Tag Archives: law

Police Militarization

After America’s various foreign adventures resulted in a significant surplus of military equipment, there was a need to get rid of this excess. While this had sometimes been done by simple disposal or mothballing in the past, this time it was decided that some of the equipment would be provided to local police forces. While this might have seemed to be a good idea at the time, it did lead to some infamous images that showed war ready police squaring off against unarmed civilians—an image one would expect in a dictatorship but not in a democracy.

While these images did fan emotional flames, they also helped start an important debate about the appropriateness of police equipment, methods and operations. The Obama regime responded by putting some restrictions on the military hardware that could be transferred to the police, although many of the restrictions were on gear that the police had, in general, never requested.

As might be expected, Trump has decided to lift the Obama ban and Jeff Sessions touted this as a rational response to crime and social ills. As Sessions sees it, “(W)e are fighting a multi-front battle: an increase in violent crime, a rise in vicious gangs, an opioid epidemic, threats from terrorism, combined with a culture in which family and discipline seem to be eroding further and a disturbing disrespect for the rule of law.” Perhaps Sessions believes that arming the police with tanks and grenade launchers will help improve family stability and shore up discipline.

While it might be tempting to dismiss Trump and Session as engaged in a mix of macho swagger and the seemingly deranged view that bigger guns are the solution to social ills, there is a very real issue here about what is appropriate equipment for the police.

Obviously enough, one key factor in determining the appropriate armaments for police is the role that the police are supposed to play in society. In a democratic state aimed at the good of the people (the classic Lockean state) the role of the police is to protect and serve the people. On this view, the police do need armaments suitable to combat domestic threats to life, liberty and property. In general, this would entail engaging untrained civilian opponents equipped with light arms (such as pistols and shotguns). As such, the appropriate weapons for the general police would also be light arms.

Naturally enough, the possibility of unusual circumstances must be kept in mind. Since the United States is awash in guns, the police might be called upon to face off against opponents armed with military grade light weapons. They might also be called upon to go up against experienced (or fanatical) opponents that have fortified themselves. They are also sometimes called upon to face off against large numbers of rioters.  In such cases, the police would justly require such things as riot gear and military grade equipment. However, these should be restricted to specially trained special units, such as SWAT.

It might be objected that police should be more generally equipped with this sort of equipment, just in case they need it. I certainly see the appeal to this—my view of combat preparation is that one should be ready for almost anything and meeting resistance with overwhelming force is an effective way to get the job done. But, that points to the problem: to the degree the police adopt the combat mindset, they are moving away from being police and towards being soldiers. Given the distinction between the missions, having police operating like soldiers is problematic. After all, defeating the enemy is rather different from protecting and serving.

There is also the problem that military grade equipment tends to be more damaging than the standard police issue weapons. While a pistol can obviously kill, automatic weapons can do considerably more damage in a short amount of time. The police, unlike soldiers, are presumed to be engaging fellow citizens and the objective is to use as little force as possible—they are, after all, supposed to be policing rather than subjugating or defeating.

Of course, the view that the police exist for the good of the people is not the only possible view of the police. As can be seen around the world, some states regard their police as tools of repression and control. Roughly put, the police operate as the military, only with their fellow citizens as enemies. If the police are regarded as tools of the rulers that exist to maintain their law and order and to preserve their privilege, then a militarized police force makes perfect sense. As just noted, these police function as an army against the civilian population of their own country, serving the will of the rulers. Militaries serve as an army against the people of other countries, serving the will of the rulers. Same basic role, but somewhat different targets.

It could be argued that while this is something practiced by repressive states, it is also suitable for a democratic state. Jeff Sessions characterizes policing as a battle and it could be contended that he is right—there are interior enemies that must be defeated in the war on crime. On this view, the police are to engage these enemies in a way analogous to the military engaging a foreign foe and thus it makes perfect sense that they would need military grade equipment. This does endorse the view that the police are an occupying army, but it is regarded as a feature rather than a flaw—that is the function of the police.

While I do think that the militarization of the police impacts their behavior (I know I would be very tempted to use a tank if I had one), my main concern is not with what weapons the police have access to, but the attitude and moral philosophy behind how they are armed. That is, my concern is not so much that the police have the weapons of an army, but that they are regarded more as an army to be used against citizens than as protectors of life, liberty and property.


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Bathroom Laws: Bathroom Rights

One way to approach the moral issue of whether transgender people should be able to choose their bathrooms is to consider the matter in utilitarian terms. This would involve weighing the harms inflicted by denying this choice against the harms inflicted by granting it. In a democracy, this approach seems to a reasonable one—at least if it is believed that a democratic state should aim at the general good of the people.

A utilitarian assessment of the bathroom choice issue leads to an obvious conclusion: bathroom choice should be granted. As I have argued in another essay, the two main arguments against bathroom choice fail in the face of due consideration and facts. One argument is that allowing bathroom choice would put people in danger. Since some states have already allowed bathroom choice, there is data about the danger presented by such choice. Currently, the evidence shows that there is no meaningful danger. As some wits enjoy pointing out, more Republican lawmakers have been arrested for bathroom misconduct than transgender people. As such, those worried about misdeeds in bathrooms should be focusing on that threat. The other argument is the privacy argument, which falls apart under analysis.

While those advancing these arguments might honestly believe in them, it might be suspected that the prime motivation for opposing bathroom choice is a dislike of transgender people—the “transgender people are icky argument.” This “argument” has no merit on the face of it, which is why it is not advanced as a reason by opponents of bathroom choice.

One stock problem with utilitarian arguments is that they can be used to justify the violation of rights. This problem typically arises in cases in which the benefits received by a numerical majority come at the expense of harms done to a numerical minority. However, it can also arise in cases where the greater benefits to a numerical minority outweigh the lesser harms to a numerical majority. In the case at hand, those opposed to bathroom choice could argue that even if bathroom choice benefits transgender people far more than it harms people who oppose bathroom choice, the rights of anti-choice people are being violated. This then makes the matter a question of competing rights.

