Due Process: Holder vs Colbert. Art or Reality. Choose.
This is the object:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,… nor be deprived of life, liberty, or property, without due process of law;
This is Art:
Did you ever have that feeling in your lifeThat someone was watching you?You don’t have no reason that’s rightBut still he’s there watching youSomeone is waiting just outside the doorTo take you awayEverybody knows just what he’s there forTo take you away
Lunatic Fringe – in the twilight’s last gleamingThis is open season, but you won’t get too far‘Cause you got to blame someone for your own confusionWe’re all on guard this time against the Final Solutionall on guard this time
This is the reality. 44% of our wealth is due to rule of law.
Worldwide, the study finds, “natural capital accounts for 5 percent of total wealth, produced capital for 18 percent, and intangible capital 77 percent.” “Rich countries are largely rich because of the skills of their populations and the quality of the institutions supporting economic activity,” the study concludes. According to Hamilton’s figures, the rule of law explains 57 percent of countries’ intangible capital. Education accounts for 36 percent.”
“Trust” seems to be the real intangible the report is talking about. We as a whole can be educated to the hilt, but if we can’t trust that our efforts will be put to constructive use, we have problems. Think habeas corpus, FISA, election fraud, threatening of the press, intimidation of speech, extension of free speech to none human entities, the equating of one voice-one vote to spending of one’s money, K Street project, etc. Think of the use of fear. If only a few are educated to the hilt or have access to the governance, we can not build capital.
Which is art, which is reality?
Due process and judicial process are not one in the same. The Constitution guarantees due process, it does not guarantee judicial process. Erik Holder 3/5/12*
Due process just means there is a process that you do. Steven Colbert 3/6/12*
Which is art, which is reality?
In response to the act perpetrated…Congress has authorized the President to use all necessary and appropriate force against those groups. Because the United States is in an armed conflict… Eric Holder 3/5/12*
We’re at war with Terror. Therefore, the President can blow up any American citizen he chooses until we win the war by defeating the idea of being afraid. Steven Colbert, 3/6/12.*
Is this art or reality?
Due process developed from clause 39 of the Magna Carta in England.In clause 39 of the Magna Carta, John of England promised as follows: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”
As the U.S. Supreme Court has explained, a due process requirement in Britain was not “essential to the idea of due process of law in the prosecution and punishment of crimes, but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used.”[11]
Rule of law equates to trustNot sure I fully agree with this statement. You can have an authoritarian government that basically rules by fiat, where rules are arbitrary and subject to the whim of the ruling political class (which seems to be where the U.S. is headed), but also one where most people trust one another and the government. You can also have a government where rule of law is fairly widespread and yet a majority if the public still does not trust the government.Rule of law is rule of law, trust is trust. They may correlate to some degree, but it’s not perfectly 1:1.
“Rule of law equates to trust“Not sure I fully agree with this statement. You can have an authoritarian government that basically rules by fiat, where rules are arbitrary and subject to the whim of the ruling political class (which seems to be where the U.S. is headed), but also one where most people trust one another and the government. You can also have a government where rule of law is fairly widespread and yet a majority if the public still does not trust the government. Rule of law is rule of law, trust is trust. They may correlate to some degree, but it’s not perfectly 1:1.
I got about half way through this rambling mess and quit reading.
If you are talking about shooting “citizens who are non-military combatants aka terrorists” well, the law may be a little fuzzy but the morality seems to be on our side.
“If you are talking about shooting “citizens who are non-military combatants aka terrorists” well, the law may be a little fuzzy but the morality seems to be on our side.”
Sorry. What side is that?
Really rusty? “the law may be a little fuzzy but the morality seems to be on our side.”
We, humanity has done the “morality on our side” approach many times. Never worked out too well.
Harm, rule of law as invisioned and implemented via our constitution only leads to trust within society. I know of no history where rule by “fiat” lead to over all trust. I know history where “most” people trust each other yet don’t trust a government by the people. Certainly, if we start mixing and matching, then we are not talking about our system of governance.
