A Calm and Reasonableness Like the World Has Never Seen

December 2, 1942, is not a date that has lived in infamy, and yet it is one of the most important dates in human history. That is the date upon which mankind probably sowed the seeds of its own destruction.

On that Wednesday afternoon, under the racquetball courts at the University of Chicago, Enrico Fermi and his group of scientists popped open a bottle of chianti. Moments before, “Chicago Pile-1,” the world’s first nuclear reactor, had gone “critical” and become self-sustaining. Mankind had unlocked the power of the atom.

The output of CP-1 was minimal – barely enough to energize the filament of a light bulb. And yet, so diligent were those who sought to amplify that power that less than three years later an atomic bomb was dropped on Japan that detonated with the same amount of force as 15,000 tons of TNT, killing 80,000 people. Many thousands more subsequently died from burns and radiation poisoning. Three days later (today is the 72nd anniversary, in fact), a second bomb was dropped.

Instead of looking at the wasteland that these bombs created and viewing them as something that should never have been done, people went in the opposite direction, building thousands more of these bombs, some of which are hundreds of times more powerful than the ones that were dropped on Japan. And here we are today, all of us living under the threat of nuclear annihilation. It is a heavy burden. Oppenheimer and Stimson thought little of tomorrow’s children when they sought to become death. I cannot be the only father in America who darkly wonders as he drives his daughters to school whether this is the day when they might be vaporized.

Now, we have a situation. Despite numerous attempts to get North Korea to abandon its nuclear aspirations, it seems that the North Koreans may have finally developed a bomb that is capable of reaching the United States. The president has threatened nuclear war. The very concept is madness, and yet we inch closer to it. Already, I sense the leadership in Washington priming the public to accept the argument that they had no other choice.

I reject that. Here is another choice: talk to them.

Begin those talks by acknowledging the reason that diplomacy has failed. Admit that a policy of “we reserve the right to destroy you at any time while also rejecting your claim to defend yourself by similar means,” is merely hypocrisy masquerading as diplomacy. “Trust us not to destroy you,” is not something that any hostile sovereign power can reasonably be expected to accept.

How about taking the hypocrisy out of things and simply saying, “we don’t think you should have nuclear weapons and, guess what, neither should we? No one should. So here’s the deal: abandon your nuclear program and we will abandon ours. Truly. Not only will we cease construction of any further weapons, but we will also begin the immediate dismantling of all of our current weapons. It’s going to take us some time, because we have so very many of them, but in ten years the people of North Korea will no longer have to live in fear of nuclear attack from the United States.”

This is radical, I know. “We can’t do that,” you’re thinking. “The Chinese and the Russians will never follow our lead. We’ll be vulnerable.”

It’s okay, just breathe. First, I actually think that if we began a complete and unilateral draw-down of our arsenal, the Chinese and Russians might follow our lead because they could no longer justify the risk and expense of maintaining their own arsenals. But even if they don’t, it doesn’t matter because of the simple truth that for some things there is no sufficient justification. The mass incineration of children is one of those things.

I want you to engage in a little thought experiment with me. It’s going to be a touch uncomfortable, but I think it’s necessary in these times.

Imagine that you’re in a room by yourself and you’ve just received word that the enemy has launched their nuclear weapons. Our defenses have failed. In ten minutes all of America will be lost.

But, on a control panel in front of you, there is a large red button. Pressing the button will launch our devastating and unstoppable retaliatory attack. There is nothing left on earth for you to do now except to push it, or not push it.

Do you push it?

In your mind, push it, and ask yourself what you have done, really. Have you saved your country? Have you done something that the withered remnants of humanity will thank you for? Have you done what Jesus would have done?

The development of the atom bomb was folly; mankind is too impulsive, unpredictable, and accident-prone to control such power — that we haven’t killed ourselves with it yet is nothing less than a miracle. But now we have an opportunity. We can use this opportunity to further prove our unworthiness to possess deep knowledge, or we can use it to save face while walking back an advance that should never have been made.

