Organization: Computer Science Department,  Stanford University.
Newsgroups: bit.listserv.politics
Date:         Thu, 31 Dec 1992 14:29:28 -0800
From:         Andy Freeman <andy@SAIL.STANFORD.EDU>
Subject:      Re: Hateful Penalties, some more

>>I was asking for "good" reasons.  "Bad" reasons aren't all that
>>interesting, even if they are offered by Jamie to keep things moving.
>>We can argue about how much "good" reasons that weren't a factor
>>matter.
>
>I don't see how this was responsive.
>
>Well, unless we are taking as a premise that only reasons adduced
>and defended by Jamie are good reasons. I am willing to accept
>that, but only arguendo.

Jamie has proposed a number of bad reasons; he presented plausible
reasons and then showed some serious problems with them.  That's
interesting, but it doesn't get us any closer to our "let's see good
reasons" goal.  (Some bad reasons are more interesting than others,
but ....)

>>>But many, most, policies that violate individual rights
>>>*are* unconstitutional.
>>
>>That seems either circular or wrong (since the 9th and 10th are dead).
>>If we go with the "the only rights protected are those explicitly
>>listed or found in some penumbra" theory that is currently popular,
>>there are plenty of rights that can be violated without running into
>>constitutional problems.
>
>It may be that Andy and I have different views about which rights
>people have. I believe that most rights that we have really ARE
>protected by the Constitution. Apparently Andy doesn't.

While the rights we have may be those that are protected by the
Constitution, that doesn't mean that there aren't other rights.  For
example, what about rights we don't have and which aren't protected by
the Constitution.  Do we actually have all of the rights supposedly
protected by the Constitution?  Are the constitutionally protected
rights really the only ones we have now?  Has Congress/President
really gotten around to violating every individual right that isn't
protected by the Constitution?

There are four categories of rights under discussion.  The two lines
are "does the constitution protect it" and "has congress/president
gotten around to trying to violate it yet".  I'd be really surprised
if any of the categories was empty.

>What I'm saying isn't at all circular. I think we might have had
>an inferior Constitution, in which case very few of our rights
>would be constitutionally protected.

I agree that we could have had a worse Constitution.  We could even
have had a better one that is ignored more than the one we have.
Clinton supporters best argument notwithstanding, things can almost
always get worse.

-andy
>My sense is that if someone wasn't even aware of the possibility
>of death (of the victim, of course), then it isn't criminally
>negligent homicide.

My sense is that it involves not a little "should have been aware"
because we still don't have mindreaders.

>>History certainly matters for some goals, namely "prevent harm"
>>because we know that trends tend to continue.  (If someone repeatedly
>>bashes others "in the heat of passion", we've got to do something
>>about THEIR passion because other people manage to be passionate
>>without bashing anyone.)
>
>Perhaps, but what we do can't very rationally be to plan to deter.
>It might be to plan to PREVENT further passionate attacks by the
>same person, but I was talking about deterrence.

While there may well be people who always calculate and consider every
possibility others who never calculate, I think that most people fall
somewhere in the middle.

If we tell people "it's okay, you just got mad", we'll have a lot of
people who "just got mad".

In any event, "prevent harm" is not "deter".  I don't see the
mechanism as all that important.

-andy
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