Constitutionality

Point #1 in my list of arguments made by Glenn Greenwald in his posts laying out his thoughts about the court’s decision to invalidate the McCain-Feingold restrictions on campaign spending is Greenwald’s view of constitutionality. He states:

In general, a law that violates the Constitution can’t be upheld because the law produces good outcomes (or because its invalidation would produce bad outcomes).

and

It’s critical always to note that these are two entirely distinct questions:  (1) is Law X/Government Action Y a good thing?, and (2) is Law X/Government Action Y Constitutional?  If you find yourself virtually always providing the same answer to both questions — or, conversely, almost never providing opposite answers — that’s a very compelling sign that your opinions about court rulings are outcome-based (i.e., driven by your policy preferences) rather than based in law or the Constitution.

This view is wrong. It is a pillar of legal dogma and part of the mystique of the judicial branch, and yet it is quite transparently false on two counts:

1. The constitution is supposed to generate good results. Certainly considerations such as “compelling state interests” show that interests are what is at the bottom of constitutional decisions, but these are just an explication of the entire rationale of the constitutionality. The constitution, or indeed any rule in a democratic society, is supposed to serve the public good. Otherwise, it has no reasonable function and should simply be ignored. Greenwald’s own adherence to what he perceives as the principle of free speech is due to his perception that this principle serves society well.
2. The constitution, like any legal document, or any document that says anything about the real world (as opposed to, say, a mathematical theorem) is open for interpretation. The interpretation is guided by the interpreter’s world view, which includes, of course, what the interpreter considers good or bad. Therefore, even if we did not believe that constitutional decision should be based on interests or values, we would have to find a different method to make those decisions, a method which would not be inherent in the constitution itself.

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Glenn Greenwald on free speech

Glenn Greenwald is not a mainstream intellectual. His columns show that he is an informed, independent thinker. In the wake of the U.S. supreme court decision invalidating some restrictions on political speech in the mass media, Greenwald wrote a couple of interesting columns (1, 2) in which, contrary to what is probably the standard response in the circles that are ideologically close to him, he defends the decision, and goes further to defend anathemas to those ideological circles – the ideas that “money is speech” and that corprations should have free speech rights.

For reasons that are largely in agreement with Greenwald’s, I don’t see the particular case as being very important. (Striking down the restrictions can hardly make a significant difference in the sum total of the power of corporations to influence public opinion, since they already control public discourse almost exclusively. It can only shift power among corporations.) However, the arguments Greenwald marshals are of much more fundamental importance – they bear on basic political notions  – “free speech”, power within society, legality, constitutionality and democracy. I therefore wish to examine his points one by one. In this first post I will enumerate all the important points he makes, with the intention of analyzing each one in later posts.

Paul Krugman, mainstream intellectual

Paul Krugman, Princeton economics professor, winner of the Nobel prize in economics for 2008 and New York Times op-ed writer is a person worth paying some attention to. Unlike most other mainstream commentators he does not deal mainly in cliches and often shows respect towards his readers by supporting his positions with hard data. He is also willing to take some risk by, on occasion, pushing against the envelope of mainstream propriety and using impolite words toward people with power.

Of course, he is not without faults. Of course, none of us is. The point is that Krugman’s faults are not too different than those of many of his colleagues. In other words, while Krugman is somewhat of an exquisite specimen of the mainstream intellectual, he is still very much such a specimen.

U.S. Senator tenure

The chart below shows the maximum (solid line), average (circles) and median (horizontal bars) of the distribution of tenures of U.S. senators serving at each year since the establishment of the body.

Over the last 200 years all three indicators of tenure length have been increasing steadily, approximately doubling every 100 years. There are now 52 senators with tenure of ten years or more, and two senators, Robert Byrd and Daniel Inouye, with tenure of about 50 years.

The chart was created using a table that I prepared based on the chronological list of senators available on the senate website. There may be some slight inaccuracies in the table, but I believe that on the whole the data is valid.

Newcomb’s paradox

This post presents my analysis of Newcomb’s paradox. I have written it back in 2001, after having found the paradox discussed in Martin Gardner’s book “Knotted doughnuts”. Reading the discussion in the Wikipedia entry, I find my resolution more satisfying than those offered there. While I clearly take the “no free will” avenue which is mentioned in the entry, I think that drawing the analogy to a program-programmer situation reveals the essence of the situation, and avoids unnecessary muddles such as references to “reverse causation”. It is also worth noting that determinism is also not a necessary factor in the setup. Even if the computer could use a random number generator that is not predictable by the programmer, the situation would not change materially.

Newcomb’s paradox:

A psychologist comes to you claiming to have invented a machine able to scan your brain and predict with certainty your future actions. She proves her machine’s ability by predicting numbers you choose and all other kinds of actions, until you are convinced that the machine really works. In many trials you have never seen it fail.

She then puts a $10 bill on the table, and gives you a sealed envelope. The envelope and its contents are yours. You are also allowed to take the bill if you want to. She says that she used the machine to predict whether you will take the bill. The envelope is empty if the machine said you will take the bill, and it contains a hundred dollars if the machine said you will not keep the bill.

The problem is: should you or shouldn’t you take the bill?

Argument against taking the bill: If you take the bill, the machine would have said you will, and therefore the envelope would be empty, meaning you will total $10. If you do not take the bill the machine would have known that too, and the envelope would contain $100. Therefore not taking the bill yields higher return.

Argument for taking the bill: Say there are x dollars in the envelope. If you take the bill you get x + 10. If you don’t, you get x. Therefore taking the bill yields higher return.

My analysis: