Stayin’ Alive

And the sun stood still, and the moon stayed,
until the people had avenged themselves upon their enemies.
—Joshua 10:13.


“A Sinatra with a cold,” wrote Gay Talese for Esquire in 1966, “can, in a small way, send vibrations through the entertainment industry and beyond as surely as a President of the United States, suddenly sick, can shake the national economy”; in 1994, Nobel laureate economist Paul Krugman mused that a “commitment to a particular … doctrine” can eventually set “the tone for policy-making on all issues, even those which may seem to have nothing to do with that doctrine.” Like a world leader—or a celebrity—the health of an idea can have unforeseen consequences; for example, it is entirely possible that the legal profession’s intellectual bias against mathematics has determined the nation’s racial policy. These days after all, as literary scholar Walter Benn Michaels observed recently, racial justice in the United States is held to what Michaels calls “the ideal of proportional inequality”—an ideal whose nobility, it so happens that Nobel Prize-winner Daniel Kahneman and his colleague Amos Tversky have demonstrated, is matched only by its mathematical futility. The law, in short, has what Oliver Roeder of FiveThirtyEight recently called an “allergy” to mathematics; what I will argue is that, as a consequence, minority policy in the United States has a cold.

“The concept that mathematics can be relevant to the study of law,” law professor Michael I. Meyerson observed in 2002’s Political Numeracy: Mathematical Perspectives on Our Chaotic Constitution, “seems foreign to many modern legal minds.” In fact, he continued, to many lawyers “the absence of mathematics is one of law’s greatest appeals.” The strength of that appeal was on display recently in the 2011 Wisconsin case discussed by Oliver Roeder, Gill v. Whitford—a case that, as Roeder says, “hinges on math” because it involves the invention of a mathematical standard to measure “when a gerrymandered [legislative] map infringes on voters’ rights.” In oral arguments in Gill, Roeder observed, Chief Justice John Roberts said, about the mathematical techniques that are the heart of the case, that it “may be simply my educational background, but I can only describe [them] as sociological gobbledygook”—a derisory slight that recalls 19th-century Supreme Court Justice Joseph Story’s sneer concerning what he called “men of speculative ingenuity, and recluse habits.” Such statements are hardly foreign in the annals of the Supreme Court: “Personal liberties,” Justice Potter Stewart wrote in a 1975 opinion, “are not rooted in the law of averages.” (Stewart’s sentence, perhaps incidentally, uses a phrase—“law of averages”—found nowhere in the actual study of mathematics). Throughout the history of American law, in short, there is strong evidence of bias against the study and application of mathematics to jurisprudence.

Yet without the ability to impose that bias on others, even conclusive demonstrations of the law’s skew would not matter—but of course lawyers, as Nick Robinson remarked just this past summer in the Buffalo Law Review, have “dominated the political leadership of the United States.” As Robinson went on to note, “more than half of all presidents, vice presidents, and members of Congress have come from a law background.” This lawyer-heavy structure has had an effect, Robinson says: for instance, he claims “that lawyer-members of Congress have helped foster the centrality of lawyers and courts in the United States.” Robinson’s research then, which aggregates many studies on the subject, demonstrates that the legal profession is in a position to have effects on the future of the country—and if lawyers can affect the future of the country in one fashion, it stands to reason that they may have affected it in others. Not only then may the law have an anti-mathematical bias, but it is clearly positioned to impose that bias on others.

That bias in turn is what I suspect has led the Americans to what Michaels calls the theory of “proportional representation” when it comes to justice for minority populations. This theory holds, according to Michaels, that a truly just society would be a “society in which white people were proportionately represented in the bottom quintile [of income] (and black people proportionately represented in the top quintile)”—or, as one commenter on Michaels’ work has put it, it’s the idea that “social justice is … served if the top classes at Ivy League colleges contain a percentage of women, black people, and Latinos proportionate to the population.” Within the legal profession, the theory appears to be growing: as Michaels has also observed, the theory of the plaintiffs in the “the recent suit alleging discrimination against women at Goldman Sachs” complained of the ‘“stark” underrepresentation’ [of women] in management” because women represented “‘just 29 percent of vice presidents, 17 percent of managing directors, and 14 percent of partners’”—percentages that, of course, vary greatly from the roughly 50% of the American population who are women. But while the idea of a world in which the population of every institution mirrors the population as a whole may appear plausible to lawyers, it’s absurd to any mathematician.

People without mathematical training, that is, have wildly inaccurate ideas about probability—precisely the point of the work of social scientists Daniel Kahneman and Amos Tversky. “When subjects are instructed to generate a random sequence of hypothetical tosses of a fair coin,” wrote the two psychologists in 1971 (citing an earlier study), “they produce sequences where the proportion of heads in any short segment stays far closer to .50 than the laws of chance would predict.” In other words, when people are asked to write down the possible results of tossing a coin many times, they invariably give answers that are (nearly) half heads and half tails despite the fact that—as Brian Everitt observed in his 1999 book Chance Rules: An Informal Guide to Probability, Risk, and Statistics—in reality “in, say, 20 tosses of a fair coin, the number of heads is unlikely to be exactly 10.” (Everitt goes on to note that “an exact fifty-fifty split of heads and tails has a probability of a little less than 1 in 5.”) Hence, a small sample of 20 tosses has less than a twenty percent chance of being ten heads and ten tails—a fact that may appear yet more significant when it is noted that the chance of getting exactly 500 heads when flipping a coin 1000 times is less than 3%. Approximating the ideal of proportionality, then, is something that mathematics tells us is not simple or easy to do even once, and yet, in the case of college admissions, advocates of proportional representation suggest that colleges, and other American institutions, ought to be required to do something like what baseball player Joe DiMaggio did in the summer of 1941.

