On A Difficulty In The Practice of Originalism

I have long believed that there is a difficulty presented by original meaning-style interpretation. As a software engineer, my first instinct is to use pointer dereferencing as an analogy, but I am not sure that will be helpful to my readers (if there are any of you left) so let me explain with an example.

Let us consider the word “cruel” in the 8th amendment. The word “cruel” is of course itself a reference to a concept. Presumably, the word “cruel” at the time of the drafting referred to a concept. Just for the sake of argument let us say that this concept was “the purposeless infliction of suffering”. These concepts can themselves refer to other concepts. Perhaps the only suffering that is meant is physical suffering. Finally, this concept would have had applications. So for instance, the use of the breaking wheel would have been cruel, but execution through hanging would have not.

So as you can see, the original meaning isn’t a single item. It is a chain that originates with a word and leads all the way to classification decisions. This is important because judges are responsible for making classification decisions: Is the punishment I am looking at cruel or not?

And this is where the problem comes in: where in the chain do we switch from looking at the original meaning to looking at current facts. For instance, it may be that some day, the word “cruel” will come to mean “unpleasant to those who administer the punishment”. It could be that our understanding of “suffering” changes and so what was once physical suffering now encompasses psychological suffering too. Finally, we could learn that certain punishments impose suffering which we did not know about.

Breaking the chain at those different points will change the outcome of a case. And the Constitution is replete with opportunities for this to come up. Does “due process” mean trials must be fair and so we must enforce current norms of fairness? Or does it mean we must enforce the norms which were seen as fair at the time of ratification? Or does it mean we must use our modern understanding of original norms of fairness? Does “equal protection” mean the law cannot make illegitimate distinctions among people and therefore same-sex marriages must be allowed to happen? Or does it mean the law cannot make distinctions among people which would have been seen as illegitimate at the time of ratification?

I am not sure how this conundrum can be resolved.

PS: If pointers do speak to you, think of it this way: You have a word which is a pointer to a concept which is a pointer to a decision function. So which pointers do you freeze in order to get original intent?

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Matthew Yglesias’ Strange Take On Bitcoins

Matthew Yglesias made a very strange argument about Bitcoins a few days ago.

So if over time more and more people want to use Bitcoins to conduct transactions of various kinds, then the price of bitcoins is going to have to rise and rise. The problem is that if the price of a bitcoin is on a steady upward trajectory, then nobody’s actually going to want to spend a Bitcoin on anything. And if everyone’s hoarding their Bitcoins, then the network is actually useless. Then, since it turns out to be useless, you get a crash.

This seems to completely forget about marginalism. What Matt Yglesias seems to be saying is that people want to hold on to assets which they believe will rise in price. That may be true, but that does not mean they hold on to these assets forever. Don’t believe me? Look in your retirement account. You most likely believe that the assets in there will be more valuable in the future. (if not, you’re doing it wrong) But that will probably remain true the day you retire and sell part of your investment portfolio in order to pay living expenses. Sure, you could wait and get another year of return, but that also means not getting food, electricity, shelter, medical care, etc…

The reason Bitcoins so wildly fluctuate is not due to their fundamental deflationary nature. It is because the market is not mature. You have a relatively small number of people who think it is the coolest thing ever and are acting somewhat irrationally. If Bitcoins were to see wide adoption (not something I expect) the total mass of value would increase significantly and the smaller somewhat irrational players wouldn’t be able to swing the market as much.


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A Strange Definition of Authorized Access

Orin Kerr has announced that he is taking on a CFAA case pro-bono. The case seems to have all sorts of procedural and substantive defects on which I am not qualified to comment, but there is one substantive issue about which I know enough to have an opinion: Do Andrew Auernheimer’s actions constitute “unauthorized access”. Orin Kerr says no. But I think that when you understand the way the Web works, you will have reason to doubt Orin’s conclusion. I will try to explain the technological reasons that make me doubt Orin’s conclusion.

For a longer summary of the facts, go read the blog post’s first few paragraphs. I tend to trust what Orin Kerr says, so I will just operate under the assumption that he is right. But let me summarize just the part that interests us.

