Legal originalism

19 min read

Canonization of written law creates three problems over time:  social realities and ethical norms naturally evolve to be incongruous with a static legal code, new behaviors and technologies arise that weren’t contemplated by the original authors, and internal inconsistencies in the text come to light.

The Hebrew Torah (“law”) exemplifies these problems: 

  1. Evolution of norms. The Levitical age of 25 years (Numbers 8:24) was later reduced to 20 years (1 Chronicles 23:24), in order to yield more priests within a decimated post-exilic population.
  2. Unanticipated situations. The Torah provides detailed instructions for designing a mobile tabernacle (Exodus 25-27), but not for building and maintaining a fixed central temple.  In the post-exilic period, Jerusalem temple worship and priestly activities became the centerpoint of Judahite identity, requiring updated instructions (1 Chronicles 21-29 and 2 Chronicles 2-5).
  3. Internal inconsistency. Is Passover meat to be eaten boiled (Deuteronomy 16:7), or only roasted and never boiled (Exodus 12:9)?  The proper technique was later harmonized as roasting (2 Chronicles 35:13).

The five long-lost papyrus scrolls eventually canonized as the Torah were written in the 8th to 6th centuries BCE.  First, the core of Deuteronomy was likely written in mid-8thc BCE Samaria (northern Canaan) and revised in late 7thc BCE Jerusalem (southern Canaan).  In the late 8thc refugee-flooded Assyrian vassal state of Judah, the Book of Genesis strategically combined northern and southern oral traditions to ensure broad resonance.  Next, Leviticus, most of Numbers, and the “priestly” half of Exodus were written in 6thc BCE Babylonian exile. 

Reality in the 4th century Persian vassal state of Judah was quite different.  It took Jerusalem four centuries to rebound from its devastation by the Babylonians in 587 BCE, which had reduced the prosperous capital city of some 20,000 inhabitants to perhaps no more than 1,000.  The 6th century territory of Judah contracted from some 3,000 square miles to around 100, and didn’t resume meaningful territorial expansion until the 2nd century BCE Hasmonean period.  Solidifying Judahite ethno-religious identity in this bleak, post-exilic context was the primary purpose of new scripture.

So, rather than suffice with a legal code from two to four centuries past, priests wrote new guidelines.  The 4th-century BCE Book of Chronicles repeatedly justifies re-interpretation, harmonization and amendment of the sacred Torah with the phrase k’mishpat (“according to tradition”).  The semantic range of the Biblical Hebrew word mishpat includes written laws/regulations/ordinances as well as community interpretation of such rules.  Its meaning encompasses both what is statutory and also what is customary. [1]  In contrast to today’s ontology, law and tradition were not dichotomous. 

Legal hermeneutics

Judicial originalists consider the meaning of a legal document’s original words to be fixed.  They aim to interpret law according to how the words were understood at the time they were written, and without regard the law’s current consequences.  Within the originalist camp, people differ as to whether to consider the writers’ intent (intentionalists/interpretivists/constructionists) or not (textualists/formalists/strict constructionists).  Intentionalists may use supplementary texts to attempt to ascertain intent or they may ascribe intent subjectively.  Textualists believe adequate meaning is extractable from the words on the page. 

Judicial pragmatists (non-originalists/purposivists/loose constructionists) consider precedent and consequences.  They understand the legal document’s writers’ intention to have been varied, contextual, and impure.  People can’t anticipate everything in the future, so the legal code should be viewed as “living”.  Interpretive pragmatism recognizes that there was debate before the ink was dry, and so it’s artificial to long afterward retroject stasis onto something that wasn’t static at its origin, to indulge in nostalgia for a certainty that never existed.  Wishing you had certainty doesn’t give you the right to pretend you have it.

Certain types of legal texts naturally demand an interpretive approach weighted more toward either empathic pragmatism (consideration of the “forest”) or disciplined textualism (focus on the “trees”).  A reader may subscribe to elements of all approaches, depending on text and context.  Collective legal text interpretation by a group is best served by a diversity of individual interpretive approaches. 

Pragmatism, intentionalism, and textualism are unequally-spaced points on a spectrum of faith in interpretive objectivity.  Pragmatists accept that objectivity, though desirable, is illusory.  The 21stc revolution in cognitive science and behavioral economics supports this amply.  Originalists still believe that it’s possible (either with consideration of probable authorial intent, or without, in the more extreme case of textualists).  Post-modernism overturned the Enlightenment’s subject-object dichotomy, recognizing that interpretation changes a text.  We now have a broad, cross-disciplinary understanding that “truth” is shifty, the interpretive lens distorts, pure objectivity is unattainable, and reading a text is an act of imposition more than extraction of meaning.

No serious person occupies either extremity of this spectrum.  Nobody claims such nihilistically complete subjectivity that leaves nothing knowable and everyone’s law books tossed out the window.  And, nobody claims such childishly pure objectivity that they believe to have achieved transtemporal telepathy with deceased authors and thus immunity from socio-political-cultural bias.  However, simplistic slander by each side accuses the other of inhabiting the absurd spectral endpoint.

Jewish non-originalism

Judaism is philosophically non-originalist.  Classical four-part Jewish hermeneutics asks readers to consider much more than the historical-grammatical meaning of a scripture text.  Importance is placed on a text’s unintended allegorical possibilities, tangential parallels with other texts, and mystical associations supernaturally revealed to (i.e., invented by) the reader.  Ascertaining the human author’s original intent isn’t the goal.  Sacred time is circular.  Thus, a reader might legitimately use a later text to inform the meaning of an earlier one, despite authorial dependence going the other direction.  Turn-of-the-millennium Jewish scribes imaginatively repurposed old scriptures as midrash, unhistorically embellishing and expanding stories to make a theological point independent of the original text’s plain meaning.  That gave us, for example, The Book of Jubilees, The Book of Enoch, The Gospel of Matthew, and The Book of Revelation.

We are grateful that the writers of the Hebrew Bible chose to include opposing views, preserve some of the authentic diversity of belief that characterized all periods of Canaanite history, and refrain from overwriting past scriptures when they produced new ones.  We inherit an astonishingly rich text, replete with contradictions that evidence accretive composition over time by different schools of thought. The canonical Hebrew Bible contains strata of 2ndc BCE Hasmonean propaganda, 3rdc Hellenism, 4thc and 5thc Persian Zoroastrian influence, 6thc exilic nationalism, 7thc poly- versus heno-theistic tensions, 8thc pan-Israelite ideology, 9th and 10thc Canaanite oral traditions, and distant memories of earlier Bronze Age experience.  Authority in those times didn’t come from a text being static.  The Hebrew Bible’s redactors believed that precisely because it is sacred, religious law must be updated and adapted to current circumstances to remain relevant. [2] 

There are 233,000 Hebrew words in the Tetrateuch (Genesis, Exodus, Leviticus, Numbers) and Deuteronomistic History (Deuteronomy, Joshua, Judges, Samuel, Kings).  The rest of the Nevi’im (“prophets”) plus the Ketuvim (“writings”) total 395,000 words.  Thus, the Hebrew Bible contains 628,000 words.  The Christian New Testament – most of which is midrash on the Hebrew Bible – contributes 138,000 Greek words of content. [3]  Then, the 3rd – 5th century CE Talmud adds 1.8 million more words of interpretation and analysis.  

Strict originalism with the Torah would have left the Jews endlessly carrying the Ark of the Covenant around in a tented tabernacle, instead of building (and re-building) a centralized temple.  The pragmatic re-interpretation of legal text supported the 7th-century BCE monotheizing centralization of the Yahveh cult in Jerusalem and the 5th-4thc BCE institutionalization of priestly temple worship.  Contemporary Western social and political order is dependent on that legacy.  Without legal text revision and re-interpretation, our “10 commandments” would refer to the 8thc BCE “Ritual Decalogue” of Exodus 34 (firstborn animal sacrifice, wheat harvest festival, no covenants with polytheists, etc), rather than the 7th and 6thc “Ethical Decalogue” of Deuteronomy 5 and Exodus 20 (no murder, no adultery, no lying, etc).

Originalism regarding Biblical law today would be absurd.  We don’t kill every child who swears at its parent.  We don’t morally condemn athletes wearing blended-fiber clothing or military veterans with tattoos.  We are right to now punish rapists instead of rape victims, and to abhor the Old- and New Testament-sanctioned institution of human slavery.  We are right to now embrace the innate homosexual orientation of ~6% of our fellow human beings.  Biblical originalism would leave us without the holidays of Hannukah, Easter, and Christmas.  Christians wouldn’t have the Trinity, the Immaculate Conception, or the penal substitution understanding of atonement.  A majority of contemporary Christian popular songs would be recognized as heretical, in that their theology is inconsistent with the Bible text and derives instead from post-Biblical tradition. 

