Voting Rights Act decision

The Supreme Court recently ruled that the federal government can no longer oversee elections in certain Southern states that have a history of preventing black people from voting.  As I understand it, ordinarily elections are Constitutionally a state matter, but because states were in violation of the Fifteenth Amendment, which prohibits states from denying anyone the vote based on race, the federal government could justify intervening under the Voting Rights Act. 

As a technical, legal matter, the question before the Court as I understand it was whether such states are still liable to block black people from voting.  But the way it was reported was more like “OMG!  The Supreme Court might overturn the Voting Rights Act,” like they were about to rule that blacks no longer had the right to vote or something. 

A writer at The New Yorker, Eric Lewis, commenting on the decision (and the affirmative action decision), wrote, “Four members* of the Supreme Court rest easily in the belief that the bad old days of segregated education and poll taxes are matters of historical curiosity, unrelated to the color-blind society in which they think we live.”  Poll taxes are matters of historical curiosity.  We don’t have them any more, and no state will impose them after this decision.  But notice how Lewis equivocates to whether America, over all, is a colorblind society, which all enlightened people know is laughable, and away from the specific questions raised by the case. 

If “we” aren’t a “colorblind society,” and if that is the standard for removing scrutiny of states, why were only certain states subject to said scrutiny?  Because these specific states, at the time of the Voting Rights Act, were using sinister methods to prevent black people from voting.  That’s where the Fifteenth Amendment justification came in.  The Court doesn’t have to make vague decisions about whether we are a colorblind society or (in another Lewis formulation) about “the reality of race in this country.” 

Lewis is also upset that, in the affirmative action decision, the Court applied past precedents holding that government employing racial distinctions.  He wants these only applied to favoritism of whites over blacks, and finds dissonance in the idea that the reasoning from cases that helped blacks are being used to strike down efforts to help blacks: “The Court perceived no dissonance in citing the cases that helped dismantle Jim Crow as basis for the proposition that continued efforts at racial equality were inherently suspect.” 

But of course, the past precedents didn’t say anything about applying only in one direction, nor did they state “this Court shall always support black interests against white.”  The Court generally speaking doesn’t profess to favor some interests over others, but rather to judge the meaning of the law and Constitution.  Does Lewis think the Court was only pretending to do this in the cases that dismantled Jim Crow, that their reasoning was only an excuse to get the result they wanted?  Even if that’s true, it helps the Court’s credibility to stick to its precedents rather than obviously favoring one side over the other.

* He treats Justice Thomas separately.



In April, Ross Douthat wrote about the Fermi paradox, which holds that since there’s bazillions of starts, we should expect some of them to host life, and some of that life should have learned interstellar communication and travel and come and visited us, but that they have not done so, which is a paradox. 

One answer, Douthat says, is that conscious life is just a very unlikely outcome, unlikely enough that you would not expect it to be found elsewhere.  Perhaps it should not be expected anywhere, and its existence here implies cosmic significance for humanity; or perhaps it is just unlikely enough that we should expect it on exactly one planet in the universe.  Another answer, Douthat says, is that people just can’t travel that far- we humans won’t get beyond our solar system, and neither will anyone else.

The possibility that the Final Frontier has closed “haunts our era in subtle, unacknowledged ways.”  If our summum bonum is technological progress, and the pinnacle of that progress is space, and we’ve reached or are up against our limits there, then think what that implies. 

Our abandoning space means either we no longer care about it or we believe we’ve approached our limits, Douthat says (another possibility he suggests is that we think we have too many problems here on earth, but I don’t believe this for a minute.  People do what they care about.) 


Why should we have turned inward and stop pursuing/believing in the frontier at some point in the last four decades?  Why do we look back on the space age as an optimistic time, when there was plenty of talk at the time that the World Wars, the Holocaust, and Mutually Assured Destruction had refuted Progress?  Why should we look at our post-Cold War era as pessimistic, when it opened with end-of-history confidence in capitalism and globalization and the tearing down of walls?

