Lex Majoris

The first principle of republicanism is that the lex majoris partis is the fundamental law of every society of individuals of equal rights; to consider the will of the society enounced by the majority of a single vote, as sacred as if unanimous, is the first of all lessons in importance, yet the last which is thoroughly learnt. This law once disregarded, there is no other but that of force, which ends necessarily in military despotism.
—Thomas Jefferson. Letter to Baron von Humboldt. 13 June 1817.

Since Hillary Clinton lost the 2016 American presidential election, many of her supporters have been quick to cry “racism” on the part of voters for her opponent, Donald Trump. According to Vox’s Jenée Desmond-Harris, for instance, Trump won the election “not despite but because he expressed unfiltered disdain toward racial and religious minorities in the country.” Aside from being the easier interpretation, because it allows Clinton voters to ignore the role their own economic choices may have played in the broad support Trump received throughout the country, such accusations are counterproductive even on their own terms because—only seemingly paradoxically—they reinforce many of the supports racism still receives in the United States: above all, because they weaken the intellectual argument for a national direct election for the presidency. By shouting “racism,” in other words, Hillary Clinton’s supporters may end up helping to continue racism’s institutional support.

That institutional support begins with the method by which Americans elect their president: the Electoral College—a method that, as many have noted, is not used in any other industrialized democracy. Although many scholars and others have advanced arguments for the existence of the college through the centuries, most of these “explanations” are, in fact, intellectually incoherent: while the most common of the traditional “explanations” concerns the differences between the “large states” and the “small,” for instance, in the actual United States—as James Madison, known as the “Father of the Constitution,” noted at the time—there had not then, and has not ever been since, a situation in American history that involved a conflict between larger-population and smaller-population states. Meanwhile, the other “explanations” for the Electoral College do not even rise to this level of incoherence.

In reality there is only one explanation for the existence of the college, and that explanation has been most forcefully and clearly made by law professor Paul Finkelman, now serving as a Senior Fellow at the University of Pennsylvania after spending much of his career at obscure law schools like the University of Tulsa College of Law, the Cleveland-Marshall College of Law, and the Albany Law School. As Finkelman has been arguing for decades (his first papers on the subject were written in the 1980s), the Electoral College was originally invented by the delegates to the Constitutional Convention of 1787 in order to protect slavery. That such was the purpose of the College can be known, most obviously, because the delegates to the convention said so.

When the means of electing a president were first debated, it’s important to remember that the convention had already decided, for the purposes of representation in the newly-created House of Representatives, to count black slaves by the means of the infamous three-fifths ratio. That ratio, in turn, had its effect when discussing the means of electing a president: delegates like James Madison argued, as Finkelman notes, that the existence of such a college—whose composition would be based on each state’s representation in the House of Representatives—would “guarantee that the nonvoting slaves could nevertheless influence the presidential election.” Or as Hugh Williamson, a delegate from North Carolina, observed during the convention, if American presidents were elected by direct national vote the South would be shut out of electing a national executive because “her slaves will have no suffrage”—that is, because in a direct vote all that would matter is the number of voters, the Southern states would lose the advantage the three-fifths ratio gave them in the House. Hence, the existence of the Electoral College is directly tied to the prior decision to grant Southern slave states an advantage in Congress, and so the Electoral College is another in a string of institutional decisions made by convention delegates to protect domestic slavery.

Yet, assuming that Finkelman’s case for the racism of the Electoral College is true, how can decrying the racism of the American voter somehow inflict harm on the case for abolishing the Electoral College? The answer goes back to the very justifications of, not only presidential elections, but elections in general—the gradual discovery, during the eighteenth century Enlightenment, of what is today known as the Law of Large Numbers.

Putting the law in capital letters, I admit, tends to mystify it, but anyone who buys insurance already understands the substance of the concept. As New Yorker writer Malcolm Gladwell once explained insurance, “the safest and most efficient way to provide insurance” is “to spread the costs and risks of benefits over the biggest and most diverse group possible.” In other words, the more people participating in an insurance plan, the greater the possibility that the plan’s members will be protected. The Law of Large Numbers explains why that is.

