The Enlightened Despot

TNR has a review of Philip Hamburger’s Law and Judicial Duty by Richard Posner, and anyone who is at all interested in judicial review and has a little time on his hands should read it. If you are daunted by the length of the piece, but are sort of interested anyway, this is the post for you!

Hamburger’s book is actually more about the history of judicial review - the ability of the courts to strike down laws it deems in conflict with the Constitution - than about its merits or current practice. Specifically, it is written to contradict a common account of how the Supreme Court ended up with this power. To oversimplify horribly, this account holds that judicial review isn’t written into the Constitution, so John Marshall made it up in Marbury vs. Madison. Hamburger contends, on the other hand, that it wasn’t written into the Constitution because it was so thoroughly entrenched in our legal tradition that it just went without saying (again, a crude summary, but that’s the gist of it.)

I’m not going to dwell on the history - if that’s your thing, read the article, or, hey, even the book (a book is like a really long blog post with no links that you have to read offline). Briefly, Posner thinks Hamburger’s account is implausible, and I’m inclined to agree. For what it’s worth, my understanding is that the narrative he is arguing against is wrong too - my hazy recollection of the history here is that judicial review isn’t written into the Constitution not because everyone had agreed it was awful, or because it never occured to anyone, but because the framers couldn’t agree on whether we should have it, so they agreed to punt instead. This, I would argue, has not worked out so well for us.

In any event, the real meat is what the history means for the theory. I’ve always thought of the Marshall-made-it-up view as something judicial review’s critics liked to harp on, for fairly straightforward reasons. Hamburger points out that this is also an appealing narrative for advocates of aggressive judicial activism. Since the very right of the courts to strike down laws was established by a ruling that strays very far from the letter of the Constitution, it goes without saying that judges are free to appeal to “the spirit of the law” in exercising it. How can a strict constructionist justify evaluating laws in the first place?

If one accepts Hamburger’s history, this isn’t a problem. Judges can’t quite be confined to the letter of the law, since the Constitution doesn’t say anything about judicial review, but, since the framers thought this power went without saying, you can get by with “the intention” of the law, without getting into this spirit nonsense. Hamburger thus advocates for “judicial modesty”, and while he mostly sticks to the history, the implication is that the judiciary should be far more literal in their interpretation.

I think Hamburger is wrong on the history, but, as regular Despot readers will no doubt have detected by now, I am very much in his camp on the theory. Indeed, I’m a little farther in his camp than he is. There is a narrow sense in which it is impossible to derive any meaning from any form of language without reference to intention (see Grice, though he takes it too far), but past that, we’re better off without them, the foolishness of consulting them in interpreting texts has been particularly well demonstrated*, and when a text is written by a large group  of people who don’t agree about much of anything, worrying about intentions is completely inane. As for the spirit of the law, if such a thing exists, it should be the concern not of the judiciary, but of the Ghostbusters. I, for one, feel haunted.

The frequency with which the word ’surge’ crops up in discussions about Afghanistan is a testament to just how few terms and ideas people are willing to worry about at once. It is the stated position of our incoming president that we need more troops in our fight against the Taliban and other militant groups in the region. Indeed, this has been conventional wisdom for some time now, and was a point of agreement between Obama and McCain during the election. Obama did not, however, use the word ’surge’ to describe what was needed in Afghanistan, at least initially. (He may never have done so, but the word has infected the discourse so thoroughly that I doubt he’s avoided it altogether.)

Of course, it shouldn’t matter what we call our military initiatives. A surge by any other name would work as effectively. But more and more, the use of this word seems to be feeding the mistaken notion that the desire to send more troops to Afghanistan is a reaction to the success of the surge in Iraq, or at least that the latter should serve as a starting point for our thinking about the former. Here’s Kevin Drum, who is actually at the sensible end of this sort of talk:

The theory behind the surge in Iraq was that a relatively small number of additional troops could make a difference if they were concentrated primarily in Baghdad, where three or four brigades would represent a near doubling of forces. Baghdad was considered so central to Iraqi security that if it could be pacified, it would make an enormous difference in the rest of the country too.