Also, this is not a chicken or egg question. The economics is clear as it relates to trust and trust is related to how one’s judicial system is preceived.
The following should have “of no” in sentence: I know of no history where “most” people trust each other yet don’t trust a government by the people.
And even if a citizen could be described as being a “non-mililtary combatant” who is it that makes that determination and how is it that that determination is made. That’s the point of due process of the law.
And when did the CIA or the military or any member of Congress or the White House staff earn such trust as to be trusted with determining the guilt of an individual? If you don’t trust the government to devise health care funding legislation how the devil do you come to trust that same government to determine who is a danger to the country?
I can provide one example from recent personal experience: The Bush II Administration.
I cannot think of a worse example of U.S. leadership more hell bent on undermining rule of law and substituting its rule by fiat –Guantanamo detainees, warrantless spying on citizens, torture, appointing loyal partisan hacks to government posts, making no bid contract deals with corporate backers, revolving door lobbying, corruption, etc. As Dick Cheney once famously said, “we create our own reality”.
And yet for much of his Presidency, he was quite popular and trusted among a majority (or large percentage) of a very docile and religious American public, many of whom literally saw him as a representative of the Lord. I have many Fox News viewing relatives who wish he were *still* President, because he’s a “real American” and “one of us”.
Btw, I’m not saying there isn’t a positive correlation between trust in govenment and rule of law, I’m just pointing out that it’s not always perfectly 1:1.
STR provides a perfect example of what I was trying to express. You can have a majority of the public *approving* of the actions of their government (aka “trust”), even when those actions clearly violate rule-of-law, both in principle and letter.
Another way of looking at it is this:
The better educated and more secular-minded an American citizen is, the more likely s/he will tend to care about abstract ideals like “rule-of-law”, equal protection, due process, civil rights, etc. The less educated and more religious that American is, the less s/he will care about abstractions and the more s/he will care about personal safety/security, income, food, shelter, faith and immediate family.
I can tell you from direct observations and conversations from members of my own family that this is true. While people who visit Angry Bear may place a very high value on civil rights and rule of law, I don’t think this is true at all of most Americans. In fact there have been recent surveys that indicate most Americans would be quite happy if separation of church and state were eliminated –provided that *their* preferred religion became the official state religion, of course.
I agree with you on both your comments. However, those who wish Bush was back are trusting their fear and electing people who say not to trust government. The message Since Reagan dominately has been not to trust government. The message has worked such that people who say don’t trust government get elected by those who don’t trust to undo government. Those elected and doing the undoing point to the bastardized application of “rule of law” as proof of the dictate “don’t trust government”.
It is a terrible catch 22 of sorts. And, because of it, we are ruining our economy. If the schools of economics were worth anything, this relationship would be part of the discussion. As equality goes so goes trust which make it all easier to persuade people with the montra: don’t trust government.
At the same time we are looking at over all trust within society. Don’t trust is pals with fear.
HARM
i think you are right, but there is a little danger in your approach. “us” vs “them” is about all you have to rely on in family or tribe size disputes. works pretty well in a Darwinian sort of way.
Inventing “rule of law” was a high end concept… i suppose it developed when it was no longer clear just who “us” was, and who “them” is. I was thinking that this might have something to do with the growth of empire, but neither my scholarship nor my capacity for complexity is up to the job of tracing origins.
Just enough to say that in America today us/them seems to them to be “normal people” vs “the government and liberals.” To liberals it seems to be “us educated smart people” vs “those dumb ignnorant religious people”.
And I think the real us/them is us the ruled vs them the rulers… who are who they have always been. The are smart enough to keep us divided and squabbling about stuff that mostly doesn’t matter or shouldn’t matter, while they do “whatever is necessary” to maintain their power… whether it is “right” or “left” at the time.
in case you got lost in all that rambling… and still care… i believe that “rule of law” is better, safer than rule by what the president says. but i have seen too much of what rule of law looks like to have any illusions about it’s ultimate decency. for that we need to be a decent people… and oddly enough, i think that most of what we know about decency we learned from … well the people the “religious right” claim to be, though of course they are not.