The people of my generation had no choice but to be born under a nuclear threat. What better gift to give to the next generation than to sweep that threat aside?

Ought we not to at least try?

Equality Is A Necessary Expense

Statement of the Shadow President:

Recently, there has been talk of the “tremendous medical costs” associated with accommodating transgender persons in our military. I am not concerned.

Perhaps there really are tremendous costs attached to supporting a military that reflects the diversity that makes up America. (I doubt it, but maybe.) Even so, preserving that diversity by allowing people who come from minority communities to participate in our national institutions is what a country like ours must pay for. More than that, it’s what a country like ours exists for.

After all, the only reason that we have a military is to preserve our values and our way of life. There is no value that we have fought harder to enshrine in our national identity than that of equality. In my vision of our American family, all are included. All belong. It would be a mockery of the military to prevent it from exemplifying one of the principles that it is meant to protect.

So, yes, our military is expensive and maybe we are paying too much for it. That’s a conversation that we ought to have. But allowing transgender Americans to fully participate in their society, whether it be through military service or otherwise, is not an unnecessary expense. It is, in fact, what we must do if we are to survive and be the nation that we think we are.

Disclaimer: I am not actually the president of the United States. The views expressed herein are not necessarily those of the person who is.


Luna is twenty-eight and under federal indictment for the second time. The first time had been on account of her boyfriend, who asked her to help him sell some drugs. She made a few phone calls, never suspecting that the buyer on the other end was an informant working off his own case for the FBI. She did time in Carswell before she was “returned” to Mexico.

She is a Mexican legally, but not really. Her parents had brought her to Texas when she was young, and she’d grown up here, graduated from High School here, had kids here. But she isn’t a citizen and she’d been caught dealing drugs and that’s that.

In Mexico, she tried to make a go of it by living with family that she’d never met before. At least she spoke the language. She called her kids, who remained in Texas, daily. Every so often, they Skyped. After a while, though, she decided that she wanted to hold them again so she violated the terms of her release and tried to come back. She was caught at the checkpoint. Now, she’s in the Winkler County Jail.

“Luna, my darling!” Liz says as she walks in, “what have you done? I’m so sorry for you!”

Luna explains that there were no drugs this time, just an attempt to come back to see her girls. “But the guidelines, darling! You know the guidelines. Don’t you remember the federal sentencing guidelines?”

Liz lays a chart on the table.

“Your base offense level is here,” she says, pointing with a pen. “But you were deported for a drug crime, which means you’re catching all these extra levels. Plus, that prior case gives you criminal history points. Plus, you were on supervised release when you tried to come back: more points! It’s bad!”

“How bad?”

Liz puts down the pen. “Even if at the bottom of the range, you’re looking at about five years.”


“I mean, you can try it if you want to, but you’re not gonna win it. You were caught at the checkpoint. You have a prior drug conviction. You can’t dispute any of that.”

“But five years …”

“The system punishes people for going to trial. The judge can make it worse than five if you lose. And he will. Trust me.”

“But what about my kids? I need to raise them.”

“How old are they?”

“Seven and nine.”

Liz folds her hands and places them on the table. “I’m sorry, honey, but you’re going to have to find somebody else to raise your kids.”

Cross-Posted from Human Rights in America.

Entering the Calculation

Slate has run an interview with law professor John Pfaff, who suggests that, contrary to popular belief, America’s mass incarceration problem is not a result of the war on drugs or longer prison sentences. Instead, he posits that it’s the result of prosecutors charging more felonies than they used to. [According to Pfaff, between the years 1994 to 2008, the probability that a district attorney would file a felony charge increased from 1 in 3, to 2 in 3.] Pfaff doesn’t know the reason for the increase, nor does he know how to combat it. This brings up some interesting questions.

First, why are prosecutors charging more cases these days? Well, why not? With a national plea rate in excess of 90%, it’s painless. It makes good political sense to indict 2 in 3 cases if you know that they’re both likely to plead. That way you can be “tough on crime” and lazy at the same time.

