Posts Tagged ‘Constitution’

Complexity, the “Do Something” Instinct, and the Sandy Hook Shooting

December 27, 2012 1 comment

I have as yet avoided writing about the Sandy Hook shooting, partly because I dislike rushing to rash decisions, and partly because I believe the narrative has focused on unimportant ideology as opposed to the important ideas underlying the situation and the reaction to it. Now, however, with the benefit of some distance, I will weigh in.

What happened was horrible. There is simply no way around that. On the other hand, frantic reactions, calls to political action, and statements claiming that what happened was “obvious” do nothing but exacerbate the problem.

In reality, while it is easy to deconstruct the event with the benefit of hindsight, it is simply impossible to claim some sort of valid foresight. It is not enough to say “I knew that something like this would happen,” because that is a statement without verifiability until the proof is at hand. And when the proof is at hand, such a statement is already useless. If you had any real knowledge, you would have stopped it from happening. If you had no ability to stop it, you had had no real knowledge – simply baseless speculation masquerading as knowledge.

One can analogize this “foresight problem” to other occurrences. For example, if someone gets in a car accident, he might say later on “if only I hadn’t slept in and left 20 minutes later than I usually do, I would never have been in this mess.” This is the functional equivalent of claiming foresight about Sandy Hook. If either were valid, the problematic situation would never have obtained.

Nor is it possible to claim that, despite the lack of specific foresight, there was enough knowledge to have stopped the tragedy via preventive action. This kind of claim usually follows the “if only we had this law…” form, and it is the functional equivalent of the above. This also fails to account for the foresight problem, and it suffers from a debilitating case of confirmation bias.

The foresight problem can be extended through thought experiment. Consider a chess game.* The number of possible chess games that can be played is somewhere in the order of 10^120, or many multiples of the number of atoms in the universe. Once the chess game is, say, 50 moves in, and the chesspieces are arrayed just so, it is relatively easy to reconstruct what happened. Before the game began, however, there was an infinitesimal chance of predicting just such an arrangement. And remember, this is chess: as complicated as its game-tree complexity is, it pales in comparison to the complexity of an hour, even a minute, of human action.

We have no useful foresight, but neither does our hindsight yield much when faced with the multitude of competing and interacting causes and effects that a chessboard simplifies but real life makes manifest. After all, if the “obvious” solutions were actually obvious in hindsight, this would not be a recurring problem. We would have corrected it after the last time.

For example, getting rid of guns does not solve the problem, as countries such as Russia continue to see mass violence despite heavy gun control, while Switzerland’s rate of gun violence is comparatively miniscule despite enormous rates of gun ownership. Britain found that gun violence increased 40% after its gun ban in the late 1990s. Unlike poorly-informed pundits, I will not speculate as to why. And indeed, a majority of the mass shootings that have occurred in the United States have occurred in states, localities, and even schools that are “gun-free” or gun-restricted zones. Real life does not cooperate with our strictures. (QED.)

Nor is lack of guns an obvious problem, as the just-as-reactive NRA has suggested. What earthly purpose would stationing the equivalent of TSA agents (who, by the way, are not armed) at schools be, when the TSA has shown nothing but incompetence? Why would one expect an armed policeman to stop a shooter when armed policemen are already commonly at schools and haven’t helped? Why would a national guardsman or combat veteran be effective? Remember that one of the worst mass shootings in history took place on a military installation in Texas. No shortage of guns on a military base.

What are we to do with ourselves, then, if there are no solutions to the problem? (And, emphatically, there are none.) We do the best we can to defend ourselves, but we also accept that the real world is a dangerous, messy place and circumstances beyond our control may end our lives abruptly.

Callous? I call it realistic.

Indeed, the possibility of being the victim of a mass shooting is quite similar to the possibility of being in a fatal car accident, except for the fact that the latter occurs with startling regularity by comparison. We seem to have no problem processing the idea that, while our lives might end on the road at any moment, we have balanced the risk and accepted that, dangerous as driving may be, we will carry on. We seem to completely lack the capacity to accept the idea that, while our lives may end in a mass shooting at any moment, we are capable of balancing the risks here too. Apparently, when guns are present, rationality goes out the window. This despite the fact that cars can be at least as lethal as guns.

