Originalism in Interpreting Committee Results

Kevin Drum is involved in a discussion over "originalism" in interpreting the constitution, on which I've commented, but will expand here.

As a bureaucrat I've been in many meetings, some of which were committees, some just work groups. A minority of meetings had some sort of product representing the consensus of the members. Typically the mere fact there was a meeting meant that some people had strong feelings and we needed to be inclusive. So there's a parallel to the Constitution making process. Some of the meetings were of peers, some were with a decision-making authority.

What happened when issues arose after the meeting? The way I remember it, we seem to have wavered between two rules of interpretation. At one extreme we adhered to strict originalism, particularly so when it was a meeting with a decision maker who wasn't in the room when we debated interpretation. The issue was what we thought the decider had meant and intended. Ordinarily if that made sense, we went with original intent. But if new factors had arisen we'd often try for a new meeting (i.e., a process of amending the original result). Sometimes, though, we'd decide we could read the mind of the decider, that today he or she would decide X, even though the original intent might say Y.

Toward the other extreme, particularly in the wake of a meeting of peers, the question was whether the issue was such we, as a subset of the meeting, felt comfortable deciding it or whether the uncertainty was so great and the importance so crucial that it was worth the hassle of reconvening a meeting.

Seems to me the same applies to the Constitution. Take one example raised in the comments on Kevin's blog--the Lousiana Purchase. While Jefferson wasn't in the Constitutional Convention, and had many doubts about the Constitution and how to interpret it, he does count as a "Founding Father". In 1803 the LAP(urchase) fell into his lap. He recognized that buying it would stretch the Constitution beyond what he was comfortable with. But the practicalities were that he couldn't afford the time required by the amendment process and enough of the elite agreed with the need for LAP to get the treaty through the Senate. Presumably, the same elite would and could have pushed through an enabling amendment, if time had permitted.

So I view "originalism", "legal realism" (the idea that the Court follows the election returns and the power elite), "critical realism" and all the other theories as make-work for lawyers. The reality is that SCOTUS can and will make decisions they can get away with, based on the reasons that make sense to them. There's no magic rule, except what works.

One of the problems an originalist runs into is that illustrated above in the reference to the split between Scalia and Thomas. It seems that Thomas might well say that we should give back the Louisiana Purchase, because he applies originalism to the original document. Scalia seems a bit more apt to say while originalism might lead me to position A, 202 years of history makes me disregard the original intent in favor of pragmatism.

I'm always reminded of committees I've participated in. We don't reach an agreement on how our work product will be interpreted. In my experience the question of interpretation is answered by wavering between "originalism" and "avoiding stinks"--the latter saying: if no one with a concern in the issue will raise a real big stink, we'll all quietly change the committee's work. Seems to me that's the way the Constitution has operated. The Federalists didn't make a big enough stink about the LA Purchase to void the treaty, so we changed the Constitution.

Treason and Daniel Pipes

Daniel Pipes is quoted on the History News Network: "This absence points to a deeper reality: the crime of treason is now as defunct as blue laws, prohibition of alcohol, or laws banning miscegenation. I predict that, short of radical changes, no Western state will again prosecute its citizens for treason."

I think he's right. We've globalized opinion, so everyone now is competing in the global marketplace of ideas. The Sopranos may still believe in death as the punishment for treason, but the rest of us don't.

Primate Gamblers

MSNBC reports on a study tending to show that some monkeys will gamble more than makes sense--apparently gambling is rewarding.

"'It seemed very, very similar to the experience of people who are compulsive gamblers,' Platt points out. 'While it's always dangerous to anthropomorphize, it seemed as if these monkeys got a high out of getting a big reward that obliterated any memory of all the losses that they would experience following that big reward.'"

I've always thought people were dimorphic--there are the gamblers and the nongamblers--and this has evolutionary advantages. If we were all sticks-in-the-mud, we'd have no progress; if we were all gamblers, we'd destroy ourselves. So I'm looking for future studies that show the study is wrong. Maybe the scientists just created a monkey fad, similar to hula hoops or chlorophyll. Maybe it's true what Lincoln almost said: you can fool all of the monkeys some of the time, you can fool some of the monkeys all of the time, but you can't fool all of the monkeys all the time.

