Some Validation on War and Religion

A while back I wrote a review of Fields of Blood, Karen Armstrong’s lengthy (if shallow) tome about the history of war and religion. There, I wrote this:

Third, and most troubling for the entire book, is Armstrong wants to view religion’s role in violence as simply as the critics to which she is responding. If it’s not THE cause, she seems to argue, it is exonerated. She ignores (or breezes right past) the role religion can play in making killing of the other guy all right, even if the underlying cause isn’t religious. The American Civil War is an example of a war that was purely political, but both sides thought they were doing God’s work. Ever listened to the ‘Battle Hymn of the Republic’? It’s all about how righteous the Union cause was.

I normally wouldn’t bring something like that back up just for fun, but a recent article in The Atlantic backs me up on this, so I thought I’d pass it along.

Allen Guelzo looks at the issue of religion on the Civil War, using a pair of new books as a jumping off point. While he’s ultimately more interested in what the war did to religion (created a bunch of new skeptics), along the way he discusses a new book by Harvard’ Drew Faust about how religion fueled the war, on both sides:

Above all, it was a time when Christianity allied itself, in the most unambiguous and unconditional fashion, to the actual waging of a war. In 1775, American soldiers sang Yankee Doodle; in 1861, it was Glory, glory, hallelujah! As Stout argues, the Civil War ‘would require not only a war of troops and armaments … it would have to be augmented by moral and spiritual arguments that could steel millions of men to the bloody business of killing one another…’ Stout concentrates on describing how Northerners, in particular, were bloated with this certainty. By ‘presenting the Union in absolutist moral terms,’ Northerners gave themselves permission to wage a war of holy devastation. ‘Southerners must be made to feel that this was a real war,’ explained Colonel James Montgomery, a one-time ally of John Brown, ‘and that they were to be swept away by the hand of God, like the Jews of old.’ Or at least offered no alternative but unconditional surrender. ‘The Southern States,’ declared Henry Ward Beecher shortly after Abraham Lincoln’s election to the presidency, ‘have organized society around a rotten core,—slavery,’ while the ‘north has organized society about a vital heart, —liberty.’ Across that divide, ‘God is calling to the nations.’ And he is telling the American nation in particular that, ‘compromise is a most pernicious sham.’

But Southern preachers and theologians chimed in with fully as much fervor, in claiming that God was on their side. A writer for the Southern quarterly, DeBow’s Review, insisted that since ‘the institution of slavery accords with the injunctions and morality of the Bible,’ the Confederate nation could therefore expect a divine blessing ‘in this great struggle.’ The aged Episcopal bishop of Virginia, Richard Meade, gave Robert E. Lee his dying blessing: ‘You are engaged in a holy cause.’

The problem, of course, is that once you have God on your side, the other side isn’t just wrong or dangerous, they’re downright Satanic. It makes it more difficult to view the conflict in realistic, practical terms. As Guelzo puts it, “Holy causes that can never be overcome do not make provision for surrender.”

Which is where Armstrong went so wrong. Warfare is evil, even if it’s sometimes a necessary evil. Dragging religion into it, even if only to bulk up your side’s morale, doesn’t help matters and almost certainly is going to make things worse.

The Other Side of Jury Nullification

I haven’t talked a lot about law on this blog, but I did at my old one. Here’s a post on jury nullification that I thought I’d bring back in light of this interesting discussion over at The Volokh Conspiracy.

Jury nullification is back in the news, thanks to a heavy handed (and most likely unconstitutional) prosecution in New York.  The local US Attorney has charged a 78-year-old man with jury tampering because:

Since 2009, Mr. Heicklen has stood there and at courthouse entrances elsewhere and handed out pamphlets encouraging jurors to ignore the law if they disagree with it, and to render verdicts based on conscience.

That concept, called jury nullification, is highly controversial, and courts are hostile to it. But federal prosecutors have now taken the unusual step of having Mr. Heicklen indicted on a charge that his distributing of such pamphlets at the courthouse entrance violates a law against jury tampering.

Eugene Volokh does a good job of analysing the First Amendment issues with the prosecution, but I’m more interested in the underlying issue of jury nullification.

Jury nullification really isn’t a thing in and of itself.  It’s more a side effect of the prohibition against double jeopardy in the Fifth Amendment.  When a jury acquits a defendant at trial, that’s the end of it.  The prosecution cannot seek appellate review of the verdict.  By contrast, a defendant can challenged the sufficiency of the evidence on appeal, although (as I’ve explained before) there’s little chance of success.

The upshot of that setup is that a jury can return a not guilty verdict for any reason it wants, from the state’s failure to prove its case to the jury’s disgust at the law being enforced.  Those of the libertarian/people power persuasion see jury nullification as an unfettered good, a way for the people to check the power of the state when it comes to unpopular laws or discriminatory applications of otherwise popular laws.

That’s all fine and dandy, in theory, but it strikes me as naive in practice.  After all, if we tell jurors to “render verdicts based on conscience” there’s no principle that limits it to acquittals.  Judges routinely instruct jurors both to ignore evidence that comes out in court and instructs them about the burden of proof and other legal issues.  If they are free to disregard what the judge says, it could lead to all kinds of problems.

Maybe I’m just cynical, but from my experience it doesn’t look like jurors give the weight they should to the judge’s instructions in most cases. My completely unscientific conclusion is that the presumption of innocence and beyond-a-reasonable-doubt standard exist largely on paper at this point, not in the minds of actual jurors.  As a result, we already teeter dangerously close to a criminal justice system that makes convictions of innocent people too easy.  Any program that exacerbates that state of play can’t be altogether good.

