By “the public sphere” we mean first of all a realm of our social life in which something approaching public opinion can be formed. — Jürgen Habermas, “The Public Sphere: An Encyclopedia Article (1964),” 49.

In a note on this passage, Peter Hohendahl explains that the public sphere is not the same as a crowd of people per se, but rather consists of institutions (though these do consist of individuals, of course). In today’s liberal democracies, this includes institutions like “newspapers and magazines, radio and television” (49).

Hohendahl also notes that the state (i.e., government) does not overlap with the public sphere, but is in fact an opponent (of a sort). Habermas writes that state authority is an “executor of the political public sphere,” but “it is not a part of it” (49). Hohendahl clarifies this:

Habermas designates that sphere as public which antiquity understood to be private, i.e. the sphere of non-governmental opinion making. The public sphere, then, consists of associations of private individuals, but expresses their group (“public”) will. This will can be directed towards controlling or influencing state activities, but the state remains separate. But this influence by a rational public sphere over state activities is critical to liberal democracies (50).

What is the difference between society and the public sphere?

“Society” is related to the state in a way similar to that of the public sphere: it is “a private realm occupying a position in opposition to the state” (52). But unlike the public sphere, which refers to institutions, society for Habermas consists of people in their private and individual capacities. He notes, though, that in contemporary market-based economies, society extends “beyond the bounds of private domestic authority” (52).

Habermas explains that modern constitutions in liberal democracies sought to protect society “as a sphere of private autonomy” and to limit state (“public”) authority (52-53). They also created a space between the two — the public sphere:

Between these two spheres, the constitutions further insured the existence of a realm of private individuals assembled into a public body who as citizens transmit the needs of bourgeois society to the state (52-53).

The First Amendment of the United States Constitution, which includes both clauses that protect both freedom of speech and of assembly is an excellent example of constitutional protection for the public sphere.

What, then, is the difference between public and private?

For Habermas, the private sphere is a primarily about autonomy: “a sphere of bourgeois society which would stand apart from the state as a genuine area of private autonomy” (51). This is the area of family, exchange, and even work that revolves around individuals, not institutions. In many respects, “private sphere” and “society” appear to be synonyms to Habermas, as both consist of areas of autonomous activity, that is, activity separate from that of the state (though the state may intrude).

The public sphere thus occupies the space between state (government) actors and private actors, and between “public authority” of the government and the private authority of autonomous individuals. But while this sounds fine, I rapidly find the boundaries blurring. At what point does a group of private individuals become a “public institution”? When they attempt to influence the state? When they attempt to influence other groups? When is a private business part of the public sphere, and when is it “purely” private? Habermas’ definitions are useful, but do not seem to me to be either definitive or firm.

Jürgen Habermas on the public sphere, the state, and the private sphere from in propria persona © 2005 - 2012 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.

Before the 1915 — and for a while afterwards, blood transfusions were done directly from arm-to-arm, person-to-person. Blood had to be provided “on the hoof” by donors in the same room at the same time as the patient, the procedure and linkage was complex and fragile, and complication rates were relatively high for both patient and donor. The development of anti-coagulants gave doctors an alternative, allowing blood to be taken and stored for short periods of time. It also led to storage repositories for blood, repositories which came to be known by the end of the 1930s as “blood banks.” The metaphor suggested a familiar concept of deposit-and-withdrawal to people, along with a strong sense of the key importance of oversight and care that bank failures in the Depression had instilled in people.

These early systems usually paid those who provided blood, or operated on a credit-and-debit system where patients who received blood had friends and family donate on their behalf to correct the imbalance. Massive blood donation campaigns in WWII — now that blood, or at least plasma, could be sent overseas, encouraged unselfish donation of blood instead, an approach that would become the standard by the late 20th century.

Post-war, however, most blood banks increasingly commodified their blood supplies, paying donors and in turn supplying blood as a fungible product to hospitals and doctors. At the same time, product liability law in the United States was increasingly moving towards strict liability — products that caused harm were automatically considered defective, and producers and suppliers could be held liable without proof of negligence.

