HM does not know if Nobel Winning psychologist Daniel Kahneman had any opinion on the judicial philosophy of originalism, which states that judicial opinions should rely substantially on the text of the statute or constitutional clause under construction as well as the original public meaning of the statue or clause.
What Daniel Kahneman did was to develop his two process theory of cognition. This theory can be found in many places, but perhaps the best source is his best selling book, “Thinking Fast and Slow.” System 1 is fast and allows us to cope with high rates of information in a dynamic environment. Without System 1, we would not have survived as a species. But this fast processing speed has its costs, which sometimes lead to errors. System 2 is slow, and is what can be thought of as thinking. If you know your multiplication tables, if I ask you what is 6 time 7, you’ll respond 42 without really thinking about it. But if I ask you to multiply 67 times 42 you would find it difficult to compute in your head, and would most likely use a calculator or use paper and pencil (which are examples of transactive memory). This multiplication requires System 2 processing without technological aids.
System 1 requires little or no effort. System 2 requires effort. It is not only faster, but also less demanding to rely on System 1 processes. Consider the following question.
A bat and a ball cost $1.10
The bat costs $1.00 more than the ball.
How much does the ball cost?
The number that quickly comes to mind is 10 cents. But if you take the time and exert the mental effort you will note that the cost would be $1.20 (10 cents for the ball and $1.10 for the bat). If you do the math, which takes a little algebra, you will find that the ball costs 5 cents (the bat costing a $1.00 more than the ball would be $1.05 and $1.05 plus $0.05 is $1.10). System 2 must be engaged to get the correct answer. This question has been asked of several thousand college students. More that 50% of the students at Harvard, MIT, and Princeton gave the wrong, System 1, answer. At less selective universities more than 80% of the students gave the wrong answer.
Now consider the judicial philosophy of originalism, which states that judicial opinions should rely substantially on the text of the statute or Constitutional clause under Construction as well as the original public meaning of the statute or clause. What could possibly be wrong here? These are the Founding Fathers who wrote the constitution. These are the conclusions which System 1 processing quickly reach.
Now invoke System 2 processing and consider the following.
The fundamental premise of the Constitution is that all men are created equal. Note that the mention of women was omitted and women needed a special constitutional amendment to be granted the right to vote. So it appears that the Founding Fathers were misogynistic.
According to the Constitution blacks were regarded as three-fifths of a human being, and the vast majority of blacks were slaves. So it appears that the Founding Fathers were blatant racists.
Fortunately, the Constitution was eventually amended to correct for these errors. One can infer that these changes were the result of System 2 processing and not strict adherence to originalism.
Knowledge grows and the world changes radically. Today a high school science student knows more about science that Benjamin Franklin ever did.
It is clear that the legal system needs to evolve to accommodate the rapidly changing world, and to remove injustices from older thinking.
Originalism is invoked by people who do not want change; fortunately, or unfortunately, change is needed.
© Douglas Griffith and healthymemory.wordpress.com, 2018. 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.