I'm Sorry, Did Someone Say Reyes Has Character Issues?

I just read an article (while procrastinating from editing my philosophy essay due in 158 minutes) arguing that Jose Reyes' character issues (which, of course, compare unfavorably to the God of Intangibles Derek Jeter) are a price worth paying for his on-field production. Never mind that that's absolutely right, Reyes' pure production on the baseball diamond would be worth just about any amount of unpleasant character. He was on pace for a 9-win season this year, prior to injury. But since when did Jose Reyes become someone with character issues?

Jose Reyes

Reyes has played nine years with the New York Mets so far. He may or may not play for them again. Here's a sample of how some of the numbers he's put up rank in team history, and how he might move up if he stays or move down if he leaves.

Bill O'Reilly on the Daily Show

He and Jon Stewart have an enjoyably affable rapport, there is no denying it. But I found O'Reilly to be less worth watching this time than in his past appearances. He wasn't really debating Jon, just spouting talking points in a mechanistic fashion (Solyndra! $16 muffins! Job creators!). Meh. But he did say one thing I found interesting, namely that he wouldn't mind paying a 40% tax rate if the federal government would just stop wasting so much money. That's where Solyndra and the muffins came up, and of course, he's wrong/lying about both of those on the merits. But I think the argument is interesting in and of itself, because it suggests that it's not actually about economic incentives at all.

The Fate of National League Batting Champions

Jose Reyes recorded 181 base hits in 537 at-bats during the 2011 Major League season, for a batting average of .337. The next highest batting average by a player with enough at-bats to qualify was Ryan Braun's .332 (Braun went 0-4 tonight, validating to some extent Reyes' strategy of bunt-and-run). Jose Reyes, New York Mets shortstop and leadoff hitter, is your 2011 National League batting champion.

Just for fun, let's consider the fate of other recent National League batting champions. It's not great:

• 2010 champion Carlos Gonzalez (COL LF, .336) saw his average decline to a career-average-ish .295 this year, though his power and walk-drawing skills, if anything, improved. He did play in slightly fewer games this year, and overall was worth just half as many wins above replacement this year (2.6) as last year (5.0). However, it's way too soon to tell if this is a protracted decline or just the fact that you don't have a career year every year.
• 2009 champion Hanley Ramirez (FLA SS, .342) saw his average drop to .300 last year, and plummet all the way to .243 this year. He's collapsed since winning his batting title. WAR numbers for the last three years: 7.2, 3.7, 0.4. I hope Reyes does not decide to emulate Hanley's post-batting-title performance.
• 2008 champion Chipper Jones (ATL 3B, .364) hasn't been nearly the player he used to be after winning his title. Over the four years ending in '08, his lowest average was .295, lowest OBP .409, lowest SLG .556, lowest HR 21. He was really good. Since then, his high in average is .278, OBP .388, SLG .478, HR 18. His WAR numbers were 6.6 in '08, 7.9 in '07, but just 2.4, 3.2, and 3.0 since then. He's still a good player, unlike Hanley, but he's no longer a superstar-level player.
• 2007 champion Matt Holliday (COL LF, .340) has done just fine, thank you very much. Since winning his title, he's hit .311/.395/.527. No problems there. In fact, his OPS+ with the St. Louis Cardinals has been 154, higher than the 144 he posted in his batting-champion year. Admittedly he's been averaging just 4.8 WAR/year as opposed to the 7.3 mark he put up in '07, but you can't do 7.3 every year and 4.8 is still all-star level play.
• 2006 champion Freddy Sanchez (PIT UT, .344) is a somewhat strange case. He won his batting title as a utility player with no one position all his own. In that '06 season he was worth 5.5 WAR. Since then, aggregate, he's been worth 6.4 WAR. In five years. The weird thing is that it's hard to call this a decline, since he was never that good before '06. But he sure as hell hasn't showed the same batting-champ form subsequently.
• 2005 champion Derrek Lee (CHC 1B, .335) has seen some ups and downs since his triple-crown-threat '05. Since then, he's hit .289/.367/.485, with highs of .317/.400/.579 and lows of .260/.323/.428. He's averaged just 2.2 WAR per year, down from the 3.0 WAR/year from 2000 to 2005. Some years he looks like a bust, like the year right after winning the crown when he only had 200 plate appearances. Other years, like 2007 and 2009, he's looked just fine. So it's hard to say.

Overall, since Barry Bonds last led the league in hitting the National League batting champions have had a somewhat difficult time maintaining their form. Here's hoping Reyes bucks that trend, and that he does it in a Mets uniform.

Things I Did Not Know

Jose Reyes has the most stolen bases by the age-28 season of any shortstop of all time. And he has the second-most stolen bases since 1901 of any infielder, behind only Eddie Collins. Extending that back to 1871, John McGraw, George Davis, and Jack Doyle were also ahead of him. But all four of the guys ahead of him on that list started younger than Reyes did, so if we limit it to the first nine seasons and younger than 29, which is the time period Reyes has worked in, he's second all-time among infielders in stolen bases to John McGraw... by one. So if he steals one more base this season, he'd tie the record. Two more steals before the season ends, and he would set the all-time record for steals by an infielder prior to their age-29 season or their 10th year in the majors. Pretty impressive, if you ask me.

R.A. Dickey is Good, Continued

Here are the pitchers who, according to baseball-reference.com, have accumulated more wins above replacement in 2010 and 2011 combined than R.A. Dickey of the Mets: Roy Halladay, Clayton Kershaw, Cole Hamels, Ubaldo Jimenez, Josh Johnson, Tim Hudson, Tim Lincecum, and Ian Kennedy. Those guys are aces, as is Matt Cain, right behind Dickey, and Cliff Lee, right behind Cain, who's only been in the NL one of those two years. Chris Carpenter, the Cardinals' ace, pitched 80 more innings than Dickey but accumulated 1.4 fewer wins than Dickey. R.A. Dickey is, in other words, an ace. And the Mets will hopefully have another, even better ace, Johan Santana, in their rotation next year. Santana/Dickey is, in other words, a nasty top of the rotation. Not quite Halladay-Lee-Hamels nasty, but pretty nasty. Meanwhile, Mike Pelfrey was worth 4 WAR in these two years, and Dillon Gee worth 2.3 in just over one year. Jonathan Niese was just worth 1 WAR in these two years, but there are reasons to think he'll improve. We could be looking at a rotation next year worth ~16 WAR, which is just 7 wins worse than the Phillies' historically-good rotation. That ain't bad.

