Reasonable Bias

Professor Lessig recently wrote a nice article arguing that Justice Scalia, if he is to remain consistent with his prior jurisprudence, should vote to uphold the Affordable Care Act.  Failure to do so, Lessig argues, may result in an already skeptical public writing off the judiciary as politically motivated.  He is careful to distinguish that this is a problem of perception, noting specifically his faith that the Court remains true to its obligation of fidelity (and is, at least mostly, not motivated by politics).

In response, Professors Burnett and Somin at the Volokh Conspiracy wrote back partially on the merits and partially accusing Lessig of himself being politically motivated (indeed, one of the responses is unfortunately entitled, “Larry Lessig: If the Republican Justices Do Not Agree With Me They Will Be Acting Politically”, see also here).  Lessig’s response to Burnett is here.

This back and forth inspired me to begin writing something about the motivation of politics in the judiciary.  It wasn’t long, however, before I realized how much there is to say on this topic.  Rather than writing, I started reading a couple articles that I highly recommend: Fidelity and Constraint, by Lawrence Lessig (Fordham Law Review, 1997) and The Many Meanings of “Politics” in Judicial Decision Making, by Bradley W. Joondeph (UMKC Law Review, 2008).

I’ll leave it at that.  Enjoy.

UPDATE: Professor Barnett issues an apology and explains a subtlety in his title that had been lost on me.

A friend recently forwarded to me the following link, which summarizes certain highlights from an interview between Vic Eliason of Voice of Christian Youth America’s radio program Crosstalk and Senator James Inhofe (R-OK) regarding Senator Inhofe’s his new book, The Greatest Hoax: How Global Warming Conspiracy Threatens Your Future.  In this interview, Senator Inhofe claims that, “the arrogance of people to think that we, human beings, would be able to change what He [God] is doing in the climate is to me outrageous.” I wish to consider the nature of this “arrogant” “outrage” and its logical implications.

In order to accept the good Senator’s claim, we must first accept that He, God, is controlling the Earth’s climate. Let us grant this assumption. The counter assertion that Senator Inhofe opposes is the claim that humans can change what God is doing to the climate. The Senator concludes that to assert that humans can change what God is doing to the Earth’s climate is both arrogant and outrageous. Broken down:

Proposition 1: God controls the climate.

Proposition 2: Humans can change the climate.

Finally, to assert that P2, is both arrogant and outrageous because P1.

So what does it mean to “control” or “change” the climate?  The Senator gives us a clue by citing the Bible as follows, “’as long as the earth remains there will be springtime and harvest, cold and heat, winter and summer, day and night,’ my point is, God’s still up there.”  I read this to mean that for God to control the climate is for the climate to coincide with God’s plan or intention or directive (call it the “Plan”).  Thus, if P2 is to be read as inconsistent with P1, then by “change” in P2, Mr. Inhofe must mean something like this: for one to be able to change the climate means for one to be able to change the climate in a manner that is inconsistent with the Plan.

The Plan as Scientific Axiom

Perhaps Mr. Inhofe would deny that humans could change the climate by setting off the world’s entire nuclear arsenal at strategic points around the Earth.  Or let’s say that all the nuclear capable countries of the world shift into high gear and produce nothing but nuclear warheads for the next 20 years, resulting in a massive nuclear stockpile that is then set off at our previously mentioned strategic points.  Maybe Mr. Inhofe would deny that this could change the Earth’s climate.  Let’s extend the reasoning further.  Let’s grant that the nuclear idea wouldn’t change the Earth’s climate (I imagine a climatologist would beg to differ, but let’s assume, arguendo).  Mr. Inhofe could challenge a physicist or climatologist to concoct a set of equations, an analytical description of a theoretical state of affairs, pursuant to which the Earth’s climate would deviate from the Plan.  Under this interpretation, Mr. Inhofe would have to say that even the theoretical concoction could not alter the Plan.  In the same way that a geometer may say that it is theoretically impossible for two parallel lines to intersect, Mr. Inhofe would have to say that it istheoretically impossible to alter the Plan.  Thus, as with parallel lines in Euclidian Geometry, the Plan must be an axiom, an assertion that is taken without argument, a fundamental basis of a theory from which all other assertions within the theory are derived.  I imagine that most scientists would consider this to be a rather radical claim about the proper development of climate science theory, particularly those scientists who are not Christians.

