Notes on a Theory…

Thoughts on politics, law, & social science

Posts Tagged ‘Claims

The State of the Union is Ambivalent (2013)

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Last year Elias Isquith asked me to contribute a piece to a forum he did on the State of the Union speech. There was some dispute between the contributors over how they read the speech which was my jumping off point. I’m posting it again before this year’s speech because most of what I had to say is still applicable, even if some of the details have changed.

Obama 2010 SOTU

Pete Souza [Public domain], via Wikimedia Commons

The fact that people have such different readings of this speech isn’t that surprising. It reads to me like it was designed to do just that – let each of us hear what we want to hear.  Our normal way of understanding the SOTU is outward.  We tend to think of the president seeking to persuade the opposition or independents.  But there are two ways we might think of ‘us’ as the target.  First, speeches can be used to mobilize one’s own supporters to action. Second, they can be used to demobilize one’s own team. But ultimately, the impact depends on how we react.  We can use the good things that were mentioned as a resource, in making demands.  Or we can assume that the White House has the issue in hand and therefore we can stand down – at least until we get marching orders.  The latter is a losing proposition, regardless of your thoughts about the president’s own motives. I cringe at the barrage of emails about supporting the president’s agenda. We should have our own agenda, and pressure him to support us.

Of course, we all know that the president faces a hostile Republican majority in the House, and an obstructionist Republican minority in the Senate which, as a result of Harry Reid’s unwillingness to undo the filibuster, has a great deal of power.  Because of the sequester, there will likely be fiscal legislation, and because of Republicans’ fear over losing the Latino vote in perpetuity, immigration legislation will at least get a hearing.

So I thought I’d focus more on some other things, including those the White House has more control over.

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Written by David Kaib

January 27, 2014 at 11:13 am

What is Politics? Easton, Stone and Claim Making

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I don’t remember where it all started, but I’ve been unhappy with the concept of the decision as the central framework for political science for a long time. Very few political scientists, I should note, would say this is the case. They’d probably object to the idea that there is a central framework. Instead, they would likely focus on various different frameworks.  But, being heterodox and inclined to see the biggest picture possible, it was clear to me there was a deep similarity among these different approaches.  For one thing, there was so much political activity that was left out of this dominant framework, or dismissed or obscured.  Of course, we might conclude that something that political actors think is important is not after investigating it, but to do so as a matter of definitions makes little sense.

Since I began developing my idea of ‘politics as a contest of claim making’ as an alternative, I find that idea all over political science, although rarely foregrounded. It seems the sort of banal point that is widely understood but rarely the basis for much explicit theorizing. But it does come up again and again. My task seems to be to call attention to it and explicate its implications.

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Written by David Kaib

December 2, 2013 at 8:33 am

Scalia on Law, Words and their Application

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In an interview with Jennifer Senior, Antonin Scalia valiantly dispatched a straw man. A lot of people have noted this, but I wanted to quote it, and suggest that much of the criticism, while correct, misses the main problem.

Had you already arrived at originalism as a philosophy?

I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?

[snip]

What I do wish is that we were in agreement on the basic question of what we think we’re doing when we interpret the Constitution. I mean, that’s sort of rudimentary. It’s sort of an embarrassment, really, that we’re not. But some people think our job is to keep it up to date, give new meaning to whatever phrases it has. And others think it’s to give it the meaning the people ratified when they adopted it. Those are quite different views.

So first off, what Scalia is saying here is factually–incontrovertibly– incorrect. Words do change in their meaning.  Some have taken this as evidence that Scalia doesn’t know what he’s talking about. And I suppose that’s possible.  But it’s also possible that Scalia takes this position because it helps him advance his legal agenda. That is, it helps him justify the substantive positions he takes, the role for the Court he prefers, and so on. By making this about ignorance, we are missing the politics, which makes it difficult to push back effectively.  ‘Originalism is wrong’ is a fine thing to say, but what originalism is doing and how it is doing it are far more important thing to think about.

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Written by David Kaib

October 11, 2013 at 1:13 pm

The Patriot Act, ‘support’ for public policies and the construction of democratic control

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Not long ago, I argued that how poll questions are often framed, and more important, how they are interpreted in the media, worked to reinforce the status quo, specifically on the issue of mass surveillance.

