Unfortunately Lousy Arguments Against the Death Penalty, Courtesy of Larry Flynt

Larry Flynt, renowned purveyor of filth and smut to all the world (not that that's necessarily a bad thing), was apparently shot and paralyzed by neo-Nazi Joseph Franklin in 1978. The state of Missouri is planning on executing Mr. Franklin, and Mr. Flynt wishes they wouldn't. Good for him, and a good if perhaps not-very-representative example of how the pro-death penalty position is not at all the pro-victim position, inherently or empirically. He also seems to be in the "death is too easy" camp; that is, his desire to "spare" Franklin's life is about vengeance, since he sees spending decades rotting in jail as a worse punishment than just being terminated as gently as the state can manage (which isn't very gently, but still). And that's a fine position, though I don't think it can plausibly be very central to the abolitionist argument. But here's a quote from Flynt in the ACLU's statement regarding the case:

“I find it totally absurd that a government that forbids killing is allowed to use that same crime as punishment.”

This is an unfortunately terrible argument against the death penalty. Why? Because oh boy does it prove too much. Specifically, under this logic we shouldn't let the state imprison people ever, since private parties aren't allowed to go around imprisoning other people they don't like. (Unless they get a government contract and call themselves a private prison, but that's a whole different story.) As I argued here, power is central to the very concept of government; it is in the nature of governments that they have a different relationship to power, force, violence, and coercion than do private individuals. This is what we call the "monopoly on the legitimate use of force." So of course the state does things that it simultaneously forbids private persons to do, like telling other people what they can and cannot do under threat of imprisonment and violence if imprisonment is resisted. As such, therefore, the fact that the government forbids murder doesn't tell us that it mayn't also kill people. Now, as it happens, the claim is true, for various ethical, moral, political, and philosophical grounds. And the fact that death is so horrible is the motivating factor both for state opposition to murder and for private opposition to capital punishment. But we need at least a little bit of political theory to make it clear that, while states legitimately enjoy a monopoly on legitimate imprisonment, it shouldn't get to kill people any more than private individuals do.

What Would You Say Was the Cause of Death?

There's a scene in a certain episode of one of my favorite TV shows where one character asks another to say what he thinks the cause of death was for a bunch of apparent corpses. After the other character makes a few guesses, all wrong, the first character divulges that there was no cause of death, because they're not dead. I was reminded of this when I heard a European Tour announcer say, during the broadcast of the Turkish Open, that slow play is "killing the game, at all levels." Now, look, I know everyone seems to hate slow play with a fiery vengeance, but in order for that statement to be true it first needs to be true that the game is dying, or at least shows some sign of being done substantial injury. Is that true? I dunno. I'm not sure how you'd try to measure that. Maybe "number of golfers worldwide," though I don't know how good the data is there. Maybe the ratings for big tournaments? Maybe the number of applicants to the U.S. and British Opens, which I believe keep setting all-time highs each year? Nothing I've seen as an ardent fan and a player myself suggests that golf is losing the interest of the general public, and that's really just in the U.S., let alone Asian countries where the game is booming. People love to gripe about slow play, but I'd like to see some evidence that it has actually damaged the game, as opposed to just annoying people around the top echelon of the game and the subset of amateur players more likely to have business appointments forcing them to be in a hurry while on the course. It's not killing the game, in other words, because as best I can tell nothing is killing the game.

The Deserving 2013 MLB Award Winners

Yesterday I wrote a post giving my opinion on the 2013 Silver Slugger Awards. (Spoiler: J.J. Hardy should not have been in the conversation, let alone won his.) Today I'll do the same thing for the six main end-of-year MLB awards: the MVP, Cy Young, and Rookie of the Year Awards in each league, which have not yet been announced, though the identities of the top 3 vote-getters for each award have been made public in a totally lame attempt to build hype. As for Manager of the Year, well, there's no actual objective way to assess it, so who cares? Analysis below the fold.

The Deserving Silver Sluggers

It's baseball awards season again, which means it's time for some blog posts by this random baseball fan about who should've won various awards. Comeback Player of the Year doesn't really merit its own post, though. Rivera was obvious, and for the NL, well, I thought Marlon Byrd was a really good candidate but part of what he was coming back from was a PED suspension, so I can't really complain about the Liriano pick. (Fun fact, though, this was Liriano's second win!) No, this post is about the Silver Sluggers, which are being announced as I start typing but will be done getting announced by the time I'm done. So I'll say both who did win and who should've won. Note that the award doesn't distinguish between the different outfield positions, just giving three awards to "outfielders" generally, but I'll try to give one to a center fielder in each league unless that's just implausible. The stats I'll be referring to generally are the basic average/on-base/slugging line, home runs, doubles, triples for relevant players, runs scored and driven in, weighted on-base average (wOBA), weighted runs created (wRC), adjuted wRC (or wRC+), and batting runs above average. Those last few are Fangraphs creations that use linear weights to determine the offensive value of each plate appearance. I've never really worked with unadjusted wRC before, but it seems like it might be a decent way of measuring just pure aggregate production. We'll see!

