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.

Churchill, “satisfied nations”

Toward the very end of his Edward Said Memorial Lecture: The Unipolar Moment and the Culture of Imperialism (61:45 minutes into the clip) Noam Chomsky mentions that after WWII

“the U.S. shouldered the responsibility that was eloquently described by Winston Churchill, the responsibility to protect the interests of the satisfied nations whose power places us above the rest, the rich men dwelling in peace within their habitations to whom the government of the world must be entrusted”.

Chomsky is quoting from Churchill’s 1951 book, Closing the Ring, p. 336. Here is the paragraph:

Stalin then asked what could be done for Russia in the Far East. I replied that Russia had Vladivostok, but he pointed out that the port was ice-bound, and also depended on the Straits of Tsushima. At present the only exist that the Russians had was Murmansk. I answered that I wished to meet the Russain grievance, because the government of the world must be entrusted to satisfied nations, who wished nothing more for themselves than what they had. If the world-government were in the hands of hungry nations there would always be danger. But none of us had any reason to seek for anything more. The peace would be kept by peoples who lived in their own way and were not ambitious. Our power placed us above the rest. We were like rich men dwelling at peace within their habitations.

“[L]ive up to the conventional standard” vs. “outdo those with whom we are in the habit of classing ourselves.”

Chapter Five of Thorstein Veblen’s The Theory of the Leisure Class (1899), The Pecuniary Standard of Living, begins as follows:

For the great body of the people in any modern community, the proximate ground of expenditure in excess of what is required for physical comfort is not a conscious effort to excel in the expensiveness of their visible consumption, so much as it is a desire to live up to the conventional standard of decency in the amount and grade of goods consumed. This desire is not guided by a rigidly invariable standard, which must be lived up to, and beyond which there is no incentive to go. The standard is flexible; and especially it is indefinitely extensible, if only time is allowed for habituation to any increase in pecuniary ability and for acquiring facility in the new and larger scale of expenditure that follows such an increase. It is much more difficult to recede from a scale of expenditure once adopted than it is to extend the accustomed scale in response to an accession of wealth.

Political equality in a large group

This post is aimed at being the first part in a long-delayed “attempt to embark on” “a methodical analysis of the set of possibilities for achieving political equality”.

Part 1: Optimal decision-making, group rationality

… in which it is argued that groups, in an ideal setting, can achieve rational decisions. Group decision making constrained by practical circumstances should therefore be designed so as to produce decisions that approximate the decisions that would have been made under ideal conditions.

It is sometimes asserted that groups cannot form good policy. When such notions are expressed by the less educated, they are are attributed to the authoritarian sentiments of the unsophisticated. When such ideas are proposed by the educated, they are considered evidence of hard-headed realism. Elite speakers often mention Arrow’s “impossibility theorem” (what Arrow called the ‘General Possibility Theorem’) and claim that it “shows” that group rationality is impossible.

Obama’s name recognition history

The case of Rudolph Guiliani suggests that mass media cannot dictate to the public who to vote for. However, since it is impossible to vote for a candidate one has never heard of, mass media cannot help but determine who the public will not vote for.

Senator Barack Obama announced his candidacy for president in January 2007, yet even by by February 2006 over 40% of the people heard enough about Obama to have an opinion about him.

For comparison, a different Democratic congressmember running for the nomination, Dennis Kucinich, never managed to have more than 35% name recognition, even during the height of the primary season.

(The points marked with ‘k’ show the proportion of people recognizing Kucinich.)

Data: pollingreport.com: Newsweek, NBC and Gallup series.

Income of richest households vs. tax on high incomes

During the last 90 years the U.S. has experienced large changes in the share of the total national income controlled by the richest households. The (pre-tax) share of the richest 0.01% of households, for example, was under 1% in the late 1970’s, but over 5% in the late 1920’s and in the years 2005 and 2006.

Over the same period, income tax rates on high incomes varied greatly. The top income rate fluctuated between over 90% (1950’s and early 1960’s) and under 40% (1920’s and 1987 to the present day).

As is evident in the chart below, those two phenomena are strongly negatively correlated over time. The correlation factor is about -74%. Of course, correlation does not imply causation, but even if high tax rates on high incomes do not directly translate to smaller (pre-tax) income for the rich, the correlation supports the notion that inequality in income is determined to a large extent by public policy rather than by an “impersonal phenomenon, the market price”.

Data: Income data are from Thomas Piketty and Emanuel Saez, “Income Inequality in the United States, 1913-1998”; updated version and updated data files available at Saez’s website. Tax rate data are from “Personal Exemptions and Individual Income Tax Rates, 1913-2002”, an IRS publication.

Comment on Phillip Davis’s “The Market for Scholarly Articles”

As Phillip Davis writes (reprinted in the IMS Bulletin), scholarly authors are driven to publish in journals because that is the way to have their work noticed and readers read journals because these provide some measure of quality assurance. Davis is wrong, however, on multiple counts, when he concludes: “This system is not intended to be fair and democratic, but it saves the time of the reader and functions to help consensus building in science. For those who feel that this perpetuates hegemony, let them eat cake.”

The academic publishing system is intended to be fair; the current system (though better than nothing) performs poorly as a time saving tool for the reader; “consensus forming” (i.e., suppressing non-conventional thought) is not a legitimate function of a scientific communication channel; and, finally, there is no reason to dismiss people who are unhappy with the current system with “let them eat cake”: there is a better way to run the scholarly publishing system.