Justice

If you would like to see the background on these action items (and we recommend that you do), please see the book The American Ideas: 13 American Originals to Know, Love, and Defend available in hardcover and eBook.

CHAPTER 3: Justice – To ensure the future of this American Idea, we should:

• Make justice a special word, equally meaningful to everyone.  The word “justice” can be wrongly used to support special treatment or unwarranted demands.  It can be defined with fuzzy notions like fairness.  If we really want justice, this American Idea shows us the way.  We have to tie it to principles, truth, and facts rather than opinions, demands, and fictions designed to stir emotion.

A straying culture has insisted that individuals who violate the rights of others be given every possible consideration, that their punishments often have little to do with the violations, that sentences be undersized, that punishment be thought of as rehabilitation, and that the claims of criminals are more important than any restoration of the violated.  Murderers and rapists are provided for by the government, while their victims don’t even receive justice, much less restoration.

A straying culture insists that businesses who are alleged to violate the rights of others be given every possible punishment, that their punitive treatments often have little to do with the violations, that fines be huge, that punishment be thought of as picking deep pockets, and that the claims of those suing them are more important than the stakeholders of the business.  Individuals reap lottery-level windfalls far beyond restoration, the owners or shareholders of the business – including the elderly, disabled, sick, widowed – are extorted, and tort lawyers ride in private jets to the next land grab.

When the culture has stayed close to the Idea, it has insisted that merit and decency win out over entitlement and thievery.  It has upheld the rights of individuals while resisting claims for group rights and preferences.  It has demanded that those who violate the rights of others be punished in a way that closely correlates with the violation.  It has ensured that steps be taken to make the one who was violated whole – but no more.  It doesn’t under-compensate or over-compensate.

When justice can be defined to mean its opposite, we’re a long way down the road to arbitrary government, the tyranny of the majority and interest groups, and injustice.  When any citizen can get an unjust advantage over other citizens for any reason, whatever else we have in America, it isn’t justice.

• Avoid creating a cult of group rights.  Creating new “rights” for everyone – and especially for every group – destroys the meaning and value of rights.  A defined list of unalienable individual rights is mandatory for a free and thriving society.  But we foment cultural and economic disaster when we create rights out of thin air, often about things that should be based more on choices and effort – like “rights” to acquiring a college education, having a well-paying job, receiving unlimited access to health care, having a certain standard of living, or getting rich because of an honest mistake made by someone else.

• There is no natural or constitutional right to an education, college or otherwise.  In fact, by forcing people to stay in high school when they hate it and get absolutely nothing out of it, we waste resources and lives.  Many young people would be much better off learning a trade or craft, or just learning responsibility by showing up for a job.  And their schools would be better off, by not having an uninterested, even cynical, force in their midst.

And colleges?  They’re full of people who are having a great time (often at their parents’ expense) while learning little or nothing to actually help them advance their lives.  For many, college has become a way to extend adolescence into their mid-20s or beyond.  And the value of a college degree itself has plummeted as having one becomes a universal “right” and getting good or passing grades regardless of effort becomes a corollary “right.”  Having a degree used to mean, at the very least, that someone had persisted through difficulties (even if they didn’t learn anything useful).  Now it often doesn’t even mean that.

• Then there’s the “right” to an excellent, well-paying job with great benefits.  Only people who have never actually started or run a business could come up with this as a right.  There are a lot of people who are lazy, irresponsible, untalented, unskilled, unpunctual, disrespectful, ungracious – who don’t deserve to have this kind of a job.  Some are so entrenched in their unproductive lives that they don’t deserve any kind of job.  All that this talk of a “right” does is give these people less incentive to improve themselves and more incentive to feel entitled.

