The Ash Twins Blog

The New York Times summarizes the results of an Archives of Internal Medicine article (subscription required) documenting the widespread funding of residency training programs by pharmaceutical companies:

More than half of the nation’s medical residency programs to train doctors in internal medicine accepted financial support from the drug industry, even though three-fourths of the programs’ directors said accepting the aid was “not desirable,” a survey found.

At issue are potential conflicts of interest as the residency programs accept drug company support to help train tens of thousands of new doctors at a point in their careers when they are beginning to prescribe drugs, according to the survey report. . . .

The survey, conducted in 2006 and 2007, found that drug companies paid for educational materials like pocket guides in 83 percent of the programs that accepted support, meals in 90 percent, office supplies in 68 percent and drug samples in 57 percent.

Medical residency programs in the southern United States were much more likely to accept the industry largess than those in the Northeast — 72 percent to 47 percent. The overall rate of accepting drug industry financing was 55 percent, but that was down from the 88 percent level reported in a 1990 survey. . . .

Other surveys have indicated that medical residents do not think that their own actions are influenced by industry gifts, but that they do think that their colleagues are influenced. Surveys have also shown that gifts as small as a pen or food can influence prescribing patterns.

At the New York Times, Stanley Fish discusses a new book by Stephen Smith on the hollowness of secular arguments in defending normative positions:

[The debate about religious and secular reasoning] takes another turn if one argues, as the professor of law Steven Smith does in his new book, “The Disenchantment of Secular Discourse,” that there are no secular reasons, at least not reasons of the kind that could justify a decision to take one course of action rather than another.It is not, Smith tells us, that secular reason can’t do the job (of identifying ultimate meanings and values) we need religion to do; it’s worse; secular reason can’t do its own self-assigned job — of describing the world in ways that allow us to move forward in our projects — without importing, but not acknowledging, the very perspectives it pushes away in disdain. . . .

Once the world is no longer assumed to be informed by some presiding meaning or spirit (associated either with a theology or an undoubted philosophical first principle) and is instead thought of as being “composed of atomic particles randomly colliding and . . . sometimes evolving into more and more complicated systems and entities including ourselves” there is no way, says Smith, to look at it and answer normative questions, questions like “what are we supposed to do?” and “at the behest of who or what are we to do it?” . . .

Secular reason — reason cut off from any a priori stipulations of what is good and valuable — can take us a long way. We’ll do fine as long as we only want to find out how many X’s or Y’s there are or investigate their internal structure or discover what happens when they are combined, and so forth.

But the next step, the step of going from observation to evaluation and judgment, proves difficult, indeed impossible, says Smith, for the “truncated discursive resources available within the downsized domain of ‘public reason’ are insufficient to yield any definite answer to a difficult issue — abortion, say, or same sex marriage, or the permissibility of torture . . . .” If public reason has “deprived” the natural world of “its normative dimension” by conceiving of it as free-standing and tethered to nothing higher than or prior to itself, how, Smith asks, “could one squeeze moral values or judgments about justice . . . out of brute empirical facts?” . . . This is the cul de sac Enlightenment philosophy traps itself in when it renounces metaphysical foundations in favor of the “pure” investigation of “observable facts.” It must somehow bootstrap or engineer itself back up to meaning and the possibility of justified judgment, but it has deliberately jettisoned the resources that would enable it do so.

Nevertheless, Smith observes, the self-impoverished discourse of secular reason does in fact produce judgments, formulate and defend agendas, and speak in a normative vocabulary. How is this managed? By “smuggling,” Smith answers.

. . . the secular vocabulary within which public discourse is constrained today is insufficient to convey our full set of normative convictions and commitments. We manage to debate normative matters anyway — but only by smuggling in notions that are formally inadmissible, and hence that cannot be openly acknowledged or adverted to.

The notions we must smuggle in, according to Smith, include “notions about a purposive cosmos, or a teleological nature stocked with Aristotelian ‘final causes’ or a providential design,” all banished from secular discourse because they stipulate truth and value in advance rather than waiting for them to be revealed by the outcomes of rational calculation. But if secular discourse needs notions like these to have a direction — to even get started — “we have little choice except to smuggle [them] into the conversations — to introduce them incognito under some sort of secular disguise.”

