On Originalism and Omelets

Q: How many eggs do French people like to have for breakfast?

A: One is an oeuf.

Hilarious!  That’s about the quality of Jonah Goldberg’s recent posting at NRO, titled “Close Encounters with a ‘Living Constitution'”.

Here’s the setup.  Goldberg orders an Arizona Omelet at the diner, the Red Flame.  But the server brings him a bowl of oatmeal.  When Goldberg objects that he didn’t order this, the server replies that he, in fact, did order the oatmeal.

“This is oatmeal,” I’d say. “The menu says that the Arizona Omelet has cheese and onions and jalapenos in it. It also says it’s an omelet.”

Waitress: “Well, we here at the Red Flame believe that the menu is a living, breathing document that changes with the times. Oatmeal is healthier than an omelet, and we feel that people should eat more of it. So, we only serve oatmeal, but we call it by different names.

The point, as we see, given the analogy, is that taking X as a ‘living document’ is just to impose one’s will on the document.  Words don’t mean what they mean at all.  Or they mean what we just want them to mean.  And here’s how Goldberg sees the plausibility of this line of thought:

That’s more like how the doctrine of the “Living Constitution” works in real life. A judge makes a small leap of interpretation that seems reasonable — say, replacing onions with shallots, which after all, are a kind of onion. Then the next judge makes another incremental hop in interpretation. And then another. And another. Until eventually the waitress brings me the head of Alfredo Garcia

So Goldberg’s reasoning is that because it happens in ‘incremental steps,’ there will be no constraint on how to read the Constitution or a menu, for that matter.   But the problem is that there must still be a ‘reasonable interpretation’ at each of these steps.  Red onions for shallots… and note what makes it reasonable is that they are kinds of onions.  (And note that it’s a replacement, not a re-interpretation.)
But here’s the big lie to the reasoning — none of the ‘reasonable’ replacements actually end up with what Goldberg takes as obvious — that there’s a series of reasonable interpretations of ‘omelet’ that yields a bowl of oatmeal.
Goldberg closes by noting how he sees the dialectical situation:
There are some issues where I think liberals have a sincerely held, rational, and legitimate point of view that I simply disagree with. But the doctrine of the Living Constitution is not one of them.
You’ve got to be freakin’ kidding me.  At no point in time does someone who cares about individual rights thinks that there would be a problem with the dead hand?
And so, we see a fallacy double-dip.  First, there’s the faulty analogy between the situation of Living Document interpretation of the Constitution and the Red Fire Diner’s omelet, and the case Goldberg makes for it as a slippery slope.
The ur-fallacy here is the slippery slope, since reasonable interpretations don’t have the all-too-easy-slide to voluntarist re-writing, the slope isn’t slippery.  So the two cases aren’t analogous.  Oh well, if this is how well Goldberg thinks who hold Living Document views reason, then of course he shouldn’t think there’s a rational and reasonable disagreement.  But he’s not reasonably held that view.

Spitballs and Iron Men #2

One more example of a spitball getting ironmanned when challenged.  Trump tweeted that millions of undocumented immigrants voted in the 2016 election.

And he later told congressional leadership that the number was between 3 and 5 million.  That’s how he explained losing the popular vote.

In his recent Time interview with Michael Sherer, Trump clarifies the claim:

Well now if you take a look at the votes, when I say that, I mean mostly they register wrong, in other words, for the votes, they register incorrectly, and/or illegally. And they then vote. You have tremendous numbers of people. In fact I’m forming a committee on it.

But there’s no evidence that 3 million people voted with…

We’ll see after the committee. I have people say it was more than that. We will see after we have. But there will be, we are forming a committee. And we are going to do a study on it, a very serious problem.

But this is, first, different from the claim that 3 million ‘illegals’ voted — there’s a difference between illegals voting and illegal votes, right?  Second, this is another instance of the iron-manning of a spitball by turning it from an assertion to a query about something really important.  If Trump is right, then it’s something that should be reformed.  And perhaps we should investigate how widely it is the case that there is voter fraud of all the kinds he alleges.  But there’s a difference between claiming that it’s happening and holding that we should find out whether it is happening.  If you don’t have evidence for it at the time of the speech act, the claiming is wrong.  But that’s of course, what the iron-manning afterwards does — you get the benefit of claiming but without having to defend the claim.

