But there is an even better reason to reject the “mistake of law” defense. Put simply, it waters down the moral authority of the law to suggest that it should be contingent upon the subjective perceptions or feelings of the individual perpetrator. The law must be greater than ourselves if it is to hold us in check.
Proponents of gay marriage fail utterly to comprehend the idea that laws are made with society, not the individual, in mind. That is why they also fail to grasp the idea that law is predicated upon averages, not outliers. Interestingly, both libertarians and progressives suffer from this lack of understanding.
The government has an interest in recognizing a traditional marriage between a man and a woman, simply because it has an interest in seeing couples reproduce and then care for their young children. While traditional marriage is good for children, gay marriage is not. Any assertion to the contrary requires willful blindness toward the manner in which gay couples typically live—particularly gay males, who are notoriously promiscuous and unfaithful to one another.
Progressives sometimes directly attack the assertion that the government has a compelling interest in promoting marriage as an institution that is good for children. After all, they want the state to raise everyone’s children. Remember “It takes a village”?
But more often they try to undermine the link between marriage and childrearing by pointing to outliers—marriages in which couples choose not to have children or cannot have them because at least one partner happens to be infertile. But this argument only reveals the weakness of the progressive understanding of the law. Put simply, rules that are justified by the average case cannot be undermined by the exceptional case, otherwise known as the outlier. Thus the old maxim, “Hard cases make bad law.”
When the United States Supreme Court first took on a challenge to traditional marriage, there was little difficulty resolving the issue. The case, Reynolds v. U.S. (1879), involved a Mormon citizen convicted under a federal law prohibiting bigamy. Some familiarity with the origins of the Mormon religion is helpful in understanding the rationale behind the Court’s decision.
In the nineteenth century, Joseph Smith claimed to have been led (by the angel Moroni) to a set of tablets he would later transcribe into the Book of Mormon. Smith practiced polygamy—marrying over thirty wives in the course of his lifetime—and he established that practice among men subscribing to the Mormon faith. By the time Reynolds was arrested and convicted of bigamy, the Mormon religion was only a few decades old. In contrast, courts had been recognizing marriage as a union between one man and one woman for many centuries.
Clearly, Reynolds was not a victim of religious discrimination since the restriction of marriage to two persons of the opposite sex predated the birth of his religion. His legal arguments failed, and the Mormon practice of polygamy died along with his court case. Being good citizens, the Mormon minority conformed to the will of the majority.
The present political battle over gay marriage is not characterized by a serious discussion of the ramifications of abandoning the traditional definition of marriage. Logically, if we allow for gay marriage we must also allow for polygamous and even incestuous marriages. Remember that the argument used to rebut Reynolds’s claim of a right to have multiple wives was that society had long been ordered around a specific and narrow definition of marriage. That argument goes out the window once gay marriage is granted legal recognition.
Imagine for a moment that you are back in the schoolyard as a child in elementary school. It is the first day of a new school year at a new school, and you know none of your classmates. You are named one of two captains in charge of selecting a team to play basketball. If you have any intelligence, you will do your best to pick your tallest classmates, leaving the shorter students to be selected by the opposing captain.
If you can succeed in getting all the taller players, you will win the game. Sure, a couple of the shorter players on the other team could be better than some of your taller players. Those are the outliers, and their existence in no way undermines the rule that taller people are, on average, better at basketball than shorter people.
Your rule of selecting people on the basis of height is an imperfect rule, but it produces the desired result. Only a fool would abandon a winning rule simply because it is not always perfect. Unfortunately, many progressives are also fools.
The government’s decision to recognize only unions between a man and a woman has served society very well for a very long time. It may not be a flawless rule, but it has produced the desired results. It civilizes men, it protects women, and it provides a healthy and stable environment for raising children. It performs all of these functions better than any other available option.
Put simply, advocates of gay marriage must understand that our laws are based on averages, not outliers. We lean upon marriage as a cornerstone of our civilization. Some may deem a narrow definition of marriage offensive to their perceptions of fairness and equality. But same-sex unions are not on average equal. Nor are perceptions an adequate basis for law.
Ignorance of the law has long been considered an inadequate legal defense. But ignorance of the basic function of laws is still fashionable in progressive circles.
LETTER 13
Liberals N the Hood
Dear Zach,
Last week I wrote to you about gay marriage and our legal system. Today I’d like continue the discussion of legal issues, but focus on crime—and the failures of progressive thought on that subject.
When I first became a professor in 1993, I used to show my students a film called Boyz N the Hood. My motivation for showing the movie was that I thought it explained the origins of crime and delinquency in a fair and accurate way. The film fleshes out three different progressive theories of crime and delinquency that have achieved great popularity in academic circles and illustrates how they are supposed to operate in the real world. But now I can see that it also illustrates—though less clearly—a conservative theory of delinquency as well, a theory that is not so popular among criminology professors.
