Tuesday, June 11, 2019

Gender, Sex, and Transgender Debates

For a while, I've had the idea of writing short posts presenting right wing and conservative ideas as charitably as possible. There's a tendency on both sides of the culture wars to oversimplify and straw man (person?) the opposition. I fall prey to this just as much as the next person but in an effort to practice what I preach, here is the first is what I will try to make a regular feature of my blog. My first attempt is here. In this post, I'm going to enter the mine-field debate over sex, gender, and transgender identity.

In these pieces, my aim isn't really to argue for a particular view. I'm mainly going to try to give an overview of some of the issues and trade-offs associated with various popular positions. The hope is that I'll accomplish what I aim for in my classroom: To get people to at least feel the intuitive pull of competing positions and understand why someone might adopt them. That said, where I think a position is particularly strong or weak, I'll suggest this.

Sex, Gender, and Transgender Debates
In good philosophical fashion, let's begin by defining our terms. There is disagreement over the terms and we'll look at that later, but we need something to begin with. Here are how sex and gender are often defined.

Sex: A biological category defined by some combination of chromosomes, hormones, and genitalia. Edit: In an earlier draft I wrote that there are five sexes for humans, especially since it's not clear how to classify hermaphrodites. I'd read this several years ago in some now-forgotten articles. I've since learned from commenters that this is a contested claim. The two-sexes view holds that we can always identify the female because "she makes large gametes." For a fun twitter feed on this topic, go here. For an overview of the biological possibilities for sex determination in humans, go here. For scientific support for the two sex view, go here.

Gender: The behavioral norms typically associated with a particular sex. Norms, in this case, are often understood to be both descriptive and prescriptive. That is to say, they can describe how members of a sex do act or how they ought to act. It's important to keep the descriptive and prescriptive elements separate since most people often equivocate between the two. The most common genders are man and woman or, as adjectives, masculine or feminine.

Famously, gender is often referred to as the social meaning of sex. That is to say, when we think "female" or "male," gender represents the social roles and behaviors associated with the respective sexes.

As far as I can tell, the standard conservative position is that sex=gender. This view is usually referred to as gender essentialism. By this I mean that biology and behavioral norms do not come apart. Sort of. On the descriptive account, being female means that you will behave in certain ways and perhaps be disposed to particular gendered preferences. That is, your biology determines your gendered behavior and dispositions.

The normative account of gender usually follows: If you don't exhibit the appropriate biologically determined behaviors then you are deviating from how you should behave. This is what people mean when they say things like, "he's not a real man" or "act like a lady." These are admonitions to act according the norms appropriate to your biological sex.

Critics of gender essentialism point to a potential problem. If gendered behavior is determined by biological sex then how is it possible that some people don't behave according to the biological sex? The reply usually has to do with the effects of decadent liberal culture corrupting the youth. In other words, culture is corrupting "natural" behaviors. A problem with the reply is that it concedes the very point that their opponents often make: gender is socially constructed and the "natural" gendered behaviors don't occur in a cultural vacuum either. They occur in a cultural environment that models and reinforces particular gender norms....

This leads us to the other end of the spectrum where people argue that sex and gender can come apart. (The fact that it's possible to say "be a man" or "act like a lady" seems to tacitly support this in the descriptive sense...) We only believe that gender and sex are inextricably linked because biologically female humans are socialized to internalize the corresponding cultural gender norms just as biologically male humans are socialized to internalize their corresponding gender norms. If males and females were socialized differently, they would act differently than the gender norms typically encouraged and modeled in our society.

So, to repeat, here are the two extreme ends of the continuum: Those who say that sex determines gender and those that say that gender is entirely the product of socialization--not biology. Those who argue that sex determines gender often move from the descriptive claim to the normative; i.e., that one ought to align one's behavior with the gender norms associated with one's biological sex. Failing to do this is, to varying degrees, morally bad.

As you might guess, there's also everything in between: People argue that, in a population, some traits and dispositions are statistically correlated with one sex rather than another. Basically, some of our behaviors and dispositions are biologically determined by our sex while others are indeed the product of socialization. It's important to add that just like for every other species, most traits fall on a continuum: No one has all traits in the same amounts and so, at the population level, we should expect to find all traits in both male and female humans and in different degrees.

Defending the conservative position: Across all species we observe statistical behavioral differences between males and females of that species. We also know that there is a biological foundation to many behavioral dispositions. It would be weird if humans were the only species in all of creation for which sex and biology didn't play any role in statistical distributions of behaviors.

Here comes the tricky part: Humans are unique in that culture plays a huge role in determining behavior. This is why we observe different behaviors across cultures and time. So, while it's entirely reasonable to hold that many behaviors are grounded in biology, many behaviors are also a product of socialization in a particular culture. How do we distinguish behaviors that are biologically grounded from those that are socially grounded when behaviors occur in an environment where both determinants exist?

For some, the solution is to abolish all gender norms and to "let the pieces fall where they may." That is, if we tear down gender norms, people--as unique individuals--will follow a path that conforms to their intrinsic dispositions. In this way, people who might have been pushed into roles that clash with their inner disposition are free to pursue a life congruent with their unique combination of drives and dispositions. Also, those who fit well in traditional gender roles still have that available to them with the important difference that they are genuinely choosing it.

For others, gender norms offer a safe road map for harmonious family and community living. Destroying these norms provides people with no road map and eviscerates the institutions upon which family and society have historically been built.

The gender abolitionist assumes that humans can handle all that freedom and new harmonious forms of social organization can emerge (Read: The Inquisitor from Dostoyevski's The Brother Karamazov for a great take on this). The gender conservative believes that society can't flourish without certain gender roles. They also assume previous forms of social organization grounded in gender norms were indeed harmonious or at least more harmonious than any other possible form of social organization.

There's a lot more to say here but I'm trying to make this just an overview and get to the issue of transgender identity.

Transgender Identity
Ok, if I end up in a re-education camp for this, please contact my mom. She's a professor in the Department of Education at UBC so she may be able to pull some strings.

We can think of transgender identity as involving two distinct but related issues: One ontological and one ethical.

The Ontological Issue
Ontology is a fancy way of talking about the philosophy of "being." In this area of philosophy we try to figure out what makes a thing what it is rather than something else. The ontological question regarding transgender identity asks "what is essential to gender?" In fancy philosophy talk we might ask, what are the necessary and sufficient properties that a human must have such that they are one gender rather than another?

Here are the two simplified ends of the continuum. On one end, some people say that gender is fundamentally determined by how one conceives of oneself. This position is often straw personed(?) as someone merely self-declaring to be one gender rather than another. If I feel like a cat then I am a cat. Most proponents of self-declaring view hold that the self-declaring is a consequence of, amongst other things, a deep psychological self-conception as well as dispositions and behaviors that align with the gender not typically associated with their biological sex.

On the other end of the continuum gender essentialists argue that because gender is biologically tied to sex, one cannot change their gender without changing one's chromosomes. Gender has nothing to do with self-identity and everything to do with biological sex.

There are A LOT of positions in between.

Interestingly, the trans movement has created a division between some feminists. The historically dominant feminist view holds that gender is the product of socialization (often called gender critical feminism). If we accept this then self-identity in the absence of socialization cannot on its own confer gender status. This puts traditional feminism at odds with newer strains of trans-inclusive feminism. A male who is socialized as a man, on this view, cannot be a woman even if they undergo gender reassignment surgery because they have not been socialized as a woman.

Notice that this view (you can't change genders) holds the same conclusion as conservatives but for different reasons. For essentialists you can't change genders because you can't change your chromosomes. For gender critical feminists you can't change genders because you can't change how you were socialized in the past.

Notice also that, on the gender critical view, a trans person could over time potentially become their chosen gender if others treat them that way; i.e, they undergo gendered socialization. One's position here depends on how much socialization is required and at what stages in one's life it occurs.

Most gender critical feminists also disagree with the idea implicit in transgenderism that there are these two neat boxes called "gender" that we can put ourselves or others in. "Gender is a construct, we're trying to deconstruct it, and now you're trying to preserve it just like the conservatives!"

Here's another interesting twist in the debate. Some trans-inclusive views can sort of align with gender essentialists. Our psychology is grounded in our brain biology. We know that in a population, traits are distributed along a bell-curve--regardless of biological sex. This means that some humans with male chromosomes will have a "female" psychology. Gender identity becomes tricky here. What's more important to what we most fundamentally are? Our chromosomes or our psychology? Both are grounded in biology.

On the one hand, you are you because of the psychology particular to you. For example, if you are a shy person it doesn't make sense for someone to call you an outgoing person. You both feel and behave like a shy person. Here, biology points in two directions: The (biologically grounded) brain structures underlying a person's psychology might be what our society associates with femininity while their XY chromosomes point in the other direction. If we weigh psychology and underlying brain structures more heavily, then gender is determined this way. The other position weighs chromosomes more heavily in determining gender identity.