Although blood had become increasingly safe (blood types were well understood and blood products were labeled and tested for type), diseases like hepatitis were all-too-often transmitted during transfusions. Infected patients turned to product liability lawsuits to recover damages. By the 1960s, strict product liability had become established in the law (led by California’s Greenman v. Yuba Power Products, 59 Cal. 2d 57 (1963)), and blood banks became increasingly nervous about their potential liability to patients.

As a consequence, blood banks moved in two related directions. First, in cooperation with hospitals, they “rebranded” themselves as service providers. Blood (formerly the product) was now incidental; banks weren’t selling blood anymore, they were connecting patients and donors. Second, and relatedly, blood banks stopped paying donors for whole blood (which has more potential disease transmittal issues), and blood donation became a kind of “gift economy“: as in WWII, public-service campaigns encouraged people to donate in order to help others, and not as a means of income. Blood was increasingly “de-propertized” or “de-productized” in order (at least partly) to keep it out of the realm of strict product liability law.

This approach had become firmly entrenched in the 1970s, and continues today.

I was left wondering how much this shift was influenced by, or in turn had an influence on, the American legal conception that we have no property rights in our own bodies (Moore v. Regents of the University of California, 51 Cal. 3d 120 (1990)). That is, if cells taken from me become money-makers, I am not entitled to a share of the profits. Similarly, the United States bans the sale of organs — only voluntary donation is permitted. (Sperm, eggs, and blood are some exceptions to this general rule, although even then property rights are limited though sale is permitted.) I wonder how much influence product liability had on this outcome, especially since the prohibition is often presented in moral terms? Similarly, did moral qualms about sales of human products influence, encourage, or help the move towards blood donation as a gift economy?

I look forward to seeing Dr. Swanson’s eventual book on blood banks (and other kinds of “body banks”) — it should be fascinating.

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Kara Swanson on blood banks, commodification, and “de-propertization” from in propria persona © 2005 - 2012 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.

Nonetheless, proponents insist that individual states have the power to nullify federal laws. Much of this new-found fascination with nullification revolves around opposition to the Affordable Care Act (“Obamacare”).

Nullification and the Constitution

The constitutional basis for rejected nullification comes from two key clauses and sections. First, the Supremacy Clause (Article VI, Clause 2) established federal law as supreme over state law:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Second, Article III, Section 2 says, in part:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority…

In responding to nullification attempts by various states, the Supreme Court has consistently rejected the theory. Thus, the Supreme Court in 1809 argued that allowing nullification would be essentially make the Constitution itself worthless:

If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery; and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals. – United States v. Peters, 9 US 115 (1809)

Although it never went to the Supreme Court, the Nullification Crisis of the 1830s forced President Andrew Jackson — formerly supportive of such state actions — to respond to South Carolina’s rejection of federal tariffs:

I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which It was founded, and destructive of the great object for which it was formed. – President Jackson’s Proclamation Regarding Nullification, December 10, 1832.

Virginia twice attempted to reject federal supremacy, and twice lost, first in Martin v. Hunter’s Lessee, 14 U.S. 304 (1816) and second in Cohens v. Virginia, 19 U.S. 264 (1821). In 1924, Ohio tried to tax a federal bank (in violation of federal law and a Supreme Court decision), and lost in Osborn v. Bank of the United States, 22 U.S. 738 (1824).

Georgia infamously nullified a federal treaty with the Cherokee in the 1820s, and lost in Worcester v. Georgia, 31 U.S. 515 (1832). Before any enforcement action could be taken, President Andrew Jackson (who supported Georgia) negotiated an end to the crisis, leading to forced Cherokee relocation and the Trail of Tears.

Some Northern states attempted nullification in response to federal Fugitive Slave Laws. The Supreme Court rejected Pennsylvania’s attempt in Prigg v. Pennsylvania, 41 U.S. 539 (1842). Wisconsin tried again to protect fugitive slaves within its borders, and was rebuffed in Ableman v. Booth, 62 U.S. 506 (1859).

The secession of Southern states — the ultimate assertion of state over federal power — put an end to the nullification discussion until the 1950s.

