Archive for August 2009

Program Notes: BBC Radio 4/Newton and the Counterfeiter/Self Aggrandizement edition

August 30, 2009

Update: Thanks to commenter Thony C. for the link to the first installment.

A quick heads up to all in search of true high quality radio in the UK in the coming week.  My book Newton and the Counterfeiter is BBC 4’s Book of the Week for the coming five days.

So, tune in at 9:45 a.m. M-F to hear my book presented in five capsule audio/documentary chunks.  It should be fun.  (It will be podcast at some point.  You may rest assured that I will let y’all know when it does)

And,  should you be so moved, you can even get the raw material to create your own Newton podcast, North American readers can pick up the book at the usual suspects (Amazon, Powells, Barnes and Noble,Indiebound), and those across the pond may do so as well, at the other usual suspects. (Amazon.co.uk, Waterstones, Blackwells, Borders,John Smith & Son).

Image:  Joe Mabel, Art car: Motor vehicle in the form of a giant Radio Flyer red wagon, 2007 Fremont Fair, Seattle, Washington.

And Just to Ease the Cares of the Day: Birther/GOP mockery dept.

August 29, 2009

Seed art (sic!?–ed.) sums up the current intellectual credibility of the disloyal opposition.

Now that’s commitment.

(h/t Minnesota Independent via a Balloon Juice commenter.)

Image:  from Tacuinum Sanitatis, “Peasants Threshing Wheat” 15th century.

Oddly Satisfying Factoid of the Day: Gerald Ford’s last laugh edition

August 29, 2009

Via this piece on newspaper obituary practices in Slate, I learned that Gerald Ford outlived the writer of at least one of his obituaries by eleven months.

Now that’s commitment.

Image:  John Everett Millais, “The Vale of Rest” 1858

Another Reason Why My Doctor Tells Me The Nation Shouldn’t Read Megan McArdle…

August 28, 2009

…the necessary blood pressure medication on its own would bankrupt our soon-to-be-reformed health care system.

Though perhaps, pieces like this actually evoke more of a sense of wonder than anything else — not merely at the banality and evil so neatly conjoined in its content, but at the astonishing reality that anyone who routinely writes such…how to put this…bonecrushingly stupid; water-her-twice-a day dumb;* the wheel is spinning but the hamster’s dead** material, still has a job, much less an apparently appreciative audience.***

Actually, I think I have to credit McArdle with some cleverness here.  Her post is so full of different instances of nonsense, bad faith argument, sheer failure to understand what she seems to think she is talking about that she achieves a certain effect:  by seeding her post with so much to be debunked, she increases the odds that one whack-a-mole notion or another will slip past the defenses of rationality and real-world experience.

Life is, of course, too short to club every mechanical rodent that pops its head above the blissfully sunlit interior of McArdle’s mind, so what follows is an attempt at bullet-point fisking, a move towards a kind of blog-brevity that I have never executed successfully.  So let’s see, why don’t we:****

So is this guy a terrifying threat to democracy?  Or just a civic-minded citizen?

Species of logical fallacy?  False dichotomy.

If you think that his position on healthcare changes the likelihood that he will discharge that weapon…

Ditto.

is this a rational belief?

Species of logical fallacy:  Straw man.

I think carrying guns to protests is entirely counterproductive.

That’s one word for it.

Indeed, I’m not sold on the general virtues of protesting, which worked for Gandhi and the civil rights marcher, but has a dismal track record on other concerns.

Where to begin?  Oh yeah — keep it short.  I’ll merely glance at my usual rant about McArdle’s lack of actual acquired knowledge/experience out of which to base her claims.  I’ll only say that anyone who takes as dispositive of the topic that Ms. McArdle is herself “not sold” on what she curiously calls the “virtues” of protesting♦  is a suitable purchaser for that bridge in Brooklyn I managed to pick up last week.  Without resorting to the argument from authority (because I don’t need it — see immediately below), I’ll just note that McArdle’s training as an English major (undergraduate) and an MBA candidate hardly seem to me to provide the necessary formal intellectual inquiry to back that statement up.

And of course, the fact that for whatever reason — lack of education, intellectual sloth, incurious enjoyment of her almost impossibly sheltered and comfortable life to this point, or some combination of all of the above — McArdle knows not of what she speaks can be demonstrated with a moment’s googling, or, in my almost fifty-one year old case, mere acts of memory.

