This is not an essay about Donald Trump. But I can think of no better illustration in one picture that is evocative of the core lesson of this essay than a picture of Trump arguing. Trump arguing is America arguing, and America is, of course, arguing with itself. If Trump were an attorney there would be no need for further qualification. What is extraordinary is that he is not an attorney and is hated and feared by the Washington DC establishment. Yet his popularity is unquestionable and in a unique way he is voicing plainly what many Americans think goes unsaid, but not undone by attorneys who know more than any of us, exactly how to measure their words in public. So today I am thinking about how attorneys have become a very powerful class in America and what kinds of things should be done about it.
The thing that I remember an attorney tell me why lawyers will always make money in America had nothing to do with the number of laws. There's nothing particularly avaricious about us. We are not 'litigious', but here's a double quote just to kick off the wrong tangent.
Most humanities students are familiar with Alexis de Tocqueville's Letters from America. More people should read J. Hector St. John de Crevecoeur's Letters From An American Farmer. For example, de Crevecoeur writes about 1784 South Carolina:
The three principal classes of inhabitants are, lawyers, planters, and merchants; this is the province which has afforded to the first the richest spoils, for nothing can exceed their wealth, their power, and their influence. They have reached the ne plus ultra of worldly felicity; no plantation is secured, no title is good, no will is valid, but what they dictate, regulate, and approve. The whole mass of provincial property is become tributary to this society; which, far above priests and bishops, disdain to be satisfied with the poor Mosaical portion of the tenth.
I appeal to the many inhabitants, who, while contending perhaps for their right to a few hundred acres, have lost by the mazes of the law their whole patrimony. These men are more properly law givers than interpreters of the law; and have united here, as well as in most other provinces, the skill and dexterity of the scribe with the power and ambition of the prince: who can tell where this may lead in a future day? The nature of our laws, and the spirit of freedom, which often tends to make us litigious, must necessarily throw the greatest part of the property of the colonies into the hands of these gentlemen. In another century, the law will possess in the north, what now the church possesses in Peru and Mexico. (full text available)
Whatever. People are petty. If Americans seem litigious it's because we have access to lawyers. Americans aren't 'drivey', we just have access to cars and roads. Anybody with this infrastructure would do road trips. But we have developed a culture around road trips and so some marketing dork of a genius just puts 'Great American' in front of whatever nouns and then Americans believe they're special. I don't think so; we just have easy access, baby.
This morning I did something that I quit doing long ago. I went to an anonymous meetup. You know, one of those places where people who have no kids to tend go to get nerdy about some subject in that particular way. What was the quote about fanatics? They can't shut up and they won't change the subject. Meetups are where they listen to people who are articulate go on, so they get to shutup for a moment and let someone else bloviate. But like all such meetings, there are always fascinating people to meet somewhere in the Venn of interesting circles. So I can always get some satisfaction. And since I came up with the idea of calling cards, I can connect with whom I choose. All of the above is a rather cranky and rude prelude.
I don't think Americans hate their institutions. I think Americans hate the fact that their institutions don't do what their fanatic civic organizations (read community activists) want them to do. IE suppress other Americans. Yes. Americans hate other Americans, and every reform minded citizen who stands up in a town hall has a particular stereotypical class of Americans they really hate. Oh sure, they'll use codewords like 'Wall Street' or 'inner city' or 'special interests' or 'Prison Industrial Complex' or 'diverse' or 'white' or 'LGBTQ' for the objects of their love or disdain, but I truly think there is this giant slow motion thrash of initiatives that democratically initiates and sustains tribal warfare. Of course it's all about the law. "We don't hate them, we just think what they are doing is criminal."
So. I think only professionals climbing their professional ladders are really interested in reform. Most everyone els just hops onto a reform agenda in order to pursue their fellow distrusted Americans. Police reform means we don't really hate cops. Education reform means we don't really hate teachers. Everybody is just sorting out the terms by which they can line up their lawyers and get what they fucking want. It really all comes down to that. Who's ass do I have to sue around here to get some satisfaction?
