• Leveling the slippery slope

    Andrew Koppelman doesn’t mince words. “The constitutional objections [to health reform] are silly,” he writes. His paper is worth a read, though I doubt it’ll change anybody’s mind. For that reason, I have no interest in arguing the constitutionality question.

    I cite Koppelman’s article so I can highlight my favorite part, which has broad application. It’s about the slippery slope argument, which I detest.

    [One errs in] treating a slippery slope argument as a logical one, when in fact it is an empirical one.

    Frederick Schauer [link] showed over 25 years ago that any slippery slope argument depends on a prediction that doing the right thing in the instant case will in fact increase the likelihood of doing the wrong thing in the danger case. If there is in fact no danger, then the fact that there logically could be has no weight. For instance, the federal taxing power theoretically empowers the government to tax incomes at 100%, thereby wrecking the economy. But there’s no slippery slope, because there is no incentive to do this, so it won’t happen.

    In his article, referenced above, Frederick Schauer does not completely reject slippery slope arguments, but he does warn that they are overused.

    Many slippery slope claims, whether in law or in popular discourse, are widely exaggerated. [... S]lippery slope claims deserve to be viewed skeptically, and the proponent of such a claim must be expected to provide the necessary empirical support. [...] Any slippery slope argument relies at bottom on the empirical observation that rules alone cannot compel behavior.

    In other words, the slippery slope has relevance only in instances for which it isn’t necessary. The government isn’t holding back from mandating broccoli consumption because there is no legislative precedent regulating an “inactivity.” It’s held back because there’s simply no incentive to mandate broccoli eating. If there were, Congress would have already considered it, or ought to. In that case, one need not appeal to a slippery slope, though one certainly could. That is, it’s superfluous.

    If passage of broccoli and insurance mandates did relate, the relationship would not be a causal one. The connection would be through common factors that influence both, not as a matter of common legal justification, but as a matter of common motivation. That is, if an insurance mandate stands at the top of the slope and a broccoli mandate resides down the hill, what would cause the latter to become law isn’t that the former did first. To the extent they’re related, it’s via other routes (like both are part of a broader, common agenda).*

    The figure below makes this intuitive (I hope). Cases for which slippery slope arguments seem to make sense rhetorically (as opposed to legally) are those for which the subsequent action (B in the figure) is demonstrably likely and shares some motivational features with the initial action (A in the figure). If A occurs, then one might say the slippery slope will lead to B. But the reason it leads to B is not really because of A, but because of the set of common factors and influences that motivate and, thereby, cause both A and B. Of course B might occur after A does. Many of the motivations for A and B are the same. One would make a similar argument about A if B had occurred first. The slope tilts both ways! A broccoli mandate would just as reasonably (or not!) set the stage for an insurance mandate. The only way that is possible is if there is no slope at all and we’re on level ground. That we perceive a slope is only due to a misapplication of causality.

    Spread the word: as a device of political rhetoric, the slippery slope has been leveled.

    * By email, Ian Crosby suggests that I’m really debunking the “camel’s nose under the tent” (or maybe it is the “foot in the door”) argument. Based on his critique, I’ve worked out the distinction between that and the slippery slope. To make it clear would require another post and another diagram. I probably won’t get to it, though I’m not sure. The qualitative conclusion doesn’t change: these arguments are good only rarely, if ever.

     

     

     

    Share
    Comments closed
     
    • Rarely do I read a post and say, “I wish I wrote or thought of that.”

      Yes, I say great scribe.

      I also say, terrific mind, keep up the good work.

      But it is infrequent that I am envious and would want the credit.

      This is one time.

      Just killer.

      Sorry to put you on the spot Austin, but I want the counterweights to sound off. Please, constitutional originialists, come hither. Take this one and run…

    • I have always thought of the slippery slope argument as a variant on the strawman argument. I like this explanation much better.

      Steve

    • It seems ironic, then, that the example he chose as a non-slippery-slope – federal tax – is in fact a very good example of a slippery slope. It was very low when it was introduced – 2% on income above $4000 in 1894 – and was done to replace a tariff (“an act to reduce taxation” see http://www.jstor.org/stable/1883633). At that rate it applied to very few people, so it would have been a tax cut for most.

    • According to Wolfram Alpha, that corresponds to approximately $106007.19 2011 US dollars. You can see how far it slipped, and what a straw man Koppelman is attacking. Federal tax seems to have slipped to its limit already with the American public.

    • A $750 mandate to purchase insurance = $750 tax for all + $750 tax credit for having insurance. The payoff matrix is the same. If a $750 tax for all is constitutional and a $750 tax credit is constitutional, how is combining them an unconstitutional unbridled government overreach?

