Tag Archives: law

Six Unworthy Amendments

Six Amendments is a disappointment.

I took issue with Justice Stevens’s proposed amendments in my first post on the book, before it was released. I stand by my criticisms of the campaign finance, gun control, and death penalty amendments – they are poorly written, and for the most part would not provide the clarity judges need to make consistent, predictable rulings. (I actually have more of a problem with his campaign finance amendment after reading the book – any reasonable reading seems to allow the government to prohibit publishing books, if it so chooses, so long as the book is plausibly connected to an election.)

The other three (gerrymandering, sovereign immunity, and commandeering) have more distinct problems: I’m not convinced that the anti-commandeering rule is as harmful as Stevens claims, and he made no effort to present the arguments against his position, so I don’t fell informed enough to make a decision. Most importantly, I’m not clear what effect (if any) his amendment would have on the scope of Congress’s ability to act outside its enumerated powers.

The argument against states’ sovereign immunity (unrelated to qualified immunity, as it turns out) has basically the same problem as the commandeering argument: there’s no analysis of the policy value of sovereign immunity. That said, it’s probably one of the strongest of his proposals.

The gerrymandering proposal is likely the strongest proposal – my only serious objection is that it is inelegantly drafted. By explicitly stating that strengthening one party’s control is not a valid, neutral purpose, he leaves a huge number of equally poisonous angles (i.e. the protection of incumbents) open to litigation, if not acceptance.

Predictably, since the amendments are sloppily drafted, there’s no redeeming the rest of the book. Stevens goes into some depth on the history of how the law reached its current state (arguing, in each case, that dissents he wrote or joined would have prevented this outcome), but as I noted, he spends little or no time discussing the wide variety of possible solutions to each problem, and the arguments for or against each one. Even worse, he spends no time arguing for his phrasing by addressing different ways his proposed text might be interpreted by judges in the future. Even for a rank purposivist such as Stevens, the flaws and ambiguities in his text should be clear and important.

Overall, the book is unambitious, and unworthy of its premise. When one promises to explain “How and Why We Should Change the Constitution,” especially when the promisor is a former Supreme Court Justice with a broad-ranging knowledge of the legal issues facing the country, it seems reasonable to assume the pool of possible topics is wider than “dissents I’m still mad weren’t majority opinions.” Stevens didn’t follow through on that at all.


In which I contradict a Supreme Court Justice (ret), without having been able to read his complete argument.

As the title suggests, this post is entirely speculative, and will probably be wrong on several counts. But that’s never stopped me before.

Former Supreme Court Justice John Paul Stevens has a new book coming out in April: “Six Amendments: How and Why We Should Change the Constitution.” I wasn’t particularly impressed with Stevens’s last book (Five Chiefs), but I’m intrigued by this one – it should benefit from having a narrower focus, rather than reflecting on a long judicial career.

Author Josh Blackman has a review copy of the book and posted the six proposed amendments here. He hasn’t posted a response to the actual arguments in the book yet, since he wants to read it first.

I don’t have that kind of sense, so here are my quick reactions to the text as presented in Blackman’s post:

