How Not to Argue for Animal Rights Online: What Proponents of Animal Rights Should Learn from the Revised Dietary Guidelines on Meat-Eating

Unless you’ve been living in a cave for the last week, you have seen the new systematic review of the existing evidence concerning the health effects and dietary guidelines surrounding red meat and processed meats. Without getting into the gory details, the review evaluates of the quality of the evidence that had guided previous dietary recommendations to reduce or eliminate red and processed meats. It turns out that most of the evidence is of low quality; i.e., they are primarily observational studies which, by design, cannot show causation and are replete with confounding variables. The authors conclude that the evidence isn’t strong enough to make recommendations either way and so people should just continue eating however they’re eating. (For a good review of the review go here).

When a review, meta-analysis, or study contradicts the main trend in the literature, the correct attitude is skepticism. However, after reading the review and several reviews of the reviews by credible scientists, I think the conclusions are worth taking seriously. The quality of the evidence that supported past guidelines was weak and doesn't offer a firm foundation for recommendations one way or the other.

If there is an uncontroversial conclusion in nutritional science it’s that the greater the proportion of fruits and vegetables in one’s diet, the better. If there’s any downside to eating meat it probably comes from the trade-offs that occur with fruits and vegetables. High meat consumption usually means that fruits and veggies are a smaller proportion of your diet (you can only stuff so much food in your face). An implication of the review is that a healthful diet can contain meat as a side-dish but probably not as the main dish.

The online reception to the review was as predictable as someone commenting “BACON” on a vegan thread. Meat-eaters predictably gleefully reposted it, taking this review to be the One True Scientific Paper (while having completely ignored previous studies and reviews that had concluded the opposite). Animal rights proponents filled the internet’s comment section, desperately searching for flaws in the methodology and conflicts of interests.

Animal rights proponents have been going about this all wrong. Let me qualify that last statement. I’m referring to the current general public-facing online reaction of the animal rights community—not the philosophical literature. Among other things, they hung their moral case on contentious empirical facts. This is a losing strategy. As we should all know by now, empirical conclusions get overturned all the time in science, and especially in nutritional science.

It’s odd to see so many animal rights proponents combing through the review, grasping at straws in hopes of undermining the review. What if yet another high quality review comes out and concludes the same thing as this one? Then what? We all know that moral arguments demand moral premises. So, who cares whether there are mild health effects either way?

But it’s actually worse than that. We undermine the credibility of the animal rights cause when we cling to weak science to make our case. Let the science fall where it may. Our position shouldn’t depend on it (I’ll qualify this later). And it certainly shouldn’t depend on weak science.

This brings me to my next point. Why do animal rights proponents really cling to the hope that the empirical literature shows ill health effects for eating meat? Because we (I include myself here) want to make the prudential argument. We want to say, “you shouldn’t eat meat because it’s bad for you.” The not-too-unreasonable assumption is that many people care a lot more about themselves than anything else, especially out-of-sight farm animal welfare. We can avoid the hard work of the moral argument (and yes, it is hard work when engaging online) by offering the prudential argument instead.

But again this is a losing strategy. The moment the science flips, so does the prudential argument. And even if that weren’t the case, although people care about themselves a lot, they aren't purely rarely rational agents. They gladly trade their long-term health for a hamburger or [insert your favorite self-destructive habit] today.

Finally, the other problem with the prudential argument is that we’re being disingenuous. None of us really think it’s the prudential argument that matters for animal welfare and rights. That’s not why any of us care about animal welfare and rights.

So here’s my suggestion. In public discourse, we animal rights proponents need to return to our roots. Concern for animal welfare and rights is grounded in a moral argument—it’s not empirical and it’s not prudential. To be sure, there are some necessary empirical premises such as the fact that certain practices cause unnecessary suffering and harm to animals. However, these empirical premises are not nearly as controversial or ephemeral as the shifting nutritional science we’re trying to cling to. And as for the moral premises? Most people already accept them. Our job is to help people see their true implications through the fog of personal advantage, culture, and socialization. Our animal friends are depending on us.

