In an episode of The Simpsons entitled “Two Cars in Every Garage, Three Eyes on Every Fish,” the Simpson family ruins Monty Burns’s shot at becoming governor. As Mr. Burns leaves the Simpson home he turns to his majordomo and says, “Ironic, isn’t it Smithers? This anonymous clan of slack-jawed troglodytes has cost me the election. And yet, if I were to have them killed, I would be the one to go to jail! That’s democracy for you.”
Smithers replies, “You are noble and poetic in defeat, sir.”
Smithers may be right about Burns’s nobility, but Mr. Burns is wrong about democracy. That’s not democracy for you. There’s nothing specific to democracy which says it’s against the law to murder people. Murder has been a no-no for a lot longer than democracy’s been around. Murder, reasonably defined, has been outlawed in pretty much every society around the world. This doesn’t mean that some societies haven’t winked at the law or had outrageous loopholes or hypocritical exceptions. But, as we continue to wait for O. J. Simpson (no relation to Homer) to track down the real killers we should contemplate that democracy is not immune to such glitches.
Indeed, there’s no reason to think democracy can’t be worse about banning murder than, say, theocracy or monarchy. Again, as O. J. Simpson demonstrated, we have juries that can absolve anybody of murder. Sometimes this is because the law can fail to capture the larger questions of justice involved. Or, in the case of O. J., a jury can simply get caught up in race-baiting and media hysteria.
Even such sensible folks as Yale law professor Stephen Carter believe that jurors can be instructed to disregard the law. Forcing them to decide a defendant’s fate based solely upon what the law says, he writes, is “simply undemocratic” and takes for granted “the absolute justice of the will of the secular sovereign.”
I don’t know that Carter is wrong — the jury system is a failsafe against tyrannical laws — but whether you agree with him or not, such arguments simply underscore the idea that democracy can absolve murder, and many other crimes, in a way that many other forms of government cannot.
There’s another way democracy can absolve murder. It can lower the price the murderer pays. I got to thinking about this while reading an essay by Peter Beinart, editor of The New Republic. In the latest TNR Beinart makes the case that some Democratic presidential contender should make capital punishment a breakout issue in the primaries. Beinart is opposed to the death penalty on principle, but his argument is purely political. Which is fine — you have to make political arguments if you’re going to win on issues of principle.
But what bothers me about Beinart’s argument is the assumed virtue in America’s changing attitudes. He rightly notes that due to declining crime rates, Americans are getting softer on crime. They support gun control more, tough prison sentences less, and are inclined to rethink capital punishment. Beinart clearly thinks this is an example of the unfolding enlightenment of the American people. I think it is the growing moral amnesia of the American people.
I don’t particularly care if the death penalty is a deterrent. I believe it is and would be happy to have that argument another time. But as a moral issue deterrence is largely irrelevant. As the recently departed Ernest van den Haag wrote not too long ago, “Deterring the crimes, not yet committed, of others does not morally justify execution of any convict (except to utilitarians, who think usefulness is a moral justification).” Van den Haag noted, “If deserved, capital punishment should be imposed. If not, it should not be. Deterrence, however useful, cannot morally justify any punishment.”
I agree with that. Unfortunately many Americans, especially elite journalists and academics, don’t. Indeed, Beinart and many, many others assume that if crime falls to a manageable or acceptable level, most Americans will see the death penalty as a gratuitous institution, as if it’s an extravagant tool we should keep behind a glass which says “break only in event of an emergency.”
The problem is this is morally offensive. The calculation for these folks goes something like this: “Crime is too high. I could get hurt or killed, or maybe someone from my family could. We need the death penalty.” And, when crime goes down the equation changes, “Crime is very low. It’s very unlikely me or my family will be victims of crime. Why bother with the death penalty?”
So, if the murder rate plummets, the “price” of murder gets cheaper. Look at this from the victim’s perspective. If you kill my son (I don’t have one yet, this is a hypothetical) when crime is very high, society will empathize, thinking “I could be next.” But, if you kill my son when crime is very low, people will say “is it really worth executing the murderer?”
