruling inCarpenter V. United States. In which, the high court ruled that conducting warrantless seizures of phone records to be unconstitutional. Another recent example of the court ruling in favor of the Fourth was Caniglia V. Strom.

In Caniglia, the court rejects the First Circuit’s expansive interpretation of the Community Care Taking Doctrine.  Caniglia had been quarreling with his wife pulled out a pistol and asked her to put him “out of his misery”. Mrs. Caniglia decided to spend the night in a hotel to allow her husband to calm down. After not hearing from Edward, she called Cranston police to conduct a welfare check on him. Responding officers reported that Mr. Caniglia seems to be stable. He consented to be evaluated at a psychiatric hospital providing police did not confiscate his firearms. Police later came by the home to remove the guns. Officers informed Mrs. Caniglia that Edward had consented to his firearms being seized. After several failed attempts to recover his guns, Caniglia sued under Section 1983. The First Circuit ruled that the actions of the officers were permissible under the Community Care Taking Doctrine. This decision would subsequently be overruled by the Supreme Court.

Community Care Taking Doctrine

Before reviewing the SCOTUS decision there is still one question that remains. What is the Community Care Taking Doctrine? It is the legal doctrine that enables warrantless searches and entry for noncriminal policing functions. Actions that promote the general interest of the community. This legal construct was devised in the early 1970s because of the Cady V. Dombrowski decision. The petitioner, a Chicago police officer, had been involved in a drunk driving accident. His service revolver had been left in the vehicle. The court viewed this action on the part of the local police department to be legitimate. Recovering the weapon would protect the public from it “… falling into the wrong hands”. Epitomizing the logic of the doctrine in one single case.

SCOTUS Decision

Justice Thomas in his written opinion sums up the major flaws of extending the Community Care Taking exception to Caniglia. A case that has the rare distinction of being a unanimous court decision.  In a nutshell, his concerns included the lack of justification in previous case law and the constitutional distinction between the home and vehicles. Making the claims that the police acted within the scope of the doctrine questionable.

Lack of Legal Justification

Justice Thomas direct states in his opinion that the First Circuit’s interpretation “… goes beyond anything this Court has recognized.”. The presumption being that generally, home searches require a warrant. By Thomas’s assessment, the lower court applied this doctrine merely because the nature of the search was noncriminal. The conditions of a search being permissible under the doctrine must be for purposes outside of a criminal investigation. The logic in Cady was specific to impounded vehicles already in police custody. It is reasonable to permit officers to assist motorists in trouble on the roadways. However, this privilege allotted to facilitate officers in completing their civic duties should not be viewed as an “… open-ended license..”.

Thomas holding the Care Taking Function to the parameters of Cady establishes effective limits on the doctrine. Favoring the First Circuit’s decision would only further erode the Fourth Amendment. Why?  Since our legal system is influenced by English Common Law, past case precedence directs future court decisions. If there was a case history justifying an expansive interpretation of the doctrine, the logic would have to be continued in subsequent cases. Only further eroding our Constitutionally held right to privacy and baseless searches.

The Constitutional Difference between the Cars and Homes

From the perspective of the Fourth Amendment, there is a difference between the right of privacy in the home and one’s vehicle. This was a point held by Justice Thomas. He expresses in his opinion that the core of the Fourth Amendment was that a person could retreat to their home free of any undue inference from the government; Citing Florida v. Jardine. A major caveat being the instance of exigent circumstances.  A point of argument the First Circuit failed to establish, considering if Mr. Caniglia was a threat himself, action would be necessary immediately. Not hours after the fact. Leading Justice Thomas to state  “…First Circuit… goes beyond anything this Court has recognized..”. Because the officers lack both a warrant and consent of the owner and effectively violated the sanctity of his home.

The Community Care Taking Doctrine has traditionally been applied to vehicles. In the corpus of case law, there has always been a different expectation of privacy in the home. Carroll V. United States, one of the first SCOTUS cases to address automobile searches found that the mobile nature of cars made warrantless searches crucial. However, a house is a stationary private property. Outside of the scope of extenuating circumstances or a warrant in hand, police entering the home is a civil rights violation. The officers who seized Mr. Caniglia’s guns were out-of-line.

Caniglia v. Strom- A Triumph for the Fourth Amendment

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Over the past couple of years, it appears as if the Fourth Amendment has been under attack. However, despite the headlines being flooded with stories of no-knock warrantless entries ending in tragedy, there still have been some minor victories. One shining example was the Supreme Court ruling in Carpenter V. United States (2018). In which, the high court ruled that conducting warrantless seizures of phone records and tracking the location of cellphone users be unconstitutional. Back in May, the Supreme Court once again did the Fourth Amendment justice in its decision in Caniglia V. Strom (2021). In its ruling, the court implemented effective judicial limits on the Community Caretaking Doctrine

The SCOTUS held that this legal construct that has been traditionally applied to automobile searches did not extend to the home. Some legal experts such as Josh Blackman may have criticized the ruling for lacking any discussion of “originalism”. Regardless of the imperfect logic upholding this ruling it effectually upholds the sanctity of our homes. Reinforcing the notion that the home is still in fact our castle. 

What Is The Community Care Taking Doctrine?

The Community Care Taking Doctrine was devised in the early 1970s as a result of the Cady v. Dombrowski (1973) case. The petitioner, a Chicago police officer, had been involved in a drunk driving accident and had left his service revolver in his vehicle. The court viewed this action on the part of the local police department to be legitimate. Recovering the weapon would protect the public from it “… falling into the wrong hands”. Operating within the public interest absent any intentions of criminal enforcement. While Cady may set the stage for warrantless searches for noncriminal purposes it never directly addresses the application to the home. The doctrine has over the years has been expanded to justice application to homes. One notable example being the United States v. Rohrig (1996), where police entry an unlocked home due to a noise complaint.

There is a long case history of warrantless searches of automobiles pre-dating the advent of the Community Care Taking Doctrine. Starting with Carroll v. the United States (1925) citing the mobile nature of cars necessitating the need for warrantless searches. The courts have also ruled in a subsequent case that there is a lower expectation of privacy in automobiles. Making cars distinct from houses in Fourth Amendment jurisprudence. In Caniglia, this distinct was used to curb the First Circuit Court of Appeals expansive interpretation of the doctrine. Justice Thomas even stated in his opinion that the First Circuit’s verdict “… goes beyond anything this Court has recognized…”.

The Facts of Caniglia v. Strom

The case stems from an argument between spouses Edward and Kim Caniglia. Mr. Caniglia became upset and brought out a pistol requesting his wife to shoot him. Mrs. Caniglia decided to spend the night in a hotel to allow her husband some time to calm down. The next morning not having heard back from Mr. Caniglia, Kim called the Cranston police to conduct a welfare check on him. Responding officers reported that Edward appeared to be stable and he consented to be sent to a psychiatric hospital for evaluation on the condition that his firearms were not confiscated. While hospitalized, the Cranston police came by his home to retrieve his firearms. Officers erroneously informed Mrs. Caniglia that Edward had consented to his firearms being seized. Upon release from the hospital, he made several failed attempts to reacquire his firearms. He then “… filed a lawsuit under Section 1983..” arguing that the confiscation of his guns violated his Second and Fourth Amendment rights. The First Circuit ruled that the officers’ actions were permissible under the Community Care Taking Doctrine.

Mr. Caniglia’s petition made its way up to the Supreme Court. As a result of the unanimous decision among all nine justices. The general message of the decision was that the First Circuit was out of line with its expansive interpretation of the doctrine. The First Circuit clinging to the reasoning that exigent circumstances justified the removal of the petitioner’s guns. Since the actions to protect the petitioner and any potential bystanders did not constitute “…the normal work of criminal investigation..” making this action a Community Care Taking function. However, the ruling held that the right to privacy in the home is Constitutional distinct, citing Florida v. Jardines (2013). The court finding this expansion of the doctrine to not be justifiable in previous case precedence.

Conclusion:

Let the Caniglia decision be a ray of hope for all Fourth Amendment advocates. The Supreme Court took a firm stance against the reasonable expansion of a doctrine validating warrantless searches. The slow progress of policing reform may be disheartening. The advances in surveillance technology may be horrifying and often outpace the law. That does not mean the courts cannot formulate rules that are faithful to our Constitutional rights.

Community Care Taking Doctrine- A Windfall for Incriminating Evidence

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We frequently hear back about the erosion of our civil liberties. Often various pundits, bloggers, and even judges fervently debating the scope and applicability of our Constitutional rights.  Even in an era of the expansive “police state” it is important to celebrate the small victories. Even gaining an inch is as good as gaining a mile. The outcry for policing reform over the past year (since the murder of George Floyd) has reanimated the civil liberties debate. Unfortunately, someone had to be martyred to shift the public discourse in the correct direction.

Considering this renewed public consciousness of civil rights, crucial that we hold public officials accountable. This has been observable by the recent reforms regarding Qualified Immunity at the state level.  Accountability isn’t limited to just immunities and privileges granted to government employees, but also to how our laws are enforced. Anyone serving on the behalf of the public should perform their job function in a manner that is faithful to our Bill of Rights. Not execute their job functions in a way that will trample our rights as private citizens. This is why the Supreme Court’s opinions on civil liberty cases are crucial in insulating us from extralegal and invasive procedures from our civil servants.

The Fourth Amendment has arguably been one of the biggest casualties of technological advancement and doctrinal exceptions developed in previous case precedence. With the rapid evolution of surveillance technology coupled with judicially crafted loopholes, our expectation of privacy has greatly diminished. One doctrine that has developed from case law has had the unfortunate consequence of undermining the Fourth Amendment. That being the Community Caretaking Doctrine. This doctrine is a prime example of “…law from the bench..”. The Community Caretaking Doctrine was not fabricated to facilitate criminal investigations, but rather provide a privacy exception where a warrantless entry to another person’s property was necessary due to various categories of exigent circumstances. The pivotal case in the formulation of the doctrine was Cady v. Dombrowski (1973). In which, the arresting officers searched a vehicle in a drunk driving crash. To recover a service revolver. Doing so with the intentions of facilitating public safety. 

Traditionally the Community Care Taking function of the police has been separated from criminal investigations (p.263). The conflict arises when police engage in caretaking functions and come across evidence linking someone to a crime. It is applied in situations under which the Emergency and Exigent Circumstances Doctrines would not apply. The two primary functions of the Community Care Taking Doctrine can be summarized as :

“…the community caretaking doctrine as authority for warrantless home entry would apply in only two situations: (1) non-bodily harms such as nuisances; and (2) non-imminent threats of bodily harm.…” (p.10).

The “nuisance” function of the doctrine may seem frivolous, however, it is frequently invoked. The case the United States v. Rohrig (1996) embodies a classic example of “non-bodily harms such as nuisances”, a noise complaint. (p.16). Neighbors called in the early hours of the morning to report loud music being played. Officers opened the unlocked door to the defendant’s house to request he turn the music down. While locating the homeowner “… discovered wall-to-wall marijuana plants, as well as fans and running water…”. Presenting an interesting conundrum because it is debatable whether the plain view doctrine could apply. The officer did entry the property of the homeowner with his consent nor with a warrant in hand. Criminal evidence was obtained stemming from something as trivial as noise complaints. Normatively, this makes a convincing argument for weighing the severity of the circumstances justifiable under any warrantless search and entry. Regardless of the doctrine upholding its legality. Loud music is certainly a nuisance, but it is devoid of any real danger. In the absence of any statutory mandate enabling the police to enter or the defendant’s violation of local noise ordinance; the police procured evidence of a Marijuana grows operation predicated on a legal construct. One that was conceived on the lofty bench of the high court. In the absence of ample circumstantial indicators of a serious crime nor of an emergency. It is difficult for any defender of the Fourth Amendment to perceive such actions as anything but intrusive and inordinate.

