It is the dissent that seeks to overturn precedent by resurrecting Roberts a mere five years after it was rejected in Crawford.
27 January 2010
Constitutional Law in a Nutshell
From Justice Scalia's opinion in the 2009 case of Melendez-Diaz v. Massachusetts. The facts of the case are irrelevant. This priceless gem of legal reasoning stands on its own. I can only wonder if Scalia has any sense of irony.
25 January 2010
Craziest Thing I Read Today
Both Russian sources and US military have confirmed a huge military tunnel beneath the BERING STRAIT, linking SIBERIA with ALASK
This comes from the heretofore unknown Roy Taylor Ministries. (And, no, I didn't cut off the last letter of Alaska--Roy's apparently not in the business of ministering to copy editors.)
Anyway, this here tunnel "was not DUG out, but BORED OUT using nuclear power that melted it's way through solid rock, six miles a day." Wicked cool, eh? Since there'd only be one direction for the debris to go, I can only hop the miners (bombers?) got all the way back out the other end of the tunnel before the bombs went off. At 6 miles a day, though, the tunnel would only take about 10 days to dig nuke blow construct.
Happy Bubble Wrap Day
Today is Bubble Wrap Appreciation Day and a notable milestone event, as the ever-popular children's toy/packaging material celebrates its 50th year.
As is so often the case, the invention of bubble wrap resulted from a combination of inventiveness and pure serendipity.
The company they founded now has annual revenues in excess of $4 billion--not bad for a couple of guys who failed to create the product they envisioned. But as Joseph Schumpeter argued, the entrepreneurial spirit is not motivated primarily by money, but by creativity. Or as my colleague Oded Gur-Ari, director of Adrian College's Institute for Entrepreneurial Studies says, "Entrepreneurs are people who see a problem and find a solution to it." Even if inadvertently, yes?
And, to throw in the requisite ideological soapboxing, this is why we should favor free societies over tightly regulated societies--because of the differential in promoting and rewarding entrepreneurialism. Ethical arguments aside (and I suppose, if pushed, I would admit that ethical arguments might have some power as well), mere utilitarianism recommends freedom.
As is so often the case, the invention of bubble wrap resulted from a combination of inventiveness and pure serendipity.
...two engineers, Marc Chavannes and Al Fielding...were trying to make a plastic wallpaper with a paper backing. Surprisingly, this product didn't take off. They quickly realized, however, that their invention could be used as a cushioning material for packaging. At that time, only abrasive paper products were used for packaging, which did not suffice for cushioning heavy or delicate items.
The company they founded now has annual revenues in excess of $4 billion--not bad for a couple of guys who failed to create the product they envisioned. But as Joseph Schumpeter argued, the entrepreneurial spirit is not motivated primarily by money, but by creativity. Or as my colleague Oded Gur-Ari, director of Adrian College's Institute for Entrepreneurial Studies says, "Entrepreneurs are people who see a problem and find a solution to it." Even if inadvertently, yes?
And, to throw in the requisite ideological soapboxing, this is why we should favor free societies over tightly regulated societies--because of the differential in promoting and rewarding entrepreneurialism. Ethical arguments aside (and I suppose, if pushed, I would admit that ethical arguments might have some power as well), mere utilitarianism recommends freedom.
Happy Roe v. Wade Day
Today is the day when pro-lifers nash their teeth in anguish over the 1973 Roe v. Wade decision, and when pro-choicers gnash their teeth in anguish over the fact that pro-lifers haven’t yet acquiesced to the Supreme Court’s ruling.
But I find the abortion debate particularly unenlightening. It consist of little more than two sides iteratively reciting a very limited set of very familiar arguments. There are no arguments pro or con which are less than 25 years old, yet each side continues to ritualistically invoke them as though mere repetition alone can change minds. My perspective is that neither side can convince the other because both side’s arguments have real power. Each has announced their own set of legitimate interests, but neither side has ever successfully rebutted the other side’s claim of legitimate interests, nor successfully demonstrated that their interests should always trump the other’s interests.
