One of the most important points of this column over the years — other than my belly, my dog, fair Jessica, my need for a raise, the fact that I have the upper-body strength of an eight-year-old girl and the lung capacity of a Polish whoopee cushion — is my aversion to clichéd thinking.
In debates with readers, colleagues, college audiences, et al. the monitor on my internal respect-o-meter flat-lines every time I hear someone say, for instance, “better ten guilty men go free than one innocent man be punished.”
In order to explain what I’m talking about let me repeat my objection to this phrase.
It’s not so much that this isn’t true. Maybe it is. Maybe it is better that ten confirmed rapists and murderers be set loose on the streets to murder and rape again rather than lock up one innocent guy along with the ten menaces to society. Maybe we will all accept it as the price of liberty when your mother is subsequently raped or your son is shot because, hey, better the rapists and murderers go free than the unlucky go to jail.
But, it seems to me, there’s an argument to be had here. Isn’t there? Let me provide a very quick-guided tour of the obvious. According to the best social scientists and criminologists, career criminals commit a great many crimes over their lifetimes. Indeed, that’s why we call them “career criminals” — they’ve made a career of it. Career accountants have, in all likelihood, prepared many tax returns and we can expect them to prepare many more. So it is with career criminals who’ve committed many crimes: We can expect them to commit many more. This is why I call prison “the bad people place.”
So, anyway, if you say “better ten guilty men go free than one innocent be punished” — or some variation of that — all I expect from you is an argument. Why is it better?
Don’t get me wrong, I understand the principle: We should err on the side of protecting the innocent rather than punishing the guilty. Fair enough. But quite often — too often — when people throw out this old adage, they seem to think the principle settles the argument when in fact it only sets the stage for it.
For instance, how come it’s better that ten guilty men go free? When we translate the principle to reality, we’ve got to pick a threshold number. So why not say it’s better that 50 guilty men go free? Or, say, two guilty men? Is 10 a special number? Or is it just easy to say? Or haven’t you thought about it all? Most often, people haven’t thought about it all.
So let me ask you, why not set free two million guilty men? After all, we all know that some number of innocent people are in prison right now. Therefore, if we maximize the principle of erring on the side of the innocent we should let everyone out of jail because we know someone doesn’t belong there.
The point is we live in a society where we have to make choices about how much error we will permit in any given system, because no system will ever be perfect. It’s fine to say that we should err on the side of the innocent. The real work comes when we have to decide how we’re going to do that and still keep murderers and rapists in prison.
CLICHÉ APPEAL
I know this is an old peeve of mine, and I apologize for repeating myself. But you have no idea how many people write me to explain why I am a heartless ogre and fool, using only clichés as their proof. (Speaking of clichés, are cardiacally endowed ogres less mean?) They’ll say, “unless you’ve walked in a man’s shoes” or “unless you were there” then “you have no right to judge.”
Without recycling another argument, let me just say, this is a nice principle too. Experience is useful, sure. But “unless you were there, you have no right to judge” is still a pretty dumb thing to say 90 percent of the time. I’ve been neither a slave nor a slave owner; am I therefore deprived of ever offering an opinion on slavery? Can I never criticize a professional football player, president of the United States, policeman, or gay prostitute because I’ve never been any of those things, either? Should we get rid of juries entirely since we usually don’t allow murderers and thieves to decide the fate of murderers and thieves? Anyway, you get my point.
I think some people assume clichés are akin to mathematical proofs; some Pythagoras did all of the heavy lifting ages ago, proving that this or that cliché is true and therefore nobody needs to re-check his math. So when someone says “who are we to judge?” everyone in the room nods as if it’s in fact true nobody can judge anybody just as everybody nods when your math teacher plugs in the Pythagorean theorem to solve a problem up at the black board.
But let me be clear. My problem isn’t with clichés themselves. As a conservative, I have to have more than a little respect for the pearls of wisdom contained in phrases like “why buy the cow if you can get the milk for free?” There are millennia’s worth of Hayekian trial and error built into the trite phrases your mother or grandmother uses. No, my problem is with people who accept clichés without reflecting on what exactly they mean. In a sense, clichés become an ideology all of their own. And since we accept cute phrases like “the grass is always greener on the other side of the fence” uncritically, clichés can be far more pernicious than ideology.
