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The Dubious Case for a Written Constitution

photograph of monument celebrating Spain's Constitution

Recently, as Boris Johnson was holed-up in Downing Street, trying to resist his inevitable dethronement as Prime Minister, there was some talk of a “constitutional crisis.” On Twitter, “Activate the Queen” was trending (as though expecting a nonagenarian who is now too old and sick to do her job to save the country isn’t a crisis). The concern seemed to be that Johnson might refuse to resign, despite the fact he had lost the confidence of his cabinet. But there was no crisis. Still, this is a good time to examine an issue that raises its head every few years.

The former MP Rory Stewart was one of those worried that a crisis was brewing, and he used this to argue that the U.K. needs a written constitution. Robert Crowcroft, meanwhile, makes some telling points against the written constitution argument. For one, the U.K. has a written constitution, calls for a written constitution really just want us to combine all of the various pieces (like the Magna Carta and the Bill of Rights) which comprise the constitution into one piece.

But what are the supposed benefits of having the constitution written in one place? There seem to be a few arguments for writing down a constitution that I want to look at: clarity, the protection of rights, and the legitimacy of the state. I think the call for a written constitution rests on some other dodgy premises that recent events in the U.K. and abroad bring to light. I think that comparing the calls for a written constitution in the U.K. with how things work in the U.S. – where there is a written constitution – shows that these arguments aren’t as persuasive as they may sound in the abstract.

Some calls for a written constitution seem to hold that if we just had it all written down in one place, we’d know what is acceptable and what is unacceptable. We would have “clarity.” Gopal Subramanium has argued that a written constitution would have helped the U.K. navigate Brexit. Quoting Lord Bingham, Subramanium insists that “constitutionally speaking, we now find ourselves in a trackless desert without map or compass.” Having a written constitution might have told us whether Parliament needed to approve leaving the EU – thus avoiding a major constitutional kerfuffle.

But no constitution can cover every possibility. It is far from clear that had, say, the U.K. written down its constitution in the early 20th Century, that it could have possibly predicted a European power like the EU. Constitutions need to be written at a sufficiently general level that pays heed to potential new scenarios arising. But once you write something at a sufficiently general level, gray areas sneak in, hard cases present themselves, and the inevitable need for interpretation and application arises.

The U.S. Constitution has been argued over in courts for centuries. Still, fresh need for argument and investigation arises (or the Supreme Court would be out of business). There will always be unanticipated conflicts or a conspiring of events not explicitly articulated by the written document yet in desperate need of resolution for the sake of preserving political legitimacy. Even if a written constitution could have covered Johnson’s case, there will always be the possibility of things the constitution doesn’t explicitly and obviously cover. So, it’s not clear that the clarity argument gets us very far.

What about the efficacy argument? Subramanium also suggests that written constitutions protect our rights, more so than, say, the current British system. No doubt the British constitution is complicated and not always clear to the general public in the way that the U.S. constitution is. Citizens might well be empowered knowing more about their rights (this is a clarity-based consideration that feeds into efficacy). Constitutions are also harder to amend, and a simple parliamentary majority cannot usually overturn these rights.So, there is a degree to which written constitutions do protect our rights.

But this runs into a brick wall. Tell a woman in, say, Texas that a written constitution protects her rights when, had she wanted, she could have had an abortion a month ago, but now cannot. Constitutions might protect some rights, but others are very much open to interpretation – and how strongly these rights are protected is another factor, too. So, it’s far from clear that writing anything down makes our rights more secure. The only rights written constitutions make more secure are those that are clearly and obviously stated – yet even the right to free speech or the separation of church and state in the U.S. can be abridged.

Finally, there is the idea that a written constitution can keep the political system in check – it can protect us against the whims of a power-hungry person whose actions delegitimize the system. Rory Stewart (rightly) claimed that Johnson “is a frightening example of what a ruthless person with no respect for the unwritten rules of our system can achieve.”

Firstly, Robert Crowcroft persuasively argued that the fact Johnson is now gone (or will soon be – he is staying on in a caretaker role), shows the constitution works just fine as it is. We’ve little reason to think a written one would be any more effective.

And a comparison with the U.S. is again instructive. Did the U.S. Constitution stop Donald Trump’s attempts to overturn the election? The laws he may have violated might come back to bite him – but had he succeeded, the laws and the Constitution would have meant nothing. That would have been a crisis.

I’m reminded of Bernard Williams’s quip, in Ethics and the Limits of Philosophy, “What will the professor’s justification do, when they break down the door, smash his spectacles, take him away?” The efficacy of a constitution, written or not, depends upon whether it is respected and upheld, not on whether it is scrawled down neatly in one place.

Stewart worries that “gentlemen’s agreements” are what ensured the British constitution worked – but that, too, is a question of what we pay heed to. If we respect gentleman’s codes, the constitution will work fine. It’s when we stop respecting them that it fails, but that’s also a problem about when we stop respecting written, codified constitutions.

It doesn’t seem to me that a written constitution is what matters, what matters is that a constitution is respected.

The Roe Leak: Of Trust and Promises

photograph of manilla envelopewith "Top Secret" stamped on it

There is plenty to be said about the leak that brought us the news that the Supreme Court was considering overturning Roe vs. Wade, the case that legalized abortion throughout America. The most important issue is that, if this draft becomes law, many people will be forced to either give birth when they do not want to (and giving birth in America is dangerous compared to other wealthy countries, especially for women of color), or they will have to seek an illegal abortion. Not to mention that banning abortion does not decrease the number of abortions, it just makes them more dangerous (because they are illicit and less well-regulated).

My focus here is not on that issue, it is on the comparatively unimportant issue of whether whomever leaked the draft should have done so – though I won’t find an answer, I will explore what sorts of factors might help decide this. (Matt Pearce in the LA Times does an excellent job of explaining the various competing factors; there is no way that I could cover everything in this short article, and I will inevitably omit important factors.)