I want to examine the issue from a different perspective; a biological history perspective. I make no claim that this perspective will resolve the debate, but I believe both sides would benefit–intellectually, and perhaps morally, but not necessarily politically–from looking at abortion in this way. This is a bit long, as the biological argument requires quite a bit of setup, but if you’re game, please click the “continue reading” button.
The biological history perspective requires that we recognize abortion as a form of infanticide. Pro-lifers, of course, agree, but only because they see the term as having political power. Pro-choicers object, but only for the same reason. But as I repeat to my methods class daily, we are engaging in analysis here, not advocacy.
The historical fact is that infanticide has been practiced, with varying degrees of frequency and approval, in all cultures throughout history. For various reasons, mothers–and sometimes fathers–find the destruction of an infant to be in their own best interest. From a biological perspective, this is an interesting question because it means the destruction of their own genetic heritage, so it seems that evolution would tend to eliminate people with a tendency to do that, and favor those who are so attached to the concept of having children that they would never, under any circumstances, eliminate one of their own. The latter, after all, would leave more children, so their child-loving genes should, over time, come to dominate the population, while the child-killing parent’s genes should gradually diminish and disappear.
But that seemingly logical argument is superficial. It’s not simply quantity that matters evolutionarily, but quality. There are two approaches to reproductive success, the r and k strategies. The r strategy is to have very large numbers of offspring, but to put minimal parental investment into them. Sea turtles, for example, lay between 50 and 200 eggs (depending on the species) every few years, but after burying them in a sandy nest, leave them behind. Most of the babies are eaten shortly after hatching, but some survive to reproductive age. The k strategy is to have few offspring, but invest heavily in them. Orang-utans, for example, normally have one child at a time, which stays with the mother until sexual maturity at 6-7 years of age, during which time the mother will have no other offspring.
Human behavior is, compared to many species, very plastic, but it is nonetheless biologically based. We lack the reproductive capacity to be sea turtles, so we are clearly more toward the k end of the reproductive continuum, but even so there is great variability in human reproduction. In pre-technological agricultural societies, it was not uncommon for a woman to bear up to a dozen children (although rare for all of them to reach adulthood). In hunter-gatherer societies the average was considerably lower, and in contemporary western industrial societies the number is–from a historical perspective–shockingly low. In the EU, the average woman reportedly has only 1.5 children.
The lesson from this is that natural selection can favor having fewer children. The key to whether it is evolutionarily successful lies in understanding the life history of the parent. Orangutans live in different environments and have different social structures than sea turtles, so a different reproductive strategy is evolutionarily appropriate. Shifting our focus from a comparison between species, we can also compare individuals within a species. The specific life history of a particular human female may dictate having fewer, rather than more, children as the best reproductive strategy. If having fewer children gives them a better chance of surviving to reproductive age than does having more children, then the greatest expected value comes from having fewer children.
For example, if a mother has ten children, each of whom has a .01 chance of surviving to adulthood, her expected value is 10*.02 = 0.2. If she has only one child, which has a .3 chance of living to adulthood, her expected value is .3. Basic cost-benefit analysis tells us to take the highest expected value, so in this case having one child gives a better chance of passing one’s genes into future generations than having 10.
If a mother wants to limit her number of children, then she must sometimes make choices about whether to keep a particular child. Historically, and cross-culturally, women tend to commit infanticide under conditions that match up with the preceding logic, such as a) when a child is defective, b) when a child is born too soon after a previous child, c) when the father is unlikely to invest in the child (suspicion of adultery, for example, or actual absence), or d) when the mother is young and unprepared to raise a child. Supporting this argument is consistent evidence that the overwhelming majority of child killings occur in the first year of life. It’s as though children pass through an evaluation period during which parents decide whether they are a good vehicle for parental investment or not. (Although the empirical data tends not to differentiate within the first year, anecdotal data suggests that most of those first-year killings take place within the first few weeks or even days. It is likely that this evaluation period is quite brief, and the great majority of infants closing in on their first birthday are likely to enjoy many more.)
