The Classical Foundation

The Blindfold, the Scales, the Sword

Justice is first of all equality before the law and proportionality of punishments to crimes.

The traditional metaphor for equality before the law is the blindfold on Lady Justice. Not one law for black, another for white, not one for rich, another for poor, not one for women another for men. This could be called the universality principle.

The classic symbol of proportionality is the scales held by Lady Justice in her left hand. Guilt or innocence should be determined not by the whim of the judge but by the weight of the evidence. A minor crime should not be a capital offense. A capital crime should not get a slap on the wrist.

A third quality of justice is timeliness – symbolized by the sword in the right hand of Lady Justice.  Justice delayed is justice denied. Justice must be swift and certain. Or it is justice in name only.

A fourth dimension of justice is restraint – captured in the statue by the fact that sword is pointed down. Justice is about coercion.  Coercion is to be minimized. In the words of Cicero “More laws, less justice.”

Questions To Think About and Respond to in Writing Before Proceeding

Did your baseline response cover all these points?  Do you disagree with the prioritization? Would you like to amend your draft to account for the factors mentioned? Or do you want to stick with your original formulation? Why?

Revise your baseline response before proceeding to Part Two. After which prepare a final draft and present it to family and friends and find out what they think.

Modern Variations on the Theme of Justice

The Starting Gate, the Ladder, the Safety Net,
the Hammock, the Pie, and the Leaky Bucket

Social Justice: the safety net:  Extreme poverty is incompatible with justice. But how much stuff is enough? Who decides? How? Wants have a way of becoming needs. And as countless philosophers across all cultures have noted: the less you want, the more you have. How much should environmental considerations factor into calculations of sufficiency?

Social Justice: the starting gate and the ladder: Every child born should be able to reach her full potential for joy and productivity through diligence and the pursuit of excellence. Economic hardship must not shackle any child at the starting gate of life or weigh her down in her climb up the ladder.

Economic trade-offs: the hammock , the pie, the fish, the leaky bucket: The safety net must not be too comfortable. The risk of dependency is real. This truth is embodied in the saying that it is better to teach someone to fish than to give the person a fish and in the metaphor of the pie – better grow to grow the pie for the benefit of all than to split it up more equally. Or in the “leaky bucket” – money taken from the rich to the poor is always taken in a leaky bucket – not only does much of it go to third parties but it reduces the work incentives for both rich and poor.

What are the lessons of the history of Russia, China, Cuba, Venezuela in this regard?

Reciprocity – no rights without duties, no duties without rights. No one has the right to a comfortable life without the duty of working your hardest to make the most of your gifts in the service of others. Is it fair that x percent of the public pays no net taxes? Does anyone have a right to a child paid for by the labor of another? 

Decisional authority: who decides how to balance the trade-offs?

Should one person/one vote be the over-riding principle? Is the risk of majority tyranny real? Should power be separated and checked?

Should the rule be a simple majority or a super majority at the legislative level? How much power should the judiciary have?  Should judges be elected or appointed? Should it be unanimity at the judicial level?

Statistical disparities: are disparities in wealth, income, or representation a measure of injustice or of other factors? Who decides? How? Is it unfair that Jews have won such a disproportionate share of Nobel Prizes? Or that 90% of prisoners are male?

Everyone has a right to an opinion, but all opinions are not created equal.

Some are based on extensive research and analysis and others are not. Some are driven entirely by partisan bias. Others are not. Some opinions on the lessons of history are informed by an understanding of the basic laws of economics. Others are not. Some are based on a long term synoptic view of the history of mankind. Others are based on a study of a much more limited period and geography.

Today, the big four lessons of American history imbibed by American high school and college students on the coasts and in the upper Midwest are: America is racist, America is sexist, America is a class society, America is an imperialist power. These four truths are contrasted with the four myths: that America has gotten beyond race, that women are now equals to men, that the American dream is alive, and that American foreign policy is benign.

From a long term historical perspective this approach misses the really big points.

First, America is most historically distinctive not in its racism but in its ethnic heterogeneity and its relatively early abolition of slavery (relative to say the Islamic world). Second,  what is distinctive about America in terms of women is not gender discrimination but the early emancipation of women relative to all other parts of the world – whether Europe, Asia, Africa, or Latin America. Third, what is historically distinctive about America is not the existence of economic classes but the absence of a monarchy or an aristocracy (historical relics that are very much alive across the world today). Fourth, what is distinctive about American foreign policy is not its abuse of power but the fact that America saved the world from National Socialism, Stalinism, and Maoist Communism and has alleviated countless humanitarian disasters.

Looking beyond America, the question is: is the big lesson that capitalism doesn’t work or that it does? Was Marx right or wrong?

To me the answer is simple. It was one thing to be Marxist when Marx was a Marxist – in 1848 when the life of expectancy of a child born in an industrial town was half that of the child born in the country. It’s another thing to be a Marxist after 1939 (after the news of Stalin’s purges and the Nazi-Soviet Pact). Still another to be a Marxist in 1975 after Mao’s massacres. Still another to be one in 2016 after Castro, Pol Pot, Mugabe, Chavez. After Deng Xiao Ping and the Chinese miracle.