And how do we do that? Well, one way is to invoke secular concepts like freedom and equality — concepts sufficiently general to escape the taint of partisan or religious affiliation — and claim that your argument follows from them. But, Smith points out (following Peter Westen and others), freedom and equality — and we might add justice, fairness and impartiality — are empty abstractions. Nothing follows from them until we have answered questions like “fairness in relation to what standard?” or “equality with respect to what measures?” — for only then will they have content enough to guide deliberation.

That content, however, will always come from the suspect realm of contested substantive values. Is fairness to be extended to everyone or only to those with certain credentials (of citizenship, education, longevity, etc.)? Is it equality of opportunity or equality of results (the distinction on which affirmative action debates turn)? Only when these matters have been settled can the abstractions do any work, and the abstractions, in and of themselves, cannot settle them. Indeed, concepts like fairness and equality are normatively useless, except as rhetorical ornaments, until they are filled in by some partisan or ideological or theological perspective, precisely the perspectives secular reason has forsworn. Therefore, Smith concludes, “conversations in the secular cage could not proceed very far without smuggling.”

I agree with Fish and Smith, as far as they go. But I think they are wrong that normative arguments based on secular premises are just religious arguments in disguise. Neither secular nor religious values provide a coherent backbone for moral reasoning — there must be something lurking underneath, and I think that answer is found in human psychology. Humans are evolved to to have unshakable intuitions about right and wrong. Arguments — whether secular or religious — are usually just window dressing.

In a review of “the new synthesis” in moral psychology, Haidt describes the following remarkable experiment:

We easily switch into “intuitive prosecutor” mode (24), using our reasoning capacities to challenge people’s excuses and to seek out—or fabricate—evidence against people we don’t like. Thalia Wheatley and I (12) recently created prosecutorial moral confabulations by giving hypnotizable subjects a  post-hypnotic suggestion that they would feel a flash of disgust whenever they read a previously neutral word (“take” for half the subjects; “often” for the others). We then embedded one of those two words in six short stories about moral violations (e.g., accepting bribes or eating one’s dead pet dog) and found that stories that included the disgust-enhanced word were condemned more harshly than those that had no such flash.

To test the limiting condition of this effect, we included one story with no wrongdoing, about Dan, a student council president, who organizes faculty-student discussions. The story included one of two versions of this sentence: “He [tries to take]/[often picks] topics that appeal to both professors and students in order to stimulate discussion.” We expected that subjects who felt a flash of disgust while reading this sentence would condemn Dan (intuitive primacy), search for a justification (post-hoc reasoning), fail to find one, and then be forced to override their hypnotically induced gut feeling using controlled processes. Most did. But to our surprise, one third of the subjects in the hypnotic disgust condition (and none in the other) said that Dan’s action was wrong to some degree, and a fewcame upwith the sort of post-hoc confabulations that Gazzaniga reported in some split-brain patients, such as “Dan is a popularity-seeking snob” or “It just seems like he’s up to something.” They invented reasons to make sense of their otherwise inexplicable feeling of disgust.

Humans have exceptionally large brains relative to their body size (about 2% of body mass). Perhaps surprisingly, some animals have brains which are even larger relative to body size. Take the mormyrid electric fish (better known as the elephant nose), whose brain takes up 3% of its body mass. The majority of this size increase is represented by a pornographically enlarged valvula, the medial lobe of the cerebellum (Fig. 1). In this species, the valvula takes on complex electrosensory and electromodulatory functions.

Fig.1 Sagittal section through the brain of a Mormyrid electric fish. Note the exceptionally large valvula dorsally. TH - thalamus, hyp - hypothalamus, Dm - dorsalis pars medialis, LC - caudal lobe, LP - posterior lateral line lobe, lfb - lateral forebrain bundle. Courtesy Prechtl et al. (1998).

In animals, muscles are electrically controlled: influxes and effluxes of electrically charged ions into myofiber cells drive the contraction and relaxation of muscles. Subsequently, animal motion generates electric fields. Due to the high conductance of water, these electrical fields can be sensed by marine life. Electrosensation allows fish to localize other animals in three dimensions, either for help in interception (in the case of sharks) or evasion (in the case of mormyrids). This sixth sense provides a high-speed complement to the slower-timescale chemosensation (i.e. smell).

