Murder, Mayhem, and the U.S. Constitution

Two years ago, we watched as the Supreme Court in Dobbs v. Jackson Women’s Health Organization overturned the Roe v. Wade decision from 1973—almost half a century earlier—that had sought to create a national right to elective abortion. Many cheered the earlier decision as a cornerstone of women’s rights. Many—perhaps not as many, myself certainly not among them—cheered the more recent decision as a foundational right to life. In my view, the court merely reasserted the nature of the government under which we live and have done so since 1789.

First, let me say that I think women should have control of their bodies. I think that, if a woman is not ready to bear a child for whatever reason, she should be able to have the fetus removed. I also think she should make that decision promptly, so that the infant is not aware in whatever fashion of the removal and does not suffer from it—however many weeks or months that takes into the process of development. Certainly, if a developing child can survive outside the womb, then it should be born and preserved. But I would, in an ideal world, want all surviving children to be born into loving and caring situations with parents or guardians who want them. But this is my personal opinion.¹

My personal opinion, your personal opinion, anyone’s personal opinion is a matter of choice and action. But it is not necessarily the business of the United States government. These United States are a unique creation, unlike almost any other nation in the world. The U.S. Constitution does not, despite what others may think, create a national government that writes “the law of the land” for all citizens, as it does in countries like France and Germany. The federal government was designed, instead, to be the superstructure under which the individual states, fifty of them as of last counting, worked together for their common good.

The Preamble, seven Articles, and twenty-seven Amendments establish a union that recognizes the rights of the various states over all matters not specifically mentioned in the founding document. That original document and its amendments do not replace or supersede the constitutions or charters or whatever other means the states use to govern themselves. The Constitution was intended to create limited national functions that individual states could not undertake for themselves, like providing for common defense against foreign enemies, preserving the borders, establishing tariffs, and maintaining relations with foreign governments. The first ten Amendments immediately forbade certain actions that the government as a whole—both on a national and on a state level—could take but should not: infringe on a person’s speech and religion, deny a right of self-defense, impose unfair trial conditions, and so on. The ninth and tenth Amendments then guarantee that the people themselves might have other rights not therein granted, and that the states have powers not therein listed nor prohibited. Overall, the Constitution is a pretty constrained proposition.

Look high and low in the Constitution, and you don’t find mention of many of the laws that most people take for granted. It doesn’t prohibit you from murdering someone, except in certain circumstances described below. So, the Constitution does not guarantee a universal right to life. It also doesn’t have a rule or regulation about personal assault, or creating a public nuisance, or public drunkenness. It doesn’t establish tort law, or contract law, or regulate acts between consenting adults. It doesn’t even regulate actions regarding children, let alone infants and the unborn, except in instances below. It leaves whole areas of the law to the preference and establishment of the states and their local populations, including the issue of abortion.

So, if you murder your neighbor over a property or noise dispute, you can be tried in state courts under state laws. You will not be tried in federal courts because there is no applicable law.

There is federal law, derived from the 14th Amendment, which establishes that all persons born or naturalized in the United States are citizens of both the U.S. and the state where they live. The first section of this amendment forbids a state from “mak[ing] or enforce[ing] any law which shall abridge the privileges or immunities of citizens of the United States.” So, the states cannot officially sanction a certain religion or outlaw the keeping and bearing of arms.

That section of the 14th Amendment also keeps any state from “depriv[ing] any person of life, liberty, or property, without due process of law,” not can the state “deny to any person within its jurisdiction the equal protection of the laws.” This is the basis of a person’s “civil rights.” Under this Amendment, someone can be federally cited for denying another person’s civil rights if his or her actions infringed on the person based on their race, religion, or some other protected characterization—but not just because you killed them.

However, there are, as noted above, special cases created by subsequent federal statutes that have not yet been challenged in court. You can, for example, be tried in federal courts if you kill an elected or appointed federal official, a federal judge or law enforcement officer, or a member of the officer’s immediate family. You can be tried if the murder was involved with drugs; with rape, child molestation, or sexual exploitation of children; was committed during a bank robbery; or was an attempt to influence a federal trial. You can also be tried for a murder for hire, or for murder committed aboard a ship—which, I guess, would be outside territorial waters or outside a state’s jurisdiction, such as not in harbor or a river—or committed using the U.S. mails, such as to send a bomb or poison to your victim. These are all specific federal laws about murder.

But walk up to someone on the street and hit them on the back of the head—that’s a state crime, not federal. And similarly, aborting a child might be a state crime—if so voted on by its citizens—but it does not become a federal crime, not under the Dobbs decision.