In that year in which “the Blitzkrieg raged” (as the Rolling Stones would write later), the baseball player Joe DiMaggio achieved what Gould says is “the greatest and most unattainable dream of all humanity, the hope and chimera of all sages and shaman”: the New York Yankee outfielder hit safely in 56 games. Gould doesn’t mean, of course, that all human history has been devoted to hitting a fist-sized sphere, but rather that while many baseball fans are aware of DiMaggio’s feat, what few are aware of is that the mathematics of DiMaggio’s streak shows that it was “so many standard deviations above the expected distribution that it should not have occurred at all.” In other words, Gould cites Nobel laureate Ed Purcell’s research on the matter.

What that research shows is that, to make it a better-than-even money proposition “that a run of even fifty games will occur once in the history of baseball,” then “baseball’s rosters would have to include either four lifetime .400 batters or fifty-two lifetime .350 batters over careers of one thousand games.” There are, of course, only three men who ever hit more than .350 lifetime (Cobb, Hornsby, and, tragically, Joe Jackson), which is to say that DiMaggio’s streak is, Gould wrote, “the most extraordinary thing that ever happened in American sports.” That in turn is why Gould can say that Joe DiMaggio, even as the Panzers drove a thousand miles of Russian wheatfields, actually attained a state chased by saints for millennia: by holding back, from 15 May to 17 July, 1941, the inevitable march of time like some contemporary Joshua, DiMaggio “cheated death, at least for a while.” To paraphrase Paul Simon, Joe DiMaggio fought a duel that, in every way that can be looked at, he was bound to lose—which is to say, as Gould correctly does, that his victory was in postponing that loss all of us are bound to one day suffer.

Woo woo woo.

What appears to be a simple baseball story, then, actually has a lesson for us here today: it tells us that advocates of proportional representation are thereby suggesting that colleges ought to be more or less required not merely to reproduce Joe DiMaggio’s hitting streak from the summer of 1941, but to do it every single season—a quest that in a practical sense is impossible. The question then must be how such an idea could ever have taken root in the first place—a question that Paul Krugman’s earlier comment about how a commitment to bad thinking about one issue can lead to bad thinking about others may help to answer. Krugman suggested in that essay that one reason why people who ought to know better might tolerate “a largely meaningless concept” was “precisely because they believe[d] they [could] harness it in the service of good policies”—and quite clearly, proponents of the proportional ideal have good intentions, which may be just why it has held on so long despite its manifest absurdity. But good intentions are not enough to ensure the staying power of a bad idea.

“Long streaks always are, and must be,” Gould wrote about DiMaggio’s feat of survival, “a matter of extraordinary luck imposed upon great skill”—which perhaps could be translated, in this instance, by saying that if an idea survives for some considerable length of time it must be because it serves some interest or another. In this case, it seems entirely plausible to think that the notion of “proportional representation” in relation to minority populations survives not because it is just, but instead because it allows the law, in the words of literary scholar Stanley Fish, “to have a formal existence”—that is, “to be distinct, not something else.” Without such a distinction, as Fish notes, the law would be in danger of being “declared subordinate to some other—non-legal—structure of concern,” and if so then “that discourse would be in the business of specifying what the law is.” But the legal desire Fish dresses up in a dinner jacket, attorney David Post of The Volokh Conspiracy website suggests, may merely be the quest to continue to wear a backwards baseball cap.

Apropos of Oliver Roeder’s article about the Supreme Court’s allergy to mathematics, Post says in other words, not only is there “a rather substantial library of academic commentary on ‘innumeracy’ at the court,” but “it is unfortunately well within the norms of our legal culture … to treat mathematics and related disciplines as kinds of communicable diseases with which we want no part.” What’s driving the theory of proportional representation, then, may not be the quest for racial justice, or even the wish to maintain the law’s autonomy, but instead the desire of would-be lawyers to avoid mathematics classes. But if so, then by seeking social justice through the prism of the law—which rules out of court at the outset any consideration of mathematics as a possible tool for thinking about human problems, and hence forbids (or at least, as in Gill v. Whitford, obstructs) certain possible courses of action to remedy social issues—advocates for African-Americans and others may be unnecessarily limiting their available options, which may be far wider, and wilder, than anyone viewing the problems of race through the law’s current framework can now see.

Yet—as any consideration of streaks and runs must, eventually, conclude—just because that is how things are at the moment is no reason to suspect that things will remain that way forever: as Gould says, the “gambler must go bust” when playing an opponent, like history itself, with near-infinite resources. Hence, Paul Simon to the contrary, the impressive thing about the Yankee Clipper’s feat in that last summer before the United States plunged into global war is not that after “Ken Keltner made two great plays at third base and lost DiMaggio the prospect of a lifetime advertising contract with the Heinz ketchup company” Joe DiMaggio left and went away. Instead, it is that the great outfielder lasted as long as he did; just so, in Oliver Roeder’s article he mentions that Sanford Levinson, a professor of law at the University of Texas at Austin and one of the best-known American legal scholars, has diagnosed “the problem [as] a lack of rigorous empirical training at most elite law schools”—which is to say that “the long-term solution would be a change in curriculum.” The law’s streak of avoiding mathematics, in other words, may be like all streaks. In the words of the poet of the subway walls,

Koo-koo …



Best Intentions

L’enfer est plein de bonnes volontés ou désirs
—St. Bernard of Clairvaux. c. 1150 A.D.