      You may also note that Senator McCain’s plan centered on a $2500 tax
      credit, to be paid for by removing the tax exemption for
      employer-provided insurance. So isn’t a $750 credit a more moderate
      form of the Republican proposal?

    • Spread the word: as a device of political rhetoric, the slippery slope has been leveled.

      Ha Ha, I hope so Dr. Frakt

    • You argue a legal case. But the ‘slippery slope’ argument has been used destructively by conservatives in politics to turn people against health care reform. Whatever your legal interpretations are, the fact is that a large section of the American people bought into the argument that setting ‘best medical practices’ for various illnesses and pathologies will lead to rationing health care and ‘death panels.’

    • The place where there is a real danger is where the slippery slope is behind closed doors. Consider the migration from “enhanced interrogation” from where it was originally promulgated to Abu Ghraib. The danger is not serious where the slope is out in the open and can be fiercely resisted on the merits.

    • All I know is I’m marrying my dog this weekend, all because I read a headline last week about Obama making gay marriage OK. Finally Frodo and I will experience the marital bliss we’ve long imagined.

      • And the SCOTUS Texas Sodomy case in 2003 was not part of a slippery slope movement leading to people today declaring that “Same Sex Marriage” is a “Constitutional Right”…

        Anyone make those claims in 2003?

        How about 1993?

        No slippery slopes?

        The very same arguments used to justify Same Sex Marriage can be used to Poly Marriage (no limit on number of people in the marriage) and Incest marriage

        Accept the arguments for SSM and the justifications for the above inevitably follow…

        And don’t have sex with your dog, unless you want to make a SCOTUS case out of it…

    • I had a post on this in 2008, “Slipperyslopeaphobia”.

      My reasoning for why these arguments are absurd was not complex; it was just that empirically the vast majority are not complete idiots and/or insane. Quoting:

      …what I would call, “Slipperyslopeaphobia”, an irrational or just highly exaggerated fear of slippery-slopes, like if we have any social programs, even ones which are clearly shown to be tremendously high return and sensible, there’s a great risk that we’ll fall down the slope and go to stifling socialism. But history shows with very rare exception that people are able to do a relatively moderate amount of things without then falling to a koo-koo extreme (and when they do it’s usually relatively temporary if not enforced by a brutal undemocratic regime). We’ve had public schooling for about 200 years, and we haven’t gone communist. We’ve had the New Deal more or less for 70 years, again no communist dictatorship. We’ve had some restrictions on free speech and expression always, and we didn’t go down the slope to Stalinism. In fact, we’ve with ups and downs over the long run gone up the “slope” to greater free speech and expression. People aren’t complete idiots; if we go too extreme, the costs start to become ridiculously obviously greater than the benefits, and people vote to pull back. But a lot of people still have Slipperyslopeaphobia.

      at: http://richardhserlin.blogspot.com/2008/07/slipperyslopeaphobia.html

      • We’ve had the new deal for 70 years and parts thereof are still at issue. The abuse of the commerce clause has distorted both Federalism, and Federal powers. And we struggle continuously against government becoming an oppressor.

        The problem isn’t health care reform in this instance, it about bad legislation. The writer and his sychophants seem persuaded that only one version of legislation is possible, and that this legislation (“we won’t know what’s in it till we pass it legislation”) is the best of all possible worlds.

    • I teach high school English (I know that means that I am a lazy and greedy charlatan, feasting on the public’s hard earned money), and I teach my students about logical fallacies. The slippery slope is my favorite one, and I discuss it mostly in a moral sense (to reflect the way it’s often thrown around in our political discourse):

      Simply put, to refuse to do something that is right simply because it might lead to something wrong is not fair. And it doesn’t have to happen. That we can point to the fact that slippery slopes sometimes happen does not mean it is correct to invoke it as a rational argument. If, say, we end up doing the wrong thing at the end of a line starting with a right thing, then the problem wasn’t doing the right thing at the start of the line – it’s with ending it with the wrong thing. With regard to gay marriage, if we don’t think it is right to let people marry animals, then we should not let people marry animals. In no way does it justify not giving people their Constitutionally-afforded rights.

    • I don’t think that the individual mandate argument is a slippery slope. I can’t speak for others, but I’m not arguing that allowing Congress to mandate buying insurance will lead to Congress mandating us to buy Intel chips. The argument is more legal, if Congress has the power to mandate purchase of insurance, it has the power to mandate the purchase of any other good. It’s not a matter of Congress’s likelihood of using that power, it’s just that the power exists at all.

      I believe it does not, and it doesn’t matter how beneficial or harmful the good is, I just use harmful goods to illustrate people may not want Congress to have that power.

      • I think you are the only one here who has the correct point to make. The basis of the legislation is what’s at issue. Health care reform can be legislated without making people purchase a product from a private company, and I’m sorry if no one here understands that.

