Thursday, August 28, 2008

Unintended Consequences, Intent, and Philosophy

In the context of discussing the causes and effects of income inequality, Will Wilkinson has a post up (which Megan McArdle picked up in turn) regarding the willingness of partisans and, really, most people to claim or imply that the unintended consequences of an opponent's policy preference are in fact the primary goals of that opponent.

Wilkinson writes:

I feel like there is an unarticulated doing/allowing issue floating around in the background in this debate. Say the U.S. Congress cuts top tax rates. Is this politics causing higher inequality? Or is this evidence of relative indifference about allowing higher inequality? The left has the tendency to characterize every policy that might allow income inequality to rise as one intended specifically to have this result. This is a lot like the right’s characterizing, say, workplace safety regulation as a specific attempt to stymie the growth of small business. In each case, those opposed to a policy see its side-effects as more salient than the primary effects intended by those who favor it. Imputations of bad faith — “you’re really after the side-effect and your stated intention is garnish for malice” — are never far behind.

Wilkinson is of course 100% correct about this, and this is something that can be observed in just about any political debate these days (and, perhaps, since the beginning of time).

In the context of discussion of income inequality, there is a tendency amongst some of those on the "Right" of the economic policy spectrum to view income inequality as a healthy sign of a level playing field demonstrating the existence of a strong meritocracy. Meanwhile, there is a tendency on the "Left" of the economic policy spectrum to view income inequality as proof of the opposite - far from demonstrating a meritocracy, significant (and growing) income inequality is proof of a self-perpetuating cycle in which those who are provided with greater opportunities due to their parents' economic well-being succeed and those who are unfortunate enough to be born in poor areas do not participate in economic growth. Thus, the Left will perceive policies that will inevitably have the effect of allowing the already-successful to retain more of their wealth as being intended to further entrench this self-perpetuating cycle. The Right on the other hand will perceive policies that will inevitably interfere with the operation of business as being intended to undermine the meritocracy.

But isn't there a third way of looking at this, though (and one which I suspect is probably closer to the truth)? Specifically, can't income inequality be, at the same time, both a sign of a healthy meritocracy and a sign of a self-perpetuating cycle? In that case, the result is that the "playing field" is level enough for many people to have social mobility, but not for other groups of people. That then raises the issue of how one maintains the social mobility for the former group while still seeking to obtain it for the latter group. I would argue that the answer to this lies in the idea that the factors that would make the playing field "level" are different for each group.

I am willing to concede that, in some/many circumstances, wealth redistribution may be what is required to give someone a realistic opportunity of participating in the "meritocracy." However, in other cases, wealth redistribution may actually reduce one's opportunity of participating in the "meritocracy" because of the various disincentives it provides (i.e., it can and at least in some - though by no means all, and probably not even most - cases does foster laziness amongst recipients while disincentivizing work beyond a certain amount by potential upper bracket-earners).

How one would go about solving this dilemma is probably far beyond any human's capability. Unfortunately, politicians and ideologues on all sides seem to think they have the answer. Some conservatives and libertarians, for instance, often believe that the answer lies in part in school choice because they figure that equal access to education is the ultimate leveler of the playing field and that school choice would provide such equal access. Liberals/Progressives on the other hand often tend to believe that the answer lies in providing stronger safety nets such as welfare benefits, minimum wages, etc.

The problem is that any of these proposals is, by necessity, a one-size-fits-all approach that will, as is the case with any policy, have unintended consequences as a result. So although each approach will almost certainly benefit some unknown number of deserving individuals, it will also almost certainly hurt an unknown number of others who do not deserve that hurt*. Moreover, because of the complexity of the economy, there is both no way of knowing whether any of these approaches will do more good than harm and no way of definitively proving whether any approach actually succeeded once implemented.