And if anyone knows Chang-Rae Lee,” wrote Penn State English professor Michael Bérubé back in 2006, “let’s find out what he thinks about Native Speaker!” The reason Bérubé gives for doing that asking is, first, that Lee wrote the novel under discussion, Native Speaker—and second, that Bérubé “once read somewhere that meaning is identical with intention.” But this isn’t the beginning of an essay about Native Speaker. It’s actually the end of an attack on a fellow English professor: the University of Illinois at Chicago’s Walter Benn Michaels, who (along with with Steven Knapp, now president of George Washington University), wrote the 1982 essay “Against Theory”—an essay that  argued that “the meaning of a text is simply identical to the author’s intended meaning.” Bérubé’s closing scoff then is meant to demonstrate just how politically conservative Michaels’ work is— earlier in the same piece, Bérubé attempted to tie Michaels’ work to Arthur Schlesinger, Jr.’s The Disuniting of America, a book that, because it argued that “multiculturalism” weakened a shared understanding of the United States, has much the same status among some of the intelligentsia that Mein Kampf has among Jews. Yet—weirdly for a critic who often insists on the necessity of understanding historical context—it’s Bérubé’s essay that demonstrates a lack of contextual knowledge, while it’s Michaels’ view—weirdly for a critic who has echoed Henry Ford’s claim that “History is bunk”—that demonstrates a possession of it. In historical reality, that is, it’s Michaels’ pro-intention view that has been the politically progressive one, while it’s Bérubé’s scornful view that shares essentially everything with traditionally conservative thought.

Perhaps that ought to have been apparent right from the start. Despite the fact that, to many English professors, the anti-intentionalist view has helped to unleash enormous political and intellectual energies on behalf of forgotten populations, the reason it could do so was that it originated from a forgotten population that, to many of those same professors, deserves to be forgotten: white Southerners. Anti-intentionalism, after all, was a key tenet of the critical movement called the New Criticism—a movement that, as Paul Lauter described in a presidential address to the American Studies Association in 1994, arose “largely in the South” through the work of Southerners like John Crowe Ransom, Allen Tate, and Robert Penn Warren. Hence, although Bérubé, in his essay on Michaels, insinuates that intentionalism is politically retrograde (and perhaps even racist), it’s actually the contrary belief that can be more concretely tied to a conservative politics.

Ransom and the others, after all, initially became known through a 1930 book entitled I’ll Take My Stand: The South and the Agrarian Tradition, a book whose theme was a “central attack on the impact of industrial capitalism” in favor of a vision of a specifically Southern tradition of a society based around the farm, not the factory. In their vision, as Lauter says, “the city, the artificial, the mechanical, the contingent, cosmopolitan, Jewish, liberal, and new” were counterposed to the “natural, traditional, harmonious, balanced, [and the] patriachal”: a juxtaposition of sets of values that wouldn’t be out of place in a contemporary Republican political ad. But as Lauter observes, although these men were “failures in … ‘practical agitation’”—i.e., although I’ll Take My Stand was meant to provoke a political revolution, it didn’t—“they were amazingly successful in establishing the hegemony of their ideas in the practice of the literature classroom.” Among the ideas that they instituted in the study of literature was the doctrine of anti-intentionalism.

The idea of anti-intentionalism itself, of course, predates the New Criticism: writers like T.S. Eliot (who grew up in St. Louis) and the University of Cambridge don F.R. Leavis are often cited as antecedents. Yet it did not become institutionalized as (nearly) official doctrine of English departments  (which themselves hardly existed) until the 1946 publication of W.K. Wimsatt and Monroe Beardsley’s “The Intentional Fallacy” in The Sewanee Review. (The Review, incidentally, is a publication of Sewanee: The University of the South, which was, according to its Wikipedia page, originally founded in Tennessee in 1857 “to create a Southern university free of Northern influences”—i.e., abolitionism.) In “The Intentional Fallacy,” Wimsatt and Beardsley explicitly “argued that the design or intention of the author is neither available nor desirable as a standard for judging the success of a work of literary art”—a doctrine that, in the decades that followed, did not simply become a key tenet of the New Criticism, but also largely became accepted as the basis for work in English departments. In other words, when Bérubé attacks Michaels in the guise of acting on behalf of minorities, he also attacks him on behalf of the institution of English departments—and so just who the bully is here isn’t quite so easily made out as Bérubé makes it appear.

That’s especially true because anti-intentionalism wasn’t just born and raised among conservatives—it has also continued to be a doctrine in conservative service. Take, for instance, the teachings of conservative Supreme Court justice Antonin Scalia, who throughout his career championed a method of interpretation he called “textualism”—by which he meant (!) that, as he said in 1995, it “is the law that governs, not the intent of the lawgiver.” Scalia argued his point throughout his career: in 1989’s Green v. Bock Laundry Mach. Co., for instance, he wrote that the

meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by the Members of Congress, but rather on the basis of which meaning is … most in accord with context and ordinary usage … [and is] most compatible with the surrounding body of law.

Scalia thusly argued that interpretation ought to proceed from a consideration of language itself, apart from those who speak it—a position that would place him, perhaps paradoxically from Michael Bérubé’s position, among the most rarified heights of literary theorists: it was after all the formidable German philosopher Martin Heidegger—a twelve-year member of the Nazi Party and sometime-favorite of Bérubé’s—who wrote the phrase “Die Sprache spricht”: “Language [and, by implication, not speakers] speaks.” But, of course, that may not be news Michael Bérubé wishes to hear.