That reason is the same as the reason that, as Peter Bernstein remarks in Against the Gods: The Remarkable Story of Risk, if we toss a coin enough times that “will correspondingly increase the probability that the ratio of heads thrown to total throws” will decrease. Or, the reason that—as physicist Leonard Mlodinow has pointed out—in order really to tell which baseball team is better than another a World Series would have to be at least 23 games long (if one team were much better than the other), and possibly as long as 269 games (between two closely-matched opponents). Only by playing so many games can random chance be confidently excluded: as Carl Bialik of FiveThirtyEight once pointed out, usually “in sports, the longer the contest, the greater the chance that the favorite prevails.” Or, as Israeli psychologists Daniel Kahneman and Amos Tversky put the point in 1971, “the law of large numbers guarantees that very large samples will indeed be representative”: it’s what scientists rely upon to know that, if they have performed enough experiments or poured over enough data, they know enough to exclude idiosyncratic results. The Law of Large Numbers asserts, in short, that the more times we repeat something, the closer we will approach its true value.

It’s for just that reason that many have noted the connection between science and democratic government: “Science and democracy are powerful partners,” as the website for the Union of Concerned Scientists has put it. What makes these two objects such “powerful” partners is that the Law of Large Numbers is what underlies the act of holding elections: as James Surowiecki put the point in his book, The Wisdom of Crowds, the theory of democracy is that “the larger the group, the more reliable its judgment will be.” Just as scientists think that, by replicating an experiment, they can more readily trust in its results, so too does a democratic government implicitly think that, by including more people in the decision-making process, the government can the more readily arrive at the “correct” solution: as James Madison put it in The Federalist No. 10, if you “take in a greater variety of parties and interests,” then “you make it less probable that a majority of the whole will have a common motive for invading the rights of other citizens.” Without such a belief, after all, there would be no reason not to trust, say, a ruling caste to make decisions for society—or even a single, perhaps orange-toned, individual. Without some concept of the Law of Large Numbers—some belief that increasing the numbers of trials, or increasing the number of inputs, will make for better results—there is no reason for democratic government at all.

That’s why, when people criticize the Electoral College, they are implicitly invoking the Law of Large Numbers. The Electoral College divides the pool of American voters into fifty smaller pools, but a national popular vote would collect all Americans into a single lump—a point that some defenders of the College sometimes seek to make into a virtue, instead of the vice it is. In the wake of the 2000 election, for example, Senator Mitch McConnell wrote that the “Electoral College served to center the post-election battles in Florida,” preventing the “vote recounts and court battles in nearly every state of the Union” that, McConnell assures us, would have occurred in the college’s absence. But as Timothy Noah pointed out in The New Republic in 2012, what McConnell’s argument “fails to realize is that when you’re assembling one big count rather than a lot of little ones it’s a lot less clear what’s to be gained from rigging any of the little ones.” If what matters is the popular vote, what happens in any one location doesn’t matter so much; hence, stealing votes in downstate Illinois won’t allow you to steal the entire state—just as, with enough samples or experiments run, the fact that the lab assistant was drowsy at the time she recorded one set of results won’t matter so much. Or why deliberately losing a single game in July hardly matters so much as tanking a game of the World Series.

Put in such a way, it’s hard to see how anyone without a vested stake in the construction of the present system could defend the Electoral College—yet, as I suspect we are about to see, the very people now ascribing Donald Trump’s victory to the racism of the American voter will soon be doing just that. The reason will be precisely the same reason that such advocates want to blame racism, rather than the ongoing thievery of economic elites, for the rejection of Clinton: because racism is a “cultural” phenomenon, and most left-wing critics of the United States now obtain credentials in “cultural,” rather than scientific, disciplines.

If, in other words, Donald Trump’s victory was due to a complex series of renegotiations of the global contract between capital and labor, then that would require experts in economic and other, similar, disciplines to explain it; if his victory was due to racism, however—racism being considered a cultural phenomenon—then that will call forth experts in “cultural” fields. Because those with “liberal” or “leftist” political leanings now tend to gather in “cultural” fields, those with those political leanings will (indeed, must) now attempt to shift the battleground towards their areas of expertise. That shift, I would wager, will in turn lead those who argue for “cultural” explanations for the rise of Trump against arguments for the elimination of the Electoral College.