The leak itself has caused an outcry. SCOTUS Blog described the leak as “the gravest, most unforgivable sin.” (This might be a bit strong, considering the Supreme Court has previously ruled that slaves had no rights and Japanese-Americans could be interred in concentration camps.) The leak has also been described as an “actual insurrection” (seemingly by somebody who does not know what words mean) and as an obvious attempt to “intimidate.”

Others have offered more measured, reasonable, criticism. John Roberts, the Chief Justice, said that this leak was a “betrayal of the confidences of the Court [that] was intended to undermine the integrity of our operations.” He also noted that there was a “tradition” of “respecting the confidentiality” of such drafts, calling the leak a “breach of trust” that was an “affront” to the court. (It’s worth pointing out that leaking court opinions is not illegal – no law forbids leaking itself.) I want to suggest that even if everything Roberts has said is true, the leaker still might have been right to leak the draft.

Here is one starting point to get to Roberts’s position. Clerks apparently promise the court confidentiality, and to break a promise is itself wrong. After all, this is a reasonable promise to expect clerks to make (and this following consideration applies to judges, too): deliberating in an open way, where you can communicate trustfully with your colleagues, in theory helps to ensure open, fruitful conversation. (If a justice leaked the draft, they might not have made a promise, but the reasons to ensure open discussions apply to them.)

How exactly promises work is a topic of debate amongst philosophers, but one illuminating approach is offered by the recently deceased Joseph Raz that draws on the notion of “exclusionary reasons.”

As Raz sees it, what we should do is determined by what reasons we have. Ordinary (first-order) reasons help us decide what is best: if eating the cake will give me the nutrition required, and I want to eat it, then I should eat it if no reason exists against eating it. Now, if there is a reason not to eat it, for instance I have already had one portion and I don’t want to offend my hosts, then perhaps I shouldn’t eat it. Whether I should eat it depends on how these reasons weigh up: is it more important that I get the necessary nutrition and do what I want, or that I avoid any risk of offending my host. Promises are not like that: if I promised my wife I would only have one slice of cake, then the facts that I want it and it supplies nutrition, do not count. The promise excludes the countervailing considerations.

So, if there was a promise not to leak, then even if there are reasons to leak, perhaps one should not.

Yet even if the leak would breach a promise and constitute a betrayal, this might be the right thing to do. If a friend tells you that they are cheating on their partner, you might betray your friend’s trust by informing that partner – and trust amongst friends is important –  but tell that partner might still be the right thing to do: your friend’s partner does not deserve to be treated like this, and that might outweigh the fact that you promised your friend you wouldn’t tell.

Here are two explanations for why this might be okay. If your friend had said “I have a secret, promise me you won’t tell anybody?” you might think they are, say, planning a surprise party for a friend or thinking about a career change. You might reasonably think your promise has a certain scope, restricted to trivial things. If your friend had confessed to being a notorious murderer, you wouldn’t reasonably be expected to keep that promise, nor need you keep the promise when he tells you he has cheated on his partner. Likewise, in the case of the Supreme Court leak, we have to judge whether the promise to keep things confidential extends this far: does it cover overturning a law that has been settled for five decades, that will affect millions, and which many of the Supreme Court justices (even recently) suggested they would not overturn?

Or, perhaps sometimes it would be wrong to leak (because you promised not to) yet the best thing to do all-round is to leak it. This is a bit like the ethical problem of dirty hands: where to ensure the best result, somebody had to do something wrong. It might be that torture is wrong, yet finding out where the bomb is hidden is so important that somebody should do the awful thing and torture the suspect (this example is simplistic: torture is very ineffective). Likewise, perhaps leaking is wrong and damages the court, yet letting Roe vs. Wade be overturned is too dangerous, and somebody should get their hands dirty, do the wrong thing, and leak the draft for the greater good. This would be, in a way, deeply admirable.

The topic is complex, my point here is just that the fact that leaking is wrong, or the fact it betrays an institution, is not enough to get us to the conclusion that it shouldn’t be done. Sometimes – as tough as it may be, as much as it may damage one’s own moral standing or future career – people should betray others.

On Judicial Philosophy: A Reflection on Judge Jackson’s Hearing

photograph of Ketanji Brown Jackson with law books behind

Judge Jackson’s recent confirmation hearing raises a variety of questions about the nature of judicial philosophy and what relationship it has with judicial “methodology.” In her opening statement, Judge Jackson outlines a three-step methodology to how she approaches each case: to clear her head, to examine the data, and to apply the relevant laws if it is her job. When pressed and questioned about what her philosophy is, she candidly maintained her judicial philosophy is her judicial methodology.

This has received a variety of attention. Some think her response is indicative of her defying being labeled by others. Others think she is required to give us her judicial philosophy, that her methodology is the bare minimum of what to expect from a judge. Indeed, some were analyzing and predicting what the judicial philosophy would be based on her previous remarks and experience.

While Judge Jackson’s response has been a highlight of Republican criticism, it would be rash to infer this question is pointless, a divisive tactic asked for the sake of moral grandstanding. It is worth addressing the nature of one’s judicial philosophy, its importance, and asking whether it is equivalent to a methodology.

Let us presume that a judicial philosophy comprises the values and stance from which one sees and evaluates judicial cases. In this way, a judicial philosophy is value-laden and often prescriptive of how to interpret the law and act. In contrast, a methodology is often only descriptive. This gives the impression that a methodology is fair, insofar as it does not necessarily subscribe to values and prescribe responses.

This distinction maps onto our standard use of the terms and some intuitive examples. Consider how an ethical philosophy not only describes but evaluates as well as prescribes certain actions. For instance, deontology describes and evaluates actions according to the well-known categorical imperatives, the rule of universalization, and the intrinsic value of rational agents. When the deontologist maintains “Don’t lie,” it is based on a value of rational agency and is universal in its scope and demand.

A methodology, in contrast, is procedural. Much like the surgeon who must conduct several steps to perform surgery, a methodology describes the steps of parsing data and conducting certain actions. Moreover, while a methodology evaluates appropriate actions according to the issue at hand, a methodology does not have certain prescriptions built-in (aside from, perhaps, the general prescription to act in accord with the role one stands in; consider how the Hippocratic Oath is an imperative to do no harm). Where a scalpel is required in some situations, an IV is required in others — it depends on the patient’s need.