That’s not true of Afghanistan. Obviously Kabul has to be safe, but it doesn’t play the same outsize role that Baghdad does in Iraq. Nor are any of the other factors that helped the surge succeed present in Afghanistan. It’s just a mess. Denying al-Qaeda a safe sanctuary is an important goal, but if even Kabul isn’t safe anymore, it means we’ve got a very, very long road ahead of us before we can make that happen. I don’t envy Barack Obama the choices he has ahead of him.

As far as these things go, this is pretty sensible. Certainly we should draw what lessons we can from our experience in Iraq. But there is a suggestion here, explicit in much MSM reporting, that the wisdom of increasing troop levels in Afghanistan depends on the presence or absence of “the factors that helped the surge succeed”, and there is nothing sensible about that. The one truly relevant similarity is that in Afghanistan today, as was the case in Iraq before the surge, we don’t have enough troops to maintain order. But this has been true since before the surge even began, indeed since around the time the Iraq War itself began. Consider The Economist, writing in October of 2003:

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Guns - we has them:

Fear not, gun-owners: Obama can’t possibly bring us down enough to lose our number-one global ranking.

Here’s the top five: US at 89 small arms per 100 people, Yemen at 55 (a gun-&-knife-toting culture without peer in the uncivilized world, but we still kicks their asses!), Switzerland at 46 (who knew?), Finland at 45 (still expecting the Russians), and Serbia at 38 (just got in the habit, I guess).

It’s pretty clear from the tone how Barnett feels about this. And, to be fair, that is a pretty striking gap between us and everyone else. But the high scores for Switzerland and Finland are yet more evidence for what I’ve always thought was pretty obvious: while the fact that we have tons and tons of guns and the fact that we have a shockingly high homicide rate are obviously related, we aren’t talking about a straightforward cause and effect relationship here. There is a tendency among gun control advocates, as we see in this post, to acknowledge this, do a little hand-waving, and then pretend it never came up. (See Bowling for Columbine. Actually, don’t.)

In fact, there’s no need to look to the Finns to make this point - it’s pretty easy to demonstrate looking just at the U.S. itself. A quick glance at state-by-state data shows that the parts of the country most responsible for our status as champion gun owners are not the parts of the country most responsible for our status as champion murderers. You might get a different impression browsing the academic literature, for instance this study done at Harvard, the press release for which was entitled “States With Higher Levels of Gun Ownership Have Higher Homicide Rates”. If you find that surprising, that’s because it’s false.

Relevant chart after the jump.

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I had more fun reading this post from Josh Patashnik than I’ve ever had reading about an obscure piece of Constitutional law:

Adam Bonin and Eugene Volokh weigh in on the debate over the application of the Emoluments Clause of the U.S. Constitution (Art. I, § 6, cl. 2), which provides:

No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time: and no person holding any office under the United States, shall be a member of either House during his continuance in office.

As it happens, the secretary of state’s salary was increased by executive order this past January, which would seem to clearly disqualify her from the job. The relevant debate here is whether the so-called “Saxbe fix” (named after Richard Nixon’s last attorney general, former Sen. William Saxbe of Ohio, who ran into the same difficulty Clinton is facing now) would rectify the problem: couldn’t the salary just be lowered to where it was prior to the beginning of Senator Clinton’s current term?

The answer hinges on whether the phrase “have been increased during such time” refers to a net increase over the period of time in question, or to any individual instance of an increase. If it’s the latter–which, according to the two Emoluments Clause experts (isn’t legal academia wonderful?) quoted at length by Professor Volokh, is the more reasonable reading of the clause–then Clinton would be ineligible to serve as secretary of state until 2012 and nothing could be done about it.

Volokh prefers the ‘net increase’ version:

Here’s my very tentative thinking: I think the phrase “the Emoluments whereof shall have been encreased during such time” is ambiguous. It could mean “shall have been increased at least once,” or it could mean “shall have been increased on net.” If you’re thinking about buying a computer, for instance, and you ask “Has the price of this computer been increased during the last year?,” it seems to me quite possible that you would mean “Has it been increased so that it now costs more than it cost a year ago?,” rather than “Has it been increased at all, even if the price hike was entirely rolled back a month later?”

