Posts Tagged ‘Supreme Court’

Do Proponents of “Originalism” Have Healthy Memories?

February 6, 2017

Originalism refers to the notion that judges should attempt to interpret the words of the Constitution as they were understood at the time they were written.  The first question is how can judges do this?  The judges need to accomplish both time travel and mind reading.  That is, they need to travel back in time and somehow understand what these now deceased individuals were thinking.

But even if this could be accomplished, is it desirable?  According to the Constitution at that  time, slavery was legal, but blacks were counted as two-thirds of a human being, and woman could not vote.  So what is the point of going back in time?  Textualists are judges who only consider  the words of the law being reviewed should be considered, neither the writers’ intent nor the consequences of the decision.  So words rather than their intended meanings and results are what is important?

Fortunately, these gross injustices were corrected by amendments to the Constitution. This was the result of the Founding Fathers realizing that there would be a need to amend the Constitution.  It seems clear that they viewed the Constitution to be a fluid document that would need to be changed over time.

So why do these concepts still prevail? Individuals who advocate these concepts are actually insulting the Founding Founders.  HM is certain that if Founding Fathers were asked about this mind reading task, they would tell people of the future not to try to travel back in time.  HM is able to make this assertion from the reading of the Constitution without having to take recourse to time travel and mind reading.

Unfortunately, these beliefs of originalism and textualism are litmus tests for some Senators in approving Supreme Court nominees.  HM thinks that any judge holding to these beliefs does not belong in Traffic Court, much less the Supreme Court.  This acceptance of originalism provides a key insight as to the break between the legal system and justice.

In case the reader has still not inferred the answer to the question posed in the title, the answer is no.

© Douglas Griffith and healthymemory.wordpress.com, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Douglas Griffith and healthymemory.wordpress.com with appropriate and specific direction to the original content.

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The Dunning-Kruger Effect

July 22, 2016

HM had an embarrassing experience when his friend, a physicist, asked him about the Dunning-Kruger effect and he had to express ignorance.  HM was embarrassed because this effect is in the same field in which HM’s interests lay.  After learning about the effect, the relevance of the effect to the current phenomena known as Trump became evident.

There are two parts to the Dunning-Kruger effect.  The first refers to the cognitive bias in which relatively unskilled persons suffer illusory superiority.  The second part refers to a cognitive bias for highly skilled individuals to underestimate the relative competence of unskilled individuals and assume that tasks which are easy for them are also easy for others.

HM will address the second part first.  A fundamental difficulty HM has in teaching is to overestimate what students do and can understand.  HM is not implying that these students are stupid, although this might be the simplest explanation.  However, it is the teacher’s responsibility to teach to the level of what the student can understand.  As a result of repeated experience with students of a certain level, the teacher can and should identify the appropriate level to teach and proceed accordingly.

Dunning and Kruger were not the first to recognize this effect.  Confucius said, “Real knowledge is to know the extent of one’s ignorance.”  Bertrand Russell said, “One of the painful things about our time is that those who feel certainty are stupid, and those with any imagination and understanding are filled with doubt and indecision.”  This statement reminds HM of the phrase, “Ignorance is bliss.”  Charles Darwin wrote, “Ignorance more frequently begets confidence than does knowledge.”  Shakespearean “As You Like It”  wrote “The Foole doth think he is wise, but the wise man knows himself to be a Foole.”

Trump followers appear to be extremely confident in Trump.  How anyone can be confident in Trump given the content of the previous Healthymemory blog posts is completely baffling to HM.  But then, HM is assuming that Trump followers have knowledge that they don’t have.

It would be interesting to have discussion groups with Trump devotees.  The objective of these discussions would not be to try to persuade them to change their opinion, but rather to discuss how the different branches of government work, the role of the Constitution and the Supreme Court.  There would also be discussion regarding the economy, foreign trade, and the subtleties and intricacies of international relations.
I think the results of these discussion group would be extremely depressing.  But they would also be informative.