Like Odysseus’ crew, there’s a simple method by which Bérubé could avoid hearing the point: all of the above could be dismissed as an example of the “genetic fallacy.” First defined by Morris Cohen and Ernest Nagel in 1934’s An Introduction to Logic and Scientific Method, the “genetic fallacy” is “the supposition that an actual history of any science, art, or social institution can take the place of a logical analysis of its structure.” That is, the arguments above could be said to be like the argument that would dismiss anti-smoking advocates on the grounds that the Nazis were also anti-smoking: just because the Nazi were against smoking is no reason not to be against smoking also. In the same way, just because anti-intentionalism originated among conservative Southerners—and also, as we saw, committed Nazis—is no reason to dismiss the thought of anti-intentionalism. Or so Michael Bérubé might argue.

That would be so, however, only insofar as the doctrine of anti-intentionalism were independent from the conditions from which it arose: the reasons to be against smoking, after all, have nothing to do with anti-Semitism or the situation of interwar Germany. But in fact the doctrine of anti-intentionalism—or rather, to put things in the correct order, the doctrine of intentionalism—has everything to do with the politics of its creators. In historical reality, the doctrine enunciated by Michaels—that intention is central to interpretation—was in fact created precisely in order to resist the conservative political visions of Southerners. From that point of view, in fact, it’s possible to see the Civil War itself as essentially fought over this principle: from this height, “slavery” and “states’ rights” and the rest of the ideas sometimes advanced as reasons for the war become mere details.

It was, in fact, the very basis upon which Abraham Lincoln would fight the Civil War—though to see how requires a series of steps. They are not, however, especially difficult ones: in the first place, Lincoln plainly said what the war was about in his First Inaugural Address. “Unanimity is impossible,” as he said there, while “the rule of a minority, as a permanent arrangement, is wholly inadmissable.” Not everyone will agree all the time, in other words, yet the idea of a “wise minority” (Plato’s philosopher-king or the like) has been tried for centuries—and been found wanting; therefore, Lincoln continued, by “rejecting the majority principle, anarchy or despotism in some form is all that is left.” Lincoln thereby concluded that “a majority, held in restraint by constitutional checks and limitations”—that is, bounds to protect the minority—“is the only true sovereign of a free people.” Since the Southerners, by seceding, threatened this idea of government—the only guarantee of free government—therefore Lincoln was willing to fight them. But where did Lincoln obtain this idea?

The intellectual line of descent, as it happens, is crystal clear: as Wills writes, “Lincoln drew much of his defense of the Union from the speeches of [Daniel] Webster”: after all, the Gettysburg Address’ famous phrase, “government of the people, by the people, for the people” was an echo of Webster’s Second Reply to Hayne, which contained the phrase “made for the people, made by the people, and answerable to the people.” But if Lincoln got his notions of the Union (and thusly, his reasons for fighting the war) from Webster, then it should also be noted that Webster got his ideas from Supreme Court Justice Joseph Story: as Theodore Parker, the Boston abolitionist minister, once remarked, “Mr. Justice Story was the Jupiter Pluvius [Raingod] from whom Mr. Webster often sought to elicit peculiar thunder for his speeches and private rain for his own public tanks of law.” And Story, for his part, got his notions from another Supreme Court justice: James Wilson, who—as Linda Przybyszewski notes in passing in her book, The Republic According to John Marshall Harlan (a later Supreme Court justice)—was “a source for Joseph Story’s constitutional nationalism.” So in this fashion Lincoln’s arguments concerning the constitution—and thus, the reasons for fighting the war—ultimately derived from Wilson.


Not this James Wilson.

Yet, what was that theory—the one that passed by a virtual apostolic succession from Wilson to Story to Webster to Lincoln? It was derived, most specifically, from a question Wilson had publicly asked in 1768, in his Considerations on the Nature and Extent of the Legislative Authority of the British Parliament. “Is British freedom,” Wilson had there asked, “denominated from the soil, or from the people, of Britain?” Nineteen years later, at the Constitutional Convention of 1787, Wilson would echo the same theme: “Shall three-fourths be ruled by one-fourth? … For whom do we make a constitution? Is it for men, or is it for imaginary beings called states?” To Wilson, the answer was clear: constitutions are for people, not for tracts of land, and as Wills correctly points out, it was on that doctrine that Lincoln prosecuted the war.

James Wilson (1742-1798)
This James Wilson.

Still, although all of the above might appear unobjectionable, there is one key difficulty to be overcome. If, that is, Wilson’s theory—and Lincoln’s basis for war—depends on a theory of political power derived from people, and not inanimate objects like the “soil,” that requires a means of distinguishing between the two—which perhaps is why Wilson insisted, in his Lectures on Law in 1790 (the very first such legal works in the United States), that “[t]he first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.” Or—to put it another way—the intention of those who made it. It’s intention, in other words, that enables Wilson’s theory to work—as Knapp and Michaels well-understand in “Against Theory.”

The central example of “Against Theory,” after all, is precisely about how to distinguish people from objects. “Suppose that you’re walking along a beach and you come upon a curious sequence of squiggles in the sand,” Michaels and his co-author ask. These “squiggles,” it seems, appear to be the opening lines of Wordsworth’s “A Slumber”: “A slumber did my spirit seal.” That wonder, then, is reinforced by the fact that, in this example, the next wave leaves, “in its wake,” the next stanza of the poem. How to explain this event, Knapp and Michaels ask?

