Law and lawyers – Helian Unbound

Freedom of Religion, Atheism, and the Pledge of Allegiance

Freedom of religion in the United States has always been a matter of freedom for me, but not for thee. True, James Madison and Thomas Jefferson, two of the most influential of our founding fathers, favored the complete separation of church and state, but they belonged to a minority. The majority went along with the language of the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” but only as a form of armed truce. Most of the delegates to the Constitutional Convention were hardly in favor of full religious liberty. They favored the First Amendment prohibition, not because of an altruistic desire to proclaim complete liberty of conscience as a human right, but of the great diversity of Protestant sects in the country at the time, and their desire to insure that there would be no interference with the one they happened to favor.

As may be seen in the records of both the Great Convention and the state ratifying conventions, the clause was accepted with mixed feelings. The fears of many others were expressed by a farmer at the Massachusetts convention, who “shuddered at the idea that Roman Catholics, Pagans and Papists might be introduced into office, and that Popery and the Inquisition may be established in America.” Furthermore, at a time when State sovereignty was taken a great deal more seriously than it is now, the States did not consider the federal prohibition a barrier to their own establishment of any religion they happened to prefer. Several of them actually had State religions at the time the Constitution was ratified. There also existed support of the clergy by general taxation, provision for religious instruction, religious tests for office, and all the other traditional accompaniments of an established religion.

As one might expect from their strong religious tradition, Protestant Christianity was established in practically every one of the New England states. Legally binding tithes existed in Vermont until 1808, the more “liberal” constitution of Connecticut of 1818 provided, “No preference shall be given by law to any Christian sect or mode of worship… And each and every society of denominations of Christians in this State shall have and enjoy the same and equal powers, rights and privileges.” Maryland allowed taxation to support Christianity as long as no sect was favored, and no Jew could hold an office in the state until 1851. It was an idiosyncrasy of that State’s law that a Negro’s testimony was admissible in court against a Jew, but not against a Christian. Massachusetts confined the equal protection of the laws to Protestant Christians until 1833, a Pennsylvania court held that “Christianity, general Christianity, is and always has been a part of the Common Law of Pennsylvania,” and so on, and so on. Indeed, the disabilities applied to Catholics and Jews in this land of “religious freedom” remained in force in some states long after those sects had achieved full emancipation in Great Britain in spite of its established church.

As for atheists, the idea that freedom of religion applied to them in the United States has always been a myth. In most States they were incompetent to testify until the last decade of the 19th century. As for the guarantee of religious liberty in the Constitution, it was intended, according to one state court, “to prevent persecution by punishing anyone for his religious opinions, however erroneous they might be. But an atheist is without any religion, true or false. The disbelief in the existence of any God is not a religious but an anti-religious sentiment.”

And so it is that, at least in some sense, right wing evangelicals are quite right when they declare that the United States is a “Christian nation.” They are in fine company in that regard, as the “Christian nation” meme was also commonly found in the pamphlets of the Ku Klux Klan in its heyday. True freedom of religion has never existed in this country, and those who are most prone to make pious speeches about defending the ideal of Liberty are typically the first to deny its substance. It should therefore come as no surprise that atheists should still be fighting against their relegation to the status of second class citizens in the “under God” clause of the nation’s Pledge of Allegiance.

The justices of the Supreme Court used all the familiar specious arguments in upholding that blatant denial of full citizenship to atheists in 2004 that earlier courts had used to condone prayer in the public schools. As in that earlier battle, they claimed that children who objected could choose not to recite the pledge, completely ignoring the stigma such children would bear by segregating themselves in that way. Today we might say that, by so doing, they would publicly proclaim their adherence to an outgroup, deliberately inviting the hostility of the Christian ingroup. In view of the Supreme Court’s ruling that there is a de facto established church in this country after all, atheists have now turned to the states for relief. As noted in an article in The Atlantic,

So the American Humanist Association has mounted a state constitutional challenge to the pledge in Massachusetts state court. On behalf of an anonymous Godless couple (Jane and John Doe) and their three children, the AHA argues that mentioning God in the pledge violates guarantees of religious equality in the state constitution.

While I am not optimistic, I certainly hope Jane and John Doe win the day. I would cringe with shame for my species if aliens really did visit this planet and discover that, not only do a majority of its human inhabitants still believe in imaginary magical beings, but that belief in the same is actually still enshrined in the law of many of the states into which we are organized. Beyond that, as one who volunteered to serve this country in Vietnam at a time when it was anything but popular to do so, it would please me if soldiers of a later day, at least, could pledge their allegiance to their country according to the established formula without at the same time falsely declaring their belief in a fantasy.

The Armed Citizen: Bloggers in a Land Without Justice

We live in a country where anyone can be destroyed at any time by a spurious lawsuit. The costs of litigation are such that it is absurd to speak of “winning” a defensive lawsuit. Is it “just” to force people who are entirely innocent of any wrongdoing to hand over thousands of dollars to lawyers? That is the outcome whether they “win” or not. We live in a land without justice, exploited by a dysfunctional legal system of our own making.

