Newsgroups: bit.listserv.politics
Date:         Thu, 31 Dec 1992 11:18:14 EST
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      Re: Hateful Penalties, some more

>From:         Andy Freeman <andy@SAIL.STANFORD.EDU>

>>Actually, I don't see what difference it makes whether *I* like
>>the hate speech enhancements or not. At least it doesn't matter
>>to a real argument.
>
>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.

>>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.

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.

>>That's because, like Rasputin, the United States is blessed with an
>>unusually strong constitution. (That's only by-the-way, but so is this
>>whole explanation.)
>
>The verb tense is wrong.  Rasputin, like the US, WAS blessed with an
>unusually strong constitution; things have changed.

Touche.

>>I'm not sure how you mean this.
>>It doesn't matter whether they are "worrying" about the
>>death costs and benefits. It matters whether they are
>>worrying about the costs and benefits to themselves.
>
>But, "calculation" doesn't imply that they're considering death as a
>possibility.  A secret law can't have much deterrence effect, and the
>legal consequences of an unconsidered possibility work basically the
>same way.

Hm. I'd have to think about this.
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. I think criminally negligent homicide requires
something like "wanton disregard for human life," which couldn't
be shown at all if the possibility of death never occurred to
the criminal.
Maybe I'm wrong about this. Maybe the question is more like,
"SHOULD the criminal have recognized the possibility of death?"

>>Second, I don't see why it matters whether the criminal is
>>an "ordinary person" or a "person with a history of
>>criminal activity." What matters, it seems to me, is whether
>>the criminal pre-meditated the crime, whether he thought
>>about its consequences and esp. its consequences for HIM.
>
>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.

Jamie
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