Unpacking the Supreme Court

We currently have to wait for a Supreme Court justice to die or retire before a new one can be appointed. The idea is to keep the size of the court relatively constant and to avoid FDR-style "packing" of the court to favor one side or the other of the ideological spectrum. Your Random Philosophizer has a different idea.

Yes, we shouldn't let the Supreme Court get too small. I would say that there should be at least one justice for every federal circuit, currently thirteen. If the number of justices should fall below that number, then the current president should appoint one. If the appelate court system ever gets modernized so that there is a more reasonable number of circuits, then the number of justices would rise. The reason for this is that since the "business" of the court comes primarily from the appeal courts, the court could assign one justice to handle preliminarily one circuit court's output. However, the minimum could be tied to some other factor, such as one justice for each 50 million US citizens, or one justice for every four states. It could even be set at the current number of justices (nine). I like using the number of US circuit courts because it is a number that will necessarily vary, but conservatively, and because there is a functional relationship between the circuits and the Supreme Court.

However, I think that regardless of the size of the court, each presidential term should see the appointment of one justice. That is, one of the duties of each president, during each term, would be to appoint a new justice to the Supreme Court. Two-term presidents would obviously get two turns at bat. In fact, this may be about average for presidential terms, or at least in the same ball park.

It's a simple idea really. Every term, the president will appoint a Supreme Court justice. If, due to death or retirement, the number of justices should fall below the number of federal circuit courts, the current president will appoint a replacement. If a death or retirement in the court should occur before the president has appointed a justice during the term, bringing the number below the minimum, then the standard appointment for that term would come first. That is, the appointment would replace the retiring justice and restore the minimum. However, if after making his or her appointment for the term, the number is still lower than the number of federal circuits, then the president will continue to make appointments until the minimum is restored.

Under this system, the court could grow at the rate of about one justice every four years if relatively young, healthy justices were appointed, and the composition of the court would tend to reflect the recent history of electoral trends. Since the court would be larger, the results of the court on decisions would have more "dynamic range", and, possibly, be more just and more reflective of the will of the People. While it is true that every president would, under this system, leave his or her mark on the court, since the size would be larger, the impact of any given president would be, on average, less than what we have seen recently where some presidents have made two appointments (2/9) of the court. Each president, under the new system, would have an impact of 1/N, sometimes 2/N, where N would currently be at last 13; this is generally smaller than is currently the case. Since the court would usually be larger than the minimum, it would be possible for justices to die or retire without triggering a political frenzy, since they would not need to be replaced. If there are more justices than circuits, assignments to different circuits could more accurately reflect differences in the activity level in each circuit.

There would be an interesting political dimension to this: since after each presidential election, a new justice would join the court, presidential candidates could speak openly about their philosophy regarding the court. It would become a new element of presidential elections, one that I think deserves to be given a higher profile.

Greg Shenaut

Voodoo neuroscience

OK, here's another in a long stream of published experiments that take a well-known psychological phenomenon X, scan people's brains somehow (in this case, fMRI), and say "Look: brain waves or cerebral blood flow or whatever has a pattern that correlates with X, so we now understand why X occurs!" However, no new understanding of why X occurs has resulted from the brain information. Instead, we simply know another fact about the phenomenon, and a rather insignificant one at that, because if you accept that brains underlie all psychological phenomena, then the important news would be a well-tested null result, that there was no brain correlation with a given psychological phenomenon. Let me expain.

The reported study follows up a phenomenon regarding the behavior of gamblers that is so well-established that the entire slot-machine industry builds and programs their machines to take advantage of it: near misses (two lemon and a strawberry) and machine that allow the gambler to control the process partially (e.g., to make one of the spinning columns stop at a certain point) motivate certain gamblers to keep playing almost as much as consistent wins. They measured fMRI bloodflow and found that, indeed, the brains of gamblers respond similarly to wins and near misses. However, nothing in their research explains why the brains of gamblers respond in this parallel fashion, or even if perhaps the similarity in the blood flow pattern is present because the gamblers perceive winning and near misses as similar, that is, reverse causality.

Yet, a purely behavioral study of the phenomenon, one that perhaps measured the effects of things like task complexity, intelligence, income level, and so on, would be much less likely to excite readers, and, even though the research would be much less expensive to run (fMRI machines are expensive!), it would probably be much less likely to be funded.

