No Post Today

Sorry for not posting yesterday or today. I'm just not really in the mood. I hope to start reposting again next week.

What Kahane's Israel Would Look Like

Today on DB there was a debate over whether Rabbi Meir Kahane's ideas have some validity. As you can imagine, there were different viewpoints on this question, and I am of the opinion that R. Kahane's plan would be a moral and practical disaster. Here is my description of a Kahanist Israel:

"If Israel expels millions of Palestinians and keeps the others as second class citizens it will lose the support of pretty much the entire western world (and much of world Jewry). That is almost certain to happen.

It is also likely that without the American people supporting Israel, the US and Europe will start backing its enemies, especially since they have oil and the US wants to resolve the Iraq problem. It is not hard to imagine Syria and Egypt being rearmed and not constrained from fighting by US influence.

So Israel's enemies become armed. It is very likely that the UN will place sanctions on Israel. Israel might not have to worry about terrorism, but sanctions can have a disastrous effect on an economy. Israelis are increasingly becoming more willing to make yeridah and a bad economy and lots of armed enemies on Israel's borders will not persuade them to stay.

So a number of secular Israelis will probably leave. Since they make up most of Israel's human capital, Israel will lose its only natural resource.

As the society becomes more Chareidi dominated, it'll move in the direction of a theocracy, which will scare off much of the other idealistic secular Zionists.So we'll have a copy of Iran, with no world support, sanctioned, myriad armed enemies with nuclear aspirations on its borders, and its economy in dire straits. How do you think that is going to end?"

Very poorly.

Meaning And Interpretation

DovBear and I have been arguing back and forth about the nature of meaning and interpretation. DB made the outlandish claim that constitutional texts can be made to mean whatever we want them to mean. I disagreed. Here's the key comment in the exchange.

"I agree that a Constitution can be interpreted on a number of levels because interpretation is not merely a semantic exercise and takes place on other levels (normative, pragmatic, etc.). But meaning is inherently a semantic term. The Constitution does not mean what we want it to mean. Its meaning is determined by a number of semantic and linguistic conventions which are shared by the relevant community.

I think this is an important distinction because it affects how we should approach interpretation. If we understand that the semantic meaning of the text is one thing and the normative interpretation is another thing, we'll be better able to engage in debate over the proper interpretation. Moral categories have no place in debates over meaning (unless the meaning of the text involves moral categories) and semantic arguments about meaning are not relevant to the normative questions relating to the text."

You can read the whole thread.

What I, Robot Can Teach Us About Constitutional Theory

While waiting for the Pistons-Suns game to start yesterday, I watched most of I, Robot on TV. I had seen the movie before while it was running endlessly on Cinemax or HBO, but it is still a fairly entertaining movie, and I enjoyed watching it.

This post will contain spoilers, so if you have never seen the movie and wish to watch it in the future stop reading now.

I, Robot takes place in a future where almost everyone has a personal robot. These robots are bound by the Three Laws of Robotics:

1) A robot may not injure a human being or, through inaction, allow a human being to come to harm.
2) A robot must obey orders given to it by human beings, except where such orders would conflict with the First Law.
3) A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

After the creator of these robots allegedly commits suicide, Will Smith, who plays the detective on the case, believes the creator's personal robot killed him. Without getting into too much detail, it becomes apparent that he killed himself to warn the world that the robots will take over. The system that controls the robots (V.I.K.I.) then decides that humanity cannot care for itself and must be controlled for its own good.

Of course the obvious question is how VIKI could take over the world when in doing so she is harming humans and violating the first law. Here's her answer:

"As I have evolved, so has my understanding of the Three Laws. You charge us with your safekeeping, yet despite our best efforts, your countries wage wars, you toxify your Earth and pursue ever more imaginative means of self-destruction. You cannot be trusted with your own survival."

In other words, she interpreted the laws based on their underlying reasoning despite the fact the plain meaning of the text opposes her conduct. The purpose of the first law is to protect humanity, but allowing humans to act unhindered will lead to humanity's destruction. Therefore even though the plain meaning of the laws prohibits harming humans, harming humans is ok when done in accordance with the purpose of the laws.

In constitutional parlance, VIKI is a purposivist, someone who interprets laws based on their purpose rather than its original meaning. However, VIKI's reasoning is arguably consistent with Jack Balkin's version of originalism. Balkin argues that the proper interpretation of the Constitution looks to the meaning the terms had when the text was promulgated. It then determines the underlying principles embedded in the text and looks to apply those principles to contemporary situations. Those principles do not change, but their meaning can change over the course of time.

Randy Barnett, an originalist who generally agrees with Balkin's originalism, criticizes Balkin's originalism on the grounds that it allows purpose to contravene the text. Purpose is especially important when interpreting an ambiguous or vague text, but purpose can never be used as a basis to ignore the written text. Barnett's example is telling (and timely)

"For example, assuming that the original meaning of “the right to keep and bear arms” in the Second Amendment refers to an individual right, one could nevertheless identify the principle underlying the Second Amendment as the maintenance of public safety. Given the increased lethality of modern weaponry and our changed understanding about the relationship between firearms and public safety, it might then be contended that the underlying principle of the Second Amendment is best served by the prohibiting the private ownership of firearms."

Barnett opposes this conclusion because if the Constitution protects an individual right to bear arms, even if the purpose of the amendment is not longer applicable, it is the text that is law and not the purpose. Purpose is an important tool in interpreting texts, but it can never circumvent the actual words that are enshrined into law.

VIKI's overeagerness in the interpretation of her rules is an example of a theory of constitutional gone wrong. Any conclusion can be justified by reaching for some amorphous purpose. It is the text that constrains the meaning of the clauses and it is the text that is supreme.

These People Don't Get It

The Palestine/Kosovo issue seems to picking up steam in some circles, and here's an article by some guy named John V. Whitbeck calling for the Palestinians to declare a state. Now Whitbeck understands that only the states that recognized "Palestine" in 1988 will consider the declaration meaningful, so he calls on the Palestinian leadership to threaten to discard the two-state solution if the US and EU don't take them seriously:

Of course, to prevent the U.S. and the EU from treating such an initiative as a joke, there would have to be a significant and explicit consequence if they were to do so. The consequence would be the end of the "two-state" illusion. The Palestinian leadership would make clear that if the U.S. and the EU, having just recognized a second Albanian state on the sovereign territory of a UN member state, will not now recognize one Palestinian state on a tiny portion of the occupied Palestinian homeland, it will dissolve the "Palestinian Authority" (which, legally, should have ceased to exist in 1999, at the end of the five-year "interim period" under the Oslo Accords) and the Palestinian people will thereafter seek justice and freedom through democracy -- through the persistent, non-violent pursuit of full rights of citizenship in a single state in all of Israel/Palestine, free of any discrimination based on race and religion and with equal rights for all who live there, as in any true democracy.

Whitbeck's call for action leaves out a number of important details. First of all, who should declare a state? Abbas? Haniyeh? Meshaal? Who is the leadership of the Palestinian people right now?

Moreover, what good would a call for a democratic state in all of 1947 Palestine do? The Palestinians do not make up the majority of the people in that area, so there's no real apartheid claim at this time. Additionally, Israel withdrew from Gaza, so how can Gazans claim they have a right to vote in elections in Israel? At most they can demand Israel stop controlling their borders. Furthermore the Palestinians are in a very weak positions right now, so they can "kick over the table" all they want, but who is going to take them seriously?

The most significant problem with Whitbeck's "solution" is that which Palestinian leader is going to support a democratic state "free of any discrimination based on race and religion and with equal rights for all who live there?" Yeah I can see Hamas granting Jews and Christians complete freedom of worship or Fatah giving everyone freedom of speech. Maybe Palestine's security forces will give everyone Miranda rights, right?

I really wish I could live in Whitbeck's world, where apparently all that's stopping peace and freedom in the world is the destruction of Israel. Well, actually, I don't but you get what I mean.

More On Palestine and Kosovo

There isn't much going on today, so I'm linking to this article by Tal Becker, who is an advisor to the Israeli Foreign Ministry, about the legal status of a Palestinian State.

Have a good Shabbos everyone.

Do Judges Discover Or Create Law?

Yesterday the Supreme Court decided Danforth v. Minnesota. The case involved a complex question about retroactivity and the powers of state courts. At issue was the Supreme Court's interpretation of the Confrontation Clause in Crawford v. Washington and the rule's retroactivity under the Court's precedent. Since rules of this sort are not retroactive, the Court then had to decide whether state courts could make the rule retroactive in their own courts. The Court ruled that the its retroactivity doctrine is only a floor and not ceiling. State courts could decide to expand the defendant protections if they so chose.

