Home > Things to be Outraged by > Your Civil Liberties and The Maculate Reception

Your Civil Liberties and The Maculate Reception

It’s late in the fourth quarter.  Your team is down by five but they’re driving down the field and in opponent’s territory.  Then with 31 seconds left this happens.  You lose. 

This play has set the NFL on fire.  Everyone is up in arms about this rule demanding that it be changed.  The rule says (more or less) that when the receiver goes to the ground in the act of making the catch he has to maintain control all the way to the ground without dropping it.  That didn’t happen here.  Is this a bad rule?  I suppose there is room to argue here but one thing that I’m confident about is that someone made this rule after careful consideration of the alternatives.  The people who are upset about it now are probably not going through that process.  They are angry because something that looked like a catch and felt like a catch wasn’t actually a catch.  (If you want to see how mad some people are about this try this link but be on alert for explicit language. What do you think the chances are that a guy who cares that much about a football game is really going to quit watching cold turkey?  Gotta love selection bias).

But who is really at fault here?  Is it the referee for enforcing the rule?  Or the NFL for making the rule that resulted in this unfortunate result?  Nope, it’s Calvin Johnson.  He should have known the rule and he should have held onto the ball.  It’s that simple.  And he’s a great player, so guess what he’s going to do.  He’s going to hold onto the ball next time!  You see the rule of law is a very simple process really.  The law is made, people are then responsible for knowing and following it.  Sometimes they don’t.  Sometimes things happen that you wish didn’t happen.  But there it is naturally self-correcting.  You don’t need a new law every time something goes wrong?  Sometimes you just need to learn the laws you have. 

Now I could talk about financial reform or something like that here.  There’s actually a million laws (probably literally) that I could bring up as examples of us overreacting and making a bunch of laws in response to something bad that happened in the past that would correct itself if we left it alone or enforced the laws we already had.  And I have a big one coming up so females and soccer fans should keep reading, it’s not just a football post.  First though, I want to dig a little deeper into the sports analogy.

I played football for a long time and then took up rugby not too long ago.  When I was first learning the rules of rugby, it was a strange process because I kept asking people what was legal and what wasn’t and they kept giving me weird answers like “well technically this is illegal but you can usually do it in this situation and this situation but sometimes if you do it like this it might be a penalty.”  You see, in rugby the job of the referee is to keep the game moving along and make it somewhat fair.  There is a set of rules but they pretty much all carry the caveat that the referee can choose to enforce them or not at his discretion.  In certain situations there is an outcome that the referee expects to happen and as long as that happens, he doesn’t intervene.  When something else happens, he calls a foul and restores the expected outcome (we had a referee come and explain this to us in basically these terms).  Because of this, the rules are difficult to explain (and learn).  You have to develop a feel for what you can do and when.

This is, I think, a large part of the distinctive American character of Football.  The job of the referees is nothing other than enforcing the rules.  They’re not trying to make the best team win, or make it a close game, or keep it moving or anything like that.  Just learn these rules and enforce them the best you can based on what you see.  This is the essence of a rule of law society, as illustrated by the well-known parable of Justice Holmes.

So if Calvin Johnson following the rules in the future is not enough “justice” for you, what exactly do you demand that the NFL do?  Well there are basically two ways they can go.  One way is to make the rules more specific so that what happened on Sunday is a catch but other things that we don’t want to be catches still are not.  For instance: “if the player goes to the ground he must maintain control without the ball hitting the ground unless he has control for at least 1.5 seconds before going to the ground and then the act of the ball contacting the ground while secured knocks it out.”  This would require the referee to measure 1.5 seconds but that’s an objective standard which does not rely on any abstract concept like “justice” for its execution.

The other way they could go is to give the referees more discretion to give credit for a catch when it feels like a catch but not when it doesn’t.  An extreme example of this would be to change the rule to “if it feels like a catch, it’s a catch.”  This is basically the standard in rugby.  They certainly won’t do that in the NFL.  What they probably will do, is make the rule less precise by adding language like  “clearly demonstrate control” (when they make something subjective they tend to appease their conscience by adding words like “clearly”) or “football move.”  They won’t come out and declare that the rule of law failed and they’re replacing it with an all-powerful referee who enforces whatever he considers to be justice, they will just change the rule of law so that it grants such a power to some extent to such a referee.

So, if they were to do this, would it cause fewer controversies like this one or is it more likely that the newfound discretion bestowed upon the referees would actually have the opposite effect?  The answer is obvious and requires no further explanation.

Now consider cases like this.  This guy walks like a terrorist, talks like a terrorist, he probably is a terrorist and everybody would prefer for him to croak tomorrow.   But there is a reason that we have a constitution that prohibits the government from assassinating us at their discretion.  You establish the rule of law because the members of a society prefer to give up the right to pillage their neighbors in exchange for their neighbors giving up that same right.  In order to establish this, the society must create a government that has the ability to overpower all individuals and small groups.  This government is then a constant threat to dissolve the rule of law and seize complete control.  To prevent this, a strict set of rules must be created and imposed upon the government by the people. 

One of the key components of this set of rules is a prohibition on the killing or imprisonment of citizens without a trial by their peers.  In other words, the government must not be given discretion to dispose of citizens at will.  But now they are doing that!  The people who came up with these rules put a lot of thought into them.  There are reasons for them.  Once we let the government have this discretion where does that discretion end?  Would you want Nixon to have it?  What about Bush for that matter?  Who decides what makes someone a terrorist?  

 The rule of law is a complex and fragile mechanism.  Situations will always arrive in whch the rule of law seems like an encumberance but if we try to compromise it to kill a terrorist, we risk the corruption of the very concept which allows us to be free.  Terrorists can cause a lot of destruction but there is nothing they could bomb which would cause the destruction of the nation.  The only people who can bring down America are Americans by forgetting what it is they are defending.  This is more important than tax cuts and budget deficits.  We need to be outraged by this.

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