Let’s see:  I seem to recall that the aftermath of the Marcos instigated assassination of Ninoy Aquino demonstrated that protest has no power.  Lech Walesa must be merely a shipyard worker with a gripe, given that the protests he led were so desperately ineffective.  The South African case is enormously complicated, but if the business community in South Africa cut the underpinnings of the Boer cause in the eighties and early nineties, I’m sure it was because sustained, courageous, life-risking protest within the country and protest led pressure on international companies outside had nothing to do with it … it was all purely the milk of human kindness coursing through the veins of the NP that allowed Nelson Mandela to embark on that famous walk.  And so on…

In other words, protest may not satisfy the kool kid McArdle appears to imagine herself to be, but people have died in proving her wrong time and again within even her callow memory.  I’d add that he dismal track record of which McArdle writes exists, but should be sought in her own archives.

But I think people have a perfect right to do it, including with guns, though I also think the secret service is within its rights to ensure that they don’t have a sight line on the president.

That’s “Secret Service,” a proper name, not some generic function; and I’m sure its brave members sleep a little more soundly now that they know that Ms. McArdle has acknowledged her belief that they have the right to perform their duty.

But the hysteria about them has been even more ludicrous.  Numerous people claim to believe that this makes it likely, even certain, that someone will shoot at the president.

I call Inigo Montoya on her use of the word “ludicrous” in this context.

And as for the “numerous people…” sentence…this is both a logical fallacy — the straw man again, in her assertion that the claim has been made that the presence of guns at rallies make it “certain” that someone will shoot President Obama — and the coward’s argument.  If numerous people have made this claim, name them, so that we may check and see if McArdle is reporting their claims accurately, and to see what arguments they might be making in support of whatever they assert.

This is very silly, because the president is not anywhere most of the gun-toting protesters…

I’m glad to get a reading on what McArdle thinks is silly; it helps calibrate the rest of her stuff.  But while I guess worrying about the fate of the president is risible to some, the real kicker here, of course lies with the remarkable statement that it’s ok to bring a loaded gun to protest a presidential visit because “most” won’t be “near” President Obama himself.

It pains me to say something so utterly obvious and predictable but, if I may break the fourth wall for just a moment:  Ms McArdle.  Are you awake?  Sentient?  Even a little?  Remember, when it comes to bullets…It Only Takes One.

And as for “near.”  I’m guessing that McArdle’s upbringing/background is once again suckering her into the realm of unknown unknowns here; that relentless incuriosity of hers seems to keep her from grasping the fact that guns are not in fact solely short-range weapons.

The AR-15 rifle carried to the rally in Phoenix is a derivative of the military M-16.♥  It fires the NATO 5.56 round and while it has a number of variants, has an effective range of over 500 meters in its most common forms.  While I hope indeed that the Secret Service does indeed manage to control all the sightlines to the president, half a kilometer is not what I would call near…and McArdle, whatever she actually knows of modern firearms, certainly manages to convey in this post complete ignorance of the subject.♣

Onwards:

It is, I suppose, more plausible to believe that they might take a shot at someone else.  But not very plausible:  the rate of crime associated with legal gun possession or carrying seems to be verylow.  Guns, it turn out, do not turn ordinary people into murderers.  They make murderers more effective.

Species of logical fallacy:  biased sample.  The relevant sample is not all those bearing guns legally, but all those bearing guns in a political context, and perhaps in the specific context of Presidential appearances.  However you might want to begin analyzing it, the group of those who consider it a form of acceptable democratic speech to bear a loaded gun at a political rally is a distinct subset of gun owners, and the assertion that their behavior will track that of the group at large is both bad statistical reasoning and bad-faith argument, all rolled into one.

So perhaps unsurprisingly, when offered the opportunity to put some money down on the proposition that one of these firearms is soon going to be discharged at someone, they all decline…

This is getting tedious:  the fallacies here include the ad hominem argument — because people don’t bet, what they say is wrong — and yet another straw man.  Who are these mythical non-gamblers.  I’ll take the damn bet.  Here’s a 100 bucks that says that some asshole fires a weapon at a political rally before the end of Obama’s first term. I’d bet more but I just bought a house and haven’t got a dime to spare…and Mrs. Levenson raised her boy right, with the view that bet when you feel like it…but never your son’s lunch money.