Originalism and the Dictionary Flip-Flop

Antonin Scalia believes the Constitution's language must be interpreted in keeping with the original public meaning of the text. That is to say, he believes that the Constitution is what was ratified, as understood by the ratifiers, and nothing else. Okay, fine: I can see his argument, actually. But looking at a couple of examples of his application of that theory reveals what's so wrong about the way he puts it into practice. In DC v. Heller, the recent case establishing for the first time ever an individual constitutional right to gun ownership, Scalia has to defend against what is, I admit, one of the relatively more frivolous challenges to originalism. We on the left like to say that, if the Constitution means today what it meant in 1789 or 1791 or whenever a given amendment was ratified, why shouldn't the 2nd Amendment only protect 1791-era weaponry? After all, the idea that this was a right to carry handguns or automatic weapons or whatever was not the original public meaning of the amendment, was it? Well, Scalia says, you're doing it wrong. The proper method is to look in 1790-era dictionaries under the word "arms," which give you a definition about implements used for violence and self-defense.

But then we have a problem. Because, you see, Scalia also thinks that the phrase "cruel and unusual punishment" only means those punishments that 1791 Americans thought were cruel and unusual. He does not direct us to a dictionary for the meaning of the words "cruel," "unusual," and "punishment," and then try to understand the meaning of the phrase through that lens. No, he just wants to run down a litany: was hanging okay? Yep. Were the stocks okay? Yep. Was flogging okay? Well, here he wavers, admitting that while the answer is yes, he himself, along with other "faint-hearted" originalists, would probably "compromise" and agree that public flogging is off limits. But see the problem: he's moving back and forth between the dictionary method and the application method, between looking at what the words meant at the time and looking at what consequences they had at the time. And it sure looks like he's picking and choosing his method, as well as when to get "faint-hearted," just based on his own personal policy preferences. He likes guns, so of course it's absurd to protect only 1791-era guns. But he also likes punishments, so he only wants to prohibit punishments that were considered cruel and unusual in 1791. Except for some punishments, which he doesn't like, so he'll wimp out of actually applying his doctrine there. His opinion changes, his method changes. I just don't see how to interpret this other than by saying, this theory is a load of bull, Nino Scalia is just voting for his own policy preferences. He is, in other words, legislating from the bench, the exact thing that he loves to chide liberals for doing.

R.A. Dickey is Good

I've sometimes been of the opinion that the Mets should try to get a #2-style starting pitcher for next year. I'm reconsidering that opinion, because I think they already have one: R.A. Dickey. In 376 innings with the Mets prior to today's game, his ERA is 3.11, for a 122 adjusted ERA. That's good. He's been worth 7.8 wins above replacement in just under two seasons in his revitalized knuckeballer stage. A full season of Johan Santana at his real best is about 6 wins, by comparison, so Dickey's 4-win seasons are only a little bit below that. And, of course, he retired the first 15 Phillies today, taking his no-hit bid through 6.1 innings. Santana, Dickey, Niese, Gee, Pelfrey: actually, I think those guys (if Santana's healthy and effective) are all average to above-average at their position in the rotation. No need to change things up, especially if those dollars can be better spent on Mr. Reyes.

The Curious Case of West Virginia

And no, I'm not talking about the weird way in which it got admitted to the Union. I'm talking about the strange pattern it followed as it gradually stopped thinking that it was a northern state, and started thinking like a southern state. Here's my analysis: West Virginia is closely connected to three states, Ohio, Kentucky, and Virginia. I don't think the connection to Maryland or Pennsylvania is nearly as strong. So, let's look at the difference between its presidential voting and that of those three states in each election since its creation. If we do, a very interesting pattern emerges. From 1864 through 1936, the closest of these three states to West Virginia was Ohio twelve out of nineteen elections. On average the WV-OH difference was just 8.8% in this span, compared to a 14.9% difference with Kentucky and a 19.9% difference with Virginia. During this period, West Virginia thought it was a northern state. Then something flipped. From 1940 through 1980, Kentucky was the closest state to West Virginia nine out of eleven times, differing by an average of just 5.2%, compared to a 12.4% differential for Ohio and a 16.0% gap for Virginia. Now Kentucky was thinking like an inland southern state, not a northern state.

Since then it's gotten a little bit complicated: we've had three Ohio elections, two Virginia and two Kentucky. Meanwhile, the average gap is 9.8% for Kentucky, 10.7% for Ohio, and 14.3% for Virginia. I'm not sure exactly what's been going on, but part of the confusion is doubtless because the party of northern liberals nominated a southern moderate during two of those elections. In 2008 West Virginia was right alongside Kentucky in radically opposing Obama, differing by just 3%, while Ohio and Virginia supported Obama and had gaps more like 18% or 19%. One other thing I note is that there was a bit of a transition period in the flip I observe in the previous paragraph. From 1924 through 1956, the difference between Kentucky and West Virginia was under 10% in every election, averaging a paltry 2.4%. And while Ohio 'won' all six elections from 1892 through 1912, and Kentucky 'won' the five consecutive elections from 1940 through 1956, they split the six elections from 1916 through 1936 three apiece.

So what we see here is that, after seceding from the Confederacy and joining the Union, West Virginia originally thought it was a northern state. It wanted nothing to do with its Confederate progenitor, and didn't even really agree much with its neighboring fellow border state. But then, at around the time the shift from Southern conservative Democrats and Northern liberal Republicans to the other way around was just beginning, West Virginia started to realize that it wasn't, actually, a northern state. It still wasn't Virginia, but now it was perhaps more aligned with Kentucky, so similar in demographics and geographic situation. More recently, things have gotten a little bit more confusing, as (among other things) Virginia proper has stopped being so certain that it's a Southern state. Right now it feels like in the long term Virginia may wind up being the most liberal of these states, with Kentucky and West Virginia the most conservative. It's a funny path this odd little state has taken, I'd say.

Punishing the Innocent and Our Criminal Justice System

I agree with just about every word of Matt Yglesias' post on innocence and the death penalty. We shouldn't execute anyone, including those guilty of the worst offenses known to man, and we shouldn't even be imprisoning innocent people. But I think there's a line in that post that hints at something much bigger and deeply interesting, and disgusting:

The prevailing wisdom seems to be that underfunding public defender officers is somehow “tough on crime” as if railroading innocent people is a close substitute for punishing guilty ones.