Surviving and Thriving in Grad School

Here's an article I wrote on how to survive and thrive in grad school. It was published in the American Philosophical Association (APA) blog: http://blog.apaonline.org/2019/09/09/thriving-and-surviving-grad-school/

An excerpt:
One of the biggest traps you can fall into is to fail to be grateful for the extreme privilege of going to grad school. You begin to complain about how hard your life is. We all do it. But take a look around at how the majority of the world lives. Most people struggle just to survive. And if they aren’t struggling, they go to work at a job they probably wouldn’t choose if not for purely pragmatic reasons.

But you get paid to study and write about the things you love under the tutelage of experts. Think about it. Like just about every PhD student, you have a scholarship and stipend. Your education is free and–depending on the institution–you have somewhere between just enough for a simple life or a little more.

Most importantly, you chose this life. Unlike so many in this world, this life was not a choice forced upon you. Of all the possible choices you could have made after completing undergrad, you chose grad school. Nay, you had the privilege of making a choice.

Don’t let these thoughts stray far from your mind. It’s vital that you keep this attitude of gratitude throughout your studies. You chose pursuit of knowledge and wisdom. What made you think it would be easy? Or that you wouldn’t have to struggle? Isn’t that part of the reason you chose it in the first place?

When things get tough, remind yourself of the extreme privilege you have; that this was your choice; that you had a choice; that society pays you to do what you purport to love.

You are privileged beyond most of humanity for all of human history.

Be grateful.

The Next Big Misinformation Campaign: Plant-Based and Clean Meats Are Dangerous!!!

I. Introduction
Plant-based meats and clean (aka lab-grown) meats will be the next targets of a well-financed major misinformation campaign. In the long run, the traditional meat industry is not going to be able to compete on price or quality. An informed consumer will rarely pay more for an inferior or similar product. The meat industry can only survive in the long run if consumers are misinformed. The main strategy will be to confuse the public about the healthfulness and safety of next-gen meats.

There are no simple solutions to curtailing misinformation and widespread science denialism but one of the most important strategies is to get out in front of it. Decades of psychological literature tell us that once a belief is embedded in someone's mind it's extremely difficult to get them to change their view--no matter how strong the contravening argument or evidence. Science denialism, conspiracism, and misinformation spread like viruses, so it's critical to inoculate people against them before they spread.

In this post I'm going to reveal parts of the misinformation playbook so you'll be able to spot the tactics and avoid succumbing to them in advance. First, I'll introduce these core tactics through a historical lens: You'll learn how misinformation campaigns functioned in the past. Then I will explain why the next big misinformation campaign will be against plant-based and clean (lab-grown) meats. Finally, I'll explain how the core misinformation strategies will be applied to next-gen meats.

Skip Part II. if you just want to read about the upcoming campaign against next-gen meats...although, something about those who ignore history and repeating it.

II. The Misinformation and Science Denialism Playbook: A Quick Romp Through History 

Most of us are broadly familiar with the most famous historical case of science denialism and misinformation carried out by the tobacco industry. As early as the 50s there was good evidence that smoking caused lung cancer. In order to protect its industry, tobacco companies engaged in a conspiracy (yes, there are real ones!) to spread doubt and misinformation about this connection. The strategies developed by the tobacco industry have become the playbook for later misinformation, denialist, and conspiracist campaigns.

Here are a few of the core strategies and sub-strategies to look out for (This is NOT a comprehensive list):

A. Strategy: Create Doubt About the Science
Refuting a consensus is difficult. Sowing doubt is easy. This is the most fundamental strategy of all misinformation and denialist campaigns. There are two main interconnected ways to do this: (a) Sow doubt about the trustworthiness of people and institutions producing the science and (b) sow doubt about the science itself. Let's look at (b).