In the case of mormyrids, not only can these animals sense electric fields in the nearby water, they can also induce electric fields around them. This ability aids navigation in turbid waters and can serve as a jamming signal to misdirect electrosensing carnivores. The valvula is believed to compute the fearsome biophysical differential equations necessary to perform this stealth operation.

Source: Striedter 2008 Principles of Brain Evolution

The common crow is a surprisingly intelligent creature. Consider this experiment: Catch a crow and wait until he is hungry. Place a tasty treat in a cup narrow enough that the crow won’t be able to fit his beak into it. Then, give the crow a straightened paper clip.

Before long, the hungry crow will pick up the paper clip and jab it down into the cup, attempting to impale the treat. If the treat is so slippery that this spearing strategy won’t work, the crow will eventually curve the end of the paper clip to form a hook. He’ll fish out the treat and claim his prize.

All of this with only a rudimentary cerebral cortex. After reptiles and mammals diverged, mammals evolved the layered-and-folded structure known as the neocortex, the incredible size of which in primates is believed to underlie problem solving skills. Reptiles and subsequently birds, on the other hand, evolved a unique deep brain nucleus called the dorsal ventricular ridge, which has no obvious homologue in mammals. In intelligent birds (like corvids and parrots), the dorsal ventricular ridge is massive, and has evolved connections, organization, and functions surprisingly similar to that of the neocortex in mammals.

Source: Striedter (2008) Principles of Brain Evolution

Observe the efforts of Christian fanatics on the Texas education board to reduce their emotional uncertainty about the divine purpose set forth by God for Texans, Americans, and mankind:

Public education has always been a battleground between cultural forces; one reason that Texas’ school-board members find themselves at the very center of the battlefield is, not surprisingly, money. The state’s $22 billion education fund is among the largest educational endowments in the country. Texas uses some of that money to buy or distribute a staggering 48 million textbooks annually — which rather strongly inclines educational publishers to tailor their products to fit the standards dictated by the Lone Star State. California is the largest textbook market, but besides being bankrupt, it tends to be so specific about what kinds of information its students should learn that few other states follow its lead. Texas, on the other hand, was one of the first states to adopt statewide curriculum guidelines, back in 1998, and the guidelines it came up with (which are referred to as TEKS — pronounced “teaks” — for Texas Essential Knowledge and Skills) were clear, broad and inclusive enough that many other states used them as a model in devising their own. And while technology is changing things, textbooks — printed or online —are still the backbone of education.The cultural roots of the Texas showdown may be said to date to the late 1980s, when, in the wake of his failed presidential effort, the Rev. Pat Robertson founded the Christian Coalition partly on the logic that conservative Christians should focus their energies at the grass-roots level. One strategy was to put candidates forward for state and local school-board elections — Robertson’s protégé, Ralph Reed, once said, “I would rather have a thousand school-board members than one president and no school-board members” — and Texas was a beachhead. Since the election of two Christian conservatives in 2006, there are now seven on the Texas state board who are quite open about the fact that they vote in concert to advance a Christian agenda. “They do vote as a bloc,” Pat Hardy, a board member who considers herself a conservative Republican but who stands apart from the Christian faction, told me. “They work consciously to pull one more vote in with them on an issue so they’ll have a majority.” . . .

The one thing that underlies the entire program of the nation’s Christian conservative activists is, naturally, religion. But it isn’t merely the case that their Christian orientation shapes their opinions on gay marriage, abortion and government spending. More elementally, they hold that the United States was founded by devout Christians and according to biblical precepts. This belief provides what they consider not only a theological but also, ultimately, a judicial grounding to their positions on social questions. When they proclaim that the United States is a “Christian nation,” they are not referring to the percentage of the population that ticks a certain box in a survey or census but to the country’s roots and the intent of the founders.