Spitballing and iron men

A few months back, Rob Talisse and I introduced the notion of spitballing.  Here’s the rough version of how the notion works:

At its core, spitballing works as follows: One makes multiple contributions to a discussion, often as fast as one can think them up (and certainly faster than one can think them through). Some contributions may be insightful, others less so, but all are overtly provocative. What is most important, though, is that each installment express a single, self-contained thought. Accordingly, slogans are the spitballer’s dialectical currency. As the metaphor of the spitball goes, one keeps tossing until something sticks; hence it helps if one’s slogans are tinged with something disagreeable or slightly beyond the pale. As the spitballer’s interlocutors attempt to reply to what he has said, the spitballer resolutely continues spitballing.

If the spitballer must answer for an inaccurate or otherwise objectionable contribution, crying foul that others don’t interpret their statements properly is the default strategy:

Accordingly, when a spitballer’s pronouncement is subjected to critical analysis in, say, print media, the spitballer’s response is simply to return to the confines of the television studio to denounce the interpretation of the slogan that was scrutinized. The denouncement begins with an indignant “what I actually said was . . .” and is followed with the introduction of a new slogan –hence a new provocation – which is no more precise or transparent than the original. Thus the process begins anew.

Our target for the original posting was then candidate Trump, and now it’s President Trump.  The new developments with the investigations of Trump’s wiretapping tweets have exactly the form of sptiball-then-ironman from before.  First, the spitballs

OK, and then the next day, plenty of folks (including  FBI director James Comey) come out to say these claims are unsubstantiated.  Then Kellyanne Conway suggested that it’s possible to surveil through TV sets and microwaves.  Sean Spicer then clarified some of the tweets noting that (at least in two of them) ‘wiretapping’ is in quote marks, which means that it really stands for… general surveillance.  And presumably ‘Trump Tower’ means the Trump Campaign and its representatives.   And by ‘President Obama,’ he really means someone in a government agency. And now that House Intelligence Committee Chairman, Devin Nunes (R-CA) has announced that athere is evidence that there was information collected incidentally and widely disseminated among the intelligence community, there is the sense that the Trump claim has been vindicated.

First, consider Trump himself.  In the “Is Truth Dead?” Time Magazine interview, Trump, in responding to the question about the tweets and their troubles, responds:

When I said wiretapping, it was in quotes. Because a wiretapping is, you know today it is different than wire tapping. It is just a good description. But wiretapping was in quotes. What I’m talking about is surveillance. And today, [House Intelligence Committee Chairman] Devin Nunes just had a news conference.. . . That means surveillance and various other things.

Note, however, that in one, ‘wiretapping’ was not in quotes.  But, hey, when it’s Twitter, maybe nuance is lost.  Wait…

The iron-manning move went into full swing afterwards, which turned not just to the re-interpretation strategy, but to the “if this accusation has anything to which it could be applied, then it’s really important” move.  And so, Johnathan Turley, at The Hill:

Of course, the original tweets were poorly worded and inappropriate as a way for a president to raise this issue. Moreover, the inadvertent surveillance is rightfully distinguished from the original suggestion of a targeting of Trump. However, this would still be a very serious matter if intelligence officials acted to unmask the names and distribute them.

And the point of spitballing is made — one makes whatever accusation against the opposition one wants.  Then these accusations are reinterpreted to fit the evidence and made to be more alarm bells about possibilities of really bad things.

Literally Analogous

Analogies, like metaphors, require that things not be identical.  But have some relevant similarities.  And so, if you’re arguing that because X is like Y, we should treat X-cases like Y-case… you’re also committing to the thought that Xs are not Ys.  Just, well, like Ys.  That’s it.  But if you said, “Cases of X literally are cases of Y,” that’s a different claim.

Dennis Prager at Townhall argues that entitlements are like drugs and alchohol, because they create addictions to them.  Especially when they are given for free and in large quantities.  And then as a consequence, they create dependent and entitled populations.  And he then concludes:

In this sense, the left in every country — in America, the Democratic Party — should literally be regarded as a drug dealer. Virtually every American given a free benefit becomes an addict who relies more and more on his dealer, which is exactly what the left seeks.