In the wake of Brown v. Board of Education, 347 U.S. 483 (1954), many Southern states attempted to reject or nullify federal intervention in their states and to preserve segregation. In response to Alabama’s nullification attempts, the Supreme Court wrote in Cooper v. Aaron, 358 U.S. 1 (1958):

In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted “ingeniously or ingenuously.”

The law in this are is settled. No petition or initiative, act of Congress, executive order, act of a state legislator, or governor’s action can change this, however strong, logical, or powerful the argument for it may be.

Revolution and the Rule of Law

There are nonetheless several paths to making nullification legal. Amending the federal constitution is one challenging path: it requires super-majorities at all stages, and cannot be done by any state alone. Another potential method would be to convince the current Supreme Court that previous precedent was wrong. If that failed, one could try to slowly replace the current Supreme Court with new justicies that believe in nullification, and are willing to reject 200 years of precedent. These are the only approaches allowable under the Constitution. (Remember, the Declaration of Independence is a revolutionary document, not a legal one, and it carries nothing but persuasive weight in American law. Similarly, the Federalist Papers are persuasive arguments, and carry no other legal weight.)

You cannot accept the current Constitution without also accepting the consequences of what it establishes: that the Supreme Court is the final arbiter of what the Constitution means. And the Supreme Court — acting under the Constitution and its amendments — has rejected nullification as unconstitutional. (Yes, their decisions can be wrong and even unjust, but they are always, by definition, constitutional.) No quote by Thomas Jefferson, James Madison, or anyone else can change this, even if it can give you philosophical grounds to advocate for revolutionary change. This is why Thomas Jefferson had to reach for “natural law” when he advocated for rejecting England’s rule over the American colonies. Again, such moves can be justified as revolutionary, but they fall outside the Constitution. 

Any other path to permitting nullification by states requires rejecting our establishing document (including the Tenth Amendment) through revolution. Taking this path would require rejecting a core value of the American legal tradition: respect for the rule of law. It’s an approach that led directly to the American Civil War, where the South rejected the Constitution and established an entirely new governmental system. Is this the path nullification proponents seek? To reject the Constitution they purport to hold sacred? To overthrow our democratic government and replace it with another? If so, they should acknowledge that; if not, they should recognize the limited constitutional paths to change.

Nullification and Obamacare: rejection of the rule of law from in propria persona © 2005 - 2012 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.

I’ve also switched themes, at least for now. The look may still change as I take this opportunity to adapt and improve the site.

Done recovering posts after server failure from in propria persona © 2005 - 2012 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.

Unfortunately, my SQL backup system had been failing silently, and the latest ones were from February. Fortunately, all my filesystem data (pictures, templates, static files) were backed up constantly via Dropbox, so none of that was lost. But how to recover all my posts since February?

Google caches pages, so all my pages were archived there at least — but it’s quite clunky to pull down more than a few pages from their caches. Warrick promises to automate the process, but I couldn’t get it to recover my articles (though it worked fine for other pages). So instead I went to Google Reader — where my RSS feed has been archived going back years. I went through each missing article and sent it into Evernote to archive it. Then I tediously went through Evernote and cut & pasted my article back into WordPress with the correct date (and re-added images, which had been saved via Dropbox). Frustrating, but it’s working fine! (And I’ve switched hosting providers.)

The lesson? Validate your backups! And never give up if it seems like you’ve lost things online. The Internet remembers.

Recovering from server failure and bad backups: the Internet remembers from in propria persona © 2005 - 2012 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.

• The news feed shows what Facebook (via “EdgeRank“) mysteriously chooses for you, and insistently switches you to it (even “Most Recent” doesn’t show quite everything anymore)
• Relatedly, it’s expanding “promoted posts”: pay $7, and Facebook will make your posts more visible to your friends
• It’s scanning your private messages for links in order to boost the “likes” of things you mention
• Facebook is removing “fake” accounts (no family pets on Facebook!) and “phony likes“

All of this makes sense from the Facebook (and Wall Street?) side. Some of it even makes sense from an advertiser-on-Facebook’s perspective. But none if it is aligned with the interests of users. And failing to align business interests with user’s interests makes for a more complex, challenging, and vulnerable business model.

