The Contents of One’s Own Mind

This link goes to a fascinating little explainer by Popehat on Twitter.  Excerpted here and lightly edited for readability:

The Fifth Amendment says you can’t be “compelled in any criminal case to be a witness” against yourself. The government can’t compel testimony from you if it might incriminate you — at least not without a grant of immunity.

One of the issues the courts have had to confront is this question: what is testimony? Is a sobriety test testimonial, especially if you have to talk? A blood test? Mandatory filing of tax returns? A handwriting sample? And so forth.

Now, pre-existing items and documents are not testimony. It’s not testimonial if you’re forced to turn them over — in the abstract. But there’s a nuanced, complicated exception. Sometimes the “act of production” can be testimonial.

The idea is that if the government subpoenas you for documents, and you turn them over, you are admitting the existence, authenticity, and your possession of the documents — and those may be incriminating. So even if the documents aren’t testimony, producing them might be.

So years ago, the Supreme Court decided that sometimes, if it wants to compel production of documents, the government will have to offer what’s called “act of production immunity” — they can’t use your production of the documents against you.

Then, in 2000, the Supreme Court expanded the doctrine in the case of Clinton associate Webster Hubbell. The case involved very broad fishing-expedition style subpoenas from Independent Counsel Ken Starr.

The subpoenas were very broad — they asked for things like “any and all documents reflecting, referring, or relating to any direct or indirect sources of money or other things of value received by or provided to” Hubbell.

The Court found that because of how the questions were framed, identifying documents in response to them was “the functional equivalent of the preparation of an answer to either a detailed written interrogatory or a series of oral questions at a discovery deposition.”

Put another way, rather than simply physically turning over documents, Hubbell had to use “the contents of his own mind” to select documents responsive to the government’s broad fishing questions. That made his response testimonial, and thus protected by the Fifth Amendment.

Power, Judgment, and Love

Back in high school and college, I had friends who offered to do tarot readings for me.  I always turned them down.  “What a dumb idea,” I’d think.  “How could a deck of cards predict your future!”

Then a few years ago, my friend Zandra made the offer differently.  “I use tarot cards to help my brain think about problems in a new way.  Want to try?”  I was still a little dubious, but I agreed to give it a shot, and I’m so glad I did.

Humans are a storytelling animal.  We use symbols and associations to shape our thoughts, actions, values, hopes.  We do this constantly, albeit largely unconsciously.  A tarot reading is just a way of making this storytelling process explicit and therefore manipulable.

All of this is a preface to a specific set of cards I’d like to talk about:

Three cards from the Tarot: The Devil, Judgment, and the Lovers

I’ve drawn these cards together in a few different readings, and come to associate them with a set of ideas and concepts that are very important to me.  These associations are echoed and enforced by the visual similarities in the cards.  Let’s take them left to right.

The Devil

A surface reading of this card might suggest that the Devil is an ominous figure who has enslaved the people beneath him and keeps them trapped against their will.  But I don’t see these figures as slaves.  The christian Devil is a seducer.  The figures have somehow chosen to be there.

But why would someone chose to give up power?  Or rather, why would someone chose to believe they have no power?

In On Killing: The Psychological Cost of Learning to Kill in War and Society David Grossman described a study published by Richard Gabriel in his book, No More Heroes.  A thesis by Janine Wannacott explains it this way:

Gabriel showed that during both world wars, prisoners of war did not suffer psychiatric casualties from artillery attack, but their enemy guards did (1987). The guards were in a position of responsibility, while the prisoners were not. Grossman cites this (1996) and explained that the prisoners had no control over their situation; their living or dying was up to the guards. The guards, meanwhile, were crushed under the burden of responsibility of their own, their companions’, and their prisoners’ lives.

Responsibility can be tremendously stressful. Responsibility for matters of life and death, in murky, uncertain circumstances, can be almost too much to bear.  Put down your burdens, the Devil seduces us.  There’s nothing you can do.  You’re powerless to change this.  You have no responsibility.

In her poem Return, Carolyn Forche stands in a supermarket recounting to a friend her experiences as a human rights activist in El Salvador and explaining how helpless they make her feel.  The friend replies:

Your problem is not your life as it is
in America, not that your hands, as you
tell me, are tied to do something. It is
that you were born to an island of greed
and grace where you have this sense
of yourself as apart from others. It is
not your right to feel powerless. Better
people than you were powerless.

It’s a complicated poem.  I used that last line – better people than you were powerless – to shame myself for years.  We’ll come back to that feeling of shame in a bit.  But for now, I want to focus on the line right before it: it is not your right to feel powerless.

It is not our right to feel powerless because we are not powerless.  The devil lies when he tells us we have no power and therefore no responsibility.  He has seduced us into wearing his chains, but we always have the power to take them off.

So… how do we take them off?

Judgment

This card shows the angel Gabriel waking the dead with his trumpet.  It is time for them to be judged by God.