You are narrowing “trust” to “trust in government”. This notion of trust as a lubricant for economic activity has been around a long time, and generally refers to trust between economic actors. Government creates the conditions for trust between others by enforcing contracts and law. If government is intrusive and cupidious (cupidious within limits), but enforces law between private actors, then private actors will come to have a higher level of trust among themselves, despite a nasty government.
“the rule of law explains 57 percent of countries’ intangible capital”
“and intangible capital 77 percent”
“44% of our wealth is due to rule of law.”
I’d think your 44% estimate is low. Intangible capital, over time, has accounted for much of the value of tangible capital, through imbedding of technological progress. In a one-time snapshot, the rule of law (using the inputs you’ve provided) accounts for that increment of wealth that shows up independent of imbedded technology in physical capital. In addition, today’s “intagible capital” has been fostered by knowledge imbedded in capital in a prior period. We learn things from the use of powerful microscopes, computers and the like in this period only because intagible capital of a prior period was made tangible. Those research tools, in turn, help expand our knowledge in future periods. The great cycle of smarts.
Over time, the rule of law may account for most of the difference between hunter-gatherer levels of wealth and our own.
I posted in response to HARM’s first comment, before I read the rest, about the meaning of “trust” in the context of economic research. It seems most commenters here read trust as “trust in government”, perhaps because the two may have been conflated in the original post. In general, “trust” as used in the sort of research Daniel cited has to do with trust between people, not just trust of government. (Click the link and you’ll see.) Now, there is a whole bunch of overlap between interpersonal trust, trust of government, perceptions of fairness and the rest, in come distribution and the rest, so trust in government surely matters, but it ain’t as simple as “trust government and grow rich”. Mostly, trust means “trust each other” and that requires a social and legal setting of a particular type.
Anyhow, there is little that I am aware of the research on social trust that suggests extra-territorial killing and weakening of habeus corpus would lead directly to reduced economic welfare. What will lead to reduced economic welfare is the perception that government won’t or can’t enforce the law (“we can’t prosecute bankers, because the economy will come to a grinding halt”), and the widening of income and wealth distributions.
I posted in response to HARM’s first comment, before I read the rest, about the meaning of “trust” in the context of economic research. It seems most commenters here read trust as “trust in government”, perhaps because the two may have been conflated in the original post. In general, “trust” as used in the sort of research Daniel cited has to do with trust between people, not just trust of government. (Click the link and you’ll see.) Now, there is a whole bunch of overlap between interpersonal trust, trust of government, perceptions of fairness, income distribution and the rest, so trust in government surely matters, but it ain’t as simple as “trust government and grow rich”. Mostly, trust means “trust each other” and that requires a social and legal setting of a particular type.
Anyhow, there is little that I am aware of the research on social trust that suggests extra-territorial killing and weakening of habeus corpus would lead directly to reduced economic welfare. What will lead to reduced economic welfare is the perception that government won’t or can’t enforce the law (“we can’t prosecute bankers, because the economy will come to a grinding halt”), and the widening of income and wealth distributions.
Yes Kharris,
I see the abuse of the law that has allowed weakening of habeus corpus and territorial killing as possible due to the over all effect of government unwilling or in capable as you say of enforcing the law. Though it appears not just unwilling, but also selective use of the laws to achieve a means. It think this is even more harmful regarding overall trust.
The 44% was simple using the WB study 56% of 77% is 44%. Simple for discussion sake.
Daniel,
Though I applaud your sentiment, I can’t go along with your argument.