And capable we are of balancing the risks inherent in life. After all, we do it literally all the time. Short of locking down the entire citizenry in individual padded cells, there is simply no way to prevent the next mass shooting. That may be hard to hear. But think of the risks you take every day that are greater. Driving is a good example, but also note that you are about as likely to be killed by lightning than be killed by a mass shooter. Shall we live our lives entirely indoors?

Or can we accept the fact that there is no solution?

Once we have accepted that the risk is intractable, we can begin to accept that calls to action, proposed laws, gun controls, the “do something” instinct – all are useless in the face of a tragedy like this. We can avoid the rush to judgment. We can avoid the poison of baseless ideology. We can begin the healing process. We can resume our lives.

While the complexity of the world denies us the ability to see into the future, we can see that the fruits of the “do something” instinct, be they legal or otherwise, are poisonous to liberty. We are faced with a choice. We can keep our liberties and our dignity intact, and live with a future where mass shootings are possible. Or we could pass laws taking away fundamental individual liberties, making the people servile and impotent, and thereafter live with a future where mass shootings are possible anyway.

These are our only two choices. We should choose wisely.


*I have previously used the chess example to illustrate complexity here.


In Praise of Copycats

August 15, 2012 Leave a comment

In this weekend’s Wall Street Journal, Kal Raustiala and Chris Sprigman have penned a thoughtful piece on the relationship between innovation and intellectual property. It’s called “In Praise of Copycats,” and it’s excerpted below.

The conventional wisdom today is that copying is bad for creativity. If we allow people to copy new inventions, the thinking goes, no one will create them in the first place. Copycats do none of the work of developing new ideas but capture much of the benefit. That is the reason behind patents and copyrights: Copying destroys the incentive to innovate.

Except when it doesn’t. There are many creative industries, like finance, that lack protection against copying (or did for a long time). A closer look at these fields shows that plenty of innovation takes place even when others are free to copy. There are many examples of successful industries that survive despite extensive copying. In fact, some even thrive because they are so open to copying.

The empirical case for intellectual property has not been proven (of course, finding a control group is difficult), and it seems as though many are successfully plying their trade in industries where copying is permitted. Ralph Lauren, for example, does not find it hard to land a paying job despite the lack of copyright protection for his designs. Vanguard Funds found no difficulty attracting billions to its S&P 500 index fund despite the lack of a process patent.

But it seems to me that the real question is whose interests a putative system of intellectual property is to protect. Is it more important to create a strong property right in patents, copyrights and trademarks so that inventors and their business interests are protected? Or is it more important to loosen the system so that the general public reaps the benefits? Ultimately, that seems to be the tradeoff.

I would personally prefer the latter, not just for the social consequences, but because the property right to what we now call intellectual property is a synthetic one anyway. It finds its justification more in the law than in first philosophy.

But given that, wouldn’t we do well to determine the legal foundations of intellectual property? Of course, we have to turn to Article 1, Section 8, Clause 8 of the U.S. Constitution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

“To promote the Progress of Science…”? Interestingly, this assumes that granting a private property right as such would do so. On the other hand, if it does not, then perhaps the legal protection of intellectual property is ironically unfounded.

In areas as diverse as fashion, finance and football, intellectual property is unprotected, and not only does the consumer ultimately benefit, but it certainly seems as though progress is not hindered. Perhaps there’s something to the copycats after all.

Justice Ginsburg would not look the to US Constitution in drafting a new one in 2012

March 5, 2012 1 comment

According to this New York Times article, the U.S. Constitution has been losing its international influence:

There are lots of possible reasons. The United States Constitution is terse and old, and it guarantees relatively few rights…

In an interview, Professor Law identified a central reason for the trend: the availability of newer, sexier and more powerful operating systems in the constitutional marketplace. “Nobody wants to copy Windows 3.1,” he said.

In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg of the Supreme Court seemed to agree. “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, theSouth African Constitution, the Canadian Charter of Rights and Freedoms or theEuropean Convention on Human Rights.

Justice Ginsburg would not look to the U.S. Constitution that she is sworn to uphold for inspiration? Maybe that is why she savages it at every turn.

But that’s ultimately not the problem here. Bad jurisprudence is one thing; bad principles are quite another.