There are, they say, only two alternatives: either to ascribe “these marks to some agent capable of intentions,” or to “count them as nonintentional effects of mechanical processes,” like some (highly unlikely) process of erosion or wave action or the like. Which, in turn, leads up to the $64,000 question: if these “words” are the result of “mechanical processes” and not the actions of an actor, then “will they still seem to be words?”

The answer, of course, is that they will not: “They will merely seem to resemble words.” Thus, to deprive (what appear to be) the words “of an author is to convert them into accidental likenesses of language.” Intention and meaning are, in this way, identical to each other: no intention, no meaning—and vice versa. Similarly, I suggest, to Lincoln (and his intellectual antecedents), the state is identical to its people—and vice versa. Which, clearly, then suggests that those who deny intention are, in their own fashion—and no matter what they say—secessionists.

If so, then that would, conversely, make those who think—along with Knapp and Michaels—that it is intention that determines meaning, and—along with Lincoln and Wilson—that it is people that constitutes states, then it would follow that those who thought that way really could—unlike the sorts of “radicals” Bérubé is attempting to cover for—construct the United States differently, in a fashion closer to the vision of James Wilson as interpreted by Abraham Lincoln. There are, after all, a number of things about the government of the United States that still lend themselves to the contrary theory, that power derives from the inanimate object of the soil: the Senate, for one. The Electoral College, for another. But the “radical” theory espoused by Michael Bérubé and others of his ilk does not allow for any such practical changes in the American constitutional architecture. In fact, given its collaboration—a word carefully chosen—with conservatives like Antonin Scalia, it does rather the reverse.

Then again, perhaps that is the intention of Michael Bérubé. He is, after all, an apparently-personable man who nevertheless asked, in a 2012 essay in the Chronicle of Higher Education explaining why he resigned the Paterno Family Professorship in Literature at Pennsylvania State University, us to consider just how horrible the whole Jerry Sandusky scandal was—for Joe Paterno’s family. (Just “imagine their shock and grief” at finding out that the great college coach may have abetted a child rapist, he asked—never mind the shock and grief of those who discovered that their child had been raped.) He is, in other words, merely a part-time apologist for child rape—and so, I suppose, on his logic we ought to give a pass to his slavery-defending, Nazi-sympathizing, “intellectual” friends.

They have, they’re happy to tell us after all, only the best intentions.

Great! Again?

The utility of a subdivision of the legislative power into different branches … is, perhaps, at the present time admitted by most persons of sound reflection.But it has not always found general approbation; and is, even now, sometimes disputed by men of speculative ingenuity, and recluse habits.
—Joseph Story. Commentaries on the Constitution of the United States. 1833.


Nicolas de Caritat, Marquis of Condorcet (17 September 1743 – 28 March 1794)
Nicolas de Caritat, Marquis of Condorcet
(17 September 1743 – 28 March 1794)

We habitually underestimate the effect of randomness,” wrote Leonard Mlodinow of MIT in his 2008 book on the subject: The Drunkard’s Walk: How Randomness Rules Our Lives—so much so, in fact, that “even when careers and millions of dollars are at stake, chance events are often conspicuously misinterpreted as accomplishments or failures.” But while that may be true, it’s often very difficult to know just when chance has intervened; it’s a hard thing to ask people to focus on things that never happened—but could have. Yet while that is so, there remains some identifiable ways in which chance interjects itself into our lives. One of them, in fact, is how Americans pass their laws—an argument that has not only been ongoing for two centuries, but that America is losing.

When, in 1787, the United States wrote its constitution, Edmund Randolph introduced what has since been called “the Virginia Plan”—the third resolution of which asserted that “the national legislature ought to consist of two branches.” Those two branches are now called the Senate and the House of Representatives, which makes the American system of government a bicameral one: that is, one with two legislative houses. Yet, although many Americans tend to think of this structure as, apparently, created with the universe, in fact it is not one that has been widely copied.

“Worldwide,” wrote Betty Drexhage in a 2015 report to the government of the Netherlands, “only a minority of legislatures is bicameral.” More recently the Inter-Parliamentary Union, a kind of trade group for legislatures, noted that, of world governments, 77 are bicameral—while 116 have only one house. Furthermore, expressing that ratio without context over-represents bicameral legislatures: even in countries that have two legislative houses, few of them have houses that are equally powerful, as the American House and Senate are. The British House of Lords, for example—the model for the Senate—has not been on a par politically with the House of Commons, even theoretically, since 1911 at the latest, and arguably since 1832.

Yet, why should other countries have failed to adopt the bicameral structure? Alternately, why did some, including notable figures like Benjamin Franklin, oppose splitting the Congress in two? One answer is provided by an early opponent of bicameralism: the Marquis de Condorcet, who wrote in 1787’s Letters from a Freeman of New Haven to a Citizen of Virginia on the Futility of Dividing the Legislative Power Among Several Bodies that “‘increasing the number of legislative bodies could never increase the probability of obtaining true decisions.’” Probability is a curious word to use in this connection—but one natural for a mathematician, which is what the marquis was.

The astronomer Joseph-Jerôme de Lalande, after all, had “ranked … Condorcet as one of the ten leading mathematicians in Europe” at the age of twenty-one; his early skill attracted the attention of the great Jean d’Alembert, one of the most famous mathematicians of all time. By 1769, at the young age of 25, he was elected to the incredibly prestigious French Royal Academy of Sciences; later, he would work with Leonhard Euler, even more accomplished than the great d’Alembert. The field that the marquis plowed as a mathematician was the so-called “doctrine of chances”—what we today would call the study of probability.

