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January 31, 2005
explaining the exit polls?
Paul F. Velleman: January 31, 2005
In the 1970’s and 80’s I worked on election nights for a major network as part of a team of statisticians making “calls” in statewide races (President, Senator, and Governor). Eventually, the team was disbanded because exit polls were so accurate that our expertise was no longer needed.
But in the past election, the exit polls differed from the recorded vote by an unprecedented amount. Nationwide, exit polls predicted that Kerry had won by 3%, but the final tally showed Bush ahead by 2.5%. Errors in some key states were even larger. As a statistician, I have been concerned that the errors were unexplained. Last week, Edison Media Research and Mitofsky International, who conducted the exit polls on contract for the major networks and news services, released a report on the errors in their polls. Now an organization called US Count Votes has released an analysis of the E/M data that raises serious questions about E/M’s proposed explanations for the exit poll biases.
All who have considered the problem agree that there are three plausible explanations:
1. Chance error,
2. Bias in the exit polls, and
3. Inaccurate election tallies, or (say it softly) election fraud.
Edison/Mitofsky and all who have examined the data agree that (1) is not plausible. The errors were so extraordinarily beyond what could occur simply by chance that we can safely exclude this possibility. Anyone who has taken a freshman Statistics course can do the calculations.
The E/M analysis arbitrarily ignores (3) and considers only possible biases. In one sense, this is understandable. Their job was to predict the final vote totals and they failed miserably. Some commentators were made to sound foolish when they started talking as if Kerry had won by about 7pm on election night. Clearly E/M’s clients didn’t get their money’s worth.
But as citizens, our job is somewhat different. If the bias in the exit polls can be explained by errors in E/M's methods or by other factors, it would reduce the concern for the vote itself. This analysis of the E/M data makes it clear that the E/M report fails to provide such an explanation. And, of course, if the exit polls were not themselves flawed, that would raise questions about the honesty of the vote itself.
I have looked at the E/M data and participated in the discussion as the US Count Votes document was refined. I have signed their report as a member of the team that reviewed the work. I am posting this commentary here to direct readers of the blog to that report. I think their points warrant serious consideration and that they clarify the need for further analyses of the voting and polling data.
The underlying scientific consideration is that any theory or model that claims to account for patterns in data must make sense no matter how we view the data and must be consistent with other external information. Specifically, if there are biases inherent in the E/M exit polls, we should expect them to follow their own consistent patterns. For example, it isn’t plausible to posit different biases in different places without offering any account of the differences. Such ad hoc explanations are not scientifically or statistically supportable.
Nor is it plausible that a bias present in some locations should inexplicably be absent in others. Conversely, if there is a pattern to the biases that makes sense, the very existence of such a pattern makes the proposed explanation more plausible.
For example, one early explanation of the exit poll errors was that (more Democratic) women tend to vote early, while (more Republican) men vote later. Such an explanation could be supported by finding trends in the biases during election day (E/M reported poll results in three waves). But no such pattern is found, and E/M do not propose that explanation. They analyze data from the end of the polling day, and it is those data that show the biases they are trying to explain.
So what do they propose? E/M’s explanation is simply that Bush voters were substantially more likely than Kerry voters to decline to be interviewed. (Specifically that 56% of Bush voters but only 50% of Kerry voters declined.) E/M offer no evidence of this other than the obvious fact that the polls don’t match the recorded vote and the unstated fact that they can find no other explanation. But there are no underlying patterns to support their explanation. For example, E/M look for patterns in refusals and find none. In fact, as the US Count Votes report points out, the response rate of voters willing to be polled is actually a bit larger (although probably not significantly so) in states that voted more strongly for Bush—the opposite of the pattern that would support E/M's hypothesis.
Does the E/M hypothesis account for other patterns in the data? They propose no such explanations and admit to some patterns that their hypothesis fails to explain. For example, states that voted with paper ballots showed only small random errors between exit polls and votes, well within statistical error. States that used automated systems showed large errors fairly consistently biased toward Kerry. It doesn’t seem plausible that voting method would influence a voter’s willingness to talk with pollsters (nor do E/M claim that this happened).
Let me be very clear. I do not assert there was extensive fraud. I would prefer not to think that, and I had hoped the E/M report would reveal a systematic flaw in their methods that accounted for the errors. But it hasn’t, and the issue is still open. The E/M report does not account for the biases in a manner that would support explanation (2). The exit polls may well have been flawed, but we have yet to see a plausible account of how or why.
The data released thus far beg for a more thorough analysis. E/M have not released precinct-level data, which would be necessary to determine whether voting technology is a factor. I hope that they will do so soon. I also hope that the news media report this story so that the public can be widely informed about it. I recognize that if significant problems with the reported vote are found, Republicans will feel that the effort was somehow directed against them. But honest voting is a value that should be supported equally by both Left and Right. We cite discrepancies between exit polls and votes in elections in other countries as evidence of problems. Especially when we have been called to spread liberty and democracy throughout the world, it behooves us to make our own democracy as open and honest as we can.
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January 30, 2005
Agreement and Disagreement
Gerald Dworkin: January 30, 2005
The film director Bertolucci once said that one can only disagree with those with whom one basically agrees. This is an interesting idea and I would like to explore what might be meant by this.
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The Vote in Iraq
Stephen Darwall: January 30, 2005
Michael Ignatieff's piece in today's New York Times strikes the right tone concerning today's vote in Iraq. Whatever one's view about the American invasion and occupation of Iraq, we should unite in admiration of Iraqis who have stood up to attacks on democracy of unparalleled violence to participate in today's elections. According to the Times's early reports, voting in Baghdad is higher than expected. If these reports hold up, this is very good news from a country that has had significantly more than its share of bad (for which we bear great responsibility). Whatever happens, Iraqis who are participating deserve enormous admiration and respect.
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January 28, 2005
two bills from Rep. Bartlett
Don Herzog, The Bartlett Files: January 28, 2005
Suffering a lazily pleasurable case of Bartlett-on-the-brain ever since stumbling into the representative's stumbling comments on our being a Christian nation, I found myself wondering if he's been sponsoring any legislation. Here are two measures, each referred to committee.
First is the soberly named First Amendment Restoration Act. It would make three changes in campaign finance law. One: it would relieve people of any obligation to divulge contributions to "electioneering communications," roughly speaking campaign ads for federal candidates run within 60 days of an election or 30 days of a campaign. Two: it would repeal the current rule that corporations and labor unions may not spend their funds on electioneering communications. Three (and it looks like at least the dot-gov version I linked to has a typo; it must mean 441a(a)(7)): under McCain-Feingold, if you contribute to an electioneering communication and your contribution is coordinated with the candidate's campaign, it counts as a contribution to the candidate; the act would repeal that rule.
These changes look technical, and I'm the last person around to think that abstract principles readily decide concrete cases. But I think Bartlett's proposed changes are crummy — yes, that's a legal term of art — and I want to back up to explain why.
If you think of democratic politics as a kind of a market, with votes as dollars and candidates as salesmen hawking themselves and their agendas and hoping to close a sale, you're suffering what I diagnose as market fundamentalism. (And no, you may not defend against the diagnosis by pointing out that the analogy illuminates some matters.) We assign each citizen the inalienable right to cast one vote. An economist might worry about deadweight loss. Why not have the state mail each citizen a coupon that says, "bearer may cast one vote"? Then you could "consume" yours by voting yourself, or you could donate it to Greenpeace or the Liberty Fund, or you could sell it to Ross Perot. Nor do we auction off the right to sit as Representative or Senator or President. Instead of conjuring up market failure, be sweetly obliging — I'm kind of cranky today — and agree that democratic politics isn't a market.
That means we have reasons to worry about the role of money in politics. Campaign finance reform raises many vexing issues — no surprise that the Supreme Court pronouncements on that legislation are sprawling, confusing, and confused — but the impulse to limit the role of money in our politics is an attempt to draw the line between markets and politics. Or, if you like, it's an attempt to insist that as citizens we properly meet as equals, regardless of how rich or poor we happen to be. So too for the impulse to keep corporations and unions out of our political debates. They aren't citizens. They have no standing.