We have all heard that WWI was devastating for the belief in progress, and WWII and the Holocaust made the idea completely incredible.  After the Cold War ended, people came to believe once again that history was a march toward greater liberty, democracy and wealth.  A recent book argues that violence of all kinds is on a downward path throughout history, and the interest this idea attracted is to me a sign of our times.  Then of course there was the great post-Cold War period piece, The End of History by Francis Fukuyama.

But maybe that’s the problem.  History is at an end, we’ve already done everything.  Tyler Cowen views the Great Stagnation as partly psychological; he once had a weblog post noting that we refer to “the developed world,” which means we think development is at an end, which he finds sad. 

By contrast, WWI, by destroying an old order that was on its last legs, unleashed a great burst of Roaring 20s energy as people perceived themselves as free from a dead hand of the past.  Politically, it directly created Wilsonianism and Leninism, self-confident political movements who competed to replace the old world order and offered competing claims to be the culminations of modernity and progress.  Fascism also offered competing claims in that regard.  (The Germans wanted living space- a new frontier!) 

WWII seems to have unleashed similar combinations of utter despair with, at least in America, energetic belief that we could achieve great new things.  As low as European civilization sunk, we saved things, the good guys won, it wasn’t an absurd, amoral war like World War I. 

I would trace today’s apathy to well before the Cold War victory; maybe to the time of Détente, when both sides stopped caring as much about winning it, a time that would coincide with the beginning of the Great Stagnation, a world-wide embrace of cynicism at the popular, not just intellectual, level, and the rise to prominence of ideas of environmentalism and “limits to growth,” which offered a new kind of challenge to the idea of Progress.


Even science itself is a kind of “developed world,” as perceived at the popular level.  Newton and Galileo energized a civilization with a science that could once be seen as very consistent with common sense- sure, the sun didn’t revolve around the earth, but that was easy to understand once you thought about it.  Einstein stretched things a little, people struggled to understand him, but he was seen as the great hero of our civilization, and people could be confident that he was allowing man to expand the frontiers of his knowledge.  Today, few people know or care what scientists are doing (what games they are playing?) with string theory or quantum mechanics. 

Instead, those who see themselves as interested in the fate of science feel the need to defend past gains, in the face of a religious fundamentalism that supposedly threatens to return us to the time of Galileo’s forced recantation.  As an evaluation of our situation, this is nonsense, but it is psychologically consistent with much else about this era.

Furthermore, the hot-button issue for “pro-science” people is global warming.  Science for them is no longer about progress as much as it is about warning us of the dangers of progress.  Scientists align with critics of progress rather than with the modern project.  The leading popular spokesman for “science,” Al Gore, is also the man who wrote a 900 page tome, Earth in the Balance, arguing that we’d taken a wrong turn, made a metaphysical and spiritual mistake, at Descartes and Bacon.


All this mostly suggests that our era is characterized by cynicism rather than despair.  We’ve already done everything we can under our current horizons, it all may or may not really be valuable, but there’s not much urge to create new horizons.  We’ve reached our limits and can more or less stay put.  In the negative sense we’ve eliminated all sorts of evils over the past 500 years, which has helped us to not be miserable, but there just isn’t any grand hope for anything positive.

An exception to this picture is the New Age ideas of the 1970s, which offers not only a negative critique of industrial progress but an alternative in the form of “higher consciousness,” like that experienced by Luke Skywalker.  This is obviously progress in a totally different direction than the one that has powered the modern world and its various ideologies. 

This idea proved somewhat influential, but all things considered most people probably still prefer cynicism.  There’s an episode of Seinfeld where they talk about the meaning of life and whatnot, and how people say you’re supposed to live every day as if it’s your last so that you do really important things.  But, Seinfeld asks, how do you do that?  What would I be doing differently if it were my last day?  Wouldn’t I still be hanging out at this restaurant?

It seems to me that New Agers have evolved over the decades into the singularity nuts, and have after all embraced the idea that technological progress is the source for eventual spiritual progress.  The aforementioned Mr. Gore, the same Gore who rejected Bacon and modernity, is after all the enthusiast of the Information Superhighway, the man who “took the initiative of creating the Internet.”  These TEDTalkers, techno-utopians and singularity-mongers aren’t mainstream, but they do think they have a new frontier in mind for humanity, or for humanity’s replacement.