I just talked about how we imagine we are powerless before the devil.  We also imagine that we are powerless before God.  But unlike with the Devil, we don’t feel bad about it.  It’s humble and good to submit to God’s judgment, right?

If we define “submitting to God’s judgment” as something we do after death I have no criticism of it.  I’m not gonna tell you how to live your best afterlife. But submitting to God here and now too often means submitting to the church’s will, or your local priest’s will, or your parents’ will.  More generally, it means submitting to a set of predetermined rules and values without questioning them.  This can be as tempting for secular people as for the religious.

The power of judgment is our greatest responsibility, because it is the power from which all other powers flow.  After all, we cannot act until we have judged that we should act.  Some people try to avoid responsibility by pretending they have no independent power of judgment.  They say, “I was just following orders”.  Courts have rightly rejected this defense and that’s because it elides the truth: that choosing to follow orders is itself an independent judgment.

We cannot lose or forgo our ability to judge.  But what is judgment?

Some people conceive of it as the simple application of rules to a situation.  Perhaps they imagine a judge, faced with a defendant, who classifies their crime as Crime A according to the criteria in Law B.  But this is not how the judicial system works at all.  Law is messy, ambiguous, full of contradictions and conflicting precedents, constrained by precise language yet liberated by the inherent imprecision of language.  A judge doesn’t color by numbers, she paints.  No wonder attempts to automate judicial decisions have been, by and large, a horrific mistake.

Jeremy Bentham said: “The power of the lawyer is in the uncertainty of the law.”  Without uncertainty there would be no need for judgment.  There would be no need for responsibility, no opportunity for power, no occasion for free will.

Unfortunately, tolerating uncertainty is hard.  During the Manafort trial, the jury asked Judge Ellis to define reasonable doubt for them.  But it is not actually possible to define reasonable doubt, at least not in the way the jurors were likely hoping:

 

“The truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief.” — John Henry Wigmore, Evidence in Trials at Common Law

Most federal and state courts adhere to the “reasonable doubt” standard, but judges have been loathe to define it further. In a 2011 case, the U.S. Court of Appeals for the First Circuit denied an appeal that was based on a trial court’s refusal to impose a definition.

“The term reasonable doubt itself has a self-evident meaning comprehensible to the lay juror,” the appeals court ruled. “Most efforts at clarification result in further obfuscation of the concept.”

The jurors were looking for more rules to help them make their decision. They wanted to submit to God’s will – or in this case, the state’s.  Understandable, but past a certain point no rules are available.  You cannot lay down your burden.  You must judge for yourself.

The Lovers

The Lovers card, visually, is a combination of the Devil and Judgment.  The human figures look similar to the pair of humans on the Devil card: naked, the woman on the left with symbols of fruit and growth and the man on the right with symbols of fire.  The creature hovering above is more similar to the Judgment card: a wreath-crowned angel, whose presence in a bright blue sky evokes an atmosphere of hopefulness.

If the Devil is what tempts us to deny our power of judgment, the Lovers encourage us to embrace it.

Behind the naked man is a burning bush, like the one through which God spoke to Moses and commanded him to go free the Israelites.  Moses tries many times to refuse this responsibility, asking “Who am I that I should go to Pharaoh and bring the Israelites out of Egypt?”  (Exodus 3:11)  But in the end God convinces him, by giving him a partner:

“Now go; I will help you speak and will teach you what to say.”

But Moses said, “Pardon your servant, Lord. Please send someone else.”

Then the Lord’s anger burned against Moses and he said, “What about your brother, Aaron the Levite? I know he can speak well. He is already on his way to meet you, and he will be glad to see you. You shall speak to him and put words in his mouth; I will help both of you speak and will teach you what to do.”  (Exodus 4:12-15)

Responsibilities are less heavy when shared.

Behind the naked woman is a fruit tree with a serpent, like the Tree of the Knowledge of Good and Evil.  In the story of the burning bush, Moses tries to refuse a responsibility pushed onto him by God.  In the story of the Tree of the Knowledge of Good and Evil, Eve tries to take on a responsibility refused to her by God. 

And it’s not just any responsibility.  The knowledge of Good and Evil is what allows us to judge our own actions as good or evil, so you could also call this the Tree of the Power and Responsibility to Judge.  Once they’ve gained the power and responsibility to judge, the Lovers lose paradise.  How could they keep it?  How, when they understand for the first time not only that suffering exists but that they themselves are a cause of it?

Thank God they’re not alone.

Love gives us strength to judge and to face the consequences of our judgment.  What we cannot do for ourselves we can often do for others.  Love helps ease suffering.  It pushes us to seek the happiness of our beloved, even when their desires conflict with ours.    Love compels forgiveness.  When a loved one hurts us we want to forgive them, sometimes so badly that we forgive even when we should not.  