Incidentally, we rightly know the great liberal (and feminist and socialist, that latter of the democratic or anti-statist or market-friendly kind, thank you very much) John Stuart Mill as a passionate defender of free speech. But in thinking about elections, Mill vigorously endorsed severe limits on what wealthy candidates could spend. A while after asking sadly, "Of what avail is the most broadly popular representative system if the electors do not care to choose the best member of parliament, but choose him who will spend most money to be elected?" he insisted, "If the friends of the candidate choose to go to expense for committees and canvassing there are no means of preventing them; but such expenses out of the candidate's own pocket, or any expenses whatever beyond the deposit [for declaring candidacy] of £50 (or £100), should be illegal and punishable." The usually decorous Mill followed that up with a snarling attack on parliamentarians "of both parties" for being eager to ensure that workers not become MPs.
So we have reasons to worry about the sway of money in our politics. We have reasons not to enfranchise corporations and unions. And finally we have reasons to insist on sunshine or transparency for the role money does play. Every one of Representative Bartlett's proposed changes would cut the opposite way. He would let people make secret donations, let corporations and unions run campaign ads, and effectively raise spending limits. Bad ideas one and all, say I.
I can be briefer with his other proposal, though the Citizens' Self-Defense Act is getting far more frenzied, gleeful attention on the internet. I don't really grasp the passionate enthusiasm for guns and access to guns — this has to be a characteristic tone-deafness of the left — but anyway the Act would guarantee our rights to obtain and use firearms
- in defense of self or family against a reasonably perceived threat of imminent and unlawful infliction of serious bodily injury;
- in defense of self or family in the course of the commission by another person of a violent felony against the person or a member of the person's family; and
- in defense of the person's home in the course of the commission of a felony by another person.
1 and 2 are traditional common-law conceptions of the privilege of self-defense, or would be if they sharpened the language about the proportionality of response to the threat you're facing. 3 is way too rough for the same reason.
But here's what's really disturbing. It's hard to see how Congress conceivably could have the constitutional authority to pass this legislation. The best theory I can muster would run this way. State actors — say courts issuing tort awards — are violating people's 2nd amendment rights, and so Congress has the right under section 5 of the 14th amendment to act this way. But as far as I know the 2nd amendment has never been incorporated against the states. And on the Court's post-Boerne scrutiny of Congress's section 5 powers, this act, without a careful legislative record documenting extensive state abuses and without an argument that the federal rule is proportionate and congruent to the state violation, would be clearly unconstitutional even if we assume the amendment is incorporated.
People should be principled about their commitments to federalism. If you invoke states' rights when you don't like federal policy, it's embarrassing to neglect them the moment you get excited about some other policy. And I'd hate to think that much of the right has only been opportunistic about federalism all along.
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January 26, 2005
How Not to Complain About Taxes (III): "I deserve my pretax income"
Anderson on Political Economy, Elizabeth Anderson: January 26, 2005
Today's post is a tribute to F. A. Hayek. I was going to commend Hayek earlier, for nailing the economic case against comprehensive planning, but fellow-blogger Don Herzog beat me to it. This is the third installment in a series of posts on the justification of taxation for social insurance. Instead of launching directly into a positive argument for social insurance, I've been clearing the ground by explaining why certain sorts of arguments against such taxation don't work. The question at stake is whether there are sound arguments for the proposition that individuals have such a strong claim to their property that the state cannot justly tax them for the purpose of funding social insurance. In my first post, I explained why the claim "it's my property" does not constitute a sound argument against taxation. In my second, I explained why claims based on natural property rights don't do so. In this post, I'll explain why the claim "I deserve my property" doesn't do so, and on the way, start to build the positive case for social insurance. Throughout this series, I am presuming the superiority of capitalism as a mode of organizing economic life. So, arguments against taxes that are incompatible with capitalism I take to be refuted for that reason.
The claim "I deserve my income," as applied to an individual's pretax income in free market economies, has considerable intuitive force. If true, it suggests a powerful moral claim against taxation for redistributive purposes, on the intuitively plausible supposition that a just economic order ought to ensure that people get what they morally deserve.
But, however intuitive these claims may be, they are unjustified. In two of his important works of political economy, The Constitution of Liberty (see esp. ch. 6), and Law, Legislation, and Liberty (vol. 2), Hayek explained why free market prices cannot, and should not, track claims of individual moral desert.
1. Let's consider first Hayek's claim that prices in free market capitalism do not give people what they morally deserve. Hayek's deepest economic insight was that the basic function of free market prices is informational. Free market prices send signals to producers as to where their products are most in demand (and to consumers as to the opportunity costs of their options). They reflect the sum total of the inherently dispersed information about the supply and demand of millions of distinct individuals for each product. Free market prices give us our only access to this information, and then only in aggregate form. This is why centralized economic planning is doomed to failure: there is no way to collect individualized supply and demand information in a single mind or planning agency, to use as a basis for setting prices. Free markets alone can effectively respond to this information.
It's a short step from this core insight about prices to their failure to track any coherent notion of moral desert. Claims of desert are essentially backward-looking. They aim to reward people for virtuous conduct that they undertook in the past. Free market prices are essentially forward-looking. Current prices send signals to producers as to where the demand is now, not where the demand was when individual producers decided on their production plans. Capitalism is an inherently dynamic economic system. It responds rapidly to changes in tastes, to new sources of supply, to new substitutes for old products. This is one of capitalism's great virtues. But this responsiveness leads to volatile prices. Consequently, capitalism is constantly pulling the rug out from underneath even the most thoughtful, foresightful, and prudent production plans of individual agents. However virtuous they were, by whatever standard of virtue one can name, individuals cannot count on their virtue being rewarded in the free market. For the function of the market isn't to reward people for past good behavior. It's to direct them toward producing for current demand, regardless of what they did in the past.
This isn't to say that virtue makes no difference to what returns one may expect for one's productive contributions. The exercise of prudence and foresight in laying out one's production and investment plans, and diligence in carrying them out, generally improves one's odds. But sheer dumb luck is also, ineradicably, a prominent factor determining free market returns. And nobody deserves what comes to them by sheer luck.
2. If free market prices don't give people what they morally deserve, should we try to regulate factor prices so that they do track producers' moral deserts? Hayek offered two compelling arguments against this proposal. First, if you fix prices on a backward-looking standard, they will no longer be able to perform their informational function. Producers will produce for what was demanded last quarter, even if it isn't demanded today. This creates enormous waste and generates huge opportunity costs. We'd be much poorer in an economy that worked like this.
One could imagine a way around this problem. Let prices move according to the free market. But set up a government agency to compensate people for their undeserved bad luck, from taxes raised on that part of people's property that they receive on account of their undeserved good luck. This way, prices would retain their informational function. This idea, which I have dubbed "luck egalitarianism," now dominates contemporary egalitarian thinking. I have argued in print that it's a very bad idea ("What is the Point of Equality?," Ethics 109 (1999): 287-337), for numerous reasons. One is that there is no coherent way to determine how much of what people get is due to luck, and how much is truly their responsibility. (To see some of the complexities involved, consider work by Mathias Risse, here and here.) Hayek focused on a more fundamental reason: any attempt to regulate people's rewards according to judgments of how much they morally deserve would destroy liberty. It would involve the state in making detailed, intrusive judgments of how well people used their liberty, and penalize them for not exercising their liberty in the way the state thinks best. This is no way to run a free society.
Hayek was right. It might sound like a compelling idea, to make sure that people receive the income they morally deserve. But orienting the economy around this goal, assuming it is achievable at all (and there are principled doubts about that), would doom us to poverty and serfdom. It would abolish capitalism, along with its chief virtues. It isn't worth the draconian costs.
3. Several implications follow from Hayek's insights into the nature of capitalism.
(a) The claim "I deserve my pretax income" is not generally true. Nor should the basic organization of property rules be based on considerations of moral desert. Hence, claims about desert have no standing in deciding whether taxation for the purpose of funding social insurance is just.
(b) The claim that people rocked by the viccisitudes of the market, or poor people generally, are getting what they deserve is also not generally true. To moralize people's misfortunes in this way is both ignorant and mean. Capitalism continuously and randomly pulls the rug out from under even the most prudent and diligent people. It is in principle impossible for even the most prudent to forsee all the market turns that could undo them. (If it were possible, then efficient socialist planning would be possible, too. But it isn't.)