The Left is More Moderate 'Cause We've Been Winning

Kevin Drum has a post today arguing that there's no great mystery why the Republican Party is so much more beholden to its radical wing than the Democrats are: there are a lot more radical right-wingers than radical left-wingers these days. I think that's basically true, but I have another thought: part of the reason why that's true is that the liberals have been winning. Most notably we've been winning the culture wars. Over the last half-century, American society has been remade in a wildly more progressive, individualistic, liberal direction. We're a long way from perfect application of the ideals of egalitarianism and individual liberty, but as a society we are pretty clearly trying, and committed to trying. And the government's been a big part of that. Sure, there have been a lot of Republican Presidents lately, but almost all of the big stuff they did that liberals dislike was about concentrating the economic resources of the extremely wealthy. That's not a trivial issue, but we're a long way from fighting over segregation or rampant sex discrimination. Notably, since post-Reagan Republicans have embraced deficits just for the hell of it, they're been able to pursue this pro-rich agenda without actually doing too much damage to the anti-poverty parts of the budget; programs have been cut a little at the margins, but the only time a central plank of the social insurance scheme was structurally altered was welfare reform and that, apparently, worked out a lot better than most liberals expected. The point is, someone who thirty or forty or fifty years ago felt the need to demand massive liberal changes both from the political process and from society at large would find that they've received a pretty large chunk of those demands, with more pretty clearly on the way in the near future (on gay rights, Obamacare actually taking effect, maybe immigration reform and some sort of executive action on climate change, etc.)

If, however, you were a conservative those same few decades ago, well, the intervening years have been a horror show. Particularly if you were a social conservative, you are now greeted with the spectacle of all these strange people running around acting like they're your equal. (Women, black people, Hispanics, gays, atheists, etc.) It's now just routine that everyone, not just weirdo free-love hippie types but nearly every ordinary American young adult, has a sex life that would've been considered scandalously promiscuous when you were born. People go around cursing all the time. You get the point: a certain vision of how American society should be structured, one held by a not-insignificant portion of the populace, has pretty much died over the past couple of generations. Which turns yesterday's conservative into today's apocalyptic reactionary, no longer merely making the Burkean argument that we should hesitate to make significant changes but forced to argue that changes which have already taken place are in fact destroying American society. That's a much more radical posture, and I think the frantic sense of doom has been really magnified by the fact that we've got a black President now. Nothing gets people riled up like identity politics, and for a long time now the ascendant American identity has been the liberal one.

I'm honestly not sure what explains the over-the-top hostility found these days among the one group within the Republican coalition that's been making out like bandits over this same time period, namely rich people and financiers. One way to look at it would be that they've transmuted the simple desire to have more money, rooted in nothing more than good old-fashioned rational self-interest a.k.a. greed, into a kind of identity politics, where anyone who doesn't just want to back a truck full of cash (and no small bills, please) up to the gates of their mansion is committing some unforgivable slight. That's a phenomenon in itself, but more broadly I think it's true that the liberal identity has been whupping the conservative identity's ass for generations and that this trend shows every sign of continuing. What more explanation do we need for the perceived radicalism gap?

When Legal Realism Gets Internalized

Back in the old days, common law judges had what we would now consider a naively romantic view of their jobs. They did not see themselves as making the law, but rather as using the principles of Reason to "discover" the law. The law, they thought, had external validity. It just existed, out there, somewhere, sort of as natural law was thought to. Some of them might even have said that the common law they applied was natural law, though others might have denied it. Then, starting a little more than a century ago in this country, came the legal realists, who basically demolished this idea. They pointed out, irrefutably so, that an awful lot of judicial decision-making was influenced by the personal characteristics of individual jurists, the politics, the identities, the ideologies, etc. That was the empirical claim. It got kind of wrapped up in a philosophical claim about what law is. To a legal realist the idea of the law's existing independently of the legal system was absurd. Put perhaps a bit too concisely, the law was seen as nothing more than a prediction about the behavior of judges.

This story, of the rise of legal realism and the corresponding fall, and then demise, of the classical view of law, kept occurring to me earlier tonight as I read the line of Supreme Court cases about federal common law. Here the story is as follows: in Swift v. Tyson (1842), Justice Joseph Story declared that, in a case which only gets into federal court because the parties to it are from different states, i.e. where the legal issues are not ones of federal but rather of state law, the federal courts were not bound to follow state common law. Part of the motivation may have been the desire to create a uniform national commercial law through the federal common law. In any event, this was the rule for very nearly a century, until the Court overturned Swift in Erie Railroad Co. v. Tompkins (1938). And I just couldn't shake the feeling that the difference between the two cases is the difference between classicism and realism. Moreover, though I'm not at all sure which of the two cases I think is better, it seems to me that Erie and its progeny showcase the potential dangers of letting the legal system internalize even the most valid insights of the legal realists.

How Far Could We Restrict Abortion?

As promised in my last post, I will now consider the following question: if I were put in total control of federal constitutional law, what is the most restrictive abortion statute I would consider upholding? There are basically three ways to answer this question: totally pro-life, totally pro-choice, or something in the middle. Or, to put it another way, you either need to say that a law prohibiting abortion from the moment of conception would be constitutional, that no law imposing anything more than good-faith time-place-and-manner-style regulations on medically-supervised abortion up to the minute, or perhaps second, before birth would be constitutional, or you need to find some convincing way to draw a line somewhere between the two. Obviously I don't adhere to the first position. I'm not at all sure, however, that I adhere to the second one, either. That requires me to draw some lines, and below the fold I will attempt to do so. First I'll sketch the outlines of what I think might be the most restrictive possible legitimate abortion law, and then I'll attempt to defend both why I think such a law might be constitutional and why I think violating any requirement I place upon the law would render it invalid.