One yearTwoThree years ago today, I started this site with the following statement: “An attorney should always put a statement of the questions presented at the very beginning of any brief unless the rules forbid it.” In that opening post, I tried to map an approach that would guide content then unwritten:
… Setting aside the notion of persuasion, the judicial posture is a useful one for approaching the world.
On the national level of the American governmental apparatus, judges usually are considered passive entities. A court cannot reach out and take or create a case that is not properly before it, nor can it concoct a set of hypothetical facts and issue a decision based on those facts. Most of the time, courts cannot even rule on arguments or contentions the parties do not raise. This detached position encourages patience and allows one to receive an orderly presentation of considerations before making a decision. And judges must make some kind of decision. Judges are passive in posture, though not in nature. At the very least, they must issue a judgment– a verdict, decision, or ruling. By convention or rule, they need to be prepared to defend their decisions verbally or in writing. This requirement of eventual and substantial action reinforces and enhances the passive phase and its attendant values. Knowledge that one must later decide focuses the passive mind and encourages patience to allow for a full understanding of the matters at hand. There is mutually reinforcing energy between listening and deciding such that nothing is mere talk, and chatter has little purpose. As usual, time is a foundational consideration: listen, then decide, then defend, and then listen again.
Resource limitations are a part of our condition. When we choose to utilize our limited resources, we want to do so effectively. This applies to mental resources as much as it does to fuel and finances. Regardless of a resource’s renewability, other limitations will constrain its expenditure or utilization. Efficacy and efficiency are the best responses to this fact of limitation, here represented by the phrase “in the real world.” Many scholars are feeding their families today because of their ability to operate (in varying degrees) detached from the real world. Ideas are important. Theory is important. That’s the point of what you are reading and will read here. The seemingly unavoidable limitations on resources demand that we root ourselves in reality, while allowing ourselves to discuss, critique, and reevaluate that reality. This is a chance to find out what happens when keeping it real goes right.
What about the questions presented? Wasn’t that where this was supposed to begin? It was, and it is. Justice Scalia and Brian Garner emphasize the primacy of questions presented because those questions shape everything that follows. I’m not exactly sure what will follow, but I have some ideas and I know you do too. It’s time to start asking questions that matter.
My goal has been to try to ask real questions, not leading or rhetorical ones, in an attempt to reveal something about what underlies our assumptions, ideas, and viewpoints. I’ve tried to at least imply a question in every post, and where I did not, my approach was to put forth a position that invited responsive comments, of which the site received many. With
nearly 3,500over 9,700nearly 14,000 views in the first yeartwothree years, I think we’re off to a good start.
Thank you for your readership and feedback.
The Constitution does not mandate America’s de facto two-party system; it does not mention political parties at all. Yet while the identities of the parties– in both name and platform– have changed over time, the United States has been a two-party country really since before day one.
There is much to be commended about the two-party system as it exists in the U.S. today. The conglomerate, dynamic nature of the parties means that the they evolve by competing with each other to attempt to absorb new movements and the votes that come with them. (Cf. Democrats and Greens with Republicans and Tea Partiers. The question of what happens once that absorption takes place– the assimilation– is a subject for another post.) It really is not so dissimilar from multiparty, parliamentary-style democracies, the difference being that those systems wait until after an election to form a coalition government, while the American system forms would-be governing coalitions before the election.
The third parties that persist in a two-party system like America’s without absorption generally are of two kinds: 1) the very unpopular or 2) the fundamentally opposed to both major parties. An unpopular faction will not be absorbed because it either is merely unpopular in the numerical sense or it is unpopular in the ideological sense. An unpopular faction is unlikely to coalesce into a functional political party for a variety of practical reasons.
The second variety of third parties mentioned is all that really remains for third parties under today’s two-party system. Because the major parties cover virtually the entire spectrum of substantive interests, the only thing left for a third party is to oppose both parties at some fundamental level, and that’s what America’s two most viable third parties– the Green and Libertarian Parties– are doing. Dissecting why the Green Party persists is a subject for another post. This post, unsurprisingly, will focus on the Libertarian Party.