Both replies assume that one or the other is more fundamental to gender identity. Notice that both positions also sort of agree that there is something essential about gender: masculinity and femininity are identifiable clusters of properties grounded in biology. The disagreement is over which is fundamental.

The deep psychological view of gender presents its critics with the following challenge. How do we explain the fact that despite socialization and despite chromosomal sex some people deeply and sincerely identify as the gender not typically associated with their sex? If gender is primarily the product of socialization, then how do we explain gender dysphoria in those who were never socialized for that gender? If gender is primarily chromosomal, how do we explain the existence of a psychology (grounded in brain structures) that can resist a life-time of conditioning in the other gender direction? On the essentialist view, chromosomes, by definition, code for brain structures that underlie the psychology of typical gender identity for that sex. But there exist people for whom this doesn't appear to be true.

The central task for trans-inclusive feminists, with respect to the ontological question, is to show a disanalogy between race and gender. Almost no one thinks that self-identity can determine one's race. So, trans-inclusive feminists need to argue that gender and race differ in some important respect where gender can be determined by self-identity but race can't.

These arguments exist but disagreement over their soundness still abounds--even in the neo-Marxist post-modernist universities (i.e., all of them, according to Jordan Peterson). Regardless of one's position on the issue, I think it's unfair to vilify conservatives and people on the right over the ontological issue when there isn't even consensus on the liberal left.

The Ethical Issue
That said, the left generally agrees on the ethical question: Should I refer to someone according to their preferred gender pronoun? Regardless of whether someone actually believes a trans person is really the gender they believe themselves to be, most people on the left hold that basic norms of dignity and mutual respect imply we call people by their preferred pronoun.

A loose analogue might be someone who self-identifies as a Christian but acts contrary to Jesus's teachings and has never read the Bible. If they want me to identify them a Christian, norms of basic dignity and mutual respect suggest that I do so if that's their preference. I gain nothing by insisting that they are not TRUE Christians. Of course, being a Christian isn't a biological category but it's the norms of dignity and mutual respect that ought govern behavior towards one another regardless of what my ontology tells me. That said, if I want to write a respectful philosophical paper on the necessary and sufficient conditions for being a Christian, I should be able to do this without Harris-Mint.

Finally, the norms of dignity and mutual respect hold people should not be discriminated against based on their self-identity--even if we disagree with how they self-identify. This is the benefit and responsibility of living in a free society. We cannot escape interacting with people with whom we disagree but we can choose to treat them the way we would want to be treated. As an itinerant Jew from Israel once said:
All things whatsoever ye would that men should do to you:
do ye even so to them: for this is the law and the prophets.
Thou shalt love thy neighbour as thyself

One final point regards individual liberty. Americans luuuuuuuuvz them some freedom talk. Consider what a genuine commitment to freedom entails. Respecting individual freedom to do only the things one likes and agrees with is no commitment to freedom. It's thinly disguised prejudice. A genuine commitment to individual liberty and its real test implies imparting dignity and mutual respect to those who make choices and live in ways we strongly disagree with.



Pew! Pew! Pew! Pew!

Final Remarks
There is no way to cover this entire debate in a single blog post. This topic is massive. The intent here is simply to give people an overview of some of the major positions and what they entail. If you have something you'd like to add, feel free to write me something in the comments.

Monday, May 13, 2019

Theories of Constitutional Interpretation and How to Think About Upcoming Constitutional Cases

I. Introduction
Anytime a constitutional case intersects with the culture wars, you can bet your bottom dollar that everyone on social media will
magically become a constitutional scholar--in their own minds anyway. Yes, folks, merely believing something is sufficient for it being true. But I digress (already)...

In this post, I'm going to give an overview of the various theories of constitutional interpretation and mention a few of the trade-offs that come from selecting one over the other. Later, I'll suggest how to think about up-coming constitutional cases.

As I run through the various theories, here's a philosophical question to keep in the back of your mind: What is the purpose of a justice system and a system of laws? 

II. Penumbra Cases and Judicial Discretion 
Most people pre-reflectively conceive of applying the law as a deductive practice. Laws are general commands to do or not do some behavior. If a particular case is an instantiation of a general prohibited or required act then the law applies. For example, a local law might command, "no vehicles allowed in the city park." This is a general prohibition on a class of behaviors. Suppose that someone drives their car on the walk-ways in the park. A car (particular) is a kind of vehicle (general). It follows that the law has been broken.  Easy peezy, lemon squeezy. Why do we even have lawyers? Just pay me instead.

Now, suppose you want to go to the park with your toddler child. They have a tricycle. Are they allowed to ride it on the walking paths? It's not clear. It's a vehicle. But was the intent of the law to exclude even tricycles? Does intent even matter?

Cases where it's not clear how or if the law applies are called penumbra cases. This is in contrast with the core cases, where the law unambiguously applies. (For the classic article on deduction in the law and penumbra cases, read Oliver Wendell Holmes' wonderful The Path of the Law.)

Here's another example of a penumbra case. Congress enacts a law applying a 10% tax to all imported fruits from Mexico. Does the tax apply to tomatoes? In this particular kind of case we have a conflict between "common use" language and "technical" language. Which should we go with and why? Do we go with the understanding that most consumers will have? Or of that of a biologist? In part, our answer will depend on who we think the law serves and to whom it is directed.

Considerations of social utility might also enter. We might also consider legislative intent--why did Congress enact the law in the first place? What were they hoping to achieve? As I hope you can start to see, legal interpretation is not always straight forward. If it were, we likely wouldn't need a court system. Employing bureaucrats to issue fines and sentences would be sufficient.

In the above cases, the law is unclear for reasons related to the inherent vagueness of language. In other penumbra cases, it's not clear what to do because the law is silent yet a wrong seems to have occurred. This happens because, among other reasons, it's impossible for legislators to anticipate every single act that could cause harm to another.

Consider one famous constitutional case--Rochin v. California (1949). In this case, on suspicion of drug dealing, the police entered the open door to Rochin's residence then forced open his bedroom door. When the police entered his room they noticed two capsules sitting on the bedside table. "Whose are those?" they asked. Rochin reached for them and swallowed them. The police jumped on him tried the force the capsules out of him. Unsuccessful, they handcuffed him and took him to the nearest hospital where they forcibly had his stomach pumped to produce the capsules. The state of California used the opioid capsules as evidence against Rochin. At the time there was no California law against extracting physical evidence from a suspect in this way.

The 14th Amendment forbids any state from depriving "any person of life, liberty, or property, without due process of law." Was this a violation of due process? On some interpretations, due process simply means that the existing state legal procedures are followed. If stomach-pumping wasn't prohibited under California law then due process wasn't violated. There are, of course, other ways to conceive of due process and reasons for why we might think it entails more than simple adherence to whatever state laws are in effect. We'll circle back to this later.

All this to say, in almost all cases that make it to the Supreme Court, it will not be straight-forwardly clear whether or which law applies, what meaning judges should ascribe to the text of the law, what Congress intended by enacting the law, what reasons legislators had for ratifying the law, which of these considerations should prevail when they conflict, and a whole host of other considerations. In short, judges will have to use discretion in weighing competing variables in their decisions on penumbra cases. 

A long-standing concern with granting judges discretion is that they will rule merely according to their personal convictions. The solution, some say, is to get rid of judicial discretion. But I hope from the albeit short list of examples above you are able to appreciate that judicial discretion is necessary to a functioning legal system. There are libraries of cases where it's not clear how the law properly ought to apply. Such cases can only be resolved by allowing some degree of judicial discretion.

So, here's our situation. A justice system requires judicial discretion but there is a legitimate concern that judges could end up using discretion badly. They might use it as a pretext to merely rule according to their own private values: this is particularly worrisome where there is latent or explicit racism. In a democracy, some people think that judicial rulings in penumbra cases ought to reflect the prevailing views of the community rather than a single powerful individual in that community. After all, what could be the legitimate purpose of a justice system if not to render judgements that best accord with that community's general sense of justice?

To prevent pernicious discretion we need a theory of legal interpretation (also called legal construction) that we apply consistently across cases. When we consistently apply one theory to all cases, a couple of good things might happen:
  1. We reduce the likelihood of pernicious discretion.
  2. The law becomes more predictable because we know in advance how judges might rule on hard cases. This is important because a central purpose of having laws is to govern behavior. Citizens can only make important decisions when they can reasonably predict in advance which sorts of actions will be punished and which won't.
  3. The law becomes more consistent. The thread from legislation to various later rulings across time will be held together by a common theory of interpretation. Justice--whatever it is--seems to contain the idea that like cases will be treated alike.
  4. The law becomes more stable. When the law changes rapidly over time, it becomes more difficult for people to figure how they may or may not act.
Ok, so what should our theory of construction be?

III. Theories of Constitutional Interpretation

A. Original Legislative Intent: Constitutional laws ought to be interpreted primarily by reference to the reasons why the original legislators voted for/ratified those laws. Most contemporary legal scholars reject this view. Why?

