Four Levels of Originalism

In my constitutional law class we have been discussing at various points the concept of "originalism," and as it quite frequent with that word the discussion can get very easily confused. There are, after all, lots of different concepts that go by the name, or invoke the concept of "original" in some way. This post will propose a classification of types of originalism, with some discussion of how legitimate each is. The inspiration for my classification scheme comes from something from my undergrad con-law class with Steve Calabresi, where he presented five modes of interpretation on a scale from most to least binding: text, structure, originalist stuff, precedent, and policy. (I'm actually not sure which order the originalist stuff and precedent were in, but it will shortly become irrelevant.) The idea is that, in trying to answer any constitutional question, you start by looking at the text. If that solves your problem, great, but at this late hour at least it probably doesn't. To resolve ambiguity, you might then ask which solution would be most consistent with the overall structure of the Constitution. If that is of no help, you consider what the Court has said on the matter, or ones like it, before. At some point in the process you examine the history from around the enactment of the relevant constitutional provisions; that's the originalist part. And if none of those sources of actual authority are of any help, if it is truly a 50/50 proposition which side ought prevail in the trial based on the actual law of the Constitution, you are free to choose whichever side ought prevail on policy grounds. If and only if, of course.

So here's my theory: originalist inquiries aren't another level of that scale. Rather, each of the other four levels can be informed by originalist/historical inquiry, and as the level of authority declines with each step from text to structure to precedent to policy, so the level of legitimacy of originalism declines. Let's examine each variety in turn.

The Role of Law

I was at a talk about the life and times of Robert Bork today and, while I don't think I should quote it in too much detail, the speaker did mention several times that Bork was constantly looking for some kind of grand unifying theory for law. Specifically he seems to have spent some time trying to devise a comprehensive theory of when government may legitimately coerce its subjects. That's a very interesting subject. In a way it's the bedrock of political theory, since the legitimate use of force is a very large part of what distinguishes the government from the rest of society. But there's something it isn't, and I think (from some of the other stuff the speaker said about Bork's growing disillusionment) it's something Bork realized it isn't.

It isn't a matter for lawyers and legal institutions to decide.

Let me put that another way. If a country establishes a written democratic constitution that creates a set of political institutions, including a group of courts which will constitute a legal system. That legal system, and the lawyers and judges who constitute it, have a lot of important roles in the functioning of society. Deciding when the government may legitimately coerce its citizens is not one of them. The people have already decided that, in large part, in creating their constitution. It presumably will list some ways in which the government cannot coerce people, or maybe it will instead list certain ways in which the government can coerce people and imply that it mayn't in other cases. Those decisions are binding on the courts. In particular, any exercise of power by the government which the constitution either permits or fails to prohibit (depending on what the background default principle is) must be upheld and, specifically, enforced by the courts. They must be the instruments of that very coercion. They can't come up with some theory of government legitimacy independent from the constitution which gives them life and then refuse to apply laws which run afoul of it. Of course constitutions are ambiguous so a judiciary in interpreting the limits established by the constitution will need to do some political theory, but it must take the constitution as its postulate in doing so.

Now, this isn't to say that people who have legal training and expertise shouldn't think about these issues. Legal training and expertise can be obviously relevant in certain ways. And these deep issues of political theory don't stop being relevant once you write your constitution, not only because you can always amend it. The courts may not prevent the government from doing something just because they think it violates some important principle of political theory independent from the written constitution, but there is an institution that can: the legislature. It's easy. Just don't write laws that do it. If the polity comes to the conclusion that some power which its constitution grants to the government is an improper one which the government should not exercise, it can rather easily elect legislators who will vote not to exercise that power. And people who are lawyers can and should contribute to the public discourse over what kinds of government coercion can be legitimate. What they shouldn't do is start thinking that in their institutional capacity they should act upon these same kinds of philosophizing. That may sound like a slightly weird thing to say for someone who's a big fan of courts being quite expansive in their interpretations of constitutional provisions, but I do believe in rooting such interpretations pretty directly either in the text of the constitution or in the structure of the government that is created by the text.

Now, I don't know how much Bork ever advocated doing this kind of thing that I'm criticizing, how much he tried to substitute his personal theories of political legitimacy for those of the American constitution and political processes. I'm not an expert on Bork's life, and right now I don't feel like making a lengthy empirical examination of how much conservatives do this kind of thing as opposed to liberals, or whatever. It's just a thought I had.

Too Narrow and Too Broad

This post is inspired from reading the beginning of another amicus brief from Perry, this one by several law professors, just in response to a certain little point they make. In certain legal contexts but most notably First Amendment jurisprudence, there is a concept of "overbreadth." This is the idea that, even if there is a sufficiently strong justification for some apparently speech-suppressing law or government action, that law/action might still be unconstitutional if it has effects beyond its justification. To take a comical example, suppose that anti-black hate speech had been held to be unprotected speech, i.e. that preventing hate speech against people of African ancestry had been held to be a sufficient justification for the suppression of speech. A law prohibiting all white people from ever speaking, on the grounds that nearly all anti-black hate speech comes from white people, would be overbroad. It would accomplish its goal, yes, and the goal is an acceptable one (in this scenario, though not in the real U.S. courts), but it would then also accomplish a whole lot of other stuff not included in the acceptable goal, so it would be obviously invalid.