Why? My explanation is what I will call "voodoo neuroscience". The experiment I linked to above is a perfect illustration. You just take expensive technology and apply it to find some new correlation or enhanced precision of measurement, even though it adds nothing or very little to our understanding of the underlying phenomenon, and it is viewed as exciting, revolutionary, and important. A linguist I knew used the expression "physics envy" for such voodoo scientific endeavors.

I'm not saying that we should not do the cognitive fMRI experiments, but I am saying that in terms of costs and benefits, the magnitude of the benefits should not be inflated as they currently are, and as they were in the fMRI slot machine study.

Greg Shenaut

Another screwy tax proposal

Well, I don't know about you, but when it comes to taxes, I think I'm bothered as much by the complexity of our current system as I am by paying the actual taxes. The recent disgrace of Tom Daschle et al. hasn't made me change this idea. I mean, take the money but don't make it so difficult and stressful.

One perennial idea to simplify taxes is the consumption tax, basically a national sales tax. When you buy something, you pay taxes, and you don't pay any other taxes. This is definitely simpler, and no one has denied that it could be used to raise all necessary revenues. The problem is that in all forms of it I have heard of, it is horribly regressive, in that poorer people would end up paying a much greater portion of their income in taxes than wealthier people.

So, the screwy idea I came up with this morning is that by default, a national sales tax rate -- possibly with per-locality or per transaction-type adjustments -- is set to a universal amount. For the moment, let's say 15%, just to pick a number. 15% of all normal transactions would go to the tax collector. Yes, the rate could be modified to get some state taxes in there, and also there could be lower rates on things like carrots and bread and higher rates on things like television sets and cigarettes. But the nominal rate would be a standard 15%. However, people could apply for something called a "tax discount card", which would contain ID information and electronically coded information that could reduce the tax rate applied to a certain transaction. This would be the means to implement progressivity in the sales tax.

From the retailer's point of view, the tax discount card would simply be swiped just like a credit card, and the tax rate of the transaction would be adjusted accordingly. It would really be no extra work for them. All of the necessary information to document the tax would be supplied automatically.

What about privacy? Well, use of the tax discount card would be optional. If you didn't want to use your card (or if you don't qualify for any discounts), you can do an undocumented transaction and be taxed at the full nominal rate for the transaction type and locality. Basically, if you want to pay less taxes and if you have low income, lots of kids, or some other reason why your taxes should be reduced, you can apply for and use a card.

In terms of simplicity, the process of applying for and renewing the discount card could be complex, no question about it. But what this plan does is to separate out the complexity from the taxation itself. And, except for people whose circumstances change rapidly, once the first card is acquired, renewal cards would be less complex.

Families could get "family rate" cards instead of having each individual apply for their own.

One interesting twist is that tourists and other transients would pay the full rate, and people from out of state would not pay the local state supplementary tax.

Well, that's the idea.

A small suggestion for Israel

First, let me say that I have no idea about who is right or wrong in Palestine. It seems to me that all sides there are in an impass. This note isn't about the big picture, it's just a small suggestion for a possibly very useful policy for Israel to adopt if it intends to continue violent action against Palestinians.

Reparations. It's really very simple. Suppose the Israelis decide to take out someone who they believe supplies and trains suicide bombers. They know where he is, and they target that location as precisely as possible, and as a result, 3 civilians are killed, 10 are seriously wounded, and three houses are destroyed. It doesn't matter for the purposes of this essay whether their actual target was killed or not, those civilians and their property would never have been legitimate targets, and, I believe, would never be of interest to the Israelis as targets. Yet, they were blown up.

I think that Israel should pay the survivors. They should pay so much for a death, so much for an injury, and they should pay to treat the injuries. They should also pay to rebuild any structures they destroy. The amounts should not be unlimited, but they should be more than simply adequate, they should be "moderately generous". And, they should be accompanied by a formal, sincere apology for the harm caused. The IRCRC could act as an intermediary, if the victims were reluctant to accept payments directly from Israel. Furthermore, if the act was illegal in some way--negligent, malicious, or premeditated--then the Israelis should make sure that criminal prosecution against the perpetuators is pursued with no interference from the government.