As a citizen, you need to know what you can and can't do without suffering state punishment. The words of law are the only things publicly available to you to guide these decisions. You don't have available to you the private reasons for which a legislator supported a law. For example, a legislator might vote for a law not because they support it but because they've made a deal with the opposition: I'll support your law if you support mine--i.e., the one I really care about. The reasons for which a legislator voted for a law are often not public knowledge. It's in their mind and unknowable to the public. Such a view is inconsistent with the rule of law. Instead it is rule of man (i.e., the subjective reasons of an individual).

Related to this problem is that different legislators might vote for the same law but for different reasons. If we interpret law according to legislative intent, then it's not clear who's reasons you ought to interpret as relevant to governing your behavior since the law will have been supported for different reasons.

Another closely related problem is that there can be a difference between legislators' publicly proclaimed reasons for voting for a law and their private reasons. Which ought to rule? The genuine private reasons or the ones that were politically advantageous to publicly express? 

As I said, most scholars reject legislative intent as a primary means of interpreting constitutional law for the above reasons. 

So, what else could we look at?

B. Strict Construction: On this view, judges have no interpretive discretion to interpret the text of the law except in an extremely literal way. E.g., 1st amendment says Congress shall make no law abridging freedom of speech. That means none—including prohibitions on defamation, yelling “fire” in a crowded theatre, speech to incite riot, etc…. For strict constructionists, judges have no discretion to interpret beyond a rigid literal interpretation of the legal text.

Here's a famous constitutional case to illustrate the point: In Smith v. United States (1993), Smith offered an undercover officer a machine gun as payment for illegal drugs. Federal law imposes mandatory sentence enhancement penalties, specifically 30 years for a "machinegun", if a defendant "during and in relation to . . . [a] drug trafficking crime[,] uses . . . a firearm."

He's the question: Did Smith "use" a firearm in a drug trafficking crime? A strict constructionist will say "yes." Strictly speaking, Smith used a firearm. The reasons for the legislation, the intent of the law, and so on have no bearing on interpretation. The Supreme Court ruled 6-3 that Smith had indeed "used" a firearm in a drug trafficking crime and 30 years of prison added to his drug sentence.

Although popular with some at the turn of the 20th Century, not a lot of legal scholars hold this view anymore (despite the Smith ruling). The closest scholarly view to strict construction is Scalia's textual originalism...(who, to his credit, was one of the three who opposed the majority opinion in Smith vs United States).

C. Textual Originalism: On this view, Constitutional laws ought to be interpreted primarily by reference to the meaning of the words in the text as those words were understood when the law/amendment was ratified.

Let's take a short step back to understand why the italicized part matters. Ronald Dworkin points out that the Bill of Rights contains deliberately vague abstract clauses: i.e., clauses and terms that require interpretation. Terms like "fair", "due process", "equal protection", "cruel", "reasonable" and so on by their very nature require interpretation. For example, since Plato and Aristotle people have disagreed over what fairness consists in. And so, we need some theory of construction to tell us how we ought to interpret these abstract terms since people will differ.

Consider a classic example from the 8th Amendment: i.e., the prohibition against "cruel and unusual punishment." How ought we to interpret "cruel" and "unusual"? For the textual originalist, we ought to understand words in the Constitution as they were originally understood at the time of ratification (1791). So, on this view, any punishment or means of punishment that was not considered cruel and unusual in 1791 ought to still be permissible today. Simply put, the standard for what counts as cruel and unusual was set in 1791. I'll return to this issue in a moment. But first we need to look at semantic originalism.

D. Semantic Originalism (aka Interpretivism): This distinction will be easiest to understand by way of example. Let's return to the 8th Amendment which prohibits excessive bail, excessive fines, and cruel and unusual punishments.  The semantic originalist says constitutional construction ought to focus primarily on the original text but that we ought to interpret the vague terms, like cruel and unusual, as they are understood today rather than how they were understood in 1791. (Note that the term "excessive" also requires interpretation and therefore discretion.)

Dworkin, a major proponent of semantic originalism, marks an important distinction between concepts and conceptions. A concept, like "fairness" is a general abstract ideal. People can disagree about whether an arrangement or outcome conforms with fairness because they have different conceptions of fairness. A conception is a particular view about what fairness is. Cultures--both across time and location--will have different conceptions of abstract moral terms.

Dworkin's point in advocating semantic originalism concerns how we ought to interpret the vague clauses. Cruel, unusual, fair, reasonable, due process, equal protection, excessive, necessary and proper, are all abstract concepts. Different historical times and places will have different conceptions of those general concepts. Judges ought to use discretion in order to interpret these concepts in ways that are consistent with the prevailing conceptions of the current time and culture since these are the people to whom the laws apply.

For example, in Rochin v California, the majority opinion argued that forcibly pumping a person's stomach for evidence violates our (current) conception of due process:
Coerced confessions offend the community's sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby brutalize the temper of a society. (Justice Frankfurter. My italics for emphasis)
In other words, our political morality today contains a conception of due process that goes beyond merely following whatever laws are in effect. How the state treats its citizens is also relevant to whether it complies with due process even if no particular law is broken.

Here's another example comparing legislative expectation or intent with semantic originalism: In Brown v Board of Education (1954)  it was argued that segregated schools violated the 14th Amendment; i.e., that "equal protection of the laws" forbids racial segregation in schools. In 1789, when the Amendment was ratified, those who voted for it did not expect or intend for it to prohibit the racial segregation of schools since many of them sustained segregation in their own constituencies. Also, previously in Plessy v Ferguson (1896), the Court had upheld "separate but equal" policies.

Here we see an example of a changing political morality where the particular conception of "equal protection of the law" changed. Should we understand "equal protection of the law" as it was expected to apply by those who ratified the 14th or as it was understood by the prevailing political morality in 1954? (Justices ruled 9-0 in favor of Brown). The semantic originalist supports the latter view. The textual originalist is committed to the former.

The founders were well-read in philosophy and wise. They understood that moral progress didn't end with them. It's an ongoing process. As human beings, they are fallible by nature. Their particular moral conceptions might be flawed or incomplete. In fact we know they were since many were slave-holders, didn't believe women should have the same rights as men, and so on.

On the interpretivist view, it's inconceivable that the founders expected the vague constitutional clauses to be interpreted forever according to a particular conception tied to a small subsection of the population in 1791. Other Articles and Amendments are very specific. This suggest that, where the drafters wanted to be specific, they were. The vague clauses are deliberately left vague so as to allow them to match the prevailing conceptions of the era in which they are interpreted.

There is a Jeffersonian democratic argument in favor of semantic originalism: Jefferson proclaims that "democracy is for the living." In other words,  it is an odd view of democracy and justice that insists the living be governed by the norms of the long-dead. In so far as we think law and a justice system ought to produce rulings that reflect the values of the community subject to those rulings, then semantic originalism gets it right.

Let's recap some of the important philosophical issues going on here. The main debate so far is between Scalia's textual originalism and Dworkin's semantic originalism. A good justice system produces rulings that are predictable and consistent across cases. On these criteria, Scalia's view has an edge. If we always interpret terms--concepts and other words--as they were understood in 1791 then rulings will be predictable, consistent, and stable.

However, we also want a justice system to rule in ways that are consistent with the values and conceptions of the community subject to those laws and justice system. Just like it would be odd for an American court to rule according to what the Taiwanese think is fair, cruel, excessive, etc... it's also odd to rule according to those terms as they were understood 250 years ago--especially when our conception may have changed, or when they are disputed.

Some argue that this view collapses into either majoritarianism or pernicious judicial discretion. Another important argument against semantic originalism is that it politicizes the Supreme Court. When Justices are understood to rule based on what they take to be the prevailing political morality, competing factions will want to ensure that it is their political morality that determines how vague clauses are understood. What is supposed to be an apolitical branch of government becomes politicized. One reply is to dispute whether the Supreme Court ever was apolitical and it might be best to just be open about its nature. Perhaps openly acknowledging the political nature of the Supreme Court is what is most consistent with democracy!

E. Loose Construction/“True” Originalism (Posner): Constitutional laws ought to be interpreted under the the theory of judicial interpretation that was common when the Constitutional laws were written since this is the theory that the legislators anticipated would be applied to those laws. Loose construction involves
“interpreting the will of the legislator, exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequences, or the spirit and reason of the law…As to the effects and consequences, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them.” --William Blackburn, Commentaries on the Laws of England.
In other words, interpretation requires taking into account a variety of factors that a reasonable judge with discretion may apply. The text of the law is the primary resource but we shouldn’t interpret the text in a way that gives unreasonable judgments.  Justice John Marshall, considered the greatest Supreme Court Justice of his generation, was a loose constructionist. He also, by the by, helped write the Constitution and the Bill of Rights. To summarize, true originalism requires that the Constitution be interpreted with the same theory of interpretation that its drafters thought would be applied to it.

In early constitutional cases that involved the Bill of Rights--when the drafters where still alive--we see both political parties and judges engaged in loose construction. No one assumed that the rights in the Bill of Rights codified fixed meanings. This also gives some support to semantic originalism.

