A Flaw in Our Constitution?

The Supreme Court decided today that in all but one instance, Tom Delay's mid-decade Texas redistricting plan does not violate the Equal Protection Clause of the U.S. Constitution. In theory, the decision opens the possibility that each time a new party comes into power, that party can redistrict in a way that sharply increases the chances that it will remain in the majority. To the victor go the spoils.

As many journalists and legal scholars predicted from oral argument, Justice Kennedy was bugged by the lack of a workable standard for determining whether a given redistricting plan is a proper change to reflect changing demographics or an unconstitutional gerrymander. And I agree with him; the Constitution doesn't establish a standard, and there's no obvious, commonsense metric, either. So the Court said that without a workable standard, we're better off leaving the issue to elected politicians than to unelected judges.

But this issue seems especially ill-suited to be a political question. There's a terrible moral hazard problem. For a number of reasons, voters are best served by having districts in which elections are close. (You might argue--not unpersuasively--that if one party dominates a district, that party's primary will serve as the competitive election so important to a republic. But that practice effectively disenfranchises voters in the other party.) But each elected legislator has a strong incentive to fix the rules of the game so that she can win future elections easily. To solve this moral hazard problem, we need our redistricter to be free from the incentives that face elected politicians.

I see two clear alternatives. Judges could do it. See John Hart Ely, Democracy and Distrust (1980) (arguing that the role of unelected judges should be to reinforce democratic representation). The problem with this approach is 2-fold: (1) as Justice Kennedy noted, there's no law to apply, so judges are deciding cases in uncharted territory, and (2) unelected judges have political interests and preferences, so their decisions will be and/or will appear to be political. Of course, the Supreme Court's legitimacy is high, so perhaps the justices could do it without creating a huge backlash.

The other alternative is for the people to do it. A constitutional amendment specifying the methodology for redistricting would avoid the moral hazard problem and would give judges a standard for deciding future cases. The problem with this approach is that Article V of the Constitution requires the approval of two-thirds of each house of Congress, and both houses are currently dominated by one party. Thus, the GOP could set up an amendment that favors their insulation from political competition. The ideal timing for such an amendment would be when neither party dominates and thus both have similar interests. For example, 2 years ago was an optimal time for a constitutional amendment allowing naturalized citizens to become president because both parties had potential future naturalized presidential candidates (Schwarzenegger and Jennifer Granholm).

So how do we fix this problem? I don't know.

On a side note, the plaintiffs in the case (challenging the redistricting plan) argued that the highly irregular geographic shapes of some of the districts were clear evidence of a sleazy gerrymander. I don't see any reason (other than perhaps convenience) why districts ought to be based on geography.

Click here to read the Court's opinion.

The Flag-Burning Amendment

The Senate is debating a constitutional amendment to empower Congress to criminalize the physical desecration of the American flag. Some loosely related thoughts on the matter:

1. Fifteen years ago, a Yale Law School student named Jeff Rosen (the same guy, I think, who now writes regularly for The Atlantic and The New Republic) wrote a fascinating student note arguing that a constitutional amendment banning flag desecration would itself be unconstitutional. In short, Rosen argues that free expression is a natural right retained by the people in the Ninth Amendment; thus, even an amendment to the Constitution could not compel courts to enforce a law criminalizing the exercise of that natural right. See Note, Was the Flag-Burning Amendment Unconstitutional?, 100 Yale L.J. 1073 (1991). The argument is interesting, but I doubt the current state of Ninth Amendment jurisprudence supports it. I'm also skeptical that the Supreme Court would ever take a case challenging the constitutionality of a constitutional amendment, though a kooky appellate judge could force the Court's hand by trying to strike it down.

2. Is flag burning really happening? I really tend to agree with Democratic Senators who argue that conservatives are using debate on this issue to rouse their base into action in November.

3. But let's assume the proposal is not disingenuous; suppose its supporters really are concerned about stopping desecration of such an important national symbol. I wonder whether the amendment might backfire. Would flag-burning become more attractive to political protesters if it were illegal?

4. I think a flag-burning amendment is ridiculously dumb, and I would never vote for it, but I disagree with liberals who think such an amendment would be the end of the world. Their arguments sound an awful lot like slippery-slope fallacies: if we allow the government to tell us that we can't say X, what's to stop them from censoring us from saying Y? Well, the very limited scope of the amendment, for one thing. The proposed constitutional language is: "The Congress shall have the power to prohibit the physical desecration of the flag of the United States."

Too, to what extent are the goals of the First Amendment undermined by the proposed amendment? The conventional view of the First Amendment is that by permitting all ideas to compete in an open public forum, good ideas will succeed and bad ones will be rejected. But is the idea conveyed through flag desecration one that cannot be expressed in any other way?

