Judge Napolitano Smacks Down John Stossel

“Extremism
in defense of liberty is no vice! And . . .
moderation in the pursuit of justice is no virtue!”

~ Barry
Goldwater, in speech written by Karl Hess

A recent
discussion on the Fox Business channel, amongst John Stossel,
Stuart Varney, and Judge Andrew Napolitano, has raised, once again,
the empty charge directed at libertarians: “you are being
an extremist!” Such words are always offered in lieu of a
substantive analysis of the position advocated. That both Albert
Einstein and Jeffery Dahmer could be labeled as “extremists,”
by virtue of how far their thinking deviated from some norm, provides
us no basis upon which to evaluate their thinking or conduct.
Intelligent minds would ask: by what criteria do you judge these
men; what are the implications of what each is doing or
saying? That so many scientists who contributed to the development
of our understanding of the world had to endure such criticism,
should cause us to insist upon a standard of evaluation that rises
above the simplistic thinking presently in place.

These three
men were debating the wide-ranging NSA surveillance practices
recently revealed by Edward Snowden — whose actions have led statists
to label him an “extremist,” among other charges.
When Judge Napolitano insisted that the government should be required
to adhere to Fourth Amendment standards and procedures, Varney
— the moderator of the program — began accusing the good judge
of “extremism.”

But how does
one define “extremism”? Is there a standard by which
we can make intelligent distinctions, or is the word only intended
as a polite form of name-calling? Words are but abstractions and
require interpretation, no matter how certain we feel that our
subjective sense allows us to overcome the difficulties that often
attend defining them. Supreme Court Justice Potter Stewart’s famous
admission to the difficulty of defining “pornography”
nonetheless led him to conclude “I know it when I see it.”
Does Mr. Varney’s charge of the good judge being an “extremist”
amount to anything more than his stating a preference for his
preferences?

Explanations
for the inability of people to employ a reasoned analysis in their
thinking are to be found in institutions of learning. One criticism
directed at the government schools is that they do not do an adequate
job teaching students how to pass the tests such systems use to
evaluate themselves. In this sense, schools — including universities
and graduate schools — are more in the business of certifying
their students to the next level at which they are to perform
than helping them learn to become independent thinkers capable
of engaging in principled, factually-supported analysis. In performing
this certification role, schools engage in the circular process
of certifying themselves. “See, 83% of our students passed
the test that we taught them how to pass!” In law schools,
this helps to explain the preoccupation with bar exam results.

When a school
system’s emphasis shifts from helping students learn how to
think, to teaching them what to think, the dumbing down
process is well under way. The principal failure of the education
system is not reflected in the fact that most students
cannot identify the kinds of information easily found in a Google
search, but that they cannot analyze the meaning of such empirical
data. An honor student may correctly answer that the Hundred Years
War was a series of 14^th and 15^th conflicts
between England and France; that same student may give you a blank
response to such follow-up questions as what were the causes
or the consequences of this war?

Persons who
were educated in the rote methods of the institution-serving schools,
tend to be very weak in the skills of intellectual analysis. Being
unable to intelligently evaluate a particular proposition, they
may resort to public opinion polls, or the pronouncements of a
recognized authority for direction. They may also fall back on
the “extremism” charge when confronted with a point
of view they are otherwise unable to analyze.

The contrast
between these two approaches is evident from Judge Napolitano’s
discussion with Stuart Varney. The judge’s criticism of the NSA’s
ubiquitous, unconsented surveillance of everyone was grounded
in principles from which he reasoned. He quoted the Fourth Amendment,
which has a narrowly-focused exception to the general rule that
people should be “secure . . . against unreasonable searches
and seizures,” an exception that requires the government
to go to court and seek a warrant against specific persons, at
specific locations, identifying the specific items to be seized.

In making
this argument, the judge is being accused of engaging in what
is rarely taught in modern schools: the art of implicit thinking.
It is not just that the state is engaged in actions wrong
in themselves, but that the acceptance of such behavior can lead
to even more serious consequences. If Uncle Willie drinks a quart
of Scotch every day, cirrhosis of the liver is implicit in his
habit. Does this mean that he will develop this disease?
The study of chaos tells us “no,” that outcomes associated
with complex systems are unpredictable. It does mean, however,
that his addiction will greatly increase the likelihood of his
developing cirrhosis. As such, on the first day that Willie consumes
his quart of Scotch, he should understand that the destruction
of his liver is implicit in what he is doing, and not just assume
that each additional day stands on its own, unaffected by what
has preceded it.