I’ve already written at length here about libertarianism and some of its challenges. See, e.g., here, here, and here. With next week’s presidential election looming, the immediate question is whether it makes sense to actually vote for a third-party candidate. Most Americans profess concern with the notion that their vote “count.” People most concerned that their vote doesn’t count tend to be those in states with large populations and states that heavily favor the major party other than the one they support. This year, with the broadening popularity of Libertarian Party presidential candidate Gary Johnson, some are wondering whether a vote would be a wasted vote. The unstated basis for that view is the logical assumption that Johnson will not win the election.
That is a self-fulfilling prophecy, of course. There’s no way Johnson can win if nobody votes for him, whatever their reasoning; conversely, if enough people ignored that assumption and voted for him, he would win. Still, though, that is unlikely to happen either, because there don’t appear to be enough people who would even consider supporting Johnson regardless of their expectation of his success.
I think the real underlying sentiment among voters is that they want to pick a winner. In other words, they want their votes to “count” in the sense that they want their votes to achieve something. If there’s no reasonably likely way the candidate will win or even come close, people will see a vote for that candidate as a vote that was “wasted.” The vote had no hope of achieving anything.
Johnson has embraced the “wasted vote” concept:
“Wasting your vote is voting for somebody that you don’t believe in,” an impassioned Johnson said. “That’s wasting your vote. I’m asking everybody here, I’m asking everybody watching this nationwide to waste your vote on me.”
His statement includes an important response to the “wasted vote” critique that seeks to redefine the concept: “Wasting your vote is voting for somebody you don’t believe in.” He realized he needed to add a practical goal, though, to help people see their votes as votes that would “count” in that second sense of achieving something, even if it wasn’t an outright victory for their candidate. He has done that by setting a goal of securing five percent of the popular vote nationwide, an achievement that would entitle the Libertarian Party to public campaign funding (something the major parties now have rejected, with President Barack Obama setting a record by raising over $1 billion) and a spot on the ballot in every state in the 2016 election. This is a goal the potential achievement of which Johnson believes his potential supporters will see as sufficient to consider a vote for him as one that will “count.”
Everybody likes to pick a winner, and everyone wants to be on the right side of history. Letting the perfect become the enemy of the good isn’t always practical. But maybe it’s worth reexamining our approach to voting if we find ourselves voting for a candidate other than the one we want to win the election.
Johnson may not win this election. He may not even make it to five percent of the national popular vote. (After all, the most successful third party campaign, Ralph Nader’s 2000 effort for the Green Party, only secured 2.74% of the popular vote. Right now, Johnson is polling at six percent nationwide.) What he already has done, though, is initiated a compelling discussion about reconceptualizing how Americans vote. All he needs now is five out of every one hundred voters to agree that that is a conversation that should continue.
“Come waste your [vote] with me”
Professor Randy Barnett is a right-libertarian constitutional scholar who unsuccessfully argued Gonzales v. Raich, 545 U.S. 1 (2005) on behalf of medical marijuana users and unsuccessfully argued Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. ___ (2012) on behalf of the healthcare law challengers, and who has appeared in these pages before. See here; see also here. Akhil Reed Amar is a leading progressive constitutional scholar who recently published an extensive book entitled America’s Unwritten Constitution: The Precedents and Principles We Live By. Earlier this month, Barnett published a review of Amar’s book in the Wall Street Journal. A few days later, Amar responded at length to Barnett’s review.
As illuminated in the review and the review of the review, the difference between these two hinges on what Barnett sees as Amar’s particular conception of the “living Constitution.” Barnett writes:
Now, it makes some sense to call the meaning that is implicit in the text the “unwritten Constitution.” After all, the implicit meaning is conveyed by what the text expressly says. But by including the judicially created implementing rules under this rubric, Mr. Amar suggests this doctrine is in some way the equivalent of the original, written one, and that this law of the judges can equal if not trump the law of the Founders. This is what living constitutionalism has always been about.
Mr. Amar acknowledges the problem. “Those who venture beyond the written Constitution must understand not only where to start, but also when to stop, and why,” he warns. “The unwritten Constitution should never contradict the plain meaning and central purpose . . . of an express and basic element of the written Constitution.” He adds: “The written Constitution deserves judicial fidelity, both because it is law and because, for all its flaws, it has usually been more just than the justices.” For the same reasons, he agrees that judicial precedent should not be allowed to trump or supersede the original meaning of the text. Where courts have gotten it wrong about the meaning of the text, the meaning—not the precedent—should govern. “A prior erroneous Court ruling does not properly amend the Constitution.” No matter how entrenched Jim Crow laws became after the Supreme Court upheld “separate but equal” in Plessy v. Ferguson, it was right to reverse that decision in Brown v. Board of Education.