The reason is not difficult to understand: it isn’t too much to say, in fact, that one way to define the study of the humanities is to say it comprises the disciplines that largely ignore, or even oppose, the Law of Large Numbers both as a practical matter and as a philosophic one. As literary scholar Franco Moretti, now of Stanford, observed in his Atlas of the European Novel, 1800-1900, just as “silver fork novels”—a genre published in England between the 1820s and the 1840s—do not “show ‘London,’ but only a small, monochrome portion of it,” so too does the average student of literature not really study her ostensible subject matter. “I work on west European narrative between 1790 and 1930, and already feel like a charlatan outside of Britain and France,” Moretti confesses in an essay entitled “Distant Reading”—and even then, he only works “on its canonical fraction, which is not even 1 percent of published literature.” As Joshua Rothman put the point in a New Yorker profile of Moretti a few years ago, Moretti instead insists that “if you really want to understand literature, you can’t just read a few books or poems over and over,” but instead “you have to work with hundreds or even thousands of texts at a time”—that is, he insists on the significance of the Law of Large Numbers in his field, an insistence whose very novelty demonstrates how literary study is a field that has historically resisted precisely that recognition.

In order to proceed, in other words, disciplines like literary study or art history—or even history itself—must argue for the representativeness of a given body of work: usually termed, at least in literary study, “the Canon.” Such disciplines are already, simply by their very nature, committed to the idea that it is not necessary to read all of what Moretti says is the “thirty thousand nineteenth-century British novels out there” in order to arrive at conclusions about the nineteenth-century British novel: in the first place, “no one really knows” how many there really are (there could easily be twice as many), and in the second “no one has read them [all], [and] no one ever will.” In order to get off the ground, such disciplines must necessarily deny the Law of Large Numbers: as Moretti says, “you invest so much in individual texts only if you think that very few of them really matter”—a belief with an obvious political corollary. Rejection of the Law of Large Numbers is thusly, as Moretti also observes, “an unconscious and invisible premiss” for most who study such fields—which is to say that although students of the humanities often make claims for the political utility of their work, they sometimes forget that the enabling presuppositions of their fields are inherently those of the pre-Enlightenment ancien régime.

Perhaps that’s why—as Joe Pinsker observed in a fascinating, but short, article for The Atlantic several years ago—studies of college students find that those “from lower-income families tend toward ‘useful’ majors, such as computer science, math, and physics,” while students “whose parents make more money flock to history, English, and the performing arts”: the baseline assumptions of those disciplines are, no matter the particular predilections of a given instructor, essentially aristocratic, not democratic. To put it most baldly, the disciplines of the humanities must reject the premise of the Law of Large Numbers, which says that as more examples are added, the closer we approach to the truth—a point that can be directly witnessed when, for instance, English professor Michael Bérubé of Pennsylvania State University observes that the “humanists at [his] end of the [academic] hallway roundly dismissed” Harvard biologist E.O. Wilson’s book, Consilience: The Unity of Knowledge for arguing that “all human knowledge can and eventually will be unified under the rubric of the natural sciences.” Rejecting the Law of Large Numbers is foundational to the very operation of the humanities: without making that rejection, they cannot exist.

In recent decades, of course, presumably Franco Moretti has not been the only professor of the humanities to realize that their disciplines stood on a collision course with the Law of Large Numbers—it may perhaps explain why disciplines like literature and others have, for years, been actively recruiting among members of minority groups. The institutional motivations of such hiring, in other words, ought to be readily apparent: by making such hires, departments of the humanities could insulate themselves from charges from the political left—while at the same time continuing the practices that, without such cover, might have appeared increasingly anachronistic in a democratic age. Minority hiring, that is, may not be so politically “progressive” as its defenders sometimes argue: it may, in fact, have prevented the intellectual reforms within the humanities urged by people like Franco Moretti for a generation or more. Of course, by joining such departments, members of minority groups also may have, consciously or not, tied their own fortunes to a philosophic rejection of concepts like the Law of Large Numbers—as African-American sportswriter Michael Wilbon, of ESPN fame, wrote this past May, black people supposedly have some kind of allergy to statistical analysis: “in ‘BlackWorld,’” Wilbon solemnly intoned, “never is heard an advanced analytical word.” I suspect then that many who claim to be on the political left will soon come out to defend the Electoral College. If that happens, then in one last cruel historical irony the final defenders of American slavery may end up being precisely those slavery meant to oppress.

