Over the weekend, I had a piece at Ars Technica urging Google to roll out end-to-end encryption for Gmail, allowing hundreds of millions of ordinary users to enjoy the level of privacy now largely reserved for paranoid ubergeeks. I tried to address some of the obvious economic reasons Google might be hesitant to do this, but as Princeton’s Ed Felten points out, there are important technical questions as well:

First, how would the crypto keys and crypto code be managed? […] To start with, we would need a place to store your private key. We could store it on your desktop, but this would conflict with the usual cloud model that gives you access from multiple devices. We could have Google store your private key for you, then download it to whatever device you’re using at the moment, but then what’s the point of encrypting your messages against Google? The best solution is to have Google store your private key, but encrypt your private key using a password that only you know. Then Google would download your encrypted private key to your device, you would enter your password, and the private key would be decrypted on the device.

This is pretty much how I’d imagined it working for the average user, but there’s no real reason we need a one-size-fits-all solution here; lots of cloud services that offer encryption let the user choose whether or not to let the provider keep a backup copy of the user’s keys. The more paranoid could sacrifice some mobility and convenience—and risk losing access to some of their messages if their local copies of the key are destroyed—by opting not to let Google keep even an encrypted copy of their key. Or, as a middle ground, a user could always store an encrypted backup copy of her key with a different cloud provider, like Dropbox, which need not even be known to Google. That provides all of the advantages of storing the key with Google at a relatively minor cost in added hassle, but substantially raises costs for any attacker, who now must not only crack the passphrase protecting the key, but figure out where in the cloud that key is located. Assuming it’s accessed relatively infrequently (most of us read our e-mail on the same handful of devices most of the time) even a governmental attacker with subpoena power and access to IP logs is likely to be stymied, especially if the user is also employing traffic-masking tools like Tor

The next problem we would have to solve is how to do cryptography in the browser. A service like GMail has to run on lots of different devices with differently abled browsers. Presumably the cryptographic operations–including time-consuming public-key crypto operations–would have to be done in the browser, using the browser’s Javascript engine, which will be slow. It would be nice if there were a standardized API for in-browser crypto, but that doesn’t exist yet, and even when it does exist it will take a long time to be deployed so widely that a public service like GMail can rely in it being present on all devices.

What is most problematic is that the software code to do all of this–to manage your keys, decrypt messages, and so on–would itself be written and delivered by Google, which means that Google would, after all, have the ability to see your messages, simply by sending you code that silently uploaded your keys and/or data. So if your goal is to make it impossible for Google to see your messages, for the protection of you and/or Google, then you won’t have achieved that goal. […] The only solution we know is to acquire the secure functionality by a traditional download, incorporating carefully vetted code that cannot be modified or updated without user control. The code might be provided as a standalone app, or as a browser extension. We could do that for GMail (and at least one company has done it), but that would give up some of the portability that makes the cloud email attractive.

I think the speed issue is probably not that big a deal on newish devices, and will only become less of an issue, but for some of the other reasons Ed cites, the preferable way to do this is with dedicated client software. This does create some sacrifice in terms of portability, but frankly if you’re really concerned about secure communications you probably don’t want to be decrypting your sensitive messages on untrusted devices anyway. Also, as I note in the piece, this is where Google has an advantage as the distributor of a widely-used open source operating system and browser. The relevant functionality could come bundled with Chrome and/or Android (and serve as a selling point for both) as well as being offered as a separate plugin for other browsers (or bundled with Google’s widely-installed voice/video chat plugin). Users could still, of course, access their unencrypted webmail from any old browser, but one imagines that if Google leads the way, other developers will have a strong incentive to make their own software compatible.

The second major issue is how to keep messages secret while still providing GMail features that rely on Google seeing your messages. These features include spam filtering (which you couldn’t live without) and the content-based ads that Google shows next to your messages (which Google probably wouldn’t want to live without). Can these be provided without leaking the full content of messages to Google? I suspect the answer is a qualified yes–that pretty good versions of these features could be provided in a more privacy-friendly way–but that’s a topic for another day.

Add to these issues that encrypted messages won’t be searchable (unless stored locally as plaintext), which is a bit of an inconvenience, but probably not a dealbreaker. You can probably still do a good deal of spam filtering just using metadata, and it helps that most users will generally be trading encrypted messages with friends and contacts. Users might even elect to only get such messages from “buddies,” whitelisted addresses, or (more permissively) other Gmail users, which would make encrypted e-mail within the service a little bit more akin to Facebook or Gchat messaging. At least initially, it probably makes sense to have this be the default, and users who really need to get encrypted messages from random, unapproved senders they’ve never interacted with before can tweak their settings to let those messages through.

As for content ads, well, that’s the million dollar question—and as Vint Cerf has candidly acknowledged, a primary reason Google hasn’t already done this. My answer here is the same as it was in the article: First, most people are still going to exchange a lot of unencrypted messages, and Google can still serve keyword ads based on those. Second, Google recently revised its policies to allow sharing of user information between its disparate services, provoking some grumbles from privacy folks. That means they’ve got a hell of a lot of other data to draw on in determining what ads are likely to be relevant to a particular e-mail user, from search history to favorite YouTubes, which I’d actually expect to be substantially more useful for tailoring ads than e-mail keywords. Also, at least initially, using the encryption feature will probably mean logging directly into your Google account via their Web interface (where Google gets to show you ads) rather than simply reading your messages in an ordinary mail client (where they don’t). So the loss of one kind of targeting data from some messages has to be balanced against the probable increase in ad exposures. It’s up to Google’s accountants to figure out how that all nets out, but these considerations seem like a good prima facie reason to at least run the numbers if they haven’t done it recently.

I’ll confess, while not particularly invested in the outcome of the presidential race, I shared the amusement of my Democratic friends watching staunch conservative pundits doing their best impression of the former Iraqi information minister in the weeks before the election. We saw a string of prominent conservatives confidently projecting landslide victories for Mitt Romney, and waving aside all the (as we now know, highly accurate) statistical models projecting a solid Obama win on the grounds that “all the vibrations are right” for Republicans. That said, given the role that partisan pundits play, I can’t really say they were wrong to do so. Indeed, the next time the best available models project a clear Republican win, their Democratic counterparts would probably be wise to do at least a little bit of the same thing, and gin up reasons (however spurious) to think the polls got it wrong this time.