Although in one sense then the marquis was only one among many opponents of bicameralism—his great contemporary, the Abbé Sieyes, was another—very few of them were as qualified, mathematically speaking, to consider the matter as the marquis was; if, as Justice Joseph Story of the United States would write later, the arguments against bicameralism “derived from the analogy between the movements of political bodies and the operations of physical nature,” then the marquis was one of the few who could knowledgeably argue from nature to politics, instead of the other way. And in this matter, the marquis had an ace.

Condorcet’s ace was the mathematical law first discovered by an Italian physician—and gambler—named Gerolamo Cardano. Sometime around 1550, Cardano had written a book called Liber de Ludo Alea; or, The Book on Games of Chance, and in that book Cardano took up the example of throwing two dice. Since the probability of throwing a single number on one die is one in six, the doctor reasoned, then the probability of throwing two of the same number is 1/6 multiplied by 1/6, which is 1/36. Since 1/36 is much, much less likely than 1/6, it follows that it is much less likely that a gambler will roll double sixes than it is that the same gambler will roll a single six.

According to J. Hoffman-Jørgensen of the University of Aarhus, what Cardano had discovered was the law that the “probability that two independent events occurs simultaneously equals the product of their probabilities.” In other words, the chance of two events happening is exponentially less than the chance of either one of those two events—which is why, for example, a perfecta bet in horse racing pays off so highly: it’s much more difficult to choose two horses than one. By the marquis’ time the mathematics was well-understood—indeed, it could not have been not known to virtually anyone with any knowledge of mathematics, much less one of the world’s authorities on the subject.

The application, of course, should be readily apparent: by requiring legislation to pass through two houses rather than one, bicameralism thereby—all by itself—exponentially lessens the chance of legislative passage. Anecdotally, this is something that has been, if imperfectly, well-known in the United States for some time: “Time and again a bill threatening to the South” prior to the Civil War, as Leonard Richards of the University of Massachusetts has pointed out, “made its way through the House only to be blocked in the Senate.” Or, as labor lawyer Thomas Geoghegan once remarked—and he is by no means young—his “old college teacher once said, ‘Just about every disaster in American history is the result of the Senate.’” And as political writer Daniel Lazare pointed out in Slate in 2014, even today the “US Senate is by now the most unrepresentative major legislature in the ‘democratic world’”—because there are two senators from every state, legislation desired by ninety percent of the population can be blocked. Hence, just as the Senate blocked anti-slavery legislation—and much else besides—from passage prior to the Civil War, so too does it continue to function in that role today.

Yet, although many Americans may know—the quotations could be multiplied—that there is something not quite right about the bicameral Congress, and some of them even mention it occasionally, it is very rare to notice any mention of the Marquis de Condorcet’s argument against bicameral legislatures in the name of the law of probability. Indeed, in the United States even the very notion of statistical knowledge is sometimes the subject of a kind of primitive superstition.

The baseball statistician Bill James, for example, once remarked that he gets “asked on talkshows a lot whether one can lie with statistics,” apparently because “a robust skepticism about statistics and their value had [so] permeated American life” that today (or at least, in the 1985 James wrote) “the intellectually lazy [have] adopted the position that so long as something was stated as a statistic it was probably false and they were entitled to ignore it and believe whatever they wanted to.” Whether there is a direct relationship between these two—the political import of the marquis’ argument so long ago, and the much later apprehension of statistics noted by James—is unclear, of course.

That may be about to change, however. James, for example, who was once essentially a kind of blogger before the Internet, has gradually climbed the best-seller lists; meanwhile, his advice and empirical method of thinking has gradually infected the baseball world—until last year the unthinkable happened, and the Chicago Cubs won the World Series while led by a man (Theo Epstein) who held up Bill James as his hero. At the same time, as I’ve documented in a previous blog post (“Size Matters”), Donald Trump essentially won the presidency because his left-wing opponents do not understand the mathematics involved in the Electoral College—or cannot, probably due to the fact of their prior commitment to “culture,” effectively communicate that knowledge to the public. In other words, chance may soon make the argument of the marquis—long conspicuously misinterpreted as a failure—into a sudden accomplishment.

Or perhaps rather—great again.


Just as ancient Greek and Roman propagandists insisted, the Carthaginians did kill their own infant children, burying them with sacrificed animals and ritual inscriptions in special cemeteries to give thanks for favours from the gods, according to a new study.
The Guardian, 21 January 2014.


Just after the last body fell, at three seconds after 9:40 on the morning of 14 December, the debate began: it was about, as it always is, whether Americans ought to follow sensible rules about guns—or whether they ought to be easier to obtain than, say, the right to pull fish out of the nearby Housatonic River. There’s been a lot of words written about the Sandy Hook killings since the day that Adam Lanza—the last body to fall—killed 20 children and six adults at the elementary school he once attended, but few of them have examined the culpability of some of the very last people one might expect with regard to the killings: the denizens of the nation’s universities. After all, it’s difficult to accuse people who themselves are largely in favor of gun control of aiding and abetting the National Rifle Association—Pew Research reported, in 2011, that more than half of people with more than a college degree favored gun control. And yet, over the past several generations a doctrine has gained ground that, I think, has not only allowed academics to absolve themselves of engaging in debate on the subject of gun control, but has actively harmed the possibility of accomplishing it.

