Got to, man. It's America

My older son, who is now a teacher, listened to my rant about the Bong Hits for Jesus case and responded: "Actually, adolescents are, or frequently can be, asses. This is not a case of political protest. This kid is not a black student sitting in at a whites only lunch counter. This is not a protest against a war, or even a protest against making a benign drug illegal. It's just a kid trying to get his face on TV.
"We had a kid in my physics class who would raise his hand and ask the teacher, 'Do you believe in free will?' And he'd continue to raise his hand with stuff like that until the teacher finally said, 'Shut up. This is a class where I'm trying to teach quantum mechanics, not metaphysics.' This kid eventually filed his teeth, went out into the desert and did mescaline with Native Americans. He was a pain and he would have, if you let him, made it impossible for anyone in that class to learn anything."

This resonates with, but does not exonerate, Justice Thomas's opinion.

What it does do is it makes me realize this Bong Hits case may not be the best example of what makes the Supreme Court so problematic.

My basic point, that you can predict how each of these justices will vote by knowing their prejudices, that you can see these learned scholars work their way back to the position they knew they were going to take by listening to a 3 sentence synopsis of the case, is, I believe, still true.

On the other hand, my first son, who got me to read more patiently each of the opinions, did teach me something. And that something is this: When you actually read the individual arguments, it is remarkable to see the unexpected sensitivities, at least in some of the justices. Alito, in particular, surprised me by agonizing over the issue of suppressing dissenting speech.

And these remarks could guide behavior, if teachers or principals ever read them.

I do understand now something which had eluded me: If this student had frankly taken a position about a school policy, a government policy, against outlawing marijuana, for the environment, against the war in Afghanistan, then the court may well have voted for him, (although not Thomas) or at least the conservative justices would have had to really show their authoritarian colors, but the facts of this case make this kid simply a clown, and the Constitution does not protect the clown.

On, the other hand, I was reminded of the very first scene of The Wire. Detective McNulty is sitting on a porch with a local Black kid and they are looking at the body of Snotboggie, who is lying in a pool of his own blood, dead. He has been shot because he scooped up the pile of cash at a crap game and tried to run away with it. Turns out, Snotboggie did that every time he played. He'd let the pile of cash build up, and once it was big enough, he'd scoop it up and run. Usually, the other players caught him and beat him senseless, but this time, somebody shot him in the head.

"I got to ask you," McNulty says. "If Snotboggie always stole the pot, why'd you even let him play?"
"Huh?"
"Well, you say, he always ended the game by running off with the money. So, if you knew he was going to do that, why'd you even let him in the game, in the first place?
"Got to," the kid on the stoop says. "This America, man."
In a sense, that was my reaction to the Bong Hits For Jesus thing. You have to let him do the stupid thing. Then you can punish him. But you don't shoot him in the head.
You let that banner wave, then you call him in to your office and you question him about what he was protesting about, and if he's just a clown, you suspend him. Or you can suspend him for being late for his office appointment.
But you don't say you cannot even voice an opinion.
In this case, the question is whether or not he even voiced an opinion.
There are better examples of the Supreme Court kiling the First Amendment: When Eugene Debbs was convicted for violating the Espionage Act of 1917, which forbade public expressions of opinion against the First World War and the Draft to support it, that's when Oliver Wendel Holmes said there are limits to free speech, and gave the example of "You can't shout Fire in a Crowded Theater." But the analogy was misleading. Debbs had stood outside that theater and shouted there were no fire exits, don't go in. He was saving lives, not putting them at risk.
I suppose the better case to examine would be the United case in which a corporation is defined as a person, imbued with the same inalienable rights. There, free speech is protected by a Supreme Court determined to keep the rich and powerful firmly in control of the government and the national discourse, but that's just my impression. I haven't read through the opinions yet.
Stay tuned.

Justice Denied: Bong Hits

I love Justice Stevens. I really do. But his dissent in the Bong Hits case is disappointing.

He says he agrees with the Principal's action in tearing down a 14 foot student banner, "Even if it had merely proclaimed, 'Glaciers Melt.'"

In this, he is with Justice Breyer, that action of pulling down an expression of dissent is justifiable in the name of maintaining order and keeping the students from becoming disruptive. So he is with the principle of Qualified Immunity."

He agrees students in school do not have the rights of adults.

