SCOTUS and the Principle of Charity

I have talked quite a bit in several posts about the principle of charity. By this I mean that when reading someone's argument, you shold assume the most charitable interpretation of that argument possible. In many cases doing this will still yield a lousy argument, but it is a good idea nonethless.

I was reminded of this while skimming through the Supreme Court's decision (PDF) on the Affordable Care Act:

The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads “no vehicles in the park” might, or might not, ban bicycles in the park. And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so. Justice Story said that 180 years ago: “No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.” Parsons v. Bedford, 3 Pet. 433, 448–449 (1830). Justice Holmes made the same point a century later: “[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (concurring opinion).

Here, Chief Justice Roberts (the author of the majority opinion) notes a long precedence for the Court to employ a legal principle of charity in assessing the constitutionality of a law. Essentially he is arguing that if there is an interpretation of a law that is constitutional, the court must assume that interpretation.

This is more than a mere tangent in that the Court's decision to uphold the constitutionality of the individual mandate turns on this point. The Court actively ignores the text of the law (which specifically describes the consequences for not having insurance as "a penalty, not a tax"), and instead interprets the mandate as a tax on non-compliance rather than as a law requiring certain behavior. According to the Court, the government can't mandate the purchase of a certain product (in this case health insurance), but can tax individuals who don't. And this interpretation is a product of employing the principle of charity in interpreting the Affordable Care Act.

No, it's nothing like rape.

One of the most horrendous and insidious False Analogies is to compare something to rape. Rape is, perhaps, the most heinous of crimes as it involves a complete subjugation of the autonomy of one person to another. In this sense it is very similar to torture (and one could probably make a good case that rape is a form of torture).  Given how abhorrent rape is, many people nevertheless feel the need to describe any personal insult or idea they dislike as a form of rape. As just one recent example, Michael Reagan, eldest son of former president Ronald Reagan and syndicated radio show host, argues that President Obama's recent Department of Homeland Security directive preventing the deportation of DREAM-Act eligible individuals is comparable to the rape of young boys. As he writes:

Emperor Obama obviously could not care less about helping the Latino population. When Democrats had control of both houses of Congress he did absolutely nothing for them.
Now he’s doing to Latinos what Penn State coach Jerry Sandusky allegedly did to the children of Pennsylvania — using and abusing them. With his short-sighted politicking, Emperor Obama has hurt the Latino cause in the long run. [emphasis added]

Now whatever one thinks of Obama's actions or motives here comparing them to rape is clearly ludicrous. Obama did not sexually violate anyone under his supervision in a locker room shower, and to compare his action to that is, quite simply, wrong and shameful. (It is also somewhat disturbing how Reagan seeks to subtly minimize the severity of Sandusky's crimes. This is another object lesson in the use of euphemism)

Another common version of this particular false analogy is the claim made by a fan that some revamp or sequel to a beloved work from their youth "raped my childhood." This is a charge most commonly leveled against George Lucas and his Star Wars film series, and is nicely summarized in this NSFW clip from Brian Posehn's stand-up routine:

Now this is a rather funny bit, and there is a certain expectation that a comedian (unlike say a radio broadcaster) will be over the top and hyperbolic (see also this NSFW episode of South Park). However, unless George Lucas acquires a time machine and travels back in time to sexually assault you as a child, he didn't rape your childhood.

This general trend of comparing things one doesn't like to rape is extremely disturbing. In addition to being an obvious False Analogy it has a tendency to trivialize rape. The line of argument these false analogies suggest is as follows:

1. Seeing a lousy film isn't very pleasant, but it is no big deal. 
2. Seeing a lousy film is equivalent to rape. 
3. Therefore, rape must not be that big of a deal either.

And this of course is exactly wrong. I think people who use this False Analogy think that because rape is so awful, a comparison will show how awful the thing they dislike is. Unfortunately, they fail to realize that analogies go both ways. You may be trying to argue that A is similar to B in some respect, but you are just as likely to end up making the case that B is similar to A in some other respect. Thus, when one employs analogies, one must do so with great care and sensitivity to the terms of the comparison being made.

I can't tell you if I am violating your privacy. That would be a violation of your privacy.

A Circular Argument (often called Begging the Question) is a fallacy in which one states or assumes the conclusion in one of the premises. The name is fairly descriptive in that one is arguing in a circle in which the conclusion is true because it is supported by the premise, but the premise in turn depends on the conclusion in order for it to be true. As Bradley Dowden puts it, "Circular reasoning occurs when the reasoner begins with what he or she is trying to end up with."