Your Car is Not Your Castle- Part III: Post- Cooper

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PART I

PART II

The post-Cooper case precedence removes the one core restriction established in Carroll. The elimination of the standard of a search being proximal to a traffic stop only further provides more fodder for the justification of extending warrantless searches. Making Cooper arguably a pivotal case in the advancement of the Fourth Amendment Law on vehicle searches. Consequential, throwing out this one requirement serves only to further erode our Constitutional right to privacy. Even the jurisprudence behind the plain view doctrineand probable cause is at best questionable from a normative standpoint. Upholding the limitation of onsite warrantless searches could at least be perceived as a fair compromise between civil libertarians and criminal justice conservatives.

All cases from Cooper on the standard of “appurtenance” of a search to being detained were served. Divorcing these two variables further expands the ability of code enforcement officers to commence warrantless searches of automobiles. Even after the defendant has been incarcerated. Such expansive interpretation of the doctrines involving warrantless searches of vehicles degrades the rights guarded under the Fourth Amendment. Criminating evidence discovered with a substantial probable cause at least has some grounds for permissibility. Allowing searches after detention by police bring down a treacherous slippery slope that can only be exacerbated by further judicial innovation.

Dyke V. Taylor Implement Manufacturing Company Inc (1968)

The incident serving as the basis for this case stemmed from the events that transpired on February 25, 1966. It was purported that petitioners Dyke, McKinney, and Blackwell were riding in a vehicle implicated in a shooting. The automobile drove past the home of Lloyd Duckett, a nonstriking employee of “Taylor Implement”. Duckett’s son-in-law who was standing in the front yard of the property saw the shots come from the vehicle and fired back with his pistol. Subsequently, he reported the incident to Monroe County police. Police then spotted that they presumed met Ellis’s (Duckett’s son-in-law) description and chased the car. The speeding vehicle was eventually stopped and the occupants were sent to the local jail. While the defendants sat in jail local police searched the automobile. The officers came across an air rifle underneath the front seat of the car. Even at the trial, it was noted that:

“…the case against petitioners was ‘premised entirely upon circumstantial evidence’ but that nonetheless he had ‘no trouble at all with the proof which I have heard and I have weighed it in its severest form, that the charges made must be proven beyond a reasonable doubt….”

Invariably the petitioners were found to be guilty by the court. The defendants were sentenced to ten days in jail and a fifty-dollar fine. The Tennessee State Supreme Court rejected the petitioner’s claim that the evidence against them had been seized illegally. Since the air rifle was obtained when the defendants were incarcerated. However, the court did find that the officers did not face sufficient probable cause to stop and then search the car. Because the arresting officers lacked a complete description of the offending vehicle. Citing Brinegar v. the United States the Supreme court ruled that the evidence had been obtained illegally. Forcing the court to find the evidence of the air rifle seized in the search to be inadmissible in search. It would be a mistake to even perceive this court decision as even a small victory for Fourth Amendment advocates. This court ruling reads more like a technicality than jurisprudence aiming to insulate our right to unjust searches by the long arm of the law. Any judgment against the inferences of the officers was made about the flimsy evidence justifying their intervention versus Fourth Amendment concerns.

Chambers v. Maroney, 399 U.S. 42 (1970)

The events leading to the complaints in Chambers V. Maroney transpired on May 20, 1963. 

A blue station wagon containing four occupants, one wearing a trench coat and a green sweater was stopped by police. Matching the description of two men implicated in the robbery of a Pennsylvania gas station the occupants were arrested. There was a trench coat found and the vehicle and one occupant wearing a green sweatshirt. After the car was seized, it was taken to the police station and subsequently searched by authorities. During the search, the police discovered two pistols in the glove compartment and business cards from another gas station that had been recently burglarized.

In Chambers, it was found that the warrantless search of the car obtaining the handguns and business cards was lawful. However, the search failing on the dimension of appurtenance cannot be “..justified..”. Since the search had no connection to the “.. incident to the arrest..”. The spurious nature of the legal justification was outweighed by the probable cause logically substantiating the need to search for stolen property. Due to the mobile nature of cars if there is probable cause it is imperative that the vehicle is searched (citing Carroll). Arguably the most fatal reasoning in Chambers was that location of the search was inconsequential to any Fourth Amendment concerns.

“…Given probable cause, there is no difference under the Fourth Amendment between (1) seizing and holding a car before presenting the issue of probable cause to a magistrate, and (2) carrying out an immediate warrantless search…”

Demonstrating that whatever “gains” were made in Dyke were only illusory. If there was any impact made in Dyke was ineffectual if the case even moved the needle at all. As previously noted, the court weighed scant evidence for the stop and search than any civil liberty concerns. Since Dyke lacked any true fidelity to Preston, it can be seen as inert and inconsequential in the advancement of protecting the Fourth Amendment. The lack of resistance to relinquishing the appurtenance requirement for warrantless searches makes Chambers merely a continuation of the logic held in Cooper.

Cady v. Dombrowski, 413 U.S. 433 (1973)– The Birth of the Community Care Taking Doctrine

Cady V. Dombrowski ended up being a seminal case in the evolution of the jurisprudence of Fourth Amendment law. Arising from the decision was the foundation for the legal construct of the Community Care Taking Doctrine. Over time this doctrine has become another tool in facilitating legal warrantless searches. Despite the notable observation that an individual does have a lower expectation of privacy in their car versus their house; it is reasonable to question the veracity of the care-taking functions conferred by the court to police officers. The circumstances surrounding the development of this doctrine appear to be indicative of what many jurists refer to as “..legislating from the bench..”. The advancement of expansive doctrines through case operates as an informal form of lawmaking. The court’s historical disregard for our Fourth Amendment rights on motor vehicles is disturbing. The genesis of the Community Care Taking Doctrine serves to provide another justification instead of necessary limitations.

The Cady decision was spurred by an incident that occurred just outside of a small town in Wisconsin. The defendant had crashed his rented vehicle and was determined by responding officers to be intoxicated. He was then taken to the hospital and subsequently arrested on charges of operating a motor vehicle while under the influence. The defendant’s vehicle was towed to a garage several miles away from the police station. The next day, police commence a search of the unguarded vehicle after being informed the arrested respondent was a Chicago police officer, in an attempt to recover his service revolver. The officers found substantial evidence linking the respondent to potential murder.

“…search of the car and found in the trunk several items, some bloodied, which he removed. Later, on receipt of additional information emanating from the respondent, a blood-stained body was located on the respondent’s brother’s farm in a nearby county. Thereafter, through the windows of a disabled Dodge which respondent had left on the farm before renting the Ford, an officer observed other bloodied items. Following the issuance of a search warrant, materials were taken from the Dodge, two of which (a sock and floor mat) were not listed in the return on the warrant among the items seized..” (Justia)

The defendant refuted the evidence obtained in the vehicle search during his murder trial through a habeas corpus action. The court of appeals ended up overturning the judgment of the courts. Viewing as the evidence linking the defendant to the murder as unconstitutional obtained. However, this was not even remotely a Fourth Amendment victory. The court may have perceived the evidence procured in the search as being inadmissible, but the search in itself was not outside the bounds of reasonable action. Ruling that the search of the automobile itself was imperative for securing public interest. Mainly from the standpoint of the safety of the general public.

“…The warrantless search of the Ford did not violate the Fourth Amendment as made applicable to the States by the Fourteenth. The search was not unreasonable, since the police had exercised a form of custody of the car, which constituted a hazard on the highway, and the disposition of which by the respondent was precluded by his intoxicated and later comatose condition; and the revolver search was standard police procedure to protect the public from a weapon’s possibly falling into improper hands. Preston v. the United States, 376 U. S. 364, distinguished; Harris v. the United States, 390 U. S. 234, followed. Pp. 413 U. S. 439-448…” (Justia).

Removing the disabled vehicle from the road, especially if it was blocking access to a roadway presents a conundrum. The vehicle needs to be removed due to the car obstructing traffic. Even property rights purists (even if the ethical disagree with the police moving the vehicle) can logically deduce the rationale for doing so. The question of whether the road was a public or private roadway comes into play. Splitting hairs over such minute points is outside the scope of my analysis. It can begrudgingly acquiesce that there may be grounds to justify moving the car. However, the search for the service revolver was an overreach. If our cars can be searched merely for some vague “public interest” purpose it becomes difficult to place effective limitations on these justifications. Especially when terms like “public good” or “public interest” fail any measurable metric of objectivity. Making public safety measures mirror many of the fallacies that plague welfare economics. What is advantageous to one man is detrimental to another, unless adequate compensation is provided. The ambiguity of these qualitative terms is precisely is what lends them to the reasoning for the expansion of constructs such as the Community Care Taking Doctrine.

Puritanism and How H.L. Mencken Got It Partially Wrong

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The great American writer dubbed the Sage of Baltimore, H.L. Mencken, was not completely accurate in his famous definition of puritanism.  

Puritanism: The haunting fear that someone, somewhere, maybe happy.”

Mencken’s observation is correct. There is an aspect of puritanical posturing that does take perverse pleasure in denying happiness to others. He is only identifying a symptom of the disease. Puritanism extends deeper than the passive-aggressive jealousy of the bitter and homely spinster or the staid minster.  There is a deeper pedagogy entrenched in the panoply of behaviors and norms encompassing Puritanism. Less obvious implications of puritanism are only apparent to those who have grown up in New England. Even the era of the pilgrim has withered away with the sands of time,  Puritanism has never left Massachusetts. Only the behaviors considered morally criminal and the means of enforcement have changed. The Pillories of the Massachusetts Bay Colony are now figurative. Public derision is now expressed on cyberspace in the comment section of the local paper’s arrest log.

Mencken misses the mark on Puritanism by overlooking is its focus on “education”. Education in New England has historically manifested itself in many forms.  Ranging from the derisive finger-wagging of a  neighbor, the lectures of the schoolhouse, and even rapturous sermons being shouted from the pulpit. The eye of judgment has always been pervasive throughout the region. Education has always been tacitly viewed as served a “civilizing” function. Like a missionary imposing his beliefs and customs on tribal society. The assumption that most sinful transgression is the byproduct of ignorance rather than wickedness. Once the empty-headed fool has been properly informed, they will conform to the norms of adequate deportment. A corollary of the progressive concept of the perfectibility of man.  This lofty goal cannot possibly be attained, but that does not mean quixotic do-gooders will not try. The overarching assumption being that each step forward is unquestionably an improvement. Moving upward towards the next graduation of progress cleanses us of our past sins resulting from our ignorance. Implying that education has a purifying effect that brings us closer to what ought to be. Such idealism runs astray of the fallibility and true nature of humans.