1. See also Roe v. Nothing from September 2022.

According to Their Nature

In the movie Star Trek II: The Wrath of Khan, Kirk asks Spock how a ship full of cadets will react to an impending crisis. And Spock replies: “Each according to their nature.” That struck me at the time as kind and insightful. I now think it would make a pretty good corollary to the Golden Rule: “Do unto others as you would have them do unto you.” But also: “Treating each one according to their nature.” And I would add: “As you understand it.”

What would this mean in real life? Well, you should expect from and condone the actions of, give to and take from, and treat as fully autonomous each person according to their nature as you understand it. This does not mean that you support, surrender to, or serve their every whim, desire, and action. But you are mindful of their wants and needs in the state and condition that they currently occupy. And you bear in mind also your understanding of their long-term strengths and weaknesses, as well as what certain traditions call a person’s “Buddha nature,” or the essence of their understanding as an enlightened being—or lack of it.

This means that you expect no more of a child than childish understanding, wants, and capabilities. You also expect no more of a proven fool—as you understand him or her to be from past words and actions—than they can give. You expect strength and endurance from the strong. You support and defend the frailty of the weak. You draw out the wisdom of the wise. You give scope to the compassionate person. You hold back your tolerance from a mean-spirited person. And you work to thwart the truly evil or cruel person—again, as demonstrated by his or her past actions—because he or she in turn works to do harm in the world.

Is that too much to ask of a person? Well, maybe. We are not all-knowing gods, after all. But maybe we’re the closest thing to that on this planet.

The Death of Proof

I noted three weeks ago that I am not terribly concerned about the power of artificially intelligent platforms to create new and interesting stories, artwork, music, and other … products. Or not yet. And I don’t think they will soon get human-scale intelligence, which involves understanding, reasoning, direction, intention, and agency. But that does not mean I am not concerned.

Right now, these mindless machines can create—at lightning speed and on command—any set of words, any graphic image, and/or any sound or piece of music, all from digitized samples. And while I don’t fear what the machines themselves will want to do, I am concerned about what they will be able to do in the hands of humans who do have intention and agency.

In our documented world, proof of anything beyond our own fallible human memory is a form of information: what somebody wrote, what they said in proximity to a microphone, what they were seen and photographed doing. And increasingly, that information is in digital form (bits and bytes in various file formats) rather than analog recordings (printed words on paper, grooves on discs or magnetic pulses tape, flecks of silver nitrate in film stock). If my Facebook friends can publish an antique photograph of farmhands standing around a horse that’s twenty feet high, or a family shepherded by a gigantic figure with the head of a goat and huge dangling hands, all in grainy black-and-white images as if from a century and more ago, then what picture would you be inclined to disbelieve? How about a note with a perfect handwriting match to a person who is making an actionable threat of violence? How about a picture with perfect shading and perspective showing a Supreme Court justice engaged in a sexual act with a six-year-old?

Aside from written text and recorded words and images, the only other proofs we have of personal identity are the parameters of someone’s facial features as fed to recognition software (easily manipulated), the whorls of their fingerprints and x-rays and impressions of their teeth (easily recreated), and the coding of their DNA, either in the sixteen-or-so short segments reported to the FBI’s Combined DNA Index System (CODIS) database or in fragments recreated from a person’s whole genome. Any of these digitized proofs can now be convincingly created and, with the right—or wrong—intention and agency, inserted into the appropriate reference databases. We’ve all seen that movie. And artificial intelligence, if it’s turned to firewall hacking and penetration, can speed up the process of insertion.

My mother used to say, “Believe only half of what you see and nothing of what you hear.” With the power of artificially intelligent platforms, make that “nothing and nothing.”

In the wrong hands—and boy, these days, do we have a bunch of hands pushing their own agendas—the speed and power of computers to make fakes that will subvert our recording and retrieval systems and fool human experts launches the death of proof. If you didn’t see it happen right in front of you or hear it spoken in your presence, you can’t be sure it happened. Or rather, you can’t be sure it didn’t happen. And if you testify and challenge the digital proofs, who’s going to believe your fallible human memory anyway?

That way lies the end of civil society and the rule of law. That way lies “living proof” of whatever someone who doesn’t like or trust you wants to present as “truth.” That way lies madness.

Let the Machines Do It

I wrote last week about artificial intelligence and its applications in business information and communications: that the world would speed up almost immeasurably. There is, of course, a further danger: that humans themselves would in many cases forget how to do these tasks and become obsolete themselves.

Yes, we certainly believe that whatever instruments we create, we will still be able to command them. And so far, that is the case. But the “singularity” some thinkers are proposing suggests that eventually the machines will be able to create themselves—and what then?