Think about that for a minute, because I think it's true. A lot of people in this country, and especially those on the right, do seem to think that railroading innocent people is a close substitute for punishing guilty ones. This manifests itself in all sorts of ways beyond underfunding the legal aid system, as well as the rest of the justice system: law & order conservatives oppose efforts to empower the defense side of our adversarial system, despite the fact that the premise of the adversarial system is that two teams roughly equal in strength and each dedicated to proving their side right will ultimately discover the truth by seeing which team wins. (In practice we make prosecutors' offices stronger than the defense usually is, but also try to make it less committed to winning and more committed to truth, but still.) Reducing the power of the defense to make its case gets you lots of innocent people convicted. And I claim that conservatives who, let's say, don't care much about the horror of punishing the innocent per se should still want to avoid convicting lots of innocent people. Furthermore, I claim that the fact that they don't tells you a lot about their underlying view of what the criminal justice system is and what it does and what it should do, none of it pretty.

Troy Davis

So, the main thing to say is that it's horrible, a tragedy, an atrocity, one of the worst miscarriages of justice I've ever heard of, and kind of disgusts me with the entire American criminal justice system. I'm also proud to live in two states that don't have the death penalty, and even prouder to have contributed to making that so in New Jersey. Last night was one of my least favorite experiences ever.*

(I wrote this part yesterday, Thursday, but then stalled because of lots of work to do and I'm only getting around to finishing this tonight. I'm not changing the time frame, though.)

But I want to do a little more than just say that. I think there is one very specific lesson to draw from the whole Troy Davis thing, and I think it would be nice if we were to draw it as a nation.

The Benefit of a Failed Perry Candidacy

Rick Perry is giving off a strong impression of being Not Ready For Prime Time. That would please me immensely if he were already the Republican nominee; unfortunately, the whole point of these debates is to give Republican voters a chance not to nominate people like Perry who can be charismatic or whatever but fail miserably on substance, and it kind of looks like that's working. But I still think that the Perry candidacy can be very helpful in one very specific way: making Mitt Romney look less moderate. Apparently in last night's debate, Romney attacked Perry on Texas' policy of letting illegal immigrant children go to state college at in-state discount tuition. Perry, for his part, defended his position in a way that will probably not go over well with Republican voters. But what I'm looking at here is that Romney is trying to find opportunities to position himself to the right of Rick Perry. Great. I have a feeling that Latino voters, who probably agree with Perry that "if you say that we should not educate children who have come into our state for no other reason than they’ve been brought there by no fault of their own, I don’t think you have a heart," will remember that Romney decided to curry favor with Republican voters by taking the hardest of hard lines on immigration. I have a feeling that same dynamic will play out on other issues: every time Romney tries to defend his right flank against attacks from Perry, or tries to loop around and hit Perry's right flank, he makes himself less electable. And I'll take that if I can get it.

Elizabeth Warren 2016!

I'm probably crazy to think this, for a variety of reasons (Andrew Cuomo is still the frontrunner, she'd be 67 at the time, best-case-scenario she'd only have been a Senator for four years, etc.) but reading Elizabeth Warren's quote about the philosophical argument behind progressive taxation and hearing all sorts of liberals get really excited about her is making me wonder whether a Warren campaign for President in 2016 would be entirely out of place, or entirely a lost cause. I continue to think that as soon as there is next a viable (a.k.a. electable), reasonably liberal female Democratic presidential candidate, we ought to nominate her. Those of us on the left have been looking for someone to make the case for philosophical liberalism in a strong, charismatic fashion. Anyway, it's just a thought.

If she doesn't run for President, though, I love the idea of getting her into this Senate seat. The way I see it, there are two informally-defined positions that have descended through the ages of American history. One is the Conservative Champion. John Calhoun was the first notable Conservative Champion, but his mantle has subsequently been taken up by people like Strom Thurmond. I'm a little bit uncertain about the intermediate links in that chain, but that's not the case for the other side of the isle, the Liberal Champion. I can see an argument for someone like Jefferson as the progenitor of that role, although since Jefferson was wrong about a lot of things in a kind of conservative fashion I'm a little reluctant to do so. People like Henry Clay and Daniel Webster filled this role in the antebellum era. Most recently this mantle was worn for a very long time by Ted Kennedy. Right now we don't have one, at least not on a higher scale than Dennis Kucinich. Well, not only would Elizabeth Warren be one, but she do it from the very same Senate seat as Clay, Webster, Kennedies Ted and Jack, and Charles Sumner. There have been Liberal Champions who didn't hold that Senate seat, like Bob LaFollette, but Massachusetts' Class 1 Senate seat has been the historical home of the carrier of the liberal torch. It'll be nice to have it filled by another member of that proud tradition, instead of the patheticness that is Scott Brown.

Success

On November 3rd, 2010, the day after the Republican midterm victory, I proposed that Obama's strategy over the next two years should consist of two phases: in Phase One, he would imitate the folk image of Bill Clinton, moving to the center, trying to meet Republicans half-way, come together and get things done. Good, sensible, bipartisan things, like cutting the deficit. But since the Republicans would never agree to any of Obama's proposals, there would always be Phase Two: abandon the efforts at compromise, and start hammering Republicans for their refusal to play ball, tacking to the folk image of Harry Truman. The point of this strategy was that the economy will suck in November 2012, people usually blame the President when the economy sucks, and we want people not to be in a highly anti-Obama mood in November 2012. What he needed, therefore, was some way to convince people that the reason the government wasn't doing more to help was the Republicans, and the only way to do this was to a) establish that the Republicans were incapable of compromise, and then b) hammer them for it. Thus, the Clinton-to-Truman strategy.

And it looks to me a lot like Obama is following that strategy. Not only did he give a no-compromising-here jobs speech last week, proposing a host of center-to-center-left ideas for helping the economy/people that are known to poll well and daring Republicans to oppose them, but his deficit speech today was genuinely left-wing as well. Neither has the remotest chance of passage, at least not in this Congress, so he's done with the Clinton phase. The Truman phase has already begun in his lower-profile appearances, as he's taken to criticizing Republicans' inability to put country ahead of party, and it will really get into high gear once Republican refusal to play along with these two new proposals becomes written in stone. Until I see Obama failing to execute the Truman side of the plan, I'm prepared to give him the benefit of the doubt, because, after all, it looks a lot like he's doing what I told him to do.