McArdle then approvingly quotes from that notorious bearer of bad-faith arguments in defense of faith, C.S. Lewis, to advance in someone else’s name the logical fallacy known as the slippery slope argument. It is certainly true that milk drinking leads to heroin addiction, but what’s even wierder about McArdle’s citation of Lewis’ Mere Christianity is that Lewis’s point, however flawed, has no discernable connection to McArdle’s argument.  This is what I mean when I see in McArdle the bored monkey style of argument:  fling enough faeces at a wall and perhaps something will stick, if only by oderiferous association.

Moving on:

I suspect that, like the notion that Obama is not a US citizen, or that George Bush either planned the 9/11 attacks or allowed them to happen, this is for most people what Julian Sanchez calls a symbolic belief.  They don’t really believe that these people are thugs intent on murder–not in the sense that they have, with careful thought, arrived at a conclusion that they are willing to defend vigorously.

Two quick points.  There is a false equivalence at work, to begin with.  Birther and 9/11 conspiracy beliefs do not derive from the same underlying logical or empirical structure that the argument that the repeated incidence of bearing loaded firearms within the context of purportedly peaceful protest increases the risk of violence in the future.

The prediction may be wrong — that is, we may go through an entire eight year Obama Presidency with nary a hint of gun violence in political contexts.  But the argument that such violence is a reasonable thing to fear is a qualitatively different one from that required to believe in the face of all evidence to the contrary that Barack Obama is not legally the President of the United States (or that George Bush evoked 9/11…or that FDR set up Pearl Harbor and all the rest).

Second:  once again, McArdle has recourse to a bad faith, logically flawed argument here.  She’s not that inventive, so she’s gone again to the straw man well.

Those who suggest that the presence of guns openly carried implies a series of risks — how many concealed weapons might be present; how much organization there might be in the insertion of armed protesters into the fabric of peaceful protest; how long it will take for over-the-top violent rhetoric to find a truly receptive ear amongst all these “patriots” — are not saying that any individual gun-toting asshole is a thug bent on murder.

They are saying that the more useful idiots like McArdle legitimize the presence of guns in political discourse, the greater the risk we take that the guns will stop being symbols, and will reappear as the tools they are…tools that are capable of dealing deadly violence at a distance.

McArdle would rather not dwell on that ugly fact of guns.  They are not toys.  They are not megaphones.  They do not utter cute or funny or pointed commentary on the state of American polity today.  They dispatch useful weights of metal at high speeds across considerable spaces with an accuracy restricted by the quality of the machine and the skill of its operator.  Reality matters.

But it is pleasurable to tell yourself you believe terrible things about your enemies, and so you don’t examine the thought until someone says, “Well, how about $500 on it, then?” and you think about how much it would hurt to lose $500 on, and realize that you don’t actually have any reason to believe it’s all that likely.

Back to that again:  the validity of the argument that bringing guns to political rallies is (a) dangerous and (b) if unchecked, likely to increase the risk of an act of political violence turns on whether or not someone will lay a bet with Ms. McArdle.  See above for the fallacy involved, and then pause to consider McArdle’s framing of the argument as a whole.

Here she says, as the concluding thought of her attempted chain of argument, that the actual claim being advanced is that the presence of guns among anti Obama protesters is evidence of the evil of opposition to Obama and not, as stated by those who make real arguments on this matter, that the increase in the threat of violence is likely to lead to an increase in violence itself.

This is a predictive argument, and I hope that is wrong — or rather that the making of it helps create the conditions that will prevent it from becoming right.  Were civilized people to say that whatever one’s legal rights to bear arms might be, it is socially unacceptable to do so at a political rally, especially one at which an elected leader is present, then the risk of violence would be reduced, I hope to the level that the Secret Service could manage without breaking a sweat.

But the point I’d finish with here, to counter McArdle’s attempt at a conclusion, is to remind everyone of the intellectual and emotional poverty of McArdle, along with that of those on the right who like her are trying to turn our politics into a game of high-school debate, unanchored in lived experience.  She asserts, in effect, and almost in so many words, that the fear of political violence is a mere abstraction — her “symbolic belief.”

She is, of course, totally, utterly, and almost painfully wrong — as everyone knows who can remember back just a few years, read a book, perhaps, …or even managed to recall the fate of a couple of people who shared a last name with someone else famous who died on Tuesday.