  1. “Commandeering” of state officials: Apparently a reference to Printz v. US, which I’m not familiar with, so no comments.
  2. Gerrymandering: Protecting elections is an appealing (and predicted) target, and I guess this would probably do some good. Complaints: I’d like to see some explicit requirement that districts be created by a body with no stake in their composition, and the “enhancing or preserving the political power of the party in control of the state government” language is probably too narrow; the necessity of including it suggests weakness in the rest of the proposed text.
  3. Campaign finance: Another obvious target. I like this avenue better than trying to insert clarifying text directly into the First Amendment, and Stevens (thankfully) doesn’t fall into the trap of only focusing on corporate spending. But the language here is ambiguous, and seems either entirely too broad (broad enough to limit protected political speech to standing on a soapbox in the park), or to re-create exactly the hard money/soft money distinction that used to exist, where only speech that explicitly endorsed or opposed a particular candidate in a particular election was regulated. That might not be a bad regime to have, compared to our other options, but I’m not sure it would really change the importance of fundraising in elections, and the speech costs (depending on where Congress sets limits) might be substantial.
  4. Sovereign immunity: Not an area I know well, but I’d be curious about whether this has any effect on determinations of qualified immunity. I’d love to see an amendment that clarified and expanded the opportunities for Bivens suits (suits for damages against state employees for violations of an individual’s constitutional rights).
  5. The death penalty: Again, the topic was predicted – Five Chiefs includes substantial discussion of Stevens’s personal journey on the death penalty. Inserting this into the 8th Amendment is the wrong way to go, though – as worded, this basically inserts a factual finding that capital punishment is cruel and unusual – which may be true, but isn’t really the kind of thing that should be inserted into the constitution. It could(?) also drive judges to a particular interpretation of “unusual” – perhaps one which takes more account of international norms, since the death penalty is not unusual in the US. Would be cleaner & better practice to insert a separate amendment, “Neither the federal government, nor any state or subsidiary government of a state, shall execute any person in punishment for any crime, including Treason.”
  6. The Second Amendment: Obviously any change is DOA, but more importantly, this phrasing is stupid. Placing gun rights in the context of militias is outdated, and accomplishes nothing except perpetuating the confusion caused by associating gun rights with militias.More importantly, I don’t think tying gun rights to service in a militia clears up any interpretive ambiguity. What defines service in a militia? If Wyoming wants to create a volunteer militia that anyone can join by just signing up online, may it do so? If it does, can the Feds then regulate the weapons available to such a militia? Aren’t militias traditionally a matter for state regulation?Seems like a better phrasing would be to delete the militia entirely, and insert text that recognizes some sort of individual right to bear arms (in line with Heller and McDonald) – but which explicitly allows for rational-basis regulation: “The right of persons to keep and bear arms, in accordance with such rational laws and regulations as Congress and the States may create, shall not be infringed.” (Basically, if I’ve written that coherently, people who choose to carry weapons in accordance with the law should be protected from arbitrary government interference with their activities on that basis alone.)

Other notes: I’m disappointed not to see something dealing with executive powers, especially in wartime. If there’s any chance that we will continue in a state of perpetual semi-declared war (and there is), and if Presidents will be tempted to use that war to disregard the basic rights and liberties of citizens and noncitizens alike (they will), we ought to have clearer constitutional boundaries on the conduct of those wars.

I also would have liked to see Stevens address how the Fourth Amendment might be changed or clarified, to respond to the possibility of perpetual, suspicionless surveillance. The Court has muddled through, to a certain extent, but technological advances seem to have so broadened the realm of the possible that an explicit protection from generalized surveillance, even in “public,” would be worth including.

Machine Ethics Isn’t Actually a Problem

At least, it’s not in any way a new one.

A while ago, The Economist ran an article posing the question of how we should deal with drones and other artificial intelligences that have to make ethical decisions. Alex Tabarrok pointed out that the question is not entirely hypothetical, with the emergence of Google’s self-driving car: a truly self-driving vehicle has to decide what to do if, in a variation of the classic “trolley problem,” the car was hurtling toward a crowd of pedestrians and faced the choice to kill them or turn and kill just one pedestrian.

The issue is interesting on its face, but I don’t think the question really stands up to much additional thought. It rests on a basic misunderstanding of the nature of ethics and the nature of computers, at least as computers currently exist.

It’s useful to think about the disconnect by analogy to regulatory systems. There are two basic ways to construct, for example, financial regulations: they can be rules-based or principles-based.

A rules-based regime might say “Systemically important institutions must maintain an additional cash capital buffer equal to 3.1% of total demand deposits plus 0.8% of all debts with maturities less than 180 days. A bank or other regulated entity is considered ‘systemically important’ and subject to additional scrutiny if it has total liabilities greater than $38 billion, or is a counterparty to more than 10% of the notional value of all contracts in any of the derivative classes named in subsections c-f, below.” The rule is algorithmic–if you follow the rules precisely, you are in compliance, and there’s no uncertainty involved.

A principles-based regulatory regime, by contrast, might say “Systemically important institutions (those institutions whose default would pose a substantial risk of financial sector contagion) must maintain an additional capital buffer sufficient to maintain their solvency and liquidity during times of heightened financial stress.”* In this case, there aren’t clear lines between “OK” and “bad.” What one person honestly believes constitutes compliance may seem to another person to be in clear violation. (Obviously, there’s more room to fudge the rules to your own advantage, too, but leave that aside for the moment.)