In the case of public bathroom facilities, such as student bathrooms at schools, members of the public have the right to use them—that is the nature of public goods. There are, however, reasonable limits placed on access. For example, people are generally not allowed to just wander off the street into schools to use the facilities. Likewise, the bathrooms in courthouses and government buildings are generally not open to anyone to wander off the street and use. So, there is a right to public bathrooms—but, like all rights, it does have its limits. It can thus be assumed that transgender people have bathroom rights as do people who oppose bathroom choice. What is in dispute is whether the right of transgender people to choose their bathroom trumps the right of anti-choice people to not be forced to use bathrooms with transgender people.

Disputes over competing rights are often settled by utilitarian considerations, but the utilitarian argument already favors bathroom choice. As such, another approach is needed and a reasonable one is the consideration of which right has priority. This approach assumes that there is a hierarchy of rights and that one right can take precedent over another. Fortunately, this is intuitively appealing. For example, while people have a right to free expression, the right to not be unjustly harmed trumps it—which is why libel and slander are not protected by this right.

So, the bathroom issue comes down to this: does the right of a transgender person to choose their bathroom have priority over the right of an anti-choice person to not encounter transgender people in the bathroom? My inclination is that the right of the transgender person has priority over the anti-choice person. To support this, I will use an analogy to race.

Not so long ago, there were separate bathrooms for black and white people. When the bathrooms were to be integrated, there were dire warnings that terrible things would occur if bathrooms were integrated. Obviously enough, these terrible things did not take place. Whites could also have argued that they had a right to not be in the same bathroom as blacks. However, the alleged white right to not be in a bathroom with blacks does not seem to trump the right of blacks to use the bathroom. Likewise, the right of transgender people to choose their bathroom trumps the right of anti-choice people to exclude them.

It can be objected that if this argument is taken to its logical conclusion, then gender mixing will occur in the bathrooms. For example, one common sight at road races (such as 5Ks and marathons) are long lines leading to the women’s bathrooms and short lines (or no lines) for the men’s bathrooms. Women runners, desperate to lighten their load, might start going into the men’s room (they already sometimes do). Then terrible things might happen. Specifically, I might need to wait longer to pee before races. This is a case where my selfishness must outweigh my moral principles: though I have no moral objection to gender mixing of bathrooms, my selfish bladder says that I cannot give up my right to a shorter line. This makes me a bad person, but a bad person with a happy bladder. Yes, this is satire. Maybe.

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Inheritance & Welfare

In general, conservatives tend to oppose welfare and similar sorts of social programs. They also tend to be protective of inheritance—for example, they refer to the tax on inheritance with the dysphemism “death tax” and have endeavored to battle this tax. While these positions might seem compatible, a strong case can be made that the arguments against social programs would also apply as strong criticisms of inheritance.

One stock criticism of programs like welfare is that receiving something without earning it is intrinsically wrong. People should, the reasoning goes, earn what they receive. This is often the logic behind proposals to make people work to receive social support.

On the face of it, inheritance would seem the same as unearned social support: a person just receives whatever is left to her. If receiving something without earning it is wrong, this would make inheritance wrong.

A sensible objection is that people sometimes do earn what they inherit. For example, young Lord Trump might have toiled in his father’s business, thus earning the inherited wealth from this business. The same would also apply to social programs. People often earned the social support they receive by the work they did before needing the support. For example, a person who was fired as part of boosting the stock value of the company would have earned unemployment benefits by his past labor. Those getting Social Security retirement benefits in the United States also paid in, thus earning what they received.

It might be contended that some do receive social support without having earned it through labor and hence it would be wrong for them to receive it. This same principle would also apply to unearned inheritance: so, if people should not get support on the basis of this principle, they should also not get an inheritance that is unearned.

A second stock criticism of social support programs is that the resources could be better spent. For example, it could be argued that eliminating benefits in favor of tax cuts for businesses would be more beneficial. After all, some claim, the poor waste the money on drugs –at least that seems to be the reasoning behind mandatory drug tests for recipients of support. This sort of utilitarian reasoning should also apply to inheritances: money that would be squandered by the idle rich like Paris Hilton should be used where it would do far more good, such as funding education or infrastructure repairs (perhaps replacing the lead pipes used to transport water).

A reasonable reply is that a person has the moral right to decide how her possessions will be distributed after her death—this is a matter of choice. In contrast, social programs involve the takers taking the money of the makers (presumably to squander on drugs). Thus, a relevant difference here is the matter of choice. Inheritance is chosen, being taxed to support the takers is not.

The easy counter to this, at least in a democratic state, is that providing such support is a choice: the citizens have decided that this is what they want. As such, the people have chosen, thus making it a matter of choice.

An individual can raise the objection that she did not chose to provide for the takers—she does not want her tax dollars going to them. As such, there is an important distinction between inheritance and social support.

I do admit that there is a certain appeal in the idea of a pay-as-you-go state system that also allows choice. That is, citizens would pay for the services they use (such as schools, roads, the legal system, defense, police and so on) and they can volunteer to pay for other things. Naturally, citizens who elected to not pay into the social support programs would be ineligible for benefits in these systems—so the makers who wish not to contribute would need to hope that fickle fate or poor decisions did not transform them into takers.

Despite the appeal of such a system, it seems likely that it would result in the collapse of civilization. This is the sort of argument Locke used when arguing why the citizens need to go along with the decision of the majority: the alternative is the destruction of the political body.

A final stock objection against social programs is that they have a harmful impact on the moral character of the recipients. Some common claims are that social support destroys the incentive to work, breeds a culture of dependence and destroys self-respect. These are, it is claimed, are the consequences of getting something for nothing.

These same consequences should also arise from inheritance, which is also getting something for nothing (the matter of earned inheritance and support was addressed above). As such, if social programs should be eliminated on this ground, so should inheritance. Mary Wollstonecraft argued at length in support of the claim that inherited wealth is morally deleterious in her Vindication of the Rights of Women.