FBI and AIPAC--Volokh

First David Bernstein then Orin Kerr at the Volokh Conspiracy commented on the case of AIPAC staffers being charged with receiving classified information from a DOD staffer. Bernstein passed on allegations that the FBI agents were asking bad questions (tending to show anti-Semitism), while Kerr questions the piece:

"As best I can tell, the only real factual claim in the piece is that 'strange questions' were being asked during the investigation. The piece doesn't say who was asking the alleged strange questions, however, or two whom they were addressed. In addition, the two specific questions mentioned don't sound to me like something an FBI agent would ask (especially the second question). David suggests that the asking of such questions wouldn't surprise him because some anti-Semitic views are popular in 'many 'intellectual' circles,' but I don't think such circles are generally thought to include the Federal Bureau of Investigation.
"

My feelings on the case--from the papers it sounds like Washington's iron triangle of lobbyists and bureaucrats operating as usual, that there seems to have been a violation of law, that the case is overblown, except as a warning shot to people in similar situations to remember classification rules, and that the AIPAC side is doing what everyone does who's caught with their hand in the cookie jar--yell "police brutality" (i.e., misconduct). The last reflects my normal tendency to go with the authorities in most cases.

However, today's Post shows the limits of Kerr's logic. Would a police detective, who's investigating a murder with a suspect would continue blithely on after the suspect asked for an attorney. I would have said "probably not"--thinking Miranda had impacted police behavior. Tell me that the interview is being videotaped and I'd say: "surely not."

I'd be wrong. See this piece in the Post. So, Orin Kerr and I should remember it is possible to overestimate the common sense of people, even PG detectives and FBI age. And maybe we should consider requiring all interviews to be recorded--the technology is there, why shouldn't we use it?

The Utility Curve of Visiting Patients

I've still got my head in the hospital. And I know just enough about economics to be a total idiot in it. But it strikes me that visiting a patient in a hospital can be examined as an exchange problem (probably not the correct term for what I'm trying to do)--the costs and benefits and how they change over time.

The patient gains from the visit--a break from the boredom, knowledge that someone cares enough to take the trouble, a chance to learn news from the broader world, reaffirmation of family and friendship ties. Note that most of these benefits don't decline in value over a succession of visits. The patient seldom has costs, assuming he is fit enough to receive visitors. (I may be jumping to conclusions--a proud patient can suffer from being seen as incapacitated. That cost may decrease as the patient becomes adjusted to the new role.)

What does the visitor gain from the visit?

The visitor learns the status of the patient, something difficult to assess over the phone. The visitor probably can't learn much news from the patient, except to the extent you can assess what you might face when and if you become a patient. My sense is that the visitor experiences a greater rate of diminishing returns than does the patient. The visitor benefits from showing he's a good person who conforms to social norms. But the sense of self-approbation can decline rapidly.

The visitor has significant costs--a visit is a distraction from the daily routine, which economists seem to assume is a stable balance between costs and benefits.

All of this would suggest that visits should decrease over time.

Cingular Silos

I've been late coming to cellphones, but I was investigating them on my recent trip. My sister has a Cingular pay-as-you-go plan, and I was asking about moving her to a family plan with me. In doing so I seem to have run into two Cingular "silos". (The information technology world sometimes uses "silos" to designate data bases (and associated processes) that don't interface (see this link). )

The salesperson said that we couldn't move the phone number from the pay-as-you-go plan over to a family plan because the plans were on separate servers and separate towers. That's not a reason; it's a description. (It might reflect a corporate takeover in the past--mergers and takeovers are a good way to accumulate lots of silos. A test of the management of the company is whether they are able to merge silos or decide to do away with one set altogether.) Cingular may have decided it wasn't worthwhile to enable such changes, or they may not have had the time to do so.

He also said that he couldn't sell me a Virginia area code from upstate New York; he was limited to his territory. Sales management may have decided it's simplest to run their organization this way. Certainly my request was probably rare. (But how about parents who buy their kids phones for college--don't they have to deal with different area codes? Or does the question reveal how far out of it I am--do most kids get a cell phone when they graduate from elementary school?) But good organizations are flexible.

These two silos won't keep me from going Cingular, but they're worth remembering when we and Congress criticize the FBI bureaucrats for their own silos.

Setting Limits on Tolerance

Eugene Volokh has done a paper on slippery slopes, on which I aim to comment one day. But Charles Krauthammer yesterday did a column, Setting Limits on Tolerance, in which he said this:

"Call it situational libertarianism: Liberties should be as unlimited as possible -- unless and until there arises a real threat to the open society. Neo-Nazis are pathetic losers. Why curtail civil liberties to stop them? But when a real threat -- such as jihadism -- arises, a liberal democratic society must deploy every resource, including the repressive powers of the state, to deter and defeat those who would abolish liberal democracy.

Civil libertarians go crazy when you make this argument. Beware the slippery slope, they warn. You start with a snoop in a library, and you end up with Big Brother in your living room.

The problem with this argument is that it is refuted by American history. There is no slippery slope, only a shifting line between liberty and security that responds to existential threats."