This is all good and welcome. But Mr. Amar goes on to advocate an exception that is big enough to drive a living constitution through. “An erroneous precedent that improperly deviates from the written Constitution may in some circumstances stand,” he tells us, “if the precedent is later championed not merely by the court, but also by the people.” “When the citizenry has widely and enthusiastically embraced an erroneous precedent,” the courts may “view this precedent as sufficiently ratified by the American people so as to insulate it from judicial overruling.” When this happens, according to Mr. Amar, the erroneous precedent becomes part of America’s unwritten Constitution.
In other words, if what the judiciary is doing is popular enough, the unwritten Constitution promulgated by judges takes precedence over the written one. Despite the concession made to the written Constitution, this is really no more than a variation of living constitutionalism, one taken even further in the parts of the book where Mr. Amar contends that the unwritten Constitution also consists of numerous historical documents—like the Northwest Ordinance and the Gettysburg Address—along with institutional practices of Congress and the White House.
Amar sets out to refute this charge:
You wrongly suggest that this is my view: “If what the judiciary is doing is popular enough, the unwritten Constitution promulgated by judges takes precedence [according to Amar] over the written one.” I actually say something quite different, and far more nuanced: In the domain of unenumerated rights, popularity counts. Here is one key passage: “While a wave of new legislation would not ordinarily suffice to trump a precise and inflexible textual right, we must keep in mind that in this chapter we have been dealing with various rights that have not been specified in this way in the written Constitution. If the original judicial reason for deeming these rights to be full-fledged constitutional entitlements derived from the fact that American lawmakers generally respected these rights in practice, then such rights should lose their constitutional status if the legislative pattern changes dramatically. In this particular pocket of unwritten constitutionalism [my emphasis] what should ideally emerge is a genuine dialogue among judges, legislators, and ordinary citizens.” And here is another passage: “Thus, if the Court at time T1 gets the Constitution’s text and original understanding wrong and proclaims a right that does not in fact properly exist at time T1, and if the vast majority of Americans come to rejoice in this right, the Court at time T2 should affirm the originally erroneous precedent. The case, though wrong when decided, has become right thanks to an intervening change of fact — broad and deep popular endorsement — that the Constitution’s own text, via the Ninth and Fourteenth Amendments, endows with special significance. Note one key asymmetry: A case that construes a textual constitutional right too narrowly is different from one that construes the right too broadly. Even if both cases come to be widely embraced by the citizenry, only the rights-expanding case interacts with the text of the Ninth and Fourteenth Amendments so as to specially immunize it from subsequent reversal.”
Intelligent, thoughtful scholars like Amar and Barnett bring out the best in each other, or close to it, because they are willing to engage with each other and have an exchange that both sharpens the distinctions between the two and draws each to develop and defend his views. In this case, Amar has advanced an intriguing and creative constitutional notion. Barnett challenged it, and Amar’s response further defined the concept.
Perhaps it ultimately is too simplistic, but even high-minded conservative constitutional defenders like Barnett seem to forget a basic, mechanical objection to expansive constitutional approaches like Amar’s: they are undemocratic. Functionally, what the host of progressive, “living Constitution,” dynamic, “unwritten Constitution,” etc. approaches seek is a shortcut to or a circumvention of the constitutionally prescribed amendment process, the dangers of which should be self-evident. There probably is a reason that scholars in Barnett’s position do not rely on this fundamental objection– to which Amar’s vague appeal to the Ninth and Fourteenth Amendments looks like a grasping rejoinder– but it escapes me, especially because there does not seem to be an equally compelling response available to those in Amar’s position. (Note also that Amar’s qualification, that only those extra-Constitutional interpretations that expand rights are authoritative, is irrelevant in the face of a Federalist approach to liberty under the Constitution, in addition to being non-responsive to the fundamental, mechanical objection mentioned in this paragraph.)
It has been a long time since I have read fiction. Nonfiction has comprised effectively the entirety of my pleasure reading for years, and spending the past year developing ALDLAND has meant that sports news (i.e., more nonfiction, with the exception of hockey teams’ playoff injury reports) has dominated my online reading as well. Once I set aside Justice Breyer’s book earlier this year, I began to contemplate a return to fiction. I’m not quite ready yet, though, opting first to tackle Michael Sandel’s latest, which I’ve nearly finished. I also have contemplated reading Hampton Sides‘ Hellhound on His Trail: The Stalking of Martin Luther King, Jr. and the International Hunt for His Assassin next just as an excuse to remain in nonfiction’s friendly waters.
My inexplicable resistance to fiction nevertheless is slipping, however. Although I had no intention of reading or buying Jay Caspian Kang’s debut novel, The Dead Do Not Improve, I had been hearing about its release for a year, so it was easy enough to decide to take a peek when the Grantland blogger offered the first thirty-five pages of his book for free perusal online. My reactions to the experience of reading the opening of Kang’s novel were not complex or groundbreaking. My first thought was that it felt not so bad to be reading fiction again. My second was that the text seemed awfully autobiographical, and I couldn’t decide whether that irritated me. My third thought was confirmatory of my preconceived notion that there was no need for me to buy or read (now, the entirety of) this book. My fourth thought, upon completing the excerpt, was that maybe I would get the book, as a flippant way to ease back into fiction. I suppose that’s marketing at work, but my idea was that, rather than hold out on fiction not because I didn’t want to be reading it but because I felt I had to reengage in a particular way, and the choice of which fictional work would be my first would be too fraught.
I was not expecting to see any more of Kang’s text anywhere outside of the book’s covers when I came upon his recent Gawker post. Apparently a lot of other people thought The Dead Do Not Improve seemed pretty autobiographical too. For some reason, this (again, apparent) sentiment put Kang on the defensive, so he took to Gawker to try to tamp down the issue by presenting yet another, albeit much shorter, segment (italicized below by me for clarity) of the novel, this time with new annotations included:
To try to shove that top-down question of “how much of your life is in your character” and all of its political implications a bit further out to pasture, I’ve annotated an excerpt from The Dead Do Not Improve to tell you exactly what parts came from my life and what parts did not. My hope is that you will find these details to be about as unimportant as they ultimately are.
The true parts I have tagged IRL. The fictional parts are tagged FICTION.
Those mornings in the parking lot with my three friends, the Ronizm mornings: Seth Bloomberg (IRL: name altered) picked me up at seven-twenty on the dot.
In precal, I sat between Heba Salaama and Paul Offen. Years later, Heba Salaama, better known to the greater student public as Heavy Salami, won a hundred thousand dollars on some network TV weight loss show (IRL), but back before her dreams came true, in those pre-9/11 days when the last name Salaama was simply a curiosity, Heba was the terrifying, ethnically ambiguous girl who sat next to me in math, who kept telling me that I smelled like weed (IRL), who threatened to tell Ms. Butler if I didn’t let her copy last night’s homework (FICTION).
The entire exercise is available here. Upon reading all of it, my immediate reaction is that whether “these details” are “unimportant”– to the reader’s experience of Kang’s novel, presumably– is beside the point.
I chose the two excerpts of the excerpt that I did because they demonstrate a) Kang’s ability to use a particular, basic literary technique, and b) his decision not to employ that technique in a particular instance. Explicitly, Kang’s annotation reveals that he knows how to write about a person he’s met while disguising that person’s identity by using a different name, an elementary and widely accepted technique. There is nothing objectionable about writing about real people in the fiction context; indeed, it seems like it would be difficult to write convincing fiction about human beings without having met and being influenced by one or two. Still, as a matter of common courtesy and because there’s little to be gained by using real names, authors usually use a different name for their character. Like any author, Kang is familiar with this technique, and he demonstrates it with the character he calls “Seth Bloomberg.”
In the second excerpt, however, Kang declines to use this technique and goes out of his way to let us know that he’s chosen not to. “Heba Salaama,” the protagonist’s classmate, is a real person, and her name is Heba Salaama. Kang not only expressly tells us this, but he goes further out of his way to let readers know that Salaama is a real person by linking to a video of her. Within one sentence, Kang makes pointed reference to Salaama’s weight and ethnic background and mixes in a fictional part about academic cheating (recall the actual book does not contain the annotations being discussed here) before moving on to an extended discussion of his actual high school’s “lone autistic kid,” whose real name Kang also uses.