Conservative Protestant Christianity’s struggle with non-originalism

No matter our individual religious affiliations or lack thereof, we Americans all live under a distinctly Christian “sacred canopy” (sociologist Peter Berger’s 1967 term).  Every society’s sacred canopy is both universal and invisible.  Growing up in America means unconsciously absorbing the Christian cultural and epistemological paradigm – to an extent only somewhat mediated by one’s nuclear family of origin.  

“Judeo-Christian tradition” is an ideologically-loaded 20th century American idea — loaded originally with the pretense of non-exclusion of Judaism, and more recently with a (historically inaccurate) nativist othering of Islam.  In practice, our American “tradition” is Judaic only in that 1st century Judaism was the direct source for almost all of what became Christian theology (with the rest sourced from Hellenistic philosophy and mystery cults).  Indeed, the hermeneutic of the 1st-2ndc CE Jews who wrote the Christian scriptures was identical to that of the 2ndc BCE – 1stc CE Jews who contemporaneously wrote the Hebrew Ketuvim and apocrypha.  (Moreover, their theology was also so congruent that the classification of some period scriptures as “Christian” versus “Jewish” is debatable.)  However, the subsequent exegetical traditions diverged.  

Exegetical praxis in Judaism has remained explicitly non-originalist over the millennia.  Somewhat similarly, Catholic and Orthodox Christianity emphasizes post-Biblical convention and patristic mediation of “living” scripture.  Mainstream liberal Protestant Christianity embraces a “higher” critical perspective and thus adaptability to scholarly revelation about its sacred text.  However, conservative Protestant Christianity stands alone in unqualified opposition to pragmatic interpretation of scripture.  

Because of their position against Biblical non-originalism, the Protestant literalists have particular trouble with judicial non-originalism.  Protestant Biblical literalists account for just 15% of global Christians.  But it is their disproportionately loud voices that frame popular American political and philosophical discourse…and influence secular legal hermeneutics. 

In our Christian-influenced culture, authority comes from stasis.  Hence, ex-Christian anti-theists delight in mocking the Bible for how profoundly its message changed over time.  They are correct that the Bible is not inerrant.  It’s full of orthographic errors, copyist omissions and rogue scribal glosses, anachronisms, externally-attested historical factual errors, mis-citations of other scripture, words nobody today knows the meaning of, pseudepigraphs, plot holes, unmarked interpolations, and unresolvably conflicting non-original manuscript fragments…as well as substantive internal contradictions where the same event or topic is addressed more than once.  However, regarding the contradictions, the mockers are anachronistically applying their 21st-century interpretive paradigm to 1st-2ndc CE (Christian New Testament) and 8th-2ndc BCE (Hebrew Bible) texts.  Despite their reasoning being critically unsound, plenty of contemporary Christians have de-converted in response to noticing Biblical contradictions.  For the same reason, conservative Christians are hostile to scholarly high criticism and engage in convoluted harmonizations (“apologetics”) to preserve the illusion of consistency.  And, it’s that same normative reverence for stasis that threatens politicians with ridicule if they modify a policy stance based on new information.  Being labeled inconsistent is a cutting insult in our culture.

Although Christian fundamentalists have difficulty embracing a non-originalist interpretative orientation, they may themselves be theologically non-originalist.  Some avow a docetic Christology: Jesus was a pre-existing divine being who only appeared to be human but wasn’t.  For example, I recently endured a Brazilian Pentecostal’s tirade when, in passing, I referred to Jesus as a “person”.  However, docetists like my Brazilian friend were called “anti-Christs” in the canonical Epistles of John (~100-120 CE), their celebrity proponent Marcion-of-Sinope was excommunicated in 144 CE, and docetism was officially condemned as heretical at the 325 CE Council of Nicaea. [4] 

As a practical matter, Biblical originalism is impeded by the fact that we don’t have the original manuscripts.  Academic specialists use advanced critical methods to hypothetically reconstruct what the original likely said.  But, they don’t all agree which of the extant manuscripts is closest to the lost original for any given corrupted passage.  Moreover, because of the internal contradictions and lack of systematic theology in either the Hebrew Bible or Christian New Testament, there is a wide range of scripturally accurate “original” belief.  Technically, being a Biblical literalist Christian doesn’t require belief that Jesus existed, that he was divine, or that he was a predicted Messiah.

“Original Christianity” faithful to Jesus’ own religion could mean following the 613 stipulations of Mosaic law: male circumcision, eschewing bacon and lobster, interest-free lending, premarital sexual abstinence, no worship during menstruation or a week after ejaculation, no work on Saturdays, no neutering of puppies or cross-breeding of livestock, etc.  Nonetheless, their unwittingly non-originalist reading of the Bible can lead nominally originalist Christians to reject not only antiquated elements of the Levitical holiness code, but the Old Testament in its entirety.  Such Paul-centric, quasi-Gnostic, anti-Semitic “Marcionism” was condemned as heresy in the 2ndc CE when it arose.  Still, modern-day Marcionites exist – and, ironically, are known to selectively quote from the Old Testament to argue from implied authority (with further irony of ascribing certainty and relevance to a contradictory, composite text).

This evidences the core problem with originalism in any domain:  it’s usually about convenience, not consistency.  Originalists are liable to make disingenuous arguments.  For example, the Hebrew Bible is overwhelmingly clear that we are to proactively care for the poor, and the Christian New Testament advocates plainly socialist redistributive policies.  Yet so-called literalists are typically hostile to social welfare programs and critical of, rather than compassionate toward, the poor.  Similarly, the Bible has nothing to say about reproductive rights; yet, so-called literalists invoke the Bible in campaigning to restrict women’s dominion over our own bodies.  Originalists choose which passages to privilege and then must explain away or ignore other inconveniently contradictory passages.  “Anything in the Bible that is not literally true must be an allegory, because the Bible is always literally true” goes the apologist’s unapologetically circular argument. 

Constitutional hermeneutics

Tuesday April 18, 2017, was Neil Gorsuch’s first day on the United States Supreme Court.  The self-described originalist caricatured originalism with his monothematic interjections: “Look at the plain wording.” “Just read the words.”  Other justices, including originalists, countered that it’s not so simple.  Journalists noted Gorsuch’s “shots across the bow” as pre-emptive assertions of rigid originalism to come.  On Day One, his “just the text” catechism is already tiresome. [5] 

Textualism privileges words over their consequences, maintaining that there’s no subjective act of interpretation occurring.  But language is inherently ambiguous and thus interpretation is necessary.  For example:

  • Do “privileges and immunities” refer to citizens’ rights at the local, state, and/or federal level, and/or rights derived from natural law and/or by custom, and are they substantive and/or procedural rights?
  • Are white women and non-white people “persons” deserving “equal treatment”? Apparently not, as it took an amendment two years later to give black men the right to vote, and another amendment fifty years after that to give women the right to vote.  Yet, according to tradition (k’mishpat), we now read “person” as encompassing all human beings.  
  • What did “cruel”, “unreasonable”, “probable”, and “liberty” mean in 18thc colonial American English? The document is full of aspirationally vague words with indeterminate meaning, necessitating a value judgment by later readers.  
  • Do wiretapping and drone surveillance constitute a “search”? Does revenge porn posted online constitute “speech”?  “Dead document” textual originalism can become risible.  And, when uniformly applied, it doesn’t always lead to a politically conservative outcome. 

For these reasons, Constitutional textualists are — like Bible proof-texters – notoriously selective with textual evidence.  Whether its proponents are failing to offset subconscious ideological confirmation bias, or are consciously and disingenuously fitting text to personal ideology, textualism is objectively not the objective approach it purports to be.  Textualist Supreme Court justices’ departures from textualism have been well documented, and we expect the same selective hermeneutical approach from Gorsuch.  After all, the court doesn’t keep a scholar of 18thc American English linguistics on call to inform its deliberations.  [6]

Just as the Bible is not inerrant, so neither is the United States Constitution.  Since the framers knew they couldn’t predict the future, they resisted including specific policies – with the exceptions of income tax policy added via amendment, and alcohol policy added and then subtracted via amendment.  Even so, the document made (and eventually corrected) what we now accept was an egregious moral error regarding the specific policy of slavery.  The Constitution is a short document of 7,591 words (compared to 4,200 in this essay), and in it the framers were smart to mostly remain general and abstract.  However, that well-intentioned textual magnanimity translates into greater subjectivity in interpretation later on.  This is parallels how the Bible’s parabolic abstractions and poetically non-specific language (plus errors, contradictions, non-systematic message, and composite structure) forces subjectivity in its readers.  By their natures, both texts provoke endless interpretive controversy.

Object informs interpretation.  Though most texts don’t announce what hermeneutic to use in interpreting them, both the Bible and the US Constitution helpfully do so.  The 9th amendment is famously troubling to constitutional textualists, in that it recommends non-originalism.  It states that failure to specify a right in the Constitution shouldn’t translate into restricting that right.  The document knows it isn’t comprehensive.  In addition to being unfeasible in practice, strict “originalism” is both non-Biblical and non-Constitutional.