As noted by Insty, the latest victims of our system of “justice” are the authors of a little blog, The Armed Citizen, who are being sued for “copyright infringement” for quoting a few lines from a newspaper. In their words,

On July 21st, The Armed Citizen received an indirect and informal notice of a lawsuit against this website and its owners, David Burnett and Clayton Cramer.

The suit, reportedly filed in US District Court on July 20th, alleges that The Armed Citizen and its owners “willfully copied” and infringed on original source content from the Las Vegas Review-Journal.

According to news reports, Righthaven LLC has filed lawsuits against no less than 80 other political websites and individual blogs for “infringement.”

Righthaven has offered no prior contact, cease-and-desist warnings or any attempt at good-faith resolution whatsoever.

To the best of our knowledge, statutory damages can only be awarded if the plaintiff owns copyright on the articles in question. Righthaven sought and received a copyright on at least one of the articles in question on July 6…several months after the alleged offense. Clearly, this group is interested in money, not resolution.

In other words, the lawyers have now come up with a mesothelioma scam just for bloggers. It’s surprising to me that the citizens of this country have so supinely accepted a dysfunctional system that enables massive exploitation by legal parasites. Apparently most of us somehow assume it will always happen to the other guy, and not to us – until it does happen to us. If ever a system deserved to be smashed, our legal system is it. If ever a profession deserved to be nationalized, our legal profession is it.

Don’t Like People who Threaten Bloggers?

Then consider hitting Little Miss Attila’s tip jar. She’s being threatened by a religious nut case, is not independently wealthy, and could use your help. Insty and Eric at Classical Values have noticed, and I hope some of the other big dogs will pick up on the story as well. This cockroach needs to be dragged into the light.

The Rabbit People and their Eternal War

White House Communications Director Dan Pfeiffer chimes in on the latest Cheney-Obama dustup:

Second, the former Vice President makes the clearly untrue claim that the President — who is this nation’s commander in chief — needs to realize we are at War. I don’t think anyone realizes this very hard reality more than President Obama. In his inaugural, the President said “our nation is at war against a far-reaching network of violence and hatred.”

Charming! The rabbit people on the left now agree with the rabbit people on the right that “we’re at war.” The only problem is that we’re not. We are being attacked by an international terrorist organization. They carried out one successful attack on our homeland nearly a decade ago that cost the lives of 3,000 people give or take. In the intervening years we have lost more than 100 times that many in traffic accidents, not to mention a far greater number of serious injuries. Nearly a hundred times that number have been killed by handguns. Shouldn’t we declare war on automobiles and handguns as long as we’re at it? From the time of the Decembrists until the October Revolution, Russia was constantly under attack by a host of anarchists, social revolutionaries, Bolsheviks and other assorted radical terrorists. They succeeded in assassinating Czar Alexander II and many other important government officials. Dynamite gained the nickname “Russian candy,” yet it never occurred to the Russians or the rest of the world, for that matter, that Russia was “at war” with these people. Anarchist terrorism was pervasive in Europe and the United States in the last decades of the 19th and the first decades of the 20th century. The terrorists succeeded in murdering French President Carnot in 1894, bombing the Greenwich Observatory in London in the same year, and assassinating President McKinley in 1901. They carried out lesser known indiscriminate bombings in theatres, marketplaces and a host of other venues, killing thousands in the process. It never occurred to any of the countries involved that they were “at war.”

Now we face a similar threat, and the rabbit people insist we are, in fact, “at war.” Indeed, they get red in the face and begin frothing at the mouth if anyone begs to differ with them. I, for one, beg to differ with them. One always finds these same zealots howling about “Liberty” and “Freedom.” They have no clue what those words really mean. War, in the United States and elsewhere, has always implied the suppression of Liberty and freedom. Our wars have commonly been accompanied by the suspension of habeus corpus, freedom of speech, and freedom of the press. In real wars those steps may become necessary because our survival is at stake. The battle against Al-Qaeda is not a war. These enemies do not threaten our survival except in the dreams of the most timorous of the rabbit people, and the surrender of our liberties that their phoney “war” implies really represents an abject surrender to our enemies in the name of perserving our security at all costs. The proper slogan for the rabbit people is not “Liberty or Death!” It is “Security for Me, and Damn the Rest!”

Cowards that they are at heart, they are quite willing to surrender every freedom our forefathers fought for if only the government will keep them safe. By destroying our Liberties, they concede victory to our enemies, lowering us to their level, all in the name of a false security. When a couple of former Gitmo prisoners turn up in the Al-Qaeda organization in Yemen, all we hear from them is loud shouts of “We told you so!” Forgotten are the words of William Blackstone, “Better that ten guilty persons escape than that one innocent suffer.” One commonly finds these heroes thumping their Bibles, but forgotten, too, is the story of Sodom and Gomorrah, in which God tells Abraham that He would have spared these entire cities for the sake of ten righteous men. Forgotten are the very reasons it even occurred to our Founding Fathers to object to arrest without due process of law.