Other businesses

Car makers, for example, make more money when the people who buy their cars are happy. Their users are their customers, and happy users buy more cars. So to make more money, you make better cars. (Though customer desire, for example, can still be manipulated.)

Television producers make shows for advertisers. Their customers are not their viewers. While they attempted to make up for this with various tools (like Nielsen ratings), their fundamental business model — while profitable for decades — has proven deeply vulnerable to changes in habits by their users (VCRs, then DVRs, downloading, and streaming). But because television is aligned towards their customers (advertisers) — and they have not fundamentally changed — television has struggled to adapt. They simply are not attuned to their users, since their profit comes from another source.

Facebook is facing the same fundamental problem that television is: their customers and their users are not aligned in interests. Whatever Facebook does to make a profit, then, always requires a vulnerable balance that requires convincing users that Facebook’s changes are valuable to them, even when they’re not. Or convincing users that Facebook cares about their needs, even when Facebook only cares about their actual customers.

Facebook problems

Thus, for example, Facebook cares about privacy enough to keep users quiet about the issue. Keeping users is important to Facebook (because their real customers care), but that’s an indirect concern. Facebook directly makes more money when users have less privacy, not more. But if customers were their users, that wouldn’t be true.

As another example, some users are giving up on Facebook because it simply doesn’t deliver what they want anymore. The mysterious and opaque EdgeRank — tuned to Facebook’s needs — means their friends don’t reliably see their posts anymore, and demanding $7 to remedy this is just rubbing salt in the wound. Again, if customers were their users, this wouldn’t be true.

Similarly, sites that force users to login with Facebook to read articles send a message: you, the user, are the product, not the customer. And that’s a recipe for a short-term relationship (“it’s complicated”), not a lasting one.

Solutions?

What can Facebook do about this? Unfortunately, not much. They could, of course, turn users into customers by charging a straight subscription fee — but this might drive away the user-base that provides so much value. Otherwise, though, they’re going to have to innovate with their business model in order to figure out how to align the interests of customers and users, or risk becoming irrelevant.

Facebook’s core problem: customers vs. users from in propria persona © 2005 - 2012 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.

For example, while acknowledging and lamenting this lack of general understanding of this foundational document, Peter Roff, in Americans Must Improve Their Understanding of the Constitution, chooses to emphasize “God” as if it were an unproblematic influence on the Constitution. He writes:

Prior to the Constitution, and the revolution that inspired it, the widely held belief was that power came from God and was given to kings, who in turn would use that power to rule over the people in His name.

The Constitution changed all that. It was a new covenant, established on the principle that power flowed from God to the people who then loaned it to the state in order to better administrate the affairs of man and to produce what has become known as “ordered liberty.”

While there is certainly something true in what Roff says, his “neat and tidy” summary of constitutional context collapses complexity into facile description. He does acknowledge that it was “imperfect,” at least: “The Founding Fathers themselves recognized this, including within it several mechanisms to amend it as needed.”

But the “Founding Fathers” were hardly unified in their views (vitriolic arguments between Federalists vs. Anti-Federalists are just one example). Not all of them believed in the same ”covenant” (or, as its more usually stated, “contract”) theory of government, nor did they all believe that power flowed from God to people to the state.

The Constitution itself contains no mention of covenants nor of God — though the “People” are most definitely present, right from the preamble onwards:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Gods and covenants are notably absent in the Constitution. Perhaps Roff is thinking of the Declaration of Independence?

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

(Note that it also references “the Laws of Nature and of Nature’s God,” both of which may include the Christian God, but which also reference Thomas Jefferson’s Deism).

Roff’s description of the context of the Constitution tells only part of the back-story, one that’s been used by many to make the Constitution into a Christian document, not a secular one. Roff’s description perpetuates this incomplete and misleading trend.