(c) Capitalist markets are highly dynamic and volatile. This means that at any one time, lots of people are going under. Often, the consequences of this would be catastrophic, absent concerted intervention to avert the outcomes generated by markets. For example, the economist Amartya Sen has documented that sudden shifts in people's incomes (which are often due to market volatility), and not absolute food shortages, are a principal cause of famine.
(d) The volatility of capitalist markets creates a profound and urgent need for insurance, over and above the insurance needs people would have under more stable (but stagnant) economic systems. This need is increased also by the fact that capitalism inspires a love of personal independence, and hence brings about the smaller ("nuclear") family forms that alone are compatible with it. We no longer belong to vast tribes and clans. This sharply reduces the ability of individuals under capitalism to pool risks within families, and limits the claims they can effectively make on nonhousehold (extended) family members for assistance. To avoid or at least ameliorate disaster and disruption, people need to pool the risks of capitalism.
This fact does not yet clinch the case for social insurance--that is, universal, compulsory, government-provided, tax-funded insurance. For all I've said so far, maybe private insurance would do a better job meeting people's needs for insurance in the event of unemployment, disability, loss of a household earner, sickness, and old age. That depends on the relative performance of social and private insurance with respect to each of these events. Or perhaps some kind of mixed system, combining social and private insurance, would be optimal (I'm inclined to this position).
I do think, however, that the arguments I have provided so far go a considerable way towards justifying the view that, whether the insurance provider is public or private, not all individuals can reasonably be expected to pay for their insurance premiums out of their pretax incomes. For the reasons just discussed, pretax incomes provide a morally arbitrary baseline for determining the means within which people may reasonably be expected to live. Equilibrium factor prices may well be below subsistence or a decent life for millions. (This doesn't mean we should seek to institute a morally deserved baseline. My goal is not to ensure that people get what they morally deserve. It's to avoid gratuitous suffering, and to ensure that everyone has effective access, over their whole lifespan, to the means needed for a decent life.) And so far, no argument that people have a moral claim to their pretax incomes, sufficient to preclude taxing it for insurance purposes, has survived critical scrutiny. Certainly, "I deserve it" doesn't.
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January 25, 2005
how ideology works
Don Herzog: January 25, 2005
I'm about to quote Bill O'Reilly. (No, I don't listen to O'Reilly. I picked up this choice exchange on www.mediamatters.org, whose circulation of it produced O'Reilly's heated denunciation of them and the Anti-Defamation League as "the worst element in American society," "despicable, vile human beings — ankle biters." Is this an example of the acute political judgment that wins him air time?) Feeling defensive already? Relax. I happily stipulate that no one reading this blog thinks or feels or talks the way O'Reilly does here.
In fact, that's precisely my topic. I want to think about how O'Reilly's language links up with that of people who actually have precious little in common with him. Okay, ready? Here goes. Don't be squeamish.
The Radio Factor with Bill O'Reilly, 12/3/04, the ever affable Mr. O'Reilly responding to a Jewish caller concerned about Christmas carols and gift exchanges in schools:
All right. Well, what I'm tellin' you, [caller], is I think you're takin' it too seriously. You have a predominantly Christian nation. You have a federal holiday based on the philosopher Jesus. And you don't wanna hear about it? Come on, [caller] — if you are really offended, you gotta go to Israel then. I mean because we live in a country founded on Judeo — and that's your guys' — Christian, that's my guys' philosophy. But overwhelmingly, America is Christian. And the holiday is a federal holiday honoring the philosopher Jesus. So, you don't wanna hear about it? Impossible.
And that is an affront to the majority. You know, the majority can be insulted, too. And that's what this anti-Christmas thing is all about.
Faithful readers may recall facially similar language from Representative Bartlett. But O'Reilly's "Judaeo-Christian" breaks at the hyphen rather more nastily than Bartlett's fumbling effort to be generous and acommodating would. "My guys" are in charge, he instructs the hapless Jew on the phone. We'll suffer you as members — on our terms. Don't like it? Go to Israel. So — whether he meant to or not — O'Reilly's language conjures up the American Jew as rootless cosmopolitan, someone who is ready, or should be ready, to pack his bags and get the hell out if he doesn't like the political rules established by the real members. We've been here before. It isn't pretty.
O'Reilly's language is miles way from the humane and thoughtful work appearing in First Things, for instance, work I routinely disagree with but deeply respect. O'Reilly's language does not circulate in legal circles when we try to figure out the proper boundaries of accommodation in free exercise and establishment clause jurisprudence. And — I'll say it again — it does not circulate among readers of this blog. Then again, it is also much more dignified and plausible than the unquotably vitriolic antiSemitism burbling up from the pond scum in brackish corners of the internet.
In public discussion all this language is circulating, and all of it can and does get jumbled together. So what can happen?
- People with really nasty views can take cover under the shield of people with more polite views.
- People stating more polite views can find their cause advanced by the energy supplied by people with nastier views. The pond scum may rally to people with much more refined and serious views. Maybe strategically: they might think, "well, that's as close as we're going to get to impact on policy." Or maybe unselfconsciously: they might sense, however wrongly, "those guys are really like us, deep down."
- Critics can too easily dismiss the more serious views. Maybe strategically: they might think, "ah, tar and feather the serious people with the views of the nasty ones." Or maybe unselfconsciously: they might think, "oh, that's just a cleaned-up version of the filth spewed out by the pond scum." To pay tribute to prior exchanges on this blog, I might dub this the Coulter-Robertson effect, the one explaining why leftists allegedly can't tell the difference between serious conservatives and strident mouthpieces. Or the Bible-thump effect that allegedly makes secularists scare up some crazed flat-earther every time they encounter the thought that someone else is religious.
You can dream up other grisly dynamics, too, and those dreams will probably turn out to be all too true. Now, sometimes the people advancing views in the jumbled public discussion know perfectly well what they're up to and have bad motives. I think that Lee Atwater's infamous Willie Horton ad really was a malicious effort to "play the race card," which is wholly compatible with saying that furloughing criminals was a real issue. And we're used to enervating debate about who the nasty villains are, with lots of finger-pointing, shouting, and accusations of bad faith. (Though notice too that being oblivious can be another way of becoming blameworthy.)
But forget about finger-pointing. What interests me here is that no one needs to have any bad motives, or even any awareness — no one needs to be the least bit blameworthy — for all these perverse dynamics to kick in. Someone can play the race card, or flirt with centuries-old antiSemitic canards, without meaning to, even while reviling the people who are explicitly doing that. That is even the words of the speaker horrified at such nastiness may get caught up with political sentiments and principles they despise and disavow. For all I know, O'Reilly would be surprised to discover that his dismissive "go to Israel" has the resonances that it does. Did he mean it? If that refers to what philosophers call utterer meaning, roughly the particular content he wishes to convey, I don't know. But I don't much care, either. If the question refers to what philosophers call sentence meaning, roughly what a member of the community will hear in his words, then he isn't and can't be in control of that. Too many phrases, images, and arguments echo through our history and culture in ways that different members of the audience will respond to, wittingly or not. Any of us arguing about politics — and the point I'm making here sprawls right across the left/right divide — can find ourselves in cahoots with repulsive actors, supporting vicious causes.
Since I more recently wrote on equality of opportunity and education, I'll leave you to think about how another O'Reilly tidbit connects up with debates about crummy public schools in the inner cities and the like. Hint: think about the resonance of "lazy," its public and historical resonance that is, regardless of what O'Reilly thought or didn't think he was saying.
The Radio Factor with Bill O'Reilly, 1/13/05, an exchange between our mild-mannered host and economics professor Randy Abelda:
O'REILLY: Come on. The government never gave me anything, madam. I mean, I'm paying an enormous amount of taxes. And, you wanna take more and give it to somebody else who may have not gotten educated 'cause they're lazy. I mean — I resent that —
ALBELDA: Is that why you think people aren't educated? Because they're lazy?
O'REILLY: Most people who don't make any money are not educated because they didn't wanna get educated.