The idea of salvation through social, academic, and theological education shares common ground with statutes that enforce victimless crimes. Both are designed to save people from themselves. This attribute better describes the defining features of puritanism. Many of the “blue laws” still on the books in New England do little to promote the vague notion of “public interest”. Serve as nothing more than a safety net insulating people from making “bad decisions”. The element of choice even to make an imprudent decision is an immutable attribute of a free society. Even in the name of safety and securing the ignorant the practice of enforcing victimless crimes is questionable at best. Some pragmatists may cite the potential of externalities being justification for upholding laws that prohibit victimless crimes.  Spillover effects are never guaranteed. Anticipating the adverse consequences of gambling, adultery, and prostitution is merely speculation. Similar crimes are not going to disappear just because there are criminal penalties for engaging in these behaviors. To pretend that an omnipotent legislator can save people from themselves is at best foolish. For most crimes where the state is the victim, the statute can be regarded as a government-imposed safety net.  A parameter was established to protect people from their unfortunate proclivities.  The human affinity for intoxication, games of chance, and promiscuity will not cease because the law deems it punishable. The illusion that laws prohibiting vice protect people from harming themselves and others are grossly out of touch with reality. The greatest examples of the inherent shortcomings of Puritanism must be the abject failures of the War on Drugs and Alcohol prohibition. Both flawed social experiments served only to further erode the civil liberties of the American people.

Laws regulating intoxicants, sexual activities, traffic safety laws, etc. may act to save people from the perils of dangerous behavior, what does education save the ignorant from? In most cases, being ignorant of arithmetic or history will not present an immediate and overt danger. Nevertheless, New England led the charge on proliferating public education and the nation’s first compulsory education laws. A clear crusade to protect the general public from their lack of knowledge and understanding. From the perspective of the progressive white knight, levitating people morally and intellectually is an ethical quest that is above reproach. Educating the populous hypothetically creates informed voters. A point that Mencken himself was extremely skeptical of.  Despite the increase in minimum mandatory education requirements over the years, the general public has become less enlightened. Distracted by an endless array of entertainment options, no one possesses the attention span to delve into the intricacies of complex political issues. Validating the observations of H.L. Mencken back in the 1930s. Considering how people have become profoundly more ignorant over the years, he must be rolling over in his grave. Yet, the proponents of public education still crusade to fight this uphill battle. Whether their convictions are rooted in a hopelessly naïve optimism or personal gain is difficult to ascertain.

Over the decades, Puritanism has merged with political progressivism forming a secular cadre of moral crusaders. Shifting from saving the average person from evils of the excesses of inebriation and fornication to more abstract transgressions. Some of these initiatives have been integrated into formal education. The lofty campaigns centered around fair-trade produce, inclusion, and diversity, and aggressive attempt viciously stomp out prejudice.  Once again, saving people from the excesses of what is deemed ignorant. If you do not purchase ethically sourced coffee you are complicit in the exploitation of third-world coffee farmers. The education efforts have evolved beyond merely inform the ignorant. Now also encourage the newly initiated to proselytize to their ill-informed peers. Operating with the evangelical zeal of door-to-door Bible salesman. Each new person that you have properly informed has been saved from the darkness of their ignorant ways. Leading bands of crusaders to even police language, placing the First Amendment in their crosshairs. Placing so much strain on the language we use, humor is starting to become joyless. Hollowed out by the sanctimonious finger-wagging of droves of woke-social justice warriors.

Your Car is Not Your Castle- Part II: The Death of Carroll

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Part I

The case history of warrantless vehicle searches only expands from the 1925 Carroll decision. Over time, the conditions under which warrantless searches are permissible to have evolved. Not necessarily for the better. One of the most conspicuous safeguards built into the adjudication of Carroll over the years has been eroded in subsequent court decisions. The prevision of the search being appurtenant to a traffic stop is no longer consistent with the larger body of case law. Allowing probable cause searches to be conducted offsite and even days after the motorist has been detained by authorities. While the Carrol decision was imperfect at least set clear boundaries regarding permissibility. A principled stance that disappeared by the 1970s.

Husty V. United States, 282 U.S. 694 (1931)

Chronologically the next warrantless vehicle search case taken by the Supreme Court was Husty V. United States (1931). Much like Carroll, this case involved a motorist suspected of transporting illicit alcohol. It should be noted that both incidents transpired during the U.S. prohibition on alcoholic beverages (1920-1933). The petitioners were indicted on charges of possessing and transporting alcohol in Western Michigan. Making the actions of the petitioners’ direct violations of the Volstead Act. The arresting officers searched the vehicle without a warrant and came across “a quantity of intoxicating liquor”. Since this evidence was obtained without a warrant the petitioners motioned to prevent it from being used in court. Claiming that the grounds under which they were arrested and searched with illegal under the Fourth Amendment. This motion was denied by the lower courts. Both defendants were sentenced and incarcerated.

The Sixth Circuit Court of Appeals sustained the convictions and “granted certiorari” to have the Supreme Court review the case. The high court ruled in favor of the lower courts. Stating that probable cause is enough to condone a warrantless search of a vehicle. Mentioning that :

“….it is not necessary that the arresting officer should have had before him legal evidence of the suspected act. It is enough if the apparent facts which have come to his attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched….”(Justia)

In other words, a police officer does not need to justify their reasoning for the search of an automobile. The suspicion of circumstantial evidence that may be indicative of legal activity is justification in itself. The actions of the petitioners only aided in strengthening the circumstantial case for the vehicle search. The petitioners attempted to evade police when they were “hailed” to stop. The court holding that officer suspicion of the petitioners transporting contraband was sufficient for the search. Considering the recent Carroll decision, the court’s stance was not an aberration from the trends in the jurisprudence of the era.

Scher v. United States, 305 U.S. 251 (1938)

The 1938 court decision Scher V. United States only serves to preserve the logic held in Carroll and Husty. This case also shares the commonality of the two latter cases as about the transportation and possession of illegal alcohol. Except this case involved the petitioner circumventing tax laws of alcohol. This is notable because the incident transpired after the repeal of prohibition. Scher was charged with two counts of violating section 201, Title 2, of the Liquor Taxing Act (1934).

(U. S. C., 1934 ed., title 26, sec. 1231), is amended to read as follows: “SEC. 3287. (a) Except as provided in section 602 of the Revenue Act of 1918, as amended, all distilled spirits shall be drawn from receiving cisterns into casks or packages and thereupon shall be gauged, proved, and marked by a storekeeper-gauger, and immediately removed into an Internal Revenue Bonded Warehouse. The Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, is hereby empowered to prescribe all necessary regulations relating to the drawing off, gauging, and packaging of distilled spirits; the marking, branding, numbering, and stamping of such packages; and the transfer and transportation to, and the storage of such spirits in, Internal Revenue Bonded Warehouses. “(b) Upon the application of the distiller and under such regulations as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may prescribe, distilled spirits may be drawn into wooden packages, each containing two or more metallic cans, which cans shall each have a capacity of not less than five gallons, wine measure. Such packages shall be filled and used only for exportation from the United States. And there shall be charged for each of said packages or cases for the expense of pro- viding and affixing stamps, 5 cents. “(c) The Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may, by regulations, prescribe the standards of fill of casks or packages of distilled spirits at each distillery. (Liquor Taxing Act 1934).

Scher violated these conditions under the statute by possessing and transporting distilled spirits missing the required tax stamps. The petitioner was sentenced to a year and a day for his transgression. The Court of Appeals sustained the judgment. The defendant was apprehended in December 1935, after an anonymous tip came in that his car was transporting illegal whiskey. Officers pursued the vehicle from a residence in Cleveland, Ohio where the car was observed to be “heavily loaded”. One of the officers following the car hailed the petitioner for a traffic stop. The officer that commenced the traffic stop asked Scher if he had liquor in the car. The petitioner responded by stating that he had acquired some for a social function. When asked if the liquor tax had been paid on the liquor, he stated that it was Canadian Whiskey. The officer searches the car and found “..eighty-eight unstamped bottles..” of liquor. The car and containers holding distilled alcohol were subsequently seized by authorities. Scher motioned to suppress the evidence procured by the revenue agents in the traffic stop. The Supreme Court ruled that the conditions under which the criminating evidence was acquire were valid. Despite the fact the illicit liquor was seized in a stop initiated in a garage connected to a residence, it was still valid evidence in court proceedings. Differing slightly from the previous warrantless vehicle cases, but remaining within the boundaries established in Carroll.

Brinegar v. United States, 338 U.S. 160 (1949)

The defendant/ petitioner was convicted of illegally transporting alcoholic beverages across the Oklahoma state line. His actions violating Oklahoma state liquor laws, specifically the Liquor Enforcement Act of 1936. How the liquor was exported from Missouri to Oklahoma violated state law and in effect violating the 1936 statute. Federal agents seized the illegally transported alcohol at a traffic stop. The petitioner had a reputation for being in the illicit liquor business and was observed by authorities loading cases of alcoholic beverages into his vehicle. While being interrogated by the authorities initiating the stop admitted to possessing twelve cases of liquor. The petitioner motioned to “suppress” the evidence due to the search being conducted without a search warrant. Effectively claiming that this search violated the Fourth Amendment making the evidence against the defendant inadmissible in court. Based upon the case precedence dating back to the mid-1920s the petitioner was grasping at straws to avoid conviction.

The court held that the defendant made incriminating statements that established probable cause for the search of his automobile. The court also stated that the officer’s knowledge of the petitioner’s illegal activities was not purely circumstantial as he observed the defendant committing a crime. It was also ruled that utilizing the evidence in court was not improper, due to there being sufficient probable cause justifying the search. The court’s overall decision is consistent with the jurisprudence established in Carroll.

Preston v. United States, 376 U.S. 364 (1964)

Three “companions” who had been sitting in a parked car for several hours were arrested for vagrancy. Both occupants of the vehicle were searched for weapons and then taken into police custody. The vehicle the three petitioners had been loitering in was towed and subsequently searched by the authorities’ office site. The police found substantial evidence confirming that the duo was planning to “… rob a federally insured bank…”.The Court of appeals for the Sixth Circuit ruled that this search was outside the bounds of “reasonableness” and indeed violate the Fourth Amendment. Then certiorari was granted to determine if the arrest was valid considering the search by the officers was not.

The arrest of the petitioners was spurred by a telephone complaint to the Newport, Kentucky police department reporting that three men were parked in a car and “…acting suspiciously…”. Four police officers were dispatched to respond to the complaint. Upon questioning of the police, the men in the suspiciously parked car provided questionable answers. All of the men appeared to be unemployed and only possessing a meager sum of money. One of the individuals in the vehicle claimed to lawfully own the car, but could not produce a title. Police decided to arrest the occupants and then engage in searching the vehicle afterward. The officers found paraphernalia[PC1]  and other evidence linking the occupants to a scheme to rob a bank “fifty-one miles” away from Newport.

As bleak as it may seem for the petitioners, in this case, they end up capturing a big win. The Supreme Court maintaining its fidelity to Carroll end up finding the evidence seized in the search to be “inadmissible”. Since the search was “.. too remote in time and place to being treated as incidental to the arrest…”. Within the corpus of case law post-Carroll, this is the first instance of the 1925 case serving as a reasonable limitation on warrantless vehicle searches. Demonstrating that while arresting officers can conduct a warrantless search of your vehicle. That such an extraordinary privilege is not without proper limits. Making Preston a landmark case in the defense of upholding the Fourth Amendment.