The oldest of the theories, called “strain theory,” was popularized in the 1930s. The idea behind this theory is that society imbues all of its citizens with the desire to obtain material things. That much is hard to deny, given our national social emphasis on material wealth and personal success.
The problem, according to the strain theorist, is that society is not structured in such a way as to provide opportunities for everyone to achieve the personal wealth and success that everyone has been inspired to seek. The result of the discrepancy between a) what “society” encourages us to seek and b) what “society” allows us to have is called “social strain.”
According to the theory, the more “social strain” we experience, the greater our criminal involvement. So crime should be blamed on a lack of legitimate opportunities for success among the poor. Illustrations of the theory are numerous in the movie Boyz N the Hood.
Anyone familiar with the movie recalls the character Ricky, the maternal half-brother of “Doughboy.” Ricky is the only one who appears to have access to a legitimate escape route from life in South Central Los Angeles. He is a talented football player and is recruited by top schools such as the University of Southern California. Indeed, the movie makes the point that getting out of the ghetto is difficult and that playing sports is seen as the only path out for many young African Americans. The movie also shows how unrealistic that path is for the average black male.
In contrast, South Central Los Angeles provides a wealth of illegitimate opportunities for success among young African American males. The presence of junkyards in every neighborhood and pawnshops on every street corner cannot easily be ignored. Nor can one ignore their effects on the crime rate. Junkyard owners buy stolen cars without asking questions. Pawnshop owners buy stolen jewelry without asking questions—and there’s a great deal of burglary and motor vehicle theft in the hood. And don’t forget about the liquor store on the corner. Th
at is where the crime profits are often spent. But the money doesn’t stay in the hood because the liquor store’s owner usually isn’t black.
Another major theory on prominent display in the movie is commonly known as “labeling theory.” In recent years, it has become very popular in advancing liberal educational policy. But its origins are in criminology. The basic idea behind the theory is rather simple: if you label a person as “delinquent” or “criminal” then you markedly increase his chances of actually becoming delinquent or criminal.
If you think about your experiences growing up, you may conclude labeling theory has some validity. And if you just think back to the psychology class you had last semester, it may remind you of the concept of the “self-fulfilling prophecy.”
When someone gets into trouble with the law once, he is likely to fall under greater scrutiny in the future. That means he is more likely to get caught the next time he does something wrong. Eventually, people stop just labeling the repeat offender’s behavior as bad and start to refer to the offender himself as bad—or criminal, or delinquent, or any of a number of negative labels. This eventually damages his self-esteem and creates the conditions necessary for the self-fulfilling prophecy.
The best example of labeling theory in Boyz N the Hood is the contrasting ways maternal half-brothers Ricky and Doughboy are raised. The boys have different fathers but are raised by the same mother, who obviously had a better relationship with Ricky’s father than she did with Doughboy’s father. The mother clearly considers Doughboy doomed to failure because he inherited the genes of a man whom she despises. What she fails to see is that it is her different treatment of the two boys that causes their behavior to move in different directions. The movie tries to illustrate that environmental factor, and it actually does a good job of it.
In the film, Doughboy reacts to the harsh treatment from his mother with rebellion. He is also keenly aware that his mother favors his half-brother Ricky. Whenever something goes wrong, Doughboy is presumed guilty until proven innocent. He is simply never rewarded for doing anything positive. He is also punished for wrongdoing-regardless of whether it was his fault. He has low self-esteem and no incentive to conform, and his life holds little promise.
The final progressive theory of crime advanced in Boyz N the Hood is “differential association theory,” according to which we are all surrounded by both pro-criminal and pro-conformist influences in our lives. When pro-criminal influences outweigh pro-conformist influences, criminality is the likely result.
Differential association theory recognizes that relationships are an important influence on our lives—especially when it comes to the propensity to commit crime. But our relationships are varied and complex. Differential association theorists talk about four distinct ways those relationships vary in terms of their influence on our criminal tendencies:1. Frequency Put simply, the more often we spend time with people, the more likely they are to influence our behavior.
2. Duration. The longer we know people, the more likely they are to influence our behavior.
3. Priority Relationships established early in life tend to have greater influence on us than those established later in life.
4. Intensity Relationships that have greater emotional intensity tend to carry more weight with people and, therefore, exert a greater influence on their behavior.
Differential association theory in criminology is quite similar to social learning theory in psychology. The social learning theorist would agree that one who is exposed to more pro-delinquent influences than anti-delinquent influences would be more likely to engage in criminal activity. The social learning theorist would also agree that peer pressure is an important part of the social learning process. Clearly, peers you encounter frequently and have known for a long time will have a great influence on your behavior. Also, if you formed the peer relationship early in life, it will influence you greatly—particularly if there is a strong emotional component to the relationship.