Ideally, professional pollsters have no particular agenda beyond accurately forecasting the outcome of a race. But pundits are trying to influence outcomes, and forecasts don’t just predict outcomes, but at least partially help to determine them. There’s plenty of social psychology literature showing bandwagon effects in elections: Voters on the fence often pick the candidate they expect to triumph anyway, because it’s nice to be on the winning side. Campaign workers become demoralized if they think they’re laboring those long hours for a hopeless cause. A 20 percent chance of victory is still a chance, after all, and you don’t want people throwing in the towel prematurely. Here as in many areas of life, when the odds are heavily against you, being a perfectly accurate assessor of your chances can actually make the odds worse. If you are rational, you will want to have some irrational beliefs. So I don’t expect supporters of a candidate who’s unlikely to win on election eve to acknowledge this, any more than I expect the coach of an underdog team to deliver out an honest read of the stats as a pre-game pep talk. We don’t make fun of coaches for this, because we all understand they’re engaged in a bit of socially appropriate bullshitting.

Which is all well and good when it’s just the pep talk—especially on election eve, when it’s too late to alter a losing strategy. The danger, of course, comes when the coaches start believing their own pep-talks—or as Chris Hayes (channeling Biggie) puts it, when you’re actually so high on your own supply that you start rejecting negative information generally, even when adaptation is still an option. One contributor to this is surely the epistemic bubble created by an increasingly complex, interconnected, and self-sufficient conservative media ecosystem. But there are other factors that probably increase the tendency too.

Pundits are most often, at least initially, writers—which is to say, storytellers. So when polls were less frequent, less accurate, and less widely disseminated, it wasn’t much trouble to weave a story about how polling that looks bad for your team has failed to capture some ineffable factor (“the soul… is not so easily number-crunched“) or was conducted too early to account for some supposedly game-changing news story like Benghazi. A compelling storyteller might even feel free to ignore the polls altogether.

Now, though, we’ve got a larger array of polls, as well as increasingly sophisticated tools for aggregating and weighting them in statistical models that can also factor in external data about things like economic performance. Our predictive tools are better, and our media environment guarantees that the outcomes they project will get wide circulation well in advance of the election. A decade ago, it would have seemed bizarre for a statistician to be one of the most controversial and high-profile figures of a presidential campaign, partly because nobody would have found it plausible that race polling roughly even nationally could be called for one candidate at a high degree of confidence weeks in advance. Even if it could, a political media dominated by a few networks and major papers would have found it convenient to give those projections less attention and play up the sexier “dead heat” narrative. Players’ morale aside, nobody much wants to watch a game whose winner is a foregone conclusion either. Ignoring and slapdash storytelling aren’t really viable options anymore.

The thing about pep-talks, especially when you’re not hearing them live from a charismatic speaker in a small room full of comrades, is that they don’t work nearly as well if they’re obviously just pep talks. It is rational to have some irrational beliefs, but it’s more or less definitive of belief that you can’t consciously recognize it as irrational while you hold it. So in an age of modeling, a little offhand bullshit no longer cuts it: Now you need elaborate counter-models, a-la UnskewedPolls, or at least some more facially compelling argument for why all the models are systematically biased and untrustworthy. What was once the self-contained rational irrationality of a few election eve beliefs metastasizes and builds its own supporting superstructure, in much the same way as one lie can give rise to a whole elaborate network of lies designed to cover it. Or, for the logicians, the way the principle of explosion dictates that a set of propositions containing a single contradiction can spawn an infinity of falsehoods. At some point, the cost of this cognitive infection becomes too high, and a bit of rational irrationality becomes plain old irrational. The belief system you have to sustain to maintain your election-day optimism becomes an obstacle to strategic adaptation that might actually justify that optimism.

A resounding electoral defeat focuses the mind wonderfully, though, and while no doubt we’ll see the most thoroughly embubbled floating dark speculations of some massive conspiracy to rig the election, conservatives who don’t like losing are probably going to get a lot less dismissive of statistical modeling pretty quickly. Mocking the scientists is all fun and games when it’s abstract evolutionary theory, but most people don’t want to refuse lifesaving biotechnology. They may also become somewhat more skeptical of large swaths of the conservative media ecosystem whose primary function is not, in fact, to achieve electoral victories, but to attract eyeballs and extract revenue from conservative audiences. Those goals aren’t necessarily complementary: Ideological publications often do better when the other side is on the ascendant.

In the longer term—notwithstanding the massive and massively daunting security and anonymity challenges it poses—the real solution to this tension (and the ludicrous lines at polling places around the country) is an Internet voting system that lets every citizen with a modern phone—or just access to a public library—cast (and change) their ballot anytime between the conventions and “election day” as easily as they’d update a Facebook status or Instagram a kitten. The results probably become obvious a lot quicker—with a bit of volatility as groups voters decide they can individually afford a third-party protest vote, then realize that collectively they can’t—but the cost of action falls so low that morale concerns are far less significant. And on election night, my journalist friends can all begin drinking much earlier.

Yglesias takes aim at a familiar genre of argument for voting for a third party:

I’ve noticed that various anti-Obama pro-third-party arguments on the Internet proceed with an annoying two step. Usually the headline and the lede of the piece will be very focused on Obama, the evils of Obama, and the braindeadness of the Obamabots but then the argument will employ as a lemma something like it doesn’t matter who you vote for because your vote won’t make a difference anyway. I think that math is more contestable than people often realize but whatever you make of it, if your argument is that it doesn’t matter who you vote for then that’s an argument about voting not an argument about Obama. If it’s true that you shouldn’t feel constrained to choose a major party candidate on the grounds that your vote won’t swing the outcome anyway, then the exact same conclusion would hold even if Obama had cracked down on banks much harder or never bombed a soul or delivered single payer health care or whatever you like. The argument may be correct, but it’s an argument about an entirely different subject.

I also think that as an argument written for public consumption on a well-traffic blog or website (as opposed to simply offered over drinks at the bar) it’s an illegitimate form of argument.

“Why I’m Voting For Jill Stein” or “Why I’m Voting For Gary Johnson” is, qua article, an effort to persuade other people to do the same thing. A persuasive argument that takes as one of its premises its own failure to persuade is inherently problematic.

I don’t think this works. Consider the type of thought experiment you sometimes encounter in ethics: There are two groups of people in danger: Group A consists of 100 people who will die unless a rescue effort involving at least five rescuers is mounted, while Group B consists of 10 people in the same situation. Each potential rescuer can only join one effort. If you think you’re likely to be the marginal fifth rescuer, or are advising that person on what to do, then it seems pretty clear that (other things equal) you ought to join the mission to rescue Group A and advise others to do the same. (To make this more precisely analogous to voting, we should probably make the required mission sizes large enough that any individual is highly unlikely to make the marginal difference between success and failure, and also assume that we want people to engage in some degree of moral generalization lest everyone stay home. But let’s start simple.)

