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4/9/2007Copyright, 2007, Sean Wilson1 A Fresh Approach to the Politics of Law: How Constitutional Words Form a Cognitive Structure that Influences the.

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2 4/9/2007Copyright, 2007, Sean Wilson1 A Fresh Approach to the Politics of Law: How Constitutional Words Form a Cognitive Structure that Influences the Judicial Mind; an Examination of Key Areas of Civil Liberties Voting. Dr. Sean Wilson, Esq. Outlines a new theory of language Applies the theory to the Supreme Court Automated slide presentation, with audio. Presentation lasts 30 minutes Voice has been dictated Manually advancing slides Skip Slide

3 4/9/2007Copyright, 2007, Sean Wilson2 Table of Contents: Title …….……………. Theory of reference ……….... Contents ………………. Erotica voting ……………..…. Outline ……………..… Core speech ………..……….. PART I ……………….. Part III …………………………. interpreting “unreasonable” ………. Rigidity model ………………. search and seizure data ……………………… Conclusion ….………………… Terry/Warrant data …. All civil liberties ….… Part II ………..………. 1 2 3 4 5 8 10 12 13 14 19 20 26 27 29 Start Click Start to begin the Lecture ……………………. Obtain This Paper Obtain Paper Tables

4 4/9/2007 Copyright, 2007, Sean Wilson3 Language still works! (An admittedly tough test.) Do legal sentences affect voting? (a) Language theory “words form a cognitive reference structure in the mind” (b) Jurisprudential theory “inductive positivism?” The text is the starting point for inference Part I: Vague Adjectives Part II: Noun Reference Part III: Individual Justices theorizing -- “ gradiency” data -- search & seizure theorizing -- “Rigidity” data -- speech cases Who might be the “textualists?” What might this say about “law and politics? Basic Concern In constitutional cases? Presentation Outline: Part I Part II Part III

5 4/9/2007 Copyright, 2007, Sean Wilson4 Gradient Rights: A right that is dependent upon a vague adjective for its interpretation: Provide just compensation for takings. Provide speedy criminal trials. Do not impose cruel punishment. Use indictments for infamous crimes No unreasonable searches or seizures Provide due (meaning fair) process when taking life/liberty/property. PART I: Vague Adjectives Non-Gradient Rights: Provide defendants with counsel. Provide defendants with witness confrontation. Provide defendants with trials where the crime occurred. Do not impose “double-jeopardy” for the same offense. Provide defendants with subpoena power Don’t truncate speech How do you determine rule conformity?Gradiency is imposed upon the noun Compare: Provide defendants with good counselPoint: conformity is easier to demonstrate! Compare: Do not bail at a rate greater than 3 times the maximum allowable fine Compare: do not truncate fair speech do not truncate good speech do not truncate non-excessive speech do not truncate due speech Part I Part III Part II

6 4/9/2007 Copyright, 2007, Sean Wilson5 “Unreasonable” UN Able “basic idea” Able UN Particularly troubling gradiency Basic Premise: The order of the morphemes confuses the brain. Verb-Possible Adjective-opposite Part I Part II

7 4/9/2007 Copyright, 2007, Sean Wilson6 UNReasonAble + If a counter-rationalization exists, the matter is unreasonable! Possible to unreason Better alternative! Particularly troubling gradiency Application (hypothetical): Police officer investigating a murder, sees gun ammunition and a firearm on the floor board of a car in the vicinity where the culprit is expected to be. Inference P: gun ammo neighborhood floorboard clothing Murder! Inference Q: gun clothing floorboard neighborhood ammo Hunting Part I Part II Part III

8 4/9/2007 Copyright, 2007, Sean Wilson7 AbleUNReason+ Not possible to reason at all If no rationalization whatsoever can be found, it is unreasonable Arbitrary! Particularly troubling gradiency Rules for English Symbolism: (un +reason) + ableExtremely weak gradient un + (reason + able)stronger gradient 1. wide open command! 2. values are asked to govern 3. consequentialism (utilitarianism) 4. picture of the “crime problem” in the head Part I Part II Part III