Obviously it would be even better for those mothers if they didn’t have to carry those to-be-discarded infants to full term. In the pre-technological era, however, means of abortion were rare and dangerous, limiting the rational use of this option. Today, however, abortion–while not without risk–is safer than pregnancy and childbirth, at least when performed before the third trimester. So women who, at least in a different time and place in history, would have committed infanticide now rationally choose to move the act forward to an early moment, limiting the overall cost of the undesired pregnancy.
Operating on the assumption that infanticide will occur–that social rules and norms can only reduce its frequency to some degree, but not eliminate it–we can see abortion (again, at least early term abortion) as a more human method of infanticide. In that respect, at least, abortion should be quietly celebrated.
.
General Sources:
Trivers, Robert. “Parental Investment and Sexual Selection,” in Trivers, Social Evolution (1985).
Daly, Martin, and Margo Wilson. “Killing Kinfolks,” in Daly and Wilson, Homicide (1988).
Scrimshaw, Susan C. M. “Infanticide in Human Populations: Societal and Individual Concerns,” in Glenn Hausfater and Sarah Hrdy, Infanticide: Comparative and Evolutionary Perspectives (1984).
But I find the abortion debate particularly unenlightening. It consist of little more than two sides iteratively reciting a very limited set of very familiar arguments. There are no arguments pro or con which are less than 25 years old, yet each side continues to ritualistically invoke them as though mere repetition alone can change minds. My perspective is that neither side can convince the other because both side’s arguments have real power. Each has announced their own set of legitimate interests, but neither side has ever successfully rebutted the other side’s claim of legitimate interests, nor successfully demonstrated that their interests should always trump the other’s interests.
I want to examine the issue from a different perspective; a biological history perspective. I make no claim that this perspective will resolve the debate, but I believe both sides would benefit–intellectually, and perhaps morally, but not necessarily politically–from looking at abortion in this way. This is a bit long, as the biological argument requires quite a bit of setup, but if you’re game, please click the “continue reading” button.
The biological history perspective requires that we recognize abortion as a form of infanticide. Pro-lifers, of course, agree, but only because they see the term as having political power. Pro-choicers object, but only for the same reason. But as I repeat to my methods class daily, we are engaging in analysis here, not advocacy.
The historical fact is that infanticide has been practiced, with varying degrees of frequency and approval, in all cultures throughout history. For various reasons, mothers–and sometimes fathers–find the destruction of an infant to be in their own best interest. From a biological perspective, this is an interesting question because it means the destruction of their own genetic heritage, so it seems that evolution would tend to eliminate people with a tendency to do that, and favor those who are so attached to the concept of having children that they would never, under any circumstances, eliminate one of their own. The latter, after all, would leave more children, so their child-loving genes should, over time, come to dominate the population, while the child-killing parent’s genes should gradually diminish and disappear.
But that seemingly logical argument is superficial. It’s not simply quantity that matters evolutionarily, but quality. There are two approaches to reproductive success, the r and k strategies. The r strategy is to have very large numbers of offspring, but to put minimal parental investment into them. Sea turtles, for example, lay between 50 and 200 eggs (depending on the species) every few years, but after burying them in a sandy nest, leave them behind. Most of the babies are eaten shortly after hatching, but some survive to reproductive age. The k strategy is to have few offspring, but invest heavily in them. Orang-utans, for example, normally have one child at a time, which stays with the mother until sexual maturity at 6-7 years of age, during which time the mother will have no other offspring.
Human behavior is, compared to many species, very plastic, but it is nonetheless biologically based. We lack the reproductive capacity to be sea turtles, so we are clearly more toward the k end of the reproductive continuum, but even so there is great variability in human reproduction. In pre-technological agricultural societies, it was not uncommon for a woman to bear up to a dozen children (although rare for all of them to reach adulthood). In hunter-gatherer societies the average was considerably lower, and in contemporary western industrial societies the number is–from a historical perspective–shockingly low. In the EU, the average woman reportedly has only 1.5 children.
The lesson from this is that natural selection can favor having fewer children. The key to whether it is evolutionarily successful lies in understanding the life history of the parent. Orangutans live in different environments and have different social structures than sea turtles, so a different reproductive strategy is evolutionarily appropriate. Shifting our focus from a comparison between species, we can also compare individuals within a species. The specific life history of a particular human female may dictate having fewer, rather than more, children as the best reproductive strategy. If having fewer children gives them a better chance of surviving to reproductive age than does having more children, then the greatest expected value comes from having fewer children.