The main criticism here is that with so many permissible variables for judges to appeal to, on ideological cases, they'll always find a way to simply rule according to their particular ideology. We're back to the concern over pernicious discretion.

IV. How to Be a Philosopher During the Trump Era
If you're an educator that teaches political theory and philosophy of law, the Trump administration has an upside. His administration's actions have brought constitutional questions to the mainstream consciousness and media. This provides a lot of current real-world examples to discuss in class. As you watch these cases enter the media cycle, take a step back and ask yourself which theory of construction various pundits or justices are applying.

Are they being consistent across cases? Virtually every 5-4 decision is split along ideological lines. How likely is it that justices are applying a single theory of construction consistently across cases such that they always happily always end up on their ideological side? Hint: They rarely are in highly politicized cases. (See here and here).

Here's one main inconsistency to look out for. Very often people who claim to be textual originalists will actually give "expectationist" or intent-based arguments. Let's return to Brown v Board of Education to illustrate. Someone might oppose the Brown v Board of Education ruling because, clearly, many of the ratifiers did not expect the equal protection clause to have the consequence of prohibiting segregation. In other words, the argument is based on legislative expectation (I.e., how legislators expected the laws to apply) rather than the meaning of the words in the text.

This expectationist view falls prey to the same objections as legislative intent: It's inconsistent with the rule of law. The text of the law is the public document that governs our behavior--not the private reasons and (conjectures) of legislative expectation.

The semantic originalist will say rulings ought to be governed primarily by how we understand the rights clauses such as due process, equal protection, freedom of speech, excessive, etc... today. However, this is not to say intent or expectations never matter. Everyone's familiar with the distinction between the letter and the spirit of the law....

So there you have it. Thanks to my handy-dandy summary of methods, you too can join all the other online self-anointed constitutional scholars!

V. Final Thoughts
In the introduction, I suggested you keep a question in the back of your mind: What is the purpose of a justice system and a system of laws? Our answer to this question should bear on which theory of constitutional construction we support. Selecting an answer is not so simple because we don't just want one thing from a justice system, and different theories order those desiderata differently, in turn requiring different trade-offs. We want the law to be predictable, stable, and consistent. However, even if a theory of construction gives us all that, something important is missing if it doesn't yield judgments that accord with a community's sense of justice,.

And even this criteria isn't decisive because we need to acknowledge that in a large political community there will rarely be homogenous values and conceptions. If we always favor the majority's values and conceptions then we risk subverting the very purpose of many rights clauses--to protect minorities from the tyranny of the majority. But if we always favor minority views then the justice system can fail to represent the values, beliefs, and preferences of the majority--which is also a problem. Threading the needle in a principled way is no easy task.

Next time a constitutional issue makes the front page or your favorite podcast, take a moment to reflect on these questions in the context of the issue. Hopefully, it will allow you to appreciate the complexity that often isn't captured by today's media...but is if you take a philosophy class!

Monday, April 8, 2019

How to Prevent Your Students from Plagiarizing: Stop Looking for A Technological Solution

Anyone teaching in college these days knows that plagiarism is a growing problem. Not just the incidence rate but student attitudes. Here's an excerpt from a recent NPR piece on it:

Student: Technically, I don't think it's cheating because, like, you're paying someone to write an essay, which they don't plagiarize, but they write everything on their own.

SMITH: So they may not be plagiarizing, I say, but aren't you?

UNIDENTIFIED STUDENT: That's just kind of a difficult question to answer. I don't know how to feel about it. It's kind of like a gray area.

Plagiarism happens a couple of ways: Students will find an online essay or use a friend's previous essay and pass it off as their own. In recent years, this method has become more difficult to pull off since schools have invested in anti-plagiarism software. Basically, tools like Turnitin compare the text of a student's essay to a massive database of every essay ever turned into the system as well as to webpages, and spits out a similarity score for each passage.

Recently, savvy students have found a technological way around this. There is scrambling software that takes a plagiarized paper and automatically swaps in synonyms and changes word order.

New anti-plagiarism software must now look for digital fingerprints and other features to identify plagiarism. 

This approach to preventing plagiarism is a losing battle. When you look to technology to solve a bad-actor problem you're asking for an arms race. Someone will always find a work-around. The solution to plagiarism isn't better technology but better pedagogy.

How to Make Plagiarism Extremely Unlikely Without Using Technology
Divide your assignment into 5 steps:
A) Topic selection
B) Create an outline
C) Submit a first version (NOT rough draft)
D) Peer editing 
E) Final submission and Responsiveness Score. 

Topic Selection
If you're assigning the same general essay topics that you wrote about in your undergrad you're giving a gift to plagiarizers. There are unlimited online and offline resources for core themes that you might find in an undergrad class.

Instead, assign topics that relate to current events that occurred no more that about 6 months ago. This doesn't mean you can't engage classical topics however, students must apply those themes and issues to a contemporary context/TV show/political event/movie, etc... 

For example, instead of asking my students to compare and contrast Kant vs Utilitarianism or some shit that's been done "since the dawn of time," I'll find a contemporary news story, TV episode, movie, political issue, campus issue, etc... where these considerations are relevant. If you can't find a way to apply what you're teaching to the contemporary world dafuq is the value of what you are teaching anyway?

Create an Outline
There are two ways to do this. For 1st and 2nd year students I like to give them a choice of topics and build the outline into the essay assignment. This way they are constrained in how they can present the paper and it also prevents those wild an unruly papers that completely miss the point. Under these constraints it's obviously much harder to find an essay that matches the outline I've required. 

Here are a few examples of the kind of papers I've assigned in the past:

From my Intro to Ethics class:
Black Mirror "Nose Dive"and the Meaning of Life
1) Give a general summary of the plot of the episode and the core philosophical issue. Explain it in a way that would allow someone who hadn't seen the episode to understand what happened.
2) (a) Give a one paragraph summary of Epictetus's core ideas about what is necessary for a good life.
(b) Apply Epictetus's ideas to Lacie's situation: What reasons would Epictetus give for why Lacie is unhappy? What is she doing wrong in the pursuit of happiness?
(c) What is the strongest argument you can come up with against Epictetus's assessment of Lacie's unhappiness?
(d) Offer a possible reply to the argument in (c).
(e) What is your own view? Is Epictetus's assessment correct or is there some other reason why Lacie is doomed to be unhappy? Support your view with an argument. 

From my American Political Thought class (upper level class):
Topic 1: Hamilton and Trump (Read: Hamilton's Report On Manufacturers)
Trump has proposed a tariff on imported Steel. WWHS? (What would Hamilton Say?).
Part 1: Explanation: Using direct quotes as support, explain Hamilton’s view with respect to the role of government in the economy—specifically with respect to manufacturing, primary resources, and the roll of tariffs. (Don’t apply it to the case yet, stay at the level of theory)
Part 2: Application: By appealing directly to Hamilton’s view, explain what position you think Hamilton would take on Trump’s tariffs.
Part 3: Evaluation: By appealing directly to Hamilton’s arguments, defend or object to his assessment of the goodness or badness of the tariffs. Whatever your view, consider at least one objection to it and reply to that objection.
Topic 2: Madison and Sanctuary Cities
Continuing a trend that began under Obama, Trump has directed a Federal agency to arrest and deport aliens using ‘expedited removal.’ Critics allege that this process violates several important elements of due process. In addition, there is growing evidence that many of the agents in the federal agency are not following due process. In other words, the current policy and practice in some (but not all!) ways resemble the Alien Acts of 1798. Since some states believe the federal government is overstepping its constitutional powers by violating due process, several States and cities have adopted the policy of ‘sanctuary cities’ whereby local officials and law enforcement don’t cooperate with federal immigration agencies. Before working on this question, read the following article explaining expedited removal: https://www.americanimmigrationcouncil.org/research/primer-expedited-removal (Links to an external site.)Links to an external site. (you are also encouraged to do your own research on the issue).
Part 1: Explanation: Explain Madison’s argument against the Alien Acts (Report of 1800) and why it is a cause for alarm. Use direct quotes then in your own words interpret and explain his view.
Part 2: Application: WWMS (What would Madison say?) Defend a view with respect to how Madison would assess the current widespread use of expedited removal. Be sure to explicitly refer to his arguments and positions in Report of 1800.
Part 3: Evaluation: (1) Consider at least one objection to either (a) your interpretation of what position Madison would take (i.e., someone might attribute to Madison the opposite position) OR (b) construct an objection to whatever view you attribute to Madison in Part 2. (2) Reply to the objection.
I'll bet my bottom dollar that they're not going to find any existing essays that match the assignments I've given. This doesn't rule out paying an online writing service. That's why I have them write the paper in steps...