Palatable, informational presentations might actually urge these followers to think and to invoke their System 2 processes.  Arguing directly regarding the potential disaster Trump could cause the county will not work because people will become defensive.  However, for those who can actually be induced to think might change their minds on their own.

There is some evidence that the Dunning Kruger Effect might be specific to western cultures.  A number of studies using East Asian participants suggest that different social forces are at play in difference cultures.  East Asians tend to underestimate their abilities and see underachievement as a chance to improve themselves and to get along with others.  If only this attitude could be fostered in our culture.

Another Western culture showing the Dunning-Kruger Effect is Great Britain’s Brexit vote.  The Prime Minister assumed that a reasoned discussion of the benefits from remaining in the EU versus the costs in leaving the EU would result in a vote to remain, but just the opposite occurred.  One problem was that a reasoned discussion did not take place.  Rather it became a rowdy political contest in which lies and misrepresentation were made.  HM needs to bring Kahneman’s two process view of cognition into this discussion.  Remember that System 1, intuition, is fast, emotional, and our default mode for processing.  System 2, called reasoning, is slow and effortful.  It became clear that remain arguments had the flavor of System 2 processing.  They were well-reasoned and thought out and supported by data.  Unfortunately, exit arguments smack primarily of System 1 processes that were largely emotional.   They wanted to be British and they wanted to prevent immigration.

For more on the Dunning-Kruger effect and for more specific references see the Wikipedia.

© Douglas Griffith and healthymemory.wordpress.com, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Douglas Griffith and healthymemory.wordpress.com with appropriate and specific direction to the original content.

Cognitive Misers and Democracy

February 17, 2016

Cognitive misers are people who do not like to exert the effort involved in thinking.   In addition to entering “cognitive misers” into the healtymemory search block, you can also enter “System 1” or “Kahneman.”  Cognitive misers like to believe in things because questioning beliefs or principles or learning new things involves cognitive effort and thinking.

A short while back I read a poll that I found extremely discouraging.  The question asked what was more important to voters, a politician’s willingness to compromise or to  principles.
Here is a breakdown of the responses by political party.  Note that they do not add up to 100% as some respondents refused to answer.

Group                   Principles        Willing to Compromise
All Voters             40%                  50%
Republicans        54%                   36%
Independents     40%                  47%
Democrats           23%                  68%

I guess that the good news is that with the exception of one group, the remaining groups a larger percentage indicated a Willingness to Compromise.  In only one group did this percentage reach 50% and only one other group indicated a slightly greater than a two to one preference.  If the results are representative, then I argue that these beliefs present a far greater existential threat to the Democracy in the United States than does ISIS.

Before addressing cognitive miserliness per se, let me remind readers what a democracy is supposed to be..  A democracy is a system in which people vote for candidates and the candidates try to vote for what they think are the correct policies, but negotiate when the need to get the most palatable policy that they can accept.  There will be times when the vote goes against them, but they accept the result.  They do not threaten to shut down the government or actually shut down the government.  As you know this has already happened at least twice.

It is unfortunate that “politician” has negative connotations.  Using “politician” in a pejorative sense, “he’s a politician,” or he is doing this for “political reasons” is both unfair and wrong.  The first requirement of a politician is to make the political system work.  Sometimes that might correspond to political beliefs, sometimes it will not.  But beliefs or principals should not be the driving factor.

The advancement of mankind has been in direct proportion to the advancement of science.  Key to science is thinking.  Cognitive miserliness is anathema to effective science.  Whatever beliefs science has are beliefs that are subject to change.  It that is not the case, then the enterprise is not science.  There have been enormous changes in science during my lifetime.  There is not a single subject matter that has not changed.  Until fairly recently science believed that humans could not generate new neurons.  In other words there was no such think as neurogenesis.  Had I argued to the contrary as a graduate student I would have quickly been booted out of graduate school.  It was not until close to the end of the 20th century that neurogenesis was accepted and the notion of neuroplasticity  was advanced.