But Ezra Klein, among others, does not seem to be making that connection. He acts completely as though Obama's efforts at being the most reasonable man in the room were genuinely aimed at getting the Grand Bargain, not the first part of an effort to pin the failure of the Grand Bargain, as well as everything else, on the Republicans. And I say, great! After all, the entire point of this two-part strategy is to get people to buy into the first half, so that when the pivot comes, it will be framed as "Obama tried to work with Republicans, but their sheer unwillingness to work with him has finally convinced him to abandon the effort." That's the message we need low-information swing voters to hear. They won't hear it from Fox News; I don't know what they're hearing from Fox News, but I assume it isn't the White House's ideal messaging. So all things considered, it's good if that's the spin that's being put on this Administration change of course even by people who think they should've realized that Republicans weren't playing in good faith months ago. Hell, maybe I shouldn't even be writing this, as it gives away the game, but whatever, I've written this theory of mine up before. The point is, it looks like the Administration successfully managed to convince at least some high-information types that they were genuine in Phase One. Let's hope that helps with the target audience.

Why Don't Republicans Disagree?

A very interesting post from Matt Yglesias about the lack of difference between Romney and Perry on the issues brings up a point I've thought about on occasion. I have sometimes expressed the view (though not necessarily in any recorded form) that the Democratic Party, and liberals generally, have a much more cohesive philosophy than conservatives and Republicans, namely kindness. We on the left generally like the idea of kindness, and of kindness as a big part of what guides public policy. On the other hand, the Republican Party seems split into lots of different pieces. I have this very distinct memory of a FiveThirtyEight post on the subject, that I have subsequently tried and failed to find, in which Nate Silver breaks down the Republican Party into a) religious conservatives; b) big business; c) foreign policy hawks; d) libertarians; and e) racists, with the last two groups being the smallest, a) providing the voters, b) providing the money, and c) providing a lot of the upper-level personnel. These groups, his article notes, have fairly little in common with one another. d) ought to dislike a) and c), while incidentally agreeing with b) to some degree; b) has obvious interests aligned with c) but not with a); a) ought to dislike c); and everyone ought to dislike e). So why don't we see more splits within the Republican Party? Shouldn't we see things where big business wants one thing, but the religious right wants another, and they get into a big ol' shouting match over it?

It Is What It Is

That's Tiger Woods' catchphrase, or one of them at least, usually spoken in response to something bad, like a round of golf. I've taken to quoting it occasionally, usually in an at-least-somewhat-joking tone of voice. But I think that there are some important principles that I would refer to as the "It Is What It Is" principle, and I just happened across one of them in my Philosophy of Law textbook. Specifically, one thing about moral thinking is that you don't need to sort people into two boxes--"Good" vs. "Bad," or "Guilty" vs. "Innocent"--because there are no consequences. If we think someone is in the moral wrong, solely within the confines of moral philosophy we stop there, thinking they are in the moral wrong. In legal thinking, however, or in theological thinking in judgmental theologies, or any other context at all where we need to visit discrete consequences on people, we do need to decide. Good or bad, guilty or innocent, wrong or right, constitutional or invalid. Choices need be made, and so on the tough, borderline cases, we need to expend a lot of effort deciding which side of the infinitely thin line we're on.

But if we're just being philosophers, just thinking about things and forming opinions without in any sense trying to invoke consequences based on our conclusion, we have a different option available to us: we can say that it's a difficult, borderline case! What's stopping us? It's a point I made in this post, and I liked seeing it in my philosophy textbook.

The Mets Could Win 90 Games Next Year

With very little effort on the part of GM Sandy Alderson, actually. Here are my projections for the front-line components of the team next year, making one big assumption that you'll see, in terms of WAR numbers. Notice that a replacement-level team wins something like 51.84 games, so we want nearly 40 WAR to produce a 90-win season. Here are my numbers:

Position Players:

David Wright (3B) 4.5 wins, Jose Reyes (SS) 4 wins, Ike Davis (1B) 4 wins, Angel Pagan (CF) 3 wins, Jason Bay (LF) 2.5 wins, Josh Thole (C) 1 win, Ruben Tejada (2B) 1 win, Lucas Duda (RF) 1 win

Starting Pitchers:

Johan Santana (LHP) 6 wins, R.A. Dickey (RHP) 4 wins, Jon Niese (LHP) 1.5 wins, Dillon Gee (RHP) 1.5 wins, Mike Pelfrey (RHP) 1.5 wins

That adds up to 21 WAR from the eight position players, and 14.5 WAR from the starting pitchers, for a total of 35.5 WAR and 87.34 wins. That excludes anything resembling a bullpen or a bench. This year, in which the bullpen has been god-awful, the bullpen's managed to contribute 2.6 WAR. I think that's pretty much a lower-bound estimate for a bullpen's contribution. Even if we take away the 1.3 WAR from Francisco Rodriguez, we still get another 1.3 WAR from the bullpen (a.k.a. awfulness), so that's 88.6 wins. Then we can add in the fact that Daniel Murphy's on the bench, which could be another 1-2 wins, getting us to approximately ninety wins.

What assumptions have I made? Well, the biggest two are that Reyes will be back with the team and that Santana will return, pitch a full season, and be effective on a Johan Santana level. Neither is even remotely guaranteed, though I'm hopeful on both counts. Offensively I think I'm underestimating Reyes (and if he stays healthy I know I am) and probably also Wright. You can argue that I'm being generous to Pagan, Bay, and Davis, on the grounds that Ike is unproven and the other two have been struggling rather badly of late. I think that I might be underestimating Thole, Tejada, and Duda. Overall I think it's a wash. In terms of pitching, the other thing that stands out is Dickey as a 4-win pitcher, but that's justified by his numbers with the Mets so far in his rejuvenated knuckeballer era. Both Niese and Gee, I think, have the potential to exceed the 1.5-win level I've put them at. And again, I'm assuming a bullpen that's awful on the level we've been accustomed to this year. Overall I think I'm being rather fair, and I've got us at the ninety-win level. It's debatable whether the Braves will win 90 games this year (they're 86-65 as we speak), and if they lose the Wild Card they probably won't. Overall I think there's no particular reason to think the Mets can't contend next year, if they sign Jose Reyes.