9 4/9/2007Copyright, 2007, Sean Wilson8 Data Analysis Search and Seizure Cases; 1946-2004; The Ulmer Project Percentage that the right is granted Top segment is in the 90s Bottom is in single digits

10 4/9/2007Copyright, 2007, Sean Wilson9 Data Analysis Classplot of the data: Segal/Cover Scores = Independent Variable Tau-p: 0.42; R 2 L : 0.14 Phi-p: 0.42 Logit Regression: Dependent Variable: Is the search upheld? Yes/No Independent Variable: Sega/Cover Scores

11 4/9/2007Copyright, 2007, Sean Wilson10 Only Terry and Warrant Data! doug1780.88 mar341440.93 brn342450.93 war1450.80 stev1522370.59 fort1230.67 stwt3210420.24 har1670.86 blc7070.00 sout1120.50 bw3017470.36 blkm713200.65 pow2011310.35 ken5160.17 ocon234270.15 burg267330.21 scal6280.25 rehn382400.05 Top segment is in the 90s Bottom is in single digits Data Analysis Introduction: 1. The “Gold Standard:” Probable cause AND a warrant 2. Terry: police don’t need probable cause in some situations. 3. Warrant cases: police don’t need warrants in some (many, most) cases

12 4/9/2007Copyright, 2007, Sean Wilson11 Classplot of the data: Segal/Cover Scores = Independent Variable Tau-p: 0.51; R 2 L : 0.22 Phi-p: 0.52 Stevens Data Analysis

13 4/9/2007Copyright, 2007, Sean Wilson12 All Civil Liberties Cases, 1946-2004; Segal/Cover Scores = Independent Variable Tau-p: 0.24; R 2 L :0.067 Phi-p: 0.24 Data Analysis Further Reading: SSRN Paper.SSRN Paper Same thing, minus outliers Tau-p: 0.11; R 2 L : 0.009 Phi-p: 0.10

14 4/9/2007 Copyright, 2007, Sean Wilson13 Part II: Referents Basic Idea so far: Gradiency: weaker cognitive structure higher levels of disagreement No gradiency: stronger cognitive structure There is only one problem to solve: What does the noun refer to? Philosophic problem: -- Kripke v. Wittgenstein -- Bridge the disagreement -- My own novel theory of language reference -- Borrow from Steven Pinker “Words and Rules” Part I Part II Part III

15 4/9/2007Copyright, 2007, Sean Wilson14 Module I Module II Two Language Modules Take a Picture Combinatorial Tasks Something is what it looks like (favors “Empiricism?”) Something is what it does (favors “Rationalism” (the relation of ideas [Kantian])? FORM FUNCTION Illustration (“format”) Associative Memory

16 4/9/2007Copyright, 2007, Sean Wilson15 FORM FUNCTION Archetype Diffusion Extension Illustration “War:” 1. picture 2. social learning army flags country etc. 3. destroy the enemy regime Was the 9/11 bombing an act of “war?” “The war on poverty”

17 4/9/2007Copyright, 2007, Sean Wilson16 FORM FUNCTION Archetype Diffusion Extension Let’s play some language games! “war” “conventional war” “terrorism?” 9/11 an act of war? Is Iraq having a civil war right now? “The war on poverty” O’Reiley“cold war” Illustration Motivated reasoning Games with words FormFunction Pope a “bachelor?” Jurisdiction? Eligibility Unmarried male Land control, dominion Dolphin? mammal “Fishey” Abstract idea Important point! 1. Not proscribing what the referent must be! 2. Only gathering uses in order to rank clarity 3. some referents have lower levels of confusion or disagreement among those who use the same words 4. some have higher levels

