“…But I know it when I see it.”

     Does anyone remember that little phrase? It became notorious in the early Seventies, after the Supreme Court issued a ruling in a pornography case. The original speaker was Associate Justice Potter Stewart. The stimulus, of course, was the question “What is pornography?”

     The Court did not issue a definition. Instead, the ruling centered on a subjective interpretation of the intentions behind the item to be judged: “Does it possess serious literary, artistic, political, or scientific value?” That came to be called the “SLAPS test.” It got the Court into the practice of screening movies for those things, to determine whether they were “pornography” and therefore could be banned. Justice Stewart stuck to his personal non-definition definition.

     Today, laws against porn are ignored nearly everywhere. They’re still on the books in most places, as are the laws against adultery, fornication, and sodomy, but no jurisdiction to my knowledge attempts to enforce them. Yea verily, not even the U.S. Postal Service, which at one point was the focus of the controversy.

     Today, quite a lot of people are saying “but I know it when I see it” about something quite different. Herewith, a brief video from Langley Outdoors Academy, in which master of ceremonies Braden focuses on a fascinating hearing in the United States Senate. As is so often the case, one interlocutor is Senator John Kennedy of Louisiana:

     I hope you watched it, Gentle Reader. Especially if you’re passionate about the right to keep and bear arms, as am I. Note all the following high points:

  • The young lawyer testifying to the Senate committee as an “expert” on assault weapons, the subject of a proposed ban in Illinois, could not say what an assault weapon is.
  • She also admitted that she did not write the amicus curiae brief in question. The brief was handed to her for her signature.
  • It is unclear whether she ever read the brief, for all that mattered was that an Illinois lawyer sign it, to get it before the Illinois legislature.

     Do you suppose that she “knows it when she sees it” — ?


     Laws which fail to define their subject matter in an objective fashion are fundamentally wrong. Many such have been deemed unconstitutional upon appellate review. The reason is simple, if not quite “obvious:” if the offense is not defined straitly enough for an ordinary man to know exactly what it means, then no one can be certain whether he’s breaking the law. Such a law is a kind of black-letter Star Chamber, wherein the accused is incapable of knowing against what charge he must defend himself.

     However, vague offenses are grist for the mill of the aspiring tyrant. A “standard” of “I know it when I see it” is inherently personal. It transfers the definition of the offense to a man: whatever man is in power at the moment. It makes room for whatever he pleases to do, regardless of the facts.

     That’s not law as Americans have understood it for centuries. That’s dictatorship. Today it’s as prevalent in American courtrooms as it is in North Korea.

     We may gloss over the obvious interest of such as the Brady Center for Gun Safety in keeping “assault weapons” undefined. What matters more is the difference in kind between such a law and one that would ban a well-defined kind of weapon: e.g., a crew-served .50 caliber machine gun. Even a dunce would have a fair chance of knowing whether he’d acquired one such. Not that I’m advocating laws against such guns, mind you, but at the very least an ordinary man would have the capacity to understand what had been outlawed.

     The difference is Isabel Paterson’s nightmare of the Society of Status, which is incompatible with a Society of Contract and Law:

     In the Society of Contract man is born free, and comes into his inheritance with maturity.
     By this concept all rights belong to the individual. Society consists of individuals in voluntary association. The rights of any person are limited only by the equal rights of another person.
     In the Society of Status nobody has any rights. The individual is not recognized; a man is defined by his relation to the group, and is presumed to exist only by permission. The system of status is privilege and subjection. By the ultimate logic of the Society of Status, a member of the group who has not committed even a minor offense might be put to death for “the good of society.”

     Even persons opposed to the private ownership of weapons should be terrified by that.

     But wait: What’s that you say? We’ve already erected a Society of Status? What do you mean? Well, it seems that FDR’s Administration incarcerated over a hundred thousand Americans in concentration camps, simply because they were of Japanese descent:

     Eighty years ago, on February 19, 1942, President Franklin D. Roosevelt signed Executive Order 9066, stripping people of Japanese descent of their civil rights. That order and the subsequent actions carried out by the Federal Government represent one of the most shameful chapters in our Nation’s history. On this Day of Remembrance of Japanese American Incarceration During World War II, we acknowledge the unjust incarceration of some 120,000 Japanese Americans, approximately two-thirds of whom were born in the United States.
     Despite never being charged with a crime, and without due process, Japanese Americans were forcibly removed from their homes and communities and incarcerated, simply because of their heritage. For years, many Japanese Americans lived in harsh, overcrowded conditions, surrounded by barbed wire fences and armed guards. Not only did they lose their homes, businesses, property, and savings — they also lost their liberty, security, and the fundamental freedoms that belong to all Americans in equal measure.