If everyone were certain to follow the rule of action you stipulated for this case, and there were no coordination or information about what others were doing, you’d similarly select the rule that says you should try to help Group A. However—and this is where the crudest form of a Kantian universalization test breaks down—it also makes sense to factor in what others are realistically doing, because ideally you’d like to see both objectives accomplished, and 110 people saved rather than just 100. If, for example, you see many dozens of people already mobilizing to save Group A, while only one or two are headed for Group B, what you ought morally to do is (again, I think pretty clearly) join the mission to save Group B and call for others to do likewise, provided that it is sufficiently improbable that you will persuade so many people that the initially oversubscribed mission to save Group A now fails.

Now, it’s true that this argument would have to “take as one of its premises its own failure to persuade.” If you knew that everyone would follow your advice—and there were no way to reliably coordinate the numbers in advance—then you would have to call for everyone to help Group A, sadly resulting in the death of the 10 who might otherwise have been saved. (Well, what you’d really do for a sufficiently large group is tell everyone to roll a die and join the B mission iff they roll a 6, and otherwise join the A mission, but again, let’s bracket that for the sake of simplicity.) This would be a highly unfortunate outcome!

Yet in the real world, we can often predict with great confidence that we will not persuade literally everyone to follow our course of action. It may, rather, be highly probable that we will persuade enough to make the mission to rescue Group B successful without any realistic risk of drawing off so many people that the effort to rescue Group A now fails. To be sure, in this case, the argument for publicly advocating that people join the B mission does take as one of its own premises the assumption that this advocacy will not be perfectly persuasive. But if that premise is true, and known at a very high level of certainty to be true, then this is not actually “problematic”: It is what allows all 110 people to be saved instead of only 100! Now, obviously, if you’ve calculated your probabilities wrong, you can imagine such a choice backfiring badly, but in the real world every aspect of the decision process (including the projected consequences of mounting each mission) is ultimately probabilistic, and you’ve got to make the choice you think will do the most good given the information available. So we can quibble about the numbers, but there are surely probability ranges in which it’s clear that what you morally ought to do is advocate that people join the B mission, or to heed that call given your knowledge about what others are likely to do.

Now add back in the consideration we left out for simplicity’s sake at the start. Suppose there are enough public spirited people around that even if you don’t join either mission, it’s almost certain that enough others will to make either mission succeed. In this case, you need not stir yourself at all to achieve the desired outcome—though this is only the case because most others don’t reason in this way. Most of us, I will assume, think that a decent person will often (though perhaps not in every instance) resist this apathetic logic as a kind of moral free riding that depends on others behaving differently. But it does not follow at all that, having accepted a duty not to engage in such free-riding, we must all collectively commit to ignoring considerations of marginal benefit entirely, so that Group B is always allowed to die. If you’re at all tempted to endorse this perverse scenario, it’s a good sign something has gone badly wrong with your moral reasoning.

The analogy to the voting situation should be obvious, but just to spell it out: Let’s assume there’s a pool of writers and voters whose first priority—call it Objective A—is that the major party candidate they regard as least bad wins. Because their less-bad candidate is still quite bad on a number of issues, however, they would also like to achieve Objective B: An unexpectedly strong electoral showing for a third-party candidate (perhaps their first preference in an ideal world, but with no realistic chance of victory) who is a vocal critic of the less-bad candidate on these very issues, and whose success at the polls may help focus attention on those issues, and minimize the impression of an overwhelming mandate for the victorious less-bad candidate. Here, again, we can quibble about the relevant numbers and probability ranges, but it seems pretty clear that there are highly plausible fact patterns under which, given well-founded beliefs about what others are likely to do, what one ought to do in order to achieve both objectives is advocate (or cast) a third-party vote.

Moreover, Yglesias glosses over the extent to which the argument for an Obama or Romney vote also depends on the very considerations he thinks are irrelevant when deployed to support a third-party vote. What, after all, is the argument for choosing between Romney and Obama if you actually believe Johnson or Stein would make the best president? Obviously it’s that your first choice can’t actually win, given what we know about how other people are likely to vote—which is just another way of saying that your individual vote (or, for a writer, the pool of people whose votes you’re likely to be able to influence) will not make the difference between victory and defeat for your most preferred candidate. The writer who’d actually prefer Stein or Johnson but makes the case for holding your nose and casting a pragmatic vote for the “lesser evil” major party candidate is also taking as a key premise the imperfect persuasiveness of his own argument—otherwise he’d be arguing for his first preference—but Yglesias clearly doesn’t find reliance on this premise “problematic” in such cases.

Against this background, perhaps we can say something about the link between the two types of arguments Yglesias identifies, and why they’re not really about “entirely different subjects.” Implicit in the case Yglesias makes is the notion that the “your vote won’t make the difference” argument is really an argument against voting at all, and that someone who’s prepared to cast a ballot for some candidate or another must already be prepared to reject that argument. So let’s consider some grounds on which people might do so.

One possible rationale is utilitarian: Even if the probability of casting a decisive vote is vanishingly tiny, it is not zero, and so has to be multiplied by the difference in social welfare that would accrue if it were decisive in order to yield an expected social value for the action. I won’t say much about this argument, mostly because I doubt that it’s what actually motivates anyone but Derek Parfit.

Another potential rationale is that people see voting as having expressive and symbolic value even when they’re sure it won’t be decisive. People with opposing political views, who know their votes will simply cancel each other out, could just make a friendly agreement to both stay home and save themselves the time and trouble—which would take care of the probabilistic utilitarian argument—but very few people actually do this, suggesting that most voters see a value to the act of voting beyond any possible effect on the outcome. Yet surely the symbolic and expressive value of voting depends in part on our not thinking of it as purely symbolic, but as a constituent of the process by which we together really do determine our shared political fate.

That brings us to what we might call the “folk Kantian” line of reasoning—also known as “what if everyone did that?”—which undergirds a lot of common-sense morality: Yes, it might not ultimately make a difference whether I individually vote (or litter, or keep a vegetarian diet), but if everyone reasoned that way, the system would fail to all our detriment. So we internalize a kind of moralized collective rationality: We each act in the way that it would be morally best for all rather than none of us who are relevantly similarly situated to act, even if it would be no worse morally (and perhaps even somewhat better individually) for some subset of us to defect.