I become particularly annoyed when I hear reporters accuse politicians of flip flopping.  It seems like this is the stock in trade for many reporters.  This reminds me of the response the eminent economist John Maynard Keynes gave when he was accused of a statement that was in conflict with previous comments.  He responded,”when the facts change, I change my mind.  What do you do, sir.”  An argument can be made that opinions are not being changed by facts, but by political considerations.  Here I would refer you to the remedial exposition on democracy I offered above.

I also argue that cognitive miserliness is a problem for the Supreme Court of the United States.  There are two views of the Constitution.  One is that it is supposed to be a dynamic document that has been written that is expected to change with the times.  The other, originalism, is that the Constitution needs to be interpreted in terms of what the authors intended.  We need to remember that when the Constitution was written, slavery existed, black people were counted as three-fifths of a human being, and women could not vote.  It should also be remembered that one of the most advanced scientists of the time, Benjamin Franklin, did not know what current high school physics students know.  Moreover, I am virtually certain that if the framers of the constitution knew what we do today, they would have written a different constitution.  I am upset when the Supreme Court Justice who recently passed away is described as having a brilliant mind.  He was an originalist.  He believed that what the framers of the constitution believed at that time should provide the basis of judicial decisions.  I regard such individuals as intellectual runts.

The results of cognitive miserliness are readily apparent in the United States.  Realize that the United States is the only advanced country that does not have a system of national health insurance.  What we do have is the country with the most expensive medical costs with results comparable to third world countries.  We are the only advanced country that has no control over the cost of prescription medications.  And we are the only country that has a major political party that refuses to believe in global warming.  We also have a major TV network that insists on always having a denier of global warming on a show where a scientist is presenting data bearing on global warming and its ramifications.  This is in spite of the fact that this is a small minority of scientists, some of whom are paid scientific guns to counter the overwhelming evidence.

The reason that is often presented is one of American Exceptionalism.  This exceptionalism is a product of cognitive miserliness.

© Douglas Griffith and healthymemory.wordpress.com, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Douglas Griffith and healthymemory.wordpress.com with appropriate and specific direction to the original content.

The Law and Psychological Science

January 6, 2013

Should I ever be charged with a crime, I shall not be one of those people who say that they will be proven innocence because they have faith in the legal system. Rather I’ll be saying that although I am innocent, I have no faith that I shall be exonerated. In my view there is little in common between the concept of justice and the legal system. At least in the United States, each individual gets the amount of justice that individual can afford. Say I am charged with a crime, and I am innocent. Going with a public defender would most likely increase the probability of either a conviction or some plea bargain to a lesser sentence. If I want to reduce my chances of being wrongfully convicted, I will pay for the best judicial defense I can afford. If I am exonerated, there is a good chance that I have gone into bankruptcy. So, even in that case, can we say that justice has prevailed?

I am annoyed by the instructions the judge provides to the jurors in criminal cases. In a criminal case it is usually to be convinced beyond a reasonable doubt, or some variant thereof. Now what does that mean? There needs to be some trade-off here. How many innocent people would we be willing to convict to prevent a guilty person from going free? Is it one in one hundred? One in twenty? One in ten? One in five? The instructions need to be more specific.

Here are some statistics from an article in Scientific American Mind.1 412 is the number of people exonerated in the U.S. After being implicated by mistaken witness testimony as of September 2012. 137 is the number of people exonerated in the U.S. after being implicated by false confessions as of September 2012. All too frequently we read about prisoners being released from prison on the basis of DNA evidence. Often this occurs after they have spent many years in prison.

What is infuriating is that even when there is compelling evidence, such as DNA evidence, that someone has been wrongfully imprisoned, the so-called justice system is reluctant to release the individual. This supports the idea that lawyers, both defenders and prosecutors, are not interested in justice; they are interested winning.