Specifically:  I was born in 1958.  Since then, there have been ten presidents who have served before the current incumbent:  Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush I, Clinton, and Bush II.  Of them, one was killed by a rifle.  Another had guns drawn on him twice in two weeks.  A third was shot outside a Washington DC hotel by a deranged celebrity hound.  Three out of ten.

More:  Over the history of the presidency, ten out of the first 43 presidents were subject to attempted or successful assassinations.  Political violence is a fact of American history.

Taking note of that risk is not mere mental masturbation, pleasuring ourselves in the contemplation of the demonic nature of the opposition.

It is simple prudence.

Let enough people with guns get close enough to powerful people, and the American experience is that something bad will happen…at a rate approaching (and in recent times exceeding) one time out of four.  (And yes — I know about the sample size and so on…)

Let’s add to that.

You may have noticed that the current President doesn’t look like his 43 predecessors.  He is, not to put to fine a point on it, black, African American.

McArdle may not wish to dwell on the subject, but there is something of a history of violence imposed on African American leaders in this country.  There is as well a hint of a racial overtone (ya think?– ed.) to at least some of the commentary around the Obama administration from the right.

Put that together:  Obama is in an office that is historically a target; he is a member of a group that has been preferentially selected for deadly force in the context of political action; and there has been a demonstrable escalation of rhetoric against his policies and his person.

And thus the ironic (and that’s putting it nicely) grotesquery that is McArdle’s last line, a castigation of people like me who are, in her view, merely enjoying our fantasy of potential assassination:

Unfortunately, these sorts of fun pastimes are horribly corrosive to civic society.

Well, so they are, in the form committed by the disastrous McArdle.

[Last thought:  I see via TBogg that McArdle has committed a second atrocity to compound the one fisked above -- but I'm too tired, and so must you too be if you've read this far, to bother with more of the same.  I guess this is yet one more example of the monkey poop approach to political argument.  Keep flinging the shit long enough, and some of it's bound to hit something.  But still, McArdle's not worth the attention her relentless awfulness earns her...a fallacy I'll leave to you to name.]

*with thanks to the late great Molly Ivins — who would have devoured McArdle for lunch (w. barbecue sauce) and used her metacarpals for toothpicks.

**and thanks to Herb Caen, whose column over the years provided a constant lesson on the joys of the English language and the extraordinary peculiarities of which the human species is capable.

***though I suppose the bulk of her readership may be, like me, those drawn to intellectual trainwrecks, who cannot turn our horrified eyes away…

****I failed.

♦by virtues she means here, apparently, effectiveness, which is a virtue only in certain, deeply unlovely philosophies.  Which is, I guess, what one would expect from this source.

♥Just to forestall the predictable flames:  I do know that the Phoenix assault rifle bozo was in fact kept well out of sight and range of the President.  The point is not that he could have shot Barack Obama.  It is that the weapons being used as symbols of speech and liberty by McArdle and others are in fact tools that in properly trained hands can impose deadly violence from a great distance.

♣Just to play w. wingnut stereotypes, I, a child during the ’60s (not, note, a child of the 60s), raised in Berkeley, have — as do many of my peers — plenty of exposure to firearms.  My family were literally gunners — grandfather a colonel in the Royal Horse Artillery and my uncle a major in the Royal Artillery, and I in my California youth spent a fair amount of time in real ranch country, where guns were in fact tools.

I got taught proper gun safety, and handled first the usual kids’ guns, single shot bolt-action .22s, and then more powerful ones, both hand and long guns.

Berkeley itself was hardly ever the pure hippie-dippie pacifist sheep zone of popular right wing fantasy.  Just to admit my own idiot youth:  among my least proud memories of my childhood in Berkeley itself was with another faculty-brat lefty friend, peering out of a window across the street from a Buddhist meditation center, plinking soda cans off their wall with my air rifle.  I don’t know if adolescent boys are always assholes, but I sure had my moments.

And lest any folks on the far side of the political spectrum with more rage than sense think cracking loud in Berkeley might be a good idea, I’d just think back on a number of friends I had — left to the core refugees from special forces.  Don’t ever make the mistake that because someone is quiet and maybe has a mellow hair style they are unarmed and safe to mess with.

Senator Edward Kennedy…

August 26, 2009

Was  a great man, and he will be deeply missed.