Law has purpose.  Interpretation should further the law’s purpose — as distinct from the law-writers’ intent, and as distinct from imagining how the law-writers would have solved a problem of today that they never could have contemplated.  The purpose of the United States Constitution is stated up front: “in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”  Fidelity to purpose requires adaptation to match changing social and ethical norms.

Faithfulness to the overall purpose of a document also requires reading it as a unified whole, rather than as isolated passages.  This is considered best practice for legal documents as well as religious scripture.  For example:  

  • The ~700 BCE text of Isaiah 7:14 depicts a court prophet in 734 BCE explaining to King Ahaz of Judah that a young woman having conceived is a comforting divine sign that the Israel-Aram coalition against Judah will fail. If one digests the Book of Isaiah in its entirety, and together with the Deuteronomistic History from which it copies some content, its multi-century historical context and anthology structure is apparent.  However, reading it in decontextualized excerpts, many have claimed that the words predict Jesus.  The interpretive fallacy is aided by the 3rdc BCE translators’ choice — either careless, ignorant, or ideological — to (a) change a present perfect Hebrew verb to a future tense Greek verb and (b) replace the specific Hebrew word for “young woman” (almah) with an imprecise Greek word that can mean either “young woman” or “virgin” (parthenos).    
  • The 2nd Amendment of 1791 states its purpose as “the security of a free state”, and thus the right to bear arms as conditional. In the overall context of the Constitution, the potential need for a militia to effectuate that security was due to the new republic’s lack of a standing army.  In an era that also lacked local police forces, domestic tranquility got some help from private citizens with muskets that fired 2 times per minute.  Today, domestic tranquility is harmed by easy access to guns firing 600 times per minute.  Weapon technology and social reality have changed in unanticipated ways, demanding updated common sense interpretation of how to achieve the 2nd amendment’s purpose.  Is this an oversimplification…or is it actually the “plain wording”?  [7]  Honest originalism would restrict the right to bear arms today. 

Intentionalism is less extreme than textualism, but leads to its own thorny problems.  In interpreting some legal texts (e.g., contracts and wills), the intent of the writer has significant merit for interpretation.  Less so for the Constitution.  The purpose of our Constitution is not to further the disparate and unstated intentions of 39 upper-class, East coast, Anglo-Saxon, Protestant,  heterosexual, slave-owning, pre-industrial, 18th-century male lawyers. [8]  For example, it is clear from extra-textual evidence that the intention of the 14th Amendment in 1868 was definitely not to prohibit racial segregation; yet, we’ve (thankfully) interpreted it as such ever since 1954.  A Constitution interpreted strictly in light of authorial intent — whether imputed or extra-textually researched — doesn’t necessarily provide the best foundation for a more perfect union, in that it may not remain consistent with the Constitution’s own purpose: the welfare and liberty of contemporary citizens.  The temporal and cultural distance between 1787 and 2017 is vast.  As has often been asserted, the Constitution should be wiser than its writers. 

Humans are human because we can transmit valuable learnings across generations.  This is a feature only known in hominims. [9]  Tool manufacturing started 3.3 million years ago with hominims (interestingly, among primates outside our own genus homo).  Today, intentional tool-making and its corollary of high-fidelity knowledge transmission isn’t seen in any living creatures other than homo sapiens.  We humans use tools to make other tools, rather than just appropriate found objects as tools.  Crucially, we then teach what we learn, so our children don’t have to start over knapping stones into axeheads and re-inventing the wheel every generation.  The fundamental fallacy of strict legal originalism is that it repudiates the wondrous capacity of humanity to learn, accrue wisdom and become more efficient, moral, prosperous, cooperative, and healthy over time.  When it comes to Constitutional law, we can do so much better than to “just read the words”.  

April 2017



[1]  One example of its statutory usage: In the Book of Deuteronomy, Moses recapitulates mishpat, which we now refer to as “the ten commandments”. 

[2] The Christian New Testament continues the Hebrew scripture practice of incorporating opposing belief traditions without harmonization.  It teems with theological contradictions and incomplete articulations of core doctrinal points.  A systematic Christian theology only coalesced two centuries after the last Biblical scriptures were written.  Hence, the need for so much textual harmonization today among people who can’t tolerate that contradictory diversity. 

[3]  For example, 70% of the Book of Revelation’s 404 verses are decontextualized Hebrew scripture references; and much of the remaining 30% is borrowed from extracanonical Jewish apocalyptic writings and Babylonian mythology.  Similarly, 20% of the Gospel of Matthew’s 1,071 verses are Hebrew scripture citations and references; and much of the remaining 80% are scriptural plot parallels, plus ideas from Greek Cynicism philosophy.  More broadly, none of the Old Testament passages that Christians now read as predictions of Jesus actually refer to a future Messiah at all.  Rather than being ignorant or deceptive, the writers of the Gospels and the Book of Revelation were engaged in the then-common practice of pesher – a sub-type of midrash that divorces old scriptures from their original intended meaning and creatively repurposes them to explicate current events.  However, in short order, rapidly-expanding early Christianity forgot its own original hermeneutic.  For the next 17 centuries, the wider Gentile world mistakenly read Christian scripture as historical rather than midrashic.

[4] The Christologies of Jesus’ posthumous followers included docetism, separationism, incarnation, adoptionism, as well as the belief that Jesus wasn’t divine.  All but incarnation were eventually declared heretical.  The canonical synoptic gospels reflect resurrectionist adoptionist and baptismal adoptionist Christology – another example of intentional preservation of contradictory and heterdox belief traditions. 

[5]  Gorsuch was raised Catholic and now attends a liberal Episcopalian church – an example of the imperfect correlation of nominal religious affiliation with stance on judicial hermeneutics.  To the extent that exegetical paradigms influence legal interpretive paradigms, they are defined more by the sacred/cultural canopy than by individual worship community membership.

[6]  The long deliberations often dive into mind-numbing semantic minutiae.  Recall that President Bill Clinton was excoriated by the media in 1998 for caveating acknowledgement of an extramarital affair based on “what the meaning of ‘is’ is”.  This was plausibly earnest logic from a cerebral law school graduate who knows that significant constitutional decisions have hinged on the meaning of a single word.

[7] The accusation of oversimplification is used to silence commentary on certain topics, including constitutional hermeneutics, by laypeople.  However, any topic can be addressed in a paragraph, an essay, a book, or an entire shelf of texts.  It’s a self-serving cognitive bias to believe one’s own professional domain uniquely defies summarization and explication.  Constitutional law is not a mystery beyond the comprehension of those who didn’t attend law school.  Justices:constitution::clergy:bible.  Both law and religion benefit from thoughtful disintermediation.

[8]  Although the signers were nominally Christian Protestants, some held non-Trinitarian and Deist beliefs that most Christians today would label “non-Christian”.

[9]  “Hominim” is a taxonomic sub-tribe of the Great Apes sub-family, in the Anthropoids sub-order of the Primate Order.  It comprises the genus homo with its multiple extinct sub-species and one extant species sapiens, plus other genera of pre-human primates.

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Paternalism, autonomy, and milk

8 min read

Progressive-minded people love to ridicule the internal inconsistency of right-wing social conservatives.  Conservatives’ defining values are limited government, individual liberty, and privacy…but one of their core goals is federal government control over private medical decisions.  They deify individual choice and (the myth of) meritocracy…but are also unapologetically anti-choice, giddily dooming poor pregnant women and teenage girls to lives where structural poverty obliterates individual merit.

Yet, the socially progressive worldview also contains a core contradiction:  Understanding that meritocracy is a myth and poor people are not at fault for their situations…but believing ardently in the need for governmental control over poor people’s behavior.  Progressives recognize the humanity of the less fortunate.  They lament poor people’s limited autonomy in the face of widespread discrimination, low wages, environmental and legal injustice, low-quality education, and community violence…but they further limit personal autonomy via paternalistic welfare programs.

Recently, I opined to a fellow bleeding-heart liberal about the wisdom of cash payments to poor people in lieu of behavioral regulation via in-kind welfare.  The topic has been abundantly-researched and well-documented in the media: Unconditional cash payments to poor people are “surprisingly” more effective.  Since gaining attention some two decades ago, the idea has spread around the globe.

My companion disagreed.  When she worked checkout at a grocery store long ago, people on food stamps who had a grocery bill higher than their food stamp card balance would routinely tell her to “put back the milk”.  She glanced at me with a horrified facial expression, seeking commiseration.

But, I’m the opposite of horrified.  I can easily think of numerous rational reasons to “put back the milk” in favor of boxes of processed food, beginning with this:

We heavily subsidize a food that 45% of food stamp recipients can’t even digest.  (Lactose intolerance affects approximately 75% of African-Americans, 50% of Hispanics, 100% of East Asians and Native Americans, and 20% of Anglos.  Food stamp recipients are 26% African-American, 10% Hispanic, 4% East Asian and Native American, 40% white, and 20% unknown ethnicity.)  Lactose intolerance causes intestinal pain, diarrhea, bloating, and vomiting.  Many people don’t know they are lactose intolerant but may have a subconscious aversion to milk, drinking it medicinally because, in the swamp of endlessly-conflicting nutritional advice, many voices insist it’s good for you.  Years ago, my Asian husband suffered intractable Irritable Bowel Syndrome for which he took medication and sometimes skipped work…until it dawned on us that my dairy-centric meal plan was making him sick.