There is also the concept of a law's being underbroad, although I don't know if that word is ever used. The idea here is that, sometimes, a law in pursuit of a sufficient justifying interest will be invalid if it fails actually to accomplish that interest. This only occurs when the law is acting in an area where strong justification is required, and might be most at home in Equal Protection jurisprudence. In a way the principle I discussed in my last post was an example of this idea: in an insult-without-injury scenario we can be reasonably sure that, whatever the justification proffered for the policy might be, it is in fact under-broad to accomplish that policy, since it accomplishes no material effect at all. The principle basically is, even if your aims are sufficiently noble, if your proposed policy both fails to actually attain those goals and involves significant injury to some constitutional right or value we will find it invalid. For a good metaphor, suppose that there is some dam, or really any wall of a large container of water, in which there is a large hole through which water is pouring. Someone proposes some means to stop up the hole, which would have a great cost to implement. If that method will not actually plug the hole, if the plug is too narrow to fill the hole, and we can know that for sure, then we should not pay that cost for no actual benefit, even though the proposal resembles an action to fix a genuine problem.

Note that this is distinct from the principle, which is false and which the Court has repudiated in so many words, under which the government would be prohibited from only solving part of a problem. It may do that, but as the means it chooses becomes more and more constitutionally problematic we become more and more insistent that it at least come close to solving the problem entirely, and if it will not actually solve the problem at all we should not hesitate long to say "stop!"

So a law can be either too broad or not broad enough. Can it be both? Definitely. Lots and lots of laws (or, hopefully, lots and lots of hypothetical laws) are both too narrow and too broad. The brief I'm reading describes gay marriage bans as one example, relative to their purported justifications in terms of protecting traditional marriage. Too broad because they involve substantial violations unrelated to that goal; too narrow because they don't actually do anything to achieve that goal. But, hang on... isn't there a shorter way of saying "too narrow and too broad"? Why yes, yes there is. Here are some possibilities: "wrong," "bad," "terrible." If you're doing a coloring-book and you're supposed to color in a certain area red, and you draw a big red patch on some completely different part of the page, your red patch is too broad because it covers a lot of area outside the lines, but also too narrow because it misses a lot of area inside the lines. It is, in other words, in the wrong place. (Not that I endorse prescriptivist coloring-book norms, mind you.) One way to think about this is in terms of "type I" and "type II" errors in the statistical context. A too-broad-and-too-narrow policy is one with both very high "false positive" errors, applications to places where it shouldn't be applied, and very high "false negative" errors, non-applications to places where it should be applied. Normally we think of these two errors as being balanced against each other; if you want less of one, you might need to accept more of the other. But these policies don't bother having less of either! They just have lots of errors, lots of falseness. They get it wrong, and apply themselves in all the wrong places. They suck!

Of course, those words only apply to an analysis of the policy relative to its purported justification. There's something at which anti-gay marriage policies are excellent. Perhaps lots of things. Expressing the sense of the community that gay people are inferior, for instance. They do a great job of that. But they do a terrible job of "protecting traditional marriage," if you don't just interpret that phrase as a cipher for "keeping the gays out because they're icky and we don't like them." In fact, any time you see a law that appears to be both too broad and too narrow you should be tipped off that the purported justifications are not the real ones. Probably the people enacting it were not idiots, which means there probably is some other motivation behind the law, in light of which it won't look so bad. That inference gets stronger, of course, as the relative degree of the two-way miss gets higher. All laws are slightly over-broad and over-narrow, because life is imperfect. There might even be pretty substantial errors on both sides and yet have the law be a good-faith effort to address the problem it claims to address, either because that problem is hard or because the legislators or executive officers just made good-faith mistakes or miscalculations about the effects of their policy. (That last explanation might not be enough to avert a constitutional challenge if we're in a problematic area.) But when a policy has substantial effects unrelated to its purported justification and does virtually nothing to advance that purported justification, we will be justified in inferring that there was a hidden agenda behind it, probably aimed at doing whatever it is the law actually does.

Insult and Injury

I've just read the Department of Justice's amicus brief from Hollingsworth v. Perry, the 2013 Supreme Court case in which the Court had an opportunity to declare a constitutional right against discrimination in state marriage laws against same-sex couples, but declined to do so on grounds of a technicality that, let's be honest, they went searching for. In it, the United States government goes through the arguments asserted by the proponents of Proposition 8, the California initiative which spent about four years banning gay marriage in that state before getting tossed out by the lower courts in this case, for why the Proposition is constitutional, and shreds each one of them. It's a tour de force read, as legal briefs go, with a handful of what are basically applause/laugh lines that are quite good. Of course, shredding the arguments of anti-gay marriage advocates is not exactly tough work. But there was one point made a few times in the brief that I thought was very interesting: any argument the petitioners (that's the pro-Prop 8 people) could advance suggesting a material interest in preserving the exclusivity of marriage to straight couples is severely undermined by the fact that California law under Prop 8 did not deny to gay couples with civil unions any of the material legal rights of marriage. It denied only the word "marriage." Therefore, the government argued, even if those asserted interests are legitimate government interests, the Prop 8 law does not serve those interests because it does not prevent gay people from doing the things it is claimed they shouldn't be let do. It only prevents them from getting the state to call what they're doing "marriage."