I was reminded of this fallacy when I cam across this article by David Sirota. In it, he links to this report from Wired's Spencer Ackerman discussing the National Security Agency's (NSA) response to a request for information on Foreign Intelligence Surveillance Act (FISA) wiretaps from two US Senators on the Intelligence Oversight Committee. FISA was a law originally passed in 1978 which set up procedures for the surveillance of communications between "foreign powers" and their agents in the US. This law was then amended in 2008 in the wake of a NYT report on how the government had enlisted major telecom firms to (seemingly illegally) aid the government in its surveillance efforts. Under this amended form, in addition to retroactively immunizing telecoms for their illegal activities, the government further relaxed the standards for allowing surveillance of US citizens. Since the law is up for renewal later this year, the aforementioned Senators, Ron Wyden (D-Oregon) and Mark Udall (D-Colorado) sent a request (PDF) to the NSA asking for, among other things, a rough estimate of how many Americans had been spied on. It is the response (PDF) to this request, authored by I. Charles McCullough III, Inspector General of the Intelligence Community, that I want to focus on.

In this letter, McCullough argues that he can't satisfy Wyden and Udall's request because, "an IG review of the sort suggested would itself violate the privacy of U.S. persons." Ignoring for now the obvious non sequitur (Wyden and Udall were only looking for a number, not the names of those surveilled), we see a very nice example of circular reasoning. In effect, McCullough is arguing the following: We can't give you information about the impact of this law on the privacy of US Citizens because that would violate the privacy of US Citizens; we can't allow you to evaluate whether this law violates privacy because that would be a violation of privacy.

If I can editorialize for a moment (which I can because this is my blog), I am not sure Kafka or Heller could come up with a more absurd demonstration of bureaucratic obfuscation.

Some more thoughts on Euphemisms and Dysphemism

Just about any word can be said to have a denotation and a connotation. The denotation of a word is the object or objects to which the word refers. The connotation of the word is the emotional reaction a word elicits. In the case of euphemisms and dysphemisms one is is replacing a word with another word that has a similar denotation but a different connotation.

In my earlier post on this topic (and in the George Carlin bit included) this was presented as a bad thing; as a debasing and abusing of language. There are, however, many situations where the use of dysphemism and euphemism are appropriate. For example, when talking to someone who has just lost a loved one it seems perfectly appropriate to use a euphemism for 'death' such as 'passed away' or 'lost.' In fact, it would be rude and extremely insensitive to do otherwise. Language is a powerful and subtle tool (arguably the most powerful humans have ever created), and it can be used for much more than the simple transmission of information. It is also the primary vehicle through which we relate to and interact with one another. Just as it can be used to wound and hurt others, it can also be used to heal and uplift. As La Fontaine wrote in his Life of Aesop, language is the best and worst there is.

What I am trying to get at here is that as critical thinkers we should think deeply and sensitively about language, and we should use language to expose lies and deception where that is appropriate, but we should also use it to heal and mitigate pain where that is appropriate as well. The context here is extremely important, and as good critical thinkers we should be as sensitive to that as we are to the words themselves.

Either you're with or or against us

A False Dilemma (sometimes called a false dichotomy) is a fallacy in which one artificially restricts the options available to one's rhetorical opponents. That is, one suggests that there are only two options when in fact there are a wide spectrum of potential choices available. The following video clip provides a nice montage of former president George W. Bush employing one of his favorite rhetorical fallacies, the False Dilemma:

These clips come, of course, from the period after the September 11, 2001 terrorist attack and were a core component of Bush's anti-terrorism rhetoric. This strategy was first laid out in an address to a joint session of Congress on September 20, 2011 (Bush made a similar false dilemma in this address which can be found on page 5). That this is a false dilemma should be obvious. One can certainly be opposed to terrorism and yet disagree with the how the US responds to it. For Bush to suggest that there are only two possible options is as clear an example of the false dilemma as one is likely to find.

As in the clips above, it is very common to combine a False Dilemma with a straw man. In setting up a false dilemma one makes one of the horns of that dilemma a straw man, thus pushing people to adopt the alternative horn. This is what we see in the above example. Bush is suggesting that if you do not support the US 100% then you are a hater of freedom and a terrorist. This again provides more rhetorical force for Bush's preferred option which is uncritical support for the US and its anti-terrorism policies.

Just to pile on a bit more, it is also worth mentioning that the US commitment to global freedom is fairly questionable as this piece from Glenn Greenwald highlights.

The Ad Hominem

An Ad Hominem is a fallacy in which one tries to win an argument by attacking the character of one's opponent. There are many sub-varieties of Ad Hominem depending on the nature of the personal attack. In a recent back and forth between Rolling Stone's Matt Taibbi and Felix Salmon from Reuters concerning a proposal to privatize street parking in New York City, we can see a nice example of an Abusive Ad Hominem, which is a direct attack on the character of one's opponent.

In Taibbi's initial piece he objects to the idea of politicians leasing a public asset for decades into the future in order to secure a short-term revenue gain today. As Taibbi puts it,

These deals involve a sitting executive selling off a valuable piece of city property at a steep discount to private financial interests (often, to friends or campaign contributors), in order to solve a current cash flow problem that, surprise, surprise, will still be there the year after you finish spending the proceeds of your sale.