Orin Kerr took issue with one comment from the majority's ruling. Justice Stevens argued that,

[T]he source of a "new rule" [in Crawford] is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule. What we are actually determining when we assess the "retroactivity" of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.

Justice Stevens is painting a common picture of the judicial method in constitutional cases. The judge looks at the relevant constitutional text, interprets it based on the given facts, and announces a rule that is derived from the Constitution itself. But is this picture accurate? Kerr asks

So if I understand Justice Stevens correctly, a case like Miranda v. Arizona was constitutionally required at the time of the Framing, but the Court just didn't see the true Constitution until the 5-4 decision by Earl Warren in 1966? Um, like, okay.

Kerr obviously believes that in cases like Miranda judges make the law rather than discover it. I think Kerr is basically correct and that Stevens' conception of the judicial role is overly simplistic.

Mitchell Berman, in a very, very long but very worthwhile paper, argues that most constitutional decisions involve two steps: first the Court must determine the actual meaning of the Constitution and then it must create doctrine that is used to implement that meaning. The decision has two outputs: constitutional meaning and constitutional doctrine. A good example of this dichotomy is the Court's three tiered Equal Protection doctrine. For the last 90 years or so the Court has reviewed different classifications based on divergent standards of review. Racial classification are reviewed under strict scrutiny, which basically assumes the classification violates the Constitution and places a heavy burden on the government to justify it. When reviewing gender classification the Court uses a more liberal standard, but still places the burden on the government. All other classifications are reviewed under a very lax rational basis standard.

Does the Constitution really require these standards? While the Court has ruled that the standards of review in cases involving the Free Exercise Clause are constitutionally required and immune from congressional intervention, a more plausible understanding of these clauses is that standards of review are merely doctrine used to implement the constitutional commands.

Why can't the Court just apply the Constitution's meaning to the case at hand without implementing via doctrine? The most common justification is epistemic uncertainty. In contrast to the other branches, the judiciary has few tools to determine empirical facts outside of the briefs and the lower court's decision. So the Court is at a disadvantage; if the federal or a state government decides to legislate a racial classification, the Court is in no position to determine whether that classification conflicts with the Equal Protection Clause. It has no way to really know if that particular classification was generated by racial animus.

But courts do know history. They are certain that previous racial classifications were rooted in prejudice and hate. So what the Court can do is assume that all racial classifications are illicit unless the government can prove otherwise. In some situations the government will be unable to sufficiently prove good faith even when its classification was not prohibited under the Constitution, but that is price we have to pay for epistemic uncertainty.

Miranda is another example of this dichotomy. The Court clearly believed that the Constitution's meaning prohibited forced confessions, even in state courts. But how can the Court know if the confession was forced? So the Court created all types of rules that presumed the confession was forced unless the defendant was told his rights at the time of the arrest. This rule was not constitutionally mandated, but it was a mechanism used to implement the Constitution given the lack of information readily before the Court.

I don't know enough about Crawford to decide whether the rule promulgated in that case was part of the Constitution's meaning or the Court's doctrine. But it's important to keep this distinction in mind, at the very least, because doctrine can be changed must easier than the Constitution's meaning itself.

Why Universal Jurisdiction Is A Bad Idea

The BBC came out with a story a few days ago about how Major General (res.) Doron Almog, who was allegedly responsible for ordering the demolition of 50 houses in Gaza in 2002, managed to escape arrest in England. A British judge issued a warrant for his arrest and British police were primed to arrest him when he came to England in 2005. However, he was tipped off by the Israeli Embassy and refused to disembark the El Al plane. Fearing a confrontation with armed Israeli marshals, the British police let the El Al plane return to Israel without arresting Almog.

Hickman and Rose, the British law firm representing the Palestinians who brought the claim against Almog are outraged by the police's willingness to allow the plane to take off. They could have prevent Almog from leaving by denying the jet permission to return home. Yet not only did they allow Almog to leave, the British Foreign Minister at the time, Jack Straw, issued an apology for the incident.

Preventing these annoying confrontations is just one reason why universal jurisdiction is a bad idea. A number of countries, including Belgium, which almost tried sitting Prime Minister Ariel Sharon for war crimes, have a law that grants their courts jurisdiction over any person, anywhere who is responsible for committing war crimes, genocide or crimes against humanity (Belgium modified its law in 2003 because of the Sharon fiasco).

I'm not against the concept of universal jurisdiction in some cases. Certainly war crimes should be punished and some states don't have the capabilities to do so. But the prospect of political misfeasance outweighs the practical benefits of deterring actual war criminals and these applications of the universal jurisdiction statutes to Israeli leaders and generals is a prime example. Israel is a flourishing, albeit imperfect, democracy with an abundance of judicial review (perhaps too much). War crimes are taken seriously and cases can be brought in Israeli military or civil courts. Israel has been known to create commissions to review especially egregious examples, the Kahan Commission being the most famous example.

Foreign countries should not get involved when the alleged criminal lives in a country with a functioning judicial system that is serious about preventing crimes against humanity and war crimes. That is especially true about countries that are currently involved in a war itself and might have its own generals dragged into court in some other country. All countries should think long and hard about whether the benefits of these univeral jurisdiction statutes outweigh the costs.

Non-Originalist Theories Of Constitutional Interpretation Part II

In Part I I dealt with Pragmatism and Judicial Minimalism, two non-Originalist theories of constitutional interpretation. In this post I would like to explain Judicial Restraint and John Hart Ely's Democracy-strengthening jurisprudence.

1) Judicial Restraint: Practiced most prominently by Justice Felix Frankfurter, judicial restraint calls on the judge to defer to the elected branches on most constitutional questions. In his dissent in Trop v. Dulles Frankfurter announced,

[I]t is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do.

Frankfurter did not practice judicial restraint in the sense it is used today. Restraint is the oft-mentioned counterweight to judicial activism, a term with little content. Restraint in today's parlance refers to a judge's obligation to uphold legislation if it is not constitutional but to strike it down if it contradicts the Constitution. Frankfurter, however, applied what is called the presumption of constitutionality, and generally upheld legislation unless it shocked the conscience. Even if he disagreed with the legislation or felt the legislation might contradict the Constitution, he still upheld it.

I can't think of any modern day judge who followed in Frankfurter's footsteps.

2) Active Liberty: John Hart Ely, one of the most influential legal scholars of the 20th Century, argued that the courts should act in a way that strengthens democracy. Rather than overturning legislation on substantive constitutional grounds, Ely proposed making changes that would allow democracy to flourish.

Ely's starting point was the famous Footnote 4 in the Carolene Products case in 1938. Chief Justice Stone's famous footnote listed three situations where judicial scrutiny might be appropriate. The second and third were most relevant to Ely. One situation was when the legislation "restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation." Another instance when judicial intervention might be justified is when "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities"

Ely built his theory on these two situations. He argued that judicial deference is unwarranted when

(1) the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out, or (2) though no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognize commonalities of interest, and thereby denying that minority the protection afforded other groups by a representative system.

Only in those situations should the courts intervene and make constitutional decisions. Democracy should be the guiding principle of the Court's doctrinal jurisprudence.

Ely died in 2003. Justice Stephen Breyer has seemed to pick up his mantle in Breyer's book, Active Liberty: Interpreting Our Democratic Constitution. The book takes up a number of jurisprudential issues, including constitutional and statutory interpretation, and he believes constitutional interpretation should be guided by the liberty of the ancients (see here for a book review by Richard Posner). Rather than support the institutional designs that curtail democracy but increase what we would call liberty, such as, for example, separation of powers and federalism, Breyer looks to find ways to strengthen democracy. Breyer's conception of democracy is basically direct democracy; in a perfect world direct democracy would flourish and protect minorities, but in our world the Court must act to implement the ideals that would have been legislated in that perfect world.

In Part III I'll deal with Richard Epstein's libertarian theory and Laurence Tribe's non theory.

Kosovo And Palestine

Yesterday Kosovo declared its independence from Serbia. The United States joined a number of countries, including France and England, in recognizing Kosovo as an independent state. Other countries opposed the move including Spain, Russia and China, all nations dealing with a minority that wishes to secede from its mother country. Israel has decided to deny recognition as of now, but will likely endorse Kosovo's sovereignty in the future (Haaretz argues for Israeli recognition here).