This gets at one little principle in the Equal Protection Clause that I think is interesting. Call it the "insult without injury principle": any time the state insults or demeans any person without doing them material injury, it will be acting unconstitutionally. I can't really think of any possible exceptions to this rule; it's almost a tautology if you follow the logic far enough. Insults are by definition (or at least by the Google definition I got from a quick search) disrespectful. Respect is one of the hardest words to define in the entire language, in part because we use it to mean so many related but slightly different things. The relevant meaning, I think, is the one about having due regard for the interests of another. To insult someone, then, is to disrespect them, and to disrespect them is to fail to give due regard to their interests in itself. Yes it is symbolic, but a lot of things are symbolic. And, moreover, because there is no injury involved we know that there is no compelling material reason for this insult. Insult without injury is really strong evidence that the insult is being uttered entirely for its own sake. That means that, when it offers an insult, the state is acting for the sole purpose of insulting someone, of being disrespectful and contemptuous. This I hold to be a violation of the Equal Protection Clause, and especially of the first section of the Fourteenth Amendment read as a cohesive whole as it ought to be.

Now, this principle as stated runs the risk of conveying a certain misimpression. The principle features an exception: it covers only those insults which are not accompanied by injuries. This exception could be seen as proving the rule, in the actual sense of that phrase, i.e. as implying that insults that are added to injury are just fine. That is not the case. What is the case, however, is that laws often do injury to the interests of some person or another, so simply showing injury as such cannot be sufficient to establish an Equal Protection Clause violation. Some injuries are violations, some are not. And I could imagine some injuries which the state has a significant interest in imposing upon certain persons which, either necessarily or in practice, convey an insult as well. That could sometimes be justified. For instance one could view the criminal justice system as an example of this: murderers, thieves, rapists etc. are, upon conviction, sent to prison for many years and formally declared criminals. This last part is, arguably, an insult, although I might argue to the contrary. Insulting criminals in this fashion does not violate Equal Protection, since it is a necessary component of the peculiar and necessary negative treatment given to criminals.

So no, Prop 8 would not have been more acceptable had it included material injuries to the legal rights of gay couples. Adding injury to insult does not get you off the Equal Protection hook. But declining to do so is a tell. There are times when the state may injure, and even times when it may injure and insult at the same time, acceptable, so a demonstration of injury or even of insult and injury is not enough all by itself to establish an Equal Protection violation. Because, however, the only possible motive in an insult unaccompanied by more material injury is the naked desire to insult, virtually any time that anyone can show they have been insulted but not injured by the government they will have made the entirety of the case for a constitutional violation.

The Limit to the Pursuit of Happiness

I don't know if this is a particularly original thought but in my torts class today we were discussing the issue of the cost-balance test involved in the negligence standard for liability. The economists' idea is that you want a rule under which activities whose benefits (to any and all affected parties) outweigh their costs will proceed, and activities whose costs outweigh the benefits will not. The negligence standard as applied often acts as a proxy for that intuition. Negligence analysis often acts as a proxy for this kind of analysis, saying that if there would have been a way to avoid the damage the cost of which would be less than that of the damage, there was negligence. But a strict liability standard, wherein the causer of the harm is liable whether they were negligent or not, also results in the same kind of calculus being performed, so long as damages are compensatory only and not punitive. In that case, the potential tortfeasor (that is apparently the word, don't blame me) will balance their own potential benefits against the potential losses that they might cause to others, because those losses will turn into liabilities. If the benefits outweigh the losses, you'll do the thing anyway and pay the damages, and that's a win compared to not doing the thing in the first place.

At some point it came up that this is very different from how the criminal law handles things, and also that the law & economics people haven't always accepted the fact that the criminal law does it very differently. If you commit a crime, let's go with theft for now because it's nice and easy to monetize, and you're found guilty, you don't just pay compensatory damages and walk out of court. Now, you might be supposed to make restitution or something (although that's about removing your own benefit rather than making whole the person you wronged), but mainly you just go to jail for several years. The point of the criminal law is not to get people to weigh the harms to others against their own benefits from committing crimes. The point is to get them not to commit crimes. "But I got so much benefit for it, this expensive jewelry is doing so much more good for me after I stole it than it was for the old rich lady who owned it" is not a defense. And people don't normatively accept it if someone says, well yes this is a crime but I'll just do it anyway and pay the price. Well, most people don't, anyway.