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January 21, 2005
equality of opportunity: three
Don Herzog: January 21, 2005
"What have you done to deserve such advantages? You have taken the trouble to be born — nothing more!" So Figaro expostulates to the Count in Beaumarchais's 1784 play, The Marriage of Figaro. Just eight years later, in his Rights of Man Tom Paine continued his relentless sneering campaign against Burke's conservatism with a memorable pun:
The more aristocracy appeared, the more it was despised; there was a visible imbecility and want of intellects in the majority, a sort of je ne sais quoi, that while it affected to be more than citizen, was less than man. It lost ground from contempt more than from hatred; and was rather jeered at as an ass, than dreaded as a lion. This is the general character of aristocracy, or what are called Nobles or Nobility, or rather No-ability, in all countries.
Americans of the eighteenth and nineteenth century knew they didn't have any titled nobility. But they still wielded "aristocracy" as a pejorative label and a warning; they still feared inherited wealth and privilege. "The earth belongs to the living," insisted Thomas Jefferson, echoing a slogan from the radical Levellers of 17th-century England.
I've been arguing that we should wrest free of the stale contrast between equality of opportunity ("hurray!") and equality of outcome ("boo!"). The "hurray!" and "boo!" are rightly placed. But the contrast glides oh so smoothly over the decisive point. Any defensible conception of equality of opportunity has to include some conception of equality of starting points. And again, "equality" will mean ensuring a floor that's good enough, not somehow ensuring that everyone receives an identical or identically valuable package.
So equality doesn't mean uniformity or homogenization; it isn't the resentful or envious drive to strip the wealthy or talented of their superiority. It's a campaign to open up possibilities for those deprived of them. You don't choose your parents, your genetic inheritance, your place of birth, and so on. I've yet to bump into the imaginary leftist who believes the state must somehow "remedy" all of that. But a familiar model in this country for financing the public schools is indefensible, and the state can and should remedy it.
On its face it's a problem to finance schools from the local property tax base. It means that children lucky enough to be born into prosperous communities can attend great schools, unless of course the locals are singularly stingy about taxes. But no matter what their community thinks, it dooms kids in poor communities to poor schools. Affirmative action years later is a wretched solution to this problem. But every American child is entitled to a decent education, and the decision to publicly finance schools acknowledges that. (A world where the state didn't raise funds for education would consign children to the wealth and benevolence of their parents plus the charitable impulses of others. If equality of opportunity demands a decent education, as I think it does, that world isn't good enough.) Consider the disparity between ritzy suburban schools, with recording studios, Olympic-sized swimming pools, courses in six foreign languages, and plenty of advanced placement courses; and decrepit inner-city schools, with no gym facilities at all, bloated class sizes, impoverished course offerings, and obsolete lab equipment — or no lab equipment at all. Not that the suburban kids should go to worse schools; rather the inner-city kids should go to better ones.
Just over half the budget of Pennsylvania's public schools is raised locally; the state contributes the rest and directs more money to poorer districts. (Here is more detail.) Instead of seeing the dread hand of redistribution, see equality of opportunity at work — and wonder if it's good enough. Philadelphia's Overbrook High posts utterly dismal test results, has been listed as persistently dangerous, is overwhelmingly black and heavily poor, and is mostly known for turning out professional athletes. (Ironically, the school received 35 computers from Lockheed Martin, which was donating them in honor of Philadelphia Eagles touchdowns.) I don't know anything about the school's curriculum or facilities — here are some reforms underway — but that's not why I bring it up. Even in such unpromising settings, students can do great things. With a wonderfully committed coach, Overbrook has won a series of mock trial championships. That doesn't make me think the school is just fine. (Knowing just these scant facts, would you choose to send your child there?) It reminds me that talent and guts are everywhere, and we can't afford to let them languish just because kids are born in poverty. And it's not just that "society" benefits; every one of those kids is entitled to a decent start in life. Schools can't cure all the ills of blighted communities, but they can help. Money and class size aren't everything in running a good school, but it would be simple lunacy to infer that they don't matter.
President Bush's worry about "the soft bigotry of low expectations" is exactly right: in fact it's my favorite phrase of his. I don't know enough about No Child Left Behind to have an informed view on it. (I do know that teachers have reasonable worries about "teaching to the tests," and I sadly remember growing up in New York, which has state-wide Regents examinations, and constantly being told in response to my curious questions, "don't worry about it, it won't be on the Regents." And I do know it's odd to find the conservative right dropping its concerns for federalism and rallying behind a stronger federal presence in this arena.) Accountability and improvement are all to the good, and I've indicated my affection for school choice. But there's more to be done, and room here for more left-right alliances in improving the nation's schools. A crucial piece of this complicated jigsaw puzzle is the common practice of financing schools on local property taxes. It's not the inherited aristocracy Beaumarchais and Paine ridiculed, but it's uncomfortably like it.
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January 20, 2005
Democratic Malaise in US?
Archon Fung: January 20, 2005
In his second inaugural address, our President proclaimed his commitment to spreading democracy abroad,
Across the generations we have proclaimed the imperative of self-government because no one is fit to be a master and no one deserves to be a slave. Advancing these ideals is the mission that created our nation. It is the honorable achievement of our fathers. Now it is the urgent requirement of our nation's security, and the calling of our time.
So it is the policy of the United States to seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in our world.
But when I look out in the world, I see many who recognize that their own democratic institutions fall short of the ideal of self government. They take pains and embark on bold experiments to discover more workable forms of self-government for themselves, rather than attempting to create self-government for others. When I look here, in my own country, I see substantial democratic innovation in civil society organizations at the state and local level, but very little is initiated or even sponsored by government, and almost none of it by the federal government. Why is that?
Why don’t Americans--despite all that has happened--have a palpable sense that our democracy is deficient?
I recently travelled to the Canadian province of British Columbia. There, a randomly selected “citizens assembly” of 160 British Columbians have been deliberating for a year about whether the province should abandon its first-past-the-post winner-take-all election rules in favor of some sort of proportional representation. This group decided that their electoral system should serve three important values -- fairness understood as proportionality; voter choice; and local representation. They decided that the voting system best advancing these values is a version of the Single Transferrable Vote. Their proposal will be subject to a popular referendum in May. If it is wins, it will become the law of the province. Many other Canadian provinces are undergoing similar democratic soul-searching.
To the south, dozens of cities in Latin America have created directly-democratic institutions to make decisions over their public budgets. This so-called “Participatory Budgeting” was made famous by the fifteen year experience of the Workers' Party in Porto Alegre, Brazil. More generally, almost everyone working in the field of development has to include words about participation if they hope to gain the support of international donor agencies.
Across the Atlantic, our European cousins are much concerned about democracy deficits not only at the supra-national level, but also inside nations and in regions as well. These concerns have prompted substantial official and civic experimentation with complex structures of regulatory committees, as well as with more popular devices such as consensus conferences, planning cells, citizen juries, and deliberative polls.
Do you agree that the democratic imagination is much more vital abroad than at home? How have we in the U.S. escaped the impulse for democratic renewal?
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How Not to Complain Against Taxes (II): Against Natural Property Rights
Anderson on Political Economy, Anderson on Taxes, Elizabeth Anderson: January 20, 2005
In a previous post, I argued that the claim "it's mine" does not by itself constitute an argument against taxation. Nothing follows about the legitimacy of taxation from the mere fact that something is one's own property, nor, as Locke's example shows, even from the fact that something is one's own by a natural property right. Several comments and a trackback on that post supposed that I was arguing from the truth of Locke's theory of natural property to my conclusions. This is odd, since I explicitly disavowed theories of natural property rights in that post. My point was only that "it's mine" is no argument against taxes; it's at best a begged question. This of course does not rule out anyone's offering an alternative comprehensive theory of natural property that entails the illegitimacy of taxation, or taxation beyond what the minimal state requires.
Now I'd like to take on the idea of such a comprehensive theory of natural property more directly. In that earlier post, I promised to explain why I reject theories of natural property rights, dropping the teaser that my answer would surprise you. Here I spill the beans: I reject theories of natural property rights because they are incompatible with capitalism. More precisely, they are incompatible with the forms of modern capitalism that have proven so successful in expanding people's opportunities, prosperity, and the scope of cooperation--that is, the forms worth supporting. Far from being the foundation of capitalism, natural property rights, construed as putting constraints on state action, are its bane.