Ultimately, whether you think a particular policy is likely to have net positive/negative effects is probably entirely a function of one's political philosophy since there is no real way to demonstrate these effects conclusively. Personally, I think this is a particularly strong argument for libertarianism since I think that, without any real proof of whether a policy will be a net good or a net bad, one should err on the side of liberty and freedom. BUT, I can also see how this could be a particularly strong argument for Burkean conservatism (one should err on the side of tradition and existing norms which are the result of millenia of accumulated knowledge) and for modern Progressivism (one should err on the side of change when large numbers of people are hurting under the existing system).

*Politicians and policy advocates will almost always claim that the number of those benefited is, in fact, known and is equal to the number of people who are expected to receive the outlays of the policy. They will also imply that the policy will have no unintended negative consequences. This is poppycock, since, as I said, these policies are one-size-fits-all approaches to problems that have myriad causes (and in some cases may not even be problems at all).

(cross-posted as a comment at Megan McArdle's post)

Tuesday, August 26, 2008

Defending Originalism (Long)

Daniel Koffler, a blogger at The Art of the Possible approvingly links to a Richard Posner article at The New Republic critical of decision in the landmark Second Amendment case District of Columbia v Heller. As Koffler has also criticized originalism (also here), this presents a good opportunity to provide rebuttal to both of their positions. Please note that when I use the term "originalism", I will refer to "original meaning originalism" (interpreting the text based on the meanings as understood at the time of ratification). Any other "originalism", like "original intent" originalism, will be referred to by name.

I will not comment on Posner's article, as Ed Whelan cover much of the same ground I would (save for one major disagreement at the every end of the second point he makes...). I had anticipated to comment, but as I read Koffler's criticisms of originalism, I found that some of the criticisms I had reserved for Posner would apply here as well. In addition, as Koffler attempted a lengthy criticism on originalism, I thought it would present an opportunity to rebut his arguments.

Koffler, by using a construct of "Scalia Original Meaning", suggests that Scalia makes it up as he goes and engages in pseudo-sophistication under the guise of originalism while employing the same methods of interpretation used by living constitutionalists. Furthermore, things get a little more complicated because while some of the criticisms of Scalia or judges in general being ideologically biased have merit (Randy Barnett has argued that Scalia is not an originalist at all), it does not necessarily follow that Heller can not be justified on originalist grounds. Part of what I will need to do is, as best I can, separate the claims that can be made against Scalia's jurisprudence and focus only on originalism qua originalism.

Koffler's critique of originalism is very long and covers a lot of ground, but I will attempt to focus on three main criticisms: i) interpreting the Constitution according to its original meaning requires, in practice, the same leaps of faith employed by non-originalists to interpret text and meaning; ii) even if the original meaning of the Second Amendment were known, the right to own a handgun for self defense cannot be reconciled to the text; and iii) (2 parts) originalism is doomed to failure if we recognize that the text of the Ninth Amendment protects unenumerated rights and that Heller is radically damaging to libertarian readings of the Constitution.

Koffler attempts to decipher Scalia's interpretive method and argues that what Scalia is really doing is getting whatever meaning he wants out of the text. I disagree. The relevant portion of Scalia's opinion that comes under scrutiny is the following:

In interpreting this text, we are guided by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’ United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

From this, Koffler proposes a three-pronged approach to Scalia's interpretive method:

First, cast backwards to the temporal setting in which the expression was introduced into the law...but go no further than back than that. Second, determine the context of usage based on what, in present-day language, appears by a principle of parsimony to be the most salient context without consideration of any historical factors that might have shifted the saliences of alternate contexts. Third, ...keep up the exclusion of all historical or other information extraneous to the selected context and determine the ordinary and/or normal meaning at the time of the adoption of the expression into law in the context selected as salient by present-day semantic considerations, by evaluating all usage in the context selected in the second step and deleting all technical or otherwise specialized usages...

