Tag Archives: census

Antonin Scalia thought jurisprudence was more like math than it really is

I didn’t mean for Antonin Scalia to be a major character in my book.  I was just going to write about an interesting math snafu that shows up in one of his capital punishment opinions.  But then that led quite naturally into talking about “formalism,” which many mathematicians use (or think of themselves as using) as their everyday philosophy of math, just as Scalia used it (or thought of himself as using it) as his everyday philosophy of jurisprudence.

Legal reasoning is not much like math.  But Scalia sometimes acts like he thinks it is.  That’s what makes him an interesting figure to me.  He writes down arguments which he presents as derivations axioms — as if the words of the Constitution determined the resolution of the legal question, so long as you were willing to apply them methodically and impartially in the correct sequence.

But surely that’s wrong!  The words of the Constitution underdetermine a lot of really interesting questions.  Richard Posner:

Most of the cases the Supreme Court agrees to decide are tossups, in the sense that they cannot be decided by conventional legal reasoning, with its heavy reliance on constitutional and statutory language and previous decisions. If they could be decided by those essentially semantic methods, they would be resolved uncontroversially at the level of a state supreme court or federal court of appeals and never get reviewed by the Supreme Court.

I have written before about the Court’s decision that statistical sampling in the Census is in conflict with the relevant Constitutional clause:

Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.

Scalia’s opinion concentrates on the word “enumeration,” which he argues does not mean “determining the number of,” but rather should be understood in the more restrictive sense of “counting one by one.”  And he has some good contemporary sources for this reading!  You get a nice satisfying no-nonsense feeling, reading this opinion.  Then you start to think about what it actually says. Is Scalia declaring that constitution requires that the census count people one by one?  Can’t be — for the last fifty years the census has been conducted mostly by mail.   Does he think the census has to enumerate something, but it doesn’t have to be people?  Could it be anything?  Could it be “all property owners?”  Could it be “all non-atheists?”

Note, too, that when you fill out the census form, you write down the number of people in your household, then you fill out information for each person.  When the numbers are compiled, the computer, surely, adds up the numbers from each form to get an answer.   In other words:  a mathematical process other than enumeration-in-the-narrow-sense whose output is an approximation to the total number of people in the United States.  Kind of like statistical sampling.  Except not as good an approximation.

I don’t think we should consider that process unconstitutional.  It seems reasonable to consider it an enumeration, despite the inconsistency with some dictionary definitions.  Because dictionary definitions aren’t mathematical definitions.  A mathematical object is exactly what it is, and nothing else.  But when we read a word, we make a choice.

Scalia makes one choice: we could also opt for a more expansive but equally common-sensical definition of “enumerate” as “determine, to the extent possible, the number of,” which permits statistical sampling aimed at counting the “whole number” of Americans.  That “whole” is a word in the Constitution too, with as much binding force as “enumeration.”  It doesn’t appear in Scalia’s opinion.

Am I saying Scalia’s opinion in Dept. of Commerce vs. U.S. House of Representatives was wrong?  No; I’m saying merely that it’s not the kind of opinion it presents itself as being.  It is not determined by the text before it.  It relies, elsewhere, on an argument from pragmatism:  if statistical sampling is constitutionally permissible, then legislatures might authorize it, and the resulting partisan wrangling over methodology would create hard cases for future courts.  These are fair arguments, but they’re not textual arguments.  The argument admits that we make choices when deciding what words mean, and we should let our choices be guided by their likely consequences.

But no, I don’t think those arguments are obviously wrong.  It is pretty rare to find Scalia being obviously wrong.  Except in the following higher-level sense.  Scalia seldom concedes that the questions he faces are authentically difficult.  He — or at least the character of “Scalia” he plays in the opinions — lacks the humbleness appropriate to the task.  His habit is to present his conclusion as if it’s obviously right, the way a mathematical proof, once you understand it, is obviously right.  That is obviously wrong.

Update:  Commeter aaaatos makes a really important point, one I meant to address directly in the post.  He writes:  “what makes the legal system so useful to mankind is the fact that therein law is treated in a formalistic way as much as possible, i.e. as if it were mathematics.”  This points to another plausible account of Scalia:  that he didn’t actually believe law was very much like math, but felt it was best practice for judges to pretend to believe that.  That’s what I was getting at with the distinction between Scalia the person and “Scalia,” the persona he adopts as a writer of opinions.

Why pretend?  Partly because it enhances the authority of the process; partly because pretending to believe it helps us be “as formalist as possible,” mildly constraining the inevitably biased choices we make when we read words and try to obey them.



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Counting Canadians

Canada’s chief statistician resigned last month in protest of the government’s decision to replace the long-form census questionnaire, previously mandatory for 20 percent of the population, with a voluntary version.   I imagine the point is that a voluntary questionnaire can’t possibly be delivering anything like a random sample of the population, though the linked article doesn’t make the statistical issues very clear.  The new head census-taker says the voluntary survey will be “usable and useful” but not comparable to the previous census.   Do I have any Canadian readers who can explain to me why the government thought this was a good idea?

And for Americans:  did you know that the response rate for the Canadian census is 96%?  Whoa.

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The census will be wrong. We could fix it.

I have an op/ed in tomorrow’s Washington Post about statistical sampling and the census.  It boils down to the claim that by failing to use the best statistical techniques we have to enumerate the population accurately, we’re getting the answer wrong on purpose in order to avoid getting it wrong by accident, and possibly violating the Constitution as a result.  And that estimating an unmeasured quantity to be zero is a really bad estimate.

The book Who Counts?  The Politics of Census-Taking In Contemporary America, by Margo Anderson and Stephen Fienberg, was an invaluable resource for the piece — highly recommended.

One argument I cut for space involves Kyllo vs. US, in which the Supreme Court ruled, in an opinion written by Antonin Scalia, that the use of a thermal imaging device to detect heat coming off the exterior wall of a house, and thus to infer the presence of a drug operation inside, can constitute a “search” for Fourth Amendment purposes.  On the other hand, Scalia questions the constitutionality of statistical adjustment of the census, expressing doubt that such a procedure would still be an “actual enumeration” as required by the Constitution.  So, for Scalia:

  • “Search,” in 2010, includes a scenario in which something of interest inside the house is not seen or otherwise sensed by any person or people, but is inferred by means of a scientific instrument that didn’t exist in Constitutional times.
  • But “enumeration,” in 2010, does NOT include a scenario in which the population is not counted one by one by any person or people, but is inferred by means of a statistical instrument that didn’t exist in Constitutional times.

Is that a problem?

Update (4 May):  It turns out I’m not the first arithmetic geometer to weigh in on census adjustment.  Brian Conrad in the New York Times, August 1998 does in three sentences what took me 1000 words:

Human intelligence plus a little brute force is often far more efficient and accurate than brute force alone. This is why statistical sampling is the superior way to carry out an ”actual enumeration” of a large population. Just ask any Republican who relies on a poll or who takes a blood test rather than drain every drop from his body.

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