The trick, of course—and one of the notorious difficulties in applying Kant’s test of universalizability—is figuring out who are the members of the “relevantly similarly situated” group following a rule of action at a given level of specificity. As the Rescue hypothetical (and common sense) shows, we often don’t want every member of humanity, or even a particular society, doing literally the same action, but rather to act according to a rule they’d want generalized across some relevant social subgroup. Yglesias, for example, doesn’t want people with the preference ordering {(1) Johnson, (2) Obama, (3) Romney} to vote in the way they’d will all Americans to vote, but rather to take into account the certainty that most Americans won’t vote that way, and instead act in the way they wish the subset who prefer Obama to Romney would vote given that the very large subgroup who prefer Romney to Obama will be doing the same.

This, I think, is the link Yglesias is missing between the “problems with Obama” thread of the argument and the “won’t be decisive” thread, which doesn’t just apply individually, but at least in certain states also collectively, to the subgroup who might be motivated to cast a protest vote in light of their strong reservations about Obama. It’s true that if someone accepts the “won’t be decisive’ thread as dispositive at the individual level, that’s an argument about voting as such. But the “problems with Obama” argument is actually doing double duty here: Yes, it’s an argument for why the reader should not want to signal unqualified support for Obama, should want dissenting voices to do well at the polls, and so on. But it’s also an attempt to construct an imagined community over which individuals generalize when they decide on a rule of action: The social subgroup of people for whom these concerns are especially salient, whose collective votes (unlike an individual vote) might well have significant signalling value without altering the outcome of the two-party contest. Yglesias can challenge the empirical, mathematical premises of this argument if he wants—and he does that too, in passing—but he can’t reject it as formally incoherent without implicitly indicting the case for a major-party vote in the same breath.

Addendum: Henry Farrell reminds me that Daniel “D-Squared” Davies, in a 2010 Crooked Timber post, made essentially the same point about the tension between folk-Kantian and instrumentalist arguments for casting a major-party ballot.

I was a bit taken aback on Wednesday to read a piece by a Kate Sheppard in Mother Jones—a smart climate reporter for a smart progressive magazine–trying to gin up the kind of phony controversy I would have thought beneath either the author or the outlet. The story focuses on a draft of a report prepared by some of my Cato Institute colleagues, which attempts to rebut the findings of a 2009 study by the U.S. Global Change Research Program titled “Global Climate Change Impacts in the United States.” It’s an example of the type of “shadow report” that NGOs of all sorts often issue when they want to highlight perceived flaws in official governmental reports. As you can see from the image here, the cover (as well as the layout of the report itself) deliberately mimics the original—with the subtle but significant difference that that the ominous graph projecting sharp temperature spikes in the original is replaced by one depicting the far milder fluctuations that the Cato authors believe are likely.

Sheppard concludes that this makes the Cato report a “rip off,” and quotes various critics—including some of the authors of the original, official report—calling it “a counterfeit” and “deceptive and misleading” even before its release. The implication is that Cato is trying to perpetrate some kind of sinister hoax.  I’m not entirely sure why Sheppard thinks this is so outrageous, given her sympathetic coverage of “pranks” by groups like the Yes Men, which unambiguously do try to deceive people with counterfeit reports and press conferences, but let’s stipulate that such stuff should indeed be frowned upon in most cases.

What’s really odd is that Sheppard seems so enthusiastic to run with this “hoax” narrative—without bothering to ask anyone at Cato for comment, as far as I can tell from the article—that she doesn’t stop to consider how little sense it makes. The cover of the report says “Cato Institute.” Every other page of the report says “The Cato Institute” at the top. The introduction makes it perfectly clear that this is a Cato publication in which Cato scholars critique the conclusions of a government report. And the whole text of the report is a sustained criticism of the USGCRP and its study—so it would be pretty weird for anyone reading to think it was written by the USGCRP. Sure, you could imagine someone mistaking a hard copy for an official follow-up at first glance, and then doing a double-take as they look more closely—and I assume that’s an intentional attention-grabbing gimmick. But I can’t see how anyone could labor under that misapprehension once they actually picked it up and started reading. And if you don’t actually pick it up and read it, you don’t get the content, so it’s not clear what the point of that would be.

Moreover, since I rather doubt this one will show up in a lot of supermarket checkout lines, almost everyone who reads it will either be a Hill staffer, writer, or bureaucrat who gets mailed a hard copy by the Cato Institute, in an envelope that says “Cato Institute,” or will be reading it on Cato’s own website. And those readers are going to be the sort of folks who are disposed to read a 200-page, heavily footnoted response to another long and copiously footnoted study: This is aimed at a pretty wonky audience. So Sheppard’s theory, as I understand it, is that this is designed to bamboozle people so steeped in this issue that not only are they interested in reading it but also get the visual reference to the government’s 2009 report, yet who don’t realize that the Cato Institute is not part of the federal government. Are the circles in that Venn Diagram even on the same page?  Who would this actually be looking to fool, and what would the benefit even be? Like, if some sloppy journalist somehow did mistakenly run with a story on this as though it were a government report (and real papers sometimes pick up Onion stories, so I guess it’s not beyond the realm of possibility), wouldn’t they just be angry at Cato when they realized the mistake and had to issue a correction?  This is the most inept hoax ever!

Well, either that or it’s a totally commonplace “mimic the thing you’re critiquing” design gimmick we see all the time, usually without resorting to convoluted theories about vague but sinister deceptive intent. Just to pick a couple examples that come readily to mind: The editors of The Nation did it a little while back when they released a book of essays on Sarah Palin that aped the cover (and mocked the title) of her memoir Going Rogue. Adbusters does the same thing, with an annual “Big Ideas” issue styled after The Economist’s year-end roundup. Conservative Bernard Goldberg’s 100 People Who are Screwing Up America (and Al Franken is #37) quickly provoked a book-length response with a very similar cover: 101 People Who Are Really Screwing America (and Bernard Goldberg is only #73). In those cases you could even imagine a few  harried consumers mistakenly buying the wrong product (fortunately not an issue with think tank reports). But nobody thinks these—or the dozens of other examples you could probably come up with—are nefarious attempt to con people; we just think they’re smirking visual references.

So why do Sheppard and several of her sources immediately leap to the most strained, least plausible reading of the Cato report’s mimicry, or feel any obligation to check what the author or designer have to say about it? As far as I can tell, it’s because they view the contents of the report as scientifically unsound, and so substantively deceptive, which makes it tempting to project some kind of deceptive intent on the design as well, whether or not that really makes any sense on reflection. Or, more broadly: They know Cato’s evil, so they know some malicious goal must explain everything Cato does, even when there’s an obvious and much more parsimonious alternative. This turns into a self-magnifying feedback loop: My opponent is evil, therefore all actions are to be interpreted as serving evil ends by default (ignoring all alternative interpretations),  which generates a whole lot of data points confirming the original hypothesis that my opponent is evil.