By a theory of natural property rights, I mean a theory that (a) identifies first principles by which individuals may initially own or acquire property without the help of a state; (b) upholds principles of virtually unrestricted voluntary transfer (freedom of contract, gift, and inheritance); and (c) limits the state (if it is to exist at all) to enforcing these strict property rights and whatever obligations arise from unrestricted freedom of contract. Crucially, these rights and obligations may not be abridged, limited, or revised by the state in order to produce various desired consequences. Some natural property rights theorists allow exceptions to these principles at the margins (Nozick, for example, allows that property rights may be abridged to avoid catastrophe). But by and large they see free market capitalism as a spontaneous self-sustaining product of systems of property whose logic lies outside state definitions and social engineering. The great danger to capitalism, on this view, is state "intervention" into a market sphere that runs by its own natural laws.
I think this picture of capitalism is misguided. The forms of capitalism that exemplify its greatest virtues rest on artificial, not natural property formations. The state does not "interfere" in a "natural" capitalistic realm; rather, state action constitutes this realm as distinctively capitalistic. Advanced capitalism requires a vast apparatus of socially engineered institutions to sustain itself. To put some specificity on these claims, I'll argue as follows. (1) Certain types of property rights and rules found in advanced capitalism have no sound basis in "natural" property rights but are nonetheless essential to advanced capitalism. (2) Natural property claims do spontaneously arise independent of state action, but they are incapable of generating the distinctive form of property needed for capitalism--namely, capital. State action is required to turn property into capital, and such action will inevitably, and rightly, abrogate these "natural" claims. (3) A pure system of natural property rights with unrestricted freedom of contract contains inherent tendencies to revert to feudalism if the state does not limit freedom of contract by restricting property transfers from the desperate to the well-endowed.
(1) Advanced forms of capitalism depend on types of property that have no natural foundation.
Consider, for example, the limited liability corporation. In a natural property regime, groups of people contracting together can enjoy no more rights vis-a-vis third parties than what the sum of their individual property rights already gives them. Since individuals do not enjoy any "natural" limitation on their liability, they can't naturally acquire such a limitation just by combining their property with others. Limited liability is justified not because it could arise from a system of natural liberty, but because investment in firms that separate ownership and control will be retarded, and hence overall economic growth will be depressed, if investors don't enjoy it. Limited liability does leave some rightful claimants uncompensated when firms go bust. Capitalism makes up for this in part through generally higher growth (which socializes some of the benefits of this property form). It also partly makes up for this through social insurance schemes that prevent some of the worst costs from being so concentrated as to produce hardship (which socializes some of the costs of this property form). For example, the state bails out pension funds that bankrupt firms owe to their workers.
Intellectual property rights are also both indispensable to capitalism and deeply artificial. They contain two features that, in combination, cannot be rationalized by a theory of natural property: (a) they afford monopoly rights to inventors, and (b) they are temporary. A theory of natural property could reject intellectual property altogether, on the ground that thought, once made public, becomes part of the commons, and no one coerces anyone else in using a valuable idea. Or it could insist that inventors have an absolute and permanent right to their ideas. (This would, for example, grant to the heirs of the inventor of the alphabet the permanent right to determine who is permitted to use it, and how much they must pay for the privilege.) But it is difficult to envision any theory of natural property that could both acknowledge the existence of such rights and insist on their expiration. There is a sound economic justification for a property regime like this, but it isn't "natural."
Many other examples of property rules important to capitalism, but not rationalizable within a theory of natural property could be cited--for example, bankruptcy (which discharges an insolvent debtor's debts, thereby abrogating the "natural" property claims of creditors), the rule against perpetuities (some version of which is needed to ensure that property rights ultimately vest entirely in living people, to prevent the dead hand of the past from permanently weighing down future uses of property), anti-commons rules (which prevent owners from dividing their property into uselessly small bundles), and rules against shareholder oppression (which limit what majority owners can do to undermine minority shareholder interests). Some version or other of these types of artificial property rule are vital for dynamic economies. (I don't pretend to defend the details of the ones currently in force.) Of course, one person's modus ponens is another's modus tollens. One might reject these types of property on the ground that they violate natural property rights. But don't pretend that one's preferred system would still be able to sustain capitalism or preserve its observed advantages.
(2) Natural property systems do not generate the distinctive form of property essential to capitalism, namely, capital.
Natural property exists, in the sense that people do successfully establish private property regimes, based on local conventions, that are independent of and often in opposition to the state. (Like my fellow-blogger Don Herzog, I happily embrace distinctions between state and society!) Indeed, natural property is by far the dominant form of property in the developing world. The great Peruvian economist Hernando de Soto has documented that in major regions of the developing world, 65-85% of housing is extralegal (that is, it consists of squatter settlements). The vast majority of retail markets and mass transportation in these regions also exist outside of the formal sector.
Since natural property systems exist as an empirical reality, and not just in the state-of-nature fantasies of philosophers, we can compare their performance with artificial property systems established by capitalist states. De Soto's verdict is clear: natural property is inferior to artificial property. The people who have only natural property are poor. Moreover, they are not poor because the state actively interferes with their natural property systems. For the most part, developing countries acquiesce in their formation. Rather, they are poor because natural property systems cannot convert property into capital. The distinctive feature of capital is that it has market value to strangers, to people who do not belong to the parochial community in which the property exists. Capital can be sold to strangers and used as collateral on loans. Capital's value rests on the fact that it is the locus of a massive expansion of the scope of cooperation and trust, beyond the face-to-face community, ultimately encompassing the whole world. It is a great engine of cosmopolitanism, which is one reason why I support it.
The natural property theorist might insist that all that natural property lacks is formal recognition by the state, exactly as it has been created by the locals. This ignores the fact that natural property systems are profoundly idiosyncratic. They vary in innumerable details from one locale to another, just as languages vary. And just as language variation puts sand in the gears of cooperation and trust across linguistic groups, variations in natural property conventions impede the conversion of natural property into capital. Strangers are reluctant to buy it, or accept it as collateral, and not just because they lack confidence that their property claim will be enforced (by either the state or the locals) if a dispute arises. They are reluctant also because they literally don't know what they are getting. The local conventions that define and encumber the property are not written down. Even if they were, they are too idiosyncratic in form to enable effective comparison with other parcels of natural property. Without easy comparison with other parcels, natural property lacks fungibility and so lacks a market value to strangers.
When the state grants legal recognition to natural property, as when it issues squatters title to the land they have been occupying extralegally, it incoporates that property into a vast system of artificial rules that are not of local making and that may well contradict the local conventions that previously defined the property. Of course, as Robert Ellickson has shown in his wonderful Order Without Law, the locals remain free to observe the local conventions instead of the formal property rules. But, as his work also shows, those conventions lose their force when strangers, who care little for local opinion, buy the property. This is the price of the conversion of natural property into capital. But the price is worth it. This means that the state is not, and ought not to be, bound to respect natural property.
This is not to say that there cannot be a compelling case at times for the state to formalize natural property. My point is rather that the case cannot be made on the ground that people have a fundamental right to whatever property they have acquired naturally. This can't be the ground, because formalization does not merely recognize the property that was already there, but subjects it to a distinct and often contradictory artificial regime. The case for formalizing natural property--incorporating it into the artificial capitalist regime--is rather that in many cases this is the best way, of the available alternatives, to enable the owners to escape poverty, provide for their needs, and gain prosperity and a wider range of opportunities.
Now here's the rub: those very same grounds also justify, at times, infringing on natural property and instituting new artificial property rights, such as social insurance entitlements, and hence the taxes to support them. The general justification for any property regime rests on its ability to enable, to the highest feasible degree, everyone under it to live a decent life, enjoying dignity, personal independence, freedom from poverty and oppression, a wide range of opportunities, and the effective power to participate in the social and economic life of the community. No one has a right, "natural" or otherwise, to a property regime that in fact deprives others of effective access to such a life, if there is an available alternative property regime that does effectively secure these others such a life. Such alternatives have been found through experience to require measures such as social insurance entitlements and the taxes needed to support them.
(3) A pure system of freedom of contract, in which all property is fully alienable, tends to degenerate to feudalism. Capitalism therefore needs restrictions on freedom of contract.