Refuting a trend in scientific literature is difficult but all that's really needed is to sow doubt about it in the public consciousness. Sowing doubt is fairly easy since it is the nature of science that almost no conclusion is absolutely certain. Scientific conclusion are always expressed probabilistically. This leaves open the ability to sow doubt by claiming that scientists still aren't 100% sure about something. Bad actors exploit this by calling undue attention to the intrinsic uncertainty of scientific conclusions regardless of the relative probabilities. For example, a conclusion might be 80% certain. Does the 20% uncertainty mean we throw up our hands as though there's no reasonable position to take? If you only produce headlines about uncertainty (and not relative uncertainty), this is how segments of the public will react. The tobacco industry leaned on this strategy for decades. Here are a couple other ways it's often done:

1. Ignore large trends in the literature by focusing on single studies or parts of single studies: Different studies are designed to demonstrate and investigate different kinds of conclusions: some focus on mechanisms, some on effect, some on correlation, some are retroactive, some are prospective, some seek to establish causation. No single study can do all things. That's why it's important to focus on trends in scientific literature rather than on single studies. There was a clear trend in research on the relation between lung cancer and smoking tobacco. Tobacco companies exploited the necessary incompleteness of individual studies to sow doubt. For example, an epidemiological study shows that 90% of lung cancer patients in the US were smokers. However, by design, observational studies cannot establish causation (on their own). It's not what they're for. There could be other confounding variables that explain the relation. Tobacco companies exploit this by claiming this study is bad science because it doesn't show causation. The reader's attention is diverted to a single correlational study and away from the larger trend in multiple lines of converging evidence--the hallmark of a strong scientific finding. This method should sound familiar if you follow current denialist strategies...
2. Conflate disagreement over mechanism with disagreement over effects: By the 70s, there was widespread agreement in the scientific community that smoking tobacco caused lung cancer. However, there was disagreement and uncertainty with respect to the precise mechanism by which smoking caused lung cancer. The tobacco strategy was to sow doubt in the public by promoting the idea that "scientists disagree." The message (which should sound familiar) goes something like this: "People claim that there's a scientific consensus but even among the scientists we find disagreement and uncertainty. This study says tobacco causes cancer through mechanism X, this other study says it's caused through mechanism Y. So much for scientific consensus! The scientists don't even agree among themselves. People who claim otherwise are misleading you and alarmist" The public is non-culpably mislead. The industry has pulled the ol' switcher-oo between consensus on causal relation and on mechanism! Again, this should sound familiar.
3. Use strategic omissions and framing to mislead and sow doubt: This is just a general statement of which the above are particular strategies. Consider your reaction to the following headline:

Only 10-15% of smokers get lung cancer! 

That sounds pretty low. The tobacco companies sowed doubt by arguing that the link in tenuous because 85-90% of smokers don't get lung cancer. There's probably some other variable other than tobacco that might explain the lung cancer in smokers. Smoking causing lung cancer is hoax! 

The denialist argument might seem compelling until we situate it in its correct context; i.e., we don't pluck it from all the other data surrounding the issue. First, of people who get lung cancer, 90% are smokers. Also, most smokers die of other smoking related conditions before they show signs of lung cancer. When we situate the initial lung cancer statistic in a more complete context, the case against tobacco is much more compelling. But, unlike the tobacco industry, the scientific community doesn't have billion-dollar advertising campaigns and PR firms to get inside the public's head. 

The general public rarely hears the contextualized message and if they do, they've been "skepticized" in advance. Recall, it's extremely difficult to change someone's mind once they've taken a position--especially when their identity or habit are involved (e.g., being a smoker/enjoying smoking). This is (in part) how the tobacco industry was able to forestall large-scale public opposition for half a century. It is hands down one of the most difficult deceptions to catch because it requires non-experts to have a fairly broad and deep understanding of the relevant background literature. Many people are non-culpably fooled with this tactic--which makes it a favorite among denialist campaigns.

4. Link to Studies that Don't Show What the Author Thinks They Show: This strategy is related to the above strategies but pertains to the internet age. To mislead the public, organizations can give articles the veneer of legitimate science by linking to scientific studies that don't actually support the author's point. As one study suggests, fewer than 1% of people actually click on those links anyway. They reasonably assume that the author isn't misleading them and/or actually understands the study they're linking to. 

B. Strategy: Create Doubt Regarding who the Legitimate Experts and Institutions are, and their Trustworthiness and Credibility.
 This strategy is absolutely critical. People are only likely to fall for misleading information if they disregard what the genuine experts say and/or are confused about who the genuine experts are. We can't all be experts in all things and no one has time to deeply research every single claim we hear. We have to rely on and trust experts and institutions of knowledge. For most of contemporary human history, it wasn't difficult to identify the legitimate scientific experts and institutions. They all worked at universities.