Rich white people wrote the economic rules.  And, they wrote them from their non-universal perspective.  Bias is invisible to those that hold it.  Even as Anglo-America’s age-old faith in the virtuousness of milk has lately been shaken by science, those of us upon whose distant ancestors evolution bestowed the lactase enzyme will be the last to fold.  Debate over continued government subsidy of the dairy industry reveals how milk takes on quasi moral significance in our culture.

Other valid reasons to put back the milk:

  • Kids in school. All children of parents on food stamps automatically get free milk at school, via the USDA’s 80-year-old Special Milk Program (other kids pay $0.25 to $0.65 per half pint).  So, putting the milk back doesn’t mean denying nutrition to kids – at least on weekdays during the school year.  And, for adults, the health benefit of cow milk over vegetables is no longer supported by science. 
  • Spoils quickly. Because milk goes bad quickly and poor people fastidiously avoid food waste, they may only buy milk when they’re confident that in-town schedules guarantee it’ll get used up quickly.  Similar to how financial credit serves to smooth income, and layers of exquisite knotted carpets in an otherwise bare Bedouin tent serve to store wealth, so packaged food serves to smooth food consumption.  When my next payday is uncertain, I’m financially and nutritionally better off with calories stored as non-perishable food in the cupboard.
  • Not filling. When food is scarce, it’s rational to buy food with the highest satiety index per dollar (usually also the highest calories per dollar).  Like it or not, that means cheap carbs.  We should fix food insecurity, and fix the systemic issues making processed carbs cheap – not expect hungry people to behave irrationally, or to take a long-horizon view of nutrition when they’re trapped in a short-horizon survival game. 
  • Alternate source.  If I check out with eggs, flour, chocolate, and butter, the grocery store clerk will often remark, “You forgot the sugar!” (for the brownies I must surely be making tonight).  Cognitive bias blinds him to the possibility that I already have sugar at home.  Similarly, putting milk back may mean there’s already milk in the fridge that should be finished first in order to not waste money.  It may mean that cheaper milk can be gotten at a food bank, so food stamps are better used for non-milk items.  Or, it may mean that another family member with their own funds can get the milk.   

The point is that if you don’t conduct an in-depth interview, you cannot reasonably judge such a decision.  If you’re a social progressive, your overarching philosophy demands that you respect the decision-making capacity of individuals and recognize that nobody wants to be hungry or unhealthy.  We should all cultivate “sonder” – a neologism defined by the Dictionary of Obscure Sorrows as “the realization that each random passerby is living a life as vivid and complex as your own—populated with their own ambitions, friends, routines, worries and inherited craziness—an epic story that continues invisibly around you like an anthill sprawling deep underground, with elaborate passageways to thousands of other lives that you’ll never know existed, in which you might appear only once, as an extra sipping coffee in the background, as a blur of traffic passing on the highway, as a lighted window at dusk.”  Arms-length judgment and condescension have no place in the liberal person’s worldview.

Cash payments work better than in-kind welfare services.  They are cheaper to administer and more effective at alleviating poverty.  The body of research that showed this is, incidentally, the ground that supports the “universal basic income” idea – a new policy darling of the left.  Paying people a subsistence income frees them from taking the first dead-end job that comes along, and it enables them to make economically efficient investments in more productive activities.  Advocates believe (supported by ample evidence) that most recipients wouldn’t use the income to sit around idly.  So, we see that left-wing progressives’ inability to transfer conclusions from one domain (cash payments labeled “universal basic income”) to another (cash payments labeled “welfare”) echoes that same silo problem among right-wing ideologues.

A well-meaning friend bought me $40 of groceries.  He chose what items to buy, paternalistically believing he knows what’s best.  But if I had control of $40 in cash, I would have used it at a store where it went further, and bought foods that work best in my body and in small quantities that I have no chance of wasting given what’s already sitting in my fridge.  I would have kept some of it to fund my dying dog’s pain medication.  Still, I am grateful for the gesture and the food (including a delicious quart of milk, which I happily drink with a grateful nod to my Germanic cow-herding ancestors).  My friend’s understandable desire for his charity money to be used efficiently translated into the money being used somewhat inefficiently.  Without walking in a poor person’s shoes, you simply cannot know what is best.

Emergency food stamp benefits of $194 per month can only be used in grocery stores and farmer’s markets.  With $150 free cash instead, I could get my car approved for carshare service – i.e., craft my own proverbial fishing pole, rather than depend on handouts of fish.  This inefficiency of in-kind payments is what leads to people standing idly outside of low-income grocery stores, offering to buy groceries with food stamps in exchange for cash.  Conditional welfare payments create economically inefficient gray markets.  Participants lose time, money, dignity, and autonomy.

If I don’t make it out of the black hole of poverty, I will likely spend my last $5 on coffee rather than a final meal – buying a few crucial hours of hunger abatement and mental focus, and thus a last-ditch chance to happen upon a fishing pole.  To a thoughtless and callously paternalistic observer, that dogged resourcefulness might look like a stupid choice.

Another friend recounts driving past an apparently-homeless man smoking a cigarette.  My friend viciously rails about how stupid poor people are, “wasting money on cigarettes that cost $12 a pack”.  I rail back at how unimaginative he is, presuming that anyone smoking a cigarette purchased it and did so without a valid reason.  The man could have been gifted the cigarette by a passer-by, cleverly bartered for it, or bought it loose for next to nothing.  If he bought it, it could be a once-in-forever indulgence, a substitute for medication he can’t afford, or a strategic means of managing gnawing hunger.  Until you ask, you don’t know.  The wise person – and the person whose political identity rests on belief in the complex and structural drivers of poverty and the recognition that there are hapless geniuses stuck in homeless shelters and lucky idiots inhabiting corporate board rooms – must reserve judgment.

None of this should feel so unrelatable.  Nearly half of Americans will apply for a means-tested welfare program at some point in our lives.  Of course, because of the stigma, many of us don’t know for sure who among our acquaintances and colleagues has done so.  But a reasonable level of observational awareness would make it evident.

The medical field practices “paternalism in the name of autonomy”.  By definition, illness involves some diminished capacity.  Paternalistic medical treatments aim to restore patients’ autonomy.  Admirably, physicians hand-wring over this issue, uncomfortable with the possible excesses of paternalism while keenly focused on their mission to preserve and restore autonomy.  Social policy advocates should take a page from medical ethics.  It would be wise to frame paternalism in social welfare as a means to an autonomous end – an ethically-challenging means to be employed only in limited circumstances and with great caution.

Posted in 5-10 min read, Food, Social issues, [All posts]

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Posted in <5 min read, Sex and relationships, Social issues, [All posts]

How the data revolution makes universal health insurance inevitable

14 min read

The limit of U.S. healthcare policy as the data revolution progresses is single-payer, government-provided, universal health insurance. 

Meaning?  Health care delivered by assorted private, public, and not-for-profit medical facilities — just like it is today.  Health insurance financed by the federal government and given to everyone.  a.k.a. “Medicare for all”.  a.k.a. The health insurance system that U.S. Congresspeople enjoy today.

Why?   Because predictive analytics increasingly empowers private payers to identify high-risk customers…even before they become high-cost patients.  And, because a complex hybrid public-private health insurance system leaves private payers with opportunity to selectively excise those future-high-cost patients from their customer rolls.

Data predicts medical problems 

Medical data has existed as long as societies have had professional medical providers.  Predictive analytics has been around since the 17th-century invention of inferential statistics and the 20th-century invention of regression analysis.  Predictive analytics was later made less time-consuming by software (Excel, SPSS, SAS) that automates the statistical math – and does so in an interface that frees the user from needing to understand the underlying arithmetic. 

What’s different now is that we have more voluminous medical data from more sources: data from wearable devices, digitized text chart notes, electronic medical histories, patient-reported information in apps, real-time vital sign monitoring data, lab results, genetics test results, and published medical research insights.  We also have cloud-based IT systems to compile those disparate data types into a centrally-accessible and analyzable format.  Lastly, we also have more advanced analytics software, which uses data mining, qualitative text analytics, and machine learning techniques, in addition to standard statistical modeling. 

Big data- and technology-enabled algorithms deployed today “predict” (i.e., assess the risk of) sepsis, heart failure, stroke, timing to safely remove artificial ventilation, diabetes complications, need for ICU versus standard hospital admission, bleeding during surgery, need for elective infant delivery, and many other medical outcomes.  Such “prescriptive analytics” enable higher-quality medical decision-making and early intervention to lower the chance of adverse outcomes.