5. I find this issue fascinating because of the splits it causes among people who usually vote the same way (and unions it creates among people who usually hate one another). Scalia probably has very mixed feelings about the amendment. Communitarians probably have to accept it. Liberal political theorists hate it.

Thoughts?
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[GC] Update: Check out Hendrik Hertzberg's article in The New Yorker on the proposed amendment.

Individual Responsibility as Favored Evolutionary Belief?

Evolutionary biologists sometimes come up with some fascinating yet essentially untestable make-sense stories for why we have certain biological or cultural traits. See, e.g., Daniel Dennett, Breaking the Spell (2006). In that tradition, I wonder whether a strong belief in individual responsibility might have been a favored cultural trait.

If an individual believes that what happens to people is primarily a function of aleatory factors, she is more likely to care for the offspring of less fortunate individuals. But expending resources on offspring not carrying your genes takes away from the resources available to offspring carrying your genes, thus decreasing the probability that your kids will survive long enough to have kids of their own. If, on the other hand, an individual believes that what happens to people is primarily a function of their choices, she is less likely to care for the offspring of less-well-off individuals. Instead, she can expend those resources on her own offspring, increasing the probability that they will survive to adolescence. Thus, ceteris paribus, individuals who strongly believe in individual responsibility are more likely to survive lean times and pass on their genes successfully. Regardless of its underlying soundness, a belief in individual responsibility might have had pragmatic advantages in the process of natural selection.

Of course, this argument makes some important assumptions. First, it assumes that the evolutionary advantages of a belief in individual responsibility aren't outweighed by the advantages of cooperation in lean times. And second, it assumes that a belief in individual responsibility doesn't have other negative behavioral consequences--a questionable assumption. After all, if you believe that your food production is largely independent of your effort, you'll probably exert less effort than someone who sees her food production as closely tied to her effort. Third, it assumes that communities have understood the logical nexus between sources of causation and conceptions of responsibility for a long enough period for evolution to work its magic.

I'm sure someone's made this argument before. Thoughts/responses/critiques?

An Inconvenient Truth

I'm in DC for the ACS National Conference this weekend. The conference officially begins tomorrow, and though there was a student retreat today, I wasn't up for attending any of the student panels, which, I suspect, consisted of little more than Bush-bashing law students. I'm no fan of Bush, but I don't see the profitability of rants.

So instead I went to see Al Gore's documentary about global warming, An Inconvenient Truth. The film features Gore showing a PowerPoint presentation replete with animated graphs to a studio audience. Now, lest that last sentence turn you off to the film, I should add that the movie was never boring and that, since 2000, Gore has figured out how to eliminate almost all of the monotony from his voice.

Gore presents overwhelming evidence about the nature, extent, and consequences of the global warming problem. Now, a good critical thinker could call into question quite a bit of Gore's evidence (I don't remember seeing more than 2 graphs with denominations on the axes; plus, Gore jumped from correlation to causation pretty damn fast), but really, I don't think the evidence is the film's problem. Besides, the documentary isn't for climatologists; it's for laypeople.

So if the evidence is good, what's wrong with Gore's argument? A lot, I say. If Gore really wants to solve the global warming problem (a big if), I think he's got to go deeper. People who believe in science as a primary way of knowing things probably already believe that global warming is a problem. Maybe Gore's documentary will increase the urgency of the cause in their eyes for a few weeks, but really, they're already on board. Gore has to convince people with different epistemologies. For example, I grew up learning that God created the earth for man; nothing man can do can destroy the planet. On that view, all the evidence about global warming, nuclear weapons, water, etc. won't matter, because God trumps science. People who hold epistemologies like this one don't put much stock in evidence that suggests their Hummer caused Katrina.

Now, to be fair to Gore, I don't think a 100 minute documentary can possibly change the epistemological views of millions of people with a lot of conviction. But he's got to do better than graph after graph after graph. He's got to use more pictures to strengthen the link between my behavior today and the bad things that will happen to me tomorrow. I'm not even sure whether it's possible, but I'm pretty sure Gore didn't do it.

Last criticism of the documentary: Gore closes the film with a list of things you can do to help solve the problem. Great. Does anybody really believe that their individual behavior makes a difference? We need legislation, not three committed hippies riding their bikes to work.

Thoughts?

A Recent Trend in American Politics

Warning: This post is about what I argue is a recent development in politics. I'm always skeptical when people argue that something new is appearing on the political scene. ("American politics are more fiercely partisan than ever before." Oh yeah? Are our politicians challenging one another to duels? Alexander Hamilton and Aaron Burr fought one.) Don't spare my argument that same skepticism.

Most conceptions of democracy make some strong assumptions about who people are. They're supposedly both disinterested--able to be persuaded by arguments for policies against their individual best interests--and interested--actively engaged and voting in every election. These assumptions lead to the median voter theory: in a pairwise election, the candidate who can capture the median voter will win. Politicians who bought into this theory tailored their platforms to the median voter.