Some opinions are immune to facts. Others are not. Marx would not be a Marxist today.

Some things you can’t make up. One day, as a Berkman Fellow at Harvard Law School, I had the perverse urge to test knowledge of the Preamble on the part of Harvard law school students. I was appalled at how few were able to recite it or summarize its contents. Then I decided to test Harvard Law School professors.

A similar result. Then most astoundingly I met separately with three professors of US Constitutional Law and found that not one of them passed the test either. Only one of the three was embarrassed. The other two had an excuse: their job was to teach students to write appellate briefs and the Preamble was never cited there.

Another canary in the coal mine of academia. So what is the Preamble and why should anyone care?

The Constitution has three basic parts: the Preamble, the Articles, and the Amendments. The Preamble is important because it lays out the reasons for having a government. The best way to teach the Preamble is to, on the first day of class, ask the students to write down why you think we have a government.

You should do this right now before proceeding. 

Once you have completed this assignment compare your list with the Founders’ list and note any discrepancies.  What is missing from the Founders’ enumeration from an 18^th century perspective? from a 21^st century perspective?

After the Preamble come the Articles. Do your best to summarize each before you go to the text itself and then compare what they actually do to what you had thought.

Then write down what you think the First Amendment says before actually going to the text to see what it actually says. The precise wording matters. So does the order in which the rights are listed. Does the First Amendmennt apply to all levels of government or just the Federal government? Does it dictate a strict wall of separation of church and state at all levels?

After the First Amendment, what is the most important Amendment and why?

What is the case for the 14^th Amendment? What is the incorporation doctrine?

These are questions eighth graders should be able to answer. If you can’t please consult the text of the Constitution. If you need a helping hand, please consult the best annotated version I know of: Linda Monk’s The Words We Live By. Civic literacy requires work. No pain, no gain.

Some things you can’t make up. One day, as a Berkman Fellow at Harvard Law School, I had the perverse urge to test knowledge of the Preamble on the part of Harvard law school students. I was appalled at how few were able to recite it or summarize its contents. Then I decided to test Harvard Law School professors.

A similar result. Then most astoundingly I met separately with three professors of US Constitutional Law and found that not one of them passed the test either. Only one of the three was embarrassed. The other two had an excuse: their job was to teach students to write appellate briefs and the Preamble was never cited there.

Another canary in the coal mine of academia. So what is the Preamble and why should anyone care?

The Constitution has three basic parts: the Preamble, the Articles, and the Amendments. The Preamble is important because it lays out the reasons for having a government. The best way to teach the Preamble is to, on the first day of class, ask the students to write down why you think we have a government.

You should do this right now before proceeding. 

Once you have completed this assignment compare your list with the Founders’ list and note any discrepancies.  What is missing from the Founders’ enumeration from an 18^th century perspective? from a 21^st century perspective?

After the Preamble come the Articles. Do your best to summarize each before you go to the text itself and then compare what they actually do to what you had thought.

Then write down what you think the First Amendment says before actually going to the text to see what it actually says. The precise wording matters. So does the order in which the rights are listed. Does the First Amendmennt apply to all levels of government or just the Federal government? Does it dictate a strict wall of separation of church and state at all levels?

After the First Amendment, what is the most important Amendment and why?

What is the case for the 14^th Amendment? What is the incorporation doctrine?

These are questions eighth graders should be able to answer. If you can’t please consult the text of the Constitution. If you need a helping hand, please consult the best annotated version I know of: Linda Monk’s The Words We Live By. Civic literacy requires work. No pain, no gain.

My dream for America is that every child born reaches her full potential for joy and productivity.

Four principal obstacles lie in the path of the realization of that dream: the zip code safety gap, the schools gap, the family structure gap, and the values gap.

The zip code safety gap: the first job of government is to provide physical security for its citizens. A state that fails to do so is a failed state. In most zip codes in America children can walk to school and to the playground without fear of physical harm. In others, no.

The schools gap: 120 years after Plessy v Ferguson schools are very separate and very unequal. Some public schools have high quality academic, artistic, and athletic programs, others don’t. Some have high standards of discipline. Others don’t.

Some have high quality teachers, others don’t. To change this requires action on many fronts. Two steps to be taken on the legal front are overturning San Antonio v Rodriguez (ie. the funding of schools from local property taxes) and affirming Vergara v California (that tenure is incompatible with the equal protection clause.

The family structure gap: complex and unstable families are not conducive to children reaching their full potential. The latest social science research (Chetty, Edin, Brookings-AEI) confirms the critical importance of family structure to social mobility. The elimination of marriage penalties to welfare eligibility and equal access to long-acting reversible contraceptives are two specific steps to be taken.

The values gap: high standards and high expectations matter. The relative academic success of Asian and Jewish children reflects the relatively high importance placed on education by their cultural traditions. Higher expectations drive higher performance. The incarnation of this principle is Jaime Escalante, the Bolivian-American calculus teacher immortalized in the film “Stand and Deliver.”