Having said that, of course, it is important to acknowledge that virtually all academics—even those who consider themselves “conservative” politically—are in favor of gun control: when for example Texas passed a law legalizing carrying guns on college campus recently Daniel S. Hamermesh, a University of Texas emeritus professor of economics (not exactly a discipline known for its radicalism), resigned his position, citing a fear for his own and his students’ safety. That’s not likely accidental, because not only do many academics oppose guns in their capacities as citizens, but academics have a special concern when it comes to guns: as Firmin DeBrabander, a professor of philosophy at the Maryland Institute College of Art argued in the pages of Inside Higher Ed last year, against laws similar to Texas’, “guns stand opposed” to the “pedagogical goals of the classroom” because while in the classroom “individuals learn to talk to people of different backgrounds and perspectives,” guns “announce, and transmit, suspicion and hostility.” If anyone has a particular interest in controlling arms, in other words, it’s academics, being as their work is particularly designed to foster what DeBrabander calls “open and transformative exchange” that may air “ideas [that] are offensive.” So to think that academics may in fact be an obstacle towards achieving sensible policies regarding guns might appear ridiculous on the surface.

Yet there’s actually good reason to think that academic liberals bear some responsibility for the United States’ inability to regulate guns like every other industrialized—I nearly said, “civilized”—nation on earth. That’s because changing gun laws would require a specific demands for action, and as political science professor Adolph Reed, Jr. of the University of Pennsylvania put the point not long ago in Harper’s, these days the “left has no particular place it wants to go.” That is, to many on campus and off, making specific demands of the political sphere is itself a kind of concession—or in other words, as journalist Thomas Frank remarked a few years ago about the Occupy Wall Street movement, today’s academic left teaches that “demands [are] a fetish object of literal-minded media types who stupidly crave hierarchy and chains of command.” Demanding changes to gun laws is, after all, a specific demand, and to make specific demands is, from this sophisticated perspective, a kind of “sell out.”

Still, how did the idea of making specific demands become a derided form of politics? After all, the labor movement (the eight-hour day), the suffragette movement (women’s right to vote) or the civil rights movement (an end to Jim Crow) all made specific demands. How then has American politics arrived at the diffuse and essentially inarticulable argument of the Occupy movement—a movement within which, Elizabeth Jacobs claimed in a report for the Brookings Institute while the camp in Zuccotti Park still existed, “the lack of demands is a point of pride?” I’d suggest that one possible way the trick was turned was through a 1967 article written by one Robert Bellah, of Harvard: an article that described American politics, and its political system, as a “civil religion.” By describing American politics in religious rather than secular terms, Bellah opened the way towards what some have termed the “non-politics” of Occupy and other social movements—and incidentally, allow children like Adam Lanza’s victims to die.

In “Civil Religion in America,” Bellah—who received his bachelor’s from Harvard in 1950, and then taught at Harvard until moving to the University of California at Berkeley in 1967, where he continued until the end of his illustrious career—argued that “few have realized that there actually exists alongside of and rather clearly differentiated from the churches an elaborate and well-institutionalized civil religion in America.” This “national cult,” as Bellah terms it, has its own holidays: Thanksgiving Day, Bellah says, “serves to integrate the family into the civil religion,” while “Memorial Day has acted to integrate the local community into the national cult.” Bellah also remarks that the “public school system serves as a particularly important context for the cultic celebration of the civil rituals” (a remark that, incidentally, perhaps has played no little role in the attacks on public education over the past several decades). Bellah also argues that various speeches by American presidents like Abraham Lincoln and John F. Kennedy are also examples of this “civil religion” in action: Bellah spends particular time with Lincoln’s Gettysburg Address, which he notes that poet Robert Lowell observed is filled with Christian imagery, and constitutes “a symbolic and sacramental act.” In saying so, Bellah is merely following a longstanding tradition regarding both Lincoln and the Gettysburg Address—a tradition that, however, that does not have the political valence that Bellah, or his literal spiritual followers, might think it does.

“Some think, to this day,” wrote Garry Wills of Northwestern University in his magisterial Lincoln at Gettysburg: The Words that Remade America, “that Lincoln did not really have arguments for union, just a kind of mystical attachment to it.” It’s a tradition that Wills says “was the charge of Southerners” against Lincoln at the time: after the war, Wills notes, Alexander Stephens—the only vice president the Confederate States ever had—argued that the “Union, with him [Lincoln], in sentiment rose to the sublimity of a religious mysticism.” Still, it’s also true that others felt similarly: Wills points out that the poet Walt Whitman wrote that “the only thing like passion or infatuation” in Lincoln “was the passion for the Union of these states.” Nevertheless, it’s a dispute that might have fallen by the historical wayside if it weren’t for the work of literary critic Edmund Wilson, who called his essay on Lincoln (collected in a relatively famous book Patriotic Gore: Studies in the Literature of the American Civil War) “The Union as Religious Mysticism.” That book, published in 1962, seems to have at least influenced Lowell—the two were, if not friends, at least part of the same New York City literary scene—and through Lowell Bellah, seems plausible.

Even if there was no direct route from Wilson to Bellah, however, it seems indisputable that the notion—taken from Southerners—concerning the religious nature of Lincoln’s arguments for the American Union became widely transmitted through American culture. Richard Nixon’s speechwriter, William Safire—since a longtime columnist for the New York Times—was familiar with Wilson’s ideas: as Mark Neely observed in his The Fate of Liberty: Abraham Lincoln and the Civil Liberties, on two occasions in Safire’s novel Freedom, “characters comment on the curiously ‘mystical’ nature of Lincoln’s attachment to the Union.” In 1964, the theologian Reinhold Niebuhr published an essay entitled “The Religion of Abraham Lincoln,” while in 1963 William J. Wolfe of the Episcopal Theological School of Cambridge, Massachusetts claimed that “Lincoln is one of the greatest theologians in America,” in the sense “of seeing the hand of God intimately in the affairs of nations.” Sometime in the early 1960s and afterwards, in other words, the idea took root among some literary intellectuals that the United States was a religious society—not one based on an entirely secular philosophy.