But clearly the second assumption is too strong. People don't care enough to vote in every election. And others care, but they express their dissatisfaction with a candidate not by voting for the other party, but by not voting at all. George W. Bush and Karl Rove realized this fact in 2000 and capitalized. They centered Bush's campaign toward the GOP base--evangelical Christians--not the median voter. [Am I wrong about when this trend started?]

The fallout of this development is that politicians nowadays spend much time and effort striving to portray the descriptive status of their position as weak ("Conservatives are hijacking the country") in an effort to increase the urgency of their cause in the eyes of their base. Evangelical Christians are more likely to turn out on election day, for example, if they believe that liberal moral relativists are using the legislative process to shove gay marriage down the nation's throat.

But the descriptive status of a position is logically irrelevant to the normative merits of that position. Thus, this development leads to a lot of what I think is wasted talk. (Of course, it's not wasted from the perspective of politicians who enjoy the benefits of an energized base.)

A more problematic result of this development, I think, is that politicians are less willing to engage the arguments of the other side. When both parties were going for the median voter, they had to argue from within the same set of value preferences. So, for example, if gas prices were the most important issue to the median voter, each candidates had to explain why her policy proposals would lead to lower gas prices relative to the other's policy proposals. But now that politicians cater to their bases, they can refuse to engage their opponents on important issues. Gas prices? Let's talk about gay marriage instead. Fighting terror? Let's talk about government corruption instead.

I suppose you could argue that the glass is half full; nowadays, we have a robust public debate about which set of value preferences we should adopt. [Though I'm not entirely convinced that, in theory, we can have a meaningful debate about such different values; how the hell do you argue that equality is better than freedom? But see Noah Feldman, Divided By God: America's Church-State Problem--And What We Should Do about It (2005).] But this argument implicitly adopts the first assumption that most theories of democracy make: that people are persuadable. I think an enormous majority of people on both ends of the political spectrum are probably unpersuadable.

Thoughts? Comments?

How Progressive Can We Go?

Progressives like to argue for radical redistribution of income through the tax system; conservatives like to counter by pointing out the incentives such redistribution establishes. Neoclassical economic theory supports the conservative response: if we increase taxes on capital to too high a level, domestic interest rates fall relative to international interest rates, investors take their capital abroad, and we experience lower consumption at home. We're more equal but poorer. A sad story.

But how close are we to this doomsday prediction? Tax rates in Eastern Europe are very low (average tax rates below 15%, compared to nearly 20% in the U.S.). Yet we don't see a rush of capital from the U.S. to Eastern Europe, mostly because investors are risk averse and U.S. investments are more secure than investments subject to the whims of less stable foreign governments. How much more progressive can we make the tax system before we see serious capital flight? I'm sure NBER has a working paper on this question.

Thoughts?

Everyday Low Prices

Joshua Green has a fascinating article about Wal-Mart and the national health care debate in the June issue of The Atlantic. Wal-Mart workers' low wages and inability to get health care make them frequent occupants of the TANF and Medicaid rolls. So states, who pay the lion's share of these social nets, are fighting back. Maryland, for example, implemented a law requiring all companies who employ more than 10,000 workers in the state to spend at least 8% of their payroll on employee health care. Wal-Mart is the only employer whom the law affects.

As a result of the Maryland law and other proposed laws like it, Wal-Mart executives are beginning to find the idea of national health care less distasteful. This corporate support, Green argues, is exactly what might be needed to pass some sort of a national health care plan.

My casebook from my Administrative and Regulatory State class last semester summarizes a lot of empirical work indicating that the best factor for predicting whether a given law will pass is not the level of support it has, but rather the level of opposition it has. So, for example, we give more foreign aid to Israel not because of the overwhelming strength of the Jewish lobby, but because of the absence of any real pro-Palestinian lobby. [The reason, in short, is that our legislative system has a lot of places--sometimes called vetogates--in which a small but determined group can derail a proposal.] If this research is accurate (I know I'm asking you to take my word for it), Green's argument holds only if he assumes that Wal-Mart and other big businesses are the primary obstacle to national health care.

Are they? Obviously libertarians will still oppose national health care, but libertarians aren't a major force to be reckoned with in American politics. Religious conservatives probably aren't entirely opposed to the idea. But what about doctors? I suspect they're opposed to the idea. Right now our federal government is spending half a trillion dollars more than it takes in each year. Adding more spending in the form of a national health care plan will only increase the pressure to cut spending elsewhere. (Of course, when the Iraq war tapers off, our deficit will fall some.) A natural target for politicians at that point will be those doctors earning 6-figure salaries from Uncle Sam. So 2 questions: Are doctors as a group opposed to national health care? And if so, how substantial is their opposition?