For all the overwhelming evidence of the bankruptcy of American politics these days, Ted Kennedy serves as a reminder of the other possibility.

Everyone else will have more,* so I won’t belabor my own feelings.  Just that our senior senator has been yet another instance of what makes Massachusetts the place that other states envy — or should (except during a Feb. nor’easter.  No politics helps then).

*And I mean everybody.  But as far as I am concerned, Anne Laurie over at Balloon Juice has it exactly right.

Image:  Massachusetts Senator Ted Kennedy, speaking at a rally for the presidential campaign of Senator Barack Obama in Hartford, Connecticut. Congressional Representatives Rosa DeLauro, Chris Murphy and John B. Larson are onstage behind Ted Kennedy, along with Caroline Kennedy and Barack Obama.  Photographer:  Sage Ross

Friday Isaac Newton Blogging: How nice it is to be wrong, Newton and the South Sea Bubble Edition

August 21, 2009

One of the great pleasures of the writing life is the stuff you learn.  There is the material that you seek out during the research of any project, and then there are the moments of serendipity.

One of these just came my way, in the form of one of the happiest corrections of error I have ever received.

In my writing about Isaac Newton — that book I’ve overmentioned…you know, Newton and the Counterfeiter, (Amazon, Powells, Barnes and Noble, Indiebound and in the UK, Amazon.co.uk, Waterstones, Blackwells, Borders, John Smith & Son) — along with a number of pieces for newspapers and websites, I’ve spent a fair amount of time talking about Newton’s failed investment in the South Sea Company.  (See this for a quick account of Newton’s encounter with that famous bubble, or check out the epilogue of the book for an expanded telling.)


In talking about the book and Newton’s connections to contemporary financial difficulties with Bloomberg.com’s Manuela Hoelterhoff, I said this:

[Newton] hated being reminded of any mistake. The only reference that people have found to his South Sea losses is in the comment: “I can calculate the orbit of a comet, but I cannot calculate the madness of the people.”

That was true, as far as I knew, when I said it a couple of weeks ago.  All the usual sources — see especially Richard Westfall’s still-definitive Newton biography, Never at Rest — made reference to one remark someone recalled Newton making:  “I can calculate the orbit of a comet, but I cannot calculate the madness of the people.”  The rest was even remoter hearsay:  his niece’s statement that Newton had lost twenty thousand pounds by buying into the South Sea Company at the height of the bubble, and a report that he could not bear to hear the name of the company mentioned ever after.

I did spend some time tracking down the various memoirs, and I couldn’t add anything to that…so that’s what I wrote in my book and that’s what I told Manuela.

But I’m wrong, I know it, and I’ve seen the proof.

It turns out that there remain — after almost three hundred years — some Newton papers that have not bubbled to the surface.  Every now and then, a few letters emerge and get sold into the archive/collector trade.  Several late letters between Newton and his once-dear friend Nicholas Fatio de Duillier hit the auction block a few years ago.

I heard about the sale, but one of the letters, at least (I don’t know the whole story) was bought by a private collector.  I had talked to one of  the reigning experts on Newton and Fatio about the emergence of some new Fatio material — that would be Cambridge University’s Scott Mandelbrote — but he told me that there was nothing in the material that he could not yet share with me that bore directly on my story of the encounter between Newton and his counterfeiting nemesis, William Chaloner…and this was true.

But I didn’t tell Scott that I would be talking about Newton and the South Sea Bubble — and if I had, I might have had a heads-up on the second and much more robust example of Newton’s disgust at his loss that we now can cite.

The letter in question was written by Newton to Fatio on September 14, 1724.  It’s short — one long paragraph in all, and is mostly concerned with adminstrative matters regarding Fatio’s membership in the Royal Society, and Fatio’s request for Newton’s help in presenting some new work to that body.  It’s marked by the complete absence of warmth or connection — a startling contrast to the urgent affection of letters Newton wrote to his younger friend back in the early 1690s.

But the most striking passage in the letter comes in the first couple of sentences.  Fatio had apparently sought Newton’s advice concerning– or maybe had touted to him — an investment in the “York Building Companies (sic) Fund.”

Newton disclaimed any interest — he had heard that the company in question was in a bad way, for one thing.  And for another:

“I lost very much by the South Sea company wch makes my pocket empty, and my mind averse from dealing in these matters.”