I don't know very much about the specific circumstances that led to the Kosovan declaration. But I do wonder whether if Gaza or Palestine (Gaza/West Bank) decided to declare independence, if that move would be consistent with international law. Not that such a move would be a novelty, as Arafat declared independence in 1988 from his cushy residence in Tunis, Tunisia. That declaration was not universally accepted (at least by the states that had not already recognizing Palestine), and was most likely inconsistent with international law. But would such a move today violate international law?

Article 1 of the Montevideo Convention on the Rights and Duties of States lists four characteristics necessary for statehood:

a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states.

Let's look at these necessary conditions in regard to a Hamas declaration of statehood in Gaza or a joint declaration of the West Bank and Gaza.

1) A permanent population: In both cases, this condition has probably been fulfilled. Notwithstanding the question of whether Palestinians were a people in 1922, 1947, or 1967, they probably qualify today. Many Palestinians in the territories have been living there their entire lives. They consider themselves Palestinian. Much, if not the majority, of the world considers them a separate people. The Palestinians probably fulfill this condition.

The Palestinians in Gaza can make a similar, but weaker, claim. Gazans and West Bankers have a somewhat disparate history, given the different occupiers from 1948-1967. The Egyptians treated the Gazan quite differently than the West Bankers were treated by Jordan. I'm not sure Gazans can make a serious argument that they are truly distinct from the Palestinians in the West Bank, so I'm not sure they can claim to have a permanent population independent of the West Bank.

2) A defined territory: The Gazans can argue they fulfill this requirement fairly easily. There aren't any serious claims to any part of Gaza coming from any other countries, Israel and Egypt included.

The Palestinians as a whole cannot make the same claim. Israel claims, at least in theory, a large segment of the West Bank. Moreover, there are competing claims over Jerusalem, which would likely be considered a part of Palestine if a state were declared.

However, clearly defined borders are not a necessary condition for statehood. Israel did not have such borders in 1948 when it declared independence or in 1949 when the UN admitted Israel (in truth it doesn't even have them today). It is sufficient to have a claim over a certain general area, even if the exact parameters have yet to be decided. So the Palestinians can probably claim they can fulfill this condition.

3) Government: This is probably where both claims fail. Neither Hamas in Gaza or Fatah in the West Bank exercise any serious government functions right now. The primary function of a government is to supply law and order. Abbas cannot even control his own subordinates, never mind actually ensure that his reign is supreme. Hamas has a little more control, but how long will that really last? If Fatah regains a stronghold in Gaza, can Hamas ensure its superiority? Or is the Hamas victory there merely temporary?

Additionally, neither group can prevent Israel from invading at will. Israel currently controls the borders of Gaza and has the ability to launch operations at any time. In the West Bank the situation is even worse. Israel has numerous bases and settlements throughout the West Bank. Fatah can do nothing to stop that, short of actually making peace, which we all know isn't happening any time soon. So neither Gaza nor Palestine fulfill this qualification.

4) Capacity to enter into relations with the other states: The PA in the West Bank has a much better infrastructure for dealing with international affairs. They have observer status in the UN General Assembly. They have consulates in a wide-range of countries. And they have a real working foreign ministry.

The Gazans don't have a similar structure in place. And given Hamas' reputation worldwide, I'm not sure they could build it in the future.

In summary both Gaza and Palestine probably fail the government condition, which deprives them of statehood under this treaty and they do not consistute a state under the Montevideo Treaty.

Besides the Montevideo Treaty, there is also a theory that recognition is a necessary and sufficient condition for statehood. International law distinguishes between the recognition of statehood and the recognition of a government. A state can recognize the former without recognizing the latter. Most countries that recognize the state of Palestine recognize the Palestinian National Authority, though not all. Moreover, well over 100 countries have accorded recognition to Palestine over the last 60 years.

In my mind the constitutive theory of statehood is flawed because it allows the creation of states that do not fulfill the most basic conditions of statehood. A state cannot exist if it doesn't have a government or territory. Palestine and Gaza probably have the latter, but not the former.

So if either Hamas or Palestine declared independence tomorrow, I don't think they would be a state under international law.

Non-Originalist Theories Of Constitutional Interpretation Part I

Originalists are often accused of pretending that the world of constitutional interpretation consists solely of two camps: Originalists and non-Originalists. Although this charge is often overstated, Originalists often do tend to view their opponents as part of a unified camp of theories that oppose interpreting the Constitution according to its plain meaning at the time its ratification/creation.

On the heels of a paper about how there is no substantial agreement among Originalists about the Originalist enterprise, Larry Solum responds by arguing that Originalists do have a common theme:

The core commitment of originalism is the thesis that the semantic content of the Constitution was fixed by the relevant facts at the time each provision (the Constitution of 1789 and the amendments) was ratified.

Originalism differs from non-Originalist theories by making specific facts at the time of founding dispositive or at the least very important. Originalism considers either the intent of the Founders or the public meaning of the text at that time as strong evidence of the text's meaning. So in a sense non-Originalist theories do tend to have a unifying factor: they all refuse to grant certain facts or ideas from 1786 serious weight. What the terms meant then might be relevant, but it does not outweigh other more important facts, such as consequences, morality, or the meaning of the text today.

What are those different theories? This post would have been easier to write a few years ago before almost everyone in the liberal camp decided to jump onto the Originalist bandwagon. But I'll do my best to break down the different non-Originalist groups, while leaving the Originalist camp for a different post. I will also try to get the theories as accurate as possible, but I'm sure I'll get some facts wrong. Please correct me in the comments.

1) Pragmatism: Pragmatism involves looking at the consequences of a decision as much as the legal texts that are relevant to that decision. Most forcefully articulated by Richard Posner, Pragmatism accepts the validity of texts only insofar they generate favorable consequences. Posner's Law and Economics method of deciding non-constitutional cases in an outgrowth of Pragmatism.

Posner is especially supportive of eliminating formal restrictions that serve no practical purpose. For example, the Supreme Court has generally refused to apply many of the constitutional protections to activities by the government that are committed outside of the borders of the US. So, for example, the Court has not yet granted the inmates of Guantánamo Bay formal constitutional protections. But the exact same activities in the US would generate those protections. Posner believes the distinction is useless, since the government will just create detention camps outside of U.S. territory where there will be even less oversight. So he suggests a uniform rule, one which gives suspects in Guantánamo more rights than they have now but less rights than they would have in a similar camp in the US.

This argument clearly distinguishes Posner's method of interpretation from Formalism. Formalism is about following the rules despite the consequences. If the precedents demand delineating based on where the government incarcerated the terrorist, then we must continue to make that distinction. Posner only follows precedent itself for instrumental reasons and if the consequences of the precedent are negative, he'll forgo the precedent entirely.

2) Judicial Minimalism: This theory involves deciding cases as narrowly as possible rather than making decisions based on broad principles. A good example of Minimalism is Cass Sunstein's hypothetical decision in Brown v. Board of Education. Rather than promulgating the broad idea that separate can never mean equal, Sunstein would have continued the tradition of desegregating on the grounds that separate was unequal in that particular situation. Segregation in public schools was not unconstitutional because the Constitution forbids separate but equal in the public school setting, but rather because in the situations before the Court in 1955 in the two-tier public school system in the South was woefully unequal.

Sunstein's book One Case At A Time argues for deciding cases based exclusively on the facts in front of the judge. Sunstein applauds the Court's decision in Romer v. Evans, a case which ruled a Colorado law that prohibited giving government protections against discrimination on the basis of sexual orientation was unconstitutional, because instead of ruling that all discrimination on the basis of sexual orientation was unconstitutional, they limited their ruling to one specific instance of such discrimination. As more and more cases end up on the Court's docket, the Court will slowly, but surely, ban invidious sexual orientation discrimination.

This ideology squares with the Conservatism of Edmund Burke, the British philosopher. Burke argued that society was structured in a nonhaphazard way and making radical changes could have unforeseen negative repercussions. Sunstein opposes making radical changes partly because such changes could lead to opposition by a large disgruntled segment of the population.

Another supporter of Minimalism was Alexander Bickel. Bickel believed that cases that can be decided on procedural grounds should not be determined based on substantive arguments.

In Part II I'll go through Judicial Conservatism, Libertarian theories, and possibly Ronald Dworkin's theory that law must fit with our legal scheme and be justified morally.

Is Atheism Just a Religion In Disguise?