One reply to this is to argue that there is relevant difference between the two: most inheritances are very small and thus do not destroy incentives or breed dependence. For example, if a young person receives $1,000 from an inheritance, that will not suffice to destroy his incentives or breed dependence. This is because $1,000 will not last long. In contrast, social support can provide a person with enough to live on, thus allowing dependence to take root and incentive to rot away.

This argument does show that small inheritances would be fine, but would show that substantial inheritances would have the harmful effects attributed to the social programs. If having bare survival support from the state suffices to create dependence and destroy incentive, then receiving considerable wealth from an inheritance should inflict massive harm on the recipient. As such, if people need to be protected from the harms of social support, they must also be protected from the terrible danger presented by significant inheritances. Since most people receive little or no inheritances, the majority of people will be safe from this harm and their inheritances should be allowed. However, the wealthy are in danger proportional to their wealth and must be protected from this dire threat to their independence and ambition.

It could be countered that only the poor are especially vulnerable to the danger of unearned wealth and the wealthy can, in general, safely accept it without harm. This is certainly an empirical matter and objective research should suffice to show whether this is true or not.

It would seem that many of the arguments against social support would also apply to inheritance. As such, if these arguments work against social support, they should also work against inheritance. But, perhaps so much social support would not be needed if wealth were less concentrated.


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Why Gun Rights Advocates Should Back Apple

As this is being written, Apple is involved in a battle with the state over cracking its own security measures. The company has made its case via a letter to the customers. Although I have written on the matter of encryption and backdoors on other occasions, I will focus on why American gun rights advocates should back Apple in this particular matter and support encryption in general. To do so I will make use of three stock gun rights arguments. As always, I will also consider reasonable objections against my view.

The comparison of guns and encryption was inspired by two main factors. The first is that the alleged San Bernardino shooter whose phone Apple is supposed to crack used guns to commit the alleged murders. However, the central debate arising from this situation is over the alleged killer’s phone. The second is that encryption has been classified as a weapon, which makes for an interesting connection to other weapons, most importantly guns.  I now turn to my arguments.

One standard argument in defense of gun rights in the United States is to appeal to the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  This is supposed to provide citizens with the right to own weapons and is often used to argue for the rights to carry weapons openly.

While there is obviously no Constitutional Amendment that mentions a right to encryption, this right would appear to fall under the Fourth Amendment: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

While people can obviously be more or less fixated on different rights, if gun rights are regarded as justified by the Constitution, then consistency would require accepting that a right of encryption is justified by the Constitution. As such, gun rights advocates should also advocate on behalf of encryption rights.

It could be objected that while the Constriction makes clear reference to arms, papers and effects, it makes no reference to digital data. As such, since there is no right to be secure in regards to digital data, there is no right to encryption.

The easy reply to this is to employ a version of the argument used by gun advocates when their critics point out that the arms referred to in the Constitution are flintlocks, swords, and bayonets. That is, 18th century arms. The response is, of course, that “arms” now includes modern weapons as well, such as assault rifles. The same sort of argument can be used in support of encryption rights: the modern version of papers would include digital data—in the 18th century “papers” referred to a means of data storage.

Another objection is that the Fourth Amendment does not grant a right to encryption—it merely grants a right to be secure such that the state has to go through a specific process to violate that security. Crudely put, it is not a right to have locks on your door; it is a right that the state must have a proper warrant before coming in. In the case of digital data, the lock would be the encryption.

The reasonable reply to this is supplied by Thomas Hobbes. He made the excellent point that a right without the means to exercise it is not a right at all. As such, the people need the means to exercise their right to be secure and this would cover the use of encryption.

A final objection is that even if people have a right to encryption, it does not follow that they have a right to unbreakable encryption that would keep the state out. After all, the Fourth Amendment allows for reasonable searches and seizures.

The reply to this is to point out that while reasonable searches and seizures are allowed, they are not granted to the state as a right.  That is, the state does not have a Constitutional Guarantee to get into our effects and papers. As such, citizens are under no obligation to provide the state with a means to access their papers and effects.

Given these arguments, there would seem to be a Constitutionally protected right to encryption and those who profess a love of the Constitution and the Second Amendment in particular should lovingly embrace encryption.

A second argument commonly used by gun advocates is that citizens need guns in order to protect themselves from criminals, terrorists and other bad guys. This argument is used even in the face of the obvious fact that criminals, terrorists and other bad guys use guns to cause harm. When it is argued that the way to ensure safety is to restrict or even eliminate gun ownership, two stock replies are that then only the bad guys will have guns and that the only way to stop a bad buy with a gun is a good guy with a gun.

The same sort of argument applies to encryption: there are criminals, terrorists and other bad guys who want to harm us by getting into our data. Just as a gun is supposed to protect a citizen from threats in the physical world, encryption is a weapon of defense in the digital world.

It can be objected that the bad guys will also use encryption to protect themselves from law enforcement. However, this is exactly like how the bad guys also use guns to protect themselves from law enforcement. As such, if people should be allowed to have guns to defend themselves against bad guys, the same right of self-defense justifies the possession of encryption. If it is argued that citizens should give up encryption in favor of safety, then the same must be said of guns—something that certain politicians apparently do not grasp.

It might be said that while citizens do have a right to encryption, the state must have the means to turn it off so it can engage in investigations and spying on the bad guys. The same argument could be made for a “turn off” device for guns that would allow them to be remotely disabled by the state—citizens who are law abiding will have nothing to worry about, since the state would have to go through due process to turn off their guns.

The response to such a gun switch proposal is easy to imagine—gun rights advocates would point out that the bad guys would soon acquire the means to turn off the guns of honest citizens and leave them helpless in the face of an attack. The same concern applies to having an off switch for encryption: the bad guys would soon have it and use it to harm honest citizens. As such, citizens need unbreakable encryption in order to be safe and this should be supported by those who believe that citizens need guns to be safe.