Study on Negative Effects of Unwanted Children

A NYT article covers a study of women who want abortions but are denied them, and the particular case of one such woman, called S.  The author of the article thinks public debate focuses disproportionately on the effects of abortion on women, as compared to the effects on women of being denied abortion.  The idea that abortion negatively affects women, he believes, implies that women don’t know what they’re doing when they get an abortion.  So what does the author himself believe about women’s agency?

S. was looking for answers after Planned Parenthood said she was too far along for them.  Her sister recommended abortion counseling provider First Resort.  “S. didn’t know that First Resort’s president once said that ‘abortion is never the right answer.’”  He makes that sound kind of sinister.  Does choice have to mean the choice of abortion, or is there a place for organizations that try to help women in S.’s dire situation without resorting to abortion?  If she doesn’t find them helpful, she’s an autonomous agent and can make her own decision, right? 

Or can she?  “The nurse (at First Resort) asked S. if she wanted to see the baby and turned the monitor toward her: ‘Look!  Your baby is smiling at you.’  S. was shaken, convinced she also saw the baby smiling.”  (Emphasis mine)

The study covered in the article compares outcomes for women who seek an abortion too late in pregnancy with those who get abortions just in time.  It finds that women who get abortions are less likely to be poor two years later and have better health, apparently because of the effects of childbirth on health. 

According to the researcher, “society has the absolute least sympathy” for women seeking late-term abortions, as reflected by the fact that most people favor banning such abortions, and that the law to some extent reflects this view.  This is a warped perspective.  Obviously, people see late-term abortions differently because they are more convinced a child has a moral status closer to its birth.  It isn’t that they for some reason view the woman differently; it’s her baby that they view differently.  Similarly, after a baby is born, people are even more convinced of its moral status, and are generally strongly opposed to infanticide.  This doesn’t mean that they have less sympathy for women themselves after they give birth than beforehand, or something.

Buried about forty-five paragraphs deep in the article is the finding that 5% of women denied late-term abortions regret having their babies.  S. herself, after the tremendous difficulties so movingly depicted- her anxiety over inability to get an abortion, her guilt as she sought an abortion, her “shaking” experience of having the pro-life group show her her ultrasound, her dire poverty, her worries early in motherhood- considers her baby the best thing that ever happened to her, the love of her life, and her whole world. 

Naturally, this requires explanation.  For that, the author turns to expert Katie Watson, who says “[i]t’s psychologically in our interest to tell a positive story and move forward…It’s wonderfully functional for women who have children to be glad they have them and for women who did not have children to enjoy the opportunities that afforded them.”

So women must be telling themselves a positive story, which differs from the truth about their lives, which is that they are miserable.  But wait.  Earlier, this same article had endorsed a utility maximizer view in which women rationally make decisions in their self-interest.  Now he’s saying that psychological factors lead them to tell themselves stories.

The author of the article is engaged in an absurd effort.  He wants to defend abortion as good on grounds of measurable, quantifiable results (health, wealth, etc.), but how can you possibly quantify the value of a child- even just from the woman’s subjective experience?  And how can you make the woman’s experience everything (so the child’s life doesn’t matter, except insofar as it effects her), then turn around and say her subjective experience doesn’t count after all? 

All experience is subjective, including the objectively measurable bits that the author of the piece cares so much about.  The original decision to try to have an abortion was certainly a subjective judgment.  But the author and the person who did the study appear to me to be arguing, “women in certain circumstances should get an abortion,” with “women who want an abortion” as a proxy for “women in certain circumstances.”  Otherwise, what’s the point in making objective measurements- why not just say “choice is good” and be done with it?

This brings us to the people we haven’t really considered- the children themselves.  Oh, sure, the article says the researcher plans to compare outcomes of children born to mothers turned away from abortion compare with children of mothers who aborted a child and then had one when they were ready.  But what question is this supposed to answer?  For the children, the relevant question is not “are they better off than some other children,” but “are they better off being born than not being born.” 