What’s funny is that Prager’s argument is no longer about what entitlements do to the people who are offered them, his line is about what entitlements do to the people who offer them.  But, of course, is he really saying of those who hold that there should be food stamps that they are to be treated literally like drug dealers?

Of course, the point is that when folks get carried away with their analogies, they forget that they aren’t identities.  Oh, and the other problem is that maybe Prager’s been infected by the widespread use of ‘literally’ as an emphatic device.

 

The real hypocrites

It’s Saint Patrick’s day. Where I come from, Michigan, it means corned beef and cabbage.  Thank goodness those days are over. Should you suffer a dearth of Irish today, you can watch this video. It will sustain you for a year.

Twitter brings us today’s topic–tu quoque. You can’t get enough of this stuff.

That’s Erick Erickson, a true Christian. Consider the second tweet. It could be one of two thoughts.

First, the (in this case non-Christian) people who allege hypocrisy are not qualified to determine whether Christians are hypocrites are not. They’re not Christians, so they don’t know anything about what Christian dogma entails.

This is clearly false. They could be ex-Christians. Or they could just know what Christian morality requires. You can get this from books nowadays, or even the internet.

A second is that people who are not Christians are so sin-filled that they are morally unqualified to criticize anyone. This also seems wrong, because I can be a sin-filled monster but still recognize inconsistencies.

I suppose in the end there is a confusion about the status of outsiders who criticize you. In one sense, their input isn’t directed at improving your overall view (which they think is generally false). This fact, however, does not disqualify them from having any view about your claims.

Since it’s St.Patrick’s day, let’s close with a tweet-quoque by an Irishman:

 

Reductio mad libitum

Mad Libs is a kids game, where a familiar story has a number of nouns, verbs, adjectives, and proper names taken out, and players provide their own without knowing the story.  It makes for great game time, and when you allow the kids liberal use of some naughty terms, things get pretty hilarious.  (Pro tip: ‘diaper’ and ‘butt’ are always an excellent nouns to use if you’re in a pinch. But only one per story, else you’ve overplayed your hand.)

Folks use a Mad Libs strategy sometimes when making an argument by analogy.  And so when one criticizes someone for saying something that sounds racist, you might say, “Replace all those times you said ‘Romanian’ with ‘blacks,’ and see how that sounds…”

The crucial thing for all the cases, of course, is that the replacement instances are of roughly the same type.  That’s why it’s an argument by analogy — if the two things aren’t analogous, then the exercise is pointless.

George Will’s new column at NRO is a defense of the Trump plan to gut and/or eliminate the National Endowment for the Arts.  Will does make a few sensible points along the way — especially that the NEA is a regressive wealth distributor (most of the folks who get the support are already with money).  And, of course he leads with the old kulturkampf line about the government shouldn’t be using taxpayer money to fund things like the Piss Christ, Mapelthorpe’s photos, and other objectionable messes.  These, of course, are more arguments against how the NEA has been run, and less arguments against the NEA.  He closes, after conceding that art, for the most part, is a good thing, with the following:

Distilled to its essence, the argument for the NEA is: Art is a Good Thing, therefore a government subsidy for it is a Good Deed. To appreciate the non sequitur, substitute “macaroni and cheese” for “art.”

Holy moly!  OK.  I’ll limit myself to three things.

#1:  The argument overyields.  Now replace “art” with “national defense” or “law enforcement.”  Once the line is put that way, NO government program is defensible.  (Don’t tell small government Republicans!)

#2: We do have government subsidies for macaroni and cheese.  It’s called  the Supplemental Nutrition Assistance Program.  So many boxes of mac’n’cheese have been purchased with government help.  (Moreover, don’t forget the government support for the farming and manufacturing sectors that produced it!)

#3:  I smell some straw on that opponent.  With ‘GOOD DEED’, Will has conflated a good thing to do with a thing that is good for the populace, or is in the interest of the state.  Contributing to the common good, even if it is indirectly, is what this is about.  Calling it a ‘good deed’ is a mis- description of what the supporters of the NEH see the agency out to do.  This is not a distillation of essence, but rather a snifter of nonsense.