18 4/9/2007Copyright, 2007, Sean Wilson17 Illustration FORM FUNCTION Archetype Diffusion Extension Speech Nazis marching in Skokie Printing stories that portray women enjoying rape Racist speech Malcolm X Anti-war/ social protest Flag burning? Criminals writing best-selling books Mouthing off to police officers Aborted-fetus pictures? campaign contributions: Commercial Advertising – 1. beer ads 2. condom ads 3. gambling ads Erotica? Nudity as “speech?” Compare: ‘the violin speaks to my soul” “Congress shall pass no law abridging the freedom of speech” verbalization Form “Sententializing” Forming sentences in another’s brain Non alphabetic characters count – middle finger “black power” peace sign Function Advocating, teaching, informing For its own sake Good Faith Purpose is to exchange the idea That is what “speech” does (Gibberish or automation would be problematic in this respect) De Jure De Facto

19 4/9/2007Copyright, 2007, Sean Wilson18 The Significance of the theory of reference # 1 # 2 # 3 Illustration

20 4/9/2007Copyright, 2007, Sean Wilson19 Classplot: erotica voting Tau-p: 0.41; R 2 L : 0.21 Phi-p: 0.40 Data Analysis

21 4/9/2007Copyright, 2007, Sean Wilson20 Classplot: core political speech Tau-p: ** R 2 L : 0.03 Phi-p: ** Data Analysis

22 4/9/2007Copyright, 2007, Sean Wilson21 Cases 0 A protester wore a military uniform in an anti-war theatrical demonstration held outside an Army-induction center in Houston. He would shoot a fellow protester with a water gun filled with red liquid, which looked like blood. The skit would end with the discovery that the person shot was really a pregnant woman. He was convicted of wearing a military uniform without authorization. Held, conviction overturned. Schacht v. United States, 398 U.S. 58 (1970). Burger Harlan White 0 Leftist students wanted to form an anarchist group at a state university. They were denied recognition because the group was associated with disruption and violence. The student code forbid disrupting class and violating others ’ rights. Held, the university is violating the right of association. The University may prohibit actual disruption, but not the mere preaching, advocating or discussing such things. Case Remanded. Healy v. James, 408 U.S. 169 (1972). White Rehnquist Burger Powell 0 Socialists wanted to be excluded from campaign reporting laws. Two issues emerged: (1) whether Socialists have to disclose the identity of their contributors pursuant to law; and (2) whether they have to disclose how they spent campaign funds. Held, Socialists win on all issues. This entry is the vote on issue (1). Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87 (1982). White Rehnquist Burger Powell O ’ Connor Leftist Speech

23 4/9/2007Copyright, 2007, Sean Wilson22 Cases 0 Citizen cursed the police, who were busily arresting her son: “ God damn mother fuckers, ” she said. Convicted of using obscene or opprobrious language toward a police officer. Held, overturned. Lewis v. New Orleans, 408 U.S. 913 (1972); and 415 U.S. 130 (1974) (case appealed again from remand, with same issue, same vote). White Powell 0 Brown, a Black Panther, referred to the police as “ mother fucking fascist pig cops ” and one particular officer as “ that black mother fucking pig. ” Held, permissible speech. Brown v. Oklahoma, 408 U.S. 914 (1972). White Powell 0 A gay political activist living in an a diverse and eclectic neighborhood that is the center of gay political and social life in Houston, witnessed police officers accosting a friend. Becoming angered, he tried to distract officer attention away from the friend by shouting, "Why don't you pick on somebody your own size? ” The officer replied, "Are you interrupting me in my official capacity as a Houston police officer?" The defendant shouted, “ Yes, why don't you pick on somebody my size?" He was charged with obstruction. Held, conviction overturned. The First Amendment allows you to verbally disparage police officers. Houston v. Hill, 482 U.S. 451 (1987). Scalia Powell White O ’ Connor Anti-police speech