The article notes a similar study of Czech women denied abortions by a government commission versus those born to mothers who did not seek abortion.  Children of unwanted pregnancies had “negative qualities,” and were unpopular with peers and teachers, and so apparently should have been left to die.  For whose benefit?  Their own?  Or society’s?

An uncomfortable question, perhaps.  The author implies the answer you were probably beginning to suspect, in raising an “uncomfortable question” of his own (but I like mine better).  “Given the negative outcomes for turnaways, Foster’s study raises an uncomfortable question: Is abortion a social good?  [Freakonomics author] Steven D. Levitt…argued that…Roe v. Wade led directly to a sharp drop in crime during the early ‘90s: women who were able to plan their families gave birth to better-adjusted children…’It’s offensive,’ Foster [author of the study featured in this article] said of the Levitt study.  ‘Let people have abortions or they will breed criminals?’”  

But of course Levitt claimed to be doing value-neutral science, not advocacy, (just as Foster claims to be doing.)  The finding “abortion reduces crime by preventing criminals from being born” need not be offensive, but the conclusion “abortion is justified to prevent the breeding of criminals” is morally wrong, as Foster says.  But what is her alternative?  “If there is a social good to abortion, Foster prefers to frame that good in terms of positive alternatives.  ‘Maybe women know what is in their own and their family’s best interest…They may be making a decision that they believe is better for their kids – they kids they already have and/or the kids they would like to have when the time is right.’” 

But what difference does it make what kind of social good argument we’re talking about?  At the end of the day, the argument is that parents will have BETTER kids if they wait until they’re ready.  Better for what?  The uncomfortable question again.

He’s not saying all Republicans are racist, but…

A couple kids of Republican Congressmen have made racist comments on social media.  Jeremy Stahl at Slate wonders what this says about the Republican Party.  “While it’s true that dumb kids saying racist things on social media isn’t a particularly shocking news story, I think there is something about present-day conservative politics worth taking away from these cases.”  If it’s not noteworthy, how can it be noteworthy?  Because it confirms what you already believed?  “It’s something most of us knew already.”  Thought so.* 

What everybody knows is that “a not insignificant portion of the GOP electorate” is racist, sexist, bigoted, homophobic, etc.  Stahl doesn’t provide evidence to support his claim or definitions for his terms.  It isn’t clear what is meant by “not insignificant,” but the strong suggestion is that “significant” levels of racism are unique to the Republican Party. 

But if by racism we’re talking about hard-core racism of the kind displayed in the two kids’ tweets, there is good reason to believe this is not true.  When Chris Hayes raised a similar claim to that of Stahl, Alex Tabbarok cited a 2002 poll in which 12% of both Republicans and Democrats think interracial marriage should be illegal; 15% of Democrats and 16% of Republicans strongly agree that blacks shouldn’t be pushy, and 92%+ of Democrats and Republicans would be willing to vote for a black President.

Now of course if we’re defining racism such that it can mean whatever you want it to mean, then of course you can prove anyone you want is racist (Stahl: “dog whistles to this constituency usually involve subtler terms such as ‘welfare,’ ‘handouts,’ ‘illegals,’ ‘food stamps…’”)  But Stahl is equivocating between the actual, virulent racism of a couple of kids who like to say outrageous things on the internet, and things he arbitrarily chooses to associate with racism.

So anyway, the GOP is responsible for these two kids’ trolling because the GOP “cultivates racists as voters,” which means it has racist voters, which means kids hanging out in Republican circles are hanging around with bigots.  And “[i]f all of your friends are Republicans and even a small subgroup of Republicans are racist, homophobic bigots and become one yourself than if you’re hanging out with liberal, crunchy kids.” 

So you shouldn’t ever hang out with Republicans?  “No, he says if you hang out only with Republicans.”  Yes, but by his reckoning, you’re exposed to mostly non-racists but a small subgroup of racists- same as if you hung out with Dems and Republicans.  He has so little confidence in the ability of humanistic ideas to win out over racism that he thinks any exposure to racism will make you racist.  So to be safe you should really only let your kid hang out with liberal, crunchy kids, isolating yourselves with confidence in a moral superiority so strong it cannot be doubted, and so fragile it cannot survive contact with the outside world.