The issue here is not that Kang’s protagonist, named for another of Kang’s actual classmates, dwells on the physical characteristics, ethnic background, or mental capacity of other characters. Writers should be honest in this way, and protagonists, however autobiographical, do not have to be morally good people. Instead, the issue is why Kang felt the need to use the real names of real people like Salaama. Even if it isn’t a requirement for their protagonists, writers ought to be morally good people, and even though morality isn’t necessarily about balancing, two initial questions come to mind: 1) What does Kang gain by using the real names of people like Salaama?, and 2) What do people like Salaama lose when Kang incorporates them into his story, and publicly highlights likely unflattering episodes of their lives? For himself, Kang appears oblivious, which borders on the literally unbelievable.
Positive analysis has to do with descriptive, objective, fact-based observations; in essence, it asks, “what has happened?” Normative analysis, on the other hand, is subjective, and value-based; it asks, “what should happen?”
Different people use the “should” of normative analysis in slightly different ways, usually without taking care to precisely contextualize what they mean when they say that something “should” happen in a particular way. While public policy analysts and scientists, for example, usually seem to be mindful (or at least appropriately transparent) with their shoulds, economists seem to have some trouble in this area and may at times engage in overreaching normative analysis.
Economists ultimately are studying human behavior. When they make predictions about “what the market should do,” they really are predicting how people will act and react with respect to various signals. At a first level, there’s a simple feedback loop here. Unlike doctors stating the way in which a virus “should” mutate, for example, the real subjects of the economists’ normative statement can hear and react to the economists, and they often do. A second level recognizes that economists often have their own (implicit, unstated) preferences built into their normative assessments. A hydrologist doesn’t say that water and sediment ought to interact in a particular way because she personally wants them to. Conversely, it does not seem uncommon that an economist would say that the market ought to ignore a particular signal because she personally believes that the market is better off ignoring signals of that type.
The previous paragraph hints at the different uses of the normative “should.” One is predictive, based on collected past observations, data, and other indicia that lead an economist to render a conclusion about what “should happen in the future (based on what I have observed happen in prior similar circumstances).” The second is a value statement, based on personal preferences that lead an economist to render a conclusion about what “should happen in the future (based on how I prefer people and systems to act and behave).”
Failing to distinguish between these is problematic because the economist’s audience is a) unlikely to detect or make the distinction and 2) will assume the statement is of the first, scientific, predictive type and thus endow it with a certain level of authority to which it may not be entitled.
There also is a certain arrogance on the part of economists when they dress their personal value-based “should” statements like the more detached, scientific ones. This might be most apparent in the context of valuing human life, a topic that could itself fill numerous posts. Rather than phrasing the inquiry as determining the value of a human life, which many people find objectionable, economists refer to the value of a statistical life, apparently in an attempt to quell these lay fears by encouraging people to think about the question in a more detached, lifeless manner. Asking people how much they would pay not to be in a stadium of 100,000 people, knowing that a certain, small number (perhaps one) of those people would die, for example, is thin cover for the essential question of how much, in a monetary amount, we value a particular human life. I’m not saying we shouldn’t confront such questions– things like risk-risk analysis are important– but when economists tell us we should value our own lives or the lives of others at a specified dollar value, that we should be willing to subject ourselves or others to a particular increased risk of death, or even that we should or should not make a particular investment, their lay audience is right to bristle at them. They are right to bristle because the economist has made a value judgment for his audience, and the basis or framework for that value judgment is likely to exclude elements present in his audience’s value framework. Moreover, these sorts of presentations frequently seem to seek to justify and excuse business decisions to the detriment of broader, human interests. If economists are scientists of some variety, then the second sort of normative statements, the personal value-based ones, can quickly morph into pseudo science. See, e.g., here.
This all comes down to a matter of language. When economists say that the market should behave in a certain way, they really are saying something about the behavior of people. When they use such a statement to predict how they anticipate a group of people will act or react, the economists are acting in a beneficial way, and their audiences properly rely on them because they are speaking within their authority as experts on how people tend to behave in similar situations. When they use such a statement to tell people what to do with their own resources or lives because the approach fits the economists’ vision of how people and markets best function, the economists may be acting in an arrogant or deceitful way, and their audiences improperly rely on them because they are extending beyond their authority as experts. Cf. the difference between ontological and deontological approaches.