1. Reduce trust in legitimate institutions and experts: The first prong of the strategy is to discredit or at least sow doubt about the credibility, trustworthiness, and identity of the legitimate experts and institutions for an issue. The general public becomes skeptical of genuine experts opening them to misinformation.
2. Create and Fund parallel institutions: The other part of the strategy involves creating and funding parallel pseudo-experts and institutions that have the appearance of legitimacy, credibility, and impartiality in order to further confuse the public. In the 70s and 80s ideological think tanks and "consumer advocacy" groups blossomed. These institutions often select names straight out of Orwell. For example, the tobacco industry hired several prominent cold war physicists to head their newly created institution, "The Council for Tobacco Research." From the point of view of the public, they now hear news reports that scientists' from legitimate and impartial-sounding Council for Tobacco Research found no link between tobacco and lung cancer. Never mind that the scientists are physicists, not cancer researchers, and that the legitimate-sounding Council for Tobacco Research is an industry-funded organization with a mission to publish misleading and biased research and to discredit legitimate research. This strategy, once again, should sound familiar.
3. Find and/or Create Ideological or Interest-Based Allies: This one's straight forward enough. Arguments and talking points are much more credible if they come from a group or person not directly affiliated with the interest group. For example, one prong of the tobacco industry's strategy in the 80s was to form alliances with libertarian groups such as the Tea Party, Americans for Prosperity, and Freedomworks to "organically" oppose smoke-free zones and tobacco taxes. The plan was to "create the appearance of broad opposition to tobacco control policies by attempting to create a grassroots smokers’ rights movement. Simultaneously, they funded and worked through third-party groups, such as Citizens for a Sound Economy [...]."Link The veneer of authentic citizen engagement lends legitimacy to the position.

C. Invoke fear and anger: 
Involving emotions applies to every aspect of misinformation. Understanding the role of emotions is critical to understanding how misinformation, denialism, and conspiracism spread so quickly today. Fear and anger have important effects on our cognitive functioning and our online behavior.

1. Fear makes us risk averse and so we are more likely to oppose changes to the status quo. Although fear also motivates information-seeking, it causes us to process information in a biased way--giving more weight to the fear-inducing information. This is why fear is commonly used in misinformation against new technologies and proposed government regulation. Fear can be used by both sides. Propagators of misinformation understand this so they make sure fear is directed at their target.
   
   For example, people have reason to be fearful of the effects of smoking but--especially in the US--there's a culture of fear surrounding government shaping individuals' decisions. What follows are political fear-based campaigns about governments banning tobacco or prohibiting smoking in--gasp--public spaces like restaurants and airplanes. (Yes, young readers, people used to smoke in restaurants and airplanes). All the while, the fact that we should be fearful of lung and mouth cancer and cardiovascular disease is pushed out of the discussion in the name of individual rights and freedoms. A word to the wise: When you hear an industry arguing for freedom of choice, be skeptical. What they usually mean is freedom from accountability and civic responsibility.
2. Anger reduces our cognitive capacities and exacerbates motivated reasoning. When we're angry, we'll passionately defend false views so long as they align with our prior convictions. Anger is particularly useful in spreading conspiracism and denialism. Who wouldn't be angry to "discover" that some company, the government, or an industry is trying to do evil things to us? Once you're worked up, you're going to share the bejesus out of that article to warn everyone.
3. Finally, emotions are important for spreading misinformation because emotionally charged messages are much more likely to be shared than posts and articles that are emotionally neutral.

I could go on.

The playbook has become long and sophisticated. Learning all the techniques would require taking a course which, as your luck would have it, I have built and offer online free of charge!

In what follows, I want to talk about the next big misinformation campaign. Until now, it's only been a trickle, but you can bet your bottom dollar it will be in full force within 2 years (I'm calling it here!). So you and others don't fall prey, I'm going to administer your vaccine.

