Scott (and, by implication, Freddie) has put together a challenging retort to my arguments that most large-scale political protests are inevitably undermined by the unpreventable introduction of irrelevant issues into the protest and are thus exercises in futility.   At the risk of beating a dead horse, Scott’s riposte really deserves a full response.  Scott essentially concedes my basic point that the introduction of irrelevancies makes the protests incoherent to the general population.  BUT, he says, there is another part of protesting that maybe is served by carrying an Anti-Illegal Immigration sign to a government spending protest:

…[I]n some cases the lack of clarity in protest messaging could be indicative of a group of people who are grappling with the articulation of a future that is novel, bold, and sincerely innovative. One doesn’t always necessarily have a fully-formed image of the different state of affairs that one thinks ought to be the case and the act of trying to articulate that vision, building it as you go, is an important and worthwhile endeavour. That our political discourse only takes seriously, to ape on Freddie for a moment, those articulations that are perfectly put together and nicely packaged is part of its problem. Such requirements stifle real creativity and debate, more often than not.

Scott further argues that, at its root, protesting is about discouraging apathy, and whether the protesters stay on message misses that point:

There is something to be said for average citizens having the motivation and wherewithal to take to the streets to comment on what they perceive to be the wrong direction in which their country is generally headed.

There is, no doubt, quite a bit of truth in these statements.  Certainly, there is something healthy about a group of people willing to take to the streets to express their collective outrage.

But what if taking to the streets winds up increasing, rather than decreasing, apathy in society as a whole even as it creates a sense of a passionate united community amongst the faithful?  What if, indeed, it winds up destroying a nascent movement united on a single issue?  I think this is exactly what happens when more and more non-germane elements are introduced into a protest.

In the case of the Tea Parties, to quote myself, “I’m very much anti-spending orgy - passionately so, actually – but I’m not terribly interested in being so publicly if it means that I also have to be a Birther who opposes gay marriage, supports a strict closed-borders policy, and thinks that the Republicans are in some way less bad than the Democrats.”  For me, the introduction of all those non-germane elements has very distinctly and personally decreased my interest in opposing massive spending* because it inextricably links an opposition to government spending to all those other beliefs, which I actively do not want to see advanced. 

Similarly, Stephen Gordon (who I’ve quoted far too often this week) writes of what happened when more and more non-germane elements were introduced into the 2003 Alabama state Tea Parties:

The successful Tea Party in Alabama was the rallying point which turned into a major defeat of the largest tax hike (proposed by a Republican, no less) in our state’s history.  Some organizers tried to hold similar events in later years.  However, the rallying cries became more about issues like abortion and especially immigration.  Not surprisingly, the movement fell apart.

(My emphasis).

Nor is this a problem that is exclusively the province of protests on the political Right.  Liberal legal scholar Michael Dorf wrote in February of this same phenomenon:

…[T]he muddle one sees among activists on the American left is not principally a result of a large organized effort. Rather, it reflects a kind of parochialism that assumes that people who share some of your concerns share all of them….  As a vegan, a progressive, and a civil libertarian, I often encounter people who share my generally liberal/left views on some issues and therefore assume that I must also share their views on everything. This assumption is off-base even for people who share basic values and the same socio-economic-educational background, so of course it’s wildly off-base across larger divides.

So in a sense, yes, introducing all of these ideological assumptions is relevant to creating a community as Scott suggests, at least in the sense that “parochialism” is interchangeable with community.  The trouble is that by making these assumptions, which are implicit when one carries a Free Mumia sign to an anti-war protest or a pro-life sign to an anti-tax protest, one effectively defines people who don’t care about Mumia or who are pro-choice out of the community.  Obviously, the more someone is defined out of a community, the less willing they are going to be to remain part of that community. 

The result – and here I’m not talking just about protesters but about the assumptions implicit in unified ideologies more generally – is an increasingly apathetic population, or an increasingly “silent majority.”  These are people who may be against the Iraq War, or against domestic wiretapping, or increased government spending, and may even be people who have been willing to protest against these things, but whose willingness to express themselves has waned upon coming to the realization that doing so requires implicitly agreeing to all these other beliefs that you either don’t care about or simply don’t agree with the “official” community position. 

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First, since today is Good Friday, let me apoloize upfront for the disturbing nature of the case around which this post is built.  Unfortunately, it serves as a compelling follow-up to the enjoyable and (I hope) interesting discussion Will and I posted yesterday, and to the issue of judicial activism more generally. 