The argument you seem to make in the original post is that we are in economic trouble (or will be) because trust is eroding, and provide as evidence governmental behavior that should lead to less confidence in our leaders, but not in each other. Now, in response to my point that trust between economic actors is what lubricates economic activity, you say that you see a connection between lax law enforcement in the US and bad US behavior abroad. This is looking like an argument that changes into whatever it needs to be. You link to research, giving the impression the research supports your position. It doesn’t. In the end, the claim you are making is that the issues of habeus corpus and assassination overseas is “like” the issues that research has shown to be related to communal trust and good economic performance. The technical term to describe drawing that sort of connection is “thin reed”.
Killing folks because you don’t like them or because they scare you is bad. All by itself. It doesn’t need to be bad for the economy to be bad, and there is nothing you have shown that suggests it is bad for the economy. It’s just bad, all by itself.
I agree, and I think it’s a shame that respect for civil rights (except the 2nd Amenment), due process, equal protection, and rule of law have somehow become rebranded as “liberal issues” over the past 30 years or so.
You may disagree, but I would place significantly more blame on conservatives (rank-n-file citizens as well as leaders) for making this happen. However, I see you point with regards to the danger of stereotyping all conservatives as “those dumb ignnorant religious people”. If we could somehow get past the us/them Culture War as a country, we could vastly improve the terms of debate, the options allowed on the table (our “Overton Window”) and possibly get some real consensus behind badly needed political and economic reforms.
However, our corporate and banking overlords really don’t want that to happen now, do they?
@coberly, I largely agree, and I think it’s a shame that respect for civil rights (except the 2nd Amenment), due process, equal protection, and rule of law have somehow become rebranded as strictly “liberal issues” over the past 30 years or so, when they should be American issues.
You may disagree, but I would place significantly more blame on conservatives (rank-n-file citizens as well as leaders) for making this happen. However, I see you point with regards to the danger of stereotyping all conservatives as “those dumb ignnorant religious people”. If we could somehow get past the us/them Culture War as a country, we could vastly improve the terms of debate, the options allowed on the table (our “Overton Window”) and possibly get some real consensus behind badly needed political and economic reforms.
However, our corporate and banking overlords really don’t want that to happen now, do they?
Just to be clear about this: my critique was not about my *own* respect for rule of law, the importance of equal protection, civil rights, due process, etc. To me, they are vital for a functioning democracy to work. It’s about the general lack of respect for those things that I perceive among many of my fellow citizens.
If the Bill of Rights were (literally) shredded today, aside from a few tears over the 2nd Amendment, I doubt that many religious conservatives would be particularly upset about it. And that scares me too.
HARM
no, i don’t disagree at all. in fact, i agree entirely.
i should probably stop being so hard on “liberals,” and just cheer when even liberals are smart enough to note that a liberal president and attorney general are destroying the constitution and the rights that we thought would protect us from the kind of government we fought a war to free ourselves from.
just, do, be careful of making enemies of your fellow workers, even if they are dumb enough to swallow Rush lies.
kharris
i think i sort of agree with you. but i also think that “the rule of law” may not have been as important as the horrors of the industrial revolution, the “stimulus” of ww2, and, on the other side of the world, the horrors of stalinism.
kharris
fine. now try that argument “in the long run” and what happens when “the law” is managed by the thug class.
i don’t know. it seems to me the Romans and the British Empire, and even the Soviet Empire did fine for awhile. and of course the American Empire.
but it all looks to me like the latter is hanging onto a thin reed, because the thug class manages ONLY for its short term profit. and that does seem to have something to do with the erosion of human rights at home and abroad.
on the other hand the Egyptians pulled it off for about five thousand years.
Kharris,
Now, in response to my point that trust between economic actors is what lubricates economic activity, you say that you see a connection between lax law enforcement in the US and bad US behavior abroad. This is looking like an argument that changes into whatever it needs to be.