Feudalism is based on the principle that private property in land confers political power over whoever is on the land. One's landlord is one's lord. Feudalism permits the conversion of property over things into subjection over people. Theories of natural property rights, which suppose that people have property in themselves, and that all property is alienable in contracts, permit the same conversion. If the state places no limits on such conversions, then, given the volatile nature of capitalism, many people will be pushed into a poor bargaining position. In such a position, many will sell their personal independence for subsistence. Thus arise oppressive forms of contract feudalism such as those into slavery, bonded labor, and debt peonage. Thus arose company towns in the U.S., which issued scrip instead of cash wages to their workers (redeemable only in company-owned stores), required workers to rent company-owned houses (with leases enforcing what the company deemed a proper lifestyle), and crowned the firm owner as mayor for life (without those pesky elections). Thus arise modern factories in quasi-capitalistic China today, which keep their workers locked up in factory-owned dormitories, forbidden by contract to wander outside, lest they hire out their labor (enhanced by the training provided by the firm) to competitors.
Theories of natural property misidentify the objection to feudalism. They suppose that what made feudalism objectionable is that the landlord's political power lacked the consent of the people. On this view, contractual forms of feudalism, such as debt peonage and company towns, are legitimate. But if fedualism is objectionable, it is not for lack of consent. As Hume observed, the people did consent to the rule of their lords. Their consent, however, had no legitimating force, because they had no reasonable alternative:
Can we seriously say, that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives, from day to day, by the small wages which he acquires? We may as well assert that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean and perish, the moment he leaves her.
The same objection applies to contemporary forms of contractual feudalism. But even this objection does not get to the core of the issue, which is not consent, but rather the content of the relationship. Feudalism, whether contractual or not, is objectionable because it constitutes a relation of personal subjection, in which one party enjoys arbitrary power over another. Because personal independence is essential for liberty, it should be considered an inalienable right.
This entails limitations on freedom of contract that go well beyond the abolition of contract slavery, debt peonage, and company towns. It justifies legal regulation of rental contracts, for instance, so as to guarantee tenants a right to privacy against unannounced or too-frequent invasions by their landlord. It justifies laws against quid-pro-quo sexual harassment. (In light of this analysis, quid-pro-quo sexual harassment should not be viewed as any ordinary contractual term, but as contract feudalism's analogue to the droit du seigneur, now applied directly to the vassals, whether male or female, rather than their wives.) It even justifies laws restricting corporate contributions to politicians. Without such restraints on contract, we don't get capitalism. We get contract feudalism. Capitalism can't survive as a distinctive formation without restrictions on the conversion of property into political power.
Under the capitalist system we have today, people's claims to property arise from a vast artificial system that has no natural foundation, and that rightly contradicts many natural property claims. The system couldn't be capitalistic if it didn't. Within such a system, people have no property claim against other parts of the artificial property system, including social insurance entitlements and the taxation needed to support it. Since their prosperity arises from artificial property, no less than the economic security of those receiving social insurance entitlements does, their property claims enjoy no superior or prior status that could constrain the state's constitution of new entitlements and taxes that advance the proper goal of any property system--effectively securing a decent life for all.
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January 19, 2005
A testosterone cloud?
Lynn Sanders: January 19, 2005
I don't know if it is possible to discuss Harvard President Summers' remarks discreetly, but I'll try.
First, what Summers I think did was say that any attempt to explain the lower levels of high achieving women academics in math, science and engineering should include, as one of the hypotheses tested, the possibility that their biology disadvantages women. He suggested too that sex discrimination should be another hypothesis. The storm of controversy has thus developed around the question of whether biological differences should ever be introduced in social scientific explanations for social inequality: whether this hypothesis should even be considered.
Some would say that intellectual freedom demands that no explanation ever be ruled out, no matter how offensive or preposterous it might seem. Summers was just being a scientist, we could say, brainstorming about hypotheses to test. Commenting on the "intellectual tsunami" that he has provoked, we might defend him by saying, science demands that any hypothesis be available for consideration.
I see in this cloud of controversy a connection to the long discussion at what's up at the universities.
I know there may be a lot of disagreement about this, but from where I sit, in a political science department, it seems that there's very little reluctance to consider claims about the social consequences of biological difference. That is, it is not as if this sort of hypothesis, however provocative or offensive it is, is suppressed. Maybe that's because here at the University of Virginia, there are a lot of political conservatives in the social sciences. So this fall, here in Charlottesville, social scientific discourse included the entertainment of the hypothesis that women are naturally better equipped for childcare because they are less disturbed than men are by the smell of a baby's diapers. (Click here for a less comic and more balanced rendition of the work generating this discussion.)
Further, in an odd replaying of Betty Friedan's attempt to address "the problem that has no name," a number of my colleagues are currently explaining the malaise they see among young women as a product of feminism's suppression of natural feminine inclinations. That is, nature drives women to nuture, but feminism, distorting nature, has pushed young women to seek achievement and made them unhappy. (For whatever it's worth, if you don't like the way that contemporary culture turns every problem into one that can be treated by therapy, I think you have to go after this attempt to minister to young women too.) Anyway, my point here is not to engage this claim on the merits, but simply to point out that from this particular corner of the academy, the idea that biologically based sex differences explain social outcomes seems to be getting plenty of play.
Indeed, it seems to me - I may be wrong on this, I emphasize that this is only my impression - that we've arrived at a(nother) cultural moment when biological factors seem quite prevalent as explanations for various social phenomena, from low numbers of women mathematicians to terrorism to conflict resolution to homosexuality. Of course all of these problems and their associated explanations differ widely. But again, the point is, the social scientific academy seems quite willing in general to consider hypotheses about biological difference.
Biological explanations that come from the right, especially to explain social inequality, are infamous, really notorious, perhaps unfairly so. Introducing natural difference to explain inequality is not precisely the same thing as justifying inequality, but it seems perilously close to many observers, and thus generates the kind of controversy surrounding Summers now.
But though the right seems to have a premium on notorious biological explanations - the Bell Curve comes to mind - clearly this sort of argument is not the exclusive preserve of the right. One area of political rhetoric on the left where claims about nature have powerful hold is, of course, claims by some gay people about the origins of their sexual preferences. On a different topic, I see a resonance between some contemporary claims made by social scientists about the worrisome effects of testosterone, and some radical feminism from a few decades ago. Both seem to agree that men, left to their own devices (that is, not married or otherwise disciplined) will follow their biological drive to rampage. (Here's a perverse observation about common ground: I suspect we could find a version of the suggestion that too much testosterone is a recipe for social and political disaster, that would offend virtually everyone.)
On that note, I think it would be a good exercise for all of us, left and right, to think carefully about both those instances when explanations based in biological difference seem appealing and intuitively correct to us and, even more important, when they offend us. For, again, there should be something here to offend just about everyone. As much as our natural propensities sometimes excuse us, no one wants to be the captive of her nature, and certainly not of anyone else's impression of what that nature is or what it implies or demands.
I'd like to suggest for discussion the idea that there might be something especially dangerous or incendiary about biological explanations, that intellectually, they might be a little like playing with fire. I'm decidedly not saying we should never make them, or that they should always, automatically, be ruled out. But I'd like us to address how very slippery they are. Perhaps it is some remote effect of a political culture based in claims about natural political rights, but clearly in the United States attributions about biological differences have occasionally gone wildly awry. Here I point again to the work of University of Virginia colleagues.
In order to ward off the simplistic attribution to me that I think everything is social construction, and by implication we can engineer social solutions to any biological givens we don't like, let me say simply: I don't. I think there is a complicated and fascinating relationship between our biology, our hormones especially, and our physical and mental capacities.
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January 18, 2005
legislating an academic bill of rights
Don Herzog: January 18, 2005
A while ago, David V. posted a piece on the Academic Bill of Rights. That was the first I'd heard of it. (Yes, I need to get out more.) Here I want to say something about what's troubling in legislatures adopting the bill of rights -- assuming, that is, they really mean to assign legal rights and legal remedies to aggrieved parties.
A straightforward question about policy is, what's the right rule? And the ideals of the academic bill of rights are mostly admirable. My own views differ in part: for instance, I wouldn't require that each and every course cover all competing views. But rather than pick away at what might be objectionable about the substantive policies the bill recommends, I want to focus on another question, or set of questions, which we sometimes underplay. Who should decide? Who should be permitted to revisit the initial decision? What considerations would justify overriding it? Here we need to think about institutional competence, incentives, and downside risk.