Now, to the limited extent I have concrete views on this issue, they’re actually probably closer to Sheppard’s than to those of my colleagues, but I’m confident that everyone concerned genuinely believes the position they’re taking. And even if Sheppard doesn’t believe that, it seems like the thing to do is still to cut to the chase and explain what she thinks is wrong with the contents. In this case, it looks like a principle of interpretive anti-charity motivated a weird hunt for a sinister motive behind an otherwise unremarkable design choice. Which is good for clicks, I guess, but not a very useful way to have a conversation or form accurate beliefs.

Update: Since commenters keep mentioning this, let me say it clearly one more time: Yes, I absolutely concede that if you just look at the cover, you could easily mistake it for an official follow-up report. And while I haven’t talked to the art director, yes, I assume that’s at least partly a deliberate attempt to snag the initial attention of people who might not otherwise pick it up. Is that kind of a cheap marketing gimmick? Sure. But it’s not the same as trying to deceive people who do pick it up about the nature or origins of the contents—which, on top of being grossly immoral, would be an insane act of reputational suicide for no possible benefit.

American politics sometimes seems like a contest to see which group of partisans can take greater umbrage at the most recent outrageous remark from a member of the opposing tribe.  As a mild countermeasure, I offer a modest proposal for American universities. All freshmen should be required to take a course called “Offense 101,” where the readings will consist of arguments from across the political and philosophical spectrum that some substantial proportion of the student body is likely to find offensive. Selections from The Bell Curve. Essays from one of the New Atheists and one of their opponents, and from hardcore pro-lifers and pro-choicers. Ward Churchill’s “little Eichmanns” monograph. Defenses of eugenics, torture, violent revolution, authoritarianism, aggressive censorship, and absolute free speech. Positive reviews of the Star Wars prequels. Assemble your own curriculum—there’s no shortage of material.

For each reading, students will have to make a good faith, unironic effort to reconstruct the offensive argument in its most persuasive form, marshaling additional supporting evidence and amending weak arguments to better support the author’s conclusion. Points deducted if an observer can tell the student doesn’t really agree with the position they’re defending.

Only after this phase is complete will students be allowed to begin rebutting the arguments. Anyone who thinks it’s relevant to point out that the argument is offensive (or bigoted, sexist, unpatriotic, fascistic, communistic, whatever) will receive a patronizing look from the professor that says: “Yes,  obviously, did you not read the course title? Let’s move on.” Insofar as these labels are shorthand for an argument that certain categories of views are wrong and can be rejected as a class, the actual argument will have to be presented. Following the rebuttal phase, students will be randomly assigned to a side for an in-class debate.

On the last day of the course, but not before then, students will be allowed to vent opinions regarding the degree of moral or intellectual depravity that could permit someone to write such appalling things. Until Venting Day, everyone is obligated to maintain the tone they’d use if they were evaluating papers from an experimental physics journal.

The point, of course, is not that we should all be Vulcans about contentious political issues, or that it isn’t sometimes perfectly sufficient to point out that an argument is repulsive and bigoted, and therefore unworthy of serious consideration. Life is too short to pretend that every screed out there merits a reasoned response. But let’s face it, a lot of our fellow citizens believe appalling things—yet remain our fellow citizens. There’s value in developing the capacity to respond dispassionately to those beliefs, so that even when we decide not to exercise it, it’s a choice rather than a reflex. And if a generation that’s gone through this training starts to regard the practitioners of fishing-for-outrage politics as faintly ridiculous, well, call that a perk.

Addendum: This will, of course, be show the first day…

The first time I heard the Divine Fits’ debut album, I remember thinking that the members of Spoon must be peeved that someone had so perfectly emulated the band’s sound as to produce what could pass for the best Spoon album since 2002’s Kill the Moonlight. After a quick Wikipedia search, of course, I realized that it wasn’t a case of “emulation” at all: The group’s line-up included Spoon front man and songwriter Britt Daniel, whose unmistakable sonic fingerprints were all over the album.

Probably every reader of this blog has often had the similar experience of hearing a new song by an artist they know well, and instantly recognizing its authorship, even before the singer’s voice comes in. What we’re recognizing, of course, are the rhythmic and melodic tricks certain songwriters recur to, and the idiosyncrasies of each performer’s technique. Yet those of us who aren’t musicians, or at least trained in music theory, usually can’t tell you exactly what we’re recognizing.  If pressed we might be able to isolate some familiar elements and say something vague about what makes them familiar: Johnny Marr’s “jangly” guitars, that yearning quality of James Mercer’s ascending and descending vocal melodies, the “too many notes” intricacy of a Mozart composition, the driving rhythm that somehow reminds you of three or four other Spoon songs, even though it’s not quite the same. It’s a classic case of what Hayek and Polanyi called “tacit knowledge“: We’re much better at employing our knowledge than we are at articulating exactly what it is we know, or how we’re doing it.

But of course, what we’re recognizing usually can be articulated by an appropriately trained person—and I bet I’m not the only non-musician who’d find it pretty fascinating to have that explained. So here’s a free idea for any music sites or magazines on the lookout for a fresh feature—or an aspiring music writer with the know-how to pull it off: A regular “What’s that Sound” column that picks an artist with a distinctive sound and tries to explain—with some technical detail, but presented with reference to specific examples so the untrained reader can get some sense of what it actually means— exactly what that trademark “sound” consists of. I’m so confident this would be popular that I’m almost surprised that (as far as I know) it hasn’t already been done.

I’ve noticed something interesting about Western press reports on the protests over the “Innocence of Muslims” YouTube trailer. Typically, but perhaps surprisingly when you think about it, the protesters quoted in these articles do not simply, as one might expect, say that insults to Islam or its prophet are an outrage against the one true faith and must be forbidden because that is God’s will. They instead make a familiar—and in one sense secular—type of argument grounded in the (supposed) rights of individuals, the psychological harms purportedly caused by exposure to mockery of one’s deepest beliefs, and the ideal of respect for the equal dignity of others. In principle, this kind of argument does not depend upon the truth of Islam, and indeed, is not usually framed explicitly as being limited to that faith.

While any argument for squelching speech in deference to religious taboos is obviously “illiberal” in its content, there’s a narrow sense in which this kind of argument is formally liberal, in that it strives to meet the requirements of liberal public reason. It is not, in other words, an argument that depends on one’s sharing any particular comprehensive religious or metaphysical doctrine, but aims to present reasons that could be accepted by persons of any faith (or none).