Submit a First Draft for Peer Editing.
Students must submit a finished and polished version of their paper. It has to be what they consider to be worthy of being turned in, not a rough draft. How do I ensure this? It's not foolproof but I explain to them that it's going to be peer edited by 2 other random students in the class. A few other reasons: 
(a) I explain that they are burdening their fellow students if they give them shitty work.
(b) Putting rims on a crappy car can never make it a great car. In other words, it you turn in a D paper, no amount of editing will ever get it to a B or A. To get a top grade, you have to start with a solid foundation. 
(c) Peer pressure: Most, knowing that their peers will be reading it, will be reluctant to have their peers read crappy work since it will make them look bad.

Peer Editing.
I devote an entire class to peer editing. Each student brings 2 hard copies to class. I have a checklist and worksheet that must be followed. There are very specific instructions--it's not willy nilly "edit your peers' papers." The quality of a student's peer editing is worth 20% of their total grade for the paper assignment (10% for each peer review). They will not finish doing the peer review in class but I divide class time 50/50 for editing each paper that way if there are any major questions they can ask the author in person in class. 

Final Submission and Responsiveness Score
Here's the important part. 20% of their paper grade is for how well they respond to their two peer editors. It works like this: When I read the final paper, anytime there is an error or weakness (content or writing), I look at the peer review sheets. If it was mentioned by a peer reviewer but the author didn't take it into account, the author loses responsiveness points. If a peer reviewer didn't catch it, the peer reviewer loses points. I explain all this when we do the peer reviews and it incentivizes them to take the task seriously. Importantly, students must turn in both hard copies of their rough drafts (that their peer editors marked up) along with their final version.

By narrowly constraining the topic and structure of the assignment, I eliminate most of the risk of plagiarism. By dividing the assignment into steps that are connected through peer editing and responsiveness to peer editing, I reduce the possibility of hiring someone to write the paper. 

There is a default tendency for our culture to look to technology to solve our problems. It's true that technology can solve many of our problems but such a narrow view blinds us to non-technological solutions.

What I've offered here isn't the only way to handle plagiarism. My intent is only to highlight the idea that playing with the content and structure of assignments influences how easily students will be able to plagiarize the assignment. I have no doubt there are other pedagogical methods of reducing plagiarism (such as short in-class writing assignments).

Thursday, February 28, 2019

Stoicism vs Existentialism on the Meaning of Life

Here's a short essay I wrote for a one-page essay competition on the meaning of life. I was a dumbass and didn't read the rules properly. The rules were one page double-spaced. Mine was one page single spaced which I figured out only after I'd submitted it. Anyway, I've posted it here so it doesn't die a sad death somewhere on my hard-drive.

Existentialism vs Stoicism on the Meaning of Life

Both the existentials and the Stoics purport to provide answers to the meaning of life. Whatever that answer is, both agree that wealth, fame, career, power, graduate degrees, and other ‘externals’ have no value. They disagree, however, with respect to the reasons for externals’ non-value. And the reasons for non-value differ because the existentials and the Stoics fundamentally interpret questions about the meaning of life differently.

For existentialists the question principally concerns life’s significance. What makes life significant? Creating value and meaning. Life and the world we are thrust into are normatively barren; they contain no ready-made meanings or values. As luck would have it, human beings have the capacity to create both meaning and value through deliberate choice and action. The meaning of life and everything in it is the meaning you construct for it—the meaning you choose for it. And so, the answer to the meaning of life is for each individual to introspect and to create their own meaning and values through choice and action. Importantly, meaning and value are inherently subjective since they unfold from the private consciousness of each. Hence, externals have no value unless we choose to impart it upon them in how we structure them into our life projects.

The Stoics understand the question as asking how we can live well. The Stoic answer: By joyfully accepting of the world as it is. Contemplating the meaning of life is understood as assessing what sorts of things reliably achieve this Stoic aim. Unlike with existentialism, both the goal and path—virtuous living—are objective: they apply to everyone.

The Stoics observed that the world is full of unhappy people with wealth, successful careers, fame, and graduate degrees, etc…Externals have no value because of their merely contingent causal relation to cheerful acceptance. Worse still, since the causes of externals’ presence or absence ultimately lie outside of the causal power of our will, incorporating them into our life projects risks not only failure but necessarily undermines joyful living: If you insist on pursuing externals "of necessity you must be envious, jealous, and suspicious of those who can take away those things and plot against those who have that which is valued by you.” Externals have no value because they reliably undermine the meaning of life; i.e., joyfully accepting the world as it is.

So we know what not to pursue, now what? If we seek a life of significance, our projects must in some way conform with our internal reflections on our current and idealized selves. Meaning requires that what we do connects to our considered values and interests. Subjectivity matters for significance. Point existentialists. However, the Stoic arguments support objective constraints on what sorts of ends we ought and ought not to pursue if we want to also live well. Finally, the probability of realizing and sustaining a meaningful project falls without developing the objective virtues of courage, wisdom, self-control, and—more controversially—justice. Point Stoics.

Friday, February 22, 2019

Jussie Smollett, Bad Inferences, and Narrative

I've been seeing what I take to be a lot of bad inferences by smart people concerning the Jussie Smollet hoax. There is a long-running narrative on parts of the right (particularly online) that we should be skeptical of the authenticity of many hate crimes. The Jussie Smollet hoax is pouring gasoline on this narrative and spreading it outside its usual domain on the right.

While both the hoax and the narrative are ugly, this is a beautiful opportunity to talk about some of my favorite critical thinking concepts....

Key Concepts
Fallacy of Confirming Evidence: Sister of confirmation bias, the fallacy of confirming evidence is when we count only confirming evidence and ignore disconfirming evidence when forming our conclusions. For example, suppose I hold the belief that vaccines cause autism. I go out into the world and I see an autistic child and I find out that child was also vaccinated. Hypothesis confirmed! I see another child with autism that was vaccinated. Yet more evidence. Ah ha! Vaccines cause autism. I could do this all day long: Find autistic children, discover their vaccination status, and if its positive count it as confirmation for my hypothesis.

The obvious error is that I'm not taking into account all the children who have been vaccinated but aren't autistic. In general terms, I'm only taking into account positive evidence and ignoring disconfirming evidence as I form my view.

The fallacy of confirming evidence often works together with motivated reasoning. Rather than examine a data set then come to a conclusion, I begin with the conclusion, "vaccines cause autism", then go out into the world and carefully select only the evidence that supports this view.

Good reasoning requires that we take into account both confirming and disconfirming evidence. Which leads to our next concept...

Framing: Absolute Numbers vs Rates: It's very easy to mislead people with absolute numbers since they provide no context. For example, if you hear that 20 people got A's in my class last semester you might think my class is easy. But not so fast. To make the correct evaluation you need to know how many people were in my class total. If there were only 20 students in my class then 20 A's is a decent indication that either my class is easy or I'm the world's greatest teacher. However, if it turns out that I had 500 students in my class, then you might draw different conclusions.

The lesson here is that we cannot evaluate absolute numbers without context and using rates is an excellent way of giving context. Partisan media and groups often use absolute numbers as a way of creating a narrative.

There are a bunch more, but this should be enough to get the party started. I've listed some other ones at the end of this post for the keeners.

The Jussie Smollet Hoax and Hate Crime Hoaxes
With these critical thinking concepts in our back pocket, let's take a look at hate crime hoaxes. Several right-wing media outlets have helpfully compiled lists of all the hate crime hoaxes during the Trump presidency going back to 2016. These lists are graciously prepared in order to save us from the epidemic of liberal hate crime hoaxes aimed to delegitimize the moral bonafides of Trump and his supporters.

I counted about 20 on the list. Let's triple that for fun. That's 60 hoax hate crimes since 2016. That makes 20/year!!!! OMG we're over-run with hate crime hoaxes. All hate crimes must be hoaxes. #DontBelieveThem

Oh, wait. We need to know the total number of reported hate crimes/year. The FBI puts it at around 7000/year. Let's do some math: Let's see...7000/20....that's 0.286%. So, less that one percent of reported hate crimes are hoaxes (if we triple the actual number). Clearly this is an epidemic. Our immediate reaction to someone claiming to be the victim of a hate crime should be to disbelieve them because there's a .286% chance it's a hoax:

Of course, there's a 99% chance that it isn't but let's not let statistics interfere with the narrative folks! Let's also keep in mind that the FBI and other reporting agencies estimate that the number of actual hate crimes is much higher than the number that actually get reported. This means that the percentage of hate crimes that are hoaxes is probably even lower than 2/10th of a percent.

As a final note, suppose absolutely everyone who was subject to a hate crime is included in the FBI statistics (which is very unlikely since the groups who are typically subject to hate crimes have good reasons to fear the police). Suppose we also multiply the actual incidence of confirmed hoaxes by TEN. That would be 20x10=200 hate crime hoaxes since 2016. Which means ~67 hoaxes per year. 7000/67= ~1%. So, even in the most charitable interpretation of the hate crime hoax epidemic, the incidence rate doesn't rise above 1%.

Don't fall for the right-wing narrative. Remember, facts not feelings!