I hope to start a dialog between the two conservative/libertarian types, particularly given Volokh's post today on First Amendment rights on which I commented. J.S.Mills observed somewhere that it's easy to be tolerant of those obviously in error and too weak to pose a threat. The test, he thought, was when your opponent was formidable.

I suspect Krauthammer is right as a matter of history--we do waver back and forth on the bounds of tolerance. Volokh may be right that as a matter of intellectual rigor and honesty, there should be a slippery slope. But people are neither rigorous nor honest.

Specialization, Communication, and Data in Medicine

In the first NYTimes article on modern medicine (early this week, but I'm too lazy and too far behind to check), they said the outcome for patients with no personal physician going into an illness was far worse than for patients with a physician. And talked about the problems of the patient in dealing with multiple specialists who might offer multiple recommendations for treating an illness.

Based on my recent experience, the article is true enough. I'd focus on the data problem: each specialist needs his or her own data. Actually, "specialist" is misleading--it raises the specter (ouch!) of a white coated expert "...ist". What I, as a layman with no recent experience of modern medicine, didn't realize was that each test involves a different organization. For example, the patient is referred by the personal physician to a medical lab for X-rays and blood work preparatory to a hip replacement operation. But in this case, the "lab" is a building, housing multiple testing organizations, X-ray being one and blood work being another. So the patient ends up going from one to the other, filling out forms for each with partially redundant information. Because the lab is separate from the personal physician, there's potential delay and loss of data. In fact, in the case of my sister, the blood work didn't get back to the physician for several days. This failure to communicate delayed diagnosis and treatment of an infection, which means a considerable cost in money, use of scarce hospital beds and staff, and suffering.

Comparing this experience under private health insurance to my own limited experience with HMO's, it's likely the communication among units would be better and the costs reduced. Costs for the patient and the system. But what's a cost for the payer is income for the payee. And the physician and labs have more freedom under the current system. It's all tradeoffs. (More to follow).

Islam Has the Right Idea

Travelers are much more sanitary than health care workers and visitors. That's a fact I gleaned from recent experience:

* the rest stops along I-81 were very busy, usually 2 or 3 men in the restroom at a time. Very seldom did someone urinate and leave; the pattern I observed was that everyone washed.

* in the upstate NY hospital I was visiting, the vistor's lounge had its own bathroom, which seemed to be used both by hospital staff and visitors. Sitting in the lounge you could hear the toilet flush and the sink run. But much of the time, I'd say at least half, you only heard the flush and no running water.

Why the difference? I'd guess it's the visibility. While you don't look at each other in the restroom, you're very conscious of others so you live up to the norms they display. In the bathroom, you're by yourself and easily forget that your activities can be heard. So you don't wash your hands, which is the cause of much death in hospitals.

If I understand correctly, Islam doesn't have this problem because it's taken specialization to the point of dedicating the left hand for sanitation. Failure to comply may be a sin.

As a true American, I'd suggest that we put a sign outside bathrooms. Most new public bathrooms have motion recognition triggering the flow of water, that that to the sign and to the door. The sign goes dark when the door closes, lights up when it opens if the water has run and says: "last user washed hands". I offer the idea free in the interests of improving life expectancy.

NY Times Articles on Hospitals and Patients

This NYTimes article, entitled In the Hospital, a Degrading Shift From Person to Patient - New York Times: includes a reference to one of my favorite thinkers, Erving Goffman:

"In Dr. Goffman's account of life in a mental institution in the 1950's, he describes the admission process as a stripping away of possessions, 'perhaps the most significant of which is not physical at all, one's full name.'

In modern medicine, patients more commonly become exasperated because they do not know the names of the doctors or other medical staff. At many clinics and hospitals, staff members come and go without introductions, patients say. Name tags are in lettering too small to read easily; the names embroidered in script on doctors' coats can get lost in folds."

Based on recent (vicarious) experience, all true, but somewhat overdone. In the hospital I was visiting (I plan more blogs on this, and will limit identification to "upstate hospital") they were trying. Staff were supposed to identify themselves to the patient. There was a white board for each patient that was to show the nurse and aide assigned on each shift.

But as with any bureaucracy, changing procedures and instilling habits is difficult. The white board was someone's bright idea, but it was too small for an older patient without her glasses to read. The markers for use with the board got mislaid. And, I strongly suspect, the "someone" was an administrator who never really got buyin at the working level. A big part of the problem is that change takes time and money. If an organization is strapped for both, the "bright ideas" don't get fully implemented, which increases cynicism and makes future change harder (see Dilbert).

What was good in this hospital was the acceptance that names should be known, so there was little awkwardness about asking. The social norm had been established, even though the practice was somewhat ineffective.