24 4/9/2007Copyright, 2007, Sean Wilson23 Brennan Marshall Stevens An Illinois trial court issued an injunction which denied Nazis the right to display the swastika, distribute pamphlets and march or walk in Skokie. The problem was that no Court in Illinois would stay the order so appeal could be taken. The issue before the US Supreme Court was whether it could treat a denial of a stay as a “ final judgment ” for purposes of taking jurisdiction. Two issues exist: (1) whether the Nazi's have a right to march in Skokie; and (2) whether a stay should be issued. Held, Nazi ’ s can march, stay granted. National Socialist Party v. Skokie, 432 U.S. 43 (1977) (vote on the first issue only). Burger White Powell Rehnquist Stevens Brennan Marshall Indianapolis passed an ordinance that criminalized the graphic, sexually explicit subordination of women, whether in pictures or words, that included the depiction of women as sexual objects who enjoy pain or humiliation, experience sexual pleasure from rape. Held, unconstitutional. American Booksellers Ass ’ n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), summarily aff ’ d, 475 U.S.1001 (1986). Powell White Nazis and Rape Cases

25 4/9/2007Copyright, 2007, Sean Wilson24 The FCC tried to ban sexually-oriented pre-recorded telephone messages by relying on a statute that bans obscene and indecent commercial telephone messages. Held, you can ban obscene messages, but not indecent ones.The constitution protects indecent phone calls. Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989). (This is the vote on indecency only). Rehnquist Scalia O’Connor Kennedy White The state of Washington attempted to criminalize films that incite "lust. ” Held, the First Amendment protects visual images that incite lust. Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985). Rehnquist Burger O ’ Connor White Phone Sex Cases

26 4/9/2007Copyright, 2007, Sean Wilson25 Cases 0 Federal law prohibited the unsolicited mailing of ads for contraceptives. A company wanted to mass mail unsolicited advertisements promoting its contraceptive products and discussing venereal disease and family planning. Held, condom mailings are free speech. Bolger v. Youngs Drug Products, 463 U.S. 60 (1983). Rehnquist Burger O'Connor Powell White 0 Rhode Island banned merchants from advertising the price of liquor in places other than a sign in front of their store. They could not publish in news media, billboards, radio, etc., the fact that they had lower prices than other merchants. Held, the Constitution protects liquor ads; this is free speech. 44 Liquormart, v. Rhode Island, 517 U.S. 484 (1996). Rehnquist Thomas Scalia O'Connor Kennedy 0 The federal government tried to ban disclosure of alcohol content of beer on labels. It argued that the ban was necessary to suppress the threat of "strength wars" among brewers, who, without the regulation, would seek to compete in the marketplace based on the potency of their beer. Held, beer- strength ads are free speech. Rubin v. Coors Brewing Co., 514 U.S. 476 (1995). Rehnquist Thomas Scalia O'Connor Kennedy Advertising Vice

27 4/9/2007 Copyright, 2007, Sean Wilson26 Part III: Who are the Textualists? Basic Idea so far: When legal sentences are MOST indeterminate (gradiency with fluctuation) (turning a word into poetry) Opinion disagreement is higher When legal sentences are LEAST indeterminate (those cases in the core of the right of speech) Left-shift in the data High degree of opinion homogeny “Jurisprudential regime” (“content restriction”) Let’s do something different: Take all the coded cases in the data set Free speech (all referents) Search and Seizure Substantive Due Process Abortion etc Throw them into one giant regression To see which justices are most influenced by language cues (textualism) More information: DissertationDissertation Who are the textualists? Logit Regression: Dependent Variable: Yes/No Is the right granted? Independent Variable: Language rigidity (determinacy) 1 = most rigid (simple sentence, archetypical referent) 2 = intermediate (simple sentence, diffused referent) 3 = least rigid (abstract gradiency, referent extensions) Part I Part II Part III