Briefly: I have tried to come up with ideas, conduct research, and write legal material fit for publication in the past, see e.g., here and here, but I was not successful until I collaborated with a senior colleague beginning last year, and I found myself in print last month, see here. The Michigan Real Property Review published our article on the effects of certain state constitutional amendments and legislation passed in the wake of the United States Supreme Court’s decision in Kelo v. New London, 545 U.S. 469 (2005). In short, our conclusion is that Michigan law currently treats private landowners very favorably when it comes to compensation for the taking of real property.
The full article is available here.
Earlier this year, a friend sent me a copy of Surely You’re Joking Mr. Feynman! (Adventures of a Curious Character), the oral memoir of Nobel Prize-winning physicist Richard P. Feynman. Upon completion, as the title implicitly promises, the reader is left with a strong sense of Feynman’s character: extremely self-confident, but never taking things too terribly seriously. While he credits the latter– a sort of everyman approach to life’s puzzles and adventures– for allowing him to take creative approaches to problem solving in physics and otherwise, it may be something of an outer surface he projects on top of his self-assured and extremely intelligent individuality. He doesn’t not remind me of Randy Pausch, late author of The Last Lecture. Still, Feynman is able to illustrate his developing personality over time, and stories about his time in Los Alamos, Brazil, and Las Vegas are fun and show readers a very well-rounded individual who could do plenty more than model nuclear physics.
Ninety-five percent of the book is Feynman telling stories, but he steps back at the end to offer some broader, more philosophical observations on the world after relating his time attempting to hallucinate with Dr. John C. Lily. Feynman expressed concern that, despite all of the scientific advances of the twentieth century, he was not living in a truly scientific age writ large because people continued to adhere to beliefs and take actions even though these approaches wouldn’t stand up to logical examination. Simply, Feynman wanted to apply the scientific method to everything and ask, for example, what educators were thinking about their new models for teaching reading when literacy and reading test scores were not improving as a result of these new approaches.
Another example is how to treat criminals. We obviously have made no progress– lots of theory, but no progress– in decreasing the amount of crime by the method that we use to handle criminals.
Richard P. Feynman, Surely You’re Joking Mr. Feynman! (Adventures of a Curious Character) 340 (W. W. Norton & Company 1985).
There’s a lot to be said about our criminal justice system and its failures, with particular comment on incarceration rates, racial prejudices, narcotics policy, and the death penalty, among other topics, but the semi-stated assumption in Feynman’s observation, that the goal of the criminal justice system is to reduce crime, seems worth examining in the first instance.
In discussing the theories that guide our criminal justice system, two apparently competing approaches are most prominent. One is the rehabilitative theory, which argues that the purpose of the system is to limit recidivism by teaching convicts how to become functional, productive members of society. The retributive theory, by contrast, is focused on punishment, attempting to balance the scales for the wrong done to the victims of the crime by exacting punishment on the convicted criminal.
Notably, both of these theories look at how we should treat a person following conviction. While Feynman may be making indirect reference to the rehabilitative approach– by processing all criminals through a rehabilitative program we build up the particularly (legally) depraved among us and thereby reduce recidivism and thus decrease crime rates– I read him as criticizing the failure to reduce crime in the first instance, which is the reading that gave me pause. That’s because the “science” of criminal justice does not appear to address reducing crime in the first instance.
There probably are a few reasons for the preference for an ex post approach over an ex ante one. First, there is a fear in criminal justice about the possibility of prosecuting “thought crime” that causes many to put on the brakes when it looks like things are moving toward punishing a person who is contemplating but has not actually begun to physically commit a crime. Second, there’s the possibly more monumental task that would be reforming the conditions of society generally such that fewer people committed fewer crimes, recognizing that there are a variety of individual and societal factors that drive criminal behavior.
Feynman’s criticism, and its incorporated assumption, therefore probably is slightly misguided. His broader point nevertheless is well-taken. For all the resources we expend on the criminal justice system, things don’t seem to be improving. While critics have identified numerous possible points of causation and adverse consequences, meaningful reform does not appear forthcoming.