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An Unfair Game

The sheer quantity of brain power that hurled itself voluntarily and quixotically into the search for new baseball knowledge was either exhilarating or depressing, depending on how you felt about baseball.
Moneyball: The Art of Winning an Unfair Game

“Today, in sports,” wrote James Surowiecki in The New Yorker a couple of years ago, “what you are is what you make yourself into”—unlike forty or fifty years ago, nearly all elite-level athletes have a tremendous entourage of dietitians, strength coaches, skill coaches, and mental coaches to help them do their jobs. But not just athletes: at the team level, coaches and scouts have learned to use data both to recruit the best players and turn that talent into successful strategies. Surowiecki notes for instance that when sports columnist Mark Montieth went back and looked at old NBA games from the 1950s and 60s, he found that NBA coaches at the time “hadn’t yet come up with offenses sophisticated enough to create what are considered good shots today.” That improvement, however, is not limited to sports: Surowiecki also notes that in fields as varied as chess and classical music, airline safety to small-unit infantry tactics, the same basic sorts of techniques have greatly improved performance. What “underlies all these performance revolutions,” Surowiecki says, “is captured by the Japanese term kaizen, or continuous improvement”—that is, the careful analysis of technique. Still, what is more curious about the fact that so many disparate fields have been improved by kaizen-type innovations is not that they can be applied so variously, but that they have not been applied to many other fields: among them, Surowiecki lists medicine and education. Yet the field that might be ripest for the advent of kaizen—and with the greatest payoff for Americans, even greater than the fact that lemon cars are for the most part a thing of the past—is politics.

To be sure, politics doesn’t lend itself particularly well to training in a wind tunnel, as the top-level cyclists Surowiecki discusses do. Nor are politics likely to be improved especially by ensuring, like the Portland Trailblazers do, that everyone in government gets enough rest, or that they eat correctly—although one imagines that in the case of several politicians, the latter might greatly improve their performance. But while the “taking care of the talent” side of the equation might not, in the field of politics, be the most efficient use of resources, certainly the kinds of techniques that have helped teams improve their strategies just might. For example, in baseball, examining statistical evidence for signs of how better to defend against a particular batter has become wildly more popular in recent years—and baseball’s use of that strategy has certain obvious applications to American politics.

That team-level strategy is the “infield shift,” the technique whereby fielders are positioned on the field in unusual structures in order to take account of a particular batter’s tendencies. If, for example, a particular player tends to hit the ball to the left side of the field—a tendency readily observable in this age of advanced statistical analysis in the post-Moneyball era—teams might move the second baseman (on the right side of the infield) to behind second base, or even further left, just as to have an extra fielder where the batter tends to place his hits. According to the Los Angeles Times, the use of the “infield shift” has become far greater than it ever has: the “number of shifts,” the Times’ Zach Helfand wrote last year, “has nearly doubled nearly every year since 2011, from 2,357 to 13,298 last year.” This past season (2015), the use of shifts had exploded again, so that there were 10,262 uses of a shift “by the All-Star break,” Helfand reported. The use of shifts is growing at such an exponential rate, of course, because they work: the “strategy saved 190 runs in the first half this (2015) season, according to estimates from Baseball Info Solutions,” Helfand says. The idea makes intuitive sense: putting players where they are not needed is an inefficient use of a team’s resources.

