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Navigating our way to justice

Lady Justice perched atop the Nevada Supreme Court building in Las Vegas as seen on Wednesday, Dec. 19, 2018. (Jeff Scheid/The Nevada Independent)

Of all the skills I learned in the Navy, one of my favorites was celestial navigation. Steering by the stars and knowing how to read the sky is indisputably romantic. Modern conveniences like GPS are handy and more accurate, but Chinese missiles can’t shoot down Arcturus the way they could easily disable a constellation of satellites. 

One of the interesting things about celestial navigation is that it relies on an artificial – and totally false – construct in order to work. Navigators must imagine a “celestial sphere,” which surrounds the Earth like a Russian nesting doll, and each star is just a dot with a known position at a known moment in time on that sphere. One can then take a bearing to three stars or planets, and triangulate your position on the globe.

Obviously, this ignores the fact that the stars' positions are not actually fixed, relative to us or to each other, and they fly around the galaxy at any number of distances from us. There is no “celestial sphere.” But what would be an absurdity to teach in an astronomy class has opened the horizons of human enterprise and intercourse for centuries. And if sailors had known the truth about the heavens, and insisted that this artificial model of the universe not be used as a result of it being inaccurate, our global society would be infinitely poorer for it. Fortunately, the “truth” they cared about and focused on was the goal – getting safely to their destinations.

We use these types of constructs in sciences hard and soft all the time. Our understanding of gravity and relativity and orbital mechanics is constantly evolving, yet we still use Newtonian physics to put people into space. Whether you believe in God or not, our poor understandings of the mind and intentions of any deity will always be limited. And yet, throughout human history we have relied on religious strictures to organize our societies and our understandings of ourselves, both for ill and for good. 

Of that later type, perhaps the most consequential and transformative in all of human history are the Enlightenment concepts which became the foundation of the American experiment. The recitation of those constructs in the Declaration of Independence is still impossible to improve upon:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. ~ That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, ~ That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Fools who learn their history from whatever grievance studies class their ridiculously wealthy nation allows them to waste their parents’ money and time on will sneer at this. They will rightly point out that Thomas Jefferson and many of his co-signers were slave-owning hypocrites, but they will wrongly think that the failure of a person making an assertion of principle to live up to his own standards somehow invalidates the principles underlying those stated standards.

The truth is that the idea that “all men are created equal” is not, strictly speaking, true. We all have different gifts, different genetic and socio-economic-historical lucks of the draw. But the construct of “all men are created equal” nevertheless is the foundation of our entire system of justice and due process, not just in criminal matters, but in every aspect of our society and government. Every bit of social progress in this country – the Constitution itself, the Bill of Rights, the Emancipation Proclamation, the women’s suffrage movement, the effective civil disobedience of Martin Luther King, Jr. and the end of Jim Crow laws, gay rights movements – were/are in some way attempts to get closer to this noble founding ideal. Indeed, all of those movements owe their existence and their successes to that construct Jefferson elucidated so well, and also to the fact that the Declaration’s principles are, in fact, central to America’s sense of itself.

All of human history is filled with dark spots, and the United States is no exception. But we are exceptional in that our founding principles have made us powerful, prosperous, and yes, even just beyond any other society that has ever lived. The closer we get to our ideals of equality, the more prosperous we become. (Slavery and racism are not only evil, history tells us they are terribly inefficient as economic models in the long term.) 

***

We see new social constructs pop up all the time in efforts to improve society. The most notable beyond our own is the communist/socialist model, where no one thought to consider that “from each according to his ability, to each according to his need” required an authoritarian “decider” picking and choosing who had “ability” and who had “need.” (Well, no one but the people who saw themselves as the dictators.) This construct murdered and starved 100 million people, and enslaved and impoverished hundreds of millions more. 

It is worth pointing out here that while the use of violence is often necessary in achieving peace or justice, not all violence is created equal. In the American revolution, the patriots declared themselves openly, wore uniforms, and generally conducted themselves as soldiers and statesmen of a civilized nation. In most revolutions, the revolutionaries are far messier, and less discriminating in their violence. In those cases – the French Revolution, the communist revolutions in Russia, China, Cuba, Cambodia, and elsewhere – the tyranny and injustice brought about by the insurgents was far worse than the original regimes they were attempting to replace. Shooting cops or innocent bystanders, trashing small businesses and the public property their taxes pay for, beating up journalists with the temerity to film your riotous face, or committing arson is definitely more Mao than Washington, which is why no quarter should be given to rioters and looters no matter how righteous we may view their stated goals.

Not all social constructs are created equal. And more than a few are dangerous. 

When all men and women are considered to be equally valuable children of God, justice follows. All people similarly situated ought to be treated the same by their government and by their neighbors, and allowed to pursue whatever lifestyle and vocation they wish, so long as it doesn’t hurt anyone else. Most importantly, it means we must look at each person as an individual, a unique entity with his or her own thoughts, ideas, opinions, dreams, and ambitions. In a just world, we identify people as themselves, not as merely a unit of whatever demographic we decide is important in the moment. 

This is why I disdain our most recent social construct – this idea that our society is marbled through with “systemic racism” or other inherent injustice, even if (as is the case) the vast, vast majority of individual members of society openly abhor racism and other forms of bigotry. 

In order to make use of this idea, we are forced to see each other as colors instead of people. All white people must understand we are all equally guilty (sins of the father, and all that), and must take steps to understand how we continue to victimize all black people. We are told that all white people must identify black people as victims, and treat them as such, even to the extent that we excuse what would otherwise be inexcusable acts. But we are never told how any of this will actually improve anyone’s lives – it’s nothing more than goalpost-moving thought policing, useful only to opportunistic politician who wants to silence adversaries instead of debate them.