Norms of Assertion #2

In more news of assertions made without backing (see previous post about the various norms of assertion), Joe Scarborough Tweeted:

Two assertions, really.  #1: Trump leaked the return, and #2: He did it as a distraction.

The backing: That it’s “painfully obvious.”  Pretty weak backing.  But, hey, it’s Twitter.

Interestingly, Scarborough was challenged by one of Trump’s lawyers, Michael Cohen — in particular, that he should have some support for such claims:

A pretty apt response, with a little heat to it.  It is ironic, however, that a Trump representative is making hay out of someone making unsubstantiated claims.  Oh, and then Scarborough took the bait:

Oy vey.  Wrong way to do this.

Scarborough is committing two errors here.  First, is what’s been called the Free Speech FallacyJohn’s got a nice bit on it HERE, and we’ve got an entry in the coming Bad Arguments: 100 of the Most Important Important Fallacies.  Here’s our line:

The fallacy arises when a contributor to a critical exchange confuses the protected freedom of expressing an opinion with correlate obligations to reply to freely expressed critical opinions of others.

And note, that using the Free Speech Fallacy is a form of ignoratio argument — that we change what’s being criticized from what was said to whether one has the right to say it.  (I’d had an earlier point about this HERE, which I’d called the ‘meta-move’).   So taking the first amendment strategy is no defense against the request/demand for evidence.  Nor is it a reply to the insult that he has a big mouth.  In fact, some replies seem to confirm the accusations!

The second error is with taking a request, admittedly with heat, as purely intimidation.  In a way, I think this is a bit of straw-manning, which is to focus on the tone of a challenge instead of the content, and then make the case that someone is using an ad baculum or some other scare tactic.

Imagine that A gives a crappy argument, perhaps that B has made some moral error.  B, in reply, says something like:

Look, asshole, if you’re going to make a charge like that, you’ve got to have better grounds.  Seriously, what’s wrong with you?

And A replies:

Now who’s the asshole… defending yourself with an ad hominem against me?

For sure, B put some stank on the reply, but there wasn’t an argument from A’s being an asshole to A making unsubstantiated claims.  Rather, it was from A’s making unsubstantiated claims to A being an asshole.  Mistaking heat of reply with a premise of argument or with intimidation is to mistake tone and content.  And, you know, grownups who have hard conversations have to keep the two distinct all the time.

Norms of Assertion

Frans van Eemeren and Rob Grootendorst have a section titled 10 Commandments of Reasonable Discussion to close their masterwork, A Systematic Theory of Argumentation.   The second and ninth are of import.

2. Discussants who advance a standpoint may not  refuse to defend his standpoint when requested to do so. (p. 191)

9. Inconclusive defenses of standpoints may not lead to maintaining those standpoints…. (p.195)

It’s a truism that if you assert that p and you’re asked to give reasons, you should.  Moreover, it seems clear that if you don’t have any reasons to hold p true, then you should (if you asserted it) retract your assertion. That’s responsible cognitive management, responsible assertion.  No evading the burden of proof if you assert, and if you can’t fulfill the requirements of the burden, stop asserting.

How epistemically demanding this norm must be is a matter of some debate.  Here are a few of the contenders:

C-Norm: S may assert that p only if S is certain that p.

K-Norm: S may assert that p only if S knows that p.

RBK-Norm: S may assert that p only if S reasonably (but possibly fallibly) believes that S knows that p.

J-Norm: S may assert that p only if S has epistemically justifying reasons for believing that p.

W-Norm: S may assert that p only if S has warrant for holding that p (but S does not have to believe it)

T-Norm: S may assert that p only if p is true.

The literature on norms of assertion are all over the place on which of these norms obtains, but with the exception of the T-norm, it’s not hard to see how these norms explain why Rules 2 and 9 above obtain.  (Those who hold the T-norm maintain that the obligation to defend is pragmatically derivable from the T-norm.)  In short, the point is to see that those who assert, by way of asserting, shoulder a burden to argue as a consequence.

Donald Trump’s tweet, assuming it’s an assertion, requires some backing.  And given the seriousness of the accusation, the urgency of his shouldering the burden of proof is pretty significant.