I think this is obviously wrong.

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While a lot has happened in the polls since the first installment of my forray into election projections, I’m going to ignore actual polling data for now and focus on potential systematic problems with polling in general. When a pollster says that its latest data on the election has an x point margin of error, they are, funnily enough, not claiming that the numbers they are giving you are within x points of the actual percentages of voters who would have voted for each candidate if the election had been held on the day of the poll. Instead, they are claiming that, assuming their sample was truly random, there is a (usually) 95% that their figures are within x points of the figures you would get if you asked everybody. The advantage of making this latter determination is that it’s possible to do so. (In fact, it’s easy. Give it a whirl.) The major disadvantage is that the initial assumption - that any member of the population in question is equally likely to be polled - is doing quite a bit of work here, despite the fact that absolutely everyone knows it to be false. The hope is that groups that aren’t so big, holding views that aren’t so different from those of the population at large, are being underpolled by not so great a margin as to make the results all that much less accurate than they purport to be.

All of which is a long way of saying that there are factors that could be screwing up polling data. Here are some candidates:

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Back in the early days of the Despot, I argued that Intrade was the place to go for election predictions:

President McCain futures are trading at 43.7 over at Intrade at the moment. It would be a stretch to call guessing about politics an efficient market at this point, but as a rule it’s always better to listen to people who are paid to be right than to people who are paid to say clever and interesting things. As far as I know, Intrade is the best game in town for the former.

I still believe that the principle here is correct. Certainly Las Vegas is far more reliable than ESPN when it comes to predicting the outcomes of sporting events, and anyone foolish enough to take stock tips from magazines should think again. The inefficiency of this particular market, however, is pretty staggering. This shouldn’t be all that surprising, as a market in which Americans cannot legally invest has a serious handicap when it comes to predicting U.S. elections. As it turns out, it’s fairly easy to see the nature of that inefficiency by looking at the presidential election markets over the past few weeks.

The basic problem is that Intrade’s Obama/McCain futures are far too closely tied to polling trends. Here is a graph of the Obama market over the past month:

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Palin scandals are a dime a dozen these days. The sheer number of them, the fact that many have proved to be nonsense, and the lack of a smoking gun in any of them have led (I feel) to a consensus that there is quantity but no quality, that nothing but a few quasi-lies and position reversals (I hate the term ‘flip-flop’) is likely to emerge. This is wrong. There is still a very real chance that a game-changing - if not game-ending - piece of evidence will emerge. Here, as I see it, is the GOP’s biggest liability:

One of the less discussed scandals concerns the role Todd Palin’s role in his wife’s administration as governor of Alaska. A number of Palin-opponents have levelled the charge that Todd - who had no official connection to government - played an inapropriately active part in running the state. A summary of these charges can be found here.

As the article mentions, a seperate group of Palin detractors, looking into Troopergate, requested a huge number of emails from the governor’s office under the FOIA. Many of those messages were denied based on executive privilege, usually under the heading ‘Deliberative Process / Executive’. The denied emails include messages sent to or from Todd Palin. Some have argued that this is damning in and of itself, as it shows that Todd was involved in matters he should not have been; I doubt that this line of attack on its own has legs.

What should have the McCain camp worried is the attempt to revoke executive privilege for all emails for which Todd was the sender or one of the recipients, on the grounds that he is not a state employee. I have no idea how clear cut the laws on this are, but I do have the very strong sense that if these emails are released, Palin will be, in both a legal and political sense, completely fucked.

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Rick Shenkman, over at the WaPo, makes the obvious point that voters are stupid (h/t Ponnoru). He attacks a number of (supposedly) commonly held beliefs about how clever the electorate is, including the following:

Bill O’Reilly’s viewers are dumber than Jon Stewart’s.

Liberals wish. Democrats like to think that voters who sympathize with their views are smarter than those who vote Republican. But a 2007 Pew survey found that the knowledge level of viewers of the right-wing, blustery “The O’Reilly Factor” and the left-wing, snarky “The Daily Show” is comparable, with about 54 percent of the shows’ politicized viewers scoring in the “high knowledge” category.