Hamas understands the political benefit of victim payments perfectly well, which is why they are making them to families of Gazan casualties after the recent conflict.

I think that Israel can afford this generosity, and I think that it would do three things: (1) it would demonstrate the difference between an actual military target and collateral damage, in a very tangible way; (2) it would have an effect on Israelis as well: they would better understand that they should be more careful, and that they are responsible for civilian casualties and damages; and (3) the most obvious effect is that it would mitigate to some degree the suffering of innocent Palestinians caught in the crossfire.

By the way, it would also provide an example that other countries could well afford to follow, including the USA. As for the Palestinians echoing this for Israeli civilians, well, one can only hope.

Greg Shenaut

Hexadecimal apportionment

This is pure political fiction. It takes place in an imaginary universe where the United States of America is capable of agreeing on a new constitution that fundamentally restructures the nation, an act of which I do not believe we are capable in our actual universe.

The basic theme is to get rid of several aspects of the current system that have plagued us for over 200 years. I must note that by "plague" I do not want to imply that most people are aware of the problem as I will state it; this is simply a view of our government and its history in a fictional context.

The current system, being built up from most of the old North American British colonies in a time when there was a great deal of isolation and separation among the colonies, depends strongly on a state level of government. The states are tied to the map: each one is defined as a certain region, usually contiguous, of the national territory. Each state has invented its own version of the wheel in many areas, most importantly the structure of its own governments and laws. In addition, the federal government mirrors the isolation of states in several ways. First, members of the two legislative bodies are grouped by state, two senators for each state and a number of representatives that is very, very roughly proportional to the number of citizens residing in each state. The executive is also chosen by the states such that presidential electors are tied to the individual states, generally in a number corresponding to the total congressional representation of the state the elector represents.

This structure, which was not so bad in the early 19th Century, is very bad today in my opinion. It splinters the nation and puts unequal representation into the very structure of the government. If the national motto is E pluribus unum, (out of many, one), then the organization of the nation into states has prevented the lofty goal of that motto from being realized.

Probably the largest problem, though, is that the constitution has actually interfered with the most basic processes of a democracy by downplaying any direct connection between individual voters and elected officials. Over the years since 1790, convention, state laws, and constitutional amendments have addressed some of these disconnections, but the result is still a kind of hodgepodge and there are still annoying and counterproductive vestiges of the original, no-direct-election-required version.

I consider the following as just some examples of how the organization into states has harmed us: the lack of a national education system; the lack of a national approach to the environment; the lack of a national approach to labor relations; the lack of a national approach to immigration; the lack of a national approach to several contentious areas of civil rights. However, this article is not intended to focus so much on the results of our disunited states, but on a simple solution.

It seems obvious to me that there is no way to get away from the necessity of a hierarchy of government. Our territory is too large and too populous for there not to be subsystems and subsubsystems, and for the structure to reflect, to some degree, geographic proximity. However, I do not believe that the system should cause there to be actual allegiances to the subunits, or at least, not in any lasting, deep sense.

This solution has some similarity to one dating back to Roman times, and is very simple. The Roman system was decimal, based largely on the number 100. We simply take advantage of the hexadecimal system as a way to organize the system. Furthermore, since we will have a well-organized hierarchy, we will use it to increase the connection of the voters to their representatives at all levels.

The lowest level is that of the 4k (16³=4,096). Let's call it a "precinct". After each census, the nation is divided into precincts that are geographically contiguous and that contain 4096 citizens (foreign residents do not count, children and other citizens that can't vote do count). The precincts are the building blocks of the system. There should be some care taken to avoid huge shifts in precinct boundaries, but in fact, many of them would shift, disappear, or split after each census. We could call the executive for each precinct a "captain". Note that a variant of the rule of the census would be to include only citizens who are 8 and older (assuming an 18 year voting age), on the assumption that they would become voters before the next 10 year census and apportionment. You could also add a certain percentage of legal residents over 8 (say 10%), on the assumption that some would become US voters within 10 years. Each precinct should also have a precinct board with all members elected at large from within the precinct, but there is no need for there to be 16 members. Probably about four board members, plus the precinct captain, would be enough. The precinct boards would primarily be local administrators.