The third commonly used gun rights argument is based on the claim that citizens need guns in order to protect themselves from the tyranny of the state. The idea is that armed citizens provide a deterrence against state tyranny and arms provide a means of defense should deterrence fail.

This argument can also be applied to encryption: the rights of the citizens are protected from the state’s intrusion because the state cannot gain access to the citizen’s papers without the consent of the citizen. In this regard, encryption provides even greater security than the gun—the state, after all, has much larger guns and can easily kill any citizen or any mob of small arm carrying citizens. But encryption that it cannot break puts every citizen on equal footing with the state in this regard. Because of this, those who are worried about the tyranny of the state should support encryption.

In light of the above arguments, those that favor gun rights should also back encryption rights. After all, the justifications for gun rights even more strongly support the right to encryption.


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Kim Davis & Rule of Law

Those critical of Kim Davis, the county clerk who refused to issue marriage licenses to same-sex couples and was jailed for being in contempt of court, often appeal to a rule of law principle. The main principle used seems to be that individual belief cannot be used to trump the law.

Some of those who support Davis have made the point that some state and local governments are ignoring federal laws in regards to drugs and immigration. To be more specific, it is pointed out that some states have legalized (or decriminalized) marijuana despite the fact that federal law still defines it as a controlled substance. It is also pointed out that some local governments are ignoring federal immigration law and acting on their own—such as issuing identification to illegal immigrants and providing services.

Some of Davis’ supporters even note that some of the same people who insist that Davis follow the law tolerate or even support state and local governments ignoring the federal drug an immigration laws.

One way to respond to the assertions is to claim that Davis’ defenders are committing the red herring fallacy. This is a fallacy in which an irrelevant topic is presented in order to divert attention from the original issue. The basic idea is to “win” an argument by leading attention away from the argument and to another topic. If the issue is whether or not Davis should follow the law, the failure of some states and local governments to enforce federal law is irrelevant. This is like a speeder who has been pulled over and argues that she should not get a ticket because another officer did not ticket someone else for speeding. What some other officer did or did not do to some other speeder is clearly not relevant in this case. As such, this approach would fail to defend Davis.

In regards to the people who say Davis should follow the law, yet are seemingly fine with the federal drug and immigration laws being ignored, to assert that they are wrong about Davis because of what they think about the other laws would be to commit the tu quoque ad hominem. This fallacy is committed when it is concluded that a person’s claim is false because it is inconsistent with something else a person has said. Since fallacies are arguments whose premises fail to logically support the conclusion, this tactic would not logically defend Davis.

Those who wish to defend Davis can, however, make an appeal to consistency and fairness: if it is acceptable for the states and local governments to ignore federal laws without punishment, then it would thus seem acceptable for Kim Davis to also ignore these laws without being punished. Those not interested in defending Davis could also make the point that consistency does require that if Davis is compelled to obey the law regarding same-sex marriage, then the same principle must be applied in regards to the drug and immigration laws. As such, the states and local governments that are not enforcing these laws should be compelled to enforce them and failure to do so should result in legal action against the state officials who fail to do their jobs.

This line of reasoning is certainly plausible, but it can be countered by attempting to show a relevant difference (or differences) between the laws in question. In practice most people do not use this approach—rather, they have the “principle” that the laws they like should be enforced and the laws they oppose should not be enforced. This is, obviously enough, not a legitimate legal or moral principle.  This applies to those who like same-sex marriage (and think the law should be obeyed) and those who dislike it (and think the law should be ignored). It also applies to those who like marijuana (and think the laws should be ignored) and those who dislike it (and think the laws should be obeyed).

In terms of making the relevant difference argument, there are many possible approaches depending on which difference is regarded as relevant. Those who wish to defend Davis might argue that her resistance to the law is based on her religious views and hence her disobedience can be justified on the grounds of religious liberty. Of course, there are those who oppose the immigration laws on religious grounds and even some who oppose the laws against drugs on theological grounds. As such, if the religious liberty argument is used in one case, it can also be applied to the others.

Those who want Davis to follow the law but who oppose the enforcement of certain drug and immigration laws could contend that Davis’ is violating the constitutional rights of citizens and that this is a sufficient difference to justify a difference in enforcement. The challenge is, obviously enough, working out why this difference justifies not enforcing the drug and immigration laws in question.

Another option is to argue that the violation of moral rights suffices to warrant not enforcing a law and protecting rights warrants enforcing a law. The challenge is showing that the rights of the same-sex couples override Davis’ claim to a right to religious liberty and also showing the moral right to use certain drugs and to immigrate even when it is illegal to do so. These things can be done, but go beyond the scope of this essay.

My own view is that consistency requires the enforcement of laws. If the laws are such that they should not be enforced, then they need to be removed from the books. I do, however, recognize the legitimacy of civil disobedience in the face of laws that a person of informed conscience regards as unjust. But, as those who developed the theory of civil disobedience were well aware, there are consequences to such disobedience.

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Bulk Data Collection


A federal appeals court ruled in May, 2015 that the NSA’s bulk collection of domestic calling data is illegal. While such bulk data collection would strike many as blatantly unconstitutional, this matter has not been addressed, though that is perhaps just a matter of time. My intent is to address the general issue of bulk domestic data collection by the state in a principled way.

When it comes to the state (or, more accurately, the people who compose the state) using its compulsive force against its citizens, there are three main areas of concern: practicality, morality and legality. I will addressing this matter within the context of the state using its power to impose on the rights and liberties of the citizens for the purported purpose of protecting them. This is, of course, the stock problem of liberty versus security.

In the case of practicality, the main question is whether or not the law, policy or process is effective in achieving its goals. This, obviously, needs to be balanced against the practical costs in terms of such things as time and resources (such as money).

In the United States, this illegal bulk data collection has been going on for years. To date, there seems to be but one public claim of success involving the program, which certainly indicates that the program is not effective. When the cost of the program is considered, the level of failure is appalling.