There you have it:  unmistakable documentary proof that I was wrong in my declaration that there was only one reference to Newton’s despair at his loss.

I couldn’t be happier.

I had believed that Newton felt the distress reported in the various indirect accounts previously uncovered.  I wrote my story accordingly — always trying to be clear about the one-remove quality of the reports on which I based that belief.

But now I know it.

I’ve seen it for myself, in Newton’s own hand, over his (to me) familiar signature.  This is one of the small satisfactions of doing history, these sudden moments of connection across time and vast differences in context and experience — that instant when you feel the presence of a human reality intelligible to one’s own.  And it’s nice to know that however wrong I was to say there was just one Newton reference to the South Sea debacle, I was right to let my readers know that Newton winced at the memory of the Bubble year.

One last thing:  I’m very grateful to the letter’s owner, the man who purchased it at that auction a little while back, Mr. William (Bill) Mason.  Mr. Mason, whose name may be familiar to those involved in the kind of high finance that brought our friend Isaac so low, wrote to me after reading my chat at the Bloomberg site, sent me a photograph of the letter, and gave me permission to write about it here.  My thanks — it is just a pleasure to come across something like this, and Mr. Mason swift and unfettered readiness to let me talk about this in public is a real act of generosity.

As I said at the top — I can’t recall a correction that has made me smile so wide.

Image: Hermann Moll: A New & Exact Map of the Coast, Countries and Islands within ye Limits of ye South Sea Company , London 1711

Science and the Law: Why Antonin Scalia is not just wrong, but incapable

August 19, 2009

Update: I’ve corrected the number of dissenters in this case from 3 to two,  Scalia and Thomas, per Jason’s comment; Justice Sotomayor, newly arrived at the court, did not take part in this case.

Upfront:  I’m not a lawyer, nor a regular student of legal matters, Supreme Court jurisprudence or Constitutional scholarship.

But such inconvenient facts should never stop a doughty blogger, so here goes.

Lee Kovarsky, a law professor at NYU, has a very smart guest post up at Obsidian Wings on the meaning of Justice Scalia’s dissent in the Troy Davis decision.  In that decision a 6-23 majority of the Court sent Davis’s murder conviction back to Federal District Court to determine whether new evidence confirms Davis’s actual innocence.  This outcome was genuinely new, the first time in 80 years that the Supremes have granted an original habeas petition, and the decision to pursue this particular line of court authority is itself entangled in Constitutional issues that Kovarsky touches on.

But I’m not here to talk about such legal issues — remember, I don’t know anything about them.  Go read the link as a starting point into the pure law side of the matter if you are interested.

What caught my eye within Kovarsky’s gloss of and response to Scalia’s argument were at least a couple of levels on which science and law intersect in the controversy that Scalia’s claims have evoked.

In brief as Kovarsky tells it, Scalia follows the line of argument laid down by Professor Paul Bator who held that knowing “truth” is in essence impossible, at least within a legal context.  Rather, the best one can ask of a judicial system is that a determination of guilt or innocence emerge from a recognizably consistent procedure.

That is not, as Kovarsky writes, a crazy position.  It even has an echo of sciencey-ness.  (What is blogging for if not to attempt stillborn neologisms?)

Think of the popular plain-language version of  the interpretation of quantum mechanics that holds that what it is possible to know about a quantum system is not the behavior of the system itself.  Rather, you know the what your instruments tell you.  We can state the measurement to the limit of precision of a given experimental apparatus, but not the “real” nature of a wave/particle or whatever.*

But it is, as Kovarsky goes on to argue, an untenable one in light of the impact of modern science on criminal law.  He cites specifically the impact of DNA evidence, though he notes that this is not the only technique that bears on determinations of guilt or innocence, and that it does not in fact apply in the Davis case.

His point, and it’s correct IMHO, is that it is no longer tenable to say that given the imperfection of human knowledge it is impossible for one court to come to a reliable determination of actual innocence, the “he-didn’t-do-it-for-sure” level of knowledge needed for a federal court to overturn a state court determination of fact (as long as there were no fatal defects in procedure).

Turn that convoluted sentence around:  Kovarsky says that Scalia and Bator behind him fail to recognize that we now have ways of really knowing certain kinds of facts.  Scientific advances allow us to state with great (not perfect, but great) authority that, e.g.,  if the relevant  DNA at the scene does not belong to John Doe, then John did not commit that particular crime.