The MPDC's Homicide Clearance Rate and What To Do About a Crime Wave

Matt Yglesias recently tweeted a link to this data from the Metropolitan Police Department of the District of Columbia, showing the city's number of homicides and the clearance rate of those homicides for every year from 2002 through 2011. The really striking part, of course, is the 95.4% closure rate in 2011. That's insane! At the beginning of the period the rate was just 55%. The percent of murders that go unsolved has, in other words, been divided by nine over the last decade in D.C. How did that happen? Did the police get nine times as effective? Or twice as effective, if we look at the yes-solved percentage? Well, that's a somewhat complicated question, and it's tough to know which of the effects at play here are to the credit of the police. But it's clear what is going on here: the MPDC has a certain murder-investigating capacity. Based on these numbers it's somewhere between 110 and 140 cases per year. But the murder rate has been falling like a stone, from 262 homicides in 2002 to just 108 in 2011. The result is that the same total amount of murder-clearing represented a much lower percentage in 2002 than it did in 2011.

Or to put it another way, I had Microsoft Excel calculate trend lines for the plot of both solved and unsolved homicides against total homicides. There's a positive correlation in both cases, of course, but the comparison between the two is an interesting one. Every extra homicide, according to these data, will on average correspond to an extra 0.325 cleared homicides. And the total homicide rate explains 79% of the variance in number of cleared homicides. But every extra homicide, of course, leads to .674 uncleared homicides (after all, it must be one or the other, so the two slopes add up to 1). In this case, though, the R-squared value is 94%. That is to say, based on the data the total murder rate provides an explanation for the changes in the number of unsolved murders which is very nearly complete. We need look basically no further to find out what determines the number of murders which go unsolved in D.C. every year. Oh, and these simple linear trend lines suggest that, if no murders were committed, 63 of them would be solved anyway. That's sixty-three out of zero murders.

Can We Please Stop Saying the Brown Case Was Atextual?

My constitutional law casebook says that Chief Justice Earl Warren's opinion in Brown v. Board of Education ""relied on neither the text nor the "inconclusive" original intent of the Fourteenth Amendment." The latter is certainly true. The former is, I think, pretty clearly false. They suggest that emphasis was placed on sociological inquiries, such as whether segregation as such created a feeling of inferiority among black schoolchildren. Well, yes. Because the thing about the Equal Protection Clause is that, perhaps more than with any other provision of the Constitution, you need to know what's actually going on in order to know how to apply it. Consider the following passage from Brown:

"We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reasons of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment."

That strikes me as pretty direct textual analysis. Segregated schools are inherently unequal; therefore, their creation by law constitutes a denial of the equal protection of the laws, which as the Fourteenth Amendment states in so many words no state may do to any person within its jurisdiction. Case closed, relying only on very literally the exact words of the Amendment in question. The only sticking-point is the factual one, i.e. the claim that separate educational facilities are inherently unequal. Now, you could argue some sort of formalistic test, sort of like the one the Plessy Court used, and say, "look, the law says to both whites and blacks that they cannot attend schools with students from the other race." Or you could do what the Brown Court does, and actually notice the thing where the whole frickin' point of segregation is to keep the black race in a state of inferiority, and that school segregation is arguably the linch-pin of that system. But that choice is not about textualism! In either case you are merely trying to determine whether what's going on in these cases is a denial of the equal protection of the laws, and honestly, once you notice the social facts of Jim Crow, it's just about the world's most straight-forward application of that language.

Now, Plessy is staggeringly atextual, basically saying that of course the Fourteenth Amendment doesn't prohibit segregation, everyone liked segregation just before it was passed and who can suppose they meant to actually change anything? (That's also ahistorical, as anyone who knows anything about the 1860s in this country should know.) This is one of the weird things about originalists, that they claim to be all about the text but when push comes to shove they're always keen to incorporate into the so-called text all the little ways that the country failed to live up to the text right after it was written. But as someone who just happens to share my last name said fifty-three years ago (on the first page of the article no less!), it's obvious that the phrase "no state shall...deny to any person within its jurisdiction the equal protection of the laws" forbids what the Southern states were doing to black people circa 1954, very much including school segregation. Warren spends most of his time establishing that there is real equality here because the Court had previously used the formalist standard to deny that this was so, and Warren needed to give good reason for not following their lead, and because he knew that "if equality then violation" was the most iron-clad inference from the plain text of the Fourteenth Amendment possible.

Who the Hell Are These Phillies?

The Philadelphia Phillies, of late, have been a team with a lot of star players. Ryan Howard. Chase Utley. Jimmy Rollins. Shane Victorino. Carlos Ruiz. Jayson Werth. Pat Burrell. Cole Hamels. Cliff Lee. Roy Halladay. Raul Ibanez. (Okay, that last one is a bit of a joke.) But now... who the hell are these guys? And it's not just that the Phillies are no-names. A lot of teams employ a whole bunch of no-name players in September of a losing year, and if they're not your team you won't know who they are. It's that their names, beyond merely lacking in familiarity, are weird. Here's a list of players off the Phillies' current active roster:

• Darin Ruf
• Cody Asche
• Freddy Galvis
• Kevin Frandsen
• Erik Kratz (yes, Erik with a k and Kratz with a z)
• Pete Orr
• Cameron Rupp (seriously, compare/contrast his name with Ruf. What is that?!)
• Justin De Fratus
• Tyler Cloyd
• Jake Diekman
• Mauricio Robles
• Joe Savery

And that's not even counting Jonathan Papelbon, who is very much a big-name player but whose name is just as weird as any of those guys'. What causes a team to have such a concentration of weird-name dudes all on its roster at the same time? I just don't get it.