Over at Volokh, Prof. Kerr describes a case now pending before the Third Circuit and poses the question as to how much and whether simple human compassion should play a role in judicial decisionmaking.  Kerr summarizes the case thusly:

Pierre is from Haiti, and he was living lawfully in the U.S. as a permanent legal resident. Pierre is deeply troubled and has very violent tendencies, however. One night, he broke into the home of his ex-girlfriend and attempted to kill her. When a neighbor interrupted the attack, Pierre attempted to commit suicide by drinking a container of battery acid. His suicide attempt was unsuccessful, however: He lived, but his ingestion of the battery acid destroyed his ability to eat or drink normally. Pierre can survive only by receiving constant medical attetnion: He must be fed a liquid diet administered through a feeding tube.

  Pierre was convicted of attempted murder and served the mandatory 10 years of his 20-year sentence in a U.S. prison, where he received the medical care needed to keep him alive. After the mandatory 10 year sentence was up, the INS concluded that it was going to deport Pierre for having committed an aggravated felony.

  If Pierre is deported back to Haiti, he will be detained indefinitely in a Haitian prison. Haitian prisons are brutal. In particular, there are no medical facilities to feed Pierre and keep him alive. Haitian prisons just can’t provide Pierre with the medical care he needs. If Pierre is sent back to Haiti, he will almost certainly die of starvation in prison in a matter of days or at most weeks.

  Now let’s turn to the law. The only power a court has to stop the INS from removing Pierre in such circumstances is under the Convention Against Torture, as enacted into federal law by Pub. L. No. 105-227. Under the Convention Against Torture, courts must intervene in the removal if the individual can show that he is more likely than not to be tortured if sent to the proposed country of removal. Pierre’s argument is that the failure of Haitian authorities to provide him with adequate medical attention will be tantamount to torture — he will slowly and painfully starve to death — and therefore the court must block his removal.

Kerr then quotes what he says is apparently the only regulation at issue in the case.  So far as I can tell, the only conceivable interpretation of the regulation is that the court may bar deportation only if it finds that Haitian officials will more likely than not have the specific intent of killing Pierre as punishment for his past crimes.  Unless there are substantially more facts to this than Kerr has described, such a finding is almost impossible because Pierre’s death will almost certainly be a simple result of the fact that Haiti lacks the resources to provide the care necessary to keep him alive, not because Haiti wants to execute him as punishment. 

Surely, under these facts, you could not say that the drafters of the Convention against Torture intended that the INS be permitted to deport Pierre.  Since they were human, it’s probably even safe to say that the people who drafted the deportation statute didn’t intend for someone in Pierre’s situation to get deported.  The problem is that the rules did not appear to contemplate such an instance, and thus failed to create an exception to it. 

Moreover, under these facts, it’s safe to say that the “popular” decision would be to permit Pierre to remain incarcerated in the US for another 10 years, at the very least.  Yet the almost-certainly correct decision in this case is to permit Pierre’s deportation, with the full knowledge that it will amount to a rapid death sentence after he has already become eligible for parole. 

Obviously, the “activist” decision here is to do the “popular” and “moral” thing and read into the statute an unprecedented meaning for the word “intentionally.”  The textually – and, I believe, legally – correct decision is to permit the deportation, even though it is a death sentence far more rapid than Pierre would have gotten had he committed capital murder in just about any state outside of Texas.  If the Court chooses the former approach, though, how many people could blame them?  I couldn’t – even though I firmly think that it should and will take the latter approach.

The thing is, these are the cases that you rarely hear about, but which judges have to deal with far more often than controversial social issues.  Presidents,governors, and legislators get to make policy in a bubble where they can pick and choose the facts they listen to, the people they encounter, and the voters to whom they pander.  They do not have to deal with the effects of the policies they set forth, at least not unless they want to.  Judges, however, have to deal with the effects of those policies every day, and have remarkably few tools to change those effects.  Yet it is they who are called “tyrants” who have an agenda to “usurp the will of the people.”

Note – Will and I exchanged a few emails on judicial activism, cultural change, and the courts’ public legitimacy in the wake of the Iowa gay marriage ruling. We’ve published an edited version below:

Will: I’ve enjoyed your and Dave’s posts on originalism – are you familiar with Rosenberg’s “hollow hope” argument against court-instigated progressive change? In a nutshell, Rosenberg argues that the courts are a bad forum for progressive change because they a) frequently incite cultural backlash, b) defuse efforts aimed at legislative and cultural change and c) are generally inhospitable to grassroots activism.

Mark: Sully linked to this piece from Prof. Volokh that I think serves as a very nice linkage between my point on judicial activism and Rosenberg’s empirical argument on judicial capacity for creating change (though not his normative argument). Volokh’s argument is that the Iowa legislature’s decision to include sexuality in its anti-discrimination laws initiated a “slippery slope” by creating an analogue for the Iowa Supreme Court to apply in determining whether the prohibition on SSM violated Equal Protection. Assuming Prof. Volokh is correct, this suggests the following:

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