For example, if a mother has ten children, each of whom has a .01 chance of surviving to adulthood, her expected value is 10*.02 = 0.2. If she has only one child, which has a .3 chance of living to adulthood, her expected value is .3. Basic cost-benefit analysis tells us to take the highest expected value, so in this case having one child gives a better chance of passing one’s genes into future generations than having 10.
If a mother wants to limit her number of children, then she must sometimes make choices about whether to keep a particular child. Historically, and cross-culturally, women tend to commit infanticide under conditions that match up with the preceding logic, such as a) when a child is defective, b) when a child is born too soon after a previous child, c) when the father is unlikely to invest in the child (suspicion of adultery, for example, or actual absence), or d) when the mother is young and unprepared to raise a child. Supporting this argument is consistent evidence that the overwhelming majority of child killings occur in the first year of life. It’s as though children pass through an evaluation period during which parents decide whether they are a good vehicle for parental investment or not. (Although the empirical data tends not to differentiate within the first year, anecdotal data suggests that most of those first-year killings take place within the first few weeks or even days. It is likely that this evaluation period is quite brief, and the great majority of infants closing in on their first birthday are likely to enjoy many more.)
Obviously it would be even better for those mothers if they didn’t have to carry those to-be-discarded infants to full term. In the pre-technological era, however, means of abortion were rare and dangerous, limiting the rational use of this option. Today, however, abortion–while not without risk–is safer than pregnancy and childbirth, at least when performed before the third trimester. So women who, at least in a different time and place in history, would have committed infanticide now rationally choose to move the act forward to an early moment, limiting the overall cost of the undesired pregnancy.
Operating on the assumption that infanticide will occur–that social rules and norms can only reduce its frequency to some degree, but not eliminate it–we can see abortion (again, at least early term abortion) as a more human method of infanticide. In that respect, at least, abortion should be quietly celebrated.
.
General Sources:
Trivers, Robert. “Parental Investment and Sexual Selection,” in Trivers, Social Evolution (1985).
Daly, Martin, and Margo Wilson. “Killing Kinfolks,” in Daly and Wilson, Homicide (1988).
Scrimshaw, Susan C. M. “Infanticide in Human Populations: Societal and Individual Concerns,” in Glenn Hausfater and Sarah Hrdy, Infanticide: Comparative and Evolutionary Perspectives (1984).
Everybody Just Slow Down and Take a Deep Breath
A Republican has won Ted Kennedy's Senate seat! And a breathless media is desperate to enlighten us as to what it means.
A commentator on NPR said this means the American public is telling Washington D.C. that they're not focusing on the right issues. Funny, I didn't realize the American public as a whole got to vote in Massachusetts elections.
Others are claiming it represents a big shift in Massachusetts politics. Of course four of the last five governors of Massachusetts have been Republicans,* so another Republican winning a state-wide race is in itself no more newsworthy than a dog-bites-man story.
The media and the political junkies who hang on their every word love to discern national meaning in single local elections. But as another famous Massachusetts pol, Tip O'Neill, once said, "All politics is local."
A commentator on NPR said this means the American public is telling Washington D.C. that they're not focusing on the right issues. Funny, I didn't realize the American public as a whole got to vote in Massachusetts elections.
Others are claiming it represents a big shift in Massachusetts politics. Of course four of the last five governors of Massachusetts have been Republicans,* so another Republican winning a state-wide race is in itself no more newsworthy than a dog-bites-man story.
The media and the political junkies who hang on their every word love to discern national meaning in single local elections. But as another famous Massachusetts pol, Tip O'Neill, once said, "All politics is local."
19 January 2010
The Democrats' Mythical Supermajority
Massachusetts holds an election today to fill the late Ted Kennedy's position. The media are breathlessly reminding us how important this election is, as a Republican victory will kill the Democrats' "filibuster-proof" majority in the Senate. The media, as usual, are missing the real story.