I don't doubt that many professors brandish "academic freedom" as a club, to oppose more or less anything they dislike. But it's a dreadful idea to have legislatures or bureaucrats enforce the academic bill of rights; it's a classic invasion of academic freedom, understood as the right of academic institutions to govern themselves. If there's a controversy in or about a biology class or a comparative literature seminar, I don't trust even well-intentioned legislators or functionaries to get it right. I worry that legislators aren't competent to assess the issues in biology or literature. I worry too about the incentives of legislators. Even as they pay lip service to the ideals of enquiry, they will be tempted to grandstand for their constituents by finding targets to pillory and others to applaud for illicitly political reasons of their own. And so I really worry about the downside risks. If you want a community of academics and students to be able to follow arguments wherever they may lead, to be willing to explore dangerous and forbidden ground, you don't want state functionaries peering over their shoulders. The mere existence of a legal charter in the background would chill free speech.
David Horowitz misses the point in responding to a query about teaching evolution. He says, rightly, that if religious students are offended, "that's their problem." But he goes on to say,
What is the harm in mentioning the design theorists, particularly the works of scientists like Behe challenging evolutionary theory? In fact, this would be quite educational and would not impact the professor's ability to teach evolutionary theory just as he had before.
The question is not just, is it a good idea to teach intelligent design or creationism in biology? The question is also, who gets to decide? Suppose the biologists think it's a bad idea. (They usually do.) That may be for good reasons: with their expert knowledge of biology, they may think intelligent design is a hopeless theory, or that it departs so far from the criteria for scientific explanation that it doesn't even qualify as biology. That may be for bad reasons: they may be atheists hellbent on propagandizing their students. Yes, I can imagine the possible world in which the biologists act for bad reasons and the legislators, somehow more discerning about biology, force them to reverse the call and get it right. But it seems extravagantly unlikely, and again adopting the rules that would enable that would license abuse and chill discussion. In comments on a bill discussed in Colorado, the American Association of University Professors sees the point clearly. (Here's a response from Horowitz, who has also repeatedly disavowed any interest in having outside authorities enforce the provisions of the bill.)
But couldn't legislatures adopt the bill without grabbing powers to enforce it? Sure. They could even act without adopting it: they could hold hearings and listen to complaints, as the Colorado legislature recently did. Sunshine and publicity? Maybe -- though I like those principles better when the public is scrutinizing the government than when the government is scrutinizing us -- but also the veiled threat of action: no surprise that the sponsor of the legislation agreed to drop it once universities agreed to sign a "memorandum of understanding" apparently worked out in negotiations with the state. The memo, signed by university presidents and a state representative, says, "While the State of Colorado has a legitimate oversight role in state-sponsored higher education, the individual institutions and their governing bodies are in the best position to implement policies to respect the rights of students and faculty." It also says, " We will have future discussions to share ideas and perspectives on a range of issues to ensure the campus environment is open and inviting to students of all political viewpoints." This sort of thing could go well or badly; time will tell. But you don't have to be paranoid to be concerned.
Or legislatures could tinker with budget allocations to public universities. (And most private universities collect plenty of government grants, too.) On 9/6/02, the Chronicle of Higher Education reported on various legislative efforts. Three excerpts:
Last month, members of the Appropriations Committee of the North Carolina House of Representatives voted to use the power of the state budget to block the assignment of a book to all freshmen and transfer students at the University of North Carolina at Chapel Hill: Approaching the Qur'an: The Early Revelations (White Cloud Press, 1999), by Michael Sells, a professor of religion at Haverford College. Denying public funds to the reading program unless "all other known religions were offered in an equal or incremental way," they stipulated that their prohibition "is not intended to interfere with academic freedom, but to ensure that all religions are taught in a nondiscriminatory fashion."
lawmakers in Minnesota and Missouri responded to pedophilia scandals by taking swipes at university budgets. In April, a Minnesota legislator proposed removing financial support from the University of Minnesota Press for its publication of Harmful to Minors: The Perils of Protecting Children From Sex, by Judith Levine.
More recently, the University of Missouri System's appropriation was docked some $150,000 in reaction to the decision by the director of the public-television station on the Columbia campus to prevent personnel from wearing flag pins on camera, and in reaction to the work of Harris Mirkin, a professor on the Kansas City campus. In a letter to the University of Missouri's president, Manuel Pacheco, the instigating legislator worried about Professor Mirkin's "thought patterns" in writing "The Pattern of Sexual Politics: Feminism, Homosexuality, and Pedophilia."
Again, the question is not just whether UNC or the University of Minnesota Press or the public TV director or Mirkin did something sensible. (If I thought UNC was proselytizing for Islam, or for that matter ridiculing it, I'd be opposed. But that's awfully hard to imagine. I suppose they were asking their students to learn something about Islam, to be better positioned to understand competing interpretations of jihad and the like, and that's all to the good. I don't know anything about the other examples.) The question is who's properly entitled to review the decision. When budgets are tight, it's worrisome for the government to open and close the purse strings in response to particular acts. It's not that universities are magically entitled to suck away at the public fisc. It's that if we've already decided to allocate them funds, this is an illicit ground on which to restrict them. It's just another way of invading the autonomy of the university to make intellectual decisions.
A version of the Academic Bill of Rights, with minor editorial changes and a suitably solemn sprinkling of Whereases, was introduced into the US House of Representatives and sent off to the House Committee on Education and the Workforce on 10/30/'03. As far as I know it still languishes in committee. Happily, the version incorporated this language from the academic bill of rights: "nor should the legislature impose any ... orthodoxy through its control of the university budget." Yeah, but what about imposing their own version of diversity?
He who pays the piper calls the tune? If that means the state is entitled to attach whatever conditions it likes, it sounds like the market fundamentalism I vigorously reject. (Constitutional law rejects it too, though the issues surrounding unconstitutional conditions and subsidies in first amendment jurisprudence are difficult.) There's lots more going on here than a contractual exchange and purchase of services. (Students pay tuition, but they can't buy good grades. We don't judge how good scholarship is by seeing how many copies it sells, either.) If it means that inevitably the state will end up doing whatever it likes, I don't believe it. There's a real political battle, and so far Horowitz is mostly losing. And even though I insist on one state/society distinction after another on this blog, despite being told repeatedly by commenters that the left never does that, on this issue it's (part of) the right that wants the state to cross over the state/society line and restructure things.
Finally, legislatures could simply adopt resolutions exhorting universities to respect the principles of academic freedom. Legislatures adopt such resolutions all the time. (I don't know if there's an official National Pickle Week, but there might as well be.) Indeed, the same day the House referred the resolution on the Academic Bill of Rights to committee, they also referred one congratulating my old dean on becoming the president of Cornell. Given how ordinary such legislative exhortation is, I'm not inclined to fret too much about it as long as it's toothless. Make that, as long as it's gummy and slobbering.
As I stated last week, there are problems with the universities. But asking legislatures to intervene is about as sensible as asking them to respond to allegations of medical malpractice by overseeing the neurosurgeons. "No, Doctor, pass that laser over to me, please." Gulp.
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January 16, 2005
Media policy and the first amendment
C. Edwin Baker: January 16, 2005
My earlier posting, corrupting the press, claimed that the government paying Williams to present the government’s policies as representing Williams own views violated the first amendment. I want to make two further observations, one generally about media policy and the other about the premises of the first amendment interpretation that I offered. First, as long as the left believes in people it must believe that part of the responsibility for the stupidity of electoral results reflects the failure of the media to provide a proper background knowledge among the portion of the public that votes contrary to its own (or any other legitimate) interest. But this failure is reasonably predictable given the existing legally-created structure of the media and media markets. If both these points are right, then structural media policy matters ought to be near the top of any progressive legislative agenda.