In my opinion, the only part of Koffler's three-part analysis that squarely reconciles to the Scalia quote above is Part 1 because Part 1 is the only part that deals with constitutional interpretation (i.e. determining the linguistic meaning of the text). What Part 2 and Part 3 represent, collectively, is constitutional construction, or the application of vague or indeterminate text in order to create legal rules pursuant to the meaning of that document, and nothing in Scalia's quote addresses construction. The distinction between interpretation and construction is crucial and is a key component of originalism. Randy Barnett, a noted originalist and author of Restoring the Lost Constituiton, in a recent post at The Volokh Conspiracy, writes (my emphasis added):

In my view, where the (original) meaning of the Constitution is vague, we should select constructions that are consistent with that meaning and that enhance whatever it is that makes a constitution legitimate. Because people operate with different implicit conceptions of legitimacy (e.g. consent, justice, democracy, etc.) there is marked disagreement about how to do construction. Of utmost importance is that, depending on their theory of legitimacy, originalists who are committed to respecting the original public meaning of the Constitution can still differ on how they think construction should be done and, even if they agree about this, they may differ in the wisdom of different constructions. But when these disagreements arise, it is very useful to know what it is we are disagreeing about: not the meaning of the Constitution, but how to put that meaning into effect.

Koffler, in describing Step 2, is not describing interpretation. Rather, he is describing constitutional construction, and he is doing so in a way that is wholly incompatible with constitutional construction in an orignalism framework.

Step 2 has no business whatsoever being included in a procedure for determining the original meaning of an expression. By applying contemporary considerations of the relative saliences of candidate contexts and having selected one and excluding all others from further work in the application of the semantic theory, one is applying a filter to the expression under consideration that cuts its ties to its original context. The derived context step 2 establishes is in fact roughly the way we would project an expression from an earlier period into the present and then try to make an inductive guess about its meaning — in other words, if we see the law as a body of doctrines that evolve along with language and with history, such that what is important about a legal expression is what it most plausibly means under contemporary lights, then step 2 is the way to go.

I am in complete agreement with his first sentence, but the rest of the paragraph is troublesome. Here, I believe he is not only confusing interpretation with construction, but also suggesting that going outside the text at all in any circumstances amounts to living constitutionalism. Yes, an originalist would apply the relevant facts and circumstances to a given case or controversy if text is vague and/or indeterminate. Yes, there is no one agreed-upon method that this sort of evaluation could be carried out which, admittedly, may lead to a possibility of conflicting conclusions (although I do not believe this to be the case for Heller). However, 1) original "context" is not important because it is "original meaning" is (to me, others may disagree) legitimate and therefore binding; 2) we are not "projecting an expression" in order to "make an inductive guess" about its meaning. We can ascertain the meaning of "commerce" or "necessary and proper" or "the right to bear arms". What we are doing is creating a rule of construction that respects the meaning or the underlying text and enhances legitimacy; and 3) although constitutional rules may be applied to situations that the Framers themselves never anticipated, it does not follow that originalists agree that the meaning of the text has somehow changed.

Koffler argues that, even if we did draw out the original meaning of the Second Amendment (although this has been determined), it would not apply to handguns:

If Scalia were indeed drawing out the original meanings of Constitutional provisions, incidentally, then he would conclude that the “arms” to which the 2nd Amendment refers would include in its domain things like muskets, old-timey artillery, sabers, etc., and definitely not Glocks. If the interpretation were loosened of literal constraints, it would open up to include military grade weapons along with handguns. The clear context in which the right to bear arms is embedded in the Constitution is as a check on tyranny — i.e., so that citizens could arm themselves and overthrow the government — and as armaments in a militia. In each case, the context ensures that military-grade weapons will be among those to which citizens have a right. If the scope of “arms” is broadened to include contemporary arms and not just the weapons of the colonial period, then the true spirit of Scalian originalism would find a Constitutional right to own AK-47s, rockets, tanks, F-14s, etc. Scalia of course rejects such an interpretation.

Nowhere in Koffler's construction of the word "arms" does he mention "weapons" or "pistols", either of which could have easily been constructed from the word "arms" and would certainly apply to Glocks. To do so would not be living constitutionalism, it would be a simple construction that not only ties to the original meaning of the word arms but also is a "legitimacy-enhancing" feature because of the construction, by permitting handgun ownership for self defense, does not infringe upon one's own natural right to self defense, a common law right predating the Constitution. The "literal constraints" are nothing more than vaguaries and limitations of a text that was written 200 years ago.