There were a number of web pages which one could access using addresses that must have looked something like this: http://example.com/<some_id&gt; or like this http://example.com/page?id=<some_id&gt;. These are called URLs (Universal Resource Locator) and if you have found my blog, you’ve probably seen thousands of things like these. Orin’s client wanted to compile a list of the information provided on each of these pages (email addressees here) so he wrote a program which tried lots and lots of values for <some_id> and visited the web pages. Orin’s argument is simple: whatever information you get when you visit such a page is on the “public internet”. Surely, visiting a publicly-accessible web page cannot be “unauthorized access” or “exceeding authorized access”. That sounds reasonable, but let’s pop the hood and find out what happens when you visit such a web page.

The first thing that happens is that your computer analyzes the URL to find something called the domain name. Here, it is “example.com”. It then uses a directory (the Domain Name System or DNS) to find an Internet Protocol Address. (IP Address or just IP for short) The IP address is like a phone number which allows your computer to call somebody else’s computer over the Internet. (Here, it was a web server run by AT&T) Once that call has been placed and a connection between the two computers has been established, the two computers need to speak a common language. Here, they will speak a language called the HyperText Transfer Protocol or HTTP. (Yes, when you see http:// somewhere, that’s what it refers to: the language the two computers will speak to each other.) Now, your computer will send a message which will ask for the web page and in return, the web server will send the web page which your computer will draw on your screen. Let’s look at what the message sent to the web server will look like assuming <some_id> is 1234567890:

GET /1234567890 HTTP/1.1
Host: example.com

Now, you might feel that this is not much of an argument and it’s not. But now, let me show you something else. This is the sort of message your computer will send to Facebook or a variety of other similar sites when they want to get the information in your account such as your private emails.

GET /my_secret_account_info HTTP/1.1
Host: example.com
Cookie: SID=1234567890

Some variant of that is also the way you send your password when you log on. Now, look at the two things above. I just don’t see how the difference between the two messages should make the difference between lawful authorized access and unlawful unauthorized access. I just don’t think Orin Kerr’s “on the public internet” argument can make much sense.

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Keynesian Policy For Those Who Don’t Know The Theory

Keynesian Policy For Those Who Don’t Know The Theory

This is what happens if you explain Keynesian policy advice in a recession without bothering to explain the theory behind it.

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What Is An Imminent Threat?

NBC has obtained and released a copy of an Obama Administration Department of Justice memo which provides legal justification for the targeted killing program which the executive has been conducting. (HT Orin Kerr)

Pages 6-9 of the memo describe a 3-part test that they believe would ensure that the killing of a US citizen would be legal. The memo makes it clear that the legal authority to kill US citizens is not limited to that particular situation. The test is in the bottom paragraph of page 6. I am reproducing the relevant passage here:

(1) where an informed, high-level official of the U.S. government has  determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) where a capture operation would be infeasible-and where those conducting the operation continue to monitor whether capture becomes feasible; and (3) where such an operation would be conducted consistent with applicable law of war principles.

Apart from the part where a member of the executive makes the call, this actually seems pretty reasonable. This is actually the test outlined by Eric Holder in his speech on drone strikes last year. But they have a very novel understanding of the word “imminent”. Page 7 paragraph 1:

First, the condition that a operational leader present an “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.

This is not what the word “imminent” usually means. This is most likely not what most of us who read Attorney Holder’s speech on drone strikes understood when he spoke of “imminent threat” or “imminent threat of violent attack” 5 times. The memo later provides an example on page 8 paragraph 2 of what would be an imminent threat:

… a high level official could conclude, for example, that an individual poses an “imminent threat” of violent attack against the United States where he is a operational leader of al-Qa’ida or an associated force and is personally and continually involved in planning terrorist attacks against the United States.

The memo goes provides two arguments as to why they must use such an extra-super-double-broad definition of “imminent” as opposed to the more accepted one. Roughly, they argue that

1) it can be very difficult to effectively respond to a terrorist threat by the time it is imminent. Page 7, paragraph 2, they use the example of the September 11th attack:

requir[ing] the United States to refrain from action until preparations for an attack are concluded, would not allow the United States sufficient time to defend itself.