He agrees that deterring drug use by schoolchildren is a valid and terribly important interest.

Of course, he does not address the issues of whether or not what is said in school, for or against drugs has any real effect on students' attitudes.

What he argues is the easy way out--a true but less important argument. "That the school may suppress student speech that was never meant to persuade anyone to do anything...This nonsense banner does neither, and the court does serious violence to the First Amendment in upholding--indeed, lauding--a school's decision to punish Frederick for expressing a view with which it disagreed."

He focuses entirely too much on the harmlessness of the banner. In doing so, he gets back into that morass of whether or not the student's behavior was "disruptive."

He cites prior opinions which say, "When the government targets not subject matter but particular views taken by speakers on a subject the violation of the First Amendment is all the more blatant."

He also says "Advocating illegal conduct is constitutional only when the advocacy is likely to provoke the harm that the government seeks to avoid." So he gets all legal about the difference between "mere advocacy" of illegal conduct and "incitement to imminent lawless action." He does get around to saying that nobody ever showed that even a banner which said, "Smoke Pot," would have resulted in anyone smoking pot, which of course one of the truths which underlies the absurdity and sanctimonious aspects of the majority opinion. Cause and effect, drug banner, drug use, ridiculous.

Finally, he gets around to saying, "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

From here, he is able to go to the Baton Rouge sheriff who deemed an appeal to Black students to sit at a whites only lunch counter "inflammatory," and to put that in the same light as the principal who finds obnoxious a banner which had spoiled her great moment in front of the TV cameras.

So Stevens focuses not on the hardest question: At what point must a local state authority accept dissent from a member of a group she thinks she ought to control, which Justice Thomas says she ought to control?

Stevens does let lose the zinger: "Most students do not shed their brains at the schoolhouse gate."

He notes that dissent often simply reflects politically incorrect opinion which has been suppressed. "Just as prohibition int he 1920's and early 1930's was secretly questioned by thousands of otherwise law abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law abiding users of marijuana...Even in high school a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of countervailing views."



So the good justice finally gets to the real issue here, which is probably as important as the free speech issue. The larger issue is: What is real education and what is the real purpose of our schools? More specifically: How would a better principal have reacted to this banner?

Can you imagine if she had broken the students into discussion groups about this incident, if she had asked the questions:
1/ How can the action of this student be seen as part of a longer history of protest?
2/ How could he have made this a real protest rather than a silly stunt?
3/ How have non violent protest gestures worked or failed in history?
4/ What would have happened to Gandhi or to Martin Luther King in a society without the First Amendment, say in Nazi Germany, or Stalin's Soviet Union?
5/ What are the reasons marijuana is illegal?
6/ Are their good arguments for legalizing marijuana?
7/ What are the underlying reasons for the drug policies of the school board?
8/ What was the meaning for the school of the Olympic Torch parade?
9/ What is the value of school spirit, of cheerleaders of a school band?
10/ What was the value of turning students out on the street to cheer the torch parade?
11/ Is there any reason to not be supportive of the Olympics as they currently exist?
12/ What is the history of impropriety related to the Olympics?
13/ How have the Olympic games been used by governments in history?

Had this been the principal's approach, real learning in a real school might have occurred. Of course, this school would be an anathema to Justice Thomas, who sees public schools as little more than indoctrination factories, and this approach would not have satisfied Justice Roberts who cares only that the school day proceed without "disruption."

I suspect Justice Alito could have lived with this approach, and likely Justice Stevens and those who voted with him,

But most of all, we would have had a moment in this country where thought prevailed over emotion.

Bong Hits Continued

JUSTICE ALITO:

While Justice Thomas's concurrence complained the official opinion in Bong Hits was not extreme enough, Justice Alito concurs, but expresses very different reservations.

Far from Thomas's reservation the court did not go far enough to shut up students who might want to question official dogma, Alito expresses relief the opinion was as narrow as it was.

He questions the justification of protecting the school's "Essential mission" because it allows public schools to define, "Their educational missions as including the inculcation of whatever political and social values are held by the members of these groups."

And that disturbs him. He notes, "The 'education mission' argument would give public school authorities a license to suppress speech on political and social issues based on disagreement with he viewpoint expressed. The argument, therefore, strikes at the very heart of the First Amendment."