If this distinction is plausible, then it follows that a judicial methodology and judicial philosophy are not equivalent. This is not to say, however, that the two cannot overlap. For every judicial philosophy can avail itself of a methodology, and vice versa. So, we need some clarity on what Judge Jackson means when she maintains her philosophy just is her methodology.

Would it be a problem to only maintain a judicial methodology without a judicial philosophy? At first blush, it would seem like a fortunate state of affairs if the judge were to be impartial like the surgeon with a methodology. One might argue by analogy that the judge collects the relevant data with a clear mind and applies the relevant tools according to the need. If the brain surgeon is not trained and equipped to conduct heart surgery, one would hope he denies the request to operate and calls his colleague! So too with the judge. Impartiality, after all, is necessary for a judge to be just.

Indeed, this cleanly depicts how Judge Jackson describes her own three-step judicial methodology in more detail:

  1. Remain neutral: to proceed “without fear or favor.” Before approaching any case, she clears her head of biases and prejudices.
  2. Evaluate the data: to receive all of the appropriate inputs for the case (e.g., hearings, factual records, etc.)
  3. Apply the law: to exercise the “Interpretation and application of the law to the facts in the case, and this is where I am really observing the constraints on my judicial authority.”

Regarding this last step, she may look at her jurisdiction to see if it is her place to hear the case. Like the surgeon who coolly evaluates cases and responses, one might think Judge Jackson’s methodology is sufficient for her role as a judge.

However, the surgical analogy fails on precisely the points it should help. On the one hand, it is questionable that both the surgeon and judge may coolly evaluate data. Does not collection of data require an evaluation of the case’s salient features? It would seem so, though perhaps this is a common problem. If so, it would be what I like to call a ‘work hazard’ for simply engaging in this activity and thus not uniquely problematic to this particular issue. On the other hand, the respective standards which the surgeon and judge consult and the corpus to which they apply these decisions are different. For the Constitution is not self-interpreting and is far from clear at many points. For example, whose right is it to bear arms? Moreover, the application is also an issue. For example, does the prohibition of ‘cruel and unusual’ punishment preclude the death penalty today? Both of these issues of interpretation and application require values to guide the judge.

To illuminate how a judge might offer different sentences based on different judicial philosophies, consider two prominent philosophies:

Originalism: Interpreting the legal text(s) according to the words and original context, most prominently the original author’s meaning and public understanding of the text.

Prudentialism (also known as pragmatism): Interpreting the legal text(s) according to the respective values and interests at play at the time of the case (Justice Breyer, whom Judge Jackson is to replace, exercised this methodology).

Based on the philosophy, one will have different answers to the above questions. According to originalism, “cruel and unusual” punishment might not preclude the death penalty. In other words, this could lead a judge be open to giving a sentence of the death penalty. Based on prudentialism, “cruel and unusual” may very well preclude the death penalty. Individuals’ sensibilities of what counts as cruel may differ from the original authors (e.g. are there really any “humane” methods of executing a human?) In other words, this could lead a judge to avoid such a sentencing. Indeed, based on the sharp decrease in numbers of executions since ‘99, there is good reason to think that sentimentality has shifted for what classifies as “cruel.”

I would suggest, then, that a judge not only ought to have a judicial philosophy but is required to have a judicial philosophy. A judge ought to have a judicial philosophy because it is both an obligation of the role and prudent to make explicit one’s values and interpretive methodology. A judge is required to have a judicial philosophy if only out of operational necessity. The Constitution and law must be interpreted and applied, and to take a stance on ‘no judicial philosophy’ is perhaps to take a stance on a nascent philosophy.

We could, of course, attempt to deduce Judge Jackson’s judicial philosophy. Some have pursued this route – she clearly maintains that “adherence to text is a constraint on my authority. I’m trying to figure out what those words mean as they were intended by the people who wrote them.” While such comments as this may be indicative of an originalist position, I find it more helpful to see how Judge Jackson’s minimal position is prudent and not unprecedented.

Judicial philosophies can unnecessarily be understood to signal a political philosophy. If offered in this forum, her position could very well be misunderstood and utilized to characterize her in different ways. This would not be unlikely, given some of the grandstanding and loaded questions from many senators. And Judge Jackson was admirably keen to avoid these issues and “stay in her lane.” So, regardless of whether a candidate is obliged to inform the committee or public of her position, it seems to be cautious in some respects.

Such a brief response is also not unprecedented. Consider, for example, Justice Sotomayor’s opening statement for her hearing before the Judicial Committee. When describing her judicial philosophy, Sotomayor stated that it’s

Simple: fidelity to the law. The task of a judge is not to make law, it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms, interpreting statutes according to their terms and Congress’ intent, and hewing faithfully to precedents established by the Supreme Court and by my Circuit Court.

Justice Sonya Sotomayor

It could very well be that this is a stock and trade answer for such a forum. Moreover, it is an intentionally minimal answer and thus, a cautious maneuver.

For all the prudence and precedence, however, the point stands: a judicial philosophy is distinct from methodology, and the former is necessary for a judge. While a judicial philosophy is perhaps part of a judicial methodology, it will not be the whole parcel.

The Value of Secrecy in Congress

photograph of C-SPAN floor vote TV coverage

During both of the most recent impeachments, an old argument resurfaced. Afraid of retribution, many spoke out to advocate a way Republican members of Congress could get rid of Trump and keep their own seats. They suggested that the impeachment vote in the House and the Senate should be done in secret. Republican voters would know some Republicans voted to convict, but the blame would be diluted, spread across all 50 or so Republican senators. And so each Republican senator would individually be unlikely to lose his or her seat.