FREEDOM DOESN’T WORK THAT WAY
Let me give you the example that made me want to write this column in the first place. Because I’m skeptical about slippery-slope arguments, because I’ve argued that America is largely immune to becoming a totalitarian state, and because I don’t particularly care if Jose Padilla, John Walker Lindh, or Richard Reid ever get a lawyer, a lot of people keep telling me that when one person loses his freedom we’re all a little less free.
You wouldn’t believe how many famous people have offered or repeated this observation. Gandhi, Martin Luther King, Eli Wiesel, Captain Jean Luc Picard, as well as countless politicians have said something to the effect of “we are only as free as the least free among us.”
It sounds nice, of course. Unfortunately, it’s also a crock, factually, logically, and morally.
First, facts and logic: Remember how we all agreed at the beginning of this column that there’s undoubtedly an innocent person in prison right now? Well, he’s not free. Are you only as free as him?
Take this principle out of the realm of civil rights for a second. Say you’re on a plane. Some poor shlub gets yanked from his flight because the airline screwed up. The plane takes off and you make it to Chicago, while the other guy is still trying to work things out at the Southwest counter. If we are only as free as the least free among us, some magical force would have kept you from leaving too. This is no less true if the guy who got yanked off the plane was pulled off because he was unfairly profiled. You’re still free to travel. You can make an argument that next time you might be the poor shlub, but that’s a different argument and you’d need to prove it too (more on this in a moment).
Or look at it this way: We’re all taught these days that the original Constitution just preserved the freedoms of rich, land-owning, white men. Well, the same people who say that also nod like those toy birds who dip their beaks in a glass of water every time someone says “We’re only as free as the least free among us.” Well, which is it then? Did the Constitution just protect the rights of those rich white guys or were Tommy Jefferson and Benji Franklin no more free than all those oppressed women, poor people, slaves and Indians?
The notion that we are inextricably bound together in our freedoms is poetic, uplifting, and perhaps even necessary as far as useful fictions go when it comes to public ideals. But it’s not true. Indeed, the people who use this phrase the most invariably invoke it precisely because it is not true. Martin Luther King made the argument that we are only as free as the least free among us because he was trying to persuade people that blacks were not free enough. If what he said was true, he wouldn’t have needed to say it because everyone would have been in the same boat. His audience, obviously, weren’t the black people who needed no convincing of their oppression, but the white folks who were, needless to say, more free than blacks.
This illustrates why the argument that we are only as free as the least free among us is actually deeply cynical and perhaps even immoral. If you want what’s right for somebody else simply because you’re afraid that you’ll be next, then your motivations are selfish. If you think Joe should get a tax refund because you want one too, then the merits of Joe’s case aren’t particularly important to you except insofar as they jibe with your own. If you’re white and you want black people to be free because you want people like yourself to stay free, well then you don’t really care about black freedom except insofar as it insulates white freedom.
The same moral logic powers clichés like “first they came for the Jews” or “we’re only as free as the least free among us.” It is not an appeal to conscience but an appeal to the self-interest of those who fear they might be next.
Indeed, the adage “first they came for the Jews” is often used as part of an argument for the state to never “come” for anybody. I can’t tell you how many fools write me to say that the government cracking down on terrorists is akin to the government cracking down on Jews (or blacks, or gays, etc). In effect, not only does this logic hold that the government is so inept and immoral that it will be forced to “come” for other people once it’s through with the terrorists, it also implies that Jews and terrorists are somehow similar. After all, if cracking down on the Jews first is indistinguishable from cracking down on terrorists, what’s the difference between Jews and terrorists?
Well, that’s offensive. I have every right in the world to be a Jew. I have no right to be a terrorist. To confuse the two colors you stupid. Anyway, none of this means that Martin Luther King or Gandhi were immoral for making these arguments (though they were prudently cynical for making the calculation that most people would only be stirred to action when convinced their private interests might be threatened).
But what drives me nuts, getting back to the Pythagorean thing, are the people who plug these clichés into their arguments with mathematical certitude when these people never spent a moment to question the platitudes they live by. What’s worse, once you start listening for these little algorithms for lazy thinking, you’ll hear them everywhere — on talk shows, on the Senate floor, in your classrooms and offices. And pretty soon, you’ll realize how much this country is ruled by the tyranny of clichés.