So what does psychological science have to offer the legal system if it does want to pursue justice? Psychological science studies how we perceive, think, solve problems, make decisions, how we process information and how our memories work. I think the relevance should be obvious here. We know that we have two systems for processing information: System One which is fast and does the initial processing of information. System Two is slow and deliberative, and has the responsibility for checking the accuracy of System One output. Our default when we encounter new information, absent cues to the contrary is to believe it. If it is wrong, the hope is that it will eventually be corrected by System Two. So when judges inform jurors that they are to disregard something said or introduced in court, research has shown that it is unlikely to be disregarded just because the judge said so. Research has indicated that a short and to the point explanation as to why the information should be ignored is effective (See the healthymemory blog post, “Solutions and Good Practices for Misinformation”).

Extensive research has been done showing that eyewitness testimony is highly unreliable, yet courts and jurors have historically weighted it highly. Although it is true that recognition is worse for people of differing ethnic or racial groups, it remains unreliable even within the same group. The Innocence Project, a national organization focused on correcting wrongful convictions through DNA testing and judicial reform, has freed 301 individuals on the basis of DNA testing. In about 75% of these cases, a principal cause of the erroneous guilty verdict was faulty eyewitness testimony. In about 35% of these cases the testimony stemmed from two or more incorrect observers. This demonstrates that consistency should not be confused with correctness. That is, reliability is not necessarily validity. The method for doing facial recognition is extremely important. Rather than present pictures together in groups, they should be presented individually. Moreover, there should be no guarantee or suggestion that the guilty party is one of the photographs shown. And the officers, themselves, should be blind regarding the identity of the suspect. The same procedure applies to line-ups, that they should be done individually with no guarantee or suggestion that the suspect is there.

One study indicated that 63 percent of the respondents believe that “memory works like a video camera.” Research has shown that nothing could be further from the truth. Memory is fallible and is easily influenced by suggestions and contexts. Moreover, each time we recall information, there are changes. Questioning by investigators, even if not intended, can lead to faulty recall and erroneous convictions. The cognitive interview is a procedure that has been developed by psychologists that might lead to more accurate eyewitness testimony. It relies on techniques derived from scientifically supported principles of memory. It asks open-ended rather than suggestive question. It reminds witnesses of the context of the crime and offers them reminders of the crime, and discourages them from guessing.

Confessions should not be regarded as conclusive. There were 200 people who confessed to the kidnapping of Charles Lindbergh‘s baby. The Innocence Project found that up to 27% of individuals initially found guilty but later cleared by DNA evidence had confessed in spite of their clean hands.

This indicates that the videotaping of interrogations is essential. It is also important to videotape the interrogators as well as the suspect.

Psychologists are also skilled in designing experiments and research projects to minimize bias. Correct sampling procedures are essential. This is true for juries. It is not surprising that mixed -race juries are fairer to black defendants. It also appears that diversity improves the accuracy and critical thinking of jurors. Perhaps you do not need training in psychology to know realize this. It would appear to be a matter of common sense. The legal system has been slow to realize this.

In the United States, the Supreme Court sits atop the legal system. There are different approaches to interpreting the Constitution of the United States. There is a progressive view that the Constitution is to be viewed as a living document, and is to be interpreted in the view of new knowledge. The competing view is the Strict Constructionist view. According to this view the Constitution is to be viewed as the original writers intended. Remember that at the time the Constitution was written, slavery was legal and thrived in the southern states. Black people were regarded as being three-fifths of a human being. Women could not vote. At that time Benjamin Franklin was one of the most knowledgeable scientists in the world. Today a high school science student knows much more science than Benjamin Franklin ever did. Currently five of the nine justices on the Supreme Court are regarded as strict constructionists. This might account for some of their decisions and for some of the difficulties the United States currently finds itself.

1Lilienfeld, S.O., & Byron, R. (2013). Your Brain on Trial, Scientific American Mind, January/February, p.7 & pp.44-53.

© Douglas Griffith and healthymemory.wordpress.com, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Douglas Griffith and healthymemory.wordpress.com with appropriate and specific direction to the original content.