But this raises a question: if it would be good to convict Trump secretly, why not make the votes on all sorts of controversial issues secret? The people would know what laws were passed of course, but no one would be allowed to see committee meetings. No congressional sessions or votes would be broadcast on TV. You would vote in your representatives and then for two, four, or six years, you would simply trust that they voted in the way that was best. Members of Congress could pass legislation that might be unpopular to their constituency, but important for the nation at large. And neither ordinary citizens nor lobbyists could influence the legislative process after election day.

Many, however, are horrified by this idea. Making acts of Congress secret would be akin to government by aristocracy, rule by the elites, not democracy. Transparency is vital because it allows citizens to accurately judge whether their elected representatives are actually representing them instead of simply voting their own interests.

Let’s consider the arguments on both sides here and see if we can develop a better understanding of the issue. What are the benefits of congressional secrecy? And, are the costs to democracy too severe?

The first reason why one might think congressional votes should be secret is because this secrecy would allow Congress to stop acting only along party lines. Congress is extremely partisan nowadays and this hasn’t always been the case. Furthermore, this unwillingness to cross the aisle leads to difficulties in Congress achieving popular political ends. For example, nearly 60 percent of Americans supported Trump being convicted and removed from office after the second impeachment trial. Even more Americans, including 64 percent of Republicans, support stimulus checks. But, no Republican members of Congress voted for Biden’s stimulus check, despite voting for Trump’s. And finally, a majority of Republicans support increasing the minimum wage, but Republican members of Congress vote against it when the issue is raised by Democrats. Voting against political opponents seems to be more important to members of Congress than passing popular legislation.

The fact of the matter is that Congress isn’t beholden to your average voter. Nor even the average voter from their party. Members of Congress are beholden to the partisans of their party because of the primary system. According to a study from the Social Science Research Council, primary voters tend to prefer politically extreme candidates. And if candidates can’t make it past the primaries, it doesn’t matter how popular they would be in the general election. (Some have suggested primaries are responsible for Trump’s nomination.) In any case, if Congressional votes were more often secret, congresspeople could give lip service to extremism in the primaries while looking to what’s best for the country when they actually vote. Those extreme partisans wouldn’t know who betrayed them. Thus, legislation that is broadly popular, but not popular among extreme partisans, could be passed and perhaps we’d be better off.

But, partisans and primaries aren’t the only reason Congress doesn’t pass popular legislation. Another problem congressional secrecy, especially in committee meetings, could solve is the influence of lobbyists and donors. As I have written elsewhere, money in politics is a seriously corrupting influence. Lobbyists and donors frequently control the legislative agenda. But, again, this hasn’t always been the case. The number of lobbyists skyrocketed in the 1970s with the passage of so-called “Sunshine Laws” meant to improve government transparency. Some of these are good: Freedom of Information Act requests allow the people to have access to a great deal of information about the operation of government that would be otherwise hidden from them. But, they also allowed lobbyists to flow in from the lobby through the previously closed doors of committee meetings. As is argued by the Congressional Research Institute (a think tank, not part of Congress), these laws “enormously enhanced the ability of ‘outside’ lobbyists and powerful entities to influence the legislative process,” and so they claim “all legislative transparency overwhelmingly benefits special interests and the powerful.”

Think of it this way: before, lobbyists and donors could monitor how congressional votes shook out. If particular members of Congress voted how the donors wanted, they would get more campaign donations, and if not, they wouldn’t. This influence has always been around. But since the passage of the Sunshine Laws, lobbyists can monitor the entire legislative process: they can write the legislation, follow along with congressional committee meetings to make sure no revisions are made they don’t like, and display their approval or disapproval to members of Congress throughout the process. Of course, ordinary citizens can do this too, but they tend not to have the resources to lobby as powerfully as massive corporations or billionaires. If the relevant “Sunshine Laws” were reversed, many of these problems would go away, and if congressional votes were made secret too, lobbying would become a very bad investment. Donors could spend money on lobbying and campaign donations and hope that the legislator feels pressured by it, but they would never be sure if it worked. Thus, the influence of money in politics would be diminished.

However, there remains an enormous counter-argument to making the acts of Congress secret. I have been making a very utilitarian case for secrecy. It would achieve better results for the American people. But that may not be the only thing that matters. One might argue that the ends aren’t the only things that matter; the means do too. Making the acts of Congress secret would allow lawmakers to ignore the interests of the people in favor of their own opinions and values. It would allow members of Congress to lie to the people about how they voted with little to no consequence. Perhaps transparency should be considered a virtue such that if maintaining transparency means lobbyists and donors get their way, so be it.

One might say getting something they consider important, like removing Trump from office, or getting stimulus to the people, or raising the minimum wage, isn’t worth the cost of allowing Congress to be unbeholden to voters. Is a democracy led by representatives who can ignore the voters really a democracy at all? Many political philosophers, like John Locke and Jean-Jacques Rousseau, have argued that government derives its power from the consent of the governed. One might hold that doing what the people want, even if it’s wrong, is more important than doing right, if it means ignoring the will of the people. A government that doesn’t act for the people may not be much of a government at all. And why should we think representatives know better than the population at large? They are only human. And more than that they are an unrepresentative sample of the country, being more white, more male, older, and wealthier than the American population.Thus, on this view, making the acts of Congress secret is untenable: it is valid only according to a consequentialist framework and anyone who disagrees with such a framework will abhor the fact that legislators will be incentivized toward dishonesty and away from democratic principles. As Aristotle wrote in the Nicomachean Ethics, to act “at the right times, with reference to the right objects, towards the right people, with the right motive, and in the right way, is what is both intermediate and best, and this is characteristic of virtue,” nothing more, nothing less. This is a far higher standard than simply weighing the consequences and one we should strive for.

Making the acts of Congress secret would be an enormous change and not one to be taken lightly. As I have shown, your thoughts on this issue can vary significantly based on which moral framework you follow. The case, at least in the short term, is clear for the consequentialist. But for the virtue ethicist or deontologist, things are far murkier. Answering this question, as with many moral questions requires us to consider which of our values cannot be crossed? Which do you value more, if one has to be sacrificed: transparency and democracy, or the people’s welfare? In any case, something needs to be changed so that the problems of political partisanship and the influence of money in politics are resolved. Making the acts of Congress may be one solution but there are surely others. Perhaps we should reform the primary system. Perhaps we should overturn Citizens United to diminish the power of donors and lobbyists. The number of ethical solutions is only limited by our creativity, something which must be trained by continual practice and reflection.

