The challenge of social science in constitutional interpretation and public policy
Or: how I learned to stop worrying and love the gun
On Monday, the Supreme Court’s majority decision in McDonald v. Chicago affirmed, with some qualifications, that the individual right to bear arms may not be infringed by state or local governments. Was the Court’s decision appropriate? Does the right to bear arms deserve the same special consideration as other civil liberties, such as free speech, assembly, religion, and due process?
Two possible approaches to this constitutional question are the originalist and consequentialist ones. Originalists probe the texts of the Framers of the constitution and their contemporaries for textual evidence favoring or opposing giving such equal standing to the Second Amendment, while consequentialists are more representative of “living” constitutionalism and examine the empirical impact of gun policy on crime, domestic violence, and accidents.
Both approaches face problems. The originalist approach is problematic because the world is a vastly different place today than it was in 1787. Moreover, it is far from obvious what the Framers actually intended, or what their exact hierarchy of priorities and preferences was. The Constitution itself is in many ways ambiguously worded. On the other hand, the consequentialist approach suffers from the perennial bane of all social science –namely, that no research has the final word.
Suppose a city has an urban crime problem. Handguns were categorically outlawed decades ago in an attempt to curtail violent crime; yet violent crime has only increased since. Diametrically opposed but plausible conclusions are possible. One is that the handgun ban was necessary but insufficient because the problem was more severe than previously thought. Another is that the gun ban was entirely incorrect, and that perhaps a more productive approach would be to loosen gun controls in the name of self-defense such that criminals face higher risks and potential costs for their actions. A third conclusion may simply posit that gun control policy has nothing to do with urban violence; rather, violence is a function of deeply rooted social maladies such as chronic unemployment, low educational attainment, and criminality.
Unfortunately, in the absence of perfectly controlled experiments, social science can’t tell us with certainty which conclusion is correct. This limitation affects the debates around all sorts of policy questions, from the stimulus to health care reform. So how do we deal with the challenge of social science – that it does not provide clear true and false answers to questions of cause and effect? The classically conservative response calls for respecting traditions that historically have been proven to “work” and to change accepted practices only incrementally. The classically liberal approach is to experiment, whether by the initiative of the government or by the unfettered activity of private actors. A person’s sympathy toward either experimentation or tradition may or may not be wholly consistent across all issues, and may depend on whether one thinks the traditional approach or an experimental one is more likely to produce desirable outcomes. This is why intuitions, preferences, and values ultimately trump more strictly cerebral considerations. The Justices of the Supreme Court are surely no less immune to t
-Charles
Photo by Flickr user Alancleaver_2000 used under a Creative Commons Attribution license.
Related posts:
- Private values, public policy
- Is political science relevant?
- Kagan’s consequentialism
- Sam Harris – Can science address morality?
- Are guns covered in the public option?
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