• The “right” to health care?  For many, this means getting to live an unhealthy lifestyle and then exercise their “right” to have their productive fellow citizens pay for their medicinal and surgical fixes.  And ironically, there’s no real evidence to support the notion that access to health care actually improves health or mortality.  An article in The Atlantic stated that “it turns out to be really hard to determine how many people die without insurance… The most recent available study, which also had the largest sample and controlled for the most variables, found no effect at all…we should be pretty cautious about stating that we know how many people die from lack of insurance.  We don’t, and worse, we may never. ”[i]

• Since the 1960s, poverty has been defined by salary level rather than by things like not actually having food, clothing, or shelter.  Having this formula drives the notion that there’s a “right” to a certain standard of living.  And that notion has taken root, as we see when people under the poverty line still expect to have mobile phones, televisions (with cable channels), cars, alcohol, tobacco, and a host of other things that may be nice to have but are certainly not necessary.

We as a nation have spent trillions of dollars since the 1960s on the war on poverty, but the percentage of people in that category never really goes down.  This isn’t because there are actually as many poor people as there were then, or that “poor” means the same thing now as it did then.  It’s in great measure because we’ve conjured up this “right” to a certain standard of living, and that standard keeps getting raised – along with the sense of entitlement that goes along with it.  Poor people need opportunity to live a meaningful life, not government handouts and a “right” to have without doing.

• And while we can be upset about a doctor’s or hospital’s actions that lead to the maiming or death of a human being, a settlement of $100 million overcompensates the victim (wouldn’t they or their family be able to make do with $10 million?) while penalizing everyone who pays for insurance or products or services.  We don’t want people creating new definitions of justice – all the while implanting new forms of injustice.  This is especially so for the tort lawyers, who claim to be for the underdog while they rake in their millions in fees and percentages.  F.A. Hayek said that, “The essence of the liberal position, however, is the denial of all privilege, if privilege is understood in its proper and original meaning of the state granting and protecting rights to some which are not available on equal terms to others.”[ii]

• Don’t leave justice to lawyers alone.  Why should only lawyers be permitted to be judges?  Who came up with that notion?  Well…lawyers, of course.

Like people in any profession, lawyers are trained to think only one certain way.  This is a valuable thing, but it isn’t everything.  They don’t have expertise in most of the topics upon which they’re asked to render an opinion or judgment – or pontificate, or make law.  They can disqualify expert witnesses who know a lot more about the topic than they – the ones controlling the process – do.

Law is too important to be left to lawyers alone.  We should have people with specific expertise (for example, in areas of finance, mergers and acquisitions, family life, medicine, etc.) who are then trained in the law that applies to their area of expertise.  Lawyers can be available to advise on fine points of the law in question.

Lawyers already have a near-monopoly on government – a huge percentage of Senators and Representatives, 4 of our last 8 presidents, and all of our judges at all levels.  But this needs to change.  Justice can’t survive if left to aristocratic legal technicians plus… nobody.

• Create a restitution-based criminal justice system.  Why put people in prisons that greatly penalize taxpayers, when those taxpayers had no involvement in the crime?

We should put criminals to work, first to make restitution to their victims (or their families or businesses) and then to pay for themselves (they’re very expensive to maintain).  They should also work to reimburse the government for its costs incurred in dealing with their bad behavior – someone has to pay for it, so why not the ones who are responsible for it?

They should pay with their years and effort.  The amount of their “earnings” spent on themselves should be minimized so that the amount spent on restitution, maintenance and reimbursement can be maximized.  Much of the work can be done in partnership with private organizations, with the government overseeing the transaction and ensuring that prisoners are treated humanely.

This is true justice for all:

• the victims, who have the tragedy softened, at least to some extent
• the criminals, who have their focus changed from take to give, and get the grand opportunity to change that only regret and restitution can provide
• and taxpayers, who aren’t penalized for being good citizens who don’t break the law

Would this lead to a change in the way prisons are structured and operated?  Of course.  Could private enterprise and the economy benefit from turning these useless eaters into productive, recovering citizens?  Yes.  Could we get around the need for budget-strapped government to release prisoners early, by instead having part of their earnings pay for the prison?  Absolutely.  Would this allow us to see thousands of checks – perhaps some with letters of apology – sent from prisons to victims?  Wonderfully, yes.