He also expresses some horror at the image Thomas so loves as the teacher and principal as being a substitute parent: "They are, after all, organs of the State. When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students' parents. It is a dangerous fiction to pretend that parents simply delegate their authority--including their authority to determine what their children may say and hear--to school authorities."

Couldn't have said it better myself, and this Justice goes on to demolish Thomas's love it or leave it argument: "Most parents, realistically, have no choice but to send their children to a public school."

He also notes the physical danger students in public schools face. In this, he sounds as if he has watched the fourth season of The Wire, with some attention.

But then the personal history of a good Catholic who believes in authority above personal freedom, who sees dissent as dangerous takes hold. He knows where he has to wind up in this argument and he spins off, out of control to say that speech, anti authoritarian speech can lead to physical violence. "Illegal drug use presents grave and in many ways unique threat to the physical safety of students," as if unfurling a banner could lead directly to drug use, heroin abuse and sudden death.

JUSTICE BREYER:

Concuring in the opinion, but with complaint, is the Justice Breyer, who did not like the idea of an unruly student going unpunished, but like Justice Alito, he sees the problem with killing off the First Amendment in the process.

It's that old Thoreau thing, "As if you could kill time without injuring Eternity."

He notes that if Frederick's banner had read "LEGALIZE BONG HITS," it would have been speech advocating change in drug laws and that would clearly have been expressing a political opinion which even Justice Roberts might have had to admit is protected speech. He asks, "What about a conversation during the lunch period where one student suggests that glaucoma sufferers should smoke marijuana to relieve pain? What about deprecating commentary about an anti drug film shown in school?"

He notes a precedent (West Virginia Bd. of Ed v Barnette) which found students did not have to recite The Pledge of Allegiance at school. The students were free to express their dissent in silence. This sounds like a very enlightened opinion, especially considering it was rendered in 1943, during World War II. I'll have to read that one.

Breyer is disturbed about the image of a student at school being punished for expressing opinions at odds with the indoctrination promulgated by authorities, because, as we can all imagine, this looks too much like what we were imagining life in the Soviet Union or Nazi Germany was like--where to question authority meant swift retribution. After all, we take pride in the idea that while Hitler Youth was busy shouting "Zeig! Heil!" and extending their arms to their Fuhrer, American children were free to sit in their chairs with their arms folded.

But like the rest of the conservative bench, Breyer has to get to the position of supporting authority, the principal and smashing the student under his thumb: The path Breyer takes to his promised land of authority in command and dissent suppressed is a different one. He says,look it's the misbehavior that's the problem. And a principal has the right under the principal of Qualified Immunity.

Qualified Immunity means that an official acting in the capacity of executing the demands of her office views a student's act as "Beyond the pale," then she is protected from being sued by that student when she exercises her power.

The reasons for this protection are obvious to anyone who has seen the fourth season of The Wire, which demonstrates how students in inner city schools can destroy any chance of any student to get an education by behavior aimed at preventing any real education from occurring in a classroom.

But he goes too far in saying we cannot expect principals and teachers to be jurists, and we cannot expect them to know when they have violated a student's right to free speech.

This is not all that arcane a concept. If we can expect the average citizen to understand the right to free speech, can we not expect those who teach our Constitution to our children to have a basic working knowledge of the First Amendment?

Is this whole episode not a "Teachable Moment?" of potentially more value to students than anything they might have learned at that pep rally for, what is in the end, a commercial enterprise, the Olympics, Inc?

Can you imagine the classroom discussions which might have happened after this protest, which could have encompassed the ideas embodies in the First Amendment, where they came from, how they've been interpreted, including Justice Oliver Wendel Holmes' famous and misleading assertion, "You are not free to shout 'Fire' in a crowded theater,"?

But none of these justices were inclined to imagine the potential value of discussing a dissenting opinion, the history of non violent consent, Gandhi, Martin Luther King, Civil Rights lunch counter protests, marches on Washington, the role of anti government policy peace movements in bringing an end to the war in Viet Nam.

That Alaskan principal failed her students, her school and her community because she reacted emotionally rather than rationally and with her mind. She had had her pretty little pep rally with her marching band and her cheerleaders sullied by those rambunctious boys who were sick to death of the goody two shoes cheerleader crowd. They spat on her parade and she spat back.

Bong Hits: Just the Facts Please

Ethical or legal analysis always begins with establishing the "Facts" of the case. Of course, facts, as I learned in college, are slippery and mutable things, but we try.