Climate Services, Public Policy, and the Colorado

photograpg of Colorado River landscape

What does the Colorado River Compact of 1922 have to do with ethical issues in the philosophy of science? Democracy, that’s what! This week The Colorado Sun reported that the Center for Colorado River Studies issued a white paper urging reform to river management in light of climate change to make the Colorado River basin more sustainable. They argue that the Upper Colorado River Commission’s projections for water use are inflated, and that this makes planning the management of the basin more difficult given the impact of climate change.

Under a 1922 agreement among seven U.S. states, the rights to use water from the Colorado River basin are divided into an upper division — Colorado, New Mexico, Utah, and Wyoming — and a lower division — Nevada, Arizona, and California. Each division was apportioned a set amount with the expectation being that the upper division would take longer to develop than the lower division. The white paper charges that the UCRC is relying on inflated water usage projections for the upper division despite demand for development in the upper basin being flat for three decades. In reality, however, the supply of water is far lower than projected in 1922, and climate change has exacerbated the issue. In fact, the supply has shrunk so much that upper basin states have taken efforts to reduce water consumption so that they do not violate the agreement with lower basin states. As the Sun reported, “If it appears contradictory that the upper basin is looking at how to reduce water use while at the same time clinging to a plan for more future water use, that’s because it is.”

To see how this illustrates an ethical problem in philosophy of science, we need to first examine inductive risk. While it is a common enough view that science has nothing to do with values, a consensus among several philosophers of science has formed in the past decade which suggests that not only does science use values, but that this is a good thing. Science never deals with certainty but with inductive generalizations based on statistical modelling. Because one can never be certain, one can always be wrong. Inductive risk involves considering the ethical harms which one should be aware of should their decisions turn out to be wrong. For example, if there is a 90% chance that it will not rain, you may be inclined to wear your expensive new shoes. On the other hand, if you are wrong about that 90% chance, your expensive new shoes will get ruined in the rain. In a case like this, you need to evaluate two factors at the same time: how important are the consequences of being wrong, and, in light of this judgment, how confident do you need to be in your conclusion? If your shoes cost $1000 and ruin very easily, you may want a level of confidence close to 95% or 99% before leaving home. On the other hand, if your shoes are cheap and easy to replace, you may be happy to go outside with a 50% chance of rain.

When dealing with what philosophers call socially-relevant or policy-relevant science, the same inductive risk concerns arise. In an inductive risk situation, we need to make value judgments about how important the consequences of being wrong are, and how accurate we thus ought to be. But what values should be used? According to many philosophers of science, when dealing with socially-relevant science, only democratically-endorsed values are legitimate. The reason for this is straightforward; if values are going to be used that affect public policy-making, then the people should select those values rather than scientists, or other private interests, as that would give them undue power and influence in policy-making.

This brings us back to the Colorado River. A new area of climate science known as “climate services” aims to make climate data more usable for social decision-making by ensuring that the needs of users are central to the collection and analysis of data. Typically, such climate data is not organized to suit the needs of stakeholders and decision-makers. For example, Colorado River Basin managers employed climate services from state and national agencies to create model-based projections of Lake Mead’s ability to supply water. In a recent paper, Wendy Parker and Greg Lusk have explored how inductive risk concerns allow for the use of values in the “co-production” of climate services jointly between providers and users. This means that insofar as inductive risk is a concern, the values of the user can affect everything from model creation, the selection of data, and even the ultimate conclusions reached. Thus, if a group wished to develop land in the Colorado basin, and sought the use of climate services, then the values of that group could affect the information and data that is used and what policies take effect.

According to Greg Lusk, however, this is potentially a problem since if any user who pays for climate services is able to use their own values to affect scientifically-informed policy-making, then this would violate the need for the values to be democratically endorsed. He notes:

“Users could refer to anyone, including government agencies, public interest groups, private industry, or political parties …. The aims or values of these groups are not typically established through democratic mechanisms that secure representative participation and are unlikely to be indicative of the general public’s desires. Yet, the information that climate service providers supplies to users is typically designed to be useful for social and political decision making.”

It is worth noting, for example, that the white paper issued by the Center for Colorado River Studies was funded by the Walton Family Foundation, the USGS Southwest Climate Adaptation Science Center, the Utah Water Research Laboratory, and various other private donors and grants. This report could affect policy maker’s decisions. None of this suggests that the research is biased or bad, but to whatever extent values can influence such reports, and to whatever extent such reports affect policy-making, is the extent to which we should question whose values are playing what roles in information-based policy-making.

In other words, there is an ethical dilemma. On the one hand, climate services can offer major advantages to help users of all kinds prepare for, mitigate, adapt to, or plan development in light of climate change. On the other hand, scientific material designed to be relevant for policy-making, yet heavily influenced by non-democratically endorsable values, can be hugely influential and can affect what we consider to be good data-driven policy. As Lusk notes,

“According to the democratic view, then, the employment of users’s values in climate services would often be illegitimate, and scientists should ignore those values in favor of democratically endorsed ones, to ensure users do not have undue influence over social decision making.”

Of course, even if we accept the democratic view, the problem of defining what “democratically endorsable” means remains. As the events of the past year remind us, democracy is about more than just voting for a representative. In an age of polarization where the values endorsed may be likely to swing radically every four years, or where there is disagreement among various elected governments, deciding which values are endorsable becomes extremely difficult, and ensuring that they are used becomes more impactable. Thus, deciding what place democracy has in science remains an important moral question for philosophers of science, but even more so for the public.

The Day after Election: Procedure and Substance

photograph of US Capitol building at dawn

Much attention and energy is focused on the outcome of the election, but regardless who wins there is a great deal of work to be done — simply declaring one side the victor won’t solve our problems. So what’s the next question we should be asking after “Who won?”