The Countermajoritarian Difficulty's Countermajoritarian Difficulty

Alexander Bickel's big idea was that judicial review was problematic because countermajoritarian and, therefore, he argued, undemocratic. This idea is called the countermajoritarian difficulty, and it is the basis of just about all criticism of the institution of judicial review, though (especially prior to when he wrote about and named it) not always by that name. But it strikes me that the idea of the countermajoritarian difficulty has a difficulty of its own, along rather similar lines. Here's the set-up: suppose that a bunch of advocates of majoritarianism got together and conspired to set up a referendum on judicial review, in which all the citizens of the nation could vote to abolish judicial review once and for all. And now let's suppose that referendum fails.

What now? A majority just voted to keep the institution of judicial review. Is review, then, undemocratic? Well, it is certainly countermajoritarian on its own terms. But abolishing it is at least as undemocratic, since, uh, it's rather directly counter the expressed will of the majority. The question, in other words, for Bickel and his followers is whether the people are empowered, collectively through at-least-majoritarian institutions, to constitute countermajoritarian institutions to govern them, because they desire for those institutions to exist? When posed this way, I think the answer is obviously yes!

A further question, of course, is whether the people have in fact expressed a majority desire to have judicial review. There's never been a referendum like the one I described, of course. But we did ratify the Constitution, and both the Federalist Papers and Brutus' response to them assumed that judicial review was a feature of the proposed Constitution. When Andrew Jackson said, "John Marshall has made his decision, now let him enforce it!", people did not generally like that. Hell, he himself recognized how problematic it was, and backed down from it a few months later. When Franklin Roosevelt, the most popular President ever with enormous Congressional majorities, made the most concerted attack on judicial independence in our nation's history, he failed. Miserably. It damaged his reputation, it damaged his Presidency. It's something like Number Two on the list of Bad Things About FDR (written not by a Republican of the current decade-or-so), and only that because the whole Japanese-internment thing was pretty effing bad. The Brown case prompted massive resistance throughout the South, but the Court is still standing. Roe v. Wade has been controversial in a way that has managed to simmer for nearly forty years now, and the Court is still standing. And after all of these controversial decisions, the judiciary routinely ranks much, much higher in public opinion polls of confidence in institutions than either the President or, especially, Congress. All of this is fairly compelling evidence that We, the People like the institution of judicial review quite a lot. And I can't see why its opponents from the perspective of majoritarian philosophy aren't compelled to address this point before they even get started, since, if my conclusion about the public's desires is accurate, a challenge to judicial review from majoritarian grounds is invalid on its own premises.

Judicial Supremacy

Notice a theme here? Yeah, I'm doing readings about judicial review for class.

One criticism of judicial supremacy, the idea that the courts and the Supreme Court in particular are the sole authority as to the meaning of the Constitution, is presented as follows in the reading:

On a view of judicial supremacy, perhaps best exemplified by the Boerne case, the Court’s interpretation of the meaning of the Constitution cannot be corrected by any of the other branches, including by direct attempts by Congress to reverse Supreme Court decisions by statute as opposed to be constitutional amendment. One problem with an understanding of the Court as a supreme interpreter is that it seems to suggest that even when the Court interprets the Constitution in a way that is flawed (think, for instance, of Plessy v. Ferguson, establishing the principle that segregation is consistent with the Equal Protection Clause of the Fourteenth Amendment), its decisions still must be respected as final and authoritative interpretations.

To my mind this line of thinking illustrates what's wrong with the way we think about these things. In Plessy, the Supreme Court said something which was very, very wrong. I think it is very probably that, had Congress chosen to pass a law between Plessy and Brown declaring segregation unconstitutional and outlawing it both at the federal and state levels, the Court would have upheld that law under Section Five of the 14th Amendment, authorizing Congress to enforce the Amendment through appropriate legislation. Congress, of course, did not do this. A Presidential attempt to do the same would have run afoul of the fact that this enforcement power is given to Congress. But note that an attempt by an individual citizen to change the ruling could, of course, succeed, because one ultimately did. Saying that, as a matter of governmental structure, the Supreme Court is the sole final arbiter of the Constitution does not mean that its pronouncements must be considered to be correct by the general citizenry, only that they must be considered to be binding. Binding, moreover, in the particular sense that one can expect that the Court will be willing to enforce its pronouncement again if it has occasion to, and therefore binding only as long as the Court actually does agree with its own pronouncements.

A better example, I think, is the whole flag-burning incident. Congress passed a law. The Court struck it down. Congress then passed the same law again. The Court struck it down, again, and with more than a little bit of vexation at Congress' antics. If the fundamental logic of judicial review is appropriate, and if the Court's initial pronouncement was correct, then it should of course have struck down the second law. The Constitution, after all, had not changed. Frequently when we talk about the Constitution we mean the parts of the machinery of government created by the Constitution that can and frequently do come before a court of law. In that sphere, because the judgment of a court is binding in any particular case, the considered opinion of the judiciary as to the meaning of the document is of course supreme. Congress is perfectly well entitled to continue passing the flag-burning law as long as it wants, and the President is entitled to try to enforce it. But the people indicted under it will be perfectly entitled to sue in the federal courts, alleging that the law is (still) unconstitutional. And, being right about that, they will win. And then they will have to be released without a stain on their character. Because Congress and the President understand that this is how it would play out, they don't bother trying. But it's perfectly well within their rights to try, if they really wanted to.

Again, all of this just strikes me as profoundly fundamental and simple. I wonder why other people don't see it as such.

Alexander Hamilton: Still Winning

It is not that hard to see the first few decades of American politics as a big battle between Alexander Hamilton and Thomas Jefferson. They were the leading thinkers of the two earliest political parties, Hamilton's Federalists and Jefferson's Democratic-Republicans. They had many opposing views about government, politics, and the new American Constitution. Their feuding, as Secretaries of State and the Treasury in the Washington cabinet, was what created the two factions that went on to become the First Party System. And it's easy to think that Jefferson won. After all, when you think of Thomas Jefferson you think of the hero of democratic ideals who won the Revolution of 1800 and who is on Mount Rushmore. When you think of Alexander Hamilton, on the other hand, you probably think mainly of the quasi-monarchist who was obsessed with economics and died in a stupid duel with Jefferson's Vice-President in 1801. And after Jefferson defeated Hamilton's Federalists in the 1800 election, the Federalists never won the Presidency back, instead petering out about two decades later and giving the D-R's a period of one-party rule. But here's the thing: not only was Hamilton right about just about everything that he and Jefferson disagreed about, but he also won. Overwhelmingly.