Then you miss understand me. My point is that as you note, as trust among the masses deteriorates so goes the economy. That the WB has noted that a large portion of our wealth generation is our legal system and the abuses by our interpreters of tthe law (Supremes, Presidents, AG’s, Congress) which has taken place regarding domestic application and what we can do regarding our international activities, trust becomes an issue which will effect our economy.
If you are saying that the attitude toward the use of law, the interpretation of law, the application of law domestically is not connected to or related to or coming from the same mindset when we look at our laws regarding our international activities, then I disagree. To me, it is the same thinking that allowed waterboarding and indefinite detention and even the Iraq invasion as the domestic allowance of the telecom’s spying, the Obama looking forward nonsense, the relaxing of regulations, the addition of laws focused minimally vs broadly such as banning gay marriage, etc, etc, etc.
All of it breeds distrust in the legal system which is our governance system. The rhetoric that is summed up “don’t trust the government” that spills over into don’t trust your neighbor (gay, Muslim, immigrant, etc) manifested in the attempt to and even succeed in passing laws codifying such relationships of distrust is the same language that has brought us to where one party felt it reasonable to pass laws effecting 52% of our population, women and laws saying we can shoot citizens no questions answered.
It’s all distrust. Pick your starting point, I don’t care. It all ends up in the same results: A distrusting social order with the distrust directed in so many directions because it started from so many points that social activity is inhibited. That’s our economy going to hell.
At the same time, from the reading I’m doing, internationally, the US is now being perceived more as a threat than a savior if we were to use an anolog scale of 0 to 10, 5 being neutral. That will effect our economy too. This is the international law aspect.
To everyone reading, I’m not claiming to know any particular origin of distrust. I’m just saying that there is enough evidence to show we are a distrusting nation and that such distrust is hurting the economy. I have pointed out an example of Holder vs Colbert as the subtleties of how distrust can be bread and internationally how the distrust is being coalesced in Holder apparently using an English interpretation of “due process” vs our historic application which also leads to distrust.
Becker, and HARM
I agree with you. I think even kharris agrees with us substantively, after he’s done making his pedantic points.
There are two things though.. which I don’t claim to have the last word on. First is that “trust” is something we have had among citizens and for the most part between “ordinary” citizens and the government. It makes a huge difference in the economy. Question is, are we now losing that trust.
If it’s “only” a question of killing “terrorists” it won’t make much difference…after all “we” killed the Indians without losing trust in our financial institutions and basic fairness of the law. When people you know start disappearing, it may be something else entirely.
Second, I guess, is that “trust” may only need to be trust withing the context of financial transactions. And that, I think, sustained the British Empire in spite of bad treatment of both “the natives” and their own lower class. But I am not sure that “trust” can be maintained when it looks like the whole financial industry in America is founded on scamming the masses. And then the law appears to be twisted to suit the financial industry.
Becker, and HARM
I agree with you. I think even kharris agrees with us substantively, after he’s done making his pedantic points.
There are two things though.. which I don’t claim to have the last word on. First is that “trust” is something we have had among citizens and for the most part between “ordinary” citizens and the government. It makes a huge difference in the economy. Question is, are we now losing that trust?
If it’s “only” a question of killing “terrorists” it won’t make much difference…after all “we” killed the Indians without losing trust in our financial institutions and basic fairness of the law. When people you know start disappearing, it may be something else entirely.
Second, I guess, is that “trust” may only need to be trust within the context of financial transactions. And that, I think, sustained the British Empire in spite of bad treatment of both “the natives” and their own lower class. But I am not sure that “trust” can be maintained when it looks like the whole financial industry in America is founded on scamming the masses. And then the law appears to be twisted to favor the scammers.
oh, yes, Holder. his idea of “due process” appears to have some ‘constitutional’ backing. That is the SC has bought it before.
Nevertheless, he is a weasel. When you hear someone straining like this to reinterpret the “common sense” meaning of the law, you know you are dealing with an evil person.
Agree with the top comment. The rule of law is designed in large part to deal with the absence of trust.