There are, to be sure, many reasons these reports may not really reflect the attitude of most protesters. The people eager to speak with Western reporters may not be representative of the larger pool of protesters. The quotes chosen by reporters for inclusion in an article may not be representative of the pool of what they hear in interviews—precisely because they know arguments predicated on the truth of Islam will be wholly unconvincing to non-Muslim readers and want to present the “best” argument for that side of the debate. And, for the same reason, interviewees may be crafting responses that reflect what they think will resonate Western readers rather than their true beliefs.  Certainly, there’s not a lot of evidence that governments in majority-Muslim countries are terribly concerned about limiting offensive and derogatory speech about other faiths. All that said, it seems like it’s got to be a healthy development that even many proponents censoring blasphemous speech so naturally adopt the language of liberal public reason for the purposes of public justification, whether sincerely or not. It’s so deeply embedded that we don’t even notice it in cases where it ought to be a little remarkable.

The problem for those proponents, of course, is that this argument fares pretty badly if we actually take the constraints of public reason seriously. Once you make your anti-blasphemy principle truly general, abandoning any reliance on the truth of the faith insulted, you’re pretty much forced to grant a veto on speech to anyone (any group?) claiming offense. That seems certain to make such claims more frequent, and to risk burdens on the speech of the faithful that far outweigh the benefit of having the offensive speech of others silenced—especially given the alternative, if the issue is offense to people rather than god, of not looking at online videos that offend you. The million dollar question is whether those who embrace the terms of public reason when attacking blasphemy will internalize its norms enough to actually accept a loss on those terms.

I love the idea behind Ada Lovelace Day: Celebrating the neglected contributions of women in science and technology in order to encourage young women to pursue careers in stereotypically male fields where, all too often, a “boys club” environment continues to reign. But I really wish this effort could pick a better mascot than Ada Lovelace, a figure of no real importance to the history of science or computing, whose fame rests largely on a single paper that regurgitated and popularized the ideas of a man.

Lovelace is frequently hailed as the “first computer programmer,” which is true in approximately the same sense that William Shatner is the “first starship captain.”  The “program” Lovelace published was an algorithm actually written by Charles Babbage, which could have computed a sequence of Bernoulli numbers on Babbage’s never-constructed Analytic Engine.  The original ideas in the paper are Babbage’s, and the paper—a translation from French of an Italian mathematician’s lecture on the Engine, followed by a much lengthier series of explanatory notes—was written with his close collaboration. Here’s how Babbage described the process:

I then suggested that she add some notes to Menabrea’s memoir, an idea which was immediately adopted. We discussed together the various illustrations that might be introduced: I suggested several but the selection was entirely her own. So also was the algebraic working out of the different problems, except, indeed, that relating to the numbers of Bernoulli, which I had offered to do to save Lady Lovelace the trouble. This she sent back to me for an amendment, having detected a grave mistake which I had made in the process.

Babbage was being charitable here: As their correspondence at the time shows, it was Lovelace who asked Babbage to send her the “necessary data & formulae” to construct an example involving Bernoulli numbers, with no hint that she merely wished to be saved the bother of a task she could have done for herself. Another letter suggests that Lovelace encountered substantial difficulty in translating Babbage’s “formulae” into the diagram format Babbage had used for his earlier programs—so possibly Babbage’s “save her the trouble” remark refers to some further assistance he rendered in constructing the table; it’s difficult to tell from the exchanges reproduced in the biographies I’ve read.

Obviously Lovelace was no slouch if she spotted an error in Babbage’s algorithm, and by all accounts grasped the significance of his visionary project when many contemporaries regarded it as crankish. (Then again, she’d subsequently develop similar enthusiasms for mesmerism and phrenology.) But as one biographer puts it, the algorithms contained in Lovelace’s celebrated paper are essentially “student exercises rather than original work.” That’s not to say they’re unsophisticated, but they represent competent execution, not innovation: Her illustrative “programs,” excepting the freshly developed Bernoulli, had all been worked out years earlier by Babbage and his assistants, from whom Lovelace had learned—Lovelace was just the first to put one of these “illustrations” into print. In the eight years between her collaboration with Babbage and her premature death, Lovelace produced no further significant work.

Dorothy Stein was the first of Lovelace’s biographers with sufficient training to seriously assess Ada’s frequent  proclamations of her own extraordinary mathematical genius. She concludes that Lovelace was not quite the prodigy she imagined herself to be, often struggling to master relatively elementary concepts and principles. A November 1842 letter to her tutor, the renowned mathematician Augustus De Morgan, finds her stuck on a problem of the sort you probably recall working through in high school:

Show that f(x+y) + f(x-y) = 2f(x)f(y) is satisfied by f(x)=(a^x + a^-x)/2

Lovelace confessed she was “ashamed to say how much time I have spent upon it, in vain. These Functional Equations are complete Will-o-the-Wisps to me.”  This is a letter written at age 28, a year before her paper on the Analytic Engine.  She continued her education, of course, but it is very hard to believe these are the words of someone a year away from doing major original work in mathematics. Stein concludes that the “evidence of the tenuousness with which she grasped the subject of mathematics would be difficult to credit about one who succeeded in gaining a contemporary and posthumous reputation as a mathematical talent, if there were not so much of it.”

Modern historians without Stein’s background in computer science seem to have swallowed a little too credulously Lovelace’s inflated self-assessment, doubtless bolstered  by the praise  of contemporaries eager to indulge a countess and flatter her mother and husband. (Babbage, for his part, never stopped angling for more government funding for his Analytic Engine, and had reasons beyond her mathematical abilities to welcome the interest and advocacy of Lord Byron’s famous daughter.) Again, even with extensive guidance, her “Notes” are obviously the work of a highly intelligent person—but breathless descriptions of Lovelace as one of the great mathematical minds of her era are utterly detached from reality.

If there was something original to Lovelace in that paper, it may be the prescient suggestion that future versions of the engine, which Babbage seemed to imagine purely as a mathematical tool, might be programmed to generate music or graphic art. But if we’re counting feats of imagination, we can find something similar a century earlier in Gulliver’s Travels. This does arguably represent an important conceptual leap, from calculation to true “computation,” in the sense of abstract symbol manipulation, but it still ultimately a speculative aside—science fiction rather than science.