UPDATE: It has just come to my attention that the Miami Marlins pitcher who just got the final out against the Mets in the top of the 9th is named Arquimedes Caminero. Okay, they win.

Don't Cite Harlan Against Affirmative Action

Opponents of racial affirmative action like to say that they favor an ideal of "colorblindness," i.e. the idea that the government should never ever be able to base its treatment of someone on a knowledge of their race. Affirmative action, the claim goes, violates this rule, which sounds very much like the very model of a rule against racial discrimination, every bit as much as Jim Crow laws did. Or, as Chief Justice John Roberts infamously put it, "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." And as a kind of supporting precedent for that idea, either in an actual legal-precedent context or just as rhetorical support from a hero of the civil rights movement, people on that side of that issue like to cite the dissenting opinion of Supreme Court Justice John Marshall Harlan from Plessy v. Ferguson. Here are the passages that suggests a kind of color-blindness:

"In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights."

And:

"But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved."

And:

"They [the Reconstruction Amendments] declared, in legal effect, this court has further said, "that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States..."

And:

 "Our Constitution is color-blind, and neither knows nor tolerates classes among our citizens."

That last bit is perhaps the most commonly cited, especially just the first clause. It certainly does sound like it supports a color-blindness standard.

Enforced Commingling

Consider the following paragraph:

"The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinity, a mutual appreciation of each other's merits and a voluntary consent of individuals.

That is, of course, from the majority opinion in Plessy v. Ferguson, one of the worst Supreme Court decisions of all time. And I don't just mean "worst" in a moral sense; the decision is staggeringly wrong, in a purely legal sense. It assumes that the Fourteenth Amendment cannot mean what its plain text would clearly imply, because that thing is just too inconsistent with the prejudices of many but not all people in society. It claims that segregation only "stamps the colored race with a badge of inferiority" because colored people are so damn sensitive, which as Justice Hugo Black would later point out was always ridiculous to any of the actual white supremacists who were responsible for segregation laws in the first place.

And then there's this passage.

Written Constitutions as a Trap for Hypocrisy

This is the first off-shoot of my general contemplation, in the wake of attending a talk by Bruce Ackerman yesterday evening, of what it is about his constitutional and political philosophy that I find so unacceptable that I have felt worthy of being written up. It's a fairly modest point, and not really much related to Ackerman at all except in that he inspires it through his apparent distaste for the idea that the Reconstruction Amendments, particularly the 14th and 15th, really did provide a textual constitutional basis amply sufficient for the 20th century civil rights movement. I don't know for sure whether the particular factor that I am about to discuss contributes to that distaste, but it seems to me that it might in part be motivated by the fact that the framers of the 14th and 15th Amendments were, for the most part, what we would today consider racists. Most of them were also, certainly, sexists and homophobes and religious bigots. In fact, "bigot" is just a good catch-all term to describe the attitudes of nearly every member of the "good" side of the 1860s political clashes, viewed by modern standards (with the possible exception of men like Thaddeus Stevens). To depend on the legacy of these men, these hypocrites who wrote the shining text of the 14th Amendment into the Constitution but who denied the vote to women and who abandoned any efforts to help black people within a few short years of the passage of that Amendment, who may only have been looking for Negro votes in any case, to craft the sweeping societal changes of the Civil Rights Movement could well seem offensive, as tainting the achievements of true egalitarians like Hubert Humphrey, Lyndon Johnson, and (lest we leave out the contributions of African-Americans themselves) Martin Luther King.

Now, I obviously don't find the contrast between the text of the Reconstruction Amendments and the attitudes of those who wrote and passed them particularly unsettling, but it is definitely a striking contrast. Indeed, the same can be said of the original Constitution, which many (though not all) abolitionists, including Frederick Douglass, argued forcefully was an anti-slavery document, even though it certainly contained a few provisions directly supporting the slave regime and though it was universally interpreted as protecting the "domestic institutions" of the Southern states. How did this happen? How did polities whose fundamental values we would today consider so prejudiced and even hateful manage to write these documents which are so open to much more enlightened interpretations than any their framers could have envisioned, or even to demand such interpretations? I think the answer lies in the concept of hypocrisy.

The Pete Rose-ification of Derek Jeter

Derek Jeter's 2013 season is done. It was terrible. He appeared in all of 17 games for the Yankees, during which he hit .190. Yeah, .190. As in, twelve hits in 63 at-bats. Overall slash line of .190/.288/.254, and while the on-base gap is nice, it's not remotely enough to make up for the awful. As if that weren't enough, according to both Fangraphs and Baseball-Reference Jeter managed to put up impressively terrible defensive numbers in those 17 games, costing something like 4 or 5 runs below average. The result is -0.6 fWAR, plus the fact that his replacements have been named Jayson Nix, Luis Cruz, Alberto Gonzalez, Reid Brignac, and Eduardo Nunez. My god Eduardo Nunez is bad. Overall Yankee shortstops not named Derek Jeter have accrued -1.5 fWAR. That's -2.1 fWAR overall when you add Jeter to the mix. And this on a team that's a game or two away from contention. Or, to put it another way, add anything resembling Derek Jeter-as-was to the 2013 Yankees and they would be a playoff team, easily.

