Play the game
Video games, value, and free speech
The Supreme Court will soon hear a case concerning the state of California’s right to regulate the sale of violent video games to minors. Writing for The Washington Post, game designer Daniel Greenberg thinks that the First Amendment should protect video games. His argument relies on the value of video games:
Gameplay is a dialogue between a player and a game. Reading a book or watching a film can also be considered a dialogue, but the ability of the audience to respond is far more limited. […]The exploration and self-discovery available through books and movies is magnified in video games by the power of interactivity. A new generation of games features real changes in the story based on the morality of a player’s decisions. Mature-rated games such as “BioShock,” “Fable 2″ and “Fallout 3″ go far beyond allowing players to engage in imaginary violent acts; they also give players meaningful consequences for the choices that they make.
Leaving aside the specific jurisprudence of the First Amendment, this raises a number of moral issues.
First, does speech have to be valuable in order for it to be protected? In order to answer this question, we should ask why we protect free speech at all. Read more
Fear and loathing redux
Radley Balko at Reason magazine argues that the close association between democratic politics and crime policy results in a vicious cycle of fear-mongering, excessive incarceration, and intergenerational poverty. He cites a Boston Globe article that reveals a tendency for undue and irrational pessimism and fear among the population. I explored the problem of irrational fear in a previous post, where I noted that there is often a gap between realistic and imagined levels of danger. In the case of crime, it is extreme. Although crime has been declining since the mid-1990s, 74% of Americans insist that crime is getting worse.
Balko’s solution to the vicious cycle is to divorce crime policy from the political process. Today, many judges and prosecutors in America are elected officials and as a result have been hijacked by public demands for tough sentencing. In most other countries, these jobs, which are technical in nature, are held by more-or-less impartial civil servants.
In any fair legal system, judges are supposed to be impartial, and so there is an argument for taking direct democracy out of the legal system. But we should be leery of technocracy more generally. There is a danger to having too many degrees of separation between the public and its agents. While public sentiments can certainly hijack policy for the worse, so can interests that have no accountability whatsoever to the public, with the results being systematic corruption and abuse.
In a complex society, we will always have to tread a fine line between technocracy and democracy.
-Charles
Image by Flickr user bitzcelt used under a Creative Commons Attribution License
Don’t worry (about the Constitution)
Over at The National Review, Jonah Goldberg criticizes the “creepy logic of many liberals today,” who believe legislators should not worry about the constitutionality of their laws during legislation, instead deferring such judgments to the courts. This is an interesting question, but let us not exaggerate its importance. Writes Goldberg:
Does anyone, anywhere, think legislators should vote for legislation they think is unconstitutional? Anyone? Anyone? How about presidents? Should they sign such legislation into law? Yet, according to this creepy logic, there’s no reason for congressmen to pass, obey, or even consider the supreme law of the land. Reimpose slavery? Sure! Let’s see if we can catch the Supreme Court asleep at the switch. Nationalize the TV stations? Establish a king? Kill every first-born child? Why not? It ain’t unconstitutional until the Supreme Court says so!
This is a horribly hyperbolic straw man against which Golberg is arguing. The Constitution is not the only reason legislators should vote against monarchy and racism – obvious moral or political reasons are sufficient. Deferring judgments of constitutionality to the courts would not open the floodgates to insane legislation.
That being said, the article is still a good read overall and examines some interesting questions worth thinking about.
-Han
Photo by Flickr user Photophiend used under a Creative Commons Attribution license.
Should the song remain the same?
Writing for Time, Adam Cohen criticizes Supreme Court Justice Atonin Scalia for his opinion that the Constitution does not bar sex discrimination. In the piece, Cohen criticizes “originalism,” a judicial philosophy subscribed to by Scalia, which interprets the Constitution strictly on its plain language, as intended by the writers. Arguing for more liberal judicial philosophies, Cohen writes:
And the fact that we have a very different country now from the days of the Founding Fathers is why Justice Scalia is on the wrong side of this debate. The drafters could have written the Constitution as a list of specific rules and said, “That’s all, folks!” Instead, they wrote a document full of broadly written guarantees: “due process,” “freedom of speech” and yes, “equal protection.” As Justice Oliver Wendell Holmes explained almost a century ago, the Constitution’s framers created an “organism” that was meant to grow — and to be interpreted “in the light of our whole national experience,” not based on “what was said a hundred years ago.”
The court of public opinion
The New York Times has a cool interactive feature where you can compare your views on certain issues with the Roberts court and the general public. However, comparisons can be slightly misleading since the questions are framed as policy questions not constitutional questions. While readers are asked whether they would support a ban on partial birth abortion, the justices are not supposed to be considering whether or not the law is smart policy but whether it is constitutional.
-Luke
Graham’s vote for Kagan
When should senators confirm judges whose judicial philosophy differs from their own?
On Tuesday the Senate Judiciary Committee approved Elena Kagan’s nomination to the Supreme Court. The vote split along party lines, with the exception of South Carolina Republican Lindsey Graham, who broke rank to support Kagan’s nomination.
Graham defended his choice by saying that while he disagreed with Kagan on many issues, he felt it was his duty to support President Obama’s nomination provided she was fair and competent. The conflict raises an interesting ethical and constitutional question, should, and if so when, may Senators vote against judicial nominees on ideological grounds? Read more
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. Read more
The (supreme) court of public opinion
The value and content of confirmation hearings
What’s the value of transparency in a democracy? Does it serve a function, or is it simply a right of the people to hear from elected and appointed officials, holding them to account through public opinion and in the ballot box?
These and other questions loom in the distant background when Elena Kagan’s confirmation hearing to join the Supreme Court kicks off this afternoon. While widely regarded as an empty formality that can do more to derail a confirmation (see: Robert Bork) than propel one, Supreme Court confirmation hearings are one of the few opportunities most Americans have to see and hear from the only unelected, lifetime-appointed branch of our federal government.
Many legal scholars and practitioners dislike confirmation hearings, treating them merely as superfluous opportunities for political bluster or the unending debate on abortion. But a fascinating new study – the first comprehensive analysis of what has been said at confirmation hearings – suggests otherwise: Read more
Kagan’s consequentialism
Professor David Rose says that asking Kagan her moral framework is a relevant question in considering her fitness for the bench (particularly, is she or isn’t she a consequentialist?):
This is a timely issue. If confirmed, Ms. Kagan may hear a constitutional challenge to the mandatory insurance requirement of the new health-care law.
A nonconsequentialist judge would examine whether the Constitution empowers the federal government to require citizens to purchase a private good (health insurance) and make a ruling on that basis alone.
But a consequentialist judge would look beyond the law and consider the insurance mandate’s impact on society. Using this criterion, the consequentialist judge might see the mandate as a “benefit to public health” and a “compelling state interest.” Such thinking would lead to a loose interpretation of the Commerce Clause and an affirmation of an unprecedented loss of personal liberty in America.
What’s odd to me is not the questions Rose raised, but the fact that he is a professor of economics. Are there no moral philosophers or legal philosophers interested in this question?
-Sam
The world court
When is it appropriate for American courts to reference foreign law?
The other day Jake posted on the Supreme Court ruling that teenagers cannot be sentenced to life in prison for non-homicide crimes. In his majority opinion, Justice Anthony Kennedy referenced the consensus in the international community against such punishments:
There is support for our conclusion in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over.
In other recent decisions outlawing the death penalty for juveniles and overturning laws prohibiting sodomy the court has also referenced international law. These cases raise an interesting question, what role, if any, should the opinions of foreign nations play in our constitutional interpretation? Read more
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