And might we see perhaps many resurrected lives?  Surely.  Because if we want rehabilitation, we’ve got to have restitution.

• Simplify the law and then magnify what is left.  There are simply too many laws.  “There are…4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent…federal criminal law is so comprehensive and vague that all Americans violate it every day.”[iii]

In times of real justice, laws are few and clearly understood, most violators are caught, and sentencing is carried out quickly.  Great attention is paid to justice and equal treatment before the law.  In times where real justice recedes, laws are multiplied by the hundreds and thousands.

While Americans have generally had great respect for the law, they’ve had great disrespect for the making of many laws.  They sense, correctly, that laws are necessary, but also that their multiplication is a sworn enemy of freedom (and too often, of justice).  We can be in violation of laws whose existence is to us an unknown, even if we’re very responsible.

A big part of the problem is that we mistakenly refer to our elected representatives as “lawmakers.”  Their job is being a lawmaker, as though making more and more laws is their primary purpose?  And this is a good thing?  We need to change the language and lose this lawmaker business.  Shouldn’t their main concern be protecting our unalienable rights?  Shouldn’t they be about the business of guarding freedom, rather than boxing it in with more laws?

We need law un-makers.  We need to describe their jobs in such a way that they know they’d better eliminate at least as many laws as they create.  We desperately need a return to the concept of “that government is best which governs least,”[iv] along with a practical focus on enforcing those few laws consistently and thoroughly.

Simplification also means having a uniform justice code across the land.  It’s completely unjust and irrational that people who have committed the same crime in essentially the same circumstances can variously be released, put on probation, receive prison sentences from a few years to a lifetime, or even be executed.  We’re told that we have to leave judges with a lot of latitude, but these are people just like us, no wiser than us – and not very likely to improve on a uniform code with all of their latitude.

This uniform code has to be related to actual acts of evil, not unrelated factors like age or circumstance.  For instance, we have an arbitrary rule that people under 18 aren’t adults and can’t be tried as adults.  The only possible explanation anyone can offer for this is that…well, that people under 18 can’t be evil or do evil.  But the only way to say that is to be completely ignorant of actual life and real people, to not understand how absolutely cold-blooded a 17-year-old can be.  There is no magical, clear-cut line that separates child from adult.  Pretty is as pretty does.  And where do people think evil 18-year-olds come from?  Innocent at 17 years, 364 days, suddenly evil at 18?

Justice has to be consistent or it isn’t justice.  Once the law is simplified and consistently applied, it can finally be magnified – and will finally be respected.

• Focus the justice system on truth first and last, and insist that no truth ever be omitted or ignored.  When a criminal is set free due to a technicality, truth is imagined away while the criminal’s right to commit crime without punishment is willed into ugly existence.

We can punish the violator of a criminal’s rights without pretending that the truth they discovered doesn’t exist.  The bottom line of any true justice system, the foundation on which it has to rest, is that no truth should ever be withheld from the process.  To claim that we can have justice while excluding truth is a farce.  If we’re going to make just decisions, we have to know the truth – the whole truth.

• Make perjurers receive the punishment their lies would cause another person.  Because of the vital need for truth, we’ve got to make perjury – also known as willfully lying under oath – the dreadful thing that it is.  We’ve got to make the punishment severe and appropriate, to ensure that we can get at the truth.

The best way to do this, the best way to minimize lies told under oath, is to require perjurers to receive the punishment which their lying would inflict on their victim.  You lie about someone stealing?  You get their 5-year sentence.  You lie about their drug-dealing?  Their 10 years belongs to you.  You swear falsely that they committed murder, you get their life sentence…or worse.  If someone lies to have someone killed, how is that different from putting a gun to their head?