In addition to data proliferation and analytics evolution, there are transformative medical innovations in the pipeline: 

  • Things that improve health outcomes, but make care more expensive: advanced prosthetics, 3D printed organs, robotic home care, VR-assisted surgery.  Private insurers have an incentive to charge more for people likely to need such treatments.  How actionable that incentive is depends on health insurance regulatory policy.
  • Things that make care cheaper due to early detection, but identify unhealthy people in so doing: nanopills that detect early signs of cancer and heart disease from inside the body, wearables like contact lenses with streaming data to detect glucose levels or other leading indicators of disease, full-body multi-functional radiologic diagnostic scans. How will private insurers value the avoided costs from early detection compared to the non-zero cost of long-term treatment?
  • Things that cure diseases that would otherwise become expensive, but at a high upfront cost: gene therapy, gene editing, “exercise in a pill”.  How will private insurers balance known upfront costs against unknown future actual or avoided expenses?

Among all the growing sources of data, payers only have access to patient demographics and individual claims data (procedures, medications, and lab tests ordered), plus published research insights (which link demographics and treatments with outcomes).  In contrast, providers have all of that, plus all data any provider generates about a patient (e.g., lab test results) and patient-reported data.  The reach of payer predictive analytics is, thankfully, bounded by America’s strict medical privacy laws.  However, payers are able to extract ever more predictive value from the increasing volume of data they do have.  The power of inference increases as data accumulates.

Health insurance companies are rational 

A fundamental premise of the Affordable Care Act (ACA) is non-discrimination based on medical condition.  Yet, in late 2016, the outgoing Obama administration allowed a federal agency to issue a regulatory rule that effectively allows private insurers to excise its sickest patients. 

Even a simple explanation of the background for this surprising action is necessarily lengthy, but it’s worth pausing to understand.  The ACA champion’s anti-ACA rule affects dialysis patients, as follows:

      America’s 700,000 patients with End Stage Renal Disease (ESRD) often can’t work, since they sit for hours-long life-saving dialysis sessions several times per week…forever (unless they get to the top of the 100,000-person-long national kidney transplant list).  Still, about 60% don’t financially qualify for Medicaid (depending on individual state policy regarding ACA-related Medicaid expansion).  All ESRD patients are eligible for Medicare (it’s the only diagnosis-linked eligibility group), but those under 65 aren’t eligible for the Medicare gap coverage (depending on state policy) that makes Medicare affordable. 
       Meanwhile, dialysis providers earn more from patients enrolled in private insurance plans than those on Medicare/Medicaid.  Therefore, “charitable premium assistance” from dialysis providers to ESRD patients is widespread (though somewhat masked to private insurers by using not-for-profit intermediaries).  For example, a provider pays ~$6000 in annual private insurance premiums on behalf of a patient, in exchange for ~$100,000 in incremental annual payouts from the private insurer: charity that yields a 1500% financial return on investment.
       Historically, 90% of ESRD patients use Medicare and 10% use private insurance.  This is a one-time, very weighty decision that frightened patients must make upon initial diagnosis because one of the ACA’s consumer protections is a prohibition on selling private insurance to Medicare recipients.  Given that the ACA has successfully made private insurance more affordable with capped annual out-of-pocket expenses, the privately-insured ESRD segment will grow organically (if the ACA indeed remains law).  In addition, dialysis providers have a strong financial motivation — and thus a potential conflict of interest with Hippocratic obligations — to steer patients into private insurance.
       One of the ACA’s notoriously-numerous loopholes is that it’s legal for private insurers to void coverage for patients receiving charitable premium assistance (unless they have HIV/AIDS) and to reject Medicare-eligible patients.  Private insurers have only sporadically followed this practice to date, but are getting more aggressive as their own financial pressures mount.  A bipartisan House bill to address the issue failed in 2015.
       The Center for Medicare and Medicaid Services (CMS) has authority over healthcare provider facilities that treat Medicare/Medicaid patients (i.e., almost all of them).  A December 2016 proposed CMS rule forces healthcare providers to inform private insurers if they’re making charitable premium payments – thereby facilitating private insurers’ expansion of the ACA-sanctioned practice of excising costly ESRD patients from their risk pools.
       The ACA has made private insurance preferable to Medicare for many of the ~50% of ESRD patients who are both under 65 and also Medicaid-ineligible.  However, Medicare is preferable for at least the other half.  Why?  ESRD patients on Medicare don’t risk: (a) coverage interruption due to their insurer voiding coverage upon discovering charitable premium assistance, (b) coverage interruption due to provider cessation of charitable assistance post-transplant (when patients still need a lifetime of costly immunosuppressant drugs), (c) de-prioritization on the national kidney transplant waiting list due to anticipated coverage interruption, or (d) high residual payments for the 65% of their healthcare spending that is unrelated to ESRD (if they’re under 65 and thus can’t get Medicare gap coverage).
       Rather than making it easier for private insurers to excise high-cost, chronically ill patients, a more humane and financially efficient solution is:
 (1)  Legislatively close the ACA loophole that legalizes denying private insurance to patients receiving charitable premium assistance and to Medicaid-eligible patients.
 (2)  Legislatively makes Medicare gap coverage eligibility congruent with Medicare eligibility
 (3)  Eliminate the existing CMS rule that discourages private insurers from accepting charitable premium assistance.
 (4)  Cancel the December 2016 proposed CMS rule that mandates charitable premium assistance disclosure. [Overturned by a federal court in January 2017]
 (5)  Mitigate provider conflict of interest by mandating patient-specific analysis of the private vs Medicare/Medicaid insurance decision, and by reinforcing provider ethics in favor of patients’ interests over financial gain. [Completed by not-for-profit intermediaries, effective January 2017]
 (6) Improve the Medicare enrollment process for privately-insured, post-transplant ESRD patients to prevent kidney transplant disqualification by eliminating risk of coverage interruption. (This could take the form of opt-out automatic enrollment, better provider-insurer coordination, and/or a transplant center-led program.)
 (7)  Increase Medicare payouts for dialysis to cover actual provider costs, to reduce financial incentive to steer patients into private insurance.

Imagine that, instead of all this tediously-complex, economically-inefficient horse-trading of patients between Medicare and private insurance, we enact “Medicare for all”.  

In the above ESRD example, Obama didn’t write the offending CMS rule; but, the executive branch oversees the CMS, and thus at least tacitly approved the proposed rule.  So, the guy whose proudest presidential legacy is the ACA capitulated to weakening it.  That’s evidence of how powerful the systemic incentives are to cherry-pick patients based on expected medical cost.  Moreover, those incentives aren’t static – they will strengthen further as the cost of care delivery inexorably rises.  (The cost of healthcare delivery is a serious, independent issue which influences the health insurance crisis and thus must be addressed in parallel.)

It’s folly to expect private companies to self-limit.  The defining objective of a corporation is profit-maximization.  To behave otherwise, companies must explicitly bake a social mission into their decision-making framework (e.g., by using a triple bottom line, lower discount rate, more comprehensive risk assessments).  Water runs downhill.  Such is the argument in favor of market regulation to preserve the public good.  Someone got a Nobel Prize in Economics for explaining this (Jean Tirole, 2014): regulation is necessary for a well-functioning market, and effective regulation is necessarily complex and nuanced, adaptive over time, and customized to each industry.

The combination of private provision of health insurance with predictive data led to a classic market failure:  Quality fell (insurance policies covering less stuff).  Quantity fell (fewer people had health insurance).  Someone got a Nobel for addressing that, too (Daniel Kahneman, 2002):  regulation of insurance product content and regulatorily-automated insurance enrollment are necessary to address bounded rationality and bounded willpower of consumers.  Hence, the ACA.  And, hence, the improvements still needed to perfect the ACA.

Predictive data power + Private profit motive = Deepening healthcare crisis   

Data is getting more powerful.  Incentives are strong.  Data will be used with ever-increasing effectiveness to follow those ever-strengthening incentives, i.e., to reduce coverage of the sickest people.

We’ve seen this play out over decades, with the American health insurance system becoming more and more unfair:  pre-existing condition exclusions, reproductive and maternity care de-standardization, horror stories of untreated people dying of treatable conditions in the world’s richest country.  The patient horror stories are a leading market indicator, akin to oil prices spiking in the run-up to reserves one day reaching depletion, new realtor license applications surging before an asset price bubble bursts, and the proverbial writing on the wall before Babylon fell. 

This downward trend has fueled 20 years of attempted health insurance system reform, culminating in the ACA. 

Band-aid solutions

  1. 1993: First Lady Hillary Clinton leads a task force to identify a solution to the healthcare crisis.  Proposes mandatory universal private health insurance coverage, with government-subsidized premiums for low-income individuals.   Outcome:  Conservatives deny there’s a healthcare crisis and complain this solution is too complex.  Liberals say single-payer universal health insurance (i.e., “Medicare for all”) would be better.  Nothing is implemented.
  2. 2006: Massachusetts Republican Governor Mitt Romney enacts mandatory universal private health insurance coverage, with government-subsidized premiums for low-income individuals.  Outcome:  Uninsured Massachusetts population drops from 10% to 2%.  Continues in force today, with no meaningful opposition.
  3. 2010: President Barack Obama copies RomneyCare, enacting mandatory universal private health insurance coverage, with government-subsidized premiums for low-income individuals.  Outcome:  Conservatives abhor the mandate, but have no counter-proposal.  Liberals believe single-payer universal health insurance would be better, but that it’s unrealistic politically.  Implemented in 2014 after judicial challenges.  Uninsured U.S. population drops from 18% to 10%. Widespread popular support.