In defense of the program, some proponents have claimed that there have been many successes, but these cannot be reported because they must be kept secret. In fairness, it is certainly worth considering that there have been such secret successes that must remain secret for security reasons. However, this defense can easily be countered.

In order to accept this alleged secret evidence, those making the claim that it exists would need to be trustworthy. However, those making the claim have a vested interest in this matter, which certainly lowers their credibility. To use an analogy, if I was receiving huge sums of money for a special teaching program and could only show one success, but said there were many secret successes, you would certainly be wise to be skeptical of my claims. There is also the fact that thanks to Snowden, it is known that the people involved have no compunctions about lying about this matter, which certainly lowers their credibility.

One obvious solution would be for credible, trusted people with security clearance to be provided with the secret evidence. These people could then speak in defense of the bulk data collection without mentioning the secret specifics. Of course, given that everyone knows about the bulk data collection, it is not clear what relevant secrets could remain that the public simply cannot know about (except, perhaps, the secret that the program does not work).

Given the available evidence, the reasonable conclusion is that the bulk data collection is ineffective. While it is possible that there is some secret evidence, there is no compelling reason to believe this claim, given the lack of credibility on the part of those making this claim. This alone would suffice as grounds for ceasing this wasteful and ineffective approach.

In the case of morality, there are two main stock approaches. The first is a utilitarian approach in which the harms of achieving the security are weighed against the benefits provided by the security. The basic idea is that the state is warranted in infringing on the rights and liberties of the citizens on the condition that the imposition is outweighed by the wellbeing gained by the citizens—either in terms of positive gains or harms avoided. This principle applies beyond matters of security. For example, people justify such things as government mandated health care and limits on soda sizes on the same grounds that others justify domestic spying: these things are supposed to protect citizens.

Bulk data collection is, obviously enough, an imposition on the moral right to privacy—though it could be argued that this harm is fairly minimal. There are, of course, also the practical costs in terms of resources that could be used elsewhere, such as in health care or other security programs. Weighing the one alleged success against these costs, it seems evident that the bulk data collection is immoral on utilitarian grounds—it does not do enough good to outweigh its moral cost.

Another stock approach to such matters is to forgo utilitarianism and argue the ethics in another manner, such as appealing to rights. In the case of bulk data collection, it can be argued that it violates the right to privacy and is thus wrong—its success or failure in practical terms is irrelevant. In the United States people often argue this way when it comes to gun rights—the right outweighs utilitarian considerations about the well-being of the public.

Rights are, of course, not absolute—everyone knows the example of how the right to free expression does not warrant slander or yelling “fire” in a crowded theater when there is no fire. So, it could be argued that the right of privacy can be imposed upon. Many stock arguments exist to justify such impositions and these typical rest either on utilitarian arguments or arguments showing that the right to privacy does not apply. For example, it is commonly argued that criminals lack a right to privacy in regards to their wicked deeds—that is, there is no moral right to secrecy in order to conceal immoral deeds. While these arguments can be used to morally justify collecting data from specific suspects, they do not seem to justify bulk data collection—unless it can be shown that all Americans have forfeited their right to privacy.

It would thus seem that the bulk data collection cannot be justified on moral grounds. As a general rule, I favor the view that there is a presumption in favor of the citizen: the state needs a moral justification to impose on the citizen and it should not be assumed the state has a right to act unless the citizen can prove differently. This is, obviously enough, analogous to the presumption of innocence in the American legal system.

In regards to the legality of the matter, the specific law in question has been addressed.  In terms of bulk data collection in general, the answer seems quite obvious. While I am obviously not a constitutional scholar, bulk data collection seems to be a clear and egregious violation of the 4th Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The easy and obvious counter is to point out that I, as I said, am not a constitutional scholar or even a lawyer. As such, my assessment of the 4th Amendment is lacking the needed professional authority. This is, of course, true—which is why this matter needs to be addressed by the Supreme Court.

In sum, there seems to be no practical, moral or legal justification for such bulk data collection by the state and hence it should not be permitted. This is my position as a philosopher and the 2016 Uncandidate.


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The Corruption of Academic Research

Synthetic insulin crystals synthesized using r...

Synthetic insulin crystals synthesized using recombinant DNA technology (Photo credit: Wikipedia)

STEM (Science, Technology, Engineering and Mathematics) fields are supposed to be the new darlings of the academy, so I was slightly surprised when I heard an NPR piece on how researchers are struggling for funding. After all, even the politicians devoted to cutting education funding have spoken glowingly of STEM. My own university recently split the venerable College of Arts & Sciences, presumably to allow more money to flow to STEM without risking that professors in the soft sciences and the humanities might inadvertently get some of the cash. As such I was somewhat curious about this problem, but mostly attributed it to a side-effect of the general trend of defunding public education. Then I read “Bad Science” by Llewellyn Hinkes-Jones. This article was originally published in issue 14, 2014 of Jacobin Magazine. I will focus on the ethical aspects of the matters Hinkes-Jones discussed in this article, which is centered on the Bayh-Dole Act.

The Bayh-Dole Act was passed in 1980 and was presented as having very laudable goals. Before the act was passed, universities were limited in regards to what they could do with the fruits of their scientific research. After the act was passes, schools could sell their patents or engage in exclusive licensing deals with private companies (that is, monopolies on the patents). Supporters asserted this act would be beneficial in three main ways. The first is that it would secure more private funding for universities because corporations would provide money in return for the patents or exclusive licenses. The second is that it would bring the power of the profit motive to public research: since researchers and schools could profit, they would be more motivated to engage in research. The third is that the private sector would be motivated to implement the research in the form of profitable products.

On the face of it, the act was a great success. Researchers at Columbia University patented the process of DNA cotransfrormation and added millions to the coffers of the school. A patent on recombinant DNA earned Stanford over $200 million. Companies, in turn, profited greatly. For example, researchers at the University of Utah created Myriad Genetics and took ownership of their patent on the BRCA1 and BRCA2 tests for breast cancer. The current cost of the test is $4,000 (in comparison a full sequencing of human DNA costs $1,000) and the company has a monopoly on the test.