Similarly, Roff’s focus on the Constitution as “covenant” — a term which also has religious implications — does reference a common view of the day that governments were “social contracts“: government gains authority because people consent to that authority. The details of this were (and are debated): as one example, do we simply imply our consent by living here? What is the role of force in consent? But perhaps most importantly, here again Roff inserts God in the equation in a way that many, perhaps especially Thomas Jefferson, were at pains to remove. As the Preamble shows, God is not necessary to “form a more perfect Union.”

None of this is to say that the Founders were atheists, or that belief in God did not play a role in the writing of the Constitution. It is only to suggest that Roff’s expression of the founding of the nation obscures real complexity. His formulation implies that God is necessary to the Constitution, and that other, secular understandings are wrong. That said, no historian could hope to understand the writing of the Constitution without a background in the religious views (plural) of the time. But implying that that a faith-based perspective on the Constitution is the only correct one is equally misleading, especially to understand the Constitution in today’s context.

Believer or not, Christian, Muslim, Buddhist or other, everyone can understand that the legal rights in the Constitution are not absolute, and that the document outlines balances between various levels and branches of government that are complex and evolving. Religion is not necessary to understand the text, but is required for a proper history. (And these aren’t the same thing.)

Do we need God to understand the Constitution? from in propria persona © 2005 - 2012 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.

The federal government may spy on Americans’ communications without warrants and without fear of being sued, a federal appeals court ruled Tuesday.

But how is this possible, if the Supreme Court has already ruled (in Katz v United States) that wiretaps without warrants violate the Fourth Amendment?

First, let’s go back and review what the Fourth Amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Per usual in looking at the United States Constitution, the general idea here is clear, but the particulars are not. What does “secure” mean? How do “Warrants” related to security? What’s the role of the judiciary in this process? And perhaps most critically: what do we do about a violation?

The courts, faced with this kind of ambiguity, have decided that the most powerful enforcement mechanism is to exclude evidence gathered in violation of the Fourth Amendment from all criminal prosecutions — regardless of guilt or innocence of the parties. Beyond this, the courts rely on the legislature (Congress, in the federal system) to provide additional mechanisms of enforcement.

Of course, civil lawsuits alleging harm are a traditional, “bottom-up” way for citizens to leverage the court system to address grievances. So even without clear mechanisms granted by Congress, why can’t our common-law system build on traditional torts like trespass to enforce the Fourth Amendment?

The answer to that involves a very old doctrine known as sovereign immunity. The old idea the United States inherited was the the King (sovereign) created the Courts, and therefore they could not be used against him. Article III, Section 2 is one possible Constitutional source for federal soverieign immunity, while the Eleventh Amendment has been held to protect states. But as with many things, sovereign immunity is more deeply rooted in judicial tradition — i.e., common law — than it is in the specific words of the Constitution. 200 years+ of sovereign immunity as a core principle of the American legal system means that it will take more than a trial court to change.

While Congress could waive sovereign immunity entirely, it never has. Instead, Congress has waived sovereign immunity and allowed suits against the government only in specific types of cases — and thus the key question in AL-HARAMAIN ISLAMIC v. OBAMA is whether Congress has or has not waived immunity in the case of wiretaps. The Ninth Circuit says the answer is that Congress has not waived:

The threshold issue in this appeal is whether the district court erred in predicating the United States’ liability for money damages on an implied waiver of sovereign immunity under § 1810. It is well understood that any waiver of sovereign immunity must be unequivocally expressed. Section 1810 does not include an explicit waiver of immunity, nor is it appropriate to imply such a waiver.

In essence, the court cannot even consider the merits of the case, because the federal government is immune from suit. In short, citizens can only enforce the Katz and the Fourth Amendment restriction on warrantless wiretaps through political action (i.e., Congressional legislation), not through the courts.

All that said, the courts — per the Exclusionary Rule — will not allow evidence gathered in this way to be used in court, and might also order someone held on the basis of this evidence released in a habeus corpus petition. But without the authorization of Congress, citizens cannot sue for this violation of the Bill of Rights.

Warrantless wiretaps and the Fourth Amendment: why would a court allow a violation of the Constitution? from in propria persona © 2005 - 2012 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.