Note that, each time, we landed on the same solution…regardless of political party.

The ACA is a valiant effort that has meaningfully improved millions of lives.  Obama was right to consider it a great legacy.  But, it’s a losing battle against the forces of rational monetary incentive among private companies.  The ACA is a makeshift dam.  Water runs downhill. 

The ACA’s imperfection is that it needs to be more comprehensive and absolute.  In economic terms, it’s an “incomplete contract”.  If government is to leave provision of health insurance in private hands, it must specify product quality (i.e., the list of minimum coverage requirements for exchange-qualified health insurance plans) and quantity (i.e., insurance available to everyone regardless of pre-existing conditions, age, occupation status, etc.).  Economists also note that price caps on policies (i.e., max annual total cost to policyholder of premiums + deductible + copays) are inefficient because of informational asymmetry between government regulators and private insurers (Joseph Stiglitz, 2001 Nobel).   

Partisan wrangling to pass the landmark legislation left loopholes for private insurers to excise high-risk people.  They can provide limited coverage of medications used by the chronically ill to make plans unappealing to them (not prohibited by the ACA), charge higher premiums for the elderly (allowed by the ACA), classify university hospitals as out-of-network because they offer more advanced and costly treatments (not prohibited by the ACA), sell lower-quality and discriminatory insurance outside the ACA-regulated exchange (allowed by the ACA), and void coverage of policyholders who receive of charitable premium assistance (allowed by the ACA). 

First, consumers don’t have perfect information to make a choice (think hundred-page insurance policy documents full of technical jargon).  Second, the consequences of choosing badly are very high (buying a policy that doesn’t wind up covering what you thought it did, and thus not being able to afford medical services you need).  It’s precisely in such a situation when market intervention is economically and morally justified.  Accordingly, the ACA cleverly packaged governmental financial intervention (subsidies to help consumers pay premiums) with regulatory intervention (rules about exchange-qualified insurance policy content and inclusivity + a consumer mandate to purchase insurance).

But, when financial and regulatory interventions the private market fail, it’s time for public provision of the good: single-payer government-provided universal health insurance. 

The inevitable solution  

Give everyone health insurance.  Not just old people (Medicare), really poor people (Medicaid), military and veterans (VA), and US Congresspeople. 

“Everyone” means everyone living legally in the US:  citizens, permanent residents (i.e., green card holders), and temporary residents (i.e., visa holders).  Tourists and undocumented residents continue to finance their own insurance or pay out of pocket.  In other words, if you are obliged to pay taxes in the US, you are currently obliged to get insurance under the ACA.  Under a future single-payer universal health insurance system, that same group of people would be automatically enrolled. 

As part of such a system redesign, it would be imperative to true up government insurance payouts with actual private healthcare provider costs.  And, with or without universal health insurance, it is imperative to address skyrocketing healthcare delivery costs.  Single-payer insurance would be simpler, but it wouldn’t by any means be simple – and it wouldn’t be successful in a policy vacuum.

The (losing) compassion argument  

The argument from compassion and fairness using “patient stories” doesn’t work well on strict ideological conservatives…for the same reason that images of forlorn polar bears on tiny ice floes don’t work.  Voluminous academic research in political psychology has shown that conservative brains respond to messages of personal responsibility and purity, not fairness and tolerance.  Their primary objective is moral order, not equality. 

The psychology of political belief formation explains that conservatives tend to see the world as reductively black-and-white, resist grayscale compromise, heavily discount the future, and reserve loyalty and empathy for a parochially-defined in-group.  In practice, they value deterring a small number of free riders more than helping a larger number of qualified beneficiaries of government programs.  As I’ve written elsewhere, this can be constructively framed as a conservative policy preference for avoiding Type I errors of over-inclusion (a.k.a. statistical “gullibility”) over avoiding Type II errors of over-exclusion (a.k.a. statistical “blindness”).  

Though it may sound harsh to the unfamiliar and to the idealistic, it is uncontroversial to note that compassion is relatively low on conservatives’ list of values.  They say it, their voting reflects it, and research confirms it.

The (winning) data argument 

The argument that data makes universal health insurance inevitable uses language resonant with conservatives.  The inescapable reality of big data and advanced predictive analytics leads organically to a logical conclusion of where it’s all going.  No special pleading is necessary.

We’re not talking about moral reframing to improve the argument.  Moral re-framing is how pro-intervention environmental pragmatists (e.g., the Pentagon, scientific community, property insurers, 144 Paris Agreement ratifying nations) will eventually win the climate change action debate among American voters.  They’ll argue for restoring past environmental purity, protecting America from climate-driven military conflicts, preventing storm damage to private property, and conserving the sanctity of God’s creation — rather than argue for “compassionately” investing in future generations’ welfare, preserving evolutionary biodiversity, or protecting faraway wilderness. 

Moral reframing of single-payer universal health insurance might go something like this:  “It’s the purest way to guarantee loyal taxpayers the liberty to freely choose where to receive medical treatment. Our current system of many private insurance companies burdens families with complex restrictions on who’s in which network and who can go to which hospital.  Single-payer insurance will restore the foundational American ideal of all hard-working individuals having dominion over their personal health outcomes.”  That’s true.  But, it’s a weak argument.

The data argument is an appeal to logic that doesn’t rely on out-group empathy:  prediction gets better, risk pool wheeling and dealing gets worse, and we end up in the 1997 dystopian film “Gattaca”.  Political ideology can’t insulate anyone from predictive analytics.  Soon enough, data and policy could empower private insurers to cut fat-but-healthy people off for being on a path to expensive diabetes treatment.  Only immense wealth can offset being denied insurance and having to pay 10s or 100s of thousands of dollars out of pocket for medical treatment.

Experience over empiricism underlies conservatism’s skepticism toward change.  But, at some point, empirical reality becomes so well-documented that it’s undeniable.  That’s when we get single-payer universal health insurance. 

How soon is “inevitable”?  

Hillary Clinton’s 1993 healthcare proposal was met with claims that there was no healthcare crisis.  Two decades later when Barack Obama enacted the ACA, no credible voices dared claim that there wasn’t a healthcare crisis.  Reality is chipping away at ideology.

Demographics will inexorably shift the country to the left.  So goes the platitude of frustrated social progressives.  But, it’s taking longer than predicted.  The political right is successfully kicking the can down the road with gerrymandering.  Similarly, neglected neighborhoods eventually rebound, but that can realistically take more than a generation – longer than beleaguered residents or gentrifying pioneers expect to tough it out.  In 2017, there are places only recently recovered from the 1968 riots.

Likewise, trends suggest that data and its consequences will force the issue of universal health insurance…eventually.  We may tinker with band-aid solutions for quite a while longer.  The pain must become extreme to change the minds of entrenched skeptics.  But data — like demographics and economic cycles and water — will ultimately force its own agenda.  It’s just a matter of time.

March 2017

Posted in >10 min read, Business topics, Social issues, [All posts]

Kiteboarding and climate change

3 min read

Colorado’s traditional 4-month snowkiting season on Lake Dillon only lasted 2 months this year.  It started late, and it just ended last week in mid-March — the time of year we typically consider peak winter in the High Rockies.  Decent snowfall this year may have temporarily quelled ski resort hand-wringing about shortening seasons; but, snowfall on an exposed frozen lake can’t withstand record-setting winter heat.

A few months ago, I also discovered the kiteboarding mecca of South Padre Island, Texas, to be in decline due to rising sea levels and shifting wind patterns.  In the 5 years since my last visit, the northwestern Gulf of Mexico sea level has risen about 2.5 inches.  On flat gradient tidal flats of the Laguna Madre, that translates to the barrier island’s coastline creeping some 50 feet further inland in many spots. 

Soundside beaches where kiters used to park cars are under water.  Disconnected dry fingers of land can only be reached by sacrificially driving through corrosive water three times the ocean’s salinity.  Historically, many dozens of kiters concentrated on one expansive, socially-vibrant beach.  A solo kiter could easily make friends.  There were plenty of people to launch and land kites.  Now, the scarcity of dry land between dunes and water forces dispersion of kiters into small clusters strung out along several miles of coast.  It’s a quieter, more cliquish experience.  There’s no longer any way to even figure out who’s on the island.  The pressure-cooker of disappointing conditions pits grumpy vacationers with stereotypically “first-world” challenges against one another.  

In addition to the disruptively high water line, wind patterns have shifted meaningfully over the past few years.  Data shows that the peak fall and spring windy seasons are each about one month later than they used to be.  However, not all visitors know this, nor are able to adjust their annual pilgrimage schedule.  More kiters are getting skunked more often.  They return home with a bad impression and spread word quickly through the interconnected kite community.