Denial of Free Will

Now, let us consider an alternative reading.  Perhaps Mr. Inhofe does not intend to make climate science a field open only to those who adhere to a very specific Christian theology.  How then do we get to the conclusion that P1 is inconsistent with P2?  Mr. Inhofe would have to mean something like this: the set of theoretical possibilities that entails the climate deviating from the Plan, while theoretically possible, could never actually be realized.  This claim seems uncontroversial when applied to the silly nuclear postulate.  Clearly the countries of the world would never collude in the manner described.  But the claim is more than just an assertion that those countries would never so collude, it is an assertion that they never could so collude.  It is not that the bizarre collusion is simply unlikely, it is that it cannot happen.  While it is theoretically possible, we are not free to choose that possibility, for it is otherwise determined.

Now consider a less silly proposition about climate change.  Let’s postulate that the aggregate activities of billions of humans over time are slowly but surely affecting the Earth’s climate in a manner that could make living conditions on Earth less than ideal, i.e. could change the Plan. 

If the Plan is a scientific axiom, Mr. Inhofe would have to object by saying that the science of this proposition is wrong.  Note, he wouldn’t be saying that a rigorous analytical testing of the less silly climate change theory will show that it is unsound.  He need not waste his time delving into the reasoning within the theory in the same way that a geometer would not bother analyzing a geometrical argument that fails to assume that parallel lines do not intersect.  The geometer would look at such an argument and conclude that it is either unsound or non-Euclidean.  Thus to say that P2 is inconsistent with P1 is to say that a scientific theory that allows for P2 is tantamount to a non-Euclidean theory and thus false, because we all know that space is Euclidean.

Under the alternative reading, while the less silly climate change theory is possible, we are simply not free to choose actions that result in the realization of the possibility.  Such a theory would presumably involve a complex aggregate of actions that leads to climate change.  Depending on the theory, some of those actions may be intentional, some may be unintentional.  Some may be plausible, some may not be plausible.  We may quip about any of these aspects of the theory.  But such quipping would be all for naught, because as it turns out, the scientific theory is irrelevant.  Even if there were a sound theory of human caused climate change, that theory would not be relevant because it could not be realized.  To assert otherwise would be to assert that P2, which, Inhofe claims, cannot be true.  Indeed, Inhofe need not worry about whether or not there is a massive conspiracy to convince the public that climate change is occurring on the basis of unsound scientific reasoning.  For even if that reasoning were sound, we would not be free to realize it!

So where does this leave us?  We must either believe in scientific reasoning that holds a proposition of (a specific kind of) Christian theology as axiomatic, or we must believe that scientific reasoning is irrelevant because we live in a deterministic world based on a similar proposition of (a specific kind of) Christian theology.  Not only must we believe one of these two constructions, if we do not, we are being arrogant and outrageous!

I ask the reader to consider now, who is the arrogant one?

I suppose an explanation is in order regarding the content of this blog.  My postings will tend to be political in nature, as political thoughts often consume my stream of consciousness.  But I reserve the right to post about anything I think someone else may (or should) want to read.

I used to be a libertarian - I believed in very limited government, as derived from a certain understanding of individual liberty.

I am now a progressive - I now believe in a more active government, as derived from a certain understanding of general equities.

This evolution of ideology informs much of my thinking.  It will no doubt come up in future posts.

I have not written much of anything to date largely due to the fact that no matter how small an issue may be, my brain will often find a way to tie that smaller issue to a bigger one.  The bigger issue will in turn require a more rigorous and broad analysis that is impossible to achieve in a short piece.  Thus faced with the prospect of writing a magnum opus or an imperfect blurb, I have opted to do nothing.

This blog is my attempt to overcome such paralysis and perhaps in the process provide a few compelling thoughts on some smaller issues along with a few cogent, albeit nascent, thoughts on some bigger issues.  Along the way, I hope to illicit thoughtful feedback, particularly from those who disagree with me.

Which leads to what is perhaps the most important point of this endeavor: I believe in respectful debate and an open mind.  While I will vigorously argue for my positions, I will do my best to avoid being nasty or intractable.

In short, I will try to keep my bias reasonable.