Second, the first amendment view that I offered depends on a controversial but vitally important interpretative choice. The argument depends on seeing the press clause as having a different role than protection of individual expressive freedom implicit in freedom of speech. Instead, the argument sees the press clause as protecting an institution and protecting it because of its instrumental connection with, contribution to, democracy, both cultural and political. This view treats the press as rights bearers not in its own right but as rights bearers to the extent the particular right furthers the media’s instrumental constitutional role. In contrast, conservative groups are increasingly reading the guarantee of press freedom as intended to protect the corporate media entities as rights bearers in their own right. The first view is illustrated by protecting reporter’s confidential sources or the institutional integrity of the press that the government violated with its payments to Armstrong Williams. In contrast, various academics, lawyers, and some times courts (especially the D.C. Circuit) have been adopting the second view – the press as rights bearers in their own behalf. This makes little sense in normative (or legal) theory. A press entity is not an morally inviolate person but rather a legally structured collection of people; institutions or legal structures can only have normative value to the extent they contributes to human values. Restrictions on media ownership concentration might have thought to be constitutionally required or more likely, as Justice Black argued, constitutionally permissible as means to increase the likelihood that the press will serve its democratic role. Nevertheless, the conservatives (courts and academics) adopting the second view of press freedom have been concluding that restrictions on ownership concentration are themselves constitutional abridgments of press entities’ right to speak to as many people as it can. This increasing sway of this conception of press freedomis a real possibility. It amounts to threat not only to sound media policy but to democratic culture.
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corrupting the press: the Williams case
C. Edwin Baker: January 16, 2005
The Department of Education reportedly paid conservative broadcast commentator and talk show host Armstrong Williams $240,000 not only to run two government advertisements on his show but also to have Williams himself regularly comment favorably on the government’s "No Child Left Behind" program and to provide government officials access as guests to his program. Whatever one thinks of the paid ads as policy, they are not objectionable on principle. The government has long spent hundreds of millions of dollars on providing press releases, operating its own media, and directly paying for advertisements – like its army recruiting ads.
The same cannot be said for the payment to Williams to plug the governments programs in his role as a media commentator. This practice strikes at the heart of a free and independent press. The central claim of a free and independent press is that its presentations represent its own views of the information and opinion the public should receive. It is to protect this independence that the press receives constitutional protection.
Former Supreme Court Justice Potter Stewart explained the guarantee of freedom of the press as a "structural provision" to guarantee the Fourth Estate "institutional autonomy" so that the press would not be impaired in providing "organized, expert scrutiny of government." Outsiders’ payments to get the press to present the outsider’s views as if they represent the independent judgments of the press impairs the institutional integrity of the press. The payments not merely blur lines but subvert the press’s constitutionally contemplated role as an independent watchdog of government and of the powerful.
Of course, either private or government intrusion can threaten this integrity. But as Justice Hugo Black famously argued, "It would be strange indeed if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. . . . Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests."
Congress has agreed. In 1912, it enacted legislation that normally requires newspapers and other periodicals to identify as advertising any content for which it is paid to publish. Statutes and the FCC have imposed virtually identical requirement on broadcasters and cable operators beginning in the late 1950s. The goal is not to prevent private interests from getting their message out or to prevent the media from being a conduit. Rather, by requiring these paid messages be identified as advertising, the laws help assure the public that the press’s apparently non-advertising messages actually represent the media’s independent judgment that its presentations have merit and are worthy of notice.
Armstrong Williams may have violated these laws. However, independent of these laws, when the threat to press integrity comes not from private power but from the government, constitutional principles are also at stake. The Constitution operates when government is not the solution but the problem. Of course, one branch may try to stop abuse by another branch. Congress, for example, could protect the confidentially of reporters’ sources from intrusion by the executive branch and the courts on the ground that forced disclosure undermines integrity of the press. Likewise, Congress arguably tried to protect against government payments such as those to Williams that undermine the press’s autonomy, for example, with laws prohibiting certain forms of propaganda.
The central principle of civil liberties is that the means by which the government pursues proper aims must themselves be proper. The government can have vital goals but their pursuit by torture abroad, illegal searches and seizures at home, uncompensated taking of property, or kangaroo juries is impermissible. Likewise, the government can try to convince the public but not by censoring contrary views. More subtly, the government cannot pursue its advocacy goals by means that undermine the integrity of a free and independent press.
Just as government should protect the press from objectionable uses of private power, the Constitution should protect the press against abuse of governmental power. One can hope and demand that the executive will be sensitive to the civil libertarians’ demand that it use proper means, here, proper methods of trying to convince the public of the wisdom of its policies. And one can hope and demand that Congress will require the executive to use proper methods.
Still, I agree with Justice Stewart that our constitution prohibits, and that we should be thankful that it prohibits, government action that undermines the institutional integrity of the press. It does this when it pays elements of the press to present the government’s views not as the government’s view but as the press’s own view. In other words, the Department of Education’s payment to Williams to present their view as his – even if they happen also to be his view – should be understood to violate the First Amendment.
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January 14, 2005
what's up at the universities?
Don Herzog: January 14, 2005
Breaking news from CBN, 11/16/'04:
PAT ROBERTSON: With us now to talk about what seems to be the nonsense that is permeating many of our institutions of higher learning is Dr. Jim Black. He is a distinguished scholar and author of many books. His recent book is called Freefall of the American University. Jim, good to have you here.
JIM BLACK: Thank you. My pleasure to be here.
ROBERTSON: Free fall? That means free fall, nothing catching it.BLACK: Right. I think we are in that state, Pat. It may be a shocking word to use, but, in fact, universities have been going downhill for the past 30 years. It started in the 1960s, but in the 1970s it went underground. We thought that when the riots ended, that perhaps the dangers went away. But the dangers are now worse, because they are now ideological dangers and philosophical dangers, and ideas that crept in, especially from France. Things like postmodernism and moral relativism. Now it has seeped into every course, and in every curriculum in the university campuses.
ROBERTSON: What are they teaching at these secular universities? I was watching a couple of interviews with Tom Wolfe, who’s written a book essentially on the sexual morality and other things about the current crop of college students. What are they teaching?
BLACK: Well, basically, what they are not teaching are the things you and I learned at college. They are not teaching freshman English nor American history, nor basic mathematics and science. They are teaching radical courses about sexuality, and benign courses on vampires and the undead. That is actually the name of one course.
Meanwhile, back on planet earth, the universities I know are still teaching freshman English and American history, math and science. (You can check out the University of Michigan's liberal arts offerings here.) And I don't think the baleful emanations of postmodernism and moral relativism have penetrated, oh, the courses on introductory astrophysics and boundary value problems for partial differential equations.
Even though I don't think CBN should be peddling arrant nonsense, I don't mean to suggest that everything going on in American universities is beyond reproach. There are plenty of problems, including some that the broader public has been less interested in: the recent report on plagiarism by academics is horrifying, and I'm much troubled by the increasing use of a two-tiered faculty, with lower-paid lecturers doing lots of teaching. A demurrer: I don't study American universities. On these issues, I'm a native, not an anthropologist. So I am no position to assess how pervasive any problems are. I've taught undergraduates, graduate students, and law students for over 20 years now; I opportunistically compare notes with colleagues elsewhere and pick up the occasional horror story making the rounds, like the one Marinewife pointed me toward. For now, here are one professor's principles, very bluntly stated -- I'm happy to refine them in response to comments, also to think about your criticisms -- about what's appropriate.
May professors take political positions in the classroom? Sure, if it's relevant to the material. (Math profs shouldn't be taking time out to denounce or endorse the Bush administration for the same reason they shouldn't be fondly recalling an Ornette Coleman concert or telling stories about their cute preschoolers. They should be teaching math.) Do they then need to permit -- to invite -- critical discussion of their views? Do they need to permit -- to invite -- pointed disagreement? You bet. When I teach a seminar, I sometimes tell the students what I think and why I think it, once in a while to launch a topic, usually midstream. Then I throw things back to them, and intercede occasionally. (And sometimes, especially when a flaccid consensus is emerging, I lie about what I believe, which is more effective than saying, "Suppose someone were to say...," though I do that too.) When I teach large lecture courses, the kind where the students just sit and take notes, I don't take politically controversial stands: they have no chance to talk back. Then again, I bet my colleagues in economics spend lots of time touting free markets, and critics of mainstream neoclassical approaches -- Austrians, radical political economists, and so on -- are underrepresented in and out of the classroom. And I don't think economics classes should always start over from ground zero to consider fundamental alternatives.
May professors silence or sneer at some positions? I think so, though there's a reasonable case on the other side. I once had an undergraduate in American political thought who wanted to explain, at great and