As a result, kiteboarder visitor volumes on the island are way down.  After all, there are plenty of other cool places to kite, and one of the main selling points of SPI seems to be gone.  Marketers know that a tiny change in product features can cause a huge falloff in demand when there are many competing products to choose from. 

The island’s two kite shops have tracked the trend numerically and feel the economic pinch.  New beach access charges aim to replace lost revenue, but there just doesn’t seem to be enough livelihood to go around anymore.  Fewer kiting instructors can subsist in town.  Economic stress brings out the worst aspects of human nature – including competing kite shops vandalizing one another this fall in a turf war. 

The South Padre Island situation is just a minor case study of the mechanism by which rising seas and changing weather patterns can cause social disruption.  Direct consequences of global warming include more frequent and intense storms, floods, and droughts.  Those phenomena are already causing wildlife habitat loss, species extinction, lower crop yields, and expanded disease transmission.  But then there are the hard-to-anticipate, butterfly-type effects on human interaction and commercial activity.  American kiteboarders wrecking car undercarriages in sub-tropical salt flats and slogging across slush-surfaced high-elevation lakes, channeling their frustration into petty but painful interpersonal conflict, and leaving already-marginal businesses scrambling as leisure spending moves elsewhere… That’s just the relatively innocuous beginning.  Climatic instability threatens global economic, social and political instability.

The US military long ago concluded that anthropogenic climate change constitutes a national security risk.  Despite being an appointee of our Science-Denier-in-Chief, the new Secretary of Defense unequivocally reiterated this precautionary position to the Senate Armed Services Committee and to the public.  Perhaps that warrants hope for political change about climate change.

Posted in <5 min read, Environment, Kiteboarding, Social issues, [All posts]

Voce clamantium ex vacuo

7 min read

A personal case study in post-truthism:

Two strangers are about to leave our weekend mountain cabin to go backcountry skiing on the Colorado continental divide.  They’re from out of state, have never lived in Colorado (where our distinctive snowpack is more lethal than elsewhere), and lack the avalanche certification that we Colorado backcountry skiiers usually demand of one another to head off piste.  One of them has never been backcountry skiing before.  Neither of them owns safety gear (beacon, shovel, probe).  It’s noon, and they’re only now planning to head outside.

My friend, who invited everyone (including me and those two prospective skiers) to this group weekend retreat asks me what I’m doing on my phone.  I’m reading the Colorado Avalanche Information Center’s forecast.  We’ve had a major storm over the past few days.  Risk is moderate today in this region – the risk level at which most deaths occur historically.  Her guests don’t seem to have checked the forecast, and I am checking the forecast out of concern.

As my friend knows, I have been backcountry skiing for many years, have a full set of safety gear with me, and am familiar with Colorado snow from having lived here for 4 years, 2 of them up in the mountains.  I’m not planning to ski, due to last night’s storm as well as the lack of people in the group to partner up with. 

So far, this scenario sounds like the ominous preamble to an obvious point:  Those with information/experience are ethically bound to advise the uninformed/inexperienced.  Those without facts ought to want facts, and be receptive to facts when proffered by knowledgeable people.

But here’s the twist: my friend gets angry at me.  She admonishes me to not “interfere” with her friends’ ski plans, since “they know exactly what they’re doing”.  Confused by her reaction, I lay out the above facts – to which she retorts that those two are “experts” and don’t need any help or information.  What about the high frequency of avalanche tragedies in Colorado, often in exactly this situation of under-prepared, out-of-state newbies venturing into risky post-storm conditions?  “A few dozen deaths a year?  That’s not that many.” 

I’m ashamed to say that the already-uncomfortable politics of the group situation in the cabin convinced me to rationalize refraining from interjecting a friendly warning to the unknown skiers.  I didn’t have the energy to withstand such ire.  (An important added layer is that I’m female and the two skiers were male.  Self-censoring when gender power dynamics are in play is often the practical path.)  So, the two skiers departed, and, thankfully, returned in the evening.  But this scenario remains just as troubling as if it had gone horribly awry.  

This is a classic “bad decision that turned out well” — not a “good decision”.  (Confusion between decision quality and decision outcome is another pervasive problem…for another essay.)  Of course, the friend in question may have been having a bad day or perhaps aware of other information unknown to me.  None of us should be judged on our worst days or single conversations.  But the interaction is nonetheless too instructive to resist using as an example here.

The above scenario has become commonplace in our culture:  irrational skepticism of experts, indignation regarding inconvenient facts, bravado overriding knowledge, preference for superficial harmony over constructive dialogue.  Everybody is an expert.  And, expertise no longer requires experience, credentials, or factual information.   


Democratization of post-truthism

The anti-empirical, anti-intellectual, anti-rational posture of our country’s loudest political voices has been extensively discussed in the media.  Skepticism of authority — already at high levels in America’s founding culture of individualism — has lately been taken to an absurdist extreme by Trump’s repudiation of experts on national cybersecurity, foreign policy, nuclear armament, education metrics, trade economics and climate science.  It’s not new… but it’s newly, exceptionally dangerous.

Moreover, nowadays the problem is so diffused through society that the same individuals who ridicule post-truthism in politics also participate in it.  In that same circle of left-leaning, college-educated hipsters, I recently fielded a counter-factual rant about how dumb poor people caused the 2007 real estate crisis, and a vague diatribe against international trade shouted with absolute conviction by someone who had never heard of non-tariff barriers or comparative advantage.

Sometimes people knowingly revel in their own provocative ignorance.  Sometimes they confuse their own ignorance with that of their opponent.  In response, I often find myself skipping the slow build of empirical arguments in favor of a shortcut appeal to my own authority (e.g., advanced degree in economics), and nonetheless still failing to persuade – even when I’m trying to convince someone not to acknowledge a particular point of view, but to engage in a fact-based dialogue.  Many educated people struggle to distinguish meta-level from object-level, opinion from fact, and listening from agreeing.

Trump is fond of saying that “nobody knows what’s going on”.  And, so, too, are progressive hipsters on a weekend ski trip.  My purportedly liberal friends un-ironically quote their political nemesis, as a retort to anyone who challenges an opinion in which they are emotionally invested.  People who used to end conversations with a dismissive “whatever” (i.e., I don’t care to discuss this issue) now say “nobody knows” (i.e., I don’t believe this issue can be discussed).  They abrogate discussion before asking questions or ingesting facts.


Blame the Protestants

The 2nd-century gnostics famously valued private revelation over formal study.  This idea of theirs also crops up in the New Testament – though gnosticism was soon deemed heretical and disappeared for 14 centuries until the Protestants re-upped some of its philosophy using different vocabulary.  The 16th-century Protestant Reformation disintermediated Christianity, valuing the capacity of individuals to interpret scripture.  But it did so with ponderous intellectualism that didn’t abandon empiricism.

The Reformation set the stage for the 18th-century Enlightenment, and in turn for late 20th-century postmodernism and its pop-culture simplification into absolute relativism.  If everything is relative, then nothing is knowable, and all perception is embedded in a questionable paradigm that obscures true reality.  Hence the ubiquitous conversation-ender common today among millennials: “Well, we can’t really know”.  Shrug.

Another personal anecdote:

A friend jumps down my throat when I mention that the Colorado Front Range region has the biggest aerospace business cluster in the country.  “I’m sure lots of cities could say that in some way.”   But, no, they can’t say that.  Facts about number of employees, investment dollars, and company valuations show that the Denver-Boulder-Colorado Springs metropolitan area has the most aerospace activity.  The state of California also has a lot, which is split between the Bay Area and LA-San Diego. 

The truth is that sometimes there just isn’t room for subjectivity.  But, postmodernism’s legacy of logical nihilism provokes uncritical thinkers to arbitrarily assert subjectivity to discredit inconvenient facts.  People do this even (as in the above case about industry clusters) when the stakes are trivial and the facts innocuous.  The contrived, pseudo-intellectual affect that asserts subjectivity to quash dialogue is what increasingly passes for critical reasoning.

The 20th-century American-made invention of Christian fundamentalism (which we exported globally similarly to how we spread Coca-Cola and American pop culture), took the Protestant spirit of interpretive disintermediation to an absurdist extreme.  The loud voices of the fundamentalist-influenced political right and alt-right have successfully promulgated and normalized apologetics, harmonization, decontextualization, cherry-picking, circular reasoning, and general sophistry throughout our culture.  Now the most powerful head of state on our planet is overtly proffering “alt-facts”.  His representatives insist that the proverbial emperor is wearing clothes — and much of the public is willing to agree, even as they behold a plainly naked emperor. 

So today, we rational intellectual empiricists living within the American Protestant Christian paradigm ironically find ourselves longing for the magisterium – to bound the sea of sub-rational tribespeople clamoring with self-serving and inconsistent demands.  Our 2500-year-long Judeo-Christian framing vision of one voice in the figurative wilderness, pointing out the path of peace and righteousness to humanity, has been supplanted by a cacophony of voices screaming out from a vacuum.