Now, is my son’s life any less valuable just because police are being more efficient in deterring the murder of other people’s children? I don’t think so. In fact, I’m at a loss to understand why we wouldn’t execute a murderer if he were guilty of the only homicide in a given year.
This illustrates a serious problem with democracy. And you don’t have to be pro-death penalty to see it. If the death penalty is wrong, it’s wrongness should be just as ageless as its rightness if it’s right. The mere fact that an orthodontist in Cleveland feels more anxious about crime shouldn’t make the state more “right” to take a life. And, if you are in favor of the death penalty, the mere fact that the same orthodontist feels comfortable leaving his door unlocked shouldn’t mean that a murderer should pay less of a price for killing a child.
This all stems from the arrogance of living in the moment. Yes, there is something wonderful about the American character which says all problems can be looked at anew. But there’s a downside to this tendency too. It’s one thing to look at old problems from a fresh perspective. It’s another to assume that your problems are unique and without precedent. That’s how teenagers think, which is why they say “you don’t understand” to all sorts of things parents understand perfectly well because they were teenagers once too.
DEMOCRACY FOR THE DEAD
Democracy without tradition is like a man without memory. Just as the man will continually scald himself because he cannot remember what is hot, societies will get burned by losing their confidence in eternal truths. Tradition is actually more like instinct than memory, because we don’t always know why we have our instincts but we know to trust them. Lessons get passed down from one generation to another even if we don’t remember exactly how we learned them. We don’t necessarily remember all of the reasons it makes sense to execute murderers but we know in our bones there are a lots of good reasons. A society that turns its back on tradition is more condemned to repeat senseless mistakes than a society that turns its back on history. The study of history can lead people to draw stupid conclusions. Tradition, however, invariably has more than a little merit to it because it is based upon lessons successfully learned.
Readers by now know that I am fond of Chesterton’s definition of tradition as “the democracy of the dead.” He went on to say, “Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about.” Well, when it comes to crime and punishment, tradition is democracy for the murdered. It recognizes and respects the sacrifices of the victims of crime and records the lessons rightly learned from those sacrifices.
Since the question of capital punishment’s deterrence is so immune to persuasion and irrelevant to its moral validity, the better illustration of the perils of forgetfulness are prison sentences. I don’t have the statistics handy, but I take Beinart at his word that public support for tough mandatory sentences is declining because crime is less of an issue. Now, whatever the New York Times says notwithstanding, prison sentences do have a direct correlation with crime rates. People in prison tend not to rob liquor stores. But if the see-saw trend Beinart describes is real, and I think it is, that means we will start going easy on criminals again. Which means that criminals — being the sorts of people they are — will do more bad things. This in turn will create a counter-reaction. And so on.
In a society more bound by tradition and less enamored with the whims of a democratically empowered electorate, we would leave well enough alone. We’d keep the death penalty in place. We’d keep criminals locked up. We’d refrain from putting every issue on the ballot simply because we can. In short, we’d refuse to submit to the small and arrogant oligarchy of those who merely happen to be walking about.
1. My lovely bride is scheduled to be on Hannity and Colmes tonight on Fox News. She was supposed to be on Brit Hume last night but that got postponed. So you never know until you see her. Oh, and if you missed it, here’s George Will’s column on her book.
2. Then again if you’d been reading The Corner, you’d know that. Which brings me to my second point. You should be reading The Corner.
3. Lastly, my wife and I are officially buying a house. We are very excited and so is Cosmo. But we are also in a bit of a crisis. We need to rent/sublease our current D.C. apartment for six months (it’s possible though not guaranteed that it could be extended). It’s an amazing pad, but not cheap. If any folks out there know any World Bank or lawyer types or anyone else who might be interested in a short-term rental, please drop me a line with “Rental” in the subject header to [email protected] But please, please, only serious inquiries.