Bonus Round:
Availability Bias: This is the tendency to think that the examples that most easily come to mind are also the most representative examples of a phenomena. The availability bias explains why many people are afraid of flying. When there's an airplane accident it's all over the news. We don't hear major news reports of all the airplanes that didn't crash. So, when some people think of airplane safety the first thing that comes to mind is the crashes, not the same flights. Because these are the examples that most readily come to mind, the mind takes them to be the most representative cases of airplane safety.

In the case of hoaxes, we are inundated with stories if there is a hoax (especially if you are in a right wing media ecosystem). The 7000 legitimate cases rarely get the media coverage the hoaxes do. Since the hoaxes are the most available cases, the mind takes them as the most representative cases, and extrapolates from them general conclusions about hate crimes.

Selection Bias: A selection bias will operate in conjunction with the availability bias. Which sorts of cases are the most likely to make the news? The ones that are outliers for a variety of reasons. They often involve high profile people or are anomalous for various reasons. There are 7000 hate crimes per year. Why don't we see all of them reported? Why doesn't right wing media report all the actual cases? There's selection bias going on. That media will only pick up the ones that serve to fulfill a narrative.

Another selection bias is that those who commit hate crime hoaxes are most likely to do it for attention. They want to get noticed. Hence, these types of cases will disproportionately enter the media cycle.

Base Rate Neglect/Base Rate Fallacy: This one's a bit tricky to explain so I'll hand over the details to the wikipedia article. Suppose the incidence rate of a phenomena is low. For example, 1% of all hate crimes are hoaxes . That means that for every case, all things being equal, we should assume that there's a 1% chance that it's a hoax. However, people fixate on the particulars of each case ignoring the base rate. It's not that particulars don't matter, it's that people place too much weight on the particulars in their reasoning while putting too little on the base rate.

Monday, January 14, 2019

How to Be Epictetus in the Gym and on the Mats

Happy New Year, everyone! Welcome to my annual fitness post. Last year I wrote How to be Aristotle in the Gym, so this year I thought I'd try doing something similar with Epictetus. Epictetus is one of the 4 famous heads of the Stoic school (Zeno of Citium, Cleathes, and Chrysippus are the other 3). He is perhaps best known for his curmudgeonly and conversational style. If you've never read him, check out some of the Discourses. Many lessons are as hilarious as they are enlightening.

Anyhow, for this post, not only will I incorporate his ideas but, for fun, I'm going to adopt his tone. The focus of the post will cover mindset and how to deal with injuries and other setbacks. But first let's get a familiar with some of the main tenets of stoicism and how they relate to physical health...

[Aside: If you're looking for injury prevention technique, see my past post: Here and Here. For my current weightlifting routine go here. For increasing plant-based protein in your diet without losing gainz, go here.]

Epictetus and the (Non)Value of Physical Health
Why do you do something rather than nothing? The aim of all action is happiness. People find happiness in a variety of things and this explains why people pursue different things. But isn't the part of happiness that we most value not wealth, fame, power, or university degrees but rather how we handle the cards we are dealt?

No life is free from misfortune, chance, and adversity. But in facing such occasions we encounter opportunities to exercise and develop the genuine foundations for a stable happiness:  Strength, dignity, equanimity, composure, stability, fortitude, persistence, and courage. None of these virtues are meaningfully developed without facing some adversity. And no person can live a happy life without these traits. So, if it's a stable enduring happiness you're after, develop your virtues.

So, what about physical health? Ought I to pursue it? It seems like it's also part of a happy life.
"No my friend: enjoying health in the right way is good; making bad use of your health is bad."
(Discourse III. 20. 4)
The stoic view on physical health, like anything outside of your will, is that it is neither good nor bad. What matters is whether you make (virtuous) use of it and/or pursue it virtuously. A sound body enables a criminal to commit his crimes just as it enables a good person to do good deeds.

You should not pursue fitness merely for the sake of fitness. This is why the whole bodybuilding/fitness industry would be such a travesty for Epictetus. What do such lives amount to? They devoted 10s of thousands of hours to making their muscles puffy. What kind of life is that?

So, does this mean I should be indifferent about my health? No. A happy life is one in which we develop a beautiful soul. The body is the vessel of the soul and so it's important to care for the vessel that contains it. Notice, however, that the reasons to pursue health and fitness are purely instrumental, they are not ends in themselves.

There are a few other stoic reasons for caring about your health, most of which are inherited from Socrates/Plato.

First, whatever burdens you must bear, they are more bearable to the healthy person.
And yet what has to be borne by anyone who takes care to keep his body in good condition is far lighter and far pleasanter than those things subjected to the out of shape person. (Plato, The Republic)
Why even in the process of thinking and not using our body, it is a matter of common knowledge that grave mistakes may often be traced to bad health. And because the body is in a bad condition loss of memory, depression and discontent often attack the mind so violently as to drive out whatever knowledge it contains. (Xenophon quoting Socrates)
In short, in poor health we are more prone to bad decisions and a weakened will in the face of challenges. We are less likely to do the kinds of virtuous actions that beautify our soul. As the saying goes, "Fatigue makes cowards of us all." (Quote is attributed to both George Patton and Vince Lombardi). And the unfit are easily fatigued.

Second, physical development is practice for the much more difficult task of intellectual and moral development. It also cultivates our affinity for Beauty. For that ancients, Truth, the Good, and Beauty are inextricably connected and all are required to develop a beautiful soul.  People aren't always immediately interested in the Good or Truth; but if the three are tied together, Beauty can draw them in the right direction.

Physical beauty, however, is inferior to beauty of a soul. Having a beautiful soul requires knowing (and acting on) the True and the Good. It follows that cultivating a beautiful soul is much more difficult than developing a beautiful body. That is, is easier to get puffy muscles than it is to discover and act on moral and intellectual truth. Hence, especially for youth, it's important that they at least have some aspiration for beauty--even if it's initially of the inferior kind. This is a starting point to "show him the way to more appropriate objects of devotion" (Sherman, Stoic Warriors. P. 31)

In Epictetus's own words (concerning leading a youth to care for having a beautiful soul):
But if he should come to me befouled, dirty, with whiskers down to his knees, what can I say to him, what sort of comparison can I use to draw him on? For what has he ever concerned himself with that bears any resemblance to beauty, such that I can redirect his attention, and say, "Beauty is not there, but here"? Would you have me say to him, "Beauty lies not in being befouled, but in reason"? For does he in fact aspire to beauty? Does he show any sign of it? Go and argue with a pig, that he should not roll in the mud." (Discourse III. 23. 27.)
Some Simple Advice that Would Improve Most People's Health and Save them Money
Recall the earlier lesson that the unfit are easily fatigued, that fatigue undermines our will and judgment, which in turn interferes with developing a beautiful soul. In short, a developing a beautiful soul requires we avoid fatigue to the extent that we can.

Think of health and fitness as a three-legged table. Each leg represents one of

  • diet/nutrition, 
  • exercise, and 
  • sleep/recovery. 
If you remove one leg, the table collapses. Also, if the legs aren't in the correct proportion, the table is unstable.

Different people struggle with different "legs," however, I think sleep is the most often overlooked. You can do all the right exercises at the right intensity and eat all the right foods in the right amounts but if you aren't getting enough sleep, your efforts are soon undermined. During deep prolonged sleep, your body releases hormones necessary for recovery and growth. You simply cannot recover physically (or mentally) if these hormones aren't regularly released into your body. And, without quality sleep, these hormones will not be released into your body.

The fitness industrial complex offers no end of new supplements, magic pills, special diets, exercise plans, and exercise innovation. Some of them are useful, some of them not, most are only moderately so. But rarely do you hear about sleep, and if you do, it's often as an afterthought.

If sleep's as important as I claim it is, why don't we hear about it as much as the other two legs? The answer is simple, Big Fit doesn't make a profit off of you sleeping. They can't sell it to you (yet!).

But now I've told you what they don't want you to know. Figure out how much sleep you need and restructure your life such that you get it. You'll be surprised at what a difference it makes. It blows my mind how much money people are willing to pay for supplements of questionable efficacy yet unwilling to find a way to get one more hour of sleep a night. I'd be willing to bet anything that an extra hour of sleep will do you more good for your health than all your expensive supplements combined.
"Why are you willing to pay so much for supplements?"
"Because I want to be healthy."
"I just told you that getting an extra hour of sleep will help you much more than your supplements ever will. So, why don't you get an extra hour of sleep instead of staying up online or watching Netflix?"
"I know but I don't want to have to change my life."
"Fine. Then don't complain about your health when I've just told you how to improve it." (Epictetus, The Lost Discourses)
 Injuries and Setbacks
My first genuine interaction with Stoicism was Marcus Aurelius' Meditations. My first reaction to Stoicism was to throw the book across the room.

Why? Well, you know all those annoying self-help-y aphorisms like "Everything happens for a reason" and "Every challenge presents an opportunity"? Well, the Stoics were the OG's (original gurus) of self-help. They viewed their philosophy as being first and foremost a practical guide to living well and a means of dealing with the inevitable difficulties and misfortunes of life. There is deep wisdom in their teachings. The problem is that, after 2, 000 years of being repeated ad nauseam and out of context, they can seem like just one more vacuous platitude to scroll past in our newsfeed. Especially when it's the person posting it that most needs to heed the advice! (Tu quoque for those keeping score).