It never occurs to the rabbit people as they chant their “war” mantra that any of the prisoners held for years now at Gitmo could actually be innocent. For them, they are all so many convicted terrorists. Tell me, what justifies them in coming to this conclusion? Have the prisoners at Gitmo ever been given the right to a fair and speedy trial? Have they even been allowed to stand before military tribunals? How is it that we have arrived at this absolute certainty that they are all terrorists? The process was certainly unheard of at the founding of our Republic. By what new miracle of jurisprudence have the rabbit people concluded that we “know” all the prisoners at Gitmo are guilty, and fuzzy-headed thinking about fair trials be damned?

The rabbit people always assume that they will be the ones sitting in the seat of judgment. It never occurs to them that the precedents they are setting now may well come back to haunt them, and the rest of us as well. Let the rabbit people recall some familiar but wise words: “What goes around comes around.”

Medical Malpractice Lawsuits and Health Care Costs

We are now in the midst of a great national debate over the nationalization of health care. It would be more useful to nationalize the legal profession, for we are fast becoming what the great political theorist Milovan Djilas called a “Land without Justice.” Like the proverbial frog in boiling water, we tolerate the gross injustices we must endure on a daily basis because they have become normal. The legal system didn’t collapse overnight. It became rotten in small increments. We just got used to it. It now amounts to an officially sanctioned, pervasive, and massive system of bribery under which economic existence requires payoffs to legions of lawyers whose “services” to the country are more or less on a par with those of common burglars.

Consider what happens when someone sues their neighbor in this country. Regardless of whether the defendant is innocent or guilty, it will be necessary for him to bear potentially crippling legal fees, not to mention a psychological burden of insecurity that will last for years as the litigation proceeds through the courts. Can anyone explain to me how it is “just” that thousands upon thousands of innocent people must suffer such punishment in our country every year? If we are to avoid this punishment, we are required to pay substantial bribes to the lawyers in the form of high premiums for health, car, and legal insurance. The situation has become intolerable. If we must have big government, let us start by nationalizing the legal industry.

Let us consider how this works out in the case of health care costs. The lawyers tell us that the cost of medical malpractice insurance is insignificant, amounting to less than 2% of total health care costs. According to a recent Congressional Budget Office (CBO) report they often cite, that is quite true. It is also irrelevant. One can see that by looking at a pie chart (hattip Health Guide USA, see below) of our total health care costs. Those costs include a great number of things, such as research, structures and equipment, home health care, hospital care, etc., which figure either relatively little or not at all in the overall medical litigation picture. In fact, such litigation is concentrated overwhelmingly in the “physicians and clinical services” portion of the pie chart, and to only a fraction of that. It is cold comfort to the many physicians who must pay exorbitant malpractice insurance premiums, amounting to many tens, and, in some cases, hundreds of thousands of dollars per year, that those premiums only amount to 2% of the nation’s total health care costs of about $2.5 trillion. For them, the burden is a lot more than 2% of their income. The argument is about as logical as a burglar attempting to justify his acts because, after all, the total take of thieves in the U.S. is less than 2% of the total military budget.

In return for this extortion, the lawyers explain to us that we all profit by improved health care. In fact, according to the CBO report they so often cite themselves,

Defenders of current tort law sometimes argue that restrictions on malpractice liability could undermine the deterrent effect of such liability and thus lead to higher rates of medical injuries. However, it is not obvious that the current tort system provides effective incentives to control such injuries. One reason for doubt is that health care providers are generally not exposed to the financial cost of their own malpractice risk because they carry liability insurance, and the premiums for that insurance do not reflect the records or practice styles of individual providers but more-general factors such as location and medical specialty. Second, evidence suggests that very few medical injuries ever become the subject of a tort claim. The 1984 New York study estimated that 27,179 cases of medical negligence occurred in hospitals throughout the state that year, but only 415—or 1.5 percent—led to claims. In short, the evidence available to date does not make a strong case that restricting malpractice liability would have a significant effect, either positive or negative, on economic efficiency.

In a word, the only ones who gain anything from the suffering and expense that health litigation entails are the lawyers themselves. They gain big time, and that’s the only reason our organized system of bribery continues. This is true not only of health care, but of accident litigation and any other activity in which lawyers can exploit human greed to inflict their “services” on the rest of us.

Suppose, however, that the effects of all this costly litigation are really all the lawyers tell us they are. Suppose it really does weed out bad doctors. Suppose it really does improve health care. Suppose it really does compensate the victims of malpractice, and only them, for the injury they have suffered. Would that, somehow, justify punishing the innocent with the guilty, forcing them to bear high legal fees, years of anxiety, and days wasted in litigation? Was that the dream of our founding fathers? “Let 100 innocent suffer as long as we can catch one who is really guilty?” That was the ethic of the Gulag. It seems to me that only those who have been profoundly corrupted by greed can really believe such a thing. And yet that is the kind of system we have, not only in medical malpractice, but in all other tort litigation. Odd, isn’t it, that all the worthy “experts” in ethics our universities have been pumping out never seem to object to this travesty of justice, or at least not loudly enough to make themselves heard?

The private practice of law in the United States has been corrupted beyond repair. The government has nationalized large sectors of the financial and automobile industries, and is in the process of nationalizing health care. While they’re at it, they should do something really useful, and nationalize the legal profession.

health-costs2