III. The Next Big Misinformation Campaign: Plant-Based and Clean (i.e., Lab Grown) Meats
A. Who and Why?
The old adage in journalism is "follow the money." To be sure, this is a good rule of thumb but on its own it doesn't show guilt or malevolence. However, we can make a reasonable inference based on past experiences. Very rarely has an industry ever taken an existential threat lying down. And plant-based/clean meats ARE an existential threat to meat producers.

The success of next-gen meats has caught just about everyone by surprise. But to those familiar with this new industry's strategy, their wide-spread success should be less surprising. The long-term term goal is to offer a better product (than traditional meat) at a lower price with a smaller environmental footprint and with no animal suffering.

Think about it.

Someone presents you with a cow and a plant-based or lab-grown meat. They say to you that the plant-based/clean meat

• tastes just as good or better than the cow; 
• has a similar nutritional profile, 
• creates almost no environmental footprint relative to beef (Beyond Burgers required 99% less water, 93% less land use, 90% fewer greenhouse gasses, and 46% less energy); and
• and it's cheaper. 

Then they tell you:

(a) I can sell you this plant-based/clean burger or 

(b) you can pay a little more and I can drive a bolt through this baby cow's skull, slice up its carcass, and give you a slab.  

Which do you prefer?

That essentially the choice consumers will have within about 5 years. (They almost have it now except they have to pay an extra dollar for the next-gen meat instead.)

As a percentage of the population, very few--with full information--will ask you to slaughter the baby cow. Who's going to say, "No, I want to pay more for the same product that causes more environmental damage and animal suffering." Humans are irrational, but not all of them all of the time. Most of us, to some degree and on some occasions, act contrary to our own beliefs and values. The genius behind the next-gen strategy is that it doesn't rely on ethics but on economics. You can completely ignore environmental and animal welfare considerations and still get everything you want for less. Most humans will choose the cheaper product, especially if its superior assuming full information.

The traditional meat industry has 3 ways of responding to this existential threat:

1. Make a superior product, 
2. Drop the price or 
3. Ensure that consumers don't have full information. 

The first strategy is only a short-term solution because next-gen meat technology is only in its infancy. The products will only get better, more diverse, and cheaper. And whatever can be cut from an animal's carcass can also be replicated and improved in a lab.

The second strategy isn't sustainable either. The traditional meat industry is already massively subsidized directly and indirectly. Dropping prices means further socializing the cost of meat and the meat industry. At some point, tax-payers will wonder whether it's worth continuing to artificially prop up an obsolete industry.

That leaves strategy #3. Ensure consumers aren't fully informed. AKA, make sure they're misinformed.

B. But How?
Here is where it's helpful to become familiar with some of the tried-and-true strategies for misinformation. Let me tell you how the meat industry is going undertake its misinformation campaign by taking you through the strategies I mentioned in the introduction.

1. They are going to sow doubt about the relative safety of the new products. Never mind that all such products undergo rigorous safety testing. Here's how they're going to do it:

a. Appeal to scientific ignorance/chemophobia: They will list scary sounding chemicals that constitute or are used in the production of next-gen meat. Next to it, they'll put a chunk of traditional meat and write, "Ingredients: just meat." You'll see memes and articles bravely proclaiming, "I'm not putting a bunch of chemicals in my body." (Ok, stop breathing then...) This is a common strategy employed already by the organic lobby. But as you can see from the picture to the right, you can make any food sound scary to many people if you simply list its chemical make-up. You could do the same for the traditional meat.

b. Link to animal studies that don't show what they purport to show: There are a few ways to do this. But let me first point out what is widely understood in the scientific community: that even well-conducted animal studies are poor predictors for effects on humans.