No matter who wins the upcoming election, the elected administration will face questions of priority, what policies should be focused on. Should we focus on COVID or global warming? Should we pass election reform or healthcare reform? Should we deregulate now or first ensure protections for religious liberty?

These questions are always difficult. You need to weigh the ends at stake, your likelihood of success, how immediate the concern is, etc. In this post, though, I want to focus on one particularly tricky question of priority. Should one prioritize the substantive ends of government, or the procedural ends of democracy? Is a government’s first obligation to ensure those internal structures which maintain its democratic legitimacy, or is it right to prioritize lives saved over merely procedural and political rights?

To get at the distinction I’m drawing, it might be useful to think about the substantive policies as policies that any government ought to pursue. Thus whether you are a constitutional monarchy, a democratic republic, an Athenian city-state, or a theocratic oligarchy, you are obligated to promote the common good. The Holy Roman Empire in the 14th century had precisely the same kind of reason to halt the spread of the Black Death that Germany has to halt the spread of COVID today. In contrast, the procedural policies are those policies tied to the internal structure of democratic governance. These include things like ensuring fair representation (perhaps by making Washington D.C. a state) or access to democratic participation (perhaps by passing federal regulations to fight state-level voter suppression).

Now, there are two different questions of priority we need to consider. First, there is priority of sequence: what do we need to do first? Second, there is priority of importance: if we can only do one of these two things, which should we do?

Just because one thing is more important than the other, that does not mean that you should always do the most important one first.  Sometimes finishing my work is more important than sleep. A handful of times while in undergrad I faced the question of whether I would sleep or finish my paper. When faced with that choice, I would pull an all-nighter. Finishing the paper on time had greater importance-priority than getting one more night’s sleep. All the same, if I expect I can do both, sometimes it makes more sense to do the less important one first. If I will have time to sleep and write, I’ll often go to bed and finish writing refreshed the next morning. Sleep has greater sequence-priority because getting a good night’s sleep will actually help me write the paper.

So when we look at the sequencing question, what should we prioritize? The first thing to note is that certain kinds of democratic reform might be prerequisite to passing substantive policies. Ezra Klein, for example, has recently argued that unless democrats eliminate the filibuster a Biden administration will be unable to pass much meaningful policy. Similarly, perhaps you need to find some way to decrease the power of lobbyists before you will be able to corral enough senators to vote against special interests. On the other side, other democratic reforms might take a back seat to COVID relief. It will be two years until another election, so perhaps deal with the current crises and tackle election reform six months in.

The more interesting questions of priority, however, concern importance-priority. Suppose an administration could either enact healthcare reform or electoral reform, which should it opt for? This is a tricky question because it is not that clear how to compare these substantive and procedural goods.

You might try to sidestep the comparison. Maybe there is no trade-off because electoral reform will lead, in the long run, to the best substantive reform! For instance, perhaps you think that by making Washington D.C. and Puerto Rico states will help ensure future democratic control over the Senate and so, because you think democratic policies are better, prioritizing electoral reform will actually improve substantive policies in the long-run. Of course, there is something distasteful about adopting electoral reform to help your specifically preferred policy. After all, that could equally justify electoral deforming if you thought being less democratic would result in better policies in the long run. There are plenty of reasons, though, for thinking that democracies make better decisions in general. And reasons of that sort might justify giving long-term democratic reform importance-priority even over pressing substantive goals. This tends to be why I think, at least right now, the priority should be on democratic reform. Just as it is important to keep your own body in good shape, even if your goal is to be able to go and help others. So it is imperative for the government to keep its own internal deliberative form in good shape that it might be rightly accountable to the people.

But suppose, just for the sake of argument, that there really is a trade-off. Suppose we really do face the question of if we should choose a more democratic society in which people are by objective measures worse off, or a less democratic society where people are happier and more secure. In that situation, what should we choose?

One view, which I do find plausible, is that democratic goods are actually only instrumental goods. Democracy is a better form of government because democracies better secure the common good. As such, if you really do face a trade-off between democratic goods and the common good you should prioritize the common good. I’m sympathetic to this view, but it does require you to defend the counter-intuitive position that democracy has no value in itself — something I cannot possibly defend here in this post.

On the flip side you might think that democratic goods have a lexical priority over substantive goods. Because democracy is the source of a government’s legitimacy it must always prioritize that democratic structure. The problem with this view, however, is that it leads to a ‘resource black hole.’ It is probably always the case that you could make slight improvements to democratic access. So if any democratic reform takes priority over any substantive reform, then you would never get to the substance of government!

The third option, of course, is somewhere in the middle. Perhaps both of these are important, and major democratic reforms should take precedence over minor substantive reforms, just as major substantive reforms should take precedence over minor democratic ones. The problem, however, is one of incommensurability. What scale are we using when we assess what a ‘large’ democratic reform is in comparison to a ‘large’ substantive reform?

Fascinating work in behavioral economics actually helps us understand how these comparisons are made. It turns out our brains are very good at what we can call ‘intensity matching’. Take an example of Daniel Kahneman’s: if I tell you that “Julie read fluently when she was four years old” and then ask you “how tall is a man who is as tall as Julie was precocious?” You will probably give me a number at the high end of the 6-7 foot range. Most people do.

Of course, there is no meaningful question we are answering here. There is no deep sense in which a certain level of precociousness actually maps to a certain height. Rather we have a general sense for how extraordinary something is. But that sense of extraordinariness is scale-dependent. If one person’s scale of democratic norms starts with chattel slavery, and the other starts with voter I.D. laws, then we will get very different answers for what level of democratic failure corresponds to one hundred thousand deaths from COVID.

We feel confident in trading off democratic and substantive values, but it seems like we feel comfortable with those tradeoffs because we rely on a dubious form of intensity matching, rather than actually tracking something of real moral import.