Indeed, later in the article, Justice Scalia is quoted about his skepticism over “parchment guarantees,” and it is worth noting that a hypothetical new African nation could guarantee all they wanted and not put it into practice.

But the question is one of liberties versus rights.

The U.S. Constitution is fundamentally a limiting document. It says not much more than “the government cannot infringe on a person’s liberty to do…[fill in the blank].” Even its structural aspects, such as setting up the Congress and executive, are designed in such a way as to ensure their limitations – not their powers.

It may be “newer” and “sexier” to introduce a “right” to health care, housing, or food, but just because you put it in your Constitution doesn’t mean that you’re not forcing someone else to provide those goods. By contrast, the U.S. Constitution would be more likely to disallow the government from forcing the conscription of certain people for the service of other people.

You see, there are economic problems with bestowing positive rights to goods and services. Where guaranteed, these positive rights must either be explicitly limited, or more likely, limited by courts in ways that are suboptimal, precisely because goods and services, as an economic matter, are not unlimited.

These “rights” solve none of the problems inherent to the interactions of free people. All they do is add layers of bureaucracy.

Are they fashionable? Maybe. Sexier? Maybe. Are they half-baked and ill-designed to solve real problems? Absolutely. Ginsburg would be better served by furthering her understanding of the ultimate point of her own Constitution than looking across our borders for fantasy “rights” that amount to nothing more than simple coercion.


December 15, 2011 Leave a comment

You know, I do like this blog to be filled with real analysis of the issues, but sometimes things just don’t make sense.  The coming evisceration of the Constitution at the hands of the National Defense Authorization Act is a great example:

For those of you that are just now catching up on this, the House basically voted last night to suspend the right to due process, the right to a trial by a jury of an accuser’s peers, and the right to habeas corpus. And now that the so-called “war on terror” has been expanded to include not only al-Qaeda but also the Taliban and other “associated forces.” Given the war on terrorism has become an open-ended war with civil liberties being offered by Congress on the alter of the “national security,” this provision will be no doubt be abused; if not by this administration than the next.

Sometimes you just have to ask.  What the hell, guys!?

Freedom to Be Sacrificed at the Altar of IP (Again)

November 4, 2011 Leave a comment

Matthew Ingram at GigaOm has written a piece worth exploring, called “Looks like Congress has declared war on the internet.”

In a by now cliched story, Congress has taken that which they do not understand (the internet), hitched it up to something that they do (overregulation), and squeezed several tight coils of bad legislation right on our collective front yard.  In pertinent part, Ingram spells out the problem:

What it really is, however, is a disaster for the internet. As the Electronic Frontier Foundation notes in a post on the proposed legislation, the law would not only require ISPs to remove websites from the global network at the request of the government or the courts (by blocking any requests to the central domain-name system that directs internet traffic), but would also be forced to monitor their users’ behavior in order to police acts of copyright infringement. Providers who do not comply with these requests and requirements would be subject to sanctions. And in many cases, legal hearings would not be required.

The bottom line is that if it passes and becomes law, the new act would give the government and copyright holders a giant stick — if not an automatic weapon — with which to pursue websites and services they believe are infringing on their content. With little or no requirement for a court hearing, they could remove websites from the internet and shut down their ability to be found by search engines or to process payments from users. DMCA takedown notices would effectively be replaced by this nuclear option, and innocent websites would have to fight to prove that they deserved to be restored to the internet — a reversal of the traditional American judicial approach of being assumed innocent until proven guilty — at which point any business they had would be destroyed.

So the internet, which is as vibrant, useful, and frankly awesome as it is because it has not heretofore been strangled by the stupidity of a government that is always at least two decades behind the times, will now be strangled as such.  Wonderful.  Way to look out for our best interests, Congress.

The “dormant” commerce clause and the primacy of society

January 10, 2011 Leave a comment

I occasioned upon Mark J. Perry’s Carpe Diem blog today, and read an interesting post called “The 10 Problems with Free Trade Among U.S. States.”  As far as satire goes, it’s quite straightforward.  However, it is quite effective at illustrating its point – namely, that restrictions on trade are fundamentally restrictions on people. 