Such paternalism disgusts me, as does the idea that your life and experiences and opinions must all be seen as primarily functions of your melanin levels. The idea that the correctness or propriety of one’s opinions depends on the color of one’s skin diminishes us all in ways that are almost impossible to comprehend. There is no such thing as a benign way to divvy us up based on race. For the few remaining true racists out there, their shriveled little hearts must sing to see widespread re-acknowledgement of what they have “known” all along. 

If you look hard enough to find racism in all things, confirmation bias will make you see it whether it actually exists or not. Ironically, this only serves to fan the flames of racial discord by making a real problem seem much bigger than it actually is.

More than philosophically repellent, this construct is counter-productive in practice. It is certainly true that the lives of black Americans have been influenced – often to their detriment – by the still-audible echoes of history. But each generation must be responsible for its own future. To tell a young black man that the system is rigged impossibly against him because of his skin is to insist that he become a failure – it’s not his fault, after all, and he therefore has no skin in his own game. It divorces him from his society, and dehumanizes him. Why wouldn’t you riot, in the clutches of such hopelessness? In my profession, I often have the privilege of representing young people of color in court, trying to free them from the system, or at least use it to get their lives back on track. It would be a great evil for me to convince my young clients of their own doom, rather than help them see a better and eminently possible better future for themselves.

If we cannot escape our own history, what’s the point of even trying? How many generations do we self-flagellate to atone for the sins of our ancestors? And what, ultimately, is the purpose of all of this self-flagellation, protesting, and rampaging?

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I have dedicated my entire adult professional life to actively fighting for justice and civil liberties. It’s why I joined my nation’s military, and it’s why I chose my profession, and why I practice the type of law that I do. And so I am intensely interested – what are the end goals of this racial justice movement? 

I have always believed our goal in fighting racism and bigotry is a melting-pot society where we are generally indifferent to race or other, unimportant differences amongst us. Is that the goal of Black Lives Matter? Is it the goal of any given politician? Is it the goal of the criminals who tried burning down my City Hall? The more emphasis placed on race by any given person or group, the less certain I am that we share the same vision of victory.

Without an endgame we can agree on as a society, we are navigators who don’t know which port we’re trying to sail to. We’re adrift, and therefore agitated and hopeless. Protesters and those who support them have an obligation to announce their goals. In doing so, they may be surprised how many more allies they have – (or how many less, depending on what they have to say).

Agitated and hopeless people can be valuable to certain politicians – such people are the supporters of populists, left, right, and center, and elected officials willing to exploit this have no incentive to calm people down or bring them together. Be suspicious of the politicians who wade into this moment of time trying to ride it like a surfer catching a wave. After all, the hottest hot-spots of protest and perceived racial disparity in policing are in places where only one political party has been in unchecked power for decades. Be especially suspicious where they refuse to identify specific policies or solutions.

What is frustrating to me is that we already are making so much progress towards a race-indifferent, more just society. The police officers in Minneapolis who murdered George Floyd were immediately fired and quickly arrested and charged – police unions (who should be outlawed) would have protected them a decade or two ago. Criminal justice reform is happening in substantive, meaningful ways, both here in Nevada (spearheaded by Democrats) and on a federal level (by Republicans). In November, voters will have a choice between a presidential candidate who pushed “tough on crime” legislation which contributed to massive incarceration of black Americans, and another who signed reforms into law that will go far in saving the next generation from the excesses of law and order. Only Nixon can go to China

Even our bad actors are more enlightened. In my career, I have seen far too much police misbehavior and even brutality. Last week, I listed several examples. Spending as much time as I do in the many smaller jurisdictions in which I practice, the bad apples self-identify pretty quickly. But in my experience, their misconduct (which ranges from lazy, inadequate investigations to perjury to penchants for excessive violence) has nothing to do with race – bad cops are equal-opportunity jerks. The fact that a black man was abused by a white cop is not proof the cop was motivated by race – bullies generally aren’t so discerning in any event. And nationally, actual data (as distinguished from anecdotes) does not seem to support the idea of widespread or systemic racial disparity from police – if “believing in science” means anything, it must mean we are willing to rethink our narratives when the facts and numbers don’t bear them out.

If the goal is a total end to all injustice and unfairness, though, we will never reach it. As Gary Larson once reminded us, God sprinkled the Earth with jerks, “just to make it interesting.” It’s OK to have an unattainable goal if in the process of striving for it we improve our lives and our society. But it’s not OK to make impossible perfection the enemy of the good, which I fear is the trap the current social justice movement is falling into. If we are going to have honest conversations about hard topics, we should at least honestly include all of the good with the bad.

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As we start this new round of introspection on how we as individuals and as a society treat our fellows, we must begin with the end in mind. If we do so, the conversations will be fruitful. Otherwise, those discussions will only polarize us further, as we argue past each other. 

Whatever rhetorical or theoretical construct we use to enlighten and understand each other will be imperfect. But if we recognize it and use it as a tool to achieve our goals of cultural peace and harmony, then those imperfections don’t matter. We will have – together – steered a course closer to justice, keeping clear of rocks and shoals and other dangers, like politicians who will in the name of “social justice” seek to further divide us into entrenched camps, where tribalist votes are easier to whip up, and people of color can continue to be taken for granted by one party and ignored outright by the other. 

It doesn’t matter whether our lodestars are artificial points on a nonexistent sphere, or giant balls of gas. If we keep our eyes on the heavens and our hands firmly on the helm, we will come out of this all better than ever as individuals, and as Americans.

Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a criminal defense attorney in Reno. Follow him on Twitter @orrinjohnson, or contact him at [email protected].

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