The infield shift is a strategy, as it happens, that one of the greatest of America’s Supreme Court justices, Earl Warren, would have approved of—because he, in effect, directed the greatest infield shift of all time. About the line of cases now known as the “apportionment cases,” the former Chief Justice wrote that, despite having presided over such famous cases as Brown v. Board of Education (the case that desegregated American schools) or Miranda v. Arizona (which ensured that defendants would be represented by counsel), he was most proud of his role in these cases, which took on the fact that the “legislatures of more than forty states were so unbalanced as to give people in certain parts of them vastly greater voting representation than in others.” In the first of that line, Baker v. Carr, the facts were that whereas the population of the state of Tennessee had grown from 487,380 to 2,092,891 since 1900, and that said population had not been distributed evenly throughout the state but instead was concentrated in urban areas like Nashville and Memphis, still Tennessee had not reapportioned its legislature since 1901. This, said Warren, was ridiculous: in effect, Tennessee’s legislature was not only not shifted, but it was wrongly shifted. If the people of Tennessee were a right-handed pull-hitter (i.e., one that tends to hit to the left side of the field), in other words, Tennessee’s legislature had the second baseman, the shortstop, and the third baseman on the right side of the field—i.e., toward first base, not third.

“Legislators represent people, not trees or acres,” Warren wrote for a later “apportionment case,” Reynolds v. Sims (about Alabama’s legislature, which was, like Tennessee’s, also wildly malapportioned). What Warren was saying was that legislators ought to be where the constituents are—much as baseball fielders ought to be where the ball is likely to be hit. In Reynolds, the Alabama legislature wasn’t: because the Alabama Constitution provided that the state senate would be composed of one senator from each Alabama county, some senate districts had voting populations as much as 41 times that of the least populated. Warren’s work remedied that vast disparity: as a result of the U.S. Supreme Court’s decisions in Baker, Reynolds, and the other cases in the “apportionment” line, nearly every state legislature in the United States was forced to redraw boundaries and, in general, make sure the legislators were where the people are.

Of course, it might be noted that the apportionment cases were decided more than fifty years ago, and that the injustices they addressed have now all been corrected. Yet, it is not merely American state legislatures that were badly misaligned with the American population. After all, if the state senate of Alabama was badly malapportioned through much of the twentieth century and before, it is also true that the Senate of the United States continues to be malapportioned today: if the difference between Alabama’s least populated county and its most in the early 1960s was more than 40 times, the difference between the number of voters in Wyoming, the least populated American state, and California, the most, is now more than 60 times—and yet each state has precisely the same number of senators in the U.S. Senate. These differences, much like infield shifts, have consequences: in such books as Sizing Up the Senate: The Unequal Consequences of Equal Representation, political scientists like Frances E. Lee and Bruce I. Oppenheimer have demonstrated that, for example, “less populous states consistently receive more federal funding than states with more people.” Putting legislators where the people aren’t, in other words, has much the same effect as not shifting a baseball team’s infield: it allows money, and the other goods directed by a legislature, to flow—like hits—in directions that it wouldn’t were there fielders, or legislators, in place to redirect those flows.

To say that moving America’s legislature around would have an instantaneously positive effect on American life, of course, is likely to overstate the effect such a move might make: some batters in the major leagues, like Albert Pujols, have been able to overcome the effects of an infield shift. (Pujols, it seems, bats 28 points higher when a shift is on than when it isn’t, Zach Helfand reported.) Yet, teams still use the shift on Pujols—on the theory, apparently, that even though Pujols might overall bat better, still it is unlikely that he can keep it up, first, and second that on the occasions that he misses “hitting the gaps,” a fielder will be there.

Similarly, although it might be so that, as Senator Everett Dirksen of Illinois argued in the aftermath of 1964’s Reynolds, “the forces of our national life are not brought to bear on public questions solely in proportion to the weight of numbers,” the forces behind such examples as Billy Beane’s Oakland As teams—assembled largely on the weight of the statistics put up by the players—or Japanese car companies—which redesigned workspaces, Surowiecki says, “so workers didn’t have to waste time twisting and turning to reach their tools”—beg to differ: although not every question can be solved by the application of kaizen-like techniques, surely a number of them can.

Among them, it may be, is gun-control legislation, which has continually been held up by structural features of the American Congress that have much to do with malapportionment. Surely, in other words, with regard to gun policy it matters that the Senate is heavily stacked in favor of mostly-rural states. Were it not, it is much easier to imagine the United States having a gun policy much more in line with that of other industrialized democracies. Which, in the light of incidents like the recent shooting deaths in Orlando, is to shine a new light on an old baseball phrase.

That phrase?

“Hit ’em where they ain’t.”