All of these factors are on display in the movie Boyz N the Hood—particularly in the character Doughboy. He is exposed to heavy doses of pro-criminal influence growing up in the hood. Such influence is only compounded when he goes to prison. When he gets out, he falls back into the old influences that predated his criminal involvement. He is surrounded by very bad people who have been a part of his life for a very long time. And he is very close to those who helped lead him down a path of self-destruction in the first place.
But not all theories of crime are liberal ones that assume people are inherently good until they are corrupted by bad society. “Control theory” is conservative in the sense that it assumes the worst about human nature and asserts that criminal impulses can be controlled by certain positive influences. Control theory is also featured in Boyz N the Hood—although less prominently than the progressive theories.
Control theorists believe that explaining crime is not the main task of the criminologist. Since they consider humans to be predisposed toward crime, the focus of control theorists is actually on explaining law-abiding behavior. They ask the following question: How do bad people keep from doing bad things? Control theory offers a four-fold answer:1. Attachment. One way the criminal impulse can be controlled is through guilt. If a young person is attached to a parent—or to a teacher or to some other role model—then he will be less likely to commit crime. The youth knows that the transgression will cause the loved one to disapprove of him, so he conforms. In Boyz N the Hood, Tre’s attachment to his father keeps him out of a good deal of trouble.
2. Belief. In addition to external controls on behavior, there must also be internal moral controls. Tre’s dad spends a lot of time with his son teaching him right from wrong—something few of the other characters in the film experience. Therefore, Tre actually has a positive and pro-social belief system.
3. Involvement. This is just a restatement of the old maxim, “Idle hands are the devil’s workshop.” Put simply, one cannot commit crime while involved in constructive, conformist activities. As soon as Tre’s mother drops him off at his father’s house (the parents have joint custody), he is assigned various time-consuming chores. While the other kids are off getting into trouble, Tre is raking the yard or otherwise involved in constructive activity.
4. Commitment. Tre’s father is not the only positive influence in his life. His mother is also a good role model. She is educated and intelligent. She teaches Tre the value of education. Because he does well in school, he is afraid to jeopardize his academic future by getting involved in delinquency.
In the final analysis, Boyz N the Hood bears a greater resemblance to the field of criminology than it does to the world of reality. For every conservative explanation of crime, there are at least three liberal explanations of crime. But in real life it’s a different story. The liberal theories of delinquency perform poorly when tested scientifically. In fact, there is probably no other academic discipline that does as poor a job of explaining phenomena over which it claims jurisdiction or expertise as criminology.
When the left-wing theories are actually subjected to empirical analysis, they rarely succeed in explaining over 10 percent of the variation in criminal conduct. To put that in plain English, criminologists often survey people about their involvement in crime. There is a lot of variation in self-reported criminal conduct from one person to the next. Liberal or progressive theorists—proponents of strain, labeling, or differential association—consider themselves successful if they explain 10 percent of that variation in self-reported criminal conduct.
But explaining only 10 percent of the variation in criminal conduct means that 90 percent of the variation remains unexplained. So what do criminologists do with the unexplained variance?
Zach, let’s take a step back for just a second. Remember the concept of unexplained variance, from our discussion of studies of racial disparity in the criminal justice system? In the race studies I mentioned before, criminologists assumed that any variance not explained b
y legal factors could be attributed to racial discrimination—even when racial discrimination was not measured. In other words, unexplained variance equals racism.
If progressives can arbitrarily attribute to racism all of the unexplained variance in sentencing between the races, then what stops us from attributing all the unexplained variance in self-reported criminal behavior to free will? If a progressive theory like labeling is only able to explain 10 percent of the variance in self-reported criminal conduct, then the researcher has only shown that 10 percent of the behavior is determined by the theory. If no other theory is specified, then isn’t it fair to say that 90 percent of the variance in self-reported criminal conduct is undetermined? Isn’t that just another way of saying that 90 percent of the variance isn’t determined by anything? Why not just assume that unexplained variance equals free will?
In the field of criminology, the things criminologists cannot explain are often attributed to racism because that absolves man of personal responsibility. He is seen as a mere victim of his environment. And when criminologists examine man’s own self-confessed criminal conduct, the things he (the criminologist) cannot explain are never attributed to free will. To do so would make the man responsible for his own conduct. Such conclusions are simply not allowed in the field of criminology, any more than they are allowed in the world of Hollywood film producers.
In the so-called social sciences, everything is a show. It is always a three-act play directed by progressive thinking. In the first act, man is born innocent. In the second act, man is corrupted by “society.” In the third act, the progressive saves him.
Letters to a Young Progressive: How to Avoid Wasting Your Life Protesting Things You Don't Understand Page 6