Second, how do we discourage prosecutors from bringing too many charges?  It seems to me that taking more cases to trial would help. If prosecutors expect the cases that they indict to be tried instead of pled, they’re much less likely to pursue weak cases or cases with unserious charges. This will have the laudatory effect of both minimizing the risk of innocent people going to prison, as well as making sure that our prisons only hold people who really need to be there.

Of course, legislatures can help with this by jettisoning the draconian drug sentences that exist in this country, and replacing them with sentences that are reasonable. After all, it’s longer sentences that compel defendants, even in cases where the evidence against them is weak, to plead guilty. If, however, the sentences were such that going to trial were more frequently worth the risk, more trials would happen, forcing prosecutors to prioritize. That would get the charging rate back down to 1 in 3 pretty quickly, I bet. And maybe it won’t even be that much longer before the United States no longer has the largest prison population in the world.


The Prison Problem (David Brooks, 29 Sept. 2015)

An Antidote To Unjust Laws

Jury nullification occurs when a jury decides to ignore the law. Why would anyone ever want a jury to do that? Well, there are a lot of unjust laws out there. What is an unjust law? According to Martin Luther King Jr. [pdf], “an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.”

Even though Justice Scalia probably sighs loudly whenever someone utters the phrase “natural law,” I’m going to talk about it anyway. The fact is that some pretty bright and historically significant people have relied upon natural law. Martin Luther King was one of them. Thomas Jefferson was another.

What I would expect any judge to be even more uncomfortable with than allowing natural law arguments in courtrooms, is continuing the practice of not allowing them, as that seems to infringe upon one of the central principles of a defendant’s right to due process: the right to be heard.

The most sacred of interests, a person’s liberty and reputation, are at stake in criminal trials. As such, we must be certain that all possible arguments in favor of the preservation of each are allowed. If we do not empower jurors to at least consider the merits of a law which, at least in theory, they have already approved, then we engage in an exercise that is little more than a show trial. This may go a long way toward satisfying our desire for expeditious process, but it must go a very little way toward satisfying our demand for justice. It is not enough to merely apply the law. We must also inquire into the law’s morality. Dred Scott, let us never forget, was once the law.

When we consider that the United States “has less than 5 percent of the world’s population, [yet] has almost a quarter of the world’s prisoners,” how can we deny that many of our criminal laws remain deserving of whatever scrutiny is available? Such a prison population represents a failure of democratic government and the jury trial, which is perhaps one of the purest forms of democracy devised, is a way to fix it. By preventing arguments on nullification, however, the courts do not allow for meaningful trials. Instead, they are content to send millions to prison who may be factually guilty, but morally innocent. That is shameful.

[For a more scholarly and academically supported argument on this issue, please see this pdf.]



Jury Convicts Ex-Pastor Who Shared Jury Nullification Fliers

Don’t Bind Me to “Whizzer” White

Judges should abandon the doctrine of stare decisis and welcome the citation of non-legal texts in attorney briefs. The power of an argument derives from the quality of its reasoning and, to a degree, its poetics. There should be no power in its “position,” such as the fact that it originated in a court. The benefit of being on a court should consist solely in the fact that judges enjoy prominence in our society and, as such, their words garner more attention than those of other citizens. Judges’ words should be given no additional power simply because of the judge’s title.

The Ancient Greeks understood this. Cleon was more prominent than Diodotus, but his argument, being barbarous, failed. On the other hand, Pericles was adored, not because he was an important figure in society, but because he was a clear and eloquent thinker.

I recognize that becoming a judge is difficult. It suggests a level of persistence, intelligence, integrity, and wisdom that is uncommon in most people. It suggests this; it doesn’t guarantee it. William Rehnquist was Chief Justice of the United States. He was also a drug-addicted hypocrite whose judicial philosophy was to decide cases according to his personal prejudices. His First Amendment jurisprudence made that plain. I say good riddance to William Rehnquist. Stare decisis, however, says Rehnquist lives.