The Christian “truth” about America’s founding has long been taught in Christian schools, but not beyond. Recently, however — perhaps out of ire at what they see as an aggressive, secular, liberal agenda in Washington and perhaps also because they sense an opening in the battle, a sudden weakness in the lines of the secularists — some activists decided that the time was right to try to reshape the history that children in public schools study. Succeeding at this would help them toward their ultimate goal of reshaping American society. As Cynthia Dunbar, another Christian activist on the Texas board, put it, “The philosophy of the classroom in one generation will be the philosophy of the government in the next.” . . .

[Board member Don] McLeroy is a robust, cheerful and inexorable man, whose personality is perhaps typified by the framed letter T on the wall of his office, which he earned as a “yell leader” (Texas A&M nomenclature for cheerleader) in his undergraduate days in the late 1960s. “I consider myself a Christian fundamentalist,” he announced almost as soon as we sat down. He also identifies himself as a young-earth creationist who believes that the earth was created in six days, as the book of Genesis has it, less than 10,000 years ago. He went on to explain how his Christian perspective both governs his work on the state board and guides him in the current effort to adjust American-history textbooks to highlight the role of Christianity. “Textbooks are mostly the product of the liberal establishment, and they’re written with the idea that our religion and our liberty are in conflict,” he said. “But Christianity has had a deep impact on our system. The men who wrote the Constitution were Christians who knew the Bible. Our idea of individual rights comes from the Bible. The Western development of the free-market system owes a lot to biblical principles.”

For McLeroy, separation of church and state is a myth perpetrated by secular liberals. “There are two basic facts about man,” he said. “He was created in the image of God, and he is fallen. You can’t appreciate the founding of our country without realizing that the founders understood that. For our kids to not know our history, that could kill a society. That’s why to me this is a huge thing.” . . .

Tom Barber, who worked as the head of social studies at the three biggest textbook publishers before running his own editorial company, says, “Texas was and still is the most important and most influential state in the country.” And James Kracht, a professor at Texas A&M’s college of education and a longtime player in the state’s textbook process, told me flatly, “Texas governs 46 or 47 states.” . . .

[T]he Christian bloc’s notion this year to bring Christianity into the coverage of American history is not, from their perspective, revisionism but rather an uncovering of truths that have been suppressed. “I don’t know that what we’re doing is redefining the role of religion in America,” says Gail Lowe, who became chairwoman of the board after McLeroy was ousted and who is one of the seven conservative Christians. “Many of us recognize that Judeo-Christian principles were the basis of our country and that many of our founding documents had a basis in Scripture. As we try to promote a better understanding of the Constitution, federalism, the separation of the branches of government, the basic rights guaranteed in the Bill of Rights, I think it will become evident to students that the founders had a religious motivation.” . . .

Some conservatives claim that earlier generations of textbooks were frank in promoting America as a Christian nation. It might be more accurate to say that textbooks of previous eras portrayed leaders as generally noble, with strong personal narratives, undergirded by faith and patriotism. As Frances FitzGerald showed in her groundbreaking 1979 book “America Revised,” if there is one thing to be said about American-history textbooks through the ages it is that the narrative of the past is consistently reshaped by present-day forces. Maybe the most striking thing about current history textbooks is that they have lost a controlling narrative. America is no longer portrayed as one thing, one people, but rather a hodgepodge of issues and minorities, forces and struggles. If it were possible to cast the concerns of the Christian conservatives into secular terms, it might be said that they find this lack of a through line and purpose to be disturbing and dangerous. . .

Merely weaving important religious trends and events into the narrative of American history is not what the Christian bloc on the Texas board has pushed for in revising its guidelines. Many of the points that have been incorporated into the guidelines or that have been advanced by board members and their expert advisers slant toward portraying America as having a divinely preordained mission. In the guidelines — which will be subjected to further amendments in March and then in May — eighth-grade history students are asked to “analyze the importance of the Mayflower Compact, the Fundamental Orders of Connecticut and the Virginia House of Burgesses to the growth of representative government.” Such early colonial texts have long been included in survey courses, but why focus on these in particular? The Fundamental Orders of Connecticut declare that the state was founded “to maintain and preserve the liberty and purity of the Gospel of our Lord Jesus.” The language in the Mayflower Compact — a document that McLeroy and several others involved in the Texas process are especially fond of — describes the Pilgrims’ journey as being “for the Glory of God and advancement of the Christian Faith” and thus instills the idea that America was founded as a project for the spread of Christianity. In a book she wrote two years ago, Cynthia Dunbar, a board member, could not have been more explicit about this being the reason for the Mayflower Compact’s inclusion in textbooks; she quoted the document and then said, “This is undeniably our past, and it clearly delineates us as a nation intended to be emphatically Christian.” . . .