This may be true, but this memo only refers to targeted killings. If the United States was aware of the September 11th attack ahead of time, there would have been a whole host of possible responses more effective than attempting to kill the leaders of the operation.

2) it’s really hard to find imminent threats. Again, page 7, paragraph 2:

It is very difficult to know when or where the next incident will occur.

That may very well be so, but this does not generally justify lowering the bar. Could you imagine a prosecutor going before a court and arguing that because the crime they are prosecuting is very hard to prove beyond any reasonable doubt, they should only have to convince the jury that it is only more likely than not, that the defendant was guilty? Of course not.

I have no doubt that many will continue to see such strikes as justified, but one has to admit that being “continually involved in planning” isn’t exactly the “imminent threat” some tried to sell us on. I may post further comments depending upon the time I have available to finish reading the memo and to write my thoughts on the matter.

I am hoping that the memo goes into details on the standard of proof that is expected to be met. So far, only the second sentence of paragraph 2, page 7 gives any indication and it seems to imply that “clear evidence” is already too high a bar to meet. Hopefully, that is not the case. [Update: They don’t say anything more on that topic.]

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The Platinum Coin

The hot topic of the moment is the Platinum Coin. If you haven’t heard of it, it is the idea that President Obama might avoid having to get Congress to raise the debt limit by having the Treasury mint a Platinum Coin with a face value of 1 trillion US Dollars and deposit it at the Fed. The Government could then continue to operate normally without having to legally raise debt.

I don’t like that idea but it’s important to note a few things.

1) This is most likely legal. I’m not a lawyer, but those who I read seem to think so. This is merely a statute with unforeseen circumstances. Congress intended for memorial coins with reasonable values to be minted for collectors and such. Had this come up, I doubt the statute would have passed as is. But using laws against Congress’ intent is not illegal. Judges don’t read minds, they read statutes.

2) This is not inflationary. Well, no more so than fiscal policy usually is. The government would deposit the coin at the Federal Reserve. Most likely, in order to balance its balance sheet, the Federal Reserve would end up selling some Treasuries when the government came in to do withdrawals. In other words, the government would be financing it spending with Treasuries as usual. No difference there.

I am however not a big fan. And it’s not because it is undignified. I am not a big fan because it runs around the debt limit. It effectively means there is no debt limit. Whenever the executive wants to borrow money, it mints a coin, ships it to the Fed which sells Treasuries. It’s dishonest.

Some people justify that by calling the Republican-controlled house terrorists and saying that they are using blackmail. If you believe you are fighting disaster at the end of evil, dishonesty seems justified. But I have a hard time seeing the House as terrorists for refusing to raise the debt ceiling. At least no more than Obama for refusing to raise the debt ceiling if it comes with more spending cuts than he wants. It’s the House’s prerogative to refuse to raise the debt ceiling and Obama’s prerogative to refuse to give them spending cuts. That’s all.

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What Do Charter Cities Tell Us Of The Legitimacy Of Governance?

I want to indulge in a thought experiment. Let us envision that I am fabulously wealthy. (It is my thought experiment after all!) Using my fabulous wealth and moved by the profit motive and humanitarian desire, I decide to found a charter city of sorts. I fly to some poor country, purchase a vast tract of land, make some agreement with local officials, hire a private security company to protect my property and declare a charter. The city’s charter being a model of anarcho-capitalistic and libertarian principles, I am vested in my full property rights. This allows me to set all sorts of corporate policies which one must agree to if one is to come onto my land.

I am of course both a pragmatic and a principled libertarian, so without divesting myself of my property rights and subject to corporate policies, (such as to allow the operation of the security forces in my employ who are tasked with enforcing corporate policies) I grant property-like contracts in land in exchange for some payment. The holder of this contract may exclude others, transfer the contract, etc… This gives the contract holders the incentives they need to found businesses, improve the land and carry-out other fruitful activities. (from which I benefit thanks to rental agreements for parts of the land) For the sake of convenience, we call these contracts sales. There is no confusion, I (or my corporation of which I am sole owner) still own the entire city. But those contracts are so similar to sales, that we call them sales and outside of formal arbitration proceedings, everyone refers to these contracts as sales and say that they “own” the piece of land which the contract has given them some control over.