Morse v Frederick began one afternoon outside an Alaska high school, when the principal released the student body to line a street in front of the school to cheer the passing of the Olympic torch which was being carried past as a promotion for the Olympic games and TV news was expected. Among several students, Joseph Frederick, unfurled a 14 foot banner, on the far side of the street, bearing the immortal words, "Bong Hits for Jesus," as the torchbearers and camera crews passed by. Prior to this action, friends associated with him had become "rambunctious, throwing plastic cola bottles and snowballs an scuffling with their classmates."ed

Involved in this event were the high school band and cheerleaders. One can only imagine, the pep rally aspect to this, where all the students and teachers should have been beaming grins and chanting cheers and feeling full of school spirits and having other wholesome emotions.

The principal crossed the street and tore down the banner, summoned Frederick to her office and suspended him for 10 days. He failed to report to the principal's office on time and displayed a "belligerent" and "defiant" and "disruptive" behavior when he finally reported.

So there are several possible offenses attributed to the student:
1. That he unfurled a banner facing his fellow students and did not take it down when directed by the principle.

2. That he created a disruption to a school activity.

3. That he was defiant.

4 . That he was belligerant.

5. That he undermined school discipline, the authority of the teachers and the principal.

6. That he encouraged illegal drug use with his banner.

The court found for the principal.

Writing for the majority was Chief Justice Roberts, but Justice Thomas saw enough in this case which disturbed him to write his own concurring opinion, as did Justices Alito with Kennedy and separately, concurring Justice Breyer.

The dissent was written by Justice Stevens.

Joseph Frederick had argued his right to free speech had been violated and asked for damages and asked that his suspension be expunged from his record.

Now for a brief summary of each justice's reasoning. After this, we can spend some time examing, in detail, the reasoning of each and what it tells us about each justice.

But keep the main goal in mind: If I am successful in my analysis, I will convince you each justice began with an emotional response to this case, rooted in their own childhood and school experiences and in their own attachment to the idea of authority.

Jutice Roberts:

1/Rather than take on the problem of whether or not the student's muzzling had been a violation of his right to free speech, Roberts bases his opinion on whether or not the student's speech had advocated a forbidden action: use of the illegal drug, marijuana.
He goes on at length, in a very emotive way, to beat the drum about how harmful drugs are, especially in vulnerable adolescents and how expressing a view favoring the juse of marijuana threatens a core mission of the school, to indoctrinate the student body against drug use.
He says Frederick was at the very least, "Celebrating" mariuana use, which is forbidden in a school. Diluting this message with protest is unacceptable. The state dogma is marijuana, like all illegal drugs, are horrible and any dissent from this dogma is punishable by the state, at least in school. School teachers and principals are allowed to create an environment in which no opposition is tolerated.

2/ He spends some time rejecting Frederick's claim he was not actually in school, but across the street, which is a trivial point and their are rules which define behavior on class field trips, so this is a paper tiger and Roberts takes great joy in showing how wrong Frederick is about this, as if being wrong on this minor point somehow undermines Frederick being right about the First Ammendment.

3/ Roberts then addresses the issue of whether or not Frederick's banner was "Disruptive," because there are precedents which address this as a pretext for forbidding acts of student dissent which is disruptive. (Tinker and Fraser.) And, Roberts decides this act was disruptive, because, mainly, it questioned authority.

He refers to Tinker, a case in which students protesting the War in Vietnam were disciplined for wearing armbands and were protected by the First Ammendment because the justices in that case said that students did not have full adult rights when students were in school. He refers to Fraser because in that case the student had given a sexually provocative speech at a school assembly and the court said that school is a special environment where the Constitutional right to free speech may be abridged. And if the students speech interfered with that work, it is okay to forbid it.

Justice Thomas

1/ Invokes a long and strangely selective, one might say fantasy about the history of education in the United States, which began with private schools and only gradually evolved into a system of publica schools. In this bygone lost paradise, the teacher ruled supreme, was a parent substitute who could beat children physically and the teacher taught and the students accepted what they were taught without question, without opposition and totally happily. The unruly passions of children were tamed and the children came to accept virtue and to internalize it. "Public schools were not places for freewheeling debates or exporation of competing ideas." And that, Thomas says, was a good thing. "Teachers instilled these values not only by presenting ideas but also through strict discpline...Rules of etiquette were enforced and courteous behavior. To meet their educational objectives, schools required absolute obedience...In short, teachers commanded and students obeyed."