John McCain’s appearance on CNN’s State of the Union was an instance of someone invoking the rule.  His challenge is:

The President has one of two choices: either retract or to provide the information that the American people deserve . . . .  I have no reason to believe that the charge is true, but I also believe that the President of the United States could clear this up in a minute.  All he has to do is pick up the phone, call the director of the CIA, director of national intelligence and say, ‘OK, what happened?’

The problem is that the current President is used to asserting confidently to a roomful of his yes-men or to a group of supporters and never getting pushback.  He can say:  believe me, I’ve got information… and they do.  But now that he’s President, his assertions have wider audience and plenty of folks want the backing.

 

It’s all in the naming and how you say it

In clocks that are right twice a day news, Kevin Williamson at NRO has a nice observation about the way that the expression du jour ‘deep state’ has a breadth in contemporary  usage.  You have the positive valence now used by those who think that Washington civil servants are part of the resistance.  And you have the Sean Hannity-Rush Limbaugh version that takes the deep state to be a fifth column of bureaucrats hell-bent on undermining a legitimately elected President.

The great irony is that the term had a very different valence for liberals and libertarians only a few years ago.  Waaaaay back then, ‘deep state’ or ‘deep government’ was a term of abuse for the established role that government took in civic life.  Liberals thought that it was too cozy with the financial sector and with industry, and so few elections could turn back any of that.  Libertarians thought it had overreached with social programs, but it was too late to repeal them.

Once the term has such breadth, only context will provide you with any clarity as to what’s being meant by its usage.  Williamson makes analogy here to the term ‘neocon’ to help clarify — originally, it meant different kind of conservative, then it meant disaffected leftist-turned-conservative, and then it took on international-Jewish-conspiracy-world-war-hawk connotations.  To know what mud someone’s slinging with the word, you need a little more background.

But, now, the important part with the terms ‘neocon’ or ‘deep state’ is that they not only have an evaluative and expressive role, they also play explanatory roles in what we’re seeing.  And so with ‘neocon,’ the association of the neocons like Wolfowitz with the WTO was part of the sinister explanation for the Iraq War.  (And so, too many people went with the last interpretation of neocon.)  And  with the current ‘deep state’ conspiracy theories, Hannity and Limbaugh are using it to explain the Trump administration’s early political losses.

But Occam’s Razor is ready to trim the thicket with the latter.  When the own-goals are so clearly instances of incompetence, blaming a vast conspiracy of bureaucrats is really more evidence of incompetence than an alternative explanation. It’s like the suckiest kid on the team blaming the refs for every time he gets burned.  Or the kid who never does the reading or the homework and then complains that your lectures don’t make any sense… and that’s why he’s failing.

Williamson makes a nice closing observation that the naming here (and how its said) works as a bit of magical thinking:

There is an ancient superstition that to name something is to assert power over it. (The members of some ancient tribes kept their real names secret and had secondary names for public use.) But giving the figments of your imagination a name and an involved back-story doesn’t make them real. It just makes you nuts.
The crucial thing to keep in mind, however, is that in every one of these cases, we are identifying the work of institutions and individuals — they exist.  What is controversial here is whether they themselves are working with a deep and shadowy plan…  But, again, what can be explained by incompetence or laziness in politics will always win out.

Mill’s Maxim on Philosophy15

Talisse and I have been thinking about the famous maxim from John Stewart Mill’s On Liberty that

He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion.

We call it Mill’s Maxim.  It’s a central feature of our Why We Argue book, and we have a short popular essay on it published in Think a few years back.  Over at Philosophy 15, we have a 3-part discussion of the maxim, where Talisse argues that the maxim has two components.  First, it’s an epistemic thesis – that evidential assessment is comparative, and so to know the case for one’s view, it’s always how one view handles the relevant evidence compared to the competitors.  Second, it’s a semantic thesisthat understanding a view is to understand it contrastively, in terms of the views it must exclude.

In the spirit of the maxim, in the subsequent videos I then subject the view to a series of objections and contrasts in terms of how the view may be supererogatory instead of obligatory, how it may overplay the necessity of contrasts for comprehension, and whether the maxim puts us in danger of falling for really bad views.

Finally, there’s a question of whether the demands of following Mill’s Maxim places unnecessary or undue burdens on members of vulnerable groups.

Your argument is invalid

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