1. Publish studies that use a dose/body weight ratio on lab animals that massively exceeds what a human would ever reasonably consume. This allows you to write headlines that say, "Lab rats that consumed X found in next-gen meat Y got cancer/became obese/[insert any health problem]. People don't click past the headline so no need to worry about people actually reading the study.
2. Statistical fishing/p-hacking. If you test for enough variables, statistical laws imply you will always find some statistical correlation between two of the many variables. Of course, using this method makes it impossible to distinguish between statistical correlation and genuine causation. No matter. All you need is the headline or link saying that "chemical X in next-gen meat possibly linked to [insert negative health outcome]." Gee, better avoid that product just in case--and completely ignore that consuming traditional meat has well-established correlations to poor health outcomes...
3. Sow Doubt/Confusion about the Nutritional Differences. They will apply statistical fishing to compare every possible nutrient between traditional meat and the target next-gen meat. Obviously the results will be mixed but they will select the few nutrients where traditional meat is superior. They will not advertise the metrics where traditional is inferior. Then they will present the information is a misleading context.
   
   For example, traditional meat has 4.8 mg of zinc/serving. Next-gen meat, let's stipulate, has 1mg/serving. What does this mean for overall health? What percentage is this of the recommended daily allowance? These answers will be buried deep in the article. And how relevant is it anyway? No one is going to eat next-gen meat as their one and only food just like no one does with traditional meat. But the headline you'll read is: TRADITIONAL MEAT CONTAINS 500% MORE ZINC THAN [INSERT NEXT GEN-MEAT]!!!
   
   And just like that, all of a sudden everyone is oh-so-concerned about maximizing their zinc intake...and the only way to get it is through lots and lots of traditional meat. No other foods contain zinc. 

2. Find Natural Allies and/or Create Them: Finding natural allies isn't that hard. Here's one thing we know about humans. If you provide them with evidence (no matter how weak) that confirms what they already believe they will drink that kool aid like an unsupervised 7 seven-year-old at a birthday party. This partly explained why so many smokers were so easily mislead by tobacco misinformation. It confirmed what they already wanted to be true and it involved an activity or belief central to their identity. Here are a few groups who will be naturally sympathetic to the meat industry where you should expect to find pro-traditional meat propaganda.

1. Cross fit community.
2. Paleo diet community.
3. Anti-GMO crowd.
4. The alt-right. 

All of these groups, for various cultural, ideological, and doxastic reasons, are invested in traditional meat being superior (for any criterion) to whatever plant-based/clean meat companies come up with. There is no amount of evidence that will convince them to the contrary because their pro-traditional meat stance grows out of beliefs central to their identity. Challenging those beliefs challenges the foundations of their identity which means they will be very defensive.

Cross-fitters and paleo diet adherents believe that if something is "natural" (whatever that means) or was part of our early evolutionary diet then health-wise it's automatically better for you. Anti-GMO groups believe the same but also add a moral element (here's another study) tied to biological essentialism and teleological thinking: Food that is created in a lab is objectionably messing with nature. And it's doubly bad since GE foods are created by a profit-motivated corporations (which actually isn't true of many GE foods; e.g., GE plantains and cassava in Africa, Golden Rice, and Bt eggplant in Bangladesh and India). Of course, we all know that meat farmers and distributors are driven purely by altruism. They don't care one fig if they make a profit.

Furthermore, for this group, safety research and standards can't be trusted because the FDA has been captured by industry. Even if this were entirely true, such groups ignore or trivialize high quality impartial research and major trends in the overall literature. (I'll return to the anti-GMO/organic crowd later).

Various groups on the political right define themselves in part as "not the left." And they don't mean just politically. The left disproportionately consumes plant-based diets, therefore identity politics logic dictates that people on the right have to eat a lot of meat. Makes sense, right? For someone on the alt-right to consume a predominantly plant-based diet would mean they are the same as a global warming-believing liberal. That's simply not an alternative.

It's important to note that it's much more convincing to the generally ambivalent public if there's (the appearance of) "grassroots" opposition and skepticism toward next-gen meats. We trust the people in our social networks and so our guard is down when these stories enter our newsfeeds via friends and trusted news outlets. Given this social dynamic, it's no surprise that in 2018, 7/10 of the top health articles shared on social media were false or misleading.