And this, Justice Thomas says, is how schools ought to be.

Courts have upheld this vision of the state's role in education: "Courts routinely preserved the rights of teaches to punish speech that the school or teacher thought was contrary to the interests of the school."

2/ He suggests parents who find this sort of atomosphere antithetical to what real education means, the fostering of the ability to question, to criticize, to argue without malice or hostility, well, "They can send their children to private schools or home school them."

With the next post, we'll examine the Alito, Kennedy and Breyer opinions.

And once all these opinions have been summarized, I'll have something to say about them.

Illusions of Grandeur: The US Supreme Court

Listening to my dismissive comments about the nature of the current Supreme Court, my son recently said I was simply ignorant about the court's workings, the judicial process and legal thinking. In essence, he was saying I am guilty of amateurism voicing resentment based in ignorance.

He may have a point. I have railed against many Supreme Court decisions, but even more against the very essence of the idea of the Supreme Court as being guided by the law as opposed to being guided by the individual psyches and political persuasions of the justices.

What does it mean to be "guided by the law?"

For me, it comes down to the question the judge asked me when I was serving on a county jury and the judge asked if there was any reason I could not serve on the jury. And I said, "Well, this is a case about the defendant selling a small amount of marijuana and I do not think marijuana should be illegal." And the judge said, "But if we could show you that marijuana sale is illegal in this state, and if you were convinced this man did in fact sell said marijuana, could you vote to find him guilty of violating the law?" I had to said, "Yes, I could." The judge then empaneled me to be on the jury.

That would be a case of my holding my nose and following the law.

But do the supreme court justices do this?

It has to be admitted, the choices presented the justices are not as simple. In Dredd Scott, the issue was whether a human being could be considered property. If Dredd Scott is property, then the decision about whether to return him to his "owner," is straightforward as the sale of marijuana. But the issue is whether or not a human being could be considered property. Show me in the Constitution the text that deals with that one.

Well, actually, you do have slavery alluded to in the Constitution. Slaves are those "others" who are counted as 2/3 of a person.

To look at how far from trying to "follow the law" rather than "interpreting" what the law means, the best case I can think of is Morse v Frederick, or the "Bong Hits for Jesus," case and over the next few posts, I'll go into each opinion written by the various justices to illustrate my underlying premise: Despite the black robes, and the trappings of legal "scholarship," these men are no more "qualified" to render an opinion than the guy who works at our town dump, who may not have the college and law school education, but who is intelligent and who is every bit as capable of rendering a reasonable decision in this case.

But, before I get to this case and what it tells us about the Supreme Court, let me fully disclose. I have some experience with the heavy hand of a school authority, in this case the Head of School of a private school, who threatened to suspend my son and ten other students in their senior years, while their college acceptances hung in the balance, because they took part in the reading of an off color poem (a take off on "The Night Before Christmas") at a school assembly before the Christmas break.

The poem was a knuckle headed prank, but what it revealed about the Head of School (HOS), was, as one of the other parents who was present at a meeting of the parents with the HOS, the "Unmasking of the Monster."

A little background. This is a school which sends a dozen kids to Harvard, an equal number to Yale and Princeton and other competitive schools out of each graduating class of 100. The HOS graduated from Guilford College, a Quaker college in the South and I asked him, "You know, listening to you talk about this event, a poem read at an assembly you did not attend, I gather you heard about this from outraged teachers and you became outraged yourself. And it's my intuition this event, by itself, was not an isolated event. It sounds as if you have had difficulties with some of these students before."

And he answered he actually did not know any of the students personally, could hardly have put names to faces for most of them, but yes, he had been frustrated, walking the halls, seeing the way parents sent their children to school, dressed in tight jeans and low cut T shirts that "left nothing to the imagination," and whenever one of them wound up in his office, threatened with suspension, he found himself faced with not just both parents in their power suits, with their attache cases but with their lawyer.

So, the resentments harbored by this Head of School toward the elite, wealthy, Harvard educated parents and their coddled, profligate children had rankled him for years. And this was his chance to strike back. To strike a blow against this brats who had uttered "Blasphemy" (his own word) in a Christmas assembly, he had not attended, but had heard about.