        Government is quite prone to assume powers it did not have before, as Georgy turned the presidency into an imperial office, and Barry doesn’t have the ethics to role that back, he’s too taken by power.

        Congress pays practically no attention to the constitutionality or lack thereof, of it’s legislation, leaving that to 9 men and women, who are supposed to make decsions that can conceivably affect our nation and the rights of it’s citizens for centuries…

        If Congress and the pres can make me buy private insurance, then they can conceivably try to make us do anything at all, that their little hearts desire at any given time, even to buying broccoli…

        It’s important that The Commerce Clause not be interpreted in such a way, as to remove the brakes from Congress passing anything they see fit, with the excuse that in one way or another it affects “Commerce”, aqnd that it seemed a good idea at the time.

        Our Legislatures, Executives, and even Judiciary need less power over the Individual, not more…

    • This article’s discussion of slippery slopes is a bit too simplistic. Slippery slopes can be a real phenomenon for at least 5 reasons:
      1) A can lower the cost of B. For example, gun registration lowers the cost of gun confiscation: to confiscate guns, all the government has to do after registration is go out and get them, not find them and get them.

      2) A can change people’s attitudes toward B to make B more likely.
      For example, privacy law A regulates mail so that carriers can only look at the address info on the outside of the envelope. Because this is the law when email comes about, when privacy law B (saying the ISP’s can read only the destination info of the Internet data packets they carry) comes around, B’s supporters can argue this is just the digital equivalent of what is already legal in the analog world. This is an example of the is-ought heuristic: because something is the case, something ought to be the case. In a democratic polity, heuristics are important to consider.

      3) A can lower the cost of B so marginally that people rationally ignore the difference, B can lower the cost of C in like manner, and then in a few decades we are at say ZZ, where no ever thought we could be back when A happened. A conservative jurist could make a plausible argument that this is what has happened with Commerce Clause jurisprudence (we got from the power to regulate “interstate commerce” back in in the 18th century all the way to the power to regulate food grown in one state for that farmer’s own personal consumption in the 20th century).

      4) A can increase the political power of the proponents of B, making B more likely (for example, pro-immigrant immigration law A might lead to more immigrants in the country, which would give pro-immigrant politicians a bigger base, making pro-immigrant law B more likely).

      5) A can increase the perceived political power of proponents of B, making B more likely (for example, gun control legislation A be signed into law might make politicians across the country perceive the gun control lobby as being successful and powerful, leading at least some politicians to revise their stance to favor gun control legislation B as they perceive that the country’s views on the topic of gun control legislation to be tilting in favor).

      I would suggest reading the following from UCLA law prof Eugene Volokh:

      http://www2.law.ucla.edu/volokh/slipperyshorter.pdf

      (This is the shorter version of his article. My five ideas above are roughly from it, as are some of the ideas for the examples I provided.)

    • Let me try to explain why slippery slope arguments–although they admittedly make little policy sense–often make good legal (and perhaps social) sense.
      The law is a funny mix of deontological and consequentialist reasoning. It is also hierarchical. It is easy to imagine a situation where bad rule “A” is impossible, because it is barred by a higher-order rule, or because although popular in a consequentialist sense, it is forbidden by a deontological imperative.
      For example, repealing the Bill of Rights (a higher-order law) would send free speech down a slippery slope, because there are a lot of actors with an incentive to curb free speech. Or deciding the criminal acts don’t generally require a bad state of mind (a deontological rule) would send criminal law down a slippery slope, potentially criminalizing much petty but undesirable behavior. Remember, you can always find somebody who wants to criminalize almost anything.

      • Commenters are right that I didn’t give the full story of slippery slopes in this post. I hinted at that fact in the footnote, saying it would take another post (and another diagram) to do so (at least that). I still don’t know if I’ll ever do that. My purpose in the post — which I admit may not be clear — is to illustrate one situation where a slippery slope argument may appear to make the most sense but, in fact, is misguided. Moreover, I was also talking about SS arguments in political rhetoric, not the law, which I believe I said at least twice. There are other situations I didn’t get into, but commenters have, pointing me to further reading. Thank you!

    • And Slippery Slope arguments (and Obamacare is not such an argument) are necessarily fallacious?

      Vietnam, Afghanistan, Iraq, and now Libya??? No slippery slopes there, no siree…
      Obviously it’s not that we get mired in a war, because the slippery slope of “limited engagement” become “unlimited”, it now seems we are at war, continuously, because it’s all that keeps the economy going, and Barry doesn’t want all those soldiers to come back home and look for jobs that aren’t there…
      Libya ain’t a slippery slope, just like Iraq wasn’t, because the premise we went in under in both cases were gigantic lies…

      “Slippery slopes” look like the excuse Government use to hide the fact that they lied to their citizens…