Cooper v. California, 386 U.S. 58 (1967)

The true erosion of the safety net established in Carroll was eviscerated in Cooper V. California (1967). This was the case where the court rejects the condition of a search being appurtenant to a traffic stop or arrest. In the view of Fourth Amendment purists, even the conditions set by Carroll could be viewed as being perverse. At least the Carroll decision attempted to implement a safeguard against extending warrantless searches to the point of being arbitrary. The unfortunate consequence of Cooper was the elimination of the standard of the proximity of police engagement and the search of a vehicle. Serving this one thread eliminates any silver lining provided in the Carroll ruling.

The Cooper Case was a result of the petitioner being convicted on charges of violating California narcotics statutes. However, the evidence obtained against the petitioner was collected a week after his arrest. When his vehicle had already been impounded. The petitioner attempted to cite Preston as grounds for the inadmissibility of the evidence collected from his vehicle. However, the lower court swiftly rejected this claim, suggesting that “… evidentiary error harmless under the State Constitution’s harmless error provision…”. The Supreme Court held that the search did not violate the Fourth Amendment. Since the search was closely related to the arrest of the petitioner.  

Focal Points- II: Roe V. Wade (1973)

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The seminal Supreme Court case Roe V. Wade (1973) is a textbook example of a game-theoretical focal point. Why? Roe like many other Supreme Court rulings operates as an unspoken point of convergence in public policy. Ideally, such decisions made by the high courts should clarify the existing laws. In theory, the application of the law is the attempt to apply static statutes to dynamic circumstances. Generating ample opportunities for ambiguity and other categories of confusion regarding the administration of law. These cases generally serve as centering fixtures of public policy debates. After all, there are typically steep penalties for violating the law. If a law is flawed or otherwise unjust it can be amended or repealed, providing use revisions have gone through the proper channels. Making such court decisions a common destination of all pundits regardless of their stance on abortion. Endowing this infamous court decision with all of the unique characteristics of a focal point. No formal coordination or communication is required to reference this court case in the abortion debate, for decades it has been the centerpiece of all the contemptuous verbal sparring matches.

In many regards, Roe is unique even from the standpoint of being a Schellingian focal point. Even individuals lacking the proper understanding and context of the legal and normative arguments if the debate knows the case. Maybe not a bit of the factual or legal details of the case, but they know it by name. It is long been know as being synonymous with the legal justification for abortion. Many pro-choice and pro-life advocates use this case as a springboard to crafting normative positions either defending or repudiating the legality of this controversial procedure. Oddly enough, most of these talking points craft from a superficial understanding of the case has little to no legal substance, it degenerates into an ethical debate. Ethical justifications are also important but signify a conflation between normative and positive arguments. This an all too common occurrence in just about any political debate, the confusion between hard facts and ethics. Despite the common misconceptions regarding the abortion debate, without any formal coordination, even the arm-chair pundit looks towards Roe for the basis of their arguments.

Even people who are not interested in nor have an invested interest in the abortion debate, colloquially know Roe as the “abortion case”. Demonstrating how culturally in the United States this one Supreme Court decision from the 1970s has taken on a life of its own. Whether its legal significance is overblown is almost immaterial, but a matter to be debated among proper jurists. The significance or the salience of the focal point is culturally constructed. This isn’t to say that the moral arguments surrounding the debate are subjective. Rather, points of reference are most certainly subjective, but what makes them centralized or significant is a consensus of its importance. There is certainly a democratization effect that takes place in the establishment of culturally relevant focal points. The actual importance of the case is not nearly important as its perceived significance. A lot of Roe cultural clout was most likely sustained due to the decision being sandwiched between the cultural liberalization of the 1960s and the nascent period of feminism. It’s difficult to surmise if this ruling was made at a different point in time that it would possess the same degree of gravity. The cultural tides of the 1960s and 1970s provide the fertile substrate for such a contentious issue to be in the Supreme Court docket. These temporal and cultural aspects of the 1970s made Roe the ideal cause to be a focal point. In the decades since it has remained a consistent point of reference that also doubles as a divisive cultural event. Mirroring the same contentions of the Vietnam war and the Civil Rights movement.

Your Car is Not Your Castle- Part I

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The Fourth Amendment of the U.S. Constitution is central to our modern conception of property rights. Outside of contract law, few areas other than our right to privacy substantially address such civil libertarian concerns. The Fourth Amendment like so many other Constitution “rights” are not absolute and are subject to various exceptions and stipulations. Much how our right to free speech has limitations, the same can be said about our right to privacy. Even instances of warrantless searches of property and persons. Conceptually a warrantless search and seizure of property are condoned under a specific legal context. Effectively divorcing case law from the normative justifications for the drafting of the Fourth Amendment. The basis for the Fourth Amendment has its origins in the philosophical precepts of English Common Law. Immortalized in the words of the English jurist Sir Edward Coke “…That the house of everyone is to him as his Castle and Fortress..” implying that the home is a man’s ultimate refuge from public life. It is where he stores his personal effects and experiences the most intimate moments of his life. Arguably making securing one’s home the focal point of the property rights protected under the Fourth Amendment.

The Fourth Amendment concisely details the intended scope of security bestowed to American citizens under its protections.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Amendment IV, U.S. Constitution).

In a literal reading of the amendment, it is quite evident that its scope was enough for covering the property rights of citizens of the 18th century. With the advent of new technology, this list of protected areas of the property is wholly incomplete. Since the era of the founding, the various types of property ownership have greatly expanded to include automobiles, various forms of modern intellectual property rights, and even digitally stored information. This is likely why some jurists advocate for the prospect of a “..living Constitution..” that possesses the pliability to adapt to modern times. Despite the potential danger of illiberal innovations that may be utilized to invalidate crucial Constitutional rights. E.g.) An amendment that repeals the Second Amendment due to an increase in gun violence. Due to the stringent requirements to ratify such Amendments, the 4th Amendment has evolved primarily from case law. Primarily the rulings in Supreme Court cases, setting the tone for the modern interpretation of our right to privacy.

In certain contexts, our expectation of privacy varies. For instance, we do not have the same expectation of privacy walking down the street as we do in our bedroom. The verbatim text of the Fourth Amendment does explicitly guard Americans against warrantless searches of their home and person but leaves us in a murky situation when it comes to modern forms of ownership. Never mind cloud computing and other variants of modern data storage, but even automobiles are left out of the equation. This concern becomes particularly significant in the event of a traffic stop. However, factors relating to probable cause and the plain view doctrine need to be considered in justifying a warrantless search of a vehicle, there is another variable at play. Simply, we do not have the same expectation of privacy in our car that we do in our home. To many people, this may sound somewhat absurd and normatively there are some grounds for arguing against this point. However, from the stance of positive law, these assumptions hold.

The origin of the modern limits of the Fourth Amendment regarding vehicle searches dates back to Carroll V. United States (1925). In September 1921, Carroll met with an undercover agent to sell illegal whiskey. After Carroll left the location to obtain the whiskey his “potential” client had left. Then in early October Carroll’s vehicle was involved in a chase with a patrolling police car. Carroll was able to escape arrest. Then on December 15th of the same year, Carroll was pursued and stopped by police. During the traffic stop, the officers discovered 68 bottles of illicit whiskey tucked behind the upholstery of the car. The court held that the agents that apprehended Carroll had justifiable probable cause to search his vehicle. Since previous encounters with the suspect indicated a high likelihood that he owned alcoholic beverages.

It is easy to find such conclusions troubling. After all, we do own our cars. Shouldn’t searches of automobiles require a warrant barring exigent circumstances or the consent of the owner? Carroll happened to be the defining case that did indeed confirm that a man’s car is not his castle! It is easy to assume that the same rights that apply to a home could easily be extrapolated to a vehicle. Much like a home, a car can act as a vessel for holding personal effects. In some cases, for individuals that are homeless, a car is their house. Carroll singlehandedly defines the criteria under which an automobile differs from a stationary house regarding the expectation of privacy. The court ruled that the authorities having the suspicion that a car contains contraband is in itself justifiable for a warrantless search. Why? Since cars are mobile, they can easily leave the jurisdiction well before a warrant can be issued. This decision on the part of the court may seem overarching, however, it was not without limits. The court ruled that warrantless searches of parked automobiles would be considered unreasonable. That the search must be “…contemporaneous with the stop…” making it improper to move the vehicle offsite to search at the police officer’s “convenience ”. Subsequent cases even decades after the Carroll decision would further erode the notion that there is an expectation of privacy in one’s car. Noting that the very nature of a car being a conveyance strips away much of privacy privileged to our homes. Later cases even detailing that “…It travels public thoroughfares where both its occupants and its contents are in plain view…”.

Focal Points- Part I: What is A Schelling Point

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One of Thomas Schelling’s best-known contributions to Game Theory was the concept of a focal point. Otherwise known as “Schelling point”. What is a focal point? We oftentimes hear the term being thrown around colloquially in various settings. Ranging from office board meetings to pundits on network news stations. The common definition of the term slightly differs from its connotation in Game Theory. The common definition of a focal point connotes a point of convergence. A central point from which all other connections radiate. This definition isn’t antithetical to how the term is used in Game Theory. Since most of these assumptions are implicit in the game-theoretical definition. A focal point from Dr. Schelling’s perspective operated as a conceptual bridge in the absence of clear communication. A focal point bridges the gap between information asymmetries when correspondence is lacking.

A focal point is particularly important in what is known as a coordination game. Simply put, coordination games are situations where the players benefit from assuming the same course of action. It can be assumed that in such scenarios nash-equilibrium is faithfully upheld by all participants. Because all players are conforming to the behavior of their opponents. Schelling’s conception of focal point may be applicable even in scenarios outside of the context of coordination games. A focal point could also be seen as a cultural-contingent point of reference, that can serve as a beacon of hope in contextual circumstances fraught with ambiguity. There are certain locations, times, dates, and people that serve as focal points to individuals of various cultural groups. The recognition of these focal points functions on a continuum ranging from locally acknowledge focal points to internationally renowned points of reference. A local bar may be a focal point to residents but in contrast the Panama canal a world-renown point of reference. While Schelling points may be an ingrained feature of coordination games we do see them peppered throughout our daily lives.

In Schelling’s seminal book The Strategy of Conflict (1960)  the Nobel laureate details one of the most widely cited examples of a focal point in game theory.

You are to meet somebody in New York City. You have not been instructed where to meet; you have no prior understanding with the person on where to meet, and you cannot communicate with each other. You are simply told that you will have to guess where to meet and that he is being told the same thing and that you will just have to try to make your guesses coincide. (Schelling, 1960, p. 56).

The only tool at your disposal would be to use a common point of reference in the lack of proper information be a common point of reference. In London, England it may be a shrewd strategy to meet at the Big Ben clocktower. However, opting to meet at “Big Ben” in NYC would be wholly inappropriate. A better potential meeting place would be the Empire State Building. In the absence of any cultural context, this task becomes nearly impossible. Without any cultural consensus, it becomes difficult to ascertain what is a crucial landmark. Not only consensus required but also the ability to rank the salience and notoriety of the location is necessary. Your favorite coffee shop in Greenwich Village maybe your favorite location in all of the city, but odds are you wouldn’t find the other “player” at this location in the absence of clear communication. These broad approximations are far from perfect science. One “player” waiting at Central Park and the other waiting at the Empire State Building are rational strategies. Both players missed the mark.