• Convert the adversarial trial system to a truth-finding process.  We have to rethink our adversarial trial system.  This system is designed to produce a good fight, a winner and a loser, wealth for the attorneys on both sides, and decisions made by jurors who are kept ignorant of much of the truth and all of the background.  It produces all of these things – but not necessarily truth or justice.

Judges too often consider the greatest sin as having their decisions overturned.  This isn’t even a sin.  The greatest sin is turning the guilty free and punishing the victims instead.

The early part of a trial is called “discovery,” where discovered truth is shared by the two sides.  But that ought to be the whole of a trial.  It all comes out now, or the burier of truth pays.  Real discovery – let’s call it something else, like “truth-finding” – could be done by reorienting the system.  We could have a judge as moderator, responsible for controlling the proceeding, ensuring the protection of basic rights, and carrying out the requirements of a uniform justice code.  We could also have the support of several “truthers” – almost always not lawyers – who’ve been trained only to seek truth by the asking of questions.  These truthers could be supported by professional fact-finding boards, paid for by the parties.

The alternative?  “This is a court of law, young man, not a court of justice” declared justice Oliver Wendell Holmes.[v]  That’s the ugly alternative – law rather than justice, and a contest instead of the truth.

• Define crimes as “harming others” not “harming myself.”  Justice can’t be achieved by arbitrary and changeable notions of what a crime is.  The essence of liberty is doing what we want to do unless it harms other people.  We have the right to starve ourselves, but not our children; to drink heavily, but not to sell or give alcohol to minors.

But we put some people in prison for using drugs that harm only themselves, while we allow other people under the influence of alcohol to kill innocents on the highways and then face little or no penalty.  Saying that taking drugs is stupid – which it is – is different than saying taking drugs is a crime.

A crime occurs whenever someone harms someone else.  We have to make the crime hurting other people, like maiming or killing someone while under the influence of anything.  “Apart from going to war, the ability to bring criminal indictments is the most awesome power a government has,” noted an editorial in the Wall Street Journal.[vi]   It’s a power that is easily misused, all too often to prosecute victimless crimes as part of a self-righteous political campaign or platform.

The only exception to the harming others principle is in cases of self-defense.  It would be nice if the police could always be there, but they can’t.  We have to have the right to defend ourselves without penalty, by whatever means necessary.

• Make civil lawsuits civil by limiting punitive damages and having losers – including their attorneys – pay for all court and legal costs.  Lawyers, tort and otherwise, have run amok.  They’ve created a system – rigged it, really – to allow them to file lawsuits fearlessly and frivolously.  They’re never held accountable, except at the extreme when they’ve been so far out of bounds that they face disciplinary action or disbarment.

We have to help them.  Several systemic changes are badly needed:

• First, there have to be limits on arbitrary, subjective pain and suffering or so-called punitive damages.  People and organizations should be made to pay when they’re in the wrong, but they shouldn’t be wronged in the process.  They should pay for real and measurable losses – such as medical costs, rehabilitation costs, lost wages.  Anything else is abusive.
• Second, those who lose lawsuits – plaintiffs or defendants – should be made to pay all of the costs of the case (both parties’ costs and court costs).
• And third, the attorneys on the losing side should split those costs with their clients, to give them a reason to be reasonable.  Attorneys aren’t innocent bystanders.  They’re part of the deal, often the prime movers in the deal.  They egg on their clients and drag out proceedings.  Why shouldn’t they have to pay too?  Why should they be exempt from financial pain?  Losing isn’t enough – they need paying, too.  They don’t right now because lawyers are the whole system, members of a secure club.  They get to fight to the last drop of our blood.

• Refuse to let one individual be penalized so that any other individual or group can get ahead.  Surely it was always a bad idea to throw away the life and dreams and hopes of any American in an attempt to rectify some perceived injustice from the past.  Affirmative action could more accurately be described as “abusive action.”

