Friday, August 11, 2006

What the ABA Talks About

The American Bar Association just finished up its conference in Honolulu. Thanks to the Federalist Society keeping tabs on them and keeping its membership updated, here's a sample of what the conversation is:

Professor Elaine Chiu of St. John's School of Law discussed "The Criminal Law in an Age of Multiculturalism." Chiu bemoaned that, right after 9/11, race relations dropped into the "dark ages" due in part to an "unassailable public support" for racial profiling and deportation. This was due to an increased commitment toward national security at the expense of "equality, respect, and dignity." However, changing demographics will lead to an "age of multiculturalism" that will in turn lead to other, new questions about the substantive criminal law. According to Chiu, "As awful as selective enforcement and racial profiling are, their effects are compounded if individuals are prosecuted on the basis of laws that are themselves inherently unequal and unjust."

Chiu describes current criminal law as "assimilationist," as it "expresses the values and norms of the dominant Anglo-American culture to the exclusion of other minority cultures." Although some may protest this characterization, "their failure to appreciate the presence of culture in our penal codes is the result of their moral absolutism and legal centralism." An example of this phenomenon is the use of deadly force to defend a home from a burglar. Chiu describes this as an "alarming trend of valuing self-defense over retreat." Not all cultures, she emphasized, value property over life. Property rights are a very Anglo-American concept. This "assimilationist" approach leads to outdated criminal laws out of step with the American populace. To have criminal laws (based on British laws) that reflect the beliefs of only half of the American populace is "preposterous." A second consequence is the "loss of justice and equality for defendants of minority descent." Ultimately, "assimilationism is a recipe for disaster."

Instead, Chiu advocates a combined pluralistic/individualistic approach to criminal law. Minorities would be able to receive a hearing for their side of the case. Chiu maintains that a "respect for a defendant's culture is respect for the defendant itself." She supports a "cultural defense." Minorities must demonstrate that they are "deadly serious in their cultural commitments...The majority's refusal even to consider minority practices as an alternative is intolerable."

So. A "cultural defense." Does that mean that white culture is different than black culture, and that we should treat black people differently in court than whites? What was the civil rights struggle all about anyway?

This kind of talk is profoundly anti-American. (Yeah, I said it.) We are a nation of laws, not of people. Lady justice is blind to color and "culture," and rightfully so. America is about taking personal responsibility for our actions, and about being treated equally under the law. We are an exceptional nation, and our "Anglo-American" culture, which respects property rights and personal liberty, is demonstrably supreme over any other in the world.

The American culture, economy, and way of life has produced the most successful and prosperous nation that has ever existed on the face of the earth. People from all over the world come to this country because they have rejected their culture and have chosen to become a part of ours. Why on earth would we want to backslide and make our laws conform with whatever defective cultures people have expended so much energy to escape?

Imagine if Professor Chiu were to get her way. Does that mean domestic violence among certain cultures should be excused? What if a Muslim killed a Jew? What counts as "black culture?" Should we allow slavery? Polygamy? Cannibalism? Bribery? Forced female circumcision of teenage girls? Arranged marriages of 12 year olds? (So much for international feminism...) I doubt that any Chinese immigrant, despite their Communist upbringing, respects property rights so little that they wouldn't think it was a big deal if someone broke into their home.

The ABA will always lean left. Most people go to law school because they want to save the world using government, and are thus big believers in big government. Fair enough. But this kind of thing (and there was plenty more ridiculousness) is beyond the pale. Until this stupidity is rejected, the ABA will never get one thin dime of mine.

By the way, one of the benefits of the $5 per year Federalist Society membership is that they have a reporter at all such ABA events, and E-mail out updates to the membership. (If anyone missed the last round and wants them forwarded, just shoot me an E-mail.) They also publish the ABA Watch, which keeps you apprised of what lobbying efforts they're spending the dues they're asking you for on.


Cato said...

Yeah, the "cultural defense" does seem a little bit fishy as it relates to our "government of laws, not men". If Chiu really wants to change the legal system, she can always lobby her state's legislature to change the criminal law in her state. Hell, she's even welcome to come lobby ours, though I don't think they'll pay her too much attention if she isn't a Washingtonian.

Orrin Johnson said...

How dare you. "Government of Men." Sexist.