The New Republic

In an earlier posting on Open University, I suggested that we have, as a society, strange, even bizarre, attitudes toward risk. That is, as is well known, we overestimate the risks of certain events, sometime to the point of panic, even as we underestimate others, to our severe detriment. One recent event underscored the former: A couple of weeks ago, 20,000 international travelers were in effect stranded in their planes and delayed admission to the US, for up to nine hours, because of a computer malfunction that made it impossible to check their names against lists of potential terrorists. "The vast majority of people do not pose a security threat, [said a spokesperson for the United States Customs,] but it only takes one. Obviously a lot of innocent folks have been detained, and it is regrettable." (See the August 12 story by Ari Bloomekatz, Ron-Gong Lin II, and Deborah Schoch, "14 Hours Later, LAX Clears Last Stranded Passengers", in the L.A. Times.) "Regrettable," in this context, has no operational value, since it's obviously the case that the United States sees nothing truly problematic about putting, say, 19,999 innocent travelers to significant inconvenience, stranding them on planes with no food, etc., because, let us stipulate, one "terrorist" might have gotten through.

One is curious about the stopping point of such logic. Most of us who believe that it is better for 10 guilty people to be freed than for one innocent person to be convicted would draw the line, I suspect, at 500 guilty people and perhaps 100 or even 50. But we seem incapable of having a rational discussion about what risk we're going to have to bear once someone whispers the magic words "war on terrorism." The LAX incident, of course, didn't involve the suppression of civil liberties in a traditional sense. That may be relevant to lawyers, but I don't know how important it is to non-lawyers. It simply imposed, let's assume, approximately 100,000 hours of significant inconvenience (even assuming that no one missed connections, family events, nonrefundable concerts, etc.) on 20,000 people, assuming an average of five hours delay, in order to guard against the hypothetical admission of even a single "terrorist."

So what's an example of a potential risk we don't want to talk about? Not surprisingly, my stock example is the risk of Dick Cheney's becoming President because he is an "entrenched" vice-president, i.e., impervious to being dismissed by the President or, more to the point, gotten rid of, immediately, through an up-or-down vote of "no confidence" by two-thirds of Congress meeting together. (Impeachment is a spectacularly inappropriate weapon with regard to Cheney: it would take too long and become mired in a thoroughly and completely irrelevant discussion of what counts as a "high crime and misdemeanor.") Let me suggest that the threat to the United States (and the entire world) posed by Dick Cheney's possible presidency is far, far higher than the potential risk posed by a single terrorist who is able to get through the LAX airport on that particular day.

One problem, of course, is that we actually don't know the likely probability of Cheney's becoming President. Seven (out of 43) presidents have died in office, but it's been a long 43 years since that happened. So it seems that one would want to set the odds as lower than 1 in 7. But what exactly are they? According to the vital statistics compiled by the United States Center for Disease Control, although George Bush can expect to live almost another 23 years, there is a 1.2 percent probability of his dying in the next year. He gets superb health care, presumably, but he also is presumably under some measure of stress, and there is always some threat of accident or some untoward event. So it doesn't seem much of a stretch to assign the probability of Cheney's becoming president, prior to January 20, 2009, at roughly 1 in 50, i.e., 2 percent (a significantly higher probability, I suspect, than the odds that any given person stopped at LAX will turn out to be a terrorist).

As it happens, there is a superb article in yesterday's New York Times Magazine by the inestimable Michael Lewis on the basic incompetence of the insurance industry in estimating either the probabilities or the costs of events at the "end of the tail" of frequency distributions, e.g., hurricanes like Katrina, earthquakes like the San Francisco earthquake, huge tsunamis, and the like. As it also happens, there are some absolutely brilliant people working on these problems, and Lewis, with his usual skills in focusing on "heroic" individuals thinking outside the box--everyone interested in notions of "rational analysis" should read Lewis's book on Billy Beane, Moneyball--focuses on some of them and suggests that the market might actually be capable of providing some solutions to the risk of the entire insurance industry being driven into bankruptcy by altogether predictable events like Katrina.

Perhaps Lewis is right, because, after all, money is at stake, and very smart people have an incentive to think long and hard about possibilities that might make them penurious. No such phenomenon seems to operate with regard to the political marketplace, however, with regard to the potential catastrophes caused (and most certainly not prevented) by our basic constitutional structures. Would people who shrug their shoulders at the possibility of a Cheney presidency (or, as much to the point, the future succession to the presidency by a similarly unsuitable person) be so cavalier if their financial advisor says that there is even a 2 percent risk of losing their life's savings, having to sell their home, and forego retirement (not to mention medical care)? Presumably every portfolio ought to have a few stocks with an extremely high beta, but would anyone recommend a non-diversified portfolio of such stocks? (How many of us, after all, would play Russian roulette, even for a million dollars, with a 50-chamber revolver?) Would the answer be notably different, incidentally, if the potential costs were "merely" losing both legs or becoming blind instead of losing one's life?)

The fact is that one doesn't have to be a brilliant mathematician or scientist in order to do what might be termed "political risk analysis." All one needs to do is have a modicum of knowledge both of American (and world) history and of the current players in the game. But it continues to be the case that we prefer to believe "it can't happen here" with regard to untoward possibilities rather than engage in intelligent planning to lessen the risks we face.

A final point: I fully expect ever more responses based on the ostensible wisdom of the Founders and the potential instability attached to any serious discussion of the adequacy of our Constitution and changes taken in response to realizations of inadequacy. But I ask persons with such proclivities to ask themselves what their position would have been in Philadelphia in 1787. We were, after all, then operating under a constitution called the Article of Confederation; most (though certainly not all) people in Philadelphia, believed that the Articles had become dysfunctional, for a variety of reasons, including the impossibility of amending the Articles given the requirement for unanimity (which meant that Rhode Island had a veto over any proposed changes). This didn't stop the framers from writing a brand new Constitution that flagrantly ignored the Articles. How in the world can we honor such men and, at the same time, remain impervious to discussing the potential problems with their legacy? They certainly didn't think they were perfect, elsewise they wouldn't have provided for amendment at all.

Perhaps some of you hoped that my trip to New Zealand would get me off my hobbyhorse. It didn't. One of the wonderful things about New Zealand--a beautiful country with the world's absolutely nicest people--is that they do not operate under a rigid constitution. This means, among other things, that they are capable of having serious discussions about the adequacy of their institutions. Having perceived the inadequacies of a legislature elected entirely in single-member districts on a first-past-the-post basis, they adopted what is basically the German system of proportional representation. It seems to be operating just fine. If it turns out to have problems, I have no doubt that the Kiwis will address them and act accordingly.) We, on the other hand, remain in the grips of Constitution worship and the hope that the next Katrina will veer away from New Orleans (and that Dick Cheney, or some similar successor, won't ever enter the Oval Office with the full powers of the President).

--Sanford Levinson

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