“First Internet Message Arpanet UCLA” by Flickr user Dean Terry, used under a CC BY-NC-ND 2.0 license.

I have written before on underdetermination: that in many cases, the same data can produce many “right” answers (but at the same time, not any answer is equally valid). Thus, for example, without bringing in additional support, the U.S. Constitution does not by itself definitely answer the question of whether or not GPS tracking is a “search” within the meaning of the Fourth Amendment.

To help answer this kind of question — and many other public policy questions — many of us turn to history (or sociology, or political science, or similar disciplines) to provide further evidence to help choose between equally rational arguments. The purpose of history is to provide a mildly depressing, reality-based narrative that helps guide future decisions.

History is of course too vast and detailed a source of evidence to utilize in full (how do we incorporate the experiences of everyone who has ever lived into our analysis?). Still, the data it provides can help us bolster one aspect or another of an otherwise underdetermined argument.

It should be no surprise then, that history should be invoked again to help answer the question of the role of government in society. More specifically, does — or can — government actually help innovation and development, or is it all due to the heroic efforts of individuals working within private enterprises? Asking if government can develop technologies is essentially a historical question, since development happens over time — and that’s history. So it should be no surprise that conservatives seeking evidence to support their proposition that government is the enemy of innovation should turn to history for data.

But what happens when this history is wrong?

On the WSJ opinion page, Gordon Crovitz, in “Who Really Invented the Internet?,” maintains:

Contrary to legend, it wasn’t the federal government, and the Internet had nothing to do with maintaining communications during a war.

Crovitz answers his title’s question by giving credit to private enterprise instead of government:

If the government didn’t invent the Internet, who did? Vinton Cerf developed the TCP/IP protocol, the Internet’s backbone, and Tim Berners-Lee gets credit for hyperlinks. … But full credit goes to the company where Mr. Taylor [who had worked previously for the Department of Defense] worked after leaving ARPA: Xerox.

Crovitz thus provides evidence from history to undermine an argument that government can be responsible for innovation — a perfectly valid use of history to escape the limitations of arguments about the static state of affairs we see around us at any one moment. Unfortunately, his history is simply wrong. While there is, as I noted above, so much history available that any reporting of it is inevitably selectionist and limited, that (like with underdetermination of the Constitution) does not mean that any selection of historical facts is equivalent to any other. Sometimes you are just wrong.

In the case of Crovitz’s article, the power of the press came quickly to bear on the issue. A variety of writers — including Michael Hiltzik, cited by Crovitz in support of his argument — disagree with much of the evidence Crovitz uses to support his argument. Hiltzik writes in the Los Angeles Times:

And while I’m gratified in a sense that he cites my book about Xerox PARC, “Dealers of Lightning,” to support his case, it’s my duty to point out that he’s wrong. My book bolsters, not contradicts, the argument that the Internet had its roots in the ARPANet, a government project.

Ars Technica writer Timothy B. Lee rebukes Crovitz in an article called, “WSJ mangles history to argue government didn’t launch the Internet.” In “Yes, Virginia, the Government Invented the Internet,” PC Magazine writer Damon Poeter adds, reiterating Hiltzik’s point, that

Crovitz wants to somehow credit private industry for the invention of the TCP/IP communications protocol without acknowledging that Vinton Cerf and Robert Kahn developed it on a government contract.

Then drawing on this revised evidence, Michael Moyer, the editor in charge of technology coverage at Scientific American, concludes:

In truth, no private company would have been capable of developing a project like the Internet, which required years of R&D efforts spread out over scores of far-flung agencies, and which began to take off only after decades of investment. Visionary infrastructure projects such as this are part of what has allowed our economy to grow so much in the past century. Today’s op-ed is just one sad indicator of how we seem to be losing our appetite for this kind of ambition.

Now, Moyer’s conclusion is not the only one possible, even from the revised evidence of early Internet history. Based on the shared historical evidence we know all have, it might be equally rational to argue that the Internet was an exceptional case, that in general innovation doesn’t work this way, or even that everything would have gone better or faster if government had just stayed away. This is where the debate should be — but it’s an impossible debate to have when the evidence is wrong.