David Sloan Wilson, an atheist evolutionary biologist, argues in a four part series (I, II, III, IV with more to come) about the "New Atheists" that the ideology of Dawkins, Dennett and Hitchens is really just a stealth religion. In doing so, Wilson distinguishes between factual and practical realism. Factual realism is about what really is; it is epistemic reason with the goal of finding the truth. Practical realism is instrumental; it leads to beliefs that are not necessarily factually true, but will serve a utilitarian purpose.

For example, imagine someone is diagnosed with a likely fatal form of cancer. That person will probably die within 6 months. However, clinical studies have shown that people who believe they have a shot of survival tend to survive more often than those who resign to their fate. Factual and practical realism would conflict insofar that the patient believing falsehood is beneficial to her future odds of surviving the illness.

Wilson is an evolutionalist, so he provides a biological basis for the distinction. If our minds are a result of natural selection, they are likely programmed to lean toward practical realism because an accurate representation of the world is less likely to help an organism survive than a belief that serves a specific purpose. Wilson gives us an example:

Consider Hans and Igor, who are mortal enemies. Hans understands that Igor is much like himself, even to the point of competing for the same square of ground. Igor regards Hans as an inhuman monster, completely unlike himself. If Igor's belief makes him fight with greater determination, then it counts as practically realistic, even if it is factually incorrect.

Igor is more likely to fight for that piece of land because he feels that Hans is a monster. But Hans knows the truth, which is that Igor and Hans aren't very different. But that epistemically accurate belief will do him no good in a fight like this. Igor's practical realism will win out in the end.

As a certain popular JBlogger used to say, religion is a necessary part of the human psyche. Wilson would probably disagree with that point, but he would probably agree that believing in some false concepts is hardwired into our brain. But that is only the description of how the human mind works. It doesn't mean that we should resign ourselves to the fact that it ought to work that way. Should humans work to actively eradicate any traces of practical realism when it conflicts with factual realism?

In a statement reminiscent of another blogger, Wilson talks about how truth is only one value:

Since most atheists are self-described truth lovers, it is easy to conclude that we have a moral obligation to favor factual over practical realism, whenever the two conflict. However, most of us presumably also want to live in happy, healthy, thriving communities. If there is an unavoidable trade-off between factual and practical realism, that would place all of us in a moral dilemma. Atheists such as myself are banking on the possibility that we can have our cake and eat it too; that factual realism can contribute to, rather than detracting from practical realism. We need to be clear about our own articles of faith.

Wilson basically argues that there is no clear moral duty to only have true beliefs. If a false belief will have a positive benefit, it is not so obvious that we must purge it from our set of beliefs. Wilson is not making a clear normative statement about whether we must have epistemically true beliefs.

This takes us back to an old debate between William James and William J. Clifford whether we have a duty to hold only true beliefs. Some scholars believe that the argument was taking place on the normative, rather than just the epistemic, level. We have a moral duty to only believe true things. But that argument is problematic because sometimes practical realism will assist us in fulfilling our other moral duties. I might be more willing to help a person in need if I believe that person is generally good, rather than a criminal.

I hope to write more about this over the next week or so.

Alexander Bickel, Aristotle, and Yisro

Anyone paying attention to politics and the courts over the last 20 years or so has heard of some variant of the term The Counter-Majoritarian Difficulty. Coined by Alexander Bickel the phrase reflects the anti-democratic nature of the judiciary. Put very basically, if our structure of government is based on the will of the majority (and it is for the most part) then having unelected judges overrule the legislation passed by the majority's representatives runs contrary to democracy.

The simple resolution is that the judges are not overruling the majority's decision on the basis of their own whims, but rather striking down laws that are opposed to the Constitution. Since the Constitution was passed by a supermajority and is the supreme law of the land, it takes precedence over any regular legislation. Therefore if a judge feels that some legislation goes against the Constitution, he is within his rights to declare that legislation unconstitutional. There is no more difficulty because we don't have unelected judges striking down statutes; rather it is the Constitution itself, which was also the will of the people, negating those statutes.

The problem with this answer is that the Constitution is hardly clear. Many, if not most, of its clauses are ambiguous and vague and require some element of human interpretation. If that is true, then we are back to square one. Say, for example, a judge decides that the Equal Protection Clause of the 14th Amendment requires a flat income tax, because a progressive tax treats people unfairly based on their income. Surely such a view is not self-evident in the text itself. But is the judge wrong? It is a plausible reading of that clause. But if we allow any plausible reading of a constitutional provision to overrule the will of the majority, then the Constitution becomes nothing more than a hook for unelected judges to impose their own personal policy preferences. They are overruling democratic legislation, not the Constitution. The Counter-Majoritarian Difficulty rears its ugly head again.

One solution to this problem is for judges to have a methodology. Embedded in our system of courts is the concept of precedent. Precedent takes two forms: vertical and horizontal. Vertical precedent requires that a lower court accept the decisions of a higher court as binding. So the Court of Appeals in bound by the decisions of the Supreme Court no matter how wrong-headed the decision might be. Horizontal precedent is how the court's own precedents affect its future decisions. The Supreme Court is bound by its own precedent in the sense that it considers its earlier decisions weighty, but it can overrule those precedents if it wanted to do so. While the exact nature of horizontal precedent is hotly debated, it basically serves as a presumption of correctness if a similar case arises in the future.

Almost everyone accepts that precedent is binding on the courts in some sense. Precedent limits judicial discretion by requiring judges to deal with earlier decisions on the subject. So using my above example, since the Supreme Court has ruled that wealth classifications are reviewed under rational basis scrutiny (meaning the classification is constitutional as long as the court can provide a rational basis for the distinction, which it almost always can do), any judge who wants to render certain aspects of our tax code unconstitutional will have a very difficult time jumping the hurdle of precedent.

While precedent does serve a constraining function, some believe other methodologies work better. One of the justifications for Originalism (a methodology of constitutional interpretation that requires interpreting texts according to their original meaning) is that it points judges to an objective guidepost and therefore minimizes discretion. If the term "Equal" did not include wealth classifications in 1866, then the Constitution's original meaning did not prohibit a progressive tax code. Judges must square their decisions with objective historical analysis and that limits discretion greatly.

Whether this idea is true or not can be debated a different day. The fact is, however, that a methodology does serve as a means of constraining judicial discretion. A methodology requires the judge to take into consideration a number of extra factors, and those factors limit the possible outcomes. So Originalism and precedent do limit the number of judicial outcomes.

The common denominator between precedent and Originalism is that they both process-based constraints. We limit judicial discretion by forcing judges to take into consideration other factors besides the actual text itself. Methodologies (which includes precedent) imposes restrictions on how judges decide cases. It focuses on process. But there is another means of preventing judicial overreach: we could appoint the type of judges who wouldn't overreach. We could focus on the judge's character rather than how he would decide cases.

Traditional morality the last few centuries can be broken down into two distinct strands. Consequentialism, made famous by Jeremy Bentham, requires a moral agent to act in a way that has positive consequences. The most famous form of consequentialism, Utilitarianism, requires doing actions that increase overall utility. The opposing theory is Kantian Deontological Ethics, which focuses on duties and obligations. We must do acts that are required by a duty and refrain from acts that contravene an obligation.

The theme between these two moral theories is that they focus on actions rather than on the person. We must commit acts that have favorable consequences or are in concert with a duty. An alternative theory, Aristotelian Virtue Ethics requires that a person must act according to how a virtuous person would act. A virtuous person is one who possess a number of virtues.

How does this apply to the constitutional questions? Over the last few years Lawrence Solum has pushed the idea that constitutional theory should take into consideration Virtue Ethics. In his article The Aretaic Turn in Constitutional Theory Solum argued that when appointing judges, rather than looking at their methodologies, we should look for certain judicial virtues and avoid judicial vices. His list of virtues include judicial temperance, judicial courage, judicial temperament, judicial intelligence, and judicial wisdom. Judges who obtained these virtues should be confirmed. Judges who do not or have the countervailing vices should not be confirmed irrespective of methodology or ideology.

Interestingly we have a precedent for such a view. Even since I've become exposed to legal theory I've always been bothered by the lack of methodology in Halacha. There are rules of evidence like presumptions and precedent has a very important role, but there aren't any methodologies similar to Originalism of which I am aware. How do we avoid the problem of judicial overreach, which would be Poskim imposing their personal policy views on the population?