* Jeremy Stahl’s Bayesian priors were 100% that the Republican Party is racist, and after this story they’re still 100%.  If they had been 50%, or 5%, would they have gone up?  How likely is it, in a world where GOP is not racist, that two politicians’ 15-year-olds would tweet racist things?  How likely is it in a world where GOP is racist?  Solve the equation accordingly.

Austen and Game Theory II


A while back, I commented here regarding an article about the claim by a game theorist, Michael Chwe, who credits Jane Austen with founding game theory.  I found the claim to be thought-provoking, but wondered how one would define game theory in a way that’s broad enough to include literature rather than just specialized economics, but narrow enough to be able to say that one author, specifically, founded the field, and that author was Jane Austen.  The NYTimes article really didn’t give enough information to evaluate Chwe’s claim.

Chwe has since spoken for himself at PBS.  He describes game theory as “the mathematical analysis of strategic thinking.”  While he acknowledges Austen did not use mathematics in her analysis of strategic thinking, he does find in her “theoretical analysis of strategic thinking,” along with “the emphasis on choice” and “the theory of utility.”  Elsewhere in the article he provides a more useful definition of game theory: “the discipline of looking ahead (to what others will do) and reasoning backward (to figure out what you should do in anticipation of what others will do.)”

Chwe acknowledges that game theory can and has been applied to other literature (the Bible, for instance.)  I suppose Austen could be considered more purely game theoretic than, for instance, Shakespeare or the Bible, where strategic reasoning tends to take place to an extent but then be superceded by other aspects of psychology.  To see what Chwe might have found distinctive in Austen, let’s consider where the attempt to treat pre-Austen literature as game theory breaks down.


Contrast Austen with Shakespeare.  Hamlet’s internal psychological battles (“to be or not to be”) are his own, and they ultimately dominate more than his strategic games with the King.  Generally, moreover, Shakespeare will sacrifice a kind of realism and have his characters pursue outlandish strategies, to create dramatic situations that fully reveal character.  Obviously, Jane Austen and the modern economist are aware that people’s selection of goals is pre-rational, but they take goals as given to a greater extent, and focus less on the extent to which other psychological factors get in the way of the pursuit of one’s goals.  People’s driving forces are things like sense, sensibility, pride and prejudice- rather tame and…well, sensible.  Catherine imagines something darker in Northanger Abbey, but Henry Tilney explains that the institutions, laws and culture of England makes such things practically impossible.  There are no ghosts and spirits in Austen or econ, and not many existential leaps of faith. 

In the Merchant of Venice, Shylock the Jew demands his pound of flesh from Antonio, counting on the fact that although the Duke sympathizes strongly with Antonio, he understands that Venice needs to maintain a strong rule of law to keep the trade and investment that is the basis for its prosperity.  Ordinarily, capitalist institutions such as contract law are conducive to the pursuit of wealth, and merchants are focused on the pursuit of wealth, but merchants are human and they have other motives.  They are of course aware that others in society may hate and despise them, as for instance Antonio repeatedly insults Shylock as a moneylender and a Jew.  Shylock can defend capitalist and bourgeoisie morality, and the humanity of Jews, and does, but the pound of flesh is his resort to more drastic measures against Antonio, combining bourgeoisie, game theoretic calculations with aristocratic devotion to revenge and honor. 

Portia intervenes on behalf of Antonio, of course, disguising herself as a lawyer.  She recognizes that Antonio is not himself knowledgeable in law, and if she can first persuade the Duke and, ideally, Shylock himself of her own credibility as a legal authority, and make legalistic arguments that are at least as plausible as Shylock’s, she can carry the day.  She gets Shylock to endorse her legal wisdom by appearing to side with him, as she emphasizes the importance of sticking to the letter of the law rather than allowing emotions to dictate decisions.  She then argues that Shylock can have his pound of flesh, but not any blood, and moreover it has to be exactly one pound.  So far, she has matched her actions to the incentive structures of the Duke and Shylock to produce the desired result, and provided a case study in how judges get what they want under the guise of impartiality.