Those gnostics also said ignorance is a nightmare and knowledge brings salvation.  That worldview heavily influenced Paul, whose writings account for 17% of the New Testament word count (the most content from any one author).  Willful ignorance is not a Biblical value.  Yet, it is clearly a value of the heavily-Christian, American political right.  Distressingly, it has also become a value shared by anti-empirical, anti-expert, anti-rational voices of the political center and left.   



The ubiquity of smug, self-congratulatory reveling in ignorance means that (at the risk of smug, self-congratulatory reveling in obscure knowledge on my part…but I’ll sacrifice intellectual fairness to make this point) I know few in my own acquaintance circle who would recognize (or, most importantly, show interest in) any of the layers of meaning in the title of this essay.  How many would recognize the original Latin phrase (vox clamantis in deserto), or know what that means in English (a voice crying out in the wilderness), or what it’s a quotation of (Isaiah 40:3), and what it meant in that first context (God shows us the way), or where it was cited a few centuries later (Gospel of Mark 1:2-3) and a half century later again (Gospel of John 1:22-23) and reinterpreted to mean at that point (John-the-Baptist setting the stage for Jesus).  Who would be intrigued by how Bible text excerpts like this have been re-purposed over time to disparate ends (in this case, to endorse feudalism, religious devotion, environmental activism)?  How much recognition value is there regarding where the phrase is used today in America (headlines by pun-happy journalists; Dartmouth College motto), or know what it has been intended to mean in that latter context, either at first (hegemonic schooling of Native Americans in the colonial New England wilderness), or at present (education as triumph of reason over ignorance).  

Posted in 5-10 min read, Religion, Social issues, [All posts]

Fertility probability and age

4 min read

Men and women alike often have an astonishing misapprehension of fertility probability.  

Part of the problem is our society’s anti-scientific cult of optimism (e.g., “I’m baselessly certain your serious problem will magically turn out fine. Shut up and stop making rational plans based on empirical data.”).  Part of the problem is also a curious lack of well-presented, easily-digestible data. 

Charts of Monthly Conception Probability by Age are readily available online.  But, that raw data is not very useful.  One really needs to understand the Probability of Healthy Birth by Age. 

To figure that out, you’d have to do the following calculations:

  • 1 – Monthly Conception Probability by Age = Monthly Failure Rate by Age
  • 1 – Monthly Failure Rate by Age ^ # of Months Tried = Theoretical Probability of Conception by Age
  • Multiply by the Probability of Male Infertility
  • Multiply by the Probability of Female Physiological Fertility Barriers
  • Multiply by the Probability of Miscarriage by Age
  • Multiply by the Probability of Chromosomal Abnormalities by Age

The vastly more useful result:
Conclusion #1:  Fertility begins declining at a younger age than most people think. 
Conclusion #2:  Rejecting one woman in favor of a younger one for the sole reason of presumed fertility is a risky wager.  Test this out yourself in our handy calculator:

Fertility probability calculator
Woman A
Woman B
Age today
Please input an integer from 20 to 48
For Woman B, please input an integer from 20 to 48 that is equal to or less than your input for Woman A
Probability of live healthy birth within 33 months from today (24 monthly attempts with a man of unknown fertility status) 30% 71%
Probability that it's a MISTAKE to reject Woman A in favor of Woman B purely due to age-based fertility assumptions. 60%

Yes, you increase your odds with a younger woman.  But the probability you’ve made a mistake is often quite high.  Why is it so often a bad wager to reject the older woman for the younger one?

  1. Infertility of 30-something women is higher than most people think. You’re not trading up in probabilities as much as you might think.  (Conclusion #1 above)
  2. Infertility rate of men is not zero.  If the man is infertile, then the woman’s age never mattered.  (Therefore, men should test themselves BEFORE they ever form any fertility-related age preferences for their mate search.)  
  3. Though far lower than most people think, the fertility rate of 40-something women is not zero. Note that Trump had only a 5-20% chance of winning the election, and yet he won.  If there’s a 20% chance of rain in the forecast, you probably bring a jacket.

Other points that surprise many people:

  • Any birth after age 45-ish probably used a donor egg (or the woman’s own previously frozen eggs). It shouldn’t be surprising that new parents don’t often volunteer their use of donor eggs.  Also, for every miraculous older woman birth you read about in US Weekly, there are hundreds of cases you don’t hear about where it wasn’t possible.
  • Sterility often occurs 5-10 years before menopause. Menstruation in a 40-something doesn’t necessarily mean she can conceive.
  • IVF doesn’t change the odds unless you use a donor egg or donor sperm
  • Male infertility doesn’t appear to be age-related (though chromosomal abnormalities may go up with older fathers)
  • For ~15% of unable-to-conceive couples, the cause is not age.  The man’s fertility is the culprit, and/or a physiological problem in the woman’s body.  
  • Overcoming fertility challenges is prohibitively expensive for most people. It’s all out-of-pocket.  It’s not unheard of to have a $300,000 baby.  New parents don’t tend to volunteer the true all-in costs:
    • Fertility testing: ~$1k
    • Freezing eggs: ~$12k
    • Insemination with donor sperm: ~$2k
    • IVF and implantation
      • own previously-frozen egg: ~$15k
      • donor egg, own womb: ~$30k
      • donor egg, surrogate womb: ~$100k

This is yet another case where math literacy concretely impacts people’s lives.  Innumeracy of the general population combines with poor data presentation by experts to cause real harm.  People routinely cheerlead 30- and 40-something single women with false platitudes that they have plenty of time to find a mate and have biological children.  People also routinely hand-waive away women’s known fertility test results with non-representative and irrelevant hearsay accounts of middle-aged births.  Logic and data are sacrificed to preserve the unaffected party’s comfortable emotional disengagement.  Once well-meaning people let go of data-blind optimism regarding biology, they often persist with the related, second-order “you can always adopt” platitude – though that, too, often proves false (for legal and financial reasons) for would-be mothers.

Posted in <5 min read, Decision quality, Interactive calculators, Sex and relationships, Social issues, [All posts]

How representative is your group?: Statistical identification of selection bias

How representative of the US population is your group:  your friends?  your employees or work colleagues?  your classmates?  your dating history?   

This calculator is a starting point for thinking about this topic.  It’s difficult to know how proportionally representative a group of people is, because (a) we don’t usually know the overall population proportion numbers offhand, and (b) most of us don’t know how to mathematically determine whether a difference in two percentages is statistically significant, i.e., whether it is unlikely to be due to random chance.   

The default numbers entered below reflect the men I phave dated.  I built this calculator in response to the January 2016 Muslim Ban (which I fervently oppose).  I wanted to see whether my history of never having dated a Muslim man implies unconscious bias on my part, based on the numbers.  It turns out the US population of Muslims is too small to answer this question definitively – so it remains solely up to my own introspection to assess the possible causes, and whether they are acceptable or whether they should motivate change.  Note that, in contrast, though the US population of Jews is similarly small, we can calculate an answer because it’s over-represented in my dating pool.  Additionally, it is very telling that non-whites are not actually over-represented in my group, despite the vocal criticism I field in conservative Colorado for “always dating brown guys”.  Perceptions are so often corrected by looking at hard data!  

What to do:  (1) Identify a pool you want to test.  (2) Enter the total number of people in the group, and also the number of people fitting each category.  Note that people often fit into multiple categories, and not every category needs to be filled.  (3)  Take note who is under- and over-represented in your group!   I’ve used an 80% confidence level to define significance here.

For further consideration:  

  • How would your group under-/over-representation results change if you compared to your city, instead of the whole US population?  What is the appropriate reference group for your case?
  • Do the under-represented categories reflect a known source of selection bias?  Is there another partial explanation for why the group doesn’t exactly reflect the population at large?  Is that explanation an ethically defensible one?
  • Is over-representation necessarily a good thing, meaning a lack of bias?  Who is being squeezed out by the over-represented category?
Proportional representation of identity groups in a pool of people
  Number of people in my group United States population My group Number of people over/(under)-represented by my group Likelihood that the difference is due to random chance
Women 51% % %
LGBTQ 4% 2%% (1) 41%%
Muslim 1.0% 2%% (1) 46%%
Jewish 1.4% 7%% 3 0%%
Black 14% 7%% (4) 15%%
Hispanic 17% 15%% (1) 63%%
Non-white (Asian, Indian, black, native) + Hispanic 37% 36%% (0) 92%%
Born outside US 15% 33%% 10 0%%
Military/veteran 9% 2%% (4) 6%%
Disabled 19% 0%% (10) 0%%
English not dominant language 21% 22%% 0 88%%
White-collar career 40% 87%% 26 0%%
Redhead 2% 4%% 1 39%%
Alcoholic 7% 5%% (1) 65%%
My group UNDER-represents these people:
My group OVER-represents these people:
Posted in 5-10 min read, Interactive calculators, Social issues, [All posts]