We already have computer assisted software engineering (CASE), in which complex programming is pre-written in various task-oriented modules, segments of code designed for specific purposes. These modules perform routine operations found in all sorts of programs: sorting data, keeping time, establishing input and output formats, and so on. Programmers no longer need to write every line of their code in the same way that I am writing this text, by pushing down individual keys for every word and sentence. Instead, programmers now decide the process steps they want to invoke, and the CASE machine assembles the code. It’s as if I could specify the necessary paragraphs required to capture my ideas, and the software assembler did the rest. And isn’t this something like how the large language models (LLMs) behind applications like ChatGPT operate?

My concern—and that of many others involved with this “singularity”—is what happens when the machines are able to create themselves. What if they take control of CASE software, for which the machines themselves determine the process steps using large language processing? What if they can design their own chips, using graphics capability and rolling random numbers to try out new designs in silico before committing them to physical production in a chip foundry? What if they control those foundries using embedded operations software? What if they distribute those chips into networked systems and stand-alone machines through their own supply chains? … Well, what inputs will the humans have then?

Similarly, in the examples I noted last week, what happens when business and communications and even legal processes become fully automated? When the computer in your law office writes your court brief and then, for efficiency’s sake, submits it to a judicial intelligence for evaluation against a competing law firm’s automatic challenge as defendant or plaintiff, what inputs will the humans have? Sure, for a while, it will be human beings who have suffered the initial grievance—murder, rape, injury, breach of contract—and submitted their complaints. But eventually, the finding that Party A has suffered from the actions of Party B will be left up to the machines, citing issues raised by their own actions, which will then file a suit, on their own behalf, and resolve them … all in about fifteen seconds.

When the machines are writing contracts with each other for production, selecting shipping routes and carriers, driving the trains and trucks that deliver the products, stocking the warehouses, and distributing the goods, all against their own predictions of supply and demand for the next quarter, the next year, or even then next ten years, what inputs will the humans have? It will be much faster to let the machines determine where the actual people live, what they need and want, and make decisions for them accordingly, so that all the human population needs to do is express its desires—individually, as convenient, to the big computer in the cloud.

And once humans are content to let the machines do the work, make the decisions, plan the outputs, and make things happen … will the human beings even remember how?

That’s what some of us fear. Not that the machines will do the work, but that human beings will find it so convenient that we will forget how to take care of ourselves. Do you think, when you put in a search request to Google, or ask Siri or Alexa a question, that some human person somewhere goes off and looks up the answer? Of course not. The machine interprets your written or spoken words, checks its own interpretation of them against context—and sometimes against the list of possible responses paid for by interested third parties—and produces a result. In such a world, how many of us will still use—or, eventually, be able to use—an encyclopedia, reference book, or the library’s card catalog to find which book has our answer? For starters, how many of us would want to? But eventually, finding references will be a lost art. And at what point will people even remember that the card catalog is arranged alphabetically—or was it numerically, according to the Dewey decimal system?—and know what letter comes after “K”?

Frank Herbert recognized this problem in the Dune novels. In the prehistory to the series that begins in 10,191 AD, he envisions a time about five thousand years earlier that computers and robots once became so common and practical that human beings needed to do almost nothing for themselves. People became dependent and helpless, and the species almost died out. Only a war to end the machines, the Butlerian Jihad, ended the process under the maxim “Thou shalt not create a machine in the likeness of a human mind.” That commandment attained religious force and shaped the succeeding cultures. Only the simplest clockwork mechanisms were then allowed to control machines.

In the Dune stories, the Butlerian Jihad gave rise to the Great Schools period. Humans were taught again how to use their minds and bodies and expand their skills. Complex computations, projections, and planning were performed by the human computers, the Mentats. Physical skills, nerve-muscle training, and psychological perception were the province of the female society of the Bene Gesserit, along with secret controls on human breeding. Scientific discovery and manipulation, often without concern for conventional morals or wisdom, were taken over by the Bene Tleilax. And interstellar navigation was controlled by the Spacing Guild.

My point is not that we should follow any of this as an example. But we should be aware of the effect that generations of human evolution have built into our minds. We have big brains because we had to struggle to survive and prosper in a hostile world. Human beings were never meant to be handed everything they needed without some measure of effort on our part. There never was a Golden Age or Paradise. Without challenge we do not grow—worse, without challenge we wilt and die. Humans are meant to strive, to fight, to look ahead, and to plan our own futures. As one of Herbert’s characters said, echoing Matthew 7:14, “The safe, sure path leads ever downward to destruction.”

That is the singularity that I fear: when machines become so sophisticated, self-replicating, and eventually dominating that they take all the trouble out of human life. It’s not that they will hate us, fight us, and eliminate us with violence, as in the Terminator movies. But instead, they will serve us, coddle us, and smother us with easy living, until we no longer have a purpose upon the Earth.

Go in strength, my friends.