Given these apparent benefits, it is easy enough to advance a utilitarian argument in favor of the act and its consequences. After all, if allows universities to fund their research and corporations to make profits, then its benefits would seem to be considerable, thus making it morally good. However, a proper calculation requires considering the harmful consequences of the act.

The first harm is that the current situation imposes a triple cost on the public. One cost is that the taxpayers fund the schools that conduct the research. The next is that thanks to the monopolies on patents the taxpayers have to pay whatever prices the companies wish to charge, such as the $4,000 for a test that should cost far less. In an actual free market there would be competition and lower prices—but what we have is a state controlled and regulated market. Ironically, those who are often crying the loudest against government regulation and for the value of competition are quite silent on this point.  The final cost of the three is that the corporations can typically write off their contributions on their taxes, thus leaving other taxpayers to pick up their slack. These costs seem to be clear harms and do much to offset the benefits—at least when looked at from the perspective of the whole society and not just focusing on those reaping the benefits.

The second harm is that, ironically, this system makes research more expensive. Since processes, strains of bacteria and many other things needed for research are protected by monopolistic patents the researchers who do not hold these patents have to pay to use them. The costs are usually quite high, so while the patent holders benefit, research in general suffers. In order to pay for these things, researchers need more funding, thus either imposing more cost on taxpayers or forcing them to turn to private funding (which will typically result in more monopolistic patents).

The third harm is the corruption of researchers. Researchers are literally paid to put their names on positive journal articles that advance the interests of corporations. They are also paid to promote drugs and other products while presenting themselves as researchers rather than paid promoters. If the researchers are not simply bought, the money is clearly a biasing factor. Since we are depending on these researchers to inform the public and policy makers about these products, this is clearly a problem and presents a clear danger to the public good.

A fourth harm is that even the honest researchers who have not been bought are under great pressure to produce “sexy science” that will attract grants and funding. While it has always been “publish or perish” in modern academics, the competition is even fiercer in the sciences now. As such, researchers are under great pressure to crank out publications. The effect has been rather negative as evidenced by the fact that the percentage of scientific articles retracted for fraud is ten times what it was in 1975. Once lauded studies and theories, such as those driving the pushing of antioxidants and omega-3, have been shown to be riddled with inaccuracies.  Far from driving advances in science, the act has served as an engine of corruption, fraud and bad science. This would be bad enough, but there is also the impact on a misled and misinformed public. I must admit that I fell for the antioxidant and omega-3 “research”—I modified my diet to include more antioxidants and omega-3. While this bad science does get debunked, the debunking takes a long time and most people never hear about it. For example, how many people know that the antioxidant and omega-3 “research” is flawed and how many still pop omega-3 “fish oil pills” and drink “antioxidant teas”?

A fifth harm is that universities have rushed to cash in on the research, driven by the success of the research schools that have managed to score with profitable patents. However, setting up research labs aimed at creating million dollar patents is incredibly expensive. In most cases the investment will not yield the hoped for returns, thus leaving many schools with considerable expenses and little revenue.

To help lower costs, schools have turned to employing adjuncts to do the teaching and research, thus creating a situation in which highly educated but very low-paid professionals are toiling away to secure millions for the star researchers, the administrators and their corporate benefactors. It is, in effect, sweat-shop science.

This also shows another dark side to the push for STEM: as the number of STEM graduates increase, the value of the degrees will decrease and wages for the workers will continue to fall. This is great for the elite, but terrible for those hoping that a STEM degree will mean a good job and a bright future.

These harms would seem to outweigh the alleged benefits of the act, thus indicating it is morally wrong. Naturally, it can be countered that the costs are worth it. After all, one might argue, the incredible advances in science since 1980 have been driven by the profit motive and this has been beneficial overall. Without the profit motive, the research might have been conducted, but most of the discoveries would have been left on the shelves. The easy and obvious response is to point to all the advances that occurred due to public university research prior to 1980 as well as the research that began before then and came to fruition.

While solving this problem is a complex matter, there seem to be some easy and obvious steps. The first would be to restore public funding of state schools. In the past, the publicly funded universities drove America’s worldwide dominance in research and helped fuel massive economic growth while also contributing to the public good. The second would be replacing the Bayh-Dole Act with an act that would allow universities to benefit from the research, but prevent the licensing monopolies that have proven so damaging. Naturally, this would not eliminate patents but would restore competition to what is supposed to be a competitive free market by eliminating the creation of monopolies from public university research. The folks who complain about the state regulating business and who praise the competitive free market will surely get behind this proposal.

It might also be objected that the inability to profit massively from research will be a disincentive. The easy and obvious reply is that people conduct research and teach with great passion for very little financial compensation. The folks that run universities and corporations know this—after all, they pay such people very little yet still often get exceptional work. True, there are some people who are solely motivated by profit—but those are typically the folks who are making the massive profit rather than doing the actual research and work that makes it all possible.


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Lawful Good

Paladin II

Paladin II (Photo credit: Wikipedia)

As I have written in other posts on alignments, it is often useful to look at the actual world in terms of the D&D alignment system. In this essay, I will look at the alignment that many players find the most annoying: lawful good (or, as some call it, “awful good”).

Pathfinder, which is a version of the D20 D&D system, presents the alignment as follows:

 A lawful good character believes in honor. A code or faith that she has unshakable belief in likely guides her. She would rather die than betray that faith, and the most extreme followers of this alignment are willing (sometimes even happy) to become martyrs.

