How to do (presidential) things with words

Donald Trump’s home has been raided by the FBI. While there has been no official announcement of the object of the raid, most are assuming that the government is looking for official documents that the former president may have taken with him from the White House. And particular concern has been raised about possible secret (classified) documents. This raises an interesting legal question, because it is generally accepted that the president has broad latitude to classify and declassify any information.

One of the great texts of modern Anglo-American philosophy of language is J L Austin’s How to Do Things with Words. The title is brilliant, of course, and it compelled me to pick it up off a friend’s bookshelf and read it before I’d ever heard of it or knew how significant it was. As someone who had immersed himself as a teenager in the early twentieth century mathematico-logical approach to Austin’s simple point was a revelation: Language is not solely (or even mainly) about making statements about the world that can be judged on their truth value. (Wittgenstein had already led me into this terrain, but Austin is much more concrete, and not so oracular.)

Austin’s point is that there is a whole class of “speech acts”: Verbal utterances that are not true or false, but actions. Examples are

  • Making a promise;
  • Naming something (e.g., a ship christening, one of Austin’s examples);
  • Issuing a challenge, bet, or threat;
  • Marrying (meaning here, performing the ceremony, though also one of the parties making marriage vows);
  • Making an order;
  • Handing down a legal ruling.

Crucial to Austin’s analysis is that we need different categories for describing the success of such utterances. Not truth, but appropriateness. Basically, there needs to be an accepted conventional procedure for conducting this act at a certain time, with agreement that the procedure has a certain effect, and such that the role of uttering the words has an established role in the procedure. And this procedure must have been carried out in the correct circumstances by appropriate people, and in the correct manner.

Which brings us back to the sticky-fingered former president. One of Trump’s lackeys is insisting that Trump can’t have broken the law regarding classified information, because he declassified all of it before he stole it. (Regardless of whether the information officially classified, he presumably still contravened the Presidential Records Act by taking the government documents, but that seems like a more politically venial crime than mishandling classified information.)

“The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified,” Kash Patel, a former staffer for Rep. Devin Nunes (R-CA) and, briefly, a Pentagon employee, told Breitbart in May.

“I was there with President Trump when he said ‘We are declassifying this information,’” Patel added.

There is an established procedure for declassifying documents, which may be invoked by a president, but it is more complicated than the president simply declaring “I declassify thee”. (For one thing, how would you define the blast radius of such an order? Has the president declassified all information held by the government? Everything written on papers in the general direction the president is gesturing at? What about an encrypted laptop in the same room?) “Per a 2009 executive order, markings on classified material need to be updated to reflect changes in their status.”

Patel went on to suggest that Trump had been betrayed, but that his order to “declassify” should retain legal force.

“It’s petty bureaucracy at its finest, government simpletons not following a president’s orders to have them marked ‘declassified,’” Patel said. “The president has unilateral authority to declassify documents — anything in government. He exercised it here in full.”

In Austin’s framework, there is a conventional procedure being invoked here, and the president is the appropriate person to invoke it. But the procedure was not carried out in the correct manner. It is rather as though an eager couple in a hurry appears in church. They haven’t registered their marriage (28 days required by law in England), and they don’t have time for a full ceremony. The priest says “I declare you married” and sends them on their way.

Trump’s lackey treats this as a mere matter of “petty bureaucracy”, but the need to exercise power through formal procedures is an important check on autocracy. In the Third Reich the Führer’s will was paramount, even if it had not been expressed. Germans were supposed to “work toward the Führer”. Requiring explicit instructions in specific forms creates a modicum of transparency and accountability.

There’s a certain formality two-step here that is immensely corrosive of public responsibility. You start with the observation, the president has the right to do X if he chooses. It’s a plenary power, potentially dangerous, so it is hemmed in by various complications and procedures. In particular, he needs to explicitly invoke the power. Which you can’t do in the required specificity to an unlimited extent. And then you start to say, well, it’s his power, he could exercise it any time he wants, so it’s mere pettifogging to insist that he actually have done that rigmarole of invoking, and pretty soon everyone is just working toward the leader, guessing what the law currently is.