The Lovers don’t represent only romantic partnerships.  They represent friendships as well, and familial relationships, the connections of colleagues and neighbors and community-members to each other.  They can represent the relationship of a fan and a celebrity, two candidates running against each other, the people of one nation and the people of another.  The Lovers represent any human connection.  They can even represent our connection to ourselves.

I said before that Carolyn Forche’s poem made me feel ashamed of myself.  I knew about the existence of good and evil from a young age; I have a collection of books about genocide that I began building in high school.  How could I have even a glimpse of all the suffering in the world and not dedicate my life to healing it?  What good is all the good that I do, if I could be doing more?

The Lovers remind me to forgive: to forgive myself for my imperfections and for the suffering they’ve caused.  It’s not that I think I “deserve” forgiveness.  It’s that I know that only love will give me the strength to keep going, to keep the burden of responsibility secure upon my shoulders.

This philosophical approach to suffering and forgiveness is one of many reasons why I dislike our prison system.  How does punishment teach responsibility, judgment, or love?  By taking away an incarcerated person’s choices we decrease their sense of responsibility and deprive them of the opportunity to practice their judgment.  By separating them from their community and support network we impair their ability to love and be loved.

When I was 13 I made a very bad judgment and physically harmed a classmate I was fighting with.  My “punishment” was court-mandated community service.  I was never once separated from the people who loved me and pushed me to do better.  I volunteered at a shelter and saw the suffering caused by physical violence, which helped me see the consequences of my own actions.  Everyone should be given this chance, especially children, but so many aren’t.

I’m not saying that all we need is love.  Love’s seldom enough on its own and it certainly doesn’t fix every problem or repair every harm.  But it can give us the strength to navigate a world full of suffering and the courage to shoulder the awesome responsibility of personal judgment.  So, when we’re given the choice – and we are given the choice so much more often than it seems – when we’re given the choice, I try to choose love.

I’ve yet to regret that.

The burden of doubt

We often talk about giving people the benefit of the doubt, but seldom talk about its opposite, to the point that no agreed upon phrase for it exists.  The best I could come up with is the “burden of doubt”, which largely applies to courtroom settings.  Even with the help of judicial documents, the phrase is not very popular.

And yet we give people the burden of doubt just as often as we give people the benefit of it.  When I am in a bad mood and a stranger cuts me off, I give them the burden of my doubt as to whether they intended it.  When I am feeling happy and lucky it is easy to give them the benefit of the doubt instead.

It might be better for the world if I could always give the benefit of the doubt to people, but at least fluctuations based on my mood aren’t particularly unfair.  Of course our decisions in these matters are also influenced by things like race, gender, and other kinds of in-group/out-group status.  Racism and sexism are sometimes viciously overt but more often they take the form of giving the benefit of the doubt to men and/or to white people, and the burden of the doubt to women and/or people of color.  For instance, when a black woman complains about the way a match is being refereed.  She acts in a similar way to many white men, but they are given the benefit of the doubt while she is given the burden of it.  A study of political candidates found that “ambiguity boosts support for white male candidates but not for black male candidates. In fact, black male candidates who make ambiguous statements are actually punished for doing so by racially prejudiced voters.”

Our world is filled with uncertainty.  We are constantly deciding whether or not to give people or groups of people the benefit or the burden of the doubt.  But it’s not enough to make these decisions in isolation.  We must look for patterns in how we distribute the weight.

Judgment Above Principle, Judgment After Principle

Principles are really important, and by and large you should try hard to stick to them.  I have tremendous respect for those who have died or gone to jail for their principles.

That said, a principle is just a rule, albeit a highly abstracted and abnormally emotional rule.  And it is important not to follow rules blindly but to consider whether they apply in a given situation.  It is rare that a principle applies in all situations for a given person (how many people truly would never kill, even in self defense?) and it is impossible for a principle to apply in all situations for all people.  So you have to use your personal judgment.

This doesn’t mean “oh, whatever, just go with your gut”.  But it does mean “I have thought deeply about this and weighed the various principles and factors involved and this is what my gut says”.  Hence the title of this post*.  “Judgment Above Principle”: aka personal judgment is more important than sticking to principles.  “Judgment After Principle”: aka personal judgment requires a thoughtful consideration of principles.  It is not a rejection of principles but a transcendence of them.

This post on Emptywheel highlights a great example of putting judgment above principle:

Marcy’s post was not primarily about the investigation into the Russian interference in the 2016 election, though that is what has gotten a lot of the attention. What she was really talking about was the practice  — or should I say “malpractice”? — of journalism. Woven into the entire post, Marcy laid out how she wrestled with a very basic question: What do you do, as a journalist, when a confidential source lies to you?

I highly recommend reading both Marcy Wheeler’s original post, Putting a Face (Mine) to the Risks Posed by GOP Games on Mueller Investigation, and Peterr’s analysis (linked above).

* The post title is also a play on a paper I was co-author on.  It’s not really relevant to this post, except as a reminder that I’ve been obsessed with morality for a while.  😉