People harbor mental models of rules. Sometimes these models can lead the unwary to draw wrong conclusions, or to overlook features of precedent.
~~ Barbara Baum Levenbook [1]

The Abuse of Discretionary Justice

In "Living in the PSA (Police State of America)", Russ Kick offers an attack on two decisions by the Wisconsin Supreme Court that created a "slippery slope" to an encroaching police state. A 22-year old man was jailed for ten years, in an Ohio case, when a probation officer discovered a private diary that contained child pornography. The man was jailed under state obscenity laws, despite the facts that the diary did not contravene the probation order and was obtained by police during a no-knock raid for marijuana. The Wisconsin Supreme Court also upheld a 1999 circuit judge order, that forbade a Wisconsin man who fathered nine children by four mothers and who was unable to pay child support, to have any further children until 2004.

In the same indignant vein, Kick points to the disturbing possibility that potential parents who are unemployed, live below the poverty line, or who are drug dependent, may be stripped of their "privilege" to have children. He cites the very convincing dissent by Justice Possner and Chief Justice Shirley Abrahamson that the Ohio case decision overturned 80 years of legal precedent by establishing a "good faith" exception. Kick portrays these decisions as the forerunner to the kind of nightmarish scenario to be found in dystopian science fiction.

Kick's argument should receive the sympathetic attention of activists who are concerned when the State targets despised groups, in order to establish discriminative precedents that are gradually widened in scope. His books and Alternewswire site catalogue the abuse of legal positivism by those not constrained by clear rules. Kick’s call to focus on the US Supreme Court is doubly poignant after the 12 December 2000 ruling that handed the presidential election to George W. Bush, whose administration has championed a revitalized role for faith-based charities and other social institutions at a "mythic membership"-level. His arguments are worth considering because they convey the fears of many people, and reflect a position on "legal positivism" that is increasingly being held.

Yet although I agree with Russ Kick's view that the Wisconsin decisions have created two dangerous precedents, I respectfully disagree about the implications of the choice between State-imposed rules on the one hand and individual rights on the other. A critique of Kick's reasoning might produce self-reflection about the moral foundations of autonomy and how legal reasoning is applied by the judiciary to guide self-conduct. It might also amplify some current problems within conspiriology and parapolitical discourse.

The Rebellion Against Individualism

Many of Kick’s concerns are rooted in the American belief that the primary goal of justice is fairness to individuals, enshrined by Enightenment "social contract" theories (Hobbes, Locke, Rousseau) and US Constitution interpretations. The Enlightenment tradition imparts the individual with "unalienable rights" which conflict with group will and the bureaucratic institutions of the nation-state, a conflict most evident in the realms of personal autonomy and family law.

This conflict is further obscured when viewed through the lens of the bipolar political spectrum: the progressive left ascribes the roots of inequality to social structures, the conservative right links them to self-progress, and the religious right uses the rhetoric of "family values" as a guise to impose its moral guidelines on a secular society that undermines its very worldview.

Kick warns against the resurging specter of eugenics and 1920s America's enforced sterilization laws that were the blueprint for Nazi Germany’s depopulation pogroms. ". . . the unavoidable implication is that the State has now declared it can strip a person of the right to have children. You may feel they did it for a good reason, but there's always a "good" reason to deprive us of our rights," Kick wrote me in a private e-mail when I offered a contrarian view, ". . . if you're going to start forbidding people from having kids because of the well-being of the child, you've just opened a Pandora's box. Then why not forbid the poor and drug users from having kids? Why not the mentally disabled? Why not go back to the mandatory sterilization laws of the 1920s/1930s in the US? Those were done for the "good" of the children that would've been born to the "feeble-minded" and for the "good" of society as a whole. By allowing the State to forbid even one person from having children, you've just set foot on an extremely slippery slope."

Kick points to an important "historical wildcard" within US history. His argument in the context of the Wisconsin decision, however, is much more convincing than the case's legal reasoning may indicate.

The Misunderstood Power of Precedents

When a court creates a precedent, it shifts "decisional jurisdiction" away from the general public to judicial officials. [2] This shift creates anxiety for the powerless, especially when a precedent carries the psychological power of "exemplar force": do-as-society-does-or-get-away-with-it. [3] But the prevailing view in US libertarian circles that court precedents establish rules, set by officials, which can only be followed by applying the rule, is mistaken. Precedents establish examples to offer a guidepost for individual conduct in society [4], and are interpreted by judges in the context of the case at hand: "Why is this precedent relevant? What is the same about the precedent and the case, and what is different?" Litigating attorneys decide from the case narrative what is important and relevant. [5] An appellate judge will often expand, limit, prune, reframe or even strike down a decision from a lower court, especially if the language is too broad or narrow. Judicial decisions often reflect the political and social values held by the wider community, and because these decisions are made public, they are subject to scrutiny by the legal fraternity and an ongoing process of social salience. Interpreting the long-term implications of a case decision also means discerning the conceptual categories by which the judge sorted the facts and deeper issues, categories that may be over-inclusive, under-inclusive, or irrelevant.