     The reasoning? “There’s a war on.” And most Americans bought it.

     Perhaps I should stop there, before I begin to foam at the mouth. But one last question for my Gentle Readers: What is there that you can’t define objectively, but nevertheless you “know it when you see it” — ? Other than art, that is.


Skip to comment form

    • Waidmann on April 2, 2024 at 8:32 AM

    Maybe the Niʻihau incident had something to do with American willingness to incarcerate much of our Japanese American population.  Only three residents of Niʻihau were of Japanese ancestry at the time of the attack of Pearl Harbor, and all three collaborated with the Japanese pilot who had just participated in the attack–and even killed one of the native Hawaiians in helping him to destroy his papers and escape.


    Maybe FDR knew the odds were overwhelming that once we were at war with Japan, many of the Japanese Americans would throw in with Japan.  And, IMHO, he probably wasn’t wrong.  Imagine the havoc and damage that many spies, saboteurs and/or terrorists could have caused.  Your short story last week makes a good point:  Diversity + Proximity = Trouble (or something like that).  And one doesn’t need that kind of trouble when you’re fighting a two-front World War.


    And, yes, there were many loyal Americans of Japanese ancestry.  There was at least one almost complete nisei unit fighting in Europe during the war (442 Infantry Regiment), plus they did invaluable work as translators in the Pacific.


    It was a tough call, and I’m glad I didn’t have to make it.

    • Bill on April 2, 2024 at 8:37 AM


    • OneGuy on April 2, 2024 at 10:14 AM

    I would argue that every Japanese-American who was held during WW II sufferred less, far less than every American killed by the Japanese in the effort to win that war.  They too were conscripted ie against their will to go and die.  Given the odds I would prefer to have been in a safe secure internment camp than assault Iwo Jima.

    1. Yet I have no doubt that you would have wanted the choice to be yours.

    • Chris on April 2, 2024 at 11:29 AM

    The Japanese internment of WWII was challenged in court. The Supreme Court ultimately came to two conclusions: internment of the Japanese Americans was unconstitutional (upon which they were free to go), and the exclusion order (for the affected areas) by the military was constitutional. The latter point should be kept in mind when dealing with the borders today.

    • anonymous on April 2, 2024 at 1:35 PM

    What, exactly, is an Executive Order?  What powers does it have, where can it be found in the Constitution, under what circumstances can it be invoked, and what are the limits of its effectiveness?  How is it different from laws duly enacted by the legislature and signed by the president/governor?

    My understanding was that an executive order was something the executive could issue and it only pertained to the executive branch.  It would not apply to the legislative or judicial branch, and it certainly could not apply to the non-government population at all.  That would be unconstitutional on its face.

    So it seems that an EO putting Japanese in camps would be way out of bounds.  Same as with an EO that limits sales of ice-powered autos at some future point in time.  Especially at a time in the future when the current executive officer will no longer be in office.

    Another problem with EO tyranny is that the EO’s are created with the stroke of a pen, altered with the stroke of a pen, and deleted with the stroke of a pen.  This disallows any input or even notice to those who would be affected by said EO, and creates an environment where those same people would never know if they were in compliance or not.

    This EO garbage must stop.  I hope someone can bring this to the Supreme Court, and have the justices wipe their collective asses with the idea that EO’s are “stroke of the pen, law of the land.”  Executives who try to rule this way should be relieved of office and subjected to the widest range of penalties.

    1. …the idea that EO’s are “stroke of the pen, law of the land.” Executives who try to rule this way should be relieved of office and subjected to the widest range of penalties.

      Lese majeste — the rule that one may not speak ill of a king — appears to be on the rise in this republic for that very reason. Our Presidents and those who serve him are acting as if they are absolute monarchs and the lords who rule under him. The arrest and prosecution of the justly angry Gold Star father for shouting at Joe Biden is simply the latest example. Letitia James’ threats to punish the firefighters who dissed her is another, at the lower level.

      Wake up your fellow citizens to the public servants who are acting like they are ruling by divine right before they take away everything.

      Am I wasting my time asking for that? Pray it isn’t so.

Comments have been disabled.