A lawful good character at the extreme end of the lawful-chaotic spectrum can seem pitiless. She may become obsessive about delivering justice, thinking nothing of dedicating herself to chasing a wicked dragon across the world or pursuing a devil into Hell. She can come across as a taskmaster, bent upon her aims without swerving, and may see others who are less committed as weak. Though she may seem austere, even harsh, she is always consistent, working from her doctrine or faith. Hers is a world of order, and she obeys superiors and finds it almost impossible to believe there’s any bad in them. She may be more easily duped by such impostors, but in the end she will see justice is done—by her own hand if necessary.

In the fantasy worlds of role-playing games, the exemplar of the lawful good alignment is the paladin. Played properly, a paladin character is a paragon of virtue, a word of righteousness, a defender of the innocent and a pain in the party’s collective ass. This is because the paladin and, to a somewhat lesser extent, all lawful good characters are very strict about being good. They are usually quite willing to impose their goodness on the party, even when doing so means that the party must take more risks, do things the hard way, or give up some gain. For example, lawful good characters always insist on destroying unholy magical items, even when they could be cashed in for stacks of gold.

In terms of actual world moral theories, lawful good tends to closely match virtue theory: the objective is to be a paragon of virtue and all that entails. In actual game play, players tend to (knowingly or unknowingly) embrace the sort of deontology (rules based ethics) made famous by our good dead friend Immanuel Kant. On this sort of view, morality is about duty and obligations, the innate worth of people, and the need to take action because it is right (rather than expedient or prudent). Like Kant, lawful good types tend to be absolutists—there is one and only one correct solution to any moral problem and there are no exceptions. The lawful good types also tend to reject consequentialism—while the consequences of actions are not ignored (except by the most fanatical of the lawful good), what ultimately matters is whether the act is good in and of itself or not.

In the actual world, a significant number of people purport to be lawful good—that is, they claim to be devoted to honor, goodness, and order. Politicians, not surprisingly, often try to cast themselves, their causes and their countries in these terms. As might be suspected, most of those who purport to be good are endeavoring to deceive others or themselves—they mistake their prejudices for goodness and their love of power for a devotion to a just order. While those skilled at deceiving others are dangerous, those who have convinced themselves of their own goodness can be far more dangerous: they are willing to destroy all who oppose them for they believe that those people must be evil.

Fortunately, there are actually some lawful good types in the world. These are the people who sincerely work for just, fair and honorable systems of order, be they nations, legal systems, faiths or organizations. While they can seem a bit fanatical at times, they do not cross over into the evil that serves as a key component of true fanaticism.

Neutral good types tend to see the lawful good types as being too worried about order and obedience. The chaotic good types respect the goodness of the lawful good types, but find their obsession with hierarchy, order and rules oppressive. However, good creatures never willingly and knowingly seriously harm other good creatures. So, while a chaotic good person might be critical of a lawful good organization, she would not try to destroy it.

Chaotic evil types are the antithesis of the lawful good types and they are devoted enemies. The chaotic evil folks hate the order and goodness of the lawful good, although they certainly delight in destroying them.

Neutral evil types are opposed to the goodness of the lawful good, but can be adept at exploiting both the lawful and good aspects of the lawful good. Of course, the selfishly evil need to avoid exposure, since the good will not willingly suffer their presence.

Lawful evil types can often get along with the lawful good types in regards to the cause of order. Both types respect tradition, authority and order—although they do so for very different reasons. Lawful evil types often have compunctions that can make them seem to have some goodness and the lawful good are sometimes willing to see such compunctions as signs of the possibility of redemption. In general, the lawful good and lawful evil are most likely to be willing to work together at the societal level. For example, they might form an alliance against a chaotic evil threat to their nation. Inevitably, though, the lawful good and lawful evil must end up in conflict. Which is as it should be.


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Getting High for Higher Education

English: A domestic US propaganda poster circa...

English: A domestic US propaganda poster circa 2000. (Photo credit: Wikipedia)

Two major problems faced by the United States are the war on drugs and the problems of higher education. I will make an immodest proposal intended to address both problems.

In the case of higher education, one major problem is that the cost of education is exceeding the resources of an ever-growing number of Americans. One reason for this is that the decisions of America’s political and economic elites damaged the economy and contributed to the unrelenting extermination of the middle class. Another reason is a changing view of higher education: it has been cast as a private (rather than public) good and is seen by many of the elites as a realm to exploited for profit. Because of this, funding to public schools has been reduced and funding has been diverted from public schools to costly and ineffective for-profit schools. Yet another reason is that public universities have an ever-expanding administrative burden. Even the darling of academics, STEM, has seen significant cuts in support and public funding.

The war on drugs has imposed a massive cost on the United States. First, there is the cost of the resources devoted to policing citizens, trying them and incarcerating them for drug crimes. Second, there is the cost of the social and personal damage done to individuals and communities. Despite these huge costs, the war on drugs is being lost—mainly because “we have met the enemy and he is us.”

Fortunately, I have a solution to both problems. After speaking with an engineering student about Florida State’s various programs aimed at creating businesses, I heard a piece on NPR about the financial woes of schools and how faculty and staff were being pushed to be fund-raisers for schools. This got be thinking about ways universities could generate funding and I remembered a running joke from years ago. Back when universities started to get into the “businessification” mode, I joked with a running friend (hence a running joke) that we faculty members should become drug lords to fund our research and classes. While I do not think that I should actually become a drug lord, I propose that public universities in Florida (and elsewhere) get into the drug business.

To be specific, Florida should begin by legalizing marijuana and pass a general law allowing recreational drugs that can be shown to be as safe as tobacco and alcohol (that sets the bar nicely low). The main restriction will be that the drugs can only be produced and sold by public universities. All the profits will go directly to the universities, to be used as decided by boards composed of students and faculty.

To implement this plan, faculty and students will be actively involved. Business faculty and students will develop the models, plans and proposals. Design and marketing students and faculty will handle those aspects. Faculty and students in chemistry, biology and medicine will develop the drugs and endeavor to make them safer. Faculty and students in agriculture will see to the growing of the organic crops, starting with marijuana. Engineering students and faculty will develop hydroponics and other technology.