The process in Texas required that writing teams, made up mostly of teachers, do the actual work of revising the curriculum, with the aid of experts who were appointed by the board. Two of the six experts the board chose are well-known advocates for conservative Christian causes. One of them, the Rev. Peter Marshall, says on the Web site of his organization, Peter Marshall Ministries, that his work is “dedicated to helping to restore America to its Bible-based foundations through preaching, teaching and writing on America’s Christian heritage and on Christian discipleship and revival.” . . .

Peter Marshall is himself the author of a series of books that recount American history with a strong Christian focus and that have been staples in Christian schools since the first one was published in 1977. (He told me that they have sold more than a million copies.) In these history books, he employs a decidedly unhistorical tone in which the guiding hand of Providence shapes America’s story, starting with the voyage of Christopher Columbus. “Columbus’s heart belonged to God,” he assures his readers, and he notes that a particular event in the explorer’s life “marked the turning point of God’s plan to use Columbus to raise the curtain on His new Promised Land.” . . .

In 1971 — in an era of pot smoking and war protests — the Rev. Jerry Falwell inaugurated Liberty University on one of the city’s seven hills. It was to be a training ground for Christians and a bulwark against moral relativism. In 2004, three years before his death, Falwell completed another dream by founding the Liberty University School of Law, whose objective, in the words of the university’s current chancellor, Jerry Falwell Jr., is “to transform legislatures, courts, commerce and civil government at all levels.”I visited the law-school building in late fall, with the remnants of Hurricane Ida turning the Blue Ridge Mountains skyline into a series of smudges. The building’s crisp, almost militaristic atmosphere bespeaks a seriousness of purpose; and the fact that it houses, as one of its training facilities, the only full-scale replica of the U.S. Supreme Court chamber points to the school’s ambitions.

I had come to sit in on a guest lecture by Cynthia Dunbar, an assistant law professor who commutes to Lynchburg once a week from her home in Richmond, Tex., where she is a practicing lawyer as well as a member of the Texas board of education. Her presence in both worlds — public schools and the courts — suggests the connection between them that Christian activists would like to deepen. The First Amendment class for third-year law students that I watched Dunbar lead neatly merged the two components of the school’s program: “lawyering skills” and “the integration of a Christian worldview.”

Dunbar began the lecture by discussing a national day of thanksgiving that Gen. George Washington called for after the defeat of the British at Saratoga in 1777 — showing, in her reckoning, a religious base in the thinking of the country’s founders. In developing a line of legal reasoning that the future lawyers in her class might use, she wove her way to two Supreme Court cases in the 1960s, in both of which the court ruled that prayer in public schools was unconstitutional. A student questioned the relevance of the 1777 event to the court rulings, because in 1777 the country did not yet have a Constitution. “And what did we have at that time?” Dunbar asked. Answer: “The Declaration of Independence.” She then discussed a legal practice called “incorporation by reference.” “When you have in one legal document reference to another, it pulls them together, so that they can’t be viewed as separate and distinct,” she said. “So you cannot read the Constitution distinct from the Declaration.” And the Declaration famously refers to a Creator and grounds itself in “the Laws of Nature and of Nature’s God.” Therefore, she said, the religiosity of the founders is not only established and rooted in a foundational document but linked to the Constitution. . .

In 2008, Cynthia Dunbar published a book called “One Nation Under God,” in which she stated more openly than most of her colleagues have done the argument that the founding of America was an overtly Christian undertaking and laid out what she and others hope to achieve in public schools. “The underlying authority for our constitutional form of government stems directly from biblical precedents,” she writes. “Hence, the only accurate method of ascertaining the intent of the Founding Fathers at the time of our government’s inception comes from a biblical worldview.”