28 4/9/2007Copyright, 2007, Sean Wilson27 Table 8: Language Rigidity Coefficients JusticeNCoefficientP-levelJusticeNCoefficientP-level Rehnquist131-1.0490.000Stewart78-0.1670.602 Thomas33-1.1880.038Souter35-0.1850.717 Scalia55-1.6290.001Breyer210.499 Burger82-0.6010.032Stevens107-0.1940.470 O'Connor86-0.7310.014Ginsburg22-0.4390.555 Kennedy47-1.6330.004Black32-0.5520.151 Powell79-1.4830.000Warren26-0.7430.142 White143-0.8680.000Brennan127-0.2490.479 Harlan320.1100.766Fortas16-0.1070.841 Clark*15-0.8770.195Marshall113-0.1380.703 Blackmun117-0.8870.000Douglas*51-0.1370.857 *Note: For two justices, Clark and Douglas, the regression predicted either failure or success perfectly. This was a spurious outcome resulting from the fact that the data for Y did not vary at given levels of X. The data for Justice Douglas, for example, does not vary for votes where law is coded as rigid. Clark does not vary for votes coded as least rigid. This produces an extreme and spurious coefficient. To fix the problem, I have simply added one simulated vote to Douglas and Clark so that their data is not uniform across a given value of rigidity. For Douglas, I added a 0 in a case that had a rigidity value of 1; for Clark I added a 1 for a case that had a rigidity value of 3. This produced a more realistic coefficient..

29 4/9/2007Copyright, 2007, Sean Wilson28 Table 9: The Effect of Language Rigidity upon Individual Justices JusticeOddsPercent Percent Change In Odds Likelihood Ratio R- squared Rehnquist2.85450.74185 %0.111 Thomas3.28110.77228 %0.111 Scalia5.09630.84410 %0.206 Burger1.82390.6582 %0.044 O'Connor2.07670.67108 %0.055 Kennedy5.12020.84412 %0.186 Powell4.40760.82341 %0.186 White2.38140.70138 %0.096 Blackmun2.4270.71143 %0.086 Note: The coefficients in the prior table were negative. For simplicity, I have removed the negative sign (see below).

30 4/9/2007 Copyright, 2007, Sean Wilson29 Conclusions 1. It is too expensive for liberal-valued justices to use language rigidity as a decision structure in Bill of Rights cases -- it costs too much. 2. The non-liberal valued justices use it not because they are maximizing policy desire or playing games -- they use it because they can afford it. -- they use this structure to manage a set of unpleasant outcomes -- Analogy: paying taxes. -- if they didn’t elect to pay the tax, they could maximize policy desire. -- it allows them to vote for: the police state against abortion against erotica, against privacy against fitting law to society. but in the process they are forced to vote for: flag fires condom ads phone sex internet child porn act striking down sentencing enhancements they shun votes for tort reform they vote for anarchy organizations on campus socialist campaigns mouthing off to police officers criminals to market crime-story books, etc. etc. Why would non-liberal justices want to embrace textualism as a policy strategy? The text allows us to give police immense power of detection It is not in the constitution That is not what the word means Not in the document Just change the words then Kennedy and Scalia in Johnson Decision constituence Jury Trial Clause (relatively stern command) Nothing requires non-liberal justices to behave this way (textually-based) Not in the Constitution! Language Constituence Policy gain requires loss Conservative Political Psychology: Textualism is a fundamental component of constitutionalism But this value has both policy benefits and costs Larry Baum Justices have legal goals Justices have policy goals Justices don’t have to be principled They care about their vision of law as much as the policy result Sub-optimal policy market caused primarily by a language constituence What about the other justices? Textualism is too expensive? Wimpy “liberals:” – pragmatism? Strong liberals – nothing? Conclusion: non-liberal justices are operating a sub- optimal policy market caused significantly by a language constitutence Part I Part II Part III

31 4/9/2007Copyright, 2007, Sean Wilson30

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