Once the marijuana and other drugs are available, the universities will sell the products to the public with all profits being used to fund the educational and research aspects of the universities. Since the schools are public universities, the drugs will be tax-free—there is no sense in incurring the extra cost of collecting taxes when the money is going to the schools already. Since schools already have brand marketing, this can be easily tied in. For example, Florida State can sell Seminole Gold and Seminole Garnet marijuana, while my own Florida A&M University can have Rattler Green and Rattler Orange.

One practical objection is that the operation might not be profitable. While this is obviously a reasonable concern, the drug trade seems to be massively profitable. Also, by making such drugs legal, the cost of the war on drugs will drop dramatically, thus freeing up resources for education and reducing the harms done to individuals and the community. So, I am not too worried about this.

One health objection is that drugs are unhealthy. The easy reply is that while this is true, we already tolerate very unhealthy products such as tobacco, alcohol, cars and firearms. If these are tolerable, then the drugs sold by the schools (which must be at least as safe as tobacco and alcohol) would also be tolerable. The war on drugs is also very unhealthy for individuals and society—so ending at least part of the war would be good for public health.

One moral objection is that drugs are immoral. There are three easy replies. The first is that the drugs in question are no more immoral than alcohol and tobacco. If these can be morally tolerated, then so can the university drugs. Second, there is the consequentialist argument: if drugs are going to be used anyway by Americans, it is better that the money go to education rather than ending up in the coffers of criminals, gangs, terrorists and the prison-industrial complex. Third, there is also the consequentialist argument that university produced drugs will be safer and of higher quality than drugs produced by drug lords, gangs, terrorists and criminal dealers. Given the good consequences of legalizing university-manufactured drugs, this plan is clearly morally commendable.

Given the above arguments, having universities as legal drug sellers would clearly help solve two of America’s most serious problems: the high cost of education and the higher cost of the ineffective and destructive war on drugs. As my contribution to the brand, I offer the slogan “get high for higher ed.”

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Chaotic Evil

the face of evil

the face of evil (Photo credit: Wikipedia)

As I have written in two other essays, the Dungeons & Dragons alignment system is surprisingly useful for categorizing people in the real world. In my previous two essays, I looked at lawful evil and neutral evil. This time I will look at chaotic evil.

In the realm of fantasy, players often encounter chaotic evil foes—these include many of the classic enemies ranging from the lowly goblin to the terrifyingly powerful demon lord. Chaotic evil foes are generally good choices for those who write adventures—no matter what alignment the party happens to be, no one has a problem with killing chaotic evil creatures. Most especially other chaotic evil creatures. Fortunately, chaotic evil is not as common in the actual world. In the game system, chaotic evil is defined as follows:

A chaotic evil character is driven entirely by her own anger and needs. She is thoughtless in her actions and acts on whims, regardless of the suffering it causes others.

In many ways, a chaotic evil character is pinned down by her inherent nature to be unpredictable. She is like a spreading fire, a coming storm, an untested sword blade. An extreme chaotic evil character tends to find similarly minded individuals to be with—not out of any need for company, but because there is a familiarity in this chaos, and she relishes the opportunity to be true to her nature with others who share that delight.

The chaotic evil person differs from the lawful evil person in regards to the matter of law. While they are both evil, the lawful evil person is committed to order, tradition and hierarchy. As such, lawful evil types can create, lead and live in organized states (and all states have lawful evil aspects). They can even get along with others—provided that doing so is required for the preservation of order. In contrast, chaotic evil types have no commitment to order, tradition or hierarchy. They can, of course, be compelled to act as if they do. For example, as long as the threat of punishment or death is close at hand, a chaotic evil type will obey those with greater power. Chaotic evil types do like order, tradition and hierarchy in the same way that arsonists like things that burn—without these things, the chaotic evil type would have that much less to destroy.

Lawful evil types do often find chaotic evil types useful for specific tasks, although those wise about evil are aware of the dangers of using such tools. For example, a well-organized terrorist group will tend to be lawful evil in regards to its leadership. However, such a group will find many uses for the chaotic evil types. A lawful evil type is generally not likely to strap on an explosive vest and run into a crowd, but a chaotic evil person might very well consider this to be a good way to go out. Lawful evil types also sometimes need people to create chaos so that they can then impose more order—the chaotic evil are just the people to bring in. But, as noted, the chaotic evil can get out of hand—they are not constrained by order or even rational selfishness. This is why the smart lawful evil types do their best to see to it that the chaotic evil types do not outlive their usefulness.

The chaotic evil person differs from the neutral evil person in regards to the matter of chaos. While the chaotic evil and neutral evil are both selfish and care nothing for others, the neutral evil person tends to be more rational and calculating in her selfishness. A neutral evil person can have excellent self-control and conceal her true nature in order to achieve her selfish and evil ends. Chaotic evil types lack that self-control and find it hard to conceal their true nature—that takes a discipline that the chaotic, by their nature, lack. The neutral evil see society as having instrumental value for them—but their selfishness means that they will take actions that can destroy society. The chaotic evil see no value in society other than as presenting a target rich environment for their evil. In our world, chaotic evil types tend to be those who commit horrific crimes or acts of terror.

While chaotic evil types are chaotic and evil, they often take up the mantle of some cause and purport to be acting for some greater good. However, their actions disprove their claims about their alleged commitment to anything good. They typically take up a religious or political cause to assuage whatever shreds of conscience they might still retain—or do so as part of their chaotic game.

In an orderly society that does not need the chaotic evil, smarter chaotic evil types try to hide from the authorities—though their nature drives them to commit crimes. Those that are less clever commit their misdeeds and are quickly caught. The cleverer might never be caught and become legends. Fortunately for the chaotic evil (and unfortunately for everyone else), they have plenty of opportunities to act on their alignment. There are always organizations that are happy to have them and there are always conflict areas where they can act in accord with their true natures—often with the support and blessings of the authority. In the end, though many are willing to make use of their morality, no one really wants the chaotic evil around.


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