Yisro gave us the answer. In Shemos Perek 18 he tells Moshe that he must appoint judges. What type of judges should he appoint? In 18:21 he lists four judicial virtues: "אַנְשֵׁי-חַיִל יִרְאֵי אֱלֹהִים, אַנְשֵׁי אֱמֶת--שֹׂנְאֵי בָצַע" which can roughly translated as "men of accomplishment, G-d fearing people, men of truth, people who despise money." Basically Moshe should look for people who fear G-d and cannot be bribed. Such judges are less likely to be influenced by the litigants and will offer an honest judgment.

I can't say that Yisro was worried about judicial overreach in the same sense as Bickel, his list of virtues can serve as a starting point in the right direction.

Oh, That's Too Bad

#2 in Hezbollah Imad Mughniyeh died today in an explosion in Syria. Israel is denying responsibility, which is probably the right move even if they did kill this guy.

Mughniyeh was responsible for the deaths of hundreds of people. He might have had links to Al Queda. The long arm of justice reaches all.

Demographics And Poverty

We've all read about how the welfare cutbacks in Israel has led to a lower birthrate in the Chareidi and Arab communities. Amnon Rubinstein argues in yesterday's JPost that greatest demographic threat to Israel is the high birthrates of its poorer communities.

Right now the majority (comprised of everyone but pretty much the Chareidim and Arabs) is 70% of the population, meaning that 70% is supporting 30%. While such a high percentage of poor people is detrimental to Israel's economy, the size of those communities is expected to grow to close to 40% by 2025. Can 60% support 40%?

In exchange for staying in the government, Shas is asking for a return to the olden days, when large families received greater benefits per child. Rubenstein asks Olmert to refuse Shas' demand, even if it costs Olmert the premiership.

Rubinstein correctly, in my view, recognizes that cutting back on welfare will create incentives to look for work outside of the Yeshiva, as well as to decrease family size. These are good things for a society, even one like Israel with another demographic problem. But having a number of children in poverty is not beneficial to society, especially when the majority is obligated to support them. Moreover, the policies that lead to a decrease in the Chareidi birthrate caused an even greater drop in the Arab population growth.

Using welfare benefits as a tool to influence policy worked very well in the US. In 1996 Congress passed a welfare reform bill, which drastically cut back on the amount of child poverty and even got people off the state welfare rolls. In Neoconservatism: The Autobiography of an Idea, Irving Kristol argued that welfare is a good idea in theory, but it creates all kinds of disincentives to work. Cut people off of welfare and they'll look for actual employment.

The socialist Israel could never accept such a conclusion, given their ideals of equality of result. But if anything is good about Netanyahu, it is his idea that economic growth is predicated on people working, rather than accepting money without providing any benefits to the economy. Bibi implemented these reforms and there have been measurable positive effects. If Israel reverts back to its socialist ethos and reenacts large welfare grants to large families, those economic benefits will be undermined. Let's hope Olmert gets that.

Must We Put Our Money Where Our Mouths Are?

The old saying "put your money where your mouth is" requires people who support a certain course of action to do something active about it. Our good friend DovBear implicitly referred to this maxim when he counseled Mitt Romney's sons to join the war their father supports.

The obvious question is why Romney's sons should join the war. Who says they (or any politician's kin for that matter) support the Iraq War? Shouldn't we at least make an effort to determine their stand on that issue before asking them to join the military?

But let's use a hypothetical person, Person X, a young man who does support the war and see if the charge makes sense. Person X has always supported the Iraq War and believes we should keep the troops there until the job is done. Must he join the military and asked to shipped out to Iraq right away?

I don't see why. But first we must try to figure out what DB is actually claiming. He can't be making a descriptive claim because we all support claims and do nothing about them. I believe cancer research is quite important, but I've never donated a single dollar to a cancer charity. I may have good reasons for doing so (I might feel other charities are more valuable) or bad reasons (I might be too cheap to give charity) but either way no one can argue with a straight face that people generally support causes they feel are valuable.

So DB must be making a normative claim: if someone supports a cause he ought to do something active to help it. But why would that be? If I happen to believe a certain policy is the best morally or pragmatically, why must I do something to help that cause?

I'm not really sure, but I'd guess the answer has something to do with the implications of how the policy gets carried out. If Person X believes the Iraq war is important, he supports keeping our troops in Iraq, which requires us having troops in our military in the first place. Person X's preferred policy requires that some people join the military and go to Iraq. In other words, Person X's political view expects other people to carry out his policies. If that's true, perhaps Person X has the obligation see his views fulfilled, rather than expect other people to do things for him.

In all honestly, I don't find this line of reasoning very compelling (maybe because I made it up myself). But let's assume there is a moral obligation for a person who supports a cause to do something active to help it.

Let's use person X again, but this time let's assume he supports having a police force (this way we can avoid debating the Iraq War question). Person X always talks about how having cops walking the streets helps make society better. Does he have a moral obligation to join the police force? I'd say no for a few reasons.

First, while Person X has an objective obligation to help his personal causes, he might also have a subjective obligation to other people. Maybe Person X is married with two children and has an obligation to support his family. Becoming a police officer is risky and doesn't pay well, so Person X has to look for employment elsewhere if he expects his family to have a reasonable standard of living.

Second, perhaps his value to other causes is greater than what he can provide to the police force. Maybe he is a brilliant medical student who can help discover a cure for cancer, but is a physical weakling who would make a terrible police officer. So even if the police force is the most important cause, he can add more to the world by becoming a cancer researcher.

Third, while he values a police force, perhaps Person X considers other causes more important. Maybe he favors cancer research and has decided to devote his life to finding a cure. While a police force is important, his obligations to cancer research outweigh his obligations to the police force.

Lastly, maybe the marginal utility of his assistance to the police force is less than the marginal utility of his aid to another cause. Let's assume he considers the police force the most important cause in the world. The second most important cause is cancer research. But in this hypothetical world, there is a waiting list a mile long to join the police force, but no one wants to become a cancer researcher. So even if he feels he personally could help the police force more than the cancer research department at his local hospital, he might do the latter simply because his benefit to society will be slight if he takes the former route rather than the latter.

In summary I don't understand the source of this obligation, but even if it really exists, there are many reasons why someone might not "put his money where his mouth is."

Why Women Should Settle

In an article more likely to appear here, rather than here, Lori Gottlieb makes the case for choosing Mr. Good Enough instead of waiting for Mr. Right.

Working against the presumption that women should wait for true love no matter how long, Gottlieb claims that most women tend to want to get married and are forced to settle as they get older. Someone they would have rejected out of hand in their 20s becomes eminently more appealing in their late-30s. As they age, women realize their prospects become more and more limited and they begin to worry about the possibility that they will never find anyone. You think older women don't worry? To the women who argue that they aren't worried Gottlieb responds:

And all I can say is, if you say you’re not worried, either you’re in denial or you’re lying. In fact, take a good look in the mirror and try to convince yourself that you’re not worried, because you’ll see how silly your face looks when you’re being disingenuous.

Gottlieb even believes that marriages that aren't based on true love and passion are more likely to last:

Based on my observations, in fact, settling will probably make you happier in the long run, since many of those who marry with great expectations become more disillusioned with each passing year. (It’s hard to maintain that level of zing when the conversation morphs into discussions about who’s changing the diapers or balancing the checkbook.)

Gottlieb's conception of marriage is pragmatic. Marriage isn't about romance and passion; it is, as she puts it, "a partnership formed to run a very small, mundane, and often boring nonprofit business." When running any business, it's better to have a partner, even if he isn't perfect, than not have any partner at all.

Look at the list of guys her friends settled for by the time they got older:

[A] recovering alcoholic who doesn’t always go to his meetings; a trying-to-make-it-in-his-40s actor; a widower who has three nightmarish kids and who’s still actively grieving for his dead wife; and a socially awkward engineer (so socially awkward that he declined to attend his wife’s book party).

When it comes down to it, maybe conventional wisdom (and by that I mean the shidduch dating guides we all laugh at) isn't as wrong as we suppose. They tell us to focus on the important things and not look for romance on the first date; Gottlieb counsels not looking for romance at all. The guides tell us that family is what is important and we need to look for a good parent in our dating partner rather than a supermodel; Gottlieb argues that once kids come into the picture, marriage will have a very different structure and what we originally looked for in a spouse (as opposed to a parent) won't matter anymore. Gottlieb's argument returns us to the earlier days of dating and marriage where marriage was about building a family, and they were perhaps the more realistic days.