Suggesting that originalism would suggest that we have to allow a constitutional right to own a F-14, tanks, rockets, etc. implies a belief that rights are absolute and beyond the reach of the legislators, ignoring "appropriate" state police powers that regulate rightful conduct and prohibit wrongful conduct. Given the public health/safety concerns and the negative externalities associated with high explosives, bans on possessing those types of weapons are not unreasonable. There are probably a couple more reasons as well, but this brief explanation ought to suffice. I think originalist constitutional construction could lead us to these conclusions as well although I will not provide an example.

I am thrilled to see Koffler spend as much time as he does discussing the Ninth Amendment. I am pleased that he recognizes the importance of unenumerated rights as individual rights (some Ninth Amendment scholarship focuses on collective or majoritarian rights) and that arguments that rights do not exist on the basis that they are unenumerated is a non-starter (he uses privacy as his example). Such commentary is welcome and would make a great many libertarians pleased, even moreso if the discussion entailed the Privileges of Immunities Clause of the 14th Amendment.

That said, he seems to disparage originalism (no pun intended) on Ninth Amendment grounds:

So-called originalists loathe the concept because it creates a platform for reading elements into the Constitution that could have had no place in its original composition (like the “umbral” right, if you will, to use birth control, which follows from the penumbral right to privacy). But the problem for the originalist position — and the reason, I argue, it is ultimately untenable — is that the 9th Amendment is in the Constitution, and can’t just be read out of it without vitiating originalism.

Understandably, if one were to take Robert Bork's "inkblot" comment and associate it with originalism (his was in the context, if I recall, of original intent originalism), then it could lead someone to suggest what he says to be the case. However, originalism, especially understood by classical liberals and libertarians, makes the best case for protecting unenumerated rights both under the Ninth Amendment and the Privileges or Immunities Clause of the 14th Amendment. Randy Barnett goes into great length to argue this case in Restoring the Lost Constitution. If one does not have the text on hand, there are journal articles available at SSRN that addresss both of these parts of the Constituiton (9th here and 14th here).

If he is serious about the Ninth Amendment (and therefore serious about the Privileges or Immunities Clause of the 14th Amendment), then he should reconsider his argument that Heller is "radically damaging" to libertarian readings of the Constituiton and apply that argument to Griswold v Connecticut, which, in my view, is a legal abomination. Heller is a Second Amendment case where the majority protected an individual liberty against an overly intrusive government. That is very libertarian and refreshing to see someone finally recognize that the Second Amendment really does mean what it says it means. The Ninth Amendment was virtually read out of the Constitution decades ago (and was not the basis for the majority opinion in Griswold) so there is nothing Heller could have done that had already been done.

Why Griswold? Prior to 1937, the Court, under the Due Process Clause of the Fourteenth Amendment, did protect unenumerated rights, mainly economic liberties under what was known as "freedom of contract". Basically, the Court viewed that the terms in which contracts were to be established was a private matter. Therefore, maximum hours laws, minimum wage laws, laws preventing yellow dog contracts, etc. were struck down by the Supreme Court. Admittedly, these were (are) controversial cases (i.e. Lochner v New York) that draw ire from today's liberals and conservatives. There were also two key privacy-related cases involving education that were decided under the Due Process Clause of the 14th Amendment (Meyer v Nebraska and Pierce v Society of Sisters).

This changed dramatically in 1937 when the Supreme Court virtually repudiated this jurisprudence in West Coast Hotel v Parrish (upholding a minimum wage law) and further signifying the death knell in U.S. v Carolene Products in 1938 where, in a footnote (Footnote Four), the two-tiered system of rights we have today was basically established. In short, in practice, any potential violation of an enumerated right gets heightened scrutiny and unenumerated rights are left to the whims of democratic majorities. This is, obviously, very unlibertarian, but more importantly, it ignores significant portions of the text (like the Ninth Amendment).