The urtext of the modern Anglo-American welfare state

In George Minois’s History of Old Age I noticed this passage from the 5th century Christian writer Salvian of Marseille:

Those who commit [these sins] have grown old, furthermore, they have become poor: two circumstances which only serve to worsen their crime, for sinning in youth, sinning in wealth is a much less surprising matter. What hope, what remedy can there be for these men who are not turned away from their habitual impurity either by indigence or by declining age?

We expect the rich to be pigs, but the poor are obliged to set a good example for the rest of us. It’s interesting that we tend to be much more explicit in winking at the occasional depravity of youth, explaining it away with their not-yet-fully-developed mental faculties, and their ability to learn and grow into a more responsible maturity. We also connive at all manner of crimes and misdemeanours from the rich, without ever expecting of them that they will some day be poor and well-behaved. I think, because there are no more cakes and ale, that thou shalt be virtuous…

The importance of saying “importance”

Susan Collins — Republican Senator from Maine — has made herself a legislative punchline by consistently pretending to be moderate by expressing her “concern” for the potential consequences while voting down the line for right-wing priorities. In particular, she claimed repeatedly to support abortion rights while voting for the Trump Supreme Court nominees who were committed to overturning Roe v. Wade. (She infamously proclaimed — after voting against conviction in Trump’s first impeachment trial — that she believed the president had “learned his lesson”. Which, in a sense, was true.)

Now she is shocked at how those justices deceived her. But the evidence is… unconvincing. Her staff have shared notes with the NY Times, from her discussions with Brett Kavanaugh during the time when the Senate was considering his nomination. He said:

Start with my record, my respect for precedent, my belief that it is rooted in the Constitution, and my commitment and its importance to the rule of law… I understand precedent and I understand the importance of overturning it

Roe is 45 years old, it has been reaffirmed many times, lots of people care about it a great deal, and I’ve tried to demonstrate I understand real-world consequences

“Lots of people care about it.” No suggestion that he cares about it. The only thing he says about his own intentions is literally the opposite of what Collins suggests. If he had said in a secret meeting with Trump “I understand the importance of overturning” precedent, everyone would understand that he was promising not to protect Roe v. Wade. It actually takes a lot of wishful thinking — Collins’s specialty — to interpret that as a promise to protect abortion rights precedents. That would normally be expressed as “the importance of not overturning precedent”.

Out-of-the-box approaches to the school shooting problem in the US

Now that the proverbial “good guys with a gun” — 19 of them, in fact — have singularly failed to prevent the mass slaughter of children in Uvalde, Texas, the American Right is resorting to ever more absurd proposals to deal with the terror that Americans feel over the threat of children being shot to death in school. Some are proposing that Guns don’t kill people, doors that let gunmen in kill people. Others argue that we stop sending our children to school altogether.

Eventually I expect they’ll hit on an old Cold War-era solution. Back in the early 1980s Ronald Reagan expressed dismay, in one of his State of the Union addresses, about a survey that found like a majority of US children said they feared there might soon be a nuclear war. Cartoonist Mark Stamaty, in his series Washingtoon, showed a group of leading generals listening to the speech and exclaiming, “American children suffering in fear of a nuclear war. That is unacceptable!” And they task the Pentagon with solving the problem… by commissioning a television series starring “Willie the Warhead” that will teach children to welcome rather than to fear nuclear war.

I foresee a similar solution eventually arising from the Christian Soldier circles. Our children should not live in fear of being murdered by a nut with a gun in their schools. In the television series Straight to the Top, they’ll learn to see school shootings as a shortcut to the delights of heaven. Each week another group of blameless godfearing youth get dispatched by a leering antifa Democrat, and then get to eat ice cream and play video games in the divine presence, and enjoy watching the leftist killer being tormented in Hell. A recurring gun-grabber character will be the comic relief, until it turns out that he’s actually the one training the killers, in order to further his plot to carry out a Marxist revolution in a disarmed America.

Rothian perspectives on the current political moment in the US

The juxtaposition of “pro-life” jubilation at saving embryos without even paying lip service to preserving the lives and health of pregnant women, with their equally full-throated defence of the weapons that slaughter young children reminds me of the opening of a little-known book of satirical monologues and dialogues by Philip Roth, published around 1972 under the title Our Gang. The main character of these sketches was Tricky, his barely veiled caricature of Richard Nixon.