Tee hee.

The point here isn't exactly to gloat about how Derek Jeter is awful now, or how it's entirely his fault that the Yankees are going to miss the post-season this year. Those things are true, and they're fun. The point is to make a comparison with another player. Because Jeter, you see, has not been a league-average player in quite a few years. 2009, in fact, was his last year of being actually good. Through the end of that year he had 2747 hits over 9809 plate appearances, a career .317/.388/.459 batting line, a 121 OPS+, and 67.4 bWAR, of which 35.2 were in fact Wins Above Average, despite being a terrible, terrible, terrible defensive shortstop (-187 Defensive Runs Saved). Since then, even including his year-and-a-half resurgence after getting his 3000th hit, he has 569 hits in 2159 plate appearances and a .291/.350/.392 batting line. That's not terrible. In fact, it gives him an OPS+ of 99. Usually being a league-average hitter who plays shortstop is a really good player. But there's that pesky "plays shortstop" thing; DRS pegs Jeter at -47 fielding runs over these four years, during which time Jeter's been in slightly less than three full seasons' worth of games. Combine that with average offense and you're looking at three wins below average, and enough playing time to turn that into 4.2 WAR. The turning-point for Jeter came at age 35, his last actual good season, the last time his offensive production was enough to make up for his legendarily awful defense.

Let's consider another player, a pure hitter type of guy known for "playing the game the right way" or whatever. A guy who spent most of his career as an infielder, though unlike Jeter he moved around the three non-shortstop spots. Like Jeter, however, he wasn't a very good defensive player. Through age 38, his batting line was .312/.381/.432, which (once you account for Yankee Stadium's power boost) is almost identical to Jeter's line through age 35; in fact, his OPS+ was better, at 126. This guy played more than Jeter had, though, getting 12196 plate appearances, so he managed a whopping 3372 hits over those years. He also accrued 80.7 bWAR including 42.5 WAA, and was an above-average player every year except his first two in the big leagues. Then, however, he stopped being very good. For the rest of his career he hit .274/.354/.333, good for just a 92 OPS+ (which was, incidentally, a 99 for the first three of those years, during which he played nearly as much as Jeter has over the last four). Over the rest of his career, this guy was, well, awful. He played first base, and played it badly, so tossing in the mediocre hitting we get -1.3 bWAR. Yeah, that's wins below replacement. So, -13.6 wins above average. That changed his career totals from the sparkling numbers presented above to 79.4 WAR and just 28.9 WAA, which is a little worse than marginal for the Hall of Fame.

Of course, all that playing time means that he had another 884 hits over those seven years, giving him 4256 for his career, the most all-time. This is Pete Rose we're talking about, obviously. The parallels to Jeter are interesting. (No, I'm not saying Jeter has bet on baseball, although I did just read the Rose v. Giamatti case for my Procedure class and I do think Jeter's not the shining white knight he's often portrayed as.) They have both had long careers being genuinely very good hitters, and receiving a kind of worship disproportional to their actual production. Rose parlayed his legendary status into an extension of his career way beyond what he deserved so that he could pass Ty Cobb's hits record. In fact, for much of that time he was player-manager, giving himself those extra opportunities. Jeter has already used his legend status to get something he should have relinquished a long time ago, namely his position. In 2004 the Yankees acquired Alex Rodriguez, meaning that they had two All-Star-level shortstops on their roster. One of those guys was a pretty good fielder. One of them was not. One of them moved to third base to accommodate the other. It wasn't the guy with the good glove. Now, Rodriguez has been a relatively poor third baseman with the Yankees, so maybe he would've been even worse continuing as a shortstop, but it's not like Jeter hasn't gotten worse with age, too.

So now the question is, how much will Jeter continue to do the Pete Rose thing, and stick around long after he's lost the ability to be actually good just to pad his career stats? He's got a player option for $9.5 million for 2014, and I've got to think he'll take it. Will the Yankees play him? DH him? Whatever they do, it seems likely he'll be a drag on their team, until they can convince him to ride into the sunset. That will quite likely be the '14 off-season, but it would be nice to see him stick around longer like Pete Rose did, hemorrhaging wins from his career stat-line and letting his reputation and his ego turn into a massive problem and a barrier to competitiveness for the team he's become famous with. It should be a lot of fun, especially on top of the problems gathered around that other shortstop they got in '04.

Tee hee.

A Plan for the 2014 Mets

I have, for now at least, abandoned my in-depth series on what I think the Mets should do over the off-season to make the 2014 version of the team good. But I'm feeling inspired to just write up a quick post giving one vision of a strategy they could pursue. Note that this is not necessarily a feasible strategy; there is one trade, in particular, that I don't know could be made. But the trade isn't necessarily an absurd one, and I think it would be the best way to make the team genuinely dynamic next year, even in Matt Harvey's absence, which for the sake of argument I will be assuming in this post. If Harvey can come back for some or all of next year, so much the better. First I'll just list the players I'd want/hope to have on the 25-man roster on Opening Day next year, and then after the break I'll give commentary.