Given the existence of scientific procedures of such relevance to criminal justice, then the old view that human knowledge is so inevitably imperfect as to restrict the concern of appelate courts to procedure rather than matters of fact cannot be accepted.

The tricky part in the argument, at least from where I sit, is the ceding to scientific methods this level of authority.  I don’t disagree — but the claim leads to the second level at which science intertwines with this case.

There is an argument within science — or at least, if not among scientists so much as within the broad area of science studies– about the quality of different kinds of scientific knowledge.

Within science studies there have been the radical views of the contingency of scientific knowledge, of course, which seem to me to be basically a red herring.**  There have been a lot of much more persuasive (to me) work done on the impact of the sociology of scientific life and the economics or political economy of scientific research that do show how the making of scientific understanding is a human activity, prey to all the ills that may attach to our endeavors.  And finally, scientists themselves are deeply aware of the issue of interpreting measurements.  The question of what it is that a given procedure actually tells you is one that comes up in every single experiment.

The point for the court is that for all the sources of uncertainty in science that scientists themselves talk about and guard against in individual experiments and observations, there are, as Kovarsky points out, things you actually know to a satisfactory level of “truth.”  And the use of DNA and other biochemical markers as exculpatory (or incriminating) evidence is one of them.

So, to buy Kovarsky’s argument, as I do, you need to buy the fact that when a scientific procedure returns a result, that result has meaning, one that is determined by a specific context of procedure and, in a sense, community standards of proper scientific process.

And one thing that interests me is that this is not part of the legal culture of knowing.  In an advocacy based system, the quality of your facts is determined by the quality of the argument you can build to defend or destroy claims of “truth.”  That’s a model followed in a lot of pseudo-scientific debates — see the strategies of argument advanced by ID/Creationist types (among whom I don’t think it accidental that one founding inspiration, Paul Johnson, was himself a lawyer), and those offered by climate change deniers.  But its not the core of scientific argument, which has much more of  “did you do it right” quality rather than “you have conceived of this procedure wrongly.”  (Much more, I say, not “exclusively.”)

To wrap up:  one of the trickiest things for a court has to be accomodating itself to real changes in human experience.  Scalia’s position was always, I think, wrong in justice terms.  It hasn’t taken DNA evidence to produce instances of people genuinely wrongly, and as Kovarsky also notes, there is no doubt that on the subsidiary question (perhaps primary to lawyers), state courts are not always reliable repositories of proper procedure.  Deference to the actual flawed courts on the ground is granted on the basis of an image of the ideal courts of law school textbooks — but in practice one of the central premises of the Bator/Scalia position is false as a matter of empirical observation.  In sum:  it is a poor excuse for a judicial system if as a matter of formal principle there is no possible judicial way for a condemned prisoner to establish actual innocence.

But whether or not you agree with that view, it is observably true that human skill at learning facts and patterns of facts about the world has changed enormously over the last four centuries, and at an extraordinarily rapid pace in the last several decades.  That transformation makes Scalia’s position wrong in essential terms as well — we can know things that his view asserts we cannot.  That  is an error that I believe his age, his education and his experience will make it vanishingly difficult for him to correct within himself.

And that leads to the twin editorial points of this story:  scientific advance is not the only but it is a big reason why the premises of Constitutional originalism are shaky to the core.  And Justice Scalia is a man past his time.

*Leave aside here the question of whether any such plain-language descriptions of the “meaning” of quantum mechanics help very much.  I like them, and they help me think about some matters, but I’m sympathetic to a kind of schizophrenic view that we know the quantum world operationally, through experiences that include typing this on a device riddled with quantum physics, and mathematically, in a symbolic language that translates only imperfectly into the kind of statements like the one above.  But here we enter an endless loop of late night dormitory discussions, in which this deponent falls silent.

**I think that studies of, for example, the contingency of class and knowledge do help in historical interpretation — no one, I think, doubts that it is valuable to understand Charles Darwin’s positioning in English and British society in grasping what he did and did not accomplish.  But Darwin’s status as a member of a family clearly lodged within the industrial gentry does not alter the fact that his finches provide a powerful case study of evolution by natural selection in action.  Again, a much longer discussion starts here, and here I get off, at least for now.

Image:  William Hogarth, 1758.


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