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.