Justice Douglas' Griswold opinion does two things: 1) it specifically repudiates the pre-1937 Due Process jurisprudence that can protect those rights not enumerated in the Constitution by employing a presumption of liberty and putting the burden on government to justify its action (under modern jurisprudence, the burden rests on the individual). Meyer v Nebraska would be a great precedent for Griswold; and 2) his "penumbras" are an attempt to suggest privacy as an enumerated right by suggesting that privacy has substantive protections in several of the enumerated rights in the Bill of Rights. Justice Goldberg's concurring opinion mentions the Ninth Amendment (and recognizes the protection of unenumerated rights) but the majority opinion does not. The fact that those "penumbras" may exist in the Ninth Amendment, as Koffler suggests, plays no role here because the majority opinion does not cite it.

Both Koffler and I agree with the substantive outcomes of both Heller and Griswold but take opposite positions on whether or not each case was well-reasoned. Yet, despite our disagreements, I am pleased by Koffler's attention to the Ninth Amendment and the protection of unenumerated liberties. That said, I am uncertain as to how far Koffler would be willing to take his argument. He speaks of being "plausible" under the Ninth Amendment without defining what "plausible" is (would he, for example, argue the federal minimum wage law unconstitutional under freedom of contract? Would he repudiate West Coast Hotel v Parrish?). Furthermore, how does view on the Ninth Amendment reconcile with the rest of the text (specifically Article I, Section VIII and the Tenth Amendment)?

I make these points largely in part because I do not know or presume to know Koffler's positions on these matters, but it also flows from my general skepticism towards advocates of "privacy rights" (mainly on the Left), who hold a very limited (if not perverse) view of what privacy really is. If he's interested, he is more than welcome to share them.

Monday, August 25, 2008

All Factions Serve Only the Faction's Purpose

Rather than point to George Will's column from yesterday criticizing Sen. Obama's economic rhetoric and writing "what he wrote", instead, a serious quibble. Will writes:

But back to requiring this or that quota of energy from renewable sources. What will that involve? For conservatives, seeing is believing; for liberals, believing is seeing. Obama seems to believe that if a particular outcome is desirable, one can see how to require it. But how does that work? Details to follow, sometime after noon Jan. 20, 2009.

I think I'm supposed to take a less unfavorable opinion of conservatives from this statement. I don't because it need only be reworked to be an equally devastating dismissal of conservative politicians. Like this:

... Conservative politicians seem to believe that if a particular outcome can be required, one can see how to achieve it. But how does that work? Details to follow, sometime after noon Jan. 20, 2009.

I could slip McCain's name into that for a specific example. Maybe let's put Bush in there. Whoever, about whatever. Let's include Joe Biden, now that he's politician most recently thrust into the national equation after being named the Democratic nominee for VP. Or circle back and discuss Obama. It does not matter.

The proper diagnosis is the flaw in politicians. We should probably reason our way to what is fundamental. That flaw is more pronounced in those who believe politicians and permit themselves to be pandered to by our great anti-statesmen. Having resolve is enough. A topic is just something to be tacked on to, and achieved through, resolve. That mindset thinks society demonstrates its resolve through what it requires. The sickness is the same, regardless of the symptom.

I doubt Sen. Obama believes any of his rhetoric about what is achievable for energy goals in the timeframes George Will critiques. I don't doubt that Obama doesn't care. The power to control and push is more important than the destination. It is the destination of the rhetoric.

Conservatives (and liberals) love declaring war on drugs. They believe that if they require compliance to abstinence, then poof, the problem disappears. Results do not matter. Years of prohibition of drugs and alcohol aren't lessons that the approach is ignorant, only that we haven't tried the correct requirement yet. Results related to the claimed objective never matter to politicians, regardless of the topic. Power is the purpose for all politicians.

When dealing with politicians, liberal and conservative are just adjectives the wise use to identify which brand of stupid is loose.

Post Script: The sentiment in this entry's title is probably obvious to anyone reading. I couldn't think of anything better (i.e. less literal). But since someone like George Will seems to have forgotten the point, maybe that's not so bad.