Then she pushes forward: “We as a nation were intended by God to be a light set on a hill to serve as a beacon of hope and Christian charity to a lost and dying world.” But the true picture of America’s Christian founding has been whitewashed by “the liberal agenda” — in order for liberals to succeed “they must first rewrite our nation’s history” and obscure the Christian intentions of the founders. Therefore, she wrote, “this battle for our nation’s children and who will control their education and training is crucial to our success for reclaiming our nation.” . . .

The board has the power to accept, reject or rewrite the TEKS, and over the past few years, in language arts, science and now social studies, the members have done all of the above. Yet few of these elected overseers are trained in the fields they are reviewing. “In general, the board members don’t know anything at all about content,” Tom Barber, the textbook executive, says. Kathy Miller, the watchdog, who has been monitoring the board for 15 years, says, referring to Don McLeroy and another board member: “It is the most crazy-making thing to sit there and watch a dentist and an insurance salesman rewrite curriculum standards in science and history. Last year, Don McLeroy believed he was smarter than the National Academy of Sciences, and he now believes he’s smarter than professors of American history.” . . .

To give an illustration simultaneously of the power of ideology and Texas’ influence, Barber told me that when he led the social-studies division at Prentice Hall, one conservative member of the board told him that the 12th-grade book, “Magruder’s American Government,” would not be approved because it repeatedly referred to the U.S. Constitution as a “living” document. “That book is probably the most famous textbook in American history,” Barber says. “It’s been around since World War I, is updated every year and it had invented the term ‘living Constitution,’ which has been there since the 1950s. But the social conservatives didn’t like its sense of flexibility. They insisted at the last minute that the wording change to ‘enduring.’ ” Prentice Hall agreed to the change, and ever since the book — which Barber estimates controlled 60 or 65 percent of the market nationally — calls it the “enduring Constitution.”

Texas’s state education board is the most influential determinant of the textbooks that get selected in American public schools:

If you’re creating a new textbook, therefore, you start by scrutinizing “Texas Essential Knowledge and Skills” (TEKS). This document is drawn up by a group of curriculum experts, teachers, and political insiders appointed by the 15 members of the Texas Board of Education, currently five Democrats and ten Republicans, about half of whom have a background in education. TEKS describes what Texas wants and what the entire nation will therefore get.

Texas is truly the tail that wags the dog. There is, however, a tail that wags this mighty tail. Every adoption state allows private citizens to review textbooks and raise objections. Publishers must respond to these objections at open hearings.

In the late ’60s, a Texas couple, Mel and Norma Gabler, figured out how to use their state’s adoption hearings to put pressure on textbook publishers. The Gablers had no academic credentials or teaching background, but they knew what they wanted taught — phonics, sexual abstinence, free enterprise, creationism, and the primacy of Judeo-Christian values — and considered themselves in a battle against a “politically correct degradation of academics.”

Expert organizers, the Gablers possessed a flair for constructing arguments out of the language of official curriculum guidelines. The nonprofit corporation they founded 43 years ago, Educational Research Analysts, continues to review textbooks and lobby against liberal content in them.

The Gablers no longer appear in person at adoption hearings, but through workshops, books, and how-to manuals, they trained a whole generation of conservative Christian activists to carry on their work.

Citizens also pressure textbook companies at California adoption hearings. These objections come mostly from such liberal organizations as Norman Lear’s People for the American Way, or from individual citizens who look at proposed textbooks when they are on display before adoption in 30 centers around the state.

Concern in California is normally of the politically correct sort — objections, for example, to such perceived gaffes as using the word Indian instead of “Native American.” To make the list in California, books must be scrupulously stereotype free: No textbook can show African Americans playing sports, Asians using computers, or women taking care of children. Anyone who stays in textbook publishing long enough develops radar for what will and won’t get past the blanding process of both the conservative and liberal watchdogs.

This whole article about American textbooks is interesting/depressing: http://www.edutopia.org/textbook-publishing-controversy

Writing for the New York Times, Stanley Fish offers the following useful commentary on the recent Citizens United Supreme Court decision:

The justices in the Citizens United majority are more in the Brandeis camp. They believe that free trade in ideas with as many trading partners as wish to join in will inevitability produce benign results for a democratic society. And since their confidence in these results is a matter of theoretical faith and not of empirical or historical observation — free speech is for them a religion with long-term rewards awaiting us down the road — they feel no obligation to concern themselves with short-term calculations and predictions. . . .