How does all this fit with the theme of this article: fitness and injuries? Let me illustrate.

Four years ago, I suffered perhaps the worst injury of my grappling career. I rolled my right ankle and tore a bunch of soft tissue. I was on crutches for 2 months, limping for a year and a half, and only recently completely pain free. I still tape my ankle every judo practice as a preventative measure.

After about 6 months of no judo, I started doing some light technique practice. Because I'd injured my dominant foot, I couldn't practice throws to my dominant (i.e., strong) side. The only way I was going to be able to train at all is if I practiced to my weak side.

It took a full 2 years before I was able to begin training to my strong side again. By that time, my weak-side throws were better than my strong side throws. After a few months, my strong side caught up. The net result is that now I can do some throws just as well to either side.

Without getting too far into judo technique, I'll explain why that's such a huge advantage. To avoid a throw in judo or wrestling, you circle away from the direction of the throw. If you walk into the direction of the throw, you make your opponent's job very easy since you are walking in the exact direction required for the throw to be successful.

So, what happens when you can throw equally well on both sides? If I attack one direction, you circle away from the throw. But circling away from a throw in one direction is also walking into the throw from the other direction. If I can throw in both directions, your defense to my initial attack actually literally walks you into my attack from the other direction.

What's the moral of the story? The simple one is that every challenge presents an opportunity. The challenge presented to me was what very easily could have been a career-ending injury. Instead, I chose to use it as an opportunity to develop a part of my game I otherwise wouldn't have spent as much time on. The net result was to move me another step closer to the ideal martial artist.

Think of your own injuries in the same way (And I promise, you will have injuries, whether you train or not!). Maybe you injure your shoulder or your back. Give your body a chance to heal from the initial injury, but now figure out how to train around your injury and eventually restrengthen it. This forces you to learn new exercises and improve your technique on ones you already know. Doing it imperfectly now has real consequences. The long run effect is to make you improve in ways you otherwise wouldn't have if circumstance hadn't forced you to.

Now, he's where part of me wants to throw the Discourses across the room. Surely, some injuries are so bad and permanent that we will forever be impaired. An extreme example might be paralysis. What kind of asshole tells someone newly paraplegic, "hey, man, you should see this as an opportunity." Now, just because what the stoics say isn't true in every case, doesn't mean it isn't true in some cases. In my case it was true.

My own view is that, psychologically, we ought to err on the side of stoicism when we are confronted by setbacks. I think there's much more harm in despair and giving up than there is in a mentality that seeks opportunity in misfortune.

He's the first lesson: Learn What You Would not Have Otherwise Learned
You're going to have setback in your fitness journey. This is the nature of life. So whachugonna do abouddit? Give up and cry like a little baby or find a way to learn and improve from it?

Moving on...

The more subtle message has to do with value. Initially--well, let's be honest--not just initially, but for a long time, I was genuinely heart-broken by my injury. I wasn't hopeful at all. Right before the injury, I was the best I'd ever been. I was on track to test for my brown belt. I was looking forward to doing well in tournaments. I was upset because the injury interfered with realizing what I valued: belt promotion, tournaments, winning.

But the stoic is concerned with internal goods: wisdom, perseverance, composure, courage, and so on. These are the goods that make us a complete person and that most reliably contribute to living a good life. These are the fruits we ought to pursue. And I ultimately gain the sweetest fruits of all by refusing to quit and continuing to persevere in the face of misfortune:
What will you make of illness?
I will expose its true nature by outdoing myself in calmness and serenity; I will neither beg the doctor's help, nor pray for death. What more could you ask? Everything, you see, that you throw at me I will transform into a blessing, a boon--something dignified, even enviable. (Discourse III. 21. 14-15)
[Y]ou have inner strengths that enable you to bear up with difficulties of every kind. You have been given fortitude, courage, and patience. Why should I worry what happens if I am armed with the virtue of fortitude? Nothing can trouble or upset me, or even seem annoying. Instead of meeting misfortune with groans and tears, I will call upon the faculty especially provided to deal with it. 
'But my nose is running!' What do you have hands for, idiot, if not to wipe it? 'But how is it right that there be running noses in the first place? Instead of thinking up protests, wouldn't it be easier just to wipe your nose? (Discourse 1. 6. 28-32.)
In other words, it is through the various challenges life inevitably sends our way that we most develop our virtues--the true and reliable foundations for a happy life. And who are you to think of yourself as so weak as not to be able to face such challenges?

Suck it up buttercup. You kan dou eet!

All that energy you spend complaining about your ankle, your back, your neck, etc... isn't going to heal it. You might as well redirect your efforts toward addressing it. Wipe your nose!

Here's the second lesson: Focus on What Really Matters
In the long run, in facing injuries and misfortune, you develop the traits that have genuine value: Fortitude, courage, perseverance, wisdom, etc...

Brace yourself: It's not puffy muscles or being able to lift a certain amount of weight that matters for a good life. It's the character traits you develop that allow you to manage and overcome, not only your current injuries and health problems, but future ones too.

This is another way of expressing the earlier Socratic point: Physical fitness and sports are a controlled environment for character development. In fitness/sports, more than in any other endeavor, there's a strong correlation between effort and results. The lessons learned and traits you develop are meant to prepare you for the more difficult domains of intellectual and moral development. Intellectual and moral challenges are infinitely more demanding than any physical ones.

Too many people think puffy muscles or round booties are the final goal and despair when they're thwarted. Such people never surpass the most basic level of development as human beings. They are incomplete human beings and they never fully achieve complete lasting and reliable foundations for a good life.

I know. It's all easy to say. Personal development is extremely difficult and takes time. However,
Nothing important comes into being overnight: even grapes and figs need time to ripen. If you say you want a fig now, I will tell you to be patient. First, you must allow the tree to flower, then put forth fruit; then you have to wait until the fruit is ripe." (Discourse 1. 17. 7.)
Fact: In pursuing your fitness goals you will get injured. You will also get sick. You will get overwhelmed with work and social obligations. These will set you back. Crying about it won't change anything. Neither will anger, sadness, or quitting. So, whatchugonna do?

Adopt that OG (Original Guru) self-help mindset: See an opportunity to learn to train differently and improve your technique. Better yet, see this as an opportunity to develop the virtues. When you face the next inevitable setback, you'll be better equipped to handle it.

Epictetus often compares the quest for happiness (through the exercise and development of virtuous character) to athletic competition. There are important disanalogies. First, in the contest of life we compete against ourselves, not against others. Second, we compete over and over, through repeated opportunities for achievement. To be defeated need not mean that we are out of the race. Life gives us new opportunities in which happiness may flower:
Even if we fail here and now, no one stops us from competing again, we don't have to wait another four years for the next Olympics, but as soon as a man picked himself up and renewed his grip on himself and shown the same enthusiasm he is allowed to compete. And if you give in again, you can compete again, and if once you win, you are like someone who never gave in. Only, don't let sheer habit make you give in readily and end up like a bad athlete going around being beaten in the whole circuit like quails that run away. (Discourse 3. 1-5)
Jigoro Kano (founder of judo) echos something similar in this wonderful quote:
The man who is at the peak of his success and the man who has just failed are in exactly the same position: Each must decide what to do next.

Saturday, December 29, 2018

Lessons for Liberals

Let's begin with what Liberals know to be self-evident: All current Liberal views are true and all non-liberal views are false. Let's add to that what everyone on the Right knows: All Liberals hold exactly the same views on all issues. There are no divisions. No subgroups. And there is certainly no nuance.

So, here's the problem for Liberals. How do we communicate the Truth to all those backward non-liberals? (If you're on the Right, simply swap 'Liberal' with 'political Right' .)

Here's what I want to think about. Suppose you had no reason at all to doubt even in the slightest your views on morality and justice. How should you go about communicating with people who hold mistaken views? In suggesting an answer, I'll touch on three interrelated themes: the means by which we communicate moral knowledge, the relationship between moral knowledge and the good life, the nature of knowledge

[This is a short portion of a paper I'm working on so many arguments aren't fully elaborated and several possible objections are left out].

Pumping Intuitions and Cultural Precedent
Why should I spare words? They cost nothing. I cannot know whether I shall help the man to whom I give advice; but I know well that I shall help someone if I advise many. I must scatter this advice by the handful. It is impossible that one who tries often should not sometimes succeed.
--Seneca, Letter XXIX paraphrasing the view he opposes.

Sometimes philosophers construct fanciful thought experiments to illustrate a point. With that in mind, please indulge me...

Suppose there were a group of people who believed that God himself spoke to them. With unwavering certainty they insisted that He taught them what is just and unjust, true and false, moral and immoral.