Anyone who enters into the city must first sign a contract at first agreeing to abide by corporate policy. Same thing for anyone who wants to stay in the city. But after a couple generations, it is generally understood that those are the conditions to stay in the city and so from an explicit contract, the city moves to an implicit contract whereby staying in the city is understood to mean agreement to be bound by the corporate policies.

The city thrives and I become even wealthier. But times passes and I passe on, leaving this wonderful economic enterprise to my only child who herself follows my wise example, leading the city to thrive and expand (who wouldn’t want to sell their nearby land to be included in this wonderful world?) and so on for generation after generation. But some 300 years later, something changes. My descendant and sole owner of the corporation went to college to study late-20th and early 21st century United States history and fell in love with the beautiful rhetoric of politicians. So armed with his power to modify corporate policy, he embarks on an ambitious project of reform. Advisers and long-time executives protest, but he nevertheless imports the early 21st century body of law into corporate policy. Much has to be re-written to account for a different legal environment and some things just cannot be done, but the vast majority of laws can be ported over. For instance, a variety of narcotics are prohibited, everyone is required to purchase some sort of health insurance, representative bodies are elected, the practice of certain professions requires a license issued by the city, etc… In practice, those who live in the city in 2313 are subject to the same rules as we in 2013 real-world America are subject to.

Now, my question is this: What is the difference between my 2313 charter city and modern America? A simple libertarian answer is that my descendant owns the place and therefore can do as he pleases, while nobody owns the United States and therefore, the government’s action is illegitimate. But I find that intuitively hard to believe. Would libertarians really change their mind about everything if it was suddenly revealed that 300 years ago some guy held clear title to the whole landmass of the United States and decided that from now on the Constitution was going to be the rule on his property? Would the War On Drugs suddenly be acceptable if we found out it was authorized by some absent landlord whose rules we all agreed to live by implicitly upon entering or remaining in the United States? I don’t think I would change my mind. Is there any libertarian that would?

I ask these questions because they have fundamental implications for libertarianism. If libertarian principles prohibit my descendant in the above thought experiment from waging a war on drugs on his property, what other private actors may be prohibited by libertarian principles from exercising their property rights? On the other hand, if it is legitimate under libertarian principles for my descendant to act as he does above, is it really because of the unbroken chain of clear property titles? If not, could current government entities have the legitimacy to enact some of these laws? Could we for instance consider that a municipality owns the land it covers and that land-owners there have merely contractually acquired some rights, but not all property rights? I find these hard questions and I want to know what others think.

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Why aren’t there more women libertarians?

Julie Borowski (TokenLibertarianGirl) tells us it’s because women are slaves to pop culture and Cosmo is liberal propaganda. Steve Horwitz and Sarah Skwire (Bleeding Heart Libertarian) tell us it’s because Julie Borowski tells women they are slaves to pop culture. Daniel Kuehn (Facts And Other Stubborn Things) tells us it’s because women are smarter than men.

Certainly, Steve Horwitz and Sarah Skwire are on to something. If Borowski is in any way representative of the view of women that many libertarians hold (and while I have no scientific evidence, my impression is that it is true to a point) this makes the libertarian movement very unfriendly to women.

However, I think there is another force at work, which is quite simply that the libertarian movement appears to have mostly tied the knot with conservative movement. And the conservative movement is very unfriendly to women. Conservatives have in recent history been absolutely terrible with women’s issues. And while the conservative movement has taken on very libertarian fights such as opposing government-provided birth control and abortion, it has also historically been associated with very anti-libertarian fights such as prohibiting birth control or abortion. The conservative movement is also host to some prominent personalities who engage in slut-shaming and other less-than-friendly-to-women activities, not to mention make statements of doubtful biological accuracy. Of course, not all conservatives are Rush Limbaugh, but it’s people like him that get the microphone these days.