Because what matters, ultimately, is not the letters they put after the name of the guy in the White House. It's the trajectory of American public policy. And almost all of the policies Hamilton supported and Jefferson opposed ultimately became mainstream. Hell, the reason the Federalists died out was largely that the Republicans had decided to steal all of their good ideas (the American system of tariffs/internal improvements/national bank being a primary example). But the specific reason that I'm writing this post today is that I'm reading Hamilton's Federalist No. 78, his defense of judicial review. Because the thing is, people like judicial review. They accept it as natural and proper. How else could the branch of the government that commands neither purse nor sword, and depends on the executive for enforcements of the only power it does wield, its judgment, manage to become so powerful? The Supreme Court is powerful because every time it tries to make itself more powerful the people approve, and every time someone else tries to make it less powerful the people disapprove. The Court is way more powerful than Jefferson would have been okay with; indeed, it probably was so in his own time. That's because Hamilton was right about everything, and the American people, over time, have realized that. Even if they haven't realized that they've realized it.

Judicial Review: It's not that hard, is it?

I'm currently reading an excerpt from Alexander Bickel's book The Least Dangerous Branch, which is largely an attack on the idea of the power of judicial review, for my civil liberties/democratic legal theory class. The passage I'm reading and getting infuriated with at present is one in which Bickel asks why, even if we accept that a law contrary to the Constitution is invalid, the courts ought have the power to invalidate it. He goes through this long, long process of asking why this power might rest in the courts, which I'm not even to the end of yet, but it strikes me that it's really not very hard.

If Congress purports to pass a law X which is, in "truth," unconstitutional, then it is not actually a law. From time to time the occasion may arise for a court, possibly the Supreme Court, to decide a case or controversy where the issues that must be raised by the case in order to decide which side should triumph involve the question of whether that law is a valid law or not. In such a case, in order to do its basic, fundamental job, that Court must decide whether it thinks that law X is constitutional. If it decides that it is unconstitutional, then it must grant victory in the case to the party whose argument depends on the law's being invalid. Going forward, under the principles of stare decisis, potential plaintiffs have a reasonable expectation that, should another case arise involving the question of whether law X is valid, that court and all courts inferior to it will hold that law X is not valid. When we say that a law has been negated by judicial review, this is what we mean: that everyone in the country can expect that, should the question come before a court, that court will say that the law is invalid, and render its decision accordingly.

Note that this logic, which strikes me as extremely sound, does not argue against departmentalism, Thomas Jefferson's view that Congress, the courts, and the President can all interpret the Constitution independently, with no branch having the final say. The point here is that the courts will interpret the Constitution as they must to do their own job. What gives the judiciary the appearance of being the "final" arbiter of the Constitution is the simple fact that, if you stipulate that either Congress or the President has acted in a way contrary to the Constitution, it is extremely likely that someone somewhere will have a valid case or controversy they can bring before the courts. Once the question gets through the door of a courtroom, the parties to that particular case are bound by the judgment of the courts. Therefore, it is extremely rare that anyone can act in a way that someone cannot make the judiciary's business. In situations where it happens that there's no way to make a judicial case out of the matter (as, for instance, a potential decision by the Obama Administration that the debt ceiling was unconstitutional), quite defensibly we arrive at a departmentalist arrangement.

All of this doesn't even address the main questions of whether judicial review is undemocratic or not, which it is, Bickel's objections to the contrary. We're just talking about whether courts have it in our own system, and it strikes me that you need to go through some contortions to avoid the conclusion that they do, according to the logic I've sketched out above.

Splitting the Electoral College

I know the Republicans aren't playing this game in good faith or anything, but just for fun let's look and see what the results of the 2008 Presidential election would have been if every state had allocated its electoral votes in the Maine/Nebraska manner, i.e. 2 for the winner of the state and then 1 for the winner of each Congressional district. As it happens, Obama would have won 301 electoral votes, compared to 237 for John McCain. That's a lot narrower than his actual 365-to-173 win. However, it represents Obama taking a slightly larger percentage of total electoral votes, 55.9%, than he received in actual votes, where he got just 52.9%. It's even an increase over his two-party-vote performance; dropping third-party votes, Obama won just 53.7% of the remainder. So a split electoral college in 2008 would've produced an overall result very similar to the popular vote numbers, with a slight boost to the winner, instead of the lopsided 68% win that the (mostly) winner-take-all version gave him. I quite honestly have no problem running things this way instead of the way we do it, but the point is that we need to do it uniformly. Also, in this case I suppose I would have even more of a problem with gerrymandering than I do currently; in fact, I even think switching to this kind of system would make me more interested in the arguments that Baker v. Carr and its progeny would then require an extension to prohibit gerrymandering. When I have time later, I hope to take a look at the '04 and '00 elections and see if a split electoral college would've made any difference (I bet it would have in 2000).

Of course, the real solution is just to ditch the electoral college altogether, either through the National Popular Vote Compact or, preferably, through a Constitutional Amendment. I wonder if the spectacle of Republican state legislatures screwing with their electoral votes might be enough to give one or both of those projects the boost they need to succeed.

What Is A Constitution?

Pennsylvania Republicans, who control both Houses of the state legislature and the governorship, have a "bold Democrat-screwing electoral plan" to stop allocating their state's electoral votes on a winner-take-all basis. Instead, they would allocate eighteen of twenty on the basis of individual Congressional district-level results, and just two for the overall winner of the state. Throw in some aggressive gerrymandering, and Barack Obama could win Pennsylvania fairly handily and still have Rick Perry taking 12 of its 20 EV's. There are other Democratic-leaning states where Republicans are in a position to pull this same stunt if they want to. Add it all up and it could be a genuine though modest impediment to Obama's re-election efforts.

But let's go a step further. After all, the power of state legislatures to award their electoral votes is more or less unlimited (until they decide to hold an election to award the votes, in which case under Bush v. Gore's least controversial holding they are bound by the Equal Protection Clause). States with Republican legislatures could decide to award all of their votes to the Republican and just do away with the pesky election-having business. And, hey! Republicans control state legislatures in states with over 270 electoral votes. So those Republican state legislators could, if they wanted to, just declare victory in the Presidential election right now.