Upon hearing God's words, these crusaders of Truth and Justice went out into the world spreading the 'good' news to all. Some groups employed the tactics Seneca condemns above: They spread the word indiscriminately to everyone--ignoring varying degrees of receptivity, social context, or norms of discourse. They showed no concern for how others might perceive God's messengers and how that might affect receptivity to the message. Furthermore, those who hesitated to immediately recognize the Truth were condemned as foolish and stupid (at best) or evil.

Instead of engaging in patient thoughtful discourse that demonstrated mutual respect and recognized the concerns of others, many resorted to shaming, name-calling, and bullying tactics. Those who were most certain of the Truth would hold signs kinda like these...

Let's pause here to illuminate an argument that's being assumed in the background. First, knowing the truth about morality and justice is somehow important to living well. This idea has its (Western) roots in Socrates for whom knowledge, truth, justice, and the good life are deeply intertwined. A good life requires we understand the content of 'good' and 'evil' and that we correctly apply them in our daily actions. A life lived contrary to justice can never be a good life.

The above view implies it would be a bad thing if you held false beliefs about justice--not just for others but for you as well. It follows that we do good when we correct other people's false views and teach them the true views.

However, as the hypothetical case above illustrates, some ways of communicating moral truth paradoxically cause people to turn away from the truth--even if it comes direct from God's own sweet lips.

Lessons for Liberals:
The knowledge of sin is the beginning of salvation. 

At this point, some of you may have caught on to what I'm rambling about. We all know that the Liberals have the monopoly on moral truth. This isn't the issue. Liberals need to think carefully about how they convey that truth because if they don't, they will come off very much like the people above. And the outcome, with respect to conversion, is negative and predictable. In fact, there's growing evidence that it's counter-productive.

[Note: If you're uncomfortable with applying the concept of truth to justice and morality, simply substitute it with the notion of justification. I take it to be uncontroversial that some moral beliefs are better justified than others.] 

Lesson 1: 
How you treat others with whom you disagree affects how receptive they are to your message. This is true regardless of how wrong they are and how right you are. 

From the point of view of people who aren't on the Left, many on the Left behave just as badly as those in the example above. To the heretic, both appear just as smug, and they are both just as willing to condemn to damnation those who refuse to recognize it. A functioning democracy requires that people at least be open to changing their views. Part of this involves creating a dialectical environment in which people can be open to criticism and new ideas. 

How can we do this? The first step is obviously some baseline of civility and respect. The second is to initially acknowledge your interlocutor's concerns even if, ultimately, you don't think they merit it. You can evaluate their concerns later once you've established some good will. No one is going to be receptive to anyone who's first move is to dismiss their concerns out of hand.

A common objection appeals to the virtue of anger in the face of injustice. Failing to be outraged by injustice (to oneself or to others) is itself morally troublesome; you're complicit by omission. Furthermore, demands for civility unduly burden the oppressed when engaging with their oppressors. There's much to say here but I'll tender only a brief reply. 

The attitude we choose ought to be guided by what we hope to achieve with our moral and political speech. Anger in the face of injustice and unjust ideas signals disapproval and--increasingly--group membership. If that's all you intend to do, by all means, express your anger. But to the person who doesn't already hold your values, your outrage is uncompelling as a reason to abandon their view and to endorse a new one. Also, in some circles, Liberal outrage is cause for delight. Worse still, moral outrage can have the paradoxical effect of galvanizing support for the practice in question where it didn't exist previously.

If, however, I wish to persuade those who don't already hold my view I must offer them arguments and reasons. Most importantly, my arguments must begin from premises my interlocutors also accept. You can't drive someone to your destination if they never get into your car. And, they're not going to get into the car if you're yelling insults at them.

In short, if you purport to persuade, arrest your anger. Better yet, remain respectful. Whatever you do, do not confirm your outgroups' (negative) biases of your group.

(If someone's not being respectful to you, you can always walk away. I'm not sure we owe everyone respect. My point is only applies if you wish to persuade someone of your view.)

The Nature of Knowledge
"Man, the rational animal, can put up with anything except what seems to him irrational; whatever is rational is tolerable." --Epictetus

Two competing accounts of the source of knowledge run throughout the history of philosophy. The ancient Greek philosophers argued that Truth is accessible to everyone because, as rational creatures, we are sensitive to argument and reasons; that is to say, we are all sensitive to the means by which assertions are justified. Logic is objective. Argument forms are either valid or invalid. Anyone, with a little training, can evaluate the validity of an argument. Hence, everyone is equipped (when they so choose!) to evaluate arguments for what constitutes justice and for when that concept is correctly applied. This epistemological assumption inspired the Enlightenment and continues in its contemporary progeny.

On the other hand, in The Republic, Plato remarks that "there is an old quarrel between philosophy and poetry." Here we have the other strain of epistemology: one that appeals to emotion, inspiration, revelation, or personal experience. These sorts of justifications for belief escape and obscure the objective lens of reason and logic; they aren't publicly scrutable. Hence, they are at least controversial as sources of justification. Nevertheless, at least some knowledge is irreducibly subjective. Historically, Romanticism, existentialism, and post-modernism all claim subjective knowledge epistemically legitimate or valuable. 

The core philosophical issue here is whether access to moral knowledge is universal or not. Some Liberals have adopted the latter view (#NotAllLiberals): Certain groups at the intersections of race and gender have privileged access to moral knowledge. I suggest, that even if true, this is a strategic error.

Lesson 2
If we want people to know (and adopt) different moral views, we cannot do it without offering reasons and arguments that are publicly scrutable. 

Just how compelling are divine revelation or appeals to 'inspired' texts to the atheist? Liberals who rely on privileged access to moral truth engage in the same failed tactics as the kind-hearted Mormons who visited me last week.  As I sat there listening to them in my living room, I was reminded something Thomas Kuhn wrote: "Yet, whatever its force, the status of the circular argument is only that of persuasion. It cannot be made logically or even probabilistically compelling to those who refuse to step into the circle." 

By extension, telling people that their race or gender renders them incapable of grasping moral truth is self-defeating. If they're incapable of grasping it, it's unreasonable to expect them to in the first place. Moral outrage is misplaced. 

Excluding subjective knowing comes with a caveat. Some knowledge is surely subjective and morally relevant. What it's like for me to experience the world or how others' actions and words affect me aren't obviously evaluable through objective reason and argument. They're my experiences. Many these experiences do matter morally. If our theory of justice tells us that we ought avoid institutions, policies, words, and actions that make people feel as though they are being dehumanized or less-than then this subjective data matters.

But appeals to subjective experience on its own can't be the end of a discussion on justice. Many white Christians evangelicals feel as though they are a deeply persecuted group in America. Is it true? After all, until recently, they risked imprisonment for uttering "Merry Christmas." If subjective experience is our only epistemic standard, the conversation ends here: They have experiences as though they are oppressed, therefore they are oppressed. 

Yet, we know that simply feeling outraged does not on its own justify the outrage. Justification depends on how well the response 'fits.' People can be mistaken about the fit of their subjective judgments about and emotional responses to occurrences, intentions, harm, to name a few. 

Surely there are features of being oppressed or unjustly treated that, although subjectively experienced, can measure up to some publicly scrutable standards of 'fit.' Is there a(n unjustified) power imbalance? Is one treated differently than one's peers? Is there a reasonable possibility to meaningfully shape the public institutions that govern one's life? Is one disproportionately excluded from certain opportunities or public resources? Is one group disproportionately negatively affected by what is supposed to be an impartial law or policy? These are all standards within which we can begin to evaluate subjective claims of privilege, discrimination, benefit, and burden.

The idea that moral truth is accessible only to members of a select group is the secular equivalent of divine inspiration. Particularly in a democracy, pronouncements on justice demand justifications accessible to all except perhaps the most extreme and recalcitrant partisans. The alternative leads us away from democratic values and into authoritarianism--which is great when your team's in power but not so great when the pendulum inevitably swings. 

In closing, indulge me one last thought experiment: Suppose there is some truth to what I have said so far. A) How we treat people affects their receptivity to our message even if God's whispering it in our ear. B) Relying exclusively on a subjectivist/privilege epistemology is self-defeating. 

Now consider your actual epistemic situation. Consider all the beliefs you hold and have held, and all the competing possible beliefs held by others--present and future. What are the chances that, right now, you are the first human being to hold all and only true moral beliefs while everyone else, including future liberals, hold some false beliefs?

In other words, if we take seriously the non-trivial possibility that some of our current moral beliefs are false, we should be even more cautious in berating others who hold beliefs contrary to our own. Not just because of the reasons I've already suggested above but because we should think about how we will want to be treated when the inevitable happens: I.e., when someone on Twitter points out to us why we are mistaken. 

Do you treat others how you would wish to be treated if you turned out to be wrong?

I leave you with Seneca:
Do you think that the man has any thought of mending his ways who counts over his vices as if they were virtues? Therefore, as far as possible, prove yourself guilty, hunt up charges against yourself; play the part, first of accuser, then of judge, last of intercessor. 
--Seneca Letter XXVIII