The conventional definition of a focal point isn’t completely different than how the term is used in Game Theory. From a game-theoretical standpoint, does have a “centering effect”. It serves more to operate as a tool to navigate the perils of imperfect information, rather than a noun describing the spatial origin of the reference point or a clumsy synonym for a talking point. When properly estimated by coordinating actors it does effectively operate as a point of convergence. It is just a matter of fine-tuning the location.

Griggs V. Duke Power Company (1971)

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Using intelligence testing for validating job applicants is a risky proportion. If the test cannot be generalized, it can be considered discriminatory under the Civil Rights Act of 1964. This is the most likely way most companies have replaced this practice of using credentials to qualify prospective employees (college degrees). Back in the 1970s, job applicants possessing college degrees were not as common as it is today. The correlative inferences that can be made from this form of credentialing have supplanted intelligence testing for job placement.  Which case in the corpus of American case law shifted the incentives away from companies using IQ tests? Arguably the pivotal case was Griggs V. Duke Power Company (1971).

An African-American employee at Duke Power Company, Willie Griggs, challenged the legality of the company’s “transfer policy”. Where an employee was required to pass two aptitude tests and have a high school diploma to transfer to a different department. The one exception is that this process was not required for the lowest paying jobs within the company. Griggs claimed that the Duke’s transfer policy violated Section VII of the Civil Rights Act 1964. Griggs’s case was initially dismissed by the district court. Citing that before the implementation of the act, the company did engage in discriminatory higher practices. As far as the court could tell all disparate hiring practices had been abolished by the company. After the court of appeals found no evidence hinting towards discrimination, the Supreme Court “granted certiorari” to Grigg’s case.

The U.S. Supreme court ruled in favor of Griggs. The court ruling that Duke Power’s transfer policy did violate Section VII. Neither the two aptitudes test nor the high school graduation requirement directly measured an employee’s capacity for job performance. Also, that both requirements prevented a “disproportionate number” of African Americans from advancing within the company. This may seem like a grand assumption to make, based upon the presented evidence.  After all, the company’s past conduct was not subject to statutory restrictions. Could the court be overgeneralizing the intent or actual impact of the employer’s hiring and promotion practices? Potentially. It’s hard to not view this case with some degree of bias after being aware of Duke’s past conduct. However, there is a greater underlying principle at play.

Section VII of the Civil Rights Act of 1964, directly addresses workplace discrimination. That expends on hiring and internal promotion policies. These statutory constraints on employers are presently enforced by the Equal Employment Opportunity Commission (EEOC). Section of the law also protects employees from retaliation for reporting instances of discrimination.  Per Justia, this section of the act is applicable to conduct that is even superficially neutral.

“…….A seemingly neutral policy of soliciting applications only from sources where all of the potential job candidates are of the same race could have a disparate impact. For example, if an employer has a policy of hiring only applicants who belong to a private country club that has an all-white male membership, this policy would have a disparate impact, adversely affecting minorities and women…..” (Justia).

Such consequences can be the byproduct of coincidence or other uncontrollable factors that the employer should not be held accountable for. One cannot control the demographics of who decides to pursue a career in engineering. It is an entirely different circumstance if the employer is aware of institutional features that skew preferable to one group over another.  This is purely speaking from overtly discriminatory laws and customs such as Jim Crow laws. The normative argument for equal opportunity is commendable but arguing for equality of outcomes is wholly misguided. Legally and philosophically. The courts are not an apparatus for advancing positive rights nor lofty social justice objectives. The Supreme Court justice pleaded to defend the law. Part of that entails ensuring the civil liberties under the Constitution are not violated. That is not to make any loft assumptions about the nature of the constitutionality of equal employment. Rather an aside about the proper philosophical role of the judicial branch.

Prior case precedence and the institutional culture of North Carolina in the early 1970s make convincing circumstantial cases that Duke could be fallible in this case. It would be an overextension to suggest that Duke Power Company was aware of the disparate impact of segregated schools. Even though such an inference would not be too outlandish. But previous case law would suggest that there was a divide between the quality of education received by white students and black students. Justice Burger directly cites this concern in his Supreme court opinion.

“…The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.

The Court of Appeals’ opinion, and the partial dissent, agreed that on the record in the present case, ‘whites register far better on the Company’s alternative requirements’ than Negroes.6 420 F.2d 1225, 1239 n. 6. This consequence would appear to be directly traceable to race. Basic intelligence must have the means of articulation to manifest itself fairly in a testing process. Because they are Negroes, petitioners have long received inferior education in segregated schools and this Court expressly recognized these differences in Gaston County v. the United States, 395 U.S. 285, 89 S.Ct. 1720, 23 L.Ed.2d 309 (1969). There, because of the inferior education received by Negroes in North Carolina, this Court barred the institution of a literacy test for voter registration on the ground that the test would abridge the right to vote indirectly on account of race. Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate based on racial or other impermissible classification….” (Griggs V. Duke 1971).

The defining case reference by Justice Burger was the decision rendered in Gaston County v. United States (1969). This case details how implementing literacy requirements for voter eligibility violates the  Voting Rights Act (1965).  Such a prerequisite for voting was considered overtly discriminatory due to the “…  segregated and unequal schools..” throughout the state.  While private employment and voting rights are not necessary categorically congruent, they can be approximate as civil rights violations. Both have some statutory precedence for being protected under the letter of the law. Neither scenario is identical, there are some parallels, making the court’s decision soundly based on case law.  Gaston is the linchpin for the court’s justification. It is difficult to refute Grigg’s decision when it is backed by the Gaston case. Whether or not a company can be reasonably seen as responsible for the disparate outcomes qualification testing is a matter of further debate. Case law may signal to us that the company is responsible for the disparate outcomes. We could also stretch this argument a little further. There are claims that colleges are still dominated by Caucasian students. If this is true, proportionately more there are more whites with college degrees than African-Americans, could hiring applicants based upon having college degrees qualify as discrimination? This may be a sweeping and sloppy inference, but an interesting intellectual exercise to explore.

The Theory of Two-Pronged Credential Debasement

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The two-pronged theory of credential debasement seeks to explain why so many college graduates are underemployed. This is primarily due to two factors that make significantly reduce a bachelor’s degree on the job market. Not only there a quantitative debasement but also a qualitative debasement.

  • Quantitative Debasement: The vast increase in the number of workers who hold 4-year degrees has made this form of credentialing more common. This variant of human capital documentation no longer helps a potential job candidate stand out to employers. Dispelling the myth that a college degree is a “golden ticket” for a decent salary. Policies to subsidize or provide “free college” mimic the feature of money creation. Whether it be printing more money directly or circuitous forms of money creation through asset purchases. The result is the same, the artificial introduction of more money into the economy. These policies compel more people who would not otherwise attend college to do so. Making college degrees less marketable.
  • Qualitative Debasement: The basis for the argument of a qualitative debasement of college degrees is highly speculative. There does seem to be some connection between the duration of time spent studying and GPAs that present some notable patterns. It stands to reason if students are spending less time studying and are earning higher grades, that there must be a decline in the rigor of their course work. Paralleling the qualitative debasement of currency in ancient Rome. To stretch the coin supply the silver content of the coins was replaced with copper. Reducing the value of the coin by altering the intrinsic value of the coin by changing its physical constituents.

This two-layered assault on the value of college degrees provides some insight into why a sociology major is now working Wendy’s drive-thru window.

Credential Debasement

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What is Inflation?

The concept of inflation (the depreciation of purchasing power of a specific currency) can be applied to other goods besides money. Inflation is directly connected to the Law of Supply and Demand. As the supply of a commodity increases the intrinsic value decreases, as the good becomes more scarce the value of the good increases. This same concept is also applicable to tangible items such as vintage baseball cards and rare art. These are incredibly scarce commodities that cannot be authentically replicated therefore they command a high value on the market. On the other hand, mass-produced rookie cards and replications of Monet’s work are plentiful. Yield little value on the market.

If inflation and the opposite principle of deflation applies to money and other physical goods, could it also be applied to intangible goods? When looking at the labor market this becomes quite evident. Jobs that require skills that are rare or exceptional tend to pay higher wages. There is a notable caveat to this observation, that is compensating differentials. Which is a higher rate of compensation for a job that is risky or otherwise unattractive. The higher wages are due to a paucity of workers willing to accept the job, rather than possessing skills that are in demand.

The Signaling Function of College Degrees.

Over the past couple of decades, credentialing of intangible employment value has become more prevalent. Credentials can range from college degrees to professional certification. One of the the most common form of credentialing has become a 4-year college degree. This category of human capital documentation has evolved to take on an alternate function. Outside of a few notable exceptions, bachelor’s degrees no longer operate as a form of job training, but rather serve a signaling function. George Mason economics professor, Bryan Caplan, argues that this function of a college degree is a signal to potential employers that a job applicant has desirable characteristics. Meaning that obtaining a college degree is more of a validation process than about skill-building. An individual may be intelligent, but if they lack other complementary attributes such as conformity odds are they will not complete college. Dr. Caplan’s signaling model for higher education seems to be substantiated by the fact that the vast majority of college graduates are not using their degrees. It was estimated in 2013, that only 27 % of graduates had a job related to their major.

Due to the signaling function of a bachelor’s degree over the year, there have substantial increases in the number of job seekers possessing a 4-year degree. Retention rates for 4-year institutions reached an all-time high of 81 percent in 2017. In 1900 only 27,410 students earned a bachelor’s degree. This number ballooned to 4.2 million by 1940. That number has increased to 99.5 million. Demonstrating the vast proliferation of Americans with college degrees over the past century. Today, just shy of 40 % of all Americans hold a 4-year degree. Considering the vast increase in college attendance and completion, it fair to question if a college degree retains its “purchasing power” on the job market? Much of the evidence seems to suggest that it has not.

What is Credential Inflation?

The signaling function of college degrees may have distorted by the phenomenon known as credential inflation. Credential inflation is nothing more than “… an increase in the education credentials required for a job..”. Many jobs that previously required no more than a high school diploma now are only accepting applicants with bachelor’s degrees. This shift in credential preferences among employers has now made the 4-year degree the unofficial minimum standard for educational requirements. This fact is embodied in gov the high rates of underemployment among college graduates. It is estimated that 41% of all recent graduates are working jobs that do not require any amount of time in a college classroom. It is quite shocking when you consider that 17 % of hotel clerks and 23.5 % of amusement park attendants hold 4-year degrees. None of these jobs have traditionally required a college degree nor is it a prerequisite currently. Due to a competitive job market where most applicants have degrees, many recent graduates have no means of distinguishing themselves from other potential employees. Leaving them with no other option than to accept lower-paying jobs.

The Two-Pronged Debasement.

The value of the college degree has been debased in ways. First, its value has depreciated due to the vast increase in workers possessing degrees. This form of devaluation mimics the effect of introducing more money into the economy has on the value of a currency. Following the Law of Supply and Demand, the greater the quantity of a good the lesser the value. The hordes of guidance counselors and parents urging kids to attend college certainly have helped this matter. However, public policy has served to amplify this issue. Through various forms of loan programsgovernment scholarships, and other programs all have incentivized more students to pursue college degrees. These policies that make college more accessible are precisely what is devaluing college degrees. The current proposal for “free college” would be more expansive than our current policies. Encouraging more people to attend college making degrees even more common and further depreciated.