Once you recognize how contingent our ‘intensity matching’ is, it really makes you pause and wonder just how do we go about comparing incommensurable values? What does it really mean when I say that mask mandates are a minor violation of liberty, one commensurate with public health crises, but that mandatory vaccinations are not? Sure, I intuitively feel that forcing someone to inject something into themselves is a far worse violation of autonomy, but is there anything philosophically real underlying the intuitive scale by which I compare that to public health threats? I don’t think there is.

So if you take the third view, a view on which you need to balance democratic and substantive norms, I think that means you’re just kind of stuck. It is unclear how we can possibly give a principled way to compare one priority to the other because those priorities are, in a very real sense, philosophically incommensurable. This, indeed, seems fundamental to what democracy is. Part of the miracle of democracy is that it provides us a way to collectively compromise on which of our incommensurable values we will prioritize and when. But if that is part of the miracle of democracy, part of the strangeness of democracy is that our prioritization of that miracle is itself something we sometimes need to compromise.

Under Discussion: Voting Best Interests and Democratic Legitimacy

image of hand placing checked ballot in ballot box

This piece concludes an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Democracy’s Demands.

Since the rise of democracies centuries ago, the concern over the rationality of the voting population has been a central one. Winston Churchill famously quipped, “Democracy is the worst form of government, except for all the others.” And recently, ethicists and political theorists have studied and analyzed the motivations behind voters who vote in ways that don’t align with what appears to be their best interests. (In the 2016 presidential election, the examples seemed particularly stark.) Jason and Cecilia Rochester, for example, are not alone in voting for Trump and then having their family feel the tragic effects of Trump’s trade policies. Yet still they voted for Trump, who was clear and adamant about his views on immigration and open about his xenophobia towards Mexicans. Farmers who voted for Trump ended up being harmed by his trade policies. In fact, they were the biggest business to suffer from his China trade deals.

But there are a handful of complications surrounding the common criticism that people often fail to vote in support of their best interests.

First, in attending to the resulting government that democracy produces, we can blur the differences between the various forms of government. In other words, if the principal value government is to produce a political system that reflects the “people’s best interests” (whatever we decide that is), then it isn’t clear that democracy would do a better job at this than the other structures. Democracy is often lauded as being more stable than governments that aren’t formed with the consent of the people; it is a platitude that power corrupts, after all. As 1991 Nobel Prize laureate Aung San Suu Kyi said of democracy, “Democracy is when the people keep a government in check.” But there are other mechanisms that might keep a government in check, and it’s possible that these alternative structures could have substantive standards for leaders resulting in a government that represents the interests of the people better than representative democracies at least for stretches of time, and at least better than some assessments of the US.

Second, in explaining why people vote against their best interests, it is difficult to assess others’ preference orderings. For example, if someone were to vote for a representative because they ran on trade principles that seemed right and just, but would have predictable negative effects on the voter’s family, community, and state, how would we characterize this vote? It aligns with their preferences, but perhaps not in their “best interests” if we conceive of these as their immediate economic considerations. To have a “right” outcome in mind when evaluating others’ voting choices inevitably reveals bias in how we think voters should make their decisions. Put more plainly, choosing against some conception of your best interests shouldn’t undermine the validity of your choice. And because the legitimacy of democratic authority rests in the consent of the governed and not in the outcome being a particular right answer, features of decision-making that undermine consent may be more concerning.

Say I’m deciding whether or not to go spelunking. There is a spelunking company that will take and train amateurs that I’m considering signing up with. There are the standard pros and cons of spelunking, including risk, cost, joy of discovery, endorphins resulting from exertion, becoming a member of the spelunking community, etc. These factors could not match up very well with my preferences and values in a variety of ways. It could shake out that spelunking would not be a great option for me, given my lack of focus and, to be honest, a bit of claustrophobia. This could sharply contrast with how my friend’s temperament relates to the pros and cons of spelunking, given that she is an adrenaline junky and enjoys exercise of any kind.

However, I decide to go spelunking anyways. It could be foolhardy of me, or perhaps even worthy of disdain, given the fact that I’m likely signing up for a rather bad time of it. But these aren’t criticisms that seem to target whether I’m consenting to take up the enterprise. What features of the case relate to that?

In most cases when a company takes an amateur into a risky situation, like spelunking, base-jumping, rock climbing etc., there is some sort of contract for one thing. In addition, there is usually some sort of required orientation, perhaps simply in order to sufficiently understand the contract. Underlying these features is the standard that you know what you’re getting into.

Many things could play a role in my decision to spelunk without knowing the pros and cons. I could simply not have done sufficient research to know how they line up with my preferences, or I could have been misled by the information misrepresented to me. But it would undermine the consent I am giving to go spelunking if I didn’t know what the basic pros and cons of spelunking were.

But the view that, if we were to deliberate, we would only do what is in our best interests is an overly idealized one. I could decide to spelunk with all the information, and people do things that are irrational, silly, and self-destructive with all the information. However, when we don’t understand the nature of our choices, the connection between our deliberation and the choice we make is undermined. The above example highlights how ignorance is one of the features that can undermine consent.

Because democracies ground their authority not in the result, but in the procedures of their functioning, the connection between the voters and the system is what is important. The danger in a democracy is not instances of people voting against their best interests, but whether they understood the stakes and what they were getting themselves into at the time. This locates concern for democratic legitimacy in misinformation and ignorance of voters.

There is good reason to attend to this concern, as evidence suggests ignorance is promoted by representative democracies and that misinformation has been on the rise in the past decades due to social media and digital communication. In particular, the degree of ignorance and misinformation in this election has created something like multiple realities that make decision-making difficult. For instance, consider the perspectives on the state of our economy.

There are many different views on the state of our economy, the role the president has had on the state of the economy, and the candidates plans for the future of the economy. Now, as in 2016, these perspectives play important roles in determining many voter’s decisions. In 2020, we add the economic fallout of the pandemic where we have experienced the worst unemployment rate since the Great Depression, the prediction that 1 in 5 small businesses will close if economic conditions don’t improve in the next six months, and over half of business that have shut down on Yelp say they will not be able to reopen.