Ethics is clearly a system of principles-based regulation. There are no readily applied algorithms that spit out answers–even once the principles are established, individuals have to use judgement to apply abstractions to specific scenarios.

That leads us to the central problem: computers do not (to my knowledge) exercise judgement. They are sets of algorithms. While we can create a computer that appears to parse the meaning of words, it does so based on a search mechanism that finds information, not based on a logical application of abstractions. (No, Toronto is still not a city in the United States.) As long as that is the case, computers don’t have any real independence–and therefore, do not make decisions that could give them moral culpability. We would not hold a misprogramed calculator responsible for poor performance on a math test–that would be the fault of the calculator’s programmer (and the unprepared math student). Similarly, we can’t hold a drone responsible for shooting what it registered as a threat, even if that threat was actually a bouncy castle.

To the extent that the emergence of more autonomously-operated technology poses any ethical problems, those problems just require us to come to some agreement on existing moral questions. The trolley problem is still the trolley problem; the decision of whether to fire a missile at a suspected insurgent based on limited information remains the same; we still have to decide how much collateral damage is acceptable. But any sort of widespread use of technologies programmed with an answer set for those situations would seem to require a set of answers that an overwhelming majority of people would find acceptable, to avoid public uproar. I suspect that widely acceptable answers sets would include a bias toward inaction, which poses its own ethical problems.**

The next question is who bears ultimate responsibility for the decisions of programmers, and what kind of accountability mechanisms are appropriate.  Translating principles-based systems into algorithms is imprecise and unpredictable–we saw that with the financial crisis. If algorithms are more often making decisions of moral relevance, we need to decide whether someone can be sent to jail for a program whose unpredicted outcomes we find objectionable. Presumably the programmer’s responsibility for a wrongful death lies somewhere between that of totally uninvolved bystander and that of an actual murderer. That seems like the new and interesting question here.

*(Yes, I made both of those passages up. Yes, I had fun doing so. I hope they illustrate the differences.)

**A commenter on Tabarrok’s blog post also notes that Google’s engineers and programmers will be more focused on avoiding the situation altogether than deciding whether to kill three grannies or one infant. That is as it should be. This probably deserves a post in itself, but in general I propose that one’s ethical duty in a real-life trolley scenario is to break the rules of the ethical dilemma (to beat the Kobayashi Maru), rather than to accept the deaths of the five workers, or of the fat man.

A new candidate for the pantheon of crap jurisprudence

Today, in Florence v. Board of Chosen Freeholders, the Supreme Court held that detention officials may strip-search any person arrested for any reason, if that person is being held in the same room as other people. They offered as rationale only the notion that judges do not know how to run a jail, and shouldn’t underestimate the difficulty of doing so. Given that, it would apparently be irresponsible to require any level of reasonable suspicion before a strip search is allowed.

I’d been waiting for this decision for a while, and when I heard the ruling I really hoped there was more to this case. I respect most of the conservative Justices (those in the majority here), particularly Roberts and Scalia, and I really wanted there to be some obscure legal justification that would validate that respect.

There isn’t. If there was, SCOTUSBlog’s incomparable Lyle Denniston would have found it.The majority abdicated its responsibility to enforce (or even, it seems, to read) the Fourth Amendment. There is no other word for this decision than “disgrace.” Justices Thomas, Alito, Scalia, Roberts, and most of all Kennedy, you should be ashamed.

The one bright spot I see in this particular case is that the ruling is amenable to legislative remedy–it articulates merely a constitutional permission, rather than a constitutional duty. Right-minded states may enact statutory prohibitions on unreasonable searches (i.e., searches that are not founded on any reasonable suspicion). The federal government, it seems, already follows a more rational set of rules. Florence may, therefore, end up being less destructive than other recent misapplications of the law (I refer to Citizens United, which appears to require remedy by constitutional amendment). It remains, however, a gross miscarriage of justice, and may be expected to take its place in the pantheon of the Court’s most absurd and embarrassing decisions.