Here's the point at which I point out that some of my tribes, the hacker and the database tribes, are at odds with the legal and political tribes. Because, really when we say open source, we mean it. But when lawyers and politicians say 'transparency' they actually mean, yeah except for attorney-client privilege. You got to respect balls that big. Then again that makes them easy to kick, if not squash. So where we are in the desert of the now is in the prelude to the battles and the ultimate war between these two professions. Now in all fairness, 'open source' doesn't mean jack if you can't read,interpret and write code, just as civil rights doesn't mean jack if you can't read, interpret and write law. You have to trust us professionals and see what tools we use to preserve ourselves. (Because when we are climbing our ladders we are really interested in reform). What laws do attorneys use? What code do programmers use? Where do real estate agents live? Where to investment bankers invest? What kinds of guns do Navy SEALS use to protect their families? Now you're getting the picture. People don't generally expose their vulnerabilities, but they do overuse their strengths at inappropriate times. My point here is that I don't trust the headlines of political activist reform so much as I trust the IT guy with the data. And when I know the IT guy doesn't have the data I know that the bureaucracy stinks. It's not the institution is corrupt, but that it is incapable of having integrity because everybody is pulling answers out of their asses.
Which is why political activists talk about MLK. They don't have any new black data beyond what everybody learned in public school. They have a baseline. They have extraordinary headlines. They have a friend of the court brief for US vs Somebody. This is the problem of awareness. You have to fundamentally understand that most of society runs on conventional wisdom and narratives and extraordinary headlines and test cases. As somebody smartly pointed out today, Virginia vs Loving had a very very handsome couple represent 'interracial marriage'. People remember the extreme cases because they don't have systems of accountability. Systems of accountability is what the database tribe is all about. Meaning you trust the system, not the people. When there is no system, who do you trust? You gotta trust somebody.
Or you could just shutup and mind your own business. But people are petty.
So smart people use examples and exemplify their narratives of justice along fairly predictable lines, especially the ones about the credibility of the persecuted. No one is quite so honest as the activist who has an FBI file, right? Nobody knows so much about the racism of our country as the unarmed man who gets shot by cops, right? Nobody knows so much about the evils of the rich as the poor homeless woman who lives on Skid Row, right? It's difficult not to go all in on the 'reform' programs out there. I mean if it's true what they did to Snowden, how much more true is it that the average Joe has no chance against Big X? Well, yes it's true that the average Joe has not chance against Big X. But Big X is not really interested in Joe, and the chilling effect doesn't apply. If the chilling effect were actually hegemonic, nobody would try to do teach-ins, because college students wouldn't show up. But like teenaged boys who cannot resist a dare, people who are smarter than the average bear who are not actually dutifully burdened with the care and feeding of babies of their own cannot resist an opportunity for reform. It's nothing special about Americans. We just have lots of access to political activism. And free time.
It's difficult for me to take seriously people who are solely focused on First Amendment rights who ignore or defy the Second Amendment. I try not to be obnoxious about this. The reason is because I'm the kind of person who is unpredictably friend or foe, and generally too forthcoming to be ignored. I understand that Americans just hate other Americans, and I take with great respect the passive-aggression of institutional reform. I don't want to get in people's face and reveal myself to be their enemy. It is sad but true that the great majority of us don't understand the rules of debate and philosophy, we just know our tribe's codewords for the enemy. As James Baldwin said, to be committed is to put oneself in danger. I'm the one who would be very happy carrying a gun every day, (if it weren't for those meddling kids!). So as I said with Ferguson, I have a great deal of doubt that people were actually ready to shoot back at the cops. If they were that deadly serious, then they would be that deadly serious. But instead, everybody just went to find their lawyers and figure out who they had to sue. Or made sure that somebody with a high definition recording device captured the symbolic gesture of their arrest. Or dropped a few soundbites for the press release, all in legally unimpeachable rhetoric. That all sustains the headlines and extreme cases because nobody in Ferguson had systems of accountability. Which means of course that all of these political symbols were pulled out of somebody's ass. When is the last time you heard about what the police in Ferguson are doing? I didn't think so. Right. Nobody really wants to shoot. We are not actually so deeply considerate that we know exactly how to use our faculties and make that level of serious decision. Of course I use the term 'we' very loosely, what I really mean is that most people are not ethically clearheaded enough to decide what to do without an attorney present. But most people feel at bottom that they would never shoot, but damned well will sue. When it comes to the use of force, most people are quite prepared to lawyer up and go for broke, over petty shit. Which they wouldn't have to do if the accountable systems were out there.