The next level is that of the 65k (16⁴=65,536), which we will call a "district". Again after each census, precincts would be combined into districts. There would be a district commission consisting of one commissioner elected from each of the 16 precincts, plus a district chief elected by the district as a whole. Note that districts would tend to be similar to "neighborhoods" in an urban setting, and "counties" in a rural one.

Next would come the 1m (16⁵=1,048,576). Let's call this these "boroughs". The borough council will consist of 16 councillors elected separately from the 16 districts of the borough, plus a mayor elected from the whole borough. Note that some current states would be smaller than the borough, while large cities would have more than one borough associated with them. For example, New York City would have several boroughs, while the old state of Alaska would be part of a borough also including part of the old state of Washington.

The next level is the 16m (16⁶=16,777,216). These levels could be called "provinces", and each province would have a provincial caucus made up of 16 representatives elected from the 16 constituent boroughs, plus a provincial chairman. In addition to that, there would be a national House of Representatives that would not have a maximum size, but which would consist of one representative elected from each borough in the nation, plus a Speaker of the House elected from the nation at large. The number of representatives would currently be a bit less than 300; Provinces would be larger than most current states.

The top level body is the national Senate, which would have no fixed maximum size (but would currently have about 18 or so members). This body would be made up of one senator elected from each province, plus a nationally elected President of the Senate.

Finally, there would be a chief executive, or President of the Republic, elected by the nation as a whole.

To summarize: voters would elect a precinct captain plus board members, a district commissioner, a district chief, a borough councillor, a borough mayor, a provincial representative, a provincial chairman, a national Representative, a Speaker of the House, a national Senator, a President of the Senate, and a President of the Republic. The leaders of the two legislative bodies and the President of the Republic would all be elected nationally. If the President of the Republic were to leave office or die, the President of the Senate would assume his duties; next in line would be the Speaker of the House. (There would be no Vice President.) As for terms, it would probably be best to use two-year terms for all levels below the House; Representatives and the President of the Republic could have four-year terms with half coming up for re-election in each two-year election cycle. Senators, the Speaker, and the President of the Senate could have eight-year terms.

Obviously, there could be some rounding errors. These would be handled at each level by adding one sub-unit to one or more selected higher level units. This would minimize the disparity in representation.

Also, the district boundaries would be assigned by algorithm. The algorithm would be a matter of law, and would be applied to the nation as a whole. The algorithm would be conservative in that it would weigh previous apportionments highly, and it would seek to reflect demographic and geographical factors.

As for laws, all laws would be national in scope. Laws would be debated in the House and the Senate, and could move in either direction (that is, they could originate in the House and then move to the Senate, or vice-versa).

Also, while it seems like science fiction, if it were necessary to form a system that encompassed more than 4,294,967,296 people (a level large enough to govern the entire world), then one more level would be added, pushing the House and Senate levels up, but keeping the bodies the same size as before. It should be remarked that if a system such as this one had been adopted by the Founders, this rescaling would have occurred twice already in history, to adapt to the rising US population (in the system of 1790-1800, the Senate would have been at the 65k level, the House at the 4k level).

I believe that a system such as this one, where every individual's vote counts the same as every other's, where the size of all governmental bodies are manageable, and where all laws apply to all US citizens; such a system would increase national unity and would decrease the perception that so many people have that government is separated from the people. In other words, I think it would increase the power of our democracy while simultaneously strengthening our republic.

This is just a skeleton of national organization, a mere framework. There would still have to be many changes made within the framework. Imagine how different (and better!) the constitution would have been, even in the 18th Century, if the country had been a single, unified hierarchy in which a single system of law and of government had been the goal. Given such a framework, I think we could do better even now.

And what about the states? I suggest that the old state boundaries be retained for historical and heritage purposes. There could be nongovernmental organizations of the old states and/or groups of states. I see no harm in that, it is part of our history. However, the state boundaries and old state governmental structures and laws would be phased out of the new system.

Well, that's the basic idea. I may come back and tighten this up a bit. To do: the idea of a parallel system of executives has great power. The change will be to (1) convert the chairman roles to executive ones, and (2) go back to each body choosing a single parliamentary leader. Also, consider parallel (3) judicial and (4) infrastructure systems.