Salmon then responds by misrepresenting Taibbi's position as being a concern about rising parking rates (an example of both the straw man and red herring),

Which brings me to Matt Taibbi’s latest tirade, complaining about the idea that New York could raise as much as $11 billion by selling off its parking-meter rights. Anybody who wins this contract will have a contractual obligation to implement smart variable-pricing technologies, which will have to include apps showing where the spots are, the ability to pay by phone, and other ways of making everybody’s life easier. How is this not a good thing? Well, Taibbi’s upset that prices will rise:

Meter rates in some New York neighborhoods are already at $5 an hour. A Chicago-style price hike for fat-cat investors might leave us paying thirty bucks an hour to oil barons in Qatar and Saudi Arabia in order to park for dinner in the West Village.

Though I suggests that Salmon is committing a fallacy in this misrepresentation, it may also be the case that Salmon is simply guilty of not employing the principle of charity and giving the strongest possible interpretation of Taibbi's article. Alternatively, he may just not be reading carefully. In any case Salmon concludes his response by committing an abusive Ad Hominem,

But even if Matt were somehow deserving of such a subsidy, which he isn’t, it’s a false economy: it might feel good to be able park for cheap, but it feels much worse to be stuck in traffic all the time. And the overwhelming majority of West Village diners manage to find a way of eating there which doesn’t involve a parking spot. Why should they subsidize Matt’s parasitical suburban lifestyle?  [emphasis mine]

 Aside from the misrepresentation of Taibbi's position, the Ad Hominem should be clear. Why does it matter where Taibbi lives? If he has a good argument, the location of his home or the kind of life he chooses to live is completely irrelevant to the points he makes. For Salmon to raise this issue and go even further by calling Taibbi a parasite is a classic example of the Ad Hominem. It is also worth noting how Salmon switches from using Matt Taibbi's last name when he is discussing the argument to using his first name when he levels the Ad Hominem. The use of an opponent's first name is a subtle though effective attempt to infantilize one's opponent in an attempt to make their arguments look child-like and immature, further strengthening the general tone of the Ad Hominem attack.

As a final note, Taibbi responds to Salmon here.

Piling on the Santorum

I must admit, I do enjoy writing about former Pennsylvania Senator and presidential candidate Rick Santorum. He seems so obsessed with the sex lives of other people and he is a great source of logical fallacies and terrible arguments. Witness the following video:


(the link to the vid)

The fallacy I want to focus on in this video is False Analogy. Before getting to the fallacy, I should quickly say that an analogy is a comparison between two things, one well-understood, one less so. The point of an analogy is to aid in comprehension of the less well known thing by comparing it to something that is more familiar or understandable. In practice analogies can often be tricky because  there can often be as many similarities as dissimilarities between the terms of the comparison. Nevertheless, there are clear instances when a fallacy goes awry, and this is the False Analogy: an analogy in which the comparison isn't really apt or appropriate.

In the clip above Santorum makes the following analogy: calling a same sex-union marriage is equivalent to calling a napkin a paper towel in that a napkin has certain metaphysical or ontological properties that make the label 'paper towel' incorrect in the same way that marriage has certain metaphysical or ontological properties that make allowing same-sex couples or polygamous/polyandrous groupings incorrect (I think I reconstructed that accurately, Santorum is not the clearest speaker in the world, and he seems to be speaking extemporaneously in the video).

Putting aside Santorum's shaky grasp of metaphysics, it should be pretty clear why this is a bad analogy. In particular, the case of a physical object and a societal contract are very different. Despite Santorum's claim that marriage predates civilization, it should be obvious to any clear-thinking person that marriage (particularly the kind that is sanctioned by the state, which is what these debates are about) is ultimately a contract, and contracts don't exist without a society and some sort of legal or cultural framework for the enforcement of those contracts. In addition, societies set rules regarding what kinds of contracts are and aren't legitimate as well as who is allowed to enter into a contract. In the US, for example, one can't enforce a contract that sells one person into slavery. Even if one were to draw up a piece of paper with legal sounding language spelling out the terms of the arrangement and both parties signed and were notarized, this contract would be considered null and void because one isn't allowed to make that kind of contract in the US. Similarly, in many states one can't enforce a marriage contract between members of the same-sex. In either case, there is no ontological or metaphysical component to these contracts, they are merely conventions adopted by particular societies, and as with any social convention society can decide to change or modify it. Prior to the Supreme Court decision in Loving v. Virgina in 1967 it was illegal in many states for a black person to marry a white person of the opposite sex. In that decision the Supreme Court redefined the legal conventions around marriage making such unions legitimate. Again, marriage is nothing more than what states or societies define it to be. It is this important difference between social conventions and physical objects that renders Santorum's argument a False Analogy.