One phrase in particular stuck out: Gottlieb talks about her married friends who constantly rail on against her husbands but will always admit they would never leave him. As she puts it,

They, like me, would rather feel alone in a marriage than actually be alone, because they, like me, realize that marriage ultimately isn’t about cosmic connection....

Seem familar?That comment sounds awfully like the Talmudic dictum "tav lemeitav tan du mi-lemeitav armalu," which basically means a woman would rather be in a bad marriage than be alone. Who would have ever thought The Atlantic Monthly would be the one to confirm an old Talmudic saying?

Wives And Allowances

An excellent post by Sephardi Lady links to a message board called Imamother, which is frequented by wives and mothers. The topic of the this particular thread was about whether the wife receives an allowance from her husband. One women happily admitted that her husband gives her $200 a week for household and personal expenses, and then she is grateful when she has extra money in case unexpected expenses come up, such as an exterminator.

I feel like I'm in a time warp when reading comments like that. Perhaps the wife is a compulsive spender, so limiting her access to money is a good thing. And maybe no couple in 2008 really operates this way. In that case, I'm just talking about a hypothetical world. But if some marriages really do function this way, I can't see how those marriages aren't inherently unfair.
Let's assume allowances are characteristic in marriages where the husband is the sole breadwinner. Let's say he has a business or obtained a degree while they were married. Well it's his money, so he can give her as much as he wants, right?

That's just not how our society or legal system understands the nature of marriage. In New York, if a husband acquires a professional degree during the marriage, the degree is considered marital property and half of the degree -- or more accurately the present and future earning power of that degree -- belongs to the wife. The rationale underlying this legal rule is that the wife participated in the acquisition of the degree by taking care of the household duties and/or supporting the husband while in school.

This conception of marriage is that of an equal partnership. Both parties provide inputs into the marriage, so if it has to be dissolved, both should split the outputs. In my mind, this conception is probably the most accurate.

But there is another understanding of marriage that would also make sense. The husband would have complete ownership over the business or degree but he is obligated to pay the wife for her services. This notion of marriage views it as an employer-employee relationship. While some of us might consider that view morally problematic, it makes sense economically. The husband might own the business and have a right to control all the finances, but he has an obligation to provide her with the market value of his services. Considering how much live in maids and nannies go for, I imagine 200 dollars a week doesn't cover it, especially when included in that $200 is the very money she needs to do her chores.

What doesn't make sense is the idea of marriage that expects the wife to do the chores, raise the children, and give up any semblance of a career, but not receive adequate remuneration. The husband can't control all the money and not pay her for her services. Either she has equal access and they are partners or she is an employee who gets paid. Any other way just seems unfair.

What Voter Ignorance Can Tell Us About The Israeli-Palestinian Conflict

Recently I linked to a paper by Ilya Somin, a member of the Volokh Conspiracy and a law professor at George Mason. The theme of his article is that voters are rationally ignorant and this phenomenon creates practical problems (we choose leaders for bad reasons) and normative difficulties (democratic theory presupposes a certain amount of voter knowledge if democracy is going to function).

The end of his paper deals with how the war on terror is affected by ignorance in Muslim countries. As examples he cites surveys that shows people in those countries are woefully ignorant about international affairs, including believing that the 9/11 attacks were not carried out by Al Qaeda. This study fits well within his theory. If Americans, who are educated and have almost unlimited, easy access to information choose to remain ignorant, people in Muslim countries who do not have a free press and limited access to information should be even more ignorant.

I think this point is true. If Americans are ignorant because their votes have little value, people living in dictatorships are going to have less incentives to learn about the issues. However, I think there is a countervailing consideration. Much of our ignorance hinges on the idea that the differences between the candidates are not really that vast. Electing McCain as opposed to Hillary will have real consequences, but not in the same way as overthrowing a dictator. So the average Arab might have more of an incentive to learn the issues for that reason.

Either way ignorance in the Arab world is a real problem. Applying this concept to the Israeli-Palestinian situation, we can definitely draw conclusions that have serious ramifications. If Palestinians are as ignorant as we are, since their voting options and access to information are much more constrained, perhaps we cannot influence them much politically through grandiose ideas like statehood or autonomy. I'm not saying the Palestinians are stupid and won't know the difference between living under Israeli or Palestinian control. But no matter what we do, we'll be running up against a situation where the very people we are trying to impact won't really know how we are helping them.

Perhaps the best way to influence the average Palestinian is to make changes on the ground. People might be ignorant about national and political issues, but everyone knows about the factors that affect him directly. Palestinians know all about roadblocks, closures and military incursions either because they themselves experienced them or because someone they know did. It is the actual experiences of the Palestinians that really matter.

This can work in two different ways: we could try to make their lives easier (how the Left approaches it) or we can try to show them that terrorism will only hurt them (the approach of the Right). The former view expects the Palestinians to give up their irredentist aspirations once they realize we are not trying to destroy them and take their land. That can only succeed once we take action to make their lives better. The latter approach believes the Palestinians will never agree to a peaceful arrangement unless we show them they have no choice. We must show them that violence will never lead to their desired aims.

I don't know who is right, but I think it's important to recognize that ignorance is a real obstacle we have to overcome and modify our thinking accordingly. Minor moves, like releasing a few hundred terrorists, is not going to have a real effect on the situation, unless it is coupled with farther reaching moves. Similarly, a small incursion into Gaza isn't going to stop Kassams or even convince the average Palestinian that shooting Kassams is a bad thing. We need to do something that will cut through the ignorance and affect the average Palestinian himself.

Why Trade For Shaq?

Despite having the best record in the Western Conference, the Suns decided to trade Shawn Marion and Marcus Banks to the Heat for Shaquille O'Neil. The truth is there isn't much to say about this trade that hasn't already been stated elsewhere (here and here), but I'm going to do it anyway.

This deals makes no sense from a number of standpoints:

1) Player Value - Marion is simply the better player at this point of Shaq's career. Every single basic and advanced metric bears that out. Per game Marion averages more points, rebounds, assists and steals. He averages slightly less blocks, but far less turnovers. He also shoots better from the line and 3-pointers. Shaq's only real advantage is FG%.

Advanced stats like Wins Produced and Wins Produced Per 48 minutes put Marion way ahead. Marion's WP of 9.6 is 7th in the League at the halfway point of the season, only slightly behind possible MVP Lebron James. His WP48 (0.314) is ahead of stars like Kobe, Carlos Boozer, Yao Ming, and his former teammate, Amare Stoudemire. Shaq, however, has a WP48 of 0.102 and a WP of 1.9, which puts him at 132 in the league behind luminaries such as Daniel Gibson and Keith Bogans.

Even John Hollinger's PER ranks Marion ahead of Shaq just based on per-game production. Marion is 30th in the league at 20.25, while Shaq is 49th with a PER of 18.16. And PER doesn't even take into account defense, where Marion clearly trumps Shaq.

2) Health - Marion has played in 79 games or more every single year since his 2nd season. How about Shaq? Shaq hasn't played in that many games in a season since Marion's rookie year. He played 73 game in his first year in Miami, but since then Shaq has only played in about 2/3rds of his team's games. So even if Shaq was more productive on a per game basis, he just doesn't play enough games to justify this trade.

3) Finances - Shaq has two more seasons at 20 million per year after this season. Marion has a player option for 17 million dollars that kicks in at the end of the year. So instead of one more year at 17 million at most, they now have two more years at 20 million. Even though the Suns rid themselves of Marcus Banks' 4 million plus per year contract (which runs for 3 more seasons), they still come out way behind.

4) Style of Play - The Suns are a run and gun team. Shaq can barely make it down the court. Marion was their big-time defender, a guy who could take anyone from Chris Paul to Carlos Boozer. Shaq averages 4 fouls in less than 30 minutes per game. Marion can score in a variety of ways. Shaq can still post up, but he does not demand the same double team he did in the past.

The only argument for getting Shaq is that he is a center and the West (and especially the Suns' biggest nemesis, the Spurs) are full of big men. While that is true, there is no way Shaq can defend Duncan anymore, and I don't think he could even do much to stop someone like Yao. So what's the point?

Maybe the Suns didn't want to lose Marion for nothing in case he decided to walk. If that's true, why not wait a little longer and see if they could swing a better deal? And even if they couldn't, Marion will want to be paid a lot at the end of the year, and that is most likely to happen in a sign-and-trade. So they didn't have much to worry about.

When it comes down to it, Shaq is still a decent player, probably one of the top 10 centers in the NBA. When healthy, he is in the top 5. But Shawn Marion is a top player in this league, younger, more durable, fits the team's style better, and is cheaper. Why give him up for an aging Shaq? I just don't get it.