Catchers
Travis d'Arnaud, R
Juan Centeno, R
Infielders
Ike Davis, 1B, L
Wilmer Flores, 2B, R
Jose Reyes, SS, S
David Wright, 3B, R
Josh Satin, 1B, R
Ruben Tejada/Wilfredo Tovar/Omar Quintanilla, SS
Outfielders
Shin-Soo Choo, LF, L
Matt den Dekker, CF, L
Juan Lagares, RF, R
Eric Young, Jr., LF/2B, S
Andrew Brown, OF, R
Starting Pitchers
Zack Wheeler, RHP
Jon Niese, LHP

Jenrry Mejia, RHP
Rafael Montero, RHP
Relief Pitchers 
Bobby Parnell, RHP
LaTroy Hawkins, RHP
Vic Black, RHP
Jeurys Familia, RHP
Josh Edgin, LHP
Scott Rice/Darin Gorski/Jack Leathersich, LHP
Carlos Torres, RHP

Charity Is A Tax On Generosity

This has occurred to me as I've been asked several times by people on the streets of New Haven for money. If I have the right configuration of bills in my wallet to do so, I typically give a dollar or two, because I really am on board with Matt Yglesias' "just give money to poor people" program. But it strikes me that there's a big problem with relying on private charity, either on the individual level such as my recent encounters or through larger-scale organizations, as a mechanism for giving money to poor people, as opposed to having the government do it by taxing and spending, beyond just the simple fact that more transferring of wealth will happen in a public system. Compared to a public social safety net, a system of private charity that transferred the exact same amount of money to poor people would have a significant distributional impact on the class of people away from whom money was being redistributed. Specifically, in the private-charity world, the more generous you are the less well-off you'd be, financially speaking at least. Now, you'd be less well-off because you would have voluntarily given away some of your money, and maybe like Ebenezer Scrooge at the end of the play you'd discover some sort of spiritual benefit to all this giving. But the fact remains that your colleague with the same salary but more the attitude of early-play Scrooge will end up with a bigger bank account than you will. In effect, therefore, reliance on private charity as a remedy to the problems of poverty amounts to a tax on generosity, and an incentive toward selfishness. Generosity is typically considered a good thing, and while I think the world recognizes that the most virtuous people won't be the ones who do the best for themselves in terms of material standard of living, that doesn't mean it's a good thing to set up a system that actively discriminates against possessors of a certain kind of virtue. Adopting public policies that use progressive income taxes to fund aggressive anti-poverty and anti-homelessness efforts would not only help poor people (which is, of course, by far the primary reason to do them), they would also remove from those of us with an inclination toward generosity, perhaps even what some might consider excessive generosity, the burden of addressing those problems on a penny-ante private basis.

Of course, under the Republican doctrine that all poor people are bums and moochers who, having been judged worthless by The Market, deserve their fate of destitution, the generosity I'm describing as a virtue being unfairly taxed by inadequate anti-poverty policies is really the whole problem, the thing on which these evil "takers" prey, so this argument probably isn't really going to get very far, is it?

Partisanship as the Dissolver of Institutional Solidarity

Republicans, including Republicans in Congress, are mad that President Barack Obama has requested Congressional authorization for a military strike against Syria. They claim to wish he had just gone ahead and done it himself, unilaterally. This is weird, in a way. They're in Congress. It's their permission he's asking! People don't usually mind it when you ask their permission for things! You are literally giving them power over you while at the same time suggesting that you value their advice. Maybe you don't like being forced to take a stand over an issue and would prefer that someone else did your job for you, but actually coming out and saying "I think it shows weakness that he asked me for permission" is weird. Among other things it feels like it implies that you just accept your own incompetence, or something. Like, "Obama wants to ask the Congress of which I am a member for permission to attack Syria? He might as well ask the cat!"

But in another sense, of course, it's not weird at all. These are Republicans we're talking about. And I don't specifically mean that they're ideologically in favor of unilateral executive war-making power, although they are, because not a one of them would ever have criticized a Republican President who asked for authorization from Congress before conducting a military strike. The point is that Obama's a Democrat, and in particular one that they all hate with an abiding passion, so literally anything he wants Congress to do they will refuse to do. Literally anything. Including things they like. Like going to war. (Seriously, they love going to war.) Or cutting taxes. (Remember that time when Obama was proposing a tax cut and Republicans wouldn't pass it?)

Now, I'm not even really making a point here about how deranged Republicans are now. They are, but that goes without saying. The point is that in this case, a partisan motive is overriding an institutional motive. This happens a lot, and always in the same direction: Congress declines to forcefully assert its constitutional authority because approximately half of its members see themselves first and foremost as members of the President's political coalition rather than as members of the body charged with checking his power. If everyone in Congress signed on to a "let's maximize Congressional power all the time" platform, they could pretty much reduce the President to the equivalent of a ceremonial head of state. They could override every veto, choose every judge and executive appointment by themselves (by refusing to confirm anyone else's nomination), etc. In the end that would make Congress, and therefore being a member of Congress, much more important. But they don't do that, because at any given moment it goes against the partisan agenda of half or nearly half its members. The simple fact of partisanship, therefore, has an enormous transformational effect on the practical constitutional structure of our government.