In much the same way, I think we can see much of the same in the various justices, some more than others, as they look at this case.

And what it means, in the end, to give a preview of coming attractions, is this Third Branch, the one we like to believe is professional, dispassionate and not political, is anything but.

Once we look past the black robes, past the Emperor's clothes as it were, to the men and women beneath, one might argue, we ought to think again about whether or not lifelong appointments to the Supreme Court is really such a good idea.

Hope

I have little hope President Obama will be re elected, because it's the economy stupid, and in case you haven't been listening, Mitch McConnell said on the Senate floor, when voting down a bill which might have actually helped the economy he was voting against it because he was not about to help Obama get re elected. His number one priority is making Obama a one term President and not the welfare of the country in the short term. In the long term, he wants to save the nation from a second Obama term. And the Republicans are smart enough, and the Democrats stupid and weak enough to allow all that to happen.
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But there is some hope that some people at least, even some Republicans, can gradually see the bigger picture and gravitate toward doing the right thing.

Which is to say, even some rich Republicans are candidates for salvation.

There is a plastic surgeon I know, for instance, who has all the indices of being headed on the path straight to hell--rich, lives in the lap of luxury, drives a beamer, big house, beautiful wife and kids, boat, and could care less about justifying what he's got. He earned it. He worked hard, stayed up late at night during years of training in general surgery, which he never wanted to do, but had to do to become a plastic surgeon. So he suffered for his art. He finally arrived in the promised land being a plastic surgeon.

Now, of course, if you dig a little deeper into his story, he went to the best private school in his hometown, then off to Vanderbilt, not exactly a school available to the economically deprived, then on to a first rate, private, expensive medical school.

Which is to say, he had all the advantages. he was born on second base, not third, but he still had to get home. And he did. He ran hard and he did not disappoint.

So this guy arrives, finds he has to deal with women who will never be happy with the way their noses look, will never be happy unless the thread count in their hospital sheets is high enough and he said actually, I'd rather do breast reconstruction. Those women actually need me and I can take a woman who has had a mastectomy and make her feel better about herself, about life ahead and I can sleep at night. I won't starve. My yacht may be smaller, but actually, these people need me.

So some people can find that happy medium.

The question is, how many people in this country can do that. Find that center President Obama is always talking about, which is not a very sexy place to be, but allows you to have enough and to do for other people who really need it.

There's always hope.

Nation Building

Last Sunday's New York Times ran an article about a young man and woman in Afghanistan who were caught riding together in an automobile. They were unmarried and may or may not have been having an affair. They were pulled from the automobile by someone, perhaps police and a crowd gathered and learning of their offence surrounded the star crossed possible lovers, determined to stone them to death. Some government officials, possibly some sort of police arrived, intervened and hauled the couple off to jail, the woman going to a woman's jail.

When the father, an illiterate laborer arrived to visit his daughter in jail, he was in tears, not because of the trauma of what had nearly happened to his daughter, but because he had to agree with his neighbors she had to die. She had dishonored her family. She may have been promised to someone else.

This is a fascinating ethnograph, a description of a culture, its values and had I read it in college, I would have finished the story with sadness for the couple, but telling myself not to render judgment on another culture.

The problem is, this is a country where American men and women are serving, dying and suffering for the sake of establishing a stable society, to deny Al Qaeda a safe haven for training jihadists. Our soldiers, men and women, may be having affairs of their own while they are deployed and they are fighting so that other men and women can be stoned to death for the same behavior?

This is the problem with "nation building" which is to say, the problem of trying to establish a little American out of a country which is not really a unified country in the sense we know it. We are trying to unify a land of tribal passions, stirred with a violent strain of Islam and we are operating on another planet, from a cultural point of view. We cannot and should not try to intervene. We cannot impose a Pax Americana on the heathens. We have actually never succeeded in doing this, whether you are thinking about our efforts to "civilize" the Indians of the Great Plains (in particular, the Comanches) or to pacify the South after the Civil War, which clearly did not happen, with an armed guerrilla movement, (The Klu Klux Klan) and Jim Crow persisting for 100 years.

So, if you cannot legislate morality, you certainly cannot impose America on unwilling populations.

All of which is to say, we should get out of Afghanistan (and Iraq) yesterday.