3. Sow Confusion and Doubt Over Who Are Trustworthy Experts: 

1. Personal attacks on scientists working on next-gen meats in order to undermine their credibility in order to cast doubt on their science. The easiest way to do this is through freedom of information requests. Muck-rakers comb through thousands of emails then use highly decontextualized excerpts from those emails in order to create an illusion of nefarious deeds or bad science.
2. Pseudo Institutions of Knowledge: Following the tobacco playbook, watch for what look like neutral and legitimate consumer advocacy websites and research groups that have the trappings of legitimacy. Often googling "who funds [insert institution]" will reveal who's behind the curtain. You can frequently (but not always) find this information on wikipedia.
3. "Experts": As I said, often the best way to sow doubt is to get people with natural alliances to do the work for you. It comes off as more authentic which avoids trigging our skeptical sensibilities. Despite the fact that the "wellness" and fitness industry is notorious for bad science millions of people take advice from self-professed gurus.
   
   For example, Max Lugavere, a Hollywood "fitness guru" is already (probably non-culpably) supporting traditional meat. He is a regular on Dr. Oz for health and fitness segments. Must be a genuine expert. He's on TV, after all. Credentials? Not so much. He has an undergraduate degree in film and psychology yet bills himself as a health and science journalist. (Link)
   Here is from a recent Tweet. 

Oh, Max...too predictable!

Max's followers might fall for that clap-trap, but not mine! Right, guys?

IV. Final Thoughts (and Prayers)

Here are a few random thoughts:

1. My own view is that most people in the general public who fall for denialism and misinformation are non-culpable for two main reasons: 

a) First, misinformation campaigns have risen to the level of a science. These campaigns are extremely well-resourced and well-executed by professionals who know exactly what they are doing and have the experiences of past campaigns to guide them. 

b) Second, knowledge requires social trust, and misinformation campaigns exploit this. For example, most of us know that food contains carbohydrates, proteins, and fats. But could you run the lab experiments to verify this first-hand? Most of us know that our cells contain DNA. But have you seen the DNA? How you conducted the lab experiments that identify it? Most of us know that electricity is the flow of elections. But could you construct the lab experiment to prove it? Etc... The point is, pretty much everything scientific we know about the world requires that we trust the authority of someone who studies that thing (or their indirect accounts in textbooks). If we trust the wrong people, we believe the wrong things. That's how you get flat-earthers.

Misinformation campaigns can only work by manipulating and exploiting social trust. They must sow doubt in the legitimacy of genuine experts and get you to place trust in their constructed experts and institutions. These pseudo-experts and pseudo institutions have all the outward appearances of genuine experts and institutions. From the point of view of the public, the legitimate and illegitimate institutions are outwardly indistinguishable. Most denialists are victims of misinformation campaigns that have cleverly manipulated the fact that we must trust others to learn about the world.

2. The most interesting groups to watch in this issue will be the anti-GMO/pro-organic/animal rights groups since their allegiances will be split. Many anti-GMO and pro-organic groups espouse  environmentalist values. Next-gen meats offer massive environmental improvements over traditional meats. The problem is that the anti-GMO and pro-organic groups subscribe to "natural is better" and purity norms, biological essentialism, and teleological thinking with respect to nature. On their view, nothing made in a lab could possibly be healthy or good for the environment--especially not something made by a corporation for profit. These groups are extremely weary of biotech. Many will sabotage their own ends by falling prey to the inevitable fear-mongering about lab-made foods.

A similar issue confronts animal rights/vegan groups. Their primary value (as a group) is to protect animal rights and reduce animal suffering. Sadly, many of people in these groups are also strongly anti-biotech. They'll have to choose between supporting biotech and massively reducing animal suffering. I anticipate some fierce in-group battles.

Safety testing is another issue for these groups that will certainly lead to internal war. Members of these groups (and others) will demand impossibly high levels of safety testing given their general anti-biotech/anti-corporate dispositions. However, the safety standards they demand probably can't be accomplished without some animal testing. Do you test on some animals to save billions of future ones? On the one side you'll have absolutists--the end can never justify the means--and on the other are the pragmatists/utilitarians. Expect things to get nasty. I hope that the absolutists come to understand that sometimes future consequences matter more that mere principle or at least that the absolutists are small in number. 

Gender, Sex, and Transgender Debates

Introduction

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.

and

Thou shalt love thy neighbour as thyself

Amen.

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.

USA! USA! USA!

FREEDOM!!!!

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.

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!

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.

Conclusion:

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).