The national borders we use to demarcate those with favored status from those without are artifical.  If we accept the proposition that all men are created equal, we cannot accept restraints on trade since they deprive equal people of the benefits of trade based solely on which side of a border they happen to be on.  Here is Professor Perry:

The same arguments against free trade among nations should logically follow as arguments against free trade among American states, counties, cities, or individuals.  That is, there is nothing really special or unique about an imaginary line called a national border that makes it economically different than an artificial line called a state border.  The economic benefits of free trade have nothing to do with whether a buyer and seller are on the same side, or different sides, of imaginary lines called national, state or county borders. 

The constitutional scholars among us perhaps remember a concept called the “dormant” commerce clause, which was theoretically derived from the Congress’s power to regulate commerce found in the U.S. Constitution.  Despite how the commerce clause over the last 70 to 80 years has been twisted beyond all recognition into nothing more than an excuse to wield power, some remnants of the original ideological heft of the clause remain.  These remnants are collectively called the “dormant” commerce clause. 

Now, it is clear that the founding fathers saw no real problem with international trade restraints, as they gave to the government the power to lay and collect tariffs.  However, they did recognize the absurdity of restrictions on trade as among the several states.  In this case, there was an explicit recognition of the fact that a tariff laid by, say, South Carolina on products from Georgia would have an undoubtedly detrimental effect on the citizens of both states. 

It is also an explicit recognition of the primacy of society over government.  Because people require goods and services, the provision thereof is best provided for without interference of government.  (Note the contrast with the progressive point of view, wherein goods and services should be “equitably distributed,” and the dormant commerce clause should have no significant effects as resources are employed and deployed by the federal government anyway.)

My question, also addressed by Professor Perry, is this.  If a tariff laid on one U.S. state by another is bad for citizens of both states, why would that not extend to nations?  Free trade has had its fits and starts, but it is the sensible policy when all is said and done.

The Rational Basis Test grows another baby tooth!

October 25, 2010 Leave a comment

When dealing with constitutional questions regarding due process or equal protection issues (related to the 5th and 14th amendments), U.S. courts have taken a three-level approach, which stems from constitutional jurisprudence (i.e., not the Constitution per se).  Where dealing with a protected class of people, courts will review the law using “strict scrutiny,” where dealing with a “quasi-suspect” class of people, courts will review the law using “intermediate scrutiny,” and where dealing with anything else, courts look to determine whether the government has a “rational basis” for passing the law that it did.

The law is full of zany things like “rational basis testing” that grow like 220 years of kudzu over the original meaning of the Constitution.  But the rational basis test has been one of the biggest jokes among them.  It requires that government action be “rationally related” to a “legitimate” government interest.  However, “legitimate” simply means whatever the court can think up that seems like it would be legitimate regardless of whether it was the actual purpose of the law

Similarly, a “rational” relation does not mean that it has to make sense, but merely that it has to appear to make sense to the lawmakers.  For example, if our legislators thought that printing and distributing $1 million for every man, woman and child in the country would serve the general welfare (by making everyone “rich”), that would be absolutely rational according to the court test.  Never mind that it’s so far from rational, properly speaking, as to be laughable.

In fact, it is widely known among litigators that if comes down to a rational basis test, the government will almost always win.  There is truly no limit to the mental gymnastics one can do in order to make a law seem “rationally” (but not rational) related to a “legitimate” (but not legitimate) government purpose.

Which is why it’s nice to see cases like this one from Florida, In re: Matter of Adoption of XXG and NRG, in which the Florida Attorney General declined to appeal a lower-court decision overturning Florida’s blanket ban on gays adopting babies..  See the official opinion here.  I have no strong opinions one way or the other on adoption issues; they’re generally outside my realm of experience and expertise.  However, I am quite interested in the legal precedent in that the government was unable to prove to the satisfaction of the courts that any “rational basis” existed for their law.  In a case where the deck was stacked very heavily in favor of the government, the government could not pull through.

For some years now, beginning perhaps with Romer v. Evans, there has been a movement in some legal and judicial circles to give rational basis test “teeth.”  I think that would be a small, yet very significant, step in the right direction.  The more judicial skepticism brought to the whimsy of the lawmakers, the more assiduously asserted our Constitution will be.  And since our Constitution exists to protect us from our government, that is a very good thing.

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