Culture Shock: Legal Foundation Speaks

"Last month, the Washington Legal Foundation, a pro business group, filed a petition with the F.D.A arguing that the agent was statutorily barred from adopting any of the report's recommendations, claiming the panel was biased because it did not include industry officials, investors or patients who had benefited from the devices."

This is from the New York Times (7/30/11), a story about a particular metal to metal hip replacement which resulted in metal shavings enfilading the soft tissues of the hip and even possibly becoming blood borne. Pretty nasty stuff, which, as is so often the case with medical devices and with drugs, was not apparent until the product hit the wide open market and thousands of patients in the real world got exposed.
So the Institute of Medicine, a group of physicians and scientists wrote a paper warning against these devices, acting as part of the National Academy of Sciences, which is itself a quasi governmental organization which hopes to render opinions on issues of scientific importance without the influence of politics or vested money interests. The idea is that scientists ought to be able to evaluate certain things without considerations of who would be hurt financially, who might gain politically, just the science, please.
In the case of these devices the IOM suggested the unhappy experience of these particular devices is just the tip of the iceberg: The whole idea of the way in which medical devices like hip prostheses are approved for mass marketing is flawed; too few devices are evaluated in too few patients to be able to predict harm.
From the point of view of physicians, from medical school onward, you are always looking a ways of evaluating diagnoses and therapies in a way which eliminates biases, in a way which leads to the truth: Either a hip replacement device works well or it does not, or is limited; either it last a long time or it does not; it may wear out sooner than patients find acceptable; it may return the patient to full motion and function or it may not. All of these things need to be evaluated and in the process the eagerness of the patient to believe he did the right thing by having the device implanted, the eagerness of the doctor to believe he did the patient a good service, the eagerness of the device making company to believe they did good and no harm all have to be resisted and neutralized so you can make a decision not on what you want to believe but on the basis of what you really ought to believe.

In medicine., wishing does not make it so. Wishing for a drug which cures a particular type of cancer without harming the patient does not make a drug work. Wishing for a pacemaker which saves lives, does not save lives; wishing for a coronary artery stenting procedure which prevents heart attacks and saves lives does not save lives or prevent heart attacks.

Either these things work or they do not, and if you find problems, these have to be dispassionately evaluated. The whole idea of taking a side is antithetical to evaluation of drugs and devices.

But in commerce, you take the side of your device or your drug. You deny its risks and disadvantages and talk up its benefits. You sing the song of testimonials: Oh, this patient had a wonderful experience--never mind a year later he was crippled or dead. Your enthusiasm and product loyalty sells.

But scientists have to resist all those emotional forces and simply tell the truth.

What's wrong with hearing from patients who have been benefited? Isn't it the patient who is the one we care most about? Of course, but the patient trotted out by the drug company is not relevant. The fact a device has helped one patient does not diminish the concern over the hundred patients who were harmed by it. Thalidomide likely benefited many pregnant women, and the company that made it could have trotted out lots of mothers who would talk about the relief from nausea they got, how it changed their lives, but wait 9 months until their children were born without arms or legs and see how they feel then.

Diethyl stilbesterol (DES) may ( or may not) have saved some pregnancies from spontaneous abortion, but when the daughters of the mothers who took DES reached child bearing age, they discovered they had vaginal carcinoma.

Medicine is a litany of patients who were pleased with their therapy, only to find it harmed them later. And even if it did not cause harm later, if it caused no harm to some but devastating harm to others, that therapy ought to be thrown on to the trash heap.

So, forget the testimonials from satisfied customers.

What is really appalling is the contention the IOM and FDA ought to be rendering judgment about the safety and efficacy of devices and drugs taking into consideration the voices of those who stand to profit financially from these products (the "industry officials" and "investors.") The whole idea that would be a good thing to make this decision based on the testimony or interests of those who have a stake in the success or failure of a device is a very radical notion. What the Legal Foundation is saying is we ought to build bias is into the system.

Would the Legal Foundation urge judges to include in every jury a relative of the defendant, because they may have a stake in the outcome. Or how about allowing one of the defendant's lawyers on the jury? Or the defendant's wife? Or one of his investors?

This comes down to one of those "What were they thinking?" moments.

Here are people who are so accustomed to advocacy before anything else, before public good, before anything, they have lost their moral compass. All that counts is winning. All that counts is making money. All that counts is being able to get your way, the public be damned.

Is this a wondrous country, or what?