One of my tribes is, of course, the Grey Tribe. If you don't know Bill Whittle, then I do need you to do some homework. Apparently, the term 'Grey Tribe' itself may be getting watered down. What I mean is 'Sheepdog'. I mean the tribe of people who swear oaths to defend against the wolves of the world. And so if I need to qualify my distaste for those for whom the First is all and the Second is nothing, understand that I neither long for a showdown, nor have any doubt who will win if it comes to that. If you are of a mind to sue the NSA or go all in with your lawyers against the FBI or the LAPD, understand that I will say and mean 'all power to you'. Again, it's already priced into the equation about who are the sheepdogs and who are the sheep. Even if you think the LA Sheriffs are the wolves. Go for it. But that's like Harry Potter scraping against Snape. It's just a sad, misdirected waste of time. But you can smell that kind of activism a mile away, can't you? All the more sad for not teaching the public how to read the law.
I will like to see much more focus in the public on the duty, function and challenges faced by the judiciary. It is very rare that you hear any attorneys speak out of school in such matters. But it is from that direction I would propose collaboration between my data tribe and the LSAT crowd. Why? Simple. I have a great deal of faith in the Grey Tribe and the intentions if not the bureaucracy or ultimate capability of those sworn to protect and serve. I know that I am safer knowing what cops know. I understand what I can do for myself. Such matters apply in a great American tradition. So I hate to see the public incited to distrust those just across the thin blue line as they do nothing that is not sanctioned and understood by every lawyer in every courtroom where every real bit of justice in America is produced. In other words, if you're going to go all populist and angry, you'll be much more successful beating up judges and lawyers than beating up cops. A country that beats up its sworn officers ends up with a Taliban. There are no two ways about it. But this is something I wouldn't expect many people who only think about escalation of legal forces rather than violent forces to immediately recognize. Taking for granted that the ACLU will be right most of the time is like taking for granted that Microsoft will be right most of the time. But how would the public know if it can't read the code? Yet, this is the advantage of the clever folks who do activism. They can read the law.
What everybody else can do is read the internet. Which is why some collaboration between those who do the bro coding of Node.js can do to make the most improbably arcane facts look interesting. I suspect they will, with a little prompting, compile some statistics that help us all understand exactly which prosecutor decided to let exactly which dirty cop slide under exactly which judge's oversight. And count how many. You know, make these extraordinary headline claims accountable in systems that count such things all the time? I think we're going to go way down the line towards panoptics, trusting machine intelligences and analytic systems before we just shutup, go home, mind our own children and trust people. If we trusted the people, if we trusted the professionals, we wouldn't have activists so much. But if we're going to trust activists to get legal and policy decisions, the only way they are not partisan is if there are systems of accountability in the middle. And as they said in the musical Hamilton, you can't put out the fire from inside the burning house. That's where the IT crowd comes in, and for a time, disrupts the symbolic manipulations of the attorneys who fight other attorneys.
As you can see, I am predisposed to believe that leaving it all to the lawyers is a big mistake, but only because there is not enough IT in the house. It is not a matter of principled standing against the law or against its practitioners. We simply haven't made it easy enough to give Americans access to the systems of accountability throughout the Judiciary. I've said it multiple times here and elsewhere that it is a stunning fact that the best information Americans have about officer involved shootings has come from the GuardianUK, a British newspaper. Somehow, the FBI, NYT and ACLU have been outdone. The FBI has no good presentation layer coders like the NYT does. The NYT has no editorial reason to get the facts like the ACLU does. The ACLU thinks it's doing its job when it raises enough money to hire a pitbull attorney, pleasing as it does its upper middle class liberal constituency. Americans will do better, eventually, when the IT community makes it easy to see systems of accountability.
Then knowing how many cases actually go to trial vs arrests made by cops will be easy as pie to see, in your zipcode. You'll want to know, because you're petty too.