The first dialogue is titled “Tricky Comforts a Troubled Citizen”. The citizen is responding to Nixon’s 1971 statement about the need to restrict “abortion on demand”, because of his “personal belief in the sanctity of human life, including the life of the yet unborn”. The citizen agreed with this position, but was unsure how to square it with Nixon’s decision to show special leniency to Lieutenant William Calley, who had been convicted of murdering civilians at My Lai, in Vietnam, in 1968.

CITIZEN: Inasmuch as I feel as you do about the unborn, I am seriously troubled by the possibility that Lieutenant Calley may have committed an abortion. I hate to say this, Mr. President, but I am seriously troubled when I think that one of those twenty-two Vietnamese civilians Lieutenant Calley killed may have been a pregnant woman.

TRICKY: … We have a tradition in the courts of this land that a man is innocent until he is proven guilty. There were babies in that ditch at My Lai, and we know there were women of all ages but I have not seen a single document that suggests the ditch at My Lai contained a pregnant woman.

Tricky goes on to explain in his lawyerly way that Lieutenant Calley would have had no way way of knowing if the woman were pregnant, and in the state of panic she would have been in it is unlikely to have been capable of communicating that to him.

CITIZEN: But, sir, suppose that he did know she was pregnant.

TRICKY: Well, we are down to… this issue of “abortion on demand”, which, admittedly, is totally unacceptable to me, on the basis of my personal and religious beliefs.

CITIZEN: Abortion on demand?

TRICKY: If this Vietnamese woman presented herself to Lieutenant Calley for abortion… let’s assume… she was one of those girls who goes out and has a good time and then won’t own up to the consequences… and Lieutenant Calley, let’s say, in the heat and pressure of the moment, performed the abortion, during the course of which the woman died… Well, I just have to wonder of the woman isn’t herself equally as guilty as the lieutenant… Consequently, even if Lieutenant Calley did participate in a case of “abortion on demand”, it would seem to me… that there are numerous extenuating circumstances to consider…

Presumably this explains the lack of concern the American Right shows over taking any action to prevent incidents like the recent school shooting in Uvalde. The murdered girls were all too young to be pregnant. No danger that any abortions were committed. That would be, in Tricky’s words, “totally unacceptable”.

Self-deconstructing clichés: Polymeter edition

For earlier editions of this occasional series, see Weight-loss edition, Supreme Court edition, Europe edition, Bill of Rights edition, open door.

I remember very clearly when the figure of speech “the mother of all X” came into English. It was during the first Gulf War, and Saddam Hussein gave a speech threatening the US-led alliance with “the mother of all battles” should they have the temerity to attack. I recall how the phrase was so strange that an area expert spoke on television, explaining that this was the literal translation of a somewhat flowery Arabic expression, used to evoke an exceptionally strong superlative.

Because, the thing about mothers is that they are a) important, and b) unique. Which makes it surpassingly odd that Trump propagandist and still-congressman Devin Nunes some time ago, in the context of Trump’s first impeachment trial, referred to the allegations against the president as

“one of the mothers of all conspiracy theories” to imagine that “somehow the president of the United States would want a country he doesn’t even like … to start an investigation into Biden.”

To paraphrase an old saying, “a victory has a hundred fathers, but a conspiracy theory has a hundred mothers”, apparently.

The de-wormer turns

Apparently, a conference in Florida to promote the use of anti-parasite treatment Ivermectin for Covid, turned into a super-spreader event.

“I have been on ivermectin for 16 months, my wife and I,” Dr Bruce Boros told the audience at the event held at the World Equestrian Center in Ocala, adding: “I have never felt healthier in my life.”

Boros is now reported to be gravely ill with Covid, and at least six other physicians who attended were also infected. It seems to me, if you don’t want people to dismiss your miracle treatment as “horse de-wormer”, you might choose to hold your national gathering somewhere that is not an equestrian center.