The 2014 Mets, Part e: Starting Pitching

This is out of order. Also I think the series as a whole is on hold, both because I'm dealing with a nagging shoulder injury and because stuff is just happening too rapidly that's changing the landscape. But I wanted to respond to a thing Sandy Alderson said in a recent interview on WFAN, namely that the injury to Matt Harvey means that he'll try to acquire a veteran free agent starting pitcher over the offseason. I think that's a mistake. The Mets' projected 2014 rotation prior to the Harvey injury was Harvey/Wheeler/Niese/Gee/Mejia/Montero, which is too many pitchers already all of whom deserve a spot, and then throw in Noah Syndergaard at mid-season. You were already going to have to squeeze Gee/Mejia/Montero into two rotation spots, unless someone got injured, which they did. Even though Mejia just underwent surgery, it was of a rather routine variety, so there's no reason to think any of those pitchers other than Harvey won't be ready for Opening Day. And although I don't think the Mets should just punt on 2014, I do think that it would be a mistake to commit every fifth start to a veteran pitcher and take those innings from the team's promising youngsters.

That's not just because the resources could be better allocated somewhere else, because they could. It's because Wheeler/Niese/Gee/Mejia/Montero is a very good rotation. For the season the first four of those guys have pitched 387.1 innings, which is obviously not enough innings for four starters but that's because Wheeler came up mid-season, Mejia had only a few starts between coming off an injury and needing further surgery to complete coming off that injury, and Niese had anomalous issues related to having pitched in the vicious cold early in the year. Over those 387.1 IP they've allowed a combined 150 earned runs, for an ERA of 3.49, which is very very good. It's not good enough for an ace pitcher, but it forms a deeply solid rotation overall, and note that that includes significant stretches of mediocrity or worse from Niese and Gee and Wheeler. Oh, and Rafael Montero's put up a 2.78 ERA over 155.1 minor-league innings, including a 3.05 ERA with AAA Las Vegas in a terrible pitching environment.

If these guys stayed healthy, you'd have the kind of rotation that doesn't (unless Wheeler progresses significantly) have a single dominant ace but it also doesn't have a single bad pitcher in it. That's important. It's how, I think, teams like the Braves and the Reds end up with great team pitching numbers without feeling like they have any dominant starting pitchers. Aces are nice but a "full house" rotation of two #2 pitchers and three 3# pitchers is pretty good as well. It's those #4 or #5 pitchers, guys who might just blow up on any given day or at best will labor through five or six innings of three-run baseball or whatever, who really kill a team's rotation over a full season, and even without Harvey the Mets aren't currently projected to have any bad pitchers in their rotation. And also, as I noted, if something goes wrong or even if it doesn't they've got the guy with the career minor league ERA of 2.64 who's got three more career strikeouts than walks and hits combined to come in sometime in the middle of the season.

Now, I'm obviously putting a lot on "if these guys stay healthy" here, and that's an issue. None of them exactly have a big history of staying healthy. So a fair question is what happens if things go wrong. One answer is "well, contending in 2014 is a stretch anyway without Harvey so if something goes wrong they'll just wait until 2015." I'm okay with that, honestly. This team has the opportunity to be very good for a very long time by building around a foundation of young pitching. They should definitely work to add useful pieces over the off-season, say by signing a reasonably big-name outfielder to a multi-year deal or something, but I think it would be a mistake to do anything that would impede the development of the team's young pitching even if it would be necessary to make the 2014 team more competitive. So I'd try pretty hard to avoid signing any veteran pitchers to any guaranteed Major League contracts.

But if Alderson can find someone who a) would be willing to take a Minor League deal, and pitch in Vegas until needed, and b) would be better as a fall-back option than the likes of Jacob deGrom or Matt Fox or Chris Schwinden (that one's not hard) or Darin Gorski, who might either be a backup starter option or a lefty reliever option, then he should sign them as a way of raising the team's performance floor. Actually, though, now that I think about it Carlos Torres has done a pretty good job as a swing-man/spot starter this year, so really you'd need someone who'd seem like a better option than conscripting Torres into the rotation should someone get hurt. And that's already, really, if two starters get hurt; if only one goes down, you can bring up Syndergaard mid-season to take his place. So we're talking about an eighth starter, really, even with Harvey injured. That's the only place I think a veteran starting pitcher would fit in on the 2014 Mets. Sandy Alderson should, if he wanted for some strange reason to take my advice, shy away from any big-name or even middle-name free agent starters, and should indeed spend the money instead on an outfielder, like Shin-Soo Choo.

And with that I'll conclude this series until at least the end of the Mets' regular season. I might resume it in October, when only the non-terrible teams keep playing and therefore less stuff will be happening to change the Mets' prospects (in the non-baseball term, heh).