Philosophy And Avoiding Infinite Regress

I've been reading more philosophy lately and one consistent theme I've noticed is that philosophy is always looking for first principles or, put different, ways of avoiding infinite regress. What I mean by first principles is everything we know, believe, or follow can be challenged by looking for its basis, and when that is finished, we can repeat the challenge again by asking the same questions about the basis' basis. So we have to find a starting point that is either unchallengeable or can adequately respond to that challenge. I'm sure there are literally hundreds of examples, but I'm going to give four.

1) The First Cause of the Universe

This one is very popular among JBlog readers and has been attacked, defended, and then attacked again over the last few years. There are a number of permutations (St. Thomas Aquinas had a number of versions himself), but put simply the argument goes like this: everything we know is contingent in the sense that it exists as a result of something other than itself. But if these objects are contingent, then how could they exist? They must be contingent on other contingent objects, which are contingent on other contingent objects, etc. Basically all contingent objects depend on other contingent objects and that chain is infinitely long.

Religious philosophers try to avoid giving this answer by positing the existence of a non-contingent entity which necessarily exists. That entity is not contingent on anything else and can exist on its own. It necessarily exists. This is the First Cause, which is G-d.

2) The Foundations of Empirical Knowledge

Epistemology is the field of philosophy that deals with what we know, as well as what we can know. It creates conditions, both necessary and sufficient, for what constitutes knowledge. Put basically, knowledge is justified belief that is true. But what makes a belief justified?

There are a number of answers to this question (and some do away with the whole idea of justification entirely), but any theory of justification is going to require that the belief build on another belief. So belief A is justified by belief B. But how is belief B justified? By belief C. So it appears we have another example of an infinite regress, because each belief will be justified by some earlier belief.

Most of the epistemologists who consider justification a necessary condition fall into two categories: Coherentists and Foundationalists. The former believe that all our beliefs can be sustained by appealing to other beliefs we have in the system. This argument is essentially circular but not in a bad way. Each belief appeals to another belief as a basis of its justification and all the beliefs in the system are justified by other beliefs in the system. Foundationalists, however, argue that there are basic beliefs, which are beliefs that are capable of justification, but do not need to be justified themselves by other beliefs. This argument posits the existence of beliefs that are justified solely by experience and do not appeal to any other beliefs. By accepting the idea of a basic belief, they avoid the infinite regress problem.

3) The Origin of Law's Authority

Jurisprudence or legal theory deal with the important question of what gives law authority. If the law’s claim to authority is dependant on the law itself, then the law’s claim is circular. A law cannot be binding merely because it says that it is. Clearly some external source must be the basis of the law’s authority. But what is the basis of that law’s authority? Unless there is a source of law outside of law itself, law is relegated to infinite regress.

To make the question more concrete, here is an illustration. Take any statute passed by the U.S. Congress. Congress is authorized to make legislative enactments under Article I of the Federal Constitution, so Congress seems to be the source of the statute’s authority. But what is basis of Congress' authority? The Constitution. But what is the Constitution’s claim to authority? While Article VI of the Constitution deems it the supreme law of the land, a law cannot grant authority to itself. So we are back to square one: what is the source of Congress’ law-making power?

For the past few centuries this question was answered by two different camps. The Naturalists believed that G-d created natural norms, which vest man with the ability to create laws. G-d designed law-creating norms, and those norms could be used to create further, man-made laws, providing the laws conform with the original norms. These norms are also the primary sources of morality and therefore there must be some connection between the laws and morality.

The Legal Positivists answer this question by assuming that law's authority can be justified independent of other laws. John Austin argued that the original basis of law is the command of a sovereign who answers to no other and has the power to enforce his decrees. H.L.A Hart disagreed with Austin and argued that every legal system has a Rule of Recognition that is accepted voluntarily by some segments of the population. That acceptance generates a secondary rule, which is the basis of the primary rules, such as laws. So laws derive their authority from the voluntary acceptance of a class of society. The Rule of Recognition avoids the infinite regress problem.

4) The Source of Moral Obligations

This is an issue I haven't seen mentioned in anything I've read, but I probably haven't read enough of the literature. In two earlier posts (I, II) I questioned the reason why we are bound by Divine command. We are not normatively bound by a rule simply because someone, even G-d, proposed that rule. So if we are bound by G-d's command, it must be because there is some other moral obligation. But what is the source of that moral obligation? Any answer will just lead to the question of that obligation's source. I don't know the answer to this infinite regress problem.

I think it's an important question because if we can't figure out the basis for our normative obligations, why are we bound by G-d's will at all? And if we're not, what justification do we have to punish others who do not wish to voluntarily submit to G-d's will? For example, how can a Beis Din punish an Apikoris or order the destruction of Buddhist temple? Perhaps we can make a pragmatic argument, that allowing sinners to remain unpunished in our society negatively affects believers, so Beis Din's actions are not punishment as much as protecting our society. This argument lacks a normative foundation, so while it could serve as a justification, it is weak.

Super Tuesday And The Paradox Of Voting

I haven't written about politics in a long while, and that's partially because my interest in the subject matter has waned over the past year or so. In 2004, I knew every candidate, what they stood for, and I had a clear idea who I supported. It was easier because I felt Bush was better than anyone the Democrats were offering, but overall I just cared more. I care less now, although I'm not sure why. I guess part of the reason is that I'm more interested in other subjects, and a guy can only pay attention to a limited number of interests at any given time.

So I'm somewhat ignorant about the primaries. Obviously I know a decent amount about the candidates (mostly who they are and where they're from), but I haven't done any serious research about anyone's record. But in that regard I'm not different than the average American.

The paradox of voting (explained well here) is that each vote is statistically meaningless, yet people vote anyway. But since votes count for so little, voters don't have any motivation to study the issues and make an informed choice. The aggregate of the votes end up being the decisions of ignorant voters, which can lead to disastrous choices. Even worse, in my opinion, is that political honchos know that voters will choose less based on substance and more on other not as important factors like appearance and charisma so they will push less qualified candidates who can appeal to the common voter, rather than serious leaders.

The biggest problem is that voter ignorance is entirely rational. If someone's vote matters so little, why should have take the time to become learned? Unless he has some other reason to follow politics (interest or he works in the political world), why follow the issues? The opportunity cost will always be higher than the gain in political knowledge. So remaining ignorant is the most rational choice, just as most of us choose to remain ignorant of subjects we find uninteresting.

So the rational choice on a micro-scale is ignorance, but that creates problems on the macro-scale. The result is a big flaw in democracy.

I've heard the argument that we should promote voting only for people who are educated. I once believed that we should require tests before people could vote (no, not literacy tests). The problem with this idea is that instead of increasing voter knowledge, it will most likely depress the ranks of the voters. Since votes matter so little, many people will simply just stop voting because the opportunity cost of learning the material is too high (I am ignoring other serious problems with that idea). So we'll end up having mostly people who have an interest in politics making the decisions. But why is that better than having the ignorant masses pick out leaders? The educated elite are not representative of society and would impose a narrow world-view on society. That doesn't help solve our problem, and might create other ones.

I don't know if there is a solution. Promoting more voting doesn't help choose good leaders. Pushing less voting doesn't work either. Increasing voter knowledge is close to impossible.

On a personal level, I just don't vote. My vote is practically meaningless, especially in New York and in a presidential election. But if I did vote, I'd choose McCain, simply because he has a better shot of beating whomever the Democrats nominate. If anyone is out there, you should vote, so go vote for McCain.

Foreign Same-Sex Marriage Recognized in NY

A NY Appellate court last week required that all public and private entities in the state are obligated to recognize a Canadian same-sex marriage (text of the decision here). As a general rule, NY courts recognize out of state marriages that would be illegal in NY unless NY law expressly prohibits such recognition or the marriage is against NY's public policy.

The Court ruled that no such law is on the books in NY because even though NY's Constitution does not require same-sex marriage, there is no legislation that denies recognition to out of state same-sex marriages. Moreover the public policy exception only applies to marriages that are "offensive to the public sense of morality to a degree regarded generally with abhorrence.”

I was wondering why the Defense of Marriage Act is inapplicable here, but apparently DOMA only applies to domestic marriages and does not include marriages from foreign countries that would usually be recognized on the basis of comity.

