Double Jeopardy by Any Other Name …

… is still double jeopardy. The Constitution — as interpreted to date — still allows double jeopardy, despite the Fifth Amendment. A case in point is the federal indictment against Derek Chauvin (and other ex-Minneapolis police officers):

The Biden DOJ has indicted former police officer Derek Chauvin and three other former Minneapolis police officers on federal civil rights charges for their roles in the death of George Floyd.

The indictment alleges that Chauvin, along with J. Alexander Kueng, Tou Thao and Thomas Lane violated Floyd’s rights when they saw him lying on the ground “in clear need” of medical attention, but instead “willfully failed to aid Floyd, thereby acting with deliberate indifference to a substantial risk of harm.”

This is essentially an indictment of Chauvin for the same actions that led to his arrest, trial, and conviction under Minnesota law.

I call a foul. This isn’t a new, pro-Chauvin call. I’ve held this position for many years. It’s documented (among other places) in a page that I published almost five years ago, “Constitution for the 21st Century“:

8. A citizen of the United States may not be:…

b. brought before a criminal or civil court to answer for the same act or acts that had been judged previously, under any rubric of law, by any criminal or civil court of any State or the United States;

I wrote that, despite the fact the O.J. Simpson — who was wrongly found not guilty of the murder of his ex-wife and her friend — was later found responsible for the murders in a civil trial. Which just goes to show how fair-minded I am.

O.J.’s Glove and the Enlightenment

The Enlightenment

is not an historical period, but a process of social, psychological or spiritual development, unbound to time or place. Immanuel Kant defines “enlightenment” in his famous contribution to debate on the question in an essay entitled “An Answer to the Question: What is Enlightenment?” (1784), as humankind’s release from its self-incurred immaturity; “immaturity is the inability to use one’s own understanding without the guidance of another.” Expressing convictions shared among Enlightenment thinkers of widely divergent doctrines, Kant identifies enlightenment with the process of undertaking to think for oneself, to employ and rely on one’s own intellectual capacities in determining what to believe and how to act. Enlightenment philosophers from across the geographical and temporal spectrum tend to have a great deal of confidence in humanity’s intellectual powers, both to achieve systematic knowledge of nature and to serve as an authoritative guide in practical life. This confidence is generally paired with suspicion or hostility toward other forms or carriers of authority (such as tradition, superstition, prejudice, myth and miracles), insofar as these are seen to compete with the authority of one’s own reason and experience. Enlightenment philosophy tends to stand in tension with established religion, insofar as the release from self-incurred immaturity in this age, daring to think for oneself, awakening one’s intellectual powers, generally requires opposing the role of established religion in directing thought and action. The faith of the Enlightenment – if one may call it that – is that the process of enlightenment, of becoming progressively self-directed in thought and action through the awakening of one’s intellectual powers, leads ultimately to a better, more fulfilled human existence.

The Enlightenment’s great flaw — probably fatal to Western civilization — is found in the contrast between the two passages that are highlighted in bold, italic type. I will not go on at length about the Enlightenment because I have addressed it elsewhere, directly and by implication (e.g., here, here, here, here, eighth item here, here, here, and here).

Suffice it to say that the Enlightenment is fixated on “reason”, which all too often is flawed logic applied to false “facts” and piled upon prejudice. It rejects, when it does not ignore, the wisdom that resides in tradition. It scorns the civilizing norms represented in tradition, norms upon which liberty depends, despite the false and contrary “logic” of “enlightened” thinkers like John Stuart Mill.

Here is an apt passage from Richard Fernandez’s review of Michael Walsh’s The Fiery Angel:

Deleting God, patriotism, heroic myths and taboos and all the “useless stuff” from Western culture turns out to be as harmless as navigating to the system folder (like C:\Windows\System32), “selecting all,” and pressing delete. Far from being clever, it leads to consequences far greater than anyone anticipated.

The Enlightenment reminds me of O.J. Simpson’s bloody glove. A single “fact” — that the glove seemed tight on O.J.’s hand — was instrumental in the acquittal of Simpson in the murder of his ex-wife and a friend of hers. This sliver of unreasonable doubt obscured the overwhelming evidence against Simpson. Later, he was found responsible for the murders in a civil trial, and then all but admitted his guilt in a book.

And so it is with “reason” and Western civilization. The pillars that have supported it and given it great economic and social strength are being destroyed, one at a time. Each move, as it is made, is portrayed (by its advocates) as “logical” and “reasonable” — and even consistent with liberty.

As I wrote 11 years ago,

Robin Hanson makes a mistake [here] that is common to “rationalists”: He examines every thread of human behavior for “reasonableness.”

It is the fabric of human behavior that matters, not each thread. Any thread, if pulled out of the fabric, might look defective under the microscope of “reason.” But pulling threads out of a fabric — one at a time — can weaken a strong and richly textured tapestry.

Whether a particular society is, in fact, a “strong and richly textured tapestry” is for its members to determine, through voice and exit. The “reasonableness” of a society’s norms (if they are voluntarily evolved) should be judged by whether those norms — on the whole — foster liberty (as explained here), not by the whether each norm, taken in isolation, is “reasonable” to a pundit inveighing from on high.

UPDATE (11/01/07): Hanson has updated his post…. But he digs himself a deeper, rationalistic hole when he says

I’ll now only complain about [Russ Roberts’s] bias to hold his previous beliefs to a lower standard than he holds posssible alternatives.

He should complain, rather, about his own, too-easy willingness to reject the wisdom of inherited beliefs on the basis of statistical analysis.

The Age of Enlightenment is the age of empty logic and the nirvana fallacy.


Related reading: Nathaniel Blake, “Why Reason Turned Into A Dead End For Enlightenment Philosophy“, The Federalist, September 24, 2018