But at this point, sound strategy would dictate that she leave well enough alone.  She is of course bluffing.  Her decision to seek revenge by demanding Shylock’s life might cause Shylock to challenge her legalistic façade, regain the legal upper-hand and again use his leverage to threaten Venice’s commerce-friendly reputation.  Or it might cause him to become desperate and stab Antonio (he still has the knife, right?)  In her own desire for revenge, she has ceased to think rationally.  However, at a pre-rational level Shylock is rattled; he does not regain the upper hand.  So in this play game theory governs some decisions, but other aspects of psychology are more prominent in other crucial ones.

Hamlet and King Claudio work hard to strategically anticipate each other’s actions, but Hamlet uses the play-within-a-play to strike Claudio at a pre-strategic level: ‘twill catch the conscience of the King, before the King knows what he’s doing.  Hamlet’s leap of faith to believe the ghost really is his father rather than some wicked spirit is obviously pre-rational.  His decision to sword fight Laertes makes no sense from a game theory perspective, and so is obviously driven by non-strategic psychological needs.  He provides a goal-oriented justification for not striking down Claudio while Claudio is apparently praying (he doesn’t want Claudio to go to heaven,) but I suspect he really just doesn’t feel right about it. 

In Midsummer Night’s Dream, shifting romantic urges and the hidden spirit world completely drive action, and only the most rudimentary efforts at pursuit of goals is possible.  In Romeo and Juliet, Juliet tries her best to secure a credible commitment from Romeo, but given the breakneck pace forced on them she has to take him mostly on faith.  The attempt by the priest to arrange things is probably not the soundest elopement strategy one could conceive of; again, Shakespeare sacrifices realism and sound strategy when necessary to fully reveal his characters.


Chwe mentioned Austen’s focus on choice as crucial to his seeing her work as game theory.  A problem with treating Shakespeare, the Bible, or Greek literature as game theory is that destiny dominates these works, meaning our choices matter less.  “There’s a destiny that shapes our ends, rough-hew them how we will,” said Hamlet.  This is only partly true in Shakespeare, certainly less true in him than in the Iliad or Oedipus, but the fact that his characters partly believe it is true itself shapes their choices, away from game theory types of strategy. 

As for the Bible, Old Testament or New, God’s plan dominates, and the human choice that matters is whether to have faith.  Characters can only to a very small extent practice game theory on God.  Jacob is the only character I can think of who makes any attempt to extract credible commitments from God.  There is no place for strategic thinking in Abraham’s binding of Isaac, or Adam and Eve’s eating the fruit, or Noah building the ark.  These stories are if anything a precursor to existentialism, as Kierkegaard thought.  There is strategic thinking in relationships between humans (how can I get the birth right, how can I get out of this prison, what should Egypt’s agricultural policy be, how can I contain Hebrew population growth, how can I get the birth right, how can I have sex with Bathsheba, etc.), and it does matter, but man’s strategic relationship with man is much less fully developed than man’s relationship with God.

Fatalism is weakening in Shakespeare compared with in ancient Greece, but it is weakened further by time of the Enlightenment and Austen’s writing, as I read the situation.  Now, obviously even once we have eliminated or weakened Destiny, there are limits to how much we can control with our choices.  Chwe explains that economics expects firms to calculate one another’s actions when they aren’t in an oligopoly situation- there is simply a market price that they must accept, reflecting diffuse information that nobody could calculate.  The point is, Austen focuses her attention on the limits within which choices do matter.  Chwe cites Fanny’s rejection of Henry Crawford, against her uncle’s wishes.  It’s eighteen-hundred-something, and if Fanny absolutely refuses to marry Henry Crawford, she just isn’t going to marry him.  Juliet Capulet didn’t feel she was in that position.  It takes heroic firmness for Fanny to make her stand, but not the kind of desperate measures that left things in the hands of destiny and fate in Shakespeare.


In my comments on the NYT article on Chwe on Austen on game theory, I wrote “Chwe finds in Austen a concept of ‘cluelessness,’ which he thinks should be part of game theory.  Rather than treating players as equally rational, cluelessness analysis allows one player to make strategic mistakes because, from a position of social dominance, one party ‘may not realize it even needs to think strategically.’”  In the PBS peace, he likens this to dominant companies’ dismissing “disruptive potential” of competitors.  He also likens it to what he says is U.S. failure to anticipate the Iraqi insurgency, when Iraq’s tactics were obviously the correct response to superior U.S. firepower; and to the humanities establishment dismissing efforts to economically analyze literature.