The second form of credential debasement is a qualitative form of depreciation. Proving that the quality of a college education has decreased over the years is more difficult to definitively validate. Similar to how the Ancient Romans debased their currency by diluting the silver content of their coins, we have done the same to the college curriculum. College students are rarely studying, but are attaining higher GPAs than previous generations. The average full-time student spends less than 30 hours a week focusing on course work. Amounting to approximately 900 hours a year (average full-time worker devotes 1,800-2,000 annual to their job). Yet, the average GPA has climbed from 2.5 in 1940 to 3.1. A potential sign that college is not as academically rigorous as it once was.

Conclusion.

This is not to say that brilliant students with aspirations of a career in STEM fields should avoid college. For the average student, it may be a malinvestment in their future. Incurring large amounts of debt to work for minimum wage is not a wise decision. When faced with policies and social pressure that have made college the norm, the signaling function of a degree becomes distorted. If students focused more on obtaining skills than credentials, they might find a way to stand out in a job market flooded with degrees.

Abortion: An Oversimplified Issue

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 The abortion debate is arguably one of the most oversimplified contentious issues in all of public policy. The intricacies of navigating the legal statutes and case precedence that shapes the regulations governing the practice are oftentimes are glossed over in public discourse. This rash reductionist approach has shifted a complex topic into a simple categorical dichotomy. Easily making it a fervent “wedge issue” that has formulated many pithy platitudes and “bump-sticker slogans”.  These slogans which are so pleasing to the ear could have effortless you contrived by a marketing team. All operate more like a carefully constructed marketing campaign than a multi-disciplinary analysis. This not only makes the abortion debate stale and uninspiring but highly predictable because both sides of the fence utilize an “all-or-nothing” strategy of argumentation.  This is highly imprecise for a subject that is steeped in nuisance and minuscule details.  Below is the list of disciplines that intersect in the abortion debate:

  • Medicine
  • Science
  • Philosophy/Logic/ Ethics
  • Political Science
  • Law
  • Theology
  • Sociology
  • History
  • Economics

If a pertinent area of study was neglected, I sincerely apologize. However, while not completely exhaustive, this list conveys exactly how complex the issue is. The intersection of all these vast areas of study converges on a single point,  the refutation or the defense of  Roe V. Wade (1972). This one case has become the quintessential Schellingian focal point in the abortion debate. Potentially providing some insight into why the debate is so one-dimensional.   

College: The Opportunity Cost Not Worth Subsidizing

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Despite all of the arguments for attend college, earning a college degree is not without risks.  Not every degree holds the same amount of salability on the job market.  Clearly a degree in engineering will have more utility than a Bachelors in Gender Studies. The opportunity cost of the time spent in college needs to be considered. The student actively forgoes opportunity for hands-on job training when they elect to attend college. Mirroring the costs of an unpaid apprenticeship detailed by the near forgotten French Economist Richard Cantillon (1680-1734) in his seminal work An Essay on Economic Theory.

If his father has him taught a trade, he loses his assistance during the time of his apprenticeship and is obligated to clothe him and to pay the expenses of his apprenticeship for many years. The son is thus dependent on his father and his labor brings in no advantage for several years. The [working] life of man is estimated at only 10 or 12 years, and as several are lost in learning a trade, most of which in England require seven years of apprenticeship, a plowman would never be willing to have a trade taught to his son if the artisans did not earn more than the plowmen……. The professionals themselves do not make all their children learn their own trade: there would be too many of them for the needs of a city or a state and many would not find enough work. However, the work is naturally better paid than that of plowmen. (p.41-42).

While the dynamics are not identical to a student attending college in the 21st century, however, there are some striking parallels. Both practices are assumed to function as an investment in a young person’s human capital. A trade off forgoing income for the present, with the anticipation that this will yield higher potential wages in the future. However, based upon Cantillon’s depiction of 18th century of apprenticeships parents were more entuned to the practical results of their child’s job training. Due to the large costs of losing help on the farm parents were more  likely to consider their child’s aptitudes and the present concentration of skilled labors on the job market. The current “college for all” initiatives have left out an important piece of information out the factual argument for promotion greater college attendance, not all college degrees are equal. On average graduates holding a degree relating to the medical or STEM fields stand to make more money than those who majored in the humanities. This fact is frequently omitted in the onslaught of appeals encouraging young people to attend college. Creating the false impression that an engineering degree is on equal footing with a degree in sociology.

The pragmatic concern of  parents during the 18th century of an over saturated job market has disappeared. Witlessly parents are now pushing their kids to go college not for the sake of obtaining skills, but for acquiring credentials. Meaning that a college degree has turned into a signaling mechanism for employers. It’s an easy metric for qualifying potential candidates and effectively avoiding the  the legal complexities of  employment contingent intelligence testing (Griggs v. Duke Power Company). To a certain extent this signaling model for attaining college diplomas has backfired. As the number of people procuring 4-year degrees increases, invariably like another commodity its value depreciates on the market. Embodying the very essence of the most well know law in economics, the Law of supply and Demand. As the quantity of a good increase its market value  (quantified in money) decreases. The current glut of college educated participants in the workforce is exemplified by the statistics that 41 percent of all recent graduates are underemployed. Recent graduates that are underemployed are five times more likely to remain underemployed five years after graduation. The overall employment rate of college graduates has decreased from 1989 to 2019. Retention rates for 4-year institutions reached an all-time high of 81 percent in 2017. In 1900 only 27,410 students earned a bachelor’s degree. This number ballooned 4.2 million by  1940. That number has increased to 99.5 million. Demonstrating the vast proliferation of Americans with college degrees since the turn if the 20th century.  Considering nearly 40 percent of all Americans have a four-year degree does it still hold the same value on the job market? Clearly not. This is evident when observing the statistics relating to underemployment.

The decreasing value of a 4-year degree has distorted the signaling function of  a bachelor’s degree. This precipitous decline in value is the result of credential debasement. The depreciation of college degrees has resulted from a two-pronged debasement of these ubiquitous form of credentialing.  The first form of debasement that is afflicting college credentials is an increase in the quantity of degrees. Which is analogous to the introduction of more money into the economy through fiscal and semi-fiscal qualitative easing. Based upon the Law of Supply and Demand the greater the quantity of a commodity, the lesser the value. This debasement is exacerbated by federal subsidies for higher ed, government scholarships, and government loans. These policies eliminate the financial barriers for entering college, the result being more students obtaining degrees.  On the surface, this sounds like a good thing. However, with an increase in the number of Americans holding degrees the “purchasing power” of a bachelor’s degree is greatly diminished. Leaving many graduates with no choice but to take jobs that do not require a degree.  Even most positions in an office environment working in sales or customer service do not require any college (or shouldn’t). This phenomena is particular jarring when you consider that 29 % of flight attendants, 17 % of hotel clerks, and 23.5 % of amusement park attendants hold 4-year degrees.

While the first form of debasement is a quantitative debasement of college credentials, the second variety is a qualitative depreciation.  Paralleling the currency debasement practices in ancient Rome. Gradually the silver content in Roman coins was replaced by higher concentrations of copper significantly reducing the real value of the coins, while nominal value remained the same.  The qualitative debasement of academic standards is a metric that is difficult to empirical prove.  However, many experts who believe that higher ed has been “dumbed down” utilize a lot of correlative measures to defend this assertion. Some theorists have cited a decline in SAT reading scores have being indicative of falling standards for college admissions. This talking point is far from the most damning piece of evidence supporting the claim of a dip in academic rigor. Students on average spending 400-900 hours a year on course work. In contrast, a fulltime work devotes 1,8000-2,000 hours annual to their job.  Despite the paucity of time dedicate to their studies students are currently earning higher grades than their parents or grandparent ever did. Back in 1940 the average GPA of a college student was 2.5, now it hovers around 3.1. While it would be unwise to infer causation from correlation, it wouldn’t be foolish to at least notice pattern.

Beyond the hordes of misguided parents and High School guidance counselors  urging students to go to College there is another force pushing them in this direction, public policy.  In recent years, many politicians various forms of “free college” or “student loan forgiveness” as part of their policy platform. Even some Republicans have incorporated moderate compromises to the “free college” proposals. For example, Arizona governor Doug Ducey signed (AZ SB1453) a bill that allows community colleges to offer bachelor’s programs. This measure may seem minor, it helps further debase 4-year degrees. Allowing community colleges to provide bachelor’s degrees acts as a subsidy, by artificially lowering the cost of a 4-year degree. There is a substantial difference in the cost of tuition between junior and senior colleges. Such initiatives encourage more prospective students to attend college, pushing the 4-year degree closer to being the new defacto high school diploma.

Lewis V. Clarke (2017)

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The 2017 case, Lewis V. Clarke , distinguishes the limitations of tribal sovereignty immunity. Especially that liability does not extend to individual actions within the context of “commercial activities”. What is tribal sovereign immunity? Tribal governments much like U.S.-based government entities have immunity privileges shielding officials from ligation. Legal constructs such as Qualified Immunity and Absolute Immunity are examples of common defenses in American caselaw invoked by public officials when facing a lawsuit. Tribal Sovereign Immunity functions in a similar capacity as Absolute Immunity. By definition, Tribal Immunity insulates “… tribal officials and employees..” from compensating for damages “…  and requests for injunctive relief ..”. However, despite the seemingly concrete and concise nature of this definition, there is still room for speculation. Does this doctrine apply to the actions of an employee of a business situated on tribal soil? The Supreme Court’s ruling on the Lewis case guides how logically navigate the intricacies of assigning immunity in the context of “tribal” employees.

The case resulted from an incident that occurred in October of 2011. The petitioner Brian Lewis was traveling on Interstate 95 in Connecticut when he was involved in a motor vehicle collision. Lewis was struck by the defendant William Clarke who was driving a limousine owned by Mohegan Tribal Gaming Authority. Subsequently, Clarke was sued by Lewis for compensation due to injuries sustained in the collision. Citing Clarke’s reckless driving as the justification for damages. Clarke repudiated this claim by filing a motion to dismiss on grounds that trial courts lacked jurisdiction because he worked for a tribal company (Mohegan Sun Casino). Meaning the defendant believed he was entitled to Tribal Sovereign Immunity. However, Clarke’s motion to dismiss was denied and held that he was liable for Lewis’s injuries. In a twist of fate, the Connecticut Supreme court reversed the trial court’s ruling stating that immunity did extend to Clarke as he was acting within his capacity as an employee for a tribal company.

The ruling on the part of the Connecticut Supreme court does bring into question the original intent of tribal immunity. From a prima facie standpoint it appears to be parallel to the privileges allotted to government officials in the U.S. government. The precedence for this protection (regardless of the normative validity) dates back to English Common Law. Does that mean it extends to private businesses incorporated on tribal land? This is a question that the Supreme Court of the United States fleshes out in their decision on the case.