Of course, if a judge’s opinions are worthy of guiding us beyond their authors’ corporal lives, that’s fine. There have been great minds in the American judiciary (Brandeis and Holmes come immediately to mind) whose opinions are deserving of special and continued consideration. But such minds are rare. We should not pretend that every judge is of such caliber. Yet that is how stare decisis works; James Madison’s and Jean-Jacques Rousseau’s comments are merely “persuasive,” while Warren Burger’s and Sandra Day O’Connor’s are “binding.” This is ludicrous. [Ironically, Justice Thomas might agree with me.] Instead of following people just because they happen to be a judge, let’s treat nothing as binding and everything as persuasive. The question then becomes what is most persuasive.

But what about predictability? Won’t unmooring the courts from precedent result in chaos? No. Abandoning stare decisis will not untether courts from the pursuit of reason and truth. These things are timeless. They will forever form the basis for all quality opinions, legal or not. By abandoning stare decisis judicial legitimacy and consistency will come not from adhering to a rule simply because, good or not, some prior court said it was the rule. Rather, it will derive from the repeated application of the best rules simply because they have proven to be the best rules.

This is, in fact, what happens anyway. Courts part with precedent when it’s obvious that they must (Dred Scott no longer controls, thank god), but this process takes too long. It results in bad opinions having an unacceptable level of control over our society. It also discourages diligent attorneys from mining mankind’s vast, non-caselaw-related, intellectual riches for gems.

So, let’s abandon stare decisis. Let our jurisprudence be guided by bright lights of thought wherever they may be found. Let the grip of mediocre opinions written by lesser jurists retire when their authors do.

Drink Like An Artist

Let me begin by saying that I find the concept of “drinking” whisky to be misleading. The drinking of the substance is merely one small aspect of its enjoyment. Whisky is a companion that appeals to all of the senses and sensibilities. This, then, is my process.

The first thing to do on a whisky-blessed evening is admire the silhouette of the bottle. Some bottles, like Scapa’s, are breathtakingly elegant. Others, like Jura’s, are squat and serious looking. I like to think that the shape of each particular whisky’s bottle is no accident, that someone at some time in the history of that particular distillery gave consideration to the bottle and determined that that particular shape, whatever it is, best captures the character of their particular malt.

Next, pour a glass and admire the whisky’s hue. [I know that some distilleries artificially color their whiskies. This doesn’t bother me much. Again, I like to think that thought was given to way the whisky presents in-glass.] I won’t, here, talk about whisky glasses. The buying of whisky-specific glasses seems overly-burdensome and expensive. Experts will tell you that the best glass is one that curls slightly inward at the top, to capture the scent. No doubt this is true, but don’t let the absence of the perfect glass stand between you and a good dram. Use whatever you have at hand. I use a red wine glass.

Following the pour, swirl the whisky to loosen it a little and release some of its odors. Many whisky drinkers add a touch of purified water to unspool the aromas even further, but I don’t. Although the addition of water is preferred, it’s more effort than I’m willing to bear. Whisky drinking should be the opposite of tedious. I drink my whisky neat.

Over the course of the next several minutes, sniff the whisky as it opens. Nosing the glass is the most important part of the whisky experience. The dram reveals itself to you over time. In The Glenlivet 12 year for example, initial sweet notes of apple give way to undertones of small flower earthiness. In the Lagavulin 16, an initial sharp astringency succumbs to a dark smokiness.

After some time nosing, take a sip and let the liquid roll over your tongue. When you do this, attend to how it affects your various taste buds. Initially, it will burn, but don’t swallow. As with the nosing, let it reveal itself to you. You will begin to taste new flavors under the initial sensation of alcohol. What are they? Vanilla? Smoke? Wood? Try to catalogue them. Like the carefully selected tones in one of Takemitsu’s chords, appreciate how they work together to make something unexpectedly beautiful.

After you swallow, pay attention to the finish. How long does it last? What is its flavor legacy?

This is my approach. I drink whisky not as an escape, but as a reminder that there are things in this life that we should rush toward and embrace.

[Drop cap by Jessica Hische.]