This is bad. I understand the tactical advantages of not going alone. But this is the price we pay: we get associated with people who do want to roll back women’s rights a couple decades. And so women are understandably wary of hopping on.

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Sometimes Gene Callahan Does Not Try Hard Enough

Gene Callahan argues that while evolution can account for many complex attributes, he does not see how self-awareness and consciousness could be the product of evolution. (HT: Daniel Kuehn) His post is brief, but my understanding of what he is saying is that evolution is entirely dictated by mechanistic processes. In other words, evolution can account for human actions, but it cannot account for our consciousness and our self-awareness. It is true that from an evolutionary stand-point, all that matters is that I dodge when a car is about to run me over. Me having self-awareness and consciousness is entirely irrelevant. I think there are two answers.

First, it’s important to realize that while evolution does not care about why I jump out of the way of the car, it is very important that I do. So if my developing self-awareness makes me jump out of the way of cars, then self-awareness is selected for. This is something Gene Callahan acknowledges when he calls self-awareness and consciousness mere byproducts. But I don’t think it makes sense to dismiss the mechanism whereby I jump out of the way of a car. Grasping things is selected for. That’s why opposable thumbs are selected for. It doesn’t make sense to say that opposable thumbs are a mere by-product of evolution with no independent use. Opposable thumbs are the way we grasp things.

Second, Gene Callahan appears to be assuming that there is something special about self-awareness or consciousness. In other words, I think he is saying that rather than having self-awareness or consciousness to make me jump out of the way of cars, my brain could simply be wired to jump out of the way of cars without any of that extraneous consciousness or self-awareness. In other words, he is assuming dualism: You could have a brain to make me jump out of the way of cars without having it endowed with that extra-special thing we call consciousness. But obviously, if he starts out by assuming that there is this extra-special thing called consciousness which doesn’t behave according to the same rules as the material world, it is not saying much that that same extra-special thing cannot be explained by the rules of the material world, one of which being evolution. He’s just assuming his conclusion. That’s not trying very hard.

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Watch Out For Political (In)Correctness

Bryan Caplan points us to an insightful essay by the philosopher Roderick Long on political correctness.

There are two ways of letting political correctness control your mind.

One is to reject viewpoints, not because they’re false, but because they’re politically incorrect.

The other is to embrace viewpoints, not because they’re true, but because they’re politically incorrect.

We libertarians are seldom guilty of the first mistake. But we are often guilty of the second. Those who commit the second mistake are as much slaves of political correctness as those who commit the first.

At an academic reception I once saw a libertarian introduce himself to a female professor with the winning line: “Are you a feminist? I hate feminists.” Libertarians describe the PC crowd as hypersensitive and too easily offended. The charge is often valid. But being hyperinsensitive, and too easily offensive, is no improvement.

Bryan goes into much detail responding to the essay, I agree with him on some points, disagree with him on others, but the quote above is I think important.

As libertarians, we must frequently challenge political correctness to expose our ideas. I recently had a conversation with a female liberal friend of mine where I explained my principled objection to equal-pay laws. That was uncomfortable even though my previous experience told me that this conversation wouldn’t cause our friendship to be strained. I knew that holding this view, discussing it, and especially discussing it with a woman while myself being a man was a very serious violation of the social norm of political correctness.

As usual, I could see the easy way out: denounce the norm and take a principled stance opposing it. It would resolve the cognitive dissonance. The problem with that approach is that if you do it too much, you will develop a knee-jerk reaction to political correctness and before long, you’re arguing the most ridiculous positions because they are politically incorrect. I have been down that path and let me warn you if you are new to this: HERE BE DRAGONS.

Not only will you make a fool of yourself and alienate many perfectly good people, but you will also be betraying your own convictions in search of intellectual comfort. It’s not worth it. Take the harder path. Defend your real convictions but remember that just because something isn’t politically correct does not mean it’s right. Making other people feel uncomfortable just for the sake of it isn’t a virtue.

[UPDATE: I apparently forgot to title the post earlier. Sorry.]

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