In 2017, the U.S. Supreme Court ruled in an 8 to 0 decision that tribal immunity did not apply to this case. The court reasoned that the fact “… an employee was acting within the scope of his employment for the tribe when the tort was committed was not sufficient to give rise to tribal sovereign immunity”. This is since typically when ascertaining immunity the determines if the compensation is being requested from the sovereign (i.e. a tribal entity). The court expanded upon this reasoning by emphasizing that a lawsuit on an “individual capacity” is only valid against an individual. This logic applies to instances of tribal immunity. Justice Thomas agreed with the ruling, however, citing a different perspective on the reasoning. Stating that tribal immunity does not extend to “commercial activity” transpiring off tribal soil. The late justice Ginsburg suggested that non-tribal members “interacting” off tribal land “… should be subject to general non-discriminatory state laws.” Detailing how the whole court unanimously held that Clarke should be liable for the injuries sustained by Lewis.

The Abilene Paradox And The Collective Action Problem Are Both Cut From The Same Cloth

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This observation may be self-evident or even shallow, however, the Abilene Paradox is nothing more than the complete opposite of the Collective Action Problem. Both concepts demonstrate the pitfalls of the decision-making process but embody the extreme ends of the distribution. One demonstrates the follies of too much agreement in the decision-making process and the other details the difficulties of coordinating action when there are dissenting opinions and interests. These conceptions of the difficulties of managing agreement and disagreement provide us with the precepts to navigate the traps that impede effectual action.

In the Abilene Paradox, we drive towards disaster choices due to no one wanting to be the voice of dissent. The Collective Action Problem details how disagreement can paralyze us in the decision-making process which will immobilize the entire group from acting. Through understanding how to navigate these speedbumps in reaching unanimity will help us more efficiently coordinate various forms of group decision-making. Each of these concepts is applicable in a diverse number of settings ranging from the arenas of public policy, the boardroom, and even in the bedroom. I consent and or agreement is required it is imperative that everyone is on the same page. Not just merely trying to appease one another or being too bellicose and unwilling to compromise.

Why more theorists and management experts have not compared and contrasted these prevalent “agreement traps” is perplexing. However, from a superficial standpoint, one is nothing more than the inverted version of the other. The major difference between the two is most like the conditions under which both arise. These reciprocals may be linked a demonstrating the same problem, however, the defining variable that influences economic agents to either excessive amounts of agreement or following their divergent interests are likely context contingent. Contextual attributes such as incentives, personalities, external costs, penalties, cultural norms, societal affiliations, etc. can sway actors towards committing one of these fallacies over another. Neither of these challenges in the bargaining or agreement process yields optimal results, even us with either poor decision or incapacitated by inaction. Whether you are managing a nation, a company or a household all of these societal structures represent graduations in the scale of decision-making units. Making them susceptible to either over agreement or paucity of agreement, either is detrimental to all parties involved.

It is difficult to ascertain if a “golden-mean” can be found in striking the right degree of agreement. Again, what would strike the right ratio of consent-to-descent is highly contextually based. Choosing the wrong ice cream flavor does not carry the same magnitude of consequences as bombing the wrong country (hypothetically this is not an appeal for a hawkish foreign policy). The stakes are much higher in the latter example than in the first example of a decision gone wrong. A lot of this can be resolved through the constitutional basis for decision-making. In other words, what set of rules are established governing the initiation of choices. The seminal text of Public Choice Theory, The Calculus of Consent (1962) loosely defines constitutional decision-making as being any set of rules (two or more) governing the decision-making process. These rules do not need to be formally codified nor do they need to extend beyond a single person to be constitutional. Any means of quelling the concerns of group members of the fence can secure unanimity, whether it be through persuasion or compensation/ lessening of any external costs imposed on them can settle a disagreement. The role of the compensation would have to be implied in the rules guiding decision-making. Much how the articulation of opposition needs to be tolerated from group members to avoid an agreement for a course of action everyone knew would be calamitous. All because the group members want to conform to what they perceived was the desired action of the group. Anyone in leadership needs to have a tacit or formal understanding with their subordinates or constituents that constructive criticism is welcomed. If not you may be taking a long ride to Abilene!

United States v. Walden (1974)

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In the past decades proceeding with the initiation of the drug war, the concern of the militarization of civilian policing has been articulated by many critics. Where the War on Drugs left off the War on Terrorismonly serviced to intensify this distributing trend in law enforcement practices (Hall & Coyne, 2013, p.488-489). Qualitatively substituting Robert Higgs’s theory of the Ratchet Effect, first formulated in his landmark book Crisis and Leviathan (1987).  To summarize this theory, it simply that government powers are expanded during times of crisis. Once the impending panic of the emergency is over enforcement eases up, but the state still retains the powers and privileges allotted during the emergency.  Proving a framework for understanding the evolution of the militarized police state. America’s crusades against drugs and Jihad have certainly developed the pretext for expansive policing powers and bigger budgets for military-style equipment. One of the most salient examples of this overreach is the use of enlisted military members to enforce civilian law. 

One would assume that we would have some sort of constitutional safeguard or another form of legal protection from the overlap between the execution of military operations the enforcement of civilian law? The Posse Comitatus Act made it punishable by law to use the army (later extended to include the air force) to enforce civilian law). Unless the police action is covered under a constitutional stipulation or congressional approval. The law was passed in part as a reaction (p.2) to the use of federal troops in former Confederate states years after the Civil War had ended. While the act explicitly prohibits the use of military force as a means of enforcing civilian law there are several exceptions. Most notably congressional approval and any stipulations expressed in the U.S. Constitution. A white paper from the Rand Corporation details all of the legally defined expectations to the Possess Comitatus Act:

• National Guard forces operating under the state authority of Title 32 (i.e., under state rather than federal service) are exempt from Posse Comitatus Act restrictions.

• Under the presidential power to quell domestic violence, federal troops are expressly exempt from the prohibitions of the Posse Comitatus Act, and this exemption applies equally to active-duty military and federalized National Guard troops.

• Aerial photographic and visual search and surveillance by military personnel were found not to violate the Posse Comitatus Act.

• Congress created a “drug exception” to the Posse Comitatus Act. Under recent legislation, Congress authorized the Secretary of Defense to make available any military equipment and personnel necessary for the operation of said equipment for law enforcement purposes. Thus, the Army can provide equipment, training, and expert military advice to civilian law enforcement agencies as part of the total effort in the “war on drugs.”

• Use of a member of the Judge Advocate Corps as a special assistant prosecutor, while retaining his dual role in participating in the investigation, presentation to the grand jury, and prosecution, did not violate Posse Comitatus Act.

• The Coast Guard is exempt from Posse Comitatus Act during peacetime.

• Although brought under the Act through DoD regulation, described above, the Navy may assist the Coast Guard in pursuit, search, and seizure of vessels suspected of involvement in drug trafficking. (P.2-3).

The case of the United States v. Walden (1974)  presented a ruling that could be construed as being contrary to the very nature of the Posse Comitatus Act. Citing a lack of clarity for excusing the use of enlisted members of the armed services to intervene in the investigation of two civilians. Even though the use of enlisted Marines does not fit categorically with any of the established exceptions of the Comitatus Act. Ruby and William Walden were convicted of selling firearms to minors and nonresidents based upon evidence gathered in an ATF sting. The Walden’s were convicted of violating federal laws governing the sales of firearms. A vast majority of the evidence collected supporting the state’s case came from three enlisted Marines and a Treasuring agent posing as customers. Even though the use of Marines in such exercises is prohibited by Navy regulations under the Comitatus Act.

How is the use of military personnel justifiable when the court even acknowledges that such measures are outside the limits of the law?  The court reasoned that the “Comitatus Act does not contravene any congressional purpose to exclude Marines and other Navy personnel from the Act’s coverage” the United States v. Walden, 490 F.2d 372, 374 (4th Cor. 1974). Expressing the inference that the act did not extend to the Marine Corps, as the Navy was not explicitly included in the language of the law.  It should be noted that the Marine Corps is overseen by the Department of the Navy. However, there is faulty logic in this reasoning is that the exceptions to the law are detailed in writing. Granted some of the most notable exceptions have come after 1974. Some of the more expansive exceptions have come as a result of the War on Drugs. The Military Cooperation with Civilian Law Enforcement Agencies Act permitted the U.S. military to assist law enforcement bureaus with drug interdiction efforts. However, such a pivotal exception has little pertinence to this case for two main reasons. The first reason is that this case involves the violation of federal gun laws, not any statutes regulating controlled substances. The second reason being, the law wasn’t passed until 1981. Making the strength of this argument rest entirely on a technical loophole, when the clear intent of the Comitatus Act is to prevent military intervention in civilian affairs.

The court also expounded upon the lack of clarity concerning the parameters and enforcement of the Comitatus Act.

In the appeals at the bar, the evidence of the defendant’s guilt is overwhelming. While the bulk of the evidence was obtained by violating the Instruction, there is lacking any evidence that there was a conscious, deliberate, or willful intent on the part of the Marines or the Treasury Department’s Special Investigator to violate the Instruction or the spirit of the Posse Comitatus Act. From all that appears, the Special Investigator acted innocently albeit ill-advisedly. The Instruction provides no mechanism for its enforcement and the Act, where it is applicable, renders the transgressor liable to criminal penalties but does not provide that “[t]he criminal is to go free because the constable has blundered.” People v. Before, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (Cardozo, J.).

United States v. Walden, 490 F.2d 372, 376 (4th Cor. 1974)

From a normative standpoint, the court’s assumptions detailed above are quite irksome. Typically private citizens have held to the letter of the law regards of their ignorance or intentions. One idiom that encapsulates the spirit of this disparity is “ ignorance of the law is no excuse” (ignorantia juris non excusat). It defies reason to exclude public officials, law enforcement officers, and military personnel from this maxim. The recent debate about eliminating Qualified Immunity articulates some of these concerns regarding an asymmetrical administration of law. Creating a conspicuous double standard. Equality in the administration of the law is a purported virtue of the American legal system. It does appear as if the façade vanishes like a misty mirage the deeper one digs into the depths of case law.

Only compounding matters the court still held the convictions against the Walden’s to be valid, distinguishing this situation under which offenders have been released due to Fourth Amendment violations. The court argued that :

“…First, the proscription in the Instruction against the use of Marines in ordinary civilian criminal law enforcement was until today far less clear and far less widely known than the prohibition of the Fourth Amendment against unreasonable searches or the rules of a court requiring an accused to be produced before a magistrate within a designated period after apprehension…”

The United States v. Walden, 490 F.2d 372, 377 (4th Cor. 1974)

The court continued to argue that the action of incorporating enlisted Marines was lawful stating that:

“Secondly, the Instruction expresses a policy that is for the benefit of the people as a whole, but not one that may fairly be characterized as expressly designed to protect the personal rights of defendants” the United States v. Walden, 490 F.2d 372, 377 (4th Cor. 1974)

“Thirdly, the fact that the Instruction provides no mechanism for its enforcement — and especially no criminal sanction for its violation — and that its legal effect was far from obvious, means that admission of the evidence of guilt does not require the court to condone “dirty business.” The United States v. Walden, 490 F.2d 372, 377 (4th Cor. 1974)”

More important than any of the foregoing is the fact that this case is the first instance to our knowledge in which military personnel has been used as the principal investigators of civilian crimes in violation of the Instruction. We are not aware from the reported decisions of other courts that there has been any other violation, let alone widespread or repeated violations. The United States v. Walden, 490 F.2d 372, 377 (4th Cor. 1974).