So what about conservative talk-radio titan Rush Limbaugh’s audience? Surely the ditto-heads are dumb, right? Actually, according to a survey by the Annenberg Public Policy Center, Rush’s listeners are better educated and “more knowledgeable about politics and social issues” than the average voter.

This result was kicking around the blogosphere back when the study was first released, and I remember thinking “Wow, I never would have guessed that!” But I suspect I must have out of sorts, because reading it again this morning I thought, “Hmm, this seems obviously false.” Further investigation was needed, of course, but I had compelling prima facie evidence that Jon Stewart’s viewers are better informed than Bill O’Reilly’s, namely that the latter group is willing to watch The O’Reilly Factor.

Before moving on, it’s worth noting that this has nothing to do with the politics of the two fan bases. One doesn’t suspect O’Reilly’s fans are less well informed because they’re conservative; one suspects this because his show is made for troglodytes. If we compared the knowledgeability of Public Interest readers with that of Cheech and Chong fans, we would expect the opposite result.

On to the study itself, which was conducted by the Pew Research Center, ‘a nonpartisan “fact tank”‘. Any organization that needs scare quotes to describe itself warrants suspicion. Casually skimming over its contents, the reasonably astute reader will almost immediately notice that the researchers received the data, analyzed it, drew their conclusions, and wrote them up, all over the course of about four hours of heavy drinking. That, at least, is the conclusion suggested by the principle of charity. Consider:

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There can be only the most respectful disagreement between even distant cousins in the ‘the Great’ family, but I must say I’m not convinced by Frederick’s analysis of the Palin pick. The basic insight is a good one: since there is relatively little effective difference between a narrow defeat and a blowout, a strategy can make the latter much more probable and still be rational. Certainly she is a very real risk to become a major liability, and perhaps she also has a shot to be a major boost. But I suspect this hurts McCain’s chances overall, for the following reasons:

1.) I’m don’t see her having quite as much upside as Frederick suggests. As best I can tell, her job is to take over the role of Republican candidate while McCain vies for independents. She is certainly doing a terrific job of thrilling the base, so she could draw out a bigger conservative turnout than McCain could have, but - by becoming the most prominent figure in the race - she might well be making it impossible for McCain to gain much ground with moderates.

2.) That said, I agree that their is at least a non-negligible chance that this strategy provides a major boost to the ticket’s performance, but I still think the graph is misleading, because I see no reason to think that the potential upside is as great or as probable as the potential downside. Given what we already know (the ongoing ethics investigation, another possibly following it, the suspect firings in Wasilla, the improper involvement of Todd Palin in executive matters, the chance that that involvement could lead to damaging emails losing the protection of executive privilege, the possible affair, the Jimmy Hoffa connection, etc.) there is a decent chance that some of her baggage could cause huge damage to the campaign. I don’t see how even the best possible realization of the Palin strategy could match this downside. Furthermore, it is almost certain that some of these scandals will end up doing at least some damage, which means the strategy has some work to do before it can break even.

3.) While it is true that McCain should be (more or less) indifferent between a narrow loss and a landslide, it does not follow that he should be indifferent to different levels of potential harm from a particular decision when both would lead to defeat based on current polling numbers, because none of these decisions exists in a vacuum. That is, when weighing potential VP picks, possible downsides of two points and ten points are not equivalent simply because either would suggest a lost based on where we are now; all sorts of other factors could shift things in McCain’s favor such that he would win with a VP that did nothing for, or even slightly damaged his polling, but still lose with a VP implicated in a major scandal.

4.) Building on this last point, even though McCain had been trailing consistently, treading water would not have been an entirely hopeless strategy, as any number of things could happen to shift things. An Obama scandal could surface; Cheney could start a war with Iran; someone on the Democratic side could commit a hymie-town-level gaffe in a public setting. A McCain campaign barely trailing could capitalize on such an event; a McCain campaign in shambles might not be able to. So while a high risk strategy such as this could certainly be the rational choice, the price has to be right. With Sarah Palin, I don’t think it is.