In my previous piece on Chwe I suggested Henry Tilney’s turning Catherine Moreland out of his house as an instance of cluelessness, and in his PBS piece Chwe cites this.  (There’s much more subtle cluelessness in Northanger Abbey, though- see my previous post.)

In Sense and Sensibility, Chwe sees Marianne Dashwood as deliberately bringing about her illness in order to get Willoughby to explain his actions and confess his love for her (even though his lack of integrity means she no longer wants to marry him, she cannot be satisfied without an explanation.)  Don’t know what I think about that.

Thoughts on an Attack on Clarence Thomas


John Blake, a CNN journalist, has a hit analysis piece trying to “explain” things he finds baffling about Clarence Thomas.  For instance, why should Clarence Thomas vote against affirmative action on the Court when he himself benefited from affirmative action, in getting into Yale and in being appointed to the Supreme Court because he was black?  Blake also associates affirmative action with the civil rights movement in an apparent attempt to make it sacred, and make Justice Thomas’s independent mindedness into not only ingratitude but also heresy.

His question proves Justice Thomas’s point: that affirmative action enables people to devalue or call into question black accomplishments.  To some extent, this sort of thing cannot be helped.  Clarence Thomas took Thurgood Marshal’s spot on the Supreme Court, and obviously there is no formal quota system on the Supreme Court, but just as obviously there would have been a felt need to appoint a black Justice.  Moreover, even if GHWB rejected such affirmative action and gone with the nominee he considered best, there would always be the appearance of preferential treatment if the man he thought was best happened to be black.

Barack Obama has faced similar questions, as I’m sure Thurgood Marshall himself did.* There was obviously a strongly felt desire for a black President when Obama ran in 2008.  Was BHO really more qualified than, for instance, Hillary Clinton for the Presidency?  Now, respectable conservatives don’t really emphasize this argument about Obama the way liberals do about Thomas.  This is either because they are inherently less inclined to racially charged arguments or, more likely, because there is a taboo against conservatives raising such arguments (thus, any conservative who makes them is by definition not respectable.)**

There is tension between being fair and speaking the truth, but one can suspect that Thomas and Obama had a bit of a boost, without making race central to one’s critique of them. After all, Clarence Thomas has been on the court for over twenty years; what his qualifications were at the time of his appointment, and the reasons for the appointment, aren’t very relevant to evaluating his performance when we have legal opinions we can look at.

Most black people are Democrats, and so liberals have no reason to accuse them of ingratitude or of not deserving their achievements.  Blake presents Justice Sonya Sotomayor, for instance, as a model minority in contrast with Thomas, (she votes as she should, and her record does not therefore require his “analysis” and “explanation.”)  Taboo prevents conservatives from accusing prominent black people of not deserving their position.  So in most cases, the system preserves a kind of civility.  Conservative blacks, however, are not protected by any taboo against racially-charged liberal attacks.

In any case, Blake thinks it would be most natural for a black Justice, because affirmative action has benefited him personally, to vote to hold affirmative action Constitutional, regardless of his views of the merits of the Constitutional arguments.


Speaking of the Constitution, Blake’s next complaint about Thomas is that he embraces an originalist view of the Constitution “when the framers would have considered him a slave.”  This is in the first place a non sequitur.  Originalism is a school of Constitutional interpretation.  What does the correct interpretation of a document have to do with the wisdom of its framers or ratifiers?  Or is the suggestion that Thomas should not attempt any interpretation of the Constitution, originalist or otherwise, because slavery tainted the document?  In that case, what exactly should he base his rulings on when faced with Constitutional questions?