At least when it comes to Lincoln, at any rate, there’s good reason to doubt this story: far from being a religious person, Lincoln has often been described as non-religious or even an atheist. His longtime friend Jesse Fell—so close to Lincoln that it was he who first suggested what became the famous Lincoln-Douglas debates—for instance once remarked that Lincoln “held opinions utterly at variance with what are usually taught in the church,” and Lincoln’s law partner William Herndon—who was an early fan of Charles Darwin’s—said that the president also was “a warm advocate of the new doctrine.” Being committed to the theory of evolution—if Lincoln was—doesn’t mean, of course, that the president was therefore anti-religious, but it does mean that the notion of Lincoln as religious mystic has some accounting to do: if he was, it apparently was in no very simple way.

Still, as mentioned the view of Lincoln as a kind of prophet did achieve at least some success within American letters—but, as Wills argues in Lincoln at Gettysburg, that success has in turn obscured what Lincoln really argued concerning the structure of American politics. As Wills remarks for instance, “Lincoln drew much of his defense of the Union from the speeches of [Daniel] Webster, and few if any have considered Webster a mystic.” Webster’s views, in turn, descend from a line of American thought that goes back to the Revolution itself—though its most significant moment was at the Constitutional Convention of 1787.

Most especially, to one James Wilson, a Scottish emigrant, delegate to the Constitutional Convention of 1787, and later one of the first justices of the Supreme Court of the United States. If Lincoln got his notions of the Union from Webster, then Webster got his from Supreme Court Justice Joseph Story: as Wills notes, Theodore Parker, the Boston abolitionist minister, once remarked that “Mr. Justice Story was the Jupiter Pluvius [Raingod] from whom Mr. Webster often sought to elicit peculiar thunder for his speeches and private rain for his own public tanks of law.” Story, for his part, got his notion from Wilson: as Linda Przybyscewski notes in passing in her book, The Republic According to John Marshall Harlan (a later justice), Wilson was “a source for Joseph Story’s constitutional nationalism.” And Wilson’s arguments concerning the constitution—which he had a strong hand in making—were hardly religious.

At the constitutional convention, one of the most difficult topics to confront the delegates was the issue of representation: one of the motivations for the convention itself, after all, was the fact that under the previous terms of government, the Articles of Confederation, each state, rather than each member of the Continental Congress, possessed a vote. Wilson had already, in 1768, attacked the problem of representation as being one of the foremost reasons for the Revolution itself—the American colonies were supposed, by British law, to be fully as much British subjects as a Londoner or Mancunian, but yet had no representation in Parliament: “Is British freedom,” Wilson therefore asked in his Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, “denominated from the soil, or from the people, of Britain?” That question was very much the predecessor of the question Wilson would ask at the convention: “For whom do we make a constitution? Is it for men, or is it for imaginary beings called states?” To Wilson, the answer was clear: constitutions are for people, not for tracts of land.

Wilson also made an argument that would later be echoed by Lincoln: he drew attention to the disparities of population between the several states. At the time of the convention, Pennsylvania—just as it is today—was a much more populous state than New Jersey was, a difference that made no difference under the Articles of Confederation, under which all states had the same number of votes: one. “Are not the citizens of Pennsylvania,” Wilson therefore asked the Convention, “equal to those of New Jersey? Does it require 150 of the former to balance 50 of the latter?” This argument would later be echoed by Lincoln, who, in order to illustrate the differences between free states and slave states, would—in October of 1854, at Peoria, in the speech that would mark his political comeback—note that

South Carolina has six representatives, and so has Maine; South Carolina has eight presidential electors, and so has Maine. This is precise equality so far; and, of course they are equal in Senators, each having two. Thus in the control of the government, the two States are equals precisely. But how are they in the number of their white people? Maine has 581,813—while South Carolina has 274,567. Maine has twice as many as South Carolina, and 32,679 over. Thus each white man in South Carolina is more than the double of any man in Maine.

The point of attack for both men, in other words, was precisely the same: the matter of representation in terms of what would later be called a “one man, one vote” standard. It’s an argument that hardly appears “mystical” in nature: since the matter turns, if anything, upon ratios of numbers to each other, it seems more aposit to describe the point of view adopted here as, if anything, “scientific”—if it weren’t for the fact that even the word “scientific” seems too dramatic a word for a matter that appears to be far more elemental.

Were Lincoln or Wilson alive today, then, it seems that the first point they might make about the gun control debate is that it is a matter about which the Congress is greatly at variance with public opinion: as Carl Bialik reported for FiveThirtyEight this past January, whenever Americans are polled “at least 70 percent of Americans [say] they favor background checks,” and furthermore that an October 2015 poll by CBS News and the New York Times “found that 92 percent of Americans—including 87 percent of Republicans—favor background checks for all gun buyers.” Yet, as virtually all Americans are aware, it has become essentially impossible to pass any sort of sensible legislation through Congress: a fact dramatized this spring by a “sit-down strike” in Congress by congressmen and congresswomen. What Lincoln and Wilson might further say about the point is that the trouble can’t be solved by such a “religious” approach: instead, what they presumably would recommend is that what needs to change is a system that inadequately represents the people. That isn’t the answer that’s on offer from academics and others on the American left, however. Which is to say that, soon enough, there will be another Adam Lanza to bewail—another of the sacrifices, one presumes, that the American left demands Americans must make to what one can only call their god.