Jury nullification has a long and storied history in this country, dating back at least to the libel trial of John Peter Zenger in 1733.  But that was a different era, one in which the basics of the law was much more in the grasp of potential jurors.  In the modern era, I’m not so sure that telling jurors they can and should go rouge won’t lead to more harm than good.  At the very least, it’s a problem that jury nullification advocates need to face head on.

And they’ll have to do better than some of the commentators to this article about the case over at Reason.  Asked to distinguish between jurors who acquit because they view the law as unjust and jurors who acquit for less lofty reasons (i.e., an all-white jury acquitting a Klansman who killed a black guy), the best they can do is a variant on the No True Scotsman fallacy – the second example isn’t “really” jury nullification.  Sadly, it produces the same result, so any theoretical distinction is moot.  In any case, further informing jurors that they can do whatever the hell they want would encourage bigotry and bias as much as more principled decisions.

NOTE: This post was originally published on February 28, 2011.

Ideas Are Everywhere

One question that writers, and other creative types (I’m assuming), routinely get asked is “where do you get your ideas?” For some reason many writers find this frustrating. I suspect that’s not because the question itself is annoying, but because the answer so rarely satisfies the person asking it. The fact is that there are no muses who whisper in the ears of writers, nor do words generally flow out without effort. Writing, like most creative endeavors, is hard work. For laypersons, it takes a bit of a shine off the process, I imagine.

But in reality, it makes the question of inspiration all the more interesting, because it can come from anywhere. Allow me to provide a recent example.

My office is in the market for a new lawyer and we’ve interviewed several candidates over the past few weeks. One applicant who was in private practice was explaining the size and scope of their firm and mentioned that, in addition to offices in several large cities there was “one guy up in Alaska.” It was hyperbole, no doubt (and good for a laugh), but it put the idea in my head of a solitary lawyer toiling away in the wilds of Alaska. What sent them there? Was it where the firm misfits went? Was it the shit assignment you had to go through to make partner.

Of course, I write speculative fiction and don’t (generally) write about lawyers. I turned the idea over in my head for a few days and started writing. Alaska became a rock in space called Orsini and the law firm became “the company,” but the central question – what would send a person all the way out there? – remains (and gets answered). It’s got the working title “Retirement Party,” but the more I live with that the less I like it. Hopefully it’ll see the light of day in a little while.

That’s only one example. Inspiration really is everywhere – it’s up to you to do something with it when it tickles that part of your brain that makes you ask “what if?” or wonder “why?”

Like I said – the hard part’s taking the inspiration is doing something with the idea once you get it. So let me get back to it . . .

What Does “Being a Democracy” Mean, Anyway?

We tend to think of types of governments in stark terms. A democracy means a nation run by the consent of the governed, right? But how does that work in the real world?

David Frum had a column in The Atlantic recently wondering what the world might have been like had the Allies lost World War I. It’s less an interesting experiment in alternate history than another facile argument for further American intervention in the Middle East, but he does kind of stumble into an interesting question when he unpacks Woodrow Wilson’s claim that the “world must be made safe for democracy”:

Not ‘democratic’ – ‘safe for democracy.’ Wilson wasn’t promising to impose democracy on Imperial Germany. He was promising to defend democracy from Imperial Germany. The First World War had not begun as a conflict between democracy and authoritarianism. Great Britain was not a democracy in August 1914. Tsarist Russia certainly was not. Ditto Japan, Italy, and Romania—all fought for the Entente, none had governments elected by more than a small fraction of the population. Even in France, the most democratic of the original Allies, elected leaders did not fully control the government (never mind that the Third Republic ruled over a vast colonial empire and denied the vote to women).

Of course, that description is equally true of the United States at the time, which disenfranchised most folks that were adult white men. Nonetheless, if someone’s voting on who runs the place, isn’t that democracy? It’s a far sight more democratic than a monarch who rules because God says so (or “some watery tart lobbed a sword at you”) or a dictator who holds power by sheer force. What’s the tipping point?

And if there is a tipping point, do any modern societies actually meet it? After all, “universal” suffrage isn’t truly universal. Most countries, at least, restrict the franchise to citizens and to those of a certain age. But the young and the alien (assume, for purposes of this argument, legal and fully documented) are subject to the authority of the government just as much as anybody else – does cutting them out of things make the system less “democratic?” What then of places where felons or the mentally infirm are banned from voting, sometimes for life?

Beyond those restrictions there’s the very real question of apathy. If, as Frum posits, most of our allies in World War I weren’t democracies because only a “small fraction” of the population could vote, what of when only a small fraction of eligible voters actually bother to participate? Only 58.2% of eligible voters cast ballots in the last US presidential election. Put another way, just over 129 million people cast votes – in a country with a population north of 320 million. When only 40% of the governed people vote, is that really a “democracy” under Frum’s test?

And that’s just the presidential election, which tends to attract higher turnouts. What percentage of the governed populace is actually voting in races further down the ballot? As a for instance, 453,659 West Virginians voted in the 2014 election that sent Shelly Moore Capito to the US Senate, out of a population of over 1.8 million. In other words, about a quarter of the state’s population voted in that election. Is that truly “democratic”?

Obviously, a lot of this is pure semantics and the political science equivalent of figuring out the right dance steps for angels on pin heads, but there’s more to it than that. We often do our worst when we’re motivated by the mythology we’ve built around ourselves. Confronting reality might make us think twice about going off half-cocked on various crusades.

In other words, if we’re going to lecture the rest of the world about the values of democracy, we better damned well make sure we’re practicing them ourselves.