Fortunately, the Internet was developed recently enough that many people were there, and can correct bad history. Also fortunately, the medium of press dissemination is the Internet, and thus there are many interested and widely read researchers who can correct the record. But so many other (mis-)uses of history lack this kind of capable and effective cadre of fact checkers, and it is left to the general public to sort through and evaluate facts and evidence themselves (and of course, even the most capable researcher or historian often reads outside of their field of knowledge). What do we do about this?

1. First, of course, writers need to take on the individual responsibility to check their facts and confirm their evidence — and to try, within their available abilities, to avoid evidence drawn from conclusions rather than conclusions drawn from evidence.
2. Second, readers should act responsibility: think critically, evaluate sources, and confirm (as much as possible) the evidence.
3. Third, historians need to accept that we have a role to play in society, whether we like it or not — and to recognize the importance of our work outside of the academy.
4. Fourth, society as a whole should recognize the importance of history and the key role historians play in providing the evidence to make informed and responsible public-policy decisions.

It’s naïve to expect historians to be unbiased. Doing history requires selectivity, and good historians draw reasonable conclusions from their work. But ethical historians (and thinkers generally) don’t mold their evidence to fit their world-views, even if their world views do (always) influence their work. There’s nothing wrong with using historical evidence to make a point — that’s an important part of public-policy analysis — but manipulating evidence undermines the validity of analysis and undermines public trust.

There are more purposes to history that facilitating public-policy decisions. But this is one key purpose of history, and its one we should all keep in mind when doing history (whether we are professionals or not). Stated too simply: good history illuminates; bad history deceives. It’s naïve to think, of course, that good history will really solve anything — but bad history certainly won’t help!

History and its purpose: the case of the government and the Internet from in propria persona © 2005 - 2012 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.

Abortion is a complex and controversial topic. As such, I won’t try to deal with it fully here (nor will I be arguing for or against the legality abortion). I will, however, point out a few issues regarding the subject in Michael J. Nellet’s “How The Left Redefined The Term ‘Rights.‘” Nellett writes:

The “right” of abortion, granted in 1973, is NOT a right under the Constitution … The “right” to an abortion is nowhere in the Constitution.

No specific, individual situations are explicitly delineated in the Bill of Rights. It is thus no surprise that abortion is not specifically mentioned. (Neither are wiretaps or handguns.) But liberty and autonomy of self (what the courts have connected to “privacy”) has been held to permeate the Constitution, and for this reason the courts have connected personal integrity and personal autonomy to the decision to have an abortion. This reading is supportable, but so are readings that deny this position  — especially when beginning assumptions differ. In Roe v. Wade, the Supreme Court found protection of the right to an abortion to be more supportable than alternative interpretations. Again, specific situations do not need to be listed explicitly in the Constitution (the Second Amendment does not mention handguns). And remember, too, that the Ninth Amendment allows for rights that are not specifically listed:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Nellett’s argument on abortion illustrates one example of constitutional underdetermination. To get to his conclusion, he adds the assumption that “an unborn child is a person whether you want to believe it or not.” This assumption is nowhere in the Constitution itself. That a fetus is not a person is also not in the Constitution. The text of the Constitution thus underdetermines the abortion question. Answering it (in either direction) requires the courts bring in something more than the text itself. Nellett’s abortion argument also illustrates another common problem of lay interpretation: confusing one foundational document with another. In his case, he confuses the Declaration of Independence (which has only persuasive authority) with the Constitution (which is binding law):

In fact, the practice of abortion is in direct confrontation with the supreme laws and rights provided for in the Constitution. According to this document, the three unalienable rights you have in this country are, LIFE, LIBERTY, and the PURSUIT of HAPPINESS!

But the phrase “life, liberty, and the pursuit of happiness” are not in the Constitution, although it is nonetheless a profoundly powerful and influential set of words. The phrase is persuasive, but not binding on the courts. And  —  to reinforce my previous point on underdetermination  —  the phrase also underdetermines an answer to the question of abortion.

Abortion and constitutional underdetermination from in propria persona © 2005 - 2012 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.