Let China and Russia operate on their community-comes-first or the nation-comes-first philosophy, with all of the disaster it’s wreaked on their people for centuries.  The American Idea of justice is to say, “Either there is justice for the individual or there is no justice.”

We expect people to get first and foremost what they deserve, not what they want (or demand, or claim as restitution).  And never at the expense of an innocent third party.

• Protect families from the society and the government.  Any society that works against its families ends up dedicated to their destruction.  That culture operates with gross social injustice.  The nuclear family gets…nuked.

The relentless drumbeat – there is no God, we’re here by chance, freedom is license, life is cheap, sex is recreational, take what you can get, it’s not your fault – creates an environment that can only be partly overcome by the most persistent and dedicated families.  Add in the government assaults of wild taxation and never-ending inflation – forcing families to delegate childrearing and work like dogs while still going into debt – and there’s no one left to instill family values.

When families crack from these or other pressures, culture dies from the inside out.  We need a completely reformed system that works carefully for the best interest of the family and everyone in it, and that refuses to treat the adults in the family like criminals (unless they really are).

Family judges need to be trained in family and not just in judging and be constituted as a panel to eliminate one-person bias.  Having non-lawyers here would be of great benefit – people who understand relationships, the strengths and weaknesses of assessments, and the dubious insights of family professionals who are often in cahoots with the judges and courts.

• Consider groups to be means, not ends.  We can be born into groups or we can join groups.  However we become a member, we have to remember that justice for each individual member is justice for the group.  Although a group can be a crucial means to achieving justice for its members, there is no way to give a group justice.

Establishing groups as an endgame is a certain way to build social injustice into the culture – whether that established group is white America or minority America, rich or poor, male or female, straight or gay.  We need to learn how to resist using or allowing the government to elevate or favor one group over others.

• Redefine economic justice to include merit and to eliminate arbitrary notions of fairness.  Too often in life, goals and schemes are defined with words that mean their opposite.  When many people talk about economic justice today, they mean anything but real justice.  They mean instead that everyone should have…well, a lot, but also roughly have the same.

They don’t realize – or care – that those are contradictory notions.  If everyone is forced to have the same, we know with certainty from all of human history that this will be very little for everyone.

We need to redefine economic justice along the lines outlined in the chapter on Justice, where “justice” and “deserve” are once again connected, and “fairness” is a term left on the playing fields of sports – if it even works there.

• Start with economic justice, not with what the government demands or thinks it needs.  We can’t have economic justice if our government is uneconomical and unjust, running never-ending and ever-growing deficits, bailing out big stupid businesses while small smart businesses go under.  The government starts from the wrong place, from “Here’s what we think government needs to do, so now pay up.”

The right place to start – the place where our government started for 150 years, and the country started for another 200 years before that – is, “How do we so conduct our public business so as to minimize the amount we have to take from our citizens?”  Frugality, balanced budgets and stable money (meaning no inflation) were prized, and should be again.  And all citizens should be treated justly, with no one, however supposedly disadvantaged, allowed to disadvantage others.

• Eliminate all taxes on productive effort and risk-taking.  If we tax something, we get less of it.  Everyone with consciousness might know this, but it seems to be a mystery to every new generation of politicians.  We don’t want to have less work, effort, ingenuity, risk, or investment, so we’ve got to stop taxing them.

A flat tax on income – 5 percent or 10 percent or whatever percentage on income is better than what we have now.  But what we really need is a no-percentage tax on income.

Can you imagine the explosion of economic activity if we went from, for example, one of the highest corporate income taxes in the world to no corporate income tax?  This isn’t cutting taxes to get more income to tax in the long run – it’s eliminating taxes to allow Americans to prosper beyond their imagination.

But where will the government get the money it needs to do what it really needs to do?  By taxing borrowing and consumption, which we could certainly use less of.  Now here is a place where a flat tax will do quite nicely.