If, on one
occasion, a police officer brutalizes a harmless individual, does
that mean that a police-state has arisen? No, but intelligent
minds should recognize that such totalitarian consequences are
implicit in such an act, and should respond accordingly. I am
reminded of that powerful scene at the end of the movie, Judgment
at Nuremberg. Judge Haywood (played by Spencer Tracy) has
been called to the jail cell of the Nazi judge (played by Burt
Lancaster) who has just been given a life sentence for his crimes.
The convicted judge tells Judge Haywood: “Those people, those
millions of people. . . I never knew it would come to that.”
Judge Haywood replies: “it ‘came to that’ the first time
you sentenced a man to death you knew to be innocent.” This
is a poignant example of “implicit thinking.” If you
doubt that one atrocity, indulged in and sanctioned today, does
not have implications for the future, ask the ghosts of Auschwitz,
Buchenwald, Dachau, Treblinka — and the hundreds of other Nazi
concentration camps — whether critics of such systems were being
“extremists” for warning of the likely consequences!
A more dramatic expression is to be found in Judge Haywood’s explanation
of the court’s ruling at the end of the movie. His words may help
us to understand the implications of the present behavior of the
American state.

Implicit
thinking requires a standard by which to judge the propriety of
one’s actions. Judge Napolitano used language from the Constitution
as such a standard, but other principles could be employed as
well (e.g., the inviolability of the person or property of individuals).
Having a norm by which to measure one’s response to state action
is a necessary means for engaging in an intelligent, reasoned
analysis. Without such a principle, one is left with frenzied
ranting, name-calling, or empty rhetoric such as accusing another
of “extremism.”

How does
one learn this art of implicit thinking? It is evident that such
skills will never be a part of the curriculum of government schools.
Their job is to condition young minds in the establishment mindset,
a purpose wholly inconsistent with the development of critical
thinking. There is nothing so annoying to the state’s conditioning
academies as children who keep asking questions. The word “why?”
— and the independent thinking that underlies it — is a constant
challenge to a system that has no standards that would appeal
to curious minds. The child who persists in questioning what is
being taught may soon be labeled “hyperactive” or having
an “attention deficit disorder” and be subjected to
therapies or drugs to overcome his or her resistance. The words
of the late Steve Jobs come to mind, in discussing his response
to elementary school: “I encountered authority of a different
kind than I had ever encountered before, and I did not like it.
And they really almost got me. They came close to really beating
any curiosity out of me.”

How does
one help children develop the skills of implicit thinking, and
avoid the indoctrination that trains one to become a servo-mechanism
of the corporate-state? In his 1976 book, The Uses of Enchantment,
psychologist Bruno Bettelheim discussed the importance of fairy
tales in helping children deal with the kinds of fears that are
so much a part of growing up. In the course of reading and finding
meaning in such stories, children would experience the kind of
emotional development necessary to the well-lived life.

I believe
that such stories — and the processes of questioning that accompany
their reading — can help children learn to think implicitly. Fairy
tales are often presented in terms of black-and-white contrasts:
the consistently “good” guy up against the “villain”
who is beyond the possibilities of rehabilitation. The purpose
of making such sharp comparisons is not to make children
aware of how people necessarily behave in the world, but to provide
standards with which to evaluate human conduct. Are all
children as sweet and innocent as Hansel and Gretel, or as loving
and considerate as Little Red Riding Hood? Are step-mothers all
mean? Hardly. These stories are not offered as psychological or
sociological studies, but as clearly defined criteria by which
to make judgments.

One
of my favorite children’s stories is The Little Red Hen,
but I detest those modern corruptions of the tale in which the
Red Hen gives in to all the free-riders and allows them to share
in the product of her labors. There is an important lesson for
children to learn from Ms. Red Hen, which goes far beyond the
modern simple-minded standard of “niceness” that seems
to limit the judging of human conduct. The story informs children
of what, in a welfare-dominated world has long been forgotten:
not only are there consequences to our actions, but precursors
for the attainment of what we enjoy. The bread that the Red
Hen produced — and the moochers now want to enjoy — came about
only through her willingness to incur all of the costs necessary
to create the bread. This is the meaning of Milton Friedman’s
now classic observation: “there’s no such thing as a free
lunch.” Someone had to incur the costs of providing
it.

Implicit
thinking has no relevance absent a clear standard by which to
evaluate our thinking and behavior. In order to live as intelligent
adults, children must learn to explore the importance and meaning
of principles that transcend the immediate circumstances they
confront. In the turbulence of a world that is redefining itself
into fundamentally new social systems and practices, our thinking
— and judgments — must undergo major transformations. If we are
to survive — and I believe that we will — we must walk away from
such school playground rhetoric as “if you’re not with us,
you’re against us,” or “America: love it or leave it,”
or “you’re being an extremist.” As Einstein observed:
“We cannot solve our problems with the same thinking we used
when we created them.”