While Babbage and Lovelace may have glimpsed the future of information technology, their influence on its actual emergence was pretty much nil. The principles of computing were independently developed in the early 20th century, and only later was the work of Babbage and Lovelace rediscovered and retroactively integrated into the history of computing. If you want to know what the Information Age would look like if Ada Lovelace had never written a word, look out the window.

I’d guess the myth around Lovelace persists because a woman mathematical genius overcoming the strictures and prejudices of 19th century England to herald the age of computing makes for such a compelling story. It would be so awesome if it were true that nobody really wants to pop the bubble.  The flip side, though, is that Ada has become an icon while real women pioneers of computing like Grace Hopper remain far less well known. It seems more just and more honest to honor those genuine achievements than to insist on holding up a popularizer with an outsized ego as some kind of major figure. Maybe next year we can celebrate Grace Hopper day instead?

Update: The tone of this strikes me as a little harsh on second reading, so I should emphasize that Lovelace was clearly, in many ways, a remarkable woman of admirably broad intellectual curiosity. She had the insight to apprehend both the significance and the workings of Babbage’s Engines at a level few of his other contemporaries did, and the skill to explain them to the public more masterfully than Babbage himself ever managed to. It just seems silly to pretend she was something more than a gifted explicator on the grounds that it makes for a more inspiring story.

Back in the 1980s, the late philosopher Robert Nozick wrote an essay asking: “Why Do Intellectuals Oppose Capitalism?” Happily, the question as Nozick framed it is somewhat less relevant today, as Western intellectuals have increasingly accepted the superiority of some form of market economy to full-blown socialist planning. But a variant form remains: Why do intellectuals seem so disproportionately attracted to “progressive” political views and government-centric means of remedying social ills?

For those of us who tend to favor a relatively small and limited government, and prefer that social problems be addressed by private and voluntary mechanisms, it should be a source of some discomfort that these views find so little favor among some of the most highly educated and intelligent sectors of the population—the “elites” of popular conservative demonology. One simple explanation for this pattern, after all, would be that left wing political views are disproportionately attractive to the highly educated and intelligent because they’re best supported by logic and evidence. Following Aumann’s agreement theorem, this would imply that libertarians should regard the disagreement of large numbers of well-informed people who are at least as intelligent as we are as prima facie evidence that our views are in error, and revise them accordingly.

Nozick speculates that “wordsmith intellectuals” grow accustomed to winning the highest accolades in the academic environments of their formative years, and that this disposes them to be hostile toward the distribution of rewards in a market economy, which may accrue heavily to those with education, but are not necessarily strongly correlated with the kind of verbal intelligence that garners the top academic awards. Crudely put: The middle-class professor or writer will tend to feel cheated by a system that heaps greater rewards on those she remembers as academic inferiors. However plausible or implausible one finds Nozick’s account when it comes to the choice between capitalism and socialism, it seems less satisfactory as an account of the preference for expansive government within a market framework—even if something like this might contribute to the feeling that the wealthy can’t really deserve their holdings.

One thing to bear in mind is that even informed and intelligent people do not typically arrive at their political views by an in-depth review of the evidence in each particular policy area. Most of us can only be really expert in one or two spheres, and in others must rely heavily on those who possess greater expertise and seem to share our basic values. In practice, most people select a “basket” of policy views in the form of an overarching political ideology—which often amounts to choosing a political community whose members seem like decent people who know what they’re talking about. So we needn’t assume the majority view of the intellectual class represents the outcome of a series of fully independent judgments: A relatively mild bias in one direction or another within the relevant community could easily result in an information cascade that generates much more disproportionate social adoption of the favored views. So any potential biasing factors we consider need not be as dramatic as the ultimate distribution of opinion: Whatever initial net bias may exist is likely to be magnified by bandwagon effects. We should also bear in mind that polls of academic faculties often limit the options to “liberal” and “conservative”—and it seems plausible that responses here reflect the rejection of conservative views on social issues, where liberals and libertarians are generally in agreement—though there’s clearly more to the story than that.

Here, then, is an alternative (though perhaps related) source of potential bias. If the best solutions to social problems are generally governmental or political, then in a democratic society, doing the work of a wordsmith intellectual is a way of making an essential contribution to addressing those problems. If the best solutions are generally private, then this is true to a far lesser extent: The most important ways of doing one’s civic duty, in this case, are more likely to encompass more direct forms of participation, like donating money, volunteering, working on technological or medical innovations that improve quality of life, and various kinds of socially conscious entrepreneurial activity.

You might, therefore, expect a natural selection effect: Those who feel strongly morally motivated to contribute to the amelioration of social ills will naturally gravitate toward careers that reflect their view about how this is best achieved. The choice of a career as a wordsmith intellectual may, in itself, be the result of a prior belief that social problems are best addressed via mechanisms that are most dependent on public advocacy, argument and persuasion—which is to say, political mechanisms.

It seems equally possible, however, that a post hoc desire to justify the choice of such a career might play a biasing role. A person without extravagant material tastes can live quite comfortably as an academic or writer, and the work itself is highly interesting and intrinsically appealing. But intellectual jobs of this sort tend not to leave one with the resources to devote large amounts of money to charitable causes without significantly curtailing consumption of minor luxuries: meals out, shows, electronics, vacation travel, enrichment classes for the kids, and so on.

If the world is primarily made better through private action, then the most morally praiseworthy course available to a highly intelligent person of moderate material tastes might be to pursue a far less inherently interesting career in business or finance, live a middle-class lifestyle, and devote one’s wealth to various good causes. In this scenario, after all, the intellectual who could make millions for charity as a financier or high-powered attorney, but prefers to take his compensation in the form of leisure time and interesting work, is not obviously morally better than the actual financier or attorney who uses his monetary compensation to purchase material pleasures. Both are declining to sacrifice personal satisfaction in order to help others—one has just chosen a form of compensation that can’t be taxed and redistributed easily. If private efforts are ineffectual or relatively unimportant compared with political action, however, the intellectual can rest assured that he’s satisfying his moral obligations by paying taxes and writing persuasively in support of the appropriate political remedies.

This account seems consistent with our current political rhetoric, in which progressive political views are taken to signify compassion and concern for the badly off, while conservative or libertarian views are (progressives often say) evidence of callousness or selfishness. As Jason Brennan observes in a recent post at Bleeding Heart Libertarians, there’s something a little odd about using political views as a metric of compassion or selfishness. Talk, after all, is cheap: It costs nothing to express verbal support for a policy or candidate. One might think a better measure would be some indicia of compassion that involve a modicum of sacrifice—charitable donations or hours volunteered—and by these measures, Brennan claims the evidence is that progressives fare no better than anyone else. But of course, if you assume that political mechanisms are vastly superior to private ones, then writing blog posts and op-eds supporting progressive policies (as opposed to giving large sums to charity or working in a soup kitchen) may be the more morally relevant way of expressing compassion.