Last chopper out of Dallas

So, two weeks ago we had desperate people fleeing the victorious entry of misogynistic religious extremists into Kabul:

Not Texas

This week we had desperate people fleeing another group of victorious misogynistic religious extremists:

Salesforce CEO Mark Beinoff said the company will help employees move out of Texas if they so choose after the state’s Republican governor signed a strict ban on abortions. “Ohana if you want to move we’ll help you exit TX,” Beinoff tweeted Friday, sharing a link to a CNBC article about the company’s decision.

The return of quota sampling

Everyone knows about the famous Dewey Defeats Truman headline fiasco, and that the Chicago Daily Tribune was inspired to its premature announcement by erroneous pre-election polls. But why were the polls so wrong?

The Social Science Research Council set up a committee to investigate the polling failure. Their report, published in 1949, listed a number of faults, including disparaging the very notion of trying to predict the outcome of a close election. But one important methodological criticism — and the one that significantly influenced the later development of political polling, and became the primary lesson in statistics textbooks — was the critique of quota sampling. (An accessible summary of lessons from the 1948 polling fiasco by the renowned psychologist Rensis Likert was published just a month after the election in Scientific American.)

Serious polling at the time was divided between two general methodologies: random sampling and quota sampling. Random sampling, as the name implies, works by attempting to select from the population of potential voters entirely at random, with each voter equally likely to be selected. This was still considered too theoretically novel to be widely used, whereas quota sampling had been established by Gallup since the mid-1930s. In quota sampling the voting population is modelled by demographic characteristics, based on census data, and each interviewer is assigned a quota to fill of respondents in each category: 51 women and 49 men, say, a certain number in the age range 21-34, or specific numbers in each “economic class” — of which Roper, for example, had five, one of which in the 1940s was “Negro”. The interviewers were allowed great latitude in filling their quotas, finding people at home or on the street.

In a sense, we have returned to quota sampling, in the more sophisticated version of “weighted probability sampling”. Since hardly anyone responds to a survey — response rates are typically no more than about 5% — there’s no way the people who do respond can be representative of the whole population. So pollsters model the population — or the supposed voting population — and reweight the responses they do get proportionately, according to demographic characteristics. If Black women over age 50 are thought to be equally common in the voting population as white men under age 30, but we have twice as many of the former as the latter, we count the responses of the latter twice as much as the former in the final estimates. It’s just a way of making a quota sample after the fact, without the stress of specifically looking for representatives of particular demographic groups.

Consequently, it has most of the deficiencies of a quota sample. The difficulty of modelling the electorate is one that has gotten quite a bit of attention in the modern context: We know fairly precisely how demographic groups are distributed in the population, but we can only theorise about how they will be distributed among voters at the next election. At the same time, it is straightforward to construct these theories, to describe them, and to test them after the fact. The more serious problem — and the one that was emphasised in the commission report in 1948, but has been less emphasised recently — is in the nature of how the quotas are filled. The reason for probability sampling is that taking whichever respondents are easiest to get — a “sample of convenience” — is sure to give you a biased sample. If you sample people from telephone directories in 1936 then it’s easy to see how they end up biased against the favoured candidate of the poor. If you take a sample of convenience within a small demographic group, such as middle-income people, then it won’t be easy to recognise how the sample is biased, but it may still be biased.

For whatever reason, in the 1930s and 1940s, within each demographic group the Republicans were easier for the interviewers to contact than the Democrats. Maybe they were just culturally more like the interviewers, so easier for them to walk up to on the street. And it may very well be that within each demographic group today Democrats are more likely to respond to a poll than Republicans. And if there is such an effect, it’s hard to correct for it, except by simply discounting Democrats by a certain factor based on past experience. (In fact, these effects can be measured in polling fluctuations, where events in the news lead one side or the other to feel discouraged, and to be less likely to respond to the polls. Studies have suggested that this effect explains much of the short-term fluctuation in election polls during a campaign.)

Interestingly, one of the problems that the commission found with the 1948 polling with relevance for the Trump era was the failure to consider education as a significant demographic variable.

All of the major polling organizations interviewed more people with college education than the actual proportion in the adult population over 21 and too few people with grade school education only.