At this point it may be difficult to remember the Democrats’ glee at gaining supermajorities in both the House and Senate. The House is a majority dominated institution, so having 59% of the seats there meant the Democrats could confidently allow a few defections and still steamroll a unified opposition. And with 60 being the magic number for imposing cloture and ending a filibuster in the Senate, all eyes were on the disputed Minnesota Senate race, which would determine whether the Democrats reached that paradisiacal plateau. And, oh, the joy when Al “Saturday Night Live” Franken was declared the victor. But now it is all coming to little, despite Republican’s alligator tears about the alleged onslaught of enslaving legislation being passed by Congress.
Some Democrats I know were looking back to the great civil rights and “Great Society” victories of the Lyndon Johnson administration as proof of what great things a Democratic president united with an overwhelmingly Democratic Congress can accomplish. In the 88th Congress, when the 1964 Civil Rights Act was passed, the Democrats controlled 59% of the seats (they had 259 then, to 257 now). In the next Congress, when the 1965 Voting Rights Act was passed, they had 295 seats—67%! * The Democrats’ Senate advantage was even greater: in the 88th Congress they controlled 66 seats, which increased to 68 seats after the ’64 election.** Clearly they were an unstoppable machine, and their strength seems to lend support to my one friend’s claim that the Dems need to rebuild their old New Deal coalition if they want to dominate once again.
But such a simplistic analysis overlook too much. Primarily it overlooks the fact that the South back then was still almost solidly Democratic, but very right wing. Strom Thurmond, one of the first major Southern politician to switch parties, only jumped to the Republicans in ’64. This dominance of the South by conservative Democrats—the infamous boll weevils—explains why the Voting Rights act received a larger share of the Republican vote in Congress than it did of the Democratic vote. 63% of Democrats voted for it, while 80% of Republicans did. Among Southern Democrats the vote was only for and 87 against—93% opposition. (The handful of Southern Republicans were even worse—10-0 against.) In contrast, 94% of Northern Democrats and 85% of Northern Republicans voted for it.***
The only way the Democrats could rebuild the New Deal coalition is to bring southern conservatives back into the party—something they have neither any chance nor any desire of doing.
But that helps us recognize the main problem in their push for a congressional supermajority, which is that they can only achieve it with the help of conservatives. The public has not made a major swing to the left, so the gains made by the Democrats were seats picked up either by more conservative party members or lucky liberals in conservative districts who can only hope to hold onto their seats by not straying too far from their constituency’s base beliefs. In other words, they party is hamstrung by the very members who swell their numbers to “unstoppable” status.
The only way the Democrats in the House can use their supermajority is to compromise to the point where their members representing conservative districts can safely come on board. And in the Senate it is even worse, as a single member can drop his drawers and make the whole party leadership kiss his naked ass to get his vote. Dare I say the Democrats might be better off without Al Franken’s seat? Because then they would not have the false hope of control, and would—paradoxically perhaps—have greater liberty to ignore Joe Lieberman.
Little evidence is needed beyond what looks to be the final shape of the health care bill. There’s not a liberal Democrat alive who—1 year ago—said, “I think it would be a great victory if we passed a bill requiring every American to buy health insurance,” but that’s what they’re reduced to now.
And by focusing on getting their whole party in line, the Democrats have opened themselves up to the charge that they’re just pushing through legislation on their own—high-handedly ignoring any interest in compromising with the other side. This is, of course, a stupid charge. No majority party has any duty to consult the minority, and of course the Republicans would do no different were they in the Democrats’ position.*** But even a stupid criticism can be effective, particularly when a crucial number of the votes that propelled the Democrats to their supermajority status came from solidly middle-of-the-road voters and even some who are more likely—as a general tendency—to vote Republican. Remember that all politics is local, so in normally Republican districts in which Democrats won (like mine), the swing voters that tipped the balance were voting for and against particular people or particular policies; they were not voting for wholesale Democratic dominance.
In his excellent short book Learning to Govern: An Institutional View of the 104th Congress, political scientist Richard Fenno writes about the difficulty of “electoral interpretation,” determining what your party’s electoral victory actually meant, which determines what kind of leash the public is holding you on.