All four of these arguments are completely asinine. To summarize all the concerns into concise categorizes the court felt due to the public safety concerns and ambiguity it was fair to view these the investigative operations of the Marines as being legal. The irony is that citing a lack of precedence for enforcement or penalties for such a transgression when it is a natural corollary to prohibiting the Airforce and Army in policy actions. Both situations are clear analogs to one another. Would such pedantic games of semantics be played over the crimes of an ordinary citizen? If a citizen was deemed to have used excessive force in a novel manner in a self-defense case, the state would not even for a nanosecond entertain any legal loopholes. Much how the qualified immunity defense functions as an exculpatory hall pass for avoiding ligation. If such actions were imitated by the civilian population,  the court would not condone a defense of ignorance or novelty on the part of the defendant.  

Bootleggers & Baptists: XXIII- National Eviction Freeze

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Most regulations, laws, and government programs are not neutral in their impact on and the economy and society. Frequently picking winners and losers through which subset of the constituency benefits and the other group of voters and taxpayers that the policy discriminates against.  The idiom “regulation cuts both ways” encapsulates the notion that the consequences of regulation cannot be contained to the gains of the beneficiaries. Often the beneficiaries enjoy these perks at the expense of others. Because it is nearly impossible to secure complete unanimity among all citizens with the boundaries of a state never mind a nation; someone invariable will bear the external costs of the policy. Whether it be through higher taxes, revoked privileges, and rights, barriers to entry, or even legal sanctions; someone is bound to get the short end of the proverbial stick.

The advent of the pandemic has spurred a plethora of regulations, ordinances, laws,  and profligate monetary policy that operates to stifle the spread of the virus at the expense of other Americans. The actual effectiveness of these measures is debatable. Some of the oppressive examples of government fiat are flat-out spurious in the purported claims of impeding the transmission of COVID-19. One policy that has epitomized the welding of such questionable measures as means of maintaining public health has been the eviction moratorium. After being extended several times, last week U.S. district court judge Dabney L. Friedrich expressed that the eviction freeze was an overextension of the CDC’s authority. On many accounts, Judge Friedrich was justified in her assessment of the eviction ban. However, the polarizing nature of the policy inevitably makes a policy prescription in either direction discriminatory. Incentivizing both camps to form effective coalitions to combat their political opposition. Fostering ideal conditions for Bootleggers and Baptist’s coalition dynamics, like any other arrangement of political exchange, there needs to be an agent to provide the moral argument for the political activity. Naturally, lurking right around the corner is the beneficiary of that very same policy.

The Bootleggers and Baptists Favoring Overturning the Moratorium:

Coalition A:

Baptists:    Judge Dabney L. Friedrich and Proponents of Constitutional Conservatism.

Judge Friedrich and others voice concerns of the constitutionality of the orders direct by the CDC are quintessential Baptists. Why?  These individuals are arguing from the normative perspective of maintaining justice.  The very taproot of justice begins with making sure that the rules are fair and are being enforced properly. If the formal rules of our society are petty or capricious there is little hope for the nation being just. Hence, why highly esteemed critics such as Judge Dabney are crucial in assessing whether or not government agencies are stepping outside the boundaries of their legal limitations. Operating as a safeguard against overreach and other institutional abuses that need to be reigned in to avoid various conflicts of interest.

In her 20-page refutation of the moratorium order, Friedrich details how the specific actions of the CDC veer outside the permissibly established through legal restraint. The purposed extension of the eviction freeze through June would not justifiable as congress no longer supported this measure. Failing both prongs of the “Chevron Deference” test established in  Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984). Friedrich even expounds upon how the purported powers that congress initially conferred to the CDC fall outside of the scope of the Health and Service Act. Through expressing these concerns for a just administration of law, Judge Friedrich is a Baptist.

Bootleggers:  Landlords.

It would be a mistake to interpret assigning the role of “Bootleggers” to the landlords as an overt value judgment. Objectively, the landlords are the ones who stand to benefit the most from lifting the moratorium. There is nothing wrong with that from a moral perspective. Much like most economic agents, the landlords make an honest living by maintaining house units. Functioning as an odd hybrid between active and passive income. It was estimated that back in December 2020, that renters who were behind on their payments collectively owed $7.2 billion in rent.  Without any further analysis, it is quite clear that is a large sum of money. The moratorium on evictions has been economically detrimental to this sector of the economy.  Even engendering personal ruin for some of these individuals. Any individual in their position would be pleading to end the eviction moratorium. Otherwise, you are stuck having to provide maintenance and utilities for apartments where the resort is to pulling money out of your savings to continue providing housing services.

The Bootleggers and Baptists Favoring the Moratorium:

Coalition A:

Baptists:  The Biden Administration

On the opposite side of the fence, the Biden Administration is working to appeal Judge  Friedrich’s ruling.  While there is a potential of a dual-role actor dynamic lurking in the background, for simplicity’s sake we will assume the prima facie perception of this being a measure implement for the “public good”. The Biden Administration has defended maintaining the moratoriums on the normative basis of emphasizing the struggle of workers who have lost their jobs due to COVID-19. The  Whitehouse website has published statements detailing the statistics and numbers regarding renters impacted by the pandemic. Whether or not this concern for the economically disadvantaged is opportunistic or not is difficult to ascertain. However, regardless of the intentions, Biden’s Whitehouse assumes the role of the white knight, fighting on the behalf of the downtrodden. Please keep in mind, this assessment is based upon taking the statements made on the behalf of the president at face value.  Since all of the arguments have a moral dimension to them, we can only assign Biden and his Administration the role of Baptists. Acting as Judge Friedrich’s philosophical foil, defending positive rights while the Judge is actively defending negative rights.

Bootleggers:   The Renters.

Once again, assigning the role of “Bootleggers” to the renters impacted by the pandemic is not a value judgment. Much like the landlords, they are merely responding rationally to policy through attempting to preserve their self-interest. Naturally, much how no one would want to give their main source of revenue, no one would want to voluntarily surrender their shelter even if they lacked the means to pay their rent or mortgage.  However, the renters are “Bootleggers” in the narrow definition of the phrase, because they do stand to benefit from extending the duration of the eviction freeze.

The Eviction Moratorium Has Been Overturned

Photo by Andrea Piacquadio on Pexels.com

The economic fallout of the COVID-19 pandemic has radiated throughout the global economy. The damage extends beyond the ex-ante pessimism of market speculators on Wall Street. Many measures implemented to prevent the spread of the virus has resulted in compounding the economic trauma. Some economically detrimental policies that have little utility in containing the virus are being touted as a crucial initiative for maintaining public health. It would be imprudent for someone without a medical background to argue against the veracity of such claims. However, many of these tradeoffs are merely band-aid measures that will have severe downstream consequences. One prominent example of this was the eviction moratorium.

The debate over this policy position has recently been featured in the headlines as U.S. District Judge Dabney Friedrich motions to end this law. She forms a compelling legal argument for how the continuation of this policy would constitute an overextension of the CDC’s authority. Detailed in her order is the legislative history of the eviction moratorium spurred by the economic fallout of COVID-19.

Timeline:

  • March 13th, 2020- Former President Donald Trump declares a national emergency due to COVID-19.
  • Two weeks later the CARES Act is signed into law. Part of this relief bill was a 120-day restriction on evictions for rental properties that “participate in federal assistance programs or were subject to federally-back loans”. This feature of the act was set to expire in July.
  • August 8th, 2020- the then-president “… issued an executive order…” instructing the director of the CDC and Secretary of HHS to evaluate if continuing the ban on evictions due to nonpayment was a reasonable measure to stifle the spread of the virus.
  • September 4th, 2020- The CDC issues an order (42 C.F.R. § 70.2. 85 Fed. Reg. 55,292) temporary hold on evictions to prevent the spread of COVID-19. The agency invoked a section of the Public Health and Service Act § 361. Reasoning that is measure is necessary for enabling individuals to self-isolate and social distance.

361. (a) The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary. (b) Regulations prescribed under this section shall not provide for the apprehension, detention, or conditional release of individuals except to prevent the introduction, transmission, or spread of such communicable diseases as may be specified from time to time in Executive orders of the President upon the recommendation of the Secretary, in consultation with the Surgeon General.

( Health and Service Act, Sect 361, P.377-378).

  • December 31, 2020- Originally set to expire, however, the CDC order was extended as part of the Consolidated Appropriations Act passed by congress. This extension was slated to expire on March 31st,2021.
  • March 31st,2021- CDC extended the federal moratorium on evictions to June 30th,2021 to prevent further spread of the virus. This new extension was predicated upon “…updated its findings to account for new evidence of how conditions had worsened since the original order was issued, as well as “[p]reliminary modeling projections and observational data” from states that lifted eviction moratoria “indicat[ing] that evictions substantially contribute to COVID-19 transmission.” Id. at 8022…”

Friedrich expounds upon the legal facts that indicate that the proposed extension through June is a jurisdictional overreach on the part of the CDC. One of the biggest questions in assessing the veracity of the agency’s capacity to impose restrictions on evictions is whether this power was conferred to the CDC by congress. Since the “… CDC Order was intended to have the force of law…” (p.9) meaning the two-prong test established in Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842 (1984) must be applied. What is also known as the test for  Chevron Deference or administrative deference. Depending on the action taken by the agency “…judicial deference is appropriate where the agency’s answer was not unreasonable, so long as the Congress had not spoken directly to the precise issue at question…”. Friedrich points out that the court needs to review if the congress has discussed the matter, if so then no further consideration is required (p.9-10). If the action and interpretation of a government bureau or agency do not fulfill the first test, the court needs to ascertain if the agency interpretation is valid and if so “defer to it” (p.10).

The imposition of the moratorium on evictions fails the criterion of the Chevron test through stepping outside of the boundary congressionally approved actions. Pursuant under section 264 of the Public Health Service Act the CDC does have the authority to implement measures to prevent the interstate and international spread of the virus (p.10). The enumerated list of possible measures that are allotted to the agency is not boundless. Per the precise language in section 264, the authority for agency action is centered upon “specific targets” that operate as a vehicle for transmitting the virus (p.11). Friedrich notes that placing nationwide bans on evictions does not meet this first test of congressionally allocated authority. She also conveys that including eviction bans as being a valid use of the CDC’s authority would be a distortion of the language present in Section 264 (p.12). Extending the CDC the power to intervene in the transactions between landlords and tenants presents a constitutional issue of overreach on the part of the agency (p.14). Per Friedrich’s interpretation of the law, the CDC doing so exceeded the limits of the Commerce Clause and going above and beyond the powers congress intended for the agency to possess. (p.14).

The latest purposed extension coming directly from the CDC has not been blessed by Congress. Placing the veracity of this order in question. Congressional approval has been granted to extend the eviction moratoriums twice over the past year. This approval manifesting in the CARES Act and the Consolidated Appropriations Act (p.15). Since congress withheld any support for extending the eviction freeze beyond January 31st, 2021; any action taken by the CDC can only rest on the content “…Public Health Service Act alone…”(p.18). As previously demonstrated the eviction measures are not defendable within the context of the law. Making any further extension from February 1st an exertion of extralegal authority without the back of congress or any corresponding statutes.