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Immoral v. Illegal

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Richard Cohen has this column in the WaPo lamenting the "lynching" of Anthony Weiner.  What I find interesting is what the column reveals about Cohen's view of the line between the illegal and the immoral.
Classifying people as "liberal" or "conservative," nearly everyone knows, is overly simplistic.  There is also another dimension that might be labeled "libertarian" v. "state control."  That may or may not be orthogonal to the liberal-conservative dimension, but it is certainly not the same.  It is actually even more complex than that, but I'll leave the details to another post.

An attitude I often hear implied, if not expressed, by people of both liberal and conservative bent is that the government should prohibit any act that is wrong.  A corollary is that if government does not prohibit an act you have a "right" to do it, meaning no one should criticize you for doing it.  I very much disagree with that, but Cohen seems to buy it.

Cohen says there are no victims of Weiner's misconduct, curiously failing to even mention his wife.  Then he says this (emphasis added),

In fact, there are victims. One is due process, which envisions a procedure other than a lynch mob for Congress to rid itself of a miscreant. Another is common decency, which means you stand up for someone who's done no legal wrong.
Huh?  Since when does "common decency" require standing up for someone who has committed acts that are not prohibited by law but remain profoundly immoral? In Cohen's view, apparently, if an act is not illegal then a person should be not be socially stigmatized for it, and decent people should rally to his defense if he is subjected to social rebuke.

Baloney, IMHO.  For example, take yesterday's post on holocaust denying (or, as a commenter at VC points out, holocaust minimization).  The bishop in question would have "done no legal wrong" if he had said the same thing in the United States.  If the church decides to remove him from his post, would "common decency" require us to "stand up" him, as Cohen seems to think?  Quite the contrary, most decent people would applaud the action.

It is when acts are immoral but not illegal that social pressure is most necessary.  It is not within the capacity of government to punish all the nasty things that people do, even if it were constitutional.  The effective restraint is for people who do nasty things to suffer social consequences.  That includes social stigma.  It includes being fired from your job, in some circumstances.  Indeed, with effective social restraints, there will be less demand for government controls of dubious constitutionality.

Adultery is considered immoral in most societies.  In Gallup's moral acceptability survey last May, "married men and women having an affair" was judged morally wrong 91-7, the highest level of agreement of the 17 issues polled.  They didn't poll about a married man tweeting pictures of himself "in a discernibly turgid state," see Barnes v. Glen Theatre, 501 U.S. 560, n. 2 (1991), and this kind of digital quasi-affair might produce a somewhat lower level of agreement.  Even so, I think it is fair to say that most married people would be horrified to learn their spouse had engaged in such activity, and most people would consider it deeply immoral if done without the spouse's knowledge or consent.

So, no, Mr. Cohen, common decency does not require standing up for people who commit legal but blatantly immoral acts.  Just the opposite.

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Richard Cohen is capable of occasional insight, but more frequently he's doing sub rosa apologia for some liberal caught behaving badly. Maybe he thinks we should toss roses at John Edwards too, since he was merely stepping out on his cancer-stricken wife. Wouldn't want to be, ummmm, prematurely judgmental, ya know. "Due process" and all.

Oddly, I don't recall seeing anything from Mr. Cohen denouncing the public's having an opinion about Edwards' non-crime. (And it was, standing alone, not a crime, regardless of the possible criminality of later using donated funds to cover it up). On the other side, I don't recall Cohen coming to the defense of the not-so-faithful Sens. Vitter or Ensign when they were attacked by his "lynch mob" pals in the Washington press. But those guys are --ugh! -- Republicans. Lan' sakes alive!

Cohen's "analysis" gives itself away almost immediately, and -- as often happens -- simply by the wording it uses. Thus, Cohen says, "...there are victims. One is due process, which envisions a procedure other than a lynch mob for Congress to rid itself of a miscreant."

Note that Cohen omits what due process actually DOES envision. He slips right by the fact that due process is a legal concept. It "envsions" following rules created by a formal, legislative or judicial process for determining a legal result, one that is followed by court-imposed consequences.

Evaluating news about the behavior of elected officials whose salaries the citizens' taxes pay is not a legal process, but it's certainly a worthwhile one. What's the alternative? That citizens NOT evaluate the behavior of those they elect? Upon what, then, should they decide how to vote next time? On whether their Congressman has managed to stay one step ahead of jail?

And then there's Cohen's familiar linguistic invocation of the "lynch mob," although the worst that actually happened was that a bunch of reporters stuck microphones in front of Wiener's face -- a happening that, in any other context, a publicity-hound Congressman like Wiener would pay good money to bring about.

Lastly, Cohen to the contrary, Congress did not "rid itself of a miscreant." It could have, by activating exactly the due process rules for removal that Cohen so longs to see employed. The reason it didn't is that WIENER HIMSELF SHORT-CIRCUITED THE PROCESS by deciding on his own to resign. No one forced him to, and his own leader, Nancy Pelosi, specifically declined to demand a resignation.

Wiener had, of course, initially refused to resign. He changed his mind, not when some "lynch mob" appeared, but when it came out that his behavior was a bit more than he had owned up to -- to wit, that he had, in addition to his numerous other follies, been texting messages to a teenager.

It's not a crime merely to lie, as Wiener did repeatedly and belligerently. It's also not a crime for a married man to send pictures of himself in his underpants to numerous women. But Richard Cohen to the contrary, such behavior is something a Congressman's constituents (and the rest of us who provide his Congressional perks) have a right to judge.

To the extent Cohen is using "due process" as shorthand for "fair play," he's simply trying to palm off as a revelation what everyone already routinely accepts. By deliberately invoking a legal phrase in a cultural context, he's trying to snooker us into being ashamed of making an assessment that (a) we have every right to make and (b) Wiener's behavior not merely invited but demanded.

Yes -- hello! -- everyone deserves fair play. Where Cohen fails is in his effort to show that Wiener got anything less. There was no rush to judgment here, and no decision without evidence. Exactly the opposite was true. The evidence was disgustingly abundant, and Wiener acted on his own schedule, not ours.

What's shameful is not the public's making a judgment about Anthony Wiener, but Cohen's McCarthyite efforts to bully us into a buttoned-lip, boys-will-be-boys-so-shut-up silence. We have a right to demand of our public servants that they be better behaved than merely staying out of the slammer. This right is not Richard Cohen's to give, and still less his to take away.

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