It is worrying that such an important aspect of the functioning of our country, and a divisive feature of the candidates’ plans for our nation, can’t begin to be discussed with anything approaching common ground due to different characterizations of the state of our economy.

Ignorance about the reality of our economy is not something new. In 2011, a Harvard business professor and a behavioral economist surveyed Americans about their perspectives on wealth distribution in the US. It highlights the difference between the perception of people in the US from the reality of wealth distribution:

Thus, not only are we currently engaging in public discourse where different groups of people have streams of information that characterize the health of our economy differently, from a non-partisan perspective, we are starting from a skewed understanding of the distribution of wealth. This is reflected in the controversial characterization of socioeconomic class in a recent New York Times article categorizing a family of four making $400,000 as “middle class,” and Vice Presidential candidates engaging in a he-said, she-said about specific economic policies.

Starting from misinformed, misled, or otherwise ignorant positions is a significant threat to the procedures that are meant to grant government authority in democracies. The legitimacy of their power comes from the connection with the deliberation and voting choices of the people. While our votes often appear to conflict with our interests, their weight becomes meaningless if we don’t know what it is we’re endorsing.

Press Freedom in Australia: Democracy, Transparency, and Trust

photograph of two security cameras on side of building

This past week on Wednesday morning June 5, the Australian Federal Police raided the headquarters of the ABC, Australia’s national broadcaster and the most trusted media organisation in the country. Files were seized relating to a story from 2017 known as The Afghan Files sourced from leaked documents some of which detailed disturbing allegations of misconduct and criminal activity by Australian Special Forces serving in Afghanistan between 2009 and 2014.

The previous day, Tuesday June 4, the AFP had raided the home of News Corp Journalist Annika Smethurst in connection with a story she published over 12 months ago about the government secretly canvassing a plan to allow the National Signals Directorate to spy on Australians without their knowledge by hacking into critical infrastructure.

These raids have provoked outrage in Australia and beyond. It must be noted that the timing of consecutive raids is extraordinary, given that both reports concerned are well over 12 months old, and are in no way related to one another. The searches have raised concern about press freedom in Australia, with the media union denouncing them as a disturbing attempt to “intimidate” journalism.

Overseas media organisations like the BBC and The New York Times have weighed in on the raids. In a statement on Twitter the BBC said “this police raid against our partners the ABC is an attack on press freedom which we at the BBC find deeply troubling.” And The New York Times reported that Australia May Well be the World’s Most Secretive Democracy. Indeed, the Australian government has become increasingly tenacious in its pursuit of secrecy on a range of fronts, under the ever-broadening umbrella of ‘national security.’

These raids suggest that knowledge, which is merely inconvenient or embarrassing to the Australian government, is being guarded under the cloak of national security. Many observers dispute the characterization of either of these stories as genuine security issues. It is clear, also, that the release of both stories are overwhelmingly in the public interest. As such, it appears the government’s sweeping national security powers are being used to silence and intimidate journalists and their sources.

At the center of the debate is the question of what kind of security matters count as genuine reasons to keep knowledge from the public, and what constitutes an overwhelming public interest. At issue is balancing the principle of the public’s right to know with government’s need for confidentiality to protect other important things like security.

In the era since September 11, in response to the heightened threat of domestic terrorism, Australia has zealously pursued anti-terror, security legislation that has significantly advanced government agency powers. One such law, passed in 2015, requires internet providers and mobile phone networks to store customers’ metadata – the sender, recipient and time of emails and calls. The government argued that the bill was necessary to help Australia’s security services fight domestic terrorism. Those laws were further expanded once again at the end of 2018. There are limited defense provisions for journalists on the basis of public interest, but very weak protections for whistle-blowers who might be sources for investigative journalists.

If ‘national security’ is being used, as many civil liberties advocates worried it would be, to shut down debate and to silence public conversation, this has grave implications for Australia’s democratic integrity. There are deep issues at stake, in terms of the citizens’ ability to trust in the institutions of government, and to be protected against capricious acts by institutions, agencies, and governments. While security and confidentiality are important values, they must not be used by governments to hide things about which we ought to know, and we have to be able to trust that they are not.

It is ostensibly a conflict between the public’s right to know and the government’s right or need to protect confidential information, but that may be a false dichotomy. The interest of the people ought to be the only thing that determines the interest of a properly liberal democratic government –that is its raison d’être and its sole source of legitimacy. That is the ideal of a free democratic society – it is not however true in practice, and the distance between this ideal and reality is the measure of the extent of corruption of the modern democratic state. Corruption thrives on secrets.

Transparency and accountability are two of the most important principles for the functioning of an open, free society. They are both necessary conditions, without which a free, democratic society is not possible. We must be able to trust that, when knowledge which may have profound implications for our society is withheld on security grounds there is a genuine security risk associated with its disclosure. Yet that expectation of trustworthiness appears to have been breached, as the Australian government seeks to enforce its culture of secrecy by employing tactics of intimidation.

Australians have been asked to accept the erosion of many freedoms for the protection of national security. If these raids are not shown to be precipitated by genuine security concerns, the government’s ability to prosecute a case for genuine security needs in the future is compromised.

In a democracy the citizens legitimize the power of the state, and a democratic government has to be accountable to the citizens. A free press is what makes that accountability possible. In general, truth is fundamentally important for the function of an open, healthy democratic society, and we should lean heavily on the side of the public’s right to know and err on the side of transparency.

While some civil liberties advocates have long expressed scepticism about the wisdom of sweeping security laws, especially since Australia, lacking a bill or charter of rights, does not have strong legal protections for freedom of speech protecting the press, more broadly there has been a failure of community and political opposition to critically examine new security laws for how they could be misused; a failure which political commentator Waleed Aly described as a failure of civil reasoning. That failure has occurred in the context of a political culture dominated in Australia by ‘national security’ over other civic freedoms and rights.

The national conversation Australia is now having is about press freedom and its importance for democracy. Those participating need to remain cognizant that at stake is the abstract political and philosophical question of the legitimacy and the limit of state power.


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