I’ve since ran across an article (h/t Chris Bowers) that addresses this issue and sheds some important light on my point: Samuel J. Best and Monika L. McDermott, Measuring Opinions vs. Non-Opinions – The Case of the USA Patriot Act (pdf). They investigate whether pollsters are manufacturing opinions on subjects where they don’t exist, in response to the pressure to add public opinion to political debates. In essence, they argue that respondents do not know what the Patriot Act (a complex piece of legislation) does, but use clues from the wording of questions to make up for that ignorance.  So what appears to be actual opinions about the law (which for the record, shows very different levels of support depending on the question wording) is simply an artifact.

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Written by David Kaib

July 9, 2013 at 12:31 pm

The Fundamental Principle of Popular Sovereignty…Good for One Day Only

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At the end of the Supreme Court’s term last year, I noted that when it came to the Affordable Care Act case, every justice agreed with the principle that the Constitution creates a system of enumerated powers at the federal level. But, when it came to the Arizona’s punitive immigration law, those same nine justices all agreed the federal government was endowed with unenumerated powers, resulting from sovereignty, to regulate immigration.

As I said then, “both positions were consistent with past decisions”:

All this illustrates a point I’ve been trying to make–we have to distinguish between claims about what the Court does, from what it does, but both involve talk.  Both are consequential, but neither are automatic. The key is not to ignore what the Court says or to take it as truth, but rather to focus on in what contexts certain things are taken for granted (and here we’re not just talking about the Court but also the larger legal community) and how it differs from other contexts.

This term brings a similar example, although this time it involves a smaller number of justices.

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Written by David Kaib

June 28, 2013 at 1:22 pm

Gender, Class and Economic Fairness: Blaming Voters is a Cop Out

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Laura Bassett and Dave Jamieson have a piece on Democratic strategy, Minimum Wage, Sick Leave Rebranded As Women’s Issues To Pressure GOP that I find troubling (the strategy, not the piece).

Pelosi and Rep. Rosa DeLauro (D-Conn.) met with House freshmen two weeks ago to brief them on the new “women’s economic agenda,” which includes raising the minimum wage, guaranteeing workers the opportunity to earn paid sick leave, expanding affordable child care programs and passing the Paycheck Fairness Act.

Democrats have long supported such worker-friendly reforms. What’s changing this year are their political tactics. Rather than frame these issues in the traditional terms of economic fairness, they’ll be repackaging them as a matter of gender equality and family stability. As they push specific pieces of legislation, Democrats plan to roll out an aggressive communications effort to pressure Republicans who’ve declared the workplace measures job killers.

The strategy takes a cue from last November: If Democrats have managed to trounce Republicans with women voters, then why not turn labor issues into gender issues in pursuit of progressive reforms?

I’d love for Democrats to push harder on these issues.  And I’m definitely for connecting issue of economic fairness to gender equality is a good one. I want to see more of that.  The various issues that make up left politics are not a series of disconnected issue positions, as they are often framed, but are rather connected.  At the core of both of these things is the question of who counts as a full and equal person. The answer should be everyone. But if we don’t draw the connections across these different areas, we’re operating at a serious political disadvantage. Certainly the right appreciates these connections.  When we make the connections, people are more likely to see the issues that affect them personally as related to those that affect others. It helps them see these as a similar struggle. It helps produces solidarity.

But that isn’t what this story is about. Rather, it’s about replacing the economic framing with the gender framing (see my emphasis above). Read the rest of this entry »

Written by David Kaib

June 18, 2013 at 8:01 am

Joseph Tanenhaus on Judicial Decisions and Political Science

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Article

In my investigation of how scholars of judicial politics adopted the decision as the core concept of the thing to be explained, part of my argument has been that this wasn’t unique to the behavioralists, but was true of ‘traditionalists’ as well.  Joseph Tanenhaus, a participant in this conflict, agrees, in his Journal of Politics article “Supreme Court Attitudes Toward Federal Administrative Agencies” (1960). It’s easy to get distracted by the dispute between quantitative and qualitative approaches, but there is more here than that.

In the current controversy over the suitability of quantitative methods for the study of appellate-court behavior, there is a tendency to overlook a rather important similarity among the majority of contenders on both sides. Most contemporary analysts of appellate-court decisions, whether they be lower-court judges, practicing lawyers, journalists, professors of law, or political scientists, tend to comb discrete decisions in a search for uniformities and inconsistencies [my emphasis]. However much their motives may vary, analysts of both schools strive to generalize about phenomena which are, in some ways, unique. Utilizing the techniques it considers most apposite, each group collects and classifies data which it hopes to cast into formularies characterizing the behavior of a court and its individual members. Read the rest of this entry »

Written by David Kaib

May 11, 2013 at 4:12 pm

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