Or could they, I wonder? Suppose they tried this stunt. Would the result be that Rick Perry, after winning the Republican primaries next spring, just coasted to victory secure in the knowledge that, hey, he'd already won? I don't really think so. Most of the unwritten rules that Republicans have decided to just start ignoring over the past few decades are at a sub-constitutional level: you don't filibuster everything just because you can, you don't take the debt ceiling vote hostage just because you can, etc. But while most of our constitution is written, in a sense one of the most important provisions of it is just a UK-style tradition: holding a more-or-less direct election of our President. It's a tradition that only really started after the Civil War, prior to which South Carolina had never held an election for its electors, but since that time no state has ever allocated its EVs without holding an election whose result was binding. As a result we have a system in which we get to vote for our President; indeed, I think most people would mention this as one of the most prominent features of the American system of government. And it's an entirely unwritten rule, at the federal level at least.

So what if Republicans decided to defect from this tradition? I think there's a very real chance that on some level people would conclude that they didn't have the right or the power to do this. Who, in all honesty, would treat Rick Perry as the legitimate President if that was how he took office? Yes, it followed the written constitutional procedures, but it would violate all our notions of how this country has been run for a century and a half. And it's not like people elected these Republican legislators on a platform of "stop holding Presidential elections." I doubt that the EV-splitting scheme is quite radical enough to trigger this public withholding of legitimacy, but I'm pretty sure that if the Republicans start trying to just win the election by default, they won't get away with it.

Why Republicans Would Still Like Reagan

We hear a lot, especially from liberals and tonight from the Daily Show, that today's Republican Party is so crazy that even Ronald Reagan would be eaten alive for his deviations from conservative orthodoxy. Back when the RNC was pushing an ideological purity test (that had Reagan's name in the title!), people on the left liked to point out that the Reagan Administration failed on something like seven out of ten requirements. And it's true that Reagan did things like raising taxes and giving amnesty to illegal immigrants. But I think it's wrong to think that he wouldn't be able to fit into today's Republican Party. The same is true of Richard Nixon (aside from the whole crazy-paranoiac-crook thing), whose administration was even more "liberal" than Reagan's. Here's a little analogy that explains why I think this is so.

The Republican Party, Still Massively Sick

Apparently Ron Paul just said something about how a 30-year-old who has a freak accident and requires massive medical care should've been planning ahead and is responsible for himself. When Wolf Blitzer asked whether society should let that young man die, various audience members were shouting out in support of letting him die. These people are sick.

Voting and Consent: Core vs. Periphery

My general approach to the question of whether one has an obligation to follow the law is that voting confers such an obligation on you, and that I think various ad hoc arguments can extend that obligation to include everyone in society. My general reliance on voting met a fair amount of resistance in class today, and in conversation with friends afterward, so in the spirit of college and philosophy courses and open-mindedness and all, I'll try to work through some of these objections and see where I come out. The strongest criticism of my viewpoint on this issue goes like this: even if we accept that voting entails accepting the legitimacy of the government and therefore an obligation to obey the law, why do I claim that having ever voted confers that obligation for life? Why shouldn't it be that one can vote, accept an obligation to obey the law, and then subsequently decide you don't like that obligation and stop voting?

Bad Positional Thinking

A Fangraphs article about Mark Reynolds' awful defense this year ends by asking the question of whether the Orioles should make Reynolds the DH next year, when Vladimir Guerrero is gone. The conclusion is no, because, while his defense has been worth -22 runs above average this year, his positional adjustment for a year spent mostly at third base is approximately 0 runs while his positional adjustment as a DH would be around, uh, -22 runs. In general I'm okay with the philosophy behind this positional adjustment, but I think here they've got it all wrong. This is the kind of mistake you make by viewing "replacement" in the abstract while making GM- or manager-type decisions (rather than HOF-voter decisions), when you could be viewing replacement as meaning specific replacements.

If the Orioles' options are to have Reynolds at 3B and Player X as DH, where Player X is a league-average hitter for that position, or to have Reynolds as the DH and Player Y at 3B, where Player Y is a league-average third baseman both at the plate and in the field, then the above analysis is appropriate. But presumably the Orioles know who would be their Player X, and who their Player Y. In this case the question is whether having Player X's bat in the lineup instead of Player Y's would be worth more to the team than having Player Y manning third base instead of Mark Reynolds. Or maybe we're really talking about Player Z, who will be in the lineup regardless but could either DH or play the field, either at third or filling a hole vacated by another player who shifts over to third in Reynolds' absence. If that's the case, then we're not talking about offense at all, and the only question is whether the defensive alignment with Reynolds would be better or worse than the one without him. It might be the case that, awful defense notwithstanding, Reynolds needs to be playing third base, because if you take him off the field then someone like Chin-lung Hu would have to be a starting player, but it might not. Someone's going to be DH'ing, and someone will play third base. The only question is who ultimately gets into the lineup and how well the people playing the field can play their positions.

A Jason Bay Solution

This year with the Mets, Jason Bay has hit .308/.421/.519 with a home run every twenty at-bats and an extra-base hit every nine-and-a-half. Oh wait. That's what he's done against left-handed pitching. That's pretty good! Of course, in three times as many at-bats against right-handers, he's hit a paltry .223/.287/.326. That's awful. Now let's make things a little more interesting: Kirk Nieuwenhuis, at the head of the line of Mets minor-league outfielders, is left-handed. So is Fernando Martinez, a long-time top prospect. So is Lucas Duda, currently manning the corner of Citi Field's spacious outfield opposite to Bay. That really, really looks like a situation that calls out for some platooning, doesn't it? I've been advocating the release of Bay, but honestly I think with numbers like those against lefties we'd be much better served just making him share some playing time. It's just a thought.

In fact, it's a thought that gives me a pretty decent idea of what to do with the entire offensive side of the team. You'd have catchers Thole and Paulino, infielders Davis, Tejada, Reyes, Wright, Murphy, and outfielders Bay, Pagan, Duda, and Nieuwenhuis. That's 11 players. There are two people who can play every position. With very little sacrifice of quality any which way, you could get down to one righty (Wright) against a right-handed starter or two lefties (Davis and Duda, both of whom handle lefties well) against a left-handed one. Overall it's four righties, five lefties, and two switch-hitters. There's room for two more bench players. As far as I'm concerned Nick Evans ought be one of them, and I'd love to see Scott Hairston back, though I imagine there are plenty of competent thirteenth-man types. I think it adds up to a pretty compelling offense, honestly, and not even a very expensive one.