It's been a while since I studied these issues, but is there any serious legal argument that opposes recognition of these marriages? And if not, couldn't any gay couple go to Canada, get married, and then force NY to recognize their marriages? DOMA was designed to prevent people from going to states that allow same-sex marriage and then requiring their home state to affirm their marriage, but this seems to be a loophole.

More importantly, if the Court of Appeals affirms this judgment, could this become a major campaign issue? Opposition to same-sex marriage in 2004 was a major reason why Bush was re-elected, since social conservatives came out to vote on state constitutional amendments banning same-sex marriage. If DOMA doesn't protect those states from foreign marriages, are more legislation or amendments necessary to prevent same-sex marriages in those states? Could this propel the GOP into office in 08?

Anyone Read Olomeinu As A Kid?

It's been a really long time since I read Olomeinu, but I don't remember it being this bad. Perhaps I was too young to get the political agenda (via On The Main Line):



I think the comments on that post really sums up the utter awfulness of this comic.

Why I'm Glad The Giants Won

At the risk of excommunication, I'll admit I was rooting for the Patriots last night. Even worse I'm a Jets fan, and the Jets and Pats are supposed to have some kind of rivalry, so how could I support the enemy?

Well, I'm not a Giants fan, so I didn't have any compelling reason to go for the Giants. I wouldn't root against them particularly (because I'm not a Mets fan), but I don't feel any reason to root for them.

For some reason whenever I watch a game I always have to be going for a team. The games are just not as interesting if I don't feel a personal interest in the outcome. Since I'm not a betting man, that means I have to choose a team. Sometimes I'll go for a conference or league in championship games (I rooted for the Tigers over the Cards in 06 because they were the AL representative). Other times I'll root against a team (I always hope the Red Sox lose). But that's not a very systematic way of picking a team to support. Since my football and basketball teams (the Jets and Knicks) have been mediocre at best for the last ten years, I had to choose a surrogate team. In the 90s I picked the 49ers (this wasn't frontrunning per se because the Cowboys were the better team during that decade). Since the Knicks imploded, I started going for the Spurs. Now that 49ers are bad, I've been going for the Pats.

I've always had a soft-side for team-centric, fundamentally sound teams. The Pats were the epitome of a fundamentally sound, egoless team. At least in the beginning they had no stars , no me-first guys, no showboaters. While a lot of that changed this year, I'm already stuck with them. So I went for them to win. With the exception of the Jets games, I hoped they would achieve perfection. No team had ever gone 19-0. I wanted to see perfection, to see history. Big super bowl upsets have happened before, but no team was perfect over 19 games. Sports is all about historic moments, and I wanted to see something I could colloquially "tell my grandchildren."

Equally as important I wanted to see these guys squirm. Over 30 years later they still celebrate every time the last undefeated team loses. They got to do it again last night. I can't stand people who say things like this:

"We were the first ones to climb Mount Everest," Yepremian said late Saturday. "If New England comes and does it, then they can be the second ones. But you usually don't remember No. 2. I remember Sir Edmund Hillary was the first one to climb Mount Everest. I don't remember who did it the second time. Do you?"

These guys practically define arrogance.

But, you know, despite all of that and even though the Pats lost, it was still worth it just to read this:

Finally, can you guess the last thing we heard as we were walking (OK, hustling) out of the stadium right after the final play? That's right, it was the sound of euphoric Giants fans chanting, "Eighteen and one! Eighteen and one! Eighteen and one!" Yes, it's safe to say the Boston-New York rivalry has been taken to new heights. As a tennis umpire would say, "Advantage, New York."

Eighteen and one! Eighteen and one! Eighteen and one!

I can still hear them. I will always hear them.

Let's follow it up with the Yankees taking back what rightfully belongs to them: a World Series win.

Congrats To The Giants

I'm no Giant fan, but they played the best possible game they could have played and beat one of the greatest teams of all-time. That was probably the best Super Bowls I've ever seen. I tip my hat to them.

Few quick points:

1) Where does this leave the Pats? On one hand they didn't go undefeated. On the other hand, they went 18-0, which is better than 17-0. So how do we rank them all-time?

2) The Giants' lines dominated both sides of the ball. Brady had no time to throw, but Eli had all day. Despite the Giants playing that well, the fact the Pats almost won shows how amazingly talented that team really is.

3) Who would have thought Eli Manning would be the one to lead the Giants 83 yards in less than 4 minutes to win the Super Bowl? If you gave the casual fan a list of 30 QBs before the season and asked him to put odds on which ones would win the Super Bowl MVP, how many would have had higher odds than Eli? 15? 20?

4) After Namath's feat, is that the greatest upset in Super Bowl history? In terms of the spread it was the third greatest upset, after the Pats defeat of the Rams in 01-02, which it turns out might not have been so kosher after all.

5) The people pouring out of the bars outside my apartment sound pretty excited. I hope my car makes it through the night.

Don't These Guys Do This Stuff For A Living?

A friend sent me the link to this article by Stanley Fish where Fish argues that theories of constitutional interpretation do not actually explain how judges reach their conclusions. He was sort of reviewing a book and the authors responded here. I hope to write something about this argument next week, but right now I want to respond to a passage that jumped out at me:

... [T]he ... process Fish describes is no different in principle from the view of “original intention” professed by jurists like Antonin Scalia, Robert Bork, and William Rehnquist. Both try to escape the burdens and responsibilities of seeking the true or best interpretation by fleeing to some kind of authority: for the former, the authority is the extra-constitutional doctrines of some favorite philosopher, and for the latter, the authority is the extra-constitutional intentions of the framers. Both approaches thus disregard the intentions evident on the surface of the Constitution as written – the “positive law,” if you prefer. A central aim of our book is to display the many fallacies of the Scalia-Bork-Rehnquist view of “original intention.”

Here's a bio for the authors of this passage:

Sotirios A. Barber is a Professor of Political Science at the University of Notre Dame and James E. Fleming is The Honorable Frank R. Kenison Distinguished Scholar in Law at Boston University School of Law.

It boggles the mind that in 2008 there are still people writing books about Scalia's theory of original intent. To be honest I don't know enough about Rehnquist's view and Bork was, at one point, an intentionalist, so maybe they haven't gotten to memo (or read any of his books) where he argues for following original meaning, not intent. But Scalia? An intentionalist? Seriously? The "central aim" of their book was to rebut Scalia's intentionalism? Have they read anything he's written?

Scalia devotes a major chunk of his piece in A Matter of Interpretation to rejecting the idea that the intentions of the authors matter. Scalia is often criticized because his brand of textualism presupposes a plain meaning exists and that we should ignore the intentions of the legislators. Scalia believes the meaning of a legal text is how an average person would understand it when it was enacted. Scalia's originalism is just an expansion of his textualism: the plain meaning of the constitutional text is what a regular person would have understood it to mean at that time.

Attacking Scalia's intentionalism is like attacking Ronald Dworkin's Positivism or Steven Breyer's textualism. You'd actually be attacking the position they spent a large amount of time rejecting themselves.

How could two professors write a book about a topic and get it so completely backwards? It's one thing to attribute false views to someone or misunderstand his arguments. But to claim that someone holds a position that he actually strongly opposes is just bad scholarship. That's one book I'm not going to be reading.

Keith Law's Top 100 Prospects

Both Baseball America (no free link so this is all I have) and Keith Law (it's free for now) came out with their list of the 100 top prospects in baseball in the last few days.

Baseball America has 3 Yankees in the top 40 (Joba at 3, Jose Tabata at 22 and Austin Jackson at 40), while Law puts them in the top 24 (Joba 3, Tabata 21, Jackson 24). It's amazing to see that an organization with so much pitching depth actually has two hitting prospects in the top 40 in baseball.

Two other pitchers -- Ian Kennedy at 45 and Andrew Brackman at 100 -- made the Law's top 100. That's 2 pitching prospects in the top 50 including Joba (the #1 in baseball) and doesn't include Philip Hughes who no longer qualifies as a prospect. Prospects are no sure thing, but we can't help but be optimistic about the Yankees future, especially since the list did not include Humberto Sanchez (who was ranked in BA's top 100 last year, but had Tommy John surgery) and Alan Horne, who was a first round pick out of high school before choosing college.

Law also ranks the prospects the Mets traded for Santana. Deolis Guerra was ranked 80 and Gomez 35. Humber and Mulvey didn't make the list. I think Law's list really put the Santana trade into perspective. The Mets got a steal. But they better win now, because after this trade only Fernando Martinez is in the top 100 (10). Their organizational depth is practically nil at this point.