Moreover, it isn’t true that “the framers” would have considered Clarence Thomas a slave.  This suggests that the framers were a monolithic entity, and that they all would have considered a black person to be, morally speaking, a slave, even if he happened to be free; that they treated slavery as justified, and black freedom as an aberration.  Yet many framers strongly opposed slavery, while many others wanted it eventually gone.  We cannot make general statements about “the framers,” but the document they created merely condoned slavery, more or less silently, while empowering the national government to eventually outlaw the slave trade, as it did under Jefferson.

The three-fifths compromise, which Blake and others see as the Constitution’s moral endorsement of slavery, treating blacks as three-fifths of a person, in fact reads “three-fifths of all other persons,” and was adopted as a compromise about representation, not as some estimate of the moral worth of black people.  It would not have applied to free blacks; it was a person’s slave status, not his status as a black person, which governed his treatment for representation purposes.  If we were going to have slavery, there was no moral reason why slaves should be counted at all for representation purposes, and to the extent they were counted, this was an incentive for states to allow and encourage slavery.

The worst we can say about the Constitution is that, in condoning slavery, it put aside absolute principles and embraced pragmatic, compromise-based stability built on a tolerance of evils.  Many of the framers, we might say today, put aside ideology and broke gridlock to pragmatically get something done. 

The principle they put aside was the idea of natural rights.  Justice Thomas adamantly insists on that principle today, against the urgings of our contemporary pragmatists.


A more obvious but less interesting objection to Blake’s critique of originalism: originalism doesn’t mean we follow the original Constitution, you blithering idiot, it means we interpret the Constitution and its amendments according to their original intent.  So, for instance, the Thirteenth Amendment abolishes slavery, and an originalist would interpret it as doing so, and would thus interpret the Constitution legally in force today as banning slavery.  So, what’s the problem?

Blake acknowledges this argument, and so turns to the argument that Justice Thomas does not interpret the Fourteenth Amendment, which grants everyone equal protection of the laws regardless of race, according to its original intent.  Thus he rather drastically shifts his argument mid-way through.  An academic debater would even say he double-turns himself (originalism is bad.  Justice Thomas isn’t an originalist.  Therefore…Oops!)  The argument is that the original intent of the Fourteenth Amendment’s equal protection guarantee is to help blacks, and affirmative action helps blacks, therefore, affirmative action is consistent with the Fourteenth Amendment. 

This is rather sophistical reasoning from the particular to the general.  It is true that the reason the Fourteenth Amendment was necessary was that blacks did not receive equal protection of the law, and so in that sense it was adopted to help blacks.  But this tells us nothing about whether the goal was helping blacks because they were black, or simply to…provide equal protection of the laws.  It gives us no reason, in other words, to go beyond or even contrary to the text.  Going beyond text for some higher spirit of the Constitution is contrary to originalism as most originalists use the term, and is indeed a guiding idea for many of the schools opposed to originalism.

 * A similar instance was Rush Limbaugh’s comments about Donovan McNabb early in McNabb’s career.  McNabb had been heavily hyped by the media as a kind of great black hope at quarterback, but was off to a poor start in 2003, completing something like 48% of his passes in the early going.  But he had always been an inaccurate passer.  Rush Limbaugh, then beginning an ESPN gig, didn’t see much requiring explanation in his poor start.  “I don’t think he’s been that good from the getgo,” Rush said, arguing that the media overrated him because it was invested in his success. 

This seemed unfair to a lot of people, but I don’t think it’s at the level of what Blake is doing here.  Rush’s point was about the role of race in the media’s portrayal of McNabb, not in his actual career (which is there for us to judge by entirely colorblind measures.)  Rush left race out of the thing itself, the primary reality, McNabb’s career.  He only considered race as it related to perceptions of McNabb’s career- the perceptions that were leading to the question “what’s gone wrong with McNabb,” when in fact McNabb had arguably not been “that good from the getgo.”

Nonetheless, Rush quickly resigned from ESPN, while so far as I can tell two days after the article there is no movement to get Blake removed from CNN. 

** And yet, the taboo against racially charged arguments by conservatives is exploited by liberals who try to link any opposition to Obama’s policies or ideas to opposition to his race.  This leads to obvious questions about whether, for instance, John McCain could have gone after Obama more aggressively had Obama been white, and thus fuels skepticism that he won on entirely meritocratic grounds.