Can the Mets Afford Reyes? Yes, Easily, and Then Some

If the Mets want to take a maximally inactive approach this offseason, then their team next year will look something like this:

C: Josh Thole                     SP1: Johan Santana
1B: Ike Davis                    SP2: Jon Niese
2B: Daniel Murphy                    SP3: R.A. Dickey
SS: Ruben Tejada                    SP4: Dillon Gee
3B: David Wright                    SP5: Mike Pelfrey
LF: Jason Bay                    
CF: Angel Pagan                    CL: Bobby Parnell
RF: Lucas Duda                   

The bench and bullpen, meanwhile, will be filled with a bunch of rather low-level players from within the organization. My rough estimate is that such a team would have a payroll of approximately $86 million. There's a little bit of further downsizing they could do, too, if they wanted to, like replacing arbitration cases Angel Pagan and Mike Pelfrey with current minor-leaguers like Kirk Nieuwenhuis and Chris Schwinden, that could shave another few millions.

Voting as Sufficient, Con't

I just read a healthy-sized essay by John Rawls on the question of what creates an obligation to obey the law. But here's my problem: he's stipulating that we're talking about constitutional democracy, and indeed, in most of the scenarios he sketches out the person who has to decide whether or not they are obliged to follow a law they disagree with has in fact voted. A typical example: suppose you have a referendum or direct-democratic process for choosing between two income tax schemes, Person X votes for Law A, but the majority votes for Law B and therefore Law B is enacted. But it seems to me that, in such a situation, there is nothing more to say about whether Person X has an obligation to obey the law. Presumably constitutional provisions specify that, as a result of this referendum, the tax code that receives majority support will be enacted. If you vote in that referendum, you know that, or at least you ought to know that. Therefore, by participating in the process, you accept that. Honestly, what's so hard about this? I'm open to arguments that the obligation of someone who has never voted requires a more complex theory, but it simply does not need explaining why someone much obey a law that passes over their vote to the contrary. If "social contract" means nothing else, it means this.

Obama's Speech

Was awesome. That's not much of a surprise; his speeches are usually awesome, and this one, which was set up as Obama playing offense and making a big, bold proposal, was primed to be especially so. My attitude going into the speech was that, whatever Obama himself might say to the contrary, this was entirely political grandstanding, the fulcrum of his Clinton-to-Truman pivot. As a purely political speech, I thought it was great. He made his proposal, he spent a lot of time hammering home the message that these are sensible ideas to help people, and he included a bit of conditional pounding. As in, he said to the Republicans, "you guys are f@cking nuts if you don't pass this," which sets him up to respond to their not passing it by saying simply, "you guys are f@cking nuts." As I've said to some people over the past couple of days being back at school, if Obama does not start making this pivot, and hard, after Republicans inevitably refuse to pass any component of this plan, then I'm going to start getting very disillusioned with him very quickly.

However, events of the past twelve-or-so hours have got me thinking that maybe it isn't as inevitable as it might be. Republicans, including not just Mr. Oh-Please-Can't-I-Make-A-Deal Boehner but also Mr. Oh-No-You-Most-Certainly-Cannot Cantor, are talking in terms of finding common ground and looking for elements of Obama's proposals that they can agree on. That surprises me. In particular, it doesn't feel like they're setting themselves up very well for total refusal down the line. I hope Obama can use the Republicans' refusal, if it comes, as a sledgehammer to crush them with, and in particular as a tool to get people to blame them and not him for general world-suckitude come November '12, but I would much prefer to that scenario of embracing economic failure and trying to pin the blame on his opponents a world in which we can actually make the world better. So if they'll let him pass some of this plan, then great! What Obama most definitely should not do, however, is engage in bargaining with them. If they'll let him pass all the plan, then pass all the plan. If they'll let him pass some of the plan, then pass some of the plan. But don't get into trading specific spending cuts for this plan. The American Jobs Act (an unsurpassable name, for what it's worth!) includes a provision "paying for" itself by instructing the supercommittee to make additional deficit reductions that pay for it. That's all the offsetting you need. If Republicans aren't okay with that, then they can bugger off, and we go back to the original plan of hammering their asses for obstructionism and economic sabotage. Don't get bogged down, and it'll be hard to mess this up.

Obeying the Law, Authority, and Might vs. Right

My Philosophy of Law class has started up this week, and the first question we are pondering is whether there exists a general obligation to obey the law. Specifically, as my textbook puts it, is there a general obligation to obey every law, even laws that do not happen to coincide with an independent moral commandment? It wouldn't mean that it was morally right to obey every law if that obligation did exist, just that there was some moral force in favor of obedience. Maybe there would be a stronger moral force arguing for disobedience, for instance in the case of the civil rights movement, but there's some, admittedly inferior reason to obey the law even so.

The textbook's conclusion, at least during the introduction, appears to be no. They consider several arguments, and find all of them lacking. They consider consequentialist arguments, social-contract arguments, and finally John Rawls' fairness argument, and reject them each in turn. I do feel that, especially in considering the consequentialist arguments, they get a little forgetful of the fact that finding such an obligation to follow the law does not actually mean that one should follow the law; by the original premise of the question it strikes me that if one can show that on a consequentialist "pro/con" diagram on the question, "should I follow the law?" there is always some non-negligible entry in the "pro" column, you've found a general consequentialist moral impetus in favor of obedience. But I digress, because I think the most fruitful line of inquiry is in the social-contract category. I also think that asking the question the way my book does, "should one obey every law?", is rather confusing. It's better to ask, why should I follow any law?

The Republican Debates: Yes, They Really Are That Bad

I just got done watching this Republican debate, which was a new experience for me. For the first three debates, I simply followed the snarky left-wing liveblogs of the debates, thereby sparing myself the painful experience of seeing Republicans saying things. But hey, I'm back at school with people to watch with, so I gave it a shot. And the big takeaway for me was, yes, they really are that bad. The vast majority of actual passages about policy that any of these people spoke were just gibberish, in terms of the real merits of the issue. And that's on top of the fact that these people's professed value systems are something verging on wicked. So let no one ever accuse me again of simply opposing the Republicans because I haven't given them a chance: I spent two whole hours just now enduring Messrs. Perry, Romney, Paul, Cain, Gingrich, Huntsman, and Santorum, as well as Ms. Bachmann, and they are at least as bad as I would've expected. I shudder to think if any one of these people becomes President...