The period following an election is a critical time for every victorious political party. It is the time during which the winners decide for themselves what their victory meant and how it will shape their future activity. It is for them to interpret the election results; and it is their electoral interpretation that becomes the essential link between the business of campaigning and the business of governing. Everything that follows in the new Congress will be affected by the postelection interpretation of the winners. (p.5)
Fenno’s argument is that the Republicans in the House blew it after the 1994 election, interpreting a referendum on Clinton as a mandate for policy revolution. It’s tempting to say that Democrats have repeated this same mistake—turning a referendum on Bush into a mandate for major policy change. But I think the reality is different. I think the Democrats made little effort at electoral interpretation. Focusing solely on numbers, they determined that this was, at long last, their chance to achieve the health care reform that has eluded them for half a century. Given the nature of American politics, if they could just once get it in place, it would probably be stuck in place for good, despite Republican claims of creeping (or galloping) socialism, just like Social Security. But in ignoring electoral interpretation they may have misjudged the public’s stomach for a government takeover of a major economic sector—what might have seemed normal in the 1950s seems quite abnormal now. And in counting the numbers they may have forgotten to look at the voters behind those numbers. In short, they have something of a mythical majority, or at least a mythical supermajority.
It’s a lesson all political observers ought to learn. But undoubtedly, neither the pundits nor the politicians will.
* All House numbers are from http://clerk.house.gov/art_history/house_history/partyDiv.html.
** http://www.senate.gov/pagelayout/history/one_item_and_teasers/partydiv.htm.
***This is what makes claims, such as this one, claiming the Republicans should be credited with passing the Civil Rights Act, basically false. The only identifiable group in opposition were Southern conservatives, who today form the base of the Republican Party.
***I cannot pretend that the Democrats never engage in hypocrisy themselves, but it seems to me that the Republicans have an unequaled propensity for whining when their opponents do precisely what they themselves would do.
15 January 2010
Is This Wrong?
I received the following email from a student (who will, of course, remain anonymous) recently.
And here is my response:
Is it wrong to reprimand an unsuspecting student this way? This is a frosh who's taking me for the first time, not an upper division student who knows me well, so this surely comes as a bolt out of the blue for him/her.
But in the past several years--and I literally mean just the last 3 or 4--this kind of email has become very common. I would not be surprised if the student sent it from his/her phone, which encourages all lower-case typing, but that's not necessarily the case. The IM style has infected regular email correspondence as well.
Let me note several things:
Or have I just become a cantankerous old bastard?
hey professor,
i wont be in class today because i have a doctors appointment. i kno you said that if we're not in class then you dont care where we are but i just wanted to make sure that you didnt think that i dropped the class or something like that. see you tuesday.
thank you
And here is my response:
The next time you write an email to me, please make an effort to use proper punctuation and grammar. Consider the impression that you are sending to people when you write this way. It is acceptable between friends for casual communication, but it is not acceptable in business communications.
Is it wrong to reprimand an unsuspecting student this way? This is a frosh who's taking me for the first time, not an upper division student who knows me well, so this surely comes as a bolt out of the blue for him/her.
But in the past several years--and I literally mean just the last 3 or 4--this kind of email has become very common. I would not be surprised if the student sent it from his/her phone, which encourages all lower-case typing, but that's not necessarily the case. The IM style has infected regular email correspondence as well.
Let me note several things:
- I don't think such a style is always inappropriate. As I noted in my response, it's fine for casual communication between friends.
- I don't intend this as a "students these days" kind of criticism. Only a fool could doubt that students in my day would have done the same had we had this technology. (I'm not immune to the tendency to think that students are getting worse every year, but that's just a function of age. I don't think the data that I have, casual as they are, support such a claim at all.)
- Despite left-wing criticisms of contemporary education as being just about creating good corporate citizens, the reality is that the vast majority of students I teach will end up in the business world in some capacity or other. Unless the norms of the business world change, communication-style will continue to matter, and styles that suggest (even if inaccurately) illiteracy will be detrimental to their success.
Or have I just become a cantankerous old bastard?
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