Of course, many intellectuals of every ideological stripe also give to charity or volunteer, and some lack the temperament that would make high-paying corporate work a realistic alternative. And one can just as easily tell a complementary story that explains why private businessmen would be disposed to believe (either because of selection effects or post hoc rationalization) that contributing to private economic growth is the best way to improve the world.

Still, combined with the effect of social information cascades, this account provides one reason we might expect wordsmith intellectuals to favor progressive views independently of whether these views are the best supported by arguments: It is on these views that—by engaging in intellectual activity, and by voting and advocating for the appropriate policies—intellectuals are already best meeting their moral obligation to help make the world better, even if other career choices might enable them to make larger direct, material contributions. This line of reasoning is no excuse for libertarians to become glibly complacent in their views, or to substitute psychoanalytic for substantive responses to specific progressive arguments. But it is, perhaps, reason to be less worried that the predominance of progressive views among intellectuals is, in itself, necessarily strong evidence against the libertarian position.

Most students learn in history class that our Fourth Amendment emerged from the hostility of the American colonists to “general warrants” and “writs of assistance” authorizing intrusive, discretionary searches of private homes.  What they’re seldom taught is how strongly that hostility was bound up with undisguised class-based contempt for the officers who conducted those searches—so much so that the scathing rhetoric deployed in the speeches and documents recognized as the Fourth Amendment’s inspiration can be a bit of a shock to modern ears.

A list of complaints against British abuses, adopted by Bostonians at a town meeting and then  widely-circulated as an influential pamphlet, lamented that under writs of assistance “our houses and even our bedchambers are exposed to be ransacked, our boxes, chests, and trunks broke open, ravaged, and plundered by wretches, whom no prudent man would venture to employ even as menial servants.” A legendary speech against the writs by the attorney James Otis—recorded and summarized by a young John Adams, who declared himself profoundly influenced by it—similarly complained that search authority was conferred upon “not only deputies, &c. but even THEIR MENIAL SERVANTS ARE ALLOWED TO LORD IT OVER US — What is this but to have the curse of Canaan with a witness on us, to be the servant of servants, the most despicable of God’s creation.”

Even before the Internet, some of the choicest bits of vitriol came from anonymous and pseudonymous essayists. An editorial in The Monitor alleged that general warrants “empower mean, Low-lif’d ignorant men to enter, and to act at discretion.” Maryland’s “Farmer and Planter” was outraged that discretionary search powers would be granted excise officers, who were drawn from the “scruf and refuse of mankind.” The “Father of Candor” sniffed at the notion that “any common fellow” might presume to search a home on the basis of gossip from his (presumably similarly “common”) acquaintances. A writer styling himself “Freeman” asked rhetorically: “What are the pleasures of the social table, the enlivening countenances of our family and neighbors in the fire circle or any domestic enjoyment if not only Custom House Officers but their very servants may break in upon and disturb them?” These “servants,” Freeman assured he reader, were “a gang of villains, who for meaness [sic] rapacity and corruption may be stiled the very dreggs and sediment of human nature in the last and highest stage of its possible depravity.” In comparison, “Regulus” seems positively restrained in characterizing these officers as “the most despicable wretches.”

There’s loads of commentary in the same vein. While it was scarcely the primary consideration, one reason specific judicial warrants seemed less offensive than the general warrant was that when magistrates rather than deputies had discretion over which homes could be searched, the indignity of the search was not compounded by the insult of being subject to the will of a social inferior.

You can, of course, find plenty of remarks casting the right of privacy as a great equalizer as well, such as William Pitt’s famous defense of the sanctity of the home:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!

In a way, these apparently quite different sentiments were probably mutually reinforcing: At a visceral and emotional level, elite opposition to general warrants was strengthened by the ghastly prospect of  these crude peasants breaking a gentleman’s doors, but when that sentiment is translated into a universal principle, it also entails the right of the “poorest man” to defy the King.

The extraordinary dilution of Fourth Amendment in recent decades—powerfully chronicled in Stephen Schulhofer’s new book More Essential than Ever—is routinely ascribed to a wide variety of causes, all with some justice: The rise of regular, professionalized police forces; changing technologies; evolving social norms and a culture of exposure; our ongoing Wars on Drugs and Terror (and probably Digital Piracy too—give it a few years). But I’d wager that a significant and subtle role has been played by subliminal class considerations—often in tandem with these other factors.

In Colonial America, recall, policing was largely carried out by amateurs and part-timers, along with such volunteers as they might deputize to help carry out a search. These days they’re professionals, often college graduates, who wear suits to court and often appear before the same judge regularly.

The general searches that so incensed Bostonians were meant to aid in the collection of excise taxes, which meant their targets were often respectable merchants and businessmen. Drug dealers are a primary targets of searches today—fully 85 percent of wiretaps are sought for narcotics investigations—which means, innocent or guilty, they’re seldom folks from a social class that naturally inspires judges to identify with them.

Finally, the central mechanism for enforcing the ban on unreasonable searches and seizures was a common-law trespass suit. An “officer” who searched without warrant was treated like any other private citizen and personally liable for damages. A warrant would typically immunize the agent who carried out the search—since he was only obeying the court’s instructions—but the officer or citizen whose affidavit gave rise to the warrant could still be liable if no contraband was found. For a variety of reasons, that’s no longer how it works. Now courts primarily enforce Fourth Amendment restrictions—unevenly, and with a growing list of exceptions—via the exclusionary rule, which bars the use of evidence derived (directly or indirectly) from illegal searches in criminal prosecutions. The predictable consequence is that virtually the only time an appellate judge sees a Fourth Amendment case is when a guilty criminal is trying to get a conviction overturned.

Perhaps it’s no surprise, then, that courts often seem to bend over backwards looking for ways to accommodate police and other government officials, explicitly assuming—utterly contrary to the spirit of the Fourth Amendment—that these upstanding professionals can and must be routinely trusted with  substantial individual discretion over who, how, and when to search. We certainly don’t need a return to the hostile view that government investigators are “despicable wretches”—but it would be nice to see more recognition that they are, after all, “common fellows” whose intrusions on the privacy and dignity of their fellow citizens require judicial supervision, whether that citizen is  an affluent merchant or “the poorest man… in his cottage,” and regardless of whether the investigator is a “menial servant” or a clean-cut middle-class professional.