The idea that you may have to regulate speech in order to preserve its First Amendment value is called consequentialism. For a consequentialist like Stevens, freedom of speech is not a stand-alone value to be cherished for its own sake, but a policy that is adhered to because of the benign consequences it is thought to produce, consequences that are catalogued in the usual answers to the question, what is the First Amendment for?

Answers like the First Amendment facilitates the search for truth, or the First Amendment is essential to the free flow of ideas in a democratic polity, or the First Amendment encourages dissent, or the First Amendment provides the materials necessary for informed choice and individual self-realization. If you think of the First Amendment as a mechanism for achieving goals like these, you have to contemplate the possibility that some forms of speech will be subversive of those goals because, for instance, they impede the search for truth or block the free flow of ideas or crowd out dissent. And if such forms of speech appear along with their attendant dangers, you will be obligated — not in violation of the First Amendment, but in fidelity to it — to move against them, as Stevens advises us to do in his opinion.

The opposite view of the First Amendment — the view that leads you to be wary of chilling any speech even if it harbors a potential for corruption — is the principled or libertarian or deontological view. Rather than asking what is the First Amendment for and worrying about the negative effects a form of speech may have on the achievement of its goals, the principled view asks what does the First Amendment say and answers, simply, it says no state abridgement of speech. Not no abridgment of speech unless we dislike it or fear it or think of it as having low or no value, but no abridgment of speech, period, especially if the speech in question is implicated in the political process. . .

The majority’s purity of principle is somewhat alloyed when it upholds the disclosure requirements of the statute it is considering on the reasoning that the public has a right to be informed about the identity of those who fund a corporation’s ads and videos. “This transparency enables the electorate to make informed decisions.”

Justice Thomas disagrees. The interest “in providing voters with additional relevant information” does not, he says, outweigh “’the right to anonymous speech.’” The majority’s claim that disclosure requirements do not prevent anyone from speaking is, Thomas declares, false; those who know that their names will be on a list may refrain from contributing for fear of reprisals and thus be engaged in an act of self-censoring. The effect of disclosure requirements, he admonishes, is “to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights.”

Only Thomas has the courage of the majority’s declared convictions. Often the most principled of the judges (which doesn’t mean that I always like his principles), he is willing to follow a principle all the way, and so he rebukes his colleagues in the majority for preferring the value of more information to the value the First Amendment mandates — absolutely free speech unburdened by any restriction whatsoever including the restriction of having to sign your name. Thomas has caught his fellow conservatives in a consequentialist moment.

The consequentialist and principled view of the First Amendment are irreconcilable. Their adherents can only talk past one another and become increasingly angered and frustrated by what they hear from the other side. This ongoing soap opera has been the content of First Amendment jurisprudence ever since it emerged full blown in the second decade of the 20th century. Citizens United is a virtual anthology of the limited repertoire of moves the saga affords.

Nelison et al (2009) find convincing evidence of costly fairness in a clever ultimate-game variant:

We investigated if responders accept a 50–50 split in a modified version of the ultimatum game, in which rejection yields a higher payoff (€7) than accepting the equal offer (€5). Therefore, the decision to accept the 50–50 split in this modified ultimatum game cannot be perceived as a self-interest act, as opposed to the standard game, in which acceptance may reflect resignation in the knowledge that the equal split is the best one can expect. A substantial proportion [55%] of responders accepts the equal split in this modified game (Study 1), which clearly establishes egalitarian preferences. Further studies show that the willingness to accept is not an artifact of indifference towards the extra payoff (Study 2), but reflects true concerns for proposers’ outcomes (Study 3).

Salon’s Tom Engelhardt makes a worthwhile observation:

Strange, isn’t it, that the debate about hundreds of billions of dollars in healthcare costs in Congress can last almost a year, filled with turmoil and daily headlines, while a $636 billion defense budget can pass in a few days, as it did in late December, essentially without discussion and with nary a headline in sight?